REAFFIRMATION AGREEMENT AND OMNIBUS AMENDMENT AGREEMENT

Exhibit 10.21

Execution Version

This Reaffirmation Agreement and Omnibus Amendment Agreement (this “Agreement”) is dated as of December 30, 2020 (the “Effective Date”) and entered into by AIRSPAN NETWORKS INC., a Delaware corporation, as borrower (“ANI” or the “Borrower”), each Subsidiary of the Borrower from time to time party thereto as a Guarantor (collectively, the “Guarantors” and the Guarantors together with ANI, each a “Loan Party” and collectively, the “Loan Parties”) , the Lenders from time to time party thereto 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, the “Agent”).

WHEREAS, the Loan Parties have previously entered into (i) that certain Second Amended and Restated Loan and Security Agreement, dated as of November 20, 2018 (as amended and as the same may be further amended, amended and restated, restated, supplemented or otherwise modified from time to time prior to the Effective Time, the “Original Credit Agreement”), by and among, inter alia, each of the Loan Parties, the lenders and financial institutions party thereto, and Pacific Western Bank, the successor in interest by merger to Square 1 Bank (“PWB”) in its capacity as Agent (defined below) (PWB in such capacity, the “Prior Agent”) and certain related Transaction Documents (as defined in the Resignation Agreement referred to below) and (ii) in connection with certain amendments to the Original Credit Agreement occurring on the date hereof immediately prior but substantially concurrently with the Effective Time (defined below), (a) PWB, in its capacities as a lender and as the Prior Agent, together with the Loan Parties, the Agent and Ally Bank (“Ally” and together with “PWB”, the “Prior Lenders”) in its capacity as a lender, entered into that certain Assignment of Loan (the “Assignment Agreement”) attached as Exhibit A hereto pursuant to which each of the Prior Lenders, among other things, terminated their Revolving Loan commitments under the Original Credit Agreement and assigned and transferred all of their interest in the funded Loans (as defined in the Original Credit Agreement and as used herein, the “Original Loans”) and the other Assigned Interests (as defined in the Assignment Agreement) to the Lenders; (b) the Loan Parties, the Prior Agent, the Lenders and the Agent, entered into that certain Resignation and Assignment Agreement (the “Resignation Agreement”) attached as Exhibit B hereto pursuant to which (x) PWB resigned in its capacity as Agent (as defined in the Resignation Agreement) under all of the Transaction Documents (as defined in the Resignation Agreement), (y) Fortress became the Successor Agent (as defined in the Resignation Agreement) replacing PWB in such capacity under the Original Credit Agreement and the Transaction Documents (as defined in the Resignation Agreement, the “Existing Transaction Documents”) and all of PWB’s interests in its capacity as Agent (as defined in the Resignation Agreement) were assigned to Fortress in its capacity as Agent and certain technical amendments to the Existing Transaction Documents were approved to effectuate such changes and (z) all of the parties thereto consented to the making of such additional technical amendments to the Existing Transaction Documents as would be required or advisable to effectuate the transactions contemplated thereby (including this Agreement which will (A) amend and restate the Original Credit Agreement in its entirety and replace the Original Credit Agreement with the Credit Agreement attached as Exhibit C (the Original Credit Agreement as amended and restated by this Agreement and as the same may be further amended, restated, amended and restated, supplemented or modified from time to time, the “Credit Agreement”) and the Security Agreement attached as Exhibit D hereto (as the same may be amended and restated by this Agreement and as the same may be further amended, restated, amended and restated, supplemented or modified from time to time, the “Security Agreement”) and make certain other amendments to the Existing Transaction Documents specified herein, (B) reaffirm the Liens and continuing Obligations of the Obligors under the Existing Transaction Documents (as amended and restated hereby and by the other Loan Documents entered into in connection therewith the “Transaction Documents”), (C) evidence the Subsidiaries of the Borrower that were parties to the Original Credit Agreement as Borrowers (as defined in the Original Credit Agreement) entering to and acceding to the Obligations under the Credit Agreement and other Transaction Documents as “Guarantors” and resigning in their capacity as Borrowers, with ANI remaining the sole Borrower after the Effective Time, (D) at the Effective Time, the Borrower simultaneously borrowing the Initial Term Loans and Tranche 2 Term Loans (each as defined in the Credit Agreement) and the simultaneous amendment and restatement of the terms of the Original Loans on the terms for Initial Term Loans set forth in the Credit Agreement such that after giving effect to this Agreement (and the simultaneous borrowings and amendments documented hereby) at the Effective Time, any Original Loans that were previously governed by the terms of the Original Credit Agreement shall be Initial Term Loans in the same principal amount held by ANI and ANI will have borrowed and the Lenders will hold Initial Term Loans and Tranche 2 Term Loans, in such amounts and of such Classes described next to such Lender’s percentage commitment for such Class and portion of such Loans as set forth opposite such Person’s name on Appendix A to the Credit Agreement and as more fully described in the Credit Agreement) (the foregoing transactions, the “Loan Amendment Transactions” and this Agreement and the other related documents effectuating the Loan Amendment Transactions described herein, the “Loan Amendment Transaction Documents”);

WHEREAS, in addition the Borrower has also requested that the parties hereto waive certain Events of Default occurring prior to the Effective Time as set forth herein; and

WHEREAS, each of the Lenders, the Agent and the Loan Parties have agreed to the limited consent and waiver set forth in Section 2 and Section 3 hereof and to amend, restate, supplement, reaffirm and modify the Credit Agreement and the other Transaction Documents as more specifically set forth herein;

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

1. Defined Terms. Capitalized terms used but not defined herein shall have the meanings assigned to them in the Credit Agreement or, if not defined therein, in the Original Credit Agreement.

2. Limited Waiver.

2.1 As of the Effective Date at the Effective Time, for so long as the Xxxxxx Xxxxxxx Subordination Agreement remains in effect, the Agent and each of the Lenders hereby waives each actual and prospective Default and Event of Default existing directly as a result of the non-payment of the Xxxxxx Xxxxxxx Note by the Borrower and the resulting event of default under the Xxxxxx Xxxxxxx Note existing prior to the date hereof and continuing hereafter under the Xxxxxx Xxxxxxx Note as a result thereof which the Lenders have actual knowledge of (the “Known Xxxxxx Xxxxxxx Defaults”); provided that the foregoing waiver shall be limited precisely as written and relates solely to the Known Xxxxxx Xxxxxxx Defaults in the manner they exist on the date hereof and may continue hereafter 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 Xxxxxx Xxxxxxx Default) at any time in respect of the Agreement or any other Loan Document. Nothing herein shall be deemed to constitute a waiver of any other term, provision or condition of the Agreement or any other Loan Document or prejudice any right or remedy that the Agent or any Lender may have or may in the future have.

2.2 As of the Effective Date at the Effective Time, for so long as the Xxxxxx Xxxxxxx Subordination Agreement remains in effect, the Agent and each of the Lenders hereby waives each Specified Event of Default (as defined in the Forbearance Agreement and Tenth Amendment to Second Amended and Restated Loan and Security Agreement dated as of September 22, 2020, by and among the the Loan Parties, the Prior Agent, and the Prior Lenders) (the “Known Existing Defaults”); provided that the foregoing waiver shall be limited precisely as written and relates solely to the Known Existing 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 Existing Default) at any time in respect of the Agreement or any other Loan Document. Nothing herein shall be deemed to constitute a waiver of any other term, provision or condition of the Agreement or any other Loan Document or prejudice any right or remedy that the Agent or any Lender may have or may in the future have.

3. Consent to the Loan Amendment Transactions. Each of the undersigned parties hereby consents to the consummation of the Loan Amendment Transactions and the execution of the Loan Amendment Transaction Documents on the terms and subject to the conditions contained herein and therein, including, but not limited to the fulfillment of the conditions precedent in Section 5 hereto.

4. Amendments to Credit Agreement and other Transaction Documents. Effective as of the Effective Date and at the Effective Time and substantially concurrently with giving effect to the consummation of the Loan Amendment Transactions:

4.1 the Original Credit Agreement (including all of the schedules, exhibits and annexes to the Original Credit Agreement) is hereby amended and restated and replaced in its entirety with the Credit Agreement set forth on Exhibit C hereto (including all of the schedules, exhibits and annexes attached thereto) and the Security Agreement set forth on Exhibit D hereto (including all of the schedules, exhibits and annexes attached thereto); and

4.2 each reference in the Credit Agreement and the other Transaction Documents to: (i) “this Agreement”, “the Loan Agreement”, a “Security Agreement” or a “US Security Agreement” or words of like import shall mean and be references to the Credit Agreement as amended hereby and/or, as the context may require, the Security Agreement, in each case, as amended, restated, amended and restated, supplemented or otherwise modified or replaced by this Agreement and the Security Agreement and the other Loan Amendment Transaction Documents entered into in connection herewith; (ii) “this Agreement”, “the Loan Agreement”, a “Security Agreement” or a “US Security Agreement” or words of like import shall mean and be references to the Credit Agreement as amended hereby and/or, as the context may require, the Security Agreement, in each case, as amended, restated, amended and restated, supplemented or otherwise modified or replaced by this Agreement and the Security Agreement and the other Loan Amendment Transaction Documents entered into in connection herewith; (iii) any “Loan Document” or “Transaction Document” or words of like import shall refer to the Credit Agreement or such Loan Document or Transaction Document, as amended pursuant to this Agreement and the other Loan Amendment Transaction Documents entered into in connection herewith, in each case, as amended, restated, amended and restated, supplemented or otherwise modified this Agreement; (iv) The “Note” or “Notes”, “the Loans”, “Obligations” or words of like import shall mean and be references to the Notes, Loans and Obligations issued and outstanding under the Credit Agreement and Transaction Documents as amended, restated, amended and restated, supplemented or otherwise modified by this Agreement; (v) “Agent” shall mean “DBFIP ANI LLC, a Delaware limited liability company, as successor by assignment to PACIFIC WESTERN BANK, a California, in its capacity as Successor Agent for the Lenders hereunder and any successor thereto in such capacity”; (vi) “Borrowers” or words of like import referring to the Original Borrowers, shall mean and be a reference to ANI in its capacity Borrower; (vii) “Guarantor” shall mean and be a reference to each of the Persons executing this Agreement as a Guarantor and any other Person that from time to time becomes a party to the Credit Agreement as a Guarantor; and (viii) “Loan Party”, the “Loan Parties” or words of like import referring to the Loan Parties shall mean and be a reference to ANI and each of the Guarantors.

5. Effectiveness. The waivers set forth in Section 2 hereof and the Credit Agreement, the Security Agreement and the amendments to the Transaction Documents set forth in Section 4 hereof shall become effective, as of the date hereof, upon the Lenders’ and the Agent’s satisfaction with each of the following conditions precedent (the time when all such conditions precedent have been waived or satisfied, the “Effective Time”):

5.1 The Agent (or its counsel) shall have each received the following:

(i)

counterparts of this Agreement that, when taken together, bear the signatures of (a) the Borrower, (b) each Guarantor, (c) the Lenders and (d) the Agent;

(ii)

duly executed copies of the Assignment Agreement, the Resignation Agreement and all attachments and schedules thereto; and

(iii)

duly executed originals, or where applicable copies or such other evidence in form and substance satisfactory to the Agent and the Lenders, that each of the documents and certificates and other conditions precedent set forth in Section 3.01 of the Credit Agreement and/or in the Closing Checklist attached as Exhibit E hereto shall have been duly executed, delivered, evidenced, waived and/or or otherwise satisfied.

(iv)

Evidence (in form and substance satisfactory to the Agent) that all of the fees, charges and expenses payable on the Effective Date to the (x) the Prior Agent and Prior Lenders and (y) the Agent and the Lenders (including fees and expenses of Xxxx Xxxxx LLP, Xxxxxxxx & Xxxxxxxx LLP, Xxxxxxxxx & Co., and AZB & Partners and each special counsel to the Administrative Agent and the Lenders) to the extent invoiced, plus such additional amounts of such fees, charges and disbursements as shall constitute Agent’s reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the Effective Date shall have been paid (or substantially contemporaneously with the Effective Time will be paid) (provided that such estimate shall not thereafter preclude a final settling of accounts as among the Borrower, the Prior Agent, Prior Lenders, Agent and/or the Lenders as applicable) in accordance with the terms of the Disbursement Letter.

5.2 After giving effect to the waivers and amendments contained herein and in the Credit Agreement, each of the representations and warranties of each Loan Party and Subsidiary which is a party to any Transaction Document contained in any Transaction 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 Effective Date, 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. No Secured Party or Loan Party shall have become aware of any material adverse new or inconsistent information or other matter which was not previously disclosed to any Secured Party.

5.3 The Agent and Lenders shall have received evidence, in form and substance satisfactory to them (in their sole discretion), that the Loan Amendment Transactions have been or substantially simultaneously with the effectiveness of this Agreement will be consummated in a manner satisfactory to the Agent and the Lenders and upon the effectiveness of this Agreement and the Loan Amendment Transactions, each of the Original Loans and other Obligations (as defined in the Original Credit Agreement) evidenced by the Original Credit Agreement shall have been assigned to the Lenders or have been terminated and, where required by the Agent, all guarantees therefor and security therefor shall be concurrently assigned (or with the Successor Agent’s consent, replaced with the security granted under the Transaction Documents) and the Agent and the Lenders shall have received in form and substance satisfactory to them, evidence of such assignments or replacements (including by release and replacement) of the Existing Transaction Documents and any other related documents (including any registrations, filings, notices or other documents necessary or desirable to release or evidence such assignment or replacement thereof).

Each Lender, by delivering its signature page to this Agreement and funding a Loan on the Closing Date, shall be deemed to have consented to, approved or accepted or to be satisfied with, the Credit Agreement, each Loan Amendment Transaction Document, each Transaction Document (as defined in the Credit Agreement) and each other document required hereunder or thereunder to be consented to, approved by or acceptable or satisfactory to a Lender, unless the Agent shall have received notice from such Lender prior to the Effective Time specifying its objection thereto.

6. Representations and Warranties; Ratification of Obligations; Reaffirmation of Guaranty and Transaction Documents. Each of the Loan Parties represents and warrants that after giving effect to the waivers, consents, amendments, amendments and restatements, supplements and modifications contained herein and in the other Transaction Documents to be entered into in connection herewith (collectively, the “Effective Date Supplements”) (a) (i) each of the representations and warranties set forth in Article V of the Credit Agreement and in each other Transaction Document 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 that has had or could reasonably be expected to have, a Material Adverse Effect and (b) each Loan Party (i) confirms its Obligations (including any guarantee obligations) under each Transaction Document, in each case as amended, supplemented or modified after giving effect to this Agreement and the Effective Date Supplements, (ii) confirms that the Loans and its Obligations as amended, supplemented or modified hereby under the Credit Agreement and the other Transaction Documents are entitled to the benefits of the Liens, security, pledges and guarantees, as applicable, set forth in the Transaction Documents, in each case, as amended, amended and restated, supplemented or modified after giving effect to this Agreement (including as such grants have been amended, supplemented or modified by this Agreement, the Security Agreement, the Transaction Documents and the Effective Date Supplements), (iii) confirms that the Loans and its Obligations under the Credit Agreement and Transaction Documents both before and after giving effect to the Effective Time constitute Obligations of the Loan Parties and (iv) agrees that the Loans and the Credit Agreement, the Security Agreement and the other Transaction Documents as amended, modified or supplemented hereby are the Loans, Credit Agreement, Security Agreement or as the context may require, the applicable Transaction Document under and for all purposes of the Transaction Documents. 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, amended and restated or modified hereby or by the Transaction Documents and/or the Effective Date Supplements), and such Obligations shall continue to be entitled to the benefits of the grant set forth in the Collateral Documents and the Transaction Documents, as amended, supplemented or modified hereby.

7. Further Assurances. Each of the undersigned Loan Parties, shall, at the request of the Agent and at such Loan Party’s own expense, do all such acts and things necessary or desirable to give effect to the amendments effected or to be effected pursuant to this Agreement.

8. 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 any 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 Transaction 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.

9. 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, any Loan Assignment Transaction Document or any other Transaction 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 Transaction 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 a Secured Party or their Affiliates or agents under the Transaction 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 Lender in connection with this Agreement or the other Transaction 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.

10. Reference to and Effect on the Transaction Documents. The execution, delivery and effectiveness of this Agreement shall not, except as expressly provided herein, operate as a waiver or novation of any Transaction Document or of any right, power or remedy of any Secured Party under any Transaction Document, nor constitute a waiver or novation of any provision of any of the Transaction Documents.

11. Incorporation of Terms. The provisions of Section 13.07 (Survival), Section 13.01 (Successors and Assigns), Section 13.02 (Costs and Expenses; Indemnification) and Section 13.05 (Amendments in Writing; Waiver; Integration) 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.

12. Notices. Any notice or request under this Agreement shall be given to each undersigned Loan Party at such party’s address set forth below, or at such other address as such party may hereafter specify in a notice given in the manner required under Section 12.01 of the Credit Agreement.

13. Headings. The headings of this Agreement are for purposes of reference only and shall not limit or otherwise affect the meaning hereof.

14. Counterparts. This Agreement may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Agreement. Delivery of an executed counterpart of a signature page to this Agreement by facsimile or in electronic (i.e., “pdf” or “tif”) format shall be effective as delivery of a manually executed counterpart of this Agreement, as applicable.

15. Governing Law; Consent to Jurisdiction; Waiver of Jury Trial. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD FOR ITS CONFLICTS OF LAWS PRINCIPLES. THE TERMS AND PROVISIONS OF SECTION 12.02 (GOVERNING LAW; SUBMISSION TO JURISDICTION) AND SECTION 12.03 (JURY TRIAL WAIVER) OF THE CREDIT AGREEMENT ARE HEREBY INCORPORATED BY REFERENCE AND SHALL APPLY TO THIS AGREEMENT MUTATIS MUTANDIS AS IF FULLY SET FORTH HEREIN.

16. APPOINTMENT OF PROCESS AGENT; SERVICE OF PROCESS. EACH PARTY TO THIS AGREEMENT IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 12.01 OF THE CREDIT AGREEMENT. EACH NON-U.S. LOAN PARTY IRREVOCABLY DESIGNATES AND APPOINTS THE BORROWER, WITH AN OFFICE ON THE EFFECTIVE DATE AT THE ADDRESS LISTED FOR BORROWER IN SECTION 12.01 OF THE CREDIT AGREEMENT, AS ITS AUTHORIZED AGENT, TO ACCEPT AND ACKNOWLEDGE ON ITS BEHALF, SERVICE OF ANY AND ALL PROCESS WHICH MAY BE SERVED IN ANY SUIT, ACTION OR PROCEEDING OF THE NATURE REFERRED TO IN SECTION 15 HEREOF OR IN ANY OTHER TRANSACTION DOCUMENT IN ANY FEDERAL OR NEW YORK STATE COURT SITTING IN NEW YORK CITY. EACH OF THE NON-U.S. LOAN PARTIES AND THE BORROWER HEREBY REPRESENTS, WARRANTS AND CONFIRMS THAT THE BORROWER HAS AGREED TO ACCEPT SUCH APPOINTMENT (AND ANY SIMILAR APPOINTMENT BY ANY OTHER NON-U.S. LOAN PARTY). SAID DESIGNATION AND APPOINTMENT SHALL BE IRREVOCABLE BY EACH SUCH NON-U.S. LOAN PARTY UNTIL ALL AMOUNTS PAYABLE BY SUCH NON-U.S. LOAN PARTY HEREUNDER AND UNDER THE OTHER TRANSACTION DOCUMENTS SHALL HAVE BEEN PAID IN FULL IN ACCORDANCE WITH THE PROVISIONS HEREOF AND THEREOF AND, AS APPLICABLE, SUCH NON-U.S. LOAN PARTY SHALL HAVE BEEN TERMINATED OR RELEASED AS A GUARANTOR PURSUANT TO THE TERMS OF THE APPLICABLE TRANSACTION DOCUMENTS. EACH NON-U.S. LOAN PARTY HEREBY CONSENTS TO PROCESS BEING SERVED IN ANY SUIT, ACTION OR PROCEEDING OF THE NATURE REFERRED TO IN SECTION 15 HEREOF OR IN ANY OTHER TRANSACTION DOCUMENT IN ANY FEDERAL OR NEW YORK STATE COURT SITTING IN NEW YORK CITY BY SERVICE OF PROCESS UPON THE BORROWER AS PROVIDED IN THIS SECTION 16. EACH NON-U.S. LOAN PARTY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL CLAIM OF ERROR BY REASON OF ANY SUCH SERVICE IN SUCH MANNER AND AGREES THAT SUCH SERVICE SHALL BE DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON SUCH NON-U.S. LOAN PARTY IN ANY SUCH SUIT, ACTION OR PROCEEDING AND SHALL, TO THE FULLEST EXTENT PERMITTED BY LAW, BE TAKEN AND HELD TO BE VALID AND PERSONAL SERVICE UPON AND PERSONAL DELIVERY TO SUCH NON-U.S. LOAN PARTY. TO THE EXTENT ANY NON-U.S. LOAN PARTY HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER FROM SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OF A JUDGMENT, EXECUTION OR OTHERWISE), EACH NON-U.S. LOAN PARTY HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THE TRANSACTION DOCUMENTS. NOTHING IN THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT WILL AFFECT THE RIGHT OF ANY PARTY TO THIS AGREEMENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.

[Remainder of the page left intentionally blank. Signature pages to follow.]

