Form 8-K
8-K — COMTECH TELECOMMUNICATIONS CORP /DE/
Accession: 0001104659-26-073803
Filed: 2026-06-15
Period: 2026-06-14
CIK: 0000023197
SIC: 3663 (RADIO & TV BROADCASTING & COMMUNICATIONS EQUIPMENT)
Item: Entry into a Material Definitive Agreement
Item: Termination of a Material Definitive Agreement
Item: Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant
Item: Unregistered Sales of Equity Securities
Item: Material Modifications to Rights of Security Holders
Item: Regulation FD Disclosure
Item: Financial Statements and Exhibits
Documents
8-K — tm2617923d1_8k.htm (Primary)
EX-2.1 — EXHIBIT 2.1 (tm2617923d1_ex2-1.htm)
EX-4.1 — EXHIBIT 4.1 (tm2617923d1_ex4-1.htm)
EX-4.2 — EXHIBIT 4.2 (tm2617923d1_ex4-2.htm)
EX-10.1 — EXHIBIT 10.1 (tm2617923d1_ex10-1.htm)
EX-10.2 — EXHIBIT 10.2 (tm2617923d1_ex10-2.htm)
EX-10.3 — EXHIBIT 10.3 (tm2617923d1_ex10-3.htm)
EX-10.4 — EXHIBIT 10.4 (tm2617923d1_ex10-4.htm)
EX-10.5 — EXHIBIT 10.5 (tm2617923d1_ex10-5.htm)
EX-10.6 — EXHIBIT 10.6 (tm2617923d1_ex10-6.htm)
EX-10.7 — EXHIBIT 10.7 (tm2617923d1_ex10-7.htm)
EX-99.1 — EXHIBIT 99.1 (tm2617923d1_ex99-1.htm)
GRAPHIC (logo.jpg)
GRAPHIC (tm2617923d1_ex4-1img001.jpg)
GRAPHIC (tm2617923d1_ex4-2img01.jpg)
GRAPHIC (tm2617923d1_exhibit-cimg001.jpg)
GRAPHIC (tm2617923d1_exhibit-cimg002.jpg)
GRAPHIC (tm2617923d1_exhibit-cimg003.jpg)
XML — IDEA: XBRL DOCUMENT (R1.htm)
8-K — FORM 8-K
8-K (Primary)
Filename: tm2617923d1_8k.htm · Sequence: 1
false
0000023197
Comtech Telecommunications Corp.
0000023197
2026-06-14
2026-06-14
iso4217:USD
xbrli:shares
iso4217:USD
xbrli:shares
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
June 14, 2026
0-7928
Date of Report
(Date of earliest event reported)
Commission File Number
Comtech Telecommunications Corp.
(Exact name of registrant as specified in its charter)
Delaware
11-2139466
(State or other jurisdiction of
incorporation or organization)
(I.R.S. Employer Identification Number)
305 N 54th Street,
Chandler, Arizona 85226
(Address of Principal Executive Offices) (Zip Code)
(480) 333-2200
(Registrant’s telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ Written communications
pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨ Soliciting material
pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨ Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨ Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
Title of each class
Trading Symbol(s)
Name of exchange on which registered
Common Stock, par value $0.10 per share
CMTL
Nasdaq Stock Market LLC
Indicate by check mark whether the registrant is an emerging growth
company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange
Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ¨
If an emerging growth company, indicate
by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial
accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Item 1.01 Entry
into a Material Definitive Agreement.
Securities Purchase
Agreement
Overview
On June 14, 2026, Comtech Telecommunications Corp. (“Comtech”
or the “Company”) entered into a Securities Purchase Agreement (the “Purchase Agreement”), by and among Comtech,
certain direct or indirect subsidiaries of Comtech named therein and Wavestream Corporation (the “Buyer”), a Delaware corporation
and an affiliate of Gilat Satellite Networks Ltd (the “Buyer Parent”), a company incorporated under the laws of the State
of Israel. The Purchase Agreement provides that, on the terms and subject to the conditions set forth therein, the Buyer will purchase
from Comtech and TeleCommunication Systems, Inc., a subsidiary of Comtech (collectively, the “Sellers”) the ownership interests
of certain Comtech subsidiaries engaged in Comtech’s satellite and space communications business (such business, the “Business”
and such entities, including their respective subsidiaries, the “Acquired Entities”, and together with the Sellers, the “Comtech
Parties”) for a base purchase price in cash of $157,500,000, subject to customary adjustments
for the Acquired Entities’ cash, indebtedness, net working capital and transaction expenses as of the closing (the “Closing”).
$10,000,000 of the purchase price (such amount, the “Advance Payment”) was payable upon execution of the Purchase Agreement.
The board of directors of Comtech (the “Board”) (a) approved
and declared advisable the Purchase Agreement and the transactions contemplated by the Purchase Agreement (the “Transactions”)
on the terms and subject to the conditions set forth therein, and (b) declared and determined that it is in the best interests of the
Company and the stockholders of the Company that the Company enter into the Purchase Agreement and consummate the Transactions on the
terms and subject to the conditions set forth therein. The consummation of the Transactions does not require the approval of the Company’s
stockholders.
Closing Conditions
The respective obligations of the Comtech Parties,
on the one hand, and the Buyer, on the other hand, to consummate the Transactions are subject to customary closing conditions, including:
·
the accuracy of each party’s representations and warranties, subject to certain materiality standards set forth in the Purchase Agreement;
·
the performance by each party of its covenants and agreements in all material respects under the Purchase Agreement;
·
the waiting period applicable to the Transactions under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, having expired or been terminated;
·
the absence of any law or order prohibiting or making illegal the consummation of the Transactions;
· certain waiting periods required for the consummation
of the Transactions under certain US national securities laws or certain foreign investment laws and regulations have expired or been
terminated, and certain consents, approvals, clearances, actions or non-actions (as applicable) required for the consummation of the Transactions
required under such laws and regulations, including the CFIUS Approval (as defined in the Purchase Agreement), have been obtained, and
any agreement with any government authority not to consummate the Transactions have been expired or been terminated; and
· the delivery by each party of certain
transaction documents required to be delivered by such party.
The Buyer’s obligation to consummate the
Transactions is also conditioned upon:
· there not having occurred a material adverse effect relating to the
Acquired Entities or the Business; and
· Sellers delivering to Buyer (x) the audited
combined carve-out financial statements of the Acquired Entities as of and for the years ended July 31, 2026 and 2025, or if the
Closing occurs prior to October 31, 2026, as of and for the years July 31, 2025 and 2024 (the “Audited Financial Statements”),
and (y) the unaudited combined carve-out financial statements of the Acquired Entities as of, or for the periods ended on, the latest
fiscal quarter ending prior to the Closing (together with the comparative statements for the corresponding interim periods in the prior
year).
Representations and Warranties; Covenants
The Purchase Agreement contains customary representations and warranties
made by each party and customary covenants, including, among others, covenants by Comtech regarding (i) the conduct of the Business prior
to the Closing, (ii) the novation of certain government contracts related to the Business by Comtech or its applicable subsidiaries to
the Acquired Entities and certain other pre-closing restructuring, (iii) certain non-competition and non-solicitation covenants that restrict
the Sellers and their respective affiliates from competing with the Business or soliciting the employees of the Acquired Entities, for
a period ending on the second anniversary of the Closing, subject to certain exceptions, and (iv) change of Comtech and its applicable
subsidiaries’ names to not contain “Comtech” or other names or marks that use or contain “Comtech” no later
than 6 months following the Closing.
Except in the case of fraud, the representations and warranties in
the Purchase Agreement generally do not survive Closing, and the sole recourse of Buyer with respect to breaches of representations and
warranties of the Sellers is recovery under a buyer-side representation and warranty insurance policy obtained by Buyer in connection
with the Transactions (the “Buyer Insurance Policy”), provided that the Buyer and certain of its related parties (the “Buyer
Indemnified Parties”) may seek indemnification from Sellers for losses resulting from any inaccuracy in or breach of representations
and warranties of the Sellers up to an amount equal to 50% of the deductible under the Buyer Insurance Policy to the extent such deductible
has not been met.
No Solicitation of Alternative Transactions
The Comtech Parties are also subject to customary “no-shop” restrictions
on their ability (and the ability of its subsidiaries and representatives) to knowingly encourage, initiate or engage in discussions or
negotiations with any other person concerning any sale of the equity securities or assets of (including by merger or consolidation), any
of the Acquired Entities or its subsidiaries, or any of the contracts or assets to be transferred pursuant to the Transactions, and will
(and will instruct their respective affiliates and representatives to) immediately cease and terminate any discussions or negotiations
with any other third party that are ongoing with respect to any such acquisition transaction.
Indemnification
In addition, subject to certain limitations, Sellers have agreed to indemnify the Buyer Indemnified Parties for losses resulting from
or arising out of: certain tax matters; certain subsidiaries of the Company that are currently in the process of being liquidated and
wound up; and certain other specified matters.
Retention of Advance Payment
Comtech will have the right to retain the Advance
Payment in the event that the Purchase Agreement is terminated, if at the time of such termination (i) all closing conditions have
been satisfied or waived, other than certain conditions relating to regulatory approval and clearance, and any conditions by their nature
are to be satisfied at the Closing, and (ii) the Sellers are not in material breach of the Purchase Agreement. If the Purchase Agreement
is so terminated, the retention of the Advance Payment will be the sole and exclusive remedy of Comtech and its related parties against
the Buyer and its affiliates for any damages suffered in connection with the Purchase Agreement and the Transactions, except with respect
to a knowing and intentional breach of the Purchase Agreement by the Buyer.
Specific Performance
The Purchase Agreement also provides that each
party may bring an action to specifically enforce the obligations under the Purchase Agreement, including the obligation to consummate
the Transactions if the conditions set forth in the Purchase Agreement are satisfied.
More Information
The foregoing description of the Purchase Agreement
does not purport to be complete and is qualified in its entirety by reference to the full text of the Purchase Agreement, which is filed
as Exhibit 2.1 to this Current Report on Form 8-K and incorporated herein by reference. A copy of the Purchase Agreement has
been included to provide Comtech’s stockholders and other security holders with information regarding its terms and is not intended
to provide any factual information about Comtech, the Buyer or their respective affiliates. The representations, warranties and covenants
contained in the Purchase Agreement:
· have been made solely for the purposes of the
Purchase Agreement and as of specific dates;
· were made solely for the benefit of the parties
to the Purchase Agreement;
· are not intended as statements of fact to be
relied upon by Comtech’s stockholders or other security holders, but rather as a way of allocating the risk between the parties
in the event the statements therein prove to be inaccurate;
· have been modified or qualified by certain confidential
disclosures that were made between the parties in connection with the negotiation of the Purchase Agreement, which disclosures are not
reflected in the Purchase Agreement itself;
· may no longer be true as of a given date; and
· may apply standards of materiality in a way that
is different from what may be viewed as material by Comtech’s stockholders or other security holders.
Comtech’s stockholders and other security
holders should not rely on the representations, warranties and covenants or any descriptions thereof as characterizations of the actual
state of facts or condition of Comtech, the Buyer or their respective affiliates. Moreover, information concerning the subject matter
of the representations and warranties may change after the date of the Purchase Agreement, which subsequent information may or may not
be fully reflected in Comtech’s public disclosures. Comtech acknowledges that, notwithstanding the inclusion of the foregoing cautionary
statements, it is responsible for considering whether additional specific disclosures of material information regarding material contractual
provisions are required to make the statements in this Current Report on Form 8-K not misleading. The Purchase Agreement should not
be read alone but should instead be read in conjunction with the other information regarding the Purchase Agreement, the Transactions,
the Company, its affiliates and their respective businesses in Comtech’s Annual Report on Form 10-K, Quarterly Reports on Form 10-Q,
Current Reports on Form 8-K, and other filings that Comtech makes from time to time with the SEC.
In connection with the Purchase Agreement, the parties will enter into
certain other agreements, including (i) a transition services agreement, which provides for transitional services customary for transactions
of this type, (ii) a parent guarantee by Buyer Parent, in favor of Sellers with respect to the performance by Buyer of its obligations
under the Purchase Agreement, (iii) an escrow agreement with HSBC Bank USA, National Association, pursuant to which $3,000,000 of the
purchase price will be held in escrow to fund potential negative adjustments to the purchase price and (iv) an IP and IT assignment agreement
in connection with the pre-closing restructuring by Comtech or its applicable subsidiaries.
The foregoing description of the Purchase Agreement
is only a summary, does not purport to be complete, and is qualified in its entirety by reference to the full text of the Purchase Agreement,
which is attached hereto as Exhibit 2.1 and incorporated herein by reference.
Amended Credit Agreement
On June 14, 2026, Comtech entered into the Consent and Amendment No.
4 to Credit Agreement (the “Senior Amendment No. 4”) with the lenders party thereto, TCW Asset Management Company LLC, as
administrative agent (the “Administrative Agent”), and Wingspire Capital LLC, as revolving agent (in such capacity, the “Revolving
Agent” and, together with the Administrative Agent, the “Agents”) which amends that certain Credit Agreement, dated
as of June 17, 2024, among the Company, the lenders party thereto and the Agents (as amended by that certain Waiver and Amendment No.
1 to Credit Agreement, dated as of October 17, 2024, that certain Waiver and Amendment No. 2 to Credit Agreement, dated as of March 3,
2025, and that certain Amendment No. 3 to Credit Agreement, dated July 21, 2025, the “Existing Credit Agreement” and, as amended
by the Senior Amendment No. 4, the “Amended Credit Agreement”).
Under the Senior Amendment No. 4, the Agents and each lender party
thereto (a) acknowledge that the form of, and the terms and conditions set forth in, the Purchase Agreement and certain ancillary agreements
related to the Transactions are acceptable to them, (b) consent to the consummation of the Transactions, (c) acknowledge and agree that
the Transactions shall not result in a Change of Control (as defined in the Existing Credit Agreement), and (d) consent to Comtech Satellite
Network Technologies Corp.’s execution and delivery of, and its performance of its obligations under an exclusive technology license
agreement. Senior Amendment No. 4 further amends the Existing Credit Agreement to, among other things, (i) suspend, until the four-quarter
period ending July 31, 2027, testing of the fixed charge coverage ratio, the net leverage ratio and the minimum EBITDA covenants in the
Amended Credit Agreement, (ii) clarify that the Advance Payment will not be required to be applied to prepay the applicable obligations
in accordance with the terms of the Amended Credit Agreement until the consummation of the Transactions, (iii) provide that the Maximum
Revolver Amount (as defined in the Amended Credit Agreement) shall not be reduced to an amount less than $27,250,000 as a result of the
prepayment of the Term Loan in accordance with the terms of the Amended Credit Agreement, (iv) modify certain reporting covenants thereunder
and (v) fix the margin applicable to term loans through the maturity of the Amended Credit Agreement at 9.5% for term loans bearing interest
based on the base rate and 10.5% for term loans bearing interest based on SOFR.
The foregoing description of the Senior Amendment No. 4 and the Amended
Credit Agreement is not complete and is qualified in its entirety by the actual terms of the Senior Amendment No. 4, a copy of which is
attached to this Report as Exhibit 10.1 and is incorporated herein by reference.
Amended Subordinated Credit Agreement
On June 14, 2026, the Company entered into the Amendment No. 3 to Subordinated
Credit Agreement (the “Subordinated Amendment No. 3” and, together with Senior Amendment No. 4, the “Amendments”)
with the guarantors party thereto, the lenders party thereto and U.S. Bank Trust Company, National Association, as agent (the “Subordinated
Agent”), which amends that certain Subordinated Credit Agreement, dated as of October 17, 2024, among the Company, the guarantors
party thereto, the lenders party thereto and the Subordinated Agent (as amended by that certain Waiver and Amendment No. 1 to Subordinated
Credit Agreement, dated as of March 3, 2025, and that certain Amendment No. 2 to Subordinated Credit Agreement, dated as of July 21, 2025,
the “Existing Subordinated Credit Agreement” and, as amended by the Subordinated Amendment No. 3, the “Amended Subordinated
Credit Agreement;” the Amended Subordinated Credit Agreement, together with the Amended Credit Agreement, the “Credit Agreements”).
Under the Subordinated Amendment No. 3, the Subordinated Agent (a)
acknowledges that the form of, and the terms and conditions set forth in, the Purchase Agreement and certain ancillary agreements related
to the Transactions are acceptable to it, (b) consents to the consummation of the Transactions, and (c) acknowledges and agrees that the
Transactions shall not result in a Change of Control (as defined in the Existing Subordinated Credit Agreement). The Subordinated Amendment
No. 3 further amends the Existing Subordinated Credit Agreement to, among other things, (i) suspend, until the four-quarter period ending
July 31, 2027, testing of the fixed charge coverage ratio, the net leverage ratio and the minimum EBITDA covenants in the Amended Subordinated
Credit Agreement, (ii) modify the calculation of the make-whole premium applicable to certain tranches of the subordinated term loans
(as described in further detail below), and (iii) clarify that the Advance Payment will not be required to be applied to prepay the applicable
obligations in accordance with the terms of the Amended Subordinated Credit Agreement until the consummation of the Transactions.
The Amended Subordinated Credit Agreement provides that, with respect
to the subordinated term loans that are subject to make-whole amounts (which such subordinated term loans have an aggregate outstanding
principal amount of $65,000,000), the make-whole amount will be equal to (i) before and on April 1, 2027, the principal repayment amount
multiplied by 50.0%, plus, starting on March 3, 2027, interest accrued on the principal amount outstanding at the Make-Whole Interest
Rate (as defined below) and calculated as of any such date of determination; and (ii) after April 1, 2027, the principal repayment amount
multiplied by 75.0% plus, starting on April 1, 2027, interest accrued on the principal amount outstanding at the Make-Whole Interest Rate
(as defined below) and calculated as of any such date of determination. The Make-Whole Interest Rate is a rate equal to 16.0% per annum,
which is increased by 2.0% per annum upon the occurrence and during the continuation of an event of default under the Amended Subordinated
Credit Agreement.
The foregoing description of the Subordinated
Amendment No. 3 and the Amended Subordinated Credit Agreement is not complete and is qualified in its entirety by the actual terms of
the Subordinated Amendment No. 3, a copy of which is attached to this Report as Exhibit 10.2, and is incorporated herein by reference.
