Exhibit 10.1

 

Execution Version

 

 

THE USE OF THE FOLLOWING NOTATION IN THIS EXHIBIT INDICATES THAT CERTAIN
INFORMATION HAS BEEN OMITTED PURSUANT TO ITEM 601(a)(6) OF REGULATION S-K: [***]

 

LIMITED WAIVER AND CONSENT, SECOND AMENDMENT AND RESTATEMENT OF
CREDIT AGREEMENT AND REAFFIRMATION OF LOAN DOCUMENTS

 

This LIMITED WAIVER AND CONSENT, SECOND AMENDMENT AND RESTATEMENT OF CREDIT AGREEMENT AND REAFFIRMATION OF LOAN DOCUMENTS is dated as of May 18, 2023 (this “Agreement”), and entered into by and among AIRSPAN NETWORKS INC., a Delaware corporation, as borrower (in such capacity, the “Borrower”), Airspan Networks Holdings Inc. (f/k/a New Beginnings Acquisition Corp.), a Delaware corporation (“ANH”), as Holdings (in such capacity, “Holdings”), each undersigned Subsidiary of the Borrower party to the Credit Agreement (as defined below) as a Guarantor (Holdings, together with each such Subsidiary acting in such capacity, collectively, the “Guarantors” and each, a “Guarantor”; and, together with the Borrower, collectively, the “Loan Parties” and, each, a “Loan Party”), the Lenders party hereto and DBFIP ANI LLC (“Fortress”), as Administrative Agent and Collateral Agent (Fortress, together with its successors and assigns in such capacities, the “Agent”), and acknowledged, agreed, and consented to by the Note Agent on the signature pages hereto.

 

WHEREAS, the Loan Parties are parties to (x) the Credit Agreement, dated as of December 30, 2020, as modified by (i) the Limited Consent, dated as of March 8, 2021, (ii) the First Amendment to Credit Agreement, dated as of June 14, 2021, (iii) the Waiver and Consent, Second Amendment, Restatement, Joinder and Omnibus Amendment to Credit Agreement and other Loan Documents, dated as of August 13, 2021, which amended and restated the Original Credit Agreement, (iv) the Limited Waiver and Consent under Amended and Restated Credit Agreement, dated as of November 2, 2021, (v) the Third Amendment and Waiver to Credit Agreement and Other Loan Documents, dated as of March 29, 2022, (vi) the Limited Consent letter agreement, dated as of March 31, 2022, (vii) the Limited Consent letter agreement, dated as of September 14, 2022 and (viii) the Fourth Amendment, Limited Waiver and Consent Under Credit Agreement and Other Loan Documents, dated as of November 14, 2022, and as the same has been or may be further amended, amended and restated, restated, supplemented or otherwise modified from time to time prior to the Effective Date (as defined below) the “Existing Credit Agreement” and, as the same may be further amended, amended and restated, restated, supplemented or otherwise modified from time to time, including by this Agreement, the “Credit Agreement”), among other things, together with the lenders from time to time party thereto prior to the date hereof (the “Existing Lenders”) and the Agent and (y) certain other Loan Documents pursuant to which, among other things, the Loan Parties have provided guarantees and collateral security in respect of the Obligations;

 

WHEREAS, ANH entered into that certain Senior Secured Convertible Note Purchase and Guarantee Agreement, dated as of July 30, 2021 (as modified by (i) the Limited Waiver and Consent under Senior Secured Convertible Note Purchase and Guarantee Agreement, dated as of November 2, 2021, (ii) the First Amendment and Waiver to Senior Secured Convertible Note Purchase and Guarantee Agreement and Other Note Documents, dated as of March 29, 2022, (iii) the Limited Consent letter agreement, dated as of March 31, 2022, (iv) the Limited Consent letter agreement, dated as of September 14, 2022 and (v) the Second Amendment, Limited Waiver and Consent Under Senior Secured Convertible Note Purchase and Guarantee Agreement and Other Note Documents, dated as of November 14, 2022, and as the same has been or may be further amended, amended and restated, restated, supplemented or otherwise modified from time to time prior to the Effective Date, the “NPA”) by, among others, ANH, as issuer, Artemis Merger Sub Corp., a Delaware corporation, as guarantor, the purchasers party thereto (collectively, the “Purchasers”) and Fortress, as collateral agent on behalf of the secured parties thereunder (together with its successors and assigns in such capacity, the “Note Agent”) and, immediately prior to the consummation of the De-SPAC Transactions, Holdings issued Senior Secured Convertible Notes to the Purchasers under the terms of the NPA and the other Note Documents (as defined in the NPA);

 

 

 

 

WHEREAS, the Borrower, Holdings, the other Guarantors party thereto and Fortress, in its capacities as Term Loan Agent, Collateral Agent and Notes Collateral Agent (each as defined in the Forbearance Agreement (as defined below)) have entered into that certain letter agreement Re: Forbearance Agreement, Fifth Amendment to Credit Agreement and Other Loan Documents, and Third Amendment to Senior Secured Convertible Note Purchase Guarantee Agreement and other Note Documents, dated as of April 21, 2023 (the “Forbearance Agreement”) on their own behalf and on behalf of the Existing Lenders and the Purchasers, pursuant to which the parties have agreed to forebear with respect to the Specified Defaults (as defined in the Forbearance Agreement) and to negotiate in good faith to enter into this Agreement;

 

WHEREAS, in order to raise additional liquidity, the Loan Parties have engaged PJT Partners, LP (the “Company Financial Advisor”) and are planning to engage in cost cutting and enter into one or more strategic transactions to restructure their business operations and raise additional capital;

 

WHEREAS, in furtherance of the foregoing, on March 8, 2023, Holdings entered into a Stock Purchase Agreement (as in effect on the date hereof and as amended with the consent of the Agent in its sole discretion, the “Mimosa Purchase Agreement”) with Borrower, Mimosa Networks, Inc., a Delaware corporation and a direct wholly-owned subsidiary of Borrower (“Mimosa”), and Radisys Corporation, an Oregon corporation (“Buyer”), pursuant to which the Borrower will sell all of the issued and outstanding shares of common stock of Mimosa to Buyer for an aggregate purchase price of approximately $60,000,000 in cash (subject to customary adjustments as set forth in the Mimosa Purchase Agreement) on the terms and subject to the conditions set forth in the Mimosa Purchase Agreement (the “Divestiture Transaction”) and the Loan Parties now are seeking the consent of the Agent and the Requisite Lenders to consummate the Divestiture Transaction;

 

WHEREAS, as a result of the Known Defaults (as defined below), pursuant to Section 3.02(c) of the Existing Credit Agreement the Lenders under the Existing Credit Agreement have no obligation to fund any “Delayed Draw Term Loans” (as defined in the Existing Credit Agreement) in respect of the existing “Delayed Draw Term Loan Commitments” (as defined in the Existing Credit Agreement) (the “Existing DDTL Commitments”);

 

WHEREAS, in order to finance the ongoing operations of the Loan Parties and the costs associated with the consummation of the Divestiture Transaction, the Loan Parties have requested and the Agent, the Existing Lenders and each other party signatory hereto as a lender and listed on Exhibit B hereto (the “New Lenders” and together with the Existing Lenders, collectively the “Lenders”) have agreed, subject to the terms and conditions stated herein, to enter into this Agreement and to amend and restate the terms of the Credit Agreement to, among other things, (i) consent to the Divestiture Transaction described in the Mimosa Purchase Agreement, (ii) waive the following existing Events of Default: (A) (v) the Event of Default which occurred pursuant to Section 8.01(a) of the Existing Credit Agreement as a result of the Loan Parties’ failure to make the regularly scheduled payments required pursuant to Section 2.01(b)(i) of the Existing Credit Agreement on the Interest Payment Dates occurring on March 31, 2023 and May 1, 2023 (the amounts unpaid on such Interest Payment Dates, the “Overdue Amounts”), (w) the Event of Default which occurred pursuant to Section 8.01(c) of the Existing Credit Agreement on December 31, 2022 as a result of the Loan Parties’ failure to comply with Section 7.16(b) of the Existing Credit Agreement, (x) the Event of Default which occurred pursuant to Section 8.01(c) of the Existing Credit Agreement on December 31, 2022 as a result of the Loan Parties’ failure to comply with Section 7.16(c) of the Existing Credit Agreement, (y) the Event of Default which occurred pursuant to Section 8.01(c) of the Existing Credit Agreement on, and which Event of Default has been continuing since, November 29, 2022 as a result of the Loan Parties’ failure to comply with Section 7.16(a) of the Existing Credit Agreement, (z) the Event of Default which occurred pursuant to Section 8.01(c) of the Credit Agreement as a result of the Loan Parties’ failure to comply with Section 6.14(b)(E) of the Credit Agreement, and (B) the Events of Default which occurred pursuant to Section 8.01(e)(i) and Section 8.01(e)(ii) of the Existing Credit Agreement as a result of the events of default which occurred under the Note Documents corresponding to the Events of Default described in clause (A) above (collectively, the “Specified Events of Default”), (iii) terminate the Existing DDTL Commitments and establish new Delayed Draw Term Loan Commitments in the aggregate amount of $25,000,000 and (iv) make such other amendments to the Credit Agreement and other Loan Documents described in the Second Amended and Restated Credit Agreement attached as Exhibit A hereto (the “Second Amended and Restated Credit Agreement”) and in the other amendments to the Loan Documents entered into in connection herewith; and

 

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WHEREAS, it is the intent of the parties hereto that this Agreement and the amendment and restatement of the Credit Agreement do not constitute a novation of the rights, obligations and liabilities of the respective parties (including the Obligations) existing under the Existing Credit Agreement or evidence payment of all or any of such obligations and liabilities under any of the Loan Documents and except as expressly modified hereby, all such rights, obligations and liabilities shall continue and remain outstanding and in full force and effect;

 

NOW, THEREFORE, in consideration of the premises set forth above and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned parties agree as follows:

 

1. Defined Terms. Capitalized terms used in this Agreement and not otherwise defined in this Agreement shall have the meanings ascribed to such respective terms in the Credit Agreement.

 

2. Limited Waiver and Consent.

 

2.1 Subject to the terms and conditions set forth in Section 2.2 and Section 4 below, the Agent and each Lender hereby: (i) consents to (x) the consummation of the Divestiture Transaction by the applicable Loan Parties (in accordance with the terms of the Mimosa Purchase Agreement) and (y) permitting the Loan Parties to retain, the Net Cash Proceeds of the Divestiture Transactions in excess of the Minimum Prepayment Amount (as defined below); provided in the case of clauses (x) and (y) that (A) both before and after giving effect to the Closing Date (as defined in the Mimosa Purchase Agreement, the “Mimosa Closing Date”), no Default or Event of Default then exists and is continuing and (B) the Agent determines (in its sole discretion) that each of the Consent Conditions set forth in Section 2.2 below have been satisfied prior to or substantially concurrently with the Mimosa Closing Date, (ii) waives the Specified Events of Default occurring prior to the date hereof which the Lenders and the Agent have actual knowledge of (the “Known Defaults”), (iii) waives any imposition of any applicable Default Rate interest on the Overdue Amounts for the period between the applicable Interest Payment Dates and the Second Restatement Effective Date, (iv) consents under the terms of the Pari Passu Intercreditor Agreement and the Collateral Documents to the sale of the Equity Interests in Mimosa, the release of liens and guarantees with respect to Mimosa and to the extent approved by the Collateral Agent in its sole discretion the transfer of Company Intellectual Property Transferred Intellectual Property (each as defined in the Mimosa Purchase Agreement) in connection therewith pursuant to the terms of the Mimosa Purchase Agreement; provided that the conditions described in clause (i) above are satisfied on the Mimosa Closing Date and (v) consents under the terms of the Intercreditor Agreement and the other Loan Documents to the amendments described in the NPA Third Amendment (as defined below). The foregoing waiver and consent shall be limited precisely as written and relates solely to the limited consents specified above and the Known Defaults in the manner they exist on the date hereof and not to any other change in facts or circumstances occurring after the date hereof, or to any other Defaults or Events of Default now existing or occurring after the date hereof, and shall not in any way or manner restrict the Agent or any Lender from exercising any rights or remedies they may have with respect to any other Default or Event of Default (including, for the avoidance of doubt, any Default or Event of Default existing as of the date hereof which is not a Known Default) at any time in respect of this Agreement or any other Loan Document. Nothing in this Agreement shall be deemed to: (a) constitute a waiver of compliance by the Borrower or any other Loan Party with respect to any other term, provision or condition of the Credit Agreement or any other Loan Document, or any other instrument or agreement referred to therein or prejudice any right or remedy that the Agent or any Lender may have or may in the future have; or (b) create any course of dealing or otherwise impair or prejudice any right or remedy that the Agent or any other Secured Party may now have or may have in the future under or in connection with the Credit Agreement or any other Loan Document, or any other instrument or agreement referred to therein, with respect to any matter other than those specifically and expressly waived and consented to in this Section 2.

 

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2.2 On or prior to the Mimosa Closing Date, the Agent (or its counsel) shall have received all of the following (each in form and substance satisfactory to the Agent in its sole discretion) (the “Consent Conditions”):

 

(i) At least five (5) Business Days prior to the Mimosa Closing Date (or such later date agreed with the Agent in its sole discretion (which consent may be via e-mail)), the Borrower shall have delivered a certificate duly executed by a Responsible Officer of the Borrower, attaching (A) current drafts of all of the transaction documents relating to the Divestiture Transaction and detailing the status of all of the conditions precedent to the Divestiture Transaction and (B) a draft flow of funds and summary of anticipated transaction expenses;

 

(ii) On the Mimosa Closing Date, immediately prior to giving effect to the Mimosa Closing Date, the Borrower shall have delivered a duly executed certificate of a Responsible Officer of the Borrower (A) certifying and attaching supporting evidence demonstrating that all conditions precedent to the Mimosa Closing Date have been satisfied in accordance with the terms set forth in the Mimosa Purchase Agreement and without waiver unless otherwise consented to in writing by the Agent in its sole discretion (which consent may be by email), (B) certifying and attaching a final flow of funds evidencing that (x) at least $45,000,000 of the proceeds of the Divestiture Transaction (the “Minimum Prepayment Amount”) will be paid substantially concurrently with the Closing Date directly from the Buyer to the Secured Parties or their respective designees (in accordance with their proportionate share of the Loan Obligations and Note Obligations then outstanding), to prepay the outstanding Loan Obligations and Note Obligations and (y) that all remaining proceeds of the Divestiture Transaction not paid to the Secured Parties pursuant to the preceding clause (x) (the “Company Retained Net Cash Proceeds”) or payable to third parties pursuant to such funds flow will be deposited into a Controlled Account and (C) attaching the final documentation evidencing the Divestiture Transaction (if not previously provided), along with such other certificates, agreements, documents and instruments, in each case as reasonably requested by the Agent or the Borrower and necessary to evidence or effectuate the Divestiture Transaction, each in form and substance satisfactory to the Agent in its sole discretion.

 

2.3 Prior to the Mimosa Closing Date, the Agents will deliver at the sole cost and expense of the Loan Parties a letter (in form and substance satisfactory to the Agents in their sole discretion and which terms may be agreed by the parties in advance of such delivery date) evidencing the release of the Agents’ Liens on the assets sold pursuant to the Mimosa Purchase Agreement to be effective upon, (i) the Agents’ receipt of Minimum Payment Amount in immediately available funds in accordance with the payment details described in such letter and (ii) the receipt of countersignatures from each of the Loan Parties pursuant to which the Loan Parties (x) confirm that all Consent Conditions have been satisfied, (y) reaffirm all other Obligations and (z) provide customary certifications and releases for the benefit of the Secured Parties (with each of (x), (y) and (z) to be effective and to be deemed made on the Mimosa Closing Date both before and after giving effect to the release of Liens described therein).

 

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3. Second Amended and Restated Credit Agreement; Joinder of New Lenders; Reallocation of Delayed Draw Term Loans/New Delayed Draw Term Loans.

 

3.1 Amendment and Restatement. (a) Upon the satisfaction of the terms and conditions set forth in Section 4 below on the Effective Date, the Existing Credit Agreement (excluding the annexes, schedules and exhibits thereto) shall be amended and restated in its entirety and replaced with the Second Amended and Restated Credit Agreement, (b) Appendix A to the Existing Credit Agreement shall be amended and restated in its entirety and replaced with the Appendix A to Second Amended and Restated Credit Agreement attached hereto as Exhibit B, (c) Appendix C to Second Amended and Restated Credit Agreement attached hereto as Exhibit C shall be appended to the Credit Agreement as Appendix C thereto, (d) each of the exhibits to the Existing Credit Agreement for which a corresponding exhibit is attached hereto as Exhibit D shall be amended and restated in their entirety and replaced with the corresponding exhibits attached hereto as Exhibit D, and a new Exhibit N to the Credit Agreement shall be inserted in such Exhibits in appropriate alphanumerical order to read as set forth on the Exhibit N that is part of Exhibit D hereto, (e) each of the Schedules to the Existing Credit Agreement appearing in Exhibit E hereto shall be amended and restated in their entirety and replaced with the corresponding schedules attached hereto as Exhibit E and (f) the New Lenders (as defined below) shall be party to the Credit Agreement as Lenders and shall have the rights and obligations of a Lender thereunder and under the other Loan Documents.

 

3.2 Joinder of New Lenders; Reallocation of Delayed Draw Term Loans/New Delayed Draw Term Loan. Subject to the terms and conditions set forth herein but giving effect to the transactions described in clauses (i) and (ii), immediately concurrently with the execution and effectiveness of this Agreement:

 

(i) Each Person executing this Amendment as a “New Delayed Draw Term Loan Lender” (each a “New Delayed Draw Term Loan Lender”) shall become a party to the Second Amended and Restated Credit Agreement and other Loan Documents as a “Lender” and on and after the date hereof shall have all rights and obligations of a “Lender” under the Loan Documents;

 

(ii) Each New Delayed Draw Term Loan Lender and each existing Lender providing “Delayed Draw Term Commitments” as described on Exhibit B hereto (collectively, the “Delayed Draw Term Loan Lenders”) hereby agrees to establish Delayed Draw Term Loan Commitments, severally and not jointly, such that as of the Effective Date and the establishment of Delayed Draw Term Loan Commitments on such date (but prior to giving effect to any Borrowing of Delayed Draw Term Loans to occur on such Effective Date), each such Lender will have the Delayed Draw Term Loan Commitments specified on Exhibit B across from such Lender’s name;

 

Subject to the terms and conditions of this Agreement and the Second Amended and Restated Credit Agreement, each Lender holding Delayed Draw Term Loan Commitments on the Effective Date agrees to make Delayed Draw Term Loans on such Effective Date to the Borrower in an amount equal to their proportionate share of the amount of requested Delayed Draw Term Loans specified on the Notice of Borrowing delivered to the Agent in accordance with the terms of the Second Amended and Restated Credit Agreement.

 

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3.3 Existing LIBOR Loans. Notwithstanding anything to the contrary contained herein or in any other Document, (i) all LIBO Rate Loans (as defined in the Existing Credit Agreement) outstanding as of the Effective Date (the “Existing LIBOR Loans”) shall continue to accrue interest based on the LIBO Rate (as defined in the Existing Credit Agreement) until the last day of the Interest Period (as defined in the Existing Credit Agreement) applicable to each such Existing LIBOR Loan, and thereafter, such Existing LIBOR Loan shall be automatically converted to a SOFR Loan, and (ii) the terms of the Existing Credit Agreement in respect of administration of Loans that bear interest based on the LIBO Rate (as defined in the Existing Credit Agreement), solely with respect to Existing LIBOR Loans, shall remain in effect from and after the Effective Date until the last day of the Interest Period (as defined in the Existing Credit Agreement) applicable to each such Existing LIBOR Loan, solely for purposes of administering the Existing LIBOR Loans; provided, that notwithstanding the foregoing, the Applicable Rate with respect to any Existing LIBOR Loans shall be calculated by increasing the “Margin PIK Component” of the Applicable Rate otherwise applicable in respect of such Existing LIBOR Loans under the Existing Credit Agreement by three percent (3.0%) per annum during the period from the Third Amendment Effective Date through the last day of the Interest Period applicable to each such Existing LIBOR Loan.

 

4. Effectiveness. This Agreement and the limited waivers and consents set forth in Section 2 above and the other amendments and other modifications to the Existing Credit Agreement as set forth in Section 3.1 above shall become effective immediately upon the Lenders’ party hereto and the Agent’s satisfaction with each of the following conditions precedent (the date of such satisfaction, the “Effective Date”):

 

4.1 The Agent (or its counsel) shall have each received the following, each in form and substance satisfactory to the Agent and the Lenders party hereto:

 

(i) Duly executed counterparts to this Agreement, which shall be duly executed by the Borrower, each Guarantor, each existing Lender, each New Delayed Draw Term Loan Lender and the Agent;

 

(ii) The Agent shall have received (a) at least two (2) Business Days before the Effective Date, a duly executed Notice of Borrowing and (b) a flow of funds acceptable to the Agent;

 

(iii) A duly executed copy of the Limited Waiver and Consent, Third Amendment to Senior Secured Convertible Note Purchase and Guarantee Agreement and Reaffirmation of Note Documents (the “NPA Third Amendment”) pursuant to which the Purchasers and the Note Agent, agree among other things, to consent to this Agreement, the Divestiture Transaction and to waive the Specified Defaults;

 

(iv) A copy of the engagement letter between the Company Financial Advisor and Holdings, dated as of June 16, 2022 (the “Financial Advisor Engagement Letter”);

 

(v) A certificate of a Responsible Officer of Holdings addressed to the Agent, in form and substance satisfactory to the Agent and certifying (a) as to the matters set forth in Section 6 below and (b) that all conditions precedent to the Effective Date have been satisfied;

 

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(vi) Duly-adopted resolutions from the Board of Directors of each Loan Party in form and substance satisfactory to the Agent specifically affirming that (a) prior to executing this Agreement, such Loan Party has had the opportunity to review, evaluate, and negotiate this Agreement, the Credit Agreement, the Specified Fees and any Applicable Prepayment Premium and the calculations thereof with its advisors, (b) the Specified Fees and any Applicable Prepayment Premium are a good faith, reasonable approximation of Lenders’ liquidated damages upon the applicable triggering events, taking into account all of the circumstances, including the costs of funds, the opportunity cost of capital, the relative risk of the investment, and the operational benefits for the Loan Parties from continued use of funds as a result of the Lenders’ agreement to accept the Specified Fees and any Applicable Prepayment Premium in lieu of additional up-front fees, (c) the Specified Fees and any Applicable Prepayment Premium are not intended to be nor viewed by the parties as the economic equivalent of unmatured interest and (d) each of the Loan Parties has duly authorized its entry into this Agreement, the Second Amended and Restated Credit Agreement, the incurrence of Delayed Draw Term Loan Commitments in connection therewith and the Borrowing of Delayed Draw Term Loans on the Effective Date;

 

(vii) Fully executed original detachable penny warrants to purchase an aggregate of 5,912,040 shares of common stock of Holdings, to be issued to the Delayed Draw Term Loan Lenders (or their affiliates or designees) (the “New Warrants”); and

 

(viii) Each of the other conditions precedent set forth on Exhibit F.

 

4.2 No Default. Immediately after giving effect to this Agreement and the limited waivers and consents described in Section 2 above, no Default or Event of Default shall have occurred and be continuing or would result from the execution, delivery or performance of this Agreement.

 

4.3 Management. The Agent shall have received evidence satisfactory to it that, as of the Effective Date, Glenn Laxdal has been appointed as the chief executive officer of Holdings and that Eric Stonestrom is the executive chairman of the Holdings’s board of directors.

 

5. Fees. All accrued fees and expenses of the Agent and Lenders including the fees described in the Second Amended and Restated Credit Agreement and the fees and expenses of external counsel (including Sidley Austin LLP and any local counsel to the Agent and Lenders invoiced at least one (1) Business Day prior to the Effective Date, in each case, shall have been paid as consideration for this Agreement and the limited waivers and consents contained in Section 2 and the other amendments and modifications to the Loan Documents entered into in connection with this Agreement. Each Lender party hereto, by delivering its signature page to this Agreement on the Effective Date, shall be deemed to have consented to, approved or accepted or to be satisfied with, this Agreement and each other document required hereunder or thereunder to be consented to, approved by or acceptable or satisfactory to such Lender (if any), unless the Agent shall have received notice from any such Lender prior to the Effective Date specifying its objection thereto.

 

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6. Representations and Warranties; Ratification of Obligations; Reaffirmation of Guaranty and Loan Documents. Each Loan Party hereby expressly represents and warrants that, immediately after giving effect to the Specified Consents and Limited Waivers contained herein: (a) (i) each of the representations and warranties set forth in Article V of the Credit Agreement are true and correct in all material respects on and as of the Effective Date, except to the extent that such representations and warranties expressly relate to an earlier date, in which case such representations and warranties remain true and correct in all material respects as of such earlier date and, in the case of any of the foregoing, other than representations that are qualified by materiality, which are true and correct in all respects; (ii) no Default or Event of Default has occurred and is continuing; and (iii) no event, change or condition has occurred since the Closing Date that has had or could reasonably be expected to have, a Material Adverse Effect; and (b) each Loan Party hereby expressly: (i) confirms its Obligations (including any guarantee obligation) under each Loan Document, in each case as amended, restated, supplemented or modified immediately after giving effect to this Agreement and the Specified Consents and Limited Waivers contained herein; (ii) confirms that its Obligations as amended, restated, supplemented or modified hereby under the Credit Agreement and the other Loan Documents are entitled to the benefits of the pledges and guarantees, as applicable, set forth in the Loan Documents, in each case, as amended, restated, supplemented or modified immediately after giving effect to this Agreement (including as such grants have been amended, restated, supplemented or modified by this Agreement and the Specified Consents and Limited Waivers contained herein); and (iii) confirms that its Obligations under the Credit Agreement and the other Loan Documents immediately after giving effect to this Agreement constitute Obligations. Each party, by its execution of this Agreement, hereby confirms that the Obligations shall remain in full force and effect (except as such Obligations have been expressly supplemented, amended, restated or modified hereby), and such Obligations shall continue to be entitled to the benefits of the grant of collateral security set forth in the Collateral Documents, as amended, restated, supplemented or modified hereby.

 

7. Release. In consideration of the foregoing amendments, the Loan Parties signatory hereto, and, to the extent the same is claimed by right of, through or under the Borrower or any Guarantor, for its past, present and future successors in title, representatives, assignees, agents, officers, directors and shareholders, does hereby and shall be deemed to have forever remised, released and discharged each of the Secured Parties, and their respective Affiliates, and any of the respective successors-in-title, legal representatives and assignees, past, present and future officers, directors, shareholders, trustees, agents, employees, consultants, experts, advisors, attorneys and other professionals and all other persons and entities to whom any Secured Party or any of its Affiliates would be liable if such persons or entities were found to be liable to the Borrower or any other Loan Party, or any of them (collectively hereinafter the “Indemnified Parties”), from any and all manner of action and actions, cause and causes of action, claims, charges, demands, counterclaims, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, damages, judgments, expenses, executions, liens, claims of liens, claims of costs, penalties, attorneys’ fees, or any other compensation, recovery or relief on account of any liability, obligation, demand or cause of action of whatever nature, whether in law, equity or otherwise (including without limitation those arising under 11 U.S.C. §§ 541-550 and interest or other carrying costs, penalties, legal, accounting and other professional fees and expenses, and incidental, consequential and punitive damages payable to third parties), whether known or unknown, fixed or contingent, joint and/or several, secured or unsecured, due or not due, primary or secondary, liquidated or unliquidated, contractual or tortious, direct, indirect, or derivative, asserted or unasserted, foreseen or unforeseen, suspected or unsuspected, now existing, heretofore existing or which may heretofore accrue against any of the Indemnified Parties, whether held in a personal or representative capacity, and which are based on any act, fact, event or omission or other matter, cause or thing occurring at or from any time prior to and including the date hereof in any way, directly or indirectly arising out of, connected with or relating to this Agreement or the Loan Documents, and the transactions contemplated hereby and thereby, and all other agreements, certificates, instruments and other documents and statements (whether written or oral) related to any of the foregoing.

 

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8. No Actions, Claims, Etc. Each Loan Party acknowledges and confirms that it has no knowledge of any actions, causes of action, claims, demands, damages or liabilities of whatever kind or nature, in law or in equity, against any Secured Party, in any case, arising from any action or failure of any Secured Party to act under this Agreement or any other Loan Document on or prior to the date hereof, or of any offset right, counterclaim or defense of any kind against any of its respective obligations, indebtedness or liabilities to any Secured Party or any of their Affiliates under this Agreement or any other Loan Document. Each Loan Party unconditionally releases, waives and forever discharges on its own behalf and on behalf of each of its subsidiaries and Affiliates (i) any and all liabilities, obligations, duties, promises or indebtedness of any kind of any Secured Party to such Loan Party, except the obligations required to be performed by any Secured Party or its Affiliates or agents under the Loan Documents on or after the date hereof and (ii) all claims, offsets, causes of action, suits or defenses of any kind whatsoever (if any), whether arising at law or in equity, whether known or unknown, which such Loan Party might otherwise have against any Secured Party in connection with this Agreement or the other Loan Documents or the transactions contemplated thereby, in the case of each of clauses (i) and (ii), on account of any past or presently existing condition, act, omission, event, contract, liability, obligation, indebtedness, claim, cause of action, defense, circumstance or matter of any kind.

 

9. Reference to and Effect on the Credit Agreement and the Other Loan Documents. On and after the Effective Date, each reference in the Credit Agreement or the other Loan Documents to “this Agreement”, “the Credit Agreement”, “the Security Agreement”, “the Loan Documents”, “hereunder”, “hereof”, “thereunder”, “thereof” or words of like import referring to the Credit Agreement, the Security Agreement and each of the other Loan Documents, shall mean and be a reference to the Credit Agreement, the Security Agreement and/or, as the context may require, the Loan Documents, as amended or amended and restated by this Agreement. The execution, delivery and effectiveness of this Agreement shall not, except as expressly provided herein, operate as a waiver or novation of any Loan Document or of any right, power or remedy of any Secured Party under any Loan Document, nor, except as expressly provided herein, constitute a waiver or novation of any provision of any of the Loan Documents. The parties hereto hereby expressly acknowledge and agree that this Agreement is, and shall be deemed to constitute, both a “Loan Document” and a “Fee Letter” for all purposes of the Credit Agreement and the other Loan Documents.

 

10. Confirmation of Outstanding Obligations. The parties hereto hereby acknowledge and agree that, as of the date hereof after giving effect to the Effective Date (and the Loans to be advanced on such date, the payment of the Overdue Amounts and the Capitalization of the Second Restatement Fee): (a) the outstanding principal amount of the Loans as of such date (including fees and interests capitalized on or prior to the Effective Date) is $53,155,025.15 in the aggregate, consisting of (i) $33,447,102.36 of Initial Term Loans, (ii) $9,707,922.79 of Tranche 2 Term Loans and (iii) $10,000,000.00 Delayed Draw Term Loans and (b) the amount of accrued but unpaid and uncapitalized interest on the Loans from the last Interest Payment Date to the Effective Date is $324,831.48 in the aggregate, consisting of (i) $297,865.03 of interest for the Initial Term Loans in the aggregate, (ii) $26,966.45 of interest for the Tranche 2 Term Loans in the aggregate and (iii) $0.00 for the Delayed Draw Term Loans in the aggregate. The Loan Parties confirm that all of the outstanding fees described in the Loan Documents, including the Administration Fee, the End of Term Fee, the Third Amendment Fee, the Waiver Fee, the Second Restatement Fee and any other fees however described remain part of the Obligations and shall be due and owing in accordance with their terms.

 

11. Incorporation of Terms. The provisions of Section 1.02 (Other Interpretative Provisions), 12.01 (Notices), Section 12.02 (Governing Law; Submission to Jurisdiction), Section 12.03 (Jury Trial Waiver), Section 12.05 (APPOINTMENT OF PROCESS AGENT; SERVICE OF PROCESS), Section 12.06 (Borrower as Agent for Notice for Loan Parties), Section 13.01 (Successors and Assigns; Participations), Section 13.02 (Costs and Expenses; Indemnification), Section 13.05 (Amendments in Writing; Waiver; Integration), Section 13.06 (Counterparts), Section 13.07 (Survival) and Section 13.09 (Electronic Execution of Documents) of the Credit Agreement shall be incorporated into this Agreement as if set out in full in this Agreement and as if references in those sections to “this Agreement” are references to this Agreement.

 

[Signature pages to follow.]

 

9

 

 

IN WITNESS WHEREOF, the undersigned has caused this Agreement to be executed and made effective as of the date first written above:

 

  DBFIP ANI LLC,
  as Agent, Note Agent and a Lender
   
  By: /s/ Timothy Bailey
  Name:  Timothy Bailey
  Title: Treasurer

 

[Signature Page to Limited Waiver and Consent,
Second Amendment and Restatement of Credit Agreement and Reaffirmation of Loan Documents]

 

10

 

 

IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed and made effective as of the date first written above:

 

  NEW DELAYED DRAW TERM LOAN LENDERS:
     
 

FIP UST LP, as a Lender

By: FIP FUND I GP LLC, its general partner

     
  By: /s/ Timothy Bailey
  Name: Timothy Bailey
  Title: Treasurer
     
  FORTRESS LENDING II HOLDINGS L.P., as a Lender
  By: Fortress Lending Advisors II LLC, its investment manager
   
  By: /s/ Timothy Bailey
  Name: Timothy Bailey
  Title: Authorized Signatory
     
 

Fortress Lending Fund II MA-CRPTF LP, as a Lender

By: FLF II MA-CRPTF Advisors LLC, its investment manager

     
  By: /s/ Timothy Bailey
  Name: Timothy Bailey
  Title: Authorized Signatory
     
 

DRAWBRIDGE sPECIAL OPPORTUNITIES Fund LP, as a Lender

By: Drawbridge Special Opportunities GP LLC, its general partner

   
  By: /s/ Timothy Bailey
  Name: Timothy Bailey
  Title: Treasurer

 

[Signature Page to Limited Waiver and Consent,

Second Amendment and Restatement of Credit Agreement and Reaffirmation of Loan Documents]

 

11

 

 

 

Fortress Lending i HOLDINGS L.P., as a Lender

By: Fortress Lending Advisors II LLC, its investment manager

     
  By: /s/ Timothy Bailey
  Name: Timothy Bailey
  Title: Authorized Signatory

 

[Signature Page to Limited Waiver and Consent,

Second Amendment and Restatement of Credit Agreement and Reaffirmation of Loan Documents]

 

12

 

 

IN WITNESS WHEREOF, the undersigned has caused this Agreement to be executed and made effective as of the date first written above:

 

 

PENDRELL CORPORATION,

as a Lender

     
  By: /s/ R. Gerard Salemme
  Name: R. Gerard Salemme
  Title: Co-Chief Executive Officer

 

[Signature Page to Limited Waiver and Consent,

Second Amendment and Restatement of Credit Agreement and Reaffirmation of Loan Documents]

 

13

 

 

IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed and made effective as of the date first written above:

 

  LOAN PARTIES:
     
  AIRSPAN NETWORKS HOLDINGS INC. (f/k/a New Beginnings Acquisition Corp.), a Delaware corporation, as a Guarantor and Grantor
     
  By: /s/ David Brant
  Name: David Brant
  Title: Senior Vice President and Chief Financial Officer

 

[Signature Page to Limited Waiver and Consent,

Second Amendment and Restatement of Credit Agreement and Reaffirmation of Loan Documents]

 

14

 

 

  AIRSPAN NETWORKS INC.,
a Delaware corporation, as Borrower and Grantor
     
  By: /s/ David Brant
  Name: David Brant
  Title: Senior Vice President and Chief Financial Officer
     
  AIRSPAN IP HOLDCO LLC,
a Delaware limited liability company, as a Guarantor and Grantor
   
  By: /s/ David Brant
  Name: David Brant
  Title: Senior Vice President and Chief Financial Officer
     
  AIRSPAN NETWORKS (SG) INC.,
a Delaware corporation, as a Guarantor and Grantor
     
  By: /s/ David Brant
  Name: David Brant
  Title: Senior Vice President and Chief Financial Officer
     
  MIMOSA NETWORKS, INC.,
a Delaware corporation, as a Guarantor and Grantor
     
  By: /s/ David Brant
  Name: David Brant
  Title: Senior Vice President and Secretary
     
 

MIMOSA NETWORKS INTERNATIONAL, LLC,

a Delaware limited liability company, as a Guarantor and Grantor

     
  By: /s/ David Brant
  Name: David Brant
  Title: Senior Vice President and Chief Financial Officer

 

[Signature Page to Limited Waiver and Consent,

Second Amendment and Restatement of Credit Agreement and Reaffirmation of Loan Documents]

 

15

 

 

  AIRSPAN COMMUNICATIONS LIMITED,
a company incorporated and registered in England and Wales, as a Guarantor
     
  By: /s/ David Brant
  Name: David Brant
  Title: Director
     
  AIRSPAN NETWORKS LTD.
an Israel corporation, as a Guarantor
     
  By: /s/ David Brant
  Name: David Brant
  Title: Director
     
  Airspan Japan KK,
a Japanese corporation, as a Guarantor
   
  By: /s/ Steven P. Shipley
  Name: Steven P. Shipley
  Title: Representative Director

 

[Signature Page to Limited Waiver and Consent,

Second Amendment and Restatement of Credit Agreement and Reaffirmation of Loan Documents]

 

16

 

 

EXHIBIT A

 

Execution Version

 

SECOND AMENDED AND RESTATED

 

CREDIT AGREEMENT

 

dated as of May 18, 2023

 

among

 

AIRSPAN NETWORKS Inc.,

as Borrower,

 

AIRSPAN NETWORKS HOLDINGS INC.

