Form 8-K - Current report
December 22 2023 - 5:22PM
Edgar (US Regulatory)
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0000836690
2023-12-19
2023-12-19
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
The Securities
Exchange Act of 1934
Date of Report (Date of earliest event reported):
December 19, 2023
INNOVATIVE SOLUTIONS AND SUPPORT, INC.
(Exact name of registrant as specified in its
charter)
Pennsylvania |
0-31157 |
23-2507402 |
(State or Other Jurisdiction
of Incorporation) |
(Commission
File Number) |
(IRS Employer
Identification No.) |
720 Pennsylvania Drive
Exton, Pennsylvania 19341
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code
(610) 646-9800
Not applicable |
(Former name or former address, if changed since last report) |
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨ Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨ Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨ Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
Title
of each class |
Trading
Symbol(s) |
Name
of each exchange on which registered |
Common Stock, par value $0.001 per share |
ISSC |
Nasdaq
Stock Market LLC |
Indicate by check mark whether the registrant is an emerging growth
company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities
Exchange Act of 1934 (§ 240.12b-2 of this chapter).
Emerging
growth company. ¨
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for
complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
| Item 1.01. | Entry into a Material Definitive Agreement. |
On
December 19, 2023, Innovative Solutions and Support, Inc. (the “Company”) and PNC Bank, National
Association (“PNC”) entered into an Amendment to Loan Documents (the “Loan Amendment”) and a corresponding
Amended and Restated Revolving Line of Credit Note (“Restated Line of Credit Note”) and Amended and Restated Line of
Credit and Investment Sweep Rider (the “Restated Rider”), to increase the aggregate principal amount available under
the Company’s senior secured revolving line of credit from $10,000,000 to $30,000,000 and extend the maturity date until December 19,
2028. The proceeds of the Restated Line of Credit Note will be used for working capital and other general corporate purposes, for acquisitions
as permitted under the Loan Amendment, and to pay off and close the loan evidenced by that certain Term Note executed in favor of PNC,
dated June 28, 2023, which provides for a senior secured term loan in an aggregate principal amount of $20,000,000, with a maturity
date of June 28, 2023.
The interest rate applicable to loans outstanding
under the Restated Line of Credit is a rate per annum equal to the sum of (A) Daily SOFR (as defined in the Restated Line of Credit
Note) plus (B) an unadjusted spread of Applicable SOFR Margin (as defined in the Restated Line of Credit Note) plus (C) a SOFR
adjustment of ten basis points. The Applicable SOFR Margin ranges from 1.5% to 2.5% depending on the Company’s funded debt to EBITDA
ratio.
The foregoing descriptions of the Loan Amendment,
Restated Line of Credit Note and Restated Rider do not purport to be complete and are qualified in their entirety by reference to the
full text of the Loan Amendment, Restated Line of Credit Note and Restated Rider, which are filed as Exhibit 10.1, Exhibit 10.2
and Exhibit 10.3, respectively, to this Current Report on Form 8-K and are incorporated herein by reference.
| Item 2.03 | Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. |
The
information set forth in Item 1.01 of this Current Report on Form 8-K is incorporated herein by reference.
| Item 9.01. | Financial Statements and Exhibits. |
(d) Exhibits.
Exhibit No. |
Description |
10.1* |
Amendment to Loan Documents, dated December 19, 2023, by and among Innovative Solutions and Support, Inc., Innovative Solutions and Support, LLC, and PNC Bank, National Association |
10.2* |
Amended and Restated Revolving Line of Credit, dated December 19, 2023, executed by Innovative Solutions and Support, Inc. and Innovative Solutions and Support, LLC |
10.3* |
Amended and Restated Line of Credit and Investment Sweep Rider, dated December 19, 2023, by and among Innovative Solutions and Support, Inc., Innovative Solutions and Support, LLC, and PNC Bank, National Association |
104 |
Cover Page Interactive Data File (embedded within the Inline XBRL document). |
*Schedules
and exhibits have been omitted pursuant to Item 601(a)(5) of Regulation S-K. The Company will furnish supplementally
a copy of any omitted schedule or exhibit to the Securities and Exchange Commission upon request.
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly
authorized.
|
INNOVATIVE SOLUTIONS AND SUPPORT, INC. |
|
|
|
Date: December 22, 2023 |
By: |
/s/ Relland M Winand |
|
|
Relland M Winand |
|
|
Chief Financial Officer |
Exhibit
10.1 | Amendment to Loan Documents 0PNC
THIS AMENDMENT TO LOAN DOCUMENTS (this "Amendment") is made as of December Jf/____,
2023 by and between INNOVATIVE SOLUTIONS AND SUPPORT, INC., a Pennsylvania corporation, and
INNOVATIVE SOLUTIONS AND SUPPORT, LLC, a Pennsylvania limited liability company (jointly and
severally, individually and collectively, the "Borrower"), and PNC BANK, NATIONAL ASSOCIATION (the
"Bank").
BACKGROUND
A. The Bmrnwer or another obligor has executed and delivered to the Bank ( or a predecessor which
is now known by the Bank's name as set forth above), one or more promissory notes, letter agreements, loan
agreements, security agreements, mortgages, pledge agreements, collateral assignments, and other agreements,
instruments, certificates and documents, some or all of which are more fully described on attached Exhibit A, which
is made a pmt of this Amendment ( collectively as amended from time to time, the "Loan Documents") which
evidence or secure some or all of the indebtedness and other obligations of the Bonower to the Bank for one or
more loans or other extensions of credit ( as used herein, collectively, together with the Obligations, if and as defined
in the Loan Documents, the "Obligations"). Any initially capitalized tenns used in this Amendment without
definition shall have the meanings assigned to those tenns in the Loan Documents.
B. The Borrower and the Bank desire to amend the Loan Documents as provided for in this
Amendment.
NOW, THEREFORE, in consideration of the mutual covenants herein contained and intending to be
legally bound hereby, the pmties hereto agree as follows:
I. Ceitain of the Loan Documents are amended as set forth in Exhibit A. Any and all references to
any Loan Document in any other Loan Document shall be deemed to refer to such Loan Document as amended by
this Amendment. This Amendment is deemed incorporated into each of the Loan Documents. To the extent that
any tenn or provision of this Amendment is or may be inconsistent with any tenn or provision in any Loan
Document, the tenns and provisions of this Amendment shall control.
2. The Borrower hereby ce1tifies that: (a) all of its representations and warranties in the Loan
Documents, as amended by this Amendment, are, except as may otherwise be stated in this Amendment: (i) true
and cmrnct as of the date of this Amendment, (ii) ratified and confitmed without condition as if made anew, and
(iii) incorporated into this Amendment by reference, (b) no Event of Default or event which, with the passage of
time or the giving of notice or both, would constitute an Event of Default, exists under any Loan Document which
will not be cured by the execution and effectiveness of this Amendment, ( c) no consent, approval, order or
authorization of, or registration or filing with, any third party is required in connection with the execution, delivery
and canying out of this Amendment or, if required, has been obtained, and ( d) this Amendment has been duly
authorized, executed and delivered so that it constitutes the legal, valid and binding obligation of the Bmrnwer,
enforceable in accordance with its terms. The Borrower confirms that the Obligations remain outstanding without
defense, set off, counterclaim, discount or charge of any kind as of the date of this Amendment.
3. The Borrower hereby confitms that any collateral for the Obligations, including liens, security
interests, mmtgages, and pledges granted by the Borrower or third patties (if applicable), shall continue unimpaired
and in full force and effect, and shall cover and secure all of the Borrower's existing and future Obligations to the
Bank, as modified by this Amendment.
4. As a condition precedent to the effectiveness of this Amendment, the Borrower shall comply with
the terms and conditions (if any) specified in Exhibit A.
Form 17 A- Multistate Rev. 8/23
123961765-3 |
| 5. To induce the Bank to enter into this Amendment, the Bon-ower waives and releases and forever
discharges the Bank and its officers, directors, attorneys, agents, and employees from any liability, damage, claim,
loss or expense of any kind that it may have against the Bank or any of them arising out of or relating to the
Obligations. The Borrower further agrees to indemnify and hold the Bank and its officers, directors, attorneys,
agents and employees harmless from any loss, damage, judgment, liability or expense (including attorneys' fees)
suffered by or rendered against the Bank or any of them on account of any claims arising out of or relating to the
Obligations. The Borrower fmther states that it has carefully read the foregoing release and indemnity, knows the
contents thereof and grants the same as its own free act and deed.
6. This Amendment may be signed in any number of counterpart copies and by the parties to this
Amendment on separate counterpatts, but all such copies shall constitute one and the same instrument. Delivery of
an executed counterpatt of a signature page to this Amendment by facsimile transmission shall be effective as
delive1y of a manually executed counterpa1t. Upon written request by the other party (which may be made by
electronic mail), any patty so executing this Amendment by facsimile transmission shall promptly deliver a
manually executed counterpatt, provided that any failure to do so shall not affect the validity of the counterpart
executed by facsimile transmission.
7. Notwithstanding any other provision herein or in the other Loan Documents, the Borrower agrees
that this Amendment, the Loan Documents, any other amendments thereto and any other infonnation, notice,
signature card, agreement or authorization related thereto ( each, a "Communication") may, at the Bank's option,
be in the form of an electronic record. Any Communication may, at the Bank's option, be signed or executed using
electronic signatures. For the avoidance of doubt, the authorization under this paragraph may include, without
limitation, use or acceptance by the Bank of a manually signed paper Communication which has been conveited
into electronic form (such as scanned into PDF format) for transmission, delive1y and/or retention. The Borrower
and the Bank acknowledge and agree that the methods for delivering Communications, including notices, under the
Loan Documents include electronic transmittal to any electronic address provided by either patty to the other party
from time to time.
8. The Bank may modify this Amendment for the purposes of completing m1Ss111g content or
cmTecting erroneous content, without the need for a written amendment, provided that the Bank shall send a copy
of any such modification to the Bon-ower (which notice may be given by electronic mail).
9. This Amendment will be binding upon and inure to the benefit of the Borrower and the Bank and
their respective heirs, executors, administrators, successors and assigns.
I 0. This Amendment will be interpreted and the rights and liabilities of the patties hereto dete1mined
in accordance with the laws of the State identified in and goveming the Loan Documents that are being amended
hereby (the "State"), excluding its conflict of laws rules, including without limitation the Electronic Transactions
Act (or equivalent) in such State (or, to the extent controlling, the laws of the United States of America, including
without limitation the Electronic Signatures in Global and National Commerce Act). This Amendment has been
delivered to and accepted by the Bank and will be deemed to be made in the State.
11. Except as amended hereby, the terms and provisions of the Loan Documents remain unchanged,
are at1d shall remain in foll force and effect unless and until modified or amended in writing in accordance with
their terms, and are hereby ratified and confirmed. Except as expressly provided herein, this Amendment shall not
constitute an amendment, waiver, consent or release with respect to any provision of any Loan Document, a waiver
of any default or Event of Default under any Loan Document, or a waiver or release of any of the Bank's rights and
remedies (all of which are hereby reserved). The Borrower expressly ratifies and confirms the dispute
resolution, waiver of jury trial or arbitration provisions, as applicable, contained in the Loan Documents, all
of which are incorporated herein by reference.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
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123961765-3 |
| WITNESS the due execution of this Amendment as a document under seal as of the date first written above.
SOLUTIONS AND SUPPORT, INC.
PNC BANK, NATIONAL ASSOCIATION
( l 1·1 ' 11 1· . ,,. , I ··! • . •
By: l,,/·····J 1;1 . ;L; / &i! ' ·(SEAL)
J~h1. DiNapoli, Senior Vice tesi' ent
(/ '
- 3 -
Form 17A-Mnltistate Rev. 8/23
123961765-3 |
| A.
EXHIBIT A TO
AMENDMENT TO LOAN DOCUMENTS
INNOVATIVE SOLUTIONS AND SUPPORT, INC. AND
INNOVATIVE SOLUTIONS AND SUPPORT, LLC
DATED AS OF DECEMBER 4, 2023
Loan Documents. The Loan Documents that are the subject of this Amendment include the following (as
each of such documents has been amended, modified or othe1wise supplemented previously):
I. Loan Agreement dated May 11, 2023, as amended by the Amendment to Loan Documents dated
June 28, 2023 and the Amendment to Loan Documents dated August 11, 2023 (collectively, the
"Loan Agreement")
2. $10,000,000 Revolving Line of Credit Note dated May 11, 2023 (the "Existing Line of Credit
Note")
3. Line of Credit and Investment Sweep Rider May 11, 2023 (the "Existing Sweep Rider")
4. Security Agreements dated May 11, 2023 executed by Bank and by Innovative Solutions and
Suppmt, Inc., Innovative Solutions and Support, LLC, IS&S Delaware, Inc. and IS&S Holdings,
Inc.
5. Guaranty and Suretyship Agreements dated May 11, 2023 executed by IS&S Delaware, Inc. and
IS&S Holdings, Inc.
6. Reimbursement Agreement for Letters of Credit dated May 11, 2023
7. $20,000,000 Te1m Note dated June 28, 2023 (the "Term Note")
8. All other documents, instruments, agreements, and certificates executed and delivered in
co1111ection with the Loan Documents listed in this Section A.
