SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit 10.1
SECOND AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
This
SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
“Amendment”) is dated as
of October 31, 2017, by and among UBIQUITI NETWORKS, INC., a
Delaware corporation (the “Parent Borrower”) and
UBIQUITI INTERNATIONAL HOLDING COMPANY LIMITED, an exempted company
incorporated under the laws of the Cayman Islands (the
“Cayman
Borrower” and, together with the Parent Borrower, the
“Borrowers”), certain
Subsidiaries of the Borrowers party hereto (the “Guarantors”), each of the
Existing Lenders referred to below, the lenders identified on the
signature pages hereto as “New Lenders” (the
“New
Lenders”), and XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as administrative agent for the Lenders (in such capacity, the
“Administrative
Agent”).
Statement of Purpose
The
Borrowers, the Lenders party thereto (the “Existing Lenders” and,
together with the New Lenders, the “Lenders”) and the
Administrative Agent are parties to that certain Amended and
Restated Credit Agreement dated as of March 3, 2015 (as amended by
that certain First Amendment to Amended and Restated Credit
Agreement, dated as of April 14, 2017, and as further amended,
restated, supplemented or otherwise modified from time to time, the
“Credit
Agreement”), pursuant to which the Lenders have
extended a term loan to the Parent Borrower and a revolving credit
facility to the Borrowers.
The
Borrowers have requested, and subject to the terms and conditions
set forth herein, the Administrative Agent and the Lenders have
agreed, to increase the Revolving Credit Commitments and amend the
Credit Agreement as specifically set forth herein.
NOW,
THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Capitalized
Terms. All capitalized undefined terms used in this
Amendment (including, without limitation, in the introductory
paragraph and the Statement of Purpose hereto) shall have the
meanings assigned thereto in the Credit Agreement (as amended by
this Amendment).
2.
Consent;
Additional Revolving Credit Commitments.
(a) Subject
to the terms and conditions set forth herein, each of the Existing
Lenders party to this Amendment (which collectively constitute the
Required Lenders under the Credit Agreement) and each of the New
Lenders hereby consent to the amendments set forth herein and to
the increase of the Revolving Credit Commitments as set forth
herein.
(b)
Subject to the terms and conditions set forth herein, each
Revolving Credit Lender party hereto severally agrees that its
Revolving Credit Commitment is the principal amount set forth
opposite such Revolving Credit Lender’s name on Schedule 1.1(a), as amended
pursuant to this Amendment.
3. Amendments
to Credit Agreement. Subject to and in accordance with the
terms and conditions set forth herein, the parties hereto agree
that the Credit Agreement is amended as follows:
(a) the
following definitions are hereby added to Section 1.1 of the Credit
Agreement in the appropriate alphabetical order to read in their
entirety as follows:
“Second Amendment” means
the Second Amendment to this Agreement, dated as of the Second
Amendment Effective Date, by and among the Borrowers, the
Guarantors, the Lenders and the Administrative Agent.
“Second Amendment Effective
Date” means October 31, 2017.
(b) the
definition of “Revolving Credit Commitment” set forth
in Section 1.1 of
the Credit Agreement is hereby amended by (i) replacing the
reference therein to “Section 2.7 and the First
Amendment” with “Section 2.7, the First Amendment and
the Second Amendment” and (ii) replacing the last two
sentences of such definition in their entirety with the
following:
“The
aggregate Revolving Credit Commitment of all the Revolving Credit
Lenders on the Second Amendment Effective Date shall be
$425,000,000. The Revolving Credit Commitment of each Revolving
Credit Lender as of the Second Amendment Effective Date is set
forth opposite the name of such Revolving Credit Lender on
Schedule 1.1(a).”
(c) the
definition of “Revolving Credit Commitment Percentage”
set forth in Section
1.1 of the Credit Agreement is hereby amended by replacing
the last sentence of such definition in its entirety with the
following sentence:
“The
Revolving Credit Commitment of each Revolving Credit Lender as of
the Second Amendment Effective Date is set forth opposite the name
of such Revolving Credit Lender on Schedule
1.1(a).”
(d)
the definition of “Revolving Credit Facility” set forth
in Section 1.1 of
the Credit Agreement is hereby amended by replacing the reference
therein to “Section 2.7 or pursuant to the First
Amendment” with “Section 2.7 or pursuant to the First
Amendment or the Second Amendment”.