In connection with the Subordinated Amendment No. 3, the Company issued,
in a transaction exempt from registration under the Securities Act of 1933, as amended, warrants (the “Lender Warrants” and
together with the Preferred Warrants (as defined below), the “Warrants”) to certain lenders under the Amended Subordinated
Credit Agreement (the “Warrant Holders”), which entitles the Warrant Holders to purchase from the Company up to 625,000 shares
(the “Warrant Shares”) of the Company’s common stock, par value $0.10 per share (the “Common Stock”), at
any time and from time to time from the Vesting Date (as defined below) and on or prior to the close of business on 5:00 p.m., New York,
NY time, on April 17, 2032, at an exercise price of $0.10 per share, subject to certain adjustments. The Lender Warrants and the Warrant
Shares will vest and become exercisable on October 17, 2026 (the “Vesting Date”); provided, however, that the Lender Warrants
will not vest, and will be automatically and irrevocably forfeited and cancelled for no consideration, if, prior to the Vesting Date,
the Closing Date Term Loans (as defined in the Amended Subordinated Credit Agreement) have been repaid in full, including (x) all accrued
and unpaid interest on the Closing Date Term Loans and (y) the applicable make-whole amount payable in connection with such payment. In
connection with the Lender Warrants, the Company entered into an amendment (the “Registration Rights Agreement Amendment”)
to that certain Registration Rights Agreement, dated as of March 3, 2025 (the “Existing Registration Rights Agreement”), by
and among the Company and the investors parties named therein, to grant Warrant Holders certain customary registration rights with respect
to the shares of Common Stock issuable upon exercise of the Lender Warrants.
Also, in connection with the Subordinated
Amendment No. 3, the Company entered into a director agreement (the “Director Agreement”) with Magnetar Financial LLC,
as representative of the lenders under the Amended Subordinated Credit Agreement (the “Representative”), pursuant to
which the Company has agreed to nominate to the Board one individual designated by the Representative. This Director Agreement,
including the obligation to nominate such individual to the Board, will continue until such time as the Investors (as defined below)
no longer own, in the aggregate, an amount of Series B-3 Convertible Preferred Stock, or, following the completion of the Exchange,
Series B-4 Convertible Preferred Stock (each as defined below) with an aggregate liquidation preference of such preferred stock
equal to at least $20,000,000.
The foregoing description of the Registration Rights Agreement Amendment,
the Director Agreement and the Lender Warrants is not complete and is qualified in its entirety by the actual terms of the Registration
Rights Agreement Amendment, the Director Agreement and the form of Lender Warrant, copies of which are attached to this Report as Exhibits
10.3, 10.4 and 4.1, and are incorporated herein by reference.
Changes to Convertible Preferred Stock
In connection with the transactions described above, on June 14, 2026,
Comtech and certain affiliates and related funds of Magnetar Capital LLC (“Magnetar”) and White Hat Capital Partners LP (“White
Hat” and, together with Magnetar, the “Investors”) agreed to, among other things, (i) consent to the Purchase Agreement,
certain ancillary agreements related to the Transactions, and the consummation of the Transactions, (ii) waive any rights to repayment
or repurchase of shares of Series B-3 Convertible Preferred Stock (as defined below) owned or controlled by such Investor or its related
parties in connection with the Transactions, and (iii) change certain terms of the Company's Series B-3 Convertible Preferred Stock, par
value $0.10 per share (the "Series B-3 Convertible Preferred Stock"). The changes provide that (i) the Investors may not exercise
their optional repurchase right until October 31, 2029, except upon consummation of certain qualified asset sales by Comtech or its subsidiaries
or upon a Change of Control (as defined in the Series B-4 Certificate of Designations), and (ii) the Investors may not elect to receive
dividends in cash earlier than October 31, 2028. White Hat Capital Partners LP, one of the Investors, is affiliated with Mark Quinlan,
a member of the Company's Board of Directors. To effect the changes described above, the Company and the Investors entered into an Exchange
Agreement (the “Exchange Agreement”) pursuant to which the Investors will exchange (the “Exchange”), in a transaction
exempt from registration under the Securities Act of 1933, as amended, all of the 178,180.34 shares of Series B-3 Convertible Preferred
Stock outstanding for 178,180.34 shares of the Company’s newly issued Series B-4 Convertible Preferred Stock, par value $0.10 per
share, with an initial liquidation preference equal to the per share liquidation preference of the Series B-3 Convertible Preferred Stock
as of the date of issuance (collectively, the “Series B-4 Convertible Preferred Stock”). Consummation of the Exchange and
issuance of shares of Series B-4 Convertible Preferred Stock are conditioned upon the consummation of the Transactions and are expected
to occur on the date of the Closing. The Company will not receive any cash proceeds from the exchange and issuance of Series B-4 Convertible
Preferred Stock.
In connection with the Exchange Agreement, the
Company entered into Voting Agreements, substantially consistent with existing agreements relating to the Series B-3 Convertible
Preferred Stock, with each of the Investors (together, the “Voting Agreements”), pursuant to which the Investors agreed, among
other things, subject to the qualifications and exceptions set forth in the Voting Agreements, to vote their shares of Series B-4
Convertible Preferred Stock or shares issued upon conversion of the Series B-4 Convertible Preferred Stock that exceed, in the case
of Magnetar, 16.50% of the Company’s outstanding voting power and, in the case of White Hat, 3.4999% of the Company’s outstanding
voting power as of January 22, 2024, in the same proportion as the vote of all holders (excluding the Investors) of the Series B-4
Convertible Preferred Stock or the Common Stock, as applicable. The Voting Agreements will automatically take effect as of the Closing,
and the existing voting agreements relating to the Series B-3 Convertible Preferred Stock will be automatically terminated.
In connection with the closing of the Exchange Agreement, the Company
also entered into a Registration Rights Agreement, substantially consistent with the existing agreement relating to the Series B-3 Convertible
Preferred Stock, with the Investors (the “Registration Rights Agreement”), pursuant to which the Company granted the Investors
certain customary registration rights with respect to the shares of Common Stock issued and issuable upon conversion of Series B-4 Convertible
Preferred Stock and upon exercise of Warrants, including the warrants issued in substitution for the Series B-4 Convertible Preferred
Stock in certain circumstances (described below). The Registration Rights Agreement will become effective automatically as of the Closing
and the Existing Registration Rights Agreement will be automatically terminated.
The foregoing description of the Exchange Agreement,
Voting Agreements and Registration Rights Agreement do not purport to be complete and are qualified in their entirety by reference to
the Exchange Agreement, form of Voting Agreement and Registration Rights Agreement, which are attached hereto as Exhibits 10.5, 10.6 and
10.7, respectively, and are incorporated by reference herein.
Upon closing of the Exchange, the Company will
issue an aggregate of 178,180.34 shares of Series B-4 Convertible Preferred Stock to the Investors pursuant to the Certificate of
Designations of the Series B-4 Convertible Preferred Stock (the “Series B-4 Certificate of Designation”), to be
filed with the Secretary of State of Delaware in accordance with the General Corporation Law of the State of Delaware (the “DGCL”).
Except for the changes described above, the powers, preferences and rights of the Series B-4 Convertible Preferred Stock are substantially
similar as those of the Series B-3 Convertible Preferred Stock, including, without limitation, that the shares of Series B-4
Convertible Preferred Stock are convertible into shares of Common Stock at a conversion price of $7.99 per share of Common Stock (the
same as the conversion price of the Series B-3 Convertible Preferred Stock, and subject to the same adjustments).
The foregoing description of the Series B-4
Convertible Preferred Stock does not purport to be complete and is qualified in its entirety by reference to the form of Certificate of
Designations of the Series B-4 Convertible Preferred Stock, which is included in the Exchange Agreement that is filed as Exhibit 10.5
to this Current Report on Form 8-K and incorporated herein by reference, and to the final Certificate of Designations of the Series B-4
Convertible Preferred Stock, which will be filed with a subsequent Current Report on Form 8-K.
Like the Series B-3 Convertible Preferred Stock, the Series B-4 Convertible
Preferred Stock will provide for repurchase of the Series B-4 Convertible Preferred Stock at the Company’s option or the holders’
options upon the occurrence of specified asset sales. Upon the occurrence of such repurchases by an Investor or the Company, the Company
will issue to each Investor whose shares of Series B-4 Convertible Preferred Stock were repurchased a warrant to purchase Common Stock
(each, a “Preferred Warrant”, collectively, the “Preferred Warrants”). A Preferred Warrant will represent the
right to acquire Common Stock, as further described in the Exchange Agreement, for a term of five years and six months from the issuance
of such Warrant, in the amount of (x) the aggregate Liquidation Preference of shares of Series B-4 Convertible Preferred Stock purchased
by the Company divided by (y) the Conversion Price as of such Optional Repurchase Date or the Optional Call Date, subject to adjustments
set forth in the Warrant, and with an initial exercise price equal to the Conversion Price as of such Optional Repurchase Date or the
Optional Call Date, as applicable, in each case, subject to adjustments substantially similar to the Series B-4 Convertible Preferred
Stock. Capitalized terms used but not defined in this paragraph shall have the meanings ascribed to them in the Exchange Agreement.
The foregoing description of the Preferred Warrants
is not complete and is qualified in its entirety by reference to the form of the Preferred Warrant, which is attached hereto as Exhibit 4.2
and is incorporated herein by reference.
Following completion of the Exchange and promptly
after the related cancellation of all the outstanding shares of Series B-3 Convertible Preferred Stock, the Company will file a Certificate
of Elimination of Series B-3 Convertible Preferred Stock of the Company with the Secretary of State of Delaware as part of the Company’s
Certificate of Incorporation in accordance with the DGCL.
This Current Report on Form 8-K does not
constitute an offer to sell, or a solicitation of an offer to buy, any security and shall not constitute an offer, solicitation or sale
in any jurisdiction in which such offer, solicitation or sale would be unlawful.
Item 1.02. Termination of a Material Definitive
Agreement.
The disclosure required by Item 1.02 of Form 8-K
is incorporated herein by reference to the disclosure set forth in Item 1.01 of this Current Report on Form 8-K.
Item 2.03. Creation of a Direct Financial Obligation
or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The disclosure required by Item 2.03 of Form 8-K
is incorporated herein by reference to the disclosure set forth in Item 1.01 of this Current Report on Form 8-K.
Item 3.02. Unregistered Sales of Equity Securities
The disclosure required by Item 3.02 of Form 8-K is incorporated herein
by reference to the disclosure set forth in Item 1.01 of this Current Report on Form 8-K. The Lender Warrants were issued in a transaction
exempt from registration under the Securities Act of 1933, as amended (the “Securities Act”), pursuant to Section 4(a)(2)
thereof. The Lender Warrants issued, and the Warrant Shares issuable upon exercise thereof, have not been registered under the Securities
Act and may not be offered or sold in the United States absent registration or an applicable exemption from registration requirements.
Item 3.03. Material Modification to Rights
of Security Holders
The disclosure required by Item 3.03 of Form 8-K
is incorporated herein by reference to the disclosure set forth in Item 1.01 of this Current Report on Form 8-K.
Item 7.01 Regulation FD Disclosure
On June 15, 2026, Comtech issued a press release announcing, among
other things, the execution of the Purchase Agreement, the Senior Amendment No. 4, the Subordinated Amendment No. 3, and the Exchange
Agreement. A copy of the press release is furnished as Exhibit 99.1 to this Current Report on Form 8-K and is incorporated herein
by reference.
The information in Item 7.01 of this Current Report on Form 8-K, including
the information incorporated by reference from Exhibit 99.1 to this Current Report on Form 8-K, is furnished pursuant to Item
7.01 of Form 8-K and shall not be deemed “filed” for the purposes of Section 18 of the Securities Exchange
Act of 1934, as amended, or otherwise subject to the liabilities of that section. Furthermore, the information in Item 7.01 of this Current
Report on Form 8-K, including the information incorporated by reference from Exhibit 99.1 to this Current Report on Form 8-K, shall
not be deemed to be incorporated by reference in the filings of Comtech under the Securities Act.
Forward Looking Statements
Certain information in this Current Report on Form 8-K contains, and
oral statements made by the Company’s representatives from time to time may contain, forward-looking statements within the meaning
of Section 27A of the Securities Act of 1933, Section 21E of the Securities Exchange Act of 1934, and the Private Securities Litigation
Reform Act of 1995. Forward-looking statements can be identified by words such as: "anticipate," "believe," "continue,"
"could," "estimate," "expect," "future," "goal," "outlook," "intend,"
"likely," "may," "plan," "potential," "predict," "project," "seek,"
"should," "strategy," "target," "will," "would," and similar references to future periods,
or the negative of those words and expressions, as well as statements in future tense. Forward-looking statements include, among others,
the expected completion of, the anticipated benefits of, and the Company’s plans, strategies and objectives relating to, the pending
transaction with Gilat Satellite Networks Ltd, the time frame in which such proposed transaction will occur, and the planned use of net
proceeds received by the Company in connection with the proposed transaction, including the planned repayment of some or all of the Company’s
existing senior secured credit facility and subordinated debt. Forward-looking statements should not be read as a guarantee of future
performance or results, and will not necessarily be accurate indications of the times at, or by which, such performance or results will
be achieved. Forward-looking information is based on information available at the time and/or the Company’s good faith belief with
respect to future events, and is subject to risks and uncertainties that are difficult to predict and many of which are outside of the
Company’s control. Factors that could cause actual results to differ materially from current expectations include, among other things:
the parties’ ability to meet expectations regarding the timing, completion and accounting and tax treatments of the transaction,
including changes in relevant tax and other applicable laws, and the occurrence of any event, change or other circumstance that could
give rise to the termination of the transaction agreements; the risk that the proposed transaction may not be completed on the terms or
in the time frame expected by the parties, or at all, including as a result of a delay or failure to obtain certain required regulatory
approvals or the failure of any other condition to the closing of the transaction such that the closing of the transaction is delayed
or does not occur; unexpected costs, liabilities or delays in connection with the proposed transaction; the significant transaction costs
associated with the proposed transaction; negative effects of the announcement, pendency or consummation of the transaction on the market
price of the Company’s common stock or operating results, including as a result of changes in key customer, supplier, employee or
other business relationships; the risk of litigation or regulatory actions; the Company’s inability to retain and hire key personnel;
and other factors described in this and the Company’s other filings with the Securities and Exchange Commission ("SEC"),
including the “Risk Factors” (Part I, Item 1A), “Management’s Discussion and Analysis of Financial Condition and
Results of Operations” (Part II, Item 7) and “Quantitative and Qualitative Disclosures about Market Risk” (Part II,
Item 7A) sections in the Company’s Annual Report on Form 10-K filed with the SEC on November 10, 2025, as the same may be updated
from time to time in the Company’s various filings with the SEC. The Company does not intend to update or revise publicly any forward-looking
statements, whether because of new information, future events, or otherwise, except as required by law.
Item 9.01. Financial Statements and
Exhibits.
(d) Exhibits
Exhibit
Number
Description
2.1 †
Securities
Purchase Agreement, dated June 14, 2026, by and among Comtech Telecommunications Corp., certain direct or indirect subsidiaries thereof
named therein and Wavestream Corporation.
4.1
Form of Lender Warrant Agreement.
4.2
Form of Preferred Warrant Agreement.
10.1*
Consent and Amendment No. 4 to Credit Agreement, dated as of June 14, 2026, by and among Comtech Telecommunications Corp., as borrower,
the lenders named therein, TCW Asset Management Company LLC, as administrative agent, and Wingspire Capital LLC, as revolving agent.
10.2*
Amendment No. 3 to Subordinated Credit Agreement, dated as of June 14, 2026, by and among Comtech Telecommunications Corp., as borrower,
the guarantors named therein, the lenders named therein, and U.S. Bank Trust Company, National Association, as agent.
10.3
First Amendment to Registration Rights Agreement, dated as of June 14, 2026, by and among Comtech Telecommunications Corp. and the Investors named therein.
10.4
Director Agreement, dated as of June 14, 2026, by and among Comtech Telecommunications Corp., Magnetar Financial LLC and the Investors named therein.
10.5 *
Exchange Agreement, dated as of June 14, 2026, by and among Comtech Telecommunications Corp. and the Investors named therein.
10.6
Form of Voting Agreement.
10.7
Registration
Rights Agreement, dated as of June 14, 2026, by and among Comtech Telecommunications Corp. and the Investors named
therein.
99.1
Press Release, dated June 15, 2026.
104
Cover Page Interactive Data File (embedded within the Inline XBRL document)
† Certain schedules and exhibits to this Exhibit omitted pursuant to Regulation
S-K Item 601(b)(2). The Registrant agrees to furnish supplementally a copy of any omitted schedule or exhibit to the SEC upon request.
* Certain schedules and exhibits to this Exhibit omitted
pursuant to Regulation S-K Item 601(a)(5). The Registrant agrees to furnish supplementally a copy of any omitted schedule or exhibit to
the SEC upon request.
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
COMTECH TELECOMMUNICATIONS CORP.
