SUPPLEMENT NO. 1 TO AMENDED AND RESTATED COLLATERAL AGREEMENT
Exhibit 10.13
Execution Version
SUPPLEMENT NO. 1 TO AMENDED AND RESTATED COLLATERAL AGREEMENT
SUPPLEMENT NO. 1 dated as of February 9, 2016 (this “Supplement”), to the Amended and Restated Collateral Agreement dated as of November 25, 2013 (as amended, supplemented or otherwise modified from time to time, the “Collateral Agreement”), among ENDURANCE INTERNATIONAL GROUP HOLDINGS INC., a Delaware corporation (“Holdings”), EIG INVESTORS CORP., a Delaware corporation (the “Borrower”), the other GRANTORS from time to time party thereto and CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as Administrative Agent (in such capacity, the “Administrative Agent”).
A. Reference is made to (a) the Third Amended and Restated Credit Agreement dated of even date with the Collateral Agreement (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Holdings, the Borrower, the Lenders from time to time party thereto and the Administrative Agent, and (b) the Collateral Agreement.
B. Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Collateral Agreement.
C. The initial Grantors entered into the Collateral Agreement in order to induce the Lenders to make Loans and the Issuing Banks to issue Letters of Credit. Section 5.14 of the Collateral Agreement provides that additional Persons may become Grantors under the Collateral Agreement by execution and delivery of an instrument in the form of this Supplement. The undersigned (the “New Grantors”) are executing this Supplement in accordance with the requirements of the Credit Agreement to become Grantors under the Collateral Agreement in order to induce the Lenders to make additional Loans and the Issuing Banks to issue additional Letters of Credit and as consideration for Loans previously made and Letters of Credit previously issued.
Accordingly, the Administrative Agent and the New Grantors agree as follows:
SECTION 1. In accordance with Section 5.14 of the Collateral Agreement, the New Grantors by their signatures below become Grantors under the Collateral Agreement with the same force and effect as if originally named therein as Grantors, and each New Grantor hereby (a) agrees to all the terms and provisions of the Collateral Agreement applicable to it as a Grantor thereunder and (b) represents and warrants that the representations and warranties made by it as a Grantor thereunder are true and correct on and as of the date hereof. In furtherance of the foregoing, each New Grantor, as security for the payment and performance in full of the Secured Obligations, does hereby create and grant to the Administrative Agent, its successors and assigns, for the benefit of the Secured Parties, a security interest in and lien on all of such New Grantor’s right, title and interest in, to and under the Pledged Collateral and the Article 9 Collateral. Each reference to the “Grantors” in the Collateral Agreement shall be deemed to include the New Grantors. The Collateral Agreement is hereby incorporated herein by reference.
SECTION 2. Each of the New Grantors represent and warrant to the Administrative Agent and the other Secured Parties that this Supplement has been duly authorized, executed and delivered by such New Grantor and constitutes such New Grantor’s legal, valid and binding obligation, enforceable against such New Grantor in accordance with its terms, except to the extent that enforceability of such obligations may be limited by applicable bankruptcy, insolvency and other similar laws affecting creditors’ rights generally.
SECTION 3. This Supplement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original but all of which when taken together shall constitute a single contract. Delivery of an executed signature page to this Supplement by facsimile
or other electronic transmission shall be effective as delivery of a manually signed counterpart of this Supplement. This Supplement shall become effective as to each New Grantor when a counterpart hereof executed on behalf of such New Grantor shall have been delivered to the Administrative Agent and a counterpart hereof shall have been executed on behalf of the Administrative Agent, and thereafter shall be binding upon such New Grantor and the Administrative Agent and their respective permitted successors and assigns, and shall inure to the benefit of such New Grantor, the Administrative Agent and the other Secured Parties and their respective successors and assigns, except that such New Grantor shall not have the right to assign or transfer its rights or obligations hereunder or any interest herein (and any such assignment or transfer shall be void) except as expressly provided in this Supplement, the Collateral Agreement and the Credit Agreement.
