BLACKSKY TECHNOLOGY INC. BLACKSKY HOLDINGS, INC. BLACKSKY GEOSPATIAL SOLUTIONS, INC. BLACKSKY GLOBAL LLC SFI IP HOLDCO, LLC BLACKSKY INTERNATIONAL LLC BUILDING 5 LLC STIFEL BANK LOAN AND SECURITY AGREEMENT
BLACKSKY TECHNOLOGY INC. BLACKSKY HOLDINGS, INC. BLACKSKY GEOSPATIAL SOLUTIONS, INC. BLACKSKY GLOBAL LLC SFI IP HOLDCO, LLC BLACKSKY INTERNATIONAL LLC BUILDING 5 LLC STIFEL BANK LOAN AND SECURITY AGREEMENT
This LOAN AND SECURITY AGREEMENT (this “Agreement”) is entered into as of April 11, 2024 by and between STIFEL BANK, a Missouri state-chartered bank (“Bank”), BLACKSKY TECHNOLOGY INC., a Delaware corporation (“Parent Borrower”), BlackSky Holdings, Inc., a Delaware corporation, BlackSky Geospatial Solutions, Inc. a Delaware corporation, BlackSky Global LLC, a Delaware limited liability company, SFI IP Holdco, LLC, a Delaware limited liability company, BlackSky International LLC, a Delaware limited liability company, and Building 5 LLC, a Delaware limited liability company (together with Parent Borrower each a “Borrower” and collectively, the “Original Borrower”) and each Additional Borrower from time to time party hereto. RECITALS Borrower wishes to obtain credit from time to time from Bank, and Bank desires to extend credit to Borrower. This Agreement sets forth the terms on which Bank will advance credit to Borrower, and Borrower will repay the amounts owing to Bank. AGREEMENT The parties to this Agreement agree as follows: 1. DEFINITIONS AND CONSTRUCTION. 1.1 Definitions. As used in this Agreement, the following terms shall have the following definitions: “Account Control Agreement” means any control agreement among (i) the depository institution at which Borrower (or, as applicable, its Subsidiary that is a Loan Party) maintains a Deposit Account or the securities intermediary or commodity intermediary at which Borrower (or, as applicable, its Subsidiary that is a Loan Party) maintains a Securities Account or a Commodity Account, (ii) Borrower (or, as applicable, its Subsidiary that is a Loan Party), and (iii) Bank, pursuant to which Bank obtains control (within the meaning of the Code) over such Deposit Account, Securities Account, or Commodity Account. “Account Debtor” means any “account debtor” as defined in the Code. “Accounts” means all presently existing and hereafter arising accounts, contract rights, payment intangibles, and all other forms of obligations owing to Borrower arising out of the sale or lease of goods (including, without limitation, the licensing of software and other technology) or the rendering of services by Borrower, whether or not earned by performance, and any and all credit insurance, guaranties, and other security therefor, as well as all merchandise returned to or reclaimed by Borrower and Borrower’s Books relating to any of the foregoing. “Additional Borrower” means a Person who becomes a Borrower after the Closing Date in accordance with Section 6.13. “Advance” or “Advances” means a cash advance or cash advances under the Revolving Facility. “Advance Request Form” means an advance request form in substantially the form of Exhibit B attached hereto. “Affiliate” means, with respect to any Person, any Person that owns or controls directly or indirectly such Person, any Person that controls or is controlled by or is under common control with such Person, and each of such Person’s senior executive officers, directors, and partners. “Ancillary Services” means any products, services or financial accommodations requested by Borrower and approved by Bank, or otherwise provided by Bank (or any of its Affiliates) to Borrower or any of its Subsidiaries, under the Revolving Line, including and without limitation, Letters of Credit, Cash Management Services, FX Contracts, or other treasury management services. “Ancillary Services Agreement” means an agreement pursuant to which Bank (or its Affiliate) provides Ancillary Services.
2 “Ancillary Services Sublimit” means an aggregate sublimit for Ancillary Services under the Revolving Line not to exceed Five Hundred Thousand Dollars ($500,000). “Ancillary Services Usage” means, as of any date of determination, the aggregate outstanding amount of all Ancillary Services provided by Bank, including without limitation, net obligations under FX Contracts, the aggregate limits of all corporate credit cards and merchant card or account processing reserves and any other limits established, or reserves taken, by Bank in connection with other treasury management services requested by Xxxxxx Xxxxxxxx and approved by Bank. “Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to each Loan Party or any of its Affiliates from time to time concerning or relating to bribery or corruption, including without limitation the United States Foreign Corrupt Practices Act of 1977, as amended, the UK Bribery Act 2010 and other similar legislation in any other jurisdictions. “Anti-Terrorism Law” means any laws, rules, regulations or orders relating to terrorism or money laundering, including without limitation Executive Order No. 13224 (effective September 24, 2001), the Patriot Act, the laws comprising or implementing the Bank Secrecy Act, and the laws administered by OFAC. “Application” is defined in Section 2.1(c)(i). “ATM Facility” means that certain Form S-3 shelf registration statement and prospectus supplement with respect to Parent Borrower’s shares filed by Parent Borrower with the United States Securities and Exchange Commission providing for a so-called “shelf registration” of up to $75 million of shares of Parent Borrower’s Class A common stock, as may be amended from time to time. “Availability Amount” means, at any time, an amount equal to (a) the Revolving Line, minus (b) the outstanding aggregate principal balance of all Advances at such time, minus (c) the Ancillary Services Usage at such time. “Bank Expenses” means all: (a) reasonable and documented out-of-pocket costs or expenses (including reasonable and documented out-of-pocket attorneys’ fees and expenses) incurred in connection with the preparation, negotiation, administration, and enforcement of the Loan Documents, (b) reasonable Collateral audit fees, and (c) Bank’s reasonable and documented out-of-pocket attorneys’ fees and expenses incurred in amending, enforcing or defending the Loan Documents (including fees and expenses of appeal), incurred before, during and after an Insolvency Proceeding, whether or not suit is brought. “Blocked Person” means any Person: (a) listed in the annex to, or is otherwise subject to the provisions of, Executive Order No. 13224, (b) a Person owned or controlled by, or acting for or on behalf of, any Person that is listed in the annex to, or is otherwise subject to the provisions of, Executive Order No. 13224, (c) a Person with which Bank is prohibited from dealing or otherwise engaging in any transaction by any Anti-Terrorism Law, (d) a Person that commits, threatens or conspires to commit or supports “terrorism” as defined in Executive Order No. 13224, or (e) a Person that is named a “specially designated national” or “blocked person” on the most current list published by OFAC or other similar list. “Board of Directors” means, with respect to any Person that is a corporation, its board of directors, with respect to any Person that is a limited liability company, its board of managers, board of members or similar governing body, and with respect to any other Person that is another form of a legal entity, such Person’s governing body in accordance with its organizational documents. “Borrower” means, individually and collectively, jointly and severally, the Original Borrower and each Additional Borrower. “Borrower’s Books” means all of Xxxxxxxx’s books and records including: ledgers; records concerning Xxxxxxxx’s assets or liabilities, the Collateral, business operations or financial condition; and all computer programs, or tape files, and the equipment, containing such information.
