Exhibit 10.1
***Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is not material and is the type the registrant treats as private or confidential. Such omitted information is indicated by brackets (“[***]”) in this exhibit.***
AMENDMENT NO. 1 to SECOND AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT
This AMENDMENT No. 1 TO SECOND AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT (this “Amendment”) is entered into as of March 17, 2023 (the “Effective Date”), by and among FISCALNOTE, INC., a Delaware corporation (“Borrower Representative”), each of the undersigned Persons that are party to the Credit Agreement (as defined below) as borrowers or guarantors (together with Borrower Representative and each other Person from time to time party to the Credit Agreement as borrower or guarantor, collectively “Loan Parties”, and each, a “Loan Party”), each of the undersigned Lenders, constituting Required Lenders (as defined in the Credit Agreement) and RUNWAY GROWTH FINANCE CORP. (formerly known as Runway Growth Credit Fund Inc.), as administrative agent and collateral agent for Lenders (in such capacity, “Agent”), and amends the terms of that certain Second Amended and Restated Credit and Guaranty Agreement dated as of July 29, 2022, by and among Borrower Representative, the other Borrowers and Guarantors party thereto, Lenders, and Agent (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”).
The parties hereby agree as follows:
(b) Minimum Adjusted EBITDA. Achieve minimum Adjusted EBITDA for the periods set forth in Schedule 6.10(B) of at least the amount set forth opposite such periods therein, tested on the last day of each fiscal quarter, provided that with respect to periods for which required EBITDA is a negative number, Adjusted EBITDA losses shall not exceed such amount.
(c) Minimum ARR. Achieve ARR in an amount not less than the amount set forth on Schedule 6.10(C) hereto, tested on the last day of each fiscal quarter.
(d) Maximum Capitalized Expenditures. Not permit Capitalized Expenditures for any measurement period specified in Schedule 6.10(D) to exceed the amount set forth opposite such period therein, tested on the last day of each fiscal quarter.
6.14 Holdings, Parent and Intermediate Parent as Holding Company. Each Borrower will not permit Holdings, Parent or Intermediate Parent to incur any liabilities (other than liabilities arising under the Loan Documents, the Restatement Date Merger Agreement and certain Subordinated Debt), own or acquire any assets (other than the Equity Interests of Parent and Intermediate Parent and their respective Subsidiaries, as applicable, or, with respect to Holdings, the Equity Interests of Dragonfly Eye Limited or its Subsidiaries) or engage itself in any operations or business, except as described in Section 5.12, or in connection with its existence as a public company.
“Adjusted EBITDA” means, with respect to any period,
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provided that, the aggregate amount added back pursuant to clauses (vi) through (ix) above (excluding the amount of any earnouts to the extent such earnouts are not paid in cash), shall not, for any consecutive twelve month period, exceed $2,000,000 in the aggregate unless otherwise approved by Required Lenders in their sole discretion,
minus
“ARR Ratio” means the ratio of (x) Funded Debt of the Loan Parties, on a consolidated basis and calculated on a pro forma basis (giving effect to any requested Incremental Term Loan and giving effect to any transaction proposed to be funded with the proceeds thereof), as of the most recent fiscal quarter then ended for which financial statements are available, to (y) ARR, as of such date.
“Capitalized Expenditures” means, for any measurement period, expenditures of Parent and its Subsidiaries on a consolidated basis, that are capitalized and amortized over a period of time in accordance with GAAP.
“Restatement Date Final Payment” means a payment (in addition to and not a substitution for the regular monthly payments of principal plus accrued interest) equal to $7,410,000.
“Subordinated Debt” means Indebtedness (including unsecured notes that are convertible into Equity Interests (other than Disqualified Equity Interests)) incurred by a Loan Party or a Subsidiary that is subordinated in writing to all of the Obligations pursuant to a Subordination Agreement, provided that (x) such Indebtedness shall not require (but may, at the option of such Loan Party or Subsidiary be permitted to the extent permitted hereunder) any payments in cash or other property (including, without limitation, for principal, interest, fees or premiums, but excluding payments capitalized to the principal of such Indebtedness) prior to the date that is at least 91 days following the Term Loan Maturity Date, and (y) the maturity date of such Indebtedness shall be at least 91 days following the Term Loan Maturity Date, in each case except for payments of cash in lieu of fractional shares of Equity Interests upon conversion into Equity Interests (other than Disqualified Equity Interests) and payments capitalized to the principal of such Indebtedness.