SECTION 4. Each New Grantor hereby represents and warrants that (a) set forth on Schedule I attached hereto is a schedule with the true and correct legal name of such New Grantor, its jurisdiction of organization and the location of its chief executive office, (b) Schedule II sets forth a true and complete list, with respect to such New Grantor, of (i) all the Equity Interests owned by such New Grantor in any subsidiary and the percentage of the issued and outstanding units of each class of the Equity Interests of the issuer thereof represented by the Pledged Equity Interests owned by such New Grantor and (ii) all the Pledged Debt Securities owned by such New Grantor and (c) Schedule III attached hereto sets forth, as of the date hereof, (i) all of such New Grantor’s Patents, including the name of the registered owner, type, registration or application number and the expiration date (if already registered) of each such Patent owned by such New Grantor, (ii) all of such New Grantor’s Trademarks, including the name of the registered owner, the registration or application number and the expiration date (if already registered) of each such Trademark owned by such New Grantor, and (iii) all of such New Grantor’s Copyrights, including the name of the registered owner, title and, if applicable, the registration number of each such Copyright owned by such New Grantor, and (d) Schedule IV attached hereto sets forth, as of the date hereof, each Commercial Tort Claim (in respect of which a complaint or counterclaim has been prepared or filed by or on behalf of such New Grantor) in an amount reasonably estimated to exceed $1,000,000.
SECTION 5. Except as expressly supplemented hereby, the Collateral Agreement shall remain in full force and effect.
SECTION 6. THIS SUPPLEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. Any provision of this Supplement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
SECTION 8. All communications and notices hereunder shall be in writing and given as provided in Section 5.01 of the Collateral Agreement.
SECTION 9. The New Grantors agree to reimburse the Administrative Agent for its fees and expenses incurred hereunder and under the Collateral Agreement as provided in Section 9.03(a) of the Credit Agreement; provided that each reference therein to the “Borrower” shall be deemed to be a reference to “the New Grantors.”
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the New Grantors and the Administrative Agent have duly executed this Supplement No. 1 to the Amended and Restated Collateral Agreement as of the day and year first above written.
| CONSTANT CONTACT, INC. SINGLEPLATFORM, LLC CARDSTAR, INC., as New Grantors | ||
| By: | /s/ Xxxx Xxxxxxxxxxxx | |
| Name: Xxxx Xxxxxxxxxxxx | ||
| Title: Chief Executive Officer and President | ||
| CARDSTAR PUBLISHING, LLC By: CARDSTAR, INC., its sole member | ||
| By: | /s/ Xxxx Xxxxxxxxxxxx | |
| Name: Xxxx Xxxxxxxxxxxx | ||
| Title: Chief Executive Officer and President | ||
[Supplement No. 1 to Amended and Restated Collateral Agreement]
| CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as Administrative Agent | ||
| By: | /s/ Xxxxxx Xxxx | |
| Name: Xxxxxx Xxxx | ||
| Title: Authorized Signatory | ||
| By: | /s/ Xxxxxx Xxx Xxxxx | |
| Name: Xxxxxx Xxx Xxxxx | ||
| Title: Authorized Signatory | ||
[Supplement No. 1 to Amended and Restated Collateral Agreement]
Schedule I
to Supplement No. 1 to the
Collateral Agreement
NEW GRANTOR INFORMATION
| Legal Name |
Jurisdiction of Organization |
Chief Executive Office | ||
| Constant Contact, Inc. |
DE | 0000 Xxxxxxx Xxxx Xxxxxxx, XX 00000 | ||
| SinglePlatform, LLC |
DE | 0000 Xxxxxxx Xxxx Xxxxxxx, XX 00000 | ||
| CardStar, Inc. |
DE | 0000 Xxxxxxx Xxxx Xxxxxxx, XX 00000 | ||
| CardStar Publishing, LLC |
DC | 0000 Xxxxxxx Xxxx Xxxxxxx, XX 00000 | ||
[Supplement No. 1 to Amended and Restated Collateral Agreement]
Schedule II
to Supplement No. 1 to the
Collateral Agreement
PLEDGED EQUITY INTERESTS
| Grantor |
Issuer |
Number of Certificate |
Number and Class of Equity Interests |
Percentage of Total Equity Interests | ||||
| Constant Contact, Inc. |
EIG Investors Corp. | N/A | 1000 | 100% | ||||
| SinglePlatform, LLC |
Constant Contact, Inc. | N/A | N/A | 100% | ||||
| CardStar, Inc. |
Constant Contact, Inc. | CS -1 | 100 | 100% | ||||
| CardStar Publishing, LLC |
CardStar, Inc. | N/A | N/A | 100% | ||||
PLEDGED DEBT SECURITIES
None.
