NINTH AMENDMENT TO NOTE PURCHASE AGREEMENT
Exhibit 10.6
NINTH AMENDMENT TO NOTE PURCHASE AGREEMENT
THIS NINTH AMENDMENT TO NOTE PURCHASE AGREEMENT (this “Amendment”), dated as of August 15, 2024, is entered into by and among TERRAN ORBITAL OPERATING CORPORATION, a Delaware corporation (the “Issuer”), the Guarantors (as defined in the Note Purchase Agreement referred to below) identified on the signature pages hereof, the purchasers identified on the signature pages hereof (such purchasers, and the other purchasers party to the below defined Note Purchase Agreement, together with their respective successors and permitted assigns, each individually, a “Purchaser”, and collectively, the “Purchasers”), and LOCKHEED ▇▇▇▇▇▇ CORPORATION, a Maryland corporation (“Lockheed ▇▇▇▇▇▇”), as Authorized Representative for the Purchasers (in such capacity, together with its successors and assigns in such capacity, the “Authorized Representative”):
W I T N E S S E T H
WHEREAS, Issuer, the Guarantors from time to time party thereto, the Purchasers and the Authorized Representative are parties to that certain Note Purchase Agreement, dated as of March 8, 2021 (as amended by that certain First Amendment to Note Purchase Agreement, dated as of April 30, 2021, as further amended by that certain Second Amendment to Note Purchase Agreement, dated as of May 21, 2021, as further amended by that certain Third Amendment to Note Purchase Agreement, dated as of June 7, 2021, as further amended by that certain Fourth Amendment to Note Purchase Agreement, dated as of October 28, 2021, as further amended by that certain Fifth Amendment to Note Purchase Agreement, dated as of November 24, 2021, as further amended by that certain Sixth Amendment to Note Purchase Agreement, dated as of March 9, 2022, as further amended by that certain Seventh Amendment to Note Purchase Agreement, dated as of March 25, 2022, as supplemented by that certain Joinder Agreement dated April 4, 2022, and as further amended by that certain Eighth Amendment to Note Purchase Agreement, dated as of October 31, 2022, the “Existing Note Purchase Agreement,” and the Existing Note Purchase Agreement as amended hereby, the “Note Purchase Agreement”), pursuant to which the Issuer issued and the Purchasers purchased Senior Secured Notes due 2026 in an aggregate original principal amount of $86,859,108 (the “Notes”);
WHEREAS, in connection with that certain Agreement and Plan of Merger, dated as of the date hereof (as amended, restated, supplemented or otherwise modified from time to time pursuant to the terms of this Agreement, the “Acquisition Agreement”), by and among Lockheed ▇▇▇▇▇▇, Tholian Merger Sub, Inc., a Delaware corporation and wholly owned Subsidiary of Lockheed ▇▇▇▇▇▇, and Terran Orbital Corporation, a Delaware corporation (the “Parent”), Lockheed ▇▇▇▇▇▇ intends to, directly or indirectly, acquire all of the outstanding Equity Interests of the Parent;
WHEREAS, in order to provide liquidity to the Parent and its Subsidiaries during the period between the signing of the Acquisition Agreement and the Closing (as defined in the Acquisition Agreement) thereunder, the Parent, as issuer, and the Issuer and the Guarantors (other than the Parent), as guarantors, propose to enter into that certain Note Purchase Agreement (the “Bridge Note Purchase Agreement”), to be dated on the date hereof, with the purchasers party thereto (the “Bridge Note Purchasers”), and Wilmington Savings Fund Society, FSB, as administrative agent and collateral agent for the Bridge Note Purchasers, pursuant to which the Parent will issue and the Bridge Note Purchasers will purchase super-priority first lien senior secured convertible notes due 2024 in an aggregate original principal amount of $30,000,000 (collectively, the “Bridge Notes”);
1
WHEREAS, the Issuer has requested that the Authorized Representative and the Purchasers amend the Existing Note Purchase Agreement to, among other things, permit the purchase and sale of the Bridge Notes and the other transactions contemplated by the Bridge Note Purchase Agreement upon the terms and conditions set forth therein; and
WHEREAS, upon the terms and conditions set forth herein, the Authorized Representative and the Purchasers are willing to amend the Existing Note Purchase Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
2
3
4
5
[Signature pages follow]
6
IN WITNESS WHEREOF, the parties have entered into this Amendment as of the date first above written.
ISSUER: |
TERRAN ORBITAL OPERATING CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇: Chairman and Chief Executive Officer
|
|
|
GUARANTORS: |
TERRAN ORBITAL CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇: Chairman and Chief Executive Officer |
|
|
|
TYVAK NANO-SATELLITE SYSTEMS, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇: Co-President |
|
PREDASAR CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇: Chairman and Chief Executive Officer
|
[Signature Page to Ninth Amendment to Note Purchase Agreement]
AUTHORIZED REPRESENTATIVE: |
LOCKHEED ▇▇▇▇▇▇ CORPORATION, as Authorized Representative |
|
|
|
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
|
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
|
Title: Vice President, Corporate Development |
[Signature Page to Ninth Amendment to Note Purchase Agreement]
PURCHASERS: |
LOCKHEED ▇▇▇▇▇▇ CORPORATION, as a Purchaser |
|
|
|
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
|
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
|
Title: Vice President, Corporate Development |
[Signature Page to Ninth Amendment to Note Purchase Agreement]
BPC LENDING II LLC, as a Purchaser |
|
|
|
|
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ |
|
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ |
|
Title: Portfolio Manager |
[Signature Page to Ninth Amendment to Note Purchase Agreement]
ANNEX A
AMENDED NOTE PURCHASE AGREEMENT
[See Attached]
2
Note Purchase Agreement, dated as of March 8, 2021, as amended by
the First Amendment to Note Purchase Agreement, dated as of April 30, 2021,
the Second Amendment to Note Purchase Agreement, dated as of May 21, 2021,
the Third Amendment to Note Purchase Agreement, dated as of June 7, 2021,
the Fourth Amendment to Note Purchase Agreement, dated as of October 28, 2021,
the Fifth Amendment to Note Purchase Agreement, dated as of November 24, 2021,
the Sixth Amendment to Note Purchase Agreement, dated as of March 9, 2022,
the Seventh Amendment to Note Purchase Agreement, dated as of March 25, 2022,
and the Eighth Amendment to Note Purchase Agreement, dated as of October 31, 2022,
and the Ninth Amendment to Note Purchase Agreement, dated as of August 15, 2024
NEITHER THIS NOTE PURCHASE AGREEMENT NOR THE NOTES ISSUED HEREUNDER HAVE BEEN REGISTERED PURSUANT TO THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR QUALIFIED PURSUANT TO ANY APPLICABLE STATE SECURITIES LAW. THE NOTES ISSUED UNDER THIS NOTE PURCHASE AGREEMENT MAY BE RESOLD ONLY IF REGISTERED PURSUANT TO THE PROVISIONS OF THE SECURITIES ACT AND QUALIFIED PURSUANT TO APPLICABLE STATE SECURITIES LAWS OR IF AN EXEMPTION FROM SUCH REGISTRATION AND QUALIFICATION IS AVAILABLE, EXCEPT UNDER CIRCUMSTANCES WHERE NEITHER SUCH REGISTRATION, QUALIFICATION OR EXEMPTION IS REQUIRED BY LAW.
THE NOTES HEREUNDER AND THE INDUCEMENT WARRANTS UNDER THE INDUCEMENT WARRANT PURCHASE AGREEMENT HAVE BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT (“OID”) FOR U.S. FEDERAL INCOME TAX PURPOSES. THE ISSUE PRICE, AMOUNT OF OID, ISSUE DATE AND YIELD TO MATURITY OF THE NOTES AND THE INDUCEMENT WARRANTS MAY BE OBTAINED FROM THE ISSUER BY CONTACTING: INVESTOR RELATIONS, EMAIL: ▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.
NOTE PURCHASE AGREEMENT
Dated as of March 8, 2021
among
TERRAN ORBITAL CORPORATION,
which on the Combination Closing Date shall be merged with and into Titan Merger Sub, Inc. and expected to be renamed TERRAN ORBITAL OPERATING CORPORATION, as the Issuer,
The Guarantors from time to time party hereto,
The Purchasers from time to time party hereto
and
LOCKHEED ▇▇▇▇▇▇ CORPORATION,
as Authorized Representative
$86,859,108 Senior Secured Notes Due 2026
\\4165-2766-4210 v2v5
TABLE OF CONTENTS
Page
Article I DEFINITIONS AND ACCOUNTING TERMS 7
1.01 Defined Terms 7
1.02 Other Interpretive Provisions 31
1.03 Accounting Terms 32
1.04 Exchange Notes 32
1.05 Times of Day 34
Article II THE NOTES 34
2.01 Authorization and Issuance of Notes 34
2.02 Reserved 34
2.03 Issuance and Sale of Securities 34
2.04 Notes 35
2.05 The Closing Date 35
2.06 Reserved 35
2.07 Prepayments/Commitment Reductions 35
2.08 Repayment of Notes 38
2.09 Interest; Other Amounts 38
2.10 Reserved 39
2.11 Computation of Interest 39
2.12 Payments Generally 39
2.13 No Purchase of Notes 40
2.14 Sharing of Payments by Purchasers 40
2.15 AHYDO 40
Article III TAXES 41
3.01 Taxes 41
3.02 Survival 43
3.03 Mitigation of Obligations 43
Article IV GUARANTY 43
4.01 The Guaranty 43
4.02 Obligations Unconditional 43
4.03 Reinstatement 44
4.04 Certain Additional Waivers 45
4.05 Remedies 45
\\4165-2766-4210 v2v5
4.06 Rights of Contribution 45
4.07 Guarantee of Payment; Continuing Guarantee 45
Article V CONDITIONS PRECEDENT 45
5.01 Conditions to Effectiveness of Agreement and Purchase of Notes 45
Article VI REPRESENTATIONS AND WARRANTIES 49
6.01 Existence, Qualification and Power 49
6.02 Authorization; No Contravention 49
6.03 Governmental Authorization; Other Consents 49
6.04 Binding Effect 49
6.05 Financial Statements; No Material Adverse Effect 50
6.06 Litigation 50
6.07 No Default 51
6.08 Ownership of Property; Liens 51
6.09 Environmental and Safety Laws 51
6.10 Insurance 51
6.11 Tax Returns and Payments 52
6.12 ERISA Compliance 52
6.13 Subsidiaries and Capitalization; Management Fees 53
6.14 Margin Regulations; Investment Company Act 54
6.15 Disclosure 54
6.16 Compliance with Laws 54
6.17 Intellectual Property; Licenses, Etc. 54
6.18 Solvency 57
6.19 Perfection of Security Interests in the Collateral 57
6.20 Business Locations 57
6.21 Sanctions Concerns; Anti-Corruption Laws; PATRIOT Act 57
6.22 Limited Offering of Notes 58
6.23 Registration Rights; Issuance Taxes 58
6.24 Material Contracts; Government Contracts 58
6.25 Employee Agreements; Data Privacy. 59
6.26 Labor Matters 60
6.27 Affected Financial Institution 60
6.28 Ranking of Notes 60
6.29 Regulation H 60
6.30 Strategic Cooperation Agreement 61
\\4165-2766-4210 v2v5
ARTICLE VI-A. Representations of the Purchasers 61
Article VII AFFIRMATIVE COVENANTS 61
7.01 Financial Statements; Purchaser Calls 61
7.02 Certificates; Other Information 62
7.03 Notices 65
7.04 Payment of Obligations 65
7.05 Preservation of Existence, Etc. 66
7.06 Maintenance of Properties 66
7.07 Maintenance of Insurance 66
7.08 Compliance with Laws 67
7.09 Books and Records 67
7.10 Inspection Rights 67
7.11 Use of Proceeds 67
7.12 Additional Subsidiaries 68
7.13 ERISA Compliance 68
7.14 Pledged Assets 68
7.15 Compliance with Material Contracts 69
7.16 Deposit Accounts 69
7.17 Reserved 69
7.18 Intellectual Property; Consent of Licensors 69
7.19 Anti-Corruption Laws 70
7.20 Post-Closing Obligations 70
7.21 Collateral Agent 70
7.22 Collateral Access Agreements 71
Article VIII NEGATIVE COVENANTS 71
8.01 Liens 71
8.02 Investments 73
8.03 Indebtedness 74
8.04 Fundamental Changes 76
8.05 Dispositions 76
8.06 Restricted Payments 76
8.07 Change in Nature of Business 77
8.08 Transactions with Affiliates and Insiders 77
8.09 Burdensome Agreements 77
8.10 Use of Proceeds 78
\\4165-2766-4210 v2v5
8.11 Prepayment of Other Indebtedness 78
8.12 Organization Documents; Fiscal Year; Legal Name, Jurisdiction of Formation and Form of Entity; Certain Amendments 78
8.13 Ownership of Subsidiaries 79
8.14 Sale Leasebacks 79
8.15 Sanctions; Anti-Corruption Laws 80
Article IX EVENTS OF DEFAULT AND REMEDIES 80
9.01 Events of Default 80
9.02 Remedies Upon Event of Default 83
9.03 Application of Funds 84
Article X [RESERVED] 84
Article XI AUTHORIZED REPRESENTATIVE 84
11.01 Appointment and Authority 84
11.02 Rights as a Purchaser 86
11.03 Exculpatory Provisions 86
11.04 Reliance by Authorized Representative 87
11.05 Delegation of Duties 88
11.06 Resignation or Removal of Authorized Representative 88
11.07 Non-Reliance on Collateral Agent and Other Purchasers 89
11.08 Authorized Representative May File Proofs of Claim 89
Article XII MISCELLANEOUS 90
12.01 Amendments, Etc. 90
12.02 Notices and Other Communications; Facsimile Copies 91
12.03 No Waiver; Cumulative Remedies; Enforcement 92
12.04 Expenses; Indemnity; and Damage Waiver 93
12.05 Marshalling; Payments Set Aside 95
12.06 Successors and Assigns; Transfers 96
12.07 Treatment of Certain Information; Confidentiality 98
12.08 Set-off 99
12.09 Interest Rate Limitation 99
12.10 Counterparts; Integration; Effectiveness 99
12.11 Survival of Representations and Warranties 99
12.12 Severability 100
12.13 Governing Law; Jurisdiction; Etc. 100
12.14 Waiver of Right to Trial by Jury 101
\\4165-2766-4210 v2v5
12.15 Judgment Currency 101
12.16 Electronic Execution of Assignments and Certain Other Documents 102
12.17 USA PATRIOT Act 102
12.18 No Advisory or Fiduciary Relationship 103
12.19 Acknowledgement and Consent to Bail-In of EEA Financial Institutions 103
12.20 Conflicts 104
12.21 Collateral and Guaranty Matters 104
12.22 Publicity 105
12.23 Tax Treatment 105
12.24 Working Capital Facility 105
12.25 Third Amended and Restated Certificate of Incorporation of the Issuer 106
. 106
SCHEDULES
II Notes
6.10 Insurance
6.13(a) Subsidiaries
6.13(b) Capitalization
6.17 Intellectual Property
6.20(a) Locations of Real Property
6.20(b) Taxpayer and Organizational Identification Numbers
6.20(c) Changes in Legal Name, State of Organization and Structure
6.24(a) Material Contracts
6.25(b) Other Contracts
7.11 Leviathan Costs
7.20 Post-Closing Obligations
8.01 Liens Existing on the Closing Date
8.02 Investments Existing on the Closing Date
8.03 Indebtedness Existing on the Closing Date
12.02 Certain Addresses for Notices
EXHIBITS
A Form of Note
B Form of Assignment and Assumption
C Form of Compliance Certificate
D Form of Joinder Agreement
E Fourth Amended and Restated Certificate of Incorporation of the Issuer
\\4165-2766-4210 v2v5
NOTE PURCHASE AGREEMENT
This NOTE PURCHASE AGREEMENT is entered into as of March 8, 2021 (this “Agreement”) among TERRAN ORBITAL CORPORATION, a Delaware corporation, which on the Combination Closing Date shall be merged with and into TITAN MERGER SUB, INC., a Delaware corporation (“Merger Sub”) and expected to be named TERRAN ORBITAL OPERATING CORPORATION (the “Issuer”), the Guarantors (defined herein) from time to time party hereto, the Purchasers (defined herein) from time to time party hereto and Lockheed ▇▇▇▇▇▇ Corporation, a Maryland corporation (“Lockheed ▇▇▇▇▇▇”), as authorized representative (in such capacity, the “Authorized Representative”) for the Purchasers.
The Issuer has proposed to issue and sell, on the Closing Date, to the Purchasers and the Purchasers have agreed to purchase, Senior Secured Notes due 2026, in an aggregate original principal amount of $86,859,108, in the amounts and for the consideration set forth on Schedule II and upon the terms and conditions hereinafter provided.
In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:
DEFINITIONS AND ACCOUNTING TERMS
As used in this Agreement, the following terms shall have the meanings set forth below:
“Acquiror” means Tailwind Two Acquisition Corp., a Cayman Islands exempted company (which, on the Combination Closing Date, will domesticate as a Delaware corporation and be renamed TERRAN ORBITAL CORPORATION).
“Acquisition” means, with respect to any Person, the acquisition by such Person, in a single transaction or in a series of related transactions, of (i) assets of another person which constitute all or substantially all of the assets of such Person, or of any division, line of business or other business unit of such Person or (ii) at least a majority of the Voting Stock of another Person, whether or not involving a merger, amalgamation or consolidation with such other Person and whether for cash, property, services, assumption of Indebtedness, securities or otherwise.
“Acquisition Agreement” means that certain Agreement and Plan of Merger, dated as of the date hereof (as amended, restated, supplemented or otherwise modified from time to time pursuant to the terms of this Agreement,), by and among Lockheed ▇▇▇▇▇▇, Tholian Merger Sub, Inc., a Delaware corporation and wholly owned Subsidiary of Lockheed ▇▇▇▇▇▇, and the Issuer, Lockheed ▇▇▇▇▇▇ intends to, directly or indirectly acquire all of the outstanding Equity Interests of the Issuer.
Signature Page to Note Purchase Agreement
\\4165-2766-4210 v2v5
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) UK Financial Institution.
“Affiliate” means, with respect to a specified Person, (a) another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified and (b) other than with respect to any Purchaser and the Collateral Agent, any manager, officer or director of such Person.
“Agreement” has the meaning assigned to such term in the preamble hereto.
“Anniversary Date” has the meaning specified in Section 2.09(a).
“Approved Fund” means any Fund that is administered or managed by (a) a Purchaser, (b) an Affiliate of a Purchaser or (c) an entity or an Affiliate of an entity that administers or manages a Purchaser.
“Assignment and Assumption” means an assignment and assumption agreement entered into by a Purchaser and a Person to which Notes are being transferred, in substantially the form of Exhibit B hereto.
“Attributable Indebtedness” means, on any date, (a) in respect of any Capital Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, (b) in respect of any Synthetic Lease of any Person, the capitalized amount of the remaining lease payments under the relevant lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a Capital Lease and (c) in respect of any Securitization Transaction of any Person, the outstanding principal amount of such financing, after taking into account reserve accounts and making appropriate adjustments, determined by the Required Purchasers in their reasonable judgment.
“Audited Financial Statements” means the audited consolidated balance sheet of the Issuer and its Subsidiaries for the fiscal year ended December 31, 2019, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal year of the Issuer and its Subsidiaries, including the notes thereto, audited by independent public accountants of recognized national standing and prepared in conformity with GAAP.
“Authorized Representative” has the meaning assigned to such term in the preamble hereto.
“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, rule, regulation 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 insolvency proceedings).
“Bid” means each outstanding bid, quotation or proposal by the Issuer or any of its Subsidiaries that (i) with respect to Government Contracts, if accepted or awarded could lead to a Government Contract
\\4165-2766-4210 v2v5
and (ii) with respect to Government Subcontracts, if accepted or awarded could lead to a Government Subcontract.
“Board of Directors” means (a) with respect to a corporation, the board of directors of the corporation or any committee thereof duly authorized to act on behalf of such board, (b) with respect to a partnership, the Board of Directors of the general partner of the partnership, (c) with respect to a limited liability company, the managing member or members or any controlling committee of managing members thereof, and (d) with respect to any other Person, the board or committee of such Person serving a similar function.
“BP Notes” means the Notes held by BPC Lending II LLC on the Seventh Amendment Effective Date and thereafter held by BPC Lending II LLC and its successors and assigns.
“BP Subordination Agreement” means that certain Subordination Agreement, dated as of March 25, 2022, by and between BPC Lending II LLC, as subordinated creditor, and Wilmington Savings Fund Society, FSB, as the senior party.
“BP Transaction Support Agreement” means that certain Transaction Support Agreement, dated as of October 28, 2021, by and among Acquiror, the Issuer and BPC Lending II LLC, as amended by that certain Amendment to Transaction Support Agreement, dated as of March 25, 2022.
