ex10-1.htm


Exhibit 10.1

 

MASTER REAFFIRMATION AND

AMENDMENT NO. 4 TO LOAN DOCUMENTS

 

THIS MASTER REAFFIRMATION AND AMENDMENT NO. 4 TO LOAN DOCUMENTS (this “Amendment”) is made as of the 17th day of June, 2015, by and among HIGHER ONE, INC., a Delaware corporation (the “Borrower”), the Guarantors, the Lenders, and BANK OF AMERICA, N.A., as Administrative Agent, Swingline Lender and L/C Issuer (the “Agent”). Unless otherwise defined herein, capitalized terms used herein shall have the meanings ascribed to them in the Credit Agreement described below. 

 

W I T N E S S E T H:

 

WHEREAS, the Borrower, the Guarantors, the Agent and the Lenders are parties to that certain Credit Agreement, dated as of October 16, 2012 (the “Original Credit Agreement”), as amended by that certain Master Reaffirmation and Amendment No. 1 to Loan Documents, dated as of March 28, 2013 (the “First Amendment”), as further amended by that certain Master Reaffirmation and Amendment No. 2 to Loan Documents, dated as of November 4, 2013 (the “Second Amendment”), and as further amended by that certain Master Reaffirmation and Amendment No. 3 to Loan Documents, dated as of February 12, 2015 (the “Third Amendment” and, together with the Original Credit Agreement, the First Amendment, and the Second Amendment, collectively, as the same may be amended, modified, extended, restated, replaced or otherwise supplemented from time to time, the “Credit Agreement”);

 

WHEREAS, as collateral security for all Obligations to the Lenders, the Borrower and each Guarantor has granted to the Agent for the ratable benefit of the Secured Parties a lien on and security interest in all of their respective assets pursuant to, and as more particularly described in, the Collateral Documents;

 

WHEREAS, the Borrower and the Guarantors (collectively, the “Obligors”) have requested that the Agent and the Lenders amend certain provisions of the Credit Agreement; and

 

WHEREAS, the Required Lenders are willing to make such amendments to the Credit Agreement, in accordance with and subject to the terms and conditions set forth herein.

 

NOW, THEREFORE, in consideration of the premises and agreements set forth herein (which are incorporated herein as though fully set forth below, by this reference thereto) and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each of the undersigned agrees as follows:

 

1.     Acknowledgments, Affirmations and Representations and Warranties.

 

(a)     The Obligors acknowledge, affirm, represent and warrant that:

 

(i)     All of the statements contained herein are true and correct and that each understands that the Lenders and the Agent are relying on the truth and completeness of such statements to enter into this Amendment.

 


 

 




 


 

(ii)     The Obligors are legally and validly indebted to the Lenders by virtue of the Facility and the Loan Documents to which they are a party and there is no defense, offset or counterclaim with respect to any of the Obligations of the Obligors under the Loan Documents or independent claim or action against the Lenders or the Agent of any kind or nature with respect to the Obligations existing as of the date hereof or any of the Loan Documents to which they are a party, any action previously taken or not taken by the Lenders or the Agent with respect thereto, or any Lien on Collateral in connection therewith to secure the Obligations.

 

(iii)     Each of the Obligors has the power and authority to enter into, and has taken all necessary corporate or company action to authorize, this Amendment and the transactions contemplated hereby, and this Amendment has been duly executed and delivered by each Obligor and is a valid and binding obligation of each Obligor, enforceable against each Obligor in accordance with its terms.

 

(iv)     All representations, warranties and covenants contained in, and schedules and exhibits to, the Credit Agreement, the Guaranty and the other Loan Documents are true and correct in all material respects (without duplication of any materiality standard set forth in any such representation, warranty or covenant) on and as of the date hereof, except to the extent that such representations and warranties specifically relate to an earlier date, in which case they shall be true and correct in all material respects (without duplication of any materiality standard set forth in any such representation, warranty or covenant) as of such earlier date, and are incorporated herein by reference and are hereby remade and reaffirmed.

 

(v)     No Event of Default (howsoever defined) currently exists under the Credit Agreement, the Guaranty or any of the other Loan Documents and no condition exists which would constitute a default or an event of default (howsoever defined) under the Credit Agreement or any of the other Loan Documents but for the giving of notice or passage of time, or both.