B. Restated Line of Credit Note. Concurrently with the execution and deliveiy of this Amendment, the
Borrower shall execute and deliver to the Bank an amended and restated Revolving Line of Credit Note
(the "Restated Line of Credit Note"), in fonn and substance satisfacto1y to the Bank. Upon receipt by the
Bank of the Restated Line of Credit Note, all references to the Existing Line of Credit Note in any
documents relating thereto, howsoever named, shall thereafter be deemed to refer to the Restated Line of
Credit Note. The proceeds of the Restated Line of Credit Note will be used in part to pay off and close the
loan evidenced by the Te1m Note.
C. Restated Sweep Rider. Concurrently with the execution and delivery of this Amendment, the Borrower
shall execute and deliver to the Bank an amended and restated Line of Credit and Investment Sweep Rider
(the "Restated Sweep Rider"), in fonn and substance satisfacto1y to the Bank. Upon receipt by the Bank
of the Restated Sweep Rider, all references to the Existing Sweep Rider in any documents relating thereto,
howsoever named, shall thereafter be deemed to refer to the Restated Sweep Rider.
D. Amendments. The Loan Documents are amended as follows:
1. Section 1.1 of the Loan Agreement is hereby amended and restated in its entirety to read as follows:
"1.1 Line of Credit. One of the Loans governed by this Agreement is a committed
revolving line of credit under which the Borrower may request and the Bank,
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123961765-3 |
| subject to the terms and conditions of this Agreeme11t, will make advances to the
Borrower from time to time until the Expiration Date, in an aggregate amount
outstanding at any time not to exceed $30,000,000.00 (the "Line of Credit"). The
"Expiration Date" shall have the meaning set forth in the note evidencing the Line
of Credit. The Borrower acknowledges and agrees that in no event will the Bank
be under any obligation to extend or renew the Line of Credit beyond the
Expiration Date. In no event shall the aggregate unpaid principal amount of
advances under the Line of Credit exceed the maximum amount of the Line of
Credit. All advances and other credit extensions under the Line of Credit will be
used for working capital or other general business purposes of the Borrower, to
pay off the Term Loan, and Acquisitions permitted by Section 5.8 below."
2. Section 1.2 of the Loan Agreement is hereby deleted in its entirety effective as of the date of the
payoff and closing of the Term Loan with the proceeds evidenced by the Restated Line of Credit
Note.
3. Section 5.8 of the Loan Agreement is hereby amended and restated in its entirety to read as follows:
"5.8 Acquisitions. Make acquisitions of all or substantially all of the property,
assets or equity of any person, finn, corporation or other entity ("Acquisitions");
provided, however:
(i) During the five (5) year period commencing on the date of this
Agreement Bmrnwer may make, without the Bank's prior written consent, up to
three (3) Acquisitions with consideration of less than $10,000,000.00 each;
provided that prior to closing Boffower demonstrates to Bank: (i) a ratio of Funded
Debt to EBITDA, calculated on a proforma basis after the Acquisition, ofless than
2.5 to 1.0; and (ii) liquidity from cash and availability under the Line of Credit,
calculated on a pro fmma basis after the Acquisition, of not less than
$10,000,000.00.
(ii) Borrower may make Acquisitions with consideration of more than
$10,000,000.00 with the Bank's prior' written consent, which shall not be
unreasonably withheld or conditioned."
4. Section (1) of Section 4.8 of the Addendum to the Loan Agreement is hereby deleted and replaced
with the following:
"(I) The Borrower will maintain at all times a ratio of Funded Debt to EBITDA
ofless than 3.0 to 1, to be measured quaiterly commencing with the quaiter ended
December 31, 2023."
5. The following two provisions are hereby added to the Loan Agreement:
"Beneficial Owners. If the BmTower is or was required to execute and deliver to
the Bank a Certification of Beneficial Owner(s) (individually and collectively, as
updated from time to time, the "Certification of Beneficial Owners"), the
Borrower hereby represents and warrants that the infonnation in the Certification
of Beneficial Owners, as updated from time to time in accordance with this
Agreement, is true, complete and correct as of the date thereof, as of the date hereof
and as of the date any such update is delivered to the Bank. The Borrower
acknowledges and agrees that the Ce1tification of Beneficial Owners is a Loan
Document."
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123961765-3 |
| "Certification of Beneficial Owners and Other Additional Information. The
Borrower agrees that until all Obligations have been paid in full and any
commitments of the Bank to the Bmrnwer have been terminated, the Bmrnwer will
provide: (i) such information and documentation as may reasonably be requested
by the Bank from time to time for purposes of compliance by the Bank with
applicable laws (including without limitation the USA Patriot Act and other "know
your customer" and anti-money laundering rules and regulations), and any policy
or procedure implemented by the Bank to comply therewith and (ii) if the Borrower
is or was required to deliver a Cettification of Beneficial Owners to the Bank, (a)
confirmation of the accuracy of the information set forth in the most recent
Certification of Beneficial Owners provided to the Bank, as and when requested
by the Bank; and (b) a new Ceitification of Beneficial Owners in fmm and
substance acceptable to the Bank when the individual( s) identified as a controlling
party and/or a direct or indirect individual owner on the most recent Cettification
of Beneficial Owners provided to the Bank have changed."
6. The following representations, warranties, covenants, and agreements regarding Anti-Corruption
Laws, International Trade Laws and Anti-Money Laundering Laws, together with the following
related definitions, are hereby added to the Loan Agreement ( or, alternatively, hereby replace any
prior provisions in the Loan Agreement regarding such subject matter) and will control to the extent
of any inconsistency between any of the following provisions and any provision in any Note
regarding such matters:
123961765-3
"Anti-Corruption Laws and International Trade Laws; Anti-Money
Lanndering Laws; Certain Definitions.
Representations and Warranties. The Borrower hereby makes the
following representations and warranties, which shall be continuing in nature and
remain in full force and effect until the Obligations are paid in full:
Each Covered Entity, and its directors and officers, and each employee, agent or
affiliate acting on behalf of such Covered Entity: (a) is not a Sanctioned Person;
(b) does not do any business in or with, or derive any of its operating income from
direct or indirect investments in or transactions involving, any Sanctioned
Jurisdiction or Sanctioned Person; and ( c) is not in violation of, and has not, during
the past five (5) years, directly or indirectly, taken any act that could cause any
Covered Entity to be in violation of, applicable International Trade Laws or Anti-Corruption Laws.
No Covered Entity nor any of its directors, officers, employees, or to the
knowledge of the Borrower, any agents or affiliates acting on behalf of any
Covered Entity has, during the past five (5) years, received any notice or
communication from any Person that alleges, or been involved in an internal
investigation involving any allegations relating to, potential violation of any
International Trade Laws or Anti-Corruption Laws, or received a request for
information from any Official Body regarding International Trade Law matters or
Anti-Corruption Law matters. There is no Blocked Property pledged as Collateral.
Affirmative Covenants. The Borrower agrees that from the date of
execution of this Agreement until all Obligations have been paid in full and any
commitments of the Bank to the Borrower have been terminated, the Bmrnwer
shall (a) immediately notify the Bank in writing upon the occurrence of a
- 6 -
Form 17 A - Multistate Rev. 8/23 |
| 123961765-3
Reportable Compliance Event; (b) immediately provide substitute Collateral to the
Bank if, at any time, any Collateral becomes Blocked Property; and ( c) conduct its
business in compliance with applicable Anti-Corruption Laws, Anti-Money
Laundering Laws and International Trade Laws and maintain in effect policies and
procedures reasonably designed to ensure compliance with all applicable Anti-Corruption Laws, Anti-Money Laundering Laws and International Trade Laws by
each Covered Entity, and its directors and officers, and any employee, agent or
affiliate acting on behalf of such Covered Entity in connection with this
Agreement.
Negative Covenants. The Bmrnwer covenants and agrees that from the
date of this Agreement until all Obligations have been paid in full and any
commitments of the Bank to the Borrower have been tmminated, the Borrower will
not, without the Bank's prior written consent, (I) permit its directors and officers,
and any employee, agent or affiliate acting on behalf of any Loan Party in
connection with this Agreement, nor such Loan Party's subsidiaries to (a) become
a Sanctioned Person; (b) directly or indirectly provide, use, or make available the
proceeds of any Loan hereunder (i) to fund any activities or business of, with, or
for the benefit of any Person that, at the time of such funding or facilitation, is a
Sanctioned Person, (ii) to fund or facilitate any activities or business of or in any
Sanctioned Jurisdiction, (iii) in any manner that could result in a violation by any
Person (including the Bank) of Anti-Corruption Laws, Anti-Money Laundering
Laws or International Trade Laws or (iv) in violation of any applicable Law,
including, without limitation, any applicable Anti-Corruption Law, Anti-Money
Laundering Law or International Trade Law; (c) repay any Loan with Blocked
Property or funds derived from any unlawful activity; or ( d) permit any Collateral
to become Blocked Property; nor (II) directly or indirectly provide, use, or make
available the proceeds of any Loan hereunder to any such Loan Party's subsidiaries
that is not party to this Agreement.
Certain Definitions. As used herein:
"Anti-Corruption Laws" means (a) the U.S. Foreign Conupt Practices Act of
1977, as amended, (b) the U.K. Bribery Act 2010, as amended, and (c) any other
applicable Law relating to anti-bribery or anti-com1ption in any jurisdiction in
which any Loan Party is located or doing business.
"Anti-Money Lanndering Laws" means (a) the Bank Secrecy Act and the
Uniting and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001; (b) the U.K.
Proceeds of Crime Act 2002, the Money Laundering Regulations 201 7, as
amended and the Terrorist Asset-Freezing etc. Act 2010; and (c) any other
applicable Law relating to anti-money laundering and countering the financing of
terrorism in any jurisdiction in which any Loan Party is located or doing business.
"Blocked Property" means any property (a) owned, directly or indirectly, by a
Sanctioned Person; (b) due to or from a Sanctioned Person; ( c) in which a
Sanctioned Person otherwise holds any interest; ( d) located in a Sanctioned
Jurisdiction; or (e) that otherwise could cause any actual or possible violation by
the Bank of any applicable International Trade Law if the Bank were to obtain an
encumbrance on, lien on, pledge of, or security interest in such property, or provide
services in consideration of such property.
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| 123961765-3
"Collateral" means any collateral securing any debt, liabilities, or other
obligations of any Loan Party to the Bank.
"Compliance Anthority" means (a) the United States government or any agency
or political subdivision thereof, including, without limitation, the U.S. Department
of State, the U.S. Depaitment of Commerce, the U.S. Depattment of the Treasury
and its Office of Foreign Assets Control, and the U.S. Customs and Border
Protection agency; (b) the government of Canada or any agency thereof; ( c) the
European Union or any agency thereof; (d) the government of the United Kingdom
or any agency thereof; (e) the United Nations Security Council; and (f) any other
Official Body with jurisdiction to administer Anti-Corruption Laws, Anti-Money
Laundering Laws or International Trade Laws with respect to the conduct of a
Covered Entity.
"Covered Entity" means (a) the Borrower and each of the Borrower's
subsidiaries; (b) each Guarantor and any pledgor of Collateral; and ( c) each Person
that directly or indirectly controls a Person described in clanse (a) or (b) above.
"International Trade Laws" means all Laws relating to economic and financial
sanctions, trade embargoes, export controls, customs, and anti-boycott measures.
"Law" means any law(s) (including common law), constitution, statute, treaty,
regulation, rule, ordinance, opinion, release, ruling, order, executive order,
injunction, writ, decree, bond, judgment, authorization or approval, lien or award,
or any settlement arrangement, by agreement, consent or otherwise, of any Official
Body, foreign or domestic.
"Loan Parties" means the Borrower and any Guarantors.
"Official Body" means the government of the United States of America or of any
other nation, or of any political subdivision thereof, whether state or local, 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 pe1taining to government (including ai1y
supra-national bodies such as the European Union or the European Central Bank)
and any group or body charged with setting financial accounting or regulatory
capital rules or standards (including the Financial Accounting Sta11dards Board,
the Bank for International Settlements or the Basel Committee on Banking
Supervision or any successor or similar authority to any of the foregoing).
"Person" means any natural person, corporation, limited liability company, trust,
joint venture, association, company, partnership, Official Body, or other entity.
"Reportable Compliance Event" as used herein means (1) any Covered Entity
becomes a Sanctioned Person, or is charged by indictment, criminal complaint, or
similar charging instrument, arraigned, custodially detained, penalized or the
subject of an assessment for a penalty, by, or enters into a settlement with an
Official Body in connection with any Anti-Corruption Law, Anti-Money
Laundering Law or International Trade Law, or any predicate crime to any Anti-Corruption Law, Anti-Money Laundering Law or International Trade Law, or has
knowledge of facts or circumstances to the effect that it is reasonably likely that
any aspect of its operations represents a violation of any Anti-Cotrnption Law,
Anti-Money Laundering Law or International Trade Law; (2) any Covered Entity
- 8 -
Form 17A-Mnltistate Rev. 8/23 |
| engages in a transaction that has caused or would cause the Bank to be in violation
of any International Trade Law or Anti-Corruption Law, including a Covered
Entity's use of any proceeds of the Loans hereunder to directly or indirectly fund
any activities or business of, with or for the benefit of any Sanctioned Person, or
to fund or facilitate any activities or business of or in any Sanctioned Jurisdiction;
(3) any Collateral qualifies as Blocked Property, or ( 4) any Covered Entity
otherwise violates, or reasonably believes it will violate, any of the International
Trade Law- or Anti-Corruption Law-specific representations and covenants
herein.