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[SIGNATURES APPEAR ON FOLLOWING PAGES]
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[SIGNATURE PAGE TO amendment no. 1 TO SECOND AMENDED AND RESTATED credit AND guaranty AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date set forth above.
lenders: |
RUNWAY GROWTH FINANCE CORP. |
By: /s/ Thomas B. Raterman Title: Chief Financial Officer and Chief Operating Officer |
ORIX GROWTH CAPITAL, LLC |
By: /s/ Jeffrey Bede Name: Jeffrey Bede Title: Managing Director |
CLOVER OROCHI LLC By: CLOVER PRIVATE CREDIT OPPORTUNITIES ORIGINATION II LP and CLOVER PRIVATE CREDIT OPPORTUNITIES ORIGINATION (LEVERED) II LP, its sole members By: UBS O’CONNOR LLC, its investment manager |
By: /s/ Rodrigo Telles Name: Rodrigo Telles Title: Managing Director
By: /s/ Baxter Wasson Name: Baxter Wasson Title: Managing Director |
ACM ASOF VIII SAAS FINCO LLC |
By: /s/ Joshua Ufberg Name: Joshua Ufberg Title: Authorized Signatory |
[SIGNATURE PAGE TO amendment no. 1 TO SECOND AMENDED AND RESTATED credit AND guaranty AGREEMENT]
borrowers: |
FISCALNOTE, INC.
By: /s/ Timothy Hwang Name: Timothy Hwang Title: Chief Executive Officer and President |
CQ-Roll Call, Inc. |
By: /s/ Timothy Hwang Name: Timothy Hwang Title: Chief Executive Officer and President |
CAPITOL ADVANTAGE LLC By: /s/ Timothy Hwang Name: Timothy Hwang Title: Chief Executive Officer and President |
VoterVoice, L.L.C. By: FiscalNote, Inc., its sole manager By: /s/ Timothy Hwang Name: Timothy Hwang Title: Chief Executive Officer and President SANDHILL STRATEGY LLC By: /s/ Jon Slabaugh Name: Jon Slabaugh Title: Manager |
[SIGNATURE PAGE TO amendment no. 1 TO SECOND AMENDED AND RESTATED credit AND guaranty AGREEMENT]
Guarantors: |
FISCALNOTE HOLDINGS, INC. By: /s/ Timothy Hwang Name: Timothy Hwang Title: Chief Executive Officer and President |
FISCALNOTE INTERMEDIATE HOLDCO, INC. (F/K/A FiscalNote Holdings, Inc.) By: /s/ Timothy Hwang Name: Timothy Hwang Title: Chief Executive Officer and President FISCALNOTE HOLDINGS II, INC. By: /s/ Timothy Hwang Name: Timothy Hwang Title: Chief Executive Officer and President |
FIRESIDE 21, LLC By: /s/ Timothy Hwang Name: Timothy Hwang Title: President |
FACTSQUARED, LLC By: /s/ Timothy Hwang Name: Timothy Hwang Title: Chief Executive Officer and President |
THE OXFORD ANALYTICA INTERNATIONAL GROUP, LLC By: /s/ Timothy Hwang Name: Timothy Hwang Title: President |
OXFORD ANALYTICA INC. By: /s/ Timothy Hwang Name: Timothy Hwang Title: Chief Executive Officer and President |
[SIGNATURE PAGE TO amendment no. 1 TO SECOND AMENDED AND RESTATED credit AND guaranty AGREEMENT] FISCALNOTE BOARDS LLC By: FiscalNote, Inc., its sole manager By: /s/ Timothy Hwang Name: Timothy Hwang Title: Chief Executive Officer and President |
PREDATA, INC. By: /s/ Joshua Haecker Name: Joshua Haecker Title: Chief Executive Officer |
CURATE SOLUTIONS, INC. By: /s/ Timothy Hwang Name: Timothy Hwang Title: Chief Executive Officer and President |
FORGE.AI, INC. By: /s/ Timothy Hwang Name: Timothy Hwang Title: Chief Executive Officer and President |
FRONTIER STRATEGY GROUP LLC By: /s/ Timothy Hwang Name: Timothy Hwang Title: Chief Executive Officer and President |
Schedule 1
Post-Closing Deliveries
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Exhibit C
Compliance Certificate
[***]
PART B – term loan commitments
[***]
Schedule 6.10(b)
MINIMUM ADJUSTED EBITDA – COVENANT LEVELS
[***]
Schedule 6.10(C)
MINIMUM ARR – COVENANT LEVELS
[***]
Schedule 6.10(D)
Maximum capitalized expenditures – COVENANT LEVELS
[***]
SUPPLEMENTal SCHEDULES TO THE SECURITY AGREEMENT
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