Second Amendment to Credit Agreement, dated as of May 4, 2018, among Affinion Group, Inc., as Borrower, HPS Investment Partners, LLC, as administrative agent, the Revolving Facility Lenders and for purposes of Section 3 thereof each other Loan Party party thereto
Exhibit 10.1
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT, dated as of May 4, 2018 (this “Second Amendment”), is made by and among AFFINION GROUP, INC., a Delaware corporation (the “Borrower”), HPS INVESTMENT PARTNERS, LLC, as administrative agent (in such capacity, together with its successors in such capacity, the “Administrative Agent”), the Revolving Facility Lenders and for purposes of Section 3 hereof each other Loan Party party hereto. Each capitalized term used herein but not otherwise defined herein has the meaning given such term in the Amended Credit Agreement.
RECITALS
A. AFFINION GROUP HOLDINGS, INC., a Delaware corporation (“Holdings”), the Borrower, the Lenders from time to time party thereto and the Administrative Agent are parties to that certain Credit Agreement, dated as of May 10, 2017, (as amended by that First Amendment to Credit Agreement, dated November 30, 2017 and as further amended, restated, amended and restated, supplemented, waived or otherwise modified from time to time, the “Existing Credit Agreement”; and as amended hereby, the “Amended Credit Agreement”), pursuant to which the Lenders have made certain Loans and provided certain Commitments (subject to the terms and conditions thereof) to the Borrower; and
B. The Borrower wishes, and the Revolving Facility Lenders signatory hereto and the Administrative Agent are willing, to amend the Existing Credit Agreement pursuant to Section 9.09(h) of the Existing Credit Agreement as more fully described herein.
NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Amendments to Existing Credit Agreement. As of the Second Amendment Effective Date (as defined below), the Existing Credit Agreement is hereby amended by replacing the reference to “the day that is the twelve month anniversary of the Closing Date” in Section 2.08(a)(i)(x) of the Existing Credit Agreement, with “August 10, 2018”.
SECTION 2. Conditions to Effectiveness. This Second Amendment shall not become effective until the date (the “Second Amendment Effective Date”) on which each of the following conditions is satisfied (or waived in accordance with Section 9.09 of the Existing Credit Agreement):
| (a) | The Administrative Agent shall have received from all Revolving Facility Lenders, the Borrower and the other parties hereto, executed counterparts of this Second Amendment. |
| (b) | The Administrative Agent shall have received, on behalf of itself, the Lenders, each Issuing Bank and each Swingline Lender on the Second Amendment Effective Date, the favorable written opinion of Akin Gump Strauss Hauer & Feld LLP, counsel to the Borrower, (i) in form and |
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| substance reasonably satisfactory to the Administrative Agent, (ii) dated as of the Second Amendment Effective Date and (iii) addressed to the Lenders, each Issuing Bank, each Swingline Lender and the Administrative Agent, covering such matters relating to this Second Amendment and the Loan Documents as the Administrative Agent shall reasonably request. |
| (c) | The Administrative Agent shall have received a customary certificate from a Responsible Officer of the Borrower, in form and substance satisfactory to the Administrative Agent and addressed to the Administrative Agent, the Lenders, each Issuing Bank and each Swingline Lender, certifying that Holdings and its subsidiaries, on a consolidated basis are solvent. |
| (d) | The Administrative Agent shall have received a certificate from a Responsible Office of Holdings, dated the Second Amendment Effective Date, confirming: (i) the representations and warranties set forth in the Loan Documents that are qualified by materiality shall be true and correct, and the representations and warranties that are not so qualified shall be true and correct in all material respects, in each case on and as of the date of the Second Amendment Effective Date and (ii) no Event of Default or Default has occurred and is continuing or would result here from. |
| (e) | The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Second Amendment Effective Date and, to the extent invoiced at least 3 Business Days prior to the Second Amendment Effective Date, all other amounts due and payable pursuant to the Loan Documents on or prior to the Second Amendment Effective Date, including reimbursement or payment of all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of Latham & Watkins LLP) required to be reimbursed or paid by the Loan Parties hereunder, under any Loan Document. |
SECTION 3. Ratification and Affirmation. The Borrower and each other Loan Party does hereby adopt, ratify, and confirm the Existing Credit Agreement and the other Loan Documents, as amended hereby, and its obligations thereunder. The Borrower and each Other Loan Party hereby (a) acknowledges, renews and extends its continued liability under each Loan Document and agrees that each Loan Document remains in full force and effect, except as expressly amended hereby, notwithstanding the amendments contained herein and shall not be impaired or limited by the execution or effectiveness of this Amendment, (b) confirms and ratifies all of its obligations under the Loan Documents, including its obligations and the Liens and security interests granted by it under the Security Documents and (c) confirms that all references in such Security Documents to the “Credit Agreement” (or words of similar import) refer to the Existing Credit Agreement as amended and supplemented hereby without impairing any such obligations or Liens in any respect. Notwithstanding the conditions to effectiveness set forth in this Amendment, no consent by any Loan Party (other than the Borrower) is required by the terms of the Credit Agreement or any other Loan Document to the amendments to the Credit Agreement effected pursuant to this Amendment and nothing in the Amended Credit Agreement, this Amendment or any other Loan Document shall be deemed to require its consent to any future amendments to the Credit Agreement, except to the extent expressly set forth in Section 9.09 of the Amended Credit Agreement.
