Exhibit 10.2
FIRST AMENDMENT TO LOAN AGREEMENT
This FIRST AMENDMENT TO LOAN AGREEMENT (this “Amendment”) is entered into as of September 28, 2023 by and among ASPEN AEROGELS, INC., a Delaware corporation (the “Parent”), ASPEN AEROGELS GEORGIA, LLC, a Georgia limited liability company (“Borrower”), ASPEN AEROGELS RHODE ISLAND, LLC, a Rhode Island limited liability company (“Aspen RI”) and GENERAL MOTORS HOLDINGS LLC (the “Lender”).
W I T N E S S E T H:
WHEREAS, the Parent, Borrower, Aspen RI and the Lender are parties to that certain Loan Agreement, dated as of November 28, 2022 (as the same has been and may be further amended, restated, amended and restated, supplemented or otherwise modified from time to time prior to the effectiveness of this Amendment, the “Loan Agreement”); and
WHEREAS, the Parent and Borrower have requested, and the Lender has agreed to, amend certain provisions of the Loan Agreement on the terms set forth herein and subject to the satisfaction of the conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained herein, the parties hereby agree as follows:
(a) THE VALIDITY OF THIS AMENDMENT, THE CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT HEREOF, THE RIGHTS OF THE PARTIES HERETO WITH RESPECT TO ALL MATTERS ARISING HEREUNDER OR RELATED HERETO, AND ANY CLAIMS, CONTROVERSIES OR DISPUTES ARISING HEREUNDER OR RELATED HERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MICHIGAN.
(b) THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS AMENDMENT SHALL BE TRIED AND LITIGATED ONLY IN THE STATE OF MICHIGAN AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE STATE COURTS LOCATED IN WAYNE COUNTY, MICHIGAN OR THE FEDERAL COURTS LOCATED IN THE EASTERN DISTRICT OF MICHIGAN. EACH LOAN PARTY AND THE LENDER WAIVES, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 9(b).
(c) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH LOAN PARTY AND THE LENDER HEREBY WAIVES ITS RIGHTS, IF ANY, TO A JURY TRIAL OF ANY CLAIM, CONTROVERSY, DISPUTE OR CAUSE OF ACTION DIRECTLY OR INDIRECTLY BASED UPON OR ARISING OUT OF ANY OF THIS AMENDMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS (EACH A “CLAIM”). EACH LOAN PARTY AND THE LENDER REPRESENTS THAT EACH HAS REVIEWED THIS WAIVER AND EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF THIS AMENDMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
(d) EACH OF THE LENDER AND THE LOAN PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN THE COUNTY OF MICHIGAN AND THE STATE OF MICHIGAN, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AMENDMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AMENDMENT SHALL AFFECT ANY RIGHT THAT THE LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AMENDMENT AGAINST ANY LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
[Remainder of Page Intentionally Left Blank; Signature Pages Follow]
IN WITNESS WHEREOF, each of the undersigned has executed this Amendment as of the date set forth above.
BORROWER: | ||
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ASPEN AEROGELS GEORGIA, LLC | ||
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By: | /s/ Ricardo C. Rodriguez | |
| Name: | Ricardo C. Rodriguez |
| Title: | Chief Financial Officer and Treasurer |
GUARANTORS : | ||
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ASPEN AEROGELS, INC. | ||
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By: | /s/ Ricardo C. Rodriguez | |
| Name: | Ricardo C. Rodriguez |
| Title: | Chief Financial Officer and Treasurer |
ASPEN AEROGELS RHODE ISLAND, LLC | ||
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By: | /s/ Ricardo C. Rodriguez | |
| Name: | Ricardo C. Rodriguez |
| Title: | Chief Financial Officer and Treasurer |
[Signature Page to First Amendment to Loan Agreement]
LENDER:
GENERAL MOTORS HOLDINGS LLC,
| By: | /s/ Gustavo Vello | |
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| Name: | Gustavo Vello |
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| Title: | Assistant Treasurer, GM |
[Signature Page to First Amendment to Loan Agreement]
Exhibit H
Form of Compliance Certificate
(see attached)
Schedule I – Financial Covenant Calculations1
Schedule I(a): Total Leverage Ratio § 6.13(a)
Test Date | Ratio |
As of each Test Date, commencing with the Fiscal Quarter ending December 31, 2024
| Less than or equal to 5.00 to 1.00 |
1. | Total Indebtedness (see Section D hereof) of Parent and its Subsidiaries | $________________
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2. | MINUS Indebtedness outstanding under a Revolving Loan Agreement that benefits the Borrower in a principal amount not to exceed $50,000,000 and undrawn letters of credit permitted under clause (n) of the definition of Permitted Indebtedness | $ (______________) |
3. | Subtotal (1-2) = |
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4. | Consolidated EBITDA of Parent and its Subsidiaries for the most recently completed Measurement Period | $________________
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5 | Ratio (3 ÷ 4) = | ________________
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1. Consolidated Net Income of Parent and its Subsidiaries for the most recently completed Measurement Period | $________________
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PLUS (to the extent included in calculating Consolidated Net Income for the most recently completed Measurement Period, without duplication) |
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2. the sum of all interest, premium payments, debt discount, fees, charges and related expenses in connection with Indebtedness for borrowed money to the extent treated as interest in accordance with GAAP | $________________
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1 To be delivered also following the delivery of the audited F/S if such statements would result in a different calculation than as set forth in the certificate delivered concurrently with the unaudited financial statements for the applicable period.
3. provision for federal, state, local and foreign income Taxes, taxes on profit or capital, including, without limitation, state franchise and similar Taxes, and foreign withholding taxes | $________________
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4. depreciation and amortization expenses | $________________
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5. noncash (A) charges, expenses, costs or losses solely to the extent constituting extraordinary, unusual or non-recurring items, (B) compensation charges, (C) charges for the excess of GAAP rent expense over actual rent paid during such period due to the use of straight line rent for GAAP purposes or write-off and/or write-downs of inventory or other tangible assets and (D) asset write-offs and/or write-downs or any impairment charges | $________________
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6. charges or expenses incurred in connection with the issuance or incurrence of permitted Indebtedness or the issuance of Equity Interests (that do not result in a Change of Control) in an aggregate amount during the term of this Agreement not to exceed $500,000 |
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7. any other adjustments as shall be mutually agreed | $________________
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8. Subtotal (1+2+3+4+5+6+7) = | $________________ |
MINUS (to the extent included in calculating such Consolidated Net Income for the most recently completed Measurement Period, without duplication) |
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9. federal, state, local and foreign income Tax credits, Tax credits on profit or capital, including, without limitation, state franchise and similar Tax credits, and foreign withholding Tax credits | $________________ |
10. any noncash gain from extraordinary, unusual or non-recurring items | $________________ |
11. Subtotal (9+10) = | $________________ |
Total (8-11) = | $________________
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(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 | |
1. All obligations of such Person for borrowed money | $________________ |
2. 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 | $________________ |
3. 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 | $________________ |
4. 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 repayable in accordance with customary trade practices and which are paid in accordance with such terms and not on a deferred basis) | $________________ |
5. all obligations of such Person in respect of Disqualified Equity Interests | $________________ |
6. 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 (1) through (5) above | $________________ |
Total (1+2+3+4+5+6) = | $________________ |
Schedule I(b): Ratio of Total Indebtedness to Consolidated Equity § 6.13(b)
Test Date | Ratio |
As of each Test Date, commencing with the Fiscal Quarter ending December 31, 2024
