Exhibit 10.1
Execution version
NINTH AMENDMENT TO
TERM LOAN CREDIT AND SECURITY AGREEMENT
THIS NINTH AMENDMENT TO TERM LOAN CREDIT AND SECURITY AGREEMENT (this “Amendment”), dated as of July 11, 2024 (the “Ninth Amendment Effective Date”), is entered into by and among QUANTUM CORPORATION, a Delaware corporation (“Quantum”, and together with each other Person joined to the Credit Agreement as a borrower from time to time, collectively, the “Borrowers”, and each, a “Borrower”), QUANTUM LTO HOLDINGS, LLC, a Delaware limited liability company (“Quantum LTO”), SQUARE BOX SYSTEMS LIMITED, a company incorporated in England and Wales (registered number 03819556) (“Square Box”, and together with Quantum LTO and each other Person joined to the Credit Agreement as a guarantor from time to time, collectively, the “Guarantors”, and each, a “Guarantor”, and together with the Borrowers, collectively, the “Loan Parties”, and each, a “Loan Party”), the financial institutions which are now or which hereafter become a party to the Credit Agreement as lenders (collectively, the “Lenders”, and each, a “Lender”) constituting the Required Lenders, and BLUE TORCH FINANCE LLC (“Blue Torch”), in its capacity as disbursing agent and collateral agent for the Lenders (in such capacity, together with its successors and assigns, “Agent”).
RECITALS
A. Agent, the Lenders and certain of the Loan Parties are parties to that certain Term Loan Credit and Security Agreement, dated as of August 5, 2021, as amended by that certain First Amendment to Term Loan Credit and Security Agreement, dated as of September 30, 2021, that certain Second Amendment to Term Loan Credit and Security Agreement, dated as of March 15, 2022, that certain Third Amendment to Term Loan Credit and Security Agreement, dated as of April 25, 2022, that certain Fourth Amendment to Term Loan Credit and Security Agreement, dated as of June 1, 2023, that certain Fifth Amendment and Waiver to Term Loan Credit and Security Agreement, dated as of February 14, 2024, that certain Sixth Amendment to Term Loan Credit and Security Agreement, dated as of March 22, 2024, that certain Seventh Amendment and Waiver to Term Loan Credit and Security Agreement, dated as of May 15, 2024 and that certain Eighth Amendment and Waiver to Term Loan Credit and Security Agreement, dated as of May 24, 2024 and subject to the Waiver to Term Loan Credit and Security Agreement, dated as of November 13, 2023 (as amended hereby and as the same may have been further amended, supplemented or otherwise modified from time to time prior to the date hereof, the “Credit Agreement”), pursuant to which the Lenders have made and may hereafter make certain loans and have provided and may hereafter provide certain financial accommodations to the Borrowers.
B. The Borrowers have requested that Agent and the Required Lenders agree to amend certain provisions of the Credit Agreement as set forth herein, and Agent and the Required Lenders have agreed to make such amendments, subject to the terms and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
1. Interpretation. Capitalized terms used herein and not defined shall have the meanings given to such terms in the Credit Agreement.
2. Amendments to Credit Agreement. Pursuant to the request of the Loan Parties and subject to the limitations set forth in Section 3 and satisfaction of the conditions set forth in Section 4 hereof and in reliance on the representations and warranties set forth in Section 5 hereof and otherwise herein, effective as of the Ninth Amendment Effective Date, the Credit Agreement is hereby amended as follows:
(a) Section 6.5 of the Credit Agreement is hereby amended by inserting the following new paragraph at the end of clause (c) thereof:
“Notwithstanding anything contained herein to the contrary, the Total Net Leverage Ratio for Quantum and its Subsidiaries, on a consolidated basis, for the fiscal quarter ended June 30, 2024 shall not be tested until July 31, 2024, and no Event of Default shall occur under this Agreement until July 31, 2024 for any failure to satisfy the Total Net Leverage Ratio for Quantum and its Subsidiaries, on a consolidated basis, for the period ended June 30, 2024.”