"Sanctioned Jurisdiction" means, at any time, a country, area, territory, or
jurisdiction that is the subject or target of comprehensive U.S. sanctions.
"Sanctioned Person" means any Person (a) located in, organized under the laws
of, or ordinarily resident in a Sanctioned Jurisdiction; (b) identified on any
sanctions-related list maintained by any Compliance Authority; or (c) owned 50%
or more, in the aggregate, directly or indirectly by, controlled by, or acting for, on
behalf of, or at the direction of, one or more Persons described in clauses (a) or (b)
above."
7. The following prov1s1ons hereby replace the Section entitled "Anti-Money
Laundering/International Trade Law Compliance" in each guaranty agreement executed and
delivered to the Bank by any Guarantor consenting to this Amendment ( or, alternatively, are hereby
added to any such guaranty agreement that does not already include a provision entitled "Anti-Money Laundering/International Trade Law Compliance"):
123961765-3
"Anti-Corruption Laws and International Trade Laws; Anti-Money
Laundering Laws; Certain Definitions.
Representations and Warranties. The Guarantor hereby makes the
following representations and warranties, which shall be continuing in nature and
remain in full force and effect until the Guaranteed Obligations are paid in full:
The Guarantor, and its directors and officers, and each employee, agent or affiliate
acting on behalf of the Guarantor: (a) is not a Sanctioned Person; (b) does not do
any business in or with, or derive any of its operating income from direct or indirect
investments in or transactions involving, any Sanctioned Jurisdiction or
Sanctioned Person; and (c) is not in violation of, and has not, during the past five
(5) years, directly or indirectly, taken any act that could cause the Guarantor to be
in violation of, applicable International Trade Laws or Anti-Com1ption Laws.
The Guarantor has not nor has any of its directors, officers, employees, or to the
knowledge of the Guarantor, any agents or affiliates acting on behalf of the
Guarantor, during the past five (5) years, received any notice or communication
from any Person that alleges, or been involved in an internal investigation
involving any allegations relating to, potential violation of any International Trade
Laws or Anti-Corruption Laws, or received a request for infmmation from any
Official Body regarding International Trade Law matters or Anti-Corruption Law
matters. There is no Blocked Property pledged by the Guarantor as Collateral.
Affirmative Covenants. The Guarantor agrees that until all Guaranteed
Obligations have been paid in full and any commitments of the Bank to the
Borrower have been terminated, the Guarantor shall (a) immediately notify the
- 9 -
Form 17 A- Multistate Rev. 8/23 |
| 123961765-3
Bank in writing upon the occurrence of a Reportable Compliance Event; (b)
immediately provide substitute Collateral to the Bank if, at any time, any Collateral
pledged by the Guarantor becomes Blocked Property; and (c) conduct its business
in compliance with applicable Anti-Corruption Laws, Anti-Money Laundering
Laws and International Trade Laws and maintain in effect policies and procedures
reasonably designed to ensure compliance with all applicable Anti-Corruption
Laws, Anti-Money Laundering Laws and International Trade Laws by the
Guarantor, and its directors and officers, and any employee, agent or affiliate
acting on behalf of the Guarantor in connection with the Guaranteed Obligations.
Negative Covenants. The Guarantor covenants and agrees that until all
Guaranteed Obligations have been paid in full and any commitments of the Bank
to the Borrower have been terminated, the Guarantor will not, without the Bank's
prior written consent, (I) permit its directors and officers, and any employee, agent
or affiliate acting on behalf of the Guarantor in connection with the Guaranteed
Obligations, nor such Guarantor's subsidiaries to (a) become a Sanctioned Person;
(b) directly or indirectly provide, use, or make available the proceeds of any Joan
or advance from the Bank (i) to fund any activities or business of, with, or for the
benefit of any Person that, at the time of such funding or facilitation, is a
Sanctioned Person, (ii) to fund or facilitate any activities or business of or in any
Sanctioned Jurisdiction, (iii) in any manner that could result in a violation by any
Person (including the Bank) of Anti-Corruption Laws, Anti-Money Laundering
Laws or International Trade Laws or (iv) in violation of any applicable Law,
including, without limitation, any applicable Anti-Cmrnption Law, Anti-Money
Laundering Law or International Trade Law; ( c) pay any Guaranteed Obligations
with Blocked Property or funds derived from any unlawful activity; or (d) peimit
any Collateral pledged by the Guarantor to become Blocked Property; nor (II)
directly or indirectly provide, use, or make available the proceeds of any Joan or
advance from the Bank to any subsidiary of the Guarantor that is not party to the
loan agreement governing such loan or advance.
Certain Definitions. As used herein:
"Anti-Corruption Laws" means (a) the U.S. Foreign Corrupt Practices Act of
1977, as amended, (b) the U.K. Bribery Act 2010, as amended, and (c) any other
applicable Law relating to anti-bribery or anti-corruption in any jurisdiction in
which any Loan Party is located or doing business.
"Anti-Money Laundering Laws" means (a) the Bank Secrecy Act and the
Uniting and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001; (b) the U.K.
Proceeds of Crime Act 2002, the Money Laundering Regulations 2017, as
amended and the Te1rnrist Asset-Freezing etc. Act 2010; and (c) any other
applicable Law relating to anti-money laundering and countering the financing of
te1rnrism in any jurisdiction in which any Loan Party is located or doing business.
"Blocked Property" means any property (a) owned, directly or indirectly, by a
Sanctioned Person; (b) due to or from a Sanctioned Person; ( c) in which a
Sanctioned Person otherwise holds any interest; (d) located in a Sanctioned
Jurisdiction; or (e) that otherwise could cause any actual or possible violation by
the Bank of any applicable International Trade Law if the Bank were to obtain an
encumbrance on, lien on, pledge of, or security interest in such property, or provide
services in consideration of such property.
- 10 -
Form 17A-Multistate Rev. 8/23 |
| 123961765-3
"Collateral" means any collateral securing any debt, liabilities, or other
obligations of any Loan Party to the Bank.
"Compliance Authority" means (a) the United States government or any agency
or political subdivision thereof, including, without limitation, the U.S. Department
of State, the U.S. Department of Commerce, the U.S. Department of the Treasmy
and its Office of Foreign Assets Control, and the U.S. Customs and Border
Protection agency; (b) the government of Canada or any agency thereof; ( c) the
European Union or any agency thereof; (d) the government of the United Kingdom
or any agency thereof; (e) the United Nations Security Council; and (f) any other
Official Body with jurisdiction to administer Anti-Cormption Laws, Anti-Money
Laundering Laws or International Trade Laws with respect to the conduct of a
Covered Entity.
"Covered Entity" means (a) the Borrower and each of the Borrower's
subsidiaries; (b) each Guarantor and any pledgor of Collateral; and ( c) each Person
that directly or indirectly controls a Person described in clause (a) or (b) above.
"International Trade Laws" means all Laws relating to economic and financial
sanctions, trade embargoes, expmt controls, customs, and anti-boycott measures.
"Law" means any law(s) (including common law), constitution, statute, treaty,
regulation, rule, ordinance, opinion, release, ruling, order, executive order,
injunction, writ, decree, bond, judgment, authorization or approval, lien or award,
or any settlement arrangement, by agreement, consent or otherwise, of any Official
Body, foreign or domestic.
"Loan Parties" means the Borrower and any Guarantors.
"Official Body" means the government of the United States of America or of any
other nation, or of any political subdivision thereof, whether state or local, and any
agency, authority, instmmentality, regulatory body, court, central bank or other
entity exercising executive, legislative, judicial, taxing, regulatmy or
administrative powers or functions of or pe1taining to government (including any
supra-national bodies such as the European Union or the European Central Bank)
and any group or body charged with setting financial accounting or regulatory
capital mies or standards (including the Financial Accounting Standards Board,
the Bank for International Settlements or the Basel Committee on Banking
Supervision or any successor or similar authority to any of the foregoing).
"Person" means any natural person, corporation, limited liability company, trust,
joint venture, association, company, partnership, Official Body, or other entity.
"Reportable Compliance Event" as used herein means (1) any Covered Entity
becomes a Sanctioned Person, or is charged by indictment, criminal complaint, or
similar charging instmment, arraigned, custodially detained, penalized or the
subject of an assessment for a penalty, by, or enters into a settlement with an
Official Body in connection with any Anti-Corruption Law, Anti-Money
Laundering Law or International Trade Law, or any predicate crime to any Anti-Cormption Law, Anti-Money Laundering Law or International Trade Law, or has
knowledge of facts or circumstances to the effect that it is reasonably likely that
any aspect of its operations represents a violation of any Anti-Corruption Law,
- 11 -
Form 17A-Mnltistate Rev. 8/23 |
| Anti-Money Laundering Law or International Trade Law; (2) any Covered Entity
engages in a transaction that has caused or would cause the Bank to be in violation
of any International Trade Law or Anti-Cmrnption Law, including a Covered
Entity's use of any proceeds of the Obligations guaranteed hereunder to directly or
indirectly fund any activities or business of, with or for the benefit of any
Sanctioned Person, or to fund or facilitate any activities or business of or in any
Sanctioned Jurisdiction; (3) any Collateral qualifies as Blocked Property, or (4)
any Covered Entity otherwise violates, or reasonably believes it will violate, any
of the International Trade Law- or Anti-Corruption Law-specific representations
and covenants herein.
"Sanctioned Jurisdiction" means, at any time, a countty, area, teiTitory, or
jurisdiction that is the subject or target of comprehensive U.S. sanctions.
"Sanctioned Person" means any Person (a) located in, organized under the laws
of, or ordinarily resident in a Sanctioned Jurisdiction; (b) identified on any
sanctions-related list maintained by any Compliance Authority; or ( c) owned 50%
or more, in the aggregate, directly or indirectly by, controlled by, or acting for, on
behalf of, or at the direction of, one or more Persons described in clauses (a) or (b)
above."
E. Conditions to Effectiveness of Amendment. The Bank's willingness to agree to the amendments set fmih
in this Amendment is subject to the prior satisfaction of the following conditions:
1. Execution by all parties and delivery to the Bank of
(a) this Amendment, including the attached Consent
(b) the Restated Line of Credit Note
( c) the Restated Sweep Rider
( d) Resolutions for Extensions of Credit and Incumbency Ce,tificate oflnnovative Solutions
and Support, Inc., Innovative Solutions and Suppmt, LLC, IS&S Delaware, Inc. and IS&S
Holdings, Inc.
2. Payment by the Borrower of the fees and expenses of the Bank's outside counsel in connection
with this Amendment.
- 12 -
Form 17A-Mnltistate Rev. 8/23
123961765-3 |
| CONSENT OF GUARANTOR
Each of the undersigned guarantors Uointly and severally if more than one, the "Guarantor") consents to
the provisions of the foregoing Amendment and all prior amendments (if any) and confoms and agrees that: (a) the
Guarantor's obligations under its Guaranty and Suretyship Agreement dated as of May 11, 2023 (collectively if
more than one, the "Guaranty"), relating to the Obligations mentioned in the Amendment, shall be unimpaired by
the Amendment; (b) the Guarantor has no defenses, set offs, counterclaims, discounts or charges of any kind against
the Bank, its officers, directors, employees, agents or attorneys with respect to the Guaranty; and ( c) all of the terms,
conditions and covenants in the Guaranty remain unaltered ( except as expressly modified by the Amendment) and
in full force and effect, are hereby ratified and confirmed, and continue to apply to the Obligations, as modified by
the Amendment. The Guarantor ce1tifies that all representations and wan-anties made in the Guaranty are true and
correct.
The Guarantor hereby confoms that any collateral for the Obligations, including liens, security interests,
mortgages, and pledges granted by the Guarantor or third parties (if applicable), shall continue unimpaired and in
full force and effect, shall cover and secure all of the Guarantor's existing and future Obligations to the Bank, as
modified by this Amendment.
By signing below, the Guarantor agrees that this Consent, the Guaranty, the other Loan Documents, any
amendments thereto and any other information, notice, signature card, agreement or authorization related thereto
( each, a "Communication") may, at the Bank's option, be in the fonn of an electronic record. Any Communication
may, at the Bank's option, be signed or executed using electronic signatures. For the avoidance of doubt, the
authorization under this paragraph may include, without limitation, use or acceptance by the Bank of a manually
signed paper Communication which has been conve1ted into electronic fmm (such as scanned into PDF format) for
transmission, delivery and/or retention. The Guarantor acknowledges and agrees that the methods for delivering
Commuuications, including notices, under the Guaranty and the other Loan Documents include electronic
transmittal to any electronic address provided by any party to the other party from time to time.
