SECOND AMENDED AND RESTATED CREDIT AGREEMENT dated as of January 17, 2018, by and among UBIQUITI NETWORKS, INC., and UBIQUITI INTERNATIONAL HOLDING COMPANY LIMITED, as Borrowers, the Lenders referred to herein, as Lenders, WELLS FARGO BANK, NATIONAL...
Published
CUSIP Number: ▇▇▇▇▇▇▇▇▇
Revolver
CUSIP Number: ▇▇▇▇▇▇▇▇▇
Term
Loan CUSIP Number: ▇▇▇▇▇▇▇▇▇
|
|
|
|
$900,000,000
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
dated
as of January 17, 2018,
by and
among
and
UBIQUITI INTERNATIONAL HOLDING COMPANY LIMITED,
as
Borrowers,
the
Lenders referred to herein,
as
Lenders,
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
as
Administrative Agent,
Swingline
Lender and Issuing Lender,
▇▇▇▇▇ FARGO SECURITIES, LLC,
HSBC BANK USA, NATIONAL ASSOCIATION,
and
FIFTH THIRD BANK,
as
Joint Lead Arrangers and Joint Bookrunners,
and
U.S. BANK NATIONAL ASSOCIATION,
PNC BANK, NATIONAL ASSOCIATION,
and
MUFG UNION BANK, N.A.,
as
Documentation Agents
|
|
|
|
ARTICLE
I
DEFINITIONS
SECTION
1.1
Definitions
SECTION
1.2
Other Definitions
and Provisions
SECTION
1.3
Accounting
Terms
SECTION
1.4
UCC
Terms
SECTION
1.5
Rounding
SECTION
1.6
References to
Agreement and Laws
SECTION
1.7
Times of
Day
SECTION
1.8
Letter of Credit
Amounts
SECTION
1.9
Guarantees and
Non-Recourse Indebtedness
SECTION
1.10
Covenant Compliance
Generally
SECTION
1.11
Rates
ARTICLE
II CREDIT FACILITIES
SECTION
2.1
Revolving Credit
Loans
SECTION
2.2
Swingline
Loans
SECTION
2.3
Procedure for
Advances of Revolving Credit Loans and Swingline
Loans
SECTION
2.4
Repayment and
Prepayment of Revolving Credit and Swingline
Loans
SECTION
2.5
Permanent Reduction
of the Revolving Credit Commitment
SECTION
2.6
Termination of
Revolving Credit Facility
SECTION
2.7
Increase in
Revolving Credit Commitments; Incremental Loans
SECTION
2.8
Initial Term
Loan
SECTION
2.9
Procedure for
Advance of Term Loans
SECTION
2.10
Repayment of Term
Loans
SECTION
2.11
Prepayments of Term
Loans
ARTICLE
III LETTER OF CREDIT FACILITY
SECTION
3.1
L/C
Facility
SECTION
3.2
Procedure for
Issuance of Letters of Credit
SECTION
3.3
Commissions and
Other Charges
SECTION
3.4
L/C
Participations
SECTION
3.5
Reimbursement
Obligation of the Parent Borrower
SECTION
3.6
Obligations
Absolute
SECTION
3.7
Effect of Letter of
Credit Application
ARTICLE
IV GENERAL LOAN PROVISIONS
SECTION
4.1
Interest
SECTION
4.2
Notice and Manner
of Conversion or Continuation of Loans
SECTION
4.3
Fees
SECTION
4.4
Manner of
Payment
SECTION
4.5
Evidence of
Indebtedness
SECTION
4.6
Sharing of Payments
by ▇▇▇▇▇▇▇
SECTION
4.7
Administrative
Agent’s Clawback
SECTION
4.8
Changed
Circumstances
SECTION
4.9
Indemnity
SECTION
4.10
Increased
Costs
SECTION
4.11
Taxes
SECTION
4.12
Mitigation
Obligations; Replacement of Lenders
SECTION
4.13
Cash
Collateral
SECTION
4.14
Defaulting
Lenders
ARTICLE
V CONDITIONS OF CLOSING AND BORROWING
SECTION
5.1
Conditions to
Closing and Initial Extensions of Credit
SECTION
5.2
Conditions to All
Extensions of Credit
ARTICLE
VIREPRESENTATIONS AND WARRANTIES OF THE CREDIT
PARTIES
SECTION
6.1
Organization;
Power; Qualification
SECTION
6.2
Ownership
SECTION
6.3
Authorization;
Enforceability
SECTION
6.4
Compliance of
Agreement, Loan Documents and Borrowing with Laws,
Etc
SECTION
6.5
Compliance with
Law; Governmental Approvals
SECTION
6.6
Tax Returns and
Payments
SECTION
6.7
Intellectual
Property Matters
SECTION
6.8
Environmental
Matters
SECTION
6.9
Employee Benefit
Matters
SECTION
6.10
Margin
Stock
SECTION
6.11
Government
Regulation
SECTION
6.12
Material
Contracts
SECTION
6.13
Employee
Relations
SECTION
6.14
Financial
Statements
SECTION
6.15
No Material Adverse
Change
SECTION
6.16
Solvency
SECTION
6.17
Title to
Properties
SECTION
6.18
Litigation
SECTION
6.19
Anti-Corruption
Laws and Sanctions
SECTION
6.20
Absence of
Defaults
SECTION
6.21
Disclosure
ARTICLE
VII AFFIRMATIVE COVENANTS
SECTION
7.1
Financial
Statements and Budgets
SECTION
7.2
Certificates; Other
Reports
SECTION
7.3
Notice of Other
Matters
SECTION
7.4
Preservation of
Corporate Existence and Related Matters
SECTION
7.5
Maintenance of
Property and Licenses
SECTION
7.6
Insurance
SECTION
7.7
Accounting Methods
and Financial Records
SECTION
7.8
Payment of
Taxes
SECTION
7.9
Compliance with
Laws and Approvals
SECTION
7.10
Environmental
Laws
SECTION
7.11
Compliance with
ERISA
SECTION
7.12
Compliance with
Material Contracts
SECTION
7.13
Visits and
Inspections
SECTION
7.14
Additional
Subsidiaries
SECTION
7.15
Use of
Proceeds
SECTION
7.16
Further
Assurances
SECTION
7.17
Anti-Corruption
Laws and Sanctions
ARTICLE
VIII NEGATIVE COVENANTS
SECTION
8.1
Indebtedness
SECTION
8.2
Liens
SECTION
8.3
Investments
SECTION
8.4
Fundamental
Changes
SECTION
8.5
Asset
Dispositions
SECTION
8.6
Restricted
Payments
SECTION
8.7
Transactions with
Affiliates
SECTION
8.8
Accounting Changes;
Organizational Documents
SECTION
8.9
Payments and
Modifications of Subordinated Indebtedness
SECTION
8.10
No Further Negative
Pledges; Restrictive Agreements
SECTION
8.11
Nature of
Business
SECTION
8.12
Capital
Expenditures
SECTION
8.13
Financial
Covenants
SECTION
8.14
Disposal of
Subsidiary Interests
ARTICLE
IX DEFAULT AND REMEDIES
SECTION
9.1
Events of
Default
SECTION
9.2
Remedies
SECTION
9.3
Rights and Remedies
Cumulative; Non-Waiver; etc
SECTION
9.4
Crediting of
Payments and Proceeds
SECTION
9.5
Administrative
Agent May File Proofs of Claim
SECTION
9.6
Credit
Bidding
ARTICLE
X THE ADMINISTRATIVE AGENT
SECTION
10.1
Appointment and
Authority
SECTION
10.2
Rights as a
Lender
SECTION
10.3
Exculpatory
Provisions
SECTION
10.4
Reliance by the
Administrative Agent
SECTION
10.5
Delegation of
Duties
SECTION
10.6
Resignation of
Administrative Agent
SECTION
10.7
Non-Reliance on
Administrative Agent and Other Lenders
SECTION
10.8
No Other Duties,
etc
SECTION
10.9
Collateral and
Guaranty Matters
SECTION
10.10Secured Hedge Agreements and Secured Cash Management
Agreements
ARTICLE
XI MISCELLANEOUS
SECTION
11.1
Notices
SECTION
11.2
Amendments, Waivers
and Consents
SECTION
11.3
Expenses;
Indemnity
SECTION
11.4
Right of
Setoff
SECTION
11.5
Governing Law;
Jurisdiction, Etc
SECTION
11.6
Waiver of Jury
Trial
SECTION
11.7
Reversal of
Payments
SECTION
11.8
Injunctive
Relief
SECTION
11.9
Successors and
Assigns; Participations
SECTION
11.10 Treatment of Certain Information;
Confidentiality
SECTION
11.11 Performance of Duties
SECTION
11.12 All Powers Coupled with
Interest
SECTION
11.13 Survival
SECTION
11.14 Titles and Captions
SECTION
11.15 Severability of Provisions
SECTION
11.16Counterparts; Integration; Effectiveness; Electronic
Execution
SECTION
11.17 Term of Agreement
SECTION
11.18 USA PATRIOT Act
SECTION
11.19 Independent Effect of Covenants
SECTION
11.20 No Advisory or Fiduciary
Responsibility
SECTION
11.21 Borrower Agent
SECTION
11.22 Nature of Obligations
SECTION
11.23 Judgment Currency
SECTION
11.24 Inconsistencies with Other
Documents
SECTION
11.25 Amendment and Restatement; No
Novation
SECTION
11.26Acknowledgement and Consent to Bail-In of EEA Financial
Institutions
SECTION
11.27 Certain ERISA Matters
-1-
|
EXHIBITS
|
|
|
|
Exhibit
A-1
|
-
|
Form of
US Revolving Credit Note
|
|
Exhibit
A-2
|
-
|
Form of
Cayman Revolving Credit Note
|
|
Exhibit
A-3
|
-
|
Form of
Swingline Note
|
|
Exhibit
A-4
|
-
|
Form of
Term Loan Note
|
|
Exhibit
B
|
-
|
Form of
Notice of Borrowing
|
|
Exhibit
C
|
-
|
Form of
Notice of Account Designation
|
|
Exhibit
D
|
-
|
Form of
Notice of Prepayment
|
|
Exhibit
E
|
-
|
Form of
Notice of Conversion/Continuation
|
|
Exhibit
F
|
-
|
Form of
Officer’s Compliance Certificate
|
|
Exhibit
G
|
-
|
Form of
Assignment and Assumption
|
|
Exhibit
H-1
|
-
|
Form of
U.S. Tax Compliance Certificate (Non-Partnership Foreign
Lenders)
|
|
Exhibit
H-2
|
-
|
Form of
U.S. Tax Compliance Certificate (Non-Partnership Foreign
Participants)
|
|
Exhibit
H-3
|
-
|
Form of
U.S. Tax Compliance Certificate (Foreign Participant
Partnerships)
|
|
Exhibit
H-4
|
-
|
Form of
U.S. Tax Compliance Certificate (Foreign Lender
Partnerships)
|
|
|
||
|
SCHEDULES
|
||
|
Schedule
1.1
|
-
|
Existing
Letters of Credit
|
|
Schedule
1.1(a)
|
-
|
Initial
Term Loans, Revolving Credit Commitments and Revolving Credit
Commitment Percentages
|
|
Schedule
6.1
|
-
|
Jurisdictions
of Organization and Qualification
|
|
Schedule
6.2
|
-
|
Subsidiaries
and Capitalization
|
|
Schedule
6.6
|
-
|
Tax
Matters
|
|
Schedule
6.12
|
-
|
Material
Contracts
|
|
Schedule
6.13
|
-
|
Labor
and Collective Bargaining Agreements
|
|
Schedule
6.17
|
-
|
Real
Property
|
|
Schedule
6.18
|
-
|
Litigation
|
|
Schedule
8.1
|
-
|
Existing
Indebtedness
|
|
Schedule
8.2
|
-
|
Existing
Liens
|
|
Schedule
8.3
|
-
|
Existing
Loans, Advances and Investments
|
|
Schedule
8.7
|
-
|
Transactions
with Affiliates
|
-2-
This
SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as of January
17, 2018, is by and between 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”), as Borrowers, the lenders who are party to
this Agreement and the lenders who may become a party to this
Agreement pursuant to the terms hereof, as Lenders, and ▇▇▇▇▇ FARGO
BANK, NATIONAL ASSOCIATION, a national banking association, as
Administrative Agent for the Lenders.
STATEMENT OF PURPOSE
The
Borrowers, the lenders party thereto and the Administrative Agent
have entered into that certain ▇▇▇▇▇▇▇ and Restated Credit
Agreement, dated as of March 3, 2015 (as amended, restated,
supplemented or otherwise modified prior to the date hereof, the
“Existing Credit
Agreement”).
The
Borrowers have requested, and subject to the terms and conditions
set forth in this Agreement, the Administrative Agent and the
Lenders have agreed to amend and restate the Existing Credit
Agreement and extend certain credit facilities to the
Borrowers.
NOW,
THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto,
such parties hereby agree as follows:
ARTICLE
I
DEFINITIONS
SECTION
1.1 Definitions. The following
terms when used in this Agreement shall have the meanings assigned
to them below:
“Administrative Agent”
means ▇▇▇▇▇ Fargo, in its capacity as Administrative Agent
▇▇▇▇▇▇▇▇▇, and any successor thereto appointed pursuant to
Section 10.6.
“Administrative Agent’s
Office” means the office of the Administrative Agent
specified in or determined in accordance with the provisions of
Section 11.1(c).
“Administrative
Questionnaire” means an administrative questionnaire
in a form supplied by the Administrative Agent.
“Affiliate” means, with
respect to a specified Person, another Person that directly, or
indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person
specified.
“Agent Parties” has the
meaning assigned thereto in Section 11.1(e).
“Agreement” means this
Credit Agreement.
“Anti-Corruption
Laws” means all laws,
rules, and regulations of any jurisdiction applicable to the
Borrowers or their respective Subsidiaries from time to time concerning or relating to
bribery or corruption, including, without limitation, the
United States Foreign Corrupt Practices Act of 1977, as amended,
and the rules and regulations thereunder.
“Applicable Law” means all
applicable provisions of constitutions, laws, statutes, ordinances,
rules, treaties, regulations, permits, licenses, approvals,
interpretations and orders of courts or Governmental Authorities
and all orders and decrees of all courts and
arbitrators.
“Applicable Margin” means
the corresponding percentages per annum as set forth below based on
the Consolidated Total Leverage Ratio:
-3-
|
Pricing Level
|
Consolidated Total Leverage Ratio
|
Commitment Fee
|
LIBOR +
|
Base Rate +
|
|
I
|
Less
than 1.00 to 1.00
|
0.20%
|
1.50%
|
0.50%
|
|
II
|
Greater
than or equal to 1.00 to 1.00, but less than 1.50 to
1.00
|
0.25%
|
1.75%
|
0.75%
|
|
III
|
Greater
than or equal to 1.50 to 1.00, but less than 2.00 to
1.00
|
0.30%
|
2.00%
|
1.00%
|
|
IV
|
Greater
than or equal to 2.00 to 1.00
|
0.35%
|
2.25%
|
1.25%
|
|
|
|
|
|
|
The
Applicable Margin shall be determined and adjusted quarterly on the
date five (5) Business Days after the day on which the Parent
Borrower provides an Officer’s Compliance Certificate
pursuant to Section 7.2(a) for the
most recently ended fiscal quarter of the Parent Borrower (each
such date, a “Calculation Date”);
provided that (a)
the Applicable Margin shall be based on Pricing Level
III until the first
Calculation Date occurring after the Closing Date and, thereafter
the Pricing Level shall be determined by reference to the
Consolidated Total Leverage Ratio as of the last day of the most
recently ended fiscal quarter of the Parent Borrower preceding the
applicable Calculation Date, and (b) if the Borrower Agent fails to
provide an Officer’s Compliance Certificate when due as
required by Section 7.2(a) for the
most recently ended fiscal quarter of the Parent Borrower preceding
the applicable Calculation Date, the Applicable Margin from the
date on which such Officer’s Compliance Certificate was
required to have been delivered shall be based on Pricing Level IV
until such time as such Officer’s Compliance Certificate is
delivered, at which time the Pricing Level shall be determined by
reference to the Consolidated Total Leverage Ratio as of the last
day of the most recently ended fiscal quarter of the Parent
Borrower preceding such Calculation Date. The applicable Pricing
Level shall be effective from one Calculation Date until the next
Calculation Date. Any adjustment in the Pricing Level shall be
applicable to all Extensions of Credit then existing or
subsequently made or issued.
Notwithstanding the
foregoing, in the event that any financial statement or
Officer’s Compliance Certificate delivered pursuant to
Section 7.1 or
7.2(a) is shown to
be inaccurate (regardless of whether (i) this Agreement is in
effect, (ii) any Revolving Credit Commitments are in effect,
or (iii) any Extension of Credit is outstanding when such
inaccuracy is discovered or such financial statement or
Officer’s Compliance Certificate was delivered), and such
inaccuracy, if corrected, would have led to the application of a
higher Applicable Margin for any period (an “Applicable Period”) than
the Applicable Margin applied for such Applicable Period, then
(A) the Borrower Agent shall promptly deliver to the
Administrative Agent a corrected Officer’s Compliance
Certificate for such Applicable Period, (B) the Applicable
Margin for such Applicable Period shall be determined as if the
Consolidated Total Leverage Ratio in the corrected Officer’s
Compliance Certificate were applicable for such Applicable Period,
and (C) each Borrower shall, within two (2) Business Days of
demand thereof by the Administrative Agent, pay to the
Administrative Agent the accrued additional interest and fees owing
as a result of such increased Applicable Margin for such Applicable
Period, which payment shall be promptly applied by the
Administrative Agent in accordance with Section 4.4. Nothing in
this paragraph shall limit the rights of the Administrative Agent
and Lenders with respect to Sections 4.1(b) and
9.2 nor any of
their other rights under this Agreement or any other Loan Document.
Each Borrower’s obligations under this paragraph shall
survive the termination of the Revolving Credit Commitments and the
repayment of all other Obligations hereunder.
“Arrangers” means ▇▇▇▇▇
Fargo Securities, LLC, HSBC Bank USA, National Association and
Fifth Third Bank, each in its capacity as a joint lead arranger and
joint bookrunner.
“Asset Disposition” means
the sale, transfer, license, lease or other disposition of any
Property (including any disposition of Equity Interests and any
sale-leaseback) by any Credit Party or any Subsidiary thereof, and
any issuance of Equity Interests by any Subsidiary of the Parent
Borrower to any Person
that is not a Credit Party or any Subsidiary thereof.
“Assignment and
Assumption” means an assignment and assumption entered
into by a Lender and an Eligible Assignee (with the consent of any
party whose consent is required by Section 11.9), and
accepted by the Administrative Agent, in substantially the form
attached as Exhibit G or any other
form approved by the Administrative Agent.
-4-
“Attributable
Indebtedness” means, on any date of determination,
(a) in respect of any capital lease of any Person, the
capitalized amount thereof that would appear on a balance sheet of
such Person prepared as of such date in accordance with GAAP, and
(b) in respect of any Synthetic Lease, the capitalized amount
or principal amount of the remaining lease payments under the
relevant lease that would appear on a balance sheet of such Person
prepared as of such date in accordance with GAAP if such lease were
accounted for as a capital lease.
“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.
“Base Rate” means, at any
time, the highest of (a) the Prime Rate, (b) the Federal
Funds Rate plus
0.50% and (c) LIBOR Rate for an Interest Period of one month
plus 1%; each
change in the Base Rate shall take effect simultaneously with the
corresponding change or changes in the Prime Rate, the Federal
Funds Rate or LIBOR (provided that clause (c) shall not be
applicable during any period in which LIBOR is unavailable or
unascertainable).
“Base Rate Loan” means any
Loan bearing interest at a rate based upon the Base Rate as
provided in Section 4.1(a).
“Benefit Plan” means any
of (a) an “employee benefit plan” (as defined in ERISA)
that is subject to Title I of ERISA, (b) a “plan” as
defined in Section 4975 of the Code or (c) any Person whose assets
include (for purposes of ERISA Section 3(42) or otherwise for
purposes of Title I of ERISA or Section 4975 of the Code) the
assets of any such “employee benefit plan” or
“plan”.
“Borrower Agent” has the
meaning assigned thereto in Section 11.21.
“Borrower Materials” has
the meaning assigned thereto in Section 7.2.
“Borrowers” means,
collectively, the Parent Borrower and the Cayman
Borrower.
“Business Day” means
(a) for all purposes other than as set forth in clause (b) below, any day
other than a Saturday, Sunday or legal holiday on which banks in
San Francisco, California, Charlotte, North Carolina, the Cayman
Islands and New York, New York, are open for the conduct of their
commercial banking business and (b) with respect to all
notices and determinations in connection with, and payments of
principal and interest on, any LIBOR Rate Loan, or any Base Rate
Loan as to which the interest rate is determined by reference to
LIBOR, any day that is a Business Day described in clause (a) and that is also a
London Banking Day.
“Calculation Date” has the
meaning assigned thereto in the definition of Applicable
Margin.
“Capital Expenditures”
means, with respect to the Parent Borrower and its Subsidiaries on
a Consolidated basis, for any period, (a) the additions to
property, plant and equipment and other capital expenditures that
are (or would be) set forth in a consolidated statement of cash
flows of such Person for such period prepared in accordance with
GAAP and (b) Capital Lease Obligations during such period, but
excluding expenditures for the restoration, repair or replacement
of any fixed or capital asset which was destroyed or damaged, in
whole or in part, to the extent financed by the proceeds of an
insurance policy maintained by such Person.
“Capital Lease
Obligations” of any Person means the obligations of
such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal
property, or a combination thereof, which obligations are required
to be classified and accounted for as capital leases on a balance
sheet of such Person under GAAP, and the amount of such obligations
shall be the capitalized amount thereof determined in accordance
with GAAP.
-5-
“Cash Collateralize”
means, to pledge and deposit with, or deliver to the Administrative
Agent, or directly to the Issuing Lender, for the benefit of one or
more of the Issuing Lender, the Swingline Lender or the Lenders, as
collateral for L/C Obligations or obligations of the Lenders to
fund participations in respect of L/C Obligations or Swingline
Loans, cash or deposit account balances or, if the Administrative
Agent and the applicable Issuing Lender and the Swingline Lender
shall agree, in their sole discretion, other credit support, in
each case pursuant to documentation in form and substance
satisfactory to the Administrative Agent, the Issuing Lender and
the Swingline Lender, as applicable. “Cash Collateral” shall
have a meaning which correlates to the foregoing and shall include
the proceeds of such cash collateral and other credit
support.
“Cash Equivalents” means,
collectively, (a) marketable direct obligations issued or
unconditionally guaranteed by the United States or any agency
thereof maturing within one hundred twenty (120) days from the date
of acquisition thereof, (b) commercial paper maturing no more
than one hundred twenty (120) days from the date of creation
thereof and currently having the highest rating obtainable from
either Standard & Poor’s Financial Services LLC or
▇▇▇▇▇’▇ Investors Service, Inc., (c) certificates of
deposit maturing no more than one hundred twenty (120) days from
the date of creation thereof issued by commercial banks
incorporated under the laws of the United States, each having
combined capital, surplus and undivided profits of not less than
$500,000,000 and having a rating of “A” or better by a
nationally recognized rating agency; provided that the aggregate
amount invested in such certificates of deposit shall not at any
time exceed $5,000,000 for any one such certificate of deposit and
$10,000,000 for any one such bank, (d) time deposits maturing
no more than thirty (30) days from the date of creation thereof
with commercial banks or savings banks or savings and loan
associations each having membership either in the FDIC or the
deposits of which are insured by the FDIC and in amounts not
exceeding the maximum amounts of insurance thereunder, (e) solely
in the case of any Foreign Subsidiary, investments, instruments or
securities equivalent to those referred to in clauses (a) through
(d) of this definition denominated in any foreign currency that is
the local currency of such Foreign Subsidiary or (f) any other
investments (whether short term or long term) approved by the
Parent Borrower’s board of directors (or a committee thereof)
as part of its cash investment policy with the consent (such
consent not to be unreasonably withheld) of the Administrative
Agent.
“Cash Management
Agreement” means any agreement to provide cash
management services, including treasury, depository, overdraft,
credit or debit card (including non-card electronic payables and
purchasing cards), electronic funds transfer and other cash
management arrangements.
“Cash Management Bank”
means any Person that, (a) at the time it enters into a Cash
Management Agreement with a Credit Party, is a Lender, an Affiliate
of a Lender, the Administrative Agent or an Affiliate of the
Administrative Agent, or (b) at the time it (or its Affiliate)
becomes a Lender or the Administrative Agent (including on the
Closing Date), is a party to a Cash Management Agreement with a
Credit Party, in each case in its capacity as a party to such Cash
Management Agreement.
“Cayman Borrower” has the
meaning assigned thereto in the introductory paragraph to this
Agreement.
“Cayman Obligations”
means, in each case, whether now in existence or hereafter arising:
(a) the principal of and interest on (including interest
accruing after the filing of any bankruptcy or similar petition)
the Loans made to the Cayman Borrower under the Credit Facility and
(b) all other fees and commissions (including attorneys’
fees), charges, indebtedness, loans, liabilities, financial
accommodations, obligations, covenants and duties owing by the
Foreign Credit Parties and each of their respective Subsidiaries to
the Lenders, the Issuing Lender or the Administrative Agent, in
each case under any Loan Document, with respect to any Loan or
Letter of Credit of every kind, nature and description, direct or
indirect, absolute or contingent, due or to become due, contractual
or tortious, liquidated or unliquidated, and whether or not
evidenced by any note and including interest and fees that accrue
after the commencement by or against any Foreign Credit Party or
any Subsidiary thereof of any proceeding under any Debtor Relief
Laws, naming such Person as the debtor in such proceeding,
regardless of whether such interest and fees are allowed claims in
such proceeding.
“Change in Control” means
the occurrence of one or more of the following events or series of
events:
(a) the
Controlling Shareholder shall cease to own, beneficially and of
record, either directly or indirectly, Equity Interests in the
Parent Borrower representing more than 50% of the combined voting
power of all of Equity Interests entitled to vote for members of
the board of directors or equivalent governing body of the Parent
Borrower on a fully-diluted basis (and taking into account all such
Equity Interests that the Controlling Shareholder has the right to
acquire, whether such right is exercisable immediately or only
after the passage of time);
-6-
(b) the
Parent Borrower shall fail to control and directly own 100% of each
class of outstanding Equity Interests of the Cayman Borrower;
or
(c)
the Cayman Borrower
shall fail to control and directly own 100% of each class of
outstanding Equity Interests of Ubiquiti Hong Kong and Ubiquiti
Cayman.
“Change in Law” means the
occurrence, after the date of this Agreement, of any of the
following: (a) the adoption or taking effect of any law, rule,
regulation or treaty, (b) any change in any law, rule, regulation
or treaty or in the administration, interpretation, implementation
or application thereof by any Governmental Authority or (c) the
making or issuance of any request, rule, guideline or directive
(whether or not having the force of law) by any Governmental
Authority; provided
that notwithstanding anything herein to the contrary, (i) the
▇▇▇▇-▇▇▇▇▇ ▇▇▇▇ Street Reform and Consumer Protection Act and all
requests, rules, guidelines or directives thereunder or issued in
connection therewith and (ii) all requests, rules, guidelines or
directives promulgated by the Bank for International Settlements,
the Basel Committee on Banking Supervision (or any successor or
similar authority) or the United States or foreign regulatory
authorities, in each case pursuant to Basel III, shall in each case
be deemed to be a “Change in Law”, regardless of the
date enacted, adopted or issued.
“Closing Date” means the
date of this Agreement.
“Code” means the Internal
Revenue Code of 1986, and the rules and regulations promulgated
thereunder.
“Collateral” means the
collateral security for the Secured Obligations pledged or granted
pursuant to the Security Documents.
“Commitment Fee” has the
meaning assigned thereto in Section 4.3(a).
“Commodity Exchange Act”
means the Commodity Exchange Act (7 U.S.C. § 1 et
seq.).
“Connection Income Taxes”
means Other Connection Taxes that are imposed on or measured by net
income (however denominated) or that are franchise Taxes or branch
profits Taxes.
“Consolidated” means, when
used with reference to financial statements or financial statement
items of any Person, such statements or items on a consolidated
basis in accordance with applicable principles of consolidation
under GAAP.
“Consolidated EBITDA”
means, for any period, the sum of the following determined on a
Consolidated basis, without duplication, for the Parent Borrower
and its Subsidiaries in accordance with GAAP: (a) Consolidated
Net Income for such period plus (b) the sum of the
following, without duplication, to the extent deducted in
determining Consolidated Net Income for such period:
(i) income and franchise taxes, (ii) Consolidated
Interest Expense, (iii) amortization, depreciation and other
non-cash charges (except to the extent that such non-cash charges
are reserved for cash charges to be taken in the future),
(iv) extraordinary losses (excluding extraordinary losses from
discontinued operations) and (v) non-cash compensation charges,
including any such charges arising from stock options, restricted
stock grants or other equity-incentive programs less (c) the sum of the
following, without duplication, to the extent included in
determining Consolidated Net Income for such period: (i) interest
income, (ii) any extraordinary gains and (iii) non-cash gains or
non-cash items increasing Consolidated Net Income. For purposes of
this Agreement, Consolidated EBITDA shall be adjusted on a Pro
Forma Basis.
“Consolidated Interest
Expense” means, for any period, the sum of the
following determined on a Consolidated basis, without duplication,
for the Parent Borrower and its Subsidiaries in accordance with
GAAP, interest expense (including, without limitation, interest
expense attributable to Capital Lease Obligations and all net
payment obligations pursuant to Hedge Agreements) for such
period.
-7-
“Consolidated Net Income”
means, for any period, the net income (or loss) of the Parent
Borrower and its Subsidiaries for such period, determined on a
Consolidated basis, without duplication, in accordance with GAAP;
provided, that in
calculating Consolidated Net Income of the Parent Borrower and its
Subsidiaries for any period, there shall be excluded (a) the
net income (or loss) of any Person (other than a Subsidiary which
shall be subject to clause (c) below), in
which the Parent Borrower or any of its Subsidiaries has a joint
interest with a third party, except to the extent such net income
is actually paid in cash to the Parent Borrower or any of its
Subsidiaries by dividend or other distribution during such period,
(b) the net income (or loss) of any Person accrued prior to
the date it becomes a Subsidiary of the Parent Borrower or any of
its Subsidiaries or is merged into or consolidated with the Parent
Borrower or any of its Subsidiaries or that Person’s assets
are acquired by the Parent Borrower or any of its Subsidiaries
except to the extent included pursuant to the foregoing
clause (a),
(c) the net income (if positive), of any Subsidiary to the
extent that the declaration or payment of dividends or similar
distributions by such Subsidiary to the Parent Borrower or any of
its Subsidiaries of such net income is not at the time permitted by
operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation
applicable to such Subsidiary and (d) any gain or loss from Asset
Dispositions during such period.
“Consolidated Total
Indebtedness” means, as of any date of determination
with respect to the Parent Borrower and its Subsidiaries on a
Consolidated basis without duplication, the sum of all Indebtedness
of the Parent Borrower and its Subsidiaries (excluding all letters
of credit that are fully cash-collateralized; provided that the deduction for
all such cash-collateralized letters of credit shall not exceed
$10,000,000 in the aggregate at any time).
“Consolidated Total Leverage
Ratio” means, as of any date of determination, the
ratio of (a) Consolidated Total Indebtedness on such date to (b)
Consolidated EBITDA for the period of four (4) consecutive fiscal
quarters ending on or immediately prior to such date.
“Continuing Directors”
means the directors of the Parent Borrower on the Closing Date and
each other director of the Parent Borrower, if, in each case, such
other director’s nomination for election to the board of
directors (or equivalent governing body) of the Parent Borrower is
recommended by at least 51% of the then Continuing
Directors.
“Control” means the
possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or
otherwise. “Controlling” and
“Controlled” have meanings
correlative thereto.
“Controlling Shareholder”
means, collectively, ▇▇▇▇▇▇ ▇. ▇▇▇▇, his estate, spouse, siblings,
heirs and lineal descendants, any trust for the benefit of the
foregoing and any successor-in-interest to any of the
foregoing.
“Credit Facility” means,
collectively, the Revolving Credit Facility, the Term Loan
Facility, the Swingline Facility and the L/C Facility.
“Credit Parties” means,
collectively, the US Credit Parties and the Foreign Credit
Parties.
“Debt Issuance” means the
issuance of any Indebtedness for borrowed money by any Credit Party
or any of its Subsidiaries.
“Debtor Relief Laws” means
the Bankruptcy Code of the United States of America, and all other
liquidation, conservatorship, bankruptcy, assignment for the
benefit of creditors, moratorium, rearrangement, receivership,
insolvency, reorganization, or similar debtor relief Laws of the
United States or other applicable jurisdictions from time to time
in effect (including, without limitation, Part V of the Companies
Law (Revised) of the Cayman Islands and the Companies Winding Up
Rules 2008 (as amended) of the Cayman Islands).
“Default” means any of the
events specified in Section 9.1 which with the
passage of time, the giving of notice or any other condition, would
constitute an Event of Default.
-8-
“Defaulting Lender” means,
subject to Section 4.14(b), any
Lender that (a) has failed to (i) fund all or any portion of the
Revolving Credit Loans, any Term Loan, participations in L/C
Obligations or participations in Swingline Loans required to be
funded by it hereunder within two (2) Business Days of the date
such Loans or participations were required to be funded hereunder
unless such Lender notifies the Administrative Agent and the
Borrower Agent in writing that such failure is the result of such
Lender’s determination that one or more conditions precedent
to funding (each of which conditions precedent, together with any
applicable default, shall be specifically identified in such
writing) has not been satisfied, or (ii) pay to the Administrative
Agent, the Issuing Lender, the Swingline Lender or any other Lender
any other amount required to be paid by it hereunder (including in
respect of its participation in Letters of Credit or Swingline
Loans) within two (2) Business Days of the date when due, (b) has
notified the Borrower Agent, the Administrative Agent, the Issuing
Lender or the Swingline Lender in writing that it does not intend
to comply with its funding obligations hereunder, or has made a
public statement to that effect (unless such writing or public
statement relates to such ▇▇▇▇▇▇’s obligation to fund a Loan
hereunder and states that such position is based on such
▇▇▇▇▇▇’s determination that a condition precedent to funding
(which condition precedent, together with any applicable default,
shall be specifically identified in such writing or public
statement) cannot be satisfied), (c) has failed, within three (3)
Business Days after written request by the Administrative Agent or
the Borrower Agent, to confirm in writing to the Administrative
Agent and the Borrower Agent that it will comply with its
prospective funding obligations hereunder (provided that such Lender shall
cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such
written confirmation by the Administrative Agent and the Borrower
Agent), or (d) has, or has a direct or indirect parent company that
has, (i) become the subject of a proceeding under any Debtor Relief
Law, (ii) had appointed for it a receiver, custodian, conservator,
trustee, administrator, assignee for the benefit of creditors or
similar Person charged with reorganization or liquidation of its
business or assets, including the FDIC or any other state or
federal regulatory authority acting in such a capacity or (iii)
become the subject of a Bail-In Action; provided that a Lender shall
not be a Defaulting Lender solely by virtue of the ownership or
acquisition of any equity interest in that Lender or any direct or
indirect parent company thereof by a Governmental Authority so long
as such ownership interest does not result in or provide such
Lender with immunity from the jurisdiction of courts within the
United States or from the enforcement of judgments or writs of
attachment on its assets or permit such Lender (or such
Governmental Authority) to reject, repudiate, disavow or disaffirm
any contracts or agreements made with such Lender. Any
determination by the Administrative Agent that a Lender is a
Defaulting Lender under any one or more of clauses (a) through
(d) above shall be
conclusive and binding absent manifest error, and such Lender shall
be deemed to be a Defaulting Lender (subject to Section 4.14(b)) upon
delivery of written notice of such determination to the Borrower
Agent, the Issuing Lender, the Swingline Lender and each
Lender.
“Disqualified Equity
Interests” means any Equity Interests that, by their
terms (or by the terms of any security or other Equity Interest
into which they are convertible or for which they are exchangeable)
or upon the happening of any event or condition, (a) mature
or are mandatorily redeemable (other than solely for Qualified
Equity Interests), pursuant to a sinking fund obligation or
otherwise (except as a result of a change of control or asset sale
so long as any rights of the holders thereof upon the occurrence of
a change of control or asset sale event shall be subject to the
prior repayment in full of the Loans and all other Obligations that
are accrued and payable and the termination of the Revolving Credit
Commitments), (b) are redeemable at the option of the holder
thereof (other than solely for Qualified Equity Interests) (except
as a result of a change of control or asset sale so long as any
rights of the holders thereof upon the occurrence of a change of
control or asset sale event shall be subject to the prior repayment
in full of the Loans and all other Obligations that are accrued and
payable and the termination of the Revolving Credit Commitments),
in whole or in part, (c) provide for the scheduled payment of
dividends in cash (other than the scheduled payment of dividends on
common stock following the declaration of such dividends) or
(d) are or become convertible into or exchangeable for
Indebtedness or any other Equity Interests that would constitute
Disqualified Equity Interests, in each case, prior to the date that
is 91 days after the latest Revolving Credit Maturity Date or Term
Loan Maturity Date, as applicable, at such time; provided that if such Equity
Interests are issued pursuant to a plan for the benefit of the
Parent Borrower or its Subsidiaries or by any such plan to such
employees, such Equity Interests shall not constitute Disqualified
Equity Interests solely because they may be required to be
repurchased by the Parent Borrower or its Subsidiaries in order to
satisfy applicable statutory or regulatory
obligations.
“Dollars” or
“$”
means, unless otherwise qualified, dollars in lawful currency of
the United States.
-9-
“Domestic Subsidiary”
means any Subsidiary organized under the laws of any political
subdivision of the United States.
“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.
“Eligible Assignee” means
any Person that meets the requirements to be an assignee under
Section 11.9(b)(iii),
(v) and
(vi) (subject to
such consents, if any, as may be required under Section 11.9(b)(iii)).
“Employee Benefit Plan”
means (a) any employee benefit plan within the meaning of
Section 3(3) of ERISA that is maintained for employees of any
Credit Party or any ERISA Affiliate or (b) any Pension Plan or
Multiemployer Plan that has at any time within the preceding seven
(7) years been maintained, funded or administered for the employees
of any Credit Party or any current or former ERISA
Affiliate.
“Environmental Claims”
means any and all administrative, regulatory or judicial actions,
suits, demands, demand letters, claims, liens, accusations,
allegations, notices of noncompliance or violation, investigations
(other than internal reports prepared by any Person in the ordinary
course of business and not in response to any third party action or
request of any kind) or proceedings relating in any way to any
actual or alleged violation of or liability under any Environmental
Law or relating to any permit issued, or any approval given, under
any such Environmental Law, including, without limitation, any and
all claims by Governmental Authorities for enforcement, cleanup,
removal, response, remedial or other actions or damages,
contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from Hazardous Materials or arising
from alleged injury or threat of injury to public health or the
environment.
“Environmental Laws” means
any and all federal, foreign, state, provincial and local laws,
statutes, ordinances, codes, rules, standards and regulations,
permits, licenses, approvals, interpretations and orders of courts
or Governmental Authorities, relating to the protection of public
health or the environment, including, but not limited to,
requirements pertaining to the manufacture, processing,
distribution, use, treatment, storage, disposal, transportation,
handling, reporting, licensing, permitting, investigation or
remediation of Hazardous Materials.
“Equity Interests” means
(a) in the case of a corporation, capital stock, (b) in
the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however
designated) of capital stock, (c) in the case of an exempted
company incorporated under the laws of the Cayman Islands, shares,
(d) in the case of a partnership, partnership interests (whether
general or limited), (e) in the case of a limited liability
company, membership interests, (f) any other interest or
participation that confers on a Person the right to receive a share
of the profits and losses of, or distributions of assets of, the
issuing Person and (g) any and all warrants, rights or options
to purchase any of the foregoing.
“Equity Issuance” means
(a) any issuance by any Credit Party or any Subsidiary thereof
of shares of its Equity Interests to any Person that is not a
Credit Party (including, without limitation, in connection with the
exercise of options or warrants or the conversion of any debt
securities to equity) and (b) any capital contribution from
any Person that is not a Credit Party into any Credit Party or any
Subsidiary thereof. The term “Equity Issuance” shall
not include (A) any Asset Disposition or (B) any Debt
Issuance.
“ERISA” means the Employee
Retirement Income Security Act of 1974, and the rules and
regulations thereunder.
-10-
“ERISA Affiliate” means
any Person who together with any Credit Party or any of its
Subsidiaries is treated as a single employer within the meaning of
Section 414(b), (c), (m) or (o) of the Code or
Section 4001(b) of ERISA.
“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.
“Eurodollar Reserve
Percentage” means, for any day, the percentage which
is in effect for such day as prescribed by the Board of Governors
of the Federal Reserve System (or any successor) for determining
the maximum reserve requirement (including, without limitation, any
basic, supplemental or emergency reserves) in respect of
eurocurrency liabilities or any similar category of liabilities for
a member bank of the Federal Reserve System in New York
City.
“Event of Default” means
any of the events specified in Section 9.1; provided that any requirement
for passage of time, giving of notice, or any other condition, has
been satisfied.
“Exchange Act” means the
Securities Exchange Act of 1934.
“Excluded Swap Obligation”
means, with respect to any Credit Party, any Swap Obligation if,
and to the extent that, all or a portion of the liability of such
Credit Party for or the guarantee of such Credit Party of, or the
grant by such Credit Party of a security interest to secure, such
Swap Obligation (or any liability or guarantee thereof) is or
becomes illegal under the Commodity Exchange Act or any rule,
regulation or order of the Commodity Futures Trading Commission (or
the application or official interpretation of any thereof) by
virtue of such Credit Party’s failure for any reason to
constitute an “eligible contract participant” as
defined in the Commodity Exchange Act and the regulations
thereunder at the time the liability for or the guarantee of such
Credit Party or the grant of such security interest becomes
effective with respect to such Swap Obligation (such determination
being made after giving effect to any applicable keepwell, support
or other agreement for the benefit of the applicable Credit Party).
If a Swap Obligation arises under a master agreement governing more
than one swap, such exclusion shall apply only to the portion of
such Swap Obligation that is attributable to swaps for which such
guarantee or security interest is or becomes illegal for the
reasons identified in the immediately preceding sentence of this
definition.
“Excluded Taxes” means any
of the following Taxes imposed on or with respect to a Recipient or
required to be withheld or deducted from a payment to a Recipient,
(a) Taxes imposed on or measured by net income (however
denominated), franchise Taxes, and branch profits Taxes, in each
case, (i) imposed as a result of such Recipient being organized
under the laws of, or having its principal office or, in the case
of any Lender, its applicable Lending Office located in, the
jurisdiction imposing such Tax (or any political subdivision
thereof) or (ii) that are Other Connection Taxes, (b) in the case
of a Lender, United States federal withholding Taxes imposed on
amounts payable to or for the account of such Lender with respect
to an applicable interest in a Loan or Revolving Credit Commitment
pursuant to a law in effect on the date on which (i) such Lender
acquires such interest in the Loan or
Revolving Credit Commitment (other than pursuant to an
assignment request by the Borrowers under Section 4.12(b)) or
(ii) such Lender changes its Lending Office, except in each case to
the extent that, pursuant to Section 4.11, amounts with
respect to such Taxes were payable either to such ▇▇▇▇▇▇'s assignor
immediately before such Lender became a party hereto or to such
Lender immediately before it changed its Lending Office, (c) Taxes
attributable to such Recipient’s failure to comply with
Section 4.11(g) and (d)
any United States federal withholding
Taxes imposed under FATCA.
“Existing Credit
Agreement” has the meaning assigned thereto in the
Statement of Purpose.
“Existing Letters of
Credit” means those letters of credit existing on the
Closing Date and identified on Schedule 1.1.
-11-
“Extensions of Credit”
means, as to any Lender at any time, (a) an amount equal to
the sum of (i) the aggregate principal amount of all Revolving
Credit Loans made by such Lender then outstanding, (ii) such
▇▇▇▇▇▇’s Revolving Credit Commitment Percentage of the L/C
Obligations then outstanding, (iii) such ▇▇▇▇▇▇’s
Revolving Credit Commitment Percentage of the Swingline Loans then
outstanding and (iv) the aggregate principal amount of the Term
Loans made by such Lender then outstanding or (b) the making
of any Loan or participation in any Letter of Credit by such
▇▇▇▇▇▇, as the context requires.
“FATCA” means Sections
1471 through 1474 of the Code, as of the date of this Agreement (or
any amended or successor version that is substantively comparable
and not materially more onerous to comply with), any current or
future regulations or official interpretations thereof and any
agreements entered into pursuant to Section 1471(b)(1) of the
Code, any intergovernmental agreement entered into in connection
with the implementation of Sections 1471 and 1474 of the Code, and
any applicable laws, regulations and guidance notes implementing
the obligations imposed by Sections 1471 through 1474 of the Code
into the domestic legislative framework of the Cayman
Islands.
“FDIC” means the Federal
Deposit Insurance Corporation.
“Federal Funds Rate”
means, for any day, the rate per annum equal to the weighted
average of the rates on overnight federal funds transactions with
members of the Federal Reserve System, as published by the Federal
Reserve Bank of New York on the Business Day next succeeding such
day, provided that
if such rate is not so published for any day which is a Business
Day, such rate shall be determined based on the average of the
quotation for such day on such transactions received by the
Administrative Agent from three federal funds brokers of recognized
standing selected by the Administrative Agent. Notwithstanding the
foregoing, if the Federal Funds Rate shall be less than zero, such
rate shall be deemed to be zero for purposes of this
Agreement.
“Fiscal Year” means the
fiscal year of the Parent Borrower and its Subsidiaries ending on
June 30.
“Foreign Collateral
Agreement” means the Second Amended and Restated
Foreign Collateral Agreement dated as of the date hereof executed
by the Foreign Credit Parties (other than Ubiquiti Hong Kong) in
favor of the Administrative Agent, for the ratable benefit of the
Secured Parties.
“Foreign Credit Parties”
means, collectively, (a) the Cayman Borrower, (b) Ubiquiti Hong
Kong and (c) Ubiquiti Cayman.
“Foreign Lender” means (a)
with respect to the Parent Borrower, a Lender that is not a U.S.
Person, and (b) with respect to the Cayman Borrower, a Lender that
is resident or organized under the laws of a jurisdiction other
than that in which the Cayman Borrower is a resident for tax
purposes.
“Foreign Secured
Obligations” means, collectively, (a) the Cayman
Obligations and (b) all existing or future payment and other
obligations owing by any Foreign Credit Party under (i) any Secured
Hedge Agreement (other than any Excluded Swap Obligation) and (ii)
any Secured Cash Management Agreement. For the avoidance of doubt,
Foreign Secured Obligations shall exclude any Obligations of the US
Credit Parties.
“Foreign Subsidiary” means
any Subsidiary that is not a Domestic Subsidiary.
“Foreign Subsidiary
Holdco” means a Domestic Subsidiary whose assets
substantially consist of Equity Interests in Foreign
Subsidiaries.
“Fronting Exposure” means,
at any time there is a Defaulting Lender, (a) with respect to the
Issuing Lender, such Defaulting Lender’s Revolving Credit
Commitment Percentage of the outstanding L/C Obligations with
respect to Letters of Credit issued by the Issuing Lender, other
than such L/C Obligations as to which such Defaulting
Lender’s participation obligation has been reallocated to
other Lenders or Cash Collateralized in accordance with the terms
hereof and (b) with respect to the Swingline Lender, such
Defaulting Lender’s Revolving Credit Commitment Percentage of
outstanding Swingline Loans other than Swingline Loans as to which
such Defaulting Lender’s participation obligation has been
reallocated to other Lenders or Cash Collateralized in accordance
with the terms hereof.
-12-
“GAAP” means, at any time,
generally accepted accounting principles in the United States of
America as in effect at such time, applied in accordance with the
consistency requirements thereof.
“Governmental Approvals”
means all authorizations, consents, approvals, permits, licenses
and exemptions of, and all registrations and filings with or issued
by, any Governmental Authorities.
“Governmental Authority”
means the government of the United States or any other nation, or
of any political subdivision thereof, whether state or local, and
any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions
of or pertaining to government (including any supra-national bodies
such as the European Union or the European Central
Bank).
“Guarantee” of or by any
Person (the “guarantor”) means any
obligation, contingent or otherwise, of the guarantor guaranteeing
or having the economic effect of guaranteeing any Indebtedness or
other obligation of any other Person (the “primary obligor”) in any
manner, whether directly or indirectly, and including any
obligation of the guarantor, direct or indirect, (a) to purchase or
pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation or to purchase (or to advance
or supply funds for the purchase of) any security for the payment
thereof, (b) to purchase or lease property, securities or services
for the purpose of assuring the owner of such Indebtedness or other
obligation of the payment thereof, (c) to maintain working capital,
equity capital or any other financial statement condition or
liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation, (d) as an
applicant or issuer in respect of any letter of credit or letter of
guaranty issued to support such Indebtedness or obligation or (e)
for the purpose of assuming in any other manner the obligee in
respect of such Indebtedness or other obligation of the payment or
performance thereof or to protect such obligee against loss in
respect thereof (whether in whole or in part).
“Guarantors” means,
collectively, (a) the US Guarantors, (b) Ubiquiti Hong Kong, and
(c) Ubiquiti Cayman.
“Guaranty Agreements”
means (a) the Ubiquiti Hong Kong Guaranty, (b) the US Subsidiary
Guaranty Agreement, (c) the Ubiquiti Cayman Guaranty and (d) any
other unconditional guaranty agreement executed by any other
Guarantor for the benefit of the Secured Parties.
“Hazardous Materials”
means all pollutants, contaminants and other materials, substances
and wastes which are hazardous, toxic, caustic, harmful or
dangerous to human health or the environment, including petroleum
and petroleum products and byproducts, radioactive materials,
asbestos, polychlorinated biphenyls and all materials, substances
and wastes which are classified or regulated as
“hazardous,” “toxic” or similar
descriptions under any Environmental Law.
“Hedge Agreement” means
(a) any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity
swaps, commodity options, forward commodity contracts, equity or
equity index swaps or options, bond or bond price or bond index
swaps or options or forward bond or forward bond price or forward
bond index transactions, interest rate options, forward foreign
exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other
similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing), whether
or not any such transaction is governed by or subject to any master
agreement, and (b) any and all transactions of any kind, and
the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement
published by the International Swaps and Derivatives Association,
Inc., any International Foreign Exchange Master Agreement, or any
other master agreement.
“Hedge Bank” means any
Person that, (a) at the time it enters into a Hedge Agreement with
a Credit Party permitted under Article VIII, is a Lender, an
Affiliate of a Lender, the Administrative Agent or an Affiliate of
the Administrative Agent or (b) at the time it (or its Affiliate)
becomes a Lender or the Administrative Agent (including on the
Closing Date), is a party to a Hedge Agreement with a Credit Party,
in each case in its capacity as a party to such Hedge
Agreement.
-13-
“Hedge Termination Value”
means, in respect of any one or more Hedge Agreements, after taking
into account the effect of any legally enforceable netting
agreement relating to such Hedge Agreements, (a) for any date
on or after the date such Hedge Agreements have been closed out and
termination value(s) determined in accordance therewith, such
termination value(s), and (b) for any date prior to the date
referenced in clause (a), the amount(s) determined as the
mark-to-market value(s) for such Hedge Agreements, as determined
based upon one or more mid-market or other readily available
quotations provided by any recognized dealer in such Hedge
Agreements (which may include a Lender or any Affiliate of a
Lender).
“Hong Kong” means the Hong
Kong Special Administrative Region of the People’s Republic
of China.
“Immaterial Foreign
Subsidiaries” means all Foreign Subsidiaries that are
not Material Foreign Subsidiaries.
“Increase Effective Date”
has the meaning assigned thereto in Section 2.7(c).
“Incremental Amendment”
has the meaning assigned thereto in Section 2.7(f).
“Incremental Increases”
has the meaning assigned thereto in Section 2.7(a).
“Incremental Lender” has
the meaning assigned thereto in Section 2.7(b).
“Incremental Term Loan”
has the meaning assigned thereto in Section 2.7(a).
“Indebtedness” means, with
respect to any Person at any date and without duplication, the sum
of the following:
(a) all liabilities,
obligations and indebtedness for borrowed money including, but not
limited to, obligations evidenced by bonds, debentures, notes or
other similar instruments of any such Person;
(b) all obligations to
pay the deferred purchase price of property or services of any such
Person (including, without limitation, all obligations under
earn-out or similar agreements), except (i) trade payables arising
in the ordinary course of business not more than ninety (90) days
past due, or that are currently being contested in good faith by
appropriate proceedings and with respect to which reserves in
conformity with GAAP have been provided for on the books of such
Person and (ii) intercompany charges, payments and/or obligations
among the Credit Parties and Subsidiaries for support services,
manufacturing services, licenses, intellectual property, research
and development services, logistics services, distribution,
procurement and other similar services consistent with past
practices, in each case incurred in the ordinary course of
business;
(c) the Attributable
Indebtedness of such Person with respect to such Person’s
Capital Lease Obligations and Synthetic Leases (regardless of
whether accounted for as indebtedness under GAAP);
(d) all obligations of
such Person under conditional sale or other title retention
agreements relating to property purchased by such Person to the
extent of the value of such property (other than customary
reservations or retentions of title under agreements with suppliers
entered into in the ordinary course of business);
(e) all Indebtedness of
any other Person secured by a Lien on any asset owned or being
purchased by such Person (including Indebtedness arising under
conditional sales or other title retention agreements except trade
payables arising in the ordinary course of business), whether or
not such Indebtedness shall have been assumed by such Person or is
limited in recourse;
(f) all obligations,
contingent or otherwise, of any such Person relative to the face
amount of letters of credit, whether or not drawn, including,
without limitation, any Reimbursement Obligation, and
banker’s acceptances issued for the account of any such
Person;
-14-
(g) all obligations of
any such Person in respect of Disqualified Equity
Interests;
(h) all net obligations
of such Person under any Hedge Agreements; provided, in no event shall
obligations under any Hedge Agreement be deemed
“Indebtedness” for any calculation of the Consolidated
Total Leverage Ratio unless such obligations relate to a
transaction which has been terminated; and
(i) all Guarantees of
any such Person with respect to any of the foregoing.
For all
purposes hereof, the Indebtedness of any Person shall include the
Indebtedness of any partnership or joint venture (other than a
joint venture that is itself a corporation or limited liability
company) in which such Person is a general partner or a joint
venturer, unless such Indebtedness is expressly made non-recourse
to such Person. The amount of any net obligation under any Hedge
Agreement on any date shall be deemed to be the Hedge Termination
Value thereof as of such date.
