ASLE 8-K
AerSale Corp (ASLE)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
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Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrants under any of the following provisions (see General Instruction A.2. below):
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Securities registered pursuant to Section 12(b) of the Act:
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.
Item 1.01. Entry into a Material Definitive Agreement.
On July 25, 2023, AerSale Corporation (the “Company”) entered into Amendment No. 4 (the “Amendment”) to the Amended and Restated Credit Agreement, dated as of July 20, 2018, by and among the Company, the lenders and other parties from time to time party thereto, Synovus Bank, as documentation agent, and Wells Fargo Bank, National Administration, as administrative agent and collateral agent, pursuant to which, among other things, the lenders agreed to extend additional revolving credit commitments in an aggregate amount of $180,000,000 and allow for incremental revolving commitments not to exceed $20,000,000.
The description of the Amendment is qualified in its entirety by the terms of such agreement, which is incorporated herein by reference and attached to this report as Exhibit 1.1.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
Exhibit No. | Description |
1.1 | |
104 | Cover Page Interactive Data File (embedded within the Inline XBRL document). |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| AERSALE CORPORATION | |
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Date: July 31, 2023 | By: | /s/ James Fry |
| Name: | James Fry |
| Title: | Executive Vice President, General Counsel & Corporate Secretary |
EXECUTION VERSION
AMENDMENT No. 4 dated as of July 25, 2023 (this “Amendment”) to the Amended and Restated Credit Agreement dated as of July 20, 2018 (as amended, modified or otherwise supplemented through the date hereof, the “Credit Agreement”), by and among AERSALE, INC., a Florida corporation, AERSALE USA 1 LLC, a Delaware limited liability company, AERSALE COMPONENT SOLUTIONS, INC., a New Mexico corporation, AerSale Aviation Limited, an Irish private company limited by shares, AerSale 27469 Aviation Limited, an Irish private company limited by shares, AerSale 27910 Aviation Limited, an Irish private company limited by shares, CORAL GABLES 1 LIMITED, an Irish private company limited by shares, CORAL GABLES 2 LIMITED, an Irish private company limited by shares, AVBORNE ACCESSORY GROUP, INC., a Delaware corporation, AERSALE USA 2 SUB LLC, a Delaware limited liability company, QWEST AIR PARTS, LLC, a Florida limited liability company, Q2 AVIATION LLC, a Tennessee limited liability company, AIRCRAFT COMPOSITE TECHNOLOGIES, INC., a Florida corporation, and AERSALE IRELAND 1 LIMITED, an Irish private company limited by shares (each a “Borrower” and collectively, the “Borrowers”), AERSALE AVIATION INC., a Delaware corporation formerly known as AerSale Corp. (“AerSale Aviation”), AERSALE CORPORATION, a Delaware corporation (“AerSale Corporation”) and MONOCLE PARENT LLC, a Delaware limited liability company (“Monocle Parent” and together with AerSale Aviation and AerSale Corporation, each a “Parent Company” and collectively, the “Parent Companies”; the Parent Companies together with the Borrowers are referred to herein as the “Loan Parties” and each a “Loan Party”), the Lenders signatory hereto, and WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent and Lender (the “Agent”). Capitalized terms used herein and not otherwise defined shall have the respective meanings ascribed thereto in the Credit Agreement.
R E C I T A L S
WHEREAS, the Borrowers, Parent Companies, Agent and the Lenders signatory thereto are parties to the Credit Agreement;
WHEREAS, the Borrowers request that the Agent and the Lenders agree to make certain amendments to the Credit Agreement;
WHEREAS, for the amendments contemplated in this Amendment to be effective, Section 14.1(a) of the Credit Agreement requires the consent of all Lenders;
WHEREAS, PNC Bank, National Association and HSBC Bank USA, National Association, are each referred to herein as a “New Lender” and collectively the “New Lenders”;
WHEREAS, City National Bank of Florida and Fifth Third Bank, National Association, are each referred to herein as an “Exiting Lender” and collectively the “Exiting Lenders”;
WHEREAS, the Lenders signatory hereto constitute all Lenders under the Credit Agreement; and
[AerSale] Fourth Amendment
WHEREAS, the Agent and the Lenders are willing to agree to such amendments on the terms and subject to the conditions set forth herein.
NOW THEREFORE, in consideration of the premises, the sum of $1.00 and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
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[AerSale] Fourth Amendment
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[AerSale] Fourth Amendment
The release of the signature pages to this Amendment executed by the Agent and each Lender shall be conclusive evidence that each of the conditions listed above have been satisfied and/or waived in writing by the Agent and each Lender.
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[SIGNATURES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have each caused this Amendment to be duly executed by their duly authorized officers or attorney-in-fact, as the case may be, all as of the day and year first above written.
AERSALE, INC.
By:/s/ Nicolas Finazzo
Name:Nicolas Finazzo
Title:Chairman and Chief Executive Officer
AERSALE USA 1 LLC
By:/s/ Nicolas Finazzo
Name:Nicolas Finazzo
Title:Chairman and Chief Executive Officer
AERSALE COMPONENT SOLUTIONS, INC.
By:/s/ Nicolas Finazzo
Name:Nicolas Finazzo
Title:Chairman and Chief Executive Officer
[Signature Page to Amendment No. 4 to Amended and Restated Credit Agreement]
Signed and delivered as a deed for and on behalf of AERSALE AVIATION LIMITED
By:/s/ Jonathan Law
Name:Jonathan Law
Title:Attorney-in-fact
in the presence of:
/s/ Kieran Foley
Witness Signature
Kieran Foley
Witness Name
[* * *]
Address
Designer
Occupation
[Signature Page to Amendment No. 4 to Amended and Restated Credit Agreement]
Signed and delivered as a deed for and on behalf of AERSALE 27469 AVIATION LIMITED
By:/s/ Jonathan Law
Name:Jonathan Law
Title:Attorney-in-fact
in the presence of:
/s/ Kieran Foley
Witness Signature
Kieran Foley
Witness Name
[* * *]
Address
Designer
Occupation
[Signature Page to Amendment No. 4 to Amended and Restated Credit Agreement]
Signed and delivered as a deed for and on behalf of AERSALE 27910 AVIATION LIMITED
By:/s/ Jonathan Law
Name:Jonathan Law
Title:Attorney-in-fact
in the presence of:
/s/ Kieran Foley
Witness Signature
Kieran Foley
Witness Name
[* * *]
Address
Designer
Occupation
[Signature Page to Amendment No. 4 to Amended and Restated Credit Agreement]
Signed and delivered as a deed for and on behalf of CORAL GABLES 1 LIMITED
By:/s/ Jonathan Law
Name:Jonathan Law
Title:Attorney-in-fact
in the presence of:
/s/ Kieran Foley
Witness Signature
Kieran Foley
Witness Name
[* * *]
Address
Designer
Occupation
Signed and delivered as a deed for and on behalf of CORAL GABLES 2 LIMITED
By:/s/ Jonathan Law
Name:Jonathan Law
Title:Attorney-in-fact
in the presence of:
/s/ Kieran Foley
Witness Signature
Kieran Foley
Witness Name
[* * *]
Address
Designer
Occupation
[Signature Page to Amendment No. 4 to Amended and Restated Credit Agreement]
Signed and delivered as a deed for and on behalf of AERSALE IRELAND 1 LIMITED
By:/s/ Jonathan Law
Name:Jonathan Law
Title:Attorney-in-fact
in the presence of:
/s/ Kieran Foley
Witness Signature
Kieran Foley
Witness Name
[* * *]
Address
Designer
Occupation
AVBORNE ACCESSORY GROUP, INC.
By:/s/ Nicolas Finazzo
Name:Nicolas Finazzo
Title:Chairman and Chief Executive Officer
[Signature Page to Amendment No. 4 to Amended and Restated Credit Agreement]
AERSALE USA 2 SUB LLC
By:/s/ Nicolas Finazzo
Name:Nicolas Finazzo
Title:Chief Executive Officer
QWEST AIR PARTS, LLC
By:/s/ Nicolas Finazzo
Name:Nicolas Finazzo
Title:Chief Executive Officer
Q2 AVIATION LLC,
By:/s/ Nicolas Finazzo
Name:Nicolas Finazzo
Title:Chief Executive Officer
AIRCRAFT COMPOSITE TECHNOLOGIES, INC.
By:/s/ Nicolas Finazzo
Name:Nicolas Finazzo
Title:Chairman and Chief Executive Officer
[Signature Page to Amendment No. 4 to Amended and Restated Credit Agreement]
AerSale AVIATION INC.
By: /s/ Nicolas Finazzo
Name: Nicolas Finazzo
Title: Chairman and Chief Executive Officer
AerSale CORPORATION
By: /s/ Nicolas Finazzo
Name: Nicolas Finazzo
Title: Chairman, Chief Executive Officer, Division President, TechOps
monocle parent llc
By: /s/ Nicolas Finazzo
Name: Nicolas Finazzo
Title: Chief Executive Officer
[Signature Page to Amendment No. 4 to Amended and Restated Credit Agreement]
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Agent and a Lender
By:/s/ Cameron Scott
Name: Cameron Scott
Title: Director
[Signature Page to Amendment No. 4 to Amended and Restated Credit Agreement]
CIBC BANK USA, as a Lender and as Syndication Agent
By:/s/ Javier Gutierrez
Name: Javier Gutierrez
Title: Managing Director
[Signature Page to Amendment No. 4 to Amended and Restated Credit Agreement]
FIRST HORIZON BANK, as a Lender
By:/s/ Demetrio Papatriantafyllou
Name: Demetrio Papatriantafyllou
Title: VP–Corporate Lending
[Signature Page to Amendment No. 4 to Amended and Restated Credit Agreement]
SYNOVUS BANK, as a Lender and as Documentation Agent
By:/s/ Anita Aedo
Name: Anita Aedo
Title: Senior Vice President
[Signature Page to Amendment No. 4 to Amended and Restated Credit Agreement]
HSBC BANK USA, NATIONAL ASSOCIATION, as a Lender
By:/s/ Camilo Urquijo
Name: Camilo Urquijo
Title: AVP-Global Relationship Manager
[Signature Page to Amendment No. 4 to Amended and Restated Credit Agreement]
PNC BANK, NATIONAL ASSOCIATION, as a Lender
By:/s/ Oscar A. Lopez
Name: Oscar A. Lopez
Title: Senior Vice President
[Signature Page to Amendment No. 4 to Amended and Restated Credit Agreement]
WELLS FARGO CAPITAL FINANCE (UK) LIMITED, as a Lender
By:/s/ Patricia Del Busto
Name:Patricia Delbusto
Title: Authorized Signatory
[Signature Page to Amendment No. 4 to Amended and Restated Credit Agreement]
EXHIBIT A
Conformed Credit Agreement
See attached.
Exhibit A to Amendment No. 4
|
AMENDED AND RESTATED CREDIT AGREEMENT
by and among
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent,
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Lead Arranger,
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Book Runner,
as Syndication Agent,
as Documentation Agent,
THE LENDERS THAT ARE PARTIES HERETO
as the Lenders,
AERSALE CORPORATION,
as Parent,
AERSALE, INC. and
THE OTHER BORROWERS THAT ARE PARTIES HERETO
as Borrowers
Dated as of July 20, 2018
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Table of Contents
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EXHIBITS AND SCHEDULES
Exhibit A-1Form of Assignment and Acceptance
Exhibit B-1Form of Borrowing Base Certificate
Exhibit B-2Form of Bank Product Provider Agreement
Exhibit C-1Form of Compliance Certificate
Exhibit L-1Form of SOFR Notice
Exhibit J-1Form of Joinder
Exhibit P-1Form of Perfection Certificate
Exhibit U-1Form of U.S. Tax Compliance Certificate
Schedule A-1Agent’s Account
Schedule A-2Authorized Persons
Schedule C-1Commitments
Schedule D-1Designated Account
Schedule E-1Eligible Account Jurisdictions
Schedule E-2 | Eligible Parts, Eligible Whole Aircraft Collateral and Eligible Whole Engine Collateral Locations |
Schedule E-3Existing Letters of Credit
Schedule P-1Permitted Investments
Schedule P-2Permitted Liens
Schedule R-1Real Property Collateral
Schedule 3.1Conditions Precedent
Schedule 3.6Conditions Subsequent
Schedule 4.1(b)Capitalization of Borrowers
Schedule 4.1(c)Capitalization of Borrowers’ Subsidiaries
Schedule 4.1(d)Subscriptions, Options, Warrants, Calls
Schedule 4.11Environmental Matters
Schedule 4.14Permitted Indebtedness
Schedule 4.27Material Contracts
Schedule 5.1Financial Statements, Reports, Certificates
Schedule 5.2Collateral Reporting
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[AerSale] Amended and Restated Credit Agreement
AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDED AND RESTATED CREDIT AGREEMENT is entered into as of July 20, 2018 by and among the lenders identified on the signature pages hereof (each of such lenders, together with its successors and permitted assigns, is referred to hereinafter as a “Lender”, as that term is hereinafter further defined), WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as administrative agent for each member of the Lender Group and the Bank Product Providers (in such capacity, together with its successors and assigns in such capacity, “Agent”), WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as lead arranger (in such capacity, together with its successors and assigns in such capacity, the “Lead Arranger”), WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as book runner (in such capacity, together with its successors and assigns, the “Book Runner”), CIBC BANK USA, as Syndication Agent (in such capacity, together with its successors and assigns in such capacity, the “Syndication Agent”), SYNOVUS BANK, as Documentation Agent (in such capacity, together with its successors and assigns in such capacity, the “Documentation Agent”), AERSALE CORPORATION, a Delaware corporation (“Parent”), MONOCLE PARENT LLC, a Delaware limited liability company (“Monocle Parent”), AERSALE AVIATION INC., a Delaware corporation (“AerSale Aviation” and together with Parent and Monocle Parent, the “Parent Companies” and each a “Parent Company”), AERSALE, INC., a Florida corporation (“AerSale”), the Subsidiaries of AerSale identified on the signature pages hereof as “Borrowers”, and those additional entities that hereafter become parties hereto as Borrowers in accordance with the terms hereof by executing the form of Joinder attached hereto as Exhibit J-1 (AerSale and such Subsidiaries and other entities, each, a “Borrower” and individually and collectively, jointly and severally, the “Borrowers”).
Borrowers, Agent and certain lenders are party to that certain Credit Agreement dated as of April 11, 2011 (as amended, the “Existing Credit Agreement”).
The parties hereto wish to completely amend, restate and modify (but not extinguish) the Existing Credit Agreement through the execution of this Agreement.
Administrative Borrower has requested, and Agent and Lenders have agreed, to make available to Borrowers, certain revolving and term credit facilities upon and subject to the terms and conditions set forth in this Agreement.
The parties agree as follows:
“Acceptable Appraisal” means, with respect to an appraisal of Whole Aircraft, Whole Engines or Parts, the most recent appraisal of such property received by Agent (a) from an internationally recognized firm of independent aircraft appraisers satisfactory to Agent in its Permitted Discretion (which includes Sage-Popovich, Inc.), (b) the scope and methodology (including, to the extent relevant, any sampling procedure employed by such appraisal company) of which are reasonably consistent with those of the appraisals most recently delivered to Agent prior to the Closing Date or are otherwise agreed to by Agent in its Permitted Discretion and (c) prepared on the basis of customary market practices and procedures and any relevant guidelines and the code of ethics established by the International Society of Transport Aircraft
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[AerSale] Amended and Restated Credit Agreement
Traders.
“Account” means an account (as that term is defined in the Code).
“Account Debtor” means any Person who is obligated on an Account, chattel paper, or a general intangible.
“Account Party” has the meaning specified therefor in Section 2.11(h) of this Agreement.
“Accounting Change” means a change in accounting principles required by the promulgation of any rule, regulation, pronouncement or opinion by the Financial Accounting Standards Board of the American Institute of Certified Public Accountants (or successor thereto or any agency with similar functions).
“Acquired Indebtedness” means Indebtedness of a Person whose assets or Equity Interests are acquired by a Loan Party or any of its Subsidiaries in a Permitted Acquisition with respect to which the Payment Conditions are satisfied; provided, that such Indebtedness was not incurred in connection with, or in contemplation of, such Permitted Acquisition.
“Acquisition” means (a) the purchase or other acquisition by a Person or its Subsidiaries of all or substantially all of the assets of (or any division or business line of) any other Person, or (b) the purchase or other acquisition (whether by means of a merger, consolidation, or otherwise) by a Person or its Subsidiaries of all of the Equity Interests of any other Person.
“Additional Documents” has the meaning specified therefor in Section 5.12 of this Agreement.
“Adjusted Term SOFR” means, for purposes of any calculation, the rate per annum equal to (a) Term SOFR for such calculation plus (b) the Term SOFR Adjustment; provided that if Adjusted Term SOFR as so determined shall ever be less than the Floor, then Adjusted Term SOFR shall be deemed to be the Floor.
“Administrative Borrower” has the meaning specified therefor in Section 17.13 of this Agreement.
“Administrative Questionnaire” has the meaning specified therefor in Section 13.1(a) of this Agreement.
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affected Lender” has the meaning specified therefor in Section 2.14(b) of this Agreement.
“Affiliate” means, as applied to any Person, any other Person who controls, is controlled by, or is under common control with, such Person. For purposes of this definition, “control” means the possession, directly or indirectly through one or more intermediaries, of the power to direct the management and policies of a Person, whether through the ownership of Equity Interests, by contract, or otherwise; provided, that for purposes of the definition of Eligible Accounts and Section 6.10 of this Agreement: (a) if any Person owns directly or indirectly 10% or more of the Equity Interests having ordinary voting power for the election of directors or other members of the governing body of a Person or 10% or more of the partnership
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[AerSale] Amended and Restated Credit Agreement
or other ownership interests of a Person (other than as a limited partner of such Person) then both such Persons shall be deemed Affiliates of each other, (b) each director (or comparable manager) of a Person shall be deemed to be an Affiliate of such Person, and (c) each partnership in which a Person is a general partner shall be deemed an Affiliate of such Person.
