EX-10.45 2 mime-ex1045_284.htm EX-10.45 mime-ex1045_284.htm

 

Exhibit 10.45

Execution Version

 

AMENDMENT NO. 1

TO

CREDIT AGREEMENT

 

THIS AMENDMENT NO. 1 TO CREDIT AGREEMENT (this Amendment”) is made as of June 12, 2020, by and among MIMECAST LIMITED, a public company incorporated in Jersey with registration number 119119 and having its registered office at 22 Grenville Street, St Helier, Jersey JE4 8PX (the Borrower), JPMORGAN CHASE BANK, N.A. as the Administrative Agent (the Administrative Agent), the Issuing Banks and the Required Lenders as of the date hereof. Unless otherwise defined herein, capitalized terms used herein shall have the meanings ascribed to them in the Credit Agreement described below.

 

WITNESSETH:

 

WHEREAS, the Borrower, the Lenders and Issuing Banks from time to time party thereto, and the Administrative Agent are parties to that certain Credit Agreement dated as of July 23, 2018 (as amended, modified, restated or otherwise supplemented from time to time, the Credit Agreement”, and as further amended by this Amendment, the Amended Credit Agreement”);

 

WHEREAS, the Borrower has requested that the Lenders, Issuing Banks and the Administrative Agent agree to amend certain provisions of the Credit Agreement;

 

WHEREAS, Section 9.02(b) of the Credit Agreement permits the Credit Agreement to be amended with the consent of the Borrower, the Administrative Agent, each Issuing Bank and the Required Lenders; and

 

WHEREAS, subject to the satisfaction of the conditions set forth herein, the Administrative Agent, the Issuing Banks and the Required Lenders signatory hereto are willing to agree to amend certain provisions of the Credit Agreement, all on the terms and subject to the conditions set forth in this Amendment.

 

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

 

1.Acknowledgments, Affirmations and Representations and Warranties.

 

Each Loan Party acknowledges, affirms, represents and warrants that:

 

(i)The Borrower has the corporate power and authority to enter into, and has taken all necessary corporate action to authorize, this Amendment and the transactions contemplated hereby.

 

(ii)Each Guarantor has the corporate and/or company power and authority to enter into, and has taken all necessary corporate or company action to authorize, this Amendment and the transactions contemplated hereby.

 

(iii)No material consent, approval, authorization or order of, or filing, registration or qualification with, any Governmental Authority is required in connection with the execution, delivery or performance by each Loan Party of this Amendment.

 

(iv)All representations and warranties of the Borrower and each Loan Party set forth in the Credit Agreement and the other Loan Documents are true and correct in all material respects (or, with respect to representations and warranties already qualified by concepts of materiality, in all respects) on and as of the date hereof (except for representations and warranties that expressly speak as of a specific date, then on and as of such specific date).

 

(v)No Default or Event of Default has occurred and is continuing under the Credit Agreement or any of the other Loan Documents

 


 

 

2.Amendments to Credit Agreement. Subject to the terms and conditions set forth herein the Credit Agreement shall be amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in Exhibit A hereto.

 

3.Conditions to Effectiveness. This Amendment shall become effective as of the first date (the “Amendment No. 1 Effective Date”) on which the following conditions have been satisfied or waived in accordance with the terms thereof:

 

(a) The Administrative Agent shall have received from the Borrower and each Guarantor, from each Issuing Bank and from each Required Lender (A) a counterpart of this Amendment, signed on behalf of such Person, or (B) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Amendment) that such Person has signed a counterpart of this Amendment.

 

(b) The representations and warranties in Section 1 above shall be true and correct in all material respects as of the Amendment No. 1 Effective Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided further that, any representation and warranty that is qualified as to materiality,” Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates.

 

(c) The Loan Parties agree that they will promptly pay all reasonable and documented legal and professional fees and expenses to the extent required to be reimbursed by the Borrower under the Credit Agreement (including all reasonable and documented fees and expenses of Cahill Gordon & Reindel LLP, as counsel to the Administrative Agent) incurred by the Administrative Agent in connection with this Amendment and the transactions contemplated hereby.

 

4.Reaffirmation; No Waiver. Each Loan Party, as maker, debtor, assignor, obligor, guarantor, or in other similar capacity in which it incurs obligations to the Administrative Agent, the Issuing Bank or the Lenders under any of the Loan Documents, hereby ratifies and reaffirms all of its respective payment and performance obligations, contingent or otherwise, under each of the Loan Documents to which it is a party and, to the extent it has granted liens or mortgages on or security interests in any of its properties pursuant to any Collateral Document as security for the Secured Obligations, hereby ratifies and reaffirms such grant of liens, mortgages and security interests and confirms and agrees that with respect to liens and security interests on any right, title and interest of such Loan Party in any personal property granted pursuant to a security agreement, pledge agreement or otherwise, such liens and security interests hereafter secure all of the Secured Obligations, in each case as if each reference in such Collateral Document to the obligations secured thereby are construed to hereafter mean and refer to such Secured Obligations (including, without limitation, with respect to all Loans and all LC Exposure) and including under the Credit Agreement and other Loan Documents, as amended by this Amendment. Each Loan Guarantor acknowledges, affirms and agrees that all Secured Obligations to the Administrative Agent, the Issuing Bank, the Lenders and the Secured Parties have been guaranteed and continue to be guaranteed by such Loan Guarantor pursuant to the terms of the Amended Credit Agreement. Each Loan Party acknowledges and reaffirms that it is responsible for the observance and full performance of the Secured Obligations and that each of the Loan Documents to which it is a party remains in full force and effect, continues to apply to the Secured Obligations, as amended by this Amendment, and are hereby ratified and confirmed in all respects. The execution of this Amendment shall not operate as a novation, or waiver of any right, power or remedy of the Administrative Agent, the Issuing Bank, the Lenders or Secured Parties, or waiver of any provision of any of the Loan Documents. The Loan Parties agree and acknowledge that this Amendment shall be deemed a Loan Document. All references in the Loan Documents to the Credit Agreement shall be deemed to be references to the Amended Credit Agreement.