3. Limitations to Amendments to Credit Agreement; Additional Covenants.
(a) Agent’s and the Lenders’ agreements under Section 2 hereof to amend certain of the provisions of the Credit Agreement shall be limited precisely as written and shall not be deemed to (i) be an amendment or a waiver of any other actual or potential Default or Event of Default or any other term or condition of the Credit Agreement or any Other Documents or to prejudice any right or remedy which such persons may now have or may have in the future under or in connection with the Credit Agreement, the Other Documents or otherwise, (ii) be a consent to any amendment, waiver or modification of any other term or condition of the Credit Agreement or of any Other Documents, (iii) prejudice any right that Agent or the Lenders have or may have in the future under or in connection with the Credit Agreement or any Other Documents, (iv) create any obligation to forbear from taking any enforcement action, or to make any further extensions of credit, (v) establish a custom or course of dealing among the Loan Parties, on the one hand, or Agent and/or any Lender, on the other hand, or (vi) be a consent to any future agreement or waiver.
(b) The Loan Parties agree to make substantial progress (as determined by the Agent and the Required Lenders in their sole discretion) by July 18, 2024 (or such later date as may be agreed by the Agent in its sole discretion in writing, which may be by electronic mail) on certain business initiatives.
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Failure to satisfy the covenant of this Section 3(b) shall constitute an immediate Event of Default.
4. Conditions Precedent. The effectiveness of this Amendment is expressly conditioned upon the satisfaction of each of the following conditions precedent:
(a) Agent shall have received this Amendment, duly authorized, executed and delivered by each Loan Party and the Required Lenders.
(b) As of the Ninth Amendment Effective Date, immediately after giving effect to this Amendment and the Revolving Loan Amendment (as defined below), no Default or Event of Default shall have occurred and be continuing.
(c) As of the Ninth Amendment Effective Date, immediately after giving effect to this Amendment and the Revolving Loan Amendment, the representations and warranties set forth in Section 5 hereof shall be true and correct in all material respects (without duplication of any materiality qualifier).
(d) The Lenders (or their respective Affiliates, as directed by the Lenders) shall have received, on a pro rata basis, in accordance with the outstanding principal amount of Initial Term Loans held by such Lenders on and as of the Ninth Amendment Effective Date (immediately prior to giving effect to this Amendment), warrants issued by Quantum for 1,000,000 shares, in form and substance satisfactory to the Lenders, to purchase Equity Interests of Quantum at the agreed purchase price.
(e) Agent shall have received, in form and substance reasonably satisfactory to Agent, an amendment under the Revolving Loan Agreement (the “Revolving Loan Amendment”), duly authorized, executed and delivered by the Borrowers, the Guarantors, the Revolving Loan Agent and the Revolving Loan Lenders.
(f) The Loan Parties shall have paid (or shall pay substantially concurrently with the Ninth Amendment Effective Date), all costs, expenses and fees owed to Agent and the Lenders in connection with the preparation, execution and delivery of this Amendment to the extent invoiced prior to the Ninth Amendment Effective Date.
Agent shall notify the Borrowers in writing of the effectiveness of this Amendment, which notice shall be conclusive and binding on all parties to the Credit Agreement. For the avoidance of doubt, it is understood and agreed that such written notification shall not be a condition to the effectiveness of this Amendment or the occurrence of the Ninth Amendment Effective Date.