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 and as a Lender

	By:	/s/ Xxxxxxx Xxxxxx
	Name:	Xxxxxxx Xxxxxx
	Title:	Chief Financial Officer

[Signature Page to Reaffirmation Agreement and Omnibus Amendment Agreement]

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/ Xxxxx Xxxxx
	Name:	Xxxxx Xxxxx
	Title:	Chief Financial Officer

[Signature Page to Reaffirmation Agreement and Omnibus Amendment Agreement]

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

	LOAN PARTIES:

	AIRSPAN NETWORKS INC.,
	a Delaware corporation

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

	AIRSPAN IP HOLDCO LLC,
	a Delaware limited liability company

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

	AIRSPAN NETWORKS (SG) INC.,
	a Delaware corporation

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

	MIMOSA NETWORKS, INC. ,
	a Delaware corporation

	By:	/s/ Xxxxx Xxxxx
	Name:	Xxxxx Xxxxx
	Title:	Senior Vice President and Secretary

	MIMOSA NETWORKS INTERNATIONAL, LLC,
	a Delaware limited liability company

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

[Signature Page to Reaffirmation Agreement and Omnibus Amendment Agreement]

	AIRSPAN COMMUNICATIONS LIMITED,
	a United Kingdom corporation

	By:	/s/ Xxxxx Xxxxx
	Name:	Xxxxx Xxxxx
	Title:	Director

	AIRSPAN NETWORKS LTD.
	an Israel corporation

	By:	/s/ Xxxxx Xxxxx
	Name:	Xxxxx Xxxxx
	Title:	Director

	Airspan Japan KK,
	a Japanese corporation

	By:	/s/ Xxxxxx Xxxxx Xxxxxxxx
	Name:	Xxxxxx Xxxxx Xxxxxxxx
	Title:	CSMO and MD

[Signature Page to Reaffirmation Agreement and Omnibus Amendment Agreement]

Exhibit A

ASSIGNMENT AGREEMENT

[Exhibit filed separately as Exhibit 10.45 to the Registration Statement on Form S-4]

Exhibit B

RESIGNATION AGREEMENT

[Exhibit filed separately as Exhibit 10.46 to the Registration Statement on Form S-4]

Exhibit C

CREDIT AGREEMENT

(See attached)

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: [***]

CREDIT AGREEMENT

dated as of December 30, 2020

among

AIRSPAN NETWORKS Inc.,

as Borrower,

CERTAIN SUBSIDIARIES OF THE BORROWER,

as Guarantors,

THE LENDERS FROM TIME TO TIME PARTY HERETO

and

DBFIP ANI LLC,
as Administrative Agent and Collateral Agent

TABLE OF CONTENTS

	Page
Article I DEFINITIONS AND ACCOUNTING TERMS”C	2
Section 1.01 Defined Terms	2
Section 1.02 Other Interpretative Provisions	53
Section 1.03 Rounding	55
Section 1.04 Divisions	55
Section 1.05 Cashless Rolls	55
Section 1.06 Rates	55
Section 1.07 Currencies	55
Article II LOANS AND TERMS OF PAYMENT	56
Section 2.01 Term Loans	56
Section 2.02 Interest; Fees; Evidence of Debt; Payments	63
Section 2.03 Taxes.	67
Section 2.04 Ratable Sharing; Pro Rata Shares; Availability of Funds	71
Section 2.05 Making or Maintaining LIBO Rate Loans; Special LIBOR Provisions; Effect of Benchmark Transition Event	72
Section 2.06 Increased Costs; Capital Requirements	74
Section 2.07 Application of Prepayments/Reductions	74
Section 2.08 Defaulting Lenders	75
Section 2.09 Mitigation of Obligations; Replacement of Lenders	76
Article III CONDITIONS Precedent to the LOANs	78
Section 3.01 Conditions to the Closing Date and Closing Date Term Loan	78
Section 3.02 Conditions to all Loans after the Closing Date	82
Article IV WARRANT	84
Section 4.01 Warrant to Purchase Shares	84
Section 4.02 Tax Treatment	84
Article V REPRESENTATIONS AND WARRANTIES	84
Section 5.01 Existence, Qualification and Power	84
Section 5.02 Authorization; No Contravention	85
Section 5.03 Governmental Authorization; Other Consents	85
Section 5.04 Binding Effect	85
Section 5.05 Financial Statements; No Material Adverse Effect	85
Section 5.06 Litigation	85
Section 5.07 No Default	86
Section 5.08 Ownership of Property; Liens; Permits	86

Section 5.09 Environmental Compliance	86
Section 5.10 Insurance	87
Section 5.11 Taxes	87
Section 5.12 ERISA and Foreign Plans Compliance; Pensions	87
Section 5.13 Subsidiaries; Equity Interests	88
Section 5.14 Margin Regulations; Investment Company Act	88
Section 5.15 Disclosure	88
Section 5.16 Compliance with Laws	89
Section 5.17 Intellectual Property; Licensing	89
Section 5.18 Rights in Collateral; Priority of Liens	92
Section 5.19 Solvency	93
Section 5.20 Business Locations; Taxpayer Identification Number	93
Section 5.21 [Reserved]	93
Section 5.22 PATRIOT Act; Sanctions; Export Controls; FCPA	93
Section 5.23 Material Contracts	94
Section 5.24 Employee Matters	95
Section 5.25 No Regulatory Restrictions on Borrowing, Guarantees or Upstreaming Cashflows	95
Section 5.26 Rank of Debt	95
Section 5.27 No Set-off	95
Section 5.28 No Immunity; Proper Legal Form; No Need To Qualify Under each Relevant Jurisdiction or other Applicable Law	95
Section 5.29 Centre of Main Interests and Establishments	96
Section 5.30 Exchange Controls	96
Section 5.31 Customers and Suppliers	96
Section 5.32 Critical Technologies	96
Section 5.33 Products	97
Article VI AFFIRMATIVE COVENANTS	97
Section 6.01 Compliance with Laws	97
Section 6.02 Financial Statements	97
Section 6.03 Certificates; Other Information	99
Section 6.04 Notices	101
Section 6.05 Payment of Obligations	103
Section 6.06 Books and Records	103
Section 6.07 Inspection Rights	104
Section 6.08 Litigation Cooperation	104
Section 6.09 Use of Proceeds	104

Section 6.10 Preservation of Existence, Etc.	104
Section 6.11 Maintenance of Properties	104
Section 6.12 Collateral and Guarantee Requirements; Formation or Acquisition of Subsidiaries	105
Section 6.13 Insurance	105
Section 6.14 Conduct of Business and SPV Compliance	108
Section 6.15 Controlled Accounts; Cash Management Systems	110
Section 6.16 Lender Meetings	110
Section 6.17 [Reserved].	110
Section 6.18 Assigned Patents and Assigned Patent Rights	110
Section 6.19 Consent of Licensors	111
Section 6.20 Maintenance of Regulatory Permits, Contracts, Intellectual Property, Etc.	112
Section 6.21 Pari Passu Ranking	112
Section 6.22 Subsidiary Distributions; Upstreaming Cashflows; Investment Documents	112
Section 6.23 Critical Technologies	113
Section 6.24 Further Assurances	113
Section 6.25 Covenants Regarding Products and Compliance with Material Regulatory Permits	114
Section 6.26 Post-Closing Obligations	114
Article VII NEGATIVE COVENANTS	114
Section 7.01 Dispositions	114
Section 7.02 Changes in Business, Management, Ownership, or Business Locations	115
Section 7.03 Mergers or Acquisitions	116
Section 7.04 Liens	116
Section 7.05 Distributions; Investments	116
Section 7.06 Transactions with Affiliates	116
Section 7.07 Limitation on Negative Pledges	116
Section 7.08 Compliance	117
Section 7.09 Indebtedness	117
Section 7.10 Amendments to Organization Documents, Patent Assignment Agreement or Patent License Agreement, Accounting Methods and Fiscal Year	117
Section 7.11 Sanctions	117
Section 7.12 Patent Development and Enhancement	117
Section 7.13 Sales and Lease Backs	118
Section 7.14 Deposit Accounts	118
Section 7.15 Prepayments of Certain Indebtedness	118
Section 7.16 Financial Covenants	118

iii

Section 7.17 Pensions	119
Section 7.18 Centre of Main Interests and Establishment	119
Article VIII EVENTS OF DEFAULT	120
Section 8.01 Events of Default	120
Section 8.02 Rights and Remedies	123
Article IX Guaranty	124
Section 9.01 Guaranty of the Obligations	124
Section 9.02 Contribution by Guarantors	124
Section 9.03 Payment by Guarantors	125
Section 9.04 Liability of Guarantors Absolute	125
Section 9.05 Waivers by Guarantors	127
Section 9.06 Guarantors’ Rights of Subrogation, Contribution, etc.	128
Section 9.07 Subordination of Other Obligations	129
Section 9.08 Continuing Guaranty	129
Section 9.09 Authority of Guarantors or Borrower	129
Section 9.10 Collateral Matters	129
Section 9.11 Financial Condition of Borrower	129
Section 9.12 Bankruptcy, etc.	130
Section 9.13 Discharge of Guaranty Upon Sale of Guarantor	130
Article X AGENTS	131
Section 10.01 Appointment of Agents	131
Section 10.02 Powers and Duties	131
Section 10.03 General Immunity	131
Section 10.04 Agents Entitled to Act as Lender	132
Section 10.05 Delegation of Duties	132
Section 10.06 Lenders’ Representations, Warranties and Acknowledgment	133
Section 10.07 Right to Indemnity	133
Section 10.08 Successor Administrative Agent and Collateral Agent	134
Section 10.09 Collateral Documents and Guaranty	134
Section 10.10 Administrative Agent May File Proofs of Claim	135
Article XI [RESERVED]	136
Article XII NOTICES, GOVERNING LAW, SUBMISSION TO JURISDICTION, JURY TRIAL WAIVER, AND JUDICIAL REFERENCE	136
Section 12.01 Notices	136
Section 12.02 Governing Law; Submission to Jurisdiction	137
Section 12.03 Jury Trial Waiver	137
Section 12.04 Additional Waivers in the Event of Enforcement	137

Section 12.05 APPOINTMENT OF PROCESS AGENT; SERVICE OF PROCESS	138
Section 12.06 Borrower as Agent for Notice for Loan Parties	138
Section 12.07 Loan Party Agent	138
Article XIII GENERAL PROVISIONS	139
Section 13.01 Successors and Assigns; Participations	139
Section 13.02 Costs and Expenses; Indemnification	142
Section 13.03 Time of Essence	143
Section 13.04 Severability of Provisions	143
Section 13.05 Amendments in Writing; Waiver; Integration;	143
Section 13.06 Counterparts	145
Section 13.07 Survival	145
Section 13.08 Affiliate Activities	146
Section 13.09 Electronic Execution of Documents	146
Section 13.10 Captions	146
Section 13.11 Construction of Agreement	146
Section 13.12 Relationship	146
Section 13.13 Third Parties	146
Section 13.14 Payments Set Aside	147
Section 13.15 Right of Setoff	147
Section 13.16 Interest Rate Limitation	147
Section 13.17 Securitization of Loans; Appointment of Agent	147
Section 13.18 Confidentiality	148
Section 13.19 No Fiduciary Duty	149
Section 13.20 Judgement Currency	149
Section 13.21 Corporate Seal	149
Section 13.22 Location of Closing	150
Section 13.23 Waiver of Immunity	150
Section 13.24 Intercreditor Agreement	150
Section 13.25 Acknowledgement Regarding Any Supported QFCs	150
Section 13.26 English Language	151
Section 13.27 No Strict Construction	151
Section 13.28 Attachments	151
Section 13.29 Original Loans and Initial Term Loans	151

APPENDICES

Appendix A:	Commitment
Appendix B:	Principal Office

SCHEDULES

Schedule 1.01(b):	Guarantors
Schedule 1.01(s):	Series H Investors
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:	Employee Loans
Schedule 7.09:	Indebtedness

EXHIBITS

Exhibit A-1:	Notice of Borrowing
Exhibit A-2:	Conversion/Continuation Notice
Exhibit B:	Form of Note
Exhibit C:	Compliance Certificate
Exhibit D:	Patent Assignment Agreement
Exhibit E:	Patent License Agreement
Exhibit F:	Perfection Certificate
Exhibit G:	Warrant
Exhibit H:	Assignment and Assumption Agreement
Exhibit I:	Intercompany Subordination Agreement
Exhibit J:	Tax Certificates
Exhibit K:	Counterpart Agreement
Exhibit L:	Solvency Certificate
Exhibit M:	Board Observation Rights Letter
Exhibit N:	Softbank Intercreditor and Subordination Agreement
Exhibit O:	Disbursement Letter

[The foregoing schedules and exhibits have been omitted from this filing pursuant to Item 601(a)(5) of Regulation S-K.]

CREDIT AGREEMENT

THIS CREDIT AGREEMENT (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, this “Agreement”) dated as of December 30, 2020, is entered into by, among others, airspAn networks Inc., a Delaware corporation (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”), each Subsidiary of the Borrower listed as a “Guarantor” on the signature pages to the Reaffirmation and Omnibus Amendment Agreement (as defined below) on the date hereof 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 (Fortress, together with its successors and assigns in such capacity, the “Administrative Agent”) and as the collateral agent and trustee for the Lenders (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 Lenders party thereto entered into that certain Second Amended and Restated Loan and Security Agreement dated as of November 20, 2018 (as amended and as the same may be further amended, amended and restated, restated, supplemented or otherwise modified prior to the date hereof, the “Original Credit Agreement”), by and among, inter alia, the Borrowers (as defined therein), the other lenders and financial institutions party thereto and Pacific Western Bank (“PWB”), in its capacity as administrative agent and collateral agent and in connection with certain amendments to the Original Credit Agreement occurring on the date hereof, (i) PWB resigned in its capacity as Agent (as defined in the Resignation Agreement referred to below) under the Original Credit Agreement and all of the Transaction Documents (as defined in the Resignation Agreement) and Fortress became the Successor Agent (as defined in the Resignation Agreement) pursuant to the terms of that certain Resignation and Assignment Agreement (the “Resignation Agreement”), (ii) the lenders party to the Original Credit Agreement cancelled their commitments to make Revolving Loans (as defined in the Original Credit Agreement) and assigned their interests in all funded loans to the Lenders and (iii) pursuant to that certain Reaffirmation and Omnibus Amendment Agreement dated as of the date hereof (the “Reaffirmation and Omnibus Amendment Agreement”), (A) the Original Credit Agreement was amended and restated in its entirety and replaced with this Agreement and the Security Agreement, (B) the Subsidiaries of the Initial Borrower that were parties to the Original Credit Agreement as Borrowers (as defined in the Original Credit Agreement) resigned in their capacity as Borrowers (as defined in the Original Credit Agreement) and became Guarantors under the Credit Agreement and the other Transaction Documents (as defined in the Reaffirmation and Omnibus Amendment Agreement), (C) the Borrower simultaneously borrowed the Initial Term Loans and Tranche 2 Term Loans (each as defined herein) and each of the Lenders agreed to amend and restate the terms of the existing Loans (as defined in the Original Credit Agreement) (the “Original Loans”) on the terms for Initial Term Loans set forth herein such that after giving effect to the Reaffirmation and Omnibus Amendment on the Closing Date, any Original Loans that were previously governed by the terms of the Original Credit Agreement shall be Initial Term Loans in the same principal amount held by the Borrower and the Borrower will have borrowed and the Lenders will hold Initial Term Loans and Tranche 2 Term Loans, such that after giving effect to such amendments and borrowings, the then outstanding Loans of each Class are held ratably by the Lenders of such Class in accordance with such Lender’s percentage commitment for such Class and portion of the Loans as set forth opposite such Person’s name on Appendix A (the foregoing Loan Amendment Transactions and the other related documents and incidental steps, filings, transfers and actions effectuating the Loan Amendment Transactions described herein and in the Resignation Agreement and Reaffirmation and Omnibus Amendment Agreement, the “Loan Amendment Transaction Documents”);

WHEREAS, the Initial Borrower has also requested and the Lenders have agreed to extend credit from time to time in the form of Delayed Draw Term Loans (as defined herein) in the amounts set forth in the schedule of Delayed Draw Term Loan Commitments on Appendix A hereto upon the terms and subject to conditions set forth herein and to be used solely for the purposes set forth in Section 6.09 hereof; and

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:

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).

“Administrative Agent” is defined in the preamble.

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

“Adverse Proceeding” means any action, suit, proceeding (whether administrative, judicial or otherwise), governmental investigation or arbitration (whether or not purportedly on behalf of Borrower 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 Borrower or any of its Subsidiaries, threatened against or affecting Borrower or any of its Subsidiaries or any property of Borrower or any of its Subsidiaries.

“Affected Lender” is defined in Section 2.05(b).

“Affected Loans” is defined in Section 2.05(b).

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

“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 Payments” is defined in Section 9.02.

“Agreement” is defined in the preamble.

“Agreement Currency” is defined in Section 13.20.

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

“Applicable Prepayment Premium” means, as the context may require, the Prepayment Premium and/or the Yield Maintenance Premium.

“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 and the Delayed Draw Term Loan:

(i) From the Closing Date until the first Financial Statement Delivery Date to occur after the Closing Date (the “Initial Applicable Rate Period”), the relevant Applicable Rate shall be set at Level V in the table below. After the Initial Applicable Rate Period, the relevant Applicable Rate shall be set at the respective level indicated below based upon the Borrower’s Net EBITDA Leverage Ratio for the Test Period for which such financial statements were delivered as of the Financial Statement Delivery Date:

Level	Net EBITDA Leverage Ratio	Base Rate Loan	LIBO Rate 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 5.50% and the Margin PIK Component shall be 0.50%	The Applicable Rate shall be the LIBO Rate plus 7.00% per annum, of which the Margin Cash Component shall be 5.50% and the Margin PIK Component shall be 1.50%
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 7.00% per annum, of which the Margin Cash Component shall be 5.50% and the Margin PIK Component shall be 1.50%	The Applicable Rate shall be the LIBO Rate plus 8.00% per annum, of which the Margin Cash Component shall be 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 5.50% and the Margin PIK Component shall be 2.50%	The Applicable Rate shall be the LIBO Rate plus 9.00% per annum, of which the Margin Cash Component shall be 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 5.50% and the Margin PIK Component shall be 3.50%	The Applicable Rate shall be the LIBO Rate plus 10.00% per annum, of which the Margin Cash Component shall be 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 5.50% and the Margin PIK Component shall be 4.50%	The Applicable Rate shall be the LIBO Rate plus 11.00% per annum, of which the Margin Cash Component shall be 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 Borrower to the Administrative Agent and the Secured Parties. 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.

(b) With respect to the Tranche 2 Term Loan, the relevant Applicable Rate shall be five percent (5.00%).

(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”): (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) or Section 6.03(b) 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 (c)(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 any Transfer pursuant to Section 7.01(a) or to the extent not permitted hereunder.

“Asset Security Providers” means the Borrower and any Subsidiary that becomes a Loan Party and provides asset security from time to time pursuant to the requirements of Section 5 to the Reaffirmation and Omnibus Amendment Agreement, 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);

(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;

(i) 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

(j) 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, Borrower or any Subsidiary 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, Borrower or any Subsidiary, including Patents that are the subject of Section 6.18.

“Assigned Trade Secrets” means all Trade Secrets (a) owned by Borrower or any Subsidiary and or (b) that are hereafter acquired by Borrower or any Subsidiary 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.

“Audited Financial Statements” means the audited consolidated balance sheet of Borrower and its Subsidiaries on a consolidated basis for the fiscal year ended 2019, 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, 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 any qualification or exception as to the scope of such audit.

“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) the LIBO Rate 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 or the Federal Funds Effective Rate shall be effective on the effective day of such change in the Prime Rate or the Federal Funds Effective Rate, 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.

“Benchmark Replacement” means the sum of: (a) the alternate benchmark rate (which may include Term SOFR) that has been selected by Administrative Agent in consultation with Borrower giving due consideration to (i) any selection or recommendation of a replacement rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a rate of interest as a replacement to LIBOR for Dollar-denominated syndicated credit facilities and (b) the Benchmark Replacement Adjustment; provided that, if the Benchmark Replacement as so determined would be less than zero, the Benchmark Replacement will be deemed to be zero for the purposes of this Agreement.

“Benchmark Replacement Adjustment” means, with respect to any replacement of LIBOR with an Unadjusted Benchmark Replacement for each applicable Interest Period, 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 Administrative Agent in consultation with Borrower (A) giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of LIBOR with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (ii) 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 LIBOR with the applicable Unadjusted Benchmark Replacement for Dollar denominated syndicated credit facilities at such time and (B) adjusting the pricing to reduce or eliminate, to the extent reasonably practicable, any transfer of economic value from one party to another as a result of the application of that Benchmark Replacement (and if any adjustment or method for calculating any adjustment has been formally designated, nominated or recommended by the Relevant Governmental Body, the adjustment shall be determined on the basis of that designation, nomination or recommendation).

“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest and other administrative matters) that Administrative Agent decides may be appropriate to reflect the adoption and implementation of such Benchmark Replacement, to eliminate or reduce the transfer of economic value from one party to another as a result of such Benchmark Replacement and to permit the administration thereof by Administrative Agent in a manner substantially consistent with market practice (or, if Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if Administrative Agent determines that no market practice for the administration of the Benchmark Replacement exists, in such other manner of administration as Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement).

“Benchmark Replacement Date” means the earlier to occur of the following events with respect to LIBOR: (1) in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of LIBOR permanently or indefinitely ceases to provide LIBOR; or (2) in the case of clause (3) of the definition of “Benchmark Transition Event,” the date of the public statement or publication of information referenced therein.

“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to LIBOR: (1) a public statement or publication of information by or on behalf of the administrator of LIBOR announcing that such administrator has ceased or will cease to provide LIBOR, permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide LIBOR; (2) a public statement or publication of information by the regulatory supervisor for the administrator of LIBOR, the U.S. Federal Reserve System, an insolvency official with jurisdiction over the administrator for LIBOR, a resolution authority with jurisdiction over the administrator for LIBOR or a court or an entity with similar insolvency or resolution authority over the administrator for LIBOR, which states that the administrator of LIBOR has ceased or will cease to provide LIBOR permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide LIBOR; or (3) a public statement or publication of information by the regulatory supervisor for the administrator of LIBOR announcing that LIBOR is no longer representative.

“Benchmark Transition Start Date” means (a) in the case of a Benchmark Transition Event, the earlier of (i) the applicable Benchmark Replacement Date and (ii) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the ninetieth (90th) day prior to the expected date of such event as of such public statement or publication of information (or if the expected date of such prospective event is fewer than ninety (90) days after such statement or publication, the date of such statement or publication) and (b) in the case of an Early Opt-in Election, the date specified by Administrative Agent or the Requisite Lenders, as applicable, by notice to Borrower, Administrative Agent (in the case of such notice by the Requisite Lenders) and each Lender.