“Indemnified Taxes” means
(a) Taxes, other than Excluded Taxes, imposed on or with respect to
any payment made by or on account of any obligation of any Credit
Party under any Loan Document and (b) to the extent not otherwise
described in clause
(a), Other Taxes.
“Indemnitee” has the
meaning assigned thereto Section 11.3(b).
“Information” has the
meaning assigned thereto in Section 11.10.
“Initial Term Loan” means
the term loan made, or to be made, to the Parent Borrower by the
Term Loan Lenders pursuant to Section 2.8. The aggregate
principal amount of the Initial Term Loan on the Closing Date shall
be $500,000,000 and the principal amount of the Initial Term Loan
amount of each Term Loan Lender as of the Closing Date is set forth
opposite the name of such Term Loan Lender on Schedule 1.1(a).
“Insurance and Condemnation
Event” means the receipt by any Credit Party or any of
its Subsidiaries of any cash insurance proceeds or condemnation
award payable by reason of theft, loss, physical destruction or
damage, taking or similar event with respect to any of their
respective Property.
“Intellectual Property”
shall have the meaning specified in the US Collateral
Agreement.
“Interest Period” means,
as to each LIBOR Rate Loan, the period commencing on the date such
LIBOR Rate Loan is disbursed or converted to or continued as a
LIBOR Rate Loan and ending on the date one (1), two (2), three (3),
or six (6) months thereafter, in each case as selected by the
Borrower Agent, on behalf of itself or the Cayman Borrower, in its
Notice of Borrowing or Notice of Conversion/Continuation and
subject to availability; provided that:
(a) the Interest Period
shall commence on the date of advance of or conversion to any LIBOR
Rate Loan and, in the case of immediately successive Interest
Periods, each successive Interest Period shall commence on the date
on which the immediately preceding Interest Period
expires;
(b) if any Interest
Period would otherwise expire on a day that is not a Business Day,
such Interest Period shall expire on the next succeeding Business
Day; provided that
if any Interest Period with respect to a LIBOR Rate Loan would
otherwise expire on a day that is not a Business Day but is a day
of the month after which no further Business Day occurs in such
month, such Interest Period shall expire on the immediately
preceding Business Day;
(c) any Interest Period
with respect to a LIBOR Rate Loan that begins on the last Business
Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of
such Interest Period) shall end on the last Business Day of the
relevant calendar month at the end of such Interest
Period;
-15-
(d) no Interest Period
shall extend beyond the Revolving Credit Maturity Date or the Term
Loan Maturity Date, as applicable, and Interest Periods shall be
selected by the Borrowers so as to permit the Borrowers to make
mandatory reductions of the Revolving Credit Commitment pursuant to
Section 2.5(b)
and the quarterly principal installment payments pursuant to
Section 2.10
without payment of any amounts pursuant to Section 4.9;
and
(e) there shall be no
more than ten (10) Interest Periods in effect at any
time.
“Investment” has the
meaning assigned thereto in Section 8.3.
“IRS” means the United
States Internal Revenue Service.
“ISP98” means the
International Standby Practices (1998 Revision, effective January
1, 1999), International Chamber of Commerce Publication No.
590.
“Issuing Lender” means
▇▇▇▇▇ Fargo, in its capacity as issuer of any Letters of Credit
hereunder, or any successor thereto.
“L/C Commitment” means the
lesser of (a) $10,000,000 and (b) the Revolving Credit
Commitment.
“L/C Facility” means the
letter of credit facility established pursuant to Article III.
“L/C Obligations” means at
any time, an amount equal to the sum of (a) the aggregate undrawn
and unexpired amount of the then outstanding Letters of Credit and
(b) the aggregate amount of drawings under Letters of Credit which
have not then been reimbursed pursuant to Section 3.5.
“L/C Participants” means
the collective reference to all the Revolving Credit Lenders other
than the Issuing Lender.
“Lender” means each Person
executing this Agreement as a Lender on the Closing Date and any
other Person that shall have become a party to this Agreement as a
Lender pursuant to an Assignment and Assumption or pursuant to
Section 2.7,
other than any Person that ceases to be a party hereto as a Lender
pursuant to an Assignment and Assumption. Unless the context
otherwise requires, the term “Lenders” includes the
Swingline Lender.
“Lending Office” means,
with respect to any Lender, the office of such Lender maintaining
such Lender’s Extensions of Credit.
“Letter of Credit
Application” means an application, in the form
specified by the Issuing Lender from time to time, requesting the
Issuing Lender to issue a Letter of Credit.
“Letters of Credit” means
the collective reference to standby letters of credit issued
pursuant to Section 3.1 and the
Existing Letters of Credit.
“LIBOR” means, subject to
the implementation of a Replacement Rate in accordance with
Section
4.8(c),
(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, or a comparable or successor quoting service
approved by the Administrative Agent consistent with market
practice, 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
-16-
(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, or a comparable or successor quoting service
approved by the Administrative Agent consistent with market
practice, 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.
Notwithstanding the
foregoing, (x) in no event shall LIBOR (including, without
limitation, any Replacement Rate with respect thereto) be less than
0% and (y) unless otherwise specified in any amendment to this
Agreement entered into in accordance with Section 4.8(c), in the event
that a Replacement Rate with respect to LIBOR is implemented then
all references herein to LIBOR shall be deemed references to such
Replacement Rate.
“LIBOR Rate” means a rate
per annum determined by the Administrative Agent pursuant to the
following formula:
|
LIBOR
Rate =
|
LIBOR
|
|
|
1.00-Eurodollar
Reserve Percentage
|
“LIBOR Rate Loan” means
any Loan bearing interest at a rate based upon the LIBOR Rate as
provided in Section 4.1(a).
“Lien” means, with respect
to any asset, any mortgage, leasehold mortgage, lien, pledge,
charge, security interest, hypothecation or encumbrance of any kind
in respect of such asset. For the purposes of this Agreement, a
Person shall be deemed to own subject to a Lien any asset which it
has acquired or holds subject to the interest of a vendor or lessor
under any conditional sale agreement, Capital Lease Obligation or
other title retention agreement relating to such
asset.
“Liquidity” means, as of
any date of determination, the sum of (a) all Unrestricted cash and
Cash Equivalents of the Credit Parties and (b) the principal amount
that the Borrowers are permitted to draw under the Revolving Credit
Facility (not to exceed $50,000,000) on such date. For purposes
hereof, “Unrestricted” means that
such cash and Cash Equivalents (i) do not appear or would not be
required to appear as “restricted” on the financial
statements of the Parent Borrower or any such Subsidiary (unless
related to the Loan Documents or the Liens created thereunder),
(ii) are not subject to a Lien (other than Liens permitted under
Section 8.2(a) or
(j)) in favor of
any Person other than the Administrative Agent under the Loan
Documents, (iii) are not prohibited from being used by the Parent
Borrower and its Subsidiaries for the payment of the Obligations
and (iv) are not being held as cash collateral for any Indebtedness
or other obligations (other than cash and Cash Equivalents
constituting Collateral for the Obligations) or to Cash
Collateralize outstanding letters of credit under the terms of this
Agreement.
“Loan Documents” means,
collectively, this Agreement, each Note, the Letter of Credit
Applications, the Security Documents, the Guaranty Agreements and
each other document, instrument, certificate and agreement executed
and delivered by the Credit Parties or any of their respective
Subsidiaries in favor of or provided to the Administrative Agent or
any Secured Party in connection with this Agreement or otherwise
referred to herein or contemplated hereby (excluding any Secured
Hedge Agreement and any Secured Cash Management
Agreement).
“Loans” means the
collective reference to the Revolving Credit Loans, the Term Loans
and the Swingline Loans, and “Loan” means any of such
Loans.
“London Banking Day” means
any day on which dealings in Dollar deposits are conducted by and
between banks in the London interbank Eurodollar
market.
-17-
“Material Adverse Effect”
means, with respect to the Parent Borrower and its Subsidiaries,
(a) a material adverse change in, or a material adverse effect on,
the operations, business, assets, properties, liabilities (actual
or contingent) or financial condition of the Parent Borrower and
its Subsidiaries, taken as a whole, (b) a material impairment of
the ability of any Credit Party to perform its obligations under
the Loan Documents to which it is a party, (c) a material adverse
effect on the rights and remedies of the Administrative Agent or
the Lenders under any Loan Document or (d) a material adverse
effect on the legality, validity, binding effect or enforceability
against any Credit Party of any Loan Document to which it is a
party.
“Material Contract” means
(a) any contract or agreement, written or oral, of any Credit
Party or any of its Subsidiaries involving monetary liability of or
to any such Person in an amount in excess of $25,000,000 per annum
or (b) any other contract or agreement, written or oral, of
any Credit Party or any of its Subsidiaries, the breach,
non-performance, cancellation or failure to renew of which could
reasonably be expected to have a Material Adverse Effect; provided
that any contract or agreement solely among the Credit Parties and
the Subsidiaries shall not be a “Material Contract”
hereunder.
“Material First-Tier Foreign
Subsidiary” means any Material Foreign Subsidiary that
is directly owned by a US Credit Party.
“Material Foreign
Subsidiary” means (a) the Cayman Borrower, (b)
Ubiquiti Hong Kong, (c) Ubiquiti Cayman, (d) any Foreign Subsidiary
or Foreign Subsidiary Holdco with assets or revenues that exceed 5%
of the Consolidated assets or revenues of the Parent Borrower and
its Subsidiaries, determined as of the end of the most recent
Fiscal Year for which financial statements have been delivered and
recalculated at the end of each Fiscal Year thereafter and (e) any
Foreign Subsidiary required to be designated as a Material Foreign
Subsidiary pursuant to Section 7.14(d). On the
Closing Date, Foreign Subsidiaries organized in India, Lithuania,
Poland, China, Latvia, Canada, Czech Republic and Ukraine do not
meet the requirement set forth above and are not Material Foreign
Subsidiaries.
“Minimum Collateral
Amount” means, at any time, (a) with respect to Cash
Collateral consisting of cash or deposit account balances, an
amount equal to 105% of the sum of (i) the Fronting Exposure of the
Issuing Lender with respect to Letters of Credit issued and
outstanding at such time and (ii) the Fronting Exposure of the
Swingline Lender with respect to all Swingline Loans outstanding at
such time and (b) otherwise, an amount reasonably determined by the
Administrative Agent and the Issuing Lender that is entitled to
Cash Collateral hereunder at such time in their sole
discretion.
“Multiemployer Plan” means
a “multiemployer plan” as defined in
Section 4001(a)(3) of ERISA to which any Credit Party or any
ERISA Affiliate is making, or is accruing an obligation to make, or
has accrued an obligation to make contributions within the
preceding seven (7) years.
“Net Cash Proceeds” means,
as applicable, (a) with respect to any Asset Disposition or
Insurance and Condemnation Event, the gross proceeds received by
any Credit Party or any of its Subsidiaries therefrom (including
any cash, Cash Equivalents, deferred payment pursuant to, or by
monetization of, a note receivable or otherwise, as and when
received) less the
sum of (i) in the case of an Asset Disposition, all income
taxes and other taxes assessed by, or reasonably estimated to be
payable to, a Governmental Authority as a result of such
transaction (provided that if such estimated taxes exceed the
amount of actual taxes required to be paid in cash in respect of
such Asset Disposition, the amount of such excess shall constitute
Net Cash Proceeds), (ii) all reasonable out-of-pocket fees and
expenses incurred in connection with such transaction or event,
(iii) the principal amount of, premium, if any, and interest
on any Indebtedness secured by a Lien on the asset (or a portion
thereof) disposed of, which Indebtedness is required to be repaid
in connection with such transaction or event, and (b) with
respect to any Equity Issuance or Debt Issuance, the gross cash
proceeds received by any Credit Party or any of its Subsidiaries
therefrom less (i)
all reasonable out-of-pocket legal, underwriting and other fees and
expenses incurred in connection therewith and (ii) all income taxes
and other taxes assessed by, or reasonably estimated to be payable
to, a Governmental Authority as a result of such
transaction.
“Non-Consenting Lender”
means any Lender that does not approve any consent, waiver,
amendment, modification or termination that (i) requires the
approval of all Lenders or all affected Lenders in accordance with
the terms of Section 11.2 and (ii) has
been approved by the Required Lenders.
-18-
“Non-Credit Party” means
any Subsidiary of the Parent Borrower that is not a Credit
Party.
“Non-Defaulting Lender”
means, at any time, each Lender that is not a Defaulting Lender at
such time.
“Notes” means the
collective reference to the Revolving Credit Notes, the Swingline
Note and the Term Loan Notes.
“Notice of Account
Designation” has the meaning assigned thereto in
Section 2.3(b).
“Notice of Borrowing” has
the meaning assigned thereto in Section 2.3(a).
“Notice of
Conversion/Continuation” has the meaning assigned
thereto in Section 4.2.
“Notice of Prepayment” has
the meaning assigned thereto in Section 2.4(c).
“Obligations” means,
collectively, the US Obligations and the Cayman
Obligations.
“OFAC” means the U.S.
Department of the Treasury’s Office of Foreign Assets
Control.
“Officer’s Compliance
Certificate” means a certificate of the chief
financial officer, the chief accounting officer or the controller
of the Parent Borrower substantially in the form attached as
Exhibit
F.
“Operating Lease” means,
as to any Person as determined in accordance with GAAP, any lease
of Property (whether real, personal or mixed) by such Person as
lessee which is not a capital lease.
“Other Connection Taxes”
means, with respect to any Recipient, Taxes imposed as a result of
a present or former connection between such Recipient and the
jurisdiction imposing such Tax (other than connections arising from
such Recipient having executed, delivered, become a party to,
performed its obligations under, received payments under, received
or perfected a security interest under, engaged in any other
transaction pursuant to or enforced any Loan Document, or sold or
assigned an interest in any Loan or Loan Document).
“Other Taxes” means all
present or future stamp, court, documentary, intangible, recording,
filing or similar Taxes that arise from any payment made under,
from the execution, delivery, performance, enforcement or
registration of, from the receipt or perfection of a security
interest under, or otherwise with respect to, any Loan Document,
except any such Taxes that are Other Connection Taxes imposed with
respect to an assignment (other than an assignment made pursuant to
Section 4.12).
“Parent Borrower” has the
meaning assigned thereto in the introductory paragraph to this
Agreement.
“Participant” has the
meaning assigned thereto in Section 11.9(d).
“Participant Register” has
the meaning assigned thereto in Section 11.9(d).
“PATRIOT Act” means the
USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law
October 26, 2001)).
“PBGC” means the Pension
Benefit Guaranty Corporation or any successor agency.
“Pension Plan” means any
Employee Benefit Plan, other than a Multiemployer Plan, which is
subject to the provisions of Title IV of ERISA or Section 412
of the Code and which (a) is maintained, funded or
administered for the employees of any Credit Party or any ERISA
Affiliate or (b) has at any time within the preceding seven
(7) years been maintained, funded or administered for the employees
of any Credit Party or any current or former ERISA
Affiliates.
-19-
“Permitted Acquisition”
means any acquisition by the Parent Borrower or any Subsidiary in
the form of the acquisition of all or substantially all of the
assets, business or a line of business, or at least a majority of
the outstanding Equity Interests which have the ordinary voting
power for the election of directors of the board of directors (or
equivalent governing body) (whether through purchase, merger or
otherwise), of any other Person if each such acquisition meets all
of the following requirements:
(a) such acquisition
shall be completed on a non-hostile basis;
(b) the Person or
business to be acquired shall be in a line of business permitted
pursuant to Section 8.11;
(c) if such transaction
is a merger or consolidation involving a Borrower, such Borrower
shall be the surviving Person;
(d) if such transaction
is a merger or consolidation involving a Guarantor, a Guarantor (or
a Person that will become a Guarantor upon such merger or
consolidation) shall be the surviving Person;
(e) no later than ten
(10) Business Days prior to the proposed closing date of such
acquisition (or such shorter period as may be agreed to by the
Administrative Agent), the Parent Borrower shall have delivered to
the Administrative Agent an Officer’s Compliance Certificate
for the most recent fiscal quarter end preceding such acquisition
for which financial statements are available demonstrating, in form
and substance reasonably satisfactory to the Administrative
Agent, that the Parent Borrower is in compliance on a Pro
Forma Basis (as of the date of the acquisition and after giving
effect thereto and any Indebtedness incurred in connection
therewith) with (i) Section 8.13(b) and (ii) a
Consolidated Total Leverage Ratio no greater than 3.00 to
1.00;
(f) no later than ten
(10) Business Days after the proposed closing date of such
acquisition the Parent Borrower (or such longer period as may be
agreed to by the Administrative Agent), to the extent requested by
the Administrative Agent, shall have delivered to the
Administrative Agent promptly upon the finalization thereof copies
of substantially final documentation delivered in connection
therewith;
(g) no Default or Event
of Default shall have occurred and be continuing both before and
after giving effect to such acquisition; and
(h) the Administrative
Agent and the Required Lenders shall have provided their written
consent prior to the consummation of such acquisition if the
aggregate amount of the purchase price, including, but not limited
to, any assumed debt, earn-outs (valued at the maximum amount
payable thereunder), deferred payments, or Equity Interests of a
Borrower, to be paid in cash on a singular basis in connection with
such acquisition (or series of related acquisitions), together with
all other acquisitions consummated during the term of this
Agreement exceeds $100,000,000 in the aggregate (excluding any
portion of the acquisitions paid from any Equity
Issuance).
“Permitted Liens” means
the Liens permitted pursuant to Section 8.2.
“Person” means any natural
person, corporation, limited liability company, trust, joint
venture, association, company, partnership, Governmental Authority
or other entity.
“Platform” has the meaning
assigned thereto in Section 7.2.
“Prime Rate” means, at any
time, the rate of interest per annum publicly announced from time
to time by the Administrative Agent as its prime rate. Each change
in the Prime Rate shall be effective as of the opening of business
on the day such change in such prime rate occurs. The parties
hereto acknowledge that the rate announced publicly by the
Administrative Agent as its prime rate is an index or base rate and
shall not necessarily be its lowest or best rate charged to its
customers or other banks.
-20-
“Pro Forma Basis” means,
for purposes of calculating Consolidated EBITDA for any period
during which one or more Specified Transactions occurs, that such
Specified Transaction (and all other Specified Transactions that
have been consummated during the applicable period) shall be deemed
to have occurred as of the first day of the applicable period of
measurement (a) excluding all income statement items (whether
positive or negative) attributable to the Property or Person that
are subject to any such Specified Disposition made during such
period, (b) including all income statement items (whether
positive or negative) attributable to the Property or Person
acquired pursuant to any such Permitted Acquisition (provided that
such income statement items to be included are reflected in
financial statements or other financial data reasonably acceptable
to the Administrative Agent and based upon reasonable assumptions
and calculations which are expected to have a continuous impact)
and (c) without duplication of any other adjustments already
included in clause (b) above or in the calculation of Consolidated
EBITDA for such period, after giving effect to the pro forma
adjustments with respect to such transaction; provided that in each case any
such pro forma adjustments (i) are reasonably expected to be
realized within twelve (12) months of such transaction as set forth
in reasonable detail on a certificate of a Responsible Officer of
the Parent Borrower delivered to the Administrative Agent and (ii)
are calculated on a basis consistent with GAAP and Regulation S-X
of the Exchange Act of 1934 (including with respect to pro forma
adjustments for public company costs in connection with the
Acquisition of any public company) and (iii) represent less than
10% of Consolidated EBITDA (determined without giving effect to
this clause (iii)).
For purposes of this definition, “Specified Disposition”
means any disposition of all or substantially all of the assets or
Equity Interests of any Subsidiary of the Parent Borrower or any
division, business unit, product line or line of business and
“Specified
Transaction” means (x) any Specified Disposition
and (y) any Permitted Acquisition.
“Property” means any right
or interest in or to property of any kind whatsoever, whether real,
personal or mixed and whether tangible or intangible, including,
without limitation, Equity Interests.
“PTE” means a prohibited
transaction class exemption issued by the U.S. Department of Labor,
as any such exemption may be amended from time to
time.
“Public Lenders” has the
meaning assigned thereto in Section 7.2.
“Qualified Equity
Interests” means any Equity Interests that are not
Disqualified Equity Interests.
“Recipient” means (a) the
Administrative Agent, (b) any Lender and (c) the Issuing Lender, as
applicable.
“Register” has the meaning
assigned thereto in Section 11.9(c).
“Reimbursement Obligation”
means the obligation of the Parent Borrower to reimburse the
Issuing Lender pursuant to Section 3.5 for amounts
drawn under Letters of Credit.
“Related Parties” means,
with respect to any Person, such Person’s Affiliates and the
partners, directors, officers, employees, agents, advisors and
representatives of such Person and of such Person’s
Affiliates.
“Replacement Rate” has the
meaning assigned thereto in Section 4.8(c).
“Required Lenders” means,
at any date, any combination of two or more Lenders having Total
Credit Exposures representing more than fifty percent (50%) of the
Total Credit Exposures of all Lenders or, if the Revolving Credit Commitments have been
terminated, any combination of two or more Lenders holding more
than fifty percent (50%) of the Revolving Credit Exposure and
outstanding Term Loans at such time. The Total Credit Exposure of
any Defaulting Lender shall be disregarded in determining Required
Lenders at any time.
“Required Revolving Credit
Lenders” means, at any date, any combination of
Revolving Credit Lenders holding more than fifty percent (50%) of
the sum of the aggregate amount of the Revolving Credit Commitment
or, if the Revolving Credit Commitment has been terminated, any
combination of Revolving Credit Lenders holding more than fifty
percent (50%) of the aggregate Extensions of Credit under the
Revolving Credit Facility; provided that the Revolving
Credit Commitment of, and the portion of the Extensions of Credit
under the Revolving Credit Facility, as applicable, held or deemed
held by, any Defaulting Lender shall be excluded for purposes of
making a determination of Required Revolving Credit
Lenders.
-21-
“Responsible Officer”
means, as to any Person, the chief executive officer, president,
chief financial officer, chief accounting officer, director,
controller, vice president, treasurer or assistant treasurer of
such Person or any other officer of such Person designated in
writing by the applicable Borrower and reasonably acceptable to the
Administrative Agent. Any document delivered hereunder or under any
other Loan Document that is signed by a Responsible Officer of a
Person shall be conclusively presumed to have been authorized by
all necessary corporate, limited liability company, partnership
and/or other action on the part of such Person and such Responsible
Officer shall be conclusively presumed to have acted on behalf of
such Person.
“Restricted Payment” has
the meaning assigned thereto in Section 8.6.
“Revolving Credit
Commitment” means (a) as to any Revolving Credit
Lender, the obligation of such Revolving Credit Lender to make
Revolving Credit Loans to, and to purchase participations in L/C
Obligations and Swingline Loans for the account of, the applicable
Borrower hereunder in an aggregate principal amount at any time
outstanding not to exceed the amount set forth opposite such
Revolving Credit Lender’s name on the Register, as such
amount may be modified at any time or from time to time pursuant to
the terms hereof (including, without limitation, Section 2.7) and (b) as to
all Revolving Credit Lenders, the aggregate commitment of all
Revolving Credit Lenders to make Revolving Credit Loans, as such
amount may be modified at any time or from time to time pursuant to
the terms hereof. The aggregate Revolving Credit Commitment of all
the Revolving Credit Lenders on the Closing Date shall be
$400,000,000. The initial Revolving Credit Commitment of each
Revolving Credit Lender on the Closing Date is set forth opposite
the name of such Revolving Credit Lender on Schedule 1.1(a).
“Revolving Credit Commitment
Percentage” means, with respect to any Revolving
Credit Lender at any time, the percentage of the total Revolving
Credit Commitments of all the Revolving Credit Lenders represented
by such Revolving Credit ▇▇▇▇▇▇’s Revolving Credit
Commitment. If the Revolving Credit Commitments have terminated or
expired, the Revolving Credit Commitment Percentages shall be
determined based upon the Revolving Credit Commitments most
recently in effect, giving effect to any assignments. The initial
Revolving Credit Commitment Percentage of each Revolving Credit
Lender on the Closing Date is set forth opposite the name of such
Revolving Credit Lender on Schedule 1.1(a).
“Revolving Credit
Exposure” means, as to any Revolving Credit Lender at
any time, the aggregate principal amount at such time of its
outstanding Revolving Credit Loans and such Revolving Credit
Lender’s participation in L/C Obligations and Swingline Loans
at such time.
“Revolving Credit
Facility” means the revolving credit facility
established pursuant to Article II (including any
increase in such revolving credit facility established pursuant to
Section
2.7).
“Revolving Credit Facility
Increase” has the meaning assigned thereto in
Section 2.7(a).
“Revolving Credit Lender”
means a Lender with a Revolving Credit Commitment.
“Revolving Credit Loan”
means any revolving loan made to the Borrowers pursuant to
Section 2.1,
including any Revolving Credit Facility Increases, and all such
revolving loans collectively as the context requires.
“Revolving Credit Maturity
Date” means the earliest to occur of (a) January
17, 2023, (b) the date of termination of the entire Revolving
Credit Commitment by the Borrowers pursuant to Section 2.5, or
(c) the date of termination of the Revolving Credit Commitment
pursuant to Section 9.2(a).
“Revolving Credit Note”
means a promissory note made by the Borrowers in favor of a
Revolving Credit Lender evidencing the Revolving Credit Loans made
by such Revolving Credit Lender, (i) for the Parent Borrower,
substantially in the form attached as Exhibit A-1 and (ii) for the
Cayman Borrower, substantially in the form attached as Exhibit A-2, and, in each case,
any substitutes therefor, and any replacements, restatements,
renewals or extension thereof, in whole or in part.
-22-
“Revolving Credit
Outstandings” means the sum of (a) with respect to
Revolving Credit Loans and Swingline Loans on any date, the
aggregate outstanding principal amount thereof after giving effect
to any borrowings and prepayments or repayments of Revolving Credit
Loans and Swingline Loans, as the case may be, occurring on such
date; plus
(b) with respect to any L/C Obligations on any date, the
aggregate outstanding amount thereof on such date after giving
effect to the issuance of or drawing under any Letters of Credit
occurring on such date and any other changes in the aggregate
amount of the L/C Obligations as of such date, including as a
result of any reimbursements of outstanding unpaid drawings under
any Letters of Credit or any reductions in the maximum amount
available for drawing under Letters of Credit taking effect on such
date.
“Sanctions” means economic
or financial sanctions or trade embargoes imposed, administered or
enforced from time to time by the U.S. government (including those
administered by OFAC), the European Union, Her Majesty’s
Treasury, the United Nations Security Council or other relevant
sanctions authority.
“Sanctioned Country” means
at any time, a country or territory which is itself the subject or
target of any Sanctions (including, without limitation, Cuba, Iran,
North Korea, Sudan, Syria and the Crimea region).
“Sanctioned
Person” means, at any
time, (a) any Person listed in any Sanctions-related list of
designated Persons maintained by OFAC, the U.S. Department of
State, the United Nations Security Council, the European Union, Her
Majesty’s Treasury, or other relevant sanctions authority,
(b) any Person operating,
organized or resident in a Sanctioned
Country or (c) any Person owned or controlled by any such Person or
Persons described in clauses (a) and (b).
“SEC” means the Securities
and Exchange Commission, or any Governmental Authority succeeding
to any of its principal functions.
“Secured Cash Management
Agreement” means any Cash Management Agreement between
or among any Credit Party and any Cash Management
Bank.
“Secured Hedge Agreement”
means any Hedge Agreement between or among any Credit Party and any
Hedge Bank.
“Secured Obligations”
means, collectively, (a) the Obligations and (b) all existing or
future payment and other obligations owing by any Credit Party
under (i) any Secured Hedge Agreement (other than an Excluded Swap
Obligation) and (ii) any Secured Cash Management Agreement;
provided that the
“Secured Obligations” of a Credit Party shall exclude
any Excluded Swap Obligations with respect to such Credit
Party.
“Secured Parties” means,
collectively, the Administrative Agent, the Lenders, the Issuing
Lender, the Swingline Lender, the Hedge Banks, the Cash Management
Banks, each co-agent or sub-agent appointed by the Administrative
Agent from time to time pursuant to Section 10.5, any other
holder from time to time of any of any Secured Obligations and, in
each case, their respective successors and permitted
assigns.
“Security Documents” means
the collective reference to the US Collateral Agreement, the
Foreign Collateral Agreement, the Ubiquiti Hong Kong Share
Mortgage, the Ubiquiti International Cayman Share Charge, the
Ubiquiti Cayman Share Charge, the Ubiquiti Hong Kong Charge over
Accounts and each other agreement or writing pursuant to which any
Credit Party pledges or grants a security interest in any Property
or assets securing any Secured Obligations or Foreign Secured
Obligations, as applicable.
“Solvent” and
“Solvency” mean, with
respect to any Person on any date of determination, that on such
date (a) the fair value of the property of such Person is
greater than the total amount of liabilities, including contingent
liabilities, of such Person, (b) the present fair salable
value of the assets of such Person is not less than the amount that
will be required to pay the probable liability of such Person on
its debts as they become absolute and matured, (c) such Person
does not intend to, and does not believe that it will, incur debts
or liabilities beyond such Person’s ability to pay such debts
and liabilities as they mature, (d) such Person is not engaged
in business or a transaction, and is not about to engage in
business or a transaction, for which such Person’s property
would constitute an unreasonably small capital, and (e) such
Person is able to pay its debts and liabilities, contingent
obligations and other commitments as they mature in the ordinary
course of business. The amount of contingent liabilities at any
time shall be computed as the amount that, in the light of all the
facts and circumstances existing at such time, represents the
amount that can reasonably be expected to become an actual or
matured liability.
-23-
“Subordinated
Indebtedness” means the collective reference to any
Indebtedness incurred by the Parent Borrower or any of its
Subsidiaries that is subordinated in right and time of payment to
the Obligations on terms and conditions reasonably satisfactory to
the Administrative Agent.
“Subsidiary” means as to
any Person, any corporation, partnership, limited liability company
or other entity of which more than fifty percent (50%) of the
outstanding Equity Interests having ordinary voting power to elect
a majority of the board of directors (or equivalent governing body)
or other managers of such corporation, partnership, limited
liability company or other entity is at the time owned by (directly
or indirectly) or the management is otherwise controlled by
(directly or indirectly) such Person (irrespective of whether, at
the time, Equity Interests of any other class or classes of such
corporation, partnership, limited liability company or other entity
shall have or might have voting power by reason of the happening of
any contingency). Unless otherwise qualified, references to
“Subsidiary” or “Subsidiaries” herein shall
refer to those of the Parent Borrower.
“Swap Obligation” means,
with respect to any Credit Party, any obligation to pay or perform
under any agreement, contract or transaction that constitutes a
“swap” within the meaning of section 1a(47) of the
Commodity Exchange Act.
“Swingline Commitment”
means the lesser of (a) $25,000,000 and (b) the Revolving
Credit Commitment.
“Swingline Facility” means
the swingline facility established pursuant to Section 2.2.
“Swingline Lender” means
▇▇▇▇▇ Fargo, in its capacity as swingline lender hereunder or any
successor thereto.
“Swingline Loan” means any
swingline loan made by the Swingline Lender to the Parent Borrower
pursuant to Section 2.2, and all such
swingline loans collectively as the context requires.
“Swingline Note” means a
promissory note made by the Parent Borrower in favor of the
Swingline Lender evidencing the Swingline Loans made by the
Swingline Lender, substantially in the form attached as
Exhibit A-3,
and any substitutes therefor, and any replacements, restatements,
renewals or extension thereof, in whole or in part.
“Synthetic Lease” means
any synthetic lease, tax retention operating lease, off-balance
sheet loan or similar off-balance sheet financing product where
such transaction is considered borrowed money indebtedness for tax
purposes but is classified as an Operating Lease in accordance with
GAAP.
“Taxes” means all present
or future taxes, levies, imposts, duties, deductions, withholdings
(including backup withholding), assessments, fees or other charges
imposed by any Governmental Authority, including any interest,
additions to tax or penalties applicable thereto.
“Term Loan Facility” means
the term loan facility established pursuant to Article II (including any
Incremental Term Loans established pursuant to Section 2.7).
“Term Loan Lender” means
any Lender holding outstanding Term Loans.
“Term Loan Maturity Date”
means (a) with regard to the Initial Term Loans, the first to occur
of (i) January 17, 2023, and (ii) the date of acceleration of
the Obligations pursuant to Section 9.2(a) and (b)
with regard to any Incremental Term Loan, the earlier of (i) the
maturity date thereof as determined by the applicable Lenders
pursuant to Section
2.7(f) and (ii) the acceleration of the Obligations pursuant
to Section
9.2(a).
“Term Loan Note” means a
promissory note made by the Parent Borrower in favor of a Term Loan
Lender evidencing the portion of the Term Loans made by such Term
Loan Lender, substantially in the form attached as Exhibit A-4, and any
substitutes therefor, and any replacements, restatements, renewals
or extension thereof, in whole or in part.
“Term Loans” means the
Initial Term Loans and any Incremental Term Loan, and
“Term
Loan” means any of such Term Loans.
-24-
“Termination Event” means
the occurrence of any of the following which, individually or in
the aggregate, has resulted or could reasonably be expected to
result in liability of the Borrowers in an aggregate amount in
excess of the Threshold Amount: (a) a “Reportable
Event” described in Section 4043 of ERISA for which the
thirty (30) day notice requirement has not been waived by the PBGC,
or (b) the withdrawal of any Credit Party or any ERISA
Affiliate from a Pension Plan during a plan year in which it was a
“substantial employer” as defined in
Section 4001(a)(2) of ERISA or a cessation of operations that
is treated as such a withdrawal under Section 4062(e) of
ERISA, or (c) the termination of a Pension Plan, the filing of
a notice of intent to terminate a Pension Plan or the treatment of
a Pension Plan amendment as a termination, under Section 4041
of ERISA, if the plan assets are not sufficient to pay all plan
liabilities, or (d) the institution of proceedings to
terminate, or the appointment of a trustee with respect to, any
Pension Plan by the PBGC, or (e) any other event or condition
which would constitute grounds under Section 4042(a) of ERISA
for the termination of, or the appointment of a trustee to
administer, any Pension Plan, or (f) the imposition of a Lien
pursuant to Section 430(k) of the Code or Section 303 of
ERISA, or (g) the determination that any Pension Plan or
Multiemployer Plan is considered an at-risk plan or plan in
endangered or critical status with the meaning of Sections 430, 431
or 432 of the Code or Sections 303, 304 or 305 of ERISA or
(h) the partial or complete withdrawal of any Credit Party or
any ERISA Affiliate from a Multiemployer Plan if withdrawal
liability is asserted by such plan, or (i) any event or
condition which results in the reorganization or insolvency of a
Multiemployer Plan under Sections 4241 or 4245 of ERISA, or
(j) any event or condition which results in the termination of
a Multiemployer Plan under Section 4041A of ERISA or the
institution by PBGC of proceedings to terminate a Multiemployer
Plan under Section 4042 of ERISA, or (k) the imposition of any
liability under Title IV of ERISA, other than for PBGC premiums due
but not delinquent under Section 4007 of ERISA, upon any
Credit Party or any ERISA Affiliate.
“Threshold Amount” means
$25,000,000.
“Total Credit Exposure”
means, as to any Lender at any time, the unused Revolving Credit Commitments, Revolving
Credit Exposure and outstanding Term Loans of such Lender at such
time.
“Transactions” means,
collectively, (a) the refinancing of all Indebtedness
outstanding under the Existing Credit Agreement, (b) the
initial Extensions of Credit and (c) the payment of costs and
expenses incurred in connection with the foregoing.
“Ubiquiti Cayman” means
Ubiquiti Cayman Limited, an exempted company incorporated under the
laws of the Cayman Islands.
“Ubiquiti Cayman Guaranty”
means the Second Amended and Restated Cayman Subsidiary Guaranty
Agreement dated as of the date hereof, executed by ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
in favor of the Administrative Agent, for the ratable benefit of
the Secured Parties.
“Ubiquiti Cayman Share
Charge” means the equitable charge over shares dated
as of May 5, 2014, pursuant to which the Administrative Agent, for
the benefit of the Secured Parties, is granted a security interest
(or the equivalent under Cayman Islands law) in one-hundred percent
(100%) of the Equity Interests of Ubiquiti Cayman.
“Ubiquiti Hong Kong” means
Ubiquiti Networks International Limited, a company formed under the
laws of Hong Kong.
“Ubiquiti Hong Kong
Guaranty” means the unconditional guarantee and
indemnity governed by the laws of Hong Kong dated as of May 5, 2014
executed by Ubiquiti Hong Kong in favor of the Administrative
Agent, for the ratable benefit of the Secured Parties.
-25-
“Ubiquiti Hong Kong Share
Mortgage” means the share mortgage governed by the
laws of Hong Kong dated as of May 5, 2014 executed by the Cayman
Borrower in favor of the Administrative Agent, pursuant to which
the Administrative Agent, for the benefit of the Secured Parties,
is granted a security interest (or the equivalent under Hong Kong
law) in one-hundred percent (100%) of the Equity Interests of
Ubiquiti Hong Kong.
“Ubiquiti Hong Kong Charge over
Accounts” means the charge over accounts and
securities governed by the laws of Hong Kong dated as of May 5,
2014 executed by Ubiquiti Hong Kong in favor of the Administrative
Agent pursuant to which the Administrative Agent, for the benefit
of the Secured Parties, is granted a security interest (or the
equivalent under Hong Kong law) in all deposit accounts, securities
accounts and similar accounts and all cash and cash equivalents
held therein.
“Ubiquiti International Cayman Share
Charge” means the equitable charge over shares dated
as of May 5, 2014, pursuant to which the Administrative Agent, for
the benefit of the Secured Parties, is granted a security interest
(or the equivalent under Cayman Islands law) in sixty-five percent
(65%) of the Equity Interests of the Cayman Borrower.
“UCC” means the Uniform
Commercial Code as in effect in the State of New York.
“United States” means the
United States of America.
“US Collateral Agreement”
means the Second Amended and Restated US Collateral Agreement dated
as of the date hereof executed by the US Credit Parties in favor of
the Administrative Agent, for the ratable benefit of the Secured
Parties.
“US Credit Parties” means
the Parent Borrower and the US Guarantors.
“US Guarantors” all direct
and indirect Domestic Subsidiaries of the Parent Borrower in
existence on the Closing Date or which become a party to the US
Subsidiary Guaranty Agreement pursuant to Section 7.14 (other than (a) a
direct or indirect Domestic Subsidiary of a Foreign Subsidiary or
(b) a Foreign Subsidiary Holdco).
“US Obligations” means, in
each case, whether now in existence or hereafter arising:
(a) the principal of and interest on (including interest
accruing after the filing of any bankruptcy or similar petition)
the Loans made to the Parent Borrower under the Credit Facility and
(b) all other fees and commissions (including attorneys’
fees), charges, indebtedness, loans, liabilities, financial
accommodations, obligations, covenants and duties owing by the US
Credit Parties and each of their respective Subsidiaries to the
Lenders, the Issuing Lender or the Administrative Agent, in each
case under any Loan Document, with respect to any Loan or Letter of
Credit of every kind, nature and description, direct or indirect,
absolute or contingent, due or to become due, contractual or
tortious, liquidated or unliquidated, and whether or not evidenced
by any note and including interest and fees that accrue after the
commencement by or against any US Credit Party or any Subsidiary
thereof of any proceeding under any Debtor Relief Laws, naming such
Person as the debtor in such proceeding, regardless of whether such
interest and fees are allowed claims in such
proceeding.
“US Subsidiary Guaranty
Agreement” means that certain Amended and Restated US
Subsidiary Guaranty Agreement of even date herewith executed by
certain Domestic Subsidiaries of the Parent Borrower in favor of
the Administrative Agent, for the benefit of the Secured
Parties.
“U.S. Person” means any
Person that is a “United States person” as defined in
Section 7701(a)(30) of the Code.
“U.S. Tax Compliance
Certificate” has the meaning assigned thereto in
Section 4.11(g).
“▇▇▇▇▇ Fargo” means ▇▇▇▇▇
Fargo Bank, National Association, a national banking
association.
-26-
“Wholly-Owned” means, with
respect to a Subsidiary, that all of the Equity Interests of such
Subsidiary are, directly or indirectly, owned or controlled by the
Parent Borrower and/or one or more of its Wholly-Owned Subsidiaries
(except for directors’ qualifying shares or other shares
required by Applicable Law to be owned by a Person other than the
Parent Borrower and/or one or more of its Wholly-Owned
Subsidiaries).
“Withholding Agent” means
the Parent Borrower, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and the Administrative
Agent.
“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.
SECTION
1.2 Other Definitions and
Provisions. With reference to this Agreement and each other
Loan Document, unless otherwise specified herein or in such other
Loan Document: (a) the definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined,
(b) whenever the context may require, any pronoun shall
include the corresponding masculine, feminine and neuter forms,
(c) the words “include”, “includes”
and “including” shall be deemed to be followed by the
phrase “without limitation”, (d) the word
“will” shall be construed to have the same meaning and
effect as the word “shall”, (e) any reference herein to
any Person shall be construed to include such Person’s
successors and assigns, (f) the words “herein”,
“hereof” and “hereunder”, and words of
similar import, shall be construed to refer to this Agreement in
its entirety and not to any particular provision hereof,
(g) all references herein to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of,
and Exhibits and Schedules to, this Agreement, (h) the words
“asset” and “property” shall be construed
to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash,
securities, accounts and contract rights, (i) the term
“documents” includes any and all instruments,
documents, agreements, certificates, notices, reports, financial
statements and other writings, however evidenced, whether in
physical or electronic form, (j) in the computation of periods
of time from a specified date to a later specified date, the word
“from” means “from and including;” the
words “to” and “until” each mean “to
but excluding;” and the word “through” means
“to and including” and (k) section headings herein and
in the other Loan Documents are included for convenience of
reference only and shall not affect the interpretation of this
Agreement or any other Loan Document.
SECTION
1.3 Accounting Terms.
(a) All accounting
terms not specifically or completely defined herein shall be
construed in conformity with, and all financial data (including
financial ratios and other financial calculations) required to be
submitted pursuant to this Agreement shall be prepared in
conformity with GAAP, applied on a consistent basis, as in effect
from time to time and in a manner consistent with that used in
preparing the audited financial statements required by Section 7.1(a),
except as otherwise
specifically prescribed herein. Notwithstanding the foregoing, for
purposes of determining compliance with any covenant (including the
computation of any financial covenant) contained herein,
Indebtedness of the Parent Borrower and its Subsidiaries shall be
deemed to be carried at 100% of the outstanding principal amount
thereof, and the effects of FASB ASC 825 and FASB ASC 470-20 on
financial liabilities shall be disregarded.
(b) If at any time any
change in GAAP would affect the computation of any financial ratio
or requirement set forth in any Loan Document, and the Borrower
Agent or the Required Lenders shall so request, the Administrative
Agent, the Lenders and the Borrower Agent shall negotiate in good
faith to amend such ratio or requirement to preserve the original
intent thereof in light of such change in GAAP (subject to the
approval of the Required Lenders); provided that, until so
amended, (i) such ratio or requirement shall continue to be
computed in accordance with GAAP prior to such change therein and
(ii) the Parent Borrower shall provide to the Administrative
Agent and the Lenders financial statements and other documents
required under this Agreement or as reasonably requested hereunder
setting forth a reconciliation between calculations of such ratio
or requirement made before and after giving effect to such change
in GAAP.
-27-
SECTION
1.4 UCC Terms. Terms defined in the
UCC in effect on the Closing Date and not otherwise defined herein
shall, unless the context otherwise indicates, have the meanings
provided by those definitions. Subject to the foregoing, the term
“UCC” refers, as of any date of determination, to the
UCC then in effect.
SECTION
1.5 Rounding. Any financial ratios
required to be maintained pursuant to this Agreement shall be
calculated by dividing the appropriate component by the other
component, carrying the result to one place more than the number of
places by which such ratio or percentage is expressed herein and
rounding the result up or down to the nearest number (with a
rounding-up if there is no nearest number).
SECTION
1.6 References to Agreement and
Laws. Unless otherwise expressly provided herein,
(a) any definition or reference to formation documents,
governing documents, agreements (including the Loan Documents) and
other contractual documents or instruments shall be deemed to
include all subsequent amendments, restatements, extensions,
supplements and other modifications thereto, but only to the extent
that such amendments, restatements, extensions, supplements and
other modifications are not expressly prohibited by any Loan
Document; and (b) any definition or reference to any
Applicable Law, including, without limitation, the Code, the
Commodity Exchange Act, ERISA, the Exchange Act, the PATRIOT Act,
the Securities Act of 1933, the UCC, the Investment Company Act of
1940, the Interstate Commerce Act, the Trading with the Enemy Act
of the United States or any of the foreign assets control
regulations of the United States Treasury Department, shall include
all statutory and regulatory provisions consolidating, amending,
replacing, supplementing or interpreting such Applicable
Law.
SECTION
1.7 Times of Day. Unless otherwise
specified, all references herein to times of day shall be
references to Pacific time (daylight or standard, as
applicable).
SECTION
1.8 Letter of Credit Amounts.
Unless otherwise specified, all references herein to the amount of
a Letter of Credit at any time shall be deemed to mean the maximum
face amount of such Letter of Credit after giving effect to all
increases thereof contemplated by such Letter of Credit or the
Letter of Credit Application therefor (at the time specified
therefor in such applicable Letter of Credit or Letter of Credit
Application and as such amount may be reduced by (a) any
permanent reduction of such Letter of Credit or (b) any amount
which is drawn, reimbursed and no longer available under such
Letter of Credit).
SECTION
1.9 Guarantees and Non-Recourse
Indebtedness. Unless otherwise specified, (i) the amount of
any Guarantee shall be the lesser of the principal amount of the
obligations guaranteed and still outstanding and the maximum amount
for which the guaranteeing Person may be liable pursuant to the
terms of the instrument embodying such Guarantee and (ii) the
amount of any Indebtedness which is limited or is non-recourse to a
Person or for which recourse is limited to an identified asset
shall be valued at the lesser of (A) if applicable, the limited
amount of such obligations, and (B) if applicable, the fair market
value of such assets securing such obligation.
SECTION
1.10 Covenant Compliance Generally.
For purposes of determining compliance under Sections 8.1, 8.2, 8.3, 8.5, 8.6 and 8.12, any amount in a
currency other than Dollars will be converted to Dollars in a
manner consistent with that used in calculating Consolidated Net
Income in the most recent annual financial statements of the Parent
Borrower and its Subsidiaries delivered pursuant to Section 7.1(a).
Notwithstanding the foregoing, for purposes of determining
compliance with Sections
8.1, 8.2,
8.3 and 8.12, with
respect to any amount of Indebtedness, Investment or Capital
Expenditure in a currency other than Dollars, no breach of any
basket contained in such sections shall be deemed to have occurred
solely as a result of changes in rates of exchange occurring after
the time such Indebtedness, Investment or Capital Expenditure is
incurred; provided
that for the avoidance of doubt, the foregoing provisions of this
Section 1.10
shall otherwise apply to such Sections, including with respect to
determining whether any Indebtedness or Investment may be incurred
at any time under such Sections.
SECTION
1.11 Rates. The Administrative Agent
does not warrant or accept responsibility for, and shall not have
any liability with respect to, the administration, submission or
any other matter related to the rates in the definition of
“LIBOR”.
-28-
ARTICLE
II
CREDIT
FACILITIES
SECTION
2.1 Revolving Credit Loans. Subject
to the terms and conditions of this Agreement and the other Loan
Documents, and in reliance upon the representations and warranties
set forth in this Agreement and the other Loan Documents, each
Revolving Credit Lender severally agrees to make Revolving Credit
Loans to the Cayman Borrower and/or the Parent Borrower in Dollars
from time to time from the Closing Date to, but not including, the
Revolving Credit Maturity Date as requested by the Borrower Agent
in accordance with the terms of Section 2.3; provided, that (a) the
Revolving Credit Outstandings shall not exceed the Revolving Credit
Commitment of all the Revolving Credit Lenders and (b) the
Revolving Credit Exposure of any Revolving Credit Lender shall not
at any time exceed such Revolving Credit Lender’s Revolving
Credit Commitment. Each Revolving Credit Loan by a Revolving Credit
Lender shall be in a principal amount equal to such Revolving
Credit Lender’s Revolving Credit Commitment Percentage of the
aggregate principal amount of Revolving Credit Loans requested on
such occasion. Subject to the terms and conditions hereof, the
Cayman Borrower and the Parent Borrower may borrow, repay and
reborrow Revolving Credit Loans hereunder until the Revolving
Credit Maturity Date.
SECTION
2.2 Swingline Loans.
(a) Availability. Subject to the
terms and conditions of this Agreement and the other Loan
Documents, including, without limitation, Section 5.2(d) of this
Agreement, and in reliance upon the representations and warranties
set forth in this Agreement and the other Loan Documents, the
Swingline Lender may, in its sole discretion, make Swingline Loans
to the Parent Borrower in Dollars from time to time from the
Closing Date to, but not including, the Revolving Credit Maturity
Date; provided,
that (a) after giving effect to any amount requested, the
Revolving Credit Outstandings shall not exceed the Revolving Credit
Commitment and (b) the aggregate principal amount of all
outstanding Swingline Loans (after giving effect to any amount
requested) shall not exceed the Swingline Commitment.
(b) Refunding.
(i) Swingline Loans
shall be refunded by the Revolving Credit Lenders on demand by the
Swingline Lender. Such refundings shall be made by the Revolving
Credit Lenders in accordance with their respective Revolving Credit
Commitment Percentages and shall thereafter be reflected as
Revolving Credit Loans of the Revolving Credit Lenders on the books
and records of the Administrative Agent. Each Revolving Credit
Lender shall fund its respective Revolving Credit Commitment
Percentage of Revolving Credit Loans as required to repay Swingline
Loans outstanding to the Swingline Lender upon demand by the
Swingline Lender but in no event later than 1:00 p.m. on the next
succeeding Business Day after such demand is made. No Revolving
Credit Lender’s obligation to fund its respective Revolving
Credit Commitment Percentage of a Swingline Loan shall be affected
by any other Revolving Credit Lender’s failure to fund its
Revolving Credit Commitment Percentage of a Swingline Loan, nor
shall any Revolving Credit Lender’s Revolving Credit
Commitment Percentage be increased as a result of any such failure
of any other Revolving Credit Lender to fund its Revolving Credit
Commitment Percentage of a Swingline Loan.
(ii) The
Parent Borrower shall pay to the Swingline Lender on demand the
amount of such Swingline Loans to the extent amounts received from
the Revolving Credit Lenders are not sufficient to repay in full
the outstanding Swingline Loans requested or required to be
refunded. In addition, the Parent Borrower hereby authorizes the
Administrative Agent to charge any account maintained by the Parent
Borrower with the Swingline Lender (up to the amount available
therein) in order to immediately pay the Swingline Lender the
amount of such Swingline Loans to the extent amounts received from
the Revolving Credit Lenders are not sufficient to repay in full
the outstanding Swingline Loans requested or required to be
refunded. If any portion of any such amount paid to the Swingline
Lender shall be recovered by or on behalf of the Parent Borrower
from the Swingline Lender in bankruptcy or otherwise, the loss of
the amount so recovered shall be ratably shared among all the
Revolving Credit Lenders in accordance with their respective
Revolving Credit Commitment Percentages (unless the amounts so
recovered by or on behalf of the Parent Borrower pertain to a
Swingline Loan extended after the occurrence and during the
continuance of an Event of Default of which the Administrative
Agent has received notice in the manner required pursuant to
Section 10.3
and which such Event of Default has not been waived by the Required
Lenders or the Lenders, as applicable).
-29-
(iii) Each
Revolving Credit Lender acknowledges and agrees that its obligation
to refund Swingline Loans in accordance with the terms of this
Section is absolute and unconditional and shall not be affected by
any circumstance whatsoever, including, without limitation,
non-satisfaction of the conditions set forth in Article V. Further, each
Revolving Credit ▇▇▇▇▇▇ agrees and acknowledges that if prior to
the refunding of any outstanding Swingline Loans pursuant to this
Section, one of the events described in Section 9.1(i) or
(j) shall have
occurred, each Revolving Credit Lender will, on the date the
applicable Revolving Credit Loan would have been made, purchase an
undivided participating interest in the Swingline Loan to be
refunded in an amount equal to its Revolving Credit Commitment
Percentage of the aggregate amount of such Swingline Loan. Each
Revolving Credit Lender will immediately transfer to the Swingline
Lender, in immediately available funds, the amount of its
participation and upon receipt thereof the Swingline Lender will
deliver to such Lender a certificate evidencing such participation
dated the date of receipt of such funds and for such amount.
Whenever, at any time after the Swingline Lender has received from
any Revolving Credit Lender such Revolving Credit Lender’s
participating interest in a Swingline Loan, the Swingline Lender
receives any payment on account thereof, the Swingline Lender will
distribute to such Revolving Credit Lender its participating
interest in such amount (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such
Revolving Credit Lender’s participating interest was
outstanding and funded).
(c) Defaulting Lenders.
Notwithstanding anything to the contrary contained in this
Agreement, this Section 2.2 shall be
subject to the terms and conditions of Section 4.13 and
Section 4.14.
SECTION
2.3 Procedure for Advances of Revolving
Credit Loans and Swingline Loans.
(a) Requests for Borrowing. The
Borrower Agent, on behalf of itself or the Cayman Borrower, shall
give the Administrative Agent irrevocable prior written notice
substantially in the form of Exhibit B (a
“Notice of
Borrowing”) not later than 11:00 a.m. (i) on the
same Business Day as each Base Rate Loan and each Swingline Loan
and (ii) at least three (3) Business Days before each LIBOR
Rate Loan, of its intention to borrow, specifying (A) the date
of such borrowing, which shall be a Business Day, (B) the
amount of such borrowing, which shall be, (x) with respect to
Base Rate Loans (other than Swingline Loans) in an aggregate
principal amount of $3,000,000 or a whole multiple of $1,000,000 in
excess thereof, (y) with respect to LIBOR Rate Loans in an
aggregate principal amount of $5,000,000 or a whole multiple of
$1,000,000 in excess thereof and (z) with respect to Swingline
Loans in an aggregate principal amount of $500,000 or a whole
multiple of $100,000 in excess thereof, (C) whether such Loan
is to be a Revolving Credit Loan or Swingline Loan, (D) in the
case of a Revolving Credit Loan whether the Loans are to be LIBOR
Rate Loans or Base Rate Loans, (E) whether such Loan will be made
to the Parent Borrower or the Cayman Borrower and (F) in the
case of a LIBOR Rate Loan, the duration of the Interest Period
applicable thereto. If the Borrower Agent fails to specify a type
of Loan in a Notice of Borrowing, then the applicable Loans shall
be made as Base Rate Loans. If the Borrower Agent requests a
Borrowing of LIBOR Rate Loans in any such Notice of Borrowing, but
fails to specify an Interest Period, it will be deemed to have
specified an Interest Period of one month. A Notice of Borrowing
received after 11:00 a.m. shall be deemed received on the next
Business Day. The Administrative Agent shall promptly notify the
Revolving Credit Lenders of each Notice of Borrowing.
