“Total Term Loan B Commitment” means the sum of the amounts of the Lenders’ Term Loan B Commitments.

 

“Total Term Loan C Commitment” means the sum of the amounts of the Lenders’ Term Loan C Commitments.

 

“Treasury Rate” means, with respect to any prepayment, a rate per annum (computed on the basis of actual days elapsed over a year of 360 days) equal to the rate determined by the Administrative Agent on the date 3 Business Days prior to the date of such prepayment, to be the yield expressed as a rate listed in The Wall Street Journal for United States Treasury securities most nearly equal to the period from the date of such prepayment, repayment or date of required repayment to and including the first anniversary of the Effective Date.

 

“Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to Term SOFR or the Reference Rate.

 

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

 

“Uniform Commercial Code” or “UCC” has the meaning specified therefor in Section 1.04.

 

“USA PATRIOT Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (PATRIOT) Act of 2001, Title III of Pub. L. 107-56 (signed into law on Oct. 26, 2001), as renewed, extended, amended, or replaced from time to time.

 

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

 

“U.S. Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Internal Revenue Code.

 

“Varde” means Varde Management, L.P. and its Affiliates and Related Funds.

 

“VCOC Management Rights Agreement” has the meaning specified therefor in Section 5.01(d).

 

“Waivable Mandatory Prepayment” shall have the meaning assigned to such term in Section 2.05(g).

 

“WARN” has the meaning specified therefor in Section 6.01(p).

 

“Warrants” means those certain warrants to purchase common stock described in the Fee Letter.

 

“Withholding Agent” means any Loan Party and the Administrative Agent.

 

“Working Capital” means, at any date of determination thereof, (a) the sum, for any Person and its Subsidiaries, of (i) all current assets of such Person and its Subsidiaries in conformity with GAAP as at such date of determination (other than cash, Cash Equivalents, any Indebtedness owing to such Person or any of its Subsidiaries by Affiliates of such Person and the current portion of deferred tax assets), minus (b) the sum, for such Person and its Subsidiaries, of (i) all current liabilities of such Person and its Subsidiaries in conformity with GAAP as at such date of determination (other than the current portion of long-term debt and the current portion of all accrued interest and taxes).

 

“Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.

 

Section 1.02.  Terms Generally.  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 herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, restated, amended and restated, supplemented or otherwise modified (subject to any restrictions on such amendments, restatements, amendments and restatements, (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement and (e) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any right or interest in or to assets and properties of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible.

 

Section 1.03.  Certain Matters of Construction.

 

(a)         References in this Agreement to “determination” by any Agent include good faith estimates by such Agent (in the case of quantitative determinations) and good faith beliefs by such Agent (in the case of qualitative determinations).  A Default or Event of Default shall be deemed to exist at all times during the period commencing on the date that such Default or Event of Default occurs to the date on which such Default or Event of Default is waived in writing pursuant to this Agreement or, in the case of a Default, is cured within any period of cure expressly provided for in this Agreement; and an Event of Default shall “continue” or be “continuing” until such Event of Default has been waived in writing by the Required Lenders.  Any Lien referred to in this Agreement or any other Loan Document as having been created in favor of any Agent, any agreement entered into by any Agent pursuant to this Agreement or any other Loan Document, any payment made by or to or funds received by any Agent pursuant to or as contemplated by this Agreement or any other Loan Document, or any act taken or omitted to be taken by any Agent, shall, unless otherwise expressly provided, be created, entered into, made or received, or taken or omitted, for the benefit or account of the Agents and the Lenders. Wherever the phrase “to the knowledge of any Loan Party” or words of similar import relating to the knowledge or the awareness of any Loan Party are used in this Agreement or any other Loan Document, such phrase shall mean and refer to (i) the actual knowledge of a senior officer of any Loan Party or (ii) the knowledge that a senior officer would have obtained if such officer had engaged in good faith and diligent performance of such officer’s duties, including the making of such reasonably specific inquiries as may be necessary of the employees or agents of such Loan Party and a good faith attempt to ascertain the existence or accuracy of the matter to which such phrase relates.  All covenants hereunder shall be given independent effect so that if a particular action or condition is not permitted by any of such covenants, the fact that it would be permitted by an exception to, or otherwise within the limitations of, another covenant shall not avoid the occurrence of a default if such action is taken or condition exists.  In addition, all representations and warranties hereunder shall be given independent effect so that if a particular representation or warranty proves to be incorrect or is breached, the fact that another representation or warranty concerning the same or similar subject matter is correct or is not breached will not affect the incorrectness of a breach of a representation or warranty hereunder.

 

(b)         Any reference herein to a merger, consolidation, amalgamation, liquidation, winding up, dissolution, assignment, sale, lease, Investment, disposition, Restricted Payment, conveyance or transfer, or similar term, shall be deemed to apply to a division (whether pursuant to a divisive merger, plan of division, or other comparable event under any jurisdiction’s law) of or by a Person, or an allocation of assets to any Person or series of Persons, as if it were a merger, consolidation, amalgamation, liquidation, winding up, dissolution, assignment, sale, lease, Investment, disposition, Restricted Payment, conveyance or transfer, or similar term, as applicable, to, of or with a separate Person. Any division (whether pursuant to a divisive merger, plan of division, or other comparable event under any jurisdiction’s law) of a Person shall constitute a separate Person hereunder (and each division of any, and such separate Person shall be deemed to have been organized on the first date of its existence by the holders of its Stock at such time.

 

Section 1.04.  Accounting and Other Terms.

 

(a)        Unless otherwise expressly provided herein, each accounting term used herein shall have the meaning given it under GAAP.  For purposes of determining compliance with any incurrence or expenditure tests set forth in Section 7.01, Section 7.02 and Section 7.03, any amounts so incurred or expended (to the extent incurred or expended in a currency other than Dollars) shall be converted into Dollars on the basis of the exchange rates (as shown on the Bloomberg currency page for such currency or, if the same does not provide such exchange rate, by reference to such other publicly available service for displaying exchange rates as may be reasonably selected by the Agents or, in the event no such service is selected, on such other basis as is reasonably satisfactory to the Agents) as in effect on the date of such incurrence or expenditure under any provision of any such Section that has an aggregate Dollar limitation provided for therein (and to the extent the respective incurrence or expenditure test regulates the aggregate amount outstanding at any time and it is expressed in terms of Dollars, all outstanding amounts originally incurred or spent in currencies other than Dollars shall be converted into Dollars on the basis of the exchange rates (as shown on the Bloomberg currency page for such currency or, if the same does not provide such exchange rate, by reference to such other publicly available service for displaying exchange rates as may be reasonably selected by the Agents or, in the event no such service is selected, on such other basis as is reasonably satisfactory to the Agents) as in effect on the date of any new incurrence or expenditures made under any provision of any such Section that regulates the Dollar amount outstanding at any time).  Notwithstanding the foregoing, (i) with respect to the accounting for leases as either operating leases or capital leases and the impact of such accounting in accordance with FASB ASC 842 on the definitions and covenants herein, GAAP as in effect on December 31, 2015 shall be applied and (ii) for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, Indebtedness of the Parent and its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be disregarded.

 

(b)         All terms used in this Agreement which are defined in Article 8 or Article 9 of the Uniform Commercial Code as in effect from time to time in the State of New York (the “Uniform Commercial Code” or the “UCC”) and which are not otherwise defined herein shall have the same meanings herein as set forth therein, provided that terms used herein which are defined in the Uniform Commercial Code as in effect in the State of New York on the date hereof shall continue to have the same meaning notwithstanding any replacement or amendment of such statute except as any Agent may otherwise determine.

 

Section 1.05.  Time References.  Unless otherwise indicated herein, all references to time of day refer to Eastern Standard Time or Eastern daylight saving time, as in effect in New York City on such day.  For purposes of the computation of a period of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until” each means “to but excluding”; provided, however, that with respect to a computation of fees or interest payable to any Secured Party, such period shall in any event consist of at least one full day.  Whenever any action or delivery to be taken or made under this Agreement or any other Loan Document shall be stated to be due on a day other than a Business Day, such action or delivery shall be deemed to be due on the next succeeding Business Day.

 

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

 

Section 1.07.  Obligation to Make Payments in Dollars.  All payments to be made by any Loan Party of principal, interest, fees and other Obligations under any Loan Document shall be made in Dollars in same day funds, and no obligation of any Loan Party to make any such payment shall be discharged or satisfied by any payment other than payments made in Dollars in same day funds.

 

Section 1.08.  Certain Calculations and Tests.

 

(a)          [Reserved].

 

(b)         For purposes of calculating the Leverage Ratio or the amount of Consolidated EBITDA, acquisitions, dispositions, mergers, consolidations, and disposed operations (as determined in accordance with GAAP) that have been made by the Parent or any Subsidiary during the Test Period or subsequent to such Test Period and on or prior to or simultaneously with the date of determination shall be calculated on a Pro Forma Basis assuming that all such Investments, acquisitions, dispositions, mergers, consolidations, and disposed operations (and the change in any associated fixed charge obligations and the change in Consolidated EBITDA resulting therefrom) had occurred on the first day of the Test Period. If, during such period, any Person (that subsequently became a Subsidiary or was merged with or into the Parent or other Subsidiary since the beginning of such period) shall have made any Investment, acquisition, disposition, merger, consolidation, or disposed operation that would have required adjustment pursuant to this Section or the definition of “Pro Forma Basis”, then the Leverage Ratio and the amount of Consolidated EBITDA shall be calculated giving Pro Forma Effect thereto for such Test Period as if such Investment, acquisition, disposition, merger, consolidation, or disposed operation had occurred at the beginning of the Test Period. Notwithstanding anything to the contrary set forth in this Section 1.8 or in the definition of Pro Forma Basis, when calculating the Leverage Ratio for purposes of (i) Section 2.05(c)(i), (ii) actual (but not pro forma) compliance with Section 7.03 and (iii) the Applicable Margin, the events described in this Section 1.8 and within the definition of Pro Forma Basis that occurred subsequent to the end of the applicable Test Period shall not be given pro forma effect.

 

Section 1.09.  Divisions.  Any reference herein to a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition or transfer, or similar term, shall be deemed to apply to a division of or by a limited liability company, or an allocation of assets to a series of a limited liability company (or the unwinding of such a division or allocation), as if it were a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition or transfer, or similar term, as applicable, to, of or with a separate Person. Any division of a limited liability company shall constitute a separate Person hereunder (and each division of any limited liability company that is a Subsidiary, joint venture or any other like term shall also constitute such a Person or entity).

 

Section 1.10.  Certain Israeli Terms.  In relation to any person incorporated in Israel, an Insolvency Proceeding, Debtor Relief Law and any reference to 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 State of Israel including seeking an order relating to: (i) liquidation, winding-up, dissolution, administration or an arrangement (“Hesder”) with creditors, as such terms are determined under the Israeli Companies Law and the Israeli Insolvency Law; (ii) the appointment of a receiver or trustee (“baal tafkid”), as such term is understood under the Israeli Insolvency Law; (iii) a reorganization order, freeze order, stay of proceedings order (“Ikuv Halichim”) (or other similar remedy), relief of debtors, an order for commencing proceedings (“Tzav le-Ptichat Halichim”); 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.

 

Section 1.11.  Certain German Terms.  In relation to any person incorporated or established in Germany, any reference to GAAP shall be a reference to generally accepted accounting principles in the relevant entity’s jurisdiction of incorporation to be able to provide (non-consolidated) financial statements under its reporting duties applicable in Germany.

 

Section 1.12.  Certain Dutch Terms.  In relation to a Dutch Loan Party, a reference to (a) a “composition” includes an akkoord within the meaning the Dutch Bankruptcy Act (Faillissementswet), (b) a “dissolution” includes the Dutch Loan Party being declared bankrupt (failliet verklaard) or dissolved (ontbonden), (c) a “liquidator”, “receiver” or “other representative” includes a curator, a beoogd curator, a bewindvoerder, a beoogd bewindvoerder, a herstructureringsdeskundige or an observator, (d) a “moratorium” includes (voorlopig) surseance van betaling, (e) a “reorganization” in the context of insolvency or insolvency proceedings includes statutory proceedings for the restructuring of debt (akkoordprocedure) under the Dutch Bankruptcy Act (Faillissementswet) and (f) a “works council” means each works council (ondernemingsraad) or central or group works council (centrale of groeps ondernemingsraad) within the meaning of the Works Councils Act of the Netherlands (Wet op de ondernemingsraden) having jurisdiction over that Dutch Loan Party.