“Benchmark Unavailability Period” means, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to LIBOR and solely to the extent that LIBOR has not been replaced with a Benchmark Replacement, the period (x) beginning at the time that such Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced LIBOR for all purposes hereunder in accordance with Section 2.05(f) and (y) ending at the time that a Benchmark Replacement has replaced LIBOR for all purposes hereunder pursuant to Section 2.05(f).

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

“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 to be delivered by Borrower to the Administrative Agent on the Closing 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.

“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 LIBO Rate 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 Closing Date and ending on the earliest of:

(a) the twenty-fourth (24th) month after the Closing Date, with respect to the Delayed Draw Term Loans;

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

“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 and, if such day relates to any LIBO Rate Loan, means any such day on which dealings in Dollar deposits are conducted by and between banks in the London interbank market.

“Business Combination” means the merger, combination or consolidation of Borrower 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 Borrower or any of its Subsidiaries.

“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.

“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.”

"CARES Act - Title I" means Title I of the Coronavirus Aid, Relief and Economic Security Act, as amended (including any successor thereto), and all requests, rules, guidelines, requirements and directives thereunder or issued in connection therewith or in implementation thereof, regardless of the date enacted, adopted, issued or implemented.

“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 Xxxxx’x 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 Xxxx-Xxxxx Xxxx 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 date hereof 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 date hereof.

“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 eighty percent (80%) on a fully diluted basis of the aggregate outstanding voting and economic power of the Equity Interests of Borrower (inclusive of warrants and other convertible instruments) owned by the Key Investors on the Closing 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 Borrower, by contract or otherwise) of in excess of fifty percent (50%) of the Equity Interests of Borrower, (iii) Borrower 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, the Borrower 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 Borrower (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 any Material Indebtedness (other than the Obligations) of Borrower or any of its Subsidiaries.

“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 (ii) Delayed Draw Term Loans.

“Closing Date” means December 30, 2020.

“Closing Date Collateral Documents” means each of the following:

(a) the Security Agreement;

(b) each IP Security Agreement; and

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

(a) the Agent shall have received each Collateral Document required to be delivered (i) on the Closing Date, pursuant to Section 3.01, the Resignation Agreement and Exhibit E of the Reaffirmation and Omnibus Amendment Agreement and (ii) at such time as may be designated therein, pursuant to 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 Obligations shall have been unconditionally guaranteed by each Subsidiary of the Borrower organized or formed in an Asset Security Jurisdiction (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 the Borrower or any Subsidiary Guarantor;

(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 Borrower 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 Borrower 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;

(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 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 the Borrower or any Subsidiary Guarantor, (g) for 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.

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 Agent” is defined in the preamble.

“Collateral Documents” means each of the Loan Documents existing immediately prior to the Closing Date (including the Loan Assignment Documents, the Resignation Agreement, the documents described in Exhibit E of the Reaffirmation and Omnibus Amendment Agreement and the original Loan Documents (as defined in the Original Credit Agreement) to which they relate and which are intended to be amended and assigned in accordance with the terms of the Resignation Agreement), the Closing Date Collateral Documents, the UK Security Documents, the Israeli Security Documents, the Rakuten Receivables Assignment Agreement, 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 from time to time 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 or xxxxx x Xxxx 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(l).

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

“Conduct of Business Provisions” is defined in Section 6.14.

“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 Borrower 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 Borrower 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 Borrower 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 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 the Borrower 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 the Borrower and its Subsidiaries and payable in cash with respect to such period, plus (v) to the extent added back to EBITDA, the amount of fees or expenses paid in cash during such period in connection with the preparation of the Loan Documents and the Transactions in connection therewith on or about the Closing Date.

“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 Borrower 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 Borrower 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.

“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.

“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 xxx for past, present and future infringement or other violation thereof.

“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, C.F.R. § 382.2(b).

“Covered Party” has the meaning assigned to it in Section 13.25(b).

“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.

“De Minimis Accounts” has the meaning assigned in the definition of “Collateral and Guarantee Requirements.”

“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, 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.

“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.

“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 the LIBO Rate or Base Rate, as applicable, plus the Applicable Default Interest Rate.

“Default Rights” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.

“Deficient Assigned Patents” has the meaning assigned to that term in Section 5.17(d).

“Delayed Draw Funding Conditions” means a determination as of the date of Administrative Agent’s receipt of a Notice of Borrowing that the Gross EBITDA Leverage Incurrence Ratio does not exceed 4.00:1:00.

“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 Closing Date is Twenty Million Dollars ($20,000,000.00).

“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.

“Dense Air Group” means Dense Air Limited and its subsidiaries.

“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” has the meaning given to that term in Section 5.22(b)(v).

“Disbursement Letter” means the disbursement letter in the form attached hereto as Exhibit O.

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

“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 Borrower 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).

“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 Borrower 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.

“Early Opt-in Election” means the occurrence of: (1) (i) a determination by Administrative Agent or (ii) a notification by the Requisite Lenders to Administrative Agent (with a copy to the Borrower) that the Requisite Lenders have determined that Dollar-denominated syndicated credit facilities being executed at such time, or that include language similar to that contained in Section 2.05(f) are being executed or amended, as applicable, to incorporate or adopt a new benchmark interest rate to replace LIBOR, and (2) (i) the election by Administrative Agent or (ii) the election by the Requisite Lenders to declare that an Early Opt-in Election has occurred and the provision, as applicable, by Administrative Agent of written notice of such election to the Borrower and the Lenders or by the Requisite Lenders of written notice of such election to Administrative Agent.

“EBITDA” means with respect to the Borrower and its consolidated Subsidiaries for any applicable period, on a consolidated basis, the net income of Borrower for such period, increased, without duplication, by the following, in each case (only to the extent (and in the same proportion) deducted (and not added back or excluded) in determining consolidated net income for such period): interest (including amounts referred to in Section 2.02(b)), taxes, depreciation, non-cash stock compensation expenses, non-recurring costs and expenses directly incurred before or within 120 days following the Closing Date in connection with the preparation of the Loan Documents and the Transactions occurring on or about the Closing Date under the Loan Documents, and other noncash amortization expenses, in each case, determined in accordance with GAAP. To the extent, the $2,072,000 PPP Loan was or is treated as a gain on the financial statements of the Borrower, it is understood and agreed, that for purposes of this Agreement, no corresponding reversal of this gain needs to be applied or recognized when calculating EBITDA in the period so forgiven.

“Effective Time” shall have the meaning given to such term in the Reaffirmation and Omnibus Amendment.

“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 equal to two and one half percent (2.5%) of the principal balance of the Loans and any other Obligations advanced or otherwise owed hereunder, including, without limitation, any fees, the capitalized interest and any Applicable Prepayment Premiums.

“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 Borrower or any of its Subsidiaries or any Facility owned, leased or operated by Borrower 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.

“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 date hereof 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 Borrower or any Borrower 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 Borrower, either Borrower or any ERISA Affiliate 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 Article VIII.

“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).

“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 or any of its 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”.

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

“Existing Indebtedness” means Indebtedness and other obligations outstanding under the Original Credit 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 Borrower or any Subsidiary 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 Borrower 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 date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations 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

“Federal Reserve Bank of New York’s Website” means the website of the Federal Reserve Bank of New York at xxxx://xxx.xxxxxxxxxx.xxx or any successor source.

“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 Borrower delivers or is required to deliver its 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.

“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 the Borrower 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).

“Fortress” is defined in the Preamble to the Agreement.

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

“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.

“Funding Guarantor” is defined in Section 9.02.

“GAAP” means (a) in the case of 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.

“Xxxxxx Xxxxxxx 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 Xxxxxx Xxxxxxx Limited.

“Xxxxxx Xxxxxxx Subordination Agreement” means that certain Subordination Agreement dated August 6, 2015 and executed by Xxxxxx Xxxxxxx Limited with respect to the Borrower’s obligations under the Xxxxxx Xxxxxxx Note, as the same has been amended, amended and restated, restated, supplemented or otherwise modified from time to time pursuant to which Xxxxxx Xxxxxxx agreed to subordinate the Indebtedness evidenced by the Xxxxxx Xxxxxxx 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).

“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.

“Gross EBITDA Leverage Incurrence Ratio” means, with respect to the Borrower and its consolidated Subsidiaries, as of any date of determination, the ratio of (a) the total outstanding principal amount of the Loans after giving pro forma effect to the borrowing of the Delayed Draw Term Loan requested under the applicable Notice of Borrowing to (b) the total EBITDA of the Borrower and its consolidated Subsidiaries for the most recently ended Test Period.

“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.

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

“Guarantor” means each Subsidiary of Borrower listed on Schedule 1.01(b) hereto and each other Subsidiary of the Borrower organized or formed in an Initial Asset Security Jurisdiction and each other Subsidiary that guarantees the Obligations (other than the Dense Air Group, Subsidiaries of the Borrower organized in India or, for so long as such Subsidiaries remain Immaterial Foreign Subsidiaries, Immaterial Foreign Subsidiaries organized in non-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.

“Harmful Code” is defined in Section 5.17(f).

“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.

“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.

“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 the Borrower 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 the Borrower 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 the Borrower 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).

“Indebtedness” means, as applied to any Person, 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.

“Indemnitee” is defined in Section 13.02(b).

“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 xxxxx 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.

“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 Term Loan” means a loan made by Lender pursuant to Section 2.01(a)(i)(A)(x).

“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.

“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; provided, at any time prior to the making of the Initial Term Loans, the Initial Term Loan Exposure of each Lender shall be equal to such Lender’s Initial Term Loan Commitment.

“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 an Intercompany Subordination Agreement substantially in the form of Exhibit I, as the same may be amended, amended and restated, restated, supplemented or otherwise modified from time to time.

“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 a LIBO Rate Loan, an interest period of one (1) month 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 Borrower and its Subsidiaries’ operations, (ii) approved by Administrative Agent, and (iii) not for speculative purposes

“Interest Rate Determination Date” means, with respect to any Interest Period, the date that is two (2) Business Days prior to the first day of such Interest Period.

“Inventory” is all “inventory” as defined in the UCC in effect on the date hereof 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 Closing Date, will have 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 will be 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.

“IP Hold-Co Operating Agreement” means that certain Operating Agreement entered into by IP Hold-Co, the Borrower and the Agent in its capacity as the Fortress Member.

“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 Borrower Trademarks Fixed Charge Pledge” means the Israeli law fixed charge debenture, dated as of the Closing Date, 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 on or about the Closing Date, 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 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 as of the Closing Date, 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 Security Documents” means the Israeli Floating Charge Debenture, Israeli Borrower Trademarks Fixed Charge Pledge, Israeli IP Hold-Co Fixed Charge Pledge and the Israeli 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 on or about the Closing Date, 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.

“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 the Continuing Guaranty from Prior Lenders to Lenders with acknowledgement by the Japanese Guarantor; (b) the Assignment of Assignment of Receivables from Prior Lenders to Lenders with acknowledgement by Japanese Guarantor; and (c) the Consent to Assignment of Assignment of Receivables from Rakuten Mobile, Inc. of Rakuten Receivables Assignment Agreement and (d) each other Japanese law governed Collateral Document entered into from time to time.

“Judgment Currency” is defined in Section 13.21.

“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 as a Lender, and any other Person that becomes a party hereto pursuant to an Assignment Agreement.

“Liabilities” is defined in Section 13.17.

“LIBO Rate” means for an Interest Period, the greater of one half of one percent (0.5%) or (a) the LIBOR Index Rate for such Interest Period, if such rate is available, and (b) if the LIBOR Index Rate cannot be determined, the arithmetic average of the rates of interest per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) at which deposits in Dollars in immediately available funds are offered to the Lenders at 11:00 a.m. (London, England time) two (2) Business Days before the beginning of such Interest Period by three (3) or more major banks in the interbank eurodollar market selected by the Lenders for delivery on the first day of and for a period equal to such Interest Period and in an amount equal or comparable to the principal amount of any Loan.

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

“LIBOR Index Rate” means, for any Interest Period, the offered rate per annum (rounded upwards, if necessary, to the next higher one hundred-thousandth of a percentage point (0.00001%)) for deposits in Dollars for a period of one (1) month, which appears in the ICE Benchmark Administration (or any other Person that takes over the administration of such rate) and obtained through a nationally recognized service such as the Dow Xxxxx Market Service (Telerate) or Reuters (or on any successor or substitute page on such screen that displays such rate, or on the appropriate page of such other information service that publishes such rate from time to time as selected by the Administrative Agent in its sole discretion), or a comparable or successor rate that has been approved by the Requisite Lenders, at approximately 11:00 a.m., London time, two (2) Business Days prior to the commencement of such Interest Period.

“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 xxx) 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” is defined in IP Hold-Co Operating Agreement.

“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.

“Loan Amendment Transactions” has the meaning given 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.

“Loan Amendment Transaction Documents” is defined in the recitals.

“Loan Documents” means this Agreement, the Disclosure Schedules, the Board Observation Rights Letter, the Notes, the Warrant, each Subordination Agreement, the Reaffirmation and Omnibus Amendment Agreement, the Loan Amendment Transaction Documents, the Perfection Certificate, the Compliance Certificate, each Collateral Document, 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 Parties” means each Borrower and Guarantor.

“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 Borrower 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 the Borrower 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 Borrower or any Subsidiary of Borrower that is material to the business of Borrower and its Subsidiaries, taken as a whole.

“Material License” shall have the meaning assigned to such term in Section 5.17(a).

“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.

“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.

“Maturity Date” means the earlier of (i) December 30, 2024 and (ii) the date that all Loans and other Obligations shall become due and payable in full hereunder, whether by acceleration or otherwise.

“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 6.15 as applicable.

“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, 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 Borrower 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 the Borrower or Indebtedness (excluding Permitted Indebtedness), the aggregate cash proceeds received by Borrower 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 (including the payment of the Pacific Western Success Fee to PWB).

“Net EBITDA Leverage Ratio” means, with respect to the Borrower 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 the Borrower and its consolidated Subsidiaries for the most recently ended Test Period.

“No Call Period” means with respect to any Loans made on or after the Closing Date, the period on or prior to the first (1^st) anniversary of the applicable Borrowing Date.

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

“Non-Loan Party Subsidiary” means any Subsidiary of the Borrower 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.

“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 Exhibit E of the Reaffirmation and Omnibus Amendment Agreement, Section 3.01, or Section 3.02, in each case 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 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 other obligations (including expense reimbursement and indemnification) of each Loan Party under the Loan Documents (other than the Warrant) whether for principal, interest, fees, expenses, prepayment premiums, any Applicable Prepayment Premium, the End of Term Fee, the Administration Fee, the Origination Fees, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, including all interest that accrues (a) during an Event of Default or (b) after the commencement of any Insolvency Proceeding, whether or not allowed or allowable in such Insolvency Proceeding.

“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 Borrower 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” is defined in the recitals.

“Original Loans” is defined in the recitals.

“Origination Fee” has the meaning given to such term in Section 2.02(b)(i)(B).

“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.

“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 (the “Pacific Western Success Fee”) 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).

“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 USC §§ 1 et seq, (ii) the UK law applicable to patents commonly known as the Patents Xxx 0000 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 in the form attached hereto as Exhibit D.

“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 in the form attached hereto as Exhibit E.

“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.

“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 xxx 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 Borrower or any ERISA Affiliate or to which Borrower 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 in the form attached hereto as Exhibit F.

“Permitted Indebtedness” means:

(i) the Obligations;

(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 for the Borrower and its Subsidiaries 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 to the extent constituting Indebtedness;

(iv) (A) unsecured Indebtedness incurred by Borrower 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 Borrower 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 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 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 or (ii) to purchase, redeem, convert or otherwise exchange such Indebtedness solely for Equity Interests in the Borrower), (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 or direct or indirect obligors who are not also obligors and security providers on the Loans and (ii) any Permitted Refinancing thereof so long as such Permitted Refinancing complies with clauses (x) through (z) above;

(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) to the extent constituting Indebtedness, the Pacific Western Success Fee; provided that the amount of such Indebtedness does not at any time exceed the amount set forth in the Pacific Western Fee Letter as in effect on the Closing Date;

(viii) Indebtedness described in Schedule 7.09 on the Closing 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 date of this Agreement, 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, (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 the Borrower), (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”); and

(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.

(x) the PPP Loan in an aggregate principal amount not to exceed the amount of such Indebtedness on the Closing Date; provided that such Indebtedness is unsecured and the Loan Parties make all such submissions as are necessary or desirable to cause such Indebtedness to be forgiven in accordance with the requirements of CARES Act – Title I;

(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 the Borrower or 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 Xxxxxx Xxxxxxx 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 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 Two Hundred and Fifty Thousand Dollars ($250,000); and

(xvi) other unsecured Indebtedness of Borrower or any Subsidiary other than the types listed in (i) through (xv) 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.”

“Permitted Investments” means:

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

(ii) 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 Borrower 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 any Investments made after the Closing Date in or by Airspan Networks (Beijing) Co. Ltd (“Airspan China”) shall not be Permitted Intercompany Investments and 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 Closing 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;

(vii) (a) loans and advances to employees of Borrower 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 Borrowers 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 Lenders 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);

(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 Borrower and its Subsidiaries portions or all of one or more of their products and other intellectual property rights, in each case granted by Borrower 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 Borrower or such Subsidiary or the rights and remedies of the Secured Parties under the Loan Documents;

(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 Borrower 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 Borrower’s 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(h);

(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;

(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 Closing 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 Subordinated 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) [Reserved];

(xviii) Liens in connection with Indebtedness permitted pursuant to clause (xiv) of the definition of Permitted Indebtedness and Permitted Refinancing of such Indebtedness;

(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 Borrowers and their Subsidiaries, which shall not at any time exceed an aggregate amount of One Million Dollars ($1,000,000) for the Borrower 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 the Borrower’s 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 Lender as a loss payee or additional insured thereunder;

(xxi) Lien granted by Airspan Communications Limited to Softbank Group International Limited on five percent (5%) of the Equity Interest of Dense Air Limited and related security as described in the Softbank Loan Documents (as in effect on the Closing Date);

(xxii) other Liens on assets other than the Collateral and other than the types listed in clause (i) through (xxi) 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.

“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 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 Obligations.

“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 6.26.

“PPP Loan” means the Indebtedness represented by the Promissory Note issued by Airspan Networks Inc. to First Home Bank on April 27, 2020.

“Prepayment Event” means the occurrence of any of the following events prior to the applicable Loan’s Maturity Date: (a) any of the principal balance of the applicable Loans are refinanced, repaid, prepaid 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, (b) any Loans are satisfied as a result of a foreclosure sale, deed in lieu or by any other means, (c) the relevant Obligations are accelerated in accordance with Article VIII or by operation of law, (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 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.

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

“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.

“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 Borrower 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.

“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.

“PWB” is defined in the recitals.

“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).

“QFC Credit Support” has the meaning assigned to it in Section 13.26.

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

“Rakuten Receivables Assignment Agreement” means that certain Assignment of Receivables for Security Purposes between Japanese Guarantor, the Lenders and the Administrative Agent, dated as of the Closing Date.

“Reaffirmation and Omnibus Amendment Agreement” is defined in the recitals.

“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.

“Register” is defined in Section 13.01(c).

“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.

“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.

“Regulation” is defined in Section 5.29.

“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.

“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 and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/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

“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.

“Required Prepayment Date” has the meaning assigned to it in Section 2.07(b).

“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” is defined in the recitals.

“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).

“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 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.

“Secured Parties” means (a) the Lenders, (b) the Agents, (c) any Receiver or Delegate (each as defined in the Security Trust Deed), (d) the beneficiaries of each indemnification obligation undertaken by any Loan Party under any Loan Document and (e) 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 Security Agreement dated as of the date hereof by and among the Lenders and the Loan Parties.

“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 hereafter delivered 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 date hereof appointing the Collateral Agent as trustee for the Secured Parties.

“Series H Equity Interests” means the Series of the Borrower’s Convertible Preferred Stock, par value U.S. $0.0001 per share, entitled Series H Senior Preferred Stock.

“Series H Investment” means the purchase of up to $20,000,046 of Series H Preferred Stock by the persons set forth on Schedule 1.01(s) and the other purchasers of Series H Preferred Stock that become a party to the Purchase Agreement following the Closing Date on the terms and subject to the conditions set forth in the Series H Investment Documents.

“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” with respect to any day shall mean the secured overnight financing rate published for such day by the Federal Reserve Bank of New York, as the administrator of the benchmark, (or a successor administrator) on the Federal Reserve Bank of New York’s Website.

“SoftBank” means Softbank Group Corp.

“Softbank Group” means any Person controlling, controlled by or under common control with SoftBank 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 Subordination Agreement” means that certain Intercreditor and Subordination Agreement of even date herewith 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, in substantially the form set forth hereto as Exhibit N.

“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.

“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.

“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 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 the Borrower that does not hold any assets, conduct any business operations, generate any revenue or carry Indebtedness, or make Investments.

“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.

“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 Xxxxxx Xxxxxxx Subordination Agreement and (iv) each other subordination agreement or other evidence of subordination of Indebtedness of the Borrower 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.

“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 the Borrower and shall in any event include any other Person whose revenues and expenses are included in the consolidated financial statements of the Borrower, but unless specified otherwise shall not be a reference to and shall not include Dense Air Limited or any of its 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 Agent.

“Supported QFC” has the meaning assigned to it in Section 13.26.

“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.

“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.

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

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

“Term SOFR” means the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.

“Test Period” shall mean, as of any date of determination, the period of twelve consecutive months of the Borrower (taken as one accounting period) (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.

“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 xxx for past, present and future infringement, dilution or other violation thereof.

“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 xxx for past, present and future misappropriation or other violation thereof.

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

“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.

“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; provided, at any time prior to the making of the Tranche 2 Term Loan, the Tranche 2 Term Loan Exposure of each Lender shall be equal to such Lender’s Tranche 2 Term Loan Commitment.

“Transactions” shall mean, collectively, the transactions to occur pursuant to the Loan Documents and the Transaction Documents on or about the Closing Date, including (a) the execution and delivery of the Reaffirmation and Omnibus Amendment Agreement and the Transaction Documents and the initial Borrowings hereunder, (b) the consummation of the Series H Investment, (c) the issuance of Series H Equity Interests and Warrants to the initial Lenders, (d) 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 and the other Loan Amendment Transaction Documents, (e) 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, (f) the execution, delivery and filing in the USPTO of corrective inventor assignments relating to the material Deficient Assigned Patents, (g) all other reasonable incidental steps and actions required to facilitate the transactions described in clauses (a) though (f) above, and (h) the payment of fees and expenses in connection with the foregoing.