(e)
Section 2.7(a) of
the Credit Agreement is hereby amended by replacing clause (A) of
the proviso of such clause with the following:
“(A) the
aggregate principal amount for all such Incremental Increases
incurred after the First Amendment Effective Date shall not exceed
$125,000,000 and the aggregate principal amount for all such
Incremental Increases incurred after the Second Amendment Effective
Date shall not exceed $50,000,000”
(f) Schedule
1.1(a) to the Credit Agreement is hereby amended such that,
after giving effect to all such amendments, it shall read in its
entirety as set forth on Annex A attached
hereto.
4.
New
Lender Joinder. By its execution of this Amendment, each New
Lender hereby acknowledges, agrees and confirms that, on and after
the Second Amendment Effective Date:
(a) it
will be deemed to be a party to the Credit Agreement as a
“Lender” and a “Revolving Credit Lender”
for all purposes of the Credit Agreement and the other Loan
Documents, and shall have all of the obligations of, and shall be
entitled to the benefits of, a Lender and a Revolving Credit Lender
under the Credit Agreement as if it had executed the Credit
Agreement;
(b) it
has received a copy of the Credit Agreement, copies of the most
recent financial statements delivered pursuant to Section 7.1 thereof and such
other documents and information as it deems appropriate,
independently and without reliance upon the Administrative Agent,
the Arrangers, any other Lender or any of their respective
Affiliates, to make its own credit analysis and decision to enter
into this Amendment and become a Lender and a Revolving Credit
Lender under the Credit Agreement; and
(c) it
will provide any additional documentation (including, without
limitation, any Assignment and Assumption to be executed in
connection with this Amendment) to evidence it status as a Lender
and a Revolving Credit Lender as of the Second Amendment Effective
Date or as required to be delivered by it pursuant to the terms of
the Credit Agreement.
5. Conditions
to Effectiveness. The
effectiveness of this Amendment shall be subject to the
satisfaction of each of the following conditions
precedent:
(a) the
Administrative Agent’s receipt of the following, each
properly executed by a Responsible Officer of the signing Credit
Party and each in form and substance reasonably satisfactory to the
Administrative Agent:
(i)
this Amendment, duly executed by each of the Credit Parties, the
Administrative Agent, each Existing Lender agreeing to increase its
Revolving Credit Commitment hereunder, each New Lender and the
Required Lenders;
(ii)
a restated, or with respect to a New Lender, new, Revolving Credit
Note executed by the Borrowers in favor of each Lender that has
requested a Revolving Credit Note;
(iii)
a certificate of a Responsible Officer of each Borrower certifying
that (A) the articles or certificate of incorporation or formation
(or equivalent), as applicable, of such Borrower have not been
amended since the date of the last delivered certificate, or if
they have been amended, attached thereto are true, correct and
complete copies of the same, certified as of a recent date by the
appropriate Governmental Authority in its jurisdiction of
incorporation, organization or formation (or equivalent), as
applicable, (B) the bylaws or other governing document of such
Borrower have not been amended since the date of the last delivered
certificate, or if they have been amended, attached thereto are
true, correct and complete copies of the same, (C) attached thereto
is a true, correct and complete copy of resolutions duly adopted by
the board of directors (or other governing body) of such Borrower
authorizing and approving the transactions contemplated hereunder
and the execution, delivery and performance of this Amendment and
the Credit Agreement as amended by this Amendment and (D) attached
thereto is a true, correct and complete copy of such certificates
of good standing from the applicable secretary of state of the
state of incorporation, organization or formation (or equivalent),
as applicable, of each Borrower; and
(iv)
legal opinions from counsel to the Borrowers with respect to the
Loan Documents as amended, modified and reaffirmed by this
Amendment.
(b)
no Default or Event of Default shall have occurred
and be continuing immediately prior to or after giving effect to
this Amendment; and
(c)
the Borrowers shall have paid all fees and expenses as separately
agreed to in connection with this Amendment, including without
limitation, (i) those set forth in the Engagement Letter dated as
of October 17, 2017 between the Parent Borrower and Xxxxx Fargo
Securities, LLC and (ii) all reasonable fees, charges and
disbursements of counsel to the Administrative Agent (directly to
such counsel if requested by the Administrative
Agent).