3 “Business Day” means any day that is not a Saturday, Sunday, or other day on which banks in the State of New York are authorized or required to close. “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 Xxxxx’x Investors Service, Inc.; (c) Bank’s certificates of deposit issued maturing no more than one (1) year after issue; (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 (d) of this definition; and (e) any investments permitted by Parent Borrower’s investment policy, as amended from time to time, provided that such investment policy (and any such amendment thereto) has been approved in writing by Bank. “Cash Management Services” is defined in Section 2.1(b). “Change in Control” means a transaction in which any “person” or “group” (within the meaning of Section 13(d) and 14(d)(2) of the Securities Exchange Act of 1934 as in effect on the date hereof) becomes the “beneficial owner” (as defined in Rule 13d-3 under the Securities Exchange Act of 1934 as in effect on the date hereof), directly or indirectly, of 51.0% or more of shares of all classes of stock entitled to vote in the election of directors, empowering such “person” or “group” to elect a majority of the Board then outstanding of a Loan Party ordinarily of Directors of such Loan Party, who did not have such power before such transaction. “Change in Law” means the occurrence after the date of this Agreement of any of the following: (a) the adoption of or taking effect of any law, rule, regulation or treaty; (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation, or application thereof by any governmental authority; or (c) compliance by Bank with any request, guideline, requirement or directive (whether or not having the force of law) of any governmental authority made or issued after the date of this Agreement; provided that notwithstanding anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements or directives thereunder or issued in connection therewith or in the implementation thereof, and (y) all requests, rules, guidelines, requirements or directives promulgated by Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted, issued or implemented. “Closing Date” means the date of this Agreement. “Code” means the Uniform Commercial Code as in effect from time to time in the State of New York. “Collateral” means the property described on Exhibit A attached hereto. “Collateral Account” means any Deposit Account, Securities Account, or Commodity Account. “Commodity Account” means a “commodity account” as defined in the Code. “Compliance Certificate” means a compliance certificate in substantially the form of Exhibit D attached hereto. “Contingent Obligation” means, as applied to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to (i) any indebtedness, lease (excluding operating leases of real property), dividend, letter of credit or other obligation of another Person; (ii) any obligations with respect to undrawn letters of credit, corporate credit cards, or merchant services issued or provided for the account of that Person; and (iii) all obligations arising under any agreement or arrangement designed to protect such Person against fluctuation in interest rates, currency exchange rates or commodity prices; provided, however, that the term “Contingent Obligation” shall not include endorsements for collection or deposit in the ordinary course of business or customary indemnification obligations. The amount of any Contingent Obligation shall, without duplication of the primary obligation, be deemed to be an amount equal to the stated or determined amount of the primary obligation in respect of which such Contingent Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof
4 Public as determined by Bank in good faith; provided, however, that such amount shall not in any event exceed the maximum amount of the obligations under the guarantee or other support arrangement. “Copyrights” means any and all copyright rights, copyright applications, copyright registrations and like protections in each work or authorship and derivative work thereof. “Credit Extension” means each Advance, initial procurement or amendment of any Ancillary Service under the Ancillary Services Sublimit, or any other extension of credit by Bank for the benefit of Borrower hereunder. “Daily Balance” means the amount of the Obligations owed at the end of a given day. “Default” means any event which with notice or passage of time or both, would constitute an Event of Default. “Deposit Account” means a “deposit account” as defined in the Code, and includes any checking account, savings account, or certificate of deposit. “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, Section 17-220 of the Delaware Revised Uniform Limited Partnership Act for limited partnerships formed under Delaware law, or any analogous action taken pursuant to any other applicable laws or regulations with respect to any corporation, limited liability company, partnership or other entity. “Dollars” or use of the sign “$” means only lawful money of the United States and not any other currency, regardless of whether that currency uses the “$” sign to denote its currency or may be readily converted into lawful money of the United States. “Equipment” means all present and future machinery, equipment, tenant improvements, furniture, fixtures, vehicles, tools, parts and attachments in which Borrower has any interest. “ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the regulations thereunder. “Event of Default” has the meaning assigned in Article 8. “Excluded Accounts” means (a) deposit accounts exclusively used for payroll, payroll taxes, and other employee wage and benefit payments to or for the benefit of any Borrower’s employees holding an aggregate amount across all such accounts of not more than amounts needed for the then-next payroll cycle, and identified to Bank as such and (b) any segregated cash collateral accounts. “FATCA” means Sections 1471 through 1474 of the IRC, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations, official guidance or interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the IRC as of the date of this Agreement (or any amended or successor version described above) and any intergovernmental agreements (or related legislation or official administrative rules or practices) implementing any of the foregoing. “Fiscal Quarter” means each period of three fiscal months, ending on March 31, June 30, September 30 and December 31 of each Fiscal Year. “Fiscal Year” means the fiscal year of Parent Borrower and its Subsidiaries for accounting and tax purposes, ending on December 31 of each year (or such other date as updated by Parent Borrower in accordance with Section 7.2). “Foreign Exchange Reserve Percentage” is defined in Section 2.1(c)(ii).
