Joinder Agreement, dated October 30, 2023, between AeroVironment, Inc. and Bank of America, N.A
Exhibit 10.2
EXECUTION VERSION
JOINDER AGREEMENT
THIS JOINDER AGREEMENT (this “Agreement”), dated as of October 30, 2023, is by and between Tomahawk Robotics, Inc., a Delaware corporation (the “New Subsidiary”), and Bank of America, N.A., in its capacity as the Administrative Agent under that certain Credit Agreement, dated as of February 19, 2021 (as amended, restated, amended and restated, extended, supplemented or otherwise modified from time to time, the “Credit Agreement”; the terms defined therein being used herein as therein defined), by and among the AeroVironment, Inc., a Delaware corporation, the Guarantors party thereto, the Lenders from time to time party thereto, Bank of America, N.A., as the Administrative Agent, the Swingline Lender, and an L/C Issuer, and the other L/C Issuers party thereto.
The Loan Parties are required by Section 6.12 of the Credit Agreement to cause the New Subsidiary to become a Guarantor. Accordingly, the New Subsidiary hereby agrees as follows with the Administrative Agent, for the benefit of the Secured Parties:
1.The New Subsidiary hereby acknowledges, agrees and confirms that, by its execution of this Agreement, the New Subsidiary will be deemed to be a party to the Credit Agreement and a “Guarantor” for all purposes of the Credit Agreement, and shall have all of the obligations of a Guarantor thereunder as if it had executed the Credit Agreement. The New Subsidiary hereby ratifies, as of the date hereof, and agrees to be bound by, all of the terms, provisions and conditions applicable to the Guarantors contained in the Credit Agreement. Without limiting the generality of the foregoing terms of this paragraph 1, the New Subsidiary hereby jointly and severally together with the other Guarantors, guarantees to each Secured Party, as provided in Article X of the Credit Agreement, the prompt payment when due, whether at stated maturity, by required prepayment, upon acceleration, demand or otherwise, and at all times thereafter, of any and all Secured Obligations strictly in accordance with the terms thereof.
2.The New Subsidiary hereby acknowledges, agrees and confirms that, by its execution of this Agreement, the New Subsidiary will be deemed to be a party to the Security Agreement, and shall have all the obligations of an “Obligor” (as such term is defined in the Security Agreement) thereunder as if it had executed the Security Agreement. The New Subsidiary hereby ratifies, as of the date hereof, and agrees to be bound by, all of the terms, provisions and conditions contained in the Security Agreement. Without limiting generality of the foregoing terms of this paragraph 2, the New Subsidiary hereby grants to the Administrative Agent, for the benefit of the Secured Parties, a continuing security interest in, and a right of set off against, any and all right, title and interest of the New Subsidiary in and to the Collateral (as such term is defined in the Security Agreement) of the New Subsidiary.
3.The New Subsidiary hereby represents and warrants to the Administrative Agent, for the
benefit of the Secured Parties, that:
(a)Set forth on Schedule 1 attached hereto is complete and accurate list as of the date hereof of (i) each Subsidiary, joint venture and partnership and other equity investments of the New Subsidiary, (ii) the number of shares of each class of Equity Interests in each such Subsidiary outstanding, (iii) the number and percentage of outstanding shares of each class of Equity Interests of such Subsidiary owned by the New Subsidiary and its Subsidiaries, and (iv) the class or nature of such Equity Interests (i.e. voting, non-voting, preferred, etc.).
(b)Set forth on Schedule 2 attached hereto is a complete and accurate list as of the date hereof of the New Subsidiary’s (i) exact legal name, (ii) any former legal names in the four (4) months prior to the Closing Date, (iii) jurisdictions in which such Loan Party is qualified to do
business, (iv) address of its chief executive office address (and address of its principal place of business address if different than its chief executive office), (v) U.S. federal taxpayer identification number, and (vi) organization identification number.
(c)Set forth on Schedule 3 attached hereto is a list of all Intellectual Property registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and owned by the New Subsidiary as of the date hereof. As of the date hereof, none of the Intellectual Property owned by the New Subsidiary or any of its Subsidiaries is subject to any licensing agreement or similar arrangement (other than non-exclusive outbound licenses entered into in the ordinary course of business) except as set forth on Schedule 3 attached hereto.