(b) Disbursement of Revolving Credit and
Swingline Loans. Not later than 1:00 p.m. on the proposed
borrowing date, (i) each Revolving Credit Lender will make
available to the Administrative Agent, for the account of the
Parent Borrower or the Cayman Borrower, at the office of the
Administrative Agent in funds immediately available to the
Administrative Agent, such Revolving Credit ▇▇▇▇▇▇’s
Revolving Credit Commitment Percentage of the Revolving Credit
Loans to be made on such borrowing date and (ii) the Swingline
Lender will make available to the Administrative Agent, for the
account of the Parent Borrower, at the office of the Administrative
Agent in funds immediately available to the Administrative Agent,
the Swingline Loans to be made on such borrowing date. Each
Borrower hereby irrevocably authorizes the Administrative Agent to
disburse the proceeds of each borrowing requested pursuant to this
Section in immediately available funds by crediting or wiring such
proceeds to the deposit account of the Parent Borrower or the
Cayman Borrower, as applicable, identified in the most recent
notice substantially in the form attached as Exhibit C (a
“Notice of Account
Designation”) delivered by the Borrower Agent to the
Administrative Agent or as may be otherwise agreed upon by the
Borrower Agent, on behalf of itself or the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, and the
Administrative Agent from time to time. Subject to Section 4.7 hereof, the
Administrative Agent shall not be obligated to disburse the portion
of the proceeds of any Revolving Credit Loan requested pursuant to
this Section to the extent that any Revolving Credit Lender has not
made available to the Administrative Agent its Revolving Credit
Commitment Percentage of such Loan. Revolving Credit Loans to be
made for the purpose of refunding Swingline Loans shall be made by
the Revolving Credit Lenders as provided in Section 2.2(b).
-30-
SECTION
2.4 Repayment and Prepayment of Revolving
Credit and Swingline Loans.
(a) Repayment on Termination Date.
(i) Each Borrower hereby agrees to repay the outstanding principal
amount of all Revolving Credit Loans made to such Borrower in full
on the Revolving Credit Maturity Date, and (ii) the Parent
Borrower agrees to repay the outstanding principal amount of all
Swingline Loans in accordance with Section 2.2(b) (but, in
any event, no later than the Revolving Credit Maturity Date),
together, in each case, with all accrued but unpaid interest
thereon.
(b) Mandatory Prepayments. If at
any time the Revolving Credit Outstandings exceed the Revolving
Credit Commitment, the Parent Borrower and Cayman Borrower, as
applicable, agree to repay promptly upon notice from the
Administrative Agent, by payment to the Administrative Agent for
the account of the Revolving Credit Lenders, Revolving Credit
Outstandings in an amount equal to such excess with each such
repayment applied first, if such repayment is
made by the Parent Borrower, to the principal amount of outstanding
Swingline Loans, second to the principal amount
of outstanding Revolving Credit Loans and third, with respect to any
Letters of Credit then outstanding, if such repayment is made by
the Parent Borrower, a payment of Cash Collateral into a Cash
Collateral account opened by the Administrative Agent, for the
benefit of the Revolving Credit Lenders, in an amount equal to such
excess (such Cash Collateral to be applied in accordance with
Section 9.2(b)).
(c) Optional Prepayments. The
Parent Borrower and the Cayman Borrower may at any time and from
time to time prepay Revolving Credit Loans and Swingline Loans, in
whole or in part, without premium or penalty (other than pursuant
to Section 4.9),
with irrevocable prior written notice to the Administrative Agent
substantially in the form attached as Exhibit D (a
“Notice of
Prepayment”) given not later than 11:00 a.m.
(i) on the same Business Day as each Base Rate Loan and each
Swingline Loan and (ii) at least three (3) Business Days
before each LIBOR Rate Loan, specifying the date and amount of
prepayment and whether the prepayment is of LIBOR Rate Loans, Base
Rate Loans, Swingline Loans or a combination thereof, and, if of a
combination thereof, the amount allocable to each. Upon receipt of
such notice, the Administrative Agent shall promptly notify each
Revolving Credit Lender. If any such notice is given, the amount
specified in such notice shall be due and payable on the date set
forth in such notice. Partial prepayments shall be in an aggregate
amount of $3,000,000 or a whole multiple of $1,000,000 in excess
thereof with respect to Base Rate Loans (other than Swingline
Loans), $5,000,000 or a whole multiple of $1,000,000 in excess
thereof with respect to LIBOR Rate Loans and $500,000 or a whole
multiple of $100,000 in excess thereof with respect to Swingline
Loans. A Notice of Prepayment received after 11:00 a.m. shall be
deemed received on the next Business Day. Each such repayment shall
be accompanied by any amount required to be paid pursuant to
Section 4.9
hereof. Notwithstanding the foregoing, any Notice of Prepayment
delivered in connection with any refinancing of all of the Credit
Facility or other transaction, may be, if expressly so stated to
be, contingent upon the consummation of such refinancing or other
transaction and may be revoked by the Borrowers in the event such
refinancing is not consummated (provided that the failure of such
contingency shall not relieve the Borrowers from their respective
obligations in respect thereof under Section 4.9).
(d) Limitation on Prepayment of LIBOR Rate
Loans. The Borrowers may not prepay any LIBOR Rate Loan on
any day other than on the last day of the Interest Period
applicable thereto unless such prepayment is accompanied by any
amount required to be paid pursuant to Section 4.9
hereof.
SECTION
2.5 Permanent Reduction of the Revolving
Credit Commitment.
(a) Voluntary Reduction. The
Borrowers shall have the right at any time and from time to time,
upon at least five (5) Business Days prior irrevocable written
notice to the Administrative Agent, to permanently reduce, without
premium or penalty, (i) the entire Revolving Credit Commitment
at any time or (ii) portions of the Revolving Credit
Commitment, from time to time, in an aggregate principal amount not
less than $3,000,000 or any whole multiple of $1,000,000 in excess
thereof. Any reduction of the Revolving Credit Commitment shall be
applied to the Revolving Credit Commitment of each Revolving Credit
Lender according to its Revolving Credit Commitment Percentage. All
Commitment Fees accrued until the effective date of any termination
of the Revolving Credit Commitment shall be paid on the effective
date of such termination. Notwithstanding the foregoing, any notice
to reduce the Revolving Credit Commitment delivered in connection
with any refinancing of all of the Revolving Credit Facility or
other transaction, may be, if expressly so stated to be, contingent
upon the consummation of such refinancing or other transaction and
may be revoked by the Borrowers in the event such refinancing is
not consummated (provided that the failure of such contingency
shall not relieve the Borrowers from their respective obligations
in respect thereof under Section 4.9).
-31-
(b) Corresponding Payment. Each
permanent reduction permitted pursuant to this Section shall be
accompanied by a payment of principal sufficient to reduce the
aggregate outstanding Revolving Credit Loans, Swingline Loans and
L/C Obligations, as applicable, after such reduction to the
Revolving Credit Commitment as so reduced, and if the aggregate
amount of all outstanding Letters of Credit exceeds the Revolving
Credit Commitment as so reduced, the applicable Borrower shall be
required to deposit Cash Collateral in a Cash Collateral account
opened by the Administrative Agent in an amount equal to such
excess. Such Cash Collateral shall be applied in accordance with
Section 9.2(b). Any
reduction of the Revolving Credit Commitment to zero shall be
accompanied by payment of all outstanding Revolving Credit Loans
and Swingline Loans (and furnishing of Cash Collateral satisfactory
to the Administrative Agent for all L/C Obligations) and shall
result in the termination of the Revolving Credit Commitment and
the Swingline Commitment and the Revolving Credit Facility. If the
reduction of the Revolving Credit Commitment requires the repayment
of any LIBOR Rate Loan, such repayment shall be accompanied by any
amount required to be paid pursuant to Section 4.9
hereof.
SECTION
2.6 Termination of Revolving Credit
Facility. The Revolving Credit Facility and the Revolving
Credit Commitments shall terminate on the Revolving Credit Maturity
Date.
SECTION
2.7 Increase in Revolving Credit
Commitments; Incremental Loans.
(a) Request for Increase. At any
time after the Closing Date, upon written notice to the
Administrative Agent, the Borrower Agent may from time to time
request (i) one or more incremental term loans (each, an
“Incremental Term
Loan”) or (ii) one or more increases in the Revolving
Credit Commitments (each, a “Revolving Credit Facility
Increase” and all such Revolving Credit Facility
Increases, together with the initial principal amount of the
Incremental Term Loans, the “Incremental Increases”);
provided that (A)
the aggregate principal amount for all such Incremental Increases
shall not exceed $300,000,000 and (B) any such request for an
increase shall be in a minimum amount of $10,000,000 or, if less,
the remaining amount permitted pursuant to the foregoing
clause
(A).
(b) Incremental Lenders. Each
notice from the Borrower Agent pursuant to this Section shall set
forth the requested amount and proposed terms of the relevant
Incremental Increase. Incremental Increases may be provided by any
existing Lender or by any other Persons (each, an
“Incremental
Lender”); provided that the
Administrative Agent, the Issuing Lender and the Swingline Lender,
as applicable, shall have consented (such consent not to be
unreasonably withheld, conditioned or delayed) to such Incremental
Lender’s providing such Incremental Increase to the extent
any such consent would be required under Section 11.9(b) for an
assignment of Loans or Revolving
Credit Commitments, as applicable, to such Incremental
Lender. At the time of sending such notice, the Borrower Agent (in
consultation with the Administrative Agent) shall specify the time
period within which each Incremental Lender is requested to
respond, which shall in no event be less than ten (10) Business
Days from the date of delivery of such notice to the proposed
Incremental Lenders. Each proposed Incremental Lender may elect or
decline, in its sole discretion, and shall notify the
Administrative Agent within such time period whether it agrees, to
provide an Incremental Increase and, if so, whether by an amount
equal to, greater than or less than requested. Any Person not
responding within such time period shall be deemed to have declined
to provide an Incremental Increase.
(c) Increase Effective Date and
Allocations. The Administrative Agent and the Borrower Agent
shall determine the effective date (the “Increase Effective Date”)
and the final allocation of such Incremental Increase (limited in
the case of the Incremental Lenders to their own respective
allocations thereof). The Administrative Agent shall promptly
notify the Borrower Agent and the Incremental Lenders of the final
allocation of such Incremental Increases and the Increase Effective
Date.
(d) Conditions to Effectiveness of
Increase. Any Incremental Increase shall become effective as
of such Increase Effective Date, provided that:
(i) no Default or Event
of Default shall exist on such Increase Effective Date immediately
prior to or after giving effect to (A) such Incremental Increase or
(B) the making of any Extensions of Credit pursuant thereto;
and
-32-
(ii) the
Parent Borrower is in pro forma compliance with the financial
covenants set forth in Section 8.13 based on the
financial statements most recently delivered pursuant to
Section 7.1 after
giving effect to such Incremental Increase (assuming that the
entire applicable Incremental Term Loan and/or Revolving Credit
Facility Increase is fully funded on the effective date
thereof).
(e) Terms of Revolving Credit Facility
Increases.
(i) Revolving Credit
Loans made with respect to the Revolving Credit Facility Increase
shall mature on the Revolving Credit Maturity Date and shall be
subject to the same terms and conditions as the other Revolving
Credit Loans;
(ii) the
outstanding Revolving Credit Loans and Revolving Credit Commitment
Percentages of Swingline Loans and L/C Obligations will be
reallocated by the Administrative Agent on the applicable Increase
Effective Date among the Revolving Credit Lenders (including the
Incremental Lenders providing such Revolving Credit Facility
Increase) in accordance with their revised Revolving Credit
Commitment Percentages (and the Revolving Credit Lenders (including
the Incremental Lenders providing such Revolving Credit Facility
Increase) agree to make all payments and adjustments necessary to
effect such reallocation and the Borrowers shall pay any and all
costs required pursuant to Section 4.9 in connection with
such reallocation as if such reallocation were a
repayment);
(iii) the
terms and conditions applicable to such Revolving Credit Facility
Increase shall, except to the extent otherwise provided in this
Section 2.7, be
identical to the terms and conditions applicable to the Revolving
Credit Facility;
(iv) each
Revolving Credit Facility Increase shall constitute US Obligations
or Cayman Obligations, as applicable, of the applicable Borrower
and shall be secured and guaranteed with the other Extensions of
Credit on a pari passu basis; and
(v) any Incremental
Lender with a Revolving Credit Facility Increase shall be entitled
to the same voting rights as the existing Revolving Credit Lenders
under the Revolving Credit Facility and any Extensions of Credit
made in connection with each Revolving Credit Facility Increase
shall receive proceeds of prepayments on the same basis as the
other Revolving Credit Loans made hereunder.
(f) Terms of Incremental Term
Loans.
(i) the maturity date
and principal amortization for each Incremental Term Loan shall be
determined by the applicable Incremental Lenders and the Borrower
Agent on the applicable Increase Effective Date; provided that no Incremental
Term Loan will have a shorter weighted average life to maturity
than the remaining weighted average life to maturity of the Initial
Term Loan or a maturity date earlier than the Term Loan Maturity
Date;
(ii) the
Applicable Margin and pricing grid, if applicable, for each
Incremental Term Loan shall be determined by the applicable
Incremental Lenders and the Borrower Agent on the applicable
Increase Effective Date and shall be reasonably acceptable to the
Administrative Agent;
(iii) except
as provided in this Section 2.7, all other terms
and conditions applicable to any Incremental Term Loan shall be
consistent with the terms and conditions applicable to the Initial
Term Loan; and
(iv) each
Incremental Term Loan shall constitute US Obligations or Cayman
Obligations, as applicable, of the applicable Borrower and shall be
secured and guaranteed with the other Extensions of Credit on a
pari passu basis.
-33-
(g) Incremental Amendment. Each
such Incremental Increase shall be effected pursuant to an
amendment (an “Incremental Amendment”)
to this Agreement and, as appropriate, the other Loan Documents,
executed by the Borrowers, the Administrative Agent and the
applicable Incremental Lenders, which Incremental Amendment may,
without the consent of any other Lenders, effect such amendments to
this Agreement and the other Loan Documents as may be necessary or
appropriate, in the reasonable opinion of the Administrative Agent,
to effect the provisions of this Section 2.7.
SECTION
2.8 Initial Term Loan. Subject to
the terms and conditions of this Agreement and the other Loan
Documents, and in reliance upon the representations and warranties
set forth in this Agreement and the other Loan Documents, each Term
Loan Lender severally agrees to make the Initial Term Loan to the
Parent Borrower on the Closing Date in a principal amount equal to
the amount of such ▇▇▇▇▇▇’s Initial Term Loan commitment as
set forth on Schedule
1.1(a). Any obligation of the Term Loan Lenders to fund the
Initial Term Loan shall terminate upon funding of the Initial Term
Loan on the Closing Date.
SECTION
2.9 Procedure for Advance of Term
Loans.
(a) Initial Term Loan. The Parent
Borrower shall give the Administrative Agent an irrevocable Notice
of Borrowing prior to 11:00 a.m. on the Closing Date requesting
that the Term Loan Lenders make the Initial Term Loan as a Base
Rate Loan on such date (provided that the Parent Borrower may
request, no later than three (3) Business Days prior to the Closing
Date, that the Term Loan Lenders make the Initial Term Loan as a
LIBOR Rate Loan if the Parent Borrower has delivered to the
Administrative Agent a letter in form and substance reasonably
satisfactory to the Administrative Agent indemnifying the Lenders
in the manner set forth in Section 4.9 of this
Agreement). Upon receipt of such Notice of Borrowing from the
Parent Borrower, the Administrative Agent shall promptly notify
each Term Loan Lender thereof. Not later than 1:00 p.m. on the
Closing Date, each Term Loan Lender will make available to the
Administrative Agent for the account of the Parent Borrower, at the
Administrative Agent’s Office in immediately available funds,
the amount of such Initial Term Loan to be made by such Term Loan
Lender on the Closing Date. The Parent Borrower hereby irrevocably
authorizes the Administrative Agent to disburse the proceeds of the
Initial Term Loan in immediately available funds by wire transfer
to such Person or Persons as may be designated by the Parent
Borrower in writing.
(b) Incremental Term Loans. Any
Incremental Term Loans shall be borrowed pursuant to, and in
accordance with Section 2.7.
SECTION
2.10 Repayment of Term
Loans.
(a) Initial Term Loan. The Parent
Borrower shall repay the aggregate outstanding principal amount of
the Initial Term Loan in consecutive quarterly installments on the
last Business Day of each of March, June, September and December
commencing March 31, 2018 as set forth below, except as the amounts
of individual installments may be adjusted pursuant to Section 2.11
hereof:
-34-
|
PAYMENT DATE
|
PRINCIPAL INSTALLMENT($)
|
|
March
31, 2018
|
$6,250,000
|
|
June
30, 2018
|
$6,250,000
|
|
September
30, 2018
|
$6,250,000
|
|
December
31, 2018
|
$6,250,000
|
|
March
31, 2019
|
$6,250,000
|
|
June
30, 2019
|
$6,250,000
|
|
September
30, 2019
|
$6,250,000
|
|
December
31, 2019
|
$6,250,000
|
|
March
31, 2020
|
$9,375,000
|
|
June
30, 2020
|
$9,375,000
|
|
September
30, 2020
|
$9,375,000
|
|
December
31, 2020
|
$9,375,000
|
|
March
31, 2021
|
$12,500,000
|
|
June
30, 2021
|
$12,500,000
|
|
September
30, 2021
|
$12,500,000
|
|
December
31, 2021
|
$12,500,000
|
|
March
31, 2022
|
$12,500,000
|
|
June
30, 2022
|
$12,500,000
|
|
September
30, 2022
|
$12,500,000
|
|
December
31, 2022
|
$12,500,000
|
|
Maturity
Date
|
Remaining
Outstanding Principal Amount
|
|
|
|
If not
sooner paid, the Initial Term Loan shall be paid in full, together
with accrued interest thereon, on the Term Loan Maturity
Date.
(b) Incremental Term Loans. The
Parent Borrower shall repay the aggregate outstanding principal
amount of any Incremental Term Loan as determined pursuant to, and
in accordance with, Section 2.7.
SECTION
2.11 Prepayments of Term
Loans.
(a) Optional Prepayments. The
Parent Borrower shall have the right at any time and from time to
time, without premium or penalty, to prepay the Term Loans, in
whole or in part, upon delivery to the Administrative Agent of a
Notice of Prepayment not later than 11:00 a.m. (i) on the same
Business Day as each Base Rate Loan and (ii) at least three
(3) Business Days before each LIBOR Rate Loan, specifying the date
and amount of repayment, whether the repayment is of LIBOR Rate
Loans or Base Rate Loans or a combination thereof, and if a
combination thereof, the amount allocable to each and whether the
repayment is of the Initial Term Loan, an Incremental Term Loan or
a combination thereof, and if a combination thereof, the amount
allocable to each. Each partial prepayment of the Term Loans
hereunder shall be in an aggregate principal amount of at least
$3,000,000 or a whole multiple of $1,000,000 in excess thereof with
respect to Base Rate Loans, $5,000,000 or any whole multiple of
$1,000,000 in excess thereof with respect to LIBOR Rate Loans and
shall be applied, on a pro rata basis, to the outstanding principal
installments of the Initial Term Loan and, if applicable, any
Incremental Term Loans as directed by the Parent Borrower. Each
repayment shall be accompanied by any amount required to be paid
pursuant to Section 4.9. A Notice of
Prepayment received after 11:00 a.m. shall be deemed received on
the next Business Day. The Administrative Agent shall promptly
notify the applicable Term Loan Lenders of each Notice of
Prepayment.
(b) Mandatory
Prepayments.
-35-
(i) Debt Issuances. The Parent
Borrower shall make mandatory principal prepayments of the Term
Loans in the manner set forth in clause (v) below in an amount
equal to one hundred percent (100%) of the aggregate Net Cash
Proceeds from any Debt Issuance not otherwise permitted pursuant to
Section 8.1.
Such prepayment shall be made within three (3) Business Days after
the date of receipt of the Net Cash Proceeds of any such Debt
Issuance.
(ii) Equity
Issuances. The Parent Borrower shall make mandatory
principal prepayments of the Term Loans in the manner set forth in
clause (v) below in
an amount equal to fifty-percent (50%) of the aggregate Net Cash
Proceeds from any Equity Issuance other than the exercise price on
stock options issued as part of employee compensation; provided, that so long as no
Event of Default has occurred and is continuing, no prepayments
shall be required from the Net Cash Proceeds from Equity Issuances
among the Credit Parties and their Subsidiaries, including Equity
Issuances the proceeds of which are used to finance a Permitted
Acquisition. Such prepayment shall be made within three (3)
Business Days after the date of receipt of the Net Cash Proceeds of
any such Equity Issuance.
(iii) Asset
Dispositions and Insurance and Condemnation Events. The
Parent Borrower shall make mandatory principal prepayments of the
Term Loans in the manner set forth in clause (v) below in amounts
equal to one hundred percent (100%) of the aggregate Net Cash Proceeds
from (A) any Asset Disposition (other than any Asset Disposition
permitted pursuant to clauses (a) through (l) of Section 8.5) made by a US
Credit Party or (B) any Insurance and Condemnation Event of a US
Credit Party, to the extent that the aggregate amount of such Net
Cash Proceeds, in the case of each of clauses (A) and (B),
respectively, exceed $5,000,000 during any Fiscal Year. Such
prepayments shall be made within three (3) Business Days after the
date of receipt of the Net Cash Proceeds; provided that, so long as no
Event of Default has occurred and is continuing, no prepayment
shall be required under this Section 2.11(b)(iii) with
respect to such portion of such Net Cash Proceeds that the Parent
Borrower shall have given prompt written notice to the
Administrative Agent of its intent to reinvest in accordance with
Section
2.11(b)(iv).
(iv) Reinvestment
Option. With respect to any Net Cash Proceeds realized or
received with respect to any Asset Disposition or any Insurance and
Condemnation Event by any Credit Party of any Subsidiary thereof
(in each case, only to the extent contemplated pursuant to
Section
2.11(b)(iii)), at the option of the Parent Borrower, the
Credit Parties or their Subsidiaries may reinvest all or any
portion of such Net Cash Proceeds in assets used or useful for the
business of the Credit Parties and their Subsidiaries within twelve
(12) months following receipt of such Net Cash Proceeds (or, if a
commitment for such reinvestment has been made within such twelve
(12) month period, within 90 days after the end of such twelve (12)
month period); provided that if any Net Cash
Proceeds are no longer intended to be or cannot be so reinvested at
any time after delivery of a notice of reinvestment election, an
amount equal to any such Net Cash Proceeds shall be applied within
three (3) Business Days after the applicable Credit Party
reasonably determines that such Net Cash Proceeds are no longer
intended to be or cannot be so reinvested to the prepayment of the
Term Loans as set forth in this Section 2.11(b);. Pending
the final application of any such Net Cash Proceeds, the applicable
Credit Party may invest an amount equal to such Net Cash Proceeds
in any manner that is not prohibited by this
Agreement.
(v) Notice; Manner of Payment. Upon
the occurrence of any event triggering the prepayment requirement
under clauses (i) through and including (iv) above, the Parent
Borrower shall promptly deliver a Notice of Prepayment to the
Administrative Agent and upon receipt of such notice, the
Administrative Agent shall promptly so notify the Lenders. Each
prepayment of the Loans under this Section shall be applied ratably
between the Initial Term Loans and any Incremental Term Loans which
such prepayment to be applied to reduce the remaining scheduled
principal installments of the Initial Term Loans and any
Incremental Term Loans (including the bullet payment due at
maturity) on a pro
rata
basis.
(vi) Prepayment
of LIBOR Rate Loans. Each prepayment shall be accompanied by
any amount required to be paid pursuant to Section 4.9; provided that, so long as no
Event of Default shall have occurred and be continuing, if any
prepayment of LIBOR Rate Loans is required to be made under this
Section 2.11(b)
prior to the last day of the Interest Period therefor, in lieu of
making any payment pursuant to this Section 2.11(b) in respect of
any such LIBOR Rate Loan prior to the last day of the Interest
Period therefor, the Parent Borrower may, in its sole discretion,
deposit an amount sufficient to make any such prepayment otherwise
required to be made thereunder together with accrued interest to
the last day of such Interest Period into an account held at, and
subject to the sole control of, the Administrative Agent until the
last day of such Interest Period, at which time the Administrative
Agent shall be authorized (without any further action by or notice
to or from the Parent Borrower or any other Credit Party) to apply
such amount to the prepayment of such Term Loans in accordance with
this Section
2.11(b). Upon the occurrence and during the
continuance of any Event of Default, the Administrative Agent shall
also be authorized (without any further action by or notice to or
from the Parent Borrower or any other Credit Party) to apply such
amount to the prepayment of the outstanding Term Loans in
accordance with the relevant provisions of this Section 2.11(b).
(vii) No
Reborrowings. Amounts prepaid under the Term Loan pursuant
to this Section may not be reborrowed.
ARTICLE
III
LETTER
OF CREDIT FACILITY
SECTION
3.1 L/C Facility.
(a) Availability. Subject to the
terms and conditions hereof, the Issuing Lender, in reliance on the
agreements of the other Revolving Credit Lenders set forth in
Section 3.4(a),
agrees to issue standby Letters of Credit in an aggregate
amount not to exceed its L/C Commitment for the account of the
Parent Borrower (which may support the obligations of any
Subsidiary of the Parent Borrower) on any Business Day from the
Closing Date to, but not including, the thirtieth (30th) Business Day prior
to the Revolving Credit Maturity Date in such form as may be
approved from time to time by the Issuing Lender; provided, that the Issuing
Lender shall have no obligation to issue any Letter of Credit if,
after giving effect to such issuance, (a) the L/C Obligations would
exceed the L/C Commitment or (b) the Revolving Credit Outstandings
would exceed the Revolving Credit Commitment. Each Letter of Credit
shall (i) be denominated in Dollars in a minimum amount of
$100,000 (or such lesser amount as agreed to by the Issuing
Lender), (ii) be a standby letter of credit issued to support
the obligations of the Parent Borrower or any of its Subsidiaries,
contingent or otherwise, incurred in the ordinary course of
business and (iii) expire on a date no more than twelve (12) months
after the date of issuance or last renewal of such Letter of Credit
subject to automatic renewal for additional one (1) year periods
pursuant to the terms of the Letter of Credit Application or other
documentation acceptable to the applicable Issuing Lender), which
date shall be no later than the fifth (5th) Business Day prior to
the Revolving Credit Maturity Date and (iv) be subject to the
ISP98, as set forth in the Letter of Credit Application or as
determined by the Issuing Lender and, to the extent not
inconsistent therewith, the laws of the State of New York. The
Issuing Lender shall not at any time be obligated to issue any
Letter of Credit hereunder if (A) any order, judgment or decree of
any Governmental Authority or arbitrator shall by its terms purport
to enjoin or restrain the Issuing Lender from issuing such Letter
of Credit, or any Applicable Law applicable to the Issuing Lender
or any request or directive (whether or not having the force of
law) from any Governmental Authority with jurisdiction over the
Issuing Lender shall prohibit, or request that the Issuing Lender
refrain from, the issuance of letters of credit generally or such
Letter of Credit in particular or shall impose upon the Issuing
Lender with respect to letters of credit generally or such Letter
of Credit in particular any restriction or reserve or capital
requirement (for which the Issuing Lender is not otherwise
compensated) not in effect on the Closing Date, or any unreimbursed
loss, cost or expense that was not applicable, in effect as of the
Closing Date and that the Issuing Lender in good ▇▇▇▇▇ ▇▇▇▇▇
material to it, (B) the conditions set forth in Section 5.2 are not satisfied,
or (C) the beneficiary of such Letter of Credit is a Sanctioned
Person. References herein to “issue” and derivations
thereof with respect to Letters of Credit shall also include
extensions or modifications of any outstanding Letters of Credit,
unless the context otherwise requires. As of the Closing Date, each
of the Existing Letters of Credit shall constitute, for all
purposes of this Agreement and the other Loan Documents, a Letter
of Credit issued and outstanding hereunder.
(b) Defaulting Lenders.
Notwithstanding anything to the contrary contained in this
Agreement, Article
III shall be subject to the terms and conditions of
Section 4.13
and Section 4.14.
-36-
SECTION
3.2 Procedure for Issuance of Letters of
Credit. The Parent Borrower may from time to time request
that the Issuing Lender issue a Letter of Credit by delivering to
the Issuing Lender at the Administrative Agent’s Office a
Letter of Credit Application therefor, completed to the
satisfaction of the Issuing Lender, and such other certificates,
documents and other papers and information as the Issuing Lender
may request. Upon receipt of any Letter of Credit Application, the
Issuing Lender shall process such Letter of Credit Application and
the certificates, documents and other papers and information
delivered to it in connection therewith in accordance with its
customary procedures and shall, subject to Section 3.1 and
Article V, promptly
issue the Letter of Credit requested thereby (but in no event shall
the Issuing Lender be required to issue any Letter of Credit
earlier than three (3) Business Days after its receipt of the
Letter of Credit Application therefor and all such other
certificates, documents and other papers and information relating
thereto) by issuing the original of such Letter of Credit to the
beneficiary thereof or as otherwise may be agreed by the Issuing
Lender and the Parent Borrower. The Issuing Lender shall promptly
furnish to the Borrower Agent a copy of such Letter of Credit and
shall promptly notify each Revolving Credit Lender of the issuance
and upon request by any Revolving Credit Lender, furnish to such
Lender a copy of such Letter of Credit and the amount of such
Revolving Credit ▇▇▇▇▇▇’s participation therein.
SECTION
3.3 Commissions and Other
Charges.
(a) Letter of Credit Commissions.
Subject to Section 4.14(a)(iii)(B),
the Parent Borrower shall pay to the Administrative Agent, for the
account of the applicable Issuing Lender and the L/C Participants,
a letter of credit commission with respect to each Letter of Credit
in the amount equal to the daily amount available to be drawn under
such standby Letters of Credit times the Applicable Margin with
respect to Revolving Credit Loans that are LIBOR Rate Loans
(determined on a per annum basis). Such commission shall be payable
quarterly in arrears on the last Business Day of each calendar
quarter, on the Revolving Credit Maturity Date and thereafter on
demand of the Administrative Agent. The Administrative Agent shall,
promptly following its receipt thereof, distribute to the Issuing
Lender and the L/C Participants all commissions received pursuant
to this Section 3.3 in accordance
with their respective Revolving Credit Commitment
Percentages.
(b) Issuance Fee. In addition to
the foregoing commission, the Parent Borrower shall pay directly to
the Issuing Lender, for its own account, an issuance fee with
respect to each Letter of Credit at a rate equal to 0.125% per
annum, computed on the daily amount available to be drawn under
such Letter of Credit. Such issuance fee shall be payable quarterly
in arrears on the last Business Day of each calendar quarter
commencing with the first such date to occur after the issuance of
a Letter of Credit, on a the Revolving Credit Maturity Date and
thereafter on demand of the Issuing Lender. For the avoidance of
doubt, such issuance fee shall be applicable to and paid upon each
of the Existing Letters of Credit.
(c) Other Costs. In addition to the
foregoing fees and commissions, the Parent Borrower shall pay or
reimburse the Issuing Lender for such normal and customary fees,
costs, charges and expenses as are incurred or charged by the
Issuing Lender in issuing, effecting payment under, amending or
otherwise administering any Letter of Credit.
SECTION
3.4 L/C
Participations.
(a) The Issuing Lender
irrevocably agrees to grant and hereby grants to each L/C
Participant, and, to induce the Issuing Lender to issue Letters of
Credit hereunder, each L/C Participant irrevocably agrees to accept
and purchase and hereby accepts and purchases from the Issuing
Lender, on the terms and conditions hereinafter stated, for such
L/C Participant’s own account and risk an undivided interest
equal to such L/C Participant’s Revolving Credit Commitment
Percentage in the Issuing Lender’s obligations and rights
under and in respect of each Letter of Credit issued hereunder and
the amount of each draft paid by the Issuing Lender thereunder.
Each L/C Participant unconditionally and irrevocably agrees with
the Issuing Lender that, if a draft is paid under any Letter of
Credit for which the Issuing Lender is not reimbursed in full by
the Parent Borrower through a Revolving Credit Loan or otherwise in
accordance with the terms of this Agreement, such L/C Participant
shall pay to the Issuing Lender upon demand at the Issuing
Lender’s address for notices specified herein an amount equal
to such L/C Participant’s Revolving Credit Commitment
Percentage of the amount of such draft, or any part thereof, which
is not so reimbursed.
-37-
(b) Upon becoming aware
of any amount required to be paid by any L/C Participant to the
Issuing Lender pursuant to Section 3.4(a) in respect
of any unreimbursed portion of any payment made by the Issuing
Lender under any Letter of Credit, the Issuing Lender shall notify
each L/C Participant of the amount and due date of such required
payment and such L/C Participant shall pay to the Issuing Lender
the amount specified on the applicable due date. If any such amount
is paid to the Issuing Lender after the date such payment is due,
such L/C Participant shall pay to the Issuing Lender on demand, in
addition to such amount, the product of (i) such amount,
times (ii) the
daily average Federal Funds Rate as determined by the
Administrative Agent during the period from and including the date
such payment is due to the date on which such payment is
immediately available to the Issuing Lender, times (iii) a fraction the
numerator of which is the number of days that elapse during such
period and the denominator of which is 360. A certificate of the
Issuing Lender with respect to any amounts owing under this Section
shall be conclusive in the absence of manifest error. With respect
to payment to the Issuing Lender of the unreimbursed amounts
described in this Section, if the L/C Participants receive notice
that any such payment is due (A) prior to 1:00 p.m. on any Business
Day, such payment shall be due that Business Day, and (B) after
1:00 p.m. on any Business Day, such payment shall be due on the
following Business Day.
(c) Whenever, at any
time after the Issuing Lender has made payment under any Letter of
Credit and has received from any L/C Participant its Revolving
Credit Commitment Percentage of such payment in accordance with
this Section, the Issuing Lender receives any payment related to
such Letter of Credit (whether directly from the Parent Borrower or
otherwise), or any payment of interest on account thereof, the
Issuing Lender will distribute to such L/C Participant its
pro rata share thereof;
provided, that in
the event that any such payment received by the Issuing Lender
shall be required to be returned by the Issuing Lender, such L/C
Participant shall return to the Issuing Lender the portion thereof
previously distributed by the Issuing Lender to it.
SECTION
3.5 Reimbursement Obligation of the Parent
Borrower. In the event of any drawing under any Letter of
Credit, the Parent ▇▇▇▇▇▇▇▇ agrees to reimburse (either with the
proceeds of a Revolving Credit Loan as provided for in this Section
or with funds from other sources), in same day funds, the Issuing
Lender on each date on which the Issuing Lender notifies the Parent
Borrower of the date and amount of a draft paid under any Letter of
Credit for the amount of (a) such draft so paid and
(b) any amounts referred to in Section 3.3(c) incurred by
the Issuing Lender in connection with such payment. Unless the
Parent Borrower shall immediately notify the Issuing Lender that
the Parent Borrower intends to reimburse the Issuing Lender for
such drawing from other sources or funds, the Parent Borrower shall
be deemed to have timely given a Notice of Borrowing to the
Administrative Agent requesting that the Revolving Credit Lenders
make a Revolving Credit Loan as a Base Rate Loan on such date in
the amount of (i) such draft so paid and (ii) any amounts
referred to in Section 3.3(c) incurred by
the Issuing Lender in connection with such payment, and the
Revolving Credit Lenders shall make a Revolving Credit Loan as a
Base Rate Loan in such amount, the proceeds of which shall be
applied to reimburse the Issuing Lender for the amount of the
related drawing and such fees and expenses. Each Revolving Credit
Lender acknowledges and agrees that its obligation to fund a
Revolving Credit Loan in accordance with this Section to reimburse
the Issuing Lender for any draft paid under a Letter of Credit is
absolute and unconditional and shall not be affected by any
circumstance whatsoever, including, without limitation,
non-satisfaction of the conditions set forth in Section 2.3(a) or
Article V. If the
Parent Borrower has elected to pay the amount of such drawing with
funds from other sources and shall fail to reimburse the Issuing
Lender as provided above, the unreimbursed amount of such drawing
shall bear interest at the rate which would be payable on any
outstanding Base Rate Loans which were then overdue from the date
such amounts become payable (whether at stated maturity, by
acceleration or otherwise) until payment in full.
SECTION
3.6 Obligations Absolute. The
Parent Borrower’s obligations under this Article III (including,
without limitation, the Reimbursement Obligation) shall be absolute
and unconditional under any and all circumstances and irrespective
of any setoff, counterclaim or defense to payment which the Parent
Borrower may have or have had against the Issuing Lender or any
beneficiary of a Letter of Credit or any other Person. The Parent
Borrower also agrees that the Issuing Lender and the L/C
Participants shall not be responsible for, and the Parent
Borrower’s Reimbursement Obligation under Section 3.5 shall not be
affected by, among other things, the validity or genuineness of
documents or of any endorsements thereon, even though such
documents shall in fact prove to be invalid, fraudulent or forged,
or any dispute between or among the Parent Borrower and any
beneficiary of any Letter of Credit or any other party to which
such Letter of Credit may be transferred or any claims whatsoever
of the Parent Borrower against any beneficiary of such Letter of
Credit or any such transferee. The Issuing Lender shall not be
liable for any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or
-38-
advice,
however transmitted, in connection with any Letter of Credit,
except for errors or omissions caused by the Issuing ▇▇▇▇▇▇’s
gross negligence or willful misconduct, as determined by a court of
competent jurisdiction by final non-appealable judgment. The Parent
Borrower agrees that any action taken or omitted by the Issuing
Lender under or in connection with any Letter of Credit or the
related drafts or documents, if done in the absence of gross
negligence or willful misconduct or a breach in bad faith of its
obligations under the Loan Documents, in each case as determined by
a court of competent jurisdiction by final non-appealable judgment,
shall be binding on the Parent Borrower and shall not result in any
liability of the Issuing Lender or any L/C Participant to the
Parent Borrower. The responsibility of the Issuing Lender to the
Parent Borrower in connection with any draft presented for payment
under any Letter of Credit shall, in addition to any payment
obligation expressly provided for in such Letter of Credit, be
limited to determining that the documents (including each draft)
delivered under such Letter of Credit in connection with such
presentment substantially conforms to the requirements under such
Letter of Credit.
SECTION
3.7 Effect of Letter of Credit
Application. To the extent that any provision of any Letter
of Credit Application related to any Letter of Credit is
inconsistent with the provisions of this Article III, the provisions of
this Article III
shall apply.
ARTICLE
IV
GENERAL
LOAN PROVISIONS
SECTION
4.1 Interest.
(a) Interest Rate Options. Subject
to the provisions of this Section, at the election of the
Borrowers, (i) Revolving Credit Loans and the Term Loans shall
bear interest at (A) the Base Rate plus the Applicable Margin or
(B) the LIBOR Rate plus the Applicable Margin
(provided that the
LIBOR Rate shall not be available until three (3) Business Days
after the Closing Date unless the Borrower Agent, on behalf of
itself and the Cayman Borrower, has delivered to the Administrative
Agent a letter in form and substance reasonably satisfactory to the
Administrative Agent indemnifying the Lenders in the manner set
forth in Section 4.9 of this
Agreement) and (ii) any Swingline Loan shall bear interest at
the Base Rate plus
the Applicable Margin. The Borrowers shall select the rate of
interest and Interest Period, if any, applicable to any Loan at the
time a Notice of Borrowing is given or at the time a Notice of
Conversion/Continuation is given pursuant to Section 4.2.
(b) Default Rate. Subject to
Section 9.3,
(i) immediately upon the occurrence and during the continuance
of an Event of Default under Section 9.1(a),
(b), (i) or (j), or (ii) at the
election of the Required Lenders (or the Administrative Agent at
the direction of the Required Lenders), upon the occurrence and
during the continuance of any other Event of Default, (A) the
Borrowers shall no longer have the option to request LIBOR Rate
Loans, Swingline Loans or Letters of Credit, (B) all
outstanding LIBOR Rate Loans shall bear interest at a rate per
annum of two percent (2%) in excess of the rate (including the
Applicable Margin) then applicable to LIBOR Rate Loans until the
end of the applicable Interest Period and thereafter at a rate
equal to two percent (2%) in excess of the rate (including the
Applicable Margin) then applicable to Base Rate Loans, (C) all
outstanding Base Rate Loans, Swingline Loans and other Obligations
arising hereunder or under any other Loan Document shall bear
interest at a rate per annum equal to two percent (2%) in excess of
the rate (including the Applicable Margin) then applicable to Base
Rate Loans or such other Obligations arising hereunder or under any
other Loan Document and (D) all accrued and unpaid interest shall
be due and payable on demand of the Administrative Agent. Interest
shall continue to accrue on the Obligations after the filing by or
against either Borrower of any petition seeking any relief in
bankruptcy or under any Debtor Relief Law.
-39-
(c) Interest Payment and
Computation. Interest on each Base Rate Loan shall be due
and payable in arrears on the last Business Day of each calendar
quarter commencing March 31, 2018; and interest on each LIBOR Rate
Loan shall be due and payable on the last day of each Interest
Period applicable thereto, and if such Interest Period extends over
three (3) months, at the end of each three (3) month interval
during such Interest Period. All computations of interest for Base
Rate Loans when the Base Rate is determined by the Prime Rate shall
be made on the basis of a year of 365 or 366 days, as the case may
be, and actual days elapsed. All other computations of fees and
interest provided hereunder shall be made on the basis of a 360-day
year and actual days elapsed (which results in more fees or
interest, as applicable, being paid than if computed on the basis
of a 365/366-day year).
(d) Maximum Rate. In no contingency
or event whatsoever shall the aggregate of all amounts deemed
interest under this Agreement charged or collected pursuant to the
terms of this Agreement exceed the highest rate permissible under
any Applicable Law which a court of competent jurisdiction shall,
in a final determination, deem applicable hereto. In the event that
such a court determines that the Lenders have charged or received
interest hereunder in excess of the highest applicable rate, the
rate in effect hereunder shall automatically be reduced to the
maximum rate permitted by Applicable Law and the Lenders shall at
the Administrative Agent’s option (i) promptly refund to
the applicable Borrower any interest received by the Lenders in
excess of the maximum lawful rate or (ii) apply such excess to
the principal balance of the Obligations. It is the intent hereof
that the Borrowers not pay or contract to pay, and that neither the
Administrative Agent nor any Lender receive or contract to receive,
directly or indirectly in any manner whatsoever, interest in excess
of that which may be paid by the applicable Borrower under
Applicable Law.
SECTION
4.2 Notice and Manner of Conversion or
Continuation of Loans. Provided that no Default or Event of
Default has occurred and is then continuing, the Borrower Agent, on
behalf of itself and the Cayman Borrower, shall have the option to
(a) convert at any time following the third Business Day after
the Closing Date all or any portion of any outstanding Base Rate
Loans (other than Swingline Loans) in a principal amount equal to
$5,000,000 or any whole multiple of $1,000,000 in excess thereof
into one or more LIBOR Rate Loans and (b) upon the expiration
of any Interest Period, (i) convert all or any part of its
outstanding LIBOR Rate Loans in a principal amount equal to
$3,000,000 or a whole multiple of $1,000,000 in excess thereof into
Base Rate Loans (other than Swingline Loans) or (ii) continue
such LIBOR Rate Loans as LIBOR Rate Loans. Whenever either Borrower
desires to convert or continue Loans as provided above, the
Borrower Agent, on behalf of itself or the Cayman Borrower, shall
give the Administrative Agent irrevocable prior written notice in
the form attached as Exhibit E (a
“Notice of
Conversion/Continuation”) not later than 11:00 a.m.
three (3) Business Days before the day on which a proposed
conversion or continuation of such Loan is to be effective
specifying (A) the Loans to be converted or continued, and, in
the case of any LIBOR Rate Loan to be converted or continued, the
last day of the Interest Period therefor, (B) the effective
date of such conversion or continuation (which shall be a Business
Day), (C) the principal amount of such Loans to be converted
or continued, and (D) the Interest Period to be applicable to
such converted or continued LIBOR Rate Loan. If the Borrower Agent
fails to give a timely Notice of Conversion/Continuation prior to
the end of the Interest Period for any LIBOR Rate Loan, then the
applicable LIBOR Rate Loan shall be converted to a Base Rate Loan.
Any such automatic conversion to a Base Rate Loan shall be
effective as of the last day of the Interest Period then in effect
with respect to the applicable LIBOR Rate Loan. If the Borrower
Agent requests a conversion to, or continuation of, LIBOR Rate
Loans, but fails to specify an Interest Period, it will be deemed
to have specified an Interest Period of one month. Notwithstanding
anything to the contrary herein, a Swingline Loan may not be
converted to a LIBOR Rate Loan. The Administrative Agent shall
promptly notify the affected Lenders of such Notice of
Conversion/Continuation.
SECTION
4.3 Fees.
(a) Commitment Fee. Commencing on
the Closing Date, subject to Section 4.14(a)(iii)(A),
the Borrowers shall pay to the Administrative Agent, for the
account of the Revolving Credit Lenders, a non-refundable
commitment fee (the “Commitment Fee”) at a
rate per annum equal to the Applicable Margin on the average daily
unused portion of the Revolving Credit Commitment of the Revolving
Credit Lenders (other than the Defaulting Lenders, if any);
provided, that the
amount of outstanding Swingline Loans shall not be considered usage
of the Revolving Credit Commitment, and outstanding L/C Obligations
shall be considered usage of the Revolving Credit Commitment, for
the purpose of calculating the Commitment Fee. The Commitment Fee
shall be payable in arrears on the last Business Day of each
calendar quarter during the term of this Agreement commencing March
31, 2018 and ending on the date upon which all Obligations (other
than contingent indemnification obligations not then due) arising
under the Revolving Credit Facility shall have been indefeasibly
and irrevocably paid and satisfied in full, all Letters of Credit
have been terminated or expired (or been Cash Collateralized or
other arrangements with respect thereto have been made that are
satisfactory to the Issuing Lender) and the Revolving Credit
Commitment has been terminated. The Commitment Fee shall be
distributed by the Administrative Agent to the Revolving Credit
Lenders (other than any Defaulting Lender) pro rata in accordance with such
Revolving Credit Lenders’ respective Revolving Credit
Commitment Percentages.
-40-
(b) Other Fees. The Borrowers shall
pay to ▇▇▇▇▇ Fargo Securities, LLC, the Administrative Agent and
the Lenders, for their own respective accounts, fees as shall have
been separately agreed upon in writing in the amounts and at the
times so specified.
SECTION
4.4 Manner of Payment. Each payment
by the Borrowers on account of the principal of or interest on the
Loans or of any fee, commission or other amounts (including the
Reimbursement Obligation) payable to the Lenders under this
Agreement shall be made not later than 1:00 p.m. on the date
specified for payment under this Agreement to the Administrative
Agent at the Administrative Agent’s Office for the account of
the Lenders entitled to such payment in Dollars, in immediately
available funds and shall be made without any setoff, counterclaim
or deduction whatsoever. Any payment received after such time but
before 2:00 p.m. on such day shall be deemed a payment on such date
for the purposes of Section 9.1, but for all
other purposes shall be deemed to have been made on the next
succeeding Business Day. Any payment received after 2:00 p.m. shall
be deemed to have been made on the next succeeding Business Day for
all purposes. Upon receipt by the Administrative Agent of each such
payment, the Administrative Agent shall distribute to each such
Lender at its address for notices set forth herein its pro rata share in respect of the relevant
Credit Facility (or other applicable share as provided herein) of
such payment and shall wire advice of the amount of such credit to
each Lender. Each payment to the Administrative Agent on account of
the principal of or interest on the Swingline Loans or of any fee,
commission or other amounts payable to the Swingline Lender shall
be made in like manner, but for the account of the Swingline
Lender. Each payment to the Administrative Agent of the Issuing
Lender’s fees or L/C Participants’ commissions shall be
made in like manner, but for the account of the Issuing Lender or
the L/C Participants, as the case may be. Each payment to the
Administrative Agent of Administrative Agent’s fees or
expenses shall be made for the account of the Administrative Agent
and any amount payable to any Lender under Sections 4.9, 4.10, 4.11 or 11.3 shall be paid to the
Administrative Agent for the account of the applicable Lender.
Subject to the definition of Interest Period, if any payment under
this Agreement shall be specified to be made upon a day which is
not a Business Day, it shall be made on the next succeeding day
which is a Business Day and such extension of time shall in such
case be included in computing any interest if payable along with
such payment. Notwithstanding the foregoing, if there exists a
Defaulting Lender each payment by the Borrowers to such Defaulting
Lender hereunder shall be applied in accordance with Section 4.14(a)(ii).
SECTION
4.5 Evidence of
Indebtedness.
(a) Extensions of Credit. The
Extensions of Credit made by each Lender and the Issuing Lender
shall be evidenced by one or more accounts or records maintained by
such Lender or the Issuing Lender and by the Administrative Agent
in the ordinary course of business. The accounts or records
maintained by the Administrative Agent and each Lender or the
Issuing Lender shall be conclusive absent manifest error of the
amount of the Extensions of Credit made by the Lenders or the
Issuing Lender to the Borrowers and the interest and payments
thereon. Any failure to so record or any error in doing so shall
not, however, limit or otherwise affect the obligation of the
Borrowers hereunder to pay any amount owing with respect to the
Obligations. In the event of any conflict between the accounts and
records maintained by any Lender or the Issuing Lender and the
accounts and records of the Administrative Agent in respect of such
matters, the accounts and records of the Administrative Agent shall
control in the absence of manifest error. Upon the request of any
▇▇▇▇▇▇ made through the Administrative Agent, the Borrowers shall
execute and deliver to such Lender (through the Administrative
Agent) a Revolving Credit Note, Term Loan Note and/or Swingline
Note, as applicable, which shall evidence such Lender’s
Revolving Credit Loans, Term Loan Note and/or Swingline Loans, as
applicable, in addition to such accounts or records. Each Lender
may attach schedules to its Notes and endorse thereon the date,
amount and maturity of its Loans and payments with respect
thereto.
(b) Participations. In addition to
the accounts and records referred to in subsection (a), each
Revolving Credit Lender and the Administrative Agent shall maintain
in accordance with its usual practice accounts or records
evidencing the purchases and sales by such Revolving Credit Lender
of participations in Letters of Credit and Swingline Loans. In the
event of any conflict between the accounts and records maintained
by the Administrative Agent and the accounts and records of any
Revolving Credit Lender in respect of such matters, the accounts
and records of the Administrative Agent shall control in the
absence of manifest error.
-41-
SECTION
4.6 Sharing of Payments by ▇▇▇▇▇▇▇.
If any Lender shall, by exercising any right of setoff or
counterclaim or otherwise, obtain payment in respect of any
principal of or interest on any of its Loans or other obligations
hereunder resulting in such ▇▇▇▇▇▇’s receiving payment of a
proportion of the aggregate amount of its Loans and accrued
interest thereon or other such obligations (other than pursuant to
Sections 4.9,
4.10, 4.11 or 11.3) greater than its
pro rata share thereof as provided
herein, then the Lender receiving such greater proportion shall
(a) notify the Administrative Agent of such fact, and
(b) purchase (for cash at face value) participations in the
Loans and such other obligations of the other Lenders, or make such
other adjustments as shall be equitable, so that the benefit of all
such payments shall be shared by the Lenders ratably in accordance
with the aggregate amount of principal of and accrued interest on
their respective Loans and other amounts owing them; provided that:
(i) if any such
participations are purchased and all or any portion of the payment
giving rise thereto is recovered, such participations shall be
rescinded and the purchase price restored to the extent of such
recovery, without interest, and
(ii) the
provisions of this paragraph shall not be construed to apply to
(A) any payment made by the Borrowers pursuant to and in
accordance with the express terms of this Agreement (including the
application of funds arising from the existence of a Defaulting
Lender), (B) the application of Cash Collateral provided for in
Section 4.13
or (C) any payment obtained by a Lender as consideration for
the assignment of or sale of a participation in any of its Loans or
participations in Swingline Loans and Letters of Credit to any
assignee or participant, other than to the Parent Borrower or any
of its Subsidiaries or Affiliates (as to which the provisions of
this paragraph shall apply).
Each
Credit Party consents to the foregoing and agrees, to the extent it
may effectively do so under Applicable Law, that any Lender
acquiring a participation pursuant to the foregoing arrangements
may exercise against each Credit Party rights of setoff and
counterclaim with respect to such participation as fully as if such
Lender were a direct creditor of each Credit Party in the amount of
such participation.
SECTION
4.7 Administrative Agent’s
Clawback.
(a) Funding by ▇▇▇▇▇▇▇; Presumption by
Administrative Agent. Unless the Administrative Agent shall
have received notice from a Lender (i) in the case of Base Rate
Loans, not later than 12:00 noon on the date of any proposed
borrowing and (ii) otherwise, prior to the proposed date of any
borrowing that such Lender will not make available to the
Administrative Agent such ▇▇▇▇▇▇’s share of such borrowing,
the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with Sections 2.3(b) and
2.9 and may, in
reliance upon such assumption, make available to the Borrowers a
corresponding amount. In such event, if a Lender has not in fact
made its share of the applicable borrowing available to the
Administrative Agent, then the applicable Lender and the Borrowers
severally agree to pay to the Administrative Agent forthwith on
demand such corresponding amount with interest thereon, for each
day from and including the date such amount is made available to
the Borrowers to but excluding the date of payment to the
Administrative Agent, at (A) in the case of a payment to be
made by such Lender, the greater of the daily average Federal Funds
Rate and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation
and (B) in the case of a payment to be made by the Borrowers,
the interest rate applicable to Base Rate Loans. If the Borrowers
and such Lender shall pay such interest to the Administrative Agent
for the same or an overlapping period, the Administrative Agent
shall promptly remit to the Borrowers the amount of such interest
paid by the Borrowers for such period. If such Lender pays its
share of the applicable borrowing to the Administrative Agent, then
the amount so paid shall constitute such Lender’s Loan
included in such borrowing. Any payment by either Borrower shall be
without prejudice to any claim such Borrower may have against a
Lender that shall have failed to make such payment to the
Administrative Agent.
-42-
(b) Payments by the Borrowers;
Presumptions by Administrative Agent. Unless the
Administrative Agent shall have received notice from the Borrower
Agent prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders, the Issuing
Lender or the Swingline Lender hereunder that the Borrowers will
not make such payment, the Administrative Agent may assume that the
Borrowers have made such payment on such date in accordance
herewith and may, in reliance upon such assumption, distribute to
the Lenders, the Issuing Lender or the Swingline Lender, as the
case may be, the amount due. In such event, if the Borrowers have
not in fact made such payment, then each of the Lenders, the
Issuing Lender or the Swingline Lender, as the case maybe,
severally agrees to repay to the Administrative Agent forthwith on
demand the amount so distributed to such Lender, Issuing Lender or
the Swingline Lender, with interest thereon, for each day from and
including the date such amount is distributed to it to but
excluding the date of payment to the Administrative Agent, at the
greater of the Federal Funds Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on
interbank compensation.
