First Amendment To Intercreditor and Collateral Agency Agreement
Exhibit
99.3
First Amendment To Intercreditor and
Collateral Agency Agreement
Collateral Agency Agreement
This First Amendment to Intercreditor and Collateral Agency Agreement (herein, the
“Amendment”) is entered into as of January 3, 2006, by and among Xxxxxx X.X. as successor by merger
with Xxxxxx Trust and Savings Bank (“Xxxxxx”), acting as collateral agent for the Secured Creditors
(Xxxxxx acting as such collateral agent being hereinafter referred to as the “Collateral Agent”)
and the Senior Creditor.
Preliminary Statements
A. The Collateral Agent and the Secured Creditors have entered into a certain Intercreditor
and Collateral Agency Agreement, dated as of April 10, 2003 (the “Intercreditor Agreement”). All
capitalized terms used herein without definition shall have the same meanings herein as such terms
have in the Intercreditor Agreement.
B. Alliance Data Systems Corporation (the “Borrower”) has requested that certain lenders (the
“New Lenders”) make available additional loan facilities to the Borrower pursuant to a Credit
Agreement dated as of January 3, 2006 (the “New Credit Agreement”) among the Borrower, the
Guarantors party thereto, the banks party thereto and Xxxxxx X.X., as administrative agent.
C. As a condition precedent to the New Credit Agreement, the New Lenders require that certain
amendments be made to the Intercreditor Agreement to confirm that the New Lenders are “Senior
Creditors” under the Intercreditor Agreement.
D. The existing Senior Creditors have consented to the execution of this Amendment by the
Collateral Agent and each Administrative Agent.
Now, Therefore, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as follows:
Section 1. Amendments.
Subject to the satisfaction of the conditions precedent set forth in Section 2 below, the
Intercreditor Agreement shall be and hereby is amended as follows:
1.1. The Recitals set forth in the Intercreditor Agreement are hereby amended in their
entirety and as so amended shall be restated to read as follows:
W i t n e s s e t h:
Whereas, Alliance Data Systems Corporation (the “US Borrower”), the guarantors
party thereto, the lenders from time to time party thereto (the “3-Year Banks”) and Xxxxxx
X.X., successor by merger with Xxxxxx Trust and Savings Bank, as
Administrative Agent, have entered into a Credit Agreement (3-Year), dated as of April
10, 2003 (as amended, modified or supplemented from time to time, the “3-Year Credit
Agreement”), providing for the making of loans and the issuance of, and participation in,
Letters of Credit as contemplated therein;
Whereas, the US Borrower, the guarantors party thereto, the lenders from time
to time party thereto (the “364-Day Banks”) and Xxxxxx X.X., successor by merger with Xxxxxx
Trust and Savings Bank, as Administrative Agent have entered into a Credit Agreement
(364-Day), dated as of April 10, 2003 (as amended, modified or supplemented from time to
time, the “364-Day Credit Agreement”) providing for the making of loans as contemplated
therein;
Whereas, the U.S. Borrower, the guarantors party thereto, the lenders from
time to time party thereto (the “Bridge Banks”) and Xxxxxx X.X., as Administrative Agent
have entered into a Credit Agreement, dated as of January 3, 2006 (as amended, modified or
supplemented from time to time, the “Bridge Credit Agreement”) providing for the making of
loans as contemplated therein;
Whereas, Loyalty Management Group Canada Inc. (the “Canadian Borrower” and,
together with the US Borrower, the “Borrowers”), the guarantors party thereto, the lenders
from time to time party thereto (the “Canadian Banks” and, together with the 364-Day Banks,
the 3-Year Banks, and the Bridge Banks, the “Banks”) and Xxxxxx X.X., successor by merger
with Xxxxxx Trust and Savings Bank, as Administrative Agent have entered into a Canadian
Credit Agreement, dated as of April 10, 2003 (as amended, modified or supplemented from time
to time, the “Canadian Credit Agreement” and together with the 364-Day Credit Agreement,
3-Year Credit Agreement, and the Bridge Credit Agreement, the “Credit Agreements” and
individually, a “Credit Agreement”) providing for the making of loans as contemplated
therein;
Whereas, the Borrowers and one or more of their Subsidiaries may at any time
and from time to time enter into one or more agreements constituting Derivatives Obligations
(as defined in the Credit Agreements) with one or more Persons that, at the time of
incurrence thereof, were Banks or affiliates thereof (each such Bank or affiliate, even if
the respective Bank subsequently ceases to be a Bank under the applicable Credit Agreement
for any reason, together with such Bank’s or affiliate’s successors and assigns, if any,
collectively, the “Other Creditors,” and together with the Pledgee and the Banks, the
“Senior Creditors”);
Whereas, the Senior Creditors desire to provide for their respective rights in
respect of collections from the Credit Parties under or in connection with the Collateral
Documents and to make certain other commitments and undertakings in connection with the
Credit Agreements;
Now, Therefore, for the above reasons, in consideration of the mutual
covenants herein, and for other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto agree as follows:
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1.2. The notice information for the Collateral Agent appearing on the signature page is hereby
deleting in its entirety and inserted in its place the following:
Xxxxxx X.X.
