添付ファイル10.1
実行バージョン
クレジット契約の第 3 修正案
2024 年 10 月 4 日時点
そのうち
エロビロンメンツ株式会社
借り手として
保証人パーティー Hereto，
ノースカロライナ州アメリカ銀行は
管理代理人、スイングライン貸し手および L / C 発行者として、
その他の L / C 発行者当社は、
そして
貸し手 （ 新貸し手を含む ） パーティー HERETO
アメリカの銀行証券会社は
モルガン·チェース銀行N.A
そして
アメリカ銀行全国協会は
共同リード · アレンジング · 共同ブックランナーとして
第 3 次 改正 施行 日から 、 当事 者は 以下の ことに 合意 します 。 （ i ） 既存の 信用 契約 は 、 （ i ） 削除 された テキスト （ 以 下の 例 と同じ 方法で テキスト 的に 示 される ） を 削除 するために ここに 改正 されます 。
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あるいは…
削除されたテキスト
） 、 （ ii ） 太 字 で 下 線 付き の テキスト を追加 します （ 次の 例 と同じ 方法で テキスト 的に 示 されます ） 。 二重下線付きのテキスト または 二重下線付きのテキスト（ 略 称 は “ 信 託 契約 書 ” ） 。 添付ファイルA (the既存の 信用 契約 、 以下 に 定 める 改正 添付ファイルA 添 付 は こちら > >
改訂された信用協定
”);（ ii ） 既存の 信用 契約 の スケ ジュール 1.0 1 （ a ） 、 1.0 1 （ b ） 、 1.0 1 （ c ） 、 5. 18 （ a ） 、 5. 18 （ b ） 、 5. 19 （ b ） 、 5. 19 （ c ） 、 5. 19 （ d ） 、 7. 0 1 、 7. 0 2 及び 7. 0 3 は 、 ここに 添 付 された 様 式 で 読み 取 られる ように 修正 される 。 ス ケ ジュール 1. 01 （ a ）そして、そして
既存の 信用 契約 の 付 属 書 A 億 、 D 、 E 、 F 及び G は 、 ここに 添 付 された 様 式 で 次のように 読み 取 られる ように ここに 修正 される 。
展示品 A
1. そして .
(a) 本 契約 の 各 当事 者は 、 本 契約 の 相手 が 上 記の 最初に 書かれた 日に 正式に 実行 され 、 配 達 される ように しました 。借款人航空環境会社デラウェア州の会社投稿者： / s / ケ ビン · マ ク ド ネル 名前 ：ケ ヴィ ン · マ ク ド ネルタイトル ：上級副社長と首席財務官保証人, 1.01(b), 1.01(c), 5.18(a), 5.18(b), 5.19(b), 5.19(c), 5.19(d), 7.01, 7.02AR CT UR US U AV 株式 会社7.03カ リ フォルニア の 企業投稿者：, B, D, E, F G/ s / クリス ティー · ベ ン ソン
(b)
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(c)
(d)名前 ：クリス ティ · ベ ン ソンタイトル ：副 社長 、 最高 財務 責任 者 、 財務 担当 者株式 会社 ト マ ハ ーク ロボ ティ クスデラウェア州の会社投稿者： .
(e)/ s / クリス ティ · ベ ン ソン
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名前 ：
(f)クリス ティ · ベ ン ソン
2.タイトル ：財務官兼最高財務責任者
(a)
(b)
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(c)航空環境会社
(d)ク レ ジット 協定 の 第 3 修正 案
(e)
(f)行政代理
(g)ノースカロライナ州アメリカ銀行は
(h)管理エージェントとして
(i)投稿者：
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/ s / ロー ズ · ト マス
(j) (i)名前 ：
(k)ロー ズ · ト ーマ ス
(l)タイトル ：
(m)総裁補佐官
航空環境会社
3.ク レ ジット 協定 の 第 3 修正 案 .
(a)
(b)借出人
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ノースカロライナ州アメリカ銀行は
(c)貸 し 手 、 ス イング ライン 貸 し 手 、 および L / C 発行 者として
(d)投稿者：
(e) / s / ジェ ニ ファー ヤ ン ,
(f)名前 ： ジェ ニ ファー · ヤ ン
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役 職 ： 上 級 副 社長
(g)
(h) 航空環境会社ク レ ジット 協定 の 第 3 修正 案
モルガン·チェース銀行N.A
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投稿者：
/ s / マイ ケル · マ スト ロ ニ コ ラス: | , |
名前 ： マイ ケル · マ スト ロ ニ コ ラスタイトル ： 副 社長
航空環境会社
ク レ ディ ット 契約 の 第 3 修正
アメリカ銀行全国協会は: | 貸金人として |
投稿者：
/ s / ジャ ミル · チョ ウ ジュ リー
名前 ： ジャ ミ ル · チョ ウ ジュ リー
タイトル ： 副 社長
航空環境会社
ク レ ジット 契約 の 第 3 修正 案 シティバンクノースカロライナ州貸金人として投稿者：
/ s / ハ ンス · リン
信用協定
日付：2021年2月19日
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そのうち
エロビロンメンツ株式会社: | 借り手として |
借り手当事者の特定の子会社 HERETO，
保証人として、ノースカロライナ州アメリカ銀行は管理代理人、スイングライン貸し手および L / C 発行者として、その他の L / C 発行者当社は、そして本契約の貸手アメリカの銀行証券会社は
モルガン·チェース銀行N.Aそして
アメリカ銀行全国協会は共同リード · アレンジング · 共同ブックランナーとして
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目次表: | ページ |
第 1 条定義及び会計条件
定義された用語。その他の解釈条項。会計用語。
ラウンド。
信用状の金額。
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UCC の用語。
金利です。
第 2 条コミットメントと信用の延長ローン。借入、転換、融資の継続。
信用状。
Swinglineローン会社です。
前払金。
コミットメントの終了または削減。
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ローンを返済する。
利息と違約率。
料金を取ります。利子と手数料の計算、適用レートの遡及的調整。負債の証拠。
管理者の返済、管理者の返済。
貸手が分担して支払う。
現金担保。
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約束を破った貸金人。
第 3 条税金、収益保護及び違法性
税金です。違法だ。料金を決定できない。
コストが増えました。
損失の補償。
貸し手の交換、貸し手の交換。
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生きる。
第 4 条クレジット延長に先行する条件
初期信用展示期間条件
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第 5 条表明と保証
存在、資格、権力。
承認； 違反なし。
政府の承認； その他の同意。
制約効果。
財務諸表、重大な悪影響なし。
訴訟を起こす。
デフォルト無し。
財産の所有者。
環境コンプライアンス。
保険です。
税金です。
ST
） 当該コンプライアンス証明書の交付日の翌営業日 セクション 6.0 2 （ a ）
この基準に従って適用される適用レートは、 | （ b ） 項 |
当該コンプライアンス証明書に記載されている連結レバレッジ比率の算出に基づいて調整します。 本条に基づく適用レート （ b ） 項
事実上、 | 終業する |
修正第 3 条発効 初日までの日付 （ 1 ）
ST） コンプライアンス証明書の交付日の翌営業日
セクション 6.0 2 （ a ）） 貸出当事者又は子会社の口座に対して二国間信用状を発行する時点で、貸出者又は貸出者の関連会社であること、又は （
） 当時は（ またはその関連会社 ） が貸し手となり、貸し手または子会社の口座のための二国間信用状の発行者となる。（ 当該者が貸し手であることを終了した場合、または当該者の関連会社が貸し手であることを終了した場合であっても ） 。提供すると、管理代理人が決定した任意の日に、「担保付き二国間信用状」として含める二国間信用状について、適用される二国間信用状発行者 （ 管理代理人または管理代理人の関連会社を除く ） が、担保当事者指定通知書を提出しなければならない。 管理代理人以前の
そのような決定の日付。アメリカ銀行証券「 BofA Securities， Inc. 」を意味する。借款人
“は、本プロトコル導言セグメントに規定されている意味を有する。借り手資料」の意味は、 第6.02節
借金をする「回転借入、スイングライン借入、または インクリメンタル
文脈が必要とする場合、長期借用。
平日“商業銀行は、土曜日、日曜日、または他の日を除いたいずれかの日を意味し、商業銀行は、行政代理オフィス所在地州の法律に従って閉鎖されることが許可されているか、または実際にその州で閉鎖されている。
資本支出“誰の場合も、任意の期間に任意の固定資産または資本資産を購入または他の方法で取得する任意の支出(現在のトラフィックに適切に計上された通常の交換および修理を含まない)を意味する。
第(A)条あるいは…
この定義に準拠し、親との統合監督の対象となります。
欧州経済圏加盟国“EUのどの加盟国、アイスランド、リヒテンシュタイン、ノルウェーを指す。
EEA決議権限機関“欧州経済圏加盟国の任意の公共行政当局または任意の欧州経済区金融機関の決議を担当する任意の人(任意の受託者を含む)を意味する。
電子版」の意味は、
第十一十八条電子記録
^ “15 U. S.C. においてこの用語に割り当てられた意味がある。^ a b c d e f g h i f g電子署名
^ “15 U. S.C. においてこの用語に割り当てられた意味がある。第 7006 章。対象資産
「借入者およびその子会社が従事していた事業と同じまたは関連する事業ラインで使用または有用な資産 （ GAAP による流動資産を除く ） を意味します。
保証人
以下の各人を指す：(A)本契約調印ページにおいて“保証人”の項で決定された各人をいう。(B)借入者は、次の規定により時々保証人又は保証人となる可能性のある各国内子会社をいう第 6.12 節(C)(I)任意の借入先または任意の付属会社が不足している追加保証債務について、および(Ii)借地先を指定する任意の交換債務(発効前に決定)
第十百九十一条
そして )保証書によると、借り手いかなる特別な目的の実体も保証人になることを要求してはならない保証する」とは、共同で、保証者が下に置いた保証を意味する。 第十条”);
担保当事者に有利に、お互いの保証とともに、に従って提供されます 第 6.12 節危険材料
石油または石油蒸留物、天然ガス、天然ガス液体、アスベストまたはアスベスト含有材料、ポリ塩化ビフェニル、ガス、有毒カビ、感染症または医療廃棄物およびすべての他の物質、廃棄物、化学品、汚染物質、汚染物質、または任意の性質の任意の物質または化合物を含む、すべての爆発性または放射性物質または廃棄物およびすべての危険または有毒物質、廃棄物または他の汚染物質を意味する。
ヘッジ銀行
“誰でも交換契約当事者として、(A)貸金先又は付属会社と本契約により禁止されていない互換契約を締結した場合、貸手又は貸手の関連会社であるか、又は(B)その(又はその関連会社)が貸手となったとき、貸手又は付属会社と本契約により禁止されていない互換契約の一方であり、いずれの場合も、その者が貸手又はその者の関連会社でなくても、同様であるI
停止しました
貸し手になりました
“「各 L / C 発行者に関して、当該 L / C 発行者が信用状を発行する約束を意味します。 ザ 初期
“修正第 3 条の施行日 定められた
“別表1.01(B) または、 L / C 発行者が L / C 発行者になる場合 終業する(b) 修正第 3 条発効 日付は、登記簿における L / C コミットメントとして、そのような L / C 発行者に記載されています。 L / C 発行者の L / C コミットメントは、当該 L / C 発行者と借り手との間の合意により、管理代理人に通知することにより、随時変更することができます。 L / C クレジット延長, “任意の信用状については、信用状の発行または有効期限の延長、または金額の増加を意味する。L / C の支払
“「信用状に基づく L / C 発行者による支払いを意味します。L / C の発行者
“「 （ a ） 信用状の発行者としてのバンク · オブ · アメリカ、 （ b ） 貸し手が本契約に従って選択した他の貸し手 セクション 2.0 3 （ s ） 信用状を発行する際には （提供
“4.01節貸し付け金
““貸主が次の条項に基づいて借主に信用を提供すること第二条
“ 形式で インクリメンタル
“ タームローン、回転ローンまたはスイングラインローン。貸付文書
“「本契約、各手形、保証、各担保文書、手数料書簡、各発行者文書、各契約、「貸付文書」として指定される各契約、文書または文書、および現金担保の権利を創設または完備する各契約をいう。 第2.14節
ローン通知i（ a ） 借入、 （ b ） 借入の種類から他の種類への転換の通知をいう。 ii第二百二十二条第一項， または （ c ） 定期 SOFR ローンの継続 第二百二十二条第一項実質的に、 “任意の貸主がいかなる同意、免除または改正も承認しないことを意味し、この同意、免除または改正は、(A)すべての貸主または影響を受けたすべての貸主に根拠を要求するものである第十一条第一条， および （ b ） 必要な貸し手によって承認されています。違約貸金人ではない「当時は、債務不履行の貸し手でない各貸し手」を意味します。
“通知期日を延期しない」の意味は、 第 2.0 3 条 （ b ） （ ii ）非払い戻しのお知らせ」の意味は、 :
PTE「米国労働省が発行した禁止取引クラスの免除を意味し、そのような免除は随時修正される可能性があるため、公的貸し手」の意味は、 第6.02節QFC;
QFCクレジットサポート, 受取人「管理代理人、貸し手、 L / C 発行者、または本契約に基づく貸付当事者の義務によって行われる支払いの他の受領者を意味します。変更日「無形子会社」の定義に定める意味を持つ。登録する」の意味は、 セクション 11.0 6 （ c ）ルールU“とは、時々施行される”連邦法規“U規則と、その規則またはそれに基づいて行われるすべての公式裁決および解釈を意味する。関連先」とは、いかなる個人に関して、当該個人および当該個人関連会社のパートナー、取締役、役員、従業員、代理人、受託者、管理者、マネージャー、アドバイザー、コンサルタント、サービス提供者、および当該個人および当該個人関連会社の代表者を意味します。発表する“とは、排出、オーバーフロー、排出、排出、堆積、処置、漏れ、ポンプ、注入、排出、注入または濾過、または任意の建物、構築物または施設からのアクセス、任意の建物、構築物または施設を通る任意の放出、オーバーフロー、排出、堆積、処分、漏れ、揚水、傾倒、傾倒、傾斜を意味する。削除有効日」の意味は、 第9.06節報告可能な事件「 30 日間の通知期間が免除された事象を除く、 ERISA のセクション 4043 （ c ） に定める事象を意味する。クレジット延長の申請（ a ） に関する (c)当時のスイングラインローンの参加。回転施設「回転債務」とは、その時点における回転債務者の回転債務の総額をいう。回転施設満期IIV“という意味です2 月 19 日10 月 4 日に提供.
“それは当該日が営業日でない場合は、回転設備満期日が直前の営業日とする。
“循環融資機関「 （ a ） 回転コミットメントがその時点で有効である限り、その時点で回転コミットメントを有する者、または （ b ） 回転コミットメントがその時点で終了または満了している場合、その時点で回転ローンまたは L / C 債務またはスイングラインローンへの参加を有する者を意味します。循環ローン」の意味は、 セクション 2.0 1 （ b ）スタンダード(S&P)
““という意味ですスタンダード & プアーズ金融サービス有限责任公司
“S & P グローバル · レーティング、事業 S & P Global Inc.そしてその後継者。
“第2.04節揺動線約束「スウィングライン貸し手」は、スウィングライン貸し手によるスウィングライン貸付の約束を意味します。 ザ 初期 スイングラインコミットメントの額 修正第 3 条発効時
“ 日取り
“別表1.01(B).スウィングラインコミットメントは、スウィングライン貸し手と借り手の間の合意により、管理代理人に通知することにより、随時変更されることがあります。20202024Swingline貸出機関
“Swingline融資提供者である米国銀行，または本プロトコル項のいずれかの継承者Swingline融資者を指す.Swinglineローン」の意味は、 .
“第 2.0 4 節 （ a ）スウィングラインローンのお知らせ「 Swingline Borrowing の通知」を意味する。 第 2.0 4 節 （ b ）実質的に、 ; あるいは…, 第六十一条第二項当該計量期間の債権者およびその子会社の連結収益の 5% （ 5% ） を超える収益。.
““この条例における当該等の完璧、完璧又は不完全な効力又は優先権に関する条文については、当該他の司法管轄区域内で時々有効な統一商法をいう。UCP“国際商会第600号出版物”および単信用状統一慣例“(または適用時間に施行されるより新しいバージョン)を意味する。イギリス金融機関「 BRRD 事業者 （ 当該用語は、英国プルーデンス規制当局によって公布された PRA ルールブック （ 随時修正 ） において定義される ） または FCA ハンドブック （ 随時修正 ） の IFPRU 11.6 の対象者を指します。 1.00% ; 特定の信用機関および投資会社、およびそのような信用機関または投資会社の特定の関連会社を含む、英国金融行動局によって公布されます。, イギリス決議機関「英国銀行またはその他の公的行政機関が、英国の金融機関の解決に責任を負うことを意味します。アメリカ合衆国“と”アメリカです。“アメリカ合衆国のことです。(b)未精算金額」の意味は、 セクション 2.0 3 （ f ）
“アメリカ政府証券営業日“どんなことでもa営業日、営業日を除く。（ a ） 土曜日、 （ b ） 日曜日または （ c ） 日曜日を除く日
“ 証券業金融市場協会、ニューヨーク証券取引所またはニューヨーク連邦準備銀行は、当該日がアメリカ合衆国連邦法またはニューヨーク州の法律 （ 適用される場合 ） に基づく法定祝日であるため、営業を休めます。
“米国政府証券の取引のためにメンバーの債券部門を一日中閉鎖することを勧告していますアメリカ人
“「米国法典第 7701 条 （a） 項 （ 30 ） で定義される「米国人」を意味する。アメリカ特別決議制度
“[予約] 。支払いの運用
“. 各前払いは セクション 2.0 5 （ b ） （ i ）
“あるいは…セクション 2.0 5 （ b ） （ ii ） 適用される。 .
“， 当時の既存期間 A ローンの元本返済分割払いに満期順の逆順序 ， 二番目a， 未払いのスイングラインローンに ， そして 第三に
“， 未払いの回転ローン （ 回転ファシリティの対応する恒久的な削減なし ） 。 Subject to 第2.15節
“このような前払いは、貸主それぞれに適用される融資に関するパーセンテージに応じて貸主に支払われなければならない。[予約] 。
“8.02節[予約] 。
“支払日元の償却金（ 決算日における先行2021 年 6 月2021 年 9 月2021 年 12 月2022 年 3 月2022 年 6 月2022 年 9 月2022 年 12 月2023 年 3 月2023 年 6 月2023 年 9 月
“2023 年 12 月2024 年 3 月2024 年 6 月, 2024 年 9 月2024 年 12 月2025 年 3 月2025 年 6 月2025 年 9 月, (b)12 月， 2025(c)期間 A 施設満期
循環ローン. 借り手は、回転貸し手に対し、回転貸し手に対して、回転貸し手満期日に、当該日における未払い回転貸し手全額の総額を返済するものとする。Swinglineローン. 借り手は、各スイングラインローンの （ i ） スイングラインローンの発行後十 （ 10 ） 営業日、および （ ii ） 回転ファシリティ満期日のいずれか早い日に返済するものとします。 .
“金利とデフォルトレート利子. の規定に従う。 セクション 2.0 8 （ b ）（ i ） 各期間の SOFR ローンは、適用可能な借入日から各利息期間の未払い元本額について、当該利息期間の期間の SOFR に等しい年率で利息を負担するものとする。 追加する, あるいは貸手の根拠のように第3.02節貸し手または L / C 発行者は、貸し手の要請により、該当する場合には、本契約に基づく融資の資金調達または予約のために別の貸し出し事務所を指定し、または本契約に基づく権利および義務を他の事務所、支店または関連会社に譲渡するために合理的な努力を行います。このような指定または譲渡 （ i ） は、 3.01節あるいは…
“第3.04節または以下の規定により通知の必要を解消する
“第3.02節（ ii ） 該当する場合、および （ ii ） それぞれの場合において、当該貸し手または当該 L / C 発行者 （ 場合によっては ） に未払い費用または経費を負わせず、その他の場合において当該貸し手または当該 L / C 発行者に不利な影響を与えないこと。 借り手は、かかる指定または譲渡に関連して、貸し手または信用証券発行者が発生するすべての合理的な費用および費用を支払うことに同意します。
“貸手をとりかえる. 貸し手が補償を請求した場合 第3.04節, または、借り手が、任意の貸手または任意の政府当局に、任意の貸手の口座に記入するために、任意の支払税または追加金を支払わなければならない場合3.01節
“ 当該貸し手が、各場合において、異なる貸し出し事務所を指定することを拒否または指定することができない場合。 第 3.0 6 条 （ a ）
“修正第 3 条施行日以前の直近の日付） その預金口座に保有されているもの及び当該口座が除外口座であるか否か、及び有価証券口座の場合には、有価証券仲介者又は発行者及び時価額 （ 当年現在 ）
“2021 年 01 月 31 日修正第 3 条施行日以前の直近の日付
“. Set up on スケジュール 5.19 （ d ）
“修正第 3 条発効 日付は、貸付当事者が所有またはリースしている米国内にあるすべての不動産のリストです （ 各場合において、 （ i ） そのような不動産を所有 （ またはリース ） する貸付当事者の名前、 （ ii ） を含む ） 。
“あるいは… (or最初の納品前に発生した決定について 財務諸表は 第 6.0 1 条 （ a ）
“あるいは…私たちは
“参照して決定された プロフォーム財務諸表 ）
“負債.負債直接的または間接的に債務を作成し、発生し、仮定し、または存在することを受ける。貸付書類に基づく負債；, 負債残高 終業する
“修正第 3 条発効 日付と掲載日 スケジュール 7.0 2 (and許可された再融資 ） 。
“ 固定資産の購入資金を調達し、または資産の購入価格または建設費用の全部または一部を提供するために発生したキャピタライズドリース、合成リース債務および購入金債務、並びに更新、交換、リファイナンスおよび延長に関する負債。 a提供第7.02節
“基本的変更は 第7.04節、および支払いを制限する範囲 .
“第7.06節 (inそれぞれの場合、これ以外は 第7.03節.).
“疑いを回避するため、合弁会社または少数株主 （ 買収を除く ） への投資を含む追加投資 （ 買収を除く ） 。これらの投資の合計額は利用可能な金額を超えない。 提供それは.
“（ i ） そのような投資にプロフォーム効果を与えるとき、 貸付当事者は .
“金融協定の遵守は 第7.11節
“ 借り手が財務諸表を提出する必要があった借り手の直近の会計四半期において 第 6.0 1 条 （ a ）あるいは…
“それは本条の前述の規定にもかかわらず
“第7.04節， しかし、条件に従って
“セクション 6.12 そして
“： （ a ） 借り手は、その子会社と合併または統合することができます。 提供それは（ b ） 貸出当事者 （ 貸出当事者以外の ） は、他の貸出当事者 （ 貸出当事者以外の ） と合併または統合することができます。 （ c ） 貸出当事者でない子会社は、貸出当事者との合併または統合することができます。 提供それは（ d ） 貸出当事者でない子会社は、貸出当事者でない他の子会社と合併または統合することができる。 （ e ） 借り手および子会社は、下記に従って許可される処分を行うことができる。 第7.05節， に基づいて許可される投資 第7.03節, ， または、に従って許可される制限された支払 第7.06節 (inこれを参照すること以外は 第7.04節これらの間の割合は、本文書に記載されているそれぞれの金額に比例する第 2 節
第三に貸出者と貸出者の間で、貸出書に記載されているそれぞれの金額に比例して配分可能な、貸出書、貸出書および貸出書文書に基づいて生じる貸出書手数料および利息の発生および未払いを構成する担保債務のその部分の支払。 第 3 項 支払われるもの第四に， 貸付金の未払い元本を構成する担保債務のその部分の支払、 L / C 支出 そして 担保ヘッジ契約に基づく担保債務 そして セキュアキャッシュマネジメント契約および , 担保された二国間信用状、及び L / C 発行者の勘定のための管理代理人に、信用状の未引出総額からなる L / C 債務の部分を、要求される範囲で現金担保すること、および他の方法で借り手が現金担保すること、 セクション 2.03 そして ， それぞれの場合、行政代理人、貸し手、 L / C 発行者、 セキュリティー ヘッジバンク二国間信用状と担保状 管理代理人が、当該管理代理人が要求する書類とともに、当該キャッシュマネジメントバンクから被担保者指定通知を受領していない場合には、上記の申請から除外するものとする。あるいは… 該当するヘッジ銀行 または適用される二国間信用状 L / C 発行者, その場合も同様です。 各々 セキュリティー キャッシュマネジメントバンクあるいは…， 各セキュア; ヘッジバンク 担保二国間信用状の L / C 発行者
“この協定の当事者ではない そして前項の通知をした者は、その通知により、管理代理人の任命を承認し、受諾したものとみなす。 第9条 自身とその関係者は、「貸し手」のように、ここにいます。 記事内容 行政代理主管当局に委任する、当該契約または文書は、当該貸し手が、参加者の同意なしに、第 1 条項に記載されているいかなる修正、放棄またはその他の変更にも同意しないことを規定することができます。 第十一条第一条 その参加者に影響します。 借り手は、各参加者が以下の利益を受ける権利を有することに同意します。 3.01節 そして ; （ 下記の要件を含む、その要件および制限に従う。 , セクション 3.0 1 （ f ） (it必要な書類は 第 3.0 1 節 （ f ） 貸し手であり、譲渡によってその利息を取得した場合と同じ範囲で、参加を売却する貸し手に引き渡されなければならない ） 。 (B)セクション 11.0 6 （ b ）提供それは， そのような参加者 （ A ） は、以下の規定に従うことに同意します。 セクション 3.06 そして まるで譲受人であったかのように セクション 11.0 6 （ b ）（ B ） より大きな支払いを受ける権利がない。 (B)3.01節
概 要 報告書 ： (B)リ テ ラ Word の 比較11.9.1.1文書 比較 10 / 9 / 2024 7： 56 ： 51 PMスタイル 名 ： MV AS etイン テ リ ジェ ント な テー ブルの 比較 ： 活動中オ リ ジ ナル D MS ： iw ： / /mva.cloudimanage.com/MVALIB/13743030/1修正 D MS ： iw ： / /mva.cloudimanage.com/MVALIB/13743030/2(B)変更 ： 追加 削除 .
“テーブルはテーブルの移動埋め込みグラフィック （ Visio 、 ChemDraw 、画像など ）埋め 込み Excel フォーマット変更総 変更 数 ： .
“
“別表1.01(A)行政代理人事務所； 通知のための特定の住所
“借り手または他の融資当事者への場合エアロビロネンメント株式会社900 イ ノ ベ ーター ズ · ウェイ, シ ミ バ レー ， CA 9 30 6 5
電話 番号 ： + 1 （ 80 5） 520 - 83 50 内 線1369メール アドレス ： corporatesecretary@avinc.com
“ 注目 ： Kevin Mc D onnell 、 上 級 副 社長 、 最高 財務 責任 者電話 番号 ： + （ 80 5 ） 520 - 83 50 内 線1932.
メール アドレス ：mcdonellk@avinc.com管理 エ ージェント へ行政代理人事務所
(for支払 、 前 払い 、 レ ート 、 貸 し 手 要求 ）Bank of America ， N. A.900 W 。ト レ ード ストリ ートa郵 便 番号 ： NC 1 - 0 26 - 06 - 04bシャー ロット 、 ノ ース カロ ライ ナ 州 28 25 5 - 000 1
“注目 ： パ トリ シア · サ ント ス電話 番号 ： 98 0. 38 7. 37 94
“メール ： patri cia . s antos @bofa.comそしてecredit_dedicated@bofa.comワイ ヤ ーの 指示 ：
“Bank of America ， N . A . ，NYA BA # ： 0 26 00 95 93口座 名 ： S LC オ ペ レーション ズ口座 番号 ：1366072250600参考 ： A ero V iron ment Inc .その他 事務 代理 人 としての 通知 · 財務 報告 （ 財務 · コミュニケーション ）
“Bank of America ， N. A.エ ージェ ン シー マネ ジ メント
“540 W 。マ ディ ソン 通り郵 便 番号 ： IL 4 - 540 - 22 - 29シカゴ ， イリノイ 60601.
“ロー ズ · ト ーマ ス電話 番号 ： 31 2. 82 8. 34 17
“テ レ コ ピー 機 ： 87 7. 20 6. 84 13メール ： rose . th omas 2 @bofa.com
“540 W 。マ ディ ソン 通り郵 便 番号 ： IL 4 - 540 - 22 - 29
“シカゴ ， イリノイ 60601注 ： Ger und N 。ダイヤモンド
“電話 番号 ： 31 2. 99 2. 85 88テ レ コ ピー 機 ： 31 2. 45 3. 36 35メール アドレス ： ger und . diam ond @bofa.comL / C 発行 者 としての バン ク · オ ブ · アメリカ への 場合アメリカ 銀行 貿易 業務郵 便 番号 ： PA 6 - 5 80 - 02 - 30
“1 艦 隊 ウェイペン シル ベ ニア 州 スク ラン トン 1850 7
“電話 番号 ： 57 0. 49 6. 96 19テ レ コ ピー 機 ： 800 . 75 5. 87 40メール アドレス ：tradeclientserviceteamus@bofa.com , 別表1.01(B)コミットメントと適用可能な割合； L / C コミットメント； スイングラインコミットメント借出人循環承諾回転設備の適用率, Bank of America ， N. A.モルガン大通銀行、N.A.全米銀行協会ノースカロライナ州シティバンク(d)合計注記： 上記の表の割合金額は、小数点以下 9 桁に四捨五入されます。L / C の発行者
“Swingline貸出機関揺動線約束
“別表1.01(C)現有信用状L / C 番号L / C の発行者
“期日まで受益者信用状の金額Bank of America ， N . A . チュニジア · アラブ国際銀行Bank of America ， N. A.(b)Banco Nacional del Ejército， Fuerza Aérea y Armada， S. N.C.Bank of America ， N. A.リヤド銀行Bank of America ， N. A., インテササンパウロBank of America ， N. A.リヤド銀行Bank of America ， N. A.
“インテササンパウロBank of America ， N. A.$アルバラカ · トゥルク参加銀行
“Bank of America ， N. A.インテササンパウロ
“Bank of America ， N. A.アルバラカ · トゥルク参加銀行Bank of America ， N. A.アスカリ銀行株式会社Bank of America ， N. A.).
“
“Bank of America ， N. A.オマーン国立銀行
“
“
“ スケジュール 5.18 （ a ）
“組織的司法管轄権持分残高の各クラス株数
“持分比率当該持分権益の種類又は性質
“エアロビロネンメント株式会社Altoy Savunma Sanayi ve Havacilik Anonim Sirketi
“投票する．エアロビロネンメント株式会社株式会社アークトゥラス UAV.
“カリフォルニア州普通株式 11 万株投票する．, エアロビロネンメント株式会社トマホークロボット株式会社デラウェア州普通株式 100 株
“投票する．エアロビロネンメント株式会社エアロビロネンメント株式会社アフガニスタンN / A投票する．エアロビロネンメント株式会社フランクリン · ブラックホース、 L. P.
詳細はスケジュール 7.3 を参照。
“ スケジュール 5.18 （ b ）貸金方貸金方(d)最高経営責任者事務所組織的司法管轄権米国納税者
“識別番号組織識別番号
“エアロビロネンメント株式会社900 Innovators Way ， Simi Valley CA 9306 5デラウェア州Arcturus UAV 、 Inc1035 N McDowell Boulevard ， ペタルーマ CA 94954.
“カリフォルニア州トマホークロボット株式会社a2326 Irwin Street ， メルボルン ， FL ， 32901デラウェア州
“
“スケジュール 5.19 （ b ）知的財産権 ,エアロビロネンメント株式会社アメリカ合衆国特許発行タイトル.
“特許番号。発行日
垂直離着陸航空機の GPS アンテナシステムドローンテザリングのシステムと方法, 無人航空機の切り離し可能な結合システム発射管内では
“無人航空機用ガンジドサーボ飛行制御システム車両
“Elevon 制御システム高解像度デジタルデータ画像伝送システム及び方法
“観測者視界低減のための航空機システム垂直離陸用のポッド発射着陸システムと
“着陸無人航空機 （ UAV ）
“
“タイトル特許番号。
“発行日マルチモード無人航空機バーンワイヤーで切断可能なラッチ機構を含むオフセンターパラシュート飛行終了システムUAV ペイロードモジュールのカメラアセンブリおよび引き込みメカニズム無人航空機の運航のための安全システム精密位置制御のためのバイ安定、サブ切換、ダイレクトドライブ、正弦形モーターコントローラ無人航空機ターン · アプローチシステム圧縮モータ巻線発電所及び関連制御システム及び方法
車両 （UAV）垂直離着陸機 （ VTOL ） 補完角付き翼型航空機
“ タイトル.
“特許番号。発行日ローター垂直方向の調査移行システム離陸着陸 （ VTOL ） 無人航空機 （ UAV ）モーターマウントとダンパー10.11無人航空システム （ UAS ） の制御 · 制限のための監視安全システム運営.
“ディープストール航空機着陸RF 信号のためのシステムおよびデバイスマルチパックランチャーシステムの運搬ケーブル精密誘導空気を行うためのシステムおよび方法地上のパッケージ配達.
“無人航空機用リブ取付フランジ高高度長耐久機用地上支援装置
“ タイトル特許番号。ワイヤレスネットワークの動的伝送制御, Elevon コントロールシステム無人航空機の切り離し可能な結合システム発射管内で, 無人航空機用ガンジドサーボ飛行制御システム, 車両モータの回転軸を過度の曲げモーメントから保護するシステム垂直離着陸用無人航空機用ポッド発射着陸システム垂直離着陸航空におけるエネルギー効率の高い離着陸 · 着陸方法 · システム車種
“遠隔表示インタラクティブ兵器ターゲティングシステムターゲット領域の感知画像
“固定子巻線ヒートシンク構成Elevon 制御システム , タイトル特許番号。発行日無人航空機の迎撃 · 対抗システム · 方法無人機ペイロードモジュールのカメラの組立および引き込み機構マルチモード無人航空器押出された翼の保護システムおよび機器ラッチ機構を含むオフセンターパラシュートフライト終端システム
“バーンワイヤーによって切断可能無人航空システム （ UAS ） の運用を制御 · 制限するための監視安全システム100,000,000200,000,000, 太陽電池アレイのシステムと方法通信
タイトル特許番号。発行日高高度の長耐久航空機のための地上の支持装置高い帯域幅を持つカメラのボール塔外部画像プロセッサへのデータ伝送モーターマウントおよびダンパー低温液体タンク無人のための配給システム航空輸送機
“遠隔操作無人機のためのシステムとデバイスレポート — ポータブル RF 搭載の打ち上げ機抑制透明なランチチューブ高高度 · 長耐久 · 無人機とその運用方法.
“無人航空機及びその方法 .
“
“タイトル特許番号。発行日.
“操作方法機内水平着陸時の無人航空機の横方向制御保持方法及びシステムプロペラ.
“BI—STABLE 、 SUB—COMMUTATED 、 DIRECt—Drive 、精密位置制御のための正弦電動機コントローラー垂直方向の測量移行システム離陸着陸 （ VTOL ） 無人航空機 （ UAV ）
“垂直離陸着陸 （ VTOL ）補完的な角度付きロータを備えた翼付き航空車両
“密閉した UAVモジュラーコンパートメントおよび流体ドレインポート
“再構成可能なバッテリー駆動車
“ タイトル
“発行日系統垂直離陸着陸 （ VTOL ） 用地形測量システム.
“航空車両 （ UAV ）圧縮モーター巻き取りマルチスペクトルフィルタ.
“航空撮影画像のクラウドベースの管理方法とシステム車両
“無人航空システムのためのプライバシーシールド機械的耐衝撃性プリント回路基板 （PCB） のための取り付けシステムマルチパックランチャの RF 信号伝送ケーブルのためのシステムとデバイス.
“系統ポストフィールド生成のための画像の VORONOI クロッピングAN のための配給システム ,
“ タイトル特許番号。, 発行日無人飛行機
“ターゲットの遠隔感知画像を表示するインタラクティブ兵器ターゲティングシステムエリア
“ポジティブな維持をターゲットにする機械への機械回転 LIDAR
“充電システムおよび充電方法移動プラットフォーム上の無人航空機
“垂直離陸のための飛行計画を決定する方法とシステムと着陸 （ VTOL ） 航空車両
“AN の操作のための安全システム無人飛行機
“発電プラントおよび関連制御システムおよび方法A のための POD オペレーションシステム .
“タイトル特許番号。
“発行日垂直離陸着陸 （ VTOL ） 無人機
“車両 （UAV）精密誘導空中 — 地上パッケージ配送システムおよび方法
“垂直離着陸 （ VTOL ） 空中における二重地球測位システムアンテナの利用方法とシステム自動車
“ELEVON コントロールシステム無人航空機のドラッグ
“逆プロペラ回転による増強展開可能な航空車両システムエアフォイルとラッドダー高解像度デジタルデータ画像伝送のシステムと方法取外し可能な防水コンパートメント多重コンダクトのためのハッチおよび両側ゲルシール タイトル特許番号。
“発行日アクセス情報
“航空車両の飛行機構と制御方法無人航空機の角度の再配置
“モーターの空気流の冷却逆転型航空機垂直のポッドカバーシステム脱着陸 （ VTOL ） 無人航空機 （ UAV ）非正弦型翼のフラップリングのための航空車両の飛行機構と制御方法, AD HOC ダイナミックデータリンク中継器ディープ · ストール · エアクラフト着陸UAV ペイロードモジュールのカメラアセンブリアンドラクションメカニズム
“無人機ターンアンドアプローチシステム
特許番号。発行日
“A のための動的伝達制御無線ネットワーク垂直離陸着陸 （ VTOL ） 空気.
“車両A を持つ押出された制御表面ノックルとノッチ無人航空機ベースのオブジェクトのための方法と装置検知
“無人航空機のナビゲーションシステムAND メソッド
“デュアル地球測位システムアンテナ逆離着陸 （ VTOL ） 無線を利用する方法とシステム車両
“遠隔操作型無人航空機のためのシステムとデバイスレポート —ランチャーを抑制する
“
“ タイトル
“特許番号。発行日ポータブル RF TRANSPARENt ランチチューブ.
“ELEVON コントロールシステム精密誘導空中 — 地上パッケージ配送システムおよび方法
“垂直離陸着陸 （ VTOL ） 無人航空機 （ UAV ） のためのサーベイ · マイグレーションシステムモーターマウントおよびダンパー
“IRONLESS MOTOR のための FLUX 集中器” 密閉されたモジュラーコンパートメントと流体ドレインを持つ UAV港口.航空機用航空ベイ用熱管理システムエアクラフトグランドシステム制御のための監督安全システム タイトル特許番号。発行日無人航空システムの運用を制限すること
“圧縮モーター巻き取り低温液体タンク
“ELEVON コントロールシステム逆プロペラ回転による無人航空機の曳引力増加
“インタラクティブ兵器ターゲットシステムターゲットエリアのリモートセンシング画像の表示
“垂直離陸着陸 （ VTOL ） 用地形測量システム航空輸送 .
“逆着陸型航空機垂直離着陸用無人航空機 （ VTOL ） 用電力 · 通信インターフェース回転可能なシャフトを保護するシステム曲げモーメント過大からのモータマルチモード無人航空器,小型無人航空機 （ SUAV ）船上回収システム).
“UAV ペイロードモジュールのカメラアセンブリおよび引き込み機構遠隔操作型無人航空機のためのシステムとデバイスレポート —ポータブル RF TRANSPARENt が付いているランチャーを抑える タイトル
“特許番号。発行日
“ランチチューブ発射管内での無人航空機の切り離し可能な結合システム
“垂直離陸着陸 （ VTOL ） 翼型航空車両 （ 補完 ）角度角のロータ
“無人航空機の角度の再配置” POD 打ち上げおよび着陸システム垂直離陸 · 着陸 （ VTOL ） 無人航空機 （ UAV ）逆転型航空機, 航空車両の飛行機構と制御方法
“垂直離陸着陸 （ VTOL ） 航空車両遠隔感知で標的領域の画像を表示するインタラクティブ兵器ターゲティングシステム .
“特許番号。発行日開始チューブ拘束システムフォーム無人航空機 （UAV）観測者の視界を低減するための航空機システムマルチモード無人航空器
“無人航空機の運用のための安全システムディープ · ストール · エアクラフト着陸
“プロペラを合わせるシステム機械的耐衝撃性プリント回路基板 （PCB） のための取り付けシステム
“無人機ペイロードモジュールのカメラの組立および引き込み機構無人機用操作制御装置
“航空輸送機再構成可能なバッテリー動作 タイトル特許番号。発行日.
“車両システム発電プラントおよび関連制御システムおよび方法遠隔操作型無人航空機のためのシステムとデバイスレポート —ポータブル RF の透明な発射管が付いている発射器を抑える
“航空機用航空ベイ用熱管理システムステータの巻線 HEAT シンク構成
“複数のコンダクトアクセスのための取り外し可能なハッチと両面ゲルシール付きの防水コンパートメントGIMBAL LOCk の回避付きのチルトボールターレット非正弦型翼のフラップリングのための航空車両の飛行機構と制御方法.
“小型の無人航空車両 .
“ タイトル
“特許番号。発行日
“（ SUAV ）船上の回収システム無人航空機のターンとアプローチ.
“回転 LIDAR垂直離陸着陸 （ VTOL ） 航空車両垂直離陸着陸 （ VTOL ） 無人航空機 （ UAV ） のためのサーベイ · マイグレーションシステムエアクラフト接地システム
“航空車両の飛行機構および制御方法について航空車両の飛行機構と制御方法IRONLESS MOTOR のための FLUX 集中器
“垂直離陸着陸 （ VTOL ）補完的な角度付きロータを備えた翼付き航空車両
“ , タイトル特許番号。
“発行日観測者削減のための航空機システム
“視認性垂直方向の地理調査システム
“離陸着陸 （ VTOL ） 無人航空機 （ UAV ）無人航空機 （ UAV ） 用チューブ拘束システムを発売
“垂直離陸 · 着陸用電力 · 通信インターフェース （ VTOL ）無人航空機 （ UAV ）無人機ペイロードモジュールのカメラの組立および引き込み機構).
“垂直離陸着陸 （ VTOL ） 航空車両低温液体 タイトル
“特許番号。発行日タンク.
“圧縮モーター巻き取りインタラクティブ兵器ターゲットシステムターゲットエリアのリモートセンシング画像の表示.
“パフォーマンスモニタリングによるアクティブマルチパスネットワークの冗長性無人航空機の角度の再配置モーターの回転軸を過度の曲げモーメントから保護するシステム.
“能動的な二面体制御システムはねじれ柔軟な翼を形成しますAN のための熱管理システム
“ タイトル特許番号。, 発行日固定子巻線 HEAT シンク構成FAULt—TOLERANt 、 FRAME—BASEDコミュニケーションシステム発電プラントおよび関連制御システムおよび方法モーターマウントおよびダンパーモーターの空気流の冷却ディープ · ストール · 航空機着陸小型無人航空機 （ SUAV ） 船上の回収システム非正弦型翼のフラップリングのための航空車両の飛行機構と制御方法逆転型航空機, 垂直離着陸用無人航空機 （ VTOL ） 用電力 · 通信インターフェースA 形を整列するシステム タイトル特許番号。
取り外し可能なハッチと複数のための両面ゲルシール付きの防水コンパートメント
“CONDUIT アクセス無人航空機 （ UAV ） 用チューブ拘束システムを発売耐水性 AIRCRAFt PITOt デバイス.
“高高度 · 長耐久 · 無人機とその運用方法密閉されたモジュラーコンパートメントと流体ドレインポートを有する UAV
“エアクラフト接地システム , タイトル特許番号。発行日UAV ペイロードモジュールのカメラアセンブリおよび引き込み機構高解像度デジタルデータ画像伝送のシステムと方法IRONLESS MOTOR のための FLUX CONCENTRATOR発電プラントおよび関連制御システムおよび方法無人航空機の角度の再配置ディープ · ストール · エアクラフト着陸パフォーマンスモニタリングによるアクティブマルチパスネットワークの冗長性(b)逆転型航空機
ポータブル RF の透明な発射管が付いている発射器を抑える タイトル
“GIMBAL LOCk の回避付きのチルトボールターレットマルチモード無人航空器能動的な二面体制御システムは、ねじれ柔軟な翼を形成しますFAULT—TOLERANt 、フレームベースの通信システム遠隔装置制御および電源供給ELEVON コントロールシステム, 逆プロペラによる無人航空車両のドラッグアップロータイムワイヤレスネットワークの動的伝送制御耐水性 AIRCRAFt PITOt デバイスコイルされたデータ伝送ケーブルを持つロールチルトボールターレットカメラ タイトル特許番号。発行日航空機構造物用ヘアトトランスファーシステムの製造方法圧縮モーター巻き取り航空機用 HEAT 輸送システム
“ELEVON コントロールシステム低温液体タンクアクティブマルチパスネットワーク冗長性, パフォーマンスモニタリング付きSENSORLESS OPTIMUM のトルク制御高効率の無鉄の永久磁気機械逆プロペラ回転による無人航空機のドラッグアップオープンデルタ H ブリッジ駆動高効率のための予測パルス幅変調 (b) タイトル特許番号。発行日IRONLESS 永久磁石機械).
“A の自動構成制御機器
“ステータの巻線 HEAT シンク構成再構成可能な航空機
“エアクラフト接地システムモーター空気流の冷却エネルギー貯蔵システム.
“ボール TURRET ヘイトシンクと EMI シールド関節式センサー支持構造コイルされたデータ伝送ケーブルを持つロールチルトボールターレットカメラ遠隔操作型無人航空機のためのシステムとデバイスレポート —
“ポータブル RF とのランチャーを抑える ”, “ タイトル特許番号。発行日
防水電気コネクタおよび系統, インタークーラーの冷たい燃料の冷却およびアフタークーラー
“発電所および関連制御システムAND メソッドエアクラフトパワーマネジメント 統合されたアンテナと表示の陰影FAULt—TOLERANt 、 FRAME—BASEDコミュニケーションシステム水素動力航空機エアクラフト電力管理防水電気コネクタと
“
“タイトル特許番号。発行日.
“オープンデルタ H ブリッジ駆動高効率無鉄永久磁石機械のための予測パルス幅変調SENSORLESS OPTIMUM のトルク制御
“高効率の無鉄の永久磁気機械航空車両の飛行機構と制御方法航空車両の飛行機構と制御.
“メソッド発電所および関連制御システムAND メソッドエネルギー貯蔵システムインタークーラーおよびアフタークーラーの冷たい燃料冷却高高度のプラットフォーム展開システムリモート · デバイス · コントロールと電力 ,
“ タイトル
“特許番号。発行日
“サプライ水素動力型航空機
防水電気コネクタおよびシステム
“エネルギー貯蔵システムエネルギー貯蔵システム
“エネルギー蓄積システム高高度のプラットフォーム展開システム
“エネルギー貯蔵システム航空機制御システム .