“Bridge Note Documents” means the Bridge Note Purchase Agreement and all other Note Documents (as such term is defined in the Bridge Note Purchase Agreement), in each case, as amended, restated, amended and restated, supplemented or otherwise modified from time to time in a manner permitted by Section 8.12.
“Bridge Note Facility” has the meaning provided in Section 8.03(r).
“Bridge Note Purchase Agreement” means that certain Note Purchase Agreement dated as of the Ninth Amendment Effective Date, by and among the Acquiror, as issuer, the other Note Parties, as guarantors, Wilmington Savings Fund Society, FSB, as administrative agent and collateral agent, and the purchasers from time to time party thereto, as amended, restated, supplemented or otherwise modified from time to time in a manner permitted by Section 8.12.
“Bridge Notes” means the senior secured notes in an aggregate original principal amount of $30,000,000 issued pursuant to the Bridge Note Purchase Agreement.
“Broken Sound Lease” means that Lease, dated as of April 1, 2021, between 6800 Broken Sound LLC, as landlord, and Terran Orbital Operating Corporation (f/k/a Terran Orbital Corporation), as tenant.
“Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, New York, New York.
“Businesses” means, at any time, a collective reference to the businesses operated by the Issuer and its Subsidiaries at such time.
“Call Premium” means “Call Premium” as such term is defined in the FP Note Purchase Agreement as in effect on the Seventh Amendment Effective Date.
\\4165-2766-4210 v2v5
“Capital Lease” means, as applied to any Person, any lease of any property by that Person as lessee which, in accordance with GAAP, is required to be accounted for as a capital lease on the balance sheet of that Person.
“Cash Equivalents” means, as at any date, (a) securities issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality thereof (provided, that, the full faith and credit of the United States is pledged in support thereof) having maturities of not more than twelve months from the date of acquisition, (b) Dollar denominated time deposits and certificates of deposit of (i) any United States commercial bank of recognized standing having capital and surplus in excess of $500,000,000 or (ii) any bank whose short-term commercial paper rating from S&P is at least A-1 or the equivalent thereof or from ▇▇▇▇▇’▇ is at least P-1 or the equivalent thereof (any such bank being an “Approved Bank”), in each case with maturities of not more than 270 days from the date of acquisition, (c) commercial paper and variable or fixed rate notes issued by any Approved Bank (or by the parent company thereof) or any variable rate notes issued by, or guaranteed by, any domestic corporation rated A-1 (or the equivalent thereof) or better by S&P or P-1 (or the equivalent thereof) or better by Moody’s and maturing within six months of the date of acquisition, (d) repurchase agreements entered into by any Person with a bank or trust company (including any of the Purchasers) or recognized securities dealer having capital and surplus in excess of $500,000,000 for direct obligations issued by or fully guaranteed by the United States in which such Person shall have a perfected first priority security interest (subject to no other Liens) and having, on the date of purchase thereof, a fair market value of at least 100% of the amount of the repurchase obligations, and (e) Investments, classified in accordance with GAAP as current assets, in money market investment programs registered under the Investment Company Act of 1940, which are administered by reputable financial institutions having capital of at least $500,000,000 and the portfolios of which are limited to Investments of the character described in the foregoing subdivisions (a) through (d).
“Cashless Exercise” has the meaning specified in Section 1.04(c).
“Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (i) the adoption or taking effect of any law, rule, regulation or treaty, (ii) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (iii) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that, notwithstanding anything herein to the contrary, (x) the ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇ Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.
“Change of Control” means the occurrence of any of the following events:
\\4165-2766-4210 v2v5
provided, that the Combination shall not constitute a Change of Control.
“Closing Date” means the date hereof.
“Collateral” means a collective reference to all real and personal property with respect to which ▇▇▇▇▇ in favor of the Collateral Agent, for the benefit of the Secured Parties, are purported to be granted pursuant to and in accordance with the terms of the Collateral Documents; provided, that for the avoidance of doubt, Collateral shall not include any Excluded Property.
“Collateral Access Agreement” means an agreement in form and substance reasonably satisfactory to the Authorized Representative and the Collateral Agent pursuant to which a lessor of real property on which Collateral is stored or otherwise located, or a warehouseman, processor or other bailee of inventory or other property owned by any Note Party, acknowledges the Liens of the Collateral Agent and waives (or, if approved by the Authorized Representative, subordinates) any Liens held by such Person on such property, and permits the Collateral Agent reasonable access to any Collateral stored or otherwise located thereon.
“Collateral Agency and Intercreditor Agreement” means the Amended and Restated Collateral Agency and Intercreditor Agreement dated as of June 3, 2021, by and among the Collateral Agent, the Authorized Representative and the Purchasers.
“Collateral Agent” means U.S. Bank Trust Company, National Association (as successor in interest to U.S. Bank National Association), in its capacity as collateral agent for the Secured Parties pursuant to
\\4165-2766-4210 v2v5
the Collateral Agency and Intercreditor Agreement, or any successor collateral agent appointed in accordance with the Collateral Agency and Intercreditor Agreement.
“Collateral Documents” means a collective reference to the Security Agreement, the Pledge Agreement, the Deposit Account Control Agreements, the Perfection and Due Diligence Certificate, the Collateral Access Agreements, the Real Estate Security Documents, the IP Security Agreements and other security documents as may be executed and delivered by the Note Parties pursuant to the terms of Sections 7.12 or 7.14 or pursuant to the terms of any Collateral Document.
“Combination” means the direct or indirect acquisition of all of the outstanding Equity Interests of the Issuer, as contemplated by the Merger Agreement.
“Combination Closing Date” means March 25, 2022.
“Compliance Certificate” means a certificate substantially in the form of Exhibit C.
“Confidential Information Agreement” has the meaning specified in Section 6.25(a).
“Consenting Party” has the meaning specified in Section 12.22.
“Consolidated Adjusted EBITDA” means, for any period, an amount equal to (a) Consolidated Net Income for such period, plus to the extent reducing Consolidated Net Income, the sum, without duplication, of (i) Consolidated Interest Expense, (ii) consolidated income tax expense for such period, (iii) all amounts attributable to depreciation and amortization for such period, and (iv) other non-cash charges reducing Consolidated Net Income (excluding any such non-cash charge to the extent that it represents an accrual or reserve for a potential cash charge in any future period or amortization of a prepaid cash charge that was paid in a prior period), minus (b) non-cash gains increasing Consolidated Net Income for such period (excluding any such non-cash gain to the extent it represents the reversal of an accrual or reserve for a potential cash gain in any prior period).
“Consolidated Cash Interest Expense” shall mean Consolidated Interest Expense payable in cash (which shall be calculated net of interest income of the Acquiror and its Subsidiaries paid in cash) plus any interest paid-in-kind with respect to the FP Notes, the Convertible Notes, the Bridge Notes and the Notes.
“Consolidated Interest Coverage Ratio” means, for any Test Period, the ratio of (a) Consolidated Adjusted EBITDA for such Test Period to (b) Consolidated Cash Interest Expense for such Test Period.
“Consolidated Interest Expense” shall mean, with respect to any period, total consolidated interest expense (including interest attributable to Capital Leases in accordance with GAAP) of the Note Parties and their Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP, with respect to all outstanding Indebtedness of the Note Parties and their Subsidiaries (including, without limitation, all commissions, discounts and other fees and charges owed by the Note Parties and their Subsidiaries with respect to letters of credit and bankers’ acceptance financing) net of interest income of the Note Parties and their Subsidiaries).
“Consolidated Net Income” shall mean, for any period, the consolidated net income (or loss) of the Note Parties and their Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP; provided, however, that there shall be excluded, without duplication: (a) the income (or loss) of any Person accrued prior to the date it becomes a Subsidiary or is merged into or consolidated with a Note Party or any of its Subsidiaries or that Person’s assets are acquired by a Note Party or any of its Subsidiaries; (b)
\\4165-2766-4210 v2v5
the income (or loss) of any Person that is not a Subsidiary of a Note Party or that is accounted for by the equity method of accounting; provided that Consolidated Net Income shall be increased by the amount of dividends or distributions or other payments that are actually paid in cash or Cash Equivalents (or to the extent subsequently converted into cash or Cash Equivalents) to a Note Party or any of its Subsidiaries by such Person in such period; (c) the undistributed earnings of any Subsidiary of the Note Parties (other than a Note Party) to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary is not at the time permitted by any Contractual Obligation (other than under any Note Document) or Requirement of Law applicable to such Subsidiary; (d) any after-tax effect of any extraordinary, non-recurring or unusual items (including gains or losses and all fees and expenses relating thereto) for such period; (e) all non-cash expenses realized in connection with or resulting from equity or equity-linked compensation plans, employee benefit plans or agreements or post-employment benefit plans or agreements, or grants or sales of stock, stock appreciation, awards under any successor plans of a Note Party or its Subsidiaries’ option or equity plans or similar rights, stock options, restricted stock, preferred stock, stock appreciation or other similar rights; (f) any impairment charge or asset write-off or write-down related to intangible assets (including goodwill), long-lived assets, and investments in debt and equity securities recorded using the equity method, in each case, (i) including as a result of a Change in Law and (ii) pursuant to GAAP; and (g) the cumulative effect of a change in accounting principles and changes as a result of the adoption or modification of accounting policies during such period to the extent included in Consolidated Net Income.
“Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto. Without limiting the generality of the foregoing, a Person shall be deemed to be Controlled by another Person if such other Person possesses, directly or indirectly, power to vote 10% or more of the securities having ordinary voting power for the election of directors, managing general partners or the equivalent.
“Convertible Note Documents” means the Convertible Note Purchase Agreement and all other Note Documents (as such term is defined in the Convertible Note Purchase Agreement), in each case, as amended, restated, amended and restated, supplemented or otherwise modified from time to time.
“Convertible Note Purchase Agreement” means that certain Convertible Note and Warrant Purchase Agreement dated as of the Eighth Amendment Effective Date, by and among the Acquiror, as issuer, the other Note Parties, as guarantors, U.S. Bank Trust Company, National Association, as collateral agent, and Lockheed ▇▇▇▇▇▇ and the other purchasers from time to time party thereto, as amended restated, supplemented or otherwise modified from time to time.
“Convertible Notes” means the senior secured convertible notes in an aggregate original principal amount of $100,000,000 issued pursuant to the Convertible Note Purchase Agreement on the Eighth Amendment Effective Date.
“De Minimis Disposition Proceeds” has the meaning specified in Section 2.07(b)(i).
“Debt Issuance” means the issuance by any Note Party or any Subsidiary of any Indebtedness other than Indebtedness permitted under Section 8.03.
\\4165-2766-4210 v2v5
“Debtor Relief Laws” means the Bankruptcy Code of the United States, 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 or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.
“Default Rate” means an interest rate equal to the sum of (a) the otherwise applicable interest rate at any time pursuant to Section 2.09(a) plus (b) three percent (3.00%) per annum, to the fullest extent permitted by applicable Laws.
“Delayed Draw Warrants” means the warrants to purchase shares of common stock of Acquiror issued pursuant to that certain Stock and Warrant Purchase Agreement, dated as of March 25, 2022, among Acquiror and the purchasers party thereto.
“Deposit Account” means a “deposit account” (as defined in Article 9 of the Uniform Commercial Code), investment account, securities account or other account in which funds are held or invested to or for the credit or account of any Note Party.
“Deposit Account Control Agreement” means any account control agreement by and among a Note Party, the applicable depository bank and the Collateral Agent, in each case in form and substance reasonably satisfactory to the Collateral Agent and the Authorized Representative.
“Designated Jurisdiction” means any country or territory to the extent that such country or territory is the subject of any Sanction.
“De-SPAC Closing Deadline” has the meaning specified in Section 2.09(a).
“De-SPAC Transaction” means the acquisition, merger or other business combination (including the Combination) between the Issuer or any direct or indirect parent company of the Issuer that may be formed) and a “special purpose acquisition company” or similar entity whose shares are registered under Section 12(b) of the Exchange Act and listed on the New York Stock Exchange, the Nasdaq Global Select Market or the Nasdaq Global Market, in each case, the terms of which are substantially similar to the Combination.
“Disclosing Party” has the meaning specified in Section 12.22.
“Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including any Sale and Leaseback Transaction or any issuance by any Subsidiary of its Equity Interests) of any property by any Note Party or any Subsidiary, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith, but excluding the following: (a) the sale, lease, license, transfer or other disposition of inventory in the ordinary course of business, (b) the sale, lease, license, transfer or other disposition in the ordinary course of business of surplus, obsolete or worn out equipment no longer used or useful in the conduct of business of any Note Party and its Subsidiaries, (c) any sale, lease, license, transfer or other disposition of property to any Note Party or any Subsidiary; provided, that, if the transferor of such property is a Note Party, (i) the transferee thereof must be a Note Party or (ii) to the extent such transaction constitutes an Investment, such transaction is permitted under Section 8.02, (d) the abandonment or other disposition of Intellectual Property that are not material and are no longer used or useful in any material respect in the business of the
\\4165-2766-4210 v2v5
Issuer and its Subsidiaries, (e) licenses, sublicenses, leases or subleases (other than any exclusive license or sublicense relating to Intellectual Property) granted to third parties in the ordinary course of business and not interfering with the Businesses, (f) any Involuntary Disposition, (g) dispositions of cash and Cash Equivalents in the ordinary course of business pursuant to transactions permitted hereunder, (h) dispositions consisting of the sale, transfer, assignment or other disposition of unpaid and overdue accounts receivable in connection with the collection, compromise or settlement thereof in the ordinary course of business and not as part of a financing transaction and (i) non-exclusive licenses of over-the-counter software that is commercially available to the public. For the avoidance of doubt, construction, repair, operation and procurement with respect to the Space Florida Project and the receipt of reimbursement from Space Florida in respect thereof shall not constitute a Disposition.
“Disqualification Event” has the meaning specified in Section 6.23(c).
“Disqualified Capital Stock” means any Equity Interest which, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the happening of any event, (a) matures (excluding any maturity as the result of an optional redemption by the issuer thereof) or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof, in whole or in part, prior to the one hundred and eighty-first (181st) day after the Maturity Date, (b) requires the payment of any cash dividends at any time prior to the one hundred and eighty-first (181st) day after the Maturity Date, (c) contains any repurchase obligation which may come into effect prior to payment in full of all Obligations, or (d) is convertible into or exchangeable (unless at the sole option of the issuer thereof) for (i) debt securities or (ii) any Equity Interests referred to in clause (a), (b) or (c) above, in each case at any time prior to the one hundred and eighty-first (181st) day after the Maturity Date; provided that Delayed Draw Warrants, the Convertible Notes and the LM Warrants shall not constitute Disqualified Capital Stock.
“Dollar” and “$” mean lawful money of the United States.
“Earn Out Obligations” means, with respect to an Acquisition, all obligations of the Note Parties or any Subsidiary to make earn out or other contingency payments (including purchase price adjustments, non-competition and consulting agreements, other indemnity obligations, royalty payments and sale, development and other milestone payments) pursuant to the documentation relating to such Acquisition. For purposes of determining the aggregate consideration paid for an Acquisition at the time of such Acquisition, the amount of any Earn Out Obligations shall be deemed to be the maximum amount of the earn-out payments in respect thereof as specified in the documents relating to such Acquisition.
“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.
\\4165-2766-4210 v2v5
“Eighth Amendment” means that certain Eighth Amendment to Note Purchase Agreement, dated as of the Eighth Amendment Effective Date, by and among the Issuer, the Guarantors, the Authorized Representative, and the Collateral Agent.
“Eighth Amendment Effective Date” means October 31, 2022.
“Eligible Assets” means long-term assets that are used or useful in the same or a similar line of business as the Issuer and its Subsidiaries were engaged in on the Closing Date (or any reasonable extension or expansions thereof).
“Enhanced Protection Event” means, (i) at any time prior to the Combination Closing Date, the Merger Agreement has been terminated pursuant to Section 10.01 of the Merger Agreement or (ii) the Combination fails to occur by the later of (x) April 28, 2022 and (y) to the extent extended pursuant to the Merger Agreement to a date no later than May 16, 2022, the Termination Date (as defined in the Merger Agreement as so amended); provided that for purposes of this clause (ii), the parties agree that if the Delayed Draw Purchasers (as defined in the FP Note Purchase Agreement in effect on the Seventh Amendment Effective Date) purchase the Additional Delayed Draw Secured Notes (as defined in the FP Note Purchase Agreement as in effect on the Seventh Amendment Effective Date) even though the Combination has not occurred, then an Enhanced Protection Event has not occurred.
“Environmental Laws” means any and all federal, state, local, foreign and other applicable statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or governmental restrictions relating to pollution and the protection of the environment or the release of any materials into the environment, including those related to hazardous substances or wastes, air emissions and discharges to waste or public systems.
“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Issuer, any other Note Party or any of their respective Subsidiaries directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“Equity Incentive Plan” means the Issuer’s Amended and Restated 2014 Equity Incentive Plan, as may be amended, amended and restated, supplemented or otherwise modified from time to time.
“Equity Interests” means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member, membership or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination; provided, that for the avoidance of doubt, Equity Interests shall be deemed not to include the Convertible Notes.
“Equity Issuance Documents” means the Inducement Warrant Documents, the ▇▇▇▇▇ warrants issued on the Fifth Amendment Effective Date, the Acquiror Closing Warrants (as defined in the Merger
\\4165-2766-4210 v2v5
Agreement), the Stock and Warrant Purchase Agreement in respect of the Acquiror Closing Warrants and the Acquiror Shares, and all other agreements or instruments in connection with the foregoing.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with the Issuer within the meaning of Section 414(b) or (c) of the Internal Revenue Code (and Sections 414(m) and (o) of the Internal Revenue Code for purposes of provisions relating to Section 412 of the Internal Revenue Code).
“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan, (b) the withdrawal of the Issuer or any ERISA Affiliate from a Multiple Employer Plan subject to Section 4063 of ERISA during a plan year in which such entity was a “substantial employer” as defined in Section 4001(a)(2) of ERISA or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA, (c) a complete or partial withdrawal by the Issuer or any ERISA Affiliate from a Multiemployer Plan, (d) the filing of a notice of intent to terminate, the treatment of a Pension Plan amendment as a termination under Sections 4041 or 4041A of ERISA, (e) the institution by the PBGC of proceedings to terminate a Pension Plan, (f) any event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan, (g) the determination that any Pension Plan is considered an at-risk plan or a plan in endangered or critical status within the meaning of Sections 430, 431 and 432 of the Internal Revenue Code or Sections 303, 304 and 305 of ERISA, or (h) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Issuer or any ERISA Affiliate.
“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” has the meaning set forth in Section 9.01.
“Exchange” has the meaning set forth in Section 1.04.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Exchange Notes” means the $34,040,000 original aggregate principal amount of Convertible Promissory Notes issued pursuant to that certain Convertible Note Purchase Agreement dated as of July 23, 2018 by and among the Issuer and the Existing Noteholders.
“Exchange Warrants” has the meaning specified in Section 1.04.
“Excluded Accounts” means (a) deposit accounts established solely for payroll purposes in such amounts as are required to be paid to employees of the Note Parties or any of their Subsidiaries within the immediately succeeding two payroll cycles and (b) deposit accounts the aggregate daily balance in which does not at any time exceed (i) prior to the Combination Closing Date, (A) $10,000 individually and (B) $50,000 in the aggregate and (ii) on or after the Combination Closing Date, (A) $100,000 individually and (B) $1,000,000 in the aggregate.
“Excluded Equity Interests” means (i) any Equity Interests with respect to which, in the reasonable judgment of the Authorized Representative and the Issuer (as agreed to in writing), the cost or other consequences (including material adverse tax consequences) of pledging such Equity Interests in favor of the Secured Parties shall be excessive in view of the benefits to be obtained by the Purchasers therefrom,
\\4165-2766-4210 v2v5
(ii) in the case of any issuer organized under the laws of a jurisdiction other than the laws of any state of the United States or the District of Columbia, any Equity Interests of such issuer to the extent the pledge thereof would violate any applicable Requirements of Law (including any legally effective requirement to obtain the consent of any Governmental Authority unless such consent has been obtained) after giving effect to the applicable anti-assignment provisions of the Uniform Commercial Code of any applicable jurisdiction and other applicable law and (iii) any Equity Interests in any Person that is not a Wholly-Owned Subsidiary, in each case of this clause (iii), to the extent that and only for so long as a pledge thereof to secure the Obligations is prohibited by any applicable Contractual Obligation (and other than proceeds thereof the assignment of which is expressly deemed effective under the Uniform Commercial Code or other applicable law notwithstanding such prohibition or restriction) then in effect permitted by this Agreement and binding on such Equity Interests, requires the consent of any other party to any such Contractual Obligation (other than a Note Party or an Affiliate of a Note Party) that has not been obtained (it being understood that the foregoing shall not be deemed to obligate any Note Party or any Subsidiary to obtain any such consent) or would give any other party to any such Contractual Obligation (other than a Note Party or an Affiliate of a Note Party) the right to terminate its obligations thereunder, except, in each case of this clause (iii) to the extent any such prohibition, restriction, requirement or other limitation on the pledge of such Equity Interests is rendered ineffective by Section 9-406 or 9-408 of the Uniform Commercial Code or other applicable law and, in any event, excluding the proceeds of any such Equity Interests or Cash Equivalents the assignment of which is expressly deemed effective under the Uniform Commercial Code or other applicable law notwithstanding such prohibition, restriction, requirement or other limitation that do not themselves constitute Excluded Equity Interests; provided, however, that Excluded Equity Interests shall not include any Proceeds, substitutions or replacements of any assets referred to in the foregoing (unless such Proceeds, substitutions or replacements would constitute assets referred to in clauses (i) through (iii) above).