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SECTION 4. Miscellaneous.
| (a) | Confirmation. The provisions of the Loan Documents, as amended by this Second Amendment, shall remain in full force and effect in accordance with their terms following the effectiveness of this Second Amendment. |
| (b) | Loan Document. This Second Amendment and each agreement, instrument, certificate or document executed by the Borrower or any other Loan Party or any of its or their respective officers in connection therewith are “Loan Documents” as defined and described in the Amended Credit Agreement and all of the terms and provisions of the Loan Documents relating to other Loan Documents shall apply hereto and thereto. |
| (c) | Counterparts. This Second Amendment may be executed by one or more of the parties hereto in any number of separate counterparts, and all of such counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of this Second Amendment by facsimile or other electronic transmission shall be effective as delivery of a manually executed counterpart hereof. |
| (d) | ENTIRE AGREEMENT. THIS SECOND AMENDMENT, THE AMENDED CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS EXECUTED IN CONNECTION HEREWITH AND THEREWITH REPRESENT THE FINAL AND ENTIRE AGREEMENT RELATING TO THE SUBJECT MATTER HEREOF AND THEREOF AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR UNWRITTEN ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES. THERE ARE NO PROMISES, UNDERTAKINGS, REPRESENTATIONS OR WARRANTIES BY THE ADMINISTRATIVE AGENT OR ANY LENDER, ISSUING BANK OR SWINGLINE LENDER RELATIVE TO THE SUBJECT MATTER HEREOF NOT EXPRESSLY SET FORTH OR REFERRED TO HEREIN OR IN THE OTHER LOAN DOCUMENTS. |
| (e) | GOVERNING LAW. THIS SECOND AMENDMENT (INCLUDING, BUT NOT LIMITED TO, THE VALIDITY AND ENFORCEABILITY HEREOF) SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. |
| (f) | THE PROVISIONS OF SECTION 9.13 AND 9.17 OF THE AMENDED CREDIT AGREEMENT SHALL APPLY, MUTATIS MUTANDIS, TO THIS SECOND AMENDMENT. |
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IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to be duly executed and delivered as of the date first written above.
| AFFINION GROUP, INC., as Borrower | ||
| By: | /s/ Gregory S. Miller | |
| Name: | Gregory S. Miller | |
| Title: Executive Vice President and Chief Financial Officer | ||
[Signature Page — Second Amendment to Credit Agreement]
| AFFINION GROUP HOLDINGS, INC. AFFINION BENEFITS GROUP, LLC AFFINION BRAZIL HOLDINGS I, LLC AFFINION BRAZIL HOLDINGS II, LLC AFFINION DATA SERVICES, INC. AFFINION DEVELOPMENTS, LLC AFFINION GROUP, LLC AFFINION INVESTMENTS II, LLC AFFINION PD HOLDINGS, INC. AFFINION PUBLISHING, LLC BREAKFIVE, LLC CARDWELL AGENCY, INC. CCAA, CORPORATION CONNEXIONS LOYALTY GLOBAL TRAVEL CONNEXIONS LOYALTY TRAVEL SOLUTIONS CONNEXIONS LOYALTY, INC. CONNEXIONS SM VENTURES, LLC CONNEXIONS SMV, LLC GLOBAL PROTECTION SOLUTIONS, LLC LIFT MEDIA, LLC LONG TERM PREFERRED CARE, INC. LOYALTY TRAVEL AGENCY LLC PROPP CORP. TRAVELERS ADVANTAGE SERVICES, LLC TRILEGIANT AUTO SERVICES, INC. TRILEGIANT CORPORATION TRILEGIANT INSURANCE SERVICES, INC. TRILEGIANT RETAIL SERVICES, INC. WATCHGUARD REGISTRATION SERVICES, WEBLOYALTY HOLDINGS, INC. WEBLOYALTY.COM, INC. | ||
| By: | /s/ Gregory S. Miller | |
| Name: | Gregory S. Miller | |
| Title: Executive Vice President and Chief Financial Officer | ||
[Signature Page — Second Amendment to Credit Agreement]
| AFFINION INVESTMENTS, LLC | ||
| By: | Affinion Group, Inc., its non-economic managing member | |
| By: | /s/ Gregory S. Miller | |
| Name: | Gregory S. Miller | |
| Title: Executive Vice President and Chief Financial Officer | ||
| AFFINION NET PATENTS, INC. | ||