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
Section 2. Conditions Precedent.
The effectiveness of this Amendment is subject to the satisfaction of all of the following
conditions precedent:
2.1. Each Administrative Agent and the Collateral Agent shall have executed and
delivered this Amendment and each Credit Party (as defined in the Intercreditor Agreement)
shall have executed the acknowledgment attached hereto.
2.2. Legal matters incident to the execution and delivery of this Amendment shall be
satisfactory to the Agent and its counsel; and all conditions to the effectiveness of the
Bridge Credit Agreement shall be satisfied.
Section 3. Miscellaneous.
3.1. Except as specifically amended herein, the Intercreditor Agreement shall continue in full
force and effect in accordance with its original terms. Reference to this specific Amendment need
not be made in the Intercreditor Agreement or any other instrument or document executed in
connection therewith, or in any certificate, letter or communication issued or made pursuant to or
with respect to the Intercreditor Agreement, any reference in any of such items to the
Intercreditor Agreement being sufficient to refer to the Intercreditor Agreement as amended hereby.
3.2. The U.S. Borrower agrees to pay on demand all reasonable out-of-pocket costs and expenses
of or incurred by the Collateral Agent in connection with the negotiation, preparation, execution
and delivery of this Amendment, including the fees and expenses of counsel for the Collateral
Agent.
3.3. This Amendment may be executed in any number of counterparts, and by the different
parties on different counterpart signature pages, all of which taken together shall constitute one
and the same agreement. Any of the parties hereto may execute this Amendment by signing any such
counterpart and each of such counterparts shall for all purposes be deemed to be an original. This
Amendment shall be governed by the internal laws of the State of New York.
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[Signature Page to Follow]
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In Witness Whereof, the parties have executed this Amendment as of the day and year
first written above.
Xxxxxx X.X., successor by merger to Xxxxxx | ||||
Trust and Savings Bank, as Collateral Agent | ||||
By: | /s/ Xxxx X. Xxxxxx | |||
Title: | Managing Director |
Xxxxxx X.X., successor by merger to Xxxxxx | ||||
Trust and Savings Bank, as Administrative | ||||
Agent for and on behalf of the 3-Year Banks | ||||
under the 3-Year Credit Agreement | ||||
By: | /s/ Xxxx X. Xxxxxx | |||
Title: | Managing Director |
Xxxxxx X.X., successor by merger to Xxxxxx | ||||
Trust and Savings Bank, as Administrative | ||||
Agent for and on behalf of the 364-Day | ||||
Banks under the 364-Day Credit Agreement | ||||
By: | /s/ Xxxx X. Xxxxxx | |||
Title: | Managing Director |
Xxxxxx X.X., successor by merger to Xxxxxx | ||||
Trust and Savings Bank, as Administrative | ||||
Agent for and on behalf of the Canadian | ||||
Banks under the Canadian Credit Agreement | ||||
By: | /s/ Xxxx X. Xxxxxx | |||
Title: | Managing Director |
S-1
Xxxxxx X.X., as Administrative Agent for and on behalf of the Bridge Banks under the Bridge Credit Agreement |
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By: | /s/ Xxxx X. Xxxxxx | |||
Title: | Managing Director | |||
S-2
Acknowledgement of and Consent and Agreement
to First Amendment to Intercreditor and Collateral Agency Agreement
to First Amendment to Intercreditor and Collateral Agency Agreement
The undersigned, the Credit Parties described in the First Amendment to Intercreditor and
Collateral Agency Agreement set forth above, acknowledge and consent to the terms and conditions
thereof. The undersigned Credit Parties do hereby further acknowledge and agree no Credit Party is
a third-party beneficiary of, or has any rights under, the Intercreditor and Collateral Agency
Agreement, except Section 7(d) thereof.
This Acknowledgement of and Agreement to First Amendment to Intercreditor and Collateral
Agency Agreement and any amendment hereof may be executed in several counterparts and by each party
on a separate counterpart, each of which, when so executed and delivered, shall be an original, but
all of which together shall constitute but one of the same instrument.
In Witness Whereof, the parties below have caused this Acknowledgement of and Consent
and Agreement to Intercreditor and Collateral Agency Agreement to be executed by their respective
duly authorized officers as of January 3, 2006.
Alliance Data Systems Corporation |
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By: | /s/ Xxxxxx X. Xxxxxx | |||
Title: SVP and Treasurer |
Loyalty Management Group Canada Inc. |
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By: | /s/ Xxxxxx X. Xxxxxx | |||
Title: SVP and Treasurer |
ADS Alliance Date Systems, Inc. |
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By: | /s/ Xxxxxx X. Xxxxxx | |||
Title: SVP and Treasurer | ||||