AMENDMENT NO. 2 TO CREDIT AGREEMENT
AMENDMENT
NO. 2 TO CREDIT AGREEMENT
Amendment
No. 2, dated as of November 24, 2010 (this “Amendment”), to the
First Lien Credit Agreement, dated as of June 15, 2007 (as amended, amended and
restated, supplemented or otherwise modified from time to time, the “Credit Agreement”),
among IntraLinks Holdings, Inc., a Delaware corporation (“Holdings”),
IntraLinks, Inc., a Delaware corporation (the “Borrower”), each
lender from time to time party thereto (collectively, the “Lenders” and
individually, a “Lender”), Deutsche
Bank Trust Company Americas, as administrative agent (in such capacity, the
“Administrative
Agent”) and the other agents and arrangers named
therein. Capitalized terms used herein and not otherwise defined
herein shall have the meanings ascribed to them in the Credit
Agreement.
W I T N E
S S E T H:
WHEREAS, subsection 10.6(a) of
the Credit Agreement permits the Borrower and the Requisite Lenders to enter
into amendments to and waive any provision of the Credit Agreement;
and
WHEREAS,
the Requisite Lenders and the Borrower desire to amend the Credit Agreement on
the terms set forth herein.
NOW,
THEREFORE, in consideration of the promises and covenants contained herein and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto, intending to be legally bound
hereby, agree as follows:
Section 1. Amendments
(a) Subsection
1.1 of the Credit Agreement is hereby amended by inserting the following
definitions in alphabetical order:
““Amendment No. 2” means
Amendment No. 2 to this Agreement, dated as of November 24, 2010.”
““Follow On Equity Offering”
means a public offering of common stock of Holdings that is consummated on or
prior to June 30, 2011.
““Follow On Equity Offering Second Lien
Prepayment” has the meaning assigned to such term in Section
6.16.”
““Second Amendment Effective
Date” shall have the meaning assigned to such term in Amendment No.
2.
(b) The
definition of Specified Equity Amount in subsection 1.1 of the Credit Agreement
shall be amended to add the following immediately after the words “Qualifying
IPO” appear therein:
“or, to
the extent used to make the Follow On Second Lien Prepayment, the Follow On
Equity Offering”.
(c) A
new Section 6.16 shall be added to the Credit Agreement which shall read as
follows:
6.16 Use of
Proceeds of Follow On Equity Offering. The gross proceeds of
the Follow On Equity Offering shall be used, upon the consummation of the Follow
On Equity Offering, (x) to voluntarily prepay amounts outstanding under the
Second Lien Credit Agreement at a prepayment price not to exceed the price set
forth in subsection 2.4B(ii) thereof as such provision is in effect on the
Second Amendment Effective Date (the “Follow On Second Lien
Prepayment”) and (y) to the extent that the gross proceeds of the Follow
On Equity Offering remain after the prepayment referred to in immediately
preceding clause (y), first, to pay for the fees and expenses relating thereto
and second, for general corporate purposes, including permitted
Investments.
(d) A
third sentence shall be added to subsection 7.10(B) of the Credit Agreement,
which shall read as follows:
“Notwithstanding
the foregoing, the foregoing shall not prevent the making of the Follow On
Second Lien Prepayment.”
Section 2. Conditions Precedent to the
Effectiveness of this Amendment
This
Amendment shall become effective as of the date when, and only when, each of the
following conditions precedent shall have been (or are or will be substantially
concurrently therewith) satisfied, as evidenced by written confirmation of
satisfaction from the Administrative Agent (the “Second Amendment Effective
Date”):
(a) the
Administrative Agent shall have received this Amendment, duly executed by the
Borrower, Holdings and a number of Lenders sufficient to constitute the
Requisite Lenders;
(b) the
Administrative Agent shall have received an Officer’s Certificate of the
Borrower certifying that the representations and warranties in Section 3 shall
be true and correct as of the Second Amendment Effective Date and (y) no default
shall have occurred and be continuing under the Second Lien Credit Agreement;
and
(c) the
Borrower shall have paid all amounts under Section 4;
provided
that the Second Amendment Effective Date shall not occur unless the Borrower
shall have delivered its signature page hereto no later than the first Business
Day following receipt by the Administrative Agent of the signature pages hereto
by the Requisite Lenders.