“Agent” has the meaning specified therefor in the preamble to this Agreement.
“Agent-Related Persons” means Agent, together with its Affiliates, officers, directors, employees, attorneys, and agents.
“Agent’s Account” means the Deposit Account of Agent identified on Schedule A-1 to this Agreement (or such other Deposit Account of Agent that has been designated as such, in writing, by Agent to Borrowers and the Lenders).
“Agent’s Liens” means the Liens granted by each Loan Party or its Subsidiaries to Agent under the Loan Documents and securing the Obligations.
“Agreement” means this Amended and Restated Credit Agreement, as amended, restated, amended and restated, supplemented or otherwise modified from time to time.
“Aircraft Mortgage” means each Aircraft Mortgage and Security Agreement entered into and delivered, at any time, by any Borrower or any trustee or guarantor for the benefit of any Borrower in respect of any Whole Aircraft.
“Aircraft Reserves” means, as of any date of determination, (a) Landlord Reserves in respect of Whole Aircraft, and (b) those reserves that Agent deems necessary or appropriate, in its Permitted Discretion and subject to Section 2.1(c), to establish and maintain with respect to Eligible Whole Aircraft Collateral, including based on the results of appraisals.
“Anti-Corruption Laws” means the FCPA, the U.K. Bribery Act of 2010, as amended, and all other applicable laws and regulations or ordinances concerning or relating to bribery, money laundering or corruption in any jurisdiction in which any Loan Party or any of its Subsidiaries or Affiliates is located or is doing business.
“Anti-Money Laundering Laws” means the applicable laws or regulations in any jurisdiction in which any Loan Party or any of its Subsidiaries or Affiliates is located or is doing business that relates to money laundering, any predicate crime to money laundering, or any financial record keeping and reporting requirements related thereto.
“Applicable Margin” means, as of any date of determination and with respect to Base Rate Loans or SOFR Loans, as applicable, the applicable margin set forth in the following table that corresponds to the Average Excess Availability of Borrowers for the most recently completed quarter; provided, that for the period from the Second Amendment Effective Date through and including March 31, 2021, the Applicable Margin shall be set at the margin in the row styled “Level III”; provided further, that any time an Event of Default has occurred and is continuing, the Applicable Margin shall be set at the margin in the row styled “Level I”:
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[AerSale] Amended and Restated Credit Agreement
Tier | Quarterly Average Excess Availability | Applicable Margin for SOFR Loans which are Revolving Loans (as applicable, the “Revolving Loan SOFR Rate Margin”) | Applicable Margin for Base Rate Loans which are Revolving Loans (as applicable, the “Revolving Loan Base Rate Margin”) |
|---|---|---|---|
I | Less than 33% of the Maximum Revolver Amount | 2.75 percentage points | 1.75 percentage points |
II | Less than or equal to 66% of the Maximum Revolver Amount but greater than or equal to 33% of the Maximum Revolver Amount | 2.50 percentage points | 1.50 percentage points |
III | Greater than 66% of the Maximum Revolver Amount | 2.25 percentage points | 1.25 percentage points |
The Applicable Margin shall be re-determined as of the first day of each quarter.
“Application Event” means the occurrence of (a) a failure by Borrowers to repay all of the Obligations in full on the Maturity Date, or (b) an Event of Default and the election by Agent or the Required Lenders to require that payments and proceeds of Collateral be applied pursuant to Section 2.4(b)(iii) of this Agreement.
“Assignee” has the meaning specified therefor in Section 13.1(a) of this Agreement.
“Assignment and Acceptance” means an Assignment and Acceptance Agreement substantially in the form of Exhibit A-1 to this Agreement.
“Authorized Person” means any one of the individuals identified as an officer of a Borrower on Schedule A-2 to this Agreement, or any other individual identified by Administrative Borrower as an authorized person and authenticated through Agent’s electronic platform or portal in accordance with its procedures for such authentication.
“Availability” means, as of any date of determination, the amount that Borrowers are entitled to borrow as Revolving Loans under Section 2.1 of this Agreement (after giving effect to the then outstanding
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[AerSale] Amended and Restated Credit Agreement
Revolver Usage).
“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (a) if such Benchmark is a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an interest period pursuant to this Agreement or (b) otherwise, any payment period for interest calculated with reference to such Benchmark (or component thereof) that is or may be used for determining any frequency of making payments of interest calculated with reference to such Benchmark, in each case, as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to Section 2.13(c)(iv).
“Average Excess Availability” means, with respect to any period, the sum of the aggregate amount of Excess Availability for each day in such period (as calculated by Agent as of the end of each respective day) divided by the number of days in such period.
“Average Revolver Usage” means, with respect to any period, the sum of the aggregate amount of Revolver Usage for each day in such period (calculated as of the end of each respective day) divided by the number of days in such period.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation” means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country from time to time that is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Bank Product” means any one or more of the following financial products or accommodations extended to any Loan Party or any of its Subsidiaries by a Bank Product Provider: (a) credit cards (including commercial cards (including so-called “purchase cards”, “procurement cards” or “p-cards”)), (b) payment card processing services, (c) debit cards, (d) stored value cards, (e) Cash Management Services, or (f) transactions under Hedge Agreements.
“Bank Product Agreements” means those agreements entered into from time to time by any Loan Party or any of its Subsidiaries with a Bank Product Provider in connection with the obtaining of any of the Bank Products.
“Bank Product Collateralization” means providing cash collateral (pursuant to documentation reasonably satisfactory to Agent) to be held by Agent for the benefit of the Bank Product Providers (other than the Hedge Providers) in an amount determined by Agent as sufficient to satisfy the reasonably estimated credit exposure, operational risk or processing risk with respect to the then existing Bank Product Obligations (other than Hedge Obligations).
“Bank Product Obligations” means (a) all obligations, liabilities, reimbursement obligations, fees,
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[AerSale] Amended and Restated Credit Agreement
or expenses owing by each Loan Party and its Subsidiaries to any Bank Product Provider pursuant to or evidenced by a Bank Product Agreement and irrespective of whether for the payment of money, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, (b) all Hedge Obligations, and (c) all amounts that Agent or any Lender is obligated to pay to a Bank Product Provider as a result of Agent or such Lender purchasing participations from, or executing guarantees or indemnities or reimbursement obligations to, a Bank Product Provider with respect to the Bank Products provided by such Bank Product Provider to a Loan Party or its Subsidiaries.
“Bank Product Provider” means any Lender or any of its Affiliates, including each of the foregoing in its capacity, if applicable, as a Hedge Provider; provided, that no such Person (other than Wells Fargo or its Affiliates) shall constitute a Bank Product Provider with respect to a Bank Product unless and until Agent receives a Bank Product Provider Agreement from such Person (a) on or prior to the Closing Date (or such later date as Agent shall agree to in writing in its sole discretion) with respect to Bank Products provided on or prior to the Closing Date, or (b) on or prior to the date that is 10 days after the provision of such Bank Product to a Loan Party or its Subsidiaries (or such later date as Agent shall agree to in writing in its sole discretion) with respect to Bank Products provided after the Closing Date; provided further, that if, at any time, a Lender ceases to be a Lender under this Agreement (prior to the payment in full of the Obligations), then, from and after the date on which it so ceases to be a Lender thereunder, neither it nor any of its Affiliates shall constitute Bank Product Providers and the obligations with respect to Bank Products provided by such former Lender or any of its Affiliates shall no longer constitute Bank Product Obligations.
“Bank Product Provider Agreement” means an agreement in substantially the form attached hereto as Exhibit B-2 to this Agreement, in form and substance reasonably satisfactory to Agent, duly executed by the applicable Bank Product Provider, the applicable Loan Parties, and Agent.
“Bank Product Reserves” means, as of any date of determination, those reserves that Agent deems necessary or appropriate to establish (based upon the Bank Product Providers’ determination of the liabilities and obligations of each Loan Party and its Subsidiaries in respect of Bank Product Obligations) in respect of Bank Products then provided or outstanding.
“Bankruptcy Code” means title 11 of the United States Code, as in effect from time to time.
“Base Rate” means the greatest of (a) the Federal Funds Rate plus ½%, (b) Term SOFR (which rate shall be calculated based upon an Interest Period of one month and shall be determined on a daily basis), plus one percentage point, and (c) the rate of interest announced, from time to time, within Wells Fargo at its principal office in San Francisco as its “prime rate”, with the understanding that the “prime rate” is one of Wells Fargo’s base rates (not necessarily the lowest of such rates) and serves as the basis upon which effective rates of interest are calculated for those loans making reference thereto and is evidenced by the recording thereof after its announcement in such internal publications as Wells Fargo may designate (and, if any such announced rate is below zero, then the rate determined pursuant to this clause (c) shall be deemed to be zero).
“Base Rate Loan” means each portion of the Revolving Loans that bears interest at a rate determined by reference to the Base Rate.
“Base Rate Margin” means the Revolving Loan Base Rate Margin.
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[AerSale] Amended and Restated Credit Agreement
“Benchmark” means, initially, the Term SOFR Reference Rate; provided that if a Benchmark Transition Event has occurred with respect to the Term SOFR Reference Rate or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 2.13(c)(i).
“Benchmark Replacement” means, with respect to any Benchmark Transition Event, the sum of: (a) the alternate benchmark rate that has been selected by Agent and Administrative Borrower giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement to the then-current Benchmark for Dollar-denominated syndicated credit facilities and (b) the related Benchmark Replacement Adjustment; provided that, if such Benchmark Replacement as so determined would be less than the Floor, such Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.
“Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Available Tenor, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by Agent and Administrative Borrower giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities.
“Benchmark Replacement Date” means the earlier to occur of the following events with respect to the then-current Benchmark:
For the avoidance of doubt, the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
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[AerSale] Amended and Restated Credit Agreement
“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark:
For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Start Date” means, in the case of a Benchmark Transition Event, the earlier of (a) the applicable Benchmark Replacement Date and (b) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the 90th day prior to the expected date of such event as of such public statement or publication of information (or if the expected date of such prospective event is fewer than 90 days after such statement or publication, the date of such statement or publication).
“Benchmark Unavailability Period” means the period (if any) (x) beginning at the time that a Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.13(c)(i) and (y) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.13(c)(i).
“BHC Act Affiliate” of a Person means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such Person.
“Board of Directors” means, as to any Person, the board of directors (or comparable managers) of
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[AerSale] Amended and Restated Credit Agreement
such Person, or any committee thereof duly authorized to act on behalf of the board of directors (or comparable managers).
“Book Runner” has the meaning set forth in the preamble to this Agreement.
“Borrower” and “Borrowers” have the respective meanings specified therefor in the preamble to this Agreement.
“Borrower Materials” has the meaning specified therefor in Section 17.9(c) of this Agreement.
“Borrowing” means a borrowing consisting of Revolving Loans made on the same day by the Lenders (or Agent on behalf thereof), or by Swing Lender in the case of a Swing Loan, or by Agent in the case of an Extraordinary Advance.
“Borrowing Base” means, as of any date of determination, the result of:
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[AerSale] Amended and Restated Credit Agreement
“Borrowing Base Certificate” means a certificate in the form of Exhibit B-1 to this Agreement.
“Business Day” means any day that is not a Saturday, Sunday or other day on which banks are authorized or required to close in the state of New York.
“Cape Town Convention” means the Convention and the Protocol.
“Capital Expenditures” means, with respect to any Person for any period, the amount of all expenditures by such Person and its Subsidiaries during such period that are capital expenditures as determined in accordance with GAAP, whether such expenditures are paid in cash or financed, but excluding, without duplication, (a) with respect to the purchase price of assets that are purchased substantially contemporaneously with the trade-in of existing assets during such period, the amount that the gross amount of such purchase price is reduced by the credit granted by the seller of such assets for the assets being traded in at such time, and (b) expenditures made during such period to consummate one or more Permitted Acquisitions.
“Capitalized Lease Obligation” means that portion of the obligations under a Capital Lease that is required to be capitalized in accordance with GAAP.
“Capital Lease” means a lease that is required to be capitalized for financial reporting purposes in accordance with GAAP.
“Cash Equivalents” means (a) marketable direct obligations issued by, or unconditionally guaranteed by, the United States or issued by any agency thereof and backed by the full faith and credit of the United States, in each case maturing within one year from the date of acquisition thereof, (b) marketable direct obligations issued or fully guaranteed by any state of the United States or any political subdivision of any such state or any public instrumentality thereof maturing within one year from the date of acquisition thereof and, at the time of acquisition, having one of the two highest ratings obtainable from either Standard & Poor’s Rating Group (“S&P”) or Moody’s Investors Service, Inc. (“Moody’s”), (c) commercial paper maturing no more than 270 days from the date of creation thereof and, at the time of acquisition, having a rating of at least A-1 from S&P or at least P-1 from Moody’s, (d) certificates of deposit, time deposits, overnight bank deposits or bankers’ acceptances maturing within one year from the date of acquisition thereof issued by any bank organized under the laws of the United States or any state thereof or the District of Columbia or any United States branch of a foreign bank having at the date of acquisition thereof combined capital and surplus of not less than $1,000,000,000, (e) Deposit Accounts maintained with (i) any bank that satisfies the criteria described in clause (d) above, or (ii) any other bank organized under the laws of the United States or any state thereof so long as the full amount maintained with any such other bank is insured by the Federal Deposit Insurance Corporation, (f) repurchase obligations of any commercial bank satisfying the requirements of clause (d) of this definition or of any recognized securities dealer having combined capital and surplus of not less than $1,000,000,000, having a term of not more than seven days, with respect to securities satisfying the criteria in clauses (a) or (d) above, (g) debt securities with maturities of six months or less from the date of acquisition backed by standby letters of credit issued by any commercial bank satisfying the criteria described in clause (d) above, and (h) Investments in money market funds substantially all of whose assets are invested in the types of assets described in clauses (a) through (g) above.
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[AerSale] Amended and Restated Credit Agreement
“Cash Management Services” means any cash management or related services including treasury, depository, return items, overdraft, controlled disbursement, merchant store value cards, e-payables services, electronic funds transfer, interstate depository network, automatic clearing house transfer (including the Automated Clearing House processing of electronic funds transfers through the direct Federal Reserve Fedline system) and other cash management arrangements.
“CFC” means a controlled foreign corporation (as that term is defined in the IRC) in which any Loan Party is a “United States shareholder” within the meaning of Section 951(b) of the IRC.
“Change in Law” means the occurrence after the date of this Agreement of: (a) the adoption or effectiveness of any law, rule, regulation, judicial ruling, judgment or treaty, (b) any change in any law, rule, regulation, judicial ruling, judgment or treaty or in the administration, interpretation, implementation or application by any Governmental Authority of any law, rule, regulation, guideline or treaty, or (c) the making or issuance by any Governmental Authority of any request, rule, guideline or directive, whether or not having the force of law; provided, that notwithstanding anything in this Agreement to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith, and (ii) all requests, rules, guidelines or directives concerning capital adequacy promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities shall, in each case, be deemed to be a “Change in Law,” regardless of the date enacted, adopted or issued.
“Change of Control” means that:
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[AerSale] Amended and Restated Credit Agreement
“Closing Date” means the date of the making of the initial Loans (or other extensions of credit) under this Agreement.
“Code” means the New York Uniform Commercial Code, as in effect from time to time.
“Collateral” means all assets and interests in assets and proceeds thereof now owned or hereafter acquired by any Loan Party or its Subsidiaries in or upon which a Lien is granted by such Person in favor of Agent or the Lenders under any of the Loan Documents.
“Collateral Access Agreement” means a landlord waiver, bailee letter, or acknowledgement agreement of any lessor, warehouseman, processor, consignee, or other Person in possession of, having a Lien upon, or having rights or interests in any Loan Party’s or its Subsidiaries’ books and records, Equipment, or Inventory, in each case, in form and substance reasonably satisfactory to Agent.
“Collections” means, all cash, checks, notes, instruments, and other items of payment (including insurance proceeds, cash proceeds of asset sales, rental proceeds and tax refunds).
“Commitment” means, with respect to each Lender, its Revolver Commitment and, with respect to all Lenders, their Revolver Commitments, in each case as such Dollar amounts are set forth beside such Lender’s name under the applicable heading on Schedule C-1 to this Agreement or in the Assignment and Acceptance pursuant to which such Lender became a Lender under this Agreement, as such amounts may be reduced or increased from time to time pursuant to assignments made in accordance with the provisions of Section 13.1 of this Agreement.
“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
“Compliance Certificate” means a certificate substantially in the form of Exhibit C-1 to this Agreement delivered by the senior vice president of finance, vice president of finance, chief financial officer or treasurer of Administrative Borrower to Agent; provided that, as of the Closing Date, Agent is conducting due diligence on the senior vice president of finance and vice president of finance, and such officers shall only be permitted to execute and deliver a Compliance Certificate in satisfaction of the requirements hereunder upon Agent’s satisfactory completion of such due diligence.
“Confidential Information” has the meaning specified therefor in Section 17.9(a) of this Agreement.
“Conforming Changes” means, with respect to either the use or administration of Term SOFR or the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of
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[AerSale] Amended and Restated Credit Agreement
“Business Day,” the definition of “U.S. Government Securities Business Day,” the definition of “Interest Period” or any similar or analogous definition (or the addition of a concept of “interest period”), timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of Section 2.15 of this Agreement and other technical, administrative or operational matters) that the Agent decides may be appropriate to reflect the adoption and implementation of any such rate or to permit the use and administration thereof by the Agent in a manner substantially consistent with market practice (or, if the Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Agent determines that no market practice for the administration of any such rate exists, in such other manner of administration as the Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
“Control Agreement” means a control agreement, in form and substance reasonably satisfactory to Agent, executed and delivered by a Loan Party or one of its Subsidiaries, Agent, and the applicable securities intermediary (with respect to a Securities Account) or bank (with respect to a Deposit Account).