 

5.Successors and Assigns. This Amendment shall be binding upon each of the Loan Parties and upon its respective successors and assigns and shall inure to the benefit of the Administrative Agent, the Lenders and their respective successors and assigns. The successors and assigns of such entities shall include, without limitation, their respective receivers, trustees, or debtors-in-possession.

 


 

6.Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

 

7.Execution in Counterparts. This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page of this Amendment by facsimile, emailed pdf, or any other electronic means that reproduces an image of the actual executed signature page shall be effective as delivery of a manually executed counterpart of this Amendment. The words execution”, execute”, “signed”, signature”, and words of like import in or related to any document to be signed in connection with this Amendment and the transactions contemplated hereby shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by the Administrative Agent, 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.

 

[remainder of page intentionally left blank; signature pages follow]

 

 

 


DocuSign Envelope ID: 22E6FC4F-DD0A-47FB-B190-00D562293FF8

 

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

 

MIMECAST LIMITED

 

 

 

 

By:

/s/ Peter Cyril Bauer

 

Name:

 

Peter Cyril Bauer

 

Title:

 

Executive Director

 

 

MIMECAST UK LIMITED

MIMECAST SERVICES LIMITED, as Guarantors

 

 

 

 

By:

/s/ Rafeal Brown

 

Name:

 

Rafeal Brown

 

Title:

 

Director

 

 

MIMECAST NORTH AMERICA, INC., as a

Guarantor

 

 

 

 

By:

/s/ Peter Cyril Bauer

 

Name:

 

Peter Cyril Bauer

 

Title:

 

President

 

 

MIMECAST OFFSHORE LIMITED, as a Guarantor

 

 

 

 

By:

/s/ Lauren Ker

 

Name:

 

Lauren Ker

 

Title:

 

Director

 

 

[Signature Page to Amendment No. 1]


DocuSign Envelope ID: A20BAD83-6DEE-4E29-872C-900A39335170

 

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

 

MIMECAST LIMITED

 

 

 

 

By:

/s/ Peter Cyril Bauer

 

Name:

 

Peter Cyril Bauer

 

Title:

 

Executive Director

 

 

MIMECAST UK LIMITED

MIMECAST SERVICES LIMITED, as Guarantors

 

 

 

 

By:

/s/ Rafeal Brown

 

Name:

 

Rafeal Brown

 

Title:

 

Director

 

 

MIMECAST NORTH AMERICA, INC., as a

Guarantor

 

 

 

 

By:

/s/ Peter Cyril Bauer

 

Name:

 

Peter Cyril Bauer

 

Title:

 

President

 

 

MIMECAST OFFSHORE LIMITED, as a Guarantor

 

 

 

 

By:

/s/ Lauren Ker

 

Name:

 

Lauren Ker

 

Title:

 

Director

 

 

 

[Signature Page to Amendment No. 1]


 

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

 

MIMECAST LIMITED

 

 

 

 

By:

/s/ Peter Cyril Bauer

 

Name:

 

Peter Cyril Bauer

 

Title:

 

Executive Director

 

 

MIMECAST UK LIMITED

MIMECAST SERVICES LIMITED, as Guarantors

 

 

 

 

By:

/s/ Rafeal Brown

 

Name:

 

Rafeal Brown

 

Title:

 

Director

 

 

MIMECAST NORTH AMERICA, INC., as a Guarantor

 

 

 

 

By:

/s/ Peter Cyril Bauer

 

Name:

 

Peter Cyril Bauer

 

Title:

 

President

 

 

MIMECAST OFFSHORE LIMITED, as a Guarantor

 

 

 

 

By:

/s/ Lauren Ker

 

Name:

 

Lauren Ker

 

Title:

 

Director

 

[Signature Page to Amendment No. 1]


 

 

 

JPMORGAN CHASE BANK, N.A., as Administrative Agent

 

 

 

 

By:

/s/ Maria Riaz

 

Name:

 

MARIA RIAZ

 

Title:

 

VICE PRESIDENT

 

 

JPMORGAN CHASE BANK, N.A., as a Lender and Issuing Bank

 

By:

/s/ Maria Riaz

 

Name:

 

MARIA RIAZ

 

Title:

 

VICE PRESIDENT

 

 

[Signature Page to Amendment No. 1]


 

 

ROYAL BANK OF CANADA as a Lender and issuing Bank

 

By:

/s/ Kamran Khan

 

Name:

 

Kamran Khan

 

Title:

 

Authorized Signatory

 

[Signature Page to Amendment No. 1]


 

 

SILICON VALLEY BANK as a Lender and issuing Bank

 

 

 

 

By:

/s/ Richard Faulkner

 

Name:

 

Richard Faulkner

 

Title:

 

Managing Director

 

 

[Signature Page to Amendment No. 1]


 

EXHIBIT A

 

 

 

 

 

 

 

 

 

 

CREDIT AGREEMENT

 

dated as of

JULY 23, 2018

Amended by Amendment No. 1 on JUNE 12, 2020

 

among

 

MIMECAST LIMITED,

as Borrower,

 

THE OTHER LOAN PARTIES PARTY HERETO,

THE LENDERS PARTY HERETO,

and

 

JPMORGAN CHASE BANK, N.A.,

as Administrative Agent

 

 

JPMORGAN CHASE BANK, N.A.

as Sole Bookrunner and Sole Lead Arranger

 

 

 

 

 

 


 

TABLE OF CONTENTS

 

Page

 

ARTICLE I.