(c) Nature of Obligations of Lenders
Regarding Extensions of Credit. The obligations of the
Lenders under this Agreement to make the Loans and issue or
participate in Letters of Credit are several and are not joint or
joint and several. The failure of any Lender to make available its
pro rata share of any Loan requested by either Borrower shall not
relieve it or any other Lender of its obligation, if any, hereunder
to make its pro rata share of
such Loan available on the borrowing date, but no Lender shall be
responsible for the failure of any other Lender to make its
pro rata share of such Loan
available on the borrowing date.
SECTION
4.8 Changed
Circumstances.
(a) Circumstances Affecting LIBOR Rate
Availability. Unless and until a Replacement Rate is
implemented in accordance with clause (c) below, in connection with
any request for a LIBOR Rate Loan or a conversion to or
continuation thereof or otherwise, if for any reason (i) the
Administrative Agent shall determine (which determination shall be
conclusive and binding absent manifest error) that Dollar deposits
are not being offered to banks in the London interbank Eurodollar
market for the applicable amount and Interest Period of such Loan,
(ii) the Administrative Agent shall determine (which determination
shall be conclusive and binding absent manifest error) that
reasonable and adequate means do not exist for the ascertaining the
LIBOR Rate for such Interest Period with respect to a proposed
LIBOR Rate Loan or (iii) the Required Lenders shall determine
(which determination shall be conclusive and binding absent
manifest error) that the LIBOR Rate does not adequately and fairly
reflect the cost to such Lenders of making or maintaining such
Loans during such Interest Period, then the Administrative Agent
shall promptly give notice thereof to the Borrower Agent.
Thereafter, until the Administrative Agent notifies the Borrower
Agent that such circumstances no longer exist, the obligation of
the Lenders to make LIBOR Rate Loans and the right of either
Borrower to convert any Loan to or continue any Loan as a LIBOR
Rate Loan shall be suspended, and each Borrower shall either
(A) repay in full (or cause to be repaid in full) the then
outstanding principal amount of each such LIBOR Rate Loan together
with accrued interest thereon (subject to Section 4.1(d)), on the
last day of the then current Interest Period applicable to such
LIBOR Rate Loan; or (B) convert the then outstanding principal
amount of each such LIBOR Rate Loan to a Base Rate Loan as of the
last day of such Interest Period.
(b) Laws Affecting LIBOR Rate
Availability. If, after the date hereof, the introduction
of, or any change in, any Applicable Law or any change in the
interpretation or administration thereof by any Governmental
Authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any of
the Lenders (or any of their respective Lending Offices) with any
request or directive (whether or not having the force of law) of
any such Governmental Authority, central bank or comparable agency,
shall make it unlawful or impossible for any of the Lenders (or any
of their respective Lending Offices) to honor its obligations
hereunder to make or maintain any LIBOR Rate Loan, such Lender
shall promptly give notice thereof to the Administrative Agent and
the Administrative Agent shall promptly give notice to the Borrower
Agent and the other Lenders. Thereafter, until the Administrative
Agent notifies the Borrower Agent that such circumstances no longer
exist, (i) the obligations of the Lenders to make LIBOR Rate
Loans, and the right of the Borrowers to convert any Loan to a
LIBOR Rate Loan or continue any Loan as a LIBOR Rate Loan shall be
suspended and thereafter the Borrowers may select only Base Rate
Loans and (ii) if any of the Lenders may not lawfully continue
to maintain a LIBOR Rate Loan to the end of the then current
Interest Period applicable thereto, the applicable Loan shall
immediately be converted to a Base Rate Loan for the remainder of
such Interest Period.
-43-
(c) Alternative Rate of Interest.
Notwithstanding anything to the contrary in Section 4.8(a) above, if the
Administrative Agent has made the determination (such determination
to be conclusive absent manifest error) that (i) the circumstances
described in Section
4.8(a)(i) or (a)(ii) have arisen and that
such circumstances are unlikely to be temporary, (ii) any
applicable interest rate specified herein is no longer a widely
recognized benchmark rate for newly originated loans in the U.S.
syndicated loan market in the applicable currency or (iii) the
applicable supervisor or administrator (if any) of any applicable
interest rate specified herein or any Governmental Authority
having, or purporting to have, jurisdiction over the Administrative
Agent has made a public statement identifying a specific date after
which any applicable interest rate specified herein shall no longer
be used for determining interest rates for loans in the U.S.
syndicated loan market in the applicable currency, then the
Administrative Agent may, to the extent practicable (with the
Borrower’s consent, and as determined by the Administrative
Agent to be generally in accordance with similar situations in
other transactions in which it is serving as administrative agent
or otherwise consistent with market practice generally), establish
a replacement interest rate (the “Replacement Rate”), in
which case, the Replacement Rate shall, subject to the next two
sentences, replace such applicable interest rate for all purposes
under the Loan Documents unless and until (A) an event described in
Section 4.8(a)(i),
(a)(ii),
(c)(i),
(c)(ii) or
(c)(iii) occurs
with respect to the Replacement Rate or (B) the Administrative
Agent (or the Required Lenders through the Administrative Agent)
notifies the Borrower that the Replacement Rate does not adequately
and fairly reflect the cost to the Lenders of funding the Loans
bearing interest at the Replacement Rate. In connection with the
establishment and application of the Replacement Rate, this
Agreement and the other Loan Documents shall be amended solely with
the consent of the Administrative Agent and the Borrower, as may be
necessary or appropriate, in the opinion of the Administrative
Agent, to effect the provisions of this Section 4.8(c).
Notwithstanding anything to the contrary in this Agreement or the
other Loan Documents (including, without limitation, Section 11.2), such amendment
shall become effective without any further action or consent of any
other party to this Agreement so long as the Administrative Agent
shall not have received, within five (5) Business Days of the
delivery of such amendment to the Lenders, written notices from
such Lenders that in the aggregate constitute Required Lenders,
with each such notice stating that such Lender objects to such
amendment (which such notice shall note with specificity the
particular provisions of the amendment to which such Lender
objects). To the extent the Replacement Rate is approved by the
Administrative Agent in connection with this clause (c), the
Replacement Rate shall be applied in a manner consistent with
market practice; provided that, in each case, to
the extent such market practice is not administratively feasible
for the Administrative Agent, such Replacement Rate shall be
applied as otherwise reasonably determined by the Administrative
Agent (it being understood that any such modification by the
Administrative Agent shall not require the consent of, or
consultation with, any of the Lenders).
SECTION
4.9 Indemnity. The Borrowers,
jointly and severally (subject to the limitations of Section 11.22), hereby
indemnify each of the Lenders against any loss or expense
(including any loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain a LIBOR Rate Loan
or from fees payable to terminate the deposits from which such
funds were obtained) which may arise or be attributable to each
Lender’s obtaining, liquidating or employing deposits or
other funds acquired to effect, fund or maintain any Loan
(a) as a consequence of any failure by either Borrower to make
any payment when due of any amount due hereunder in connection with
a LIBOR Rate Loan, (b) due to any failure of a Borrower to
borrow or continue a LIBOR Rate Loan or convert to a LIBOR Rate
Loan on a date specified therefor in a Notice of Borrowing or
Notice of Conversion/Continuation or (c) due to any payment,
prepayment or conversion of any LIBOR Rate Loan on a date other
than the last day of the Interest Period therefor. The amount of
such loss or expense shall be determined, in the applicable
Lender’s sole discretion, based upon the assumption that such
Lender funded its LIBOR Rate Loans in the London interbank market
and using any reasonable attribution or averaging methods which
such ▇▇▇▇▇▇ deems appropriate and practical. A certificate of such
Lender setting forth the basis for determining such amount or
amounts necessary to compensate such Lender shall be forwarded to
the Borrower Agent through the Administrative Agent and shall be
conclusively presumed to be correct save for manifest
error.
SECTION
4.10 Increased Costs.
(a) Increased Costs Generally. If
any Change in Law shall:
(i) impose, modify or
deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits
with or for the account of, or advances, loans or other credit
extended or participated in by, any Lender (except any reserve
requirement reflected in the LIBOR Rate) or any Issuing
Lender;
-44-
(ii) subject
any Recipient to any Taxes (other than (A) Indemnified Taxes, (B)
Taxes described in clauses (b) through (d) of the definition of
Excluded Taxes and (C) Connection Income Taxes) on its loans, loan
principal, letters of credit, commitments, or other obligations, or
its deposits, reserves, other liabilities or capital attributable
thereto; or
(iii) impose
on any Lender or the Issuing Lender or the London interbank market
any other condition, cost or expense (other than Taxes) affecting
this Agreement or LIBOR Rate Loans made by such Lender or any
Letter of Credit or participation therein;
and the
result of any of the foregoing shall be to increase the cost to
such Lender, the Issuing Lender or such other Recipient of making,
converting to, continuing or maintaining any Loan (or of
maintaining its obligation to make any such Loan), or to increase
the cost to such Lender, the Issuing Lender or such other Recipient
of participating in, issuing or maintaining any Letter of Credit
(or of maintaining its obligation to participate in or to issue any
Letter of Credit), or to reduce the amount of any sum received or
receivable by such Lender, the Issuing Lender or other Recipient
hereunder (whether of principal, interest or any other amount)
then, upon written request of such Lender, the Issuing Lender or
other Recipient, the Borrowers shall promptly pay to any such
Lender, the Issuing Lender or other Recipient, as the case may be,
such additional amount or amounts as will compensate such Lender,
such Issuing Lender or other Recipient, as the case may be, for
such additional costs incurred or reduction suffered.
(b) Capital Requirements. If any
Lender or the Issuing Lender determines that any Change in Law
affecting such Lender or the Issuing Lender or any Lending Office
of such Lender or such Lender’s or the Issuing Lender’s
holding company, if any, regarding capital or liquidity
requirements, has or would have the effect of reducing the rate of
return on such Lender’s or the Issuing Lender’s capital
or on the capital of such Lender’s or the Issuing
Lender’s holding company, if any, as a consequence of this
Agreement, the Revolving Credit Commitment of such Lender or the
Loans made by, or participations in Letters of Credit or Swingline
Loans held by, such Lender, or the Letters of Credit issued by the
Issuing Lender, to a level below that which such Lender or the
Issuing Lender or such Lender’s or the Issuing Lender’s
holding company could have achieved but for such Change in Law
(taking into consideration such Lender’s or the Issuing
Lender’s policies and the policies of such Lender’s or
the Issuing Lender’s holding company with respect to capital
adequacy or liquidity), then from time to time upon written request
of such Lender or the Issuing Lender the Borrowers shall promptly
pay to such Lender or the Issuing Lender, as the case may be, such
additional amount or amounts as will compensate such Lender or the
Issuing Lender or such Lender’s or the Issuing Lender’s
holding company for any such reduction suffered.
(c) Certificates for Reimbursement.
A certificate of a Lender, the Issuing Lender or such other
Recipient setting forth the amount or amounts necessary to
compensate such Lender or the Issuing Lender, such other Recipient
or any of their respective holding companies, as the case may be,
as specified in paragraph
(a) or (b)
of this Section and delivered to the Borrower Agent, shall be
conclusive absent manifest error. The Borrowers shall pay such
Lender, the Issuing Lender or such other Recipient, as the case may
be, the amount shown as due on any such certificate within ten (10)
days after receipt thereof.
(d) Delay in Requests. Failure or
delay on the part of any Lender, the Issuing Lender or such other
Recipient to demand compensation pursuant to this Section shall not
constitute a waiver of such Lender’s, the Issuing
Lender’s or such other Recipient’s right to demand such
compensation; provided that the Borrowers
shall not be required to compensate any Lender, the Issuing Lender
or any other Recipient pursuant to this Section for any increased
costs incurred or reductions suffered more than six (6) months
prior to the date that such Lender, the Issuing Lender or such
other Recipient, as the case may be, notifies the Borrower Agent of
the Change in Law giving rise to such increased costs or
reductions, and of such Lender’s, the Issuing Lender’s
or such other Recipient’s intention to claim compensation
therefor (except that if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the six-month
period referred to above shall be extended to include the period of
retroactive effect thereof).
-45-
SECTION
4.11 Taxes.
(a) Defined Terms. For purposes of
this Section 4.11, the term
“Lender” includes the Issuing Lender and the term
“Applicable Law” includes FATCA.
(b) Payments Free of Taxes. Any and
all payments by or on account of any obligation of any Credit Party
under any Loan Document shall be made without deduction or
withholding for any Taxes, except as required by Applicable Law. If
any Applicable Law (as determined in the good faith discretion of
an applicable Withholding Agent) requires the deduction or
withholding of any Tax from any such payment by a Withholding
Agent, then the applicable Withholding Agent shall be entitled to
make such deduction or withholding and shall timely pay the full
amount deducted or withheld to the relevant Governmental Authority
in accordance with Applicable Law and, if such Tax is an
Indemnified Tax, then the sum payable by the applicable Credit
Party shall be increased as necessary so that, after such deduction
or withholding has been made (including such deductions and
withholdings applicable to additional sums payable under this
Section), the applicable Recipient receives an amount equal to the
sum it would have received had no such deduction or withholding
been made.
(c) Payment of Other Taxes by the Credit
Parties. The Credit Parties shall timely pay to the relevant
Governmental Authority in accordance with Applicable Law, or at the
option of the Administrative Agent timely reimburse it for the
payment of, any Other Taxes.
(d) Indemnification by the Credit
Parties. The Credit Parties shall jointly and severally
indemnify each Recipient (subject to the limitations of
Section 11.22),
within ten (10) days after demand therefor, for the full amount of
any Indemnified Taxes (including Indemnified Taxes imposed or
asserted on or attributable to amounts payable under this Section)
payable or paid by such Recipient or required to be withheld or
deducted from a payment to such Recipient and any reasonable
expenses arising therefrom or with respect thereto, whether or not
such Indemnified Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as
to the amount of such payment or liability delivered to the
Borrower Agent by a Lender (with a copy to the Administrative
Agent), or by the Administrative Agent on its own behalf or on
behalf of a Lender, shall be conclusive absent manifest
error.
(e) Indemnification by the Lenders.
Each Lender and each Issuing Lender shall severally indemnify the
Administrative Agent and the Credit Parties (with respect to
clauses (ii) and
(iii) below),
within ten (10) Business Days after written demand therefor, for
(i) any Indemnified Taxes attributable to such Lender (but only to
the extent that any Credit Party has not already indemnified the
Administrative Agent for such Indemnified Taxes and without
limiting the obligation of the Credit Parties to do so), (ii) any
Taxes attributable to such ▇▇▇▇▇▇’s failure to comply with
the provisions of Section 11.9(d) relating
to the maintenance of a Participant Register and (iii) any Excluded
Taxes attributable to such Lender, in each case, that are payable
or paid by the Administrative Agent or any Credit Party, as the
case may be, in connection with any Loan Document, and any
reasonable expenses arising therefrom or with respect thereto,
whether or not such Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as
to the amount of such payment or liability delivered to any Lender
by the Administrative Agent shall be conclusive absent manifest
error. Each Lender hereby authorizes the Administrative Agent to
setoff and apply any and all amounts at any time owing to such
Lender under any Loan Document or otherwise payable by the
Administrative Agent to the Lender from any other source against
any amount due to the Administrative Agent under this paragraph (e). The agreements
in this paragraph
(e) shall survive the resignation and/or replacement of the
Administrative Agent.
(f) Evidence of Payments. As soon
as practicable after any payment of Taxes by any Credit Party to a
Governmental Authority pursuant to this Section 4.11, such Credit
Party shall deliver to the Administrative Agent the original or a
certified copy of a receipt issued by such Governmental Authority
evidencing such payment, a copy of the return reporting such
payment or other evidence of such payment reasonably satisfactory
to the Administrative Agent.
-46-
(g) Status of Lenders.
(i) Any Lender that is
entitled to an exemption from or reduction of withholding Tax with
respect to payments made under any Loan Document shall deliver to
the Borrower Agent and the Administrative Agent, at the time or
times reasonably requested by the Borrowers or the Administrative
Agent, such properly completed and executed documentation
reasonably requested by the Borrowers or the Administrative Agent
as will permit such payments to be made without withholding or at a
reduced rate of withholding. In addition, any Lender, if reasonably
requested by the Borrowers or the Administrative Agent, shall
deliver such other documentation prescribed by Applicable Law or
reasonably requested by the Borrowers or the Administrative Agent
as will enable the Borrowers or the Administrative Agent to
determine whether or not such Lender is subject to backup
withholding or information reporting requirements. Notwithstanding
anything to the contrary in the preceding two sentences, the
completion, execution and submission of such documentation (other
than such documentation set forth in Section 4.11(g)(ii)(A),
(ii)(B) and
(ii)(D) below)
shall not be required if in the Lender’s reasonable judgment
such completion, execution or submission would subject such Lender
to any material unreimbursed cost or expense or would materially
prejudice the legal or commercial position of such
Lender.
(ii) Without
limiting the generality of the foregoing:
(A) (i) Any Lender that
is a U.S. Person shall deliver to the Borrower Agent and the
Administrative Agent on or prior to the date on which such Lender
becomes a Lender under this Agreement (and from time to time
thereafter upon the reasonable request of the Borrower Agent or the
Administrative Agent), executed originals or copies of IRS Form W-9
certifying that such Lender is exempt from United States federal
backup withholding tax and (ii) if the Administrative Agent is a
U.S. Person, it shall deliver to the Borrower Agent on or prior to
the date on which the Administrative Agent becomes the
Administrative Agent under this Agreement (and from time to time
thereafter upon the reasonable request of the Borrower Agent) an
executed original or copy of IRS Form W-9 certifying that the
Administrative Agent is exempt from United States federal backup
withholding tax;
(B) any Foreign Lender
shall, to the extent it is legally entitled to do so, deliver to
the Borrower Agent and the Administrative Agent (in such number of
copies as shall be requested by the recipient) on or prior to the
date on which such Foreign Lender becomes a Lender under this
Agreement (and from time to time thereafter upon the reasonable
request of the Borrower Agent or the Administrative Agent),
whichever of the following is applicable:
(1) in
the case of a Foreign Lender claiming the benefits of an income tax
treaty to which the United States is a party (x) with respect to
payments of interest under any Loan Document, executed originals or
copies of IRS Form W-8BEN-E (or any successor form), as applicable,
establishing an exemption from, or reduction of, United States
federal withholding Tax pursuant to the “interest”
article of such tax treaty and (y) with respect to any other
applicable payments under any Loan Document, IRS Form W-8BEN-E (or
any successor form), establishing an exemption from, or reduction
of, United States federal withholding Tax pursuant to the
“business profits” or “other income”
article of such tax treaty;
(2) executed
originals or copies of IRS Form W-8ECI;
(3) in
the case of a Foreign Lender claiming the benefits of the exemption
for portfolio interest under Section 881(c) of the Code, (x) a
certificate substantially in the form of Exhibit H-1 to the effect that
such Foreign Lender is not a “bank” within the meaning
of Section 881(c)(3)(A) of the Code, a “10 percent
shareholder” of either Borrower within the meaning of
Section 881(c)(3)(B) of the Code, or a “controlled
foreign corporation” described in Section 881(c)(3)(C)
of the Code (a “U.S.
Tax Compliance Certificate”) and (y) executed
originals or copies of IRS Form W-8BEN-E (or any successor form),;
or
-47-
(4) to
the extent a Foreign Lender is not the beneficial owner, executed
originals or copies of IRS Form W-8IMY, accompanied by IRS Form
W-8ECI, IRS Form W-8BEN-E (or any successor form), a U.S. Tax
Compliance Certificate substantially in the form of Exhibit H-2 or Exhibit H-3, IRS Form W-9,
and/or other certification documents from each beneficial owner, as
applicable; provided that if the Foreign
Lender is a partnership and one or more direct or indirect partners
of such Foreign Lender are claiming the portfolio interest
exemption, such Foreign Lender may provide a U.S. Tax Compliance
Certificate substantially in the form of Exhibit H-4 on behalf of each
such direct and indirect partner;
(C) any Foreign Lender
shall, to the extent it is legally entitled to do so, deliver to
the Borrower Agent and the Administrative Agent (in such number of
copies as shall be requested by the recipient) on or prior to the
date on which such Foreign Lender becomes a Lender under this
Agreement (and from time to time thereafter upon the reasonable
request of the Borrower Agent or the Administrative Agent),
executed originals or copies of any other form prescribed by
Applicable Law as a basis for claiming exemption from or a
reduction in United States federal withholding Tax, or if
applicable, any foreign withholding Tax, duly completed, together
with such supplementary documentation as may be prescribed by
Applicable Law to permit the Borrowers or the Administrative Agent
to determine the withholding or deduction required to be made;
and
(D) if a payment made
to a Lender under any Loan Document would be subject to United
States federal withholding Tax imposed by FATCA if such Lender were
to fail to comply with the applicable reporting requirements of
FATCA (including those contained in Section 1471(b) or 1472(b)
of the Code, as applicable), such Lender shall deliver to the
Borrower Agent and the Administrative Agent at the time or times
prescribed by law and at such time or times reasonably requested by
the Borrowers or the Administrative Agent such documentation
prescribed by Applicable Law (including as prescribed by
Section 1471(b)(3)(C)(i) of the Code) and such additional
documentation reasonably requested by the Borrowers or the
Administrative Agent as may be necessary for the Borrowers and the
Administrative Agent to comply with their obligations under FATCA
and to determine that such Lender has complied with such
▇▇▇▇▇▇’s obligations under FATCA or to determine the amount
to deduct and withhold from such payment. Solely for purposes of
this clause (D),
“FATCA” shall include any amendments made to FATCA
after the date of this Agreement.
Each
Lender agrees that if any form or certification it previously
delivered expires or becomes obsolete or inaccurate in any respect,
it shall update such form or certification or promptly notify the
Borrower Agent and the Administrative Agent in writing of its legal
inability to do so.
(h) Treatment of Certain Refunds.
If any party determines, in its sole discretion exercised in good
faith, that it has received a refund of any Taxes as to which it
has been indemnified pursuant to this Section 4.11 (including by
the payment of additional amounts pursuant to this Section 4.11), it shall
pay to the indemnifying party an amount equal to such refund (but
only to the extent of indemnity payments made under this Section
with respect to the Taxes giving rise to such refund), net of all
out-of-pocket expenses (including Taxes) of such indemnified party
and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund). Such
indemnifying party, upon the request of such indemnified party,
shall repay to such indemnified party the amount paid over pursuant
to this paragraph
(h) (plus any penalties, interest or other charges imposed
by the relevant Governmental Authority) in the event that such
indemnified party is required to repay such refund to such
Governmental Authority. Notwithstanding anything to the contrary in
this paragraph (h),
in no event will the indemnified party be required to pay any
amount to an indemnifying party pursuant to this paragraph (h) the payment of
which would place the indemnified party in a less favorable net
after-Tax position than the indemnified party would have been in if
the Tax subject to indemnification and giving rise to such refund
had not been deducted, withheld or otherwise imposed and the
indemnification payments or additional amounts with respect to such
Tax had never been paid. This paragraph shall not be construed to
require any indemnified party to make available its Tax returns (or
any other information relating to its Taxes that it deems
confidential) to the indemnifying party or any other
Person.
-48-
(i) Survival. Each party’s
obligations under this Section 4.11 shall survive
the resignation or replacement of the Administrative Agent or any
assignment of rights by, or the replacement of, a Lender, the
termination of the Revolving
Credit Commitments and the repayment, satisfaction or
discharge of all obligations under any Loan Document.
SECTION
4.12 Mitigation Obligations; Replacement of
Lenders.
(a) Designation of a Different Lending
Office. If any Lender requests compensation under
Section 4.10,
or requires either Borrower to pay any Indemnified Taxes or
additional amounts to any Lender or any Governmental Authority for
the account of any Lender pursuant to Section 4.11, then such
Lender shall, at the request of the Borrowers, use reasonable
efforts to designate a different Lending Office for funding or
booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in
the judgment of such Lender, such designation or assignment
(i) would eliminate or reduce amounts payable pursuant to
Section 4.10
or Section 4.11, as the case
may be, in the future and (ii) would not subject such Lender
to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender. The Borrowers hereby agree to pay
all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) Replacement of Lenders. If any
Lender requests compensation under Section 4.10, or if the
Borrowers are required to pay any Indemnified Taxes or additional
amounts to any Lender or any Governmental Authority for the account
of any Lender pursuant to Section 4.11, and, in each
case, such Lender has declined or is unable to designate a
different Lending Office in accordance with Section 4.12(a), or if any
Lender is a Defaulting Lender or a Non-Consenting Lender, then the
Borrowers may, at their sole expense and effort, upon notice to
such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse (in accordance with and
subject to the restrictions contained in, and consents required by,
Section 11.9),
all of its interests, rights (other than its existing rights to
payments pursuant to Section 4.10 or
Section 4.11)
and obligations under this Agreement and the related Loan Documents
to an Eligible Assignee that shall assume such obligations (which
assignee may be another Lender, if a Lender accepts such
assignment); provided that:
(i) the Borrowers shall
have paid to the Administrative Agent the assignment fee (if any)
specified in Section 11.9;
(ii) such
Lender shall have received payment of an amount equal to the
outstanding principal of its Loans and participations in Letters of
Credit, accrued interest thereon, accrued fees and all other
amounts payable to it hereunder and under the other Loan Documents
(including any amounts under Section 4.9) from the
assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Borrowers (in the case of all other
amounts);
(iii) in
the case of any such assignment resulting from a claim for
compensation under Section 4.10 or payments
required to be made pursuant to Section 4.11, such
assignment will result in a reduction in such compensation or
payments thereafter;
(iv) such
assignment does not conflict with Applicable Law; and
(v) in the case of any
assignment resulting from a Lender becoming a Non-Consenting
Lender, the applicable assignee shall have consented to the
applicable amendment, waiver or consent.
A
Lender shall not be required to make any such assignment or
delegation if, prior thereto, as a result of a waiver by such
Lender or otherwise, the circumstances entitling the Borrowers to
require such assignment and delegation cease to apply.
(c) Selection of a Lending Office.
Subject to Section
4.12(a), each Lender may make any Loan to a Borrower through
any Lending Office; provided that the exercise of
this option shall not affect the obligations of such Borrower to
repay the Loan in accordance with the terms of this Agreement or
otherwise alter the rights of the parties hereto.
-49-
SECTION
4.13 Cash Collateral. At any time
that there shall exist a Defaulting Lender, within one Business Day
following the written request of the Administrative Agent, the
Issuing Lender or the Swingline Lender, the Borrowers shall Cash
Collateralize the Fronting Exposure of the Issuing Lender and/or
the Swingline Lender, as applicable, with respect to such
Defaulting Lender (determined after giving effect to Section 4.14(a)(iv) and
any Cash Collateral provided by such Defaulting Lender) in an
amount not less than the Minimum Collateral Amount.
(a) Grant of Security Interest. The
Borrowers, and to the extent provided by any Defaulting Lender,
such Defaulting Lender, hereby grants to the Administrative Agent,
for the benefit of the Issuing Lender and the Swingline Lender, and
agrees to maintain, a first priority security interest in all such
Cash Collateral as security for the Defaulting Lender’s
obligation to fund participations in respect of L/C Obligations and
Swingline Loans, to be applied pursuant to subsection (b) below. If at any
time the Administrative Agent determines that Cash Collateral is
subject to any right or claim of any Person other than the
Administrative Agent, the Issuing Lender and the Swingline Lender
as herein provided (other than pursuant to Section 8.2(j)), or that the
total amount of such Cash Collateral is less than the Minimum
Collateral Amount, the Borrowers will, promptly upon demand by the
Administrative Agent, pay or provide to the Administrative Agent
additional Cash Collateral in an amount sufficient to eliminate
such deficiency (after giving effect to any Cash Collateral
provided by the Defaulting Lender).
(b) Application. Notwithstanding
anything to the contrary contained in this Agreement, Cash
Collateral provided under this Section 4.13 or
Section 4.14
in respect of Letters of Credit and Swingline Loans shall be
applied to the satisfaction of the Defaulting Lender’s
obligation to fund participations in respect of L/C Obligations and
Swingline Loans (including, as to Cash Collateral provided by a
Defaulting Lender, any interest accrued on such obligation) for
which the Cash Collateral was so provided, prior to any other
application of such property as may otherwise be provided for
herein.
(c) Termination of Requirement.
Cash Collateral (or the appropriate portion thereof) provided to
reduce the Fronting Exposure of the Issuing Lender and/or the
Swingline Lender, as applicable, shall no longer be required to be
held as Cash Collateral pursuant to this Section 4.13 following (i)
the elimination of the applicable Fronting Exposure (including by
the termination of Defaulting Lender status of the applicable
Lender), or (ii) the determination by the Administrative Agent, the
Issuing Lender and the Swingline Lender that there exists excess
Cash Collateral; provided that, subject to
Section 4.14,
the Person providing Cash Collateral, the Issuing Lender and the
Swingline Lender may agree that Cash Collateral shall be held to
support future anticipated Fronting Exposure or other obligations;
and provided
further that to the
extent that such Cash Collateral was provided by the Borrowers,
such Cash Collateral shall remain subject to the security interest
granted pursuant to the Loan Documents.
SECTION
4.14 Defaulting
Lenders.
(a) Defaulting Lender Adjustments.
Notwithstanding anything to the contrary contained in this
Agreement, if any Lender becomes a Defaulting Lender, then, until
such time as such Lender is no longer a Defaulting Lender, to the
extent permitted by Applicable Law:
(i) Waivers and Amendments. Such
Defaulting ▇▇▇▇▇▇’s right to approve or disapprove any
amendment, waiver or consent with respect to this Agreement shall
be restricted as set forth in the definition of Required Lenders
and Section 11.2.
(ii) Defaulting
Lender Waterfall. Any payment of principal, interest, fees
or other amounts received by the Administrative Agent for the
account of such Defaulting Lender (whether voluntary or mandatory,
at maturity, pursuant to Article IX or otherwise) or
received by the Administrative Agent from a Defaulting Lender
pursuant to Section 11.4 shall be
applied at such time or times as may be determined by the
Administrative Agent as follows: first, to
the payment of any amounts owing by such Defaulting Lender to the
Administrative Agent hereunder; second, to
the payment on a pro rata basis of any amounts owing
by such Defaulting Lender to the Issuing Lender or the Swingline
Lender hereunder; third, to
Cash Collateralize the Fronting Exposure of the Issuing Lender and
the Swingline Lender with respect to such
-50-
Defaulting Lender
in accordance with Section 4.13; fourth, as
the Borrowers may request (so long as no Default or Event of
Default exists), to the funding of any Loan or funded participation
in respect of which such Defaulting Lender has failed to fund its
portion thereof as required by this Agreement, as determined by the
Administrative Agent; fifth, if
so determined by the Administrative Agent and the Borrowers, to be
held in a deposit account and released pro rata in order to (A) satisfy
such Defaulting Lender’s potential future funding obligations
with respect to Loans and funded participations under this
Agreement and (B) Cash Collateralize the Issuing Lender’s
future Fronting Exposure with respect to such Defaulting Lender
with respect to future Letters of Credit issued under this
Agreement, in accordance with Section 4.13; sixth, to
the payment of any amounts owing to the Lenders, the Issuing Lender
or the Swingline Lender as a result of any judgment of a court of
competent jurisdiction obtained by any Lender, the Issuing Lender
or the Swingline Lender against such Defaulting Lender as a result
of such Defaulting Lender’s breach of its obligations under
this Agreement; seventh, so
long as no Default or Event of Default exists, to the payment of
any amounts owing to either Borrower as a result of any judgment of
a court of competent jurisdiction obtained by such Borrower against
such Defaulting Lender as a result of such Defaulting Lender's
breach of its obligations under this Agreement; and eighth, to
such Defaulting Lender or as otherwise directed by a court of
competent jurisdiction; provided that if (1) such
payment is a payment of the principal amount of any Loans or funded
participations in Letters of Credit or Swingline Loans in respect
of which such Defaulting Lender has not fully funded its
appropriate share, and (2) such Loans were made or the related
Letters of Credit or Swingline Loans were issued at a time when the
conditions set forth in Section 5.2 were satisfied
or waived, such payment shall be applied solely to pay the Loans
of, and funded participations in Letters of Credit or Swingline
Loans owed to, all Non-Defaulting Lenders on a pro rata basis prior to being
applied to the payment of any Loans of, or funded participations in
Letters of Credit or Swingline Loans owed to, such Defaulting
Lender until such time as all Loans and funded and unfunded
participations in L/C Obligations and Swingline Loans are held by
the Lenders pro
rata in accordance
with the Revolving Credit Commitments under the applicable
Revolving Credit Facility without giving effect to Section 4.14(a)(iv). Any
payments, prepayments or other amounts paid or payable to a
Defaulting Lender that are applied (or held) to pay amounts owed by
a Defaulting Lender or to post Cash Collateral pursuant to this
Section 4.14(a)(ii) shall
be deemed paid to and redirected by such Defaulting Lender, and
each Lender irrevocably consents hereto.
(iii) Certain
Fees.
(A) No Defaulting
Lender shall be entitled to receive any Commitment Fee for any
period during which that Lender is a Defaulting Lender (and the
Borrowers shall not be required to pay any such fee that otherwise
would have been required to have been paid to that Defaulting
Lender).
(B) Each Defaulting
Lender shall be entitled to receive letter of credit commissions
pursuant to Section 3.3 for any period
during which that Lender is a Defaulting Lender only to the extent
allocable to its Revolving Credit Commitment Percentage of the
stated amount of Letters of Credit for which it has provided Cash
Collateral pursuant to Section 4.13.
(C) With respect to any
Commitment Fee or letter of credit commission not required to be
paid to any Defaulting Lender pursuant to clause (A) or (B) above, the Borrowers shall
(1) pay to each Non-Defaulting Lender that portion of any such fee
otherwise payable to such Defaulting Lender with respect to such
Defaulting Lender’s participation in L/C Obligations or
Swingline Loans that has been reallocated to such Non-Defaulting
Lender pursuant to clause
(iv) below, (2) pay to the Issuing Lender and Swingline
Lender, as applicable, the amount of any such fee otherwise payable
to such Defaulting Lender to the extent allocable to the Issuing
Lender’s or Swingline Lender’s Fronting Exposure to
such Defaulting Lender, and (3) not be required to pay the
remaining amount of any such fee.
-51-
(iv) Reallocation
of Participations to Reduce Fronting Exposure. All or any
part of such Defaulting Lender’s participation in L/C
Obligations and Swingline Loans shall be reallocated among the
Non-Defaulting Lenders in accordance with their respective
Revolving Credit Commitment Percentages (calculated without regard
to such Defaulting Lender’s Revolving Credit Commitment) but
only to the extent that (x) the conditions set forth in
Section 5.2
are satisfied at the time of such reallocation (and, unless the
Borrower Agent shall have otherwise notified the Administrative
Agent at such time, the Borrowers shall be deemed to have
represented and warranted that such conditions are satisfied at
such time), and (y) such reallocation does not cause the aggregate
Revolving Credit Exposure of any Non-Defaulting Lender to exceed
such Non-Defaulting Lender’s Revolving Credit Commitment.
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 ▇▇▇▇▇▇ having become a Defaulting Lender,
including any claim of a Non-Defaulting Lender as a result of such
Non-Defaulting ▇▇▇▇▇▇’s increased exposure following such
reallocation.
(v) Cash Collateral, Repayment of
Swingline Loans. If the reallocation described in
clause (iv) above
cannot, or can only partially, be effected, the Borrowers shall,
without prejudice to any right or remedy available to it hereunder
or under law, (x) first, repay Swingline Loans in
an amount equal to the Swingline Lender’s Fronting Exposure
and (y) second,
Cash Collateralize the Issuing Lender’s Fronting Exposure in
accordance with the procedures set forth in Section 4.13.
(b) Defaulting Lender Cure. If the
Borrowers, the Administrative Agent, the Issuing Lender and the
Swingline Lender agree in writing that a Lender is no longer a
Defaulting Lender, the Administrative Agent will so notify the
parties hereto, whereupon as of the effective date specified in
such notice and subject to any conditions set forth therein (which
may include arrangements with respect to any Cash Collateral), such
Lender will, to the extent applicable, purchase at par that portion
of outstanding Loans of the other Lenders or take such other
actions as the Administrative Agent may determine to be necessary
to cause the Loans and funded and unfunded participations in
Letters of Credit and Swingline Loans to be held pro rata by the Lenders in
accordance with the Revolving
Credit Commitments and outstanding Term Loans (without
giving effect to Section 4.14(a)(iv)),
whereupon such Lender will cease to be a Defaulting Lender;
provided that no
adjustments will be made retroactively with respect to fees accrued
or payments made by or on behalf of the Borrowers while that ▇▇▇▇▇▇
was a Defaulting Lender; and provided, further, that except to the
extent otherwise expressly agreed by the affected parties, no
change hereunder from Defaulting Lender to Lender will constitute a
waiver or release of any claim of any party hereunder arising from
that ▇▇▇▇▇▇’s having been a Defaulting Lender.
ARTICLE
V
CONDITIONS
OF CLOSING AND BORROWING
SECTION
5.1 Conditions to Closing and Initial
Extensions of Credit. The obligation of the Lenders to close
this Agreement and to make the initial Loans or issue or
participate in the initial Letter of Credit, if any, is subject to
the satisfaction of each of the following conditions:
(a) Executed Loan Documents. This
Agreement, a Revolving Credit Note in favor of each Revolving
Credit Lender requesting a Revolving Credit Note, a Term Loan Note
in favor of each Term Loan Lender requesting a Term Loan Note, a
Swingline Note in favor of the Swingline Lender (in each case, if
requested thereby), the Security Documents and the Guaranty
Agreements, together with any other applicable Loan Documents,
shall have been duly authorized, executed and delivered to the
Administrative Agent by the parties thereto, shall be in full force
and effect and no Default or Event of Default shall exist hereunder
or thereunder.
(b) Closing Certificates; Etc. The
Administrative Agent shall have received each of the following in
form and substance reasonably satisfactory to the Administrative
Agent:
(i) Officer’s Certificate. A
certificate from a Responsible Officer of the Parent Borrower in
form and substance reasonably satisfactory to the Administrative
Agent.
-52-
(ii) Certificate
of Secretary of each Credit Party. A certificate of a
Responsible Officer of each Credit Party certifying as to the
incumbency and genuineness of the signature of each officer of such
Credit Party executing any applicable Loan Documents to which it is
a party and certifying that attached thereto is a true, correct and
complete copy of (A) the articles or certificate of
incorporation or formation (or equivalent), as applicable, of such
Credit Party and all amendments thereto, 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
Credit Party as in effect on the Closing Date, (C) resolutions
duly adopted by the board of directors (or other governing body) of
such Credit Party authorizing and approving the transactions
contemplated hereunder and the execution, delivery and performance
of this Agreement and any other applicable Loan Documents to which
it is a party, and (D) each certificate required to be
delivered pursuant to Section 5.1(b)(iii).
(iii) Certificates
of Good Standing. To the extent applicable, certificates as
of a recent date of the good standing of each Credit Party under
the laws of its jurisdiction of incorporation, organization or
formation (or equivalent), as applicable.
(iv) Opinions
of Counsel. Opinions of counsel to the Credit Parties
addressed to the Administrative Agent and the Lenders with respect
to the Credit Parties, the applicable Loan Documents and such other
matters as the Administrative Agent shall reasonably
request.
(c) Personal Property
Collateral.
(i) Filings and Recordings. The
Administrative Agent shall have received all filings and
recordations that are necessary to perfect the security interests
of the Administrative Agent, on behalf of the Secured Parties, in
the Collateral, to the extent such security interests can be
perfected by filing or recordation, and the Administrative Agent
shall have received evidence reasonably satisfactory to the
Administrative Agent that upon such filings and recordations such
security interests constitute valid and perfected first priority
Liens thereon (subject to Permitted Liens).
(ii) Pledged
Collateral. To the extent required by the Security
Documents, the Administrative Agent shall have received
(A) original stock certificates or other certificates
evidencing the certificated Equity Interests pledged pursuant to
the Security Documents, together with an undated stock power for
each such certificate duly executed in blank by the registered
owner thereof and (B) each original promissory note pledged
pursuant to the Security Documents together with an undated allonge
for each such promissory note duly executed in blank by the holder
thereof.
(iii) Register
of Mortgages and Charges. The Administrative Agent shall
have received a true, correct and complete copy of the register of
mortgages and charges for each of the Cayman Borrower and Ubiquiti
Cayman which shall include details of all Security Documents
entered into by each of the Cayman Borrower and Ubiquiti
Cayman.
(iv) Lien
Search. The Administrative Agent shall have received the
results of a Lien search (including a search as to judgments,
bankruptcy and tax matters), in form and substance reasonably
satisfactory thereto, made against the Credit Parties under the
Uniform Commercial Code (or applicable judicial docket) 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 Credit Party, indicating
among other things that the assets of each such Credit Party are
free and clear of any Lien (except for Permitted
Liens).
(v) Property and Liability
Insurance. The Administrative Agent shall have received, in
each case in form and substance reasonably satisfactory to the
Administrative Agent, evidence of property, business interruption
and liability insurance covering each Credit Party, evidence of
payment of all insurance premiums for the current policy year of
each policy (with appropriate endorsements naming the
Administrative Agent as lender’s loss payee on all policies
for property hazard insurance and as additional insured on all
policies for liability insurance), and if requested by the
Administrative Agent, copies of such insurance
policies.
-53-
(vi) Other
Collateral Documentation. The Administrative Agent shall
have received any documents reasonably requested thereby or as
required by the terms of the Security Documents to evidence its
security interest in the Collateral (including, without limitation,
any landlord waivers or collateral access agreements).
(d) Consents;
Defaults.
(i) Governmental and Third Party
Approvals. The Credit Parties shall have received all
material governmental, shareholder and third party consents and
approvals necessary in connection with the Transactions and any
other transaction contemplated in any other Loan
Document.
(ii) No
Material Litigation. The absence of any action, suit,
investigation or proceeding pending or, to the knowledge of the
Parent Borrower or the Cayman Borrower, threatened in writing in
any court or before any arbitrator or governmental authority that
could reasonably be expected to have a Material Adverse
Effect.
(e) Financial Matters.
(i) Financial Statements. The
Administrative Agent shall have received (A) the audited
Consolidated and consolidating balance sheet of the Parent Borrower
and its Subsidiaries as of June 30, 2015, June 30, 2016 and June
30, 2017, and the related audited Consolidated and consolidating
statements of income and retained earnings and cash flows for the
Fiscal Years then ended and (B) unaudited Consolidated and
consolidating balance sheet of the Parent Borrower and its
Subsidiaries as of September 30, 2017 and related unaudited
Consolidated and consolidating interim statements of income and
retained earnings.
(ii) Financial
Projections. The Administrative Agent shall have received
pro forma Consolidated financial statements for the Parent Borrower
and its Subsidiaries, and projections prepared by management of the
Parent Borrower, of balance sheets, income statements and cash flow
statements on a quarterly basis for the first year following the
Closing Date and on an annual basis for each year thereafter during
the term of the Credit Facility.
(iii) Financial
Condition/Solvency Certificate. The Parent Borrower shall
have delivered to the Administrative Agent a certificate, in form
and substance satisfactory to the Administrative Agent, and
certified as accurate by the chief financial officer or chief
accounting officer of the Parent Borrower (not in his individual
capacity), that (A) after giving effect to the Transactions,
(x) the Parent Borrower and its Subsidiaries, taken as a whole, are
Solvent and (y) the Credit Parties, taken as a whole, are Solvent
and (B) the financial projections previously delivered to the
Administrative Agent represent the good faith estimates (utilizing
reasonable assumptions) of the financial condition and operations
of the Parent Borrower and its Subsidiaries.
(iv) Closing
Leverage Ratio/Liquidity. The Administrative Agent will be
reasonably satisfied that (A) the Consolidated Total Leverage Ratio
as of the most recently ended fiscal quarter prior to the Closing
Date for which financial statements are available (calculated on a
pro forma basis after giving effect to the Transactions) will not
exceed 3.25 to 1.00 and (B) the Credit Parties have Liquidity of at
least $250,000,000 on the Closing Date, after giving effect to the
Transactions.
-54-
(v) Payment at Closing. The
Borrowers shall have paid or made arrangements to pay
contemporaneously with closing (A) to the Administrative
Agent, the Arrangers and the Lenders the fees set forth or
referenced in Section 4.3 and any other
accrued and unpaid fees or commissions due hereunder, (B) all
fees, charges and disbursements of counsel to the Administrative
Agent (directly to such counsel if requested by the Administrative
Agent) and (C) to any other Person such amount as may be due
thereto in connection with the transactions contemplated hereby,
including all taxes, fees and other charges in connection with the
execution, delivery, recording, filing and registration of any of
the Loan Documents.
(f) Miscellaneous.
(i) Notice of Account Designation.
The Administrative Agent shall have received a Notice of Account
Designation specifying the account or accounts to which the
proceeds of any Loans made on or after the Closing Date are to be
disbursed.
(ii) Existing
Credit Agreement. The Indebtedness outstanding under the
Existing Credit Agreement shall have been refinanced, or shall be
refinanced substantially simultaneously with the initial Extensions
of Credit.
(iii) PATRIOT
Act, etc. Each Borrower and each of the Guarantors shall
have provided to the Administrative Agent and the Lenders the
documentation and other information requested by the Administrative
Agent in order to comply with requirements of the PATRIOT Act,
applicable “know your customer” and anti-money
laundering rules and regulations at least ten (10) Business Days
prior to the Closing Date.
(iv) Other
Documents. All opinions, certificates and other instruments
and all proceedings in connection with the transactions
contemplated by this Agreement shall be satisfactory in form and
substance to the Administrative Agent. The Administrative Agent
shall have received copies of all other documents, certificates and
instruments reasonably requested thereby, with respect to the
transactions contemplated by this Agreement.
Without
limiting the generality of the provisions of the last paragraph of
Section 10.3,
for purposes of determining compliance with the conditions
specified in this Section 5.1, the
Administrative Agent and each Lender that has signed this Agreement
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 proposed Closing Date specifying its
objection thereto.
SECTION
5.2 Conditions to All Extensions of
Credit. The obligations of the Lenders to make or
participate in any Extensions of Credit (including the initial
Extension of Credit) and/or the Issuing Lender to issue or extend
any Letter of Credit are subject to the satisfaction of the
following conditions precedent on the relevant borrowing,
continuation, conversion, issuance or extension date:
(a) Continuation of Representations and
Warranties. The representations and warranties contained in
this Agreement and the other Loan Documents shall be true and
correct in all material respects, except for any representation and
warranty that is qualified by materiality or reference to Material
Adverse Effect, which such representation and warranty shall be
true and correct in all respects, on and as of such borrowing,
issuance or extension date with the same effect as if made on and
as of such date (except for any such representation and warranty
that by its terms is made only as of an earlier date, which
representation and warranty shall remain true and correct in all
material respects as of such earlier date, except for any
representation and warranty that is qualified by materiality or
reference to Material Adverse Effect, which such representation and
warranty shall be true and correct in all respects as of such
earlier date).
(b) No Existing Default. No Default
or Event of Default shall have occurred and be continuing (i) on
the borrowing date with respect to such Loan or after giving effect
to the Loans to be made on such date or (ii) on the issuance or
extension date with respect to such Letter of Credit or after
giving effect to the issuance or extension of such Letter of Credit
on such date.
-55-
(c) Notices. The Administrative
Agent shall have received a Notice of Borrowing or a Letter of
Credit Application, as applicable, from the Borrower Agent in
accordance with Section 2.3(a),
3.2 or 2.9, as
applicable.
(d) New Swingline Loans/Letters of
Credit. So long as any Lender is a Defaulting Lender, (i)
the Swingline Lender shall not be required to fund any Swingline
Loans unless it is satisfied that it will have no Fronting Exposure
after giving effect to such Swingline Loan and (ii) the Issuing
Lender shall not be required to issue, extend, renew or increase
any Letter of Credit unless it is satisfied that it will have no
Fronting Exposure after giving effect thereto.
ARTICLE
VI
REPRESENTATIONS
AND WARRANTIES OF THE CREDIT PARTIES
To
induce the Administrative Agent and ▇▇▇▇▇▇▇ to enter into this
Agreement and to induce the Lenders to make Extensions of Credit,
the Credit Parties hereby represent and warrant to the
Administrative Agent and the Lenders, which representations and
warranties shall be deemed made on the Closing Date and as
otherwise set forth in Section 5.2,
that:
SECTION
6.1 Organization; Power;
Qualification. Each Credit Party and each Subsidiary thereof
(other than Immaterial Foreign Subsidiaries) (a) is duly
organized or incorporated, validly existing and in good standing
(or in the case of any Foreign Subsidiary, the equivalent status,
if any, in the applicable foreign jurisdiction), under the laws of
the jurisdiction of its incorporation or formation, (b) has
the power and authority to own its Properties and to carry on its
business as now being and hereafter proposed to be conducted and
(c) is duly qualified and authorized to do business in each
jurisdiction in which the character of its Properties or the nature
of its business requires such qualification and authorization (to
the extent applicable in the case of Foreign Subsidiaries) except
in jurisdictions where the failure to be so qualified or in good
standing could not reasonably be expected to result in a Material
Adverse Effect. The jurisdictions in which each Credit Party and
each Subsidiary thereof are organized and qualified to do business
as of the Closing Date are described on Schedule 6.1. No Credit Party
nor any Subsidiary thereof is an EEA Financial
Institution.
SECTION
6.2 Ownership. Each Subsidiary of
each Credit Party as of the Closing Date is listed on Schedule 6.2. As of the Closing
Date, the capitalization of each Credit Party (other than the
Parent Borrower) and its Subsidiaries consists of the number of
shares, authorized, issued and outstanding, of such classes and
series, with or without par value, described on Schedule 6.2. All outstanding
shares have been duly authorized and validly issued and, to the
extent applicable, are fully paid and non-assessable and not
subject to any preemptive or similar rights, except as described in
Schedule 6.2. The
shareholders or other owners, as applicable, of each Credit Party
(other than the Parent Borrower) and its Subsidiaries which are not
traded on a public exchange and the number of shares owned by each
as of the Closing Date are described on Schedule 6.2. As of the Closing
Date, there are no outstanding stock purchase warrants,
subscriptions, options, securities, instruments or other rights of
any type or nature whatsoever, which are convertible into,
exchangeable for or otherwise provide for or require the issuance
of Equity Interests of any Credit Party (other than the Parent
Borrower) or any Subsidiary thereof, except as described on
Schedule
6.2.
SECTION
6.3 Authorization; Enforceability.
Each Credit Party has the right, power and authority and has taken
all necessary corporate and other action to authorize the
execution, delivery and performance of this Agreement and each of
the other Loan Documents to which it is a party in accordance with
their respective terms. This Agreement and each of the other Loan
Documents have been duly executed and delivered by the duly
authorized officers of each Credit Party that is a party thereto,
and each such document constitutes the legal, valid and binding
obligation of each Credit Party that is a party thereto,
enforceable in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar state or federal Debtor
Relief Laws from time to time in effect which affect the
enforcement of creditors’ rights in general and the
availability of equitable remedies.
-56-
SECTION
6.4 Compliance of Agreement, Loan
Documents and Borrowing with Laws, Etc. The execution,
delivery and performance by each Credit Party of the Loan Documents
to which each such Person is a party, in accordance with their
respective terms, the Extensions of Credit hereunder and the
transactions contemplated hereby or thereby do not,
(a) require any Governmental Approval or violate any
Applicable Law relating to any Credit Party or any Subsidiary
thereof where the failure to obtain such Governmental Approval or
such violation could reasonably be expected to have a Material
Adverse Effect, (b) conflict with, result in a breach of or
constitute a default under the articles of incorporation, bylaws or
other organizational documents of any Credit Party,
(c) conflict with, result in a breach of or constitute a
default under any indenture, agreement or other instrument to which
such Person is a party or by which any of its properties may be
bound or any Governmental Approval relating to such Person, which
could, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect, (d) result in or require the
creation or imposition of any Lien upon or with respect to any
property now owned or hereafter acquired by such Person other than
Permitted Liens or (e) require any consent or authorization
of, filing with, or other act in respect of, an arbitrator or
Governmental Authority and no consent of any other Person is
required in connection with the execution, delivery, performance,
validity or enforceability of this Agreement other than
(i) consents, authorizations, filings or other acts or
consents that have been obtained or made and that are still in
force and effect, (ii) consents, authorizations, filings or other
acts or consents for which the failure to obtain or make could not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect and (iii) consents or filings under
the UCC or other security filings as applicable in foreign
jurisdictions.
SECTION
6.5 Compliance with Law; Governmental
Approvals. Each Credit Party and each Subsidiary thereof
(other than Immaterial Foreign Subsidiaries) (a) has all
Governmental Approvals required by any Applicable Law for it to
conduct its business, each of which is in full force and effect
(b) is in compliance with each Governmental Approval
applicable to it and in compliance with all other Applicable Laws
relating to it or any of its respective Properties and (c) has
timely filed all material reports, documents and other materials
required to be filed by it under all Applicable Laws with any
Governmental Authority and has retained all material records and
documents required to be retained by it under Applicable Law except
in each case (a), (b) or (c) where the failure to have, comply or
file could not reasonably be expected to have a Material Adverse
Effect.
SECTION
6.6 Tax Returns and Payments. Each
Credit Party and each Subsidiary thereof (other than Immaterial
Foreign Subsidiaries) has duly filed or caused to be filed all
federal and state and any other material tax returns required by
Applicable Law to be filed, and all taxes shown to be due on such
tax returns have been timely paid (other than any amount the
validity of which is currently being contested in good faith by
appropriate proceedings and with respect to which reserves in
conformity with GAAP have been provided for on the books of the
relevant Credit Party or Subsidiary). Such tax returns accurately
reflect in all material respects all liability for taxes of any
Credit Party or any Subsidiary thereof (other than Immaterial
Foreign Subsidiaries) for the periods covered thereby. As of the
Closing Date, except as set forth on Schedule 6.6, there is no
ongoing audit or examination or, to its knowledge, other
investigation by any Governmental Authority of any material tax
liability of any Credit Party or any Subsidiary thereof (other than
Immaterial Foreign Subsidiaries). No Governmental Authority has
asserted any Lien or other claim against any Credit Party or any
Subsidiary thereof (other than Immaterial Foreign Subsidiaries)
with respect to material unpaid taxes which has not been discharged
or resolved (other than (a) any amount the validity of which
is currently being contested in good faith by appropriate
proceedings and with respect to which reserves in conformity with
GAAP have been provided for on the books of the relevant Credit
Party or Subsidiary and (b) Permitted Liens). The charges,
accruals and reserves on the books of each Credit Party and each
Subsidiary thereof (other than Immaterial Foreign Subsidiaries) in
respect of U.S. federal, state, local and other taxes for all
Fiscal Years and portions thereof since the organization of any
such Credit Party or Subsidiary thereof are in the judgment of the
Borrowers adequate, and the Borrowers do not anticipate any
additional material taxes or assessments for any of such
years.