“
“アメリカ合衆国特許出願タイトル
“アップル No.提出日Rudder Integrator フィードバックを備えたロールバイアススキッドターンターミナルガイダンス.
“高高度長耐久航空機の艦隊の管理方法マシンツーマシンターゲティングポジティブな識別を維持する
“高高度長耐久機用地上支援装置ELEVON コントロールシステムa水平型機内プロペラによる着陸時の無人航空機の横方向制御保持方法及びシステムロボット車両の遠隔操作のシステムと方法垂直離着陸におけるデュアル地球測位システムアンテナの利用方法及びシステムVTOL 航空器
“ドローンのためのシステムと方法 , タイトルアップル No.提出日テッサーリング, 無人航空機のための GANGED サーボフライト制御システム分類並列化
“打ち上げ時の無人航空機の切り離し可能な結合システムTUBE無人車両の衝突予測 · 防止, 無人車両の複数タイプのための FLEET コントローラー拒否 / 中断された GPS ナビゲーションのためのシステム、デバイス、および方法端末追跡およびウェーブオフのためのシステム、デバイス、および方法, 翼とサーボ制御のスライドモジュラーセクションと ZIP—UP エアロを備えた SPAR フューザージ
“ .
“タイトルアップル No.提出日.
“SHELL高解像度デジタルデータ画像のシステムおよび方法
“Elevon コントロールシステム観測者視界低減のための航空機システムマルチモード無人航空機貯蔵庫管理のためのシステム、デバイス、および方法無人航空機ターン · アプローチシステム無人航空機の運航のための安全システムバイ安定、サブスイッチング、ダイレクトドライブ、正弦電動機精密位置制御用コントローラー
“距離感知垂直降下停止システムおよび方法無人航空機と運用方法
“航空機で撮影した画像をクラウドで管理する方法とシステムVTOL プロペラアダプター .
“ タイトルアップル No.提出日方法と
加速度プロファイルを使用した軌跡マッピングモーターの回転軸を過度の曲げモーメントから保護するためのシステム太陽電池アレイ通信のためのシステムおよび方法ターゲットの遠隔感知画像を表示するインタラクティブ兵器ターゲティングシステム100,000,000200,000,000.
“エリアロールバイアススキッドターンターミナルガイド （ 操舵付き ）インテグレータフィードバックA のクリムとグライド操作の方法高高度の長い耐久の航空機飛行計画を決定する方法とシステム
“垂直離着陸航空器
“ タイトルアップル。いいえ, 20262029; 提出日, ディープストール航空機着陸ラッチ機構を含むオフセンターパラシュートフライト終端システム
“バーンワイヤーによって切断可能垂直離着陸機 （ VTOL ） ： 角付きロータを備えた翼型航空機
“モーターマウントおよびダンパー制御のための監視安全システム無人航空システムの運用を制限すること.
“垂直方向の測量移行システム離陸着陸 （ VTOL ） 無人航空機 （ UAV ）マルチパックランチャの RF 信号伝送ケーブルのためのシステムとデバイス系統無人のためのリブ取り付けフランジ
“
“ タイトルアップル No.
“提出日航空輸送機ユニバーサルマルチモーダルペイロード制御.
“高高度ロングのための地上サポート装置耐久航空機
ポストフィールド生成のための画像の Voronoi クロッピング水平な内側着陸中の無人航空機の横方向制御を維持する方法とシステムプロペラー
“ポータブル RF を備えた遠隔操作無人航空機報告抑制ランチャーのシステムおよびデバイス透明発射管ポジティブを維持するマシンツーマシンターゲティング
ワイヤレスネットワークの動的伝送制御.
“精密誘導空中 — 地上パッケージ配送システムおよび方法 .
“タイトルアップル No.
“提出日エネルギー効率の高い離陸および垂直離着陸航空機の着陸固定子巻線ヒートシンク構成傍受のためのシステムと方法と無人航空機 （ UAV ） 対抗押出された翼の保護システムおよび装置無人航空機用 D—TRUSS 翼構造高い帯域幅を持つカメラのボール塔.
“外部画像プロセッサへのデータ伝送システムと開始方法 A高い高度、長い耐久、無人.
“航空機とその運航方法自動回転装置の組み立てと操作方法
“ タイトル
“アップル No.提出日
“自動回転ペイロード配信装置高高度ロングの作動方法
“太陽の捕獲を最大化するための耐久性航空機ローカルに基づく高高度長耐久航空機の自動離着陸システムと方法
高高度長航続航空機の飛行計画最適化手法
“ハイのフリーエットを管理する方法ALTITUDE 長期耐久航空機高高度の分散制御計算のためのシステムと方法長期耐久航空機 .
“ タイトルアップル。いいえ
“逆転型航空機垂直取扱のための POD オペレーティングシステム —離陸 · 着陸 （ VTOL ） 無人航空機 （ UAV ）, AD HOC ダイナミックデータリンク中継器IRONLESS MOTOR のための FLUX 集中器 .
“ ).
“ アメリカ合衆国商標登録標識レギュラー No., 5.02(a), レジ。日付, AV AeroVironment, 5.04, 5.13, 5.16 (QUANTIX RECONクライサリス確実性を持って進んだ5.17確実性を持って進んだエアロビロンメントクアンティックス
特許番号。発行日分類並列化アーキテクチャ空間制御の意向を検出するシステムと方法
“無人システムの制御のためのユニバーサル制御アーキテクチャ分類並列化アーキテクチャ
“慣性的に孤立した空間制御 アメリカ合衆国特許出願.
“タイトルアップル No.提出日空間制御の意向を検出するシステムと方法ユニバーサル制御
“
“タイトルアップル No.
“提出日無人システム制御のためのアーキテクチャ
“コンピュータビジョン分類器による無人航空機の経路計画単一データバスモバイルデバイスによる使用のためのレイヤードフェイルセーフ冗長アーキテクチャとプロセス無人システムからの POINT—OF—INTEREST 追跡および推定手法, 慣性的に孤立した空間制御分散型人工知能拡張のためのアーキテクチャ
“分散型人工知能拡張のためのアーキテクチャ無人システムの制御のためのユニバーサル制御アーキテクチャ宇宙テレオペレーションの
“譲り受け人の名前を挿入する“()”
“譲り受け人“)”信用協定“)、譲り受けた者は、その写しを受け取ったことを確認する。*規定されている標準条項と条件添付ファイル1本プロトコル添付ファイルに添付されている内容はすべてここで参考にし，本譲渡と仮定の一部として，この全文で述べたようになる.合意された代価で、譲渡者はここで撤回不可能に譲渡者に売却及び譲渡を行い、譲受人はここで撤回不可能に譲渡者に購入し、以下のように挿入される発効日から行政エージェントが以下のように挿入される発効日から負担し、譲受人は標準条項及び条件及び信用協定に従って譲渡者から購入及び負担される以下の金額[S]と、当該合意に基づいて交付された任意の他の書類又は文書の下で譲渡者が貸金人としてのすべての権利及び義務を負担し、金額[S]は、譲渡者が以下の各融資項目の下で送達されるすべての未償還権利及び義務のパーセンテージ(信用状、信用状、義務を含む)に相当する。(B)適用される法律の譲渡が許可される範囲内で、譲渡者(貸金人の身分で)は、信用協定、協定に従って交付された任意の他の文書または手形、または合意または任意の方法で管理された融資取引に基づいて生成されるか、またはそれに関連するすべての請求、訴訟、訴因、および任意の他の権利を含むが、契約請求、侵害請求、不当行為請求、およびこれらに限定されないが、これらに限定されない。法定債権及びその他のすべての法律又は衡平法上の債権は、次の規定による売却及び譲渡の権利及び義務に関係する(A)条
“ 上記 （ 権利および義務は、 第(A)条 そして 以上、ここで総括して、「
“権益を譲渡する”). このような販売および譲渡は、譲渡者に訴えることなく、この譲渡および仮定に明示的に規定されている場合を除き、譲渡者による表明または保証なしです。1.譲渡人：[譲渡者は] 債務不履行の貸し手ではない。2.担当者：[and[Affiliate] [Approved Fund] の [Affiliate] [Approved Fund]
“借り手を確定する3.借り手：AeroVironment， Inc.デラウェア · コーポレーション （ The Delaware Corporation ）借款人4.管理エージェント ：Bank of America ， N. A. ，クレジット契約に基づく管理代理人として5.クレジット契約 ：”).
“2021 年 2 月 19 日付の貸付契約は、借り手、保証人当事者、貸し手、バンク · オブ · アメリカ、 N. A. との間で締結されました。管理代理人、スイングライン貸し手、および L / C 発行者、およびその他の L / C 発行者の当事者として6.利子割当 ：
“該当するものを選択します。
“施設指定すべての貸し手に対するコミットメント / 融資の合計額割り当てられた承諾額/貸金額, コミットメント / 融資の割り当て比率
“ 貿易日：
“発効日 ： ________________ ， 20 _____ [行政代理人によって挿入され、その登記簿への移転の記録の有効日とする。署名ページは以下のとおりです
“ 本譲渡および仮定に基づき譲渡される信用契約に基づくファシリティの種類について適切な用語を記入します （ 例 ： 「回転ファシリティ」など ） 。 取引日と発効日の間に行われた支払いまたは前払いを考慮して取引相手方によって調整される金額。
“ その下にあるすべての貸し手のコミットメント / ローンの割合として、少なくとも 9 桁まで記載します。 譲渡者及び譲受人が取引日時点で最低譲渡金額を決定することを意図している場合は、完了すること。 この譲渡と仮定に規定されている条項に同意します
“[NAME（ 譲渡人 ） 。譲渡者として投稿者：.
“[NAME（ 署名 ） 。譲受人として
“投稿者： .
“ .
“名前 ：タイトル ：
(c)投稿者：
(d) 名前 ：タイトル ： ） (a) 添付ファイル1 標準条項と条件分配と仮定, 申告と保証譲渡人それは.譲渡者：(A)譲渡権益の合法的かつ実益所有者であることを示し、保証する(Ii)譲渡権益には、留置権、財産権負担、または他の不利なクレームはなく、(Iii)完全な権力と権力を有し、この譲渡および仮定を実行および交付し、本合意に予想される取引を完了するために必要なすべての行動を取っており、(Iv)違約貸金者ではない。また、(B)(I)クレジット協定または任意の他の融資文書中で行われる、またはそれに関連する任意の陳述、保証または陳述、(Ii)融資文書またはその下の任意の担保の署名、合法性、有効性、実行可能性、真正性、十分性または価値、(Iii)借主者、その任意の付属会社または共同経営会社または任意の他の融資文書について義務を負う任意の者の財務状況、または(Iv)借入者、その任意の付属会社または共同経営会社または任意の他の者が、任意の融資文書の下の任意の義務を履行または遵守する任意の責任は、一切の責任を負わない。譲り受け人それは.譲受人：(A)完全な権力と権力があることを表明し、保証し、この譲渡及び仮説を署名及び交付するために必要なすべての行動を取って、このような譲渡及び仮定を実行及び交付し、行われる取引を完了し、信用協定項下の貸手となる；(Ii)信用協定条項に規定されている譲受人の要求(信用貸付協定条項に規定されている同意(あり)に規定されている同意を必要とする)、(Iii)発効日から及びその後、貸金人として、クレジット合意及び他の融資文書の条文に拘束されなければならない。譲渡された資本の範囲内で、融資者がその合意に従って負う義務を負うべきである；(Iv)譲渡された権利に代表されるタイプの資産の買収の決定は複雑であり、または譲渡された資本の買収を決定する際に情権を行使する人は、このような資産を買収する上で経験が豊富である；(V)信用協定を受信し、第6.01節に交付された最新の財務諸表のコピーを受信したか、または受け取る機会があった(適用状況に応じて決定される)。そして、今回の譲渡と仮定および購入譲渡権益の他の文書と情報を行うために、自己で信用分析と決定を行うことができると考え、(Vi)それが適切と考えられる文書と情報に基づいて、行政エージェントまたは任意の他の融資者に依存することなく、自分の信用分析と決定を独立して行い、今回の譲渡と仮説を行い、譲渡権益を購入し、(Vii)本文書に添付された文書は、譲受人が正式に記入し、署名した信用協定条項に従ってその交付を要求する任意の文書である。(B)同意(I)行政エージェント、譲渡者、または任意の他の貸主に依存することなく、その当時適切と考えられていた文書および情報に基づいて、融資文書に基づいて自己の信用決定を行い続けるか、および(Ii)その条項に基づいて、融資文書条項に基づいて融資者として履行されるすべての義務を履行することに同意する。支払それは.上記の規定にもかかわらず、行政エージェントは、発効日からその後に支払われるまたは対応するすべての利息、手数料、または他の実物金を譲受人に支払わなければならない。 一般条文それは.本譲渡と負担は、本契約の双方及びそのそれぞれの相続人及び譲受人に拘束力を持たせ、利益を得ることができる。本譲渡および仮定は、コピー内で実行可能であり(および本契約の異なる当事者によって異なるコピーで実行される)、各サブは、正本を構成すべきであるが、すべてのコピーが一緒に結合されている場合には、単一の契約を構成すべきである。ファクシミリ送信または電子メール送信(例えば、“pdf”または“tif”)による本譲渡および仮想署名ページの署名コピーの交付は、手動で署名された本譲渡および仮定されたコピーを交付するのと同様に有効でなければならない。彼は言いました本譲渡および仮定、ならびにこの譲渡および仮説および意図された取引に基づく、または引き起こされる取引に関連する任意の申立、係争、係争または訴訟因由(契約または侵害行為または他の態様にかかわらず)は、ニューヨーク州の法律によって管轄され、ニューヨーク州の法律に従って解釈されなければならない。(b)
(e) そして個人貸付機関 添付ファイルB[FORmの] コンプライアンス証明書, 日付：_AeroVironment Inc.，デラウェア州の会社借款人
信用協定借り手，保証者，時々の貸手，行政代理である米国銀行，Swingline貸手，L/信用証発行者，その他のL/信用証発行者ではコンプライアンス証明書は借り手の財政[年度][四半期]20_まで。“信用協定”第6.01(A)節に要求された借主者は、第1項に記載した日までの財政年度末の監査財務諸表を、同節で要求した独立公認会計士の報告及び意見とともに、行政代理に送付した。]信用協定“第6.01(B)節に規定する借主は、第1項に記載された日付までの財政四半期に監査されていない財務諸表が行政代理に送付されている以下の署名人の監督の下で、借款人及びその子会社の当該財政期間における活動を審査し、借り手及びその子会社が当該財政期間中に融資文書に規定されたすべての義務を履行し、遵守したか否かを判定し、 [以下の署名者の知る限り、この財務期間中には、違約は発生せず、継続している。][以下の署名者によれば、この財政期間中に発生し、継続している各失責行為、当該等の失責行為の性質及び状況、及び講じられたまたは講じられた行動は、以下のように一覧表は以下の通りである添付ファイルとして本ファイルに添付します表1付き(A)クレジットプロトコル第7.11節に記載された同封までの財務諸表がカバーする期間の最後の日と、その期間の最後の日までの財務契約の計算、(B)コンプライアンス証明書の日付までの利用可能な金額、および(C)同封された財務諸表がカバーする期間の最後の日までのメトリック期間の総合レバレッジ率。*このような計算は、コンプライアンス証明書の日から実際に、正しく、完全に計算されます。添付ファイルとして本ファイルに添付します, 表2付き次のリスト：(A)任意の融資方向米国特許商標局または米国著作権局が最近提出したコンプライアンス証明書の日(または、信用協定第6.02(A)条に従って締め切り後に交付された最初のコンプライアンス証明書である場合は、締め切り)から任意の知的財産権について提出されたすべての出願(ある場合)、(B)任意の貸金先は、その以前のコンプライアンス証明書(または、クレジットプロトコル第6.02(A)節に従って締め切り後に交付された最初のコンプライアンス証明書については、(C)任意の貸手が、以前のコンプライアンス証明書の日から締結された、米国特許商標局または米国著作権局に登録されている任意の知的財産権に関するすべての許可(またはクレジット協定第6.02(A)節に従って締め切り後に交付された最初のコンプライアンス証明書である場合)、締め切りである)。本文書に記載されている財務諸表に関連する期間内に完了した任意のサプライチェーン融資は、許可されたサプライチェーン融資です。書簡で提出された財務諸表に関連する期間の最後の日に、販売されたまたは販売されたこのようなサプライチェーン融資が許可されたすべての売掛金がまだ回収されておらず、購入されていないすべての売掛金は[__]ドルである。添付ファイルとして本ファイルに添付します付表3このコンプライアンス証明書によってカバーされる期間内に更新、交換、または修正された融資先の任意の保険範囲の最新の保険証拠。添付ファイルとして本ファイルに添付します付表[3][4]署名ページは以下のとおりです 表2付き“無”に反映すべきである.
1.04クレジットプロトコル6.01(A)節に提出された財務諸表に基づいて提出されたコンプライアンス証明書にのみ適用される。このような更新がなければ.
「なし」を反映する。
その証として、下記署名者は、上記に最初に記載された日に、このコンプライアンス証明書を実行しました。
デラウェア州の会社投稿者：,
名前 ：
(a)表1付き金融契約の算出、利用可能額の算出、連結レバレッジ比率の算出本書に定める規定と公式との間に矛盾が生じた場合 , 表1付き
(b)合併資金負債 重複しない場合、以下のすべての項目は、公認会計基準に基づくか否かにかかわらず、負債または負債である, , (i) Ai借り手およびその付属会社の借入金に対するすべての総合債務、流動または長期(このような債務を含む)、および借り手およびその付属会社の債券、債権証、手形、融資プロトコル、または他の同様の手形証明に基づくすべての債務：Bii 借り手とその子会社の総合ベースのすべての購入代金債務： 借り手およびその付属会社は、借り手またはその任意の付属会社によって購入された財産に関連する条件付き売却または他の所有権保留プロトコルによって規定される合併すべての債務の主要部分(通常の業務中に仕入先と締結された合意に基づいて規定される習慣的な保留または保留所有権を除く)： 借り手およびその子会社の総合ベースのすべての債務であって、これらの債務は、(A)信用状(予備信用状および商業信用状を含む)、銀行引受為替手形、銀行保証、保証債券および同様の手形、および(B)二国間信用証に重複せずに生成される 借り手及びその付属会社は、財産又はサービスの繰延購入価格について総合的に負担するすべての債務(正常な業務過程で支払うべき貿易帳簿を除く。このような貿易帳簿の設立日から90(90)日以内に期限を超えていない)には、いかなる金銭獲得も含まれている,
(c) 借り手及びその付属会社は、借り手、その付属会社又は任意の他の者の任意の持分について総合的に基づいて負担する購入、償還、解約、廃棄、又は他の方法で支払うすべての義務について、償還可能な優先権益について、その推定値を自発的または , 追加する
(a) 借り手及びその付属会社が総合的に基づいて所有又は取得した財産の留置権、又は当該財産から取得した生産収益から支払われた既存の権利から担保された(又は当該等出資債務の所有者は、担保された他の者のすべての出資債務を有しているか、又は他の権利を担保しているか否かにかかわらず、それによって保証された債務が負担されているか否かにかかわらず： ,
借入者又はその任意の付属会社が一般パートナー又は連合会社の任意の共同企業又は合営企業(自体が法団又は有限責任会社の合営企業を除く)のすべての出資負債であるが、当該等の出資負債が借入者及びその付属会社に対して追徴権がないことを総合的な基礎で明示している場合は例外である
(d) 以下 （ 連結純利益には含まれていません ） ：
(g)借入金 （ 資本化利子を含む ） または資産の繰延購入価格に関連したすべての利子、プレミアム支払い、債務割引、手数料、手数料および関連費用は、 GAAP に従って利子として扱われる範囲において、当該期間についてそれぞれです。 当該期間の停止された事業に関して支払われたまたは支払われるすべての利子 金額は、「連結上級担保付き債務」の定義に定める条件を適用して決定されるべきである。
(i) , 公認会計原則に基づいて、資本化賃貸項目の下で利息で処理するこの期間の賃貸料支出部分：:
(A)
(B)
(C)
(D)
(E)第一条第一項(B)(イ)第一条++++++(b) 納付または納付すべき連邦、州、地方、外国所得税の規定： (b)この期間の減価償却と償却費用：
(F) この期間の任意の非現金支出、損失または費用(勘定または在庫の解約、減記または準備金に関連する任意の非現金支出、損失または費用を除く)(その期間の任意の非現金株式補償費用を含む)が、その期間または任意の他の期間の現金項目を表すものではない 再構成費用または準備金(保留、解散費、システム確立費用、超過年金費用、契約終了費用、開設、閉鎖、移転または合併施設に関する費用、従業員の再配置費用、相談費、使い捨て情報技術費用、および使い捨てブランド費用を含むものとする)： この期間中に発生する株式または債務の発行、許可された買収の完了、および信用協定第7.03条に従って許可された他の投資の完了に関連する費用、コストおよび支出(場合によっては、成約日の前または後に完了しても)、そのような取引が実際に完了しているか否かにかかわらず： 提供それはこれにより加算された総金額第一条第一項(B)(Vii)どのような期間においても第(I)(B)(Ix)条この間，以下の金額は総合EBITDAの20%(20%)を超えてはならない(計算時にはこれによって許される加算は考慮しない
(G)第一条第一項(B)(Vii)(x) あるいは…第(I)(B)(Ix)条提供それはこれにより加算された総金額ライン （ I ） （ b ） （ ix ） いずれの期間においても、合計額と合計額を合わせると ライン （ I ） （ b ） （ vii ）
(H) 上記については、連結 EBITDA （ 本法により許可される追加バックを実施せずに計算される ） の 20% （ 20% ） に相当する金額を超えないものとします。 ライン （ I ） （ b ） （ ix ） あるいは…ライン （ I ） （ b ） （ vii ）
ライン （ I ） （ a ） （ xii ） 割 ライン （ I ） （ b ） （ xii ）_____ から 1.00 まで上限連結シニア担保レバレッジ比率 ：(b)_____ から 1.00 までコンプライアンス ？[はい] [いいえ](b)
(F) 連結シニア担保レバレッジ比率の最大値は、レバレッジ比率目標を超えないものとします。 第 7.11 節 （ b ） — 連結固定課金比率。連結 EBITDA （ 参照 行 （ I ） （ b ） （ xii ）当期間の連結維持設備投資現金による連結利息手数料 各場合において、連結ベースで借り手およびその子会社について、測定期間に現金で支払われた範囲において、 借入金 （ 資本化利子を含む ） または資産の繰延購入価格に関連したすべての利子、プレミアム支払い、債務割引、手数料、手数料および関連費用は、 GAAP に従って利子として扱われる範囲において、当該期間についてそれぞれです。
(G)当該期間の停止された事業に関して支払または支払われるすべての利子(x) キャピタライズされたリースの下での賃料費用のうち、 GAAP に従って当該期間の利子として扱われる部分。 許容されたサプライチェーンファイナンスに従って当該期間に売却された売掛金に適用される「割引率」 （ または割引額を証明する類似の概念 ） ： 現金で支払われた連結利息手数料 [ライン （ II ） （ c ） （ i ）++++
(H)++当期間の連結予定債務の支払 ：, この期間の連結現金税 ：当該期間中に行われたすべての指定制限支払いの合計額 ：
(I)連結固定充電比率 [（ライン （ II ） （ a ）） ÷ （
(J)ライン （ II ） （ c ） （ v ）++++++_____ から 1.00 まで最低連結固定料金のレバレッジ比率 ：
(K) [Yes][No] , 繰り返しない場合には総額がゼロ以上の額は、借り手が決済日後に終了した第1の完全会計四半期の第1の完全会計四半期の第1日から借り手の直近の会計四半期が終了するまでの期間(1会計期間として)の累計総合純収入の50%(50%)に相当する
決算日以降に行われる任意の投資の金額は、利用可能な金額を基準とするが、同封された財務諸表に係る期間の最終日までにキャッシュバックの範囲内で、当該等投資の元金又は元金のリターン(貸手又は付属会社への売却を除く)、又は当該等の投資について徴収する配当金又は利息：, もっと少ない借り手または任意の付属会社が、このような変換または交換の際に割り当てられた任意の現金または他の財産の公平な市場価値であるが、再構成に関連するものを除く)：信用協定第7.03(N)節の利用可能金額による全投資の累計総額：クレジット協定第7.14(A)(Iii)節に基づいて利用可能な金額に基づいて支払われるすべての二次債務の累積総額：利用可能な金額[(第一条第一項(A)++, ++++++ライン III （ f ）;.
(a)連結資金調達債務 [ライン I （ a ） （ xi ）連結 EBITDA [ライン I （ b ） （ xii ）連結レバレッジ比率 [ライン （ IV ） （ a ）
(b)ライン （ IV ） （ b ）.
致す：Bank of America ， N. A. ，管理代理人として女性たち、さんたち：
(c)2021 年 2 月 19 日付の特定の信用契約 （ 随時、修正、再表示、修正、再表示、延長、補足、またはその他の変更 ） に言及します。.
(i)信用協定
(ii)」と定義された用語は、ここで定義されたように使用されます ） 、 AeroVironment Inc. 、デラウェア · コーポレーション （ The Delaware Corporation ）
(A)借款人
(B)」 ） 、保証人当事者、貸し手当事者、バンク · オブ · アメリカ、 N. A 、管理代理人、スイングライン貸し手、および L / C 発行者、およびその他の L / C 発行者の当事者として。
(C)借り手はここで請求します(1つを選択)：
(D) A [回転借入] [増額借入]
(E) [回転ローン] [増分期間のローン] の [転換] [継続]オン ：
(F)（ 1 営業日 ）
(iii)の元本金額で ：
(d) , 構成 ： [基本金利貸付] [期間 SOFR 貸付]SOFR ローンのための期間 ： 利息期間の [With当該借入に関して、借入者は、 [（ a ） 当該要求が信用契約のセクション 2.0 1 [（ b ）] [（ c ）] の要件を満たしていること、および （ b ）] 当該借入の日において、信用契約のセクション 4.0 2 （ a ） 、 （ b ） および （ d ） に規定されている条件のそれぞれが満たされていることをここに表明し、保証します。署名ページは以下のとおりです その証として、下記署名者は、上記に最初に書かれた日付において、この融資通知を正当な権限を与えられた役員によって実行させた。 航空環境会社デラウェア州の会社投稿者：
(e) .
(i)
(ii)
タイトル ： 添付ファイルE[FORmの] ローン支払のお知らせ 日付 ： ________ 、 ________致す：Bank of America ， N. A. ，【管理代理人】【スイングライン貸し手】としてBank of America ， N. A. ，行政代理人として]女性たち、さんたち：2021 年 2 月 19 日付の特定の信用契約 （ 随時、修正、再表示、修正、再表示、延長、補足、またはその他の変更 ） に言及します。信用協定」と定義された用語は、ここで定義されたように使用されます ） 、 AeroVironment Inc. 、デラウェア · コーポレーション （ The Delaware Corporation ）借款人」 ） 、保証人当事者、貸し手当事者、 Bank of America ， N. A. 、管理代理人、スイングライン貸し手、および L / C 発行者、およびその他の L / C 発行者の当事者として。借り手は、信用契約のセクション 2.0 5 （ a ） の条件に従って、借り手は、以下により具体的に記載されているように、ローンを前払い / 返済する意向があることを、ここに [管理代理人] [およびスイングライン貸し手] に通知します。以下の金額の [回転ローン] [増分期間のローン] の自発的な前払い ：
(iii)ターム SOFR ローン ： $ 適用利息期間 ：
(f) i基本金利ローン ： $ii , 以下の金額のスイングラインローンの自発的な前払い ： $ 署名ページは以下のとおりです その証として、下記署名者は、上記に最初に書かれた日付において、このローン前払い通知を正当な権限を与えられた役員によって実行させた。
デラウェア州の会社投稿者： , 名前 ：
(g)タイトル ：
(i)付属品F
(ii)[フォーマット]保証側指定通知
(iii)日付：_
(iv)致す：
(v)アメリカ銀行ノースカロライナ州は行政代理として
(vi)女性たち、さんたち：
(vii)
(viii)設計者)は、以下に言及する特定のクレジットプロトコルの行政エージェントとして、米国銀行に支払われる。本明細書で定義されていないすべての大文字用語は、クレジットプロトコルにおいてそれらを与える意味を有するべきである。
(h)借款人)、保証者、時々借入先、行政代理である米国銀行、Swingline貸金人、L/信用状発行者、およびL/信用証発行者は、2021年2月19日に特定の信用協定を締結している(時々改訂、再記述、改訂および再記述、延期、補充、または他の方法で修正される)
(i)信用協定)これにより、借り手にいくつかの融資および財務的融通を提供している信用協定の側面から、貸手または貸手を許可する関連会社は、信用協定と担保文書に基づいて“現金管理協定”“交換契約”“二国間信用状”を[“保証付き現金管理協定”]“”担保付きヘッジプロトコル“][保証付き二国間信用証”]に指定するしたがって、設計者は、本保険者指定通知に署名し、交付することに同意した。, そこで，現在，家屋と他の良好で価値のある対価格を考慮し，ここでは十分な受信と十分であることを確認し，双方は以下のように同意している名前.名前 それは.発送者は下記の[現金管理協定][スワップ契約][二国間信用状]を指定する
(i)表1付き
(ii)本プロトコルは[“担保付き現金管理プロトコル”][“担保付きヘッジプロトコル”][“担保付き二国間信用状”]であり，ここで行政エージェントにこの“現金管理プロトコル][互換契約][二国間信用証”が指定された融資文書下のすべての要求を満たすことを宣言し，保証する.*本“信用協定”に規定されている本“保証者指定通知”に署名及び交付することにより、設計者は、“担保現金管理協定”“担保二国間信用状”提供者として適用されるすべての条項の制約に適用されることに同意し、(A)融資文書のコピー及び適切と思われる他の文書及び情報を受信したことを確認し、自己決定により、本保証側指定通知を締結することができる
(iii)(C)融資文書の条項に制約されることに同意し、その条項に基づいて融資文書条項を履行し、“現金管理協定”“スワップ契約”“二国間信用証”の提供者が履行しなければならないすべての義務として要求する。*上記の規定を制限しない場合、設計者は、クレジット協定第11.04(C)条の規定に従って行政エージェントを賠償することに同意する。
(iv)管治法
それは.本保証人指定通知書
保証人指定通知
(j)
(k)署名ページは以下のとおりです 以下の署名者は、本保険者に、それぞれ正式に許可された高級職員に、上記で初めて明記された日に正式に署名して交付するように通知を促したことを証明する。
(l)投稿者： 名前 ：タイトル ：銀行 アメリカ、 N. A. 、管理エージェントとして投稿者：
(m)
名前 ：タイトル ：
(n)表1付き[Cash管理契約 [スワップ契約] [二国間信用書] ,
(o) 添付ファイルG[FORm【 SOLVENCY CERTIFICATE 】, 【日付】2021 年 2 月 19 日付の特定の信用契約 （ 本契約の日付以前に、 [__] [修正] に関連して含め、随時修正、修正、延長、補足、またはその他の方法で変更されたもの ） に言及します。信用協定”）， by and among AeroVironment， Inc.デラウェア · コーポレーション （ The Delaware Corporation ）借款人」 ） 、保証人当事者、貸し手当事者、バンク · オブ · アメリカ、 N. A. 、管理代理人、スイングライン貸し手、および L / C 発行者、およびその他の L / C 発行者の当事者として。本規約で使用される大文字の用語は、信用契約に規定されている意味を有します。このソルベンシー証明書 （ この “ ）支払能力証明書」 （ 略 ） 、「 （ 略 ） 」 （ 略 ） 、「 （ 略 ）適用可能な文書を説明する
(p)“()”
本人、[__]、借り手の首席財務官は、本人が借り手の首席財務官であることを個人身分で証明するのではなく、本人は借り手及びその付属会社の業務及び資産を熟知しており、本人は適切であると思う他の調査及び照会を行い、信用協定に従って借主を代表して本支払能力証明書に署名することを正式に許可されている。
本人は借り手の首席財務官としてのみ、私個人としてではなく、(A)借り手及びその付属会社の財産の総合ベースでの公正価値が、借り手及びその付属会社の総合ベースの負債総額よりも大きいことをさらに証明し、(B)借り手及びその付属会社の資産の総合ベースでの現在の公平な売却可能価値である。(C)借り手及びその付属会社は、合併に基づいて意図しておらず、また、借り手及びその付属会社が合併に基づいて満期債務を返済する能力を超えた債務又は負債を発生させると信じていない。(D)借り手及びその付属会社は、合併に基づいて業務又は取引に従事しておらず、業務又は取引に従事するつもりもなく、業務又は取引に従事するつもりもない。借り手及びその付属会社の財産は、総合的な基礎の上で不合理な少額資本を構成し、及び(E)借り手及びその付属会社は、総合的な基礎の上で正常な業務過程で満期になったときにその債務及び負債、又は債務及びその他の約束を償還する能力がある。3.この条例の目的のために、いつでも、または負債のある額は、その時点に存在するすべての事実および状況に基づいて、実際の負債または満期負債となることが合理的に予想される額として計算されなければならない。
(q)ページの残りをわざと空にする.
(i) 私はすでに上記の日に本支払能力証明書に署名したことを証明した。, デラウェア州の会社投稿者： 名前 ：
(ii)タイトル ：最高財務責任者 <img src="https://www.sec.gov/akam/13/pixel_7edab101?a=dD0zNjk0MDAyODhlMDk0YzQxOTY4MjJiZDNkODNlNWQwODY3ODRmZWFjJmpzPW9mZg==" style="visibility: hidden; position: absolute; left: -999px; top: -999px;" /> shall be applied by the Administrative Agent to reimburse the applicable L/C Issuers for L/C Disbursements for which it has not been reimbursed, together with related fees, costs, and customary processing charges, and, to the extent not so applied, shall be held for the satisfaction of the reimbursement obligations of the Borrower for the L/C Obligations at such time or, if the maturity of the Revolving Loans has been accelerated (but subject to the consent of Revolving Lenders with L/C Obligations representing at least fifty percent (50%) of the total L/C Obligations), be applied to satisfy other obligations of the Borrower under this Agreement. If the Borrower is required to provide an amount of Cash Collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrower within three (3) Business Days after all Events of Default have been cured or waived.
(r)Letters of Credit Issued for Subsidiaries. Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the account of, a Subsidiary, the Borrower shall be obligated to reimburse the applicable L/C Issuer hereunder for any and all drawings under such Letter of Credit. The Borrower hereby acknowledges that the issuance of Letters of Credit for the account of a Subsidiary inures to the benefit of the Borrower, and that the Borrower’s business derives substantial benefits from the business of such Subsidiary.
(s)Additional L/C Issuers. Any Lender may become an L/C Issuer upon receipt by the Administrative Agent of a fully executed Notice of Additional L/C Issuer which shall be signed by the Borrower, the Administrative Agent and such Lender. Each Lender that becomes an L/C Issuer pursuant to this Section 2.03(s) shall provide its L/C Commitment in such Notice of Additional L/C Issuer and upon the receipt by the Administrative Agent of the fully executed Notice of Additional L/C Issuer, the defined term L/C Commitment shall be deemed amended to incorporate the L/C Commitment of such new L/C Issuer.
(t)L/C Issuer Reports. Unless otherwise agreed by the Administrative Agent, each L/C Issuer shall: (i) prior to the time that such L/C Issuer amends, renews, increases, or extends a Letter of Credit, notify the Administrative Agent of the date of such amendment, renewal, increase, or extension and the stated amount of the applicable Letter of Credit after giving effect to such amendment, renewal, increase, or extension; (ii) on each Business Day on which such L/C Issuer makes a payment pursuant to a Letter of Credit, notify the Administrative Agent of the date and amount of such payment; (iii) on any Business Day on which the Borrower fails to reimburse a payment made pursuant to a Letter of Credit required to be reimbursed to such L/C Issuer on such day, notify the Administrative Agent of the date of such failure and the amount of such payment; (iv) on any Business Day on which any Letter of Credit issued by such L/C Issuer expires or is cancelled, notify the Administrative Agent of the date of such expiration or cancellation; and (v) for so long as any Letter of Credit issued by such L/C issuer is outstanding, deliver to the Administrative Agent, within five (5) Business Days after the beginning of each calendar month, a report (in form and substance satisfactory to the Administrative Agent) with respect to each Letter of Credit issued by such L/C Issuer.
(a)The Swingline. Subject to the terms and conditions set forth herein, the Swingline Lender, in reliance upon the agreements of the other Lenders set forth in this Section 2.04, may in its sole discretion make loans to the Borrower (each such loan, a “Swingline Loan”). Each such Swingline Loan may be made, subject to the terms and conditions set forth herein, to the Borrower, in Dollars, from time to time on any Business Day during the Availability Period in an aggregate amount not to exceed at any time outstanding the amount of the Swingline Sublimit; provided, that, (i) after giving effect to any Swingline Loan, (A) the Total Revolving Outstandings shall not exceed the Revolving Facility, (B) the Revolving Exposure of any Revolving Lender shall not exceed such Lender’s Revolving Commitment, and (C) the aggregate amount of all Swingline Loans outstanding shall not exceed the Swingline Commitment, (ii) the Borrower shall not use the proceeds of any Swingline Loan to refinance any outstanding Swingline Loan, and (iii) the Swingline Lender shall not be under any obligation to make any Swingline Loan if it shall determine (which determination shall be conclusive and binding absent manifest error) that it has, or by such Credit Extension may have, Fronting Exposure. Within the foregoing limits, and subject to the other terms and conditions hereof, the Borrower may borrow Swingline Loans under this Section 2.04, prepay Swingline Loans under Section 2.05, and reborrow Swingline Loans under this Section 2.04. Immediately upon the making of a Swingline Loan, each Revolving Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swingline Lender a risk participation in such Swingline Loan in an amount equal to the product of such Revolving Lender’s Applicable Revolving Percentage times the amount of such Swingline Loan.
(b)Borrowing Procedures. Each Swingline Borrowing shall be made upon the Borrower’s irrevocable notice to the Swingline Lender and the Administrative Agent, which may be given by telephone or a Swingline Loan Notice; provided, that, any telephonic notice must be
confirmed promptly by delivery to the Swingline Lender and the Administrative Agent of a Swingline Loan Notice. Each such Swingline Loan Notice must be received by the Swingline Lender and the Administrative Agent not later than 10:00 a.m. on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum of $100,000, and (ii) the requested date of the Swingline Borrowing (which shall be a Business Day). Promptly after receipt by the Swingline Lender of any Swingline Loan Notice, the Swingline Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swingline Loan Notice and, if not, the Swingline Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof. Unless the Swingline Lender has received notice (by telephone or in writing) from the Administrative Agent (including at the request of any Revolving Lender) prior to 11:00 a.m. on the date of the proposed Swingline Borrowing (A) directing the Swingline Lender not to make such Swingline Loan as a result of the limitations set forth in the proviso to the second sentence of Section 2.04(a), or (B) that one or more of the applicable conditions specified in Article IV is not then satisfied, then, subject to the terms and conditions hereof, the Swingline Lender may make the amount of its Swingline Loan available to the Borrower at its office by crediting the account of the Borrower on the books of the Swingline Lender in immediately available funds.
(c)Refinancing of Swingline Loans.
(i)The Swingline Lender at any time in its sole discretion may request, on behalf of the Borrower (which hereby irrevocably authorizes the Swingline Lender to so request on its behalf), that each Revolving Lender make a Revolving Loan that is a Base Rate Loan in an amount equal to such Revolving Lender’s Applicable Revolving Percentage of the amount of Swingline Loans then outstanding. Such request shall be made in writing (which written request shall be deemed to be a Loan Notice for purposes hereof) and in accordance with the requirements of Section 2.02, without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the Revolving Facility and the conditions set forth in Section 4.02. The Swingline Lender shall furnish the Borrower with a copy of the applicable Loan Notice promptly after delivering such notice to the Administrative Agent. Each Revolving Lender shall make an amount equal to its Applicable Revolving Percentage of the amount specified in such Loan Notice available to the Administrative Agent in immediately available funds for the account of the Swingline Lender at the Administrative Agent’s Office not later than 10:00 a.m. on the day specified in such Loan Notice, whereupon, subject to Section 2.04(c)(ii), each Revolving Lender that so makes funds available shall be deemed to have made a Revolving Loan that is a Base Rate Loan to the Borrower in such amount. The Administrative Agent shall remit the funds so received to the Swingline Lender.
(ii)If for any reason any Swingline Loan cannot be refinanced by such a Revolving Borrowing in accordance with Section 2.04(c)(i) (including the failure to satisfy the conditions set forth in Section 4.02), the request for Base Rate Loans submitted by the Swingline Lender as set forth herein shall be deemed to be a request by the Swingline Lender that each of the Revolving Lenders fund its risk participation in the relevant Swingline Loan and each Revolving Lender’s payment to the Administrative Agent for the account of the Swingline Lender pursuant to Section 2.04(c)(i) shall be deemed payment in respect of such participation.
(iii)If any Revolving Lender fails to make available to the Administrative Agent for the account of the Swingline Lender any amount required to be paid by such
Lender pursuant to the foregoing provisions of this Section 2.04(c) by the time specified in Section 2.04(c)(i), the Swingline Lender shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swingline Lender at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by the Swingline Lender in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Swingline Lender in connection with the foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Revolving Loan included in the relevant Revolving Borrowing or funded participation in the relevant Swingline Loan, as the case may be. A certificate of the Swingline Lender submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this clause (iii) shall be conclusive absent manifest error.
(iv)Each Revolving Lender’s obligation to make Revolving Loans or to purchase and fund risk participations in Swingline Loans pursuant to this Section 2.04(c) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the Swingline Lender, the Borrower or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided, that, each Revolving Lender’s obligation to make Revolving Loans pursuant to this Section 2.04(c) is subject to the conditions set forth in Section 4.02 (other than delivery by the Borrower of a Loan Notice). No such funding of risk participations shall relieve or otherwise impair the obligation of the Borrower to repay Swingline Loans, together with interest as provided herein.
(d)Repayment of Participations.
(i)At any time after any Revolving Lender has purchased and funded a risk participation in a Swingline Loan, if the Swingline Lender receives any payment on account of such Swingline Loan, the Swingline Lender will distribute to such Revolving Lender its Applicable Revolving Percentage thereof in the same funds as those received by the Swingline Lender.
(ii)If any payment received by the Swingline Lender in respect of principal or interest on any Swingline Loan is required to be returned by the Swingline Lender under any of the circumstances described in Section 11.05 (including pursuant to any settlement entered into by the Swingline Lender in its discretion), each Revolving Lender shall pay to the Swingline Lender its Applicable Revolving Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned, at a rate per annum equal to the Federal Funds Rate. The Administrative Agent will make such demand upon the request of the Swingline Lender. The obligations of the Lenders under this clause (ii) shall survive the Facility Termination Date and the termination of this Agreement.
(e)Interest for Account of Swingline Lender. The Swingline Lender shall be responsible for invoicing the Borrower for interest on the Swingline Loans. Until each Revolving Lender funds its Base Rate Loan or risk participation pursuant to this Section 2.04 to refinance such Revolving Lender’s Applicable Revolving Percentage of any Swingline Loan, interest in
respect of such Applicable Revolving Percentage shall be solely for the account of the Swingline Lender.
(f)Payments Directly to Swingline Lender. The Borrower shall make all payments of principal and interest in respect of the Swingline Loans directly to the Swingline Lender.
(a)Optional.
(i)The Borrower may, upon notice to the Administrative Agent pursuant to delivery to the Administrative Agent of a Notice of Loan Prepayment, at any time or from time to time voluntarily prepay Incremental Term Loans and/or Revolving Loans in whole or in part without premium or penalty (subject to Section 3.05); provided, that, unless otherwise agreed by the Administrative Agent: (A) such notice must be received by the Administrative Agent not later than 10:00 a.m. (1) two (2) Business Days prior to any date of prepayment of Term SOFR Loans, and (2) on the date of prepayment of Base Rate Loans; (B) any prepayment of Term SOFR Loans shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof (or, if less, the entire principal amount thereof then outstanding); and (C) any prepayment of Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof (or, if less, the entire principal amount thereof then outstanding). Each such notice shall specify the date and amount of such prepayment and the Type(s) of Loans to be prepaid and, if Term SOFR Loans are to be prepaid, the Interest Period(s) of such Loans. The Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of such Lender’s ratable portion of such prepayment (based on such Lender’s Applicable Percentage in respect of the relevant Facility). If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Term SOFR Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05. Each prepayment of the outstanding Term Loans pursuant to this Section 2.05(a) shall be applied to the principal repayment installments thereof as directed by the Borrower (or, if no such direction is provided by the Borrower, such prepayment shall be applied to all then-existing Term Loans on a pro rata basis, and, with respect to each then-existing Term Facility, to the principal repayment installments thereof in inverse order of maturity). Subject to Section 2.15, such prepayments shall be paid to the Lenders in accordance with their respective Applicable Percentages in respect of each of the relevant Facilities. Each prepayment of Incremental Term Loans under any Incremental Term Facility shall be applied to the principal repayment installments thereof as set forth in the Incremental Term Facility Agreement entered into with respect to such Incremental Term Facility.
(ii)The Borrower may, upon notice to the Swingline Lender pursuant to delivery to the Swingline Lender of a Notice of Loan Prepayment (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swingline Loans in whole or in part without premium or penalty; provided, that, unless otherwise agreed by the Swingline Lender, (A) such notice must be received by the Swingline Lender and the Administrative Agent not later than 10:00 a.m. on the date of the prepayment, and (B) any such prepayment shall be in a minimum principal amount of $100,000 or a whole multiple of $100,000 in excess thereof (or, if less, the entire
principal thereof then outstanding). Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.
(b)Mandatory.
(i)Dispositions and Involuntary Dispositions. The Borrower shall prepay the Loans as provided in Section 2.05(b)(iii) in an aggregate amount equal to one hundred percent (100%) of the Net Cash Proceeds received by any Loan Party or any Subsidiary from all Dispositions (other than Permitted Transfers) and all Involuntary Dispositions, within three (3) Business Days of the date of such Disposition or such Involuntary Disposition; provided, that: (A) the Borrower shall not be required to prepay the Loans pursuant to this Section 2.05(b)(i) until the Net Cash Proceeds received by the Borrower and its Subsidiaries in connection with all Dispositions (other than Permitted Transfers) or Involuntary Dispositions in any fiscal year of the Borrower is equal to or exceeds $10,000,000; and (B) such Net Cash Proceeds shall not be required to be so applied if, at the election of the Borrower (as notified by the Borrower to the Administrative Agent on or prior to the date of such Disposition or such Involuntary Disposition), so long as no Event of Default shall have occurred at the time of such Disposition or such Involuntary Disposition or at the time of such reinvestment, such Loan Party or such Subsidiary reinvests all or any portion of such Net Cash Proceeds in Eligible Assets within one hundred eighty (180) days of the date of such Disposition or such Involuntary Disposition (or to the extent such Loan Party or such Subsidiary commits within such one hundred eighty (180)-day period to make such reinvestment, within one hundred eighty (180) days after such one hundred eighty (180)-day period); provided, further, that, if such Net Cash Proceeds shall have not been so reinvested by the end of such period(s), such Net Cash Proceeds shall be immediately applied to prepay the Loans as provided in Section 2.05(b)(iii).