For
purposes of determining compliance with the conditions specified in
this Section 5,
each Lender that has signed this Amendment shall be deemed to have
consented to, approved or accepted or to be satisfied with, each
document or other matter required thereunder to be consented to or
approved by or acceptable or satisfactory to a Lender unless the
Administrative Agent shall have received notice from such Lender
prior to the Second Amendment Effective Date specifying its
objection thereto.
6.
Reallocation of Revolving
Credit Commitments and Revolving Credit Exposure. The
parties hereto agree that the Administrative Agent shall reallocate
the Revolving Credit Loans and other Revolving Credit Exposure in
accordance with the updated Revolving Credit Commitment Percentages
as of the Second Amendment Effective Date and the Revolving Credit
Lenders agree to make all payments and adjustments necessary to
effect such reallocation. The Lenders party hereto agree to waive
any costs required to be paid by the Borrowers pursuant to
Section 4.9 of the
Credit Agreement in connection with such reallocation.
7. Limited
Effect. Except as expressly provided herein, the Credit
Agreement and the other Loan Documents shall remain unmodified and
in full force and effect. This Amendment shall not be deemed (a) to
be a waiver of, or consent to, or a modification or amendment of,
any other term or condition of the Credit Agreement or any other
Loan Document other than as expressly set forth herein, (b) to
prejudice any right or rights which the Administrative Agent or the
Lenders may now have or may have in the future under or in
connection with the Credit Agreement or the other Loan Documents or
any of the instruments or agreements referred to therein, as the
same may be amended, restated, supplemented or modified from time
to time, or (c) to be a commitment or any other undertaking or
expression of any willingness to engage in any further discussion
with the Borrowers, any of their Subsidiaries or any other Person
with respect to any other waiver, amendment, modification or any
other change to the Credit Agreement or the Loan Documents or any
rights or remedies arising in favor of the Lenders or the
Administrative Agent, or any of them, under or with respect to any
such documents. References in the Credit Agreement to “this
Agreement” (and indirect references such as
“hereunder”, “hereby”,
“herein”, “hereof” or other words of like
import) and in any Loan Document to the “Credit
Agreement” shall be deemed to be references to the Credit
Agreement as modified hereby.
8. Representations
and Warranties. Each Borrower and each Guarantor represents
and warrants that (a) it has the corporate or other equivalent
power and authority to make, deliver and perform this Amendment,
(b) it has taken all necessary corporate or other equivalent action
to authorize the execution, delivery and performance of this
Amendment, (c) this Amendment has been duly executed and delivered
on behalf of such Person, (d) this Amendment constitutes a legal,
valid and binding obligation of such Person, enforceable against it
in accordance with its 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 proceedings in equity
or at law), (e) each of the representations and warranties made by
such Credit Party in or pursuant to the Loan Documents is true and
correct in all material respects (except to the extent that such
representation and warranty is subject to a materiality or Material
Adverse Effect qualifier, in which case it shall be true and
correct in all respects), in each case on and as of the date hereof
as if made on and as of the date hereof, except to the extent that
such representations and warranties relate to an earlier date, in
which case such representations and warranties are true and correct
in all material respects as of such earlier date and (f) no Default
or Event of Default has occurred and is continuing as of the date
hereof or would result after giving effect to this Amendment and
the transactions contemplated hereby.
9. Acknowledgement
and Reaffirmation. By their execution hereof, each Borrower
and each Guarantor hereby expressly (a) consents to this Amendment,
(b) acknowledges that the covenants, representations, warranties
and other obligations set forth in the Credit Agreement, the Notes
and the other Loan Documents to which such Borrower or such
Guarantor is a party remain in full force and effect (it being
understood and agreed that to the extent any such covenants,
representations, warranties or other obligations are expressly
modified herein, such covenants, representations, warranties or
obligations shall continue in full force and effect as expressly
modified herein) and (c) ratifies and reaffirms any guarantee and
grant of security interests and Liens on any of their respective
Collateral pursuant to any Loan Document as security for or
otherwise guaranteeing the Obligations under or with respect to the
Loan Documents and confirm and agree that such security interests
and Liens are in all respects continuing and in full force and
effect and shall continue to secure all of the Obligations under
the Loan Documents (after giving effect to this
Amendment).