Dated: June 15, 2026
By:
/s/ Michael A. Bondi
Name: Michael A. Bondi
Title: Chief Financial Officer
EX-2.1 — EXHIBIT 2.1
EX-2.1
Filename: tm2617923d1_ex2-1.htm · Sequence: 2
Exhibit 2.1
SECURITIES PURCHASE AGREEMENT
by and among
WAVESTREAM CORPORATION,
COMTECH TELECOMMUNICATIONS CORP.,
THE CORPORATIONS AND LIMITED LIABILITY COMPANIES
IDENTIFIED
ON EXHIBIT A HERETO,
and
THE SHAREHOLDERS AND MEMBERS THEREOF IDENTIFIED
ON EXHIBIT B HERETO
Dated as of
June 14, 2026
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS; INTERPRETATION
1
Section 1.1
Definitions
1
Section 1.2
Certain Other Defined Terms
19
Section 1.3
Interpretation Generally
22
ARTICLE II
purchase and sale of purchased securities
23
Section 2.1
Closing
23
Section 2.2
Payment of Advance; Purchase and Sale of Purchased Securities
23
Section 2.3
Closing Payments and Deliveries
23
Section 2.4
Purchase Price Adjustment
24
Section 2.5
Closing Deliverables
28
Section 2.6
Withholding
30
ARTICLE III
representations and warranties regarding the Company group
30
Section 3.1
Organization; Authorization
30
Section 3.2
Capitalization; Subsidiaries
31
Section 3.3
Non-Contravention
32
Section 3.4
Consents and Approvals
32
Section 3.5
Financial Statements
32
Section 3.6
Liabilities
33
Section 3.7
Absence of Certain Changes
34
Section 3.8
Governmental Authorizations
34
Section 3.9
Property
35
Section 3.10
Material Contracts
36
Section 3.11
Employee Benefits
38
Section 3.12
Taxes
41
Section 3.13
Environmental Compliance
44
Section 3.14
Compliance with Laws
44
Section 3.15
Litigation
44
Section 3.16
Employees
45
Section 3.17
Insurance
45
Section 3.18
Intellectual Property
46
- i -
TABLE OF CONTENTS
(continued)
Page
Section 3.19
Customers and Suppliers
48
Section 3.20
No Brokers
48
Section 3.21
Related Party Transactions
48
Section 3.22
International Trade and Anti-Corruption Matters
49
Section 3.23
Government Contracts
50
Section 3.24
Privacy and Data Security
53
Section 3.25
Books and Records
54
Section 3.26
Operation of the Business
54
Section 3.27
Product Liability
54
Section 3.28
Disclaimer of Other Representations and Warranties
54
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
55
Section 4.1
Organization; Authorization
55
Section 4.2
Ownership of Outstanding Securities
55
Section 4.3
Non-Contravention
55
Section 4.4
Consents and Approvals
56
Section 4.5
Disclaimer of Other Representations and Warranties
56
ARTICLE V
representations and warranties of Buyer
56
Section 5.1
Organization; Authorization
56
Section 5.2
Non-Contravention
57
Section 5.3
Regulatory Approvals
57
Section 5.4
Litigation and Claims
57
Section 5.5
Financial Capability
58
Section 5.6
Investment Representations
58
Section 5.7
Solvency
58
Section 5.8
No Brokers
59
Section 5.9
No Inducement or Reliance; Independent Assessment
59
Section 5.10
Buyer Guarantor
60
Section 5.11
Disclaimer of Other Representations and Warranties
61
ARTICLE VI
additional covenants and agreements
61
Section 6.1
Access and Investigation
61
Section 6.2
Operation of the Businesses of the Company Group
62
- ii -
TABLE OF CONTENTS
(continued)
Page
Section 6.3
Consents and Filings; Reasonable Best Efforts
66
Section 6.4
Confidentiality
69
Section 6.5
Public Announcements
70
Section 6.6
Indemnification of Directors and Officers
70
Section 6.7
Preservation of Books and Records
71
Section 6.8
Tax Matters
73
Section 6.9
Employment Matters
77
Section 6.10
Exclusive Dealing
79
Section 6.11
Pre-Closing Restructurings
80
Section 6.12
Government Contracts Novation
82
Section 6.13
Further Actions
84
Section 6.14
Restrictive Covenants
85
Section 6.15
Financing Cooperation
85
Section 6.16
Rights to Comtech Names and Marks
86
Section 6.17
Excluded Receivables
87
Section 6.18
Wrong Pockets; Payments
87
Section 6.19
CMMC Compliance
87
Section 6.20
FCC Licenses
87
ARTICLE VII
CONDITIONS PRECEDENT TO OBLIGATION TO CLOSE
88
Section 7.1
Conditions to the Obligation of Buyer
88
Section 7.2
Conditions to the Obligation of Sellers and the Companies
89
ARTICLE VIII
Termination
90
Section 8.1
Termination Events
90
Section 8.2
Effect of Termination
91
Section 8.3
Certain Effects of Termination
92
Section 8.4
Return of Advance Payment
92
ARTICLE IX
NO SURVIVAL; acknowledgements
93
Section 9.1
No Survival
93
Section 9.2
Indemnification by the Sellers
93
Section 9.3
Buyer Insurance Policy
98
Section 9.4
Buyer Acknowledgment
99
- iii -
TABLE OF CONTENTS
(continued)
Page
ARTICLE X
miscellaneous
102
Section 10.1
Expenses
102
Section 10.2
Notices
102
Section 10.3
Governing Law
103
Section 10.4
Entire Agreement
103
Section 10.5
Severability
104
Section 10.6
Amendment
104
Section 10.7
Effect of Waiver or Consent
104
Section 10.8
Parties in Interest; Limitation on Rights of Others
104
Section 10.9
Assignability
105
Section 10.10
Disclosure Schedules
105
Section 10.11
Jurisdiction; Court Proceedings; Waiver of Jury Trial
106
Section 10.12
No Other Duties
106
Section 10.13
Reliance on Counsel and Other Advisors
106
Section 10.14
Remedies
106
Section 10.15
Specific Performance
106
Section 10.16
Release
107
Section 10.17
Counterparts
107
Section 10.18
Further Assurance
107
Section 10.19
Legal Representation
108
Section 10.20
No Recourse Against Non-Recourse Parties
108
EXHIBITS:
Exhibit A:
companies
exhibit
b:
sellers
exhibit
c:
FORM OF
Escrow Agreement
EXHIBIT D:
FORM OF
government CONTRACT TRANSITION AGREEMENT
EXHIBIT E:
FORM OF
TRANSITION SERVICES AGREEMENT
EXHIBIT F:
FORM OF
IP AND IT ASSIGNMENT AGREEMENT
- iv -
SECURITIES
PURCHASE AGREEMENT
This
SECURITIES PURCHASE AGREEMENT (this “Agreement”) is entered into as of June 14, 2026, by and among
Wavestream Corporation, a Delaware corporation (“Buyer”), the companies identified on Exhibit A (collectively,
the “Companies” and each, individually, a “Company”), Comtech Telecommunications Corp., a Delaware
corporation (the “Parent Company”), and the other shareholders and members of the Companies identified on Exhibit B
(collectively and together with the Parent Company, “Sellers” and each, individually, a “Seller”).
Certain capitalized terms used herein have the meanings ascribed to such terms in Article I.
W I
T N E S s E T H:
WHEREAS,
Sellers own beneficially and of record all of the issued and outstanding shares of capital stock of the Companies that are corporations
and all of the issued and outstanding membership interests of the Companies that are limited liability companies, as set forth with respect
to each of the Companies on Exhibit A (the “Outstanding Securities”);
WHEREAS,
the parties hereto mutually desire that Buyer purchase from Sellers, and Sellers sell to Buyer, all of the Outstanding Securities
(the “Purchased Securities”), all on the terms and subject to the conditions set forth in this Agreement (such transactions,
together with all other ancillary transactions contemplated by this Agreement, the “Contemplated Transactions”);
WHEREAS, concurrently with
the execution of this Agreement, and as a condition and inducement to the Companies’ and Sellers’ willingness to enter into
this Agreement, Gilat Satellite Networks Ltd., a company incorporated under the laws of the State of Israel (“Buyer Guarantor”)
has delivered to Sellers a guarantee in favor of Sellers with respect to the performance by Buyer of its obligations hereunder, duly
executed by Buyer Guarantor and dated as of the date hereof (the “Guarantee”), on the terms and conditions set forth
therein;
WHEREAS, the Board of Directors
of the Parent Company has (i) approved and declared advisable this Agreement and the Contemplated Transactions on the terms and
subject to the conditions set forth herein, and (ii) declared and determined that it is in the best interests of the stockholders
of the Parent Company that Sellers and the Companies enter into this Agreement and consummate the Contemplated Transactions on the terms
and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration
of the premises and the mutual representations, warranties, covenants and undertakings contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby
agree as follows:
ARTICLE I
DEFINITIONS; INTERPRETATION
Section 1.1 Definitions.
For purposes hereof, the following terms, when used herein will have the respective meanings set forth below:
“ACA”
means the Patient Protection and Affordable Care Act of 2010, as amended, and the regulations and pronouncements issued with respect
thereto.
“Accounting Principles”
means in accordance with GAAP using and applying the same accounting principles, practices, procedures, policies and methods (with consistent
classifications, judgments, elections, inclusions, exclusions and valuation and estimation methodologies) used and applied by the Company
Group in the preparation of the Year-End Financial Statements for the fiscal year ended July 31, 2025.
“Advance Payment”
means an amount in cash equal to $10,000,000.
“Affiliate”
means, with respect to any subject Person, (a) any other Person directly or indirectly controlling, controlled by, or under common
control with, such subject Person, or (b) as to any Person that is a natural Person, any such Person’s spouse, parents, children
and siblings, whether by blood, adoption or marriage, residing in such Person’s home or any trust or similar entity for the benefit
of any of the foregoing Persons, in each case as of the date on which, or at any time during the period for which, the determination
of affiliation is being made. For purposes of this definition, the term “control” (including the correlative meanings of
the terms “controlled by” and “under common control with”), as used with respect to any Person, means the possession,
directly or indirectly, of the power to direct or cause the direction of the management policies of such Person. For avoidance of doubt,
for purposes of Sections 6.6(e), 6.7, 6.8(b), 6.8(c), 6.8(g), 6.9(f), 6.17, 9.1,
9.2(d)(ii), 9.2(h) and 10.16(c), “Affiliate” with respect to Buyer shall include the Company Group
entities from and after the Closing.
“Ancillary Agreements”
means, collectively, the Escrow Agreement, the Government Contract Transition Agreement, if applicable in accordance with Section 6.12(b),
the Transition Services Agreement and the IP and IT Assignment Agreement.
“Anti-Corruption
Laws” means all applicable U.S. and non-U.S. Laws relating to the prevention of corruption and bribery, including, without
limitation, the U.S. Foreign Corrupt Practices Act of 1977.
“Antitrust Laws”
means the Sherman Act of 1890, as amended; the Clayton Act of 1914, as amended; the Federal Trade Commission Act of 1914, as amended;
the HSR Act, and all other federal, state, foreign or supranational Laws or Orders in effect from time to time that are designed or intended
to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competition
through merger or acquisition.
“Base Amount”
means $157,500,000.
“Books and Records”
of any Person means all books, ledgers, files, reports, plans, records, manuals and other materials (in any form or medium) of, or maintained
for, such Person. Unless the express context otherwise requires, the term “Books and Records” means the “Books and
Records” of the Company Group.
- 2 -
“Burdensome Condition”
means, with respect to any mitigation measure, condition, restriction, undertaking, commitment, agreement or other action required, imposed,
requested or sought by CFIUS or any other Governmental Authority in connection with obtaining CFIUS Approval, any effect(s) that
would, in the aggregate: (a) materially impair the business, operations, assets, properties, financial condition or results of operations
of (i) Buyer and its Affiliates, taken as a whole, or (ii) the Company Group, taken as a whole; (b) require the sale,
divestiture, license, transfer or other disposition of any assets, businesses, operations, product lines, technologies or investments
of Buyer or its Affiliates, (c) require the sale, divestiture, license, transfer or other disposition of any assets, businesses,
operations, product lines, technologies or investments of the Company Group that are material to the business of the Company Group, taken
as a whole; or (d) materially restrict Buyer’s or any of its Affiliates’ ownership, development, commercialization,
licensing or use of any material business, product line, asset, technology, intellectual property or investment of Buyer and its Affiliates,
taken as a whole, or of the Company Group, taken as a whole. For the avoidance of doubt, “Burdensome Condition” shall not
include the establishment of a proxy board (including a proxy board established in connection with the entire Company Group), special
security agreement, or security control agreement, or other similar governance or security arrangement, or requirements relating to information
security, data handling, access restrictions, security protocols, security officer or security director appointments, compliance reporting,
audits, monitoring, training, recordkeeping, notice obligations or similar behavioral or operational commitments, in each case that do
not result in an effect described in clauses (a) through (d) above.
“Business”
means all of the businesses engaged in by the Company Group on the date hereof as currently conducted, including designing, building
and supporting communications equipment, including modems, high-power amplifiers, and troposcatter technologies, serving commercial customers,
defense contractors, United States government agencies and allied foreign governments.
“Business Day”
means any day other than Saturday, Sunday or any day on which banks are authorized or obligated by Law or executive order to close in
New York, New York.
“Business Employee”
means any employee of the Parent Company or any of its direct or indirect Subsidiaries that provides services in connection with the
Business.
“Buyer Insurance
Policy” means (i) the Buyer-Side Representations and Warranties Insurance Policy Number BW05145260348 issued by Ethos
Specialty Insurance Services LP to Buyer in effect as of the date hereof, and (ii) the First Excess Buyer-Side Representations and
Warranties Insurance Policy Number ADKKIY001 issued by Liberty Surplus Insurance Corporation to Buyer in effect as of the date hereof.
“Buyer’s Knowledge”
means the actual knowledge of Buyer Guarantor’s Chief Executive Officer, Chief Financial Officer, SVP M&A and Integration and
Chief Legal Officer after reasonable inquiry by such individuals of the employees of Buyer and its Affiliates that directly report to
such listed individuals.
“CFIUS”
means the Committee on Foreign Investment in the United States or any member agency thereof acting in such capacity.
“CFIUS Approval”
means (i) CFIUS has issued a written determination that the Contemplated Transactions are not a “covered transaction”
within the meaning of Section 721 of the DPA; (ii) CFIUS has issued a written determination to the parties that it has completed
its review or investigation of the CFIUS Notice and has concluded all action pursuant to Section 721 of the DPA and has determined
that there are no unresolved national security concerns with respect to the Contemplated Transactions; or (iii) if CFIUS has sent
a report to the President of the United States requesting the President’s decision and (x) the President has announced a decision
not to take any action to suspend or prohibit the Transactions or (y) having received a report from CFIUS requesting the President’s
decision, the President has not taken any action after fifteen (15) days from the earlier of the date the President received such report
from CFIUS or the end of the investigation period.
- 3 -
“CFIUS Mitigation
Agreement” means a National Security Agreement, or a similar arrangement between CFIUS and some or all of the parties that
resolves risks to U.S. national security identified by CFIUS such that the parties may obtain CFIUS Approval.
“CFIUS Notice”
means a joint voluntary notice with respect to the Transactions submitted to CFIUS pursuant to 31 C.F.R. § 800.501.
“CFIUS Turndown”
shall be deemed to have occurred if CFIUS has informed some or all of the parties orally or in writing that it has unresolved national
security concerns with respect to the Transactions and that it intends to send or has sent a report to the President of the United States
recommending that the President of the United States act to suspend or prohibit such transactions pursuant to the DPA.
“Closing Cash”
means all cash and cash equivalents of any kind (including all cash in bank accounts and cash on hand) and the fair market value of marketable
securities of the Company Group held in the United States or Canada and up to an additional $250,000 held in other jurisdictions as of
12:01 a.m. New York City time on the Closing Date, but excluding Restricted Cash. For the avoidance of doubt, Closing Cash will
be calculated net of issued but uncleared checks and drafts and other wire transfers and drafts deposited for the account of the Company
Group as of 12:01 a.m. New York City time on the Closing Date.
“Closing Funded
Indebtedness” means the aggregate Indebtedness of the Company Group that remains unpaid as of 12:01 a.m. New York City
time on the Closing Date.
“Closing
Net Working Capital” means (a) the sum of the total current assets of the Company Group as of 12:01 a.m. New York City time
on the Closing Date minus (b) the sum of the total current liabilities of Company Group as of 12:01 a.m. New York City time on
the Closing Date, each as calculated in accordance with the Accounting Principles and the example calculation set forth in Schedule 1.1(a)
of the Company Disclosure Schedule, and utilizing only those line items and accounts set forth in Schedule 1.1(a) of the Company Disclosure
Schedule; provided that for purposes of calculating Closing Net Working Capital, (i) current assets shall exclude Closing Cash,
the Excluded Receivables, Income Tax assets, deferred Tax assets and right of use assets under FASB-ASC 842, (ii) current assets shall
include long-term deposits and long-term cost to fulfill contract assets, and (iii) current liabilities shall exclude the current portion
of Indebtedness to the extent explicitly reflected in the Closing Funded Indebtedness, Closing Transaction Expenses, Income Tax
liabilities, accrued and unpaid bonuses, liabilities relating to the Project Horizon loss contract and the Predator loss contract, deferred
Tax liabilities and right of use liabilities under FASB-ASC 842.
- 4 -
“Closing
Transaction Expenses” means the sum (without duplication) of all unpaid fees and expenses incurred by the Company Group,
or that become payable by the Company Group, in connection with this Agreement or the Contemplated Transactions, including, without limitation,
for (a) the amount of any investment banking, accounting, attorney or other professional fees incurred by the Company Group on or
prior to Closing with respect to the Contemplated Transactions, (b) the amount of any transaction-related bonuses (but, for the
avoidance of doubt, not regular performance bonuses) payable to Company Employees upon, or due to, consummation of the Contemplated Transactions,
including the employer portion of any applicable payroll, employment or similar Taxes related to any payments described in this clause
(b), whether or not required to be withheld, (c) fifty percent (50%) of the cost of the D&O Tail Insurance; (d) fifty
percent (50%) of all fees and expenses payable to the Escrow Agent pursuant to the Escrow Agreement; and (e) fifty percent (50%)
of all premiums, underwriting fees, brokers’ commissions and all other costs and expenses related to the Buyer Insurance Policy.
For the avoidance of doubt, “Closing Transaction Expenses” shall not include (i) the amount of any severance or bonus
payments or obligations, in any case, except to the extent due and payable as a result of the consummation of the Contemplated Transactions,
excluding any “double trigger” severance, (ii) any liabilities included in Closing Net Working Capital, (iii) any
Indebtedness to the extent explicitly reflected in the Closing Funded Indebtedness, and (iv) any fees or expenses incurred by Buyer
or its Affiliates (whether or not to be paid by the Company Group after Closing) to any of their financial advisors, attorneys, accountants,
advisors, consultants or other Representatives or financing sources.
“Code”
means the U.S. Internal Revenue Code of 1986, as amended.
“Companies’
Knowledge” means the actual knowledge of any of the individuals listed in Schedule 1.1(b) of the Company Disclosure Schedule
after reasonable inquiry by such listed individuals of the employees of the Company Group that directly report to such listed individuals.
“Company Disclosure
Schedule” means the disclosure schedule, dated as of the date hereof, delivered by the Company to Buyer in connection with
the execution and delivery of this Agreement.
“Company Employee”
means an employee of any Company Group entity.
“Company Group”
means, collectively, the Companies and each of their respective direct and indirect Subsidiaries.
“Company Group Fundamental
Representations” means collectively the representations and warranties set forth in Section 3.1 (Organization;
Authorization), Section 3.2(a) (Capitalization; Subsidiaries), and Section 3.20 (No Brokers).
“Company Group IP”
means all Company Group Licensed IP and Company Group Owned IP, collectively.
“Company Group IT”
means all Information Technology that is owned by, leased by, or licensed to the Company Group or used in connection with the Business.
- 5 -
“Company Group Licensed
IP” means all Intellectual Property that is licensed by a Company Group entity from a third party.
“Company Group Owned
IP” means all Intellectual Property that is owned or purported to be owned by a Company Group entity.
“Companies Proprietary
Software” means proprietary software owned or controlled by the Company Group entities that is used in, incorporated into,
integrated, bundled or distributed with, any Companies Product. Company Proprietary Software excludes Publicly Available Software.