ARTICLE II

 THE LOANS

provided, however, that in the case of clauses (i), (ii) and (iii), if any such date is not a Business Day then the installment due on such date shall instead be paid on the immediately preceding Business Day.  The outstanding unpaid principal amount of the Term Loan, and all accrued and unpaid interest thereon, shall be due and payable in full in cash on the earliest of (i) the Final Maturity Date and (ii) the date on which the Term Loan is declared due and payable pursuant to the terms of this Agreement.

(c)         The provisions of this Section 4.05 are made for the benefit of the Agents, the Lenders and their successors and assigns, and may be enforced by them from time to time against any or all of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Agents, the Lenders or such successors or assigns first to marshal any of its or their claims or to exercise any of its or their rights against any of the other Borrowers or to exhaust any remedies available to it or them against any of the other Borrowers or to resort to any other source or means of obtaining payment of any of the Obligations hereunder or to elect any other remedy.  The provisions of this Section 4.05 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied.

 

(d)         Each of the Borrowers hereby agrees that it will not enforce any of its rights of contribution or subrogation against the other Borrowers with respect to any liability incurred by it hereunder or under any of the other Loan Documents, any payments made by it to the Agents or the Lenders with respect to any of the Obligations or any Collateral, until such time as all of the Obligations have been paid in full in cash.  Any claim which any Borrower may have against any other Borrower with respect to any payments to the Agents or the Lenders hereunder or under any other Loan Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior payment in full in cash of the Obligations.

 

 

(a)          In this section 4.06:

 

"Equitably Subordinated Lender" means any Lender whose rights and claims under the Loan Documents against a German Loan Party would, prior to or in an insolvency of such German Loan Party, be subordinated or could be subject to potential avoidance claims pursuant to section 39 para. 1 no. 5, section 39 para. 2 or section 135 of the German Insolvency Code (Insolvenzordnung) or section 6 of the German Avoidance Act (Anfechtungsgesetz).

 

"Equitably Subordinated Liabilities" means any liabilities owed to an Equitably Subordinated Lender.

 

"Recoveries" means all amounts from time to time received or recovered by the Collateral Agent pursuant to the terms of any Loan Document or in connection with the realisation or enforcement of all or any part of the Collateral.

 

(b)        To the extent that the Recoveries held by the Collateral Agent are insufficient to discharge the liabilities owed to all the Secured Parties in any priority class and this is due to any Equitably Subordinated Lender being part of that class of creditors, the amount to be applied by the Collateral Agent in discharge of the liabilities of that class of creditors shall be distributed to the other creditors of that class and the Equitably Subordinated Lender shall not be entitled to receive any part of that amount.

 

(c)         An Equitably Subordinated Lender shall neither have the benefit nor the obligations, of any sharing provisions under the Loan Documents and shall not be entitled to receive any payment, and the Collateral Agent shall not be required to make any payment out of Recoveries to the Equitably Subordinated Lender, under or in connection with the Loan Documents in respect of any Equitably Subordinated Liabilities.

 

(d)        To the extent that any Equitably Subordinated Liabilities would result in the subordination of liabilities towards any (other) Lenders under any Loan Document pursuant to section 39 para. 1 no. 5 of the German Insolvency Code (Insolvenzordnung) or prejudice the validity or enforceability of any Collateral or Guaranty provided to any Lender pursuant to the Loan Documents in any way the relevant Equitably Subordinated Lender shall be deemed not to be a Secured Party under any Security Agreement and shall not benefit from the Guaranty.

 

(e)        No Equitably Subordinated Lender shall have any rights or claims in relation to any Recoveries received from an insolvent German Loan Party or the enforcement of Collateral provided by such insolvent German Loan Party and shall turn over all such Recoveries to such Secured Parties as the Collateral Agent shall require.

 

ARTICLE V

 

CONDITIONS TO LOANS

 

Section 5.01.  Conditions Precedent to Effectiveness.  This Agreement shall become effective as of the Business Day (the “Effective Date”) when each of the following conditions precedent shall have been satisfied (or waived) in a manner reasonably satisfactory to the Agents:

 

(a)         Payment of Fees, Etc.  The Borrowers shall have paid on or before the Effective Date all fees, costs and expenses (including the fees and expenses of legal counsel) then payable pursuant to Section 2.06 and Section 12.04 which amounts may be offset against the proceeds of the Loans.

 

(b)         Representations and Warranties; No Event of Default.  The following statements shall be true and correct:  (i) the representations and warranties contained in Article VI and in each other Loan Document, certificate or other writing delivered to any Secured Party pursuant hereto or thereto on or prior to the Effective Date are true and correct in all material respects on and as of the Effective Date as though made on and as of such date, except to the extent that any such representation or warranty expressly relates solely to an earlier date (in which case such representation or warranty shall be true and correct in all material respects on and as of such earlier date) and (ii) no Default or Event of Default shall have occurred and be continuing on the Effective Date or would result from this Agreement or the other Loan Documents becoming effective in accordance with its or their respective terms.

 

(c)          Legality.  The making of the initial Loans shall not contravene any law, rule or regulation applicable to any Secured Party.

 

(d)         Delivery of Documents.  The Collateral Agent shall have received on or before the Effective Date the following, each in form and substance reasonably satisfactory to the Collateral Agent and, unless indicated otherwise, dated the Effective Date and, if applicable, duly executed by the Persons party thereto:

 

(i)          the Security Agreement;

 

(ii)         [reserved];

 

(iii)        the results of searches for any effective UCC financing statements, tax Liens or judgment Liens filed against any Loan Party or its property, which results shall not show any such Liens (other than Permitted Liens);

 

(iv)        a Perfection Certificate;

 

(v)         the Intellectual Property Security Agreements;

 

(vi)        No later than 3 days in advance of the Effective Date, the Administrative Agent shall have received all documentation and other information requested by any Lender that is party hereto on the Effective Date in writing with respect to any Loan Party, which documentation or other information is required by regulatory authorities under applicable “know your customer” provisions of Anti-Money Laundering Laws, including the USA PATRIOT Act and Beneficial Ownership Regulation (including, if the Borrowers qualify as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification); provided that, in the case of a Beneficial Ownership Certification, upon the request of the Administrative Agent, the Borrowers shall return such completed Beneficial Ownership Certification directly to the requesting Lender;

 

(vii)       [reserved];

 

(viii)      the Disbursement Letter;

 

(ix)        the Fee Letter;

 

(x)         the Intercompany Subordination Agreement;

 

(xi)        [reserved];

 

(xii)       [reserved];

 

(xiii)      each of the Warrants requested by a Lender to be issued on the Effective Date;

 

(xiv)      [reserved];

 

(xv)      the management rights letter, dated as of the date hereof, among the Loan Parties and the Agents, as amended, amended and restated, supplemented or otherwise modified from time to time (the “VCOC Management Rights Agreement”);

 

(xvi)      a certificate of an Authorized Officer of each Loan Party, certifying (A) as to copies of the Governing 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 as of a recent date not more than 30 days prior to the Effective 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) as to a copy of the resolutions or written consents of such Loan Party authorizing (1) the borrowings hereunder and the transactions contemplated by the Loan Documents to which such Loan Party is or will be a party, and (2) the execution, delivery and performance by such Loan Party of each Loan Document 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 Parent, the Warrants, (C) the names and true signatures of the representatives of such Loan Party authorized to sign each Loan Document (in the case of a Borrower, including, without limitation, Notices of Borrowing, SOFR Notices and all other notices under this Agreement and the other Loan 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 and (D) as to the matters set forth in Section 5.01(b);

 

(xvii)     a certificate of the chief financial officer of the Parent (A) setting forth in reasonable detail the calculations and other supporting evidence (including financial support demonstrating the sources and uses of amounts included in such calculation and the proceeds of the Loans and other amounts received or distributed on or around the Effective Date in connection with the transactions contemplated hereunder in form and substance reasonably satisfactory to the Administrative Agent) required to establish compliance, on a pro forma basis after giving effect to the Loans, with each of the financial covenants contained in Section 7.03 (as if the covenants applicable to the month ending August 31, 2025 applied on the Effective Date), (B) certifying that all tax returns required to be filed by the Loan Parties have been filed and all material taxes upon the Loan Parties or their properties, assets, and income (including real property taxes and payroll taxes) have been paid except (i) unpaid Taxes in an aggregate amount at any one time not in excess of $1,000,000 and (ii) Taxes disclosed on Schedule 7.02(a) and contested in good faith by proper proceedings which stay the imposition of any Lien resulting from the non-payment thereof and with respect to which adequate reserves have been set aside for the payment thereof in accordance with GAAP, (C) attaching a copy of the Financial Statements and the Projections described in Section 6.01(g)(ii) hereof and certifying as to the compliance with the representations and warranties set forth in Section 6.01(g)(i) and Section 6.01(jj)(ii) and (D) certifying that after giving effect to all Loans to be made on the Effective Date, (1) Liquidity is not less than $20,000,000 and (2) all liabilities of the Loan Parties are current (other than trade payables, accrued expenses or other accounts payable incurred in the ordinary course of such Person’s business and not outstanding for more than 90 days after the date such payable was created and any liabilities (x) included in the Schedules to this Agreement, or (y) otherwise disclosed to the Administrative Agent prior to the Effective Date in an aggregate amount for all such liabilities so disclosed under this clause (y) not to exceed $10,000,000);

 

(xviii)     a certificate of the chief financial officer of each Loan Party, certifying as to the solvency of such Loan Party (after giving effect to the Loans made on the Effective Date);

 

(xix)      a certificate of an Authorized Officer of the Administrative Borrower certifying that (A) the attached copies of the Material Contracts as in effect on the Effective Date are true, complete and correct copies thereof and (B) such agreements remain in full force and effect and that none of the Loan Parties has breached or defaulted in any of its obligations under such agreements;

 

(xx)       a certificate of the 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, each jurisdiction of foreign qualification of each Loan Party certifying as of a recent date not more than 30 days prior to the Effective Date as to the subsistence in good standing of, and, if applicable, the payment of taxes by, such Loan Party in such jurisdictions (allowing an exception for (i) unpaid Taxes in an aggregate amount at any one time not in excess of $1,000,000 and (ii) Taxes disclosed on Schedule 7.02(a) and contested in good faith by proper proceedings which stay the imposition of any Lien resulting from the non-payment thereof and with respect to which adequate reserves have been set aside for the payment thereof in accordance with GAAP)), together with written confirmation (where available) on the Effective Date from such official(s) as to such matters;

 

(xxi)       an opinion of Latham & Watkins LLP, special New York counsel to the Loan Parties, as to such customary debt financing matters as the Collateral Agent may reasonably request;

 

(xxii)     evidence of the insurance coverage required by Section 7.01(h);

 

(xxiii)    [reserved];

 

(xxiv)    [reserved]; and

 

(xxv)     evidence of the payment in full of all Indebtedness under the Existing Credit Facility, together with (A) a termination and release agreement with respect to the Existing Credit Facility and all related documents, duly executed by the Loan Parties and the Existing Lenders, (B) if applicable, a satisfaction of mortgage for each mortgage filed by the Existing Lender on each Facility, if any, (C) a termination of security interest in Intellectual Property for each security agreement or similar instrument recorded by the Existing Lenders at the United States Patent and Trademark Office or the United States Copyright Office and covering any intellectual property of the Loan Parties, and (D) UCC 3 termination statements for all UCC-1 financing statements filed by the Existing Lenders and covering any portion of the Collateral; provided, however, that this clause shall be subject to Section 5.03(i).

 

(e)         Material Adverse Effect.  The Collateral Agent shall have determined, in its sole judgment, that no event or development shall have occurred since March 31, 2025 which could reasonably be expected to have a Material Adverse Effect.

 

(f)           [Reserved].

 

(g)        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, or the conduct of the Loan Parties’ business, or the consummation of any of the underlying transactions, shall have been obtained and shall be in full force and effect.

 

(h)         Proceedings; Receipt of Documents.  All proceedings in connection with the making of the initial Loans and the other transactions contemplated by this Agreement and the other Loan Documents, and all documents incidental hereto and thereto, shall be reasonably satisfactory to the Collateral Agent and its counsel, and the Collateral Agent and such counsel shall have received all such information and such counterpart originals or certified or other copies of such documents as the Collateral Agent or such counsel may reasonably request.