“Convention” means The Convention on International Interests in Mobile Equipment, concluded in Cape Town, South Africa, on November 16, 2001 (utilizing the English-language version thereof).
“Copyright Security Agreement” has the meaning specified therefor in the Guaranty and Security Agreement.
“Covered Entity” means any of the following:
“Covered Party” has the meaning specified therefor in Section 17.15 of this Agreement.
“Curative Equity” means the common equity contributions made by Sponsor to Parent in immediately available funds which Parent contributes as additional common equity contributions to Borrowers in immediately available funds and which is designated “Curative Equity” by Borrowers under Section 9.3 of this Agreement at the time it is contributed. For the avoidance of doubt, the forgiveness of antecedent debt (whether Indebtedness, trade payables, or otherwise) shall not constitute Curative Equity.
“Default” means an event, condition, or default that, with the giving of notice, the passage of time, or both, would be an Event of Default.
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“Defaulting Lender” means any Lender that (a) has failed to (i) fund all or any portion of its Loans
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[AerSale] Amended and Restated Credit Agreement
within two Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies Agent and Administrative Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable Default or Event of Default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to Agent, Issuing Bank, or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit) within two Business Days of the date when due, (b) has notified any Borrower, Agent or Issuing Bank in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable Default or Event of Default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by Agent or Administrative Borrower, to confirm in writing to Agent and Administrative Borrower that it will comply with its prospective funding obligations hereunder (provided, that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by Agent and Administrative Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of any Insolvency Proceeding, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity, or (iii) become the subject of a Bail-in Action; provided, that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender upon delivery of written notice of such determination to Administrative Borrower, Issuing Bank, and each Lender.
“Defaulting Lender Rate” means (a) for the first three days from and after the date the relevant payment is due, the Base Rate, and (b) thereafter, the interest rate then applicable to Revolving Loans that are Base Rate Loans (inclusive of the Base Rate Margin applicable thereto).
“Deposit Account” means any deposit account (as that term is defined in the Code).
“Designated Account” means the Deposit Account of Administrative Borrower identified on Schedule D-1 to this Agreement (or such other Deposit Account of Administrative Borrower located at Designated Account Bank that has been designated as such, in writing, by Borrowers to Agent).
“Designated Account Bank” has the meaning specified therefor in Schedule D-1 to this Agreement (or such other bank that is located within the United States that has been designated as such, in writing, by Borrowers to Agent).
“Dilution” means, as of any date of determination, a percentage, based upon the experience of the immediately prior 12 months, that is the result of dividing the Dollar amount of (a) bad debt write-downs, discounts, advertising allowances, credits, or other dilutive items with respect to Borrowers’ Accounts
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[AerSale] Amended and Restated Credit Agreement
during such period, by (b) Borrowers’ billings with respect to Accounts during such period.
“Dilution Reserve” means, as of any date of determination, an amount sufficient to reduce the advance rate against Eligible Accounts by the extent to which Dilution is in excess of 5%.
“Disqualified Equity Interests” means any Equity Interests that, by their terms (or by the terms of any security or other Equity Interests into which they are convertible or for which they are exchangeable), or upon the happening of any event or condition (a) matures or are mandatorily redeemable (other than solely for Qualified Equity Interests), pursuant to a sinking fund obligation or otherwise (except as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior repayment in full of the Loans and all other Obligations that are accrued and payable and the termination of the Commitments), (b) are redeemable at the option of the holder thereof (other than solely for Qualified Equity Interests), in whole or in part, (c) provide for the scheduled payments of dividends in cash, or (d) are or become convertible into or exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified Equity Interests, in each case, prior to the date that is 180 days after the Maturity Date.
“Disqualified Institution” means, on any date, (a) any Person designated by Administrative Borrower as a “Disqualified Institution” by written notice delivered to Agent prior to the date hereof, and (b) those Persons who are direct competitors of the Borrowers identified in writing by Administrative Borrower to Agent from time to time, subject to the written consent of Agent; provided, that “Disqualified Institutions” shall exclude any Person that Administrative Borrower has designated as no longer being a “Disqualified Institution” by written notice delivered to Agent from time to time; provided further, that in connection with any assignment or participation, the Assignee or Participant with respect to such proposed assignment or participation that is an investment bank, a commercial bank, a finance company, a fund, or other Person which merely has an economic interest in any such direct competitor, and is not itself such a direct competitor of Borrower or its Subsidiaries, shall not be deemed to be a Disqualified Institution for the purposes of this definition.
“Documentation Agent” has the meaning set forth in the preamble to this Agreement.
“Dollars” or “$” means United States dollars.
“Domestic Subsidiary” means any Subsidiary of any Loan Party that is not a Foreign Subsidiary.
“Drawing Document” means any Letter of Credit or other document presented for purposes of drawing under any Letter of Credit, including by electronic transmission such as SWIFT, electronic mail, facsimile or computer generated communication.
“Earn-Outs” means unsecured liabilities of a Loan Party arising under an agreement to make any deferred payment as a part of the Purchase Price for a Permitted Acquisition with respect to which the Payment Conditions are satisfied, including performance bonuses or consulting payments in any related services, employment or similar agreement, in an amount that is subject to or contingent upon the revenues, income, cash flow or profits (or the like) of the target of such Permitted Acquisition.
“EASA” means the European Aviation Safety Authority.
“EBITDA” means, with respect to any fiscal period and with respect to Parent determined, in each
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[AerSale] Amended and Restated Credit Agreement
case, on a consolidated basis in accordance with GAAP:
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[AerSale] Amended and Restated Credit Agreement
Both (A) the effects of purchase accounting, fair value accounting or recapitalization accounting (including the effects of adjustments pushed down) and the amortization, write-down or write-off of any amounts thereof, so long as the transaction relating thereto is not prohibited by the terms of this Agreement or the
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[AerSale] Amended and Restated Credit Agreement
other Loan Documents and (B) the cumulative effect of a change in accounting principles during such period will be excluded from the calculation of EBITDA.
For the purposes of calculating EBITDA for any period of four consecutive fiscal quarters (each, a “Reference Period”), if at any time during such Reference Period (and after the Closing Date), any Loan Party or any of its Subsidiaries shall have made a Permitted Acquisition, EBITDA for such Reference Period shall be calculated after giving pro forma effect thereto (including pro forma adjustments arising out of events which are directly attributable to such Permitted Acquisition, are factually supportable, and are expected to have a continuing impact, in each case to be mutually and reasonably agreed upon by Borrowers and Agent) or in such other manner acceptable to Agent as if any such Permitted Acquisition or adjustment occurred on the first day of such Reference Period.
“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Eligible Accounts” means those Accounts created by a Borrower in the ordinary course of its business, that arise out of such Borrower’s sale of goods or rendition of services, that comply with each of the representations and warranties respecting Eligible Accounts made in the Loan Documents, and that are not excluded as ineligible by virtue of one or more of the excluding criteria set forth below; provided, that such criteria may be revised from time to time by Agent in Agent’s Permitted Discretion to address the results of any information with respect to the Borrowers’ business or assets of which Agent becomes aware after the Closing Date pursuant to any field examination performed by (or on behalf of) Agent from time to time after the Closing Date. In determining the amount to be included, Eligible Accounts shall be calculated net of customer deposits, unapplied cash, Taxes, finance charges, service charges, discounts, credits, allowances, and rebates. Eligible Accounts shall not include the following:
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[AerSale] Amended and Restated Credit Agreement
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[AerSale] Amended and Restated Credit Agreement
“Eligible Lease” shall mean a Lease entered into in the ordinary course of a Borrower’s business that is not excluded as ineligible by virtue of not meeting one or more of the criteria set forth below; provided, that such criteria may be revised from time to time by Agent in its Permitted Discretion to address the results of any information with respect to Borrowers’ business or assets of which Agent becomes aware after the Closing Date pursuant to any field examination or appraisal performed or received by Agent from time to time after the Closing Date. No Lease shall constitute an Eligible Lease unless:
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[AerSale] Amended and Restated Credit Agreement
“Eligible Off-Lease Whole Engine Collateral” means those Whole Engines that are not subject to a Lease and do not otherwise qualify as Eligible Whole Engine Collateral solely because they do not satisfy clause (h) of the definition of “Specified Aviation Equipment Criteria”, but otherwise satisfy all Specified Aviation Equipment Criteria and would otherwise constitute Eligible Whole Engine Collateral, so long as each such Whole Engine is (i) located in a Pre-Approved Jurisdiction or other jurisdiction approved by Agent in its Permitted Discretion (but not an Unapproved Foreign Jurisdiction) at a location acceptable to Agent pursuant to temporary storage arrangements on terms and conditions acceptable to Agent, pursuant to such documents as Agent shall require and for a duration acceptable to Agent, in each case, in its Permitted Discretion, or (ii) otherwise deemed eligible by Agent in its Permitted Discretion.
“Eligible Parts” means all Inventory comprised of Parts (other than Parts on consignment) which have been specifically assigned a valuation (including an NOLV) in an Acceptable Appraisal, which complies with each of the representations and warranties respecting Eligible Parts made in the Loan Documents, and that is not excluded as ineligible by virtue of one or more of the excluding criteria set forth below; provided, that such criteria may be revised from time to time by Agent in Agent’s Permitted Discretion to address the results of any information with respect to the Borrowers’ business or assets of which Agent becomes aware after the Closing Date pursuant to any field examination or appraisal performed or received by Agent from time to time after the Closing Date. In determining the amount to be so included, Parts shall be valued at gross book cost on a basis consistent with Borrowers’ historical accounting practices. A Part shall not be included in Eligible Parts if:
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[AerSale] Amended and Restated Credit Agreement
“Eligible Whole Aircraft Collateral” means (a) each airframe owned by any Borrower held for lease including all parts, accessories and components attached thereto (but excluding any engines attached thereto and any parts, accessories, engines and components removed therefrom) and all logbooks, manuals and technical documents relating thereto, in each case not excluded as ineligible by virtue of not meeting one or more of the Specified Aviation Equipment Criteria and (b) for the twenty-four month period following the initial acquisition thereof by the Borrower, each airframe owned by any Borrower held for sale including all parts, accessories and components attached thereto (including any engines attached thereto but excluding any parts, accessories, engines and components removed therefrom) and all logbooks, manuals and technical documents relating thereto, in each case not excluded as ineligible by virtue of not meeting one or more of the Specified Aviation Equipment Criteria; provided, that such criteria may be revised from time
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[AerSale] Amended and Restated Credit Agreement
to time by Agent in its Permitted Discretion to address the results of any information with respect to Borrowers’ business or assets of which Agent becomes aware after the Closing Date pursuant to any field examination or appraisal performed or received by Agent from time to time after the Closing Date. An item shall not be included in Eligible Whole Aircraft Collateral unless it has been specifically assigned a valuation (including an NOLV) in an Acceptable Appraisal and meets all of the Specified Aviation Equipment Criteria.
“Eligible Whole Engine Collateral” means each aircraft engine owned by any Borrower including all parts, accessories and components attached thereto (but not any parts, components or accessories removed therefrom while not attached thereto provided the same shall have been replaced in accordance with the Guaranty and Security Agreement), whether or not attached to a Whole Aircraft, in each case not excluded as ineligible by virtue of not meeting one or more of the Specified Aviation Equipment Criteria; provided, that such criteria may be revised from time to time by Agent in its Permitted Discretion to address the results of any information with respect to Borrowers’ business or assets of which Agent becomes aware after the Closing Date pursuant to any field examination or appraisal performed or received by Agent from time to time after the Closing Date. An item shall not be included in Eligible Whole Engine Collateral unless it has been specifically assigned a valuation (including an NOLV) in an Acceptable Appraisal and meets all of the Specified Aviation Equipment Criteria. Notwithstanding the foregoing, Eligible Off-Lease Whole Engine Collateral shall constitute Eligible Whole Engine Collateral.
“Engine Mortgage” means each Engine Mortgage and Security Agreement entered into and delivered, at any time, by any Borrower or a trustee or guarantor for the benefit of any Borrower in respect of any Whole Engine.
“Engine Reserves” means, as of any date of determination, (a) Landlord Reserves in respect of Whole Engines, and (b) those reserves that Agent deems necessary or appropriate, in its Permitted Discretion and subject to Section 2.1(c), to establish and maintain with respect to Eligible Whole Engine Collateral, including based on the results of appraisals.
“Environmental Action” means any written complaint, summons, citation, notice, directive, order, claim, litigation, investigation, judicial or administrative proceeding, judgment, letter, or other written communication from any Governmental Authority, or any third party involving violations of Environmental Laws or releases of Hazardous Materials (a) from any assets, properties, or businesses of any Borrower, any Subsidiary of any Borrower, or any of their predecessors in interest, (b) from adjoining properties or businesses, or (c) from or onto any facilities which received Hazardous Materials generated by any Borrower, any Subsidiary of any Borrower, or any of their predecessors in interest.
“Environmental Law” means any applicable federal, state, provincial, foreign or local statute, law, rule, regulation, ordinance, code, binding and enforceable guideline, binding and enforceable written policy, or rule of common law now or hereafter in effect and in each case as amended, or any judicial or administrative interpretation thereof, including any judicial or administrative order, consent decree or judgment, in each case, to the extent binding on any Loan Party or its Subsidiaries, relating to the environment, the effect of the environment on employee health, or Hazardous Materials, in each case as amended from time to time.
“Environmental Liabilities” means all liabilities, monetary obligations, losses, damages, costs and expenses (including all reasonable fees, disbursements and expenses of counsel, experts, or consultants, and costs of investigation and feasibility studies), fines, penalties, sanctions, and interest incurred as a result
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[AerSale] Amended and Restated Credit Agreement
of any claim or demand, or Remedial Action required, by any Governmental Authority or any third party, and which relate to any Environmental Action.
“Environmental Lien” means any Lien in favor of any Governmental Authority for Environmental Liabilities.
“Equipment” means equipment (as that term is defined in the Code).
“Equity Interests” means, with respect to a Person, all of the shares, options, warrants, interests, participations, or other equivalents (regardless of how designated) of or in such Person, whether voting or nonvoting, including capital stock (or other ownership or profit interests or units), preferred stock, or any other “equity security” (as such term is defined in Rule 3a11-1 of the General Rules and Regulations promulgated by the SEC under the Exchange Act).
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and any successor statute thereto.
“ERISA Affiliate” means (a) any Person subject to ERISA whose employees are treated as employed by the same employer as the employees of any Loan Party or its Subsidiaries under IRC Section 414(b), (b) any trade or business subject to ERISA whose employees are treated as employed by the same employer as the employees of any Loan Party or its Subsidiaries under IRC Section 414(c), (c) solely for purposes of Section 302 of ERISA and Section 412 of the IRC, any organization subject to ERISA that is a member of an affiliated service group of which any Loan Party or any of its Subsidiaries is a member under IRC Section 414(m), or (d) solely for purposes of Section 302 of ERISA and Section 412 of the IRC, any Person subject to ERISA that is a party to an arrangement with any Loan Party or any of its Subsidiaries and whose employees are aggregated with the employees of such Loan Party or its Subsidiaries under IRC Section 414(o).
“ERISA Event” means, with respect to any Borrower or any ERISA Affiliate, (a) any event described in Section 4043(c) of ERISA with respect to a Title IV Plan for which the PBGC has not waived the thirty day notice requirement; (b) the withdrawal of any Borrower or ERISA Affiliate from a Title IV Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer, as defined in Section 4001(a)(2) of ERISA; (c) the complete or partial withdrawal of any Borrower or any ERISA Affiliate from any Multiemployer Plan; (d) the filing of a notice of intent to terminate a Title IV Plan or the treatment of a plan amendment as a termination under Section 4041 of ERISA; (e) the institution of proceedings to terminate a Title IV Plan or Multiemployer Plan by the PBGC; (f) the failure by any Borrower or ERISA Affiliate to make when due required contributions to a Multiemployer Plan or Title IV Plan unless such failure is cured within thirty (30) days; (g) any other event or condition that could reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Title IV Plan or Multiemployer Plan or for the imposition of liability under Section 4069 or 4212(c) of ERISA; (h) the termination of a Multiemployer Plan under Section 4041A of ERISA or the reorganization or insolvency of a Multiemployer Plan under Section 4241 or 4245 of ERISA, respectively; (i) the revocation of a Qualified Plan’s qualification or tax exempt status; or (j) the termination of a Plan described in Section 4064 of ERISA.
“Erroneous Payment” has the meaning specified therefor in Section 17.17(a) of this Agreement.
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[AerSale] Amended and Restated Credit Agreement
“Erroneous Payment Deficiency Assignment” has the meaning specified therefor in Section 17.17(d) of this Agreement.
“Erroneous Payment Return Deficiency” has the meaning specified therefor in Section 17.17(d) of this Agreement.
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
“Event of Default” has the meaning specified therefor in Section 8 of this Agreement.
“Excess Availability” means, as of any date of determination, the amount equal to Availability minus without duplication the aggregate amount, if any, of all trade payables of the Loan Parties and their Subsidiaries that are due and owing and aged in excess of 90 days and all book overdrafts of the Loan Parties and their Subsidiaries in excess of 90 days.
“Exchange Act” means the Securities Exchange Act of 1934, as in effect from time to time.
“Excluded Subsidiary” means:
For the avoidance of doubt, no Borrower, nor any Subsidiary which Administrative Borrower has requested to be joined as a Borrower hereunder pursuant to Section 5.11(a) of this Agreement, shall be an Excluded Subsidiary.