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

“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)).

“Type” means a Base Rate Loan or a LIBO Rate 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 organized 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 (other than Equity Interests and assets relating to the Dense Air Group) dated as of the date hereof, (b) the English law governed share charge over shares in Airspan Communications Limited by the Initial Borrower, dated as of the date hereof, (c) the Security Trust Deed and (d) any other English law governed Collateral Documents entered into from time to time.

“Unadjusted Benchmark Replacement” means the Benchmark Replacement excluding the 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 Borrower and its Loan Party Subsidiaries and held in any Controlled Account in the United States 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 Borrower or any of its Subsidiaries in escrow, trust or other fiduciary capacity for or on behalf of a client, borrower or customer of Borrower, its Subsidiaries or any of their respective Affiliates.

“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” has the meaning assigned to it in Section 13.25(a).

“U.S. Tax Compliance Certificate” shall have the meaning set forth in Section 2.03(e)(ii)(B).

“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 Xxx 0000; (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.

“Warrant” and “Warrants” means each of the Warrants, substantially in the form attached hereto as Exhibit G executed by Borrower in favor of the each of Lenders or an Affiliate of the Lenders holding Initial Term Loans on the Closing Date, pursuant to which the Lenders or their Affiliate, as applicable, shall be entitled to purchase shares of the Borrower’s Equity Interests as set forth therein.

“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.

(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, as such terms are understood under the Israeli Companies 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), 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.

(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 Borrower 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 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, the administration, submission or any other matter related to the rates in the definition of “LIBO Rate” or with respect to any comparable or successor rate thereto.

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 a Borrower, the relevant rates of exchange used by such Borrower 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.

(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, each Lender severally agrees to make (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 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 and the consummation of the Transactions occurring on the Closing Date (including the transactions described in the Reaffirmation and Omnibus Amendment Agreement, and the Loan Assignment Transactions), each Lender’s Initial Term Loan Commitment and Tranche 2 Term Loan Commitment shall automatically be reduced to zero.

(B) Procedure for the Advance of the Closing Date Term Loans.

(1) The Borrower shall give the Administrative Agent an irrevocable Notice of Borrowing prior to 11:00 a.m. (New York time) (i) on the Closing Date requesting that the Lenders make the Loan as a Base Rate Loan on such date; or (ii) no later than five (5) Business Days prior to the Closing Date (or such later date as may be agreed by the Administrative Agent), requesting that the Lenders make the Loan as a LIBO Rate Loan if Borrower has delivered to the Administrative Agent a letter in form and substance reasonably satisfactory to the Administrative Agent indemnifying the Lenders in the manner set forth in Section 2.02(f) of this Agreement.

(2) Provided that such Lender is satisfied that each of the conditions precedent for such Loan set forth in Exhibit E of the Reaffirmation and Omnibus Amendment Agreement have been satisfied or waived in writing, then each such Lender by not later than 12 noon (New York time) on the Closing Date will make available the proceeds of the Closing Date Term Loans available on the Closing Date to the Borrower or the persons identified by Borrower in accordance with the Disbursement Letter. Unless the Administrative Agent shall have received notice from a Lender prior to the proposed making of the Loan that such Lender will not make available such Lender’s share of such Loan, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with the Disbursement Letter.

(3) Notwithstanding anything else set forth in this Agreement or any of the other Transaction Documents, it is agreed and understood that on the Closing Date simultaneously with the making of the Initial Term Loans under this Section 2.01(a)(i) (which shall include the outstanding principal amount of the Original Loans held by each of the Lenders and all accrued and unpaid interest and other amounts in respect thereof (such amount, “Restated Amount”)), (i) all of the Original Loans held by each Lender shall be deemed to be amended and restated at the Effective Time and after giving effect to such amendment and restatement the Original Loan shall be continued as and deemed to be Initial Term Loans in an aggregate principal amount equal to the Restated Amount and (ii) immediately after giving effect thereto, each Lender shall hold an Initial Term Loan under this Agreement in an aggregate principal amount equal to such Lender’s Restated Amount (plus any fees, original issue discount or other amount applicable to the issuance of such Initial Term Loans which are intended to be capitalized as at the initial issuance of the Initial Term Loans).

(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 severally agrees to make Delayed Draw Term Loans to Borrower during the Borrowing Period for such 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.

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

(1) Delayed Draw Term Loans shall be in a minimum aggregate amount of Two Million Five Hundred Thousand Dollars ($2,500,000) and shall be in integral multiples of One Hundred Thousand Dollars ($100,000) in excess thereof or, if less, the remaining amount of the Delayed Draw Term Loan Commitments.

(2) The Borrower shall give the Administrative Agent an irrevocable Notice of Borrowing prior to 1:00 p.m. (New York time) no later than five (5) Business Days prior to the applicable Credit Date (or such later date as may be agreed by the Administrative Agent), requesting that the Lenders make the Loan as a LIBO Rate Loan if Borrower has delivered to the Administrative Agent a letter in form and substance reasonably satisfactory to the Administrative Agent indemnifying the 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.

(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 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 End of Term Fee), premiums and other amounts owed under the Loan Documents, shall, in any event, be paid in full 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).

(c) Mandatory Prepayment Upon Acceleration. If the Obligations are accelerated (whether following the occurrence and during the continuation of an Event of Default, by operation of law or otherwise), 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 End of Term Fee, as further described in Section 2.01(f), below; 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.

(d) Permitted Prepayment of Loans/Commitment Reductions.

(i) Voluntary Prepayments. At any time and from time to time after the last day of the No Call Period but subject to Section 2.01(d)(iii), 2.01(d)(iv) and Section 2.01(f) 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 Loan specified for prepayment in the written notice provided pursuant to clause (x); (B) the End of Term Fee on the principal portion of the Loan 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), 2.01(d)(iv) and/or Section 2.01(f), below. Each partial prepayment shall be applied pro rata to the remaining principal payments.

(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 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) No Call/Yield Maintenance Premium. The Loans shall not be refinanced, repaid, prepaid, replaced, modified by operation of law, or reduced, and no Delayed Draw Term Loan Commitment may be permanently reduced or terminated, until the end of the applicable No Call Period. Notwithstanding any of the foregoing, if a Prepayment Event (other than pursuant to Section 2.01(e)(i)(B) or Section 2.01(e)(i)(D)) occurs during the applicable No Call Period, such payment on the Obligations shall include, in addition to all other amounts due under this Agreement and any other Loan Document an amount (the “Yield Maintenance Premium”) equal to the net present value of the sum of (i) the aggregate amount of interest at the then Applicable Rate (including interest payable in cash, in kind or deferred) which would have otherwise been payable on the Affected Principal Amount from the date of the occurrence of such Prepayment Event until the last day of the applicable No Call Period plus (ii) the Prepayment Premium on the principal amount of such Loans prepaid, repaid, refinanced or repriced (“Repayment”) that would have been payable on such Loans had Repayment occurred on the last day of the No Call Period applicable thereto (in each case computed on the basis of actual days elapsed over a year of three hundred and sixty (360) days and using a discount rate equal to the sum of the Treasury Rate as of the Business Day immediately before such Repayment plus fifty basis points). No amount will be payable pursuant to the foregoing provisions with respect to any Prepayment Event after the end of the No Call Period for such Loans.

(iv) 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 “Prepayment Premium”) on the Affected Principal Amount as follows:

Relevant period (number of calendar months elapsed since the Closing Date)		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) 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 the Borrower 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 no such prepayment shall be required unless and until the total aggregate amount of such Net Cash Proceeds received by the Borrower 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).

(B) Insurance/Condemnation Proceeds. Within five (5) Business Days after the receipt by the Borrower 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 the Borrower 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 its 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 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 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 the Borrower 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 the Borrower 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 Borrower or any of its Subsidiaries of any Net Cash Proceeds from any issuance of any Indebtedness of Borrower or any of its Subsidiaries (excluding Permitted Indebtedness) 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 the Borrower 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 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. (A) On the date of receipt by Borrower 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 (including any initial public offering, SPAC Transaction or other transaction with consideration in the form of stock or other non-cash consideration), of the Borrower 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 the Closing Date or (B) on the date of any reorganization, merger or consolidation or similar transaction, share exchange, asset acquisition or other business combination transaction between the Borrower or any of its Affiliates (excluding any member of the Dense Air Group) and a publicly traded special purpose acquisition company or blank check company (in each case, 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, to the extent the Borrower or any of its Subsidiaries triggers this clause (E) on account of an initial public offering or SPAC Transaction, the first Seventy-Five Million Dollars ($75,000,000) of such Net Cash Proceeds will be applied as cash on its balance sheet, and any Net Cash Proceeds in excess thereof shall be applied by Borrower to prepay the Loans and/or the applicable Term Loan Commitments shall be permanently reduced as set forth in Section 2.01(d).

(ii) Prepayments pursuant to Section 2.01(e)(i) shall be applied to the principal balance in inverse order of maturity.

(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), in which case the aggregate amount of the payment that would have been applied to prepay the Loans but was so declined shall be retained by the Borrower.

(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 in full of the principal amount of Loans and other 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 the Loans) 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.

(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) If the Loans are accelerated for any reason under this Agreement pursuant to the terms herein, the End of Term Fee and Applicable Prepayment Premium applicable thereto shall be calculated as if the date of acceleration of the Loans was the date of prepayment of such Loans. The parties hereto further acknowledge and agree that neither the End of Term Fee nor the Applicable Prepayment Premium is intended to act as a penalty or to punish the Loan Parties for any such repayment, prepayment or cancellation. 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. Without limiting the generality of the foregoing, and notwithstanding anything to the contrary in this Agreement or any Loan Document, it is understood and agreed that if the Obligations are accelerated (whether as a result of the occurrence and continuance of any Event of Default, by operation of law or otherwise), the End of Term Fee and the Applicable Prepayment Premium, if any, determined as of the date of acceleration, will also be due and payable and will be treated and deemed as though the applicable Loan was prepaid as of such date and shall constitute part of the Obligations for all purposes herein. The End of Term Fee and the Applicable Prepayment Premium, if any, shall also be payable in the event the Obligations (and/or this Agreement) are satisfied or released by foreclosure (whether by power of judicial proceeding), deed in lieu of foreclosure or by any other similar means. THE LOAN PARTIES EXPRESSLY WAIVE THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING END OF TERM FEE OR APPLICABLE PREPAYMENT PREMIUM IN CONNECTION WITH ANY SUCH ACCELERATION. THE LOAN PARTIES EXPRESSLY AGREE THAT (I) EACH OF THE END OF TERM FEE AND THE 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 END OF TERM FEE AND 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 END OF TERM FEE AND APPLICABLE PREPAYMENT PREMIUM, (IV) THE LOAN PARTIES SHALL BE ESTOPPED HEREAFTER FROM CLAIMING DIFFERENTLY THAN AS AGREED TO IN THIS SECTION 2.01(F), (V) THEIR AGREEMENT TO PAY THE END OF TERM FEE AND APPLICABLE PREPAYMENT PREMIUM IS A MATERIAL INDUCEMENT TO THE LENDERS TO MAKE THE LOANS, AND (VI) THE END OF TERM FEE AND APPLICABLE PREPAYMENT PREMIUM REPRESENTS A GOOD FAITH, REASONABLE ESTIMATE AND CALCULATION OF THE LOST PROFITS OR DAMAGES OF THE LENDERS AND THAT IT WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ASCERTAIN THE ACTUAL AMOUNT OF DAMAGES TO A LENDER OR PROFITS LOST BY SUCH LENDER AS A RESULT OF SUCH END OF TERM FEE EVENT OR PREPAYMENT EVENT.

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.

(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.

(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 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 (1^st) day but excluding the last day). The applicable Base Rate and LIBO Rate 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 LIBO Rate 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 LIBO Rate 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.

(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;

(D) if the resulting Borrowing is a LIBO Rate 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 or any such Conversion/Continuation Notice requests a LIBO Rate Loan but does not specify an Interest Period, then the Borrower shall be deemed to have selected a LIBO Rate Loan with an Interest Period of one (1) month’s duration.

(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 LIBO Rate Loan and (ii) unless repaid, each LIBO Rate 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.

(b) Fees.

(i) The Loan Parties collectively agree 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 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, an origination fee (the “Origination Fee”) in an amount equal to (x) two percent (2.00%) of the amount of the Initial Term Loan or Delayed Draw Term Loans so advanced upon such Credit Date in the case of an Initial Term Loan or Delayed Draw Term Loan, and (y) in the case of a Tranche 2 Term Loan, an amount equal to Four Million Dollars ($4,000,000) upon the advancement of the Tranche 2 Term Loan, which fees shall be due and payable on the date of such Loans are advanced.

(ii) In addition to the foregoing, the Loan Parties agree to pay to the Agents and the Lenders the End of Term Fee 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 Origination Fee or any similar fee due hereunder may be netted from the Loan proceeds so advanced on such date or if otherwise not paid in cash in immediately available funds on the date when due, may with the consent of the applicable Lenders, added to the principal amount of the applicable Loans and treated as original issue discount.

(iv) Once paid, no fees or any part thereof payable shall be refundable under any circumstances. All such payments shall be made without deduction for any taxes, levies, imposts, duties, deductions, charges or withholdings imposed by any national, state or local taxing authority.

(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 Borrower, 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 Closing 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 Closing Date (or, if such notice is delivered after the Closing Date, promptly after Borrower’s receipt of such notice) a Note or Notes to evidence such Lender’s Loans.

(d) Payments. Interest on the Loans 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.

(f) Break Funding Payments. Notwithstanding anything herein to the contrary, in the event of the conversion, payment or prepayment by Borrower of any principal of the Loans other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default), then, in any such event, Borrower shall compensate each Lender for the loss, cost and expense substantiated by such Lender as a result of such event in connection with the liquidation or re-deployment of such funds (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.

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 subsection (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.

(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 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;

(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 date of this Agreement.

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.

(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).

(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, 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.

(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.

Section 2.05 Making or Maintaining LIBO Rate Loans; Special LIBOR Provisions; Effect of Benchmark Transition Event.

(a) Inability to Determine Applicable Interest Rate. In the event that Administrative Agent shall have determined (which determination shall be final and conclusive and binding upon all parties hereto), on any Interest Rate Determination Date with respect to any LIBO Rate Loans, that by reason of circumstances affecting the London interbank market adequate and fair means do not exist for ascertaining the interest rate applicable to such LIBO Rate Loans on the basis provided for in the definition of LIBO Rate, Administrative Agent shall on such date give notice to Borrower and each Lender of such determination, whereupon (i) no Loans may be made as, or converted to, LIBO Rate Loans until such time as Administrative Agent notifies Borrower and Lenders that the circumstances giving rise to such notice no longer exist, and (ii) any Notice of Borrowing or Conversion/Continuation Notice given by Borrower with respect to the Loans in respect of which such determination was made shall be deemed to be rescinded by Borrower.

(b) Illegality or Impracticability of LIBO Rate Loans. In the event that on any date any Lender shall have determined (which determination shall be final and conclusive and binding upon all parties hereto but shall be made only after consultation with Borrower and Administrative Agent) that the making, maintaining or continuation of its LIBO Rate Loans (i) has become unlawful as a result of compliance by such Lender in good faith with any law, treaty, governmental rule, regulation, guideline or order (or would conflict with any such treaty, governmental rule, regulation, guideline or order not having the force of law even though the failure to comply therewith would not be unlawful), or (ii) has become impracticable, as a result of contingencies occurring after the date hereof which materially and adversely affect the London interbank market or the position of such Lender in that market, then, and in any such event, such Lender shall be an “Affected Lender” and it shall on that day give notice to Borrower and Administrative Agent of such determination (which notice Administrative Agent shall promptly transmit to each other Lender). Thereafter (1) the obligation of the Affected Lender to make Loans as, or to convert Loans to, LIBO Rate Loans shall be suspended until such notice shall be withdrawn by the Affected Lender, (2) to the extent such determination by the Affected Lender relates to a LIBO Rate Loan then being requested by Borrower pursuant to a Notice of Borrowing or a Conversion/Continuation Notice, the Affected Lender shall make such Loan as (or continue such Loan as or convert such Loan to, as the case may be) a Base Rate Loan, (3) the Affected Lender’s obligation to maintain its outstanding LIBO Rate Loans (the “Affected Loans”) shall be terminated at the earlier to occur of the expiration of the Interest Period then in effect with respect to the Affected Loans or when required by applicable Law, and (4) the Affected Loans shall automatically convert into Base Rate Loans on the date of such termination. Notwithstanding the foregoing, to the extent a determination by an Affected Lender as described above relates to a LIBO Rate Loan then being requested by Borrower pursuant to a Notice of Borrowing or a Conversion/Continuation Notice, Borrower shall have the option, subject to the provisions of Section 2.05(c), to rescind such Notice of Borrowing or Conversion/Continuation Notice as to all Lenders by giving notice to Administrative Agent of such rescission on the date on which the Affected Lender gives notice of its determination as described above (which notice of rescission Administrative Agent shall promptly transmit to each other Lender). Except as provided in the immediately preceding sentence, nothing in this Section 2.05(b) shall affect the obligation of any Lender other than an Affected Lender to make or maintain Loans as, or to convert Loans to, LIBO Rate Loans in accordance with the terms hereof.

(d) Booking of LIBO Rate Loans. Any Lender may make, carry or transfer LIBO Rate Loans at, to, or for the account of any of its branch offices or the office of an Affiliate of such Lender.

(e) Assumptions Concerning Funding of LIBO Rate Loans. Calculation of all amounts payable to a Lender under this Section 2.05 and under Section 2.02(f) shall be made as though such Lender had actually funded each of its relevant LIBO Rate Loans through the purchase of a LIBO deposit bearing interest at the LIBO Rate in an amount equal to the amount of such LIBO Rate Loan and having a maturity comparable to the relevant Interest Period and through the transfer of such LIBOR deposit from an offshore office of such Lender to a domestic office of such Lender in the United States of America; provided, however, each Lender may fund each of its LIBO Rate Loans in any manner it sees fit and the foregoing assumptions shall be utilized only for the purposes of calculating amounts payable under this Section 2.05 and under Section 2.02(f).

(f) Alternate Rate of Interest.

(i) Benchmark Replacement. Notwithstanding anything to the contrary herein or in any other Loan Document, upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, Administrative Agent in consultation with the Borrower may amend this Agreement to replace LIBOR with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. on the fifth (5th) Business Day after Administrative Agent has posted such proposed amendment to all Lenders and the Borrower so long as Administrative Agent has not received, by such time, written notice of objection to such amendment from Lenders comprising the Requisite Lenders. Any such amendment with respect to an Early Opt-in Election will become effective on the date that Lenders comprising the Requisite Lenders have delivered to Administrative Agent written notice that such Requisite Lenders accept such amendment. No replacement of LIBOR with a Benchmark Replacement pursuant to this Section 2.05 will occur prior to the applicable Benchmark Transition Start Date.

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

(iii) Notices; Standards for Decisions and Determinations. Administrative Agent will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date and Benchmark Transition Start Date, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes and (iv) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by Administrative Agent or the Lenders pursuant to this Section 2.05(f) 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, 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(f).

(iv) Benchmark Unavailability Period. Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any request for LIBO Rate Loan of, conversion to or continuation of LIBO Rate 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 any Benchmark Unavailability Period, the component of Base Rate based upon the LIBO Rate 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 (except any reserve requirement reflected in the LIBO Rate);

(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;

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) After any voluntary or mandatory prepayments or repayments of Loans pursuant to Section 2.1 or the exercise of remedies provided for in Section 8.02 (or after the 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 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 Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to the Agents and amounts payable under Section 2.03, Section 2.05, Section 2.06 and Section 13.02) payable to the Administrative Agent;

second, to the payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to the Lenders and amounts payable under Section 2.03, Section 2.05, Section 2.06 and Section 13.02) 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 Obligations constituting accrued and unpaid interest on the Loans, premiums (including, without limitation, any Applicable Prepayment Premium) and fees, 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 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;

sixth, except in connection with any waivable prepayment in Section 2.01(e)(iii), 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 in full of all other Obligations then owing, ratably among the Secured Parties in proportion to the respective amounts described in this clause sixth held by them; and

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

Subject to items “first” through “seventh” 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 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.

(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 Origination Fee described in Section 2.02(b)(i)(B) 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.

(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 an Affected Lender or 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 an Affected Lender or which entitle such Lender 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.

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 is 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 shall have received, in form and substance satisfactory to it and its counsel, each of the following duly executed and delivered:

(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 is a Post-Closing Obligation);

(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 Organizational 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 shall 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, (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 this Agreement and the other Loan Documents and Transaction Documents) to which such Loan Party is or will be a party and the other documents to be 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, have 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.

(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;

(vii) a customary legal opinion from

(A) Xxxxxx & Xxxxxxx LLP, as United States counsel to the Loan Parties;

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

(D) Xxxx Xxxxx 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 may reasonably require.

(b) [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 is and will be Solvent, and (B) that the Borrower and each of its Subsidiaries, on a consolidated basis, are and will be Solvent.

(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 shall have 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 are no outstanding Liens over its assets, save as permitted under this Agreement;

(viii) [Reserved];

(ix) [Reserved]; and

(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 (as defined in the Credit Agreement) of any Obligor (as defined in the Credit Agreement) 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 shall have 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 shall have received, in form and substance reasonably satisfactory to it, a duly executed and delivered Control Agreement for each of the US 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 shall have received evidence, in form and substance satisfactory to them (in their sole discretion), that the Borrower has received (or will receive 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 shall have been delivered to the Administrative Agent.

(o) [Reserved].

(p) [Reserved].

(q) Softbank Subordination Agreement. Administrative Agent and Lenders shall 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 herein 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 this 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 may reasonably require 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):

(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 (ii) 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).

