FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
EX-10.1
EXECUTION
VERSION
FIRST AMENDMENT
TO
AMENDED AND
RESTATED CREDIT AGREEMENT
This FIRST AMENDMENT TO AMENDED AND
RESTATED CREDIT AGREEMENT (this “Amendment”) is dated as
of April 14, 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”), the
Lenders party hereto 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 and the
Administrative Agent are parties to that certain Amended and
Restated Credit Agreement dated as of March 3, 2015 (as 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 Lenders
party to this Amendment (which collectively constitute the Required
Lenders under the Credit Agreement) hereby consents 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 to increase its Revolving
Credit Commitments in 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:
“Bail-In Action” means the
exercise of any Write-Down and Conversion Powers by the applicable
EEA Resolution Authority in respect of any liability of an EEA
Financial Institution.
“Bail-In Legislation” means,
with respect to any EEA Member Country implementing Article 55 of
Directive 2014/59/EU of the European Parliament and of the Council
of the European Union, the implementing law for such EEA Member
Country from time to time which is described in the EU Bail-In
Legislation Schedule.
“EEA Financial Institution”
means (a) any credit institution or investment firm established in
any EEA Member Country which is subject to the supervision of an
EEA Resolution Authority, (b) any entity established in an EEA
Member Country which is a parent of an institution described in
clause (a) of this definition, or (c) any financial institution
established in an EEA Member Country which is a subsidiary of an
institution described in clauses (a) or (b) of this definition and
is subject to consolidated supervision with its
parent.
“EEA Member Country” means
any of the member states of the European Union, Iceland,
Liechtenstein, and Norway.
“EEA Resolution
Authority” means any public administrative authority
or any Person entrusted with public administrative authority of any
EEA Member Country (including any delegee) having responsibility
for the resolution of any credit institution or investment firm
established in any EEA Member Country.
“EU Bail-In Legislation
Schedule” means the EU Bail-In Legislation Schedule
published by the Loan Market Association (or any successor
thereto), as in effect from time to time.
“First Amendment” means
the First Amendment to this Agreement, dated as of the First
Amendment Effective Date, by and among the Borrowers, the
Guarantors, the Lenders and the Administrative
Agent.
“First Amendment Effective
Date” means April 14, 2017.
“Write-Down and Conversion
Powers” means, with respect to any EEA Resolution
Authority, the write-down and conversion powers of such EEA
Resolution Authority from time to time under the Bail-In
Legislation for the applicable EEA Member Country, which write-down
and conversion powers are described in the EU Bail-In Legislation
Schedule.
(b) the definition of “Defaulting
Lender” set forth in Section 1.1 of the Credit
Agreement is hereby amended by deleting the word “or”
immediately after clause (d)(i) of such definition and adding the
following new clause (d)(iii) after the end of clause (d)(ii)
therein:
“or (iii) become the subject
of a Bail-In Action”
(c) the definition of “Federal
Funds Rate” set forth in Section 1.1 of the Credit
Agreement is hereby amended by deleting the following language from
such definition:
“arranged by federal funds
brokers on such day (or, if such day is not a Business Day, for the
immediately preceding Business Day)”
(d) the definition of “Interest
Period” set forth in Section 1.1 of the Credit
Agreement is hereby amended by deleting “six (6)” and
inserting “ten (10)” in lieu thereof in clause (e) of
such definition.
(e) the definition of
“LIBOR” set forth in Section 1.1 of the Credit
Agreement is hereby amended and restated in its entirety as
follows:
“LIBOR”
means,
(a) for any interest rate calculation
with respect to a LIBOR Rate Loan, the rate of interest per annum
determined on the basis of the rate for deposits in Dollars for a
period equal to the applicable Interest Period as published by the
ICE Benchmark Administration Limited, a United Kingdom company, at
approximately 11:00 a.m. (London time) two (2) London Banking Days
prior to the first day of the applicable Interest Period. If, for
any reason, such rate is not so published, then “LIBOR”
shall be determined by the Administrative Agent to be the
arithmetic average of the rate per annum at which deposits in
Dollars would be offered by first class banks in the London
interbank market to the Administrative Agent at approximately 11:00
a.m. (London time) two (2) London Banking Days prior to the first
day of the applicable Interest Period for a period equal to such
Interest Period, and
(b) for any interest rate calculation
with respect to a Base Rate Loan, the rate of interest per annum
determined on the basis of the rate for deposits in Dollars for an
Interest Period equal to one month (commencing on the date of
determination of such interest rate) as published by the ICE
Benchmark Administration Limited, a United Kingdom company, at
approximately 11:00 a.m. (London time) on such date of
determination, or, if such date is not a Business Day, then the
immediately preceding Business Day. If, for any reason, such rate
is not so published, then “LIBOR” for such Base Rate
Loan shall be determined by the Administrative Agent to be the
arithmetic average of the rate per annum at which deposits in
Dollars would be offered by first class banks in the London
interbank market to the Administrative Agent at approximately 11:00
a.m. (London time) on such date of determination for a period equal
to one month commencing on such date of
determination.