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[AerSale] Amended and Restated Credit Agreement
“Excluded Swap Obligation” means, with respect to any Loan Party, any Swap Obligation if, and to the extent that, all or a portion of the guaranty of such Loan Party of (including by virtue of the joint and several liability provisions of Section 2.16 of this Agreement), or the grant by such Loan Party of a security interest to secure, such Swap Obligation (or any guaranty thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Loan Party’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the guaranty of such Loan Party or the grant of such security interest becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such guaranty or security interest is or becomes illegal.
“Excluded Taxes” means (i) any tax imposed on the net income or net profits of any Lender or any Participant (including any branch profits Taxes), in each case imposed by the jurisdiction (or by any political subdivision or taxing authority thereof) in which such Lender or such Participant is organized or the jurisdiction (or by any political subdivision or taxing authority thereof) in which such Lender’s or such Participant’s principal office is located in or as a result of a present or former connection between such Lender or such Participant and the jurisdiction or taxing authority imposing the tax (other than any such connection arising solely from such Lender or such Participant having executed, delivered or performed its obligations or received payment under, or enforced its rights or remedies under this Agreement or any other Loan Document), (ii) withholding Taxes that would not have been imposed but for a Lender’s or a Participant’s failure to comply with the requirements of Section 16.2 of this Agreement, (iii) any United States federal withholding Taxes that would be imposed on amounts payable to a Foreign Lender based upon the applicable withholding rate in effect at the time such Foreign Lender becomes a party to this Agreement (or designates a new lending office, other than a designation made at the request of a Loan Party), except that Excluded Taxes shall not include (A) any amount that such Foreign Lender (or its assignor, if any) was previously entitled to receive pursuant to Section 16.1 of this Agreement, if any, with respect to such withholding tax at the time such Foreign Lender becomes a party to this Agreement (or designates a new lending office), and (B) additional United States federal withholding Taxes that may be imposed after the time such Foreign Lender becomes a party to this Agreement (or designates a new lending office), as a result of a change in law, rule, regulation, treaty, order or other decision or other Change in Law with respect to any of the foregoing by any Governmental Authority, (iv) any Taxes imposed under FATCA and (v) any Tax imposed by Ireland on amounts to or for the account of a Lender or Participant, as the case may be, where such Tax would not be imposed if that Lender or Participant, as the case may be, had been an Irish Qualifying Lender but on the date the Lender or Participant, as the case may be, is not or has ceased to be an Irish Qualifying Lender other than as a result of any change after the date it became a Lender under this Agreement in (or in the interpretation, administration, or application of) any law or Irish Tax Treaty, or any published practice or concession of any relevant tax authority and Borrowers are able to demonstrate that the payment could have been made to the Lender or Participant, as the case may be, without such deduction or withholding had that Lender or Participant, as the case may be, complied with its obligations under Section 16.5 of this Agreement.
“Existing Credit Agreement” has the meaning specified therefor in the preamble to this Agreement.
“Existing Letters of Credit” means those letters of credit described on Schedule E-3 to this Agreement.
“Extraordinary Advances” has the meaning specified therefor in Section 2.3(d)(iii) of this
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[AerSale] Amended and Restated Credit Agreement
Agreement.
“FAA” means the Federal Aviation Administration.
“FATCA” means Sections 1471 through 1474 of the IRC, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), and (a) any current or future regulations or official interpretations thereof, (b) any agreements entered into pursuant to Section 1471(b)(1) of the IRC, and (c) any intergovernmental agreement entered into by the United States (or any fiscal or regulatory legislation, rules, or practices adopted pursuant to any such intergovernmental agreement entered into in connection therewith).
“FCPA” means the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder.
“Fee Letter” means that certain second amended and restated fee letter, dated as of July 25, 2023, among Administrative Borrower on behalf of the Borrowers and Agent, in form and substance reasonably satisfactory to Agent.
“Federal Funds Rate” means, for any period, a fluctuating interest rate per annum equal to, for each day during such period, the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by Agent from three Federal funds brokers of recognized standing selected by it (and, if any such rate is below zero, then the rate determined pursuant to this definition shall be deemed to be zero).
“First Amendment” means that certain Amendment No. 1 to Amended and Restated Credit Agreement, dated as of September 8, 2020, by and among the Loan Parties and the Agent.
“First Amendment Effective Date” means September 8, 2020.
“Fixed Charges” means, with respect to any fiscal period and with respect to Parent determined on a consolidated basis in accordance with GAAP, the sum, without duplication, of (a) Interest Expense required to be paid (other than interest paid-in-kind, amortization of financing fees, and other non-cash Interest Expense) during such period and (b) scheduled principal payments in respect of Indebtedness that are required to be paid during such period.
“Fixed Charge Coverage Ratio” means, with respect to any fiscal period and with respect to Parent determined on a consolidated basis in accordance with GAAP, the ratio of (a) (i) the sum of (A) EBITDA for such period plus (B) Curative Equity minus (ii) Unfinanced Capital Expenditures made (to the extent not already incurred in a prior period) or incurred during such period; provided that for purposes of calculating the Fixed Charge Coverage Ratio for the quarters ending June 30, 2023, September 30, 2023, December 31, 2023 and March 31, 2024, $8,500,000 drawn on the Synovus Facility as of June 30, 2023 shall be excluded from Unfinanced Capital Expenditures for such quarter, to (b) (i) Fixed Charges for such period plus (ii) all Restricted Payments, other than (x) the Specified Restricted Payment, and (y) Restricted Payments permitted pursuant to clauses (a) through (g) of Section 6.7 of this Agreement, paid (whether in cash or other property, other than common Equity Interests) during such period plus (iii) all federal, state, and local income Taxes paid in cash during such period. For the purposes of calculating Fixed Charge
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[AerSale] Amended and Restated Credit Agreement
Coverage Ratio for any Reference Period, if at any time during such Reference Period (and after the Closing Date), any Loan Party or any of its Subsidiaries shall have made a Permitted Acquisition, Fixed Charges and Unfinanced Capital Expenditures for such Reference Period shall be calculated after giving pro forma effect thereto or in such other manner acceptable to Agent as if any such Permitted Acquisition occurred on the first day of such Reference Period.
“Flood Laws” means the National Flood Insurance Act of 1968, Flood Disaster Protection Act of 1973, and related laws, rules and regulations, including any amendments or successor provisions.
“Floor” means a rate of interest equal to 0.00%.
“Flow of Funds Agreement” means a flow of funds agreement, dated as of even date with this Agreement, in form and substance reasonably satisfactory to Agent, executed and delivered by Borrowers and Agent.
“Foreign Lender” means any Lender or Participant that is not a United States person within the meaning of IRC section 7701(a)(30).
“Foreign Subsidiary” means any direct or indirect subsidiary of any Loan Party that is organized or incorporated under the laws of any jurisdiction other than the United States, any state thereof or the District of Columbia.
“Fourth Amendment Effective Date” means July 25, 2023.
“FRB” means the Board of Governors of the Federal Reserve System of the United States (or any successor).
“FSHCO” means any direct or indirect Domestic Subsidiary of Parent (other than Borrowers) that has no material assets other than Equity Interests (or Equity Interests and Indebtedness) in one or more Foreign Subsidiaries that are CFCs or other FSHCOs.
“Funding Date” means the date on which a Borrowing occurs.
“Funding Losses” has the meaning specified therefor in Section 2.12(b)(ii) of this Agreement.
“GAAP” means generally accepted accounting principles as in effect from time to time in the United States, consistently applied.
“Governing Documents” means, with respect to any Person, the certificate or articles of incorporation, by-laws, constitution, memorandum and articles of association (in the case of any Borrower incorporated in Ireland), or other organizational documents of such Person.
“Governmental Authority” means the government of any nation or any political subdivision thereof, whether at the national, state, territorial, provincial, county, municipal or any other level, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of, or pertaining to, government (including any supra-national bodies such as the European Union or the European Central Bank).
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[AerSale] Amended and Restated Credit Agreement
“Guarantor” means (a) each Person that guaranties all or a portion of the Obligations, including the Parent Companies and any other Person that is a “Guarantor” under the Guaranty and Security Agreement, and (b) each other Person that becomes a guarantor after the Closing Date pursuant to Section 5.11 of this Agreement.
“Guaranty and Security Agreement” means the Amended and Restated Security Agreement, dated as of even date with this Agreement, in form and substance reasonably satisfactory to Agent, executed and delivered by each of the Loan Parties to Agent.
“Hazardous Materials” means (a) substances that are defined or listed in, or otherwise classified pursuant to, any applicable laws or regulations as “hazardous substances,” “hazardous materials,” “hazardous wastes,” “toxic substances,” or any other formulation intended to define, list, or classify substances by reason of deleterious properties such as ignitability, corrosivity, reactivity, carcinogenicity, reproductive toxicity, or “EP toxicity”, (b) oil, petroleum, or petroleum derived substances, natural gas, natural gas liquids, synthetic gas, drilling fluids, produced waters, and other wastes associated with the exploration, development, or production of crude oil, natural gas, or geothermal resources, (c) any flammable substances or explosives or any radioactive materials, and (d) asbestos in any form or electrical equipment that contains any oil or dielectric fluid containing levels of polychlorinated biphenyls in excess of 50 parts per million.
“Hedge Agreement” means a “swap agreement” as that term is defined in Section 101(53B)(A) of the Bankruptcy Code.
“Hedge Obligations” means any and all obligations or liabilities, whether absolute or contingent, due or to become due, now existing or hereafter arising, of each Loan Party and its Subsidiaries arising under, owing pursuant to, or existing in respect of Hedge Agreements entered into with one or more of the Hedge Providers.
“Hedge Provider” means any Bank Product Provider that is a party to a Hedge Agreement with a Loan Party or its Subsidiaries or otherwise provides Bank Products under clause (f) of the definition thereof; provided, that if, at any time, a Lender ceases to be a Lender under this Agreement (prior to the payment in full of the Obligations), then, from and after the date on which it ceases to be a Lender thereunder, neither it nor any of its Affiliates shall constitute Hedge Providers and the obligations with respect to Hedge Agreements entered into with such former Lender or any of its Affiliates shall no longer constitute Hedge Obligations.
“Illegality Notice” has the meaning specified in Section 2.13(b)of this Agreement.
“Immaterial Subsidiary” means each Subsidiary of a Borrower that is not a Material Subsidiary.
“Increase Effective Date” has the meaning specified therefor in Section 2.15(c) of this Agreement.
“Increased Appraisal Event” means if at any time Excess Availability is less than the greater of (a) 20% of the Line Cap, and (b) $27,000,000.
“Increased Reporting Event” means if at any time Excess Availability is less than the greater of (a) 15% of the Line Cap, and (b) $20,000,000.
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[AerSale] Amended and Restated Credit Agreement
“Increased Reporting Period” means the period commencing after the continuance of an Increased Reporting Event and continuing until the date when no Increased Reporting Event has occurred for 30 consecutive days.
“Incremental Amendment” has the meaning specified therefor in Section 2.15(f) of this Agreement.
“Incremental Increase” has the meaning specified therefor in Section 2.15(a) of this Agreement.
“Incremental Lender” has the meaning specified therefor in Section 2.15(b) of this Agreement.
“Indebtedness” as to any Person means (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes, or other similar instruments and all reimbursement or other obligations in respect of letters of credit, bankers acceptances, or other financial products, (c) all obligations of such Person as a lessee under Capital Leases, (d) all obligations or liabilities of others secured by a Lien on any asset of such Person, irrespective of whether such obligation or liability is assumed, (e) all obligations of such Person to pay the deferred purchase price of assets (other than trade payables incurred in the ordinary course of business and royalty payments payable in the ordinary course of business in respect of non-exclusive licenses) and any earn-out or similar obligations, (f) all monetary obligations of such Person owing under Hedge Agreements (which amount shall be calculated based on the amount that would be payable by such Person if the Hedge Agreement were terminated on the date of determination), (g) any Disqualified Equity Interests of such Person, and (h) any obligation of such Person guaranteeing or intended to guarantee (whether directly or indirectly guaranteed, endorsed, co-made, discounted, or sold with recourse) any obligation of any other Person that constitutes Indebtedness under any of clauses (a) through (g) above. For purposes of this definition, (i) the amount of any Indebtedness represented by a guaranty or other similar instrument shall be the lesser of the principal amount of the obligations guaranteed and still outstanding and the maximum amount for which the guaranteeing Person may be liable pursuant to the terms of the instrument embodying such Indebtedness, and (ii) the amount of any Indebtedness which is limited or is non-recourse to a Person or for which recourse is limited to an identified asset shall be valued at the lesser of (A) if applicable, the limited amount of such obligations, and (B) if applicable, the fair market value of such assets securing such obligation.
“Indemnified Liabilities” has the meaning specified therefor in Section 10.3 of this Agreement.
“Indemnified Person” has the meaning specified therefor in Section 10.3 of this Agreement.
“Indemnified Taxes” means, (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by, or on account of any obligation of, any Loan Party under any Loan Document, and (b) to the extent not otherwise described in the foregoing clause (a), Other Taxes.
“Insolvency Proceeding” means any proceeding commenced by or against any Person under any provision of the Bankruptcy Code or under any other state or federal bankruptcy or insolvency law, assignments for the benefit of creditors, formal or informal moratoria, examinership, compositions, extensions generally with creditors, or proceedings seeking reorganization, arrangement, or other similar relief.
“Intercompany Subordination Agreement” means an intercompany subordination agreement, dated as of even date with this Agreement, executed and delivered by each Loan Party, each of its Subsidiaries and Agent, the form and substance of which is reasonably satisfactory to Agent.
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[AerSale] Amended and Restated Credit Agreement
“Interest Expense” means, for any period, the aggregate of the interest expense of Parent for such period (including fees in respect of any Indebtedness), determined on a consolidated basis in accordance with GAAP.
“Interest Period” means, as to any SOFR Loan, the period commencing on the date such SOFR Loan is disbursed or converted to or continued as a SOFR Loan and ending on the date one (1), three (3) or six (6) months thereafter, in each case as selected by the Borrower in its request for a Borrowing or SOFR Notice and subject to availability; provided that:
“Inventory” means inventory (as that term is defined in the Code).
“Investment” means, with respect to any Person, (i) any investment by such Person in any other Person (including Affiliates) in the form of loans, guarantees, advances, capital contributions (excluding (a) commission, travel, and similar advances to officers and employees of such Person made in the ordinary course of business, and (b) bona fide accounts receivable arising in the ordinary course of business), any acquisition of all or substantially all of the assets of such other Person (or of any division or business line of such other Person), or (ii) any acquisition of assets by such Person from an unrelated third party in bulk for conversion to Inventory, or to be held as Inventory, in either case consistent with Borrowers’ historical business practices, in a transaction or series of transactions, with an aggregate purchase price in excess of $20,000,000. The amount of any Investment shall be the original cost of such Investment plus the cost of all additions thereto, without any adjustment for increases or decreases in value, or write-ups, write-downs, or write-offs with respect to such Investment. The amount of any Investment made with assets or property that is not cash shall be the fair market value thereof.
“IRC” means the Internal Revenue Code of 1986, as in effect from time to time.
“IRS” means the United States Internal Revenue Service.
“Irish Borrower” means (a) a Borrower that is resident in Ireland for the purposes of Irish Tax; or
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[AerSale] Amended and Restated Credit Agreement
(b) a Borrower that is operating in Ireland through a branch or agency in Ireland with which this Agreement or any Loan Document is connected for the purposes of Irish Tax.
“Irish Qualifying Jurisdiction” means (a) a member state of the European Union other than Ireland; (b) a jurisdiction with which Ireland has entered into an Irish Tax Treaty that has the force of law; or (c) a jurisdiction with which Ireland has entered into an Irish Tax Treaty where that treaty will (on completion of necessary procedures) have the force of law.
“Irish Qualifying Lender” means a Lender or Participant, as the case may be, which is beneficially entitled to interest payable to that Lender or Participant, as the case may be, in respect of a Loan Document and is:
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[AerSale] Amended and Restated Credit Agreement
“Irish Tax Treaty” means a double taxation treaty entered into by Ireland.
“Irish Treaty State” means a jurisdiction which has entered into an Irish Tax Treaty which has the force of law which makes provision for full exemption from tax imposed by Ireland on interest.
“ISP” means, with respect to any Letter of Credit, the International Standby Practices 1998 (International Chamber of Commerce Publication No. 590) and any version or revision thereof accepted by the Issuing Bank for use.
“Issuer Document” means, with respect to any Letter of Credit, a letter of credit application, a letter of credit agreement, or any other document, agreement or instrument entered into (or to be entered into) by a Borrower in favor of Issuing Bank and relating to such Letter of Credit.
“Issuing Bank” means Wells Fargo or any other Lender that, at the request of Borrowers and with the consent of Agent, agrees, in such Lender’s sole discretion, to become an Issuing Bank for the purpose of issuing Letters of Credit pursuant to Section 2.11 of this Agreement, and Issuing Bank shall be a Lender.
“Joinder” means a joinder agreement substantially in the form of Exhibit J-1 to this Agreement.
“Landlord Reserve” means, as to each location (a) located in a state that provides under applicable law for Liens on personal property at a leased location in favor of a landlord, bailee, warehouseman or other property owner securing rent, storage charges or fees due to such Person, (b) at which a Borrower has Whole Aircraft, Whole Engines, Parts or books and records and (c) as to which a Collateral Access Agreement has not been received by Agent, a reserve in an amount equal to 3 months’ rent, storage charges, fees or other amounts under the lease or other applicable agreement relative to such location or, if greater and Agent so elects, the number of months’ rent, storage charges, fess or other amounts for which the landlord, bailee, warehouseman or other property owner will have, under applicable law, a Lien in the Whole Aircraft, Whole Engines or Parts of such Borrower to secure the payment of such amounts under the lease or other applicable agreement relative to such location.