By signing below, each Guarantor who is an individual provides written authorization to the Bank or its
designee ( and any assignee or potential assignee hereof) to obtain the Guarantor's personal credit profile from one
or more national credit bureaus. This authorization extends to obtaining a credit profile (i) in considering an
application for credit that is evidenced, guaranteed or secured by the Guaranty or documents relating thereto, (ii)
assessing creditworthiness and (iii) considering extensions of credit, including on an ongoing basis, as necessa1y
for the purposes of ( a) update, renewal or extension of such credit or additional credit, (b) reviewing, administering
or collecting tl1e resulting account and (c) repmting on the repayment and satisfaction of such credit obligations.
By signing below, such individual fmther ratifies and confoms his or her prior requests and authorizations with
respect to the matters set forth herein. For the avoidance of doubt, this provision does not apply to persons signing
below in their capacities as officers or other authorized representatives of entities, organizations or govellll1lental
bodies. A photocopy or facsimile copy of this authorization shall be valid as the original. By signature below, each
such Guarantor affinns his/her identity as the respective individual(s) identified in the Guaranty.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
- 13 -
Form 17 A - Multistate Rev. 8/23
123961765-3 |
| The Guarautor ratifies aud confirms the indemnification and waiver of jury trial or arbitration
provisions contained in the Guaranty, all of which are incorporated herein by reference.
WITNESS the due execution of this Consent as a document under seal as of the date of this Amendment,
intending to be legally bound hereby.
123961765-3
::&~ (SEAL)
Reiland M Winand, CFO
IB&S no4cs, 0)
By:,__c__~_L___C--'-_c___------"-----~ (SEAL)
Reiland M Winand, CFO
- 14 -
Form 17A-Multistate Rev. 8/23 |
Exhibit
10.2 | Amended and Restated
Revolving Line of Credit Note
(Daily SOFR)
~PNC
$30,000,000.00 December~, 2023
FOR VALUE RECEIVED, INNOVATIVE SOLUTIONS AND SUPPORT, INC. and INNOVATIVE
SOLUTIONS AND SUPPORT, LLC (jointly and severally, individually and collectively, the "Borrower"), with
an address at 720 Pennsylvania Drive, Exton, PA 19341, promises to pay to the order of PNC BANK, NATIONAL
ASSOCIATION (the "Bank"), in lawful money of the United States of America in immediately available funds at
its offices located at 1600 Market Street, Philadelphia, PA 19103, or at such other location as the Bank may
designate from time to time, the principal sum of $30,000,000.00 (the "Facility") or such lesser amouut as may be
advanced to or for the benefit of the Borrower hereunder, together with interest accruing on the outstanding principal
balance from the date hereof, all as provided below.
1. Revolving Line of Credit Advances. This Note evidences a revolving line of credit. The Borrower may
ban-ow, repay and rebon-ow hereunder and the Bank may advance and readvance under this Note from time to time
( each an "advance" and together the "advances") until the Expiration Date, subject to the terms and conditions of
this Note and the Loan Documents (as defined below). The "Expiration Date" means December 19, 2028, or such
later date as may be designated by the Bank by written notice from the Bank to the Bon-ower. The Bmrnwer
acknowledges and agrees that in no event will the Bank be under any obligation to extend or renew the Facility or
this Note beyond the Expiration Date. In no event shall the aggregate unpaid principal amount of advances under
this Note exceed the face amount of this Note.
2. Interest Rate and Payments. Amounts outstanding under this Note will bear interest at a rate per annum
which is equal to the sum of (A) Daily SOFR (as defined below) plus (B) an unadjusted spread of the Applicable
SOFR Margin plus (C) a SOFR adjustment of ten (10) basis points (0.10%). Accrued interest will be due and
payable on the first day of each month, beginning with the payment due on Januaty I, 2024. The outstanding
principal balance and any accrued but unpaid interest shall be due and payable on the Expiration Date.
3. Certain Definitions. If the following terms are used in this Note, such terms shall have the meanings set
forth below:
"Alternate Rate" means the Base Rate.
"Applicable SOFR Margin" shall mean the percent per annum equal to the amount set fmth under the
applicable column opposite the Total Funded Debt to EBITDA ratio set faith below as shown on the last
compliance certificate delivered to the Bank pursuant to the Loan Documents prior to such date:
Level Total Funded Debt to EBITDA ratic Applicable SOFE
Margin*
I Less than 2.50 to 1.00 1.5%
II Greater than or equal to 2.50 to 1.01 2.0% and less than 3.00 to 1.00
Ill Greater than or equal to 3.00 to 1.01 2.5%
Form 8C-S (COJ)-Rev. 8/23 (SOFR Rl)
123962365-3 |
| * The Applicable SOFR Margin will be adjusted by Bank on a quatterly basis as necessary on the
first Business Day of each calendar month following submission to Bank of the Borrower's Financial
Statements as required pursuant to the Loan Documents and the compliance certificate required in
connection therewith; provided, however, if Borrower does not deliver either its Financial Statements or
such compliance ce1tificate by the date required pursuant to the Loan Documents, the Applicable SOFR
Margin will automatically be adjusted on the first Business Day of the month following the due date for
such Financial Statements to the highest Applicable SOFR Margin and will stay at such rate until the first
Business Day following the month in which such Financial Statements are actually delivered. The
Applicable SOFR Margin to be applied until receipt of the Borrower's next compliance ce1tificate shall be
at Level III.
"Base Rate" means the higher of (A) the Prime Rate, and (B) the sum of the Overnight Bank Funding Rate
plus 50 basis points (0.50%); provided, however, if the Base Rate as determined above would be less than
zero, then such rate shall be deemed to be zero. If and when the Base Rate as determined above changes,
the rate of interest with respect to any amounts hereunder to which the Base Rate applies will change
automatically without notice to the Borrower, effective on the date of any such change.
"Business Day" means any day other than (A) a Saturday or Sunday or (B) a legal holiday on which
commercial banks are authorized or required by law to be closed for business in Pittsburgh, Pennsylvania;
provided that, when used in connection with an amount that bears interest at a rate based on SOFR or any
direct or indirect calculation or determination involving SOFR, the term "Business Day" means any such
day that is also a U.S. Government Securities Business Day.
"Daily lM SOFR" means, for any day, the interest rate per annum dete1mined by the Bank by dividing
(the resulting quotient rounded upwards, at the Bank's discretion, to the nearest 1/100th of 1 %) (A) the
Term SOFR Reference Rate for such day for a one-month period, as published by the Tenn SOFR
Administrator, by (B) a number equal to 1.00 minus the SOFR Reserve Percentage; provided that if Daily
IM SOFR, determined as provided above, would be less than the Floor, then Daily IM SOFR shall be
deemed to be the Floor. The rate of interest will be adjusted automatically as of each Business Day based
on changes in Daily IM SOFR without notice to the Borrower.
"Daily SOFR" means Daily IM SOFR.
"Default Rate" means the rate per annum equal to the lesser of (A) the sum of 3% plus the interest rate
otherwise in effect from time to time under this Note and (B) the Maximum Rate.
"Floor" 1neans a rate of interest per annmn equal to zero.
"Maximum Rate" means the maximum rate of interest allowed by applicable law.
"NYFRB" means the Federal Reserve Bank of New York.
"Overnight Bank Funding Rate" means, for any day, the rate comprised of both overnight federal funds
and overnight Eurocurrency borrowings by U.S.-managed banking offices of depository institutions, as
such composite rate shall be deteimined by the NYFRB, as set forth on its public website from time to time,
and as published on the next succeeding Business Day as the overnight bank funding rate by the NYFRB
(or by such other recognized electronic source (such as Bloomberg) selected by the Bank for the purpose
of displaying such rate); provided, that if such day is not a Business Day, the Overnight Bank Funding Rate
for such day shall be such rate on the immediately preceding Business Day; provided, fu1ther, that if such
rate shall at any time, for any reason, no longer exist, a comparable replacement rate determined by the
Bank at such time (which determination shall be conclusive absent manifest error). If the Overnight Bank
- 2 -
Form SC-S (COJ)- Rev. 8/23 (SOFR Rl) .
123962365-3 |
| Funding Rate determined as above would be less than zero, then such rate shall be deemed to be zero. The
rate of interest charged shall be adjusted as of each Business Day based on changes in the Overnight Bank
Funding Rate without notice to the Borrower.
"Prime Rate" means the rate publicly announced by the Bank from time to time as its prime rate. The
Prime Rate is detennined from time to time by the Bank as a means of pricing some loans to its borrowers.
The Prime Rate is not tied to any external rate of interest or index and does not necessarily reflect the lowest
rate of interest actually charged by the Bank to any particular class or categmy of customers.
"SOFR" means a rate equal to the secured overnight financing rate as administered by the NYFRB ( or a
successor administrator of the secured overnight financing rate).
"SOFR Reserve Percentage" means, for any day, the maximum effective percentage in effect on such day,
if any, as prescribed by the Board of Governors of the Federal Reserve System ( or any successor) for
determining the reserve requirements (including, without limitation, supplemental, marginal and
emergency reserve requirements) with respect to SOFR funding.
"Term SOFR Administrator" means CME Group Benchmark Administration Limited (CBA) ( or a
successor administrator of the Term SOFR Reference Rate selected by the Bank in its reasonable
discretion).
"Term SOFR Reference Rate" means the forward-looking term rate based on SOFR.
"U.S. Government Securities Business Day" means any day except for (A) a Saturday or Sunday or (B)
a day on which the Securities Industry and Financial Markets Association recommends that the fixed
income depaitments of its members be closed for the entire day for purposes of trading in United States
government securities.
4. Advance Procedures. If peimitted by the Bank, a request for advance may be made by telephone or
electronic mail, or delivered in accordance with the Bank's security procedures through any automated platfonn or
electronic service provided by the Bank, with such confirmation or verification (if any) as the Bank may require in
its discretion from time to time. A request for advance by any Bmrnwer shall be binding upon Borrower, jointly
and severally. The Borrower authorizes the Bank to accept telephonic, email, automated and electronic requests
for advances, and the Bank shall be entitled to rely upon the authority of any person providing such instructions.
The Borrower hereby indemnifies and holds the Bank harmless from and against any and all damages, losses,
liabilities, costs and expenses (including reasonable attorneys' fees and expenses) which may ai·ise or be created by
the acceptance of such telephonic, email, automated and electronic requests or by the making of such advances.
The Bank will enter on its books and records, which enl!y when made will be presumed correct, the date and amount
of each advance, as well as the date and amount of each payment made by the Borrower.
5. Interest Calculation; Maximum Rate. Interest will be calculated based on the actual number of days that
principal is outstanding over a year of360 days. In no event will the effective rate of interest hereunder, inclusive
of all fees, charges, and other amounts that are treated as interest under applicable law, exceed the Maximum Rate.
Regardless of any other provision of this Note or the other Loan Documents, if for any reason such effective interest
rate should exceed the Maximum Rate, such effective interest rate shall be deemed reduced to, and shall be, the
Maximum Rate, and (i) the amount which would be excessive interest shall be deemed applied to the reduction of
the principal balance of this Note and not to the payment of interest, and (ii) if the loan evidenced by this Note has
been or is thereby paid in full, the excess shall be returned to the party paying same, such application to the principal
balance of this Note or the refunding of such excess to be a complete settlement and acquittance thereof.
6. Conforming Changes; Benchmark Replacement Provisions. The Bank shall have the right to make any
technical, administrative or operational changes from time to time that the Bank decides may be appropriate to
- 3 -
Form 8C-S (COJ)- Rev. 8/23 (SOFR RI)
123962365-3 |
| reflect the adoption and implementation of SOFR or any other Benchmark (as defined below) or to permit the use
and administration thereof by the Bank in a manner substantially consistent with market practice or in such other
manner as the Bank decides is reasonably necessary. Notwithstanding anything to the contrary herein or in any
other Loan Document, any amendments implementing such technical, administrative or operational changes will
become effective without any further action or consent of the Borrower. The Bank shall provide notice to the
Borrower of any such amendment reasonably promptly after such amendment becomes effective.
If the applicable rate under this Note is based on a Benchmark and the Bank dete1mines (which detetmination shall
be final and conclusive) that (A) such Benchmark cannot be detennined pursuant to its definition other than as a
result of a Benchmark Transition Event (as defined below), or (B) any enactment, promulgation or adoption of or
any change in any applicable law, rule or regulation, or any change in the interpretation or administration thereof
by a governmental authority, central bank or comparable agency charged with the interpretation or administration
thereof, or compliance by the Bank with any guideline, request or directive (whether or not having the force oflaw)
of any such authority, central bank or comparable agency shall make it unlawful or impracticable for the Bank to
make or maintain or fund loans based on that Benchmark, then the Bank shall give notice thereof to the Borrower.
Thereafter, until the Bank notifies the Borrower that the circumstances giving rise to such determination no longer
exist, the interest rate on all amounts outstanding under this Note shall be the Alternate Rate.
Notwithstanding anything to the contrary herein or in any other Loan Document, if the Bank dete1mines (which
determination shall be final and conclusive) that a Benclnnark Transition Event has occurred with respect to a
Benchmark, the Bank may amend this Note to replace such Benchmark with a Benchmark Replacement (as defined
below); and any such amendment shall be in writing, shall specify the date that the Benchmark Replacement is
effective and will not require any further action or consent of the Borrower. Until the Benchmark Replacement is
effective, amounts bearing interest with reference to a Benchmark will continue to bear interest with reference to
such Benclnnark as long as such Benchmark is available, and otherwise such amounts automatically will bear
interest at the Alternate Rate.
