FOURTH AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT between AEROCENTURY CORP., as Borrower THE FINANCIAL INSTITUTIONS PARTIES HERETO FROM TIME TO TIME, as Lenders and MUFG UNION BANK, N.A., as Administrative Agent May 1, 2020
EXHIBIT 10.1
FOURTH AMENDED AND RESTATED
between
as
Borrower
THE FINANCIAL INSTITUTIONS PARTIES HERETO
FROM
TIME TO TIME,
as
Lenders
and
MUFG UNION BANK, N.A.,
as
Administrative Agent
May 1, 2020
TABLE OF CONTENTS
Page
12. MISCELLANEOUS 1
13. AGENT 1
14. COMMITMENT
COSTS AND RELATED MATTERS. 1
INDEX
OF SCHEDULES AND EXHIBITS
Schedule
A
Term Loan
Commitment – Pro Rata Share
Schedule
1.1a
[Reserved]
Schedule
1.1b
Eligible Leases as
of the Closing Date
Schedule
1.1c
Equipment
Schedule
1.1d
Excluded
Assets
Schedule
1.1e
Material
Contracts
Schedule
1.1f
Permitted
Indebtedness
Schedule
1.1g
Permitted
Liens/Liens of Record
Schedule
1.1h
Schedule of
Documents
Schedule
1.1i
[Reserved]
Schedule
5.2
Executive Offices;
Corporate or Other Names; Conduct of Business
Schedule
5.7
No Other
Liabilities; No Material Adverse Changes
Schedule
5.9
Trade
Names
Schedule
5.10
Litigation
Schedule
5.17
Hazardous
Materials
Schedule
5.19
Insurance
Schedule
5.22
Depreciation
Policies
Schedule
5.28
Deposit
Accounts
Schedule
6.4
Insurance as of the
Closing Date
Schedule
7.13
Indebtedness and
Guaranteed Indebtedness existing on the Closing Date
Schedule
7.19
Investments
Existing as of the Closing Date
Schedule
8.3
Form of Maintenance
Expense Report
Schedule
8.9
Form of Bid Summary
Report
Exhibit
A
[Reserved]
Exhibit
B
[Reserved]
Exhibit
C
Form of Compliance
Certificate
Exhibit
D
Form of Commitment
Assignment and Acceptance
Exhibit
E
[Reserved]
Exhibit
F
[Reserved]
Exhibit
G
[Reserved]
Exhibit
H
[Reserved]
Exhibit
I
Form of
Placard
FOURTH AMENDED AND RESTATED
THIS FOURTH AMENDED AND RESTATED LOAN AND
SECURITY AGREEMENT (“Agreement”), is entered
into as of May 1, 2020, between AEROCENTURY CORP., a Delaware
corporation (“Borrower”), MUFG UNION
BANK, N.A., together with any other Lender hereunder from time to
time (collectively, the “Lenders” and
individually, a “Lender”), the Lenders,
and MUFG UNION BANK, N.A., as administrative agent (in such
capacity, “Agent”), effective as of
the Closing Date, with reference to the following
facts:
RECITALS
Borrower is in the
business of purchasing and leasing aircraft and aircraft engines
and equipment.
Pursuant to that
certain Third Amended and Restated Loan and Security Agreement
dated as of February, 2019, (as amended from time to time, the
“Existing Credit
Agreement”) by and among Borrower, the Lenders, and
MUFG Union Bank, N.A., as administrative agent for the Lenders, the
Lenders agreed to make available to Borrower a revolving credit
facility (the “Existing Loan”), to be
used for the purpose of refinancing existing revolving debt,
acquiring aircraft and aircraft engines, and supporting
Borrower’s working capital needs and general corporate
purposes.
The
Existing Credit Agreement has been amended by that (i) Forbearance
Agreement dated as of October 28, 2019 (as amended, the
“Prior Forbearance
Agreement”), (ii) First Amendment of Forbearance
Agreement and First Amendment to Credit Agreement dated as of
November 13, 2019 (the “First Amendment”),
(iii) Second Amendment to Credit Agreement and Consent for
Sale of Collateral dated as of November 26, 2019 (the
“Second
Amendment”), (iv) Temporary Waiver and Consent
and Third Amendment to Credit Agreement dated as of December 4,
2019 (the “Third
Amendment”), (v) Second Amendment to Forbearance
Agreement and Fourth Amendment to Credit Agreement dated as of
December 12, 2019 (the “Fourth Amendment”), and
(vi) Consent to Paycheck Protection Program dated as of April
16, 2020.
Defaults and Events
of Default have occurred under the Existing Credit Agreement, which
Defaults and Events of Default (collectively, the
“Noticed Events of
Default”) are specifically identified in
the Notice of Default;
Reservation of Rights Letters dated as of October 15, 2019,
December 3, 2019, January 3, 2020, February 13, 2020, March
16, 2020 and April 7, 2020 and delivered by Agent to Borrower and
its Subsidiary guarantors (the “Reservation of Rights
Letters”) (such Noticed Events of Default other than
that specified in the January 3, 2020 Reservation of Right Letter
(which was subsequently cured), collectively, the
“Specified Events of
Default”).
A
Forbearance Termination Event (as defined in the Prior Forbearance
Agreement) occurred on December 30, 2019, thereby causing a
Forbearance Termination Date (as defined in the Prior Forbearance
Agreement) to occur on such date.
As of
April 1, 2020, the aggregate principal amount outstanding of the
Existing Loan is $83,514,823.64 (which amount does not take into
account the capitalized interest for April 2020 to be added to the
principal on May 1, 2020).
Additionally,
Borrower and MUFG Bank, Ltd., as a Swap Contract Counterparty
(“MUFG
Bank”), entered into that ISDA 2002 Master Agreement
dated as of March 12, 2019 with respect to certain Swap Contracts
(the “MUFG Bank Swap
Contracts”). Pursuant to the Existing Credit Agreement
all of Borrower’s liability and obligations under the MUFG
Bank Swap Contracts constitute Lender Hedging Obligations secured
by the Collateral. On March 10, 2020, MUFG Bank delivered to
Borrower a Notice of Default and Declaration of Early Termination
Date of Swap Contracts (the “First ISDA Notice”),
notifying Borrower of the election of MUFG Bank (as the
nondefaulting party) to designate an Early Termination Date (as
defined therein) as a result of an event of default under the ISDA
Agreement and close out the transactions outstanding thereunder. On
March 12, 2020, MUFG Bank provided Borrower Notice of Early
Termination Amount Due dated as of March 12, 2020 (the
“Second ISDA
Notice” and, together with the First ISDA Notice, the
“ISDA
Notices”), notifying Borrower of Early Termination
Amount (as defined therein) due in the amount of $3,075,267.66 (the
“MUFG Bank Swap
Termination Value”). Borrower’s obligations and
liability to MUFG Bank as described in the ISDA Notices, including
the obligation to pay such Early Termination Value, continue to be
hereinafter secured by the Collateral.
Borrower has
requested that Agent and Lenders amend and restate the Existing
Credit Agreement in its entirety (without novation) to grant
Borrower a temporary forbearance with respect to the Specified
Events of Default referenced in Recital D above and NordLB
Specified Event of Default (hereinafter defined), if any, and amend
the Existing Credit Agreement pursuant to the terms hereof,
including to convert the Existing Loan to a term loan, and make
other amendments, all as set forth herein.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto covenant and agree as
follows:
. As
used in this Agreement, the following terms shall have the
respective meanings set forth below:
“Account Control
Agreement(s)” means any agreement entered into, in a
form satisfactory to Agent, by and among Agent, Borrower or its
Subsidiary and a depository bank or other institution in which
Borrower or such Subsidiary maintains a deposit account, effective
to grant “control” (as defined under the UCC) over such
account to Agent.
“Account Debtor” means any
Person who is obligated under an Account.
“Accounts” means all
“accounts,” as such term is defined in the UCC, now
owned or hereafter acquired by Borrower, including (a) all accounts
receivable, payments and pre-payments under Leases, other
receivables, book debts and other forms of obligations (other than
forms of obligations evidenced by chattel paper, documents or
instruments), whether arising out of goods sold or services
rendered by it or from any other transaction (including any such
obligations that may be characterized as an account or contract
right under the UCC), (b) all purchase orders or receipts for goods
or services, (c) all rights to any goods represented by any of the
foregoing (including unpaid sellers’ rights of rescission,
reclamation and stoppage in transit and rights to returned,
reclaimed or repossessed goods), (d) all monies due or to become
due to Borrower under all purchase orders and contracts for the
sale of goods or the performance of services or both by Borrower or
in connection with any other transaction (whether or not yet earned
by performance on the part of Borrower) now or hereafter in
existence, including the right to receive the proceeds of said
purchase orders and contracts, and (e) all collateral security and
guaranties of any kind, now or hereafter in existence, given by any
Person with respect to any of the foregoing.
“Acquisition” means any
transaction, or any series of related transactions, consummated
after the Closing Date, by which Borrower and/or any of its
Subsidiaries directly or indirectly
(a) acquires any ongoing business or all or substantially all of
the assets of any Person engaged in any ongoing business, whether
through purchase of assets, merger or otherwise, (b) acquires
control of securities of a Person engaged in an ongoing business
representing more than 50% of the ordinary voting power for the
election of directors or other governing position if the business
affairs of such Person are managed by a board of directors or other
governing body or (c) acquires control of more than 50% of the
ownership interest in any partnership, joint venture, limited
liability company, business trust or other Person engaged in an
ongoing business that is not managed by a board of directors or
other governing body.
“ACY 15129” means ACY SN
15129 LLC, a Delaware limited liability company.
“Affected Financial
Institution” means (a) any EEA Financial Institution
or (b) any UK Financial Institution.
“Affiliate” means, with
respect to any Person, another Person that, directly or indirectly,
Controls, or is Controlled by or is under common Control with such
other Person. For the purpose of this definition,
“Control” or “Controlled” means the
possession, directly or indirectly, of the power to direct or cause
the direction of its management or policies, whether through the
ownership of voting securities, by contract or
otherwise.
“Agent” or
“Administrative
Agent” means MUFG Union Bank, N.A. when acting in its
capacity as Agent under any of the Loan Documents, or any successor
Agent.
“Agreement” means this
Fourth Amended and Restated Loan and Security Agreement, as the
same may, from time to time, be amended, supplemented, modified or
restated.
“Aircraft” means each
aircraft purchased by Borrower described in a Mortgage, together
with any and all Parts (including Engines) which are either
incorporated or installed in or attached to such aircraft’s
airframe or required to be subject to the lien and security
interest of such Mortgage.
“Aircraft 238” means the
Bombardier Aircraft model Dash 8-311 bearing manufacturer’s
serial number 238, along with two Engines installed thereon
(currently identified as two (2) ▇▇▇▇▇ & ▇▇▇▇▇▇▇ Canada model
PW123 aircraft engines bearing manufacturer’s serial numbers
PCE-AE0160 and AE-0164.
“Alternative Dispute Resolution
Agreement” means one or more Alternative Dispute
Resolution Agreement(s) executed by Agent, each Lender, Borrower
and, if applicable, Subsidiary, in connection with the
Loans.
“Anti-Corruption Laws”
means all laws, rules, and regulations of any jurisdiction
applicable to Borrower or its Subsidiaries from time to time
concerning or relating to bribery or corruption.
“Applicable Base Rate”
means the percentage as calculated in Section 2.2.1(a).
“Applicable Base Rate Cash
Margin” means (a) with respect to the Initial Period,
zero percent (0.00%), and (b) with respect to any other period
after the end of the Initial Period, one percent
(1.00%).
“Applicable Base Rate
Margin” means, for any period, the sum of (a) the
Applicable Base Rate Cash Margin for such period and (b) the
Applicable Base Rate PIK Margin for such period.
“Applicable Base Rate PIK
Margin” means (a) with respect to the Initial Period,
five and a quarter percent (5.25%), and (b) with respect to any
other period after the end of the Initial Period, four and a
quarter percent (4.25%).
“Applicable Law” means, in
respect of any Person, all provisions of constitutions, statutes,
rules, regulations and orders of governmental bodies or regulatory
agencies applicable to such Person, and all orders and decrees of
all courts and arbitrators in proceedings or actions to which the
Person in question is a party or by which it or its properties are
bound.
“Appraisal” means (i) a
desktop appraisal providing appraisal for base values, market
values, maintenance adjusted base values, maintenance adjusted
current market values, 180-day orderly liquidation values (for
Off-Lease aircraft only) and lease-adjusted current market values,
or (i) if a Default exists, such other type of appraisal
(e.g., extended desktop,
visual inspection) as shall be required by Agent, of an item of
Equipment or Excluded Asset to determine the appraised value
thereof, performed by an Appraiser retained by Agent on behalf of
the Lenders.
“Appraiser” means ICF
SH&E, Inc., AVITAS or any other independent appraiser selected
by Agent.
“APU” means, whether or
not installed on an airframe, the auxiliary power unit of the
manufacture and model described in any Mortgage, together with any
and all modules and Parts which are either incorporated or
installed from time to time in or attached to such
APU.
“Assets” means all of
Borrower’s assets and property, whether now existing or owned
or hereafter created or acquired, and wherever located, including,
but not limited to:
all
accounts, chattel paper (including tangible and electronic chattel
paper), contract rights, deposit accounts, documents (including
negotiable documents), equipment (including the Equipment and all
accessions and additions thereto, including at any time all
Propellers, APUs and Landing Gear, and all parts, components,
equipment, instruments, appliances, avionics, radio and radar
devices, cargo handling systems and loose equipment that are at
such time incorporated or installed in or attached thereto or to an
Aircraft or Engine), general intangibles (including payment
intangibles and software), goods (including fixtures), instruments
(including promissory notes), inventory (including all goods held
for sale or lease or to be furnished under a contract of service,
and including returns and repossessions), investment property
(including securities and securities entitlements), leases, letter
of credit rights, money, and all of Borrower’s Books and
Records with respect to any of the foregoing, and the computers and
equipment containing said Books and Records;
all
common law and statutory copyrights and copyright registrations,
applications for registration, now existing or hereafter arising,
in the United States of America or in any foreign jurisdiction,
obtained or to be obtained on or in connection with any of the
forgoing, or any parts thereof or any underlying or component
elements of any of the forgoing, together with the right to
copyright and all rights to renew or extend such copyrights and the
right (but not the obligation) of Agent to ▇▇▇ in its own name
and/or in the name of the Borrower for past, present and future
infringements of copyright;
all
trademarks, service marks, trade names and service names and the
goodwill associated therewith, together with the right to trademark
and all rights to renew or extend such trademarks and the right
(but not the obligation) of Agent to ▇▇▇ in its own name and/or in
the name of the Borrower for past, present and future infringements
of trademark;
all (i)
patents and patent applications filed in the United States Patent
and Trademark Office or any similar office of any foreign
jurisdiction, and interests under patent license agreements,
including, without limitation, the inventions and improvements
described and claimed therein, (ii) licenses pertaining to any
patent whether Borrower is licensor or licensee, (iii) income,
royalties, damages, payments, accounts and accounts receivable now
or hereafter due and/or payable under and with respect thereto,
including, without limitation, damages and payments for past,
present or future infringements thereof, (iv) right (but not the
obligation) to ▇▇▇ in the name of Borrower and/or in the name of
Agent for past, present and future infringements thereof, (v)
rights corresponding thereto throughout the world in all
jurisdictions in which such patents have been issued or applied
for, and (vi) reissues, divisions, continuations, renewals,
extensions and continuations-in-part with respect to any of the
foregoing; and
any and
all cash proceeds and/or noncash proceeds of any of the foregoing,
including, without limitation, insurance proceeds, and all
supporting obligations and the security therefor or for any right
to payment. All terms above have the meanings given to them in the
New York Uniform Commercial Code, as amended or supplemented from
time to time.
“Authorized Signatory”
means (i) with respect to any Compliance Certificates delivered to
Agent hereunder, (a) the chief executive officer, (b) the
president, or (c) the chief financial officer or deputy financial
officer, in each case of Borrower, and (ii) with respect to all
other documents required to be executed by Borrower and delivered
to Agent and/or Lenders hereunder, each of the foregoing persons or
such other senior personnel of Borrower as may be duly authorized
and designated in writing by Borrower to execute documents,
agreements, and instruments on behalf of Borrower and to pledge
Borrower’s real and personal property.
“Aviation Asset
Disposition” has the meaning assigned thereto in
Section 6.17.
“Aviation Asset
Requirements” means, at any time, an item of Equipment
that meets the following criteria:
the
purchase price of which has been paid in full and it is not subject
to any other financing;
as to
which an Equipment Owner or Lessor has good and marketable title,
and on which Agent has a fully perfected first priority Lien and
which is not subject to any other Lien other than Permitted
Liens;
as to
which, if owned by Owner Trustee, the Borrower shall have executed
and delivered to Agent a Beneficial Interest Pledge Agreement
covering, among other things, the Borrower’s Beneficial
Interest in the owner trust which owns such item(s) of Equipment
and/or Lease, and as to which the Owner Trustee shall have executed
and delivered to Agent an (x) Owner Trustee Mortgage covering,
among other things, such items of Equipment and/or Lease, (y) a
Trust Agreement and (z) an Owner Trustee Guaranty;
as to
which the Equipment Owner or Lessor shall have executed and
delivered to Agent and/or filed (i) a Mortgage covering, among
other things, such items of Equipment and/or Lease and (ii) the
other documentation required in respect of Equipment;
with
respect to items of Equipment, it has not suffered an Event of
Loss, it is being used solely for lawful purposes and in the
ordinary course of business of the Equipment Owner;
in the
case of Equipment subject to Lease, it is insured against loss by
either the Equipment Owner or the Lessee in accordance with this
Agreement and industry practice; and
“Aviation Authority” means
the FAA, the Joint Airworthiness Authorities of the European Union
/European Aviation Safety Agency and/or any other Governmental
Authority which, from time to time, has control or supervision of
civil aviation or has jurisdiction over the airworthiness,
operation and/or maintenance of an item of Equipment.
“Bail-In Action” means the
exercise of any Write-Down and Conversion Powers by the applicable
Resolution Authority in respect of any liability of an Affected
Financial Institution.
“Bail-In Legislation”
means, (a) 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,
regulation rule or requirement for such EEA Member Country from
time to time which is described in the EU Bail-In Legislation
Schedule and (b) with respect to the United Kingdom, Part I of the
United Kingdom Banking Act 2009 (as amended from time to time) and
any other law, regulation or rule applicable in the United Kingdom
relating to the resolution of unsound or failing banks, investment
firms or other financial institutions or their affiliates (other
than through liquidation, administration or other insolvency
proceedings).
“Bank Account Report” has
the meaning assigned thereto in Section 8.7.
“Bankruptcy Code” means
the Bankruptcy Code (11 U.S.C. Sections 101 et seq.).
“Base Rate” means the
highest of (i) the
rate of interest most recently announced by Agent as to its U.S.
dollar “Reference Rate”, (ii) the Federal Funds Rate
plus one-half of one percent (0.50%); and (iii) three and a
quarter percent (3.25%).
“Base Rate Interest Payment
Date” shall have the meaning assigned thereto in
Section 2.2.1(a)(i).
“Base Rate Loan” means a
Term Loan made pursuant to this Agreement.
“Beneficial Interest”
means a beneficial interest in a trust which owns one or more items
of Equipment.
“Beneficial Interest Pledge
Agreement” means a Beneficial Interest Pledge
Agreement, to be entered into among Borrower, Owner Trustee, and
Agent, whereby Borrower pledges to Agent, as security for certain
obligations under this Agreement, all of the beneficial interest of
Borrower, as beneficial owner under a particular Trust
Agreement.
“Beneficial Ownership
Certification” means a certification regarding
beneficial ownership or control as required by the Beneficial
Ownership Regulation.
“Beneficial Ownership
Regulation” means 31 C.F.R. §
1010.230.
“Books and Records” means
all books, records, board minutes, contracts, licenses, insurance
policies, environmental audits, business plans, files, accounting
books and records, Financial Statements (actual and pro forma), and
filings with Governmental Authorities.
“Borrower” has the meaning
assigned thereto in the introductory paragraph hereto.
“Business Day” means any
day that is not a Saturday, Sunday, or other day on which banks in
the State of California are authorized or required to
close.
“Cape Town Convention”
means the official English language texts of the “Convention
on International Interests in Mobile Equipment” and the
“Protocol to the Convention on International Interests in
Mobile Equipment on Matters Specific to Aircraft Equipment”,
both of which were signed in Cape Town, South Africa on November
16, 2001, and including the Regulations for the International
Registry and the Procedures for the International Registry, as
promulgated thereunder.
“Cape Town Eligible Lease”
means those certain Leases which create International Interests
under the Cape Town Convention.
“Capital Lease
Obligations” means all monetary obligations of a
Person under any leasing or similar arrangement which, in
accordance with GAAP, is classified as a capital
lease.
“CARES
Act” means the Coronavirus Aid, Relief, and Economic Security
Act, H.R. 748.
“Cash” means, when used in
connection with any Person, all monetary and non-monetary items
owned by that Person that are treated as cash in accordance with
GAAP, consistently applied.
“Cash Equivalents” means,
when used in connection with any Person, that Person’s
Investments in:
Government
Securities due within one year after the date of the making of the
Investment;
readily
marketable direct obligations of any State of the United States of
America or any political subdivision of any such State or any
public agency or instrumentality thereof given on the date of such
Investment a credit rating of at least AA by ▇▇▇▇▇’▇
Investors Service, Inc. or AA by Standard & Poor’s Rating
Group (a division of McGraw Hill, Inc.), in each case due within
one year from the making of the Investment;
certificates of
deposit issued by, bank deposits in, Eurodollar deposits through,
bankers’ acceptances of, and repurchase agreements covering
Government Securities executed by Lender or any bank incorporated
under the Applicable Law of the United States of America, any State
thereof or the District of Columbia and having on the date of such
Investment combined capital, surplus and undivided profits of at
least $250,000,000, or total assets of at least $5,000,000,000, in
each case due within one year after the date of the making of the
Investment;
certificates of
deposit issued by, bank deposits in, Eurodollar deposits through,
bankers’ acceptances of, and repurchase agreements covering
Government Securities executed by Lender or any branch or office
located in the United States of America of a bank incorporated
under the Applicable Law of any jurisdiction outside the United
States of America having on the date of such Investment combined
capital, surplus and undivided profits of at least $500,000,000, or
total assets of at least $15,000,000,000, in each case due within
one year after the date of the making of the
Investment;
repurchase
agreements covering Government Securities executed by a broker or
dealer registered under Section 15(b) of the Securities Exchange
Act of 1934, as amended, having on the date of the Investment
capital of at least $50,000,000, due within ninety (90) days after
the date of the making of the Investment; provided that the maker of the
Investment receives written confirmation of the transfer to it of
record ownership of the Government Securities on the books of a
“primary dealer” in such Government Securities or on
the books of such registered broker or dealer, as soon as
practicable after the making of the Investment;
readily
marketable commercial paper or other debt securities issued by
corporations doing business in and incorporated under the
Applicable Law of the United States of America or any State thereof
or of any corporation that is the holding company for a bank
described in clause (c) or (d) above given on the date of such
Investment a credit rating of at least P 1 by ▇▇▇▇▇’▇
Investors Service, Inc. or A 1 by Standard & Poor’s
Rating Group (a division of McGraw Hill, Inc.), in each case due
within one year after the date of the making of the
Investment;
“money market
preferred stock” issued by a corporation incorporated under
the Applicable Law of the United States of America or any State
thereof (i) given on the date of such Investment a credit rating of
at least AA by ▇▇▇▇▇’▇ Investors Service, Inc. and AA by
Standard & Poor’s Rating Group (a division of McGraw
Hill, Inc.), in each case having an investment period not exceeding
fifty (50) days or (ii) to the extent that investors therein have
the benefit of a standby letter of credit issued by Lender or a
bank described in clauses (c) or (d) above; provided that (y) the amount of
all such Investments issued by the same issuer does not exceed
$5,000,000 and (z) the aggregate amount of all such Investments
does not exceed $15,000,000;
a
readily redeemable “money market mutual fund” sponsored
by a bank described in clause (c) or (d) hereof, or a registered
broker or dealer described in clause (e) hereof, that has and
maintains an investment policy limiting its investments primarily
to instruments of the types described in clauses (a) through (g)
hereof and given on the date of such Investment a credit rating of
at least AA by ▇▇▇▇▇’▇ Investors Service, Inc. and AA by
Standard & Poor’s Rating Group (a division of McGraw
Hill, Inc.); and
corporate notes or
bonds having an original term to maturity of not more than one year
issued by a corporation incorporated under the Applicable Law of
the United States of America, or a participation interest therein;
provided that (i)
commercial paper issued by such corporation is given on the date of
such Investment a credit rating of at least AA by ▇▇▇▇▇’▇
Investors Service, Inc. and AA by Standard & Poor’s
Rating Group (a division of McGraw Hill, Inc.), (ii) the amount of
all such Investments issued by the same issuer does not exceed
$5,000,000 and (iii) the aggregate amount of all such Investments
does not exceed $15,000,000.
“Cash Interest” means the
Cash portion of the interest that is due and payable pursuant to
the terms hereof.
“Cash Flow Budget” has the
meaning assigned thereto in Section 8.2.
“Cash Flow Variance
Report” has the meaning assigned thereto in
Section 8.2.
“Change in Control” means
(a) any transaction or series of related transactions in which any
Unrelated Person or two or more Unrelated Persons acting in concert
acquire beneficial ownership (within the meaning of Rule 13d
3(a)(1) under the Securities Exchange Act of 1934, as amended),
directly or indirectly, of 20% or more of the ownership interests
in Borrower, (b) Borrower consolidates with or merges into another
Person or conveys, transfers or leases its properties and assets
substantially as an entirety to any Person or any Person
consolidates with or merges into Borrower, in either event pursuant
to a transaction in which the ownership interests in Borrower are
changed into or exchanged for cash, securities or other property,
with the effect that any Unrelated Person becomes the beneficial
owner, directly or indirectly, of 20% or more of ownership
interests in Borrower or that the Persons who were the holders of
ownership interests in Borrower immediately prior to the
transaction hold less than 80% of the interests of the surviving
entity after the transaction, (c) any change in an executive
officer of Borrower (provided no change in control shall occur upon
the death or incapacitation of an executive officer), or (d) a
“change in control” as defined in any document
governing Indebtedness of Borrower which gives the holders of such
Indebtedness the right to accelerate or otherwise require payment
of such Indebtedness prior to the maturity date thereof. For
purposes of the foregoing, the term “Unrelated Person” means
any Person other than (i) any Affiliate of any thereof and members
of the immediate family of any thereof, (ii) a Subsidiary of
Borrower or (iii) an employee stock ownership plan or other
employee benefit plan covering the employees of Borrower and its
Subsidiaries.
“Charges” means all
Federal, state, county, city, municipal, local, foreign or other
governmental Taxes (including Taxes owed to PBGC at the time due
and payable), levies, assessments, charges, liens, and all
additional charges, interest, penalties, expenses, claims or
encumbrances upon or relating to (a) the Collateral, (b) the
Obligations, (c) the employees, payroll, income or gross receipts
of Borrower, (d) the ownership or use of any assets by Borrower, or
(e) any other aspect of Borrower’s business.
“Chattel Paper” means all
“chattel paper,” as such term is defined in the UCC,
now owned or hereafter acquired by any Person, wherever located,
but excluding Leases.
“Claim” means any and all
suits, actions, or proceedings in any court or forum, at law, in
equity or otherwise; costs, fines, deficiencies, or penalties;
asserted claims or demands by any Person; arbitration demands,
proceedings or awards; damages, losses, liabilities and expenses
(including reasonable attorneys’ fees and disbursements and
other costs of collection, defense or appeal); enforcement of
rights and remedies; or criminal, civil or regulatory
investigations.
“Closing Date” means the
time and Business Day on which the conditions set forth in
Section 4.1 are satisfied or
waived.
"Code" means the Internal
Revenue Code of 1986, as amended from time to time.
“Collateral” means all of
the collateral covered by the Collateral Documents.
“Collateral Documents”
means, collectively, all of those documents set forth in
Section 3.1,
including without limitation the following and any agreements,
documents, and instruments executed, filed or registered in
connection therewith: this Agreement, to the extent it constitutes
a security agreement, the Mortgage, the Owner Trustee Mortgage, any
Security Agreement, UCC financing statements, a Beneficial Interest
Pledge Agreement (if any), an Owner Trustee Guaranty (if any), and
such other agreements, pledges and security instruments, and all
amendments thereto, instruments and documents as Agent may
reasonably require pursuant to this Agreement.
“Commitment Assignment and
Acceptance” means a commitment assignment and
acceptance substantially in the form of Exhibit D.
“Compliance Certificate”
means a Compliance Certificate in the form attached hereto as
Exhibit C signed by an
Authorized Signatory.
“Contract” means,
individually and collectively, all contracts, leases, undertakings,
and agreements (other than rights evidenced by Chattel Paper,
Documents or Instruments) in or under which any Person may now or
hereafter have any right, title or interest, including any
agreement relating to the terms of payment or the terms of
performance of any Account.
“Contracting State” shall
have the meaning given to such term under Article 4 of the Cape
Town Convention.
“Contractual Obligation”
means, as to any Person, any provision of any outstanding security
issued by that Person or of any material agreement, instrument or
undertaking to which that Person is a party or by which it or any
of its property is bound.
“Credit Facility” means
the term loan provided hereunder in respect of the Term
Loans.
“Custodial Agreement”
means an agreement pursuant to which a Person is acting as
custodian for Borrower with respect to original “chattel
paper” or such other documents as may be addressed under such
agreement.
“Custodian” means any
custodian under the Custodial Agreement.
“Debt Instrument” has the
meaning assigned thereto in Section 9.1.14.
“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.
“Default” means any event
which, with the passage of time or notice or both, would, unless
cured or waived, become an Event of Default.
“Defaulting Lender” means
a Lender which (a) fails to fund any amounts due from such Lender
to Agent, another Lender or Borrower under this Agreement within
one (1) Business Day following written notice by the Agent of such
failure to fund, unless such Lender notifies the Agent and the
Borrower 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, provided such Lender shall cease
to be a “Defaulting Lender” immediately upon the cure
of such failure to fund, (b) has notified the Borrower or the Agent
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
Lender’s obligation to fund a Loan hereunder and states that
such position is based on such Lender’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), or (c) has,
or has a direct or indirect parent company that has, (i) become the
subject of a proceeding under the Bankruptcy Code or any other
similar 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 Federal Deposit Insurance Corporation 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 Agent that a Lender is a Defaulting Lender under
any one or more of clauses (a) through (c) above shall be
conclusive and binding absent manifest error, and such Lender shall
be deemed to be a Defaulting Lender upon delivery of written notice
of such determination to the Borrower and each Lender.
“Default Rate” means, for
the Initial Period or any period thereafter, a per annum default
rate equal to the Applicable Base Rate for such period,
plus two percent
(2.0%) (whereby the Applicable Base Rate Cash Margin is increased
by 2.0%).
“Deferred Interest” has
the meaning assigned thereto in Section 2.2.1(d).
“Disposition” has the
meaning assigned thereto in Section 7.5.
“Dispute” has the meaning
assigned thereto in Section 11.1.
“Distribution” means, with
respect to any shares of capital stock or membership interests or
any warrant or option to purchase an equity security or other
equity security issued by a Person, (a) the retirement, redemption,
purchase or other acquisition for Cash or for Property by such
Person of any such security, (b) the declaration or (without
duplication) payment by such Person of any dividend in Cash or in
Property on or with respect to any such security, (c) any
Investment by such Person in the holder of 5% or more of any such
security if a purpose of such Investment is to avoid
characterization of the transaction as a Distribution and (d) any
other payment in Cash or Property by such Person constituting a
distribution under Applicable Law with respect to such
security.
“Documents” means all
“documents,” as such term is defined in the UCC, now
owned or hereafter acquired by any Person, wherever located,
including all bills of lading, dock warrants, dock receipts,
warehouse receipts, and other documents of title, whether
negotiable or non-negotiable.
“Dollars” means lawful
currency 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 EEA Financial Institution.
“Electronic Transmission”
shall mean each document, instruction, authorization, file,
information and any other communication transmitted, posted or
otherwise made or communicated by e-mail or E-Fax, or otherwise to
or from an E-System or other equivalent service.
“Eligible Assignee” means
(a) another Lender (other than any Defaulting Lender), (b) with
respect to any Lender, any Affiliate of that Lender (other than any
Defaulting Lender), (c) any commercial bank having total assets of
$1,000,000,000 or more, (d) any (i) savings bank, savings and loan
association or similar financial institution or (ii) insurance
company engaged in the business of writing insurance which, in
either case (A) has total assets of $1,000,000,000 or more, (B) is
engaged in the business of lending money and extending credit under
Credit Facility substantially similar to those extended under this
Agreement and (C) is operationally and procedurally able to meet
the obligations of a Lender hereunder to the same degree as a
commercial bank and (e) any other financial institution (including
a mutual fund or other fund) having total assets of $1,000,000,000
or more which meets the requirements set forth in subclauses (B)
and (C) of clause (d) above; provided that each Eligible
Assignee must either (aa) be organized under the laws of the United
States of America, any State thereof or the District of Columbia or
(bb) be organized under the laws of the Cayman Islands or any
country which is a member of the Organization for Economic
Cooperation and Development, or a political subdivision of such a
country, and (i) act hereunder through a branch, agency or funding
office located in the United States of America and (ii) be exempt
from withholding of Tax on interest and deliver the documents
related thereto pursuant to Section 12.17.