“Lead Arranger” has the meaning set forth in the preamble to this Agreement.
“Lease” means a lease agreement relating to any Whole Aircraft or any Whole Engine, between a Borrower (as lessor), and a Lessee (including another Borrower), in each case together with all schedules, supplements and amendments thereto and each other document, agreement and instrument related thereto.
“Lease Transaction Liens” means any Lease, and the respective rights of a relevant Borrower and
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[AerSale] Amended and Restated Credit Agreement
the Lessee or any third party that owns or leases equipment installed on a Whole Aircraft or Whole Engine, as applicable, under any Lease relating to such Whole Aircraft or Whole Engine, including any assignment of the relevant warranties relating thereto, and the rights of any sublessee under any permitted sublease relating to such Lease.
“Lender” has the meaning set forth in the preamble to this Agreement, shall include Issuing Bank and the Swing Lender, and shall also include any other Person made a party to this Agreement pursuant to the provisions of Section 2.15 or Section 13.1 of this Agreement and “Lenders” means each of the Lenders or any one or more of them.
“Lender Group” means each of the Lenders (including Issuing Bank and the Swing Lender) and Agent, or any one or more of them.
“Lender Group Expenses” means all (a) costs or expenses (including Taxes and insurance premiums) required to be paid by any Loan Party or its Subsidiaries under any of the Loan Documents that are paid, advanced, or incurred by the Lender Group, (b) documented out-of-pocket fees or charges paid or incurred by Agent in connection with the Lender Group’s transactions with each Loan Party and its Subsidiaries under any of the Loan Documents, including, photocopying, notarization, couriers and messengers, telecommunication, public record searches, filing fees, recording fees, publication, real estate surveys, real estate title policies and endorsements, and environmental audits, (c) Agent’s customary fees and charges imposed or incurred in connection with any background checks or OFAC/PEP searches related to any Loan Party or its Subsidiaries, (d) Agent’s customary fees and charges (as adjusted from time to time) with respect to the disbursement of funds (or the receipt of funds) to or for the account of any Borrower (whether by wire transfer or otherwise), together with any out-of-pocket costs and expenses incurred in connection therewith, (e) customary charges imposed or incurred by Agent resulting from the dishonor of checks payable by or to any Loan Party, (f) reasonable, documented out-of-pocket costs and expenses paid or incurred by the Lender Group to correct any default or enforce any provision of the Loan Documents, or during the continuance of an Event of Default, in gaining possession of, maintaining, handling, preserving, storing, shipping, selling, preparing for sale, or advertising to sell the Collateral, or any portion thereof, irrespective of whether a sale is consummated, (g) field examination, appraisal, and valuation fees and expenses of Agent related to any field examinations, appraisals, or valuation to the extent of the fees and charges (and up to the amount of any limitation) provided in Section 2.10 of this Agreement, (h) Agent’s and Lenders’ reasonable, documented costs and expenses (including reasonable and documented attorneys’ fees and expenses) relative to third party claims or any other lawsuit or adverse proceeding paid or incurred, whether in enforcing or defending the Loan Documents or otherwise in connection with the transactions contemplated by the Loan Documents, Agent’s Liens in and to the Collateral, or the Lender Group’s relationship with any Loan Party or any of its Subsidiaries, (i) Agent’s reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees and due diligence expenses) incurred in advising, structuring, drafting, reviewing, administering (including travel, meals, and lodging), syndicating (including reasonable costs and expenses relative to CUSIP, DXSyndicate™, SyndTrak or other communication costs incurred in connection with a syndication of the loan facilities), or amending, waiving, or modifying the Loan Documents, and (j) Agent’s and each Lender’s reasonable and documented costs and expenses (including reasonable and documented attorneys, accountants, consultants, and other advisors fees and expenses) incurred in terminating, enforcing (including attorneys, accountants, consultants, and other advisors fees and expenses incurred in connection with a “workout,” a “restructuring,” or an Insolvency Proceeding concerning any Loan Party or any of its Subsidiaries or in exercising rights or remedies under the Loan Documents), or defending the Loan Documents, irrespective of whether a lawsuit or other adverse proceeding is brought, or in taking any
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[AerSale] Amended and Restated Credit Agreement
enforcement action or any Remedial Action with respect to the Collateral.
“Lender Group Representatives” has the meaning specified therefor in Section 17.9 of this Agreement.
“Lender-Related Person” means, with respect to any Lender, such Lender, together with such Lender’s Affiliates, officers, directors, employees, attorneys, and agents.
“Lending Office” means the office or offices through which the Lender will perform its obligations under this Agreement.
“Lessee” means any lessee party to a Lease.
“Letter of Credit” means a letter of credit (as that term is defined in the Code) issued by Issuing Bank.
“Letter of Credit Collateralization” means either (a) providing cash collateral (pursuant to documentation reasonably satisfactory to Agent (including that Agent has a first priority perfected Lien in such cash collateral), including provisions that specify that the Letter of Credit Fees and all commissions, fees, charges and expenses provided for in Section 2.11(k) of this Agreement (including any fronting fees) will continue to accrue while the Letters of Credit are outstanding) to be held by Agent for the benefit of the Revolving Lenders in an amount equal to 105% of the then existing Letter of Credit Usage, (b) delivering to Agent documentation executed by all beneficiaries under the Letters of Credit, in form and substance reasonably satisfactory to Agent and Issuing Bank, terminating all of such beneficiaries’ rights under the Letters of Credit, or (c) providing Agent with a standby letter of credit, in form and substance reasonably satisfactory to Agent, from a commercial bank acceptable to Agent (in its sole discretion) in an amount equal to 105% of the then existing Letter of Credit Usage (it being understood that the Letter of Credit Fee and all fronting fees set forth in this Agreement will continue to accrue while the Letters of Credit are outstanding and that any such fees that accrue must be an amount that can be drawn under any such standby letter of credit).
“Letter of Credit Disbursement” means a payment made by Issuing Bank pursuant to a Letter of Credit.
“Letter of Credit Exposure” means, as of any date of determination with respect to any Lender, such Lender’s participation in the Letter of Credit Usage pursuant to Section 2.11(e) on such date.
“Letter of Credit Fee” has the meaning specified therefor in Section 2.6(b) of this Agreement.
“Letter of Credit Indemnified Costs” has the meaning specified therefor in Section 2.11(f) of this Agreement.
“Letter of Credit Related Person” has the meaning specified therefor in Section 2.11(f) of this Agreement.
“Letter of Credit Sublimit” means $10,000,000.
“Letter of Credit Usage” means, as of any date of determination, the sum of (a) the aggregate
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[AerSale] Amended and Restated Credit Agreement
undrawn amount of all outstanding Letters of Credit, plus (b) the aggregate amount of outstanding reimbursement obligations with respect to Letters of Credit which remain unreimbursed or which have not been paid through a Revolving Loan.
“Lien” means any mortgage, deed of trust, pledge, hypothecation, assignment, charge, deposit arrangement, encumbrance, easement, lien (statutory or other), security interest, or other security arrangement and any other preference, priority, or preferential arrangement of any kind or nature whatsoever, including any conditional sale contract or other title retention agreement, the interest of a lessor under a Capital Lease and any synthetic or other financing lease having substantially the same economic effect as any of the foregoing.
“Limited Perfection Requirements” has the meaning specified therefor in the Guaranty and Security Agreement.
“Line Cap” means, as of any date of determination, the lesser of (a) the Maximum Revolver Amount, and (b) the Borrowing Base as of such date of determination.
“Loan” means any Revolving Loan, Swing Loan or Extraordinary Advance made (or to be made) hereunder.
“Loan Account” has the meaning specified therefor in Section 2.9 of this Agreement.
“Loan Documents” means this Agreement, the Control Agreements, the Copyright Security Agreement, any Borrowing Base Certificate, the Fee Letter, the Guaranty and Security Agreement, any Intercompany Subordination Agreement, any Issuer Documents, the Letters of Credit, the Mortgages, the Patent Security Agreement, any Subordination Agreement, the Trademark Security Agreement, any note or notes executed by Borrowers in connection with this Agreement and payable to any member of the Lender Group, each Loan Document as defined in and delivered in connection with the Existing Credit Agreement that remains in existence on and after the Closing Date and any other instrument or agreement entered into, now or in the future, by any Loan Party or any of its Subsidiaries and any member of the Lender Group in connection with this Agreement (but specifically excluding Bank Product Agreements).
“Loan Party” means any Borrower or any Guarantor.
“Management Agreement” means the Management Services Agreement, dated as of January 11, 2010, by and between Administrative Borrower, AerSale Aviation, and Sponsor.
“Margin Stock” as defined in Regulation U of the FRB as in effect from time to time.
“Material Adverse Effect” means (a) a material adverse effect in the business, operations, results of operations, assets, liabilities or financial condition of the Loan Parties and their Subsidiaries, taken as a whole, (b) a material impairment of the Loan Parties’ and their Subsidiaries’ ability to perform their obligations under the Loan Documents to which they are parties or of the Lender Group’s ability to enforce the Obligations or realize upon the Collateral (other than as a result of an action taken or not taken that is solely in the control of Agent), or (c) a material impairment of the legality, validity, binding effect or enforceability any Loan Party of any Loan Document to which it is a party.
“Material Contract” means, with respect to any Person, each contract or agreement, the loss of
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[AerSale] Amended and Restated Credit Agreement
which could reasonably be expected to result in a Material Adverse Effect.
“Material Subsidiary” means (a) each Borrower, and (b) each Subsidiary of a Loan Party that (i) owns at least 2.50% of the consolidated total assets of the Loan Parties and their Subsidiaries, (ii) generates at least 2.50% of the consolidated revenues of the Loan Parties and their Subsidiaries, (iii) is the owner of Equity Interests of any Subsidiary of a Loan Party that otherwise constitutes a Material Subsidiary, or (iv) any group comprising Subsidiaries of a Loan Party that each would not have been a Material Subsidiary under clauses (i), (ii), or (iii) but that, taken together, had revenues or total assets in excess of 2.50% of the consolidated revenues or total assets, as applicable, of the Loan Parties and their Subsidiaries.
“Maturity Date” means July 24, 2028.
“Maximum Revolver Amount” means $180,000,000, as decreased by the amount of reductions in the Revolver Commitments made in accordance with Section 2.4(c) of this Agreement.
“Monocle Merger Agreement” means that certain Amended and Restated Agreement and Plan of Merger, dated as of September 8, 2020, by and among Monocle Acquisition Corporation, a Delaware corporation, Monocle Holdings Inc., a Delaware corporation, Monocle Merger Sub 1 Inc., a Delaware corporation, Monocle Merger Sub 2 LLC, a Delaware limited liability company, AerSale Aviation, and Leonard Green & Partners, L.P., a Delaware limited partnership, as in effect on the First Amendment Effective Date (or as may be amended, restated, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms of the First Amendment).
“Monocle Merger Documentation” means, collectively, the Monocle Merger Agreement and all schedules, exhibits and annexes thereto and all side letters and agreements affecting the terms thereof and entered into in connection therewith, in each case, as in effect on the First Amendment Effective Date (or, in each case, as may be amended, restated, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms of the First Amendment).
“Moody’s” has the meaning specified therefor in the definition of Cash Equivalents.
“Mortgages” means each of the Aircraft Mortgages, Engine Mortgages and other mortgages, deeds of trust, leasehold mortgages, leasehold deeds of trust, collateral assignments of leases or other security documents (including, without limitation, security documents that encumber the Real Property Collateral) now existing or hereafter entered into and delivered by any Borrower or any trustee or guarantor for the benefit of any Borrower to Agent, on behalf of itself and the other Lenders, from time to time, with respect to any Collateral, all in form and substance reasonably satisfactory to Agent.
“Multiemployer Plan” means a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA, and to which any Borrower or ERISA Affiliate is making, is obligated to make or has made or been obligated to make contributions or has any unsatisfied liability on behalf of participants who are or were employed by any Borrower or ERISA Affiliate.
“NOLV” means, as of any date of determination, with respect to Eligible Whole Aircraft Collateral, Eligible Whole Engine Collateral or Eligible Parts of any Person, the value of such Eligible Whole Aircraft Collateral, Eligible Whole Engine Collateral or Eligible Parts that is estimated to be recoverable in an orderly liquidation of such Eligible Whole Aircraft Collateral, Eligible Whole Engine Collateral or Eligible
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[AerSale] Amended and Restated Credit Agreement
Parts occurring within a period of eighteen (18) months from the date of the applicable Acceptable Appraisal, net of all associated costs and expenses of such liquidation, as determined based upon the most recent Acceptable Appraisal of Whole Aircraft, Whole Engines or Parts, as applicable; provided that if such Acceptable Appraisal does not provide the costs and expenses of such liquidation on an item by item basis, then costs and expenses of liquidation for each item of Eligible Whole Aircraft Collateral, Eligible Whole Engine Collateral or Eligible Parts will be such amount as determined by Agent in its Permitted Discretion.
“Non-Consenting Lender” has the meaning specified therefor in Section 14.2(a) of this Agreement.
“Non-Defaulting Lender” means each Lender other than a Defaulting Lender.
“Obligations” means (a) all loans (including the Revolving Loans (inclusive of Extraordinary Advances and Swing Loans)), debts, principal, interest (including any interest that accrues after the commencement of an Insolvency Proceeding, regardless of whether allowed or allowable in whole or in part as a claim in any such Insolvency Proceeding), reimbursement or indemnification obligations with respect to Letters of Credit (irrespective of whether contingent), premiums, liabilities (including all amounts charged to the Loan Account pursuant to this Agreement), obligations (including indemnification obligations), fees (including the fees provided for in the Fee Letter), Lender Group Expenses (including any fees or expenses that accrue after the commencement of an Insolvency Proceeding, regardless of whether allowed or allowable in whole or in part as a claim in any such Insolvency Proceeding), guaranties, and all covenants and duties of any other kind and description owing by any Loan Party arising out of, under, pursuant to, in connection with, or evidenced by this Agreement or any of the other Loan Documents and irrespective of whether for the payment of money, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, and including all interest not paid when due and all other expenses or other amounts that any Loan Party is required to pay or reimburse by the Loan Documents or by law or otherwise in connection with the Loan Documents, and (b) all Bank Product Obligations; provided that, anything to the contrary contained in the foregoing notwithstanding, the Obligations shall exclude any Excluded Swap Obligation. Without limiting the generality of the foregoing, the Obligations of Borrowers under the Loan Documents include the obligation to pay (i) the principal of the Revolving Loans, (ii) interest accrued on the Revolving Loans, (iii) the amount necessary to reimburse Issuing Bank for amounts paid or payable pursuant to Letters of Credit, (iv) Letter of Credit commissions, fees (including fronting fees) and charges, (v) Lender Group Expenses, (vi) fees payable under this Agreement or any of the other Loan Documents, and (vii) indemnities and other amounts payable by any Loan Party under any Loan Document. Any reference in this Agreement or in the Loan Documents to the Obligations shall include all or any portion thereof and any extensions, modifications, renewals, or alterations thereof, both prior and subsequent to any Insolvency Proceeding.
“OFAC” means The Office of Foreign Assets Control of the U.S. Department of the Treasury.
“Originating Lender” has the meaning specified therefor in Section 13.1(e) of this Agreement.
“Other Taxes” means all present or future stamp, court, or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except with respect to an assignment of all or any portion of the Obligations, the Commitments, and any other rights and interests under the Loan Documents (other than an assignment made pursuant to Section 14.2).
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[AerSale] Amended and Restated Credit Agreement
“Overadvance” means, as of any date of determination, that the Revolver Usage is greater than any of the limitations set forth in Section 2.1 or Section 2.11 of this Agreement.
“Parent” has the meaning specified therefor in the preamble to this Agreement.
“Parent Company” has the meaning specified therefor in the preamble to this Agreement.
“Participant” has the meaning specified therefor in Section 13.1(e) of this Agreement.
“Participant Register” has the meaning set forth in Section 13.1(i) of this Agreement.
“Parts” means any as removed, overhauled, serviceable, rotatable, repairable or expendable Whole Aircraft or Whole Engine parts, ground service equipment and tooling and all Inventory of Whole Aircraft or Whole Engines that are designated for disassembly, that are within the scope of the definition of Eligible Parts without considering the criteria set forth in such definition.
“Parts Reserves” means, as of any date of determination, (a) Landlord Reserves in respect of Parts, and (b) those reserves that Agent deems necessary or appropriate, in its Permitted Discretion and subject to Section 2.1(c), to establish and maintain with respect to Eligible Parts, including based on the results of appraisals.
“Patent Security Agreement” has the meaning specified therefor in the Guaranty and Security Agreement.
“Patriot Act” has the meaning specified therefor in Section 4.13 of this Agreement.
“Payment Conditions” means, at the time of determination with respect to a proposed payment to fund a Specified Transaction, that:
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[AerSale] Amended and Restated Credit Agreement
“PBGC” means the Pension Benefit Guaranty Corporation.
“Pension Plan” means a Plan described in Section 3(2) of ERISA, other than a Multiemployer Plan.
“Perfection Certificate” means a certificate in the form of Exhibit P-1 to this Agreement.
“Perfection Requirements” has the meaning specified therefor in the Guaranty and Security Agreement.
“Periodic Term SOFR Determination Day” has the meaning set forth in the definition of “Term SOFR”.
“Permitted Acquisition” means, subject in all respects to Section 6.15 of this Agreement, any Acquisition so long as:
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[AerSale] Amended and Restated Credit Agreement
“Permitted Additional Secured Indebtedness” means Indebtedness incurred by any Loan Party or any of its Subsidiaries (in addition to Permitted Purchase Money Indebtedness) that is secured by, and only by, Specified Collateral, in an aggregate outstanding amount not to exceed $10,000,000 at any one time.