(formerly known as New Beginnings Acquisition Corp)

as Holdings and as a Guarantor,

 

and

 

CERTAIN SUBSIDIARIES OF HOLDINGS,

as Guarantors,

 

 

THE LENDERS FROM TIME TO TIME PARTY HERETO

 

and

 

DBFIP ANI LLC,

as Administrative Agent and Collateral Agent

 

 

(which amends and restates that certain Amended and Restated Credit Agreement dated as of August 13, 2021
(as further amended by that certain Third Amendment and Waiver to Credit Agreement and Other
Loan Documents dated as of March 29, 2022 and that certain Fourth Amendment, Limited Waiver and
Consent Under Credit Agreement and Other Loan Documents dated as of November 14, 2022), which
amended and restated that certain Credit Agreement dated as of December 30, 2020)

 

 

 

Exhibit A (Second Amended and Restated Credit Agreement) to Limited Waiver and Consent,

Second Amendment and Restatement of Credit Agreement and Reaffirmation of Loan Documents

 

 

 

 

TABLE OF CONTENTS

 

    Page
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS   2
SECTION 1.01 Defined Terms   2
SECTION 1.02 Other Interpretative Provisions   65
SECTION 1.03 Rounding   67
SECTION 1.04 Divisions   67
SECTION 1.05 Cashless Rolls   67
SECTION 1.06 Rates   67
SECTION 1.07 Currencies   68
     
ARTICLE II LOANS AND TERMS OF PAYMENT   68
SECTION 2.01 Term Loans   68
SECTION 2.02 Interest; Fees; Evidence of Debt; Payments   75
SECTION 2.03 Taxes   82
SECTION 2.04 Ratable Sharing; Pro Rata Shares; Availability of Funds   86
SECTION 2.05 Benchmark Replacement Settings   87
SECTION 2.06 Increased Costs; Capital Requirements   88
SECTION 2.07 Application of Prepayments/Reductions   89
SECTION 2.08 Defaulting Lenders   90
SECTION 2.09 Mitigation of Obligations; Replacement of Lenders   91
     
ARTICLE III CONDITIONS PRECEDENT TO THE LOANS   92
SECTION 3.01 Conditions to the Closing Date and Closing Date Term Loans   92
SECTION 3.02 Conditions to all Loans after the Closing Date   97
     
ARTICLE IV WARRANT   98
SECTION 4.01 Warrant to Purchase Shares   98
SECTION 4.02 Tax Treatment   98
     
ARTICLE V REPRESENTATIONS AND WARRANTIES   99
SECTION 5.01 Existence, Qualification and Power   99
SECTION 5.02 Authorization; No Contravention   99
SECTION 5.03 Governmental Authorization; Other Consents   100
SECTION 5.04 Binding Effect   100
SECTION 5.05 Financial Statements; No Material Adverse Effect   100
SECTION 5.06 Litigation   100

 

- i -

 

 

SECTION 5.07 No Default   101
SECTION 5.08 Ownership of Property; Liens; Permits   101
SECTION 5.09 Environmental Compliance   101
SECTION 5.10 Insurance   101
SECTION 5.11 Taxes   102
SECTION 5.12 ERISA and Foreign Plans Compliance; Pensions   102
SECTION 5.13 Subsidiaries; Equity Interests   103
SECTION 5.14 Margin Regulations; Investment Company Act   103
SECTION 5.15 Disclosure   103
SECTION 5.16 Compliance with Laws   103
SECTION 5.17 Intellectual Property; Licensing   104
SECTION 5.18 Rights in Collateral; Priority of Liens   107
SECTION 5.19 Solvency   107
SECTION 5.20 Business Locations; Taxpayer Identification Number   108
SECTION 5.21 [Reserved]   108
SECTION 5.22 PATRIOT Act; Sanctions; Export Controls; FCPA   108
SECTION 5.23 Material Contracts   109
SECTION 5.24 Employee Matters   110
SECTION 5.25 No Regulatory Restrictions on Borrowing, Guarantees or Upstreaming Cashflows   110
SECTION 5.26 Rank of Debt   110
SECTION 5.27 No Set-off   110
SECTION 5.28 No Immunity; Proper Legal Form; No Need To Qualify Under Each Relevant Jurisdiction or Other Applicable Law   111
SECTION 5.29 Centre of Main Interests and Establishments   111
SECTION 5.30 Exchange Controls   111
SECTION 5.31 Customers and Suppliers   111
SECTION 5.32 Critical Technologies   111
SECTION 5.33 Products   112
     
ARTICLE VI AFFIRMATIVE COVENANTS   112
SECTION 6.01 Compliance with Laws   112
SECTION 6.02 Financial Statements and Reporting   112
SECTION 6.03 Certificates; Other Information   114
SECTION 6.04 Notices   117
SECTION 6.05 Payment of Obligations   119
SECTION 6.06 Books and Records   119
SECTION 6.07 Inspection Rights   119
SECTION 6.08 Litigation Cooperation   119
SECTION 6.09 Use of Proceeds   119

 

- ii -

 

 

SECTION 6.10 Preservation of Existence, Etc.   119
SECTION 6.11 Maintenance of Properties   120
SECTION 6.12 Collateral and Guarantee Requirements; Formation or Acquisition of Subsidiaries   120
SECTION 6.13 Insurance   123
SECTION 6.14 Conduct of Business and SPV Compliance   123
SECTION 6.15 Controlled Accounts; Cash Management Systems   125
SECTION 6.16 Lender Meetings   125
SECTION 6.17 Supplemental Schedules   125
SECTION 6.18 Assigned Patents and Assigned Patent Rights   125
SECTION 6.19 Consent of Licensors   127
SECTION 6.20 Maintenance of Regulatory Permits, Contracts, Intellectual Property, Etc.   127
SECTION 6.21 Pari Passu Ranking   127
SECTION 6.22 Subsidiary Distributions; Upstreaming Cashflows; Investment Documents   128
SECTION 6.23 Critical Technologies   128
SECTION 6.24 Further Assurances   129
SECTION 6.25 Covenants Regarding Products and Compliance with Material Regulatory Permits   129
SECTION 6.26 Post-Restatement Obligations   129
SECTION 6.27 Second Restatement Effective Date Covenants   130
SECTION 6.28 Post-Second Restatement Closing Obligations   130
     
ARTICLE VII NEGATIVE COVENANTS   130
SECTION 7.01 Dispositions   130
SECTION 7.02 Changes in Business, Management, Ownership, or Business Locations   132
SECTION 7.03 Mergers or Acquisitions   132
SECTION 7.04 Liens   132
SECTION 7.05 Distributions; Investments   132
SECTION 7.06 Transactions with Affiliates   133
SECTION 7.07 Limitation on Negative Pledges   133
SECTION 7.08 Compliance   133
SECTION 7.09 Indebtedness   134
SECTION 7.10 Amendments to Organization Documents, Patent Assignment Agreement or Patent License Agreement, Accounting Methods and Fiscal Year   134
SECTION 7.11 Sanctions   134
SECTION 7.12 Patent Development and Enhancement   135
SECTION 7.13 Sales and Lease Backs   135
SECTION 7.14 Deposit Accounts   135
SECTION 7.15 Prepayments of Certain Indebtedness   135

 

- iii -

 

 

SECTION 7.16 Financial Covenants   135
SECTION 7.17 Pensions   136
SECTION 7.18 Centre of Main Interests and Establishment   136
     
ARTICLE VIII EVENTS OF DEFAULT   137
SECTION 8.01 Events of Default   137
SECTION 8.02 Rights and Remedies   140
     
ARTICLE IX GUARANTY   141
SECTION 9.01 Guaranty of the Obligations   141
SECTION 9.02 Contribution by Guarantors   142
SECTION 9.03 Payment by Guarantors   142
SECTION 9.04 Liability of Guarantors Absolute   142
SECTION 9.05 Waivers by Guarantors   144
SECTION 9.06 Guarantors’ Rights of Subrogation, Contribution, etc   145
SECTION 9.07 Subordination of Other Obligations   146
SECTION 9.08 Continuing Guaranty   146
SECTION 9.09 Authority of Guarantors or Borrower   146
SECTION 9.10 Collateral Matters   146
SECTION 9.11 Financial Condition of Borrower   147
SECTION 9.12 Bankruptcy, etc.   147
SECTION 9.13 Discharge of Guaranty Upon Sale of Guarantor   148
     
ARTICLE X AGENTS   148
SECTION 10.01 Appointment of Agents   148
SECTION 10.02 Powers and Duties   148
SECTION 10.03 General Immunity   149
SECTION 10.04 Agents Entitled to Act as Lender   150
SECTION 10.05 Delegation of Duties   150
SECTION 10.06 Lenders’ Representations, Warranties and Acknowledgment   150
SECTION 10.07 Right to Indemnity   151
SECTION 10.08 Successor Administrative Agent and Collateral Agent   151
SECTION 10.09 Collateral Documents and Guaranty   152
SECTION 10.10 Administrative Agent May File Proofs of Claim   153
     
ARTICLE XI [RESERVED]   153

 

- iv -

 

 

ARTICLE XII NOTICES, GOVERNING LAW, SUBMISSION TO JURISDICTION, JURY TRIAL WAIVER, AND JUDICIAL REFERENCE   153
SECTION 12.01 Notices   153
SECTION 12.02 Governing Law; Submission to Jurisdiction   154
SECTION 12.03 Jury Trial Waiver   154
SECTION 12.04 Additional Waivers in the Event of Enforcement   155
SECTION 12.05 APPOINTMENT OF PROCESS AGENT; SERVICE OF PROCESS   155
SECTION 12.06 Borrower as Agent for Notice for Loan Parties   156
SECTION 12.07 Loan Party Agent   156
     
ARTICLE XIII GENERAL PROVISIONS   157
SECTION 13.01 Successors and Assigns; Participations   157
SECTION 13.02 Costs and Expenses; Indemnification   159
SECTION 13.03 Time of Essence   160
SECTION 13.04 Severability of Provisions   160
SECTION 13.05 Amendments in Writing; Waiver; Integration;   161
SECTION 13.06 Counterparts   163
SECTION 13.07 Survival   163
SECTION 13.08 Affiliate Activities   163
SECTION 13.09 Electronic Execution of Documents   164
SECTION 13.10 Captions   164
SECTION 13.11 Construction of Agreement   164
SECTION 13.12 Relationship   164
SECTION 13.13 Third Parties   164
SECTION 13.14 Payments Set Aside   164
SECTION 13.15 Right of Setoff   164
SECTION 13.16 Interest Rate Limitation   165
SECTION 13.17 Securitization of Loans; Appointment of Agent   165
SECTION 13.18 Confidentiality   166
SECTION 13.19 No Fiduciary Duty   166
SECTION 13.20 Judgement Currency   167
SECTION 13.21 Corporate Seal   167
SECTION 13.22 Location of Closing   167
SECTION 13.23 Waiver of Immunity   167
SECTION 13.24 Intercreditor and Subordination Agreements   168
SECTION 13.25 Acknowledgement Regarding Any Supported QFCs   168
SECTION 13.26 English Language   168
SECTION 13.27 No Strict Construction   169
SECTION 13.28 Attachments   169
SECTION 13.29 Existing Credit Agreement; No Novation   169

 

- v -

 

 

APPENDICES  
   
Appendix A: Commitment
Appendix B: Principal Office
Appendix C: Performance Milestones
   
SCHEDULES  
   
Schedule 1.01(b):  Guarantors
Schedule 5.03: Governmental Authorization; Other Consents
Schedule 5.05: Financial Statements; No Material Adverse Effect
Schedule 5.09 Environmental Compliance
Schedule 5.13: Subsidiaries; Equity Interests
Schedule 5.17: Intellectual Property
Schedule 5.20: Business Locations; Taxpayer Identification Number
Schedule 5.23: Material Contracts
Schedule 5.24: Employee Matters
Schedule 5.25: Regulatory Restrictions
Schedule 5.33: Products
Schedule 6.03: Website Address
Schedule 7.04: Liens
Schedule 7.05: Investments
Schedule 7.09: Indebtedness
   
EXHIBITS  
   
Exhibit A-1: Form of Notice of Borrowing
Exhibit A-2: Form of Conversion/Continuation Notice
Exhibit A-3: Form of Initial Draft Notice of Borrowing
Exhibit B-1: Form of Note
Exhibit B-2: Form of Amended and Restated Note
Exhibit C: Form of Compliance Certificate
Exhibit D: Closing Agenda
Exhibit H: Form of Assignment and Assumption Agreement
Exhibit J: Forms of Tax Certificates
Exhibit K: Form of Counterpart Agreement
Exhibit L: Form of Solvency Certificate
Exhibit M: Form of Board Observation Rights Letter
Exhibit N: Form of Warrant

 

- vi -

 

 

SECOND AMENDED AND RESTATED CREDIT AGREEMENT

 

THIS SECOND AMENDED AND RESTATED CREDIT AGREEMENT dated as of May 18, 2023 (as the same may be further amended, restated, amended and restated, supplemented or otherwise modified from time to time, this “Agreement”), is entered into by, among others, airspAn networks Inc., a Delaware corporation (successor by merger to Artemis Merger Sub Corp.) (the “Initial Borrower” and together with each other Person that becomes a Borrower hereunder from time to time, each a “Borrower” and collectively, the “Borrowers”), AIRSPAN NETWORKS HOLDINGS INC. (formerly known as New Beginnings Acquisition Corp.), a Delaware corporation and the parent of the Initial Borrower (“Holdings”) and each Subsidiary of the Borrower that is identified as a guarantor on Schedule 1.01(b) hereto or that becomes a Guarantor hereunder from time to time, the Lenders from time to time party hereto and DBFIP ANI LLC, a Delaware limited liability company (“Fortress”), in its capacity as the administrative agent for the Lenders and other Secured Parties (Fortress, together with its successors and assigns in such capacity, the “Administrative Agent”) and as the collateral agent and trustee for the Lenders and other Secured Parties (Fortress, together with its successors and assigns in such capacity, the “Collateral Agent” and together with the Administrative Agent, each, an “Agent” and collectively, the “Agents”).

 

WITNESSETH

 

WHEREAS, the Borrower, the Guarantors, Agent, and the Lenders were party to that certain Reaffirmation and Omnibus Amendment Agreement dated as of December 30, 2020, which, among other things, amended and restated the Original Credit Agreement and replaced it, in its entirety with the Credit Agreement dated December 30, 2020, by, among others, the Borrower and certain Guarantors, the Lenders and the Agents (the “Initial Credit Agreement”) which was replaced in its entirety with that certain Amended and Restated Credit Agreement dated August 13, 2021, by, among others, the Borrower and certain Guarantors, the Lenders, and the Agents (as the same has been amended, restated, amended and restated, supplemented or otherwise modified prior to the date hereof, the “Existing Credit Agreement”);

 

WHEREAS, the Borrower, the Guarantors, Agent and the Lenders are party to that certain Limited Waiver and Consent, Second Amendment and Restatement of Credit Agreement and Reaffirmation of Loan Documents dated as of May 18, 2023 (the “Second Restatement”), pursuant to which the parties have agreed, subject to the satisfaction of the conditions precedent contained in the Second Restatement to amend, restate, supplement and modify the terms of the Existing Credit Agreement as described in the terms and conditions set forth herein; and

 

WHEREAS, it is the intent of the parties hereto that this Agreement does not constitute a novation of rights, obligations and liabilities of the respective parties (including the Obligations) existing under the Existing Credit Agreement or evidence payment of all or any of such obligations and liabilities and except as expressly amended hereby or by the Second Restatement and this Agreement, all such rights, obligation and liabilities shall continue and remain outstanding, and that this Agreement amends and restates in its entirety the Existing Credit Agreement.

 

NOW THEREFORE, in consideration of the premises and mutual agreements and subject to the terms and conditions set forth herein, and intending to be legally bound hereby, the parties agree as follows:

 

- 1 -

 

 

Article I
DEFINITIONS AND ACCOUNTING TERMS

 

Section 1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below:

 

Account” is any “account” as defined under the UCC with such additions to such term as may hereafter be made, and includes, without limitation, all accounts receivable and other sums owing to any Loan Party.

 

Accounting Change” is defined in Section 1.02(d)(ii).

 

Additional Asset Security Jurisdictions” is defined in Section 6.12(c)(ii).

 

Additional Asset Security Provider” is defined in Section 6.12(c)(ii).

 

Adjusted Term SOFR” means, for purposes of any calculation, the rate per annum equal to (a) Term SOFR for such calculation plus (b) the Term SOFR Adjustment.

 

Administration Fee” is defined in Section 2.02(b)(i)(A).

 

Administrative Agent” is defined in the preamble.

 

Adverse Proceeding” means any action, suit, proceeding (whether administrative, judicial or otherwise), governmental investigation or arbitration (whether or not purportedly on behalf of Holdings or any of its Subsidiaries) at law or in equity, or before or by any Governmental Authority, domestic or foreign (including any Environmental Claims), whether pending or, to the knowledge of Holdings or any of its Subsidiaries, threatened against or affecting Holdings or any of its Subsidiaries or any property of Holdings or any of its Subsidiaries.

 

Affected Principal Amount” means the principal amount of Loans and/or Delayed Draw Term Loan Commitments subject to Prepayment Events.

 

Affiliate” means, as applied to any Person (the “Specified Person”), any other Person directly or indirectly controlling, controlled by, or under common control with, the Specified Person. For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlling”, “controlled by” and “under common control with”), as applied to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of the Specified Person, whether through the ownership of voting securities or by contract or otherwise; provided, however, neither Softbank nor any member of the Softbank Group shall be deemed to be an Affiliate of FIG, of any Fortress Member, or of their respective Affiliates.

 

Agents” is defined in the preamble.

 

Aggregate Amounts Due” is defined in Section 2.04(a).

 

Aggregate Payments” is defined in Section 9.02.

 

Agreement” is defined in the preamble.

 

Agreement Currency” is defined in Section 13.20.

 

- 2 -

 

 

Airspan China” is defined in the definition of “Permitted Investments.”

 

Airspan Networks Israel” means Airspan Networks Ltd, a company organized and existing under the laws of the State of Israel.

 

Amendment and Restatement Agreement” means that certain Waiver and Consent, Second Amendment and Restatement and Joinder and Omnibus Agreement to Credit Agreement and other Loan Documents dated August 13, 2021, by and among Borrower, Holdings, each Guarantor party thereto, the Lenders party thereto and the Agent.

 

Amortization Holiday Period” shall mean the period commencing on the Second Restatement Effective Date and ending on the earlier of (i) the Closing Date (as defined in the Mimosa Purchase Agreement) and (ii) September 30, 2023.

 

Applicable Default Interest Rate” is defined in clause (d)(i) of the definition of “Applicable Rate.”

 

Applicable Prepayment Premium” is defined in Section 2.01(d)(iv).

 

Applicable Rate” means, as of any date of determination, with respect to the interest rate of any Loan (or any portion thereof):

 

(a) with respect to the Initial Term Loan:

 

(i) The relevant Applicable Rate shall be set at the respective level indicated below based upon the Net EBITDA Leverage Ratio of Holdings and its Subsidiaries for the Test Period for which such financial statements were delivered as of the Financial Statement Delivery Date:

 

Initial Term Loan Pricing Grid
Level Net EBITDA Leverage Ratio

Base Rate Loan

SOFR Loan

I Less than or equal to 2.00:1.00 The Applicable Rate shall be the Base Rate plus 9.00% per annum, of which the Margin Cash Component shall be the Base Rate plus 5.50% and the Margin PIK Component shall be 3.50% The Applicable Rate shall be Adjusted Term SOFR plus 10.00% per annum, of which the Margin Cash Component shall be the Adjusted Term SOFR plus 5.50% and the Margin PIK Component shall be 4.50%
II Less than or equal to 3.00:1.00 but greater than 2.00:1.00 The Applicable Rate shall be the Base Rate plus 10.00% per annum, of which the Margin Cash Component shall be the Base Rate plus 5.50% and the Margin PIK Component shall be 4.50% The Applicable Rate shall be Adjusted Term SOFR plus 11.00% per annum, of which the Margin Cash Component shall be Adjusted Term SOFR plus 5.50% and the Margin PIK Component shall be 5.50%

 

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III Less than or equal to 4.00:1.00 but greater than 3.00:1.00 The Applicable Rate shall be the Base Rate plus 11.00% per annum, of which the Margin Cash Component shall be the Base Rate plus 5.50% and the Margin PIK Component shall be 5.50% The Applicable Rate shall be Adjusted Term SOFR plus 12.00% per annum, of which the Margin Cash Component shall be Adjusted Term SOFR plus 5.50% and the Margin PIK Component shall be 6.50%
IV Less than or equal to 5.00:1.00 but greater than 4.00:1.00 The Applicable Rate shall be the Base Rate plus 12.00% per annum, of which the Margin Cash Component shall be the Base Rate plus 5.50% and the Margin PIK Component shall be 6.50% The Applicable Rate shall be Adjusted Term SOFR plus 13.00% per annum, of which the Margin Cash Component shall be the Adjusted Term SOFR plus 5.50% and the Margin PIK Component shall be 7.50%
V Greater than 5.00:1.00 The Applicable Rate shall be the Base Rate plus 13.00% per annum, of which the Margin Cash Component shall be the Base Rate plus 5.50% and the Margin PIK Component shall be 7.50% The Applicable Rate shall be Adjusted Term SOFR plus 14.00% per annum, of which the Margin Cash Component shall be Adjusted Term SOFR plus 5.50% and the Margin PIK Component shall be 8.50%

 

(ii) If the Net EBITDA Leverage Ratio changes upon delivery of any financial statements required under Section 6.02(a), Section 6.02(b) or Section 6.02(c), such change in the Applicable Rate will be effective as of the date on which any such financial statement is delivered, irrespective of whether it is in the middle of an interest period or when notice of such change in the Net EBITDA Leverage Ratio has been furnished by the Loan Parties to the Administrative Agent and the Lenders. Each change in the Applicable Rate will apply during the period commencing on the effective date of such change and ending on the date immediately preceding the effective date of the next such change. Notwithstanding anything to the contrary in this Agreement, the Applicable Rate with respect to the Initial Term Loan shall be determined in accordance with Level V for the period from the Second Restatement Date until the later of the date of (i) the delivery of the financial statements with respect to the Test Period ending June 30, 2023 and (ii) the consummation of the Divestiture Transaction.

 

(b) with respect to any Delayed Draw Term Loan:

 

(i) The relevant Applicable Rate shall be set at the respective level indicated below based upon the Net EBITDA Leverage Ratio of Holdings and its Subsidiaries for the Test Period for which such financial statements were delivered as of the Financial Statement Delivery Date:

 

Delayed Draw Term Loan Pricing Grid
Level Net EBITDA Leverage Ratio

Base Rate Loan

SOFR Loan

I Less than or equal to 2.00:1.00 The Applicable Rate shall be the Base Rate plus 6.00% per annum, of which the Margin Cash Component shall be the Base Rate plus 5.50% and the Margin PIK Component shall be 0.50% The Applicable Rate shall be Adjusted Term SOFR plus 7.00% per annum, of which the Margin Cash Component shall be the Adjusted Term SOFR plus 5.50% and the Margin PIK Component shall be 1.50%

 

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II Less than or equal to 3.00:1.00 but greater than 2.00:1.00 The Applicable Rate shall be the Base Rate plus 7.00% per annum, of which the Margin Cash Component shall be the Base Rate plus 5.50% and the Margin PIK Component shall be 1.50% The Applicable Rate shall be Adjusted Term SOFR plus 8.00% per annum, of which the Margin Cash Component shall be Adjusted Term SOFR plus 5.50% and the Margin PIK Component shall be 2.50%
III Less than or equal to 4.00:1.00 but greater than 3.00:1.00 The Applicable Rate shall be the Base Rate plus 8.00% per annum, of which the Margin Cash Component shall be the Base Rate plus 5.50% and the Margin PIK Component shall be 2.50% The Applicable Rate shall be Adjusted Term SOFR plus 9.00% per annum, of which the Margin Cash Component shall be Adjusted Term SOFR plus 5.50% and the Margin PIK Component shall be 3.50%
IV Less than or equal to 5.00:1.00 but greater than 4.00:1.00 The Applicable Rate shall be the Base Rate plus 9.00% per annum, of which the Margin Cash Component shall be the Base Rate plus 5.50% and the Margin PIK Component shall be 3.50% The Applicable Rate shall be Adjusted Term SOFR plus 10.00% per annum, of which the Margin Cash Component shall be the Adjusted Term SOFR plus 5.50% and the Margin PIK Component shall be 4.50%
V Greater than 5.00:1.00 The Applicable Rate shall be the Base Rate plus 10.00% per annum, of which the Margin Cash Component shall be the Base Rate plus 5.50% and the Margin PIK Component shall be 4.50% The Applicable Rate shall be Adjusted Term SOFR plus 11.00% per annum, of which the Margin Cash Component shall be Adjusted Term SOFR plus 5.50% and the Margin PIK Component shall be 5.50%

 

(ii) If the Net EBITDA Leverage Ratio changes upon delivery of any financial statements required under Section 6.02(a), Section 6.02(b) or Section 6.02(c), such change in the Applicable Rate will be effective as of the date on which any such financial statement is delivered, irrespective of whether it is in the middle of an interest period or when notice of such change in the Net EBITDA Leverage Ratio has been furnished by the Loan Parties to the Administrative Agent and the Lenders. Each change in the Applicable Rate will apply during the period commencing on the effective date of such change and ending on the date immediately preceding the effective date of the next such change. Notwithstanding anything to the contrary in this Agreement, the Applicable Rate with respect to the Delayed Draw Term Loan shall be determined in accordance with Level V for the period from the Second Restatement Date until the later of the date of (i) the delivery of the financial statements with respect to the Test Period ending June 30, 2023 and (ii) the consummation of the Divestiture Transaction.

 

(c) With respect to the Tranche 2 Term Loan, the relevant Applicable Rate shall be eight percent (8.00%).

 

(d) Notwithstanding the foregoing:

 

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(i) the Applicable Rate shall be increased by three and three-quarters of one percent (3.75%) above the then applicable rates set forth in clause (a) and clause (b) above (such rate, the “Applicable Default Interest Rate” (provided that, with respect to a SOFR Loan, the determination of the applicable interest rate is subject to Section 2.02(a)(v) to the extent that Loans may not be converted to, or continued as, SOFR Loans pursuant thereto)): (x) (i) immediately upon the occurrence of an Event of Default described in Section 8.01(h) or 8.01(i), or (ii) at the option of the Requisite Lenders, upon the occurrence and during the continuation of any other Default or Event of Default other than those specified in clause (i) above, or (y) if for any period, the Administrative Agent does not receive the financial statements and certificates described in Section 6.02(a), Section 6.02(b), Section 6.02(c), Section 6.03(b) or Section 6.27 of this Agreement, for the period commencing on the date such financial statements and certificate were required to be delivered through the date on which such financial statements and certificate are delivered to the Administrative Agent; and

 

(ii) in the event that any financial statement or certificate described in clause (d)(i)(y) above is shown to be inaccurate (regardless of whether this Agreement or any Term Loan Commitments are in effect when such inaccuracy is discovered), and such inaccuracy, if corrected, would have led to the application of a higher Applicable Rate for any fiscal period, then the Applicable Rate for such fiscal period that such financial statement or certificate covered shall be adjusted retroactively to reflect the correct Applicable Rate for such period, and the Loan Parties shall promptly make payments to the Administrative Agent for the account of the Lenders, the accrued additional interest owing as a result of such adjustment for such period with respect to the Loans owed thereby.

 

Approved Fund” means any fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender or an Affiliate of a Lender.

 

Asset Disposition” means (a) the Divestiture Transaction and/or (b) any other Transfer (i) made pursuant to Section 7.01(a) or (ii) to the extent not permitted hereunder.

 

Asset Security Jurisdictions” is defined in Section 6.12(c)(ii).

 

Asset Security Providers” means Holdings, the Borrower and any Subsidiary of Holdings that is or becomes a Loan Party and provides asset security pursuant to Section 3.01, Section 6.12, Section 6.24, Section 6.26 and/or the Collateral and Guarantee Requirements hereof.

 

Assigned Patent Rights” means all of the following, whether now owned or hereafter acquired or arising:

 

(a) all Assigned Patents;

 

(b) all patents and patent applications (i) to which any of the Assigned Patents directly or indirectly claims priority or (ii) for which any of the Assigned Patents directly or indirectly forms a basis for priority;

 

(c) all reissues, reexaminations, extensions, renewals, continuations, continuations in part, continuing prosecution applications, requests for continuing examinations, and divisionals of any item in any of the foregoing categories (a) and (b);

 

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(d) all foreign patents, patent applications, and counterparts relating to any item in any of the foregoing categories (a) through (c), including certificates of invention, utility models, industrial design protection, design patent protection and other governmental grants or issuances;

 

(e) all items in any of the foregoing in categories (b) through (d), whether or not expressly listed on the Disclosure Schedule and whether or not claims in any of the foregoing have been rejected, withdrawn, cancelled, or the like;

 

(f) inventions, invention disclosures, and discoveries described in any of the Assigned Patents or any item in the foregoing categories (b) through (e) that: (i) are included in any claim in the Assigned Patents or any item in the foregoing categories (b) through (e); (ii) are subject matter capable of being reduced to a patent claim in a reissue or reexamination proceeding brought on any of the Assigned Patents or any item in the foregoing categories (b) through (e); or (iii) could have been included as a claim in any of the Assigned Patents or any item in the foregoing categories (b) through (e);

 

(g) all rights to apply in any or all countries of the world for Patents or other governmental grants or issuances of any type related to any item in any of the foregoing categories (a) through (f), including under the Paris Convention for the Protection of Industrial Property, the International Patent Cooperation Treaty, or any other convention, treaty, agreement, or understanding;

 

(h) all causes of action (whether known or unknown or whether currently pending, filed, or otherwise) and other enforcement rights under, or on account of, any of the Assigned Patents or any item in any of the foregoing categories (b) through (g), including all causes of action and other enforcement rights for (i) damages, (ii) injunctive relief and (iii) any other remedies of any kind for past, current, and future infringement, misappropriation or other violation; and

 

(i) all rights to collect income, royalties, damages and other payments due or payable under or with respect to any of the Assigned Patents or any item in any of the foregoing categories (b) through (h).

 

Assigned Patents” means all Patents issued to, or for which applications are pending in the name of, Holdings or any of its Subsidiaries and (a) assigned to IP Hold-Co in accordance with the Patent Assignment Agreement, including without limitation any Patents described on Schedule 5.17(a) or that are hereafter acquired by, or filed in the name of, Holdings or any of its Subsidiaries, including Patents that are the subject of Section 6.18.

 

Assignment Agreement” means an Assignment and Assumption Agreement substantially in the form of Exhibit H, with such amendments or modifications as may be approved by Administrative Agent.

 

Attorneys’ Fees” means and shall include any and all reasonable attorney’s fees that are incurred by the Collateral Agent or any other Secured Party incidental to, arising out of, or in any way in connection with the Collateral Agent’s or other Secured Party’s interests in, or defense of, any action, claim, proceeding or the Collateral Agent’s or other Secured Party’s enforcement of its rights and interests with respect to any Collateral or otherwise under any Loan, or any Loan Document, which shall include all attorneys’ fees incurred by the Collateral Agent and other Secured Parties (including, without limitation, all expenses of litigation or preparation therefor whether or not the Collateral Agent or applicable Secured Party is a party thereto) whether or not a suit or action is commenced, and all costs in collection of sums due during any work out or with respect to settlement negotiations, or the cost to defend the Collateral Agent or other Secured Party or to enforce any of its rights, including, without limitation, during any bankruptcy or other insolvency proceeding.

 

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Audited Financial Statements” means (x) the audited consolidated balance sheet of Borrower and its Subsidiaries on a consolidated basis for the fiscal year ended 2019 and 2020, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal year of Borrower and its Subsidiaries, including the notes thereto, (y) the audited consolidated balance sheet of Holdings and its Subsidiaries on a consolidated basis for the fiscal year ended December 31, 2020 and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal year of Holdings and its Subsidiaries, including the notes thereto, and (z) for each other fiscal year ended thereafter, the audited consolidated balance sheet of Holdings and its Subsidiaries on a consolidated basis for the fiscal year ended, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal year of Holdings and its Subsidiaries, including the notes thereto, in each case, which audited financial statements shall be accompanied by a report and opinion prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception (other than a “going concern” or like qualification or exception in either case resulting solely from an upcoming maturity date of any Permitted Indebtedness occurring within one year from the time such opinion is delivered or otherwise permitted in writing by the Administrative Agent) or any qualification or exception as to the scope of such audit.

 

Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, if such Benchmark is a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an interest period pursuant to this Agreement as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to Section 2.05(e) of this Agreement.

 

Base Rate” means, for any day, a rate per annum equal to the greater of (i) the Prime Rate in effect on such day, but in no event less than the Base Rate Floor and (ii) the Federal Funds Effective Rate in effect on such day plus one-half of one percent (½ of 1%), but in no event less than the Base Rate Floor and (iii) Adjusted Term SOFR in effect on such day for an Interest Period of one (1) month plus one percent (1%), but in no event less than the Base Rate Floor. Any change in the Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or Adjusted Term SOFR shall be effective from and including the effective day of such change in the Prime Rate, the Federal Funds Effective Rate or Adjusted Term SOFR, respectively. Base Rate, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such borrowing, are bearing interest at a rate determined by the reference to the Base Rate.

 

Base Rate Floor” means one and one half of one percent (1.50%) per annum.

 

Base Rate Loan” means any Loan at any time which it bears interest at or by reference to the Base Rate in accordance with the term hereof.

 

Base Rate Term SOFR Determination Day” is defined in clause (b) of the definition of “Term SOFR”.

 

Benchmark” means, initially, the Term SOFR Reference Rate; provided that if a Benchmark Transition Event has occurred with respect to the Term SOFR Reference Rate or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 2.05(a). Any reference to “Benchmark” shall include, as applicable, the published component used in the calculation thereof.

 

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Benchmark Replacement” means, with respect to any Benchmark Transition Event, the first alternative set forth below that can be determined by the Agent:

 

(a) the sum of (i) Daily Simple SOFR and (ii) 0.10% (10 basis points) for an Available Tenor of one-month’s duration or three-months’ duration; or

 

(b) the sum of: (i) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower giving due consideration to (A) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (B) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement to the then-current Benchmark for Dollar-denominated syndicated credit facilities and (ii) the related Benchmark Replacement Adjustment.

 

If the Benchmark Replacement as determined pursuant to clause (a) or (b) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.

 

Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Borrower giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities at such time.

 

Benchmark Replacement Date” means a date and time determined by the Administrative Agent, which date shall be no later than the earliest to occur of the following events with respect to the then-current Benchmark:

 

(a) in the case of clause (a) or (b) of the definition of “Benchmark Transition Event”, the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide such Benchmark (or such component thereof) or, if such Benchmark is a term rate, all Available Tenors of such Benchmark (or such component thereof); or

 

(b) in the case of clause (c) of the definition of “Benchmark Transition Event”, the first date on which such Benchmark (or the published component used in the calculation thereof) has been or, if such Benchmark is a term rate, all Available Tenors of such Benchmark (or such component thereof) have been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be non-representative; provided that such non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause (c) and even if such Benchmark (or such component thereof) or, if such Benchmark is a term rate, any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date.

 

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For the avoidance of doubt, if such Benchmark is a term rate, the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).

 

Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark:

 

(a) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide such Benchmark (or such component thereof) or, if such Benchmark is a term rate, all Available Tenors of such Benchmark (or such component thereof), 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 such component thereof) or, if such Benchmark is a term rate, any Available Tenor of such Benchmark (or such component thereof);

 

(b) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide such Benchmark (or such component thereof) or, if such Benchmark is a term rate, all Available Tenors of such Benchmark (or such component thereof) 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 such component thereof) or, if such Benchmark is a term rate, any Available Tenor of such Benchmark (or such component thereof); or

 

(c) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such Benchmark (or such component thereof) or, if such Benchmark is a term rate, all Available Tenors of such Benchmark (or such component thereof) are not, or as of a specified future date will not be, representative.

 

For the avoidance of doubt, if such Benchmark is a term rate, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).

 

Benchmark Unavailability Period” means, the period (if any) (a) beginning at the time that a Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.05 hereto and (b) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.05 hereto.

 

Beneficiary” means Administrative Agent, Collateral Agent and each Lender.

 

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BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. § 1841(k)) of such party.

 

Board Observation Rights Letter” means that certain board observation rights letter in the form attached hereto as Exhibit M and delivered by Holdings to the Administrative Agent on the First Restatement Effective Date.

 

Board of Directors” means, with respect to any Person, (i) in the case of any corporation, the board of directors of such Person, (ii) in the case of any limited liability company, the board of managers or managing member of such Person (or, in relation to any limited liability company incorporated under the laws of England and Wales, the board of directors of such Person), (iii) in the case of any partnership, the board of directors of the general partner of such Person and (iv) in any other case, the functional equivalent of the foregoing.

 

Board Reporting Materials” is defined in Section 6.03(b).

 

Borrower” and “Borrowers” are defined in the preamble.

 

Borrowing” means Loans of the same Type, made, converted or continued on the same date and, in the case of SOFR Loans, as to which a single Interest Period is in effect.

 

Borrowing Date” means the date of any Borrowing made hereunder.

 

Borrowing Period” means the period beginning on the Second Restatement Effective Date and ending on the earliest of:

 

(a) September 30, 2023, or such later date as agreed in writing by the Lenders holding the Delayed Draw Term Commitments in their sole discretion;

 

(b) the date the Delayed Draw Term Loan Commitments are permanently reduced to zero by the making of Delayed Draw Term Loans; and

 

(c) the date of the termination of the Delayed Draw Term Loan Commitments pursuant to Section 8.01(a).

 

Business Combination” means the merger, combination or consolidation of Holdings or any of its Subsidiaries with or into any Person or the sale of all or substantially all of the assets, stock or other evidence of beneficial ownership of Holdings or any of its Subsidiaries.

 

Business Day” is any day that is not a Saturday, Sunday or a day on which commercial banks are authorized to close under the Laws of the State of New York.

 

Capital Expenditures” means expenditures for any fixed assets or improvements, replacements, substitutions or additions thereto or therefor which have a useful life of more than one year.

 

Capitalized Lease” means, with respect to any Person, any lease of (or other arrangement conveying the right to use) real or personal property by such Person as lessee that is required under GAAP to be capitalized on the balance sheet of such Person.

 

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Capitalized Lease Obligations” means, with respect to any Person, obligations of such Person and its Subsidiaries under Capitalized Leases, and, for purposes hereof, the amount of any such obligation shall be the capitalized amount thereof determined in accordance with GAAP. Notwithstanding the foregoing, for purposes of this Agreement, any lease (whether entered into before or after December 31, 2018) that, in the good faith determination of such Person, would have been classified as an operating lease pursuant to IFRS as in effect on December 31, 2018 shall be deemed to be an operating lease and shall not be included in the definition of “Capitalized Lease Obligations.”

 

Cash” means money, currency or a credit balance in any demand or Deposit Account; provided, however, that notwithstanding anything to the contrary contained herein, for purposes of calculating compliance with the requirements of Article III and Article VII hereof “Cash” shall exclude any amounts that would not be considered “cash” under GAAP or “cash” as recorded on the books of the Borrower and the Guarantors.

 

Cash Equivalents” means (a) marketable direct obligations issued or unconditionally guaranteed by the United States or any agency or any State thereof having maturities of not more than one (1) year from the date of acquisition; (b) commercial paper maturing no more than one (1) year after its creation and having a rating of at least A 1 or P 1 from either Standard & Poor’s Ratings Group or Moody’s Investors Service, Inc.; (c) certificates of deposit maturing no more than one (1) year after issue; and (d) money market funds in which at least ninety-five percent (95.0%) of the assets of such fund constitute Cash Equivalents of the kinds described in clauses (a) through (c) of this definition.

 

Change in Law” means the occurrence of any of the following: (a) the adoption or introduction of, or any change in any applicable law, treaty, rule or regulation (whether domestic or foreign) now or hereafter in effect and whether or not applicable to the Secured Parties on such date, (b) any change in interpretation, administration or implementation of any such law, treaty, rule or regulation by any Governmental Authority or (c) the issuance, making or implementation by any Governmental Authority of any interpretation, administration, request, regulation, guideline, or directive (whether or not having the force of law), including any risk-based capital guidelines; provided however that for purposes of this definition, (x) a change in law, treaty, rule, regulation, interpretation, administration or implementation shall include, without limitation, any change made or which becomes effective on the basis of a law, treaty, rule, regulation, interpretation administration or implementation then in force, the effective date of which change is delayed by the terms of such law, treaty, rule, regulation, interpretation, administration or implementation, (y) the Dodd-Frank Wall Street Reform and Consumer Protection Act (Pub. L. 111-203, H.R. 4173) and all requests, rules, regulations, guidelines, interpretations or directives promulgated thereunder or issued in connection therewith shall be deemed to be a “Change in Law”, regardless of the date enacted, adopted, issued, implemented, or promulgated, whether before or after the Closing Date and (z) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall each be deemed to be a “Change in Law”, regardless of the date enacted, adopted, issued, implemented, or promulgated, whether before or after the Closing Date.