“Excluded Property” means, with respect to any Note Party, including any Person that becomes a Note Party after the Closing Date as contemplated by Section 7.12, (a) any property which, subject to the terms of Section 8.09, is subject to a Lien of the type described in Section 8.01(i) pursuant to documents which prohibit such Note Party from granting any other Liens in such property, (b) any United States intent-to-use trademark applications to the extent that, and solely during the period in which, the grant of a security interest therein would impair the validity or enforceability of such intent-to-use trademark applications under applicable federal law; provided, that, upon submission and acceptance by the United States Patent and Trademark Office of an amendment to allege use pursuant to 15 U.S.C. Section 1060(a) (or any successor provision), such intent-to-use trademark application shall no longer constitute “Excluded Property” and shall be considered Collateral, (c) any general intangible, permit, lease, license, contract or other instrument of a Note Party if the grant of a security interest in such general intangible, permit, lease, license, contract or other instrument in the manner contemplated by the Collateral Documents, under the terms thereof or under applicable Law, is prohibited and would result in the termination thereof or give the other parties thereto the right to terminate, accelerate or otherwise alter such Note Party’s rights, titles and interests thereunder (including upon the giving of notice or lapse of time or both); provided, that, (x) any such limitation described in this clause (c) on the security interests granted under the Collateral Documents shall only apply to the extent that any such prohibition would not be rendered ineffective pursuant to the Uniform Commercial Code or any other applicable Law or principles of equity and (y) in the event of the termination or elimination of any such prohibition or the requirement for any consent contained in any applicable Law, general intangible, permit, lease, license, contract or other instrument, to the extent sufficient to permit any such item to become Collateral, a security interest in such general intangible, permit, lease, license, contract or other instrument shall be automatically and simultaneously granted under the applicable Collateral Document and such general intangible, permit, lease, license, contract or other instrument shall no longer constitute “Excluded Property” and shall be considered Collateral, (d) any vehicles, aircraft, aircraft engines and other assets subject to certificates of title, except to the extent
\\4165-2766-4210 v2v5
perfected by filing a financing statement in the appropriate form in the applicable jurisdiction under the Uniform Commercial Code or without any perfection steps, (e) any asset with respect to which the Authorized Representative has confirmed in writing to the Issuer its determination that the costs or other consequences (including adverse tax consequences) of providing a security interest in is excessive in view of the benefits to be obtained by the Purchasers, (f) any asset or property to the extent and for so long as the grant of a security interest in such asset or property in favor of the Collateral Agent would be prohibited by applicable requirement of Law or regulation or would require the consent of any Governmental Authority after giving effect to the anti-assignment provisions of the Uniform Commercial Code of any relevant jurisdiction and other applicable law, and (g) all Excluded Equity Interests.
“Existing Indebtedness” means all Indebtedness for borrowed money of the Note Parties in existence immediately prior to the Closing Date.
“Existing Noteholders” means BPC Lending II LLC, Astrolink International, LLC and Broad Street Principal Investments, L.L.C.
“Extraordinary Receipts” means any cash or Cash Equivalents actually received by or paid to or for the account of any Person not in the ordinary course of business, including tax refunds, pension plan reversions, proceeds of insurance, condemnation awards (and payments in lieu thereof) (other than Net Cash Proceeds of any Involuntary Disposition) and indemnity payments.
“FATCA” means Sections 1471 through 1474 of the Internal Revenue Code as of the Closing Date (or any amended or successor version that is substantively comparable and not materially more onerous to comply with) and any current or future regulations thereunder, official interpretations thereof, any agreement entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code and any treaty, law, regulation or intergovernmental agreements entered into (which facilitates the implementation of any law or regulation) thereunder.
“Fifth Amendment Effective Date” means November 24, 2021.
“First Lien Intercreditor Agreement” means that certain Amended and Restated Super-Priority First Lien Intercreditor Agreement dated as of November 24, 2021the Ninth Amendment Effective Date, among the Issuer, the other Note Parties, the Collateral Agent, Wilmington Savings Fund Society, FSB, as FP Notes Collateral Agent for the FP Notes Secured Parties (each as defined therein), Wilmington Savings Fund Society, FSB, as Bridge Notes Collateral Agent for the Bridge Notes Secured Parties (each as defined therein), and each additional agent from time to time party thereto, as amended, restated, supplemented or otherwise modified from time to time.
“First Lien/Second Lien Intercreditor Agreement” means that certain Amended and Restated First Lien/Second Lien Intercreditor Agreement dated as of the EighthNinth Amendment Effective Date, by and among the Note Parties, the Collateral Agent, Wilmington Savings Fund Society, FSB, as collateral agent for the FP Notes Secured Parties (as defined therein), Wilmington Savings Fund Society, FSB, as collateral agent for the Bridge Notes Secured Parties (as defined therein), and U.S. Bank Trust Company, National Association, as collateral agent for the Second Lien Secured Parties (as defined therein), as amended, restated, supplemented or otherwise modified from time to time.
“Flood Hazard Property” has the meaning specified in the definition of Real Estate Security Documents.
\\4165-2766-4210 v2v5
“FP” means FP Credit Partners, L.P., and certain of its managed funds, affiliates, financing parties or investment vehicles.
“FP Notes” means (i) the initial senior secured notes in an aggregate original principal amount of $30,000,000 issued pursuant to the FP Note Purchase Agreement on the Fifth Amendment Effective Date, (ii) the delayed draw senior secured notes in an aggregate original principal amount of $24,000,000 issued pursuant to the FP Note Purchase Agreement on the Sixth Amendment Effective Date, and (iii) the additional delayed draw senior secured notes in an aggregate original principal amount of $65,000,000 issued pursuant to the FP Note Purchase Agreement on the Combination Closing Date.
“FP Note Documents” means the FP Note Purchase Agreement and all other Note Documents (as such term is defined in the FP Note Purchase Agreement), in each case, as amended, restated, amended and restated, supplemented or otherwise modified from time to time in a manner permitted by Section 8.12.
“FP Note Purchase Agreement” means that certain Note Purchase Agreement, dated as of November 24, 2021, by and among the Issuer, the other Note Parties, Wilmington Savings Fund Society, FSB, as administrative agent and collateral agent, and FP and the other purchasers from time to time party thereto, as amended by that certain Amendment No. 1 to Note Purchase Agreement, dated as of March 9, 2022, that certain Amendment No. 2 to Note Purchase Agreement, dated as of March 25, 2022 and, that certain Amendment No. 3 to Note Purchase Agreement, dated as of the Eighth Amendment Effective Date, and that certain Amendment No. 4 to Note Purchase Agreement, dated as of the Ninth Amendment Effective Date, as amended restated, supplemented or otherwise modified from time to time in a manner permitted by Section 8.12.
“FRB” means the Board of Governors of the Federal Reserve System of the United States.
“Fund” means any Person (other than a natural Person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in notes, loans and/or similar extensions of credit in the ordinary course of its activities.
“Funded Indebtedness” means, as of any date, all Indebtedness of such Person of the types described in clauses (a) through (c), (e), (f) and (k) and, solely with respect to letters of credit, bankers’ acceptances and similar instruments that have been drawn but not yet reimbursed, clause (d) of the definition of “Indebtedness”, to the extent reflected as a liability on the balance sheet of such Person in accordance with GAAP; provided that Funded Indebtedness shall be deemed not to include the ▇▇▇▇▇▇ Payment Obligations, the Convertible Notes, the Notes or the FP Notes (including, with respect to the Convertible Notes, the Notes and the FP Notes, any interest paid-in-kind in respect thereof).
“GAAP” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board, consistently applied and as in effect from time to time.
“Governmental Authority” means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).
\\4165-2766-4210 v2v5
“Government Contract” means each contract between the Issuer or any of its Subsidiaries and any governmental entity and each Bid with respect to Government Contracts.
“Government Subcontract” means each contract between the Issuer or any of its Subsidiaries and any prime contractor or upper-tier subcontractor relating to a contract between such Person and any governmental entity, and each Bid with respect to Government Subcontracts.
“Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.
“Guarantors” means (a) each Subsidiary of the Issuer identified as a “Guarantor” on the signature pages hereto and (b) each other Person that joins as a Guarantor pursuant to Section 7.12 or Section 7.20(b) of this Agreement (and “Guarantor” shall mean, as the context may require, each of them individually), together with their successors and permitted assigns. As of the Closing Date, the Guarantors are Tyvak Nano-Satellite Systems, Inc. and PredaSAR Corporation.
“Guaranty” means the Guaranty made by the Guarantors in favor of the Secured Parties pursuant to Article IV.
“Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.
“Increase Date” has the meaning specified in Section 2.09(a).
“Indebtedness” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:
\\4165-2766-4210 v2v5
provided that notwithstanding the foregoing, Indebtedness shall be deemed not to include (1) prepaid or deferred revenue arising in the ordinary course of business, (2) purchase price holdbacks arising in the ordinary course of business in respect of a portion of the purchase price of an asset to satisfy warrants or other unperformed obligations of the seller of such asset (excluding, for the avoidance of doubt, Earn Out Obligations), (3) any obligations attributable to the exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto, or (4) asset retirement
\\4165-2766-4210 v2v5
obligations and obligations in respect of workers’ compensation (including pensions and retiree medical care) that are not overdue by more than sixty (60) days.
For purposes hereof, the amount of any direct obligation arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments shall be the maximum amount available to be drawn thereunder.
“Indemnitee” has the meaning set forth in Section 12.04(b).
“Inducement Warrants” means the “Warrants” as defined in the Inducement Warrant Documents.
“Inducement Warrant Documents” means that certain Warrant Purchase Agreement, dated as of the Closing Date, among the Issuer and the purchasers party thereto, the Inducement Warrants issued pursuant thereto and all other agreements in connection therewith.
“Information” has the meaning set forth in Section 12.07.
“Intellectual Property” means all right, title and interests throughout the world in and to: (i) all rights relating to the protection of inventions, including patents and patent applications; (ii) works of authorship, copyrightable works, registered and unregistered copyrights, authors’ rights, moral rights, and registrations and applications for registration thereof; (iii) all rights in registered and unregistered trademarks, service marks, trade names, corporate names, logos, trade dress, designs, packaging, domain names, and registrations and applications for registration thereof (“Trademarks”), together with all goodwill associated with any of the foregoing; (iv) mask works and registrations and applications for registration thereof; (v) computer software, including source code, object code, firmware, algorithms and databases; (vi) trade secrets, know-how and proprietary information, including, without limitation, technical data, customer lists, formulae, methods, processes, research and development information, inventions, discoveries, designs, drawings, databases, specifications, and all derivatives and improvements thereof; (vii) all actions and rights to sue at law or in equity for past, present or future infringement or other impairment of any of the foregoing, including the right to receive all proceeds and damages therefrom; (viii) all rights to obtain renewals, reissues, reexaminations, continuations, continuations-in-part, divisions or other extensions of legal protections pertaining thereto; and (ix) any right, in any jurisdiction, analogous to those set forth herein.
“Intellectual Property Licenses” has the meaning specified in Section 6.17(c).
“Intended Tax Treatment (Cashless Exercise)” has the meaning specified in Section 1.04(c).
“Intended Tax Treatment (Exchange)” has the meaning specified in Section 1.04(b).
“Interest Payment Date” has the meaning specified in Section 2.09(c)(i).
“Interim Financial Statements” means the unaudited consolidated financial statements of the Issuer and its Subsidiaries for the fiscal quarters ended March 31, 2020, June 30, 2020 and September 30, 2020, including balance sheets and statements of income or operations, shareholders’ equity and cash flows.
“Internal Revenue Code” means the United States Internal Revenue Code of 1986.
“Internal Revenue Service” means the United States Internal Revenue Service.
\\4165-2766-4210 v2v5
“Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of Equity Interests of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person and any arrangement pursuant to which the investor Guarantees Indebtedness of such other Person, or (c) an Acquisition. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment.
“Involuntary Disposition” means any loss of, damage to or destruction of, or any condemnation or other taking for public use of, any property of any Note Party or any of their Subsidiaries.
“IP Security Agreement” means notices of grant of security interest in the form required by the Security Agreement executed and delivered by a Note Party.
“Issuer” has the meaning assigned to such term in the preamble hereto.
“Issuer Covered Person” means, with respect to the Issuer as an “issuer” for purposes of Rule 506 promulgated under the Securities Act, any Person listed in the first paragraph of Rule 506(d)(1) and, after the Combination Closing Date, the Acquiror.
“Joinder Agreement” means a joinder agreement substantially in the form of Exhibit D executed and delivered by a Subsidiary in accordance with the provisions of Section 7.12.
“Junior Debt Restricted Payment” has the meaning specified in Section 8.11.
“Key Employee” means any executive-level employee (including, division director and vice president-level positions) as well as any employee who, either alone or in concert with others, develops, invents, programs, or designs any material Note Party Intellectual Property.
“Laws” means, collectively, all international, foreign, federal, state and local statutes, treaties, rules, binding guidelines, regulations, ordinances, codes and binding administrative or judicial precedents or authorities, including any binding interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.
“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any financing lease having substantially the same economic effect as any of the foregoing).
“LM Notes” means the Notes held by Lockheed ▇▇▇▇▇▇ on the Seventh Amendment Effective Date and thereafter held by Lockheed ▇▇▇▇▇▇ and its successors and assigns.
“LM Transaction Support Agreement” means that certain Transaction Support Agreement, dated as of October 28, 2021, by and among Acquiror, the Issuer and Lockheed ▇▇▇▇▇▇, as amended by that certain Amendment to Transaction Support Agreement, dated as of March 25, 2022.
\\4165-2766-4210 v2v5
“LM Warrants” means the “Warrants” as defined in, and issued pursuant to, the Convertible Note Purchase Agreement.
“Master Agreement” has the meaning specified in the definition of Swap Contract.
“Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect upon, the business, assets, properties, liabilities (actual or contingent), or condition (financial or otherwise) of the Note Parties and their Subsidiaries taken as a whole, (b) a material impairment of the rights and remedies of the Collateral Agent or any Purchaser under any Note Document to which it is a party or a material impairment in the perfection, value or priority of the Collateral Agent’s security interests in the Collateral, (c) a material impairment of the ability of the Note Parties, taken as a whole, to perform their obligations under any Note Document to which it is a party, or (d) a material adverse effect upon the legality, validity, binding effect or enforceability against any Note Party of any Note Document to which it is a party.
“Material Contracts” means (i) those agreements listed on Schedule 6.24(a), (ii) after the Closing Date, any contract, agreement, license or other Contractual Obligation that, at any time of determination, is anticipated to contribute more than (x) prior to the Combination Closing Date, $1,000,000 of revenue on an annual basis or require payment of more than $1,000,000 in any year and (y) on or after the Combination Closing Date, $5,000,000 of revenue on an annual basis or require payment of more than $5,000,000 in any year and (iii) any other agreements, instruments, license or other Contractual Obligation to which any Note Party or any Subsidiary is a party, and the breach, nonperformance or cancellation of which, or the failure of which to renew, could reasonably be expected to have a Material Adverse Effect. The Strategic Cooperation Agreement shall not constitute a “Material Contract”.
“Material Indebtedness” means Indebtedness having an aggregate principal amount (including undrawn committed or available amounts and including amounts owing to all creditors under any combined or syndicated credit arrangement) of more than the Threshold Amount.
“Maturity Date” means the earliest to occur of (a) April 1, 2026, or (b) with respect to (i) all Notes (other than the LM Notes) and (ii) at the election of Lockheed ▇▇▇▇▇▇, the LM Notes, the date that the Closing (as defined in the Acquisition Agreement) occurs or (c) if earlier, such earlier date on which the Notes are accelerated in whole pursuant to Section 9.02 hereof; provided, that, if such date is not a Business Day, the Maturity Date shall be the first Business Day immediately succeeding such date.
“Maximum Rate” has the meaning set forth in Section 12.09.
“Merger Agreement” means that certain Agreement and Plan of Merger dated as of October 28, 2021 among Acquiror, Merger Sub and the Issuer, as in effect on the date hereof.
“Merger Sub” has the meaning assigned to such term in the preamble hereto.
“▇▇▇▇▇’▇” means ▇▇▇▇▇’▇ Investors Service, Inc. and any successor thereto.
“Mortgages” means the mortgages, deeds of trust or deeds to secure debt that purport to grant to the Collateral Agent, for the benefit of the Purchasers, a security interest in the fee interest of any Note Party in real property located in the U.S. (other than Excluded Property).
\\4165-2766-4210 v2v5
“Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which the Issuer or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.
“Multiple Employer Plan” means a Pension Plan which has two or more contributing sponsors (including the Issuer or any ERISA Affiliate) at least two of whom are not under common control, as such a plan is described in Section 4064 of ERISA.
“Net Cash Proceeds” means the aggregate cash or Cash Equivalents actually received by any Note Party or any Subsidiary in respect of any Disposition, Debt Issuance, Involuntary Disposition or Extraordinary Receipts, net of (a) reasonable direct costs incurred in connection therewith (including, without limitation, legal, accounting and investment banking fees, and sales commissions), (b) taxes (including in connection with a repatriation of funds) paid or payable as a result thereof, (c) in the case of any Disposition or Involuntary Disposition, the amount necessary to retire any Indebtedness secured by a Permitted Lien (ranking senior to any Lien of the Collateral Agent) on the related property, (d) in the case of any Extraordinary Receipt, (i) reasonable direct costs incurred in connection with the collection of such proceeds, awards or other payments and (ii) so long as no Default or Event of Default exists, insurance and condemnation proceeds that are applied to the repair or replacement of the applicable property within 90 days after receipt thereof; it being understood that “Net Cash Proceeds” shall include, without limitation, any cash or Cash Equivalents received upon the sale or other disposition of any non-cash consideration received by any Note Party or any Subsidiary in any Disposition, Debt Issuance, Involuntary Disposition or Extraordinary Receipt, (e) the amount of any reasonable reserve established in accordance with GAAP against any liabilities (other than any taxes deducted pursuant to clause (b) above) (1) associated with the assets that are the subject of such prepayment event and (2) retained by Note Parties or any of their Subsidiaries; provided that the amount of any subsequent reduction of such reserve (other than in connection with a payment in respect of any such liability) shall be deemed to be Net Cash Proceeds of such a prepayment event occurring on the date of such reduction, (f) in the case of any Disposition, Debt Issuance, Involuntary Disposition or Extraordinary Receipts, by a non-Wholly-Owned Subsidiary, the pro rata portion of the Net Cash Proceeds thereof (calculated without regard to this clause (f)) attributable to non-controlling interests and not available for distribution to or for the account of a Note Party or a Wholly-Owned Subsidiary as a result thereof and (g) in the case of any Disposition, any funded escrow established pursuant to the documents evidencing any such sale or disposition to secure any indemnification obligations or adjustments to the purchase price associated with any such sale or disposition; provided that the amount of any subsequent reduction of such escrow (other than in connection with a payment in respect of any such liability) shall be deemed to be Net Cash Proceeds of such a Disposition occurring on the date of such reduction solely to the extent that any Note Party or any of its Subsidiaries receives cash in an amount equal to the amount of such reduction.
“Ninth Amendment” means that certain Ninth Amendment to Note Purchase Agreement, dated as of the Ninth Amendment Effective Date, by and among the Acquiror, as issuer, the other Note Parties, as guarantors, the Authorized Representative, and the Purchasers party thereto.
“Ninth Amendment Effective Date” means August 15, 2024.
“Non-U.S. Subsidiary” means any Subsidiary that is not a U.S. Subsidiary.
“Note” or “Notes” has the meaning set forth in Section 2.01.
“Note Documents” this Agreement, the First Amendment to Note Purchase Agreement dated as of April 30, 2021, the Second Amendment to Note Purchase Agreement dated as of May 21, 2021, the Third
\\4165-2766-4210 v2v5
Amendment to Note Purchase Agreement dated as of June 7, 2021, the Fourth Amendment to Note Purchase Agreement dated as of October 28, 2021, the Fifth Amendment to Note Purchase Agreement dated as of November 24, 2021, the Sixth Amendment to Note Purchase Agreement dated as of March 9, 2022, the Seventh Amendment, the Eighth Amendment, the Ninth Amendment, each Note, each Joinder Agreement, the Collateral Documents, the Collateral Agency, the Intercreditor Agreement, the First Lien Intercreditor Agreement and the First Lien/Second Lien Intercreditor Agreement.