For purposes of this Section, the following te1ms have the meanings set forth below:
"Benchmark" means, at any time, any interest rate index then used in the dete1mination of an interest rate
under the terms of this Note. Once a Benchmark Replacement becomes effective under this Note, it is a
Benchmark. The initial Benchmark under this Note is Daily SOFR.
"Benchmark Replacement" means, for any Benchmark, the sum of (a) an alternate benchmark rate and
(b) an adjustment (which may be a positive or negative value or zero), in each case that has been selected
by the Bank as the replacement for such Benchmark giving due consideration to any evolving or then-prevailing market convention, including any applicable recommendations made by the official sector or
any official sector-sponsored committee or working group, for U.S. dollar-denominated credit facilities at
such time: provided that, if the Benchmark Replacement as determined pursuant to the foregoing would be
less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this
Note and the other Loan Documents.
"Benchmark Transition Event" means a public statement or publication by or on behalf of the
administrator of a Benchmark, the regulatmy supervisor of such administrator, the Board of Governors of
the Federal Reserve System, NYFRB, an insolvency official or resolution authority with jurisdiction over
the adminish·ator for such Benchmark or a comt or an entity with similar insolvency or resolution authority
over the administrator for such Benchmark, announcing or stating that (a) such administrator has ceased or
will cease to provide such Benchmark permanently or indefinitely, provided that at the time of such
statement or publication there is no successor administrator that will continue to provide such Benchmark
or (b) such Benchmark is or will no longer be representative.
- 4 -
Form 8C-S (COJ)- Rev. 8/23 (SOFR Rl)
123962365-3 |
| 7. Other Payment Terms. If any payment under this Note is due on a day of a calendar month for which
there is no numerically corresponding day in certain other months ( each, a "Non-Conforming Month"), then the
payment in a Non-Conforming Month shall be due on the last Business Day of snch Non-Conforming Month. If
any payment under this Note shall become due on a day other than a Business Day, such payment shall be due on
the next succeeding Business Day, except that if such day falls in the next succeeding calendar month, such payment
shall be due on the next preceding day that is a Business Day. Interest shall be computed to, but excluding, the date
of payment. The Borrower hereby authorizes the Bank to charge the Borrower's deposit account at the Bank for
any payment when due under this Note or any other Loan Document. Payments received will be applied to charges,
fees and expenses (including attorneys' fees), accrued interest and principal in any order the Bank may choose, in
its sole discretion.
8. Late Payments; Default Rate. If the Borrower fails to make any payment of principal, interest or other
amount coming due pursuant to the provisions of this Note within 15 calendar days of the date due and payable, the
Borrower also shall pay to the Bank a late charge equal to the lesser of 5% of the amount of such payment or
$100.00 (the "Late Charge"). Such 15-day period shall not be construed in any way to extend the due date of any
such payment. Upon maturity, whether by acceleration, demand or otherwise, and at the Bank's option upon the
occurrence of any Event of Default ( as hereinafter defined) and during the continuance thereof, amounts outstanding
under this Note shall bear interest at the Default Rate. The Default Rate shall continue to apply whether or not
judgment shall be entered on this Note. Both the Late Charge and the Default Rate are imposed as liquidated
damages for the purpose of defraying the Bank's expenses incident to the handling of delinquent payments, but are
in addition to, aud not in lieu of, the Bank's exercise of any rights and remedies hereunder, under the other Loan
Documents or under applicable law, and any fees and expenses of any agents or attomeys which the Bank may
employ. In addition, the Default Rate reflects the increased credit risk to the Bank of canying a loan that is in
default. The Borrower agrees that the Late Charge and Default Rate are reasonable forecasts of just compensation
for anticipated and actual harm incurred by the Bank, and that the actual hmm incurred by the Bank cannot be
estimated with ce1tainty and without difficulty.
9. Prepayment. The indebtedness evidenced by this Note may be prepaid in whole or in part at any time
without penalty.
10. Increased Costs; Yield Protection. On written demand, together with written evidence of the justification
therefor, the Borrower agrees to pay the Bank all direct costs incurred, any losses suffered or payments made by
the Bank as a result of any Change in Law (hereinafter defined), imposing any reserve, deposit, allocation of capital
or similar requirement (including without limitation, Regulation D of the Board of Govemors of the Federal Reserve
System) on the Bank, its holding company or any of their respective assets relative to the Facility. "Change in
Law" means the occmTence, after the date of this Note, of any of the following: (a) the adoption 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) the making or issuance
of any request, rule, guideline or directive (whether or not having the force of law) by any governmental authority;
provided that notwithstanding anything herein to the contrmy, (x) the Dodd-Frank Wall Street Refmm and
Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection
therewith and (y) all requests, rules, guidelines or directives promulgated by the Ba11k for International Settlements,
the Basel Committee on Banking Supervision ( or a11y successor or similar authority) or the United States or foreign
regulato1y 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 or issued.
11. Other Loan Documents. This Note is issued in connection with a letter agreement or loan agreement
between the Borrower and the Bank, dated on or before the date hereof, and the other agreements and documents
executed and/or delivered in connection therewith or referred to therein, the te1ms of which are incorporated herein
by reference (as amended, modified or renewed from time to time, collectively the "Loan Documents"), and is
secured by the propeity (if any) described in the Loan Documents and by any and all mortgages, security
agreements, assignments, loan agreements, pledge agreements and other documents or instruments evidencing a
- 5 -
Form 8C-S (COJ)- Rev. 8/23 (SOFR Rl)
123962365-3 |
| security interest or other lien in favor of the Bank and delivered by the Borrower or by any third party with reference
to indebtedness of the Borrower, whether such documents were previously or are hereafter executed, and whether
given expressly as security for payment of this Note or generally as security for any and all indebtedness of the
Borrower to the Bank. Such documents may be executed contemporaneously with the execution of this Note, or
they may be executed and delivered at another time. Collateral securing other obligations of the Borrower to the
Bank may also secure this Note.
12. Events of Default. The occurrence of any of the following events will be deemed to be an "Event of
Default" under this Note: (i) the nonpayment of any principal, interest or other indebtedness under this Note when
due; (ii) the occurrence of any event of default or any default, or any Obligor' s failure to observe or perfmm any
covenant or other agreement, under or contained in any Loan Document or any other document now or in the future
evidencing or securing any debt, liability or obligation of any Obligor to the Bank; provided, however, that, no such
failure to observe or perform any such covenant or other agreement (excluding financial covenants, financial
reporting covenants, and negative covenants) shall constitute an Event of Default unless such failure continues for
a period of 30 days after the earlier to occur of: (a) the date when any Obligor becomes aware of such failure; and
(b) the date when the Bank gives written notice to the Borrower of such failure;; (iii) the filing by or against any
Obligor of any proceeding in bankruptcy, receivership, insolvency, reorganization, liquidation, conservatorship or
similar proceeding (and, in the case of any such proceeding instituted against any Obligor, such proceeding is not
dismissed or stayed within 60 days of the commencement thereof, provided that the Bank shall not be obligated to
advance additional funds hereunder during such period); (iv) any assignment by any Obligor for the benefit of
creditors, or any levy, gamishment, attachment or similar proceeding is instituted against any property of any
Obligor held by or deposited with the Bank; (v) a default with respect to any other indebtedness of any Obligor for
borrowed money, if the effect of such default is to cause or pennit the acceleration of such debt; (vi) the
commencement of any foreclosure or forfeiture proceeding, execution or attachment against any collateral securing
the obligations of any Obligor to the Bank; (vii) the entty of a final judgment against any Obligor and the failure of
such Obligor to discharge the judgment within 30 days of the ent1y thereof; (viii) any change in any Obligor's
business, assets, operations, financial condition or results of operations that has or could reasonably be expected to
have any material adverse effect on any Obligor; (ix) any Obligor ceases doing business as a going concem; (x) any
representation or warranty made by any Obligor to the Bank in any Loan Document or any other documents now
or in the future evidencing or securing the obligations of any Obligor to the Bank, is false, erroneous or misleading
in any material respect; (xi) if this Note or any guarantee executed by any Obligor is secured, the failure of any
Obligor to provide the Bank with additional collateral if in the Bank's opinion at any time or times, the market value
of any of the collateral securing this Note or any guarantee has depreciated below that required pursuant to the Loan
Documents or, if no specific value is so required, then in an amount deemed material by the Bank; (xii) the
revocation or attempted revocation, in whole or in part, of any guarantee by any Obligor; or (xiii) the death,
incarceration, indicttnent or legal incompetency of any individual Obligor or, if any Obligor is a partnership or
limited liability company, the death, incarceration, indictment or legal incompetency of any individual general
partner or member. As used herein, the tetm "Obligor" means any Borrower and any guarantor of, or any pledgor,
mmtgagor or other person or entity providing collateral support for, the Borrower's obligations to the Bank existing
on the date of this Note or arising in the future.
Upon the occurrence of an Event of Default: (a) the .Bank shall be under no further obligation to make advances
hereunder; (b) if an Event of Default specified in clause (iii) or (iv) above shall occur, the outstanding principal
balance and accrued interest hereunder together with any additional amounts payable hereunder shall be
immediately due and payable without demand or notice of any kind; ( c) if any other Event of Default shall occur,
the outstanding principal balance and accrued interest hereunder together with any additional amounts payable
hereunder, at the Bank's option and without demand or notice of any kind, may be accelerated and become
immediately due and payable; (d) at the Bank's option, this Note will bear interest at the Default Rate from the date
of the occurrence of the Event of Default; and ( e) the Bank may exercise from time to time any of the rights and
remedies available under the Loan Documents or under applicable law. These rights and remedies shall include,
without limitation, the right to apply by appropriate judicial proceedings for appointment of a receiver for the
Borrower or all or patt of any collateral or any assets of the Bmrnwer.
- 6 -
Form 8C-S (COJ)- Rev. 8/23 (SOFR Rl)
123962365-3 |
| 13. Right of Setoff. In addition to all liens upon and rights of setoff against the Borrower's money, securities
or other property given to the Bank by law, the Bank shall have, with respect to the B01rnwer's obligations to the
Bank under this Note and to the extent permitted by law, a contractual possessory security interest in and a
contractual right of setoff against, and the Borrower hereby grants the Bank a security interest in, and hereby assigns,
conveys, delivers, pledges and transfers to the Bank, all of the Borrower's right, title and interest in and to, all of
the Borrower's deposits, moneys, securities and other property now or hereafter in the possession of or on deposit
with, or in transit to, the Bank or any other direct or indirect subsidiary of The PNC Financial Services Group, Inc.,
whether held in a general or special account or deposit, whether held jointly with someone else, or whether held for
safekeeping or otherwise, excluding, however, all IRA, Keogh, and trust accounts. Eve1y such security interest and
right of setoff may be exercised without demand upon or notice to the B01rnwer.
14. Indemnity. The Borrower agrees to indemnify each of the Bank, each legal entity, if any, who controls, is
controlled by or is under common control with the Bank, and each of their respective directors, officers and
employees (the "Indemnified Parties"), and to defend and hold each Indemnified Party hmmless from and against
any and all claims, damages, losses, liabilities and expenses (including all fees and charges of internal or external
counsel with whom any Indemnified Party may consult and all expenses of litigation and preparation therefor)
( each, a "Claim") which any Indemnified Party may incur or which may be asserted against any Indemnified Party
by any person, entity or governmental authority (including any person or entity claiming derivatively on behalf of
the Borrower), in connection with or arising out of or relating to the matters refetTed to in this Note or in the other
Loan Documents or the use of any advance hereunder, whether (a) arising from or incutTed in connection with any
breach of a representation, warranty or covenant by the Bo!Tower, or (b) arising out of or resulting from any suit,
action, claim, proceeding or governmental investigation, pending or tln·eatened, whether based on statute, regulation
or order, or tort, or contract or otherwise, before any comt or governmental authority; provided, however, that the
foregoing indemnity agreement shall not apply to any Claim that is determined by a comt of competent jurisdiction
in a final, 11011-appealable judgment to have been solely attributable to an Indemnified Pmty's gross negligence or
willful misconduct. The indemnity agreement contained in this paragraph shall survive the te1mination of this Note,
payment of any advance hereunder and the assignment of any rights hereunder. The BotTower may participate at
its expense in the defense of any such action or claim.
15. Miscellaneous. All notices, demands, requests, consents, approvals and other communications required or
permitted hereunder ("Notices") must be in writing (except as may be agreed otherwise above with respect to
borrowing requests or as otherwise provided in this Note). Notices may be given in any manner to which the pmties
may agree. Without limiting the foregoing, first-class mail, postage prepaid, facsimile transmission and commercial
courier service are hereby agreed to as acceptable methods for giving Notices. In addition, the parties agree that
Notices may be sent electronically to any electronic address provided by a pmty from time to time or through an
automated platfonn that the Bank provides to the Borrower. Notices may be sent to a party's address as set fo1th
above or to such other address as any pmty may give to the other for such purpose in accordance with this paragraph.