 

Change of Control” means the occurrence of any of: (i) the Key Investors shall fail to beneficially and of record own and control (directly or indirectly), at least fifty percent (50%) on a fully diluted basis of the aggregate outstanding voting and economic power of the Equity Interests of Holdings (inclusive of warrants and other convertible instruments) owned by the Key Investors on the First Restatement Effective Date; (ii) an acquisition by an individual, legal entity or “group” (as described in Rule 13d-5(b)(1) promulgated under the Exchange Act) of effective control (whether through legal or beneficial ownership of Equity Interests of Holdings, by contract or otherwise) of in excess of fifty percent (50%) of the Equity Interests of Holdings, (iii) Holdings or any Subsidiary thereof sells or transfers all or any substantial portion of its assets to another Person (other than the Liens under the Loan Documents and Transfers, Investments and Business Combinations expressly permitted by Article VII), (iv) (x) at any time, Holdings shall cease to own and control, of record and beneficially, directly or indirectly, one hundred percent (100%) of the aggregate voting and economic power of the Equity Interests of each Subsidiary of Holdings (other than the IP Hold-Co) free and clear of all Liens (except Permitted Liens) or (y) at any time, Borrower shall cease to own and control, of record and beneficially, directly or indirectly, at least ninety nine and eight tenths percent (99.8%) of the aggregate voting and economic power of the Equity Interests of IP Hold-Co free and clear of all Liens (except for Permitted Liens), or (v) a “change of control” occurs under the Note Purchase Documents or any other Material Indebtedness (other than the Loan Obligations) of Holdings or any of its Subsidiaries. For the avoidance of doubt, no “Change of Control” shall be deemed to have occurred under this Agreement solely pursuant to the consummation of the Divestiture Transaction in accordance with the terms of the Mimosa Purchase Agreement as in effect on March 8, 2023.

 

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Class” means (a) with respect to Lenders, each of the following classes of Lenders: (i) Lenders having Initial Term Loan Exposure, (ii) Lenders having Tranche 2 Term Loan Exposure and (iii) Lenders having Delayed Draw Term Loan Exposure, and (b) with respect to Loans, each of the following classes of Loans: (i) Initial Term Loans, (ii) Tranche 2 Term Loans, and (iii) Delayed Draw Term Loans.

 

Closing Agenda” means that certain Closing Agenda attached hereto as Exhibit D.

 

Closing Date” means December 30, 2020.

 

Closing Date Term Loans” is defined in Section 2.01(a)(i)(A).

 

Code” means the means the Internal Revenue Code of 1986, as amended from time to time.

 

Collateral” means collectively, (a) all of the real, personal and mixed property (including Equity Interests) in which Liens are granted or purported to be granted pursuant to any of the Collateral Documents as security for the Obligations; (b) all products, proceeds, rents and profits of the foregoing; (c) all of each Loan Party’s books and records related to any of the foregoing; and (d) all of the foregoing, whether now owned or existing or hereafter acquired or arising or in which any Loan Party now has or hereafter acquires any rights; in each case, other than Excluded Assets.

 

Collateral Agent” is defined in the preamble.

 

Collateral and Guarantee Requirement” means, at any time, the requirement that:

 

(a) the Agent shall have received each Collateral Document required to be delivered at such time as may be designated therein, pursuant to the terms of the Collateral Documents or Section 6.12, Section 6.15, Section 6.24 or Section 6.26, subject, in each case, to the limitations and exceptions of this Agreement, duly executed by each Loan Party thereto;

 

(b) all Guaranteed Obligations shall have been unconditionally guaranteed by each Subsidiary of Holdings organized or formed in an Asset Security Jurisdiction (as hereinafter defined) (other than the Specified Immaterial Foreign Subsidiary) including those that are listed on Schedule 1.01(b) hereto;

 

(c) except as otherwise provided hereunder or under any Collateral Document, the Obligations and the Guaranteed Obligations shall have been secured by a first-priority security interest in all of the Equity Interests of each Subsidiary which is organized or formed in an Asset Security Jurisdiction (other than Japan unless and until required to be pledged pursuant to Section 6.12) owned by Holdings and the other Loan Parties;

 

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(d) except to the extent otherwise provided hereunder or under any Collateral Document, the Obligations and the Guaranteed Obligations shall have been secured by a perfected first-priority security interest in, and mortgages on, substantially all tangible and intangible assets of each Loan Party (including, without limitation, accounts receivable, insurance, inventory, equipment, investment property, Intellectual Property, other general intangibles, owned (but not leased) Material Real Property and proceeds of the foregoing, but excluding Excluded Assets), in each case, with the priority required by the Collateral Documents;

 

(e) [Reserved];

 

(f) the Collateral Agent shall have received (i) counterparts of a Mortgage with respect to each Material Real Property required to be delivered pursuant to Section 3.01, the Resignation Agreement or Exhibit E of the Reaffirmation and Omnibus Amendment Agreement (if applicable), Section 6.12, Section 6.24 and/or Section 6.26 (the “Mortgaged Properties”), within the time periods set forth therein, duly executed and delivered by the record owner of such property together with evidence that counterparts of the Mortgages are in form suitable for filing or recording in all filing or recording offices that the Collateral Agent may deem reasonably necessary or desirable in order to create a valid and subsisting perfected Lien on the property and/or rights described therein in favor of the Collateral Agent for the benefit of the Secured Parties and that all filing and recording taxes and fees have been paid or otherwise provided for, (ii) a title insurance policy for such property or the equivalent or other form (if applicable) available in each applicable jurisdiction (the “Mortgage Policies”) insuring the Lien of each such Mortgage as a valid Lien on the property described therein, free of any other Liens except Permitted Liens, in amounts (not to exceed the value of the real properties covered thereby) and together with such endorsements, coinsurance and direct access reinsurance as the Collateral Agent may reasonably request and providing for such other affirmative insurance as the Collateral Agent shall reasonably request (including endorsements for future advances under the Loan Documents), (iii) if requested by the Agent, a Survey of such property, provided that new or updated Surveys will not be required if an existing survey, ExpressMap or other similar documentation is available and survey coverage (including deletion of the general survey and issuance of survey-related endorsements) is available for the Mortgage Policies without the need for such new or updated Surveys, (iv) an opinion of local counsel, with respect to the execution, delivery, enforceability and perfection of the security interests created by the Mortgages and any related fixture filings in form and substance reasonably satisfactory to the Collateral Agent, (v) and other documents (including subordination or pari passu confirmations, and lien searches) as the Collateral Agent may reasonably request with respect to any such Mortgaged Property and (vi) to the extent reasonably requested by the Administrative Agent, if such Loan Party is in receipt of a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination, and if any improvements on such Mortgaged Property are located in a special flood hazard area, (1) a notice about special flood hazard area status and flood disaster assistance duly executed by the applicable Loan Parties and (2) evidence of insurance required by Section 6.13 and/or the applicable Collateral Documents in form and substance reasonably satisfactory to the Agent;

 

(g) (i) except with respect to intercompany Indebtedness, if any Indebtedness for borrowed money in a principal amount in excess of One Million Dollars ($1,000,000) (individually) is owing to any Loan Party and such Indebtedness is evidenced by a promissory note, the Collateral Agent shall have received such promissory note, together with undated instruments of transfer with respect thereto endorsed in blank and (ii) with respect to intercompany Indebtedness, all Indebtedness of Holdings and each of its Subsidiaries shall be subject to the Intercompany Subordination Agreement and upon request of the Agent, any Indebtedness that is owing to any Loan Party (or Person required to become a Loan Party) shall be evidenced by a subordinated intercompany note (in form and substance satisfactory to the Agent and otherwise conforming with the requirements of the Intercompany Subordination Agreement), and such intercompany note shall be delivered to the Collateral Agent, along with undated instruments of transfer with respect thereto endorsed in blank;

 

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(h) the Collateral Agent shall have received all certificates, agreements, documents and instruments, including, Uniform Commercial Code financing statements (or equivalent) and Control Agreements or as applicable notices and acknowledgement or equivalent with respect to deposit accounts, securities accounts or commodities accounts or other account Collateral, to the extent required by this Agreement, the Collateral Documents or as reasonably requested by the Collateral Agent to be filed, delivered, registered or recorded to create the Liens intended to be created by the Collateral Documents and perfect such Liens to the extent required by, and with the priority required by, the Collateral Documents and the other provisions of the term “Collateral and Guarantee Requirement,” shall have been filed, registered or recorded or delivered to the Administrative Agent for filing, registration or recording; and

 

(i) at any time any Collateral with a book value in excess of Seven Hundred and Fifty Thousand Dollars ($750,000) (when aggregated with all other Collateral at the same location) is located on any real property in a state of the United States or the District of Columbia (whether such real property is now existing or acquired after the Closing Date) which is not owned by a Loan Party, or is stored on the premises of a bailee, warehouseman, or similar party, use commercially reasonable efforts to obtain written subordinations or waivers or collateral access agreements, as the case may be, in form and substance reasonably satisfactory to the Collateral Agent.

 

Notwithstanding the foregoing provisions of this definition or anything in this Agreement or any other Loan Document to the contrary, (a) with respect to leases of real property entered into by any Loan Party, such Loan Party shall not be required to take any action with respect to creation or perfection of security interests with respect to such leases; provided that each Loan Party, as applicable, shall use commercially reasonable efforts to deliver landlord lien waivers, estoppels and collateral access letters and equivalent in respect of each such leased real property required by clause (h) above, (b) Liens required to be granted from time to time pursuant to the Collateral and Guarantee Requirement shall be subject to exceptions and limitations set forth in the Collateral Documents and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and the Borrower, (c) prior to a Default, no perfection actions other than a UCC-filing shall be required in the United States, or in any state of the United States or the District of Columbia with respect to (i) motor vehicles and other assets and personal property subject to certificates of title with an individual book value of less than Two Hundred and Fifty Thousand Dollars ($250,000) except to the extent perfection is accomplished by the filing of a UCC financing statement or equivalent under applicable Law and letter of credit rights with a value of less than Two Hundred and Fifty Thousand Dollars ($250,000), except to the extent constituting a supporting obligation for other Collateral as to which perfection is accomplished by the filing of a UCC financing statement or equivalent under applicable Law (it being understood that no actions shall be required to perfect a security interest in assets subject to certificates of title or letter of credit rights, other than the filing of a UCC financing statement or equivalent under applicable Law), or (ii) commercial tort claims with an individual value of less than Two Hundred and Fifty Thousand Dollars ($250,000), (d) no perfection actions shall be required in the United States or any state of the United States or the District of Columbia with respect to any deposit account, securities account or commodities account which is an Excluded Account or accounts of the Loan Parties which have average monthly balances on deposit of less than One Hundred and Fifty Thousand Dollars ($150,000) individually and Two Hundred Thousand Dollars ($200,000) in the aggregate (such accounts, “De Minimis Accounts”), (e) unless required pursuant to Section 6.24 with respect to an additional Asset Security Jurisdiction after the Closing Date, no actions in any non-U.S. jurisdiction that is not an Existing Asset Security Jurisdiction (as hereinafter defined) or required by the Laws of any non-U.S. jurisdiction that is not an Existing Asset Security Jurisdiction shall be required to be taken to create any security interests in assets located or titled outside of the then applicable Asset Security Jurisdictions or to perfect or make enforceable any security interests in any assets (it being understood that there shall be no Collateral Document (or other security agreements or pledge agreements) governed under the laws of any non-U.S. jurisdiction that is not an Asset Security Jurisdiction), (f) no actions shall be required to be taken to perfect any security interest in Equity Interests other than Equity Interests of each Subsidiary which is organized or formed in an Asset Security Jurisdiction (excluding Japan) owned by Holdings, the Borrower or any Subsidiary Guarantor, (g) so long as the Indebtedness evidenced by the Softbank Loan Documents remains outstanding, there shall be no requirement to take any actions to grant or perfect any security interest in the Dense Air Group (including in the Equity Interests issued by any member thereof), and (h) the Specified Immaterial Foreign Subsidiary shall be excluded from the Collateral and Guarantee Requirements at all times such Person qualifies as a Specified Immaterial Foreign Subsidiary.

 

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The Collateral Agent may grant extensions of time for the provision or perfection of security interests in, or the obtaining of Mortgages, Mortgage Policies and Surveys with respect to, particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrower, that provision or perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.

 

Collateral Documents” means each of the Note Purchase Agreement, the Note Purchase Documents, each of the Loan Documents, the UK Security Documents, the Israeli Security Documents, the Japanese Security Documents, each Security Document, each Control Agreement, the Perfection Certificate and each other collateral document, debenture, mortgage, share charge, pledge, security agreement, intellectual property security agreement and any other similar document, notices, instruments or agreements entered into as of the Closing Date or from time to time thereafter pursuant to the requirements of Section 6.12 or 6.26 or any of the Loan Documents and all other collateral access agreements, mortgages, notices of pledge of accounts; perfection certificates, financing statements, security trustee deeds, collateral assignment agreements, deeds of trust, collateral access arrangements, collateral assignments, collateral reports, share transfer forms, powers of attorney and other similar instruments, documents, notices, acknowledgments, filings, registrations, endorsements delivered from time to time by any Loan Parties pursuant to this Agreement or any of the other Loan Documents in order to evidence, perfect, protect, assign, or grant a Lien on any real, personal or mixed property of that Person as security for the Obligations or the Guaranteed Obligations to the Collateral Agent for the benefit of the Secured Parties.

 

Commitments” means each of the Initial Term Loan Commitment, the Tranche 2 Term Loan Commitment, and, as applicable, the Delayed Draw Term Loan Commitments.

 

Company Data and Data Sets” is defined in Section 5.17(m).

 

Company Financial Advisor” means PJT Partners, Inc., or such other financial advisor acceptable to the Administrative Agent and the Requisite Lenders in their sole and reasonable discretion.

 

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Company Retained Net Cash Proceeds” has the meaning assigned to such term in the Second Restatement.

 

Compliance Certificate” means a certificate in the form attached hereto as Exhibit C.

 

Conduct of Business Provisions” is defined in Section 6.14.

 

Conforming Changes” means, with respect to either the use or administration of Term SOFR or the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate”, the definition of “Business Day”, the definition of “U.S. Government Securities Business Day”, the definition of “Interest Period” or any similar or analogous definition (or the addition of a concept of “interest period”), timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of Section 2.02(f) and other technical, administrative or operational matters) that the Administrative Agent decides may be appropriate to reflect the adoption and implementation of any such rate or to permit the use and administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of any such rate exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary or desirable in connection with the administration of this Agreement and the other Loan Documents).

 

Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.

 

Consolidated Current Assets” means, as at any date of determination, the total assets of Holdings and its Subsidiaries on a consolidated basis that may properly be classified as current assets in conformity with GAAP, excluding cash and Cash Equivalents.

 

Consolidated Current Liabilities” means, as at any date of determination, the total liabilities of Holdings and its Subsidiaries on a consolidated basis that may properly be classified as current liabilities in conformity with GAAP, excluding the current portion of long term debt.

 

Consolidated Excess Cash Flow” means, for any period, an amount (if positive) determined for Holdings and its Subsidiaries on a consolidated basis equal to: (a) the sum, without duplication, of the amounts for such period of (i) EBITDA, plus (ii) interest income, plus (iii) other non-ordinary course income (excluding any gains or losses attributable to the Asset Dispositions and Transfers), plus (iv) the Consolidated Working Capital Adjustment, minus (b) the sum, without duplication, of the amounts for such period of (i) voluntary and scheduled repayments of Consolidated Total Debt (excluding repayments of revolving loans except to the extent the related revolving commitments are permanently reduced in connection with such repayments), plus (ii) Capital Expenditures of Holdings and its Subsidiaries (net of any proceeds of (x) Net Cash Proceeds from Asset Dispositions to the extent reinvested in accordance with Section 2.01(e), and (y) any proceeds of related financings with respect to such expenditures), plus (iii) Consolidated Interest Expense, plus (iv) provisions for current taxes based on income of Holdings and its Subsidiaries and payable in cash with respect to such period, plus (v) to the extent permitted and added back pursuant to clause (e) of the definition of EBITDA, the amount of fees or expenses paid in respect to the transactions described in clause (e) of the definition of EBITDA during such period.

 

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Consolidated Interest Expense” means, for any period, total interest expense (including that portion attributable to Capitalized Leases in accordance with GAAP and capitalized interest) of Holdings and its Subsidiaries on a consolidated basis with respect to all outstanding Consolidated Total Debt, including all commissions, discounts and other fees and charges owed with respect to letters of credit and net costs under Hedging Contracts, including any amounts referred to in Section 2.02(b).

 

Consolidated Total Debt” means, as at any date of determination, the aggregate stated balance sheet amount of all Indebtedness of Holdings and its Subsidiaries determined on a consolidated basis in accordance with GAAP.

 

Consolidated Working Capital” means, as at any date of determination, the excess or deficiency of Consolidated Current Assets over Consolidated Current Liabilities.

 

Consolidated Working Capital Adjustment” means, for any period of determination on a consolidated basis, the amount (which may be a negative number) by which Consolidated Working Capital as of the beginning of such period exceeds (or is less than) Consolidated Working Capital as of the end of such period.

 

Contingent Obligation” means, with respect to any Person, any obligation of such Person guaranteeing or intending to guarantee any Indebtedness, leases, dividends or other obligations (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, (a) the direct or indirect guaranty, endorsement (other than for collection or deposit in the ordinary course of business), co-making, discounting with recourse or sale with recourse by such Person of the obligation of a primary obligor, (b) the obligation to make take-or-pay or similar payments, if required, regardless of nonperformance by any other party or parties to an agreement, (c) any obligation of such Person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (A) for the purchase or payment of any such primary obligation or (B) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase property, assets, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the holder of such primary obligation against loss in respect thereof; provided, however, that the term “Contingent Obligation” shall not include any product warranties extended in the ordinary course of business. The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation with respect to which such Contingent Obligation is made (or, if less, the maximum amount of such primary obligation for which such Person may be liable pursuant to the terms of the instrument evidencing such Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability with respect thereto (assuming such Person is required to perform thereunder), as determined by such Person in good faith.

 

Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.

 

Contributing Guarantors” is defined in Section 9.02.

 

Control Agreement” means, with respect to any Deposit Account, any securities account, commodity account, securities entitlement or commodity contract, an agreement, in form and substance reasonably satisfactory to Collateral Agent, among Collateral Agent, the financial institution or other person at which such account is maintained or with which such entitlement or contract is carried and the Loan Party maintaining such account, effective to grant “control” (as defined under the applicable UCC) over such account to the Collateral Agent (including, where consistent with market practice in the relevant jurisdiction, obtaining an acknowledgement of such notice in respect of accounts subject to the Collateral Agent’s Liens where consistent with market practice in the relevant jurisdiction); it being understood that unless specifically specified in this Agreement or any Loan Document, any reference to a Control Agreement shall mean a Control Agreement subject to springing dominion pursuant to which the applicable Loan Party shall maintain control unless and until a notice of sole control has been given by Collateral Agent to the financial institution or other person at which such account is maintained or with which such entitlement or contract is carried.

 

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Controlled Account” means each Deposit Account, Securities Account, commodities account, securities entitlement or commodity contract that is (x) subject to a Control Agreement for the benefit of the Secured Parties, in accordance with the terms of this Agreement and of the applicable Security Documents or (y) which is otherwise subject to the sole dominion and control of the Collateral Agent pursuant to Section 6.15 hereof, for the benefit of the Secured Parties, in accordance with the terms of the applicable Collateral Documents, or subject to an equivalent arrangement required for perfection under English law or where applicable other applicable local law in the Relevant Jurisdictions and reasonably acceptable to the Collateral Agent.

 

Conversion/Continuation Date” means the effective date of a continuation or conversion, as the case may be, as set forth in the applicable Conversion/Continuation Notice.

 

Conversion/Continuation Notice” means a Conversion/Continuation Notice substantially in the form of Exhibit A-2.

 

Convertible Note” means each Senior Secured Convertible Note issued by Holdings pursuant to the Note Purchase Agreement, in each case, as the same may be amended, restated, amended and restated, modified or supplemented from time to time in accordance with the terms of this Agreement, the Note Purchase Agreement, and the Pari Passu Intercreditor Agreement.

 

Copyrights” means all of the following: (a) all copyright rights in any work subject to the copyright laws of the United States or any other country, whether as author, assignee, transferee or otherwise (including all copyrights in software), (b) all registrations and applications for registration of copyright in the United States or any other country, including registrations, renewals and pending applications for registration, (c) all income, royalties, damages and other payments now or hereafter due or payable under and with respect thereto, including payments under all licenses entered into in connection therewith and damages and payments for past or future infringements or other violations, and (d) the right to sue for past, present and future infringement or other violation thereof.

 

Cost Savings Plan” has the meaning assigned to such term in the Second Restatement.

 

Counterpart Agreement” means a Counterpart Agreement substantially in the form of Exhibit K delivered by a Loan Party pursuant to Section 6.12(b).

 

Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).

 

Covered Party” is defined in Section 13.25(b).

 

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Credit Date” means the date of a Credit Extension.

 

Credit Extension” means the making of a Loan.

 

Critical Technology” is defined in Section 5.32.

 

Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate (which will include a lookback) being established by the Administrative Agent in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for syndicated business loans; provided, that if the Administrative Agent decides that any such convention is not administratively feasible for the Administrative Agent, then the Administrative Agent may establish another convention in its reasonable discretion.

 

Declined Proceeds” is defined in Section 2.01(e)(iv).

 

Declining Holder” is defined in Section 2.01(e)(iv).

 

Declining Lender” is defined in Section 2.01(e)(iii).

 

De Minimis Accounts” is defined in the definition of “Collateral and Guarantee Requirement.”

 

De-SPAC Transaction” has the meaning assigned to such term in the Merger Consent.

 

Debtor Relief Law” means (i) the Bankruptcy Code of the United States, and (ii) all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, administration, compulsory winding up, management winding up, moratorium, rearrangement, receivership, insolvency, reorganization, rehabilitation or similar debtor relief Laws of the United States, any Relevant Jurisdiction and/or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.

 

Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, the making of a determination or any combination of the foregoing, would become an Event of Default.

 

Default Period” means, with respect to any Defaulting Lender, the period commencing on the date it became a Defaulting Lender and ending on the earliest of the following dates: (a) the date on which all Term Loan Commitments are cancelled or terminated and/or the Obligations are declared or become immediately due and payable, and (b) the date on which the Borrower and Administrative Agent determine such Lender is no longer a Defaulting Lender under Section 2.08(b).

 

Default Rate” means SOFR or the Base Rate, as applicable, plus the Applicable Default Interest Rate.

 

Default Rights” is defined in, and shall be interpreted in accordance with, 12 C.F.R. § 252.81, 47.2 or 382.1, as applicable.

 

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Defaulting Lender” means, subject to Section 2.08(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two (2) Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s determination that one (1) or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, or any other Lender any other amount required to be paid by it hereunder within two (2) Business Days of the date when due, (b) has notified the Borrower, the Administrative Agent in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within five (5) Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Laws, or (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one (1) or more of clauses (a) through (e) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.08(b)) upon delivery of written notice of such determination to the Borrower and each Lender.

 

Delayed Draw Funding Conditions” means, on or prior to funding of the applicable Delayed Draw Term Loans, the Administrative Agent shall have received a Notice of Borrowing in form and substance satisfactory to the Administrative Agent and the Lenders funding such Delayed Draw Term Loans in their sole discretion, including evidence and attaching and certifying that:

 

(i) no Default or Event of Default then exists or would result after giving pro forma effect to such Borrowing of Delayed Draw Term Loans,

 

(ii) each of the Performance Milestones required to be satisfied by each applicable Performance Due Date has been satisfied (along with supporting evidence with respect thereto, in each case, in form and substance satisfactory to the Administrative Agent),

 

(iii) the then available Delayed Draw Term Loan Commitment after giving effect to such Loans is greater than or equal to $0,

 

(iv) the use of proceeds for such Loans and the use of such proceeds complies with the most recent Cash Flow Forecast (as defined in the Performance Milestones attached hereto as Appendix C) approved by the Administrative Agent, and

 

(v) such other evidence, requirements or information requested by the Administrative Agent or the Lenders funding such Delayed Draw Term Loans in connection with such proposed Borrowing.

 

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Delayed Draw Outside Date” means August 30, 2023, or such later date as agreed in writing by the Lenders holding Delayed Draw Term Loan Commitments in their sole discretion.

 

Delayed Draw Term Loan” means a loan made by a Lender pursuant to Section 2.01(a)(ii)(A).

 

Delayed Draw Term Loan Commitment” means the commitment of a Lender to make or otherwise fund a Delayed Draw Term Loan Commitment, and “Delayed Draw Term Loan Commitments” means such commitments of all Lenders in the aggregate. The amount of each Lender’s Delayed Draw Term Loan Commitment, if any, is set forth on Appendix A or in the applicable Assignment Agreement, subject to any adjustment or reduction pursuant to the terms and conditions hereof. The aggregate amount of the Delayed Draw Term Loan Commitments as of the Second Restatement Effective Date and prior to giving effect to any Borrowing on such date is Twenty-Five Million Dollars ($25,000,000.00).

 

Delayed Draw Term Loan Commitment Termination Date” means, for any Delayed Draw Term Loan Commitment, the last day of the applicable Borrowing Period for such Delayed Draw Term Loan Commitment.

 

Delayed Draw Term Loan Exposure” means, with respect to any Lender as of any date of determination, the sum of that Lender’s unused Delayed Draw Term Loan Commitment and the aggregate outstanding principal amount of the Delayed Draw Term Loans of that Lender.

 

Delayed Draw Term Loan Lender” means each Lender holding a Delayed Draw Term Loan Commitment or a Delayed Draw Term Loan.

 

Dense Air Group” means Dense Air Holdco, Dense Air Limited and their respective subsidiaries from time to time.

 

Dense Air Holdco” means, following the Dense Air Conversion Date, any entity that holds, either directly or indirectly whether now or in the future not less than ninety-five percent (95%) of the outstanding issued share capital in Dense Air Limited from time to time.

 

Dense Air Limited” means Dense Air Limited, a company organized under the laws of England and Wales.

 

Deposit Account” means a demand, time, savings, passbook or like account with a bank, savings and loan association, credit union or like organization, other than an account evidenced by a negotiable certificate of deposit.

 

Designated Jurisdiction” is defined in Section 5.22(b)(v).

 

Direct Competitor” is defined in the definition of “Eligible Assignee.”

 

Disclosure Schedule” means each of the Disclosure Schedules attached hereto.

 

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Disqualified Equity Interests” means Equity Interests that by their terms (or by the terms of any security into which they are convertible or for which they are exchangeable) (a) require the payment of any cash dividends, (b) mature or are mandatorily redeemable or subject to mandatory repurchase or redemption or repurchase at the option of the holders thereof, in whole or in part and whether upon the occurrence of any event, pursuant to a sinking fund obligation, on a fixed date or otherwise, prior to the date that is three hundred and sixty-five (365) days after the Maturity Date at such time of any then outstanding Loan or (c) are convertible or exchangeable, automatically or at the option of any holder thereof, into any Indebtedness other than Permitted Indebtedness; provided that if such Equity Interests are issued pursuant to a plan for the benefit of employees of Holdings or any Subsidiary or by any such plan to such employees, such Equity Interests shall not constitute Disqualified Equity Interests solely because they may be required to be repurchased by such entity in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, death or disability.

 

Distributable Income” means, at any time, the maximum amount of income distributable by a Person at such time under the laws of such Persons jurisdiction, as certified by independent certified public accountants of recognized international standing pursuant to Section 6.02(a).

 

Distribution” is defined in Section 6.22(a).

 

Divestiture Transaction” means the Borrower’s sale of all of the issued and outstanding shares of common stock of Mimosa to Radisys Corporation, an Oregon corporation, for an aggregate purchase price of approximately $60,000,000 in cash (subject to customary adjustments as set forth in the Mimosa Purchase Agreement) on the terms and subject to the conditions set forth in the Mimosa Purchase Agreement as in effect on March 8, 2023 and as may be amended with the prior written consent of the Administrative Agent in its sole discretion (which may be by email); provided that such transaction shall only constitute the “Divestiture Transaction” to the extent that (x) it is consummated in accordance with the requirements of Sections 2.1 and 2.2 of the Second Restatement and (y) the Consent Conditions (as defined in the Second Restatement) have been satisfied.

 

Dollars,” “dollars” or use of the “$” sign means only lawful money of the United States and not any other currency, regardless of whether that currency uses the “$” sign to denote its currency or may be readily converted into lawful money of the United States.

 

Domestic Subsidiary” means a Subsidiary of Holdings organized under the laws of the United States, any state, territory or province thereof; provided that no Person that is a direct or indirect Subsidiary of a Foreign Subsidiary shall be a Domestic Subsidiary.

 

EBITDA” means with respect to such Person and its consolidated Subsidiaries for any applicable period, on a consolidated basis and as determined in accordance with GAAP, (a) the gross income of such Person and its consolidated Subsidiaries for such period, minus (b) operating expenses actually paid in cash in such period, plus (c) to the extent subtracted as cash operating expenses pursuant to immediately preceding clause (b), without duplication, non-recurring costs, fees and expenses in connection with (i) the preparation and consummation of the documents related to the Divestiture Transaction and the consummation of the transactions contemplated thereby, (ii) the preparation and consummation of the Loan Documents and the consummation of the transactions contemplated thereby, and (iii) the preparation and consummation of the Note Purchase Documents and the consummation of the transactions contemplated thereby (including the issuance and reissuance of the Convertible Notes), including in each case in this clause (c) (to the extent actually paid in cash in such period) legal fees and expenses, financing fees and expenses, deal fees and expenses, and costs, fees and expenses payable in connection with SEC reporting. Unless otherwise noted herein, references to EBITDA, shall be references to the EBITDA of Holdings and its consolidated Subsidiaries. For avoidance of doubt and without duplication, to the extent not previously included in the deemed numbers set forth in the immediately preceding sentence, addbacks permitted under clause (e) above shall be permitted for the purposes of calculating historical deemed EBITDA of Holdings and its Subsidiaries on a consolidated basis.

 

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Eligible Assignee” means any Person (other than a natural person or a trust of which any natural person is the beneficiary) that is (i) a Lender, an Affiliate of a Lender or a Related Fund (any two (2) or more Related Funds being treated as a single Eligible Assignee for all purposes hereof) and (ii) a commercial bank, insurance company, investment or mutual fund or other entity that is an “accredited investor” (as defined in Regulation D under the Securities Act) and which extends credit or buys loans in the ordinary course of business; provided, no Direct Competitor (unless approved by Borrower and the Administrative Agent, acting in consultation with the Requisite Lenders) and no Loan Party or any Affiliate thereof shall be an Eligible Assignee; provided further, no consent of the Borrower shall be required if an Event of Default has occurred. “Direct Competitor” as used herein shall mean an operating business of a 5G wireless telecommunications provider.

 

End of Term Fee” means an end of term fee in an amount equal to the sum of (a) two and one half percent (2.5%) of the principal balance of the Loans (other than any Delayed Draw Term Loans) and any other Obligations advanced or otherwise owed hereunder (excluding Obligations arising under the Note Purchase Documents), including, without limitation, any fees, the capitalized interest, original issue discount and any Applicable Prepayment Premiums in respect thereof (but excluding any of the foregoing owed in connection with the Delayed Draw Term Loans) and (b) ten percent (10%) of the principal balance of all Delayed Draw Term Loans and any other Obligations advanced or otherwise owed hereunder in respect of such Delayed Draw Term Loans, including, without limitation, the capitalized interest, original issue discount and any Applicable Prepayment Premiums in respect thereof (but excluding any of the foregoing owed in connection with the Loans and other Obligations described in clause (a)).

 

End of Term Fee Event” is defined in Section 2.01(f)(i).

 

Environmental Claim” means any investigation, notice, notice of violation, claim, action, suit, proceeding, demand, abatement order or other order or directive (conditional or otherwise), by any Governmental Authority or any other Person, arising (a) pursuant to or in connection with any actual or alleged violation of any applicable Environmental Law; (b) in connection with any Hazardous Material or any actual or alleged Hazardous Materials Activity; or (c) in connection with any actual or alleged damage, injury, threat or harm to health, safety, natural resources or the environment.

 

Environmental Laws” means any and all current or future Laws, or any other requirements of Governmental Authorities relating to (a) environmental matters, or (b) occupational safety and health, industrial hygiene, land use or the protection of human, plant or animal health or welfare, in any manner applicable to Holdings or any of its Subsidiaries or any Facility owned, leased or operated by Holdings or any of its Subsidiaries.

 

Environmental Liability” means all liabilities (contingent or otherwise, known or unknown), monetary obligations, losses (including monies paid in settlement), damages, natural resource damages, costs and expenses (including all reasonable fees, costs, client charges and expenses of counsel, experts and consultants), fines, penalties, sanctions and interest arising directly or indirectly as a result of or based upon (a) any Environmental Claim; (b) any actual, alleged or threatened non-compliance with any applicable Environmental Law or Environmental Permit; (c) any actual, alleged or threatened Release of or exposure to Hazardous Materials; (d) any Remedial Action; or (e) any contract, agreement, or other arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

 

Environmental Permit” means any permit, license, authorization, approval, registration or entitlement required by or issued pursuant to any Environmental Law or by any Governmental Authority pursuant to Environmental Law.

 

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Equipment” means all present and future “equipment” as defined in the Code (or equivalent in the equivalent applicable Law of a relevant non-U.S. jurisdiction) in effect on the Closing Date with such additions to such term as may hereafter be made, and includes without limitation all machinery, fixtures, goods, vehicles (including motor vehicles and trailers), and any interest in any of the foregoing.

 

Equity Interests” means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such securities convertible into or exchangeable for shares of capital stock (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination.

 

ERISA” means the Employee Retirement Income Security Act of 1974, and its regulations.

 

ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with Holdings or any of its Subsidiaries within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).

 

ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by a Loan Party, either Borrower or any other Loan Party or ERISA Affiliate thereof from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by any Loan Party or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Plan amendment as a termination under Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; (f) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Loan Party or any ERISA Affiliate; (g) or any Foreign Plan Event.

 

Event of Default” is defined in Section 8.01.

 

Exchange Act” is the Securities Exchange Act of 1934, as amended.

 

Excluded Account” means any segregated deposit account or securities account specifically and exclusively used to hold payroll and payroll taxes and other employee benefit payments, Taxes required to be collected, remitted or withheld (including sales taxes) and other funds which any Loan Party holds in trust or as an escrow or fiduciary for another third party which is not a Loan Party or its Subsidiary (including for the purposes of paying taxes in the ordinary course of business).

 

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Excluded Assets” means the following assets and property of any Loan Party (i) any of such Loan Party’s right, title or interest in any license, contract or agreement to which such Loan Party is a party or any of its right, title or interest thereunder to the extent, but only to the extent, that such a grant would, under the express terms of such license, contract or agreement result in the termination, a material breach of the terms of, or constitute a material default under, such license, contract or agreement (other than to the extent that any such term (A) has been waived or (B) would be rendered ineffective pursuant to Sections 9-406, 9-408, 9-409 of the UCC or other applicable provisions of the UCC (or equivalent) of any relevant jurisdiction or any other applicable law (including the applicable Debtor Relief Laws) or principles of equity); provided, that (x) immediately upon the ineffectiveness, lapse, termination or waiver of any such provision, the Collateral shall include, and such Loan Party shall be deemed to have granted a security interest in, all such right, title and interest as if such provision had never been in effect and (y) the foregoing exclusion shall in no way be construed so as to limit, impair or otherwise affect the Collateral Agent’s unconditional continuing security interest in and liens upon any rights or interests of a Loan Party in or to the proceeds of, or any monies due or to become due under, any such license, contract or agreement, provided that such security interest or lien would not itself result in the termination, material breach of the terms of a material default under such license, contract or agreement (other than to the extent that any such term (A) has been waived or (B) would be rendered ineffective pursuant to Sections 9-406, 9-408, 9-409 of the UCC or other applicable provisions of the UCC (or equivalent) of any relevant jurisdiction or any other applicable law (including the applicable Debtor Relief Laws) or principles of equity), (ii) any intent-to-use United States trademark applications for which an amendment to allege use or statement of use has not been filed under 15 U.S.C. § 1051(c) or 15 U.S.C. § 1051(d), respectively, or if filed, has not been deemed in conformance with 15 U.S.C. § 1051(a) or examined and accepted, respectively, by the United States Patent and Trademark Office, provided that upon such filing and acceptance, such intent-to-use applications shall be included in the definition of Collateral, (iii) any Excluded Accounts if and for so long as the accounts described therein as used solely for the purposes described in the definition of “Excluded Accounts”, (iv) Equity Interests issued by Dense Air Limited, Dense Air Holdco, or any of their subsidiaries and held by any Loan Party or any of their Subsidiaries, and (v) such other assets and property as to which the Collateral Agent (in its sole discretion) determines that the cost of obtaining or perfecting a security interest therein is excessive in relation to the benefits afforded to the Secured Parties by the security to be afforded thereby; provided, however, that (x) the exclusions described in clauses (i) through (v) above shall in no way be construed as to limit, impair or otherwise affect the Collateral Agent’s unconditional continuing security interest in and liens upon any rights or interest of the Loan Parties in or to the proceeds of, or any monies due or to become due under, any such leases, contracts, agreements, licenses, permits, equipment, Equity Interests, accounts or other assets and (y) immediately upon the effectiveness, lapse termination or waiver of any such restriction, provision or agreement, references to the Collateral shall include and the Loan Parties shall be deemed to have granted a security interest with respect to such leases, contracts, agreements, licenses, permits, equipment, Equity Interests, accounts and other assets as if such provision or restriction or agreement had never been in effect.

 

Excluded Taxes” means any of the following Taxes imposed on or with respect to a Lender or required to be withheld or deducted from a payment to such Lender, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of a Lender being organized under the laws of, or having its principal office located in, the jurisdiction imposing such Tax (or any political subdivision thereof), or (ii) that are Other Connection Taxes; (b) U.S. federal withholding Taxes imposed on amounts payable to or for the account of a Lender with respect to an applicable interest in a Loan or Term Loan Commitment pursuant to a law in effect on the date on which such Lender designates a new lending office or acquires its interests or rights under this Agreement, except, in each case, to the extent that, (x) pursuant to Section 2.03, amounts with respect to such Taxes were payable either to such Lender immediately before it changed its lending office or to such Lender’s assignor immediately before such Lender became a party hereto or (y) such assignment of a Lender’s interest under this Agreement was triggered by any Loan Party’s request; (c) Taxes attributable to a Lender’s failure to comply with Section 2.03(e); and (d) any U.S. federal withholding Taxes imposed under FATCA as a result of a Lender not being in compliance with FATCA or such Lender failing to provide the Borrower with all forms reasonably requested by the Borrower establishing an exemption from U.S. federal withholding Taxes imposed under FATCA. Any Israeli VAT required to be paid with respect to a payment made pursuant to this Agreement or any Loan Document shall not be included in the definition of “Excluded Taxes”.

 

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Executive Order” is defined in Section 5.22(b)(i).

 

Existing Asset Security Jurisdictions” is defined in Section 6.12(c)(i).

 

Existing Credit Agreement” is defined in the recitals.

 

Existing Indebtedness” means Indebtedness and other obligations outstanding under the Original Credit Agreement.

 

Existing Security Agreement” means the Security Agreement dated December 30, 2020 among the Borrower, the Guarantors listed on the signature pages to the Reaffirmation and Omnibus Amendment Agreement as Grantors, and the Collateral Agent, as amended and restated by that certain Amended and Restated Security Agreement dated as of the First Restatement Effective Date and as the same may be further amended, restated, amended and restated, supplemented, or otherwise modified in accordance with the terms hereof and of the Pari Passu Intercreditor Agreement.

 

Export Control Regulations” shall mean the Export Administration Act, the Arms Export Control Act, the Export Administration Regulations and the International Traffic in Arms Regulations, the Export Control Act 2002 (United Kingdom) each as amended from time to time, and any similar law applicable to the operations or activities of Holdings or any of its Subsidiaries in any jurisdiction.