 

(i)          Management Reference Checks.  The Collateral Agent shall have received satisfactory reference checks for, and shall have had an opportunity to meet in person with, key management of the Parent.

 

(j)          Due Diligence.  The Agents shall have completed their business, financial, industry, legal and collateral due diligence with respect to each Loan Party and the results thereof shall be acceptable to the Agents, in their sole and absolute discretion.

 

(k)         Security Interests.  When filed with the appropriate Governmental Authority where applicable (including, where applicable, the United States Copyright Office or the United States Patent and Trademark Office), the Loan Documents shall create in favor of the Collateral Agent, for the benefit of the Secured Parties, a legal, valid and enforceable first priority security interest in the Collateral secured thereby (subject only to Permitted Liens).

 

(l)          Litigation.  There shall exist no claim, action, suit, investigation, litigation or proceeding (including, without limitation, shareholder or derivative litigation) pending or threatened in any court or before any arbitrator or Governmental Authority which relates to the Loans or which, in the opinion of the Collateral Agent, is reasonably likely to be adversely determined, and that, if adversely determined, would reasonably be expected to have a Material Adverse Effect.

 

(m)         Notice of Borrowing.  The Administrative Agent shall have received a Notice of Borrowing pursuant to Section 2.02 hereof.

 

(n)         Tax Forms. The Administrative Agent shall have received, at least two (2) Business Days prior to the Effective Date, a duly executed IRS Form W-9 (or other applicable Tax form) of Parent and the Borrowers.

 

Section 5.02.  [Reserved].

 

Section 5.03.  Conditions Subsequent to Effectiveness.  As an accommodation to the Loan Parties, the Agents and the Lenders have agreed to execute this Agreement and to make the Loans on the Effective Date notwithstanding the failure by the Loan Parties to satisfy the conditions set forth below on or before the Effective Date.  In consideration of such accommodation, the Loan Parties agree that, in addition to all other terms, conditions and provisions set forth in this Agreement and the other Loan Documents, including, without limitation, those conditions set forth in Section 5.01, the Loan Parties shall satisfy each of the conditions subsequent set forth below on or before the date applicable thereto (it being understood that (i) the failure by the Loan Parties to perform or cause to be performed any such condition subsequent on or before the date applicable thereto shall constitute an Event of Default and (ii) to the extent that the existence of any such condition subsequent would otherwise cause any representation, warranty or covenant in this Agreement or any other Loan Document to be breached, the Required Lenders hereby waive such breach for the period from the Effective Date until the date on which such condition subsequent is required to be fulfilled pursuant to this Section 5.03):

 

(a)         Subject to clause (viii) below, the Collateral Agent shall have received on or before the date that is 30 days following the Effective Date (or such later date as the Collateral Agent shall agree to in its reasonable discretion) the following, each in form and substance satisfactory to the Collateral Agent and, if applicable, duly executed by the Persons party thereto:

 

(i)          [reserved];

 

(ii)        insurance endorsements as to the named insureds or loss payees under the insurance policies referenced in Section 5.01(d)(xxii) as the Collateral Agent may reasonably request and providing that such policies may be terminated or canceled (by the insurer or the insured thereunder) only upon 30 days’ (or 10 days’ in the case of nonpayment) prior written notice to the Collateral Agent and each such named insured or loss payee;

 

(iii)        [reserved];

 

(iv)        [reserved];

 

(v)          all Control Agreements that, in the reasonable judgment of the Agents, are required for the Loan Parties to comply with the Loan Documents as of the Effective Date;

 

(vi)        the Assignment of Business Interruption Insurance Policy;

 

(vii)       evidence that the Loan Parties shall have established segregated payroll accounts that will be used exclusively to hold payroll funds; and

 

(viii)      evidence that those non-Loan Parties that were not party to the Intercompany Subordination Agreement on the Effective Date shall have become parties to the Intercompany Subordination Agreement as a “Subordinated Creditor” thereunder by executing a joinder thereto or counterpart thereof; provided, however, that with respect to those certain non-Loan Parties that, as of the Effective Date, are in the process of winding-up, liquidating, dissolving or otherwise ceasing  legal existence in accordance with Section 7.02(c) of this Agreement, such non-Loan Party shall have 90 days (or such later date as the Collateral Agent shall agree to, with such agreement not to be unreasonably withheld) to provide such evidence that any such non-Loan Party shall either have (1) become a party to the Intercompany Subordination Agreement as a “Subordinated Creditor” thereunder by executing a joinder thereto or counterpart thereof or (2) been wound-up, liquidated, dissolved or otherwise ceased its legal existence in accordance with Section 7.02(c) of this Agreement; and provided, further, that such deadline shall be 120 days (or such later date as the Collateral Agent shall agree to, with such agreement not to be unreasonably withheld) with respect to any such non-Loan Party listed on Schedule 5.03.

 

(b)        The Collateral Agent shall have received on or before the date that is 5 days after the Effective Date (or such later date as the Collateral Agent shall agree in its reasonable discretion), all original stock certificates and promissory notes required to be pledged under the Security Agreement, in each case accompanied by undated stock powers or allonges, as applicable, executed in blank or other proper instruments of transfer.

 

(c)         Subject in all respects to Article XIII, the Collateral Agent shall have received on or before the date that is forty-five (45) days following the Effective Date (provided, that the Collateral Agent may agree to extend such deadline by up to two additional 30 day periods in its sole discretion), with respect to each Foreign Subsidiary (other than an Excluded Subsidiary) of any Loan Party which is a non-borrowing Subsidiary on the Effective Date, (A) a Joinder Agreement, pursuant to which such Foreign Subsidiary shall be made a party to this Agreement as a Borrower or a Guarantor, (B) customary Collateral Documents as shall be reasonably necessary to provide Liens on the property of and Equity Interests in such Foreign Subsidiary on a basis substantially comparable to the Liens on the Collateral for the benefit of the Secured Parties securing the Obligations granted by Guarantors that are not Foreign Subsidiaries, taking into account applicable foreign law, the advice of local counsel and customary practice in such jurisdiction for similar transactions and (C) such other agreements, instruments, approvals, noticers, filing forms or other documents reasonably requested by the Collateral Agent.

 

(d)         Within forty-five (45) days after the Effective Date (provided, that the Collateral Agent may agree to extend such deadline by up to two additional 30 day periods in its sole discretion) the Collateral Agent shall have received the following, each in form and substance satisfactory to the Collateral Agent and, if applicable, duly executed by the Persons party thereto:

 

(i)          (A) a Joinder Agreement pursuant to which each Israeli Loan Party shall be made a party to this Agreement as a Guarantor, duly executed by each such Israeli Loan Party and (B) a Joinder Agreement pursuant to which each Dutch Loan Party shall be made a party to this Agreement as a Guarantor, duly executed by each such Dutch Loan Party;

 

(ii)         a Security Agreement duly executed by each Israeli Loan Party;

 

(iii)        Israeli Security Documents;

 

(iv)         Form 10 and limited power of attorney in relation to each of the Israeli Fixed Charges, Israeli Floating Charges and any other Collateral Document or Loan Document creating a Lien to which an Israeli Loan Party is a party, each in the form required for filing and registration of such Israeli Fixed Charges, Israeli Floating Charges and any other Collateral Document or Loan Document creating a Lien to which an Israeli Loan Party is a party with the Israeli Companies Registrar;

 

(v)          Form 1 and limited power of attorney in relation to each of the Israeli Share Pledges, in the form required for filing and registration of the Israeli Share Pledges with the Israeli Pledges Registrar;

 

(vi)        an up-to-date extract from a search against the Israeli Loan Parties at the Israeli Companies Registrar evidencing that none of them is registered by the Israeli Companies Registrar as a "company in breach" ("hevrah meferah") and that there is no outstanding Lien over their assets recorded at the Israeli Companies Registrar except as permitted under this Agreement;

 

(vii)        an up-to-date extract from a search against Digital Turbine USA, Inc. and Fyber B.V. at the Israeli Pledges Registrar, evidencing that there is no outstanding Lien recorded at the Israeli Pledges Registrar over their assets except as permitted under this Agreement;

 

(viii)      with respect to the Israeli Loan Parties, officers’ certificate of each Israeli Loan Party, in each case, attaching: (A) its Governing Documents; (B) resolutions of each Israeli Loan Party’s board of directors evidencing approval of, inter alia, (1) the Israeli Security Documents and other transactions evidenced by the Loan Documents; (2) authorization of a specified person or persons to execute the Loan Documents to which each Israeli Loan Party is to become a party as well as to sign and/or dispatch all documents and notices to be signed and/or dispatched by such Israeli Loan Party under or in connection with the Loan Documents to which it is to become a party; (3) certifying, 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 its Governing Documents, have been duly obtained for the transactions contemplated by each Loan Document to which it is to become a party; (C) a copy of a resolution of its sole shareholder approving the transactions set out in paragraph (B) above; (D) incumbency and specimen signatures; and (E) confirming that the guaranteeing and grant of security interest by each Israeli Loan Party would not cause a borrowing, guaranteeing or security or similar limit binding on it to be exceeded;

 

(ix)         evidence that the articles of association of each Israeli Loan Party have been amended to include substantially the following provision: “Notwithstanding anything to the contrary herein or in any shareholders agreement, for so long as any shares of the Company are subject to a security interest granted in favor of Blue Torch Finance LLC (including its respective successors and assigns, the “Secured Party”) under or in connection with the Financing Agreement dated August 29, 2025, among, inter alia, Digital Turbine, Inc. as Borrower, certain Guarantors parties thereto, the Lenders from time to time party thereto and the Secured Party, as may be amended from time to time, the “Financing Agreement”), any restrictions or limitations on, or approval requirements for, the transfer of shares or other securities, the registration of share transfers in the shareholders registry of the company, or the exercise of any rights, preferences, privilege and powers shall not apply to: (i) the creation of any lien over shares or other liens of the Company in accordance with the Loan Documents (as such term is defined in the Financing Agreement); (ii) any transfer of the shares or other securities to any person under or pursuant to enforcement of the Loan Documents, including the Secured Parties or any of their affiliates; and (iii) 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. The Secured Party 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 Party.”

 

(x)         an up-to-date shareholders' registry of each Israeli Loan Party which shall include substantially the following annotation as applicable: “the [number and type of shares] of [Digital Turbine (IL) Ltd.]/[Digital Turbine (EMEA) Ltd.] of nominal value [NIS ●] each, and registered in the name of [Digital Turbine USA, Inc.]/[Fyber B.V.] are pledged and charged in favour of Blue Torch Finance LLC as collateral agent pursuant to the security document made in its favour for the benefit of the Lenders dated [●] 2025, as amended from time to time”;

 

(xi)        legal opinion of Israeli counsel to the Israeli Loan Parties , as to such customary debt financing matters as the Collateral Agent may reasonably request;

 

(xii)       Dutch Security Documents;

 

(xiii)      with respect to each Dutch Loan Party a confirmation that there is no works council with jurisdiction over the transactions as envisaged by the Loan Documents to which it is a party and that there is no obligation for the Dutch Loan Parties to establish a works council pursuant to the Works Council Act (Wet op de Ondernemingsraden), or, if a works council is established, a confirmation that all consultation obligations in respect of such works council have been complied with and that positive unconditional advice has been obtained, attaching a copy of such advice and a copy of the request for such advice;

 

(xiv)       a legal opinion of Greenberg Traurig LLP, counsel to the Dutch Loan Parties, as to such matters as the Collateral Agent may reasonably request; and

 

(xv)       such other agreements, instruments, approvals, noticers, filing forms or other documents reasonably requested by the Collateral Agent.

 

(e)         On or prior to the date that is three (3) Business Days after the date of each Israeli Security Document (as such date may be extended in writing by the Collateral Agent in its sole and absolute discretion), the Israeli Loan Parties, Digital Turbine USA, Inc. and Fyber B.V., as applicable, shall deliver to the Collateral Agent original copies of (A) signature pages to each Israeli Security Document and any other Loan Document creating a Lien to which each Israeli Loan Party is a party duly executed by the relevant Israeli Loan Party, Digital Turbine USA, Inc. and Fyber B.V., as applicable, (B) executed Form 10s with respect to each Israeli Security Document (other than the Israeli Share Pledges) and any other Loan Document creating a Lien to which each Israeli Loan Party is a party duly executed by the relevant Israeli Loan Party, and (C) executed Form 1 with respect to each of Israeli Share Pledges duly executed by applicable Loan Parties.