| Less than or equal to 1.20x |
1. | Total Indebtedness (see Section C hereof) of Parent and its Subsidiaries | $________________
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2. | MINUS undrawn letters of credit permitted under clause (n) of the definition of Permitted Indebtedness | $ (______________) |
3. | Subtotal (1-2) = |
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4. | consolidated equity of Parent and its Subsidiaries | $________________
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5. | Ratio (3 ÷ 4) = | ________________ |
(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 | |
1. All obligations of such Person for borrowed money | $________________ |
2. 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 | $________________ |
3. 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 | $________________ |
4. 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 repayable in accordance with customary trade practices and which are paid in accordance with such terms and not on a deferred basis) | $________________ |
5. all obligations of such Person in respect of Disqualified Equity Interests | $________________ |
6. 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 (1) through (5) above | $________________ |
7. Subtotal (1+2+3+4+5+6) = | $________________ |
MINUS |
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8. Indebtedness under a Revolving Loan Agreement that benefits the Borrower in a principal amount not to exceed $50,000,000 | $________________ |
Total (7-8) = | $________________ |
Annex I
(See Attached)
LOAN AGREEMENT
by and between
GENERAL MOTORS HOLDINGS LLC,
(“Lender”)
ASPEN AEROGELS GEORGIA, LLC
(“Borrower”)
and
THE GUARANTORS FROM TIME TO TIME PARTY HERETO
Dated as of November 28, 2022
TABLE OF CONTENTS
Page
1. | DEFINITIONS AND CONSTRUCTION. | 1 | |
1.1. | Definitions | 1 | |
1.2. | Code | 1 | |
1.3. | Schedules and Exhibits | 1 | |
1.4. | Definition of “Knowledge” | 1 | |
2. | TERM LOAN, TERMS OF PAYMENT, SECURITY INTEREST, GUARANTY, MATURITY, ASSUMPTION. | 1 | |
2.1. | Term Loan | 1 | |
2.2. | Interest; Interest Rate. | 2 | |
2.3. | Payments; Prepayments. | 3 | |
2.4. | Grant of Security; Guaranty | 4 | |
2.5. | Effect of Maturity | 5 | |
3. | CONDITIONS TO ADVANCES. | 5 | |
3.1. | Conditions Precedent to the Closing Date | 5 | |
3.2. | Conditions Precedent to the Funding of each Term Loan | 5 | |
4. | REPRESENTATIONS AND WARRANTIES. | 6 | |
4.1. | Due Organization; Authorization; Power and Authority. | 6 | |
4.2. | Subsidiaries; Investments. | 6 | |
4.3. | Indebtedness; Liabilities | 7 | |
4.4. | Collateral. | 7 | |
4.5. | Binding Obligations; Perfected Liens. | 7 | |
4.6. | Litigation | 7 | |
4.7. | Financial Condition | 8 | |
4.8. | Solvency | 8 | |
4.9. | Regulatory Compliance | 8 | |
4.10. | Patriot Act | 8 | |
4.11. | OFAC | 8 | |
4.12. | Anti-Bribery and Anti-Corruption Laws. | 8 | |
4.13. | Tax Returns and Payments; Pension Contributions. | 9 | |
4.14. | [Reserved]. | 9 | |
4.15. | SEC Reports | 9 | |
4.16. | Transactions with Affiliates. | 10 | |
4.17. | Environmental Condition | 10 | |
4.18. | Material Contracts and Project Documents | 10 | |
4.19. | Permits, Etc | 11 | |
4.20. | Insurance | 11 | |
4.21. | Condemnation | 12 | |
4.22. | Contractors | 12 | |
4.23. | Utilities and Access | 12 | |
4.24. | Zoning | 12 | |
4.25. | Absence of Material Adverse Effect | 12 |
4.26. | Full Disclosure | 13 | |
4.27. | Intellectual Property | 13 | |
5. | AFFIRMATIVE COVENANTS. | 14 | |
5.1. | Compliance. | 14 | |
5.2. | Financial Statements, Reports, Certificates | 14 | |
5.3. | Taxes; Pensions | 1617 | |
5.4. | Access to Collateral; Inspections; Books and Records | 17 | |
5.5. | Insurance. | 18 | |
5.6. | Disbursement Account | 2021 | |
5.7. | Protection of Intellectual Property Rights | 2021 | |
5.8. | Litigation Cooperation | 21 | |
5.9. | Formation or Acquisition of Subsidiaries | 22 | |
5.10. | [Reserved]Quarterly Consultation | 22 | |
5.11. | Environmental | 22 | |
5.12. | Incorporation of Terms | 2223 | |
5.13. | Use of Proceeds | 23 | |
5.14. | Delivery of Material Contracts and Project Contracts | 2324 | |
5.15. | Further Assurances | 2324 | |
5.16. | Construction Related Covenants | 2324 | |
5.17. | Collateral | 26 | |
5.18. | Full Disclosure | 2627 | |
5.19. | Post-Closing Deliveries | 2627 | |
5.20. | Separate Tax Parcel | 27 | |
5.21. | Compliance with Laws. | 27 | |
6. | NEGATIVE COVENANTS. | 27 | |
6.1. | Indebtedness | 27 | |
6.2. | Liens | 28 | |
6.3. | Dispositions | 2728 | |
6.4. | Mergers or Acquisitions | 28 | |
6.5. | Restricted Payments; Investments | 28 | |
6.6. | Restricted Debt Payments. | 28 | |
6.7. | Transactions with Affiliates | 29 | |
6.8. | Amendments to Material Contracts and Other Debt Documents | 2829 | |
6.9. | Limitations on Negative Pledges and other Agreements | 29 | |
6.10. | Control Agreement | 29 | |
6.11. | Compliance | 29 | |
6.12. | OFAC; Patriot Act; Anti-Corruption Laws | 30 | |
6.13. | Financial Covenants | 30 | |
7. | EVENTS OF DEFAULT. | 2930 | |
7.1. | Payment Default | 2930 | |
7.2. | Covenant Default | 2930 | |
7.3. | Attachment; Levy; Restraint on Business | 31 | |
7.4. | Insolvency | 3031 | |
7.5. | Other Indebtedness and Agreements | 3031 |
7.6. | Milestones | 31 | |
7.7. | Judgments | 32 | |
7.8. | Misrepresentations | 3132 | |
7.9. | Governmental Approvals; Noncompliance; Lapse of Permits | 3132 | |
7.10. | Loan Documents | 3132 | |
7.11. | Change of Control | 3233 | |
7.12. | Proceedings | 3233 | |
7.13. | Bond Defaults | 3233 | |
8. | RIGHTS AND REMEDIES. | 3233 | |
8.1. | Rights and Remedies | 3233 | |
8.2. | Remedies Cumulative | 33 | |
8.3. | Equity Cure Rights | 34 | |
9. | WAIVERS; INDEMNIFICATION. | 3334 | |
9.1. | Demand; Protest; etc | 3334 | |
9.2. | Lender’s Liability for Collateral | 3335 | |
9.3. | Indemnification | 3335 | |
10. | NOTICES. | 3435 | |
11. | CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER; JUDICIAL REFERENCE PROVISION. | 3537 | |
12. | ASSIGNMENTS; SUCCESSORS. | 3739 | |
12.1. | Assignments | 3739 | |
12.2. | Successors | 3739 | |
13. | AMENDMENTS; WAIVERS. | 3739 | |
13.1. | Amendments and Waivers | 3739 | |
13.2. | No Waivers; Cumulative Remedies | 3739 | |
14. | GENERAL PROVISIONS. | 3839 | |
14.1. | Section Headings | 3839 | |
14.2. | Interpretation | 3840 | |
14.3. | Severability of Provisions | 3840 | |
14.4. | Debtor-Creditor Relationship | 3840 | |
14.5. | Counterparts; Electronic Execution | 3941 | |
14.6. | Revival and Reinstatement of Obligations; Certain Waivers | 3941 | |
14.7. | Confidentiality | 3941 | |
14.8. | Survival | 4042 | |
14.9. | Integration | 4143 | |
14.10. | No Setoff | 4143 |
EXHIBIT AND SCHEDULES
Exhibit A | Form of Security Agreement |
Exhibit B | Form of Guaranty Agreement |
Exhibit C | Form of Collateral Assignment Agreement |
Exhibit D | Form of Promissory Note |
Exhibit E | Form of Revolver Intercreditor Agreement |
Exhibit F | Form of Borrowing Request |
Exhibit G | Form of Title Company “Date Down” Endorsement for Georgia Property |
Exhibit H | Form of Compliance Certificate |
Schedule 1.1 | Definitions |
Schedule 1.1(c) | Contracts to be Collaterally Assigned |
Schedule 1.1(d) | Excluded Accounts |
Schedule 1.1(p) | Project Budget |
Schedule 1.1(t) | Term Loan Budget |
Schedule 3.1 | Conditions Precedent to the Closing Date |
Schedule 3.2 | Conditions Precedent to the Funding of each Term Loan |
Schedule 4.2(b) | Affiliates of Loan Parties |
Schedule 4.3 | Existing Liabilities |
Schedule 4.16(a) | Affiliate Transactions |
Schedule 4.16(b) | Assets and Services |
Schedule 4.17 | Environmental Conditions |
Schedule 4.18 | Material Contracts and Project Documents |
Schedule 4.19 | Permits |
Schedule 4.22 | Contractors |
Schedule 5.16(b) | Subcontractors |
Schedule 7.6 | Milestones |
LOAN AGREEMENT
THIS LOAN AGREEMENT (this “Agreement”), is entered into as of November 28, 2022 by and between GENERAL MOTORS HOLDINGS LLC (“General Motors” together with its successors and assigns, the “Lender”, as that term is hereinafter further defined), ASPEN AEROGELS GEORGIA, LLC, a Georgia limited liability company (“Borrower”), ASPEN AEROGELS, INC., a Delaware corporation (the “Parent”), ASPEN AEROGELS RHODE ISLAND, LLC, a Rhode Island limited liability company (“Aspen RI”) and the other Guarantors from time to time party hereto.
Borrower will be constructing and equipping an aerogel manufacturing plant in Bulloch County, Georgia (the “Project”) to produce barrier blankets for use in insulation components that are used in battery modules for electric vehicles. Borrower has requested, and the Lender has agreed to provide, a multi-draw senior secured loan on the terms and conditions set forth in this Agreement, the proceeds of which will be used, together with capital contributions to Borrower from Parent and the proceeds of other financing, for the construction of and equipment for the first phase of the Project.