5. Representations and Warranties. In addition to the continuing representations and warranties heretofore or hereafter made by the Loan Parties to Agent and Lenders pursuant to the Credit Agreement and the Other Documents, each Loan Party hereby represents and warrants to Agent and each Lender as follows:
(a) each Loan Party has full power, authority and legal right to enter into this Amendment and to perform all its respective Obligations hereunder;
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(b) this Amendment has been duly executed and delivered by each Loan Party;
(c) this Amendment constitutes the legal, valid and binding obligation of each Loan Party enforceable in accordance with its terms, except as such enforceability may be limited by any applicable bankruptcy, insolvency, moratorium or similar Laws affecting creditors’ rights generally;
(d) the execution, delivery and performance of this Amendment (i) are within each Loan Party’s corporate or limited liability company powers, as applicable, (ii) have been duly authorized by all necessary corporate or limited liability company action, as applicable, (iii) are not in contravention of law or the terms of such Loan Party’s Organizational Documents or to the conduct of such Loan Party’s business or any Material Contract or undertaking to which such Loan Party is a party or by which such Loan Party is bound, including without limitation the Revolving Loan Documents, (iv) will not conflict with or violate any material provisions of any law or regulation, or any judgment, order or decree of any Governmental Body, (v) will not require the Consent of any Governmental Body, any party to a Material Contract or any other Person, except (x) any Consents of any party to a Material Contract or any other Person (other than a Governmental Body) with respect to which the failure to obtain could not reasonably be expected, individually or in the aggregate to have a Material Adverse Effect, (y) any immaterial Consents of any Governmental Body, or (z) those Consents set forth on Schedule 5.1 to the Credit Agreement, all of which will have been duly obtained, made or complied with prior to the Ninth Amendment Effective Date and which are in full force and effect on the Ninth Amendment Effective Date, and (vi) will not conflict with, nor result in any breach in any of the provisions of or constitute a default under or result in the creation of any Lien except Permitted Encumbrances upon any asset of such Loan Party under the provisions of any material agreement, instrument, or other document to which such Loan Party is a party or by which it or its property is a party or by which it may be bound, including without limitation any of the Revolving Loan Documents;
(e) each Loan Party is duly formed or incorporated, as applicable, and in good standing under the laws of the state of its incorporation or formation, as applicable, and is good standing in such state and is qualified to do business in any state where the failure to be so qualified could reasonably be expected to result in a Material Adverse Effect;
(f) each of the representations and warranties made by any Loan Party in the Credit Agreement and the Other Documents, after giving effect to this Amendment and the Revolving Loan Amendment, are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that are qualified or modified by materiality in the text thereof) as if made on the Ninth Amendment Effective Date and immediately after giving effect to this Amendment and the Revolving Loan Amendment and the transactions contemplated hereby and thereby, except to the extent that any such representation or warranty is made as of an earlier and/or specified date, in which case such representation or warranty shall have been true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that are qualified or modified by materiality in the text thereof) as of such earlier or specified date; and
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(g) on the Ninth Amendment Effective Date, immediately after giving effect to this Amendment and the Revolving Loan Amendment, no Default or Event of Default exists or has occurred and is continuing.
6. Costs and Expenses. Each Loan Party, jointly and severally, agrees to pay on demand all costs and expenses of Agent and the Lenders incurred in connection with the preparation, negotiation, execution and delivery of this Amendment and the other agreements, instruments and documents to be delivered hereunder (including, without limitation, the reasonable fees, disbursements and other charges of counsel to each of Agent and the Lenders with respect thereto) in accordance with the Credit Agreement.
7. Reaffirmation.
(a) Each Loan Party hereby ratifies and reaffirms (i) all of its payment and performance obligations, contingent or otherwise, under the Credit Agreement and each of the Other Documents to which it is a party, and (ii) its grant to Agent of a security interest in the Collateral under the Credit Agreement and each of the Other Documents to which it is a party.
(b) Square Box hereby confirms for the benefit of the Secured Parties that all obligations owed by it pursuant to Article XVII of the Credit Agreement shall remain in full force and effect notwithstanding the modifications referred to in this Amendment.
8. Acknowledgments. To induce Agent and Lenders to enter into this Amendment, each Loan Party acknowledges that:
(a) as of the Ninth Amendment Effective Date, (i) Agent and Lenders have performed without default all obligations required of Agent and Lenders under the Credit Agreement and each of the Other Documents; and (ii) there are no disputes with or claims against Agent or Lenders, or any knowledge of any facts giving rise to any disputes or claims, related to the Credit Agreement or any of the Other Documents, including, without limitation, any disputes or claims or knowledge of facts giving rise thereto, that involve a breach or violation on the part of Agent or any Lender of the terms and conditions of the Credit Agreement or any of the Other Documents; and
(b) no Loan Party has any valid defense to the enforcement of its respective obligations set forth in the Credit Agreement, the Other Documents or this Amendment, as applicable, by reason of any circumstance, action, cause or thing whatsoever which arises at any time on or prior to Ninth Amendment Effective Date.