DEFINITIONS

 

SECTION 1.01

Defined Terms

1

SECTION 1.02

Classification of Loans and Borrowings

35

SECTION 1.03

Terms Generally

35

SECTION 1.04

Accounting Terms; GAAP

35

SECTION 1.05

Status of Obligations

36

SECTION 1.06

Interest Rates

36

SECTION 1.07

Jersey Terms

36

SECTION 1.08

Pro Forma Calculations

36

SECTION 1.09

Currency Translation

37

SECTION 1.10

Rounding

38

 

ARTICLE II.

THE CREDITS

 

SECTION 2.01

Commitments

38

SECTION 2.02

Loans and Borrowings

39

SECTION 2.03

Requests for Borrowings

39

SECTION 2.04

[Reserved]

40

SECTION 2.05

[Reserved]

40

SECTION 2.06

Letters of Credit

40

SECTION 2.07

Funding of Borrowings

44

SECTION 2.08

Interest Elections

44

SECTION 2.09

Termination and Reduction of Commitments

45

SECTION 2.10

Repayment of Loans; Evidence of Debt

46

SECTION 2.11

Prepayment of Loans

47

SECTION 2.12

Fees

48

SECTION 2.13

Interest

49

SECTION 2.14

Alternate Rate of Interest

49

SECTION 2.15

Increased Costs

50

SECTION 2.16

Break Funding Payments

51

SECTION 2.17

Payments Free of Taxes

52

SECTION 2.18

Payments Generally; Allocation of Proceeds; Pro Rata Treatment; Sharing of Set-offs

57

SECTION 2.19

Mitigation Obligations; Replacement of Lenders

59

SECTION 2.20

Defaulting Lenders

59

SECTION 2.21

Expansion Option; Incremental Facilities

61

SECTION 2.22

Judgment Currency

63

 

ARTICLE III.

REPRESENTATIONS AND WARRANTIES

 

SECTION 3.01

Organization; Powers

64

SECTION 3.02

Authorization; Enforceability

64

SECTION 3.03

Governmental Approvals; No Conflicts

64

SECTION 3.04

Financial Condition; No Material Adverse Change

64

SECTION 3.05

Properties; Intellectual Property

64

SECTION 3.06

Litigation and Environmental Matters

65

SECTION 3.07

Compliance with Laws and Agreements

65

SECTION 3.08

Investment Company Status

65

SECTION 3.09

Taxes

65

SECTION 3.10

ERISA

65

SECTION 3.11

Disclosure

66

SECTION 3.12

No Default

66

SECTION 3.13

Solvency

66

- i -


 

Page

 

SECTION 3.14

Insurance

66

SECTION 3.15

Capitalization and Subsidiaries

66

SECTION 3.16

Security Interest in Collateral

66

SECTION 3.17

Employment Matters

66

SECTION 3.18

Anti-Corruption and Anti-Terrorism Laws and Sanctions

67

SECTION 3.19

Federal Reserve Regulations

67

SECTION 3.20

EEA Financial Institution

67

SECTION 3.21

No UK Tax Deduction

67

 

ARTICLE IV.

CONDITIONS

 

SECTION 4.01

Effective Date

68

SECTION 4.02

Each Credit Event

69

 

ARTICLE V.

AFFIRMATIVE COVENANTS

 

SECTION 5.01

Financial Statements; and Other Information

70

SECTION 5.02

Notices of Material Events

71

SECTION 5.03

Existence; Conduct of Business

71

SECTION 5.04

Payment of Obligations

72

SECTION 5.05

Maintenance of Properties

72

SECTION 5.06

Books and Records; Inspection Rights

72

SECTION 5.07

Compliance with Laws

72

SECTION 5.08

Use of Proceeds and Letters of Credit

73

SECTION 5.09

Insurance

73

SECTION 5.10

Additional Subsidiaries

74

SECTION 5.11

Additional Collateral; Further Assurances

74

SECTION 5.12

Accuracy of Information

74

SECTION 5.13

Post-Closing Covenant

75

SECTION 5.14

Designation of Subsidiaries

75

 

ARTICLE VI.

NEGATIVE COVENANTS

 

SECTION 6.01

Indebtedness

75

SECTION 6.02

Liens

77

SECTION 6.03

Fundamental Changes

79

SECTION 6.04

Investments, Loans, Advances, Guarantees and Acquisitions

79

SECTION 6.05

Swap Agreements

82

SECTION 6.06

Restricted Payments

82

SECTION 6.07

Transactions with Affiliates

84

SECTION 6.08

Restrictive Agreements

85

SECTION 6.09

Amendment to Material Documents; Fiscal Year

85

SECTION 6.10

Financial Covenants

85

SECTION 6.11

Sale and Leaseback Transaction

86

SECTION 6.12

Asset Sales

86

SECTION 6.13

Immaterial Subsidiaries

87

 

ARTICLE VII.

