Annual report pursuant to Section 13 and 15(d)

Long-Term Debt

v3.19.1
Long-Term Debt
12 Months Ended
Dec. 31, 2018
Debt Disclosure [Abstract]  
LONG-TERM DEBT
5. LONG-TERM DEBT

 

Long-term debt as of December 31, 2018 and 2017 consists of the following:

 

    December 31,
2018
    December 31,
2017
 
Marathon Tranche I Loan, due December 31, 2021, interest only quarterly payments, variable interest rate of 10.4% as of December 31, 2018 (discount is based on warrant valuation of approximately 9.7%)   $ 10,000,000     $ -  
Marathon Credit Agreement unamortized discount and issuance costs     (1,687,921 )     -  
Net Marathon Credit Agreement     8,312,079          
Senior Secured Notes, due July 6, 2018 (discount is based on imputed interest rate of 26%)     -       5,750,000  
Less: unamortized discount and debt issuance costs on Senior Secured Notes     -       (987,500 )
Net Senior Secured Notes     -       4,762,500  
Secured mortgage payable, due November 2026, to Bank for 100 Commerce Drive building, interest rate 6.5%, due in monthly installments of $11,951, inclusive of principal and interest     -       1,741,378  
Note payable, former building owner interest payment only due in monthly installments of $1,604 interest at 5.5%. A balloon payment of $350,000 plus unpaid interest due August 2018.     -       350,000  
      8,312,079       6,853,878  
Less current portion     -       5,143,997  
Long-term debt   $ 8,312,079     $ 1,709,881  

 

Aggregate maturities of long-term debt are as follows:

 

2019     -  
2020     1,000,000  
2021     9,000,000  
2022     -  
2023     -  
Thereafter     -  
      10,000,000  

 

On December 26, 2017, as part of its initial efforts to spin-off Surefly Inc., the Company entered into a Securities Purchase Agreement with several existing institutional investors (the "Spin-Off Investors") pursuant to which the Company issued original issue discount Senior Secured Notes in the aggregate principal amount of $5,750,000 in consideration of gross proceeds of $5,000,000 paid by the Spin-Off Investors. The loan was convertible into Surefly Inc. equity upon achieving the spin-off. On June 28, 2018, the Company entered into an amendment agreement with the Spin-Off Investors. The amendment agreement provided that the Senior Secured Notes were amended to provide a maturity date of July 6, 2018. Upon the closing of the Loan Agreement with Arosa Capital Management LP ("Arosa"), the Company paid off the Senior Secured Notes.

 

Amortization expense recorded as interest related to the debt issuance costs and unamortized discounts for the Senior Secured Notes was $987,500 for the year ended December 31, 2018.

 

On June 7, 2018, the Company received a short-term loan in the aggregate principal amount of $550,000 from Stephen S. Burns, H. Benjamin Samuels, Gerald Budde and Ray Chess, each an executive officer and/or director of the Company (collectively, the "Related Parties"). The Company used the net proceeds from the transaction for general business and working capital purposes. To evidence the loans, the Company issued the Related Parties promissory notes (the "Related Parties Notes") in the aggregate principal amount of $550,000. The Related Parties Notes were unsecured obligations of the Company and were not convertible into equity securities of the Company. Principal and interest under the Related Parties Notes was due and payable December 6, 2018, however, in the event that the Company raised in excess of $10,000,000 in equity financing, then the Company would use part of its proceeds to pay off the Related Parties Notes. Under no circumstance were the Related Parties Notes be paid off on or prior to the 91st day following the maturity date of the Senior Secured Notes issued by the Company on December 27, 2017. Interest accrued on the Related Parties Notes at the rate of 12.0% per annum. The Related Parties Notes contained terms and events of default customary for similar transactions.