(d)Set forth on Schedule 4 attached hereto, as of the date hereof, is a description of all deposit accounts and securities accounts of the New Subsidiary, including (i) in the case of a deposit account, the name of the depository institution and balance (as of the date hereof), held in such deposit account and whether such account is an Excluded Account, and (ii) in the case of a securities account, the name of the securities intermediary or issuer and the aggregate market value (as of the date hereof) held in such securities account.
(e)Set forth on Schedule 5 attached hereto is a list of all real property located in the United States that is owned or leased by the New Subsidiary as of the date hereof (in each case, including (i) the number of buildings located on such property, (ii) the property address, and (iii) the city, county, state and zip code which such property is located.
(f)Set forth on Schedule 6 attached hereto is a list of all Commercial Tort Claims (as defined in the Security Agreement) initiated by or in favor of the New Subsidiary seeking damages in excess of $1,000,000 as of the date hereof.
(g)Set forth on Schedule 7 attached hereto is a list of all Instruments, Documents or Tangible Chattel Paper (each as defined in the Security Agreement) of the New Subsidiary required to be pledged and delivered to the Administrative Agent pursuant to Section 4(a) of the Security Agreement.
(h)Except as set forth on Schedule 8 attached hereto, the New Subsidiary has not (i) been party to a merger, consolidation or other change in structure, (ii) used any tradename, or (iii) changed its legal name, in each case, in the five (5) years prior to the date hereof.
4.The address of the New Subsidiary for purposes of all notices and other communications is the address designated for all Loan Parties on Schedule 1.01(a) to the Credit Agreement or such other address as the New Subsidiary may from time to time notify the Administrative Agent in writing.
5.The New Subsidiary hereby waives acceptance by the Administrative Agent and the other Secured Parties of the guaranty by the New Subsidiary under Article X of the Credit Agreement upon the execution of this Agreement by the New Subsidiary.
6.This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this Agreement by fax transmission or e-mail transmission (e.g., “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Agreement. Subject to Section 11.18 of the Credit Agreement, this Agreement may be in the form of an Electronic Record and may be executed using Electronic Signatures, including
facsimile and .pdf, and shall be considered an original, and shall have the same legal effect, validity and enforceability as a paper record.
7.THIS AGREEMENT AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
[signature pages follow]
IN WITNESS WHEREOF, the New Subsidiary has caused this Agreement to be duly executed by an authorized officer, and the Administrative Agent has caused the same to be accepted by an authorized officer, in each case, as of the day and year first written above.
| TOMAHAWK ROBOTICS, INC. | |
| | |
| By: | /s/ Bradley Truesdell |
| Name: Bradley Truesdell | |
| Title: President and Chief Executive Officer | |
| | |
| Acknowledged and accepted: | |
| | |
| BANK OF AMERICA, N.A., | |
| | |
| By: | |
| Name: | |
| Title: | |
[Signature Page to Joinder Agreement]
| Acknowledged and Accepted: | |||
| | |||
| BANK OF AMERICA, N.A., | |||
| as the Administrative Agent | |||
| | |||
| By: | /s/ Rose Thomas | ||
| Name: Rose Thomas | | ||
| Title: AVP Agency Management Officer II | |||
[Signature Page to Joinder Agreement]
Schedule 1
Subsidiaries, Joint Ventures, Partnerships and Other Equity Investments
None.