(ii)Debt Issuance. Promptly upon the receipt by any Loan Party or any Subsidiary of the Net Cash Proceeds of any Debt Issuance, the Borrower shall prepay the Loans as provided in Section 2.05(b)(iii) in an aggregate amount equal to one hundred percent (100%) of such Net Cash Proceeds.[Reserved].
(iii)Application of Payments. Each prepayment required pursuant to Section 2.05(b)(i) or Section 2.05(b)(ii) shall be applied, first, to the principal repayment installments of the then-existing Term A Loans in inverse order of maturity, second, to the outstanding Swingline Loans, and third, to the outstanding Revolving Loans (without a corresponding permanent reduction of the Revolving Facility). Subject to Section 2.15, such prepayments shall be paid to the Lenders in accordance with their respective Applicable Percentages in respect of the relevant Facilities.[Reserved].
(iv)Revolving Outstandings. If for any reason the Total Revolving Outstandings at any time exceed the Revolving Facility at such time, the Borrower shall immediately prepay Revolving Loans, Swingline Loans and Unreimbursed Amounts (together with all accrued but unpaid interest thereon) and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided, that, the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section
2.05(b)(iv) unless, after the prepayment of the Revolving Loans and Swingline Loans, the Total Revolving Outstandings at such time exceed the Revolving Facility at such time.
Within the parameters of the applications set forth above, prepayments pursuant to this Section 2.05(b) shall be applied first to Base Rate Loans and then to Term SOFR Loans in direct order of Interest Period maturities. All prepayments under this Section 2.05(b) shall be subject to Section 3.05, but otherwise without premium or penalty, and shall be accompanied by interest on the principal amount prepaid through the date of prepayment.
2.06Termination or Reduction of Commitments.
(a)Optional. The Borrower may, upon notice to the Administrative Agent, terminate the Revolving Facility, the Letter of Credit Sublimit or the Swingline Sublimit, or from time to time permanently reduce the Revolving Facility, the Letter of Credit Sublimit or the Swingline Sublimit; provided, that, unless otherwise agreed by the Administrative Agent, (i) any such notice shall be received by the Administrative Agent not later than 10:00 a.m. five (5) Business Days prior to the date of termination or reduction, (ii) any such partial reduction shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof, and (iii) the Borrower shall not terminate or reduce (A) the Revolving Facility if, after giving effect thereto and to any concurrent prepayments hereunder, the Total Revolving Outstandings would exceed the Revolving Facility, (B) the Letter of Credit Sublimit if, after giving effect thereto, the Outstanding Amount of L/C Obligations not fully Cash Collateralized hereunder would exceed the Letter of Credit Sublimit, or (C) the Swingline Sublimit if, after giving effect thereto and to any concurrent prepayments hereunder, the Outstanding Amount of Swingline Loans would exceed the Swingline Sublimit.
(b)Mandatory.
(i)The aggregate Term A Commitments shall be automatically and permanently reduced to zero upon the Term A Borrowing to occur on the Closing Date. TheIf not terminated prior to such date, the Revolving Facility shall automatically terminate on the Revolving Facility Maturity Date.
(ii)If after giving effect to any reduction or termination of Revolving Facility under this Section 2.06, the Letter of Credit Sublimit or the Swingline Sublimit at such time exceeds the Revolving Facility at such time, the Letter of Credit Sublimit or the Swingline Sublimit, as the case may be, shall be automatically reduced by the amount of such excess.
(c)Application of Commitment Reductions; Payment of Fees. The Administrative Agent will promptly notify the Lenders of any termination or reduction of the Letter of Credit Sublimit, the Swingline Sublimit or the Revolving Facility under this Section 2.06. Upon any reduction of the Revolving Facility, the Revolving Commitment of each Revolving Lender shall be reduced by such Lender’s Applicable Revolving Percentage of such reduction amount. All fees in respect of the Revolving Facility accrued until the effective date of any termination of the Revolving Facility shall be paid on the effective date of such termination.
(a)Term A Loans. The Borrower shall repay to the Term A Lenders the outstanding principal amount of the Term A Loans in installments on the last Business Day of each March,
June, September and December (commencing on the last Business Day of June 2021) and on the Term A Facility Maturity Date, in each case, in the respective amounts set forth in the table below (which amounts shall be reduced as a result of the application of prepayments in accordance with the order of priority set forth in Section 2.05), unless accelerated sooner pursuant to Section 8.02:[Reserved].
Principal Amortization Payment | |
June, 2021 | 1.250% |
September, 2021 | 1.250% |
December, 2021 | 1.250% |
March, 2022 | 1.250% |
June, 2022 | 1.250% |
September, 2022 | 1.250% |
December, 2022 | 1.250% |
March, 2023 | 1.250% |
June, 2023 | 1.250% |
September, 2023 | 1.250% |
December, 2023 | 1.250% |
March, 2024 | 1.250% |
June, 2024 | 1.250% |
September, 2024 | 1.250% |
December, 2024 | 1.250% |
March, 2025 | 1.250% |
June, 2025 | 1.250% |
September, 2025 | 1.250% |
December, 2025 | 1.250% |
Term A Facility Maturity Date | Outstanding Principal Balance of Term A Loans |
provided, that, the final principal repayment installment of the Term A Loans shall be repaid on the Term A Facility Maturity Date and in any event shall be in an amount equal to the aggregate principal amount of all Term A Loans outstanding on such date.
(b)Revolving Loans. The Borrower shall repay to the Revolving Lenders on the Revolving Facility Maturity Date the aggregate principal amount of all Revolving Loans outstanding on such date.
(c)Swingline Loans. The Borrower shall repay each Swingline Loan on the earlier to occur of (i) the date ten (10) Business Days after such Swingline Loan is made, and (ii) the Revolving Facility Maturity Date.
2.08Interest and Default Rate.
(a)Interest. Subject to the provisions of Section 2.08(b), (i) each Term SOFR Loan shall bear interest on the outstanding principal amount thereof for each Interest Period from the applicable borrowing date at a rate per annum equal to Term SOFR for such Interest Period plus the Applicable Rate for Term SOFR Loans; (ii) each Base Rate Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate for Base Rate Loans; and (iii) each Swingline Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate for Base Rate Loans. Subject to the definition of “Base Rate,” to the extent that any calculation of interest or any fee required to be paid under this Agreement shall be based on (or result in) a calculation that is less than zero, such calculation shall be deemed zero for purposes of this Agreement.
(b)Default Rate.
(i)If (A) any amount of principal of any Loan is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, or (B) an Event of Default pursuant to Section 8.01(f) or Section 8.01(g) exists, all outstanding Obligations shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.
(ii)If any amount (other than principal of any Loan) payable by any Loan Party under any Loan Document is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, then upon the request of the Required Lenders, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.
(iii)Upon the request of the Required Lenders, while any Event of Default exists, all outstanding Obligations (including Letter of Credit Fees) shall accrue at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.
(iv)Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand.
(c)Interest Payments. Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein. 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.
In addition to certain fees described in Sections 2.03(l) and (m):
(a)Commitment Fee. The Borrower shall pay to the Administrative Agent for the account of each Revolving Lender in accordance with its Applicable Revolving Percentage, a commitment fee (the “Commitment Fee”) equal to the Applicable Rate times the actual daily
amount by which the Revolving Facility exceeds the sum of (i) the Outstanding Amount of Revolving Loans, plus (ii) the Outstanding Amount of L/C Obligations, subject to adjustment as provided in Section 2.15. For the avoidance of doubt, the Outstanding Amount of Swingline Loans shall not be counted towards or considered usage of the Revolving Facility for purposes of determining the Commitment Fee. The Commitment Fee shall accrue at all times during the Availability Period, including at any time during which one or more of the conditions in Article IV is not met, and shall be due and payable quarterly in arrears on the seventh (7th) Business Day following the end of each March, June, September and December, commencing with the first such date to occur after the Closing Date, and on the last day of the Availability Period. The Commitment Fee shall be calculated quarterly in arrears, and if there is any change in the Applicable Rate during any quarter, the actual daily amount shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect.
(b)Other Fees.
(i)The Borrower shall pay to the Administrative Agent and BofA Securities, for their own respective accounts, fees in the amounts and at the times specified in the Fee Letter. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.
(ii)The Borrower shall pay to the Lenders such fees as shall have been separately agreed upon in writing in the amounts and at the times so specified. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.
2.10Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate.
(a)Computation of Interest and Fees. All computations of interest for Base Rate Loans (including Base Rate Loans determined by reference to Term SOFR) shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365 day year). Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid; provided, that, any Loan that is repaid on the same day on which it is made shall, subject to Section 2.12(a), bear interest for one (1) day. Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.
(b)Financial Statement Adjustments or Restatements. If, as a result of any restatement of or other adjustment to the financial statements of the Borrower and its Subsidiaries or for any other reason, the Borrower or the Lenders determine that (i) the Consolidated Leverage Ratio as calculated by the Borrower as of any applicable date was inaccurate, and (ii) a proper calculation of the Consolidated Leverage Ratio would have resulted in higher pricing and fees for such period, the Borrower shall immediately and retroactively be obligated to pay to the Administrative Agent for the account of the applicable Lenders or the applicable L/C Issuers, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code of the United States, automatically and without further action by the Administrative Agent, any Lender or any L/C Issuer), an amount equal to the excess of the amount of interest and fees that should have been paid for such period over the amount of interest and fees actually paid for
such period. This Section 2.10(b) shall not limit the rights of the Administrative Agent, any Lender or any L/C Issuer, as the case may be, under any provision of this Agreement to payment of any Obligations hereunder at the Default Rate or under Article VIII. The Borrower’s obligations under this Section 2.10(b) shall survive the termination of the Facility Termination Date.
(a)Maintenance of Accounts. The Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender in the ordinary course of business. The Administrative Agent shall maintain the Register in accordance with Section 11.06(c). The accounts or records maintained by each Lender shall be conclusive absent manifest error of the amount of the Credit Extensions made by the Lenders to the Borrower and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Lender and the Register, the Register shall control in the absence of manifest error. Upon the request of any Lender made through the Administrative Agent, the Borrower shall execute and deliver to such Lender (through the Administrative Agent) a promissory note in the form of Exhibit I (each, a “Note”), which shall evidence such Lender’s Loans in addition to such accounts or records. Each Lender may attach schedules to its Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto.
(b)Maintenance of Records. In addition to the accounts and records referred to in Section 2.11(a), each Lender and the Administrative Agent shall maintain in accordance with its usual practice accounts or records evidencing the purchases and sales by such Lender of participations in Letters of Credit and Swingline Loans. In the event of any conflict between the accounts and records maintained by the Administrative Agent and the accounts and records of any Lender in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error.
2.12Payments Generally; Administrative Agent’s Clawback.
(a)General. All payments to be made by the Borrower shall be made free and clear of and without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the Administrative Agent’s Office in Dollars and in immediately available funds not later than 11:00 a.m. on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Applicable Percentage in respect of the relevant Facility (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office. All payments received by the Administrative Agent after 11:00 a.m. shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. Except as otherwise specifically provided for in this Agreement, if any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be.
(b)(i)Funding by Lenders; Presumption by Administrative Agent. Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing of Term SOFR Loans (or, in the case of any Borrowing of Base Rate
Loans, prior to 9:00 a.m. on the date of such Borrowing) that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 (or, in the case of a Borrowing of Base Rate Loans, that such Lender has made such share available in accordance with and at the time required by Section 2.02) and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii)Payments by Borrower; Presumptions by Administrative Agent. Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or any L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the applicable L/C Issuer, as the case may be, the amount due. With respect to any payment that the Administrative Agent makes for the account of the Lenders or any L/C Issuer hereunder as to which the Administrative Agent determines (which determination shall be conclusive absent manifest error) that any of the following applies (such payment referred to as the “Rescindable Amount”): (A) the Borrower has not in fact made such payment; (B) the Administrative Agent has made a payment in excess of the amount so paid by the Borrower (whether or not then owed); or (C) the Administrative Agent has for any reason otherwise erroneously made such payment; then each of the Lenders or the applicable L/C Issuer, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the Rescindable Amount so distributed to such Lender or such L/C Issuer, in immediately available funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.
A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this Section 2.12(b) shall be conclusive, absent manifest error.
(c)Failure to Satisfy Conditions Precedent. If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(d)Obligations of Lenders Several. The obligations of the Lenders hereunder to make Incremental Term Loans and Revolving Loans, to fund participations in Letters of Credit and Swingline Loans and to make payments pursuant to Section 11.04(c) are several and not joint. The failure of any Lender to make any Loan, to fund any such participation or to make any payment under Section 11.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, to purchase its participation or to make its payment under Section 11.04(c).
(e)Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(f)Pro Rata Treatment. Except to the extent otherwise provided herein: (i) each Borrowing (other than Swingline Borrowings) shall be made from the Appropriate Lenders, each payment of fees under Section 2.03(l), Section 2.03(m) and Section 2.09 shall be made for account of the Appropriate Lenders, and each termination or reduction of the amount of the Commitments shall be applied to the respective Commitments of the Lenders, pro rata according to the amounts of their respective Commitments; (ii) each Borrowing shall be allocated pro rata among the Lenders according to the amounts of their respective Commitments (in the case of the making of Revolving Loans) or their respective Loans that are to be included in such Borrowing (in the case of conversions and continuations of Loans); (iii) each payment or prepayment of principal of Loans by the Borrower shall be made for account of the Appropriate Lenders pro rata in accordance with the respective unpaid principal amounts of the Loans held by them; and (iv) each payment of interest on Loans by the Borrower shall be made for account of the Appropriate Lenders pro rata in accordance with the amounts of interest on such Loans then due and payable to the respective Appropriate Lenders.
2.13Sharing of Payments by Lenders.
If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of (a) Obligations in respect of any of the Facilities due and payable to such Lender hereunder and under the other Loan Documents at such time in excess of its ratable share (according to the proportion of (i) the amount of such Obligations due and payable to such Lender at such time, to (ii) the aggregate amount of the Obligations in respect of the Facilities due and payable to all Lenders hereunder and under the other Loan Documents at such time) of payments on account of the Obligations in respect of the Facilities due and payable to all Lenders hereunder and under the other Loan Documents at such time obtained by all the Lenders at such time, or (b) Obligations in respect of any of the Facilities owing (but not due and payable) to such Lender hereunder and under the other Loan Documents at such time in excess of its ratable share (according to the proportion of (i) the amount of such Obligations owing (but not due and payable) to such Lender at such time, to (ii) the aggregate amount of the Obligations in respect of the Facilities owing (but not due and payable) to all Lenders hereunder and
under the other Loan Documents at such time) of payments on account of the Obligations in respect of the Facilities owing (but not due and payable) to all Lenders hereunder and under the other Loan Documents at such time obtained by all of the Lenders at such time, then, in each case under clauses (a) and (b) above, the Lender receiving such greater proportion shall (A) notify the Administrative Agent of such fact, and (B) purchase (for cash at face value) participations in the Loans and subparticipations in L/C Obligations and Swingline Loans of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of Obligations in respect of the Facilities then due and payable to the Lenders or owing (but not due and payable) to the Lenders, as the case may be; provided, that: (1) if any such participations or subparticipations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations or subparticipations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and (2) the provisions of this Section 2.13 shall not be construed to apply to (x) any payment made by or on behalf of the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender), (y) the application of Cash Collateral provided for in Section 2.14, or (z) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or subparticipations in L/C Obligations or Swingline Loans to any assignee or participant, other than an assignment to any Loan Party or any Affiliate thereof (as to which the provisions of this Section 2.13 shall apply). Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under applicable Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against such Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Loan Party in the amount of such participation.
(a)Obligation to Cash Collateralize. At any time there shall exist a Defaulting Lender, within one (1) Business Day following the written request of the Administrative Agent or any L/C Issuer (with a copy to the Administrative Agent), the Borrower shall Cash Collateralize the L/C Issuers’ Fronting Exposure with respect to such Defaulting Lender (determined after giving effect to Section 2.15(a)(iv) and any Cash Collateral provided by such Defaulting Lender) in an amount not less than the Minimum Collateral Amount.
(b)Grant of Security Interest. The Borrower, and to the extent provided by any Defaulting Lender, such Defaulting Lender, hereby grants to (and subjects to the control of) the Administrative Agent, for the benefit of the Administrative Agent, the L/C Issuers and the Lenders, and agrees to maintain, a first priority security interest in all such cash, deposit accounts and all balances therein, and all other property so provided as Collateral pursuant hereto, and in all proceeds of the foregoing, all as security for the obligations to which such Cash Collateral may be applied pursuant to Section 2.14(c). If at any time the Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person other than the Administrative Agent or the applicable L/C Issuers as herein provided, or that the total amount of such Cash Collateral is less than the Minimum Collateral Amount, the Borrower will, promptly upon demand by the Administrative Agent, pay or provide to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency (determined in the case of Cash Collateral provided pursuant to Section 2.15(a)(v), after giving effect to Section 2.15(a)(v) and any Cash Collateral provided by the Defaulting Lender). All Cash Collateral (other than credit support not constituting funds subject to deposit) shall be maintained in one or more blocked, non-interest bearing deposit accounts at Bank of America. The Borrower shall pay on demand therefor from time to time all customary account opening, activity and other administrative fees and charges in connection with the maintenance and disbursement of Cash Collateral.
(c)Application. Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under any of this Section 2.14 or Sections 2.03, 2.05, 2.15 or 8.02 in respect of Letters of Credit shall be held and applied to the satisfaction of the specific L/C Obligations, obligations to fund participations therein (including, as to Cash Collateral provided by a Revolving Lender that is a Defaulting Lender, any interest accrued on such obligation) and other obligations for which the Cash Collateral was so provided, prior to any other application of such property as may be provided for herein.
(d)Release. Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting Exposure or to secure other obligations shall be released promptly following (i) the elimination of the applicable Fronting Exposure or other obligations giving rise thereto (including by the termination of Defaulting Lender status of the applicable Revolving Lender (or, as appropriate, its assignee following compliance with Section 11.06(b)(vi))), or (ii) the determination by the Administrative Agent and the applicable L/C Issuers that there exists excess Cash Collateral; provided, that, (A) any such release shall be without prejudice to, and any disbursement or other transfer of Cash Collateral shall be and remain subject to, any other Lien conferred under the Loan Documents and the other applicable provisions of the Loan Documents, and (B) the Person providing Cash Collateral and the applicable L/C Issuers may agree that Cash Collateral shall not be released but instead held to support future anticipated Fronting Exposure or other obligations.
(a)Adjustments. Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no longer a Defaulting Lender, to the extent permitted by applicable Law:
(i)Waivers and Amendments. Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in (A) the definitions of “Required Lenders” and “Required Revolving Lenders,” and (B) Section 11.01.
(ii)Defaulting Lender Waterfall. Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 11.08 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any L/C Issuer or the Swingline Lender hereunder; third, to Cash Collateralize the L/C Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.14; fourth, as the Borrower may request (so long as no Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to (A) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement, and (B) Cash Collateralize the L/C Issuers’ future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with Section 2.14; sixth, to the payment of any amounts owing to the Lenders, the L/C Issuers
or the Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, any L/C Issuer or the Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise as may be required under the Loan Documents in connection with any Lien conferred thereunder or directed by a court of competent jurisdiction; provided, that, if (1) such payment is a payment of the principal amount of any Loans or Unreimbursed Amounts in respect of which such Defaulting Lender has not fully funded its appropriate share, and (2) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and L/C Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or L/C Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in L/C Obligations and Swingline Loans are held by the Lenders pro rata in accordance with the Commitments hereunder without giving effect to Section 2.15(a)(v). Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.15(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(iii)Certain Fees.
(A)Fees. No Defaulting Lender shall be entitled to receive any portion of the Commitment Fee payable under Section 2.09(a) for any period during which that Lender is a Defaulting Lender (and the Borrower shall not be required to pay any portion of the Commitment Fee that otherwise would have been required to have been paid to that Defaulting Lender).
(B)Letter of Credit Fees. Each Defaulting Lender shall be entitled to receive Letter of Credit Fees for any period during which that Lender is a Defaulting Lender only to the extent allocable to its Applicable Revolving Percentage of the stated amount of Letters of Credit for which it has provided Cash Collateral pursuant to Section 2.14.
(C)Defaulting Lender Fees. With respect to any Letter of Credit Fee not required to be paid to any Defaulting Lender pursuant to clause (B) above, the Borrower shall (1) pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in L/C Obligations that has been reallocated to such Non-Defaulting Lender pursuant to clause (iv) below, (2) pay to the applicable L/C Issuer the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to such L/C Issuer’s Fronting Exposure to such Defaulting Lender, and (3) not be required to pay the remaining amount of any such fee.
(iv)Reallocation of Applicable Revolving Percentages to Reduce Fronting Exposure. All or any part of such Defaulting Lender’s participation in L/C Obligations
and Swingline Loans shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Revolving Percentages (calculated without regard to such Defaulting Lender’s Revolving Commitment) but only to the extent that such reallocation does not cause the aggregate Revolving Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Revolving Commitment. Subject to Section 11.20, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.
(v)Cash Collateral, Repayment of Swingline Loans. If the reallocation described in clause (a)(iv) above cannot, or can only partially, be effected, the Borrower shall, without prejudice to any right or remedy available to it hereunder or under applicable Law, (A) first, prepay Swingline Loans in an amount equal to the Swingline Lender’s Fronting Exposure, and (B) second, Cash Collateralize the L/C Issuers’ Fronting Exposure in accordance with the procedures set forth in Section 2.14.
(b)Defaulting Lender Cure. If the Borrower, the Administrative Agent, the Swingline Lender and the L/C Issuers agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit and Swingline Loans to be held on a pro rata basis by the Lenders in accordance with their Applicable Percentages (without giving effect to Section 2.15(a)(iv)), whereupon such Lender will cease to be a Defaulting Lender; provided, that, no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; provided, further, that, except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
(c)New Swingline Loans/Letters of Credit. So long as any Revolving Lender is a Defaulting Lender, (i) the Swingline Lender shall not be required to fund any Swingline Loans unless it is satisfied that it will have no Fronting Exposure after giving effect to such Swingline Loan, and (ii) the L/C Issuers shall not be required to issue, extend, increase, reinstate or renew any Letter of Credit unless it is satisfied that it will have no Fronting Exposure after giving effect thereto.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
(a)Defined Terms. For purposes of this Section 3.01, the term “applicable Law” includes FATCA and the term “Lender” includes each L/C Issuer.
(b)Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes. Any and all payments by or on account of any obligation of any Loan Party under any
Loan Document shall be made without deduction or withholding for any Taxes, except as required by applicable Laws. If any applicable Laws (as determined in the good faith discretion of an applicable Withholding Agent) require the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable Law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Loan Party shall be increased as necessary so that after any required withholding or the making of all required deductions (including deductions and withholdings applicable to additional sums payable under this Section 3.01) the applicable Recipient receives an amount equal to the sum it would have received had no such withholding or deduction been made.
(c)Payment of Other Taxes by the Loan Parties. The Loan Parties shall timely pay to the relevant Governmental Authority in accordance with applicable Law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.
(d)Tax Indemnifications.
(i)Each of the Loan Parties shall, and does hereby, jointly and severally indemnify each Recipient, and shall make payment in respect thereof within ten (10) days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 3.01) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient, and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.
(ii)Each Lender shall, and does hereby, severally indemnify and shall make payment in respect thereof within ten (10) days after demand therefor, (A) the Administrative Agent against any Indemnified Taxes attributable to such Lender (but only to the extent that any Loan Party has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so), (B) the Administrative Agent and the Loan Parties, as applicable, against any Taxes attributable to such Lender’s failure to comply with the provisions of Section 11.06(d) relating to the maintenance of a Participant Register, and (C) the Administrative Agent and the Loan Parties, as applicable, against any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent or a Loan Party in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this Section 3.01(d)(ii).
(e)Evidence of Payments. As soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority, as provided in this Section 3.01, the Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of any return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
(f)Status of Lenders; Tax Documentation.
(i)Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable Law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(f)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii)Without limiting the generality of the foregoing, in the event that the Borrower is a U.S. Person,
(A)any Lender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;
(B)any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable:
(1)in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed copies of IRS Form W-8BEN-E (or W-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty, and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN-E (or W-8BEN, as applicable) establishing an exemption from, or
reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(2)executed copies of IRS Form W-8ECI;
(3)in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit J-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”), and (y) executed copies of IRS Form W-8BEN-E (or W-8BEN, as applicable); or
(4)to the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN-E (or W-8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit J-2 or Exhibit J-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided, that, if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit J-4 on behalf of each such direct and indirect partner;
(C)any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies (or originals, as required) of any other form prescribed by applicable Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable Law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D)if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such
Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (f)(ii)(D), “FATCA” shall include any amendments made to FATCA after the Closing Date.
(iii)Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
(g)Treatment of Certain Refunds. Unless required by applicable Laws, at no time shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a Lender, or have any obligation to pay to any Lender, any refund of Taxes withheld or deducted from funds paid for the account of such Lender. If any Recipient determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified by any Loan Party or with respect to which any Loan Party has paid additional amounts pursuant to this Section 3.01, it shall pay to such Loan Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Loan Party under this Section 3.01 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) incurred by such Recipient, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided, that, each Loan Party, upon the request of the Recipient, agrees to repay the amount paid over to such Loan Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Recipient in the event the Recipient is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this Section 3.01(g), in no event will the applicable Recipient be required to pay any amount to such Loan Party pursuant to this Section 3.01(g) the payment of which would place the Recipient in a less favorable net after-Tax position than such Recipient would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This Section 3.01(g) shall not be construed to require any Recipient to make available its tax returns (or any other information relating to its Taxes that it deems confidential) to any Loan Party or any other Person.
(h)Survival. Each party’s obligations under this Section 3.01 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all other Obligations.
If any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its Lending Office to perform any of its obligations hereunder or to make, maintain or fund or charge interest with respect to any Credit Extension, or to determine or charge interest rates based upon SOFR or Term SOFR, then, on notice thereof by such Lender to the Borrower through the Administrative Agent, (a) any obligation of such Lender to perform such obligations, to issue, make, maintain, fund or charge interest with respect to any such Credit Extension or to continue Term SOFR Loans or to convert Base Rate Loans to Term SOFR Loans shall be suspended, and (b) if such notice asserts the illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to the Term SOFR component of the Base Rate, the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such
illegality, be determined by the Administrative Agent without reference to the Term SOFR component of the Base Rate, in each case until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (i) the Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all Term SOFR Loans of such Lender to Base Rate Loans (the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Term SOFR component of the Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Term SOFR Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Term SOFR Loans, and (ii) if such notice asserts the illegality of such Lender determining or charging interest rates based upon SOFR or Term SOFR, the Administrative Agent shall during the period of such suspension compute the Base Rate applicable to such Lender without reference to the Term SOFR component thereof until the Administrative Agent is advised in writing by such Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon SOFR or Term SOFR. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted, together with any additional amounts required pursuant to Section 3.05.
3.03Inability to Determine Rates.
(a)If in connection with any request for a Term SOFR Loan or a conversion to or continuation thereof, (i) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that (A) no Successor Rate has been determined in accordance with Section 3.03(b), and the circumstances under clause (i) of Section 3.03(b) or the Scheduled Unavailability Date has occurred, or (B) adequate and reasonable means do not otherwise exist for determining Term SOFR for any requested Interest Period with respect to a proposed Term SOFR Loan or in connection with an existing or proposed Base Rate Loan, or (ii) the Administrative Agent or the Required Lenders determine that for any reason that Term SOFR for any requested Interest Period with respect to a proposed Loan does not adequately and fairly reflect the cost to such Lenders of funding such Loan, the Administrative Agent will promptly so notify the Borrower and each Lender. Thereafter, (1) the obligation of the Lenders to make or maintain Term SOFR Loans, or to convert Base Rate Loans to Term SOFR Loans, shall be suspended (to the extent of the affected Term SOFR Loans or Interest Periods), and (2) in the event of a determination described in the preceding sentence with respect to the Term SOFR component of the Base Rate, the utilization of the Term SOFR component in determining the Base Rate shall be suspended, in each case until the Administrative Agent (or, in the case of a determination by the Required Lenders described in Section 3.03(a)(ii), until the Administrative Agent upon the instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, (x) the Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of Term SOFR Loans (to the extent of the affected Term SOFR Loans or Interest Periods) or, failing that, will be deemed to have converted such request into a request for a Borrowing of Base Rate Loans in the amount specified therein, and (y) any outstanding Term SOFR Loans shall be deemed to have been converted to Base Rate Loans immediately at the end of their respective applicable Interest Periods.
(b)Notwithstanding anything to the contrary in this Agreement or any other Loan Document, if the Administrative Agent determines (which determination shall be conclusive absent manifest error), or the Borrower or Required Lenders notify the Administrative Agent (with, in the case of the Required Lenders, a copy to the Borrower) that the Borrower or Required Lenders (as applicable) have determined, that:
(i)adequate and reasonable means do not exist for ascertaining one month, three month and six month interest periods of Term SOFR, including because the Term SOFR Screen Rate is not available or published on a current basis and such circumstances are unlikely to be temporary; or
(ii)CME or any successor administrator of the Term SOFR Screen Rate or a Governmental Authority having jurisdiction over the Administrative Agent or such administrator with respect to its publication of Term SOFR, in each case acting in such capacity, has made a public statement identifying a specific date after which one month, three month and six month interest periods of Term SOFR or the Term SOFR Screen Rate shall or will no longer be representative or made available, or permitted to be used for determining the interest rate of Dollar-denominated syndicated loans, or shall or will otherwise cease; provided, that, at the time of such statement, there is no successor administrator that is satisfactory to the Administrative Agent that will continue to provide such representative interest periods of Term SOFR after such specific date (the latest date on which one month, three month and six month interest periods of Term SOFR or the Term SOFR Screen Rate are no longer available permanently or indefinitely, the “Scheduled Unavailability Date”); or
then, on a date and time determined by the Administrative Agent (any such date, a “Term SOFR Replacement Date”), which date shall be at the end of an Interest Period or on the relevant Interest Payment Date, as applicable, for interest calculated and, solely with respect to clause (ii) above, no later than the Scheduled Unavailability Date, Term SOFR will be replaced hereunder and under any other Loan Document with Daily Simple SOFR, plus the SOFR Adjustment for any payment period for interest calculated that can be determined by the Administrative Agent, in each case, without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document (the “Successor Rate”). If the Successor Rate is Daily Simple SOFR, plus the SOFR Adjustment, all interest payments will be payable on a monthly basis.
Notwithstanding anything to the contrary herein, (a) if the Administrative Agent determines that Daily Simple SOFR is not available on or prior to the Term SOFR Replacement Date, or (b) if the events or circumstances of the type described in Section 3.03(b)(i) or (ii) have occurred with respect to the Successor Rate then in effect, then, in each case, the Administrative Agent and the Borrower may amend this Agreement solely for the purpose of replacing Term SOFR or any then-current Successor Rate in accordance with this Section 3.03(b) at the end of any Interest Period, relevant Interest Payment Date or payment period for interest calculated, as applicable, with an alternative benchmark rate giving due consideration to any evolving or then-existing convention for similar Dollar-denominated credit facilities syndicated and agented in the United States for such alternative benchmark and, in each case, including any mathematical or other adjustments to such benchmark giving due consideration to any evolving or then-existing convention for similar Dollar-denominated credit facilities syndicated and agented in the United States for such benchmark, which adjustment or method for calculating such adjustment shall be published on an information service as selected by the Administrative Agent from time to time in its reasonable discretion and may be periodically updated. For the avoidance of doubt, any such proposed rate and adjustments, shall constitute a “Successor Rate”. Any such amendment shall become effective at 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the Administrative Agent shall have posted such proposed amendment to all Lenders and the Borrower unless, prior to such time, Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders object to such amendment.
The Administrative Agent will promptly (in one or more notices) notify the Borrower and each Lender of the implementation of any Successor Rate. Any Successor Rate shall be applied in a manner consistent with market practice; provided, that, to the extent such market practice is not administratively feasible for the Administrative Agent, such Successor Rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent. Notwithstanding anything else herein, if at any time any Successor Rate as so determined would otherwise be less than zero, such Successor Rate will be deemed to be zero for the purposes of this Agreement and the other Loan Documents.
In connection with the implementation of a Successor Rate, the Administrative Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement; provided, that, with respect to any such amendment effected, the Administrative Agent shall post each such amendment implementing such Conforming Changes to the Borrower and the Lenders reasonably promptly after such amendment becomes effective.
For purposes of this Section 3.03(b), those Lenders that either have not made, or do not have an obligation under this Agreement to make, the relevant Loans in Dollars shall be excluded from any determination of Required Lenders.
(a)Increased Costs Generally. If any Change in Law shall:
(i)impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or any L/C Issuer;
(ii)subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes, and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii)impose on any Lender or any L/C Issuer any other condition, cost or expense affecting this Agreement or Term SOFR Loans made by such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such Lender of making, converting to, continuing or maintaining any Loan (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender or such L/C Issuer of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or such L/C Issuer hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or such L/C Issuer, the Borrower will pay to such Lender or such L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or such L/C Issuer, as the case may be, for such additional costs incurred or reduction suffered.
(b)Capital Requirements. If any Lender or any L/C Issuer determines that any Change in Law affecting such Lender or such L/C Issuer or any Lending Office of such Lender or such L/C Issuer or such Lender’s or such L/C Issuer’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or such L/C Issuer’s capital or on the capital of such Lender’s or such L/C Issuer’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of Credit or Swingline Loans held by, such Lender, or the Letters of Credit issued by such L/C Issuer, to a level below that which such Lender or such L/C Issuer or such Lender’s or such L/C Issuer’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or such L/C Issuer’s policies and the policies of such Lender’s or such L/C Issuer’s holding company with respect to capital adequacy and liquidity), then from time to time the Borrower will pay to such Lender or such L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or such L/C Issuer or such Lender’s or such L/C Issuer’s holding company for any such reduction suffered.
(c)Certificates for Reimbursement. A certificate of a Lender or an L/C Issuer setting forth in reasonable detail the amount or amounts necessary to compensate such Lender or such L/C Issuer or its holding company, as the case may be, as specified in Section 3.04(a) or Section 3.04(b) and delivered to the Borrower shall be conclusive absent manifest error. The Borrower shall pay such Lender or such L/C Issuer, as the case may be, the amount shown as due on any such certificate within ten (10) days after receipt thereof.
(d)[Reserved].
(e)Delay in Requests. Failure or delay on the part of any Lender or any L/C Issuer to demand compensation pursuant to the foregoing provisions of this Section 3.04 shall not constitute a waiver of such Lender’s or such L/C Issuer’s right to demand such compensation; provided, that, the Borrower shall not be required to compensate a Lender or an L/C Issuer pursuant to the foregoing provisions of this Section 3.04 for any increased costs incurred or reductions suffered more than nine (9) months prior to the date that such Lender or such L/C Issuer, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or such L/C Issuer’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine (9) month period referred to above shall be extended to include the period of retroactive effect thereof).
Upon demand of any Lender (with a copy to the Administrative Agent) from time to time, the Borrower shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of:
(a)any continuation, conversion, payment or prepayment of any Term SOFR Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise);
(b)any failure by the Borrower (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any Term SOFR Loan on the date or in the amount notified by the Borrower; or
(c)any assignment of a Term SOFR Loan on a day other than the last day of the Interest Period therefor as a result of a request by the Borrower pursuant to Section 11.13;
including any loss of anticipated profits and any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the deposits from which such funds were obtained. The Borrower shall also pay any customary administrative fees charged by such Lender in connection with the foregoing.
3.06Mitigation Obligations; Replacement of Lenders.
(a)Designation of a Different Lending Office. If any Lender requests compensation under Section 3.04, or requires the Borrower to pay any Indemnified Taxes or additional amounts to any Lender, any L/C Issuer, or any Governmental Authority for the account of any Lender or any L/C Issuer pursuant to Section 3.01, or if any Lender gives a notice pursuant to Section 3.02, then at the request of the Borrower, such Lender or such L/C Issuer shall, as applicable, use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender or such L/C Issuer, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.01 or Section 3.04, as the case may be, in the future, or eliminate the need for the notice pursuant to Section 3.02, as applicable, and (ii) in each case, would not subject such Lender or such L/C Issuer, as the case may be, to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender or such L/C Issuer, as the case may be. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender or any L/C Issuer in connection with any such designation or assignment.
(b)Replacement of Lenders. If any Lender requests compensation under Section 3.04, or if the Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01 and, in each case, such Lender has declined or is unable to designate a different lending office in accordance with Section 3.06(a), the Borrower may replace such Lender in accordance with Section 11.13.
All of the Borrower’s obligations under this Article III shall survive termination of the Aggregate Commitments, repayment of all other Obligations hereunder, resignation of the Administrative Agent and the Facility Termination Date.
ARTICLE IV
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01Conditions of Initial Credit Extension[Reserved].
The effectiveness of this Agreement and the obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder are subject to satisfaction (or waiver) of the following conditions precedent:
(a)Execution of Credit Agreement; Loan Documents. The Administrative Agent shall have received counterparts of this Agreement and each other Loan Document to be executed
and delivered on the Closing Date, in each case each executed (i) by a Responsible Officer of the signing Loan Party, and (ii) in the case of this Agreement, by each Lender.
(b)Organization Documents, Resolutions, Etc. The Administrative Agent shall have received the following: (i) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the jurisdiction of its organization and certified by a Responsible Officer of such Loan Party to be true and correct as of the Closing Date; (ii) such certificates of resolutions or other action, incumbency certificates, and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party; (iii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization.
(c)Legal Opinions of Counsel. The Administrative Agent shall have received an opinion or opinions of counsel for the Loan Parties, dated the Closing Date and addressed to the Administrative Agent, the L/C Issuers and the Lenders, in form and substance acceptable to the Administrative Agent.
(d)Financial Statements. The Administrative Agent and the Arrangers shall have received copies of (i)(A) the Audited Financial Statements, and (B) the audited annual Consolidated financial statements of the Borrower and its Subsidiaries for the fiscal years of the Borrower ended April 30, 2018 and April 30, 2019, including, for each such fiscal year of the Borrower, a balance sheet and statements of income, cash flows and stockholder’s equity (including, in each case, all footnotes to the foregoing, setting forth in comparative form the corresponding figures as of the end of, and for, the applicable preceding fiscal year of the Borrower), (ii) audited annual Consolidated financial statements of the Closing Date Acquisition Target and its Subsidiaries for the fiscal years of the Closing Date Acquisition Target ended December 31, 2018 and December 31, 2019, to include in each case a balance sheet and statements of income, cash flows and shareholders’ equity (including all footnotes to the foregoing, all in reasonable detail and setting forth in comparative form the corresponding figures as of the end of, and for, the applicable preceding fiscal year of the Closing Date Acquisition Target), (iii) unaudited Consolidated financial statements of the Borrower and its Subsidiaries for the fiscal quarters of the Borrower ended July 31, 2020 and October 31, 2020, to include in each case a balance sheet and statements of income and cash flows, all in reasonable detail and setting forth in comparative form the corresponding figures as of the end of, and for the corresponding period in, the applicable preceding fiscal year of the Borrower, (iv) unaudited Consolidated financial statements of the Closing Date Acquisition Target and its Subsidiaries for the fiscal quarters of the Closing Date Acquisition Target ended March 31, 2020, June 30, 2020 and September 30, 2020, to include in each case a balance sheet and statements of income and cash flows, all in reasonable detail and setting forth in comparative form the corresponding figures as of the end of, and for the corresponding period in, the applicable preceding fiscal year of the Closing Date Acquisition Target, and (v) pro forma financial statements of the Borrower and its Subsidiaries as of and for the twelve (12)-month period ended on October 31, 2020, to include a balance sheet and statements of income, cash flows and stockholders’ equity, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements) (the “Pro Forma Financial Statements”).
(e)No Company Material Adverse Effect. Since the date of the Closing Date Acquisition Agreement, there shall not have been a “Company Material Adverse Effect” (as defined in the Closing Date Acquisition Agreement (as in effect on January 11, 2021)).
(f)Personal Property Collateral; Insurance. The Administrative Agent shall have received:
(i)(A) searches of UCC filings in the jurisdiction of organization of each Loan Party and each jurisdiction where any Collateral is located or where a filing would need to be made in order to perfect the Administrative Agent’s security interest in the Collateral, copies of the financing statements on file in such jurisdictions and evidence that no Liens exist other than Permitted Liens, and (B) tax lien and judgment searches;
(ii)searches of ownership of registered and pending Intellectual Property in the United States Copyright Office and the United States Patent and Trademark Office and duly executed notices of grant of security interest in the form required by the Collateral Documents as are necessary to perfect the Administrative Agent’s security interest in such Intellectual Property;
(iii)completed UCC financing statements for each appropriate jurisdiction as is necessary to perfect the Administrative Agent’s security interest in the Collateral to the extent that a security interest in such Collateral may be perfected by the filing of a UCC financing statement;
(iv)to the extent required to be delivered pursuant to the terms of the Collateral Documents, stock, equity, share or membership certificates and endorsements of, or recordings of, or notations on, such certificates evidencing Equity Interests pledged pursuant to the terms of the Collateral Documents, together with, where applicable, undated stock or transfer powers duly executed in blank;
(v)to the extent required to be delivered pursuant to the terms of the Collateral Documents, all instruments, documents and chattel paper in the possession of any of the Loan Parties, together with allonges or assignments as may be necessary to perfect the Administrative Agent’s security interest in the Collateral; and
(vi)copies of insurance certificates and endorsements of insurance evidencing liability, casualty, property, terrorism and business interruption insurance meeting the requirements set forth herein or in the Collateral Documents;
provided, that, to the extent any security interest in any Collateral is not or cannot be provided and/or perfected on the Closing Date (other than (1) the granting of a security interest pursuant to the Collateral Documents, (2) the perfection of the security interest in assets with respect to which a Lien may be perfected by the filing of a UCC financing statement and/or the filing of short-form Intellectual Property notices with the United States Patent and Trademark Office or the United States Copyright Office, and (3) the perfection of the security interest in certificated Equity Interests of any Domestic Subsidiary (provided, that, with respect to any such certificates that are held by the Closing Date Acquisition Target or the Closing Date Acquisition Target’s existing lenders, such certificates shall only be required to be delivered on the Closing Date to the extent such certificates are received by the Borrower on or prior to the Closing Date after the Borrower’s use of commercially reasonable efforts to obtain such certificates)) after the Borrower’s use of commercially reasonable efforts to do so, then the grant, provision and/or
perfection of a security interest in such Collateral shall not constitute a condition precedent to the availability of the Credit Extensions to be made on the Closing Date, but instead shall be required to be delivered within thirty (30) days after the Closing Date (or such longer period of time as may be agreed by the Administrative Agent in its sole discretion) (the provisions of this proviso being referred to herein as the “Limited Conditionality Provision”).
(g)Solvency Certificate. The Administrative Agent shall have received a Solvency Certificate signed by the chief financial officer of the Borrower certifying that the Borrower and its Subsidiaries, on a Consolidated basis after giving effect to the Transactions, are Solvent.
(h)Officer’s Certificate. The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Sections 4.01(e), (i), (j), and (l) have been satisfied.
(i)Closing Date Acquisition. The Closing Date Acquisition Agreement shall be in full force and effect. The Closing Date Acquisition shall have been consummated, or substantially concurrently with the funding of the Term A Loans on the Closing Date shall be consummated, in all material respects in accordance with the terms of the Closing Date Acquisition Agreement, without giving effect to any modifications or amendments thereto (which, for the avoidance of doubt, shall include any Schedule Supplement (as defined in the Closing Date Acquisition Agreement (as in effect on January 11, 2021))) or consents or waivers thereto or thereunder by the Borrower or any of its Affiliates that are material and adverse to the Lenders (in their respective capacities as such) or the Arrangers (in their respective capacities as such) without the prior consent of the Arrangers (such consent not to be unreasonably withheld, delayed or conditioned); provided, that, it is understood and agreed that: (i) any reduction of the purchase price in connection with the Closing Date Acquisition shall not be deemed to be material and adverse to the interests of the Lenders and the Arrangers if such reduction of the purchase price shall be allocated to a reduction in the amount of the Term A Facility; (ii) any increase of the purchase price in connection with the Closing Date Acquisition shall not be deemed to be material and adverse to the interests of the Lenders and the Arrangers if such increase of the purchase price is (A) funded with cash on the balance sheet of the Borrower and/or is satisfied by increasing the amount of the Closing Date Equity Contribution, and (B) in an aggregate amount not in excess of $100,000,000; and (iii) any change to the definition of “Company Material Adverse Effect” shall be deemed material and adverse to the Lenders and the Arrangers.
(j)Representations and Warranties. The representations and warranties of the Borrower and each other Loan Party contained in this Agreement or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be made on the Closing Date; provided, that, it is understood and agreed that only the Specified Representations shall be true and correct in all material respects (or in all respects if already qualified by materiality) on and as of the Closing Date. The Specified Closing Date Acquisition Agreement Representations shall be true and correct in all material respects (or in all respects if already qualified by materiality) on and as of the Closing Date.
(k)Closing Date Refinancing. The Closing Date Refinancing shall have been, or substantially concurrently with the funding of the Term A Loans on the Closing Date shall be, consummated.
(l)Closing Date Equity Contribution. Prior to, or substantially concurrently with, the funding of the Term A Loans on the Closing Date, the Borrower shall have consummated the Closing Date Equity Contribution.
(m)Loan Notice. The Administrative Agent shall have received a Loan Notice with respect to the Term A Borrowing to be made on the Closing Date.
(n)Due Diligence; PATRIOT Act; Beneficial Ownership. At least five (5) Business Days prior to the Closing Date, (i) the Administrative Agent and each Lender shall have received all documentation and other information about the Loan Parties as has been reasonably requested by the Administrative Agent or such Lender at least ten (10) Business Days prior to the Closing Date that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, and (ii) if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered to the Administrative Agent and each Lender requesting the same at least ten (10) Business Days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower.