 

Facility” means any real property (including all buildings, fixtures or other improvements located thereon) now, hereafter or heretofore owned, leased, operated or used by Holdings or any of its Subsidiaries or any of their respective predecessors.

 

Fair Share” is defined in Section 9.02

 

Fair Share Contribution Amount” is defined in Section 9.02.

 

FATCA” shall mean Sections 1471 through 1474 of the Code, as of the Closing Date (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, and any agreements entered into pursuant to Section 1471(b)(1) of the Code.

 

FCC” means the Federal Communications Commission or any Governmental Authority substituted therefor.

 

FCPA” shall mean the Foreign Corrupt Practices Act of 1977 (as amended from time to time).

 

Federal Funds Effective Rate” means for any day, the rate per annum (expressed, as a decimal, rounded upwards, if necessary, to the next higher one one-hundredth of one percent (1/100 of 1%)) equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided, if such day is not a Business Day, the Federal Funds Effective Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day.

 

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Federal Reserve Board” means the Board of Governors of the Federal Reserve System of the United States.

 

Fee Letter” means (x) the letter agreement dated as of the Closing Date between the Borrower and Administrative Agent and (y) each other letter agreement designated by the Borrower and the Administrative Agent as a “Fee Letter” from time to time.

 

FIG” is defined in Section 13.08.

 

Financial Plan” is defined in Section 6.02(e).

 

Financial Statement Delivery Date” means the earlier of the date on which the Loan Parties deliver or are required to deliver their financial statements to the Administrative Agent and the Lenders under Section 6.02(a), Section 6.02(b) or Section 6.02(c), as the case may be.

 

First Priority” means, with respect to any Lien purported to be created in any Collateral pursuant to any Collateral Document, such Lien is prior to all other Liens on such Collateral, subject to any Permitted Lien which is prior as a matter of law or agreement.

 

First Restatement Effective Date” means August 13, 2021.

 

Floor” means the benchmark rate floor, if any, provided in this Agreement initially (as of the execution of this Agreement, the modification, amendment or renewal of this Agreement or otherwise) with respect to any SOFR Loan, which floor shall in no event be less than zero.

 

Foreign Lender” shall mean a Lender that is not a U.S. Person.

 

Foreign Plan” means (a) any employee pension benefit plan (within the meaning of Section 3(2) of ERISA, whether or not subject to ERISA) that is not subject to United States law, that is maintained or contributed to by any Loan Party or any of their Subsidiaries or any ERISA Affiliate and (b) any other material foreign pension in accordance to any other applicable Law and special arrangements, collective bargaining agreements and extension orders in any applicable jurisdiction that is maintained or contributed to by any Loan Party or any of their Subsidiaries or any ERISA Affiliate.

 

Foreign Plan Event” means (a) with respect to any Foreign Plan, (i) the failure to make or, if applicable, accrue in accordance with normal accounting practices, any employer or employee contributions or payments required by applicable Law or by the terms of such Foreign Plan, (ii) the failure to register or loss of good standing with applicable regulatory authorities of any such Foreign Plan required to be registered, or (iii) the failure of any Foreign Plan to comply with any material provisions of applicable law and regulations or with the material terms of such Foreign Plan, or (b) a final determination that any Loan Party is responsible for a deficit or funding shortfall in a multi-employer pension plan as that term is defined under applicable foreign pension and benefits standards statute or regulation or other Foreign Plan administered by an entity other than a Loan Party under a collective bargaining agreement, in each case to the extent material to Holdings and Subsidiaries, taken as a whole.

 

Foreign Subsidiary” means a Subsidiary that is not a Domestic Subsidiary.

 

Foreign Subsidiary Accession Requirements” is defined in Section 6.12(c)(i).

 

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Fortress” is defined in the preamble.

 

Fortress Member” means the Agent and its respective Permitted Transferees (as defined in the IP Hold-Co Operating Agreement).

 

Fourth Amendment” means that certain Fourth Amendment, Limited Waiver and Consent under Credit Agreement and Other Loan Documents, dated as of November 14, 2022, among the Borrower and the other Loan Parties party thereto, the Lenders party thereto and the Agent.

 

Free Cash Flow” means, for any Person for any period, EBITDA plus cash interest income of such Person for such period, less income taxes, Capital Expenditures and Investments (to the extent made in compliance with this Agreement), Scheduled Debt Service (if any) and variations in working capital made in the ordinary course of business, with respect to such period.

 

Funded Debt” means, with respect to any specified Person, any Indebtedness of such Person (excluding accrued expenses and trade payables), whether or not contingent;

 

(1) in respect of borrowed money or advances; or

 

(2) evidenced by loan agreements, bonds, notes or debentures or similar instruments or letters of credit (solely to the extent such letters of credit or other similar instruments have been drawn and remain unreimbursed) or, without duplication, reimbursement agreements in respect thereof.

 

Funding Guarantor” is defined in Section 9.02.

 

GAAP” means (a) in the case of Holdings, the Borrower, IP Hold-Co and the Domestic Subsidiaries, United States generally accepted accounting principles; and (b) in the case of any Loan Party which is a Foreign Subsidiary, the generally accepted accounting principles applying to it in the country of its incorporation or in a jurisdiction agreed to by the Administrative Agent or, if adopted by the relevant Loan Party, the international accounting standards within the meaning of IAS Regulation 1606/2002 (“IFRS”), in each case, to the extent applicable to the relevant financial statements and applied on a consistent basis.

 

Golden Wayford Note” means that certain Convertible Promissory Note, dated as of August 6, 2015 (as the same has been and may be amended, restated, amended and restated, supplemented or otherwise modified from time to time), by and between Borrower and Golden Wayford Limited.

 

Golden Wayford Subordination Agreement” means that certain Subordination Agreement dated August 6, 2015 and executed by Golden Wayford Limited with respect to the Borrower’s obligations under the Golden Wayford Note, as the same has been amended, amended and restated, restated, supplemented or otherwise modified from time to time pursuant to which Golden Wayford agreed to subordinate the Indebtedness evidenced by the Golden Wayford Note to the Obligations, the Agent (on its own behalf and on behalf of the Lenders holding such Loans and Obligations) being the beneficiary of such agreement as the successor in interest to PWB (the prior agent on behalf of the lenders and other secured parties and the successor by merger to Square 1 Bank).

 

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Governmental Authority” means any nation or government, any federal, supranational, state or other political subdivision of any of the foregoing, any ministry, agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative functions of or pertaining to government, any securities exchange and any self-regulatory organization.

 

Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the “primary obligor”) in any manner, whether directly or indirectly and including any obligation, direct or indirect, of the guarantor (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued in support of such Indebtedness or obligation; provided that the term “Guarantee” shall not include endorsements for collection or deposit in the ordinary course of business. The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee is made or, if not so stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith. The term “Guarantee” used as a verb has a corresponding meaning.

 

Guaranteed Obligations” is defined in Section 9.01.

 

Guarantor” means Holdings and each Subsidiary of Holdings (other than the Borrower) listed on Schedule 1.01(b) hereto and each other Subsidiary of Holdings (other than the Borrower) organized or formed in an Initial Asset Security Jurisdiction and each other Subsidiary of Holdings that guarantees the Obligations (other than members of the Dense Air Group, Subsidiaries of Holdings organized in India or, for so long as such Subsidiaries remain Immaterial Foreign Subsidiaries, Immaterial Foreign Subsidiaries organized in non-Initial Asset Security Jurisdictions unless required to become Loan Parties pursuant to Section 6.12) and each other Person, if any, that from time to time becomes a Guarantor by executing and delivering a Guaranty, or becomes a party to this Agreement as Guarantor by joinder or otherwise.

 

Guaranty” means the guaranty of each Guarantor set forth in Article IX.

 

Harmful Code” is defined in Section 5.17(g).

 

Hazardous Materials” means any chemical, material or substance, exposure to which is prohibited, limited or regulated by any applicable Governmental Authority or which may or could pose a hazard to the health and safety of the owners, occupants or any Persons in the vicinity of any Facility or to the indoor or outdoor environment.

 

Hazardous Materials Activity” means any past, current, proposed or threatened activity, event or occurrence involving any Hazardous Materials, including the use, manufacture, possession, storage, holding, presence, existence, location, Release, threatened Release, discharge, placement, generation, transportation, processing, construction, treatment, abatement, removal, remediation, disposal, disposition or handling of any Hazardous Materials, and any corrective action or response action with respect to any of the foregoing.

 

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Hedging Contract” means any rate or currency swap, cap or collar agreement or any other agreement designed to hedge risk with respect to interest rate or currency fluctuations, whether or not pursuant to a master agreement.

 

Holdings” is defined in the preamble.

 

IFRS” means International Financial Reporting Standards.

 

Immaterial Foreign Subsidiary” means any Foreign Subsidiary of the Loan Parties that (a) does not own any Patents and has neither (i) revenues (excluding intercompany transactions and balances) for the most recently completed twelve (12) month period of more than the lesser of (x) Five Million Dollars ($5,000,000) (or its equivalent) and (y) three percent (3%) of total revenues of Holdings and its consolidated Subsidiaries for the last twelve months (as measured as of the last day of the most recently completed fiscal period for which financial statements have been delivered pursuant Section 6.02(a), Section 6.02(b), or Section 6.02(c), as applicable), nor (ii) assets or Investments having fair market value (as of the last day of the most recently completed twelve-month period) of more than Two Million Five Hundred Thousand Dollars ($2,500,000) (or its equivalent) on average as of the last day of each fiscal period ending, during such period, in each case, as determined based on the most recently completed fiscal period for which financial statements have been delivered pursuant to Section 6.02(a), Section 6.02(b), or Section 6.02(c), as applicable, for the preceding twelve (12) month period then ended (but giving pro forma effect to any material Indebtedness, Investment, Transfer or Asset Dispositions during such period).

 

Immaterial Foreign Subsidiary Threshold” means for all Subsidiaries of Holdings that are not Loan Parties and Asset Security Providers (on a combined basis with all of the non-Loan Party Subsidiaries taken as a whole) (i) revenues (excluding intercompany transactions and balances) for the most recently completed twelve (12) month period of no more than the lesser of (x) Ten Million Dollars ($10,000,000) (or its equivalent) and (y) six percent (6%) of the total revenues of Holdings and its consolidated Subsidiaries for the last twelve months (as measured as of the last day of the most recently completed fiscal period for which financial statements have been delivered pursuant Section 6.02(a), Section 6.02(b), or Section 6.02(c), as applicable,), and (ii) assets or Investments (as of the last day of the most recently completed twelve-month period) of no more than Five Million Dollars ($5,000,000) (or its equivalent) on average as of the last day of each fiscal period ending during such period, in each case, as determined based on the most recently completed fiscal period for which financial statements have been delivered pursuant to Section 6.02(a), Section 6.02(b), or Section 6.02(c), as applicable, for the preceding twelve (12) month period then ended (but giving pro forma effect to any material Investment, Transfer or Asset Dispositions during such period).

 

Increased-Cost Lender” is defined in Section 2.09(b).

 

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Indebtedness” means, with respect to any Person, without duplication, (a) all indebtedness of such Person for borrowed money; (b) all obligations of such Person for the deferred purchase price of property or services (other than trade payables or other account payables incurred in the ordinary course of such Person’s business and not overdue for more than ninety (90) days); (c) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments or upon which interest payments are customarily made (excluding surety bonds, performance bonds, bid bonds and similar obligations); (d) all reimbursement, payment or other obligations and liabilities of such Person created or arising under any conditional sales or other title retention agreement with respect to property used and/or acquired by such Person, even though the rights and remedies of the lessor, seller and/or lender thereunder may be limited to repossession or sale of such property; (e) all Capitalized Lease Obligations of such Person; (f) all obligations and liabilities, contingent or otherwise, of such Person, in respect of letters of credit, acceptances and similar facilities (other than to the extent undrawn or cash collateralized); (g) all obligations and liabilities, calculated on a basis satisfactory to the Administrative Agent and in accordance with accepted practice, of such Person under Hedging Contracts; (h) all monetary obligations under any receivables factoring, receivable sales or similar transactions and all monetary obligations under any synthetic lease, tax ownership/operating lease, off-balance sheet financing or similar financing; (i) all surety bonds, performance bonds, bid bonds, appeal bonds, completion guarantees and similar obligations; (j) all Contingent Obligations; (k) all Disqualified Equity Interests; and (l) all obligations referred to in clauses (a) through (k) of this definition of another Person secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) a Lien upon property owned by such Person, even though such Person has not assumed or become liable for the payment of such Indebtedness. The Indebtedness of any Person shall include, without duplication, the Indebtedness of any partnership of or joint venture in which such Person is a general partner or a joint venturer to the extent such Person is liable therefor as a result of such Person’s ownership interest in such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor. The amount of Indebtedness of any Person for purposes of clause (l) above shall be deemed to be equal to the lesser of (i) the aggregate unpaid amount of such Indebtedness and (ii) the fair market value of the property encumbered thereby as reasonably determined by such Person in good faith.

 

Indemnified Liabilities” means, collectively, any and all liabilities, obligations, losses, damages (including natural resource damages), penalties, claims (including Environmental Claims), costs (including the costs of any investigation, study, sampling, testing, abatement, cleanup, removal, remediation or other response action necessary to remove, remediate, clean up or abate any Hazardous Materials Activity), expenses and disbursements of any kind or nature whatsoever (including the reasonable fees and disbursements of counsel for Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened by any Person, whether or not any such Indemnitee shall be designated as a party or a potential party thereto, and any fees or expenses incurred by Indemnitees in enforcing this indemnity), whether direct, indirect or consequential and whether based on any federal, state or foreign laws, statutes, rules or regulations (including securities and commercial laws, statutes, rules or regulations and applicable Environmental Laws), on common law or equitable cause or on contract or otherwise, that may be imposed on, incurred by, or asserted against any such Indemnitee, in any manner relating to or arising out of (a) this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby (including each Lender’s agreement to make Credit Extensions or the use or intended use of the proceeds thereof, or any enforcement of any of the Loan Documents (including any sale of, collection from, or other realization upon any of the Collateral or the enforcement of the Guaranty)); (b) the statements contained in the commitment letter delivered by any Lender to Borrower with respect to the transactions contemplated by this Agreement or the other Loan Documents; (c) any Environmental Claim or any Hazardous Materials Activity relating to or arising from, directly or indirectly, any past or present activity, operation, land ownership, or practice of the Loan Parties or any of their Subsidiaries; or (d) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower or any other Loan Party, and regardless of whether any Indemnitee is a party thereto.

 

Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in clause (a) of this definition of “Indemnified Taxes”, Other Taxes.

 

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Indemnitee” is defined in Section 13.02(b).

 

Indemnitee Related Party” is defined in Section 10.07.

 

Information Declination Notice” is defined in Section 6.03.

 

Initial Asset Security Jurisdiction” means the United States, the United Kingdom, the State of Israel and Japan.

 

Initial Borrower” is defined in the preamble.

 

Initial Credit Agreement” is defined in the recitals.

 

Initial Origination Fee” is defined in Section 2.02(b)(i)(B).

 

Initial Term Loan” is defined in Section 2.01(a)(i)(A).

 

Initial Term Loan Commitment” means the commitment of a Lender to make or otherwise fund an Initial Term Loan. The amount of each Lender’s Initial Term Loan Commitment as of the Closing Date is set forth on Appendix A or in the applicable Assignment Agreement, subject to any adjustment or reduction pursuant to the terms and conditions hereof. The aggregate amount of the Initial Term Loan Commitments as of the Closing Date is as set forth on Appendix A. The Initial Term Loans were fully-advanced on the Closing Date.

 

Initial Term Loan Exposure” means, with respect to any Lender, as of any date of determination, the outstanding principal amount of the Initial Term Loans of such Lender.

 

Insolvency Proceeding” means any proceeding under any Debtor Relief Law.

 

Intellectual Property” means collectively, all rights, priorities and privileges relating to intellectual property, whether arising under United States, multinational or foreign laws or otherwise, including, without limitation, all Copyrights, Patents, Trademarks, Trade Secrets, Product Authorizations, Product Agreements, computer software, databases, data and documentation, know-how, inventions, manufacturing processes and techniques, research and development information data and other information included in or supporting Product Authorizations, other intellectual property or similar proprietary rights, copies and tangible embodiments of any of the foregoing (in whatever form or medium) and any and all improvements to any of the foregoing or rights or licenses to or from a third party in connection therewith.

 

Intercompany Subordination Agreement” means the Amended and Restated Intercompany Subordination Agreement dated as of the First Restatement Effective Date, by and among Holdings, the Borrower and certain Subsidiaries thereof, as the same may be amended, amended and restated, restated, supplemented or otherwise modified from time to time.

 

Intercreditor and Subordination Agreements” means (a) the Pari Passu Intercreditor Agreement, (b) the Subordination Agreements and (c) each other intercreditor agreement and/or subordination agreement in respect of Indebtedness of Holdings and its Subsidiaries entered into from time to time; provided that each such agreement is in form and substance satisfactory to the Administrative Agent, in each case, as such agreements may be amended, restated, amended and restated, supplemented or otherwise modified from time to time to the extent permitted in accordance with the terms hereof and/or, as applicable, the applicable intercreditor and/or subordination agreement as applicable.

 

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Interest Payment Date” means with respect to any Loan, (i) the last day of each calendar month ending after the Closing Date, and (ii) the Maturity Date of such Loan; provided if such date is not a Business Day, the applicable Interest Payment Date shall be the next succeeding Business Day.

 

Interest Period” means, in connection with any SOFR Loan, an interest period of one (1) month or three (3) months, or such shorter other period as consented to by Administrative Agent and the Requisite Lenders, as selected by Borrower in the applicable Conversion/Continuation Notice or Notice of Borrowing, (i) initially, commencing on the Closing Date or Conversion/Continuation Date thereof, as the case may be; and (ii) thereafter, commencing on the day on which the immediately preceding Interest Period expires; provided, (a) if an Interest Period would otherwise expire on a day that is not a Business Day, such Interest Period shall expire on the next succeeding Business Day unless no further Business Day occurs in such month, in which case such Interest Period shall expire on the immediately preceding Business Day; (b) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall, subject to clause (c), of this definition, end on the last Business Day of a calendar month; and (c) no Interest Period shall extend beyond the Maturity Date.

 

Interest Rate Agreement” means any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, interest rate hedging agreement or other similar agreement or arrangement, each of which is (i) for the purpose of hedging the interest rate exposure associated with Holdings and its Subsidiaries’ operations, (ii) approved by Administrative Agent, and (iii) not for speculative purposes.

 

Inventory” is all “inventory” as defined in the UCC in effect on the Closing Date with such additions to such term as may hereafter be made, and includes without limitation all merchandise, raw materials, parts, supplies, packing and shipping materials, work in process and finished products, including without limitation such inventory as is temporarily out of a Loan Party’s custody or possession or in transit and including any returned goods and any documents of title representing any of the above.

 

Investment” means (a) any beneficial ownership interest in any Person (including Equity Interests and other securities), (b) any investment by such Person in any other Person (including Affiliates) in the form of loans, guarantees, advances or other extensions of credit (excluding accounts receivable arising in the ordinary course of business), capital contributions or acquisitions of Indebtedness (including, any bonds, notes, debentures or other debt securities), Equity Interests, or all or substantially all of the assets of such other Person (or of any division or business line of such other Person), (c) the purchase or ownership of any futures contract or liability for the purchase or sale of currency or other commodities at a future date in the nature of a futures contract, or (d) any investment in any other items that are or would be classified as investments on a balance sheet of such Person prepared in accordance with GAAP. The amount of any Investment shall be the original cost of such Investment plus the cost of all additions thereto, without any adjustments for increases or decreases in value, or write-ups, write-downs or write-offs with respect to such Investment.

 

IP Hold-Co” means Airspan IP Holdco LLC, a Delaware limited liability company and a Subsidiary of Borrower which, as of the First Restatement Effective Date, has ninety nine and eight tenths percent (99.8%) of its Equity Interests owned by the Borrower and two-tenths percent (0.2%) owned by the Fortress Member and which is managed by (x) Borrower until the occurrence of a Triggering Event (as defined in the IP Hold-Co Operating Agreement), and (y) after the occurrence of a Triggering Event (as defined in the IP Hold-Co Operating Agreement), the Fortress Member (or its designee) shall become the sole manager of the IP Hold-Co.

 

IP Hold-Co Documents” means the IP Hold-Co Operating Agreement, the Patent License Agreement and the Patent Assignment Agreement.

 

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IP Hold-Co Operating Agreement” means that certain Operating Agreement dated as of December 30, 2020 entered into by IP Hold-Co, the Borrower and the Agent in its capacity as the Fortress Member, as amended and restated by that certain Amended and Restated Operating Agreement dated as of the First Restatement Effective Date, and as the same may be further amended, restated, amended and restated, modified or supplemented from time to time with the consent of the Agent.

 

IP Security Agreement” means each Intellectual Property Security Agreement or other short-form copyright, patent or trademark (as the case may be), security agreement, entered into from time to time by a Loan Party in favor of the Collateral Agent (on behalf of the Secured Parties) with such changes as approved by the Agent, in each case, as the same may be amended, amended and restated, restated, supplemented or otherwise modified from time to time.

 

IRS” means the United States Internal Revenue Service.

 

Israeli 2023 Borrower Trademarks Fixed Charge Pledge” means the Israeli law fixed charge debenture entered into on or about the Second Restatement Effective Date in connection with the second amendment and restatement of this Agreement, among Borrower and the Collateral Agent, creating an Israeli law fixed charge over Borrower’s trademarks in favor of the Collateral Agent (on behalf of the Secured Parties).

 

Israeli 2023 Floating Charge Debenture” means the Israeli law floating charge debenture entered into on or about the Second Restatement Effective Date in connection with the second amendment and restatement of this Agreement, among Israeli Guarantor and the Collateral Agent, creating an Israeli law floating charge over all of Israeli Guarantor’s assets, in favor of the Collateral Agent (on behalf of the Secured Parties).

 

Israeli 2023 IP Hold-Co Fixed Charge Pledge” means the Israeli law fixed charge debenture entered into on or about the Second Restatement Effective Date in connection with the second amendment and restatement of this Agreement, among IP Hold-Co and the Collateral Agent, creating an Israeli law fixed charge over IP Hold-Co’s patents in favor of the Collateral Agent (on behalf of the Secured Parties).

 

Israeli 2023 Share Pledge” means the Israeli law share pledge agreement entered into on or about the Second Restatement Effective Date in connection with the second amendment and restatement of this Agreement, among Airspan Communications Limited and the Collateral Agent, creating an Israeli law share pledge over all of the issued and outstanding equity interests in Israeli Guarantor in favor of the Collateral Agent (on behalf of the Secured Parties).

 

Israeli Borrower Trademarks Fixed Charge Pledge” means the Israeli law fixed charge debenture, dated December 30, 2020, among Borrower and the Collateral Agent, creating an Israeli law fixed charge over Borrower’s trademarks in favor of the Collateral Agent (on behalf of the Secured Parties).

 

Israeli Companies Law” means the Israeli Companies Law, 1999.

 

Israeli Floating Charge Debenture” means the Israeli law floating charge debenture, dated December 30, 2020, among Israeli Guarantor and the Collateral Agent, creating an Israeli law floating charge over all of Israeli Guarantor’s assets, in favor of the Collateral Agent (on behalf of the Secured Parties).

 

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Israeli Guarantee Law” is defined in Section 9.04(g).

 

Israeli Guarantor” means Airspan Networks Ltd, and any other party organized under the laws of the State of Israel which joins this Agreement pursuant to the terms of Section 6.12(c).

 

Israeli Insolvency Law” means the Israeli Insolvency and Economic Rehabilitation Law, 2018.

 

Israeli IP Hold-Co Fixed Charge Pledge” means the Israeli law fixed charge debenture, dated December 30, 2020, among IP Hold-Co and the Collateral Agent, creating an Israeli law fixed charge over IP Hold-Co’s patents in favor of the Collateral Agent (on behalf of the Secured Parties).

 

Israeli Second Amendment Borrower Trademarks Fixed Charge Pledge” means the Israeli law fixed charge debenture entered into on 25 August 2021 in connection with the amendment and restatement of this Agreement, among Borrower and the Collateral Agent, creating an Israeli law fixed charge over Borrower’s trademarks in favor of the Collateral Agent (on behalf of the Secured Parties).

 

Israeli Second Amendment Floating Charge Debenture” means the Israeli law floating charge debenture entered into on 25 August 2021 in connection with the amendment and restatement of this Agreement, among Israeli Guarantor and the Collateral Agent, creating an Israeli law floating charge over all of Israeli Guarantor’s assets, in favor of the Collateral Agent (on behalf of the Secured Parties).

 

Israeli Second Amendment IP Hold-Co Fixed Charge Pledge” means the Israeli law fixed charge debenture entered into on 25 August 2021 in connection with the amendment and restatement of this Agreement, among IP Hold-Co and the Collateral Agent, creating an Israeli law fixed charge over IP Hold-Co’s patents in favor of the Collateral Agent (on behalf of the Secured Parties).

 

Israeli Second Amendment Share Pledge” means the Israeli law share pledge agreement entered into on 25 August 2021 in connection with the amendment and restatement of this Agreement, among Airspan Communications Limited and the Collateral Agent, creating an Israeli law share pledge over all of the issued and outstanding equity interests in Israeli Guarantor in favor of the Collateral Agent (on behalf of the Secured Parties).

 

Israeli Security Documents” means the Israeli Floating Charge Debenture, Israeli Borrower Trademarks Fixed Charge Pledge, Israeli IP Hold-Co Fixed Charge Pledge, Israeli Share Pledge, Israeli Second Amendment Floating Charge Debenture, Israeli Second Amendment Borrower Trademarks Fixed Charge Pledge, Israeli Second Amendment IP Hold-Co Fixed Charge Pledge, the Israeli Second Amendment Share Pledge, Israeli 2023 Floating Charge Debenture, Israeli 2023 Borrower Trademarks Fixed Charge Pledge, Israeli 2023 IP Hold-Co Fixed Charge Pledge, Israeli 2023 Share Pledge, and any other Israeli law governed Collateral Documents entered into from time to time.

 

Israeli Share Pledge” means the Israeli law share pledge agreement, dated December 30, 2020, among Airspan Communications Limited and the Collateral Agent, creating an Israeli law share pledge over all of the issued and outstanding equity interests in Israeli Guarantor in favor of the Collateral Agent (on behalf of the Secured Parties).

 

IT Systems” means all software, computer hardware, servers, networks, platforms, peripherals, and similar or related items of automated, computerized, or other information technology (IT) networks and systems (including telecommunications networks and systems for voice, data, and video) owned, leased, licensed, or used (including through cloud-based or other third-party service providers) in the current conduct of the business of the Loan Parties.

 

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Japanese Guarantor” means Airspan Japan KK, a stock company (kabushiki kaisha) organized under the laws of Japan.

 

Japanese Security Documents” means each of (a) the Assignment of Receivables from Japanese Guarantor to the Lenders and the Purchasers under the Note Purchase Agreement dated November 26, 2021; (b) the Consent to Assignment of Receivables delivered by Rakuten Mobile, Inc. on November 26, 2021 and (c) each other Japanese law governed Collateral Document entered into from time to time.

 

Joinder Date” is defined in Section 6.12(c)(ii).

 

Judgment Currency” is defined in Section 13.20.

 

Key Customers” means Rakuten Mobile, Inc., Sprint Corporation, Reliance Jio Infocomm Limited and Gogo Business Aviation, LLC.

 

Key Investors” means Oak Investments, Reliance Jio Infocomm Limited, and Softbank Group Capital Limited.

 

Knowledge” means, with respect to any Person, the actual knowledge of executive officers (as defined in Rule 405 under the Securities Act) of such Person, after due inquiry.

 

Laws” means, collectively, all international, foreign, supranational, Federal, state and local laws, statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations, clearances, approvals, exemptions and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.

 

Lender” means each Person listed on the signature pages hereto and/or to the Second Restatement as a Lender, and any other Person that becomes a party hereto pursuant to an Assignment Agreement.

 

Liabilities” is defined in Section 13.17.

 

Licenses” shall mean all licenses and any other agreement granting any right (or under which any Person agrees to refrain from exercising any right, including any covenant not to sue) with respect to any Intellectual Property (whether a Person is the grantor or grantee thereunder).

 

Lien” means any lien, mortgage, deed of trust, pledge, security interest, charge, assignment or encumbrance or security or preferential arrangement of any kind (including, without limitation, any conditional sale or other title retention agreement, any lease in the nature thereof, any agreement to give any security interest, and any assignment, deposit arrangement or financing lease intended as, or having the effect of, security).

 

Liquidation Event” has the meaning assigned to such term in the IP Hold-Co Operating Agreement.

 

Loan Amendment Transactions” has the meaning assigned to such term in the Reaffirmation and Amendment Agreement, and shall mean and include for purposes of this Agreement all incidental steps and transactions further detailed in this Agreement and in the other Transaction Documents.

 

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Loan Documents” means this Agreement, the Amendment and First Restatement Agreement, the Intercreditor and Subordination Agreements, the Merger Consent, the Disclosure Schedules, the Board Observation Rights Letter, the Notes, the Warrants, the Reaffirmation and Omnibus Amendment Agreement, the Second Restatement, the Perfection Certificate, the Compliance Certificate, each Collateral Document (excluding the Convertible Notes and the Note Purchase Documents), the Patent Assignment Agreement, the Patent License Agreement, each intercreditor agreement, fee letter, subordination agreement, joinder agreement, process agent appointment letters, notice, acknowledgment and consents, powers of attorney and any and all other present or future documents, instruments, agreements, reports, deeds and certificates required to be executed and delivered by a Loan Party in connection herewith or in connection with this Agreement or otherwise designated by the Borrower and the Administrative Agent as a “Loan Document” from time to time.

 

Loan Obligations” means the Obligations, excluding the Obligations arising under the Note Purchase Documents.

 

Loan Parties” means each Borrower and Guarantor.

 

Loan Party Agent” is defined in Section 12.07(a).

 

Loans” means Initial Term Loans, Tranche 2 Term Loans, and/or Delayed Draw Term Loans, as the context may require, and any increases in the principal amount of any Loans as a payment of PIK Interest pursuant to Section 2.02.

 

Margin Cash Component” shall mean the portion of the Applicable Rate which may only be paid in cash.

 

Margin PIK Component” shall mean the portion of the Applicable Rate which may be paid in kind.

 

Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect upon, the operations, business, prospects, properties or financial condition of Holdings and its Subsidiaries taken as a whole; (b) a material impairment of the ability of any Loan Party to perform its obligations under the Loan Document to which it is a party; (c) a material impairment in the perfection or priority of the Collateral Agent’s Lien in and on the Collateral as a whole; or (d) a material adverse effect upon the legality, validity, binding effect or enforceability against any Secured Party of any Loan Document to which it is a party (as represented in, and subject to the qualifications contained in, Section 5.04).

 

Material Contract” means (i) each of the contracts listed on Schedule 5.23 and (ii) each contract, agreement, instrument, permit, lease or license, written or oral, of any Loan Party, (a) which is material to any Loan Party’s business or which the failure to comply with could reasonably be expected to result in a Material Adverse Effect; or (b) the aggregate value of which any Loan Party has a right to make or receive payments in respect thereof exceeds One Million Dollars ($1,000,000).

 

Material Indebtedness” means Indebtedness of Holdings or any of its subsidiaries in an aggregate amount in excess of One Million Dollars ($1,000,000).

 

Material Intellectual Property” means all (a) Assigned Patents, and (b) other Intellectual Property owned or exclusively licensed by Holdings or any Subsidiary of Holdings that is material to the business of Holdings and its Subsidiaries, taken as a whole.

 

Material License” is defined in Section 5.17(a).

 

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Material Real Property” means any real property with a book value (at the time of acquisition) or fair market value in excess of One Million Five Hundred Thousand Dollars ($1,500,000) owned by any Loan Party.

 

Material Regulatory Permits” means any Regulatory Permits where the failure to possess or maintain such Regulatory Permits, or restrictions placed thereon, in either case, could reasonably be expected, either individually or in the aggregate, to result in either (a) a material adverse effect on any Assigned Patent or (b) a Material Adverse Effect.

 

Maturity Date” means the earlier of (i) the Stated Maturity Date and (ii) the date that all Loans and other Obligations shall become due and payable in full hereunder, whether by acceleration or otherwise.

 

Maximum Note Obligations” shall mean, on any date of determination thereof, an amount equal to (i) $50,000,000 minus (x) payments actually made to and applied by the Secured Parties on or prior to such date of determination on account of the unpaid principal amount of the Obligations arising under the Note Purchase Documents and (y) such principal amounts as have been converted into Common Stock (as defined in the Convertible Notes) on or prior to such date of determination, plus (ii) the amount of all capitalized or otherwise accrued and unpaid fees (including without limitation any applicable Specified Fees) and expenses in respect of the Note Obligations plus (iii) all accrued and capitalized and all accrued but unpaid interest at any time or times due or payable in connection with such Obligations plus (iv) fifteen percent (15%) of the sum of clause (i), clause (ii) and clause (iii).

 

Maximum Rate” is defined in Section 13.16.

 

Merger Agreement” means that certain Business Combination Agreement dated as of March 8, 2021, by and between Holdings, Merger Sub and the Borrower, as the same may be amended, restated, amended and restated, modified or supplemented from time to time in accordance with the terms of this Agreement and the Merger Consent.

 

Merger Consent” shall have the meaning assigned to such term in the Recitals hereto.

 

Merger Sub” shall have the meaning assigned to such term in the Recitals hereto.

 

Mimosa” means Mimosa Networks, Inc., a Delaware corporation.

 

Mimosa Closing Date” has the meaning given to such term in the Second Restatement.

 

Mimosa Purchase Agreement” has the meaning given to such term in the Second Restatement.

 

Monthly Amortization Commencement Date” means the first Interest Payment Date after the twelve (12) month anniversary of the Closing Date.

 

Mortgage” means, collectively, the deeds of trust, trust deeds, debentures, deeds and/or other local law equivalent to secure debt and mortgages creating and evidencing a Lien on a Mortgaged Property made by any Loan Party in favor or for the benefit of the Collateral Agent on behalf of the Secured Parties executed and delivered pursuant to Section 6.12, Section 6.24 and/or Section 6.26 as applicable.

 

Mortgage Policies” is defined in clause (f) of the definition of “Collateral and Guarantee Requirement.”

 

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Mortgaged Properties” is defined in clause (f) of the definition of “Collateral and Guarantee Requirement.”

 

Mortgaged Property” means a parcel of real property owned by a Loan Party and subject to a Mortgage granted by such Loan Party in favor of the Collateral Agent.

 

Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which any Loan Party or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five (5) plan years, has made or been obligated to make contributions.

 

Net Cash Proceeds” means:

 

(a) with respect to any Transfer (other than the issuance of Equity Interests of Holdings, which is addressed under clause (b) of this definition), Asset Disposition or any insurance or condemnation award, the aggregate cash proceeds (including cash proceeds received pursuant to policies of insurance or condemnation awards or by way of deferred payment of principal pursuant to a note, installment receivable or otherwise, but only as and when cash is actually received) received by Holdings or any Subsidiary pursuant to any such Transfer, Asset Disposition or insurance proceeds or condemnation award net of (i) the direct costs relating to such Asset Disposition (including sales commissions and legal, accounting and investment banking fees), (ii) net income taxes paid as a result thereof (after taking into account any tax credits or deductions and any tax sharing arrangements) and (iii) amounts required to be applied to the repayment of any Indebtedness secured by a Lien on the asset subject to any such Transfer or other Asset Disposition (other than the Loans) or required to be paid to parties (other than Affiliates of any Loan Party) having superior rights to the proceeds of any such Transfer or other Asset Disposition to the extent such superior rights are permitted hereunder; and

 

(b) with respect to any issuance of Equity Interests of Holdings or Indebtedness (excluding Permitted Indebtedness), the aggregate cash proceeds received by Holdings or any of its Subsidiaries pursuant to such issuance, net of the direct costs of such issuance (including reasonable and documented up-front, underwriters’ and placement fees and any related tax, legal and accounting fees) to the extent that such costs, fees and expenses are paid to non-Affiliates.

 

Net EBITDA Leverage Ratio” means, with respect to Holdings and its consolidated Subsidiaries, as of any date of determination, the ratio of (a) (i) the total outstanding principal amount of the Loans less (ii) the Unrestricted Cash of the Loan Parties, to (b) the EBITDA of Holdings and its consolidated Subsidiaries for the most recently ended Test Period.

 

Non-Consenting Lender” is defined in Section 2.09(b).

 

Non-Declining Holders” is defined in Section 2.01(e)(iv).

 

Non-Loan Party Subsidiary” means any Subsidiary of Holdings that is not a Loan Party.

 

Note” means a promissory note made by Borrower in favor of a Lender evidencing a Loan, in the form of Exhibit B.

 

Note Purchase Agreement” means that certain Senior Secured Convertible Note Purchase and Guarantee Agreement dated as of July 30, 2021, by among others, Holdings, Borrower (as successor by merger to Merger Sub) and the other guarantors party thereto from time to time, Fortress in its capacity as collateral agent thereunder, and the Purchasers (as defined therein), as the same may be amended, restated, amended and restated, supplemented or modified from time to time in accordance with the terms of this Agreement and the Pari Passu Intercreditor Agreement.

 

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Note Purchase Documents” means the “Note Documents” as defined in the Note Purchase Agreement and the other “Note Documents” (as defined in the Note Purchase Agreement), the Convertible Notes issued in connection therewith and the other agreements and other instruments issued in connection therewith, together with any guarantees thereof and any security documents, other collateral documents and other instruments relating thereto, to the extent such are effective at the relevant time, as each may be amended and restated, modified, restated, supplemented, replaced or refinanced from time to time in accordance with the terms of this Agreement and the Pari Passu Intercreditor Agreement.

 

Notice of Borrowing” means a written notice of a requested Borrowing substantially in the form of Exhibit A-1 signed by an authorized signatory of the Borrower, in which the Borrower requests a Loan and specifies and certifies, amongst other things, (a) the name of the Borrower, (b) the requested date of Borrowing (which shall be a Business Day during the applicable Borrowing Period for such tranche of Loans), (c) the principal amount of the Loans to be borrowed and the tranche and Type of Loan to be requested; (d) the use of proceeds of the Loan (which must be a purpose permitted by Section 6.09 for the type of Loan requested), (e) the account to which the proceeds of the Borrowing should be directed, (f) that all conditions precedent for such Loan set forth in Section 3.02, as applicable, have been satisfied, and (g) if the Borrowing is for a date other than the Closing Date, containing a calculation of the financial covenants and attaching supporting evidence demonstrating compliance both before and after giving pro forma effect to such Borrowing based on the most recent reporting delivered to the Lenders but giving pro forma effect to any material acquisitions, Transfer, or incurrence of additional Indebtedness, or Liens occurring during such period (detailing in such calculation any such adjustments made). Except as otherwise provided herein, each such Notice of Borrowing for each Loan shall be irrevocable and the Borrower shall be bound to make such borrowings in accordance therewith.

 

Oak Investments” means Oak Investment Partners XI, LP and Oak Investment Partners XIII, LP.