The parties agree as follows:
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All payments remitted to the Lender and all proceeds of Collateral received by the Lender shall be applied as follows:
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In order to induce the Lender to enter into this Agreement, each of Borrower, Aspen RI and/or Parent, as applicable, makes the following representations and warranties to the Lender which shall be accurate as of the date of this Agreement and the date of the advance of each Term Loan:
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Each of Borrower, Parent and/or Aspen RI, as applicable, covenants and agrees that, until the Obligations are Paid in Full it shall do the following:
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provided, that, for purposes of this Section 5.2, none of Parent or its Subsidiaries shall be required to disclose or provide any information (i) that constitutes non-financial trade secrets or non-financial proprietary information of any Person, (ii) in respect of which disclosure to the Lender (or any of its Party Representatives) is prohibited by applicable law, (iii) that is subject to attorney-client or similar privilege or constitutes attorney work product or (iv) in respect of which Parent or any of its Subsidiaries owes confidentiality obligations to any third party (provided, further that such confidentiality obligations were not entered into in contemplation of the requirements of this Section 5.2); provided, further, that notwithstanding the foregoing, the obligations in Section 5.2(a)
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and (b) may be satisfied with respect to information filed by Parent with any securities exchange or with the SEC or any analogous governmental or private regulatory authority with jurisdiction over matters relating to securities (including Form 10-Q Reports and Form 10-K reports) and shall be deemed to have been delivered on the date on which such items have been made available on the SEC website or the website of the relevant analogous governmental or private regulatory authority or securities exchange (including, for the avoidance of doubt, by way of “EDGAR”).
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. Commencing with the Fiscal Quarter ending December 31, 2023, and during each Fiscal Quarter thereafter (on such Business Day and at such time as agreed by the Loan Parties and the Lender), representatives of the Loan Parties and the Lender shall meet on a quarterly basis, on such Business Day as mutually agreed (not to be unreasonably withheld, conditioned or delayed) by Borrower and the Lender, to review Lender’s (or its Affiliate’s) production needs at the Georgia Facility. For the avoidance of doubt, (x) if no meeting occurs during any Fiscal Quarter for any reason (unless Lender in its sole discretion agrees to waive the meeting requirement in such Fiscal Quarter in writing (including via email)), the Loan Parties shall be considered in breach of this Section 5.10 and (y) any such meeting may be conducted virtually or via teleconference call as mutually agreed (not to be unreasonably withheld, conditioned or delayed) by Borrower and the Lender.
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Each of Borrower, Parent and Aspen RI, covenants and agrees that until the Obligations are Paid in Full, it will not:
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To the extent that any Collateral is Transferred as permitted by clause (a) or (b) of this Section 6.3, such Collateral shall be Transferred free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Transfer, and the Lender shall any action reasonably requested by Loan Parties in order to effect the foregoing; provided, that in the case of a Transfer made to any Loan Party, the relevant transferred assets shall become part of the Collateral of the transferee Loan Party (except to the extent such assets are Excluded Assets).
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The Loan Parties will demonstrate compliance with this Section 6.13 by delivering a Compliance Certificate in accordance with and subject to Section 5.2(j)(y).
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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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
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and other informational documents which may be furnished electronically as contemplated in Section 5.2) 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 facsimile. In the case of notices or demands to Borrower or other Loan Parties or the Lender, as the case may be, they shall be sent to the respective address set forth below:
If to any Loan Party: | ASPEN AEROGELS, INC. 26 Forest Street, Suite 200 Marlborough, MA 01752 |
| Attn: | Ricardo C. Rodriguez and Virginia H. Johnson |
| Email: | rrodriguez@aerogel.com, gjohnson@aerogel.com, and legal@aerogel.com |
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with a copy to: | WEIL, GOTSHAL & MANGES LLP |
| Attn: | Andrew Colao, Esq. and Jacqueline Oveissi, Esq. |
| Email: | andrew.colao@weil.com jacqueline.oveissi@weil.com |
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If to the Lender: | GENERAL MOTORS HOLDINGS LLC Detroit Treasury Office Email: treasurysfrm@gm.com |
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with copies to: | GENERAL MOTORS HOLDINGS LLC Global Purchasing and Supply Chain Cole Engineering Center 29755 Louis Chevrolet Road Warren, MI 48090-9020 Attn: Aaron M. Silver Email: aaron.silver@gm.com
and to:
HONIGMAN LLP Suite 100 |
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 10, shall be deemed received on the earlier of the date of actual receipt or three (3) 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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[SIGNATURE PAGES FOLLOW.]
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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.
BORROWER: | ASPEN AEROGELS GEORGIA, LLC | |
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GUARANTORS: | ASPEN AEROGELS, INC. | |
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| ASPEN AEROGELS RHODE ISLAND, LLC | |
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Signature Page to Loan Agreement
LENDER: | GENERAL MOTORS HOLDINGS LLC, as the | |
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Signature Page to Loan Agreement
Exhibit A
Form of Security Agreement
(See attached)
Exhibit B
Form of Guaranty Agreement
(See attached)
Exhibit C
Form of Collateral Assignment Agreement
(See attached)
Exhibit D
Form of Promissory Note
(See attached)
Exhibit E
Form of Revolver Intercreditor Agreement
(See attached)
Exhibit F
Form of Borrowing Request
(See attached)
Exhibit G
Form of Title Company “Date Down” Endorsement for Georgia Property
(See attached)
Exhibit H
Form of Compliance Certificate
(See attached)
EXHIBIT H – FORM OF COMPLIANCE CERTIFICATE
Attached to and made a part of that certain Loan Agreement, as it may be amended, restated, amended and restated, supplemented or otherwise modified in accordance with its terms from time to time, including all schedules and exhibits attached thereto (the “Agreement”), dated as of November 28, 2022, by and between General Motors Holdings LLC, a Delaware limited liability company (“General Motors” together with its successors and assigns, “Lender”), Aspen Aerogels Georgia, LLC, a Georgia limited liability company (the “Borrower”), Aspen Aerogels, Inc., a Delaware corporation (the “Parent”), Aspen Aerogels Rhode Island, LLC, a Rhode Island limited liability company (“Aspen RI”) and the other Guarantors (as that term is defined in the Agreement) from time to time party thereto. Capitalized terms used herein but not specifically defined herein shall have the meanings ascribed to them in the Agreement.
This Certificate is submitted pursuant to Section 5.2(j) of the Agreement.
The undersigned, in the undersigned’s capacity as Financial Officer of the Parent (and not in any individual capacity and without assuming any personal liability), hereby certifies to Lender that as of the date of this Certificate:
1. The undersigned is a Financial Officer of the Parent.
2. The financial statements of Parent and its Subsidiaries being concurrently delivered herewith have been prepared in accordance GAAP consistently applied and there have been no material changes in accounting policies or financial reporting practices of each Loan Party since [date of the last Compliance Certificate/date of last financial statements delivered prior to closing] or, if any such change has occurred, such changes are set forth in a writing attached hereto.
3 Attached hereto as Schedule I(a) is a true and correct calculation of the Total Leverage Ratio covenant contained in Section 6.13(a) of the Agreement as of the Test Date ended [insert applicable Fiscal Quarter end].
4. Attached hereto as Schedule I(b) is a true and correct calculation of the ratio of total Indebtedness of Parent and its Subsidiaries (excluding Indebtedness incurred under a Revolving Loan Agreement that benefits the Borrower in a principal amount not to exceed $50,000,000 and undrawn letters of credit permitted under clause (n) of the definition of Permitted Indebtedness) to the consolidated equity of Parent and its Subsidiaries contained in Section 6.13(b) of the Agreement.
[Signature Page follows]
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| Title: | [Chief Financial Officer] |
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[Signature Page to Compliance Certificate]
Schedule I – Financial Covenant Calculations1
Schedule I(a): Total Leverage Ratio § 6.13(a)
Test Date | Ratio |
As of each Test Date, commencing with the Fiscal Quarter ending December 31, 2024
| Less than or equal to 5.00 to 1.00 |
1. | Total Indebtedness (see Section D hereof) of Parent and its Subsidiaries | $________________
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2. | MINUS Indebtedness outstanding under a Revolving Loan Agreement that benefits the Borrower in a principal amount not to exceed $50,000,000 and undrawn letters of credit permitted under clause (n) of the definition of Permitted Indebtedness | $ (______________) |
3. | Subtotal (1-2) = |
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| Divided by: |
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4. | Consolidated EBITDA of Parent and its Subsidiaries for the most recently completed Measurement Period | $________________
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5 | Ratio (3 ÷ 4) = | ________________
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1. Consolidated Net Income of Parent and its Subsidiaries for the most recently completed Measurement Period | $________________
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PLUS (to the extent included in calculating Consolidated Net Income for the most recently completed Measurement Period, without duplication) |
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2. the sum of all interest, premium payments, debt discount, fees, charges and related expenses in connection with Indebtedness for borrowed money to the extent treated as interest in accordance with GAAP | $________________
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1 To be delivered also following the delivery of the audited F/S if such statements would result in a different calculation than as set forth in the certificate delivered concurrently with the unaudited financial statements for the applicable period.