“Company
Material Adverse Effect” means any event, change, development, effect, condition, circumstance, matter, occurrence, or state
of fact (any such item, an “Effect”) that, individually or in the aggregate when taken together with all other Effects
that exist or have occurred prior to the date of determination of the occurrence of a Company Material Adverse Effect, (a) is or
would reasonably be expected to be material and adverse to the business, assets, properties, Liabilities, condition (financial or otherwise)
or results of operations of the Company Group, taken as a whole; or (b) will, or would reasonably be expected to, prevent, materially
impair or materially delay the Parent Company, the Sellers or the Companies to perform their obligations under this Agreement or to consummate
the Contemplated Transactions; provided that for purposes of clause (a), “Company Material Adverse Effect”
shall not include, and shall not be taken into account, whether alone or in combination, in determining whether there has been or may
be a “Company Material Adverse Effect,” any Effect to the extent arising out of or resulting from (i) any general, regional,
global or national economic, monetary or financial condition, including changes or developments in prevailing interest rates, currency
exchange rates, credit ratings, credit markets, securities markets, tariffs or other conditions of trade, any suspension of trading in
securities (whether equity, debt, derivative or hybrid securities) generally on any securities exchange or over-the-counter market, (ii) any
act of God (including earthquakes, volcanic activity, hurricanes, tsunamis, tornadoes, floods, mudslides, wild fires or other natural
or man-made disasters, weather conditions or any changes or worsening with respect thereto), (iii) any epidemics or pandemics (including
COVID-19) or any worsening with respect thereto, any governmental actions with respect thereto, any actions of the Company Group which
are necessary or advisable with respect to the epidemic or pandemic or in response to an Order, (iv) any geopolitical conditions,
outbreak of hostilities, acts of war, insurrection, riot, protest, demonstration, civil unrest, sabotage, cyberterrorism (including by
means of cyber-attack by or sponsored by a Governmental Authorities whether or not specifically targeted at the Company Group or any
of its Subsidiaries or the industry in which it operates), domestic or international terrorism or military or police actions (including
any escalation or general worsening of any of the foregoing), (v) any actual or potential sequester, stoppage, shutdown, default
or similar event or occurrence by or involving any Governmental Authorities affecting a national or federal government as a whole, (vi) any
actual or potential break-up of any existing political or economic union of or within any country or countries or any actual or potential
exit by any country or countries from, or suspension or termination of its or their membership in, any such political or economic union,
(vii) operating, business, regulatory or other conditions in the industry in which the Company Group operates (including industries
from which the Company Group obtains or purchases supplies), (viii) any change or proposed change in Law or GAAP or the interpretation
or enforcement thereof, (ix) any cancellations of or delays in customer orders, any reduction in sales, any loss of, or disruption
in, any customer, supplier and/or vendor relationships, or any loss of employees, to the extent attributable to the negotiation, execution,
delivery, performance or announcement of this Agreement or the Contemplated Transactions or the failure to obtain any consent or waiver,
or deliver any notice, under any Contract listed on Schedule 3.4 of the Company Disclosure Schedule, (x) any action required, permitted
or contemplated by this Agreement or taken by any party to this Agreement or any of its Subsidiaries or any of their respective
Affiliates with the prior written consent or at the written request of the other party, or taken by the Buyer or any of its Affiliates
with respect to the Contemplated Transactions or any failure to act to the extent such action is prohibited by this Agreement, (xi) the
availability or cost of equity, debt or other financing to Buyer or any of its Affiliates, (xii) any Transaction Litigation, or
(xiii) any failure of the Company Group to meet, with respect to any period or periods, any internal or industry analyst projections,
forecasts, estimates of earnings or revenues, or business plans or any changes in the price or trading volume of the Parent Company’s
common stock, in and of itself (it being understood that the facts and circumstances giving rise or contributing to any such failure
may, unless otherwise excluded by another clause in this definition of “Company Material Adverse Effect,” be taken into account
in determining whether a “Company Material Adverse Effect” has occurred or could reasonably be expected to occur), but in
the case of clauses (i) through (viii), only to the extent that such Effects do not disproportionately affect the Company Group,
taken as a whole, relative to other companies in the same industries in which the Company Group operates. References in this Agreement
to Dollar amount thresholds shall not be deemed to be evidence of a Company Material Adverse Effect or materiality. For the avoidance
of doubt, a Company Material Adverse Effect shall not be measured against any forward-looking statements, financial projections or forecasts
of the Company Group provided to Buyer.
- 6 -
“Company Plan”
means an Employee Benefit Plan which is maintained, sponsored or contributed to by any Company Group entity.
“Comtech Names and
Marks” means the names and marks (including trademarks) that use or contain “Comtech”, either alone or in combination
with other words, and all marks, trade dress, logos, monograms, domain names and other source identifiers confusingly similar to or embodying
any of the foregoing either alone or in combination with any other word.
“Confidentiality
Agreement” means the confidentiality agreement executed by Gilat Satellite Networks Ltd for the benefit of the Company Group
as of January 31, 2025.
“Contract”
means any legally binding agreement, license, contract, arrangement, understanding, obligation or commitment to which a party is bound,
including all amendments thereto, in each case other than invoices and statements of work.
“Data Protection
Laws” shall mean all laws and regulations applicable to the Company Group’s collection, storage, use, sharing, safeguarding,
transfer and other processing of Personal Data.
“DCSA”
means the U.S. Defense Counterintelligence and Security Agency.
“DCSA Approval”
means receipt by the parties of written confirmation (including by email) from DCSA (to the reasonable satisfaction of Buyer) that it
has accepted the foreign ownership, control or influence (FOCI) mitigation agreement proposed by the Buyer.
- 7 -
“DPA”
means the Foreign Investment Risk Review Modernization Act of 2018 and the regulations of CFIUS promulgated thereunder, codified at 31
C.F.R. Parts 800 and 802; and Section 721 of Title VII of the Defense Production Act of 1950 (50 U.S.C. §4501 et seq.), as
amended.
“Dollars”
or “$” means the lawful currency of the United States of America.
“Employee Benefit
Plan” means any “employee pension benefit plan” (as defined in Section 3(2) of ERISA), any “employee
welfare benefit plan” (as defined in Section 3(1) of ERISA), any “employee benefit plan” (as defined in Section 3(3) of
ERISA) any “nonqualified deferred compensation plan” as defined in Section 409A of the Code, whether or not such plans
are subject to ERISA, whether or not such plan is tax qualified under the Code, and any other material written or oral benefit, Contract,
policy, program, plan, agreement, or arrangement involving severance, health, welfare, medical, retiree medical and life, dental, vision,
hearing, wellness, life, accidental death and dismemberment, hospitalization, accident death, disability, parental leave, unemployment,
vacation, holiday, sick leave, other paid time off, flexible spending account, health savings account, dependent care assistance, legal
assistance, fringe benefit (cash or non-cash), salary or benefits continuation, deferred compensation, bonuses, commission, performance
award, executive compensation, profit-sharing, retention, change in control, tuition reimbursement, stock options, restricted stock,
phantom stock, stock appreciation, or other forms of equity and incentive compensation or post-retirement compensation, for the benefit
of the current or former employees, officers, directors, or individual independent contractors, or any of their spouses, dependents,
or beneficiaries of the Company Group entities, in which the Company Group entities participate, maintain, sponsor, contribute to or
have any obligation to contribute to, or under which the Company Group entities have joint or several liability.
“Environmental
Laws” means all Laws, including common law, in effect on or prior to the Closing Date, relating to (a) pollution or contamination
(or the investigation, cleanup, response or remediation thereof); (b) the import, export, refinement, removal, production, manufacture,
sale, handling, transport, use, treatment, labeling, storage, emission, discharge, Release, threatened Release, disposal of, or exposure
of or to a Hazardous Substance or materials containing a Hazardous Substance; (c) the protection reclamation or preservation of
the environment (including the ambient air, indoor air, soil, surface water, ground water, wetlands, forestry, land, subsurface
strata or other natural resources); and (d) human, plant or animal health or safety, including without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq.; the Resource Conservation and Recovery
Act, 42 U.S.C. § 6901 et seq.; the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq.; the Clean Air
Act, 42 U.S.C. § 7401 et seq.; the Toxic Substances Control Act, 15 U.S.C. §§ 2601 through 2629; the Oil Pollution
Act, 33 U.S.C. § 2701 et seq.; the Emergency Planning and Community Right-to-Know Act, 42 U.S.C. § 11001 et seq.;
the Safe Drinking Water Act, 42 U.S.C. §§ 300f through 300j; the Occupational Safety and Health Act, 29 U.S.C. § 651 et
seq.; the Atomic Energy Act of 1954, 42 U.S.C. § 2011 et seq.; the Safe Drinking Water and Toxic Enforcement Act of 1986,
Cal. Health & Safety Code §§ 25249.5 to 25249.14 (“Prop 65”); (e) any such similar laws or
regulations under state or local Law; (f) amendments to and regulations, rules, orders and requirements promulgated under any of
the foregoing; and (g) any common law imposition of duties, obligations and liabilities related to Hazardous Substances, including
claims for nuisance, trespass, waste, equitable contribution and equitable indemnity.
- 8 -
“Environmental Permit”
means all Governmental Authorizations or Permits required by applicable Environmental Laws and any notices to Governmental Authorities
required by applicable Environmental Laws.
“ERISA”
means the U.S. Employee Retirement Income Security Act of 1974, as amended.
“ERISA Affiliate”
means any Person, trade, business, or entity that together with any of the Company Group entities would be deemed a “single employer”
within the meaning of Section 414 of the Code or under “common control” within the meaning of Section 4001(a)(14)
of ERISA.
“Escrow Account”
means the escrow account established pursuant to the Escrow Agreement.
“Escrow Agent”
means HSBC Bank USA, National Association.
“Escrow Agreement”
means an escrow agreement by and among Buyer, the Parent Company and the Escrow Agent in substantially the form attached hereto as Exhibit C,
with such customary changes thereto as may be requested by the Escrow Agent.
“Escrow Amount”
means $3,000,000.
“Estimated Aggregate
Closing Consideration” means (i) the sum of (a) the Base Amount, plus (b) the Estimated Closing Cash,
plus (c) the Positive Estimated Closing Working Capital Adjustment Amount (if any), minus (ii) the sum of (a) the
Estimated Closing Funded Indebtedness, plus (b) the Estimated Closing Transaction Expenses, plus (c) the Negative
Estimated Closing Working Capital Adjustment Amount (if any), plus (d) the Escrow Amount.
“Exchange Act”
means the U.S. Securities Exchange Act of 1934, as amended.
“Excluded Receivables”
means all amounts due and payable to any Company Group entity, as of the Closing, whether billed or unbilled and whether or not having
been written down in value, pursuant to Purchase Order SPE4458, dated October 31, 2023, under that certain International Representative
Agreement, dated June 10, 2019, between Spectra Group (UK) Limited and Comtech Systems, Inc., as amended.
“Final Aggregate
Closing Consideration” means (i) the sum of (a) the Base Amount, plus (b) Final Closing Cash, plus
(c) the Positive Final Closing Working Capital Adjustment Amount (if any), minus (ii) the sum of (a) Final Closing
Funded Indebtedness, plus (b) Final Closing Transaction Expenses, plus (c) the Negative Final Closing Working
Capital Adjustment Amount (if any), plus (d) the Escrow Amount.
“Foreign Investment
Laws” means any Law, in any jurisdiction, whether domestic or foreign, that is designed to regulate foreign investment or that
provides for a review of an investment on national security matters, excluding any U.S. National Security Laws.
“Fraud”
means, with respect to the making of any representation or warranty set forth in this Agreement, in any Ancillary Agreement or in any
certificate delivered in connection herewith, common law liability under Delaware Law for fraud; provided that fraud of such Person
shall not be deemed to exist unless, in addition to the elements of fraud under Delaware Law, such Person (or, in the case of Sellers
or the Companies, as applicable, any of the Persons specified in the definition of the “Companies’ Knowledge”) had
actual knowledge (as opposed to imputed or constructive knowledge and without a duty to investigate) of an intentional misrepresentation
of a material fact. For the avoidance of doubt, “Fraud” does not include equitable or constructive fraud, promissory fraud,
unfair dealings fraud, or any torts (including fraud) based on negligence or recklessness.
- 9 -
“GAAP”
means United States generally accepted accounting principles, consistently applied during the periods involved.
“Governmental Authority”
means any United States or foreign federal, state, provincial or local government or other political subdivision thereof, any entity,
authority or body exercising executive, legislative, judicial, regulatory or administrative functions of any such government or political
subdivision (including any self-regulatory authority), any supranational organization of sovereign states exercising such functions for
such sovereign states.
“Governmental Authorizations”
means all licenses, permits, certificates, grants, franchises, waivers, consents and other similar authorizations or approvals issued
by or obtained from a Governmental Authority.
“Government Bid”
means any quotation, bid or proposal made by the Company Group that if accepted or awarded to the Company Group would constitute a Contract
with any Governmental Authority, or any Person engaged in a Government Contract with a Governmental Authority, for the design, manufacture
or sale of products or the sale of services by the Company Group.
“Government Contract”
means any Contract for the sale of supplies or services currently in performance, or that is awarded to or entered into by the Company
Group between the date hereof and the Closing Date pursuant to a Government Bid, that is between the Company Group and a Governmental
Authority or entered into by the Company Group as a subcontractor at any tier in connection with a Contract between another Person and
a Governmental Authority.
“Government Contract
Novation Date” means the date that is five (5) Business Days after the date on which the Government Contract Novations
shall have been completed in accordance with Section 6.12(a).
“Hazardous
Substances” means each substance, chemical, material or waste that is defined, listed, classified or regulated by any
Governmental Authority under any Environmental Law, including without limitation (a) hazardous, radioactive, toxic, carcinogenic,
mutagenic, pathogenic, endocrine disrupting, corrosive, dangerous, noxious, flammable, explosive, or infectious substances, products,
chemicals, materials, or wastes classified with words of similar import (including without limitation those defined, regulated, or controlled
as hazardous, or for which standards of conduct are imposed under or any similar import or effect under any Environmental Law); (b) petroleum
and petroleum products, including crude oil or any derivative or fraction thereof; (c) natural gas, synthetic gas, and any mixtures
thereof; (d) lead, urea formaldehyde, polychlorinated biphenyls, asbestos, or asbestos-containing material, radon, mold, pesticides,
herbicides, per- and polyfluoroalkyl substances, commonly referred to as PFAS substances; (e) any other pollutant or contaminant;
and (f) any substance, material, or waste regulated by any Governmental Authority.
- 10 -
“HSR Act”
means the U.S. Hart-Scott-Rodino Antitrust Improvements Act of 1976.
“Income Tax”
means Taxes that are, in whole or in part, imposed on or measured by net income (however denominated), and franchise Taxes or business
profits Taxes incurred in lieu of, or in addition to, a Tax on net income.
“Income Tax Return”
means a Tax Return relating to Income Taxes.
“Indebtedness”
means, with respect to any Person, without duplication, all obligations, whether or not contingent, accrued, matured, unmatured, known
or unknown, including but not limited to principal, interest accrued and unpaid, premiums, fees, make-whole amounts, penalties, breakage
amounts or other payment obligations of such Person (a) for borrowed money, (b) evidenced by bonds, debentures, notes or other
similar debt securities, (c) under leases that have been, in accordance with GAAP, recorded as capital or finance leases by such
Person, (d) under any interest rate, commodity or currency protection agreement or similar hedging agreement of such Person, assuming
such agreements are terminated as of the Closing Date, minus any amounts payable to such Person in connection with such termination (which
may be a positive or negative number), (e) for guarantees, keep-wells, surety or similar obligations with respect to indebtedness
of the type referred to in clauses (a) through (d) above, (f) Unpaid Income Taxes, (g) for any earn-out, milestone, deferred,
contingent or other obligations to pay deferred or unpaid purchase price in respect of an acquisition of a Person, asset, property or
business, (h) for bankers’ acceptances, letters of credit or similar credit transactions (including all reimbursement obligations
with respect thereto), in each case, only to the extent drawn, (i) for off-balance sheet financial obligations in the nature of indebtedness,
including synthetic leases and project financing; (j) for any unfunded or underfunded pension or other retirement-related liabilities,
(k) for any accrued and unpaid bonuses (but for avoidance of doubt excluding commissions and royalties), and (l) for liabilities relating
to the Project Horizon loss contract and the Predator loss contract; provided that Indebtedness shall not include (i) accounts
payable, accrued expenses and other amounts included, to the extent included, as a current liability in the calculation of Closing Net
Working Capital, (ii) the endorsement of negotiable instruments for collection in the ordinary course of business, (iii) Indebtedness
owing solely among members of the Company Group, or (iv) obligations under letters of credit or similar instruments to the extent
undrawn. For the avoidance of doubt, Indebtedness does not include any amounts under the Credit Agreement or the Subordinated Credit Agreement
for which the Company Group will not have obligations following the Closing.
“Indemnified Taxes”
means (a) any Taxes imposed on or payable by any Company Group entity for any taxable period prior to Closing as a result of the
Restructuring Transactions, undertaken between the date hereof and the Closing, and (b) any liability for any “excess parachute
payment” (within the meaning of Section 280G(b) of the Code) made by any Company Group entity on or prior to the Closing
Date or otherwise required to be paid by any Company Group entity pursuant to Contracts, agreements that include change in control arrangements
or Employee Benefit Plans entered into or adopted on or prior to the Closing Date, if applicable, in each case except to the extent any
such Taxes are taken into account in the calculation of Final Aggregate Closing Consideration.
- 11 -
“Information Technology”
shall mean the information technology, computers, computer systems, firmware, middleware, servers, workstations, routers, hubs, Internet
websites, data, databases, software programs, source code and object code.
“Intellectual Property”
means all worldwide common law and statutory rights in, arising out of, or associated with, the business names, trade names, brand names,
registered and unregistered trademarks (including all common law rights and goodwill therein), trade secrets, service marks and applications,
patents and patent applications, copyrights in both published works and unpublished works, domain names, web sites, and inventions (whether
or not patentable), formulations, data, databases, maps, processes, formulas, patterns, designs, know-how, trade secrets, software, technical
information, process technology, plans, design history files, drawings, and blue prints (including, in each case, all improvements thereto
and the goodwill associated therewith).