“Permitted Discretion” means a determination made in the exercise of reasonable (from the perspective of a secured asset-based lender) business judgment.
“Permitted Dispositions” means, subject in all respects to Section 6.15 of this Agreement:
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[AerSale] Amended and Restated Credit Agreement
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[AerSale] Amended and Restated Credit Agreement
provided, that if, as of any date of determination, any sales or dispositions by the Loan Parties as set forth in clauses (a) through (r) above consummated during the period of time from the first day of the month in which such date of determination occurs until such date of determination, either individually or in the aggregate, involve assets the aggregate NOLV of which would exceed $10,000,000 (the “Threshold Amount”), then Borrowers shall have, prior to consummation of the sale or disposition that causes the assets included in the Borrowing Base that are disposed of during such period to exceed the Threshold Amount, delivered to Agent an updated Borrowing Base Certificate that reflects the removal of the applicable assets from the Borrowing Base.
“Permitted Holder” means Sponsor, Nicholas Finazzo and Robert Nichols.
“Permitted Indebtedness” means, subject in all respects to Section 6.15 of this Agreement:
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[AerSale] Amended and Restated Credit Agreement
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[AerSale] Amended and Restated Credit Agreement
“Permitted Indebtedness Prepayments” means, subject in all respects to Section 6.15 of this Agreement:
“Permitted Intercompany Advances” means, subject in all respects to Section 6.15 of this Agreement, loans made by (a) a Loan Party to another Loan Party (other than a Parent Company), (b) a Subsidiary of a Loan Party that is not a Loan Party to another Subsidiary of a Loan Party that is not a Loan
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[AerSale] Amended and Restated Credit Agreement
Party, (c) a Subsidiary of a Loan Party that is not a Loan Party to a Loan Party, so long as the parties thereto are party to an Intercompany Subordination Agreement, and (d) a Loan Party to a Subsidiary of a Loan Party that is not a Loan Party so long as (i) the aggregate amount of all such loans (by type, not by the borrower) does not exceed $10,000,000 outstanding at any one time and (ii) the Payment Conditions are satisfied.
“Permitted Investments” means, subject in all respects to Section 6.15 of this Agreement:
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[AerSale] Amended and Restated Credit Agreement
“Permitted Liens” means, subject in all respects to Section 6.15 of this Agreement:
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[AerSale] Amended and Restated Credit Agreement
“Permitted Protest” means the right of any Loan Party or any of its Subsidiaries to protest any Lien (other than any Lien that secures the Obligations), Taxes or rental payment; provided, that (a) a reserve with respect to such obligation is established on such Loan Party’s or its Subsidiaries’ books and records in such amount as is required under GAAP, (b) any such protest is instituted promptly and prosecuted diligently by such Loan Party or its Subsidiary, as applicable, in good faith, and (c) Agent is satisfied that, while any such protest is pending, there will be no impairment of the enforceability, validity, or priority of any of Agent’s Liens.
“Permitted Purchase Money Indebtedness” means, as of any date of determination, Indebtedness (other than the Obligations, but including Capitalized Lease Obligations), incurred after the Closing Date and at the time of, or within 20 days after, the acquisition of any fixed assets for the purpose of financing all or any part of the acquisition cost thereof, in an aggregate principal amount outstanding at any one time not in excess of $25,000,000.
“Person” means natural persons, corporations, limited liability companies, limited partnerships, general partnerships, limited liability partnerships, joint ventures, trusts, land trusts, business trusts, or other organizations, irrespective of whether they are legal entities, and governments and agencies and political subdivisions thereof.
“Plan” means, at any time, an “employee benefit plan,” as defined in Section 3(3) of ERISA, that any Borrower or ERISA Affiliate maintains, contributes to or has an obligation to contribute to on behalf of participants who are or were employed by any Borrower.
“Platform” has the meaning specified therefor in Section 17.9(c) of this Agreement.
“Pre-Approved Jurisdiction” means each of Australia, Austria, Belgium, Canada, Cyprus, Denmark, Finland, France, Germany, Ireland, Italy, Luxembourg, Mexico, Netherlands, New Zealand, Poland, Portugal, Singapore, South Korea, Spain, Sweden, the United Kingdom and the United States, as such list may be updated from time to time by Agent in its Permitted Discretion.
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[AerSale] Amended and Restated Credit Agreement
“Pro Forma Leverage Ratio” means, at any time for the determination thereof, the ratio of (a) Total Debt as of such time (giving effect to any incurrence or repayment of Indebtedness on such date, including as a result of the proposed Acquisition to be consummated on such date) to (b) EBITDA for the Reference Period most recently ended on or prior to such date (calculated by giving pro forma effect to such proposed Acquisition or dispositions consummated after the commencement of such Reference Period or to be consummated on the calculation date as if such acquisitions or dispositions had been consummated on the first day of such Reference Period).
“Projections” means Parent’s forecasted (a) balance sheets, (b) profit and loss statements, and (c) cash flow statements, all prepared on a basis consistent with Parent’s historical financial statements, together with appropriate supporting details and a statement of underlying assumptions.
“Pro Rata Share” means, as of any date of determination:
“Protective Advances” has the meaning specified therefor in Section 2.3(d)(i) of this Agreement.
“Protocol” means the Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Aircraft Equipment, concluded in Cape Town, South Africa, on November 16, 2001 (utilizing the English-language version thereof).
“Public Lender” has the meaning specified therefor in Section 17.9(c) of this Agreement.
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[AerSale] Amended and Restated Credit Agreement
“Purchase Price” means, with respect to any Acquisition, an amount equal to the aggregate consideration, whether cash, property or securities (including the fair market value of any Equity Interests of Parent issued in connection with such Acquisition and including the maximum amount of Earn-Outs), paid or delivered by a Loan Party or one of its Subsidiaries in connection with such Acquisition (whether paid at the closing thereof or payable thereafter and whether fixed or contingent), but excluding therefrom (a) any cash of the seller and its Affiliates used to fund any portion of such consideration, and (b) any cash or Cash Equivalents acquired in connection with such Acquisition.
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. § 5390(c)(8)(D).
“QFC Credit Support” has the meaning specified therefor in Section 17.15 of this Agreement.
“Qualified Equity Interests” means and refers to any Equity Interests issued by Parent (and not by one or more of its Subsidiaries) that is not a Disqualified Equity Interest.
“Qualified Plan” means a Pension Plan that is intended to be tax-qualified under Section 401(a) of the IRC.
“Qualifying IPO” means the issuance by AerSale Aviation of its common Equity Interests in an underwritten primary public offering (other than a public offering pursuant to a registration statement on Form S-8) pursuant to an effective registration statement filed with the SEC in accordance with the Securities Act.
“Real Property” means any estates or interests in real property now owned or hereafter acquired by any Loan Party or one of its Subsidiaries and the improvements thereto.
“Real Property Collateral” means (a) the Real Property identified on Schedule R-1 to this Agreement, and (b) any Real Property hereafter acquired by any Loan Party or one of its Subsidiaries with a fair market value in excess of $10,000,000.
“Receivable Reserves” means, as of any date of determination, those reserves that Agent deems necessary or appropriate, in its Permitted Discretion and subject to Section 2.1(c) of this Agreement, to establish and maintain (including Landlord Reserves for books and records locations and reserves for rebates, discounts, warranty claims, and returns) with respect to the Eligible Accounts or the Maximum Revolver Amount.
“Recipient” means (a) the Agent, (b) any Lender or (c) any Issuing Bank, as applicable.
“Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
“Reference Period” has the meaning set forth in the definition of EBITDA.
“Refinancing Indebtedness” means refinancings, renewals, or extensions of Indebtedness so long as:
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[AerSale] Amended and Restated Credit Agreement
“Register” has the meaning set forth in Section 13.1(h) of this Agreement.
“Registered Loan” has the meaning set forth in Section 13.1(h) of this Agreement.
“Related Fund” means any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course and that is administered, advised or managed by (a) a Lender, (b) an Affiliate of a Lender, or (c) an entity or an Affiliate of an entity that administers, advises or manages a Lender.
“Relevant Governmental Body” means the FRB and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the FRB and/or the Federal Reserve Bank of New York or any successor thereto.
“Remedial Action” means all actions taken to (a) clean up, remove, remediate, contain, treat, monitor, assess, evaluate, or in any way address Hazardous Materials in the indoor or outdoor environment, (b) prevent or minimize a release or threatened release of Hazardous Materials so they do not migrate or endanger or threaten to endanger public health or welfare or the indoor or outdoor environment, (c) restore or reclaim natural resources or the environment, (d) perform any pre-remedial studies, investigations, or post-remedial operation and maintenance activities, or (e) conduct any other actions with respect to Hazardous Materials required by Environmental Laws.
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[AerSale] Amended and Restated Credit Agreement
“Replacement Lender” has the meaning specified therefor in Section 2.14(b) of this Agreement.
“Report” has the meaning specified therefor in Section 15.16 of this Agreement.
“Required Availability” means that the Excess Availability exceeds $50,000,000.
“Required Lenders” means, at any time, Lenders having or holding more than 50% of the sum of the aggregate Revolving Loan Exposure of all Lenders; provided, that the Revolving Loan Exposure of any Defaulting Lender shall be disregarded in the determination of the Required Lenders.
“Reserves” means, as of any date of determination, Receivables Reserves, Aircraft Reserves, Engine Reserves, Parts Reserves, Bank Product Reserves and those other reserves that Agent deems necessary or appropriate, in its Permitted Discretion and subject to Section 2.1(c) of this Agreement, to establish and maintain (including reserves with respect to (a) sums that any Loan Party or its Subsidiaries are required to pay under any Section of this Agreement or any other Loan Document (such as Taxes, assessments, insurance premiums, or, in the case of leased assets, rents or other amounts payable under such leases) and has failed to pay, and (b) amounts owing by any Loan Party or its Subsidiaries to any Person to the extent secured by a Lien on, or trust over, any of the Collateral (other than a Permitted Lien), which Lien or trust, in the Permitted Discretion of Agent likely would have a priority superior to Agent’s Liens (such as Liens or trusts in favor of landlords, warehousemen, carriers, mechanics, materialmen, laborers, or suppliers, or Liens or trusts for ad valorem, excise, sales, or other taxes where given priority under applicable law) in and to such item of the Collateral) with respect to the Borrowing Base or the Maximum Revolver Amount.
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Restricted Payment” means (a) any declaration or payment of any dividend or the making of any other payment or distribution, directly or indirectly, on account of Equity Interests issued by Parent or any of its Subsidiaries (including any payment in connection with any merger or consolidation involving Parent) or to the direct or indirect holders of Equity Interests issued by Parent or any of its Subsidiaries in their capacity as such (other than dividends or distributions payable in Qualified Equity Interests issued by Parent or any of its Subsidiaries, or (b) any purchase, redemption, making of any sinking fund or similar payment, or other acquisition or retirement for value (including in connection with any merger or consolidation involving Parent) any Equity Interests issued by Parent or any of its Subsidiaries, or (c) any making of any payment to retire, or to obtain the surrender of, any outstanding warrants, options, or other rights to acquire Equity Interests of Parent now or hereafter outstanding. The amount of any Restricted Payment made with assets or property that is not cash shall be the fair market value thereof.
“Restricted Subsidiary” means any Subsidiary of a Borrower other than an Unrestricted Subsidiary.
“Revolver Commitment” means, with respect to each Revolving Lender, its Revolver Commitment, and, with respect to all Revolving Lenders, their Revolver Commitments, in each case as such Dollar amounts are set forth beside such Revolving Lender’s name under the applicable heading on Schedule C-1 to this Agreement or in the Assignment and Acceptance or Increase Joinder pursuant to which such Revolving Lender became a Revolving Lender under this Agreement, as such amounts may be reduced or increased from time to time pursuant to the terms hereof (including Section 2.15 and Section 13.1 of this Agreement), and as such amounts may be decreased by the amount of reductions in the Revolver
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[AerSale] Amended and Restated Credit Agreement
Commitments made in accordance with Section 2.4(c) of this Agreement.
“Revolver Usage” means, as of any date of determination, the sum of (a) the amount of outstanding Revolving Loans (inclusive of Swing Loans and Protective Advances), plus (b) the amount of the Letter of Credit Usage.
“Revolving Credit Facility” means the revolving credit facility established pursuant to Article II (including any increase in such revolving credit facility pursuant to Section 2.15).
“Revolving Lender” means a Lender that has a Revolving Loan Exposure or Letter of Credit Exposure.
“Revolving Loan Base Rate Margin” has the meaning set forth in the definition of Applicable Margin.
“Revolving Loan Exposure” means, with respect to any Revolving Lender, as of any date of determination (a) prior to the termination of the Revolver Commitments, the amount of such Lender’s Revolver Commitment, and (b) after the termination of the Revolver Commitments, the aggregate outstanding principal amount of the Revolving Loans of such Lender.
“Revolving Loan SOFR Rate Margin” has the meaning set forth in the definition of Applicable Margin.
“Revolving Loans” has the meaning specified therefor in Section 2.1(a) of this Agreement.
“Sanctioned Entity” means (a) a country or territory or a government of a country or territory (b) an agency of the government of a country or territory, (c) an organization directly or indirectly controlled by a country or its government, or (d) a Person resident in or determined to be resident in a country or territory, in each case of clauses (a) through (d) that is a target of Sanctions, including a target of any country or territory sanctions program administered and enforced by OFAC.
“Sanctioned Person” means, at any time (a) any Person named on the list of Specially Designated Nationals and Blocked Persons maintained by OFAC, OFAC’s consolidated Non-SDN list or any other Sanctions-related list maintained by any Governmental Authority, (b) a Person or legal entity that is a target of Sanctions, (c) any Person operating, organized or resident in a Sanctioned Entity, or (d) any Person directly or indirectly owned or controlled (individually or in the aggregate) by or acting on behalf of any such Person or Persons described in clauses (a) through (c) above.
“Sanctions” means individually and collectively, respectively, any and all economic sanctions, trade sanctions, financial sanctions, sectoral sanctions, secondary sanctions, trade embargoes anti-terrorism laws and other sanctions laws, regulations or embargoes, including those imposed, administered or enforced from time to time by: (a) the United States of America, including those administered by OFAC, the U.S. Department of State, the U.S. Department of Commerce, or through any existing or future executive order, (b) the United Nations Security Council, (c) the European Union or any European Union member state, (d) His Majesty’s Treasury of the United Kingdom, (e) the Hong Kong Monetary Authority or (f) any other Governmental Authority with jurisdiction over any member of Lender Group or any Loan Party or any of their respective Subsidiaries or Affiliates.
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[AerSale] Amended and Restated Credit Agreement
“S&P” has the meaning specified therefor in the definition of Cash Equivalents.
“SEC” means the United States Securities and Exchange Commission and any successor thereto.
“Second Amendment Effective Date” means March 12, 2021.
“Securities Account” means a securities account (as that term is defined in the Code).
“Securities Act” means the Securities Act of 1933, as amended from time to time, and any successor statute.
“Settlement” has the meaning specified therefor in Section 2.3(e)(i) of this Agreement.
“Settlement Date” has the meaning specified therefor in Section 2.3(e)(i) of this Agreement.
“SOFR” means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.
“SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).
“SOFR Deadline” has the meaning specified therefor in Section 2.12(b)(i) of this Agreement.
“SOFR Loan” means any Loan bearing interest at a rate based on Adjusted Term SOFR as provided in Section 2.12(a).
“SOFR Notice” means a written notice in form of Exhibit L-1 to this Agreement.
“SOFR Option” has the meaning specified therefor in Section 2.12(a) of this Agreement.
“SOFR Rate Margin” means the Revolving Loan SOFR Rate Margin.
“Solvent” means, with respect to any Person as of any date of determination, that (a) at fair valuations, the sum of such Person’s debts (including contingent liabilities) is less than all of such Person’s assets, (b) such Person is not engaged or about to engage in a business or transaction for which the remaining assets of such Person are unreasonably small in relation to the business or transaction or for which the property remaining with such Person is an unreasonably small capital, (c) such Person has not incurred and does not intend to incur, or reasonably believe that it will incur, debts beyond its ability to pay such debts as they become due (whether at maturity or otherwise), and (d) such Person is “solvent” or not “insolvent”, as applicable within the meaning given those terms and similar terms under applicable laws including laws relating to fraudulent or unfair transfers and conveyances. For purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liabilities meet the criteria for accrual under Statement of Financial Accounting Standard No. 5).
“Specified Aviation Equipment Criteria” shall mean, with respect to any Whole Aircraft or Whole Engine, all of the following:
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[AerSale] Amended and Restated Credit Agreement
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[AerSale] Amended and Restated Credit Agreement
“Specified Collateral” has the meaning specified therefor in the Guaranty and Security Agreement.
“Specified Permitted Liens” shall mean (i) with respect to Eligible Whole Aircraft Collateral and Eligible Whole Engine Collateral, Permitted Liens described in items (a), (b) or (g) of the definition of “Permitted Liens,” Statutory Liens and Lease Transaction Liens, and (ii) otherwise, Permitted Liens which are non-consensual Permitted Liens, permitted purchase money Liens or the interests of lessors under Capital Leases.
“Specified Restricted Payment” means that certain purchase by the Parent of Equity Interests issued by the Parent in the amount of $22,204,000, that occurred on November 16, 2022.
“Specified Transaction” means any Investment, Permitted Indebtedness Prepayment, Restricted Payment (or declaration of any prepayment or Restricted Payment) or transaction with Affiliate.
“Sponsor” means Leonard Green & Partners, L.P. and its Affiliates.
“Sponsor Affiliated Entity” means Sponsor or any of its Affiliates (other than Loan Parties or their Subsidiaries and other than operating portfolio companies of Sponsor and its Affiliates).