EVENTS OF DEFAULT

 

ARTICLE VIII.

THE ADMINISTRATIVE AGENT

 

SECTION 8.01

Authorization and Action

90

SECTION 8.02

Administrative Agents Reliance, Indemnification, Etc.

93

SECTION 8.03

Posting of Communications

94

SECTION 8.04

The Administrative Agent Individually

95

SECTION 8.05

Successor Administrative Agent

95

- ii -


 

Page

 

SECTION 8.06

Acknowledgements of Lenders and Issuing Banks

96

SECTION 8.07

Collateral Matters

96

SECTION 8.08

Credit Bidding

97

SECTION 8.09

Certain ERISA Matters

98

SECTION 8.10

Withholding Taxes

99

 

ARTICLE IX.

MISCELLANEOUS

 

SECTION 9.01

Notices

100

SECTION 9.02

Waivers; Amendments

101

SECTION 9.03

Expenses; Indemnity; Damage Waiver

103

SECTION 9.04

Successors and Assigns

105

SECTION 9.05

Survival

108

SECTION 9.06

Counterparts; Integration; Effectiveness; Electronic Execution

108

SECTION 9.07

Severability

109

SECTION 9.08

Right of Setoff

109

SECTION 9.09

Governing Law; Jurisdiction; Consent to Service of Process

109

SECTION 9.10

WAIVER OF JURY TRIAL

110

SECTION 9.11

Headings

110

SECTION 9.12

Confidentiality

110

SECTION 9.13

Material Non-Public Information

111

SECTION 9.14

Several Obligations; Nonreliance; Violation of Law

111

SECTION 9.15

USA PATRIOT Act

112

SECTION 9.16

Appointment for Perfection

112

SECTION 9.17

Interest Rate Limitation

112

SECTION 9.18

No Advisory or Fiduciary Responsibility

112

SECTION 9.19

No Fiduciary Duty, etc.

112

SECTION 9.20

Acknowledgement and Consent to Bail-In of EEA Financial Institutions

113

 

ARTICLE X.LOAN GUARANTY

 

SECTION 10.01

Guaranty

114

SECTION 10.02

Guaranty of Payment

114

SECTION 10.03

No Discharge or Diminishment of Loan Guaranty

114

SECTION 10.04

Defenses Waived

115

SECTION 10.05

Rights of Subrogation

115

SECTION 10.06

Reinstatement; Stay of Acceleration

115

SECTION 10.07

Information

115

SECTION 10.08

Termination

115

SECTION 10.09

[Reserved]

115

SECTION 10.10

Maximum Liability

115

SECTION 10.11

Contribution

116

SECTION 10.12

Liability Cumulative

117

SECTION 10.13

Keepwell

117

SECTION 10.14

Waiver of droit de division and droit de discussion

117

 

 

- iii -


 

 

SCHEDULES:

 

 

 

Schedule 1.01A

Existing Letters of Credit

Schedule 1.01B

Immaterial Subsidiaries

Schedule 2.01A

Commitments

Schedule 2.01B

Letters of Credit Commitments

Schedule 3.06

Disclosed Matters

Schedule 3.14

Insurance

Schedule 3.15

Subsidiaries

Schedule 4.01(b)

Collateral Documents

Schedule 5.13

Post-Closing Covenant

Schedule 6.01

Existing Indebtedness

Schedule 6.02

Existing Liens

Schedule 6.04

Existing Investments

Schedule 6.08

Existing Restrictions

 

EXHIBITS:

 

 

 

 

 

Exhibit A

Form of Assignment and Assumption

Exhibit B

Compliance Certificate

Exhibit D

Joinder Agreement

Exhibit E

Form of Increasing Lender Supplement – Existing Lender

Exhibit F

Form of Augmenting Lender Supplement – New Lender

Exhibit G

Form of Borrowing Request

Exhibit H

Form of Solvency Certificate

Exhibit I

Form of Revolving Note

Exhibit J

Form of Term Note

Exhibit K

Form of Interest Election Request

 

 

 

- iv -


 

CREDIT AGREEMENT dated as of July 23, 2018 (the “Effective Date”) (as it may be amended, modified, restated, or otherwise supplemented from time to time, this “Agreement”), among MIMECAST LIMITED, a public company incorporated in Jersey with registration number 119119 and having its registered office at 22 Grenville Street, St Helier, Jersey JE4 8PX, as the Borrower, the other Loan Parties party hereto, the Lenders party hereto, and JPMORGAN CHASE BANK, N.A., as the Administrative Agent.

 

WHEREAS, the Borrower has requested that the Lenders extend credit to the Borrower in the form of (i) Term Loans on the Effective Date in an aggregate principal amount of $100,000,000 pursuant to this Agreement and (ii) a revolving credit facility in an aggregate principal amount of $50,000,000 pursuant to this Agreement; and

 

WHEREAS, the proceeds of the Term Loans, together with the proceeds of any Revolving Borrowing on the Effective Date, will be used for working capital and other general corporate purposes (including to fund Permitted Acquisitions and any other transaction not prohibited by this Agreement).

NOW, THEREFORE, the parties hereto agree as follows:

ARTICLE I.

Definitions

SECTION 1.01Defined Terms.   As used in this Agreement, the following terms have the meanings specified below:

 

ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, bear interest at a rate determined by reference to the Alternate Base Rate.