5 Public “Foreign Subsidiaries” means any direct or indirect Subsidiary of Borrower that is not organized under the laws of the United States, any State thereof or the District of Columbia. “FX Amount” is defined in Section 2.1(c)(ii). “FX Contracts” are defined in Section 2.1(c)(ii). “GAAP” means generally accepted accounting principles in the United States, as in effect from time to time. “Good Faith Deposit” is defined in Section 2.5(c). “Guarantor” is any Person providing a Guaranty in favor of Bank. “Guaranty” and “Guaranty Documents” are defined in Section 8.9. “Indebtedness” means all indebtedness of any kind, including (a) all indebtedness for borrowed money or the deferred purchase price of property or services, including reimbursement and other obligations with respect to surety bonds and letters of credit, (b) all obligations evidenced by notes, bonds, debentures or similar instruments, (c) all capital lease obligations, (d) all Contingent Obligations with respect to Indebtedness described in clauses (a) through (c) of this definition and (e) all obligations arising under or in connection with the Ancillary Services Sublimit, if any. “Indemnified Person” is defined in Section 13.2(a). “Indemnified Tax” means Taxes imposed on or with respect to any payment made by or on account of any obligation of a Borrower to Bank under this Agreement, provided, however, that Indemnified Taxes shall not include any of the following Taxes imposed on or with respect to Bank (or any assignee) or required to be withheld or deducted from a payment to Bank (or any assignee): (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of Bank (or any assignee) being organized under the laws of, or having its principal office or, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) U.S. federal withholding Taxes imposed on amounts payable to or for the account of Bank (or any assignee, as applicable) with respect to an applicable interest under this Agreement pursuant to a law in effect on the date on which (i) Bank (or any assignee) acquires such interest in this Agreement or (ii) Bank (or any assignee) changes its lending office, (c) any withholding Taxes imposed under FATCA, and (d) any Taxes attributable to Bank’s (or any assignee’s, as applicable) failure to comply with Section 2.3(e). “Industrial JV” means Leostella LLC, a Delaware limited liability company. “Industrial JV Equity” means the capital stock or other equity interests of the Industrial JV. “Industrial JV LLCA” means the Second Amended and Restated Limited Liability Company Agreement of the Industrial JV, dated October 30, 2018, as in effect on the Closing Date. “Insolvency Proceeding” means any proceeding commenced by or against any person or entity under any provision of the United States Bankruptcy Code, as amended, or under any other bankruptcy or insolvency law, including assignments for the benefit of creditors, formal or informal moratoria, compositions, extension generally with its creditors, or proceedings seeking reorganization, arrangement, receivership or other relief. “Intellectual Property Collateral” means all of each Loan Party’s right, title, and interest in and to the following: Copyrights, Trademarks and Patents; all trade secrets, all design rights, claims for damages by way of past, present and future infringement of any of the rights included above, all licenses or other rights to use any of the Copyrights, Patents or Trademarks, and all license fees and royalties arising from such use to the extent permitted by such license or rights; all amendments, renewals and extensions of any of the Copyrights, Trademarks or Patents; and all proceeds and products of the foregoing, including without limitation all payments under insurance or any indemnity or warranty payable in respect of any of the foregoing.
6 Public Public “Intelsat/Seahawk Facility” means that certain Amended and Restated Loan and Security Agreement dated as of October 31, 2019, among Intelsat Xxxxxxx Holdings SA, as collateral agent, the lenders from time to time party thereto, Parent Borrower and each other “Co-Borrower” party thereto, as amended, restated, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms of the Intelsat/Seahawk Intercreditor Agreement. “Intelsat/Seahawk Intercreditor Agreement” means that certain Subordination and Intercreditor Agreement dated as of the date hereof between Bank and Intelsat Xxxxxxx Holdings SA on behalf of itself and the other lenders under the Intelsat/Seahawk Facility and acknowledged by Parent Borrower, as amended, restated, amended and restated, supplemented or otherwise modified from time to time. “Inventory” means all inventory in which Borrower has or acquires any interest, including work in process and finished products intended for sale or lease or to be furnished under a contract of service, of every kind and description now or at any time hereafter owned by or in the custody or possession, actual or constructive, of Borrower, including such inventory as is temporarily out of its custody or possession or in transit and including any returns upon any accounts or other proceeds, including insurance proceeds, resulting from the sale or disposition of any of the foregoing and any documents of title representing any of the above, and Xxxxxxxx’s Books relating to any of the foregoing. “Investment” means any beneficial ownership of (including stock, partnership interest or other securities) any Person, or any loan, advance or capital contribution to any Person. “IP Agreement” means that certain Intellectual Property Security Agreement between the Loan Parties and Bank dated as of the Closing Date, as may be amended, modified or restated from time to time. “IRC” means the Internal Revenue Code of 1986, as amended, and the regulations thereunder. “Letter of Credit” and “Letters of Credit” are defined in Section 2.1(c)(i). “Lien” means any mortgage, lien, deed of trust, charge, pledge, security interest or other encumbrance. “Loan Documents” means, collectively, this Agreement and any related schedules, exhibits, certificates and notices, the Perfection Certificate, the Success Fee Agreement, the IP Agreement, any Account Control Agreement, any Ancillary Services Agreement, any Guaranty Documents, the Intelsat/Seahawk Intercreditor Agreement, the Rocket Lab Intercreditor Agreement, any subordination agreement, any guaranty, note or related security agreements executed by any Loan Party, landlord waivers and consents, bailee waivers and consents, any agreement identified therein as a “Loan Document” by Xxxxxxxx and Bank, and any other agreement entered into in connection with this Agreement, all as amended, restated, extended or otherwise modified from time to time. “Loan Party” means a Borrower or a Guarantor. “Material Adverse Effect” means a material adverse effect on (a) the results of business operations, financial condition or prospects of Parent Borrower and its Subsidiaries taken as a whole, (b) the ability of Borrower to repay the Obligations or otherwise perform its obligations under the Loan Documents, (c) the value, perfection, or priority of Bank’s security interests in the Collateral, taken as a whole, or (d) the ability of Bank to enforce any of its rights or remedies with respect to the Obligations. “Negotiable Collateral” means all letters of credit of which Xxxxxxxx is a beneficiary, notes, drafts, instruments, securities, documents of title, and chattel paper, and Xxxxxxxx’s Books relating to any of the foregoing. “NYSE” means the New York Stock Exchange. “Obligations” means all debt, principal, interest, Bank Expenses and other amounts owed to Bank by Borrower pursuant to this Agreement or any other Loan Document, whether absolute or contingent, due or to become due, now existing or hereafter arising, including any interest that accrues after the commencement of an Insolvency Proceeding.