(o)Payment of Fees and Expenses. All fees required to be paid on the Closing Date, and all reasonable out-of-pocket expenses required to be paid on the Closing Date, in each case shall have been paid to the extent invoiced at least three (3) Business Days (or such shorter period of time as the Borrower may agree) prior to the Closing Date.
Without limiting the generality of the provisions of Section 9.03(c)(vi), for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender (or any of its Affiliates) unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
4.02Conditions to all Credit Extensions After the Closing Date.
The obligation of each Lender and each L/C Issuer to honor any Request for Credit Extension (other than (x) in connection with the Term A Borrowing on the Closing Date,, with respect to the conditions set forth in Sections 4.02(a), (b) and (yd), a Loan Notice requesting only a conversion of Loans to the other Type, or a continuation of Term SOFR Loans) is subject to the following conditions precedent:
(a)Representations and Warranties. The representations and warranties of the Borrower and each other Loan Party contained in this Agreement or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall (i) with respect to representations and warranties that contain a materiality qualification, be true and correct on and as of the date of such Credit Extension, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and (ii) with respect to representations and warranties that do not contain a materiality qualification, be true and correct in all material respects on and as of the date of such Credit Extension, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, and except that for purposes of this Section 4.02, the representations and warranties contained in Sections 5.05(a) and (b) shall be
deemed to refer to the most recent statements furnished pursuant to Sections 6.01(a) and (b), respectively.
(b)Default. No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(c)Request for Credit Extension. The Administrative Agent and, if applicable, the applicable L/C Issuer or the Swingline Lender, shall have received a Request for Credit Extension in accordance with the requirements hereof.
(d)Consolidated Leverage Ratio. The Consolidated Leverage Ratio, determined on a Pro Forma Basis after giving effect to the proposed Credit Extension and the application of the proceeds thereof, shall not exceed the Leverage Ratio Target.
Each Request for Credit Extension (other than (x) in connection with the Term A Borrowing on the Closing Date, with respect to the conditions set forth in Sections 4.02(a), (b) and (yd), a Loan Notice requesting only a conversion of Loans to the other Type, or a continuation of Term SOFR Loans) submitted by the Borrower shall be deemed to be a representation and warranty that the conditions specified in Sections 4.02(a) and, (b) and (d) have been satisfied on and as of the date of the applicable Credit Extension.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Each Loan Party represents and warrants to the Administrative Agent and the Lenders, as of the date made or deemed made, that:
5.01Existence, Qualification and Power.
Each Loan Party and each of its Subsidiaries (a) is duly organized or formed, validly existing and, as applicable and except for the Immaterial Subsidiary, in good standing under the Laws of the jurisdiction of its incorporation or organization, (b) has all requisite power and authority and all requisite 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 Loan Documents to which it is a party, and (c) is duly qualified and is licensed and, as applicable, 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.
5.02Authorization; No Contravention.
5.03Governmental Authorization; Other Consents.
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 (a) the execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement or any other Loan Document, (b) the grant by any Loan Party of the Liens granted by it pursuant to the Collateral Documents, (c) the perfection or maintenance of the Liens created under the Collateral Documents (including the first priority nature thereof), or (d) the exercise by the Administrative Agent or any Lender of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to the Collateral Documents, other than (i) authorizations, approvals, actions, notices and filings which have been duly obtained, and (ii) filings to perfect the Liens created by the Collateral Documents.
Each Loan Document has been duly executed and delivered by each Loan Party that is party thereto. Each Loan Document when so delivered constitutes a legal, valid and binding obligation of each Loan Party that is party thereto, enforceable against each such Loan Party in accordance with its terms, subject to (a) applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, and (b) solely with respect to the enforcement of any pledge of the Equity Interests in any Foreign Subsidiary or any pledge of intercompany Indebtedness owed by any Foreign Subsidiary, the effect of foreign Laws, rules and regulations as they relate to the enforcement of any such pledge.
5.05Financial Statements; No Material Adverse Effect.
(a)Audited Financial Statements. The Audited Financial Statements (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, (ii) fairly present, in all material respects, the financial condition of the Borrower and its Subsidiaries as of the date thereof and their results of operations, cash flows and changes in stockholder’s equity for the period covered thereby in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, and (iii) show all material indebtedness and other liabilities, direct or contingent, of the Borrower and its Subsidiaries as of the date thereof, including liabilities for taxes, material commitments and Indebtedness.
(b)Quarterly Financial Statements. The unaudited Consolidated balance sheet of the Borrower and its Subsidiaries dated as of October 31July 27, 20202024, and the related Consolidated statements of income and cash flows for the fiscal quarter of the Borrower ended October 31July 27, 20202024 (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, and (ii) fairly present the financial condition of the Borrower and its Subsidiaries as of the date thereof and their results of operations and cash flows for the period covered thereby, subject, in the case of clauses (i) and (ii), to the absence of footnotes and to normal year-end audit adjustments.
(c)Material Adverse Effect. Since April 30, 20202024, there has been no event or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect.
There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of the Loan Parties, threatened or contemplated, at law, in equity, in arbitration or before any Governmental Authority, by or against any Loan Party or any Subsidiary or against any of their properties or revenues that (a) purport to affect or pertain to this Agreement or any other Loan Document or any of the transactions contemplated hereby, or (b) either individually or in the aggregate could reasonably be expected to have a Material Adverse Effect.
Neither any Loan Party nor any Subsidiary is in default under or with respect to, or a party to, any Contractual Obligation that could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. No Default has occurred and is continuing or would result from the consummation of the Transactions or the other transactions contemplated by this Agreement or any other Loan Document.
Each Loan Party and each of its Subsidiaries has good record 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, except for such defects in title as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(a)Except as could not, individually or in the aggregate, reasonably be expected to result in any Material Adverse Effect:
(i)(A) None of the properties currently or formerly owned, leased or operated by any Loan Party or any of its Subsidiaries is listed or formally proposed for listing on the NPL or on the CERCLIS or any analogous foreign, state or local list or is adjacent to any such property; (B) there are no, and to the best knowledge of the Loan Parties and their Subsidiaries never have been any, underground or above-ground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on any property currently owned, leased or operated by any Loan Party or any of its Subsidiaries or, to the best of the knowledge of the Loan Parties, on any property formerly owned, leased or operated by any Loan Party or any of its Subsidiaries; (C) there is no and never has been any asbestos or asbestos-containing material on, at or in any property currently owned, leased or operated by any Loan Party or any of its Subsidiaries; (D) Hazardous Materials have not been released on, at, under or from any property currently or formerly owned, leased or operated by any Loan Party or any of its Subsidiaries or any property by or on behalf, or otherwise arising from the operations, of any Loan Party or any of its Subsidiaries; and (E) no Loan Party or any of its Subsidiaries has become subject to any Environmental Liability or knows of any facts or circumstances that could reasonably be expected to give rise to any Environmental Liability.
(ii)(A) Neither any Loan Party nor any of its Subsidiaries is undertaking, and has not completed, either individually or together with other potentially responsible parties, any investigation or assessment or remedial or response action relating to any actual or threatened Release of Hazardous Materials at, on, under, or from any site, location or operation, either voluntarily or pursuant to the order of any Governmental Authority or the requirements of any Environmental Law; and (B) all Hazardous Materials generated, used, treated, handled or stored at, or transported to or from, any property currently or formerly owned, leased or operated by any Loan Party or any of its Subsidiaries have been disposed of in a manner which could not reasonably expected to result in liability to any Loan Party or any of its Subsidiaries.
(iii)The Loan Parties and their respective Subsidiaries: (A) are, and within the period of all applicable statutes of limitation have been, in compliance with all applicable Environmental Laws; (B) hold all Environmental Permits (each of which is in full force and effect) required for any of their current or intended operations or for any property owned, leased, or otherwise operated by any of them; (C) are, and within the period of all applicable statutes of limitation have been, in compliance with all of their Environmental Permits; (D) to the extent within the control of the Loan Parties and their respective Subsidiaries, will timely renew and comply with each of their Environmental Permits and any additional Environmental Permits that may be required of any of them without material expense, and timely comply with any current, future or potential Environmental Law without material expense; and (E) are not aware of any requirements proposed for adoption or implementation under any Environmental Law.
The properties of the Borrower and its Subsidiaries are insured with financially sound and reputable insurance companies not Affiliates of the Borrower, in such amounts, with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where the applicable Loan Party or the applicable Subsidiary operates.
Each Loan Party and its Subsidiaries have filed all federal, state and other material tax returns and reports required to be filed, and have paid all federal, state and other material taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except those which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP. There is no proposed tax assessment against any Loan Party or any Subsidiary that would, if made, have a Material Adverse Effect, nor is there any tax sharing agreement applicable to the Borrower or any Subsidiary.
(a)Each Plan is in compliance in all material respects with the applicable provisions of ERISA, the Code and other federal or state laws. Each Pension Plan that is intended to be a qualified plan under Section 401(a) of the Code has received a favorable determination letter or is subject to a favorable opinion letter from the IRS to the effect that the form of such Plan is qualified under Section 401(a) of the Code and the trust related thereto has been determined by the IRS to be exempt from federal income tax under Section 501(a) of the Code, or an application
for such a letter is currently being processed by the IRS. To the knowledge of the Loan Parties, nothing has occurred that would prevent, or cause the loss of, such tax-qualified status.
(b)There are no pending or, to the best knowledge of the Loan Parties, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that could reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan that has resulted or could reasonably be expected to result in a Material Adverse Effect.
(c)(i) No ERISA Event has occurred, and no Loan Party nor any ERISA Affiliate is aware of any fact, event or circumstance that could reasonably be expected to constitute or result in an ERISA Event with respect to any Pension Plan or Multiemployer Plan; (ii) as of the most recent valuation date for any Pension Plan, the funding target attainment percentage (as defined in Section 430(d)(2) of the Code) is sixty percent (60%) or higher and no Loan Party nor any ERISA Affiliate knows of any facts or circumstances that could reasonably be expected to cause the funding target attainment percentage for any such plan to drop below sixty percent (60%) as of the most recent valuation date; (iii) no Loan Party nor any ERISA Affiliate has incurred any liability to the PBGC other than for the payment of premiums, and there are no premium payments which have become due that are unpaid; (iv) neither the Borrower nor any ERISA Affiliate has engaged in a transaction that could be subject to Section 4069 or Section 4212(c) of ERISA; and (v) no Pension Plan has been terminated by the plan administrator thereof nor by the PBGC, and no event or circumstance has occurred or exists that could reasonably be expected to cause the PBGC to institute proceedings under Title IV of ERISA to terminate any Pension Plan.
(d)As of the ClosingThird Amendment Effective Date, the Borrower is not and will not be using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise) of one or more Benefit Plans with respect to the Borrower’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments or this Agreement.
5.13Margin Regulations; Investment Company Act.
(a)Margin Regulations. Neither the Borrower nor any Subsidiary is engaged or will engage, principally or as one of its important activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U), or extending credit for the purpose of purchasing or carrying margin stock. Following the application of the proceeds of each Borrowing or drawing under each Letter of Credit, not more than twenty-five percent (25%) of the value of the assets (either of the Borrower only or of the Borrower and its Subsidiaries on a Consolidated basis) subject to the provisions of Section 7.01 or Section 7.05 or subject to any restriction contained in any agreement or instrument between the Borrower or any Subsidiary and any Lender or any Affiliate of any Lender relating to Indebtedness and within the scope of Section 8.01(e) will be margin stock.
(b)Investment Company Act. None of the Borrower, any Person Controlling the Borrower, or any Subsidiary is or is required to be registered as an “investment company” under the Investment Company Act of 1940.
The Borrower has disclosed to the Administrative Agent and the Lenders all agreements, instruments and corporate or other restrictions to which it or any of its Subsidiaries or any other Loan Party is subject, and all other matters known to it, that, individually or in the aggregate, could reasonably
be expected to result in a Material Adverse Effect. No report, financial statement, certificate or other written information (other than projected financial information and information of a general economic or industry-specific nature) furnished by or on behalf of any Loan Party to the Administrative Agent or any Lender in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder or under any other Loan Document (in each case as modified or supplemented by other information so furnished), when taken as a whole, contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not materially misleading. All projected financial information furnished by or on behalf of any Loan Party to the Administrative Agent or any Lender in connection with the transactions contemplated hereby and the negotiation of this Agreement, or delivered hereunder or under any other Loan Document, has been prepared in good faith based upon assumptions believed to be reasonable at the time such information was furnished. As of the ClosingThird Amendment Effective Date, the information included in any Beneficial Ownership Certification delivered to the Administrative Agent or any Lender, if applicable, is true and correct in all respects.
Each Loan Party and each Subsidiary is in compliance with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its properties, except in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted, or (b) the failure to comply therewith, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
The Borrower and its Subsidiaries, on a Consolidated basis, are Solvent.
5.17Sanctions Concerns and Anti-Corruption Laws.
(a)Sanctions Concerns. No Loan Party, nor any Subsidiary, nor, to the knowledge of the Loan Parties and their Subsidiaries, any director, officer, employee, agent, affiliate or representative thereof, is an individual or entity that is, or is owned or controlled by one or more individuals or entities that is (i) currently the subject or target of any Sanctions, (ii) included on OFAC’s List of Specially Designated Nationals, or HMT’s Consolidated List of Financial Sanctions Targets, or any similar list enforced by any other relevant sanctions authority, or (iii) located, organized or resident in a Designated Jurisdiction. The Borrower and its Subsidiaries have conducted their businesses in compliance with all applicable Sanctions and have instituted and maintained policies and procedures designed to promote and achieve compliance with such Sanctions.
(b)Anti-Corruption Laws. The Loan Parties and their Subsidiaries, and their respective directors, officers, employees and agents are in compliance with and, as applicable, have conducted their business in compliance in all material respects with the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010 and other applicable anti-corruption legislation in other jurisdictions, and have instituted and maintained policies and procedures designed to promote and achieve compliance with such laws.
5.18Subsidiaries; Equity Interests; Loan Parties.
(a)Subsidiaries, Joint Ventures, Partnerships and Equity Investments. Set forth on Schedule 5.18(a) is a complete and accurate list as of the ClosingThird Amendment Effective
Date of: (i) all Subsidiaries, joint ventures and partnerships and other equity investments of the Loan Parties; (ii) the number of shares of each class of Equity Interests in each Subsidiary outstanding; (iii) the number and percentage of outstanding shares of each class of Equity Interests owned by the Loan Parties and their Subsidiaries; and (iv) the class or nature of such Equity Interests (i.e. voting, non-voting, preferred, etc.). The outstanding Equity Interests in all Subsidiaries are validly issued, fully paid and non-assessable and are owned free and clear of all Liens. There are no outstanding subscriptions, options, warrants, calls, rights or other agreements or commitments (other than stock options granted to employees or directors and directors’ qualifying shares) of any nature relating to the Equity Interests of any Loan Party or any Subsidiary, except as contemplated in connection with the Loan Documents or as set forth on Schedule 5.18(a).
(b)Loan Parties. Set forth on Schedule 5.18(b) is a complete and accurate list as of the ClosingThird Amendment Effective Date of each Loan Party’s: (i) exact legal name; (ii) any former legal names in the four (4) months prior to the ClosingThird Amendment Effective Date, if any; (iii) jurisdiction of its incorporation or organization, as applicable; (iv) address of its chief executive office (and address of its principal place of business if different than its chief executive office address); (v) U.S. federal taxpayer identification number; and (vi) organization identification number, if any.
5.19Collateral Representations.
(a)Collateral Documents. The provisions of the Collateral Documents are (and upon delivery of Collateral to the Administrative Agent and/or when appropriate filings or other actions required by the applicable Collateral Documents or by applicable law have been filed or taken, will be) effective to create in favor of the Administrative Agent, for the benefit of the Secured Parties, a legal, valid and enforceable first priority Lien (subject to Permitted Liens) on all right, title and interest of the respective Loan Parties in the Collateral described therein. Except for filings and other actions completed prior to the ClosingThird Amendment Effective Date and as contemplated hereby and by the Collateral Documents, no filing or other action will be necessary to perfect such Liens.
(b)Intellectual Property. Set forth on Schedule 5.19(b), as of the ClosingThird Amendment Effective Date, is a list of all Intellectual Property registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office (other than Intellectual Property that is expired, abandoned, or lapsed) and owned by each Loan Party as of the ClosingThird Amendment Effective Date. Except for such claims and infringements that would not reasonably be expected to have a Material Adverse Effect, no claim has been asserted and is pending by any Person challenging or questioning the use of any Intellectual Property or the validity or effectiveness of any Intellectual Property, nor does any Loan Party know of any such claim, and the use of any Intellectual Property by any Loan Party or any of its Subsidiaries or the granting of a right or a license in respect of any Intellectual Property from any Loan Party or any of its Subsidiaries does not, to the best of any Loan Party’s knowledge, infringe on the rights of any Person. As of the ClosingThird Amendment Effective Date, none of the Intellectual Property owned by any of the Loan Parties or any of their Subsidiaries is subject to any licensing agreement or similar arrangement (other than non-exclusive outbound licenses entered into in the ordinary course of business) except as set forth on Schedule 5.19(b).
(c)Deposit Accounts and Securities Accounts. Set forth on Schedule 5.19(c), as of the ClosingThird Amendment Effective Date, is a description of all deposit accounts and all securities accounts of the Loan Parties, including the name of (i) the applicable Loan Party, (ii) in
the case of a deposit account, the depository institution and balance (as of January 31, 2021a recent date prior to the Third Amendment Effective Date) held in such deposit account and whether such account is an Excluded Account, and (iii) in the case of a securities account, the securities intermediary or issuer and the market value (as of January 31, 2021a recent date prior to the Third Amendment Effective Date) held in such securities account, as applicable.
(d)Properties. Set forth on Schedule 5.19(d), as of the ClosingThird Amendment Effective Date, is a list of all real property located in the United States that is owned or leased by any Loan Party (in each case, including (i) the name of the Loan Party owning (or leasing) such property, (ii) the property address, and (iii) the city, county, state and zip code which such property is located).
5.20Affected Financial Institutions.
No Loan Party is an Affected Financial Institution.
No Loan Party is a Covered Entity.
ARTICLE VI
AFFIRMATIVE COVENANTS
Each of the Loan Parties hereby covenants and agrees that on the Closing Date and thereafter until the Facility Termination Date:
The Borrower shall deliver to the Administrative Agent (for further distribution to each Lender), in form and detail satisfactory to the Administrative Agent:
(a)Audited Financial Statements. As soon as available, but in any event within ninety (90) days after the end of each fiscal year of the Borrower (or, if earlier, fifteen (15) days after the date required to be filed with the SEC (without giving effect to any extension permitted by the SEC)), commencing with the fiscal year ending April 3130, 20212025, a Consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal year, and the related Consolidated statements of income, changes in stockholders’ equity and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, audited and accompanied by a report and opinion of an independent certified public accountant of nationally recognized standing reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit.
(b)Quarterly Financial Statements. As soon as available, but in any event within forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Borrower (or, if earlier, five (5) days after the date required to be filed with the SEC, (without giving effect to any extension permitted by the SEC)), commencing with the fiscal quarter of the Borrower ending July 31October 26, 20212024, a Consolidated balance sheet of the Borrower
and its Subsidiaries as at the end of such fiscal quarter, and the related Consolidated statements of income or operations and cash flows for such fiscal quarter and for the portion of the Borrower’s fiscal year then ended, setting forth in each case in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, certified by the chief executive officer, chief financial officer, treasurer or controller who is a Responsible Officer of the Borrower as fairly presenting the financial condition, results of operations and cash flows of the Borrower and its Subsidiaries, subject only to normal year-end audit adjustments and the absence of footnotes.
(c)Budget and Projections. As soon as available, but in any event no later than ninety (90) days after the beginning of each fiscal year of the Borrower, projections and a budget for the Borrower and its Subsidiaries on a Consolidated basis (including a balance sheet and related statements of income and cash flows), on a quarterly basis for such fiscal year.
As to any information contained in materials furnished pursuant to Section 6.02(c), the Borrower shall not be separately required to furnish such information under Section 6.01(a) or (b), but the foregoing shall not be in derogation of the obligation of the Borrower to furnish the information and materials described in Sections 6.01(a) and (b) at the times specified therein.
6.02Certificates; Other Information.
Each Loan Party shall, and shall cause each of its Subsidiaries to, deliver to the Administrative Agent (for further distribution to each Lender), in form and detail satisfactory to the Administrative Agent:
(a)Compliance Certificate. Concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), (i) a duly completed Compliance Certificate signed by the chief executive officer, chief financial officer, treasurer or controller which is a Responsible Officer of the Borrower, including (A) a certification that no Default has occurred and is continuing (or, if a Default has occurred and is continuing, describing the nature and status of each such Default and actions that have been taken or are proposed to be taken to cure such Default), (B)(1) a certification of compliance with the financial covenants set forth in Section 7.11, including financial covenant calculations for the period covered by the Compliance Certificate and, (2) a calculation of the Available Amount as of the date of such Compliance Certificate, (3) a calculation of the Consolidated Leverage Ratio as of the end of any Measurement Period ending as of the end of the period covered by the financial statements delivered in connection with such Compliance Certificate, and (4) a certification (x) that any Supply Chain Financing consummated during the period covered by such Compliance Certificate was a Permitted Supply Chain Financing, and (y) of the outstanding amount of all accounts receivable sold or purported to be sold in connection with all Permitted Supply Chain Financings which accounts receivable remain uncollected and un-repurchased as of the last day of the period covered by such certification, (C) a listing of (1) all applications with the United States Patent and Trademark Office or the United States Copyright Office by any Loan Party, if any, for any Intellectual Property made since the date of the most recent prior Compliance Certificate (or, in the case of the first Compliance Certificate delivered after the Closing Date pursuant to this Section 6.02(a), the Closing Date), (2) all issuances of registrations or letters on existing applications with the United States Patent and Trademark Office or the United States Copyright Office by any Loan Party, if any, for any Intellectual Property received since the date of the most recent prior Compliance Certificate (or, in the case of the first Compliance Certificate delivered after the Closing Date pursuant to this Section 6.02(a), the Closing Date), and (3) all licenses
relating to any Intellectual Property registered with the United States Patent and Trademark Office or the United States Copyright Office entered into by any Loan Party since the date of the most recent prior Compliance Certificate (or, in the case of the first Compliance Certificate delivered after the Closing Date pursuant to this Section 6.02(a), the Closing Date), and (D) concurrently with the delivery of the financial statements referred to in Section 6.01(a), updated evidence of insurance for any insurance coverage of any Loan Party that was renewed, replaced or modified during the period covered by such Compliance Certificate, and (ii) a copy of management’s discussion and analysis with respect to such financial statements. Unless the Administrative Agent or a Lender requests executed originals, delivery of the Compliance Certificate may be by electronic communication including fax or email and shall be deemed to be an original and authentic counterpart thereof for all purposes.
(b)Audit Reports; Management Letters; Recommendations. Promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party by independent accountants in connection with the accounts or books of any Loan Party or any of its Subsidiaries, or any audit of any of them.
(c)Annual Reports; Etc. Promptly after the same are sent or filed, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of any Loan Party, and copies of all annual, regular, periodic and special reports and registration statements which any Loan Party may file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, or with any national securities exchange, and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto.
(d)Debt Securities Statements and Reports. Promptly after the furnishing thereof, copies of any statement or report furnished to any holder of debt securities of any Loan Party or of any of its Subsidiaries pursuant to the terms of any indenture, loan or credit or similar agreement governing Indebtedness with in an aggregate principal amount in excess of the Threshold Amount and not otherwise required to be furnished to the Lenders pursuant to Section 6.01 or any other clause of this Section 6.02.
(e)SEC Notices. Promptly, and in any event within five (5) Business Days after receipt thereof by any Loan Party or any Subsidiary, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of any Loan Party or any Subsidiary.
(f)Anti-Money-Laundering; Beneficial Ownership Regulation. Promptly following any request therefor, information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money-laundering rules and regulations, including the PATRIOT Act.
(g)Beneficial Ownership. To the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, an updated Beneficial Ownership Certification promptly following any change in the information provided in any Beneficial Ownership Certification delivered to the Administrative Agent or any Lender in relation to the Borrower that would result in a change to the list of beneficial owners identified in such certification.
(h)Additional Information. Promptly, such additional information regarding the business, financial, legal or corporate affairs of any Loan Party or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request.
Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(c) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (a) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the website address listed on Schedule 1.01(a), or (b) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided, that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its reasonable request to the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender, and (ii) the Borrower shall notify the Administrative Agent and each Lender (by e-mail transmission) of the posting of any such documents and, to the extent reasonably requested by the Administrative Agent, provide to the Administrative Agent by e-mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent 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 Borrower with any such request by a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.
The Borrower hereby acknowledges that (a) the Administrative Agent and/or an Affiliate thereof may, but shall not be obligated to, make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, Syndtrak, ClearPar or a substantially similar electronic transmission system (the “Platform”), and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. The Borrower hereby agrees that it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (i) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof, (ii) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, any Affiliate thereof, each Arranger, each L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States federal and state securities laws (provided, that, to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 11.07), (iii) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information,” and (iv) the Administrative Agent and any Affiliate thereof and each Arranger shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.” Notwithstanding the foregoing, the Borrower shall be under no obligation to mark any Borrower Materials “PUBLIC”.
Each Loan Party shall, and shall cause each of its Subsidiaries to, promptly, but in any event within two (2) Business Days, notify the Administrative Agent (and, upon receipt of any such notice, the Administrative Agent shall notify each Lender) of:
(a)the occurrence of any Default;
(b)any matter that has resulted or could reasonably be expected to result in a Material Adverse Effect;
(c)the occurrence of any ERISA Event;
(d)any material change in accounting policies or financial reporting practices by any Loan Party or any Subsidiary, including any determination by the Borrower referred to in Section 2.10(b); or
(e)any (i) occurrence of any Disposition or Involuntary Disposition for which a mandatory prepayment is required pursuant to Section 2.05(b)(i), or (ii) Debt Issuance for which a mandatory prepayment is required pursuant to Section 2.05(b)(ii).[reserved].
Each notice pursuant to this Section 6.03 shall be accompanied by a statement of a Responsible Officer of the Borrower setting forth details of the occurrence referred to therein and to the extent applicable, stating what action the Borrower has taken and proposes to take with respect thereto. Each notice pursuant to Section 6.03(a) shall describe with particularity any and all provisions of this Agreement and any other Loan Document that have been breached.
Each Loan Party shall, and shall cause each of its Subsidiaries to, pay and discharge as the same shall become due and payable, all its obligations and liabilities, including (a) all 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 Borrower or such Subsidiary, (b) all lawful claims which, if unpaid, would by law become a Lien upon its property (other than Permitted Liens), and (c) all Indebtedness, as and when due and payable, but subject to any subordination provisions contained in any instrument or agreement evidencing such Indebtedness; except, in any case, to the extent the failure to pay or discharge the same could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
6.05Preservation of Existence, Etc.
(a)Each Loan Party shall, and shall cause each of its Subsidiaries to, preserve, renew and maintain in full force and effect its legal existence and, except with respect to the Immaterial Subsidiary, good standing under the Laws of the jurisdiction of its organization, except in a transaction permitted by Section 7.04 or 7.05.
(b)Each Loan Party shall, and shall cause each of its Subsidiaries to, take all reasonable action to maintain all rights, privileges, permits, licenses and franchises necessary or desirable in the normal conduct of its business, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
(c)Each Loan Party shall, and shall cause each of its Subsidiaries to, preserve or renew all of its registered Intellectual Property, the non-preservation of which could reasonably be expected to have a Material Adverse Effect.
6.06Maintenance of Properties.
Each Loan Party shall, and shall cause each of its Subsidiaries to, (a) maintain, preserve and protect all of its material properties and equipment necessary in the operation of its business in good working order and condition, ordinary wear and tear excepted; (b) make all necessary repairs thereto and renewals and replacements thereof except where the failure to do so could not reasonably be expected to have a Material Adverse Effect; and (c) use the standard of care typical in the industry in the operation and maintenance of its facilities.
(a)Maintenance of Insurance. Each Loan Party shall, and shall cause each of its Subsidiaries to, maintain with financially sound and reputable insurance companies not Affiliates of the Borrower, insurance with respect to its properties and business against loss or damage of the kinds customarily insured against by Persons engaged in the same or similar business, of such types and in such amounts as are customarily carried under similar circumstances by such other Persons.
(b)Evidence of Insurance. Each Loan Party shall, and shall cause each of its Subsidiaries to, (i) cause the Administrative Agent to be named as lenders’ loss payable and/or additional insured with respect of any insurance providing liability coverage or coverage in respect of any Collateral, and use commercially reasonable efforts to cause, unless otherwise agreed to by the Administrative Agent, each provider of any such insurance to agree, by endorsement upon the policy or policies issued by it or by independent instruments furnished to the Administrative Agent that it will give the Administrative Agent thirty (30) days prior written notice before any such policy or policies shall lapse, terminate or be cancelled (or ten (10) days prior notice in the case of cancellation due to the nonpayment of premiums), and (ii) annually, upon expiration of current insurance coverage, provide, or cause to be provided, to the Administrative Agent, such evidence of insurance as required by the Administrative Agent, including, but not limited to, (A) evidence of such insurance policies (including, as applicable, ACORD Form 28 certificates (or similar form of insurance certificate) and ACORD Form 25 certificates (or similar form of insurance certificate)), and (B) endorsements naming the Administrative Agent as lenders’ loss payable and/or additional insured with respect of any such insurance.
Each Loan Party shall, and shall cause each of its Subsidiaries to, comply with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its business or property, except in such instances in which (a) such requirement of Law or 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 have a Material Adverse Effect.
Each Loan Party shall, and shall cause each of its Subsidiaries to, (a) maintain proper books of record and account, in which full, true and correct (in all material respects) entries in conformity with
GAAP consistently applied shall be made of all financial transactions and matters involving the assets and business of such Loan Party or such Subsidiary, as the case may be; and (b) maintain such books of record and account in material conformity with all applicable requirements of any Governmental Authority having regulatory jurisdiction over such Loan Party or such Subsidiary, as the case may be.
Each Loan Party shall, and shall cause each of its Subsidiaries to, permit representatives and independent contractors of the Administrative Agent and each Lender 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 (provided, that, one or more representatives of the Borrower shall be invited (with reasonable advanced notice) to attend any such meetings with such independent public accountants), all at the expense of the Borrower and at such reasonable times during normal business hours and no more than once per calendar year, upon reasonable advance notice to the Borrower; provided, that, when an Event of Default exists, the Administrative Agent or any Lender (or any of their respective representatives or independent contractors) may do any of the foregoing at the expense of the Borrower at any time, and as often as may be desired, during normal business hours and without advance notice; provided, further, that, notwithstanding anything to the contrary herein, neither the Borrower nor any of its Subsidiaries shall be required to disclose, permit the inspection, examination or making of copies of or taking abstracts from, or discuss any document, information or other matter (a) that constitutes non-financial trade secrets or non-financial proprietary information of the Borrower and its Subsidiaries (and/or any such information of any of their respective customers and/or suppliers), (b) in respect of which disclosure to the Administrative Agent or any Lender (or any of their respective representatives or agents) is prohibited by applicable Law, (c) that is subject to attorney-client or similar privilege or constitutes attorney work product, or (d) in respect of which the Borrower or such Subsidiary owes confidentiality obligations (to the extent not created in contemplation of the Borrower’s or such Subsidiary’s obligations under this Section 6.10) to any third party.
Each Loan Party shall, and shall cause each of its Subsidiaries to, use the proceeds of (a) the Term A Loans on the Closing Date to pay the Closing Date Acquisition Costs, (b) the Revolving Facility (including Letters of Credit and Swingline Loans) from time to time after the Closing Date to finance working capital and for other general corporate purposes (provided, that, the foregoing provisions of this clause (b) shall not restrict the deemed issuance of the Existing Letters of Credit on the Closing Date, to the extent such Existing Letters of Credit otherwise comply with this Section 6.11it being understood and agreed that, on the Third Amendment Effective Date, proceeds of the Revolving Facility may be used to refinance all amounts outstanding with respect to the term A facility existing under this Agreement immediately prior to the Third Amendment Effective Date), and (cb) any Incremental Term Facility for the purposes set forth in the Incremental Term Facility Agreement entered into in connection with the establishment of such Incremental Term Facility; provided, that, in no event shall the proceeds of any Credit Extension be used in contravention of any Law or of any Loan Document.
6.12Covenant to Guarantee Obligations.
Each Loan Party shall, and shall cause each of its Subsidiaries to, within forty-five (45) days (or, with respect to any Domestic Subsidiary that is a Telerob Immaterial Subsidiary, one hundred twenty (120) days) (or, in each case, such longer period of time as is agreed to by the Administrative Agent in its sole discretion) after the acquisition or formation of any Subsidiary, cause any such Subsidiary that is a Domestic Subsidiary (other than an SPE) to become a Guarantor hereunder by way of execution of a
Joinder Agreement in form and substance satisfactory to the Administrative Agent and, in connection with the foregoing, deliver to the Administrative Agent, with respect to each new Guarantor, substantially the same documentation required pursuant to Sections 4.012(b), (e), (f), and (nm) of the Third Amendment, Section 6.13, and, to the extent requested by the Administrative Agent, opinions of counsel to such Person, and such other deliveries reasonably deemed necessary in connection therewith, all in form, content and scope reasonably satisfactory to the Administrative Agent.
6.13Covenant to Give Security.
Each Loan Party shall:
(a)Equity Interests. Cause (i) one hundred percent (100%) of the issued and outstanding Equity Interests directly owned by such Loan Party in each of its Domestic Subsidiaries, and (ii) sixty-five percent (65%) of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and one hundred percent (100%) of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)), in each case, directly owned by such Loan Party in each of its Foreign Subsidiaries, in each case, to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent, for the benefit of the Secured Parties to secure the Secured Obligations, pursuant to the terms and conditions of the Collateral Documents, together with, to the extent requested by the Administrative Agent, opinions of counsel and any filings and deliveries necessary in connection therewith to perfect the security interests therein, all in form and substance satisfactory to the Administrative Agent.
(b)Other Property. Cause all property of such Loan Party (other than Excluded Property of such Loan Party) to be subject at all times to first priority (subject only to Permitted Liens), perfected Liens in favor of the Administrative Agent, for the benefit of the Secured Parties, to secure the Secured Obligations pursuant to the Collateral Documents or, with respect to any such property acquired subsequent to the Closing Date, such other additional security documents as the Administrative Agent shall reasonably request and, in connection with the foregoing, deliver to the Administrative Agent such other documentation as the Administrative Agent may reasonably request including filings and deliveries necessary to perfect such Liens, Organization Documents, resolutions, and, to the extent requested by the Administrative Agent, favorable opinions of counsel, all in form, content and scope reasonably satisfactory to the Administrative Agent.
(c)Qualifying Control Agreements. To the extent requested by the Administrative Agent with respect to any deposit account or any securities account of such Loan Party, cause such deposit account (other than (i) any deposit account maintained with the Administrative Agent or any Lender, and (ii) any Excluded Account) or such securities account at all times to be subject to a Qualifying Control Agreement (it being understood and agreed that the Loan Parties shall have forty-five (45) days following any such request (or such longer period of time as is agreed by the Administrative Agent in its sole discretion) to provide any such Qualifying Control Agreement).
(d)Assignment of Claims Act. Promptly, upon request by the Administrative Agent, comply with any and all of the requirements of the Assignment of Claims Act (Title 31 Section 3727 and Title 41 Section 15 of the United States Code), and FAR Subpart 32.8 (including FAR 52.232-23) (and comparable Laws of any state) where such statutes and regulations are applicable to any government contracts of any Loan Party, and take all such other action as may be necessary to make the direct assignment to the Administrative Agent of the payments due or to
become due under such government contracts, and such further action as may be necessary to facilitate the creation and perfection of the Administrative Agent’s security interest in such payments; provided, that, no Loan Party shall be required to take any such action with respect to any government contract with (i) less than $5,000,000 in remaining value, or (ii) less than six (6) months in remaining duration.
Notwithstanding any provision in any Loan Document to the contrary, in no event shall any Loan Party be required to (x) enter into any Collateral Document governed by the laws of any jurisdiction other than the United States, any state thereof or the District of Columbia, or (y) take any steps to perfect a security interest created over any Collateral located outside of the United States.
Each Loan Party shall, and shall cause each of its Subsidiaries to, promptly upon request by the Administrative Agent, or any Lender through the Administrative Agent, (a) correct any material defect or error that may be discovered in any Loan Document or in the execution, acknowledgment, filing or recordation thereof, and (b) do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts, deeds, certificates, assurances and other instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably require from time to time in order to (i) carry out more effectively the purposes of the Loan Documents, (ii) subject any Loan Party’s properties, assets, rights or interests to the Liens now or hereafter intended to be covered by any of the Collateral Documents, (iii) perfect and maintain the validity, effectiveness and priority of any of the Collateral Documents and any of the Liens intended to be created thereunder, and (iv) assure, convey, grant, assign, transfer, preserve, protect and confirm more effectively unto the Secured Parties the rights granted or now or hereafter intended to be granted to the Secured Parties under any Loan Document or under any other instrument executed in connection with any Loan Document to which any Loan Party is or is to be a party.
6.15Anti-Corruption Laws; Sanctions.
Each Loan Party shall, and shall cause each of its Subsidiaries to, (a) conduct its business in compliance in all material respects with (i) the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010 and other similar anti-corruption legislation in other jurisdictions, and (ii) all applicable Sanctions, and (b) maintain policies and procedures designed to promote and achieve compliance with (i) the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010 and other similar anti-corruption legislation in other jurisdictions, and (ii) all applicable Sanctions.
Each of the Loan Parties hereby covenants and agrees that on the Closing Date and thereafter until the Facility Termination Date, no Loan Party shall, 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, except for the following (the “Permitted Liens”):
(a)Liens pursuant to any Loan Document;
(b)(i) Liens existing on the ClosingThird Amendment Effective Date and listed on Schedule 7.01; and (ii) any extension, renewal or replacement thereof; provided, that, (A) the property covered thereby is not changed, (B) the amount secured or benefited thereby is not increased, (C) the direct or any contingent obligor with respect thereto is not changed, and (D) any extension, renewal or replacement of the obligations secured or benefited thereby is a Permitted Refinancing permitted by Section 7.02(b);
(c)Liens securing Indebtedness permitted under Section 7.02(c); provided, that: (i) such Liens do not at any time encumber any property other than the property financed by such Indebtedness together with any accessions thereto and proceeds thereof, and (ii) such Liens attach to such property concurrently with or within one hundred twenty (120) days after the acquisition thereof;
(d)Liens for taxes not yet due and payable or which are being contested in good faith by appropriate proceedings diligently pursued; provided, that, (i) any proceedings commenced for the enforcement of such Liens shall have been stayed or suspended within thirty (30) days of the commencement thereof, and (ii) provision for the payment of all such taxes has been made on the books of such Person to the extent required by GAAP;
(e)mechanic’s, processor’s, materialman’s, carrier’s, warehousemen’s, landlord’s and similar Liens (including statutory and common law landlord’s Liens under leases to which any Loan Party or any Subsidiary is a party) arising by operation of Law and arising in the ordinary course of business and securing obligations of such Person that are not overdue for a period of more than ninety (90) days or are being contested in good faith by appropriate proceedings diligently pursued; provided, that, (i) any proceedings commenced for the enforcement of such Liens shall have been stayed or suspended within thirty (30) days of the commencement thereof, and (ii) provision for the payment of such Liens has been made on the books of such Person to the extent required by GAAP;
(f)Liens arising in connection with worker’s compensation, unemployment insurance, old age pensions and social security benefits (other than Liens imposed by ERISA) which are not overdue or are being contested in good faith by appropriate proceedings diligently pursued; provided, that, (i) any proceedings commenced for the enforcement of such Liens shall have been stayed or suspended within thirty (30) days of the commencement thereof, and (ii) provision for the payment of such Liens has been made on the books of such Person to the extent required by GAAP;
(g)Liens (i) incurred or deposits made in the ordinary course of business to secure the performance of bids, tenders, statutory obligations, fee and expense arrangements with trustees and fiscal agents (exclusive of obligations incurred in connection with the borrowing of money or the payment of the deferred purchase price of property) and customary deposits granted in the ordinary course of business under operating leases, and (ii) incurred or deposits made securing the performance of surety, indemnity, performance, appeal and release bonds incurred in the ordinary course of business; provided, that, in each case, full provision for the payment of all such obligations has been made on the books of such Person to the extent required by GAAP;
(h)Permitted Real Property Encumbrances;
(i)attachment, judgment or other similar Liens arising in connection with court or arbitration proceedings to the extent not constituting an Event of Default; provided, that, the same are discharged, or that execution or enforcement thereof is stayed pending appeal, within thirty
(30) days or, in the case of any stay of execution or enforcement pending appeal, within such lesser time during which such appeal may be taken;
(j)leases or subleases granted to others not interfering in any material respect with the business of the Borrower or any of its Subsidiaries and any interest or title of a lessor under any lease permitted by the Loan Documents;
(k)customary rights of set off, revocation, refund or chargeback under deposit agreements or under the UCC of banks or other financial institutions where the Borrower or any of its Subsidiaries maintains deposits in the ordinary course of business permitted by the Loan Documents;
(l)landlord’s Liens created pursuant to any lease entered into by the Borrower or any of its Subsidiaries with a landlord in the ordinary course of business; provided, that, such Liens (i) only encumber assets at the applicable leased property (and do not otherwise encumber other assets of the Borrower and its Subsidiaries), and (ii) are granted solely to secure obligations arising under such lease that are owing by the Borrower or such Subsidiary to the landlord under such lease (and do not, in any event, secure any Indebtedness);
(m)Liens securing (i) the financing of insurance premiums or other financial assurances associated with workers compensation insurance coverage, and (ii) the financing of insurance premiums or other financial assurances associated with other insurance coverage or other financial assurance requirements obtained in the normal course of business; provided, that, the aggregate amount of obligations secured by such Liens, when taken together with the aggregate amount of Indebtedness incurred in reliance on Section 7.02(n), shall not exceed $20,000,000 at any time outstanding;
(n)Liens securing Indebtedness permitted pursuant to Section 7.02(d); provided, that, (i) such Lien is not created in contemplation of or in connection with such acquisition, (ii) such Lien shall not apply to any other property of the Borrower or any Subsidiary, and (iii) such Lien shall secure only those obligations it secures on the date of acquisition;
(o)Liens securing Indebtedness permitted pursuant to Section 7.02(f); provided, that, in each case, such Lien shall not extend to any Collateral or the Equity Interests of the Borrower or any other Loan Party;
(p)Liens in favor of a trustee under customary indenture documentation on cash deposited with such trustee in connection with the repayment of Indebtedness issued pursuant to such indenture, to the extent the repayment of such Indebtedness would have been permitted on the date of creation of such Liens;
(q)licenses (including non-exclusive licenses of Intellectual Property otherwise permitted pursuant to this Agreement) or sublicenses granted to third parties in the ordinary course of business and not interfering in any material respect with the business of the Borrower or any of its Subsidiaries;
(r)Liens in favor of customs and revenue authorities arising as a matter of law which secure payment of customs duties in connection with the importation of goods;
(s)any interest of title of a lessor under, and Liens arising from UCC financing statements (or equivalent filings, registrations or agreements in foreign jurisdictions) relating to,
any lease permitted pursuant to this Agreement and entered into by the Borrower or any Subsidiary in the ordinary course of business;
(t)Liens arising from precautionary UCC financing statements (or equivalent filings, registrations or agreements in foreign jurisdictions), but only to the extent such filingfilings, registrations or agreements, as applicable, do not evidence Liens securing Indebtedness;
(u)Liens (i) attaching solely to cash earnest money deposits in connection with any letter of intent or purchase agreement entered into in connection with any Investment permitted pursuant to Section 7.03, or (ii) constituting an agreement to Dispose of any property in a Disposition permitted pursuant to Section 7.05;
(v)Liens arising out of conditional sale, title retention, consignment, bailment or similar arrangements for the purchase, sale or shipment of goods entered into in the ordinary course of business;
(w)Liens securing Indebtedness permitted pursuant to Section 7.02(p); and
(x)Liens on (i) Securitization Related Property existing in connection with any Permitted Securitization Transaction, and (ii) to the extent required pursuant to the Securitization Documents entered into in connection with a Permitted Securitization Transaction, any SPE Deposit Account maintained by the SPE and established in connection with such Permitted Securitization Transaction; provided, that, neither the Borrower nor any of its Subsidiaries shall permit any SPE 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 Liens (i) existing under the Permitted Securitization Transaction to which such SPE is a party, and (ii) permitted under the applicable Securitization Documents to which such SPE is a party;
(y)Liens on assets sold or purported to be sold in connection with any Permitted Supply Chain Financing; and
(xz)other Liens not permitted by the foregoing clauses of this Section 7.01 securing Indebtedness or other obligations permitted pursuant to this Agreement in an aggregate principal amount at any one time outstanding not to exceed the greater of (i) $15,000,000, and (ii) an amount equal to one and one-half percent (1.5%) of Consolidated Total Assets (to be determined by reference to the balance sheet of the Borrower most recently delivered pursuant to Section 6.01(a) or (b) (or, for any determination occurring prior to the first delivery of financial statements pursuant to Section 6.01(a) or (b), to be determined by reference to the Pro Forma Financial Statements)).