 

(f)          On or prior to the date that is fourteen (14) days (counting, for this purpose, only those days on which filings may be made with the Israeli Companies Registrar and the Israeli Pledges Registrar) after the date of each Israeli Security Document, the Israeli Loan Parties, Digital Turbine USA, Inc. and Fyber B.V., as applicable, shall deliver to the Collateral Agent evidence that (A) each Israeli Security Document (other than the Israeli Share Pledges) and any other Loan Document creating a Lien to which each Israeli Loan Party is a party were duly filed for registration with the Israeli Companies Registrar and (B) the Form 1 relating to each of the Israeli Share Pledges was duly filed for registration with the Israeli Pledges Registrar.

 

(g)         On or prior to the date that is twenty-one (21) days after the date of each Israeli Security Document, the Israeli Loan Parties, Digital Turbine USA, Inc. and Fyber B.V., as applicable, shall deliver to the Collateral Agent evidence that (A) each Israeli Security Document (other than the Israeli Share Pledges) and any other Loan Document creating a Lien to which each Israeli Loan Party is a party has been duly registered with the Israeli Companies Registrar and an excerpt from a search against each Israeli Loan Party at the Israeli Companies Registrar, in each case demonstrating to the reasonable satisfaction of Collateral Agent that the filing, submission and registration of each of the foregoing Loan Documents with the Israeli Companies Registrar have been completed and evidencing that there is no outstanding Lien over the Israeli Loan Parties’ assets, except as permitted under this Agreement and (B) that each of the Israeli Share Pledges has been duly registered with the Israeli Pledges Registrar and an excerpt from a search against Digital Turbine USA, Inc. and Fyber B.V. at the Israeli Pledges Registrar demonstrating to the reasonable satisfaction of Collateral Agent that the filing, submission and registration of each of the Israeli Share Pledges has been completed and evidencing that there is no outstanding Lien over assets of Digital Turbine USA, Inc. and Fyber B.V., except as permitted under this Agreement.

 

(h)         Within sixty (60) days after the Effective Date, the Loan Parties shall have (x) applied for a court order ordering the removal and termination of such registration of the Historic Israeli Share Pledge, and (y) delivered evidence to the Collateral Agent evidence satisfactory to the Collateral Agent that the registration of the Historic Israeli Share Pledge has been terminated and removed from the registry of the Israeli Pledges Registrar; provided, that the time period for compliance with the foregoing clause (y) shall be automatically extended by one or more additional thirty (30) day periods to the extent that, upon the conclusion of such initial sixty (60) day period and each thirty (30) day period thereafter the Loan Parties are continuing to use commercially reasonable efforts to comply with their obligations under the foregoing clause (y).

 

(i)          (i) Within seven (7) Business Days (counting, for this purpose, only those days on which the Israeli Pledges Registrar is open for business) after the Effective Date, the Collateral Agent shall have received evidence in form and substance satisfactory to the Collateral Agent that the pledges registered with the Israeli Pledges Registrar in favour of Bank of America, N.A. created over the shares held by Fyber B.V. in Digital Turbine (IL) Ltd. and the shares held by Digital Turbine USA, Inc. in Digital Turbine (EMEA) Ltd., each respectively dated June 13, 2025, have been released and de-registered and (ii) prior to the joinder of any other Foreign Subsidiary as required hereunder, the Collateral Agent shall have received evidence in form and substance satisfactory to the Collateral Agent that any Liens on the assets of such Foreign Subsidiary outstanding in connection with the Existing Credit Facility shall have been terminated.

 

(j)          Within one hundred twenty (120) days after the Effective Date, Digital Turbine (IL) Ltd. shall (i) file its Israeli tax return for the fiscal year ending December 31, 2023 with the Israel Tax Authority, and (ii) submit an application to the Israel Tax Authority for a ruling confirming its eligibility for a Preferred Technological Enterprise status under the Israeli Law for the Encouragement of Capital Investments. Digital Turbine (IL) Ltd. shall provide the Collateral Agent with written evidence of such filings and submission promptly upon completion.

 

(k)         Each Lender that has requested a Warrant to be issued after the Effective Date in accordance with the Fee Letter shall have received on or before September 15, 2025 the Warrants to be issued to it pursuant to the Fee Letter, each in substantially the same form as the Warrants issued on the Effective Date, and duly executed by the Persons party thereto.

 

ARTICLE VI

 

REPRESENTATIONS AND WARRANTIES

 

Section 6.01.  Representations and Warranties.  Each Loan Party hereby represents and warrants to the Secured Parties as follows:

 

(a)          Organization, Good Standing, Etc.  Each Loan Party (i) is a corporation, limited liability company or limited partnership duly organized, validly existing and in good standing under the laws of the state or jurisdiction of its organization and neither of the Israeli Loan Parties has been declared, nor has it been warned that it may be declared a “breaching company” (“hevrah meferah”) by the Israeli Companies Registrar, as such term is defined in the Israeli Companies Law, (ii) has all requisite power and authority to own its property and assets and conduct its business as now conducted and as presently contemplated and, in the case of the Borrowers, to make the borrowings hereunder, and to execute and deliver each Loan Document to which it is a party, and to consummate the transactions contemplated thereby, and (iii) is duly qualified to do business and is in good standing in each jurisdiction in which the character of the properties owned or leased by it or in which the transaction of its business makes such qualification necessary, except (solely for the purposes of this subclause (iii)) where the failure to be so qualified and in good standing could not reasonably be expected to have a Material Adverse Effect.

 

(b)          Authorization, Etc.  The execution, delivery and performance by each Loan Party of each Loan Document to which it is or will be a party, (i) have been duly authorized by all necessary action, (ii) do not and will not contravene (A) any of its Governing Documents, (B) any applicable material Requirements of Law or (C) any material Contractual Obligation binding on or otherwise affecting it or any of its properties, (iii) do not and will not result in or require the creation of any Lien (other than pursuant to any Loan Document) upon or with respect to any of its properties, and (iv) do not and will not result in any default, noncompliance, suspension, revocation, impairment, forfeiture or nonrenewal of any permit, license, authorization or approval applicable to its operations or any of its properties, except, in the case of clauses (ii)(B), (ii)(C) and this clause (iv), to the extent where such contravention, default, noncompliance, suspension, revocation, impairment, forfeiture or nonrenewal could not reasonably be expected to have a Material Adverse Effect.

 

(c)         Governmental Approvals.  No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority is required in connection with the due execution, delivery and performance by any Loan Party of any Loan Document to which it is or will be a party including but not limited to, consent of the Israel Innovation Authority, other than (w) public company filings required with the Securities and Exchange Commission following the entry into material contracts, (x) those that have been provided or obtained on or prior to the Effective Date, (y) filings and recordings with respect to Collateral to be made, or otherwise delivered to the Collateral Agent for filing or recordation, on the Effective Date and (z) any authorization or approvals that have been obtained or made and are in full force and effect.

 

(d)         Enforceability of Loan Documents.  This Agreement is, and each other Loan Document to which any Loan Party is or will be a party, when delivered hereunder, will be, a legal, valid and binding obligation of such Person, enforceable against such Person in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity.  The foregoing does not derogate from the requirement to register the Israeli Security Documents and other foreign Collateral Documents to which the Israeli Loan Parties are parties, with the Israeli Companies Registrar and Israeli Pledges Registrar, as applicable, in order to make them enforceable vis-à-vis third parties.

 

(e)         Capitalization.  On the Effective Date, after giving effect to the transactions contemplated hereby to occur on the Effective Date, the authorized Equity Interests of each of Parent’s Subsidiaries and the issued and outstanding Equity Interests of each of Parent’s Subsidiaries are as set forth on Schedule 6.01(e).  All of the issued and outstanding shares of Equity Interests of the Parent and each of its Subsidiaries have been validly issued and, to the extent applicable, are fully paid and nonassessable, and the holders thereof are not entitled to any preemptive, first refusal or other similar rights.  All Equity Interests of such Subsidiaries of the Parent are owned, directly or indirectly, by the Parent free and clear of all Liens (other than Permitted Specified Liens).  Except as described on Schedule 6.01(e), there are no outstanding debt or equity securities of the Parent or any of its Subsidiaries and no outstanding obligations of the Parent or any of its Subsidiaries convertible into or exchangeable for, or warrants, options or other rights (other than stock options granted to employees or directors and directors’ qualifying shares or similar nominal shares to the extent required under applicable Requirements of Law) for the purchase or acquisition from the Parent or any of its Subsidiaries, or other obligations of the Parent or any of its Subsidiaries to issue, directly or indirectly, any shares of Equity Interests of the Parent or any of its Subsidiaries.

 

(f)          Litigation.  Except as set forth in Schedule 6.01(f), there is no pending or, to the best knowledge of any Loan Party, threatened in writing action, suit or proceeding affecting any Loan Party or any of its properties before any court or other Governmental Authority or any arbitrator that (i) if adversely determined, could reasonably be expected to have a Material Adverse Effect or (ii) relates to this Agreement or any other Loan Document or any transaction contemplated hereby or thereby.

 

(g)          Financial Statements.

 

(i)         The Financial Statements, copies of which have been delivered to each Agent and each Lender, fairly present in all material respects the consolidated financial condition of the Parent and its Subsidiaries as at the respective dates thereof and the consolidated results of operations of the Parent and its Subsidiaries for the fiscal periods ended on such respective dates, all in accordance with GAAP (subject in the case of unaudited financial statements to the absence of footnotes and to year-end audit adjustments).  All material indebtedness and other liabilities (including, without limitation, Indebtedness, liabilities for taxes, long-term leases and other unusual forward or long-term commitments), direct or contingent, of the Parent and its Subsidiaries with respect to the periods covered by the Financial Statements are set forth in the Financial Statements to the extent required in accordance with GAAP (subject in the case of unaudited financial statements to the absence of footnotes and to year-end adjustments).  Since March 31, 2025, no event or development has occurred that has had or could reasonably be expected to have a Material Adverse Effect.

 

(ii)         The Parent has heretofore furnished to each Agent and each Lender (A) projected quarterly balance sheets, income statements and statements of cash flows of the Parent and its Subsidiaries for the period from June 30, 2025 through March 31, 2026, and (B) projected annual balance sheets, income statements and statements of cash flows of the Parent and its Subsidiaries for the Fiscal Years ending in March 31, 2025 through March 31, 2028, which projected financial statements shall be updated from time to time pursuant to Section 7.01(a)(vii).

 

(h)         Compliance with Law, Etc.  No Loan Party or any of its Subsidiaries is in violation of (i) any of its Governing Documents, (ii) any material Requirements of Law, except where the failure to so comply could not reasonably be expected to have a Material Adverse Effect or (iii) any term of any material Contractual Obligation (including, without limitation, any Material Contract) binding on or otherwise affecting it or any of its properties, except where the failure to so comply could not reasonably be expected to have a Material Adverse Effect, and no default or event of default has occurred and is continuing thereunder.

 

(i)          ERISA.  Except as set forth on Schedule 6.01(i) hereto, (i)  each Employee Plan (and each related trust, insurance contract or fund, if any) is in compliance with all Requirements of Law in all material respects, (ii) no ERISA Event that could reasonably be expected to result in a Material Adverse Effect has occurred or is reasonably expected to occur, (iii) the most recent annual report (Form 5500 Series) with respect to each Employee Plan, including, for purposes of any Pension Plan, any required Schedule B (Actuarial Information) thereto, copies of which have been filed with the Internal Revenue Service, is complete and correct in all material respects and, for purposes of any Pension Plan, fairly presents the funding status of such Pension Plan, and since the date of such report, there has been no material adverse change in such funding status, (iv) copies of each agreement entered into with the PBGC, the U.S. Department of Labor or the Internal Revenue Service with respect to any Employee Plan have been delivered to the Agents, and (v) each Employee Plan that is intended to be a qualified plan under Section 401(a) of the Internal Revenue Code has been determined by the Internal Revenue Service to be qualified under Section 401(a) of the Internal Revenue Code and the trust related thereto is exempt from federal income tax under Section 501(a) of the Internal Revenue Code, and has received a favorable determination, advisory or opinion letter from the Internal Revenue Service regarding its qualification thereunder, and no event has occurred that could reasonably be expected to result in the disqualification of any such Employee Plan or related trust.  No Loan Party or any of its ERISA Affiliates has incurred any liability to the PBGC which remains outstanding other than the payment of premiums, and there are no premium payments which have become due which are unpaid.  There are no pending or, to the best knowledge of any Loan Party, threatened claims, actions, proceedings or lawsuits (other than claims for benefits in the normal course) asserted or instituted against (A) any Employee Plan or its assets, (B) any fiduciary with respect to any Employee Plan, or (C) any Loan Party or any of its ERISA Affiliates with respect to any Employee Plan.  Except as required by Section 4980B of the Internal Revenue Code or similar state law, no Loan Party or any of its ERISA Affiliates maintains an employee welfare benefit plan (as defined in Section 3(1) of ERISA) that provides health benefits (through the purchase of insurance or otherwise) for any retired or former employee of any Loan Party or any of its ERISA Affiliates or otherwise has any obligation to provide any such benefits for any current employee after such employee’s termination of employment.  Each arrangement pursuant to which a Loan Party has an obligation to pay or accrue nonqualified deferred compensation (within the meaning of Section 409A of the Internal Revenue Code) has been administered in all material respects in accordance with plan documents that satisfy the requirements of Section 409A of the Internal Revenue Code.