“Note Parties” means, collectively, the Issuer and each Guarantor.
“Note Party Intellectual Property” means all Intellectual Property (including Registered Intellectual Property) owned, controlled, used or held for use by any Note Party or Subsidiary in connection with the operation of the business of the Note Parties and their Subsidiaries as now conducted and as currently proposed to be conducted.
“OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury.
“Obligations” means (a) all advances to, and debts, liabilities, obligations, covenants and duties of, any Note Party arising under any Note Document or otherwise with respect to any Note (including any PIK Interest and any PIK Interest - BP) and (b) all costs and expenses incurred in connection with enforcement and collection of the foregoing, including the fees, charges and disbursements of counsel, in each case, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Note Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.
“Organization Documents” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws, (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement, and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization, including in each case of the foregoing the equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction, and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.
“Participant” has the meaning set forth in Section 12.06(h).
“Participant Register” has the meaning specified in Section 12.06(h).
“PATRIOT Act” means the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)).
“PBGC” means the Pension Benefit Guaranty Corporation or any successor thereto.
“Pension Funding Rules” means the rules of the Internal Revenue Code and ERISA regarding minimum required contributions (including any installment payment thereof) to Pension Plans and set forth in Section 412, 430, 431, 432 and 436 of the Internal Revenue Code and Sections 302, 303, 304 and 305 of ERISA.
\\4165-2766-4210 v2v5
“Pension Plan” means any employee pension benefit plan (including a Multiple Employer Plan or a Multiemployer Plan) that is maintained or is contributed to by the Issuer or any ERISA Affiliate and that is either covered by Title IV of ERISA or is subject to minimum funding standards under Section 412 of the Internal Revenue Code.
“Perfection and Due Diligence Certificate” means that certain Perfection and Due Diligence Certificate dated as of the Closing Date and, in respect of the Acquiror, on the date required pursuant to Section 7.20(b), executed by the applicable Note Parties and certified to the Secured Parties, as amended or modified from time to time in accordance with the terms hereof.
“Permitted Acquisition” means any acquisition by the Acquiror or any Subsidiary, whether by purchase, merger, amalgamating, consolidation or otherwise, of all or substantially all of the assets of, or any business line, unit or division of, any Person or of a majority of the outstanding Equity Interests of any Person, and all Investments undertaken to consummate such acquisition transaction; provided that:
(a) such acquisition is not a hostile or contested acquisition;
(b) such assets, business line, unit, division or Person, as applicable shall be in a business permitted by Section 8.07 hereof;
(c) after giving pro forma effect to such Acquisition, the Issuer shall be in compliance with the financial covenants set forth in Section 8.17 as of the last day of the most recently ended fiscal quarter as if such transaction had occurred on such day;
(d) (1) such Person becomes a Subsidiary; or (2) such Person, assets, line of business, unit or division, in each case, in one transaction or a series of related transactions, is merged, consolidated, or amalgamated with or into, or transfers or conveys substantially all of its assets to (or is acquired by) or is liquidated into a Subsidiary;
(e) the total consideration, including maximum potential total amount of all deferred payment obligations (including earn-outs and consideration paid in Qualified Capital Stock of the Acquiror) and Indebtedness permitted by Section 8.03 assumed or incurred for all Permitted Acquisitions during the term of this Agreement shall not exceed $50,000,000 (the “Permitted Acquisition Cap”); provided that the total consideration paid in cash or Indebtedness assumed for all such Permitted Acquisitions during the term of this Agreement shall not exceed $25,000,000; provided further, that no Equity Interests constituting all or a portion of such acquisition consideration shall require any payments or other distributions of cash or property in respect thereof, or any purchases, redemptions or other acquisitions thereof for cash or property, in each case prior to the 91st day following the date that all Obligations (other than contingent indemnification obligations for which no claim has been asserted) have been paid in full;
(f) all actions required to be taken with respect to any such newly created or acquired Person or assets, in each case as applicable in order to satisfy the requirements of Sections 7.12 and 7.14, to the extent required, shall have been taken (or arrangements for the taking of such actions after the consummation of the Permitted Acquisition shall have been made);
(g) the aggregate amount of Investments made by Note Parties in Persons that do not become (or that are not amalgamated, merged or consolidated with or into, or substantially all of the assets or assets constituting a business unit, a line of business or a division of which are not transferred or conveyed to, or are not liquidated into) Note Parties pursuant to Permitted Acquisitions shall not exceed $5,000,000;
\\4165-2766-4210 v2v5
(h) no Default or Event of Default shall have occurred and be continuing or would result from the execution of such agreement and the consummation of such acquisition;
(i) at least five Business Days prior to the proposed date of the consummation of such acquisition (or such shorter period as is acceptable to the Authorized Representative in its sole discretion), the Issuer shall have delivered to the Authorized Representative and the Purchasers a certificate of a Responsible Officer of the Issuer certifying that such acquisition complies with this definition (which certificate shall have attached thereto reasonably detailed backup data and calculations demonstrating such compliance);
(j) all transactions in connection therewith shall be consummated, in all material respects, in accordance with all applicable Requirements of Law; and
(k) no Note Party or any of its Subsidiaries shall, in connection with any such transaction, assume or remain liable with respect to any Indebtedness or contingent obligation (including any material tax or ERISA liability) of the related seller or the assets, business line, unit, division or Person acquired, except to the extent permitted to be incurred under Section 8.03.
“Permitted Acquisition Cap” has the meaning specified in the definition of Permitted Acquisition.
“Permitted Liens” means, at any time, Liens in respect of property of any Note Party or any of its Subsidiaries permitted to exist at such time pursuant to the terms of Section 8.01.
“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
“Personal Information” has the meaning specified in Section 6.25(b).
“PIK Election” has the meaning specified in Section 2.09(c)(i).
“PIK Interest” means, as of any date of determination, the interest that has been paid in kind and added to the principal balance of the Notes in accordance with Section 2.09(c)(i) on or prior to such date of determination.
“PIK Interest - BP” means, as of any date of determination, the interest that has been paid in kind and added to the principal balance of the BP Notes in accordance with Section 2.09(c)(ii) on or prior to such date of determination.
“Plan” means any employee benefit plan within the meaning of Section 3(3) of ERISA, maintained for employees of the Issuer or any of its Subsidiaries or any such Plan to which the Issuer or any of its Subsidiaries is required to contribute on behalf of any of its employees or otherwise has any liability.
“Pledge Agreement” means the pledge agreement dated as of the Closing Date executed in favor of the Collateral Agent, for the benefit of the Secured Parties, by each of the Note Parties, as amended or modified from time to time in accordance with the terms hereof.
“Post-Combination Interest Payment Date” has the meaning specified in Section 2.09(c)(ii).
“Purchaser” or “Purchasers” means each Person that has executed and delivered this Agreement as a “Purchaser” and such Person’s successors and assigns
\\4165-2766-4210 v2v5
“Qualified Capital Stock” of any Person means any Equity Interests of such Person that are not Disqualified Capital Stock.
“Qualified Public Company Event” means: (1) the issuance and sale by the Issuer or any direct or indirect parent company of the Issuer of its common Equity Interests (and the contribution of any proceeds of such issuance to the Issuer) in an underwritten primary public offering (other than a public offering pursuant to a registration statement on Form S-8) pursuant to an effective registration statement (whether alone or in connection with a secondary public offering) filed with the U.S. Securities and Exchange Commission (or any Governmental Authority succeeding to any of its principal functions) in accordance with the Securities Act and such Equity Interests are listed on a nationally-recognized stock exchange in the United States of America pursuant to which net proceeds of at least $150,000,000 are received by the Issuer or such parent company and contributed to the Issuer; or (2) any De-SPAC Transaction.
“Real Estate Security Documents” means with respect to the fee interest of any Note Party in any real property located in the U.S.:
\\4165-2766-4210 v2v5
“Recipient” means any Purchaser and any other recipient of any payment by or on account of any obligation of any Note Party under any Note Document.
“Registered Intellectual Property” has the meaning specified in Section 6.17(b).
“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors, sub-advisors and representatives of such Person and of such Person’s Affiliates.
“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the thirty-day notice period has been waived.
“Required Majority Purchasers” means, as of any date, the Purchasers holding a majority of the aggregate principal amount of the Notes outstanding on such date; provided, that any Notes held by the Issuer or any of its Subsidiaries shall be excluded; provided, further, that at any time when there are two (2) or more unaffiliated Purchasers, Required Majority Purchasers must include at least two (2) unaffiliated Purchasers; provided, further, if pursuant to the BP Subordination Agreement BPC Lending II LLC is prohibited from exercising any rights or remedies available to it, or from agreeing or consenting to any action requiring its approval, in each case, under the Note Documents or applicable law, after the occurrence and during the continuation of any Event of Default, Lockheed ▇▇▇▇▇▇’▇ consent shall constitute Required Majority Purchasers for purposes of exercising rights and remedies or agreeing or consenting to any action, in each case, under the Note Documents or applicable law. For purposes of determining the number of unaffiliated Purchasers under this definition, a Purchaser and any other Purchasers that are Affiliates or Approved Funds of such Purchaser shall be counted as a single Purchaser.
“Required Purchasers” means, as of any date, the Purchasers holding at least 70% of the aggregate principal amount of the Notes outstanding on such date; provided, that any Notes held by the Issuer or any of its Subsidiaries shall be excluded; provided, further, that at any time when there are two (2) or more unaffiliated Purchasers, Required Purchasers must include at least two (2) unaffiliated Purchasers; provided, further, if pursuant to the BP Subordination Agreement BPC Lending II LLC is prohibited from exercising any rights or remedies available to it, or from agreeing or consenting to any action requiring its
\\4165-2766-4210 v2v5
approval, in each case, under the Note Documents or applicable law, after the occurrence and during the continuation of any Event of Default, Lockheed ▇▇▇▇▇▇’▇ consent shall constitute Required Purchasers for purposes of exercising rights and remedies or agreeing or consenting to any action, in each case, under the Note Documents or applicable law. For purposes of determining the number of unaffiliated Purchasers under this definition, a Purchaser and any other Purchasers that are Affiliates or Approved Funds of such Purchaser shall be counted as a single Purchaser.
“Requirement of Law” shall mean, as to any Person, such Person’s Organization Documents, and any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer” means the chief executive officer, president, chief financial officer, chief operating officer, chief legal officer, general counsel, treasurer, assistant treasurer, secretary, executive chairman or vice president of finance of a Note Party and, solely for purposes of the delivery of certificates pursuant to Sections 5.01 or 7.12(b), the secretary or any assistant secretary of a Note Party. Any document delivered hereunder that is signed by a Responsible Officer of a Note Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Note Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Note Party.
“S&P” means Standard & Poor’s Ratings Services or any successor by merger or consolidation to its business.
“Sale and Leaseback Transaction” means, with respect to any Note Party or any Subsidiary, any arrangement, directly or indirectly, with any Person whereby the Note Party or such Subsidiary shall sell or transfer any property used or useful in its business, whether now owned or hereafter acquired, and thereafter rent or lease such property or other property that it intends to use for substantially the same purpose or purposes as the property being sold or transferred.
“Sale Documentation” means a sale, purchase, merger or similar agreement entered into in anticipation of a potential De-SPAC Transaction.
\\4165-2766-4210 v2v5
“Sanction(s)” means any sanction administered or enforced by the United States government (including, without limitation, OFAC), the United Nations Security Council, the European Union, Her Majesty’s Treasury (“HMT”) or other relevant sanctions authority of the United States, United Nations, European Union or United Kingdom.
“SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
“Secured Parties” means (a) each Purchaser, (b) the Authorized Representative and (c) the permitted successors and assigns of each of the foregoing.
“Securities Act” means the Securities Act of 1933.
“Securitization Transaction” means, with respect to any Person, any financing transaction or series of financing transactions (including factoring arrangements) pursuant to which such Person or any Subsidiary of such Person may sell, convey or otherwise transfer, or grant a security interest in, accounts, payments, receivables, rights to future lease payments or residuals or similar rights to payment to a special purpose subsidiary or affiliate of such Person.
“Security Agreement” means the security agreement dated as of the Closing Date executed in favor of the Collateral Agent, for the benefit of the Secured Parties, by each of the Note Parties, as amended or modified from time to time in accordance with the terms thereof.
“Seventh Amendment” means that certain Seventh Amendment to Note Purchase Agreement, dated as of March 25, 2022, by and among the Issuer, the Guarantors, the Authorized Representative, the Purchasers party thereto and the Exiting Purchasers (as defined therein).
“Series A Preferred Stock” means the Issuer’s Series A Preferred Stock. $0.0001 par value per share.
“Services Agreement” means that certain Services Agreement, dated as of February 25, 2021, by and between Beach Point Capital Management LP and the Issuer.
“Seventh Amendment Effective Date” means March 25, 2022.
“Sixth Amendment Effective Date” means March 9, 2022.
“Solvent” or “Solvency” means, with respect to any Person as of a particular date, that on such date (a) such Person is able to pay its debts and other liabilities, contingent obligations and other commitments as they mature in the ordinary course of business, (b) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay as such debts and liabilities mature in their ordinary course, (c) such Person is not engaged in a business or a transaction, and is not about to engage in a business or a transaction, for which such Person’s property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which such Person is engaged or is to engage, (d) the fair value of the property of such Person is greater than the total amount of liabilities, including, without limitation, contingent liabilities, of such Person and (e) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured. In computing the amount of contingent liabilities at any time, it is intended that such liabilities will be computed at the amount which,
\\4165-2766-4210 v2v5
in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
“Space Florida” means the Governmental Authority known as “Space Florida”, which was created pursuant to Chapter 331, Part II, Florida Statutes, as an independent special district and a subdivision of the State of Florida.
“Space Florida Project” means the production facility expected to be leased, developed, constructed, equipped and operated by the Issuer or the Space Florida Subsidiary, and the business operations thereon, on one or more sites of Space Florida or a related party with respect to spacecraft and constellation development and manufacturing.
“Space Florida Subsidiary” means a Subsidiary of the Issuer to be formed after the Closing Date solely for purposes of leasing, equipping, construction, developing and operating of the Space Florida Project.
“▇▇▇▇▇▇” means ▇▇▇▇▇▇ Orbital Family Limited Partnership and its Affiliates.
“▇▇▇▇▇▇ Payment Obligations” means the Issuer’s obligations to Staton in connection with any PIPE investment made by such entities as set forth in the ▇▇▇▇▇▇ Subscription Agreement (as in effect on the Ninth Amendment Effective Date and without giving effect to any amendments or modifications thereto in any manner adverse to the interests of the Purchasers) between the Issuer and ▇▇▇▇▇▇, in an amount equal to $30,000,000 to be paid in sixteen quarterly installments, in which the first four quarterly installments of $1,875,000 during the first twelve months following the Combination Closing Date have been in cash and the remaining quarterly installments thereafter shall be paid, at the Issuer’s election, (x) in the common stock of the Issuer or (y) in cash (provided that, for the avoidance of doubt, nothing herein shall prevent the ▇▇▇▇▇▇ Payment Obligations from being paid in the form of common stock in accordance with the terms of the ▇▇▇▇▇▇ Subscription Agreement).
“▇▇▇▇▇▇ Subordination Agreement” means a subordination agreement in form and substance reasonably satisfactory to the Purchasers pursuant to which the ▇▇▇▇▇▇ Payment Obligations are subordinated to all Obligations.
“Staton Cash Obligations” has the meaning specified in Section 8.11.
“▇▇▇▇▇▇ Payment Obligations” has the meaning specified in Section 8.11.
“▇▇▇▇▇▇ Subscription Agreement” means the Subscription Agreement dated as of October 28, 2021 between ▇▇▇▇▇▇ and the Acquiror, as amended by that certain First Amendment to Subscription Agreement dated as of the Ninth Amendment Effective Date.
“Strategic Cooperation Agreement” means the 2022 Strategic Cooperation Agreement, dated as of the Eighth Amendment Effective Date among the Issuer, Lockheed ▇▇▇▇▇▇ and the other entities party thereto, as amended restated, supplemented or otherwise modified from time to time.
“Subscription Agreement” has the meaning given to such term in the Merger Agreement.
“Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of Voting Stock is at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more
\\4165-2766-4210 v2v5
intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer, prior to the Combination Closing Date, to a Subsidiary or Subsidiaries of the Issuer and, after the Combination Closing Date, a Subsidiary or Subsidiaries of the Acquiror.
“Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.
“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 mark-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 a Purchaser or any Affiliate of a Purchaser).
“Synthetic Lease” means any synthetic lease, tax retention operating lease, off-balance sheet loan or similar off-balance sheet financing arrangement whereby the arrangement is considered borrowed money indebtedness for tax purposes but is classified as an operating lease or does not otherwise appear on a balance sheet under GAAP.
“Taxes” has the meaning set forth in Section 3.01(a).
“Test Period” shall mean, as of any date of determination, the period of four consecutive fiscal quarters of (a) prior to the Combination Closing Date, the Issuer (taken as one accounting period) and (b) on and after the Combination Closing Date, the Acquiror (taken as one accounting period) (i) most recently ended on or prior to such date for which financial statements have been or are required to be delivered pursuant to Section 7.01(a) or Section 7.01(b) or (ii) in the case of any calculation pursuant to Section 8.17(b), ended on the last date of the fiscal quarter in question.
“Third Party” means any entity other than the Issuer, any Subsidiary thereof or any Affiliate thereof.
“Threshold Amount” means (x) prior to the Combination Closing Date, $1,000,000 and (y) on and after the Combination Closing Date, $10,000,000.
“Trademarks” has the meaning specified in the definition of Intellectual Property.
“Transactions” shall mean, collectively, the transactions constituting or contemplated by this Agreement and the other Note Documents and any prepayment, repayment, repurchase, prepayment, or defeasance of Indebtedness of the Issuer in connection therewith, the Combination and the consummation
\\4165-2766-4210 v2v5
of any other transactions in connection with the foregoing (including in connection with the Merger Agreement,any amendment or consent under the FP Note Purchase Agreement or the Convertible Note Purchase Agreement) and the payment of the fees, costs and expenses incurred in connection with any of the foregoing (including the Transaction Expenses)).
“Treasury Regulations” means the regulations, including temporary regulations, promulgated by the United States Treasury Department under the Internal Revenue Code, as such regulations may be amended from time to time (including the corresponding provisions of any future regulations).
“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person subject to 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.
“Uniform Commercial Code” or “UCC” means the Uniform Commercial Code as in effect in the State of New York; provided, that, if perfection or the effect of perfection or non-perfection or the priority of any security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, “Uniform Commercial Code” means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions hereof or of the other Note Documents relating to such perfection, effect of perfection or non-perfection or priority.
“United States” and “U.S.” mean the United States of America.
“U.S. Subsidiary” means any Subsidiary that is organized under the laws of any state of the United States or the District of Columbia.
“Voting Stock” means, with respect to any Person, Equity Interests issued by such Person the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such Person, even though the right so to vote has been suspended by the happening of such a contingency.
“WC Intercreditor Agreement” has the meaning specified in Section 8.01(q).
“Wholly Owned Subsidiary” means any Person 100% of whose Equity Interests are at the time owned by the Issuer (or, after the Combination Closing Date, the Acquiror) directly or indirectly through other Persons 100% of whose Equity Interests are at the time owned, directly or indirectly, by the Issuer (or, after the Combination Closing Date, the Acquiror).
“Withholding Agent” means any Note Party, and any other Person required by applicable Law to withhold or deduct amounts from a payment made by or on account of any obligation of any Note Party under any Note Document.
“Working Capital Facility” has the meaning specified in Section 8.03(g).
“Working Capital Lender” has the meaning specified in Section 8.01(q).
\\4165-2766-4210 v2v5
“Working Capital Priority Collateral” has the meaning specified in Section 8.01(q).
“Write-Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.
With reference to this Agreement and each other Note Document, unless otherwise specified herein or in such other Note Document:
\\4165-2766-4210 v2v5
\\4165-2766-4210 v2v5
\\4165-2766-4210 v2v5
Unless otherwise specified, all references herein to times of day shall be references to United States Eastern time (daylight or standard, as applicable).
