SECOND AMENDMENT TO CREDIT AGREEMENT
Exhibit 10.7.3
EXECUTION VERSION
SECOND AMENDMENT TO CREDIT AGREEMENT
This SECOND AMENDMENT TO CREDIT AGREEMENT (this “Amendment”), is made and entered into as of February 27, 2017, by and among INTERSECTIONS INC., a Delaware corporation (“Intersections” or the “Borrower Representative”), INTERSECTIONS ENTERPRISES INC., a Delaware corporation (“Enterprises”), INTERSECTIONS HOLDINGS INC., a Delaware corporation (“Holdings”), IISI INSURANCE SERVICES INC., an Illinois corporation formerly known as IISI Inc. and Intersections Insurance Services Inc. (“IISI”), I4C INNOVATIONS LLC, a Delaware limited liability company resulting from the conversion of i4c Innovations Inc. a Delaware corporation (“i4c” and together with Intersections, Enterprises, Holdings, and IISI, each individually, a “Borrower” and collectively, the “Borrowers”), CAPTIRA ANALYTICAL, LLC, a Delaware limited liability company (“Captira”), CRYSTAL FINANCIAL SPV LLC, a Delaware limited liability company (a “Term Lender”), CRYSTAL FINANCIAL LLC, a Delaware limited liability company, as administrative agent for the Secured Parties (in such capacity, together with its successors and assigns, the “Administrative Agent”).
W I T N E S S E T H:
WHEREAS, the Borrowers, Captira, the other Credit Parties party thereto from time to time, the Term Lenders and the Administrative Agent are parties to that certain Credit Agreement, dated as of March 21, 2016 (as amended by that certain First Amendment to Credit Agreement, dated as of December 14, 2016, and as may be further amended, amended and restated, refinanced, replaced, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”; capitalized terms used herein without definition shall have the meanings assigned to such terms in the Credit Agreement), pursuant to which the Term Lenders have made certain term loans and other financial accommodations available to the Borrowers upon the terms and conditions set forth therein;
WHEREAS, Section 7.01(j) of the Credit Agreement prohibits the Credit Parties from making Capital Expenditures in excess of $6,750,000 for the 2016 Fiscal Year (the “2016 CapEx Covenant”);
WHEREAS, the Borrower Representative has notified the Administrative Agent that the Credit Parties anticipate reporting Capital Expenditures for the 2016 Fiscal Year which would exceed by
$215,000 the amount allowed pursuant to the 0000 XxxXx Xxxxxxxx, and requested that the Administrative Agent adjust the 0000 XxxXx Xxxxxxxx so that such Capital Expenditures do not constitute an Event of Default under Section 8.01(b) of the Credit Agreement (the “Anticipated Default”);
WHEREAS, the Borrower Representative previously notified the Administrative Agent of its intention to conduct an orderly sale, wind-down, liquidation or dissolution of Captira, which sale, wind- down, liquidation or dissolution was permitted pursuant to the terms of the Credit Agreement;
WHEREAS, the Borrower Representative has notified the Administrative Agent that effective February 10, 2017, Holdings has sold all of the Capital Stock of Captira to Featherbrooke, Inc. , a Delaware corporation pursuant to a Sale and Purchase Agreement dated that date and that Holdings' post- closing obligations include using commercially reasonable efforts to obtain the release of the Administrative Agent's Liens on the Capital Stock and assets of Captira, and has requested that the Administrative Agent release such Liens, release Captira from all of its obligations under the Loan Documents, and release Captira as a Borrower and a Credit Party under the Loan Documents;
WHEREAS, the Administrative Agent and the Term Lenders are willing to amend certain provisions of the Credit Agreement and to confirm their consent to the release of Captira and the
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Administrative Agent's Liens on the Capital Stock and assets of Captira subject to the terms and conditions set forth herein; and
NOW, THEREFORE, in consideration of the premises, covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Borrowers, the Administrative Agent and the Term Lenders party hereto do hereby agree as follows:
1.Amendments to the Credit Agreement. Subject to and upon the satisfaction of the conditions set forth in Section 3 hereof, the Credit Agreement (including the schedules and exhibits thereto) is hereby amended as follows:
(a)Amendment to Section 7.01. Clause (i) of Section 7.01(j) of the Credit Agreement is hereby amended and restated in its entirety as follows, effective as of December 31, 2016:
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(i) |
“(i) $6,970,000 for the 2016 Fiscal Year,” |
(b)Amendment to Section 7.03. Clause (ix) of Section 7.03(a) of the Credit Agreement is hereby amended and restated in its entirety as follows:
