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Exhibit 10.9
FIRST AMENDMENT TO THE CREDIT AGREEMENT
This FIRST AMENDMENT TO THE CREDIT AGREEMENT dated as of February 25,
2000 (this "First Amendment") is between MEMBERWORKS INCORPORATED, a Delaware
corporation (the "Borrower"), the lenders parties hereto (each a "Lender" and
collectively the "Lenders") and XXXXX BROTHERS XXXXXXXX & CO., as agent for the
Lenders (in such capacity, the "Agent").
PRELIMINARY STATEMENTS. The Borrower, the Lenders and the Agent entered
into a Credit Agreement dated as of September 15, 1999 (the "Existing Credit
Agreement"). The Borrower has requested the Lenders amend the Existing Credit
Agreement to increase the Lenders' commitment. The Lenders are agreeable to the
Borrower's request.
Accordingly, the Borrower, the Lenders and the Agent agree as follows:
Section 1. Amendments to the Credit Agreement. Effective as of the date
hereof and subject to the satisfaction of the conditions precedent set forth in
Section 2 hereof, the Existing Credit Agreement is hereby amended as follows:
(a) The definition of "Total Commitment" in Section 1.1 of the Existing
Credit Agreement is replaced with the following:
"Total Commitment" shall mean $20,000,000.
(b) The signature page executed by Xxxxx Brothers Xxxxxxxx & Co. is
revised to replace the Commitment of $10,000,000 with $20,000,000.
(c) Exhibit A of the Existing Credit Agreement (FORM OF NOTE) is
replaced with Exhibit A hereto.
Section 2. Conditions of Effectiveness. This First Amendment shall
become effective when, and only when, the Agent shall have received a
counterpart of this First Amendment executed by the Borrower and shall have
additionally received, in form and substance satisfactory to the Agent and the
Lenders:
(a) A note payable to each Lender duly executed by the Borrower in the
form of Exhibit A hereto;
(b) A reaffirmation of the Security Agreement duly executed by the
Borrower;
(c) A reaffirmation of the Subsidiary Guaranty and the Subsidiary
Security Agreement duly executed by Xxxxxxxxx;
(d) A copy of resolutions, in form and substance reasonably
satisfactory to the Agent, of the Board of Directors of the Company authorizing
the execution, delivery and performance
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by it of this First Amendment, the Notes and the other documents delivered in
connection hereof certified by the Secretary or an Assistant Secretary of the
Company, which certificate shall state that the resolutions thereby certified
are in full force and effect and have not been amended, modified, revoked or
rescinded as of the date hereof;
(e) A certificate dated the date hereof of the Secretary or an
Assistant Secretary of each of the Company and Xxxxxxxxx certifying (i) as to
the incumbency and signatures of its officers executing this First Amendment,
the Notes and the other documents delivered in connection hereof (as applicable)
and (ii) that each of the certificate of incorporation and bylaws delivered in
connection with the Existing Credit Agreement is in full force and effect and
has not been amended, modified, revoked or rescinded as of the date hereof,
together with evidence of the incumbency of such Secretary or Assistant
Secretary;
(f) An executed legal opinion dated the date hereof and addressed to
the Agent and the Lenders, of Xxxxxxx Xxxxxx X'Xxxxxx & Xxxxxxxxxxx LLP, counsel
to the Borrower and Xxxxxxxxx, in a form reasonably satisfactory to the Agent,
the Lenders and each of their special counsel;
(g) payment to Day, Xxxxx & Xxxxxx LLP, special counsel to the Agent
and the Lenders, of its legal fees and disbursements; and
(h) All corporate and other proceedings, and all documents, instruments
and other legal matters in connection with the transactions contemplated by this
First Amendment as the Lenders and the Agent may reasonably request, all in form
and substance satisfactory to the Agent and its counsel.