 

(j)          Taxes, Etc.  Except where the failure to so comply could not reasonably be expected to have a Material Adverse Effect, (i) all U.S. federal income and other material state and local and foreign Tax returns and other reports required by applicable Requirements of Law to be filed by any Loan Party have been timely filed (taking into account any valid extensions) and (ii) all Taxes imposed upon any Loan Party or any property of any Loan Party which have become due and payable on or prior to the date hereof have been paid, except (A) unpaid Taxes in an aggregate amount at any one time not in excess of $1,000,000, and (B) Taxes contested in good faith by proper proceedings which stay the imposition of any Lien resulting from the non-payment thereof and with respect to which adequate reserves have been set aside for the payment thereof on the Financial Statements in accordance with GAAP.

 

(k)          Regulations T, U and X.  No Loan Party is or will be engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation T, U or X), and no proceeds of any Loan will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock or for any purpose that violates, or is inconsistent with, the provisions of Regulation T, U and X.

 

(l)           Nature of Business.  No Loan Party is engaged in any material line of business other than as set forth on Schedule 6.01(l) and any other lines of business that are reasonably similar, corollary, ancillary, incidental, synergistic, related, complementary or incidental thereto or a reasonable extension, development or expansion thereof, in each case, as determined by the Administrative Borrower in good faith.

 

(m)       Adverse Agreements, Etc.  No Loan Party or any of its Subsidiaries is a party to any Contractual Obligation or subject to any restriction or limitation in any Governing Document or any judgment, order, regulation, ruling or other requirement of a court or other Governmental Authority, which (either individually or in the aggregate) has, or in the future could reasonably be expected (either individually or in the aggregate) to have, a Material Adverse Effect.

 

(n)         Permits, Etc.  Each Loan Party has, and is in compliance with, all permits, licenses, authorizations, approvals, entitlements and accreditations, including Environmental Permits, required for such Person lawfully to own, lease, manage or operate, or to acquire, each business and Facility 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 such permit, license, authorization, approval, entitlement or accreditation, including any such Environmental Permit, and there is no claim that any of the foregoing is not in full force and effect, except where such suspension, revocation, impairment, forfeiture or non-renewal could not reasonably be expected to have a Material Adverse Effect.

 

(o)         Properties.  (i) Each Loan Party has good and marketable title to, valid leasehold interests in, or valid licenses to use, all property and assets material to its business, free and clear of all Liens, except Permitted Liens.  To the knowledge of each Loan Party, all such properties and assets are in good working order and condition, ordinary wear and tear, casualty and condemnation excepted and (ii) as of the Effective Date, Schedule 1.01(B) sets forth the address of each real estate asset (or each set of such assets that collectively comprise one operating property) that is owned in fee simple by any Loan Party.

 

(p)         Employee and Labor Matters.  Except as set forth on Schedule 6.01(p), (i) each Loan Party and its Subsidiaries is in compliance with all Requirements of 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 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 that, in each case, has resulted, or could reasonably be expected to result, in a material liability to the Loan Party or Subsidiary 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 labor dispute pending or threatened against any Loan Party or any Subsidiary that, in each case, has resulted, or could reasonably be expected to result, in a material liability to the Loan Party or Subsidiary, and (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. No Loan Party or Subsidiary has incurred any material liability or obligation under the Worker Adjustment and Retraining Notification Act of 1988, as amended, or any similar Requirements of Law (“WARN”), which remains unpaid or unsatisfied.  All 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.

 

(q)         Environmental Matters.  Except as set forth on Schedule 6.01(q) hereto, and in the case of clauses (i) through (v), except as could not reasonably be expected to have a Material Adverse Effect, (i) no Loan Party or any of its Subsidiaries is in violation of any Environmental Law that could reasonably be expected to have a Material Adverse Effect, (ii) each Loan Party and each of its Subsidiaries has, and is in compliance with, all Environmental Permits required 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 have a Material Adverse Effect; (iii)  to the best knowledge of any Loan Party, there has been no Release or threatened Release of Hazardous Materials on, in, at, under or from any properties currently or, to the knowledge of any Loan Party, 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 have a Material Adverse Effect; (iv)  there are no pending or, to the best knowledge of any Loan Party, 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 have a Material Adverse Effect; (v)  neither any Loan Party nor any of its Subsidiaries is performing or responsible for any Remedial Action that could reasonably be expected to have a Material Adverse Effect; 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.

 

(r)          Insurance.  Each Loan Party maintains all insurance required by Section 7.01(h).  Schedule 6.01(r) sets forth a list of all such insurance maintained by or for the benefit of each Loan Party on the Effective Date.

 

(s)          Use of Proceeds.  The proceeds of the Term Loans shall be used (a) to refinance the Existing Credit Facility and other existing indebtedness of the Borrowers, (b) for general corporate purposes and (c) to pay fees and expenses in connection with the transactions contemplated hereby.

 

(t)         Solvency.  After giving effect to the transactions contemplated by this Agreement and before and after giving effect to each Loan, the Loan Parties on a consolidated basis are Solvent.  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 contemplated by this Agreement or the other Loan Documents with the intent to hinder, delay, or defraud either present or future creditors of such Loan Party.

 

(u)         Intellectual Property.  Except as set forth on Schedule 6.01(u), each Loan Party owns or licenses or otherwise has the right to use all Intellectual Property rights that are necessary for the operation of its business, without infringement upon or violation of the Intellectual Property rights of any other Person with respect thereto, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.  Set forth on Schedule 6.01(u) is a complete and accurate list as of the Effective Date of each item of Registered Intellectual Property owned by each Loan Party.  No trademark or other advertising device, product, process, method, substance, part or other material now employed by any Loan Party infringes upon or violates any Intellectual Property rights owned by any other Person, and no claim or litigation regarding any of the foregoing is pending or threatened in writing, except, in each case, for such infringements and conflicts which could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

 

(v)        Material Contracts.  Set forth on Schedule 6.01(v) is a complete and accurate list as of the Effective Date of all Material Contracts of each Loan Party, showing the parties and amendments and modifications thereto.  Each such Material Contract (i) is in full force and effect and is binding upon and enforceable against each Loan Party that is a party thereto and, to the best knowledge of such Loan Party, all other parties thereto in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity, (ii) has not been otherwise amended or modified, and (iii) is not in default due to the action of any Loan Party or, to the best knowledge of any Loan Party, any other party thereto, except where such default could not reasonably be expected to have a Material Adverse Effect.

 

(w)         Investment Company Act.  None of the Loan Parties is (i) an “investment company” or an “affiliated person” or “promoter” of, or “principal underwriter” of or for, an “investment company”, as such terms are defined in the Investment Company Act of 1940, as amended, or (ii) subject to regulation under any Requirement of Law that limits in any respect its ability to incur Indebtedness or which may otherwise render all or a portion of the Obligations unenforceable.

 

(x)         Customers and Suppliers.  Except as could not reasonably be expected to have a Material Adverse Effect, 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, on the one hand, and any customer or any group thereof, on the other hand, whose agreements with any Loan Party are individually or in the aggregate material to the business or operations of such Loan Party, or (ii) any Loan Party, on the one hand, and any supplier or any group thereof, on the other hand, whose agreements with any Loan Party are individually or in the aggregate material to the business or operations of such Loan Party; 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.

 

(y)         [Reserved].

 

(z)         [Reserved].

 

(aa)       [Reserved].

 

(bb)        Anti-Money Laundering Laws and Sanctions.

 

(i)           None of any Loan Party, any Subsidiary thereof, or any of their respective directors, officers, or employees, or to the knowledge of any Loan Party, any of their respective agents or Affiliates is a Sanctioned Person.

 

(ii)       Each Loan Party and its Subsidiaries has implemented and maintains in effect policies and procedures reasonably designed to ensure compliance by each Loan Party and its Subsidiaries and their respective directors, officers, employees, and agents with all applicable Anti-Money Laundering Laws and Sanctions.

 

(iii)        Each Loan Party, each Subsidiary thereof, and each of their respective directors and officers, and to the knowledge of any Loan Party, their respective employees, agents, and Affiliates are, and (i) have since April 24, 2019 (or, if later with respect to any Subsidiary, the date such Subsidiary was formed or acquired) been, in compliance with all applicable Sanctions and (ii) have in the last five (5) years (or, if a shorter period with respect to any Subsidiary, since the date such Subsidiary was formed or acquired) been, in compliance with all applicable Anti-Money Laundering Laws in all material respects. Notwithstanding the foregoing, with respect to Loan Parties and Subsidiaries that were not Subsidiaries of the Parent as of such dates, this clause (iii) shall be qualified by “to the knowledge of any Loan Party” for all periods prior to such Loan Party or Subsidiary becoming a Subsidiary of the Parent).

 

(iv)        Since April 24, 2019 (or, if later with respect to any Subsidiary, the date such Subsidiary was formed or acquired), the Loan Parties and their Subsidiaries have not received notice of any action, suit, proceeding, or investigation from any Governmental Authority that enforces Sanctions, and to the knowledge of the Loan Parties and their Subsidiaries, no such action, suit, proceeding, or investigation is pending or threatened. In the last five (5) years (or, if a shorter period with respect to any Subsidiary, since the date such Subsidiary was formed or acquired), the Loan Parties and their Subsidiaries have not received notice of any action, suit, proceeding, or investigation from any Governmental Authority that enforces Anti-Money Laundering Laws, and to the knowledge of the Loan Parties and their Subsidiaries, no such action, suit, proceeding, or investigation is pending or threatened. Notwithstanding the foregoing, with respect to Loan Parties and Subsidiaries that were not Subsidiaries of the Parent as of such dates, this clause (iv) shall be qualified by “to the knowledge of any Loan Party” for all periods prior to such Loan Party or Subsidiary becoming a Subsidiary of the Parent).

 

(v)        The representation in paragraph (i) above shall be given by and apply to any Loan Party and any Subsidiary thereof only to the extent that giving, complying with or receiving the benefit of (as applicable) such representation does not result in any violation of (i) Council Regulation (EC) No 2271/96, (ii) section 7 of the German Foreign Trade Regulation (Außenwirtschaftsverordnung)  or any similar anti-boycott statute, law or regulation (together, the "Anti-Boycott Regulations").

 

(vi)        In relation to each Lender that notifies the Administrative Agent to this effect, the representation in paragraph (i) shall only apply for the benefit of that Lender to the extent that it would not result in any violation of, conflict with or liability under any Anti-Boycott Regulations.

 

(cc)        Anti-Corruption Laws.

 

(i)           Neither any Loan Party nor, to the best knowledge of any Loan Party, any director, officer, employee, or any other Person acting on behalf of any Loan Party, has offered, promised, paid, given or authorized the payment or giving of any money or other thing of value, directly or indirectly, to or for the benefit of any Person, including without limitation, any employee, official or other Person acting on behalf of any Governmental Authority, or otherwise engaged in any activity that may violate any Anti-Corruption Law in any material respects.

 

(ii)          Neither any Loan Party nor, to the best knowledge of any Loan Party, any director, officer, employee, or any other Person acting on behalf of any Loan Party, has engaged in any activity that would breach any Anti-Corruption Laws in any material respects.