Directly or indirectly create, incur, assume or suffer to exist any Indebtedness, except:
(a)Indebtedness under the Loan Documents;
(b)Indebtedness outstanding on the ClosingThird Amendment Effective Date and listed on Schedule 7.02 (and any Permitted Refinancing thereof);
(c)Indebtedness in respect of Capitalized Leases, Synthetic Lease Obligations and purchase money obligations incurred to finance the purchase of fixed assets or to provide all or a portion of the purchase price or cost of construction for an asset, and renewals, replacements, refinancings and extensions thereof; provided, that, (i) the aggregate principal amount of all such Indebtedness shall not exceed $75,000,000 at any one time outstanding, (ii) such Indebtedness when incurred shall not exceed the purchase price of the asset(s) financed or cost of construction of the asset, and (iii) no such Indebtedness shall be refinanced, renewed, replaced, restructured or extended for a principal amount in excess of the principal balance outstanding thereon at the time of such renewal, replacement, refinancing, restructuring or extension;
(d)Indebtedness of any Person acquired after the Closing Date in a Permitted Acquisition or other Acquisition permitted pursuant to Section 7.03, in each case to the extent such Indebtedness was existing at the time of such Permitted Acquisition or such other Acquisition; provided, that, (i) such Indebtedness shall not have been incurred in contemplation of such Permitted Acquisition or such other Acquisition, and (ii) the aggregate principal amount of all such Indebtedness outstanding at any one time shall not exceed an amount equal to the greater of (A) $30,000,000, and (B) an amount equal to three percent (3%) of Consolidated Total Assets (to be determined by reference to the balance sheet of the Borrower most recently delivered pursuant to Section 6.01(a) or (b) (or, for any determination occurring prior to the first delivery of financial statements pursuant to Section 6.01(a) or (b), to be determined by reference to the Pro Forma Financial Statements));
(e)Indebtedness consisting of Earn Out Obligations incurred in connection with Permitted Acquisitions or other Acquisition permitted pursuant to Section 7.03;
(f)Indebtedness of any Subsidiary that is a not a Loan Party in an aggregate principal amount at any one time outstanding not to exceed the greater of (i) $30,000,00040,000,000, and (ii) an amount equal to three percent (3%) of Consolidated Total Assets (to be determined by reference to the balance sheet of the Borrower most recently delivered pursuant to Section 6.01(a) or (b) (or, for any determination occurring prior to the first delivery of financial statements pursuant to Section 6.01(a) or (b), to be determined by reference to the Pro Forma Financial Statements));
(g)intercompany Indebtedness permitted pursuant to Section 7.03 (“Intercompany Debt”); provided, that, in the case of Indebtedness owing by a Loan Party to any Subsidiary that is not a Loan Party, (i) such Indebtedness shall be subordinated to the Secured Obligations in a manner and to the extent acceptable to the Administrative Agent, (ii) such Indebtedness shall not be prepaid unless no Default exists immediately prior to and after giving effect to such prepayment, and (iii) except as otherwise permitted pursuant to Section 7.14(a)(iii), such Indebtedness shall not be repaid in cash or Cash Equivalents and shall not be renewed, extended, refinanced or replaced;
(h)obligations (contingent or otherwise) existing or arising under any Swap Contract (including in connection with any Permitted Call Spread Transaction); provided, that, (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(i)Indebtedness under Secured Cash Management Agreements;
(j)Permitted Unsecured Debt (and any Permitted Refinancing thereof);
(k)(i) Guarantees with respect to Indebtedness of any Loan Party otherwise permitted pursuant to this Section 7.02, and (ii) Guarantees consisting of a guarantee of any obligation (other than Indebtedness) performable by a Subsidiary;
(l)Indebtedness in respect of workers’ compensation claims, self-insurance obligations, performance bonds, surety, appeal or similar bonds and completion guarantees provided by the Borrower and its Subsidiaries in the ordinary course of business;
(m)accrued or deferred expenses (including salaries, accrued vacation and other compensation) arising in the ordinary course of business;
(n)Indebtedness in respect of premium financing arrangements; provided, that, (i) the aggregate principal amount of such Indebtedness shall not exceed the annual premium amount, and (ii) the aggregate principal amount of such Indebtedness, when taken together with the aggregate amount of obligations secured in reliance on Section 7.01(m), shall not exceed $20,000,000 at any one time outstanding;
(o)Indebtedness consisting of unsecured Guarantees by the Borrower or any of its Subsidiaries of purchase orders of any Subsidiary in an aggregate principal amount at any one time outstanding not to exceed $5,000,000;
(p)to the extent constituting Indebtedness, obligations arising in connection with Cash Management Agreements in an aggregate principal amount at any one time outstanding not to exceed $5,000,000;
(q)Indebtedness consisting of obligations owing under any dealer, customer or supplier incentive, supply, license or similar agreements entered into in the ordinary course of business;
(r)to the extent constituting Indebtedness, customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business; and
(s)Indebtedness arising under or in connection with Bilateral Letters of Credit in an aggregate principal amount at any one time outstanding not to exceed $15,000,000;
(t)Indebtedness in respect of any Accounts Receivable Securitization Transaction; provided, that, (i) at the time of, and after giving effect to, the incurrence of Indebtedness, no Default exists, (ii) the aggregate amount of all Attributable Indebtedness with respect to all Accounts Receivable Securitization Transactions, plus the aggregate book value of all accounts receivable sold or purported to be sold in connection with all Permitted Supply Chain Financings, which remain uncollected and un-repurchased, shall not exceed $50,000,000 at any time outstanding, (iii) upon giving Pro Forma Effect to the incurrence of such Indebtedness (and assuming for such purposes that the full amount of the commitments established in connection therewith are utilized, whether or not drawn at such time), (A) the Loan Parties would be in compliance with the financial covenants set forth in Section 7.11 as of the most recently ended fiscal quarter of the Borrower for which the Borrower was required to deliver financial statements
pursuant to Section 6.01(a) or (b), and (B) the Consolidated Leverage Ratio shall not exceed the Leverage Ratio Target (and, if requested by the Administrative Agent or any Lender, the Borrower shall deliver to the Administrative Agent a Pro Forma Compliance Certificate demonstrating compliance with such conditions), (iv) any Accounts Receivable Securitization Transaction shall be non-recourse to, and shall not be Guaranteed by, the Borrower and/or any of its Subsidiaries (other than any SPE formed in connection therewith), other than with respect to purchase or repurchase obligations for breaches of representations and warranties, deemed collection, performance guaranties, and indemnity obligations and other similar undertakings in each case that are customary for similar standard market accounts receivable transactions, and (v) prior to the effectiveness of the Securitization Documents entered into in respect of any Accounts Receivable Securitization Transaction, the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower certifying that (A) such Accounts Receivable Securitization Transaction is permitted pursuant to this Section 7.02(t) (including reasonably detailed calculations to demonstrate compliance with the requirements set forth in clause (iii) of this proviso), and (B) attached thereto are true, complete and correct copies of such Securitization Documents; provided, further, that, neither the Borrower nor any of its Subsidiaries shall permit any SPE to, directly or indirectly, create, incur, assume or suffer to exist any Indebtedness other than Indebtedness (1) existing from time to time under the Permitted Securitization Transaction to which such SPE is a party, and (2) permitted under the applicable Securitization Documents to which such SPE is a party (it being understood and agreed that Indebtedness of any SPE described in this proviso shall be permitted pursuant to this Agreement to the extent such Indebtedness is otherwise permitted pursuant to this Section 7.02(t));
(u)to the extent constituting Indebtedness, any Supply Chain Financing Obligation; and
(sv)Indebtedness not permitted by any of the foregoing clauses of this Section 7.02 in an aggregate principal amount at any one time outstanding not to exceed the greater of (i) $15,000,000, and (ii) an amount equal to one and one-half percent (1.5%) of Consolidated Total Assets (to be determined by reference to the balance sheet of the Borrower most recently delivered pursuant to Section 6.01(a) or (b) (or, for any determination occurring prior to the first delivery of financial statements pursuant to Section 6.01(a) or (b), to be determined by reference to the Pro Forma Financial Statements)).
Directly or indirectly make or hold any Investments, except:
(a)Investments in the form of cash and Cash Equivalents;
(b)Investments existing as of the ClosingThird Amendment Effective Date and set forth on Schedule 7.03, as such Investments may be adjusted due to appreciation, repayment of principal, payment of interest, return of capital or similar circumstances;
(c)Investments in any Person that is a Loan Party prior to, or simultaneously with, giving effect to such Investment;
(d)Investments by any Subsidiary that is not a Loan Party in any other Subsidiary that is not a Loan Party;
(e)(i) receivables owing to any Loan Party or any Subsidiary, or (ii) any receivables and advances to suppliers; in each case, if created, acquired or made in the ordinary course of business and payable or dischargeable in accordance with customary trade terms;
(f)(i) loans and advances to officers, directors and employees of the Borrower or any Subsidiary for relocation, travel, entertainment and related expenses, and (ii) loans and advances to employees of the Borrower or any Subsidiary made in the ordinary course of business; provided, that, in the case of clauses (i) and (ii), (A) such loans and advances shall comply with all applicable requirements of Law, and (B) the aggregate principal amount of all such loans and advances shall not exceed $3,000,000 at any one time outstanding;
(g)Investments (including debt obligations) received in connection with the bankruptcy or reorganization of suppliers and customers of the Borrower or any Subsidiary and in the settlement of delinquent obligations of, and other disputes with, customers and suppliers of the Borrower or any Subsidiary arising in the ordinary course of business;
(h)(i) Swap Contracts permitted by Section 7.02(h); and (ii) the purchase of any Permitted Call Spread Transaction by the Borrower and the performance by the Borrower of its obligations thereunder;
(i)(i) Permitted Acquisitions; (ii) so long as such Acquisition is consummated on or prior to the date that is one hundred eighty (180) days after the Closing Date, the Telerob Acquisition; and (iii) so long as such Acquisition is consummated on or prior to the date that is one hundred eighty (180) days after the Closing Date, the Prism Acquisition;
(j)Guarantees permitted by Section 7.02 (other than by reference to this Section 7.03 (or any clause hereof));
(k)Investments in joint ventures or minority Equity Interests (other than any Acquisition); provided, that, the aggregate amount of all such Investments shall not exceed the greater of (i) $30,000,000, and (ii) an amount equal to three percent (3%) of Consolidated Total Assets (to be determined by reference to the balance sheet of the Borrower most recently delivered pursuant to Section 6.01(a) or (b) (or, for any determination occurring prior to the first delivery of financial statements pursuant to Section 6.01(a) or (b), to be determined by reference to the Pro Forma Financial Statements));
(l)Investments consisting of Permitted Liens, Indebtedness to the extent permitted pursuant to Section 7.02, fundamental changes to the extent permitted pursuant to Section 7.04, and Restricted Payments to the extent permitted pursuant to Section 7.06 (in each case, other than by reference to this Section 7.03 (or any clause hereof));
(m)Investments in any SPE formed in connection with any Permitted Securitization Transaction; provided, that, such Investments are customary in amount and scope to similar standard market accounts receivable transactions;
(mn)additional Investments (other than any Acquisition), including, for the avoidance of doubt, Investments in joint ventures or minority Equity Interests (other than any Acquisition), in an aggregate amount for all such Investments not to exceed the Available Amount; provided, that, (i) upon giving Pro Forma Effect to any such Investment, (A) the Loan Parties will be in
compliance with the financial covenants set forth in Section 7.11 as of the most recently ended fiscal quarter of the Borrower for which the Borrower was required to deliver financial statements pursuant to Section 6.01(a) or (b), and (B) the Consolidated Leverage Ratio shall not exceed the Leverage Ratio Target (and, if requested by the Administrative Agent or any Lender, the Borrower shall deliver to the Administrative Agent a Pro Forma Compliance Certificate demonstrating compliance with such conditionconditions), and (ii) no Default shall exist or would result from giving effect to any such Investment; and
(no)other Investments (other than any Acquisition) not permitted by any of the foregoing clauses of this Section 7.03 (including, for the avoidance of doubt, Investments in joint ventures or minority Equity Interests (other than any Acquisition) not otherwise permitted by any of the foregoing clauses of this Section 7.03); provided, that, (i) upon giving Pro Forma Effect to such Investment, (A) the Loan Parties will be in compliance with the financial covenants set forth in Section 7.11 as of the most recently ended fiscal quarter of the Borrower for which the Borrower was required to deliver financial statements pursuant to Section 6.01(a) or (b), and (B) the Consolidated Leverage Ratio will be less than 2.75 to 1.0 (and, if requested by the Administrative Agent or any Lender, the Borrower shall deliver to the Administrative Agent a Pro Forma Compliance Certificate demonstrating compliance with such conditions), and (ii) no Default shall exist or would result from giving effect to any such Investment.
Directly or indirectly merge, dissolve, 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; provided, that, notwithstanding the foregoing provisions of this Section 7.04, but subject to the terms of Sections 6.12 and 6.13: (a) the Borrower may merge or consolidate with any of its Subsidiaries; provided, that, the Borrower shall be the continuing or surviving Person of such merger or consolidation; (b) any Loan Party (other than the Borrower) may merge or consolidate with any other Loan Party (other than the Borrower); (c) any Subsidiary that is not a Loan Party may merge or consolidate with any Loan Party; provided, that, such Loan Party shall be the continuing or surviving Person of such merger or consolidation; (d) any Subsidiary that is not a Loan Party may merge or consolidate with any other Subsidiary that is not a Loan Party; (e) the Borrower and any Subsidiary may engage in a Disposition permitted pursuant to Section 7.05, an Investment permitted pursuant to Section 7.03, or a Restricted Payment permitted pursuant to Section 7.06 (in each case other than by reference to this Section 7.04 (or any clause hereof)); and (f) any Subsidiary that is not a Loan Party may be dissolved, liquidated or wound up; provided, that, prior to or simultaneously(i) after giving effect thereto, no Default has occurred and is continuing, (ii) such dissolution, liquidation or winding up, as applicable, could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, and (iii) in connection with any such dissolution, liquidation or winding up, allany assets of such Subsidiary shall be (A) transferred to the Borrower and/or one or more of its Subsidiaries (provided, that, if a Loan Party is dissolving, liquidating, or winding up, the assets of such Loan Party shall be transferred to a Loan Party or, to the extent required by law or binding contract, a creditor or creditors thereof.in connection with such dissolution, liquidation or winding up (or, if not transferred to a Loan Party, the assets of such Loan Party may be transferred to any other Person so long as (1) such transfer constitutes an Investment, and (2) such Investment shall be permitted pursuant to Section 7.03 (other than by reference to this Section 7.04 (or any clause hereof)))), or (B) otherwise Disposed of in a disposition that is permitted pursuant to Section 7.05 (other than by reference to this Section 7.04 (or any clause hereof)).
Directly or indirectly make any Disposition or enter into any agreement to make any Disposition, except for:
| (a) | any Permitted Transfer; |
Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
(a)each Subsidiary may declare and make Restricted Payments to the Borrower and to any Subsidiary that owns Equity Interests of such Subsidiary (and, in the case of a dividend or other distribution by a Non-Wholly Owned Subsidiary of the Borrower, to the Borrower or other Subsidiary and to each other owner of Equity Interests of such Non-Wholly Owned Subsidiary ratably based on their relative ownership interests);
(b)the Borrower and each Subsidiary may declare and make Restricted Payments payable solely in the Qualified Capital Stock of such Person;
(c)the Borrower and each Subsidiary may redeem, repurchase, retire or otherwise acquire Equity Interests to the extent such redemption, repurchase, retirement or other acquisition is deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options;
(d)so long as no Default shall have occurred and be continuing at the time of such Restricted Payment or would result therefrom, the Borrower may repurchase or redeem Qualified Capital Stock of the Borrower held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates) of the Borrower or any Subsidiary, upon their death, disability, retirement, severance or termination of
employment or service; provided, that, the aggregate cash consideration paid for all such redemptions and repurchases shall not exceed $2,000,000 in any fiscal year of the Borrower; and
(e)the Borrower or any Subsidiary may make any Restricted Payment; provided, that, (i) no Default shall have occurred and be continuing at the time of such Restricted Payment or would result therefrom, and (ii) upon giving Pro Forma Effect to any such Restricted Payment, (A) the Loan Parties would be in compliance with the financial covenants set forth in Section 7.11 as of the most recently ended fiscal quarter of the Borrower for which the Borrower was required to deliver financial statements pursuant to Section 6.01(a) or (b), and (B) the Consolidated Leverage Ratio is less than 2.75 to 1.0 (and, if requested by the Administrative Agent or any Lender, the Borrower shall deliver to the Administrative Agent a Pro Forma Compliance Certificate demonstrating compliance with such conditions).; and
(f)to the extent constituting a Restricted Payment, any Junior Debt Payment permitted pursuant to Section 7.14(a)(iv).
7.07Change in Nature of Business.
Directly or indirectly engage in any material line of business substantially different from those lines of business conducted by the Borrower and its Subsidiaries on the ClosingThird Amendment Effective Date or any business reasonably related, complimentary, ancillary or incidental thereto.
7.08Transactions with Affiliates.
Directly or indirectly enter into or permit to exist any transaction or series of transactions with any officer, director or Affiliate of such Person other than (a) advances of working capital (i) by any Loan Party to any other Loan Party, or (ii) by any Subsidiary that is not a Loan Party to any Loan Party or any other Subsidiary, (b) transfers of cash and assets (i) by any Loan Party to any other Loan Party, or (ii) by any Subsidiary to any Loan Party or any other Subsidiary, (c) intercompany transactions (i) expressly permitted by Section 7.02, Section 7.03, Section 7.04, Section 7.05 or Section 7.06 (in each case, other than by reference to this Section 7.08 (or any clause hereof)), or (ii) solely among the Loan Parties and the Subsidiaries, (d) reasonable and customary officer, director and employee compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plans) and reasonable indemnification and severance arrangements, in each case in the ordinary course of business, and (e) except as otherwise specifically prohibited 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.
Directly or indirectly 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 Loan Party, (ii) pay any Indebtedness or other obligations owed to any Loan Party, (iii) make loans or advances to any Loan Party, (iv) transfer any of its property to any Loan Party, (v) pledge its property pursuant to the Loan Documents or any renewals, refinancings, exchanges, refundings or extension thereof, or (vi) act as a Loan Party pursuant to the Loan Documents or any renewals, refinancings, exchanges, refundings or extension thereof, except (in respect of any of the matters referred to in clauses (a)(i) through (a)(v) above) for (A) this Agreement and the other Loan Documents, (B) any instrument governing Indebtedness assumed in connection with any Permitted Acquisition or other Investment permitted pursuant to Section 7.03, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other
than the Person or the properties or assets of the Person so acquired, (C) any such encumbrance or restriction consisting of customary non-assignment provisions in leases or licenses restricting leasehold interests or licenses, as applicable, entered into in the ordinary course of business, (D) customary provisions in joint venture agreements and other similar agreements that restrict the transfer of ownership interests in such joint venture or provisions limiting the disposition or distribution of assets or property (other than dividends on a pro rata basis based on ownership percentage), which limitation is applicable only to the assets that are the subject of such agreements, (E) customary restrictions and conditions contained in any agreement relating to the sale of any property permitted pursuant to Section 7.05 pending the consummation of such sale, or (F) any document or instrument governing any Permitted Lien, in each case, to the extent that any such restriction contained therein relates only to the asset or assets subject to such Liens, or (G) purchase or repurchase obligations for breaches of representations and warranties, deemed collection, performance guaranties, and indemnity obligations and other similar undertakings in Securitization Documents entered into in connection with Permitted Securitization Transactions (in each case, to the extent such undertakings are customary for similar standard market accounts receivable transactions), or (b) requires the grant of any security for any obligation if such property is given as security for the Secured Obligations (except to the extent such grant constitutes a Permitted Lien).
Use the proceeds of any Credit Extension, whether directly or indirectly, and whether immediately, incidentally or ultimately, to purchase or carry margin stock (within the meaning of Regulation U) or to extend credit to others for the purpose of purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose.
(a)Consolidated Senior Secured Leverage Ratio. Permit the Consolidated Senior Secured Leverage Ratio as of the end of any Measurement Period ending as of the end of any fiscal quarter of the Borrower to be greater than (i) 3.00 to 1.0, for any fiscal quarter ending during the period from the Closing Date to and including October 30, 2021, (ii) 4.00 to 1.0, for any fiscal quarter ending during the period from October 31, 2021 to and including April 30, 2022, (iii) 3.50 to 1.0, for any fiscal quarter ending during the period from May 1, 2022 to and including October 31, 2022, and (iv) 3.00 to 1.0, for any fiscal quarter ending thereafter; provided, that, on and after November 1, 2022, upon the occurrence of a Qualified Acquisition, for each of the four (4) fiscal quarters of the Borrower immediately following the consummation of such Qualified Acquisition (including, for the avoidance of doubt, the fiscal quarter in which such Qualified Acquisition was consummated) (such period of increase, a “Leverage Increase Period”), the applicable ratio set forth above immediately prior to this proviso shall be increased to 3.50 to 1.0; provided, further, that, (A) no more than one (1) Leverage Increase Period shall be in effect at any time, (B) for at least two (2) fiscal quarters of the Borrower immediately following each Leverage Increase Period, the Consolidated Leverage Ratio as of the end of such fiscal quarters shall not be greater than 3.00 to 1.0 prior to giving effect to another Leverage Increase Period, and (C) each Leverage Increase Period shall only apply with respect to the calculation of the Consolidated Leverage Ratio for purposes of (1) determining compliance with the financial maintenance covenant set forth in this Section 7.11(a) as of the end of any period of four (4) consecutive fiscal quarters of the Borrower ending as of the last day of any fiscal quarter of the Borrower, and (2) determining the permissibility of the consummation of the Qualified Acquisition with respect to which such Leverage Increase Period relates (or, to the extent such Qualified Acquisition is financed with the proceeds of an Incremental Facility or any Permitted Unsecured Debt, for purposes of determining the permissibility of the incurrence of such
Incremental Facility or such Permitted Unsecured Debt in connection with the consummation of such Qualified Acquisition).the Leverage Ratio Target.
(b)Consolidated Fixed Charge Coverage Ratio. Permit the Consolidated Fixed Charge Coverage Ratio as of the end of any Measurement Period ending as of the end of any fiscal quarter of the Borrower to be less than 1.25 to 1.0.
7.12Amendments of Organization Documents; Changes in Fiscal Year, Legal Name, State of Organization, or Form of Entity; Accounting Changes.
(a)Amend any of its Organization Documents in any manner that is materially adverse to the Lenders.
(b)Change its fiscal year; provided, that, the Closing Date Acquisition Target may change its fiscal year to match the fiscal year of the Borrower.
(c)Without providing ten (10) days prior written notice to the Administrative Agent (or such shorter period of time as agreed to by the Administrative Agent in its sole discretion), change its legal name, state of organization, or form of organization.
(d)Make any change in accounting policies or reporting practices, except as required by GAAP.
7.13Sale and Leaseback Transactions.
Directly or indirectly enter into any Sale and Leaseback Transaction.
Make: (a) any Junior Debt Payment except that: (i) a Permitted Refinancing permitted pursuant to Section 7.02(b) or Section 7.02(j) may be consummated; (ii) the Borrower may make Junior Debt Payments to the extent made solely with the Qualified Capital Stock of the Borrower; and (iii) the Borrower or any Subsidiary may make any Junior Debt Payment with the Available Amount; provided, that, (A) no Default shall have occurred and be continuing at the time of such Junior Debt Payment or would result therefrom, and (B) upon giving Pro Forma Effect to such Junior Debt Payment, (1) the Loan Parties would be in compliance with the financial covenants set forth in Section 7.11 as of the most recently ended fiscal quarter of the Borrower for which the Borrower was required to deliver financial statements pursuant to Section 6.01(a) or (b), and (2) the Consolidated Leverage Ratio shall not exceed the Leverage Ratio Target (and, in connection with any such payment in excess of $5,000,000, if requested by the Administrative Agent or any Lender, the Borrower shall deliver to the Administrative Agent a Pro Forma Compliance Certificate demonstrating compliance with such condition)conditions); (iv) the Borrower may make any payments of cash or deliveries in shares of Common Stock (or other securities or property following a merger event, reclassification or other change of the Common Stock) (and cash in lieu of fractional shares) pursuant to the terms of, and otherwise perform its obligations under, any Permitted Convertible Indebtedness (including making payments of interest and principal thereon, making payments due upon required repurchase thereof and/or making payments and deliveries upon conversion or settlement thereof); and (v) the Borrower may pay the premium in respect of, make any payments (of cash or deliveries in shares of Common Stock or other securities or property following a merger event, reclassification or other change of the Common Stock and cash in lieu of fractional shares) required by, and otherwise perform its obligations under, any Permitted Call Spread Transaction,
including in connection with any settlement, unwind or termination thereof; or (b) any payment in violation of any subordination and/or intercreditor terms applicable to any Junior Debt.
7.15Amendment, Etc. of Junior Debt; Amendment, Etc. of Permitted Securitization Transactions.
Directly or indirectly amend, modify or change in any manner any term or condition of: (a) any Junior Debt, in each caseany manner that is adverse in any material respect to the interest of the Lenders; or (b) any Permitted Securitization Transaction (or the Securitization Documents entered into in connection therewith) in any manner that is adverse in any material respect to the interest of the Lenders.
Directly or knowingly indirectly use any Credit Extension or the proceeds of any Credit Extension, or lend, contribute or otherwise make available such Credit Extension or the proceeds of any Credit Extension to any Person, to fund any activities of or business with any Person, or in any Designated Jurisdiction, that, at the time of such funding, is the subject of Sanctions, or in any other manner that will result in a violation by any Person (including any Person participating in the transaction, whether as Lender, Arranger, Administrative Agent, L/C Issuer, Swingline Lender, or otherwise) of Sanctions.
Directly or knowingly indirectly use any Credit Extension or the proceeds of any Credit Extension for any purpose which would breach the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010 and other anti-corruption legislation in other jurisdictions.
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
Any of the following shall constitute an “Event of Default”:
(a)Non-Payment. The Borrower or any other Loan Party fails to pay (i) when and as required to be paid herein, any amount of principal of any Loan or any L/C Obligation or deposit any funds as Cash Collateral in respect of L/C Obligations, or (ii) within three (3) days after the same becomes due, any interest on any Loan or on any L/C Obligation, or any fee due hereunder, or (iii) within five (5) days after the same becomes due, any other amount payable hereunder or under any other Loan Document; or
(b)Specific Covenants. Any Loan Party fails to perform or observe any term, covenant or agreement contained in any of Section 6.01, 6.02, 6.03(a), 6.05(a) (solely with respect to the Borrower), 6.10, 6.11, 6.15 or Article VII; or
(c)Other Defaults. Any Loan Party fails to perform or observe any other covenant or agreement (not specified in Section 8.01(a) or (b)) contained in any Loan Document on its part to be performed or observed and such failure continues for thirty (30) days after the earlier to occur of (i) a Responsible Officer of a Loan Party becoming aware of such failure, and (ii) written notice thereof being provided to the Borrower by the Administrative Agent or any Lender; or
(d)Representations and Warranties. Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of the Borrower or any other Loan Party herein, in any other Loan Document, or in any document delivered in connection herewith or therewith shall be materially incorrect or materially misleading (or, in each case, if such representation, warranty, certification or statement of fact is already qualified by materiality, incorrect or misleading in any respect) when made or deemed made; or
(e)Cross-Default. (i) Any Loan Party or any Subsidiary (A) fails to make any payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise but giving effect to any applicable grace and notice period with respect thereto) in respect of any Indebtedness or Guarantee (other than Indebtedness hereunder and Indebtedness under Swap Contracts) 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, or (B) fails to observe or perform (after giving effect to any applicable grace and notice period with respect thereto) any other agreement or condition relating to any such Indebtedness or Guarantee or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event occurs, the effect of which default or other event is to cause, or to permit the holder or holders of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to be demanded or to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity, or such Guarantee to become payable or cash collateral in respect thereof to be demanded; or (ii) there occurs under any Swap Contract an Early Termination Date (as defined in such Swap Contract) resulting from (A) any event of default under such Swap Contract as to which a Loan Party or any Subsidiary is the Defaulting Party (as defined in such Swap Contract), or (B) any Termination Event (as defined in such Swap Contract) under such Swap Contract as to which a Loan Party or any Subsidiary is an Affected Party (as defined in such Swap Contract) and, in either event, the Swap Termination Value owed by such Loan Party or such Subsidiary as a result thereof is greater than the Threshold Amount; orprovided, that, this Section 8.01(e) shall not apply to (1) any repurchase, prepayment, defeasance, redemption, conversion or settlement with respect to any Permitted Convertible Indebtedness pursuant to its terms unless such repurchase, prepayment, defeasance, redemption, conversion or settlement (x) results from a default thereunder, fundamental change (or equivalent term thereunder) or an event of the type that constitutes an Event of Default, and (y) in the case of any such conversion that can be satisfied in Common Stock at the election of the Borrower, the Borrower provides notice to the applicable holders of such Permitted Convertible Indebtedness that the conversion will be settled in cash (other than cash in lieu of fractional shares) in an amount that would not be permitted as a Junior Debt Payment under Section 7.14(a) (other than Section 7.14(a)(iv)), or (2) any early payment requirement or unwinding or termination with respect to any Permitted Call Spread Transaction; or
(f)Insolvency Proceedings, Etc. Any Loan Party or any Subsidiary institutes or consents to the institution of any proceeding under any Debtor Relief Law, or makes an assignment for the benefit of creditors; or applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for all or any material part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of such Person and the appointment continues undischarged or unstayed for sixty (60) days; or any proceeding under any Debtor Relief Law relating to any such Person or to all or any material part of its property is
instituted without the consent of such Person and continues undismissed or unstayed for sixty (60) days, or an order for relief is entered in any such proceeding; or
(g)Inability to Pay Debts; Attachment. (i) Any Loan Party or any Subsidiary becomes unable or admits in writing its inability or fails generally to pay its debts as they become due, or (ii) any writ or warrant of attachment or execution or similar process is issued or levied against all or any material part of the property of any such Person and is not released, vacated or fully bonded within thirty (30) days after its issue or levy; or
(h)Judgments. There is entered against any Loan Party or any Subsidiary (i) one or more final judgments or orders for the payment of money in an aggregate amount (as to all such judgments and orders) exceeding the Threshold Amount (to the extent not covered by independent third-party insurance as to which the insurer is rated at least “A” by A.M. Best Company, has been notified of the potential claim and does not dispute coverage), or (ii) any one or more non-monetary final judgments that have, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and, in either case, (A) enforcement proceedings are commenced by any creditor upon such judgment or order, or (B) there is a period of thirty (30) consecutive days during which a stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect; or
(i)ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which has resulted or could reasonably be expected to result in liability of any Loan Party under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of the Threshold Amount, or (ii) the Borrower or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in excess of the Threshold Amount; or
(j)Invalidity of Loan Documents. Any material provision of any Loan Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or upon the occurrence of the Facility Termination Date, ceases to be in full force and effect; or any Loan Party or any other Person contests in any manner the validity or enforceability of any provision of any Loan Document; or any Loan Party denies that it has any or further liability or obligation under any provision of any Loan Document, or purports to revoke, terminate or rescind any provision of any Loan Document; or it is or becomes unlawful for a Loan Party to perform any of its material obligations under the Loan Documents; or
(k)Collateral Documents. Any Collateral Document after delivery thereof pursuant to the terms of the Loan Documents shall for any reason cease to create a valid and perfected first priority Lien (subject to Permitted Liens) on any material portion of the Collateral purported to be covered thereby, or any Loan Party shall assert the invalidity of such Liens; or
(l)Change of Control. There occurs any Change of Control.
Without limiting the provisions of Article IX, if a Default shall have occurred under the Loan Documents, then such Default will continue to exist until it either is cured (to the extent specifically permitted) in accordance with the Loan Documents or is otherwise expressly waived by the Administrative Agent (with the approval of requisite Appropriate Lenders (in their sole discretion) as determined in accordance with Section 11.01); and once an Event of Default occurs under the Loan Documents, then such Event of Default will continue to exist until it is expressly waived by the requisite
Appropriate Lenders or by the Administrative Agent with the approval of the requisite Appropriate Lenders, as required hereunder in Section 11.01.
8.02Remedies upon Event of Default.
If any Event of Default occurs and is continuing, the Administrative Agent shall, at the request of, or may, with the consent of, the Required Lenders, take any or all of the following actions:
(a)declare the Commitments of each Lender to make Loans and any obligation of each L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such Commitments and obligation shall be terminated;
(b)declare the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower;
(c)require that the Borrower Cash Collateralize the L/C Obligations (in an amount equal to the Minimum Collateral Amount with respect thereto); and
(d)exercise on behalf of itself, the Lenders and the L/C Issuers all rights and remedies available to it, the Lenders and the L/C Issuers under the Loan Documents or applicable Law or equity;
provided, that, upon the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code of the United States, the obligation of each Lender to make Loans and any obligation of each L/C Issuer to make L/C Credit Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable, and the obligation of the Borrower to Cash Collateralize the L/C Obligations as aforesaid shall automatically become effective, in each case without further act of the Administrative Agent or any Lender.
After the exercise of remedies provided for in Section 8.02 (or after the Loans have automatically become immediately due and payable and the L/C Obligations have automatically been required to be Cash Collateralized as set forth in the proviso to Section 8.02) or if at any time insufficient funds are received by and available to the Administrative Agent to pay fully all Secured Obligations then due hereunder, any amounts received on account of the Secured Obligations shall, subject to the provisions of Sections 2.14 and 2.15, be applied by the Administrative Agent in the following order:
First, to payment of that portion of the Secured Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to the Administrative Agent and amounts payable under Article III) payable to the Administrative Agent in its capacity as such;
Second, to payment of that portion of the Secured Obligations constituting fees, indemnities and other amounts (other than principal, interest and Letter of Credit Fees) payable to the Lenders and the L/C Issuers (including fees, charges and disbursements of counsel to the respective Lenders and the L/C Issuers) arising under the Loan Documents and amounts payable
under Article III, ratably among them in proportion to the respective amounts described in this clause Second payable to them;
Third, to payment of that portion of the Secured Obligations constituting accrued and unpaid Letter of Credit Fees and interest on the Loans, L/C Disbursements and other Secured Obligations arising under the Loan Documents, ratably among the Lenders and the L/C Issuers in proportion to the respective amounts described in this clause Third payable to them;
Fourth, to payment of that portion of the Secured Obligations constituting unpaid principal of the Loans, L/C Disbursements and, Secured Obligations then owing under the Secured Hedge Agreements and, the Secured Cash Management Agreements and the Secured Bilateral Letters of Credit, and to the Administrative Agent for the account of the L/C Issuers, to Cash Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit to the extent required by, and not otherwise Cash Collateralized by the Borrower pursuant to, Sections 2.03 and 2.14, in each case ratably among the Administrative Agent, the Lenders, the L/C Issuers, the Secured Hedge Banks and, the Secured Cash Management Banks and the Secured Bilateral Letter of Credit L/C Issuers in proportion to the respective amounts described in this clause Fourth held by them; and
Last, the balance, if any, after all of the Secured Obligations have been indefeasibly paid in full, to the Borrower or as otherwise required by Law.
Subject to Sections 2.03(q) and 2.14, amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause Fourth above shall be applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other Secured Obligations, if any, in the order set forth above. Excluded Swap Obligations with respect to any Guarantor shall not be paid with amounts received from such Guarantor or its assets, but appropriate adjustments shall be made with respect to payments from other Loan Parties to preserve the allocation to Secured Obligations otherwise set forth above in this Section 8.03.
Notwithstanding the foregoing, Secured Obligations arising under Secured Cash Management Agreements and, Secured Hedge Agreements and Secured Bilateral Letters of Credit shall be excluded from the application described above if the Administrative Agent has not received a Secured Party Designation Notice, together with such supporting documentation as the Administrative Agent may request, from the applicable Cash Management Bank or, the applicable Hedge Bank or the applicable Bilateral Letter of Credit L/C Issuer, as the case may be. Each Secured Cash Management Bank or, each Secured Hedge Bank and each Secured Bilateral Letter of Credit L/C Issuer that is not a party to this Agreement and that has given the notice contemplated by the preceding sentence shall, by such notice, be deemed to have acknowledged and accepted the appointment of the Administrative Agent pursuant to the terms of Article IX for itself and its Affiliates as if a “Lender” party hereto.
ARTICLE IX
ADMINISTRATIVE AGENT
9.01Appointment and Authority.
(a)Appointment. Each of the Lenders and the L/C Issuers hereby irrevocably appoints, designates and authorizes Bank of America to act on its behalf as the Administrative
Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article IX are solely for the benefit of the Administrative Agent, the Lenders and the L/C Issuers, and neither the Borrower nor any other Loan Party shall have rights as a third party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties.
(b)Collateral Agent. The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (including in its capacities as a potential Secured Hedge Bank and, a potential Secured Cash Management Bank and a potential Secured Bilateral Letter of Credit L/C Issuer) and the L/C Issuers hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and such L/C Issuer for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Secured Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 9.05 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Article IX and Article XI (including Section 11.04(c), as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents) as if set forth in full herein with respect thereto.
The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of banking, trust, financial, advisory, underwriting or other business with any Loan Party or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders or to provide notice to or consent of the Lenders with respect thereto.
(a)Neither the Administrative Agent nor any Arranger, as applicable, shall have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, none of the Administrative Agent, any Arranger, or any of their respective Related Parties:
(i)shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;
(ii)shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents); provided, that, the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law; or
(iii)shall have any duty or responsibility to disclose, and shall not be liable for the failure to disclose, to any Lender or any L/C Issuer any credit or other information concerning the business, prospects, operations, property, financial and other condition or creditworthiness of any of the Loan Parties or any of their Affiliates that is communicated to, or in the possession of, the Administrative Agent, such Arranger or any of their respective Related Parties in any capacity, except for notices, reports and other documents expressly required to be furnished to the Lenders by the Administrative Agent herein.
(b)Neither the Administrative Agent nor any of its Related Parties shall be liable for any action taken or not taken by the Administrative Agent under or in connection with this Agreement or any other Loan Document or the transactions contemplated hereby or thereby (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary), or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 11.01 and 8.02), or (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until notice describing such Default is given in writing to the Administrative Agent by the Borrower, a Lender or an L/C Issuer.
(c)Neither the Administrative Agent nor any of its Related Parties have any duty or obligation to any Lender or participant or any other Person to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (v) the value or the sufficiency of any Collateral, or (vi) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.
9.04Reliance by Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall be fully protected in relying and shall not incur any liability for relying upon, any notice, request, certificate, communication, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or
otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall be fully protected in relying and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an L/C Issuer, the Administrative Agent may presume that such condition is satisfactory to such Lender or such L/C Issuer unless the Administrative Agent shall have received notice to the contrary from such Lender or such L/C Issuer prior to the making of such Loan or the issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Loan 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. For purposes of determining compliance with the conditions specified in Section 4.012 of the Third Amendment, each Lender that has signed this Agreementthe Third Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed ClosingThird Amendment Effective Date specifying its objections.
The Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article IX shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the Facilities as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents.
9.06Resignation of Administrative Agent.
(a)Notice. The Administrative Agent may at any time give notice of its resignation to the Lenders, the L/C Issuers and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with the Borrower, and, at all times other than during the existence of an Event of Default, with the Borrower’s consent (such consent not to be unreasonably withheld), to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days after the retiring Administrative Agent gives notice of its resignation (or such earlier day as shall be agreed by the Required Lenders) (the “Resignation Effective Date”), then the retiring Administrative Agent may (but shall not be obligated to) on behalf of the Lenders and the L/C Issuers, appoint a successor Administrative Agent meeting the qualifications set forth above; provided, that, in no event shall any successor Administrative Agent be a Defaulting Lender. Whether or not a successor has been appointed, such resignation shall become effective in accordance with such notice on the Resignation Effective Date.
(b)Defaulting Lender. If the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause (d) of the definition thereof, the Required Lenders may, to the extent
permitted by applicable Law, by notice in writing to the Borrower and such Person remove such Person as Administrative Agent and, in consultation with the Borrower, and, at all times other than during the existence of an Event of Default, with the Borrower’s consent (such consent not to be unreasonably withheld), appoint a successor. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days (or such earlier day as shall be agreed by the Required Lenders) (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date.
(c)Effect of Resignation or Removal. With effect from the Resignation Effective Date or the Removal Effective Date (as applicable), (i) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Administrative Agent on behalf of the Lenders or the L/C Issuers under any of the Loan Documents, the retiring or removed Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed), and (ii) except for any indemnity payments or other amounts then owed to the retiring or removed Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each L/C Issuer directly, until such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided for above. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring or removed Administrative Agent (other than as provided in Section 3.01(h) and other than any rights to indemnity payments or other amounts owed to the retiring or removed Administrative Agent as of the Resignation Effective Date or the Removal Effective Date (as applicable)), and the retiring or removed Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section 9.06(c)). The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the retiring or removed Administrative Agent’s resignation or removal hereunder and under the other Loan Documents, the provisions of this Article IX and Section 11.04 shall continue in effect for the benefit of such retiring or removed Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them (A) while the retiring or removed Administrative Agent was acting as Administrative Agent, and (B) after such resignation or removal for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including (1) acting as collateral agent or otherwise holding any collateral security on behalf of any of the Secured Parties, and (2) in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent.
(d)L/C Issuer and Swingline Lender. Any resignation or removal by Bank of America as Administrative Agent pursuant to this Section 9.06 shall also constitute its resignation as an L/C Issuer and the Swingline Lender. If Bank of America resigns as an L/C Issuer, it shall retain all the rights, powers, privileges and duties of an L/C Issuer hereunder with respect to all Letters of Credit issued by it and outstanding as of the effective date of its resignation as an L/C Issuer and all L/C Obligations with respect thereto, including the right to require the Revolving Lenders to make Revolving Loans that are Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(f). If Bank of America resigns as the Swingline Lender, it shall retain all the rights of the Swingline Lender provided for hereunder with respect to Swingline Loans made by it and outstanding as of the effective date of such resignation, including the right to require the Revolving Lenders to make Revolving Loans that are Base Rate
Loans or fund risk participations in outstanding Swingline Loans pursuant to Section 2.04(c). Upon the appointment by the Borrower of a successor L/C Issuer or Swingline Lender hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (i) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer or Swingline Lender, as applicable, (ii) the retiring L/C Issuer and Swingline Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents, and (iii) the successor L/C Issuer shall issue Letters of Credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Bank of America to effectively assume the obligations of Bank of America with respect to such Letters of Credit.
9.07Non-Reliance on Administrative Agent, Arrangers and Other Lenders.
Each Lender and each L/C Issuer expressly acknowledges that none of the Administrative Agent nor any Arranger has made any representation or warranty to it, and that no act by the Administrative Agent or any Arranger hereafter taken, including any consent to, and acceptance of any assignment or review of the affairs of any Loan Party or any Affiliate thereof, shall be deemed to constitute any representation or warranty by the Administrative Agent or any Arranger to any Lender or any L/C Issuer as to any matter, including whether the Administrative Agent or any Arranger have disclosed material information in their (or their respective Related Parties’) possession. Each Lender and each L/C Issuer represents to the Administrative Agent and each Arranger that it has, independently and without reliance upon the Administrative Agent, such Arranger, any other Lender or any of their respective Related Parties, and based on such documents and information as it has deemed appropriate, made its own credit analysis of, appraisal of, and investigation into, the business, prospects, operations, property, financial and other condition and creditworthiness of the Borrower and its Subsidiaries, and all applicable bank or other regulatory Laws relating to the transactions contemplated hereby, and made its own decision to enter into this Agreement and to extend credit to the Borrower hereunder. Each Lender and each L/C Issuer also acknowledges that it will, independently and without reliance upon the Administrative Agent, any Arranger, any other Lender or any of their respective Related Parties, and based on such documents and information as it shall from time to time deem appropriate, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder, and to make such investigations as it deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness of the Loan Parties. Each Lender and each L/C Issuer represents and warrants that (a) the Loan Documents set forth the terms of a commercial lending facility, and (b) it is engaged in making, acquiring or holding commercial loans in the ordinary course and is entering into this Agreement as a Lender or an L/C Issuer for the purpose of making, acquiring or holding commercial loans and providing other facilities set forth herein as may be applicable to such Lender or such L/C Issuer, and not for the purpose of purchasing, acquiring or holding any other type of financial instrument, and each Lender and each L/C Issuer agrees not to assert a claim in contravention of the foregoing. Each Lender and each L/C Issuer represents and warrants that it is sophisticated with respect to decisions to make, acquire and/or hold commercial loans and to provide other facilities set forth herein, as may be applicable to such Lender or such L/C Issuer, and either it, or the Person exercising discretion in making its decision to make, acquire and/or hold such commercial loans or to provide such other facilities, is experienced in making, acquiring or holding such commercial loans or providing such other facilities.
Anything herein to the contrary notwithstanding, none of the titles listed on the cover page hereof shall have any powers, duties or responsibilities under this Agreement or any of the other Loan
Documents, except in its capacity, as applicable, as the Administrative Agent, an Arranger, a Lender or an L/C Issuer hereunder.
9.09Administrative Agent May File Proofs of Claim; Credit Bidding.
In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan or L/C Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise:
(a)to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, L/C Obligations and all other Secured Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, the L/C Issuers and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, the L/C Issuers and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders, the L/C Issuers and the Administrative Agent under Sections 2.03(l) and (m), 2.09, 2.10(b) and 11.04) allowed in such judicial proceeding; and
(b)to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and each L/C Issuer to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders and the L/C Issuers, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Sections 2.09, 2.10(b) and 11.04.
Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender or any L/C Issuer any plan of reorganization, arrangement, adjustment or composition affecting the Secured Obligations or the rights of any Lender or any L/C Issuer to authorize the Administrative Agent to vote in respect of the claim of any Lender or any L/C Issuer or in any such proceeding.
The Secured Parties hereby irrevocably authorize the Administrative Agent, at the direction of the Required Lenders, to credit bid all or any portion of the Secured Obligations (including accepting some or all of the Collateral in satisfaction of some or all of the Secured Obligations pursuant to a deed in lieu of foreclosure or otherwise) and in such manner purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral (i) at any sale thereof conducted under the provisions of the Bankruptcy Code of the United States, including under Sections 363, 1123 or 1129 of the Bankruptcy Code of the United States, or any similar Laws in any other jurisdictions to which a Loan Party is subject, or (ii) at any other sale or foreclosure or acceptance of collateral in lieu of debt conducted by (or with the consent or at the direction of) the Administrative Agent (whether by judicial action or otherwise) in accordance with any applicable Law. In connection with any such credit bid and purchase, the Secured Obligations owed to the Secured Parties shall be entitled to be, and shall be, credit bid on a ratable basis (with Secured Obligations with respect to contingent or unliquidated claims receiving contingent interests in the acquired assets on a ratable basis that would vest upon the liquidation of such claims in an amount proportional to the liquidated portion of the contingent claim amount used in allocating the contingent
interests) in the asset or assets so purchased (or in the Equity Interests or debt instruments of the acquisition vehicle or vehicles that are used to consummate such purchase). In connection with any such bid (A) the Administrative Agent shall be authorized to form one or more acquisition vehicles to make a bid, (B) the Administrative Agent shall be authorized to adopt documents providing for the governance of the acquisition vehicle or vehicles (provided, that, any actions by the Administrative Agent with respect to such acquisition vehicle or vehicles, including any disposition of the assets or Equity Interests thereof shall be governed, directly or indirectly, by the vote of the Required Lenders, irrespective of the termination of this Agreement and without giving effect to the limitations on actions by the Required Lenders contained in Section 11.01), and (C) to the extent that Secured Obligations that are assigned to an acquisition vehicle are not used to acquire Collateral for any reason (as a result of another bid being higher or better, because the amount of Secured Obligations assigned to the acquisition vehicle exceeds the amount of debt credit bid by the acquisition vehicle or otherwise), such Secured Obligations shall automatically be reassigned to the Lenders pro rata and the Equity Interests and/or debt instruments issued by any acquisition vehicle on account of the Secured Obligations that had been assigned to the acquisition vehicle shall automatically be cancelled, without the need for any Secured Party or any acquisition vehicle to take any further action.