“International
Trade Laws” means any applicable U.S. or non-U.S. Laws or regulations governing the import, export, reexport, release,
brokering, or transfer of goods, software, technology, technical data, and services, including, without limitation, (a) the
U.S. export control laws and regulations administered and enforced by the U.S. Department of Commerce pursuant to the Export
Administration Regulations (15 C.F.R. parts 730–774), and the U.S. Department of State pursuant to the International Traffic
in Arms Regulations (“ITAR,” 22 C.F.R. parts 120–130); (b) the import and customs laws administered
and enforced by the U.S. Departments of Homeland Security, Commerce, and U.S. Customs and Border Protection; (c) U.S.
anti-boycott Laws (Section 999 of the US Internal Revenue Code of 1986, as amended, or related provisions, or under the Export
Administration Act, as amended, 50 U.S.C. App. Section 2407 et. seq.); (d) sanctions Laws as administered by the U.S.
Department of the Treasury’s Office of Foreign Assets Control (31 C.F.R. part 500 et seq.); or (e) any other similar
Applicable Law, directive or regulation (including those of the European Union or any of its Members States) regulating the
development, commercialization or export of technology.
“Key
Employees” shall mean those individuals whose names are set forth on Schedule 1.1(c) of the Company Disclosure
Schedule.
“Law”
means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, decree or other requirement or rule with
similar effect of any Governmental Authority.
“Liability”
means any debt, obligation, duty, or liability of any nature, regardless of whether such debt, obligation, duty, or liability would be
required to be disclosed on a balance sheet.
“Lien”
means any mortgage, pledge, security interest, lien, encumbrance, or any similar claim or charge.
“Losses”
means all losses, costs, interest, charges, obligations, liabilities, Taxes, settlement payments, awards, judgments, fines, penalties,
damages, assessments, deficiencies and expenses (including reasonable attorneys’, consultants’ and experts’ fees, and
including expenses incurred in connection with investigating, defending against or settling any of the foregoing or any Third-Party Claim);
provided that “Losses” (a) shall not include consequential, punitive or exemplary damages except to the extent
payable in connection with any Third-Party Claim, and (b) to the extent relating to matters that are not covered by the Buyer Insurance
Policy, shall be computed without regard to any price earnings, EBITDA or other multiple, discount rates/yields, equivalent equity ratio
or any other valuation mechanism explicit or implicit in the negotiations on the Base Amount.
- 12 -
“Negative Estimated
Closing Working Capital Adjustment Amount” means the amount, if any, by which the Target Working Capital exceeds Estimated
Closing Net Working Capital.
“Negative Final
Closing Working Capital Adjustment Amount” means the amount, if any, by which the Target Working Capital exceeds Final Closing
Net Working Capital.
“NISPOM”
means the National Industrial Security Program Operating Manual, as codified in 32 C.F.R. Part 117 and any supplements, amendments
or revisions thereto.
“Non-Recourse Party”
means, with respect to any party, any of such party’s former, current and future direct or indirect equityholders, controlling
Persons, directors, officers, employees, agents, incorporators, Representatives, attorneys, Affiliates, members, managers, general or
limited partners, or assignees (or any former, current or future direct or indirect equityholder, controlling Person, director, officer,
employee, agent, incorporator, representative, attorney, Affiliate, member, manager, general or limited partner, or assignee of any of
the foregoing); provided, however, that, for the avoidance of doubt, “Non-Recourse Party” shall not include
(i) any Contracting Party, or (ii) any Person that is a party to an Ancillary Agreement (but solely with respect to such Person's
specific obligations under such Ancillary Agreement).
“Novated Government
Contract” means each Government Contract for which the Government Contract Novation has been completed in accordance with Section 6.12(a).
“Order”
means any order, judgment, injunction, edict, decree, ruling, pronouncement, determination, decision, opinion, sentence, subpoena, writ,
or award issued, made, entered, or rendered by any court, administrative agency, or other Governmental Authority or by any arbitrator.
“Organizational
Documents” means (a) with respect to a corporation, its certificate or articles of incorporation and bylaws, or (b) with
respect to a limited liability company, its certificate of formation and operating agreement.
“Outside Date”
means the one (1) year anniversary of the date of this Agreement.
“Parent Company
Board” means the Board of Directors of the Parent Company.
“Parent Company
Change of Control” means any of the following events occurring after the Closing: (a) a “person” or “group”
(within the meaning of Section 13(d)(3) of the Exchange Act), other than the Parent Company or its wholly owned Subsidiaries,
becomes the direct or indirect “beneficial owner” (as defined below) of shares of the Parent Company’s common equity
representing more than fifty percent (50%) of the voting power of all of the Parent Company’s then-outstanding common equity; or
(b) the consummation of (i) any sale, lease or other transfer, in one transaction or a series of related transactions, of all
or substantially all of the assets of the Parent Company and its Subsidiaries, taken as a whole, to any Person; or (ii) any transaction
or series of related transactions in connection with which (whether by means of merger, consolidation, share exchange, combination, reclassification,
recapitalization, acquisition, liquidation or otherwise) all of the Parent Company’s outstanding common stock is exchanged for,
converted into, acquired for, or constitutes solely the right to receive, other securities, cash or other property; provided,
however, that any merger, consolidation, share exchange or combination of the Parent Company pursuant to which the Persons that
directly or indirectly “beneficially owned” (as defined below) all classes of the Parent Company’s common equity immediately
before such transaction directly or indirectly “beneficially own,” immediately after such transaction, more than fifty percent
(50%) of all classes of common equity of the surviving, continuing or acquiring company or other transferee, as applicable, or the parent
thereof, in substantially the same proportions vis-à-vis each other as immediately before such transaction will be deemed not
to be a Parent Company Change of Control pursuant to this clause (b).
- 13 -
“Parent Company
SEC Documents” means all registration statements, prospectuses, reports, schedules, forms, statements, and other documents
(including exhibits and schedules thereto and all other information incorporated by reference therein) required to be filed or furnished
by the Parent Company with the U.S. Securities and Exchange Commission (the “SEC”) since August 1, 2021 that
are publicly available at least five (5) Business Days prior to the date hereof.
“Permits”
shall mean any permits, licenses, consents, authorizations, declarations, registrations, listings, exemptions, clearances and other permissions
and approvals from Governmental Authorities and used in the Business as currently conducted.
“Permitted
Liens” means (a) Liens under existing Indebtedness reflected in the Latest Balance Sheet or incurred in the ordinary
course of business since the Latest Balance Sheet Date, that will, in each case, be released at Closing, (b) landlords’,
lessors’, mechanics’, materialmen’s, warehousemen’s, carriers’, workers’, or repairmen’s
Liens relating to obligations as to which there is no default on the part of any Company Group entity or the amount or validity of
which is being contested in good faith by appropriate proceedings, (c) Liens for Taxes not yet due and payable, or due but not
delinquent or being contested in good faith and for which adequate reserves have been established in accordance with GAAP,
(d) with respect to real property, (i) easements, quasi-easements, licenses, covenants, rights-of-way, rights of
re-entry or other similar restrictions, including any other agreements, conditions or restrictions which do not materially impair
the occupancy or use of the real property for the purposes for which it is currently used in connection with the Business,
(ii) any conditions that may be shown by a current survey or physical inspection and that do not materially impair the
occupancy or use of the real property for the purposes for which it is currently used in connection with the Business,
(iii) zoning, building, subdivision or other similar requirements or restrictions which are not violated by the current use
and operation of the applicable real property (except for any violations that would not adversely affect in any material respect the
use and occupancy of any such real property as currently used and occupied) and that do not materially impair the occupancy or use
of the real property for the purposes for which it is currently used in connection with the Business, (iv) Liens and other
similar restrictions of record identified in any title reports obtained by Buyer (or any of its Representatives) or made available
in the Data Room, and (v) any and all service contracts and agreements affecting any real property that, in each case, do not
impair in any material respect the current use or occupancy of the real property subject thereto, (e) Liens arising under
leases, subleases, real property licenses and occupancy and/or use agreements relating to real property, (f) Liens to lenders
incurred in deposits made in the ordinary course in connection with maintaining bank accounts, (g) deposits or pledges to
secure the payment of workers’ compensation, unemployment insurance, social security benefits or obligations arising under
similar Laws, or to secure the performance of public or statutory obligations, surety or appeal bonds, and other obligations of a
like nature, and (h) Liens created by this Agreement or any of the Ancillary Agreements, or in connection with the
Contemplated Transactions by Buyer.
- 14 -
“Person”
means an individual, a corporation, a general partnership, a limited partnership, an association, a limited liability company, a Governmental
Authority, a trust or other entity or organization.
“Personal Data”
means data that is defined as personal data, personal information, or personally identifiable information under applicable privacy Laws.
“Positive Estimated
Closing Working Capital Adjustment Amount” means the amount, if any, by which Estimated Closing Net Working Capital exceeds
the Target Working Capital.
“Positive Final
Closing Working Capital Adjustment Amount” means the amount, if any, by which Final Closing Net Working Capital exceeds the
Target Working Capital.
“Pre-Closing Tax
Period” means (a) any taxable period ending on or before the Closing Date and (b) with respect to any Straddle Period,
the portion of such Straddle Period ending on the Closing Date.
“Proceeding”
means any action, suit, litigation, arbitration, lawsuit, claim, proceeding (including any civil, criminal, administrative, investigative,
or appellate proceeding), prosecution, contest, hearing, inquiry, inquest, audit, examination, investigation or dispute commenced, brought,
conducted or heard by or before a Governmental Authority.
“Publicly Available
Software” means (a) any software that contains, or is derived in any manner in whole or in part from, any software that
is distributed as free software, open source software (e.g. Linux) or under similar licensing or distribution models; (b) any software
that requires as a condition of use, modification or distribution that such software or other software incorporated into, derived from
or distributed with such software: (i) be disclosed or distributed in source code form; (ii) be licensed for the purpose of
making derivative works; or (iii) be redistributable at no charge; and (c) software licensed or distributed under any of the
following licenses or distribution models, or licenses or distribution models similar to any of the following: (A) GNU’s General
Public License (GPL) or Lesser/Library GPL (LGPL); (B) the Artistic License (e.g., PERL); (C) the Mozilla Public License; (D) the
Netscape Public License; (E) the Sun Community Source License (SCSL); (F) the Sun Industry Source License (SISL); and (G) the
Apache Software License.
“Release”
means any escape, emptying, leaching, migrating, release, spill, emission, leaking, pumping, injection, disposal or discharge
of any Hazardous Substance into the environment (including the ambient air, indoor air, soil, surface water, ground water, wetlands,
forestry, land, subsurface strata or other natural resources), including the abandonment or discarding of barrels, containers, or other
closed receptacles containing any Hazardous Substance.
- 15 -
“Representative”
or “Representatives” means, with respect to a particular Person, any director, manager, member, limited or general
partner, equityholder, officer, employee, agent, consultant, advisor or other representative of such Person, including outside legal
counsel, accountants and financial advisors.
“Restricted Cash”
means any cash, cash equivalents, and marketable securities of the Company Group that are not readily available because they have been
set aside for specific purposes that cannot be used for general business operations, including (a) lease and other deposits with
third parties, (b) cash held as collateral in respect of letters of credit, surety bonds, bank guarantees or performance bonds,
(c) cash held in escrow; (d) cash held on behalf of third-parties; and (e) any other cash the use or distribution of which
is restricted by Law, Order, or Contract. For avoidance of doubt, “Restricted Cash” shall not include customer advances.
“Sanctioned Person”
means any Person that is the subject or target of Sanctions Laws or restrictions under International Trade Laws, including: (i) any
person listed on any applicable U.S. or non-U.S. sanctions- or export-related restricted party list, including but not limited to, the
U.S. Department of the Treasury, Office of Foreign Asset Control’s Specially Designated Nationals and Blocked Persons List; the
Department of Commerce’s Denied Persons, Unverified, Military End User, and Entity Lists; and the EU Consolidated List of Designated
Parties, maintained by the European Union; the Consolidated List of Assets Freeze Targets, maintained by HM Treasury (U.K.); (ii) resident
in or organized under the Laws of a country or territory that is the subject of comprehensive restrictive Sanctions Laws from time to
time (collectively, the “Sanctioned Countries” which includes, as of the date of this Agreement, Cuba, Iran,
North Korea, and the Crimea region and so-called Donetsk People’s Republic and Luhansk People’s Republic in Ukraine); or
(iii) majority-owned by any of the foregoing.
“Sanctions Laws”
means all laws, rules, regulations, and orders concerning embargoes, economic sanctions, export restrictions, the ability to make or
receive international payments, the ability to engage in international transactions, or the ability to take an ownership interest in
assets located in a foreign country administered or enforced by the U.S. Department of the Treasury, the U.S. Department of State, the
United Nations Security Council, the European Union or any European Union member state, Her Majesty’s Treasury of the United Kingdom,
and any other relevant sanctions authority (collectively, the “Sanctions Authorities”).
“Securities Act”
means the Securities Act of 1933, as amended.
“Seller Fundamental
Representations” means collectively the representations and warranties set forth in Section 4.1 (Organization;
Authorization), and Section 4.2 (Ownership of Outstanding Securities).
“Seller Plan”
means an Employee Benefit Plan that is maintained, sponsored or contributed to by the Parent Company (or an Affiliate of the Parent Company
other than any Company Group entity) and in which any Company Employee participates.
“Subsidiary”
means with respect to any Person, any corporation, limited liability company, partnership, association, or other business entity of which
(a) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly,
by that Person or one or more of the other subsidiaries of that Person or a combination thereof, or (b) if a limited liability company,
partnership, association or other business entity (other than a corporation), a majority of partnership or other similar ownership interests
thereof having the power to govern or elect members of the applicable governing body of such entity is at the time owned or controlled,
directly or indirectly, by that Person or one or more subsidiaries of that Person or a combination thereof; and the term “Subsidiary”
with respect to any Person shall include all subsidiaries of each subsidiary of such Person.
- 16 -
“Target Working
Capital” means seventy-four million seven hundred and seventy-five thousand dollars ($74,775,000).
“Tax”
or “Taxes” means all federal, state or local and all foreign taxes, including income, gross receipts, windfall profits,
value added, severance, property, production, sales, use, duty, license, excise, franchise, employment, withholding or similar taxes,
together with any interest, additions or penalties with respect thereto and any interest with respect to such additions or penalties.
“Tax Return”
means any report, return, or statement (including schedules and information returns) required to be supplied by the Company Group to
a Taxing Authority in connection with any Taxes and any amendment thereto.
“Taxing Authority”
means any Governmental Authority responsible for the administration, assessment or imposition of any Tax (foreign or domestic).
“Transaction Deductions”
means all Tax deductions to which the Company Group is entitled by applicable Law to take on or before the Closing Date as a result or
in connection with the Contemplated Transactions, including with respect to the following: (a) any and all sale bonuses, change-in-control
payments, severance payments, retention payments, or similar payments made to employees or other service providers paid in connection
with the Contemplated Transactions, including all payroll or employment Taxes related thereto; plus (b) any and all deductible amounts,
including fees, expenses, and interest (including unamortized original issue discount and any other amounts treated as interest for federal
income Tax purposes), any unamortized financing costs, premium deductions arising from the repayment of Indebtedness, any prepayment
penalty, breakage fees or accelerated deferred financing fees incurred in connection with the repayment or retirement of the Company
Group’s Indebtedness as contemplated by this Agreement; plus (c) any and all deductible payments of Closing Transaction Expenses
as contemplated by this Agreement (including amounts that would have been Transaction Expenses but were in fact paid prior to the Closing);
plus (d) any other transaction-related payment or amount otherwise economically incurred by the Sellers. For purposes of this Agreement,
the parties agree to make any available elections under Revenue Procedure 2011 29 to treat 70% of any success-based fees paid by the
Company Group as deductible under Rev. Proc. 2011-29 to the extent permissible under applicable law, and such amounts shall be a Transaction
Deduction. The Parent Company’s determination of the amount of each such item referred to in clauses (c) and (d) that
is deductible shall be conclusive for purposes of this Agreement; provided that the Parent Company shall determine the deductibility
of any such amounts in good faith and in consultation with the Company Group’s Tax Return preparers and tax counsel.
- 17 -
“Transaction Litigation”
means any Proceeding commenced or threatened by any current or former equityholder of the Parent Company (whether directly or derivatively)
against a party hereto or any of its Subsidiaries, Affiliates, directors, employees or otherwise relating to, involving or affecting
such party or any of its Subsidiaries, Affiliates, directors or employees, in each case in connection with, arising from or otherwise
relating to the Contemplated Transactions, including any such Proceeding alleging or asserting (i) any misrepresentation or omission
in any document, or (ii) any breach of fiduciary or other duties of the Parent Company Board, in each case other than any Proceeding
among the parties hereto or their respective Affiliates related to this Agreement, the Ancillary Agreements or the Contemplated Transactions.
“Transition Services
Agreement” means a transition services agreement by and between the Parent Company and Buyer in substantially the form attached
hereto as Exhibit E.
“U.S. National Security
Laws” means the DPA, NISPOM, and ITAR.
“Unpaid Income Taxes”
means, without duplication, any amount (not less than zero) equal to the aggregate amount of any unpaid Income Taxes of the Company Group
for Pre-Closing Tax Periods for which Income Tax Returns have not been filed as of the Closing Date, provided that, for purposes
of computing Unpaid Income Taxes, the liability shall be determined (i) by assuming the Tax year of the Company Group entities ends
at the end of the Closing Date; (ii) unless otherwise required pursuant to applicable Law, on a basis consistent with applicable
past practice (including reporting positions, elections and Tax accounting methods) in the jurisdictions where, with respect to a Company
Group entity, such Company Group entity has historically filed Income Tax Returns (or in which such Company Group entity recently acquired
Income Tax nexus and would not have been required to file such Tax Returns historically); (iii) by taking into account all Transaction
Deductions in a Pre-Closing Period to the extent permissible under applicable Law; (iv) by taking into account any Tax, credits,
estimated payments, prepayments, refunds, overpayments and any other similar Tax assets of the Company Group entities, in each case,
that are available to offset or reduce such Income Taxes in the applicable jurisdiction and for the applicable Pre-Closing Tax Period
as a matter of applicable Law; (v) by excluding any Income Taxes for which a Seller (or a Seller’s direct or indirect parent,
including the Parent Company) is considered the entity that is primarily responsible for the payment of the Tax; (vi) in the case
of Income Taxes of any Company Group entity that are payable with respect to a Straddle Period, in accordance with Section 6.8(a)(iv)),
(vii) by excluding any liabilities for accruals or reserves established or required to be established under GAAP for contingent
Income Taxes or with respect to uncertain Tax positions; (viii) by excluding any Income Taxes that are attributable to actions taken
by, or at the request of, a Buyer or any of its Affiliates (including the Company Group) after the Closing or are attributable to Buyer
financing; (ix) by excluding any liabilities for Income Taxes attributable to the amendment of any Tax Return filed after Closing
that includes a Pre-Closing Tax Period; (x) by excluding any liabilities for Income Taxes attributable to any voluntary disclosure
agreements (or discussions or examinations with any Taxing Authority regarding Income Taxes) with respect to any Pre-Closing Tax Period
that are initiated by Buyer or its Affiliates (including the Company Group) after the Closing Date; and (xi) by excluding any deferred
Income Tax assets and deferred Income Tax liabilities.