 

Acquisitionmeans any transaction or series of related transactions resulting, directly or indirectly, in (a) the acquisition of all or substantially all of the assets of any Person (other than an existing Subsidiary), or any business or division of any Person (other than an existing Subsidiary), (b) the acquisition of in excess of fifty percent (50%) of the stock (or other Equity Interests) with ordinary voting power of any Person (other than an existing Subsidiary), or (c) the acquisition of another Person (other than an existing Subsidiary) by a merger, amalgamation or consolidation or any other combination with such Person.

 

Additional Lender has the meaning assigned to such term in Section 2.21(a).

 

Adjusted LIBO Rate means, with respect to any Eurodollar Borrowing for any Interest Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/100 of 1%) equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.

 

Administrative Agent means JPMorgan Chase Bank, N.A. in its capacity as administrative agent for the Lenders hereunder, and any successor administrative agent as provided in Article VIII.

 

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 Indemnitee has the meaning assigned to it in Section 9.03(c).

 

Aggregate Revolving Commitment means the aggregate amount of the Revolving Commitments of all of the Lenders, as reduced or increased from time to time pursuant to the terms and conditions hereof.   As of the Effective Date, the Aggregate Revolving Commitment is $50,000,000.

 

Agreement has the meaning assigned to such term in the preamble.

1


 

Alternate Base Rate means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the NYFRB Rate in effect on such day plus ½ of 1% and (c) the Adjusted LIBO Rate for a one month Interest Period on such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1%; provided that for the purpose of this definition, the Adjusted LIBO Rate for any day shall be based on the LIBO Screen Rate (or if the LIBO Screen Rate is not available for such one month Interest Period, the Interpolated Rate) at approximately 11:00 a.m. London time on such day. Any change in the Alternate Base Rate due to a change in the Prime Rate, the NYFRB Rate or the Adjusted LIBO Rate shall be effective from and including the effective date of such change in the Prime Rate, the NYFRB Rate or the Adjusted LIBO Rate, respectively. If the Alternate Base Rate is being used as an alternate rate of interest pursuant to Section 2.14 hereof, then the Alternate Base Rate shall be the greater of clause (a) and (b) above and shall be determined without reference to clause (c) above. For the avoidance of doubt, if the Alternate Base Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.

 

Amendment No. 1 means Amendment No. 1 to the Credit Agreement, dated as of June 12, 2020, by and among the Borrower, the Guarantors, the Administrative Agent, the Issuing Banks and Required Lenders.

 

Amendment No. 1 Effective Date means June 12, 2020.

 

Anti-Corruption Laws means all laws, rules, and regulations of any jurisdiction applicable to the Borrower or any of its Subsidiaries from time to time concerning or relating to bribery or corruption.

 

Anti-Terrorism Laws means all laws, rules, and regulations relating to terrorism or money laundering, including Executive Order No. 13224 (September 23, 2001), the USA Patriot Act, all laws, rules, and regulations comprising or implementing the Bank Secrecy Act, any  Sanctions laws and the laws, rules, and regulations administered by OFAC.

 

Applicable Percentage means, at any time with respect to any Lender, (a) with respect to Revolving Loans or LC Exposure, the percentage equal to a fraction, the numerator of which is such Lender’s Revolving Commitment and the denominator of which is the Aggregate Revolving Commitment; provided, that if the Revolving Commitments have terminated or expired, the Applicable Percentages shall be determined based upon the Revolving Commitments most recently in effect, after giving effect to any assignments; provided further, that in the case of Section 2.20 when a Defaulting Lender shall exist, any such Defaulting Lender’s Revolving Commitment shall be disregarded in the foregoing calculation; and (b) with respect to Term Loans, a percentage equal to a fraction, the numerator of which is the aggregate outstanding principal amount of such Lender’s Term Loans and the denominator of which is the sum of the aggregate outstanding principal amount of all Term Loans and unfunded Term Loan Commitments; provided, that in the case of Section 2.20 when a Defaulting Lender shall exist, any such Defaulting Lender’s Credit Exposure and unused Commitments shall be disregarded in the foregoing calculation.

 

Applicable Rate means, for any day, with respect to any Eurodollar Loan or ABR Loan or with respect to the commitment fees payable hereunder, as the case may be, the applicable rate per annum set forth below under the caption “Applicable Rate for Eurodollar Loans”, “Applicable Rate for  ABR Loans or “Applicable Rate for Commitment Fee”, as the case may be, based on the Consolidated Total Leverage Ratio applicable on such date:

 

Pricing

Level

Consolidated Total

Leverage Ratio

Applicable Rate for

Eurodollar Loans

Applicable Rate for

ABR Loans

Applicable Rate for

Commitment Fee

I

1.00:1.00

1.375%

0.375%

0.20%

II

> 1.00:1.00

and

2.00:1.00

1.625%

0.625%

0.25%

III

> 2.00:1.00

1.875%

0.875%

0.30%

 

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For purposes of the foregoing, (a) the Consolidated Total Leverage Ratio shall be determined as of the end of each fiscal quarter of the Borrower and its Subsidiaries based on the Financial Statements and the corresponding certificate delivered pursuant to Section 5.01(d); and (b) each change in the Applicable Rate resulting from a change in the Consolidated Total Leverage Ratio shall be effective during the period commencing on and including the date of delivery to the Administrative Agent of such Financial Statements and certificate indicating such change and ending on the date immediately preceding the effective date of the next change in the Applicable Rate; provided, unless waived with the written consent of the Required Lenders, Pricing Level III set forth above shall apply if the Borrower fails to deliver the consolidated Financial Statements or the corresponding certificate required to be delivered by it pursuant to Section 5.01(d), during the period from the expiration of the time for delivery thereof until such Financial Statements and certificate are delivered. Pricing Level II set forth above shall apply during the period commencing on and including the Effective Date and ending on the date immediately preceding the delivery of Financial Statements covering the fiscal quarter of the Borrower and its Subsidiaries ending September 30, 2018, pursuant to Section 5.01(b) and the corresponding certificate pursuant to Section 5.01(d).