“Eligible Lease” shall
mean a lease for Equipment to an unaffiliated Person in
which:
(a) Borrower
is the lessor of the Equipment;
(b) the
lease arose in the ordinary course of business of
Borrower;
(c) the
Equipment has been delivered to the Lessee (subject to the last
sentence of this definition) and is currently subject to the
lease;
(d) neither
the lease nor the Equipment is subject to any currently outstanding
assignment, claim, lien, security interest or other limitation on
the absolute title of Borrower;
(e) the
lease payments and maintenance reserves are not more than ten (10)
days past due with respect to any payment required thereby (for
clarity, the requirement in this clause (n) does not apply to the
Specified Leases);
(f) the
lease is freely assignable by the Lessor (with any notices or
consents required in connection therewith having been previously
obtained, and subject to any lease requirements concerning the net
worth of the assignee or restriction regarding assignment to a
lessee’s competitor) and prohibits assignment in whole or in
part by the Lessee thereof without the prior written consent of
Lessor;
(g) the
lease and the Equipment being leased constitute
Collateral;
(h) the
remaining lease term at the time of entry into the pool of the
Collateral is for a period of ten years or less;
(i) it
is a triple net contract and with respect to which the Lessee
thereunder is responsible for all payments in connection therewith,
including, but not limited to, payment of all Taxes (including
sales and use Taxes), insurance and maintenance expenses (or
payment of maintenance reserves in lieu thereof) and all other
expenses pertaining to the assets subject thereto;
it is a
non-cancelable lease and provides that the Lessee’s
obligations thereunder are absolute and unconditional and which
obligations are not, either pursuant to the terms of such Lease or
otherwise, subject to contingencies, defense, deduction, set-off,
reduction, claim or counterclaim of any kind whatsoever and as to
which no defenses, deductions, set offs, reductions, claims or
counterclaims exist or have been asserted by the Lessee or anyone
on its behalf and the Borrower has no obligations thereunder,
including, without limitation, any service or maintenance of the
related Equipment, other than the obligation to sell, lease or
finance the Equipment and grant a covenant of quiet enjoyment to
such Lessee; provided, however, that (i) in the case
of leases with terms of less than twelve months in which Borrower
may be responsible for maintenance and (ii) Borrower may assume the
obligation to pay some or all of the cost of engine overhaul,
airworthiness directives or manufacturer or government ordered
modifications required during the term of the Lease, so long as the
Lease states that such obligation is solely that of Borrower and
imposes no obligation on the Lenders, in their capacity as lenders
to Borrower, and Lessee’s only remedy for breach of the
obligation is an independent action against Borrower as Lessor, and
Lessee waives any and all right to offset such obligation against
lease payments owed Borrower;
the
Lessee is not a resident of, and the Equipment will not be subject
to the laws of any, foreign jurisdiction in which, in the sole
determination of Agent, the ability of Agent to perfect a first
priority security interest in the Equipment is unsatisfactory or
the ability of Agent to foreclose upon the Equipment and receive
possession to or sell said Equipment is
unsatisfactory;
with
respect to which the Borrower’s Books and Records are
accurate, complete and genuine;
it
requires the Lessee to comply with all maintenance, return,
alteration, replacement, pooling and sublease conditions as
typically found in leases for similar types of aircraft, engines or
equipment and as necessary to maintain at all times the
airworthiness certification and serviceability status of the
related Equipment pursuant to all applicable governmental and
regulatory requirements;
it
requires the Lessee to provide liability insurance, all risk ground
and flight coverage for damage or loss of the related Equipment,
and war risk insurance (if applicable), and with respect to which
Agent is named as loss payee;
it
requires the Lessee to provide confiscation and expropriation
insurance, with deductibles that are acceptable to Agent, for
Equipment operated (x) on routes with respect to which it is
customary for air carriers flying comparable routes to carry such
insurance or (y) in any area designated by companies providing such
coverage as a recognized or threatened war zone or area of
hostilities or an area where there is a substantial risk of
confiscation or expropriation, unless Agent has confirmed in
writing to the Borrower that, based on Agent’s assessment of
the credit quality of the Lessee and Lessee’s ability to
self-insure against such risk and Agent’s assessment of the
magnitude of the risk of such loss based on its conclusion
regarding the government having jurisdiction over the collateral,
such insurance is not necessary;
the
Lessee is not based in, and the Lease requires that the related
Equipment not be operated in, unless appropriate insurance as
determined by Agent is obtained, any country or any jurisdiction,
that would not be covered by or would void any insurance coverage
required hereunder, or any country which is subject to any United
States, the European Union or United Nations sanctions or the lease
to which would violate United States law, rule or regulation or
other restrictions;
the
sole original of which is in the possession of Agent or Custodian,
or, with respect to chattel paper, if there shall be more than one
original, then the sole counterpart which shall constitute
“chattel paper” for purposes of perfection by
possession under the UCC shall be in the possession of Agent or its
designee; and
the
Lessee under which is not a Subsidiary, employee, agent or other
Affiliate of the Borrower;
provided, that all of the
leases set forth on Schedule
1.1b as of the Closing Date are Eligible Leases except as
otherwise provided on such Schedule.
“Enforcement Actions”
means the exercise by Agent and the Lenders at any time of their
rights and remedies and to commence enforcement, litigation and
collection actions under the Existing Credit Agreement, this
Agreement, the other Loan Documents and applicable law, including
to set off funds and to declare to be immediately due and payable
the principal amount of the Loans now outstanding, all accrued
interest, fees and the other obligations of Borrower accrued under
the Existing Credit Agreement, this Agreement and the other Loan
Documents, other than as described in the last sentence of
Section 9.2.1 of the
Existing Credit Agreement and this Agreement commencing with the
word “provided” (but, for clarity, the right to apply
the Default Rate to the Loans is excluded from the definition of
Enforcement Action).
“Environmental Laws” means
any and all federal, state, local, and foreign statutes, Laws,
regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or
governmental restrictions, including all common law, relating to
pollution or the protection of health, safety or the environment or
the release of any materials into the environment, including those
related to Hazardous Materials, air emissions, discharges to waste
or public systems and health and safety matters
“Environmental Liabilities and
Costs” means all liabilities, obligations,
responsibilities, remedial actions, removal costs, losses, damages,
costs and expenses that relate to any health or safety condition
regulated under any Environmental Law or in connection with any
other environmental matter or Release, threatened Release, or the
presence of any Hazardous Material.
“Engine” means each engine
described in any Mortgage (each of which has 550 or more rated
takeoff horsepower or the equivalent of such horsepower), together
with any and all Parts which are either incorporated or installed
in or attached to such engine or required to be subject to the lien
and security interest of such Mortgage.
“Equipment” means new and
used regional Aircraft, including the attached Engines thereto and
new and used Leased Spare Engines, set forth in Schedule
1.1c except as otherwise provided therein.
“Equipment Owner” means
the Borrower or Owner Trustee.
“ERISA” means the Employee
Retirement Income Security Act of 1974 and the regulations
thereunder.
“ERISA Affiliate” means
any trade or business (whether or not incorporated) which is a
member of a “controlled group of corporations,” a group
of trades or businesses under “common control,” or an
“affiliated service group,” which includes Borrower
within the meaning of Sections 414(b), (c), (m) or (o) of the
Internal Revenue Code of 1986.
“E-System” shall mean any
electronic system and any other internet or extranet-based site,
whether such electronic system is owned, operated, hosted or
utilized by the Agent, any of its Affiliates or any other Person,
providing for access to data protected by passcodes or other
security system.
“EU Bail-In Legislation
Schedule” means the EU Bail-In Legislation Schedule
published by the Loan Market Association (or any successor person),
as in effect from time to time.
“Event of Default” means
any of the events specified in Section 9.1
and, unless otherwise specifically noted, shall include the
Specified Events of Default.
“Event of Loss”
means:
if an
item of Equipment is not subject to a Lease, any of the following
events:
the
actual or constructive total loss of such item of Equipment or the
agreed or compromised total loss of such item of
Equipment;
its
destruction, damage beyond economic repair or being rendered
permanently unfit for normal use for any reason whatsoever;
and
any
capture, condemnation, confiscation, requisition, purchase, seizure
or forfeiture of, or any taking for use or of title to, such item
of Equipment, in each case, that shall have resulted in the loss of
possession or title of such item of Equipment by the Lessor (other
than a requisition for use for not more than one hundred eighty
(180) days by the United States Government), or
if an
item of Equipment is subject to a Lease, any events defined as an
“Event of Loss,” “Casualty Occurrence” or
similar term in such Lease.
For
purposes of this Agreement, the date that an Event of Loss is
deemed to have occurred shall be as follows:
if an
item of Equipment is not subject to a Lease,
(x) in
the event of an actual loss of such item of Equipment, on the date
of such loss;
(y) in
the event of damage which results in a constructive or compromised
or arranged total loss of such item of Equipment, on the date of
the event giving rise to such damage;
(z) in
the case of an Event of Loss referred to in clause (a)(ii) above,
on the date of the occurrence of such event, or
if an
item of Equipment is subject to a Lease, at such times as are set
forth in such Lease of such item of Equipment for the foregoing
events.
In no
event will the Event of Loss date be later than the earlier to
occur of (i) the Borrower’s or Agent’s (as applicable)
receipt of insurance proceeds in respect of such Equipment or (ii)
the date that is ninety (90) days after the date of such loss,
damage or destruction.
“Excess Cash” means, as
the date of determination, if a positive number, the amount of the
Unrestricted Cash as of such date minus
$1,000,000.00.
“Excess Proceeds” has the
meaning set forth in Section 6.25.
“Excluded Assets” means
the Aircraft and associated Engines set forth on Schedule
1.1d while pledged as collateral for the Permitted Excluded
Subsidiary Financing.
“Excluded Subsidiaries”
means, so long as each such Person’s debt under the Excluded
Subsidiary Facility is outstanding, ACY SN 19002 Limited, a company
organized under the laws of the United Kingdom, ACY SN 19003
Limited, a company organized under the laws of the United Kingdom,
and ACY E-175 LLC, a Delaware limited liability
company.
“Excluded Subsidiary
Facility” means a term loan facility extended by
NordLB to one or more Excluded Subsidiaries in the aggregate
current principal amount of $30,033,489, secured by the Excluded
Assets.
“Excluded Swap Obligation”
means, with respect to any Guarantor, (x) as it relates to all or a
portion of any Swap Obligation if, and to the extent that, such
Swap Obligation (or any guaranty 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
Guarantor’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 guaranty of such Guarantor becomes effective with respect to
such Swap Obligation or (y) as it relates to all or a portion of
the grant by such Guarantor of a security interest, any Swap
Obligation if, and to the extent that, such Swap Obligation (or
such security interest in respect 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
Guarantor’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 security interest of such Guarantor becomes effective with
respect to such Swap Obligation. 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 guaranty or security interest
is or becomes illegal.
"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, U.S. 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 Term Loan Commitment pursuant to a
law in effect on the date on which (i) such Lender acquires such
interest in the Loan or Term Loan Commitment or (ii) such Lender
changes its lending office, except in each case to the extent that,
pursuant to Section 2.17,
amounts with respect to such Taxes were payable either to such
Lender's assignor immediately before such Lender acquired the
applicable interest in a Loan or Term Loan Commitment or to such
Lender immediately before it changed its lending office,
(c) Taxes attributable to such Recipient's failure to comply
with Section 2.17(f), and (d) any U.S. Federal
withholding Taxes imposed under FATCA.
“Exclusivity Milestone”
has the meaning assigned thereto in Section 6.22(b).
“Existing Credit
Agreement” has the meaning assigned thereto in the
Recitals.
“Existing Loan” has the
meaning assigned thereto in Recital B.
“Existing Mortgage” means
that certain Mortgage and Security Agreement dated as of April 28,
2010, as amended and restated by that Amended and Restated Mortgage
and Security Agreement dated as of June 17, 2013, Second
Amended and Restated Mortgage and Security Agreement dated as of
May 30, 2014, Third Amended and Restated Mortgage and Security
Agreement dated as of February 19, 2019, made by Borrower in favor
of Agent, and each mortgage supplement for each of the
foregoing.
“FAA” means the Federal
Aviation Administration or any Governmental Authority succeeding to
the functions thereof.
"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 agreement
entered into pursuant to Section 1471(b)(1) of the Code and
any fiscal or regulatory legislation, rules or practices adopted
pursuant to any intergovernmental agreement, treaty or convention
among Governmental Authorities and implementing such Sections of
the Code.
“Federal Funds Rate”
means, as of any date of determination, the rate set forth in the
weekly statistical release designated as H.15(519), or any
successor publication, published by the Federal Reserve Board
(including any such successor, “H.15(519)”) for such date
opposite the caption “Federal Funds (Effective)”. If
for any relevant date such rate is not yet published in H.15(519),
the rate for such date will be the rate set forth in the daily
statistical release designated as the Composite 3:30 p.m.
Quotations for U.S. Government Securities, or any successor
publication, published by the Federal Reserve Bank of New York
(including any such successor, the “Composite 3:30 p.m.
Quotation”) for such date under the caption
“Federal Funds Effective Rate”. If on any relevant date
the appropriate rate for such date is not yet published in either
H.15(519) or the Composite 3:30 p.m. Quotations, the rate for such
date will be the arithmetic mean of the rates for the last
transaction in overnight Federal funds arranged prior to 9:00 a.m.
(New York City time) on that date by each of three leading brokers
of Federal funds transactions in New York City selected by Agent.
For purposes of this Agreement, any change in the Base Rate due to
a change in the Federal Funds Rate shall be effective as of the
opening of business on the effective date of such
change.
“Field Examination” means
an inspection and/or audit of the Borrower, which Field Examination
may be conducted at Agent’s direction by Agent and any of its
officers, employees, and agents. The Field Examination may include,
without limitation, the review, audit, Appraisal, physical
verification, and such other reviews of the Equipment and
Borrower’s Books and Records in connection therewith as shall
be deemed appropriate by Agent in its sole discretion.
“Financial
Advisor/Consultant” has the meaning assigned thereto
in Section 4.1.11.
“Financial Statements”
means the income statement, balance sheet and statement of cash
flows of Borrower and its Subsidiaries, internally prepared for
each Fiscal Quarter and audited for each Fiscal Year, in each case
prepared in accordance with GAAP including the notes and schedules
thereto.
“First Amendment” has the
meaning assigned thereto in Recital C.
“First ISDA Notice” has
the meaning assigned thereto in Recital G.
“Fiscal Quarter” means any
of the quarterly accounting periods of Borrower, specifically
ending March 31, June 30, September 30, and December 31 of each
year.
“Fiscal Year” means the
twelve (12) month fiscal period of Borrower ending December 31 of
each year. Subsequent changes of the Fiscal Year of Borrower shall
not change the term “Fiscal Year” unless Agent shall
consent in writing to such change.
"Forbearance Period" has the
meaning assigned thereto in Section 16.2.1.
"Forbearance Termination Date"
has the meaning assigned thereto in Section 16.2.1.
"Forbearance Termination Event"
has the meaning assigned thereto in Section 16.2.1.
"Foreign Lender" means a Lender
that is resident or organized under the laws of a jurisdiction
other than the United States of America or any State thereof or the
District of Columbia.
“Fourth Amendment” has the
meaning assigned thereto in Recital C.
“Funded Debt” shall mean,
as of the last day of any Fiscal Quarter, all indebtedness,
liabilities, and obligations for which Borrower has recourse
liability, now existing or hereafter arising, for money borrowed by
Borrower or a Subsidiary whether or not evidenced by any note,
indenture, or agreement (including, without limitation, the Notes
and any indebtedness for money borrowed from an Affiliate), as
determined in accordance with GAAP, consistently
applied.
“GAAP” means generally
accepted accounting principles as in effect from time to time in
the United States, consistently applied.
“Governmental Authority”
means (a) any international, foreign, federal, state, county or
municipal government, or political subdivision thereof, (b) any
governmental or quasi-governmental agency, authority, board,
bureau, commission, department, instrumentality or public body,
including any Aviation Authority, or (c) any court or
administrative tribunal of competent jurisdiction.
“Government Securities”
means readily marketable (a) direct full faith and credit
obligations of the United States of America or obligations
guaranteed by the full faith and credit of the United States of
America and (b) obligations of an agency or instrumentality of, or
corporation owned, controlled or sponsored by, the United States of
America that are generally considered in the securities industry to
be implicit obligations of the United States of
America.
“Guaranteed Indebtedness”
means, with respect to any Person, any obligation of such Person
guaranteeing any indebtedness, lease, dividend, or other obligation
(“primary
obligations”) of any other Person (the
“primary
obligor”) in any manner, including any obligation or
arrangement of such Person (a) to purchase or repurchase any such
primary obligation, (b) to advance or supply funds (1) for the
purchase or payment of any such primary obligation, or (2) to
maintain working capital or equity capital of the primary obligor
or otherwise to maintain the net worth or solvency or any balance
sheet condition of the primary obligor, (c) to purchase property,
securities or services primarily for the purpose of assuring the
owner of any such primary obligation of the ability of the primary
obligor to make payment of such primary obligation, or (d) to
indemnify the owner of such primary obligation against loss in
respect thereof. The amount of any “Guaranteed
Indebtedness” at any time shall be deemed to be an amount
equal to the lesser at such time of (x) the stated or determinable
amount of the primary obligation in respect of which such
Guaranteed Indebtedness is made, and (y) the maximum amount for
which such Person may be liable pursuant to the terms of the
instrument embodying such Guaranteed Indebtedness; or, if not
stated or determinable, the maximum reasonably anticipated
liability (assuming full performance) in respect
thereof.
“Guarantor” means the
obligor under a Guaranty.
"Guaranty" means a Subsidiary
Guaranty, Owner Trustee Guaranty or any other any other instrument
of guaranty executed by any Person, in form and substance
satisfactory to Agent, with respect to the Obligations; in each
case either as originally executed or as it may from time to time
be supplemented, modified, amended, extended or
supplanted.
“Hazardous Material” means
any substance, material or waste, the generation, handling,
storage, treatment or disposal of which is regulated by any
Governmental Authority, or forms the bases of liability now or
hereafter under, any Environmental Law in any jurisdiction in which
Borrower has owned, leased, or operated real property or disposed
of hazardous materials.
“Immaterial Subsidiary”
means (i) JFC, (ii) ACY 15129, and (iii) any such
other Subsidiary as designated in writing by the Agent in its sole
discretion, so long as such Subsidiary in any of the forgoing
clauses (i) through (iii) does not (1) own any Assets;
(2) have any liabilities or (3) generate any revenue,
except that JFC may have the JFC Obligations and generate or hold
enough funds to pay the JFC Obligations.
“Indebtedness” means: (a)
with respect to Borrower, the Obligations; (b) all indebtedness of
Borrower for borrowed money or for the deferred purchase price of
property or services (including reimbursement and all other
obligations with respect to surety bonds, letters of credit and
bankers’ acceptances, whether or not matured); (c) all
obligations evidenced by notes, bonds, debentures or similar
instruments; (d) all indebtedness created or arising under any
conditional sale or other title retention agreements with respect
to property acquired by Borrower (even though the rights and
remedies of the seller or lender under such agreement in the event
of default are limited to repossession or sale of such property);
(e) all Capital Lease Obligations; (f) all Guaranteed Indebtedness;
(g) all Indebtedness referred to in clauses (b), (c), (d), (e) or
(f) above secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by)
any Lien upon or in property (including accounts and contract
rights) owned by such Person, even though such Person has not
assumed or become liable for the payment of such Indebtedness; (h)
all liabilities under Title IV of ERISA; (i) the net present value
of the non-cancelable payments owed by Borrower as lessee under any
lease which is qualified as an operating lease in accordance with
GAAP for engines, aircraft and engine parts, using a 10% discount
rate; (j) all Swap Obligations, and (k) all obligations with
respect to deposits or maintenance reserves to the extent not
supported by cash reserved specifically therefor; provided, however, that the term
Indebtedness shall not include trade accounts payable within ninety
(90) days of the date the respective goods are delivered or the
respective services are rendered.
“Indemnified Person” means
Agent and each Lender and each of the foregoing parties’
respective Affiliates and their officers, directors, employees,
agents and advisors.
“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
Borrower under any Loan Document and (b) to the extent not
otherwise described in (a), Other Taxes.
“Initial Period” means the
period from the Closing Date through June 30,
2020.
“Instruments” means all
“instruments,” as such term is defined in the UCC, now
owned or hereafter acquired by Borrower, wherever located,
including all certificated securities and all notes and other
evidences of indebtedness, other than instruments that constitute,
or are a part of a group of writings that constitute, Chattel
Paper.
“Intellectual Property”
means all of the following now owned or hereafter acquired by
Borrower: (a) patents, trademarks, trade dress, trade names,
service marks, copyrights, trade secrets and all other intellectual
property or Licenses thereof; and (b) all Proceeds of the
foregoing.
“Interest Payment Date”
means, as to any Base Rate Loan, the Base Rate Interest Payment
Date for such Base Rate Loan.
“International Interest”
shall have the meaning given to such term in the Cape Town
Convention.
“International Registry”
shall have the meaning given to such term in the Cape Town
Convention.
“Investment” means, when
used in connection with any Person, any investment by or of that
Person, whether by means of purchase or other acquisition of stock
or other securities of any other Person or by means of a loan,
advance creating a debt, capital contribution, guaranty or other
debt or equity participation or interest in any other Person,
including any
partnership and joint venture interests of such Person. The amount
of any Investment shall be the amount actually invested
(minus any return
of capital with respect to such Investment which has actually been
received in Cash or has been converted into Cash), without
adjustment for subsequent increases or decreases in the value of
such Investment.
“ISDA Notices” has the
meaning assigned thereto in Recital G.
“JFC” means JetFleet
Canada, a company organized under the laws of Canada, which is a
Subsidiary of JMC.
“JFC Bank Account” means
the bank account in the name of JFC in Canada as long as it does
not, at any one time, hold funds in excess of the amount necessary
to pay the JFC Obligations.
“JFC Obligations” means
ordinary course obligations of JFC for (i) one (1) technical
employee employed by it as of the Closing Date and while the
employment thereof continues thereafter, (ii) other minimal
cost related to maintaining the JFC Bank Account and tax filing and
reporting obligations, and (iii) such other de minimis
expenses necessary to maintain its corporate
existence.
“JHC” means JetFleet
Holding Corp., a California corporation.
“JMC” means JetFleet
Management Corp., a California corporation.
“JMC Management Agreement”
means that certain Second Amended and Restated Management Agreement
between Borrower and JMC entered into as of August 17, 2015, as
amended, or any successor agreement thereto.
“JMC Subordination
Agreement” means that certain Amended and Restated
Subordination Agreement (Management Agreement), dated as of
December 20, 2017, entered into by and among Borrower, JMC and
Agent with respect to the JMC Management Agreement, as such
agreement may be amended or restated from time to
time.
“Landing Gear” means,
whether or not installed on an airframe, each landing gear, (nose
gear and main gear), together with any and all modules and Parts
which are either incorporated or installed from time to time in or
attached to such Landing Gear.
“Late Payments” has the
meaning assigned thereto in Section 2.5.
“Lease” means, with
respect to an item of Equipment, any written lease agreement,
general terms agreement other similar arrangement, as may be in
effect between a Lessor, including an Equipment Owner, and a
Lessee, as such agreement or arrangement may be amended, modified,
extended, supplemented, assigned or novated from time to time in
accordance with the terms thereof and the Loan
Documents.
“Lease Event of Default”
means, for any Lease other than the Leases as of the Closing Date
with Silverstone Air Services, Skyward Express Limited and Croatia
Airlines of Aircraft bearing manufacturer’s serial numbers
406, 407, 4205 and 4211 (the “Specified Leases”),
respectively, the occurrence of any of the following:
(a) The
termination of such Lease prior to the date such Lease is scheduled
to expire in accordance with its terms;
(b) A
default by the Lessee under such Lease in the payment of any
installment of rent or a maintenance reserve amount that continues
for ten (10) days or more.
(b) A
default under such Lease other than that described in clause (b)
above which, through the passage of time or otherwise, has become
an “event of default” (however denominated) under such
Lease that gives rise to the right to terminate such
Lease.
(d) Any
amendment of such Lease not in compliance with Section 7.21
hereof.
“Leased Spare Engine”
means an Engine that is not attached to an airframe and leased by
Lessor to Lessee as a standalone engine for installation on an
airframe or as a spare.
“Lender” means each Lender
named in Schedule A
and each other party that may be named a “Lender” under
this Agreement.
“Lender Hedging
Obligations” means all liability and obligations
arising from time to time pursuant to the Swap Contracts (including
the Swap Termination Value thereof) entered into between Borrower
and a Swap Contract Counterparty in connection with the Existing
Loan and, if approved in writing by Agent in its sole and absolute
direction, the Term Loans; provided that, with respect to
any Swap Contract for the Term Loans, if such Swap Contract
Counterparty ceases to be the Agent, a Lender hereunder or an
Affiliate of either of them, Lender Hedging Obligations shall only
include such obligations to the extent arising from transactions
entered into at the time such Swap Contract Counterparty was the
Agent, a Lender hereunder or an Affiliate of either of them
pursuant to any Swap Contract. For clarity, the Lender Hedging
Obligations shall be deemed to include MUFG Bank Lender Hedging
Obligations.
“Lenders’
Consultant” the financial advisor or consultant
retained by or on behalf of Agent and/or the Lenders in connection
with their respective rights under the Loan Documents.
“Lessee” means the lessee
of Equipment subject to a Lease.
“Lessee Letter” shall mean
a letter in the form acceptable to Agent signed by Borrower, as
Lessor, directing the Lessee under the applicable Lease to make
payments under such Lease as directed by Agent upon the election of
the Requisite Lenders.
“Lessor” means any
Equipment Owner party to a Lease as lessor.
“License” means any
license under any written agreement now owned or hereafter acquired
by Borrower granting the right to use any Intellectual Property or
other license of rights or interests now held or hereafter acquired
by Borrower.
“Lien” means, with respect
to any property, any security deed, mortgage, deed to secure debt,
deed of trust, lien, pledge, assignment, charge, security interest,
title retention agreement, negative pledge, levy, execution,
seizure, attachment, garnishment, or other encumbrance of any kind
in respect of such property, whether or not ▇▇▇▇▇▇, vested, or
perfected.
“Loan Documents” means
collectively, this Agreement, the Notes, any Guaranty, the
Collateral Documents, and any and all other agreements (including
subordination agreements), documents, or instruments (including
financing statements) entered into in connection with the
transactions contemplated by this Agreement, together with all
alterations, amendments, changes, extensions, modifications,
refinancings, refundings, renewals, replacements, restatements, or
supplements, of or to any of the foregoing.
“Loans” means all loans
and advances made by Lenders to or for the benefit of Borrower
under this Agreement or under any of the Loan
Documents.
“LOI” has the meaning
assigned thereto in Section
6.22(a).
“Maintenance Expense
Report” has the meaning assigned thereto in
Section 8.3.
“Maintenance Reserve
Balance” has the meaning assigned thereto in
Section 8.5.
“Maintenance Reserve Liability
Report” has the meaning assigned thereto in
Section 8.5.
“Marketed Aircraft” shall
mean the Aircraft bearing manufacturer serial numbers 15128, 15207
and 15215, respectively.
“Master Agreement” means
Master Agreement as defined in the definition of “Swap
Contract.”
“Material Adverse Effect”
means a material adverse effect on (a) the business, property,
assets, operations or condition (financial or otherwise) of
Borrower, (b) the ability of Borrower to pay or perform in
accordance with the terms of any of the Loan Documents taken as a
whole, or (c) the rights and remedies of Agent or any Lender under
any of the Loan Documents.
“Material Contracts” means
those instruments, agreements and contracts set forth on
Schedule
1.1e hereto, as such schedule shall be updated by the
Borrower from time to time.
“Maturity Date” means
March 31, 2021.
“Mortgage” means each
Mortgage and Security Agreement (including the Existing Mortgage)
and any mortgage supplement thereto or each such other security
instrument required by Applicable Law, made by Borrower in favor of
Agent as security for certain obligations under this
Agreement.
“MUFG Bank” has the
meaning assigned thereto in Recital G.
“MUFG Bank Lender Hedging
Obligations” means the Lender Hedging Obligations of
Borrower arising out of the MUFG Bank Swap Contracts, including the
obligation to pay the MUFG Bank Swap Termination Value and the
interest amount thereon as reflected in the Second ISDA
Notice.
“MUFG Bank Swap Contracts”
has the meaning assigned thereto in Recital G.
“MUFG Bank Swap Termination
Value” has the meaning assigned thereto in
Recital G.
“Negative Pledge” means a
Contractual Obligation which contains a covenant binding on
Borrower or any of its Subsidiaries that prohibits Liens on any of
its Property, other
than (a) any such
covenant contained in a Contractual Obligation granting or relating
to a particular Lien which affects only the Property that is the
subject of such Lien; (b) any such covenant that does not apply to
Liens securing the Obligations; and (c) customary permitted junior
Liens to be agreed upon by Borrower and Lender.
“Net Cash Proceeds” means,
with respect to any Aviation Asset Disposition, the gross cash
proceeds received from such Aviation Asset Disposition, net of (i)
transaction costs (consisting of customary commissions, reasonable
legal fees, and expenses associated therewith) incurred in
connection with such Aviation Asset Disposition and (ii)
maintenance reserve liability and security deposit liability, in
each case of Borrower, associated with such aircraft and due and
payable as part of the closing of such Aviation Asset
Disposition.
“Non-Recourse Debt” shall
mean Indebtedness for which the remedy for nonpayment or
non-performance of any obligation or any default in respect thereof
is limited to specified collateral securing such indebtedness and
in respect of which the Borrower is not subject to any personal
liability except to the extent agreed to by Agent in its sole
discretion.
“NordLB” means,
individually or collectively (as the context may require),
Norddeutsche Landesbank Girozentrale, New York Branch, any
“participant” party thereto and the security trustee
under the Excluded Subsidiary Facility (and such parties’
respective successors and assigns).
“NordLB Specified Event of
Default” means any Event of Default arising from a
default or event of default under the Excluded Subsidiary Facility
excluding,
however,
(i) any such default or event of default if NordLB commences
to exercise remedies (or any such remedies are exercised on behalf
of NordLB) thereunder or (ii) an event of default arising from
Section 4.02(g) of security agreement under the Excluded
Subsidiary Facility that states as follows:
[4.02]
(g) at any time either (i) the commencement of an involuntary case
or other proceeding in respect of a Borrower Party under bankruptcy
laws, as now constituted or hereafter amended, or any other
applicable federal or state bankruptcy, insolvency or other similar
law in England or the United States seeking the appointment of a
receiver, liquidator, assignee, Irish law examiner, custodian,
trustee, sequestrator (or similar official) of such Borrower Party
or for all or substantially all of its property, or seeking the
winding-up or liquidation of its affairs and the continuation of
any such case or other proceeding undismissed and unstayed for a
period of 30 consecutive days; or (ii) such commencement by such
Borrower Party of a voluntary case or proceeding under bankruptcy
laws, as now constituted or hereafter amended, or any other
applicable bankruptcy, insolvency or other similar law in the
United States or the consent by such Borrower Party to the
appointment of or taking possession by a receiver, liquidator,
examiner, assignee, trustee, custodian, sequestrator (or other
similar official) of such Borrower Party for all or substantially
all of its property, or the making by such Borrower Party of any
assignment for the benefit of the creditors of such Borrower Party,
or such Borrower Party shall take any action to authorize any of
the foregoing; or (iii) such Borrower Party has or suffers to be
appointed any examiner, administrator, administrative receiver,
receiver, liquidator, trustee or similar officer of all or a
substantial part of its assets and such appointment is not
dismissed for a period of 30 consecutive days;
“Note” means any note,
including any Term Note, executed and delivered by Borrower to any
Lender, as applicable, under this Agreement, and
“Notes”
means collectively all such notes executed and delivered by
Borrower to each Lender under this Agreement.
“Noticed Events of
Default” has the meaning assigned thereto in
Recital D.
“Obligations” means all
(a) loans, advances, debts, expenses reimbursements, fees,
liabilities and obligations, for the performance of covenants,
tasks or duties or for payment of monetary amounts (whether or not
such performance is then required or contingent, or amounts are
liquidated or determinable) owing by Borrower to any Lender or
Agent of any kind or nature, present or future, whether or not
evidenced by any note, agreement or other instrument, arising under
or in connection with this Agreement or any of the other Loan
Documents, and all covenants and duties regarding such amounts, and
(b) the Lender Hedging Obligations. The term
“Obligations” includes all principal, interest
(including interest that accrues after the commencement of any case
or proceeding under any Debtor Relief Law by or against Borrower or
any Affiliate thereof), fees, Charges, expenses, reasonable
attorneys’ fees and any other sum chargeable to Borrower
under this Agreement or any of the other Loan Documents, and all
principal and interest due in respect of the Loans; provided that Obligations of a
Guarantor shall exclude any Excluded Swap Obligation of such
Guarantor.
“Off-Lease” means when
Equipment is either (i) not subject to a valid Lease or
(ii) is subject to a valid Lease but where a required rent or
reserve payment due from Lessee is ninety (90) days past due or the
Lessee is otherwise in default thereunder.
"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 or 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.
“Owner Trustee” means bank
or trust company reasonably satisfactory to Agent acting as trustee
of an aircraft owner trust under a Trust Agreement with Borrower as
the beneficiary.
“Owner Trustee Guaranty”
means an Owner Trustee Guaranty made by Owner Trustee in favor of
Agent, as security for certain obligations under this Agreement,
and guaranteeing Owner Trustee’s performance of the
obligations under the respective Owner Trustee
Mortgage.
“Owner Trustee Mortgage”
means a Mortgage and Security Agreement made by Owner Trustee in
favor of Agent with respect to a Trust Agreement (in connection
with certain Equipment), as security for certain obligations under
this Agreement.
“Participant” has the
meaning assigned thereto in Section 12.8.5.
“Participant Register” has
the meaning assigned thereto in Section 12.8.5.
“Parts” means, at any
time, all parts, components, equipment, instruments, appliances,
avionics, radio and radar devices, cargo handling systems and loose
equipment that are at such time incorporated or installed in or
attached to an airframe, Engine, Propeller, APU or Landing
Gear.
“Patriot Act” has the
meaning assigned thereto in Section 1.5.
“PBGC” means the Pension
Benefit Guaranty Corporation or any successor thereto.
“Permitted Excluded Subsidiary
Financing” means the financing provided to the
Excluded Subsidiaries under the Excluded Subsidiary Facility, which
is Non-Recourse Debt with respect to Borrower or to any Subsidiary
other than Excluded Subsidiaries.
“Permitted Indebtedness”
means, as applied to Borrower, (a) Indebtedness of Borrower under
this Agreement and the Notes, (b) Indebtedness incurred in the
ordinary course of Borrower’s business which is unsecured and
does not constitute Funded Debt, (c) Indebtedness existing as
of the Closing Date and included on Schedule
1.1f hereto,
including the Permitted Excluded Subsidiary Financing and
(d) the PPP Loan so long as the PPP Loan remains an unsecured
Indebtedness, qualifies for loan forgiveness under the CARES Act
pursuant to the PPP Loan Forgiveness Requirements within the time
prescribed thereunder, and Borrower and Subsidiary Guarantors
comply with Section 6.26.
“Permitted Liens” means,
as applied to Borrower: (a) Liens securing Taxes (excluding any
Lien imposed pursuant to any of the provisions of ERISA) or the
claims of materialmen, mechanics, carriers, repairmen,
warehousemen, or landlords or other like Liens, but which (1) have
been bonded, or (2) which are being contested in good faith by
appropriate proceedings and for which Borrower shall have set aside
on its books adequate reserves with respect thereto in accordance
with GAAP; (b) Liens consisting of deposits or pledges made in the
ordinary course of business in connection with, or to secure
payment of, obligations under worker’s compensation,
unemployment insurance, or similar legislation; (c) Liens
constituting encumbrances in the nature of zoning restrictions,
easements, and rights of way or restrictions of record on use of
real property which, in the reasonable judgment of Agent, do not
materially detract from the value of such property or impair the
use thereof in the business of Borrower; (d) Liens of record set
forth in Schedule 1.1g;
(e) Liens created under the Loan Documents; (f) the rights of any
Lessee or sublessee under any Lease to utilize an any Collateral
pursuant to the terms of a Lease; (g) Liens arising in connection
with legal or equitable proceedings against Borrower, which
Borrower is contesting with diligence and good faith and which
Liens do not have a Material Adverse Effect; (h) liens in respect
of personal property leases other than Leases, which, in the
aggregate, are not substantial in amount and do not materially
detract from the value of the property subject thereto or interfere
with the ordinary conduct of the business of the Borrower so as to
cause a Material Adverse Effect; (i) [reserved]; (j) Liens securing
Indebtedness that has since been repaid in full, which filings
Borrower cannot independently terminate; (k) Liens arising out of
judgments that do not constitute an Event of Default under this
Agreement; (l) any Lien arising by virtue of any statutory or
common law provision relating to banker’s liens, rights of
set-off or similar rights and remedies as to deposit accounts or
other funds maintained with a creditor depository institution in
the ordinary course of business; (m) Liens securing Capital Lease
Obligations on assets subject to such leases provided that such capitalized
leases are otherwise permitted under this Agreement; and (n) Liens
arising from the following types of liabilities of a lessee or any
other operator of an item of Equipment, so long as such liabilities
are either not yet due or are being contested in good faith through
appropriate proceedings that do not give rise to any reasonable
likelihood of the sale, forfeiture or other loss of such item of
Equipment, title thereto or Agent’s security interest therein
or of criminal or unindemnified civil liability on the part of the
Borrower, any Lender or any Agent and with respect to which the
lessee maintains adequate reserves (in the reasonable judgment of
the Borrower): (A) fees or charges of any airport or air navigation
authority, (B) judgments, or (C) salvage or other rights of
insurers; provided
that none of the foregoing Liens would have priority over the
security interest in favor of Agent under the Loan
Documents.