3. provision for federal, state, local and foreign income Taxes, taxes on profit or capital, including, without limitation, state franchise and similar Taxes, and foreign withholding taxes | $________________
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4. depreciation and amortization expenses | $________________
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5. noncash (A) charges, expenses, costs or losses solely to the extent constituting extraordinary, unusual or non-recurring items, (B) compensation charges, (C) charges for the excess of GAAP rent expense over actual rent paid during such period due to the use of straight line rent for GAAP purposes or write-off and/or write-downs of inventory or other tangible assets and (D) asset write-offs and/or write-downs or any impairment charges | $________________
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6. charges or expenses incurred in connection with the issuance or incurrence of permitted Indebtedness or the issuance of Equity Interests (that do not result in a Change of Control) in an aggregate amount during the term of this Agreement not to exceed $500,000 |
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7. any other adjustments as shall be mutually agreed | $________________
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8. Subtotal (1+2+3+4+5+6+7) = | $________________ |
MINUS (to the extent included in calculating such Consolidated Net Income for the most recently completed Measurement Period, without duplication) |
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9. federal, state, local and foreign income Tax credits, Tax credits on profit or capital, including, without limitation, state franchise and similar Tax credits, and foreign withholding Tax credits | $________________ |
10. any noncash gain from extraordinary, unusual or non-recurring items | $________________ |
11. Subtotal (9+10) = | $________________ |
Total (8-11) = | $________________ |
(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 | |
1. All obligations of such Person for borrowed money | $________________ |
2. 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 | $________________ |
3. 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 | $________________ |
4. 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 repayable in accordance with customary trade practices and which are paid in accordance with such terms and not on a deferred basis) | $________________ |
5. all obligations of such Person in respect of Disqualified Equity Interests | $________________ |
6. 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 (1) through (5) above | $________________ |
Total (1+2+3+4+5+6) = | $________________ |
Schedule I(b): Ratio of Total Indebtedness to Consolidated Equity § 6.13(b)
Test Date | Ratio |
As of each Test Date, commencing with the Fiscal Quarter ending December 31, 2024
| Less than or equal to 1.20x |
1. | Total Indebtedness (see Section C hereof) of Parent and its Subsidiaries | $________________
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2. | MINUS undrawn letters of credit permitted under clause (n) of the definition of Permitted Indebtedness | $ (______________) |
3. | Subtotal (1-2) = |
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| Divided by: |
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4. | consolidated equity of Parent and its Subsidiaries | $________________
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5. | Ratio (3 ÷ 4) = | ________________ |
(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 | |
1. All obligations of such Person for borrowed money | $________________ |
2. 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 | $________________ |
3. 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 | $________________ |
4. 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 repayable in accordance with customary trade practices and which are paid in accordance with such terms and not on a deferred basis) | $________________ |
5. all obligations of such Person in respect of Disqualified Equity Interests | $________________ |
6. 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 (1) through (5) above | $________________ |
7. Subtotal (1+2+3+4+5+6) = | $________________ |
MINUS |
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8. Indebtedness under a Revolving Loan Agreement that benefits the Borrower in a principal amount not to exceed $50,000,000 | $________________ |
Total (7-8) = | $________________ |
Schedule 1.1
Definitions
As used in this Agreement, the following terms shall have the following definitions:
“Account” is any “account” as defined in the Code with such additions to such term as may hereafter be made, and includes, without limitation, all accounts receivable and other sums owing to any Loan Party.
“Account Services” means commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services, and any arrangement and/or service similar to any of the foregoing and/or otherwise in connection with Cash management and any Accounts.
“Additional Financing Facility” means one or more equity or debt financing arrangements with one or more third parties to provide Borrower with cash proceeds, in the aggregate, of not less than (excluding the Equity Investment) $3500,000,000 (inclusive of cash proceeds contributed to the Borrower for use in connection with the construction of the Georgia Facility prior to the First Amendment Effective Date).
“Additional Letters of Credit” has the meaning specified therefor in clause (n) of the definition of “Permitted Indebtedness”.
“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 with regard to (a) Borrower: (i) any Person which Controls or is Controlled by Borrower shall be deemed an Affiliate of Borrower and (ii) each partnership in which Borrower is a general partner shall be deemed an Affiliate of Borrower and (b) the Guarantor: (i) any Person which Controls or is Controlled by the Guarantor shall be deemed an Affiliate of the Guarantor and (ii) each partnership in which the Guarantor is a general partner shall be deemed an Affiliate of the Guarantor.
“Agreement” means the Loan Agreement to which this Schedule 1.1 is attached, as amended, supplemented or otherwise modified from time to time.
“Anti-Corruption Laws” has the meaning specified therefor in Section 4.12(a) of this Agreement.
“Architect” means Thompson Consultants Inc. who has been retained by Borrower to design and inspect the construction of the Improvements.
“Architect’s Contract” shall means the written agreement between Borrower and the Architect, dated February 16, 2022 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time in a manner not otherwise prohibited by this Agreement), for architectural services relating to the design and construction of the Improvements.
“Bankruptcy Code” means title 11 of the United States Code, as in effect from time to time.
“Board of Directors” means, as to any Person, the board of directors (or comparable managers), sole member or equivalent governing body, as applicable, of such Person, or any committee thereof duly authorized to act on behalf of the board of directors (or comparable managers), sole member or equivalent governing body, as applicable.
“Books” all books and records including ledgers, federal and state tax returns, records regarding assets or liabilities, the Collateral, business operations or financial condition, and all computer programs or storage or any equipment containing such information.
“Borrower” has the meaning specified therefor in the preamble to this Agreement.
“Borrowing Request” has the meaning specified therefor in Section 2.1(b)(i) of this Agreement.
“Budget” means, collectively, (a) the Project Budget and (b) any Term Loan Budget.
“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 Michigan.
“Capital Lease” means, as applied to any Person, any lease of any property (whether real, personal or mixed) by that Person as lessee that, in conformity with GAAP as in effect prior to giving effect to the adoption of ASU No. 2016-02 “Leases (Topic 842)” and ASU No. 2018-11 “Leases (Topic 842)”, is or should be accounted for as a capital lease on the balance sheet of that Person; provided, that for the avoidance of doubt, the amount of obligations attributable to any Capital Lease shall be the amount thereof accounted for as a liability in accordance with GAAP.
“Cash Equivalents” means (a) marketable direct obligations issued or unconditionally guaranteed by the United States or any agency or any State thereof having maturities of not more than one (1) year from the date of acquisition; (b) commercial paper maturing no more than one (1) year after its creation and having the highest rating from either Standard & Poor’s Ratings Group or Moody’s Investors Service, Inc.; (c) certificates of deposit issued maturing no more than one (1) year after issue; and (d) money market funds at least ninety-five percent (95%) of the assets of which constitute Cash Equivalents of the kinds described in clauses (a) through (c) of this definition.
“Certificate of Occupancy” has the meaning specified therefor in Section 2.2(a) of this Agreement.
“Change of Control” means that
“Claim” has the meaning specified therefor in Section 11(c) of this Agreement.
“Closing Date” means the date on which the conditions set forth in Section 3.1 are satisfied.
“Code” means the Michigan Uniform Commercial Code, as in effect from time to time.
“Collateral” means all property pledged as collateral security for the Obligations under the Security Agreement, the Mortgage, the Leasehold Deed to Secure Debt or any other Security Document, and all other property of the Loan Parties on which the Lender has been granted a Lien by any Loan Party; provided, that, for the avoidance of doubt, (a) any Intellectual Property and Intellectual Property Rights owned or purported to be owned by any Loan Party, (b) any pumps pledged to secure Borrower’s EDGE grant from the Georgia Department of Community Affairs, in each case, does not and shall not constitute Collateral and (c) funds in any Excluded Accounts; provided, that (i) the aggregate balance in such Accounts does not exceed 105% of the amounts permitted pursuant to clause (n) of the definition of “Permitted Indebtedness” at any time and (ii) the sole use of the funds in such accounts is to secure the Parent’s obligations under the Existing Letters of Credit and the Additional Letters of Credit (the foregoing clauses (a), (b) and (c), “Excluded Assets”).
“Collateral Account” is any Deposit Account, Securities Account (as that term is defined in the Code) or Commodity Account (as that term is defined in the Code), in each case, other than any Excluded Accounts.
“Collateral Access Agreement” means an agreement, in form and substance reasonably acceptable to the Lender, between the Lender, the applicable Loan Party and any Person (other than a Loan Party) in possession of any Collateral.
“Collateral Assignment Agreement” means an agreement substantially in the form of Exhibit C hereto, with respect to the contracts listed on Schedule 1.1(c).
“Company Competitor” means any Person that (a) is an entity that designs, develops or manufactures aerogels-based or aerogel-like materials based products or technology, (b) designs, develops or manufactures insulation, fire barrier or other materials for use primarily in energy infrastructure, battery systems and/or sustainable building materials, (c) designs, develops or manufactures battery materials or (d) is an auto part and system supplier or, in each case, any Affiliate of such Person (including the Persons identified via a separate written notice delivered by Borrower to the Lender on the Closing Date).
“Compliance Certificate” has the meaning specified therefor in Section 5.2(j) of this Agreement.
“Consolidated EBITDA” means, at any date of determination, an amount equal to Consolidated Net Income of Parent and its Subsidiaries for the most recently completed Measurement Period, plus
minus
(b) the following to the extent included in calculating such Consolidated Net Income for the most recently completed Measurement Period, without duplication:
(i) federal, state, local and foreign income Tax credits, Tax credits on profit or capital, including, without limitation, state franchise and similar Tax credits, and foreign withholding Tax credits; and
(ii) any noncash gain from extraordinary, unusual or non‑recurring items.