“Standard Letter of Credit Practice” means, for Issuing Bank, any domestic or foreign law or letter of credit practices applicable in the city in which Issuing Bank issued the applicable Letter of Credit or, for its branch or correspondent, such laws and practices applicable in the city in which it has advised, confirmed or negotiated such Letter of Credit, as the case may be, in each case, (a) which letter of credit practices are of banks that regularly issue letters of credit in the particular city, and (b) which laws or letter of credit practices are required or permitted under ISP or UCP, as chosen in the applicable Letter of Credit.
“Statutory Lien” means any Permitted Lien arising solely by operation of law and not by contract in respect of which there is no likelihood that the continuance or existence of the same would or could result in any sale, loss or forfeiture of any Collateral and/or any criminal or civil penalties against Agent or any Lender; provided, that such lien does not exist for a period of more than thirty (30) days or is the subject of a Permitted Protest.
“Subordinated Indebtedness” means any Indebtedness of any Loan Party or its Subsidiaries incurred from time to time that is subordinated in right of payment to the Obligations and is subject to a Subordination Agreement or contains terms and conditions of subordination that are acceptable to Agent.
“Subordination Agreement” means an agreement between Agent and the provider of any Subordinated Indebtedness that contains terms and conditions of subordination that are acceptable to Agent.
“Subsidiary” of a Person means a corporation, partnership, limited liability company, trust or other entity in which that Person directly or indirectly owns or controls (i) the Equity Interests having ordinary voting power to elect a majority of the Board of Directors of such corporation, partnership, limited liability company or other entity, or (ii) in the case of a trust, more than 50% of the beneficial interests thereof.
“Supermajority Lenders” means, at any time, Revolving Lenders having or holding more than 66
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2/3% of the aggregate Revolving Loan Exposure of all Revolving Lenders; provided, that (i) the Revolving Loan Exposure of any Defaulting Lender shall be disregarded in the determination of the Supermajority Lenders, and (ii) at any time there are two or more Revolving Lenders (who are not Affiliates of one another), “Supermajority Lenders” must include at least two Revolving Lenders (who are not Affiliates of one another or Defaulting Lenders).
“Supported QFC” has the meaning specified therefor in Section 17.15 of this Agreement.
“Swap Obligation” means, with respect to any Loan Party, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.
“Swing Lender” means Wells Fargo or any other Lender that, at the request of Borrowers and with the consent of Agent agrees, in such Lender’s sole discretion, to become the Swing Lender under Section 2.3(b) of this Agreement.
“Swing Loan” has the meaning specified therefor in Section 2.3(b) of this Agreement.
“Swing Loan Exposure” means, as of any date of determination with respect to any Lender, such Lender’s Pro Rata Share of the Swing Loans on such date.
“Syndication Agent” has the meaning set forth in the preamble to this Agreement.
“Synovus Facility” means that certain Loan Agreement, dated as of June 30, 2023, by and between AerSale and Synovus Bank, its successors and/or assigns.
“Taxes” means any taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein, and all interest, penalties or similar liabilities with respect thereto.
“Tax Lender” has the meaning specified therefor in Section 14.2(a) of this Agreement.
“TCA” means the Taxes Consolidation Act 1997 of Ireland.
“Term SOFR” means,
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“Term SOFR Adjustment” means a percentage equal to 0.10% per annum.
“Term SOFR Administrator” means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the Agent in its reasonable discretion).
“Term SOFR Reference Rate” means the forward-looking term rate based on SOFR.
“Title IV Plan” means a Pension Plan, that is covered by Title IV of ERISA, and that any Borrower or ERISA Affiliate maintains, contributes to or has an obligation to contribute to on behalf of participants who are or were employed by any of them.
“Total Debt” shall mean all Indebtedness of Parent, on a consolidated basis, in the amount that would be reflected on the face of a balance sheet prepared in accordance with GAAP.
“Trademark Security Agreement” has the meaning specified therefor in the Guaranty and Security Agreement.
“UCP” means, with respect to any Letter of Credit, the Uniform Customs and Practice for Documentary Credits 2007 Revision, International Chamber of Commerce Publication No. 600 and any version or revision thereof accepted by Issuing Bank for use.
“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“Unadjusted Benchmark Replacement” means the Benchmark Replacement excluding the Benchmark Replacement Adjustment.
“Unapproved Foreign Jurisdiction” means Turkey, China, Russia, Jordan, South Africa or any other foreign jurisdiction designated as such by Agent in its Permitted Discretion by 30 days prior written notice
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to Borrowers.
“Unfinanced Capital Expenditures” means Capital Expenditures (a) not financed with the proceeds of any incurrence of Indebtedness (including, with respect to the purchase of assets to be held for lease, the incurrence of any Revolving Loans, but otherwise excluding the incurrence of any Revolving Loans), the proceeds of any sale or issuance of Equity Interests or equity contributions, the proceeds of any asset sale (other than the sale of Inventory in the ordinary course of business) or any insurance proceeds, and (b) that are either (i) not reimbursed by a third person (excluding any Loan Party or any of its Affiliates) in the period such expenditures are made pursuant to a written agreement or (ii) not reimbursable by a third person (excluding any Loan Party or any of its Affiliates) pursuant to a written agreement.
“United States” means the United States of America.
“Unrestricted Subsidiary” means any Subsidiary of a Borrower designated as such in the following sentence or designated by a Borrower as an Unrestricted Subsidiary pursuant to Section 5.18 subsequent to the date hereof, in each case, until such Person ceases to be an Unrestricted Subsidiary of a Borrower or ceases to be a Subsidiary of a Borrower. As of the Closing Date, the following Subsidiaries constitute Unrestricted Subsidiaries: (i) AERSALE USA 2 LLC, (ii) AERSALE USA 2 SUB LLC, (iii) AERSALE 27043 LLC and (iv) GABLES MSN 26343 LIMITED.
“Unused Line Fee” has the meaning specified therefor in Section 2.10(b) of this Agreement.
“U.S. Government Securities Business Day” means any day except for (a) a Saturday, (b) a Sunday or (c) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities; provided, that for purposes of notice requirements in Sections 2.3(a) and 2.12(b), in each case, such day is also a Business Day.
“U.S. Special Resolution Regimes” has the meaning specified therefor in Section 17.15 of this Agreement.
“Voidable Transfer” has the meaning specified therefor in Section 17.8 of this Agreement.
“Wells Fargo” means Wells Fargo Bank, National Association, a national banking association.
“Whole Aircraft” means any airframe that is within the scope of the definition of Eligible Whole Aircraft Collateral without considering the criteria set forth in such definition.
“Whole Engine” means any aircraft engine that is within the scope of the definition of Eligible Whole Engine Collateral without considering the criteria set forth in such definition.
“Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other
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person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
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shall mean (a) the payment or repayment in full in immediately available funds of (i) the principal amount of, and interest accrued and unpaid with respect to, all outstanding Loans, together with the payment of any premium applicable to the repayment of the Loans, (ii) all Lender Group Expenses that have accrued and are unpaid regardless of whether demand has been made therefor, and (iii) all fees or charges that have accrued hereunder or under any other Loan Document (including the Letter of Credit Fee and the Unused Line Fee) and are unpaid, (b) in the case of contingent reimbursement obligations with respect to Letters of Credit, providing Letter of Credit Collateralization, (c) in the case of obligations with respect to Bank Products (other than Hedge Obligations), providing Bank Product Collateralization, (d) the receipt by Agent of cash collateral in order to secure any other contingent Obligations for which a claim or demand for payment has been made on or prior to such time or in respect of matters or circumstances known to Agent or a Lender at such time that are reasonably expected to result in any loss, cost, damage, or expense (including attorneys’ fees and legal expenses), such cash collateral to be in such amount as Agent reasonably determines is appropriate to secure such contingent Obligations, (e) the payment or repayment in full in immediately available funds of all other outstanding Obligations (including the payment of any termination amount then applicable (or which would or could become applicable as a result of the repayment of the other Obligations) under Hedge Agreements provided by Hedge Providers) other than (i) unasserted contingent indemnification Obligations, (ii) any Bank Product Obligations (other than Hedge Obligations) that, at such time, are allowed by the applicable Bank Product Provider to remain outstanding without being required to be repaid or cash collateralized, and (iii) any Hedge Obligations that, at such time, are allowed by the applicable Hedge Provider to remain outstanding without being required to be repaid, and (f) the termination of all of the Commitments of the Lenders. Any reference herein to any Person shall be construed to include such Person’s successors and assigns. Any requirement of a writing contained herein or in any other Loan Document shall be satisfied by the transmission of a Record.
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adverse to the Borrowers. The Agent may select information sources or services in its reasonable discretion to ascertain the Term SOFR Reference Rate, Adjusted Term SOFR or Term SOFR, or any other Benchmark, any component definition thereof or rates referred to in the definition thereof, in each case pursuant to the terms of this Agreement, and shall have no liability to the Borrowers, any Lender or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.
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received from anyone purporting to be an Authorized Person or, without instructions, if pursuant to Section 2.6(d) of this Agreement. Borrowers agree to establish and maintain the Designated Account with the Designated Account Bank for the purpose of receiving the proceeds of the Revolving Loans requested by Borrowers and made by Agent or the Lenders hereunder. Unless otherwise agreed by Agent and Borrowers, any Revolving Loan or Swing Loan requested by Borrowers and made by Agent or the Lenders hereunder shall be made to the Designated Account.
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provided, that such indemnity shall not be available to any Letter of Credit Related Person claiming indemnification under clauses (i) through (x) above to the extent that such Letter of Credit Indemnified Costs may be finally determined in a final, non-appealable judgment of a court of competent jurisdiction to have resulted directly from the gross negligence or willful misconduct of the Letter of Credit Related Person claiming indemnity. Borrowers hereby agree to pay the Letter of Credit Related Person claiming indemnity on demand from time to time all amounts owing under this Section 2.11(f) of this Agreement. If and to the extent that the obligations of Borrowers under this Section 2.11(f) of this Agreement are unenforceable for any reason, Borrowers agree to make the maximum contribution to the Letter of Credit Indemnified Costs permissible under applicable law. This indemnification provision shall survive termination of this Agreement and all Letters of Credit.
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provided, that subject to Section 2.11(g) of this Agreement above, the foregoing shall not release Issuing Bank from such liability to Borrowers as may be finally determined in a final, non-appealable judgment of a court of competent jurisdiction against Issuing Bank following reimbursement or payment of the obligations and liabilities, including reimbursement and other payment obligations, of Borrowers to Issuing Bank arising under, or in connection with, this Section 2.11 of this Agreement or any Letter of Credit.
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and the result of the foregoing is to increase, directly or indirectly, the cost to Issuing Bank or any other member of the Lender Group of issuing, making, participating in, or maintaining any Letter of Credit or to reduce the amount receivable in respect thereof, then, and in any such case, Agent may, at any time within a reasonable period after the additional cost is incurred or the amount received is reduced, notify Borrowers, and Borrowers shall pay within 30 days after demand therefor, such amounts as Agent may specify to be necessary to compensate Issuing Bank or any other member of the Lender Group for such additional cost or reduced receipt, together with interest on such amount from the date of such demand until payment in full thereof at the rate then applicable to Base Rate Loans hereunder; provided, that (A) Borrowers shall not be required to provide any compensation pursuant to this Section 2.11(l) of this Agreement for any such amounts incurred more than 180 days prior to the date on which the demand for payment of such amounts is first made to Borrowers, and (B) if an event or circumstance giving rise to such amounts is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof. The determination by Agent of any amount due pursuant to this Section 2.11(l) of this Agreement, as set forth in a certificate setting forth the calculation thereof in reasonable detail, shall, in the absence of manifest or demonstrable error, be final and conclusive and binding on all of the parties hereto.
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and the result of any of the foregoing shall be to increase the cost to such Lender, any Issuing Bank or such other Recipient 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, such Issuing Bank or such other Recipient 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, such Issuing Bank or such other Recipient hereunder (whether of principal, interest or any other amount) then, upon written request of such Lender, such Issuing Bank or other Recipient, the Borrower shall promptly pay to any such Lender, such Issuing Bank or other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender, such Issuing Bank or other Recipient, as the case may be, for such additional costs incurred or reduction suffered.
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Hedge Obligations) immediately shall become due and payable without notice or demand and Borrowers shall be required to repay all of the Obligations (other than Hedge Obligations) in full. No termination of the obligations of the Lender Group (other than payment in full of the Obligations and termination of the Commitments) shall relieve or discharge any Loan Party of its duties, obligations, or covenants hereunder or under any other Loan Document and Agent’s Liens in the Collateral shall continue to secure the Obligations and shall remain in effect until all Obligations (other than contingent obligations with respect to which no claim has been made) have been paid in full. When all of the Obligations have been paid in full (other than contingent obligations with respect to which no claim has been made), Agent will, at Borrowers’ sole expense, execute and deliver any termination statements, lien releases, discharges of security interests, and other similar discharge or release documents (and, if applicable, in recordable form) as are reasonably necessary to release, as of record, Agent’s Liens and all notices of security interests and liens previously filed by Agent.
In order to induce the Lender Group to enter into this Agreement, each Parent Company and each Borrower makes the following representations and warranties to the Lender Group which shall be true, correct, and complete, in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof), as of the Closing Date, and shall be true, correct, and complete, in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof), as of the date of the making of each Revolving Loan (or other extension of credit) made thereafter, as though made on and as of the date of such Revolving Loan (or other extension of credit) (except to the extent that such representations and warranties relate solely to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) as of such earlier date), and such representations and warranties shall survive the execution and delivery of this Agreement:
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America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act of 2001, as amended) (the “Patriot Act”).
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operations in, finance any investments or activities in, or make any payments to, a Sanctioned Person or a Sanctioned Entity, or otherwise used in any manner that would result in a violation of any Sanction, Anti-Corruption Law or Anti-Money Laundering Law by any Person (including any Agent, arranger, underwriter, advisor, investor, Issuing Bank, Lender, Bank Product Provider, or other individual or entity participating in any transaction).
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Borrowing Base Certificate submitted to Agent, such Whole Aircraft, Whole Engine or Part is not excluded as ineligible by virtue of one or more of the excluding criteria (other than any Agent-discretionary criteria) set forth in the definition of Eligible Whole Aircraft Collateral, Eligible Whole Engine Collateral or Eligible Parts, as applicable.
Each Parent Company and each Borrower covenants and agrees that, until the termination of all of the Commitments and payment in full of the Obligations:
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copies to each Lender, each of the financial statements, reports, and other items set forth on Schedule 5.1 to this Agreement no later than the times specified therein, (b) agree that no Subsidiary of a Loan Party will have a fiscal year different from that of Parent and (c) agree to maintain a system of accounting that enables Borrowers to produce financial statements in accordance with GAAP.
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All such policies of insurance shall be with financially sound and reputable insurance companies acceptable to Agent in its Permitted Discretion and in such amounts as is carried generally in accordance with sound business practice by companies in similar businesses similarly situated and located and, in any event, in amount, adequacy, and scope reasonably satisfactory to Agent (it being agreed that the amount, adequacy, and scope of the policies of insurance of Borrowers in effect as of the Closing Date are acceptable to Agent). No later than the Closing Date, Borrowers shall deliver insurance certificates to Agent for all insurance policies required above, which shall (i) name Agent and each Lender as an “additional insured” if such policy is a liability policy, (ii) name Agent for itself and on behalf of the Lenders as “contract party” or “lender’s loss payee” for all property, hull, or spares policy, and for all insurance required above, (iii) provide that, Agent and each Lender shall be notified in writing by the insurer(s) of any proposed cancellation, termination or material change in respect of such policy, at least thirty (30) days prior to any proposed cancellation, termination or material change and seven (7) days in respect of cancellation for war risk (or such lesser period that may be stated in any automatic termination provision in such policy), (iv) contain a waiver of subrogation in favor of Agent for itself and on behalf of the Lenders; (v) contain a
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breach of warranty provision in favor of the Agent and Lender; (vi) provide that the insurance shall be primary and without right of contribution from any other insurance which may be available to Agent and Lenders, (vii) provide that Agent and Lenders have no responsibility for premiums, warranties or representations to underwriters, except for such premium that may be directly attributable to a particular aircraft, engine or parts that are subject of a claim. If any Loan Party or its Subsidiaries fails to maintain such insurance, Agent may arrange for such insurance, but at Borrowers’ expense and without any responsibility on Agent’s part for obtaining the insurance, the solvency of the insurance companies, the adequacy of the coverage, or the collection of claims. Borrowers shall give Agent prompt notice of any loss exceeding $10,000,000 covered by the casualty or business interruption insurance of any Loan Party or its Subsidiaries. Upon the occurrence and during the continuance of an Event of Default, Agent shall have the sole right to file claims under any property insurance policies of any loss in respect of the Collateral exceeding $10,000,000, to receive, receipt and give acquittance for any payments that may be payable thereunder, and to execute any and all endorsements, receipts, releases, assignments, reassignments or other documents that may be necessary to effect the collection, compromise or settlement of any claims under any such insurance policies.