 

On July 6, 2018, the Company received a short-term loan in the aggregate principal amount of $500,000 from accredited investors (collectively, the "Loan Parties"), which included Mr. Samuels, a director of the Company. To evidence the loans, we issued the Loan Parties promissory notes (the "Loan Parties Notes") in the aggregate principal amount of $500,000. The Loan Parties Notes were unsecured obligations of the Company and were not convertible into equity securities of our company. Principal and interest under the Loan Parties Notes was due and payable January 5, 2019, however, in the event that the Company raised in excess of $10,000,000 in equity or debt financing, the Company would use a portion of the proceeds to pay off the Loan Parties Notes. Interest accrues on the Loan Parties Notes at the rate of 12.0% per annum. The Loan Parties Notes contained terms and events of default customary for similar transactions.

 

The Related Parties Notes and Loan Parties Notes were paid off following the closing of the August 2018 public offering.

 

On July 6, 2018, the Company, as borrower, entered into a Loan Agreement with a fund managed by Arosa, as lender, providing for a term loan (the "Arosa Loan") in the principal amount of $6,100,000 (the "Loan Agreement"). The maturity date of the Arosa Loan was July 6, 2019 (the "Maturity Date"). The interest rate for the Arosa Loan was 8% per annum payable in quarterly installments and commenced on October 6, 2018. The Company could prepay the Arosa Loan at any time upon three days written notice.

 

The Company used the proceeds from the Arosa Loan to satisfy the Senior Secured Loans and a loan in the amount of $350,000 payable to the former owner of the Company's facility based in Loveland, Ohio.

 

The Loan Agreement required the Company to pay Arosa's expenses including attorney fees. The Loan Agreement also required the Company to make certain representations and warranties and other agreements that are customary in loan agreements of this type and also included covenants to raise $10,000,000 in equity prior to September 30, 2018 and to consummate a sale of Surefly, Inc., the Company's indirect wholly-owned subsidiary resulting in cash proceeds of no less than $20,000,000. The Loan Agreement also contained customary events of default, including non-payment of principal or interest, violations of covenants, bankruptcy and material judgments. The Company's subsidiaries and Arosa also entered into a Guarantee and Collateral Agreement and Intellectual Property Security Agreement providing that the Company's obligations to Arosa were secured by substantially all of the Company's assets. In addition, the Company was required to appoint to the Board of Directors a person designated in writing by Arosa for a period of no less than 12 months.

 

In accordance with the Loan Agreement, the Company issued Arosa a warrant to purchase 5,000,358 shares of common stock of the Company at an exercise price of $2.00 per share exercisable in cash only for a period of five years. While the Arosa Loan remained outstanding, the Company was be required to issue additional warrants to purchase common stock to Arosa equal to 10% of any additional issuance excluding issuances under an approved stock plan. The additional warrants to purchase common stock have an exercise price equal to the lesser of $2.00 or a 5% premium to the price utilized in such financing. Pursuant to the warrant, Arosa may not exercise such warrant if such exercise would result in Arosa beneficially owning in excess of 9.99% of the Company's then issued and outstanding common stock. On August 2, 2018, after conducting additional due diligence on the Company's available collateral base, Arosa agreed to enter into the First Amendment to the Loan Agreement with the Company pursuant to which an additional $1,700,000 was loaned to the Company for working capital purposes and general corporate purposes. In addition, various covenants were added or amended including, but not limited to, requiring the Company to satisfy its Mortgage on its Loveland, Ohio facility no later than October 1, 2018, which we paid off in August 2018 with a payment of $1.85 million.

 

The Company determined that the Arosa Loan and related warrants were freestanding instruments issued together and therefore should be accounted for separately. The Company determined the warrants did not qualify for equity classification and therefore has applied liability treatment to the instruments. The value of the warrants on the date of the Arosa Loan was determined to be $3,540,542, which was determined using the Black-Scholes method and was recorded as a liability with the offset being recorded as a debt discount, which will be amortized into interest expense over the life of the loan. The liability for the warrants, as well as any future warrant issuances, will be marked to marked quarterly in accordance with liability accounting.