“Confidential Information” has the meaning specified therefor in Section 14.7 of this Agreement.
“Consolidated Interest Expense” means, without duplication, for any Measurement Period, the result of the sum of all interest, premium payments, debt discount, fees, charges and related expenses in connection with Indebtedness for borrowed money to the extent treated as interest in accordance with GAAP.
“Consolidated Net Income” means, as of any date of determination, with respect to any Person and its Subsidiaries, for any Measurement Period, the net income (or loss) of such Parent and its Subsidiaries for such Measurement Period, determined on a consolidated basis in accordance with GAAP.
“Construction Contracts” mean (a) the General Contractor’s Contract, (b) all other construction or development contracts executed by Borrower, as opposed to contracts executed by the General Contractor, for the construction of the Improvements, and (c) all contracts executed by Contractors.
“Contractor” shall means each contractor, subcontractor or supplier who will perform work or supply materials for the Georgia Facility pursuant to contracts or work or purchase orders executed or issued by Borrower or the General Contractor.
“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, even if subject to approval rights with respect to certain decisions, whether through the ability to exercise voting power, by contract or otherwise. A Person shall not be deemed to be “controlled by” another Person solely by means of such other Person’s ownership of Equity Interests in the Person specified unless such other Person holds or beneficially owns, directly or indirectly, 10% or more of the Equity Interest in the Person specified or 10% or more of any class of voting securities of the Person specified; provided, however, the foregoing limitations shall not restrict whether a Person is deemed to be “controlled by” another Person if such other Person has the power to direct or cause the direction of the management or policies of a Person, even if subject to approval rights with respect to certain decisions, and even if through the ability to exercise voting power less than the ownership thresholds set forth in the foregoing clause, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.
“Control Agreement” means a fully-blocked control agreement, in form and substance reasonably satisfactory to the Lender, executed and delivered by any Loan Party, the Lender and the financial institution in which the applicable account is maintained.
“Convertible Notes” means those certain Aspen Aerogels, Inc. Convertible Senior PIK Toggle Notes due 2027.
“Convertible Notes Subordination Agreement” means that certain Subordination Agreement, dated as of the Closing Date, among the Lender, Parent, Wood River Capital, LLC, Borrower, Aspen RI, subordinating the Holders (as defined in the Convertible Notes) right of payment to the Obligations, as such agreement may be amended, restated, amended and restated, supplemented or otherwise modified from time to time in accordance with its terms.
“Cure Amount” has the meaning assigned to such term in Section 8.3.
“Cure Right” has the meaning assigned to such term in Section 8.3.
“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 Interest” has the meaning specified therefor in Section 2.2(b) of this Agreement.
“Deposit Account” means any deposit account (as that term is defined in the Code).
“Disbursement Account” has the meaning specified therefor in Section 5.6 of this Agreement.
“Disinterested Board Member” means a member of the Board of Directors of any Loan Party who (a) is not a current employee of such Loan Party or any of its Affiliates, (b) does not receive remuneration from such Loan Party or any of its Affiliates, either directly or indirectly, in any capacity other than as a director, except in an amount for which disclosure would not be required pursuant to Item 404(a) of the proxy solicitation rules of the SEC and (c) does not possess an interest in any other transaction, and is not engaged in a business relationship, for which disclosure would be required pursuant to Item 404(a) or (b) of the proxy solicitation rules of the SEC.
“Disqualified Equity Interest” means any Equity Interest that, by its terms (or the terms of any security or other Equity Interests into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition (a) matures or is mandatorily redeemable (other than solely for Equity Interests that are not Disqualified Equity Interests), pursuant to a sinking fund obligation otherwise, (b) contains a mandatory repurchase obligation or any other repurchase obligation at the option of the holder thereof (other than solely for Equity Interests that are not Disqualified Equity Interests), in whole or in part, (c) provides for scheduled payments of dividends in cash, or (d) is or becomes 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 ninety-one (91) days after the Term Loan Commitment Expiration Date; provided, that any Equity Interests that would not constitute Disqualified Equity Interests but for provisions thereof giving holders thereof (or the holders of any security into or for which such Equity Interests are convertible, exchangeable or exercisable) the right to require the issuer thereof to redeem such Equity Interests upon the occurrence of any change of control or asset sale event occurring prior to ninety-one (91) days following the Maturity Date at the time such Equity Interests are issued shall not constitute Disqualified Equity Interests if such Equity Interests provide that the issuer thereof will not redeem any such Equity Interests pursuant to such provisions prior to the Maturity Date).
Notwithstanding the foregoing, (A) if such Equity Interests are issued pursuant to any plan for the benefit of directors, officers, employees, members of management, managers or consultants or by any such plan to such directors, officers, employees, members of management, managers or consultants, in each case, in the ordinary course of business of Parent, Borrower or any of its Subsidiaries, such Equity Interests shall not constitute Disqualified Equity Interests solely because it may be required to be repurchased by the issuer thereof in order to satisfy applicable statutory or regulatory obligations, and (B) no Equity Interests held by any future, present or former employee, director, officer, manager, member of management or consultant (or their respective Affiliates) of Parent, Borrower or its Subsidiaries shall be considered Disqualified Equity Interests because such stock is redeemable or subject to repurchase pursuant to any management equity subscription agreement, stock option, stock appreciation right or other stock award agreement, stock ownership plan, Governing Document, stockholder agreement or similar agreement that may be in effect from time to time.
“Division” means, in reference to any Person which is an entity, the division of such Person into two (2) or more separate Persons, with the dividing Person either continuing or terminating its existence as part of such division, including, without limitation, as contemplated under Section 18-217 of the Delaware Limited Liability Company Act for limited liability companies formed under Delaware law, or any analogous action taken pursuant to any other applicable law with respect to any corporation, limited liability company, partnership or other entity.
“Dollars” or “$” means United States dollars.
“Domestic Subsidiary” means a Subsidiary organized under the laws of the United States or any state or territory thereof or the District of Columbia.
“Eligible Assignee” means (a) any Affiliate of the Lender or (b) any other Person (other than (i) a natural person and (ii) any Person that is identified by Borrower as a Company Competitor of Parent and/or any of its Subsidiaries (or any Affiliate of such competitor) at the time the Lender provides notice of such assignment pursuant to Section 12.1).
“Environmental Action” means any written complaint, summons, citation, notice of violation, order, Claim, judicial or administrative proceeding or judgment, received by any Loan Party from any Governmental Authority or any third party alleging: (a) violations of or non-compliance with Environmental Law; (b) releases of Hazardous Materials from or at any assets, properties, or businesses of any Loan Party, any Subsidiary of a Loan Party, or any of their predecessors in interest; or (c) releases of Hazardous Materials from or at any off-site facilities which received Hazardous Materials for off-site treatment, storage, disposal, or other management that were generated in connection with the Project or the Rhode Island Property by any Loan Party, any Subsidiary of any Loan Party, or any of their predecessors in interest.
“Environmental Indemnity Agreements” means those two Environmental Indemnity Agreements, dated as of the date hereof, among the Lender and the Loan Parties as indemnitors, governing the Rhode Island Property and the Georgia Property, respectively.
“Environmental Law” means any applicable federal, state, provincial, foreign or local statute, law, rule, regulation, ordinance or code now or hereafter in effect and in each case as amended, including any judicial or administrative order, consent decree or judgment, in each case, to the extent binding on any Loan Party, relating to the protection of the environment or to Hazardous Materials, including, without limitation, those governing the Permits, and also including, without limitation, the Comprehensive Environmental Response, Compensation, and Liability Act, the Resource Conservation and Recovery Act, the Toxic Substances Control Act, the Clean Air Act, the Clean Water Act, and similar state and local requirements.
“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 of any Remedial Action required under Environmental Law, and which relate to any Environmental Action.
“Environmental Lien” means any Lien in favor of any Governmental Authority for Environmental Liabilities.
“Equipment” means all “equipment” as defined in the Code with such additions to such term as may hereafter be made, and includes without limitation all machinery, fixtures, goods, vehicles (including motor vehicles and trailers), and any interest in any of the foregoing.
“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) and including any of the foregoing which is by its terms or upon the happening of an event convertible into any such other interest.
“Equity Investment” has the meaning specified therefor in Schedule 3.2 of this Agreement.
“Event of Default” has the meaning specified therefor in Section 7 of this Agreement.
“Excluded Accounts” means the Accounts listed on Schedule 1.1(d) (as may be supplemented by Borrower in writing from time to time).
“Exchange Act” means the Securities Exchange Act of 1934, as in effect from time to time.
“Excluded Assets” has the meaning specified therefor in the definition of “Collateral”.
“Existing Letters of Credit” has the meaning specified therefor in clause (n) of the definition of “Permitted Indebtedness”.
“Financial Officer” means the Chief Financial Officer, principal accounting officer, treasurer or corporate controller.
“First Amendment Effective Date” means September 28, 2023.
“Fiscal Quarter” means the fiscal quarter of Parent, ending on the last day of each March, June, September and December.
“Floor” means a rate of interest equal to 1.00%.
