CONSENT AND FIRST AMENDMENT TO CREDIT AGREEMENT
Exhibit 10.35
CONSENT AND FIRST AMENDMENT TO CREDIT AGREEMENT
This CONSENT AND FIRST AMENDMENT TO CREDIT AGREEMENT, dated as of June 28, 2018 (this “Amendment”), is entered into by and among EQUINIX, INC., a Delaware corporation (“Equinix” or the “Borrower”), the Guarantors, each “Lender” (as such term is defined in the Credit Agreement referred to below) party hereto, and BANK OF AMERICA, N.A., as Administrative Agent. Capitalized terms not otherwise defined herein which are defined in the Credit Agreement shall have the same respective meanings herein as therein.
WHEREAS, the Borrower, the Guarantors, the Lenders, the Administrative Agent, and certain other parties thereto, are parties to that certain Credit Agreement, dated as of December 12, 2017 (as amended, amended and restated, supplemented or otherwise modified and in effect from time to time, the “Credit Agreement”), pursuant to which the Lenders agreed to make Loans and participate in Letters of Credit issued by the L/C Issuer, all upon the terms and subject to the conditions set forth therein; and
WHEREAS, the Borrower has requested certain amendments to the Credit Agreement, and the Lenders and L/C Issuer are willing to amend the Credit Agreement on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual agreements contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
§ 1. Amendments to the Credit Agreement.
1.01. Section 1.01 to the Credit Agreement is hereby amended by adding the following definition in its proper alphabetical order:
“Permitted Multi-Year L/Cs” means (a) the Letters of Credit listed on Schedule 2.03 (and any extensions or renewals of such Letters of Credit), and (b) other Letters of Credit with an expiry date occurring more than twelve months after the date of issuance or last extension but not later than (i) the Letter of Credit Expiration Date, or (ii) solely in the event that the Borrower Cash Collateralizes all applicable L/C Obligations not later than the Letter of Credit Expiration Date, a date that is no later than twelve months after the Letter of Credit Expiration Date; provided that the aggregate stated amount of all Permitted Multi-Year L/Cs issued pursuant to clause (b) shall not exceed $50,000,000 at any time.
1.02. Sections 2.03(a)(ii)(A) and (B) to the Credit Agreement are hereby amended by amending and restating such subsections in their entirety as follows:
(A) subject to Section 2.03(b)(iii), the expiry date of the requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless (x) the Required Revolving Lenders have approved such expiry date or (y) such Letter of Credit is a Permitted Multi-Year L/C; or
(B) the expiry date of the requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless (x) all the Revolving Lenders have approved such expiry date or (y) such Letter of Credit is a Permitted Multi-Year L/C issued pursuant to clause (b)(ii) of the definition thereof.
1.03. Clause (iv) of Section 10.01 to the Credit Agreement is hereby amended by replacing the phrase “as contemplated by clause (ii) of Section 2.13(e)” with the phrase “as contemplated by clause (iii) of Section 2.13(e).”
1.04. The Credit Agreement is hereby amended by adding the new Schedule 2.03 attached hereto as Annex A.
§ 2. Consent to Issuance of Letters of Credit. Notwithstanding anything to the contrary in Section 2.03(a)(ii) to the Credit Agreement, the Required Revolving Lenders hereby confirm their consent to the issuance of each of the Letters of Credit listed on Schedule 2.03, attached hereto as Annex A.
§ 3. Conditions to Effectiveness. This Amendment shall become effective as of the date hereof upon the satisfaction of each of the following conditions, in each case in a manner satisfactory in form and substance to the Administrative Agent:
3.01. This Amendment shall have been duly executed and delivered by the Borrower, the other Loan Parties, the Administrative Agent, the Required Lenders, all of the Revolving Lenders and the L/C Issuer;
3.02. The Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to the date hereof;
3.03. Delivery of such other items, documents, agreements and/or actions as the Administrative Agent may reasonably request.