7 Public “OFAC” means the U.S. Department of Treasury Office of Foreign Assets Control. “OFAC Lists” means, collectively, the Specially Designated Nationals and Blocked Persons List maintained by OFAC pursuant to Executive Order No. 13224, 66 Fed. Reg. 49079 (Sept. 25, 2001) and/or any other list of terrorists or other restricted Persons maintained pursuant to any of the rules and regulations of OFAC or pursuant to any other applicable Executive Orders. “Other Connection Taxes” means, with respect to Bank, Taxes imposed as a result of a present or former connection between Bank and the jurisdiction imposing such Tax (other than connections arising solely from Bank having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Credit Extension or Loan Document). “Original Borrower” has the meaning given in the preamble hereto. “Patents” means all patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same. “Patriot Act” is defined in Section 13.9. “Perfection Certificate” is defined in Section 3.1(d). “Permitted Indebtedness” means: (a) Indebtedness of a Loan Party in favor of Bank arising under this Agreement or any other Loan Document or any other Indebtedness incurred in favor of Bank, including any corporate credit cards or reimbursement obligations with respect to letters of credit; (b) Indebtedness existing on the Closing Date and disclosed in the Schedule; (c) Indebtedness secured by a lien described in clause (c) of the defined term “Permitted Liens”, provided (i) such Indebtedness does not exceed the lesser of the cost or fair market value of the equipment financed with such Indebtedness and (ii) such Indebtedness does not exceed One Hundred Thousand Dollars ($100,000) in the aggregate at any given time; (d) Subordinated Debt; (e) Indebtedness that constitutes a Permitted Investment; (f) Indebtedness with respect to surety, indemnity, or appeal bonds and similar obligations in the ordinary course of Borrower’s or its Subsidiaries’ business in an aggregate amount not to exceed Two Hundred Fifty Thousand Dollars ($250,000); (g) customer deposits and advance payments received in the ordinary course of Borrower or any Subsidiary’s business; (h) Indebtedness consisting of guaranties of Permitted Indebtedness; (i) unsecured Indebtedness to trade creditors incurred in the ordinary course of business; (j) Indebtedness incurred as a result of endorsing negotiable instruments received in the ordinary course of business; (k) Indebtedness secured by Xxxxx permitted under clauses (a) and (c) of the definition of “Permitted Liens” hereunder;
8 Public Public (l) unsecured and non-collateralized Indebtedness incurred in connection with corporate credit cards in a principal amount not to exceed Two Hundred Fifty Thousand Dollars ($250,000) in the aggregate at any time outstanding; (m) Indebtedness consisting of accounts payable incurred in the ordinary course of business; (n) Indebtedness incurred under the Intelsat/Seahawk Facility subject to the Intelsat/Seahawk Intercreditor Agreement; (o) Indebtedness incurred under the Rocket Lab Loan Agreement subject to the Rocket Lab Intercreditor Agreement; (p) Indebtedness arising in connection with customary cash management services and from the honoring by a bank or financial institution of a check, draft or similar instrument drawn against insufficient funds, in each case in the ordinary course of business; (q) Indebtedness consisting of reimbursement obligations with respect to letters of credit issued by a financial institution other than Bank in an aggregate amount not to exceed One Million Two Hundred Fifty Thousand Dollars ($1,250,000), to the extent that Bank is unable to provide such letter of credit on commercially reasonable terms and pricing; (r) other Indebtedness not otherwise permitted by Section 7.4 of this Agreement in an amount not to exceed One Hundred Thousand Dollars ($100,000) at any time outstanding; and (s) extensions, refinancings, modifications, amendments and restatements of any items of Permitted Indebtedness (a) through (q) above; provided that the principal amount thereof is not increased (plus the amount of any accrued interest, discounts, commissions, premiums, fees and expenses) or the terms thereof are not modified to impose more burdensome terms upon a Loan Party or its Subsidiary, as the case may be. “Permitted Investment” means: (a) Investments existing on the Closing Date disclosed in the Schedule; (b) Investments consisting of cash and Cash Equivalents; (c) Investments accepted in connection with Transfers permitted by Section 7.1; (d) Investments (i) by a Loan Party in another Loan Party, (ii) by Subsidiaries (other than any Subsidiary that is a Loan Party) in other Subsidiaries or in Loan Party, and (iii) by a Loan Party in Subsidiaries (other than a Loan Party) not to exceed One Hundred Thousand Dollars ($100,000) in the aggregate in any Fiscal Year; (e) Investments consisting of Collateral Accounts (but only to the extent that Parent Borrower or its Subsidiary is permitted to maintain such accounts in accordance with Section 6.8) in which Bank has a first priority perfected security interest (subject to Permitted Liens); (f) Investments consisting of (i) travel advances and employee relocation loans and other employee loans and advances in an aggregate amount not to exceed One Hundred Fifty Thousand Dollars ($150,000) in any Fiscal Year and (ii) loans to employees, officers or directors relating to the purchase of equity securities of Parent Borrower or its Subsidiaries pursuant to employee stock purchase plans or agreements approved by Parent Borrower’s Board of Directors; (g) Investments (including debt obligations) received in connection with the bankruptcy or reorganization of customers or suppliers and in settlement of delinquent obligations of, and other disputes with, customers or suppliers arising in the ordinary course of business;
9 Public (h) Investments consisting of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business; (i) Investments consisting of notes receivable of, or prepaid royalties and other advances, to customers and suppliers who are not Affiliates, in the ordinary course of business; (j) advances, extensions of trade credit or prepayments to suppliers, manufacturers, in each case, in the ordinary course of business or consistent with past or industry practice; (k) Investments permitted by Section 7.3; (l) Investments in connection with Indebtedness permitted under clause (h) of Permitted Indebtedness; (m) Investments in the Industrial JV required pursuant to the organizational documentation of the Industrial JV in an aggregate amount not to exceed Two Hundred Fifty Thousand Dollars ($250,000) in any Fiscal Year; and (n) such other Investments not otherwise permitted above in an aggregate amount not to exceed One Hundred Thousand Dollars ($100,000) per Fiscal Year. “Permitted Liens” means the following: (a) Liens existing on the Closing Date and disclosed in the Schedule or arising under this Agreement or the other Loan Documents or any other Liens in favor of Bank; (b) Liens for Taxes, fees, assessments or other governmental charges or levies, either not delinquent or being contested in good faith by appropriate proceedings, provided the same have no priority over any of Bank’s security interests; (c) Liens (i) upon or in any equipment which was not financed by Bank acquired or held by Parent Borrower or any of its Subsidiaries to secure the purchase price of such equipment or indebtedness incurred solely for the purpose of financing the acquisition of such equipment, or (ii) existing on such equipment at the time of its acquisition, provided that the Lien is confined solely to the property so acquired and improvements thereon, and the proceeds of such equipment; (d) Liens incurred in connection with the extension, renewal or refinancing of the indebtedness secured by Liens of the type described in clauses (a) through (c) above, provided that any extension, renewal or replacement Lien shall be limited to the property encumbered by the existing Lien and the principal amount of the indebtedness being extended, renewed or refinanced does not increase; (e) Liens of carriers, warehousemen, suppliers, or other Persons that are possessory in nature arising in the ordinary course of business so long as such Liens attach only to Inventory, securing liabilities in the aggregate amount not to exceed One Hundred Thousand Dollars ($100,000) and which are not delinquent or remain payable without penalty or which are being contested in good faith and by appropriate proceedings which proceedings have the effect of preventing the forfeiture or sale of the property subject thereto; (f) Liens to secure payment of workers’ compensation, employment insurance, old- age pensions, social security and other like obligations incurred in the ordinary course of business (other than Liens imposed by XXXXX); (g) leases or subleases of real property granted in the ordinary course of Xxxxxxxx’s business (or, if referring to another Person, in the ordinary course of such Person’s business), and leases, subleases, non-exclusive licenses or sublicenses of personal property (other than Intellectual Property) granted in the ordinary course of Xxxxxxxx’s business (or, if referring to another Person, in the ordinary course of such Person’s business), if the leases, subleases, licenses and sublicenses do not prohibit granting Bank a security interest therein;