“Permitted Rights of
Others” means those Right of Others consisting of (a)
an interest (other than a legal or equitable co ownership interest,
an option or right to acquire a legal or equitable co ownership
interest and any interest of a ground lessor under a ground lease),
that does not materially impair the fair market value or use of
Property for the purposes for which it is or may reasonably be
expected to be held, (b) an option or right to acquire a Lien that
would be a Permitted Lien, (c) the subordination of a lease or
sublease in favor of a financing entity and (d) a license, or
similar right, of or to Intellectual Property granted in the
ordinary course of business.
“Person” means any
individual or entity, including a trustee, sole proprietorship,
partnership, limited partnership, limited liability partnership,
joint venture, trust, unincorporated organization, association,
corporation, limited liability company, institution, public benefit
corporation, entity or government (whether Federal, state, county,
city, municipal or otherwise, including any instrumentality,
division, agency, body or department thereof).
“PIK Interest” means the
payment-in-kind interest that is due and payable pursuant to the
terms hereof on account of the Applicable Base Rate PIK
Margin.
“Plan” means, with respect
to Borrower or any of its Affiliates, at any time, an employee
benefit plan, as defined in Section 3(3) of ERISA, which Borrower
or any of its Affiliates maintains, contributes to or has an
obligation to contribute to on behalf of participants who are or
were employed by any of them.
“PPP Covered Period” means
the period applicable under the CARES Act for the use of the
proceeds of the PPP Loan for the PPP Loan to qualify for loan
forgiveness.
“PPP Loan” unsecured
Indebtedness in an aggregate principal amount not to exceed at any
time outstanding $276,352 extended by a bank or other financial
institution to JMC in the form of a Paycheck Protection Program
loan under the CARES Act, guaranteed by the SBA. For clarity, the
PPP Loan is not part of the Loans and is not extended under the
Credit Facility and, to the extent the PPP Loan lender is a Lender
under the Credit Facility, such lender is not extending the PPP
Loan in its capacity as a Lender under the Credit Facility but in
its separate capacity as the lender holding the debt with respect
to the PPP Loan.
“PPP Loan Forgiveness
Requirements” means the requirements under the CARES
Act, as determined by the SBA pursuant to applicable regulations
promulgated by the SBA from time to time, for the PPP Loan to be
forgiven within the time prescribed thereunder.
“Pricing Debt” means, as
of the date of determination, the aggregate principal Indebtedness
under the Credit Facility then outstanding on such
date.
“Prior Forbearance
Agreement” has the meaning assigned thereto in
Recital C.
“Proceeds” means
“proceeds,” as such term is defined in the UCC and, in
any event, shall include: (a) any and all proceeds of any
insurance, indemnity, warranty or guaranty payable to Borrower from
time to time with respect to any Collateral; (b) any and all
payments (in any form whatsoever) made or due and payable to
Borrower from time to time in connection with any requisition,
confiscation, condemnation, seizure or forfeiture of any Collateral
by any governmental body, authority, bureau or agency (or any
person acting under color of Governmental Authority); (c) any claim
of Borrower against third parties for past, present or future
infringement or dilution of any Intellectual Property or for injury
to the goodwill associated with any Intellectual Property; (d) any
recoveries by Borrower against third parties with respect to any
litigation or dispute concerning any Collateral; and (e) any and
all other amounts from time to time paid or payable under or in
connection with any Collateral, upon disposition or
otherwise.
“Propeller” means each
propeller described in a Mortgage.
“Property” means any real
property, personal property, or Intellectual Property owned, leased
or operated by Borrower, Owner Trustee or any
Subsidiary.
“Pro Rata Share” means,
with respect to each Lender, the percentage of the Term Loan
Commitment set forth opposite the name of that Lender on
Schedule A,
as such percentage may be increased or decreased pursuant to a
Commitment Assignment and Acceptance executed in accordance with
Section 12.7.2.
“Prospective International
Interest” shall have the meaning given to such term in
the Cape Town Convention.
"Recipient" means (a) Agent and
(b) any Lender, as applicable.
“Register” has the meaning
assigned thereto in Section 12.8.4.
“Reference Rate” means the
variable per annum rate of interest most recently announced by
Agent at its corporate headquarters as the “MUFG Union Bank,
N.A. Reference Rate,” with the understanding that the
“MUFG Union Bank, N.A. Reference Rate” is one of
Agent’s index rates and merely serves as a basis upon which
effective rates of interest are calculated for loans making
reference thereto and may not be the lowest or best rate at which
Agent calculates interest or extends credit. The Reference Rate
shall be adjusted on the last Business Day of the calendar month of
any change in the “MUFG Union Bank, N.A. Reference
Rate.” The Reference Rate, as adjusted, shall constitute the
Reference Rate on the date when such adjustment is made and shall
continue as the applicable Reference Rate until further
adjustment.
“Release” means, as to
Borrower, any release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, dumping,
leaching or migration of Hazardous Materials in the indoor or
outdoor environment by Borrower, including the movement of
Hazardous Materials through or in the air, soil, surface water,
ground water or property.
“Released Matters” has the
meaning assigned thereto in Section 16.3.
“Released Parties” has the
meaning assigned thereto in Section 16.3.
“Releasing Parties” has
the meaning assigned thereto in Section 16.3.
“Requisite Lenders” means,
as of the date of any determination and except as otherwise
expressly set forth herein to be all the Lenders, the Lenders
holding Notes evidencing in the aggregate 50.1% or more of the
aggregate Indebtedness then evidenced by the Notes; provided that the Note held by
any Defaulting Lender shall be excluded for purposes of making a
determination of Requisite Lenders.
“Reservation of Rights
Letters” has the meaning assigned thereto in
Recital D.
“Resolution Authority”
means an EEA Resolution Authority or, with respect to any UK
Financial Institution, a UK Resolution Authority
“Restricted Account” has
the meaning assigned thereto in Section 2.18.
“Restricted Subsidiary”
means (i) any Excluded Subsidiary and (ii) any Immaterial
Subsidiary.
“Revised Transaction
Letter” has the meaning assigned thereto in
Section 6.22(b).
“Right of Others” means,
as to any Property in which a Person has an interest, any legal or
equitable right, title or other interest (other than a Lien) held
by any other Person in that Property, and any option or right held
by any other Person to acquire any such right, title or other
interest in that Property, including any option or right
to acquire a Lien; provided, however, that (a) no covenant
restricting the use or disposition of Property of such Person
contained in any Contractual Obligation of such Person and (b) no
provision contained in a contract creating a right of payment or
performance in favor of a Person that conditions, limits,
restricts, diminishes, transfers or terminates such right shall be
deemed to constitute a Right of Others.
“Sanctions” means
sanctions administered or enforced from time to time by the U.S.
government, including those administered by the U.S. Department of
the Treasury’s Office of Foreign Assets Control or any
successor thereto (“OFAC”), the U.S.
Department of Commerce, the U.S. Department of State, the United
Nations Security Council, the European Union, Her Majesty’s
Treasury or any government having jurisdiction over Borrower or one
of its Subsidiaries.
“SBA” means the U.S. Small
Business Administration.
“Schedule of Documents”
means the schedule, including all appendices, exhibits or schedules
thereto, listing certain documents and information to be delivered
in connection with this Agreement and the other Loan Documents and
the transactions contemplated hereunder and thereunder,
substantially in the form of Schedule
1.1h.
“SEC” means the United
States Securities Exchange Commission.
“Second Amendment” has the
meaning assigned thereto in Recital C.
“Second ISDA Notice” has
the meaning assigned thereto in Recital G.
“Security Agreement” means
the Security Agreement dated as of October 1, 2018 executed by
JHC in favor of Agent, the Security Agreement dated as of February
19, 2019 executed by JMC in favor of Agent, in each case on behalf
of the Lenders, and any other security agreement executed by a
Subsidiary, in form and substance satisfactory to Agent; in each
case as originally executed or as it may from time to time be
supplemented, modified, amended, extended or
supplanted.
“Solvent” has the meaning
assigned thereto in Section 5.26.
“Specified Events of
Default” has the meaning assigned thereto in
Recital D.
“Specified Leases” has the
meaning assigned thereto in the definition of “Lease Event of
Default”.
“Strategic Alternative”
has the meaning assigned thereto in Section 6.22(a).
“Strategic Alternative Closing
Milestone” has the meaning assigned thereto in
Section 6.22(c).
“Strategic Alternative Event of
Default” has the meaning assigned thereto in
Section 6.22(d).
“Strategic Alternative LOI
Milestone” has the meaning assigned thereto in
Section 6.22(a).
“Stock” means all
certificated and uncertificated shares, options, warrants, general
or limited partnership interests, participation or other
equivalents (regardless of how designated) of or in a corporation,
partnership, limited liability company or equivalent entity whether
voting or nonvoting, including common stock, preferred stock, or
any other “equity security” (as such term is defined in
Rule 3a11-1 of the General Rules and Regulations promulgated by the
Securities and Exchange Commission under the Securities Exchange
Act of 1934).
“Subsidiary” means, as of
any date of determination and with respect to any Person, any
corporation, limited liability company or partnership (whether or
not, in any case, characterized as such or as a “joint venture”), whether
now existing or hereafter organized or acquired: (a) in the case of
a corporation or limited liability company, of which a majority of
the securities having ordinary voting power for the election of
directors or other governing body (other than securities having
such power only by reason of the happening of a contingency) are at
the time beneficially owned by such Person and/or one or more
Subsidiaries of such Person, or (b) in the case of a partnership,
of which a majority of the partnership or other ownership interests
are at the time beneficially owned by such Person and/or one or
more of its Subsidiaries.
“Subsidiary Guarantor”
means a Subsidiary of Borrower that has delivered to Agent a
Subsidiary Guaranty and security agreement in accordance with
Section 7.19.5.
“Subsidiary Guaranty”
means a guaranty made by a Subsidiary in favor of Agent, whereby
such Subsidiary guaranties performance of the Obligations under the
Loan Documents, including that certain Subsidiary Guaranty dated as
of October 1, 2018 by JHC, the Subsidiary Guaranty dated as of
February 19, 2019 by JMC, each executed in favor of Agent, on
behalf of the Lenders, in each case either as originally executed
or as it may from time to time be supplemented, modified, amended,
extended or supplanted.
“Swap Contract” means (a)
any and all rate swap transactions, basis swaps, credit derivative
transactions, forward rate 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 (any such master
agreement, together with any related schedules, a
“Master
Agreement”), including any such obligations or
liabilities under any Master Agreement.
“Swap Contract
Counterparty” means any Person that is the Agent, a
Lender or an Affiliate of either of them at the time it enters into
a Swap Contract, in its capacity as a party to a Swap Contract,
whether or not such Person subsequently ceases to be the Agent, a
Lender or an Affiliate of either of them. For clarity, MUFG Bank is
a Swap Contract Counterparty with respect to the MUFG Bank Lender
Hedging Obligations.
“Swap Obligation” means,
with respect to Borrower or any Guarantor, 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.
“Swap Termination Value”
means, in respect of any one or more Swap Contracts, after taking
into account the effect of any legally enforceable netting
agreement relating to such Swap Contracts, (a) for any date on or
after the date such Swap Contracts 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 ▇▇▇▇-to-
market value(s) for such Swap Contracts, as determined based upon
one or more mid-market or other readily available quotations
provided by any recognized dealer in such Swap Contracts (which may
include the Agent, a Lender or any Affiliate of either of
them).
“Taxes” means all present
or future taxes, levies, imposts, duties, deductions, withholdings
(including backup withholding), value added taxes, or any other
goods and services, use or sales taxes, assessments, fees or other
charges imposed by any Governmental Authority, including any
interest, additions to tax or penalties applicable
thereto.
“Term Loan Commitment”
means, subject to Section
2.7 Eighty Three Million Five
Hundred Fourteen Thousand Eight Hundred Twenty Three and 64/100
Dollars ($83,514,823.64) (which amount does not take into account
capitalized interest for April 2020 to be added to the principal on
May 1, 2020). The Term Loan Commitment is subject to increase on
account of the PIK Interest that is added to the amount thereof
pursuant to the terms herein. The respective Pro Rata Shares of the
Lenders with respect to the Term Loan Commitment are set forth in
Schedule
A.
“Term Loan” means a
loan(s) made by the Lenders to Borrower pursuant to Section 2.1.
“Term Note” means each and
collectively those certain promissory notes executed and delivered
by Borrower to each Lender in accordance with its Pro Rata Share of
the Term Loan Commitment, dated as of the Closing Date, in the
original aggregate principal amount of the Term Loan Commitment,
together with any other notes executed and delivered by Borrower to
any Lender evidencing at any time any portion of the
Loans.
“Termination Date” means
the date on which the Loans and all other Obligations under this
Agreement and the other Loan Documents are indefeasibly paid in
full, in cash, and Borrower shall have no further right to borrow
any moneys or obtain other credit extensions or financial
accommodations under this Agreement.
“Third Amendment” has the
meaning assigned thereto in Recital C.
“Trust Agreement” means a
Trust Agreement between Owner Trustee, as owner trustee, and
Borrower, as the sole beneficiary, as amended, supplemented or
otherwise modified from time to time, whereby the parties agreed,
among other things, that Owner Trustee shall act as trustee with
respect to the “Equipment” and “Lease
Agreement” as defined therein.
“UCC” means the Uniform
Commercial Code as the same may, from time to time, be enacted and
in effect in the State of New York; provided, that in the event by
reason of mandatory provisions of law, any or all of the
attachment, perfection or priority of Agent’s Lien on any
Collateral is governed by the Uniform Commercial Code as enacted
and in effect in a jurisdiction other than the State of New York,
the term “UCC” means the Uniform
Commercial Code as enacted and in effect in such other jurisdiction
solely for purposes of the provisions hereof relating to such
attachment, perfection or priority and for purposes of definitions
related to such provisions.
“UK Financial Institution”
means any BRRD Undertaking (as such term is defined under the PRA
Rulebook (as amended form time to time) promulgated by the United
Kingdom Prudential Regulation Authority) or any person falling
within IFPRU 11.6 of the FCA Handbook (as amended from time to
time) promulgated by the United Kingdom Financial Conduct
Authority, which includes certain credit institutions and
investment firms, and certain affiliates of such credit
institutions or investment firms
“UK Resolution Authority”
means the Bank of England or any other public administrative
authority having responsibility for the resolution of any UK
Financial Institution.
“Unrestricted Cash” means
the sum of Cash and Cash Equivalents of Borrower and its Subsidiary
Guarantors held in deposit accounts other than the Restricted
Account.
“Wholly-Owned Subsidiary”
means a Subsidiary of Borrower, 100% of the capital stock or other
equity interest of which is owned, directly or indirectly, by
Borrower, except
for director’s qualifying shares required by Applicable
Law.
“Write-Down and Conversion
Powers” means, (a) 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, and (b) with respect to the United Kingdom, any powers of
the applicable Resolution Authority under the Bail-In Legislation
to cancel, reduce, modify or change the form of a liability of any
UK Financial Institution or any contract or instrument under which
that liability arises, to convert all or part of that liability
into shares, securities or obligations of that person or any other
person, to provide that any such contract or instrument is to have
effect as if a right had been exercised under it or to suspend any
obligation in respect of that liability or any of the powers under
that Bail-In Legislation that are related to or ancillary to any of
those powers.
. All
accounting terms used, but not specifically defined, in this
Agreement shall be construed and defined in accordance with
GAAP.
. Any
terms that are defined in the UCC and used, but not specifically
defined, in this Agreement shall be construed and defined in
accordance with the UCC.
. For
purposes of this Agreement and the other Loan Documents, the
following rules of construction shall apply, unless specifically
indicated to the contrary: (a) wherever from the context it appears
appropriate, each term stated in either the singular or plural
shall include the singular and the plural, and pronouns stated in
the masculine, feminine or neuter gender shall include the
masculine, the feminine and the neuter; (b) the term
“or” is not exclusive; (c) the term
“including” (or any form thereof) shall not be limiting
or exclusive; (d) all references to statutes and related
regulations shall include any amendments thereof and any successor
statutes and regulations; (e) the words “herein,”
“hereof” and “hereunder” or other words of
similar import refer to this Agreement as a whole, including the
exhibits and schedules hereto, as the same may from time to time be
amended, modified or supplemented, and not to any particular
section, subsection or clause contained in this Agreement; (f) all
references in this Agreement or in the schedules to this Agreement
to sections, schedules, disclosure schedules, exhibits, and
attachments shall refer to the corresponding sections, schedules,
disclosure schedules, exhibits, and attachments of or to this
Agreement; and (g) all references to any instruments or agreements,
including references to any of the Loan Documents, shall include
any and all modifications or amendments thereto and any and all
extensions or renewals thereof. Any reference herein to a merger,
transfer, consolidation, amalgamation, consolidation, assignment,
sale, disposition or transfer, or similar term, shall be deemed to
apply to a division of or by a limited liability company, or an
allocation of assets to a series of a limited liability company (or
the unwinding of such a division or allocation), as if it were a
merger, transfer, consolidation, amalgamation, consolidation,
assignment, sale, disposition or transfer, or similar term, as
applicable, to, of or with a separate Person.
. Each
Lender is subject to the USA Patriot Act and hereby notifies
Borrower that pursuant to the requirements of the USA Patriot Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001))
(as amended and supplemented from time to time, the “Patriot
Act”), each Lender is required to obtain, verify and record
information that identifies Borrower, which information includes
the name and address of Borrower and other information that will
allow each Lender to identify Borrower in accordance with the
Patriot Act.
.
Except as expressly otherwise provided herein, any financial ratios
required to be maintained by Borrower pursuant to this Agreement
(or required to be satisfied in order for a specific action to be
permitted under 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 is
expressed herein and rounding the result up or down to the nearest
number (with a rounding-up if there is no nearest
number).
.
Notwithstanding anything herein or any other Loan Document to the
contrary, whenever any document, agreement or other item is
required by any Loan Document to be delivered on a day that is not
a Business Day, the due date thereof shall be extended to the next
succeeding Business Day.
. For
all purposes under the Loan Documents, in connection with any
division or plan of division under Delaware law (or any comparable
event under a different jurisdiction’s laws): (a) if any
asset, right, obligation or liability of any Person becomes the
asset, right, obligation or liability of a different Person, then
it shall be deemed to have been transferred from the original
Person to the subsequent Person, and (b) if any new Person comes
into existence, such new Person shall be deemed to have been
organized on the first date of its existence by the holders of its
Stock at such time.
.
Subject to the terms and conditions of this Agreement, each Lender
severally agrees to extend Term Loans to Borrower on the Closing
Date in an aggregate principal amount equal to such Lender’s
Pro Rata Share of the Term Loan Commitment, at which time the
aggregate principal amount extended to Borrower under the Credit
Facility shall equal the Term Loan Commitment on the Closing Date
and shall include the amounts already funded and owing under the
Existing Loan. For the avoidance of doubt, the cashless exchange of
Loans for the Existing Loan shall be the only means by which the
Lenders shall make the Loans hereunder, and the Lenders shall have
no obligations hereunder to make any funds available to Borrower.
The Term Loans are not revolving credit loans, and amounts borrowed
hereunder and repaid or prepaid may not be reborrowed. Borrower
shall repay the Term Loans in full, together with any other amounts
then due and owing Lender under this Agreement and the other Loan
Documents, on the Maturity Date. The Term Loans shall be repayable
in accordance with the terms of this Agreement and entries upon the
books and records maintained by Agent.
2.1.1 Type
. The
Term Loan shall be a Base Rate Loan and shall accrue interest as
set forth herein.
. Any
notice in connection with a requested Term Loan under this
Agreement that is received by Agent after 11:00 a.m. (California
time) on any Business Day, or at any time on a day that is not a
Business Day, shall be deemed received by Agent on the next
Business Day. Promptly following receipt of a request for a Loan,
Agent shall notify each Lender by telephone or telecopier (and if
by telephone, promptly confirmed by telecopier) of the date of the
Loan and that Lender’s Pro Rata Share of the Loan. Not later
than 10:00 a.m., California time, on the date specified for any
Loan (which must be a Business Day), each Lender shall be deemed to
have made its Pro Rata Share of the Loan in immediately available
funds available to Agent at Agent’s office and the requested
Term Loan shall be deemed made on such date, and the information
regarding which may be noted in Agent’s records (provided
that, failure to update such records accordingly shall not in any
manner affect the obligation of Borrower to repay the Loans). For
clarity, (i) no disbursement of funds will be made to Borrower
in connection with such request and references in this Agreement to
making, funding, advancing Loans and like terms shall not be deemed
to provide for the making of any new Loans and (ii) the
requirements under this Section 2.1.2
shall be deemed satisfied upon the closing hereunder on the Closing
Date.
.
2.2.1 Loans
.
Interest on Term Loans shall be payable as follows:
.
(i) Interest on each
outstanding Base Rate Loan shall be computed for the actual number
of days elapsed on the basis of a year of 360 days and shall be
payable to Agent for the ratable benefit of Lenders, in arrears (i)
on the first Business Day of each month, (ii) on the Maturity Date,
and (iii) if any interest accrues or remains payable after the
Maturity Date or during the continuance of an Event of Default,
upon demand by Agent (such date in the foregoing clauses (i)
through (iii), “Base
Rate Interest Payment Date”).
(ii) Interest
shall accrue and be payable on each Base Rate Loan at a per annum
interest rate (such interest rate, “Applicable Base Rate”)
equal to:
(A) for the Initial
Period, the Base Rate plus the sum of the Applicable
Base Rate Margin for the Initial Period consisting of the
Applicable Base Rate Cash Margin for the Initial Period and
Applicable Base Rate PIK Margin for the Initial
Period.
(B) for any period
after the Initial Period, the Base Rate plus the Applicable Base Rate
Margin for such period consisting of the Applicable Base Rate Cash
Margin for such Period and Applicable Base Rate PIK Margin for such
period.
(iii) The
portion of interest accruing on each Base Rate Loan on account of
the Applicable Base Rate Cash Margin shall be due and payable in
arrears on each Interest Payment Date for such Base Rate Loan and
at such other times as may be specified herein.
(iv) The
portion of interest accruing on each Base Rate Loan on account of
the Applicable Base Rate PIK Margin shall be due and payable in
kind by capitalizing and adding to the outstanding principal
balance of such Base Rate Loan on each Interest Payment Date for
such Base Rate Loan (after which time such capitalized interest
shall no longer be treated as accrued and unpaid interest but
instead shall be treated as a portion of the outstanding principal
balance of such Base Rate Loan and bear interest in accordance with
this Agreement for all purposes); provided that Borrower shall
have the right, in its discretion, to pay such amount, in full but
not in part, in cash upon providing written notice to Agent of its
election to do so at least three (3) Business Days prior to the
applicable Interest Payment Date.
(b) [Reserved]
.
(c) Interest
Payable
.
Interest hereunder shall be due and payable in accordance with the
terms hereof before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief
Law.
.
Notwithstanding anything herein to the contrary, the cash component
of the interest payments for the months of March (the
“March
Interest”) and April of 2020 (the “April Interest” and,
together with the March Interest Payment, the “Deferred Interest”) due
on April 1, 2020 and May 1, 2020, respectively, will be deferred
and be due and payable on the earlier of (i) the date of receipt of
net proceeds into the Restricted Account from the sale of Aircraft
238 and (ii) July 1, 2020 (such earlier date, the
“Deferred Interest
Due Date”). Pending such payment, (1) the amount
on account of the PIK Interest component of the Late Fee accruing
on the April Interest from May 1, 2020 through the Closing Date
shall be capitalized and added to the principal balance of the
Loans on the Closing Date and, thereafter, the amount on account of
the PIK Interest component of the Late Fee accruing on the Deferred
Interest for the period after the Closing Date until the Deferred
Interest Due Date shall be waived; and (2) the amount on
account of the Cash Interest component of the Late Fee accruing on
the March Interest and the April Interest from April 1, 2020 and
May 1, 2020, respectively, through the Deferred Interest Due Date
shall be waived.
2.2.2 Default
Rate
. Upon
the occurrence and during the continuance of an Event of Default,
interest on all outstanding Obligations shall, upon the election of
Agent or the Requisite Lenders, confirmed by written notice from
Agent to Borrower, accrue and be payable at the Default Rate;
provided that, the
Default Rate shall not apply as a result of solely a Strategic
Alternative Event of Default unless the Requisite Lenders require
it. Interest accruing at the Default Rate shall be payable to
Agent, for the ratable benefit of Lenders, on demand and in any
event on the Maturity Date. Agent shall not be required to (1)
accelerate the maturity of the Loans or (2) exercise any other
rights or remedies under the Loan Documents, in order to charge the
Default Rate. Upon the occurrence and during the continuance of an
Event of Default specified in Sections 9.1.5, 9.1.6, or 9.1.7,
the interest rate shall be increased automatically to the Default
Rate without the necessity of any action by Agent or the Requisite
Lenders.
. In no
event shall the aggregate of all interest on the Obligations
charged or collected pursuant to the terms of this Agreement or
pursuant to the Notes (if any) exceed the highest rate permissible
under any law that a court of competent jurisdiction shall, in a
final determination, deem applicable. In the event that such a
court determines that a Lender has charged or received interest
under this Agreement or the Notes (if any) in excess of the highest
applicable rate, the rate in effect under this Agreement and the
Notes (if any) shall automatically be reduced to the maximum rate
permitted by Applicable Law and Lender shall promptly apply such
excess to reduce the principal balance of the Obligations, or if
the principal balance of the Obligations owing have been paid in
full, Lender shall promptly apply such excess to reduce any other
Obligations, and if all Obligations have been paid in full, then
Lender shall refund to Borrower any interest received by Lender in
excess of the maximum lawful rate; provided, that if at any time
thereafter the rate of interest payable hereunder is less than the
highest applicable rate, Borrower shall continue to pay interest
hereunder at the highest applicable rate, until such time as the
total interest received by Lender from the making of Loans
hereunder is equal to the total interest that Lender would have
received had the interest rate payable hereunder been (but for the
operation of this Section 2.3)
the interest rate payable since the Closing Date as otherwise
provided in this Agreement. It is the intent of this Agreement that
Borrower not pay or contract to pay, and that Lender not receive or
contract to receive, directly or indirectly, interest in excess of
that which may be paid by Borrower under Applicable
Law.
.
Borrower shall pay to Agent:
.
Annually on each future anniversary of the “Closing
Date” as defined in the Existing Credit Agreement
(i.e., February 19, 2019),
a fee for ongoing administration of the Credit Facility equal to
$50,000.00 plus $5,000 times the number of discrete Lenders (not to
include MUFG Union Bank, N.A.) subscribed to the Credit Facility,
which fee shall be solely for Agent’s own account and is
nonrefundable. Borrower
shall also reimburse Agent for charges to set up and maintain the
website for the Lenders in the Credit Facility.
. If
any installment of principal or interest or any fee or cost or
other amount payable under any Loan Document to Agent or any Lender
is not paid when due (after giving effect to any applicable grace
periods), it shall thereafter bear interest at the fluctuating rate
per annum at all times equal to the Default Rate, to the fullest
extent permitted by Applicable Law; provided, however, the foregoing late
payment charge (the “Late Fee”) shall not
apply to a Strategic Alternative Event of Default unless Requisite
Lenders require it. The Late Fee is imposed for the purpose of
defraying the expenses of Agent and the Lenders incident to
handling such delinquent payment. This provision shall not,
however, be construed as extending the time for payment of any
amount due under the Loan Documents. The Late Fee shall be in
addition to, and not in lieu of, any other amount that Agent or the
Lenders may be entitled to receive or action that Agent or the
Lenders may be authorized to take as a result of such late payment.
Accrued and unpaid interest on past due amounts (including, without
limitation, interest on past due interest) shall be compounded
monthly, on the last day of each calendar month, to the fullest
extent permitted by Applicable Law.
.
2.6.1 Optional
Prepayment
. The
principal amount of any Base Rate Loan may be prepaid, in whole or
in part, prior to the Maturity Date, together with accrued interest
to the date of such prepayment on the aggregate principal amount
prepaid, at any time upon a written notice to Agent not later than
11:00 a.m. (California time) on the date of the prepayment of such
Base Rate Loan. Each notice of prepayment shall be irrevocable. Any
Loan repaid may not be reborrowed.
2.6.2 Mandatory
Prepayment
.
(a) Event of Loss. Upon the receipt
of proceeds in excess of $200,000.00 from any recovery under any
applicable insurance policies (or otherwise) in connection with an
Event of Loss, Borrower shall immediately pay down the Obligations
in an amount equal to 100% of the Net Cash Proceeds from such
recovery, unless all Lenders agree to waive all or a portion of
such mandatory prepayment.
(b) Excess Cash. In accordance with
Section 6.15,
Borrower shall cause the Excess Cash to be remitted to Agent to be
applied to the payment of the Obligations.
(c) Aviation Asset Disposition.
Upon the closing of any Disposition, including an Aviation Asset
Disposition, Borrower shall cause 100% of the Net Cash Proceeds of
such Disposition to be remitted to Agent to the payment of the
Obligations.
2.6.3 Mandatory
Repayment – Change in Control
. Upon
the occurrence of a Change in Control, the Term Loan Commitment
shall be terminated, and all outstanding Loans shall, together with
all accrued interest thereon, immediately be due and
payable.
.
2.7.1 Term.
The Credit Facility and all other Obligations related thereto shall
be automatically due and payable in full on the Maturity Date,
unless earlier due and payable as provided in this Agreement.
Borrower hereby unconditionally promises to pay to Agent for the
account of each Lender the then unpaid principal amount of each
Loan of such Lender on the Maturity Date (or such earlier date on
which the Loans become due and payable pursuant the applicable
terms hereunder). Borrower hereby further agrees to pay interest on
the unpaid principal amount of the Loans from time to time
outstanding from the date hereof until payment in full thereof at
the rates per annum, and on the dates, set forth
herein.
.
.
2.9.1 If
so requested by any Lender prior to the Closing Date, or at any
time thereafter, Borrower shall execute and deliver to such Lender
(and/or, if applicable and if so specified in such notice, to any
Person who is an assignee of such Lender) on the Closing Date (or,
if such notice is delivered after the Closing Date, promptly after
Borrower’s receipt of such notice) a Note or Notes to
evidence such Lender’s Loan.
2.9.2 Each
Lender shall maintain, in accordance with its usual practice,
electronic or written records evidencing the indebtedness and
obligations to such Lender resulting from each Loan made by such
Lender, including, without limitation, the amounts of principal and
interest payable and paid to such Lender from time to time under
this Agreement (including, but not limited to, any increases in
principal of the Term Loans resulting from the capitalization of
PIK Interest).
2.9.3 Agent shall maintain electronic
or written records in which it will record (i) the amount of each
Loan made hereunder, the type of each Loan made and any applicable
interest rate periods, (ii) the amount of any principal and/or
interest due and payable and/or to become due and payable from
Borrower to each Lender hereunder and (iii) all amounts received by
Agent hereunder from Borrower and each Lender’s share
thereof.
2.9.4 The
entries in the electronic or written records maintained pursuant to
Section 2.9.3
shall be prima facie evidence of the existence and amounts of the
obligations and indebtedness therein recorded; provided, however, that the failure of
Agent to maintain such records or any error therein shall not in
any manner affect the obligations of Borrower to repay the Loans or
Obligations in accordance with their terms.
2.9.5 Agent
shall provide a quarterly accounting to Borrower of the Loans and
other transactions under this Agreement, including Agent’s
calculation of principal and interest. Each and every such
accounting shall, absent manifest error, be deemed final, binding
and conclusive upon Borrower.
.
2.10.1 When
Payments Due
.
(a) Except as expressly
set forth in this Agreement, each payment (including any
prepayment) by Borrower on account of the principal of or interest
on the Loans and any other amount owed to Lenders on account of the
Obligations shall be made not later than 11:00 a.m. (California
time) on the date specified for payment under this Agreement to
Agent in lawful money of the United States and in immediately
available funds. Any payment received by Agent on a day that is not
a Business Day or after 11:00 a.m. (California time) on a Business
Day, shall be deemed received on the next Business Day. The amount
of all payments received by Agent for the account of each Lender
shall be disbursed by Agent to the applicable Lender promptly upon
receipt in like funds as received.
(b) If any payment on
any Obligation is specified to be made upon a day that is not a
Business Day, it shall be deemed to be specified to be made on the
next succeeding day that is a Business Day, and such extension of
time shall in such case be included in computing interest and fees,
if any, in connection with such payment.
2.10.2 No
Deductions
.
Borrower shall pay principal, interest, fees, and all other amounts
due on the Obligations without condition or deduction for any
set-off, recoupment, defense or counterclaim or any other deduction
whatsoever.
.
2.11.1 Waiver.
Borrower irrevocably waives the right to direct the application of
any and all payments received at any time by Agent or any Lender
from or on behalf of Borrower and specifically waives the
provisions of California Civil Code Sections 1479 and 2822 or
similar provisions under any other Applicable Law giving Borrower
the right to designate application of payments. The allocations set
forth in this Section are solely to determine the rights and
priorities of Agent and the Lenders as among themselves, and may be
changed by agreement among all of the Lenders without the consent
of Borrower. This Section is not for the benefit of or enforceable
by Borrower.
2.11.2 Allocation. Notwithstanding
anything herein to the contrary, if at any time amounts are
received by or available to Agent for application to the
Obligations, such amounts shall be applied in the following order
of priority:
(a) first, to payment of that
portion of the Obligations constituting fees, indemnities, expenses
and other amounts (including fees and disbursements owed to Agent
and charges of counsel payable under Section 12.2)
payable to Agent in its capacity as such;
(b) second, to payment of that
portion of the Obligations constituting fees, indemnities and other
amounts (other than principal and interest) payable to the Lenders
arising under the Loan Documents, ratably among them in proportion
to the respective amounts described in this clause (b) payable to
them;
(c) third, to payment of that
portion of the Obligations constituting accrued and unpaid interest
on the Loans and on the Lender Hedging Obligations, ratably among
the Lenders and the Swap Contract Counterparty(ies) in proportion
to the respective amounts described in this clause (c) payable to
them;
(d) fourth, to payment of that
portion of the Obligations constituting unpaid principal of the
Loans and Obligations constituting Lender Hedging Obligations
ratably among the Lenders and the Swap Contract Counterparty(ies)
in proportion to the respective amounts described in this clause
(d) payable to them (for clarity, the repayment of the principal of
the Loans rank pari passu
with the repayment of the Lender Hedging Obligations);
(e) fifth, to the payment in full
of all other Obligations, in each case ratably among Agent and the
Lenders based upon the respective aggregate amounts of all such
Obligations owing to them in accordance with the respective amounts
thereof then due and payable; and
(f) finally, the balance, if any,
after all Obligations have been indefeasibly paid in full, to
Borrower or as otherwise required by Applicable Law.
2.11.3 Erroneous
Application. Agent shall not be liable for any application
of amounts made by it in good faith and, if any such application is
subsequently determined to have been made in error, the sole
recourse of any Lender or other Person to which such amount should
have been made shall be to recover the amount from the Person that
actually received it (and, if such amount was received by any
Lender, such Lender hereby agrees to return it).