SECTION
6.7 Intellectual Property Matters.
Each Credit Party and each Subsidiary thereof (other than
Immaterial Foreign Subsidiaries) owns or possesses rights to use
all franchises, licenses, copyrights, copyright applications,
patents, patent rights or licenses, patent applications,
trademarks, trademark rights, service mark, service mark rights,
trade names, trade name rights, copyrights and other rights with
respect to the foregoing, in each case which are material and
reasonably necessary to conduct its business. No event has occurred
which permits, or after notice or lapse of time or both would
permit, the revocation or termination of any such rights which are
material and reasonably necessary to conduct its business. To their
knowledge, no Credit Party nor any Subsidiary thereof (other than
Immaterial Foreign Subsidiaries) is liable to any Person for
infringement under Applicable Law with respect to any such rights
as a result of its business operations where such liability could
reasonably be expected to have a Material Adverse
Effect.
-57-
SECTION
6.8 Environmental
Matters.
(a) The properties
owned, leased or operated by each Credit Party and each Subsidiary
thereof (other than Immaterial Foreign Subsidiaries) now or in the
past do not contain, and to their knowledge have not previously
contained, any Hazardous Materials in amounts or concentrations
which constitute or constituted a violation of applicable
Environmental Laws which could reasonably be expected, individually
or in the aggregate, to have a Material Adverse
Effect;
(b) To its knowledge,
each Credit Party and each Subsidiary thereof (other than
Immaterial Foreign Subsidiaries) and such properties and all
operations conducted in connection therewith are in compliance, and
have been in compliance, with all applicable Environmental Laws,
and there is no contamination at, under or about such properties or
such operations which could interfere with the continued operation
of such properties or impair the fair saleable value thereof except
for non-compliance or violations which could not reasonably be
expected, individually or in the aggregate, to have a Material
Adverse Effect;
(c) No Credit Party nor
any Subsidiary thereof (other than Immaterial Foreign Subsidiaries)
has received any notice of violation, alleged violation,
non-compliance, liability or potential liability regarding
environmental matters, Hazardous Materials, or compliance with
Environmental Laws that, if adversely determined, could reasonably
be expected, individually or in the aggregate, to have a Material
Adverse Effect, nor does any Credit Party or any Subsidiary thereof
(other than Immaterial Foreign Subsidiaries) have actual knowledge
that any such notice will be received or is being
threatened;
(d) Except as would not
reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect, to its knowledge, Hazardous Materials have
not been transported or disposed of to or from the properties
owned, leased or operated by any Credit Party or any Subsidiary
thereof (other than Immaterial Foreign Subsidiaries) in violation
of, or in a manner or to a location which could give rise to
liability under, Environmental Laws, nor have any Hazardous
Materials been generated, treated, stored or disposed of at, on or
under any of such properties in violation of, or in a manner that
could give rise to liability under, any applicable Environmental
Laws;
(e) No judicial
proceedings or governmental or administrative action is pending,
or, to the knowledge of either Borrower, threatened, under any
Environmental Law to which any Credit Party or any Subsidiary
thereof (other than Immaterial Foreign Subsidiaries) is or will be
named as a potentially responsible party, nor are there any consent
decrees or other decrees, consent orders, administrative orders or
other orders, or other administrative or judicial requirements
outstanding under any applicable Environmental Law with respect to
any Credit Party, any Subsidiary thereof (other than Immaterial
Foreign Subsidiaries), with respect to any real property owned,
leased or operated by any Credit Party or any Subsidiary thereof
(other than Immaterial Foreign Subsidiaries) or operations
conducted in connection therewith that could reasonably be
expected, individually or in the aggregate, to have a Material
Adverse Effect; and
(f) There has been no
release, or to its knowledge, threat of release, of Hazardous
Materials at or from properties owned, leased or operated by any
Credit Party or any Subsidiary (other than Immaterial Foreign
Subsidiaries), now or in the past, in violation of or in amounts or
in a manner that could give rise to liability under applicable
Environmental Laws that could reasonably be expected, individually
or in the aggregate, to have a Material Adverse
Effect.
SECTION
6.9 Employee Benefit
Matters.
(a) Each Credit Party
and each ERISA Affiliate is in compliance with all applicable
provisions of ERISA, the Code and the regulations and published
interpretations thereunder with respect to all Employee Benefit
Plans except for any required amendments for which the remedial
amendment period as defined in Section 401(b) of the Code has
not yet expired and except where a failure to so comply could not
reasonably be expected to have a Material Adverse Effect. Except as
would not reasonably be expected to have a Material Adverse Effect,
each Employee Benefit Plan that is intended to be qualified under
Section 401(a) of the Code has been determined by the IRS to
be so qualified, and each trust related to such plan has been
determined to be exempt under Section 501(a) of the Code
except for such plans that have not yet received determination
letters but for which the remedial amendment period for submitting
a determination letter has not yet expired or plans covered by an
IRS opinion or advisory letter. No liability has been incurred by
any Credit Party or any ERISA Affiliate which remains unsatisfied
for any taxes or penalties assessed with respect to any Employee
Benefit Plan or any Multiemployer Plan except for a liability that
could not reasonably be expected to have a Material Adverse
Effect;
-58-
(b) As of the Closing
Date, no Pension Plan has been terminated, nor has any Pension Plan
become subject to funding based benefit restrictions under
Section 436 of the Code, nor has any funding waiver from the
IRS been received or requested with respect to any Pension Plan,
nor has any Credit Party or any ERISA Affiliate failed to make any
contributions or to pay any amounts due and owing as required by
Sections 412 or 430 of the Code, Section 302 of ERISA or the
terms of any Pension Plan on or prior to the due dates of such
contributions under Sections 412 or 430 of the Code or
Section 302 of ERISA, nor has there been any event requiring
any disclosure under Section 4041(c)(3)(C) or 4063(a) of ERISA
with respect to any Pension Plan;
(c) Except where the
failure of any of the following representations to be correct could
not reasonably be expected, individually or in the aggregate, to
have a Material Adverse Effect, no Credit Party nor any ERISA
Affiliate has: (i) engaged in a nonexempt prohibited
transaction described in Section 406 of the ERISA or
Section 4975 of the Code, (ii) incurred any liability to
the PBGC which remains outstanding other than the payment of
premiums and there are no premium payments which are due and
unpaid, (iii) failed to make a required contribution or
payment to a Multiemployer Plan, or (iv) failed to make a
required installment or other required payment under Sections 412
or 430 of the Code;
(d) No Termination
Event has occurred or is reasonably expected to occur that would
reasonably be expected to have a Material Adverse
Effect;
(e) Except where the
failure of any of the following representations to be correct could
not reasonably be expected, individually or in the aggregate, to
have a Material Adverse Effect, no proceeding, claim (other than a
benefits claim in the ordinary course of business), lawsuit and/or
investigation is existing or, to its knowledge, threatened
concerning or involving (i) any employee welfare benefit plan (as
defined in Section 3(1) of ERISA) currently maintained or
contributed to by any Credit Party or any ERISA Affiliate, (ii) any
Pension Plan or (iii) any Multiemployer Plan.
(f) No Credit Party nor
any Subsidiary thereof is a party to any contract, agreement or
arrangement that could, solely as a result of the delivery of this
Agreement or the consummation of transactions contemplated hereby,
result in the payment of any “excess parachute payment”
within the meaning of Section 280G of the Code.
SECTION
6.10 Margin Stock. No Credit Party
nor any Subsidiary thereof is engaged principally or as one of its
important activities in the business of “purchasing” or
“carrying” any “margin stock” (as each such
term is defined or used, directly or indirectly, in Regulation U of
the Board of Governors of the Federal Reserve System) or extending
credit for such purpose. No part of the proceeds of any of the
Loans or Letters of Credit will be used for, or extended as credit
for, purchasing or carrying margin stock or for any purpose which
violates, or which would be inconsistent with, the provisions of
Regulation T, U or X of such Board of Governors. Following the
application of the proceeds of each Extension of Credit, not more
than twenty-five percent (25%) of the value of the assets (either
of the Borrowers only or of the Parent Borrower and its Subsidiaries on a
Consolidated basis) subject to the provisions of Section 8.2 or
Section 8.5 or
subject to any restriction contained in any agreement or instrument
between the Borrowers and any Lender or any Affiliate of any Lender
relating to Indebtedness in excess of the Threshold Amount will be
“margin stock”.
SECTION
6.11 Government Regulation. No
Credit Party nor any Subsidiary thereof is an “investment
company” or a company “controlled” by an
“investment company” (as each such term is defined or
used in the Investment Company Act of 1940) and no Credit Party nor
any Subsidiary thereof is, or after giving effect to any Extension
of Credit will be, subject to regulation under any Applicable Law
which limits its ability to incur or consummate the transactions
contemplated hereby.
SECTION
6.12 Material Contracts.
Schedule 6.12 sets
forth a complete and accurate list of all Material Contracts of
each Credit Party and each Subsidiary thereof (other than
Immaterial Foreign Subsidiaries) in effect as of the Closing Date.
Other than as set forth in Schedule 6.12, as of the
Closing Date, each such Material Contract is, and after giving
effect to the consummation of the transactions contemplated by the
Loan Documents will be, in full force and effect in accordance with
the terms thereof. As of the Closing Date, no Credit Party nor any
Subsidiary thereof (other than Immaterial Foreign Subsidiaries)
(nor, to its knowledge, any other party thereto) is in breach of or
in default under any Material Contract in any material
respect.
-59-
SECTION
6.13 Employee Relations. As of the
Closing Date, no Credit Party or any Subsidiary thereof is party to
any collective bargaining agreement, nor has any labor union been
recognized as the representative of its employees except as set
forth on Schedule
6.13. Neither Borrower knows of any pending, threatened (in
writing) strikes, work stoppage or other collective labor disputes
involving its employees or those of its Subsidiaries that,
individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect.
SECTION
6.14 Financial Statements. The
audited and unaudited financial statements delivered pursuant to
Section 5.1(e)(i) are
complete and correct in all material respects and fairly present on
a Consolidated and consolidating basis the assets, liabilities and
financial position of the Parent Borrower and its Subsidiaries as
at such dates, and the results of the operations and changes of
financial position for the periods then ended in all material
respects (other than customary year-end adjustments for unaudited
financial statements and the absence of footnotes from unaudited
financial statements). All such financial statements, including the
related schedules and notes thereto, have been prepared in
accordance with GAAP. Such financial statements show all material
Indebtedness and other material liabilities, direct or contingent,
of the Parent Borrower and its Subsidiaries as of the date thereof,
including material liabilities for taxes, material commitments, and
Indebtedness, in each case, to the extent required to be disclosed
under GAAP. The projections delivered pursuant to Section 5.1(e)(ii) and
were prepared in good faith on the basis of the assumptions stated
therein, which assumptions were believed to be reasonable in light
of then existing conditions except that such financial projections
and statements shall be subject to normal year end closing and
audit adjustments (it being recognized by the Lenders that
projections are not to be viewed as facts and that the actual
results during the period or periods covered by such projections
may vary from such projections).
SECTION
6.15 No Material Adverse Change.
Since June 30, 2017, there has been no material adverse change in
the properties, business, operations, or condition (financial or
otherwise) of the Parent Borrower and its Subsidiaries, taken as a
whole, and no event has occurred or condition arisen, either
individually or in the aggregate, that could reasonably be expected
to have a Material Adverse Effect.
SECTION
6.16 Solvency. (a) The Parent
Borrower and its Subsidiaries, taken as a whole, and (b) the Credit
Parties, taken as a whole, are Solvent.
SECTION
6.17 Title to Properties. As of the
Closing Date, the real property listed on Schedule 6.17 constitutes all
of the real property that is owned, leased or subleased or used by
any Credit Party or any of its Subsidiaries (other than Immaterial
Foreign Subsidiaries). Each Credit Party and each Subsidiary
thereof (other than Immaterial Foreign Subsidiaries) has such title
to, or valid leasehold interests in, the real property owned or
leased by it as is necessary to the conduct of its business and
valid and legal title to all of its personal property and assets,
except those which have been disposed of by the Credit Parties and
their Subsidiaries subsequent to such date which dispositions have
been in the ordinary course of business or as otherwise permitted
hereunder and except where the failure to have such title or
leasehold interests could not reasonably be expected to have a
Material Adverse Effect.
SECTION
6.18 Litigation. Except for matters
existing on the Closing Date and set forth on Schedule 6.18, there are no
actions, suits or proceedings pending nor, to its knowledge,
threatened in writing against or in any other way relating
adversely to or affecting any Credit Party or any Subsidiary
thereof or any of their respective properties in any court or
before any arbitrator of any kind or before or by any Governmental
Authority that could reasonably be expected to have a Material
Adverse Effect.
SECTION
6.19 Anti-Corruption Laws and
Sanctions. None of (a) the Borrowers, any Subsidiary or to
the knowledge of either Borrower or such Subsidiary any of their
respective directors, officers, employees or affiliates, or (b) to
the knowledge of either Borrower, any agent or representative of
either Borrower or any Subsidiary that will act in any capacity in
connection with or benefit from the credit facility established
hereby is a Sanctioned Person or the subject or target of any
Sanctions.
SECTION
6.20 Absence of Defaults. No Default
or an Event of Default has occurred and is continuing.
-60-
SECTION
6.21 Disclosure. The Parent Borrower
and/or its Subsidiaries have disclosed to the Administrative Agent
and the Lenders all agreements, instruments and corporate or other
restrictions to which any Credit Party and any Subsidiary thereof
(other than Immaterial Foreign Subsidiaries) are subject, and all
other matters known to them, that, in each case, individually or in
the aggregate, could reasonably be expected to result in a Material
Adverse Effect. No financial statement, material report, material
certificate or other material information furnished (whether in
writing or orally) by or on behalf of any Credit Party or any
Subsidiary thereof to the Administrative Agent or any Lender in
connection with the transactions contemplated hereby and the
negotiation of this Agreement or delivered hereunder (as modified
or supplemented by other information so furnished), taken together
as a whole, and together with the Borrower’s filings with the
SEC, contains any untrue statement of a material fact or omits to
state any material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; provided that, with respect to
projected financial information, pro forma financial information,
estimated financial information and other projected or estimated
information, such information was prepared in good faith based upon
assumptions believed to be reasonable at the time (it being
recognized by the Lenders that projections are not to be viewed as
facts and that the actual results during the period or periods
covered by such projections may vary from such projections);
provided further that with respect to information relating to the
Borrowers’ industry generally and trade data which relates to
a Person that is not a Borrower or a Subsidiary thereof, the
Borrowers represent and warrant only that such information is
believed by it in good faith to be accurate in all material
respects.
ARTICLE
VII
AFFIRMATIVE
COVENANTS
Until
all of the Obligations (other than contingent indemnification
obligations not then due) have been paid and satisfied in full in
cash, all Letters of Credit have been terminated or expired (or
been Cash Collateralized or other arrangements with respect thereto
have been made that are satisfactory to the Issuing Lender) and the
Revolving Credit Commitments
terminated, each Credit Party will, and will cause each of its
Subsidiaries (other than Immaterial Foreign Subsidiaries)
to:
SECTION
7.1 Financial Statements and
Budgets. Deliver to the Administrative Agent, in form and
detail satisfactory to the Administrative Agent (which shall
promptly make such information available to the Lenders in
accordance with its customary practice):
(a) Annual Financial Statements. As
soon as practicable and in any event within 90 days (or, if later,
on the date of any required public filing thereof (after giving
effect to any extensions for filing under Rule 12b-25 promulgated
under the Exchange Act), but not to exceed 105 days) after the end
of each Fiscal Year (commencing with the Fiscal Year ended June 30,
2018), an audited Consolidated and consolidating balance sheet of
the Parent Borrower and its Subsidiaries as of the close of such
Fiscal Year and audited Consolidated and consolidating statements
of income, retained earnings and cash flows including the notes
thereto, all in reasonable detail setting forth in comparative form
the corresponding figures as of the end of and for the preceding
Fiscal Year and prepared in accordance with GAAP and, if
applicable, containing disclosure of the effect on the financial
position or results of operations of any change in the application
of accounting principles and practices during the year. Such annual
financial statements shall be audited by an independent certified
public accounting firm of recognized national standing reasonably
acceptable to the Administrative Agent, and accompanied by a report
and opinion thereon by such certified public accountants prepared
in accordance with generally accepted auditing standards that is
not subject to any “going concern” or similar
qualification or exception or any qualification as to the scope of
such audit or with respect to accounting principles followed by the
Parent Borrower or any of its Subsidiaries not in accordance with
GAAP.
-61-
(b) Quarterly Financial Statements.
As soon as practicable and in any event within 45 days (or, if
later, on the date of any required public filing thereof (after
giving effect to any extensions for filing under Rule 12b-25
promulgated under the Exchange Act), but not to exceed 50 days)
after the end of the first three fiscal quarters of each Fiscal
Year (commencing with the fiscal quarter ended March 31, 2018), an
unaudited Consolidated and consolidating balance sheet of the
Parent Borrower and its Subsidiaries as of the close of such fiscal
quarter and unaudited Consolidated and consolidating statements of
income, retained earnings and cash flows and a report containing
management’s discussion and analysis of such financial
statements for the fiscal quarter then ended and that portion of
the Fiscal Year then ended (to the extent such information is
provided in the applicable quarterly report filed by the Parent
Borrower with the SEC under the Exchange Act), including the notes
thereto, all in reasonable detail setting forth in comparative form
the corresponding figures as of the end of and for the
corresponding period in the preceding Fiscal Year and prepared by
the Parent Borrower in accordance with GAAP and, if applicable,
containing disclosure of the effect on the financial position or
results of operations of any change in the application of
accounting principles and practices during the period, and
certified by the chief financial officer of the Parent Borrower to
present fairly in all material respects the financial condition of
the Parent Borrower and its Subsidiaries on a Consolidated and
consolidating basis as of their respective dates and the results of
operations of the Parent Borrower and its Subsidiaries for the
respective periods then ended, subject to normal year-end
adjustments and the absence of footnotes.
(c) Annual Business Plan and
Budget. As soon as practicable and in any event within
forty-five (45) days after the end of each Fiscal Year, a business
plan and operating and capital budget of the Parent Borrower and
its Subsidiaries for the ensuing fiscal year, such plan to include,
on an annual basis, the following: an annual operating and capital
budget, a projected income statement, statement of cash flows and
balance sheet, calculations demonstrating projected compliance with
the financial covenants set forth in Section 8.13 and a report
containing a reasonable disclosure of the key assumptions and
drivers with respect to such budget, accompanied by a certificate
from a Responsible Officer of the Parent Borrower to the effect
that such budget contains good faith estimates (utilizing
assumptions believed to be reasonable at the time of delivery of
such budget) of the financial condition and operations of the
Parent Borrower and its Subsidiaries for such period.
SECTION
7.2 Certificates; Other Reports.
Deliver to the Administrative Agent (which shall promptly make such
information available to the Lenders in accordance with its
customary practice):
(a) at each time
financial statements are delivered pursuant to Sections 7.1(a) or (b), a duly completed
Officer’s Compliance Certificate signed by the chief
executive officer, chief financial officer, chief accounting
officer, treasurer or controller of the Parent Borrower and a
report containing management’s discussion and analysis of
such financial statements;
(b) promptly after the
same are available, copies of each annual report, proxy or
financial statement or other report or communication sent to the
stockholders of the Parent Borrower, and copies of all annual,
regular, periodic and special reports and registration statements
which the Parent Borrower may file or be required to file with the
SEC under Section 13 or 15(d) of the Exchange Act, or with any
national securities exchange, and in any case not otherwise
required to be delivered to the Administrative Agent pursuant
hereto;
(c) at each time
financial statements are delivered pursuant to Section 7.1(a), a listing of
all Foreign Subsidiaries that are not Material Foreign Subsidiaries
and calculations showing compliance with the definition of Material
Foreign Subsidiary and Section 7.14(d);
(d) promptly, and in
any event within five (5) Business Days after receipt thereof by
any Credit Party or any Subsidiary thereof, copies of each material
notice or other material correspondence received from the SEC (or
comparable agency in any applicable non-U.S. jurisdiction)
concerning any investigation or possible investigation by such
agency regarding financial or other operational results of the
Parent Borrower or any Subsidiary thereof;
(e) promptly upon the
request thereof, such other information and documentation required
by bank regulatory authorities under applicable “know your
customer” and anti-money laundering rules and regulations
(including, without limitation, the PATRIOT Act), as from time to
time reasonably requested by the Administrative Agent or any
Lender; and
-62-
(f) such other
information regarding the operations, business affairs and
financial condition of the Parent Borrower or any Subsidiary
thereof as the Administrative Agent or any Lender may reasonably
request.
Documents
required to be delivered pursuant to Section 7.1(a) or
(b) or Section 7.2(b) (to the
extent any such documents are included in materials otherwise filed
with the SEC) may be delivered electronically and if so delivered,
shall be deemed to have been delivered on the date (i) on
which the Parent Borrower posts such documents, or provides a link
thereto on the Parent Borrower’s website on the Internet at
the website address listed in Section 11.1; or
(ii) on which such documents are posted on the Parent
▇▇▇▇▇▇▇▇’s behalf on an Internet or intranet website, if any,
to which each Lender and the Administrative Agent have access
(whether a commercial, third-party website or whether sponsored by
the Administrative Agent). Notwithstanding anything contained
herein, in every instance the Parent Borrower shall be required to
provide paper copies of the Officer’s Compliance Certificates
required by Section 7.2 to the
Administrative Agent. Except for such Officer’s Compliance
Certificates, the Administrative Agent shall have no obligation to
request the delivery or to maintain copies of the documents
referred to above, and in any event shall have no responsibility to
monitor compliance by the Parent Borrower with any such request for
delivery, and each Lender shall be solely responsible for
requesting delivery to it or maintaining its copies of such
documents.
The
Borrowers hereby acknowledge that (a) the Administrative Agent
and/or the Arrangers will make available to the Lenders and the
Issuing Lender materials and/or information provided by or on
behalf of the Parent Borrower and its Subsidiaries hereunder
(collectively, “Borrower Materials”) by
posting the Borrower Materials on Debt Domain, IntraLinks, SyndTrak
Online or another similar electronic system (the
“Platform”)
and (b) certain of the Lenders may be
“public-side” Lenders (i.e., Lenders that do not wish
to receive material non-public information with respect to the
Parent Borrower or its securities) (each, a “Public Lender”). The
Borrowers hereby agree that so long as the Parent Borrower is the
issuer of any outstanding debt or equity securities that are
registered or issued pursuant to a private offering or is actively
contemplating issuing any such securities it will use commercially
reasonable efforts to identify that portion of the Borrower
Materials that may be distributed to the Public Lenders and that
(w) all such Borrower Materials shall be clearly and
conspicuously marked “PUBLIC” which, at a minimum,
means that the word “PUBLIC” shall appear prominently
on the first page thereof; (x) by marking Borrower Materials
“PUBLIC,” the Borrowers shall be deemed to have
authorized the Administrative Agent, the Arrangers, the Issuing
Lender and the Lenders to treat such Borrower Materials as not
containing any material non-public information (although it may be
sensitive and proprietary) with respect to the Parent Borrower or
its securities for purposes of United States Federal and state
securities laws (provided, however, that to the extent
such Borrower Materials constitute Information, they shall be
treated as set forth in Section 11.10);
(y) all Borrower Materials marked “PUBLIC” are
permitted to be made available through a portion of the Platform
designated “Public Investor;” and (z) the
Administrative Agent and the Arrangers shall be entitled to treat
any Borrower Materials that are not marked “PUBLIC” as
being suitable only for posting on a portion of the Platform not
designated “Public Investor.”
SECTION
7.3 Notice of Other Matters.
Promptly (but in no event later than ten (10) days after any
Responsible Officer of any Credit Party obtains knowledge thereof)
notify the Administrative Agent in writing of (which shall promptly
make such information available to the Lenders in accordance with
its customary practice):
(a) the occurrence of
any Default or Event of Default;
(b) any event that
results in, or could reasonably be expected to result in, a
Material Adverse Effect; and
(c) (i) any letter
from the IRS stating that an Employee Benefit Plan of a Credit
Party is disqualified under Section 401(a) of the Code (along
with a copy thereof), (ii) all notices received by any Credit
Party or any ERISA Affiliate of the PBGC’s intent to
terminate any Pension Plan or to have a trustee appointed to
administer any Pension Plan, (iii) all notices received by any
Credit Party or any ERISA Affiliate from a Multiemployer Plan
sponsor concerning the imposition or amount of withdrawal liability
pursuant to Section 4202 of ERISA and (iv) either
Borrower obtaining knowledge that any Credit Party or any ERISA
Affiliate has filed or intends to file a notice of intent to
terminate any Pension Plan under a distress termination within the
meaning of Section 4041(c) of ERISA; provided that in the case of
clause (i) through
(iv), notice shall
only be required if the subject of the notice would reasonably be
expected to have a Material Adverse Effect.
-63-
Each
notice pursuant to Section 7.3 shall be
accompanied by a statement of a Responsible Officer of the Parent
Borrower or the Cayman Borrower setting forth details of the
occurrence referred to therein and stating what action the Parent
Borrower or the Cayman Borrower has taken and proposes to take with
respect thereto. Each notice pursuant to Section 7.3(a) shall
describe with particularity any and all provisions of this
Agreement and any other Loan Document that have been
breached.
SECTION
7.4 Preservation of Corporate Existence
and Related Matters. Except as permitted by Section 8.4, preserve and
maintain its separate corporate existence and all rights,
franchises, licenses and privileges necessary to the conduct of its
business, and qualify and remain qualified as a foreign corporation
or other entity and authorized to do business in each jurisdiction
in which the failure to so qualify could reasonably be expected to
have a Material Adverse Effect.
SECTION
7.5 Maintenance of Property and
Licenses.
(a) In addition to the
requirements of any of the Security Documents, protect and preserve
all Properties necessary in and material to its business, including
copyrights, patents, trade names, service marks and trademarks;
maintain in good working order and condition, ordinary wear and
tear and permitted dispositions excepted, all buildings, equipment
and other tangible real and personal property; and from time to
time make or cause to be made all repairs, renewals and
replacements thereof and additions to such Property necessary for
the conduct of its business, so that the business carried on in
connection therewith may be conducted in a commercially reasonable
manner, in each case except as such action or inaction would not
reasonably be expected to result in a Material Adverse
Effect.
(b) Maintain, in full
force and effect in all material respects, each and every license,
permit, certification, qualification, approval or franchise issued
by any Governmental Authority (each a “License”) required for
each of them to conduct their respective businesses as presently
conducted, except where the failure to do so could not reasonably
be expected to have a Material Adverse Effect.
SECTION
7.6 Insurance. Maintain insurance
with financially sound and reputable insurance companies against at
least such risks and in at least such amounts as are customarily
maintained by similar businesses and as may be required by
Applicable Law and as are required by any Security Documents
(including, without limitation, hazard and business interruption
insurance). All such insurance shall, (a) provide that no
cancellation shall be effective until at least 30 days after
receipt by the Administrative Agent of written notice thereof (or
10 days’ in the case of cancellation for non-payment of
premiums) and (b) name the Administrative Agent as an additional
insured party or lender’s loss payee, as applicable. On the
Closing Date and from time to time thereafter, deliver to the
Administrative Agent upon its request (but no more frequently than
annually unless an Event of Default has occurred and is continuing)
information in reasonable detail as to the insurance then in
effect, stating the names of the insurance companies, the amounts
and rates of the insurance, the dates of the expiration thereof and
the properties and risks covered thereby.
SECTION
7.7 Accounting Methods and Financial
Records. Maintain a system of accounting, and keep proper
books, records and accounts (which shall be true and complete in
all material respects) as may be required or as may be necessary to
permit the preparation of financial statements in accordance with
GAAP and in compliance in all material respects with the
regulations of any Governmental Authority having jurisdiction over
it or any of its Properties.
SECTION
7.8 Payment of Taxes. Pay and
perform all taxes, assessments and other governmental charges that
may be levied or assessed upon it or any of its Property that are
due and payable if the failure to so pay would result in a lien on
Collateral in excess of $5,000,000 having priority to the lien of
Administrative Agent; provided that the Borrowers or
such Subsidiary may contest any item in good faith so long as
adequate reserves are maintained with respect thereto in accordance
with GAAP.
SECTION
7.9 Compliance with Laws and
Approvals. Observe and remain in compliance with all
Applicable Laws and maintain in full force and effect all
Governmental Approvals, in each case applicable to the conduct of
its business except where the failure to do so could not reasonably
be expected to have a Material Adverse Effect.
-64-
SECTION
7.10 Environmental Laws. In addition
to and without limiting the generality of Section 7.9, except where
the failure to so comply could not, individually or in the
aggregate, reasonably be expected to result in a Material Adverse
Effect, (a) comply with, and ensure such compliance by all tenants
and subtenants with all applicable Environmental Laws and obtain
and comply with and maintain, and ensure that all tenants and
subtenants, if any, obtain and comply with and maintain, any and
all licenses, approvals, notifications, registrations or permits
required by applicable Environmental Laws, (b) conduct and
complete all investigations, studies, sampling and testing, and all
remedial, removal and other actions required under Environmental
Laws, and promptly comply with all lawful orders and directives of
any Governmental Authority regarding Environmental Laws, and
(c) defend, indemnify and hold harmless the Administrative
Agent and the Lenders, and their respective parents, Subsidiaries,
Affiliates, employees, agents, officers and directors, from and
against any claims, demands, penalties, fines, liabilities,
settlements, damages, costs and expenses of whatever kind or nature
known or unknown, contingent or otherwise, arising out of, or in
any way relating to the presence of Hazardous Materials, or the
violation of, non-compliance with or liability under any
Environmental Laws applicable to the operations of the Borrowers or
any such Subsidiary, or any orders, requirements or demands of
Governmental Authorities related thereto, including, without
limitation, reasonable attorney’s and consultant’s
fees, investigation and laboratory fees, response costs, court
costs and litigation expenses, except to the extent that any of the
foregoing directly result from the gross negligence or willful
misconduct of the party seeking indemnification therefor, as
determined by a court of competent jurisdiction by final
non-appealable judgment.
SECTION
7.11 Compliance with ERISA. In
addition to and without limiting the generality of Section 7.9,
(a) except where the failure to so comply could not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect, (i) comply with applicable provisions
of ERISA, the Code and the regulations and published
interpretations thereunder with respect to all Employee Benefit
Plans, (ii) not take any action or fail to take action the
result of which could reasonably be expected to result in a
liability to the PBGC or to a Multiemployer Plan, (iii) not
participate in any prohibited transaction that could result in any
civil penalty under ERISA or tax under the Code and (iv) operate
each Employee Benefit Plan in such a manner that will not incur any
tax liability under Section 4980B of the Code or any liability
to any qualified beneficiary as defined in Section 4980B of
the Code and (b) furnish to the Administrative Agent upon the
Administrative Agent’s request such additional information
about any Employee Benefit Plan as may be reasonably requested by
the Administrative Agent.
SECTION
7.12 Compliance with Material
Contracts. Comply in all material respects with each
Material Contract; provided, that the Borrowers or
any such Subsidiary may contest the terms and conditions of any
such Material Contract in good faith through applicable proceedings
so long as adequate reserves are maintained in accordance with
GAAP.
SECTION
7.13 Visits and Inspections. Permit
representatives of the Administrative Agent or any Lender, from
time to time upon prior reasonable notice and at such times during
normal business hours, all at the expense of the Borrowers, to
visit and inspect its properties; inspect, audit and make extracts
from its books, records and files, including, but not limited to,
management letters prepared by independent accountants; and discuss
with its principal officers, and its independent accountants, its
business, assets, liabilities, financial condition, results of
operations and business prospects; provided that excluding any
such visits and inspections during the continuation of an Event of
Default, the Administrative Agent shall not exercise such rights
more often than one (1) time during any calendar year at the
Borrowers’ expense (and no Lender may exercise any such right
independently of the Administrative Agent); provided further that upon the
occurrence and during the continuance of an Event of Default, the
Administrative Agent or any Lender may do any of the foregoing at
the expense of the Borrowers at any time without advance
notice.
SECTION
7.14 Additional
Subsidiaries.
(a) Additional Domestic
Subsidiaries. Promptly after the creation or acquisition of
any Domestic Subsidiary (and, in any event, within thirty (30) days
after such creation or acquisition, as such time period may be
extended by the Administrative Agent in its sole discretion) (x)
deliver to the Administrative Agent such original certificated
Equity Interests or other certificates and stock or other transfer
powers evidencing the Equity Interests of such Domestic Subsidiary
and (y) cause such Domestic Subsidiary to (i) become a US
Guarantor by delivering to the Administrative Agent a duly executed
supplement to the US Subsidiary Guaranty Agreement or such other
document as the Administrative Agent shall deem appropriate for
such purpose, (ii) grant a security interest in
all
-65-
Collateral (subject
to the exceptions specified in the applicable Security Documents)
owned by such Domestic Subsidiary by delivering to the
Administrative Agent a duly executed supplement to each applicable
Security Document or such other document as the Administrative
Agent shall deem appropriate for such purpose and comply with the
terms of each applicable Security Document, (iii) deliver to
the Administrative Agent such opinions, documents and certificates
referred to in Section 5.1 as may be
reasonably requested by the Administrative Agent, (iv)
deliver to the Administrative Agent such updated Schedules to the
Loan Documents as requested by the Administrative Agent with
respect to such Domestic Subsidiary, and (v) deliver to the
Administrative Agent such other documents as may be reasonably
requested by the Administrative Agent in connection with the
actions under this Section
7.14(a), all in form, content and scope reasonably
satisfactory to the Administrative Agent; provided, however, that this Section 7.14(a) shall only
apply to a Domestic Subsidiary that would qualify as a US
Guarantor.
(b) Additional Material Foreign
Subsidiaries. Notify the Administrative Agent promptly after
any Person becomes a Material Foreign Subsidiary of any Credit
Party (other than Ubiquiti Hong Kong), and promptly thereafter
(and, in any event, within forty five (45) days after such
notification, as such time period may be extended by the
Administrative Agent in its sole discretion), cause (i) the
applicable Credit Party to deliver to the Administrative Agent
Security Documents pledging one hundred percent (100%) of the total
outstanding Equity Interests of such Material Foreign Subsidiary
and a consent thereto executed by such Material Foreign Subsidiary
(including, without limitation, if applicable, original
certificated Equity Interests (or the equivalent thereof pursuant
to the Applicable Laws and practices of any relevant foreign
jurisdiction) evidencing the Equity Interests of such Material
Foreign Subsidiary, together with an appropriate undated stock or
other transfer power for each certificate duly executed in blank by
the registered owner thereof), (ii) such Material Foreign
Subsidiary to deliver to the Administrative Agent such opinions,
documents and certificates substantially similar to those referred
to in Section 5.1 as may be
reasonably requested by the Administrative Agent and
(iii) such Material Foreign Subsidiary to deliver to the
Administrative Agent such updated Schedules to the Loan Documents
as requested by the Administrative Agent with regard to such
Material Foreign Subsidiary and (iv) such Subsidiary to
deliver to the Administrative Agent such other documents as may be
reasonably requested by the Administrative Agent in connection with
the foregoing, all in form, content and scope reasonably
satisfactory to the Administrative Agent; provided, however, that if the pledge
pursuant to this Section
7.14(b) is to provide security for a US Obligation, (x) then
only Equity Interests in a Material First-Tier Foreign Subsidiary
shall be pledged and (y) the pledge
pursuant to this Section 7.14(b)
shall be limited to sixty five percent
(65%) of the Equity Interests of the total outstanding
Equity Interests of such Material First-Tier Foreign Subsidiary
that are entitled to vote and one hundred percent (100%) of the
total outstanding Equity Interests of such Material First-Tier
Foreign Subsidiary that are not entitled to vote.
(c) Merger Subsidiaries.
Notwithstanding the foregoing, to the extent any new Subsidiary is
created solely for the purpose of consummating a merger transaction
pursuant to a Permitted Acquisition, and such new Subsidiary at no
time holds any assets or liabilities other than any merger
consideration contributed to it substantially contemporaneously
with the closing of such merger transaction, such new Subsidiary
shall not be required to take the actions set forth in Section 7.14(a) or
(b), as applicable,
until the consummation of such Permitted Acquisition (at which
time, the surviving entity of the respective merger transaction
shall be required to so comply with Section 7.14(a) or
(b), as applicable,
within thirty (30) days of the consummation of such Permitted
Acquisition, as such time period may be extended by the
Administrative Agent in its sole discretion).
(d) Material Foreign Subsidiaries.
If at any time the aggregate amount of assets or revenues of all
Foreign Subsidiaries that are not Material Foreign Subsidiaries,
determined as of the end of the most recent Fiscal Year for which
financial statements have been delivered, exceed 15% of the
Consolidated assets or revenues of the Parent Borrower and its
Subsidiaries as of such date, the Parent Borrower shall designate
additional Foreign Subsidiaries as Material Foreign Subsidiaries in
order to satisfy such 15% limit and thereafter comply with the
requirements of Section
7.14(b) with respect thereto.
(e) Exclusions. The provisions of
this Section 7.14
shall not apply to assets as to which the Administrative Agent and
the Parent Borrower shall reasonably determine that the costs and
burdens of obtaining a security interest therein or perfection
thereof outweigh the value of the security afforded
thereby.
-66-
SECTION
7.15 Use of Proceeds. The Borrowers
shall use the proceeds of the Loans (a) to refinance the
Indebtedness outstanding under the Existing Credit Agreement,
(b) to pay fees, commissions and expenses in connection with
the Transactions, (c) to repurchase Equity Interests of any Credit
Party or to make dividends to the holders of shares of any Equity
Interests of any Credit Party and (d) for working capital and
general corporate purposes of the Parent Borrower and its
Subsidiaries. No Borrower will request any Extension of Credit, and
no Borrower shall directly or, to such Borrower’s knowledge,
indirectly use, and shall ensure that its Subsidiaries and its or
their respective directors, officers, employees and agents shall
not directly or, to such Borrower’s or such
Subsidiary’s knowledge, indirectly use, the proceeds of any
Extension of Credit (i) in furtherance of an offer, payment,
promise to pay, or authorization of the payment or giving of money,
or anything else of value, to any Person in violation of any
Anti-Corruption Laws, (ii) for the purpose of funding, financing or
facilitating any activities, business or transaction of or with any
Sanctioned Person, or in any Sanctioned Country, or (iii) in any
manner that would result in the violation of any Sanctions
applicable to any party hereto.
SECTION
7.16 Further Assurances. Execute any
and all further documents, financing statements, agreements and
instruments, and take all such further actions (including the
filing and recording of financing statements and other documents),
which may be required under any Applicable Law, or which the
Administrative Agent or the Required Lenders may reasonably
request, to effectuate the transactions contemplated by the Loan
Documents or to grant, preserve, protect or perfect the Liens
created or intended to be created by the Security Documents or the
validity or priority of any such Lien, all at the expense of the
Credit Parties. The Borrowers also agree to provide to
the Administrative Agent, from time to time upon the reasonable
request by the Administrative Agent, evidence reasonably
satisfactory to the Administrative Agent as to the perfection and
priority of the Liens created or intended to be created by the
Security Documents.
SECTION
7.17 Anti-Corruption Laws and
Sanctions. The Borrowers will maintain in effect and enforce
policies and procedures designed to ensure compliance by the
Borrowers, their respective Subsidiaries and their respective
directors, officers, employees and agents with Anti-Corruption Laws
and applicable Sanctions.
ARTICLE
VIII
NEGATIVE
COVENANTS
Until
all of the Obligations (other than contingent, indemnification
obligations not then due) have been paid and satisfied in full in
cash, all Letters of Credit have been terminated or expired (or
been Cash Collateralized or other arrangements with respect thereto
have been made that are satisfactory to the Issuing Lender) and the
Revolving Credit Commitments
terminated, the Credit Parties will not, and will not permit any of
their respective Subsidiaries to:
SECTION
8.1 Indebtedness. Create, incur,
assume or suffer to exist any Indebtedness except:
(a) the
Obligations;
(b) Indebtedness and
obligations owing under Hedge Agreements entered into in order to
manage existing or anticipated interest rate, exchange rate or
commodity price risks and not for speculative
purposes;
(c) Indebtedness
existing on the Closing Date and listed on Schedule 8.1, and any
refinancings, refundings, renewals or extensions thereof;
provided that
(i) the principal amount of such Indebtedness is not increased
at the time of such refinancing, refunding, renewal or extension
except by an amount equal to a reasonable premium or other
reasonable amount paid, and fees and expenses reasonably incurred,
in connection with such refinancing and by an amount equal to any
existing commitments unutilized thereunder, (ii) the final
maturity date and weighted average life of such refinancing,
refunding, renewal or extension shall not be prior to or shorter
than that applicable to the Indebtedness immediately prior to such
refinancing, refunding, renewal or extension and (iii) any
refinancing, refunding, renewal or extension of any Subordinated
Indebtedness shall be (A) on subordination terms at least as
favorable to the Lenders and (B) not materially more
restrictive on the Parent Borrower and its Subsidiaries than the
Subordinated Indebtedness being refinanced, refunded, renewed or
extended;
-67-
(d) Indebtedness
incurred in connection with Capital Leases and purchase money
Indebtedness in an aggregate amount not to exceed $25,000,000 at
any time outstanding;
(e) Guarantees with
respect to Indebtedness permitted pursuant to this Section other
than subsections
(f) and (j);
provided that any
Guarantees with respect to Subordinated Indebtedness permitted
pursuant to subsection
(h) shall be subordinated in right and time of payment to
the Obligations on the same terms and conditions as such
Subordinated Indebtedness;
(f) unsecured
intercompany Indebtedness:
(i) owed
by any Credit Party to another Credit Party;
(ii) owed
by any Credit Party to any Non-Credit Party (provided that such Indebtedness
shall be subordinated to the Obligations in a manner reasonably
satisfactory to the Administrative Agent);
(iii) owed
by any Non-Credit Party to any other Non-Credit Party;
and
(iv) owed
by any Non-Credit Party to any Credit Party to the extent permitted
pursuant to Section
8.3(a)(vi);
(g) Indebtedness
arising from the honoring by a bank or other financial institution
of a check, draft or other similar instrument drawn against
insufficient funds in the ordinary course of business;
(h) Subordinated
Indebtedness; provided, that in the case of
each incurrence of such Subordinated Indebtedness, (i) no
Default or Event of Default shall have occurred and be continuing
or would be caused by the incurrence of such Subordinated
Indebtedness and (ii) the Administrative Agent shall have
received satisfactory written evidence that the Parent Borrower
would be in compliance with the financial covenants set forth in
Section 8.13
on a pro forma basis after giving effect to the issuance of any
such Subordinated Indebtedness;
(i) Indebtedness under
performance bonds, surety bonds, release, appeal and similar bonds,
statutory obligations or with respect to workers’
compensation claims, in each case incurred in the ordinary course
of business, and reimbursement obligations in respect of any of the
foregoing;
(j) Indebtedness (i) of
a Person or Indebtedness attaching to assets of a Person that, in
either case, becomes a Subsidiary of a Credit Party or Indebtedness
attaching to assets that are acquired by a Credit Party, in each
case after the Closing Date as the result of a Permitted
Acquisition (or Indebtedness assumed by such Person pursuant to a
Permitted Acquisition as a result of a merger or consolidation to
effectuate a Permitted Acquisition), in an aggregate principal
amount, when added to the aggregate principal amounts of
Indebtedness incurred pursuant to subclause (ii) below, not to
exceed at any time $15,000,000; provided that such Indebtedness
existed at the time such Person became a Subsidiary or at the time
such assets were acquired and, in each case, was not created in
anticipation thereof, or (ii) owed to the seller of any property
acquired pursuant to a Permitted Acquisition in an aggregate
principal amount, when added to the aggregate principal amounts of
Indebtedness incurred pursuant to subclause (i) above, not to
exceed $15,000,000 at any one time outstanding;
(k) contingent
liabilities in respect of any indemnification obligation,
adjustment of purchase price, non-compete, or similar obligation
incurred in connection with the consummation of one or more
Permitted Acquisitions;
(l) Indebtedness
incurred in the ordinary course of business in respect of (i) Cash
Management Agreements with a Cash Management Bank and (ii) other
credit cards, credit card processing services, debit cards, stored
value cards, commercial cards (including so-called “purchase
cards”, “procurement cards” or
“p-cards”), or cash management services of any Foreign
Subsidiaries in an aggregate principal amount not to exceed
$20,000,000 at any time outstanding; and
(m) Indebtedness not
otherwise permitted pursuant to this Section in an aggregate
principal amount not to exceed $25,000,000 at any time
outstanding.
-68-
SECTION
8.2 Liens. Create, incur, assume or
suffer to exist, any Lien on or with respect to any of its
Property, whether now owned or hereafter acquired,
except:
(a) Liens created
pursuant to the Loan Documents (including, without limitation,
Liens in favor of the Swingline Lender and/or the Issuing Lender,
as applicable, on Cash Collateral granted pursuant to the Loan
Documents);
(b) Liens in existence
on the Closing Date and described on Schedule 8.2, and the
replacement, renewal or extension thereof (including Liens
incurred, assumed or suffered to exist in connection with any
refinancing, refunding, renewal or extension of Indebtedness
pursuant to Section 8.1(c) (solely to
the extent that such Liens were in existence on the Closing Date
and described on Schedule
8.2)); provided that the scope of any
such Lien shall not be increased, or otherwise expanded, to cover
any additional property or type of asset, as applicable, beyond
that in existence on the Closing Date, except for products and
proceeds of the foregoing;
(c) Liens for taxes,
assessments and other governmental charges or levies (excluding any
Lien imposed pursuant to any of the provisions of ERISA or
Environmental Laws) (i) not yet due or as to which the period
of grace (not to exceed thirty (30) days), if any, related thereto
has not expired or (ii) which are being contested in good
faith and by appropriate proceedings if adequate reserves are
maintained to the extent required by GAAP or applicable local
accounting standards;
(d) the claims of
materialmen, mechanics, carriers, warehousemen, processors or
landlords for labor, materials, supplies or rentals incurred in the
ordinary course of business, which (i) are not overdue for a
period of more than thirty (30) days, or if more than thirty (30)
days overdue, no action has been taken to enforce such Liens and
such Liens are being contested in good faith and by appropriate
proceedings if adequate reserves are maintained to the extent
required by GAAP or applicable local accounting standards and
(ii) do not, individually or in the aggregate, materially
impair the use thereof in the operation of the business of the
Parent Borrower or any of its Subsidiaries;
(e) deposits or pledges
made in the ordinary course of business in connection with, or to
secure payment of, obligations under workers’ compensation,
unemployment insurance and other types of social security or
similar legislation, or to secure the performance of bids, trade
contracts and leases (other than Indebtedness), statutory
obligations, surety bonds (other than bonds related to judgments or
litigation), performance bonds and other obligations of a like
nature incurred in the ordinary course of business, in each case,
so long as no foreclosure sale or similar proceeding has been
commenced with respect to any portion of the Collateral on account
thereof;
(f) encumbrances in the
nature of zoning restrictions, easements and rights or restrictions
of record on the use of real property, which in the aggregate are
not substantial in amount and which do not, in any case, detract
from the value of such property or impair the use thereof in the
ordinary conduct of business;
(g) Liens arising from
the filing of precautionary UCC financing statements (or similar
Liens in foreign jurisdictions) relating solely to personal
property leased pursuant to operating leases entered into in the
ordinary course of business of the Borrowers and their
Subsidiaries;
(h) Liens securing
Indebtedness permitted under Section 8.1(d);
provided that
(i) such Liens shall be created concurrently with or within 90
days after the acquisition, repair, improvement or lease, as
applicable, of the related Property, (ii) such Liens do not at
any time encumber any property other than the Property financed by
such Indebtedness and the proceeds thereof and (iii) the
principal amount of Indebtedness secured by any such Lien shall at
no time exceed one hundred percent (100%) of the price for the
purchase, repair improvement or lease amount (as applicable) of
such Property;
(i) Liens securing
judgments for the payment of money not constituting an Event of
Default under Section 9.1(m) or securing
appeal or other surety bonds relating to such
judgments;
(j) (i) Liens of a
collecting bank arising in the ordinary course of business under
Section 4-210 of the Uniform Commercial Code in effect in the
relevant jurisdiction or similar law of a foreign jurisdiction and
(ii) Liens of any depositary bank in connection with
statutory, common law and contractual rights of set-off and
recoupment with respect to any deposit account of the Borrowers or
any Subsidiary thereof;
-69-
(k) (i) contractual
or statutory Liens of landlords to the extent relating to the
property and assets relating to any lease agreements with such
landlord, and (ii) contractual Liens of suppliers (including
sellers of goods) or customers granted in the ordinary course of
business to the extent limited to the property or assets relating
to such contract;
(l) any interest or
title of a licensor, sublicensor, lessor or sublessor with respect
to any assets under any license or lease agreement which do not
(i) interfere in any material respect with the business of the
Parent Borrower or its Subsidiaries or materially detract from the
value of the relevant assets of the Parent Borrower or its
Subsidiaries or (ii) secure any Indebtedness;
(m) Liens in favor of
customs and revenue authorities arising as a matter of law to
secure payment of customs duties in connection with the importation
of goods;
(n) Liens solely on any
▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by a Borrower or any of its
Subsidiaries in connection with any letter of intent or purchase
agreement with respect to a Permitted Acquisition;
(o) Liens securing
Indebtedness permitted under Section 8.1(j); provided
that (i) any such Lien existed at the time such Person became a
Subsidiary or at the time such assets were acquired and, in each
case, was not created in anticipation thereof and (ii) any such
Lien secures only those obligations which it secures on the date
that such Person becomes a Subsidiary or the date of such merger or
the date of such acquisition; and
(p) Liens not otherwise
permitted hereunder on assets other than the Collateral securing
Indebtedness or other obligations in the aggregate principal amount
not to exceed $25,000,000 at any time outstanding.
Notwithstanding
the foregoing, in no event shall this Section permit any Liens on
(x) any Intellectual Property (other than agreements among the
Parent Borrower, Ubiquiti Hong Kong and Ubiquiti Cayman existing on
the Closing Date, as such agreements are amended from time to time
in accordance with their terms; provided such amendments are
not materially adverse to the Lenders’ interests) and (y)
cash and Cash Equivalents (other than Liens permitted under
Section 8.2(a) or
(j)) of the Parent
Borrower or any Subsidiary.
SECTION
8.3 Investments. Purchase, own,
invest in or otherwise acquire (in one transaction or a series of
transactions), directly or indirectly, any Equity Interests,
interests in any partnership or joint venture (including, without
limitation, the creation or capitalization of any Subsidiary),
evidence of Indebtedness or other obligation or security,
substantially all or a portion of the business or assets of any
other Person or any other investment or interest whatsoever in any
other Person, or make or permit to exist, directly or indirectly,
any loans, advances or extensions of credit to, or any investment
in cash or by delivery of Property in, any Person (excluding (a)
commission, travel, and similar advances to officers and employees
of such Person made in the ordinary course of business, and (b) any
evidence of Indebtedness or other obligation in the nature of
accounts receivable of the Parent Borrower and/or its Subsidiaries
entered into in the ordinary course of business) (all the
foregoing, “Investments”)
except:
(a) (i) Investments
existing on the Closing Date in Subsidiaries existing on the
Closing Date;
(ii) Investments
existing on the Closing Date (other than Investments in
Subsidiaries existing on the Closing Date) and described on
Schedule
8.3;
(iii) Investments
made after the Closing Date by any Credit Party in any other Credit
Party;
(iv) Investments
made after the Closing Date by any Non-Credit Party in any other
Non-Credit Party; and
(v) Investments
made after the Closing Date by any Non-Credit Party in any Credit
Party;
(vi) Investments
made after the Closing Date (other than Intellectual Property) by
any Credit Party in any Non-Credit Party in an aggregate amount at
any time outstanding not to exceed (A) $15,000,000 less (B) the amount of
outstanding Investments made pursuant to Section 8.3(g)(ii);
and
-70-
(vii) Investments
made after the Closing Date by any Credit Party in any newly formed
Non-Credit Party which is required by law to maintain a minimum net
capital requirement or as may be otherwise required by applicable
law or constituting an initial capitalization of such Non-Credit
Party, in each case not to exceed $250,000 per Non-Credit Party and
$5,000,000 in the aggregate during the term of this
Agreement;
(b) Investments in cash
and Cash Equivalents;
(c) Investments
consisting of Capital Expenditures permitted by this
Agreement;
(d) deposits made in
the ordinary course of business to secure the performance of leases
or other obligations as permitted by Section 8.2;
(e) Hedge Agreements
permitted pursuant to Section 8.1;
(f) purchases of assets
or services in the ordinary course of business;
(g) Investments in the
form of:
(i) Permitted
Acquisitions to the extent that any Person or Property acquired in
such acquisition becomes a part of either Borrower or a Guarantor
or becomes a Guarantor in the manner contemplated by Section 7.14;
and
(ii) Permitted
Acquisitions to the extent that any Person or Property acquired in
such acquisition does not become a Guarantor or a part of a
Guarantor or either Borrower in an aggregate amount at any time
outstanding not to exceed (A) $15,000,000 less (B) the amount of
outstanding Investments made pursuant to Section 8.3(a)(vi) for
such Fiscal Year;
(h) Investments in the
form of Restricted Payments permitted pursuant to Section 8.6;
(i) Guarantees
permitted pursuant to Section 8.1;
(j) Investments
(including debt obligations) received in connection with the
bankruptcy or reorganization of customers or suppliers and in
settlement of delinquent obligations of, and other disputes with,
customers or suppliers;
(k) Investments
consisting of notes receivable of, or prepaid royalties and other
credit extensions, to customers and suppliers, in the ordinary
course of business; provided that this paragraph (k) shall not apply
to Investments of the Borrowers in any Subsidiary; and
(l) Investments not
otherwise permitted pursuant to this Section in an aggregate amount
not to exceed $500,000 at any time; provided that, immediately
before and immediately after giving pro forma effect to any such
Investments, no Default or Event of Default shall have occurred and
be continuing.
For
purposes of determining the amount of any Investment outstanding
for purposes of this Section 8.3, such amount
shall be deemed to be the amount of such Investment when made,
purchased or acquired (without adjustment for subsequent increases
or decreases in the value of such Investment) less any amount realized in
respect of such Investment upon the sale, collection or return of
capital (not to exceed the original amount invested).