Notices will be effective upon receipt. For purposes hereof, "receipt" means: (i) for notices sent by U.S. mail, the
third business day after the date such notice was sent; (ii) for notices delivered by hand or sent by overnight courier
service, the date delivered; (iii) for notices sent by facsimile or electronic communication, the date when sent; and
(iv) for notices sent by any other method, the date received. No delay or omission on the Bank's pait to exercise
any right or power arising hereunder will impair any such right or power or be considered a waiver of any such
right or power, nor will the Bank's action or inaction impair any such right or power. The Bank's rights and
remedies hereunder are cumulative and not exclusive of any other rights or remedies which the Bank may have
under other agreements, at law or in equity. Except as otherwise set f01th in this Note, no modification, amendment
or waiver of, or consent to any departure by the BotTower from, any provision of this Note will be effective unless
made in a writing signed by the Bank, and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. Notwithstanding the foregoing, the Bank may modify this Note for the
purposes of completing missing content or correcting eirnneous content, without the need for a written amendment,
provided that the Bank shall send a copy of any such modification to the Borrower (which notice may be given by
electronic mail). The Borrower agrees to pay on demand, to the extent pe1mitted by law, all costs and expenses
- 7 -
Form 8C-S (COJ)-Rev. 8/23 (SOFR Rl)
123962365-3 |
| incurred by the Bank in the enforcement of its rights in this Note and in any security therefor, including without
limitation reasonable fees and expenses of the Bank's counsel. If any provision of this Note is found to be invalid,
illegal or unenforceable in any respect by a court, all the other provisions of this Note will remain in full force and
effect. The Bmrnwer and all other makers and indorsers of this Note hereby forever waive presentment, protest,
notice of dishonor, notice of non-payment, notice of intent to accelerate and notice of acceleration, and any other
notice of any kind. The Borrower also waives all defenses based on suretyship or impairment of collateral. If this
Note is executed by more than one Borrower, the obligations of such persons or entities hereunder will be joint and
several. This Note shall bind the Borrower and its heirs, executors, administrators, successors and assigns, and the
benefits hereof shall inure to the benefit of the Bank and its successors and assigns; provided, however, that the
Borrower may not assign this Note in whole or in patt without the Bank's written consent and the Bank at any time
may assign this Note in whole or in patt.
16. Governing Law and Venue. This Note has been delivered to and accepted by the Bank at1d will be deemed
to be made in the State where the Bank's office indicated above is located (the "State"). THIS NOTE WILL BE
INTERPRETED AND THE RIGHTS AND LIABILITIES OF THE BANK AND THE BORROWER DETERMINED IN
ACCORDANCE WITH THE LAWS OF THE STATE, EXCLUDING ITS CONFLICT OF LAWS RULES, INCLUDING
WITHOUT LIMITATION THE ELECTRONIC TRANSACTIONS ACT ( OR EQUIVALENT) IN EFFECT IN THE STA TE ( OR,
TO THE EXTENT CONTROLLING, THE LAWS OF THE UNITED STATES OF AMERICA, INCLUDING WITHOUT
LIMITATION THE ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT). The Borrower
hereby irrevocably consents to the exclusive jurisdiction of any state or federal cornt in the county or judicial district
where the Bank's office indicated above is located; provided that nothing contained in this Note will prevent the
Bank from bringing any action, enforcing any award or judgment or exercising any rights against the Borrower
individually, against any security or against any property of the Borrower within any other county, state or other
foreign or domestic jurisdiction. The Borrower acknowledges and agrees that the venue provided above is the most
convenient forum for both the Bank and the Borrower. The Borrower waives any objection to venue and any
objection based on a more convenient forum in any action instituted under this Note.
17. Commercial Purpose. The Bmrnwer represents that the indebtedness evidenced by this Note is being
incurred by the Bmrnwer solely for the purpose of acquiring or canying on a business, professional or commercial
activity, and not for personal, family or household purposes.
18. USA PATRIOT Act Notice. To help the government fight the funding ofte1rnrism and money laundering
activities, Federal law requires all financial institutions to obtain, verify and record infmmation that identifies each
Borrower that opens an account. What this means: when the Borrower opens an account, the Bank will ask for the
business name, business address, taxpayer identifying number and other information that will allow the Bank to
identify the Borrower, such as organizational documents. For some businesses and organizations, the Bank may
also need to ask for identifying information and documentation relating to certain individuals associated with the
business or organization.
19. Representation by Counsel. The Bmrnwer hereby represents that it has been represented by competent
counsel of its choice, or has knowingly waived its right to use and retain counsel, in the negotiation and execution
of this Note and the other Loan Documents; that it has read and fully understood the terms hereof; that the Bmrnwer
and any retained counsel have been afforded an opportunity to review, negotiate and modify the terms of this Note
and the other Loan Documents; and that it intends to be bound hereby. In accordance with the foregoing, the general
rule of construction to the effect that any ambiguities in a contract are to be resolved against the party drafting the
contract shall not be employed in the construction and interpretation of this Note or any other Loan Document.
20. Authorization to Obtain Credit Reports. By signing below, each person, who is signing in his or her
individual capacity, requests and provides written authorization to the Bank or its designee (and any assignee or
potential assignee hereof) to obtain such individual's personal credit profile from one or more national credit
bureaus. This authorization extends to obtaining a credit profile in (i) considering an application for credit that is
evidenced, guaranteed or secured by this document, (ii) assessing creditwmthiness and (iii) considering extensions
- 8 -
Form SC-S (COJ)- Rev. 8/23 (SOFR Rl)
123962365-3 |
| of credit, including on an ongoing basis, as necessary for the purposes of (a) update, renewal or extension of such
credit or additional credit, (b) reviewing, administering or collecting the resulting account and (c) reporting on the
repayment and satisfaction of such credit obligations. By signing below, such individual further ratifies and
confirms his or her prior requests and authorizations with respect to the matters set fmth herein. For the avoidance
of doubt, this provision does not apply to persons signing below in their capacities as officers or other authorized
representatives of entities, organizations or govemmental bodies.
21. Counterparts; Electronic Signatures and Records. This Note and any other Loan Document may be
signed in any number of counterpmt copies and by the patties hereto on separate counterpatts, but all such copies
shall constitute one and the same instrument. Notwithstanding any other provision herein, the Borrower agrees that
this Note, the Loan Documents, any amendments thereto, and any other information, notice, signature card,
agreement or authorization related thereto (each, a "Communication") may, at the Bank's option, be in the form
of an electronic record. Any Communication may, at the Bank's option, be signed or executed using electronic
signatures. For the avoidance of doubt, the authorization under this paragraph may include, without limitation, use
or acceptance by the Bank of a manually signed paper Communication which has been converted into electronic
fonn (such as scanned into PDF format) for transmission, delivery and/or retention.
22. Automatic Payment. If due to any act or omission of the Borrower or another Obligor the Bank cannot
automatically deduct payments required under this Note or the other Loan Documents from a deposit account with
the Bank (including due to the Borrower's revocation of its authorization to do so or failure to maintain such deposit
account with the Bank or otherwise), the Bank may, at its option, upon 30 days' notice to the Borrower, increase
the interest rate payable by the Bmrnwer under this Note by 25 basis points (0.25%).
23. Depository. The Borrower will establish and maintain with the Bank the Borrower's primary depositmy
acconnts. lfthe Borrower fails to establish and/or maintain its primmy depositmy accounts with the Bank, the Bank
may, at its option, upon 30 days' notice to the Borrower, increase the interest rate payable by the Borrower under
this Note by up to 100 basis points (I .00%). The Bank's right to increase the interest rate pursuant to this paragraph
shall be in addition to any other rights or remedies the Bank may have under this Note, all of which are hereby
reserved, and shall not constitute a waiver, release or limitation upon the Bank's exercise of any such rights or
remedies.
24. Other Fees.
(a) Unused Commitment Fee. Beginning on the first day of the qumter after the date of this Note and
continuing on the first day of each qumter thereafter until the Expiration Date, the Borrower shall pay an unused
commitment fee (the "Unused Fee") to the Bank, in arrears, at the rate of 0.15% per annum on the daily balance
under this Note which is undisbursed and uncanceled on each day during the preceding quatter. The Unused Fee
shall be computed on the basis of a year of 360 days and paid on the actual number of days elapsed. Borrower
hereby authorizes and directs the Bank to charge the Botrnwer' s deposit account with the Bank for each Unused
Fee on or after the date it is due.
25. Amendment and Restatement. This Note amends and restates, and is in substitution for, that
cettain Revolving Line of Credit Note in the original principal amount of $10,000,000.00 payable to the order of
the Bank and dated May 11, 2023 (the "Existing Note"). However, without duplication, this Note shall in no way
extinguish, cancel or satisfy Bmrnwer' s unconditional obligation to repay all indebtedness evidenced by the
Existing Note or constitute a novation of the Existing Note. Nothing herein is intended to extinguish, cancel or
impair the lien priority or effect of any security agreement, pledge agreement or mmtgage with respect to any
Obligor's obligations hereunder and under any other document relating hereto. Notwithstanding anything to the
contrary herein, if any amount outstanding as of the date hereof under the Existing Note bears interest based on a
rate that is reset at the end of a specified interest period, and such interest period commenced prior to the date hereof,
such amount shall continue to bear interest based on such rate, and the terms of the Existing Note applicable to
- 9 -
Form 8C-S (COJ)- Rev. 8/23 (SOFR Rl)
123962365-3 |
| amounts bearing interest based on such rate shall continue to apply to such amount, until the end of the then-current
interest period, after which the interest rate (and related provisions) as stated in this Note shall apply.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
Form 8C-S (COJ)- Rev. 8/23 (SOFR Rl)
123962365-3 |
| 26. WAIVER OF JURY TRIAL. THE BORROWER IRREVOCABLY WAIVES ANY AND ALL RIGHTS THE
BORROWER MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR CLAIM OF ANY NATURE
RELATING TO THIS NOTE, ANY DOCUMENTS EXECUTED IN CONNECTION WITH THIS NOTE OR ANY
TRANSACTION CONTEMPLATED IN ANY OF SUCH DOCUMENTS. THE BORROWER ACKNOWLEDGES THAT THE
FOREGOING WAIVER IS KNOWING AND VOLUNTARY.
The Borrower acknowledges that it has read and understands all the provisions of this Note, including the
waiver of jnry trial, and has been advised by counsel as necessary or appropriate.
WITNESS the due execution hereof as a document under seal, as of the date first written above, with the
intent to be legally bound hereby.
INNOVA~:J_Lu;ro~ AND SUPPORT, INC.
By:_# __
~~---~
______ (SEAL)
Relland M. Winand, CFO
(SEAL)
- 11 -
Form SC-S (COJ)- Rev. 8/23 (SOFR RI)
123962365-3 |
Exhibit
10.3 | Amended and Restated
Line of Credit and
Investment Sweep Rider
(Single Option - SOFR)
©PNC
T}!!S LINE OF CREDIT AND INVESTMENT SWEEP RIDER ("Sweep Rider") is made as of December
-1':i__, 2023 between INNOVATIVE SOLUTIONS AND SUPPORT, INC. and INNOVATIVE SOLUTIONS
AND SUPPORT, LLC Gointly and severally, individually and collectively, "Borrower") and PNC Bank,
National Association ("Bank"). This Sweep Rider amends and restates in its entirety that certain Amended and
Restated Line of Credit and Investment Sweep Rider dated as of May 11, 2023 between Bank and Borrower,
This Sweep Rider is incorporated into and made part of that ce1tain promissory note dated December j_J_, 2023,
as amended, restated or renewed from time to time (the "Note"), and also into certain other financing documents
and security agreements executed by and between Borrower and Bank (the Note together with all such documents
are collectively refeJTed to as the "Loan Documents"). Pursuant to the Loan Documents, Bank has extended a line
of credit (the "Line of Credit") to Borrower, under which Borrower may boJTow, repay and reboJTow funds at any
time prior to the Expiration Date ( as defined in the Loan Documents). As long as this Sweep Rider has not been
terminated, the following (i) outlines the terms under which Bank will make advances nnder the Line of
Credit and (ii) snpersedes any provisions of the Loan Documents to the extent inconsistent herewith.
NOW, THEREFORE, with the foregoing background deemed incorporated by reference and made a part hereof,
the parties hereto, intending to be legally bound, covenant and agree as follows:
1. DEFINITIONS. For purposes of this Sweep Rider the following terms shall have the following meanings:
(i) "Available Investment Amount" means the amount by which the Final Available Balance exceeds
the Target Balance.
(ii) "Business Day" means any day other than (a) a Saturday or Sunday or (b) a legal holiday on which
commercial banks are authorized or required to be closed for business in Pittsburgh, Pennsylvania; provided
that, when used in connection with an amount that bears interest at a rate based on SOFR (as defined below)
or any direct or indirect calculation or determination of SOFR, the teim "Business Day" means any such
day tbat is also a U.S. Government Securities Bnsiness Day.
(iii) "Final Available Balance" means the collected balance in the DDA after all items have been
posted for the Business Day.
(iv) "Money Market Mutual Fund" means the money market mutual fund described on the Schedule;
provided that, following BoJTower's written request, the money market mutual fund selected may be
changed with the consent of Bank and BoJTower.
