First Amendment To Pledge Agreement
Exhibit 99.2
First Amendment To Pledge Agreement
This First Amendment to Pledge Agreement (herein, the “Amendment”) is entered into as of
January 3, 2006, by and among Alliance Data Systems Corporation, a Delaware corporation (the
“Borrower”), and the other parties executing this Amendment under the heading “Pledgors” (the
Borrower and such other parties being hereinafter referred to collectively as the “Pledgors” and
individually as a “Pledgor”), and 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”).
Preliminary Statements
A. The Pledgors and the Collateral Agent entered into that certain Pledge Agreement, dated as
of April 10, 2003 (the “Pledge Agreement”). All capitalized terms used herein without definition
shall have the same meanings herein as such terms have in the Pledge Agreement.
B. The Borrower has requested that certain 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 lenders party thereto require
that certain amendments be made to the Pledge Agreement to confirm that the obligations of the
Borrower under the New Credit Agreement are “Obligations” under the Pledge Agreement.
D. The existing Secured Creditors have consented to the execution of this Amendment by the
Pledgors and have authorized the Collateral Agent to execute this Amendment.
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
Pledge Agreement shall be and hereby is amended as follows:
1.1. The Recitals set forth in the Pledge 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
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 “Secured Creditors”);
Whereas, the Banks have authorized the “Administrative Agent” under each
Credit Agreement to enter into an Intercreditor and Collateral Agency Agreement (as amended,
modified or supplemented from time to time, the “Intercreditor and Collateral Agency
Agreement”);
Whereas, it is a condition to the making or maintenance of Loans and the
issuance of Letters of Credit under the Credit Agreements that each Pledgor shall have
executed and delivered to the Pledgee this Agreement;
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Whereas, each Pledgor will obtain benefits from the incurrence and maintenance
of Loans and the issuance of Letters of Credit under the Credit Agreements and the entering
into of agreements constituting Derivatives Obligations with the Other Creditors and,
accordingly, each Pledgor desires to enter into this Agreement in order to satisfy the
condition described in the preceding paragraph;
Now, Therefore, in consideration of the foregoing and other benefits accruing
to each Pledgor, the receipt and sufficiency of which are hereby acknowledged, and intending
to be legally bound hereby, each Pledgor hereby makes the following representations and
warranties to the Pledgee for the benefit of the Secured Creditors and hereby covenants and
agrees with the Pledgee for the benefit of the Secured Creditors as follows:
1.2. Section 20 of the Pledge Agreement is hereby amended by deleting the notice information
for the Pledgee appearing in clause (b) thereof and inserting 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 |
1.3. Annex A and Annex B to the Pledge Agreement are each hereby amended in their entirety and
as so amended shall read as set forth as Annex A and Annex B, respectively, to this Amendment.
Section 2. Conditions Precedent.
The effectiveness of this Amendment is subject to the satisfaction of all of the following
conditions precedent:
2.1. The Pledgors and the Collateral Agent shall have executed and delivered this
Amendment.
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. Representations.
In order to induce the Collateral Agent to execute and deliver this Amendment, each Pledgor
hereby represents to the Secured Creditors that as of the date hereof and after giving effect to
this Amendment the representations and warranties set forth in Section 16 of the Pledge
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Agreement are and shall be and remain true and correct in all material respects and such
Pledgor is in compliance with the terms and conditions of the Pledge Agreement and no Event of
Default has occurred and is continuing under the Pledge Agreement or shall result after giving
effect to this Amendment.
Section 4 Continuation
Each Pledgor hereby agrees that, notwithstanding the execution and delivery of this Amendment,
all rights and remedies of the Collateral Agent under the Pledge Agreement, all obligations of each
Pledgor under the Pledge Agreement, and the liens and security interests granted and provided for
in the Pledge Agreement, are and shall remain in full force and effect for the benefit and security
of all of the Obligations described therein. Nothing herein contained shall in any manner affect
or impair the priority of the liens and security interests created and provided for by the Pledge
Agreement as to the Obligations which would be secured thereby prior to giving effect to this
Amendment.
Section 5. Miscellaneous.
5.1. Except as specifically amended herein, the Pledge 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 Pledge 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
Pledge Agreement, any reference in any of such items to the Pledge Agreement being sufficient to
refer to the Pledge Agreement as amended hereby.
5.2. The 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.
5.3. 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.
[Signature Page to Follow]
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This First Amendment to Pledge Agreement is entered into as of the date and year first above
written.
Pledgors: Alliance Data Systems Corporation |
||||
By | /s/ Xxxxxx X. Xxxxxx | |||
Name Xxxxxx X. Xxxxxx | ||||
Title SVP and Treasurer | ||||
ADS Alliance Data Systems, Inc. |
||||
By | /s/ Xxxxxx X. Xxxxxx | |||
Name Xxxxxx X. Xxxxxx | ||||
Title SVP and Treasurer | ||||
S-1
Accepted and agreed to in Chicago, Illinois, as of the date first above written.