 

(vi)     Except for matters specifically addressed in the Third Amendment, there has been no event or circumstance since the date of the closing of the Credit Agreement on October 16, 2012 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.

 

(vii)     The consummation of the transactions contemplated hereby is not prevented or limited by, nor does it conflict with or result in a breach of terms, conditions or provisions of any Obligor’s Organization Documents or any evidence of indebtedness, agreement or instrument of whatever nature to which any Obligor is a party or by which it is bound, does not constitute a default under any of the foregoing and does not violate any federal, state or local law, regulation or order or any order of any court or agency which is binding upon any Obligor.

 

(viii)     No consents, licenses or approvals are required in connection with the execution, delivery and performance by any of the Obligors and the validity against any of the Obligors of this Amendment other than those already obtained.

 


 

 




 


  

(ix)     The Obligors are not in default in the payment or performance of any other obligations or liabilities relating to Indebtedness to any other Person, including, without limitation, any other financial institution, and all payments due to any other creditors of any of the Obligors are current and not past due.

 

2.     Amendments to Credit Agreement and Other Loan Documents.

 

(a)     Any and all references in any Loan Document to the Credit Agreement (howsoever defined) shall mean the Credit Agreement, as amended and modified by this Amendment. 

 

(b)     Section 1.01 of the Credit Agreement, entitled “Defined Terms,” is hereby amended by deleting subsection (b) appearing in the definition of “Change of Control” in its entirety and by substituting the following in lieu thereof:

 

“(b)     during any period of twelve (12) consecutive months, a majority of the members of the board of directors or other equivalent governing body of Holdings ceases to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body; or”

 

3.     Reaffirmation of Obligors; Representations of Obligors. The Obligors, as makers, debtors, assignors, obligors, guarantors, or in other similar capacity in which they incur obligations to the Agent or the Lenders under any of the Loan Documents or otherwise, hereby ratify and reaffirm all of their respective payment and performance obligations, contingent or otherwise, under each of the Loan Documents to which they are a party and, to the extent they granted liens or mortgages on or security interests in any of their properties pursuant to any Collateral Document as security for the Obligations under or with respect to the Credit Agreement and the other Loan Documents, hereby ratify and reaffirm such grant of liens, mortgages and security interests and confirm and agree that with respect to liens and security interests on any right, title and interest of the Obligors in any personal property granted pursuant to a security agreement or otherwise, such liens and security interests hereafter secure all of the Obligations, including without limitation, the Obligations arising under the Revolving Loans, in each case as if each reference in such Collateral Document to the obligations secured thereby are construed to hereafter mean and refer to such Obligations (including, without limitation, the Revolving Loans) under the Credit Agreement and other Loan Documents, as hereby amended. Each Guarantor acknowledges, affirms and agrees that all Obligations of the Borrower to the Lenders and the Agent have been guaranteed by such Guarantors pursuant to the terms of the Guaranty, including, without limitation, those Obligations arising under the Revolving Loans. The Obligors acknowledge that each of the Loan Documents to which they are a party remain in full force and effect, continue to apply to the Obligations, including, without limitation, the Obligations arising under the Revolving Loans, and are hereby ratified and confirmed. The execution of this Amendment shall not operate as a novation, waiver of any right, power or remedy of the Lenders or the Agent nor constitute a waiver of any provision of any of the Loan Documents. The Obligors agree and acknowledge that this Amendment shall be deemed a Loan Document.

 


 

 




 


 

4.     Conditions to Effectiveness. This Amendment shall be deemed effective as of the day and year set forth above (the “Amendment Effective Date”) upon satisfaction (or waiver) of the following conditions (in each case, in form and substance reasonably acceptable to the Agent) on or prior to June 17, 2015:

 

(a)     The Agent shall have received a copy of this Amendment duly executed by each Obligor, the Required Lenders and the Agent, in form and substance reasonably satisfactory to the Agent.

 

(b)     The representations and warranties of the Obligors contained herein shall be true and correct in all material respects unless qualified by materiality in which case such representations and warranties shall be true and correct.

 

(c)     There shall exist no Default or Event of Default.

 

(d)     The Agent shall have received from the Borrower all fees and expenses that are payable in connection with the consummation of the transactions contemplated hereby and Agent’s counsel shall have received from the Borrower payment of all outstanding fees and expenses previously incurred and all fees and expenses incurred in connection with this Amendment. 