(v) "PNC Daily Interest Sweep" means funds held in a deposit account at a PNC Bank, National
Association branch which earn interest at a rate determined by Bank from time to time, in its sole discretion.
The interest rate earned is based upon the amount on deposit, is not tied to any external rate or index and
does not necessarily reflect the highest rate of interest offered by Bank to any paiticular class or category
of customers.
(vi) "U.S. Government Securities Business Day" means any day except for (a) a Saturday or Sunday
or (b) a day on which the Securities lndustly and Financial Markets Association recommends that the fixed
Form 24B-S - Multistate Rev. 6/22
!23962282-3 |
| income depmtments of its members be closed for the entire day for purposes of trading in United States
government securities.
Capitalized te1ms used herein and not otherwise defined shall have the meanings given to those terms in the
Schedule.
2. TRANSFER INSTRUCTIONS. During the term of this Sweep Rider, the following instructions from
Borrower to Bank shall apply to transfers of assets by Bank from Borrower's checking account (the "DDA") listed
on the Schedule set forth at the end of this Sweep Rider (the "Schedule") to the investment option selected by
Bonower from time to time (the "Investment"), if any, currently either the Money Market Mutual Fund or the PNC
Daily Interest Sweep. The initial Investment selection is listed on the Schedule. Borrower may change the selected
Investment from time to time upon written notice to Bank.
At the close of each Business Day, Bank will review the activity in the DDA and will make transfers as follows:
Transfers from the DDA:
(A) If the Fiual Available Balance is positive and there is an outstanding principal balance under the
Line of Credit, Bank will debit the DDA and repay the outstanding principal balance under the Line
of Credit as set fotth in Section 4 of this Sweep Rider.
(B) If there is no outstanding principal balance under the Line of Credit (whether as a result of a
payment in accordance with Section 4 of this Sweep Rider or otherwise), then:
(i) if the selected Investment is the Money Market Mutual Fund and the Available Investment
Amount is equal to or exceeds the Minimum Transfer Amount set fotth on the Schedule,
Bank will debit the Available Investment Amount from the DDA and will transmit the
Available Investment Amount to the Money Market Mutual Fund on the next Business
Day. Any funds transferred to the Money Market Mutual Fund will not be returned to the
DDA until needed in the DDA, and the minimum amount that will be returned from the
Money Market Mutual Fund to the DDA is the Minimum Transfer Amount; and
(ii) if the selected Investment is the PNC Daily Interest Sweep and the Available Investment
Amount is equal to or exceeds the greater of $100,000 or the Minimum Transfer Amount
set fotth on the Schedule, Bank will debit the Available Investment Amount from the DDA
and will transmit the Available Investment Amount to the PNC Daily Interest Sweep on
the same Business Day. All funds in the PNC Daily Interest Sweep will be returned to the
DDA at the beginning of the next Business Day; and
(iii) if no Investment is selected, then no additional transfer from the DDA will be made.
Transfers to the DDA:
(C) If the Final Available Balance is less than the Target Balance by at least the amount of the Minimum
Transfer Amount, and the Investment is held in a Money Market Mutual Fund, Bank will direct a
redemption and transfer from the Investment to the DDA, to the extent available, in an amount
equal to the difference between the Target Balance and the Final Available Balance (the "Credit
Amount").
(D) If the Final Available Balance is less than zero dollars ($0), after making all available transfers
from the Investment, Bank will make an advance under the Line of Credit in an amount equal to
the lesser of ( a) the amount necessary to bring the balance in the DDA to zero dollars ($0), and (b)
- 2 -
Form 24B-S - Multistate Rev. 6/22
123962282-3 |
| the amount, if any, available under the Line of Credit. All advances under the Line of Credit shall
be evidenced by the Note and shall be deposited into the DDA.
Borrower acknowledges and agrees that Bank shall have a reasonable period of time to implement the sweep feahl!'e
set fmth in this section and to implement any changes in the selected Invest.men! initiated by Borrower.
3. INTEREST. Effective as of the date hereof, Bank has agreed that loans made by Bank under the Line of
Credit shall bear interest at a variable rate per annum equal to the sum of (A) Daily SOFR plus (B) an unadjusted
spread of the Applicable SOFRMargin plus (C) a SOFR adjustment often (10) basis points (0.10%).
"Applicable SOFR Margin" shall mean the percent per annum equal to the amount set forth under the
applicable column opposite the Total Funded Debt to EBITDA ratio set forth below as shown on the last compliance
certificate delivered to the Bank pursuant to the Loan Documents prior to such date:
Level Total Funded Debt to EBITDA ratio Applicable SOFF
Margin*
I Less than 2.50 to 1.00 1.5%
II
Greater than or equal to 2.50 to 1.0( 2.0% and less than 3.00 to 1.00
III Greater than or equal to 3.00 to 1.0( 2.5%
* The Applicable SOFR Margin will be adjusted by Bank on a quatterly basis as necessary on the first
Business Day of each calendar month following submission to Bank of the Borrower's Financial Statements as
required pursuant to the Loan Documents and the compliance certificate required in connection therewith; provided,
however, if Borrower does not deliver either its Financial Statements or such compliance certificate by the date
required pursuant to the Loan Documents, the Applicable SOFR Margin will automatically be adjusted on the first
Business Day of the month following the due date for such Financial Statements to the highest Applicable SOFR
Margin and will stay at such rate until the first Business Day following the month in which such Financial
Statements are actually delivered. The Applicable SOFR Margin to be applied until receipt of the Borrower's next
compliance cettificate shall be at Level III.
All calculations of interest on the Line of Credit will be computed on the basis of a year of 360 days and paid on
the actual number of days elapsed.
Bank shall have the right to make any technical, administrative or operational changes from time to time that Bank
decides may be appropriate to reflect the adoption and implementation of SOFR or any other Benchmark ( as defined
in the Benchmark Replacement Addendum attached to this Sweep Rider and incorporated herein by this reference)
or to permit the use and administration thereof by Bank in a manner substantially consistent with market practice
or in such other manner as Bank decides is reasonably necessary. Notwithstanding anything to the contrary herein
or in any other Loan Document, any amendments implementing such technical, administrative or operational
changes will become effective without any finther action or consent of Borrower. Bank shall provide notice to
Borrower of any such amendment reasonably promptly after such amendment becomes effective.
If the applicable interest rate under this Sweep Rider is based on a Benchmark and Bank detennines (which
detennination shall be final and conclusive) that (A) such Benclnnark cannot be determined pursuant to its definition
other than as a result of a Benclnnark Transition Event (as defined in the Benchmark Replacement Addendum), or .
(B) any enactment, promulgation or adoption of or any change in any applicable law, rule or regulation, or any
change in the interpretation or administration thereof by a governmental authority, central bank or comparable
- 3 -
Form 24B-S - Multistate Rev. 6/22
123962282-3 |
| agency charged with the interpretation or administration thereof, or compliance by Bank with any guideline, request
or directive (whether or not having the force of law) of any such authority, central bank or comparable agency shall
make it unlawful or impracticable for Bank to make or maintain or fund loans based on that Benclunark, then Bank
shall give notice thereof to Bon-ower. Thereafter, until Bank notifies Bon-ower that the circumstances giving rise
to such dete1mination no longer exist, (a) the availability of any loans bearing interest based on that Benchmark
shall be suspended, and (b) the interest rate for all amounts outstanding under the Line of Credit shall be equal to
the Alternate Rate.
The Benclunark Replacement Addendum provides a mechanism for detennining an alternative rate of interest in
the event that a Benclunark Transition Event (as defined in the Benclunark Replacement Addendum) has occurred.
Bank does not warrant or accept any responsibility for and shall not have any liability with respect to, the
administration, submission or any other matter related to the Benclunark. To the extent that any term or provision
of the Benclunark Replacement Addendum is or may be inconsistent with any te1m or provision in the remainder
of this Sweep Rider or any other Loan Document, the terms and provisions of the Benchmark Replacement
Addendum shall control.
For purposes of this Sweep Rider,
"Alternate Rate" means the rate per annum equal to the Base Rate.
"Base Rate" means the higher of (i) the Prime Rate and (ii) the sum of the Overnight Bank Funding Rate
plus fifty (50) basis points (0.50%); provided, however, if the Base Rate as determined above would be less
than zero, then such rate shall be deemed to be zero. If and when the Base Rate as determined above
changes, the rate of interest with respect to any advance bearing interest at a rate based on the Base Rate
will change automatically without notice to Borrower, effective on the date of any such change.
"Daily lM SOFR" means, for any day, the interest rate per annum determined by the Bank by dividing
(the resulting quotient rounded npwards, at the Bank's discretion, to the nearest 1/100th of 1 %) (A) the
Term SOFR Reference Rate for such day for a one-month period, as published by the Term SOFR
Administrator, by (B) a number equal to 1.00 minus the SOFR Reserve Percentage; provided that if Daily
lM SOFR, detennined as provided above, would be less than the Floor, then Daily 1 M SOFR shall be
deemed to be the Floor. The rate of interest will he adjusted automatically as of each Business Day based
on changes in Daily lM SOFR without notice to the Borrower.
"Daily Simple SOFR" means, for any day ( a "SOFR Rate Day"), the interest rate per amrnm detennined
by Bank by dividing (the resulting quotient rounded upwards, at Bank's discretion, to the nearest 1/l00th
of 1 %) (A) SOFR for the day (the "SOFR Determination Date") that is 2 Business Days prior to (i) such
SOFR Rate Day if such SOFR Rate Day is a Business Day or (ii) the Business Day immediately preceding
such SOFR Rate Day if such SOFR Rate Day is not a Business Day, by (B) a number equal to 1.00 minus
the SOFR Reserve Percentage, in each case, as such SOFR is published by the NYFRB ( or a successor
administrator of the secured overnight financing rate) on the website of the NYFRB, cun-ently at
http://www.newyorkfed.org, or any successor source identified by the NYFRB or its successor
administrator for the secured overnight financing rate from time to time. If Daily Simple SOFR as
determined above would be less than the Floor, then Daily Simple SOFR shall be deemed to be the Floor.
If SOFR for any SOFR Determination Date has not been published or replaced with a Benclunark
Replacement by 5:00 p.m. (Pittsburgh, Pennsylvania time) on the second Business Day immediately
following such SOFR Determination Date, then SOFR for such SOFR Determination Date will be SOFR
for the first Business Day preceding sneh SOFR Dete1mination Date for which SOFR was pnblished in
accordance with the definition of "SOFR"; provided that SOFR detennined pursuant to this sentence shall
be used for purposes of calculating Daily Simple SOFR for no more than 3 consecutive SOFR Rate Days.
If and when Daily Simple SOFR as dete1mined above changes, any applicable rate of interest based on
Daily Simple SOFR will change automatically without notice to Borrower, effective on the date of any such
change.
- 4 -
Form 24B-S - Multistate Rev. 6/22
123962282-3 |
| "Daily SOFR" means Daily IM SOFR.
"Floor" means a rate of interest per annum equal to zero.
"NYFRB" means the Federal Reserve Bank of New York.
"Overnight Bank Funding Rate" means, for any day, the rate comprised of both overnight federal funds
and overnight eurocurrency borrowings by U.S.-managed banking offices of depository institutions, as such
composite rate shall be determined by the NYFRB, as set fmth on its public website from time to time, and
as published on the next succeeding Business Day as the overnight bank funding rate by the NYFRB ( or
by such other recognized electronic source (such as Bloomberg) selected by Bank for the purpose of
displaying such rate); provided, that if such day is not a Business Day, the Overnight Bank Funding Rate
for such day shall be such rate on the immediately preceding Business Day: provided, fmther, that if such
rate shall at any time, for any reason, no longer exist, a comparable replacement rate determined by Bank
at such time (which determination shall be conclusive absent manifest error). If the Overnight Bank
Funding Rate dete1mined as above would be less than zero, then such rate shall be deemed to be zero. The
rate of interest charged shall be adjusted as of each Business Day based on changes in the Overnight Bank
Funding Rate without notice to Borrower.
"Prime Rate" means the rate publicly announced by Bank from time to time as its prime rate. The Prime
Rate is determined from time to time by Bank as a means of pricing some loans to its borrowers. The Prime
Rate is not tied to any external rate of interest or index and does not necessarily reflect the lowest rate of
interest actually charged by Bank to any particular class or categoty of customers.
"SOFR" means a rate equal to the secured overnight financing rate as administered by the NYFRB ( or a
successor administrator of the secured overnight financing rate).
"SOFR Reserve Percentage" means, for any day, the maximum effective percentage in effect on such day,
if any, as prescribed by the Board of Governors of the Federal Reserve System ( or any successor) for
determining the reserve requirements (including, without limitation, supplemental, marginal and
emergency reserve requirements) with respect to SOFR funding.
"Term SOFR Administrator" means CME Group Benchmark Administration Limited (CBA) ( or a
successor administrator of the Term SOFR Reference Rate selected by the Bank in its reasonable
discretion).
"Term SOFR Reference Rate" means the forward-looking term rate based on SOFR.