9. Release of Claims. In consideration of the Lenders’ and Agent’s agreements contained in this Amendment, each Loan Party hereby irrevocably releases and forever discharges the Lenders and Agent and their respective successors, permitted assigns, and each of their respective officers, directors, Affiliates, attorneys, employees and agents (each, a “Released Person”) of and from any and all claims, suits, actions, investigations, proceedings or demands, whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute or common law of any kind or character, known or unknown, which such Loan Party ever had or now has against Agent, any Lender or any other Released Person which relates, directly or indirectly, to any acts or omissions of Agent, any Lender or any other Released Person relating to the Credit Agreement or Other Document prior to the Ninth Amendment Effective Date.
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10. Governing Law. This Amendment and all matters relating hereto or arising herefrom (whether arising under contract law, tort law or otherwise) shall, in accordance with Section 5-1401 of the General Obligations Law of the State of New York, be governed by and construed in accordance with the Laws of the State of New York.
11. Reference to Credit Agreement. Each of the Credit Agreement and the Other Documents, and any and all other agreements, documents or instruments nor or hereafter executed and/or delivered pursuant to the terms hereof or pursuant to the terms of the Credit Agreement as modified hereby, are hereby amended so that any reference therein to the Credit Agreement, whether direct or indirect, shall mean a reference to the Credit Agreement as modified hereby. This Amendment shall constitute an Other Document under the Credit Agreement.
12. Effect of this Amendment. Except as expressly amended pursuant hereto, no other changes or modifications to the Credit Agreement or any of the Other Documents are intended or implied, and in all other respects, the Credit Agreement and each of the Other Documents is hereby specifically ratified, restated and confirmed by all parties hereto as of the Ninth Amendment Effective Date. To the extent that any provision of the Credit Agreement or any of the Other Documents are inconsistent with the provisions of this Amendment, the provisions of this Amendment shall control.
13. Binding Effect. This Amendment shall be binding upon and inure to the benefit of each party hereto and their respective successors and permitted assigns.
14. Further Assurances. The Loan Parties shall execute and deliver such further documents and do such further acts and things as may be reasonably requested by Agent to effectuate the provisions and purposes of this Amendment.
15. Counterparts; Electronic Signature. This Amendment may be executed in any number of separate counterparts, all of which, when so executed, shall be deemed an original, but all such counterparts shall constitute one and the same agreement. Any signature delivered by a party by facsimile or electronic transmission (including email transmission of a .pdf image) shall be deemed to be an original signature hereto and shall be as effective as delivery of a manually executed counterpart hereof. The words “execution,” “execute”, “signed,” “signature,” and words of like import in or related to this Amendment or any document to be signed in connection with this Amendment shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms, 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.
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16. Entire Understanding. This Amendment and the documents executed concurrently herewith contain the entire understanding between each Loan Party, Agent and each Lender and supersede all prior agreements and understandings, if any, relating to the subject matter hereof.
17. Severability. If any part of this Amendment is contrary to, prohibited by, or deemed invalid under Applicable Laws, such provision shall be inapplicable and deemed omitted to the extent so contrary, prohibited or invalid, but the remainder hereof shall not be invalidated thereby and shall be given effect so far as possible.
18. Captions. The captions at various places in this Amendment are intended for convenience only and do not constitute and shall not be interpreted as part of this Amendment.