-2-
Section 3. Representations and
Warranties
On and as
of the Second Amendment Effective Date, after giving effect to this Second
Amendment, the Borrower hereby represents and warrants to the Administrative
Agent and each Lender as follows:
(a) The
execution, delivery and performance of this Amendment has been duly authorized
by all necessary corporate, partnership or limited liability action on the part
of the Borrower. This Amendment is the legally valid and binding
obligation of the Borrower, enforceable against such Person in accordance with
its terms, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or limiting creditors’ rights generally
or by equitable principles relating to enforceability;
(b) the
representations and warranties contained in the Credit Agreement and in the
other Loan Documents shall be true and correct in all material respects (except
that any representation and warranty that is qualified as to “materiality” or
“Material Adverse Effect” shall be true and correct in all respects) on and as
of the Second Amendment Effective Date to the same extent as though made on and
as of that date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case such representations and
warranties shall have been true and correct in all material respects (except
that any representation and warranty that is qualified as to “materiality” or
“Material Adverse Effect” shall be true and correct in all respects) on and as
of such earlier date;
(c) no
Default or Event of Default has occurred and is continuing under the Credit
Agreement or the Second Lien Credit Agreement; and
Section 4. Fees and Expenses
(a) On
the Second Amendment Effective Date, each Lender which shall have duly executed
and delivered to the Borrower and the Administrative Agent this Amendment on or
prior to 5:00 p.m., New York City time, on November 23, 2010 shall be paid a fee
by Borrower equal to 0.10% (the “Fee Percentage”) multiplied by
the sum of the aggregate principal amount of outstanding Term Loans and the
Revolving Loan Commitment (whether drawn or undrawn) of such Lender as of the
Second Amendment Effective Date as set forth on the Register maintained by the
Administrative Agent.
(b) The
Borrower agrees to pay all reasonable costs and expenses incurred by the
Administrative Agent in connection with this Amendment (including the
reasonable, documented fees of Xxxxxx Xxxxxx & Xxxxxxx llp), whether or not
the Second Amendment Effective Date occurs. On the Second Amendment
Effective Date, the Borrower further agrees to pay those fees agreed to
separately agreed to between the Administrative Agent and any Affiliate thereof
and the Borrower with respect to this Amendment.
-3-
Section 5. Reference to and Effect on the
Loan Documents
(a) Except
as specifically amended above, all of the terms and provisions of the Credit
Agreement and all other Loan Documents are and shall remain in full force and
effect and are hereby ratified and confirmed.
(b) The
execution, delivery and effectiveness of this Amendment shall not operate as a
waiver of any right, power or remedy of the Lenders, Holdings, the Borrower or
the Administrative Agent under any of the Loan Documents, nor constitute a
waiver of any other provision of any of the Loan Documents or for any
purpose.
(c) Each
of the Loan Documents, including the Credit Agreement, and any and all other
agreements, documents or instruments now or hereafter executed and/or delivered
pursuant to the terms hereof or pursuant to the terms of the Credit Agreement as
amended hereby, are hereby amended so that any reference in such Loan Documents
to the Credit Agreement, whether direct or indirect, shall mean a reference to
the Credit Agreement as amended hereby.
(d) This
Amendment is a Loan Document. For the avoidance of doubt, the
indemnification provisions set forth in subsection 10.3 of the Credit Agreement
shall apply to this Amendment.
Section 6. Execution in
Counterparts
This
Amendment may be executed in any number of counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument. Delivery
of an executed counterpart by telecopy or other electronic transmission shall be
effective as delivery of a manually executed counterpart of this
Amendment.
Section 7. Governing Law
THIS
AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER
SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE
GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES THAT WOULD REQUIRE APPLICATION OF ANOTHER LAW.
Section 8. Headings
Section
headings herein are included herein for convenience of reference only and shall
not constitute a part hereof for any other purpose or be given any substantive
effect.
-4-
Section 9. Notices
All
communications and notices hereunder shall be given as provided in the Credit
Agreement.
Section 10. Severability
The
illegality or unenforceability of any provision of this Amendment or any
instrument or agreement required hereunder shall not in any way affect or impair
the legality or enforceability of the remaining provisions of this Amendment or
any instrument or agreement required hereunder.
Section 11. Successors
The terms
of this Amendment shall be binding upon, and shall inure to the benefit of, the
parties hereto and their respective successors and assigns.