(f) Financial Condition. There is no event or circumstance that has occurred since (x) December 31, 2019 in the case of Closing Date Loans and, (y) thereafter, 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 Closing Date and the Initial Term Loans, pursuant to the terms and conditions of the Warrants, the Borrower has authorized the issue and sale of Equity Interests and grants each of the Lenders that hold Initial Term Loans on the Closing 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 the Borrower’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 Initial Term Loan advanced pursuant to Section 2.01 hereof, the Warrants, and the Equity Interests in the IP Hold-Co issued to the Fortress Member 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 Equity Interests in the IP Hold-Co issued to the Fortress Member, and the “issue price” and “original issue discount” of each of the Closing Date Term Loans for purposes of Section 1273(b) of the Code, will be determined in good faith by Fortress after the Closing 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).

(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 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 the Borrower and each of its Subsidiaries in their respective subsidiaries showing all Equity Interests held in the Borrower and 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; or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which it or its property is subject; or (c) violate any applicable Law, in each case except to the extent any failure would not reasonably be expected to have a Material Adverse Effect.

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 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 Borrower 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 Borrower and its Subsidiaries as of the date thereof. Since the date of the Audited Financial Statements, 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 Borrower or any of its Subsidiaries, threatened in writing, at Law, in equity, in arbitration or before any Governmental Authority, by or against Borrower 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 Borrower 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 Borrower or any Subsidiary under the Securities Act and Exchange Act, as applicable.

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) Each Borrower and 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 Borrower 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 Borrower 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 Borrower or the applicable Subsidiary operates.

Section 5.11 Taxes. Borrower 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 Borrower and its Subsidiaries financial statements in accordance with the applicable GAAP. The charges, accruals and reserves on the books of Borrower 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 Borrower or any Subsidiary nor, to Borrower’s 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 Borrower 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 Borrower or any Subsidiary or any of their respective assets or property other than Permitted Liens. Neither the Borrower 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, the Code and other Federal or state Laws and (ii) each Foreign Plan is in material compliance with applicable Law and regulations, special arrangements, collective bargaining agreements and extension orders in any applicable jurisdiction. Each Plan that is intended to qualify under Section 401(a) of the Code has received a favorable determination letter from the IRS or, with respect to a prototype or volume submitter plan, can rely on an opinion letter from the IRS to the document sponsor, to the effect that such Plan is so qualified and, to the Knowledge of Borrower and its Subsidiaries, nothing has occurred which would prevent, or cause the loss of, such qualification. Borrower and each ERISA Affiliate have made all required contributions to each Plan subject to Section 412 of the Code, and no application for a funding waiver or an extension of any amortization period pursuant to Section 412 of the Code has been made with respect to any Plan.

(b) There are no pending or, to the Knowledge of Borrower or its Subsidiaries, threatened claims, actions or lawsuits, or action by any Governmental Authority. There has been no prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan.

(c) (i) No ERISA Event has occurred or is reasonably expected to occur; (ii) no Pension Plan has any Unfunded Pension Liability; (iii) neither Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability under Title IV of ERISA with respect to any Pension Plan (other than premiums due and not delinquent under Section 4007 of ERISA) (or equivalent Law in a non-US jurisdiction with respect to a Foreign Plan); (iv) neither Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Section 4201 or 4243 of ERISA with respect to a Multiemployer Plan (or equivalent Law in a non-US jurisdiction); and (v) neither Borrower nor any ERISA Affiliate has engaged in a transaction that could be subject to Section 4069 or 4212(c) of ERISA (or equivalent Law in a non-US jurisdiction).

(d) To the best of its Knowledge, neither the Borrower nor any of its Affiliates is or has at any time been (i) an employer (for the purposes of sections 38 to 51 of the Pensions Act 2004) of an occupational pension scheme which is not a money purchase scheme (both terms as defined in the Pensions Schemes Act 1993); or (ii) ‘connected’ with or an ‘associate’ of (as those terms are used in sections 38 and 43 of the Pensions Act 2004) such an employer.

Section 5.13 Subsidiaries; Equity Interests. Borrower has no Subsidiaries other than those specifically disclosed in Schedule 5.13, and all of the outstanding Equity Interests in such Subsidiaries have been validly issued, are fully paid and nonassessable and are owned by a Loan Party, free and clear of all Liens other than Permitted Liens. IP Hold-Co has no equity investments in any other corporation or entity. All of the outstanding Equity Interests in the Borrower and its Subsidiaries have been validly issued and, where applicable, are fully paid and nonassessable.

As of the Closing Date and after giving effect to the transaction occurring on the Closing Date, Schedule 5.13 sets forth (a) the name and jurisdiction of organization of the Borrower and each Subsidiary, (b) sets forth the ownership interest of the Borrower and each of its Subsidiaries, including the percentage and classes of such Equity Interests on a fully diluted basis and (c) identifies each Person the Equity Interests of which are required to be pledged on the Closing Date pursuant to the Collateral and Guarantee Requirements.

Section 5.14 Margin Regulations; Investment Company Act. No Loan Party is engaged nor will it engage, principally or as one of its important activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Federal Reserve Board), or extending credit for the purpose of purchasing or carrying margin stock. None of Borrower or any Subsidiary is or is required to be registered as an “investment company” under the Investment Company Act of 1940, as amended, as such terms are defined in the Investment Company Act of 1940. Neither the making of any Loan nor the use of proceeds thereof will violate the provisions of Regulation T, Regulation U or Regulation X of the Federal Reserve Board.

Section 5.15 Disclosure.

(a) Each Loan Party has disclosed to the Agents all agreements, instruments and corporate or other restrictions to which it is subject, and all other matters known to it, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect. None of the reports, financial statements, certificates or other information furnished by or on behalf of any Loan Party to the Agents (other than forward-looking information and projections and information of a general economic nature and general information about the Loan Parties' industry) in connection with the negotiation of this Agreement or delivered hereunder (as modified or supplemented by other information so furnished) contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which it was made, not materially misleading.

(b) All projections have been prepared in good faith on a basis that is believed by the Loan Parties to be, and based on assumptions, estimates, methods and tests that are believed by the Loan Parties to be reasonable at the time such projections were prepared and information believed by the Loan Parties to have been accurate based upon the information available to the Loan Parties at the time such projections were furnished to the Secured Parties, and no Loan Party is aware of any facts or information that would lead it to believe that such projections are incorrect or misleading in any material respect; it being understood that projections are by their nature subject to significant uncertainties and contingencies, many of which are beyond the Loan Parties' control and actual results may differ materially from the projections and such variations may be material.

Section 5.16 Compliance with Laws. Each Loan Party and each Subsidiary thereof is and has been in compliance in all respects with the requirements of all applicable Laws and all orders, writs, injunctions and decrees applicable to it or to its business or properties, except to the extent any noncompliance would not be reasonably expected to adversely affect the Borrower and its Subsidiaries taken as a whole or the Obligation in any material respect.

Section 5.17 Intellectual Property; Licensing.

(a) Schedule 5.17(a) sets forth a complete and accurate list of all: (i) issuances, registrations and applications for Intellectual Property owned or exclusively licensed by Borrower or a Subsidiary, indicating for each, as applicable, the title, jurisdiction, record owner, and application or registration number; and (ii) Licenses to which Borrower or any of its Subsidiaries is a party or otherwise bound that are material to the conduct of the business of Borrower or any Subsidiary or that involve any Assigned Patent, excluding for the avoidance of doubt, any commercially available ‘off-the-shelf’ software or open source software licenses used in the business of Borrower or any Subsidiary, or any licenses granted to customers, distributors or agents of Borrower or any Subsidiary for the purpose of testing, demonstrating, using, installing, maintaining, updating, repairing, decommissioning and otherwise exploiting the Products (each, a “Material License”).

(b) Except as set forth on the Disclosure Schedule, Borrower and each Subsidiary exclusively own all right, title and interest in and to, or have a valid and enforceable right to use, free and clear of any Lien other than any Permitted Liens, all Intellectual Property necessary for the conduct of its business as presently conducted. Except as set forth in Schedule 5.17(b), within the (3) three years preceding the Closing Date, no claim has been brought, is pending, or, to the knowledge of the Borrower, has been threatened, by any Person (i) alleging that the conduct of the business of Borrower or a Subsidiary infringes, misappropriates, dilutes or otherwise violates the Intellectual Property of any Person or (ii) challenging or questioning the validity, enforceability, ownership, use, registrability or patentability of any Material Intellectual Property. To the knowledge of Borrower, no Person is infringing, misappropriating, diluting or otherwise violating any Intellectual Property of Borrower or any Subsidiary.

(c) Other than as set forth on Schedule 5.17(c), no Foreign Subsidiary owns any registrations or applications to register any Material Intellectual Property. To the knowledge of Borrower, all registrations and pending applications for Material Intellectual Property listed in accordance with paragraph (a) is subsisting and has not been adjudged invalid or unenforceable, in whole or part, (y) subsisting and has not been adjudged invalid or unenforceable, in whole or part, and (z) valid and in full force and effect. Borrower and each Subsidiary has taken commercially reasonable steps to maintain, enforce and protect its Intellectual Property, including by requiring each employee, consultant and independent contractor involved in the creation, development or authorship of any Intellectual Property to execute an agreement pursuant to which such Person (x) agrees to protect the confidential information of Borrower and each Subsidiary and (y) assigns to Borrower or a Subsidiary, as applicable, all rights in any Intellectual Property created in the course of his, her or its employment or other engagement with Borrower or a Subsidiary.

(d) Except as set forth in Schedule 5.17(d) (the “Deficient Assigned Patents”), Borrower has obtained and properly recorded previously executed assignments from inventors and all other Persons for the Assigned Patents as necessary to fully perfect its rights and title therein in accordance with applicable Law in each respective jurisdiction. All inventors named on the Assigned Patents are true and correct.

(e) Except as may be set forth on Schedule 5.17(e), there is no obligation imposed by a standards-setting organization with respect to any of the Assigned Patents. No funding, facilities or personnel of any Governmental Authority were used, directly or indirectly, to develop or create, in whole or in part, any Intellectual Property assets, or any other products or services of Borrower or its Subsidiaries.

(f) Except as set forth in Schedule 5.17(f), none of the Assigned Patents has ever been found invalid, unpatentable, or unenforceable for any reason in any proceeding and Borrower and its Subsidiaries have no Knowledge of and has not received any notice or information of any kind suggesting that the Assigned Patents may be invalid, unpatentable, or unenforceable. If any of the Assigned Patents are terminally disclaimed to another patent or patent application, all patents and patent applications subject to such terminal disclaimer are included in the Assigned Patents. To the extent “small entity” fees were paid to the United States Patent and Trademark Office for any Assigned Patent, such reduced fees were then appropriate because the payor qualified to pay “small entity” fees at the time of such payment and specifically had not licensed rights in any Assigned Patent to an entity that was not a “small entity”.

(g) Borrower and each Subsidiary has taken all reasonable and necessary steps to maintain and enforce the Material Intellectual Property and Material Licenses and to preserve the confidentiality of all trade secrets and proprietary information included in the set of Material Intellectual Property, including by requiring Persons having access thereto to execute binding, written non-disclosure agreements or otherwise effectively obligate themselves with respect to non-disclosure and non-use. Neither Borrower or any of its Subsidiaries, including their employees, and to the knowledge of Borrower, their agents and contractors, has disclosed any trade secrets or other proprietary, confidential or personal information in which the Borrower or any of its Subsidiaries or any other Person has (or purports to have) any right, title, or interest (or any tangible embodiment thereof) to any Person without having the recipient thereof execute a written agreement regarding the non-disclosure and non-use thereof or otherwise effectively obligate themselves with respect to non-disclosure and non-use. All use, disclosure, or appropriation of any trade secret or other proprietary, confidential or personal information not owned by Borrower or any of its Subsidiaries has been pursuant to the terms of a written agreement between Borrower or one or its Subsidiaries and the owner of such trade secret or proprietary, confidential or personal information, or otherwise with such owner’s express written consent. Neither the Borrower nor any of its Subsidiaries has received any notice in the past two (2) years from any Person that there has been an unauthorized use or disclosure of any trade secrets or other proprietary, confidential or personal information by Borrower or any of its Subsidiaries, or any of their employees, agents, or contractors. No escrow agents or other Persons other than Borrower or any of its Subsidiaries, and their employees and independent contractors who are subject to written obligations of confidentiality, have access to or otherwise possess any source code, or any current or contingent rights of any kind to any source code, included in the set of Material Intellectual Property Assets, nor has Borrower or any of its Subsidiaries granted access or any current or contingent rights of any kind to any source code that is part of the Intellectual Property owned or controlled by Borrower or any of its Subsidiaries. To the knowledge of Borrower, no product, system, program or software module designed, developed, distributed or otherwise made available by Borrower or any of its Subsidiaries to any Person, including products and services, contains any “back door,” “time bomb,” “Trojan horse,” “worm,” “drop dead device,” “virus” or other software routines or hardware components designed to permit unauthorized access or to disable or erase software, hardware or data without the consent of the user (“Harmful Code”).

(h) Schedule 5.17(h) delivered to the Agent on or before the Closing Date is a complete and correct list of the following: (i) each open source software module by name and version number that is associated with a Reciprocal License that is incorporated in, linked to, or used in relation to, any product or service sold or distributed by the business of Borrower or any of its Subsidiaries; (ii) the Reciprocal License applicable to each such open source software module and a reference to where the terms of such Reciprocal License may be found (e.g., a link to a site that has the applicable Reciprocal License); (iii) whether Borrower or any of its Subsidiaries has modified any such open source software module, and (iv) whether such open source software module has been, or is expected to be, distributed by Borrower or any of its Subsidiaries or only used internally by Borrower or any of its Subsidiaries. Borrower’s and its Subsidiaries’ use or distribution of each component of software subject to a Reciprocal License complies with the applicable Reciprocal License governing such software, including all notice and attribution requirements. Neither Borrower nor any of its Subsidiaries has used any materials subject to a Reciprocal License in any manner that would (A) require the disclosure or distribution in source code form, (B) require the license thereof for the purpose of making derivative works, (C) imposing any restriction on the consideration to be charged for distribution of any Material Intellectual Property, or (D) imposing any restriction on Borrower or any of its Subsidiaries, from asserting its rights in relation to any Material Intellectual Property or the Collateral Agent in exercising its rights hereunder.

(i) Neither Borrower nor any Subsidiary, or to Borrower or its Subsidiaries’ Knowledge, any counterparty, is in material breach of or default under the provisions of any of the Material Licenses, or has received written notice of any such breach or default or the intention of the other party to terminate such License, nor is there any event, fact, condition or circumstance which, with notice or passage of time or both, would constitute or result in a material conflict, breach, default or event of default under, any of the foregoing.

(j) Except as set forth in Schedule 5.17(j), none of the Intellectual Property has been or is currently involved in any reexamination, supplemental examination, reissue, interference proceeding, or any similar proceeding, and no such proceedings are pending or threatened.

(k) Except as set forth in Schedule 5.17(b), none of the Loan Parties nor any of their respective Subsidiaries has received any notices alleging that the conduct of its business (including the development, manufacture, use, sale or other commercialization of any Product) infringes any Intellectual Property of any third party, and to the knowledge of the Loan Parties, the conduct of the business of the Loan Parties and their respective Subsidiaries (including the development, manufacture, use, sale or other commercialization of any Product) does not infringe any Intellectual Property of any third party.

(l) No Loan Party nor any Subsidiary is a party to any agreement that conflicts with the security interest in the Intellectual Property of the Borrower or any Asset Security Provider granted under the Collateral Documents, and no license agreement with respect to any such Intellectual Property diminishes in any material respect the value of the any Intellectual Property of Borrower or any Subsidiary or interferes with the security interest granted to the Administrative Agent pursuant to the terms of the Loan Documents. No material Intellectual Property of the Borrower of any of its’ Subsidiaries is included in the set of Excluded Assets of the Loan Parties. The consummation of the transactions contemplated hereby and the exercise by the Administrative Agent or the Lenders of any right or protection set forth in the Transaction Documents will not constitute a breach or violation of, or otherwise affect the enforceability of, any licenses of any Intellectual Property owned or licensed by any Loan Party or Subsidiary.

(m) Borrower and its’ Subsidiaries have or had, as appropriate, complete, valid and enforceable rights to use a complete and correct copy of all data, data sets and databases used in, held for use in, or necessary for the conduct of the business of the Borrower and its’ Subsidiaries (including their products), as currently conducted and as had been conducted in the past (collectively, “Company Data and Data Sets”), and all such material Company Data and Data Sets are or were, as appropriate, either (i) owned by Borrower or one of its’ Subsidiaries, (ii) used under valid, enforceable licenses to Borrower or one of its’ Subsidiaries, or (iii) otherwise used without encroaching on the rights of any third party.

(n) All IT Systems of the business of Borrower and its Subsidiaries are in good working condition and are sufficient for the operation of such business as currently conducted. In the past twelve (12) months, other than as disclosed in Schedule 5.17(n), there has been no malfunction, failure, continued substandard performance, denial-of-service, or other cyber incident, including any cyberattack or other impairment of the IT Systems that has resulted or is reasonably likely to result in the introduction of any Harmful Code into its products or any other material disruption or damage to Borrower or any of its Subsidiaries. Borrower and its Subsidiaries have been, and is, in compliance in all material respects with all contractual obligations concerning the security and privacy of the IT Systems and information contained therein (including Intellectual Property and personal data, and other information subject to confidentiality obligations). Borrower and its Subsidiaries have taken all commercially reasonable steps to safeguard the confidentiality, availability, security, and integrity of the IT Systems of Borrower and its Subsidiaries, including implementing and maintaining appropriate backup, disaster recovery, and software and hardware support arrangements. Other than as set forth on Schedule 5.17(n) neither of the business of Borrower nor any of its Subsidiaries has suffered any security breaches in the past twelve (12) months that have resulted in a third party obtaining access to any proprietary or confidential information of Borrower or any of its Subsidiaries or any third parties. Borrower and its Subsidiaries have implemented and maintained, consistent with commercially reasonable practices and its obligations to third persons, security, disaster recovery, business continuity plans, procedures, and facilities, and other measures adequate to protect computers, networks, software, and systems used by Borrower or any of its Subsidiaries to store, process, or transmit information or content from unauthorized access, use or modification.

(o) Borrower and its Subsidiaries have complied with, and are in compliance with, in each case in all material respects, all applicable Laws (including privacy Laws), rules, and regulations governing the collection and use of personal information and such collection and use is in accordance in all material respects with such member of Borrower’s and each Subsidiaries’ privacy policy. There are not, and have not been in the past two (2) years, any investigations, allegations, claims or occurrences pertaining to an actual or potential security or privacy breach. Borrower’s and its Subsidiaries have implemented industry standard or better information and data security policies and procedures that safeguard the confidential information of Borrower and its Subsidiaries (including the confidential information of Borrower’s and its Subsidiaries’ customers), as well as all Personal Information collected by Borrower and its Subsidiaries both on its own behalf and on behalf of third parties. In the past two (2) years, neither Borrower nor any of its Subsidiaries has (i) experienced any actual, alleged, or suspected unauthorized access, use, or disclosure of, or data breach or other security incident involving Personal Information in its possession or control, or (ii) been subject to or received any notice of any proceeding by any Governmental Authority or other Person concerning Borrower’s or any of its Subsidiaries’ collection, use, processing, storage, transfer, or protection of Personal Information or any actual, alleged, or suspected violation of any applicable Law concerning privacy, data security, or data breach notification, and there are no facts or circumstances that could reasonably be expected to give rise to any such proceedings.

Section 5.18 Rights in Collateral; Priority of Liens. Each Loan Party owns the property granted by it as Collateral under the Loan Documents, free and clear of any and all Liens in favor of third parties other than Permitted Liens. Upon the proper filing and registration (as applicable) of the UCC financing statements or the equivalent thereof in any other country, the Liens in the Collateral granted to the Collateral Agent on behalf of the and for the benefit of the Secured Parties pursuant to the Loan Documents will constitute valid and enforceable first, prior and perfected Liens on the Collateral, subject only to Permitted Liens.

Section 5.19 Solvency. The Borrower and each of the Loan Parties which are Domestic Subsidiaries are Solvent both before and after giving effect to the Transactions. The Borrower and its Subsidiaries, on a consolidated basis, are Solvent both before and after giving effect to the Transactions. No transfer of property is being made by any Loan Party and no obligation is being incurred by any Loan Party in connection with the Transactions and the other transactions contemplated by this Agreement or the other Loan Documents or IP Hold-Co Documents with the intent to hinder, delay, or defraud either present or future creditors of such Loan Party.

Section 5.20 Business Locations; Taxpayer Identification Number. Set forth in Schedule 5.20 are: the list of all of each Loan Party’s locations and all locations where any Collateral is kept and each Loan Party’s chief executive office, exact legal name, U.S. taxpayer identification number and organizational identification number. Except as set forth in Schedule 5.20, no Loan Party has during the five (5) years preceding the Closing Date (vi) changed its legal name; (vii) changed its state of formation; or (viii) been party to a merger, consolidation or other change in structure.

Section 5.21 [Reserved].

Section 5.22 PATRIOT Act; Sanctions; Export Controls; FCPA.

(a) To the extent applicable, each of Borrower and its Subsidiaries is in compliance, in all material respects, with the PATRIOT Act.

(b) Borrower represents that neither Borrower nor any of its Subsidiaries nor any director, officer or employee thereof, nor, to its knowledge, any agent, affiliate or representative of Borrower or any Subsidiary, is an individual or entity that is, or is owned or controlled by a Person that is:

(i) listed in the annex to, or otherwise subject to the provisions of, Executive Order No. 13224 on Terrorist Financing effective September 24, 2001 (the “Executive Order”);

(ii) prohibited from dealing or otherwise engaging in any transaction by any domestic or applicable foreign laws with respect to terrorism or money laundering;

(iii) engaged in “terrorism” as defined in the Executive Order or in any applicable foreign laws;

(iv) the subject or target of any sanctions administered or enforced by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), the U.S. Department of State, the United Nations Security Council, the European Union, the State of Israel or Her Majesty’s Treasury (collectively, “Sanctions”); or

(v) located, organized or resident in a country or territory that is the subject of comprehensive Sanctions (including, without limitation, as of the date hereof, Cuba, Iran, North Korea, Syria and the Crimea region of the Ukraine) (each a “Designated Jurisdiction”).