 

(iii)        To the best of each Loan Party’s knowledge and belief, there is no, and since April 24, 2019 (or, if later with respect to any Subsidiary, the date such Subsidiary was formed or acquired)  have been no, pending or, to the best knowledge of any Loan Party, threatened action, suit, proceeding or investigation before any court or other Governmental Authority against any Loan Party or any of its directors, officers, employees or other Person acting on its behalf that relates to a potential violation of any Anti-Corruption Laws.

 

(iv)      Each Loan Party and its Subsidiaries has implemented and maintains in effect policies and procedures reasonably designed to ensure compliance by each Loan Party and its Subsidiaries and their respective directors, officers, employees, and agents with all applicable Anti-Corruption Laws.

 

(v)          Each Loan Party, each Subsidiary thereof, and each of their respective directors and officers, and to the knowledge of any Loan Party, their respective employees, agents, and Affiliates are, and have in the last five (5) years (or, if a shorter period with respect to any Subsidiary, since the date such Subsidiary was formed or acquired) been, in compliance with all applicable Anti-Corruption Laws.

 

(dd)        [Reserved].

 

(ee)        [Reserved].

 

(ff)        Proceedings to Enforce Agreement.  In any proceeding to enforce any Loan Document governed by New York law, the choice of New York law as the governing law of such Loan Document will be recognized and applied, the irrevocable submission of it to the jurisdiction of the courts of the State of New York or of the United States of America for the Southern District of New York will be valid, legal, binding and enforceable, and any judgment obtained in such a court will be recognized and enforceable without reconsideration as to the merits of such judgment.

 

(gg)      Pari Passu.  The obligations of each Loan Party under this Agreement and the other Loan Documents to which it is a party rank and will rank at least pari passu in priority of payment and in all other respects with all its other present and future unsecured and unsubordinated Indebtedness of such Loan Party.

 

(hh)        Exchange Controls.  Each Loan Party has the ability to lawfully pay solely and exclusively in Dollars the total amount which is, or may become, payable by it to the Lender under the Loan Documents.

 

(ii)          Technology Security Systems.

 

(i)          Each Loan Party and each of its Subsidiaries has implemented and maintains adequate administrative, physical, and technical security measures and procedures to protect the confidentiality, integrity, and security of (A) its computers, computer systems, servers, hardware, software, websites, databases, networks, and all other information technology equipment and systems, including any hosted locations and other outsourced systems and processes (all of the foregoing in this clause (A), “Loan Party Systems”) and (B) all individually identifiable information, including protected health information and other sensitive and confidential information, accessed, collected, used, processed, stored, transferred or disclosed by or on behalf of any Loan Party or any Subsidiary of any Loan Party (all such data and information referred to in this clause (B), “Loan Party Data”), in all cases including from theft, destruction, corruption, loss or unauthorized use, access, interruption, deletion, alteration or modification by any Person.  All Loan Party Systems are operational and have adequate backups and disaster recovery arrangements that are at least reasonable and at least consistent with, as protective as, and no less rigorous than, industry standards for companies and businesses of similar size in similar industries.   Without limiting the generality of the foregoing, each Loan Party and each of its Subsidiaries (x) maintains applicable equipment and software in physically secure premises, (y) utilizes industry-accepted virus and intrusion checking software and firewalls, and (z) limits access to Loan Party Data to only those employees and agents who need such access for the conduct of the business of the Loan Parties and their Subsidiaries.

 

(ii)         No Loan Party or any Subsidiary of any Loan Party has experienced any (A) material security incidents, data breaches, intrusions or unauthorized access, use or compromise of any of the Loan Party Systems, (B) material unauthorized collection, access, use, processing, loss, compromise, interruption, deletion, modification or disclosure of any Loan Party Data or trade secrets of any Loan Party or any Subsidiary of any Loan Party or (C) material cyber, social engineering, spoofing, phishing, ransom, viral or other attack, theft or intrusion that that has allowed an unauthorized Person to access, copy, encrypt or otherwise use any Loan Party Data (all of the foregoing clauses (A), (B) and (C), “Security Breaches”).  Each Loan Party and each of its Subsidiaries is in material compliance with all Requirements of Laws regarding the privacy or security of all Loan Party Data.  No Loan Party or any Subsidiary of any Loan Party has received or is aware of any notice, allegation, complaint or other communication, and to the knowledge of the Loan Parties there is no pending investigation by any Governmental Authority or other Person regarding any actual or possible violation of any Requirements of Laws regarding the privacy or security of any Loan Party Data.

 

(jj)         Full Disclosure.

 

(i)          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 written 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 Borrowers’ 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, when taken together, omits to state any material fact necessary to make the statements therein, when taken as a whole, in the light of the circumstances under which it was made, not misleading in any material respect.

 

(ii)         Projections have been prepared on a reasonable basis and in good faith 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 Lenders, and Parent is not be 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 (A) Projections are by their nature subject to significant uncertainties and contingencies, many of which are beyond the Loan Parties’ control, (B) actual results may differ materially from the Projections and such variations may be material and (C) the Projections are not a guarantee of performance.

 

(kk)       Historic Israeli Share Pledge.  As of the Effective Date, all indebtedness to which the Historic Israeli Share Pledge relates has been repaid in full or otherwise no longer constitutes an obligation of the Parent or any of its Subsidiaries.

 

(ll)        Works Council. The Administrative Agent shall have received from a Dutch Loan Party (if any) a confirmation by an authorized signatory of that Dutch Loan Party that there is no works council with jurisdiction over the transactions as envisaged by any Loan Document to which it is a party and that there is no obligation for that Dutch Loan Party to establish a works council pursuant to the Works Council Act (Wet op de Ondernemingsraden), or, if a works council is established, a confirmation that all consultation obligations in respect of such works council have been complied with and that positive unconditional advice has been obtained, attaching a copy of such advice and a copy of the request for such advice.

 

(mm)     Centre of Main Interest and Establishments. For the purposes of the Insolvency Regulation, the centre of main interest (as that term is used in Article 3(1) of the Insolvency Regulation) for each Dutch Loan Party is in the Netherlands and it has no “establishment” (as that term is used in Article 2(10) of the Insolvency Regulation) in any other jurisdiction.

 

(nn)       Tax Residency.  Fyber B.V. is resident for tax purposes in the Federal Republic of Germany.

 

(oo)       Dutch Fiscal Unity. A fiscal unity (fiscale eenheid) for Dutch corporate income tax and Dutch value added tax purposes, if any, consists of Dutch Loan Parties only.

 

ARTICLE VII

 

COVENANTS OF THE LOAN PARTIES AND OTHER COLLATERAL MATTERS

 

Section 7.01.  Affirmative Covenants.  So long as any principal of or interest on any Loan or any other Obligation (whether or not due) shall remain unpaid (other than Contingent Indemnity Obligations) or any Lender shall have any Commitment hereunder, each Loan Party will, unless the Required Lenders shall otherwise consent in writing:

 

(a)          Reporting Requirements.  Furnish to each Agent for delivery to each Lender:

 

(i)          as soon as available, and in any event (1) with respect to the fiscal month of Parent and its Subsidiaries ending July 31, 2025, no later than September 14, 2025 and (2) within 30 days after the end of each fiscal month of the Parent and its Subsidiaries commencing with the first fiscal month of the Parent and its Subsidiaries ending after the Effective Date (without regard as to whether any such month is a full or partial fiscal month), (x) internally prepared consolidated balance sheets, statements of operations and retained earnings and commencing with the fiscal month of Parent and its Subsidiaries ending October 31, 2025, statements of cash flows as at the end of such fiscal month, and for the period commencing at the end of the immediately preceding Fiscal Year and ending with the end of such fiscal month, setting forth in each case in comparative form the figures for the corresponding date or period set forth in (A) the financial statements for the immediately preceding Fiscal Year, and (B) the Projections, all in reasonable detail and certified by an Authorized Officer of the Parent as fairly presenting, in all material respects, the financial position of the Parent and its Subsidiaries as at the end of such fiscal month and the results of operations, retained earnings and cash flows of the Parent and its Subsidiaries for such fiscal month and for such year-to-date period, in accordance with GAAP applied in a manner consistent with that of the most recent audited financial statements furnished to the Agents and the Lenders, subject to the absence of footnotes and normal year-end adjustments and (y) a report of key performance indicators by category during such fiscal month for the business of the Parent and its Subsidiaries and any additional financial information as may be reasonably requested by the Administrative Agent;

 

(ii)        as soon as available and in any event within 45 days after the end of each fiscal quarter of the Parent and its Subsidiaries commencing with the first fiscal quarter of the Parent and its Subsidiaries ending after the Effective Date, consolidated balance sheets, statements of operations and retained earnings and statements of cash flows of the Parent and its Subsidiaries as at the end of such quarter, and for the period commencing at the end of the immediately preceding Fiscal Year and ending with the end of such quarter, setting forth in each case in comparative form the figures for the corresponding date or period set forth in (A) the financial statements for the immediately preceding Fiscal Year and (B) the Projections, all in reasonable detail and certified by an Authorized Officer of the Parent as fairly presenting, in all material respects, the financial position of the Parent and its Subsidiaries as of the end of such quarter and the results of operations and cash flows of the Parent and its Subsidiaries for such quarter and for such year-to-date period, in accordance with GAAP applied in a manner consistent with that of the most recent audited financial statements of the Parent and its Subsidiaries furnished to the Agents and the Lenders, subject to the absence of footnotes and normal year-end adjustments;

 

(iii)        as soon as available, and in any event within 90 days after the end of each Fiscal Year of the Parent and its Subsidiaries, consolidated balance sheets, statements of operations and retained earnings and statements of cash flows of the Parent and its Subsidiaries as at the end of such Fiscal Year, setting forth in each case in comparative form the figures for the corresponding date or period set forth in (A) the financial statements for the immediately preceding Fiscal Year, and (B) the Projections, all in reasonable detail and prepared in accordance with GAAP, and accompanied by a report and an opinion, prepared in accordance with generally accepted auditing standards, of independent certified public accountants of nationally recognized standing selected by the Parent and satisfactory to the Agents (which report and opinion shall not include (1) any qualification, exception or explanatory paragraph expressing substantial doubt about the ability of the Parent or any of its Subsidiaries to continue as a going concern or any qualification or exception as to the scope of such audit, or (2) any qualification which relates to the treatment or classification of any item and which, as a condition to the removal of such qualification, would require an adjustment to such item, the effect of which would be to cause any noncompliance with the provisions of Section 7.03), in each case, other than resulting from an upcoming maturity date with respect to the Obligations, together with a written statement of such accountants (x) to the effect that, in making the examination necessary for their certification of such financial statements, they have not obtained any knowledge of the existence of an Event of Default or a Default under Section 7.03, (y) if such accountants shall have obtained any knowledge of the existence of an Event of Default or such Default, describing the nature thereof and (z) certifying that such consolidated financial statements fairly present, in all material respects, the consolidated financial position of the Parent and its Subsidiaries as at the dates indicated and its income and cash flows for the periods indicated in conformity with GAAP;

 

(iv)        simultaneously with the delivery of the financial statements of the Parent and its Subsidiaries required by clauses (i), (ii) and (iii) of this Section 7.01(a), a Compliance Certificate:

 

(A)         (x) stating that such Authorized Officer has reviewed the provisions of this Agreement and the other Loan Documents and has made or caused to be made under his or her supervision a review of the condition and operations of the Parent and its Subsidiaries during the period covered by such financial statements with a view to determining whether the Parent and its Subsidiaries were in compliance with all of the provisions of this Agreement and such Loan Documents at the times such compliance is required hereby and thereby, and that such review has not disclosed, and such Authorized Officer has no knowledge of, the occurrence and continuance during such period of an Event of Default or Default or, if an Event of Default or Default had occurred and continued or is continuing, describing the nature and period of existence thereof and the action which the Parent and its Subsidiaries propose to take or have taken with respect thereto and (y), identifying each Subsidiary of the Parent as a Loan Party or an Excluded Subsidiary or confirming that there is no change in such information since the later of the Effective Date and the date of the last such list;

 

(B)         in the case of the delivery of the financial statements of the Parent and its Subsidiaries required by clauses (ii) and (iii) of this Section 7.01(a), (1) attaching a schedule showing the calculation of the financial covenants specified in Section 7.03 and the calculation of the Leverage Ratio for the applicable period for purposes of determining the Applicable Margin in accordance with the terms of the definition thereof, (2) including a discussion and analysis of the financial condition and results of operations of the Parent and its Subsidiaries for the portion of the Fiscal Year then elapsed and discussing the reasons for any significant variations from the Projections for such period and the figures for the corresponding period in the previous Fiscal Year, and (3) setting forth a calculation of any actual unpaid Tax liability of the Parent and its Subsidiaries, and