. The
proceeds of the Loans shall be used by Borrower to convert the
existing revolving debt to a term loan and to support
Borrower’s working capital needs and general corporate
purposes. Borrower will not, directly or indirectly, use any part
of any Loan proceeds for the purpose of purchasing or carrying any
margin stock within the meaning of Regulation U of the Board of
Governors of the Federal Reserve System or to extend credit to any
Person for the purpose of purchasing or carrying any such margin
stock, or for any purpose which violates, or is inconsistent with,
Regulation X of such Board of Governors.
. All
Obligations related to the Credit Facility constitute one general
obligation of Borrower and shall be secured by Agent’s Liens
upon all of the Collateral, and by all other Liens previously, now
or at any time in the future granted by Borrower to Agent or any
Lender to the extent provided in the Collateral Documents and
permitted by this Agreement.
. Agent
is authorized to make the Loans based on telephonic or other oral
or written instructions received from any Person that Agent
believes in good faith to be an authorized representative of
Borrower, or at the discretion of Agent, if such Loans are
necessary to satisfy any of the Obligations. Borrower consents to
the recordation of any telephonic or other communications between
Agent and Borrower for the purpose of maintaining such
party’s business records of such transactions.
.
Borrower authorizes Agent, upon prior notice to Borrower, to debit
any of Borrower’s deposit account(s) with Agent (including
the Restricted Account) for the purpose of Borrower’s payment
of principal, interest, fees and other costs and expenses due and
payable by Borrower under this Agreement.
.
.
(a) Payments Free of Taxes. Any and
all payments by or on account of any obligation of Borrower 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 Borrower 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 2.17)
the applicable Recipient receives an amount equal to the sum it
would have received had no such deduction or withholding been
made.
(b) Payment of Other Taxes by
Borrower. Borrower shall timely pay to the relevant
Governmental Authority in accordance with applicable law, or at the
option of Agent timely reimburse it for, Other Taxes.
(c) Evidence of Payments. As soon
as practicable after any payment of Taxes by Borrower to a
Governmental Authority pursuant to this Section 2.17,
Borrower shall deliver to 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
Agent.
(d) Indemnification by Borrower.
Borrower shall indemnify each Recipient, within ten (10) days after
demand therefor, for the full amount of any Indemnified Taxes
(including 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 Borrower by a Lender (with a copy
to Agent), or by Agent on its own behalf or on behalf of a Lender,
shall be conclusive absent manifest error.
(e) Indemnification by the Lenders.
Each Lender shall severally indemnify Agent, within ten (10) days
after demand therefor, for (i) any Indemnified Taxes attributable
to such Lender (but only to the extent that Borrower has not
already indemnified Agent for such Indemnified Taxes and without
limiting the obligation of Borrower to do so), (ii) any Taxes
attributable to such Lender's failure to comply with the provisions
of Section 12.8.5
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 Agent 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 Agent shall be conclusive absent manifest error. Each Lender
hereby authorizes Agent to set off and apply any and all amounts at
any time owing to such Lender under any Loan Document or otherwise
payable by Agent to the Lender from any other source against any
amount due to Agent under this paragraph (e).
(f) 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
Borrower and Agent, at the time or times reasonably requested by
Borrower or Agent, such properly completed and executed
documentation reasonably requested by Borrower or 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 Borrower or Agent, shall deliver such other
documentation prescribed by Applicable Law or reasonably requested
by Borrower or Agent as will enable Borrower or 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 2.17(f)(ii)(A), 2.17(f)(ii)(B) and 2.17(f)(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, in the event that
Borrower is a U.S. Person,
(A) any Lender that is
a U.S. Person shall deliver to Borrower and 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
Borrower or Agent), an executed copy of IRS Form W-9 certifying
that such Lender is exempt from U.S. federal backup withholding
tax;
(B) any Foreign Lender
shall comply with Section 12.17.
(C) any Foreign Lender
shall, to the extent it is legally entitled to do so, deliver to
Borrower and 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 Borrower or Agent),
executed copies of any other form prescribed by Applicable Law as a
basis for claiming exemption from or a reduction in U.S. Federal
withholding Tax, duly completed, together with such supplementary
documentation as may be prescribed by Applicable Law to permit
Borrower or 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 U.S.
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 Borrower and
Agent at the time or times prescribed by law and at such time or
times reasonably requested by Borrower or 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 Borrower or Agent as may be necessary for
Borrower and Agent to comply with their obligations under FATCA and
to determine that such Lender has complied with such Lender'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
Borrower and Agent in writing of its legal inability to do
so.
(g) 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 2.17
(including by the payment of additional amounts pursuant to this
Section 2.17),
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 2.17 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 (g) (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 (g), in
no event will the indemnified party be required to pay any amount
to an indemnifying party pursuant to this paragraph (g) 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.
(h) Survival; Defined Terms. Each
party's obligations under this Section 2.17 shall survive the resignation or
replacement of the Agent or any assignment of rights by, or the
replacement of, a Lender, the termination of the Term Loan
Commitments and the repayment, satisfaction or discharge of all
obligations under any Loan Document. For purposes of this
Section 2.17,
the term "Applicable Law" includes FATCA.
1.
.
(a) Account Established. Borrower
has established with Agent the depository account, bearing account
number XXXXX00046 (“Restricted Account”).
As an additional security for the Obligations, Borrower hereby
grants to Agent, for the benefit of the Lenders, a first priority
perfected security interest in the Restricted Account, all sums
deposited therein and all replacements, substitutions or proceeds
thereof. Borrower shall pay all costs and expenses in connection
with establishing and administering the Restricted Account. The
Restricted Account is a “blocked” account, and Borrower
shall not be entitled to make any withdrawals of any funds thereof,
and Agent shall have the sole right to make such withdrawals in
accordance with the terms hereof. Borrower hereby waives all right
to withdraw any funds from the Restricted Account, except upon full
satisfaction of all the Obligations.
(b) Disbursements. Agent shall be
entitled to disburse all or part of the funds in the Restricted
Account as follows (for clarity, the forgoing consent shall be
deemed to have been provided for the period before and after the
occurrence of a Forbearance Termination Date, without any further
notice to or consent from Borrower or Lenders):
(i) Agent shall be
entitled to disburse funds from the Restricted Account to pay the
monthly accrued interest portion (or any portion thereof to the
extent funds are available in the Restricted Account) payable on
the Obligations (subject to Section 2.2.1(d)
with respect to the Deferred Interest) and the Lender Hedging
Obligations.
(ii) Agent
shall be entitled to disburse funds from the Restricted Account to
pay the ongoing fees and expenses of Agent and of its counsel and
other professionals of Agent.
(iii) Agent
shall be entitled to disburse from the Restricted Account on or
shortly after the Closing Date an amount estimated at $1,585,379.93
for the payment of accrued professional fees and expenses of
Agent’s counsel and financial advisor and $543,750.00 for the
accrued professional fee of Borrower’s financial advisor (▇.
▇▇▇▇▇).
(c) Upon the occurrence
and during the continuation of a Default or Event of Default (other
than the Specified Events of Default during the Forbearance
Period), Agent may (and, if directed by the Requisite Lenders,
shall), in addition to any and all other rights and remedies
available to Agent, apply any amounts then on deposit in the
Restricted Account to the payment of the Obligations in accordance
with Section 2.11.
No such use or application of funds in the Restricted Account
shall be deemed to cure any Default or Event of Default. No further
notice to or direction or authorization from Borrower shall be
necessary to warrant such direct disbursement by
Agent.
. To
secure the prompt payment and performance of all
Obligations,
3.1.1 Borrower
has granted and pledged, and hereby reaffirms such grant and
pledge, to Agent a continuing security interest in all presently
existing and hereafter acquired or arising Assets, including all
Assets that immediately prior to the Closing Date constituted
Collateral securing any part of the Existing Loan, in order to
secure prompt repayment of any and all Obligations and in order to
secure prompt performance by Borrower of each of its covenants and
duties under the Loan Documents. Such security interest constitutes
a valid, first priority security interest in the presently existing
Assets, and will constitute a valid first priority security
interest in Assets acquired after the date hereof. Notwithstanding
the foregoing, Agent shall not be granted any security interest in
the Excluded Assets or the equity interests in the Excluded
Subsidiaries except as provided under Section 3.1.2,
below;
3.1.2 Borrower shall cause each
Subsidiary (other than an Immaterial Subsidiary) to (i) grant to
Agent a perfected security interest and Lien on and (ii) assign to
Agent, all right, title and interest of it in and to all of its
Assets (other than the Excluded Assets), whether now existing or
owned or hereafter acquired; provided, however, that Borrower (or the Excluded
Subsidiary which is the owner thereof) shall only be required to
grant a perfected security interest and Lien in Excluded Assets and
the equity interests in the Excluded Subsidiaries upon repayment of
the applicable Permitted Excluded Subsidiary Financing and release
by the Permitted Excluded Subsidiary Financing lender;
3.1.3 Borrower
has granted to Agent a first priority perfected, secured Lien on,
and has assigned to Agent, all right, title and interest of the
Borrower in and to all “Collateral” (as such term is
defined in the Mortgage (including the Existing Mortgage)), whether
now existing or owned or hereafter acquired, and hereby reaffirms
such grant and shall confirm such grant by delivery to Agent of a
fully executed Fourth Amended and Restated Mortgage and Security
Agreement in the form acceptable to Agent;
3.1.4 Borrower
shall cause the Owner Trustee, if any, to pledge to Agent all of
the Borrower’s right, title and interest in a Beneficial
Interest under a Trust Agreement by the delivery to Agent a fully
executed Beneficial Interest Pledge Agreement, each in the form
acceptable to Agent;
3.1.5 Borrower
shall cause the Owner Trustee, if any, to execute and deliver to
Agent an Owner Trustee Mortgage in favor of Agent in the form
acceptable to Agent;
3.1.6 Borrower
shall cause the Owner Trustee, if any, to execute and deliver to
Agent an Owner Trustee Guaranty in the form acceptable to Agent,
guarantying the performance of the Obligations; and
3.1.7 Borrower
shall make or cause any Person to make such filings, registrations,
or otherwise with the FAA, International Registry, the U.S. Patents
and Trademarks Office and otherwise under the UCC and all other
Applicable Law as shall be required to perfect the Lien of Agent
with respect to all Collateral under the Collateral Documents or
any other Loan Documents, including but not limited to the
following
:
(a) UCC financing
statements, naming Agent as secured party and Agent for the benefit
of Lenders in order to perfect and preserve Agent’s first
priority Lien on the Collateral shall have been filed in such
states in the United States of America as required, in the judgment
of Agent, to perfect the Lien of Agent in all UCC
Collateral;
(b) the Lien and
International Interest (or Prospective International Interest), and
any and all assignments and prospective assignments, as applicable,
thereof, of the Mortgage and an Owner Trustee Mortgage, if any,
with respect to the Equipment and Cape Town Eligible Leases with
respect thereto owned by the Borrower and each Subsidiary as of the
date of this Agreement shall have been registered with the
International Registry and, with respect to all Engines and U.S.
registered aircraft, the FAA; provided that if the International
Registry does not then provide as a “drop down”
registration category the serial number of any item of Equipment to
be registered, then the Borrower shall register the same by
“free text” notation in the International Registry and
shall subsequently register such item of Equipment in its serial
number category as soon as such registration category is available
on the International Registry;
(c) without limiting
the generality of the foregoing, all filings with the United States
Patent and Trademark Office necessary or desirable to perfect
Agent’s Lien on all patents and trademarks of the Borrower;
and
(d) the Lien as
applicable, of the Mortgage and Owner Trustee Mortgage, if any,
with respect to the Equipment and Leases owned by the Borrower and
each Subsidiary as of the date of this Agreement and not located in
a Contracting State shall have been registered with the appropriate
authorities pursuant to Applicable Law.
3.1.8 Except
with respect to the JFC Bank Account as long as Borrower remains in
compliance with Section 7.4,
Borrower and each of its Subsidiaries (other than Excluded
Subsidiaries) that maintains a deposit account shall grant to Agent
a first priority perfected, secured Lien on, and assign to Agent,
all right, title and interest of the Borrower in and to all, in
such deposit account and the funds deposited therein and shall
enter into an Account Control Agreement with respect to such
accounts acceptable to Agent.
.
Borrower represents, warrants and agrees as follows: (1) upon the
execution of this Agreement by the parties hereto and all other
documents contemplated hereby (as referenced in Section 3.1 above) and as a result of the
filing by Agent of appropriate financing statements in the
appropriate jurisdictions and appropriate documentation with the
FAA, Agent’s Liens in the Collateral are and will be fully
perfected Liens on all Collateral, which Liens are and will, until
the Termination Date, be enforceable as first priority, fully
perfected Liens as against all other creditors of, and purchasers
from, Borrower; (2) all actions necessary or desirable to protect
and perfect such Liens in favor of Agent in all of the Collateral
has been duly taken; (3) Borrower or Owner Trustee, as applicable,
are and will be the sole owner of each such item of the Collateral,
and have and will have good and marketable title to such Collateral
free and clear of any and all Liens except for Permitted Liens; and
(4) no effective security agreement, mortgage, deed of trust,
financing statement, equivalent security or Lien instrument or
continuation statement covering all or any part of the Collateral
is or will be on file or of record in any public office, except
those filed by Borrower in favor of Agent pursuant to the Loan
Documents, and those relating to other Permitted Liens. Borrower
shall defend the right, title and interest of Agent in and to the
Collateral against the claims and demands of all Persons
whomsoever, and shall take such actions, including (i) the prompt
delivery of all original Instruments, Chattel Paper and
certificated Stock owned by Borrower to Agent, (ii) notification of
Agent’s interest in Collateral at Agent’s request, and
(iii) the institution of litigation against third parties as shall
be prudent in order to protect and preserve Borrower’s and
Agent’s respective and several interests in the Collateral.
All Chattel Paper shall be marked with the following
legend:
“THIS WRITING
AND THE OBLIGATIONS EVIDENCED OR SECURED HEREBY ARE SUBJECT TO THE
LIEN OF MUFG UNION BANK, N.A., AS ADMINISTRATIVE
AGENT”
.
3.3.1 In
addition to any and all rights under the Collateral Documents, at
any time after the occurrence and continuance of an Event of
Default (other than Specified Events of Default during the
Forbearance Period), Agent may, at any time in Agent’s own
name or in the name of Borrower, (1) communicate with Account
Debtors, parties to Contracts and Leases, and obligors in respect
of Instruments, Chattel Paper or other Collateral to verify to
Agent’s satisfaction the existence, amount and terms of any
such Accounts, Contracts, Instruments, Chattel Paper, Leases or
other Collateral, and (2) without prior notice to Borrower, notify
Account Debtors, parties to Contracts, parties to Leases, and
obligors in respect of Chattel Paper, Instruments, or other
Collateral that such Collateral has been assigned to Agent and that
payments shall be made directly to Agent. Upon the request of
Agent, Borrower shall so notify such Account Debtors, parties to
Contracts, parties to Leases, and obligors in respect of
Instruments, Chattel Paper, Leases or other
Collateral.
3.3.2 It
is expressly agreed by Borrower and Owner Trustee that Borrower and
Owner Trustee, as applicable, shall remain liable under each
Contract, License and Lease to observe and perform all the
conditions and obligations to be observed and performed by it
thereunder, and Agent shall have no obligation or liability
whatsoever to any Person under any Contract, License or Lease
(between Borrower, Owner Trustee and any Person other than Agent)
by reason of or arising out of the execution, delivery or
performance of this Agreement, and Agent shall not be required or
obligated in any manner (1) to perform or fulfill any of the
obligations of Borrower thereunder, (2) to make any payment or
inquiry, or (3) to take any action of any kind to collect or
enforce any performance or the payment of any amounts which may
have been assigned to it or to which it may be entitled at any time
or times under or pursuant to any Contract, License or
Lease.
3.3.3 For the purposes of allowing
Agent to conduct a Field Examination, Borrower shall, with respect
to each owned, leased, or controlled property or facility, during
normal business hours: (1) provide access to such facility or
property to Agent and any of its officers, employees and Agent, as
frequently as Agent determines to be appropriate; (2) permit Agent
and any of its officers, employees and Agent to inspect, audit and
make extracts from all of Borrower’s Books and Records; and
(3) subject to the Lessee’s rights under any Lease, permit
Agent to inspect, review, evaluate and make physical verifications
and appraisals of any Equipment and other Collateral in any manner
and through any medium that Agent considers advisable, and Borrower
shall provide to Agent, at Borrower’s cost and expense, such
clerical and other assistance as may be requested with regard
thereto. Borrower shall make available to Agent and its
counsel, as quickly as practicable under the circumstances,
originals or copies of all of Borrower’s Books and Records
and any other instruments and documents which Agent may request.
Borrower shall deliver any document or instrument necessary for
Agent, as it may from time to time request, to obtain records from
any service bureau or other Person that maintains records for
Borrower. Agent shall be entitled to cause a Field
Examination to be completed at times and as often as it deems
necessary in its sole discretion. Borrower shall reimburse
Agent upon demand for the expense of such Field Examinations
whether the examination is performed by Agent or a third party
approved by Agent. Borrower’s obligation to reimburse
Agent for the costs of such Field Examinations shall not exceed
$20,000 per year. At all times, it is understood and agreed
by Borrower that all expenses in connection with any such Field
Examination which may be incurred by Borrower, any officers and
employees thereof and the attorneys and independent certified
public accountants therefor shall be expenses payable by Borrower
and shall not be expenses of Agent
or the Lenders nor part of the foregoing
cap.
3.3.4 Upon
the occurrence and during the continuance of an Event of Default,
Borrower, at its own expense, shall cause its independent certified
public accountants to prepare and deliver to Agent at any time and
from time to time, promptly upon Agent’s request: (1) a
reconciliation of all Accounts; (2) an aging of all Accounts; (3)
trial balances; and (4) test verifications of such Accounts as
Agent may request. Borrower, at its own expense, shall cause its
independent certified public accountants to deliver to Agent the
results of (i) any physical verifications of all or any portion of
the Collateral made or observed by such accountants, and (ii) any
verifications of Borrower’s Accounts, in each case when and
if any such verifications are conducted. Agent shall be permitted
to observe and consult with Borrower and Borrower’s certified
public accountants in the performance of these tasks.
3.3.5 In
addition to any and all rights under the Collateral Documents, at
any time after the occurrence and continuance of an Event of
Default (other than the Specified Events of Default during the
Forbearance Period), Agent may, and at the direction of the
Requisite Lender shall, seek to apply any funds in the deposit
accounts of Borrower or any Subsidiary (other than the Restricted
Account, which shall be governed by the terms of Section 2.18) to
the repayment of the Obligations. Borrower hereby authorizes and
directs each bank or other depository to deliver to Agent, upon
request, all balances in any deposit account maintained by such
Person, without inquiry into the authority or right of Agent to
make such request.
. To
the extent permitted by Applicable Law, Borrower hereby irrevocably
makes, constitutes, and appoints Agent (and any of Agent’s
officers, employees or Agent designated by Agent) as
Borrower’s true and lawful attorney-in-fact, with power to:
(a) sign the name of Borrower on any document to be executed,
recorded or filed in order to perfect or continue perfected
Agent’s Lien upon the Collateral if Borrower fails to do so
promptly after request therefor by Agent, including filing any
financing or continuation statement without the signature of
Borrower to the extent permitted by Applicable Law; (b) at any time
after the occurrence and continuance of an Event of Default (other
than the Specified Events of Default during the Forbearance
Period), sign Borrower’s name on any invoice or ▇▇▇▇ of
lading relating to any Account, drafts against Account Debtors,
schedules and assignments of Accounts, verifications of Accounts
and notices to Account Debtors; (c) at any time after the
occurrence and continuance of an Event of Default (other than the
Specified Events of Default during the Forbearance Period), send
requests for verification of Accounts; (d) at any time after the
occurrence and continuance of an Event of Default (other than the
Specified Events of Default during the Forbearance Period), endorse
Borrower’s name on any checks, notices, acceptances, money
orders, drafts, or other forms of payment or security that may come
into Agent’s possession; and (e) at any time that a Default
or Event of Default (other than Specified Events of Default during
the Forbearance Period) has occurred and is continuing, (1) notify
the post office authorities to change the address for delivery of
Borrower’s mail to an address designated by Agent, to receive
and open all mail addressed to Borrower, and to retain all mail
relating to the Collateral and forward all other mail to Borrower,
(2) make, settle, and adjust all claims under Borrower’s
policies of insurance and make all determinations and decisions
with respect to such policies of insurance, and (3) settle and
adjust disputes and claims respecting the Accounts directly with
Account Debtors, for amounts and upon terms which Agent determines
to be reasonable, and Agent may cause to be executed and delivered
any documents and releases which Agent determines to be necessary.
The appointment of Agent as Borrower’s attorney-in-fact, and
each and every one of Agent’s rights and powers, being
coupled with an interest, is irrevocable until all of the
Obligations have been fully repaid and performed and Agent’s
obligation to provide Loans hereunder is terminated. NEITHER
LENDERS NOR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, LENDERS OR
REPRESENTATIVES SHALL BE RESPONSIBLE TO BORROWER FOR ANY ACT OR
FAILURE TO ACT PURSUANT TO THE POWERS GRANTED UNDER THE POWER OF
ATTORNEY HEREIN OR OTHERWISE, EXCEPT FOR ITS OR THEIR OWN GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT, NOR FOR ANY PUNITIVE, EXEMPLARY,
INDIRECT OR CONSEQUENTIAL DAMAGES.
. For
the purpose of enabling Agent to exercise its rights and remedies
under the Loan Documents, Borrower hereby grants to Agent an
irrevocable, non-exclusive license (exercisable only upon the
occurrence and continuance of an Event of Default and without
payment of royalty or other compensation to Borrower) to use,
transfer, license or sublicense any Intellectual Property now
owned, licensed to, or hereafter acquired by Borrower, and wherever
the same may be located, and including in such license access to
all media in which any of the licensed items may be recorded or
stored and to all computer and automatic machinery software and
programs used for the compilation or printout thereof, and Borrower
represents, warrants and agrees that any such license or sublicense
is not and will not be in conflict with the contractual or
commercial rights of any other Person; provided, that such license will
terminate on the Termination Date.
. The
provisions of this Section 3 shall
to the extent permitted by Applicable Law remain in full force and
effect and continue to be effective even if: (a) any petition is
filed by or against Borrower or Owner Trustee for liquidation or
reorganization; (b) Borrower or Owner Trustee becomes
insolvent or makes an assignment for the benefit of creditors; (c)
a receiver or trustee is appointed for all or any significant part
of Borrower’s or Owner Trustee’s assets; or (d) at any
time payment and performance of the Obligations, or any part
thereof, is, pursuant to Applicable Law, rescinded or reduced in
amount, or must otherwise be restored or returned by any obligee of
the Obligations, whether as a “voidable preference,”
“fraudulent transfer” or otherwise, all as though such
payment or performance had not been made. In the event that any
payment, or any part thereof, is rescinded, reduced, restored or
returned, the Obligations and Agent’s Liens in the Collateral
shall be reinstated and deemed reduced only by any amount paid and
not so rescinded, reduced, restored or returned.
.
Subject to Requisite Lenders’ approval (in their sole and
absolute discretion), Agent is authorized to, from time to time,
execute partial releases of Collateral sold by Borrower in
accordance with this Agreement (including in connection with an
Aviation Asset Disposition) from the security interests under the
Loan Documents which partial releases shall be in form reasonably
satisfactory to Agent.
.
Notwithstanding anything herein to the contrary, the Lenders hereby
provide their consent to the sale of the Aircraft 238 and the
release of the security interests and liens granted under the
Collateral Documents with respect to the Aircraft 238,
provided that funds
representing the purchase price paid for the Aircraft 238 of
approximately $2,350,000 less the down payment already in
Agent’s possession and the transaction costs described in
clause (i) of the definition of Net Cash Proceeds are deposited in
the Restricted Account upon closing of such sale. Agent is
authorized to enter into and deliver in connection with such
Disposition appropriate lien releases, filings and related
instruments necessary to effectuate the terms of this provision and
the discharge of the liens granted to Agent under the Collateral
Documents with respect to Aircraft 238, including this
Agreement and the Mortgage, and no further consent of or notice to
the Lenders is required in connection therewith
.
Lenders shall not be obligated to make any Loan, or to take,
fulfill, or perform any other action under this Agreement, until
the following conditions have been satisfied to Agent’s
reasonable satisfaction or waived in writing by Agent:
4.1.1 Agent
shall have received:
(a) originals of the
documents set forth on Schedule
1.1h (Schedule
of Documents), each duly executed by the appropriate parties,
together with such other assurances, certificates, documents or
consents related to the foregoing as Agent and/or Lenders
reasonably may require, all in form and substance satisfactory to
Agent and Lenders;
(b) such documentation
as Agent may reasonably require to establish the due organization,
valid existence and good standing of Borrower, its qualification to
engage in business in each material jurisdiction in which it is
engaged in business or required to be so qualified, its authority
to execute, deliver and perform the Loan Documents to which it is a
party, the identity, authority and capacity of each Authorized
Signatory thereof authorized to act on its behalf, including
certified copies of articles of organization and amendments
thereto, bylaws and operating agreements and amendments thereto,
certificates of good standing and/or qualification to engage in
business, tax clearance certificates, certificates of corporate
resolutions, incumbency certificates, certificates of Authorized
Signatory, and the like;
(c) a list of all of
Borrower’s Material Contracts and a copy of such Material
Contracts requested by Agent;
(d) a copy of all
insurance certificates or other evidence of insurance for the
Collateral;
(e) originals of
favorable written opinions, dated as of the date hereof, of
independent and internal counsel to the Borrower, addressed to
Agent and Lenders (and their respective participants and assigns)
and otherwise in form and substance satisfactory to Agent as to
such matters as Agent shall determine;
(f) copies of all
consents and authorizations of, permits from or filings with, any
Governmental Authority or other Person required in connection with
the execution, delivery, performance or enforceability of the Loan
Documents or any provision thereof and no material changes in
governmental regulations affecting the Borrower, Agent or the
Lenders shall have occurred;
(g) (i) a certified
lien search for the State of Delaware and the State of California
with respect to the Borrower and each of its Subsidiaries, (ii) an
International Registry search with respect to each applicable item
of Equipment; (iii) an FAA search with respect to each applicable
item of Equipment, (iv) a Federal tax lien search with respect to
the Borrower and each of its Subsidiaries, and any other searches
as may be required by Agent; and
(h) the “chattel
paper” original of each Lease, which thereafter until the
Termination Date shall be held by Agent or McAfee & ▇▇▇▇ as
Agent’s designee or such other party as Agent may designate;
provided Agent
shall not be liable in the event of any damage, loss or destruction
of any of such documents or instruments.
4.1.2 All of the financing statements
and other documentation described in Section 3.1.7 shall have been filed with the
appropriate Governmental Authorities, and Agent shall hold a first
priority perfected Lien in the Collateral, for the ratable benefit
of Lenders, subject only to Permitted Liens.
4.1.3 With respect to all Equipment,
and subject to Section 6.23,
the following statements shall be true, and Agent shall have
received evidence reasonably satisfactory to it (including, with
respect to each item of Equipment which is eligible for
registration with the International Registry, a printout of the
“priority search certificate” from the International
Registry showing the Equipment Owner’s ownership interest
with respect to such Equipment under a contract of sale) with
respect to each item of Equipment and any related Lease to the
effect that:
(a) the
Borrower is in compliance with the applicable requirements of the
Mortgage and Applicable Law;
(b) the applicable
Equipment Owner has good title under Applicable Law to such item of
Equipment, free and clear of Liens other than (i) Permitted Liens
and (ii) the Lien of Agent;
(c) the
Borrower has completed all registrations and filings required by
any Aviation Authority in such jurisdiction and Agent shall hold a
first priority Lien on each item of Equipment under Applicable Law
(or with respect to Assets for which a pre-filing has been made,
Agent shall be the beneficiary of a second priority Lien on such
Equipment, and documentation sufficient to terminate any first
priority lien on such Equipment shall have been delivered to Agent
or to an escrow with such documentation to be filed promptly
thereafter) and has provided, or is in a position to provide, all
opinions of independent counsel as required by Agent;
(d) Agent
shall have received evidence reasonably satisfactory to it
(including, with respect to each Cape Town Eligible Lease, a
printout of the “priority search certificate” (as
defined in the Regulations for the International Registry) from the
International Registry relating to the Lessor’s interest in
and International Interest with respect to such item of Equipment
under such Lease and including, with respect to
all Leases that are not Cape Town Eligible, an original, favorable
written opinion of independent counsel addressed to Agent and
Lenders (and their respective participants and assigns) with
respect to Agent’s Lien on such item of
Equipment;
(e) with respect to
each item of Equipment which is eligible for registration with the
International Registry, Agent shall have received a printout of the
“priority search certificate” from the International
Registry showing the Equipment Owner’s ownership interest
with respect to such Equipment under a contract of sale;
and
(f) with respect to an
item of Equipment that is owned by an Owner Trustee, if any, or
with respect to each Lease to a Lessee domiciled or whose chief
executive office is located in a non-U.S. jurisdiction, Agent shall
have received the documentation set forth in the definition of
“Aviation Asset Requirements” (including, without
limitation, the Owner Trustee Guaranty(ies), Owner Trustee
Mortgage(s), Trust Agreement(s), and Beneficial Interest Pledge
Agreement(s)).
4.1.4 No
action, proceeding, investigation, regulation or legislation shall
have been instituted, threatened or proposed before any court,
Governmental Authority or legislative body to enjoin, restrain or
prohibit, or to obtain damages in respect of, or which is related
to or arises out of, this Agreement or any other Loan Document or
the consummation of the transactions contemplated hereby or thereby
and which, in any Lender’s sole judgment, would make it
inadvisable to consummate the transactions contemplated by this
Agreement or any other Loan Document;
4.1.5 No
circumstance or event shall have occurred, including but not
limited to any litigation, actions, suits, proceedings or
investigations pending as to Borrower, that constitutes a Material
Adverse Effect as of the Closing Date;
4.1.6 All
of the representations and warranties of Borrower under this
Agreement shall be true and correct as of the Closing
Date;
4.1.7 Borrower
shall be in compliance with all the terms and provisions of the
Loan Documents, and no Default or Event of Default (other than the
Specified Events of Default) shall have occurred and be
continuing;
4.1.8 (a) Agent
shall have completed its independent business and legal due
diligence, including but not limited to financial, legal and
insurance reviews, with results satisfactory to Agent, and
(b) if Borrower qualifies as a “legal entity
customer” under the Beneficial Ownership Regulation, it shall
have provided a Beneficial Ownership Certification to Agent if so
requested;
4.1.9 Each
Lender and Agent each shall have obtained satisfactory credit or
other required internal approval(s) in connection with the
transactions contemplated by this Agreement and the Loan
Documents;
4.1.10 Receipt
of a fully-executed amended engagement letter for ▇. ▇▇▇▇▇’▇
engagement by Borrower, satisfactory to all Lenders.
4.1.11 Borrower’s board of
directors, at Borrower’s costs, shall have engaged a
consultant (“Financial
Advisor/Consultant”) for Borrower to report to
Borrower’s board of directors, which Financial
Advisor/Consultant to be selected from candidates submitted by
Lenders and the terms of whose engagement and scope of work and
responsibilities set forth in the engagement letter approved by
Lenders.
4.1.12 All
legal matters relating to the Loan Documents shall be satisfactory
to Sheppard, Mullin, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, legal counsel to
MUFG Union Bank, N.A., in all of its capacities hereunder;
and
4.1.13 Agent
shall have received Account Control Agreements, in form and
substance satisfactory to Agent, for the deposit accounts
maintained by Borrower (other than the Restricted Account) and
Guarantor Subsidiaries.
If any
other term of any Loan Document should conflict, or appear to
conflict, with this Section 4.1,
the terms of this Section 4.1
shall control, and Borrower shall have no rights under this
Agreement or any other Loan Document until each of the conditions
of this Section 4.1
has been complied with to Agent’s and Lenders’
satisfaction or specifically waived in a writing by
Lenders.
.
Except as otherwise provided in this Section 4.2,
Borrower agrees to deliver to Agent each item required to be
delivered to Agent under this Agreement as a condition precedent to
the Closing Date. Borrower agrees to deliver to Agent the following
items:
4.2.1 Within
thirty (30) days of the Closing Date, evidence reasonably
satisfactory to Agent of completion of all registrations and
filings required by any Aviation Authority in each applicable
foreign jurisdiction and necessary for Agent to hold a first
priority Lien on each item of Equipment subject to the Applicable
Law of such foreign jurisdiction (including the Marketed Aircraft),
along with a favorable written opinion of independent counsel
addressed to Agent and Lenders (and their respective participants
and assigns) with respect to Agent’s Lien on such item of
Equipment under such Applicable Law or, to the extent such
registrations and filings under such Applicable Law are not
required to maintain Agent’s first priority Lien on such item
of Equipment, a written opinion to such effect from independent
counsel addressed to Agent and Lenders (and their respective
participants and assigns); and
4.2.2 Within thirty (30) days of the
Closing Date (as such period may be extended by Agent in its sole
and absolute discretion), the Lessee Letters for the Leases in
effect on the Closing Date to the extent such Lessee Letters are
not delivered by the Closing Date.
Borrower
represents, warrants and agrees that from and after the Closing
Date and until the Termination Date:
.
Borrower is a corporation duly formed, validly existing and in good
standing under the Applicable Law of Delaware. Borrower is duly
qualified or registered to transact business and is in good
standing in Delaware and California and in each other jurisdiction
in which the conduct of its business or the ownership or leasing of
its Property makes such qualification or registration necessary and
in which the failure to be so qualified or registered could have a
Material Adverse Effect. Borrower has all requisite power and
authority to conduct its business, to own, pledge, mortgage or
otherwise encumber and operate its Property, to lease the Property
it operates under lease, to conduct its business as now or proposed
to be conducted, to execute and deliver each Loan Document to which
it is a party and to perform its Obligations. Borrower is in
compliance with all Applicable Law and other legal requirements
applicable to its business, has obtained all authorizations,
consents, approvals, orders, licenses and permits from, and has
accomplished all filings, registrations and qualifications with, or
obtained exemptions from any of the foregoing from, any
Governmental Authority that are necessary for the transaction of
its business.
. The
locations of Borrower’s executive offices, principal place of
business, corporate offices, warehouses, other locations of
Collateral and locations where all of Borrower’s records with
respect to Collateral are kept are as set forth in Schedule 5.2
and, except as set forth in such schedule, such locations have not
changed during the preceding twelve (12) months. Borrower shall not
change its (a) name, (b) chief executive office, (c) principal
place of business or jurisdiction of formation, or (d) location of
its records concerning the Collateral, without, in each instance,
giving thirty (30) days’ prior written notice thereof to
Agent and taking all actions deemed necessary or appropriate by
Agent to protect and perfect Agent’s Liens continuously upon
the Collateral.
. The
execution, delivery and performance by Borrower, any Owner Trustee,
and any Subsidiary of the Loan Documents to which each is a party
have been duly authorized by all necessary corporate action, and do
not and will not:
5.3.1 Require
any consent or approval not heretofore obtained of any member,
partner, director, stockholder, security holder or creditor of such
party;
5.3.2 Violate
or conflict with any provision of such party’s operating
agreement, charter, articles of incorporation or bylaws, as
applicable;
5.3.3 Result
in or require the creation or imposition of any Lien (other than
pursuant to the Loan Documents) or Right of Others upon or with
respect to any Property now owned or leased or hereafter acquired
or leased by such party;
5.3.4 Violate
any Applicable Law applicable to such party; or
5.3.5 Result
in a breach of or constitute a default under, or cause or permit
the acceleration of any obligation owed under, any indenture or
loan or credit agreement or any other Contractual Obligation to
which such party is a party or by which such party or any of its
property is bound or affected; and such party is not in violation
of, or default under, any Applicable Law or Contractual Obligation,
or any indenture, loan or credit agreement, in any
respect.