SECTION
8.4 Fundamental Changes. Merge,
consolidate or enter into any similar combination with, or enter
into any Asset Disposition of all or substantially all of its
assets (whether in a single transaction or a series of
transactions) with, any other Person or liquidate, wind-up or
dissolve itself (or suffer any liquidation or dissolution)
except:
-71-
(a) (i) any
Wholly-Owned Subsidiary of the Parent Borrower (other than the
Cayman Borrower) may be merged, amalgamated or consolidated with or
into the Parent Borrower (provided that the Parent
Borrower shall be the continuing or surviving entity) or
(ii) any Wholly-Owned Subsidiary of the Cayman Borrower may be
merged, amalgamated or consolidated with or into the Cayman
Borrower or any Guarantor (provided that (x) in the case
of a merger, amalgamation or consolidation involving the Cayman
Borrower, the Cayman Borrower shall be the continuing or surviving
entity and (y) in the case of a merger, amalgamation or
consolidation involving a Guarantor, the Guarantor shall be the
continuing or surviving entity);
(b) any Non-Credit
Party may be merged, amalgamated or consolidated with or into, or
be liquidated into, any other Non-Credit Party;
(c) any Subsidiary
(other than the Cayman Borrower) may dispose of all or
substantially all of its assets (upon voluntary liquidation,
dissolution, winding up or otherwise) to the Parent Borrower or any
Guarantor; provided
that, with respect to any such disposition by any Non-Credit Party,
the consideration for such disposition shall not exceed the fair
value of such assets;
(d) any Non-Credit
Party may dispose of all or substantially all of its assets, upon
voluntary liquidation, dissolution, winding up or otherwise, to any
other Non-Credit Party;
(e) any Wholly-Owned
Subsidiary of the Parent Borrower may merge with or into the Person
such Wholly-Owned Subsidiary was formed to acquire in connection
with any acquisition permitted hereunder; provided that in the case of
any merger involving a Wholly-Owned Subsidiary that is a Guarantor,
(i) a Guarantor shall be the continuing or surviving entity or (ii)
simultaneously with such transaction, the continuing or surviving
entity shall become a Guarantor and the Borrowers shall comply with
Section 7.14
in connection therewith; and
(f) any Person may
merge into the Parent Borrower or any of its Wholly-Owned
Subsidiaries in connection with a Permitted Acquisition;
provided that
(i) in the case of a merger involving a Borrower or a
Guarantor, the continuing or surviving Person shall be a Borrower
or such Guarantor and (ii) the continuing or surviving Person
shall be a Wholly-Owned Subsidiary of the Parent
Borrower.
Notwithstanding
the foregoing, at all times during the term of this Agreement, (i)
Ubiquiti Hong Kong and Ubiquiti Cayman shall remain directly owned
Subsidiaries of the Cayman Borrower and (ii) the Cayman Borrower
shall remain a directly owned Subsidiary of the Parent
Borrower.
SECTION
8.5 Asset Dispositions. Make any
Asset Disposition except:
(a) the sale of
obsolete, worn-out or surplus assets, or other assets no longer
used or usable in the business of the Parent Borrower or any of its
Subsidiaries;
(b) licenses and
sublicenses of intellectual property rights in the ordinary course
of business not interfering, individually or in the aggregate, in
any material respect with the conduct of the business of the Parent
Borrower and its Subsidiaries;
(c) leases, subleases,
licenses or sublicenses of real or personal property granted by the
Parent Borrower or any of its Subsidiaries to others in the
ordinary course of business not detracting from the value of such
real or personal property or interfering in any material respect
with the business of the Parent Borrower or any of its
Subsidiaries;
(d) Asset Dispositions
in connection with transactions permitted by Section 8.4;
(e) the sale of
inventory in the ordinary course of business;
(f) the transfer of
assets to either Borrower or any Guarantor pursuant to any other
transaction permitted pursuant to Section 8.4;
-72-
(g) the write-off,
discount, sale or other Asset Disposition of defaulted or past-due
receivables and similar obligations in the ordinary course of
business and not undertaken as part of an accounts receivable
financing transaction;
(h) the Asset
Disposition of any Hedge Agreement;
(i) Asset Dispositions
of Investments in cash and Cash Equivalents;
(j) the transfer by any
Credit Party of its assets to any other Credit Party;
(k) the transfer by any
Credit Party of its assets (other than Intellectual Property) to
any Non-Credit Party as an Investment in accordance with
Section
8.3(a)(vi);
(l) the transfer by any
Non-Credit Party of its assets to any Credit Party (provided that in connection
with any new transfer, such Credit Party shall not pay more than an
amount equal to the fair market value of such assets as determined
in good faith at the time of such transfer);
(m) the transfer by any
Non-Credit Party of its assets to any other Non-Credit
Party;
(n) any involuntary
loss, damage or destruction of property;
(o) any involuntary
condemnation, seizure or taking, by exercise of the power of
eminent domain or otherwise, or confiscation or requisition of use
of property;
(p) (i) the lapse of
registered patents, trademarks, copyrights and other intellectual
property rights of any Borrower and any of its Subsidiaries or (ii)
the abandonment of patents, trademarks, copyrights, or other
intellectual property rights in the ordinary course of business, so
long as (in each case under clauses (i) and (ii)), such lapse is
not materially adverse to the interests of the Lenders;
and
(q) Asset Dispositions
not otherwise permitted pursuant to this Section; provided that (i) at the time
of such Asset Disposition, no Default or Event of Default shall
exist or would result from such Asset Disposition, (ii) such Asset
Disposition is made for fair market value and the consideration
received shall be no less than 75% in cash, (iii) the aggregate
fair market value of all property disposed of in reliance on this
clause (q) shall
not exceed $15,000,000 during any Fiscal Year and (iv) the
aggregate fair market value of any Intellectual Property disposed
of in reliance on this clause (q) shall not exceed
$5,000,000 during any Fiscal Year.
SECTION
8.6 Restricted Payments. Declare or
pay any dividend on, or make any payment or other distribution on
account of, or purchase, redeem, retire or otherwise acquire
(directly or indirectly), or set apart assets for a sinking or
other analogous fund for the purchase, redemption, retirement or
other acquisition of, any class of Equity Interests of any Credit
Party or any Subsidiary thereof, or make any distribution of cash,
property or assets to the holders of shares of any Equity Interests
of any Credit Party or any Subsidiary thereof (all of the
foregoing, the “Restricted Payments”)
provided
that:
(a) so long as no
Default or Event of Default has occurred and is continuing or would
result therefrom, the
Parent Borrower or any of its Subsidiaries may pay dividends in
shares of its own Qualified Equity Interests;
(b) any Subsidiary of
the Parent Borrower may make Restricted Payments to any Credit
Party;
(c) any Non-Credit
Party may make Restricted Payments to any other Non-Credit Party
(and, if applicable, to other holders of its outstanding Equity
Interests on a ratable basis);
(d) Restricted Payments
pursuant to and in accordance with stock option plans or other
benefit plans for directors, management, employees or consultants
of the Parent Borrower and its Subsidiaries in an aggregate amount
not to exceed $5,000,000 in any Fiscal Year; and
-73-
(e) the Borrowers shall
be permitted to make Restricted Payments; provided that (i) no Default or
Event of Default has occurred and is continuing or would result
therefrom, and (ii) the pro forma Consolidated Total Leverage Ratio
based on the most recent financial statements that have been
delivered pursuant to Section 7.1(a) or (b) or, from
the period from the Closing Date until such financial statements
are required to be delivered, the financial statements delivered to
the Administrative Agent prior to the Closing Date for the period
ending September 30, 2017, as applicable, calculated on a pro forma
basis after giving effect to such Restricted Payment, does not
exceed 3.00 to 1.00.
SECTION
8.7 Transactions with Affiliates.
Directly or indirectly enter into any transaction, including,
without limitation, any purchase, sale, lease or exchange of
Property, the rendering of any service or the payment of any
management, advisory or similar fees, with (a) any officer,
director, holder of any Equity Interests in, or other Affiliate of,
the Parent Borrower or any of its Subsidiaries or (b) any
Affiliate of any such officer, director or holder, other
than:
(i) transactions
permitted by Sections
8.1, 8.3,
8.4, 8.5, and 8.6;
(ii) transactions
existing on the Closing Date and described on Schedule 8.7;
(iii) transactions
(x) among Credit Parties and (y) among Non-Credit
Parties;
(iv) other
transactions in the ordinary course of business on terms at least
as favorable as could be obtained by it in arm’s-length
transaction with an unrelated third party, as determined in good
faith by either ▇▇▇▇▇▇▇▇ and, if such transaction involves over
$15,000,000, the board of directors (or equivalent governing body)
of the Parent Borrower;
(v) employment and
severance arrangements (including equity incentive plans and
employee benefit plans and arrangements) and indemnification
agreements or arrangements with their respective directors,
officers and employees in the ordinary course of
business;
(vi) payment
of customary fees and reasonable out of pocket costs to, and
indemnities for the benefit of, directors, officers and employees
of the Parent Borrower and its Subsidiaries in the ordinary course
of business to the extent attributable to the ownership or
operation of the Parent Borrower and its Subsidiaries;
and
(vii) transfer
pricing arrangements among the Credit Parties and their
Subsidiaries entered into in the ordinary course of business and
consistent with past practices.
SECTION
8.8 Accounting Changes; Organizational
Documents.
(a) Change its Fiscal
Year end, or make (without the consent of the Administrative Agent)
any material change in its accounting treatment and reporting
practices, except as required by GAAP or applicable local
accounting standards or to change the Fiscal Year end of a
Subsidiary to conform its fiscal year to that of the Parent
Borrower.
(b) Amend, modify or
change its articles of incorporation (or corporate charter or other
similar organizational documents) or amend, modify or change its
bylaws (or other similar documents) in any manner materially
adverse to the rights or interests of the Lenders.
SECTION
8.9 Payments and Modifications of
Subordinated Indebtedness.
(a) Amend, modify,
waive or supplement (or permit the modification, amendment, waiver
or supplement of) any of the terms or provisions of any
Subordinated Indebtedness in any respect which would materially and
adversely affect the rights or interests of the Administrative
Agent and Lenders hereunder.
-74-
(b) Cancel, forgive,
make any payment or prepayment on, or redeem or acquire for value
(including, without limitation, (x) by way of depositing with
any trustee with respect thereto money or securities before due for
the purpose of paying when due and (y) at the maturity
thereof) any Subordinated Indebtedness, except:
(i) refinancings,
refundings, renewals, extensions or exchange of any Subordinated
Indebtedness permitted by Section 8.1 and by any
subordination provisions applicable thereto;
(ii) payments
and prepayments of any Subordinated Indebtedness made solely with
the proceeds of Qualified Equity Interests not otherwise required
to prepay Loans pursuant to Section 2.11(b)(ii);
and
(iii) the
payment of interest, expenses and indemnities in respect of
Subordinated Indebtedness (other than any such payments prohibited
by any subordination provisions applicable thereto).
SECTION
8.10 No Further Negative Pledges;
Restrictive Agreements.
(a) Enter into, assume
or be subject to any agreement prohibiting or otherwise restricting
the creation or assumption of any Lien upon its properties or
assets, whether now owned or hereafter acquired, or requiring the
grant of any security for such obligation if security is given for
some other obligation, except (i) pursuant to this Agreement
and the other Loan Documents, (ii) pursuant to any document or
instrument governing Indebtedness incurred pursuant to Section 8.1(d)
(provided that any
such restriction contained therein relates only to the asset or
assets financed thereby), (iii) customary restrictions
contained in the organizational documents of any Non-Credit Party
as of the Closing Date and (iv) customary restrictions in
connection with any Permitted Lien or any document or instrument
governing any Permitted Lien (provided that any such
restriction contained therein relates only to the asset or assets
subject to such Permitted Lien).
(b) Create or otherwise
cause or suffer to exist or become effective any consensual
encumbrance or restriction on the ability of any Credit Party or
any Subsidiary thereof to (i) pay dividends or other
distributions with respect to its Equity Interests to any Credit
Party or (ii) act as a Credit Party pursuant to the Loan
Documents or any renewals, refinancings, exchanges, refundings or
extension thereof, except in each case for such encumbrances or
restrictions existing under or by reason of (A) this Agreement
and the other Loan Documents, (B) Applicable Law, (C) any
document or instrument governing Indebtedness incurred pursuant to
Section 8.1(d)
(provided that any
such restriction contained therein relates only to the asset or
assets acquired in connection therewith), (D) any Permitted
Lien or any document or instrument governing any Permitted Lien
(provided that any
such restriction contained therein relates only to the asset or
assets subject to such Permitted Lien), (E) obligations that
are binding on a Subsidiary at the time such Subsidiary first
becomes a Subsidiary of either Borrower, so long as such
obligations are not entered into in contemplation of such Person
becoming a Subsidiary, (F) customary restrictions contained in
an agreement related to the sale of Property (to the extent such
sale is permitted pursuant to Section 8.5) that limit
the transfer of such Property pending the consummation of such
sale, (G) customary restrictions in leases, subleases,
licenses and sublicenses or asset sale agreements otherwise
permitted by this Agreement so long as such restrictions relate
only to the assets subject thereto and (H) customary
provisions restricting assignment of any agreement entered into in
the ordinary course of business.
SECTION
8.11 Nature of Business. Engage in
any business other than the business conducted by the Parent
Borrower and its Subsidiaries as of the Closing Date and business
activities reasonably related or ancillary thereto or that are
reasonable extensions thereof.
SECTION
8.12 Capital Expenditures. Permit
the aggregate amount of all Capital Expenditures in any Fiscal Year
to exceed $75,000,000; provided that the Credit
Parties and their Subsidiaries may make additional Capital
Expenditures in each such Fiscal Year in an aggregate amount not to
exceed $25,000,000 if (i) the Consolidated Total Leverage Ratio
based on the most recent financial statements provided pursuant to
Section 7.1(a) or
(b), as applicable,
calculated on a pro forma basis after giving effect to such Capital
Expenditures, does not exceed 3.00 to 1.00 and (ii) no Default or
Event of Default exists or would result therefrom.
SECTION
8.13 Financial
Covenants.
-75-
(a) Consolidated Total Leverage
Ratio. As of the last day of any fiscal quarter, permit the
Consolidated Total Leverage Ratio to be greater than 3.25 to
1.00.
(b) Minimum Liquidity. At any time,
permit Liquidity to be less than $250,000,000.
SECTION
8.14 Disposal of Subsidiary
Interests. Permit any Domestic Subsidiary to be a
non-Wholly-Owned Subsidiary except as a result of or in connection
with a dissolution, merger, amalgamation, consolidation or
disposition permitted by Section 8.4 or
8.5.
ARTICLE
IX
DEFAULT
AND REMEDIES
SECTION
9.1 Events of Default. Each of the
following shall constitute an Event of Default:
(a) Default in Payment of Principal of
Loans and Reimbursement Obligations. Either Borrower shall
default in any payment of principal on any Loan or Reimbursement
Obligation when and as due (whether at maturity, by reason of
acceleration or otherwise).
(b) Other Payment Default. Either
Borrower shall default in the payment when and as due (whether at
maturity, by reason of acceleration or otherwise) of interest on
any Loan or Reimbursement Obligation or the payment of any other
Obligation, and such default shall continue for a period of
three (3) Business Days.
(c) Misrepresentation. Any
representation, warranty, certification or statement of fact made
or deemed made by or on behalf of any Credit Party or any
Subsidiary thereof in this Agreement, in any other Loan Document,
or in any document delivered in connection herewith or therewith
that is subject to materiality or Material Adverse Effect
qualifications, shall be incorrect or misleading in any respect
when made or deemed made or any representation, warranty,
certification or statement of fact made or deemed made by or on
behalf of any Credit Party or any Subsidiary thereof in this
Agreement, any other Loan Document, or in any document delivered in
connection herewith or therewith that is not subject to materiality
or Material Adverse Effect qualifications, shall be incorrect or
misleading in any material respect when made or deemed
made.
(d) Default in Performance of Certain
Covenants. Any Credit Party or any Subsidiary thereof shall
default in the performance or observance of any covenant or
agreement contained in Sections 7.1, 7.2 (a) or (c), 7.3(a), 7.4, 7.14, 7.15 or 7.17 or Article VIII.
(e) Default in Performance of Other
Covenants and Conditions. Any Credit Party or any Subsidiary
thereof shall default in the performance or observance of any term,
covenant, condition or agreement contained in this Agreement (other
than as specifically provided for in this Section) or any other
Loan Document and such default shall continue for a period of
thirty (30) days after the earlier of (i) the
Administrative Agent’s delivery of written notice thereof to
the Borrower Agent and (ii) a Responsible Officer of any
Credit Party having obtained knowledge thereof.
(f) Indebtedness Cross-Default. Any
Credit Party or any Subsidiary thereof shall (i) default in
the payment of any Indebtedness (other than the Loans or any
Reimbursement Obligation) the aggregate principal amount (including
undrawn committed or available amounts), or with respect to any
Hedge Agreement, the Hedge Termination Value, of which is in excess
of the Threshold Amount beyond the period of grace if any, provided
in the instrument or agreement under which such Indebtedness was
created, or (ii) default in the observance or performance of
any other agreement or condition relating to any Indebtedness
(other than the Loans or any Reimbursement Obligation) the
aggregate principal amount (including undrawn committed or
available amounts), or with respect to any Hedge Agreement, the
Hedge Termination Value, of which is in excess of the Threshold
Amount or contained in any instrument or agreement evidencing,
securing or relating thereto or any other event shall occur or
condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such
Indebtedness (or a trustee or agent on behalf of such holder or
holders) to cause, with the giving of notice and/or lapse of time,
if required, any such Indebtedness to become due prior to its
stated maturity (any applicable grace period having
expired).
-76-
(g) Attachment. If any material
portion of the Parent Borrower’s, the Cayman Borrower’s
or Ubiquiti Hong Kong’s assets is attached, seized, subjected
to a writ or distress warrant, or is levied upon, or comes into the
possession of any trustee, receiver or person acting in a similar
capacity and such attachment, seizure, writ or distress warrant or
levy has not been removed, discharged or rescinded within thirty
(30) days or in any event not less than five (5) Business Days
prior to the date of any proposed sale thereunder, or if the Parent
Borrower, the Cayman Borrower or Ubiquiti Hong Kong is enjoined,
restrained, or in any way prevented by court order from continuing
to conduct all or any substantial part of its business affairs, or
if a judgment or other claim becomes a lien or encumbrance upon any
substantial portion of the Parent Borrower’s, the Cayman
Borrower’s or Ubiquiti Hong Kong’s assets, or if a
notice of lien, levy, or assessment is filed of record with respect
to any of the Parent Borrower’s material assets by the United
States Government, or any department, agency, or instrumentality
thereof, or by any state, county, municipal or governmental agency,
and the same is not paid within thirty (30) days after the Parent
Borrower, the Cayman Borrower or Ubiquiti Hong Kong receives notice
thereof, provided that none of the foregoing shall constitute an
Event of Default where such action or event is stayed or an
adequate bond has been posted pending a good faith contest by the
Parent Borrower, the Cayman Borrower or Ubiquiti Hong Kong, as
applicable (provided that no Extensions of Credit will be required
to be made during such cure period).
(h) Change in Control. Any Change
in Control shall occur.
(i) Voluntary Bankruptcy
Proceeding. Any Credit Party or any Subsidiary thereof shall
(i) commence a voluntary case under any Debtor Relief Laws,
(ii) file a petition seeking to take advantage of any Debtor
Relief Laws, (iii) consent to or fail to contest in a timely
and appropriate manner any petition filed against it in an
involuntary case under any Debtor Relief Laws, (iv) apply for
or consent to, or fail to contest in a timely and appropriate
manner, the appointment of, or the taking of possession by, a
receiver, custodian, trustee, or liquidator of itself or of a
substantial part of its property, domestic or foreign,
(v) admit in writing its inability to pay its debts as they
become due, (vi) make a general assignment for the benefit of
creditors, or (vii) circulate written resolutions of the
shareholders, convene a meeting of shareholders or take any
corporate action, in each case, for the purpose of authorizing any
of the foregoing.
(j) Involuntary Bankruptcy
Proceeding. A case or other proceeding shall be commenced
against any Credit Party or any Subsidiary thereof in any court of
competent jurisdiction seeking (i) relief under any Debtor
Relief Laws, or (ii) the appointment of a trustee, receiver,
custodian, liquidator or the like for any Credit Party or any
Subsidiary thereof or for all or any substantial part of their
respective assets, domestic or foreign, and such case or proceeding
shall continue without dismissal or stay for a period of
sixty (60) consecutive days, or an order granting the relief
requested in such case or proceeding (including, but not limited
to, an order for relief under such federal bankruptcy laws) shall
be entered.
(k) Failure of Agreements. Any
provision of this Agreement or any provision of any other Loan
Document shall for any reason cease to be valid and binding on any
Credit Party or any Subsidiary thereof party thereto or any such
Person shall so state in writing, or any Loan Document shall for
any reason cease to create a valid and perfected first priority
Lien (subject to Permitted Liens) on, or security interest in, any
of the Collateral purported to be covered thereby with a fair
market value in excess of $2,500,000, in each case other than in
accordance with the express terms hereof or thereof.
(l) ERISA Events. The occurrence of
any of the following events that would reasonably be expected to
have a Material Adverse Effect: (i) any Credit Party or any
ERISA Affiliate fails to make full payment when due of all amounts
which, under the provisions of any Pension Plan or Sections 412 or
430 of the Code, any Credit Party or any ERISA Affiliate is
required to pay as contributions thereto, or (ii) a
Termination Event.
(m) Judgment. A judgment or order
for the payment of money which causes the aggregate amount of all
such judgments or orders (net of any amounts paid or fully covered
by independent third party insurance as to which the relevant
insurance company does not dispute coverage) to exceed the
Threshold Amount shall be entered against any Credit Party or any
Subsidiary thereof by any court and such judgment or order shall
continue without having been discharged, vacated or stayed for a
period of thirty (30) consecutive days after the entry
thereof.
-77-
SECTION
9.2 Remedies. Upon the occurrence
of an Event of Default, with the consent of the Required Lenders,
the Administrative Agent may, or upon the request of the Required
Lenders, the Administrative Agent shall, by notice to the Borrower
Agent:
(a) Acceleration; Termination of Credit
Facility. Terminate the Revolving Credit Commitment and
declare the principal of and interest on the Loans and the
Reimbursement Obligations at the time outstanding, and all other
amounts owed to the Lenders and to the Administrative Agent under
this Agreement or any of the other Loan Documents (including,
without limitation, all L/C Obligations, whether or not the
beneficiaries of the then outstanding Letters of Credit shall have
presented or shall be entitled to present the documents required
thereunder) and all other Obligations, to be forthwith due and
payable, whereupon the same shall immediately become due and
payable without presentment, demand, protest or other notice of any
kind, all of which are expressly waived by each Credit Party,
anything in this Agreement or the other Loan Documents to the
contrary notwithstanding, and terminate the Credit Facility and any
right of the Borrowers to request borrowings or Letters of Credit
thereunder; provided, that upon the
occurrence of an Event of Default specified in Section 9.1(i) or
(j), the Credit
Facility shall be automatically terminated and all Obligations
shall automatically become due and payable without presentment,
demand, protest or other notice of any kind, all of which are
expressly waived by each Credit Party, anything in this Agreement
or in any other Loan Document to the contrary
notwithstanding.
(b) Letters of Credit. With respect
to all Letters of Credit with respect to which presentment for
honor shall not have occurred at the time of an acceleration
pursuant to the preceding paragraph, the Parent Borrower shall at
such time deposit in a Cash Collateral account opened by the
Administrative Agent an amount equal to the aggregate then undrawn
and unexpired amount of such Letters of Credit. Amounts held in
such Cash Collateral account shall be applied by the Administrative
Agent to the payment of drafts drawn under such Letters of Credit,
and the unused portion thereof after all such Letters of Credit
shall have expired or been fully drawn upon, if any, shall be
applied to repay the other Secured Obligations on a pro rata basis. After all such
Letters of Credit shall have expired or been fully drawn upon, the
Reimbursement Obligation shall have been satisfied and all other
Secured Obligations shall have been paid in full, the balance, if
any, in such Cash Collateral account shall be returned to the
Parent Borrower.
(c) General Remedies. Exercise on
behalf of the Secured Parties all of its other rights and remedies
under this Agreement, the other Loan Documents and Applicable Law,
in order to satisfy all of the Secured Obligations.
SECTION
9.3 Rights
and Remedies Cumulative; Non-Waiver; etc.
(a) The enumeration of
the rights and remedies of the Administrative Agent and the Lenders
set forth in this Agreement is not intended to be exhaustive and
the exercise by the Administrative Agent and the Lenders of any
right or remedy shall not preclude the exercise of any other rights
or remedies, all of which shall be cumulative, and shall be in
addition to any other right or remedy given hereunder or under the
other Loan Documents or that may now or hereafter exist at law or
in equity or by suit or otherwise. No delay or failure to take
action on the part of the Administrative Agent or any Lender in
exercising any right, power or privilege shall operate as a waiver
thereof, nor shall any single or partial exercise of any such
right, power or privilege preclude any other or further exercise
thereof or the exercise of any other right, power or privilege or
shall be construed to be a waiver of any Event of Default. No
course of dealing between the Borrowers, the Administrative Agent
and the Lenders or their respective agents or employees shall be
effective to change, modify or discharge any provision of this
Agreement or any of the other Loan Documents or to constitute a
waiver of any Event of Default.
-78-
(b) Notwithstanding
anything to the contrary contained herein or in any other Loan
Document, the authority to enforce rights and remedies hereunder
and under the other Loan Documents against the Credit Parties or
any of them shall be vested exclusively in, and all actions and
proceedings at law in connection with such enforcement shall be
instituted and maintained exclusively by, the Administrative Agent
in accordance with Section 9.2 for the
benefit of all the Lenders and the Issuing Lender; provided that the foregoing
shall not prohibit (a) the Administrative Agent from exercising on
its own behalf the rights and remedies that inure to its benefit
(solely in its capacity as Administrative Agent) hereunder and
under the other Loan Documents, (b) the Issuing Lender or the
Swingline Lender from exercising the rights and remedies that inure
to its benefit (solely in its capacity as the Issuing Lender or
Swingline Lender, as the case may be) hereunder and under the other
Loan Documents, (c) any Lender from exercising setoff rights in
accordance with Section 11.4 (subject to
the terms of Section 4.6), or
(d) any Lender from filing proofs of claim or appearing and
filing pleadings on its own behalf during the pendency of a
proceeding relative to any Credit Party under any Debtor Relief
Law; and provided,
further, that if at
any time there is no Person acting as Administrative Agent
hereunder and under the other Loan Documents, then (i) the Required
Lenders shall have the rights otherwise ascribed to the
Administrative Agent pursuant to Section 9.2 and (ii) in
addition to the matters set forth in clauses (b), (c) and (d) of the preceding proviso
and subject to Section 4.6, any Lender
may, with the consent of the Required Lenders, enforce any rights
and remedies available to it and as authorized by the Required
Lenders.
SECTION
9.4 Crediting of Payments and
Proceeds. In the event that the Obligations have been
accelerated pursuant to Section 9.2 or the
Administrative Agent or any Lender has exercised any remedy set
forth in this Agreement or any other Loan Document, all payments
received on account of the Secured Obligations and all net proceeds
from the enforcement of the Secured Obligations shall be applied by
the Administrative Agent as follows:
First, to payment of that
portion of the Secured Obligations constituting fees, indemnities,
expenses and other amounts, including attorney fees, payable to the
Administrative Agent in its capacity as such, the Issuing Lender in
its capacity as such and the Swingline Lender in its capacity as
such, ratably among the Administrative Agent, the Issuing Lender
and Swingline Lender in proportion to the respective amounts
described in this clause First payable to
them;
Second, to payment of that
portion of the Secured Obligations constituting fees, indemnities
and other amounts (other than principal and interest) payable to
the Lenders under the Loan Documents, including attorney fees,
ratably among the Lenders in proportion to the respective amounts
described in this clause Second payable to
them;
Third, to payment of that
portion of the Secured Obligations constituting accrued and unpaid
interest on the Loans and Reimbursement Obligations, ratably among
the Lenders in proportion to the respective amounts described in
this clause Third
payable to them;
Fourth, to payment of that
portion of the Secured Obligations constituting unpaid principal of
the Loans, Reimbursement Obligations and payment obligations then
owing under Secured Hedge Agreements and Secured Cash Management
Agreements, ratably among the Lenders, the Issuing Lender, the
Hedge Banks and the Cash Management Banks in proportion to the
respective amounts described in this clause Fourth payable to
them;
Fifth, to the Administrative
Agent for the account of the Issuing Lender, to Cash Collateralize
any L/C Obligations then outstanding; and
Last, the balance, if any,
after all of the Secured Obligations have been indefeasibly paid in
full, to the Borrowers or as otherwise required by Applicable
Law.
Notwithstanding the
foregoing, Secured Obligations arising under Secured Cash
Management Agreements and Secured Hedge Agreements shall be
excluded from the application described above if the Administrative
Agent has not received written notice thereof, together with such
supporting documentation as the Administrative Agent may request,
from the applicable Cash Management Bank or Hedge Bank, as the case
may be. Each Cash Management Bank or Hedge Bank not a party to this
Agreement that has given the notice contemplated by the preceding
sentence shall, by such notice, be deemed to have acknowledged and
accepted the appointment of the Administrative Agent pursuant to
the terms of Article
X for itself and its Affiliates as if a “Lender”
party hereto.
-79-
SECTION
9.5 Administrative Agent May File Proofs
of Claim. In case of the pendency of any proceeding under
any Debtor Relief Law or any other judicial proceeding relative to
any Credit Party, the Administrative Agent (irrespective of whether
the principal of any Loan or L/C Obligation shall then be due and
payable as herein expressed or by declaration or otherwise and
irrespective of whether the Administrative Agent shall have made
any demand on the Borrowers) shall be entitled and empowered (but
not obligated) by intervention in such proceeding or
otherwise:
(a) to file and prove a
claim for the whole amount of the principal and interest owing and
unpaid in respect of the Loans, L/C Obligations and all other
Obligations that are owing and unpaid and to file such other
documents as may be necessary or advisable in order to have the
claims of the Lenders, the Issuing Lender and the Administrative
Agent (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Lenders, the Issuing
Lender and the Administrative Agent and their respective agents and
counsel and all other amounts due the Lenders, the Issuing Lender
and the Administrative Agent under Sections 3.3, 4.3 and 11.3) allowed in such judicial
proceeding; and
(b) to collect and
receive any monies or other property payable or deliverable on any
such claims and to distribute the same;
and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby
authorized by each Lender and the Issuing Lender to make such
payments to the Administrative Agent and, in the event that the
Administrative Agent shall consent to the making of such payments
directly to the Lenders and the Issuing Lender, to pay to the
Administrative Agent any amount due for the reasonable
compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other
amounts due the Administrative Agent under Sections 3.3, 4.3 and 11.3.
SECTION
9.6 Credit Bidding.
(a) The Administrative
Agent, on behalf of itself and the Secured Parties, shall have the
right, exercisable at the discretion of the Required Lenders, to
credit bid and purchase for the benefit of the Administrative Agent
and the Secured Parties all or any portion of Collateral at any
sale thereof conducted by the Administrative Agent under the
provisions of the UCC, including pursuant to Sections 9-610 or
9-620 of the UCC, at any sale thereof conducted under the
provisions of the United States Bankruptcy Code, including
Section 363 thereof, or a sale under a plan of reorganization,
or at any other sale or foreclosure conducted by the Administrative
Agent (whether by judicial action or otherwise) in accordance with
Applicable Law.
(b) Each Lender hereby
agrees, on behalf of itself and each of its Affiliates that is a
Secured Party, that, except as otherwise provided in any Loan
Document or with the written consent of the Administrative Agent
and the Required Lenders, it will not take any enforcement action,
accelerate obligations under any of the Loan Documents, or exercise
any right that it might otherwise have under Applicable Law to
credit bid at foreclosure sales, UCC sales or other similar
dispositions of Collateral.
ARTICLE
X
THE
ADMINISTRATIVE AGENT
SECTION
10.1 Appointment and
Authority.
(a) Each of the Lenders
and the Issuing Lender hereby irrevocably appoints ▇▇▇▇▇ Fargo to
act on its behalf as the Administrative Agent hereunder and under
the other Loan Documents and authorizes the Administrative Agent to
take such actions on its behalf and to exercise such powers as are
delegated to the Administrative Agent by the terms hereof or
thereof, together with such actions and powers as are reasonably
incidental thereto. Except as provided in Sections 10.6 and 10.9,
the provisions of this Article are solely for the benefit of the
Administrative Agent, the Lenders and the Issuing Lender, and
neither the Parent Borrower nor any Subsidiary thereof shall have
rights as a third-party beneficiary of any of such provisions. It
is understood and agreed that the use of the term
“agent” herein or in any other Loan Documents (or any
other similar term) with reference to the Administrative Agent is
not intended to connote any fiduciary or other implied (or express)
obligations arising under agency doctrine of any Applicable Law.
Instead such term is used as a matter of market custom, and is
intended to create or reflect only an administrative relationship
between contracting parties.
-80-
(b) The Administrative
Agent shall also act as the “collateral agent” under
the Loan Documents, and each of the Lenders (including in its
capacity as a potential Hedge Bank or Cash Management Bank) and the
Issuing Lender hereby irrevocably appoints and authorizes the
Administrative Agent to act as the agent of such Lender and the
Issuing Lender for purposes of acquiring, holding and enforcing any
and all Liens on Collateral granted by any of the Credit Parties to
secure any of the Secured Obligations, together with such powers
and discretion as are reasonably incidental thereto (including,
without limitation, to enter into additional Loan Documents or
supplements to existing Loan Documents on behalf of the Secured
Parties). In this connection, the Administrative Agent, as
“collateral agent” and any co-agents, sub-agents and
attorneys-in-fact appointed by the Administrative Agent pursuant to
this Article X for
purposes of holding or enforcing any Lien on the Collateral (or any
portion thereof) granted under the Security Documents, or for
exercising any rights and remedies thereunder at the direction of
the Administrative Agent, shall be entitled to the benefits of all
provisions of Articles
X and XI
(including Section 11.3, as though
such co-agents, sub-agents and attorneys-in-fact were the
“collateral agent” under the Loan Documents) as if set
forth in full herein with respect thereto.
SECTION
10.2 Rights as a Lender. The Person
serving as the Administrative Agent hereunder shall have the same
rights and powers in its capacity as a Lender as any other Lender
and may exercise the same as though it were not the Administrative
Agent and the term “Lender” or “Lenders”
shall, unless otherwise expressly indicated or unless the context
otherwise requires, include the Person serving as the
Administrative Agent hereunder in its individual capacity. Such
Person and its Affiliates may accept deposits from, lend money to,
own securities of, act as the financial advisor or in any other
advisory capacity for and generally engage in any kind of business
with either Borrower or any Subsidiary or other Affiliate thereof
as if such Person were not the Administrative Agent hereunder and
without any duty to account therefor to the Lenders.
SECTION
10.3 Exculpatory
Provisions.
(a) The Administrative
Agent shall not have any duties or obligations except those
expressly set forth herein and in the other Loan Documents, and its
duties hereunder and thereunder shall be administrative in nature.
Without limiting the generality of the foregoing, the
Administrative Agent:
(i) shall not be
subject to any fiduciary or other implied duties, regardless of
whether a Default or Event of Default has occurred and is
continuing;
(ii) shall
not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers
expressly contemplated hereby or by the other Loan Documents that
the Administrative Agent is required to exercise as directed in
writing by the Required Lenders (or such other number or percentage
of the Lenders as shall be expressly provided for herein or in the
other Loan Documents), provided that the
Administrative Agent shall not be required to take any action that,
in its opinion or the opinion of its counsel, may expose the
Administrative Agent to liability or that is contrary to any Loan
Document or Applicable Law, including for the avoidance of doubt
any action that may be in violation of the automatic stay under any
Debtor Relief Law or that may effect a forfeiture, modification or
termination of property of a Defaulting Lender in violation of any
Debtor Relief Law; and
(iii) shall
not, except as expressly set forth herein and in the other Loan
Documents, have any duty to disclose, and shall not be liable for
the failure to disclose, any information relating to the Parent
Borrower or any of its respective Subsidiaries or Affiliates that
is communicated to or obtained by the Person serving as the
Administrative Agent or any of its Affiliates in any
capacity.
(b) The Administrative
Agent shall not be liable for any action taken or not taken by it
(i) with the consent or at the request of the Required Lenders
(or such other number or percentage of the Lenders as shall be
necessary, or as the Administrative Agent shall believe in good
faith shall be necessary, under the circumstances as provided in
Section 11.2
and Section 9.2) or
(ii) in the absence of its own gross negligence or willful
misconduct as determined by a court of competent jurisdiction by
final nonappealable judgment. The Administrative Agent shall be
deemed not to have knowledge of any Default or Event of Default
unless and until notice describing such Default or Event of Default
is given to the Administrative Agent by the Borrower Agent, a
Lender or the Issuing Lender.
-81-
(c) The Administrative
Agent shall not be responsible for or have any duty to ascertain or
inquire into (i) any statement, warranty or representation
made in or in connection with this Agreement or any other Loan
Document, (ii) the contents of any certificate, report or
other document delivered hereunder or thereunder or in connection
herewith or therewith, (iii) the performance or observance of
any of the covenants, agreements or other terms or conditions set
forth herein or therein or the occurrence of any Default or Event
of Default, (iv) the validity, enforceability, effectiveness
or genuineness of this Agreement, any other Loan Document or any
other agreement, instrument or document or (v) the
satisfaction of any condition set forth in Article V or elsewhere herein,
other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent.
SECTION
10.4 Reliance by the Administrative
Agent. The Administrative Agent shall be entitled to rely
upon, and shall not incur any liability for relying upon, any
notice, request, certificate, consent, statement, instrument,
document or other writing (including any electronic message,
Internet or intranet website posting or other distribution)
believed by it to be genuine and to have been signed, sent or
otherwise authenticated by the proper Person. The Administrative
Agent also may rely upon any statement made to it orally or by
telephone and believed by it to have been made by the proper
Person, and shall not incur any liability for relying thereon. In
determining compliance with any condition hereunder to the making
of a Loan, or the issuance, extension, renewal or increase of a
Letter of Credit, that by its terms must be fulfilled to the
satisfaction of a Lender or the Issuing Lender, the Administrative
Agent may presume that such condition is satisfactory to such
Lender or the Issuing Lender unless the Administrative Agent shall
have received notice to the contrary from such Lender or the
Issuing Lender prior to the making of such Loan or the issuance of
such Letter of Credit. The Administrative Agent may consult with
legal counsel (who may be counsel for the Borrowers), independent
accountants and other experts selected by it, and shall not be
liable for any action taken or not taken by it in accordance with
the advice of any such counsel, accountants or
experts.
SECTION
10.5 Delegation of Duties. The
Administrative Agent may perform any and all of its duties and
exercise its rights and powers hereunder or under any other Loan
Document by or through any one or more sub-agents appointed by the
Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all of its duties and exercise its
rights and powers by or through their respective Related Parties.
The exculpatory provisions of this Article shall apply to any such
sub-agent and to the Related Parties of the Administrative Agent
and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the Credit
Facility as well as activities as Administrative Agent. The
Administrative Agent shall not be responsible for the negligence or
misconduct of any sub-agents except to the extent that a court of
competent jurisdiction determines in a final and non-appealable
judgment that the Administrative Agent acted with gross negligence
or willful misconduct in the selection of such
sub-agents.
SECTION
10.6 Resignation of Administrative
Agent.
(a) The Administrative
Agent may at any time give notice of its resignation to the
Lenders, the Issuing ▇▇▇▇▇▇ and the Borrower Agent. Upon receipt of
any such notice of resignation, the Required Lenders shall have the
right, subject to the consent of the Parent Borrower (provided no
Event of Default has occurred and is continuing at the time of such
resignation), to appoint a successor, which shall be a bank with an
office in the United States, or an Affiliate of any such bank with
an office in the United States. If no such successor shall have
been so appointed by the Required Lenders and shall have accepted
such appointment within 30 days after the retiring Administrative
Agent gives notice of its resignation (or such earlier day as shall
be agreed by the Required Lenders) (the “Resignation Effective
Date”), then the retiring Administrative Agent may
(but shall not be obligated to), on behalf of the Lenders and the
Issuing Lender, appoint a successor Administrative Agent meeting
the qualifications set forth above. Whether or not a successor has
been appointed, such resignation shall become effective in
accordance with such notice on the Resignation Effective
Date.
(b) If the Person
serving as Administrative Agent is a Defaulting Lender pursuant to
clause (d) of the definition thereof, the Required Lenders may, to
the extent permitted by Applicable Law, by notice in writing to the
Borrower Agent and such Person, remove such Person as
Administrative Agent and, in consultation with the Borrowers,
appoint a successor. If no such successor shall have been so
appointed by the Required Lenders and shall have accepted such
appointment within 30 days (or such earlier day as shall be agreed
by the Required Lenders) (the “Removal Effective Date”),
then such removal shall nonetheless become effective in accordance
with such notice on the Removal Effective Date.
-82-
(c) With effect from
the Resignation Effective Date or the Removal Effective Date (as
applicable), (1) the retiring or removed Administrative Agent
shall be discharged from its duties and obligations hereunder and
under the other Loan Documents (except that in the case of any
collateral security held by the Administrative Agent on behalf of
the Lenders or the Issuing Lender under any of the Loan Documents,
the retiring or removed Administrative Agent shall continue to hold
such collateral security until such time as a successor
Administrative Agent is appointed) and (2) except for any
indemnity payments owed to the retiring or removed Administrative
Agent, all payments, communications and determinations provided to
be made by, to or through the Administrative Agent shall instead be
made by or to each Lender and the Issuing Lender directly, until
such time, if any, as the Required Lenders appoint a successor
Administrative Agent as provided for above. Upon the acceptance of
a successor’s appointment as Administrative Agent hereunder,
such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring or removed
Administrative Agent (other than any rights to indemnity payments
owed to the retiring or removed Administrative Agent), and the
retiring or removed Administrative Agent shall be discharged from
all of its duties and obligations hereunder or under the other Loan
Documents. The fees payable by the Borrowers to a successor
Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Borrowers and such
successor. After the retiring or removed Administrative
Agent’s resignation or removal hereunder and under the other
Loan Documents, the provisions of this Article and Section 11.3 shall
continue in effect for the benefit of such retiring or removed
Administrative Agent, its sub-agents and their respective Related
Parties in respect of any actions taken or omitted to be taken by
any of them while the retiring or removed Administrative Agent was
acting as Administrative Agent.
(d) Any resignation by,
or removal of, Wells Fargo as Administrative Agent pursuant to this
Section shall also constitute its resignation as the Issuing Lender
and Swingline Lender. Upon the acceptance of a successor’s
appointment as Administrative Agent hereunder, (a) such
successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring ▇▇▇▇▇▇▇
▇▇▇▇▇▇, if in its sole discretion it elects to, and Swingline
Lender, (b) the retiring Issuing Lender and Swingline Lender
shall be discharged from all of their respective duties and
obligations hereunder or under the other Loan Documents, and
(c) the successor ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, if in its sole discretion it
elects to, shall issue letters of credit in substitution for the
Letters of Credit, if any, outstanding at the time of such
succession or make other arrangement satisfactory to the retiring
Issuing Lender to effectively assume the obligations of the
retiring Issuing Lender with respect to such Letters of
Credit.
SECTION
10.7 Non-Reliance on Administrative Agent
and Other Lenders. Each Lender and the Issuing Lender
acknowledges that it has, independently and without reliance upon
the Administrative Agent or any other Lender or any of their
Related Parties and based on such documents and information as it
has deemed appropriate, made its own credit analysis and decision
to enter into this Agreement. Each Lender and the Issuing Lender
also acknowledges that it will, independently and without reliance
upon the Administrative Agent or any other Lender or any of their
Related Parties and based on such documents and information as it
shall from time to time deem appropriate, continue to make its own
decisions in taking or not taking action under or based upon this
Agreement, any other Loan Document or any related agreement or any
document furnished hereunder or thereunder.
SECTION
10.8 No Other Duties, etc. Anything
herein to the contrary notwithstanding, none of the syndication
agents, documentation agents, co-agents, arrangers or bookrunners
listed on the cover page hereof shall have any powers, duties or
responsibilities under this Agreement or any of the other Loan
Documents, except in its capacity, as applicable, as the
Administrative Agent, a Lender or the Issuing Lender
hereunder.
SECTION
10.9 Collateral and Guaranty
Matters.
(a) Each of the Lenders
(including in its or any of its Affiliate’s capacities as a
potential Hedge Bank or Cash Management Bank) irrevocably authorize
the Administrative Agent, at its option and in its
discretion:
-83-
(i) to release any Lien
on any Collateral granted to or held by the Administrative Agent,
for the ratable benefit of the Secured Parties, under any Loan
Document (A) upon the termination of the Revolving Credit
Commitment and payment in full of all Secured Obligations (other
than (1) contingent indemnification obligations and (2) obligations
and liabilities under Secured Cash Management Agreements or Secured
Hedge Agreements as to which arrangements satisfactory to the
applicable Cash Management Bank or Hedge Bank shall have been made)
and the expiration or termination of all Letters of Credit (other
than Letters of Credit as to which other arrangements satisfactory
to the Administrative Agent and the Issuing Lender shall have been
made), (B) that is sold or otherwise disposed of or to be sold
or otherwise disposed of as part of or in connection with any sale
or other disposition permitted under the Loan Documents, or
(C) if approved, authorized or ratified in writing in
accordance with Section 11.2;
(ii) to
subordinate any Lien on any Collateral granted to or held by the
Administrative Agent under any Loan Document to the holder of any
Lien permitted under Section 8.2(h);
and
(iii) to
release any Guarantor from its obligations under any Loan Documents
if such Person ceases to be a Subsidiary as a result of a
transaction permitted under the Loan Documents.
Upon
request by the Administrative Agent at any time, the Required
Lenders will confirm in writing the Administrative Agent’s
authority to release or subordinate its interest in particular
types or items of property, or to release any Guarantor from its
obligations under a Guaranty Agreement pursuant to this
Section 10.9.
In each case as specified in this Section 10.9, the
Administrative Agent will, at the Borrowers’ expense, execute
and deliver to the applicable Credit Party such documents as such
Credit Party may reasonably request to evidence the release of such
item of Collateral from the assignment and security interest
granted under the Security Documents or to subordinate its interest
in such item, or to release such Guarantor from its obligations
under any Guaranty Agreement, in each case in accordance with the
terms of the Loan Documents and this Section 10.9. In the case
of any such sale, transfer or disposal of any property constituting
Collateral in a transaction constituting an Asset Disposition
permitted pursuant to Section 8.5, the Liens
created by any of the Security Documents on such property shall be
automatically released without need for further action by any
person.
Notwithstanding
the foregoing, the parties hereto acknowledge and agree (a) in
circumstances where the Administrative Agent reasonably determines
that the cost or effort of obtaining or perfecting a security
interest in any asset that constitutes Collateral is excessive in
relation to the benefit afforded to the Secured Parties thereby,
the Administrative Agent may exclude such Collateral from the
creation and/or perfection requirements set forth in this Agreement
and the other Loan Documents and (b) the Administrative Agent may
grant extensions of time for the creation and/or perfection of
Liens in a particular property where it determines that such
creation and/or perfection cannot be accomplished without undue
effort and/or expense by the time or times at which it would
otherwise be required by this Agreement or any other Loan
Document.
(b) The Administrative
Agent shall not be responsible for or have a duty to ascertain or
inquire into any representation or warranty regarding the
existence, value or collectability of the Collateral, the
existence, priority or perfection of the Administrative
Agent’s Lien thereon, or any certificate prepared by any
Credit Party in connection therewith, nor shall the Administrative
Agent be responsible or liable to the Lenders for any failure to
monitor or maintain any portion of the Collateral.
SECTION
10.10 Secured Hedge Agreements and Secured
Cash Management Agreements. No Cash Management Bank or Hedge
Bank that obtains the benefits of Section 9.4 or any
Collateral by virtue of the provisions hereof or of any Security
Document shall have any right to notice of any action or to consent
to, direct or object to any action hereunder or under any other
Loan Document or otherwise in respect of the Collateral (including
the release or impairment of any Collateral) other than in its
capacity as a Lender and, in such case, only to the extent
expressly provided in the Loan Documents. Notwithstanding any other
provision of this Article
X to the contrary, the Administrative Agent shall not be
required to verify the payment of, or that other satisfactory
arrangements have been made with respect to, Secured Cash
Management Agreements and Secured Hedge Agreements unless the
Administrative Agent has received written notice of such Secured
Cash Management Agreements and Secured Hedge Agreements, together
with such supporting documentation as the Administrative Agent may
request, from the applicable Cash Management Bank or Hedge Bank, as
the case may be.
-84-
ARTICLE
XI
MISCELLANEOUS
SECTION
11.1 Notices.
(a) Notices Generally. Except in
the case of notices and other communications expressly permitted to
be given by telephone (and except as provided in paragraph (b)
below), all notices and other communications provided for herein
shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by
(i) with respect to either ▇▇▇▇▇▇▇▇, e-mail, or (ii) with respect
to the Administrative Agent, facsimile, as follows:
If to
either Borrower:
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention of: ▇▇▇▇▇
▇▇▇▇▇▇▇, Chief Accounting Officer and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Executive
Vice President
Telephone No.:
(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.:
(▇▇▇) ▇▇▇-▇▇▇▇
E-mail:
▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇; ▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇
With
copies to:
DLA
Piper LLP
▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention of:
▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.:
(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.:
(▇▇▇) ▇▇▇-▇▇▇▇
E-mail:
▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
If to
▇▇▇▇▇ Fargo as Administrative Agent, Swingline Lender or Issuing
Lender:
▇▇▇▇▇
Fargo Bank, National Association
MAC
D1109-019
1525
West ▇.▇. ▇▇▇▇▇▇ Blvd.
Charlotte, NC
28262
Attention of:
Syndication Agency Services
Telephone No.:
(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.:
(▇▇▇) ▇▇▇-▇▇▇▇
With
copies to:
▇▇▇▇▇
Fargo Bank, National Association
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ Floor
San
Jose, California 95113
Attention of:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone No.:
(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.:
(▇▇▇) ▇▇▇-▇▇▇▇
E-mail:
▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
If to
any Lender:
To the
address set forth on the Register
-85-
Notices
sent by hand or overnight courier service, or mailed by certified
or registered mail, shall be deemed to have been given when
received; notices sent by facsimile shall be deemed to have been
given when sent (except that, if not given during normal business
hours for the recipient, shall be deemed to have been given at the
opening of business on the next business day for the recipient).
Notices delivered through electronic communications to the extent
provided in paragraph (b) below, shall
be effective as provided in said paragraph (b).
(b) Electronic Communications.
Notices and other communications to the Lenders and the Issuing
Lender hereunder may be delivered or furnished by electronic
communication (including e-mail and Internet or intranet websites)
pursuant to procedures approved by the Administrative Agent,
provided that the
foregoing shall not apply to notices to any Lender or the Issuing
Lender pursuant to Article
II or Article
III if such Lender or the Issuing Lender, as applicable, has
notified the Administrative Agent that is incapable of receiving
notices under such Article by electronic communication. The
Administrative Agent or the Borrower Agent may, in its discretion,
agree to accept notices and other communications to it hereunder by
electronic communications pursuant to procedures approved by it,
provided that
approval of such procedures may be limited to particular notices or
communications. Unless the Administrative Agent otherwise
prescribes, (i) notices and other communications sent to an
e-mail address shall be deemed received upon the sender’s
receipt of an acknowledgement from the intended recipient (such as
by the “return receipt requested” function, as
available, return e-mail or other written acknowledgement), and
(ii) notices or communications posted to an Internet or
intranet website shall be deemed received upon the deemed receipt
by the intended recipient at its e-mail address as described in the
foregoing clause
(i) of notification that such notice or communication is
available and identifying the website address therefor;
provided that, for
both clauses (i)
and (ii) above, if
such notice, email or other communication is not sent during the
normal business hours of the recipient, such notice, email or other
communication shall be deemed to have been sent at the opening of
business on the next business day for the recipient.
(c) Administrative Agent’s
Office. The Administrative Agent hereby designates its
office located at the address set forth above, or any subsequent
office which shall have been specified for such purpose by written
notice to the Borrower Agent and Lenders, as the Administrative
Agent’s Office referred to herein, to which payments due are
to be made and at which Loans will be disbursed and Letters of
Credit requested.
(d) Change of Address, Etc. Any
party hereto may change its address or facsimile number for notices
and other communications hereunder by notice to the other parties
hereto.
(e) Platform.
(i) Each Credit Party
agrees that the Administrative Agent may, but shall not be
obligated to, make the Borrower Materials available to the Issuing
Lender and the other Lenders by posting the Borrower Materials on
the Platform.
(ii) The
Platform is provided “as is” and “as
available.” The Agent Parties (as defined below) do not
warrant the accuracy or completeness of the Borrower Materials or
the adequacy of the Platform, and expressly disclaim liability for
errors or omissions in the Borrower Materials. No warranty of any
kind, express, implied or statutory, including, without limitation,
any warranty of merchantability, fitness for a particular purpose,
non-infringement of third-party rights or freedom from viruses or
other code defects, is made by any Agent Party in connection with
the Borrower Materials or the Platform. In no event shall the
Administrative Agent or any of its Related Parties (collectively,
the “Agent
Parties”) have any liability to any Credit Party, any
Lender or any other Person or entity for losses, claims, damages,
liabilities or expenses of any kind (whether in tort, contract or
otherwise) arising out of any Credit Party’s or the
Administrative Agent’s transmission of communications through
the Internet (including, without limitation, the Platform), except
to the extent that such losses, claims, damages, liabilities or
expenses are determined by a court of competent jurisdiction by
final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Agent Party; provided that in no event shall
any Agent Party have any liability to any Credit Party, any Lender,
the Issuing Lender or any other Person for indirect, special,
incidental, consequential or punitive damages, losses or expenses
(as opposed to actual damages, losses or expenses).
-86-
(f) Private
Side Designation. Each Public Lender agrees to cause at
least one individual at or on behalf of such Public Lender to at
all times have selected the “Private Side Information”
or similar designation on the content declaration screen of the
Platform in order to enable such Public Lender or its delegate, in
accordance with such Public Lender’s compliance procedures
and Applicable Law, including United States Federal and state
securities Applicable Laws, to make reference to Borrower Materials
that are not made available through the “Public Side
Information” portion of the Platform and that may contain
material non-public information with respect to the Borrowers or
their securities for purposes of United States Federal or state
securities Applicable Laws.