 

Obligations” means all Indebtedness and each and every other obligation of every nature (including expense reimbursement and indemnification) of each Loan Party under the Loan Documents (other than the Warrants) and the Note Purchase Documents, whether for principal, interest, fees, expenses, prepayment premiums, any Applicable Prepayment Premium, the Specified Fees (including, in each case as defined in the Convertible Notes, any Backstop Fee, Administration Fee, Change of Control Repurchase Price, or other Applicable Prepayment Premium), regardless of how such obligation arises or by what agreement or instrument it may be evidenced, whether or not it is or may be direct, indirect, matured, unmatured, absolute, contingent, primary, secondary, liquidated, unliquidated, disputed, undisputed, joint, joint and several, legal, equitable, secured or unsecured, and whether or not any claim for such Indebtedness, liability or obligation is discharged, stayed or otherwise affected by any proceeding under any Debtor Relief Law. Without limiting the generality of the foregoing, the Obligations of each Loan Party include (a) the obligation (irrespective of whether a claim therefor is allowed in a proceeding under any Debtor Relief Law) to pay principal, interest, fees, expenses, prepayment premiums, any Applicable Prepayment Premium, the Specified Fees and/or Attorneys’ Fees (including, in each case as defined in the Convertible Notes, any Backstop Fee, Administration Fee, Change of Control Repurchase Price, or other Applicable Prepayment Premium) and disbursements, indemnities and other amounts payable by such Person under the Loan Documents (other than the Warrants) or the Note Purchase Documents, (b) the obligation to pay all costs and expenses incurred by the Collateral Agent and/or any other Secured Party to obtain, preserve, perfect and enforce the security interest granted herein and to maintain, preserve and collect the property subject to the security interest, including but not limited to all reasonable Attorneys’ Fees and expenses of any Secured Party to enforce any Obligations whether or not by litigation and (c) the obligation to reimburse any amount in respect of any of the foregoing that any Secured Party (in its reasonable discretion pursuant to the terms of this Agreement or any other Loan Document or Note Purchase Document) may elect to pay or advance of behalf of such Loan Party.

 

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Obligee Guarantor” is defined in Section 9.07.

 

OFAC” is defined in Section 5.22(b)(iv).

 

Operating Expenses” means the sum of, commission fees and expenses, distributor fees and expenses, group purchasing organization fees and expenses, other network operations expenses, clinical, research and development expenses, sales and marketing expenses and general and administrative expenses of Holdings and its Subsidiaries; provided, however, that in no event shall any of the expenses, fees and costs arising from or related to the transactions contemplated by this Agreement, the Loan Documents and the other Transaction Documents, in each case to be paid on the Closing Date and identified to the Agents and Secured Parties in writing, be considered or deemed to constitute “Operating Expenses” for purposes of this Agreement.

 

Organization Documents” means, (a) with respect to any corporation, the certificate or articles of incorporation, the bylaws, articles of association, memorandum (where applicable), shareholders registry and directors registry, limited liability agreement, operating agreement and all shareholder agreements, voting trusts and similar arrangements applicable to such company’s Equity Interests, or any equivalent document of any of the foregoing; (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership (or, with respect to any limited liability company incorporated under the laws of England and Wales, its certificate of incorporation, articles of association and memorandum of association), joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.

 

Original Credit Agreement” means that certain Second Amended and Restated Loan and Security Agreement dated as of November 20, 2018 (as amended prior to December 30, 2020), by and among Borrower, the Guarantors, and the other lenders and financial institutions party thereto and Pacific Western Bank, in its capacity as administrative agent and collateral agent.

 

Original Loans” has the meaning assigned to such term in the Reaffirmation and Omnibus Amendment Agreement.

 

Origination Fees” means, collectively, the Initial Origination Fee and the Second Restatement Origination Fee.

 

Other Connection Taxes” means Taxes imposed as a result of a present or former connection between a Lender and the jurisdiction imposing such Tax (other than connections arising from such Lender having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any rights under any Loan Document, or sold or assigned an interest in any Loan or Loan Document).

 

Other Material Jurisdictions” means, as of the Closing Date, India.

 

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Other Taxes” means all present or future stamp duty, stamp duty land tax, court or documentary, intangible, excise, sales, value added, property or franchise taxes, taxes on deemed income or other taxes, registration, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.09).

 

Pacific Western Fee Letter” means that certain Agreement Regarding Success Fees, Cash Pledge Agreements and Lockbox Services dated on or about the Closing Date among certain of the Loan Parties and PWB and evidencing (i) $420,000 in Success Fees (as defined therein) payable upon the occurrence of the Borrower’s initial public offering and certain other fundamental transactions described therein and (ii) the pledge by the Borrower of certain accounts of the Borrower in order to secure existing letters of credit and other obligations owed to PWB pursuant to certain Cash Pledge Agreements (as defined therein); it being understood the Pacific Western Fee Letter shall not be amended in a manner adverse to the Secured Parties or the Loan Parties without the prior written consent of the Administrative Agent (it being understood that any increase in the quantum of the Success Fees shall be deemed to be deemed to be adverse to the Secured Parties).

 

Pari Passu Intercreditor Agreement” means that certain Intercreditor Agreement dated as of the First Restatement Effective Date, by, among others, Holdings, the Borrower, the Guarantors, and Fortress in its capacity as the Collateral Agent hereunder and as the Collateral Agent under the Note Purchase Agreement, as the same may be amended, restated, amended and restated, supplemented, or otherwise modified from time to time in accordance with the terms hereof and thereof.

 

Pari Passu Payment” is defined in Section 2.01(e)(iv).

 

Participant Register” is defined in Section 13.01(d).

 

Patent Act” means (i) the United States law applicable to patents commonly referred to as the US Patent Act that is codified in 35 U.S.C. § 1 et seq., (ii) the UK law applicable to patents commonly known as the Patents Act 1977 that is codified in UK Public General Acts, 1977, c. 37, and (iii) the Israeli law applicable to patents commonly referred to as Patents Law that is codified in Patents Law 5727-1967 (up through the most recent amendment, the 10th amendment published on July 12, 2012).

 

Patent Assignment Agreement” means the agreement providing for the assignment of the Assigned Patent Rights by certain of the Loan Parties (other than IP Hold-Co) in favor of IP Hold-Co dated as of the Closing Date (as the same may be amended, amended and restated, supplemented or otherwise modified from time to time).

 

Patent License Agreement” means a non-exclusive license agreement by and between certain of the Loan Parties (other than IP Hold-Co) and their Subsidiaries, as licensees of the Assigned Patent Rights, and IP Hold-Co, as licensor dated as of the Closing Date (as the same may be amended, amended and restated, supplemented or otherwise modified from time to time).

 

Patent Prosecution Allotment” means an amount not to exceed Five Hundred Thousand Dollars ($500,000) during the period from the Closing Date through the Maturity Date (which shall be in addition to the Five Hundred Thousand Dollars ($500,000) per annum currently budgeted for any maintenance, annuity, prosecution, or similar fees with regard to the Intellectual Property) designated for the Patent Prosecution Workplan, which Patent Prosecution Allotment shall be funded solely with the proceeds of the Initial Term Loans.

 

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Patent Prosecution Workplan” means the work plan regarding the improvement, development, enhancement and prosecution of any Intellectual Property (including the Assigned Patent Rights) developed and directed by the Loan Parties and the Administrative Agent and approved by the Administrative Agent in its reasonable business discretion.

 

Patents” means all of the following: (a) all letters patent of the United States or the equivalent thereof in any other country, and all applications for letters patent of the United States or the equivalent thereof in any other country, including certificates of invention, utility models, industrial design protection, design patent protection, and other governmental grants or issuances, and the right to make application for any of the foregoing, (b) all reissues, reexaminations, extensions, renewals continuations, continuations in part and divisionals thereof, (c) the inventions disclosed or claimed therein, including the right to make, use or sell the inventions disclosed or claimed therein, (d) all income, royalties, damages and payments now or hereafter due or payable under and with respect thereto, including payments under all licenses entered into in connection therewith and damages and other payments for past or future infringements or other violations, and (e) the right to sue for past, present and future infringement or other violation thereof.

 

PATRIOT Act” shall mean the USA PATRIOT Act, Pub. L. 107-56 (signed into law October 26, 2001), as amended by the USA PATRIOT Improvement and Reauthorization Act, Pub. L. 109-177 (signed into law March 9, 2006) (as amended from time to time).

 

PBGC” means the Pension Benefit Guaranty Corporation.

 

Pension Plan” means any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA) and/or any other foreign pension plans in accordance to any other applicable Laws and special arrangements, collective bargaining agreements and extension orders in any applicable jurisdiction, in each case, other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained by a Loan Party or any ERISA Affiliate or to which any Loan Party or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time during the immediately preceding five (5) plan years.

 

Perfection Certificate” means the perfection certificate dated as of the Closing Date (as the same may be amended, amended and restated, supplemented or otherwise modified from time to time).

 

Performance Due Date” is defined in Section 6.27(b).

 

Performance Milestones” means, collectively, the milestones set forth on Appendix C hereto which the Borrower and the other Loan Parties have agreed to adhere to within the time limits specified on such Appendix C (as such time limits may be extended in writing by the Administrative Agent in its sole discretion).

 

Periodic Term SOFR Determination Day” is defined in clause (a) of the definition of “Term SOFR”.

 

Permitted Indebtedness” means:

 

(i) the Loan Obligations;

 

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(ii) (i) unsecured Indebtedness of any Loan Party to any other Loan Party; (ii) unsecured Indebtedness of any Loan Party owing to a Subsidiary which is not a Loan Party; (iii) unsecured Indebtedness of any Subsidiary which is not a Loan Party to any Loan Party in an aggregate amount collectively not to exceed One Million Dollars ($1,000,000) outstanding at any time and (iv) unsecured Indebtedness of any Subsidiary which is not a Loan Party to any other Subsidiary which is not a Loan Party; provided that all such Indebtedness shall be in form and substance satisfactory to the Collateral Agent and such shall be subject to the Intercompany Subordination Agreement and, where required by the Agent, shall be delivered to the Collateral Agent (together with such documents and instruments as may be requested by Administrative Agent pursuant to the terms of this Agreement, the Intercompany Subordination Agreement or any of the other Loan Documents);

 

(iii) obligations under the Warrants and any warrants issued in connection with the De-SPAC Transaction, in each case, to the extent constituting Indebtedness;

 

(iv) (A) unsecured Indebtedness incurred by Holdings or any of its Subsidiaries in the ordinary course of business arising from agreements not for borrowed money providing for indemnification or from guaranties or letters of credit, surety bonds or performance bonds or similar reimbursed type obligations incurred in the ordinary course of business and securing the performance of Holdings or any such Subsidiary pursuant to such agreements, in connection with dispositions permitted by Section 7.01 or permitted dispositions of any business, assets of Holdings, the Borrower or any of its Guarantor Subsidiaries in accordance with this Agreement, so long as any such obligations are those of the Person making the respective acquisition or sale, and are not guaranteed by any other Person except as permitted by clause (B) of this clause and (B) (i) Indebtedness consisting of unsecured guaranties by any Loan Party of the Indebtedness and lease and other contractual obligations (including, without limitation, guaranties of any License entered into in the ordinary course of business by a Loan Party), in each case, of any other Loan Party, to the extent permitted under this Agreement, solely to the extent that, if any such Indebtedness of a Loan Party is Subordinated Indebtedness, any such guarantee of such Subordinated Indebtedness is contractually subordinated to the Obligations, on terms and conditions acceptable to the Agent;

 

(v) Indebtedness evidenced by the Softbank Loan Documents in a principal amount not to exceed (A) the amount of Indebtedness on the Closing Date plus any accrued and capitalized interest earned thereon at the interest rate set forth therein on the Closing Date solely to the extent such Indebtedness is contractually subordinated to the Obligations pursuant to a Subordination Agreement on terms acceptable to the Agent and (x) does not mature and is not subject to scheduled amortization, mandatory redemption, repurchase, prepayment or sinking fund obligation prior to the date that is 365 days after the Maturity Date (other than any provision requiring an offer (i) to purchase or redeem such Indebtedness or the payment of any cash amount as a result of a change of control, asset sale or similar provision so long as any right of the holders thereof upon the occurrence of a change of control, fundamental change, asset sale or similar provision shall be subject to the prior repayment in full of the Obligations under the Loan Documents, (ii) to purchase, redeem, convert or otherwise exchange such Indebtedness solely for Equity Interests in Holdings), (y) does not provide for cash payment of interest in excess of the rate per annum set forth in the Softbank Loan Documents on the Closing Date, and (z) shall not have the benefit of any security other than as described in the Softbank Loan Documents in effect on the Closing Date (other than the Dense Air Group) or direct or indirect obligors who are not also obligors and security providers on the Loans and (B) any Permitted Refinancing (as hereinafter defined) thereof so long as such Permitted Refinancing complies with clauses (x) through (z) above;

 

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(vi) unsecured Indebtedness in respect of netting services, overdraft protections and otherwise in connection with Deposit Accounts incurred in the ordinary course of business; provided however that such Indebtedness is extinguished within ten (10) Business Days of incurrence and/or in respect of cash management obligations provided by such bank or other financial institution, such Indebtedness is unsecured or has been subordinated to the Obligations in a manner reasonably acceptable to the Collateral Agent;

 

(vii) [Reserved];

 

(viii) Indebtedness described in Schedule 7.09 on the First Restatement Effective Date, but not any extensions, renewals or replacements of such Indebtedness (each a “Refinancing”) except (x) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the First Restatement Effective Date, and (y) Refinancing of any such Indebtedness if (A) the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced, renewed, extended or replaced (“Refinanced” and such Indebtedness, “Refinanced Indebtedness”), (B) the average life to maturity thereof is greater than or equal to that of the Indebtedness being Refinanced, (C) such Refinanced Indebtedness shall not require any scheduled principal payments due prior to the Maturity Date in excess of or prior to the scheduled principal payments for the Indebtedness being refinanced due prior to such Maturity Date, (D) if the Indebtedness being Refinanced is unsecured or subordinated to the Obligations under this Agreement, such Refinancing shall be unsecured or subordinated to such Obligations on terms at least as favorable to the Secured Parties as those contained in the documentation governing the Indebtedness being Refinanced, respectively, (E) with respect to any such Refinancing of any subordinated Indebtedness, such Refinancing does not mature and is not subject to mandatory redemption, repurchase, prepayment or sinking fund obligation prior to the date that is one hundred and eighty-one (181) days after the Maturity Date at the time such Refinancing is incurred (other than any provision requiring an offer (i) to purchase such Indebtedness or the payment of any cash amount as a result of a change of control, fundamental change, asset sale, put right or similar provision so long as any right of the holders thereof shall be subject to the prior repayment in full of the Obligations under the Loan Documents or (ii) to purchase, redeem, convert or otherwise exchange such Indebtedness solely for Equity Interests in Holdings), (F) no Refinancing shall have direct or indirect obligors who were not also obligors of the Indebtedness being Refinanced, or greater guarantees or security, than the Indebtedness being Refinanced and the priority of any security shall be the same or junior to the Indebtedness being refinanced, and (G) at the time thereof, no Default or Event of Default shall have occurred and be continuing or would result therefrom (a Refinancing meeting all of the requirements of this clause (y), a “Permitted Refinancing”);

 

(ix) Indebtedness in an aggregate amount not to exceed One Million Five Hundred Thousand Dollars ($1,500,000) at any time with respect to (A) Capitalized Leases and (B) purchase money Indebtedness to finance the acquisition of fixed or capital assets (including any Indebtedness acquired in connection with a disposition permitted by Section 7.01); provided, that no Default or Event of Default shall exist at the time of incurrence and in the case of clause (A), that any such Indebtedness shall be secured only by the asset subject to such Capitalized Lease, and, in the case of clause (B), that any such Indebtedness shall be secured only by the asset acquired in connection with the incurrence of such Indebtedness and provided further that, if requested by the Agent, the Loan Parties shall use commercially reasonable efforts to cause the holders of any such Indebtedness incurred to finance the acquisition of assets containing information relating to Intellectual Property, licensing arrangements or financial information to enter into an intercreditor agreement with the Agent on terms satisfactory to the Agent;

 

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(x) [Reserved];

 

(xi) overdue trade payables incurred in the ordinary course of business in an aggregate amount not to exceed at any time Ten Million Dollars ($10,000,000) (it being understood that for purpose of calculating such amount, trade payable amounts which are overdue because they are being contested in good faith and by appropriate proceedings diligently conducted shall not be included in such Ten Million Dollars ($10,000,000) limit (and shall be permitted) for so long as such amounts remain disputed provided that during the pendency of such dispute adequate reserves to make such payments if and when due shall have been established in accordance with GAAP on the books of Holdings, the Borrower or, as applicable, such Subsidiary);

 

(xii) Indebtedness incurred as a result of endorsing negotiable instruments for deposit or collection received in the ordinary course of business;

 

(xiii) Indebtedness incurred in the ordinary course of business consisting of interest rate, currency, or commodity swap agreements, interest rate cap or collar arrangements or arrangements designed to protect a Person against fluctuations in interest rates, currency exchange rates, or commodity prices and not for speculative purposes, provided the potential total liability thereon does not at any time exceed the amount permitted for such Investments pursuant to clause (xii) of the definition of Permitted Investments;

 

(xiv) Indebtedness evidenced by the Golden Wayford Note and other Indebtedness subordinated to the Obligations pursuant to a subordination agreement described in clause (iv) of the definition of Subordination Agreement; provided that (i) such Indebtedness is subordinated on terms satisfactory to the Administrative Agent and (ii) the aggregate amount of such Indebtedness does not at any time exceed (A) the amount of such Indebtedness existing on the Closing Date plus (B) accrued and capitalized interest in respect thereof (provided that any such interest shall be paid in kind and at no time shall the all-in rate of interest on such Indebtedness (including any capitalized amount) exceed twelve percent (12%) per annum);

 

(xv) Indebtedness arising from the financing of insurance premiums over a period not extending beyond the term of the related insurance policy, in a total amount not to exceed One Million Four Hundred Thousand Dollars ($1,400,000);

 

(xvi) the Priority Lien Obligations as in effect on the Second Restatement Effective Date (other than the Loan Obligations) and as the same may be amended from time to time in accordance with the terms of the Note Purchase Documents and the Pari Passu Intercreditor Agreement, provided that (A) such Priority Lien Obligations are subject to the Pari Passu Intercreditor Agreement and (B) such Priority Lien Obligations (other than the Loan Obligations) do not exceed the Maximum Note Obligations; and

 

(xvii) other unsecured Indebtedness of Holdings or any Subsidiary of Holdings other than the types listed in (i) through (xvi) above, which is unsecured and subordinated to the Obligations in a manner satisfactory to Administrative Agent in an aggregate amount not to exceed One Million Dollars ($1,000,000) in the aggregate at any time.

 

Permitted Intercompany Investments” is defined in the definition of “Permitted Investments.”

 

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Permitted Investments” means:

 

(i) Investments consisting of Cash and Cash Equivalents in the ordinary course of business;

 

(ii) the Loan Parties and their Subsidiaries may own the Equity Interests of their respective Subsidiaries or Subsidiaries created or acquired in accordance with this Agreement (so long as all amounts invested in such Subsidiaries are independently justified under another clause of this definition);

 

(iii) (i) advances in the form of a prepayment of expenses to vendors, suppliers and trade creditors consistent with their past practices, so long as such expenses were incurred in the ordinary course of business and (ii) Investments in the ordinary course of business of consisting of (A) deposits made to secure the performance of leases or (B) endorsements of negotiable instruments for collection or deposit and customary trade arrangements with customers, suppliers, franchisee and licensees consistent with past practices;

 

(iv) (i) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and to the extent consistent with past practice Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent necessary in order to prevent or limit loss; (ii) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business; and (iii) Investments consisting of deposits, prepayments and other credits to suppliers made in the ordinary course of business consistent with the past practices of Holdings and its Subsidiaries;

 

(v) (i) Investments by any Loan Party and its Subsidiaries in their respective Subsidiaries; provided, that such Investments are outstanding on the Closing Date, (ii) additional Investments by any Loan Party and its Subsidiaries in other Loan Parties, (iii) Investments made by any Non-Guarantor Subsidiaries in the Loan Parties so long as they are subject to the Intercompany Subordination Agreement and any Investments in the form of Indebtedness are permitted under clause (ii) of the definition of “Permitted Indebtedness”, (iv) Investments by any Non-Guarantor Subsidiaries in any other Non-Guarantor Subsidiaries and (v) Investments by any Loan Party and its Subsidiaries in Non-Guarantor Subsidiaries constituting (A) non-monetary Investments consisting of the acquisition or formation and ownership of the Equity Interests thereof to the extent permitted pursuant to another clause of this definition and (B) so long as no Default or Event of Default has occurred and is continuing or would result therefrom at the time of such Investment, additional Investments made in the ordinary course of business by any Loan Party in an aggregate amount not to exceed One Million Dollars ($1,000,000) at any time outstanding (“Permitted Intercompany Investments”); provided that (x) any Investments made after the Closing Date in or by Airspan Networks (Beijing) Co. Ltd (“Airspan China”) shall not be Permitted Intercompany Investments pursuant to this clause (v) and (y) if incurred pursuant to another clause of this definition, Airspan China must become a party to the Intercompany Subordination Agreement prior to giving effect to such Investment;

 

(vi) Investments existing on the First Restatement Effective Date set forth on Schedule 7.05, but not any additional Investment in respect thereof unless otherwise independently permitted under another clause of this definition;

 

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(vii) (a) loans and advances to employees of Holdings and its Subsidiaries consisting of travel advances and employee relocation loans and other employee loans and advances in the ordinary course of business, and (b) loans to employees, officers or directors the proceeds of which are used for the purchase of equity securities of the Loan Parties pursuant to employee stock purchase plan agreements approved by the Board of Directors of the Loan Parties in an aggregate amount not to exceed One Hundred Thousand Dollars ($100,000);

 

(viii) Investments made in connection with dispositions permitted by Section 7.01;

 

(ix) Investments consisting of deposit accounts in which the Secured Parties have a perfected security interest to the extent required hereunder;

 

(x) To the extent constituting Investments, the Transactions including the assignment of the Assigned Patent Rights by the Loan Parties (other than IP Hold-Co) in favor of IP Hold-Co pursuant to the terms of the Patent Assignment Agreement and the execution of the Patent Licenses Agreement;

 

(xi) Investments acquired in the ordinary course of business consisting of interest rate, currency or commodity swap agreement, interest rate cap or collar agreements or arrangements designed to protect a Person against fluctuations in interest rates, currency exchange rates or commodity prices, in a total amount not to exceed One Million Dollars ($1,000,000) in any fiscal year; and

 

(xii) other Investments in an aggregate amount not to exceed Five Million Dollars ($5,000,000) per annum; so long as (i) no Default or Event of Default has occurred and is continuing either immediately before or after giving effect to such Investment and (ii) on or prior to such Investment, the Borrower delivers a certificate to the Administrative Agent (in form and substance satisfactory to the Administrative Agent) certifying that the following conditions have been satisfied and attaching supporting evidence demonstrating pro forma compliance with each of the financial covenants set forth in Section 7.16 both (x) as of the date of such Investment and (y) pro forma for the six (6) month period thereafter (in each case, calculated based on the most recent financial statements delivered to Administrative Agent pursuant to Section 6.02, but giving pro forma effect to the Investment).

 

Permitted Liens” means:

 

(i) Liens in favor of Collateral Agent for the benefit of the Secured Parties granted to secure the Obligations (including for the avoidance of doubt any Liens assigned to the Agent pursuant to the terms of the Resignation Agreement and the Foreign Security Documents referred to therein); provided that all such Liens shall be subject to the terms of the Pari Passu Intercreditor Agreement;

 

(ii) non-exclusive licenses of software to customers for use with purchased products, and non-exclusive licenses to patents and trademarks to manufacturers and other vendors to allow them to manufacture and supply to Holdings and its Subsidiaries portions or all of one or more of their products and other intellectual property rights, in each case granted by Holdings or any of its Subsidiaries in the ordinary course of business and not adversely affecting the value of the Collateral or interfering in any respect with the ordinary conduct of the business of Holdings or such Subsidiary or the rights and remedies of the Secured Parties under the Loan Documents;

 

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(iii) Liens for taxes, fees, assessments or other government charges or levies, either (a) not due and payable or (b) that are being contested in good faith by appropriate proceedings diligently conducted and for which Holdings and/or its Subsidiaries maintains adequate reserves on its books in conformity with GAAP or IFRS, as applicable; provided that no notice of any such Lien has been filed or recorded under the Code (or equivalent);

 

(iv) Liens incurred in the ordinary course of business in order to secure payment of workers’ compensation, unemployment insurance, old-age pensions and other types of social security;

 

(v) any interest or title of a lessor or sublessor under any lease or sublease granted in the ordinary course of Holdings’ and its Subsidiaries’ business, including in connection with the lease or sublease of premises or of tangible real property granted in the ordinary course of business;

 

(vi) the Patent License Agreement;

 

(vii) Liens arising from attachments or judgments, orders, or decrees in circumstances not constituting an Event of Default under Section 8.01(j);

 

(viii) deposits to secure the performance of bids, tenders, trade contracts (other than for borrowed money), leases, government contracts, bank obligations, statutory obligations, surety, stay, customs and appeal bonds, performance and return of money bonds and other obligations of a like nature incurred in the ordinary course of business;

 

(ix) easements, rights-of-way, restrictions (including zoning restrictions), covenants, licenses, encroachments, protrusions and other similar charges or encumbrances or minor title deficiencies incurred in the ordinary course of business that, in the aggregate, are not substantial in amount and that do not in any case detract from the value of the property subject thereto or materially interfere with the ordinary course of business;

 

(x) deposits (other than in respect of borrowed money) made in the ordinary course of business to in connection with workers compensation, unemployment insurance, social security and other like laws or to secure the performance of statutory obligations;

 

(xi) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of custom duties in connection with the importation of goods in the ordinary course of business;

 

(xii) Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into in the ordinary course of business;

 

(xiii) statutory Liens of landlords, banks (and rights of set-off), of carriers, warehousemen, mechanics, repairmen, workmen and materialmen, and other Liens imposed by law (other than any such Lien imposed pursuant to Section 430(k) of the Internal Revenue Code or by ERISA), in each case incurred in the ordinary course of business (i) for amounts not yet overdue, or (ii) for amounts that are overdue and that (in the case of any such amounts overdue for a period in excess of five (5) days) are being contested in good faith by appropriate proceedings, so long as such reserves or other appropriate provisions, if any, as shall be required by GAAP shall have been made for any such contested amounts;

 

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(xiv) the filing of UCC financing statements (or equivalents) solely as a precautionary measure in connection with operating leases or consignment of goods in the ordinary course of business;

 

(xv) Liens existing as of the First Restatement Effective Date listed on Schedule 7.04 and Liens to secure any Permitted Refinancing of the Indebtedness with respect thereto; provided, that each Loan Party hereby agrees and acknowledges on its own behalf and on behalf of its Subsidiaries that any Liens in favor of such Loan Party or Subsidiary on the assets of any other Loan Party or Subsidiary shall be deemed to be subordinated to the Liens granted to the Agents, for the benefit of the Secured Parties, to secure the Obligations hereunder and under the Loan Documents;

 

(xvi) purchase money security interests in specific items of Equipment and Liens to secure any Indebtedness permitted under clause (ix) of the definition of Permitted Indebtedness and Permitted Refinancing with respect thereto; provided that such Lien on the Indebtedness secured thereby does not exceed the cost of acquisition of the applicable assets, and such Liens shall attach only to the assets acquired, improved or refinanced with such Indebtedness and shall not extend to any other property or assets of the Loan Parties or their Subsidiaries;

 

(xvii) Liens securing the Priority Lien Obligations permitted by clause (xvi) of the definition of Permitted Indebtedness and any Permitted Refinancing Indebtedness in respect thereof; provided that (A) such Liens are subject to the Pari Passu Intercreditor Agreement and (B) such Indebtedness has the benefit of the same guarantees and the same Collateral as the Loan Obligations hereunder and such Liens do not secure Indebtedness on a Priority Lien basis in excess of the Maximum Note Obligations (it being understood that any Liens permitted pursuant to this clause must be pari passu or junior to the Liens granted in connection with the Loan Documents);

 

(xviii) [Reserved];

 

(xix) pledges of cash in existence as of the Closing Date (including the Liens described in the Pacific Western Fee Letter in respect of the Cash Pledge Agreements described therein), to secure obligations in connection with existing letters of credit for the account of the Borrower and its Subsidiaries, which shall not at any time exceed an aggregate amount of One Million Dollars ($1,000,000) for Holdings and its Subsidiaries collectively;

 

(xx) Liens securing Indebtedness permitted under clause (xv) of the definition of Permitted Indebtedness, so long as such Liens encumber only Holdings’ or a Subsidiary’s interest in proceeds of the insurance policies financed with such Permitted Indebtedness and do not impair any rights of any Agent or Secured Party as a loss payee or additional insured thereunder;

 

(xxi) [Reserved];

 

(xxii) Liens granted by Airspan Communications Limited or any other Affiliate of Airspan Communications Limited on five percent (5%) of the Equity Interest in Dense Air Holdco (or any Subsidiary of Dense Air Holdco) as may be required pursuant to the terms of the Softbank Loan Documents (as the same may have been amended, amended and restated, supplemented or otherwise modified from time to time);

 

(xxiii) to the extent constituting Liens, Liens on the Equity Interests of Holdings reserved for the issuance of Qualified Equity Interests for the prepayment, purchase, redemption, defeasance, or other acquisition or retirement of the Convertible Notes in exchange for Qualified Equity Interests in accordance with the terms thereof;

 

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(xxiv) to the extent constituting Liens, prior to the consummation of the Divestiture Transaction, the conditional sale terms of the Mimosa Purchase Agreement as in effect on March 8, 2023 and as may be amended with the prior written consent of the Administrative Agent in its sole discretion (which may be by email); and

 

(xxv) other Liens on assets other than the Collateral and other than the types listed in clause (i) through (xxiv) of this definition of “Permitted Liens” securing Indebtedness in an aggregate amount not to exceed Five Hundred Thousand Dollars ($500,000) at any time outstanding.

 

Permitted Refinancing” is defined in the definition of “Permitted Indebtedness.”

 

Person” means any individual, sole proprietorship, partnership, limited liability company, joint venture, company, trust, unincorporated organization, association, corporation, institution, public benefit corporation, firm, joint stock company, estate, entity or government agency.

 

Personal Information” refers to data that, separately or when combined with other data, can be used to identify an individual person, such as name, address, email address, photograph, internet protocol address, and unique device identifier.

 

PIK Interest” means interest on the Loan Obligations due on any Interest Payment Date, which, at the election of Borrower is paid in kind by increasing the principal amount of the outstanding Loans.

 

Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA) established by any Loan Party or, with respect to any such plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate.

 

Post-Closing Obligations” is defined in Section 6.28.

 

Post Restatement Obligations” is defined in Section 6.26.

 

Prepayment Event” means the occurrence of any of the following events prior to the applicable Loan’s Stated Maturity Date: (a) any of the principal balance of the applicable Loans is refinanced, repaid, prepaid (including, without limitation, pursuant to Section 2.01(e)) or replaced or modified by operation of law or reduced for any reason, and/or the Delayed Draw Term Loan Commitments are permanently reduced or terminated (in each case whether before or after the occurrence of an Event of Default or the commencement of any proceeding under Debtor Relief Laws), (b) any Loans are satisfied as a result of a foreclosure sale, deed in lieu or by any other means, (c) the relevant Loan Obligations are accelerated in accordance with Article VIII or by operation of law (including, without limitation, as a result of any proceeding under Debtor Relief Laws), (d) an Event of Default has occurred and is continuing under Section 8.01(h) or (i), (e) there is a foreclosure or enforcement of any Lien on the Collateral pursuant to the Loan Documents, (f) there is a sale of the Collateral in any proceeding under Debtor Relief Laws (whether or not such sale constitutes an Asset Disposition) or (g) there is a restructure, reorganization, or compromise of the Obligations by the confirmation of a plan of reorganization or any other plan of compromise, restructure or arrangement in any proceeding under Debtor Relief Laws. Solely for purposes of calculating the Applicable Prepayment Premium, if a Prepayment Event occurs under clause (c), (d), (e) or (f) of the immediately-preceding sentence, the entire then-outstanding principal amount of the Loans shall be deemed to have been voluntarily prepaid on the date on which such Prepayment Event occurs (notwithstanding the acceleration of such Obligations, the occurrence of the Maturity Date, and/or the lack of an actual voluntary prepayment by the Loan Parties).

 

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Prime Rate” means the rate last quoted by The Wall Street Journal as the “Prime Rate” in the United States or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as reasonably determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as reasonably determined by the Administrative Agent).

 

Principal Office” means Administrative Agent’s “Principal Office” as set forth on Appendix B, or such other office or office of a third party or sub-agent, as appropriate, as such Person may from time to time designate in writing to Borrower, the Agents and each Lender.

 

Priority Lien” means a Lien granted, or purported to be granted, by a Collateral Document to the Collateral Agent, at any time, upon any property of the Loan Parties and/or their Subsidiaries to secure Priority Lien Obligations.

 

Priority Lien Collateral Documents” means each Collateral Document creating (or purporting to create) a Lien upon Collateral of the Loan Parties and their Subsidiaries in favor of the Collateral Agent, for the benefit of any of the Secured Parties, in each case, as amended, modified, renewed, restated or replaced, in whole or in part, from time to time, in accordance with its terms and the provisions of the Loan Documents and the related Pari Passu Intercreditor Agreement.

 

Priority Lien Debt” means:

 

(1) the Loan Obligations;

 

(2) the Funded Debt evidenced by the Note Purchase Documents up to the Maximum Note Obligations and provided that such Funded Debt and Priority Liens are to be incurred pursuant to the terms of the Pari Passu Intercreditor Agreement; and

 

(3) any Funded Debt that is permitted to be incurred and permitted to be secured by a Priority Lien under each applicable Priority Lien Document; provided, that, in the case of this clause (3), all relevant requirements set forth in the Loan Documents and the related Pari Passu Intercreditor Agreement are complied with.

 

Priority Lien Documents” means, collectively, the Note Purchase Documents, the Loan Documents and any other indenture, credit agreement or other agreement pursuant to which any Priority Lien Debt is incurred, and the Priority Lien Collateral Documents.

 

Priority Lien Holder” means each of the Lenders and each of the other holders of Priority Lien Obligations.

 

Priority Lien Obligations” means the Priority Lien Debt and all other Obligations in respect of Priority Lien Debt including without limitation any post-petition interest whether or not allowable, together with any guarantees of any of the foregoing.

 

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Priority Lien Representative” means:

 

(1) in the case of the Convertible Notes, the Collateral Agent; and

 

(2) in the case of this Agreement, the Agent.

 

Pro Rata Share” means (a) with respect to all payments, computations and other matters relating to the Initial Term Loan of any Lender, the percentage obtained by dividing (i) the Initial Term Loan Exposure of that Lender, by (ii) the aggregate Initial Term Loan Exposure of all Lenders; (b) with respect to all payments, computations and other matters relating to the Tranche 2 Term Loan of any Lender, the percentage obtained by dividing (i) the Tranche 2 Term Loan Exposure of that Lender, by (ii) the aggregate Tranche 2 Term Loan Exposure of all Lenders, and (c) with respect to all payments, computations and other matters relating to the Delayed Draw Term Loans of any Lender, the percentage obtained by dividing (i) the Delayed Draw Term Loan Exposure of that Lender, by (ii) the aggregate Delayed Draw Term Loan Exposure of all Lenders. For all other purposes with respect to each Lender, “Pro Rata Share” means the percentage obtained by dividing (A) an amount equal to the sum of the Initial Term Loan Exposure, the Tranche 2 Term Loan Exposure, and the Delayed Draw Term Loan Exposure, by (B) an amount equal to the sum of the aggregate Delayed Draw Term Loan Exposure of all Lenders.

 

Process Agent” is defined in Section 12.05.

 

Product” means and any current or future product developed, manufactured, licensed, marketed, sold or otherwise commercialized by Holdings or any of its Subsidiaries, including any such product in development or which may be developed.

 

Product Agreement” means each agreement, license, document, instrument, interest (equity or otherwise) or the like under which one (1) or more parties grants or receives any right, title or interest with respect to any Product Development and Commercialization Activities in respect of one (1) or more Products specified therein or to exclude third parties from engaging in, or otherwise restricting any right, title or interest as to any Product Development and Commercialization Activities with respect thereto, including each contract or agreement with suppliers, manufacturers, distributors, or any other Person related to any such entity.

 

Product Authorizations” means any and all approvals, including applicable supplements, amendments, pre- and post-approvals, clearances, licenses, notifications, registrations, certifications or authorizations of any Governmental Authority, any Standard Body necessary for the manufacture, development, distribution, use storage, import, export, transport, promotion, marketing, sale or other commercialization of a Product in any country or jurisdiction.

 

Product Development and Commercialization Activities” means, with respect to the Product, any combination of research, development, manufacture, import, use, sale, go-to market plans, the development of customer and revenue projections, financing plans pricing strategy, product positioning, board-approved operating budgets, Product Authorizations, supply, distribution, testing, packaging, purchasing or other commercialization activities, receipt of payment or financing in respect of any of the foregoing, or like activities and plan (each in form and substance satisfactory the Administrative Agents and the Lenders), the purpose of which is to commercially exploit such Product.

 

PWB” means Pacific Western Bank.

 

QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. § 5390(c)(8)(D).

 

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QFC Credit Support” is defined in Section 13.25(a).

 

Qualified Equity Interests” means any Equity Interests that are not Disqualified Equity Interests.

 

Reaffirmation and Omnibus Amendment Agreement” means that certain Reaffirmation and Omnibus Amendment Agreement dated as of December 30, 2020, by and among the Borrower, the Guarantors listed on the signature pages thereto, the Lenders party thereto, and the Agents which, among other things, amended and restated the Original Credit Agreement and replaced it with the Existing Credit Agreement and the Security Agreement.

 

Real Estate Asset” means, at any time of determination, any interest (fee, leasehold or otherwise) then owned by any Loan Party in any real property.

 

Recipient” means each Agent and any Lender and any other recipient of any payment by or on account of any Obligation of any Loan Party under any Loan Document.

 

Reciprocal License” means any license associated with what is commonly known as “open source” software license terms including licenses that require as a condition of use, modification, distribution of, or linking to, such software subject to such license, that such software or other Intellectual Property relating to or combined with, distributed with, and/or linked to, such software be: (a) disclosed or distributed in source code form; (b) licensed for the purpose of making derivative works; or (c) redistributable at no charge.

 

Refinancing” is defined in the definition of “Permitted Indebtedness.”

 

Register” is defined in Section 13.01(c).

 

Regulation” is defined in Section 5.29.

 

Regulatory Agencies” means any Governmental Authority that is concerned with the use, control, safety, efficacy, reliability, manufacturing, marketing, distribution, sale or other Product Development and Commercialization Activities relating to any Product or the business of the Loan Parties, including without limitation the FCC, and all similar agencies or Governmental Authorities in any applicable jurisdictions.

 

Regulatory Permit” means all approvals, clearances, notifications, authorizations, orders, exemptions, registrations, certifications, licenses and permits granted by, submitted to, required by, or filed with any Regulatory Agencies related to the Assigned Patents, the Products or Product Development and Commercialization Activities, including all Product Authorizations.

 

Reinvestment Period” is defined in Section 2.01(e)(i)(B).

 

Related Fund” means, with respect to any Lender that is an investment fund, any other investment fund that invests in commercial loans and that is managed or advised by the same investment advisor as such Lender or by an Affiliate of such investment advisor.

 

Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors, representatives investors and potential investors of such Person and of such Person’s Affiliates.

 

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Release” means any release, spill, emission, leaking, pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping, leaching or migration of any Hazardous Material into the indoor or outdoor environment (including the abandonment or disposal of any barrels, containers or other closed receptacles containing any Hazardous Material), including the movement of any Hazardous Material through the air, soil, surface water or groundwater.

 

Relevant Governmental Body” means the Federal Reserve Board or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board or the Federal Reserve Bank of New York, or any successor thereto.