[Supplement No. 1 to Amended and Restated Collateral Agreement]
Schedule III
to Supplement No. 1 to the
Collateral Agreement
INTELLECTUAL PROPERTY
Patents
| GRANTOR |
TITLE |
COUNTRY |
APPLICATION |
APPLICATION |
ISSUE |
PATENT | ||||||
| Constant Contact, Inc. |
Visual editor for electronic mail | United States | 1/19/2007 | 11/655731 | 1/31/12 | 8108763 | ||||||
| Cardstar, Inc. |
Identification related technology | United States | 8/23/2010 | 12/861273 | 6/18/00 | 0000000 | ||||||
| Constant Contact, Inc. |
Multichannel authoring and content management system | United States | 12/23/2014 | 14/580757 | ||||||||
| Constant Contact, Inc. |
Multichannel authoring and content management system |
United States | 12/23/2014 | 14/580790 | ||||||||
[Supplement No. 1 to Amended and Restated Collateral Agreement]
Trademarks
| Item |
Name |
Registered Owner |
Application Number |
Registration Number |
Country | |||||
| 1. |
APPCONNECT | Constant Contact, Inc. | 76699962 | 3797962 | United States | |||||
| 2. |
CARDSTAR | Cardstar, Inc. | 85016452 | 3916404 | United States | |||||
| 3. |
CONNECT.INFORM.GROW | Constant Contact, Inc. | 76694463 | 3641645 | United States | |||||
| 4. |
CONSTANT CONTACT | Constant Contact, Inc. | 75588929 | 2363937 | United States | |||||
| 5. |
CONSTANT CONTACT | Constant Contact, Inc. | 76628181 | 3052770 | United States | |||||
| 6. |
CONSTANT CONTACT HINTS & TIPS | Constant Contact, Inc. | 77847730 | 4179792 | United States | |||||
| 7. |
CONSTANT CONTACT UNIVERSITY | Constant Contact, Inc. | 76698233 | 0000000 | Xxxxxx Xxxxxx | |||||
| 8. |
EMAIL MARKETING 000 | Xxxxxxxx Xxxxxxx, Xxx. | 00000000 | 0000000 | Xxxxxx Xxxxxx | |||||
| 9. |
ENGAGEMENT MARKETING | Constant Contact, Inc. | 85210149 | 4403697 | United States | |||||
| 10. |
ENVELOPE LOGO |
Constant Contact, Inc. | 76668144 | 3443361 | United States | |||||
| 11. |
ENVELOPE LOGO (BLACK & WHITE) |
Constant Contact, Inc. | 77443935 | 3549442 | United States | |||||
| 12. |
EVENTSPOT | Constant Contact, Inc. | 85613788 | 4296541 | United States | |||||
| 13. |
FANBRUARY | Constant Contact, Inc. | 76710744 | 4228241 | United States | |||||
| 14. |
HELPING SMALL BUSINESS DO MORE BUSINESS | Constant Contact, Inc. | 86294587 | 4667140 | United States | |||||
| 15. |
KNOWHOW | Constant Contact, Inc. | 85169286 | 4176390 | United States | |||||
[Supplement No. 1 to Amended and Restated Collateral Agreement]
| Item |
Name |
Registered Owner |
Application Number |
Registration Number |
Country | |||||
| 16. |
MISCELLANEOUS DESIGN |
Constant Contact, Inc. | 76711908 | 4303113 | United States | |||||
| 17. |
SAFE SUBSCRIBE | Constant Contact, Inc. | 77028856 | 3627455 | United States | |||||
| 18. |
SAFE UNSUBSCRIBE | Constant Contact, Inc. | 78183577 | 2887624 | United States | |||||
| 19. |
SAVELOCAL | Constant Contact, Inc. | 85707986 | United States | ||||||
| 20. |
SAVELOCAL And Design |
Constant Contact, Inc. | 85546153 | 4369507 | United States | |||||
| 21. |
SIMPLE SHARE | Constant Contact, Inc. | 85897546 | 4706165 | United States | |||||
| 22. |
SOCIAL CAMPAIGNS And Design |
Constant Contact, Inc. | 85866693 | 4480091 | United States | |||||
| 23. |
SYNCSCAN | Cardstar, Inc. | 85016453 | 3916405 | United States | |||||
| 24. |
THE SMART WAY TO REACH YOUR CUSTOMERS | Constant Contact, Inc. | 76666838 | 3443354 | United States | |||||
| 25. |
KNOWHOW And Design |
Constant Contact, Inc. | 1502500 | 1502500 | Australia | |||||
| 26. |
SIMPLE SHARE | Constant Contact, Inc. | 1474145 | 1474145 | Australia | |||||