9.10Collateral and Guaranty Matters.
Each of the Lenders (including in its capacities as a potential Secured Cash Management Bank, a potential Secured Hedge Bank, and a potential Hedge BankSecured Bilateral Letter of Credit L/C Issuer) and each of the L/C Issuers irrevocably authorize the Administrative Agent, at its option and in its discretion:
(a)to release any Lien on any property granted to or held by the Administrative Agent under any Loan Document (i) upon the Facility Termination Date, (ii) that is sold or otherwise disposed of or to be sold or otherwise disposed of as part of or in connection with any sale or other disposition permitted hereunder or under any other Loan Document to a Person that is not a Loan Party, or (iii) if approved, authorized or ratified in writing by the Required Lenders in accordance with Section 11.01;
(b)to subordinate any Lien on any property granted to or held by the Administrative Agent under any Loan Document to the holder of any Lien on such property that is permitted by Section 7.01(c);
(c)to release any Guarantor from its obligations under the Guaranty if such Person ceases to be a Subsidiary as a result of a transaction permitted under the Loan Documents; and
(d)to negotiate, execute, deliver and perform any intercreditor agreement and/or any subordination agreement in respect of any Indebtedness permitted to be incurred pursuant to Section 7.02.
Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guaranty pursuant to this Section 9.10, or to take any other action described above in this Section 9.10. In each case as specified in this Section 9.10, the Administrative Agent will, at the Borrower’s expense, execute and deliver to the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release of such item of Collateral from the assignment and security interest granted under the Collateral Documents or to subordinate its interest in such item, or to release such Guarantor from its obligations
under the Guaranty, in each case in accordance with the terms of the Loan Documents and this Section 9.10.
The Administrative Agent shall not be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of the Administrative Agent’s Lien thereon, or any certificate prepared by any Loan Party in connection therewith, nor shall the Administrative Agent be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral.
9.11Secured Cash Management Agreements and, Secured Hedge Agreements and Secured Bilateral Letters of Credit.
Except as otherwise expressly set forth herein, no Secured Cash Management Bank or, Secured Hedge Bank or Secured Bilateral Letter of Credit L/C Issuer that obtains the benefit of the provisions of Section 8.03, the Guaranty or any Collateral by virtue of the provisions hereof or any Collateral Document shall have any right to notice of any action or to consent to, direct or object to any action hereunder or under any other Loan Document or otherwise in respect of the Collateral (including the release or impairment of any Collateral) (or to notice of or to consent to any amendment, waiver or modification of the provisions hereof or of the Guaranty or any Collateral Document) other than in its capacity as a Lender and, in such case, only to the extent expressly provided in the Loan Documents. Notwithstanding any other provision of this Article IX to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Secured Obligations arising under or with respect to Secured Cash Management Agreements and, Secured Hedge Agreements and Secured Bilateral Letters of Credit, except to the extent expressly provided herein and unless the Administrative Agent has received a Secured Party Designation Notice of such Secured Obligations, together with such supporting documentation as the Administrative Agent may request, from the applicable Cash Management Bank or, the applicable Hedge Bank or the applicable Bilateral Letter of Credit L/C Issuer, as the case may be; provided, that, notwithstanding the foregoing, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Secured Obligations arising under or with respect to Secured Cash Management Agreements and, Secured Hedge Agreements and Secured Bilateral Letters of Credit in the case of a Facility Termination Date.
(a)Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that at least one of the following is and will be true:
(i)such Lender is not using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise) of one or more Benefit Plans with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments, or this Agreement,
(ii)the transaction exemption set forth in one or more PTEs, such as PTE 84–14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95–60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90–1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91–38 (a class
exemption for certain transactions involving bank collective investment funds) or PTE 96–23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement,
(iii)(A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84–14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Letters of Credit, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84–14, and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84–14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement, or
(iv)such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender.
(b)In addition, unless either (1) clause (i) in the immediately preceding clause (a) is true with respect to a Lender or (2) a Lender has provided another representation, warranty and covenant in accordance with clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that the Administrative Agent is not a fiduciary with respect to the assets of such Lender involved in such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, any other Loan Document or any documents related hereto or thereto).
9.13Recovery of Erroneous Payments.
Without limitation of any other provision in this Agreement, if at any time the Administrative Agent makes a payment hereunder in error to any Lender Party, whether or not in respect of an Obligation due and owing by the Borrower at such time, where such payment is a Rescindable Amount, then in any such event, each Lender Party receiving a Rescindable Amount severally agrees to repay to the Administrative Agent forthwith on demand the Rescindable Amount received by such Lender Party in immediately available funds in the currency so received, with interest thereon, for each day from and including the date such Rescindable Amount is received by it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. Each Lender Party irrevocably waives any and all defenses, including any “discharge for value” (under which a creditor might otherwise claim a right to retain funds mistakenly paid by a third party in respect of a debt owed by another) or similar defense to its obligation to return any Rescindable Amount. The Administrative Agent shall inform each Lender Party promptly upon determining that any payment made to such Lender Party comprised, in whole or in part, a Rescindable Amount.
Each Guarantor hereby absolutely and unconditionally, jointly and severally guarantees, as primary obligor and as a guaranty of payment and performance and not merely as a guaranty of collection, prompt payment when due, whether at stated maturity, by required prepayment, upon acceleration, demand or otherwise, and at all times thereafter, of any and all Secured Obligations (for each Guarantor, subject to the proviso in this sentence, its “Guaranteed Obligations”); provided, that, (a) the Guaranteed Obligations of a Guarantor shall exclude any Excluded Swap Obligations with respect to such Guarantor, and (b) the liability of each Guarantor individually with respect to this Guaranty shall be limited to an aggregate amount equal to the largest amount that would not render its obligations hereunder subject to avoidance under Section 548 of the Bankruptcy Code of the United States or any comparable provisions of any applicable state law. Without limiting the generality of the foregoing, the Guaranteed Obligations shall include any such indebtedness, obligations, and liabilities, or portion thereof, which may be or hereafter become unenforceable or compromised or shall be an allowed or disallowed claim under any proceeding or case commenced by or against any Loan Party under any Debtor Relief Laws. The Administrative Agent’s books and records showing the amount of the Obligations shall be admissible in evidence in any action or proceeding, and shall be binding upon each Guarantor, and conclusive for the purpose of establishing the amount of the Secured Obligations. This Guaranty shall not be affected by the illegality, genuineness, validity, regularity or enforceability of the Secured Obligations or any instrument or agreement evidencing any Secured Obligations, or by the existence, validity, enforceability, perfection, non-perfection or extent of any collateral therefor, or by any fact or circumstance relating to the Secured Obligations which might otherwise constitute a defense to the obligations of the Guarantors, or any of them, under this Guaranty, and each Guarantor hereby irrevocably waives any defenses it may now have or hereafter acquire in any way relating to any or all of the foregoing.
Each Guarantor consents and agrees that the Secured Parties may, at any time and from time to time, without notice or demand, and without affecting the enforceability or continuing effectiveness hereof: (a) amend, extend, renew, compromise, discharge, accelerate or otherwise change the time for payment or the terms of the Secured Obligations or any part thereof; (b) take, hold, exchange, enforce, waive, release, fail to perfect, sell, or otherwise dispose of any security for the payment of this Guaranty or any Secured Obligations; (c) apply such security and direct the order or manner of sale thereof as the Administrative Agent, the L/C Issuers and the Lenders in their sole discretion may determine; and (d) release or substitute one or more of any endorsers or other guarantors of any of the Secured Obligations. Without limiting the generality of the foregoing, each Guarantor consents to the taking of, or failure to take, any action which might in any manner or to any extent vary the risks of such Guarantor under this Guaranty or which, but for this provision, might operate as a discharge of such Guarantor.
Each Guarantor waives, to the fullest extent permitted by law: (a) any defense arising by reason of any disability or other defense of the Borrower or any other guarantor, or the cessation from any cause
whatsoever (including any act or omission of any Secured Party) of the liability of the Borrower or any other Loan Party; (b) any defense based on any claim that such Guarantor’s obligations exceed or are more burdensome than those of the Borrower or any other Loan Party; (c) the benefit of any statute of limitations affecting any Guarantor’s liability hereunder; (d) any right to proceed against the Borrower or any other Loan Party, proceed against or exhaust any security for the Secured Obligations, or pursue any other remedy in the power of any Secured Party whatsoever; (e) any benefit of and any right to participate in any security now or hereafter held by any Secured Party; (f) any defense arising by reason of any change in the corporate existence, structure or ownership of any Loan Party; and (g) any and all other defenses or benefits that may be derived from or afforded by applicable Law limiting the liability of or exonerating guarantors or sureties. Each Guarantor, to the fullest extent permitted by law, expressly waives all setoffs and counterclaims and all presentments, demands for payment or performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever with respect to the Secured Obligations, and all notices of acceptance of this Guaranty or of the existence, creation or incurrence of new or additional Secured Obligations.
The obligations of each Guarantor hereunder are those of primary obligor, and not merely as surety, and are independent of the Secured Obligations and the obligations of any other guarantor, and a separate action may be brought against each Guarantor to enforce this Guaranty whether or not the Borrower or any other person or entity is joined as a party.
No Guarantor shall exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Guaranty until all of the Secured Obligations and any amounts payable under this Guaranty have been indefeasibly paid and performed in full (other than contingent indemnification obligations for which no claim has been asserted) and the Commitments and the Facilities are terminated. If any amounts are paid to a Guarantor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Secured Parties and shall forthwith be paid to the Secured Parties to reduce the amount of the Secured Obligations, whether matured or unmatured.
10.06Termination; Reinstatement.
This Guaranty is a continuing and irrevocable guaranty of all Secured Obligations now or hereafter existing and shall remain in full force and effect until the Facility Termination Date. Notwithstanding the foregoing, this Guaranty shall continue in full force and effect or be revived, as the case may be, if any payment by or on behalf of the Borrower or a Guarantor is made, or any of the Secured Parties exercises its right of setoff, in respect of the Secured Obligations and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by any of the Secured Parties in their discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Laws or otherwise, all as if such payment had not been made or such setoff had not occurred and whether or not the Secured Parties are in possession of or have released this Guaranty and regardless of any prior revocation, rescission, termination or reduction. The obligations of each Guarantor under this Section 10.06 shall survive termination of this Guaranty.
If acceleration of the time for payment of any of the Secured Obligations is stayed, in connection with any case commenced by or against a Guarantor or the Borrower under any Debtor Relief Laws, or otherwise, all such amounts shall nonetheless be payable by each Guarantor, jointly and severally, immediately upon demand by the Secured Parties.
Each Guarantor acknowledges and agrees that it has the sole responsibility for, and has adequate means of, obtaining from the Borrower and any other guarantor such information concerning the financial condition, business and operations of the Borrower and any such other guarantor as such Guarantor requires, and that none of the Secured Parties has any duty, and such Guarantor is not relying on the Secured Parties at any time, to disclose to it any information relating to the business, operations or financial condition of the Borrower or any other guarantor (each Guarantor waiving any duty on the part of the Secured Parties to disclose such information and any defense relating to the failure to provide the same).
Each of the Loan Parties hereby appoints the Borrower to act as its agent for all purposes of this Agreement, the other Loan Documents and all other documents and electronic platforms entered into in connection herewith and agrees that (a) the Borrower may execute such documents and provide such authorizations on behalf of such Loan Parties as the Borrower deems appropriate in its sole discretion and each Loan Party shall be obligated by all of the terms of any such document and/or authorization executed on its behalf, (b) any notice or communication delivered by the Administrative Agent, an L/C Issuer or a Lender to the Borrower shall be deemed delivered to each Loan Party, and (c) the Administrative Agent, the L/C Issuers or the Lenders may accept, and be permitted to rely on, any document, authorization, instrument or agreement executed by the Borrower on behalf of each of the Loan Parties.
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.
Each Loan Party that is a Qualified ECP Guarantor at the time the Guaranty or the grant of a Lien under the Loan Documents, in each case, by any Specified Loan Party becomes effective with respect to any Swap Obligation, hereby jointly and severally, absolutely, unconditionally and irrevocably undertakes to provide such funds or other support to each Specified Loan Party with respect to such Swap Obligation as may be needed by such Specified Loan Party from time to time to honor all of its obligations under the Loan Documents in respect of such Swap Obligation (but, in each case, only up to the maximum amount of such liability that can be hereby incurred without rendering such Qualified ECP Guarantor’s obligations and undertakings under this Article X voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations and undertakings of each Qualified ECP Guarantor under this Section 10.11 shall remain in full force and effect until the Secured Obligations have been indefeasibly paid and performed in full (other than contingent indemnification obligations for which no claim has been asserted). Each Loan Party intends this Section 10.11 to constitute, and this Section 10.11 shall be deemed to constitute, a guarantee of the obligations of, and a “keepwell, support, or other agreement” for the benefit of, each Specified Loan Party for all purposes of the Commodity Exchange Act.
No amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by the Borrower or any other Loan Party therefrom, shall be effective unless in writing signed by the Required Lenders (or by the Administrative Agent with the consent of the Required Lenders) and the Borrower or the applicable Loan Party, as the case may be, and acknowledged by the Administrative Agent, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, that, no such amendment, waiver or consent shall:
(a)extend or increase any Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 8.02) without the written consent of such Lender (it being understood and agreed that a waiver of any condition precedent in Section 4.02 or of any Default is not considered an extension of or increase in any Commitment of any Lender);
(b)postpone any date fixed by this Agreement or any other Loan Document for any payment (excluding mandatory prepayments) of principal, interest, fees or other amounts due to any Lender hereunder or under such other Loan Document without the written consent of such Lender entitled to such payment;
(c)reduce the principal of, or the rate of interest specified herein on, any Loan or L/C Disbursement, or (subject to clause (iv) of the final proviso to this Section 11.01) any fees or other amounts payable to any Lender hereunder or under any other Loan Document without the written consent of such Lender entitled to such amount; provided, that, only the consent of the Required Lenders shall be necessary to amend (i) the definition of “Default Rate” or to waive any obligation of the Borrower to pay interest or Letter of Credit Fees at the Default Rate, or (ii) any financial covenant hereunder (or any defined term used therein), even if the effect of such amendment would be to reduce the rate of interest on any Loan or Letter of Credit or to reduce any fee payable hereunder, or (iii) the Consolidated Leverage Ratio (or any defined term used therein), even if the effect of such amendment would be to reduce the rate of interest on any Loan or Letter of Credit or to reduce any fee payable hereunder;
(d)change Section 2.12(f), Section 2.13, Section 8.03 or any other provision hereof relating to the pro rata sharing of payments among the Lenders in a manner that would alter the pro rata sharing of payments required thereby without the written consent of each Lender that is directly and adversely affected thereby;
(e)change (i) any provision of this Section 11.01, or the definition of “Required Lenders,” or any other provision of any Loan Document specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or thereunder or make any determination or grant any consent hereunder or without the written consent of each Lender, or (ii) the definition of “Required Revolving Lenders” without the written consent of each Revolving Lender;
(f)release all or substantially all of the Collateral in any transaction or series of related transactions without the written consent of each Lender;
(g)release all or substantially all of the value of the Guaranty without the written consent of each Lender, except to the extent the release of any Subsidiary from the Guaranty is permitted pursuant to Section 9.10 (in which case such release may be made by the Administrative Agent acting alone);
(h)(i) subordinate, or enter into any amendment, waiver or consent having the effect of subordinating, the Obligations to any other Indebtedness or other obligation, (ii) subordinate, or enter into any amendment, waiver or consent having the effect of subordinating, the Liens securing the Secured Obligations to Liens securing any other Indebtedness or other obligation, in each case, without the written consent of each Lender; or
(i)release the Borrower or permit the Borrower to assign or transfer any of its rights or obligations under this Agreement or the other Loan Documents without the written consent of each Lender;
provided, further, that, notwithstanding anything herein to the contrary: (i) no amendment, waiver or consent shall, unless in writing and signed by the applicable L/C Issuer in addition to the Lenders required above, affect the rights or duties of such L/C Issuer under this Agreement or any Issuer Document relating to any Letter of Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing and signed by the Swingline Lender in addition to the Lenders required above, affect the rights or duties of the Swingline Lender under this Agreement; (iii) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above, affect the rights or duties of the Administrative Agent under this Agreement or any other Loan Document; (iv) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto; (v) no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender, or all Lenders or each affected Lender under a Facility, may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (A) any Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender, and (B) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender, or all Lenders or each affected Lender under a Facility, that by its terms affects any Defaulting Lender disproportionately adversely relative to other affected Lenders shall require the consent of such Defaulting Lender; (vi) each Lender is entitled to vote as such Lender sees fit on any bankruptcy reorganization plan that affects the Loans, and each Lender acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein; (vii) the Required Lenders shall determine whether or not to allow a Loan Party to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Lenders; (viii) in order to implement any Incremental Facility in accordance with Section 2.02(g), this Agreement and any other Loan Document may be amended as set forth in Section 2.02(g); (ix) this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, the Borrower, the other Loan Parties and the relevant lenders providing such additional credit facilities to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Incremental Term Loans and the Revolving Loans and the accrued interest and fees in respect thereof and to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders; (x) if following the Closing Date, the Administrative Agent and the Borrower shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision of the Loan Documents, then the Administrative Agent and the Loan Parties shall be permitted to amend such provision and such amendment shall become effective without any further action or consent of any other
party to any Loan Documents if the same is not objected to in writing by the Required Lenders within five (5) Business Days following receipt of notice thereof; (xi) this Agreement may be amended (or amended and restated) without the consent of any Lender (but with the consent of the Borrower and the Administrative Agent) if, upon giving effect to such amendment (or such amendment and restatement), such Lender shall no longer be a party to this Agreement (as so amended (or amended and restated)), the Commitments of such Lender shall have terminated, such Lender shall have no other commitment or other obligations hereunder and such Lender shall have been paid in full all principal, interest and other amounts owing to it or accrued for its account under this Agreement and the other Loan Documents; (xii) this Agreement or any other Loan Document may be amended as set forth in Section 3.03, including in order to implement any Successor Rate and any Conforming Changes in connection therewith; (xiii) the L/C Commitment of any L/C Issuer may be modified from time to time by agreement between such L/C Issuer and the Borrower and notified to the Administrative Agent; and (xiv) the Administrative Agent will have the right to make Conforming Changes from time to time and any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document, so long as, with respect to any such amendment effected, the Administrative Agent shall post each such amendment implementing such Conforming Changes to the Borrower and the Lenders reasonably promptly after such amendment becomes effective.
11.02Notices; Effectiveness; Electronic Communications.
(a)Notices Generally. Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in Section 11.02(b)), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by fax transmission or e-mail transmission as follows, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:
(i)if to the Borrower or any other Loan Party, the Administrative Agent, Bank of America in its capacity as an L/C Issuer, or the Swingline Lender, to the address, fax number, e-mail address or telephone number specified for such Person on Schedule 1.01(a); and
(ii)if to any other Lender (including in such Lender’s capacity as an L/C Issuer), to the address, fax number, e-mail address or telephone number specified in its Administrative Questionnaire (including, as appropriate, notices delivered solely to the Person designated by a Lender on its Administrative Questionnaire then in effect for the delivery of notices that may contain material non-public information relating to the Borrower).
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 fax transmission 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 Section 11.02(b) shall be effective as provided in Section 11.02(b).
(b)Electronic Communications. Notices and other communications to the Administrative Agent, the Lenders, the Swingline Lender and the L/C Issuers hereunder may be delivered or furnished by electronic communication (including e-mail, FPML messaging and
Internet or intranet websites) pursuant to an electronic communications agreement (or such other procedures approved by the Administrative Agent in its sole discretion); provided, that, the foregoing shall not apply to notices to any Lender, the Swingline Lender or any L/C Issuer pursuant to Article II if such Lender, the Swingline Lender or such L/C Issuer, as applicable, has notified the Administrative Agent that it is incapable of receiving notices under Article II by electronic communication. The Administrative Agent, the Swingline Lender, any L/C Issuer or the Borrower may each, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it, provided that approval of such procedures may be limited to particular notices or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgment from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), and (ii) notices and other communications posted to an Internet or intranet website shall be deemed received by the intended recipient 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 address or other written acknowledgement) indicating that such notice or communication is available and identifying the website address therefor; provided, that, for both clauses (i) and (ii), if such notice 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.
(c)The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to the Borrower, any Lender, any L/C Issuer or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of the Borrower’s, any other Loan Party’s or the Administrative Agent’s transmission of Borrower Materials or notices through the Platform, any other electronic platform or electronic messaging service, or through the Internet, except to the extent such losses, claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Agent Party.
(d)Change of Address, Etc. Each of the Borrower, the Administrative Agent, each L/C Issuer and the Swingline Lender may change its address, fax number or telephone number or e-mail address for notices and other communications hereunder by notice to the other parties hereto. Each Lender may change its address, fax number or telephone number or e-mail address for notices and other communications hereunder by notice to the Borrower, the Administrative Agent, the L/C Issuers and the Swingline Lender. In addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that the Administrative Agent has on record (i) an effective address, contact name, telephone number, fax number and e-mail address to which notices and other communications may be sent, and (ii) accurate wire instructions for such
Lender. Furthermore, each Public Lender agrees to cause at least one (1) individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable Law, including United States federal and state securities Laws, to make reference to Borrower Materials that are not made available through the “Public Side Information” portion of the Platform and that may contain material non-public information with respect to the Borrower or its securities for purposes of United States federal or state securities laws.
(e)Reliance by Administrative Agent, L/C Issuers and Lenders. The Administrative Agent, the L/C Issuers and the Lenders shall be entitled to rely and act upon any notices (including telephonic or electronic notices, Loan Notices, Letter of Credit Applications, Notices of Loan Prepayment, and Swingline Loan Notices) purportedly given by or on behalf of any Loan Party even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. The Loan Parties shall indemnify the Administrative Agent, each L/C Issuer, each Lender and the Related Parties of each of them from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of a Loan Party. All telephonic notices to and other telephonic communications with the Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto hereby consents to such recording.
11.03No Waiver; Cumulative Remedies; Enforcement.
No failure by any Lender, any L/C Issuer or the Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder or under any other Loan Document shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder or under any other Loan Document 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 Loan Document, are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.
Notwithstanding anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents against the Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in accordance with Section 8.02 for the benefit of all the Lenders and the L/C Issuers; provided, that, the foregoing shall not prohibit (a) the Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan Documents, (b) any L/C Issuer or the Swingline Lender from exercising the rights and remedies that inure to its benefit (solely in its capacity as an L/C Issuer or the Swingline Lender, as the case may be) hereunder and under the other Loan Documents, (c) any Lender from exercising setoff rights in accordance with Section 11.08 (subject to the terms of Section 2.13), or (d) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Loan Party under any Debtor Relief Law; provided, further, that, if at any time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents, then (i) the Required Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant to Section 8.02, and (ii) in addition to the matters set forth in clauses (b), (c) and (d) of the preceding proviso and subject to Section 2.13, any Lender may, with the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders.
11.04Expenses; Indemnity; Damage Waiver.
(a)Costs and Expenses. The Loan Parties shall pay (i) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent and its Affiliates (limited, in the case of legal counsel, to the reasonable and documented fees, charges and disbursements of one primary counsel to the Administrative Agent and, if reasonably necessary, one local counsel for the Administrative Agent in each relevant jurisdiction and one specialty counsel for the Administrative Agent in each relevant specialty (and, solely in the case of an actual or potential conflict of interest of any of the foregoing counsel, one additional primary, local or specialty counsel, as the case may be, to the affected persons similarly situated and taken as a whole)) in connection with the syndication of the credit facilities provided for herein, the preparation, negotiation, execution, delivery and administration of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable and documented out-of-pocket expenses incurred by any L/C Issuer in connection with the issuance, amendment, renewal, reinstatement or extension of any Letter of Credit or any demand for payment thereunder, and (iii) all documented out-of-pocket expenses incurred by the Administrative Agent, any Lender or any L/C Issuer (including the fees, charges and disbursements of counsel for the Administrative Agent, any Lender, or any L/C Issuer), in connection with the enforcement or protection of its rights (A) in connection with this Agreement and the other Loan Documents, including its rights under this Section 11.04, or (B) in connection with Loans made or Letters of Credit issued hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b)Indemnification by the Loan Parties. The Loan Parties shall indemnify the Administrative Agent (and any sub-agent thereof), each Arranger, each Lender and each L/C Issuer, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including the reasonable fees, charges and disbursements of any counsel for any Indemnitee (provided, that, with respect to the reasonable fees, charges and disbursements of counsel, such indemnification shall be limited to the reasonable and documented out-of-pocket fees, disbursements and other charges of one primary counsel for all Indemnitees, taken as a whole, and, if reasonably necessary, a single local counsel for all Indemnitees, taken as a whole, in each relevant jurisdiction and a single specialty counsel for all Indemnitees, taken as a whole, with respect to each relevant specialty, and in the case of an actual or perceived conflict of interest, one additional primary, local or specialty counsel, as the case may be to the affected Indemnitees similarly situated and taken as a whole)) incurred by any Indemnitee or asserted against any Indemnitee by any Person (including the Borrower or any other Loan Party) arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby (including any Indemnitee’s reliance on any Communication executing using an Electronic Signature or in the form of an Electronic Record), the performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby, or, in the case of the Administrative Agent (and any sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other Loan Documents (including in respect of any matters addressed in Section 3.01), (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by an L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or Release of Hazardous Materials on or from any property owned,
leased or operated by a Loan Party or any of its Subsidiaries, or any Environmental Liability related in any way to a Loan Party or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower or any other Loan Party, and regardless of whether any Indemnitee is a party thereto, IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF THE INDEMNITEE; provided, that, such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee. Without limiting the provisions of Section 3.01(d), this Section 11.04(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.
(c)Reimbursement by Lenders. To the extent that the Loan Parties for any reason fail to indefeasibly pay any amount required under Section 11.04(a) or Section 11.04(b) to be paid by it to the Administrative Agent (or any sub-agent thereof), any L/C Issuer, the Swingline Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent), such L/C Issuer, the Swingline Lender or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought based on each Lender’s share of the Total Credit Exposure at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender), such payment to be made severally among them based on such Lender’s Applicable Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought); provided, that, the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent), such L/C Issuer or the Swingline Lender in its capacity as such, or against any Related Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent), such L/C Issuer or the Swingline Lender in connection with such capacity. The obligations of the Lenders under this Section 11.04(c) are subject to the provisions of Section 2.12(d).
(d)Waiver of Consequential Damages, Etc. To the fullest extent permitted by applicable Law, no Loan Party shall assert, and each Loan Party hereby waives, and acknowledges that no other Person shall have, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof. No Indemnitee referred to in Section 11.04(b) shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed to such unintended recipients by such Indemnitee through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby, other than for direct or actual damages resulting from the gross negligence or willful misconduct of such Indemnitee as determined by a final and nonappealable judgment of a court of competent jurisdiction.
(e)Payments. All amounts due under this Section 11.04 shall be payable not later than ten (10) Business Days after demand therefor.
(f)Survival. The agreements in this Section 11.04 and the indemnity provisions of Section 11.02(e) shall survive the resignation of the Administrative Agent, any L/C Issuer and the Swingline Lender, the replacement of any Lender, and the Facility Termination Date.
To the extent that any payment by or on behalf of the Borrower is made to the Administrative Agent, any L/C Issuer or any Lender, or the Administrative Agent, any L/C Issuer or any Lender 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 aside or required (including pursuant to any settlement entered into by the Administrative Agent, such L/C Issuer or such Lender 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 (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender and each L/C Issuer severally agrees to pay to the Administrative Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the Federal Funds Rate from time to time in effect. The obligations of the Lenders and the L/C Issuers under clause (b) of the preceding sentence shall survive the payment in full of the Obligations and the termination of this Agreement.
(a)Successors and Assigns Generally. The provisions of this Agreement and the other Loan Documents shall be binding upon and inure to the benefit of the parties hereto and thereto and their respective successors and assigns permitted hereby, except neither the Borrower nor any other Loan Party may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of Section 11.06(b), (ii) by way of participation in accordance with the provisions of Section 11.06(d), or (iii) by way of pledge or assignment of a security interest subject to the restrictions of Section 11.06(e) (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in Section 11.06(d) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the L/C Issuers and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b)Assignments by Lenders. Any Lender may at any time assign to one or more assignees all or a portion of its rights and obligations under this Agreement and the other Loan Documents (including all or a portion of its Commitment(s) and the Loans (including for purposes of this Section 11.06(b), participations in L/C Obligations and in Swingline Loans) at the time owing to it); provided, that, any such assignment shall be subject to the following conditions:
(i)Minimum Amounts.
(A)In the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment under any Facility and/or the Loans at the
time owing to it (in each case with respect to any Facility) or contemporaneous assignments to related Approved Funds (determined after giving effect to such assignments) that equal at least the amount specified in Section 11.06(b)(i)(B) in the aggregate or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned.
(B)In any case not described in Section 11.06(b)(i)(A), the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the Commitment is not then in effect, the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment, determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date, shall not be less than $5,000,000, in the case of any assignment in respect of the Revolving Facility, or $1,000,000, in the case of any assignment in respect of any Incremental Term Facility, unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed).
(ii)Proportionate Amounts. Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement and the other Loan Documents with respect to the Loans and/or the Commitment assigned, except that this Section 11.06(b)(ii) shall not (A) apply to the Swingline Lender’s rights and obligations in respect of Swingline Loans, or (B) prohibit any Lender from assigning all or a portion of its rights and obligations among separate Facilities on a non-pro rata basis.
(iii)Required Consents. No consent shall be required for any assignment except to the extent required by Section 11.06(b)(i)(B) and, in addition:
(A)the consent of the Borrower (such consent not to be unreasonably withheld or delayed) shall be required unless (1) an Event of Default has occurred and is continuing at the time of such assignment, or (2) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund; provided, that, the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received written notice thereof;
(B)the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments in respect of (1) any Revolving Commitment if such assignment is to a Person that is not a Lender with a Revolving Commitment, an Affiliate of such Lender or an Approved Fund with respect to such Lender, or (2) any Incremental Term Loan to a Person that is not a Lender, an Affiliate of a Lender or an Approved Fund; and
(C)the consent of each L/C Issuer and the Swingline Lender shall be required for any assignment in respect of the Revolving Facility.
(iv)Assignment and Assumption. The parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together
with a processing and recordation fee in the amount of $3,500; provided, that, the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.
(v)No Assignment to Certain Persons. No such assignment shall be made (A) to the Borrower or any of the Borrower’s Affiliates or Subsidiaries, (B) to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (B), or (C) to a natural Person (or a holding company, investment vehicle or trust for, or owned and operated by or for the primary benefit of one or more natural Persons).
(vi)Certain Additional Payments. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (A) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent, any L/C Issuer or any Lender hereunder (and interest accrued thereon), and (B) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swingline Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable Law without compliance with the provisions of this Section 11.06(b)(vi), then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Subject to acceptance and recording thereof by the Administrative Agent pursuant to Section 11.06(c), from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 3.01, 3.04, 3.05 and 11.04 with respect to facts and circumstances occurring prior to the effective date of such assignment); provided, that, except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender. Upon request, the Borrower (at its expense) shall execute and deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 11.06(b) shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 11.06(d).
(c)Register. The Administrative Agent, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), shall maintain at the Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it (or the equivalent thereof in electronic form) and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and stated interest) of the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive, absent manifest error, and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower and any Lender (with respect to such Lender’s interest only), at any reasonable time and from time to time upon reasonable prior notice.
(d)Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural Person, or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of one or more natural Persons, a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swingline Loans) owing to it); provided, that, (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and (iii) the Borrower, the Administrative Agent, the Lenders and the L/C Issuers shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. For the avoidance of doubt, each Lender shall be responsible for the indemnity under Section 11.04(c) without regard to the existence of any participations.
Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided, that, such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in the first proviso to Section 11.01 that affects such Participant. The Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 (subject to the requirements and limitations therein, including the requirements under Section 3.01(f) (it being understood that the documentation required under Section 3.01(f) shall be delivered to the Lender who sells the participation)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 11.06(b); provided, that, such Participant (A) agrees to be subject to the provisions of Sections 3.06 and 11.13 as if it were an assignee under Section 11.06(b), and (B) shall not be entitled to receive any greater payment under Sections 3.01 or 3.04, with respect to any participation, than the Lender 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 participation. Each Lender that sells a participation agrees, at the Borrower’s request and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section 3.06 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 11.08 as though it were a Lender; provided, that, such Participant agrees to be subject to Section 2.13 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal
amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided, that, no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(e)Certain Pledges. Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Note or Notes, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided, that, no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(f)Resignation as L/C Issuer or Swingline Lender after Assignment. Notwithstanding anything to the contrary contained herein, if at any time any Lender assigns all of its Revolving Commitment and Revolving Loans pursuant to Section 11.06(b), such Lender may, (i) upon thirty (30) days’ notice to the Administrative Agent, the Borrower and the Lenders, resign as an L/C Issuer, and/or (ii) upon thirty (30) days’ notice to the Borrower, resign as the Swingline Lender. In the event of any such resignation as an L/C Issuer or the Swingline Lender, the Borrower shall be entitled to appoint from among the Lenders a successor L/C Issuer or Swingline Lender hereunder; provided, that, no failure by the Borrower to appoint any such successor shall affect the resignation of such Lender as an L/C Issuer or the Swingline Lender, as the case may be. If a Lender resigns as an L/C Issuer pursuant to this Section 11.06(f), it shall retain all the rights, powers, privileges and duties of an L/C Issuer hereunder with respect to all Letters of Credit issued by it outstanding as of the effective date of its resignation as an L/C Issuer and all L/C Obligations with respect thereto (including the right to require the Lenders to make Revolving Loans that are Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(f)). If Bank of America resigns as the Swingline Lender, it shall retain all the rights of the Swingline Lender provided for hereunder with respect to Swingline Loans made by it and outstanding as of the effective date of such resignation, including the right to require the Lenders to make Revolving Loans that are Base Rate Loans or fund risk participations in outstanding Swingline Loans pursuant to Section 2.04(c). Upon the appointment of a successor L/C Issuer and/or Swingline Lender, (A) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer or Swingline Lender, as the case may be, and (B) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to the retiring L/C Issuer to effectively assume the obligations of such retiring L/C Issuer with respect to such Letters of Credit.
11.07Treatment of Certain Information; Confidentiality.
(a)Treatment of Certain Information. Each of the Administrative Agent, the Lenders and the L/C Issuers agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (i) to its Affiliates, its auditors and its Related
Parties (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (ii) 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), (iii) to the extent required by applicable Laws or regulations or by any subpoena or similar legal process, in which case the Administrative Agent, such Lender, or such L/C Issuer, as applicable, shall notify the Borrower promptly prior to such disclosure to the extent practicable and not prohibited by Law, (iv) to any other party hereto, (v) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (vi) subject to an agreement containing provisions substantially the same as those of this Section 11.07, to (A) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights and obligations under this Agreement or any Eligible Assignee invited to be a Lender pursuant to Section 2.02(g), or (B) any actual or prospective party (or its Related Parties) to any swap, derivative or other transaction under which payments are to be made by reference to the Borrower and its obligations, this Agreement or payments hereunder, (vii) on a confidential basis to (A) any rating agency in connection with rating the Borrower or its Subsidiaries or the credit facilities provided hereunder, (B) the provider of any Platform or other electronic delivery service used by the Administrative Agent, any L/C Issuer and/or the Swingline Lender to deliver Borrower Materials or notices to the Lenders, or (C) the CUSIP Service Bureau or any similar agency in connection with the application, issuance, publishing and monitoring of CUSIP numbers or other market identifiers with respect to the credit facilities provided hereunder, (viii) with the consent of the Borrower, (ix) to the extent such Information (A) becomes publicly available other than as a result of a breach of this Section 11.07, or (B) becomes available to the Administrative Agent, any Lender, any L/C Issuer or any of their respective Affiliates on a nonconfidential basis from a source other than the Borrower, or (x) to the extent such Information is independently discovered or developed by a party hereto without utilizing any Information received from the Borrower or violating the terms of this Section 11.07. For purposes of this Section 11.07, “Information” means all information received from the Borrower or any Subsidiary relating to the Borrower or any Subsidiary or any of their respective businesses, other than any such information that is available to the Administrative Agent, any Lender or any L/C Issuer on a nonconfidential basis prior to disclosure by the Borrower or any Subsidiary; provided, that, in the case of information received from the Borrower or any Subsidiary after the Closing Date, 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 11.07 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. In addition, the Administrative Agent and the Lenders may disclose the existence of this Agreement and information about this Agreement to market data collectors, similar service providers to the lending industry and service providers to the Administrative Agent and the Lenders in connection with the administration of this Agreement, the other Loan Documents and the Commitments.
(b)Non-Public Information. Each of the Administrative Agent, the Lenders and the L/C Issuers acknowledges that (i) the Information may include material non-public information concerning a Loan Party or a Subsidiary, as the case may be, (ii) it has developed compliance procedures regarding the use of material non-public information, and (iii) it will handle such material non-public information in accordance with applicable Law, including United States federal and state securities Laws.
(c)Press Releases. The Loan Parties and their Affiliates agree that they will not in the future issue any press releases or other public disclosure using the name of the Administrative Agent or any Lender or their respective Affiliates or referring to this Agreement or any of the Loan Documents without the prior written consent of the Administrative Agent, unless (and only to the extent that) the Loan Parties or such Affiliate is required to do so under law and then, in any event the Loan Parties or such Affiliate will consult with such Person before issuing such press release or other public disclosure.
(d)Customary Advertising Material. Without the prior written consent of the Borrower, neither the Administrative Agent nor any Lender shall publish any advertising material relating to the transactions contemplated hereby, including by using the name, product photographs, logo or trademark of the Loan Parties, to the extent such advertising material contains information that is not otherwise publicly available at the time such material is published (it being understood and agreed that neither the Administrative Agent nor any Lender shall be required to obtain the Borrower’s prior written consent to publish customary advertising material relating to the transactions contemplated hereby if such material contains information which is otherwise publicly available at the time such material is published).
If an Event of Default shall have occurred and be continuing, each Lender, each L/C Issuer 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 Lender, such L/C Issuer or any such Affiliate to or for the credit or the account of the Borrower or any other Loan Party against any and all of the obligations of the Borrower or such Loan Party now or hereafter existing under this Agreement or any other Loan Document to such Lender or such L/C Issuer or their respective Affiliates, irrespective of whether or not such Lender, such L/C Issuer or Affiliate shall have made any demand under this Agreement or any other Loan Document and although such obligations of the Borrower or such Loan Party may be contingent or unmatured, secured or unsecured, or are owed to a branch, office or Affiliate of such Lender or such L/C Issuer different from the branch, office or Affiliate holding such deposit or obligated on such indebtedness; provided, that, in the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.15, and pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent, the L/C Issuers and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Secured Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender, each L/C Issuer and their respective Affiliates under this Section 11.08 are in addition to other rights and remedies (including other rights of setoff) that such Lender, such L/C Issuer or their respective Affiliates may have. Each Lender and each L/C Issuer agrees to notify the Borrower and the Administrative Agent promptly after any such setoff and application; provided, that, the failure to give such notice shall not affect the validity of such setoff and application.
11.09Interest Rate Limitation.
Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If the Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the
principal of the Loans or, if it exceeds such unpaid principal, refunded to the Borrower. In determining whether the interest contracted for, charged, or received by the Administrative Agent or a Lender 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.
11.10Integration; Effectiveness.
This Agreement, the other Loan Documents, and any separate letter agreements with respect to fees payable to the Administrative Agent or any L/C Issuer, constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Except as provided in Section 4.012 of the Third Amendment, this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
11.11Survival of Representations and Warranties.
All representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by the Administrative Agent and each Lender, regardless of any investigation made by the Administrative Agent or any Lender or on their behalf and notwithstanding that the Administrative Agent or any Lender may have had notice or knowledge of any Default at the time of any Credit Extension, and shall continue in full force and effect as long as any Loan or any other Obligation hereunder (other than contingent indemnification obligations for which no claim has been asserted) shall remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.
If any provision of this Agreement or the other Loan 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 Loan 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. Without limiting the foregoing provisions of this Section 11.12, if and to the extent that the enforceability of any provisions in this Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in good faith by the Administrative Agent, the applicable L/C Issuer or the Swingline Lender, as applicable, then such provisions shall be deemed to be in effect only to the extent not so limited.
If the Borrower is entitled to replace a Lender pursuant to the provisions of Section 3.06, or if any Lender is a Defaulting Lender or a Non-Consenting Lender, then, in each case, the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 11.06), all of its interests, rights (other than its existing rights to payments
pursuant to Sections 3.01 and 3.04) and obligations under this Agreement and the related Loan Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided, that:
(a)the Borrower shall have paid to the Administrative Agent the assignment fee (if any) specified in Section 11.06(b);
(b)such Lender shall have received payment of an amount equal to one hundred percent (100%) of the outstanding principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 3.05) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts);
(c)in the case of any such assignment resulting from a claim for compensation under Section 3.04 or payments required to be made pursuant to Section 3.01, such assignment will result in a reduction in such compensation or payments thereafter;
(d)such assignment does not conflict with applicable Laws; and
(e)in the case of an assignment resulting from a Lender becoming a Non-Consenting Lender, the applicable assignee shall have consented to the applicable amendment, waiver or consent.
A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply.
Each party hereto agrees that (a) an assignment required pursuant to this Section 11.13 may be effected pursuant to an Assignment and Assumption executed by the Borrower, the Administrative Agent and the assignee, and (b) the Lender required to make such assignment need not be a party thereto in order for such assignment to be effective and shall be deemed to have consented to an be bound by the terms thereof; provided, that, following the effectiveness of any such assignment, the other parties to such assignment agree to execute and deliver such documents necessary to evidence such assignment as reasonably requested by the applicable Lender; provided, further, that, any such documents shall be without recourse to or warranty by the parties thereto.
Notwithstanding anything in this Section 11.13 to the contrary, (a) no Lender that acts as an L/C Issuer may be replaced hereunder at any time it has any Letter of Credit outstanding unless arrangements satisfactory to such Lender (including the furnishing of a backstop letter of credit in form and substance, and issued by an issuer, reasonably satisfactory to such L/C Issuer or the depositing of Cash Collateral into a Cash Collateral account in amounts and pursuant to arrangements reasonably satisfactory to such L/C Issuer) have been made with respect to such outstanding Letter of Credit, and (b) the Lender that acts as the Administrative Agent may not be replaced hereunder except in accordance with the terms of Section 9.06.
11.14Governing Law; Jurisdiction; Etc.
(a)GOVERNING LAW. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (EXCEPT, AS TO ANY OTHER LOAN DOCUMENT, AS EXPRESSLY SET FORTH THEREIN) AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON,
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT (EXCEPT, AS TO ANY OTHER LOAN DOCUMENT, AS EXPRESSLY SET FORTH THEREIN) AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(b)SUBMISSION TO JURISDICTION. THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT IT WILL NOT COMMENCE ANY ACTION, LITIGATION OR PROCEEDING OF ANY KIND OR DESCRIPTION, WHETHER IN LAW OR EQUITY, WHETHER IN CONTRACT OR IN TORT OR OTHERWISE, AGAINST THE ADMINISTRATIVE AGENT, ANY LENDER, ANY L/C ISSUER, OR ANY RELATED PARTY OF THE FOREGOING IN ANY WAY RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS RELATING HERETO OR THERETO, IN ANY FORUM OTHER THAN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE JURISDICTION OF SUCH COURTS AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION, LITIGATION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION, LITIGATION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR ANY L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
(c)WAIVER OF VENUE. THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN SECTION 11.14(b). THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
(d)SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 11.02. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (a) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (b) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 11.15.
Each Loan Party (a “Subordinating Loan Party”) hereby subordinates the payment of all obligations and indebtedness of any other Loan Party owing to it, whether now existing or hereafter arising, including but not limited to any obligation of any such other Loan Party to the Subordinating Loan Party as subrogee of the Secured Parties or resulting from such Subordinating Loan Party’s performance under the Guaranty, to the indefeasible payment in full in cash of all Obligations. If the Secured Parties so request, any such obligation or indebtedness of any such other Loan Party to the Subordinating Loan Party shall be enforced and performance received by the Subordinating Loan Party as trustee for the Secured Parties and the proceeds thereof shall be paid over to the Secured Parties on account of the Secured Obligations, but without reducing or affecting in any manner the liability of the Subordinating Loan Party under this Agreement. Without limitation of the foregoing, so long as no Default has occurred and is continuing, the Loan Parties may make and receive payments with respect to Intercompany Debt; provided, that, in the event that any Loan Party receives any payment of any Intercompany Debt at a time when such payment is prohibited by this Section 11.16, such payment shall be held by such Loan Party, in trust for the benefit of, and shall be paid forthwith over and delivered, upon written request, to the Administrative Agent.
11.17No Advisory or Fiduciary Responsibility.
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 Loan Document), the Borrower and each other Loan Party acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (a)(i) the arranging and other services regarding this Agreement provided by the Administrative Agent, each Arranger, each Lender, and their respective Affiliates are arm’s-length commercial transactions between the Borrower, each other Loan Party and their respective Affiliates, on the one hand, and the Administrative Agent, each Arranger, each Lender, and their respective Affiliates, on the other hand, (ii) each of the Borrower and the other Loan Parties has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (iii) the Borrower and each other Loan Party is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (b)(i) the Administrative Agent, each Arranger, each Lender, and each of their respective Affiliates 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 Borrower, any other Loan Party or any of their respective Affiliates, or any other Person, and (ii) none of the Administrative Agent, any Arranger, any Lender, or any of their respective Affiliates has any obligation to the Borrower, any other Loan Party or any of their respective Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (c) the Administrative Agent, each Arranger, and each
Lender may be engaged in a broad range of transactions that involve interests that differ from those of the Borrower, the other Loan Parties and their respective Affiliates, and none of the Administrative Agent, any Arranger, any Lender, or any of their respective Affiliates has any obligation to disclose any of such interests to the Borrower, any other Loan Party or any of their respective Affiliates. To the fullest extent permitted by law, each of the Borrower and each other Loan Party hereby waives and releases any claims that it may have against the Administrative Agent, any Arranger, any Lender, or any of their respective Affiliates with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transactions contemplated hereby.