Section 12. Waiver of Jury Trial
EACH
OF THE PARTIES TO THIS AMENDMENT HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO
A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
AMENDMENT OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS
AMENDMENT. THE SCOPE OF THIS WAIVER IS INTENDED TO BE
ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT
RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING CONTRACT CLAIMS,
TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY
CLAIMS. EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL
INDUCEMENT TO ENTER INTO THIS AMENDMENT, THAT EACH HAS ALREADY RELIED ON THIS
WAIVER IN ENTERING INTO THIS AMENDMENT, AND THAT EACH WILL CONTINUE TO RELY ON
THIS WAIVER IN THEIR RELATED FUTURE DEALINGS. EACH PARTY HERETO
FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL
COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS
FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING
(OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO SECTION 12 AND
EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS
AMENDMENT. IN THE EVENT OF LITIGATION, THIS AMENDMENT MAY BE FILED AS
A WRITTEN CONSENT TO A TRIAL BY THE COURT.
[SIGNATURE
PAGES FOLLOW]
-5-
In Witness
Whereof, the
parties hereto have caused this Amendment to be executed by their respective
officers thereunto duly authorized, as of the date first written
above.
|
as
Holdings
|
||
|
By:
|
/s/ Xxxxxxx
Xxxxxxx
|
|
|
|
Name:
Xxxxxxx Xxxxxxx
|
|
|
Title:
Chief Financial Officer
|
||
|
INTRALINKS,
INC., as Borrower
|
||
|
By:
|
/s/ Xxxxxxx
Xxxxxxx
|
|
|
Name:
Xxxxxxx Xxxxxxx
|
||
|
Title:
Chief Financial Officer
|
||
|
DEUTSCHE
BANK TRUST COMPANY AMERICAS,
as Administrative Agent |
||
|
By:
|
/s/ Xxxx X’Xxxxx
|
|
|
Name:
Xxxx X’Xxxxx
|
||
|
Title:
Director
|
||
|
By:
|
/s/ Xxxxxx X.
Xxxxxxxxxx
|
|
|
Name:
Xxxxxx X. Xxxxxxxxxx
|
||
|
Title:
Director
|
||
|
FEINGOLD
O’KEEFFE CAPITAL, LLC
|
||
|
As
Collateral Manager for
|
||
|
Xxxxx
Street CLO, Ltd., as a Lender
|
||
|
By:
|
/s/ Xxxxx X’Xxxx
|
|
|
Name:
Xxxxx X’Xxxx
|
||
|
Title:
PM
|
||
|
[If
a second signature is required]
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
| FEINGOLD O’KEEFFE CAPITAL, LLC | ||
| As Collateral Manager for | ||
| Lime Street CLO, Ltd., as a Lender | ||
|
By:
|
/s/ Xxxxx X’Xxxx
|
|
|
Name:
Xxxxx X’Xxxx
|
||
|
Title:
PM
|
||
|
[If
a second signature is required]
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
FEINGOLD
O’KEEFFE CAPITAL, LLC
|
||
|
As
Collateral Manager for
|
||
|
Xxxxxxx
Place CLO, Ltd., as a Lender
|
||
|
By:
|
/s/ Xxxxx X’Xxxx
|
|
|
Name:
Xxxxx X’Xxxx
|
||
|
Title:
PM
|
||
|
[If
a second signature is required]
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
ING
CAPITAL LLC,
|
||
|
as
a Lender
|
||
|
By:
|
/s/ Xxxxxxxx X. Xxxxx
|
|
|
Name:
Xxxxxxxx X. Xxxxx
|
||
|
Title:
Director
|
||
|
ORIX
Finance Corp.,
|
||
|
as
a Lender
|
||
|
By:
|
/s/ Xxxxxxxxxxx X. Xxxxx
|
|
|
Name:
Xxxxxxxxxxx X. Xxxxx
|
||
|
Title:
Sr. Managing Director
|
||
|
[If
a second signature is required]
|
||
|
By:
|
N/A
|
|
|
Name:
|
||
|
Title:
|
||
|
Knightsbridge CLO 2007-1
LIMITED, as Lender
|
||
|
By:
|
ACKB
LLC,
|
|
|
as
investment manager
|
||
|
By:
|
Xxx
Xxxx Asset Management, L.P.,
|
|
|
its
Managing Member
|
||
|
By:
|
/s/ Xxxx Cascade
|
|
|
Name:
Xxxx Cascade
|
||
|
Title:
Duly Authorized Signatory
|
||
|
Knightsbridge CLO 2008-1
LIMITED, as Lender
|
||
|
By:
|
ACKB
LLC,
|
|
|
as
investment manager
|
||
|
By:
|
Xxx
Xxxx Asset Management, L.P.,
|
|
|
its
Managing Member
|
||
|
By:
|
/s/ Xxxx Cascade
|
|
|
Name:
Xxxx Cascade
|
||
|
Title:
Duly Authorized Signatory
|
||
|
BABSON
CLO LTD. 2003-I
|
||
|
BABSON
CLO LTD. 2004-I
|
||
|
BABSON
CLO LTD. 2004-II
|
||
|
BABSON
CLO LTD. 2005-I
|
||
|
BABSON
CLO LTD. 2005-II
|
||
|
BABSON
CLO LTD. 2005-III
|
||
|
BABSON
CLO LTD. 2006-I
|
||
|
BABSON
CLO LTD. 2006-II
|
||
|
BABSON
CLO LTD. 2007-I
|
||
|
BABSON
CREDIT STRATEGIES CLO, LTD.