(c) Borrower represents and covenants that it and its direct or indirect owners and its Subsidiaries will not, directly or, to its knowledge, indirectly, use the proceeds of the Loans, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:

(i) to fund or facilitate any activities or business (x) of or with any Person that, at the time of such funding or facilitation, is the subject or target of Sanctions or (y) in any country or territory that, at the time of such funding or facilitation, is the subject of comprehensive Sanctions; or

(ii) in any other manner that will result in a violation of Sanctions by any Person (including the Lenders or other party hereto).

(d) To the extent applicable, each of Borrower and its direct or indirect owners and its Subsidiaries is in compliance with the Export Control Regulations. Borrower represents that neither it nor its direct or indirect owners nor any of its Subsidiaries have engaged in transactions with, or exported any products, services or associated technical data: (i) into (or to a national or resident of) Cuba, Iran, North Korea, Syria, the Crimea region of the Ukraine or any other country or territory to which the United States had embargoed exports or with which the United States had proscribed economic transactions as of the date of such export or transaction; or (ii) to any person or entity included on the list of Specially Designated Nationals and Blocked Persons maintained by OFAC or the Denied Persons List maintained by the U.S. Department of Commerce as of the date of such transaction or export; or (iii) that would otherwise constitute or give rise to a violation of the Export Control Regulations. Borrower further represents that it and its direct or indirect owners and its Subsidiaries have instituted policies and procedures designed to ensure, and which are reasonably expected to ensure, compliance with the Export Control Regulations and with the representation and warranty contained herein.

(e) Borrower represents that neither it nor its direct or indirect owners nor any of its Subsidiaries nor any director, officer or employee thereof, has taken any action, directly or indirectly, that would result in a violation by any of the foregoing of the FCPA and the rules and regulations thereunder or any other applicable domestic or foreign anti-corruption law in any material respect. Borrower represents that to its knowledge, no agent, affiliate, representative or any other Person acting on behalf of Borrower, any of its direct or indirect owners or any of its Subsidiaries has taken any action, directly or indirectly, that would result in a violation by any of the foregoing of the FCPA and the rules and regulations thereunder or any other applicable domestic or foreign anti-corruption law. Borrower further represents that it and its direct or indirect owners and its Subsidiaries have instituted policies and procedures designed to ensure, and which are reasonably expected to ensure, compliance with the FCPA and any other applicable domestic or foreign anti-corruption law and with the representation and warranty contained herein.

(f) Borrower represents that the proceeds of the Loans will not be used by it or its direct or indirect owners or any of its Subsidiaries for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage in violation of the FCPA or any other applicable anti-corruption law in any material respect.

Section 5.23 Material Contracts. Schedule 5.23 (as supplemented from time to time) contains a true, correct and complete list of all the Material Contracts of the Borrower and its Subsidiaries and all such Material Contracts are in full force and effect and no defaults currently exist thereunder which would be adverse to the Borrower and its Subsidiaries or the Secured Parties in any material respect.

Section 5.24 Employee Matters. Except as set forth on Schedule 5.24, (i) each Loan Party and its Subsidiaries is in compliance with all requirements of applicable Law in all material respects pertaining to employment and employment practices, terms and conditions of employment, wages and hours, and occupational safety and health, (ii) no Loan Party or any Subsidiary is party to any collective bargaining agreement, nor has any labor union been recognized as the representative of the employees of any Loan Party of Subsidiary, (iii) there is no material unfair labor practice complaint pending or, to the best knowledge of any Loan Party, threatened against any Loan Party or any Subsidiary before any Governmental Authority and no grievance or arbitration proceeding pending or threatened against any Loan Party or any Subsidiary which arises out of or under any collective bargaining agreement, (iv) there has been no strike, work stoppage, slowdown, lockout, or other material labor dispute pending or, to the knowledge of any Loan Party, threatened against any Loan Party or any Subsidiary, (v) to the best knowledge of each Loan Party, no labor organization or group of employees has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened to be brought or filed, with the National Labor Relations Board, or any other labor relations tribunal or authority, and (vi) there are no outstanding claims, complaints, assessments or investigations against the Loan Parties or their Subsidiaries under the Employment Standards Act, Labour Relations Code, Human Rights Code or other comparable legislation in any applicable jurisdiction, nor are there any claims, complaints, assessments, or investigations filed against the Loan Parties or their Subsidiaries with the courts, boards and tribunals which govern the aforementioned legislation and regulations in each case which would be adverse to the Borrower and its Subsidiaries in any material respect. No Loan Party or Subsidiary has incurred any material liability or obligation under the Worker Adjustment and Retraining Notification Act (“WARN”) or any similar requirement of applicable Law which remains unpaid or unsatisfied. All material payments due from any Loan Party or Subsidiary on account of wages and employee health and welfare insurance and other benefits have been paid or accrued as a liability on the books of such Loan Party or Subsidiary.

Section 5.25 No Regulatory Restrictions on Borrowing, Guarantees or Upstreaming Cashflows. Except as disclosed on Schedule 5.25, to the Knowledge of the Loan Parties, no Loan Party nor any of their Subsidiaries is subject to regulation under any other Law, treaty, rule or regulation or determination of an arbitrator or court or other Governmental Authority or any other contractual restriction that limits its ability to incur or guarantee any Indebtedness under this Agreement or any Loan Document or to permit its Subsidiaries to upstream dividends and other distributions in the manner contemplated by Section 6.22 of this Agreement except as would not be adverse to the ability of the Borrower and its Subsidiaries to perform under the Loan Documents in any material respect.

Section 5.26 Rank of Debt. The obligations of each of the Loan Parties under the Loan Documents to pay the principal of and interest on the Loans and any and all other amounts due thereunder constitute direct and unconditional senior obligations of each such Loan Party and will at all times rank at least equal in right of payment with all other present and future indebtedness and other obligations of such Loan Party, except for any obligations in respect of employee compensation and benefits and taxes and other Permitted Liens in respect of obligations that are immaterial in the aggregate to the Loan Parties and their Subsidiaries, taken as a whole, which have priority under the laws of each Relevant Jurisdiction.

Section 5.27 No Set-off. The obligations of the Loan Parties under the Loan Documents are not subject to any defense, set-off or counterclaim by any of the Loan Parties or any circumstance whatsoever which might constitute a legal or equitable discharge from its obligations thereunder other than the defense of payment in full.

Section 5.28 No Immunity; Proper Legal Form; No Need To Qualify Under each Relevant Jurisdiction or other Applicable Law.

(a) None of the Loan Parties nor any of their properties have any immunity from the jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) under the laws of the United States, and each other Relevant Jurisdiction in respect of its obligations under the Loan Documents. To ensure the legality, validity, enforceability or admissibility into evidence in each Relevant Jurisdiction of the Loan Documents, it is not necessary that the Loan Documents or any other document be filed or recorded with any Governmental Authority in each Relevant Jurisdiction except for the translation into Hebrew of the Loan Documents by an approved translator and the filings relating to the grant and perfection of security interest in the Collateral described herein and in the other Loan Documents.

(b) Each of the Loan Documents is in proper legal form under the Laws of each Relevant Jurisdiction for the enforcement thereof against any of the Loan Parties under such Laws; provided that, in the event of enforcement of this Agreement in the courts of each Relevant Jurisdiction, the signatures of the parties signing outside of such country must be notarized and apostilled and a translation of this Agreement into the applicable language, prepared by a court-approved translator or other official translator shall be required. The submission to jurisdiction, appointment of the Process Agent, consents and waivers by the Loan Parties in Article XII of the Agreement are valid and irrevocable.

(c) It is not necessary in order for the Administrative Agent or any Lender to enforce any rights or remedies under the Loan Documents or solely by reason of the execution, delivery and performance by any of the Loan Parties of the Loan Documents that the Administrative Agent or any Lender be licensed or qualified with any Governmental Authority in each Relevant Jurisdiction, or be entitled to carry on business in any of the foregoing.

Section 5.29 Centre of Main Interests and Establishments. For the purposes of Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (recast) (the “Regulation”), its centre of main interest (as that term is used in Article 3(1) of the Regulation) is situated in its jurisdiction of incorporation and it has no "establishment" (as that term is used in Article 2(10) of the Regulation) in any other jurisdiction.

Section 5.30 Exchange Controls. Under current laws and regulations of each Relevant Jurisdiction and each political subdivision thereof, all interest, principal, premium, if any, and other payments due or to be made on the Loan or otherwise pursuant to the Loan Documents may be freely transferred out of such countries and may be paid in, or freely converted into, United States Dollars.

Section 5.31 Customers and Suppliers. There exists no actual or threatened in writing termination, cancellation or limitation of, or modification to or change in, the business relationship between (i) any Loan Party or any of its Subsidiaries, on the one hand, and any customer or any group thereof, on the other hand, whose agreements with any Loan Party or their Subsidiaries are individually or in the aggregate material to the business or operations of the Borrower and its Subsidiaries, or (ii) any Loan Party or Subsidiary, on the one hand, and any supplier or any group thereof, on the other hand, whose agreements with any Loan Party or any of their Subsidiaries are individually or in the aggregate material to the business or operations of the Borrower and its Subsidiaries; and there exists no present state of facts or circumstances that could give rise to or result in any such termination, cancellation, limitation, modification or change, in each case which could reasonably be expected to result in a Material Adverse Effect.

Section 5.32 Critical Technologies. Except for any items eligible for license exception ENC of the Export Administration Regulations (15 CFR Part 740.17), the Borrower and its Subsidiaries do not produce, design, test, manufacture, fabricate or develop any ‘critical technologies’ as that term is defined at 31 C.F.R. Part 800.215 (each a “Critical Technology”). For any product that is eligible for license exception ENC of the Export Administration Regulations (15 CFR Part 740.17), the Borrower and each of its Subsidiaries have complied with all Bureau of Industry Security submission requirements to perfect such exception.

Section 5.33 Products. (i) Except as set forth on Schedule 5.33, each Product has been and/or shall be manufactured, imported, possessed, owned, warehoused, marketed, promoted, sold, labeled, furnished, distributed and marketed in accordance with all applicable Regulatory Permits and applicable Laws, other than samples and Products shipped to the United States not for sale in the ordinary course of business without FCC approval and labeled as such; (ii) with respect to any Product being tested or manufactured by any Loan Party or any Subsidiary of any Loan Party, such Person has received, and such Product shall be the subject of, all Material Regulatory Permits needed in connection with the testing or manufacture of such Product as such testing is currently being conducted by or on behalf of such Person, and such Person has not received any notice from any applicable Governmental Authority that such Governmental Authority is conducting an investigation or review of (A) such Person's manufacturing facilities and processes for such Product which have disclosed any material deficiencies or violations of applicable Law (and/or the Material Regulatory Permits related to the manufacture of such Product), or (B) any such Material Regulatory Permit or that any such Material Regulatory Permit has been revoked or withdrawn, nor has any such Governmental Authority issued any order or recommendation stating that the development, testing and/or manufacturing of such Product by such Person should cease; and (iii) with respect to any Product marketed, leased, rented, or sold by any Loan Party or any Subsidiary of any Loan Party, such Person shall have received, and such Product shall be the subject of, all Material Regulatory Permits needed in connection with the marketing and sales of such Product as currently being marketed, leased, rented, or sold by such Person, and such Person has not received any notice from any applicable Governmental Authority that such Governmental Authority is conducting an investigation or review of any such Material Regulatory Permit or approval or that any such Material Regulatory Permit has been revoked or withdrawn, nor has any such Governmental Authority issued any order or recommendation stating that such marketing or sales of such Product cease or that such Product be withdrawn from the marketplace.

Each of the Secured Parties shall be entitled to rely on each such representation, warranty, certification or other statement made herein or in any Loan Document, including, for the avoidance of doubt, all representations and warranties in this Article V, notwithstanding whether any employee, representative or agent of a Secured Party seeking to enforce a remedy hereunder or under any other Loan Document knew or had reason to know of any breach or potential breach of any such representation, warranty, certification or other statement and regardless of any investigation by any Secured Party.

Article VI
AFFIRMATIVE COVENANTS

Until the Obligations have been fully satisfied and the Lenders’ commitment to advance credit has expired, the Borrower and the Loan Parties shall, and shall each cause each of their Subsidiaries to:

Section 6.01 Compliance with Laws. Comply in all respects with all applicable Laws, rules, regulations, orders, judgments and decrees of all Governmental Authorities except to the extent noncompliance therewith individually or in the aggregate could not reasonably be expected to have a Material Adverse Effect.

Section 6.02 Financial Statements. Deliver to the Administrative Agent and the Lenders, in form and detail satisfactory to the Administrative Agent and the Lenders:

(a) as soon as available, but in any event within one hundred eighty (180) days after the end of each fiscal year of (A) Borrower, a consolidated balance sheet of Borrower and its consolidated Subsidiaries as at the end of such fiscal year, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year and to the Financial Plan (as defined below), all in reasonable detail and prepared in accordance with GAAP, such consolidated statements to be audited and accompanied by a report and opinion of Xxxxx Xxxxxxx LLP or any other independent certified public accounting firm of nationally recognized standing selected by the Borrower and reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit (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); and (B) each other Subsidiary of the Borrower for which separate audited annual reports are available, a copy of such annual report containing unconsolidated and consolidated balance sheets of such reporting Person and its Subsidiaries as of the end of such fiscal year, in each case accompanied by a certification of such accountants as to the amount of Distributable Income with respect to such Person and each such Subsidiary during the preceding fiscal year (except to the extent already explicitly included in the foregoing financial statements);

(b) as soon as available, but in any event within forty-five (45) days after the end of each fiscal quarter, an unaudited consolidated balance sheet of Borrower and its Subsidiaries as at the end of such fiscal quarter, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal quarter and for the portion of Borrower’s fiscal year then ended, setting forth in each case in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and corresponding portion of the previous fiscal year and to the Financial Plan, all in reasonable detail and prepared in accordance with GAAP, such consolidated statements to be certified by Borrower’s chief executive officer, chief financial officer or treasurer as fairly presenting the financial condition, results of operations, shareholders’ equity and cash flows of Borrower and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes;

(c) as soon as available, but in any event within thirty (30) days after the end of each month, (i) an unaudited consolidated balance sheet of Borrower and its Subsidiaries as at the end of such month, (ii) the related consolidated statements of income or operations, shareholders’ equity and cash flows for such month and for the portion of Borrower’s fiscal year then ended, (iii) Unrestricted Cash, expense summaries and gross and net revenue with respect to each Product of Borrower and its Subsidiaries as at the end of such month (and if such month is also a fiscal quarter end, for such fiscal quarter) and (iv) if such month is also a fiscal quarter end, a summary detailing the Products sold to each Key Customer for such fiscal quarter and for the portion of Borrower’s fiscal year then ended, setting forth in each case comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and corresponding portion of the previous fiscal year and to the Financial Plan (if available), all in reasonable detail (and where applicable prepared in accordance with GAAP) with such summaries to be certified by Borrower’s chief executive officer, chief financial officer or treasurer as fairly presenting the financial condition, results of operations, shareholders’ equity and cash flows revenue, expenses and sales of Borrower and its Subsidiaries in accordance with GAAP (subject only to normal year-end audit adjustments and the absence of footnotes);

(d) as soon as available and not later than the date quarterly financial statements are required to be delivered pursuant to Section 6.02(b) above, a report specifying the cash and Cash Equivalents of the Borrower and its Subsidiaries by entity and by account jurisdictions, Operating Expenses, account aging and other key operating metrics, and detailing the products sold by Borrower and its Subsidiaries, the number of revenue producing customers, backlog and headcount of Borrower and its Subsidiaries, in each case certified by the chief financial officer (or equivalent) of Borrower;

(e) as soon as available, but in any event within forty-five (45) days after the end of each fiscal year of Borrower, an annual operating budget and plan prepared on a quarterly basis together with financial projections for such year each in the form approved by the Borrower’s Board of Directors and otherwise in form and substance satisfactory to the Administrative Agent (any such approved budget, plan and projection, a “Financial Plan”), including (i) a forecasted consolidated balance sheet and forecasted consolidated statements of income and cash flows of Borrower and its Subsidiaries for each such fiscal year, together with pro forma Compliance Certificates for each such fiscal year and an explanation of the assumptions on which such forecasts are based, (ii) forecasted consolidated statements of income and cash flows of Borrower and its Subsidiaries for each quarter of each such fiscal year, (iii) forecasts demonstrating adequate liquidity and projected compliance with the requirements of Section 7.16 through the final maturity date of the Loans, together, in each case, with an explanation of the assumptions on which such forecasts are based and for each fiscal year (or portion thereof) through the final Maturity Date, accompanied by a certificate of a Responsible Officer certifying that such Financial Plan is a reasonable estimate for the periods covered thereby;

(f) if, as a result of any change in accounting principles and policies from those used in the preparation of the Historical Financial Statements, the consolidated financial statements of Borrower and its Subsidiaries delivered pursuant to Section 6.02(a) or Section 6.02(b) will differ in any material respect from the consolidated financial statements that would have been delivered pursuant to such subdivisions had no such change in accounting principles and policies been made, then, together with the first delivery of such financial statements after such change, one (1) or more statements of reconciliation for all such prior financial statements in form and substance reasonably satisfactory to Administrative Agent and the Lenders.

Section 6.03 Certificates; Other Information. Deliver to the Administrative Agent and the Lenders, in form and detail reasonably satisfactory to the Administrative Agent and the Requisite Lenders:

(a) concurrently with the delivery of the financial statements referred to in Section 6.02(a), a certificate of independent certified public accountants certifying such financial statements;

(b) (i) concurrently with the delivery of the financial statements referred to in Sections 6.02(a), 6.02(b), and 6.02(c), a duly completed Compliance Certificate signed by the chief executive officer, chief financial officer or treasurer of Borrower and attaching (i) the calculations necessary for determining compliance of the Borrower and its Subsidiaries with Section 7.16 of this Agreement as of the last date of such the relevant fiscal period referred to therein, (ii) together with a copy of management’s discussion and analysis for the financial conditions and results of operations of the Borrower and its Subsidiaries for such period, as compared to prior periods and the Financial Plan, along with details of any material developments or proposals affecting the Loan Parties or their business and the reason for any significant variations from the Financial Plan and prior periods, (iii) a report (x) supplementing the Perfection Certificate and disclosure schedules to this Agreement and the Security Documents and Collateral Documents, including (A) a list and description (including the street address, county or other relevant jurisdiction, state, record owner, book value thereof and, in the case of leases of property, lessor, lessee, expiration date and annual rental cost thereof) of all material real property acquired or leased during such fiscal year and a description of such other changes in the information included in such certificate or as may be necessary for the Schedules to the Security Documents and Collateral Documents to be accurate and complete; (B) a list of registration numbers for all patents, trademarks, service marks, trade names and copyrights awarded to any Loan Party or any Subsidiary thereof during such fiscal period, (c) a list of all patent applications, trademark applications, service xxxx applications, trade name applications and copyright applications submitted by any Loan Party or any Subsidiary thereof during such period and the status of each such application and (y) certifying that all UCC financing statements and other appropriate filings, recordings or registrations, including all re-filings, re-recordings and re-registrations, have been filed of record in each governmental, municipal or other appropriate office in each jurisdiction necessary to protect and perfect the Liens under the Collateral Documents for a period of not less than twelve (12) months after the date of such certificate, or indicating otherwise;

(c) promptly and in no case later than the tenth (10^th) day after the same are received by a Responsible Officer of a Loan Party, copies of any final audit reports, management letters or recommendations submitted to Borrower’s or such Subsidiary’s Board of Directors (or the audit committee of the Board of Directors) by independent accountants in connection with the accounts or books of Borrower or any Subsidiary, or any audit of any of them;

(d) promptly after the same are released, copies of all press releases;

(e) promptly and in no case later than the third (3^rd) Business Day after the furnishing thereof, copies of any material statement or report furnished to any holder of debt or equity securities of any Loan Party or any Subsidiary thereof pursuant to the terms of any indenture, loan or credit or similar agreement and not otherwise required to be furnished to the Secured Parties pursuant hereto;

(f) promptly, and in any event within five (5) Business Days after receipt thereof by any Loan Party or any Subsidiary thereof, copies of (i) each notice or other correspondence received from any Governmental Authority (including the FCC, The Office of Communications, the SEC or comparable agencies in any applicable jurisdictions) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of any Loan Party or any Subsidiary thereof; and (ii) subpoenas, requests for information and other notices regarding any licenses or permits necessary to operate the business, any active or potential investigation of, or claim or litigation against, any Loan Party or any Subsidiary thereof by any Governmental Authority, and the results of any Governmental Authorities or any inspections of any manufacturing facilities of any Loan Party or any Subsidiary thereof or to the extent provided to a Loan Party or a Subsidiary thereof, any third party suppliers of any Loan Party or any Subsidiary thereof by any Governmental Authority;

(g) promptly and in no case later than the third (3^rd) Business Day following a Secured Party’s request, proof of the Loan Parties’ compliance with Section 7.16(a);

(h) [Reserved];

(i) within five (5) days of delivery, copies of all statements, reports and notices (including board kits and other materials) made available to the Board of Directors of any Loan Party or any of their Subsidiaries or the holders of their Equity Interests generally;

(j) [Reserved];

(k) promptly, and in any event within ten (10) days after any Loan Party or any Subsidiary thereof obtains knowledge of any return, recovery, dispute or claim related to Products or inventory or other property or assets of the Loan Parties or their Subsidiaries that involves more than One Million Dollars ($1,000,000) in each instance or in the aggregate;

(l) Borrower will furnish to Administrative Agent and the Lenders prior written notice of any change (i) in any Loan Party’s corporate name, (ii) in any Loan Party’s identity or corporate structure, or (iii) in any Loan Party’s Federal Taxpayer Identification Number. Borrower agrees not to effect or permit any change referred to in the preceding sentence unless all filings have been made under the UCC (or the local law equivalent in each applicable jurisdiction) or equivalent foreign filings or otherwise that are required in order for Administrative Agent to continue at all times following such change to have a valid, legal and perfected security interest in all of the Collateral and for the Collateral at all times following such change to have a valid, legal and perfected security interest as contemplated in the Loan Documents. Borrower also agrees promptly to notify Administrative Agent and the Lenders if any material portion of the Collateral is damaged or destroyed which would be adverse to the Borrower and its Subsidiaries or the Secured Parties in any material respect;

100

(m) promptly, and in any event within five (5) Business Days after receipt thereof by any Loan Party or any Subsidiary, (i) copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of any Loan Party or any Subsidiary and (ii) copies of any material written correspondence or any other material written communication from the FCC or any other Governmental Authority or other regulatory body;

(n) promptly upon their being filed, copies of (i) after an initial public offering or SPAC Transaction, all copies of each annual report, financial statements, proxy statements, or other reports, notices or communications sent to its security holders acting in such capacity and (ii) all regular, special and periodic reports and all registration statements and prospectuses, if any, filed by the issuer of the initial public offering or SPAC Transaction or Borrower or any of their Subsidiaries with any securities exchange or with the SEC;

(o) [Reserved];

(p) promptly, such additional information regarding the business, financial or corporate affairs of Borrower or any Subsidiary, or compliance with the terms of the Loan Documents, as the Agents or any of the Lenders may from time to time reasonably request; or

(q) promptly upon request by the Administrative Agent or any Lender, information and documentation for purposes of compliance with beneficial ownership regulations or any applicable “know your customer” requirements under the PATRIOT Act or other applicable anti-money laundering laws.