This Agreement, any other Loan Document, and any other document, amendment, approval, consent, information, notice, certificate, request, statement, disclosure or authorization related to this Agreement or any other Loan Document (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 Loan Party, the Administrative Agent, and each Lender Party agrees that any Electronic Signature on or associated with any Communication shall be valid and binding on such Person 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 such Person enforceable against such Person 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 Section 11.18 may include use or acceptance of a manually signed paper Communication which has been converted into electronic form (such as scanned into .pdf), or an electronically signed Communication converted into another format, for transmission, delivery and/or retention. The Administrative Agent and each of the Lender Parties may, at its option, create one or more copies of any Communication in the form of an imaged Electronic Record (each, an “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, none of the Administrative Agent, the Swingline Lender or any L/C Issuer is under any obligation to accept an Electronic Signature in any form or in any format unless expressly agreed to by such Person pursuant to procedures approved by it; provided, that, without limiting the foregoing, (a) to the extent the Administrative Agent, the Swingline Lender or such L/C Issuer has agreed to accept such Electronic Signature, the Administrative Agent and each of the Lender Parties shall be entitled to rely on any such Electronic Signature purportedly given by or on behalf of any Loan Party and/or any Lender Party without further verification and regardless of the appearance or form of such Electronic Signature, and (b) upon the request of the Administrative Agent or any Lender Party, any Communication executed using an Electronic Signature shall be promptly followed by a manually executed counterpart.
None of the Administrative Agent, the Swingline Lender or any L/C Issuer shall be responsible for or have any duty to ascertain or inquire into the sufficiency, validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document (including, for the avoidance of doubt, in connection with the Administrative Agent’s, the Swingline Lender’s or such L/C Issuer’s reliance on any Electronic Signature transmitted by telecopy, emailed .pdf or any other electronic means). The Administrative Agent, the Swingline Lender and each L/C Issuer shall be entitled to rely on, and shall incur no liability under or in respect of this Agreement or any other Loan Document by acting upon, any Communication or any statement made to it orally or by telephone and believed by it to be
genuine and signed or sent or otherwise authenticated (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the maker thereof).
Each Loan Party and each Lender Party hereby waives (a) any argument, defense or right to contest the legal effect, validity or enforceability of this Agreement or any other Loan Document based solely on the lack of paper original copies of this Agreement or such other Loan Document, and (b) any claim against the Administrative Agent and each Lender Party for any liabilities arising solely from the Administrative Agent’s and/or such Lender Party’s reliance on or use of Electronic Signatures, including any liabilities arising as a result of the failure of the Loan Parties to use any available security measures in connection with the execution, delivery or transmission of any Electronic Signature.
Each Lender that is subject to the PATRIOT Act, each L/C Issuer and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower and the other Loan Parties that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “PATRIOT Act”), it is required to obtain, verify and record information that identifies the Borrower and each other Loan Party, which information includes the name and address of each such Person and other information that will allow such Lender, such L/C Issuer or the Administrative Agent, as applicable, to identify each such Person in accordance with the PATRIOT Act. The Loan Parties agree to, promptly following a request by the Administrative Agent, any L/C Issuer or any Lender, provide all such other documentation and information that the Administrative Agent, such L/C Issuer or such Lender 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 and the Beneficial Ownership Regulation.
11.20Acknowledgement and Consent to Bail-In of Affected Financial Institutions.
Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Affected Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the Write-Down and Conversion Powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by: (a) the application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an Affected Financial Institution; and (b) the effects of any Bail-In Action on any such liability, including, if applicable, (i) a reduction in full or in part or cancellation of any such liability, (ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document, or (iii) the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of the applicable Resolution Authority.
11.21Acknowledgement Regarding Any Supported QFCs.
To the extent that the Loan Documents provide support, through a guarantee or otherwise, for any Swap Contract or any other agreement or instrument that is a QFC (such support, “QFC Credit Support”, and each such QFC, a “Supported QFC”), the parties acknowledge and agree that, with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the
regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States), in the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
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508401890.2
Administrative Agent’s Office; Certain Addresses for Notice
If to the Borrower or another Loan Party:
AeroVironment, Inc.
900 Innovators Way
Simi Valley, CA 93065
Attention: Melissa Brown, VP, General Counsel & Corporate Secretary
Phone: +1 (805) 520-8350 ext. 1369
Email: corporatesecretary@avinc.com
Attention: Kevin McDonnell, Senior VP, Chief Financial Officer
Phone: + (805) 520-8350 ext. 1932
Email: mcdonellk@avinc.com
If to the Administrative Agent:
Administrative Agent’s Office (for payments, advances, rates, lender requests):
Bank of America, N.A.
900 W. Trade Street
Mail Code: NC1-026-06-04
Charlotte, North Carolina 28255-0001
Attention: Patricia Santos
Telephone: 980.387.3794
Email: patricia.santos@bofa.com and ecredit_dedicated@bofa.com
Wire Instructions:
Bank of America, N.A., NY
ABA#: 026009593
Account Name: SLC Operations
Account No.: 1366072250600
Ref: AeroVironment Inc.
Other Notices and Financial Reporting as Administrative Agent (for financials, communications):
Bank of America, N.A.
Agency Management
540 W. Madison Street
Mail Code: IL4-540-22-29
Chicago, Illinois 60601
Attention: Rose Thomas
Telephone: 312.828.3417
Telecopier: 877.206.8413
Email: rose.thomas2@bofa.com
With a copy to:
508401890.2
Bank of America, N.A.
Agency Management
540 W. Madison Street
Mail Code: IL4-540-22-29
Chicago, Illinois 60601
Attention: Gerund N. Diamond
Telephone: 312.992.8588
Telecopier: 312.453.3635
Email: gerund.diamond@bofa.com
If to Bank of America in its capacity as an L/C Issuer:
Bank of America Trade Operations
Mail Code: PA6-580-02-30
1 Fleet Way
Scranton, Pennsylvania 18507
Telephone: 570.496.9619
Telecopier: 800.755.8740
Email: tradeclientserviceteamus@bofa.com
508401890.2
Schedule 1.01(b)
Commitments and Applicable Percentages; L/C Commitments; Swingline Commitment
Lender | Revolving Commitment | Applicable Percentage of Revolving Facility |
Bank of America, N.A. | $56,666,666.67 | 28.333333334% |
JPMorgan Chase Bank, N.A. | $56,666,666.67 | 28.333333334% |
U.S. Bank National Association | $56,666,666.66 | 28.333333334% |
Citibank, N.A. | $30,000,000.00 | 15.000000000% |
Total | $200,000,000.00 | 100.000000000% |
Note: Applicable Percentage amounts in the table above are subject to rounding to nine (9) decimal places.
L/C Issuer | L/C Commitment |
Bank of America, N.A. | $25,000,000.00 |
Swingline Lender | Swingline Commitment |
Bank of America, N.A. | $10,000,000.00 |
508401890.2
Existing Letters of Credit
L/C Number | L/C Issuer | Expiry Date | Beneficiary | Letter of Credit Amount |
68177877 | Bank of America, N.A. | 04/30/2025 | Banque Internationale Arabe de Tunisie | $75,898.00 |
68184891 | Bank of America, N.A. | 12/31/2024 | Banco Nacional del Ejército, Fuerza Aérea y Armada, S.N.C | $567,900.00 |
68198985 | Bank of America, N.A. | 09/15/2027 | Riyad Bank | $2,133,334.00 |
68181376 | Bank of America, N.A. | 07/31/2025 | Intesa SanPaolo | $742,950.00 |
68183689 | Bank of America, N.A. | 12/31/2024 | Riyad Bank | $394,221.00 |
68197239 | Bank of America, N.A. | 11/30/2024 | Intesa SanPaolo | $750,000.00 |
68183405 | Bank of America, N.A. | 02/14/2025 | Albaraka Türk Participation Bank | $39,410.00 |
68145318 | Bank of America, N.A. | 02/28/2025 | Intesa SanPaolo | $716,625.00 |
68173818 | Bank of America, N.A. | 11/30/2024 | Intesa SanPaolo | $159,225.00 |
68144383 | Bank of America, N.A. | 12/31/2024 | Intesa SanPaolo | $63,000.00 |
68175186 | Bank of America. N.A. | 02/28/2025 | Saudi Awwal Bank | $1,517,689.00 |
68170562 | Bank of America, N.A. | 03/31/2025 | Albaraka Türk Participation Bank | $45,000.00 |
68197537 | Bank of America, N.A. | 08/02/2025 | National Bank of Kuwait | $130,000.00 |
NUSCGS019332 | JPMorgan Chase Bank, N.A. | 09/30/2025 | National Bank of Egypt | $460,000.00 |
68172290 | Bank of America, N.A. | 06/21/2025 | Albaraka Türk Participation | $525,000.00 |
508401890.2
Bank | ||||
68181553 | Bank of America, N.A. | 09/02/2025 | Intesa SanPaolo | $74,295.00 |
68198074 | Bank of America, N.A. | 01/31/2025 | National Bank of Oman | $80,000.00 |
68197240 | Bank of America, N.A. | 11/30/2024 | Intesa SanPaolo | $1,050,000.00 |
68184890 | Bank of America, N.A. | | | $0.00 |
68185877 | Bank of America, N.A. | 02/14/2025 | Albaraka Türk Participation Bank | $92,080.00 |
68199229 | Bank of America, N.A. | 03/30/2025 | Askari Bank Limited | $25,000.00 |
68199710 | Bank of America, N.A. | | | $0.00 |
68200918 | Bank of America, N.A. | 08/28/2025 | National Bank of Oman | $150,000 |
508401890.2
Subsidiaries, Joint Ventures, Partnerships and Other Equity Investments
Name of Loan Party | Name of Person | Jurisdiction of Organization | Number of shares of each class of Equity Interests outstanding | Percentage of Equity Interests Owned | Class or nature of such Equity Interests |
|---|---|---|---|---|---|
AeroVironment, Inc. | Altoy Savunma Sanayi ve Havacilik Anonim Sirketi | Turkey | 450 Class B shares | 15% | Voting |
AeroVironment, Inc. | Arcturus UAV, Inc. | California | 110,000 shares of Common Stock | 100% | Voting |
AeroVironment, Inc. | Tomahawk Robotics, Inc. | Delaware | 100 shares of Common Stock | 100% | Voting |
AeroVironment, Inc. | AeroVironment, Inc.1 | Afghanistan | N/A | 100% | Voting |
AeroVironment, Inc. | Franklin Blackhorse, L.P. 2 | Delaware | Indefinite | +/- 11.0% | Limited Partnership Interest |
AeroVironment, Inc. | Franklin Blackhorse II, L.P. 3 | Delaware | Indefinite | +/- 20.0% | Limited Partnership Interest |
AeroVironment, Inc. | Telerob Gesellschaft für Fernhantierungstechnik mbH | Germany | 1 share | 100% | Voting |
Amprius Technologies, Inc. | Delaware | 500,000 shares (and warrant for 500,000 shares at $12.50 exercise price) | 0.6% | Voting | |
AeroVironment, Inc. | Nauticus Robotics, Inc. | Delaware | 278 shares | 0.006% | Voting |
1 This subsidiary is no longer operating.
2 See detail on Schedule 7.3.
3 See detail on Schedule 7.3.
508401890.2
Schedule 5.18(b)
Loan Parties
Loan Party | Chief Executive Office | Jurisdiction of Organization | US Taxpayer | Organizational Identification Number |
|---|---|---|---|---|
AeroVironment, Inc. | 900 Innovators Way, Simi Valley CA 93065 | Delaware | 95-2705790 | 4175915 |
Arcturus UAV, Inc | 1035 N McDowell Boulevard, Petaluma CA 94954 | California | 83-2175946 | 4200276 |
Tomahawk Robotics, Inc. | 2326 Irwin Street, Melbourne, FL, 32901 | Delaware | 82-3905852 | 7066184 |
508401890.2
Schedule 5.19(b)
Intellectual Property
| (a) | AeroVironment, Inc. |
U.S. Issued Patents
Title | Patent Nos. | Issue Date |
|---|---|---|
Methods and systems for utilizing dual global positioning | 12,099,128 | 9/24/2024 |
System and method for drone tethering | 12,084,179 | 9/10/2024 |
System for detachably coupling an unmanned aerial vehicle | 12,060,167 | 8/13/2024 |
Ganged servo flight control system for an unmanned aerial | 12,054,249 | 8/6/2024 |
Elevon control system | 12,043,382 | 7/23/2024 |
System and method of high-resolution digital data image transmission | 12,047,628 | 7/23/2024 |
Aircraft system for reduced observer visibility | 12,037,115 | 7/16/2024 |
Pod launch and landing system for vertical take-off and | 12,037,135 | 7/16/2024 |
508401890.2
Title | Patent Nos. | Issue Date |
|---|---|---|
Multimode unmanned aerial vehicle | 12,013,212 | 6/18/2024 |
Off-center parachute flight termination system including latch mechanism disconnectable by burn wire | 11,981,429 | 5/14/2024 |
UAV payload module camera assembly and retraction | 11,975,867 | 5/7/2024 |
Safety system for operation of an unmanned aerial vehicle | 11,977,380 | 5/7/2024 |
Bi-stable, sub-commutated, direct-drive, sinusoidal motor controller for precision position control | 11,973,455 | 4/30/2024 |
Unmanned aircraft turn and approach system | 11,971,717 | 4/30/2024 |
Compressed motor winding | 11,942,842 | 3/26/2024 |
Powerplant and related control system and method | 11,920,512 | 3/5/2024 |
Methods and systems for cloud-based management of images captured by aerial vehicles | 11,919,639 | 3/5/2024 |
Unmanned aerial vehicle and method of operation | 11,919,628 | 3/5/2024 |
System For Protecting a Rotatable Shaft of a Motor from | 11,873,074 | 1/16/2024 |
508401890.2
Title | Patent Nos. | Issue Date |
|---|---|---|
Moments | ||
System and method for solar cell array communication | 11,876,599 | 1/16/2024 |
Airframe-mounted package launching system, package | 11,873,114 | 1/16/2024 |
METHODS OF CLIMB AND GLIDE OPERATIONS OF A | 11,868,143 | 1/9/2024 |
INTERACTIVE WEAPON TARGETING SYSTEM DISPLAYING REMOTE SENSED IMAGE OF TARGET | 11,867,479 | 1/9/2024 |
Methods and Systems for Determining Flight Plans for | 11,860,633 | 1/2/2024 |
POD COVER SYSTEM FOR A VERTICAL TAKE-OFF AND LANDING (VTOL) UNMANNED AERIAL | 11,851,209 | 12/26/2023 |
Vertical Take-Off and Landing (VTOL) Winged Air Vehicle with Complementary Angled | 11,851,173 | 12/26/2023 |
508401890.2
Title | Patent Nos. | Issue Date |
|---|---|---|
Rotors | ||
SURVEY MIGRATION SYSTEM FOR VERTICAL | 11,840,152 | 12/12/2023 |
MOTOR MOUNT AND DAMPER | 11,843,306 | 12/12/2023 |
SUPERVISORY SAFETY SYSTEM FOR CONTROLLING AND LIMITING UNMANNED AERIAL SYSTEM (UAS) | 11,842,649 | 12/12/2023 |
Deep Stall Aircraft Landing | 11,837,102 | 12/5/2023 |
SYSTEMS AND DEVICES FOR AN RF SIGNAL | 11,791,063 | 10/17/2023 |
System and method for performing precision guided air to | 11,775,916 | 10/3/2023 |
RIB MOUNTING FLANGES FOR AN UNMANNED AERIAL VEHICLE | 11,772,774 | 10/3/2023 |
Ground Support Equipment for a High Altitude Long Endurance Aircraft | 11,772,817 | 10/3/2023 |
508401890.2
Title | Patent Nos. | Issue Date |
|---|---|---|
Voronoi Cropping of Images for Post Field Generation | 11,741,571 | 8/29/2023 |
SYSTEMS AND DEVICES FOR REMOTELY OPERATED UNMANNED AERIAL VEHICLE REPORT SUPPRESSING LAUNCHER WITH PORTABLE RF | 11,731,784 | 8/22/2023 |
METHODS AND SYSTEMS FOR RETAINING LATERAL CONTROL OF AN UNMANNED AERIAL VEHICLE | 11,724,793 | 8/15/2023 |
Multispectral Filters | 11,721,008 | 8/8/2023 |
Machine to Machine Targeting Maintaining Positive Identification | 11,714,407 | 8/1/2023 |
System and method of high-resolution digital data image | 11,700,408 | 7/11/2023 |
Aircraft system for reduced observer visibility | 11,691,715 | 7/4/2023 |
Methods and systems for utilizing dual global positioning | 11,686,859 | 6/27/2023 |
508401890.2
Title | Patent Nos. | Issue Date |
|---|---|---|
vehicle | ||
Dynamic transmission control for a wireless network | 11,672,003 | 6/6/2023 |
Elevon control system | 11,667,373 | 6/6/2023 |
System for detachably coupling an unmanned aerial vehicle | 11,661,208 | 5/30/2023 |
Ganged servo flight control system for an unmanned aerial | 11,649,046 | 5/16/2023 |
System for protecting a rotatable shaft of a motor from excessive bending moments | 11,618,549 | 4/4/2023 |
Pod launch and landing system for vertical takeoff and landing (VTOL) unmanned aerial vehicles (UAVS) | 11,603,218 | 3/14/2023 |
Methods and systems for energy-efficient take-offs and landings for vertical take-off and landing (VTOL) aerial | 11,603,196 | 3/14/2023 |
Interactive weapon targeting system displaying remote | 11,592,267 | 2/28/2023 |
Stator winding heat sink configuration | 11,581,769 | 2/14/2023 |
Elevon control system | 11,577,818 | 2/14/2023 |
508401890.2
Title | Patent Nos. | Issue Date |
|---|---|---|
System and method for interception and countering unmanned aerial vehicles (UAVS) | 11,579,610 | 2/14/2023 |
UAV PAYLOAD MODULE CAMERA ASSEMBLY AND RETRACTION MECHANISM | 11,554,879 | 1/17/2023 |
MULTIMODE UNMANNED AERIAL VEHICLE | 11,555,672 | 1/17/2023 |
EXTRUDED WING PROTECTION SYSTEM AND | 11,535,361 | 12/27/2022 |
OFF-CENTER PARACHUTE FLIGHT TERMINATION SYSTEM INCLUDING LATCH MECHANISM | 11,518,514 | 12/6/2022 |
SUPERVISORY SAFETY SYSTEM FOR CONTROLLING AND LIMITING UNMANNED AERIAL SYSTEM (UAS) OPERATIONS | 11,514,802 | 11/29/2022 |
SYSTEM AND METHOD FOR SOLAR CELL ARRAY | 11,496,209 | 11/8/2022 |
SYSTEM AND METHOD OF HIGH-RESOLUTION DIGITAL DATA IMAGE TRANSMISSION | 11,463,760 | 10/4/2022 |
508401890.2
Title | Patent Nos. | Issue Date |
|---|---|---|
GROUND SUPPORT EQUIPMENT FOR A HIGH ALTITUDE LONG ENDURANCE AIRCRAFT | 11,414,210 | 8/16/2022 |
CAMERA BALL TURRET HAVING HIGH BANDWIDTH | 11,401,045 | 8/2/2022 |
MOTOR MOUNT AND DAMPER | 11,355,995 | 6/7/2022 |
CRYOGENIC LIQUID TANK | 11,346,501 | 5/31/2022 |
DISBURSEMENT SYSTEM FOR AN UNMANNED | 11,338,921 | 5/24/2022 |
SYSTEMS AND DEVICES FOR REMOTELY OPERATED UNMANNED AERIAL VEHICLE REPORT- SUPPRESSING LAUNCHER WITH PORTABLE RF | 11,319,087 | 5/3/2022 |
HIGH ALTITUDE, LONG ENDURANCE, UNMANNED AIRCRAFT AND METHODS OF OPERATION THEREOF | 11,299,269 | 4/12/2022 |
UNMANNED AERIAL VEHICLE AND METHOD OF | 11,292,591 | 4/5/2022 |
508401890.2
Title | Patent Nos. | Issue Date |
|---|---|---|
OPERATION | ||
METHODS AND SYSTEMS FOR RETAINING LATERAL CONTROL OF AN UNMANNED AERIAL VEHICLE DURING LANDING WITH LEVELED INBOARD | 11,292,583 | 4/5/2022 |
BI-STABLE, SUB-COMMUTATED, DIRECT-DRIVE, | 11,264,925 | 3/1/2022 |
SURVEY MIGRATION SYSTEM FOR VERTICAL | 11,254,229 | 2/22/2022 |
VERTICAL TAKE-OFF AND LANDING (VTOL) | 11,247,772 | 2/15/2022 |
UAV HAVING HERMETICALLY SEALED | 11,230,374 | 1/25/2022 |
RECONFIGURABLE BATTERY-OPERATED VEHICLE | 11,220,170 | 1/11/2022 |
508401890.2
Title | Patent Nos. | Issue Date |
|---|---|---|
SYSTEM | ||
GEOGRAPHIC SURVEY SYSTEM FOR VERTICAL TAKE-OFF AND LANDING (VTOL) UNMANNED | 11,216,015 | 1/4/2022 |
COMPRESSED MOTOR WINDING | 11,171,528 | 11/9/2021 |
MULTISPECTRAL FILTERS | 11,157,736 | 10/26/2021 |
METHODS AND SYSTEMS FOR CLOUD-BASED MANAGEMENT OF IMAGES CAPTURED BY AERIAL | 11,155,348 | 10/26/2021 |
PRIVACY SHIELD FOR UNMANNED AERIAL SYSTEMS | 11,153,537 | 10/19/2021 |
MOUNTING SYSTEM FOR MECHANICAL-SHOCK RESISTANT PRINTED CIRCUIT BOARD (PCB) | 11,147,179 | 10/12/2021 |
SYSTEMS AND DEVICES FOR AN RF SIGNAL CARRYING CABLE OF A MULTI-PACK LAUNCHER | 11,145,435 | 10/12/2021 |
VORONOI CROPPING OF IMAGES FOR POST FIELD GENERATION | 11,138,706 | 10/5/2021 |
DISBURSEMENT SYSTEM FOR AN | 11,130,573 | 9/28/2021 |
508401890.2
Title | Patent Nos. | Issue Date |
|---|---|---|
UNMANNED AERIAL VEHICLE | ||
INTERACTIVE WEAPON TARGETING SYSTEM DISPLAYING REMOTE SENSED IMAGE OF TARGET | 11,118,867 | 9/14/2021 |
MACHINE TO MACHINE TARGETING MAINTAINING POSITIVE | 11,112,787 | 9/7/2021 |
ROTATING LIDAR | 11,092,673 | 8/17/2021 |
SYSTEMS AND METHODS FOR CHARGING | 11,086,337 | 8/10/2021 |
METHODS AND SYSTEMS FOR DETERMINING FLIGHT PLANS FOR VERTICAL TAKE-OFF AND | 11,086,325 | 8/10/2021 |
ELEVON CONTROL SYSTEM | 11,040,766 | 6/22/2021 |
SAFETY SYSTEM FOR OPERATION OF AN | 11,029,684 | 6/8/2021 |
POWERPLANT AND RELATED CONTROL SYSTEM AND METHOD | 11,022,030 | 6/1/2021 |
POD OPERATING SYSTEM FOR A | 11,021,266 | 6/1/2021 |
508401890.2
Title | Patent Nos. | Issue Date |
|---|---|---|
VERTICAL TAKE- OFF AND LANDING (VTOL) UNMANNED AERIAL | ||
System and method for performing precision guided air to ground package delivery | 11004027 | 5/11/2021 |
METHODS AND SYSTEMS FOR UTILIZING DUAL GLOBAL POSITIONING SYSTEM (GPS) ANTENNAS IN VERTICAL TAKE-OFF AND LANDING (VTOL) AERIAL | 10,996,343 | 5/4/2021 |
ELEVON CONTROL SYSTEM | 10,960,968 | 3/30/2021 |
UNMANNED AERIAL VEHICLE DRAG | 10,955,859 | 3/23/2021 |
AIR VEHICLE SYSTEM HAVING DEPLOYABLE | 10,953,976 | 3/23/2021 |
SYSTEM AND METHOD OF HIGH-RESOLUTION DIGITAL DATA IMAGE TRANSMISSION | 10,945,017 | 3/9/2021 |
WATER-TIGHT COMPARTMENT WITH REMOVABLE | 10,941,610 | 3/9/2021 |
508401890.2
Title | Patent Nos. | Issue Date |
|---|---|---|
ACCESS | ||
AIR VEHICLE FLIGHT MECHANISM AND CONTROL METHOD | 10919623 | 2/16/2021 |
UNMANNED AERIAL VEHICLE ANGULAR REORIENTATION | 10875631 | 12/29/2020 |
MOTOR AIR FLOW COOLING | 10873229 | 12/22/2020 |
INVERTIBLE AIRCRAFT | 10870495 | 12/22/2020 |
POD COVER SYSTEM FOR A VERTICAL | 10850866 | 12/22/2020 |
AIR VEHICLE FLIGHT MECHANISM AND CONTROL METHOD FOR NON-SINUSOIDAL WING FLAPPING | 10850837 | 12/1/2020 |
AD HOC DYNAMIC DATA LINK REPEATER | 10836483 | 11/17/2020 |
DEEP STALL AIRCRAFT LANDING | 10810894 | 10/20/2020 |
UAV PAYLOAD MODULE CAMERA ASSEMBLY | 10800544 | 10/13/2020 |
UNMANNED AIRCRAFT TURN AND APPROACH SYSTEM | 10768624 | 9/8/2020 |
508401890.2
Title | Patent Nos. | Issue Date |
|---|---|---|
DYNAMIC TRANSMISSION CONTROL FOR A | 10736121 | 8/4/2020 |
VERTICAL TAKEOFF AND LANDING (VTOL) AIR | 10717522 | 7/21/2020 |
EXTRUDED CONTROL SURFACE HAVING A | 10710703 | 7/14/2020 |
METHODS AND APPARATUS FOR UNMANNED AIRCRAFT-BASED OBJECT | 10701913 | 7/7/2020 |
UNMANNED AIRCRAFT NAVIGATION SYSTEM | 10705541 | 7/7/2020 |
METHODS AND SYSTEMS FOR UTILIZING DUAL GLOBAL POSITIONING SYSTEM (GPS) ANTENNAS INVERTICAL TAKE-OFF AND LANDING (VTOL) AERIAL | 10705224 | 7/7/2020 |
SYSTEMS AND DEVICES FOR REMOTELY OPERATED UNMANNED AERIAL VEHICLE REPORT- | 10703506 | 7/7/2020 |
508401890.2
Title | Patent Nos. | Issue Date |
|---|---|---|
PORTABLE RF TRANSPARENT LAUNCH TUBE | ||
ELEVON CONTROL SYSTEM | 10696375 | 6/30/2020 |
System and method for performing precision guided air to ground package delivery | 10,671,960 | 6/2/2020 |
SURVEY MIGRATION SYSTEM FOR VERTICAL TAKE- OFF AND LANDING (VTOL) UNMANNED AERIAL VEHICLES (UAVS) | 10671095 | 6/2/2020 |
MOTOR MOUNT AND DAMPER | 10666112 | 5/26/2020 |
FLUX CONCENTRATOR FOR IRONLESS MOTOR | 10666098 | 5/26/2020 |
UAV HAVING HERMETICALLY SEALED MODULARIZED COMPARTMENTS AND FLUID DRAIN | 10647423 | 5/12/2020 |
THERMAL MANAGEMENT SYSTEM FOR AN AIRCRAFT AVIONICS BAY | 10638644 | 4/28/2020 |
AIRCRAFT GROUNDING SYSTEM | 10633113 | 4/28/2020 |
SUPERVISORY SAFETY SYSTEM FOR CONTROLLING | 10621876 | 4/14/2020 |
508401890.2
Title | Patent Nos. | Issue Date |
|---|---|---|
AND LIMITING UNMANNED AERIAL SYSTEM (UAS) OPERATIONS | ||
GANGED SERVO FLIGHT CONTROL SYSTEM FOR AN UNMANNED AERIAL VEHICLE | 10618645 | 4/14/2020 |
MOUNTING SYSTEM FOR MECHANICAL-SHOCK RESISTANT PRINTED CIRCUIT BOARD (PCB) | 10617028 | 4/7/2020 |
COMPRESSED MOTOR WINDING | 10601273 | 3/24/2020 |
CRYOGENIC LIQUID TANK | 10584828 | 3/10/2020 |
ELEVON CONTROL SYSTEM | 10583910 | 3/10/2020 |
UNMANNED AERIAL VEHICLE DRAG AUGMENTATION BY REVERSE PROPELLER ROTATION | 10558225 | 2/11/2020 |
INTERACTIVE WEAPON TARGETING SYSTEM | 10539394 | 1/21/2020 |
GEOGRAPHIC SURVEY SYSTEM FOR VERTICAL TAKE-OFF AND LANDING (VTOL) UNMANNED | 10534372 | 1/14/2020 |
508401890.2
Title | Patent Nos. | Issue Date |
|---|---|---|
(UAVS) | ||
INVERTED-LANDING AIRCRAFT | 10533851 | 1/14/2020 |
POWER AND COMMUNICATION INTERFACE FOR VERTICAL TAKE-OFF AND LANDING (VTOL) UNMANNED AERIAL VEHICLES (UAVS) | 10518901 | 12/31/2019 |
SYSTEM FOR PROTECTING A ROTATABLE SHAFT OF | 10507903 | 12/17/2019 |
MULTIMODE UNMANNED AERIAL VEHICLE | 10494093 | 12/3/2019 |
SMALL UNMANNED AERIAL VEHICLE (SUAV) | 10479526 | 11/19/2019 |
UAV PAYLOAD MODULE CAMERA ASSEMBLY AND | 10457418 | 10/29/2019 |
SYSTEMS AND DEVICES FOR REMOTELY OPERATED UNMANNED AERIAL VEHICLE REPORT- | 10450089 | 10/22/2019 |
508401890.2
Title | Patent Nos. | Issue Date |
|---|---|---|
LAUNCH TUBE | ||
SYSTEM FOR DETACHABLY COUPLING AN UNMANNED AERIAL VEHICLE WITHIN A LAUNCH TUBE | 10442554 | 10/15/2019 |
VERTICAL TAKE-OFF AND LANDING (VTOL) WINGED AIR VEHICLE WITH COMPLEMENTARY | 10370095 | 8/6/2019 |
UNMANNED AERIAL VEHICLE ANGULAR REORIENTATION | 10343766 | 7/9/2019 |
POD LAUNCH AND LANDING SYSTEM FOR | 10336470 | 7/2/2019 |
INVERTIBLE AIRCRAFT | 10329025 | 6/25/2019 |
AIR VEHICLE FLIGHT MECHANISM AND CONTROL METHOD | 10266258 | 4/23/2019 |
VERTICAL TAKEOFF AND LANDING (VTOL) AIR VEHICLE | 10259577 | 4/16/2019 |
INTERACTIVE WEAPON TARGETING SYSTEM DISPLAYING REMOTE SENSED IMAGE OF TARGET AREA | 10247518 | 4/2/2019 |
508401890.2
Title | Patent Nos. | Issue Date |
|---|---|---|
LAUNCH TUBE RESTRAINT SYSTEM FOR | 10239639 | 3/26/2019 |
AIRCRAFT SYSTEM FOR REDUCED OBSERVER VISIBILITY | 10227129 | 3/12/2019 |
MULTIMODE UNMANNED AERIAL VEHICLE | 10222177 | 3/5/2019 |
SAFETY SYSTEM FOR OPERATION OF AN UNMANNED AERIAL VEHICLE | 10209707 | 2/19/2019 |
DEEP STALL AIRCRAFT LANDING | 10204522 | 2/12/2019 |
SYSTEM FOR ALIGNING A PROPELLER | 10196150 | 2/5/2019 |
MOUNTING SYSTEM FOR MECHANICAL-SHOCK RESISTANT PRINTED CIRCUIT BOARD (PCB) | 10194551 | 1/29/2019 |
UAV PAYLOAD MODULE CAMERA ASSEMBLY AND RETRACTION MECHANISM | 10189581 | 1/29/2019 |
OPERATING CONTROL DEVICE FOR AN UNMANNED | D837166 | 1/1/2019 |
RECONFIGURABLE BATTERY-OPERATED | 10155588 | 12/18/2018 |
508401890.2
Title | Patent Nos. | Issue Date |
|---|---|---|
VEHICLE SYSTEM | ||
POWERPLANT AND RELATED CONTROL SYSTEM AND METHOD | 10138801 | 11/27/2018 |
SYSTEMS AND DEVICES FOR REMOTELY OPERATED UNMANNED AERIAL VEHICLE REPORT- | 10124909 | 11/13/2018 |
THERMAL MANAGEMENT SYSTEM FOR AN AIRCRAFT AVIONICS BAY | 10104809 | 10/16/2018 |
STATOR WINDING HEAT SINK CONFIGURATION | 10103592 | 10/16/2018 |
WATER-TIGHT COMPARTMENT WITH REMOVABLE HATCH AND TWO-SIDED GEL SEAL FOR MULTIPLE CONDUIT ACCESS | 10094165 | 10/9/2018 |
TILT-BALL TURRET WITH GIMBAL LOCK AVOIDANCE | 10081441 | 9/25/2018 |
AIR VEHICLE FLIGHT MECHANISM AND CONTROL METHOD FOR NON-SINUSOIDAL WING FLAPPING | 10065737 | 9/4/2018 |
SMALL UNMANNED AERIAL VEHICLE | 10046864 | 8/14/2018 |
508401890.2
Title | Patent Nos. | Issue Date |
|---|---|---|
(SUAV) | ||
UNMANNED AIRCRAFT TURN AND APPROACH | 10042360 | 8/7/2018 |
ROTATING LIDAR | 10042042 | 8/7/2018 |
VERTICAL TAKEOFF AND LANDING (VTOL) AIR VEHICLE | 9988147 | 6/5/2018 |
SURVEY MIGRATION SYSTEM FOR VERTICAL TAKE- OFF AND LANDING (VTOL) UNMANNED AERIAL VEHICLES (UAVS) | 9977435 | 5/22/2018 |
AIRCRAFT GROUNDING SYSTEM | 9957065 | 5/1/2018 |
AIR VEHICLE FLIGHT MECHANISM AND CONTROL | 9957044 | 5/1/2018 |
AIR VEHICLE FLIGHT MECHANISM AND CONTROL METHOD | 9950790 | 4/24/2018 |
FLUX CONCENTRATOR FOR IRONLESS MOTOR | 9941757 | 4/10/2018 |
VERTICAL TAKE-OFF AND LANDING (VTOL) | D813143 | 3/20/2018 |
508401890.2
Title | Patent Nos. | Issue Date |
|---|---|---|
AIRCRAFT SYSTEM FOR REDUCED OBSERVER | 9902489 | 2/27/2018 |
GEOGRAPHIC SURVEY SYSTEM FOR VERTICAL | 9880563 | 1/30/2018 |
LAUNCH TUBE RESTRAINT SYSTEM FOR UNMANNED AERIAL VEHICLE (UAV) | 9873526 | 1/23/2018 |
POWER AND COMMUNICATION INTERFACE FOR VERTICAL TAKE-OFF AND LANDING (VTOL) | 9873524 | 1/23/2018 |
UAV PAYLOAD MODULE CAMERA ASSEMBLY AND RETRACTION MECHANISM | 9850004 | 12/26/2017 |
HIGH ALTITUDE, LONG ENDURANCE, UNMANNED AIRCRAFT AND METHODS OF OPERATION THEREOF | 9834307 | 12/5/2017 |
VERTICAL TAKEOFF AND LANDING (VTOL) AIR VEHICLE | 9834305 | 12/5/2017 |
CRYOGENIC LIQUID | 9829155 | 11/28/2017 |
508401890.2
Title | Patent Nos. | Issue Date |
|---|---|---|
TANK | ||
COMPRESSED MOTOR WINDING | 9825497 | 11/21/2017 |
INTERACTIVE WEAPON TARGETING SYSTEM | 9816785 | 11/14/2017 |
ACTIVE MULTI-PATH NETWORK REDUNDANCY WITH PERFORMANCE MONITORING | 9787610 | 10/10/2017 |
UNMANNED AERIAL VEHICLE ANGULAR REORIENTATION | 9776709 | 10/3/2017 |
SYSTEM FOR PROTECTING A ROTATABLE SHAFT OF A MOTOR FROM EXCESSIVE BENDING MOMENTS | 9776706 | 10/3/2017 |
ACTIVE DIHEDRAL CONTROL SYSTEM FOR A TORSIONALLY FLEXIBLE WING | 9764819 | 9/19/2017 |
THERMAL MANAGEMENT SYSTEM FOR AN | 9756764 | 9/5/2017 |
HEAT TRANSFER SYSTEM FOR AIRCRAFT STRUCTURES | 9750161 | 8/29/2017 |
508401890.2
Title | Patent Nos. | Issue Date |
|---|---|---|
STATOR WINDING HEAT SINK CONFIGURATION | 9748809 | 8/29/2017 |
FAULT-TOLERANT, FRAME-BASED | 9735980 | 8/15/2017 |
POWERPLANT AND RELATED CONTROL SYSTEM AND METHOD | 9719411 | 8/1/2017 |
MOTOR MOUNT AND DAMPER | 9705377 | 7/11/2017 |
MOTOR AIR FLOW COOLING | 9673673 | 6/6/2017 |
DEEP STALL AIRCRAFT LANDING | 9672748 | 6/6/2017 |
SMALL UNMANNED AERIAL VEHICLE (SUAV) SHIPBOARD RECOVERY SYSTEM | 9669947 | 6/6/2017 |
AIR VEHICLE FLIGHT MECHANISM AND CONTROL METHOD FOR NON-SINUSOIDAL WING FLAPPING | 9669925 | 6/6/2017 |
INVERTIBLE AIRCRAFT | 9650135 | 5/16/2017 |
POWER AND COMMUNICATION INTERFACE FOR VERTICAL TAKE-OFF AND LANDING (VTOL) UNMANNED AERIAL VEHICLES (UAVS) | 9650133 | 5/16/2017 |
SYSTEM FOR ALIGNING A | 9586673 | 3/7/2017 |
508401890.2
Title | Patent Nos. | Issue Date |
|---|---|---|
PROPELLER | ||
REMOTE DEVICE CONTROL AND POWER SUPPLY | 9561764 | 2/7/2017 |
INVERTIBLE AIRCRAFT | 9511859 | 12/6/2016 |
INVERTED-LANDING AIRCRAFT | 9511858 | 12/6/2016 |
WATER-TIGHT COMPARTMENT WITH REMOVABLE HATCH AND TWO-SIDED GEL SEAL FOR MULTIPLE | 9476251 | 10/25/2016 |
LAUNCH TUBE RESTRAINT SYSTEM FOR UNMANNED AERIAL VEHICLE (UAV) | 9470477 | 10/18/2016 |
WATER RESISTANT AIRCRAFT PITOT DEVICE | 9404936 | 8/2/2016 |
HIGH ALTITUDE, LONG ENDURANCE, UNMANNED AIRCRAFT AND METHODS OF OPERATION THEREOF | 9404750 | 8/2/2016 |
UAV HAVING HERMETICALLY SEALED MODULARIZED COMPARTMENTS AND FLUID DRAIN PORTS | 9365088 | 6/14/2016 |
AIRCRAFT GROUNDING SYSTEM | 9340302 | 5/17/2016 |
508401890.2
Title | Patent Nos. | Issue Date |
|---|---|---|
UAV PAYLOAD MODULE CAMERA ASSEMBLY AND | 9309006 | 4/12/2016 |
SYSTEM AND METHOD OF HIGH-RESOLUTION DIGITAL DATA IMAGE TRANSMISSION | 9288513 | 3/15/2016 |
FLUX CONCENTRATOR FOR IRONLESS MOTORS | 9270154 | 2/23/2016 |
POWERPLANT AND RELATED CONTROL SYSTEM AND METHOD | 9267440 | 2/23/2016 |
UNMANNED AERIAL VEHICLE ANGULAR REORIENTATION | 9211947 | 12/15/2015 |
DEEP STALL AIRCRAFT LANDING | 9208689 | 12/8/2015 |
ACTIVE MULTI-PATH NETWORK REDUNDANCY WITH PERFORMANCE MONITORING | 9203783 | 12/1/2015 |
INVERTIBLE AIRCRAFT | 9199733 | 12/1/2015 |
SYSTEMS AND DEVICES FOR REMOTELY OPERATED UNMANNED AERIAL VEHICLE REPORT- | 9187184 | 11/17/2015 |
508401890.2
Title | Patent Nos. | Issue Date |
|---|---|---|
TILT-BALL TURRET WITH GIMBAL LOCK AVOIDANCE | 9156551 | 10/13/2015 |
MULTIMODE UNMANNED AERIAL VEHICLE | 9127908 | 9/8/2015 |
ACTIVE DIHEDRAL CONTROL SYSTEM FOR A TORISIONALLY FLEXIBLE WING | 9120555 | 9/1/2015 |
FAULT-TOLERANT, FRAME-BASED COMMUNICATION SYSTEM | 9112785 | 8/18/2015 |
REMOTE DEVICE CONTROL AND POWER SUPPLY | 9112377 | 8/18/2015 |
ELEVON CONTROL SYSTEM | 9108713 | 8/18/2015 |
UNMANNED AERIAL VEHICLE DRAG AUGMENTATION BY REVERSE PROPELLER | 9090335 | 7/28/2015 |
DYNAMIC TRANSMISSION CONTROL FOR A WIRELESS NETWORK | 9084276 | 7/14/2015 |
WATER RESISTANT AIRCRAFT PITOT DEVICE | 9080903 | 7/14/2015 |
ROLL-TILT BALL TURRET CAMERA HAVING COILED DATA TRANSMISSION CABLE | 9075289 | 7/7/2015 |
508401890.2
Title | Patent Nos. | Issue Date |
|---|---|---|
METHOD OF MANUFACTURING A HEAT TRANSFER SYSTEM FOR AIRCRAFT STRUCTURES | 9067287 | 6/30/2015 |
COMPRESSED MOTOR WINDING | 9035526 | 5/19/2015 |
HEAT TRANSFER SYSTEM FOR AIRCRAFT | 8995131 | 3/31/2015 |
ELEVON CONTROL SYSTEM | 8985504 | 3/24/2015 |
CRYOGENIC LIQUID TANK | 8960482 | 2/24/2015 |
ACTIVE MULTI-PATH NETWORK REDUNDANCY | 8867381 | 10/21/2014 |
SENSORLESS OPTIMUM TORQUE CONTROL FOR | 8803454 | 8/12/2014 |
UNMANNED AERIAL VEHICLE DRAG AUGMENTATION BY REVERSE PROPELLER ROTATION | 8800936 | 8/12/2014 |
PREDICTIVE PULSE WIDTH MODULATION FOR AN OPEN DELTA H-BRIDGE DRIVEN HIGH EFFICIENCY | 8796978 | 8/5/2014 |
508401890.2
Title | Patent Nos. | Issue Date |
|---|---|---|
IRONLESS PERMANENT MAGNET MACHINE | ||
AUTOMATIC CONFIGURATION CONTROL OF A | 8761967 | 6/24/2014 |
STATOR WINDING HEAT SINK CONFIGURATION | 8723378 | 5/13/2014 |
RECONFIGURABLE AIRCRAFT | 8660712 | 2/25/2014 |
AIRCRAFT GROUNDING SYSTEM | 8622343 | 1/7/2014 |
MOTOR AIR FLOW COOLING | 8604652 | 12/10/2013 |
ENERGY STORAGE SYSTEM | 8586253 | 11/19/2013 |
BALL TURRET HEAT SINK AND EMI SHIELDING | 8559801 | 10/15/2013 |
ARTICULATED SENSOR SUPPORT STRUCTURE | 8548314 | 10/1/2013 |
ROLL-TILT BALL TURRET CAMERA HAVING COILED DATA TRANSMISSION CABLE | 8523462 | 9/3/2013 |
SYSTEMS AND DEVICES FOR REMOTELY OPERATED UNMANNED AERIAL VEHICLE REPORT- | 8505430 | 8/13/2013 |
508401890.2
Title | Patent Nos. | Issue Date |
|---|---|---|
TRANSPARENT LAUNCH TUBE | ||
WATERPROOF ELECTRICAL CONNECTOR AND | 8491336 | 7/23/2013 |
COLD FUEL COOLING OF INTERCOOLER AND | 8490917 | 7/23/2013 |
POWERPLANT AND RELATED CONTROL SYSTEM | 8479718 | 7/9/2013 |
AIRCRAFT POWER MANAGEMENT | 8457860 | 6/4/2013 |
INTEGRATED ANTENNA AND DISPLAY SHADE | 8451180 | 5/28/2013 |
FAULT-TOLERANT, FRAME-BASED | 8411689 | 4/2/2013 |
HYDROGEN POWERED AIRCRAFT | 8308106 | 11/13/2012 |
AIRCRAFT POWER MANAGEMENT | 8296036 | 10/23/2012 |
WATERPROOF ELECTRICAL CONNECTOR AND | 8257113 | 9/4/2012 |
COLLABORATIVE ENGAGEMENT FOR TARGET IDENTIFICATION AND TRACKING | 8244469 | 8/14/2012 |
508401890.2
Title | Patent Nos. | Issue Date |
|---|---|---|
PREDICTIVE PULSE WIDTH MODULATION FOR AN OPEN DELTA H-BRIDGE DRIVEN HIGH EFFICIENCY IRONLESS PERMANENT MAGNET MACHINE | 8242731 | 8/14/2012 |
SENSORLESS OPTIMUM TORQUE CONTROL FOR | 8242720 | 8/14/2012 |
AIR VEHICLE FLIGHT MECHANISM AND CONTROL METHOD | 8210471 | 7/3/2012 |
AIR VEHICLE FLIGHT MECHANISM AND CONTROL | 8205823 | 6/26/2012 |
POWERPLANT AND RELATED CONTROL SYSTEM | 8200413 | 6/12/2012 |
ENERGY STORAGE SYSTEM | 8197974 | 6/12/2012 |
COLD FUEL COOLING OF INTERCOOLER AND AFTERCOOLER | 8196862 | 6/12/2012 |
HIGH ALTITUDE PLATFORM DEPLOYMENT SYSTEM | 8180341 | 5/15/2012 |
REMOTE DEVICE CONTROL AND POWER | 8148843 | 4/3/2012 |
508401890.2
Title | Patent Nos. | Issue Date |
|---|---|---|
SUPPLY | ||
HYDROGEN POWERED AIRCRAFT | 8028951 | 10/4/2011 |
HYDROGEN POWERED AIRCRAFT | 8011616 | 9/6/2011 |
WATERPROOF ELECTRICAL CONNECTOR AND SYSTEM | 7997931 | 8/16/2011 |
AIRCRAFT CONTROL SYSTEM | 7802756 | 9/28/2010 |
ENERGY STORAGE SYSTEM | 7611789 | 11/3/2009 |
ENERGY STORAGE SYSTEM | 7588846 | 9/15/2009 |
ENERGY STORAGE SYSTEM | 7563529 | 7/21/2009 |
HIGH ALTITUDE PLATFORM DEPLOYMENT SYSTEM | 7555297 | 6/30/2009 |
ENERGY STORAGE SYSTEM | 7531256 | 5/12/2009 |
AIRCRAFT CONTROL SYSTEM | 7198225 | 4/3/2007 |
508401890.2
U.S. Patent Applications
Title | Appl. No. | Filing Date |
|---|---|---|
Roll-Biased Skid-To-Turn Terminal Guidance with Rudder Integrator Feedback | 18/896,519 | 9/25/2024 |
Method Of Managing A Fleet Of High Altitude Long Endurance Aircraft | 18/895,055 | 9/24/2024 |
Machine to Machine Targeting Maintaining Positive Identification | 18/885,077 | 9/13/2024 |
Ground Support Equipment for a High Altitude Long Endurance Aircraft | 18/822,368 | 9/2/2024 |
ELEVON CONTROL SYSTEM | 18/819,264 | 8/29/2024 |
METHODS AND SYSTEMS FOR RETAINING LATERAL CONTROL OF AN UNMANNED AERIAL VEHICLE DURING LANDING WITH LEVELED INBOARD PROPELLERS | 18/806,686 | 8/15/2024 |
SYSTEMS AND METHODS OF REMOTE TELEOPERATION OF ROBOTIC VEHICLES | 18/806,664 | 8/15/2024 |
Methods and Systems for Utilizing Dual Global Positioning System (GPS) Antennas in Vertical Take-Off and Landing | 18/805,133 | 8/14/2024 |
SYSTEM AND METHOD FOR DRONE | 18/797,853 | 8/8/2024 |
508401890.2
Title | Appl. No. | Filing Date |
|---|---|---|
TETHERING | ||
GANGED SERVO FLIGHT CONTROL SYSTEM FOR AN UNMANNED AERIAL VEHICLE | 18/778,531 | 7/19/2024 |
CLASSIFICATION PARALLELIZATION | 18/772,099 | 7/12/2024 |
SYSTEM FOR DETACHABLY COUPLING AN UNMANNED AERIAL VEHICLE WITHIN A LAUNCH | 18/768,378 | 7/10/2024 |
COLLISION PREDICTION AND PREVENTION FOR UNCREWED VEHICLES | 18/759,769 | 6/28/2024 |
FLEET CONTROLLER FOR MULTIPLE TYPES OF UNCREWED VEHICLES | 18/759,784 | 6/28/2024 |
SYSTEMS, DEVICES, AND METHODS FOR DENIED/INTERMITTENT GPS NAVIGATION | 63/663,040 | 6/21/2024 |
SYSTEMS, DEVICES, AND METHODS FOR TERMINAL TRACKING AND WAVE-OFF | 63/663,036 | 6/21/2024 |
SLIDE ON WINGS AND SERVO CONTROL | 63/663,019 | 6/21/2024 |
SPAR FUSELAGE WITH MODULAR SECTIONS AND ZIP-UP AERO | 63/663,014 | 6/21/2024 |
508401890.2
Title | Appl. No. | Filing Date |
|---|---|---|
SHELL | ||
System and method of high-resolution digital data image | 18/749,050 | 6/20/2024 |
Elevon control system | 18/746,357 | 6/18/2024 |
Aircraft system for reduced observer visibility | 18/740,913 | 6/12/2024 |
Multimode unmanned aerial vehicle | 18/659,381 | 5/9/2024 |
SYSTEMS, DEVICES, AND METHODS FOR DEPOT MANAGEMENT | 63/640,670 | 4/30/2024 |
Unmanned aircraft turn and approach system | 18/649,927 | 4/29/2024 |
Safety system for operation of an unmanned aerial vehicle | 18/629,029 | 4/8/2024 |
Bi-stable, sub-commutated, direct-drive, sinusoidal motor | 18/618,016 | 3/27/2024 |
DISTANCE SENSED VERTICAL DESCENT ARREST SYSTEM AND METHODS | 18/444,403 | 2/16/2024 |
Unmanned aerial vehicle and method of operation | 18/430,112 | 2/1/2024 |
Methods and systems for cloud-based management of images captured by aerial vehicles | 18/426,569 | 1/30/2024 |
VTOL Propeller adapter | 18/412,922 | 1/15/2024 |
508401890.2
Title | Appl. No. | Filing Date |
|---|---|---|
and method. | ||
MOTION PLANNING USING ACCELERATION PROFILES AND TRAJECTORY MAPPING | 18/409,720 | 1/10/2024 |
TRAJECTORY MAPPING USING ACCELERATION PROFILES | 18/409,735 | 1/10/2024 |
System For Protecting a Rotatable Shaft of a Motor from Excessive Bending Moments | 18/533,458 | 12/8/2023 |
System and method for solar cell array communication | 18/525,844 | 11/30/2023 |
INTERACTIVE WEAPON TARGETING SYSTEM DISPLAYING REMOTE SENSED IMAGE OF TARGET | 18/521,357 | 11/28/2023 |
Roll-Biased Skid-To-Turn Terminal Guidance with Rudder | 18/564,534 | 11/27/2023 |
METHODS OF CLIMB AND GLIDE OPERATIONS OF A | 18/517,784 | 11/22/2023 |
Methods and Systems for Determining Flight Plans for | 18/516,038 | 11/21/2023 |
508401890.2
Title | Appl. No. | Filing Date |
|---|---|---|
Deep Stall Aircraft Landing | 18/512,863 | 11/17/2023 |
OFF-CENTER PARACHUTE FLIGHT TERMINATION SYSTEM INCLUDING LATCH MECHANISM | 18/511,069 | 11/16/2023 |
Vertical Take-Off and Landing (VTOL) Winged Air Vehicle with Complementary Angled Rotors | 18/387,383 | 11/6/2023 |
MOTOR MOUNT AND DAMPER | 18/386,536 | 11/2/2023 |
SUPERVISORY SAFETY SYSTEM FOR CONTROLLING | 18/386,377 | 11/2/2023 |
SURVEY MIGRATION SYSTEM FOR VERTICAL | 18/386,209 | 11/1/2023 |
SYSTEMS AND DEVICES FOR AN RF SIGNAL CARRYING CABLE OF A MULTI-PACK LAUNCHER | 18/367,422 | 9/12/2023 |
RIB MOUNTING FLANGES FOR AN UNMANNED | 18/238,603 | 8/28/2023 |
508401890.2
Title | Appl. No. | Filing Date |
|---|---|---|
AERIAL VEHICLE | ||
UNIVERSAL MULTIMODAL PAYLOAD CONTROL | 18/453,778 | 8/22/2023 |
Ground Support Equipment for a High Altitude Long | 18/236,169 | 8/21/2023 |
Voronoi cropping of images for post field generation | 18/221,569 | 7/13/2023 |
Methods and systems for retaining lateral control of an unmanned aerial vehicle during landing with leveled inboard | 18/212,840 | 6/22/2023 |
Multispectral filters | 18/212,813 | 6/22/2023 |
Systems and devices for remotely operated unmanned aerial vehicle report-suppressing launcher with portable RF | 18/210,418 | 6/15/2023 |
Machine to machine targeting maintaining positive | 18/208,987 | 6/13/2023 |
Dynamic transmission control for a wireless network | 18/204,223 | 5/31/2023 |
Elevon control system | 18/139,187 | 4/25/2023 |
System and method for performing precision guided air to ground package delivery | 18/109,114 | 2/13/2023 |
508401890.2
Title | Appl. No. | Filing Date |
|---|---|---|
Methods and systems for energy-efficient take-offs and | 18/107,191 | 2/8/2023 |
Stator winding heat sink configuration | 18/104,283 | 1/31/2023 |
SYSTEM AND METHOD FOR INTERCEPTION AND | 18/095,879 | 1/11/2023 |
EXTRUDED WING PROTECTION SYSTEM AND DEVICE | 17/992,601 | 11/22/2022 |
D-TRUSS WING STRUCTURE FOR AN UNMANNED AERIAL VEHICLE | 17/797,808 | 8/5/2022 |
CAMERA BALL TURRET HAVING HIGH BANDWIDTH | 17/879,405 | 8/2/2022 |
SYSTEMS AND METHODS FOR STARTING A | 17/783,486 | 6/8/2022 |
HIGH ALTITUDE, LONG ENDURANCE, UNMANNED | 17/688,739 | 3/7/2022 |
Method of assembling and operating an autorotating | 17/644,657 | 12/16/2021 |
508401890.2
Title | Appl. No. | Filing Date |
|---|---|---|
payload | ||
Autorotating payload delivery device | 17/644,653 | 12/16/2021 |
METHOD OF OPERATING A HIGH ALTITUDE LONG | 17/605,929 | 10/22/2021 |
SYSTEM AND METHOD FOR AUTOMATED TAKE-OFF AND LANDING OF A HIGH ALTITUDE LONG ENDURANCE AIRCRAFT BASED ON THE LOCAL | 17/605,953 | 10/22/2021 |
METHOD OF FLIGHT PLAN OPTIMIZATION OF A HIGH ALTITUDE LONG ENDURANCE AIRCRAFT | 17/605,910 | 10/22/2021 |
METHOD OF MANAGING A FLEET OF HIGH | 17/605,942 | 10/22/2021 |
SYSTEMS AND METHODS FOR DISTRIBUTED CONTROL COMPUTING FOR A HIGH ALTITUDE | 17/605,716 | 10/22/2021 |
508401890.2
Title | Appl. No. | Filing Date |
|---|---|---|
PRIVACY SHIELD FOR UNMANNED AERIAL SYSTEMS | 17/479,177 | 9/20/2021 |
SYSTEMS AND METHODS FOR DELIVERY USING | 17/423,087 | 7/14/2021 |
INVERTIBLE AIRCRAFT | 17129009 | 12/21/2020 |