 

On August 14, 2018, in accordance with the Loan Agreement, we issued a warrant to acquire 1,143,200 shares of common stock at an exercise price of $1.21 warrants to Arosa following the closing of our public offering on August 13, 2018 and the related over-allotment on August 14, 2018. On October 1, 2018, we issued a warrant to acquire 108,768 shares of common stock at an exercise price of $1.60 warrants to Arosa due to our At The Market ("ATM") offerings that occurred during the third quarter of 2018.

 

On December 31, 2018, the Company entered into a Credit Agreement (the "Credit Agreement"), among the Company, as borrower, Marathon Asset Management, LP, on behalf of certain entities it manages, as lenders (collectively, with their permitted successors and assignees, the "Lenders"), and Wilmington Trust, National Association, as the agent ("Wilmington").  The Credit Agreement provided the Company with a $10 million tranche of term loans (the "Tranche One Loans") which may not be re-borrowed following repayment and (ii) a $25 million tranche of term loans which may be re-borrowed following repayment (the "Tranche Two Loans" together with the Tranche One Loans, the "Loans"). The Company used the proceeds for the Tranche One Loans (x) to pay off a loan provided by Arosa in the principal amount of $7.8 million plus interest and (y) for working capital purposes. Draws from the Tranche Two Loans will be used in connection with vehicle production and are subject to the Company's receipt of purchase orders.

 

In connection with the extinguishment of the Arosa loan, a loss on extinguishment of approximately $2.2 million was recognized and is recorded within interest expense in the accompanying statement of operations for the year ended December 31, 2018.

 

The Company's ability to borrow amounts under the Credit Agreement is conditioned upon its compliance with specified covenants, including certain reporting covenants and financial covenants that, in addition to other items, require the Company to maintain (i) minimum liquidity of at least $4 million at all times on or after March 31, 2019, (ii) a maximum total leverage ratio (ratio of total debt borrowed by the Company to EBITDA for the four consecutive fiscal quarters most recently ended, subject to certain adjustments set forth in the Credit Agreement) not to exceed 4.50:1.00 on the last day of the quarter ended September 30, 2019, which total leverage ratio is adjusted for subsequent quarters as set forth in the Credit Agreement and (iii) a maximum debt service coverage ratio (ratio of EBITDA (for the four consecutive fiscal quarters most recently ended, subject to certain adjustments set forth in the Credit Agreement) to interest expense and payments for operating leases) not to exceed 1.25:1.00 on the last day of the quarter ended September 30, 2019, which debt service coverage ratio is adjusted for subsequent quarters as set forth in the Credit Agreement. In the event the Company breaches the total leverage ratio or the debt service coverage ratio covenants, the Company may cure such breach by raising capital through the sale of equity, which capital will be added on a dollar-for-dollar basis to the calculation of EBITDA for purposes of such test period to determine compliance with the financial covenant. In each consecutive four fiscal quarter period, equity cures can only be made for two fiscal quarters, and only four equity cures are allowed during the term of the Credit Agreement. The capital raised in connection with such equity cure must be used to repay the Loans.

 

In addition, the Credit Agreement contains customary representations and warranties and customary affirmative and negative covenants, including, among others, restrictions on the Company's ability to dispose of property, enter into mergers, acquisitions or other business combination transactions, incur additional indebtedness, grant liens, pay dividends and make certain other restricted payments.

 

The Tranche One Loans, and both the drawn and undrawn portions of the Tranche Two Loan, will bear interest at a rate per annum (based on a year of 360 days) equal to LIBOR (as defined in the Credit Agreement) plus 7.625%, which interest is payable quarterly commencing March 5, 2019.

 

The Credit Agreement contains customary events of default, including for non-payment, misrepresentation, breach of covenants, defaults under other material indebtedness, material adverse change, bankruptcy, change of control and material judgments.