THE NOTES
\\4165-2766-4210 v2v5
\\4165-2766-4210 v2v5
(i) Dispositions and Involuntary Dispositions. The Issuer shall promptly (and, in any event, within three (3) Business Days upon the receipt by any Note Party or any Subsidiary apply 100% of the Net Cash Proceeds of any Disposition or Involuntary Disposition (other than, so long as no Default or Event of Default exists at the time prepayment would otherwise be required pursuant to this Section 2.07(b)(i), where such Net Cash Proceeds of Dispositions and Involuntary Dispositions do not exceed (x) prior to the Combination Closing Date, $1,000,000 and (y) on or after the Combination Closing Date, $3,000,000, in each case, in the aggregate in any fiscal year ((x) or (y), as applicable, the “De Minimis Disposition Proceeds”)) to prepay the Notes and the accrued but unpaid interest thereon, to the extent such Net Cash Proceeds are not reinvested in Eligible Assets (1) prior to the Combination Closing Date, within 90 days of the date of such Disposition or Involuntary Disposition and (2) on or after the Combination Closing Date, (I) within twelve months following receipt of such Net Cash Proceeds or (II) if the Issuer or any Subsidiary enters into a legally binding commitment to reinvest such Net Cash Proceeds within twelve months following receipt thereof, within the later of (A) twelve months following receipt of such Net Cash Proceeds and (B) 180 days of the date of such legally binding commitment; provided, that if at the time that any such prepayment would be required, (I) the Issuer is also required to prepay the Bridge Notes (to the extent required by the Bridge Note Purchase Agreement), then the Issuer may apply the Net Cash Proceeds in accordance with the First Lien Intercreditor Agreement and any declined proceeds pursuant to clause (iv) below, in each case, to the prepayment of such outstanding amounts, plus accrued and unpaid interest thereon, under the Bridge Note Purchase Agreement and (II) after a Discharge of Priority Bridge Obligations (as defined in the First Lien Intercreditor Agreement), the Issuer is also required to offer to purchase any Indebtedness outstanding under the FP Note Purchase Agreement as a result of any such Disposition or Involuntary Disposition pursuant to the terms thereof, then the Issuer, at its election, may apply such Net Cash Proceeds not in excess of a pro rata basis (as determined in accordance with Section 2.12 of the First Lien Intercreditor Agreement) to the prepayment of such outstanding amounts, plus the accrued but unpaid interest thereon, plus, subject to Section 2.12 of the First Lien Intercreditor Agreement, any applicable Call Premium, if any, under the FP Note Purchase Agreement; provided, further that if any holder of such Indebtedness declines (or is deemed to have declined) all or any portion of such offer to purchase, such declined amount shall promptly (and, in any event, within three (3) Business Days after such holder has declined (or is deemed to have declined) such offer to purchase) be applied to prepay the Notes in accordance with the this clause (i). Notwithstanding the foregoing, the Note Parties and their Subsidiaries may not exercise the reinvestment rights set forth in the preceding sentence with respect to the Net Cash Proceeds (other than the De Minimis Disposition Proceeds) in excess of $10,000,000 in the aggregate. Any prepayment pursuant to this clause (i) shall be applied as set forth in clause (iv) below.
(ii) Extraordinary Receipts. The Issuer shall promptly (and, in any event, within three (3) Business Days) upon the receipt by any Note Party or any Subsidiary of the Net Cash Proceeds of any Extraordinary Receipts (other than so long as no Default or
\\4165-2766-4210 v2v5
Event of Default exists at the time prepayment would otherwise be required pursuant to this Section 2.07(b)(ii), where such Net Cash Proceeds of Extraordinary Receipts do not exceed (x) prior to the Combination Closing Date, $1,000,000 and (y) on or after the Combination Closing Date, $3,000,000, in each case, in the aggregate in any fiscal year), apply 100% of such Net Cash Proceeds to prepay the Notes and the accrued but unpaid interest thereon; provided, that if at the time such prepayment is required, (I) the Issuer is also required to prepay the Bridge Notes (to the extent required by the Bridge Note Purchase Agreement), then the Issuer may apply the Net Cash Proceeds in accordance with the First Lien Intercreditor Agreement and any declined proceeds pursuant to clause (iv) below, in each case, to the prepayment of such outstanding amounts, plus accrued and unpaid interest thereon, under the Bridge Note Purchase Agreement and (II) after a Discharge of Priority Bridge Obligations (as defined in the First Lien Intercreditor Agreement), the Issuer is required to offer to purchase any Indebtedness outstanding under the FP Note Purchase Agreement with the Net Cash Proceeds of such Extraordinary Receipts pursuant to the terms thereof, then the Issuer, at its election, may apply such Net Cash Proceeds not in excess of a pro rata basis (as determined on the basis of the aggregate outstanding principal amount of the Notes and the aggregate principal amount of the FP Notes outstanding) to the prepayment of such outstanding amounts plus the accrued but unpaid interest thereon under the FP Note Purchase Agreement; provided, further that if any holder of such Indebtedness declines (or is deemed to have declined) all or any portion of such offer to purchase, such declined amount shall promptly (and, in any event, within three (3) Business Days after such holder has declined (or is deemed to have declined) such offer to purchase) be applied to prepay the Notes in accordance with the this clause (ii). Any prepayment pursuant to this clause (ii) shall be applied as set forth in clause (iv) below.
\\4165-2766-4210 v2v5
The Issuer shall repay the outstanding principal amount of the Notes, together with all accrued and unpaid interest and all other Obligations, on the Maturity Date. Notes repaid or prepaid may not be reborrowed.
\\4165-2766-4210 v2v5
\\4165-2766-4210 v2v5
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.
All computations of interest shall be made on the basis of a 365/366-day year and actual days elapsed. Interest shall accrue on the Notes for the day on which the Notes are issued, and shall not accrue on the Notes, or any portion thereof, for the day on which the Notes or such portion is paid.
\\4165-2766-4210 v2v5
If any Purchaser shall, by exercising any right of setoff or otherwise, obtain payment in respect of any principal of or interest on its portion of any Note resulting in such Purchaser’s receiving payment of a proportion of the aggregate amount of the Note and accrued interest thereon greater than its pro rata share thereof as provided herein, then such Purchaser shall (a) notify the other Purchasers of such fact and (b) purchase for cash at face value, but without recourse, ratably from each of the other Purchasers such amount of the Notes held by each such other Purchaser (or interest therein), so that the benefit of all such payments shall be shared by the Purchasers ratably in accordance with the aggregate amount of principal of and accrued interest on their respective portions of the Notes and other amounts owing them; provided, that:
TAXES
\\4165-2766-4210 v2v5
\\4165-2766-4210 v2v5
All of the Note Parties’ obligations under this Article III shall survive any transfer of the Notes, the repayment, satisfaction or discharge of the Obligations hereunder and the resignation or replacement of the Collateral Agent or the Authorized Representative.
If the Issuer is required to pay any Taxes or additional amounts to any Purchaser or any Governmental Authority for the account of any Purchaser pursuant to Section 3.01, then at the request of the Issuer, such Purchaser shall use commercially reasonable efforts to designate a different lending office for purchasing its Notes hereunder or to assign its rights and obligations hereunder to another of its offices, branches or Affiliates, if, in the judgment of such Purchaser such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.01 as the case may be, in the future, and (ii) in each case, would not subject such Purchaser to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Purchaser. The Issuer hereby agrees to pay all reasonable and documented out-of-pocket costs and expenses (including all reasonable and documented out-of-pocket fees, charges and disbursements of counsel) incurred by any Purchaser in connection with any such designation or assignment.
GUARANTY
\\4165-2766-4210 v2v5
Each of the Guarantors hereby jointly and severally guarantees to each Secured Party as hereinafter provided, as primary obligor and not as surety, the prompt payment of the Obligations of the Issuer and any other Guarantors in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration or otherwise) strictly in accordance with the terms thereof. The Guarantors hereby further agree that if any of the Obligations are not paid in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration or otherwise), the Guarantors will, jointly and severally, promptly pay the same, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Obligations, the same will be promptly paid in full when due (whether at extended maturity, as a mandatory prepayment, by acceleration or otherwise) in accordance with the terms of such extension or renewal.
Notwithstanding any provision to the contrary contained herein or in any other of the Note Documents, the obligations of each Guarantor under this Agreement and the other Note Documents shall be limited to an aggregate amount equal to the largest amount that would not render such obligations subject to avoidance under the Debtor Relief Laws or any comparable provisions of any applicable state or federal law.
The obligations of the Guarantors under Section 4.01 are joint and several, absolute and unconditional, irrespective of the value, genuineness, validity, regularity or enforceability of any of the Note Documents, or any other agreement or instrument referred to therein, or any substitution, release, impairment or exchange of any other guarantee of or security for any of the Obligations, and, to the fullest extent permitted by applicable law, irrespective of any law or regulation or other circumstance whatsoever which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, it being the intent of this Section 4.02 that the obligations of the Guarantors hereunder shall be absolute and unconditional under any and all circumstances. Each Guarantor agrees that such Guarantor shall have no right of subrogation, indemnity, reimbursement or contribution against the Issuer or any other Guarantor for amounts paid under this Article IV until such time as the Obligations (other than contingent indemnification obligations for which no claim has been asserted) have been paid in full. Without limiting the generality of the foregoing, it is agreed that, to the fullest extent permitted by law, the occurrence of any one or more of the following shall not alter or impair the liability of any Guarantor hereunder, which shall remain absolute and unconditional as described above:
\\4165-2766-4210 v2v5
With respect to its obligations hereunder, each Guarantor hereby expressly waives diligence, presentment, demand of payment, protest and all notices whatsoever, and any requirement that the Collateral Agent or any Purchaser exhaust any right, power or remedy or proceed against any Person under any of the Note Documents, or any other agreement or instrument referred to in the Note Documents, or against any other Person under any other guarantee of, or security for, any of the Obligations.
The obligations of the Guarantors under this Article IV shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of any Person in respect of the Obligations is rescinded or must be otherwise restored by any holder of any of the Obligations, whether as a result of any proceedings in bankruptcy or reorganization or otherwise, and each Guarantor agrees that it will indemnify each Secured Party on demand for all reasonable and documented out-of-pocket costs and expenses incurred by such Secured Party in connection with such rescission or restoration, including any such costs and expenses incurred in defending against any claim alleging that such payment constituted a preference, fraudulent transfer or similar payment under any bankruptcy, insolvency or similar law.
Each Guarantor agrees that such Guarantor shall have no right of recourse to security for the Obligations, except through the exercise of rights of subrogation pursuant to Section 4.02 and through the exercise of rights of contribution pursuant to Section 4.06.
The Guarantors agree that, to the fullest extent permitted by law, as between the Guarantors, on the one hand, and the Collateral Agent and the Secured Parties, on the other hand, the Obligations may be declared to be forthwith due and payable as provided in Section 9.02 (and shall be deemed to have become automatically due and payable in the circumstances provided in said Section 9.02) for purposes of Section 4.01 notwithstanding any stay, injunction or other prohibition preventing such declaration (or preventing the Obligations from becoming automatically due and payable) as against any other Person and that, in the event of such declaration (or the Obligations being deemed to have become automatically due and payable), the Obligations (whether or not due and payable by any other Person) shall forthwith become due and payable by the Guarantors for purposes of Section 4.01. The Guarantors acknowledge and agree that their obligations hereunder are secured in accordance with the terms of the Collateral Documents and that the Purchasers may exercise their remedies thereunder in accordance with the terms thereof.
The Guarantors agree among themselves that, in connection with payments made hereunder, each Guarantor shall have contribution rights against the other Guarantors as permitted under applicable law. Such contribution rights shall be subordinate and subject in right of payment to the obligations of such Guarantors under the Note Documents and no Guarantor shall exercise such rights of contribution until all Obligations (other than contingent indemnification obligations for which no claim has been asserted) have been paid in full and the Commitments have been terminated.
\\4165-2766-4210 v2v5
The guarantee in this Article IV is a guaranty of payment and not of collection, is a continuing guarantee, and shall apply to all Obligations whenever arising.
CONDITIONS PRECEDENT
This Agreement shall become effective upon, and the obligation of each Purchaser to purchase the Notes is subject to, satisfaction of the following conditions precedent:
\\4165-2766-4210 v2v5
\\4165-2766-4210 v2v5
\\4165-2766-4210 v2v5
By issuing and delivering the Notes, the Issuer shall be deemed to represent and warrant that the conditions specified in Sections 5.01(d), (p) and (q) have been satisfied on and as of the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 11.03, for purposes of determining compliance with the conditions specified in this Section 5.01, each Purchaser that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Purchaser unless the Authorized Representative shall have received notice from such Purchaser prior to the proposed Closing Date specifying its objection thereto.
REPRESENTATIONS AND WARRANTIES
Each Note Party represents and warrants to the Secured Parties that:
Each Note Party and each of its Subsidiaries (a) is duly organized, incorporated or formed, validly existing and in good standing under the Laws of the jurisdiction of its incorporation or organization, (b) has all requisite power and authority and all requisite Permits, governmental licenses, authorizations, consents and approvals to (i) own or lease its assets and carry on its business and (ii) execute, deliver and perform its obligations under the Note Documents to which it is a party, and (c) is duly qualified and is licensed and in good standing under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification or license; except in each case referred to in clause (b)(i) or (c), to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
The execution, delivery and performance by each Note Party of each Note Document to which such Person is party have been duly authorized by all necessary corporate or other organizational action, and do not (a) contravene the terms of any of such Person’s Organization Documents, (b) conflict with or result in any breach or contravention of, or the creation of any Lien under, or require any payment to be made under (i) any material Contractual Obligation to which such Person is a party or affecting such Person or the properties of such Person or any of its Subsidiaries or (ii) any order, judgment, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject, in each case, in any material respect or (c) violate any applicable Law (including, without limitation, Regulation U or Regulation X issued by the FRB) in any material respect.
No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, any Note Party of this Agreement or any other Note Document other than (a) those that have already been obtained and are in full force and effect, (b) filings to perfect the Liens created by the Collateral Documents and (c) the filing of any applicable reports under securities laws.
\\4165-2766-4210 v2v5
Each Note Document has been duly executed and delivered by each Note Party that is party thereto. Each Note Document constitutes a legal, valid and binding obligation of each Note Party that is party thereto, enforceable against each such Note Party in accordance with its terms, subject to applicable Debtor Relief Laws or other Laws affecting creditors’ rights generally and subject to general principles of equity.
\\4165-2766-4210 v2v5
There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of the Note Parties, threatened or contemplated, at law, in equity, in arbitration or before any Governmental Authority, by or against any Note Party or any of its Subsidiaries or against any of their properties or revenues that (a) purport to affect or pertain to this Agreement or any other Note Document, or any of the transactions contemplated hereby or (b) either individually or in the aggregate, could reasonably be expected to result in any material liability of a Note Party or any of its Subsidiaries. The judgment related to the litigation involving ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc. described in Schedule 8.01 hereto has been paid in full.
Each Note Party and its Subsidiaries has good and marketable title in fee simple to, or valid leasehold interests in, all real property necessary or used in the ordinary conduct of its business. The property of each Note Party and its Subsidiaries is subject to no Liens, other than Permitted Liens.
\\4165-2766-4210 v2v5
\\4165-2766-4210 v2v5
\\4165-2766-4210 v2v5
Each Note Party has disclosed to the Purchasers all agreements, instruments and corporate or other restrictions to which it or any of its Subsidiaries is subject, and all other matters known to it, that, either individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect. No report, financial statement, certificate or other information furnished (whether written or oral) (other than forward-looking information and projections and information of a general economic nature and general information about the Note Parties’ industry) by or on behalf of any Note Party to any Purchaser in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder or under any other Note Document (in each case, as modified or supplemented by other information so furnished) contains any material misstatement of fact or omits to state any fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading in any material respect. Each Note Party represents, with respect to projections, estimates, budgets and other forward-looking information, only that such information was prepared in good faith based on assumptions believed to be reasonable at the time such projections were prepared, it being understood that such projections are not to be viewed as facts or as a guarantee of performance or achievement of any particular results and that actual results may vary from projected results (many of which factors are beyond the control of the Issuer and its Subsidiaries and their respective officers, representatives and advisors) and that such variances may be material and that no assurance can be given that the projected results will be realized.
Each Note Party and each Subsidiary is in compliance with the requirements of all Laws and all judgments, orders, writs, injunctions and decrees applicable to it or to its properties, except in such instances in which (a) such requirement of Law or judgment, order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (b) the failure to comply therewith could not reasonably be expected to be material in any respect.
\\4165-2766-4210 v2v5
\\4165-2766-4210 v2v5
\\4165-2766-4210 v2v5
The Issuer is Solvent on an individual basis, and the Issuer and its Subsidiaries are Solvent on a consolidated basis.
The Collateral Documents create valid security interests in, and Liens on, the Collateral purported to be covered thereby, which security interests and Liens will be, upon the timely and proper filings, deliveries, notations and other actions contemplated in the Collateral Documents, perfected security interests and Liens (to the extent that such security interests and Liens can be perfected by such filings, deliveries, notations and other actions contemplated in the Collateral Documents), prior to all other Liens other than Permitted Liens.
Set forth on Schedule 6.20(a) is a list of all real property that is owned or leased by the Note Parties as of the Closing Date (with (x) the address of each real property, (y) a designation of whether such real property is owned or leased and (z) if any Note Party maintains books and records at such real property). Set forth on Schedule 6.20(b) is the tax payer identification number and organizational identification number of each Note Party as of the Closing Date. The exact legal name and jurisdiction of organization of (a) the Issuer is as set forth on Schedule 6.20(b) and (b) each Guarantor is (i) as set forth on Schedule 6.20(b), (ii) as set forth in the Joinder Agreement pursuant to which such Guarantor became a party hereto. Except as set forth on Schedule 6.20(c), no Note Party has during the five years preceding the Fifth Amendment Effective Date (i) changed its legal name, (ii) changed its jurisdiction of organization, or (iii) been party to a merger, amalgamation, consolidation or such other structural change.
\\4165-2766-4210 v2v5
None of the Note Parties nor anyone acting on their behalf has offered or will offer to sell the Notes or any similar securities to, or solicit offers with respect thereto from, or enter into any preliminary conversations or negotiations relating thereto with, any Person, so as to require the issuance and sale of the Notes to be registered under the Securities Act or applicable securities laws of any other jurisdiction. None of the Note Parties nor anyone acting on their behalf has engaged, directly or indirectly, in any form of general solicitation or general advertising with respect to the offering of the Notes (as those terms are used in Regulation D) or otherwise in any manner involving a public offering within the meaning of Section 4(a)(2) of the Securities Act. Assuming the accuracy and completeness of the representations and warranties of the Purchasers set forth in Article VI-A below, the offer and sale of the Notes are exempt from registration under the Securities Act and any applicable securities laws of any other jurisdiction.
\\4165-2766-4210 v2v5
\\4165-2766-4210 v2v5
There are no existing or, to the knowledge of the Note Parties, threatened strikes, lockouts or other labor disputes involving any Note Party or any Subsidiary that singly or in the aggregate could reasonably be expected to have a Material Adverse Effect. Hours worked by and payment made to employees of the Note Parties and their Subsidiaries are not in violation in any material respect of the Fair Labor Standards Act or any other applicable law, rule or regulation dealing with such matters.
No Note Party or any of their Subsidiaries is an Affected Financial Institution.
The Indebtedness represented by the Notes and the other Obligations under the applicable Note Documents of each Note Party is intended to constitute senior secured Indebtedness, and accordingly is, and shall be, at all times while the Notes and the other Obligations remain outstanding, pari passu or senior in right of payment with all Indebtedness (if any) of such Note Party, other than the Indebtedness incurred under the Bridge Note Documents, but including the Indebtedness incurred under the FP Note Documents and the Convertible Note Documents; provided, that the BP Notes shall be subordinated in right of payment to the FP Notes pursuant to and in accordance with the BP Subordination Agreement.
No real property subject to a Mortgage is a Flood Hazard Property unless the Authorized Representative and the Collateral Agent shall have received the following: (a) the applicable Note Party’s written acknowledgment of receipt of written notification from the Authorized Representative (i) as to the fact that such real property is a Flood Hazard Property and (ii) as to whether the community in which each such Flood Hazard Property is located is participating in the National Flood Insurance Program, (b) copies of insurance policies or certificates of insurance of the applicable Note Party evidencing flood insurance reasonably satisfactory to the Secured Parties and naming the Collateral Agent as additional loss payee on behalf of the Secured Parties and (c) such other flood hazard determination forms, notices and confirmations thereof as requested by the Authorized Representative and the Collateral Agent. All flood hazard insurance policies required hereunder have been obtained and remain in full force and effect, and the premiums thereon have been paid in full.
The Strategic Cooperation Agreement (a) is in full force and effect and is binding upon and enforceable against any Note Party and any Subsidiary bound thereby in accordance with its terms, and (b) no Note Party or Subsidiary is currently in material breach or default thereunder.
ARTICLE VI-A.
Representations of the Purchasers TC “ARTICLE VI-A. Representations of the
\\4165-2766-4210 v2v5
Purchasers” \f C \l “1” ARTICLE VI-A. Representations of the Purchasers.