 

(C)        in the case of the delivery of the financial statements of the Parent and its Subsidiaries required by clause (iii) of this Section 7.01(a), attaching (1) a summary of all material insurance coverage maintained as of the date thereof by any Loan Party or any of its Subsidiaries and evidence that such insurance coverage meets the requirements set forth in Section 7.01, each applicable Collateral Document, together with such other related documents and information as the Administrative Agent may reasonably require, (2) the calculation of the Excess Cash Flow in accordance with the terms of Section 2.05(c)(i) and (3) confirmation that there have been no changes to the information contained in the Perfection Certificate delivered on the Effective Date or the date of the most recently updated Perfection Certificate delivered pursuant to this clause (iv) and/or attaching an updated Perfection Certificate identifying any such changes to the information contained  therein;

 

(v)          [reserved];

 

(vi)         [reserved];

 

(vii)       as soon as available (and in any event not later than 60 days after the end of each Fiscal Year), a certificate of an Authorized Officer of the Parent (A) attaching Projections for the Parent and its Subsidiaries, supplementing and superseding the Projections previously required to be delivered pursuant to this Agreement, prepared on a monthly basis and otherwise in form and substance reasonably satisfactory to the Agents, for the immediately succeeding Fiscal Year for the Parent and its Subsidiaries and (B) certifying that the representations and warranties set forth in Section 6.01(jj)(ii) are true and correct in all material respects with respect to the Projections;

 

(viii)     promptly after submission to any Governmental Authority, to the extent permitted by applicable law, all documents and information furnished to such Governmental Authority in connection with any investigation of any Loan Party other than routine inquiries by such Governmental Authority;

 

(ix)        as soon as possible, and in any event within 3 days after the occurrence of an Event of Default or Default or the occurrence of any event or development that could reasonably be expected to have a Material Adverse Effect, the written statement of an Authorized Officer of the Administrative Borrower setting forth the details of such Event of Default or Default or other event or development having a Material Adverse Effect and the action which the affected Loan Party proposes to take with respect thereto;

 

(x)         as soon as possible and in any event: (A) within 5 Business Days after the occurrence of any ERISA Event, notice of such ERISA Event (in reasonable detail), (B) within 5 Business Days after receipt thereof by any Loan Party or any of its ERISA Affiliates from the PBGC (in the case of an ERISA Affiliate of a Loan Party, to the extent that a Loan Party has actual knowledge of such receipt), copies of each notice received by any Loan Party or any of its ERISA Affiliates of the PBGC’s intention to terminate any Pension Plan or to have a trustee appointed to administer any Pension Plan, (C)  within 5 Business Days after receipt thereof by any Loan Party or any of its ERISA Affiliates from a sponsor of a Multiemployer Plan or from the PBGC (in the case of an ERISA Affiliate of a Loan Party, to the extent that a Loan Party has actual knowledge of such receipt), a copy of each notice received by any Loan Party or any of its ERISA Affiliates concerning the imposition or amount of withdrawal liability under Section 4202 of ERISA or indicating that such Multiemployer Plan may enter reorganization status under Section 4241 of ERISA, and (D) within 5 Business Days after any Loan Party sends notice of a plant closing or mass layoff (as defined in WARN) to employees, copies of each such notice sent by such Loan Parties;

 

(xi)       promptly after the commencement thereof but in any event not later than 5 Business Days after service of process with respect thereto on, or the obtaining of knowledge thereof by, any Loan Party, notice of each action, suit or proceeding before any court or other Governmental Authority or other regulatory body or any arbitrator which, if adversely determined, could reasonably be expected to have a Material Adverse Effect;

 

(xii)       as soon as possible and in any event within 5 Business Days after execution, receipt or delivery thereof, copies of any material notices that any Loan Party executes or receives in connection with any Material Contract;

 

(xiii)      as soon as possible and in any event within 5 Business Days after execution, receipt or delivery thereof, copies of any material notices that any Loan Party executes or receives in connection with the sale or other Disposition of the Equity Interests of, or a material portion of the assets of, any Loan Party;

 

(xiv)       as soon as possible and in any event within 5 Business Days after the delivery thereof to the Parent’s or the Borrower’s Board of Directors, copies of all reports or other information so delivered;

 

(xv)        promptly after (A) the sending or filing thereof, copies of all material statements, reports and other information any Loan Party sends to any holders of its Indebtedness or its securities or files with the SEC or any national (domestic or foreign) securities exchange and (B) the receipt thereof, a copy of any material notice received from any holder of its Indebtedness;

 

(xvi)       promptly upon receipt thereof, copies of all financial reports (including, without limitation, management letters), if any, submitted to any Loan Party by its auditors in connection with any annual or interim audit of the books thereof;

 

(xvii)     promptly upon request, any certification or other evidence reasonably requested from time to time by any Lender in its sole discretion, confirming the Borrowers’ compliance with Section 7.02(r);

 

(xviii)    [reserved];

 

(xix)      simultaneously with the delivery of the financial statements of the Parent and its Subsidiaries required by clauses (i), (ii) and (iii) of this Section 7.01(a), if, as a result of any change in accounting principles and policies from those used in the preparation of the Financial Statements that is permitted by Section 7.02(q), the consolidated financial statements of the Parent and its Subsidiaries delivered pursuant to clauses (i), (ii) and (iii) of this Section 7.01(a) 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 or more statements of reconciliation for all such prior financial statements in form and substance reasonably satisfactory to the Agents;

 

(xx)       [reserved];

 

(xxi)      as soon as available, and in any event within 5 Business Days after the end of each calendar week, a calculation (which may be provided by email) of the Liquidity (including Domestic Liquidity) of the Parent and its Subsidiaries as of the last day of such week, in form and substance reasonably satisfactory to the Agents;

 

(xxii)     a summary of all Security Breaches, all investigations by a Governmental Authority or other Person regarding an actual or possible material violation of any Requirements of Law regarding the privacy or security of any Loan Party Data, and all notices, allegations, complaints, and other communications relating to any of the foregoing;

 

(xxiii)    promptly upon written request, such other information concerning the condition or operations, financial or otherwise, of any Loan Party (including, without limitation, any Environmental, Social, and Corporate Governance information) as any Agent may from time to time may reasonably request; and

 

(xxiv)    promptly after the execution thereof or receipt thereof by any Loan Party, copies of any material notices, amendments, waiver, consents, forbearances and notices of default or termination delivered or received with respect to any Indebtedness (excluding Indebtedness evidence by this Agreement) having an aggregate amount outstanding in excess of $1,000,000.

 

Notwithstanding the foregoing, the obligations in clause (a)(ii) and (a)(iii) of this Section 7.01 may be satisfied with respect to financial information of the Parent and its Subsidiaries by furnishing (x) the Parent’s Form 10-K or 10-Q, as applicable, filed with the SEC by the deadlines appliable to such filings (and in any event, in accordance with the deadlines set forth in clause (a)(ii) and (a)(iii) of this Section 7.01 and it being understood and agreed that this paragraph shall not be construed to permit any extension of the deadlines set forth in clause (a)(ii) and (a)(iii) of this Section 7.01), (y) the report and opinion of an accounting firm contemplated by clause (a)(iii) of this Section 7.01 and (z) the figures in comparative form for the corresponding date or period set forth in the Projections contemplated by clauses (a)(ii) and (a)(iii) of this Section 7.01.

 

The Lenders and the Agents agree and acknowledge that by their receipt of the information required to be delivered under this Agreement, including Section 7.01, they could be receiving material non-public information (within the meaning of United States federal, state or other applicable securities laws).

 

(b)          Additional Borrowers, Guarantors and Collateral Security.  Cause:

 

(i)         each Subsidiary (other than an Excluded Subsidiary) of any Loan Party not in existence on the Effective Date, and each Subsidiary (other than an Excluded Subsidiary) of any Loan Party which is a non-borrowing Subsidiary on the Effective Date or upon formation or acquisition but later ceases to be a non-borrowing Subsidiary, or that ceases to be an Excluded Subsidiary to execute and deliver to the Collateral Agent promptly and in any event within 3 days (or such longer period as the Collateral Agent may agree to in its reasonable discretion in writing) after the formation, acquisition or change in status thereof, (A) a Joinder Agreement, pursuant to which such Subsidiary shall be made a party to this Agreement as a Borrower or a Guarantor, (B) a supplement to the Security Agreement (in form reasonably acceptable to the Required Lenders and the Agent), together with (1) any certificates evidencing all of the Equity Interests of any Person directly owned by such Subsidiary required to be pledged under the terms of the Security Agreement (but not creating any obligation to certificate any Equity Interests), (2) undated stock powers for such certificated Equity Interests executed in blank, and (3) such customary opinions of counsel as the Collateral Agent may reasonably request, (C) to the extent required under the terms of this Agreement, one or more Mortgages creating on each Facility of such Subsidiary a perfected, first priority Lien (in terms of priority, subject only to Permitted Liens) and such other Real Property Deliverables as may be required by the Collateral Agent with respect to each such Facility, (D) [reserved] and E if the respective Subsidiary  owns registrations of or applications for U.S. Patents, Trademarks and/or Copyrights that constitute Collateral, an Intellectual Property Security Agreement, (E) such other agreements, instruments, approvals or other documents reasonably requested by the Collateral Agent in order to create, perfect, establish the first priority of (subject to Permitted Liens) or otherwise protect any Lien purported to be covered by any such Security Agreement, Collateral Document or Mortgage or otherwise to effect the intent that such Subsidiary shall become bound by all of the terms, covenants and agreements contained in the Loan Documents and the Collateral Documents and that all property and assets of such Subsidiary shall become Collateral for the Obligations other than exclusions and exceptions expressly set forth in the Loan Documents; and

 

(ii)         each Loan Party directly owning the Equity Interests of any such Subsidiary to execute and deliver promptly and in any event within 3 days (or such longer period as the Collateral Agent may agree to in its reasonable discretion in writing) after the formation or acquisition of such Subsidiary or of such Subsidiary ceasing to be an Excluded Subsidiary a Pledge Amendment (as defined in the Security Agreement), together with (A) certificates evidencing all of the Equity Interests of such Subsidiary required to be pledged under the terms of the Security Agreement, (B) undated stock powers or other appropriate instruments of assignment for such Equity Interests executed in blank with signature guaranteed, (C) such customary opinions of counsel as the Collateral Agent may reasonably request and (D) such other agreements, instruments, approvals or other documents reasonably requested by the Collateral Agent.

 

Notwithstanding the foregoing, no Excluded Subsidiary shall be required to become a Guarantor hereunder (and, as such, shall not be required to deliver the documents required by clause (i) above); provided, however, that (I) if the Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary are owned by a Loan Party, such Loan Party shall deliver all such documents, instruments, agreements (including, without limitation, at the reasonable request of the Collateral Agent, a pledge agreement governed by the laws of the jurisdiction of the organization of such Excluded Subsidiary) and certificates described in clause (ii) above to the Collateral Agent, and take all commercially reasonable actions reasonably requested by the Collateral Agent or otherwise necessary to grant and to perfect a first-priority Lien (subject to Permitted Specified Liens) in favor of the Collateral Agent, for the benefit of the Agents and the Lenders, in 65% of the voting Equity Interests of such Foreign Subsidiary and 100% of all other Equity Interests of such Foreign Subsidiary owned by such Loan Party, and (II) promptly and in any event within 20 days after the effectiveness of any amendment of the Internal Revenue Code to allow for 100% of the voting Equity Interests of such Foreign Subsidiary to be pledged to the Collateral Agent without material adverse tax consequences to the Parent and its Subsidiaries, 100% of such voting Equity Interests shall be pledged pursuant to clause (ii) above.

 

(c)          Compliance with Laws; Payment of Taxes.

 

(i)          Comply, and cause each of its Subsidiaries to comply, with all Requirements of Law, judgments and awards (including any settlement of any claim that, if breached, could give rise to any of the foregoing), except to the extent the failure to so comply could not reasonably be expected to have a Material Adverse Effect.