(i)“(ix) Liens in the form of cash collateralization (including, without limitation those listed on Schedule 7.03) to secure reimbursement obligations with respect to automated clearing house treasury management arrangements, credit cards, credit card processing services, debit cards, stored value cards, and purchase cards obtained in the ordinary course of business and otherwise permitted hereunder; provided that the aggregate amount secured by such Liens shall not exceed $650,000;”
2.Release of Captira from Credit Agreement Obligations. Subject to the satisfaction of the conditions set forth in Section 3 hereof, each of the Administrative Agent and the Terms Lenders hereby consents to and agrees that effective as of February 10, 2017 (i) Captira shall cease to be a Borrower and a Credit Party under the Credit Agreement and the other Loan Documents, (ii) Captira shall cease to have any obligations under or be subject to any of the terms of the Credit Agreement and the other Loan Documents, and (iii) each of the Administrative Agent’s Liens on the Capital Stock and assets of Captira shall be terminated and of no further force and effect.
3.Conditions Precedent to Effectiveness of this Amendment. This Amendment shall become effective as of the date upon which each of the following conditions has been satisfied in full in the Administrative Agent’s sole discretion (such date, the “Second Amendment Effective Date”):
(a)the Administrative Agent shall have received one or more counterparts of this Amendment duly executed and delivered by the Borrowers, Captira and the Term Lenders;
(b)the Administrative Agent shall have received evidence in form and substance reasonably satisfactory to the Administrative Agent that the sale of Captira’s Capital Stock has been consummated in accordance with the terms of the Credit Agreement; and
(c)the Administrative Agent and Term Lenders shall have received such other assurances, certificates, documents, consents or opinions as the Administrative Agent or
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Term Lenders reasonably may require, each in form and substance reasonably satisfactory to the Administrative Agent and Term Lenders.
4.Representations And Warranties. Each Borrower and each other Credit Party hereby represent and warrant to the Administrative Agent and the Term Lenders as follows:
(a)The execution, delivery and performance by each Credit Party of this Amendment and the performance by such Credit Party of its obligations and agreements under this Amendment and the Credit Agreement, as amended hereby, have been duly authorized by all necessary corporate or other organizational action, and do not and will not (i) contravene the terms of any of such Credit Party’s certificate or articles of incorporation (or equivalent thereof), (ii) conflict with or result in any breach or contravention of, or the creation of any Lien under, or require any payment to be made under (A) any material Contractual Obligation (other than the creation of Liens under the Loan Documents) to which such Credit Party is a party or affecting such Credit Party or the properties of such Credit Party or any of its Subsidiaries or (B) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Credit Party or its property is subject; or (iii) violate any Law, except to the extent that any such violation, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
(b)This Amendment has been duly executed and delivered by such Credit Party. Each of this Amendment and the Credit Agreement, as amended hereby, constitutes a legal, valid and binding obligation of such Credit Party, enforceable against such Credit Party in accordance with their respective terms except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles, whether enforcement is sought by a proceeding in equity or at law.
(c)No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority is required in connection with the execution, delivery or performance by any Credit Party of this Amendment or the Credit Agreement as amended hereby;
(d)Each of the representations and warranties of the Borrowers and each other Credit Party contained in the Loan Documents is true and correct in all material respects (but without any duplication of any materiality qualifications) on and as of the Second Amendment Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (but without any duplication of any materiality qualifications) as of such earlier date.
(e)No Default or Event of Default exists except as may result from the facts disclosed herein with respect to the Anticipated Default, and after giving effect to this Amendment, no Default or Event of Default shall exist or arise therefrom.