Each Purchaser represents and warrants to (and solely for the benefit of) the Note Parties as of the Closing Date that:
AFFIRMATIVE COVENANTS
So long as any Purchaser shall have any Note or other Obligation hereunder shall remain unpaid or unsatisfied (other than contingent indemnification obligations for which no claim has been asserted), each Note Party shall and shall cause each Subsidiary to:
\\4165-2766-4210 v2v5
Deliver to each Purchaser, in form and detail satisfactory to the Required Purchasers:
\\4165-2766-4210 v2v5
\\4165-2766-4210 v2v5
Documents required to be delivered pursuant to Section 7.01(a) or (b) or Section 7.02 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Issuer posts such documents, or provides a link thereto on the Issuer’s website on the Internet at the website address listed on Schedule 12.02, or (ii) on which such documents are posted on the Issuer’s behalf on an Internet or intranet website, if any, to which each Purchaser and the Authorized Representative have access (whether a commercial or third-party website); provided, that: (x) the Issuer shall deliver paper copies of such documents to the Authorized Representative or any Purchaser upon its request to the Issuer, and shall continue to deliver such paper copies until a written request to cease delivering paper copies is given by the Authorized Representative or such Purchaser and (y) the Issuer shall notify the Authorized Representative and each Purchaser (by facsimile or electronic mail) of the posting of any such documents and provide to each Purchaser by electronic mail electronic versions (i.e., soft copies) of such documents. The Authorized Representative shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Issuer with any such request for delivery by a Purchaser, and each Purchaser shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.
\\4165-2766-4210 v2v5
Each notice pursuant to this Section 7.03 shall be accompanied by a statement of a Responsible Officer of the Issuer setting forth details of the occurrence referred to therein and stating what action the applicable Note Party has taken and proposes to take with respect thereto. Each notice pursuant to Section 7.03(a) shall describe with particularity any and all provisions of this Agreement and any other Note Document that have been breached.
\\4165-2766-4210 v2v5
Pay and discharge, as the same shall become due and payable (a) all federal, state and other material tax liabilities, assessments and governmental charges or levies upon it or its properties or assets, unless the same are being contested in good faith by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained by the applicable Note Party or Subsidiary and such payment can be lawfully withheld and the failure to make payment pending such contest could not reasonably be expected to result in a Material Adverse Effect, (b) all lawful claims which has by law become a Lien upon its property as a result of non-payment (other than a Permitted Lien), and (c) all Material Indebtedness, as and when due and payable, but subject to any subordination provisions contained in any instrument or agreement evidencing such Indebtedness.
\\4165-2766-4210 v2v5
Comply in all material respects with the requirements of all material Laws and all material orders, writs, injunctions and decrees applicable to it or to its business or property, except in such instances in which such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted.
Subject to a Note Party’s security clearance requirements or policies and any applicable regulation with respect thereto, permit representatives and independent contractors of the Authorized Representative and each Purchaser to visit and inspect any of its properties, to examine its corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its affairs, finances and accounts with its directors, officers, and independent public accountants, all at the expense of the Issuer and at such reasonable times during normal business hours and as often as may be desired, upon reasonable advance notice to the Issuer; provided, however, so long as no Event of Default exists, the Issuer shall only be required to reimburse the Authorized Representative (but not any Purchaser) for two such visits and inspections in any fiscal year; provided, further, however, when an Event of Default exists, the Authorized Representative or any Purchaser (or any of their respective representatives or independent contractors) may do any of the foregoing at the expense of the Issuer at any time during normal business hours, as often as desired and without advance notice.
Use the proceeds of the Notes (i) to fund the construction of the Leviathan facility at the Shuttle Landing Facility on Merritt Island, Florida substantially as set forth on Schedule 7.11 and (ii) for general
\\4165-2766-4210 v2v5
working capital purposes; provided, that, in no event shall the proceeds of the Notes be used (x) for the repayment or redemption of any Indebtedness of the Note Parties or any of their Subsidiaries (other than the Exchange Notes), (y) to make Restricted Payments or (z) in contravention of any Law or of any Note Document; provided, further, that no proceeds of the Notes shall be used to make any Investments in PredaSAR Corporation.
It is the intent of the parties that each U.S. Subsidiary of the Acquiror that is a Wholly-Owned Subsidiary and established, created or acquired by the Acquiror after the Closing Date (including, for the avoidance of doubt, the Space Florida Subsidiary) and each Subsidiary that Guarantees the obligations of the Issuer under the FP Note Documents or, the Convertible Note Documents or the Bridge Note Documents become a Guarantor hereunder. Prior to or upon the acquisition or formation of any Subsidiary or the Guarantee by such Subsidiary of the obligations under the FP Note Documents or, the Convertible Note Documents or the Bridge Note Documents:
\\4165-2766-4210 v2v5
(b) Other Property. Cause all property (other than Excluded Property) of the Issuer and each Guarantor to be subject at all times to first priority, perfected and, in the case of fee-owned real property, title insured Liens in favor of the Collateral Agent (subject to Liens incurred pursuant to the Bridge Note Documents) to secure the Obligations pursuant to the Collateral Documents or, with respect to any such property acquired subsequent to the Closing Date, such other additional security documents, including Real Estate Security Documents, as the Authorized Representative or Required Purchasers shall request (subject to Permitted Liens), and in connection with the foregoing, deliver to the Collateral Agent and the Authorized Representative such other documentation as the Authorized Representative may reasonably request, including filings and deliveries necessary to perfect such Liens, Organization Documents, resolutions, Real Estate Security Documents, and favorable opinions of counsel to such Persons and the Purchasers, all in form, content and scope reasonably satisfactory to the Authorized Representative and the Required Purchasers.
Prior to the Combination Closing Date, comply with each Material Contract of such Person, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in (A) a loss of more than 10% of the consolidated revenue of the Issuer and its Subsidiaries on a consolidated basis (as measured against the consolidated revenue of the Issuer and its Subsidiaries reflected in the most recently delivered financial statements delivered pursuant to Sections 5.01(c) or 7.01 or (B) liability to any Note Party or any Subsidiary in excess of $5,000,000.
\\4165-2766-4210 v2v5
\\4165-2766-4210 v2v5
7.22 Board Observation Rights. The Authorized Representative shall be entitled to designate one observer (the “Board Observer”) to attend any regular meeting (a “BOD Meeting”) of the Board of Directors of the Acquiror (or, in each case, any relevant committees thereof), except that the Board Observer shall not be entitled to vote on matters presented to or discussed by the Board of Directors (or any relevant committee thereof) of the Acquiror at any such meetings. The Board Observer shall be timely notified of the time and place of any BOD Meetings and will be given written notice of all proposed actions to be taken by the Board of Directors (or any relevant committee thereof) of the Acquiror as if the Board Observer were a member thereof. Such notice shall describe in reasonable detail the nature and substance of the matters to be discussed and/or voted upon at such meeting (or the proposed actions to be taken by written consent without a meeting). The Board Observer shall have the right to receive all information provided to the members of the Board of Directors or any similar group performing an executive oversight or similar function (or any relevant committee thereof) of the Acquiror in anticipation of or at such meeting (regular or special and whether telephonic or otherwise), in addition to copies of the records of the proceedings or minutes of such meeting, when provided to the members, and the Board Observer shall keep such materials and information confidential in accordance with Section 12.07. The Issuer shall reimburse the Board Observer for all reasonable out-of-pocket costs and expenses incurred in connection with its participation in any such BOD Meeting. Notwithstanding the foregoing, the Issuer may exclude Board Observer from access to any material or meeting or portion thereof if: (i) the Board of Directors concludes in good faith, upon advice of the Acquiror’s counsel, that such exclusion is necessary to preserve the attorney-client or work product privilege between the Acquiror or any of its Affiliates and its counsel; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board or Directors, independent auditors and/or legal counsel, as the Board of Directors may designate and such limitation is
\\4165-2766-4210 v2v5
reasonably necessary with respect to the applicable matters, or (iii) such exclusion is necessary to avoid a conflict of interest between the Acquiror on the one hand and the Authorized Representative on the other.
NEGATIVE COVENANTS
So long as any Purchaser shall have any Note or other Obligation hereunder that shall remain unpaid or unsatisfied (other than contingent indemnification obligations for which no claim has been asserted), each Note Party shall not, nor shall it permit any Subsidiary to, directly or indirectly:
Create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, other than the following:
\\4165-2766-4210 v2v5
(i) Liens securing Indebtedness permitted under Section 8.03(e); provided, that: (i) such Liens do not at any time encumber any property other than the property financed by such Indebtedness, (ii) the Indebtedness secured thereby does not exceed the cost (negotiated on an arm’s length basis) of the property being acquired on the date of acquisition and (iii) such Liens attach to such property concurrently with or within ninety (90) days after the acquisition thereof;
(q) Subject to Section 12.24 and so long as an Enhanced Protection Event has not occurred, Liens solely on accounts receivable, inventory, cash and any deposit account established and maintained with the lender under a Working Capital Facility to hold such cash and all proceeds of the foregoing (other than proceeds of (i) the Notes, (ii) Intellectual Property, and (iii) Collateral that does not secure such Working Capital Facility) (the “Working Capital Priority Collateral”) securing the Indebtedness under any Working Capital Facility permitted by Section 8.03(g), which Liens may rank higher in lien priority to the Liens of the Collateral Agent on the Working Capital Priority Collateral securing the Obligations of the Secured Parties; provided, that such Indebtedness is subject to a customary intercreditor and lien
\\4165-2766-4210 v2v5
subordination agreement (a “WC Intercreditor Agreement”) in form and substance reasonably satisfactory to the Authorized Representative and the Collateral Agent with the applicable financial institution providing such Working Capital Facility (“Working Capital Facility Lender”) pursuant to which (A) the security interest in the Working Capital Priority Collateral securing the Working Capital Facilities are senior and prior to the security interest of the Collateral Agent in the Working Capital Priority Collateral securing the Obligations, (B) the Collateral Agent, on behalf of the Secured Parties, shall retain a second priority security interest in such Working Capital Priority Collateral, and (C) the Collateral Agent, on behalf of the Secured Parties, shall maintain its first priority security interest in all other Collateral of the Note Parties; and
(s) after the Combination Closing Date, Liens (i) solely on any cash (or Cash Equivalent) ▇▇▇▇▇▇▇ money deposits (including as part of any escrow arrangement) made by a Note Party or any Subsidiaries in connection with any letter of intent or purchase agreement with respect to any Investment permitted hereunder, or (ii) on advances of cash or Cash Equivalents in favor of the seller of any property to be acquired in an Investment permitted pursuant to Section 8.02 to be applied against the purchase price for such Investment;
(t) after the Combination Closing Date, Liens to secure obligations in respect of letters of credit incurred pursuant to Section 8.03(l); and
(u) after the Combination Closing Date, other Liens securing obligations which do not exceed $5,000,000.
Make any Investments, except:
\\4165-2766-4210 v2v5
(f) Investments in any Subsidiary that is not a Note Party not exceeding (x) prior to the Combination Closing Date, $100,000 or (y) on and after the Combination Closing Date, $5,000,000, in each case, in the aggregate at any one time outstanding;
(g) other Investments by a Note Party (prior to the Combination Closing Date, other than PredaSAR Corporation) (x) prior to the Combination Closing Date, (i) in any Person (other than PredaSAR Corporation) that is organized under the laws of any state of the United States or the District of Columbia or (ii) to the extent acquired by such Note Party, in assets located in the United States not exceeding prior to the Combination Closing Date, $5,000,000 or (y) not exceeding, on and after the Combination Closing Date, $10,000,000, in each case, in the aggregate at any one time outstanding for all such Investments made pursuant to this clause (g); provided, that, no Investment otherwise permitted by this clause (g) shall be permitted to be made if any Default has occurred and is continuing or would result therefrom;
\\4165-2766-4210 v2v5
(k) loans or advances (x) prior to the Combination Closing Date, from Non-U.S. Subsidiaries to any employee, officer, director or member of management of any Non-U.S. Subsidiary, the proceeds of which are used to satisfy tax liabilities of such employee, officer, director or member of management incurred in connection with the exercise of stock options in the Issuer held by such Person and (y) on or after the Combination Closing Date, to any employee, officer, director or member of management of the Acquiror and its Subsidiaries, the proceeds of which are used to satisfy tax liabilities of such employee, officer, director or member of management incurred in connection with the exercise of stock options in the Issuer held by such Person; provided that the aggregate amount of all loans and advances made pursuant to this clause (k) does not exceed (x) prior to the Combination Closing Date, $150,000 or (y) on and after the Combination Closing Date, $2,500,000, in each case, at any time outstanding;
(l) after the Combination Closing Date, loans and advances to officers, directors, managers, and employees for business related travel expenses, moving expenses, and other similar expenses, in each case incurred in the ordinary course of business; provided that the aggregate amount of all loans and advances made pursuant to this clause (l) does not exceed (x) prior to the Combination Closing Date, $150,000 or (y) on and after the Combination Closing Date, $2,500,000, in each case, at any time outstanding;
(o) Investments in Tyvak International S.R.L. in an aggregate amount not to exceed $3,000,000;
\\4165-2766-4210 v2v5
Create, incur, assume or suffer to exist any Indebtedness, except:
(e) purchase money Indebtedness (including obligations in respect of Capital Leases or Synthetic Leases) hereafter incurred by the Issuer or any of its Subsidiaries to finance the purchase of fixed assets, and renewals, refinancings and extensions thereof, provided, that, (i) no Default or Event of Default has occurred and is continuing both immediately prior to and after giving effect thereto, (ii) the total of all such Indebtedness for all such Persons taken together shall not exceed an aggregate principal amount of (x) prior to the Combination Closing Date, $10,000,000 or (y) on and after the Combination Closing Date, $25,000,000, in each case, at any one time outstanding, (iii) such Indebtedness when incurred shall not exceed the purchase price of the asset(s) financed, (iv) no such Indebtedness shall be refinanced for a principal amount in excess of the principal balance outstanding thereon at the time of such refinancing except by an amount equal to unpaid accrued interest and premium thereon plus other amounts owing or paid related to such Indebtedness, and fees, commissions and expenses (including upfront fees and original issue discount) reasonably incurred, in connection with such refinancing and (v) any such Indebtedness that is refinanced, renewed or extended shall not have a scheduled maturity date earlier than the date that is 180 days after the Maturity Date;
(f) other unsecured Indebtedness hereafter incurred by the Issuer or any of its Subsidiaries in an aggregate amount not to exceed (x) prior to the Combination Closing Date, $5,000,000 or (y) on and after the Combination Closing Date, $10,000,000, in each case, at any one time outstanding; provided, that (i) the aggregate amount of unsecured Indebtedness incurred by Subsidiaries that are not Note Parties under this clause (f) shall not exceed (x) prior to the Combination Closing Date, $1,000,000 or (y) on and after
\\4165-2766-4210 v2v5
the Combination Closing Date, $3,000,000 and (ii) prior to the Combination Closing Date, unsecured Indebtedness incurred by the Issuer or another Note Party under this clause (f) shall be subordinated to the Obligations pursuant to a subordination agreement in form and substance reasonably satisfactory to the Authorized Representative; provided, further that the Issuer and the Note Parties may incur unsecured Indebtedness pursuant to this clause (f) without subordinating such Indebtedness to the Obligations so long as the aggregate principal amount of such unsecured Indebtedness not subject to a subordination agreement does not exceed $2,000,000;
(g) Subject to Section 12.24 and so long as an Enhanced Protection Event has not occurred, Indebtedness of the Issuer or another Note Party in the form of one or more revolving credit or other working capital facilities with a maximum credit line of no more than (x) prior to the Combination Closing Date, $5,000,000 or (y) on and after the Combination Closing Date, in an aggregate amount not to exceed, together with the aggregate amount incurred pursuant to Section 8.03(l), $25,000,000, in each case, in the aggregate (each, a “Working Capital Facility”); provided, that (i) no Subsidiary shall Guarantee, or provide a Lien to secure, the obligations under any such Working Capital Facility if such Subsidiary is not a Guarantor (and does not pledge its assets in support thereof) in accordance with the terms of the Note Documents and (ii) no Default or Event of Default shall exist at the time the definitive credit, loan or similar agreement in respect of such Working Capital Facility is executed and delivered;
(j) after the Combination Closing Date, Indebtedness of any Note Party or any Subsidiary assumed or acquired in connection with any Permitted Acquisition; provided that (i) the amount of such Indebtedness shall be included in the calculation of the Permitted Acquisition Cap, (ii) such Indebtedness exists at the time such Permitted Acquisition is consummated and is not created or incurred in connection therewith or in contemplation thereof, (iii) no Note Party (other than such Person so acquired in such Permitted Acquisition or any other Person that such Person merges with or that acquires the assets of such Person in connection with such Permitted Acquisition) shall have any liability or other obligation with respect to such Indebtedness and (iv) if such Indebtedness is secured, no Lien thereon shall extend to or cover any other assets other than the assets acquired in such Permitted Acquisition (other than the proceeds or products thereof, accessions or additions thereto and improvements thereon) or attach to any other property of any Note Party.
\\4165-2766-4210 v2v5
Merge, dissolve, divide, liquidate, consolidate, with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, or consummate a Change of Control (other than the Combination) or Qualified Public Company Event (other than the Combination); provided, that,
\\4165-2766-4210 v2v5
notwithstanding the foregoing provisions of this Section 8.04 but subject to the terms of Sections 7.12 and 7.14, (a) the Issuer may merge or consolidate with any of its direct Subsidiaries, provided that the Issuer shall be the continuing or surviving entity, (b) any Note Party (other than the Issuer) may merge or consolidate with any other Note Party or any other Person who becomes a Note Party as a result of such merger or consolidation and (c) any Subsidiary that is not a Note Party may be merged or consolidated with or into any Note Party, provided that such Note Party shall be the continuing or surviving entity, (d) any Subsidiary that is not a Note Party may be merged or consolidated with or into any other direct Subsidiary of it that is not a Note Party or any other Person in order to effect an Investment permitted pursuant to Section 8.02, (e) any Subsidiary that is not a Note Party may dissolve, liquidate or wind up its affairs at any time provided that such dissolution, liquidation or winding up could not reasonably be expected to have a Material Adverse Effect and all of its assets and business are transferred to a Note Party prior to or concurrently with such dissolution, liquidation or winding up and (f) so long as no Default or Event of Default exists or would result therefrom, after the Combination Closing Date, any Note Party (other than the Acquiror or the Issuer) or Subsidiary (other than the Issuer) may effect a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 8.05; provided, that, in the case of (a) through (dc) above, the merging parties are organized in the same jurisdiction (it being understood that for this purpose, States of the United States shall be deemed to be the same jurisdiction as each other).
Make any Disposition, unless (a) the consideration paid in connection therewith shall be cash or Cash Equivalents paid contemporaneous with consummation of the transaction and shall be in an amount not less than the fair market value of the property disposed of, (b) no Default or Event of Default shall have occurred and be continuing both immediately prior to and after giving effect to such Disposition, (c) such transaction does not involve the sale or other disposition of any Equity Interests in any Subsidiary, (d) the Issuer shall use the Net Cash Proceeds of such Disposition to prepay the Notes to the extent required by Section 2.07(b) and (e) the aggregate fair market value of all of the assets sold or otherwise disposed of in such Disposition together with the aggregate fair market value of all assets sold or otherwise disposed of by the Note Parties and their Subsidiaries in all such transactions occurring during the term of this Agreement does not exceed (x) prior to the Combination Closing Date, $1,000,000 or (y) on and after the Combination Closing Date, $2,000,000; provided that after the Combination Closing Date, the Note Parties and their Subsidiaries may make Dispositions of property in an amount not to exceed $25,000,000 in the aggregate so long as (i) at the time of such Disposition (other than any such Disposition made pursuant to a legally binding commitment entered into at a time when, after giving effect to such Disposition, no Default or Event of Default has occurred and is continuing), no Default or Event of Default shall have occurred and is continuing or would result from such Disposition, and (ii) with respect to any Disposition (or series of related Dispositions), the Note Party or relevant Subsidiary shall receive not less than 75% of such consideration in the form of cash or Cash Equivalents and the consideration shall be not less than the fair market value of the property disposed of (in each case, free and clear of all Liens at the time received, other than Liens permitted by Section 7.01).
Make any Disposition.