 

If at any time the Administrative Agent or the Borrower reasonably and in good faith determines that the Financial Statements or compliance certificate upon which the Applicable Rate was determined were incorrect (whether based on a mistake, restatement, fraud or otherwise), in the event such inaccuracy resulted in a lower Applicable Rate than should have been in effect, the Administrative Agent shall notify the Borrower in writing and, subject to confirmation by the Borrower of such error (which confirmation shall not be unreasonably withheld or delayed), the Borrower shall be required to retroactively pay any additional amount that the Borrower would have been required to pay if such Financial Statements and compliance certificate had been accurate at the time they were delivered. It is acknowledged and agreed that nothing in this definition will limit the rights of the Administrative Agent and the Lenders under the Loan Documents, including Article VII hereof; provided, that any additional interest due under this paragraph shall not be due and payable until such written demand is made for such payment by the Administrative Agent and accordingly, any nonpayment of such interest as a result of such demand not having been made shall not constitute a Default or Event of Default.

 

Approved Currency means each of Dollars, Euros, British Pounds, Australian Dollars, Canadian Dollars, Swiss Francs, Israeli New Shekel, South African Rand and any other currency that is approved pursuant to Section 1.09(c).

 

Approved Foreign Currency means any Approved Currency other than Dollars.

 

Approved Electronic Platform has the meaning assigned to it in Section 8.03(a).

 

Approved Fund has the meaning assigned to it in Section 9.04(b).

 

Assignment and Assumption means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 9.04), and accepted by the Administrative Agent, in the form of Exhibit A or any other form (including electronic records generated by the use of an electronic platform) approved by the Administrative Agent.

Augmenting Lender has the meaning assigned to such term in Section 2.21(a).

Australian Dollars means the lawful money of the Commonwealth of Australia.

 

Availability Period means the period from and including the Effective Date to but excluding the earlier of the Maturity Date and the date of termination of the Commitments.

 

Available Amountmeans, as of any date of determination, an amount, determined on a cumulative basis, equal to $30,000,000, plus, without duplication:

 

(a)the cumulative amount of all cash contributions to the common capital of the Borrower or the amount of Net Proceeds actually received by the Borrower from the issuance of any Qualified Equity Interests on or after the Effective Date, plus

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(b)the  fair market value of all Qualified Equity Interests of the Borrower issued upon conversion or exchange of Indebtedness or Disqualified Equity Interests of the Borrower or any of its Subsidiaries incurred after the Effective Date, plus

 

(c)an amount equal to any returns of original principal or capital accounts actually received by the Borrower or any of the Subsidiaries in cash in respect of any Investments made after the Effective Date pursuant to Section 6.04(w), minus

 

(d)the sum of (i) the aggregate amount of Investments made after the Effective Date pursuant to Section 6.04(w), (ii) the aggregate amount of Restricted Payments made after the Effective Date pursuant to clause (x) of Section 6.06(a), and (iii) the aggregate amount of prepayments  of Subordinated Indebtedness made after the Effective Date.

 

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.

 

Bank Secrecy Act means Public Law 91-508, 84 Stat. 1119 (1970).

 

Banking Services means any of the following bank services provided to the Borrower or any Subsidiary by any Banking Services Provider: (a) credit cards for commercial customers (including “commercial credit cards” and purchasing cards), (b) stored value cards and (c) treasury management services (including controlled disbursement, automated clearinghouse transactions, return items,  overdrafts and  interstate depository network services).

Banking Services Agreement means any agreement entered into in connection with Banking Services.

Banking Services Providermeans any Person that (i) is a Lender or an Affiliate of a Lender at the time it enters into the applicable Banking Services Agreement, in its capacity as a party thereto, or (ii) with respect to any Banking Services Agreement existing as of the Effective Date, is the Administrative Agent, a Lender or an Affiliate of the Administrative Agent or a Lender as of the Effective Date, in its capacity as a party thereto, in each case together with such Person’s successors and permitted assigns.

 

Bankruptcy Code means Title 11 of the United States Code entitled “Bankruptcy”, as now and hereafter in effect, or any successor statute.

 

Bankruptcy Event means, with respect to any Person, such Person becomes the subject of a voluntary or involuntary bankruptcy or insolvency  proceeding, or has had a receiver, conservator, trustee, administrator, custodian, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business appointed for it, or, in the good faith determination of the Administrative Agent, has taken any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any such proceeding or appointment or has had any order for relief in such proceeding entered in respect thereof; provided that a Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition of any ownership interest, in such Person by a Governmental Authority or instrumentality thereof, unless such ownership interest results in or provides such Person 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 permits such Person (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person.

 

Beneficial Ownership Certification means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.

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Beneficial Ownership Regulation means 31 C.F.R. § 1010.230.