“Force Majeure” means any of the following circumstances to the extent they are outside the control of any Loan Party: (a) any act or provision of any present or future law or regulation or governmental authority; (b) acts of God; (c) earthquakes; (d) floods; (e) wars; (f) terrorism; or (g) changes to the design of the Project required by the Lender and which could reasonably be expected to result in a Project MAE.
“Foreign Official” has the meaning specified therefor in Section 4.12(b)(i) of this Agreement.
“Foreign Subsidiary” means any direct or indirect Subsidiary of any Loan Party that is not a Domestic Subsidiary.
“Funding Date” means each date of borrowing on which the conditions set forth in Section 3.2 are satisfied.
“GAAP” means generally accepted accounting principles as in effect from time to time in the United States, consistently applied.
“General Contractor” shall means Turner Construction, who has been retained by Borrower as the general contractor for the construction of the Georgia Facility.
“General Contractor’s Contract” shall means the stipulated sum contract, dated as of February 17, 2022 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time in a manner not otherwise prohibited by this Agreement), between Borrower and the General Contractor for the costs of construction of the Improvements.
“General Motors” has the meaning specified therefor in the preamble to this Agreement.
“Georgia Facility” shall means that certain aerogel manufacturing plant to be built on the Georgia Property.
“Georgia Lease” that certain Lease Agreement dated as of May 1, 2022, between Borrower and the Development Authority of Bulloch County with respect to the Georgia Property.
“Georgia Property” shall means the real property located at Bulloch County, Georgia, upon which the Georgia Facility are to be constructed. The Property is legally described in Exhibit A to the Georgia Lease.
“GM Competitor” is any entity that is:
“GM Purchase Contracts” means all purchase orders and related agreements, as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, entered into by Parent or any of its Affiliates and the Lender (or any of the Lender’s affiliates), in connection with the purchase of the Product.
“Governing Documents” means, with respect to any Person, the certificate or articles of incorporation or formation, by-laws, limited liability company agreement or operating agreement or other equivalent organizational documents of such Person.
“Governmental Approval” is any consent, authorization, approval, order, license, franchise, permit, certificate, accreditation, registration, filing or notice, of, issued by, from or to, or other act by or in respect of, any Governmental Authority.
“Governmental Authority” means the government of any nation or any political subdivision thereof, whether at the national, state, territorial, provincial, 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.
“Governmental Requirements” means all laws, ordinances, rules, regulations, codes, orders, writs, injunctions or decrees of any Governmental Authority applicable to Borrower, Guarantor, or the Property or any portion of the Project.
“Guarantors” means Parent, Aspen RI and any additional guarantor entering into a Guaranty after the Closing Date in accordance with Section 5.9.
“Guaranty” has the meaning specified therefor in Section 2.4(ii) of this Agreement.
“Hazardous Materials” means: (a) substances that give rise to liability under Environmental Law or 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 substances regulated by reason of deleterious properties such as ignitability, corrosively, 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 explosives or any radioactive materials, and (d) asbestos in any form, polychlorinated biphenyls, and per- and polyfluoroalkyl substances.
“Improvements” shall means any physical improvements to the Georgia Property.
“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 or liabilities of others secured by a Lien on any asset of such Person, irrespective of whether such obligation or liability is assumed, (d) 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 repayable in accordance with customary trade practices and which are paid in accordance with such terms and not on a deferred basis), (e) all
obligations of such Person in respect of Disqualified Equity Interests, and (f) 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 (d) 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 9.3 of this Agreement.
“Indemnified Person” has the meaning specified therefor in Section 9.3 of this Agreement.
“Insolvency Proceeding” means any of the following: (a) the filing by any Loan Party of a voluntary petition in bankruptcy under any provision of any bankruptcy law (including the Bankruptcy Code) or a petition to take advantage of any receivership or insolvency laws, including any petition seeking the dissolution, winding up, total or partial liquidation, reorganization, composition, arrangement, adjustment or readjustment or other relief of any Loan Party, any Loan Party’s debts or any Loan Party’s assets or the appointment of a trustee, receiver, liquidator, custodian or similar official for any Loan Party or a material part of any Loan Party’s property; (b) the inability of any Loan Party to pay its debts (including trade debts) generally as they become due; (c) the appointment of a receiver, liquidator, trustee, custodian or other similar official for any Loan Party or all or a material part of any Loan Party’s assets; (d) the filing of any petition against any Loan Party under any bankruptcy law (including the Bankruptcy Code) or other receivership or insolvency law, including any petition seeking the dissolution, winding up, total or partial liquidation, reorganization, composition, arrangement, adjustment or readjustment or other relief of any Loan Party, any Loan Party’s debts or any Loan Party’s assets or the appointment of a trustee, receiver, liquidator, custodian or similar official for any Loan Party or a material part of any Loan Party’s property; (e) the general assignment by any Loan Party for the benefit of creditors or any other marshaling of the assets and liabilities of any Loan Party; or (f) a corporate (or similar) action taken by any Loan Party to authorize any of the foregoing.
“Intellectual Property” shall means all patents, trademarks, service marks, trade names, copyrights, know-how and processes.
“Intellectual Property License Agreements” means all agreements between any Loan Party and any third party pursuant to which (a) such third party grants to any Loan Party a license to any material Intellectual Property Rights, including the Technology License Agreement (other than over-the-counter or off-the-shelf software licenses entered into by a Loan Party that are commercially available to the public) and (b) such Loan Party grants to any third party a license to any material Intellectual Property Rights (other than non-exclusive licenses of material Intellectual Property Rights granted by a Loan Party to its customers in the ordinary course of business) and in each case of clauses (a) and (b), necessary to operate any Loan Party’s business.
“Intellectual Property Rights” means any and all intellectual property rights in any jurisdiction throughout the world, including: (a) patents and patent applications; (b) domain names, trademarks, service marks, trade dress, trade names, logos and corporate names, and registrations and applications for registration thereof together with all translations, transliterations, adaptions, derivations and combinations thereof and including all of the goodwill associated therewith; (c) copyrights and copyrightable works (registered or unregistered); (d) mask works; (e) trade secrets, confidential information, and know‑how; (f) rights in software (including source code, object code, and executable code) and (g) registrations and applications for any of the foregoing.
“Intercreditor Agreement” means (a) the Revolver Intercreditor Agreement and (b) any other intercreditor agreement in form and substance reasonably acceptable to the Lender.
“Interest Payment Date” has the meaning specified therefor in Section 2.2(a) of this Agreement.
“Interest Rate” has the meaning specified therefor in Section 2.2(a) of this Agreement.
“Inventory” means all “inventory” as defined in the Code in effect on the date hereof with such additions to such term as may hereafter be made, and includes without limitation all merchandise, raw materials, parts, supplies, packing and shipping materials, work in process and finished products, including without limitation such inventory as is temporarily out of any Loan Party’s custody or possession or in transit and including any returned goods and any documents of title representing any of the above.
“Investment” means, with respect to any Person, 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, (b) bona fide accounts receivable arising in the ordinary course of business and (c) loans and advances of payroll payments or other compensation (including in connection with deferred compensation plans) to present or former employees, directors, members of management or officers in the ordinary course of business), or acquisitions of Indebtedness, Equity Interests, or all or substantially all of the assets of such other Person (or of any division or business line of such other Person), and any other items that are or would be classified as investments on a balance sheet prepared in accordance with GAAP. 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.
“IRC” means the Internal Revenue Code of 1986, as amended, and any successor statutes, and all regulations and guidance promulgated thereunder. Any reference to a specific section of the IRC shall be deemed to be a reference to such section of the IRC and any successor statutes, and all regulations and guidance promulgated thereunder.
“Leasehold Deed to Secure Debt” means that certain Leasehold Deed to Secure Debt, Assignment and Security Agreement, dated as of the date hereof, among Borrower and the Lender.
“Leases” means the Georgia Lease and any other leases or amendment to any leases covering any part of the Properties.
“Lender” has the meaning specified therefor in the preamble to this Agreement, and shall also include any other Person made a party to this Agreement pursuant to the provisions of Section 12.1 of this Agreement and “Lenders” means each of the Lenders or any one or more of them.
“Lender Expenses” means all (a) costs or expenses (including Taxes and insurance premiums) required to be paid by any Loan Party under any of the Loan Documents that are paid, advanced, or incurred by the Lender, (b) reasonable and documented out-of-pocket fees or charges paid or incurred by the Lender in connection with the Lender’s transactions with Loan Party 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) the Lender’s reasonable and documented out-of-pocket fees and charges imposed or incurred in connection with any background checks related to Loan Party, (d) reasonable and documented out-of-pocket costs and expenses paid or incurred by the Lender 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, (e) reasonable and documented out-of-pocket costs incurred in connection with Lender’s exercise of its inspection and related collateral rights pursuant to Section 5.4, (f) the Lender’s reasonable costs and expenses (including reasonable and documented out-of-pocket 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, the Lender’s Liens in and to the Collateral, or the Lender’s relationship with Borrower, (g) the Lender’s reasonable and documented costs and expenses (including reasonable and documented out-of-pocket attorneys’ fees and due diligence expenses) incurred in advising, structuring, drafting, reviewing, administering, or amending, waiving, or modifying the Loan Documents, and (h) the Lender’s reasonable and documented out-of-pocket costs and expenses (including reasonable and documented out-of-pocket 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 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 enforcement action or any Remedial Action with respect to the Collateral.