Xxxxxx X.X., successor by merger with Xxxxxx | ||||
Trust and Savings Bank, as Collateral Agent | ||||
By | /s/ Xxxx X. Xxxxxx | |||
Name Xxxx X. Xxxxxx | ||||
Title Managing Director | ||||
S-2
ANNEX A
TO
PLEDGE AGREEMENT
LIST OF STOCK
I. Alliance Data Systems Corporation
Percentage of | ||||||||||||||
Outstanding | ||||||||||||||
Name of Issuing | Certificate | Type of | Number of | Shares of | ||||||||||
Corporation | Number | Shares | Shares | Capital Stock | ||||||||||
1. |
ADS Alliance Data Systems, Inc. | 2 | common | 10 | 9 | % | ||||||||
3 | common | 100 | 91 | % | ||||||||||
2. |
Loyalty Management Group | C2 | common | 650 | 65 | % | ||||||||
Canada, Inc. | C3 | common | 350 | 35 | %* | |||||||||
3. |
ADS Reinsurance Ltd. | 3 | common | 78,000 | 65 | % | ||||||||
2 | common | 42,000 | 35 | %* | ||||||||||
4. |
ADS Commercial Services, Inc. | C2 | common | 1,000 | 100 | % | ||||||||
5. |
ADS MB Corporation | 1 | common | 1,000 | 100 | % | ||||||||
6. |
Alliance Travel Services, Inc. | 1 | common | 100 | 100 | % | ||||||||
7. |
World Financial Network | |||||||||||||
National Bank | 3 | common | 175,000 | 100 | %* | |||||||||
8. |
World Financial Capital Bank | [ ] | common | 1,000 | 100 | %* |
* | Unpledged Interests |
ADS Alliance Data Systems, Inc.
Percentage of | ||||||||||||||
Outstanding | ||||||||||||||
Name of Issuing | Certificate | Type of | Number of | Shares of | ||||||||||
Corporation | Number | Shares | Shares | Capital Stock | ||||||||||
9. |
Alliance Recovery Management, Inc. | 1 | common | 1,000 | 100 | % | ||||||||
10. |
Atrana Solutions, Inc. | 9 | common | 1,366,001 | 100 | % | ||||||||
(Class A Voting) | ||||||||||||||
10 | common | 174,932 | ||||||||||||
(Class B Non-Voting) | ||||||||||||||
11. |
Conservation Billing Services, Inc. | 11 | common | 970 | 100 | % | ||||||||
12. |
LoyaltyOne, Inc. | 15 | common | 121 | 100 | % | ||||||||
13. |
Orcom Solutions, Inc. | 2 | common | 1 | 100 | % | ||||||||
14. |
Enlogix, Inc. | C-3 | common | 1,312 | 35 | %* | ||||||||
C-4 | common | 2,437 | 65 | % |
Partnership Interests
Percentage of | ||||||||||||
Name of Issuing |
Type of | Jurisdiction of | Outstanding Shares of | |||||||||
Corporation |
Organization | Organization | Capital Stock | |||||||||
None |
LLC INTERESTS
I. Alliance Data Systems Corporation
Percent of Equity | ||||
Jurisdiction of | Interest Owned by | |||
Name of LLC | Organization | Pledgor | ||
None |
II. ADS Alliance Data Systems, Inc.
Percent of Equity | ||||
Jurisdiction of | Interest Owned by | |||
Name of LLC | Organization | Pledgor | ||
Epsilon Marketing Services, LLC | Delaware | 100% |
ANNEX B
TO
PLEDGE AGREEMENT
LIST OF NOTES
I. Alliance Data Systems Corporation
Principal Amount | ||||||||||||
Obligor | (If Any) | Maturity Date | ||||||||||
ADS Alliance Data Systems, Inc. |
$ | 500,000,000 | 6/30/2010 | |||||||||
Alliance Travel Services, Inc. |
$ | 5,000,000 | 6/30/2010 | |||||||||
World
Financial Network National Bank |
$ | 100,000,000 | 11/30/2007 | |||||||||
World Financial Capital Bank |
$ | 150,000,000 | 11/30/2006 | |||||||||
Loyalty
Management Group Canada, Inc. |
$ | 20,000,000 | 6/30/2010 |
II. ADS Alliance Data Systems, Inc.
PRINCIPAL AMOUNT | ||||||||
OBLIGOR | (IF ANY) | MATURITY DATE | ||||||
Alliance Data LP |
$ | 1,000,000 CDN | 6/30/2010 | |||||
DMDA, Inc. |
$ | 67,000,000 | 6/30/2010 | |||||
DMDA General Partner LLC |
$ | 25,000,000 | 6/30/2010 | |||||
DMDA Holdings, Inc. |
$ | 27,000,000 | 6/30/2010 | |||||
DMDA Massachusetts Business Trust |
$ | 27,000,000 | 6/30/2010 | |||||
Epsilon Data Management, Inc. |
$ | 40,000,000 | 6/30/2010 | |||||
Epsilon Marketing Services, Inc. |
$ | 100,000,000 | 6/30/2010 | |||||
Epsilon Texas Ltd LLP |
$ | 25,000,000 | 6/30/2010 | |||||
Interact Connect LLC |
$ | 2,000,000 | 6/30/2010 |