SECTION
11.2 Amendments, Waivers and
Consents. Except as set forth below or as specifically
provided in any Loan Document, any term, covenant, agreement or
condition of this Agreement or any of the other Loan Documents may
be amended or waived by the Lenders, and any consent given by the
Lenders, if, but only if, such amendment, waiver or consent is in
writing signed by the Required Lenders (or by the Administrative
Agent with the consent of the Required Lenders) and delivered to
the Administrative Agent and, in the case of an amendment, signed
by the Borrowers; provided, that no amendment,
waiver or consent shall:
(a) increase the
Revolving Credit Commitment of
any Lender (or reinstate any Revolving
Credit Commitment terminated pursuant to Section 9.2) or the amount
of Loans of any Lender, in any case, without the written consent of
such Lender;
(b) waive, extend or
postpone any date fixed by this Agreement or any other Loan
Document for any payment of principal, interest, fees or other
amounts due to the Lenders (or any of them) hereunder or under any
other Loan Document without the written consent of each Lender
directly and adversely affected thereby (it being understood that a
waiver of a mandatory prepayment under Section 2.11(b) shall only
require the consent of the Required Lenders);
(c) reduce the
principal of, or the rate of interest specified herein on, any Loan
or Reimbursement Obligation, or (subject to clauses (iv) and
(v) of the proviso set forth in the paragraph below) any fees or
other amounts payable hereunder or under any other Loan
Document without the
written consent of each Lender directly and adversely affected
thereby; provided
that only the consent of the Required Lenders shall be necessary
(i) to waive any obligation of the Borrowers to pay interest
at the rate set forth in Section 4.1(b) during the
continuance of an Event of Default or (ii) to amend any
financial covenant hereunder (or any defined term used therein)
even if the effect of such amendment would be to reduce the rate of
interest on any Loan or L/C Obligation or to reduce any fee payable
hereunder;
(d) change Section 4.6 or
Section 9.4 in
a manner that would alter the pro rata sharing of payments or
order of application required thereby without the written consent
of each Lender directly and adversely affected
thereby;
(e) except as otherwise
permitted by this Section 11.2 change any
provision of this Section or reduce the percentages specified in
the definitions of “Required Lenders”, “Required
Revolving Credit Lenders” or any other provision hereof
specifying the number or percentage of Lenders required to amend,
waive or otherwise modify any rights hereunder or make any
determination or grant any consent hereunder, without the written
consent of each Lender directly affected thereby;
(f) consent to the
assignment or transfer by any Credit Party of such Credit
Party’s rights and obligations under any Loan Document to
which it is a party (except as permitted pursuant to Section 8.4), in each
case, without the written consent of each Lender;
(g) release any
Guarantor from its Guaranty Agreement (other than as authorized in
Section 10.9),
without the written consent of each Lender;
(h) release all or
substantially all of the Collateral or release any Security
Document (other than as authorized in Section 10.9 or as
otherwise specifically permitted or contemplated in this Agreement
or the applicable Security Document) without the written consent of
each Lender;
-87-
(i) change Section 2.11(b)(v) in a manner
that would alter the order of application of amounts prepaid
pursuant thereto without the written consent of each Lender
directly and adversely affected thereby; or
(j) without the prior
written consent of the Required Revolving Credit Lenders, amend,
modify or waive Section
5.2 if the effect of such amendment, modification or waiver
is to require the Revolving Credit Lenders to make Revolving Credit
Loans when such Revolving Credit Lenders would not otherwise be
required to do so;
provided further, that (i) no
amendment, waiver or consent shall, unless in writing and signed by
the Issuing Lender in addition to the Lenders required above,
affect the rights or duties of the Issuing Lender under this
Agreement or any Letter of Credit Application relating to any
Letter of Credit issued or to be issued by it; (ii) no
amendment, waiver or consent shall, unless in writing and signed by
the Swingline Lender in addition to the Lenders required above,
affect the rights or duties of the Swingline Lender under this
Agreement; (iii) no amendment, waiver or consent shall, unless
in writing and signed by the Administrative Agent in addition to
the Lenders required above, affect the rights or duties of the
Administrative Agent under this Agreement or any other Loan
Document or modify Section
11.27, (iv) the Administrative Agent and the Borrowers shall
be permitted to amend any provision of the Loan Documents (and such
amendment shall become effective without any further action or
consent of any other party to any Loan Document) if the
Administrative Agent and the Borrowers shall have jointly
identified an obvious error or any error, ambiguity, defect,
inconsistency or omission of a technical or immaterial nature in
any such provision and (v) the Administrative Agent may, without
the consent of any Lender, enter into amendments or modifications
to this Agreement or any of the other Loan Documents or to enter
into additional Loan Documents as the Administrative Agent
reasonably deems appropriate in order to implement any Replacement
Rate or otherwise effectuate the terms of Section 4.8(c) in accordance
with the terms of Section
4.8(c). Notwithstanding anything to the contrary herein, no
Defaulting Lender shall have any right to approve or disapprove any
amendment, waiver or consent hereunder, except that the Revolving
Credit Commitment of such Lender may not be increased or extended
without the consent of such Lender.
Notwithstanding
anything in this Agreement to the contrary, each Lender hereby
irrevocably authorizes the Administrative Agent on its behalf, and
without further consent of any Lender (but with the consent of the
Parent Borrower and the Administrative Agent), to (x) amend and
restate this Agreement if, upon giving effect to such amendment and
restatement, such Lender shall no longer be a party to this
Agreement (as so amended and restated), the Revolving Credit
Commitments of such Lender shall have terminated, such Lender shall
have no other commitment or obligation hereunder and shall have
been paid in full all principal, interest and other amounts owing
to it or accrued for its account under this Agreement and (y) enter
into amendments or modifications to this Agreement (including,
without limitation, amendments to this Section 11.2) or any of
the other Loan Documents or to enter into additional Loan Documents
as the Administrative Agent reasonably deems appropriate in order
to effectuate the terms of Section 2.7 (including,
without limitation, as applicable, (1) to permit the
Incremental Term Loans and the Revolving Credit Facility Increase
to share ratably in the benefits of this Agreement and the other
Loan Documents and (2) to include the Incremental Term Loans
and the outstanding Revolving Credit Facility Increase, as
applicable, or outstanding Incremental Term Loans and outstanding
Revolving Credit Facility Increase, as applicable, in any
determination of (i) Required Lenders or Required Revolving
Credit Lenders or (ii) similar required lender terms
applicable thereto); provided that no amendment or
modification shall result in any increase in the amount of any
Lender’s Revolving Credit
Commitment or the amount of such Lender’s Loans or any
increase in any Lender’s Revolving Credit Commitment Percentage, in
each case, without the written consent of such affected
Lender.
-88-
SECTION
11.3 Expenses;
Indemnity.
(a) Costs and Expenses. Each
Borrower and each other Credit Party, jointly and severally
(subject to the limitations of Section 11.22), shall pay
(i) all reasonable out of pocket expenses incurred by the
Administrative Agent, the Arrangers and their respective Affiliates
(including the reasonable fees, charges and disbursements of
counsel, which shall be limited to the reasonable fees and expenses
of McGuireWoods LLP and one local counsel in each applicable
foreign jurisdiction) in connection with the syndication of the
Credit Facility, the preparation, negotiation, execution, delivery
and administration of this Agreement and the other Loan Documents
or any amendments, modifications or waivers of the provisions
hereof or thereof (whether or not the transactions contemplated
hereby or thereby shall be consummated), (ii) all reasonable
out of pocket expenses incurred by the Issuing Lender in connection
with the issuance, amendment, renewal or extension of any Letter of
Credit or any demand for payment thereunder and (iii) all out
of pocket expenses incurred by the Administrative Agent, any Lender
or the Issuing Lender (including the fees, charges and
disbursements of any counsel for the Administrative Agent, any
Lender or the Issuing Lender), in connection with the enforcement
or protection of its rights (A) in connection with this
Agreement and the other Loan Documents, including its rights under
this Section, or (B) in connection with the Loans made or
Letters of Credit issued hereunder, including all such out of
pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans or Letters of
Credit.
(b) Indemnification by the
Borrowers. Each Borrower and each other Credit Party,
jointly and severally (subject to the limitations of Section 11.22), shall indemnify
the Administrative Agent (and any sub-agent thereof), each Lender
and the Issuing Lender, and each Related Party of any of the
foregoing Persons (each such Person being called an
“Indemnitee”) against, and
hold each Indemnitee harmless from, and shall pay or reimburse any
such Indemnitee for, any and all losses, claims (including, without
limitation, any Environmental Claims), penalties, damages,
liabilities and related expenses (including the reasonable fees,
charges and disbursements of any counsel for any Indemnitee),
incurred by any Indemnitee or asserted against any Indemnitee by
any Person (including either Borrower or any other Credit Party),
other than such Indemnitee and its Related Parties, arising out of,
in connection with, or as a result of (i) the execution or
delivery of this Agreement, any other Loan Document or any
agreement or instrument contemplated hereby or thereby, the
performance by the parties hereto of their respective obligations
hereunder or thereunder or the consummation of the transactions
contemplated hereby or thereby (including, without limitation, the
Transactions), (ii) any Loan or Letter of Credit or the use or
proposed use of the proceeds therefrom (including any refusal by
the Issuing Lender to honor a demand for payment under a Letter of
Credit if the documents presented in connection with such demand do
not strictly comply with the terms of such Letter of Credit),
(iii) any actual or alleged presence or release of Hazardous
Materials on or from any property owned or operated by any Credit
Party or any Subsidiary thereof, or any Environmental Claim related
in any way to any Credit Party or any Subsidiary, (iv) any
actual or prospective claim, litigation, investigation or
proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory, whether brought by a third
party or by any Credit Party or any Subsidiary thereof, and
regardless of whether any Indemnitee is a party thereto, or
(v) any claim (including, without limitation, any
Environmental Claims), investigation, litigation or other
proceeding (whether or not the Administrative Agent or any Lender
is a party thereto) and the prosecution and defense thereof,
arising out of or in any way connected with the Loans, this
Agreement, any other Loan Document, or any documents contemplated
by or referred to herein or therein or the transactions
contemplated hereby or thereby, including without limitation,
reasonable attorneys and consultant’s fees, provided that such indemnity
shall not, as to any Indemnitee, be available to the extent that
such losses, claims, damages, liabilities or related expenses are
determined by a court of competent jurisdiction by final and
nonappealable judgment to have resulted from (i) such
Indemnitee’s gross negligence or willful misconduct, (ii) the
material breach in bad faith by such Indemnitee of its express
obligations under the Loan Documents pursuant to a claim initiated
by the Borrowers or (iii) any dispute solely among Indemnitees (not
arising as a result of any act or omission by either Borrower or
any of its Subsidiaries or Affiliates) other than claims against
▇▇▇▇▇ Fargo in its capacity as Administrative Agent or the
Arrangers in their capacities as such under the Loan Documents.
This Section 11.3(b) shall not
apply with respect to Taxes other than any Indemnified Taxes that
represent losses, claims, damages, etc. arising from any non-Tax
claim.
-89-
(c) Reimbursement by ▇▇▇▇▇▇▇. To
the extent that the Borrower for any reason fails to indefeasibly
pay any amount required under clause (a) or (b) of this Section to be paid
by it to the Administrative Agent (or any sub-agent thereof), the
Issuing Lender, the Swingline Lender or any Related Party of any of
the foregoing, each Lender severally agrees to pay to the
Administrative Agent (or any such sub-agent), the Issuing Lender,
the Swingline Lender or such Related Party, as the case may be,
such Lender’s pro rata share (determined as of
the time that the applicable unreimbursed expense or indemnity
payment is sought based on each Lender’s share of the Total
Credit Exposure at such time, or if the Total Credit Exposure has
been reduced to zero, then based on such Lender’s share of
the Total Credit Exposure immediately prior to such reduction) of
such unpaid amount (including any such unpaid amount in respect of
a claim asserted by such Lender); provided that with respect to
such unpaid amounts owed to the Issuing Lender or the Swingline
Lender solely in its capacity as such, only the Revolving Credit
Lenders shall be required to pay such unpaid amounts, such payment
to be made severally among them based on such Revolving Credit
Lenders’ Revolving Credit Commitment Percentage (determined
as of the time that the applicable unreimbursed expense or
indemnity payment is sought or, if the Revolving Credit Commitment
has been reduced to zero as of such time, determined immediately
prior to such reduction); provided, further, that the unreimbursed
expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against
the Administrative Agent (or any such sub-agent), the Issuing
Lender or the Swingline Lender in its capacity as such, or against
any Related Party of any of the foregoing acting for the
Administrative Agent (or any such sub-agent), the Issuing Lender or
the Swingline Lender in connection with such capacity. The
obligations of the Lenders under this clause (c) are subject to the
provisions of Section 4.7.
(d) Waiver of Consequential Damages,
Etc. To the fullest extent permitted by Applicable Law, each
Borrower and each other Credit Party shall not assert, and hereby
waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages
(as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement, any other Loan
Document or any agreement or instrument contemplated hereby, the
transactions contemplated hereby or thereby, any Loan or Letter of
Credit or the use of the proceeds thereof. No Indemnitee referred
to in clause (b) above shall be liable for any damages arising
from the use by unintended recipients of any information or other
materials distributed by it through telecommunications, electronic
or other information transmission systems in connection with this
Agreement or the other Loan Documents or the transactions
contemplated hereby or thereby except to the extent that such
losses, claims, damages, liabilities or expenses are determined by
a court of competent jurisdiction by a final and non-appealable
judgment to have resulted from the gross negligence or willful
misconduct of such Indemnitee.
(e) Payments. All amounts due under
this Section shall be payable promptly after demand
therefor.
(f) Survival. Each party’s
obligations under this Section shall survive the termination of the
Loan Documents and payment of the obligations
hereunder.
SECTION
11.4 Right of Setoff. If an Event of
Default shall have occurred and be continuing, each Lender, the
Issuing Lender, the Swingline Lender and each of their respective
Affiliates is hereby authorized at any time and from time to time,
to the fullest extent permitted by Applicable Law, to setoff and
apply any and all deposits (general or special, time or demand,
provisional or final, in whatever currency) at any time held and
other obligations (in whatever currency) at any time owing by such
Lender, the Issuing Lender, the Swingline Lender or any such
Affiliate to or for the credit or the account of the Borrowers or
any other Credit Party against any and all of the obligations of
the Borrowers or such Credit Party now or hereafter existing under
this Agreement or any other Loan Document to such Lender, the
Issuing Lender or the Swingline Lender or any of their respective
Affiliates, irrespective of whether or not such Lender, the Issuing
Lender, the Swingline Lender or any such Affiliate shall have made
any demand under this Agreement or any other Loan Document and
although such obligations of the Borrowers or such Credit Party may
be contingent or unmatured or are owed to a branch or office of
such Lender, the Issuing Lender, the Swingline Lender or such
Affiliate different from the branch, office or Affiliate holding
such deposit or obligated on such indebtedness; provided that in the event that
any Defaulting Lender shall exercise any such right of setoff, (x)
all amounts so setoff shall be paid over immediately to the
Administrative Agent for further application in accordance with the
provisions of Section 9.4 and, pending
such payment, shall be segregated by such Defaulting Lender from
its other funds and deemed held in trust for the benefit of the
Administrative Agent, the Issuing Lender, the Swingline Lender and
the Lenders, and (y) the Defaulting Lender shall provide promptly
to the Administrative Agent a statement describing in reasonable
detail the Obligations owing to such Defaulting Lender as to which
it exercised such right of setoff. The rights of each Lender, the
Issuing Lender, the Swingline Lender
-90-
and
their respective Affiliates under this Section are in addition to
other rights and remedies (including other rights of setoff) that
such Lender, the Issuing Lender, the Swingline Lender or their
respective Affiliates may have. Each Lender, the Issuing Lender and
the Swingline Lender agree to notify the Borrower Agent and the
Administrative Agent promptly after any such setoff and
application; provided that the failure to
give such notice shall not affect the validity of such setoff and
application.
SECTION
11.5 Governing
Law; Jurisdiction, Etc.
(a) Governing
Law. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND ANY
CLAIM, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT
OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT (EXCEPT, AS TO ANY OTHER
LOAN DOCUMENT, AS EXPRESSLY SET FORTH THEREIN) AND THE TRANSACTIONS
CONTEMPLATED HEREBY AND THEREBY SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT
REGARD TO CONFLICT OF LAW PRINCIPLES THAT WOULD REQUIRE THE
APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION.
(b) Submission to Jurisdiction.
Each Borrower and each other Credit Party irrevocably and
unconditionally agrees that it will not commence any action,
litigation or proceeding of any kind or description, whether in law
or equity, whether in contract or in tort or otherwise, against the
Administrative Agent, any Lender, the Issuing Lender, the Swingline
Lender, or any Related Party of the foregoing in any way relating
to this Agreement or any other Loan Document or the transactions
relating hereto or thereto, in any forum other than the courts of
the State of New York sitting in New York County, and of the United
States District Court of the Southern District of New York, and any
appellate court from any thereof, and each of the parties hereto
irrevocably and unconditionally submits to the jurisdiction of such
courts and agrees that all claims in respect of any such action,
litigation or proceeding may be heard and determined in such New
York State court or, to the fullest extent permitted by Applicable
Law, in such federal court. Each of the parties hereto agrees
that a final judgment in any such action, litigation or proceeding
shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law.
Nothing in this Agreement or in any other Loan Document shall
affect any right that the Administrative Agent, any Lender, the
Issuing Lender or the Swingline Lender may otherwise have to bring
any action or proceeding relating to this Agreement or any other
Loan Document against either Borrower or any other Credit Party or
its properties in the courts of any jurisdiction.
(c) Waiver of Venue. Each Borrower
and each other Credit Party irrevocably and unconditionally waives,
to the fullest extent permitted by Applicable Law, any objection
that it may now or hereafter have to the laying of venue of any
action or proceeding arising out of or relating to this Agreement
or any other Loan Document in any court referred to in paragraph (b) of this
Section. Each of the parties hereto hereby irrevocably waives, to
the fullest extent permitted by Applicable Law, the defense of an
inconvenient forum to the maintenance of such action or proceeding
in any such court.
(d) Service of Process. Each party
hereto irrevocably consents to service of process in the manner
provided for notices in Section 11.1. Nothing in
this Agreement will affect the right of any party hereto to serve
process in any other manner permitted by Applicable
Law.
SECTION
11.6 Waiver of Jury Trial. EACH
PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (i)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER
PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (ii) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND
THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION.
-91-
SECTION
11.7 Reversal of Payments. To the
extent any Credit Party makes a payment or payments to the
Administrative Agent for the ratable benefit of any of the Secured
Parties or to any Secured Party directly or the Administrative
Agent or any Secured Party receives any payment or proceeds of the
Collateral or any Secured Party exercises its right of setoff,
which payments or proceeds (including any proceeds of such setoff)
or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside and/or required to be repaid
to a trustee, receiver or any other party under any Debtor Relief
Law, other Applicable Law or equitable cause, then, to the extent
of such payment or proceeds repaid, the Secured Obligations or part
thereof intended to be satisfied shall be revived and continued in
full force and effect as if such payment or proceeds had not been
received by the Administrative Agent, and each Lender and the
Issuing Lender severally agrees to pay to the Administrative Agent
upon demand its applicable ratable share (without duplication of
any amount so recovered from or repaid by the Administrative Agent)
plus interest thereon at a per annum rate equal to the Federal
Funds Rate from the date of such demand to the date such payment is
made to the Administrative Agent.
SECTION
11.8 Injunctive Relief. The
Borrowers recognize that, in the event either Borrower fails to
perform, observe or discharge any of its obligations or liabilities
under this Agreement, any remedy of law may prove to be inadequate
relief to the Lenders. Therefore, each Borrower agrees that the
Lenders, at the Lenders’ option, shall be entitled to
temporary and permanent injunctive relief in any such case without
the necessity of proving actual damages.
SECTION
11.9 Successors and Assigns;
Participations.
(a) Successors and Assigns
Generally. The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that
neither Borrower nor any other Credit Party may assign or otherwise
transfer any of its rights or obligations hereunder without the
prior written consent of the Administrative Agent and each Lender
and no Lender may assign or otherwise transfer any of its rights or
obligations hereunder except (i) to an assignee in accordance
with the provisions of paragraph (b) of this
Section, (ii) by way of participation in accordance with the
provisions of paragraph (d) of this
Section or (iii) by way of pledge or assignment of a security
interest subject to the restrictions of paragraph (e) of this
Section (and any other attempted assignment or transfer by any
party hereto shall be null and void). Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and
assigns permitted hereby, Participants to the extent provided in
paragraph (d)
of this Section and, to the extent expressly contemplated hereby,
the Related Parties of each of the Administrative Agent and the
Lenders) any legal or equitable right, remedy or claim under or by
reason of this Agreement.
(b) Assignments by ▇▇▇▇▇▇▇. Any
Lender may at any time assign to one or more assignees all or a
portion of its rights and obligations under this Agreement
(including all or a portion of its Revolving Credit Commitment and the Loans
at the time owing to it); provided that, in each case
with respect to any Credit Facility, any such assignment shall be
subject to the following conditions:
(i) Minimum Amounts.
(A) in the case of an
assignment of the entire remaining amount of the assigning
▇▇▇▇▇▇’s Revolving Credit
Commitment and/or the Loans at the time owing to it (in each case
with respect to any Credit Facility), no minimum amount need be
assigned; and
(B) in any case not
described in paragraph (b)(i)(A) of
this Section, the aggregate amount of the Loans and the
Revolving Credit Commitment or,
if the applicable Revolving
Credit Commitment is not then in effect, the principal
outstanding balance of the Loans of the assigning Lender subject to
each such assignment (determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to the
Administrative Agent or, if “Trade Date” is specified
in the Assignment and Assumption, as of the Trade Date) shall not
be less than $5,000,000 or, if less, then the remaining amount of
the assigning Lender’s Revolving
Credit Commitment and/or Loans, unless each of the
Administrative Agent and, so long as no Event of Default has
occurred and is continuing, the Borrowers otherwise consent (each
such consent not to be unreasonably withheld or delayed);
provided that the
Borrowers shall be deemed to have given its consent ten (10)
Business Days after the date written notice thereof has been
delivered by the assigning Lender (through the Administrative
Agent) unless such consent is expressly refused by the Borrower
Agent prior to such tenth (10th) Business Day;
-92-
(ii) Proportionate
Amounts. Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning
▇▇▇▇▇▇’s rights and obligations under this Agreement with
respect to the Loan or the Revolving
Credit Commitment assigned;
(iii) Required
Consents. No consent shall be required for any assignment
except to the extent required by paragraph (b)(i)(B) of
this Section and, in addition:
(A) the consent of the
Borrower Agent (such consent not to be unreasonably withheld or
delayed) shall be required unless (x) an Event of Default has
occurred and is continuing at the time of such assignment or
(y) such assignment is to a Lender or an Affiliate of a
Lender; provided,
that the Borrower Agent shall be deemed to have consented to any
such assignment unless it shall object thereto by written notice to
the Administrative Agent within ten (10) Business Days after having
received notice thereof;
(B) the consent of the
Administrative Agent (such consent not to be unreasonably withheld
or delayed) shall be required for assignments if such assignment is
to a Person that is not a Lender or an Affiliate of such Lender;
and
(C) the consents of the
Issuing Lender and the Swingline Lender shall be required for any
assignment in respect of the Revolving Credit
Facility.
(iv) Assignment
and Assumption. The parties to each assignment shall execute
and deliver to the Administrative Agent an Assignment and
Assumption, together with a processing and recordation fee of
$3,500 for each assignment; provided that the
Administrative Agent may, in its sole discretion, elect to waive
such processing and recordation fee in the case of any assignment.
The assignee, if it is not a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire.
(v) No Assignment to Certain
Persons. No such assignment shall be made to (A) either
Borrower or any of their respective Subsidiaries or Affiliates or
(B) any Defaulting Lender or any of its Subsidiaries, or any Person
who, upon becoming a Lender hereunder, would constitute any of the
foregoing Persons described in this clause (B).
(vi) No
Assignment to Natural Persons. No such assignment shall be
made to a natural Person (or a holding company, investment vehicle
or trust for, or owned and operated for the primary benefit of, a
natural Person).
(vii) Certain
Additional Payments. In connection with any assignment of
rights and obligations of any Defaulting Lender hereunder, no such
assignment shall be effective unless and until, in addition to the
other conditions thereto set forth herein, the parties to the
assignment shall make such additional payments to the
Administrative Agent in an aggregate amount sufficient, upon
distribution thereof as appropriate (which may be outright payment,
purchases by the assignee of participations or sub-participations,
or other compensating actions, including funding, with the consent
of the Borrower Agent and the Administrative Agent, the applicable
pro rata share of Loans previously
requested, but not funded by, the Defaulting Lender, to each of
which the applicable assignee and assignor hereby irrevocably
consent), to (A) pay and satisfy in full all payment liabilities
then owed by such Defaulting Lender to the Administrative Agent,
the Issuing Lender, the Swingline Lender and each other Lender
hereunder (and interest accrued thereon), and (B) acquire (and fund
as appropriate) its full pro rata share of all Loans and
participations in Letters of Credit and Swingline Loans in
accordance with its Revolving Credit Commitment Percentage.
Notwithstanding the foregoing, in the event that any assignment of
rights and obligations of any Defaulting Lender hereunder shall
become effective under Applicable Law without compliance with the
provisions of this paragraph, then the assignee of such interest
shall be deemed to be a Defaulting Lender for all purposes of this
Agreement until such compliance occurs.
-93-
Subject
to acceptance and recording thereof by the Administrative Agent
pursuant to paragraph (c) of this
Section, from and after the effective date specified in each
Assignment and Assumption, the assignee thereunder shall be a party
to this Agreement and, to the extent of the interest assigned by
such Assignment and Assumption, have the rights and obligations of
a Lender under this Agreement, and the assigning Lender thereunder
shall, to the extent of the interest assigned by such Assignment
and Assumption, be released from its obligations under this
Agreement (and, in the case of an Assignment and Assumption
covering all of the assigning Lender’s rights and obligations
under this Agreement, such Lender shall cease to be a party hereto)
but shall continue to be entitled to the benefits of Sections 4.8, 4.9, 4.10, 4.11 and 11.3 with respect to facts and
circumstances occurring prior to the effective date of such
assignment; provided, that except to the
extent otherwise expressly agreed by the affected parties, no
assignment by a Defaulting Lender will constitute a waiver or
release of any claim of any party hereunder arising from that
▇▇▇▇▇▇’s having been a Defaulting Lender. Any assignment or
transfer by a Lender of rights or obligations under this Agreement
that does not comply with this paragraph shall be treated for
purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with
paragraph (d)
of this Section (other than a purported assignment to a natural
Person (or a holding company, investment vehicle or trust for, or
owned and operated for the primary benefit of, a natural Person) or
the Parent Borrower or any of the Parent Borrower’s
Subsidiaries or Affiliates, which shall be null and
void.)
(c) Register. The Administrative
Agent, acting solely for this purpose as a non-fiduciary agent of
the Borrowers, shall maintain at one of its offices in Charlotte,
North Carolina, a copy of each Assignment and Assumption and each
Incremental Amendment delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the
Revolving Credit Commitment of,
and principal amounts of (and stated interest on) the Loans owing
to, each Lender pursuant to the terms hereof from time to time (the
“Register”). The entries
in the Register shall be conclusive, absent manifest error, and the
Borrowers, the Administrative Agent and the Lenders shall treat
each Person whose name is recorded in the Register pursuant to the
terms hereof as a Lender hereunder for all purposes of this
Agreement. The Register, any Assignment and Assumption, and any
Administrative Questionnaire shall be available for inspection by
the Borrowers at any reasonable time and from time to time upon
reasonable prior notice by the Borrower Agent. The Register shall
be available for inspection by any Lender (but only to the extent
of entries in the Register that are applicable to such Lender), at
any reasonable time and from time to time upon reasonable prior
notice.
(d) Participations. Any Lender may
at any time, without the consent of, or notice to, the Borrowers or
the Administrative Agent, sell participations to any Person (other
than a natural Person or the Borrowers or any of the
Borrowers’ Subsidiaries or Affiliates) (each, a
“Participant”) in all or a
portion of such Lender’s rights and/or obligations under this
Agreement (including all or a portion of its Revolving Credit Commitment and/or the
Loans owing to it); provided that (i) such
Lender’s obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to
the other parties hereto for the performance of such obligations
and (iii) the Borrowers, the Administrative Agent, the Issuing
Lender, the Swingline Lender and the other Lenders shall continue
to deal solely and directly with such Lender in connection with
such Lender’s rights and obligations under this Agreement.
For the avoidance of doubt, each Lender shall be responsible for
the indemnity under Section 11.3(c) with
respect to any payments made by such Lender to its
Participant(s).
-94-
Any
agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole
right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement;
provided that such
agreement or instrument may provide that such Lender will not,
without the consent of the Participant, agree to any amendment,
modification or waiver or modification described in Section 11.2(b),
(c), (d) or (e) that directly and adversely
affects such Participant. The Borrowers agree that each Participant
shall be entitled to the benefits of Sections 4.9, 4.10 and 4.11 (subject to the
requirements and limitations therein, including the requirements
under Section 4.11(g) (it being
understood that the documentation required under Section 4.11(g) shall be
delivered to the participating Lender)) to the same extent as if it
were a Lender and had acquired its interest by assignment pursuant
to paragraph (b) of this
Section; provided
that such Participant (A) agrees to be subject to the provisions of
Section 4.12
as if it were an assignee under paragraph (b) of this Section;
and (B) shall not be entitled to receive any greater payment under
Sections
4.10 or
4.11, with respect
to any participation, than its participating Lender would have been
entitled to receive, except to the extent such entitlement to
receive a greater payment results from a Change in Law that occurs
after the Participant acquired the applicable participation. Each
Lender that sells a participation agrees, at the Borrower
Agent’s request and expense, to use reasonable efforts to
cooperate with the Borrowers to effectuate the provisions of
Section 4.12(b) with
respect to any Participant. To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 11.4 as though it
were a Lender; provided that such Participant
agrees to be subject to Section 4.6 as though it
were a Lender.
Each
Lender that sells a participation shall, acting solely for this
purpose as a non-fiduciary agent of the Borrowers, maintain a
register on which it enters the name and address of each
Participant and the principal amounts of (and stated interest on)
each Participant’s interest in the Loans or other obligations
under the Loan Documents (the “Participant Register”);
provided that no
Lender shall have any obligation to disclose all or any portion of
the Participant Register (including the identity of any Participant
or any information relating to a Participant’s interest in
any commitments, loans, letters of credit or its other obligations
under any Loan Document) to any Person except to the extent that
such disclosure is necessary to establish that such commitment,
loan, letter of credit or other obligation is in registered form
under Section 5f.103-1(c) of the United States Treasury
Regulations. The entries in the Participant Register shall be
conclusive absent manifest error, and such Lender shall treat each
Person whose name is recorded in the Participant Register as the
owner of such participation for all purposes of this Agreement
notwithstanding any notice to the contrary. For the avoidance of
doubt, the Administrative Agent (in its capacity as Administrative
Agent) shall have no responsibility for maintaining a Participant
Register.
(e) Certain Pledges. Any Lender may
at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement to secure obligations of
such Lender, including without limitation any pledge or assignment
to secure obligations to a Federal Reserve Bank; provided that no such pledge or
assignment shall release such Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such
Lender as a party hereto.
(f) Cashless Settlement.
Notwithstanding anything to the contrary contained in this
Agreement, any Lender may exchange, continue or rollover all or a
portion of its Loans in connection with any refinancing, extension,
loan modification or similar transaction permitted by the terms of
this Agreement, pursuant to a cashless settlement mechanism
approved by the Parent Borrower, the Administrative Agent and such
Lender.
-95-
SECTION
11.10 Treatment of Certain Information;
Confidentiality. Each of the Administrative Agent, the
Lenders and the Issuing Lender agree to maintain the
confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its Affiliates and to its and
its Related Parties (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential nature
of such Information and instructed to keep such Information
confidential), (b) to the extent required or requested by, or
required to be disclosed to, any regulatory or similar authority
purporting to have jurisdiction over such Person or its Related
Parties (including any self-regulatory authority, such as the
National Association of Insurance Commissioners), (c) as to the
extent required by Applicable Laws or regulations or in any legal,
judicial, administrative or other compulsory proceeding, (d) to any
other party hereto (subject to the applicable provisions of
Section 7.2), (e)
in connection with the exercise of any remedies under this
Agreement, under any other Loan Document or under any Secured Hedge
Agreement or Secured Cash Management Agreement, or any action or
proceeding relating to this Agreement, any other Loan Document or
any Secured Hedge Agreement or Secured Cash Management Agreement,
or the enforcement of rights hereunder or thereunder, (f) subject
to an agreement containing provisions substantially the same as
those of this Section, to (i) any assignee of or Participant in, or
any prospective assignee of or Participant in, any of its rights
and obligations under this Agreement or (ii) any actual or
prospective party (or its Related Parties) to any swap, derivative
or other transaction under which payments are to be made by
reference to the Borrowers and their obligations, this Agreement or
payments hereunder, (g) on a confidential basis to (i) any rating
agency in connection with rating the Parent Borrower or its
Subsidiaries or the Credit Facility or (ii) the CUSIP Service
Bureau or any similar agency in connection with the issuance and
monitoring of CUSIP numbers with respect to the Credit Facility,
(h) with the consent of the Borrowers, (i) with the consent of the
Borrowers, not to be unreasonably withheld, to Gold Sheets and
other similar bank trade publications, such information to consist
solely of deal terms and other information customarily found in
such publications, (j) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this
Section or (ii) becomes available to the Administrative Agent, any
Lender, the Issuing Lender or any of their respective Affiliates
from a third party that is not, to such Person’s knowledge,
subject to confidentiality obligations to either Borrower, (k) to
governmental regulatory authorities in connection with any
regulatory examination of the Administrative Agent or any Lender or
in accordance with the Administrative Agent’s or any
Lender’s regulatory compliance policy if the Administrative
Agent or such Lender deems necessary for the mitigation of claims
by those authorities against the Administrative Agent or such
Lender or any of its subsidiaries or affiliates, or (l) for
purposes of establishing a “due diligence” defense,
provided that, unless specifically prohibited by Applicable Law or
court order, each Lender shall notify the Parent Borrower of any
request by any Governmental Authority or representative thereof
(other than such request in connection with any examination of the
financial condition or other routine examination of such Lender by
such Governmental Authority) for disclosure of any such non-public
information prior to disclosure of such information. For purposes
of this Section, “Information” means all
information received from any Credit Party or any Subsidiary
thereof relating to any Credit Party or any Subsidiary thereof or
any of their respective businesses, other than any such information
that is available to the Administrative Agent, any Lender or any
Issuing Lender on a non-confidential basis prior to disclosure by
any Credit Party or any Subsidiary thereof; provided that, in the case of
information received from a Credit Party or any Subsidiary thereof
after the date hereof, such information is clearly identified at
the time of delivery as confidential. Any Person required to
maintain the confidentiality of Information as provided in this
Section shall be considered to have complied with its obligation to
do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person
would accord to its own confidential information.
SECTION
11.11 Performance of Duties. Each of
the Credit Party’s obligations under this Agreement and each
of the other Loan Documents shall be performed by such Credit Party
at its sole cost and expense.
-96-
SECTION
11.12 All Powers Coupled with
Interest. All powers of attorney and other authorizations
granted to the Lenders, the Administrative Agent and any Persons
designated by the Administrative Agent or any Lender pursuant to
any provisions of this Agreement or any of the other Loan Documents
shall be deemed coupled with an interest and shall be irrevocable
so long as any of the Obligations remain unpaid or unsatisfied, any
of the Revolving Credit
Commitments remain in effect or the Credit Facility has not been
terminated.
SECTION
11.13 Survival.
(a) All representations
and warranties set forth in Article VI and all
representations and warranties contained in any certificate, or any
of the Loan Documents (including, but not limited to, any such
representation or warranty made in or in connection with any
amendment thereto) shall constitute representations and warranties
made under this Agreement. All representations and warranties made
under this Agreement shall survive the Closing Date and shall not
be waived by the execution and delivery of this Agreement, any
investigation made by or on behalf of the Lenders or any borrowing
hereunder.
(b) Notwithstanding any
termination of this Agreement, the indemnities to which the
Administrative Agent and the Lenders are entitled under the
provisions of this Article
XI and any other provision of this Agreement and the other
Loan Documents shall continue in full force and effect and shall
protect the Administrative Agent and the Lenders against events
arising after such termination as well as before.
SECTION
11.14 Titles and Captions. Titles and
captions of Articles, Sections and subsections in, and the table of
contents of, this Agreement are for convenience only, and neither
limit nor amplify the provisions of this Agreement.
SECTION
11.15 Severability of Provisions. Any
provision of this Agreement or any other Loan Document which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective only to the extent of such prohibition
or unenforceability without invalidating the remainder of such
provision or the remaining provisions hereof or thereof or
affecting the validity or enforceability of such provision in any
other jurisdiction. In the event that any provision is held to be
so prohibited or unenforceable in any jurisdiction, the
Administrative Agent, the Lenders and the Borrowers shall negotiate
in good faith to amend such provision to preserve the original
intent thereof in such jurisdiction (subject to the approval of the
Required Lenders).
SECTION
11.16 Counterparts; Integration;
Effectiveness; Electronic Execution.
(a) Counterparts; Integration;
Effectiveness. This Agreement may be executed in
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.
This Agreement and the other Loan Documents, and any separate
letter agreements with respect to fees payable to the
Administrative Agent, the Issuing Lender, the Swingline Lender
and/or the Arrangers, constitute the entire contract among the
parties relating to the subject matter hereof and supersede any and
all previous agreements and understandings, oral or written,
relating to the subject matter hereof. Except as provided in
Section 5.1,
this Agreement shall become effective when it shall have been
executed by the Administrative Agent and when the Administrative
Agent shall have received counterparts hereof that, when taken
together, bear the signatures of each of the other parties hereto.
Delivery of an executed counterpart of a signature page of this
Agreement by facsimile or in electronic (i.e., “pdf” or
“tif”) format shall be effective as delivery of a
manually executed counterpart of this Agreement.
-97-
(b) Electronic Execution of
Assignments. The words “execution,”
“signed,” “signature,” and words of like
import in any Assignment and Assumption shall be deemed to include
electronic signatures or the keeping of records in electronic form,
each of which shall be of the same legal effect, validity or
enforceability as a manually executed signature or the use of a
paper-based recordkeeping system, as the case may be, to the extent
and as provided for in any Applicable Law, including the Federal
Electronic Signatures in Global and National Commerce Act, the New
York State Electronic Signatures and Records Act, or any other
similar state laws based on the Uniform Electronic Transactions
Act.
SECTION
11.17 Term of Agreement. This
Agreement shall remain in effect from the Closing Date through and
including the date upon which all Obligations (other than
contingent indemnification obligations not then due) arising
hereunder or under any other Loan Document shall have been
indefeasibly and irrevocably paid and satisfied in full, all
Letters of Credit have been terminated or expired (or been Cash
Collateralized or other arrangements with respect thereto have been
made that are satisfactory to the Issuing Lender) or otherwise
satisfied in a manner acceptable to the Issuing Lender and the
Revolving Credit Commitment has been terminated. No termination of
this Agreement shall affect the rights and obligations of the
parties hereto arising prior to such termination or in respect of
any provision of this Agreement which survives such
termination.
SECTION
11.18 USA PATRIOT Act. The
Administrative Agent and each Lender hereby notifies the Borrowers
that pursuant to the requirements of the PATRIOT Act, each of them
is required to obtain, verify and record information that
identifies each Credit Party, which information includes the name
and address of each Credit Party and other information that will
allow such Lender to identify each Credit Party in accordance with
the PATRIOT Act.
SECTION
11.19 Independent Effect of
Covenants. The Borrowers expressly acknowledge and agree
that each covenant contained in Articles VII or VIII hereof shall be given
independent effect. Accordingly, the Borrowers shall not engage in
any transaction or other act otherwise permitted under any covenant
contained in Articles
VII or VIII,
if before or after giving effect to such transaction or act, the
Borrowers shall or would be in breach of any other covenant
contained in Articles
VII or VIII.
SECTION
11.20 No Advisory or Fiduciary
Responsibility.
(a) In connection with
all aspects of each transaction contemplated hereby, each Credit
Party acknowledges and agrees, and acknowledges its
Affiliates’ understanding, that (i) the facilities provided
for hereunder and any related arranging or other services in
connection therewith (including in connection with any amendment,
waiver or other modification hereof or of any other Loan Document)
are an arm’s-length commercial transaction between the
Borrowers and their Affiliates, on the one hand, and the
Administrative Agent, the Arrangers and the Lenders, on the other
hand, and the Borrowers are capable of evaluating and understanding
and understands and accepts the terms, risks and conditions of the
transactions contemplated hereby and by the other Loan Documents
(including any amendment, waiver or other modification hereof or
thereof), (ii) in connection with the process leading to such
transaction, each of the Administrative Agent, the Arrangers and
the Lenders is and has been acting solely as a principal and is not
the financial advisor, agent or fiduciary, for the Borrowers or any
of their Affiliates, stockholders, creditors or employees or any
other Person, (iii) none of the Administrative Agent, the Arrangers
or the Lenders has assumed or will assume an advisory, agency or
fiduciary responsibility in favor of the Borrowers with respect to
any of the transactions contemplated hereby or the process leading
thereto, including with respect to any amendment, waiver or other
modification hereof or of any other Loan Document (irrespective of
whether any Arranger or Lender has advised or is currently advising
the Borrowers or any of their Affiliates on other matters) and none
of the Administrative Agent, the Arrangers or the Lenders has any
obligation to the Borrowers or any of their Affiliates with respect
to the financing transactions contemplated hereby except those
obligations expressly set forth herein and in the other Loan
Documents, (iv) the Arrangers and the Lenders and their respective
Affiliates may be engaged in a broad range of transactions that
involve interests that differ
-98-
from,
and may conflict with, those of the Borrowers and their Affiliates,
and none of the Administrative Agent, the Arrangers or the Lenders
has any obligation to disclose any of such interests by virtue of
any advisory, agency or fiduciary relationship and (v) the
Administrative Agent, the Arrangers and the Lenders have not
provided and will not provide any legal, accounting, regulatory or
tax advice with respect to any of the transactions contemplated
hereby (including any amendment, waiver or other modification
hereof or of any other Loan Document) and the Credit Parties have
consulted their own legal, accounting, regulatory and tax advisors
to the extent they have deemed appropriate.
(b) Each Credit Party
acknowledges and agrees that each Lender, the Arrangers and any
Affiliate thereof may lend money to, invest in, and generally
engage in any kind of business with, any of the Borrowers, any
Affiliate thereof or any other person or entity that may do
business with or own securities of any of the foregoing, all as if
such Lender, Arranger or Affiliate thereof were not a Lender or
Arranger or an Affiliate thereof (or an agent or any other person
with any similar role under the Credit Facilities) and without any
duty to account therefor to any other Lender, the Arrangers, the
Borrowers or any Affiliate of the foregoing. Each Lender, the
Arrangers and any Affiliate thereof may accept fees and other
consideration from the Borrowers or any Affiliate thereof for
services in connection with this Agreement, the Credit Facilities
or otherwise without having to account for the same to any other
Lender, the Arrangers, the Borrowers or any Affiliate of the
foregoing.
SECTION
11.21 Borrower Agent. The Cayman
Borrower hereby designates the Parent Borrower as its
representative and agent (in such capacity, the “Borrower Agent”) for all
purposes under the Loan Documents, including requests for Loans and
Letters of Credit, designation of interest rates, delivery or
receipt of communications, preparation and delivery of financial
reports, receipt and payment of Obligations, requests for waivers,
amendments or other accommodations, actions under the Loan
Documents (including in respect of compliance with covenants), and
all other dealings with the Administrative Agent, the Issuing
Lender, the Swingline Lender or any Lender. Borrower Agent
▇▇▇▇▇▇ accepts such appointment. The Administrative Agent and
Lenders shall be entitled to rely upon, and shall be fully
protected in relying upon, any notice or communication (including
any Notice of Borrowing) delivered by Borrower Agent on behalf of
the Cayman Borrower. The Administrative Agent and Lenders may
give any notice or communication with the Cayman Borrower to
Borrower Agent on behalf of the Cayman Borrower. Each of the
Administrative Agent, Issuing Lender, Swingline Lender and Lenders
shall have the right, in their discretion, to deal exclusively with
Borrower Agent for any or all purposes under the Loan
Documents. The ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ agrees that any notice,
election, communication, representation, agreement or undertaking
made on its behalf by Borrower Agent shall be binding upon and
enforceable against it.
SECTION
11.22 Nature of Obligations.
Notwithstanding anything to contrary contained in the Loan
Documents, (a) the US Credit Parties shall be jointly and severally
liable for all Obligations and (b) the Foreign Credit Parties shall
be jointly and severally liable for all Cayman Obligations, but in
no event shall any Foreign Credit Party have any obligation with
respect to the US Obligations. In the event of any conflict or
inconsistency between this Section 11.22 and any other
provision of any Loan Document, this Section 11.22 shall
control.
SECTION
11.23 Judgment Currency. Each Credit
Party’s obligation hereunder and under the other Loan
Documents to make payments in Dollars shall not be discharged or
satisfied by any tender or recovery pursuant to any judgment
expressed in or converted into any currency other than Dollars,
except to the extent that such tender or recovery results in the
effective receipt by the Administrative Agent, the Issuing Lender
or the respective Lender of the full amount of Dollars expressed to
be payable to the Administrative Agent, the Issuing Lender or such
Lender under this Agreement or the other Loan Documents. If,
for the purpose of obtaining or enforcing judgment against any
Credit Party in any court or in any jurisdiction, it becomes
necessary to convert into or from any currency other than Dollars
(such
-99-
other
currency being hereinafter referred to as the “Judgment Currency”), an
amount due in Dollars, the conversion shall be made, at the rate of
exchange quoted by the Administrative Agent (or, if the
Administrative Agent does not quote a rate of exchange on such
currency, by a known dealer in such currency designated by the
Administrative Agent), determined, in each case, as of the Business
Day on which the judgment is given. If the amount of Dollars
so purchased is less than the sum originally due to the
Administrative Agent, the Issuing Lender or any Lender from the
Borrowers, each Borrower agrees, jointly and severally, as a
separate obligation and notwithstanding any such judgment, to
indemnify the Administrative Agent, the Issuing Lender or such
Lender, as the case may be, against such loss. If the amount
of Dollars so purchased is greater than the sum originally due to
the Administrative Agent, the Issuing Lender or any Lender, the
Administrative Agent, the Issuing Lender or such Lender, as the
case may be, agrees to return the amount of any excess to the
Borrowers (or to any other Person who may be entitled thereto under
Applicable Law). For purposes of determining any rate of
exchange for this Section 11.22, such
amounts shall include any premium and costs payable in connection
with the purchase of Dollars.
SECTION
11.24 Inconsistencies with Other
Documents. In the event there is a conflict or inconsistency
between this Agreement and any other Loan Document, the terms of
this Agreement shall control; provided that any provision of
the Security Documents which imposes additional burdens on the
Parent Borrower or any of its Subsidiaries or further restricts the
rights of the Parent Borrower or any of its Subsidiaries or gives
the Administrative Agent or Lenders additional rights shall not be
deemed to be in conflict or inconsistent with this Agreement and
shall be given full force and effect.
SECTION
11.25 Amendment and Restatement; No
Novation. This Agreement constitutes an amendment and
restatement of the Existing Credit Agreement, effective from and
after the Closing Date. The execution and delivery of this
Agreement shall not constitute a novation of any indebtedness or
other obligations owing to the Lenders or the Administrative Agent
under the Existing Credit Agreement based on facts or events
occurring or existing prior to the execution and delivery of this
Agreement. On the Closing Date, the credit facilities described in
the Existing Credit Agreement, shall be amended, supplemented,
modified and restated in their entirety by the facilities described
herein, and all loans and other obligations of the Borrower
outstanding as of such date under the Existing Credit Agreement,
shall be deemed to be loans and obligations outstanding under the
corresponding facilities described herein, without any further
action by any Person, except that the Administrative Agent shall
make such transfers of funds as are necessary in order that the
outstanding balance of such Loans, together with any Loans funded
on the Closing Date, reflect the respective Revolving Credit
Commitment of the Lenders hereunder and the Borrowers agree to pay
any amounts required pursuant to Section 4.9 in connection with
such transfers as if all Loans under the Existing Credit Agreement
were repaid on the Closing Date, to the extent not waived by the
applicable Lenders.
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:
-100-
(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.
SECTION
11.27 Certain ERISA
Matters.
(a) Each Lender (x)
represents and warrants, as of the date such Person became a Lender
party hereto, to, and (y) covenants, from the date such Person
became a Lender party hereto to the date such Person ceases being a
Lender party hereto, for the benefit of, the Administrative Agent,
each Arranger and their respective Affiliates, and not, for the
avoidance of doubt, to or for the benefit of the Parent Borrower or
any other Credit Party, that at least one of the following is and
will be true:
(i) such Lender is not
using “plan assets” (within the meaning of 29 CFR
§ 2510.3-101, as modified by Section 3(42) of ERISA) of one or
more Benefit Plans in connection with the Loans, the Letters of
Credit or the Revolving Credit Commitments;
(ii) the
transaction exemption set forth in one or more PTEs, such as PTE
84-14 (a class exemption for certain transactions determined by
independent qualified professional asset managers), PTE 95-60 (a
class exemption for certain transactions involving insurance
company general accounts), PTE 90-1 (a class exemption for certain
transactions involving insurance company pooled separate accounts),
PTE 91-38 (a class exemption for certain transactions involving
bank collective investment funds) or PTE 96-23 (a class exemption
for certain transactions determined by in-house asset managers), is
applicable with respect to such ▇▇▇▇▇▇’s entrance into,
participation in, administration of and performance of the Loans,
the Letters of Credit, the Revolving Credit Commitments and this
Agreement;
(iii) (A)
such Lender is an investment fund managed by a “Qualified
Professional Asset Manager” (within the meaning of Part VI of
PTE 84-14), (B) such Qualified Professional Asset Manager made the
investment decision on behalf of such Lender to enter into,
participate in, administer and perform the Loans, the Letters of
Credit, the Revolving Credit Commitments and this Agreement, (C)
the entrance into, participation in, administration of and
performance of the Loans, the Letters of Credit, the Revolving
Credit Commitments and this Agreement satisfies the requirements of
sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the
best knowledge of such Lender, the requirements of subsection (a)
of Part I of PTE 84-14 are satisfied with respect to such
Lender’s entrance into, participation in, administration of
and performance of the Loans, the Letters of Credit, the Revolving
Credit Commitments and this Agreement; or
(iv) such
other representation, warranty and covenant as may be agreed in
writing between the Administrative Agent, in its sole discretion,
and such Lender.
(b) In addition, unless
sub-clause (i) in the immediately preceding clause (a) is true with
respect to a Lender or such Lender has not provided another
representation, warranty and covenant as provided in sub-clause
(iv) in the immediately preceding clause (a), such Lender further
(x) represents and warrants, as of the date such Person became a
Lender party hereto, to, and (y) covenants, from the date such
Person became a Lender party hereto to the date such Person ceases
being a Lender party hereto, for the benefit of, the Administrative
Agent, each Arranger and their respective Affiliates, and not, for
the avoidance of doubt, to or for the benefit of the Parent
Borrower or any other Credit Party, that:
-101-
(i) none of the
Administrative Agent, any Arranger nor any of their respective
Affiliates is a fiduciary with respect to the assets of such Lender
(including in connection with the reservation or exercise of any
rights by the Administrative Agent under this Agreement, any Loan
Document or any documents related to hereto or
thereto);
(ii) the
Person making the investment decision on behalf of such Lender with
respect to the entrance into, participation in, administration of
and performance of the Loans, the Letters of Credit, the Revolving
Credit Commitments and this Agreement is independent (within the
meaning of 29 CFR § 2510.3-21) and is a bank, an insurance
carrier, an investment adviser, a broker-dealer or other person
that holds, or has under management or control, total assets of at
least $50 million, in each case as described in 29 CFR §
2510.3-21(c)(1)(i)(A)-(E),
(iii) the
Person making the investment decision on behalf of such Lender with
respect to the entrance into, participation in, administration of
and performance of the Loans, the Letters of Credit, the Revolving
Credit Commitments and this Agreement is capable of evaluating
investment risks independently, both in general and with regard to
particular transactions and investment strategies (including in
respect of the Secured Obligations);
(iv) the
Person making the investment decision on behalf of such Lender with
respect to the entrance into, participation in, administration of
and performance of the Loans, the Letters of Credit, the Revolving
Credit Commitments and this Agreement is a fiduciary under ERISA or
the Code, or both, with respect to the Loans, the Letters of
Credit, the Revolving Credit Commitments and this Agreement and is
responsible for exercising independent judgment in evaluating the
transactions hereunder, and
(v) no fee or other
compensation is being paid directly to the Administrative Agent,
each Arranger or their respective Affiliates for investment advice
(as opposed to other services) in connection with the Loans, the
Letters of Credit, the Revolving Credit Commitments or this
Agreement.
(c) The Administrative
Agent and each Arranger hereby informs the Lenders that each such
Person is not undertaking to provide impartial investment advice,
or to give advice in a fiduciary capacity, in connection with the
transactions contemplated hereby, and that such Person has a
financial interest in the transactions contemplated hereby in that
such Person or an Affiliate thereof (i) may receive interest or
other payments with respect to the Loans, the Letters of Credit,
the Revolving Credit Commitments and this Agreement, (ii) may
recognize a gain if it extended the Loans, the Letters of Credit or
the Revolving Credit Commitments for an amount less than the amount
being paid for an interest in the Loans, the Letters of Credit or
the Revolving Credit Commitments by such Lender or (iii) may
receive fees or other payments in connection with the transactions
contemplated hereby, the Loan Documents or otherwise, including
structuring fees, commitment fees, arrangement fees, facility fees,
upfront fees, underwriting fees, ticking fees, agency fees,
administrative agent or collateral agent fees, utilization fees,
minimum usage fees, letter of credit fees, fronting fees, deal-away
or alternate transaction fees, amendment fees, processing fees,
term out premiums, banker’s acceptance fees, breakage or
other early termination fees or fees similar to the
foregoing.
[Signature
pages to follow]
-102-
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed under seal by their duly authorized officers, all as of
the day and year first written above.
UBIQUITI NETWORKS, INC., as Parent
Borrower
By:
/s/ ▇▇▇▇▇
▇▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Chief Accounting Officer
UBIQUITI INTERNATIONAL HOLDING COMPANY
LIMITED, as Cayman Borrower
By:
/s/ ▇▇▇▇▇▇ ▇.