\\4165-2766-4210 v2v5
(c) each Note Party and each of their Subsidiaries may declare and make dividend payments or other distributions payable solely in the Qualified Capital Stock of such Person;
(d) after the Combination Closing Date, the payment of any dividend or distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration thereof or the giving of such irrevocable notice, as applicable, if at the date of declaration or the giving of such notice such payment would have been permitted by another clause of this Section 8.06 and complied with the provisions of this Agreement;
(f) prior to the Combination Closing Date, the Issuer or, on and after the Combination Closing Date, the Acquiror may pay for the repurchase, retirement or other acquisition or retirement for value of its Equity Interests from any future, present or former employee, officer, director, manager, member, partner, independent contractor or consultant (or their respective Affiliates or immediate family members) of the Issuer or Acquiror, as applicable, or any of their respective Subsidiaries upon the death, disability, retirement or termination of employment of any such Person or pursuant to any Plan, including any employee or director equity plan, employee, manager, officer, member partner, independent contractor or director stock option plan or any other employee, manager, officer, member, partner, independent contractor or director benefit plan, or any agreement (including any stock subscription or shareholder agreement) with any employee, manager, director, officer, member, partner, independent contractor or consultant of the Issuer or Acquiror, as applicable, or any of their respective Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (f) shall not exceed (x) prior to the Combination Closing Date, $1,000,000 in any calendar year or (y) on and after the Combination Closing Date, $2,000,000 in any calendar year (provided that the amount of Restricted Payments permitted to be, but not, paid in any calendar year pursuant to this clause (f) after the Combination Closing Date shall increase the amount of Restricted Payments permitted to be paid in any succeeding fiscal years pursuant to this clause (f)); provided, further that no Default or Event of Default shall exist at the time of such payment;
\\4165-2766-4210 v2v5
(h) after the Combination Closing Date, additional Restricted Payments in an amount not to exceed, together with the aggregate amount of Junior Debt Restricted Payments made pursuant to clause (c) of Section 8.11, $5,000,000; and
(i) after the Combination Closing Date, provided that (i) no Event of Default shall exist at the time of such Restricted Payment or would result therefrom, (ii) after giving effect to such Restricted Payment, the Note Parties are in compliance with Section 8.17 on a pro forma basis, and (iii) the Staton Cash Payment Obligations are subordinated to all Obligations pursuant to a subordination agreement in form and substance reasonably satisfactory to the Purchasers, the ▇▇▇▇▇▇ Payment Obligations, in an amount equal to $30,000,000 to be paid in sixteen quarterly installments, in which the first four quarterly installments of $1,875,000 during the first twelve months following the Combination Closing Date shall be paid in cash and the remaining quarterly installments thereafter shall be paid, at the Acquiror’s election, (x) in the common stock of the Acquiror or (y) in cash; provided that for the avoidance of doubt, nothing herein shall prevent the ▇▇▇▇▇▇ Payment Obligations from being paid in the form of common stock in accordance with the terms of the ▇▇▇▇▇▇ Subscription Agreement; and
Engage in any material line of business substantially different from those lines of business conducted by the Issuer and its Subsidiaries on the Closing Date or any business substantially related or incidental thereto, or change the location of its manufacturing facilities.
Enter into or permit to exist any transaction or series of transactions, with any officer, director or Affiliate of a Note Party or a Subsidiary other than (a) advances of working capital to any Note Party, (b) transfers of cash and assets to any Note Party, (c) intercompany transactions expressly permitted by Section 8.02, Section 8.03, Section 8.04, Section 8.05 or Section 8.06 (in each case, other than by reference to this Section 8.08 (or any sub-clause hereof)), (d) normal and reasonable compensation, benefits and reimbursement of expenses of officers and directors in the ordinary course of business, (e) the Services Agreement and (f) the Broken Sound Lease and (g) except as otherwise specifically limited in this Agreement, other transactions which are entered into in the ordinary course of such Person’s business on terms and conditions substantially as favorable to such Person as would be obtainable by it in a comparable arms-length transaction with a Person other than an officer, director or Affiliate.
\\4165-2766-4210 v2v5
Enter into, or permit to exist, any Contractual Obligation that (a) encumbers or restricts the ability of any such Person to (i) make Restricted Payments to any Note Party or Subsidiary, (ii) pay any Indebtedness or other obligations owed to any Note Party or Subsidiary, (iii) make loans or advances to any Note Party or Subsidiary, (iv) transfer any of its property to any Note Party or Subsidiary, (v) pledge its property pursuant to the Note Documents or any renewals, refinancings, exchanges, refundings or extension thereof or (vi) act as a Note Party pursuant to the Note Documents or any renewals, refinancings, exchanges, refundings or extension thereof, except (in respect of any of the matters referred to in clauses (i) through (v) above) for (1) this Agreement and the other Note Documents, (2) each of the FP Note Documents or, the Convertible Note Documents and the Bridge Note Documents; provided, that the restrictions set forth in such document(s) are no more restrictive to the Note Parties than the restrictions set forth in the Note Documents, (3) any Working Capital Facility and related documents; provided, that the restrictions set forth therein, taken as a whole, are no more restrictive to the Note Parties than the restrictions set forth in the Note Documents (other than any restrictions unique to a Working Capital Facility or revolving facility), (4) any document or instrument governing Indebtedness incurred pursuant to Sections 8.03(e), provided, that, any such restriction contained therein relates only to the asset or assets constructed or acquired in connection therewith,[reserved], (4) [reserved], (5) customary provisions restricting assignment of any agreement entered into by the Issuer or any Subsidiary in the ordinary course of business, or (6) customary restrictions and conditions contained in any agreement relating to the sale of any property permitted under Section 8.05 pending the consummation of such sale[reserved] or (b) requires the grant of any security for any obligation if such property is given as security for the Obligations other than the FP Note Documents, the Convertible Note Documents or any Working Capital Facilitythe Bridge Note Documents.
Use the proceeds of any Note, whether directly or indirectly, and whether immediately, incidentally or ultimately, to purchase or carry margin stock (within the meaning of Regulation U of the FRB) or to extend credit to others for the purpose of purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose.
Make (or give any notice with respect thereto) any voluntary or optional payment or prepayment or voluntary or optional redemption or acquisition for value of (including without limitation, by way of depositing money or securities with the trustee with respect thereto before due for the purpose of paying when due), refund, refinance or exchange of any Indebtedness of any Note Party or any Subsidiary (each of the foregoing, a “Junior Debt Restricted Payment”), other than (a) Indebtedness arising under the Note Documents, (b) Indebtedness arising under the FP Note Documents so long as the Notes are concurrently prepaid on a pro rata basis (as determined in accordance with Section 2.12 of the First Lien Intercreditor Agreement), (c) Indebtedness permitted by Section 8.03(e) (solely to the extent made with the proceeds of additional issuances of Indebtedness permitted under Section 8.03(e)), (d) other Indebtedness (other than the conversion of the Convertible Notes to common stock of the Issuer, (e) Indebtedness arising under the FPBridge Note Documents and the Convertible Note Documents) so long as the aggregate principal amount of Junior Debt Restricted Payments pursuant to this clause (d) does not exceed (x) prior to the Combination Closing Date, $500,000 in the aggregate and (y) on and after the Combination Closing Date, $5,000,000 in the aggregate together with Restricted Payments made pursuant to Section 8.06(h), (e) provided that no Default or Event of Default shall exist at the time of such payment, Indebtedness with respect to Working Capital Facilities, (f) after the Combination Closing Date, provided that (i) no Event of Default shall exist at the time of such payment or would result therefrom and (ii) the Staton Cash Payment Obligations shall be subordinated to all Obligations pursuant to a subordination agreement in form and substance reasonably satisfactory to the Purchasers, payment by the Acquiror of its obligations (the “▇▇▇▇▇▇ Payment Obligations”
\\4165-2766-4210 v2v5
and any such obligations payable in cash, the “Staton Cash Payment Obligations”) to ▇▇▇▇▇▇ in connection with any PIPE investment made by such entities as set forth in the ▇▇▇▇▇▇ Subscription Agreement (as in effect on the Fifth Amendment Effective Date and without giving effect to any amendments or modifications thereto in any manner adverse to the interests of the Purchasers) between the Acquiror and ▇▇▇▇▇▇, in an amount equal to $30,000,000 to be paid in sixteen quarterly installments, in which the first four quarterly installments of $1,875,000 during the first twelve months following the Combination Closing Date shall be paid in cash and the remaining quarterly installments thereafter shall be paid, at the Acquiror’s election, (x) in the common stock of the Acquiror or (y) in cash (provided that, for the avoidance of doubt, nothing herein shall prevent the ▇▇▇▇▇▇ Payment Obligations from being paid in the form of common stockNotes are concurrently prepaid (as determined in accordance with Section 2.12 of the First Lien Intercreditor Agreement), (f) payment by the Issuer of the ▇▇▇▇▇▇ Payment Obligations solely in the common stock of the Acquiror in accordance with the terms of the ▇▇▇▇▇▇ Subscription Agreement) and (g) (i) provided that no Default or Event of Default shall exist at the time of such payment or would result therefrom, so long as the Consolidated Interest Coverage Ratio of the Acquiror and its Subsidiaries, determined on a pro forma basis as of the last day of the most recently ended Test Period, is not less than 2.00:1.00, cash interest on the Convertible Notes, as set forth in Section 2.09 of the Convertible Note Purchase Agreement, (ii) Indebtedness arising under the Convertible Note Documents (x) so long as the Notes are concurrently prepaid or repaid in whole or (y) so long as no Default or Event of Default shall exist at the time of such payment or would result therefrom, such Indebtedness is repaid in whole or in part substantially concurrently solely with the proceeds of the sale of the Acquiror’s Qualified Capital Stock, and the Issuer shall have delivered a written notice of such sale and repayment five (5) Business Days prior to such event, and (iii) any payment of cash pursuant to Section 8.23 of the Convertible Note Purchase Agreement (for the avoidance of doubt, the parties hereto agree that any such payments shall constitute a Junior Debt Restricted Payment subject to this Section 8.11) (x) so long as the Notes are concurrently prepaid or repaid in whole or (y) so long as no Default or Event of Default shall exist at the time of such payment or would result therefrom, such cash payment is repaid in whole substantially concurrently solely with the proceeds of a sale of the Acquiror’s Qualified Capital Stock, and the Issuer shall have delivered a written notice of such sale and repayment five (5) Business Days prior to such event.
\\4165-2766-4210 v2v5
Notwithstanding any other provisions of this Agreement to the contrary, (a) permit any Person (other than any Note Party or any Wholly-Owned Subsidiary of the Issuer) to own any Equity Interests of any Subsidiary of any Note Party, except (i) to qualify directors where required by applicable law or to satisfy other requirements of applicable law with respect to the ownership of Equity Interests of Non-U.S. Subsidiaries and (ii) Subsidiaries that are not Wholly-Owned Subsidiaries formed or acquired pursuant to Section 8.03(g), (b) permit any Note Party or any Subsidiary to issue or have outstanding any shares of Disqualified Capital Stock or (c) create, incur, assume or suffer to exist any Lien (other than Liens permitted under Section 8.01(a) and (r)) on any Equity Interests of any Subsidiary of any Note Party.
Enter into any Sale and Leaseback Transaction.
\\4165-2766-4210 v2v5
(a) (i) With respect to the fiscal quarters ending March 31, 2022, June 30, 2022 and September 30, 2022, the Issuer shall not permit the aggregate amount of unrestricted cash and Cash Equivalents of (A) the Note Parties that is subject to a Deposit Account Control Agreement and (B) Subsidiaries that are not Note Parties (provided that the amount of unrestricted cash and Cash Equivalents taken into account for purposes of clause (B) shall not exceed $5,000,000), to be less than, as of the last date of each such fiscal quarter, $20,000,000.
(ii) With respect to the fiscal quarter ending December 31, 2022, the Issuer shall not permit the aggregate amount of unrestricted cash and Cash Equivalents of (A) the Note Parties that is subject to a Deposit Account Control Agreement and (B) Subsidiaries that are not Note Parties (provided that the amount of unrestricted cash and Cash Equivalents taken into account for purposes of clause (B) shall not exceed $5,000,000), to be less than, as of the last date of each such fiscal quarter, $10,000,000.
(iiia) With respect to each fiscal quarter ending on or after December 31, 20222024, the Issuer shall not permit the aggregate amount of unrestricted cash and Cash Equivalents of (A) the Note Parties that is subject to a Deposit Account Control Agreement and (B) Subsidiaries that are not Note Parties (provided that the amount of unrestricted cash and Cash Equivalents taken into account for purposes of
\\4165-2766-4210 v2v5
clause (B) shall not exceed $5,000,000) to be less than, as of the last date of each such fiscal quarter, the greater of (x) $20,000,000 and (y) an amount equal to 15% of the total Funded Indebtedness of the Note Parties and their Subsidiaries.
(b) The Issuer shall not permit Consolidated Adjusted EBITDA, as of the last day of any Test Period, commencing with the fiscal quarter ending June 30December 31, 2024 and each fiscal quarter thereafter, to be less than $0.00; provided that the commencement date of the foregoing covenant test will be extended by one fiscal quarter for every $25,000,000 of net cash proceeds received by the Issuer from the issuance of its Qualified Capital Stock, which for the avoidance of doubt shall not be subject to any redemption, escrow, holdback or other similar provisions; and, for the avoidance of doubt, shall not include the exercise of conversion rights by any purchaser under the Convertible Note Purchase Agreement provided, further that any such extension shall not take effect until the Purchasers have received a certificate of a Responsible Officer of the Issuer certifying as to the amount of net cash proceeds received by the Issuer from any such issuance of Qualified Capital Stock.
EVENTS OF DEFAULT AND REMEDIES
Any of the following shall constitute an Event of Default:
\\4165-2766-4210 v2v5
\\4165-2766-4210 v2v5
\\4165-2766-4210 v2v5
Subject to the Collateral Agency and Intercreditor Agreement, the First Lien Intercreditor Agreement and the First Lien/Second Lien Intercreditor Agreement, if any Event of Default occurs and is continuing, the Required Majority Purchasers (or following the Non-Controlling Noteholder Enforcement Date (as defined in the Collateral Agency and Intercreditor Agreement), the Directing Noteholder (as defined in the Collateral Agency and Intercreditor Agreement)) may take any or all of the following actions:
provided, however, that upon the occurrence of an Event of Default under Section 9.01(f) or (g), the unpaid principal amount of all outstanding Notes and all interest and other amounts as aforesaid shall automatically become due and payable, in each case without further act of the Collateral Agent, the Authorized Representative or any Purchaser; provided, further, that any exercise of rights and remedies under Deposit Account Control Agreements requires the consent of the Required Purchasers.
Upon the acceleration (including automatic acceleration triggered by any insolvency proceeding pursuant to Section 9.01(f)), all outstanding Notes, accrued and unpaid interest and the other Obligations become immediately due and payable. If the Obligations are accelerated for any reason, the PIK Interest paid on the Notes on or prior to the date of such acceleration and the PIK Interest – BP paid on the BP Notes on or prior to the date of such acceleration shall be deemed earned in full and shall constitute part of the Obligations, in view of the impracticability and extreme difficulty of ascertaining actual damages and
\\4165-2766-4210 v2v5
by mutual agreement of the parties as to a reasonable calculation of each Purchaser’s lost profits as a result thereof. In the event that the Obligations (and/or this Agreement) are satisfied or released by foreclosure (whether by power of judicial proceeding), deed in lieu of foreclosure or by any other means, the PIK Interest paid on the Notes on or prior to the date of such satisfaction or release and the PIK Interest – BP paid on the BP Notes on or prior to the date of such satisfaction or release shall also be earned in full. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE ISSUER EXPRESSLY WAIVES THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING PIK INTEREST AND PIK INTEREST - BP IN CONNECTION WITH ANY SUCH ACCELERATION. The Issuer expressly agrees that (i) the PIK Interest on the Notes and the PIK Interest – BP on the BP Notes are reasonable and are the product of an arm’s length transaction between sophisticated business people, ably represented by counsel, (ii) the PIK Interest on the Notes and the PIK Interest – BP on the BP Notes shall be payable notwithstanding the then prevailing market rates at the time payment is made, (iii) there has been a course of conduct between the Purchasers and the Issuer giving specific consideration in this transaction for such agreement to pay the PIK Interest on the Notes and the PIK Interest – BP on the BP Notes, and (iv) the Issuer shall be estopped hereafter from claiming differently than as agreed to in this paragraph. The Issuer expressly acknowledge that its agreement to pay the PIK Interest on the Notes and the PIK Interest – BP on the BP Notes is a material inducement to the Purchasers to purchase the Notes hereunder.
After the exercise of remedies provided for in Section 9.02 (or after the Notes have automatically become immediately due and payable as set forth in the proviso to Section 9.02), subject to the terms of the First Lien Intercreditor Agreement and the First Lien/Second Lien Intercreditor Agreement, any amounts received by any Purchaser, the Authorized Representative or the Collateral Agent on account of the Obligations shall be applied in the following order:
First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel, and costs and expenses incurred in connection with any enforcement or realization of the Collateral) payable to the Collateral Agent in its capacity as Collateral Agent under the Note Documents;
Second, to the payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including fees, charge and disbursements of counsel to the Authorized Representative and the Purchasers and amounts payable under Article III) payable to the Authorized Representative in its capacity as such;
Third, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal and interest) payable to the Purchasers arising under the Note Documents and amounts payable under Article III, ratably among them in proportion to the respective amounts described in this clause Third payable to them;
Fourth, to payment of that portion of the Obligations constituting accrued and unpaid interest on the Notes, ratably among the Purchasers in proportion to the respective amounts described in this clause Fourth held by them;
Fifth, to payment of that portion of the Obligations constituting accrued and unpaid principal of the Notes (including any capitalized PIK interest), ratably among the Purchasers in proportion to the respective amounts described in this clause Fifth held by them; and
\\4165-2766-4210 v2v5
Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to the Issuer or as otherwise required by Law.
[RESERVED]
AUTHORIZED REPRESENTATIVE
\\4165-2766-4210 v2v5
(e) (i) The Authorized Representative is hereby authorized to enter into (and/or direct the Collateral Agent to into) any WC Intercreditor Agreement or subordination agreement contemplated by Section 8.03(f), in each case, consistent with the terms of this Agreement, and each Purchaser agrees to be bound by the terms thereof and directs the Authorized Representative and/or Collateral Agent to enter into such WC Intercreditor Agreement on behalf of such Purchaser in connection with a Working Capital Facility or such subordination agreement on behalf of such ▇▇▇▇▇▇▇▇▇ and agrees that the Authorized Representative (or the Collateral Agent at the direction of the Authorized Representative) may take such actions on its behalf as is contemplated by the terms of such WC Intercreditor Agreement or such subordination agreement. In addition, each Purchase and the Authorized Representative acknowledge and agree that (a) the exercise of any rights and remedies of the Collateral Agent, the Authorized Representative and the Purchasers hereunder and under the other Note Documents as a secured creditor solely in respect of any Working Capital Priority Collateral shall be subject to such WC Intercreditor Agreement and (b) in the event of any conflict between the provisions of such WC Intercreditor Agreement and the provisions of this Agreement or the other Note Documents, the provisions of such WC Intercreditor Agreement shall govern.
(ii) The Authorized Representative is hereby authorized to enter into the ▇▇▇▇▇▇ Subordination Agreement, and each Purchaser agrees to be bound by the terms thereof and directs the Authorized Representative to enter into the ▇▇▇▇▇▇ Subordination Agreement on behalf of such Purchaser in connection with the ▇▇▇▇▇▇ Payment Obligations and agrees that the Authorized Representative may take such actions on its behalf as is contemplated by the terms of such ▇▇▇▇▇▇ Subordination Agreement.
\\4165-2766-4210 v2v5
The Person serving as the Authorized Representative hereunder shall have the same rights and powers in its capacity as a Purchaser as any other Purchaser and may exercise the same as though it were not the Authorized Representative, and the term “Purchaser,” “Purchasers,” “Required Majority Purchaser” or “Required Purchasers” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Authorized Representative hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with any Note Party or any Subsidiary or other Affiliate thereof as if such Person were not the Authorized Representative hereunder and without any duty to account therefor to the Purchasers.
The Authorized Representative shall not have any duties or obligations except those expressly set forth herein and in the other Note Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, the Authorized Representative (and any sub-agent thereof, including the Collateral Agent):
The Authorized Representative shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Majority Purchasers (or such other number or percentage of the Purchasers as shall be necessary) or (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and non-appealable judgment. The Authorized Representative shall be deemed not to have knowledge of any Default unless and until notice describing such Default is given in writing to the Authorized Representative by the Issuer, or a Purchaser.
\\4165-2766-4210 v2v5
The Authorized Representative shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Note Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Note Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article V or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Authorized Representative.
The Authorized Representative shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Authorized Representative also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the purchase of any Note, that by its terms must be fulfilled to the satisfaction of a Purchaser, the Authorized Representative may presume that such condition is satisfactory to such Purchaser unless the Authorized Representative shall have received notice to the contrary from such Purchaser prior to the purchase of such Note. The Authorized Representative may consult with legal counsel (who may be counsel for the Note Parties), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
The Authorized Representative may perform any and all of its duties and exercise its rights and powers hereunder or under any other Note Document by or through any one or more sub-agents appointed by the Authorized Representative (including the Collateral Agent appointed pursuant to the Collateral Agency and Intercreditor Agreement). The Authorized Representative and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Authorized Representative and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Authorized Representative. The Authorized Representative shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non-appealable judgment that the Authorized Representative acted with gross negligence or willful misconduct in the selection of such sub-agents.
