Exhibit 10.12
FOURTH AMENDMENT TO THE CREDIT AGREEMENT
This FOURTH AMENDMENT TO THE CREDIT AGREEMENT dated as of February 1,
2002 (this "Fourth Amendment") is among MEMBERWORKS INCORPORATED, a Delaware
corporation (the "Company"), 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 Company, the Lenders, and the Agent entered
into a Credit Agreement dated as of September 15, 1999, which Credit Agreement
was amended pursuant to that certain First Amendment to the Credit Agreement
dated as of February 25, 2000, that certain Second Amendment to the Credit
Agreement dated as of March 13, 2001 and that Waiver and Third Amendment to the
Credit Agreement dated as of November 14, 2001 (as so amended, the "Existing
Credit Agreement").
The Company has requested that the Agent and the Lenders, and the Agent
and the Lenders are willing to, among other things, extend the Final Maturity
Date to April 1, 2002 upon the terms and conditions presented herein.
Accordingly, the Company, the Lenders and the Agent agree as follows:
Section 1.1 Amendments to the Existing Credit Agreement. Effective as
of the date hereof and subject to the satisfaction of the conditions precedent
set forth in Section 1.2 hereof, the Existing Credit Agreement is hereby amended
as follows:
(a) The definition of "Final Maturity Date" in Section 1.1 of
the Existing Credit Agreement is deleted in its entirety and replaced with the
following:
"Final Maturity Date" shall mean April 1, 2002 or
such later date as determined in accordance with Subsection
2.8.
(b) The definition of "Quarterly Payment Date" in Section 1.1
of the Existing Credit Agreement is deleted in its entirety and replaced with
the following:
"Quarterly Payment Dates" shall mean the first day of
each April, July, October and January of each year.
Section 1.2 Conditions of Effectiveness. This Fourth Amendment shall
become effective when, and only when, the Agent and each of the Lenders shall
have received a counterpart of this Fourth Amendment executed by the Company and
the Agent shall have additionally received, in form and substance satisfactory
to the Agent and the Lenders, all corporate and other proceedings, and all
documents, instruments and other legal matters in connection with the
transactions contemplated by this Fourth Amendment, as the Lenders and the Agent
may reasonably request, all in form and substance satisfactory to the Agent and
its counsel which request the Lenders and Agent acknowledge and agree, by their
execution hereof, has been satisfied in full.
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Section 1.3 Representations and Warranties of the Company The Company
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); provided however, that Schedule 5.7 of the Existing Credit Agreement is
deleted in its entirety and restated in the form of Schedule 5.7 annexed hereto;
(b) No Event of Default or Default has occurred and is
continuing or would result from the signing of this Fourth Amendment or the
transactions contemplated hereby;
(c) There has been no material adverse change in the financial
condition, operations, Properties, business or business prospects of the Company
and its Subsidiaries, if any, since June 30, 2001.
(d) The execution, delivery and performance by the Company of
this Fourth 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 applicability to and binding
upon the Company 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 Company or any
Subsidiary is a party or by which it or its properties may be bound.
(e) This Fourth Amendment and the Existing Credit Agreement,
as amended hereby, constitute the legal, valid and binding obligations of the
Company, enforceable against the Company 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 Company or any officer or director of the Company to the
Lenders or the Agent in connection with the negotiation of, or pursuant to the
terms of, this Fourth 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 1.4 Reference to and Effect on the Credit Agreement.
(a) Upon the effectiveness of this Fourth 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.
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(b) Except as specifically amended and waived 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 Fourth
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 1.5 Costs, Expenses and Taxes. The Company agrees to pay on
demand all reasonable costs and expenses of the Lenders and the Agent in
connection with the preparation, execution and delivery of this Fourth 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
Company shall pay any and all stamp and other taxes payable or determined to be
payable in connection with the execution and delivery of this Fourth 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 1.6 Execution in Counterparts. This Fourth 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 1.7 Governing Law. This Fourth Amendment shall be governed
by, and construed in accordance with, the laws of the State of New York.
Section 1.8 Defined Terms. Capitalized terms used herein which are
not expressly defined herein shall have the meanings ascribed to them in the
Existing Credit Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Fourth
Amendment to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
MEMBERWORKS INCORPORATED
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: SVP and CFO
XXXXX BROTHERS XXXXXXXX & CO., as Agent
By: /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
Title: Vice President
XXXXX BROTHERS XXXXXXXX & CO., as Lender
By: /s/ Xxxx X. Xxxx
-----------------------------------------
Name: Xxxx X. Xxxx
Title: Vice President
LASALLE BANK NATIONAL ASSOCIATION, as Lender
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Vice President
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SCHEDULE A
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