Each calculation by the
Administrative Agent of LIBOR shall be conclusive and binding for
all purposes, absent manifest error. To the extent a comparable or
successor rate is approved by the Administrative Agent in
connection herewith, the approved rate shall be applied to the then
applicable Interest
Period in a manner consistent with market practice as reasonably
determined by the Administrative Agent.”
(f) 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” with “Section 2.7 and the First
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 First
Amendment Effective Date shall be $300,000,000. The Revolving
Credit Commitment of each Revolving Credit Lender as of the First
Amendment Effective Date is set forth opposite the name of such
Revolving Credit Lender on Schedule 1.1(a).”
(g) 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 First Amendment Effective
Date is set forth opposite the name of such Revolving Credit Lender
on Schedule
1.1(a).”
(h) 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” with “Section 2.7 or pursuant to
the First Amendment”.
(i) 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
$50,000,000”
(j) Section 4.14 of the Credit
Agreement is hereby amended by deleting the last sentence of clause
(a)(iv) thereof and replacing it with the
following:
“Subject to Section 11.26, no reallocation
hereunder shall constitute a waiver or release of any claim of any
party hereunder against a Defaulting Lender arising from that
Lender having become a Defaulting Lender, including any claim of a
Non-Defaulting Lender as a result of such Non-Defaulting
Lender’s increased exposure following such
reallocation.”
(k) Section 8.13(b) of the Credit
Agreement is hereby amended and restated in its entirety as
follows:
“(b) Minimum
Liquidity. At any time, permit Liquidity to be less than (i)
$225,000,000 prior to the First Amendment Effective Date and (ii)
$250,000,000 on and after the First Amendment Effective
Date.”
(l) Article XI of the Credit Agreement
is hereby amended by adding the following new Section 11.26 thereto and in
connection therewith the table of contents shall be amended to
include a reference to “Section 11.26 Acknowledgement and
Consent to Bail-In of EEA Financial
Institutions”:
“SECTION
11.26 Acknowledgement and Consent to
Bail-In of EEA Financial Institutions. Notwithstanding
anything to the contrary in any Loan Document or in any other
agreement, arrangement or understanding among any such parties,
each party hereto acknowledges that any liability of any EEA
Financial Institution arising under any Loan Document, to the
extent such liability is unsecured, may be subject to the
Write-Down and Conversion Powers of an EEA Resolution Authority and
agrees and consents to, and acknowledges and agrees to be bound
by:
(a) the
application of any Write-Down and Conversion Powers by an EEA
Resolution Authority to any such liabilities arising hereunder
which may be payable to it by any party hereto that is an EEA
Financial Institution; and
(b) the
effects of any Bail-in Action on any such liability, including, if
applicable:
(i) a
reduction in full or in part or cancellation of any such
liability;
(ii)
a conversion of all, or a portion of, such liability into shares or
other instruments of ownership in such EEA Financial Institution,
its parent undertaking, or a bridge institution that may be issued
to it or otherwise conferred on it, and that such shares or other
instruments of ownership will be accepted by it in lieu of any
rights with respect to any such liability under this Agreement or
any other Loan Document; or
(iii) the
variation of the terms of such liability in connection with the
exercise of the Write-Down and Conversion Powers of any EEA
Resolution Authority.”
(m) 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. 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 Lender
agreeing to increase its Revolving Credit Commitment hereunder and
the Required Lenders;
(ii) a restated 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;
(iv) legal opinions from counsel to the
Borrowers with respect to the Loan Documents as amended, modified
and reaffirmed by this Amendment; and
(v) the results of a Lien search made
against each Borrower, in each case under the Uniform Commercial
Code as in effect in each jurisdiction in which filings or
recordations under the Uniform Commercial Code should be made to
evidence or perfect security interests in all assets of such
Borrower, indicating among other things that the assets of each
such Borrower are free and clear of any Lien (except for Permitted
Liens);
(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 March 24, 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 4, 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
First Amendment Effective Date specifying its objection
thereto.
5. 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 First 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.
6. 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.
7. 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.
8. 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).
9.
Costs, Expenses and
Taxes. The Borrowers agree to pay all reasonable
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 fees and out-of-pocket expenses of counsel for the
Administrative Agent.
10.
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.
11. 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.
12.
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.
13.
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.
14.
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
Administrative
Agent and Lenders:
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent, Swingline Lender, Issuing Lender and
Lender
By: /s/ Xxxxxxx
Xxxx
Name: Xxxxxxx
Xxxx
Title: AVP, Relationship
Manager
U.S. Bank National Association
consents to the amendments set forth in this Amendment and is not
increasing its Revolving Credit Commitment, which shall remain
unchanged after giving effect to this Amendment
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/ Xxxxx
Xxxxx
Name: Xxxxx
Xxxxx
Title: SVP Relationship
Manager
SUNTRUST BANK, as
Lender
By: /s/ Xxxx
Xxxxxxx
Name: Xxxx
Xxxxxxx
Title: Director