 

The Loans mature on the third anniversary of the closing date. The Company is required to repay a portion of the Tranche One Loans with $500,000 installment payments on each of June 30, 2020, December 31, 2020 and June 30, 2021. Upon the occurrence and during the continuance of an event of default, the Lenders may declare all outstanding amounts thereunder immediately due and payable and may terminate commitments to make any additional advances under the Tranche Two Loans. The Tranche Two Loans are required to be prepaid in an amount equal to the payments received from the subject purchase orders. The Company is also obligated to repay the Loans with a specified percentage of the net cash proceeds the Company receives in connection with certain dispositions of assets, casualty events, incurrences of debt and any issuances of capital stock (other than issuances of capital stock during the first 9 months after closing). The Company is required to prepay the Loans utilizing 100% of the net proceeds from any casualty event or the issuance or incurrence of debt and 50% of the net proceeds from any disposition. If the Company receives net cash proceeds from the issuance of capital stock after the nine-month anniversary of the closing date, the Company is required to prepay the Loans utilizing 35% of the net cash proceeds from such issuance. With limited exceptions, if the Company prepays any portion of the Tranche One Loans or the Tranche Two Loans (with the concomitant termination of the portion of the commitments under the Tranche Two Loans that is repaid) during the 12 months following the closing date, it is required to pay 100% of the interest that would have been due on such prepaid Loans if the prepaid amounts had been outstanding for a period of 12 months after the date of prepayment. If such prepayment occurs during the period beginning after the 12-month anniversary of the closing date and continuing through the 18-month anniversary of the closing date, the Company is required to pay 50% of the interest that would have been due on such prepaid Loans for the 12-month period following the date of such prepayment on a prorated basis.

 

The Company, the Company's subsidiaries and Wilmington, as agent for the Lenders, entered into a Security Agreement, a Pledge Agreement and a Guarantee, among other loan documents, providing that the Company's obligations to the Lenders are secured by a first priority security interest in substantially all of the Company's and its subsidiaries' tangible and intangible assets including the Company's real property located in Loveland, Ohio and Union City, Indiana.

 

For so long as the Credit Agreement is in effect, the Lenders holding a majority of the Loans and unused commitments for the Tranche Two Loan will be entitled to have one representative acceptable to the Company attend all meetings of the Company's board of directors (and any committees thereof), in a non-voting observer capacity, and such representative will receive copies of all notices, minutes, consents and other materials the Company provides to its directors in connection with such meeting. The Company may exclude such representative from access to any of such materials or meetings or portions thereof if it believes that any such material or portion thereof is a trade secret or similar confidential information or such exclusion is necessary to preserve the attorney-client privilege.

 

In accordance with the Credit Agreement, the Company issued each Lender a Common Stock Purchase Warrant to purchase, in the aggregate, 8,053,390 shares of common stock of the Company at an exercise price of $1.25 per share exercisable in cash only for a period of three years and then for cash or cashless thereafter (collectively, the "Initial Warrants"). Until the later of the repayment of all obligations owed to the Lenders or two years from the closing date, the Company will be required to issue additional Common Stock Purchase Warrants (the "Additional Warrants") to the Lenders equal to 10%, in the aggregate, of any additional issuance, subject to certain exceptions, on substantially the same terms and conditions of the Initial Warrants, except that (i) the applicable expiration date thereof shall be five years from the issuance date of the applicable warrant, (ii) the initial exercise price shall be a price equal to the price per share of common stock used in the relevant issuance multiplied by 110% and (iii) the holder shall be entitled to exercise the warrant on a cashless exercise at any time the warrant is exercisable.

 

The Company determined that the Marathon Credit Agreement and related warrants were freestanding instruments issued together and therefore should be accounted for separately. We determined the warrants did not qualify for equity classification and therefore have applied liability treatment to the instruments. The value of the warrants on the date of the Marathon Credit Agreement was determined to be $965,747, which was determined using the Black-Scholes method and was recorded as a liability with the offset being recorded as a debt discount, which will be amortized into interest expense over the life of the loan. The liability for the warrants, as well as any future warrant issuances, will be marked to marked quarterly in accordance with liability accounting.