19. Jury Waiver. EACH PARTY TO THIS AMENDMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, COUNTERCLAIM, DEMAND, ACTION OR CAUSE OF ACTION (A) ARISING UNDER THIS AMENDMENT, ANY OTHER DOCUMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR (B) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THIS AMENDMENT, ANY OTHER DOCUMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR THERETO IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE AND EACH PARTY HEREBY CONSENTS THAT ANY SUCH CLAIM, COUNTERCLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AMENDMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENTS OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties have entered into this Amendment as of the date first above written.
| BORROWERS: | QUANTUM CORPORATION | |||||
| By: | /s/ Lewis Moorehead | |||||
| Name: | Lewis Moorehead | |||||
| Title: | Vice President of Finance and Treasurer | |||||
| GUARANTORS: | SQUARE BOX SYSTEMS LIMITED | |||||
| By: | /s/ Lewis Moorehead | |||||
| Name: | Lewis Moorehead | |||||
| Title: | Director | |||||
| QUANTUM LTO HOLDINGS, LLC | ||||||
| By: | /s/ Lewis Moorehead | |||||
| Name: | Lewis Moorehead | |||||
| Title: | Vice President of Finance and Treasurer | |||||
[Ninth Amendment to Term Loan Credit and Security Agreement]
| AGENT AND LENDERS: | BLUE TORCH FINANCE LLC, solely in its capacity as Agent and not in its individual capacity | |||||
| By: | /s/ Kevin Genda | |||||
| Name: | Kevin Genda | |||||
| Title: | Authorized Signatory | |||||
| BLUE TORCH CREDIT OPPORTUNITIES FUND II LP, as a Lender | ||||||
| By: | Blue Torch Credit Opportunities GP II LLC, its general partner | |||||
| By: | KPG BTC Management LLC, its sole member | |||||
| By: | /s/ Kevin Genda | |||||
| Name: | Kevin Genda | |||||
| Title: | Authorized Signatory | |||||
| BTC HOLDINGS SBAF FUND LLC, as a Lender | ||||||
| By: | Blue Torch Credit Opportunities SBAF Fund LP, its sole member | |||||
| By: | Blue Torch Credit Opportunities SBAF GP LLC, its general partner | |||||
| By: | KPG BTC Management LLC, its sole member | |||||
| By: | /s/ Kevin Genda | |||||
| Name: | Kevin Genda | |||||
| Title: | Authorized Signatory | |||||
| BTC HOLDINGS KRS FUND LLC, as a Lender | ||||||
| By: | Blue Torch Credit Opportunities KRS Fund LP, its sole member | |||||
| By: | Blue Torch Credit Opportunities KRS GP LLC, its general partner | |||||
| By: | KPG BTC Management LLC, its sole member | |||||
| By: | /s/ Kevin Genda | |||||
| Name: | Kevin Genda | |||||
| Title: | Authorized Signatory | |||||
[Ninth Amendment to Term Loan Credit and Security Agreement]
| BLUE TORCH OFFSHORE CREDIT OPPORTUNITIES MASTER FUND II LP, as a Lender | ||||||
| By: | Blue Torch Offshore Credit Opportunities GP II LLC, its General Partner | |||||
| By: | KPG BTC Management LLC, its sole member | |||||
| By: | /s/ Kevin Genda | |||||
| Name: | Kevin Genda | |||||
| Title: | Authorized Signatory | |||||
| BTC HOLDINGS SC FUND LLC, as a Lender | ||||||
| By: | Blue Torch Credit Opportunities SC Master Fund LP, its sole member | |||||
| By: | Blue Torch Credit Opportunities SC GP LLC, its general partner | |||||
| By: | KPG BTC Management LLC, its sole member | |||||
| By: | /s/ Kevin Genda | |||||
| Name: | Kevin Genda | |||||
| Title: | Authorized Signatory | |||||
[Ninth Amendment to Term Loan Credit and Security Agreement]
| OC III LVS XXXIII LP, as a Lender | ||||||
| By: | By: OC III GP II LLC, its general partner | |||||
| By: | /s/ Adam L. Gubner | |||||
| Name: | Adam L. Gubner | |||||
| Title: | Authorized Person | |||||
| CO FINANCE LVS XVII LLC, as a Lender | ||||||
| By: | /s/ Geoff Jones | |||||
| Name: | Geoff Jones | |||||
| Title: | Authorized Person | |||||
[Ninth Amendment to Term Loan Credit and Security Agreement]