- 18 -
Section 1.2 Certain
Other Defined Terms. The following terms shall have the meaning set forth in the Section opposite such term:
Term
Where
Found
Accounting
Firm
Section 2.4(d)
Acquisition
Transaction
Section 6.10(a)
Active
Government Contract
Section 6.12(a)
Agreement
Preamble
Anti-Laundering
Laws
Section 3.22(c)
Audited
Financial Statements
Section 7.1(g)
Buyer
Preamble
Buyer
401(k) Plan
Section 6.9(d)
Buyer
Guarantor
Recitals
Buyer
Indemnified Parties
Section 9.3(a)
Buyer
Welfare Plans
Section 6.9(c)
Challenge
to the Transaction
Section 6.3(a)
Chosen
Courts
Section 10.11
Claim
Section 9.2(c)
Closing
Section 2.1
Closing
Consideration Allocation
Section 6.8(g)
Closing
Date
Section 2.1
Closing
Date Statement
Section 2.3(a)
CMMC
Section 6.19
Combined
Tax Return
Section 6.8(a)(i)
Company(ies)
Preamble
Company
Group Information
Section 6.4(b)
Companies
Privacy Obligations
Section 3.24(a)
Company
Registered Intellectual Property
Section 3.18(c)
Contemplated
Transactions
Recitals
Continuing
Employee(s)
Section 6.9(a)
Contracting
Party(ies)
Section 10.20
Credit
Agreement
Schedule
2.5(a)(ix) of the Company Disclosure Schedule
CSNTC
Transaction
Section 6.8(b)
D&O
Indemnified Parties
Section 6.6(a)
D&O
Tail Insurance
Section 6.6(b)
Data
Room
Section 1.3(o)
Direct
Claim
Section 9.2(g)
DRE
Section 6.8(g)
Election
Notice
Section 2.4(a)
End-of-Use
Date
Section 6.16(b)
- 19 -
Term
Where
Found
Estimated
Closing Cash
Section 2.3(a)
Estimated
Closing Funded Indebtedness
Section 2.3(a)
Estimated
Closing Net Working Capital
Section 2.3(a)
Estimated
Closing Transaction Expenses
Section 2.3(a)
FAR
Section 3.23(h)
Final
Closing Cash
Section 2.4(d)
Final
Closing Funded Indebtedness
Section 2.4(d)
Final
Closing Net Working Capital
Section 2.4(d)
Final
Closing Transaction Expenses
Section 2.4(d)
Final
Purchase Price Adjustment Statement
Section 2.4(d)
Financial
Statements
Section 3.5(a)
General
Enforcement Exceptions
Section 3.1(b)
Governmental
Antitrust Authority
Section 6.3(a)
Governmental
Consents
Section 3.4
Government
Contract Novations
Section 6.12(a)
Government
Contract Transition Agreement
Section 6.12(b)
Guarantee
Recitals
Inactive
Government Contract
Section 6.12(a)
In-Licenses
Section 3.18(f)
Interim
Financial Statements
Section 3.5(a)
IP
and IT Assignment Agreement
Section 6.11(a)(ii)
IP
Contracts
Section 3.18(g)
IRS
Section 3.11(a)
ITAR
Definition
of “International Trade Laws”
Latest
Balance Sheet
Section 3.5(a)
Latest
Balance Sheet Date
Section 3.5(a)
Leased
Real Property
Section 3.9(b)
Lease(s)
Section 3.9(b)
Licensee(s)
Section 6.16(b)
Liquidating
Subsidiaries
Section 3.2(b)
Make-Whole
Calculation Methodology
Section 6.8(b)
Make-Whole
Payment
Section 6.8(b)
Material
Contracts
Section 3.10(a)
Material
Customer
Section 3.19(a)
Material
Supplier
Section 3.19(b)
Negative
Purchase Price Adjustment Amount
Section 2.4(f)
- 20 -
Term
Where
Found
Norton
Rose Fulbright
Section 10.19
Objection
Statement
Section 2.4(c)
Out-License
Section 3.18(g)
Outstanding
Securities
Recitals
Parent
Company
Preamble
Payoff
Letters
Section 2.5(a)(xiv)
Positive
Purchase Price Adjustment Amount
Section 2.4(e)
Preparer
Section 2.4(c)
Privileged
Communications
Section 10.19
Purchased
Securities
Recitals
Purchase
Price Adjustment Statement
Section 2.4(a)
Recall
Section 3.27
Recipient
Section 2.4(c)
Regulated Business
Section 6.20(a)
Restricted
Period
Section 6.14(a)
Restricted
Territory
Section 6.14(a)
Restructuring
Transactions
Section 6.11(a)
S&S
Segment
Section 3.5(e)
SAM
Section 3.23(j)
Sanctioned
Countries
Definition
of “Sanctioned Person”
Scheduled Approvals
Section 6.20(a)
SEC
Definition
of “Parent Company SEC Documents”
Seller(s)
Preamble
Seller
401(k) Plan
Section 6.9(d)
Selling
Party(ies)
Section 6.14(a)
Straddle
Period
Section 6.8(a)(iv)
Subordinated
Credit Agreement
Schedule
2.5(a)(ix) of the Company Disclosure Schedule
Tax
Contest
Section 6.8(e)
Third
Party Claim
Section 9.2(d)
Third
Party Consents
Section 6.3(a)
Transaction
Records
Section 6.7(b)
Transfer
Taxes
Section 6.8(f)
Year-End
Financial Statements
Section 3.5(a)
- 21 -
Section 1.3 Interpretation
Generally. This Agreement was prepared jointly by the parties hereto and no presumption or rule that it be construed against
the drafter will have any application in its construction or interpretation. Unless the express context otherwise requires:
(a) the
words “hereof”, “herein” and “hereunder” and words of similar import, when used in this Agreement,
shall refer to this Agreement as a whole and not to any particular provision of this Agreement;
(b) references
herein to a specific Article, Section, Subsection or Schedule shall refer, respectively, to Articles, Sections, Subsections or Schedules
of this Agreement;
(c) wherever
the word “include”, “includes” or “including” is used in this Agreement, it shall be deemed to be
followed by the words “without limitation”;
(d) references
in the singular or to “him”, “her”, “it”, “itself” or other like references, and references
in the plural or the feminine or masculine reference, as the case may be, shall also, when the context so requires, be deemed to include
the plural or singular, or the masculine or feminine reference, as the case may be;
(e) the
word “or” shall be inclusive and not exclusive (for example, the phrase “A or B” means “A or B or both,”
not “either A or B but not both”), unless used in conjunction with “either” or the like;
(f) the
word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other theory extends
and such phrase shall not mean “if”;
(g) the
word “within” with respect to a particular day or date shall mean a period ending at the end of such day or date;
(h) the
words “will” and “will not” are expressions of command and not merely expressions of future intent or expectation;
(i) the
word “threatened” means threatened in writing;
(j) each
reference to “days” shall be to calendar days;
(k) the
headings in this Agreement are for convenience and identification only and are not intended to describe, interpret, define or limit the
scope, extent or intent of this Agreement or any provision thereof;
(l) each
reference to any Contract shall be to such Contract as amended, supplemented, waived or otherwise modified from time to time;
(m) each
reference to a Law is to it as amended from time to time and, as applicable, is to corresponding provisions of successor Laws;
(n) accounting
terms which are not otherwise defined in this Agreement, or any Schedule hereto, shall have the meanings given to them under GAAP, and
to the extent that the definition of an accounting term defined in this Agreement is inconsistent with the meaning of such term under
GAAP, the definition set forth in this Agreement will control; and
- 22 -
(o) whenever
the phrase “made available,” “delivered” or words of similar import are used in reference to a document, it shall
mean the document was made available for viewing by Buyer or its Representatives in the “Project Stellar” electronic data
room hosted by Datasite (the “Data Room”), as that site existed as of 5:00 P.M. New York City time on the day
that is two (2) Business Days prior to the date of this Agreement.
ARTICLE II
purchase and sale of purchased securities
Section 2.1 Closing.
Subject to the terms and conditions of this Agreement, the closing of the Contemplated Transactions (the “Closing”)
shall take place remotely via the electronic exchange of documents and signatures as soon as practicable, but in any event not later
than the first (1st) Business Day in the calendar month following the calendar month in which (but not less than three (3) Business
Days immediately following) the date on which the last of the conditions set forth in Article VII have been satisfied or
waived (other than those conditions that by their nature can only be satisfied at the Closing), or at such other time and place as Buyer
and the Parent Company may agree in writing. The date on which the Closing actually occurs is referred to in this Agreement as the “Closing
Date.”
Section 2.2 Payment
of Advance; Purchase and Sale of Purchased Securities.
(a) On
the date hereof and as a condition to the execution and delivery of this Agreement by Sellers and the Companies, Buyer shall pay, or
cause to be paid, to an account designated by the Parent Company in cash by wire transfer of immediately available funds, the Advance
Payment, for the account of Sellers.
(b) Upon
the terms and subject to the conditions contained herein, at the Closing, Sellers shall sell to Buyer, and Buyer shall purchase from
Sellers, the Purchased Securities. At Closing, each Seller shall deliver to Buyer all Purchased Securities owned by such Seller, in each
case, free and clear of all Liens (other than restrictions on transfer pursuant to applicable securities Laws and the Companies’
Organizational Documents) by executing a stock power or securities assignment certificate, as applicable, in a customary form reasonably
satisfactory to the parties.
Section 2.3 Closing
Payments and Deliveries.
(a) At
least five (5) Business Days prior to the Closing Date, Sellers shall deliver to Buyer a statement (the “Closing Date Statement”)
setting forth in reasonable detail the Company Group’s good faith estimate of (i) Closing Net Working Capital (the “Estimated
Closing Net Working Capital”), (ii) Closing Cash (the “Estimated Closing Cash”), (iii) Closing
Funded Indebtedness (the “Estimated Closing Funded Indebtedness”), (iv) Closing Transaction Expenses (the “Estimated
Closing Transaction Expenses”), and (v) the Estimated Aggregate Closing Consideration.
(b) Prior
to the Closing, Buyer shall have the right to review the Closing Date Statement and such additional supporting documentation or data
as Buyer may reasonably request, and Buyer, Sellers and the Parent Company in good faith shall seek to resolve any differences that they
may have with respect to the computation of any of the items in the Closing Date Statement; provided that if the parties are unable
to resolve all such differences prior to the Closing, the amounts of the Estimated Closing Net Working Capital, Estimated Closing Cash,
Estimated Closing Funded Indebtedness and Estimated Closing Transaction Expenses as reflected in the Closing Date Statement shall be
used for purposes of calculating the Estimated Aggregate Closing Consideration on the Closing Date; and provided, further,
that Sellers’ failure to include in the Closing Date Statement any changes proposed by Buyer, or the acceptance by Buyer of the
Closing Date Statement, shall not limit or otherwise affect Buyer’s remedies under this Agreement, including Buyer’s right
to include such changes or other changes in the calculation of the Closing Date Statement, or constitute an acknowledgment by Buyer of
the accuracy of the Closing Date Statement provided by Sellers.
- 23 -
(c) At
the Closing, Buyer shall make the following payments by wire transfer of immediately available funds unless otherwise designated by the
payee thereof:
(i) to
the account of each Person to whom any Closing Funded Indebtedness of the type identified in clauses (a) and (b) of
the definition of “Indebtedness” that is identified on Schedule 2.5(a)(xiv) of the Company Disclosure Schedule is owed,
an amount equal to the Closing Funded Indebtedness owing to such Person in each case as set forth in the applicable Payoff Letter;
(ii) to
the account of each Person to whom Closing Transaction Expenses are owed, an amount equal to the portion of the Closing Transaction Expenses
owing to such Person;
(iii) to
an account designated by the Escrow Agent, the Escrow Amount; and
(iv) to
an account designated by the Parent Company, the Estimated Aggregate Closing Consideration less the Advance Payment, for the account
of Sellers.
Section 2.4 Purchase
Price Adjustment.
(a) As
promptly as possible, but in any event within ninety (90) days after the Closing Date, Buyer shall prepare and deliver to the Parent
Company (i) a consolidated balance sheet of the Company Group as of 12:01 a.m. New York City time as of the Closing Date and
(ii) a written statement (the “Purchase Price Adjustment Statement”) setting forth Buyer’s good faith calculation
of Closing Net Working Capital, Closing Cash, Closing Funded Indebtedness, Closing Transaction Expenses and the resulting Final Aggregate
Closing Consideration assuming the amounts set forth in the Purchase Price Adjustment Statement were final, together with such schedules
and data with respect to the determination thereof as may be reasonably appropriate to support the calculations set forth in the Purchase
Price Adjustment Statement all of which shall be (x) prepared and determined in accordance with this Agreement (including, to the
extent applicable, the calculations set forth on Schedule 1.1(a) of the Company Disclosure Schedule) and (y) based exclusively
on the facts and circumstances as they exist on or immediately prior to the Closing and shall exclude the effects of any event, act,
change in circumstances or similar development arising or occurring on or after the Closing Date. The parties agree that the purpose
of preparing the balance sheet and determining Closing Net Working Capital, Closing Cash, Closing Funded Indebtedness, Closing Transaction
Expenses and the related adjustments contemplated by this Section 2.4 is to measure the amount of Closing Net Working Capital,
Closing Cash, Closing Funded Indebtedness and Closing Transaction Expenses, and such processes are not intended to permit the introduction
of different judgments, accounting methods, policies, principles, practices, procedures, classifications or estimation methodologies
for the purpose of preparing the balance sheet or determining Closing Net Working Capital, Closing Cash, Closing Funded Indebtedness
and Closing Transaction Expenses, and that each shall be prepared or determined, as applicable, in accordance with the Accounting Principles.
If the Purchase Price Adjustment Statement is not so timely delivered by Buyer, then the Parent Company may, by written notice to Buyer
given within five (5) Business Days following such 90th day (the “Election Notice”), elect to prepare
and deliver to Buyer the Purchase Price Adjustment Statement, which it shall deliver within thirty (30) days (or such longer period as
provided in Section 2.4(b) below) after giving such notice to Buyer, and during such period, Buyer shall not be entitled
to prepare and deliver to the Parent Company a Purchase Price Adjustment Statement. If the Parent Company does not deliver an Election
Notice to Buyer within such five (5) Business Day period that it is electing to prepare and deliver to Buyer the Purchase Price
Adjustment Statement or, having elected to deliver such statement, does not do so within thirty (30) days (or such longer period as provided
in Section 2.4(b) below) following delivery of the Election Notice, the Estimated Closing Net Working Capital, Estimated
Closing Cash, Estimated Closing Funded Indebtedness, Estimated Closing Transaction Expenses and the resulting Estimated Aggregate Closing
Consideration will be deemed to be the Final Closing Net Working Capital, Final Closing Cash, Final Closing Funded Indebtedness, Final
Closing Transaction Expenses and the resulting Final Aggregate Closing Consideration, respectively.
- 24 -
(b) Following
the delivery of the Purchase Price Adjustment Statement, Buyer shall provide the Parent Company and its Representatives with reasonable
access to the Books and Records and relevant personnel and properties of the Company Group to verify the accuracy of such amounts, all
to the extent deemed reasonably necessary by the Parent Company. If the Parent Company has elected to prepare the Purchase Price Adjustment
Statement in accordance with the penultimate sentence of Section 2.4(a), then Buyer shall provide the foregoing access during
the thirty (30) day period the Parent Company has to prepare such Purchase Price Adjustment Statement; provided, however,
that in the event that Buyer does not provide such access or materials reasonably requested by the Parent Company within five (5) days
of request therefor (or such shorter period as may remain in such thirty (30) day period), such thirty (30) day period shall be extended
by one day for each additional day required for Buyer to fully respond to such request.
(c) If
the party receiving the Purchase Price Adjustment Statement (the “Recipient”) disagrees with the calculation of any
of the items set forth in the Purchase Price Adjustment Statement, the Recipient shall notify the preparer of the Purchase Price Adjustment
Statement (the “Preparer”) in writing of such disagreement (an “Objection Statement”) within thirty
(30) days after receipt of the Purchase Price Adjustment Statement by the Recipient; provided, however, that in the event
that Buyer does not provide any materials reasonably requested by the Parent Company within five (5) days of request therefor (or
such shorter period as may remain in such thirty (30) day period), such thirty (30) day period shall be extended by one day for each
additional day required for Buyer to fully respond to such request. Any Objection Statement shall specify in reasonable detail the nature
of any disagreement so asserted, and include all supporting schedules, analyses, working papers and other documentation. If the Recipient
fails to deliver an Objection Statement to the Preparer within thirty (30) days after delivery of the Purchase Price Adjustment Statement
to the Recipient (as such period may be extended pursuant to the proviso in the first sentence of Section 2.4(c)), the Purchase
Price Adjustment Statement shall be deemed final and binding on Buyer, the Company Group and Sellers for purposes of this Agreement.