 

Relevant Jurisdiction” means in relation to a Loan Party or any of its Subsidiaries (as applicable):

 

(a) its jurisdiction of incorporation;

 

(b) the jurisdiction whose laws govern the perfection of any Collateral or Security Document (as applicable) entered into by it; and

 

(c) any jurisdiction where it conducts its business.

 

Relevant Party” is defined in Section 2.03(g)(ii).

 

Remedial Action” means any action (a) to correct or address any actual, alleged or threatened non-compliance with any applicable Environmental Law or Environmental Permit, or (b) to clean up, remove, remediate, contain, treat, monitor, assess, evaluate, investigate, prevent, minimize or in any other way address any environmental condition or the presence, Release or threatened Release of any Hazardous Material (including the performance of pre-remedial studies and investigations and post-remedial operation and maintenance activities).

 

Replacement Lender” is defined in Section 2.09(b).

 

Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30 day notice period has been waived.

 

Requisite Lenders” means one (1) or more Lenders having or holding Initial Term Loan Exposure, Tranche 2 Term Loan Exposure, and Delayed Draw Term Loan Exposure and representing more than fifty percent (50%) of the sum of (a) the aggregate Initial Term Loan Exposure of all Lenders, (b) the aggregate Tranche 2 Term Loan Exposure, and (c) the aggregate Delayed Draw Term Loan Exposure of all Lenders; provided if there is more than one Lender (Lenders that are Affiliates of one another shall be deemed to be one Lender for purposes hereof), then any vote or other action requiring the Requisite Lenders must include Fortress for so long as Fortress holds any Initial Term Loan Exposure, Tranche 2 Term Loan Exposure, or Delayed Draw Term Loan Exposure hereunder.

 

Resignation Agreement” has the meaning assigned to such term in the Reaffirmation and Omnibus Amendment Agreement.

 

Responsible Officer” means any of the Chief Executive Officer, or Chief Financial Officer of Borrower or, as applicable, the equivalent officer of another Loan Party.

 

Sanctions” is defined in Section 5.22(b)(iv).

 

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Scheduled Debt Service” means, for any period, with respect to any Person, the amount of all payments of principal of and interest on all Indebtedness of such Person (other than with respect to the Loan Parties, the Loan Obligations under the Loan Documents) paid or payable by such Person on a regularly scheduled payment date during such period.

 

SEC” means the Securities and Exchange Commission, any successor thereto, and any analogous Governmental Authority in the country of organization of a Foreign Subsidiary.

 

Second Restatement” is defined in the recitals.

 

Second Restatement Effective Date” means the “Effective Date”, as such term is defined in the Second Restatement.

 

Second Restatement Fee” is defined in Section 2.02(b)(i)(E).

 

Second Restatement Origination Fee” is defined in Section 2.02(b)(i)(C).

 

Second Restatement Outstanding Amount” is defined in Section 2.02(b)(i)(D).

 

Secured Parties” means (a) the Lenders, (b) the holders of the Convertible Notes, (c) the Agents, (d) any Receiver or Delegate (each as defined in the Security Trust Deed), (e) the beneficiaries of each indemnification obligation undertaken by any Loan Party under any Loan Document or Note Purchase Document (including, without limitation, the Collateral Agent (as defined in the Note Purchase Agreement)) and (f) the successors and assigns of each of the foregoing.

 

Securities Account” means any “securities account” within the meaning of Article 8 of the UCC (or equivalent).

 

Securitization” is defined in Section 13.17.

 

Securitization Parties” is defined in Section 13.17.

 

Security Agreement” means the Existing Security Agreement as amended and restated by that certain Amended and Restated Security Agreement dated as of the First Restatement Effective Date by, among others, the Loan Parties and the Collateral Agent, acting on its own behalf and on behalf of the other Secured Parties, as the same may be amended, restated, amended and restated, supplemented, or otherwise modified from time to time in accordance with the terms hereof and thereof.

 

Security Documents” means the Security Agreement, the UK Security Documents, any IP Security Agreement, the Israeli Security Documents, the Japanese Security Documents and all other security documents delivered after the Closing Date by the Loan Parties to the Collateral Agent for the benefit of the Secured Parties granting a Lien on their respective assets to secure any of the Obligations or to secure any guarantee of any such Obligations.

 

Security Trust Deed” means the security trust deed dated as of the Closing Date appointing the Collateral Agent as trustee for the Secured Parties.

 

Series H Investment” means the purchase of up to $20,000,046 of Series H Preferred Stock on the terms and subject to the conditions set forth in the Series H Investment Documents.

 

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Series H Investment Documents” means the Preferred Stock Purchase Agreement, dated on or about December 14, 2020, by and among Borrower and the other parties named therein, and the Second Amended and Restated Investors’ Rights Agreement, dated as of the December 14, 2020, by and among the Borrower and the other parties named therein.

 

SOFR” means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.

 

SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).

 

SOFR Borrowing” means, as to any Borrowing, the SOFR Loans comprising such Borrowing.

 

SOFR Loan” means a Loan that bears interest at a rate based on Adjusted Term SOFR, other than pursuant to clause (c) of the definition of “Base Rate”.

 

SoftBank” means Softbank Group Corp.

 

Softbank Group” means any Person controlling, controlled by or under common control with SoftBank and/or any other direct owner of FIG, that is not also controlled by FIG (for purposes of this definition, “control” means the power, through ownership of securities, contract or otherwise, to direct the policies of the applicable person or entity).

 

Softbank Loan Agreement” means that certain Term Loan Agreement dated as of February 9, 2016 between Borrower and Softbank Group International Limited (as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms hereof and the Softbank Subordination Agreement).

 

Softbank Loan Documents” means the “Loan Documents” as defined in the Softbank Loan Agreement as in effect on the Closing Date and as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms hereof and the Softbank Subordination Agreement.

 

Softbank Subordination Agreement” means that certain Intercreditor and Subordination Agreement dated as of the Closing Date (as amended on the Closing Date and as the same may be further amended, amended and restated, supplemented or otherwise modified from time to time, including by the supplement dated as of the First Restatement Effective Date) by, among others, Softbank Group Capital Limited, as subordinated agent, and the Agent, as senior agent, on behalf and for the benefit of the Secured Parties which subordinates the Indebtedness evidenced by the Softbank Loan Documents or on terms satisfactory to the Agent.

 

Solvency Certificate” means the solvency certificate in the form attached hereto as Exhibit L.

 

Solvent” means, with respect to any Person on any date of determination, that on such date (a) the fair value of the property of such Person is greater than the total amount of liabilities, including contingent liabilities, of such Person, (b) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature, (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute an unreasonably small capital, and (e) such Person is able to pay its debts and liabilities, contingent obligations and other commitments as they mature in the ordinary course of business. The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

 

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SPAC” means a newly formed special purpose acquisition entity, which (i) has been formed with the purpose of raising capital, (ii) has completed an initial public offering resulting in the Equity Interests of such entity being listed on a United States national securities exchange, and (iii) does not conduct any material business or maintain any material assets other than cash.

 

SPAC Transaction” means an acquisition, merger or other business combination between Borrower and a SPAC, provided that (i) the surviving entity shall be Borrower, (ii) the transaction shall result in Borrower or a class or series of Borrower’s Equity Interests being listed on a United States national securities exchange, and (iii) Borrower shall have provided twenty (20) Business Days prior written notice of the transaction to Administrative Agent, and the Administrative Agent shall have received copies of the material documents entered into to effect the SPAC Transaction, as Administrative Agent or any Lender may reasonably request, together with any documents that Administrative Agent or any Lender may reasonably request to maintain Agent’s security interest and other rights with respect to Loan Parties and the Collateral pursuant to this Agreement, including the right of the Administrative Agent and the Lenders to consent to any such Business Combination.

 

Specified Fees” means, collectively, the End of Term Fee, the Third Amendment Fee, the Waiver Fee, the Second Restatement Fee, the Administration Fee and the Origination Fees.

 

Specified Immaterial Foreign Subsidiary” means Airspan Solutions Limited, a company organized under the laws of Israel, for so long as Airspan Solutions Limited remains an inactive Subsidiary of Holdings that does not hold any assets, conduct any business operations, generate any revenue or carry Indebtedness, or make Investments.

 

Specified Person” is defined in the definition of “Affiliate.”

 

Specified Recipient” is defined in Section 2.03(g)(ii).

 

Standard Bodies” means any of the organizations that create, sponsor or maintain safety, quality or other standards or licenses for the Products, including without limitation the FCC and OnCom.

 

Stated Maturity Date” means December 30, 2024.

 

Subordinated Indebtedness” means, with respect to the Obligations, any unsecured Indebtedness of Loan Parties which is issued prior to the consummation of the subject financing and is contractually subordinated to the Obligations (including, in the case of a Guarantor, Obligations of such Guarantor under its Guaranty), on terms and conditions and subject to a subordination agreement acceptable to the Administrative Agent (acting at the direction of the Requisite Lenders acting reasonably).

 

Subordination Agreement” shall mean each of (i) the Intercompany Subordination Agreement, (ii) the Softbank Subordination Agreement, (iii) the Golden Wayford Subordination Agreement and (iv) each other subordination agreement or other evidence of subordination of Indebtedness of Holdings and its Subsidiaries entered into from time to time; provided that each such agreement is in form and substance satisfactory to the Administrative Agent, in each case, such agreements may be amended, restated, amended and restated, supplemented or otherwise modified from time to time to the extent permitted in accordance with the terms hereof and the applicable Subordination Agreement.

 

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subsidiary” shall mean, with respect to any Person (herein referred to as the “parent”), any corporation, partnership, limited liability company, unlimited liability company, association or other business entity (a) of which securities or other ownership interests representing more than fifty percent (50%) of the equity or more than fifty percent (50%) of the ordinary voting power or more than fifty percent (50%) of the general partnership interests are, at the time any determination is being made, owned, controlled or held or (b) that is, at the time any determination is made, otherwise controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent. For the purposes of this definition, “controlled”, as applied to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of the specified Person, whether through the ownership of voting securities or by contract or otherwise.

 

Subsidiary” shall mean any subsidiary of Holdings and shall in any event include any other Person whose revenues and expenses are included in the consolidated financial statements of the Loan Parties, but unless specified otherwise shall not be a reference to and shall not include Dense Air Limited, Dense Air Holdco or any of their subsidiaries.

 

Subsidiary Accession Requirements” means the execution and delivery of a joinder to this Agreement as a Guarantor and all other actions required to provide a First Priority Lien on and security interest in the Equity Interests of each such Subsidiary and its assets substantially similar in scope and granting and perfecting in the same types and classes of assets as the Liens granted by the existing Loan Parties in the existing Asset Security Jurisdictions under the existing Collateral Documents by executing and delivering to Collateral Agent for the benefit of the Secured Parties such guarantees and share charges or pledges (as applicable) over Equity Interests and other asset security of the same types entered into by the existing Asset Security Provider either by delivering a supplement or joinder to the existing Collateral Documents where possible or entering into new Collateral Documents to create and perfect the Collateral Agent’s Liens over all of such Persons assets of each such type or category of assets and if at the time of accession, a particular Person does not own assets of a particular category at the time it enters into the Collateral Document(s) in respect of assets of one or more types but a pledge over future assets can be effected by a composite Collateral Document that also secures assets it owns at the time it enters into the Collateral Documents, it will also grant under such composite Collateral Document a Lien on such future classes of assets and entering into such other Collateral Documents as necessary or desirable to perfect, protect or evidence its security interest in the Collateral or as otherwise reasonably requested by the Collateral Agent.

 

Supplier” is defined in Section 2.03(g)(ii).

 

Supported QFC” is defined in Section 13.25(a).

 

Survey” shall mean an American Land Title Association/American Congress of Surveying and Mapping (ALTA/CSM) form of survey (or non-US equivalent) of any Mortgaged Property by a duly licensed land surveyor for which all necessary fees have been paid which is (i) dated (or redated) not earlier than six (6) months prior to the date of delivery unless there shall have occurred within six (6) months prior to such date of delivery any exterior construction on the site of such Mortgaged Property or any easement, right of way or other interest in the Mortgaged Property has been granted or become effective through operation of law or otherwise with respect to such Mortgaged Property which, in either case, can be depicted on a survey, in which events, as applicable, such survey shall be dated (or redated) after the completion of such construction or if such construction shall not have been completed as of such date of delivery, not earlier than twenty (20) days prior to such date of delivery, or after the grant or effectiveness of any such easement, right of way or other interest in the Mortgaged Property, (ii) certified by the surveyor (in a manner reasonably acceptable to the Collateral Agent) to the Collateral Agent and the title company issuing the Mortgage Policies, (iii) complying in all material respects with the minimum detail requirements of the American Land Title Association/American Congress of Surveying and Mapping (ALTA/ACSM) (or non-US equivalent), and (iv) sufficient for the title company to remove all standard survey exceptions from the Mortgage Policies relating to such Mortgaged Property or otherwise reasonably acceptable to the Collateral Agent.

 

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Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees, VAT or other charges of any nature whatsoever imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto, in each case, whether disputed or not.

 

Term Loan Commitments” means the Initial Term Loan Commitments, Tranche 2 Term Loan Commitments and the Delayed Draw Term Loan Commitments.

 

Term SOFR” means,

 

(a) for any calculation with respect to a SOFR Loan, the Term SOFR Reference Rate for a tenor comparable to the applicable Interest Period on the day (such day, the “Periodic Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to the first day of such Interest Period, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Periodic Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Periodic Term SOFR Determination Day, and

 

(b) for any calculation with respect to a Base Rate Loan on any day, the Term SOFR Reference Rate for a tenor of one month on the day (such day, the “Base Rate Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to such day, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Base Rate Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Base Rate Term SOFR Determination Day; provided, further, that if Term SOFR determined as provided above (including pursuant to the proviso under clause (a) or clause (b) above) shall ever be less than the Floor, then Term SOFR shall be deemed to be the Floor.

 

Term SOFR Adjustment” means, for any calculation with respect to an Base Rate Loan or a SOFR Loan, a percentage per annum as set forth below for the applicable Type of such Loan and (if applicable) Interest Period therefor:

 

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Base Rate Loans:

 

0.10%

 

SOFR Loans:

 

Interest Period Percentage
One month 0.10%
Three months 0.10%

 

Term SOFR Administrator” means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the Administrative Agent in its reasonable discretion).

 

Term SOFR Reference Rate” means the forward-looking term rate based on SOFR.

 

Terminated Lender” is defined in Section 2.09(b).

 

Test Period” shall mean, as of any date of determination, (a) the period of three (3) consecutive months (taken as one accounting period) of Holdings (i) most recently ended on or prior to such date for which financial statements have been or are required to be delivered pursuant to Section 6.02(a) or Section 6.02(b) or (ii) in the case of any calculation pursuant to Section 7.16, ended on the last date of the fiscal quarter in question, and (b) solely with respect to the calculation of the Net EBITDA Leverage Ratio, the period of twelve (12) consecutive months (taken as one accounting period of Holdings) most recently ended on or prior to such date for which financial statements have been or are required to be delivered pursuant to Section 6.02(a) or Section 6.02(b).

 

Third Amendment” means that certain Third Amendment and Waiver to Credit Agreement and Other Loan Documents, dated as of March 29, 2022, among the Borrower and the other Loan Parties party thereto, the Lenders party thereto and the Administrative Agent.

 

Third Amendment Fee” shall have the meaning assigned to the term “Amendment Fee” as such term is defined in the Third Amendment.

 

Trade Secrets” means all of the following: (a) trade secrets and other proprietary or confidential business information, including inventions, invention disclosures, discoveries, know how, systems, processes, methods, data, business and marketing plans, and customer and vendor lists, (b) all income, royalties, damages and payments now or hereafter due or payable under and with respect thereto, including payments under all licenses entered into in connection therewith and damages and other payments for past or future misappropriation or other violation, and (c) the right to sue for past, present and future misappropriation or other violation thereof.

 

Trademarks” means all of the following: (a) all trademarks, service marks, corporate names, company names, business names, trade names, trade dress, logos, Internet domain names, other source or business identifiers, designs and general intangibles of like nature, all registrations thereof, and all registrations and applications filed in connection therewith in the United States Patent and Trademark Office or any similar offices in any State of the United States or any other country or any political subdivision thereof, and all renewals thereof, (b) all goodwill associated therewith or symbolized thereby, (c) all income, royalties, damages and payments now or hereafter due or payable under and with respect thereto, including payments under all licenses entered into in connection therewith and damages and other payments for past or future infringements or other violations, and (d) the right to sue for past, present and future infringement, dilution or other violation thereof.

 

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Tranche 2 Term Loan” is defined in Section 2.01(a)(i)(A).

 

Tranche 2 Term Loan Commitment” means the commitment of a Lender to make or otherwise fund a Tranche 2 Term Loan. The amount of each Lender’s Tranche 2 Term Loan Commitment as of the Closing Date is set forth on Appendix A or in the applicable Assignment Agreement, subject to any adjustment or reduction pursuant to the terms and conditions hereof. The Tranche 2 Term Loans were fully-advanced on the Closing Date.

 

Tranche 2 Term Loan Exposure” means, with respect to any Lender, as of any date of determination, the outstanding principal amount of the Tranche 2 Term Loan of such Lender.

 

Transaction Documents” means the IP Hold-Co Documents, the Series H Investment Documents, the Warrants and the Note Purchase Documents.

 

Transactions” shall mean, collectively, (a) the transactions that occurred pursuant to the Loan Documents and the Transaction Documents on or about the Closing Date, including (i) the execution and delivery of the Reaffirmation and Omnibus Amendment Agreement and the Transaction Documents and the initial Borrowings hereunder, (ii) the consummation of the Series H Investment, (iii) the issuance of Series H Equity Interests to the initial Lenders, (iv) the assignments and other transactions with respect to the Existing Indebtedness and the Loan Amendment Transactions described in the Reaffirmation and Omnibus Amendment Agreement, this Agreement, (v) the formation of the IP Hold-Co and execution of the IP Hold-Co Documents, including the assignment of the Assigned Patent Rights by the Loan Parties (other than IP Hold-Co) in favor of IP Hold-Co pursuant to the terms of the Patent Assignment Agreement and the execution of the Patent License Agreement, (vi) all other reasonable incidental steps and actions required to facilitate the transactions described in clauses (a)(i) though (a)(v) above; (b) the transactions that occurred pursuant to or as contemplated by the Existing Credit Agreement on or about the First Restatement Effective Date, and (c) the transactions that occurred pursuant to or as contemplated by the Second Restatement on or about the Second Restatement Effective Date, consisting of (i) the execution and delivery of the Second Restatement and the Borrowings of Delayed Draw Term Loans on the Second Restatement Effective Date, (ii) the issuance of Warrants to the Lenders or their designees or affiliates, (iii) all other reasonable incidental steps and actions required to facilitate the transactions described in clauses (c)(i) and (c)(ii) above and (d) the payment of fees and expenses in connection with the foregoing.

 

Transfer” means to sell, exchange, transfer (including any effective transfer of assets by way of division), assign, license, lease, sub-lease, convey hypothecate, pledge or make a gift or dispose of all or any part of any Loan Party’s business, assets or properties of any kind, whether real, personal or mixed and whether tangible or intangible, whether now owned or hereinafter acquired, including the Equity Interests of any Loan Party.

 

Treasury Rate” means, as of any date of voluntary or mandatory prepayment of the Loans, the weekly average yield on actually traded Unites States Treasury securities adjusted to a constant maturity of one year (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) that has become publicly available at least two (2) business days prior to such date (or, if such statistical release is no longer published, any publicly available source of similar market data)).

 

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Type” means a Base Rate Loan or a SOFR Loan.

 

UCC” means the Uniform Commercial Code in effect from time to time in the State of New York, except as such term may be used in connection with the perfection of a security interest in the Collateral, in which case, the Uniform Commercial Code (or similar or equivalent legislation) of the applicable jurisdiction with respect to the affected Collateral shall apply.

 

UK Guarantor” means Airspan Communications Limited, and any other party incorporated and registered under the laws of England and Wales which joins this Agreement pursuant to the terms of Section 6.12(c).

 

UK Security Documents” means (a) the English law governed security agreement in relation to substantially all of the assets of the Airspan Communications Limited dated as of the Closing Date, (b) the English law governed share charge over shares in Airspan Communications Limited by the Initial Borrower, dated as of the Closing Date, (c) the Security Trust Deed, (d) the first supplemental English law governed law security agreement in relation to substantially all of the assets of the Airspan Communications Limited dated as of August 20, 2021, (e) the first supplemental English law governed share charge over shares in Airspan Communications Limited by the Initial Borrower, dated as of August 20, 2021, (f) “UK Security Documents” as defined in the Note Purchase Agreement (g) the second supplemental English law governed law security agreement in relation to substantially all of the assets of the Airspan Communications Limited dated on or about the Second Restatement Effective Date, (h) the second supplemental English law governed share charge over shares in Airspan Communications Limited by the Initial Borrower, dated on or about the Second Restatement Effective Date, and (i) any other English law governed Collateral Documents entered into from time to time.

 

Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.

 

Unfunded Pension Liability” means the excess of a Pension Plan’s benefit liabilities under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets, determined in accordance with the assumptions used for funding the Pension Plan pursuant to Section 412 of the Code for the applicable plan year.

 

Unrestricted Cash” means, on any date of determination, all Cash and Cash Equivalents owned by Holdings and its Loan Party Subsidiaries (or a non-Loan Party Subsidiary that has granted a first priority perfected Lien in such Account and the cash therein subject to the “control” (as defined in the UCC) of the Collateral Agent) and held in any Controlled Account in the United States, the United Kingdom, or otherwise subject to the “control” and a first priority perfected Lien in favor of Collateral Agent, in each case, on the date of determination (excluding, for purposes of clarity, any amounts available to be drawn or funded under lines of credit or other debt facilities, including any revolving loans); provided that amounts included under this definition shall (x) be included only to the extent such amounts are not subject to any consensual Lien or other restriction or encumbrance of any kind (other than Liens in favor of Collateral Agent) and (y) exclude any amounts held by Holdings or any of its Subsidiaries in escrow, trust or other fiduciary capacity for or on behalf of a client, borrower or customer of Holdings, its Subsidiaries or any of their respective Affiliates.

 

U.S. Government Securities Business Day” means any day except for (a) a Saturday, (b) a Sunday or (c) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.

 

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U.S. Person” shall mean any Person that is a “United States person” as defined in Section 7701(a)(30) of the Code.

 

U.S. Special Resolution Regimes” is defined in Section 13.25(a).

 

U.S. Tax Compliance Certificate” is defined in Section 2.03(e)(ii)(B)(3).

 

VAT” means, as applicable (a) any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112); (b) any value added tax imposed by the Value Added Tax Act 1994 (United Kingdom); (c) any other tax of a similar nature, whether imposed in a member state of the European Union or the United Kingdom in substitution for, or levied in addition to, such tax referred to in paragraph (a) or (b) above, or imposed elsewhere; and (d) value added tax as defined in the Israeli Value Added Tax Law, 1975.

 

Waiver Fee” has the meaning assigned to such term in the Fourth Amendment.

 

Warrant” and “Warrants” means, collectively, each of the warrants executed by Holdings on the Second Restatement Effective Date in favor of each of the Lenders holding Delayed Draw Term Loan Commitments on such date (or their respective designees or Affiliates), a form of which is attached as Exhibit N hereto.

 

Withdrawal Liability” means aggregate liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.

 

Withholding Agent” means any Loan Party, the Administrative Agent and any other Person required by applicable Law to withhold or deduct amounts from a payment made by or on account of any Obligation.

 

Section 1.02 Other Interpretative Provisions. With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:

 

(a) The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the context requires otherwise, (a) any definition of or reference to any agreement, instrument or other document (including any Organization Document) shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein or in any other Loan Document); (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns; (c) the words “hereto”, “herein”, “hereof” and “hereunder”, and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision thereof, (d) all references in a Loan Document to Sections, Exhibits and Schedules shall be construed to refer to Sections of, and Exhibits and Schedules to, the Loan Document in which such references appear; (e) any reference to any Law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such Law and any reference to any Law or regulation shall, unless otherwise specified, refer to such Law or regulation as amended, modified or supplemented from time to time; and (f) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible, real and personal, assets and properties, including cash, securities, accounts and contract rights.

 

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(b) Any reference to Debtor Relief Laws, insolvency, bankruptcy, liquidation, receivership, administration, reorganization, dissolution, winding-up, relief of debtors, or similar proceedings hereunder shall also include proceedings under the laws of the jurisdiction in which a company or corporation is incorporated or any jurisdiction in which a company or corporation carries on business, including the seeking of or decision or order relating to: (i) liquidation, winding-up, dissolution, administration or an arrangement (“Hesder”) with creditors, as such terms are understood under the Israeli Companies Law and the Israeli Insolvency Law; (ii) the appointment of a receiver or trustee or other authorized functionary (“baal tafkid”), as such term is understood under the Israeli Insolvency Law; (iii) adjustment, reorganization, freeze order (or other similar remedy), stay of proceedings order (“Ikuv Halichim”) (or other similar remedy), protection from creditors, relief of debtors, an order for commencing proceedings (“Tzav Ptichat Halichim”), an order for financial rehabilitation (“Hafala Leshem Shikum Calcali”) or an order for liquidation (“Tzav Piruk”); or (iv) the recognition of a foreign proceeding with respect to an insolvency of a company (“Hakara be Halich Zar”), as such term is understood under the Israeli Insolvency Law.

 

(c) In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including”; the words “to” and “until” each mean “to but excluding”; and the word “through” means “to and including”. Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.

 

(d) Accounting Terms.

 

(i) Generally. All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement or any other Loan Document shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the Audited Financial Statements, except as otherwise specifically prescribed herein. Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, Indebtedness of the Loan Parties and their Subsidiaries shall be deemed to be carried at one hundred percent (100%) of the outstanding principal amount thereof, and the effects of FASB ASC 825 on financial liabilities shall be disregarded. For the avoidance of doubt, for purposes of Sections 6.02. and 6.03(b), references to the prior periods for financial statements and other items contained in the audited financial statements described in clause (x) of the definition of Audited Financial Statements for such initial periods after the First Restatement Effective Date shall mean references to the comparative data and the prior comparative periods for Borrower and its Subsidiaries until such time as comparable financial statements and information for Holdings and its Subsidiaries are available for the purposes of providing comparative data and information for use in such comparisons.

 

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(ii) Changes in GAAP. If at any time any change in GAAP or IFRS, as applicable (an “Accounting Change”), would affect the computation of any financial ratio or requirement set forth in any Loan Document, the Administrative Agent, on behalf of the Lenders, and the Loan Parties shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such Accounting Change; provided that, until so amended (i) such ratio or requirement shall continue to be computed in accordance with GAAP or IFRS, as applicable, prior to such change therein and (ii) the Borrower, or as the context may require, Holdings shall provide to the Administrative Agent and each Lender financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such Accounting Change. The Loan Parties and Secured Parties agree that notwithstanding any Accounting Change after the Closing Date, any lease that is or would be treated as an operating lease on the Closing Date shall continue to be treated as an operating lease and shall not constitute Indebtedness for purposes of this Agreement regardless of whether or not such operating lease would be required to be reflected as a liability on the balance sheet of the lessee as a result of such Accounting Change.

 

Section 1.03 Rounding. Any financial ratios required to be maintained by the Loan Parties pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one (1) place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).

 

Section 1.04 Divisions. For all purposes under the Loan Documents, in connection with any division or plan division under Delaware law (or any comparable event under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its Equity Interests at such time.

 

Section 1.05 Cashless Rolls. Notwithstanding anything to the contrary contained in this Agreement or any other Loan Documents, to the extent that any Lender extends the maturity date of, or exchanges, replaces, renews or refinances all or any portion of its then-existing Loans with loans incurred under a new or amended and restated facility or any similar transaction permitted by the terms of this Agreement, in each case, to the extent such extension, replacement, renewal or refinancing is effected by means of a “cashless roll” by such Lender or similar settlement mechanism, such extension, replacement, renewal or refinancing shall be deemed to comply with any requirement hereunder or in any other Loan Document that such payment be made “in Dollars”, “in immediately available funds”, “in cash” or any similar requirement.

 

Section 1.06 Rates. The Administrative Agent does not warrant or accept responsibility for, and shall not have any liability with respect to, (a) the continuation of, administration of, submission of, calculation of or any other matter related to Base Rate, the Term SOFR Reference Rate or Adjusted Term SOFR, or any component definition thereof or rates referred to in the definition thereof, or any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, Base Rate, the Term SOFR Reference Rate, Adjusted Term SOFR or any other Benchmark prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of any Conforming Changes. The Administrative Agent and its affiliates or other related entities may engage in transactions that affect the calculation of Base Rate, the Term SOFR Reference Rate, Adjusted Term SOFR, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower. The Administrative Agent may select information sources or services in its reasonable discretion to ascertain Base Rate, the Term SOFR Reference Rate, Adjusted Term SOFR or any other Benchmark, in each case pursuant to the terms of this Agreement, and shall have no liability to the Borrower, any Lender or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.

 

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Section 1.07 Currencies. Any amount in a currency other than Dollars is to be taken into account at its Dollar equivalent calculated on the basis of: (i) if the amount is to be calculated on the last day of a financial period of Holdings and its Subsidiaries, the relevant rates of exchange used by such Person in, or in connection with, its financial statements for that period; or (ii) otherwise, the spot rate of exchange of an internationally recognized bank selected by the Administrative Agent for this purpose for the purchase of Dollars in the London foreign exchange market with the relevant currency at or about 11.00 a.m. on the day the relevant amount falls to be calculated.

 

Article II
LOANS AND TERMS OF PAYMENT

 

Section 2.01 Term Loans

 

(a) Loans. Loans may be Base Rate Loans or SOFR Loans (and, for the avoidance of doubt, with respect to the Tranche 2 Term Loan, the interest then due shall be payable in kind), as further provided herein.

 

(i) Closing Date Term Loans.

 

(A) Closing Date Term Loan Commitments. Subject to the terms and conditions of this Agreement and the other Loan Documents, and in reliance upon the representations and warranties set forth in this Agreement and the other Loan Documents, certain Lenders made (x) an Initial Term Loan to Borrower on the Closing Date in an amount equal to such Lender’s Initial Term Loan Commitment (the “Initial Term Loan”) and (y) a Tranche 2 Term Loan in an amount equal to such Lender’s Tranche 2 Term Loan Commitment (the “Tranche 2 Term Loan,” and together with the Initial Term Loan, the “Closing Date Term Loans”). Amounts borrowed under this Section 2.01(a)(i) and repaid or prepaid may not be re-borrowed. Subject to Section 2.01(b), Section 2.01(c), and Section 2.01(d) all amounts owed hereunder with respect to the Closing Date Term Loans shall be paid in full no later than the Maturity Date. Upon funding the Closing Date Term Loans on the Closing Date, each Lender’s Initial Term Loan Commitment and Tranche 2 Term Loan Commitment was automatically reduced to zero.

 

(B) Procedure for the Advance of the Closing Date Term Loans. The Closing Date Term Loans were fully-advanced to the Borrower on the Closing Date.

 

(ii) Delayed Draw Term Loans.

 

(A) Delayed Draw Term Loan Commitments. Subject to the terms and conditions of this Agreement and the other Loan Documents, and in reliance upon the representations and warranties set forth in this Agreement and the other Loan Documents, each Lender in its sole discretion may agree to make Delayed Draw Term Loans to Borrower during the Borrowing Period for such Delayed Draw Term Loans in an aggregate amount not exceeding its respective Delayed Draw Term Loan Commitment for such Delayed Draw Term Loans; provided however, no Lender shall be required to make any Delayed Draw Term Loans unless the Borrower has delivered a Notice of Borrowing in accordance with the procedure for set forth in Section 2.01(a)(ii)(B), and such Lender is satisfied that all of the conditions precedent for such Loan set forth in Section 3.02 have been satisfied or waived in writing. Amounts borrowed under this Section 2.01(a)(ii)(A) and repaid or prepaid may not be reborrowed. Subject to Section 2.01(b), Section 2.01(c) and Section 2.01(d), all amounts and other Obligations owed under the Loan Documents with respect to the Delayed Draw Term Loans shall be paid in full not later than the Maturity Date.

 

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(B) Procedure for Advance of Delayed Draw Term Loans.

 

(1) The issuance of Delayed Draw Term Loans on the Second Restatement Effective Date shall be in an aggregate amount equal to Ten Million Dollars ($10,000,000) and thereafter, each issuance of Delayed Draw Term Loans shall be in an aggregate amount equal to Five Million Dollars ($5,000,000) or, if less, the remaining amount of the Delayed Draw Term Loan Commitments. The parties hereby agree that (x) there shall not be more than four (4) borrowings of Delayed Draw Term Loans hereunder and (y) each such funding of Delayed Draw Term Loans shall be subject to the sole discretion of the applicable Lenders advancing such Loans and the satisfaction of the Administrative Agent and such Lenders that each of the applicable Delayed Draw Funding Conditions for such tranche have been satisfied; provided that notwithstanding the foregoing, the fourth (4th) tranche of Delayed Draw Term Loans shall only be available for a Borrowing to the extent the Divestiture Transaction has not closed by July 31, 2023. Notwithstanding anything in this Agreement or any other Loan Document to the contrary, no Delayed Draw Term Loans shall be funded after the Delayed Draw Outside Date.

 

(2) The Borrower shall give the Administrative Agent an initial draft Notice of Borrowing no later than ten (10) Business Days prior to the applicable Credit Date (or such later date as may be agreed by the Administrative Agent) (the “DDTL Notice Date”), requesting that the Lenders make the Loan if Borrower has delivered to the Administrative Agent the information specified in the Delayed Draw Funding Conditions and requesting that the applicable Lenders and the Agent confirm any additional information to be requested pursuant to clause (v) thereof. The Lenders holding Delayed Draw Term Loan Commitments shall have five (5) Business Days from the Applicable DDTL Notice Date to request any additional information necessary for their commitments to make a Delayed Draw Term Loan on the anticipated Credit Date. The Borrower shall then deliver to the Administrative Agent a fully assembled and irrevocable Notice of Borrowing not later than 1:00 p.m. (New York Time) on the date that is five (5) Business Days prior to the anticipated Credit Date (or such later date agreed with the Administrative Agent), and if such Loan is a SOFR Loan, the Borrower shall have also delivered to the Administrative Agent a letter in form and substance reasonably satisfactory to the Administrative Agent indemnifying the applicable Lenders in the manner set forth in Section 2.02(f) of this Agreement. Upon receipt of a duly executed and completed Notice of Borrowing from the Borrower in form and substance satisfactory to the Administrative Agent, the Administrative Agent shall promptly notify each Lender thereof. Not later than 12:00 p.m. (New York time) on the Credit Date; provided that such Lender is satisfied that each of the conditions precedent for such Loan set forth in Section 3.02 have been satisfied or waived in writing, then each such Lender will make available to the Administrative Agent for the account of Borrower, at the Principal Office in immediately available funds, the amount of the Loan to be made by such Lender on such Credit Date. The Borrower hereby irrevocably authorizes the Administrative Agent to disburse the proceeds of the Loans in immediately available funds by wire transfer to such Person or Persons as may be designated by the Borrower in writing.

 

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(3) Upon funding on any Credit Date, each funding Lender’s Delayed Draw Term Loan Commitment for such tranche of Loans so advanced shall automatically be reduced concurrently with, and in the principal amount of, each Delayed Draw Term Loan made by such Lender, and any remaining unfunded Delayed Draw Term Loan Commitments shall automatically terminate on the applicable Delayed Draw Term Loan Commitment Termination Date. Any funded Delayed Draw Term Loan shall be deemed a “Loan” for all purposes of this Agreement. Each Delayed Draw Term Loan shall rank pari passu in right of payment, and shall have the same guarantees as, and be secured by the same Collateral securing, all of the other Obligations hereunder.

 

(b) Scheduled Payments/Principal Repayment.

 

(i) Commencing on the Monthly Amortization Commencement Date and continuing thereafter monthly on each Interest Payment Date (other than any Interest Payment Date that occurs during the Amortization Holiday Period) through and including the Maturity Date, in addition to the payment of cash pay interest as described in Section 2.02, the Borrower shall also make monthly principal payments in respect of the Loans, each such monthly payment in an amount equal to one percent (1%) of the principal amount of the Loans funded (which amount may be readjusted by the Lenders from time to time to give effect to any prepayments of the Loans pursuant to Section 2.01(c), Section 2.01(d) and Section 2.01(e) as applicable and/or the incurrence of the Delayed Draw Term Loans).

 

(ii) Notwithstanding the foregoing, the unpaid principal of the Loans, together with all other accrued and unpaid interest, fees (including the Specified Fees (in the case of any Administration Fee or Origination Fee, to the extent then-earned under this Agreement)), premiums and other amounts owed under the Loan Documents, shall, in any event, be paid in full in cash in immediately available funds no later than the Maturity Date.

 

(iii) The Loans may only be prepaid in accordance with Section 2.01(c), Section 2.01(d), and Section 2.01(e); provided, however, that nothing in this Section 2.01(b)(iii) shall impair the Secured Parties’ right to recover any Applicable Prepayment Premium or Specified Fees if the Obligations are accelerated or otherwise become due prior to the Stated Maturity Date (whether following the occurrence and during the continuation of an Event of Default, by operation of law or otherwise).

 

(c) Mandatory Payment Upon Acceleration. If the Loan Obligations are accelerated (whether or not following the occurrence and during the continuation of an Event of Default, by operation of law or otherwise, and whether or not any proceeding under the Debtor Relief Laws is then pending), the Loan Parties shall immediately pay to the Lenders an amount equal to the sum of (i) all outstanding principal plus accrued and unpaid interest; plus (ii) the Specified Fees (in the case of any Administration Fee and Origination Fees, to the extent then-earned and unpaid); plus (iii) all other sums, if any, that shall have become due and payable, including interest at the Default Rate and, to the extent applicable, any Applicable Prepayment Premium. The parties expressly acknowledge and agree that any End of Term Fee or Applicable Prepayment Premium triggered by this Section 2.01(c) shall be subject to Section 2.01(f) and Section 2.02(b) and shall be due and payable based on the deemed voluntary prepayment (solely for purposes of calculating such End of Term Fee and Applicable Prepayment Premium) of the applicable Obligations notwithstanding the acceleration of such Obligations, the occurrence of the Maturity Date, and/or the lack of an actual voluntary prepayment by the Loan Parties.

 

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(d) Permitted Prepayment of Loans/Commitment Reductions.

 

(i) Voluntary Prepayments. At any time and from time to time, subject to Section 2.01(d)(iii), Section 2.01 (d)(iv), Section 2.01(f) and Section 2.02(b) below, the Borrower shall have the option to prepay all or part of the Loans; provided, that Borrower (x) provides written notice to the Administrative Agent and the Lenders of its election to prepay such Loans at least five (5) Business Days prior to such prepayment (or upon such lesser notice period as the Administrative Agent may permit in its sole discretion), and (y) pays, on the date of such prepayment (A) such outstanding principal plus accrued and unpaid interest for the portion of the Loans specified for prepayment in the written notice provided pursuant to clause (x); (B) the End of Term Fee and each other Specified Fee on the principal portion of the Loans repaid; and (C) all other sums, if any, that shall have become due and payable, including interest at the Default Rate with respect to any past due amounts and any Applicable Prepayment Premium (if any), as further described in Section 2.01(d)(iii), Section 2.01 (d)(iv), Section 2.01(f) and/or Section 2.02(b), below. Each partial prepayment shall be applied ratably across all Classes of the Loans then outstanding pro rata to the remaining principal payments on such Loans.

 

(ii) Voluntary Commitment Reductions.