Documents required to be delivered pursuant to Section 6.02 or Section 6.03(d) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which Borrower posts such documents, or provides a link thereto on Borrower’s website on the Internet at the website address listed in Schedule 6.03; or (ii) on which such documents are posted on Borrower’s behalf on an Internet or intranet website, if any, to which the Secured Parties have access (whether a commercial, third-party website or whether sponsored by the Agents); provided that upon the Lenders’ request Borrower shall (A) deliver paper copies of such documents to the Agents and the Lenders or (B) provide the Agents and Lenders (by fax or electronic mail) with notice of the posting of any such documents contemporaneously with each such posting. Notwithstanding anything to the contrary contained in Section 6.02, Section 6.03 or Section 6.04, effective immediately upon delivery of a written notice (an “Information Declination Notice”) by a Lender to Borrower and the Administrative Agent that such Lender no longer wishes to receive the items described in such sections (or any subclauses thereof), neither Borrower nor any other Loan Party shall be required to deliver any such items to such Lender, pursuant to the terms of this Agreement or any other Loan Document. Each Lender may, in its sole discretion, rescind any Information Declination Notice by the delivery of written notice of such rescission to Borrower, at which time any obligations to comply with Section 6.02, Section 6.03 and/or Section 6.04 (or any subclauses thereof) shall be reinstated as of the date of delivery of such notice.

Section 6.04 Notices. The Borrower shall furnish to the Administrative Agent and the Lenders written notice of any of the following:

(a) promptly, but in any event not later than the third (3^rd) Business Day after a Responsible Officer of Borrower or any Subsidiary obtaining Knowledge of the occurrence of any Default or Event of Default, specifying the nature and extent thereof and the corrective action (if any) proposed to be taken with respect thereto;

101

(b) promptly, but in any event not later than five (5) Business Days after a Responsible Officer of Borrower or any Subsidiary obtaining Knowledge of any of the following: (A) (i) of the occurrence of any ERISA Event specifying in such notice a description ERISA Event and the actions, if any, proposed to be taken with respect to such ERISA Event together with a copy of any notice filed with the PBGC or the IRS pertaining to such ERISA Event, (ii) the receipt of any other notices received by Borrower, such Subsidiary or such ERISA Affiliate from the PBGC or any other governmental agency with respect thereto (attaching copies thereof), and/or (iii) (1) becoming aware that there has been an increase in Unfunded Pension Liabilities (not taking into account Pension Plans with negative Unfunded Pension Liabilities) of more than One Million Dollars ($1,000,000) since the date the representations hereunder are given or deemed given, or from any prior notice, as applicable, (2) of the existence of any Withdrawal Liability, (3) of the adoption of, or the commencement of contributions to, any Pension Plan subject to Section 412 of the Code by Borrower, any of its Subsidiaries or any ERISA Affiliate, or (4) of the adoption of any amendment to a Pension Plan subject to Section 412 of the Code which results in a material increase in contribution obligations of Borrower, any of its Subsidiaries or any ERISA Affiliate, a detailed written description thereof, as well as, (B) together copies of such other documents or governmental reports or filings relating to any Pension Plan as Administrative Agent or the Lenders shall reasonably request;

(c) promptly, but in any event not later than the third (3^rd) Business Day after a Responsible Officer of Borrower or any Subsidiary obtaining Knowledge of any matter that has resulted or could reasonably be expected to result in a Material Adverse Effect, including (i) breach or non-performance of, or any default under, any Material Indebtedness of Borrower or any subsidiary; (ii) any dispute, litigation, investigation, proceeding or suspension between Borrower or any Subsidiary and any Governmental Authority; or (iii) the commencement of, or any material development in, any litigation or proceeding affecting Borrower or any Subsidiary, including pursuant to any applicable Environmental Laws in each case to the extent it would reasonably be expected to result in a liability in excess of One Million Dollars ($1,000,000) or a Material Adverse Effect;

(d) promptly, but in any event not later than five (5) Business Days after a Responsible Officer of Borrower or any Subsidiary obtaining Knowledge of any of the following (i) the termination of any Material Contract other than in accordance with its terms; or (ii) any material amendment to a Material Contract or other notice or event relating to a Material Contract or Material Indebtedness, in each case that could materially impair the value of the interests or rights of the Borrower or its Subsidiaries, and in each case, together with copies of all notices, requests and other documents (including amendments, waivers and other modifications) entered into or received in connection therewith;

(e) promptly, but in any event not later than five (5) Business Days after a Responsible Officer of Borrower or any Subsidiary obtaining Knowledge of any of the following: (i) any litigation, arbitration, governmental investigation or Adverse Proceeding not previously disclosed to the Borrower which has been instituted or is threatened against the Loan Parties or their Subsidiaries or their properties which could be reasonably be expected to result in losses and/or expenses in excess of One Million Dollars ($1,000,000), or (ii) any material development in any Adverse Proceeding that could be reasonably expected to have a Material Adverse Effect, or that seeks to enjoin or otherwise prevent the consummation of, or to recover any damages or obtain relief as a result of, the transactions contemplated hereby, written notice thereof together with such other information regarding the details thereof and anticipated costs and liabilities associated therewith as may be reasonably available to Borrower and/or necessary or desirable to enable the Secured Parties and their counsel to evaluate such matters;

(f) promptly, but in any event not later than five (5) Business Days after a Responsible Officer of Borrower or any Subsidiary obtaining Knowledge of any of the following, written notice of any change in the board of directors (or similar governing body) of Borrower or any of its subsidiaries;

102

(g) promptly, but in any event not later than ten (10) Business Days after a Responsible Officer of Borrower or any Subsidiary obtaining Knowledge of any of the following, written notice of any material change in accounting policies or financial reporting practices by any Loan Party or any Subsidiaries thereof;

(h) promptly, but in any event not later than five (5) Business Days after a Responsible Officer of Borrower or any Subsidiary obtaining Knowledge of any material deviations or updates to the Patent Prosecution Workplan then in effect;

(i) promptly upon the occurrence of any Transfer of property or assets, incurrence of Indebtedness or other event, in each case for which the Loan Parties are required to make a mandatory prepayment pursuant to Section 2.01(e) and the receipt of Net Cash Proceeds in connection therewith;

(j) promptly, and in any event within five (5) Business Days after receipt thereof by any Loan Party or any Subsidiary, copies of the findings of any inspections of any manufacturing facilities of any Loan Party, any Subsidiary or any third party suppliers of any Loan Party or any Subsidiary by any Governmental Authority in each case if the result of such inspection would reasonably be expected to result in a material fine, or have an adverse impact on the Borrower and its Subsidiaries or their business in any material respect; and

(k) to the extent (i) any pre-existing products or services provided by the Borrower or any of its Subsidiaries are re-categorized by the U.S. government as a Critical Technology, or would reasonably be considered to constitute the design, fabrication, development, testing, production or manufacture of a Critical Technology after a re-categorization of selected technologies by the U.S. government, or (ii) after the date hereof the Borrower engages in any activity that could reasonably be considered to constitute the design, fabrication, development, testing, production or manufacture of a Critical Technology, in each case, that is not eligible for license exception ENC, the Borrower shall promptly, and in any event within ten (10) Business Days after a Responsible Officer of the Borrower or its Subsidiaries obtains Knowledge thereof notify the Administrative Agent of such change in the categorization of its products or services.

Section 6.05 Payment of Obligations. Pay and discharge as the same shall become due and payable, (a) all tax liabilities, assessments and governmental charges or levies upon it or its properties or assets, unless the same are being contested in good faith by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained by Borrower or such Subsidiary; (b) all lawful claims which, if unpaid, would by Law become a Lien upon its property other than Permitted Liens; (c) all Obligations, as and when due and payable subject to any applicable grace or cure periods and (d) all other material obligations and liabilities, in each case except to the extent such nonpayment could not reasonably be expected to have a Material Adverse Effect.

Section 6.06 Books and Records. (a) Maintain proper books of record and account, in which full, true and correct entries in conformity with GAAP consistently applied shall be made in all material respects of all financial transactions and matters involving the assets and business of Borrower or such Subsidiary, as the case may be and (b) maintain such books of record and account in material conformity with all applicable requirements of any Governmental Authority having regulatory jurisdiction over Borrower or such Subsidiary, as the case may be.

103

Section 6.07 Inspection Rights. Permit representatives and independent contractors of the Secured Parties to visit and inspect any of its properties, to examine its corporate, financial and operating books and records and to discuss its affairs, finances and accounts with its directors, officers, and independent public accountants, all at the expense of the Loan Parties and at such reasonable times during normal business hours, upon reasonable advance notice to Borrower not more than two (2) times each calendar year (in the absence of an Event of Default); provided, however, that (a) when an Event of Default exists the Secured Parties (or any of their respective representatives or independent contractors) may do any of the foregoing as often as may be reasonably desired, at the expense of the Loan Parties at any time during normal business hours and without advance notice; and (b) the Loan Parties shall pay the reasonable expenses of two visits and inspections during any calendar year unless an Event of Default has occurred and is continuing.

Section 6.08 Litigation Cooperation. Make available to the Secured Parties, without expense to the Secured Parties, Borrower’s, its Subsidiaries and their directors, officers, employees and agents and its corporate, financial and operating books and records to the extent that the Secured Parties may deem them reasonably necessary to prosecute or defend any third-party suit or proceeding instituted by or against the Secured Parties with respect to any Collateral (including the Assigned Patent Rights) or the Obligations.

Section 6.09 Use of Proceeds. Use the Loan proceeds for growth capital, working capital, the retirement or exchange of any Existing Indebtedness and other general corporate purposes; provided however, in no case can any portion of proceeds be used (x) to fund any dividend or similar payments or (y) in a manner that causes or might cause such credit extension or the application of such proceeds to violate Regulation T, Regulation U or Regulation X of the Federal Reserve Board or any other regulation thereof or to violate the Exchange Act or any applicable laws. Up to Five Hundred Thousand Dollars ($500,000) of such Loan proceeds (or such lesser amount agreed with the Administrative Agent) must be applied to patent prosecution, development and enhancement (such patent prosecution, development and enhancement to be subject to and in accordance with the Patent Prosecution Workplan).

Section 6.10 Preservation of Existence, Etc. (a) Preserve, renew and maintain in full force and effect its legal existence and good standing under the Laws of the jurisdiction of its organization, except changes otherwise permitted under this Agreement or a loss of status that is not material or adverse in any respect to the Secured Parties or Obligations and that is reinstated promptly after the Borrower has Knowledge of such loss of status; (b) take all action to maintain all rights, privileges, permits, licenses and franchises reasonably necessary in the normal conduct of its business.

Section 6.11 Maintenance of Properties; Improvement of Material Deficient Assigned Patents. (a) Maintain or cause to be maintained in good repair, working order and condition (ordinary wear and tear excepted) all material properties used or useful in the business of Borrower and its Subsidiaries and from time to time will make or cause to be made all appropriate repairs, renewals and replacements thereof and (b) improve, maintain, enforce and protect all of the Material Intellectual Property, maintain and keep in full force and effect all issued or registered Material Intellectual Property and continue to prosecute all applications for any Material Intellectual Property.

Within thirty (30) days after the Closing Date (or such longer period as agreed by the Administrative Agent in its sole discretion), evidence that the Borrower and its Subsidiaries (i) have taken all required actions to obtain signatures on corrective assignment documents and record such documents in the USPTO to correct deficiencies in the set of material Deficient Assigned Patents that were identified by Fortress to Borrower prior to the Closing Date, and (ii) that the applicable assignment document templates used by Borrower and its Subsidiaries shall be updated to conform to the language provided in the versions of the corrective assignment agreements provided by Fortress prior to the Closing Date and once updated, such updated assignment templates shall be used by Borrower and its Subsidiaries in relation to all patent applications that are or become part of the Assigned Patent portfolio from that point forward (unless case law or statute dictates that any further changes are required); it being understood that following the request of the Borrower, the Administrative Agent may waive in its sole discretion, elect to waive any required action relating to (i) above that cannot be reasonably accomplished by Borrower or its Subsidiaries after commercially reasonable efforts by such Persons to take such actions.

104

Section 6.12 Collateral and Guarantee Requirements; Formation or Acquisition of Subsidiaries. At the Borrower’s expense, take all action necessary or reasonably requested by either Agent to ensure that the Collateral and Guarantee Requirement (subject to the limitations set forth therein and in the Collateral Documents) continues to be satisfied, including:

(a) With respect to each new Subsidiary of the Loan Parties acquired or formed from time to time, on or prior to the date such Person becomes a Subsidiary of the Loan Parties (or such later date agreed by the Administrative Agent (in its sole discretion)), the Borrower shall send a notice to the Administrative Agent (i) setting forth the date on which such Person became (or will become) a Subsidiary of a Loan Party, (ii) setting forth all of the data required to be set forth in Schedule 5.13 with respect to all Subsidiaries of the Loan Parties (and any such written notice shall be deemed to supplement Schedule 5.13 for all purposes hereof) and (iii) confirming that such Person will be a Guarantor and that the Equity Interests in and assets of such Person will become Collateral (or detailing why such Persons or assets are Excluded Assets or such person is an Immaterial Foreign Subsidiary).

(b) Domestic Subsidiaries. In the event that (x) any Person becomes a Domestic Subsidiary of a Loan Party, (y) any Loan Party or any of their Subsidiaries, limited liability companies, other entities or other Persons divides or splits itself or an existing Subsidiary otherwise creates a new Domestic Subsidiary, then within twenty (20) days after such event (or such later date agreed by the Administrative Agent (in its sole discretion)) the Loan Parties shall (a) cause such Subsidiary to become a Guarantor hereunder and a Grantor under the applicable Collateral Documents by executing and delivering to the Administrative Agent and the Lenders a joinder or Counterpart Agreement, and (b) take all such actions and execute and deliver, or cause to be executed and delivered, all Subsidiary Accession Requirements, and all such formalities, opinions, documents, instruments, agreements, and certificates and other requirements as are similar to those described in Schedule E to the Reaffirmation and Omnibus Amendment Agreement, Section 3.01 and Section 6.26 of this Agreement delivered with respect to Domestic Subsidiaries on the Closing Date (or required to be delivered as part of the post-closing obligations described in Section 6.26), or that are requested by the Agents or the Lenders and necessary or desirable to protect, evidence or perfect the security interest of the Collateral Agent in a manner similar to the Liens and assets granted by the existing Loan Parties under the existing Collateral Documents and/or to comply with the Collateral and Guarantee Requirement either by executing and delivering to the Agents a counterpart or supplement to the existing Security Documents or such new documents as are necessary or desirable to evidence, grant or perfect a First Priority Lien in such assets in favor of Collateral Agent, for the benefit of the Lenders (including, without limitation, any pledges of Equity Interests (other than with respect to Excluded Assets), any counterparts or joinders to the Intercompany Subordination Agreement, together with any powers, certificates, registrations, filings, control agreements, intellectual property security agreements, local law Mortgages, security documents, Collateral Documents and/or equivalents required in connection therewith).

105

(i) Existing Asset Security Jurisdictions. In the event that (x) any Person becomes a Foreign Subsidiary of a Loan Party (other than any member of the Dense Air Group and the Specified Immaterial Foreign Subsidiary) that is organized or formed in an Asset Security Jurisdiction which is an Initial Asset Security Jurisdiction or an jurisdiction which an existing Foreign Subsidiary which is already a Loan Party is organized or formed (the “Existing Asset Security Jurisdictions” and each, an “Existing Asset Security Jurisdictions”), (y) any Loan Party or any of their Subsidiaries, limited liability companies, other entities or other Persons divides or splits itself or an existing Subsidiary otherwise creates a new Subsidiary that is organized or formed in an Existing Asset Security Jurisdiction (other than any member of the Dense Air Group), then within (A) in the case of a Person organized or formed in England and Wales, twenty (20) days after such event (or such later date agreed by the Administrative Agent (in its sole discretion)) or (B) in the case of a Person organized or formed in England and Wales, sixty (60) days after such event (or such later date agreed by the Administrative Agent (in its sole discretion)), the Loan Parties shall (a) cause such Subsidiary to become a Guarantor hereunder and a Grantor under the applicable Collateral Documents by executing and delivering to the Administrative Agent and the Lenders a joinder or Counterpart Agreement, or as the context may require, such new or additional Loan Documents to provide a guarantee by such new Subsidiary, and (b) take all such actions and execute and deliver, or cause to be executed and delivered, all such formalities, opinions, documents, instruments, agreements, and certificates, filings, registrations and other requirements as are similar to those described in Schedule E to the Reaffirmation and Omnibus Amendment Agreement, Section 3.01 and Section 6.26 of this Agreement delivered with respect to a Loan Party organized in such Existing Asset Security Jurisdiction on the Closing Date (or required to be delivered as part of the post-closing obligations described in Section 6.26), or that are requested by the Agents or the Lenders and necessary or desirable to protect, evidence or perfect the security interest of the Collateral Agent in a manner similar to the Liens and assets granted by the existing Loan Parties under the existing Collateral Documents and/or to comply with the Collateral and Guarantee Requirement either by executing and delivering to the Agents a counterpart or supplement to the existing Collateral Documents or such new documents as are necessary or desirable to evidence, grant or perfect a First Priority Lien to the Collateral Agent for the benefit of the Lenders in the assets of such new Subsidiary and, if such new Subsidiary is a first tier Subsidiary of a Loan Party, the Equity Interests in such Subsidiary as has been previously provided in the Existing Asset Security Jurisdictions (including, if necessary, any new Collateral Documents or additional documents, evidences, certificates, instruments, agreements and filings as may be reasonably requested by the Agent in order to provide a Guarantee or evidence, grant, perfect or protect a First Priority Lien in such assets in favor of Collateral Agent, for the benefit of the Secured Parties (including, without limitation, any parallel debt arrangements, local law debentures or share charges, any counterparts or joinders to the Intercompany Subordination Agreement, together with any notices, acknowledgements, powers, certificates, registrations, filings, or local law Mortgages or equivalent Collateral Documents or deliveries necessary or desirable in connection therewith to cover assets classes that had previously been granted or perfected by Collateral Documents in such jurisdiction or in order to cover additional asset classes which had not previously been granted and perfected in such jurisdiction, but that had been previously granted or had previously been required to be granted as Collateral in the Existing Asset Security Jurisdictions generally, including, without limitation, any pledges of Equity Interests in subsidiaries of such Person in Existing Asset Security Jurisdictions)) (each in form and substance reasonably acceptable to the Agent, (a) and (b) collectively, the “Foreign Subsidiary Accession Requirements”).

106

(ii) Additional Asset Security Jurisdictions. In the event that (x) any Foreign Subsidiary (other than any member of the Dense Air Group) organized in a jurisdiction other than the Existing Asset Security Jurisdictions or the Other Material Jurisdictions ceases to be an Immaterial Foreign Subsidiary or (y) the Subsidiaries of the Borrower which are not Asset Security Providers (as defined below) taken as a whole exceed the Immaterial Foreign Subsidiary Threshold, then the Loan Parties shall notify the Agent of such event and, if requested by the Agent, within sixty (60) days after such event (or such later date agreed by the Administrative Agent (in its sole discretion) (the “Joinder Date”), the Loan Parties shall cause a Subsidiary or Subsidiaries as it elects to become parties to the Credit Agreement and other Loan Documents as Guarantors (or if such Subsidiary is organized in India for so long as a guarantee, pledge of its Equity Interests, or other grant of security interest would require consent of the Reserve Bank of India, the Borrower may designate other Subsidiaries which are not Loan Parties and Asset Security Providers in jurisdictions other than India or the Existing Security Jurisdictions) (such additional designated jurisdictions, the “Additional Asset Security Jurisdictions” and each, an “Additional Asset Security Jurisdiction” and together with any Existing Asset Security Jurisdictions, the “Asset Security Jurisdictions” and each, an “Asset Security Jurisdiction” and each such additional Subsidiary, an “Additional Asset Security Provider”) as it elects in order comply with the Collateral and Guarantee Requirements and Subsidiary Accession Requirements such that after giving pro form effect to the Guarantees and additional Collateral Documents in the Additional Asset Security Jurisdiction the Subsidiaries that are not Loan Parties and not Asset Security Providers shall not exceed the Immaterial Foreign Subsidiary Threshold. It being understood that each such Loan Party and Additional Asset Security Provider shall deliver and cause such Subsidiaries to take all actions and execute and deliver, or cause to be executed and delivered by not later than the applicable Joinder Date a joinder to this Agreement as a Guarantor and the Collateral Documents and/or applicable foreign equivalents of the Collateral Documents together with appropriate corporate formalities, opinions, documents, instruments, agreements and certificates and other requirements for such Guarantees and/or Collateral that would have be the local law equivalent of those conditions precedent required to be delivered pursuant Section 5 of the Reaffirmation and Omnibus Amendment Agreement, Section 3.01 and Section 6.26 of this Agreement, the Collateral and Guarantee Requirements and the Foreign Subsidiary Accession Requirements, together with such additional documents, evidence, certificates, instruments, agreements and filings as may be reasonably requested by the Agent in order to evidence, grant, perfect or protect a First Priority Lien in the same types and classes of as had been previously required of the existing Loan Parties in the Existing Asset Security Jurisdictions described above but, in each case, taking into account local law formalities, market practices and requirements in order to effectuate such guarantee and collateral arrangements).