“Lender-Related Person” means, with respect to any Lender, such Lender, together with such Lender’s Affiliates, officers, directors, employees, attorneys, and agents.
“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.
“Loan Documents” means (a) this Agreement, (b) the Guaranty, (c) the Security Documents, (d) the Perfection Certificate, (e) the Note and any other note or notes executed by Borrower in connection with this Agreement and payable to the Lender, (f) the Convertible Notes Subordination Agreement and any other subordination agreement entered into with Lender and any other holder of Equity Interests or Indebtedness in the future, (g) any Intercreditor Agreement and (h) any other instrument or agreement entered into, now or in the future, by Borrower or any Guarantor and the Lender in connection with this Agreement and designated by Borrower and the Lender as a “Loan Document”.
“Loan Parties” means Borrower and the Guarantors.
“Major Subcontract” shall means any subcontractor contract that is related to the Project with a value that exceeds $2,000,000 in the aggregate, other than any such subcontractor contract that will be completed in full prior to December 31, 2022 and for which less than $5,000,000 remains to be paid thereunder as of December 31, 2022.
“Material Adverse Effect” means (a) a material adverse effect on the timing or scope of the Project or a material adverse effect on the ability of the Parent to perform under the GM Purchase Contracts (inclusive of the ability to achieve a Milestone that would be reasonably expected to result in an Event of Default under Section 7.6) or to achieve Start of Production at the Georgia Facility (a Material Adverse Effect pursuant to this clause (a), a “Project MAE”), (b) a material adverse effect on the business, operations, conditions (financial or otherwise) of Borrower or any Guarantor, (c) a material impairment of any Loan Party’s ability to perform its obligations under the Loan Documents to which Borrower is a party or of the Lender’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 the Lender), or (d) a material impairment of the enforceability or priority of the Lender’s Liens with respect to all or a material portion of the Collateral.
“Material Contracts” shall means, collectively, (i) the agreements evidencing Material Indebtedness; (ii) the documents evidencing the Convertible Notes, (iii) each purchase contract with regard to the purchase of any machinery and equipment funded with the proceeds of the Term Loan, (iv) the agreements to which any Loan Party is subject in connection with the tax exempt financing issued by the Development Authority of Bulloch County in connection with the construction of the Georgia Facility, and (v) all other contracts, leases, instruments, guaranties, licenses, or other arrangements (other than the Loan Documents) to which Borrower is or became a party and as to which the breach, nonperformance, cancellation or failure to renew by any party thereto could reasonably be expected to result in a Material Adverse Effect.
“Material Indebtedness” means any Indebtedness of any Loan Party or its Subsidiaries in a principal amount in excess of $1,000,000 individually (exclusive of Capital Leases in the aggregate of less than $2,500,000).
“Maturity Date” means the earliest of: (a) March 31September 30, 2025 and (b) ninety (90) days before the maturity date of any other debt facility any Loan Party may be a party to (other than the Revolving Loan Agreement) and (c) the date that any Term Loan shall become due and payable in full hereunder, whether by acceleration or otherwise.
“Measurement Period” means the four Fiscal Quarters then ended for which Financial Statements have been (or are required to have been) delivered pursuant to Section 5.2(a) or (b), as applicable.
“Milestone” means each of the actions, events or deliverables to be completed by Borrower as set forth on Schedule 7.6.
“More Favorable Provision” has the meaning specified therefor in Section 5.12 of this Agreement.
“Mortgage” shall means that certain Mortgage covering the Rhode Island Property, executed by Aspen RI and delivered to the Lender pursuant to this Agreement, securing the Obligations.
“Net Proceeds” means, with respect to any event, the proceeds actually received (directly or indirectly) from time to time (whether as initial consideration or through the payment of deferred consideration), in cash or Cash Equivalents, by or on behalf of such Loan Party, in connection therewith after deducting therefrom only (i) reasonable fees, commissions, and expenses related thereto and required to be paid by such Loan Party in connection with such event and (ii) taxes paid or payable to any taxing authorities by such Loan Party in connection with such event, in each case to the extent, but only to the extent, that the amounts so deducted are, at the time of receipt of such cash, actually paid or payable to a Person that is not an Affiliate of any Loan Party or any of its Subsidiaries, and are properly attributable to such transaction.
“Note” has the meaning given on Schedule 3.1.
“Obligations” means all loans hereunder, 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), premiums, liabilities, obligations (including indemnification obligations), fees, Lender 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 for amounts owing by Borrower or Guarantor arising out of, under, pursuant to, in connection with, or evidenced by this Agreement or any of the other Loan Documents, 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 Borrower or Guarantor is required to pay or reimburse by the Loan Documents or by law or otherwise in connection with the Loan Documents. Without limiting the generality of the foregoing, the Obligations of Borrower under the Loan Documents include the obligation to pay (i) the principal of the Term Loans (including capitalized interest thereon), (ii) interest accrued on the Term Loans, (iii) Lender Expenses, (iv) fees payable under this Agreement or any of the other Loan Documents, and (v) indemnities and other amounts payable by Borrower 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.
“Other Financing Facility” means any agreement (whether in the form of a loan or credit agreement, stockholder agreement, operating agreement, investment agreement or other documentation), other than the Revolving Loan Agreement and Convertible Notes, entered into by any Loan Party which is binding upon such Loan Party, or to which such Loan Party or its assets is subject, in connection with the provision of equity or debt financing by any third party (including any Additional Financing Facility), and is inclusive of all agreements entered into by such parties in connection with any such equity or debt financing.
“Paid in Full” or “Payment in Full” means all Obligations (other than contingent indemnification obligations, if any, to the extent no unsatisfied claim giving rise thereto has been or may reasonably be expected to be asserted) shall have been paid in full in cash by wire transfer of immediately available funds and any commitment to make Term Loans shall have terminated. For clarity, in the event of a termination of the GM Purchase Contracts (other than by the Lender) prior to satisfaction in full of the Obligations, or an Event of Default under this Agreement at any time as and to the extent provided in Section 7, any unpaid portion of the Obligations must be satisfied in full by indefeasible payment in cash.
“Party Representatives” has the meaning specified therefor in Section 14.7 of this Agreement.
“Patriot Act” has the meaning specified therefor in Section 4.10 of this Agreement.
“Perfection Certificate” has the meaning specified therefor in Section 4.1(a) of this Agreement, as amended, restated, amended and restated, supplemented or otherwise modified from time to time in accordance with, and subject to, Section 5.2(j).
“Periodic Term SOFR Determination Day” has the meaning specified in the definition of “Term SOFR”.
“Permits” means all authorizations, approvals, permits, variances, land use entitlements, consents, licenses, franchises and agreements issued by or entered into with any Governmental Authority now or hereafter required for the applicable Loan Party to conduct its business and complete the Project (including amendments to any of the foregoing).
“Permitted Change of Control” means a Change of Control; provided, that the Person who Controls Borrower or the Parent, as applicable, (i) is not a GM Competitor, (ii) agrees in writing to abide by, and assume all, of the liabilities, obligations and terms of this Agreement, the other Loan Documents, the GM Purchase Contracts and any other related agreement or document and (iii) has the reasonable financial and operational capability to comply with the obligations of Borrower or Parent, as applicable, under the GM Purchase Contracts.
“Permitted Indebtedness” means:
provided, that with respect to any Indebtedness incurred pursuant to clauses (e) (with regard to up to $50,000,000 of such Indebtedness), (g) and (l) (to the extent applicable), the proceeds thereof shall be available solely for the Project or as otherwise permitted pursuant to Section 5.13.
“Permitted Investments” are:
“Permitted Liens” means:
“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.
“PIK Election” has the meaning specified therefor in Section 2.2(a) of this Agreement.
“PIK Interest” has the meaning specified therefor in Section 2.2(a) of this Agreement.
“Plans” shall means the final working drawings and specifications for the construction of the Georgia Facility and shall include all architectural and engineering studies, plans and specifications.
“Policy” and “Policies” have the meaning specified therefor in Section 5.5(b) of this Agreement.
“Product” refers to the “Goods” as such term is defined in the GM Purchase Contracts.
“Project” has the meaning specified therefor in the preamble to this Agreement.
“Project Budget” shall means the project budget delivered to the Lender by Borrower on the Closing Date substantially in the form of budget set forth in Schedule 1.1(p) (which shall be subject to the Permitted Variance), as amended, restated, amended and restated, supplemented or otherwise modified by Borrower from time to time (it being understood and agreed that any amendments, restatements, amendments and restatements, supplements or other modifications in excess of the Permitted Variance subject to the reasonable approval of the Lender); provided, that, for the avoidance of doubt, the Project Budget includes up to $2,500,000 to finance the cost of the payment and performance bonds to be delivered pursuant to Section 5.16(b).
“Project Contracts” shall means the Construction Contracts, the Architect’s Contract and any and all other contracts between Borrower and any third party relating to the development, construction, management and maintenance of the Project (including amendments to any of the foregoing).