 

(A) At any time after the first anniversary of the Closing Date, the Borrower may, upon not less than five (5) Business Days’ prior written notice to Administrative Agent (which written notice Administrative Agent will promptly transmit to each applicable Lender), at any time and from time to time terminate in whole or permanently reduce in part any unused portion of the Delayed Draw Term Loan Commitments; provided, any such partial reduction of the Delayed Draw Term Loan Commitments shall be in an aggregate minimum amount of One Million Dollars ($1,000,000) and integral multiples of One Hundred Thousand Dollars ($100,000) in excess of that amount or, if less, the remaining amount of the Delayed Draw Term Loan Commitments.

 

(B) Borrower’s notice to Administrative Agent shall designate the date (which shall be a Business Day) of such termination or reduction and the amount of any partial reduction, and such termination or reduction of the Delayed Draw Term Loan Commitments shall be effective on the date specified in Borrower’s notice and shall reduce the Delayed Draw Term Loan Commitment of each Lender proportionately to its pro rata share of the Type of Delayed Draw Term Loans so reduced.

 

(iii) [Reserved].

 

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(iv) Applicable Prepayment Premium. If a Prepayment Event (other than pursuant to Section 2.01(e)(i)(B) or Section 2.01(e)(i)(D)) occurs after the twelve (12) month anniversary of the Closing Date but on or before the thirty six (36) month anniversary of the Closing Date, the Borrower shall pay to Administrative Agent, for the benefit of all Lenders entitled to a portion of the Affected Principal Amount, a prepayment premium (the “Applicable Prepayment Premium”) on the Affected Principal Amount as follows:

 

Relevant period (number of calendar months elapsed since the Closing Date) Applicable Prepayment Premium as a percentage of the Affected Principal Amount
on or after twelve (12) month anniversary and until the twenty-four (24) month anniversary 5.00%
on or after the twenty-four (24) month anniversary and until the thirty-six (36) month anniversary 3.00%
on or after the thirty-six (36) month anniversary 0.00%

 

(e) Mandatory Prepayment Upon Certain Events.

 

(i) The Borrower shall make a prepayment of the Loans (in each case, without premium or penalty except as otherwise expressly provided in Section 2.01(d)(iii), Section 2.01 (d)(iv), Section 2.01(f), Section 2.02(b) or Section 2.02(f)) upon the occurrence of any of the following at the following times and in the following amounts:

 

(A) Asset Dispositions. Within five (5) Business Days after the receipt by Holdings or any of its Subsidiaries of any Net Cash Proceeds from any Asset Disposition, in an amount equal to one hundred percent (100%) of such Net Cash Proceeds; provided that (x) no such prepayment shall be required unless and until the total aggregate amount of such Net Cash Proceeds received by Holdings and its Subsidiaries in any fiscal year (and not paid to the Administrative Agent as a prepayment of the Loans) exceeds One Hundred Thousand Dollars ($100,000) (and to the extent prepayment is required, the required amount of such prepayment shall only be the Net Cash Proceeds in excess of the amount thereof) and (y) solely with respect to the Divestiture Transaction, the requirement to prepay the Obligations shall not include a requirement to apply the Company Retained Net Cash Proceeds (as defined in the Second Restatement) of such Asset Disposition provided that all Company Retained Net Cash Proceeds are deposited into a Controlled Account.

 

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(B) Insurance/Condemnation Proceeds. Within five (5) Business Days after the receipt by Holdings or any of its Subsidiaries of any Net Cash Proceeds of insurance or condemnations awards, an amount equal to one hundred percent (100%) of such Net Cash Proceeds; provided however, (i) that no such prepayment shall be required unless and until the total aggregate amount of such Net Cash Proceeds received by Holdings and its Subsidiaries in any fiscal year (and not paid to the Administrative Agent as a prepayment of the Loans) exceeds One Hundred Thousand Dollars ($100,000) (and to the extent prepayment is required, the required amount of such prepayment shall only be the Net Cash Proceeds in excess of the amount thereof) and (ii) if the Borrower notifies the Administrative Agent and Lenders of Holdings or any Subsidiary of Holdings’ intent to reinvest such Net Cash Proceeds on or prior to the fifth day after such receipt of Net Cash Proceeds then so long as (x) no Default or Event of Default shall have occurred or be continuing at the time of such notice, at the time of reinvestment or at any time in between (and if any Default or reinvestment is pending, the Net Cash Proceeds will be promptly applied to repay the Loan Obligations) and (y) the proceeds of such insurance or condemnation award are held in a Controlled Account, the Borrower shall have the option, directly or through one or more of the Loan Parties or its Subsidiaries, to use such Net Cash Proceeds to reinvest in similar productive assets of the business, in each case, (x) that are used or useful in the business of Holdings and its Subsidiaries and (y) that comprise Collateral to the extent such property or asset sold or otherwise disposed of was Collateral, within one hundred and eighty (180) days of receipt of such Net Cash Proceeds (subject to, if Holdings or the applicable Subsidiary enters into a binding commitment to reinvest such proceeds not later than the end of such one hundred and eighty (180) day period with the good faith expectation that such proceeds will be applied to satisfy such reinvestment commitment within one hundred eighty (180) days, an extension for a period of up to an additional one hundred eighty (180) days from the end of such one hundred and eighty (180) day period) (the “Reinvestment Period”) Any amounts not previously repaid or reinvested during the Reinvestment Period, must immediately be repaid pursuant to this Section 2.01(e) on the last day of the applicable Reinvestment Period.

 

(C) Issuance of Indebtedness. Substantially concurrently with the receipt by Holdings or any of its Subsidiaries of any Net Cash Proceeds from any issuance of any Indebtedness of Holdings or any of its Subsidiaries (excluding Permitted Indebtedness), including, without limitation, in any proceeding under Debtor Relief Laws, in an amount equal to one hundred percent (100%) of such Net Cash Proceeds.

 

(D) Consolidated Excess Cash Flow. In the event that there shall be Consolidated Excess Cash Flow for any fiscal year of Holdings and its Subsidiaries (commencing with the fiscal year ending December 31, 2021), Borrower shall, no later than the earlier of (i) one hundred and eighty five (185) days after the end of such fiscal year and (ii) five (5) days after the date of delivery by the Borrower of the financial statements described in Section 6.02(a), prepay the Loans and/or the applicable Term Loan Commitments shall be permanently reduced as set forth in Section 2.01(d) in an aggregate amount equal to fifty percent (50%) of such Consolidated Excess Cash Flow. Any amounts prepaid pursuant to this Section 2.01(e) with respect to any Fiscal Year in excess of fifty percent (50%) of Consolidated Excess Cash Flow shall be treated as voluntary prepayments made pursuant to Section 2.01(d).

 

(E) Issuance of Equity Securities. On the date of receipt by Holdings of any cash, Cash Equivalents or other proceeds from any capital contributions to, or issuances or other sales of or transactions with respect to any Equity Interests of Holdings or any of its Subsidiaries resulting in gross proceeds in excess of Seventy-Five Million Dollars ($75,000,000) in the aggregate in any six (6) month period after (but not including) the First Restatement Effective Date other than Equity Interests issued (i) pursuant to any employee stock or stock option compensation plan, or (ii) for purposes approved in writing by Administrative Agent, Borrower shall prepay the Loans and/or the applicable Term Loan Commitments shall be permanently reduced as set forth in Section 2.01(d) in an aggregate amount equal to one hundred percent (100%) of such Net Cash Proceeds. Notwithstanding the foregoing, no prepayment shall be required as a result of (x) the Equity Contribution (as described in the Merger Consent) upon the consummation of the De-SPAC Transaction, or (y) the issuance of Qualified Equity Interests of Holdings in accordance with the terms of the Note Purchase Agreement and the Convertible Notes and the Warrants (in each case as in effect on the date hereof or as amended from time to time to the extent permitted by the Pari Passu Intercreditor Agreement) and the Pari Passu Intercreditor Agreement to purchase, redeem, convert or otherwise exchange the Convertible Notes solely for Qualified Equity Interests of Holdings.

 

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(ii) Prepayments pursuant to Section 2.01(e)(i) shall be applied ratably across all Classes of Loans then outstanding and the portion applied to principal shall be applied to the principal balance of such Loans in inverse order of maturity. For the avoidance of doubt, amounts attributable to payments of interest, End of Term Fees, Specified Fees, and Prepayment Premiums that are due and payable, and other amounts due and payable as a result of such prepayments pursuant to Section 2.01(e)(i) shall be allocated and paid from the amount of the prepayments required to be made pursuant to Section 2.01(e)(i) and shall not be payable in addition to such required prepayment amounts.

 

(iii) Notwithstanding any of the foregoing, any Lender may elect by prior written notice to the Administrative Agent prior to the required prepayment date, to decline all or any portion of any prepayment of its Loans pursuant to this Section 2.01(e) (any such Lender, a “Declining Lender”).

 

(iv) For so long as any Priority Lien Obligations (other than the Loan Obligations) remain outstanding, to the extent that the Loan Parties are required under the other Priority Lien Documents to offer to make a payment of the types described in Section 2.01(d)(i) or Section 2.01(e)(i)(A)-(E) above (a “Pari Passu Payment”), then provided that such payments are required to be made on a pro rata and pari passu basis with the Loan Obligations, the proceeds available for repayment to the Lenders shall equal the Lenders’ allocable share of all such payments then required to be made or offered. In the case that a Declining Lender, or any other Priority Lien Holder that would also be offered or entitled to a Pari Passu Payment, declines its share of such payment (any such amounts, “Declined Proceeds” and any such declining Priority Lien Holder, a “Declining Holder” and all other holders of Priority Lien Obligations, “Non-Declining Holders”), then such Declined Proceeds shall be offered and paid to the Non-Declining Holders in accordance with their pro rata share of the Priority Lien Obligations until all of the remaining Declined Proceeds have been depleted. It being understood that such Declined Proceeds shall be treated in the same manner as the proceeds which required the original payment pursuant to Section 2.01(d)(i) or Section 2.01(e)(i)(A)-(E) above, but for the purposes of determining when such Declined Proceeds are required to be paid by a Loan Party, the date of receipt of such proceeds shall be the first Business Day after the last day that a Declining Holder under any Priority Lien Obligation has the right to decline their share of such proceeds (for example, if a Priority Lien Holder has a right to accept or decline such proceeds of an Asset Disposition for five (5) days under this Agreement and sixty (60) days under other Priority Lien Obligations, then the first day that such Declined Proceeds would be required to be offered to the other non-Declining Holders would be the first Business Day after the sixty (60) day period allowed under the other Priority Lien Obligations). For the avoidance of doubt, nothing in this Section 2.01(e)(iv) shall confer on any Lender the option to elect to decline all or any portion of any voluntary payment of its Loans under Section 2.01(d) of this Agreement.

 

(f) End of Term Fee; Payment of Applicable Prepayment Premiums.

 

(i) Notwithstanding anything herein to the contrary, upon the earliest to occur of: (A) the Maturity Date, (B) payment, repayment, redemption or prepayment or deemed payment, repayment, redemption of prepayment, in each case in full of the principal amount of Loans and other Loan Obligations upon the occurrence of a Prepayment Event, and (C) a termination of this Agreement for any other reason (the occurrence of any of the events set forth in the foregoing clauses (A) through (C), the “End of Term Fee Event”), Borrower shall pay to the Administrative Agent (for further distribution to the Lenders in accordance with their pro rata share of each Class of the Loans and Commitments) as an inducement for making the Loans (and not as a penalty) an amount equal to the End of Term Fee, which End of Term Fee shall be fully earned, and due and payable, on the date of such End of Term Fee Event, and non-refundable when made.

 

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(ii) Notwithstanding anything herein to the contrary, if a Prepayment Event occurs (other than pursuant to Section 2.01(e)(i)(B) or Section 2.01(e)(i)(D)), Borrower shall pay the Lenders as an inducement for making the Loans (and not as a penalty) an amount equal to the Applicable Prepayment Premium (if any) then due and owing, which Applicable Prepayment Premium shall be fully earned, and due and payable, on the date of such Prepayment Event, and non-refundable when made.

 

(iii) Any cancellation, prepayment or repayment, whether voluntary or involuntary, of the Loans upon the occurrence of any End of Term Fee Event or Prepayment Event shall be accompanied by all accrued interest on the principal amount prepaid or repaid, together with the End of Term Fee and/or the Applicable Prepayment Premium, as applicable, and shall be subject to Section 2.02(b). Without limiting the generality of the foregoing, and notwithstanding anything to the contrary in this Agreement or any Loan Documents, it is understood and agreed that if the Loan Obligations are accelerated or otherwise become due prior to the Stated Maturity Date for any reason, including because of an Event of Default or the commencement of any proceeding under Debtor Relief Laws or by operation of law or otherwise, (x) the End of Term Fee will be due and payable as though the aggregate principal amount of all Loans was outstanding as of such date and (y) any Applicable Prepayment Premium will be due and payable as though the aggregate principal amount of all Loans outstanding as of such acceleration or due date were voluntarily prepaid (regardless of whether (a) any Loan Obligations have been accelerated or the Maturity Date has occurred prior to such deemed voluntary prepayment, (b) such deemed voluntary prepayment would be permitted under this Agreement, and/or (c) the Loans are actually voluntarily prepaid by the Loan Parties) as of such acceleration or due date.

 

(iv) Each Loan Party expressly acknowledges and agrees it would be impractical and extremely difficult to ascertain the actual amount of the Lenders’ damages as a result of an End of Term Fee Event or Prepayment Event, and that the End of Term Fee and any Applicable Prepayment Premium payable under this Agreement shall be presumed to be the liquidated damages sustained by each Lender as a result of the applicable End of Term Fee Event and/or Prepayment Event, as applicable.

 

Section 2.02 Interest; Fees; Evidence of Debt; Payments.

 

(a) Interest.

 

(i) (A) Interest Rate. Subject to Section 2.02(a)(i)(C), the outstanding principal balance of each Loan shall bear interest on and after the date so borrowed (or deemed borrowed) at the then Applicable Rate, which interest shall be payable in arrears on and to (i) each Interest Payment Date applicable to that Loan; (ii) upon any prepayment of that Loan, whether voluntary or mandatory, to the extent accrued on the amount being prepaid; and (iii) at maturity, including the final Maturity Date.

 

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(B) PIK Interest. On each Interest Payment Date, unless a Default or Event of Default then exists, the Borrower shall pay (1) with respect to the Initial Term Loan and the Delayed Draw Term Loan, five and one half percent (5.5%) of the interest then due in cash and the remainder of the outstanding interest then due in kind, i.e. by adding such outstanding interest to the aggregate principal amount of the Loans and (2) with respect to the Tranche 2 Term Loan, the interest then due in kind. Interest must be paid in cash for any period for which a Default or Event of Default exists. On any applicable Interest Payment Date each Lender will be entitled to receive an amount equal to their pro rata share of the cash interest then due and owing, as well as any such PIK Interest then due and owing on each Class of Loans held by such Lender.

 

(C) Default Rate. Immediately upon the occurrence of an Event of Default described in Section 8.01(h) or 8.01(i), and in all other cases, upon the election of the Requisite Lenders, upon the occurrence and during the continuation of a Default or Event of Default, the outstanding principal balance of the outstanding Loan Obligations shall bear interest at the Default Rate and shall be payable in cash on demand. Any election made pursuant to this Section 2.02(a)(i) may be made retroactive to the date of the occurrence of the applicable Event of Default.

 

(ii) Interest Computation. All interest hereunder shall be computed on the basis of a year of three-hundred and sixty (360) days, except that interest computed by reference to the Base Rate at times when the Base Rate is based on the Prime Rate shall be computed on the basis of a year of three-hundred and sixty-five (365) days (or three-hundred and sixty-six (366) days in a leap year), and in each case shall be payable for the actual number of days elapsed (including the first (1st) day but excluding the last day). The applicable Base Rate and SOFR shall be determined by the Administrative Agent, and such determination shall be conclusive absent manifest error.

 

(iii) Interest Elections; Borrowings.

 

(A) Each Borrowing initially shall be of the Type specified in the Notice of Borrowing and, in the case of a SOFR Loan, shall have an initial Interest Period as specified in such Notice of Borrowing. Thereafter, the Borrower may elect to convert such Borrowing to a different Type or to continue such Borrowing and, in the case of a SOFR Loan, may elect Interest Periods therefor, all as provided in this Section 2.02(a)(iii). The Borrower may elect different options with respect to different portions of the affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding the Loans comprising such Borrowing.

 

(iv) To make an election pursuant to this Section 2.02(a)(iv), the Borrower shall notify the Administrative Agent of such election by telephone not later than 12 p.m. (New York time), five (5) Business Days before the effective date of the proposed election. Each such telephonic Conversion/Continuation Notice shall be irrevocable and shall be confirmed promptly by hand delivery or facsimile to the Administrative Agent of a written Conversion/Continuation Notice signed by the Borrower.

 

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(v) Each telephonic and written Conversion/Continuation Notice shall specify the following information:

 

(A) the Borrowing to which such Conversion/Continuation Notice applies and, if different options are being elected with respect to different portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant to clauses (C) and (D) below shall be specified for each resulting Borrowing);

 

(B) the effective date of the election made pursuant to such Conversion/Continuation Notice, which shall be a Business Day;

 

(C) whether the resulting Borrowing is to be a Base Rate Loan or a SOFR Loan; and

 

(D) if the resulting Borrowing is a SOFR Loan, the Interest Period to be applicable thereto after giving effect to such election, which shall be a period contemplated by the definition of the term “Interest Period”.

 

If the Borrower fails to deliver a Conversion/Continuation Notice with respect to a SOFR Borrowing prior to the end of the Interest Period therefor, then, unless such SOFR Borrowing is repaid as provided herein, the Borrower shall be deemed to have selected that such SOFR Borrowing shall automatically be continued as a SOFR Borrowing with an Interest Period of one (1) month at the end of such Interest Period.

 

(vi) Promptly following receipt of a Conversion/Continuation Notice, the Administrative Agent shall advise each Lender of the details thereof and of such Lender’s portion of each resulting Borrowing.

 

(vii) Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is continuing and the Administrative Agent, at the request of the Requisite Lenders, so notifies Borrower, then, so long as an Event of Default is continuing (i) no outstanding Borrowing may be converted to or continued as a SOFR Loan and (ii) unless repaid, each SOFR Loan shall be converted to a Base Rate Loan at the end of the Interest Period applicable thereto.

 

(viii) Notwithstanding any other provision of this Agreement, Borrower shall not be entitled to elect to convert or continue any Borrowing if the Interest Period requested with respect thereto would end after the Maturity Date.

 

(ix) In connection with the use or administration of Adjusted Term SOFR, the Administrative Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document. The Administrative Agent will promptly notify the Borrower and the Lenders of the effectiveness of any Conforming Changes in connection with the use or administration of Adjusted Term SOFR.

 

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(b) Fees.

 

(i) The Borrower agrees to pay the following fees:

 

(A) to the Administrative Agent, an administration fee in an amount equal to Fifty Thousand Dollars ($50,000.00) per annum, which fee shall be fully earned, and due and payable, annually in advance on the Closing Date and thereafter on each anniversary of the Closing Date (the “Administration Fee”);

 

(B) to the Administrative Agent for further distribution to the Lenders in accordance with their pro rata share of the Loans so advanced prior to the Second Restatement Effective Date, an origination fee (the “Initial Origination Fee”) in an amount equal to two percent (2.00%) of the amount of the Loans so advanced upon any Credit Date occurring prior to the Second Restatement Effective Date, which fees were fully earned, and due and paid, on the date such Loans were advanced;

 

(C) to the Administrative Agent for further distribution to the applicable Lenders holding Delayed Draw Term Loan Commitments as of the Second Restatement Effective Date in accordance with their pro rata share of such Delayed Draw Term Loan Commitments, an origination fee (the “Second Restatement Origination Fee”) in an amount equal to five percent (5.00%) of the amount of the Delayed Draw Term Loans so advanced upon any Credit Date occurring on or after the Second Restatement Effective Date, which fees shall be fully earned, and due and payable, on the date such Loans are advanced;

 

(D) to the Administrative Agent for further distribution to the Lenders in accordance with their pro rata share of the Loans, each of the Third Amendment Fee and the Waiver Fee; and

 

(E) to the Administrative Agent for further distribution to the Lenders in accordance with their pro rata share of the Loans, a fee (the “Second Restatement Fee”) in an amount equal to $2,157,751.26. The Second Restatement Fee shall be fully earned, and capitalized and added to the principal balance of the Loans, as of the Second Restatement Effective Date.

 

(ii) In addition to the foregoing, the Borrower agrees to pay to the Agents and the Lenders the Specified Fees and any other fees and expense reimbursements set forth in any Fee Letter or other Loan Document or as otherwise separately agreed by the parties, in such amounts and at such times so specified.

 

(iii) The parties hereby agree that the Second Restatement Fee and any similar fee due hereunder shall be added, at the time each such fee is earned, to the principal amount of the applicable Loans and treated as original issue discount.

 

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(iv) Without limiting the generality of the foregoing, and notwithstanding anything to the contrary in this Agreement or any Loan Documents, it is understood and agreed that if the Loan Obligations are accelerated or otherwise become due prior to the Stated Maturity Date for any reason, including because of an Event of Default or the commencement of any proceeding under Debtor Relief Laws or by operation of law or otherwise, the End of Term Fee, the Waiver Fee, the Third Amendment Fee, the Second Restatement Fee and any Applicable Prepayment Premium, if any, along with any then-earned and unpaid Administration Fee and Origination Fees, in each case determined as of such acceleration or due date (and, in the case of any End of Term Fee or Applicable Prepayment Premium, determined as set forth in Section 2.01(f)(iii)), will be due and payable as of such acceleration or due date and shall constitute part of the Loan Obligations, in view of the impracticability and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of each Lender’s loss as a result thereof. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH LOAN PARTY EXPRESSLY WAIVES THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING SPECIFIED FEES OR ANY APPLICABLE PREPAYMENT PREMIUM IN CONNECTION WITH ANY SUCH ACCELERATION INCLUDING IN CONNECTION WITH ANY VOLUNTARY OR INVOLUNTARY ACCELERATION OF THE LOANS AND THE RELATED OBLIGATIONS PURSUANT TO ANY PROCEEDING UNDER ANY DEBTOR RELIEF LAW OR PURSUANT TO A PLAN OF REORGANIZATION. The Specified Fees and the Applicable Prepayment Premium, if any, shall also be payable in the event the Loan Obligations (and/or this Agreement) are satisfied or released by foreclosure (whether by power of judicial proceeding or otherwise), deed in lieu of foreclosure or by any other similar means, or reinstated pursuant to section 1124 of the Bankruptcy Code. THE LOAN PARTIES EXPRESSLY AGREE THAT (I) EACH OF THE SPECIFIED FEES AND ANY APPLICABLE PREPAYMENT PREMIUM IS REASONABLE AND IS THE PRODUCT OF AN ARM’S LENGTH TRANSACTION BETWEEN SOPHISTICATED BUSINESS PEOPLE, ABLY REPRESENTED BY COUNSEL, (II) THE SPECIFIED FEES AND ANY APPLICABLE PREPAYMENT PREMIUM SHALL BE PAYABLE NOTWITHSTANDING THE THEN PREVAILING MARKET RATES AT THE TIME PAYMENT IS MADE, (III) THERE HAS BEEN A COURSE OF CONDUCT BETWEEN THE LENDERS AND THE LOAN PARTIES GIVING SPECIFIC CONSIDERATION IN THIS TRANSACTION FOR SUCH AGREEMENT TO PAY THE SPECIFIED FEES AND ANY APPLICABLE PREPAYMENT PREMIUM, (IV) THE SPECIFIED FEES AND ANY APPLICABLE PREPAYMENT PREMIUM ARE NOT INTENDED TO ACT AS OR CONSTITUTE A PENALTY OR PUNISH BORROWER OR ANY OTHER LOAN PARTY FOR ANY PREPAYMENT OR REPAYMENT, (V) THE LOAN PARTIES’ AGREEMENT TO PAY THE SPECIFIED FEES AND ANY APPLICABLE PREPAYMENT PREMIUM IS A MATERIAL INDUCEMENT TO THE LENDERS TO MAKE THE LOANS, (VI) NO PORTION OF ANY SPECIFIED FEE OR APPLICABLE PREPAYMENT PREMIUM REPRESENTS “UNMATURED INTEREST” WITHIN THE MEANING OF 11 U.S.C. § 502(b), AND (VII) THE LOAN PARTIES SHALL BE ESTOPPED HEREAFTER FROM CLAIMING DIFFERENTLY THAN AS AGREED TO IN THIS SECTION 2.02(b)(iv). Each Loan Party expressly acknowledges that its agreement to pay the Specified Fees and any Applicable Prepayment Premium to the Lenders as herein described is a material inducement to the Lenders to enter into the Credit Agreement, provide the Term Loan Commitments, make the Loans and provide any applicable waiver or other consideration agreed to in connection therewith. Each Loan Party further expressly acknowledges and agrees that, prior to executing the Second Restatement, it has had the opportunity to review, evaluate, and negotiate the Specified Fees and any Applicable Prepayment Premium and the calculations thereof with its advisors, and that the Specified Fees and any Applicable Prepayment Premium are a good faith, reasonable approximation of Lenders’ liquidated damages upon the applicable triggering events, taking into account all of the circumstances, including the costs of funds, the opportunity cost of capital, the relative risk of the investment, and the operational benefits for the Loan Parties from continued use of funds as a result of the Lenders’ agreement to accept the Specified Fees and any Applicable Prepayment Premium in lieu of additional up-front fees.

 

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(v) The Loan Parties agree that, once earned, all of the Specified Fees and other fees described herein or in any other Loan Document or any part thereof payable hereunder will not be refundable under any circumstances and are in addition to any other fees, costs and expenses payable pursuant to the Credit Agreement or the other Loan Documents. Borrower shall reimburse Agent and each such Lender for such costs and expenses as provided in Credit Agreement. Except as expressly provided herein, all such fees will be paid in US dollars and in immediately available funds. All such payments shall be made without setoff, counterclaim or deduction for any taxes, levies, imposts, duties, deductions, charges or withholdings imposed by any national, state or local taxing authority. All or any portion of the fees received by Fortress hereunder may be allocated to any affiliate of Fortress, the Administrative Agent or any other Lender or be shared among Fortress, the Administrative Agent and their respective affiliates.

 

(c) Evidence of Debt; Lenders’ Books and Records; Notes.

 

(i) Lenders’ Evidence of Debt. Each Lender shall maintain on its internal records an account or accounts evidencing the Obligations of Borrower to such Lender, including the amounts of the Loans made by it and each repayment and prepayment in respect thereof. Any such recordation shall be conclusive and binding on the Loan Parties, absent manifest error; provided that the failure to make any such recordation, or any error in such recordation, shall not affect any Lender’s Term Loan Commitments or Borrower’s Obligations in respect of any applicable Loans; and provided further, in the event of any inconsistency between the Register and any Lender’s records, the recordations in the Register shall govern.

 

(ii) Notes. If so requested by any Lender by written notice to Borrower at least two (2) Business Days prior to the Credit Date, or at any time thereafter, Borrower shall execute and deliver to such Lender (and/or, if applicable and if so specified in such notice, to any Person who is an assignee of such Lender pursuant to Section 13.01) on the Credit Date (or, if such notice is delivered after the Credit Date, promptly after Borrower’s receipt of such notice) a Note or Notes to evidence such Lender’s Loans.

 

(d) Payments. Interest on the Loan Obligations shall be payable on each Interest Payment Date provided that (i) interest accrued pursuant to Section 2.02(a)(i)(C) shall be payable in cash on demand and (ii) in the event of any repayment or prepayment of any Loan, accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment. Except where interest is permitted to be paid in kind, all payments under the Loan Documents shall be made in immediately available funds in Dollars. Accrued interest payable on any Loans which is paid in the form of PIK Interest shall be added to the outstanding principal amount of the applicable Class of Loans as of the applicable Interest Payment Date. All payments (including prepayments) to be made by the Loan Parties under any Loan Document shall be made without setoff or counterclaim. Payments received after 2:00 p.m. New York time are considered received at the opening of business on the next Business Day. When a payment is due on a day that is not a Business Day, the payment shall be due the next Business Day, and additional fees or interest, as applicable, shall continue to accrue until paid. Each payment made by a Loan Party under a Loan Document is in addition to any payment or distribution to which the Lenders may be entitled or may receive pursuant to such Loan Party’s Organization Documents, and nothing in any Loan Document shall be construed as limiting, reducing or in any way diminishing any payment or distribution to which the Lenders may be entitled or may receive under or with respect to such Loan Party’s Organization Documents.

 

(e) Application of Payments. The Borrower shall have no right to specify the order or the accounts to which the Lenders shall allocate or apply any payment required to be made by the Borrower or any Loan Party to any Secured Party or otherwise received by a Secured Party under this Agreement or any Loan Document when any such allocation or application is not specified elsewhere in this Agreement or such Loan Document.

 

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(f) Compensation for Losses. Notwithstanding anything herein to the contrary, in the event of (a) the payment of any principal of any SOFR Loan other than on the last day of the Interest Period applicable thereto (including as a result of an Event of Default), (b) the conversion of any SOFR Loan other than on the last day of the Interest Period applicable thereto (including as a result of an Event of Default), (c) the failure to borrow, convert, continue or prepay any SOFR Loan on the date specified in any notice delivered pursuant hereto, or (d) the assignment of any SOFR Loan other than on the last day of the Interest Period applicable thereto as a result of a request by the Borrower pursuant to Section 2.09(b), then, in any such event, Borrower shall compensate each Lender for any loss, cost and expense substantiated by such Lender and attributable to such event, including any loss, cost or expense arising from the liquidation or redeployment of funds or from any fees payable (but excluding a loss of anticipated profits). A certificate of the applicable Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section shall be delivered to Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate upon receipt thereof.

 

(g) Inability to Determine Rates. Subject to Section 2.05 of this Agreement, if, on or prior to the first day of any Interest Period for any SOFR Loan:

 

(i) the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that “Term SOFR” cannot be determined pursuant to the definition thereof, or

 

(ii) the Requisite Lenders determine that for any reason in connection with any request for a SOFR Loan or a conversion thereto or a continuation thereof that Adjusted Term SOFR for any requested Interest Period with respect to a proposed SOFR Loan does not adequately and fairly reflect the cost to such Lenders of making and maintaining such Loan, and the Requisite Lenders have provided notice of such determination to the Administrative Agent,

 

then, in each case, the Administrative Agent will promptly so notify the Borrower and each Lender.

 

(h) Upon notice thereof by the Administrative Agent to the Borrower, any obligation of the Lenders to make SOFR Loans, and any right of the Borrower to continue SOFR Loans or to convert Base Rate Loans to SOFR Loans, shall be suspended (to the extent of the affected SOFR Loans or affected Interest Periods) until the Administrative Agent revokes such notice. Upon receipt of such notice, (i) the Borrower may revoke any pending request for a borrowing of, conversion to or continuation of SOFR Loans (to the extent of the affected SOFR Loans or affected Interest Periods) or, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate Loans in the amount specified therein and (ii) any outstanding affected SOFR Loans will be deemed to have been converted into Base Rate Loans at the end of the applicable Interest Period. Upon any such conversion, the Borrower shall also pay accrued interest on the amount so converted, together with any additional amounts required pursuant to Section 2.02. Subject to Section 2.05 hereto, if the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that “Term SOFR” cannot be determined pursuant to the definition thereof on any given day, the interest rate on Base Rate Loans shall be determined by the Administrative Agent without reference to clause (iii) of the definition of “Base Rate” until the Administrative Agent revokes such determination.

 

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Section 2.03 Taxes.

 

(a) Payments Free of Taxes. Any and all payments by or on account of any obligation of any Loan Party under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by applicable Law. If any applicable Law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable Law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Loan Party shall be increased as necessary so that after making such deduction or withholding (including such deductions and withholdings applicable to additional sums payable under this Section 2.03) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.

 

(b) Payment of Other Taxes by Loan Parties. Without limiting the provisions of Section 2.03(a) above, the Loan Parties shall timely pay to the relevant Governmental Authority in accordance with applicable Law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.

 

(c) Tax Indemnification. The Loan Parties shall jointly and severally indemnify each Recipient, and shall make payment in respect thereof within ten (10) days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient, and any penalties, interest and reasonable expenses arising therefrom or with respect thereto (including any recording and filing fees with respect thereto or resulting therefrom and any liabilities with respect to, or resulting from, any delay in paying such Indemnified Taxes), whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the applicable Loan Party by the applicable Recipient shall be conclusive absent manifest error. If any Loan Party fails to timely pay to the appropriate Governmental Authority any Taxes payable under this Section 2.03, such Loan Party shall indemnify the applicable Recipient for any incremental taxes, interest or penalties that may become payable by such Recipient as a result of any such failure.

 

(d) Evidence of Payments. As soon as practicable after any payment of Taxes by any Withholding Agent to a Governmental Authority as provided in this Section 2.03, such Loan Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of any return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

 

(e) Status of Lender. (i) If a Lender is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document, such Lender shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation as prescribed by applicable Laws and reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, if reasonably requested by the Borrower or the Administrative Agent, such Lender shall deliver such other documentation prescribed by applicable Law and reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 2.03(e)(ii)(A), Section 2.03(e)(ii)(B), and Section 2.03(e)(ii)(D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender or if such Lender is legally prohibited from completing, executing or submitting such documentation or cannot obtain, using best efforts and following a good faith effort to do so, any information requested by the Borrower.

 

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(ii) Without limiting the generality of the foregoing,

 

(A) any Lender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;

 

(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable:

 

(1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed copies of IRS Form W-8BEN or W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, executed copies of IRS Form W-8BEN or W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;

 

(2) executed copies of IRS Form W-8ECI;

 

(3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit J-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10-percent shareholder” of the Borrower or of Holdings within the meaning of Section 881(c)(3)(B) of the Code or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W-8BEN or W-8BEN-E; or

 

(4) to the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit J-2 or Exhibit J-3, IRS Form W-9 and/or other certification documents from each beneficial owner, as applicable; provided that, if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit J-4 on behalf of each such direct and indirect partner;

 

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(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of any other form prescribed by applicable Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and

 

(D) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this Section 2.03(e)(ii)(D), “FATCA” shall include any amendments made to FATCA after the Closing Date.

 

Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.

 

(f) Treatment of Certain Refunds. If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified by a Loan Party pursuant to this Section 2.03 (including by the payment of additional amounts pursuant to this Section 2.03), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 2.03 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the indemnifying party, upon the request of such indemnified party, agrees to repay such indemnified party the amount paid over to the indemnifying party pursuant to this Section 2.03(f) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this Section 2.03(f), in no event will the indemnified party be required to pay any amount to any Loan Parties pursuant to this Section 2.03(f), the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This Section 2.03(f) shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.

 

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(g) VAT. Notwithstanding anything in this Section 2.03 to the contrary:

 

(i) All amounts expressed to be payable under a Loan Document by any Loan Party to a Secured Party which (in whole or in part) constitute the consideration for any supply for VAT purposes are deemed to be exclusive of any VAT which is chargeable on that supply, and accordingly, subject to paragraph (ii) below, if VAT is or becomes chargeable on any supply made by any Lender to any Loan Party under a Loan Document and such Secured Party is required to account to the relevant tax authority for the VAT, that Loan Party must pay to such Secured Party (in addition to and at the same time as paying any other consideration for such supply) an amount equal to the amount of the VAT (and such Lender must promptly provide an appropriate VAT invoice to that Loan Party).

 

(ii) If VAT is or becomes chargeable on any supply made by any Secured Party (the “Supplier”) to any other Secured Party (the “Specified Recipient”) under a Loan Document, and any Loan Party other than the Specified Recipient (the “Relevant Party”) is required by the terms of any Loan Document to pay an amount equal to the consideration for that supply to the Supplier (rather than being required to reimburse or indemnify the Specified Recipient in respect of that consideration):

 

(A) (where the Supplier is the person required to account to the relevant tax authority for the VAT) the Relevant Party must also pay to the Supplier (at the same time as paying that amount) an additional amount equal to the amount of the VAT. The Specified Recipient must (where this paragraph (A) applies) promptly pay to the Relevant Party an amount equal to any credit or repayment the Specified Recipient receives from the relevant tax authority which the Specified Recipient reasonably determines relates to the VAT chargeable on that supply; and

 

(B) (where the Specified Recipient is the person required to account to the relevant tax authority for the VAT) the Relevant Party must promptly, following demand from the Specified Recipient, pay to the Specified Recipient an amount equal to the VAT chargeable on that supply but only to the extent that the Specified Recipient reasonably determines that it is not entitled to credit or repayment from the relevant tax authority in respect of that VAT.

 

(iii) Where a Loan Document requires any Loan Party to reimburse or indemnify a Secured Party for any cost or expense, that Loan Party shall reimburse or indemnify (as the case may be) such Lender for the full amount of such cost or expense, including such part thereof as represents VAT, save to the extent that such Secured Party reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.

 

(iv) Any reference in this Section 2.03(g) to any Loan Party shall, at any time when such Loan Party is treated as a member of a group for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the representative member of such group at such time (the term “representative member” to have the same meaning as in the Value Added Tax Act 1994).

 

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(v) In relation to any supply made by a Secured Party to any Loan Party under a Loan Document, if reasonably requested by such Lender, that Loan Party must promptly provide such Secured Party with details of that Loan Party’s VAT registration and such other information as is reasonably requested in connection with such Secured Party’s VAT reporting requirements in relation to such supply.

 

(h) Survival. Each party’s obligations under this Section 2.03 shall survive any assignment of rights by, or the replacement of, a Lender and the repayment, satisfaction or discharge of all obligations under any Loan Document.

 

Section 2.04 Ratable Sharing; Pro Rata Shares; Availability of Funds.

 

(a) Ratable Sharing; Pro Rata Shares. Except as otherwise expressly provided in this Agreement, each payment or prepayment of principal of any Loan, each payment of interest on the Loans, each payment of fees payable to the Lenders, each reduction of Commitments and each conversion to or continuation of any Loan shall be allocated pro rata among the Lenders of all Classes of Loans then held by the Lenders and entitled to such payment in accordance with their respective Commitments (or, if the Commitments shall have expired or been terminated, pro rata in accordance with the respective principal amounts of the outstanding Loans) held by the Lenders (unless a given Lender or Class of Loans has elected to receive a lesser allocation). The Lenders hereby agree among themselves that, if any of them shall, whether by voluntary payment (other than a voluntary prepayment of Loans made and applied in accordance with the terms hereof), through the exercise of any right of set-off or banker’s lien, by counterclaim or cross action or by the enforcement of any right under the Loan Documents or otherwise, or as adequate protection of a deposit treated as cash collateral under the Bankruptcy Code of the United States, receive payment or reduction of a proportion of the aggregate amount of principal, interest, amounts payable in respect of letter of credit fees and other amounts then due and owing to such Lender hereunder or under the other Loan Documents (collectively, the “Aggregate Amounts Due” to such Lender) which is greater than the proportion received by any other Lender in respect of the Aggregate Amounts Due to such other Lender, then the Lender receiving such proportionately greater payment shall (a) notify Administrative Agent and each other Lender of the receipt of such payment and (b) apply a portion of such payment to purchase participations (which it shall be deemed to have purchased from each seller of a participation simultaneously upon the receipt by such seller of its portion of such payment) in the Aggregate Amounts Due to the other Lenders so that all such recoveries of Aggregate Amounts Due shall be shared by all Lenders in proportion to the Aggregate Amounts Due to them; provided, if all or part of such proportionately greater payment received by such purchasing Lender is thereafter recovered from such Lender upon the bankruptcy or reorganization of Borrower or otherwise, those purchases shall be rescinded and the purchase prices paid for such participations shall be returned to such purchasing Lender ratably to the extent of such recovery, but without interest. Borrower expressly consents to the foregoing arrangement and agrees that any holder of a participation so purchased may exercise any and all rights of banker’s lien, set-off or counterclaim with respect to any and all monies owing by Borrower to that holder with respect thereto as fully as if that holder were owed the amount of the participation held by that holder. The provisions of this Section 2.04(a) shall not be construed to apply to (1) any payment made by the Loan Parties pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or (2) any payment obtained by any Lender as consideration for the origination of a new Class of Loans or Commitments or an assignment or sale of a participation in any of its Loans or other Obligations owed to it.