| 27. |
CONNECT.INFORM.GROW | Constant Contact, Inc. | 0000000 | TMA769058 | Canada | |||||
| 28. |
CONSTANT CONTACT | Constant Contact, Inc. | 0000000 | TMA768799 | Canada | |||||
| 29. |
CONSTANT CONTACT TOOLKIT | Constant Contact, Inc. | 0000000 | Canada | ||||||
| 30. |
EMAIL MARKETING 101 | Constant Contact, Inc. | 0000000 | TMA715481 | Canada | |||||
| 31. |
ENGAGEMENT MARKETING | Constant Contact, Inc. | 0000000 | TMA853281 | Canada | |||||
[Supplement No. 1 to Amended and Restated Collateral Agreement]
| Item |
Name |
Registered Owner |
Application Number |
Registration Number |
Country | |||||
| 32. |
ENVELOPE LOGO (BLACK & WHITE) |
Constant Contact, Inc. | 1432345 | TMA768800 | Canada | |||||
| 33. |
EVENTSPOT | Constant Contact, Inc. | 0000000 | TMA862312 | Canada | |||||
| 34. |
HELPING SMALL BUSINESS DO MORE BUSINESS |
Constant Contact, Inc. | 0000000 | Canada | ||||||
| 35. |
KNOWHOW | Constant Contact, Inc. | 0000000 | TMA873140 | Canada | |||||
| 36. |
SAVELOCAL And Design |
Constant Contact, Inc. | 0000000 | TMA901054 | Canada | |||||
| 37. |
SIMPLE SHARE | Constant Contact, Inc. | 0000000 | TMA848958 | Canada | |||||
| 38. |
SOCIAL CAMPAIGNS | Constant Contact, Inc. | 0000000 | TMA871539 | Canada | |||||
| 39. |
CONSTANT CONTACT | Constant Contact, Inc. | 004819652 | 004819652 | European Community | |||||
| 40. |
CONSTANT CONTACT TOOLKIT | Constant Contact, Inc. | 013451414 | 01345414 | European Community | |||||
| 41. |
ENVELOPE LOGO (BLACK & WHITE) |
Constant Contact, Inc. | 007194012 | 007194012 | European Community | |||||
| 42. |
KNOWHOW And Device |
Constant Contact, Inc. | 009813635 | 009813635 | European Community | |||||
| 43. |
SIMPLE SHARE | Constant Contact, Inc. | 010657724 | 010657724 | European Community | |||||
| 44. |
SOCIAL CAMPAIGNS And Design |
Constant Contact, Inc. | 011226611 | 011226611 | European Community | |||||
| 45. |
EVENTSPOT | Constant Contact, Inc. | UK00002620114 | UK00002620114 | United Kingdom | |||||
[Supplement No. 1 to Amended and Restated Collateral Agreement]
Trade Names
None.
[Supplement No. 1 to Amended and Restated Collateral Agreement]
Copyrights
Copyright Registrations
| Type of Work |
Title |
Claimant |
Date of Creation |
Date of Publication |
Registration No. Registration Date | |||||
| Text |
Engagement Marketing by Xxxx X. Xxxxxxx | Constant Contact, Inc. | 2011 | 04/05/2012 | TX0007555536 06/08/2012 | |||||
| Text |
CardStar Merchant Database 1.0 | CardStar, Inc. | 2009 | 01/14/2009 | TX0007148925 09/30/2009 | |||||
| Text |
CardStar Merchant Database 1.2 | CardStar, Inc. | 2009 | 04/21/2009 | TX0007148919 09/30/2009 | |||||
| Text |
CardStar Merchant Database 1.3 | CardStar, Inc. | 2009 | 06/25/2009 | TX0007148922 09/30/2009 | |||||
| Text |
CardStar Merchant Database 1.4 | CardStar, Inc. | 2009 | 10/06/2009 | TXu001659807 09/30/2009 | |||||
| Text |
CardStar Merchant Database 1.1 | CardStar, Inc. | 2009 | 02/17/2009 | TX0007148924 09/30/2009 | |||||
| Text |
CardStar Merchant Database 2.0 | CardStar, Inc. | 2009 | 12/02/2009 | TX0007199525 02/23/2010 | |||||
| Text |
CardStar Merchant Database 2.1 | CardStar, Inc. | 2010 | 03/17/2010 | TX0007301245 06/18/2010 | |||||
| Text |
CardStar Merchant Database 3.0 | CardStar, Inc. | 2010 | 07/28/2010 | TX0000000000 09/27/2010 | |||||
Copyright Applications
None.
[Supplement No. 1 to Amended and Restated Collateral Agreement]
Schedule IV
to Supplement No. 1 to the
Collateral Agreement
COMMERCIAL TORT CLAIMS
None.