Notwithstanding the foregoing, if a Loan Party does not own assets of a particular category at the time it enters into Collateral Document(s) in respect of assets of one or more other categories specified in the existing Collateral Documents or the Collateral and Guarantee Requirements, such Loan Party will not be required to enter into a Collateral Document solely to create a security interest over future assets of that particular category unless the same can be effected under a composite Collateral Document that also secures assets it owns at the time it enters into the Collateral Document or pursuant to entering into a joinder to the same form of Collateral Document as entered into by another Loan Party in the same jurisdiction covering the same class of assets. However, if such Loan Party subsequently acquires assets of that particular category and other existing Loan Parties in that jurisdiction were required to create a security interest over such class of assets or would have been so required if such assets had been owned at the time the relevant Collateral Document(s) was entered into, the Borrower shall notify the Agent by not later than the date that the next Compliance Certificate is delivered pursuant to Section 6.02(e), and if requested by the Agent, as soon as reasonably practicable thereafter, such Loan Party shall create and perfect its security interest over that asset or those assets to the extent required by the Collateral and Guarantee Requirements and take such actions required under the applicable Law in order to ensure the grant, perfection, protection and enforceability of a First Priority Lien in such assets.

107

Notwithstanding any of the other Collateral and Guarantee Requirements contained in this Agreement, it is understood and agreed with respect to the Japanese Guarantor that, other than the execution of the Intercompany Subordination Agreement and the Rakuten Receivables Assignment Agreement, there will be no requirement for the Borrower to enter into any additional Japanese law governed Collateral Documents to pledge its Equity Interests in the Japanese Guarantor or for the Japanese Guarantor to enter into any additional Collateral Documents to grant, evidence or perfect the Collateral Agent’s security interest in any of the Japanese Guarantor’s assets prior to the six (6) month anniversary of the Closing Date. If the Borrower has not delivered evidence in form and substance satisfactory to the Agent prior to the six (6) month anniversary of the Closing Date that the Borrower (or one of the Loan Parties which is a Domestic Subsidiary or a Subsidiary organized or formed in England and Wales) has become the Rakuten receivables billing entity, then within sixty (60) days after such anniversary (or such later date agreed by the Administrative Agent (in its sole discretion)), the Borrower and its Subsidiaries shall enter into such Collateral Documents necessary or desirable to evidence a pledge of the Borrower’s Equity Interests in the Japanese Guarantor and to grant, perfect, protect and evidence a First Priority Lien in the assets of the Japanese Guarantor (including, taking all such additional steps and providing all such additional Collateral Documents, corporate formalities, opinions, documents, instruments, agreements and certificates and other requirements that are the local law equivalents of those conditions precedent required to be delivered pursuant Section 5 of the Reaffirmation and Omnibus Amendment Agreement, Section 3.01 and Section 6.26 of this Agreement by the other Asset Security Providers on the Closing Date (or required to be delivered as part of the post-closing obligations described in Section 6.26) taking into account Japanese local law formalities, market practices and requirements in order to effectuate such guarantee and collateral arrangements).

Section 6.13 Insurance. Keep its business insured for risks and in amounts standard for companies in Borrower’s and its Subsidiaries’ industry and location. Insurance policies shall be in a form, with companies, and in amounts that are reasonably satisfactory to the Agent. (i) All property policies of Borrower and its Subsidiaries shall have a lender’s loss payable endorsement showing the Agent as a lender loss payee and waive subrogation against the Agent; (ii) all liability policies of Borrower and its Subsidiaries shall show, or have endorsements showing, the Agent as an additional insured; and (iii) all policies of Borrower and its Subsidiaries (or their respective endorsements) shall provide that the insurer shall give the Agent at least thirty (30) days’ before canceling, amending or declining to renew its policy. At the Agent’s request, Borrower and its Subsidiaries shall deliver certified copies of policies, certificates of insurance, endorsements and evidence of all premium payments. If the Loan Parties fail to obtain insurance as required under this Section 6.13 or to pay any amount or furnish any required proof of payment to third persons and the Agent, the Agent may upon concurrent notice to Borrower make all or part of such payment or obtain such insurance policies required in this Section 6.13, and take any action under the policies the Administrative Agent reasonably deems prudent.

Section 6.14 Conduct of Business and SPV Compliance. Borrower shall, and shall use all commercially reasonable efforts to the full extent of its power to cause each of its Subsidiaries to, comply with the following conduct of business provision (the “Conduct of Business Provisions”):

(a) Except with the advance written consent of the Administrative Agent acting at the direction of the Requisite Lenders, the IP Hold-Co will not own any asset or property other than (i) the Company Patent Portfolio (as defined in the IP Hold-Co Operating Agreement) and the proceeds and revenues thereof; and (ii) incidental tangible property necessary for the ownership or maintenance of the Company Patent Portfolio;

108

(b) The Borrower and its Subsidiaries (other than the IP Hold-Co) will (A) not own any Patents; (B) ensure that the IP Hold-Co maintains, and take all commercially reasonable actions to assist the IP Hold-Co in maintaining, all issued patents in the Company Patent Portfolio in full force and effect (except for patents that naturally expire or as a result of pruning activities that rely on the advice of Fortress) including paying all fees in a timely manner and taking all reasonable legal actions to protect and maintain such issued patents for which the Administrative Agent has consented; (C) ensure that the IP Hold-Co takes all commercially reasonable actions to prosecute all patent applications in the Company Patent Portfolio in an attempt to obtain all patent rights possible using the same care and skill as used by patent practitioners in the industry and according the requirements of applicable Law (including the Patent Act); (D) not permit the IP Hold-Co to engage, directly or indirectly, in any business other than the Business (as defined in the IP Hold-Co Operating Agreement) and it will conduct its Business (as defined in the IP Hold-Co Operating Agreement) as presently conducted, except upon the occurrence of and for the duration of a Liquidation Event or in connection with any Monetization (as defined in the IP Hold-Co Operating Agreement), in which case it will operated in the manner directed by the Fortress Manager (as defined in the IP Hold-Co Operating Agreement) pursuant to the terms of the IP Hold-Co Operating Agreement; (E) will not, and will ensure that the IP Hold-Co does not enter into any contract, agreement or transaction with any third party or any Affiliate except as otherwise expressly permitted in the Loan Documents or as expressly consented to by the Administrative Agent, provided that, in the event the Fortress Members (as defined in the IP Hold-Co Operating Agreement) consent to such contract, agreement or transaction, the terms and conditions of such contract, agreement or transaction (other than any contract, agreement or transaction with the Borrower Member (as defined in the IP Hold-Co Operating Agreement) that is expressly permitted under the Credit Agreement) must be on the terms described in Section 7.06 of this Agreement; or (F) will not, and will ensure that the IP Hold-Co does not violate the terms of its Organization Documents or any other Loan Document or Transaction Document;

(c) Each Loan Party has done or caused to be done and will do all things necessary to observe organizational formalities and preserve the existence of the IP Hold-Co, and the Borrower will not nor will any of its Subsidiaries: (A) amend, modify or otherwise change the IP Hold-Co’s Organization Documents without the unanimous prior written consent Administrative Agent acting at the direction of the Requisite Lenders; (B) commingle the funds and other assets of the IP Hold-Co with those of any Loan Party, Subsidiary, Affiliate or member, or any affiliate of any constituent party of the thereof, or any other Person and (C) permit the IP Hold-Co to (x) guarantee or become obligated for the debts of any other Person, other than the Obligations, or (y) pledge its assets for the debts or obligations of any other Person, other than the Obligations, except upon the occurrence of and for the duration of a Liquidation Event or in connection with any Monetization (as defined in the IP Hold-Co Operating Agreement), in which case it will operated in the manner directed by the Fortress Manager (as defined in the IP Hold-Co Operating Agreement) pursuant to the terms of the IP Hold-Co Operating Agreement; and

(d) Except upon the occurrence of and for the duration of a Liquidation Event or in connection with any Monetization (as defined in the IP Hold-Co Operating Agreement), in which case it will be operated in the manner directed by the Fortress Manager (as defined in the IP Hold-Co Operating Agreement) pursuant to the terms of the IP Hold-Co Operating Agreement, the IP Hold-Co will comply with the requirements described in Section 17 of the IP Hold-Co Operating Agreement.

109

Section 6.15 Controlled Accounts; Cash Management Systems. Borrower and its Subsidiaries shall establish and maintain cash management systems reasonably acceptable to the Agents. Borrower and the Loan Parties which are Domestic Subsidiaries shall deliver to the Agents a fully executed Control Agreement with respect to each of their Deposit Accounts or Securities Accounts other than Excluded Accounts and De Minimis Accounts, and the Loan Parties which are not Domestic Subsidiaries shall (i) take such steps as required by the Collateral Documents or which are otherwise necessary or desirable to make such accounts Controlled Accounts and provide for the equivalent perfection and priority arrangements with respect to accounts (and the funds deposited therein) under the laws of the applicable non-US jurisdiction or (ii) ensure that not more than Two Million Dollars ($2,000,000) in the aggregate in excess of the amount necessary for payroll and to operate its business as currently operated are held at any time in the deposit accounts, security accounts, custodial accounts or equivalent of the Loan Parties and their Subsidiaries in jurisdictions other than a State of the United States, England and Wales or other jurisdictions in which such accounts can be subject to a Control Agreement. Other than Excluded Accounts, De Minimis Accounts, or as expressly agreed with the Agents, the Loan Parties shall not maintain any Deposit Account or Securities Accounts not subject to a Control Agreement (or otherwise Controlled Accounts); provided that the Loan Parties may open new accounts, so long as prior to opening any such account (i) the Borrower has notified the Agents of the account and (ii) the financial institution with which such account is opened, together with such Loan Party has executed and delivered to the Agents, a fully executed Control Agreement with respect to such account (or equivalent arrangement to ensure that such account is a Controlled Account), each in form and substance satisfactory to the Agents. The Loan Parties shall ensure that their Subsidiaries which are (x) non-Loan Parties or (y) are organized or formed in jurisdictions where Control Agreements or equivalent cash control arrangements are not possible sweep cash and Cash Equivalents in their accounts into Controlled Accounts of Loan Parties on a periodic basis (prior to an Event of Default, at least once per week and after the occurrence of an Event of Default, as frequently as requested by the Agents but not more frequently than once daily); provided that prior to receipt of a written notice of an Event of Default from Agent, the Subsidiaries shall only be required to sweep into the Controlled Accounts, cash and Cash Equivalents held in such accounts in excess of the amounts necessary for required debt service and to operate its business as currently operated (in each case, based on the amounts needed for such debt service and operations as reflected in the historical financial statements and the projections delivered to the Secured Parties from time to time in accordance with the terms of this Agreement). To the fullest extent permitted by applicable law and in order to ensure that such periodic distributions described above are timely made, each of the Loan Parties shall cause each of their Subsidiaries to declare and pay dividends and/or such other payments or distributions of the types and in the manner and frequency required by Section 6.22.

Section 6.16 Lender Meetings. Loan Parties and their Subsidiaries will, upon the request of Administrative Agent or the Lenders, participate in a meeting of the Agents and the Lenders once during each fiscal quarter to be held at the Borrower’s corporate offices (or at such other location as may be agreed to by the Borrower, Agents and the Lenders) at such time as may be agreed to by Borrower and Administrative Agent.

Section 6.17 [Reserved].

Section 6.18 Assigned Patents and Assigned Patent Rights.

(a) Borrower shall not, and shall not permit any Loan Party to, waive or modify, and Borrower shall, and shall cause each Loan Party to, use its best efforts not to suffer the waiver or modification of, any legal rights of a material nature arising out of or relating to the Assigned Patent Rights without the express prior written consent of the Collateral Agent (acting at the direction of the Requisite Lenders). Borrower shall, and shall cause each Loan Party to, use its best efforts in obtaining patent protection for applications for Intellectual Property including but not limited to applications for patents, including submitting claim amendments that may change the material scope of coverage of the claims. For the avoidance of doubt, patent prosecution of such pending patent applications will proceed without involvement of the Collateral Agent (except during the pendency of an Event of Default).

(b) The Loan Parties will be liable to the Secured Parties for (and Borrower shall, and shall cause each Loan Party to, pay the Secured Parties within fifteen (15) days of delivery by the Agent of any demand or invoice for any expenditures by a Secured Party) in connection with (i) the maintenance and preservation of the Collateral, including, but not limited to, taxes, recording fees, appraisal fees, certificate of title charges, recording and filing fees (including UCC financing statement fees and other equivalent filing fees and expenses in other jurisdictions, taxes (including documentary stamps) and search fees), fees arising out of or relating to the Assigned Patent Rights, the fees and disbursements for the Secured Parties’ counsel, levies, insurance and repairs; and (ii) in addition to damages for breach of warranty, misrepresentation, or breach of covenant by any Loan Party, the enforcement of this Agreement and the Loan Documents and other Transaction Documents as a result of such breach or misrepresentation, including, but not limited to, the repossession, holding, preparation for sale, and the sale of the Collateral (including attorneys’ and accountants’ fees and expenses), and all such liabilities shall be included in the definition of Obligations, shall be secured by the security interest granted herein, and shall be payable upon demand.

110

(c) Borrower shall, and shall cause each Loan Party to, use its best efforts to ensure that no standards-setting organization shall impose an obligation to license any of the Assigned Patents on particular terms or conditions. No Loan Party shall agree to be subject to any covenant not to xxx or other restrictions on its enforcement or enjoyment of the Assigned Patent Rights without the consent of Fortress.

(d) No Loan Party knows of or has received any notice or information of any kind suggesting that the Assigned Patents may be invalid, unpatentable, or unenforceable other than (i) official notices from patent offices in the course of patent prosecution and (ii) allegations from third parties in litigation involving, or invited to take a license under, certain Assigned Patents.

(e) All applications to Patent any Intellectual Property that is owned by any Loan Party (or any of their Subsidiaries) shall be filed in the name of the IP Hold-Co, and (i) Borrower shall, or shall cause each of its Subsidiaries to, file all documents and take such other actions as shall be necessary, desirable or reasonably requested by the Collateral Agent to assign all right, title and interest in and to such patent application, to Borrower or any of its Subsidiaries, including the execution of, and recording with the relevant filing office of, a Patent Assignment Agreement with respect to such patent application, and (ii) each Patent application shall automatically be deemed an Assigned Patent hereunder, and Borrower and each of its Subsidiaries, as applicable, assign to IP Hold-Co all right, title, and interest in and to such Patent applications.

(f) All Patents acquired by Borrower or any of its Subsidiaries from any other Person, or which any right, title or interest arises in Borrower (or any of its Subsidiaries), shall be assigned to and held in the name of IP Hold-Co and (i) Borrower shall, or shall cause any of its Subsidiaries to, file all documents and take such other actions as shall be necessary or reasonably requested by the Secured Parties to cause all right, title and interest in and to such Patents, and all related Trade Secrets, to vest in IP Hold-Co including the execution of, and recording with the relevant filing office of, a Patent Assignment Agreement with respect to such Patents, and (ii) such Patents shall automatically be deemed Assigned Patents hereunder and shall be owned by IP Hold-Co together with all Assigned Patent Rights associated therewith, and Borrower and each of its Subsidiaries, as applicable, hereby assign to IP Hold-Co all right, title, and interest in and to such Patents.

(g) Borrower shall, and shall cause each Loan Party to, with respect to all Assigned Patents, obtain, maintain and preserve, comply with in all material respects (except where the failure to so comply could not reasonably be expected to result in the loss thereof), and take all necessary action to timely renew, all Regulatory Permits.

(h) Borrower shall, and shall cause each Loan Party to, (and will cause each of their Subsidiaries to) (i) maintain or cause to be maintained each Regulatory Permit, from, or file any notice or registration in, each jurisdiction in which any Loan Party or licensee is required to obtain any Regulatory Permit or file any notice or registration, in each case, that is necessary and material for the maintenance of the Assigned Patents, and (ii) upon request, promptly provide evidence of same to Administrative Agent.

Section 6.19 Consent of Licensors. The Borrower shall, at the end of each fiscal quarter after the Borrower or any Subsidiary entering into or becoming bound by any Material Contract or any inbound license or agreement (other than (i) over-the-counter software that is commercially available to the public and (ii) any license of or agreement relating to Intellectual Property that is not Material Intellectual Property) after the Closing Date: (a) provide written notice or a brief summary to the Agents and Lenders with a description of the material terms of such Material Contract, license or agreement if the actions described in clause (b) below would need to be taken with respect to such Material Contract, license or agreement if requested by the Agent; and (b) take such commercially reasonable actions as the Agent may reasonably request to obtain the consent of, or waiver by, any Person whose consent or waiver is necessary for the Collateral Agent to be granted and perfect a valid security interest in such Material Contract, license or agreement and to fully exercise its rights under any of the Loan Documents in the event of a disposition or liquidation of the rights, assets or property that is the subject of such Material Contract, license or agreement.

111

Section 6.20 Maintenance of Regulatory Permits, Contracts, Intellectual Property, Etc. The Borrower shall, and shall cause each Subsidiary to, with respect to the Assigned Patents, (i) maintain in full force and effect all Material Intellectual Property, and except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, all other contract rights, authorizations or other rights necessary or material for the operations of its business, and comply with the terms and conditions applicable to the foregoing; (ii) maintain in full force and effect or pursue the prosecution of, as the case may be, and pay all costs and expenses relating to, all Material Intellectual Property owned or controlled by such Loan Party or its respective Subsidiaries, excluding the maintenance of Intellectual Property that in the commercially reasonable business judgment of the Borrower is not necessary or material for the conduct of the business of any Loan Party or its Subsidiaries; (iii) notify the Agents, promptly after any Responsible Officer of any Loan Party has knowledge thereof, of any infringement or other violation by any Person of its Material Intellectual Property; and (iv) use commercially reasonable efforts to pursue, enforce, and maintain in full force and effect legal protection (except as Borrower may otherwise determine in its reasonable business judgment) for all Material Intellectual Property developed or controlled by such Loan Party or any of its respective Subsidiaries.

Section 6.21 Pari Passu Ranking. The Loan Parties shall take, and ensure that each of their Subsidiaries take, all actions to ensure that their obligations under the Loan Documents rank at all times at least pari passu in right of priority and payment with the claims of all their other secured and unsubordinated creditors, except for obligations mandatorily preferred by law applying to companies generally.

Section 6.22 Subsidiary Distributions; Upstreaming Cashflows; Investment Documents.

(a) Each of the Loan Parties shall cause each of its Subsidiaries and Investments to declare, pay and upstream all dividends or other payments or other distributions of all cash and Cash Equivalents (each a, “Distribution”) of such Persons to the Loan Parties on account of such Loan Party’s ownership interests in the Equity Interests of such Persons to the maximum extent and with the maximum frequency permitted by applicable Law. Each of the Loan Parties shall ensure that (i) excess cashflows from each Subsidiary of the Loan Parties are upstreamed to the Borrower in an amount at least equal to the lesser of (A) ninety percent (90%) of Free Cash Flow of such Subsidiary with respect to the period as to which Distributable Income for such Subsidiary was measured for purposes of clause (B) hereof, and (B) the maximum amount of Distributable Income with respect to such Subsidiary as of the date of such Distribution permitted to be distributed under the applicable Laws of the Relevant Jurisdiction, as determined with respect to the preceding fiscal year of such Subsidiary or, in the case of Distributions made more frequently than annually, such lesser period of time as may have elapsed since the most recent determination of Distributable Income with respect to such Subsidiary hereunder (or since the Closing Date, in the case of the initial Distribution hereunder by such Subsidiary); and, (ii) to the extent restrictions are imposed by any Governmental Authority on Distributions in Dollars by any Subsidiary, cause and permit such Subsidiary to maximize Dollars available for distribution hereunder to the maximum extent permitted by applicable Law, including through the purchase and sale of Dollar-denominated Cash Equivalent debt instruments issued by the sovereign of such jurisdiction, through any other appropriate mechanism for the acquisition of Dollars in any exchange market, or through the preferential allocation towards any such distribution of Dollar-denominated and/or off-shore revenues received by such Subsidiary. Notwithstanding the foregoing, the Borrower shall not be required to, and shall not be required to cause its Subsidiaries to, make distributions from any Subsidiary to the extent that in the reasonable business discretion of the Borrower, including in respect of restrictions imposed by any Governmental Authority it would be illegal or have a material adverse tax consequence to the Borrower, or otherwise have a material and detrimental impact on the value of such distributions.

112

(b) Each Loan Party will and will ensure that each of their Subsidiaries and Investments will diligently enforce all of their rights and remedies in a timely manner under the relevant Organization Documents, shareholders agreements and/or investment agreements with respect to such Subsidiaries and Investments. No Loan Party will (nor shall they permit any Subsidiary to) amend, waive, supplement or terminate any rights under any of the Organization Documents, shareholders agreements or other investment documents with respect to any of their Subsidiaries or Investments in a manner that would adversely affect the Loan Parties or the rights and remedies of the Secured Parties in any material respect. The Borrower shall not nor shall it permit any of its Subsidiaries to enter into any agreement that limits the ability of any Subsidiary to make a dividend or distribution payment to the Loan Parties or to otherwise transfer any property to the Loan Parties, provided, however, that this sentence shall not prohibit any negative pledge incurred or provided in favor of any holder of Indebtedness existing on the Closing Date permitted under Section 7.09 solely to the extent any such negative pledge relates to the property financed by or the subject of such Indebtedness.

Section 6.23 Critical Technologies. To the extent that any of the Borrower’s products or services become categorized as a Critical Technology other than any items eligible for license exception ENC of the Export Administration Regulations (15 CFR Part 740.17), the Borrower shall promptly notify the Administrative Agent of such categorization.

Section 6.24 Further Assurances. Subject to the applicable limitations set forth in the Loan Documents (including those set forth in the definition of Collateral and Guarantee Requirement and in the Collateral Documents), take all such actions and execute, acknowledge and deliver, and cause each of its Subsidiaries to take such all actions and execute, acknowledge and deliv

Document Metadata

Table of Contents

REAFFIRMATION AGREEMENT AND OMNIBUS AMENDMENT AGREEMENT