 

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(b) Availability of Funds. Unless Administrative Agent shall have been notified in writing by any Lender prior to the applicable Credit Date that such Lender does not intend to make available to Administrative Agent the amount of such Lender’s Loan requested on such Credit Date, Administrative Agent may assume that such Lender has made such amount available to Administrative Agent on such Credit Date and Administrative Agent may, in its sole discretion, but shall not be obligated to, make available to Borrower a corresponding amount on such Credit Date. If such corresponding amount is not in fact made available to Administrative Agent by such Lender, Administrative Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon, for each day from such Credit Date until the date such amount is paid to Administrative Agent, at the customary rate set by Administrative Agent for the correction of errors among banks for three (3) Business Days and thereafter at the Base Rate. If such Lender does not pay such corresponding amount forthwith upon Administrative Agent’s demand therefor, Administrative Agent shall promptly notify Borrower and Borrower shall immediately pay such corresponding amount to Administrative Agent together with interest thereon, for each day from such Credit Date until the date such amount is paid to Administrative Agent, at the rate payable hereunder for Base Rate Loans for such Loans. Nothing in this Section 2.04(b) shall be deemed to relieve any Lender from its obligation to fulfill its Term Loan Commitments hereunder or to prejudice any rights that the Loan Parties may have against any Lender as a result of any default by such Lender hereunder. It being understood, however, unless and until a Lender has determined, in its sole discretion, that all conditions precedent for a particular Loan have been satisfied, such Lender shall have no obligation to advance any particular Loan.

 

Section 2.05 Benchmark Replacement Settings. Notwithstanding anything to the contrary herein or in any other Loan Document:

 

(a) Replacing Future Benchmarks. (i) Notwithstanding anything to the contrary herein or in any other Loan Document, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior to any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (a) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark Replacement is determined in accordance with clause (b) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Requisite Lenders. If the Benchmark Replacement is based upon Daily Simple SOFR, all interest payments will be payable on a monthly basis.

 

(ii) No Hedging Contract or swap agreement shall constitute a “Loan Document” for purposes of this Section 2.05.

 

(b) Benchmark Replacement Conforming Changes. In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.

 

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(c) Notices; Standards for Decisions and Determinations. The Administrative Agent will promptly notify the Borrower and the Lenders of (i) the implementation of any Benchmark Replacement and (ii) the effectiveness of any Conforming Changes in connection with the use, administration, adoption or implementation of a Benchmark Replacement. The Administrative Agent will notify the Borrower of (x) the removal or reinstatement of any tenor of a Benchmark pursuant to Section 2.05(e) and (y) the commencement of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 2.05(c), including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party hereto, except, in each case, as expressly required pursuant to this Section 2.05(c).

 

(d) Unavailability of Tenor of Benchmark. Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Reference Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for all Benchmark settings at or after such time to reinstate such previously removed tenor.

 

(e) Benchmark Unavailability Period. Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any pending request for a SOFR Borrowing of, conversion to or continuation of SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate Loans. During a Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of Base Rate.

 

Section 2.06 Increased Costs; Capital Requirements.

 

(a) Compensation For Increased Costs. If any Change in Law shall:

 

(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender;

 

(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or

 

(iii) impose on any Lender or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender;

 

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and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making, converting to, continuing or maintaining any Loan or of maintaining its obligation to make any such Loan, or to reduce the amount of any sum received or receivable by such Lender or other Recipient hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or such other Recipient, Borrower will pay to such Lender or other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender or other Recipient, as the case may be, for such additional costs incurred or reduction suffered.

 

(b) Capital Requirements. If any Lender determines that any Change in Law affecting such Lender or any lending office of such Lender or such Lender’s holding company, if any, regarding capital or liquidity requirements, has or would have the effect of reducing the rate of return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement, the Term Loan Commitments of such Lender or the Loans made by, or participations in letters of credit held by such Lender, to a level below that which such Lender such Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital adequacy), then from time to time the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction suffered.

 

Section 2.07 Application of Prepayments/Reductions.

 

(a) Subject to the terms of the Pari Passu Intercreditor Agreement, which shall govern the payments on account of the Obligations and any other Priority Lien Obligations from time to time, after any voluntary or mandatory prepayments or repayments of Loans pursuant to Section 2.01 or the exercise of remedies provided for in Section 8.02 (or after the Loan Obligations (including, without limitation, any Applicable Prepayment Premium) have automatically become immediately due and payable as set forth in the proviso to Section 8.02), any amounts received on account of the Loan Obligations (including, without limitation, any Applicable Prepayment Premium) shall be applied by the Administrative Agent in the following order:

 

first, to the payment of that portion of the Loan Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to the Agents and amounts payable under Section 2.02(b), Section 2.03, Section 2.05, Section 2.06 and Section 13.02) payable to the Agents;

 

second, to the payment of that portion of the Loan Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to the Lenders and amounts payable under Section 2.02(b), Section 2.03, Section 2.05, Section 2.06 and Section 13.02 (other than any Applicable Prepayment Premium or End of Term Fee)) payable to the Lenders;

 

third, to payment of indemnities and other amounts (other than principal, interest and fees) payable to the Lenders, ratably among them in proportion to the amounts described in this clause third payable to them;

 

fourth, to payment of that portion of the Loan Obligations constituting accrued and unpaid interest on the Loans, premiums (including, without limitation, any Applicable Prepayment Premium) and fees (excluding any End of Term Fee) other than those previously paid pursuant to clause “second” above, ratably among the Lenders in proportion to the respective amounts described in this clause fourth payable to them;

 

fifth, to payment of that portion of the Loan Obligations constituting unpaid principal of the Loans, ratably among the Lenders in proportion to the respective amounts described in this clause fifth held by them;

 

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sixth, except in connection with any waivable prepayment of the type described in Section 2.01(e)(iii) and Section 2.01(e)(iv), to prepay Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) and shall be further applied in inverse order of maturity to reduce the remaining scheduled installments of principal of the Loans;

 

seventh, to the payment of that portion of the Loan Obligations constituting any End of Term Fee payable to the Lenders;

 

eighth, to the payment in full of all other Loan Obligations then owing, ratably among the Secured Parties in proportion to the respective amounts described in this clause sixth held by them; and

 

ninth, the balance, if any, after all of the Loan Obligations have been indefeasibly paid in full in cash, to the Loan Parties or as otherwise required by applicable Law.

 

Subject to clauses “first” through “eighth” preceding, Administrative Agent shall have the continuing and exclusive right to apply and reverse and reapply any and all such proceeds and payments to any portion of the Loan Obligations.

 

Section 2.08 Defaulting Lenders.

 

(a) Defaulting Lender Adjustments. Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable Law:

 

(i) Waivers and Amendments. Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definition of Requisite Lenders and as set forth in Section 13.05(b):

 

(ii) Defaulting Lender Waterfall. Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 13.15 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; third, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement; fourth, to the payment of any amounts owing to the Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; fifth, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and sixth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made when the conditions set forth in Section 3.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of all non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of such Defaulting Lender until such time as all Loans are held by the Lenders pro rata in accordance with the Term Loan Commitments. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.

 

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(iii) Certain Fees. (A) No Defaulting Lender shall be entitled to receive the Administration Fee described in Section 2.02(b)(i)(A) or the Initial Origination Fee described in Section 2.02(b)(i)(B) or the Second Restatement Origination Fee described in Section 2.02(b)(i)(C) for any period during which that Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender).

 

(b) Defaulting Lender Cure. If the Borrower and the Administrative Agent agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein, that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans to be held pro rata by the Lenders in accordance with the Term Loan Commitments, whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.

 

Section 2.09 Mitigation of Obligations; Replacement of Lenders.

 

(a) Designation of a Different Lending Office. If any Lender requests compensation under Section 2.05, 2.06(a) or 2.06(b), or requires the Loan Parties to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.03, then such Lender shall (at the request of the Borrower) use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or Affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.03 or 2.06 as the case may be, in the future, and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Loan Parties hereby agree to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.

 

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(b) Removal or Replacement of a Lender. Anything contained herein to the contrary notwithstanding, in the event that: (a) (i) any Lender (an “Increased-Cost Lender”) shall give notice to Borrower that such Lender is entitled to receive payments under Section 2.03 or 2.06, (ii) the circumstances which have caused such Lender to be entitled to receive such payments shall remain in effect, (iii) such Lender shall fail to withdraw such notice within five (5) Business Days after Borrower’s request for such withdrawal and (iv) such Lender has declined or is unable to designate a different lending office in accordance with Section 2.09(b); or (b) (i) any Lender shall become a Defaulting Lender, (ii) the Default Period for such Defaulting Lender shall remain in effect, and (iii) such Defaulting Lender shall fail to cure the default as a result of which it has become a Defaulting Lender within five (5) Business Days after Borrower’s request that it cure such default; or (c) in connection with any proposed amendment, modification, termination, waiver or consent with respect to any of the provisions hereof as contemplated by Section 13.05(b), the consent of Administrative Agent shall have been obtained but the consent of one (1) or more of such other Lenders (each a “Non-Consenting Lender”) whose consent is required shall not have been obtained; then, with respect to each such Increased-Cost Lender, Defaulting Lender or Non-Consenting Lender (the “Terminated Lender”), Administrative Agent may (which, in the case of an Increased-Cost Lender, only after receiving written request from Borrower to remove such Increased-Cost Lender), by giving written notice to Borrower and any Terminated Lender of its election to do so, elect to cause such Terminated Lender (and such Terminated Lender hereby irrevocably agrees) to assign and delegate its outstanding Loans and its Term Loan Commitments, if any, in full to one (1) or more Eligible Assignees (each a “Replacement Lender”) in accordance with the provisions of Section 13.01 and Terminated Lender shall pay any fees payable thereunder in connection with such assignment; provided, (1) on the date of such assignment, the Replacement Lender shall pay to Terminated Lender an amount equal to the sum of (A) an amount equal to the principal of, and all accrued interest on, all outstanding Loans of the Terminated Lender and (B) an amount equal to all accrued, but theretofore unpaid fees owing to such Terminated Lender pursuant to Section 2.01(d)(i), Section 2.01(f) and Section 2.02(b); (2) on the date of such assignment, Borrower shall pay any amounts payable to such Terminated Lender pursuant to Section 2.03 or Section 2.06; (3) in the event such Terminated Lender is a Non-Consenting Lender, each Replacement Lender shall consent, at the time of such assignment, to each matter in respect of which such Terminated Lender was a Non-Consenting Lender. In the event that the Terminated Lender fails to execute an Assignment Agreement pursuant to Section 13.01 within five (5) Business Days after receipt by the Terminated Lender of notice of replacement pursuant to this Section 2.09(b) and presentation to such Terminated Lender of an Assignment Agreement evidencing an assignment pursuant to this Section 2.09(b), the Terminated Lender shall be deemed to have executed and delivered such Assignment Agreement, and upon the execution and delivery of Assignment Agreement by the Replacement Lender and Administrative Agent, shall be effective for purposes of this Section 2.09(b) and Section 13.01. Upon the prepayment of all amounts owing to any Terminated Lender and the termination of such Terminated Lender’s Term Loan Commitments, if any, such Terminated Lender shall no longer constitute a “Lender” for purposes hereof; provided, any rights of such Terminated Lender to indemnification hereunder shall survive as to such Terminated Lender. For the avoidance of doubt, all fees that would otherwise be due and payable to any Non-Consenting Lender, including, without limitation, any Applicable Prepayment Premium, shall continue to be due and payable to such Non-Consenting Lender.

 

Article III
CONDITIONS Precedent to the LOANs

 

Section 3.01 Conditions to the Closing Date and Closing Date Term Loans. In addition to the conditions precedent set forth in Schedule 2 of the Reaffirmation and Omnibus Amendment Agreement, each Lender’s obligation to fund the Closing Date Term Loans was also subject to its satisfactory completion of due diligence prior to Loan Parties entering into this Agreement with such Lender (including financial due diligence conducted by a service provider of such Lender’s choosing) and it having received evidence in form and substance satisfactory to it of the satisfaction of each of the following conditions precedent prior to or contemporaneously with the making of the Closing Date Term Loans and the consummation of the Loan Amendment Transactions (or such Lender agreeing to waive such condition):

 

(a) Documentation. The Agent and each Lender received, in form and substance satisfactory to it and its counsel, each of the following duly executed and delivered:

 

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(i) each of the Loan Documents and Transaction Documents to be executed on the Closing Date (except in each case, any Loan Document or Transaction Document delivery of which was a Post-Closing Obligation (as defined in the Existing Credit Agreement));

 

(ii) from each Loan Party which is a party to any Loan Documents other than the UK Guarantor, a certificate dated as of the Closing Date executed by two (2) authorized officers, or as the context may require, two (2) directors of such Loan Party (or, with respect to the Japanese Guarantor and the Israeli Guarantor, one such officer or director) certifying and attaching: (A) copies of the Organization Documents of such Loan Party, together with all amendments thereto (including, without limitation, a true and complete copy of the charter, certificate of formation, certificate of limited partnership or other publicly filed organizational document of each Loan Party certified (except in respect of the Israeli Guarantor) as of a recent date not more than thirty (30) days prior to the Closing Date by an appropriate official of the jurisdiction of organization of such Loan Party which set forth the same complete name of such Loan Party as is set forth herein and the organizational number of such Loan Party, if an organizational number is issued in such jurisdiction), (B) a copy of the resolutions or written consents (1) of such Loan Party authorizing the borrowings hereunder and the transactions contemplated by the Transaction Documents and the Transaction Documents to which such Loan Party is or will be a party, and (2) of such Loan Party authorizing the execution, delivery and performance by such Loan Party of each Loan Document and Transaction Documents to which such Loan Party is or will be a party and the execution and delivery of the other documents to be delivered by such Person in connection herewith and therewith, including, without limitation, in the case of the Borrower, the “Warrants” (as such term was defined in the Initial Credit Agreement), (C) the names and true signatures of the representatives of such Loan Party authorized to sign each Loan Document and Transaction Document (in the case of a Borrower, including, without limitation, Notices of Borrowing and all other notices under the Existing Credit Agreement and the other Loan Documents and Transaction Documents) to which such Loan Party is or will be a party and the other documents executed and delivered by such Loan Party in connection herewith and therewith, together with evidence of the incumbency of such authorized officers, (D) [Reserved], (E) with respect to the Borrower and the Loan Parties that are Subsidiaries organized in the United States or the District of Columbia, a certificate of the Secretary of State or other appropriate official(s) of the jurisdiction of organization and, except to the extent such failure to be so qualified could not reasonably be expected to have a Material Adverse Effect, in each U.S. state of foreign qualification of such Loan Party certifying as of a recent date not more than fifteen (15) days prior to the Closing Date as to the existence or subsistence in good standing of such Loan Party in such jurisdictions, in each case to the extent generally available in such jurisdictions and (F) in the case of the Israeli Guarantor, a certification from the board of directors that pursuant to sections 256(d) and 282 of the Israeli Companies Law, that all approvals, as required under the Israeli Companies Law (including, without limitation, under sections 255, 270-272 and Section 277 thereof) and the Organization Documents of Israeli Guarantor, had been duly obtained for, amongst other things, the transactions contemplated by the Loan Documents and the Transaction Documents;

 

(iii) with respect to the UK Guarantor, a certificate dated as of the Closing Date executed by a director in usual and customary format in the context of loan transactions in the U.K. as agreed between counsel to the Administrative Agent and counsel to the Borrower certifying and attaching: (A) resolutions of its Board of Directors then in full force and effect (i) authorizing the execution, delivery and performance of each Loan Document and the UK Security Documents to which it is party, (ii) authorizing a specified person or persons on its behalf to sign and/or dispatch all documents and notices to be signed and/or dispatched by it under or in connection with the Loan Documents and the UK Security Documents to which it is a party; and (iii) certifying that the guaranteeing of the obligations of the Borrower would not cause any guaranteeing or similar limit binding on it to be exceeded; (B) a specimen signature of each person authorized by the resolution referred to at (A); (C) resolutions of the Borrower as the shareholder of UK Guarantor, approving the execution, delivery and performance of each Loan Document and the UK Security Documents to which UK Guarantor is party; (D) resolution of the Board of Directors of the Borrower as the shareholder of UK Guarantor, approving the resolutions of shareholders referred to at (C); and (E) true, complete and up-to-date copies of the constitutional documents of the UK Guarantor.

 

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(iv) evidence of the insurance coverage and endorsements required by Section 6.13 and the terms of the Collateral Documents and such other insurance coverage with respect to the business and operations of the Loan Parties as the Collateral Agent may reasonably request;

 

(v) [Reserved];

 

(vi) evidence of the third-party consents listed on Schedule 5.03 to the Existing Credit Agreement;

 

(vii) a customary legal opinion from

 

(A) Dorsey & Whitney LLP, as United States counsel to the Loan Parties;

 

(B) City-Yuwa Partners, as Japanese counsel to the Loan Parties;

 

(C) Herzog Fox & Neeman, as Israeli counsel to the Loan Parties; and

 

(D) Reed Smith LLP, as counsel to the Administrative Agent in England and Wales.

 

(viii) the audited financial statements of Borrower and its Subsidiaries for the fiscal year ending December 31, 2019; and

 

(ix) such other documents, evidence and information as the Administrative Agent reasonably required.

 

(b) [Reserved].

 

(c) [Reserved].

 

(d) [Reserved].

 

(e) [Reserved].

 

(f) [Reserved].

 

(g) [Reserved].

 

(h) [Reserved].

 

(i) Solvency Certificate. The Administrative Agent and each Lender’s receipt of a Solvency Certificate from the chief financial officer of the Borrower dated as of the Closing Date and addressed to Administrative Agent and the Lenders, and in form, scope and substance satisfactory to Administrative Agent, with appropriate attachments and demonstrating that both before and after giving effect to the Transactions that (A) each of Borrower and each of the other Loan Parties that are Persons organized in a state of the United States or the District of Columbia was and would be Solvent, and (B) that the Borrower and each of its Subsidiaries, on a consolidated basis, were and would be Solvent.

 

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(j) Personal Property Collateral. In order to create in favor of Collateral Agent, for the benefit of the Lenders, a valid, perfected security interest in the personal property Collateral, the Agent and the Lenders received (in form and substance satisfactory to them):

 

(i) evidence satisfactory to Collateral Agent and the Lenders of the compliance by each Loan Party with their obligations under the Collateral Documents and the other Loan Documents (including, without limitation, (A) their obligations to authorize or execute, as the case may be, and deliver UCC financing statements (or their equivalent), (B) a copy of all notices required to be sent under the UK Security Documents executed by the UK Guarantor and (where required by the UK Security Documents) duly acknowledged by the addressee, (C) all share certificates, transfers and stock transfer forms or equivalent duly executed by the applicable Loan Party in blank, (D) intellectual property filings (including IP Security Agreements to be filed with the Copyright Office, or the Patent and Trademark Office or any other equivalent foreign office of competent jurisdiction in Israel or England and Wales), and (E) originals of securities, instruments and chattel paper and any Control Agreements, notice or agreements governing deposit and/or securities accounts as provided therein);

 

(ii) a completed Perfection Certificate dated as of the Closing Date and executed by a Responsible Officer of each Loan Party, together with all attachments contemplated thereby, including (A) the results of a recent search, by a Person satisfactory to Collateral Agent, of all effective UCC financing statements (or equivalent filings) made with respect to any personal or mixed property of any Loan Party in the jurisdictions specified in the Perfection Certificate, together with copies of all such filings disclosed by such search, and (B) UCC amendment or termination statements (or similar documents), where applicable, duly executed by all applicable Persons for filing in all applicable jurisdictions as may be necessary to amend, or as the context may require, terminate any effective UCC financing statements (or equivalent filings in such other jurisdictions) disclosed in such search (other than any such financing statements in respect of Permitted Liens);

 

(iii) [Reserved];

 

(iv) [Reserved];

 

(v) [Reserved];

 

(vi) [Reserved];

 

(vii) a copy of an excerpt from a search against the Israeli Guarantor at the Israeli Companies Registrar, and a copy of an excerpt from a search against Borrower, Airspan Communication Limited and IP Hold-Co at the Israeli Pledges Registrar, in each case, evidencing that there were no outstanding Liens over its assets, save as permitted under this Agreement;

 

(viii) [Reserved];

 

(ix) [Reserved]; and

 

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(x) a resolution of the shareholders of Israeli Guarantor approving the terms of, and the transactions contemplated by, the Loan Documents to which it is a party and the amendment of its articles of association to include substantially the following provision: “Notwithstanding anything to the contrary herein or in any shareholders agreement including, without limitations, Articles 12.1, 12.2 and 12.4(c) of these Articles of Association: (a) any: (i) creation of a charge or other security interest over the shares of the Company; or (ii) any transfer of shares of the Company to any person, in each case by way of realization of a charge or other security interest granted in favor of the Collateral Agent on behalf of the Secured Parties under or in connection with that certain Credit Agreement dated as of December 30, 2020, among, inter alia, Airspan Networks Inc., a Delaware corporation, the Lenders and DBFIP ANI LLC as administrative agent and collateral agent for the Secured Parties and the other parties listed therein, as may be amended, restated, refinanced, replaced, supplemented or otherwise modified from time to time, shall not require approval of the Board under these Articles of Association or any such shareholders agreement or otherwise be restricted in any manner; (b) the registration of any such share transfer(s) in the shareholders registry of the Company or the exercise of any rights, preferences, privileges and powers attached to such shares or conferred upon the holders thereof under law or by virtue of these Articles of Association or any contract shall not be limited or restricted in any manner and shall not require approval of the Board under these Articles of Association; (c) the registration of a liquidator, trustee, receiver or other authorized functionary (“baal tafkid”) in the shareholders register of the Company in connection with the realization of a charge or other security interest granted in favor of the Secured Party in connection with the Credit Agreement shall not require approval of the Board under these Articles of Association; and (d) the company may grant a guarantee, charge or other security interest, in favor of the Secured Party, to guarantee or otherwise secure the Obligations of any obligor under the Credit Agreement and the other Loan Documents. The Secured Party (and its beneficiaries and permitted assigns) and any receiver shall be third party beneficiaries of the provisions of this Article and no waiver, amendment or modification of this Article may be made without the prior written consent of the Secured Parties.”

 

(k) Formation of IP Hold-Co. Administrative Agent received evidence of the formation of the IP Hold-Co with Organization Documents in form and substance satisfactory to the Administrative Agent and the Lenders and duly executed copies of the IP Hold-Co Documents delivered in escrow to the Administrative Agent;

 

(l) Control Agreements. Administrative Agent and Lenders received, in form and substance reasonably satisfactory to it, a duly executed and delivered Control Agreement for each of the U.S. Loan Parties’ deposit accounts other than the Excluded Accounts and the accounts excluded from requirement to enter into a Control Agreement under the terms of the Collateral and Guarantee Requirements and notice and acknowledgement of the notice of assignment relating to accounts charged under the UK Security Documents;

 

(m) Qualified Equity Interest Issuance. Administrative Agent and Lenders received evidence, in form and substance satisfactory to them (in their sole discretion), that the Borrower received (or received substantially simultaneously with the Closing Date) Net Cash Proceeds from the issuance of common stock or other Qualified Equity Interests of the Borrower in an amount not less than Ten Million Dollars ($10,000,000);

 

(n) Appointment of Process Agent. All documents or evidence requested by the Administrative Agent, in its sole discretion, to effect the appointment of the Borrower as Process Agent in accordance with the terms of Section 12.05 have been delivered to the Administrative Agent.

 

(o) [Reserved].

 

(p) [Reserved].

 

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(q) Softbank Subordination Agreement. Administrative Agent and Lenders have received, in form and substance satisfactory to them (in their sole discretion) a duly executed copy of the Softbank Subordination Agreement.

 

(r) [Reserved].

 

(s) [Reserved].

 

(t) Miscellaneous. Administrative Agent and the Lenders’ receipt of (i) formal approval of the transactions contemplated in the Existing Credit Agreement by such Lender’s Investment Committee, (ii) satisfactory review of all Material Contracts, (iii) satisfactory management background investigation results, (iv) copies of any other third-party due diligence reports conducted by Borrower or its Subsidiaries, (v) appropriate documentation of all proceedings in connection with the making of the initial Loans and the other transactions contemplated by the Existing Credit Agreement and the other Transaction Documents, and all documents incidental hereto and thereto (vi) copies of each of the other closing deliverables described in the closing checklist attached as Exhibit E to the Reaffirmation and Omnibus Amendment Agreement and such other documents and information as the Administrative Agent and the Lenders reasonably required and such counterpart originals or certified or other copies of such documents.

 

Section 3.02 Conditions to all Loans after the Closing Date. The obligation of any Lender to fund a Delayed Draw Term Loan after the Closing Date or the Administrative Agent to assist the Borrower in such extension of credit, is subject to it having received evidence in form and substance satisfactory to it of the satisfaction of each of the following conditions precedent prior to or contemporaneously with the making of such Loan (or such Lender agreeing to waive such condition in writing):

 

(a) Borrowing Notice. The Administrative Agent and Lenders shall have received (in form and substance satisfactory to them) a fully executed, assembled Notice of Borrowing (including any attachments, calculations or other supporting information and specifying a permitted use for the proceeds of the Loan).

 

(b) Representations and Warranties. The representations and warranties of each Loan Party and Subsidiary which is a party to any Loan Documents contained in each Loan Document or in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (provided, that such materiality qualifier shall not be applicable to those representations and warranties qualified or modified by materiality in the text thereof) on and as of the date of such credit extension, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date. The Secured Parties shall not have become aware of any material adverse new or inconsistent information or other matter which was not previously disclosed to the Secured Parties.

 

(c) Absence of Default. No Default or Event of Default exists or would result from the proposed credit extension or the application of the proceeds thereof and no event or circumstance exists that could reasonably be expected to have a Material Adverse Effect.

 

(d) [Reserved].

 

(e) Fees. Evidence that all fees required to be paid to the Agents and Lenders pursuant to Section 2.02(b) or any fee letter on or before the date of such credit extension, shall have been paid and all other fees and expenses required to be paid to the Lenders or the Agents (including all out-of- pocket expenses of the Agents and the Lenders (including the reasonable fees, charges and disbursements of counsel to the Secured Parties) required to be paid or reimbursed by the Loan Parties) on or before or substantially concurrently with the applicable credit extension shall have been paid (or the Administrative Agent shall have received evidence in form and substance satisfactory to it that such fees will be paid substantially concurrently with the extension of credit).

 

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(f) Financial Condition. There is no event or circumstance that has occurred since the date of the most recently delivered financial statements delivered pursuant to Section 6.02(a) that could reasonably be expected to have a Material Adverse Effect.

 

(g) Conditions for the Delayed Draw Term Loans. Solely with respect to the funding of a Delayed Draw Term Loan, the Delayed Draw Funding Conditions shall have been satisfied.

 

(h) Officer’s Certificate. The Secured Parties’ receipt of an officer’s certificate of Borrower certifying that each of the conditions specified in this Section 3.02 have been satisfied.

 

(i) Approvals. All consents, authorizations and approvals of, and filings and registrations with, and all other actions in respect of, any Governmental Authority or other Person required in connection with the making of the Loans shall have been obtained and shall be in full force and effect.

 

(j) Miscellaneous. Any Agent or Lender shall be entitled, but not obligated to, request and receive, prior to any Credit Date, any additional information, approvals, documents or opinions reasonably satisfactory to the requesting party as such Agent or Lender may reasonably request or that it reasonably deems necessary to confirm its satisfaction with any of the conditions set forth in this Section 3.02.

 

Each Lender, by funding a Loan on a Credit Date, shall be deemed to have acknowledged receipt of, and consented to and approved, each condition precedent, Loan Document and each other document or evidence required to be approved by any Agent, Requisite Lenders or Lenders, as applicable on such date.

 

Article IV
WARRANT

 

Section 4.01 Warrant to Purchase Shares. In connection with the Second Restatement, the Second Restatement Effective Date and the Delayed Draw Term Loan Commitments, pursuant to the terms and conditions of the Warrants, Holdings has authorized the issue and sale of Equity Interests and grants each of the Lenders that hold Delayed Draw Term Loan Commitments on the Second Restatement Effective Date, or a designated Affiliate of any such Lender, the right to purchase Equity Interests in Borrower as more specifically set forth in such Warrant and in Holding’s Organization Documents.

 

Section 4.02 Tax Treatment.

 

(a) For U.S. federal income tax purposes, the Loan Parties, the Agents and the Lenders acknowledge and agree that the Delayed Draw Term Loan advanced pursuant to Section 2.01 hereof and the Warrants are part of an “investment unit” within the meaning of Section 1273(c)(2) of the Code. Each party hereto further acknowledges and agrees that the fair market value of the Warrants and the “issue price” and “original issue discount” of each of the Delayed Draw Term Loans issued on the Second Restatement Effective Date for purposes of Section 1273(b) of the Code, will be determined in good faith by Fortress after the Second Restatement Effective Date (subject to the review and approval of the Borrower, which approval shall not be unreasonably withheld, conditioned or delayed) as required by Section 1273(c)(2)(B) of the Code and Treasury Regulations Section 1.1273-2(h).

 

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(b) The Loans are intended to be treated as indebtedness for U.S. federal income tax purposes and shall not be treated as “contingent payment debt instruments” governed by the rules under Treasury Regulations Section 1.1275-4. The calculation by the Borrower of the amount of original issue discount for any accrual period of the Loans shall be subject to the review and approval of Fortress, which shall not be unreasonably withheld, conditioned or delayed. Each of the Loan Parties shall provide any information reasonably requested from time to time by any Lender regarding the original issue discount associated with the Loans for U.S. federal income tax purposes.

 

(c) The Loan Parties and the Lenders agree to use the issue price and fair market values as so determined pursuant to this Section 4.02 for all U.S. federal income tax purposes, shall file all Tax returns, reports and declarations consistent with the provisions of this Section 4.02, and shall not take any tax position that is inconsistent with such intended tax treatment or determination of fair market value or issue price. The inclusion of this Section 4.02 is not an admission by any Lender that it is subject to United States taxation.

 

Article V
REPRESENTATIONS AND WARRANTIES

 

In order to induce Agents and the Lenders to enter into this Agreement and to make each Credit Extension to be made thereby, each Loan Party represents and warrants to Agents and the Lenders, on the Closing Date, the First Restatement Effective Date, the Second Restatement Effective Date and on each Credit Date, that the following representations are true, complete and correct:

 

Section 5.01 Existence, Qualification and Power. Each Loan Party and each Subsidiary thereof (a) is duly organized or formed, validly existing and, as applicable, in good standing under the Laws of the jurisdiction of its incorporation or organization as identified in Schedule 5.13; (b) has all requisite corporate power and authority and all requisite governmental licenses, authorizations, consents and approvals to (i) own or lease its assets and carry on its business; and (ii) execute, deliver and perform its obligations under the Loan Documents and Transaction Documents to which it is a party; (c) is duly qualified and is licensed and, as applicable, in good standing under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification or license in each case except to the extent any failure would not reasonably be expected to have a Material Adverse Effect; and (d) Israeli Guarantor is not a “company in breach” (“hevrah meferah”), as such term is defined in the Israeli Companies Law 1999, and neither has received a notice that it is expected to be registered as such. Schedule 5.13 also correctly sets forth a fully diluted capitalization table of each Subsidiary of Holdings and their respective subsidiaries showing all Equity Interests held in each subsidiary.

 

Section 5.02 Authorization; No Contravention. The execution, delivery and performance by each Loan Party of each Loan Document and Transaction Document to which it is a party, have been duly authorized by all necessary corporate or other organizational action, and do not and will not contravene the terms of any of its Organization Documents or conflict with or result in any breach or contravention of, or the creation of any Lien under, or require any payment to be made under: (i) any material Contractual Obligation to which it is a party or affecting it or its properties or any of its Subsidiaries; (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which it or its property is subject; or (iii) violate any applicable Law, in each case except to the extent any failure would not reasonably be expected to have a Material Adverse Effect.

 

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Section 5.03 Governmental Authorization; Other Consents. Except as set forth in Schedule 5.03 and other than actions to perfect security interests, no approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement or any other Loan Document. No grants, funds or benefits (including, but not limited to, tax benefits actually applied) from the Israel Innovation Authority (formerly known as, the National Authority for Technological Innovation) or any other Governmental Authority were received by any Loan Party and any Loan Party is not obligated to pay any royalties or any other payments to the Israel Innovation Authority or any other Governmental Authority. The transactions contemplated under any Loan Document (including the Transactions occurring on the First Restatement Effective Date and the Second Restatement Effective Date) are not subject to any right and do not require the approval of the Israel Innovation Authority.

 

Section 5.04 Binding Effect. This Agreement has been, and each other Loan Document, when delivered hereunder, will have been, duly executed and delivered by each Loan Party that is party thereto. This Agreement constitutes, and each other Loan Document when so delivered will constitute, a legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that is party thereto in accordance with its terms, except as enforcement may be limited by equitable principles or by bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to or limiting creditors’ rights generally.

 

Section 5.05 Financial Statements; No Material Adverse Effect. The Audited Financial Statements (a) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; (b) fairly present the financial condition of (x) prior to the First Restatement Effective Date, Borrower and its Subsidiaries, and (y) with respect to any Audited Financial Statements for a period after the First Restatement Effective Date, Holdings and its Subsidiaries, as of the date thereof and their results of operations for the period covered thereby in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; and (c) show all material indebtedness and other liabilities (including, without limitation, Indebtedness, liabilities for taxes, long-term leases, Indebtedness and other unusual forward or long-term commitments), direct or contingent, of such Person and its Subsidiaries as of the date thereof. Since March 16, 2023, there has been no event or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect, except as disclosed to the Secured Parties in Schedule 5.05.

 

Section 5.06 Litigation. There are no actions, suits, proceedings, claims, investigations or disputes pending or, to the Knowledge of Holdings or any of its Subsidiaries, threatened in writing, at Law, in equity, in arbitration or before any Governmental Authority, by or against Holdings or any of its Subsidiaries or against any of their properties or revenues that purport to affect or pertain to this Agreement or any other Loan Document, or any of the transactions contemplated hereby which would be adverse to the Loan Parties or the Secured Parties in any material respect. Neither Holdings nor any of its Subsidiaries, nor any director or officer thereof, is or since December 31, 2019 has been the subject of any action involving a claim of violation of or liability under federal or state securities laws or a claim of breach of fiduciary duty. The SEC has not issued any stop order or other order suspending the effectiveness of any registration statement filed by Holdings or any Subsidiary under the Securities Act and Exchange Act, as applicable.

 

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Section 5.07 No Default. Neither any Loan Party nor any Subsidiary thereof is in default or event of default under or with respect to any Contractual Obligation that could either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. No Default or Event of Default has occurred and is continuing or would result from the consummation of the transactions contemplated by this Agreement or any other Loan Document.

 

Section 5.08 Ownership of Property; Liens; Permits.

 

(a) Holdings and each of its Subsidiaries has, in all material respects, good, indefeasible and merchantable title to and ownership of its property, and is the beneficial owner of all Equity Interests in its Subsidiaries and other Persons purported to be owned by such Person, free and clear of all Liens, except Permitted Liens.

 

(b) Each Loan Party has, and is in compliance with, all permits, licenses, authorizations, approvals, entitlements and accreditations required for such Person lawfully to own, lease, manage or operate, or to acquire, each property or asset or business currently owned, leased, managed or operated, or to be acquired, by such Person, except to the extent the failure to have or be in compliance therewith could not reasonably be expected to have a Material Adverse Effect. No condition exists or event has occurred which, in itself or with the giving of notice or lapse of time or both, would result in the suspension, revocation, impairment, forfeiture or non-renewal of any material permit, license, authorization, approval, entitlement or accreditation necessary to the operation of the business of the Loan Parties as it is currently operated, and, to the Knowledge of the Loan Parties, there is no claim that any thereof is not in full force and effect.

 

Section 5.09 Environmental Compliance. Except as set forth on Schedule 5.09, (i) no Loan Party or any of its Subsidiaries is in material violation of any applicable Environmental Law, (ii) each Loan Party and its Subsidiaries has, and is in compliance with, all Environmental Permits for its respective operations and businesses, except to the extent any failure to have or be in compliance therewith could not reasonably be expected to result in any material Environmental Claim or Environmental Liability; (iii) to the knowledge of the Loan Parties or its Subsidiaries, there has been no Release of Hazardous Materials at any properties currently or formerly owned, leased or operated by any Loan Party, its Subsidiaries or a respective predecessor in interest or at any disposal or treatment facility which received Hazardous Materials generated by any Loan Party, its Subsidiaries or any respective predecessor in interest, which in any case of the foregoing could reasonably be expected to result in any material Environmental Claim or Environmental Liability; (iv) neither any Loan Party nor any of its Subsidiaries has received written notice of any pending or threatened Environmental Claims against, or Environmental Liability of, any Loan Party, its Subsidiaries or any respective predecessor in interest that could reasonably be expected to result in any material Environmental Claim or Environmental Liability; (v) neither any Loan Party nor any of its Subsidiaries is performing or responsible for any Remedial Action that could reasonably be expected to result in any material Environmental Claim or Environmental Liability; and (vi) the Loan Parties have made available to the Collateral Agent and Lenders true and complete copies of all material environmental reports, audits, and investigations in the possession or control of any Loan Party or any of its Subsidiaries with respect to the operations and business of the Loan Parties and its Subsidiaries.

 

Section 5.10 Insurance. The properties of Holdings and its Subsidiaries are insured with insurance companies that are not Affiliates of the Loan Parties that, to their Knowledge, are financially sound and reputable, in such amounts (after giving effect to any self-insurance reasonable and customary for similarly situated Persons engaged in the same or similar business as Holdings or applicable Subsidiary), with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where Holdings or the applicable Subsidiary operates.

 

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Section 5.11 Taxes. Holdings and each Subsidiary (a) have properly prepared and timely filed all material Tax returns and reports required to have been filed by them with all appropriate Governmental Authority and (b) have fully and timely paid all Taxes required to be paid by them, other than Taxes that are being contested in good faith by appropriate proceedings and for which adequate reserves have been provided and reflected in Holdings and its Subsidiaries’ financial statements in accordance with the applicable GAAP. The charges, accruals and reserves on the books of Holdings and its Subsidiaries in respect of Taxes for all fiscal periods are adequate in all material respects, and there are no material unpaid assessments against Holdings or any Subsidiary nor, to Holdings’ or any Subsidiary’s Knowledge, any basis for the assessment of any additional Taxes, penalties or interest for any fiscal period or audits by any federal, state or local taxing authority. All Taxes and other assessments and levies that Holdings or any Subsidiary is required to withhold or to collect for payment have been duly withheld and collected and paid to the proper Governmental Authority or third party when due. There are no Tax liens or claims pending or threatened against Holdings or any Subsidiary or any of their respective assets or property other than Permitted Liens. Neither the Holdings nor any of its Subsidiaries is a party to any Tax sharing agreement or other similar arrangement.

 

Section 5.12 ERISA and Foreign Plans Compliance; Pensions 

 

(a) (i) Each Plan is in compliance in all material respects with the applicable provisions of ERISA,