10 Public Public (h) Liens arising from attachments or judgments, orders, or decrees in circumstances not constituting an Event of Default under Sections 8.4 and 8.7; (i) easements, rights-of-way, restrictions and other similar encumbrances affecting real property which, in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person; (j) Liens in favor of customs or revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods; (k) pledges or deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business; (l) any interest or title of a lessor, licensor or sublessor under any lease, license or sublease entered into by Parent Borrower or any Subsidiary and not interfering in any material respect with the business of Parent Borrower or any Subsidiary and covering only the assets so leased, licensed or subleased; (m) (i) non-exclusive licenses of Intellectual Property granted to third parties in the ordinary course of business and (ii) licenses of Intellectual Property to the Industrial JV and Seahawk; (n) Liens in favor of other financial institutions arising in connection with Parent Borrower and its Subsidiaries’ deposit and/or securities accounts held at such institutions, provided that Bank has a perfected security interest in the amounts held in such deposit and/or securities accounts to the extent required pursuant to Section 6.8; (o) cash collateral securing Indebtedness permitted under clause (q) of Permitted Indebtedness; (p) Liens incurred under the Intelsat/Seahawk Facility subject to the Intelsat/Seahawk Intercreditor Agreement; (q) Liens incurred under the Rocket Lab Loan Agreement subject to the Rocket Lab Intercreditor Agreement; and (r) customary Liens of any bank in connection with statutory, common law and contractual rights of setoff and recoupment with respect to any deposit account or securities account of Borrower, provided that (i) Bank has a first priority perfected security interest in such account and (ii) such account is permitted to be maintained pursuant to Section 6.8. “Permitted Restrictions” means restrictions on Borrower or any Subsidiary in respect of granting a security interest in, or otherwise encumbering, any of its property or any restriction on any Subsidiary from paying dividends or otherwise distributing property to Borrower (a) pursuant to any document or instrument governing Permitted Indebtedness; provided that any such restriction contained therein relates only to the asset securing such Indebtedness; (b) in connection with any Permitted Lien or any document or instrument governing any Permitted Lien; provided that any such restriction contained therein relates only to the asset or assets subject to such Permitted Lien; (c) customary restrictions and conditions contained in asset sale agreements, purchase agreements, acquisition agreements (including by way of merger, acquisition or consolidation) entered into by Borrower or any Subsidiary, solely to the extent in effect pending consummation of such transaction and so long as such restrictions relate only to the assets subject thereto; (d) customary provisions in leases, licenses and other contracts restricting the assignment, subletting or encumbrance thereof; (e) contractual encumbrances or restrictions in effect as of the date hereof and set forth on the Schedule (but shall not apply to any extension or renewal of, or any amendment or modification expanding the scope of, any such restriction or condition); (f) customary provisions in joint venture agreements (and other similar agreements) (provided that such provisions apply only to such joint venture and to equity interests in such joint venture); (g) restrictions on cash or other deposits imposed by customers of Borrower or any Subsidiary under contracts entered into in the ordinary course of business; (h) restrictions under any arrangement with any governmental
11 authority imposed on any Foreign Subsidiary in connection with governmental grants, financial aid, tax holidays or similar benefits or economic interests; and (i) restrictions imposed by applicable law or any applicable rule, regulation, order, license, permit, grant or similar restriction. “Person” means any individual, sole proprietorship, partnership, limited liability company, joint venture, trust, unincorporated organization, association, corporation, institution, public benefit corporation, firm, joint stock company, estate, entity or governmental agency. “Prime Rate” means the rate of interest per annum from time to time published in the money rates section of The Wall Street Journal or any successor publication thereto as the “prime rate” then in effect; provided that, in the event such rate of interest is less than zero, such rate shall be deemed to be zero for purposes of this Agreement; and provided further that if such rate of interest, as set forth from time to time in the money rates section of The Wall Street Journal, becomes unavailable for any reason as determined by Bank, the “Prime Rate” shall mean the rate of interest per annum announced by Bank as its prime rate in effect at its principal office in the State of New York (such Bank announced Prime Rate not being intended to be the lowest rate of interest charged by Bank in connection with extensions of credit to debtors); provided that, in the event such rate of interest is less than zero, such rate shall be deemed to be zero for purposes of this Agreement. Any change in the Prime Rate shall take effect at the opening of business on the day specified in the public announcement of a change in Prime Rate. “Revenue” means, with respect to any period, the revenue of Borrower recognized during such period in accordance with GAAP. “Reg W Affiliate” means an “affiliate” as such term is set forth in Section 23A(b)(1) of the Federal Reserve Act (12 USC 371c) and 12 C.F.R. 223.2. As of the Closing Date, Reg W Affiliates of the Bank include Xxxxxx, Xxxxxxxx & Company, Incorporated; 1919 Investment Counsel, LLC; Stifel Independent Advisors, LLC (fka Century Securities Associates, Inc.); EquityCompass Investment Management, LLC; Xxxxx, Xxxxxxxx & Xxxxx, Inc. (KBW); Xxxxxx Xxxxxx Partners, LLC; Washington Crossing Advisors, LLC; Stifel Bank & Trust; Stifel Trust Company, N.A.; Stifel Trust Company Delaware, N.A.; North Atlantic Capital Management, LLC; InTyce, LLC (Wealth Tracker), and such other affiliates identified in writing by Bank to Parent Borrower. “Reserve Cash” means (a) at all times when the aggregate balance of cash and Cash Equivalents maintained by Parent Borrower and its Subsidiaries is equal to or exceeds Thirty Million Dollars, an amount equal to the lesser of (i) Ten Million Dollars ($10,000,000) and (ii) twenty-five percent (25%) of the aggregate balance of cash and Cash Equivalents maintained by Parent Borrower and its Subsidiaries at any time, (b) at all times when the aggregate balance of cash and Cash Equivalents maintained by Parent Borrower and its Subsidiaries is less than Thirty Million Dollars, an amount equal to the lesser of (i) Five Million Dollars ($5,000,000) and (ii) twenty-five percent (25%) of the aggregate balance of cash and Cash Equivalents maintained by Parent Borrower and its Subsidiaries at any time and (c) at any time the Parent Borrower is exercising the Cure Right in accordance with Section 6.10(c), an amount equal to the lesser of (i) Two Hundred Fifty Thousand Dollars ($250,000) and (ii) twenty-five percent (25%) of the aggregate balance of cash and Cash Equivalents maintained by Parent Borrower and its Subsidiaries at any time. “Responsible Officer” means each of the Chief Executive Officer, the Chief Financial Officer, the General Counsel and the Controller of Borrower. “Restricted Payment” is defined in Section 7.6. “Revolving Facility” means the facility under which Parent Borrower may request Bank to issue Advances, as specified in Section 2.1(a). “Revolving Line” means the commitment of Bank hereunder to make Advances and provide Ancillary Services in an aggregate principal amount of up to Ten Million Dollars ($10,000,000) until June 28, 2024 and, thereafter, Twenty Million Dollars ($20,000,000), as the same may be changed from time to time in accordance with this Agreement. “Revolving Maturity Date” means June 30, 2026.