| By: | /s/ Gregory S. Miller | |
| Name: | Gregory S. Miller | |
| Title: Secretary and Treasurer | ||
| CONNEXIONS LOYALTY ACQUISITION, LLC | ||
| By: | /s/ Gregory S. Miller | |
| Name: | Gregory S. Miller | |
| Title: | Vice President and Treasurer |
[Signature Page — Second Amendment to Credit Agreement]
| CUC ASIA HOLDINGS, by its partners | ||
| TRILEGIANT CORPORATION | ||
| By: | /s/ Gregory S. Miller | |
| Name: Gregory S. Miller | ||
| Title: Executive Vice President and Chief Financial Officer | ||
| and | ||
| TRILEGIANT RETAIL SERVICES, INC. | ||
| By: | /s/ Gregory S. Miller | |
| Name: | Gregory S. Miller | |
| Title: Executive Vice President and Chief Financial Officer | ||
| INCENTIVE NETWORKS LLC | ||
| By: | /s/ Gregory S. Miller | |
| Name: | Gregory S. Miller | |
| Title: Chief Financial Officer | ||
| AFFINION INTERNATIONAL HOLDINGS LIMITED | ||
| By: | /s/ Michele Conforti | |
| Name: | Michele Conforti | |
| Title: | Director |
[Signature Page — Second Amendment to Credit Agreement]
| AFFINION INTERNATIONAL LIMITED | ||
| By: | /s/ Michele Conforti | |
| Name: Michele Conforti | ||
| Title: Director | ||
| AFFINION INTERNATIONAL TRAVEL HOLDCO LIMITED | ||
| By: | /s/ Michele Conforti | |
| Name: Michele Conforti | ||
| Title: Director | ||
| LOYALTY VENTURES LIMITED | ||
| By: | /s/ Martin Child | |
| Name: Martin Child | ||
| Title: Director | ||
| WEBLOYALTY INTERNATIONAL LIMITED | ||
| By: | /s/ Martin Child | |
| Name: Martin Child | ||
| Title: Director | ||
| AFFINION INTERNATIONAL B.V. | ||
| By: | /s/ Richard Kemperman | |
| Name: Richard Kemperman | ||
| Title: Director | ||
[Signature Page — Second Amendment to Credit Agreement]
| BASSAE HOLDING B.V. | ||
| By: | /s/ Richard Kemperman | |
| Name: Richard Kemperman | ||
| Title: Director | ||
| WEBLOYALTY HOLDINGS COÖPERATIEF U.A. | ||
| By: | /s/ Richard Kemperman | |
| Name: Richard Kemperman | ||
| Title: Director | ||
| WEBLOYALTY INTERNATIONAL SÀRL | ||
| By: | /s/ Martin Child | |
| Name: Martin Child | ||
| Title: President | ||
[Signature Page — Second Amendment to Credit Agreement]
| HPS INVESTMENT PARTNERS, LLC, as Administrative Agent | ||
| By: | /s/ Colbert Cannon | |
| Name: Colbert Cannon | ||
| Title: Managing Director | ||
[Signature Page — Second Amendment to Credit Agreement]
| SLF 2016 INSTITUTIONAL HOLDINGS L.P., as a Revolving Facility Lender | ||
| By: | HPS INVESTMENT PARTNERS, LLC, its manager | |
| By: | /s/ Colbert Cannon | |
| Name: | Colbert Cannon | |
| Title: Managing Director | ||
| SPECIALTY LOAN FUND 2016-L, L.P., as a Revolving Facility Lender | ||
| By: | HPS INVESTMENT PARTNERS, LLC, its manager | |
| By: | /s/ Colbert Cannon | |
| Name: | Colbert Cannon | |
| Title: Managing Director | ||
| RED CEDAR FUND 2016, L.P., as a Revolving Facility Lender | ||
| By: | HPS INVESTMENT PARTNERS, LLC, its manager | |
| By: | /s/ Colbert Cannon | |
| Name: | Colbert Cannon | |
| Title: Managing Director | ||
| SPECIALTY LOAN FUND 2016, L.P., as a Revolving Facility Lender | ||
| By: | HPS INVESTMENT PARTNERS, LLC, its manager | |
| By: | /s/ Colbert Cannon | |
| Name: | Colbert Cannon | |
| Title: Managing Director | ||
[Signature Page — Second Amendment to Credit Agreement]
| PRIVATE LOAN OPPORTUNITIES FUND, L.P., as a Revolving Facility Lender | ||
| By: | HPS INVESTMENT PARTNERS, LLC, its manager | |
| By: | /s/ Colbert Cannon | |
| Name: | Colbert Cannon | |
| Title: Managing Director | ||
| CACTUS DIRECT LENDING FUND, L.P., as a Revolving Facility Lender | ||
| By: | HPS INVESTMENT PARTNERS, LLC, as Investment Manager | |
| By: | /s/ Colbert Cannon | |
| Name: | Colbert Cannon | |
| Title: Managing Director | ||
[Signature Page — Second Amendment to Credit Agreement]