.
Except as previously obtained or made, no authorization, consent,
approval, order, license or permit from, or filing, registration or
qualification with, any Governmental Authority is or will be
required to authorize or permit under Applicable Law the execution,
delivery and performance by Borrower, Owner Trustee and any
Subsidiary of the Loan Documents to which it is a
party.
.
Borrower has no Subsidiaries as of the Closing Date other than JHC,
JMC, JFC, and ACY 15129 and the Excluded Subsidiaries consisting of
ACY SN 19002 Limited, ACY SN 19003 Limited, and ACY E-175
LLC.
.
Borrower has furnished to Lender the audited Financial Statements
of Borrower as of the Fiscal Year ending December 31, 2019
(including balance sheets and income statements). The financial
information contained therein fairly presents in all material
respects the financial condition, results of operations and changes
in financial position of Borrower as of such date and for such
period.
.
Borrower and its Subsidiaries do not have any material liability or
material contingent liability required under GAAP to be reflected
or disclosed, and not reflected or disclosed, in the balance sheets
described in Section 5.6
other than liabilities and contingent liabilities arising in the
ordinary course of business since the date of such Financial
Statements. Except as set forth on Schedule
5.7, as of the Closing Date, no circumstance or event has
occurred that constitutes a Material Adverse Effect.
.
Borrower and its Subsidiaries have valid title to the Property,
including all Equipment, as reflected in the balance sheet
described in Section 5.6,
other than items of Property or exceptions to title which are in
each case immaterial and Property subsequently sold or disposed of
in the ordinary course of business. Such Property is free and clear
of all Liens and Rights of Others, other than those described in
Schedule 5.7
and Permitted Liens and Permitted Rights of Others.
.
Borrower and its Subsidiaries own, or possess, the right to use to
the extent necessary in their respective businesses, all
Intellectual Property, and no such Intellectual Property conflicts
with the valid Intellectual Property of any other Person. Except as
set forth in Schedule
5.9, Borrower has not used any trade name, trade style or
“dba” during the five year period ending on the Closing
Date.
.
Except for matters set forth in Schedule
5.10, there are no actions, suits, proceedings or
investigations pending as to which Borrower or any of its
Subsidiaries have been served or have received notice or, to the
best knowledge of Borrower, threatened against or affecting
Borrower or any of its Subsidiaries or any Property of any of them,
the Collateral, or any other transactions contemplated by this
Agreement.
. Each
of the Loan Documents to which Borrower, Owner Trustee, and any
Subsidiary is a party will, when executed and delivered by such
party, constitute the legal, valid and binding obligation of such
party, enforceable against such party in accordance with its
terms.
. No
event has occurred and is continuing that is a Default or Event of
Default other than the Specified Events of Default.
.
Neither Borrower nor any of its Subsidiaries has any Pension Plans.
Neither Borrower nor any of its Subsidiaries has incurred or
expects to incur any withdrawal liability to any Multiemployer Plan
(as defined herein). As used herein, “Pension Plan”
means any “employee pension benefit plan” (as such term
is defined in Section 3(2) of ERISA) and “Multiemployer
Plan” means any employee benefit plan of the type described
in Section 001(a)(3) of ERISA to which Borrower or any of its ERISA
affiliates contributes or is obligated to contribute.
. No
part of the proceeds of any Loan hereunder will be used to purchase
or carry, or to extend credit to others for the purpose of
purchasing or carrying, any margin stock in violation of Regulation
U. Neither Borrower nor any of its Subsidiaries is or is required
to be registered as an “investment company” under the
Investment Company Act of 1940.
. No
written statement made by an Authorized Signatory to Lender in
connection with this Agreement, or in connection with any Loan, as
of the date thereof contained any untrue statement of a material
fact or omitted a material fact necessary to make the statement
made not misleading in light of all the circumstances existing at
the date the statement was made.
.
Borrower and its Subsidiaries have filed all Tax returns which are
required to be filed, and have paid, or made provision for the
payment of, all Taxes with respect to the periods, Property or
transactions covered by said returns, or pursuant to any assessment
received by Borrower or any of its Subsidiaries, except such Taxes,
if any, as are being contested in good faith by appropriate
proceedings and as to which adequate reserves have been established
and maintained.
.
Except as described in Schedule
5.17, as of the Closing Date (a) neither Borrower nor any of
its Subsidiaries at any time has disposed of, discharged, released
or threatened the release of any Hazardous Materials in violation
of any Environmental Laws, (b) to the best knowledge of Borrower,
no condition exists that violates any Environmental Law affecting
any real property owned by Borrower or any of its Subsidiaries,
(c) no real property or any portion thereof is or has been
utilized by Borrower or any of its Subsidiaries as a site for the
manufacture of any Hazardous Materials and (d) to the extent that
any Hazardous Materials are used, generated or stored by Borrower
or any of its Subsidiaries on any real property, or transported to
or from such real property by Borrower or any of its Subsidiaries,
such use, generation, storage and transportation are in compliance
with all Environmental Laws.
. Upon
the execution and delivery of all of this Agreement and the
Collateral Documents and the completion of all actions to perfect
the security interests so created, as set forth in Section 3.1.7,
Agent will hold a valid first priority security interest in the
Collateral described therein securing the Obligations.
.
Schedule
5.19 lists all current insurance of any nature maintained by
Borrower, as well as a summary of the terms of such insurance
provided Schedule
5.19 shall list insurance for Equipment leased pursuant to
an Eligible Lease. Borrower shall deliver to Agent endorsements to
all of its (a) “All Risk” and business interruption
insurance policies naming Agent as loss payee, and (b) general
liability and other liability policies naming Agent as an
additional insured. All policies of insurance on real and personal
property will include an endorsement, in form and substance
acceptable to Agent, showing loss payable to Agent (Form 438 BFU or
equivalent) and extra expense and business interruption
endorsements. Such endorsement, or an independent instrument
furnished to Agent, will provide that the insurer will endeavor to
give at least thirty (30) days’ prior written notice to Agent
before any such policy or policies of insurance shall be canceled.
Upon the occurrence and continuation of a Default or Event of
Default, Borrower hereby directs all present and future insurers
under its and its Subsidiaries’ “All Risk”
policies of insurance to pay all proceeds payable thereunder
directly to Agent for the ratable benefit of Lenders. Agent
reserves the right at any time, upon review of Borrower’s
risk profile, to require additional forms and limits of insurance
to adequately protect Lenders’ interests in accordance with
Agent’s normal practices for similarly situated borrowers,
and if the circumstances are unusual, in Agent’s sole
opinion.
. Each
of the following is true and correct with respect to each Lease for
an item of Equipment:
5.20.1 The
amounts of rent and other amounts due under each Lease, as shown on
the Borrower’s Books and Records and on any statement or
schedule delivered to Agent in connection therewith, are the true
and correct amounts actually owed to the Borrower and the other
Lessors;
5.20.2 The
Borrower has not and will not enter into any agreement with a
Lessee of any Equipment which provides, directly or indirectly, for
the crediting of any obligation or liability of the Borrower to
such Lessee against future rentals accruing under the Lease, other
than as provided therein;
5.20.3 The
Lessor delivered to Agent or its designee an original counterpart
of such Lease;
5.20.4 The
documents and information delivered to Agent pursuant to
Section 4 with
respect to such Equipment and Leases have been so delivered;
and
5.20.5 All
rentals, fees, costs, expenses and charges paid or payable by the
Lessee under any Lease, including without limitation, any brokerage
and other fees paid to the Borrower do not violate any Applicable
Law relating to the maximum fees, costs, expenses or charges that
can be charged in any jurisdiction in which any Equipment is
located or in which the corresponding Lessee is located, or in
which a transaction was consummated, or in any other jurisdiction
which may have jurisdiction with respect to any such Equipment,
Lease or Lessee.
.
5.21.1 The
Borrower is (a) a “Transactional User Entity” (as such
term is defined in the Regulations for the International Registry);
(b) “situated”, for the purposes of the Cape Town
Convention, in the United States; and (c) has the “power to
dispose” (as such term is used in the Cape Town Convention)
of the Equipment;
5.21.2 The
Equipment are “aircraft objects” (as such term is
defined in the Cape Town Convention);
5.21.3 The
Borrower has identified any and all Cape Town Eligible Leases, and
has notified Agent of such Leases, in writing;
5.21.4 The
payment of principal of and interest on the Notes, and the
performance by the Borrower of the Obligations, are
“associated rights” (as such term is defined in the
Cape Town Convention) with respect to the Equipment.
. The
Borrower’s depreciation policies with respect to the
Equipment are as set forth on Schedule
5.22. These policies have been in effect substantially
without change since January 1, 1998.
. As of
the Closing Date, Borrower is not a party to a Swap Contract,
except that Borrower was a party to MUFG Bank Swap Contracts and
the transactions thereunder have been closed out, giving rise to
the MUFG Bank Swap Termination Value.
. A
list of all items of Equipment subject to a Lease in effect as of
the Closing Date is set forth in Schedule 1.1b.
.
Borrower shall or shall cause any other Person, as applicable, to
(i) register with the FAA and/or International Registry and/or
create a Lien in favor of Agent under Applicable Law, and
thereafter maintain, such Lien and, as applicable, the
International Interest of each Mortgage and Owner Trustee Mortgage,
if any, and the International Interest of each Lease with a Lessee
domiciled or with its chief executive office in a Contracting
State; and (ii) maintain the rights and International Interests of
the Equipment Owner in the Equipment, as against any third parties
under Applicable Law and as against all third parties, whether in
any Contracting State under the Cape Town Convention or
otherwise.
.
Borrower is, and after giving effect to the transactions
contemplated hereby, will be, Solvent. “Solvent” for
purposes of this Agreement means, with respect to any Person, that
the aggregate present fair saleable value of such Person’s
assets is in excess of the total amount of its probable liabilities
on its existing debts as they become absolute and matured, such
Person has not incurred debts beyond its foreseeable ability to pay
such debts as they mature, and such Person has capital adequate to
conduct the business it is presently engaged in or is about to
engage in.
.
Borrower, its Subsidiaries and their respective officers and
employees and to the knowledge of Borrower its directors and
agents, are in compliance with Anti-Corruption Laws and applicable
Sanctions in all material respects. Borrower has implemented and
maintains in effect for itself and its Subsidiaries policies and
procedures to ensure compliance by Borrower, its Subsidiaries, and
their respective officers, employees, directors, and agents with
Anti-Corruption Laws and applicable Sanctions. None of Borrower,
any of its Subsidiaries or, to the knowledge of Borrower, any
director or officer of Borrower or any of its Subsidiaries is an
individual or entity that is, or is 50% or more owned (individually
or in the aggregate, directly or indirectly) or controlled by
individuals or entities (including any agency, political
subdivision or instrumentality of any government) that are (i) the
target of any Sanctions or (ii) located, organized or resident in a
country or territory that is, or whose government is, the subject
of Sanctions, currently Crimea, Cuba, Iran, North Korea and
Syria.
.
Schedule 5.28 is a true,
correct and complete list of all banks and other financial
institutions at which Borrower or any Subsidiary maintains deposit
accounts, and such schedule correctly identifies the name, address
and telephone number of each bank or other institution, the name in
which the account is held, a description of the purpose of the
account, and the complete account number therefor.
So long
as any portion of the Loan remains in force and/or any Obligation
remains unpaid, Borrower shall, and shall cause its Subsidiaries
to:
. Pay
and discharge promptly all Taxes, assessments and governmental
charges or levies imposed upon any of them, upon its respective
Property or any part thereof and upon its respective income or
profits or any part thereof, except that Borrower and its
Subsidiaries shall not be required to pay or cause to be paid any
Tax that is not yet past due, or is being contested in good faith
by appropriate proceedings so long as the relevant entity has
established and maintains adequate reserves for the payment of the
same.
.
Preserve and maintain its respective existences in the jurisdiction
of its formation and all material authorizations, rights,
franchises, privileges, consents, approvals, orders, licenses,
permits, or registrations from any Governmental Authority that are
necessary for the transaction of its respective business and
qualify and remain qualified to transact business in each
jurisdiction in which such qualification is necessary in view of
its respective business or the ownership or leasing of its
respective Property.
.
Maintain, or, with respect to Property subject to Leases, require
the Lessees to maintain, in good working order and condition,
consistent with industry practice and standards (taking into
consideration normal wear and tear), all of its Property and not
permit any waste thereof, and, in the ordinary course of business,
make all needful and proper repairs, replacements, additions and
improvements thereto as are necessary for the conduct of its
business, except that the failure to maintain, preserve and protect
a particular item of Property that is at the end of its useful life
or that is not of significant value, either intrinsically or to the
operations of Borrower, shall not constitute a violation of this
covenant.
.
Maintain or cause Lessee(s), as applicable, liability, casualty and
other insurance (subject to customary deductibles and retentions)
on all Property with responsible insurance companies in such
amounts and against such risks as is carried by responsible
companies engaged in similar businesses and owning similar assets
in the general areas in which Borrower and its Subsidiaries operate
and shall furnish to Lenders statements of its insurance coverage
and shall promptly, upon Agent’s request, furnish other or
additional insurance deemed necessary by Agent to the extent that
such insurance may be available. Borrower shall take all actions
required to maintain the foregoing insurance and/or to comply with
all requirements of such insurance coverage. Agent shall be named
as additional insureds on all liability insurance, all risk ground
and flight coverage for damage or loss of the related Equipment,
and war risk insurance (if applicable) and Agent shall be named as a loss
payee under all hull insurance policies insuring the Collateral.
Borrower shall deliver to Agent endorsements to all of its (a)
“All Risk” and business interruption insurance policies
naming Agent as loss payee, and (b) general liability and other
liability policies naming Agent as an additional insured. All
policies of insurance on real and personal property will include an
endorsement, in form and substance acceptable to Agent, showing
loss payable to Agent (Form 438 BFU or equivalent) and extra
expense and business interruption endorsements. Such endorsement,
or an independent instrument furnished to Agent, will provide that
the insurer will give at least thirty (30) days’ prior
written notice to Agent before any such policy or policies of
insurance shall be canceled. Upon the occurrence and continuation
of a Default or Event of Default, Borrower hereby directs all
present and future insurers under its and its Subsidiaries’
“All Risk” policies of insurance to pay all proceeds
payable thereunder directly to Agent for the ratable benefit of
Lenders. Agent reserves the right at any time, upon review of
Borrower’s risk profile, to require additional forms and
limits of insurance to adequately protect Lenders’ interests
in accordance with Agent’s normal practices for similarly
situated borrowers, and if the circumstances are unusual, in
Agent’s sole opinion.
.
Comply with all Applicable Law, except that Borrower and its
Subsidiaries need not comply with an Applicable Law then being
contested by any of them in good faith by appropriate proceedings.
The Borrower will maintain in effect and enforce policies and
procedures designed to ensure compliance by Borrower, its
Subsidiaries and their respective directors, officers, employees
and agents with Anti-Corruption Laws and applicable
Sanctions.
. At
any time during regular business hours and as often as requested,
permit Agent, or any authorized employee or representative thereof,
to examine, audit and make copies and abstracts from the records
and books of account of, and to visit and inspect the Property of,
Borrower and its Subsidiaries and to discuss the affairs, finances
and accounts of Borrower and its Subsidiaries with any of its
officers, key employees or accountants. In addition, Agent
shall have the right to cause a Field Examination to be completed
as described in Section 3.3.3.
In addition, Borrower shall provide Lenders’ Consultant
reasonable access during normal business hours to the offices,
properties, officers, employees, accountants, auditors, counsel and
other representatives, books and records of Borrower and its
Subsidiaries, and furnish to Lenders’ Consultant such
financial, operating and property related data and other
information as Lenders’ Consultant reasonably requests.
Borrower hereby (1) agrees and acknowledges that all of
Lenders’ Consultant's analyses, conclusions, reports and
other work product are confidential and covered by the
attorney-work product privilege and the common interest privilege
and, consequently, are exempt from disclosure to Borrower, any
Subsidiary or any other Person, (2) acknowledges and agrees
that Agent, the Lenders and Lenders’ Consultant may use and
share, without liability, among themselves and their respective
advisors, attorneys, consultants, accounts, and agents information
regarding Borrower and any Subsidiary, the Collateral, the Credit
Facility and the Loan Documents, including, without limitation,
personally identifiable information and data, financial
information, projections, lessee information, and (3) waives any
rights or claims with respect to such use or sharing, including
regarding financial privacy and data protection laws and
regulations.
. Keep
adequate records and books of account reflecting all financial
transactions in conformity with GAAP, consistently applied, and in
material conformity with all applicable requirements of any
Governmental Authority having regulatory jurisdiction over Borrower
and its Subsidiaries.
.
Promptly and fully comply with all Contractual Obligations to which
any one or more of them is a party, except for any such Contractual
Obligations (a) the performance of which would cause a Default or
(b) then being contested by any of them in good faith by
appropriate proceedings.
. Use
the proceeds of the Loans only for the purposes set forth in this
Agreement. Borrower will not request any Loan, and will not use,
and Borrower will ensure that its Subsidiaries and its or their
respective directors, officers, employees and agents shall not use,
the proceeds of any Loan 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. Borrower will not, directly or indirectly,
use the proceeds of the Loans, or lend, contribute or otherwise
make available such proceeds to any subsidiary, joint venture
partner or other Person, (i) to fund any activities or business of
or with any Person, or in any country or territory, that, at the
time of such funding, is, or whose government is, the subject of
Sanctions, or (ii) in any other manner that would result in a
violation of Sanctions by any Person (including any Person
participating in the Loans, whether as underwriter, advisor,
investor, or otherwise).
. Keep
and maintain all real property used and/or owned by Borrower and
any of its Subsidiaries and each portion thereof in compliance in
all material respects with all applicable Environmental Laws and
promptly notify Lender in writing (attaching a copy of any
pertinent written material) of (a) any and all material
enforcement, cleanup, removal or other governmental or regulatory
actions instituted, completed or threatened in writing by a
Governmental Authority pursuant to any applicable Hazardous
Materials Laws, (b) any and all material claims made or threatened
in writing by any Person against Borrower relating to damage,
contribution, cost recovery, compensation, loss or injury resulting
from any Hazardous Materials and (c) discovery by any senior
officer of any of Borrower of any material occurrence or condition
on any real property adjoining or in the vicinity of such real
property that could reasonably be expected to cause such real
property or any part thereof to be subject to any restrictions on
the ownership, occupancy, transferability or use of such real
property under any applicable Hazardous Materials
Laws.
. Other
than (i) JHC, (ii) JMC, (iii) JFC, (iv) ACY 15129 and
(v) the Excluded Subsidiaries consisting of ACY SN 19002
Limited, ACY SN 19003 Limited, and ACY E-175 LLC, Borrower shall
not create nor allow to exist any Subsidiary.
. (a)
Pay and discharge or cause to be paid and discharged all
Obligations in a timely manner; (b) pay and discharge, or cause to
be paid and discharged, its Indebtedness in the ordinary course of
business prior to an Event of Default; (c) pay and discharge,
or cause to be paid and discharged promptly, all Charges; and (d)
pay all lawful claims for labor, materials, supplies and services
or otherwise, before any thereof shall become in
default.
. (a)
Conduct its business substantially as now conducted or as otherwise
permitted hereunder; and (b) at all times maintain, preserve and
protect all of the Collateral and keep the same in good repair,
working order and condition consistent with industry practices and
standards (taking into consideration ordinary wear and tear and
excluding inventory and parts which by their nature may not be in
good repair, working order or condition) and from time to time
make, or cause to be made, all necessary or appropriate repairs,
replacements and improvements thereto consistent with industry
practices and standards.
. At
any time and from time to time, upon the written request of Agent
and at the sole expense of Borrower, promptly and duly execute and
deliver any and all such further instruments and documents and take
such further action as such Agent may reasonably request to obtain
the full benefits of this Agreement and to protect, preserve and
maintain all respective parties’ rights in the Collateral and
under this Agreement. Upon the occurrence and continuation of a
Default or Event of Default and as often as Agent may thereafter
require, Borrower will supplement each Schedule to this Agreement
with respect to any matter hereafter arising that, if existing or
occurring as of the Closing Date, would have been required to be
set forth or described in such Schedule; provided, that such supplement shall not
be deemed to be an amendment thereof unless expressly consented to
in writing by Agent.
.
Transfer or cause to be transferred to Agent the Excess Cash as of
the end of each Fiscal Quarter (as demonstrated by a Compliance
Certificate delivered to Agent pursuant to Section 8.1.2
hereof) to pay down the Obligations in an amount equal to 100% of
such Excess Cash. The transfer of such Excess Cash in accordance
with the foregoing shall be done not later than the date of
delivery to Agent of the Compliance Certificate. Agent is hereby
authorized to make such transfer.
.
Provide a subordination, on terms satisfactory to Agent, of any
fees paid to any Subsidiaries or Affiliates of Borrower pursuant to
ongoing contractual arrangements for services provided to Borrower,
including without limitation, licensing, management and marketing
fees.
.
Borrower shall cause the Disposition of Equipment owned by it or
any Subsidiary and the Excluded Assets (such a sale, an
“Aviation Asset
Disposition”) and use the Net Cash Proceeds from the
Aviation Asset Disposition to pay down the Obligations. Each
individual Aviation Asset Disposition shall be subject to
Agent’s and Requisite Lenders’ consent in their
respective sole and absolute discretion.
. Affix
and maintain or use its best efforts to cause each Lessee under a
Lease to affix to and maintain on all item(s) of Equipment a
placard bearing an inscription substantially in the form attached
hereto as Exhibit I or such
other inscription as Agent from time to time may reasonably
request. The Borrower shall, on a quarterly basis, provide to Agent
a list of all Equipment subject to a Lease indicating, to the best
knowledge of the Borrower, which items of Equipment have placards
affixed and on which no such placard is affixed.
.
Maintain its method of depreciating its assets substantially
consistent with past practices as set forth in Schedule
5.22 and
promptly notify Agent of any deviation from such
practices.
. At
its expense, cause (i) the registration with the International
Registry of the International Interests with respect to the
Mortgage and each Lease with a Lessee domiciled or with its chief
executive office in a Contracting State or otherwise create a Lien
in favor of Agent under Applicable Law, and (ii) maintain the
rights and International Interests of the Equipment Owner in the
Equipment or otherwise maintain such Lien, as against any third
parties under Applicable Law and as against all third parties,
whether in any Contracting State under the Cape Town Convention or
otherwise. The Borrower agrees to furnish Agent with copies of all
documents relating to the foregoing and with recording and
registration data as promptly as practicable following the issuance
of the same by the FAA, the International Registry, or such other
Person under Applicable Law.
.
Provide prompt notice to Agent of any amendment or termination of
the JMC Management Agreement.
.
Comply with the following requirements by the following
deadlines:
(a) 5:00 p.m. Eastern
Time on May 6, 2020 deadline for Borrower to present to Lenders a
letter of intent by a prospective interested party on such
party’s letterhead dated not earlier than April 8, 2020
(“LOI”)
that provides for a transaction that would, if executed, repay the
Obligations under the Loan Documents owed to Agent and the Lenders
and the due and payable Lender Hedging Obligations in an amount and
transaction structure satisfactory to all Lenders by the Strategic
Alternative Closing Milestone (defined below) (such a transaction,
the “Strategic
Alternative”). The requirement to deliver such LOI in
accordance with this Section is referred to herein as the
“Strategic
Alternative LOI Milestone”. For clarity, (i) multiple
▇▇▇▇ for multiple transactions (e.g., an LOI for refinancing a portion
of the Obligations and another LOI for the sale of certain
aircraft) would be acceptable as long as (1) the aggregate Net
Cash Proceeds generated from such transactions, if executed, would
be sufficient to repay the Obligations by the Strategic Alternative
Closing Milestone in an amount satisfactory to all Lenders and (2)
the requirements to close the transaction under each such LOI are
consistent with those of the transaction under each other LOI part
of the group of ▇▇▇▇ for the multiple transactions such that no
such transaction under any LOI is effectively not feasible as a
result of the terms of the LOI for another transaction. The Lenders
shall have forty-eight (48) hours to provide their consent or
rejection to the Agent of the LOI satisfying the Strategic
Alternative LOI Milestone. To the extent no consent or rejection is
provided by such deadline by a Lender, such Lender will be
considered to have consented that such LOI satisfies the Strategic
Alternative LOI Milestone.
(b) 5:00 p.m. Eastern
Time on June 29, 2020 deadline for Borrower to receive and present
to Lenders a fully-executed (tentative or generally non-binding)
agreement on the terms and conditions of a purchase agreement for a
transaction that would, if executed, repay the Obligations by the
Strategic Alternative Closing Milestone in an amount and
transaction structure satisfactory to all Lenders with the terms
and conditions reflected in a revised document among the Company
and buyer (the “Revised Transaction
Letter”), which Revised Transaction Letter provides
for an exclusivity period with respect to the assets covered
thereby and a good faith deposit that is deposited in the
Restricted Account within ten (10) Business Days of the execution
such Revised Transaction Letter (the “Exclusivity Milestone”).
For clarity, (i) Revised Transaction Letters for multiple
transactions (e.g., for
refinancing a portion of the Obligations and another for the sale
of certain aircraft) would be acceptable as long as (1) the
aggregate net cash proceeds generated from such transactions, if
executed, would be sufficient to repay the Obligations by the
Strategic Alternative Closing Milestone in an amount satisfactory
to all Lenders and (2) the requirements to close each transaction
under each such Revised Transaction Letter is consistent with those
of the other transactions contemplated under the other Revised
Transaction Letters such that no such transaction is effectively
not feasible as a result of the terms of any of the other Revised
Transaction Letters. The Lenders shall have forty-eight (48) hours
to provide their consent or rejection to the Agent of the Revised
Transaction Letter satisfying the Exclusivity Milestone. To the
extent no consent or rejection is provided by such deadline by a
Lender, such Lender will be considered to have consented that such
Revised Transaction Letter satisfies the Exclusivity
Milestone.
(c) 5:00 p.m. Eastern
Time on August 15, 2020 deadline for Borrower to close the
Strategic Alternative, at which time Borrower shall cause the Net
Cash Proceeds of the Strategic Alternative to be used to pay the
Obligations in an amount satisfactory to all Lenders (the
“Strategic
Alternative Closing Milestone”).
(d) Failing to meet
any of (i) the Strategic Alternative LOI Milestone,
(ii) the Exclusivity Milestone or (iii) the Strategic
Alternative Closing Milestone shall result in an immediate Event of
Default (a “Strategic Alternative Event of
Default”), which Strategic Alternative Event of
Default may not be waived without consent of all
Lenders.
. Agent
shall possess a first priority security interest in any Equipment
included in the Collateral which shall be (i) electronically
recorded on the International Registry (Cape Town Convention), (ii)
filed with the FAA in the case of (A) any Aircraft that are
registered with the FAA and (B) all Engines, whether or not
attached to an Aircraft or a Leased Spare Engine, and (iii)
promptly, to the satisfaction of Agent, and as soon as practical
and in any event within thirty (30) days following registration
with the International Registry, perfected through all additional
required local foreign jurisdiction security conventions (if any)
to secure the payment, promptly when due. Borrower shall execute a
Lessee Letter for each Lease.
. Cause
all Lessees of Equipment to maintain adequate maintenance and usage
records in English in accordance with applicable aviation
regulations.
.
Comply with the following:
(a) If an Excluded
Asset is no longer pledged as collateral for any Permitted Excluded
Subsidiary Financing and such Asset remains owned by the Excluded
Subsidiary, Borrower shall promptly notify the Agent thereof and,
at sole option of Agent, either (i) cause such Excluded
Subsidiary to become a Subsidiary Guarantor hereunder by causing
its assets to be subjected to a Lien securing the Obligations,
including its execution of a Subsidiary Guaranty and Security
Agreement, and will take such actions as shall be necessary or
shall be requested by the Lenders to grant and perfect such Liens,
or (ii) cause such Excluded Subsidiary to sell its assets
(including its Excluded Assets) and to make a distribution of the
proceeds thereof to Borrower, and cause such proceeds upon receipt
by Borrower to be used to satisfy the Obligations.
(b) Except as provided
in subsection (c) below, if the sale or disposition of an Excluded
Asset generates funds in excess of the amount sufficient to prepay
or repay the Permitted Excluded Subsidiary Financing secured by
such Excluded Asset and pay the third-party costs associated with
such prepayment or repayment and sale (the “Excess Proceeds”),
Borrower shall immediately cause the Excluded Subsidiary holding
such Excess Proceeds to make a distribution of such amount to
Borrower and then cause such amount upon receipt by Borrower to be
used to satisfy the Obligations.
(c) So long as the
loan tranche under the Excluded Subsidiary Facility owing by any of
the Excluded Subsidiaries which owns the Aircraft described on
Schedule 1.1d
and bearing serial numbers, respectively, 19002 (the
“Air Nostrum 1
Aircraft”) and 19003 (the “Air Nostrum 2 Aircraft ”
and, together with Air Nostrum 1 Aircraft, the
“Air Nostrum
Aircraft”) (with such Excluded Subsidiaries referred
to herein, respectively, as the “Air Nostrum 1 Borrower”
and the “Air Nostrum
2 Borrower”, with the Air Nostrum 1 Borrower and Air
Nostrum 2 Borrower referred to herein together as the
“Air Nostrum
Borrower”) remains outstanding, then the following
shall apply:
(1) With respect to
Excess Proceeds from Aircraft that is an Excluded Asset other than
Air Nostrum Aircraft, such Excess Proceeds may be applied as
provided in the Excluded Subsidiary Facility (as documented on
February 7, 2019), which provides for the application of such
Excess Proceeds, promptly following availability, to be used, to
prepay (in full or in part) the indebtedness under the Excluded
Subsidiary Facility by such Excluded Subsidiary that owns such
Aircraft or any other Excluded Subsidiary.
(2) With respect to
Excess Proceeds from either Air Nostrum Aircraft, such Excess
Proceeds shall, promptly following availability, be used to satisfy
the loan tranche under the Excluded Subsidiary Facility owing by
the other Air Nostrum Borrower (and owing by either Air Nostrum 1
Borrower or Air Nostrum 2 Borrower) to the extent such loan tranche
is then outstanding.
(d) Once the applicable
loan tranches of the Excluded Subsidiary Facility secured by an
Excluded Asset are repaid, the Excluded Subsidiary that owned such
Excluded Asset shall be dissolved promptly following the sale of
such Excluded Asset (subject to requirements set forth in
Applicable Law, including United Kingdom revenue and commercial law
if such Excluded Subsidiary is organized in the United Kingdom)
unless Agent requests that it become a Subsidiary Guarantor in
accordance with clause (a)(i) of this Section or designates it as
an Immaterial Subsidiary (subject to the satisfaction of the
factors in the definition of “Immaterial
Subsidiary”).
.
Comply with the following:
(a) use the proceeds of
the PPP Loan during the PPP Covered Period to pay for only the
allowable purposes under the CARES Act for the PPP Loan to qualify
for loan forgiveness under the PPP Loan Forgiveness
Requirements;
(b) maintain such
documentation and take such actions as shall be required to
evidence compliance with the PPP Loan Forgiveness
Requirements;
(c) promptly after the
end of the PPP Covered Period, but in no event more than ten (10)
Business Days thereafter, submit an application to the holder of
the debt in respect of the PPP Loan (or the party servicing the PPP
Loan on behalf of the holder of such debt), and any other party
required to receive such application, for loan forgiveness with
respect to the PPP Loan, in accordance with PPP Loan Forgiveness
Requirements, and deliver written notice to Agent that such
application has been submitted to such parties;
(d) promptly, but not
later than ten (10) days after forgiveness of the PPP Loan is
obtained, deliver to Agent evidence of such
forgiveness;
(e) promptly (but in
any event within two (2) Business Days), deliver to Agent notice of
(i) any default, breach or event of default under any PPP Loan
documentation, setting forth the details of such default, breach or
event of default, and (ii) copies of all material notices and other
documents and materials received or delivered pursuant to any PPP
Loan documentation; and
(f) promptly upon
request, take such other actions as Agent or the Lenders may
request in connection with the foregoing.
An
immediate Event of Default shall occur if the PPP Loan ceases to be
eligible for forgiveness.
Borrower covenants
and agrees that, from the Closing Date until the Termination Date,
Borrower and its Subsidiaries shall not, directly or indirectly, by
operation of law or otherwise:
. Amend
its certificate of incorporation or formation documents that could
have or reasonably be expected to have a Material Adverse
Effect.
. Take
any action or omit to take any action, which act or omission would
constitute a material default or a material event of default
pursuant to, or noncompliance with, any contract, lease (including
any Leases), mortgage, deed of trust or instrument to which it is a
party or by which it or any of its property is bound, or any
document creating a Lien and which would have a Material Adverse
Effect on Borrower’s business.
.
Cancel or modify any debt owing to it, except for reasonable
consideration in the ordinary course of its business or which would
not have a Material Adverse Effect on Borrower’s financial
condition.
. Allow
Cash or any other Collateral to be directly or indirectly
transferred to any Restricted Subsidiary; provided that, so long as no Default or
Event of Default (other than the Specified Events of Default during
the Forbearance Period) then exists, Borrower may transfer to the
JFC Bank Account at any one time funds sufficient to satisfy the
JFC Obligations projected to be due and payable in the next thirty
(30) days.
. Make
any sale, transfer or other disposition in any single transaction
or series of related transactions of any asset or group of related
assets of Borrower or any of its Subsidiaries, whether now owned or
hereafter acquired (“Disposition”), except
(i) a Disposition (other than an Aviation Asset Disposition)
by Borrower to a Wholly-Owned Subsidiary that is not a Restricted
Subsidiary and (ii) Aviation Asset Disposition in accordance
with Section 6.17.
. Merge
or consolidate with or into any Person.
.
Directly or indirectly use the proceeds of any Loan or Collateral
in connection with the Acquisition of part or all of a voting
interest in any corporation or other business entity.
. Make
any Distribution, whether from capital, income or otherwise,
whether in Cash or other Property.
.
Create or maintain any Pension Plans or incur any withdrawal
liability to any Multiemployer Plan (as defined
herein).
. Make
any material change in the nature of the business of Borrower and
its Subsidiaries, taken as a whole, or at any time, permit any
Change in Control to occur.
. Not
enter into any Swap Contract, unless (i) such Swap Contract was
entered into by such Person in the ordinary course of business for
the purpose of directly mitigating risks associated with
liabilities, commitments, investments, assets, or property held or
reasonably anticipated by such Person, or changes in the value of
securities issued by such Person, and not for purposes of
speculation, (ii) such Swap Contract does not contain any provision
exonerating the non-defaulting party from its obligation to make
payments on outstanding transactions to the defaulting party other
than normal setoff or netting rights, and (iii) Borrower
obtains Agent’s prior written approval (which may be
withheld, delayed or conditioned in Agent’s sole and absolute
discretion).
.