12 Public “Rocket Lab Intercreditor Agreement” means that certain Intercreditor Agreement by and between Intelsat Xxxxxxx Holdings SA, as lender and as agent for the lenders from time to time party to the Intelsat/Seahawk Facility and Bank, as senior creditors, Rocket Lab USA, Inc., as the subordinated lender and each Borrower party thereto, pursuant to which Rocket Lab USA, Inc., subordinates its security interests in certain Collateral to the senior lenders (subject to the terms set forth therein), as amended, restated, amended and restated, supplemented or otherwise modified from time to time. “Rocket Lab Loan Agreement” means that certain Subordinated Loan and Security Agreement dated November 3, 2023, among Rocket Lab USA, Inc. and each Borrower party thereto, as amended, restated, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms of the Rocket Lab Intercreditor Agreement. “Sanctioned Country” means, at any time, a country or territory which is the subject or target of any Sanctions. “Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, or by the United Nations Security Council, the European Union or any EU member state, (b) any Person operating, organized or resident in a Sanctioned Country or (c) any Person controlled by any such Person. “Sanctions” means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, or (b) the United Nations Security Council, the European Union or His Majesty’s Treasury of the United Kingdom. “Schedule” means the schedule of exceptions attached hereto and approved by Bank, if any. “Seahawk” means Seahawk SPV Investment LLC, a Delaware limited liability company. “Securities Account” means a “securities account” as defined in the Code. “Shares” means one hundred percent (100%) of the issued and outstanding capital stock, membership units, general partnership interest or other securities owned or held of record by Parent Borrower in any Subsidiary of Parent Borrower. “Subordinated Debt” means any debt incurred by Borrower that is subordinated to the debt owing by Borrower to Bank on terms reasonably acceptable to Bank (and identified as being such by Borrower and Bank). “Subsidiary” means any corporation, company or partnership in which (i) any general partnership interest or (ii) more than fifty percent (50%) of the capital stock, membership units or other securities which by the terms thereof has the ordinary voting power to elect the Board of Directors, managers or trustees of the entity, at the time as of which any determination is being made, is owned by Borrower, either directly or through an Affiliate. “Success Fee” is defined in the Success Fee Agreement. “Success Fee Agreement” means that certain Success Fee Agreement entered into by Borrower and Bank dated as of the Closing Date. “Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any governmental authority, including any interest, additions to tax or penalties applicable thereto. “Trademarks” means any trademark and servicemark rights, whether registered or not, applications to register and registrations of the same and like protections, and the entire goodwill of the business of Borrower connected with and symbolized by such trademarks. 1.2 Accounting Terms. All accounting terms not specifically defined herein shall be construed in accordance with GAAP and all calculations made hereunder shall be made in accordance with GAAP,
25 Accounts maintained with Bank (other than Excluded Accounts) and its Affiliates and other domestic Collateral Accounts so long as such Collateral Accounts are subject to an Account Control Agreement. (c) Cure Right. Notwithstanding anything to the contrary contained herein, in the event Borrower fails to comply with the requirements of Section 6.10(b) at any time (any such day, a “Test Date”), during the period beginning on the first day following the Test Date until the expiration of the ninetieth (90th) day after the Test Date (the “Anticipated Cure Deadline”), Parent Borrower shall have the right to issue capital stock (which, if other than common Equity Interests, shall be in a form reasonably acceptable to Bank), incur Subordinated Debt or obtain a contribution to its common equity (the “Cure Right”), and upon receipt by Parent Borrower of such cash (the “Cure Amount”), pursuant to the exercise by Parent Borrower of such Cure Right and request to Bank to effect such recalculation, the minimum cash financial covenant shall be recalculated giving effect to the following pro forma adjustments: (i) unrestricted and unencumbered cash and Cash Equivalents shall be increased by an amount equal to the Cure Amount; (ii) immediately after giving effect to the Cure Amount, unrestricted and unencumbered cash and Cash Equivalents maintained in Borrower’s Deposit Accounts with Bank and its Affiliates shall equal an amount of at least one hundred and ten percent (110%) of the Obligations; and (iii) if, after giving effect to the foregoing calculations, Borrower shall then be in compliance with the requirements of Section 6.8(b), Borrower shall be deemed to have satisfied the requirements of Section 6.8(b) as of the relevant Test Date with the same effect as though there had been no failure to comply therewith at such date, and the applicable breach or default of the applicable financial covenant that had occurred shall be deemed cured for the purposes of this Agreement as of the applicable Test Date and shall be deemed to have never existed. Notwithstanding anything herein to the contrary (i) the Cure Amount shall be no greater than the amount required for purposes of causing Borrower to comply with Sections 6.10(b) and 6.10(c)(ii), (ii) the Cure Amount shall not exceed Five Million Dollars ($5,000,000), (iii) the Cure Right shall only be available if the Parent Borrower’s publicly traded capital stock price per share remains above One Dollars ($1.00) as demonstrated to the satisfaction of Bank and (iv) the Cure Amount cannot exceed the net cash proceeds that the Parent Borrower could reasonably receive at such time through its ATM Facility based on applicable volume trading restrictions at the average ten-day closing price of Parent Borrower’s capital stock on the New York Stock Exchange. Upon Bank’s receipt of a notice from Parent Borrower that it intends to exercise the Cure Right (a “Notice of Intent to Cure”), until the Anticipated Cure Deadline to which such Notice of Intent to Cure relates (i) any Default or Event of Default due to the breach of Section 6.10(b) shall be deemed retroactively not to have occurred, subject to the terms and conditions set forth above; provided that (A) until the Cure Amount is made, an Event of Default shall be deemed to exist for purposes of determining compliance with any conditions precedent to the making of any Credit Extensions and any term or provision of any Loan Documents which prohibits any action to be taken by Borrower or its respective Subsidiaries during the existence of an Event of Default and (B) if the Cure Amount is not made before the Anticipated Cure Deadline, such Default or Event of Default shall be deemed reinstated and (ii) Bank shall not exercise the right to accelerate payment of the Obligations and Bank shall not exercise any right to foreclose on or take possession of the Collateral, in each case solely on the basis of an allegation of an Event of Default having occurred and being continuing under Section 6.10(b) due to failure by Borrower to comply with the requirements of the applicable financial covenants as of the applicable Test Date. 6.11 Intellectual Property Rights. (a) Along with the Compliance Certificate delivered pursuant to Section 6.4(a)(x), Parent Borrower shall give Bank written notice of any applications or registrations of intellectual property rights filed with the United States Patent and Trademark Office during the time period covered by such Compliance Certificate, including the date of such filing and the registration or application numbers, if any. Parent Borrower shall (i) give Bank not less than thirty (30) days prior written notice of the filing of any applications or registrations with the United States Copyright Office, including the title of such intellectual property rights to be registered, as such title will appear on such applications or registrations, and the date such applications or registrations will be filed, and (ii) prior to the