“Project Documents” shall means the Plans, the Project Contracts and all Permits.
“Project MAE” shall havehas the meaning specified therefor in the “Material Adverse Effect” definition.
“Project Permits” means all permits necessary for any work, the nature and extent of which requires a permit, in connection with the construction or equipping of the Project.
“Projections” shall havehas the meaning specified therefor in Section 4.26(a).
“Property” shall means the Rhode Island Property or the Georgia Property, and “Properties” shall means both collectively.
“Real Property” means any estates or interests in real property now owned or hereafter acquired by Borrower and the improvements thereto.
“Registered Organization” is any “registered organization” as defined in the Code with such additions to such term as may hereafter be made.
“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 of Hazardous Materials, (c) restore or reclaim natural resources or the environment, (d) perform any pre-remedial studies, investigations, or post-remedial operation and maintenance activities, (e) conduct any other actions in response to a release of Hazardous Materials required by Environmental Law, or (f) correct or resolve any violation of or non-compliance with Environmental Law.
“Requirement of Law” is, as to any Person, any law (statutory or common), treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case, applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
“Responsible Officer” is any of the Chief Executive Officer, President, Chief Financial Officer, Vice President (Finance), Controller or equivalent officer of any Loan Party, as applicable.
“Restricted License” is any license or other agreement, the absence of which would be reasonably expected to cause a Material Adverse Effect on any Loan Party’s business, with respect to which such Loan Party is the licensee (a) that prohibits or otherwise restricts such Loan Party from granting a security interest in such Loan Party’s interest in such license or agreement or any other property, or (b) for which a default under or termination of interferes with the Lender’s right to sell any Collateral.
“Restricted Payment” means to (a) declare or pay any dividend or make any other payment or distribution, directly or indirectly, on account of Equity Interests issued by any Loan Party (including any payment in connection with any merger or consolidation involving any Loan Party) or to the direct or indirect holders of Equity Interests issued by any Loan Party in its capacity as such, or (b) purchase, redeem, make any sinking fund or similar payment, or otherwise acquire or retire for value (including in connection with any merger or consolidation involving any Loan Party) any Equity Interests issued by any Loan Party, (c) make any payment to retire, or to obtain the surrender of, any outstanding warrants, options, or other rights to acquire Equity Interests of any Loan Party now or hereafter outstanding, or (d) pay any fees or other remuneration to any Affiliate of any Loan Party (except pursuant to the terms of the Convertible Notes, the documentation for the Equity Investment and any other Permitted Indebtedness entered into with an Affiliate to the extent permitted pursuant to Section 6.7).
“Revenue Bond” means that certain Development Authority of Bulloch County Taxable Revenue Bond (Aspen Aerogels, LLC Project), Series 2022 in the principal amount of up to $650,000,000 issued by the Development Authority of Bulloch County in connection with the construction of the Georgia Facility.
“Revenue Bond Pledge Agreement” means that certain pledge agreement entered into in connection with that certain Revenue Bond.
“Revolver Intercreditor Agreement” means an intercreditor agreement between the Lender and the Revolving Lender substantially in the form of Exhibit E (with such changes to such form as may be reasonably acceptable to the Lender).
“Revolving Lender” means a lender providing working capital financing to any Loan Party with such advances being based on working capital assets.
“Revolving Loan Agreement” means a revolving credit agreement between any Loan Party and a Revolving Lender in form reasonably acceptable to the Lender.
“Rhode Island Facility” shall means that certain aerogel manufacturing plant built on the Rhode Island Property.
“Rhode Island Property” shall means the real property located at 3 Dexter Road, East Providence, Rhode Island 02914. The Property is legally described in the Mortgage.
“Sanctioned Entity” means (a) a country or a government of a country, (b) an agency of the government of a country, (c) an organization directly or indirectly controlled by a country or its government, (d) a Person resident in or determined to be resident in a country, in each case, that is subject to a country sanctions program administered and enforced by OFAC.
“Sanctioned Person” means a Person named on the list of Specially Designated Nationals maintained by OFAC.
“Sanctions” has the meaning specified therefor in Section 4.11 of this Agreement.
“SEC” has the meaning specified in Section 4.15 of this Agreement.
“SEC Reports” has the meaning specified in Section 4.15 of this Agreement.
“Securities Act” means the Securities Act of 1933, as amended.
“Security Agreement” has the meaning specified therefor in Section 2.4(i) of this Agreement.
“Security Documents” means, collectively, any Intercreditor Agreement, the Convertible Notes Subordination Agreement, the Security Agreement, the Guaranty, the Leasehold Deed to Secure Debt, the Mortgage, the Revenue Bond Pledge Agreement, the Collateral Assignment Agreements, the Control Agreement, the Collateral Access Agreements and each other agreement, document or instrument entered into by a Loan Party that creates or purports to create a Lien over all or any part of its assets in respect of the Obligations in favor of the Lender.
“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).
“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, and (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 relating to fraudulent 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).
“Start of Production” means the date agreed to by Borrower and the Lender for the start of production at the Georgia Facility under the applicable GM Purchase Contracts.
“Subordinated Indebtedness” means any unsecured Indebtedness (including Indebtedness under the Convertible Notes) incurred from time to time that is subordinated in right of payment to the Obligations pursuant to a subordination agreement in form and substance reasonably acceptable to the Lender and (a) that is not guaranteed by any other party, (b) that is not subject to scheduled amortization, redemption, sinking fund or similar payment and does not have a final maturity, in each case, on or before the date that is six months after the Maturity Date, (c) that does not include any financial covenants or any covenant or agreement that is more restrictive or onerous on any Loan Party in any material respect than any comparable covenant in this Agreement and is otherwise on terms and conditions reasonably acceptable to the Lender, (d) shall be limited to cross-payment default and cross-acceleration to designated “senior debt” (including the Obligations), and (e) the terms and conditions of the subordination are reasonably acceptable to the Lender in its sole discretion.
“Subsidiary” of a Person means a corporation, partnership, limited liability company, or other entity in which that Person directly or indirectly owns or controls 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.
“SVB Revolving Loan Agreement” has the meaning specified therefor in clause (l) of Schedule 3.1.
“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.
“Technology License Agreement” means an Intellectual Property royalty free license agreement between Borrower and/or Aspen RI and Parent providing that Borrower and Aspen RI may carry out their respective operations using any of the Intellectual Property owned by the Parent.
“Title Company” has the meaning specified therefor in Section 5.5(a)(ix) of this Agreement.
“Title Policy” has the meaning specified therefor in Section 5.5(a)(ix) of this Agreement.
“Term Loan” has the meaning specified therefor in Section 2.1(b) of this Agreement.
“Term Loan Budget” shall means the budget delivered prior to each Funding Date, substantially in the form of the budget consistent with AIA Form G703 and set forth in Schedule 1.1(t) (subject to the Permitted Variance), or such other form that provides substantially the same scope of information, as of the time of such Funding Date, with respect to use of proceeds, schedule of the Project and remaining sources and uses, including setting forth the expected use of proceeds of the Term Loans being funded on the applicable Funding Date (and the Equity Investment and/or any Additional Financing Facility funded concurrently therewith), as amended, restated, amended and restated, supplemented or otherwise modified by Borrower from time to time (it being understood and agreed that any amendments, restatements, amendments and restatements, supplements or other modifications in excess of the Permitted Variance are subject to the reasonable approval of the Lender).
“Term Loan Commitment” has the meaning specified therefor in Section 2.1(a) of this Agreement.
“Term Loan Commitment Expiration Date” means the earlier of (i) with respect to Term Loan Commitments that are funded, the date of borrowing of the applicable Term Loan and (ii) with respect to Term Loan Commitments that are not funded, September 30March 31, 20234 (or such later date as approved in writing by the Lender in its sole discretion).
“Term SOFR” means, the Term SOFR Reference Rate for a six-month interest period on the day (such day, the “Periodic Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to the first day of such interest period, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Periodic Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Periodic Term SOFR Determination Day, and; provided, further, that if Term SOFR determined as provided above shall ever be less than the Floor, then Term SOFR shall be deemed to be the Floor.
“Term SOFR Administrator” means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the Lender in its reasonable discretion).
“Term SOFR Reference Rate” means the forward-looking term rate based on SOFR.
“Test Date” means the last day of each Fiscal Quarter for which a Compliance Certificate has been (or is required to have been) delivered pursuant to Section 5.2(j)(y).
“Total Leverage Ratio” means, as of any Test Date, the ratio of (i) total Indebtedness of Parent and its Subsidiaries (excluding Indebtedness incurred under a Revolving Loan Agreement that benefits the Borrower in a principal amount not to exceed $50,000,000 and undrawn letters of credit permitted under clause (n) of the definition of Permitted Indebtedness) as of such Test Date to (ii) Consolidated EBITDA of Parent and its Subsidiaries for the most recently ended Measurement Period.
“United States” means the United States of America.
“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.
“Vehicle” means any motor vehicle (including any car, van, or truck), regardless of whether used for household, commercial (including fleets, first to last mile delivery, or other transportation and logistics services), or other purposes.
“Voidable Transfer” has the meaning specified therefor in Section 14.6 of this Agreement.