Section 3. Representations and Warranties of the Borrower. The Borrower
represents as follows:
(a) The representations and warranties contained in Section 5 of the
Existing Credit Agreement are correct on and as of the date hereof as though
made on and as of such date (or, if such representation or warranty is expressly
stated to have been made as of a specific date, as of such specific date);
(b) No Event of Default or Default has occurred and is continuing or
would result from the signing of this First Amendment or the transactions
contemplated thereby;
(c) There has been no material adverse change in the financial
condition, operations, Properties, business or business prospects of the
Borrower and its Subsidiaries, if any, since June 30, 1999.
(d) The execution, delivery and performance by the Borrower of this
First Amendment have been duly authorized by all necessary corporate action and
do not and will not (i) require any consent or approval of its shareholders;
(ii) violate any provisions of its articles of incorporation or by-laws; (iii)
violate any provision of, or require any filing, registration, consent or
approval under, any law, rule, regulation (including without limitation,
Regulation U and X), order, writ, judgment, injunction, decree, determination or
award presently in effect having
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applicability to and binding upon the Borrower or any Subsidiary; or (iv) result
in a breach of or constitute a default or require any consent under any
indenture or loan or credit agreement or any other material agreement, lease or
instrument to which the Borrower or any Subsidiary is a party or by which it or
its properties may be bound.
(e) This First Amendment and the Existing Credit Agreement, as amended
hereby, constitute the legal, valid and binding obligations of the Borrower,
enforceable against the Borrower in accordance with their respective terms,
except to the extent that such enforcement may be limited by applicable
bankruptcy, insolvency and other similar laws affecting creditors' rights
generally and by general principles of equity.
(f) No information, exhibit or report furnished in writing by or on
behalf of the Borrower or any officer or director of the Borrower to the Lenders
or the Agent in connection with the negotiation of, or pursuant to the terms of,
this First Amendment contained when made any material misstatement of fact or
omitted to state a material fact necessary to make the statements contained
therein not misleading.
Section 4. Reference to and Effect on the Credit Agreement.
(a) Upon the effectiveness of this First Amendment, on and after the
date hereof, each reference in the Credit Agreement to "this Credit Agreement",
"this Agreement", "hereunder", "hereof", "herein" or words of like import shall
mean and be a reference to the Existing Credit Agreement as amended hereby.
(b) Except as specifically amended above, the Existing Credit Agreement
shall remain in full force and effect and is hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this First Amendment
shall not operate as a waiver of any right, power or remedy of the Lenders under
the Existing Credit Agreement, nor constitute a waiver of any provision of the
Existing Credit Agreement.
Section 5. Costs, Expenses and Taxes. The Borrower agrees to pay on
demand all costs and expenses of the Lenders and the Agent in connection with
the preparation, execution and delivery of this First Amendment and the other
instruments and documents to be delivered hereunder, including, without
limitation, the reasonable fees and out-of-pocket expenses of counsel for the
Lenders with respect thereto and with respect to advising the Lenders as to its
rights and responsibilities hereunder and thereunder. In addition, the Borrower
shall pay any and all stamp and other taxes payable or determined to be payable
in connection with the execution and delivery of this First Amendment and the
other instruments and documents to be delivered hereunder, and agrees to save
the Lenders harmless from and against any and all liabilities with respect to or
resulting from any delay in paying or omission to pay such taxes.
Section 6. Execution in Counterparts. This First Amendment may be
executed in any number of counterparts, each of which when so executed and
delivered shall be deemed to be an original and all of which taken together
shall constitute but one and the same instrument.
Section 7. Governing Law. This First Amendment shall be governed by,
and construed in accordance with, the laws of the State of New York.
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Section 8. Defined Terms. Capitalized terms used herein which are not
expressly defined herein shall have the meanings ascribed to them in the Credit
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to be executed by their respective officers thereunto duly authorized, as of the
date first above written.
MEMBERWORKS INCORPORATED
By /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Senior Vice President and CFO
XXXXX BROTHERS XXXXXXXX & CO.
By /s/ X. Xxxxxx Xxxxxxxx III
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Name: X. Xxxxxx Xxxxxxxx III
Title: Senior Manager
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