Create, incur, assume or suffer to exist any Lien or Negative
Pledge of any nature upon or with respect to any of its respective
Property or any Collateral or engage in any sale and leaseback
transaction with respect to any of its respective Property or any
Collateral, whether now owned or hereafter acquired,
except:
7.12.1 Liens
and Negative Pledges under the Loan Documents;
7.12.2 Permitted
Liens;
7.12.3 [Reserved];
7.12.4 Liens securing purchase money
Indebtedness permitted by Section 7.13.3
on and limited to the capital assets acquired, constructed or
financed with the proceeds of such Indebtedness or with the
proceeds of any Indebtedness directly or indirectly refinanced by
such Indebtedness; provided that such Liens do not
at any time encumber assets other than the Property financed by
such Indebtedness and the Indebtedness secured thereby does not
exceed the cost or fair market value, whichever is lower, of the
Property being acquired on the date of acquisition;
7.12.5 Liens
securing Lender Hedging Obligations; or
7.12.6 Liens
on the Excluded Assets and the equity interests in the Excluded
Subsidiaries, securing the Permitted Excluded Subsidiary
Financing.
.
Create, incur or assume any Indebtedness or guaranty obligation
except:
7.13.1 Indebtedness
and Guaranteed Indebtedness under the Loan Documents;
7.13.2 Indebtedness
and Guaranteed Indebtedness owed to Borrower or any of its
Subsidiaries (other than a Restricted Subsidiary);
7.13.3 Indebtedness consisting of
Capital Lease Obligations, or otherwise incurred to finance the
purchase or construction of capital assets (which shall be deemed
to exist if the Indebtedness is incurred at or within ninety (90)
days before or after the purchase or construction of the capital
asset), or to refinance any such Indebtedness; provided that the aggregate
amount of all such Indebtedness at any one time outstanding shall
not exceed $25,000;
7.13.4 Indebtedness
related to Lender Hedging Obligations;
7.13.5 Guaranteed
Indebtedness in support of the obligations of a Wholly-Owned
Subsidiary (other than a Restricted Subsidiary), provided that such obligations are not
prohibited by this Agreement; and
7.13.6 Permitted
Indebtedness.
. Make,
or suffer to exist, any loan or advance or extend any credit to any
Person, including, without limitation, any Affiliate of the
Borrower other than, but to the extent not otherwise prohibited
hereunder:
7.14.1 advances
to Affiliates (other than Restricted Subsidiaries) in the ordinary
course of business not to exceed $25,000.00 in the aggregate
outstanding at any time;
7.14.2 trade
credit with Affiliates (other than Restricted Subsidiaries)
advanced in the ordinary course of business on overall terms at
least as favorable to Borrower or its Subsidiaries as would be the
case in an arm’s length transaction between unrelated parties
of equal bargaining power; and
7.14.3 transactions
between or among Borrower and its Subsidiaries to the extent they
do not give rise to any Indebtedness or Guaranteed
Indebtedness.
.
Permit (whether or not otherwise permitted under Section 7.13)
any Subsidiary to create, incur, assume or suffer to exist any
Indebtedness or guaranty obligation, except (a) Indebtedness and
Guaranteed Indebtedness (i) under the Loan Documents or (ii)
in existence on the Closing Date and described on Schedule 1.1f,
(b) Indebtedness owed (other than from a Restricted
Subsidiary) to Borrower or another Subsidiary (other than a
Restricted Subsidiary) of Borrower (to the extent not otherwise
prohibited hereunder), (c) Capital Lease Obligations and purchase
money obligations of a Subsidiary in respect of Property used or
leased by that Subsidiary (subject to the limitations in
Sections 7.12.4
and 7.13.3; and (d) with respect to the
Excluded Subsidiaries, the Permitted Excluded Subsidiary
Financing.
.
Notwithstanding anything to the contrary in this Agreement or any
other Loan Document:
7.16.1 permit
any Restricted Subsidiary (i) to possess any Assets; provided however, that the
Excluded Subsidiaries may possess the Excluded Assets or any Cash,
Cash Equivalents or other proceeds other than proceeds from the
ownership and operation of the Excluded Assets; provided further, that JFC may possess
at any one time Cash sufficient to pay the JFC Obligations in an
amount not greater than the amount forecasted to be due and payable
in the next thirty (30) days thereafter; (ii) incur any
Indebtedness or Liens other than those permitted in accordance with
the Permitted Excluded Subsidiary Financing; (iii) to conduct any
business other than, with respect to the Excluded Subsidiaries,
owning and operating the Excluded Assets (and activities incidental
thereto); or (iv) except as otherwise permitted under Section 7.1, to
amend its organizational documents;
7.16.2 create,
assume, incur or suffer to exist any Lien on or in respect of any
of its Assets for the benefit of any Restricted
Subsidiary;
7.16.3 transfer,
cause to be transferred, to any Restricted Subsidiary, any Assets
constituting Collateral or of the type of Asset constituting
Collateral (including, but not limited to, Cash) (except to the
extent permitted under Section 7.4);
or
7.16.4 make
any Investment in any Restricted Subsidiary other than ownership of
the Stock thereof.
. Issue
or otherwise grant shares of stock to any new shareholders unless
(i) Agent has confirmed that such transaction would not cause a
violation of the Patriot Act and (ii) such new shareholder(s) has
executed a stock pledge agreement and stock power in favor of Agent
for the ratable benefit of Lenders, in form and substance
satisfactory to Agent.
.
Purchase, redeem, retire or otherwise acquire, directly or
indirectly, or make any sinking fund payments or declare or pay any
dividends with respect to, any shares of its Stock now or hereafter
outstanding or set apart any sum for any such purpose; nor agree
(or cause or permit any Subsidiary to agree) with any third party
to prohibit, condition or restrict the payment of dividends and
distributions by such Subsidiary to Borrower or to another
Subsidiary.
. Make
or suffer to exist any Investment, other than:
7.19.1 Investments
in existence on the Closing Date and disclosed on Schedule 7.19;
7.19.2 Investments
consisting of Cash Equivalents;
7.19.3 [reserved];
7.19.4 Investments
consisting of reasonable and customary business-related advances to
officers, directors and employees of Borrower and its Subsidiaries
for travel, entertainment, relocation and analogous ordinary
business purposes not to exceed $25,000 in the aggregate at any
time outstanding;
7.19.5 Investments in a Subsidiary that
is a Wholly-Owned Subsidiary (to the extent not otherwise
prohibited hereunder); provided that Borrower shall not
(a) create or allow to exist any Subsidiary unless such
Subsidiary (excluding any Immaterial Subsidiary and, subject to
Section 6.25,
any Excluded Subsidiary) shall have executed and delivered to the
Agent a guaranty and a security agreement each in form acceptable
to the Agent creating in favor of the Agent a first priority
perfected Lien on its assets, and, if Agent so requests in its
discretion, Borrower shall have delivered to Agent a pledge of 100%
of the stock of such Subsidiary in form and substance satisfactory
to Agent) or (b) acquire (including, without limitation, by way of
share exchange) any part or amount of the Stock or assets of, or
make any Investments in, any other Person except Investments
otherwise expressly permitted under this Agreement;
7.19.6 Investments
consisting of the extension of credit to customers or suppliers of
Borrower and its Subsidiaries in the ordinary course of business
not otherwise prohibited hereunder and any Investments received in
satisfaction or partial satisfaction thereof;
7.19.7 Investments
received in connection with the settlement of a bona fide dispute
with another Person; or
7.19.8 Investments
representing all or a portion of the sales price of Property sold
or services provided to another Person.
.
Directly or indirectly, open, maintain or otherwise have deposit
accounts, except (i) the Restricted Account, (ii) any other
deposit account with respect to which Agent has an Account Control
Agreement, and (iii) as long as Borrower remains in compliance with
Section 7.4,
the JFC Bank Account. Borrower shall, and shall cause each
Subsidiary (other than an Excluded Subsidiary) to, not hereafter
establish and maintain any deposit account unless (1) Borrower
shall have given the Agent thirty (30) days’ prior written
notice (or such lesser notice period as the Agent may agree to) of
its intention to establish such new deposit account with a
depository bank, (2) such depository bank shall be acceptable to
the Agent and, (3) such depository bank and Borrower (or any
such Subsidiary) shall have duly executed and delivered to the
Agent, within twenty (20) Business Days of the date of establishing
such deposit account, an Account Control Agreement with respect to
such deposit account.
.
7.21.1 New
Leases. Borrower shall not enter into a Lease with respect
to any Equipment except a Lease that constitutes an Eligible
Lease.
7.21.2 Lease
Amendments. Borrower shall not enter into any amendment of
any Lease (other than the Specified Leases) involving a
modification of lease payments, residual value guaranty, the term
of such Lease or the return conditions of the Equipment subject
thereto, except with the prior written approval of Requisite
Lenders (in their sole discretion).
.
Borrower represents, warrants and agrees that, from and after the
Closing Date until the Termination Date, Borrower shall deliver, or
cause to be delivered, to Agent:
8.1.1 within
sixty (60) days following the end of each of the first three (3)
Fiscal Quarters for each Fiscal Year, (unless an extension is
approved by the SEC), SEC Form 10-Q of Borrower for such Fiscal
Quarter; provided
that the timely
▇▇▇▇▇ SEC filing of such Form 10-Q, along with delivery of a hard
or .pdf copy to Agent of such Form 10-Q, shall satisfy this
requirement; provided further that if any such Form
10-Q is not filed with the SEC within such sixty (60) day time
period, then Borrower shall instead deliver, or cause to be
delivered, to Agent internally prepared consolidated Financial
Statements of Borrower and its Subsidiaries (including income
statement, balance sheet, and statement of cash flows) on or before
the end of the sixty (60) day period;
8.1.2 within five (5) Business Days
following the end of each Fiscal Quarter, a certification from
Borrower, in the form of a Compliance Certificate;
8.1.3 within
ninety (90) days following the end of each Fiscal Year, (unless an
extension is approved by the SEC) or, in any event, within fifteen
(15) days of a timely filing with the SEC, (a) the consolidated
Financial Statements of Borrower for such Fiscal Year; (b) an
unqualified report and opinion by an independent certified public
accounting firm acceptable to Agent with respect to such Financial
Statements, (c) any management letters of such public accounting
firm addressed to Borrower, and (d) internally prepared
consolidating unaudited balance sheets of Borrower and its
consolidated Subsidiaries (for clarity, including Excluded
Subsidiaries), as of the end of such Fiscal Year and the related
consolidating unaudited statements of income and cash flow of
Borrower and its consolidated Subsidiaries (for clarity, including
Excluded Subsidiaries) for such Fiscal Year setting forth in each
case in comparative form the figures for the corresponding previous
year, and certified by an Authorized Signatory of Borrower as being
prepared in accordance with GAAP and fairly stated in all material
respects; provided
that the timely
▇▇▇▇▇ SEC filing of a Form 10-K, along with delivery of a hard or
..pdf copy to Agent of such Form 10-K, shall satisfy the
requirements of subsections 8.1.3(a) and (b); provided further, that if such Form 10-K
is not filed with the SEC within such ninety (90) day time period,
then the Borrower shall instead deliver, or cause to be delivered,
to Agent internally prepared consolidated Financial Statements of
Borrower and its Subsidiaries for such Fiscal Year (including
income statement, balance sheet, and statement of cash flows) on or
before the end of the period ending one hundred five (105) days
after the end of the Fiscal Year;
8.1.4 Within
(30) days following the end of each calendar month, internally
prepared consolidating unaudited balance sheets of Borrower and its
consolidated Subsidiaries (for clarity, including Excluded
Subsidiaries), as of the end of such month, and the related
consolidating unaudited statements of income, and cash flows of
Borrower and its consolidated Subsidiaries (for clarity, including
Excluded Subsidiaries) for such fiscal month, setting forth in each
case in comparative form the figures for the corresponding periods
in the previous year, and certified by an Authorized Signatory of
Borrower as being prepared in accordance with GAAP and fairly
stated in all material respects;
8.1.5 as
soon as practicable and in any event within fifteen (15) days after
the end of each calendar month, (i) a report listing all
Leases of Equipment; and (ii) and a lease receivables aging report,
which covers both Leases under which the Lessees are current and
Leases under which the Lessees are delinquent (all of the foregoing
in form and substances reasonably satisfactory to Agent and
certified by an Authorized Signatory);
8.1.6 [Reserved];
8.1.7 as
soon as available, but in any event within fifteen (15) days after
the end of June 30 and December 31 of each Fiscal Year, two
substantially concurrent Appraisals, each performed by a different
Appraiser acceptable to Agent and at Borrower’s expense, with
respect to all Equipment and Excluded Assets. In addition, upon the
request of any Lender, Borrower shall permit Agent to retain an
Appraiser to conduct additional Appraisals, which shall be
performed at Borrower’s expense once per Fiscal Year with
subsequent additional Appraisals at the requesting Lender’s
expense;
8.1.8 [Reserved];
8.1.9 concurrently
with the submission to the lender under the Excluded Subsidiary
Facility, unaudited Financial Statements of the Excluded
Subsidiaries that are borrowers thereunder (required to be
delivered under the Excluded Subsidiary Facility within one hundred
eighty (180) days after the end of each Fiscal Year of the Excluded
Subsidiaries);
8.1.10 promptly
upon their becoming available, copies of any
(a) correspondence or notices received by the Borrower or any
Subsidiary from any Governmental Authority which regulates the
operations of the Borrower or any Subsidiary, including as to
environmental matters and Hazardous Material, relating to an actual
or threatened change or development which would have, or would
reasonably be expected to have, a Material Adverse Effect on the
Borrower or any Subsidiary; (b) written reports submitted to the
Borrower by its independent accountants in connection with any
annual or interim audit of the books of the Borrower made by such
accountants; and (c) any appraisals received by the Borrower or any
Subsidiary with respect to its Assets;
8.1.11 promptly,
notice in writing of (i) any litigation, legal proceeding or
dispute, other than disputes in the ordinary course of business or,
whether or not in the ordinary course of business, involving
amounts, individually or in the aggregate, in excess of
$200,000.00, affecting the Borrower or any Subsidiary as a
defendant, whether or not fully covered by insurance, and
regardless of the subject matter thereof, or, if no monetary
amounts are claimed in connection therewith, which proceeding or
dispute, if determined or resolved against the Borrower or any
Subsidiary is reasonably likely to have a Material Adverse Effect
on the Borrower or any Subsidiary, (ii) any cancellation or
threatened cancellation by any insurance carrier of any insurance
policy or policies carried by the Borrower or by any of its
Subsidiaries on the assets and properties of the Borrower or any
Subsidiary or (iii) any resignation or termination of any director
or executive or senior officer of the Borrower;
8.1.12 promptly,
and in any event within five (5) Business Days, notify in writing
the Agent of any material damage to or other Event of Loss with
respect to any Eligible Assets;
8.1.13 promptly
upon the earlier of the date on which the Borrower becomes aware
or, in the exercise of reasonable due diligence should have become
aware of the same, notify the Agent by telephone (to be confirmed
within one (1) day in writing from the Borrower to Agent and each
Lender) of the occurrence of any of the following:
(a) any
Default;
(b) with respect to the
Excluded Subsidiary Facility, (i) any default or event of
default thereunder, (ii) the commencement of exercise of
remedies by or on behalf of NordLB, (iii) any lessee of the
collateral thereunder becoming delinquent or is otherwise in
default under its lease;
(c) any default or
event of default any other contract or contracts and the default or
event of default involves payments by the Borrower in an aggregate
amount equal to or in excess of $200,000.00;
(d) a default or event
of default under or as defined in any evidence of or agreements for
any Indebtedness for borrowed money under which the
Borrower’s liability is equal to or in excess of $200,000.00,
individually or in the aggregate, whether or not an event of
default thereunder has been declared by any party to such agreement
or any event which, upon the lapse of time or the giving of notice
or both, would become an event of default under any such agreement
or instrument or would permit any party to any such instrument or
agreement to terminate or suspend any commitment to lend to the
Borrower or to declare or to cause any such indebtedness to be
accelerated or payable before it would otherwise be
due;
(e) any change in any
Applicable Law, including, without limitation, changes in Tax laws
and regulations, which would have a Material Adverse Effect on the
Borrower or any Subsidiary;
(f) any litigation,
administrative proceeding, investigation, business development, or
change in financial condition which could reasonably have a
Material Adverse Effect on the Borrower or any
Subsidiary;
(g) any instance in
which Equipment are operated (x) on routes with respect to which it
is customary for air carriers flying comparable routes to carry
confiscation or expropriation insurance or (y) in any area
designated by companies providing such coverage as a recognized or
threatened war zone or area of hostilities or an area where there
is a substantial risk of confiscation or
expropriation;
8.1.14 promptly
upon receipt thereof or concurrently with delivery thereof by the
Borrower, as the case may be, copies of any correspondence,
requests, reports, statements, claims, consents, notices or other
documents of any kind received or sent by the Borrower under or
with respect to any Material Contract which evidence or relate to
an event or circumstance which would have, or would reasonably be
expected to have, a Material Adverse Effect on the Borrower or any
Subsidiary;
8.1.15 promptly
upon the filing thereof with the SEC one copy of each Financial
Statement, report, notice or proxy statement sent by the Borrower
to stockholders generally, and, a copy of each regular or periodic
report, and any registration statement, or prospectus in respect
thereof, filed by the Borrower with any securities exchange or with
federal or state securities and exchange commissions or any
successor agency; and
8.1.16 subject
to the prohibitions set forth in Section 7.1
hereof, promptly deliver to the Agent copies of any material
amendments, modifications or supplements to (i) certificate of
incorporation or by-laws and (ii) any Material Contract, certified,
with respect to the certificate of incorporation, by the
appropriate state officials, and, with respect to the other
foregoing documents, by the secretary or assistant secretary of the
Borrower.
.
Continue on a bi-weekly basis, based on the timeline in place prior
to Closing Date, to deliver to Agent a 13-week cash flow model (a
“Cash Flow
Budget”), in form and substance acceptable to Agent,
along with a variance report (“Cash Flow Variance
Report”) on both a week by week basis and a
cumulative, weekly roll-forward basis through the end of the
immediately preceding week, a comparison of the actual cash
disbursements to the projected cash disbursements and the actual
cash receipts to the projected cash receipts, each as set forth in
the Cash Flow Budget for such period.
.
Continue on a monthly basis, based on the timeline in place prior
to Closing Date, to deliver to Agent (i) a twelve (12) month
rolling cash-basis forecast of the maintenance cash disbursements
related to the Collateral and Excluded Assets (“Maintenance Expense
Report”). Each such Maintenance Expense Report shall
provide a breakdown forecast with respect to each item of such
assets, be consistent with the form attached hereto as Schedule 8.3 and as otherwise in form
and substance satisfactory to Agent, and (ii) a variance
report, on both a month-by-month basis and a cumulative, monthly
roll-forward basis through the end of the immediately preceding
month, comparing the actual cash disbursements to the projected
cash disbursements for such period.
.
Continue on a bi-weekly basis, based on the timeline in place prior
to Closing Date, to deliver to Agent a detailed report containing
the following information, satisfactory to the Lenders, regarding
all aircraft and engines that are part of the Collateral (the
“Collateral
Report”): (i) the base location of the Collateral
covered thereby and the country in which each aircraft is
registered and the countries to which it is flown by its Lessee,
(ii) whether such Collateral is on Lease, (iii) if it is on Lease,
whether there is a default under such Lease and, if there is such a
default, a description of the default and Borrower’s intended
action with respect thereto, and (iv) with respect to Marketed
Aircraft, an accounting of the ongoing expenses for storage,
insurance and similar expenses for such Collateral, the date and
time of any visits by or on behalf of Borrower to monitor such
Collateral and the name of the person(s) undertaking such visits
(beginning with the most recent visit made as of the date hereof
and continuing for any visits made thereafter). The Collateral
Report shall be consistent with the form provided by Borrower to
Agent prior to the Closing Date and as otherwise in form and
substance satisfactory to Agent.
.
Continue to deliver, within twenty (20) days after each calendar
month, to Agent a report (the “Maintenance Reserve Liability
Report”), in form and substance satisfactory to Agent,
for the latest period for which the Lessee has provided utilization
information detailing the following information for each Aircraft
constituting part of the Collateral:
8.5.1 the
amount of all maintenance reserves collected from the applicable
Lessee on account of such maintenance expenses less the total of
all prior contributions to maintenance paid out by Borrower
pursuant to such Lease (the “Maintenance Reserves
Balance”) as of the last report;
8.5.2 the
amount of maintenance reserves collected since the previous
report;
8.5.3 the
amount of any Lessee maintenance reserves claims paid out by
Borrower since the last report;
8.5.4 the
current ending Maintenance Reserves Balance as of the date of the
report;
8.5.5 the
amount of any maintenance reserves claims submitted from the Lessee
since the last report that are in the process of being verified by
Borrower but not yet paid out; and
8.5.6 whether
under the terms of the applicable Lease, (1) the Maintenance
Reserves Balance remaining at lease end, after lessee has complied
with its rental and return obligations, is refundable to Lessee, or
may be retained by Borrower and (2) whether such Lessee can offset
any future rent or residual payments under its applicable Lease
against the amount of such Maintenance Reserves
Balance.
. Make
available on as frequently as a weekly basis, (i) senior
management of Borrower and, at Borrower’s option or upon
request of Agent, Borrower’s financial advisor, Financial
Advisor/Consultant or other advisors for meetings or conference
calls with Agent and the Lenders (and their representatives and
consultants), and (ii) senior management of Borrower,
Financial Advisor/Consultant and ▇. ▇▇▇▇▇ for conference calls with
Agent and Lenders’ advisors, in either case at such dates and
times to be provided by Agent upon reasonable notice. The purpose
of such meetings will be to discuss the status of the financial,
collateral, and operational condition, businesses, liabilities,
assets, and prospects of Borrower and the Collateral, any sale,
refinance or other strategic transaction efforts. Borrower
and its Subsidiaries shall promptly provide copies of all
non-privileged non-confidential written materials provided to, or
produced by, Borrower or Subsidiaries in connection with any sale,
refinance, other strategic transaction efforts (including, without
limitation, any letters of intent, confidentiality agreements,
draft purchase documents, commitment letters, and correspondence to
or from any Governmental Authority) and material third party
reports relating to the financial, collateral, or operational
performance of Borrower and the Collateral or any other
non-privileged non-confidential written material as Agent may
reasonably request from time to time. Without limiting the
foregoing, Borrower agrees to notify Agent immediately upon either
Borrower becoming aware of any material change or development
relating to any sale or refinance efforts or to the financial,
collateral, or operational condition, businesses, assets,
liabilities, or prospects of Borrower or the Collateral. Borrower
agrees to cause, and hereby irrevocably authorizes, its Financial
Advisor/Consultant to deliver to Agent and the Lenders such
information as Agent and the Lenders may request concerning the
Collateral, sale or refinance efforts related thereto, and the
financial or operational condition of the businesses, assets,
liabilities, or prospects of Borrower, and, in the event of
termination of the services of the Financial Advisor/Consultant,
the reasons for such termination.
. In
connection with the submission of each Cash Flow Variance Report
submitted for the Cash Flow Budget on a bi-weekly basis, deliver to
Agent a report (the “Bank Account Report”)
setting forth the following information for each bank account held
by Borrower and its Subsidiaries: (i) the name of the Person on the
account, (ii) the institution where the account is held, (iii) the
type of the account, (iv) the account number redacted except for
the last 4 digits, and (v) the balance of such account as of the
last week covered by the Cash Flow Variance Report.
.
Provide to Lenders’ Consultant on a weekly basis all offers
received regarding the Collateral and Excluded Assets, any
refinancing offers and any related transactional
documents.
.
Provide to Agent and Lenders on a weekly basis a report, in the
form attached hereto as Schedule
8.9 (the “Bid
Summary Report”) and as otherwise approved by Agent,
containing a list of all bids on assets / refinancing offers
received to date, list of aircraft involved in each bid, and
economic return of each bid for the Lenders (with the bidder name
may be redacted).
.
Borrower shall, upon the request of any Lender or Agent, furnish to
Agent such other reports in connection with the affairs, business,
financial condition, operations, prospects or management of
Borrower or the Collateral, all in reasonable detail, and Borrower
shall advise Agent promptly, in reasonable detail, of: (a) any
Lien, other than Permitted Liens, attaching to or asserted against
any of the Collateral; (b) any material change in the composition
of the Collateral; and (c) the occurrence of any other event which
could reasonably be expected to have a Material Adverse
Effect.
. The
occurrence of any one or more of the following events (regardless
of the reason therefor) shall constitute an “Event of
Default” under this Agreement:
9.1.1 Borrower shall fail to make any
regularly scheduled payment of principal or interest in respect of
any Obligations within three (3) Business Days after the same shall
become due and payable or is declared due and payable (provided that no grace period shall
apply to nonpayment of the Obligations on the Maturity Date);
or
9.1.2 Borrower
or Owner Trustee, as applicable, shall fail or neglect to perform,
keep or observe any of the covenants, promises, agreements,
requirements, conditions or other terms, Obligations (other than
under Section 9.1.1) or provisions contained in this
Agreement or any of the other Loan Documents and such default shall
have continued for a period of thirty (30) days after Agent’s
or any Lender’s notice to Borrower and/or Owner Trustee, as
applicable, of such default hereunder; provided, there shall be no
grace period for Borrower’s failure to perform, keep or
observe any of the covenants, promises, agreements, requirements,
conditions or other terms or provisions contained in Section 4.2,
Sections 6.9,
6.15, 6.17,
and 6.22 and Section 7
(except for Section 7.12);
or
9.1.3 an
event of default shall occur under any Indebtedness to which
Borrower or a Subsidiary is a party, or by which any such Person or
its property is bound, and such event of default (1) involves the
failure to make any payment, whether of principal, interest or
otherwise, and whether due by scheduled maturity, required
prepayment, acceleration, demand or otherwise, in respect of any
Indebtedness (other than the Obligations) of such Person in an
aggregate amount exceeding $200,000, or (2) causes (or permits any
holder of such Indebtedness or a trustee to cause) such
Indebtedness, or a portion thereof, in an aggregate amount
exceeding $200,000 to become due prior to its stated maturity or
prior to its regularly scheduled dates of payment; or
9.1.4 any
representation or warranty in this Agreement or any other Loan
Document, or in any written statement, report or certificate
pursuant hereto or thereto, shall be untrue or incorrect in any
material respect as of the date when made or deemed to be made by
the Borrower or any Subsidiaries; or
9.1.5 any of the assets of Borrower
or any Subsidiary having a value of $1,000,000 or more shall be
attached, seized, levied upon or subjected to a writ or distress
warrant or come within the possession of any receiver, trustee,
custodian or assignee for the benefit of creditors of such Person,
and any of the foregoing shall remain unstayed or undismissed for
sixty (60) consecutive days; or any Person other than Borrower or
any Subsidiary shall apply for the appointment of a receiver,
trustee or custodian for the assets of Borrower or any Subsidiary
and the order appointing such receiver, trustee or custodian shall
remain unstayed or undismissed for sixty (60) consecutive days; or
Borrower or any Subsidiary shall have concealed, removed or
permitted to be concealed or removed, any part of its Property with
intent to hinder, delay or defraud its creditors or any of them or
made or suffered a transfer of any of its property or the incurring
of an obligation which may be fraudulent under any bankruptcy,
fraudulent transfer or other similar law; or
9.1.6 a case or proceeding shall have
been commenced involuntarily against Borrower or any Subsidiary in
a court having competent jurisdiction seeking a decree or order:
(1) under the Bankruptcy Code or any other applicable Federal,
state or foreign Debtor Relief Law, and seeking either (i) the
appointment of a custodian, receiver, liquidator, assignee, trustee
or sequestrator (or similar official) of such Person or of any
substantial part of its properties, or (ii) the reorganization or
winding up or liquidation of the affairs of any such Person and
such case or proceeding shall remain undismissed or unstayed for
sixty (60) consecutive days or such court shall enter a decree or
order granting the relief sought in such case or proceeding; or (2)
invalidating or denying (i) any Person’s right, power, or
competence to enter into or perform any of its obligations under
any Loan Document, or (ii) the validity or enforceability of this
Agreement or any other Loan Document or any action taken hereunder
or thereunder; or
9.1.7 Borrower or any Subsidiary
shall (1) file a petition under the Bankruptcy Code or any other
applicable Federal, state or foreign bankruptcy or other similar
law, (2) consent to the institution of proceedings thereunder or to
the filing of any such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee
or sequestrator (or similar official) of any such Person or of any
substantial part of its properties, (3) fail generally to pay (or
admit in writing its inability to pay) its debts as such debts
become due, or (4) take any corporate action in furtherance of any
such action; or
9.1.8 final
judgment or judgments (after the expiration of all times to appeal
therefrom) for the payment of money in excess of $1,000,000 in the
aggregate shall be rendered against Borrower or any Subsidiary,
unless the same shall be (i) fully covered by insurance (subject to
any contractual deductibles) and the issuer(s) of the applicable
policies shall have acknowledged substantial coverage in writing
within fifteen (15) days of judgment, or (ii) vacated, stayed,
bonded, paid or discharged within a period of fifteen (15) days
from the date of such judgment; or
9.1.9 Borrower
or any Subsidiary voluntarily or involuntarily dissolves or is
dissolved, terminates or is terminated; or
9.1.10 Borrower
or any Subsidiary is enjoined, restrained, or in any way prevented
by the order of any court or other Governmental Authority, the
effect of which order restricts such Person from conducting all or
any material part of its business; or
9.1.11 the
loss, suspension, revocation or failure to renew any License or
permit now held or hereafter acquired by Borrower or any
Subsidiary, which loss, suspension, revocation or failure to renew
could reasonably be expected to have a Material Adverse Effect;
or
9.1.12 any
Lien or any provision of any Loan Document shall for any reason
cease to be valid, binding and enforceable in accordance with its
terms, or any Lien granted, or intended by the Loan Documents to be
granted, to Agent shall cease to be a valid and perfected Lien
having the first priority (or a lesser priority if expressly
permitted in the Loan Documents) in any of the Collateral covered
or purported to be covered thereby; or
9.1.13 any
Change in Control of Borrower shall have occurred; or
9.1.14 The occurrence of any event of
default or the equivalent thereof under any other Debt Instrument
(as defined below), in each case following any applicable grace
period, under any term, condition or covenant of any bond, note,
debenture, guaranty, trust agreement, mortgage or similar
instrument to which the Borrower or any Subsidiary is a party or by
which it is bound, or by which any of its properties or assets may
be affected (a “Debt
Instrument”) if the outstanding Indebtedness or
obligations of the Borrower or such Subsidiary under such Debt
Instrument exceeds $1,000,000.00 in aggregate principal amount and
(x) may be declared to be due and payable by reason of such default
or event of default prior to the date on which such indebtedness or
obligations would otherwise become due and payable, with or without
the giving of notice or the passage of time or both, or to
terminate or suspend any commitment to make advances or lend monies
or to accelerate the rate of payment of unpaid Indebtedness or to
terminate the Borrower or such Subsidiary as a servicer or manager
of such Indebtedness or the assets secured thereby, and (y) is due
and payable and unpaid; or
9.1.15 A
circumstance or event has occurred that constitutes a Material
Adverse Effect; or
9.1.16 [Reserved];
9.1.17 There
occurs an event of default (or similar term or phrase) under any
Permitted Excluded Subsidiary Financing; or
9.1.18 There
occurs under any Swap Contract an Early Termination Date (as
defined in such Swap Contract) resulting from (A) any event of
default under such Swap Contract as to which any Borrower or any
Subsidiary is the Defaulting Party (as defined in such Swap
Contract) or (B) any Termination Event (as so defined) under such
Swap Contract as to which any Borrower or any Subsidiary is an
Affected Party (as so defined) and, in either event, the Swap
Termination Value owed by such Borrower or such Subsidiary as a
result thereof is greater than $250,000 (for clarity, the
occurrence of an Early Termination Date under the MUFG Bank Swap
Contracts is an Event of Default hereunder that is a Specified
Event of Default subject to Section 16.2);
or
9.1.19 A
Lease Event of Default; or
9.1.20 The
PPP Loan ceases to be eligible for forgiveness.
.
9.2.1 If
any Default or Event of Default has occurred and is continuing,
then Agent may, with the prior written approval of Requisite
Lenders, upon notice to Borrower from Agent, increase the rate of
interest applicable to the Loans to the Default Rate effective as
of the date of the initial Default. In addition, subject to
Section 16.2, if
any Event of Default shall have occurred and be continuing, Agent
may (and upon prior written approval of Requisite Lenders shall),
without notice, take any one or more of the following actions: (i)
declare all or any portion of the Obligations to be forthwith due
and payable, whereupon such Obligations shall become and be due and
payable; or (ii) exercise any rights and remedies provided to Agent
under the Loan Documents or at law or equity, including all
remedies provided under the UCC; provided, that upon the
occurrence of an Event of Default specified in Sections 9.1.5, 9.1.6 or 9.1.7, the Obligations shall become
immediately due and payable (and any obligation of Lenders to make
further Loans, if not previously terminated, shall immediately be
terminated) without declaration, notice or demand by
Agent.
9.2.2 In
addition to all other rights and remedies of Agent or Lenders under
this Agreement (except to the extent any such Collateral is subject
to a lease (including any Lease) which provides for the quiet use
and enjoyment of such Collateral by the Lessee thereunder),
Borrower expressly agrees that, subject to Section 16.2,
upon the occurrence of any Event of Default, Agent may collect,
receive, assemble, process, appropriate and realize upon the
Collateral, or any part thereof, and may forthwith sell, lease,
assign, give an option or options to purchase or otherwise dispose
of and deliver said Collateral (or contract to do so), or any part
thereof, in one or more parcels at public or private sale or sales,
at any exchange at such prices as it may deem best, for cash or on
credit or for future delivery without assumption of any credit
risk. Agent shall have the right upon any such public sale or sales
and, to the extent permitted by law, upon any such private sale or
sales, to purchase for the benefit of such Agent by credit bid the
whole or any part of said Collateral so sold, free of any right or
equity of redemption, which equity of redemption Borrower hereby
releases. Such sales may be adjourned, or continued from time to
time with or without notice.
9.2.3 Borrower
further agrees, upon the occurrence of an Event of Default (subject
to Section 16.2)
and at Agent’s request (except to the extent any such
Collateral is subject to a Lease which provides for the quiet use
and enjoyment of such Collateral by the Lessee thereunder), to
assemble the Collateral and make it available to Agent at places
which Agent shall reasonably select. Until Agent is able to effect
a sale, lease, or other disposition of the Collateral and except to
the extent any such Collateral is subject to a Lease which provides
for the quiet use and enjoyment of such Collateral by the Lessee
thereunder, Agent shall have the right to complete, assemble, use
or operate the Collateral or any part thereof, to the extent that
Agent deems appropriate, for the purpose of preserving such
Collateral or its value or for any other purpose. Agent shall have
no obligation to Borrower to maintain or preserve the rights of
Borrower as against third parties with respect to any Collateral
while such Collateral is in the possession of Agent. Agent may, if
it so elects, seek the appointment of a receiver or keeper to take
possession of any Collateral and to enforce any of Agent’s
remedies with respect to such appointment without prior notice or
hearing. To the maximum extent permitted by Applicable Law,
Borrower waives all claims, damages, and demands against Agent, its
Affiliates, Agent, and the officers and employees of any of them
arising out of the repossession, retention or sale of any
Collateral except such as are determined in a final judgment by a
court of competent jurisdiction to have arisen out of the gross
negligence or willful misconduct of such Person. Borrower agrees
that ten (10) days’ prior notice by Agent to Borrower of the
time and place of any public sale or of the time after which a
private sale may take place is reasonable notification of such
matters. Borrower shall remain liable for any deficiency if the
proceeds of any sale or disposition of the Collateral are
insufficient to pay all amounts to which Agent is
entitled.