Benefit Plan means any of (a) an employee benefit plan (as defined in Section 3(3) of ERISA) that is subject to Title I of ERISA, (b) a “plan as defined in Section 4975 of the Code to which Section 4975 of the Code applies, and (c) any Person whose assets include (for purposes of the Plan Asset Regulations 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”.

 

Blocked Person means any Person: (a) listed in the annex to, or is otherwise subject to the provisions of, Executive Order No. 13224; (b) a Person owned or controlled by, or acting for or on behalf of, any Person that is listed in the annex to, or is otherwise subject to the provisions of, Executive Order No. 13224; (c) a Person with which any Lender is prohibited from dealing or otherwise engaging in any transaction by any Anti-Terrorism Laws; (d) a Person that commits, threatens or conspires to commit or supports “terrorism as defined in Executive Order No. 13224; or (e) a Person that is named on the most current OFAC lists or a Person owned or controlled by a Person or Persons on the current OFAC lists of designated persons under Anti-Terrorism Laws and Sanctions laws.

Board means the Board of Governors of the Federal Reserve System of the United States of America.

Borrower means Mimecast Limited, a company incorporated in Jersey with registered number 119119.

Borrowing means (a) Revolving Loans of the same Type and currency, made, converted or continued on the same date and, in the case of Eurodollar Loans, as to which a single Interest Period is in effect, or (b) Term Loans of the same Type and currency (if applicable), made, converted or continued on the same date and, in the case of Eurodollar Loans, as to which a single Interest Period is in effect.

 

Borrowing Request means a request by the Borrower for a Borrowing in accordance with Section 2.03, which shall be substantially in the form of Exhibit G or any other form approved by the Administrative Agent.

 

British Pounds means lawful money of the United Kingdom and the Bailiwick of Jersey.

 

British Pounds Letter of Credit means any Letter of Credit issued hereunder, the face amount of which is denominated in British Pounds.

 

British Pounds L/C Spot Rate means the rate determined by the Administrative Agent to be the rate quoted by it as the spot rate for the purchase by it of British Pounds with Dollars through its principal foreign exchanging trading office at approximately 11:00 a.m. London time on the date as of which the foreign exchange computation is made.

 

Business Day means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed; provided that (a) when used in connection with a Eurodollar Loan, the term “Business Day shall also exclude any day on which banks are not open for dealings in dollar deposits in the London interbank market and (b) when used in connection with any British PoundsForeign Currency Letter of Credit, the term Business Day shall also exclude any day on which commercial banks in London are authorized or required by law to remain closed.

 

Canadian Dollars means the lawful money of Canada.

 

Capital Expenditures means, without duplication, for any period, with  respect to any Person,  the aggregate of all expenditures (whether paid in cash or accrued as liabilities) during such period by such Person for the acquisition or leasing (pursuant to a finance lease) of fixed or capital assets or additions to equipment (including replacements, capitalized repairs and improvements during such period) that should be capitalized under GAAP on a consolidated balance sheet of such Person, but excluding (i) the purchase price of equipment that is purchased contemporaneously with the trade-in of existing equipment to the extent that the gross amount of such purchase price is reduced by the credit granted by the seller of such equipment for the

5


 

equipment being traded in at such time, (ii) Permitted Acquisitions and other Investments permitted pursuant to Section 6.04, (iii) any expenditures which are contractually required to be, and are, reimbursed to the Loan Parties in cash by a third party (including landlords) during such period of calculation and (iv) any expenditures financed with the Net Proceeds received by the Borrower from the issuance of any of its Qualified Equity Interests.

Capitalized Software Expenditures means, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities) by any Person during such period in respect of purchased software or internally developed software and software enhancements that, in conformity with GAAP, are or are required to be reflected as capitalized costs on the consolidated balance sheet (excluding the footnotes thereto) of such Person.

 

Cash Equivalents means:

 

(a)Dollars, Euro, British Pounds, Canadian Dollars or any national currency of any member state of the European Union;

 

(b)direct obligations  of, or obligations  the principal of and interest on which are unconditionally guaranteed by, the United States, Canada, a member state of the European Union or, in each case, any agency or instrumentality thereof (provided that the full faith and credit of such country or such member state is pledged in support thereof), in each case maturing within one year from the date of acquisition thereof;

 

(c)investments in commercial paper maturing within one year from the date of acquisition thereof and having, at such date of acquisition, a rating of at least P-2 (or the equivalent thereof) by Moodys or at least A-2 (or the equivalent thereof) by S&P, or if at the time neither is issuing comparable ratings then a comparable rating of another nationally recognized statistical rating organization;

 

(d)investments in certificates of deposit, bankers acceptances and time deposits maturing within one year from the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, any domestic office of any commercial bank organized under the laws of the United States or any State thereof which has a combined capital and surplus and undivided profits of not less than $500,000,000;

 

(e)fully collateralized repurchase agreements with a term of not more than 30 days for securities described in clause (b) above and entered into with a financial institution satisfying the criteria described in clause (d) above;

 

(f)money market funds that (i) comply with the criteria set forth in SEC Rule 2a-7 under the Investment Company Act of 1940, (ii) are rated AAA by S&P and Aaa by Moodys and (iii) have portfolio assets of at least $5,000,000,000;

 

(g)Indebtedness issued by Persons with a rating of “A or higher from S&P or “A-2 or higher from Moodys (or, if at the time, neither is issuing comparable ratings, then a comparable rating of another nationally recognized statistical rating organization) maturing with one year from the date of acquisition thereof;