- 25 -
(d) If
the Recipient delivers an Objection Statement pursuant to Section 2.4(c), Buyer and the Parent Company shall negotiate in
good faith to resolve any objection set forth in the Objection Statement and any resolution agreed to in writing by Buyer and the Parent
Company shall be final and binding upon the parties. If Buyer and the Parent Company are unable to resolve all objections set forth in
the Objection Statement within twenty (20) days of delivery of the Objection Statement by the Recipient to the Preparer (or such longer
period as Buyer and the Parent Company may agree), then the remaining disputed matters shall, at the request of either the Parent Company
or Buyer, be referred for final determination to the dispute resolution practice of KPMG LLP (the “Accounting Firm”)
within fifteen (15) days thereafter. If such firm is unable to serve, Buyer and the Parent Company shall jointly select an accounting
firm of national standing to act as the Accounting Firm. If Buyer and the Parent Company are unable to agree upon an Accounting Firm,
then the Accounting Firm shall be an accounting firm of national standing chosen by lot (after Buyer and the Parent Company shall have
each submitted two proposed firms and then excluded one firm designated by the other party); provided that such firm shall not
be the independent auditor of (or otherwise provide services under a contractual arrangement with) any of the Company Group, Buyer (or
its Affiliates) or the Parent Company. The Accounting Firm, acting as experts and not arbitrators, shall only consider those items and
amounts set forth on the Purchase Price Adjustment Statement as to which Buyer and the Parent Company have disagreed, within the applicable
time periods and on the terms specified in Section 2.4(c) and this Section 2.4(d), and must resolve all
unresolved objections in accordance with the terms and provisions of this Agreement. The scope of the disputes to be resolved by the
Accounting Firm shall be limited to correcting mathematical errors and determining whether the items and amounts in dispute were determined
in accordance with the Accounting Principles and Schedule 1.1(a) of the Company Disclosure Schedule and the Accounting Firm is not
to make any other determination. The Accounting Firm shall base its determination solely on the written submissions of the parties and
shall not conduct an independent investigation. In resolving any disputed item, the Accounting Firm shall be bound by the principles
set forth in this Section 2.4 and shall not assign a value to any item greater than the greatest value for such item claimed
by either Buyer or the Parent Company or less than the smallest value for such item claimed by either Buyer or the Parent Company. The
Accounting Firm shall deliver to Buyer and the Parent Company, as promptly as practicable and in any event within forty-five (45) days
after its appointment, a written report setting forth the resolution of any unresolved objections determined in accordance with the terms
herein. Such report shall be final and binding upon all of the parties to this Agreement and Sellers. Upon the agreement of Buyer and
the Parent Company or the decision of the Accounting Firm, or if the Recipient fails to deliver written notice of disagreement to the
Preparer within the thirty (30) day period provided in Section 2.4(c) (as such period may be extended pursuant to the
proviso in the first sentence of Section 2.4(c)), the Purchase Price Adjustment Statement, as adjusted (if necessary) pursuant
to the terms of this Agreement, shall be deemed to be the final Purchase Price Adjustment Statement for purposes of this Section 2.4
(the “Final Purchase Price Adjustment Statement”) and shall be deemed to be final and binding on Buyer, the Company
Group, the Parent Company and the other Sellers for purposes of this Agreement. The Closing Net Working Capital, Closing Cash, Closing
Funded Indebtedness and Closing Transaction Expenses, each as shown on the Final Purchase Price Adjustment Statement, shall be referred
to as the “Final Closing Net Working Capital,” the “Final Closing Cash,” the “Final Closing
Funded Indebtedness” and the “Final Closing Transaction Expenses,” respectively. The fees, expenses and
costs of the Accounting Firm shall be borne by Buyer and the Parent Company, respectively, in the proportion that the aggregate dollar
amount of the disputed items submitted to the Accounting Firm by such party that are unsuccessfully disputed by such party (as finally
determined by the Accounting Firm) bears to the aggregate dollar amount of disputed items submitted by Buyer and the Parent Company,
which allocation shall be determined by the Accounting Firm. The fees and disbursements of the Representatives of each party incurred
in connection with the preparation or review of the Purchase Price Adjustment Statement and preparation or review of any Objection Statement,
as applicable, shall be borne by such party.
- 26 -
(e) If
(i) the Final Aggregate Closing Consideration exceeds (ii) the Estimated Aggregate Closing Consideration (such excess, the
“Positive Purchase Price Adjustment Amount”), then Buyer shall pay the Positive Purchase Price Adjustment Amount in
cash to Sellers in accordance with Section 2.4(g). In addition, Sellers will be entitled to receive the amount remaining
in the Escrow Account and Buyer and the Parent Company shall deliver a joint written direction to the Escrow Agent instructing the Escrow
Agent to make payment of such amount to Sellers in accordance with Section 2.4(g).
(f) If
(i) the Estimated Aggregate Closing Consideration exceeds (ii) the Final Aggregate Closing Consideration (such excess, the
“Negative Purchase Price Adjustment Amount”), then Buyer shall be entitled to receive a payment in cash (i) out
of the Escrow Account in an amount equal to the Negative Purchase Price Adjustment Amount, and Buyer and the Parent Company shall deliver
a joint written direction instructing the Escrow Agent to make a payment to Buyer in an amount equal to the Negative Purchase Price Adjustment
Amount, and (ii) if the funds in the Escrow Account are less than the Negative Purchase Price Adjustment Amount, then the Sellers
shall, jointly and severally, pay the Buyer an amount in cash equal to the shortfall. In addition, if the amount in the Escrow Account
is greater than the Negative Purchase Price Adjustment Amount, then Buyer and the Parent Company shall deliver a joint written direction
instructing the Escrow Agent to make a payment to Sellers equal to the difference between the amount in the Escrow Account and the Negative
Purchase Price Adjustment Amount out of the Escrow Account in accordance with Section 2.4(g). Payments to Buyer pursuant
to the terms of this Section 2.4(f) shall be made to Buyer by wire transfer in immediately available funds to an account
specified by Buyer within five (5) Business Days following the date the Final Purchase Price Adjustment Statement is deemed to be
final and binding on Buyer, the Company Group and Sellers for purposes of this Agreement.
(g) Payments
to Sellers pursuant to the terms of Section 2.4(e) or Section 2.4(f) shall be made to the Parent Company
for the account of Sellers by wire transfer in immediately available funds to an account specified by the Parent Company within five
(5) Business Days following the date the Final Purchase Price Adjustment Statement is deemed to be final and binding on Buyer, the
Company Group and Sellers for purposes of this Agreement.
- 27 -
(h) Notwithstanding
anything to the contrary contained herein, the process set forth in this Section 2.4 shall be the sole and exclusive remedy
of the parties, as between the parties, for any disputes related to items required to be included or reflected in the calculation of
Closing Net Working Capital, Closing Cash, Closing Funded Indebtedness and Closing Transaction Expenses.
(i) The
parties hereto agree to treat any payment made pursuant to this Section 2.4 as an adjustment to the consideration paid to
Sellers for federal, state, local and foreign Income Tax purposes.
Section 2.5 Closing
Deliverables.
(a) At
or prior to the Closing Date, Sellers shall deliver or cause to be delivered to Buyer the following:
(i) stock
powers or membership interest assignments, dated as of the Closing Date and duly executed by the applicable Sellers, transferring the
Purchased Securities to Buyer;
(ii) an
officer’s certificate signed by an executive officer of the Parent Company to the effect that the conditions set forth in Sections
7.1(a), 7.1(c) and 7.1(d) as they pertain to the Company Group have been satisfied;
(iii) a
certificate signed by an executive officer of the Parent Company to the effect that the conditions set forth in Sections 7.1(b) and
7.1(c) as they pertain to Sellers have been satisfied;
(iv) the
Escrow Agreement executed by the Parent Company;
(v) the
Government Contract Transition Agreement, if applicable pursuant to Section 6.12(b), duly executed by the applicable Seller;
(vi) the
Transition Services Agreement, duly executed by Seller;
(vii) a
good standing certificate (or its equivalent) for each Company issued by the Secretary of the State of the state of its formation;
(viii) a
certificate from the corporate secretary of the Parent Company certifying the resolutions of Parent Company Board, authorizing the Contemplated
Transactions, and the incumbency and signatures of the officers or other authorized persons of each Seller executing this Agreement and
the Ancillary Agreements executed by such Seller;
(ix) the
certificate of formation (or its equivalent) and all amendments thereto of each Company and its respective Subsidiary, duly certified
as of a recent date by the applicable Governmental Authority of such Company or Subsidiary’s jurisdiction of formation;
- 28 -
(x) written
evidence reasonably satisfactory to Buyer of all consents of Governmental Authorities and third parties set forth on Schedule 2.5(a)(x) of
the Company Disclosure Schedule;
(xi) written
evidence reasonably satisfactory to Buyer that the Restructuring Transactions shall have been consummated;
(xii) from
each Seller, a properly completed and duly executed IRS Form W-9;
(xiii) resignation
letters, dated as of the Closing Date, of the directors of those members of the Company Group that are corporations and the managers
of those members of the Company Group that are limited liability companies and those officers of the Company Group, in each case as reasonably
requested by Buyer in writing no later than three (3) Business Days prior to the Closing Date;
(xiv) pay-off
letters (which will include release of all related Liens, including, for the avoidance of doubt, all Liens on the assets of the Company
Group and any and all assets, Intellectual Property, Information Technology, and Contracts transferred to the Company Group
pursuant to Section 6.11 and Section 6.12), reasonably satisfactory to Buyer, in respect of the Closing Funded
Indebtedness of the type identified in clauses (a) or (b) of the definition of “Indebtedness” that
is identified on Schedule 2.5(a)(xiv) of the Company Disclosure Schedule (the “Payoff Letters”); and
(xv) such
other documents, certificates, and instruments reasonably necessary to consummate the Contemplated Transactions.
(b) At
the Closing, Buyer shall deliver or cause to be delivered the following:
(i) a
certificate of an authorized officer of Buyer certifying that the conditions set forth in Section 7.2(a) and Section 7.2(b) have
been satisfied;
(ii) to
Sellers the Estimated Aggregate Closing Consideration less the Advance Payment by wire transfer of immediately available funds to the
account(s) designated by the Parent Company to Buyer at least three (3) Business Days prior to the Closing Date;
(iii) the
Escrow Amount in accordance with the Escrow Agreement;
(iv) the
Escrow Agreement, executed by Buyer and the Escrow Agent;
(v) the
Government Contract Transition Agreement, if applicable pursuant to Section 6.12(b), duly executed by Buyer;
(vi) the
Transition Services Agreement, duly executed by Buyer;
- 29 -
(vii) a
certificate from an officer of Buyer certifying the resolutions of the board of directors of Buyer authorizing the Contemplated Transactions;
and
(viii) such
other documents, certificates and instruments reasonably necessary to consummate the Contemplated Transactions.
Section 2.6 Withholding.
Buyer and the Company Group shall be entitled to deduct and withhold from any consideration otherwise payable to any Person pursuant
to this Agreement such amounts as it is required to deduct and withhold under any applicable Tax Law; provided that in the event
Buyer is required to deduct or withhold from any amounts payable pursuant to this Agreement, Buyer shall (except for any such deduction
or withholding required under clause (b) of the definition of Closing Transaction Expenses, with respect to payments properly
treated as employee compensation for applicable income Tax purposes) notify (in reasonable detail) the Parent Company, no later than
five (5) Business Days prior to the payment date, of any such withholding and the authority for such withholding and prior to making
such deduction or withholding shall use commercially reasonable efforts to cooperate with Sellers to reduce or eliminate such withholding.
To the extent such amounts are so deducted and withheld and timely paid to the appropriate Governmental Authority, such amounts shall
be treated for all purposes of this Agreement as having been paid to the applicable Person in respect to which such deduction and withholding
was made. Any Closing Transaction Expenses under clause (b) of the definition thereof that are compensatory for Tax purposes
will be remitted to the Company Group for payment through their payroll to the applicable recipient (less applicable deductions and Tax
withholdings).
ARTICLE III
representations and warranties regarding the Company group
Except
(a) as set forth in the Company Disclosure Schedule, or (b) as disclosed in the Annual Report on Form 10-K of Parent
Company for the fiscal year ended July 31, 2025 (the “Parent Company Form 10-K”) and in any Parent Company
SEC Documents filed with the SEC by the Parent Company on EDGAR since the date of the filing of the Parent Company Form 10-K to
the date of this Agreement, and as is reasonably apparent on the face of such disclosure to be applicable to the representation and warranty
set forth herein (other than any disclosures contained or referenced therein under the captions “Risk Factors,” “Forward-Looking
Statements,” and any other disclosures contained or referenced therein of information, factors, or risks that are predictive, cautionary,
or forward-looking in nature; provided that any factual information contained within such disclosures shall not be excluded),
and provided that nothing in such Parent Company SEC Documents shall be deemed to modify or qualify the representations and warranties
in Section 3.1, Section 3.2, Section 3.3, Section 3.4, Section 3.5, Section 3.7(a),
Section 3.20 and Section 3.26, Sellers represent and warrant to Buyer as follows:
Section 3.1 Organization;
Authorization.
(a) Each
of the Company Group entities is duly organized, validly existing, and in good standing under the Laws of the jurisdiction of its incorporation
or formation. Each of the Company Group entities has all requisite corporate or limited liability company, as the case may be, power
and authority to carry on its respective business as now being conducted and to own, lease, and operate its respective properties and
assets as now owned, leased, or operated, and to perform all its respective obligations under the agreements and instruments to which
it is a party or by which it is bound. The copies of the Company Group entities’ Organizational Documents, in each case as amended
to date, which have been delivered to Buyer, are complete and correct, and such instruments, as so amended, are in full force and effect.
Each of the Company Group entities is duly qualified to do business and is in good standing in each jurisdiction where the ownership
or operation of their respective properties and assets or the conduct of their respective businesses requires such qualification, except
for failures to be so qualified or in good standing that would not, individually or in the aggregate, reasonably be expected to have
a Company Material Adverse Effect or a material adverse effect on the Companies’ ability to execute, deliver or perform this Agreement
or any Ancillary Agreement, or to timely consummate the Contemplated Transactions. Each such jurisdiction in which a Company Group entity
is so qualified is listed on Schedule 3.1(a) of the Company Disclosure Schedule.
- 30 -
(b) Each
Company has full corporate or limited liability company, as the case may be, power and authority to execute and deliver this Agreement
and each of the Ancillary Agreements to which it is a party, and to perform its obligations hereunder and thereunder. The execution,
delivery and performance by each Company of this Agreement and each of the Ancillary Agreements to which it is a party has been duly
and validly authorized by such Company and no additional corporate authorization or consent by such Company or its shareholders is required
in connection therewith. This Agreement and each of the Ancillary Agreements to which each Company is a party, when executed and delivered
by the parties thereto (assuming the due authority, execution and delivery by each of the other parties hereto or thereto, as applicable),
constitutes (or will constitute) a valid and legally binding obligation of each Company, enforceable against each Company in accordance
with its terms, except as such enforcement is subject to (i) the effect of any applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or affecting creditors’ rights, and (ii) general principles of equity, whether invoked
in a court of equity or at law (together with clause (i), collectively, the “General Enforcement Exceptions”).
The Board of Directors of the Parent Company has approved and declared advisable this Agreement and the Contemplated Transactions on
the terms and subject to the conditions set forth herein. The entering into of this Agreement by the Parent Company, the Sellers and
the Companies, and the consummation of the Contemplated Transactions does not require approval of the common stockholders of the Parent
Company.
Section 3.2 Capitalization;
Subsidiaries.
(a) The
issued and outstanding membership interests, capital stock and all other equity interests in the Company Group entities are as set forth
on Schedule 3.2(a) of the Company Disclosure Schedule. Except as set forth on Schedule 3.2(a) of the Company Disclosure Schedule,
there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal or similar
rights), or agreements, orally or in writing, to purchase or acquire from the Company Group entities any membership interests or capital
stock, as the case may be, of the Company Group entities or any securities convertible into or exchangeable for membership interests
or capital stock, as the case may be, of the Company Group entities. Except for entities comprising the Company Group, the Company Group
does not have or own or control any equity interest or any proprietary interest in any corporation, joint venture, partnership, limited
liability company, or other entity.
- 31 -
(b) Schedule
3.2(b) sets forth a complete and accurate list of the indirect Subsidiaries of the Parent Company that are currently in the process
of being liquidated and wound up (the “Liquidating Subsidiaries”).
Section 3.3 Non-Contravention.
Assuming the taking of the actions contemplated by Schedule 3.4 of the Company Disclosure Schedule, the execution and delivery by the
Companies of this Agreement and the Ancillary Agreements to which the Companies are a party, the consummation of the Contemplated Transactions
and compliance by the Companies with any of the provisions hereof and thereof, will not (a) conflict with or violate any provision
of any of the Organizational Documents of any Company, (b) result in a violation or breach of, or constitute (with or without due
notice or lapse of time or both) a default or give rise to any right of termination, cancellation, or acceleration under any Material
Contract to which any Company Group entity is a party, or (c) violate or conflict with any provision of any Law binding upon any
Company Group entity, except in the case of clauses (b) and (c), as would not, individually or in the aggregate, reasonably
be expected to have a Company Material Adverse Effect.
Section 3.4 Consents
and Approvals. Except for (i) (A) the CFIUS Approval, (B) the DCSA Approval, (C) the Pre-Closing ITAR
Notice, (D) the requirements of the HSR Act, and (E) the requirements of any Antitrust Law of jurisdictions outside the
United States of America, (ii) the Government Contract Novations, (iii) the Investment Canada Act approval under
Canadian Law, or (iv) as set forth on Schedule 3.4 of the Company Disclosure Schedule, no filing or registration with, no notice to,
and no Governmental Authorization, consent, or approval of any Governmental Authority (“Governmental Consents”),
or any other Person, is required to be obtained or made by any Company Group entity in connection with the execution and delivery of
this Agreement or any Ancillary Agreements to which the Company Group entity is a party, the performance of its obligations
hereunder and thereunder, or the consummation of the Contemplated Transactions in accordance with the terms hereof and thereof.
Section 3.5 Financial
Statements.
(a) Set
forth on Schedule 3.5 of the Company Disclosure Schedule are true and correct copies of:
(i) the
unaudited consolidated balance sheet of the Company Group as of July 31, 2024 and 2025, and the related unaudited consolidated statements
of operations, stockholders’ equity and cash flows for the fiscal years then ended (the “Year-End Financial Statements”);
and
(ii) the
unaudited consolidated balance sheet of the Company Group as of April 30, 2026 (the “Latest Balance Sheet” and
such date the “Latest Balance Sheet Date”), and the related unaudited consolidated statements of operations, stockholders’
equity and cash flows for the nine-month period then ended (the “Interim Financial Statements,” and together with
the Year-End Financial Statements, collectively, the “Financial Statements”).
- 32 -
(b) The
Financial Statements and notes, if any, (i) fairly present in all material respects the consolidated financial condition and results
of operations of the Company Group as of the respective dates thereof and for the periods therein referred to, (ii) have been prepared
in accordance with GAAP except (A) as disclosed in the notes, if any, to the Financial Statements and (B) for the absence of
notes and subject to customary year-end adjustments, and (iii) have been prepared from, and are in accordance with, the accounting
records of the Company Group; provided that the Financial Statements and the foregoing representations and warranties in this Section 3.5(b) are
qualified by the fact that (x) the Business has not operated as a separate “stand-alone” entity, (y) stand-alone
financial statements have not been historically prepared for the Business, and (z) the Business has been allocated certain charges
and credits which do not necessarily reflect amounts that would have resulted from arm’s length transactions or the Business would
incur on a standalone basis. The books of account of the Company Group are complete and correct in all material respects and have been
maintained in accordance with sound business practices in all material respects.