§ 4. Representations and Warranties; No Default. Each of the Loan Parties represents and warrants to the Lenders and the Administrative Agent, on and as of the date hereof, that the representations and warranties set forth in Article V of the Credit Agreement, and in each other Loan Document, are true and correct in all material respects (except (i) to the extent of changes resulting from transactions contemplated or permitted by this Amendment, the Credit Agreement and the other Loan Documents, (ii) for representations and warranties which are qualified by the inclusion of a materiality standard, which representations and warranties are true and correct in all respects, (iii) to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date (except to the extent such representations and warranties are qualified by the inclusion of a materiality standard, in which case they are true and correct in all respects as of such earlier date) and (iv) that the representations and warranties contained in clauses (a) and (b) of Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 of the Credit Agreement), provided that all references therein to the Credit Agreement shall refer to the Credit Agreement as amended hereby. In addition, each of the Loan Parties hereby represents and warrants that the execution and delivery by such Person of this Amendment and the performance by such Person of all of its agreements and obligations under the Credit Agreement as amended hereby are within the corporate or other organizational authority of such Person and have been duly authorized by all necessary corporate or other organizational action on the part of such Person. The execution and delivery of this Amendment will result in valid and legally binding obligations of such Loan Party, enforceable against such Loan Party in accordance with its terms, except as limited by bankruptcy, insolvency or other laws of general application relating to or affecting the enforcement of creditors’ rights generally and general principles of equity. Each of the Loan Parties hereby further represents and warrants that no Default or Event of Default has occurred and is continuing.
§ 5. Ratification, etc. Except as expressly amended or otherwise modified hereby, the Credit Agreement (including the Multiparty Guaranty) and all documents, instruments and agreements related thereto, including, but not limited to the other Loan Documents, are hereby ratified and confirmed in all respects and shall continue in full force and effect. No amendment, consent or waiver herein granted or agreement herein made shall extend beyond the terms expressly set forth herein for such amendment, consent, waiver or agreement, as the case may be, nor shall anything contained herein be deemed to imply any willingness of the Administrative Agent or the Lenders to agree to, or otherwise prejudice any rights of the Administrative Agent or the Lenders with respect to, any similar amendments, consents, waivers or agreements that may be requested for any future period, and this Amendment shall not be construed as a waiver of any other provision of the Loan Documents or to permit the Borrower or any other Loan Party to take any other action which is prohibited by the terms of the Credit Agreement and the other Loan Documents. The Credit Agreement and this Amendment shall be read and construed as a single agreement. All references in the Credit Agreement or to any related agreement or instrument to the Credit Agreement shall hereafter refer to the Credit Agreement as amended hereby. This Amendment shall constitute a Loan Document. Each of the Guarantors party to the Multiparty Guaranty hereby acknowledges and consents to this Amendment and agrees that the Multiparty Guaranty and all other Loan Documents to which each of the Guarantors is a party remain in full force and effect, and each of the Guarantors confirms and ratifies all of its Obligations thereunder.
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§ 6. Counterparts. This Amendment may be executed in one or more counterparts, each of which shall be deemed an original but which together shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Amendment by facsimile or other electronic imaging means shall be effective as delivery of an original executed counterpart of this Amendment.
§ 7. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first above written.