Schedule 2
New Subsidiary Information
Name | Former Legal | Jurisdictions | Chief | US Federal | Organization |
Tomahawk Robotics, Inc. | N/A | Delaware, | 2326 Irwin | 83 ###-###-#### | 7066184 |
Schedule 3
Intellectual Property
Trademarks
Mark | Serial Number | Filing Date | Registration Number | Registration |
| 88215764 | 12/04/2018 | 6185761 | 10/27/2020 |
| 88215775 | 12/04/2018 | 6522848 | 10/29/2021 |
Patents
Title | Status | Application Number(s) |
SYSTEMS AND METHODS OF | USPTO - Filed and awaiting results | PCT/US2019/069141 |
SYSTEMS AND METHODS OF | USPTO - Filed and awaiting results | PCT/US2019/069148 |
SPATIAL TELEOPERATION OF LEGGED | USPTO - Filed and awaiting results | PCT/US2019/069159 |
COMMON CONTROL | USPTO - Filed and awaiting results | US 17/571,305 |
COMMON CONTROL | USPTO - Filed and awaiting results | US 17/571,217 |
ARCHITECTURE FOR | USPTO - Filed and awaiting results | US 17/702,669 |
INERTIALLY ISOLATED SPATIAL | USPTO - Received Notice of | US 17/720,130 |
CLASSIFICATION | USPTO - Filed and awaiting results | US 17/571,081 |
STABILIZATION OF PROJECTED | USPTO - Filed and awaiting results | US 17/930,399 EP Not filed yet |
POINT-OF-INTEREST TRACKING AND | USPTO - Filed and awaiting results | US 18/350,722 |
FROM UNMANNED SYSTEM | | |
LAYERED FAIL-SAFE | USPTO - Filed and awaiting results | US 18/353,866 |
INERTIALLY ISOLATED SPATIAL | USPTO - Filed and awaiting results | US 18/311,370 |
COMPUTER VISION CLASSIFIER | USPTO - Filed and awaiting results | US 18/446,450 |
UNIVERSAL EXTERNAL | Draft patent claims in progress | Not filed yet |
UNIVERSAL CAMERA CONTROL | Draft patent claims in progress | Not filed yet |
UNIVERSAL CAMERA CONTROL | Draft patent claims in progress | Not filed yet |
END USER DEVICE CAMERA | Draft patent claims in progress | Not filed yet |
AUTONOMOUS PATH PLANNING | Draft patent claims in progress | Not filed yet |
POINT OF INTEREST TRACKING | Draft patent claims in progress | Not filed yet |
MOTION PLANNING USING | Draft patent claims in progress | Not filed yet |
RANDOMIZED MOVEMENT | Draft patent claims in progress | Not filed yet |
VIDEO HEURISTIC FOR | Draft patent claims in progress | Not filed yet |
VIDEO HEURISTIC FOR | Draft patent claims in progress | Not filed yet |
SYSTEM AND METHODS FOR | Draft patent claims in progress | Not filed yet |
DYNAMIC NETWORK | | |
COLLISION HANDLING FOR | Draft patent claims in progress | Not filed yet |
PATH COORDINATION FOR | Draft patent claims in progress | Not filed yet |
Schedule 4
Deposit Accounts and Securities Accounts
Deposit Accounts
Depository Institution | Account Number | Name on Account | Balance as of September 30, 2023 | Type of Account |
JPMorgan Chase Bank, N.A. | 937990890 | Tomahawk Robotics, Inc. | $1,397,174 | Operating |
Cypress Bank | 360026259 | Tomahawk Robotics, Inc. | $686,801 | Operating |
Silicon Valley Bank | 3302495858 | Tomahawk Robotics, Inc. | $132,514 | Operating |
Securities Accounts
None.
Schedule 5
Real Properties
1.Lease Agreement dated as of November 1, 2020 and amended December 1, 2020 by and between the New Subsidiary, as lessee, and Deffla, LLC, as lessor, for the premises located at 2326 Irwin Street Melbourne, Florida 32901 with a current monthly rental amount of $8,360.25. One building.
2.New Subsidiary is lessee under the 1333 Lease for the premises located at 1333 N. Harbor City Boulevard Melbourne, Florida 32935 with a current monthly rental amount of $18,270.00. One building.
3.New Subsidiary is lessee under the 660 Penn Ave. Lease for the premises located at 660 Pennsylvania Avenue, S.E. Washington, DC 20003 with a current monthly rental amount of $10,265.50. One building.
Schedule 6
Commercial Tort Claims
None.
Schedule 7
Instruments, Documents and Tangible Chattel Paper
None.
Schedule 8
Merger, Consolidation, Change in Structure;
Tradenames; Change in Legal Name
On September 15, 2023, Tropic Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of the Borrower, merged with and into New Subsidiary, whereupon the separate existence of Tropic Merger Sub, Inc. ceased and New Subsidiary continued its corporate existence under Delaware law as the surviving corporation and a wholly owned subsidiary of the Borrower, pursuant to that certain Agreement and Plan of Merger, dated August 18, 2023.