5.Release. As a material inducement to the Administrative Agent and each Term Lender entering into this Amendment, which is to the direct advantage and benefit of the Borrowers, the other Credit Parties and Captira, each Credit Party and Captira, for itself and its respective Affiliates, does hereby release, waive, relinquish, acquit, satisfy and forever discharge the Administrative Agent and each Term Lender, and each other Secured Party and all of the respective past, present and future officers, directors, employees, agents, attorneys, representatives, participants, heirs, Affiliates, successors and assigns of each such Person (collectively the “Discharged Parties” and each a “Discharged Party”), from any and all manner of debts, warranties, representations, covenants, promises, contracts, controversies, agreements, liabilities, costs, losses, deficiencies, diminution in value, disbursements, obligations,
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expenses, damages, judgments, executions, actions, suits, claims, counterclaims, demands, defenses, setoffs, objections, adverse consequences, amounts paid in settlement, and causes of action of any nature whatsoever, whether at law or in equity or otherwise, either now accrued or hereafter maturing and whether known or unknown, fixed or contingent, direct or indirect, or derivative, asserted or unasserted, foreseen or unforeseen, suspected or unsuspected, which such Credit Party, Captira or such Affiliate now has or hereafter can, shall or may have by reason of any matter, cause, thing or event occurring on or prior to the Second Amendment Effective Date arising out of, in connection with or relating to (a) the Obligations, including, but not limited to, the administration or funding thereof, (b) any of the Loan Documents or the indebtedness evidenced and secured thereby, and (c) any other agreement or transaction between any Credit Party, Captira or Affiliate and any Discharged Party relating to or in connection with the Loan Documents or the transactions contemplated therein, except that this Section 5 shall not waive or release any of the Term Lenders’, the Administrative Agent’s, or any other Discharged Party’s contractual obligations under the Credit Agreement or any of the other Loan Documents.
6.Reaffirmation and Confirmation. The Credit Parties hereby (a) acknowledge and reaffirm their respective obligations as set forth in each Loan Document (as amended or otherwise modified by this Amendment), (b) agree to continue to comply with, and be subject to, all of the terms, provisions, conditions, covenants, agreements and obligations applicable to them set forth in each Loan Document (as amended or otherwise modified by this Amendment), which remain in full force and effect, and (c) confirm, ratify and reaffirm that (i) the guarantees and indemnities given by them or any other Credit Party pursuant to the Credit Agreement and/or any other Loan Documents continue in full force and effect, following and notwithstanding, the amendments thereto pursuant to this Amendment; and (ii) the security interest granted to the Administrative Agent, for the benefit of each Secured Party, pursuant to the Loan Documents in all of their right, title, and interest in all then existing and thereafter acquired or arising Collateral in order to secure prompt payment and performance of the Obligations, is continuing and is and shall remain unimpaired and continue to constitute a first priority security interest (subject to Permitted Liens) in favor of the Administrative Agent, for the benefit of each Secured Party, with the same force, effect and priority in effect immediately prior to entering into this Amendment.
7.Estoppel. To induce the Administrative Agent and the Term Lenders to enter into this Amendment, each Credit Party hereby acknowledges and agrees that, after giving effect to this Amendment, as of the date hereof, to the knowledge of each Credit Party, there exists no right of offset, defense, counterclaim or objection in favor of such Credit Party as against the Administrative Agent or any Term Lender with respect to the Obligations.
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Provisions of General Application. |
(a)Effect of this Amendment. Except as set forth in Section 1 and Section 2 of this Amendment, no other changes, modifications, waivers or forbearances to the Loan Documents are intended or implied and in all other respects the Loan Documents are hereby specifically ratified, restated and confirmed by all parties hereto as of the date hereof. To the extent of conflict between the terms of this Amendment and the other Loan Documents, the terms of this Amendment shall govern and control. The Credit Agreement and this Amendment shall be read and construed as one agreement.
(b)Binding Effect. This Amendment shall be binding upon and inure to the benefit of each of the parties hereto and their respective successors and assigns.
(c)Survival of Representations and Warranties. All representations and warranties made in this Amendment or any other document furnished in connection with this Amendment shall survive the execution and delivery of this Amendment and such other documents, and no investigation by
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the Administrative Agent or any Term Lender or any closing shall affect the representations and warranties or the right of the Administrative Agent and the Term Lenders to rely upon them.