9.2.4 Each
of Agent’s and Lender’s rights and remedies under this
Agreement shall be cumulative and nonexclusive of any other rights
and remedies which Agent and Lenders may have under any Loan
Document or at law or in equity. Recourse to the Collateral shall
not be required. All rights, remedies and powers provided in this
Agreement may be exercised only to the extent that the exercise
thereof does not violate any Applicable Law, and all provisions of
this Agreement are intended to be subject to any Applicable Law
that may be controlling and to be limited, to the extent necessary,
so that they do not render this Agreement invalid, unenforceable,
in whole or in part.
.
Except as otherwise provided for in this Agreement and to the
fullest extent permitted by Applicable Law, Borrower waives: (a)
presentment, demand and protest, and notice of presentment,
dishonor, intent to accelerate, acceleration, protest, default,
nonpayment, maturity, release, compromise, settlement, extension or
renewal of any or all Loan Documents, the Notes or any other notes,
commercial paper, Accounts, Contracts, Documents, Instruments,
Chattel Paper and guaranties at any time held by Lender on which
Borrower may in any way be liable, and hereby ratifies and confirms
whatever Lender may do in this regard; (b) all rights to
notice and a hearing prior to Lender’s taking possession or
control of, or to Lender’s replevin, attachment or levy upon,
any Collateral or any bond or security which might be required by
any court prior to allowing Lender to exercise any of its remedies;
and (c) the benefit of all valuation, appraisal and exemption laws.
Borrower acknowledges that it has been advised by counsel with
respect to this Agreement, the other Loan Documents and the
transactions evidenced hereby and thereby.
. The
Proceeds of any sale, disposition or other realization upon any
Collateral pursuant to the exercise of the remedies hereunder shall
be applied by upon receipt as set forth in Section 2.11.
Each
Loan Document shall be binding on and shall inure to the benefit of
Borrower, Lenders, Agent and their respective successors and
assigns, except as otherwise provided herein or therein. Borrower
shall not assign, transfer, hypothecate or otherwise convey its
rights, benefits, obligations or duties under any Loan Document
without the prior written consent of all of the Lenders, and any
such purported assignment, transfer, hypothecation or other
conveyance by Borrower without the prior express written consent of
the all Lenders shall be void. The terms and provisions of this
Agreement and the other Loan Documents are for the purpose of
defining the relative rights and obligations of Borrower and
Lenders with respect to the transactions contemplated hereby and
thereby, and there shall be no third party beneficiaries of any of
the terms and provisions of any of the Loan Documents. Subject to
Section 12.8.5
of this Agreement, each Lender reserves the right at any time to
create and sell a participation in any portion of the Loans and the
Loan Documents and to sell, transfer or assign any or all of its
rights in the Loans and under the Loan Documents.
. If
and to the extent that Section 12.15
is determined by a court of competent jurisdiction to be
unenforceable or is otherwise not applied by any such court and
that, notwithstanding parties’ intent to have New York law
govern all such matters, California law applies to any controversy
or claim between or among the parties, their agents and employees,
arising under or in connection with (1) this Agreement or any of
the other Loan Documents, (2) any negotiations, correspondence or
communications relating to this Agreement or any of the other Loan
Documents, whether or not incorporated herein or therein, or any
indebtedness evidenced hereby or thereby, (3) the administration or
management of this Agreement or any of the other Loan Documents or
any indebtedness evidenced hereby or thereby, or (4) any alleged
agreements, promises, representations or transactions in connection
herewith or therewith, including any claim or controversy which
arises out of or is based upon an alleged tort (“Dispute”), then such
Dispute shall be subject to and resolved in accordance with the
Alternative Dispute Resolution Agreement.
. No
provision of, or the exercise of any rights under, Section 11.1
shall limit the right of any party to the Alternative Dispute
Resolution Agreement to exercise self-help remedies such as
set-off, to foreclose against any Collateral, or to obtain
provisional or ancillary remedies such as injunctive relief or the
appointment of a receiver from a court having jurisdiction before,
during or after the pendency of any mediation or
arbitration.
. In
the event the Dispute becomes subject to the Alternative Dispute
Resolution Agreement in accordance with Section 11.1 above, then to
the extent any provision of the Alternative Dispute Resolution
Agreement is inconsistent with the other terms of this Agreement,
the terms of the Alternative Dispute Resolution Agreement shall
prevail.
. This
Agreement and the other Loan Documents constitute the complete
agreement among the parties with respect to the subject matter
hereof and thereof, supersede all prior agreements, commitments,
understandings or inducements (oral or written, expressed or
implied).
.
Borrower will promptly pay:
12.2.1 without
regard for whether any Loans are made, all reasonable out-of-pocket
expenses of Agent in connection with the preparation, negotiation,
execution, and delivery of this Agreement, the Notes and the other
Loan Documents, including all due diligence, all post-closing
matters, syndication, and the transactions contemplated hereunder
and thereunder and the making of the Loans, including, recording
and filing fees, and the reasonable attorneys’ fees and
disbursements of counsel for Agent;
12.2.2 all
reasonable out-of-pocket expenses of Agent in connection with the
administration or monitoring of the Loans, the Collateral, this
Agreement and the other Loan Documents in accordance with the
provisions thereof, the restructuring and refinancing of the
transaction herein contemplated, and in connection with the
preparation, negotiation, execution, and delivery of any waiver,
amendment, or consent by Agent relating to this Agreement or the
other Loan Documents, including, auditing costs and expenses with
respect to the Collateral, the reasonable attorneys’ fees and
expenses of counsel and the reasonable fees and expenses of
Agent’s other professionals (including financial
advisor);
12.2.3 all
of Agent’s and Lender’s out-of-pocket costs and
expenses of enforcement of and obtaining performance under this
Agreement or the other Loan Documents, and of collection of the
Obligations, in any arbitration, mediation, legal action or
proceeding (including any case under the Bankruptcy Code or similar
laws), which, in each case, shall include reasonable fees and
expenses of counsel for Agent and each Lender;
12.2.4 all
Charges levied on, or assessed, placed or made against any
Collateral, the Notes or the other Loan Documents or the
Obligations; and
.
12.3.1 Borrower
shall indemnify and hold each Indemnified Person harmless from and
against any Claim which may be instituted or asserted against or
incurred by any such Indemnified Person as the result of credit
having been extended or not extended under this Agreement and the
other Loan Documents or otherwise in connection with or arising out
of the transactions contemplated hereunder or thereunder, including
any Claim for Environmental Liabilities and Costs and legal costs
and expenses of disputes between the parties to this Agreement;
provided, that
Borrower shall not be liable for indemnification of an Indemnified
Person to the extent that (a) such Claim is brought by any
Indemnified Person against Borrower and Borrower is the prevailing
party thereunder or (b) any such Claim is finally determined by a
court of competent jurisdiction to have resulted from such
Indemnified Person’s gross negligence or willful misconduct.
NO INDEMNIFIED PERSON SHALL BE RESPONSIBLE OR LIABLE TO ANY OTHER
PARTY TO ANY LOAN DOCUMENT, ANY SUCCESSOR, ASSIGNEE OR THIRD PARTY
BENEFICIARY OR ANY OTHER PERSON ASSERTING CLAIMS DERIVATIVELY
THROUGH SUCH PARTY, FOR INDIRECT, PUNITIVE, EXEMPLARY OR
CONSEQUENTIAL DAMAGES WHICH MAY BE ALLEGED AS A RESULT OF CREDIT
HAVING BEEN EXTENDED OR NOT EXTENDED UNDER THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT OR AS A RESULT OF ANY OTHER TRANSACTION
CONTEMPLATED HEREUNDER OR THEREUNDER.
12.3.2 In any suit, proceeding or
action brought by Agent or any Lender relating to any item of
Collateral or any amount owing hereunder, or to enforce any
provision of any item of Collateral, Borrower shall save, indemnify
and keep Agent and each Lender harmless from and against all
expense, loss or damage suffered by reason of such action or any
defense, setoff, or counterclaim asserted for any reason by the
other party or parties to such litigation and however arising
unless (a) such suit, proceeding or action is brought by Agent or
any Lender against Borrower and Borrower is the prevailing party
thereunder, or (b) any such suit, proceeding or action is finally
determined by a court of competent jurisdiction to have resulted
from Agent’s or any Lender’s gross negligence or
willful misconduct. All obligations of Borrower with respect to any
item of Collateral shall be and remain enforceable against, and
only against, Borrower and shall not be enforceable against Agent
or any Lender. This Section 12.3.2
shall survive the Termination Date.
.
Neither Agent’s nor any Lender’s failure, at any time
or times, to require strict performance by Borrower of any
provision of any Loan Document, nor Agent’s or any
Lender’s failure to exercise, nor any delay in exercising,
any right, power or privilege under this Agreement, (a) shall
waive, affect or diminish any right of such Agent or any Lender
thereafter to demand strict compliance and performance therewith,
or (b) shall operate as a waiver thereof. Any suspension or waiver
of a Default, Event of Default, or other provision under the Loan
Documents must be in writing signed by an authorized employee of
Agent or any Lender to be effective and shall not suspend, waive or
affect any other Default or Event of Default, whether the same is
prior or subsequent thereto and whether of the same or of a
different type, and shall not be construed as a bar to any right or
remedy which Agent or any Lender would otherwise have had on any
future occasion.
.
Wherever possible, each provision of the Loan Documents shall be
interpreted in such manner as to be effective and valid under
Applicable Law, but if any provision of any Loan Document shall be
prohibited by or invalid under Applicable Law, such provision shall
be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the
remaining provisions of such Loan Document. Except as otherwise
expressly provided herein or in any other Loan Document, all
undertakings, agreements, covenants, warranties and representations
of or binding upon Borrower and all rights of Agent and Lender, all
as contained in the Loan Documents, shall not terminate or expire,
but rather shall survive such termination or cancellation and shall
continue in full force and effect until the Termination Date;
provided, that the
reimbursement and expense provisions of Section 12.2,
the indemnity provisions of Section 12.2.5,
the governing law and venue provisions of Section 12.14
and the Alternative Dispute Resolution Agreement referred in
Sections 11 and 12.15
shall all survive the Termination Date. In the event of a dispute
between any of the parties hereto over the meaning of this
Agreement, all parties shall be deemed to have been the drafter
hereof, and any Applicable Law that states that contracts are
construed against the drafter shall not apply.
.
Except as otherwise provided in any Loan Document by specific
reference to the applicable provisions of this Agreement, if any
provision contained in this Agreement is in conflict with, or
inconsistent with, any provision in any other Loan Document, the
provision contained in this Agreement shall govern and
control.
.
12.7.1 All notices and other
communications under this Agreement and the other Loan Documents
shall be in writing and shall be deemed to have been given three
(3) days after deposit in the mail, first class mail, postage
prepaid, or one (1) day after being entrusted to a reputable
commercial overnight delivery service, or when sent out by
facsimile or email transmission addressed to the party to which
such notice is directed at its address determined as provided in
this Section 12.7.1.
All notices and other communications under this Agreement shall be
given to the parties hereto at the following
addresses:
(a) If to
Borrower:
Attn:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇-▇▇▇▇
Telephone No.:
(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.:
(650) 696-XXXX
Email:
▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
(b) If to
Agent:
MUFG
Union Bank, N.A.
Special
Assets Division
Attn:
▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Email:
▇▇▇▇@▇▇.▇▇▇▇.▇▇
▇▇▇▇@▇▇.▇▇▇▇.▇▇
and:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Hampton LLP
Four
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telephone No.:
(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.:
(415) 434-XXXX
Email:
▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
12.7.2 Any party to this Agreement may
change the address to which notices shall be directed under this
Section 12.7.2
by giving two (2) Business Days’ written notice of such
change to the other parties.
.
12.8.1 Subject
to Section 10, this
Agreement and the other Loan Documents to which Borrower is a party
will be binding upon and inure to the benefit of Borrower, Agent,
each of Lenders, and their respective successors and assigns. Each
Lender represents that it is not acquiring its Note with a view to
the distribution thereof within the meaning of the Securities Act
of 1933, as amended (subject to any requirement that disposition of
such Note must be within the control of such Lender). Any Lender
may at any time pledge its Note or any other instrument evidencing
its rights as a lender under this Agreement to a Federal Reserve
Bank, but no such pledge shall release that lender from its
obligations hereunder or grant to such Federal Reserve Bank the
rights of a Lender hereunder absent foreclosure of such
pledge.
12.8.2 From time to time following the
Closing Date, each Lender may assign to one or more Eligible
Assignees all or any portion of its Pro Rata Share of the Term Loan
Commitment; provided that (i) such Eligible
Assignee, if not then a Lender or an Affiliate of the assigning
Lender, shall be approved by Agent, which approval shall not be
unreasonably withheld, conditioned or delayed; (ii) such assignment
shall be evidenced by a Commitment Assignment and Acceptance, a
copy of which shall be furnished to Agent as provided below; (iii)
except in the case
of an assignment (a) to an Affiliate of the assigning Lender or to
another Lender or (b) of the entire remaining Term Loan Commitment
of the assigning Lender, the assignment shall not assign a Pro Rata
Share of the Term Loan Commitment that is equivalent to less than
$5,000,000.00; (iv) the effective date of any such assignment shall
be as specified in the Commitment Assignment and Acceptance, but
not earlier than the date which is five (5) Business Days after the
date Agent has received the Commitment Assignment and Acceptance;
and (v) such Eligible Assignee shall execute an Alternative Dispute
Resolution Agreement, in form and substance satisfactory to Agent.
Upon the effective date of such Commitment Assignment and
Acceptance, the Eligible Assignee named therein shall be a Lender
for all purposes of this Agreement, with the Pro Rata Share of the
Term Loan Commitment therein set forth and, to the extent of such
Pro Rata Share, the assigning Lender shall be released from its
further obligations under this Agreement. Borrower agrees that it
shall execute and deliver (against delivery by the assigning Lender
to Borrower of its Note(s)) to such assignee Lender, Note(s)
evidencing that assignee Lender’s Pro Rata Share of the Term
Loan Commitment, and to the assigning Lender, Note(s) evidencing
the Pro Rata Share retained by the assigning Lender.
12.8.3 By
executing and delivering a Commitment Assignment and Acceptance,
the Eligible Assignee thereunder acknowledges and agrees that: (i)
other than the representation and warranty that it is the legal and
beneficial owner of the Pro Rata Share of the Term Loan Commitment
being assigned thereby free and clear of any adverse claim, the
assigning Lender has made no representation or warranty and assumes
no responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement or the
execution, legality, validity, enforceability, genuineness or
sufficiency of this Agreement or any other Loan Document; (ii) the
assigning Lender has made no representation or warranty and assumes
no responsibility with respect to the financial condition of
Borrower or the performance by Borrower of the Obligations; (iii)
it has received a copy of this Agreement, together with copies of
the most recent Financial Statements delivered pursuant to
Section 8 and
such other documents and information as it has deemed appropriate
to make its own credit analysis and decision to enter into such
Commitment Assignment and Acceptance; (iv) it will, independently
and without reliance upon Agent or any 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 this Agreement; (v) it appoints and authorizes Agent
to take such action and to exercise such powers under this
Agreement as are delegated to Agent by this Agreement; and (vi) it
will perform in accordance with their terms all of the obligations
which by the terms of this Agreement are required to be performed
by it as a Lender.
12.8.4 Agent shall maintain at
Agent’s Office a copy of each Commitment Assignment and
Acceptance delivered to it and a register (the “Register”) of the names
and address of each of the Lenders and the Pro Rata Share of the
Commitments held by each Lender, giving effect to each Commitment
Assignment and Acceptance. The Register shall be available during
normal business hours for inspection by Borrower or any Lender upon
reasonable prior notice to Agent. After receipt of a completed
Commitment Assignment and Acceptance executed by any Lender and an
Eligible Assignee, and receipt of a non-refundable assignment fee
of Three Thousand Five Hundred Dollars ($3,500.00) from such Lender
or Eligible Assignee, Agent shall, promptly following the effective
date thereof, provide to Borrower and the Lenders a revised
Schedule A
giving effect thereto. Borrower, Agent and the Lenders shall deem
and treat the Persons listed as Lenders in the Register as the
holders and owners of the Pro Rata Share of the Term Loan
Commitment listed therein for all purposes hereof, and no
assignment or transfer of any such Pro Rata Share of the Term Loan
Commitment shall be effective, in each case unless and until a
Commitment Assignment and Acceptance effecting the assignment or
transfer thereof shall have been accepted by Agent and recorded in
the Register as provided above. Prior to such recordation, all
amounts owed with respect to the applicable Pro Rata Share of the
Term Loan Commitment shall be owed to the Lender listed in the
Register as the owner thereof, and any request, authority or
consent of any Person who, at the time of making such request or
giving such authority or consent, is listed in the Register as a
Lender shall be conclusive and binding on any subsequent holder,
assignee or transferee of the corresponding Pro Rata Share of the
Term Loan Commitment.
12.8.5 Each Lender may from time to time
grant participations to one or more banks or other financial
institutions (a “Participant”) in a
portion of its Pro Rata Share of the Term Loan Commitment;
provided,
however, 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; (iii)
the participating banks or other financial institutions shall not
be a Lender hereunder for any purpose except, if the participation
agreement so provides, (A) for the purposes of Section 12.2.5
but only to the extent that the cost of such benefits to Borrower
does not exceed the cost which Borrower would have incurred in
respect of such Lender absent the participation and (B) for the
purposes of Sections 2.17,
14.1 and
14.2 (subject to the requirements
and limitations therein, including the requirements under
Section 2.17(e) (it being understood that
the documentation required under Section 2.17(e)
shall be delivered to the Lender who sells the participation)) to
the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to Section 12.8.2;
provided,
that, such
participating bank (1) agrees to be subject to the provisions of
Section 12.10 as if it were an assignee under
Section 12.8.2,
and (2) shall not be entitled to receive any greater payment under
Sections 2.17,
14.1, and 14.2,
with respect to any participation, than the Lender from whom it
acquired the applicable participation would have been entitled to
receive; (iv) Borrower, Agent 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;
(v) the participation interest shall be expressed as a percentage
of the granting Lender’s Pro Rata Share of the Term Loan
Commitment as it then exists or in the granting Lender’s Pro
Rata Share of the Term Loan Commitment, so long as the amount of
the participation interest is not affected thereby; and (vi) the
consent of the holder of such participation interest shall not be
required for amendments or waivers of provisions of the Loan
Documents other
than those which
(A) extend the Maturity Date or any other date upon which any
payment of money is due to the Lenders, (B) reduce the rate of
interest on the Notes, any fee or any other monetary amount payable
to the Lenders (in each case other than as specifically provided
herein), (C) reduce the amount of any installment of principal due
under the Notes, or (D) release any material Collateral from the
Lien of the Collateral Documents (other than as specifically
provided herein). Each Lender that sells a participation shall,
acting solely for this purpose as a non-fiduciary agent of
Borrower, maintain a register on which it enters the name and
address of each Participant and the principal amounts (and stated
interest) of each Participant's interest in the Loans or other
obligations under any Loan Document (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 Term
Loan Commitments, Loans, or its other obligations under any Loan
Document) to any Person except to the extent that such disclosure
is necessary to establish that such Term Loan Commitment, Loan, or
other obligation is in registered form under
Section 5f.103-1(c) of the United States Treasury
Regulations.
. If an
Event of Default has occurred and is continuing (subject to
Section 16.2),
Agent or any Lender (but in each case only with the consent of the
Requisite Lenders) may exercise its rights under Article 9 of the
Uniform Commercial Code and other Applicable Law and, to the extent
permitted by Applicable Law, apply any funds in any deposit account
maintained with it by Borrower and/or any Property of Borrower in
its possession against the Obligations. Each Lender agrees to
notify the Borrower and 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.
. Each
Lender severally agrees that if it, through the exercise of any
right of setoff, banker’s lien or counterclaim against
Borrower, or otherwise, receives payment of the Obligations held by
it that is ratably more than any other Lender, through any means,
receives in payment of the Obligations held by that Lender, then,
subject to Applicable Law: (a) the Lender exercising the right of
setoff, banker’s lien or counterclaim or otherwise receiving
such payment shall purchase, and shall be deemed to have
simultaneously purchased, from each of the other Lenders a
participation in the Obligations held by the other Lenders and
shall pay to the other Lenders a purchase price in an amount so
that the share of the Obligations held by each Lender after the
exercise of the right of setoff, banker’s lien or
counterclaim or receipt of payment shall be in the same proportion
that existed prior to the exercise of the right of setoff,
banker’s lien or counterclaim or receipt of payment; and (b)
such other adjustments and purchases of participations shall be
made from time to time as shall be equitable to ensure that all of
the Lenders share any payment obtained in respect of the
Obligations ratably in accordance with each Lender’s share of
the Obligations immediately prior to, and without taking into
account, the payment; provided that, if all or any
portion of a disproportionate payment obtained as a result of the
exercise of the right of setoff, banker’s lien, counterclaim
or otherwise is thereafter recovered from the purchasing Lender by
Borrower or any Person claiming through or succeeding to the rights
of Borrower, the purchase of a participation shall be rescinded and
the purchase price thereof shall be restored to the extent of the
recovery, but without interest. Each Lender that purchases a
participation in the Obligations pursuant to this Section 12.10 shall from and after the purchase
have the right to give all notices, requests, demands, directions
and other communications under this Agreement with respect to the
portion of the Obligations purchased to the same extent as though
the purchasing Lender were the original owner of the Obligations
purchased. Borrower expressly consents to the foregoing
arrangements and agrees that any Lender holding a participation in
an Obligation so purchased pursuant to this Section 12.10 may exercise any and all rights of
setoff, banker’s lien or counterclaim with respect to the
participation as fully as if the Lender were the original owner of
the Obligation purchased.
. The
Section titles and Table of Contents contained in this Agreement
and any other Loan Document are and shall be without substantive
meaning or content of any kind whatsoever and are not a part of the
agreement between the parties hereto.
. This
Agreement and each other Loan Document may be executed in any
number of identical counterparts, which shall constitute an
original and collectively and separately constitute a single
instrument or agreement. The facsimile signature, e-signature or
email (PDF) signature of any party executing such Loan Document
shall be binding upon such party and may be relied upon by all
other parties thereto. The parties hereto agree that this Agreement
and any other Loan Document, any amendment or supplement thereto
may be accepted, executed or agreed to through the use of an
electronic signature in accordance with the Electronic Signatures
in Global and National ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code,
Sections 7001 et seq., the Uniform Electronic Transaction Act and
any applicable state law. Any party delivering an executed
counterpart by electronic means shall thereafter also deliver to
Agent a manually executed counterpart of such Loan Document, but
failure to do so shall in no way affect the validity,
enforceability, or binding effect of such Loan
Document.
. Time
is of the essence for payment and performance of the
Obligations.
.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN ANY OF THE LOAN
DOCUMENTS, IN ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE, THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS AND THE OBLIGATIONS ARISING HEREUNDER AND THEREUNDER
SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS
MADE AND PERFORMED IN SUCH STATE, WITHOUT REGARD TO THE PRINCIPLES
THEREOF REGARDING CONFLICTS OF LAWS (OTHER THAN SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW), AND ANY APPLICABLE LAWS OF
THE UNITED STATES OF AMERICA. BORROWER HEREBY CONSENTS AND AGREES,
PURSUANT TO SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW,
THAT THE STATE OR FEDERAL COURTS LOCATED IN THE COUNTY OF NEW YORK,
NEW YORK SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE
ANY CLAIMS OR DISPUTES BETWEEN BORROWER AND ANY CREDIT FACILITY
LENDER PERTAINING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR
TO ANY MATTER ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY OF
THE OTHER LOAN DOCUMENTS; PROVIDED, THAT CREDIT FACILITY
LENDERS AND BORROWER ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS
MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF NEW YORK, NEW
YORK; AND FURTHER
PROVIDED, THAT NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR
OPERATE TO PRECLUDE AGENT OR ANY CREDIT FACILITY LENDER FROM
BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER
JURISDICTION TO COLLECT THE OBLIGATIONS, TO REALIZE ON THE
COLLATERAL OR ANY OTHER SECURITY FOR THE OBLIGATIONS, OR TO ENFORCE
A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF SUCH AGENT OR CREDIT
FACILITY LENDER. BORROWER EXPRESSLY SUBMITS AND CONSENTS TO SUCH
JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND
BORROWER HEREBY WAIVES ANY OBJECTION WHICH IT MAY HAVE BASED UPON
LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY
CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS
DEEMED APPROPRIATE BY SUCH COURT. BORROWER HEREBY WAIVES PERSONAL
SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY
SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS,
COMPLAINTS AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED
MAIL ADDRESSED TO BORROWER AT THE ADDRESS SET FORTH IN SECTION 12.7.1
AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE
BORROWER’S ACTUAL RECEIPT THEREOF. TO THE EXTENT THE CHOICE
OF LAW AND VENUE PROVISIONS IN ANY LOAN DOCUMENT ENTERED INTO AS OF
THE CLOSING DATE IS INCONSISTENT WITH THIS PROVISION, SUCH LOAN
DOCUMENT IS HEREBY MODIFIED TO THE EXTENT APPLICABLE BY
INCORPORATING THIS PROVISION THEREIN.
. TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES HERETO
HEREBY WAIVE TRIAL BY JURY FOR ANY ACTION, SUIT, JUDICIAL
REFERENCE, OR OTHER PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE,
WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF,
CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THIS AGREEMENT, THE
OTHER LOAN DOCUMENTS AND/OR THE RELATIONSHIP ESTABLISHED AMONG THE
PARTIES HERETO IN CONNECTION WITH THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
. No
amendment, modification, supplement, extension, termination or
waiver of any provision of this Agreement or any other Loan
Document, no approval or consent thereunder, and no consent to any
departure by Borrower or any other party therefrom, may in any
event be effective unless in writing signed by Agent with the
written approval of the Requisite Lenders (and, in the case of any
amendment, modification or supplement of or to any Loan Document to
which Borrower is a party, signed by Borrower, and, in the case of
any amendment, modification or supplement to Section 13,
signed by Agent, respectively), and then only in the specific
instance and for the specific purpose given; and no amendment,
modification, supplement, termination, waiver or consent may be
effective:
12.16.1 to
amend or modify the principal of, or the amount of principal (other
than in accordance with Section 2.7 or
on account of capitalizing the PIK Interest (which does not require
Lender consent)), principal prepayments or the rate of interest
payable on, any Note, or the amount of the Term Loan Commitment or
the Pro Rata Share of any Lender or the amount of any commitment
fee payable to any Lender, or any other fee or amount payable to
any Lender under the Loan Documents or to waive an Event of Default
consisting of the failure of Borrower to pay when due principal,
interest or any fee, without the approval in writing of all the
Lenders affected thereby (provided, however, that (i) only the
consent of Requisite Lenders shall be necessary to (x) impose the
Default Rate or to waive any obligation of Borrower to pay interest
at such rate, (y) impose or waive the Late Fee in connection with a
Strategic Alternative Event of Default and (z) extend the
Forbearance Period);
12.16.2 to
postpone any date fixed for any payment of principal of, prepayment
of principal of or any installment of interest on, any Note or any
installment of any fee, or to extend the term of the Term Loan
Commitment, without the approval in writing of all the Lenders
affected thereby;
12.16.3 to
amend the provisions of the definition of “Maturity Date” and
“Requisite
Lenders”, without the approval in writing of all the
Lenders;
12.16.4 to
release any material Collateral (other than with respect to
Aircraft 238 in accordance with Section 3.8)
from the Lien of the Collateral Documents without the written
approval of the Requisite Lenders in accordance with Section 3.7;
12.16.5 to
release a Guarantor under any Guaranty (except with respect to a
Subsidiary Guarantor that is subject to a merger or consolidation
not prohibited under Section 7.6),
without the written approval of all Lenders;
12.16.6 change
Section 2.11.2
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;
12.16.7 to
amend or waive this Section 12.16 or any part thereof, without the
approval of all the Lenders; or
12.16.8 to
amend any provision of this Agreement that expressly requires the
consent or approval of all or a specified portion of the Lenders,
without the consent of all the Lenders.
Notwithstanding
anything herein to the contrary, no Defaulting Lender shall have
any right to approve or disapprove any amendment, waiver or consent
hereunder (and any amendment, waiver or consent that by its terms
requires the consent of all the Lenders or each affected Lender may
be effected with the consent of the applicable Lenders other than
Defaulting Lenders, except that (x) the Term Loan Commitment of any
Defaulting Lender may not be increased or extended, or the maturity
of any of its Loan may not be extended, the rate of interest on any
of its Loans may not be reduced and the principal amount of any of
its Loans may not be forgiven, in each case without the consent of
such Defaulting Lender and (y) any amendment, waiver or consent
requiring the consent of all the Lenders or each affected Lender
that by its terms affects any Defaulting Lender more adversely than
the other affected Lenders shall require the consent of such
Defaulting Lender.
Any
amendment, modification, supplement, termination, waiver or consent
pursuant to this Section 12.16
shall apply equally to, and shall be binding upon, all the Lenders
and Agent. Notwithstanding the foregoing, the Agent and Borrower
may amend any Loan Document to correct any errors, mistakes,
omissions, defects or inconsistencies, or to affect administrative
changes that are not adverse to any Lender, and such amendment
shall become effective without further consent of any other party
to such Loan Document other than the Agent and
Borrower.
. Each
Foreign Lender shall deliver to Borrower (with a copy to Agent), on
or before the Closing Date (or on or before accepting an assignment
or receiving a participation interest herein pursuant to
Section 12.8.2,
if applicable) two duly completed copies, signed by an authorized
officer, of either Form 1001 (relating to such Lender and entitling
it to a complete exemption from withholding on all payments to be
made to such Lender by Borrower pursuant to this Agreement) or Form
W-8BEN (relating to all payments to be made to such Foreign Lender
by the Borrower pursuant to this Agreement) of the United States
Internal Revenue Service or such other evidence (including, if
reasonably necessary, Form W-9) satisfactory to Borrower and Agent
that no withholding under the federal income Tax laws is required
with respect to such Foreign Lender. Thereafter and from time to
time, each such Foreign Lender shall (a) promptly submit to
Borrower (with a copy to Agent), such additional duly completed and
signed copies of one of such forms (or such successor forms as
shall be adopted from time to time by the relevant United States
taxing authorities) as may then be available under then current
United States laws and regulations to avoid, or such evidence as is
satisfactory to Borrower and Agent of any available exemption from,
United States withholding Taxes in respect of all payments to be
made to such Foreign Lender by Borrower pursuant to this Agreement
and (b) take such steps as shall not be materially disadvantageous
to it, in the reasonable judgment of such Foreign Lender, and as
may be reasonably necessary (including the re designation of its
LIBOR lending office, if any) to avoid any requirement of
Applicable Law that Borrower make any deduction or withholding for
Taxes from amounts payable to such Foreign Lender. In the event
that Borrower or Agent become aware that a participation has been
granted pursuant to Section 12.8.5
to a financial institution that is a Foreign Lender, then, upon
request made by Borrower or Agent to the Lender which granted such
participation, such Lender shall cause such participant financial
institution to deliver the same documents and information to
Borrower and Agent as would be required under this Section if such
financial institution were a Lender.
.
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
Affected 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 the applicable 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 the applicable Resolution
Authority to any such liabilities arising hereunder which may be
payable to it by any party hereto that is an EEA Financial
Institution; and
(b) the effects of any
Bail-in Action on any such liability, including, if
applicable:
(i) a reduction in full
or in part or cancellation of any such liability;
(ii) a
conversion of all, or a portion of, such liability into shares or
other instruments of ownership in such Affected 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 the applicable
Resolution Authority.
. In
connection with all aspects of the transactions contemplated hereby
(including in connections with any amendment, or waiver or other
modification hereof or of any other Loan Document), the Borrower
acknowledges and agrees, and acknowledges its understanding, that:
(i) the services regarding this Agreement provided by the Lenders
are arm's length commercial transactions between the Borrower, on
the one hand, and the Lenders, on the other hand, and (ii) each
Lender is and has been acting solely as a principal and, except
expressly agreed in writing by the relevant parties, has not been,
is not, and will not be acting as a fiduciary for the
Borrower.
(a) Each of Borrower,
the Agent, the Lenders, and each of their Affiliates is authorized
(but not required) to transmit, post or otherwise make or
communicate, in its sole discretion, Electronic Transmissions in
connection with any Loan Document and the transactions contemplated
therein. The Borrower hereby acknowledges and agrees that the use
of Electronic Transmissions is not necessarily secure and that
there are risks associated with such use, including risks of
interception, disclosure and abuse and each indicates it assumes
and accepts such risks by hereby authorizing the transmission of
Electronic Transmissions.
(b) All uses of an
E-System shall be governed by and subject to and this Section
12.20, separate terms and conditions posted or referenced in such
E-System and related contractual obligations executed by the
Borrower, the Agent and the Lenders in connection with the use of
such E-System.
(c) All E-Systems and
Electronic Transmissions shall be provided “as is” and
“as available.” None of the Agent or any of its
Affiliates, nor the Borrower or any of its respective Affiliates
warrants the accuracy, adequacy or completeness of any E-Systems or
Electronic Transmission, and each disclaims all liability for
errors or omissions therein. No warranty of any kind is made by the
Agent or any of its Affiliates, or the Borrower or any of its
respective Affiliates in connection with any E-Systems or
Electronic Transmission, including any warranty of merchantability,
fitness for a particular purpose, non-infringement of third-party
rights or freedom from viruses or other code defects. The Agent,
the Borrower and its Subsidiaries, and the Lenders agree that the
Agent has no responsibility for maintaining or providing any
equipment, software, services or any testing required in connection
with any Electronic Transmission or otherwise required for any
E-System. The Agent and the Lenders agree that the Borrower has no
responsibility for maintaining or providing any equipment,
software, services or any testing required in connection with any
Electronic Transmission or otherwise required for any
E-System.
.
Subject to Section 12.8.2,
each of the Lenders and Swap Contract Counterparty(ies) with
respect to Lender Hedging Obligations hereby irrevocably appoints
and authorizes Agent to take such action as agent on its behalf and
to exercise such powers under the Loan Documents as are delegated
to Agent by the terms thereof or are reasonably incidental, as
determined by Agent, thereto. This appointment and authorization is
intended solely for the purpose of facilitating the servicing of
the Loans and does not constitute appointment of Agent as trustee
for any Lender or as representative of any Lender for any other
purpose. Notwithstanding any provision to the contrary contained
elsewhere herein or in any other Loan Document, the Agent shall not
have any duties or responsibilities, except those expressly set
forth herein, nor shall the Agent have or be deemed to have any
fiduciary relationship with any Lender or participant or any Swap
Contract Counterparty with respect to Lender Hedging Obligations,
and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any
other Loan Document or otherwise exist against the Agent. Without
limiting the generality of the foregoing sentence, the use of the
term "Agent" or “Administrative Agent” herein and in
the other Loan Documents with reference to the 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 merely as a matter of market custom, and
is intended to create or reflect only an administrative
relationship between independent contracting parties. The Agent may
execute any of its duties under this Agreement or any other Loan
Document by or through its agents, employees or attorneys-in-fact
and shall be entitled to advice of counsel and other consultants or
experts concerning all matters pertaining to such duties. The Agent
shall not be responsible for the negligence or misconduct of any
agent or attorney-in-fact that it selects in the absence of gross
negligence or willful misconduct.
. Each
Lender agrees that it has, independently and without reliance upon
Agent, any other Lender or the directors, officers, Agent,
employees or attorneys of the foregoing parties, and instead in
reliance upon information supplied to it by or on behalf of
Borrower and upon such other information as it has deemed
appropriate, made its own independent credit analysis and decision
to enter into this Agreement. Each Lender also agrees that it
shall, independently and without reliance upon Agent, any other
Lender or the directors, officers, Agent, employees or attorneys of
the foregoing parties, continue to make its own independent credit
analyses and decisions in acting or not acting under the Loan
Documents.