BORROWER: | EQUINIX, INC. By: /s/ Xxxxx Xxxxxx Name: Xxxxx Xxxxxx Title: Chief Financial Officer |
GUARANTORS: | EQUINIX LLC By: /s/ Xxxxx Xxxxxx Name: Xxxxx Xxxxxx Title: Chief Financial Officer |
SWITCH & DATA LLC By: Equinix LLC, its sole managing member By: /s/ Xxxxx Xxxxxx Name: Xxxxx Xxxxxx Title: Chief Financial Officer | |
EQUINIX (US) ENTERPRISES, INC. By: /s/ Xxxxx Xxxxxx Name: Xxxxx Xxxxxx Title: Chief Financial Officer | |
SIGNATURE PAGE TO CONSENT AND FIRST AMENDMENT
BANK OF AMERICA, N.A.,
as Administrative Agent
as Administrative Agent
By: | /s/ Xxxxxx Xxxxxx Name: Xxxxxx Xxxxxx Title: Vice President |
BANK OF AMERICA, N.A.,
as a Lender and L/C Issuer
as a Lender and L/C Issuer
By: | /s/ Xxxxxx Xxx Name: Xxxxxx Xxx Title: Vice President |
SIGNATURE PAGE TO CONSENT AND FIRST AMENDMENT
JPMORGAN CHASE BANK, N.A.,
as a Lender
as a Lender
By: | /s/ Xxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx Title: Executive Director |
SIGNATURE PAGE TO CONSENT AND FIRST AMENDMENT
MUFG Bank, Ltd. (f.k.a. The Bank of Tokyo-Mitsubishi UFJ, Ltd.),
as a Lender
as a Lender
By: | /s/ Xxxxxxx Xxxxxxx Name: Xxxxxxx Xxxxxxx Title: Director |
SIGNATURE PAGE TO CONSENT AND FIRST AMENDMENT
ROYAL BANK OF CANADA,
as a Lender
as a Lender
By: | /s/ Xxxxx Xxxxxxx Name: XXXXX XXXXXXX Title: AUTHORIZED SIGNATORY |
SIGNATURE PAGE TO CONSENT AND FIRST AMENDMENT
CITIBANK, N.A.,
as a Lender
as a Lender
By: | /s/ Xxxxxx X. Xxxx Name: Xxxxxx X. Xxxx Title: Managing Director |
SIGNATURE PAGE TO CONSENT AND FIRST AMENDMENT
THE TORONTO-DOMINION BANK, NEW YORK BRANCH,
as a Lender
as a Lender
By: | /s/ Xxxxx Xxxxxx Name: XXXXX XXXXXX Title: AUTHORIZED SIGNATORY |
SIGNATURE PAGE TO CONSENT AND FIRST AMENDMENT
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as a Lender
as a Lender
By: | /s/ Xxxxxxxxx Xxxxxx Name: Xxxxxxxxx Xxxxxx Title: Director |
SIGNATURE PAGE TO CONSENT AND FIRST AMENDMENT
HSBC BANK USA, N.A.,
as a Lender
as a Lender
By: | /s/ Rumesha Ahmed Name: Rumesha Ahmed Title: Vice President |
SIGNATURE PAGE TO CONSENT AND FIRST AMENDMENT
BARCLAYS BANK PLC,
as a Lender
as a Lender
By: | /s/ Xxxx Xxx Name: Xxxx Xxx Title: Assistant Vice President |
SIGNATURE PAGE TO CONSENT AND FIRST AMENDMENT
XXXXXXX XXXXX BANK USA,
as a Lender
as a Lender
By: | /s/ Xxxxx Xxx Name: Xxxxx Xxx Title: Authorized Signatory |
SIGNATURE PAGE TO CONSENT AND FIRST AMENDMENT
ING Capital LLC,
as a Lender
as a Lender
By: | /s/ Xxxxxxxx Xxxx Name: Xxxxxxxx Xxxx Title: Vice President |
By: | /s/ Xxxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxx Title: Managing Director |
SIGNATURE PAGE TO CONSENT AND FIRST AMENDMENT
PNC BANK, NATIONAL ASSOCIATION,
as a Lender
as a Lender
By: | /s/ Xxx Xxxxxx Name: Xxx Xxxxxx Title: VP Corporate Banking |
SIGNATURE PAGE TO CONSENT AND FIRST AMENDMENT
BNP PARIBAS,
as a Lender
as a Lender
By: | /s/ Xxxxxxx de Clapiers Name: Xxxxxxx de Clapiers Title: Director |