 

(e)     The Obligors shall have delivered to the Agent such other supporting documents and certificates as the Agent, the Lenders or their respective counsel may reasonably request. 

 

For purposes of determining compliance with the conditions specified in this Section 4, the Agent’s and any Lender’s execution and delivery of this Amendment shall be deemed to constitute their approval and acceptance of, or its satisfaction with, each document or other matter required under this Section 4 to be approved by or acceptable or satisfactory to the Agent and/or any such Lender.

 

5.     Expenses, Etc. Without limitation of the amounts payable by the Loan Parties under the Credit Agreement and other Loan Documents, the Obligors agree to pay all legal fees and expenses of the Agent and the Lenders incurred in connection with the preparation, negotiation and execution of this Amendment and the other documents executed and/or delivered in connection herewith.

 

6.     Successors and Assigns. This Amendment shall be binding upon the Obligors and upon their respective heirs, administrators, successors and assigns, and shall inure to the benefit of the Lenders and the Agent and their respective successors and assigns. The successors and assigns of such Persons shall include, without limitation, their respective receivers, trustees, or debtors-in-possession.

 


 

 




 


 

7.     Further Assurances. The Obligors hereby agree from time to time, as and when requested by the Agent or any of the Lenders, to execute and deliver or cause to be executed and delivered all such documents, instruments and agreements and to take or cause to be taken such further or other action as the Agent or any of the Lenders may reasonably deem necessary or desirable in order to carry out the intent and purposes of this Amendment and the Loan Documents.

 

8.     Severability. Wherever possible, each provision of this Amendment shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Amendment shall be prohibited by or invalid under such law, such provision shall be ineffective to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of this Amendment.

 

9.     Entirety. This Amendment and the other Loan Documents embody the entire agreement among the parties hereto and supersede all prior agreements and understandings, oral or written, if any, relating to the subject matter hereto.

 

10.     Execution in Counterparts; Electronic Execution. This Amendment may be executed in any number of counterparts, each of which when so executed and delivered shall be an original, but all of which shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Amendment or any other document required to be delivered hereunder, by fax transmission or e-mail transmission (e.g. “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Amendment. Without limiting the foregoing, upon the request of any party, such fax transmission or e-mail transmission shall be promptly followed by such manually executed counterpart.

 

11.     No Actions, Claims, Etc. As of the date hereof, each of the Obligors hereby acknowledges and confirms that it has no knowledge of any actions, causes of action, claims, demands, damages and liabilities of whatever kind or nature, in law or in equity, against the Agent, the Lenders, or the Agent’s or the Lenders’ respective officers, employees, representatives, agents, counsel or directors arising from any action by such Persons, or failure of such Persons to act under the Credit Agreement on or prior to the date hereof.

 

12.     Section Headings. The section headings herein are for convenience of reference only, and shall not affect in any way the interpretation of any of the provisions hereof.

 

13.     Governing Law. THIS AMENDMENT AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS AMENDMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

 


 

 




 


 

14.     Consent to Jurisdiction; Service of Process; Waiver of Jury Trial. The jurisdiction, service of process and waiver of jury trial provisions set forth in Sections 11.14 and 11.15 of the Credit Agreement are hereby incorporated by reference, mutatis mutandis.

 

15.     General Release. In consideration of the Agent’s willingness to enter into this Amendment, on behalf of the Lenders, each Obligor hereby releases and forever discharges the Agent, the L/C Issuer, the Swingline Lender, the Lenders and the Agent’s, the L/C Issuer’s, the Swingline Lender’s, and the Lender’s respective predecessors, successors, assigns, officers, managers, directors, employees, agents, attorneys, representatives, and affiliates (hereinafter all of the above collectively referred to as the “Bank Group”), from any and all known claims, counterclaims, demands, damages, debts, suits, liabilities, actions and causes of action of any nature whatsoever, including, without limitation, all claims, demands, and causes of action for contribution and indemnity, whether arising at law or in equity, whether liability be direct or indirect, liquidated or unliquidated, whether absolute or contingent, foreseen or unforeseen, and whether or not heretofore asserted, which any Obligor may have or claim to have against any of the Bank Group in any way related to or connected with the Loan Documents and the transactions contemplated thereby.