 

(ii)         Pay, and cause each of its Subsidiaries to pay, in full before delinquency or before the expiration of any extension period, all Taxes imposed upon any Loan Party or any of its Subsidiaries or any property of any Loan Party or any of its Subsidiaries, except (i) unpaid Taxes in an aggregate amount at any one time not in excess of $1,000,000, and (ii) Taxes contested in good faith by proper proceedings which stay the imposition of any Lien resulting from the non-payment thereof and with respect to which adequate reserves have been set aside for the payment thereof in accordance with GAAP.

 

(d)         Preservation of Existence, Etc.  Except as expressly permitted by Section 7.02(c), maintain and preserve, and cause each of its Subsidiaries to maintain and preserve, its existence, rights and privileges, and become or remain, and cause each of its Subsidiaries to become or remain, duly qualified and in good standing in each jurisdiction in which the character of the properties owned or leased by it or in which the transaction of its business makes such qualification necessary, except, in each case, to the extent that the failure to be so qualified and/or in good standing could not reasonably be expected to have a Material Adverse Effect.

 

(e)         Keeping of Records and Books of Account.  Keep, and cause each of its Subsidiaries to keep, adequate records and books of account, with complete entries made to permit the preparation of financial statements in accordance with GAAP.

 

(f)          Inspection Rights.  Permit, and cause each of its Subsidiaries to permit, the agents, advisors and representatives of any Agent at any time and from time to time during normal business hours and upon reasonable prior notice (in any case not less than two (2) Business Days), at the expense of the Borrowers, to examine and make copies of and abstracts from its records and books of account, and make copies thereof or abstracts therefrom and to discuss its affairs, to visit and inspect its properties, to verify materials, leases, notes, accounts receivable, deposit accounts and its other assets, to conduct audits, physical counts, valuations, appraisals or examinations and to discuss its affairs, finances and accounts with any of its directors, officers, managerial employees, independent accountants or any of its other representatives; provided, that neither the Agents nor any of their representatives shall be permitted to inspect, examine, make copies of, or summarize, any information that is subject to attorney-client privilege, confidentiality obligations or is a trade secret; provided, further, that such examinations, visits, inspections and appraisals shall be conducted at the same time and limited to once per 12 month period unless an Event of Default is continuing; provided, further, that the Loan parties shall not be required to reimburse the Agents for more than one (1) such visit, audit, physical count or valuation during any calendar year unless an Event of Default has occurred and is continuing.  In furtherance of the foregoing, each Loan Party hereby authorizes its independent accountants, and the independent accountants of each of its Subsidiaries, to discuss the affairs, finances and accounts of such Person (independently or together with representatives of such Person) with the agents and representatives of any Agent in accordance with this Section 7.01(f).

 

(g)         Maintenance of Properties, Etc.  Maintain and preserve, and cause each of its Subsidiaries to maintain and preserve, all of its properties which are necessary or useful in the proper conduct of its business in good working order and condition, ordinary wear and tear and casualty and condemnation excepted, and comply, and cause each of its Subsidiaries to comply, at all times with the provisions of all leases to which it is a party as lessee or under which it occupies property, so as to prevent any loss or forfeiture thereof or thereunder, except to the extent the failure to so maintain and preserve or so comply could not reasonably be expected to have a Material Adverse Effect.

 

(h)         Maintenance of Insurance.  Maintain, and cause each of its Subsidiaries to maintain, insurance with responsible and reputable insurance companies or associations (including, without limitation, comprehensive general liability, hazard, flood,  rent, worker’s compensation and business interruption insurance) with respect to the Collateral and its other properties (including all real property leased or owned by it) and business, in such amounts and covering such risks as is (i) carried generally in accordance with sound business practice by companies in similar businesses similarly situated, (ii) required by any Requirements of Law, (iii) required by any Material Contract and (iv) in any event in amount, adequacy and scope reasonably satisfactory to the Collateral Agent.  All policies covering the Collateral are to be made payable to the Collateral Agent for the benefit of the Agents and the Lenders, as their interests may appear, in case of loss, under a standard non contributory “lender” or “secured party” clause and are to contain such other provisions as the Collateral Agent may reasonably require to fully protect the Lenders’ interest in the Collateral and to any payments to be made under such policies.  All certificates of insurance are to be delivered to the Collateral Agent and the policies are to be premium prepaid, with the loss payable and additional insured endorsement in favor of the Collateral Agent for the benefit of the Agents and the Lenders, as their respective interests may appear, and such other Persons as the Collateral Agent may designate from time to time, and shall provide for not less than 30 days’ (10 days’ in the case of non-payment) prior written notice to the Collateral Agent of the exercise of any right of cancellation.  If any Loan Party or any of its Subsidiaries fails to maintain such insurance, the Collateral Agent may arrange for such insurance, but at the Borrowers’ expense and without any responsibility on the Collateral Agent’s part for obtaining the insurance, the solvency of the insurance companies, the adequacy of the coverage, or the collection of claims.  Upon the occurrence and during the continuance of an Event of Default, the Collateral Agent shall have the sole right, in the name of the Lenders, any Loan Party and its Subsidiaries, to file claims under any insurance policies, to receive, receipt and give acquittance for any payments that may be payable thereunder, and to execute any and all endorsements, receipts, releases, assignments, reassignments or other documents that may be necessary to effect the collection, compromise or settlement of any claims under any such insurance policies.

 

(i)          Obtaining of Permits, Etc.  Obtain, maintain and preserve, and cause each of its Subsidiaries to obtain, maintain and preserve, and take all necessary action to timely renew, all permits, licenses, authorizations, approvals, entitlements, accreditations and other clearances necessary to use and occupy such properties and assets (including the Loan Party Systems), in each case that are necessary or useful in the proper conduct of its business, in each case, except to the extent the failure to obtain, maintain, preserve or take such action could not reasonably be expected to have a Material Adverse Effect.

 

(j)           Environmental.

 

(i)          Keep the Collateral free of any Environmental Lien, except as could not reasonably be expected to have a Material Adverse Effect;

 

(ii)        Obtain, maintain and preserve, and cause each of its Subsidiaries to obtain, maintain and preserve, and take all necessary action to timely renew, all Environmental Permits that are necessary for the conduct of its business, and comply, and cause each of its Subsidiaries to comply, with all Environmental Laws and Environmental Permits, except, in each case, to the extent the failure to so obtain, maintain, preserve or comply could not reasonably be expected to have a Material Adverse Effect;

 

(iii)        Take all commercially reasonable steps to prevent any Release or threatened Release of Hazardous Materials in violation of any Environmental Law or Environmental Permit at, in, on, under or from any property owned, leased or operated by any Loan Party or its Subsidiaries that, in each case, could reasonably be expected to result in a Material Adverse Effect;

 

(iv)        Provide the Collateral Agent with written notice within ten (10) Business Days of any of the following:  (A) a Loan Party’s obtaining knowledge of any Release of a Hazardous Material or environmental condition at, in, on, under or from any property currently or formerly owned, leased or operated by any Loan Party, Subsidiary or predecessor in interest or any Loan Party’s violation of Environmental Law or Environmental Permit that in any case could reasonably be expected to result in a Material Adverse Effect; (B) any Loan Party’s receipt of written notice that an Environmental Lien has been filed against any Collateral that could reasonably be excepted to result in a Material Adverse Effect; or (C) any Loan Pary’s obtaining actual knowledge of an Environmental Claim made in writing or Environmental Liabilities, in each case, that could reasonably be expected to result in a Material Adverse Effect; and provide such reports, documents and information as the Collateral Agent may reasonably request from time to time with respect to any of the foregoing.

 

(k)         Fiscal Year.  Cause the Fiscal Year of the Parent and its Subsidiaries to end on March 31 of each calendar year unless the Agents consent (such consent not to be unreasonably withheld, conditioned or delayed) to a change in such Fiscal Year (and appropriate related changes to this Agreement).

 

(l)           [Reserved].

 

(m)       After Acquired Real Property.  Upon the acquisition by it or any of its Subsidiaries after the date hereof of any fee-owned interest in any real property (wherever located) (each such interest being a “New Facility”) with a Current Value (as defined below) in excess of $5,000,000, immediately so notify the Collateral Agent, setting forth with specificity a description of the interest acquired, the location of the real property, any structures or improvements thereon and either an appraisal or such Loan Party’s good-faith estimate of the current value of such real property (for purposes of this Section, the “Current Value”).  The Collateral Agent shall notify such Loan Party whether it intends to require a Mortgage (and any other Real Property Deliverables) with respect to such New Facility.  Upon receipt of such notice requesting a Mortgage (and any other Real Property Deliverables), the Person that has acquired such New Facility shall furnish the same to the Collateral Agent within sixty (60) days (or such longer period as the Collateral Agent may agree to in its reasonable discretion).  The Borrowers shall pay all fees and expenses, including, without limitation, reasonable attorneys’ fees and expenses, and all title insurance charges and premiums, in connection with each Loan Party’s obligations under this Section 7.01(m).

 

(n)          Anti-Corruption Laws; Anti-Money Laundering Laws; Sanctions.

 

(i)         Maintain, and cause each of its Subsidiaries to maintain, policies and procedures designed to ensure compliance by each Loan Party, its Subsidiaries and their respective directors, officers, employees and agents with all applicable Anti-Corruption Laws, Anti-Money Laundering Laws, and Sanctions.

 

(ii)         Comply, and cause each of its Subsidiaries to comply, with all applicable Anti-Money Laundering Laws in all material respects and with all applicable Anti-Corruption Laws and Sanctions in all respects.

 

(iii)         Promptly notify the Administrative Agent upon obtaining knowledge of any action, suit, proceeding, or investigation of any Loan Party or Subsidiary thereof by any Governmental Authority that enforces Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions.

 

(iv)        The covenants in paragraph (i) through (iii) above shall be given by and apply to any Loan Party and any Subsidiary thereof only to the extent that giving, complying with or receiving the benefit of (as applicable) such covenants do not result in any violation of any Anti-Boycott Regulation.

 

(v)        In relation to each Lender that notifies the Administrative Agent to this effect, the covenants in paragraph (i) through (iii) above shall only apply for the benefit of that Lender to the extent that it would not result in any violation of, conflict with or liability under any Anti-Boycott Regulations.

 

(vi)        In order to comply with the “know your customer” requirements of Anti-Money Laundering Laws, promptly provide to the Administrative Agent or any Lender upon its reasonable request from time to time (A) information relating to individuals and entities affiliated with any Loan Party that maintain a business relationship with the Administrative Agent or any Lender, and (B) such identifying information and documentation as is required to verify the identity of such Loan Party.

 

(o)         Lender Meetings.  Upon the reasonable advance request of any Agent or the Required Lenders, participate in a meeting with the Agents and the Lenders at the Borrowers’ corporate offices (or at such other location as may be agreed to by the Administrative Borrower and such Agent or the Required Lenders) at such time as may be agreed to by the Administrative Borrower and such Agent or the Required Lenders to discuss the financial condition and results of operation of the Parent and its Subsidiaries for the most recently ended fiscal quarter, and such other matters as the Agent or Required Lenders may request.

 

(p)         Board Information Rights.  The Administrative Agent, on behalf of the Lenders, shall be entitled to receive all information provided to the members of the Board of Directors or any similar group performing an executive oversight or similar function (or any relevant committee thereof) of the Parent (or its direct or indirect ultimate parent holding company) and any of its Subsidiaries in anticipation of or at such meeting (regular or special and whether telephonic or otherwise), in addition to copies of the records of the proceedings or minutes of such meeting, when provided to the members, and the Lenders shall keep such materials and information confidential in accordance with Section 12.19 of this Agreement.  The Loan Parties shall not be obligated to provide the Administrative Agent or any Lender with any information (in the case of clauses (x) and (y), on the advice of counsel) (x) that is subject to any attorney-client privilege, (y) if the Administrative Borrower determines in good faith that the delivery would reasonably result in a breach of confidentiality obligations to third parties notwithstanding the confidentiality obligations of the Administrative Agent under this Agreement or (z) that relates to the strategy, negotiating positions or similar matters relating the relationship of the Parent and/or any of its Subsidiaries or Affiliates, on the one hand, with the Administrative Agent, the Lenders and/or any of their respective Affiliates (in each case, in the capacity as a holder of the Indebtedness pursuant to any Loans), on the other hand; provided, that the Loan Parties shall endeavor in good faith to permit the Administrative Agent to receive materials contemplated by this Section 7.01(p) to the extent that any materials or other items may be redacted in order to address matters described in the foregoing clauses (x), (y) and (z).