By: | /s/ Xxxx Xxxxxxx Name: Xxxx Xxxxxxx Title: Director |
SIGNATURE PAGE TO CONSENT AND FIRST AMENDMENT
Sumitomo Mitsui Banking Corporation,
as a Lender
as a Lender
By: | /s/ Xxxxx X. Xxxxxxxxx Name: Xxxxx X. Xxxxxxxxx Title: Managing Director |
SIGNATURE PAGE TO CONSENT AND FIRST AMENDMENT
XXXXXX XXXXXXX BANK, N.A.,
as a Lender
as a Lender
By: | /s/ Emanuel Ma Name: Emanuel Ma Title: Authorized Signatory |
SIGNATURE PAGE TO CONSENT AND FIRST AMENDMENT
U.S. Bank National Association,
as a Lender
as a Lender
By: | /s/ Xxx Xxxxxxx Name: Xxx Xxxxxxx Title: Senior Vice President |
SIGNATURE PAGE TO CONSENT AND FIRST AMENDMENT
Mizuho Bank, Ltd.,
as a Lender
as a Lender
By: | /s/ Xxxxxxx Xxxxxxx Name: Xxxxxxx Xxxxxxx Title: Managing Director |
SIGNATURE PAGE TO CONSENT AND FIRST AMENDMENT
THE BANK OF NOVA SCOTIA,
as a Lender
as a Lender
By: | /s/ Xxxxx Xxxxx Name: Xxxxx Xxxxx Title: Director |
SIGNATURE PAGE TO CONSENT AND FIRST AMENDMENT
ANNEX A
Schedule 2.03
Permitted Multi-Year Letters of Credit
Instrument ID | Issue Date | Expiry Date | Applicant Name | Beneficiary Name | Currency | Local Curr Amt | USD Amt |
00000068132855 | 5/25/2017 | 8/31/2018 | EQUINIX SINGAPORE PT | BANK OF AMERICA | SGD | 121,671.24 | 91,910.59 |
00000068132856 | 5/25/2017 | 8/31/2018 | EQUINIX SINGAPORE PT | BANK OF AMERICA | SGD | 4,013,162.88 | 3,031,547.65 |
00000068132857 | 5/25/2017 | 8/31/2018 | EQUINIX SINGAPORE PT | BANK OF AMERICA | SGD | 2,835.78 | 2,142.15 |
00000068132858 | 5/25/2017 | 8/31/2018 | EQUINIX SINGAPORE PT | BANK OF AMERICA | SGD | 1,564,605.00 | 1,181,904.34 |
00000068133023 | 5/25/2017 | 8/31/2018 | EQUINIX SINGAPORE PT | BANK OF AMERICA | SGD | 189,956.04 | 143,493.00 |
00000068133574 | 6/14/2017 | 8/31/2018 | EQUINIX AUSTRALIA PT | BANK OF AMERICA | AUD | 100,000.00 | 75,550.00 |
00000068133728 | 6/19/2017 | 10/30/2018 | EQUINIX AUSTRALIA PT | BANK OF AMERICA | AUD | 100,000.00 | 75,550.00 |
00000068133080 | 7/25/2017 | 10/1/2018 | EQUINIX HONG KONG LI | BANK OF AMERICA | HKD | 19,824,000.00 | 2,525,801.61 |
00000068136727 | 12/18/2017 | 4/30/2020 | EQUINIX SINGAPORE PT | BANK OF AMERICA | SGD | 3,517,114.00 | 2,656,831.78 |
00000068136527 | 12/21/2017 | 9/30/2019 | EQUINIX HONG KONG LI | BANK OF AMERICA | HKD | 9,106,219.50 | 1,160,235.26 |
00000068137240 | 3/27/2018 | 8/31/2020 | EQUINIX SINGAPORE PT | BANK OF AMERICA | SGD | 344,662.32 | 260,358.30 |
00000068094943 | 4/6/2018 | 4/6/2020 | EQUINIX, INC. | ANZ BANKING GROUP LI | AUD | 2,500,000.00 | 1,888,750.00 |
00000068094947 | 4/6/2018 | 10/1/2019 | EQUINIX, INC. | ANZ BANKING GROUP LI | AUD | 125,000.00 | 94,437.50 |
00000068094948 | 4/18/2018 | 10/30/2022 | EQUINIX AUSTRALIA PT | BANK OF AMERICA | AUD | 1,192,207.32 | 900,712.63 |
00000068094946 | 4/30/2018 | 5/30/2022 | EQUINIX AUSTRALIA PT | BANK OF AMERICA | AUD | 1,786,292.00 | 1,349,543.61 |