4. PAYMENTS. Interest will be due and payable on or about the first day of each month and will be charged
to the DDA. All fees and expenses due to Battle will be charged to the DDA. If there are insufficient funds in the
DDA to pay interest and/or the fees and expenses due, Bank shall, on behalf of Borrower, make an advance under
the Line of Credit to the extent Borrower has availability thereunder. Otherwise, any unpaid interest and fees and
expenses will be immediately due and payable by Bmrnwer. At the end of any Business Day, any Final Available
Balance in the DOA shall be automatically applied to the repayment of the outstanding principal balance under the
Line of Credit.
5. EVENT OF DEFAULT. Pursuant to the terms of the Loan Documents, Bank will not be obligated to
make any advance under the Line of Credit if any Event of Default ( as defined in the Loan Documents) or event
which, with the passage of time, provision of notice or both, would constitute an Event of Default shall have
occurred and be continuing.
- 5 - Form 24B-S - Multistate Rev. 6/22
123962282-3 |
| 6. STATEMENTS; SECURITY INTEREST. All transfers between the DDA and the Investment will be
shown on the monthly statement for the DDA. Investment balances will be shown on a separate monthly statement.
Dividends paid by the Money Market Mutnal Fund will be credited to the DDA account. Interest earned on the
PNC Daily Interest Sweep will be credited to the DDA on the following Business Day. Bank shall have, with
respect to Bon-ower's obligations to Bank and to the extent pennitted by law, a contractual possessory security
interest in and a contractnal right of setoff against, and Borrower hereby assigns, conveys, delivers, pledges and
grants a security interest to Bank in all of Borrower's right, title and interest in and to, all of Borrower's deposits,
moneys, securities and other investment property now or hereafter in the possession of or on deposit with, or in
transit to, the Investment, Bank or any direct or indirect subsidiary of The PNC Financial Services Group, Inc.
Upon written direction from Bank, and without further consent from Borrower, the custodian for the Investment is
authorized to comply with all entitlement orders, instructions and directions of any kind originated by Bank
concerning the Investment.
7. INVESTMENTS; LIMITATION OF LIABILITY. Bank has forwarded to Borrower all required
investment disclosures for the Investment, including the prospectns for the Money Market Mutual Fund, if
applicable, and Bo1rnwer has selected such Investment. Borrower acknowledges receipt of the prospectus and other
disclosures for the Money Market Mutnal Fund, if applicable, and further acknowledges that Bank has not provided
any advice or recommendations of any kind with respect to the selection of the Money Market Mntual Fund.
Borrower acknowledges that the provision of the services outlined in this Sweep Rider does not create a fidnciary
relationship between Borrower and Bank. Bo1rnwer represents to Bank that it has all necessary authority to invest
in the Investment selected. All Investment selections are made at Bmrnwer' s own risk and are without recourse to
Bank. The Investment involves investment risk, including possible loss of principal amount invested and the other
risks described in the Disclosure included in this Sweep Rider. Bank and its affiliates may provide investment
advisory and other services to or for the Money Market Mutual Fund and, if such services are provided, shall be
compensated for such services. Bank may vote any proxy received with respect to the Money Market Mutnal Fund,
in its sole discretion, including voting to change fees paid by the Money Market Mutual Fund to Bank or its
affiliates. Battle may revise the Investment options available from time to time upon notice to Bmrnwer.
In performing services hereunder, Bank will be governed by a standard of ordinary care. Bank shall not be liable
for any actions of the transfer agent, custodian or distributor of the Money Market Mutual Fund or any other third
party. In any event, Bank shall not be liable for any indirect, consequential, incidental, punitive, exemplary or
special losses, damages or expenses (including counsel fees) which Borrower may incur or suffer, whether or not
the possibility or likelihood of such damage was known or contemplated by Bank. In no event will Bank be liable
for its inability to perfonn its obligations hereunder if such inability arises out of causes beyond its reasonable
control.
8. TERMINATION. This Sweep Rider may be tenninated by either party upon written notice to the other.
Notwithstanding the prior sentence, this Sweep Rider may be immediately terminated by Bank without notice upon
(i) the filing by or against Borrower of any proceeding in bankruptcy, receivership, insolvency, reorganization,
liquidation, conservatorship or similar proceeding ( and in the case of any such proceeding instituted against
Borrower, such proceeding is not dismissed or stayed within thirty (30) days of the commencement thereof,
provided that Bank shall not be obligated to advance additional funds during such period); or (ii) any assignment
by Bmrnwer for the benefit of creditors, or any levy, garnishment, attachment or similar proceeding is instituted
against any property of Borrower held by or deposited with Bank.
If this Sweep Rider is terminated, Bank shall in its discretion (i) direct the redemption of all Money Market
Mutual Fund balances and (ii) transfer all funds in the Investment to the DDA to cover any negative balance in the
DDA and to repay alllounts owed under the Line of Credit, in such order as Bank may detennine. Following such
transfer from the Investment, the transfer instructions set forth in Section 2 of this Sweep Rider and all other
provisions stated herein shall no longer apply, and the terms of the Loan Documents (without giving effect
to this Sweep Rider) shall thereafter govern the Line of Credit.
- 6 -
Form 24B-S - Multistate Rev. 6/22
123962282-3 |
| 9. FEES. Bank's monthly fee for its services relating to this Sweep Rider is set forth on the Schedule. Such
fee may be modified by Bank from time to time upon written notice to Borrower. Bank may be separately and
additionally compensated or may derive profit in connection with the Investment.
10. MISCELLANEOUS. No modification, amendment or waiver of, or consent to any departure by Borrower
from, any provision of this Sweep Rider will be effective unless made in a writing signed by Bank, and then such
amendment, waiver or consent shall be effective only in the specific instance and for the purpose for which given.
Notwithstanding the foregoing, Bank may modify this Sweep Rider for the purposes of completing missing content
or conecting erroneous content, without the need for a written amendment, provided that Bank shall send a copy of
any such modification to B01rnwer (which notice may be given by electronic mail). No delay or omission on Bank's
part to exercise any right or power arising hereunder will impair any such right or power or be considered a waiver
of any such right or power, nor will Bank's action or inaction impair any such right or power. If any provision
contained in this Sweep Rider should be invalid, illegal or unenforceable in any respect, it shall not affect or impair
the validity, legality and enforceability of the remaining provisions. This Sweep Rider may be signed in any number
of counterpatt copies and by the patties hereto on separate counterpatts, but all such copies shall constitute one and
the same instrument.
11. NOTICES; ELECTRONIC SIGNATURES AND RECORDS. All notices, disclosures, statements,
demands, requests, consents, approvals and other communications required or petmitted hereunder ("Notices")
must be in writing (except as otherwise provided in this Sweep Rider or in the other Loan Documents). Notices
may be given in any manner to which the patties may agree. Without limiting the foregoing, first-class mail, postage
prepaid, facsimile transmission and commercial courier service are hereby agreed to as acceptable methods for
giving Notices. In addition, the parties agree that Notices may be sent electronically to any electronic address
provided by a party from time to time or tlu·ough an automated platfonn that Bank provides to Borrower. Notices
will be effective upon receipt. For purposes hereof, "receipt" means: (i) for notices sent by U.S. mail, the third
business day after the date such notice was sent; (ii) for notices delivered by hand or sent by overnight courier
service, the date delivered; (iii) for notices sent by facsimile or electronic communication, the date when sent; and
(iv) for notices sent by any other method, the date received. Bonower agrees that this Sweep Rider, the other Loan
Documents, any amendments thereto, and any other information, notice, signature card, agreement or authorization
related thereto (each, a "Communication") may, at Bank's option, be in the form of an electronic record. Any
Communication may, at Bank's option, be signed or executed using electronic signatures. For the avoidance of
doubt, the authorization under this section may include, without limitation, use or acceptance by Bank of a manually
signed paper Communication which has been converted into electronic fonn (such as scanned into PDF format) for
transmission, delivery and/or retention.
12. ENTIRE AGREEMENT. This Sweep Rider and the Loan Documents and all of the documents and
instruments referenced therein constitute the entire agreement and supersede all other prior agreements and
understandings, both written and oral, between the patties with respect to the subject matter hereof.
13. SUCCESSORS AND ASSIGNS. This Sweep Rider will be binding upon and inure to the benefit of
Borrower and Bank and their respective heirs, executors, administrators, successors and assigns; provided, however,
that Borrower may not assign this Sweep Rider in whole or in part without Bank's prior written consent; and Bartle
may, at any time, assign any of its rights and obligations under this Sweep Rider in whole or in patt.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
- 7 -
Form 24B-S - Multistate Rev. 6/22
123962282-3 |
| WITNESS the due execution hereof as a document under seal, as of the date first written above, with the
intent to be legally bound hereby.
BANK:
PNC BANK, NATIONAL ASSOCIATION
Disclosure:
FDIC regulations require banks to make certain disclosures to their customers (refe1Ted to herein as "Bo1Tower" or "you") who use sweep services to
move funds from a deposit account to another deposit account or to a non-deposit investment vehicle. The purpose of this communication is to inform
you whether your funds subject to sweep mrnngements are deposits covered by FDIC deposit insurance or, if not, what the status of your funds would
be if the Bank failed.
You use the Bank's Line of Credit Sweep service, which sweeps funds from your Bank demand deposit account to pay down your loan with the Bartle
In the event of the failure of the Bank, the FDIC would treat the sweep transaction for that day as having been completed. If funds were swept from your
demand deposit account to your loan account, the FDIC would recognize the credit to reduce the amount of your loan. If you use the Investment Sweep
feature with your Line of Credit Sweep service, shown below are the disclosures for the investment sweep vehicle you arc using, explaining whether or
not your funds would be deposits covered by FDIC insurance.
If you use the PNC Daily Interest Sweep with your Line of Credit Sweep service:
You use the PNC Daily Interest Sweep Investment Sweep feature with your PNC Bank Line of Credit Sweep service, which sweeps funds from your
Bank demand deposit account to a domestic deposit account with the Bank and is FDIC insured to the legal limit. The balance of the PNC Daily Interest
Sweep shall be determined by adding amounts credited to the PNC Daily Investment Sweep, less the amounts deducted from the PNC Daily Investment
Sweep during the applicable time period.
If you use a money market mutual fund with your Line of Credit Sweep service:
You use the PNC Bank Sweep Investment service with your PNC Bank Line of Credit Sweep service, which sweeps funds from your Bank demand
deposit account to a money market mutual fund. Investors should carefully consider the investment objectives, risks and fees of the money market
mutual fund carefully before investing. The applicable money market mutual fund prospectus should be read carefully before investing. Funds in a
money market mutual fund are not deposits and are not guaranteed or insured by the FDIC, the U.S. Government or any bank, including Bank. With the
Sweep Investment service to a money market mutual fund, funds swept from your demand deposit account on a given day are not transferred to the
money market mutual fund until the next banking day. In the event of the failure of the Bank, the FDIC would treat the sweep transaction for that day
as not having been completed. In that case, your funds would ·be treated as remaining in your demand deposit account and the funds would be coVered
by FDIC insurance to the maximum amount provided by law.
- 9 -
Form 24B-S - Multistate Rev. 6/22
123962282-3 |
| Benchmark Replacement Addendum
Notwithstanding anything to the contraty herein or in any other Loan Document, if Bank determines (which
determination shall be final and conclusive) that a Benchmark Transition Event has occurred with respect to a
Benchmark, Bank may amend this Sweep Rider to replace such Benchmark with a Benchmark Replacement ( as
defined below); and any such amendment shall be in writing, shall specify the date that the Benchmark Replacement
is effective and will not require any futiher action or consent of Borrower. Until the Benchmark Replacement is
effective, amounts bearing interest with reference to a Benchmark will continue to bear interest with reference to
such Benchmark as long as such Benchmark is available, and otherwise such amounts automatically will bear
interest at the Alternate Rate.
For purposes of this Addendum, the following tenns have the meanings set fotih below:
"Benchmark" means, at any time, any interest rate index then used in the determination of an interest rate
nnder the terms of this Sweep Rider. Once a Benchmark Replacement becomes effective under this Sweep
Rider, it is a Benchmark.
"Benchmark Replacement" means, for any Benchmark, the sum of (a) an alternate benchmark rate and
(b) an adjustment (which may be a positive or negative value or zero), in each case that has been selected
by Bank as the replacement for such Benchmark giving due consideration to any evolving or then-prevailing
market convention, including any applicable recommendations made by the official sector or any official
sector-sponsored committee or working group, for U.S. dollar-denominated credit facilities at such time;
provided that, if the Benchmark Replacement as detetmined pursuant to the foregoing would be less than
the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Sweep Rider
and the other Loan Documents.
"Benchmark Transition Event" means a public statement or publication by or on behalf of the
administrator of a Benchmark, the regulatoty supervisor of such administrator, the Board of Governors of
the Federal Reserve System, NYFRB, an insolvency official or resolution authority with jurisdiction over
the administrator for such Benchmark or a court or an entity with similar insolvency or resolution authority
over the administrator for such Benchmark, announcing or stating that (a) such administrator has ceased or
will cease to provide such Benchmark permanently or indefinitely, provided that at the time of such
statement or publication there is no successor administrator that will continue to provide such Benchmark
or (b) such Benclnnark is or will no longer be representative.
Rl (SOFR STD 2021 (notice))
Streamlined
123962282-3
Form 24B-S - Multistate Rev. 6/22 |
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