10. Costs,
Expenses and Taxes. The Borrowers agree to pay all
reasonable and documented out-of-pocket costs and expenses of the
Administrative Agent in connection with the preparation, execution,
delivery and administration of this Amendment and the other
instruments and documents to be delivered hereunder, including,
without limitation, the reasonable and documented fees and
out-of-pocket expenses of counsel for the Administrative
Agent.
11.
Execution in
Counterparts. This Amendment may be executed by one or more
of the parties hereto in any number of separate counterparts and
all of said counterparts taken together shall be deemed to
constitute one and the same instrument. Delivery of an executed
signature page of this Amendment by facsimile, telecopy, pdf or
other electronic transmission shall be effective as delivery of a
manually executed counterpart hereof.
12.
Governing Law. THIS
AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS
AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAW OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO THE
CONFLICTS OR CHOICE OF LAW PRINCIPLES THEREOF.
13.
Entire Agreement.
This Amendment is the entire agreement, and supersedes any prior
agreements and contemporaneous oral agreements, of the parties
concerning its subject matter. This Amendment is a Loan Document
and is subject to the terms and conditions of the Credit
Agreement.
14.
Successors and
Assigns. This Amendment shall be binding on and inure to the
benefit of the parties and their heirs, beneficiaries, successors
and permitted assigns.
15.
Syndication Agent.
In connection with this Amendment and the Credit Agreement on and
after the date hereof, and subject to Section 10.8 of the Credit
Agreement, HSBC Bank USA, National Association shall serve as
Syndication Agent.
[Remainder
of page intentionally left blank; signature pages
follow]
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed under seal by their duly authorized officers, all as of
the day and year first written above.
Borrowers:
UBIQUITI NETWORKS, INC., as Parent
Borrower
By:
/s/ Xxxxxxx
Xxxxxxxxx
Name:
Xxxxxxx Xxxxxxxxx
Title:
Interim CFO; EVP Operations and Legal Affairs;
Secretary
UBIQUITI INTERNATIONAL HOLDING COMPANY
LIMITED, as Cayman Borrower
By:
/s/ Xxxxxx X.
Xxxx
Name:
Xxxxxx X. Xxxx
Title:
Director
Guarantors:
UBIQUITI CAYMAN LIMITED,
as
Guarantor
By:
/s/ Xxxxxx X.
Xxxx
Name:
Xxxxxx X. Xxxx
Title:
Director
UBIQUITI NETWORKS INTERNATIONAL LIMITED,
as Guarantor
By:
/s/ Xxxxxx X.
Xxxx
Name:
Xxxxxx X. Xxxx
Title:
Director
UBIQUITI ENERGY, LLC, as
Guarantor
By:
Ubiquiti Networks, Inc., its manager
By:
/s/ Xxxxxxx
Xxxxxxxxx
Name:
Xxxxxxx Xxxxxxxxx
Title:
Interim CFO; EVP Operations and Legal Affairs;
Secretary
UBIQUITI LABS, LLC, as
Guarantor
By:
Ubiquiti Networks, Inc., its manager
By:
/s/ Xxxxxxx
Xxxxxxxxx
Name:
Xxxxxxx Xxxxxxxxx
Title:
Interim CFO; EVP Operations and Legal Affairs;
Administrative Agent
and Lenders:
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent, Swingline Lender, Issuing Lender and
Lender
By:
/s/ Xxxx
Xxxxxxxx
Name:
Xxxx Xxxxxxxx
Title: Director
U.S. BANK NATIONAL ASSOCIATION, as
Lender
By:
/s/ Xxxx X.
Xxxxxxx
Name:
Xxxx X. Xxxxxxx
Title: Vice President
HSBC BANK USA, NATIONAL
ASSOCIATION,
as
Lender
By:
/s/ Xxxxxxx
Xxxxxx
Name:
Xxxxxxx Xxxxxx
Title: VP, Global Relationship
Manager
CITIBANK, N.A., as Lender
By:
/s/ Xxxxxxx
Xxxxx
Name:
Xxxxxxx Xxxxx
Title: Managing Director
SUNTRUST BANK, as Lender
By:
/s/ Xxxxxx
Xxxx
Name:
Xxxxxx Xxxx
Title: Vice President
New Lenders:
BANK OF THE WEST, as New
Lender
By:
/s/ Xxxxxxx
Xxx
Name:
Xxxxxxx Xxx
Title: Vice President
Ubiquiti
Networks, Inc.
Second
Amendment to Amended and Restated Credit Agreement
Signature
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