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other security agreements (including satisfaction of the Perfection Requirements or Limited Perfection Requirements, as applicable, pursuant to the Guaranty and Security Agreement, with respect to any Whole Aircraft or Whole Engines owned by such new Subsidiary and delivery of Mortgages with respect to any Real Property owned in fee of such new Subsidiary constituting Real Property Collateral), as well as appropriate financing statements (and with respect to all property subject to a Mortgage, fixture filings), all in form and substance reasonably satisfactory to Agent (including being sufficient to grant Agent a first priority Lien (subject to Permitted Liens) in and to the assets of such newly formed or acquired Subsidiary) and to comply with the provisions of Section 5.17 below, as applicable, (b) provide, or cause the applicable Loan Party to provide, to Agent a pledge agreement (or an addendum to the Guaranty and Security Agreement) and appropriate certificates and powers or financing statements, pledging all of the direct or beneficial ownership interest in such new Subsidiary in form and substance reasonably satisfactory to Agent; provided, that, solely with respect to any such new Subsidiary that (i) is a Foreign Subsidiary and is a first tier Subsidiary of a Loan Party or (ii) is a CFC, and, in each case, is not joined or to be joined as a Borrower or other Loan Party hereunder, only 65% of the total outstanding voting Equity Interests of such new Foreign Subsidiary (and none of the Equity Interests of any Subsidiary of such new Foreign Subsidiary) shall be required to be pledged if pledging a greater amount would result in adverse tax consequences or the costs to the Loan Parties of providing such pledge are unreasonably excessive (as determined by Agent in consultation with Borrowers) in relation to the benefits to Agent and the Lenders of the security afforded thereby (which pledge, if reasonably requested by Agent, shall be governed by the laws of the jurisdiction of such Subsidiary), and (c) provide to Agent all other documentation, including the Governing Documents of such Subsidiary and upon request, one or more opinions of counsel reasonably satisfactory to Agent, which, in its opinion, is appropriate with respect to the execution and delivery of the applicable documentation referred to above (including policies of title insurance, flood certification documentation or other documentation with respect to all Real Property owned in fee and subject to a Mortgage). Any document, agreement, or instrument executed or issued pursuant to this Section 5.11 shall constitute a Loan Document.
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Subsidiary as a Restricted Subsidiary; provided that (i) immediately before and after such designation (or re-designation), no Default shall have occurred and be continuing, (ii) no Borrower may be designated as an Unrestricted Subsidiary, (iii) no Unrestricted Subsidiary shall own any Equity Interests in any Restricted Subsidiary, (iv) no Unrestricted Subsidiary shall hold any Indebtedness of, or any Lien on any property of, any Borrower or any Restricted Subsidiary, (v) no Unrestricted Subsidiary shall be a party to any transaction or arrangement with any Borrower or any of its Restricted Subsidiaries that would not be permitted by Section 6.10 or Section 6.15 of this Agreement, (vi) none of Parent or any of its Restricted Subsidiaries shall have any obligation to subscribe for additional Equity Interests of any Unrestricted Subsidiary or to preserve or maintain the financial condition of any Unrestricted Subsidiary and (vii) such designation shall be permitted by Section 6.15 of this Agreement. The designation of any Subsidiary as an Unrestricted Subsidiary shall constitute an Investment by a Borrower or its Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of a Borrower’s or such Restricted Subsidiary’s (as applicable) Investment therein (provided that, with respect to assets owned by such Subsidiary at the time of such designation, such Investment shall be deemed to be an Investment of such assets in an amount equal to the fair market value thereof and any Investments such Restricted Subsidiary is contractually obligated to make after such designation, together with the incurrence at the time of designation of any Indebtedness of such Subsidiary existing at such time. The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the incurrence at the time of designation of any Indebtedness and Liens of such Subsidiary existing at such time and a return on any Investment by a Borrower or such Restricted Subsidiary in Unrestricted Subsidiaries pursuant to the preceding sentence in an amount equal to the fair market value at the date of such designation of a Borrower’s or its Restricted Subsidiary’s (as applicable) Investment in such Subsidiary. Each Loan Party shall cause each of the Restricted Subsidiaries and Unrestricted Subsidiaries to satisfy customary corporate and other formalities..
Each Parent Company and each Borrower covenants and agrees that, until the termination of all of the Commitments and the payment in full of the Obligations:
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Letter of Credit will be used, directly or indirectly, in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Sanctions, Anti-Corruption Laws or Anti-Money Laundering Laws.
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Each Parent Company and each Borrower covenants and agrees that, until the termination of all of the Commitments and the payment in full of the Obligations, Parent and Borrowers will:
Any one or more of the following events shall constitute an event of default (each, an “Event of Default”) under this Agreement:
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The foregoing to the contrary notwithstanding, upon the occurrence of any Event of Default described in Section 8.4 or Section 8.5 of this Agreement, in addition to the remedies set forth above, without any notice to Borrowers or any other Person or any act by the Lender Group, the Commitments shall automatically terminate and the Obligations (other than the Bank Product Obligations), inclusive of the principal of, and any and all accrued and unpaid interest and fees in respect of, the Loans and all other Obligations (other than the Bank Product Obligations), whether evidenced by this Agreement or by any of the other Loan Documents, shall automatically become and be immediately due and payable and Borrowers shall automatically be obligated to repay all of such Obligations in full (including Borrowers being obligated to provide (and Borrowers agree that they will provide) (1) Letter of Credit Collateralization to Agent to be held as security for Borrowers’ reimbursement obligations in respect of drawings that may subsequently occur under issued and outstanding Letters of Credit and (2) Bank Product Collateralization to be held as security for Borrowers’ or their Subsidiaries’ obligations in respect of outstanding Bank Products), without presentment, demand, protest, or notice or other requirements of any kind, all of which are expressly waived by each Parent Company and Borrowers.
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settlement, extension, or renewal of documents, instruments, chattel paper, and guarantees at any time held by the Lender Group on which any Borrower may in any way be liable.
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SHALL APPLY TO EACH INDEMNIFIED PERSON WITH RESPECT TO INDEMNIFIED LIABILITIES WHICH IN WHOLE OR IN PART ARE CAUSED BY OR ARISE OUT OF ANY NEGLIGENT ACT OR OMISSION OF SUCH INDEMNIFIED PERSON OR OF ANY OTHER PERSON.
Unless otherwise provided in this Agreement, all notices or demands relating to this Agreement or any other Loan Document shall be in writing and (except for financial statements and other informational documents which may be sent by first-class mail, postage prepaid) shall be personally delivered or sent by registered or certified mail (postage prepaid, return receipt requested), overnight courier, electronic mail (at such email addresses as a party may designate in accordance herewith), or telefacsimile. In the case of notices or demands to any Loan Party or Agent, as the case may be, they shall be sent to the respective address set forth below:
If to any Loan Party:c/o AerSale, Inc.
121 Alhambra Plaza, Suite 1700
Coral Gables, FL 33134
Attention: Scott Stewart
Email:[* * *]
with copies to:Latham & Watkins LLP
885 Third Avenue
New York, NY 10022
Attention: Joshua Tinkelman
Email:[* * *]
If to Agent:Wells Fargo Bank, National Association
2450 Colorado Avenue, Suite 3000 West
Santa Monica, CA 90404
Attention: Cameron Scott
Email:[* * *]
with copies to:Holland & Knight LLP
50 California Street, Suite 2800
San Francisco, CA 94111
Attention: William Piels
Email:[* * *]
Any party hereto may change the address at which they are to receive notices hereunder, by notice in writing in the foregoing manner given to the other party. All notices or demands sent in accordance with this Section 11, shall be deemed received on the earlier of the date of actual receipt or three Business Days after the deposit thereof in the mail; provided, that (a) notices sent by overnight courier service shall be deemed to have been given when received, (b) notices by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient) and (c) notices by electronic mail 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 email or other written acknowledgment).
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| B. | Agent, Swing Lender, and Issuing Bank. |
| A. | no assignment may be made to (1) a Disqualified Institution or (2) a natural person, |
| B. | no assignment may be made to a Loan Party, an Affiliate of a Loan Party, or any Sponsor Affiliated Entity, |
| D. | 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, |
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[AerSale] Amended and Restated Credit Agreement
| F. | unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent’s separate account, a processing fee in the amount of $3,500, and |
| G. | the assignee, if it is not a Lender, shall deliver to Agent an Administrative Questionnaire in a form approved by Agent (the “Administrative Questionnaire”). |
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Notwithstanding anything in this Agreement to the contrary, each Lender hereby irrevocably authorizes the Agent on its behalf, and without further consent of any Lender (but with the consent of the Borrowers and the Agent), to enter into amendments or modifications to this Agreement (including amendments to this Section 14.1) or any of the other Loan Documents or to enter into additional Loan Documents as the Agent reasonably deems appropriate in order to effectuate the terms of Section 2.15 (including as applicable, (1) to permit the Incremental Increase to share ratably in the benefits of this Agreement and the other Loan Documents, (2) to include the Incremental Increase, as applicable, in any determination of (i) Required Lenders or (ii) similar required lender terms applicable thereto); provided that no amendment or modification shall result in any increase in the amount of any Lender’s Commitment or any increase in any Lender’s Revolving Loan Exposure, Swing Loan Exposure or Letter of Credit Exposure, in each case, without the written consent of such affected Lender.
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respect to any Collateral or Loan Documents which may be necessary to perfect, and maintain perfected, the security interests and Liens upon Collateral pursuant to the Loan Documents, (c) make Revolving Loans, for itself or on behalf of Lenders, as provided in the Loan Documents, (d) exclusively receive, apply, and distribute payments and proceeds of the Collateral as provided in the Loan Documents, (e) open and maintain such bank accounts and cash management arrangements as Agent deems necessary and appropriate in accordance with the Loan Documents for the foregoing purposes, (f) perform, exercise, and enforce any and all other rights and remedies of the Lender Group with respect to any Loan Party or its Subsidiaries, the Obligations, the Collateral, or otherwise related to any of same as provided in the Loan Documents, and (g) incur and pay such Lender Group Expenses as Agent may deem necessary or appropriate for the performance and fulfillment of its functions and powers pursuant to the Loan Documents.
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[AerSale] Amended and Restated Credit Agreement
continuing to take any such action. Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement or any other Loan Document in accordance with a request or consent of the Required Lenders and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Lenders (and Bank Product Providers).
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representatives’ possession before or after the date on which such Lender became a party to this Agreement (or such Bank Product Provider entered into a Bank Product Agreement).
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[AerSale] Amended and Restated Credit Agreement
Required Lenders) and Borrowers (unless such notice is waived by Borrowers or a Default or Event of Default has occurred and is continuing) and without any notice to the Bank Product Providers. If Agent resigns under this Agreement, the Required Lenders shall be entitled, with (so long as no Event of Default has occurred and is continuing) the consent of Borrowers (such consent not to be unreasonably withheld, delayed, or conditioned), appoint a successor Agent for the Lenders (and the Bank Product Providers). If, at the time that Agent’s resignation is effective, it is acting as Issuing Bank or the Swing Lender, such resignation shall also operate to effectuate its resignation as Issuing Bank or the Swing Lender, as applicable, and it shall automatically be relieved of any further obligation to issue Letters of Credit, or to make Swing Loans. If no successor Agent is appointed prior to the effective date of the resignation of Agent, Agent may appoint, after consulting with the Lenders and Borrowers, a successor Agent. If Agent has materially breached or failed to perform any material provision of this Agreement or of applicable law, the Required Lenders may agree in writing to remove and replace Agent with a successor Agent from among the Lenders with (so long as no Event of Default has occurred and is continuing) the consent of Borrowers (such consent not to be unreasonably withheld, delayed, or conditioned). In any such event, upon the acceptance of its appointment as successor Agent hereunder, such successor Agent shall succeed to all the rights, powers, and duties of the retiring Agent and the term “Agent” shall mean such successor Agent and the retiring Agent’s appointment, powers, and duties as Agent shall be terminated. After any retiring Agent’s resignation hereunder as Agent, the provisions of this Section 15 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Agent under this Agreement. If no successor Agent has accepted appointment as Agent by the date which is 30 days following a retiring Agent’s notice of resignation, the retiring Agent’s resignation shall nevertheless thereupon become effective and the Lenders shall perform all of the duties of Agent hereunder until such time, if any, as the Lenders appoint a successor Agent as provided for above.
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In addition to the foregoing, (x) any Lender may from time to time request of Agent in writing that Agent provide to such Lender a copy of any report or document provided by any Loan Party or its Subsidiaries to Agent that has not been contemporaneously provided by such Loan Party or such Subsidiary to such Lender, and, upon receipt of such request, Agent promptly shall provide a copy of same to such Lender, (y) to the extent that Agent is entitled, under any provision of the Loan Documents, to request additional reports or information from any Loan Party or its Subsidiaries, any Lender may, from time to time, reasonably request Agent to exercise such right as specified in such Lender’s notice to Agent, whereupon Agent promptly shall request of Borrowers the additional reports or information reasonably specified by such Lender, and, upon receipt thereof from such Loan Party or such Subsidiary, Agent promptly shall provide a copy of same to such Lender, and (z) any time that Agent renders to Borrowers a statement regarding the Loan Account, Agent shall send a copy of such statement to each Lender.
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[AerSale] Amended and Restated Credit Agreement
of the Lead Arranger, Book Runner, Syndication Agent and Documentation Agent, in such capacities, shall not have or be deemed to have any fiduciary relationship with any Lender or any Loan Party. Each Lender, Agent, Swing Lender, Issuing Bank, and each Loan Party acknowledges that it has not relied, and will not rely, on the Lead Arranger, Book Runner, Syndication Agent or Documentation Agent in deciding to enter into this Agreement or in taking or not taking action hereunder. Each of the Lead Arranger, Book Runner, Syndication Agent and Documentation Agent, in such capacities, shall be entitled to resign at any time by giving notice to Agent and Borrowers.
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such Agent-Related Person or Lender-Related Person, as the case may be.
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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.
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Nothing in this Section 17.17 will constitute a waiver or release of any claim of the Agent hereunder arising from any Payment Recipient’s receipt of an Erroneous Payment.
any Sanctions Provision that does (or would) result in any such violation, conflict or liability being referred to as a “Restricted Sanctions Provision”, with the Lender to which such Restricted Sanctions Provision is applicable being referred to as a “Restricted Lender”;
[remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered as of the date first above written.
BORROWERS:AERSALE, INC.
By:
Name:
Title:
AERSALE USA 1 LLC
By:
Name:
Title:
[Signature Page]
Amended and Restated Credit Agreement
AERSALE COMPONENT SOLUTIONS, INC.
By:
Name:
Title:
[Signature Page]
Amended and Restated Credit Agreement
Signed as a deed for and on behalf of
AERSALE AVIATION LIMITED, in the presence of:
By:______________________________
Name:
Title:
____________________________________
Witness Signature
____________________________________
Witness Name
____________________________________
Address
____________________________________
Occupation
[Signature Page]
Amended and Restated Credit Agreement
Signed as a deed for and on behalf of
AERSALE 27469 AVIATION LIMITED, in the presence of:
By:______________________________
Name:
Title:
____________________________________
Witness Signature
____________________________________
Witness Name
____________________________________
Address
____________________________________
Occupation
[Signature Page]
Amended and Restated Credit Agreement
Signed as a deed for and on behalf of
AERSALE 27910 AVIATION LIMITED, in the presence of:
By:______________________________
Name:
Title:
____________________________________
Witness Signature
____________________________________
Witness Name
____________________________________
Address
____________________________________
Occupation
[Signature Page]
Amended and Restated Credit Agreement
Signed as a deed for and on behalf of
CORAL GABLES 1 LIMITED, in the presence of:
By:______________________________
Name:
Title:
____________________________________
Witness Signature
____________________________________
Witness Name
____________________________________
Address
____________________________________
Occupation
Signed as a deed for and on behalf of
CORAL GABLES 2 LIMITED, in the presence of:
By:______________________________
Name:
Title:
____________________________________
Witness Signature
____________________________________
Witness Name
____________________________________
Address
____________________________________
Occupation
[Signature Page]
Amended and Restated Credit Agreement
Signed and delivered as a deed for and on behalf of AERSALE IRELAND 1 LIMITED
By:______________________________
Name:
Title:Attorney-in-fact
in the presence of:
Witness Signature
Witness Name
Address
Occupation
AVBORNE ACCESSORY GROUP, INC.
By:
Name:
Title:
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By:
Name:
Title:
QWEST AIR PARTS, LLC
By:
Name:
Title:
Q2 AVIATION LLC,
By:
Name:
Title:
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AIRCRAFT COMPOSITE TECHNOLOGIES, INC.
By:
Name:
Title:
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PARENT COMPANIES:
AERSALE AVIATION INC.
By:______________________________
Name:
Title:
AerSale CORPORATION
By:______________________________
Name:
Title:
monocle parent llc
By:______________________________
Name:
Title:
[Signature Page]
Amended and Restated Credit Agreement
WELLS FARGO BANK, NATIONAL ASSOCIATION,
a national banking association,
as Agent, Lead Arranger, Book Runner and as a Lender
By:
Name:Nicholas Ply
Title:Authorized Signatory
[Signature Page]
Amended and Restated Credit Agreement
WELLS FARGO CAPITAL FINANCE (UK) LIMITED,
as a Lender
By:
Name:
Title:
[Signature Page]
Amended and Restated Credit Agreement
CIBC BANK USA,
as Syndication Agent and a Lender
By:
Name:
Title:
[Signature Page]
Amended and Restated Credit Agreement
SYNOVUS BANK,
as Documentation Agent and a Lender
By:
Name:
Title:
[Signature Page]
Amended and Restated Credit Agreement
FIRST HORIZON BANK,
as a Lender
By:
Name:
Title:
[Signature Page]
Amended and Restated Credit Agreement
HSBC BANK USA, NATIONAL ASSOCIATION,
as a Lender
By:
Name:
Title:
[Signature Page]
Amended and Restated Credit Agreement
PNC BANK, NATIONAL ASSOCIATION,
as a Lender
By:
Name:
Title:
[Signature Page]
Amended and Restated Credit Agreement
Schedule B-1
Borrowing Base Certificate
Schedule C-1
COMMITMENTS
Lender | Revolving Commitment |
Wells Fargo Bank, National Association | $50,000,000 |
CIBC Bank USA | $37,000,000 |
First Horizon Bank | $28,000,000 |
Synovus Bank | $30,000,000 |
PNC Bank, National Association | $25,000,000 |
HSBC Bank USA, National Association | $10,000,000 |
Total Commitments: | $180,000,000 |