 

(h)bills of exchange issued in the United States, Canada or a member state of the European Union eligible for rediscount at the relevant central bank and accepted by a bank (or any dematerialized equivalent);

 

(i)interests in any investment company, money market or enhanced high yield fund which invests at least 95% of its assets in instruments of the type specified in clauses (a) through (h) above;

 

6


 

(j)instruments and investments of the type and maturity described in clause (a) through (i) denominated in any foreign currency or of foreign obligors, which investments or obligors are, in the reasonable judgment of the Borrower, comparable in investment quality to those referred to above;

 

(k)the marketable securities portfolio owned by the Borrower or its direct or indirect Subsidiaries on the Effective Date; and

(l)solely with respect to any Subsidiary that is a Non-US Subsidiary, investments  of comparable tenor and credit quality to those described in the foregoing clauses (b) through (k) customarily utilized in countries in which such Non-US Subsidiary operates for short term cash management purposes.

 

Change in Control means (a) the acquisition of ownership, directly or indirectly, beneficially or of record, by any Person or group (within the meaning of the Securities Exchange Act of 1934 and the rules of the SEC thereunder as in effect on the date hereof), of Equity Interests representing more than thirty-five percent (35%) of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of the Borrower or (b) occupation at any time of a majority of the seats (other than vacant seats) on the board of directors of the Borrower by Persons who were not (i) directors of the Borrower on the date of this Agreement or (ii) nominated, approved or appointed by the board of directors of the Borrower.

 

Change in Law means the occurrence after the date of this Agreement or, with respect to any Lender, such later date on which such Lender becomes a party to this Agreement) of (a) the adoption of 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) compliance by any Lender or the Issuing Bank (or, for purposes of Section 2.15(b), by any lending office of such Lender or by such Lender’s or the Issuing Bank’s holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement; provided that,  notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith or in the implementation thereof and (y) 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, issued or implemented.

 

Charges has the meaning assigned to such term in Section 9.17.

 

Class when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans or Term Loans.

 

Closing Date Term Loan Commitment means, with respect to each Lender, the commitment of such Lender to make Closing Date Term Loans hereunder. The initial amount of each Lender’s Closing Date Term Loan Commitment is set forth on Schedule 2.01A. The initial aggregate amount of all Lenders Closing Date Term Loan Commitments is $100,000,000.

 

Closing Date Term Loans has the meaning set forth in Section 2.01(b). “Code means the U.S. Internal Revenue Code of 1986, as amended.

Collateralmeans all of the Collateral” (or equivalent term) referred to in the Collateral Documents and any and all other property of any Loan Party, now existing or hereafter acquired, that may at any time be or become subject to a Lien in favor of the Administrative Agent, on behalf of the Secured Parties, to secure the Secured Obligations. For greater certainty, the term Collateral” excludes all Excluded Property as defined in Collateral Documents.

 

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Collateral Documents means, collectively, the Security Agreement, the Jersey Collateral Agreements, the English Collateral Agreements and all other agreements, instruments and documents executed in connection with this Agreement (including those listed on Schedule 4.01(b)) that are intended to create or perfect Liens to secure the Secured Obligations, including all other security agreements, pledge agreements, mortgages, deeds of trust, pledges, powers of attorney relating to any of the foregoing, and collateral assignments or similar collateral documents, whether heretofore, now or hereafter executed by the Borrower or any of its Subsidiaries and delivered to the Administrative Agent.Commitment means, with respect to each Lender, the sum of such Lenders Revolving Commitment and Term Loan Commitment. The initial amount of each Lenders Commitment is set forth on Schedule 2.01A, or in the Assignment and Assumption or other documentation contemplated hereby pursuant to which such Lender shall have assumed its Commitment, as applicable.

 

Commodity Exchange Act means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.

 

Communicationsmeans, collectively, any notice, demand, communication, information, document or other material provided by or on behalf of any Loan Party pursuant to any Loan Document or the transactions contemplated therein which is distributed by the Administrative Agent, any Lender or any Issuing Bank by means of electronic communications, including through an Approved Electronic Platform.

 

Competitor means any Person (a) that is an  operating company directly and primarily engaged in substantially similar business operations as the Borrower and (b) any of such Person’s subsidiaries in each case identified in writing to the Administrative Agent from time to time.

 

Competitor Controller means any (a) direct or indirect parent company of a Competitor and (b) Person that is Controlled by such Competitor in each case identified in writing to the Administrative Agent, excluding in each case of (a) and (b) any Person that is a financial institution, a debt fund or an investment vehicle that is engaged in the business of making, purchasing, holding or otherwise investing in loans, notes, bonds and similar extensions of credit or securities in the ordinary course of business to or of unaffiliated third parties.

 

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 or consolidated means, with reference to any term defined herein, that term as applied to the accounts of the Borrower and its Subsidiaries, consolidated in accordance with GAAP.

 

Consolidated EBITDA means, with reference to any period, Consolidated Net Income for such period plus

 

(a)without duplication and, except with respect to amounts added back pursuant to clauses (xii) (solely in the case of amounts constituting the proceeds of business interruption insurance that are not already included in Consolidated Net Income), (xv) or (xvii), to the extent deducted (and not added back) in determining such Consolidated Net Income for such period,

 

(i)Consolidated Interest Expense (including  net