▇▇▇▇
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇
Title:
Director
-103-
Agents and
Lenders:
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent, Swingline Lender, Issuing Lender and
Lender
By:
/s/ ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
Name:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Director
HSBC BANK USA, NATIONAL
ASSOCIATION,
as
Lender
By:
/s/ ▇▇▇▇▇▇▇
▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: VP
& Global Relationship Manager
FIFTH THIRD BANK,
as
Lender
By:
/s/ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Director
U.S. BANK NATIONAL
ASSOCIATION,
as
Lender
By:
/s/ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Senior
Vice President
-104-
PNC BANK, NATIONAL ASSOCIATION,
as
Lender
By:
/s/ ▇▇▇▇▇▇ ▇.
▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant
Vice President
The Bank of Tokyo-Mitsubishi UFJ,
Ltd.,
as
Lender
By:
/s/ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
MUFG UNION BANK, N.A.,
as
Lender
By:
/s/ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
TD BANK, N.A.,
as
Lender
By:
/s/ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
BRANCH BANKING AND TRUST
COMPANY,
as
Lender
By:
/s/ ▇▇▇▇
▇▇▇▇▇▇
Name:
▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
-105-
CTBC Bank Co., Ltd., New York
Branch,
as
Lender
By:
/s/ ▇▇▇▇▇
▇▇
Name:
▇▇▇▇▇ ▇▇
Title: SVP & General
Manager
▇▇▇▇▇ ▇▇▇ COMMERCIAL BANK, LTD., New York
Branch,
as
Lender
By:
/s/ ▇▇▇▇ ▇.▇.
▇▇▇▇
Name:
▇▇▇▇ ▇.▇. ▇▇▇▇
Title: VP & General
Manager
Taiwan Cooperative Bank Ltd., Acting through
its New York Branch,
as
Lender
By:
/s/ ▇▇ ▇▇▇
▇▇▇▇▇
Name:
▇▇ ▇▇▇ ▇▇▇▇▇
Title: SVP & General
Manager
-106-
EXHIBIT A-1
to
Second
Amended and Restated Credit Agreement
dated
as of January 17, 2018
by and
among
and
Ubiquiti
International Holding Company Limited,
as
Borrowers,
the
lenders party thereto,
as
Lenders,
and
▇▇▇▇▇
Fargo Bank, National Association,
as
Administrative Agent
FORM OF US REVOLVING CREDIT NOTE
-107-
US REVOLVING CREDIT NOTE
__________,
20___
FOR
VALUE RECEIVED, the undersigned, UBIQUITI NETWORKS, INC., a
Delaware corporation (the “Parent Borrower”),
promises to pay to _______________ (the “Lender”), at the place
and times provided in the Credit Agreement referred to below, the
principal sum of the unpaid principal amount of all Revolving
Credit Loans made by the Lender from time to time pursuant to that
certain Second Amended and Restated Credit Agreement, dated as of
January 17, 2018 (as may be amended, restated, supplemented or
otherwise modified from time to time, the “Credit Agreement”), by
and among the Parent Borrower and UBIQUITI INTERNATIONAL HOLDING
COMPANY LIMITED, an exempted company incorporated under the laws of
the Cayman Islands, as Borrowers, the Lenders party thereto and
▇▇▇▇▇ Fargo Bank, National Association, as Administrative Agent.
Capitalized terms used herein and not defined herein shall have the
meanings assigned thereto in the Credit Agreement.
The
unpaid principal amount of this US Revolving Credit Note from time
to time outstanding is payable as provided in the Credit Agreement
and shall bear interest as provided in Section 4.1 of the Credit
Agreement. All payments of principal and interest on this US
Revolving Credit Note shall be payable in Dollars in immediately
available funds as provided in the Credit Agreement.
This US
Revolving Credit Note is entitled to the benefits of, and evidences
Obligations incurred under, the Credit Agreement, to which
reference is made for a description of the security for this US
Revolving Credit Note and for a statement of the terms and
conditions on which the Parent Borrower is permitted and required
to make prepayments and repayments of principal of the Obligations
evidenced by this US Revolving Credit Note and on which such
Obligations may be declared to be immediately due and
payable.
THIS US
REVOLVING CREDIT NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD
TO CONFLICT OF LAW PRINCIPLES THAT WOULD REQUIRE THE APPLICATION OF
THE LAWS OF ANY OTHER JURISDICTION.
The
Indebtedness evidenced by this US Revolving Credit Note is senior
in right of payment to all Subordinated Indebtedness referred to in
the Credit Agreement.
The
Parent Borrower hereby waives all requirements as to diligence,
presentment, demand of payment, protest and (except as required by
the Credit Agreement) notice of any kind with respect to this US
Revolving Credit Note.
This US
Revolving Credit Note is one of the Notes referred to in the Credit
Agreement, [amends, restates and continues the indebtedness under
any previous US Revolving Credit Note issued to the Lender in
connection with the Existing Credit Agreement and is entitled to
the benefits thereof]1 and may be prepaid in whole or in part
subject to the terms and conditions provided therein.
[Remainder
of page intentionally left blank; signature page
follows]
-108-
IN
WITNESS WHEREOF, the undersigned has executed this US Revolving
Credit Note as of the day and year first above
written.
|
|
|
|
|
By:
|
|
Name:
|
|
Title:
|
-109-
EXHIBIT A-2
to
Second
Amended and Restated Credit Agreement
dated
as of January 17, 2018
by and
among
and
Ubiquiti
International Holding Company Limited,
as
Borrowers,
the
lenders party thereto,
as
Lenders,
and
▇▇▇▇▇
Fargo Bank, National Association,
as
Administrative Agent
FORM OF CAYMAN REVOLVING CREDIT NOTE
-110-
CAYMAN REVOLVING CREDIT NOTE
__________,
20___
FOR
VALUE RECEIVED, the undersigned, UBIQUITI INTERNATIONAL HOLDING
COMPANY LIMITED, an exempted company incorporated under the laws of
the Cayman Islands (the “Cayman Borrower”),
promises to pay to _______________ (the “Lender”), at the place
and times provided in the Credit Agreement referred to below, the
principal sum of the unpaid principal amount of all Revolving
Credit Loans made by the Lender from time to time pursuant to that
certain Second Amended and Restated Credit Agreement, dated as of
January 17, 2018 (as may be amended, restated, supplemented or
otherwise modified from time to time, the “Credit Agreement”), by
and among the Cayman Borrower and, UBIQUITI NETWORKS, INC., a
Delaware corporation, as Borrowers, the Lenders party thereto and
▇▇▇▇▇ Fargo Bank, National Association, as Administrative Agent.
Capitalized terms used herein and not defined herein shall have the
meanings assigned thereto in the Credit Agreement.
The
unpaid principal amount of this Cayman Revolving Credit Note from
time to time outstanding is payable as provided in the Credit
Agreement and shall bear interest as provided in Section 4.1 of the Credit
Agreement. All payments of principal and interest on this Cayman
Revolving Credit Note shall be payable in Dollars in immediately
available funds as provided in the Credit Agreement.
This
Cayman Revolving Credit Note is entitled to the benefits of, and
evidences Obligations incurred under, the Credit Agreement, to
which reference is made for a description of the security for this
Cayman Revolving Credit Note and for a statement of the terms and
conditions on which the Borrowers are permitted and required to
make prepayments and repayments of principal of the Obligations
evidenced by this Cayman Revolving Credit Note and on which such
Obligations may be declared to be immediately due and
payable.
THIS
CAYMAN REVOLVING CREDIT NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD
TO CONFLICT OF LAW PRINCIPLES THAT WOULD REQUIRE THE APPLICATION OF
THE LAWS OF ANY OTHER JURISDICTION.
The
Indebtedness evidenced by this Cayman Revolving Credit Note is
senior in right of payment to all Subordinated Indebtedness
referred to in the Credit Agreement.
The
Cayman Borrower hereby waives all requirements as to diligence,
presentment, demand of payment, protest and (except as required by
the Credit Agreement) notice of any kind with respect to this
Cayman Revolving Credit Note.
This
Cayman Revolving Credit Note is one of the Notes referred to in the
Credit Agreement, [amends, restates and continues the indebtedness
under any previous Cayman Revolving Credit Note issued to the
Lender in connection with the Existing Credit Agreement and is
entitled to the benefits thereof]2 and may be prepaid in whole or in part
subject to the terms and conditions provided therein.
[Remainder
of page intentionally left blank; signature page
follows]
-111-
IN
WITNESS WHEREOF, the undersigned has executed this Cayman Revolving
Credit Note as of the day and year first above
written.
|
UBIQUITI
INTERNATIONAL HOLDING COMPANY LIMITED
|
|
|
|
|
|
By:
|
|
Name:
|
|
Title:
|
-112-
EXHIBIT A-3
to
Second
Amended and Restated Credit Agreement
dated
as of January 17, 2018
by and
among
and
Ubiquiti
International Holding Company Limited,
as
Borrowers,
the
lenders party thereto,
as
Lenders,
and
▇▇▇▇▇
Fargo Bank, National Association,
as
Administrative Agent
FORM OF SWINGLINE NOTE
-113-
SWINGLINE NOTE
__________,
20___
FOR
VALUE RECEIVED, the undersigned, UBIQUITI NETWORKS, INC., a
Delaware corporation (the “Parent Borrower”),
promises to pay to ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION (the
“Lender”), at the place
and times provided in the Credit Agreement referred to below, the
principal sum of the unpaid principal amount of all Swingline Loans
made by the Lender from time to time pursuant to that certain
Second Amended and Restated Credit Agreement, dated as of January
17, 2018 (as may be amended, restated, supplemented or otherwise
modified from time to time, the “Credit Agreement”), by
and among the Parent Borrower and Ubiquiti International Holding
Company Limited, an exempted company incorporated under the laws of
the Cayman Islands, as Borrowers, the Lenders party thereto and
▇▇▇▇▇ Fargo Bank, National Association, as Administrative Agent.
Capitalized terms used herein and not defined herein shall have the
meanings assigned thereto in the Credit Agreement.
The
unpaid principal amount of this Swingline Note from time to time
outstanding is payable as provided in the Credit Agreement and
shall bear interest as provided in Section 4.1 of the Credit
Agreement. Swingline Loans refunded as Revolving Credit Loans in
accordance with Section
2.2(b) of the Credit Agreement shall be payable by the
Parent Borrower as Revolving Credit Loans pursuant to the Revolving
Credit Notes, and shall not be payable under this Swingline Note as
Swingline Loans. All payments of principal and interest on this
Swingline Note shall be payable in Dollars in immediately available
funds as provided in the Credit Agreement.
This
Swingline Note is entitled to the benefits of, and evidences
Obligations incurred under, the Credit Agreement, to which
reference is made for a description of the security for this
Swingline Note and for a statement of the terms and conditions on
which the Parent Borrower is permitted and required to make
prepayments and repayments of principal of the Obligations
evidenced by this Swingline Note and on which such Obligations may
be declared to be immediately due and payable.
THIS
SWINGLINE NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT
OF LAW PRINCIPLES THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF
ANY OTHER JURISDICTION.
The
Indebtedness evidenced by this Swingline Note is senior in right of
payment to all Subordinated Indebtedness referred to in the Credit
Agreement.
The
Parent Borrower hereby waives all requirements as to diligence,
presentment, demand of payment, protest and (except as required by
the Credit Agreement) notice of any kind with respect to this
Swingline Note.
This
Swingline Note is one of the Notes referred to in the Credit
Agreement, amends, restates and continues the indebtedness under
any previous Swingline Note issued to the Lender in connection with
the Existing Credit Agreement, is entitled to the benefits thereof
and may be prepaid in whole or in part subject to the terms and
conditions provided therein.
[Remainder
of page intentionally left blank; signature page
follows]
-114-
IN
WITNESS WHEREOF, the undersigned has executed this Swingline Note
as of the day and year first above written.
|
UBIQUITI
NETWORKS, INC.
|
|
|
|
|
|
By:
|
|
Name:
|
|
Title:
|
-115-
EXHIBIT A-4
to
Second
Amended and Restated Credit Agreement
dated
as of January 17, 2018
by and
among
Ubiquiti
Networks, Inc.,
and
Ubiquiti
International Holding Company Limited,
as
Borrowers,
the
lenders party thereto,
as
Lenders,
and
▇▇▇▇▇
Fargo Bank, National Association,
as
Administrative Agent
FORM OF TERM LOAN NOTE
-116-
TERM LOAN NOTE
__________,
20___
FOR
VALUE RECEIVED, the undersigned, UBIQUITI NETWORKS, INC., a
Delaware corporation (the “Parent Borrower”),
promises to pay to _______________ (the “Lender”), at the place
and times provided in the Credit Agreement referred to below, the
principal sum of the unpaid principal amount of all Term Loans made
by the Lender pursuant to that certain Second Amended and Restated
Credit Agreement, dated as of January 17, 2018 (as may be amended,
restated, supplemented or otherwise modified from time to time, the
“Credit
Agreement”), by and among the Parent Borrower and
UBIQUITI INTERNATIONAL HOLDING COMPANY LIMITED, an exempted company
incorporated under the laws of the Cayman Islands, as Borrowers,
the Lenders party thereto and ▇▇▇▇▇ Fargo Bank, National
Association, as Administrative Agent. Capitalized terms used herein
and not defined herein shall have the meanings assigned thereto in
the Credit Agreement.
The
unpaid principal amount of this Term Loan Note from time to time
outstanding is payable as provided in the Credit Agreement and
shall bear interest as provided in Section 4.1 of the Credit
Agreement. All payments of principal and interest on this Term Loan
Note shall be payable in Dollars in immediately available funds as
provided in the Credit Agreement.
This
Term Loan Note is entitled to the benefits of, and evidences
Obligations incurred under, the Credit Agreement, to which
reference is made for a description of the security for this Term
Loan Note and for a statement of the terms and conditions on which
the Borrower is permitted and required to make prepayments and
repayments of principal of the Obligations evidenced by this Term
Loan Note and on which such Obligations may be declared to be
immediately due and payable.
THIS
TERM LOAN NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT
OF LAW PRINCIPLES THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF
ANY OTHER JURISDICTION.
The
Indebtedness evidenced by this Term Loan Note is senior in right of
payment to all Subordinated Indebtedness referred to in the Credit
Agreement.
The
Borrower hereby waives all requirements as to diligence,
presentment, demand of payment, protest and (except as required by
the Credit Agreement) notice of any kind with respect to this Term
Loan Note.
This
Term Loan Note is one of the Notes referred to in the Credit
Agreement, [amends, restates and continues the indebtedness under
any previous Term Loan Note issued to the Lender in connection with
the Existing Credit Agreement and is entitled to the benefits
thereof]3 and may be prepaid in whole or in part
subject to the terms and conditions provided therein.
[Remainder
of page intentionally left blank; signature page
follows]
-117-
IN
WITNESS WHEREOF, the undersigned has executed this Term Loan Note
as of the day and year first above written.
|
UBIQUITI
NETWORKS, INC.
|
|
|
|
|
|
By:
|
|
Name:
|
|
Title:
|
-118-
EXHIBIT B
to
Second
Amended and Restated Credit Agreement
dated
as of January 17, 2018
by and
among
Ubiquiti
Networks, Inc.,
and
Ubiquiti
International Holding Company Limited,
as
Borrowers,
the
lenders party thereto,
as
Lenders,
and
▇▇▇▇▇
Fargo Bank, National Association,
as
Administrative Agent
FORM OF NOTICE OF BORROWING
-119-
NOTICE OF BORROWING
Dated
as of: _____________
▇▇▇▇▇
Fargo Bank, National Association,
as
Administrative Agent
MAC D
1109-019
1525
West ▇.▇. ▇▇▇▇▇▇ Blvd.
Charlotte,
North Carolina 28262
Attention:
Syndication Agency Services
Ladies
and Gentlemen:
This
irrevocable Notice of Borrowing is delivered to you pursuant to
Section
[2.3][2.7][2.9] of the Second Amended and Restated Credit
Agreement, dated as of January 17, 2018 (as may be amended,
restated, supplemented or otherwise modified from time to time, the
“Credit
Agreement”), 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”), as Borrowers, the Lenders party thereto
and ▇▇▇▇▇ Fargo Bank, National Association, as Administrative
Agent. Capitalized terms used herein and not defined herein shall
have the meanings assigned thereto in the Credit
Agreement.
1. The
Borrower Agent hereby requests that the Lenders make [a Revolving
Credit Loan][a Swingline Loan][the Initial Term Loan][an
Incremental Term Loan] to the [Parent Borrower][Cayman
Borrower]4 in the aggregate principal amount of
$___________. (Complete with an
amount in accordance with Section
2.3, 2.7
or 2.9
of the Credit Agreement, as
applicable.)
2. The
Borrower Agent hereby requests that such Loan be made on the
following Business Day: _____________________. (Complete with a Business Day in accordance
with Section 2.3
of the Credit Agreement for Revolving
Credit Loans or Swingline Loans, Section 2.9(a)
of the Credit Agreement for the
Initial Term Loan or Section 2.7 for any Incremental Term
Loans).
3. The
Borrower Agent hereby requests that such Loan bear interest at the
following interest rate, plus the Applicable Margin, as
set forth below:
-120-
4. The
aggregate principal amount of all Loans and L/C Obligations
outstanding as of the date hereof (including the Loan(s) requested
herein) does not exceed the maximum amount permitted to be
outstanding pursuant to the terms of the Credit
Agreement.
5. All
of the conditions applicable to the Loan requested herein as set
forth in Section 5.2 of the Credit Agreement have been satisfied as
of the date hereof and will remain satisfied to the date of such
Loan.
[Signature
Page Follows]
-121-
IN
WITNESS WHEREOF, the undersigned has executed this Notice of
Borrowing as of the day and year first written above.
|
UBIQUITI
NETWORKS, INC., as Borrower Agent
|
|
|
|
|
|
By:
|
|
Name:
|
|
Title:
|
-122-
EXHIBIT C
to
Second
Amended and Restated Credit Agreement
dated
as of January 17, 2018
by and
among
Ubiquiti
Networks, Inc.,
and
Ubiquiti
International Holding Company Limited,
as
Borrowers,
the
lenders party thereto,
as
Lenders,
and
▇▇▇▇▇
Fargo Bank, National Association,
as
Administrative Agent
FORM OF NOTICE OF ACCOUNT DESIGNATION
-123-
NOTICE OF ACCOUNT DESIGNATION
Dated
as of: _________
▇▇▇▇▇
Fargo Bank, National Association,
as
Administrative Agent
MAC D
1109-019
1525
West ▇.▇. ▇▇▇▇▇▇ Blvd.
Charlotte,
North Carolina 28262
Attention:
Syndication Agency Services
Ladies
and Gentlemen:
This
Notice of Account Designation is delivered to you pursuant to
Section 2.3(b) of
the Second Amended and Restated Credit Agreement, dated as of
January 17, 2018 (as may be amended, restated, supplemented or
otherwise modified from time to time, the “Credit Agreement”), 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”), as
Borrowers, the Lenders party thereto and ▇▇▇▇▇ Fargo Bank, National
Association, as Administrative Agent. Capitalized terms used herein
and not defined herein shall have the meanings assigned thereto in
the Credit Agreement.
1. The
Administrative Agent is hereby authorized to disburse all Loan
proceeds payable to each Borrower into the following account of
such Borrower, as applicable:
Parent Borrower:
____________________________
Bank
Name: ____________
ABA
Routing Number: _________
Account
Number: _____________
Cayman Borrower:
____________________________
Bank
Name: ____________
ABA
Routing Number: _________
Account
Number: _____________
2. This
authorization shall remain in effect until revoked or until a
subsequent Notice of Account Designation is provided to the
Administrative Agent.
[Signature
Page Follows]
-124-
IN
WITNESS WHEREOF, the undersigned has executed this Notice of
Account Designation as of the day and year first written
above.
|
UBIQUITI
NETWORKS, INC., as Borrower Agent
|
|
|
|
|
|
By:
|
|
Name:
|
|
Title:
|
|
UBIQUITI
INTERNATIONAL HOLDING COMPANY LIMITED
|
|
|
|
|
|
By:
|
|
Name:
|
|
Title:
|
-125-
EXHIBIT D
to
Second
Amended and Restated Credit Agreement
dated
as of January 17, 2018
by and
among
Ubiquiti
Networks, Inc.,
and
Ubiquiti
International Holding Company Limited,
as
Borrowers,
the
lenders party thereto,
as
Lenders,
and
▇▇▇▇▇
Fargo Bank, National Association,
as
Administrative Agent
FORM OF NOTICE OF PREPAYMENT
-126-
NOTICE OF PREPAYMENT
Dated
as of: _____________
▇▇▇▇▇
Fargo Bank, National Association,
as
Administrative Agent
MAC D
1109-019
1525
West ▇.▇. ▇▇▇▇▇▇ Blvd.
Charlotte,
North Carolina 28262
Attention:
Syndication Agency Services
Ladies
and Gentlemen:
This Notice of Prepayment is delivered to you
pursuant to Section
[2.4(c)][2.11(a)][2.11(b)(v)] of the Second Amended and Restated Credit
Agreement, dated as of January 17, 2018 (as may be amended,
restated, supplemented or otherwise modified from time to time, the
“Credit
Agreement”), 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”), as
Borrowers, the Lenders party thereto and ▇▇▇▇▇ Fargo Bank, National
Association, as Administrative Agent. Capitalized terms used herein
and not defined herein shall have the meanings assigned thereto in
the Credit Agreement.
1. The
[Parent Borrower][Cayman Borrower] hereby provides notice to the
Administrative Agent that it shall repay the following [Base Rate Loans] and/or [LIBOR Rate Loans]: _______________. (Complete with amount(s) in accordance
with Section 2.4
or 2.11
of the Credit
Agreement.)
2. The
Loan(s) to be prepaid consist of: [check each applicable box]
a
Swingline Loan
a
Revolving Credit Loan
the
Initial Term Loan
an
Incremental Term Loan
3. The
[Parent Borrower][Cayman Borrower] shall repay the above-referenced
Loan(s) on the following Business Day: _______________.
(Complete with a date no earlier than
(i) the same Business Day as of the date of this Notice of
Prepayment with respect to any Swingline Loan or Base Rate Loan and
(ii) three (3) Business Days subsequent to date of this Notice of
Prepayment with respect to any LIBOR Rate
Loan.)
[Signature
Page Follows]
-127-
IN
WITNESS WHEREOF, the undersigned has executed this Notice of
Prepayment as of the day and year first written above.
|
UBIQUITI
NETWORKS, INC., as Borrower Agent
|
|
|
|
|
|
By:
|
|
Name:
|
|
Title:
|
-128-
EXHIBIT E
to
Second
Amended and Restated Credit Agreement
dated
as of January 17, 2018
by and
among
Ubiquiti
Networks, Inc.,
and
Ubiquiti
International Holding Company Limited,
as
Borrowers,
the
lenders party thereto,
as
Lenders,
and
▇▇▇▇▇
Fargo Bank, National Association,
as
Administrative Agent
FORM OF NOTICE OF CONVERSION/CONTINUATION
-129-
NOTICE OF CONVERSION/CONTINUATION
Dated
as of: _____________
▇▇▇▇▇
Fargo Bank, National Association,
as
Administrative Agent
MAC D
1109-019
1525
West ▇.▇. ▇▇▇▇▇▇ Blvd.
Charlotte,
North Carolina 28262
Attention:
Syndication Agency Services
Ladies
and Gentlemen:
This
irrevocable Notice of Conversion/Continuation (this
“Notice”) is delivered to
you pursuant to Section
4.2 of the Second Amended and Restated Credit Agreement,
dated as of January 17, 2018 (as may be amended, restated,
supplemented or otherwise modified from time to time, the
“Credit
Agreement”), 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”), as Borrowers, the Lenders party thereto
and ▇▇▇▇▇ Fargo Bank, National Association, as Administrative
Agent. Capitalized terms used herein and not defined herein shall
have the meanings assigned thereto in the Credit
Agreement.
1. The
Loan to which this Notice relates is [a Revolving Credit Loan] [the
Initial Term Loan] [an Incremental Term Loan] of the [Parent
Borrower][Cayman Borrower].
2. This
Notice is submitted for the purpose of: (Check one and complete
applicable information in accordance with the Credit
Agreement.)
Converting all or a portion of a Base Rate Loan into a LIBOR Rate
Loan
Outstanding
principal balance: $______________
Principal amount to
be converted: $______________
Requested effective
date of conversion:_______________
Requested new
Interest Period: _______________
-130-
Converting all or a portion of a LIBOR Rate Loan into a Base Rate
Loan
Outstanding
principal balance: $______________
Principal amount to
be converted: $______________
Last
day of the current Interest
Period: _______________
Requested effective
date of conversion:_______________
Continuing all or a portion of a LIBOR Rate Loan as a LIBOR Rate
Loan
Outstanding
principal balance: $______________
Principal amount to
be continued: $______________
Last
day of the current Interest
Period: _______________
Requested effective
date of continuation:_______________
Requested new
Interest Period: _______________
3. The
aggregate principal amount of all Loans and L/C Obligations
outstanding as of the date hereof does not exceed the maximum
amount permitted to be outstanding pursuant to the terms of the
Credit Agreement.
4. All
of the conditions applicable to the conversion or continuation of a
Loan requested herein as set forth in the Credit Agreement have
been satisfied or waived as of the date hereof and will remain
satisfied or waived to the date of such conversion or
continuation.
[Signature
Page Follows]
-131-
IN
WITNESS WHEREOF, the undersigned has executed this Notice of
Conversion/Continuation as of the day and year first written
above.
|
UBIQUITI
NETWORKS, INC., as Borrower Agent
|
|
|
|
|
|
By:
|
|
Name:
|
|
Title:
|
-132-
EXHIBIT F
to
Second
Amended and Restated Credit Agreement
dated
as of January 17, 2018
by and
among
Ubiquiti
Networks, Inc.,
and
Ubiquiti
International Holding Company Limited,
as
Borrowers,
the
lenders party thereto,
as
Lenders,
and
▇▇▇▇▇
Fargo Bank, National Association,
as
Administrative Agent
FORM OF OFFICER’S COMPLIANCE CERTIFICATE
-133-
OFFICER’S COMPLIANCE CERTIFICATE
Dated
as of: _____________
The
undersigned, not individually, but solely on behalf of, and in his
capacity as the [___________] of Ubiquiti Networks, Inc., a
Delaware corporation (the “Parent Borrower”), hereby
certifies to the Administrative Agent and the Lenders, each as
defined in the Credit Agreement referred to below, as follows, as
of the date hereof:
1. This
certificate is delivered to you pursuant to Section 7.2(a) of the Second
Amended and Restated Credit Agreement, dated as of January 17, 2018
(as may be amended, restated, supplemented or otherwise modified
from time to time, the “Credit Agreement”), by
and among the Parent Borrower and Ubiquiti International Holding
Company Limited, an exempted company incorporated under the laws of
the Cayman Islands (the “Cayman Borrower”), as
Borrowers, the Lenders party thereto and ▇▇▇▇▇ Fargo Bank, National
Association, as Administrative Agent. Capitalized terms used herein
and not defined herein shall have the meanings assigned thereto in
the Credit Agreement.
2. I
have reviewed the financial statements of the Parent Borrower and
its Subsidiaries dated as of _______________ and for the
_______________ period[s] then ended and such statements fairly
present in all material respects the financial condition of the
Parent Borrower and its Subsidiaries as of the dates indicated and
the results of their operations and cash flows for the period[s]
indicated.
3. I
have reviewed the terms of the Credit Agreement, and the related
Loan Documents and have made, or caused to be made under my
supervision, a review in reasonable detail of the transactions and
the condition of the Parent Borrower and its Subsidiaries during
the accounting period covered by the financial statements referred
to in Paragraph 2
above. Such review has not disclosed the existence of any condition
or event that constitutes a Default or an Event of Default, nor do
I have any knowledge of the existence of any such condition or
event as at the date of this certificate [except, if such condition or event existed or
exists, describe the nature and period of existence thereof and
what action the Parent Borrower and/or its applicable Subsidiaries
has taken, is taking and proposes to take with respect
thereto].
4. As
of the date of this certificate, the calculations determining the
Consolidated Total Leverage Ratio, Liquidity, Capital Expenditures
and the Applicable Margin are set forth on Schedules 1 and 2 (in each case, as of the
“Statement
Date” set forth therein), the Parent Borrower and its
Subsidiaries are in compliance with the financial covenants
contained in Sections
8.12 and 8.13 of the Credit Agreement as
of the Statement Date reflected in such schedules.
5. [Attached
as Schedule 3
hereto is a list of all Foreign Subsidiaries that are not Material
Foreign Subsidiaries as of the date of this certificate and
calculations showing compliance with the definition of Material
Foreign Subsidiary and Section 7.14(d) of the Credit
Agreement.]8
[Signature
Page Follows]
-134-
IN
WITNESS WHEREOF, the undersigned has executed this Officer’s
Compliance Certificate as of the day and year first written
above.
|
UBIQUITI
NETWORKS, INC.
|
|
|
|
|
|
By:
|
|
Name:
|
|
Title:
|
-135-
Schedule
1
to
Officer’s Compliance Certificate
For the Quarter/Year ended ______________________ (the
“Statement
Date”)
A.
Section 8.12 - Maximum Capital Expenditures
(I)
Aggregate amount of all Capital Expenditures9
actually
made in
the [portion of the]10 Fiscal Year ending
on the
Statement
Date:
$__________
(II)
The stated maximum permitted amount of Capital
Expenditures for
such Fiscal
Year:
$ [75,000,000]11
[100,000,000]
(III)
In
Compliance?
B.
Section 8.13(a) - Maximum Consolidated Total Leverage Ratio and
Applicable Margin
(I)
Consolidated Total Indebtedness as of the Statement
Date:
(II)
Consolidated EBITDA for
the period of four (4) consecutive
fiscal
quarters ending on or immediately prior to the
Statement
Date (see
Schedule
2):
$__________
(III)
Line B.(I) divided
by Line
B.(II)
(IV)
Maximum permitted Consolidated Total Leverage Ratio as
set
forth in
Section 8.13(a) of
the Credit
Agreement:
3.25 to 1.00
(V)
In
Compliance?
(VI)
Applicable
Margin:
9
Exclude amounts
financed with net cash proceeds received from any (a) disposition
of capital assets (to the extent permitted under the Credit
Agreement) or (b) insurance and condemnation event, in each case,
that have actually been reinvested during such period in other
capital assets.
10
Use for the first
three (3) quarterly reportings in any Fiscal Year.
11
Maximum permitted
amount of Capital Expenditures may be increased to $100,000,000 if
(1) the Consolidated Total Leverage Ratio based on the most recent
financial statements provided pursuant to Section 7.1(a) or (b), as applicable, calculated
on a pro forma basis after giving effect to such Capital
Expenditures, does not exceed 3.00 to 1.00 and (2) no Default or
Event of Default exists or would result therefrom.
-136-
-137-
C.
Section 8.13(b) - Minimum Liquidity
(I) Unrestricted
cash and Cash Equivalents of the Credit
Parties:
$__________
(II)
Principal amount that the Borrowers are permitted to draw
under
the Revolving
Credit Facility (not to exceed
$50,000,000):
$__________
(III)
Line C.(I) plus
Line
C.(II):
(IV)
Minimum permitted Liquidity as set forth in
Section 8.13(b) of the Credit
Agreement:
$250,000,000
(V)
In
Compliance?
-138-
Schedule
2
to
Officer’s Compliance Certificate
|
|
Consolidated EBITDA
|
Quarter 1
ended
__/__/__
|
Quarter 2
ended
__/__/__
|
Quarter 3
ended
__/__/__
|
Quarter 4
ended
__/__/__
|
Total
(Quarters 1-4)
|
|
(1)
|
Consolidated Net Income for such period
|
|
|
|
|
|
|
(2)
|
The following amounts, without duplication, to the extent deducted
in determining Consolidated Net Income for such
period:
|
|
|
|
|
|
|
|
(a) income and
franchise taxes
|
|
|
|
|
|
|
|
(b) Consolidated Interest Expense
|
|
|
|
|
|
|
|
(c) amortization
|
|
|
|
|
|
|
|
(d) depreciation
|
|
|
|
|
|
|
|
(e) other non-cash charges (except to
the extent that such non-cash charges are reserved for cash charges
to be taken in the future)
|
|
|
|
|
|
|
|
(f) extraordinary losses (excluding
extraordinary losses from discontinued operations)
|
|
|
|
|
|
|
|
(g) non-cash
compensation charges, including any such charges arising from stock
options, restricted stock grants or other equity-incentive
programs
|
|
|
|
|
|
|
(3)
|
Line (2)(a) plus
Line (2)(b) plus Line
(2)(c) plus Line (2)(d) plus Line
(2)(e) plus Line (2)(f) plus Line
(2)(g)
|
|
|
|
|
|
-139-
|
(4)
|
The following amounts, without duplication, to the extent included
in determining Consolidated Net Income for such
period:
|
|
|
|
|
|
|
|
(a) interest
income
|
|
|
|
|
|
|
|
(b) any extraordinary gains
|
|
|
|
|
|
|
|
(c)
non-cash gains or non-cash items increasing Consolidated Net
Income
|
|
|
|
|
|
|
(5)
|
Line (4)(a) plus
Line (4)(b) plus Line
(4)(c)
|
|
|
|
|
|
|
(6)
|
[Pro Forma Basis
Adjustments to Consolidated EBITDA, if applicable12]
|
|
|
|
|
|
|
(7)
|
Totals
(Line (1) plus Line (3) less Line (5) plus or minus, as applicable,
Line (6))
|
|
|
|
|
|
(a) excluding
all income statement items (whether positive or negative)
attributable to the Property or Person that are subject to any such
Specified Disposition made during such period;
(b) including
all income statement items (whether positive or negative)
attributable to the Property or Person acquired pursuant to any
such Permitted Acquisition (provided that such income statement
items to be included are reflected in financial statements or other
financial data reasonably acceptable to the Administrative Agent
and based upon reasonable assumptions and calculations which are
expected to have a continuous impact); and
(c) without
duplication of any other adjustments already included in clause (b)
above or in the calculation of Consolidated EBITDA for such period,
after giving effect to the pro forma adjustments with respect to
such transaction;
provided that in
each case any such pro forma adjustments:
(i) are reasonably
expected to be realized within twelve (12) months of such
transaction as set forth in reasonable detail on a certificate of a
Responsible Officer of the Parent Borrower delivered to the
Administrative Agent and
(ii) are calculated
on a basis consistent with GAAP and Regulation S-X of the Exchange
Act of 1934 (including with respect to pro forma adjustments for
public company costs in connection with the Acquisition of any
public company) and
(iii) represent
less than 10% of Consolidated EBITDA (determined without giving
effect to this clause (iii)).
“Specified
Disposition” means any disposition of all or substantially
all of the assets or Equity Interests of any Subsidiary of the
Borrower or any division, business unit, product line or line of
business.
“Specified
Transaction” means (x) any Specified Disposition and
(y) any Permitted Acquisition.
-140-
Schedule
3
to
Officer’s Compliance Certificate
List of Non-Material Foreign Subsidiaries
|
Subsidiary
|
Assets of Subsidiary
|
Consolidated Assets of Parent and its Subsidiaries
|
% of Consolidated Assets
|
Revenue of Subsidiary
|
Consolidated Revenue of Parent and its Subsidiaries
|
% of Consolidated Revenue
|
|
Ubiquiti
Technical Services Private Limited
|
|
|
|
|
|
|
|
Ubiquiti
Networks Europe
|
|
|
|
|
|
|
|
Ubiquiti
Networks (Poland) spótka z ograniczonq
odpowiedzialnościq w
organizacji
|
|
|
|
|
|
|
|
Ubiquiti
Networks (Latvia) SIA
|
|
|
|
|
|
|
|
Ubiquiti
Networks Consulting (Shanghai) Co., Ltd.
|
|
|
|
|
|
|
|
Ubiquiti
Networks (Suzhou) Co., Ltd.
|
|
|
|
|
|
|
|
Ubiquiti
Networks Canada Inc.
|
|
|
|
|
|
|
|
Ubiquiti
Networks (Czech Republic) s.r.o
|
|
|
|
|
|
|
|
Ubiquiti
Labs Ukraine LLC
|
|
|
|
|
|
|
|
Ubiquiti
Global Energy Limited
|
|
|
|
|
|
|
-141-
EXHIBIT G
to
Second
Amended and Restated Credit Agreement
dated
as of January 17, 2018
by and
among
Ubiquiti
Networks, Inc.,
and
Ubiquiti
International Holding Company Limited,
as
Borrowers,
the
lenders party thereto,
as
Lenders,
and
▇▇▇▇▇
Fargo Bank, National Association,
as
Administrative Agent
FORM OF ASSIGNMENT AND ASSUMPTION
-142-
ASSIGNMENT AND ASSUMPTION
This
Assignment and Assumption (the “Assignment and
Assumption”) is dated as of the Effective Date set
forth below and is entered into by and between [INSERT NAME OF ASSIGNOR] (the
“Assignor”) and the
parties identified on the Schedules hereto and [the]
[each]13 Assignee identified on the Schedules
hereto as “Assignee” or as “Assignees”
(collectively, the “Assignees” and each, an
“Assignee”). [It is
understood and agreed that the rights and obligations of the
Assignees14 hereunder are several and not
joint.]15 Capitalized terms used but not defined
herein shall have the meanings given to them in the Second Amended
and Restated Credit Agreement identified below (as may be amended,
restated, supplemented or otherwise modified from time to time, the
“Credit
Agreement”), receipt of a copy of which is hereby
acknowledged by [the] [each] Assignee. The Standard Terms and
Conditions set forth in Annex 1 attached hereto are
hereby agreed to and incorporated herein by reference and made a
part of this Assignment and Assumption as if set forth herein in
full.
For an
agreed consideration, the Assignor hereby irrevocably sells and
assigns to the [Assignee] [respective Assignees], and [the] [each]
Assignee hereby irrevocably purchases and assumes from the
Assignor, subject to and in accordance with the Standard Terms and
Conditions and the Credit Agreement, as of the Effective Date
inserted by the Administrative Agent as contemplated below (i) all
of the Assignor’s rights and obligations in its capacity as a
Lender under the Credit Agreement and any other documents or
instruments delivered pursuant thereto to the extent related to the
amount and percentage interest identified below of all of such
outstanding rights and obligations of the Assignor under the
respective facilities identified below (including without
limitation any letters of credit, guarantees, and swingline loans
included in such facilities) and (ii) to the extent permitted to be
assigned under Applicable Law, all claims, suits, causes of action
and any other right of the Assignor (in its capacity as a Lender)
against any Person, whetherknown or unknown, arising under or in
connection with the Credit Agreement, any other documents or
instruments delivered pursuant thereto or the loan transactions
governed thereby or in any way based on or related to any of the
foregoing, including, but not limited to, contract claims, tort
claims, malpractice claims, statutory claims and all other claims
at law or in equity related to the rights and obligations sold and
assigned pursuant to clause (i) above (the rights and obligations
sold and assigned to[the] [any] Assignee pursuant to clauses (i)
and (ii) above being referred to herein collectively as, [the] [an]
“Assigned
Interest”). Each such sale and assignment is without
recourse to the Assignor and, except as expressly provided in this
Assignment and Assumption, without representation or warranty by
the Assignor.
1. Assignor: [INSERT
NAME OF ASSIGNOR]
2. Assignee(s): See
Schedules attached hereto
3. Borrowers: Ubiquiti
Networks, Inc. and Ubiquiti International Holding Company
Limited
4. Administrative
Agent: ▇▇▇▇▇ Fargo Bank, National Association, as the
administrative agent under the Credit Agreement
-143-
5. Credit
Agreement: The Second Amended and Restated Credit Agreement,
dated as of January 17, 2018, by and among Ubiquiti Networks, Inc.,
a Delaware corporation and Ubiquiti International Holding Company
Limited, an exempted company incorporated under the laws of the
Cayman Islands, as Borrowers, the Lenders party thereto and ▇▇▇▇▇
Fargo Bank, National Association, as Administrative Agent (as
amended, restated, supplemented or otherwise modified)
6. Assigned
Interest: See Schedules
attached hereto
[7. Trade
Date: ______________]16
[Remainder
of Page Intentionally Left Blank]
-144-
Effective
Date: _____________ ___, 2____ [TO
BE INSERTED BY THE ADMINISTRATIVE AGENT AND WHICH SHALL BE THE
EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
THEREFOR]
The
terms set forth in this Assignment and Assumption are hereby agreed
to:
|
ASSIGNOR
|
|
[NAME OF ASSIGNOR]
|
|
|
|
|
|
|
|
By:
|
|
Name:
|
|
Title:
|
|
|
|
|
|
ASSIGNEES
|
|
|
|
See Schedules attached hereto
|
-145-
[Consented
to and]17 Accepted:
▇▇▇▇▇
FARGO BANK, NATIONAL ASSOCIATION,
as
Administrative Agent, Issuing Lender and Swingline
Lender
By:_________________________________
Name:
Title:
[Consented
to:]18
UBIQUITI
NETWORKS, INC.,
as
Borrower Agent
By:________________________________
Name:
Title:
-146-
SCHEDULE 1
To
Assignment and Assumption
By its
execution of this Schedule, the Assignee identified on the
signature block below agrees to the terms set forth in the attached
Assignment and Assumption.
Assigned
Interests:
|
Facility
Assigned19
|
Aggregate
Amount of Commitment/ Loans for all Lenders20
|
Amount
of Commitment/Loans Assigned21
|
Percentage
Assigned of Commitment/Loans22
|
CUSIP
Number
|
|
|
$
|
$
|
%
|
|
|
|
$
|
$
|
%
|
|
|
|
$
|
$
|
%
|
|
[NAME OF ASSIGNEE]23
[and is
an Affiliate of [identify
Lender]24]
By:______________________________
Title:
-147-
ANNEX 1
to
Assignment and Assumption
STANDARD
TERMS AND CONDITIONS FOR
ASSIGNMENT
AND ASSUMPTION
1. Representations
and Warranties.
1.1 Assignor.
The Assignor (a) represents and warrants that (i) it is the legal
and beneficial owner of [the] [the relevant] Assigned Interest,
(ii) [the] [such] Assigned Interest is free and clear of any lien,
encumbrance or other adverse claim, (iii) it has full power and
authority, and has taken all action necessary, to execute and
deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby and (iv) it is [not] a Defaulting
Lender; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection
with the Credit Agreement or any other Loan Document, (ii) the
execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Loan Documents or any collateral
thereunder, (iii) the financial condition of the Parent Borrower,
any of its Subsidiaries or Affiliates or any other Person obligated
in respect of any Loan Document or (iv) the performance or
observance by the Parent Borrower, any of its Subsidiaries or
Affiliates or any other Person of any of their respective
obligations under any Loan Document.
1.2. Assignee[s].
[The] [Each] Assignee (a) represents and warrants that (i) it has
full power and authority, and has taken all action necessary, to
execute and deliver this Assignment and Assumption and to
consummate the transactions contemplated hereby and to become a
Lender under the Credit Agreement, (ii) it meets the requirements
of an Eligible Assignee under the Credit Agreement (subject to such
consents, if any, as may be required under Section 11.9(b)(iii) of the
Credit Agreement), (iii) from and after the Effective Date, it
shall be bound by the provisions of the Credit Agreement as a
Lender thereunder and, to the extent of [the] [the relevant]
Assigned Interest, shall have the obligations of a Lender
thereunder, (iv) it is sophisticated with respect to decisions to
acquire assets of the type represented by the Assigned Interest and
either it, or the Person exercising discretion in making its
decision to acquire [the] [such] Assigned Interest, is experienced
in acquiring assets of such type, (v) it has received a copy of the
Credit Agreement, and has received or has been accorded the
opportunity to receive copies of the most recent financial
statements delivered pursuant to Section 7.1 thereof, as
applicable, and such other documents and information as it deems
appropriate to make its own credit analysis and decision to enter
into this Assignment and Assumption and to purchase [the] [such]
Assigned Interest, (vi) it has, independently and without reliance
upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Assignment and
Assumption and to purchase [the] [such] Assigned Interest, and
(vii) if it is a Foreign Lender, attached to the Assignment and
Assumption is any documentation required to be delivered by it
pursuant to the terms of the Credit Agreement, duly completed and
executed by [the] [such] Assignee; and (b) agrees that (i) it will,
independently and without reliance upon the Administrative Agent,
[the] [any] Assignor or any other Lender, and based on such
documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking
action under the Loan Documents, and (ii) it will perform in
accordance with their terms all of the obligations which by the
terms of the Loan Documents are required to be performed by it as a
Lender.
-148-
2. Payments.
From and after the Effective Date, the Administrative Agent shall
make all payments in respect of [the] [each] Assigned Interest
(including payments of principal, interest, fees and other amounts)
to [the] [the relevant] Assignor for amounts which have accrued to
but excluding the Effective Date and to [the] [the relevant]
Assignee for amounts which have accrued from and after the
Effective Date.
3. General
Provisions. This Assignment and Assumption shall be binding
upon, and inure to the benefit of, the parties hereto and their
respective successors and assigns. This Assignment and Assumption
may be executed in any number of counterparts, which together shall
constitute one instrument. Delivery of an executed counterpart of
asignature page of this Assignment and Assumption by telecopy shall
be effective as delivery of a manually executed counterpart of this
Assignment and Assumption. This Assignment and Assumption shall be
governed by, and construed in accordance with, the law of the State
of New York.
-149-
EXHIBIT H-1
to
Second
Amended and Restated Credit Agreement
dated
as of January 17, 2018
by and
among
Ubiquiti
Networks, Inc.,
and
Ubiquiti
International Holding Company Limited,
as
Borrowers,
the
lenders party thereto,
as
Lenders,
and
▇▇▇▇▇
Fargo Bank, National Association,
as
Administrative Agent
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
(NON-PARTNERSHIP FOREIGN LENDERS)
-150-
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Not Partnerships For U.S. Federal
Income Tax Purposes)
Reference is hereby made to the Second Amended and
Restated Credit Agreement, dated as of January 17, 2018 (as
may be amended, restated, supplemented or otherwise modified from
time to time, the “Credit Agreement”), 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”), as
Borrowers, the Lenders party thereto and ▇▇▇▇▇ Fargo Bank, National
Association, as Administrative Agent.
Capitalized terms used herein and not defined herein shall have the
meanings assigned thereto in the Credit
Agreement.
Pursuant to the provisions of Section 4.11
of the Credit Agreement, the
undersigned hereby certifies that (a) it is the sole record and
beneficial owner of the Loan(s) (as well as any Note(s) evidencing
such Loan(s)) in respect of which it is providing this certificate,
(b) it is not a bank within the meaning of Section 881(c)(3)(A) of
the Code, (c) it is not a ten percent (10%) shareholder of either
Borrower within the meaning of Section 881(c)(3)(B) of the Code and
(d) it is not a controlled foreign corporation related to either
Borrower as described in Section 881(c)(3)(C) of the
Code.
The
undersigned has furnished the Administrative Agent and the Borrower
Agent with a certificate of its non-U.S. Person status on IRS Form
W-8BEN-E (or any successor form). By executing this certificate,
the undersigned agrees that (a) if the information provided on this
certificate changes, the undersigned shall promptly so inform the
Borrower Agent and the Administrative Agent and (b) the undersigned
shall have at all times furnished the Borrower Agent and the
Administrative Agent with a properly completed and currently
effective certificate in either the calendar year in which each
payment is to be made to the undersigned, or in either of the two
(2) calendar years preceding such payments.
|
[NAME OF ▇▇▇▇▇▇]
|
|
|
By:
|
|
|
|
Name:
|
|
|
Title:
|
Date: ________ __, 20__
-151-
EXHIBIT H-2
to
Second
Amended and Restated Credit Agreement
dated
as of January 17, 2018
by and
among
Ubiquiti
Networks, Inc.,
and
Ubiquiti
International Holding Company Limited,
as
Borrowers,
the
lenders party thereto,
as
Lenders,
and
▇▇▇▇▇
Fargo Bank, National Association,
as
Administrative Agent
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
(NON-PARTNERSHIP FOREIGN PARTICIPANTS)
-152-
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Not Partnerships For U.S.
Federal Income Tax Purposes)
Reference is hereby made to the Second Amended and
Restated Credit Agreement, dated as of January 17, 2018 (as
may be amended, restated, supplemented or otherwise modified from
time to time, the “Credit Agreement”), 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”), as
Borrowers, the Lenders party thereto and ▇▇▇▇▇ Fargo Bank, National
Association, as Administrative Agent.
Capitalized terms used herein and not defined herein shall have the
meanings assigned thereto in the Credit
Agreement.
Pursuant to the provisions of Section 4.11
of the Credit Agreement, the
undersigned hereby certifies that (a) it is the sole record and
beneficial owner of the participation in respect of which it is
providing this certificate, (b) it is not a bank within the meaning
of Section 881(c)(3)(A) of the Code, (c) it is not a ten percent
(10%) shareholder of either Borrower within the meaning of Section
881(c)(3)(B) of the Code and (d) it is not a controlled foreign
corporation related to either Borrower as described in Section
881(c)(3)(C) of the Code.
The
undersigned has furnished its participating Lender with a
certificate of its non-U.S. Person status on IRS Form W-8BEN-E (or
any successor form). By executing this certificate, the undersigned
agrees that (a) if the information provided on this certificate
changes, the undersigned shall promptly so inform such Lender in
writing and (b) the undersigned shall have at all times furnished
such Lender with a properly completed and currently effective
certificate in either the calendar year in which each payment is to
be made to the undersigned, or in either of the two (2) calendar
years preceding such payments.
|
[NAME OF PARTICIPANT]
|
|
|
By:
|
|
|
|
Name:
|
|
|
Title:
|
Date: ________ __, 20__
-153-
EXHIBIT H-3
to
Second
Amended and Restated Credit Agreement
dated
as of January 17, 2018
by and
among
Ubiquiti
Networks, Inc.,
and
Ubiquiti
International Holding Company Limited,
as
Borrowers,
the
lenders party thereto,
as
Lenders,
and
▇▇▇▇▇
Fargo Bank, National Association,
as
Administrative Agent
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
(FOREIGN PARTICIPANT PARTNERSHIPS)
-154-
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Partnerships For U.S. Federal
Income Tax Purposes)
Reference is hereby made to the Second Amended and
Restated Credit Agreement, dated as of January 17, 2018 (as
may be amended, restated, supplemented or otherwise modified from
time to time, the “Credit Agreement”), 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”), as
Borrowers, the Lenders party thereto and ▇▇▇▇▇ Fargo Bank, National
Association, as Administrative Agent.
Capitalized terms used herein and not defined herein shall have the
meanings assigned thereto in the Credit
Agreement.
Pursuant to the provisions of Section 4.11
of the Credit Agreement, the
undersigned hereby certifies that (a) it is the sole record owner
of the participation in respect of which it is providing this
certificate, (b) its direct or indirect partners/members are the
sole beneficial owners of such participation, (c) with respect such
participation, neither the undersigned nor any of its direct or
indirect partners/members is a bank extending credit pursuant to a
loan agreement entered into in the ordinary course of its trade or
business within the meaning of Section 881(c)(3)(A) of the Code,
(d) none of its direct or indirect partners/members is a ten
percent (10%) shareholder of either Borrower within the meaning of
Section 881(c)(3)(B) of the Code and (e) none of its direct or
indirect partners/members is a controlled foreign corporation
related to either Borrower as described in Section 881(c)(3)(C) of
the Code.
The
undersigned has furnished its participating Lender with IRS Form
W-8IMY accompanied by one of the following forms from each of its
partners/members that is claiming the portfolio interest exemption:
(a) an IRS Form W-8BEN-E (or any successor form), or (b) an IRS
Form W-8IMY accompanied by an IRS Form W-8BEN-E (or any successor
form), from each of such partner’s/member’s beneficial
owners that is claiming the portfolio interest exemption. By
executing this certificate, the undersigned agrees that (i) if the
information provided on this certificate changes, the undersigned
shall promptly so inform such Lender and (ii) the undersigned shall
have at all times furnished such Lender with a properly completed
and currently effective certificate in either the calendar year in
which each payment is to be made to the undersigned, or in either
of the two (2) calendar years preceding such payments.
|
[NAME OF PARTICIPANT]
|
|
|
By:
|
|
|
|
Name:
|
|
|
Title:
|
Date:
________ __, 20__
-155-
EXHIBIT H-4
to
Second
Amended and Restated Credit Agreement
dated
as of January 17, 2018
by and
among
Ubiquiti
Networks, Inc.,
and
Ubiquiti
International Holding Company Limited,
as
Borrowers,
the
lenders party thereto,
as
Lenders,
and
▇▇▇▇▇
Fargo Bank, National Association,
as
Administrative Agent
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
(FOREIGN LENDER PARTNERSHIPS)
-156-
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Partnerships For U.S. Federal Income
Tax Purposes)
Reference is hereby made to the Second Amended and
Restated Credit Agreement, dated as of January 17, 2018 (as
may be amended, restated, supplemented or otherwise modified from
time to time, the “Credit Agreement”), 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”), as
Borrowers, the Lenders party thereto and ▇▇▇▇▇ Fargo Bank, National
Association, as Administrative Agent.
Capitalized terms used herein and not defined herein shall have the
meanings assigned thereto in the Credit
Agreement.
Pursuant to the provisions of Section 4.11
of the Credit Agreement, the
undersigned hereby certifies that (a) it is the sole record owner
of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in
respect of which it is providing this certificate, (b) its direct
or indirect partners/members are the sole beneficial owners of such
Loan(s) (as well as any Note(s) evidencing such Loan(s)), (c) with
respect to the extension of credit pursuant to this Credit
Agreement or any other Loan Document, neither the undersigned nor
any of its direct or indirect partners/members is a bank extending
credit pursuant to a loan agreement entered into in the ordinary
course of its trade or business within the meaning of Section
881(c)(3)(A) of the Code, (d) none of its direct or indirect
partners/members is a ten percent (10%) shareholder of either
Borrower within the meaning of Section 881(c)(3)(B) of the Code and
(e) none of its direct or indirect partners/members is a controlled
foreign corporation related to either Borrower as described in
Section 881(c)(3)(C) of the Code.
The
undersigned has furnished the Administrative Agent and the Borrower
Agent with IRS Form W-8IMY accompanied by one of the following
forms from each of its partners/members that is claiming the
portfolio interest exemption: (a) an IRS Form W-8BEN-E (or any
successor form), or (b) an IRS Form W-8IMY accompanied by an IRS
Form W-8BEN-E (or any successor form), from each of such
partner’s/member’s beneficial owners that is claiming
the portfolio interest exemption. By executing this certificate,
the undersigned agrees that (i) if the information provided on this
certificate changes, the undersigned shall promptly so inform the
Borrower Agent and the Administrative Agent and (ii) the
undersigned shall have at all times furnished the Borrower Agent
and the Administrative Agent with a properly completed and
currently effective certificate in either the calendar year in
which each payment is to be made to the undersigned, or in either
of the two (2) calendar years preceding such payments.
|
[NAME OF ▇▇▇▇▇▇]
|
|
|
By:
|
|
|
|
Name:
|
|
|
Title:
|
Date:
________ __, 20__
-157-