(d)Severability. Any provision of this Amendment held by a court of competent jurisdiction to be invalid or unenforceable shall not impair or invalidate the remainder of this Amendment.
(e)Reviewed by Attorneys. Each Credit Party represents and warrants to the Administrative Agent and the Term Lenders that it (i) understands fully the terms of this Amendment and the consequences of the execution and delivery of this Amendment, (ii) has been afforded an opportunity to have this Amendment reviewed by, and to discuss this Amendment and each other document executed in connection herewith with, such attorneys and other persons as such Credit Party may wish, and (iii) has entered into this Amendment and executed and delivered all documents in connection herewith of its own free will and accord and without threat, duress or other coercion of any kind by any Person. The parties hereto acknowledge and agree that neither this Amendment nor the other documents executed pursuant hereto shall be construed more favorably in favor of one than the other based upon which party drafted the same, it being acknowledged that all parties hereto contributed substantially to the negotiation and preparation of this Amendment and the other documents executed pursuant hereto or in connection herewith.
(f)Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW (OTHER THAN THE NEW YORK GENERAL OBLIGATIONS LAW §5-1401 AND §5-1402)).
(g)Counterparts. This Amendment may be executed in any number of counterparts (and by different parties hereto in 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 counterpart of a signature page of this Amendment by facsimile transmission or electronic imaging means shall be as effective as delivery of a manually executed counterpart hereof.
(h)Entire Agreement. The Credit Agreement as modified by this Amendment embodies the entire agreement between the parties hereto relating to the subject matter hereof and supersedes all prior agreements, representations and understandings, if any, relating to the subject matter hereof.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the Borrowers have caused this Amendment to be duly executed by their respective officers thereunto duly authorized, as of the date first above written.
BORROWERS:
INTERSECTIONS INC., a Delaware corporation, as the Borrower Representative
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By: |
/s/ Xxxxxx Xxxxxx |
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Name: |
Xxxxxx Xxxxxx |
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Title: |
Chief Financial Officer |
INTERSECTIONS ENTERPRISES INC., a Delaware corporation, as a Borrower
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By: |
/s/ Xxxxxx Xxxxxx |
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Name: |
Xxxxxx Xxxxxx |
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Title: |
Chief Financial Officer |
INTERSECTIONS HOLDINGS INC., a Delaware
corporation, as a Borrower
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By: |
/s/ Xxxxxx Xxxxxx |
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Name: |
Xxxxxx Xxxxxx |
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Title: |
Chief Financial Officer |
IISI INSURANCE SERVICES INC., an Illinois
corporation, as a Borrower
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By: |
/s/ Xxxxxx Xxxxxx |
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Name: |
Xxxxxx Xxxxxx |
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Title: |
Chief Financial Officer |
I4C INNOVATIONS LLC, a Delaware limited liability company, as a Borrower
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By: |
/s/ Xxxxxx Xxxxxx |
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Name: |
Xxxxxx Xxxxxx |
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Title: |
Chief Financial Officer |
[Crystal/INTX – Signature Page to Second Amendment to Credit Agreement]
CAPTIRA ANALYTICAL, LLC, a Delaware limited liability company
By:Intersections Holdings, Inc., attorney-in-fact
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By: |
/s/ Xxxxxx Xxxxxx |
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Name: |
Xxxxxx Xxxxxx |
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Title: |
Chief Financial Officer |
[Crystal/INTX – Signature Page to Second Amendment to Credit Agreement]
CRYSTAL FINANCIAL LLC, as Administrative Agent
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By: |
/s/ Xxxxxxx X. Xxxxx |
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Name: |
Xxxxxxx X. Xxxxx |
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Title: |
Managing Director |
[Crystal/INTX - Signature Page to Second Amendment to Credit Agreement]
CRYSTAL FINANCIAL SPV LLC, as
a Term Lender
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By: |
/s/ Xxxxxxx X. Xxxxx |
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Name: |
Xxxxxxx X. Xxxxx |
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Title: |
Managing Director |
[Crystal/INTX - Signature Page to Second Amendment to Credit Agreement]