33 Public 9.7 Demand; Protest. Borrower waives demand, protest, notice of protest, notice of default or dishonor, notice of payment and nonpayment, notice of any default, nonpayment at maturity, release, compromise, settlement, extension, or renewal of accounts, documents, instruments, chattel paper, and guarantees at any time held by Bank on which Borrower may in any way be liable. 10. NOTICES. All notices, consents, requests, approvals, demands, or other communication by any party to this Agreement or any other Loan Document must be in writing and shall be deemed to have been validly served, given, or delivered: (a) upon the earlier of actual receipt and three (3) Business Days after deposit in the U.S. mail, first class, registered or certified mail return receipt requested, with proper postage prepaid; (b) upon transmission, when sent by electronic mail or facsimile transmission; (c) one (1) Business Day after deposit with a reputable overnight courier with all charges prepaid; or (d) when delivered, if hand-delivered by messenger, all of which shall be addressed to the party to be notified and sent to the address, facsimile number, or email address indicated below. Bank or Borrower may change its mailing or electronic mail address or facsimile number by giving the other party written notice thereof in accordance with the terms of this Section 10. If to Borrower: c/o BLACKSKY TECHNOLOGY INC. 00000 Xxxxxxxx Xxxx Xxxx Xxxxxxx, XX 00000 Attn: General Counsel EMAIL: xxxxx@xxxxxxxx.xxx With a copy (which shall not constitute notice) to: If to Bank: With a copy (which shall not constitute notice) to: Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx PC Xxx Xxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxx 000 Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 Attn: Xxxxxx Xxxxxxxx EMAIL: xxxxxxxxx@xxxx.xxx STIFEL BANK 000 Xxxxx Xxxxxxxx Xx. Xxxxx, Xxxxxxxx 00000 Attn: Legal Department STIFEL BANK 000 0xx Xxxxxx 00xx Xxxxx Xxx Xxxx, XX 00000 Attn: Xxxxxxx Xxxxx EMAIL: xxxxxx@xxxxxxxxxx.xxx The parties 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. 11. GOVERNING LAW. This Agreement shall be deemed to have been made under and shall be governed by the laws of the State of New York (without regard to choice of law principles except as set forth in Section 5-1401 of the New York General Obligations Law) in all respects, including matters of construction, validity and performance, and that none of its terms or provisions may be waived, altered, modified or amended except as Bank may consent thereto in writing duly signed for and on its behalf. 12. JURISDICTION AND JURY TRIAL WAIVER. 12.1 Borrower hereby irrevocably consents that any suit, legal action or proceeding against borrower or any of its properties with respect to any of the rights or obligations arising directly or indirectly under or relating to this Agreement or any other Loan Document may be brought in any jurisdiction, including, without limitation, any New York state or United States Federal Court located in the southern district of New York, as Bank may elect, and by execution and delivery of this Agreement, Borrower hereby irrevocably submits to and accepts with regard to any such suit, legal action or proceeding, for itself and in respect of its property, generally and
34 unconditionally, the jurisdiction of the aforesaid courts. Borrower hereby irrevocably consents to the service of process in any such suit, legal action or proceeding by the mailing of copies thereof by registered or certified mail, postage prepaid, return receipt requested, to borrower at its address set forth herein. The foregoing shall not limit the right of Bank to serve process in any other manner permitted by law or to bring any suit, legal action or proceeding or to obtain execution of judgment in any other jurisdiction. 12.2 Borrower hereby irrevocably waives any objection which borrower may now or hereafter have to the laying of venue of any suit, legal action or proceeding arising directly or indirectly under or relating to this Agreement or any other Loan Document in any state or federal court located in any jurisdiction, including without limitation, any state or federal court located in the southern district of New York chosen by Bank in accordance with this Section 12 and hereby further irrevocably waives any claim that a court located in the southern district of New York is not a convenient forum for any such suit, legal action or proceeding. 12.3 Borrower hereby irrevocably agrees that any suit, legal action or proceeding commenced by Borrower with respect to any rights or obligations arising directly or indirectly under or relating to this Agreement or any other Loan Document (except as expressly set forth therein to the contrary) shall be brought exclusively in any New York state or United States Federal Court located in the southern district of New York. 12.4 Borrower hereby waives any defense or claim based on marshaling of assets or election or remedies or guaranties. 12.5 Borrower and Bank (by its entry into this Agreement) hereby irrevocably waive all right to trial by jury in any action, proceeding or counterclaim arising out of or relating to any obligation of Borrower or this Agreement or any other Loan Document. 13. GENERAL PROVISIONS. 13.1 Successors and Assigns. (a) This Agreement shall bind and inure to the benefit of the respective successors and permitted assigns of each of the parties; provided, however, that neither this Agreement nor any rights hereunder may be assigned by Xxxxxxxx without Bank’s prior written consent, which consent may be granted or withheld in Bank’s sole discretion. Bank shall have the right without the consent of or notice to Borrower to sell, transfer, negotiate, or grant participation in all or any part of, or any interest in, Bank’s obligations, rights and benefits hereunder to any Person, except so long as no Default or Event of Default has occurred and is continuing, any competitor of Borrower or any “vulture fund” or investor specializing in distressed debt. (b) Xxxxxxxx agrees that any assignee or participant shall be entitled to the benefits of Sections 2.3 and 13.11 to the same extent as if it were Bank; provided, no assignee or participant shall be entitled to the benefits of Section 2.3 unless such assignee or participant agrees, for the benefit of the Loan Parties, to comply with Section 2.3 as though it were Bank (it being understood that any documentation required under Sections 2.3 shall be delivered to the assignee or participant, as applicable). (c) The ownership of an interest in, and the right to the principal of, and stated interest on, the Advances and other obligations under any Loan Document shall be registered on a record of ownership maintained by Xxxxxxxx (the “Register”), and the transfer of any participation in the Advances and other obligations under any Loan Document shall be registered on a record of ownership maintained by Bank (the “Participation Register”). Notwithstanding anything else in this Agreement to the contrary, the entries in the Register and the Participation Register shall be conclusive absent manifest error, and Borrower shall be entitled to treat Bank and any assignee (as recorded in the Register) or the owner of such participation in the Advances and other obligations (as recorded in the Participation Register) under any Loan Document as the owner or participant in such interest, as applicable. The foregoing language is intended to cause the Advances, and any assignments and participation thereof, to be in “registered form” as defined in Sections 163(f), 871(h)(2) and 881(c)(2) of the IRC and Treasury Regulations Sections 5f.103-1(c) and 1.871-14(c) and shall be interpreted and applied consistently therewith. 13.2 Indemnification.