 

 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]

 


 

 




 


 

IN WITNESS WHEREOF, this Amendment has been duly executed by each of the undersigned as of the day and year first set forth above.

 

 

	
 
	
HIGHER ONE, INC., as the Borrower 

	
 
	 	
 

	
 
	By:	
/s/ Christopher Wolf 

	
 
	Name:	
Christopher Wolf 

	
 
	Title:	
Chief Financial Officer 

	 	 	 
	
 
	 	
 

	
 
	
HIGHER ONE HOLDINGS, INC., as a Guarantor 

	
 
	 	
 

	
 
	By:	
/s/ Christopher Wolf 

	
 
	Name:	
Christopher Wolf 

	
 
	Title:	
Chief Financial Officer 

	
 
	 	
 

	
 
	 	
 

	
 
	
HIGHER ONE REAL ESTATE, INC., as a Guarantor 

	
 
	 	
 

	
 
	By:	
/s/ Christopher Wolf 

	
 
	Name:	
Christopher Wolf

	
 
	Title:	
Chief Financial Officer 

	
 
	 	
 

	
 
	 	
 

	
 
	
HIGHER ONE REAL ESTATE SP, LLC, as a Guarantor 

	
 
	 	
 

	
 
	By:	
/s/ Christopher Wolf 

	
 
	Name:	
Christopher Wolf 

	
 
	Title:	
Chief Financial Officer 

	
 
	 	
 

	
 
	 	
 

	
 
	
HIGHER ONE MACHINES, INC., as a Guarantor 

	 	 
	
 
	By:	
/s/ Christopher Wolf 

	
 
	Name:	
Christopher Wolf 

	
 
	Title:	
Chief Financial Officer 



  


 

 




 


 

	 	BANK OF AMERICA, N.A., as Administrative Agent
	 	 	 
	 	By:	/s/ Christine Trotter
	 	Name: 	Christine Trotter
	 	Title: 	Assistant Vice President 


 


 

 




 


  


	 	BANK OF AMERICA, N.A., as a Lender, L/C Issuer and Swingline Lender 
	 	 	 
	 	 	 
	 	By:	/s/ Kristina L. Dempsey
	 	Name: 	Kristina L. Dempsey
	 	Title: 	Vice President



 


 

 




 


   


	 	CITIZENS BANK, N.A., formerly known as RBS Citizens, N.A., as a Lender
	 	 	 
	 	By:	 
	 	Name: 	 
	 	Title: 	 



 

 


 

 




 


    


	 	BANK OF MONTREAL – CHICAGO BRANCH, as a Lender
	 	 	 
	 	By:	/s/ Daniel A. Ryan
	 	Name: 	Daniel A. Ryan
	 	Title: 	Vice President



  


 

 




 


 


	 	WEBSTER BANK, N.A., as a Lender
	 	 	 
	 	By:	/s/ Richard Freeman
	 	Name:	Richard Freeman
	 	Title:	Vice President



  


 

 




 


 


	 	WELLS FARGO BANK, N.A., as a Lender
	 	 	 
	 	By:	/s/ Barbara A. Keegan
	 	Name:	Barbara A. Keegan
	 	Title:	Senior Vice President



  


 

 




 


 


	 	FIFTH THIRD BANK, as a Lender
	 	 	 
	 	By:	/s/ Gregory R. Bajt          
	 	Name:	Gregory R. Bajt
	 	Title:	Vice President



  


 

 




 


 


	 	SANTANDER BANK, N.A., formerly known as Sovereign Bank, N.A., as a Lender 
	 	 	 
	 	By:	/s/ Paul Larsen
	 	Name:	Paul Larsen
	 	Title:	Senior Vice President



  


 

 




 


 


	 	GOLDMAN SACHS BANK USA, as a Lender
	 	 
	 	By:	/s/ Jamie Mineri
	 	Name:	Jamie Mineri
	 	Title:	Authorized Signatory 



  


 

 




 


 


	 	BARCLAYS BANK PLC, as a Lender
	 	 	 
	 	By:	/s/ Luke Syme
	 	Name:	Luke Syme
	 	Title:	Assistant Vice President



  


 

 




 


 


	 	FIRST NIAGARA BANK, N.A., as a Lender
	 	 
	 	By:	/s/ Dante S. Fazzina
	 	Name:	Dante S. Fazzina
	 	Title:	Vice President