. MUFG
Union Bank, N.A. (and each successor Agent) has the same rights and
powers under the Loan Documents as any other Lender and may
exercise the same as though it were not Agent, and the term
“Lender” or “Lenders” includes MUFG Union
Bank, N.A. in its individual capacity. MUFG Union Bank, N.A. (and
each successor Agent) and its Affiliates may accept deposits from,
lend money to and generally engage in any kind of banking, trust or
other business with Borrower or any Affiliate of Borrower, as if it
were not Agent and without any duty to account therefor to Lenders.
MUFG Union Bank, N.A. (and each successor Agent) need not account
to any other Lender for any monies received by it in its capacity
as a Lender hereunder. Agent shall not be deemed to hold a
fiduciary relationship with any Lender and no implied covenants,
functions, responsibilities, duties, obligations or liabilities
shall be read into this Agreement or otherwise exist against
Agent.
.
Agent, on behalf of Lenders (and Swap Contract Counterparties with
respect to Lender Hedging Obligations), shall hold in accordance
with the Loan Documents all items of any Collateral or interests
therein to be received or held by Agent. Subject to Agent’s
and Lenders’ rights to reimbursement for their costs and
expenses hereunder (including reasonable attorneys’ fees and
disbursements and other professional services and the reasonably
allocated costs of attorneys employed by Agent or a Lender) and
subject to the application of payments in accordance with
Section 9.4,
each Lender (and Swap Contract Counterparty with respect to Lender
Hedging Obligations) shall have an interest in such collateral or
interests therein in the same proportion that the aggregate
obligations owed such Lender (and such Swap Contract Counterparty
with respect to Lender Hedging Obligations), under the Loan
Documents and/or Lender Hedging Obligations, as applicable, bears
to the aggregate obligations owed under the Loan Documents and all
Lender Hedging Obligations, without priority or preference among
Lenders (and Swap Contract Counterparties with respect to Lender
Hedging Obligations).
.
13.5.1 Agent
shall be deemed not to have knowledge of any Default or Event of
Default unless and until such notice describing the same is given
to Agent in writing by Borrower or a Lender.
13.5.2 Agent
has only those obligations under the Loan Documents as are
expressly set forth herein and therein, and its duties hereunder
and thereunder shall be administrative in nature.
13.5.3 Agent 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 Agent is required to
exercise, as directed in written instructions by the Requisite
Lenders (or all the Lenders, to the extent required by Section 12.16);
and those instructions shall be binding upon Agent and all Lenders,
provided that Agent
shall not be required to act or not act if to do so would be
contrary to any Loan Document or to 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 affect a
forfeiture, modification or termination of property of a Defaulting
Lender in violation of any Debtor Relief Law) or would result, in
the reasonable judgment of Agent, in substantial risk of liability
to Agent.
13.5.4 If
Agent has received a notice specified in Section 13.5.1, Agent shall promptly give notice
thereof to Lenders and shall, subject to Section 13.5.3,
act or not act upon the instructions of the Requisite Lenders (or
of all the Lenders, to the extent required by Section 12.16),
except that if the
Requisite Lenders fail, for five (5) Business Days after the
receipt of notice from Agent, to instruct Agent, then Agent, in its
sole discretion, may act or not act as it deems advisable for the
protection of the interests of Lenders.
13.5.5 Agent
shall have no liability to any Lender for acting, or not acting, as
instructed by the Requisite Lenders, notwithstanding any other
provision hereof.
.
Neither Agent nor any of its directors, officers, Agent, employees
or attorneys shall be liable for any action taken or not taken by
them under or in connection with the Loan Documents, except for
their own gross negligence or willful misconduct. Without
limitation on the foregoing, Agent and its directors, officers,
Agent, employees and attorneys:
13.6.1 May
treat the payee of any Note as the holder thereof until Agent
receives notice of the assignment or transfer thereof, signed by
the payee, and may treat each Lender as the owner of that
Lender’s interest in the Obligations for all purposes of this
Agreement until Agent receives notice of the assignment or transfer
thereof, signed by that Lender;
13.6.2 May
consult with legal counsel (including in-house legal
counsel), accountants (including in-house accountants)
and other professionals or experts selected by it, or with legal
counsel, accountants or other professionals or experts for Borrower
or Lenders, and shall not be liable for any action taken or not
taken by it in good faith in accordance with any advice of such
legal counsel, accountants or other professionals or experts
selected by it with reasonable care;
13.6.3 Shall
not be responsible to any Lender for any statement, warranty or
representation made in any of the Loan Documents or in any notice,
certificate, report, request or other statement (written or oral)
given or made in connection with any of the Loan Documents except
for those expressly made by it;
13.6.4 Except
to the extent expressly set forth in the Loan Documents, shall have
no duty to ask or inquire as to the performance or observance by
Borrower of any of the terms, conditions or covenants of any of the
Loan Documents or to inspect any collateral or any Property, books
or records of Borrower;
13.6.5 Will
not be responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, effectiveness, sufficiency
or value of any Loan Document, any other instrument or writing
furnished pursuant thereto or in connection therewith, or any
collateral;
13.6.6 Will
not incur any liability by acting or not acting in reliance upon
any Loan Document, notice, consent, certificate, statement, request
or other instrument or writing reasonably believed by it to be
genuine and signed or sent by the proper party or parties;
and
13.6.7 Will
not incur any liability for any arithmetical error in computing any
amount paid or payable by the Borrower or paid or payable to or
received or receivable from any Lender under any Loan Document,
including, without limitation, principal, interest, commitment
fees, Loans and other amounts; provided that, promptly upon discovery
of such an error in computation, the Agent, the Lenders and (to the
extent applicable) and the Borrower shall make such adjustments as
are necessary to correct such error and to restore the parties to
the position that they would have occupied had the error not
occurred.
. Each
Lender shall, ratably in accordance with its Pro Rata Share of the
Term Loan Commitment (if the Term Loan Commitment is then in
effect) or in accordance with its proportion of the aggregate
Indebtedness then evidenced by the Notes (if the Term Loan
Commitment has then been terminated), indemnify and hold Agent and
its directors, officers, Agent, employees and attorneys harmless
against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever (including
reasonable attorneys’ fees and disbursements and allocated
costs of attorneys employed by Agent) that may be imposed on,
incurred by or asserted against it or them in any way relating to
or arising out of the Loan Documents (other than losses incurred by
reason of the failure of Borrower to pay the Indebtedness
represented by the Notes) or any action taken or not taken by it as
Agent thereunder, except such as result from its own gross
negligence or willful misconduct. Without limitation on the
foregoing, each Lender shall reimburse Agent upon demand for that
Lender’s Pro Rata Share of any out of pocket cost or expense
incurred by Agent in connection with the negotiation, preparation,
execution, delivery, amendment, waiver, restructuring,
reorganization (including a bankruptcy reorganization), enforcement
or attempted enforcement of the Loan Documents, to the extent that
Borrower or any other party is required by Section 12.2 to
pay that cost or expense but fails to do so upon demand. Nothing in
this Section 13.7
shall entitle Agent or any indemnitee referred to above to recover
any amount from Lenders if and to the extent that such amount has
theretofore been recovered from Borrower. To the extent that Agent
or any indemnitee referred to above is later reimbursed such amount
by Borrower, it shall return the amounts paid to it by Lenders in
respect of such amount.
. Agent
may, and at the request of the Requisite Lenders shall, resign as
Agent upon reasonable notice to Lenders and Borrower effective upon
acceptance of appointment by a successor Agent. If Agent shall
resign as Agent under this Agreement, the Requisite Lenders shall
appoint from among Lenders a successor Agent for Lenders, which
successor Agent shall be approved by Borrower (and such approval
shall not be unreasonably withheld or delayed); provided that in no event shall any
successor Agent be a Defaulting Lender. If no successor Agent is
appointed prior to the effective date of the resignation of Agent,
Agent may appoint, after consulting with Lenders and Borrower, a
successor Agent from among Lenders. Upon the acceptance of its
appointment as successor Agent hereunder, such successor Agent
shall succeed to all the rights, powers and duties of the retiring
Agent and the term “Agent” shall mean such successor
Agent and the retiring Agent’s appointment, powers and duties
as Agent shall be terminated. After any retiring Agent’s
resignation hereunder as Agent, the provisions of this Section 13, and
Section 12.2.5,
shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Agent under this Agreement.
Notwithstanding the foregoing, if (a) Agent has not been paid those
fees referenced in Section 2.4.1 or has not been reimbursed for any
expense reimbursable to it under Sections 12.2 or
12.2.5, in either case for a period
of at least one (1) year and (b) no successor Agent has accepted
appointment as Agent by the date which is thirty (30) days
following a retiring Agent’s notice of resignation, the
retiring Agent’s resignation shall nevertheless thereupon
become effective and Lenders shall perform all of the duties of
Agent hereunder until such time, if any, as the Requisite Lenders
appoint a successor Agent as provided for above.
. (a)
Each Lender hereby irrevocably authorizes and directs the Agent to
enter into the Loan Documents for the benefit of such Lender. The
Agent is hereby authorized on behalf of all of Lenders, without the
necessity of any notice to or further consent from any Lender from
time to time prior to, an Event of Default, to take any action with
respect to any Collateral or Loan Documents which may be necessary
to perfect and maintain perfected the Liens upon the Collateral
granted pursuant to the Loan Documents. Each Lender (and Swap
Contract Counterparty with respect to Lender Hedging Obligations)
hereby irrevocably authorizes the Agent, at its option and in its
discretion:
(i) to release any Lien
on any property granted to or held by the Agent under any Loan
Document (i) upon termination of the Term Loan Commitment and
payment in full of all Obligations (other than contingent
indemnification obligations), (ii) that is sold or to be sold as
part of or in connection with any sale permitted or provided for
hereunder (including under Section 3.7) or
under any other Loan Document, (iii) subject to Section 12.16,
if approved, authorized or ratified in writing by the Requisite
Lenders, (iv) in connection with any foreclosure sale or other
disposition of Collateral after the occurrence of an Event of
Default or (v) to the extent such property constitutes Excluded
Asset; and
(ii) to
subordinate any Lien on any property granted to or held by the
Agent under any Loan Document to the holder of any Lien on such
property that is permitted by this Agreement or any other Loan
Document.
Upon
request by the Agent at any time, each Lender will confirm in
writing the Agent's authority to release or subordinate its
interest in particular types or items of Collateral pursuant to
this Section 13.9.
(a) Subject to (ii)
above, the Agent shall (and is hereby irrevocably authorized by
each Lender), to execute such documents as may be necessary to
evidence the release or subordination of the Liens granted to the
Agent for the benefit of the Agent and Lenders herein or pursuant
hereto upon the applicable Collateral; provided that (i) the Agent shall not be
required to execute any such document on terms which, in the
Agent's opinion, would expose the Agent to or create any liability
or entail any consequence other than the release or subordination
of such Liens without recourse or warranty and (ii) such release or
subordination shall not in any manner discharge, affect or impair
the Obligations or any Liens upon (or obligations of the Borrower
in respect of) all interests retained by the Borrower, including
the proceeds of the sale, all of which shall continue to constitute
part of the Collateral. In the event of any sale or transfer of
Collateral, or any foreclosure with respect to any of the
Collateral, the Agent shall be authorized to deduct all expenses
reasonably incurred by the Agent from the proceeds of any such
sale, transfer or foreclosure.
(b) The Agent shall
have no obligation whatsoever to any Lender or any other Person to
assure that the Collateral exists or is owned by the Borrower any
other Person or is cared for, protected or insured or that the
Liens granted to the Agent herein or in any of the Loan Documents
or pursuant hereto or thereto have been properly or sufficiently or
lawfully created, perfected, protected or enforced or are entitled
to any particular priority, or to exercise or to continue
exercising at all or in any manner or under any duty of care,
disclosure or fidelity any of the rights, authorities and powers
granted or available to the Agent in this Section 13.9 or
in any of the Loan Documents, it being understood and agreed that
in respect of the Collateral, or any act, omission or event related
thereto, the Agent may act in any manner it may deem appropriate,
in its sole discretion, given the Agent's own interest in the
Collateral as one of the Lenders and that the Agent shall have no
duty or liability whatsoever to the Lenders.
(c) Each Lender hereby
appoints each other Lender as the Agent for the purpose of
perfecting Lenders' security interest in assets which, in
accordance with Article 9 of the UCC can be perfected only by
possession. Should any Lender (other than the Agent) obtain
possession of any such Collateral, such Lender shall notify the
Agent thereof, and, promptly upon the Agent's request therefor
shall deliver such Collateral to the Agent or in accordance with
the Agent's instructions.
. In
the case of the pendency of any proceeding under any Debtor Relief
Law or any other judicial proceeding relating to Borrower or any
Subsidiary, Agent (irrespective of whether the principal of any
Loan shall then be due and payable as herein expressed or by
declaration or otherwise and irrespective of whether Agent shall
have made any demand on Borrower) 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 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
and Agent (including any claim for compensation, expenses,
disbursements and advances of the Lender and Agent and their
respective agents and counsel and all other amounts due the Lender
and Agent under Section 12.2)
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 to make such payments to Agent and, in
the event that Agent shall consent to the making of such payments
directly to the Lenders, to pay to Agent any amount due for
compensation, expenses, disbursements and advances of Agent and its
agents and counsel and any other amounts due the Administrative
Agent under Section 12.2.
.
Nothing contained in this Section 13
shall be deemed to impose upon Borrower any obligation in respect
of the due and punctual performance by Agent of its obligations to
Lenders under any provision of this Agreement, and Borrower shall
have no liability to Agent or any of Lenders in respect of any
failure by Agent or any Lender to perform any of its obligations to
Agent or Lenders under this Agreement.
.
. If,
after the date hereof, any Lender (or any Affiliate of any Lender)
shall have reasonably determined that the adoption of any
Applicable Law, governmental rule, regulation or order regarding
the capital adequacy or liquidity requirements of banks or bank
holding companies, or any change therein, 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
Lender (or any Affiliate of any Lender) with any request or
directive regarding capital adequacy or liquidity requirements
(whether or not having the force of law) of any such Governmental
Authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on the capital of Lender (or
any Affiliate of Lender) as a consequence of any of such
Lender’s obligations hereunder to a level below that which it
could have achieved but for such adoption, change or compliance
(taking into consideration the policies of any Lender (or Affiliate
of any Lender) with respect to capital or liquidity adequacy
immediately before such adoption, change or compliance and assuming
that the capital of such Lender (or Affiliate of such Lender) was
fully utilized prior to such adoption, change or compliance), then,
upon demand by such Lender, Borrower shall immediately pay to such
lender such additional amounts as shall be sufficient to compensate
such lender for any such reduction actually suffered; provided, that there shall be
no duplication of amounts paid to any Lender pursuant to this
sentence and Section 14.1.
For purposes of this Section 14.2, a
change in Applicable Law, governmental rule, regulation or order
shall include, without limitation, (x) any change made or which
becomes effective on the basis of a law, treaty, rule, regulation,
interpretation administration or implementation then in force, the
effective date of which change is delayed by the terms of such law,
treaty, rule, regulation, interpretation, administration or
implementation, (y) the ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇ Street Reform and Consumer
Protection Act (Pub. L. 111-203, H.R. 4173) and all requests,
rules, regulations, guidelines, interpretations or directives
promulgated thereunder or issued in connection therewith,
regardless of the date enacted, adopted, issued or promulgated,
whether before or after the Closing Date and (z) 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 regulatory authorities, in each case pursuant to Basel III.
Such Lender’s determination of the amount to be paid to such
lender by Borrower as a result of any event referred to in this
Section 14.2 shall, absent manifest error, be
deemed final, binding and conclusive upon Borrower.
. The
obligation of any Lender to make any loan by wire transfer to
Borrower or any other Person shall be subject to all Applicable
Law, including the policy of the Board of Governors of the Federal
Reserve System on Reduction of Payments System Risk as in effect
from time to time. Borrower acknowledges that such laws,
regulations and policy may delay the transmission of any funds to
Borrower.
. In
the event (i) any Lender requests compensation pursuant to
Section 14.1 or
14.2, above, (ii) any Lender
delivers a notice described in Section 14.1 or
14.2, above, (iii) any Lender
refuses to consent to any amendment, waiver or other modification
of any Loan Document requested by any Borrower and which amendment,
waiver or other modification is required under this Agreement for
such amendment, waiver or other modification, or (iv) any Lender
defaults in its obligations to make Loans or other extensions of
credit hereunder, Borrower may, at its sole expense and effort
(including with respect to the assignment fee referred to in
Section 12.8.2), upon notice to such Lender
and Agent, require such Lender to transfer and assign, without
recourse (in accordance with and subject to the restrictions
contained in Section
12.8.2), all of its interests,
rights and obligations under this Agreement to an Eligible Assignee
that shall assume such assigned obligations (which Eligible
Assignee may be another Lender, if a Lender accepts such
assignment); provided that (x) such assignment shall
not conflict with any law, rule or regulation or order of any court
or other Governmental Authority having jurisdiction, (y) Borrower
shall have received the prior written consent of Agent, which
consent shall not unreasonably be withheld or delayed, and (z) the
Borrower or such assignee shall have paid to the affected Lender in
immediately available funds an amount equal to the sum of the
principal of and interest accrued to the date of such payment on
the outstanding Loans of such Lender, respectively, affected by
such assignment plus all fees and other amounts accrued for the
account of such Lender hereunder; provided further that, if prior to any
such transfer and assignment the circumstances or event that
resulted in such Lender’s claim for compensation or notice,
as referred to above in (i) and (ii) of this Section 14.4,
as the case may be, cease to cause such Lender to suffer increased
costs or reductions in amounts received or receivable or reduction
in return on capital, or cease to have the consequences specified
in Section 14.1 or
14.2, above, or cease to result in
amounts being payable under Section 14.1 or
14.2, as the case may be, or if such
Lender shall waive its right to claim or notice under Section 14.1 or
14.2, as applicable in respect of
such circumstances or event or shall consent to the proposed
amendment, waiver, consent or other modification, as the case may
be, then such Lender shall not thereafter be required to make any
such transfer and assignment hereunder. Each Lender hereby grants
to Agent an irrevocable power of attorney (which power is coupled
with an interest) to execute and deliver, on behalf of such Lender
as assignor, any Commitment Assignment and Acceptance necessary to
effectuate any assignment of such Lender’s interests
hereunder in the circumstances contemplated by this paragraph. The
Borrower hereby agrees to pay all reasonable costs and expenses
incurred by any Lender in connection with any such filing or
assignment, delegation and transfer.
. To
the extent that the Loan Documents provide support, through a
guarantee or otherwise, for Swap Contract or any other agreement or
instrument that is a QFC (such support, “QFC Credit Support” and
each such QFC a “Supported QFC”), the
parties acknowledge and agree as follows with respect to the
resolution power of the Federal Deposit Insurance Corporation under
the Federal Deposit Insurance Act and Title II of the ▇▇▇▇-▇▇▇▇▇
▇▇▇▇ Street Reform and Consumer Protection Act (together with the
regulations promulgated thereunder, the “U.S. Special
Resolution Regimes”) in respect of such Supported QFC and QFC
Credit Support (with the provisions below applicable
notwithstanding that the Loan Documents and any Supported QFC may
in fact be stated to be governed by the laws of the State of New
York and/or of the United States or any other state of the United
States):
14.5.1 In
the event a Covered Entity that is party to a Supported QFC (each,
a “Covered
Party”) becomes subject to a proceeding under a U.S.
Special Resolution Regime, the transfer of such Supported QFC and
the benefit of such QFC Credit Support (and any interest and
obligation in or under such Supported QFC and such QFC Credit
Support, and any rights in property securing such Supported QFC or
such QFC Credit Support) from such Covered Party will be effective
to the same extent as the transfer would be effective under the
U.S. Special Resolution Regime if the Supported QFC and such QFC
Credit Support (and any such interest, obligation and rights in
property) were governed by the laws of the United States or a state
of the United States. In the event a Covered Party or a BHC Act
Affiliate of a Covered Party becomes subject to a proceeding under
a U.S. Special Resolution Regime, Default Rights under the Loan
Documents that might otherwise apply to such Supported QFC or any
QFC Credit Support that may be exercised against such Covered Party
are permitted to be exercised to no greater extent than such
Default Rights could be exercised under the U.S. Special Resolution
Regime if the Supported QFC and the Loan Documents were governed by
the laws of the United States or a state of the United States.
Without limitation of the foregoing, it is understood and agreed
that rights and remedies of the parties with respect to a
Defaulting Lender shall in no event affect the rights of any
Covered Party with respect to a Supported QFC or any QFC Credit
Support.
14.5.2 As
used in this Section 14.5,
the following terms have the following meanings:
“BHC
Act Affiliate” of a party means an
“affiliate” (as such term is defined under, and
interpreted in accordance with, 12 U.S.C. 1841(k)) of such
party.
“Covered
Entity” means any of the following:
(i) a
“covered entity” as that term is defined in, and
interpreted in accordance with, 12 C.F.R.
§ 252.82(b);
(ii) a
“covered bank” as that term is defined in, and
interpreted in accordance with, 12 C.F.R. § 47.3(b);
or
(iii) a
“covered FSI” as that term is defined in, and
interpreted in accordance with, 12 C.F.R.
§ 382.2(b).
“Default
Right” has the meaning assigned to that term in, and
shall be interpreted in accordance with, 12 C.F.R. §§
252.81, 47.2 or 382.1, as applicable.
“QFC”
has the meaning assigned to the term “qualified financial
contract” in, and shall be interpreted in accordance with, 12
U.S.C. 5390(c)(8)(D).
. On
and as of the Closing Date, the Existing Credit Agreement shall be
amended, restated and superseded in its entirety by this Agreement.
The parties hereto acknowledge and agree that (i) this Agreement
and the other Loan Documents, whether executed and delivered in
connection herewith or otherwise, do not constitute a novation,
payment or reborrowing, or termination of the
“Obligations” (as defined in the Existing Credit
Agreement) as in effect prior to the Closing Date and (ii) such
“Obligations” are in all respects continuing (as
amended and restated hereby) with only the terms thereof being
modified as provided in this Agreement. Each reference to the
“Credit Agreement” or “Loan Agreement” in
any Loan Document shall be deemed to be a reference to the Existing
Credit Agreement as amended and restated hereby.
. All
of the “Obligations” (as defined in the Existing Credit
Agreement, the “Existing Obligations”)
outstanding under the Existing Credit Agreement and other
“Loan Documents” (as defined in the Existing Credit
Agreement, the “Existing Loan Documents”)
shall continue as Obligations hereunder to the extent not repaid on
the Closing Date, and each of this Agreement and any other Loan
Document (as defined herein) that is amended and restated in
connection with this Agreement is given as a substitution of and
modification of, and not as a payment of or novation of, the
indebtedness, liabilities and Existing Obligations of Borrower
under the Existing Credit Agreement or any Existing Loan Document,
and neither the execution and delivery of such documents nor the
consummation of any other transaction contemplated hereunder is
intended to constitute a novation of the Existing Credit Agreement
or of any of the other Existing Loan Documents or any obligations
thereunder. All security interests, pledges, assignments and other
Liens and Guaranties previously granted pursuant to the Existing
Loan Documents are hereby renewed and continued (except to the
extent otherwise set forth in this Agreement and the other Loan
Documents (as defined herein), and all such security interests,
pledges, assignments and other Liens and Guaranties shall remain in
full force and effect as security for the Obligations in the manner
set forth in this Agreement and the other Loan
Documents.
.
Amounts in respect of interest, fees and other amounts payable to
or for the account of Agent and the Lenders shall be calculated (i)
in accordance with the provisions of the Existing Credit Agreement
with respect to any period (or a portion of any period) ending
prior to the Closing Date, and (ii) in accordance with the
provisions of this Agreement with respect to any period (or a
portion of any period) commencing on or after the Closing Date.
..
.
16.1.1 Borrower
hereby acknowledges and agrees that, (i) as of the date
hereof, the Obligations include the amounts described in
Recital F, which constitute valid and subsisting
Obligations of Borrower owed to Agent and the Lenders not subject
to any credits, offsets, defenses, claims, counterclaims or
adjustments of any kind; (ii) as a result of the Specified Events
of Default, neither Agent nor any Lender has any obligation
whatsoever to make any financial accommodation to Borrower,
including entering into this Agreement; (iii) Borrower
received proper and adequate notice of the Specified Events of
Default under the Existing Credit Agreement and the other Loan
Documents pursuant to the Reservation of Rights Letters; and (iv)
other than the Specified Events of Default, no Default or Event of
Default has occurred and continues to exist as of the Closing
Date.
16.1.2 Borrower
hereby ratifies and reaffirms the validity and enforceability
(without defense, counterclaim or offset of any kind) of the Liens
granted to secure the Obligations by Borrower to Agent, for the
benefit of the Lenders, pursuant to the Collateral Documents to
Borrower is a party. Borrower acknowledges and agrees that all such
Liens granted by Borrower continue to secure the Obligations
notwithstanding the occurrence of the Closing Date.
.
16.2.1 Forbearance Period. Subject to
the terms and conditions of this Section 16,
Agent and the Lenders hereby agree to forbear from taking any
Enforcement Actions as a result of the occurrence of the Specified
Events of Default during the period from and including the Closing
Date until the earliest to occur of any of the following events
(each such event, a “Forbearance Termination
Event”; the date of such occurrence (with such date
under clause (a) of this Section 16.2.1
as may be extended as provided in Section 16.2.3,
the “Forbearance
Termination Date”; and such period, the
“Forbearance
Period”):
(a) 11:59 p.m. (Eastern
Time) on May 10, 2020;
(b) the occurrence of a
Default or Event of Default that is not a Specified Event of
Default;
(c) the occurrence of
an event of default (or similar term or phrase) under any Permitted
Excluded Subsidiary Financing that is not a NordLB Specified Event
of Default; and
(d) the commencement
against Borrower, any Subsidiary of Borrower (including a
Restricted Subsidiary), Agent or any Lender of any litigation or
other exercise of any rights or remedies based on an event of
default (or similar term) under the Excluded Subsidiary Facility by
or on behalf of NordLB.
16.2.2 Limited
Effect of Forbearance. Notwithstanding the foregoing,
Borrower acknowledges and agrees that the temporary forbearance
granted by Agent and the Lenders pursuant to Section 16.2
shall not constitute, and shall not be deemed to constitute, a
waiver of the Specified Events of Default or of any other Default
or Event of Default under the Loan Documents or a waiver of any of
the rights and remedies provided thereunder, under law, at equity
or otherwise (except as otherwise expressly provided in
Section 16.2.1).
16.2.3 Extension of Forbearance. If a
Forbearance Termination Event has not occurred prior to 11:59 p.m.
(Eastern Time) on May 10, 2020, the Forbearance Period shall
initially extend without further Lender consent or documentation to
the earlier of (i) 11:59 p.m. (Eastern Time) on July 1, 2020 and
(ii) the occurrence of a Forbearance Termination Event. If a
Forbearance Termination Event has not occurred prior to 11:59 p.m.
(Eastern Time) on July 1, 2020, the Forbearance Period shall
further extend without further Lender consent or documentation to
the earlier of (i) 11:59 p.m. (Eastern Time) on August 15, 2020 and
(ii) the occurrence of a Forbearance Termination
Event.
16.2.4 Termination
of Forbearance. On and after the Forbearance Termination
Date, Agent's and the Lenders' agreement under Section 16.2 to
forbear shall terminate automatically without the requirement of
any demand, presentment, protest, notice or further act or action
by Agent or the Lenders. Borrower expressly acknowledges and agrees
that the effect of such termination will be to permit Agent and the
Lenders to demand that the Obligations be paid in full and to
exercise any and all other rights and remedies available to them
under the Loan Documents and this Agreement, at law, in equity, or
otherwise without any further lapse of time, expiration of
applicable grace periods, or (except as otherwise required under
provisions of applicable law that cannot be waived) requirements of
notice to Borrower, all of which are expressly waived by
Borrower.
.
Borrower, on behalf of itself and on behalf of its Subsidiaries,
successors, assigns, legal representatives and financial advisors
(collectively, the “Releasing Parties”),
hereby releases, acquits and forever discharges Agent, the Lenders
and each of their respective past and present directors, officers,
employees, agents, attorneys, affiliates, predecessors, successors,
administrators and assigns (the “Released Parties”) of and
from any and all claims, actions, causes of action, demands,
rights, damages, costs, loss of service, expenses and compensation
whatsoever heretofore or hereafter arising from any events or
occurrences, or anything done, omitted to be done, or allowed to be
done by any of the Released Parties, on or before the date of
execution of this Agreement, WHETHER KNOWN OR UNKNOWN, FORESEEN OR
UNFORESEEN, including, without limitation, any of the same arising
from or related to anything done, omitted to be done, or allowed to
be done by any of the Released Parties and in any way connected
with this Agreement or any of the Loan Documents, any other credit
facilities provided or not provided, any advances made or not made,
or any past or present deposit or other accounts of any Releasing
Party with any Released Party and the handling of the same by any
Released Party, including, without limitation, the manner and
timing in which items were deposited or credited thereto or funds
transferred therefrom or made available to any of the Releasing
Parties, the honoring or returning of any checks drawn on any
account, and any other dealings between the Releasing Parties and
the Released Parties (the “Released Matters”).
Releasing Parties each further agree never to commence, aid or
participate in (except to the extent required by order or legal
process issued by a court or governmental agency of competent
jurisdiction) any legal action or other proceeding based in whole
or in part upon the Released Matters. In furtherance of this
general release, Releasing Parties each acknowledge and waive the
benefits of California Civil Code Section 1542 (and all similar
ordinances and statutory, regulatory, or judicially created laws or
rules of any other jurisdiction), which provides:
A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR
RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER
FAVOR AT THE TIME OF EXECUTING THE RELEASE, AND THAT IF KNOWN BY
HIM OR HER WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT
WITH THE DEBTOR OR RELEASED PARTY.
Releasing Parties
each agree that this waiver and release is an essential and
material of this Agreement, and that the agreements in this
paragraph are intended to be in full satisfaction of any alleged
injuries or damages to or of any Releasing Parties in connection
with the Released Matters. Each Releasing Party represents and
warrants that it has not purported to convey, transfer or assign
any right, title or interest in any Released Matter to any other
person or entity and that the foregoing constitutes a full and
complete release of the Released Matters. Releasing Parties each
also understand that this release shall apply to all unknown or
unanticipated results of the transactions and occurrences described
above, as well as those known and anticipated. Releasing Parties
each have consulted with legal counsel prior to signing this
release, or had an opportunity to obtain such counsel and knowingly
chose not to do so, and each Releasing Party executes such release
voluntarily, with the intention of fully and finally extinguishing
all Released Matters.
[Remainder of page intentionally left blank]
IN
WITNESS WHEREOF, this Agreement has been duly executed as of the
date first written above.
BORROWER:
a
Delaware corporation
By:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇
▇▇▇▇▇▇▇▇
Title:
Senior Vice
President - Operations
ADMINISTRATIVE
AGENT, SOLE LEAD ARRANGER AND LENDER:
MUFG
UNION BANK, N.A.
By:
/s/ ▇▇▇▇
▇▇▇▇▇
Name:
▇▇▇▇
▇▇▇▇▇
Title:
Director
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SYNDICATION
AGENT AND LENDER:
UMPQUA
BANK
By:
/s/▇▇▇▇▇▇▇
Barkley_____________
Name:
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Title:
SVP and Regional
Credit Director
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CO-DOCUMENTATION
AGENT AND LENDER:
ZIONS
BANCORPORATION, N.A. (fka ZB, N.A.) dba CALIFORNIA BANK AND
TRUST
By:
/s/ ▇▇▇▇▇
▇▇▇▇
Name:
▇▇▇▇▇
▇▇▇▇
Title:
Vice
President
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CO-DOCUMENTATION
AGENT AND LENDER:
U.S.
BANK NATIONAL ASSOCIATION
By:
/s/ ▇▇▇▇ ▇▇▇▇▇▇
Name:
▇▇▇▇
▇▇▇▇▇▇
Title:
Senior Vice
President
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LENDER:
COLUMBIA STATE
BANK
By:
/s/ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
Title:
VP, Special Credits
Officer
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Schedule A
Term Loan Commitment
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Lender
|
Commitment as of April 1, 20201
|
Pro Rata Share
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MUFG
Union Bank, N.A.
|
$21,310,679.11
|
25.5172413793%
|
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Umpqua
Bank
|
$20,158,750.56
|
24.1379310345%
|
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Zions
Bancorporation, N.A. (fka ZB, N.A.) dba California Bank &
Trust
|
$17,278,929.05
|
20.6896551724%
|
|
U.S.
Bank National Association
|
$16,127,000.43
|
19.3103448276%
|
|
Columbia
State Bank
|
$8,639,464.49
|
10.3448275862%
|
|
TOTAL:
|
$83,514,823.64
|
100.0000000000%
|
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Schedule
A — Page 1
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Schedule 1.1a
[Reserved]
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Schedule
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Schedule 1.1b
Eligible Leases
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Schedule
1.1b — Page 1
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Schedule 1.1c
Equipment
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Schedule
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Schedule 1.1d
Excluded Assets
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Schedule
1.1d — Page 1
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Schedule 1.1e
Material Contracts
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Schedule
1.1e — Page 1
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Schedule 1.1f
Permitted Indebtedness
See
Schedule 7.13
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Schedule
1.1f — Page 1
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Schedule 1.1g
Liens of Record
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Schedule
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Schedule 1.1h
Schedule of Documents
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Schedule
1.1h — Page 1
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Schedule 1.1i
[Reserved]
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Schedule
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Schedule 5.2
Executive Offices; Corporate or Other Names; Conduct of
Business
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Schedule
5.2 — Page 1
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Schedule 5.7
No Other Liabilities; No Material Adverse Changes
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Schedule
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Schedule 5.9
Trade Names
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Schedule
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Schedule 5.10
Litigation
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Schedule
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Schedule 5.17
Hazardous Materials
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Schedule
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Schedule 5.19
Insurances
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Schedule
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Schedule 5.22
Depreciation Policies
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Schedule
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Schedule 5.28
Deposit Accounts
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Schedule
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Schedule 6.4
Insurance as of the Closing Date
See
Schedule 5.19
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Schedule
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Schedule 7.13
Indebtedness and Guaranteed Indebtedness Existing on the Closing
Date
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Schedule
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Schedule 7.19
Investments Existing as of the Closing Date
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Schedule
7.19 — Page 1
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Schedule 8.3
Form of Maintenance Expense Report
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Schedule
8.3 — Page 1
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Schedule 8.9
Form of Bid Summary Report
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Schedule
8.9 — Page 1
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EXHIBIT A
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A-1
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EXHIBIT B
[Reserved]
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B-1
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EXHIBIT C
Form of Compliance Certificate
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C-2
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EXHIBIT C
COMPLIANCE CERTIFICATE
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C-2
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EXHIBIT D
Form of Commitment Assignment and Acceptance
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D-2
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Form of
Commitment Acceptance & Assignment
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EXHIBIT D
Form of Commitment Assignment and Acceptance
COMMITMENT ASSIGNMENT AND ACCEPTANCE AGREEMENT
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D-2
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Form of
Commitment Acceptance & Assignment
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EXHIBIT E
[Reserved]
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E-1
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EXHIBIT F
[Reserved]
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F-1
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EXHIBIT G
[Reserved]
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G-1
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EXHIBIT H
[Reserved]
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H-1
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EXHIBIT I
Form of Placard
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I-1
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