38 BY SIGNING THIS DOCUMENT EACH PARTY TO THIS AGREEMENT REPRESENTS AND AGREES THAT: (A) THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN ALL PARTIES TO THIS AGREEMENT, (B) THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES TO THIS AGREEMENT, AND (C) THIS WRITTEN AGREEMENT MAY NOT BE CONTRADICTED BY EVIDENCE OF ANY PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OR UNDERSTANDINGS OF ANY OF THE PARTIES TO THIS AGREEMENT. [Balance of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first above written. BLACKSKY TECHNOLOGY INC. By: /s/ Xxxxx Xxxxxx Name: Xxxxx Xxxxxx Title: Chief Financial Officer BLACKSKY HOLDINGS, INC. By: /s/ Xxxxx Xxxxxx Name: Xxxxx Xxxxxx Title: Treasurer and Chief Financial Officer BLACKSKY GEOSPATIAL SOLUTIONS, INC By: /s/ Xxxxx Xxxxxx Name: Xxxxx Xxxxxx Title: Treasurer and Chief Financial Officer BLACKSKY GLOBAL LLC By: /s/ Xxxxx Xxxxxx Name: Xxxxx Xxxxxx Title: Treasurer SFI IP HOLDCO, LLC By: /s/ Xxxxx Xxxxxx Name: Xxxxx Xxxxxx Title: Chief Financial Officer of BlackSky Holdings, Inc. its Sole Member BLACKSKY INTERNATIONAL LLC By: /s/ Xxxxx Xxxxxx Name: Xxxxx Xxxxxx Title: Treasurer and Chief Financial Officer of BlackSky Holdings, Inc. its Managing Member [Signature Page to Loan and Security Agreement]
BUILDING 5 LLC By: /s/ Xxxxx Xxxxxx Name: Xxxxx Xxxxxx Title: Chief Financial Officer [Signature Page to Loan and Security Agreement]
STIFEL BANK By: /s/ Xxxxx X. Xxxx Name: Xxxxx X. Xxxx Title: Executive Vice President [Signature Page to Loan and Security Agreement]
A-1 EXHIBIT A DEBTOR: BLACKSKY TECHNOLOGY INC. BLACKSKY HOLDINGS, INC. BLACKSKY GEOSPATIAL SOLUTIONS, INC. BLACKSKY GLOBAL LLC SFI IP HOLDCO, LLC BLACKSKY INTERNATIONAL LLC BUILDING 5 LLC SECURED PARTY: STIFEL BANK COLLATERAL DESCRIPTION ATTACHMENT TO LOAN AND SECURITY AGREEMENT All personal property of Borrower (herein referred to as “Borrower” or “Debtor”) whether presently existing or hereafter created or acquired, and wherever located, including, but not limited to: (a) all accounts (including health-care-insurance receivables), chattel paper (including tangible and electronic chattel paper), deposit accounts, documents (including negotiable documents), equipment (including all accessions and additions thereto), general intangibles (including payment intangibles and software), goods (including fixtures), instruments (including promissory notes), inventory (including all goods held for sale or lease or to be furnished under a contract of service, and including returns and repossessions), investment property (including securities and securities entitlements), letter of credit rights, money, and all of Debtor’s books and records with respect to any of the foregoing, and the computers and equipment containing said books and records; (b) any and all cash proceeds and/or noncash proceeds of any of the foregoing, including, without limitation, insurance proceeds, and all supporting obligations and the security therefor or for any right to payment. All terms above have the meanings given to them in the New York Uniform Commercial Code, as amended or supplemented from time to time. Notwithstanding the foregoing, the term “Collateral” shall not include (i) any Equipment not financed by Bank or rights of Borrower as a licensee to the extent the granting of a security interest therein (A) would be contrary to applicable law or (B) is prohibited by or would constitute a default under any agreement or document governing such property (but only to the extent such prohibition is enforceable under applicable law); provided that upon the termination or lapsing of any such prohibition, such property shall automatically be part of the Collateral, (ii) governmental licenses, state or local franchises, charters and authorizations and any other property and assets to the extent that the Bank may not validly possess a security interest therein under, or such security interest is restricted by, applicable Laws (including, without limitation, rules and regulations of any governmental authority or agency) or the pledge or creation of a security interest in which would require governmental consent, approval, license or authorization, other than to the extent such prohibition or limitation is rendered ineffective under the UCC or other applicable Law notwithstanding such prohibition (but excluding proceeds of any such governmental license), or otherwise require consent thereunder (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law), (iii) any lease, license, contract, document, franchise, charter, authorization or other agreement, and any rights or interests thereunder and any property subject thereto, if the grant of a security interest therein shall constitute or result in a breach, termination or default or invalidity thereunder or thereof (other than to the extent that such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC of any relevant jurisdiction or any other applicable law), (iv) Excluded Accounts, (v) voting stock of any Foreign Subsidiary of any Loan Party (other than stock representing up to 65% of the total combined voting power of all outstanding classes of stock entitled to vote (within the meaning of Section 1.965-2(c)(2) of the Treasury Regulations) or such greater percentage that, due to a change in applicable law after the date hereof, (1) could not reasonably be expected to cause the undistributed earnings of such Foreign Subsidiary as determined for U.S. federal income tax purposes to be treated as a deemed dividend to such Foreign Subsidiary’s U.S. parent and (2) could not reasonably be expected to cause any material adverse tax consequence); and provided further that the provisions of this paragraph shall in no case exclude from the definition of “Collateral” any Accounts, proceeds of the disposition of any property, or general intangibles consisting of rights to payment, all of which shall at all times constitute “Collateral”; and provided further that any Equipment financed by Bank will at all times constitute “Collateral”, (vi) the Industrial JV Equity, but only to the
A-2 extent that, and solely during the period in which, the grant of a security interest therein and the pledge thereof as Collateral hereunder would constitute a “Third Party Transfer” (as defined in the Industrial JV LLCA); provided, however, that (notwithstanding the foregoing) upon the occurrence of an Event of Default and at Bank’s election (in its sole and absolute discretion) all of the Industrial JV Equity shall immediately and automatically constitute and be deemed to be “Collateral” without any further action by, or notice to, any Person required, and thereafter Borrower shall, and shall cause its Subsidiaries to, take any and all acts and actions necessary to evidence and effect the grant, attachment and perfection of any and all Liens and other security interests in favor of Bank on and in such Industrial JV Equity or as otherwise required by Bank in furtherance thereof (including, without limitation, the prompt (but in any event within three (3) Business Days thereof) delivery to Bank of the hardcopy originals of any and all stock certificates or other instruments or writings evidencing such Industrial JV Equity, along with accompanying transfer powers signed in blank), or (vii) any United States intent-to-use trademark or service mark application to the extent that, and solely during the period in which, the grant of a security interest therein would impair the validity or enforceability of such intent-to-use trademark or service mark application under United States federal law; provided, however, after such period, each Loan Party acknowledges that such interest in such trademark or service mark application shall be subject to a security interest in favor of Bank and shall be included in the Collateral.