The Authorized Representative may resign (or be removed by the Required Majority Purchasers) as Authorized Representative at any time by giving thirty (30) days advance notice thereof to the Purchasers and the Issuer and, thereafter, the retiring or removed Authorized Representative shall be discharged from its duties and obligations hereunder. Upon any such resignation or removal, the Required Majority Purchasers shall have the right, subject to the approval of the Issuer (so long as no Event of Default has occurred and is continuing; such approval not to be unreasonably withheld), to appoint a successor Authorized Representative. If no successor Authorized Representative shall have been so appointed by the
\\4165-2766-4210 v2v5
Required Majority Purchasers, been approved (so long as no Event of Default has occurred and is continuing) by the Issuer or have accepted such appointment within thirty (30) days after the Authorized Representative’s giving of notice of resignation or the Required Majority Purchasers’ giving of notice of removal, as applicable, then the Authorized Representative may, on behalf of the Purchasers, appoint a successor Authorized Representative reasonably acceptable to the Issuer (so long as no Default or Event of Default has occurred and is continuing). Upon the acceptance of any appointment as Authorized Representative hereunder by a successor Authorized Representative, such successor Authorized Representative shall thereupon succeed to and become vested with all rights, powers, privileges and duties of the retiring or removed Authorized Representative. After any retiring Authorized Representative’s resignation or removal hereunder as Authorized Representative, the provisions of this Section 11.06 shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as Authorized Representative. If no successor has accepted appointment as Authorized Representative by the date which is thirty (30) days following a retiring Authorized Representative’s notice of resignation or the Required Majority Purchasers’ giving of notice of removal, as applicable, the retiring Authorized Representative’s resignation or removal shall nevertheless thereupon become effective and the Required Majority Purchasers shall perform all of the duties of the Authorized Representative hereunder until such time, if any, as the Required Majority Purchasers appoint a successor agent as provided for above. In the event that a new Authorized Representative is appointed and such Authorized Representative is not an Affiliate of the holders of a majority in interest of the Notes, then the Issuer shall agree to pay to such Authorized Representative the fees and expenses (such fees to be payable annually in advance) that such Authorized Representative may reasonably request in connection with its appointment and service.
Each Purchaser acknowledges that it has, independently and without reliance upon the Authorized Representative or any other Purchaser or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Purchaser also acknowledges that it will, independently and without reliance upon the Authorized Representative or any other Purchaser or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Note Document or any related agreement or any document furnished hereunder or thereunder.
In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to any Note Party, the Authorized Representative (irrespective of whether the principal of any Note shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Collateral Agent shall have made any demand on the Issuer) shall be entitled and empowered, by intervention in such proceeding or otherwise:
\\4165-2766-4210 v2v5
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Purchaser to make such payments to the Authorized Representative and, in the event that the Authorized Representative shall consent to the making of such payments directly to the Purchasers, to pay to the Authorized Representative and Collateral Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Authorized Representative and Collateral Agent and its agents and counsel, and any other amounts due the Authorized Representative and the Collateral Agent under Section 12.04.
Nothing contained herein shall be deemed to authorize the Authorized Representative or the Collateral Agent to authorize or consent to or accept or adopt on behalf of any Purchaser any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Purchaser or to authorize the Authorized Representative or the Collateral Agent to vote in respect of the claim of any Purchaser in any such proceeding.
MISCELLANEOUS
No amendment or waiver of any provision of this Agreement or any other Note Document, and no consent to any departure by the Issuer or any other Note Party therefrom, shall be effective unless in writing signed by (i) (x) the Required Purchasers (or the Authorized Representative at the written direction of the Required Purchasers) or (y) with respect to any of Sections 2.07(e), 6.30, 7.11(i) and 9.01(p), the Required Majority Purchasers and (ii) the Issuer or the applicable Note Party, as the case may be, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, further, that:
\\4165-2766-4210 v2v5
it being agreed that all Purchasers shall be deemed to be directly and adversely affected by an amendment, waiver or supplement described in the preceding clause (iv), (v), (vi) or (vii); and
\\4165-2766-4210 v2v5
Notices and other communications sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices and other communications sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient). Notices and other communications delivered through electronic communications to the extent provided in subsection (b) below, shall be effective as provided in such subsection (b).
Unless the applicable recipient otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor; provided, that, for both clauses (i) and (ii), if such notice, email or other communication is not sent during the normal business hours of the recipient, such notice, email or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient.
\\4165-2766-4210 v2v5
No failure by any Purchaser, the Authorized Representative or the Collateral Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder or under any other Note Document shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided, and provided under each other Note Document, are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law. Subject to the Collateral Agency and Intercreditor Agreement, the First Lien Intercreditor Agreement and/or the First Lien/Second Lien Intercreditor Agreement, each Purchaser agrees that, except as otherwise provided in any of the Note Documents, it will not take any legal action or institute any action or proceeding against any Note Party with respect to any of the Obligations or Collateral, or accelerate or otherwise enforce its portion of the Obligations.
Subject to the Collateral Agency and Intercreditor Agreement, the First Lien Intercreditor Agreement and/or the First Lien/Second Lien Intercreditor Agreement, no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce any Guarantee of the Obligations, it being understood and agreed that all powers, rights and remedies under the Note Documents may be exercised solely by the Required Majority Purchasers (or, at the direction of the Required Majority Purchasers, the Authorized Representative and the Collateral Agent) on behalf of the Secured Parties in accordance with the terms hereby and thereof.
Notwithstanding anything to the contrary contained herein or in any other Note Document, but subject to the Collateral Agency and Intercreditor Agreement, the First Lien Intercreditor Agreement and/or the First Lien/Second Lien Intercreditor Agreement, the authority to enforce rights and remedies hereunder and under the other Note Documents against the Note Parties or any of them shall be vested exclusively in, and all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, the Required Majority Purchasers (or, at the direction of the Required Majority Purchasers, the Authorized Representative and the Collateral Agent) for the benefit of all the Secured Parties; provided, however, that the foregoing shall not prohibit (a) the Authorized Representative or the Collateral Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as the Authorized Representative or the Collateral Agent) hereunder and under the other Note Documents, (b) any Purchaser from exercising setoff rights in accordance with Section 12.08 (subject to the terms of Section 2.14), or (c) any Purchaser from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Note Party under any Debtor Relief Law.
Each Purchaser, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the Guarantees of the Obligations, to have agreed to the provisions of this Section.
\\4165-2766-4210 v2v5
\\4165-2766-4210 v2v5
None of the Collateral Agent, the Authorized Representative or the Purchasers shall be under any obligation to marshal any assets in favor of any Note Party or any other Person or against or in payment of any or all of the Obligations. To the extent that any payment by or on behalf of any Note Party is made to the Collateral Agent, the Authorized Representative or any Purchaser, or the Collateral Agent, the Authorized Representative or any Purchaser exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set
\\4165-2766-4210 v2v5
aside or required (including pursuant to any settlement entered into by the Collateral Agent, the Authorized Representative or such Purchaser in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then to the extent of such recovery, the obligation or part thereof originally intended to be satisfied, and all Liens, rights and remedies therefor or related thereto, shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred.
\\4165-2766-4210 v2v5
Any agreement or instrument pursuant to which a Purchaser sells such a participation shall provide that such Purchaser shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided, that, such agreement or instrument may provide that such Purchaser will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in clauses (i) through (vi) of Section 12.01(a) that affects such Participant. The Issuer agrees that each Participant shall be entitled to the benefits of Section 3.01 (subject to the requirements and limitations therein (it being understood that the documentation required under Section 3.01(c) shall be delivered to the participating Purchaser)) and Sections 10.01 and 10.02 to the same extent as if it were a Purchaser and had acquired its interest by assignment pursuant to paragraph (b) of this Section; provided, that, such Participant shall not be entitled to receive any greater payment under Section 3.01, 10.01 or 10.02, with respect to any participation, than the Purchaser from whom it acquired the applicable participation would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable
\\4165-2766-4210 v2v5
participation. To the fullest extent permitted by law, each Participant also shall be entitled to the benefits of Section 12.08 as though it were a Purchaser; provided, that, such Participant agrees to be subject to Section 2.14 as though it were a Purchaser. Each Purchaser that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Issuer, 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 Notes (the “Participant Register”); provided that no Purchaser 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 Note) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Treasury Regulations Section 5f.103-1(c). The entries in the Participant Register shall be conclusive absent manifest error, and such Purchaser shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
Each of the Authorized Representative and the Purchasers agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its Affiliates and to its Related Parties (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent required or requested by any regulatory authority purporting to have jurisdiction over such Person or its Related Parties (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) as may be reasonably necessary in connection with the exercise of any remedies hereunder or under any other Note Document or any action or proceeding relating to this Agreement or any other Note Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any Participant, assignee or transferee (or its Related Parties) of, or any prospective Participant, assignee or transferee (or its Related Parties) of, any of its rights and obligations under this Agreement or (ii) any actual or prospective party (or its Related Parties) to any swap, derivative or other transaction under which payments are to be made by reference to a Note Party and its obligations, this Agreement or payments hereunder, (g) on a confidential basis to (i) any rating agency in connection with rating the Issuer or their Subsidiaries or the Notes or (ii) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers or other market identifiers with respect to the Notes, (h) with the consent of the Issuer, (i) to the members of its investment committee (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (j) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section or (y) becomes available to the Authorized Representative, any Purchaser or any of their respective Affiliates on a nonconfidential basis from a source other than the Note Parties, (k) for purposes of establishing any defense available under securities laws, including, without limitation, establishing a “due diligence” defense or (l) to the extent independently developed by the Authorized Representative, a Purchaser or any of their respective Affiliates without reliance on the Information.
\\4165-2766-4210 v2v5
For purposes of this Section, “Information” means all information received from a Note Party or any Subsidiary relating to the Note Parties or any Subsidiary or any of their respective businesses, other than any such information that is available to the Authorized Representative or any Purchaser on a nonconfidential basis, provided, that, in the case of information received from a Note Party or any Subsidiary after the date hereof, such information is clearly identified at the time of delivery as confidential. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.
If an Event of Default shall have occurred and be continuing, subject to Collateral Agency and Intercreditor Agreement, the First Lien Intercreditor Agreement and/or the First Lien/Second Lien Intercreditor Agreement, each Purchaser and each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by such Purchaser or any such Affiliate to or for the credit or the account of the Issuer or any other Note Party against any and all of the obligations of the Issuer or such Note Party now or hereafter existing under this Agreement or any other Note Document to such Purchaser or its Affiliates, irrespective of whether or not such Purchaser or Affiliate shall have made any demand under this Agreement or any other Note Document and although such obligations of the Issuer or such Note Party may be contingent or unmatured or are owed to a branch office or Affiliate of such Purchaser different from the branch office or Affiliate holding such deposit or obligated on such indebtedness. The rights of each Purchaser and their respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Purchaser or their respective Affiliates may have. Each Purchaser agrees to notify the Issuer 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.
Notwithstanding anything to the contrary contained in any Note Document, the interest paid or agreed to be paid under the Note Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If any Purchaser shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Notes or, if it exceeds such unpaid principal, refunded to the Issuer. In determining whether the interest contracted for, charged, or received by the Authorized Representative or a Purchaser exceeds the Maximum Rate, such Person may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.
This Agreement and each of the other Note Documents may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement, the other Note Documents, the Equity Issuance Documents and any separate letter agreements with respect to fees payable to the Collateral Agent, constitute the entire contract among the parties relating to the subject matter hereof and supersede
\\4165-2766-4210 v2v5
any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Delivery of an executed counterpart of a signature page of this Agreement by fax transmission or e-mail transmission (e.g., “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Agreement or such other Note Documents or certificate. Without limiting the foregoing, to the extent a manually executed counterpart is not specifically required to be delivered under the terms of any LoanNote Document, upon the request of any party, such fax transmission or e-mail transmission shall be promptly followed by such manually executed counterpart.
All representations and warranties made by any Note Party hereunder and in any other Note Document or Equity Issuance Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof and shall continue in full force and effect as long as any Note or other Obligation hereunder shall remain unpaid or unsatisfied. Such representations and warranties have been or will be relied upon by the Authorized Representative, the Collateral Agent and each Purchaser, regardless of any investigation made by the Authorized Representative, the Collateral Agent or any Purchaser or on their behalf and notwithstanding that the Authorized Representative, the Collateral Agent or any Purchaser may have had notice or knowledge of any Default at the time of any purchase of the Notes, and shall continue in full force and effect as long as any Note or any other Obligation hereunder shall remain unpaid or unsatisfied.
If any provision of this Agreement or the other Note Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement and the other Note Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
\\4165-2766-4210 v2v5
\\4165-2766-4210 v2v5
This Agreement and any document, amendment, approval, consent, information, notice, certificate, request, statement, disclosure or authorization related to this Agreement (each a “Communication”), including Communications required to be in writing, may be in the form of an Electronic Record and may be executed using Electronic Signatures. Each of the Note Parties agrees that any Electronic Signature on or associated with any Communication shall be valid and binding on each of the Note Parties to the same extent as a manual, original signature, and that any Communication entered into by Electronic Signature, will constitute the legal, valid and binding obligation of each of the Note Parties enforceable against such in accordance with the terms thereof to the same extent as if a manually executed original signature was delivered. Any Communication may be executed in as many counterparts as necessary or convenient, including both paper and electronic counterparts, but all such counterparts are one and the same Communication. For the avoidance of doubt, the authorization under this paragraph may include, without limitation, use or acceptance by the Authorized Representative, the Collateral Agent and each of the Purchasers of a manually signed paper Communication which has been converted into electronic form (such as scanned into PDF format), or an electronically signed Communication converted into another format, for transmission, delivery and/or retention. The Authorized Representative, the Collateral Agent and each of the Purchasers may, at its option, create one or more copies of any Communication in the form of an imaged Electronic Record (“Electronic Copy”), which shall be deemed created in the ordinary course of such Person’s business, and destroy the original paper document. All Communications in the form of an Electronic Record, including an Electronic Copy, shall be considered an original for all purposes, and shall have the same legal effect, validity and enforceability as a paper record. Notwithstanding anything contained herein to the contrary, the Authorized Representative is under no obligation to accept an Electronic Signature in any form or in any format unless expressly agreed to by the Authorized Representative pursuant to procedures approved by it; provided, further, without limiting the foregoing, (a) to the extent the Authorized Representative has agreed to accept such Electronic Signature, the Authorized Representative, the Collateral Agent and each of the Purchasers shall be entitled to rely on any such Electronic Signature purportedly given by or on behalf of any Note Party without further verification and (b) upon the request of the Authorized Representative, the Collateral Agent or any Purchaser, any Electronic Signature shall be promptly followed by such manually executed counterpart. For purposes hereof, “Electronic Record” and “Electronic Signature” shall have the meanings assigned to them, respectively, by 15 USC §7006, as it may be amended from time to time.
Each Purchaser that is subject to the PATRIOT Act and the Authorized Representative (for itself and not on behalf of any Purchaser) hereby notifies the Issuer that pursuant to the requirements of the PATRIOT Act, it is required to obtain, verify and record information that identifies each Note Party, which
\\4165-2766-4210 v2v5
information includes the name and address of each Note Party and other information that will allow such Purchaser or the Authorized Representative, as applicable, to identify each Note Party in accordance with the PATRIOT Act. The Issuer agrees to (and agrees to cause each Note Party to), promptly following a request by the Authorized Representative or any Purchaser, provide all such other documentation and information that the Authorized Representative or such Purchaser requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act.
In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Note Document), each of the Note Parties acknowledges and agrees, and acknowledges their Affiliates’ understanding, that: (a)(i) the arranging and other services regarding this Agreement provided by the Authorized Representative and its Affiliates, and the Purchasers are arm’s-length commercial transactions between the Note Parties and their Affiliates, on the one hand, and the Authorized Representative and its Affiliates and the Purchasers on the other hand, (ii) the Note Parties have consulted their own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (iii) is the Note Parties are capable of evaluating, and understand and accept, the terms, risks and conditions of the transactions contemplated hereby and by the other Note Documents; (b)(i) the Authorized Representative and its Affiliates and each Purchaser is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not and will not be acting as an advisor, agent or fiduciary, for the Note Parties or any of their Affiliates or any other Person and (ii) neither the Authorized Representative nor any Purchaser has any obligation to the Note Parties or any of their Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Note Documents; and (c) the Authorized Representative and its Affiliates and the Purchasers and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Issuer and their Affiliates, and neither the Authorized Representative or its Affiliates nor any Purchaser has any obligation to disclose any of such interests to the Issuer or their Affiliates. To the fullest extent permitted by law, the Note Parties hereby waive and release, any claims that they may have against the Authorized Representative or its Affiliates or any Purchaser with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.
Notwithstanding anything to the contrary in any Note Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Purchaser that is an EEA Financial Institution arising under any Note Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by (a) the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any Purchaser 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 EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Note Document; or (iii) the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution Authority.
\\4165-2766-4210 v2v5
Notwithstanding anything to the contrary contained herein or in any other Note Document, (a) in the event of any conflict or inconsistency between this Agreement and any other Note Document (other than the Collateral Agency and Intercreditor Agreement, the First Lien Intercreditor Agreement or the First Lien/Second Lien Intercreditor Agreement), the terms of this Agreement shall govern and control, (b) in the event of any conflict or inconsistency between the Collateral Agency and Intercreditor Agreement and any other Note Documents (including this Agreement, but excluding the First Lien Intercreditor Agreement), the terms of the Collateral Agency and Intercreditor Agreement shall govern and control and (c) in the event of any conflict or inconsistency between the First Lien Intercreditor Agreement or the First Lien/Second Lien Intercreditor Agreement and any other Note Documents (including this Agreement and the Collateral Agency and Intercreditor Agreement), the terms of the First Lien Intercreditor Agreement and the First Lien/Second Lien Intercreditor Agreement shall govern and control. Each Note Party expressly acknowledges the terms in each of the Collateral Agency and Intercreditor Agreement and the First Lien Intercreditor Agreement and the rights granted to the Collateral Agent, the Authorized Representative and each Purchaser therein.
The Purchasers irrevocably authorize the Authorized Representative, and upon the written request of the Issuer, the Authorized Representative agrees:
Upon request by the Authorized Representative at any time, the Required Majority Purchasers will confirm in writing the Authorized Representative’s authority to release (or instruct the Collateral Agent to release) its interest in particular types or items of property, or any Guarantor from its obligations under the Guaranty, pursuant to this Section 12.21. At any time that a Note Party desires the Authorized Representative to take any action pursuant to this Section 12.21, such Note Party shall deliver a certificate signed by a Responsible Officer of such Note Party stating that the action is permitted pursuant to this Section 12.21 and the terms of this Agreement.
The Authorized Representative (or any sub-agent acting on its behalf, including the Collateral Agent) shall not be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of the Collateral Agent’s Lien thereon, or any certificate prepared by any Note Party in connection therewith, nor
\\4165-2766-4210 v2v5
shall the Authorized Representative (or any sub-agent acting on its behalf, including the Collateral Agent) be responsible or liable to the Purchasers for any failure to monitor or maintain any portion of the Collateral.
The parties hereto agree (a) that the Notes shall be treated as indebtedness for U.S. federal income and other applicable income tax purposes and the Notes shall not be treated as “contingent payment debt instruments” under Section 1.1275 4 of the Treasury Regulations (or any corresponding provision of state or local income tax law) and (b) to file all U.S. federal income, state income and franchise tax returns in a manner consistent with clause (a).
\\4165-2766-4210 v2v5
Each Existing Noteholder hereby consents to the amendment of the Third Amended and Restated Certificated of Incorporation of the Issuer by the Fourth Amended and Restated Certificate of Incorporation of the Issuer in the form attached hereto as Exhibit E and the filing thereof with the Secretary of State of the State of Delaware.
12.26 BP Subordination Agreement. Each of BPC Lending II LLC and any other holder of the BP Notes agrees that it shall not amend, modify or change the BP Subordination Agreement in any manner adverse to the interests of Lockheed ▇▇▇▇▇▇ or any other holder of the LM Notes without the prior written consent (not to be unreasonably withheld) of Lockheed ▇▇▇▇▇▇ and any other holder of the LM Notes.
12.27 No Personal Obligations. Notwithstanding anything to the contrary contained herein or in any other Note Document, it is expressly understood and the Purchasers expressly agree that nothing contained herein or in any other Note Document or in any other document contemplated hereby or thereby (whether from a covenant, representation, warranty or other provision herein or therein) shall create, or be construed as creating, any personal liability of any stockholder, director, officer, member, partner, manager or employee of any of the Note Parties and their respective Subsidiaries in such Person’s capacity as such, with respect to (a) any payment obligation of any of the Note Parties or any of their respective Subsidiaries, (b) any obligation of the Note Parties or any of their respective Subsidiaries to perform any covenant, undertaking, indemnification or agreement, either express or implied, contained herein or in any other Note Document, (c) any representation or warranty contained herein or any other Note Document, (d) any other claim or liability to the Purchasers under or arising under this Agreement or any other Note Document or in any other document contemplated hereby or thereby, or (e) any credit extended or loan made; provided that nothing herein shall be deemed to be a waiver of claims arising from fraud.
[SIGNATURE PAGES ON FILE WITH THE AUTHORIZED REPRESENTATIVE]
\\4165-2766-4210 v2v5