 

As a condition to the closing of the Credit Agreement, the Company entered into a Registration Rights Agreement with the Lenders (the "Registration Rights Agreement"). Pursuant to the Registration Rights Agreement, the Company is required, not later than 90 days following the execution of the Credit Agreement, to file a shelf registration statement on Form S-3 with the SEC with respect to the resale of the shares of common stock issuable upon exercise of the Initial Warrants or any Additional Warrant, if any (the "Warrant Shares"). The Company is required to use its reasonable best efforts to have such registration statement declared effective as soon as reasonably practicable but in no event no later than 180 days after the closing date of the Credit Agreement. The Company is required to keep such shares registered for as long as they are deemed Registrable Securities (as defined in the Registration Rights Agreement). In addition, any holder of Registrable Securities (as defined in the Registration Rights Agreement) will have the right, subject to certain limitations, to request an underwritten takedown of any Warrant Shares. Any holder of Registrable Securities (as defined in the Registration Rights Agreement) will have the right, on up to four occasions, to demand that the Company file a registration statement with the SEC with respect to the resale of the Warrant Shares, subject to certain limitations. In addition, any holder of Registrable Securities (as defined in the Registration Rights Agreement) is entitled to unlimited piggyback registration rights with respect to the registration of any equity securities of the Company, subject to certain limitations. These registration rights are subject to customary conditions and limitations regarding cutbacks and indemnification, among others. Subject to certain exceptions, the Company is generally required to bear all expenses of such registration, other than underwriting discounts and commissions and certain travel expenses.

 

The Company, at closing, paid a fee equal to 1.0% of the Tranche One Loans and the commitment for the Tranche Two Loans. Upon the first drawing of any Tranche Two Loans, the Company is required to pay another fee equal to 1.0% of the Tranche One Loans and the commitment for the Tranche Two Loans.

 

In connection with entry into the Credit Agreement, the Company agreed to pay Cowen & Company, LLC a cash fee equal to 2% of the gross proceeds received from the Lenders on the earlier of the next capital raise or March 31, 2019.

 

The closing costs associated with the Marathon Credit Agreement were allocated based on proportional value to Tranche 1, Tranche 2 and the Marathon Warrants. Costs of $722,174 allocated to Tranche 1 were recorded as a debt discount; costs of $1,830,435 allocated to Tranche 2 were recorded as a prepaid asset and will be amortized over the expected life of the loan; and costs of $69,744 allocated to the Marathon Warrants were expensed in the year ended December 31, 2018.

 

On December 31, 2018, concurrently with the closing of the Credit Agreement and the initial borrowing of the Tranche One Loans, the Company utilized a portion of the proceeds from the Tranche One Loans to repay in full all outstanding amounts under the Company's existing Loan Agreement, dated July 6, 2018, as amended to date, by and among the Company, and Arosa, as lender (the "Existing Loan Agreement") and terminated all commitments by Arosa to extend further credit thereunder and all guarantees and security interests granted by the Company to Arosa in connection therewith.  Pursuant to the Existing Loan Agreement, the Company issued Arosa a Warrant to purchase 894,821 shares of common stock exercisable at $1.25 per share. As the full amount of all outstanding amounts under the Company's Existing Loan Agreement have been repaid in full, the Company is no longer required to issue additional warrants to Arosa going forward.

 

Principal amounts:   At December 31,
2018
 
Principal   $ 10,000,000  
Unamortized debt discount and issuance costs (1)     (1,687,921 )
Net debt carrying amount   $ 8,312,079  
Carrying amount of warrant the liability component (2)   $ 965,747  

 

  (1) Includes the unamortized portion of the initial warrant liability of $965,747 and issuance costs of $722,174.

 

  (2) Includes marked to market liability of initial Marathon warrant liability.