|
||
|
BABSON
MID-MARKET CLO LTD. 2007-II
|
||
|
BABSON
LOAN OPPORTUNITY CLO, LTD.
|
||
|
LOAN
STRATEGIES FUNDING LLC
|
||
|
SAPPHIRE VALLEY CDO I,
LTD., as Lenders
|
||
|
By:
|
Babson
Capital Management LLC as Collateral Manager
|
|
|
By:
|
/s/ Xxxxxxx Xxxx
|
|
|
Name:
Xxxxxxx Xxxx
|
||
|
Title:
Director
|
||
|
BABSON
CAPITAL LOAN PARTNERS I, L.P.
|
||
|
OLYMPIC PARK LTD., as
Lenders
|
||
|
By:
|
Babson
Capital Management LLC as Investment Manager
|
|
|
By:
|
/s/ Xxxxxxx Xxxx
|
|
|
Name:
Xxxxxxx Xxxx
|
||
|
Title:
Director
|
||
| CREDIT SUISSE AG, | ||
| Cayman Islands Branch | ||
|
By:
|
/s/ Xxxxxx Xxxx
|
|
|
Name:
Xxxxxx Xxxx
|
||
|
Title:
Director
|
||
|
By:
|
/s/ Xxxxx Xxxxxx
|
|
|
Name:
Xxxxx Xxxxxx
|
||
|
Title:
Associate
|
||
|
DEUTSCHE BANK TRUST COMPANY
AMERICAS, as a Lender
|
||
|
By:
|
/s/ Xxxx X’Xxxxx
|
|
|
Name:
Xxxx X’Xxxxx
|
||
|
Title:
Director
|
||
|
[If
a second signature is required]
|
||
|
By:
|
/s/ Xxxxxxx Xxxxxxxx
|
|
|
Name:
Xxxxxxx Xxxxxxxx
|
||
|
Title:
Vice President
|
||
|
DEXTERA,
|
||
|
as
a Lender
|
||
|
By:
|
/s/ Xxxx Xxxxxx
|
|
|
Name:
Xxxx Xxxxxx
|
||
|
Title:
Authorized Signatory
|
||
|
[If
a second signature is required]
|
||
|
By:
|
N/A
|
|
|
Name:
|
||
|
Title:
|
||
|
LMP
Corporate Loan Fund, Inc.
|
||
|
By:
|
Citi
Alternative Investments LLC, as a Lender
|
|
|
By:
|
/s/ Xxxxx Xxx
|
|
|
Name:
Xxxxx Xxx
|
||
|
Title:
VP
|
||
|
CCA
EAGLE LOAN MASTER FUND LTD.
|
||
|
By:
|
Citigroup
Alternative Investments LLC, as Investment manager for and on behalf of
CCA EAGLE LOAN MASTER FUND LTD., as a Lender
|
|
|
By:
|
/s/ Xxxxx Xxx
|
|
|
Name:
Xxxxx Xxx
|
||
|
Title:
VP
|
||
|
REGATTA
FUNDING LTD.
|
||
|
By:
|
Citi
Alternative Investments LLC,
attorney-in-fact, as a Lender |
|
|
By:
|
/s/ Xxxxx Xxx
|
|
|
Name:
Xxxxx Xxx
|
||
|
Title:
VP
|
||
| Seal Rock Offshore Funding, L.L.C. | ||
| as a Lender | ||
|
By:
|
/s/ Xxxxxxx Xxxx
|
|
|
Name:
Xxxxxxx Xxxx
|
||
|
Title:
Managing Member
|
||