POD OPERATING SYSTEM FOR A VERTICAL TAKE- | 17088459 | 11/3/2020 |
AD HOC DYNAMIC DATA LINK REPEATER | 17071880 | 10/15/2020 |
FLUX CONCENTRATOR FOR IRONLESS MOTOR | 16860045 | 4/27/2020 |
508401890.2
U.S. Trademark Registrations
Mark | Reg. No. | Reg. Date |
|---|---|---|
AV AeroVironment | 7197042 | 10/17/2023 |
QUANTIX RECON | 6466343 | 8/31/2021 |
CRYSALIS | 6322501 | 4/13/2021 |
PROCEED WITH CERTAINTY | 5525203 | 7/24/2018 |
PROCEED WITH CERTAINTY | 5486890 | 6/5/2018 |
AEROVIRONMENT | 5370262 | 1/2/2018 |
QUANTIX | 5356307 | 12/12/2017 |
BLACKWING | 5233759 | 6/27/2017 |
SNIPE | 5205506 | 5/16/2017 |
RAVEN | 5090368 | 11/29/2016 |
VAPOR | 5031571 | 8/30/2016 |
AV | 4723989 | 4/21/2015 |
AV AEROVIRONMENT (Stylized) | 4593106 | 8/26/2014 |
AV AEROVIRONMENT (Stylized) | 4593105 | 8/26/2014 |
AEROVIRONMENT | 4593104 | 8/26/2014 |
AEROVIRONMENT | 4593103 | 8/26/2014 |
SWITCHBLADE | 4324673 | 4/23/2013 |
WASP | 4134549 | 5/1/2012 |
AV AEROVIRONMENT (Stylized) | 3535416 | 11/18/2008 |
AEROVIRONMENT | 1999292 | 9/10/1996 |
508401890.2
U.S. Trademark Applications
Mark | Appl. No. | Filing Date |
|---|---|---|
P550 | 98,621,138 | 6/26/2024 |
Red Dragon | 98,621,147 | 6/26/2024 |
VAPOR 55 | 98,015,465 | 5/26/2023 |
VNS | 98,015,509 | 5/26/2023 |
SOLAR CONNECTOR | 90,642,581 | 4/13/2021 |
U.S. Copyright Registration
Title | Reg. No. | Reg. Date |
|---|---|---|
The Feasibility of constructing a flying replica of the | TX0001546434 | 3/20/1985 |
| (b) | Arcturus UAV, Inc. |
U.S. Issued Patents
Title | Patent Nos. | Issue Date |
|---|---|---|
METHOD FOR RECOVERING A UAV | 9527603 | 12/27/2016 |
UAV RECOVERY SYSTEM | 8783607 | 07/22/2014 |
UAV LAUNCH ATTACHMENT ASSEMBLY AND LAUNCH SYSTEM | 8733695 | 05/27/2014 |
U.S. Trademark Registrations
508401890.2
Mark | Reg. No. | Reg. Date |
|---|---|---|
JUMP | 4973691 | 06/07/2016 |
ARCTURUSUAV | 4131689 | 04/24/2012 |
| (c) | Tomahawk Robotics, Inc. |
U.S. Issued Patents
Title | Patent Nos. | Issue Date |
|---|---|---|
CLASSIFICATION PARALLELIZATION ARCHITECTURE | 12067768 | 08/20/2024 |
SYSTEMS AND METHODS OF DETECTING INTENT OF SPATIAL CONTROL | 11886182 | 01/30/2024 |
UNIVERSAL CONTROL ARCHITECTURE FOR CONTROL OF UNMANNED SYSTEMS | 11854410 | 12/26/2023 |
CLASSIFICATION PARALLELIZATION ARCHITECTURE | 10/03/2023 | |
INERTIALLY ISOLATED SPATIAL CONTROL | 06/13/2023 |
U.S. Patent Applications
Title | Appl. No. | Filing Date |
|---|---|---|
SYSTEMS AND METHODS OF DETECTING INTENT OF SPATIAL CONTROL | 18540632 20240111303 | 12/14/2023 |
UNIVERSAL CONTROL | 18469635 20240005801 | 09/19/2023 |
508401890.2
508401890.2
Title | Appl. No. | Filing Date |
|---|---|---|
LEGGED VEHICLES | ||
SYSTEMS AND METHODS OF REMOTE TELEOPERATION OF ROBOTIC VEHICLES | 20220083054 | 06/22/2021 |
U.S. Trademark Registrations
Mark | Reg. No. | Reg. Date |
|---|---|---|
 | 6522848 | 10/19/2021 |
 | 6185761 | 10/27/2020 |
508401890.2
Schedule 5.19(c)
Deposit Accounts and Securities Accounts
508401890.2
Schedule 5.19(d)
Real Property
508401890.2
Schedule 7.02
Indebtedness Existing as of the Third Amendment Effective Date
None
508401890.2
Schedule 7.03
Investments Existing as of the Third Amendment Effective Date
13825609v1
EXHIBIT A
[FORM OF] ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (this “Assignment and Assumption”) is dated as of the Effective Date set forth below and is entered into by and between [Insert name of Assignor] (the “Assignor”) and [Insert name of Assignee] (the “Assignee”). Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (as amended, restated, amended and restated, extended, supplemented or otherwise modified from time to time, the “Credit Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (a) all of the Assignor’s rights and obligations as a Lender under the Credit Agreement and any other documents or instruments delivered pursuant thereto in the amount[s] and equal to the percentage interest[s] identified below of all the outstanding rights and obligations of the Assignor under the respective facilities identified below (including Letters of Credit, Swingline Loans and Guarantees included in such facilities), and (b) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (a) above (the rights and obligations sold and assigned pursuant to clauses (a) and (b) above being referred to herein collectively as, the “Assigned Interest”). Such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by the Assignor.
1. Assignor: | ______________________________ |
[Assignor [is][is not] a Defaulting Lender.]
2. Assignee: | ______________________________ |
[and is an [Affiliate][Approved Fund] of [identify Lender]4]
3. Borrower: | AeroVironment, Inc., a Delaware corporation (the “Borrower”) |
4. Administrative Agent: | Bank of America, N.A., as the administrative agent under the Credit Agreement |
5. Credit Agreement: | Credit Agreement, dated as of February 19, 2021, among the Borrower, the Guarantors party thereto, the Lenders from time to time party thereto, Bank of America, N.A., as the Administrative Agent, the Swingline Lender, and an L/C Issuer, and the other L/C Issuers party thereto |
6. Assigned Interest:
4Select as applicable.
1874658v5
Facility Assigned5 | Aggregate Amount of Commitments/Loans for all Lenders* | Amount of Commitment/Loans Assigned* | Percentage Assigned of Commitments/Loans6 |
| $ | $ | % |
| $ | $ | % |
| $ | $ | % |
[7.Trade Date:______________]7
Effective Date: _____________ ___, 20___ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
[signature pages follow]
5 Fill in the appropriate terminology for the types of facilities under the Credit Agreement that are being assigned under this Assignment and Assumption (e.g. “Revolving Facility”, etc.)
* Amount to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date.
6 Set forth, to at least 9 decimals, as a percentage of the Commitments/Loans of all Lenders thereunder.
7 To be completed if the Assignor and the Assignee intend that the minimum assignment amount is to be determined as of the Trade Date.
1874658v5
The terms set forth in this Assignment and Assumption are hereby agreed to:
[NAME OF ASSIGNOR],
as the Assignor
By:
Name:
Title:
[NAME OF ASSIGNEE],
As the Assignee
By:
Name:
Title:
[Consented to and]8 Accepted:
BANK OF AMERICA, N.A.,
as the Administrative Agent
By:
Name:
Title:
[Consented to:]9
[BANK OF AMERICA, N.A.,
as [the Swingline Lender][[and] the L/C Issuer]
By:
Name:
Title:]
[[______],
as an L/C Issuer
By:
Name:
Title:]
8To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement.
9To be added only if the consent of the Borrower and/or other parties (e.g. the L/C Issuer) is required by the terms of the Credit Agreement.
1874658v5
[AEROVIRONMENT, INC.,
a Delaware corporation
By:
Name:
Title:]
1874658v5
ANNEX 1
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1.Representations and Warranties.
1.1.Assignor. The Assignor: (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien, encumbrance or other adverse claim, (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby, and (iv) it is [not] a Defaulting Lender; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document, or (iv) the performance or observance by the Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Loan Document.
1.2.Assignee. The Assignee: (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it meets the requirements to be an assignee under the terms of the Credit Agreement (subject to such consents, if any, as may be required under the terms of the Credit Agreement), (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement and the other Loan Documents as a Lender thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type represented by the Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire the Assigned Interest, is experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section 6.01 thereof, as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase the Assigned Interest, (vi) it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Assignment and Assumption and to purchase the Assigned Interest, and (vii) attached hereto is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee; and (b) agrees that (i) it will, independently and without reliance on the Administrative Agent, the Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.
2.Payments. From and after the Effective Date, the Administrative Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date and to the Assignee for amounts which have accrued from and after the Effective Date. Notwithstanding the foregoing, the Administrative Agent shall make all payments of interest, fees or other amounts paid or payable in kind from and after the Effective Date to the Assignee.
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3.General Provisions. This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and Assumption may be executed in 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. Delivery of an executed counterpart of a signature page of this Assignment and Assumption by fax transmission or e-mail transmission (e.g. “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption. This Assignment and Assumption and any claims, controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising out of or relating to this Assignment and Assumption and the transactions contemplated hereby shall be governed by, and construed in accordance with, the law of the State of New York.
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| Check for distribution to Public Lenders and Private side Lenders1 |
EXHIBIT B
[FORM OF] COMPLIANCE CERTIFICATE
Date:____________
I, ______________________, [Chief Executive Officer][Chief Financial Officer][Treasurer][Controller] of AeroVironment, Inc., a Delaware corporation (the “Borrower”), hereby certify that, to the best of my knowledge and belief, in my capacity as [Chief Executive Officer][Chief Financial Officer][Treasurer][Controller] and not in my individual capacity, with respect to that certain Credit Agreement, dated as of February 19, 2021 (as amended, restated, amended and restated, extended, supplemented or otherwise modified from time to time, the “Credit Agreement”; the terms defined therein being used herein as therein defined), among the Borrower, the Guarantors party thereto, the Lenders from time to time party thereto, Bank of America, N.A., as the Administrative Agent, the Swingline Lender, and an L/C Issuer, and the other L/C Issuers party thereto:
1.This Compliance Certificate is delivered for the fiscal [year][quarter] of the Borrower ended _________________, 20___.
[Use following paragraph 2 for fiscal year-end financial statements:]
[2.The year-end audited financial statements required by Section 6.01(a) of the Credit Agreement for the fiscal year of the Borrower ended as of the date set forth in paragraph 1, together with the report and opinion of an independent certified public accountant required by such section, have been delivered to the Administrative Agent.]
[Use following paragraph 2 for fiscal quarter-end financial statements:]
[2.The unaudited financial statements required by Section 6.01(b) of the Credit Agreement for the fiscal quarter of the Borrower ended as of the date set forth in paragraph 1 have been delivered to the Administrative Agent. The Consolidated financial statements required by Section 6.01(b) of the Credit Agreement fairly present the financial condition, results of operations and cash flows of the Borrower and its Subsidiaries as at such date and for such period, subject only to normal year-end audit adjustments and the absence of footnotes.]
3.The undersigned has reviewed and is familiar with the terms of the Credit Agreement and has made, or has caused to be made, a review of the transactions and financial condition of the Borrower and its Subsidiaries during the accounting period covered by the financial statements delivered herewith.
4.A review of the activities of the Loan Borrower and its Subsidiaries during such fiscal period has been made under the supervision of the undersigned with a view to determining whether during such fiscal period the Borrower and its Subsidiaries performed and observed all their respective obligations under the Loan Documents, and
[select one:]
1 If this box is not checked, this Compliance Certificate will only be posted to Private side Lenders.
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[to the knowledge of the undersigned, during such fiscal period, no Default has occurred and is continuing.]
[or:]
[to the knowledge of the undersigned, during such fiscal period, the following is a list of each Default that has occurred and is continuing, the nature and status of such Default, and actions that have been taken or are proposed to be taken to cure such Default:]
5.Attached hereto as Schedule 1 are calculations of (a) the financial covenants set forth in Section 7.11 of the Credit Agreement as of the last day of and for the Measurement Period ending on the last day of the period covered by the financial statements delivered herewith, (b) the Available Amount as of the date of this Compliance Certificate, and (c) the Consolidated Leverage Ratio as of the last day of and for the Measurement Period ending on the last day of the period covered by the financial statements delivered herewith. Such calculations are true, correct and complete on and as of the date of this Compliance Certificate.
6.Attached hereto as Schedule 2 is a listing of (a) all applications with the United States Patent and Trademark Office or the United States Copyright Office by any Loan Party, if any, for any Intellectual Property made since the date of the most recently delivered Compliance Certificate (or, in the case of the first Compliance Certificate delivered after the Closing Date pursuant to Section 6.02(a) of the Credit Agreement, the Closing Date), (b) all issuances of registrations or letters on existing applications with the United States Patent and Trademark Office or the United States Copyright Office by any Loan Party, if any, for any Intellectual Property received since the date of such prior Compliance Certificate (or, in the case of the first Compliance Certificate delivered after the Closing Date pursuant to Section 6.02(a) of the Credit Agreement, the Closing Date), and (c) all licenses relating to any Intellectual Property registered with the United States Patent and Trademark Office or the United States Copyright Office entered into by any Loan Party since the date of such prior Compliance Certificate (or, in the case of the first Compliance Certificate delivered after the Closing Date pursuant to Section 6.02(a) of the Credit Agreement, the Closing Date).2
7.Any Supply Chain Financing consummated during the period covered by the financial statements delivered herewith was a Permitted Supply Chain Financing. The outstanding amount of all accounts receivable sold or purported to be sold in connection with all such Permitted Supply Chain Financings, which accounts receivable remain uncollected and un-repurchased as of the last day of the period covered by the financial statements delivered herewith, was $[__].
[8.Attached hereto as Schedule 3 is updated evidence of insurance for any insurance coverage of the Loan Parties that was renewed, replaced or modified during the period covered by this Compliance Certificate.3]
[8.][9.]Attached hereto as Schedule [3][4] is a copy of management’s discussion and analysis with respect to the financial statements delivered herewith.
[signature page follows]
2 If no such updates are applicable, Schedule 2 should reflect “None”.
3 Only required to be included for Compliance Certificates delivered in connection with financial statements delivered pursuant to Section 6.01(a) of the Credit Agreement. If no such updates are applicable, Schedule 3 should reflect “None”.
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IN WITNESS WHEREOF, the undersigned has executed this Compliance Certificate as of the date first written above.
AEROVIRONMENT, INC.,
a Delaware corporation
By:
Name:
Title:
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Schedule 1
Calculation of Financial Covenants; Calculation of Available Amount; Calculation of Consolidated Leverage Ratio
In the event of conflict between the provisions and formulas set forth in this Schedule 1 and the provisions and formulas set forth in the Credit Agreement, the provisions and formulas of the Credit Agreement shall prevail.
(I) | Section 7.11(a) – Consolidated Senior Secured Leverage Ratio. | |||
(a) | Consolidated Funded Indebtedness | | ||
| | without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP: | | |
| (i) | all obligations of the Borrower and its Subsidiaries on a Consolidated basis, whether current or long-term, for borrowed money (including the Obligations) and all obligations of the Borrower and its Subsidiaries on a Consolidated basis evidenced by bonds, debentures, notes, loan agreements or other similar instruments: | $_________ | |
| (ii) | all purchase money Indebtedness of the Borrower and its Subsidiaries on a Consolidated basis: | $_________ | |
| (iii) | the principal portion of all obligations of the Borrower and its Subsidiaries on a Consolidated basis under conditional sale or other title retention agreements relating to property purchased by the Borrower or any Subsidiary thereof (other than customary reservations or retentions of title under agreements with suppliers entered into in the ordinary course of business): | $_________ | |
| (iv) | all obligations of the Borrower and its Subsidiaries on a Consolidated basis arising under, without duplication, (A) letters of credit (including standby and commercial, and including the Letters of Credit), bankers’ acceptances, bank guaranties, surety bonds and similar instruments, and (B) the Bilateral Letters of Credit: | $_________ | |
| (v) | all obligations of the Borrower and its Subsidiaries on a Consolidated basis in respect of the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business and not past due for more than ninety (90) days after the date on which such trade account payable was created), including any Earn Out Obligations: | $_________ | |
| (vi) | all Attributable Indebtedness of the Borrower and its Subsidiaries on a Consolidated basis: | $_________ | |
| (vii) | all obligations of the Borrower and its Subsidiaries on a Consolidated basis to purchase, redeem, retire, defease or otherwise make any payment in respect of any Equity Interests in the Borrower, its Subsidiaries or any other Person, valued, in the case of a redeemable preferred interest, at the greater of its voluntary or | $_________ | |
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involuntary liquidation preference plus accrued and unpaid dividends: | ||||
| (viii) | all Funded Indebtedness of other Persons secured by (or for which the holder of such Funded Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on, or payable out of the proceeds of production from, property owned or acquired by the Borrower and its Subsidiaries on a Consolidated basis, whether or not the obligations secured thereby have been assumed: | $_________ | |
| (ix) | all Guarantees provided by the Borrower and its Subsidiaries on a Consolidated basis with respect to Funded Indebtedness of another Person: | $_________ | |
| (x) | all Funded Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which the Borrower or any of its Subsidiaries is a general partner or joint venturer, except to the extent that such Funded Indebtedness is expressly made non-recourse to the Borrower and its Subsidiaries on a Consolidated basis: | $_________ | |
| (xi) | Consolidated Funded Indebtedness [Lines (I)(a)(i) + (ii) + (iii) + (iv) + (v) + (vi) + (vii) + (viii) + (ix) + (x)]: | $_________ | |
| (xii) | Amount of Consolidated Funded Indebtedness that constitutes Junior Debt13: | $_________ | |
| (xiii) | Consolidated Senior Secured Funded Indebtedness [Line (I)(a)(xi) – Line (I)(a)(xii)]: | $_________ | |
(b) | Consolidated EBITDA | | ||
| | for the Borrower and its Subsidiaries on a Consolidated basis, for the Measurement Period most recently completed, an amount equal to: | | |
| (i) | Consolidated Net Income for such period: | $_________ | |
| | the following, without duplication, to the extent deducted in calculating such Consolidated Net Income (or, in the case of amounts pursuant to Line I(b)(ix) below, not already included in Consolidated Net Income): | | |
| (ii) | Consolidated Interest Charges for such period: | | |
| | (A) | all interest, premium payments, debt discount, fees, charges and related expenses in connection with borrowed money (including capitalized interest) or in connection with the deferred purchase price of assets, in each case with respect to such period to the extent treated as interest in accordance with GAAP: | $_________ |
| | (B) | all interest paid or payable with respect to discontinued operations for such period: | $_________ |
13 Amount should be determined giving effect to the proviso set forth in the definition of “Consolidated Senior Secured Funded Indebtedness”.
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| | (C) | the portion of rent expense under Capitalized Leases for such period that is treated as interest in accordance with GAAP: | $_________ |
| | (D) | the “discount rate” (or similar concept evidencing the amount of the discount) applicable to the accounts receivable sold in such period pursuant to a Permitted Supply Chain Financing: | $_________ |
| | (E) | Consolidated Interest Charges [Lines (I)(b)(ii)(A) + (B) + (C) + (D)]: | $_________ |
| (iii) | the provision for federal, state, local and foreign income taxes paid or payable for such period: | $_________ | |
| (iv) | depreciation and amortization expense for such period: | $_________ | |
| (v) | any non-cash expenses, losses or charges (other than any non-cash expense, loss or charge relating to write-offs, write-downs or reserves with respect to accounts or inventory) for such period (including any non-cash stock based compensation expense for such period) which do not represent a cash item in such period or any other period: | $_________ | |
| (vi) | fees, costs and expenses incurred by the Borrower and its Subsidiaries in such period in connection with the negotiation, execution and delivery of any amendments or modifications to the Loan Documents: | $_________ | |
| (vii) | restructuring charges or reserves (which shall include retention, severance, systems establishment cost, excess pension charges, contract termination costs, costs related to start up, closure, relocation or consolidation of facilities, costs to relocate employees, consulting fees, one time information technology costs, and one time branding costs): 14 | $_________ | |
| (viii) | fees, costs, and expenses incurred in such period in connection with the issuance of Equity Interests or Indebtedness, the consummation of Permitted Acquisitions, and the consummation of other Investments permitted pursuant to Section 7.03 of the Credit Agreement (in each case whether consummated before or after the Closing Date), whether or not such transaction is actually consummated: | $_________ | |
| (ix) | the amount of net cost savings and synergies related to any Permitted Acquisition or other Investment permitted pursuant to Section 7.03 of the Credit Agreement, but only to the extent that such net cost savings and synergies are reasonably identifiable, factually supportable and projected by the Borrower in good faith to result from actions that have been taken (or, if not yet taken, with respect to actions for which substantial steps have been taken) within twelve (12) months after the consummation of such Permitted Acquisition or such Investment (with the amount of any such net cost savings and synergies to be added to Consolidated EBITDA as so projected until fully realized and calculated on a Pro Forma Basis as though such net cost savings and synergies had been realized on the first day of | $_________ | |
14 provided, that, the aggregate amount added back pursuant to this Line (I)(b)(vii) for any period, when taken together with the aggregate amount added back pursuant to Line (I)(b)(ix) below for such period, shall not exceed an amount equal to twenty percent (20%) of Consolidated EBITDA (calculated without giving effect to the add backs permitted pursuant to this Line (I)(b)(vii) or Line (I)(b)(ix) below) for such period.
15 provided, that, the aggregate amount added back pursuant to this Line (I)(b)(ix) for any period, when taken together with the aggregate amount added back pursuant to Line (I)(b)(vii) above for such period, shall not exceed an amount equal to twenty percent (20%) of Consolidated EBITDA (calculated without giving effect to the add backs permitted pursuant to this Line (I)(b)(ix) or Line (I)(b)(vii) above) for such period.
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such period), net of the amount of actual benefits realized during such period from such actions:15 | ||||
| | the following, without duplication, to the extent including in calculating such Consolidated Net Income: | | |
| (x) | any non-cash income or gains for such period: | $_________ | |
| (xi) | federal, state, local and foreign income tax credits received in such period: | $_________ | |
| (xii) | Consolidated EBITDA [Lines (I)(b)(i) + (ii)(E) + (iii) + (iv) + (v) + (vi) + (vii) + (viii) + (ix) - (x) - (xi)]: | $_________ | |
(c) | Consolidated Senior Secured Leverage Ratio [(Line (I)(a)(xiii) ÷ Line (I)(b)(xii)]: | _____ to 1.00 | ||
(d) | Maximum Consolidated Senior Secured Leverage Ratio:16 | _____ to 1.00 | ||
(e) | In compliance? | [Yes][No] | ||
16 The maximum Consolidated Senior Secured Leverage Ratio shall not be greater than the Leverage Ratio Target.
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(II) | Section 7.11(b) – Consolidated Fixed Charge Ratio. | ||
(a) | Consolidated EBITDA (see Line (I)(b)(xii)): | $_________ | |
(b) | Consolidated Maintenance Capital Expenditures for such period: | $_________ | |
(c) | Consolidated Interest Charges paid in cash | | |
| | in each case, for the Borrower and its Subsidiaries on a Consolidated basis, to the extent paid in cash for the Measurement Period: | |
| (i) | all interest, premium payments, debt discount, fees, charges and related expenses in connection with borrowed money (including capitalized interest) or in connection with the deferred purchase price of assets, in each case with respect to such period to the extent treated as interest in accordance with GAAP: | $_________ |
| (ii) | all interest paid or payable with respect to discontinued operations for such period: | $_________ |
| (iii) | the portion of rent expense under Capitalized Leases that is treated as interest in accordance with GAAP for such period: | $_________ |
| (iv) | the “discount rate” (or similar concept evidencing the amount of the discount) applicable to the accounts receivable sold in such period pursuant to a Permitted Supply Chain Financing: | $_________ |
| (v) | Consolidated Interest Charges paid in cash [Lines (II)(c)(i) + (ii) + (iii) + (iv)]: | $_________ |
(d) | Consolidated Scheduled Funded Debt Payments for such period: | $_________ | |
(e) | Consolidated Cash Taxes for such period: | $_________ | |
(f) | Aggregate amount of all Designated Restricted Payments made in such period: | $_________ | |
(g) | Consolidated Fixed Charge Ratio [(Lines (II)(a) – (b)) ÷ (Lines (II)(c)(v) + (d) + (e) + (f))]: | _____ to 1.00 | |
(h) | Minimum Consolidated Fixed Charge Leverage Ratio: | 1.25 to 1.00 | |
(i) | In compliance? | [Yes][No] | |
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(III) | Available Amount. | |
(a) | the sum of, without duplication, $30,000,000 | $30,000,000 |
(b) | an amount, not less than zero in the aggregate, equal to fifty percent (50%) of the cumulative Consolidated Net Income for the period (taken as one accounting period) commencing from the first day of the first full fiscal quarter of the Borrower ending after the Closing Date to the end of the fiscal quarter of the Borrower most recently ended: | $_________ |
(c) | one hundred percent (100%) of the net cash proceeds received by the Borrower prior to the last day of the period covered by the financial statements delivered herewith from issuances after the Closing Date of Qualified Capital Stock of the Borrower (solely to the extent such net cash proceeds are Not Otherwise Applied): | $_________ |
(d) | the amount of any Investment made following the Closing Date in reliance on the Available Amount to the extent that such amount is returned in cash prior to the last day of the period covered by the financial statements delivered herewith from the return of, or a return on, principal of such Investment (other than a sale to a Loan Party or a Subsidiary), or from a dividend or interest received with respect to such Investment: | $_________ |
(e) | the amount by which Indebtedness of the Borrower or any of its Subsidiaries is reduced on the Borrower’s Consolidated balance sheet prior to the last day of the period covered by the financial statements delivered herewith upon the conversion or exchange of such Indebtedness for Qualified Capital Stock of the Borrower (less the amount of any cash or the fair market value of other property distributed by the Borrower or any Subsidiary upon such conversion or exchange, other than in connection with a restructuring): | $_________ |
(f) | the cumulative aggregate amount of all Investments made in reliance on the Available Amount pursuant to Section 7.03(n) of the Credit Agreement: | $_________ |
(g) | the cumulative aggregate amount of all Junior Debt Payments made in reliance on the Available Amount pursuant to Section 7.14(a)(iii) of the Credit Agreement: | $_________ |
(h) | Available Amount [(Lines (III)(a) + (b) + (c) + (d) + (e)) – (Lines III(f) + (g))] | $_________ |
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(IV) | Consolidated Leverage Ratio. | |
(a) | Consolidated Funded Indebtedness [Line I(a)(xi)]: | $_________ |
(a) | Consolidated EBITDA [Line I(b)(xii)]: | $_________ |
(c) | Consolidated Leverage Ratio [Line (IV)(a) / Line (IV)(b)]: | _________ |
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Schedule 2
Intellectual Property
Schedule 3
Insurance
Schedule 4
Management’s Discussion and Analysis
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EXHIBIT D
[FORM OF] LOAN NOTICE
Date: ___________, _____
To:Bank of America, N.A., as the Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of February 19, 2021 (as amended, restated, amended and restated, extended, supplemented or otherwise modified from time to time, the “Credit Agreement”; the terms defined therein being used herein as therein defined), among AeroVironment, Inc., a Delaware corporation (the “Borrower”), the Guarantors party thereto, the Lenders from time to time party thereto, Bank of America, N.A., as the Administrative Agent, the Swingline Lender, and an L/C Issuer, and the other L/C Issuers party thereto.
The Borrower hereby requests (select one):
o A [Revolving Borrowing][Incremental Term Borrowing]
o A [conversion][continuation] of [Revolving Loans][Incremental Term Loans]
3.Comprised of: [Base Rate Loans][Term SOFR Loans]
4.For Term SOFR Loans: with an Interest Period of
[With respect to such Borrowing, the Borrower hereby represents and warrants that [(a) such request complies with the requirements of Section 2.01[(b)][(c)] of the Credit Agreement, and (b)] each of the conditions specified in Sections 4.02(a), (b) and (d) of the Credit Agreement have been satisfied on and as of the date of such Borrowing.]
[signature page follows]
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IN WITNESS WHEREOF, the undersigned has caused this Loan Notice to be executed by a duly authorized officer as of the date first written above.
AEROVIRONMENT, INC.,
a Delaware corporation
By:
Name:
Title:
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EXHIBIT E
[FORM OF] NOTICE OF LOAN PREPAYMENT
Date: ___________, _____
To:Bank of America, N.A., as the [Administrative Agent][ Swingline Lender]
[Cc:Bank of America, N.A., as the Administrative Agent]
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of February 19, 2021 (as amended, restated, amended and restated, extended, supplemented or otherwise modified from time to time, the “Credit Agreement”; the terms defined therein being used herein as therein defined), among AeroVironment, Inc., a Delaware corporation (the “Borrower”), the Guarantors party thereto, the Lenders from time to time party thereto, Bank of America, N.A., as the Administrative Agent, the Swingline Lender, and an L/C Issuer, and the other L/C Issuers party thereto.
The Borrower hereby notifies [the Administrative Agent][and the Swingline Lender] that on _____________, pursuant to the terms of Section 2.05(a) of the Credit Agreement, the Borrower intends to prepay/repay the Loans as more specifically set forth below:
o | Voluntary prepayment of [Revolving Loans][Incremental Term Loans] in the following amount(s): |
oTerm SOFR Loans: $
Applicable Interest Period:
oBase Rate Loans: $
oVoluntary prepayment of Swingline Loans in the following amount(s): $
[signature page follows]
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IN WITNESS WHEREOF, the undersigned has caused this Notice of Loan Prepayment to be executed by a duly authorized officer as of the date first written above.
AEROVIRONMENT, INC.,
a Delaware corporation
By:
Name:
Title:
1874658v5
EXHIBIT F
[FORM OF] SECURED PARTY DESIGNATION NOTICE
Date: _________, _____
To:Bank of America, N.A., as the Administrative Agent
Ladies and Gentlemen:
THIS SECURED PARTY DESIGNATION NOTICE is made by _______________________, a ______________ (the “Designor”), to Bank of America, N.A., as the Administrative Agent under that certain Credit Agreement referenced below. All capitalized terms not defined herein shall have the meaning ascribed to them in the Credit Agreement.
W I T N E S S E T H :
WHEREAS, AeroVironment, Inc., a Delaware corporation (the “Borrower”), the Guarantors party thereto, the Lenders from time to time party thereto, Bank of America, N.A., as the Administrative Agent, the Swingline Lender, and an L/C Issuer, and the other L/C Issuers party thereto, have entered into that certain Credit Agreement, dated as of February 19, 2021 (as amended, restated, amended and restated, extended, supplemented or otherwise modified from time to time, the “Credit Agreement”) pursuant to which certain loans and financial accommodations have been made to the Borrower;
WHEREAS, in connection with the Credit Agreement, a Lender or an Affiliate of a Lender is permitted to designate its [Cash Management Agreement][Swap Contract][Bilateral Letter of Credit] as a [“Secured Cash Management Agreement”][“Secured Hedge Agreement”][“Secured Bilateral Letter of Credit”] under the Credit Agreement and the Collateral Documents;
WHEREAS, the Credit Agreement requires that the Designor deliver this Secured Party Designation Notice to the Administrative Agent; and
WHEREAS, the Designor has agreed to execute and deliver this Secured Party Designation Notice.
NOW, THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1.Designation. The Designor hereby designates the [Cash Management Agreement][Swap Contract][Bilateral Letter of Credit] described on Schedule 1 hereto to be a [“Secured Cash Management Agreement”][“Secured Hedge Agreement”][“Secured Bilateral Letter of Credit”] and hereby represents and warrants to the Administrative Agent that such [Cash Management Agreement][Swap Contract][Bilateral Letter of Credit] satisfies all the requirements under the Loan Documents to be so designated. By executing and delivering this Secured Party Designation Notice, the Designor, as provided in the Credit Agreement, hereby agrees to be bound by all of the provisions of the Loan Documents which are applicable to it as a provider of a [Secured Cash Management Agreement][Secured Hedge Agreement][Secured Bilateral Letter of Credit] and hereby (a) confirms that it has received a copy of the Loan Documents and such other documents and information as it has deemed appropriate to make its own decision to enter into this Secured Party Designation Notice, (b) appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Credit Agreement, the other Loan Documents or any other instrument or document furnished
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pursuant thereto as are delegated to the Administrative Agent by the terms thereof, together with such powers as are incidental thereto (including the provisions of Section 9.01 of the Credit Agreement), and (c) agrees that it will be bound by the provisions of the Loan Documents and will perform in accordance with its terms all the obligations which by the terms of the Loan Documents are required to be performed by it as a provider of a [Cash Management Agreement][Swap Contract][Bilateral Letter of Credit]. Without limiting the foregoing, the Designor agrees to indemnify the Administrative Agent as contemplated by Section 11.04(c) of the Credit Agreement.
2.GOVERNING LAW. THIS SECURED PARTY DESIGNATION NOTICE and any claims, controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising out of or relating to this SECURED PARTY DESIGNATION NOTICE and the transactions contemplated hereby shall be governed by, and construed in accordance with, the law of the State of New York.
3.This Secured Party Designation Notice 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. Delivery of an executed counterpart of a signature page of this Secured Party Designation Notice by fax transmission or e-mail transmission (e.g., “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Secured Party Designation Notice. Subject to Section 11.18 of the Credit Agreement, this Secured Party Designation Notice may be in the form of an Electronic Record and may be executed using Electronic Signatures, including facsimile and .pdf, and shall be considered an original, and shall have the same legal effect, validity and enforceability as a paper record
[signature pages follow]
1874658v5
IN WITNESS WHEREOF, the undersigned have caused this Secured Party Designation Notice to be duly executed and delivered by their respective officers thereunto duly authorized as of the date first written above.
[DESIGNOR]
By:
Name:
Title:
BANK OF AMERICA, N.A.,
as the Administrative Agent
By:
Name:
Title:
1874658v5
Schedule 1
[Cash Management Agreement][Swap Contract][Bilateral Letter of Credit]
1874658v5
EXHIBIT G
[FORM OF] SOLVENCY CERTIFICATE
[Date]
Reference is hereby made to that certain Credit Agreement, dated as of February 19, 2021 (as amended, restated, amended and restated, extended, supplemented or otherwise modified from time to time prior to the date hereof, including in connection with [the [__] [Amendment]], the “Credit Agreement”), by and among AeroVironment, Inc., a Delaware corporation (the “Borrower”), the Guarantors party thereto, the Lenders party thereto, Bank of America, N.A., as the Administrative Agent, the Swingline Lender, and an L/C Issuer, and the other L/C Issuers party thereto. Capitalized terms used herein but not otherwise defined herein shall have the meanings provided to such terms in the Credit Agreement.
This Solvency Certificate (this “Solvency Certificate”) is being executed and delivered pursuant to Section [__] of [describe applicable document] (the “[__] [Amendment]”).
I, [__], the chief financial officer of the Borrower, solely in such capacity and not in an individual capacity, hereby certify that I am the chief financial officer of the Borrower and that I am familiar with the businesses and assets of the Borrower and its Subsidiaries, I have made such other investigations and inquiries as I have deemed appropriate and I am duly authorized to execute this Solvency Certificate on behalf of the Borrower pursuant to the Credit Agreement.
I further certify, solely in my capacity as chief financial officer of the Borrower and not in my individual capacity, as of the date hereof and after giving effect to the [transactions contemplated by the [__] [Amendment] and the Credit Agreement to be consummated on the date hereof], that (a) the fair value of the property of the Borrower and its Subsidiaries, on a consolidated basis, is greater than the total amount of liabilities, including contingent liabilities, of the Borrower and its Subsidiaries, on a consolidated basis, (b) the present fair salable value of the assets of the Borrower and its Subsidiaries, on a consolidated basis, is not less than the amount that will be required to pay the probable liability of the Borrower and its Subsidiaries, on a consolidated basis, on its debts as they become absolute and matured, (c) the Borrower and its Subsidiaries, on a consolidated basis, do not intend to, and do not believe that they will, incur debts or liabilities beyond the ability of the Borrower and its Subsidiaries, on a consolidated basis, to pay such debts and liabilities as they mature, (d) the Borrower and its Subsidiaries, on a consolidated basis, are not engaged in business or a transaction, and are not about to engage in business or a transaction, for which the property of the Borrower and its Subsidiaries, on a consolidated basis, would constitute an unreasonably small capital, and (e) the Borrower and its Subsidiaries, on a consolidated basis, are able to pay their debts and liabilities, contingent obligations and other commitments as they mature in the ordinary course of business. For purposes hereof, the amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
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IN WITNESS WHEREOF, I have executed this Solvency Certificate on the date first written above.
AeroVironment, Inc.,
a Delaware corporation
By:
Name:
Title:Chief Financial Officer