(c) The
Company Group entities, on a consolidated basis (i) are able to pay their debts as they become due and (ii) own property which
has a fair saleable value (on a going concern basis) greater than the amounts required to pay their debts (including a reasonable estimate
of the amount of all contingent liabilities).
(d) The
Company Group entities maintain and comply in all material respects with a system of accounting controls sufficient to provide reasonable
assurances in accordance with customary business practices that: (i) their business is operated in accordance with management’s
general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of the financial statements
of the Company Group in conformity with the Accounting Principles, and to maintain accountability for items therein; (iii) access
to properties and assets is permitted only in accordance with management’s general or specific authorization; and (iv) the
recorded accountability for items is compared with the actual levels at regular intervals and appropriate actions are taken with respect
to any differences.
(e) The
financial information relating to the Parent Company’s Satellite and Space Communications segment (the “S&S Segment”)
set forth in Note 13 to the Parent Company’s consolidated audited financial statements included in the Parent Company Form 10-K
for the year ended July 31, 2025 and Note 14 to the Parent Company’s Form 10-Q for the nine months ended April 30,
2026 (i) fairly present in all material respects the results of operations of the S&S Segment as of the respective dates thereof
and for the periods therein referred to, and (ii) have been prepared in accordance with GAAP except (i) as disclosed in the
notes and (B) in the case of the financial information for the nine months ended April 30, 2026, subject to customary year-end
adjustments; provided that such financial information and the foregoing representations and warranties in this Section 3.5(e) are
qualified by the fact that (x) the Business has not operated as a separate “stand-alone” entity, (y) stand-alone
financial statements have not been historically prepared for the Business, and (z) the Business has been allocated certain charges
and credits which do not necessarily reflect amounts that would have resulted from arm’s length transactions or the Business would
incur on a standalone basis.
Section 3.6 Liabilities.
The Company Group entities have not incurred any Liabilities that would be required to be reflected on a balance sheet prepared in accordance
with the Accounting Principles, except for Liabilities (i) reflected or reserved for in the Latest Balance Sheet (including any
footnotes thereto), (ii) arising under or set forth in this Agreement or in Schedule 3.6 of the Company Disclosure Schedule, or
(iii) incurred in the ordinary course of business consistent with past practices since the Latest Balance Sheet Date.
- 33 -
Section 3.7 Absence
of Certain Changes. Since the Latest Balance Sheet Date, and except as otherwise disclosed in Schedule 3.7 of the Company Disclosure
Schedule, each Company Group entity has conducted its businesses in all material respects only in accordance with the ordinary course
of such businesses consistent with past practices, and there has not been:
(a) any
Company Material Adverse Effect;
(b) any
sale, assignment, lease, transfer, license, abandonment, or other disposition by the Company Group of any interest in the assets material
to the conduct of the Business, excluding inventory sold in the ordinary course of business consistent with past practices and obsolete
or damaged assets;
(c) any
capital expenditure or commitment for additions to property, plant, equipment or other property of the Company Group constituting capital
assets in an amount exceeding $500,000 individually;
(d) any
entry into, termination, or receipt of written notice of termination of any Contract where the dollar value of such Contract equals or
exceeds $1,000,000 on an annualized basis;
(e) any
material change in the accounting methods used by the Company Group, except as required by GAAP or applicable Law;
(f) any
loss or termination of any Material Customer or threat from any Material Customer to cancel or substantially reduce its purchase of any
of the products or services of the Company Group;
(g) any
action that, if taken from and after the execution of this Agreement until the Closing, would be restricted by Section 6.2;
or
(h) any
agreement to do any of the foregoing.
Section 3.8 Governmental
Authorizations. Except as set forth in Schedule 3.8 of the Company Disclosure Schedule, the Company Group holds and is in compliance
in all material respects with all Governmental Authorizations required under all Laws in connection with the conduct of the Business
as presently conducted. Since August 1, 2023, the Company Group has not received written notice from any Governmental Authority
revoking or threatening to revoke any material Governmental Authorization held by the Company Group or alleging that the Company Group
is in material violation of any such Governmental Authorization.
- 34 -
Section 3.9 Property.
(a) The
Company Group does not own any real property.
(b) Schedule
3.9(b) of the Company Disclosure Schedule sets forth a list of all real property leased, subleased or otherwise occupied by any
Company Group entity (the “Leased Real Property”). True and correct copies of all leases (together with all material
amendments thereto) relating to the Leased Real Property (each, a “Lease” and collectively, the “Leases”),
all of which are listed on Schedule 3.9(b) of the Company Disclosure Schedule, have been made available to Buyer. Except as set
forth on Schedule 3.9(b) of the Company Disclosure Schedule:
(i) each
Lease is a valid and enforceable Contract of the applicable Company Group entity identified on Schedule 3.9(b) of the Company Disclosure
Schedule and, to the Companies’ Knowledge, the other parties thereto, except as such enforceability may be limited by the General
Enforcement Exceptions;
(ii) the
applicable Company Group entity is not in default in any material respect under such Lease nor, to the Companies’ Knowledge, is
any other party in default in any material respect under such Lease, and to the Companies’ Knowledge, no event has occurred or
circumstance exists which, with the delivery of notice, the passage of time or both, would constitute such a default, or permit the modification
or acceleration of rent;
(iii) the
applicable Company Group entity’s possession and quiet enjoyment of the Leased Real Property under such Lease has not been disturbed
in any material respect and there are no material disputes pending or, to the Companies Knowledge, threatened with respect to such Lease;
(iv) to
the Companies’ Knowledge, no security deposit or portion thereof deposited with respect such Lease has been applied in respect
of a breach or default under such Lease which has not been redeposited in full; and
(v) the
other Person that is a party to such Lease is not an Affiliate of, and does not otherwise have any economic interest in, any Company
Group entity.
(c) All
of the buildings, structures and appurtenances that are the subject of the Leases are in good operating condition (ordinary wear and
tear excepted), are adequate and suitable for the purposes for which they are presently being used and, with respect to each, the Company
Group has adequate rights of ingress and egress for operation of the Business in the ordinary course. To the Companies’ Knowledge,
none of such buildings, structures or appurtenances that are the subject of the Leases (or any equipment therein), nor the operation
or maintenance thereof, violates any restrictive covenant or any provision of any Law or Order, or encroaches on any property owned by
others in a manner which has had and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse
Effect. No condemnation proceeding is pending or, to the Companies’ Knowledge, threatened which would preclude or impair the use
of any such property by the Company Group for the purposes for which it is currently used.
- 35 -
(d) The
Company Group has good title to, or a valid leasehold interest (subject to the General Enforcement Exceptions) in, all of the material
tangible personal property and assets used by them in the conduct of the Business, free and clear of any Liens other than Permitted Liens.
All of the tangible personal property and assets of the Company Group necessary for the conduct of the Business are in good working order,
taken as a whole, in all material respects, for their current use (subject to normal wear and tear and routine maintenance and repair).
Section 3.10 Material
Contracts.
(a) Schedule
3.10(a) of the Company Disclosure Schedule contains a list of the following Contracts (collectively, the “Material Contracts”):
(i) all
loan agreements, indentures, mortgages and guaranties to which a Company Group entity is a party or by which a Company Group entity or
any of their respective property is bound;
(ii) all
pledges, conditional sale or title retention agreements, security agreements, equipment obligations, personal property leases, lease
purchase agreements and rental agreements to which a Company Group entity is a party or by which a Company Group entity or any of their
respective property is bound, in each case securing obligations exceeding $100,000;
(iii) all
Contracts to which a Company Group entity is a party or by which a Company Group entity or any of their respective property is bound
which involve payments or receipts by a Company Group entity of more than $2,500,000 in the case of any single Contract under which full
performance (including payment) has not been rendered by all parties thereto;
(iv) all
agency, distributor, sales representative, franchise, or similar agreements to which the Company Group is a party or by which the Company
Group or any of their respective property is bound, in each case requiring payments exceeding $1,000,000 with respect to such contract
in the immediately preceding fiscal year;
(v) all
Contracts between the Company Group and its Affiliates or members under which the Company Group has any existing rights or obligations;
(vi) all
leases, whether operating, capital or otherwise, under which a Company Group entity is a lessor or lessee and under which a Company Group
entity has any existing rights or obligations;
(vii) all
Contracts relating to the acquisition or disposition of any business (whether by merger, sale/purchase of stock, sale/purchase of substantial
assets or otherwise) not yet consummated or pursuant to which a Company Group entity has material continuing obligations (including indemnification
obligations or future contingent or non-contingent “earn-out” or similar payments) following the date hereof, and any currently
effective letters of intent, term sheets or similar arrangements in connection with a potential acquisition of a business;
- 36 -
(viii) all
Contracts pursuant to which the Company Group (A) licenses any Intellectual Property of a third party (other than licenses for widely
available commercial “off-the-shelf” software with total annual license, maintenance, support and other fees not in excess
of $200,000 in the aggregate per vendor), and (B) exclusively licenses any Company Group IP to any third party;
(ix) Contracts
with Material Suppliers pursuant to which such suppliers supply products or services to the Company Group, and Contracts with Material
Customers pursuant to which such customers purchase products and services of the Business, but excluding those Contracts that have expired
or terminated in accordance with their terms;
(x) any
joint venture or limited partnership agreements or similar arrangements relating to the sharing of profits or losses;
(xi) any
Contract limiting, restricting, or prohibiting the Company Group from: (A) conducting any business activities; (B) engaging
in any line of business anywhere in the United States or elsewhere in the world; or (C) conducting any business activities with
any Person or hire or solicit any Person, or that restricts the right of a Company Group to sell to or purchase from any Person, or that
grants the other party or any third person “most favored nation” status, in each case that is reasonably expected to provide
for future payments to or from any Company Group entity in excess of $2,500,000 in any calendar year;
(xii) any
Contract under which the Company Group has, directly or indirectly, made, or committed to make, any advance, loan, extension of credit
or capital contribution to, or other investment in, any Person (other than another Company Group entity) in excess of $1,000,000;
(xiii) any
other active Contract with a Governmental Authority relating to the Business or the Company Group that is reasonably expected to provide
for future payments to or from any Company Group entity in excess of $2,500,000 in any calendar year;
(xiv) any
Contract for the employment or engagement of any individual who is a Company Employee or other Person primarily providing services to
the Company Group on a full time, part-time, consulting or other basis providing for annual compensation opportunities in excess of $300,000
(other than any “at will” contract that may be terminated by the applicable Company Group entity upon thirty (30) days or
less advance notice without Liability);
(xv) any
Contract that requires the Company Group to purchase its total requirements of any product or service from a third party;
(xvi) any
Contract providing for the Company Group to be the exclusive provider of any product or service to any Person;
- 37 -
(xvii) any
collective bargaining agreement covering employees of the Company Group;
(xviii) all
Contracts providing for any uncapped indemnification obligation;
(xix) all
Contracts involving (i) “milestone” or other similar contingent payments to be made to or by the Company Group upon
the achievement of certain milestones, including upon the achievement of regulatory or commercial milestones (excluding volume discounts),
or (ii) payment of royalties or other amounts calculated based upon any revenues or income of the Company Group, in each case that
is reasonably expected to provide for future payments to or from any Company Group entity in excess of $2,500,000 in any calendar year;
(xx) all
Contracts with respect to an interest, rate, currency or other swap or derivative transaction, other than between or among the Company
Group;
(xxi) all
Contracts entered into in connection with the settlement or other resolution of any Proceeding pursuant to which the Company Group has
any ongoing liability; and
(xxii) any
Contract not otherwise disclosed pursuant to this Section 3.10 that is material to the Company Group, taken as a whole.
(b) Each
Material Contract is a valid and binding agreement of the Company Group entity which is a party to such Material Contract, enforceable
against such Company Group entity in accordance with its terms, except as such enforcement is subject to the General Enforcement Exceptions.
Each applicable Company Group entity and, to the Companies’ Knowledge, each of the other parties to each Material Contract, have
fulfilled all material obligations required pursuant to the Material Contracts to have been performed by them. Except as would not reasonably
be expected to be material to the Company Group, (i) no Company Group entity is in breach of, or default under, any Material Contract,
and (ii) to the Companies’ Knowledge, no event has occurred which with the passage of time or giving of notice or both would
constitute such a breach or default. Except as set forth in Schedule 3.3 of the Company Disclosure Schedule, the consummation of the
Contemplated Transactions will not cause the early expiration or termination of any Material Contract, or the acceleration of any payment,
the addition of any fees or charges, the vesting or phasing out of any rights or interests, or any other obligation that would not have
arisen but for the consummation of the Contemplated Transactions. None of the Company Group has received any written notice that any
party intends to terminate, cancel or not renew any Material Contract.
Section 3.11 Employee
Benefits.
(a) Schedule
3.11(a) of the Company Disclosure Schedule contains a complete and accurate list of each Company Plan and Seller Plan. With respect
to each Company Plan, Sellers have made available to Buyer, to the extent applicable: (i) the most recent plan documents that have
been reduced to writing, (ii) the most recent trust agreements, insurance contracts, and summary plan descriptions, (iii) the
most recent determination letter from the Internal Revenue Service (“IRS”) or, in the case of a prototype plan, the
favorable opinion letter(s) issued to the prototype or volume submitter plan sponsor and (iv) annual reports filed on IRS Form 5500,
including all attached schedules, for the last three (3) plan years, (vi) any material or non-routine correspondence with any
Governmental Authority (e.g., IRS, Department of Labor, or Pension Benefit Guaranty Corporation), (vii) the most recent financial
statements and/or actuarial valuation report for any defined benefit plans, (viii) Forms 1094-C and Forms 1095-C for the three (3) most
recent calendar years, (ix) any correction filings made, or self-corrected, in the last three (3) years under either the IRS’
Employee Plans Compliance Resolution System or the U.S. Department of Labor’s Delinquent Filer Program or Voluntary Fiduciary Correction
Program, and (x) any other documents reasonably requested by the Buyer prior to the execution of this Agreement. With respect to
each Seller Plan, Sellers have made available to Buyer to the extent applicable: (A) a summary of benefits provided under each of
the Seller Plans, (B) the most recent determination letter from the IRS or, in the case of a prototype plan, the favorable opinion
letter(s) issued to the prototype or volume submitter plan sponsor and (C) annual reports filed on IRS Form 5500 for the
last three (3) plan years.
- 38 -
(b) Each
Company Plan has been administered in all material respects in accordance with its terms and all applicable Laws, including ERISA, the
Code, and the ACA. To the Companies’ Knowledge, no act or omission has occurred and no condition exists with respect to any Company
Plan or Seller Plan that would subject the Company Group or the Buyer to any fine, penalty, Tax or other Liability imposed under ERISA,
the Code, ACA, or other Law. Each Company Plan and Seller Plan that is intended to be qualified under Section 401(a) of the
Code has received a determination letter from the IRS or can rely on advisory or opinion letters issued by the IRS, in each case to the
effect that such Company Plan or Seller Plan, as applicable, is qualified under Section 401(a) of the Code, and any trust created
pursuant to any such Company Plan or Seller Plan, as applicable, is exempt from Federal Income Tax under Section 501(a) of
the Code, and, to the Companies’ Knowledge, no act or omission has occurred that would adversely affect its tax-qualification status.
(c) There
is no Proceeding pending or, to the Companies’ Knowledge, threatened before any Governmental Authority (except claims for benefits
payable in the normal operation of the Company Plans and Proceedings with respect to qualified domestic relations orders) against or
involving any Company Plan or Seller Plan asserting any rights or claims to benefits under any Company Plan or Seller Plan that could
reasonably be expected to result in any Liability to the Company Group or the Buyer. To the Companies’ Knowledge no Company Plan
trustee or administrator thereof, has engaged in any breach of fiduciary responsibility or any “prohibited transaction” (as
such term is defined in Section 406 of ERISA or Section 4975 of the Code) to which Section 406 of ERISA or Section 4975
of the Code applies and which would reasonably be expected to subject any such Company Plan or trustee or administrator thereof to the
tax or penalty on prohibited transactions imposed by Section 4975 of the Code. There is no pending or, to the Companies’ Knowledge,
threatened, proceeding, investigation, audit, or inquiry involving any Company Plan before the IRS, Department of Labor, Pension Benefit
Guaranty Corporation or any other Governmental Authority. None of the Company Group nor the Parent Company is considering filing an application
with respect to any Company Plan under the IRS’ Employee Plans Compliance Resolution System or the U.S. Department of Labor’s
Delinquent Filer Program or Voluntary Fiduciary Correction Program.
- 39 -
(d) None
of the Company Group entities nor any ERISA Affiliate has sponsored, maintained or contributed to, or has had any obligation to contribute
to (i) a “multiemployer plan” within the meaning of Section 3(37) or 4001(a)(3) of ERISA or Section 414(f) of
the Code (ii) a single employer pension plan within the meaning of Section 4001(a)(15) of ERISA for which any Company Group
entity or any ERISA Affiliate could incur Liability under Section 4063 or 4064 of ERISA, (iii) a plan that is subject to Title
IV of ERISA or Section 412 of the Code, Section 430 of the Code, or Section 302 of ERISA (iv) a “multiple employer
welfare arrangement,” as defined in Section 3(40) of ERISA, (v) a “voluntary employees” beneficiary association
(as defined under Section 501(c)(9) of the Code, or (vi) subject to any non-U.S. law.
(e) Except
for health insurance continuation coverage as required by Section 4980B of the Code or Part 6 of Title I of ERISA or other
applicable Law, no Company Group entity is under any obligation to provide medical or death benefits with respect to any Company Employee
after termination of employment.
(f) Except
as set forth in Schedule 3.11(f) of the Company Disclosure Schedule, the execution and performance of this Agreement and the transactions
alone contemplated hereby, will not: (i) result in any payment to or other compensation or benefit becoming payable to, any Company
Employee under any Company Plan or Seller Plan; (ii) result in any acceleration in the time of payment or vesting or funding of
any compensation or benefits with respect to any Company Employee under any Company Plan or Seller Plan; (iii) increase any compensation
or benefits otherwise payable to a Company Employee under any Company Plan or Seller Plan or (iv) result in the payment of an “excess
parachute payment” within the meaning of Section 280G of the Code. Neither the Company Group nor any Seller has agreed to
pay, gross up, or otherwise indemnify any Company Employee for any potential taxes imposed under Section 409A or Section 4999
of the Code.
(g) Each
Company Plan that has been terminated by any Company Group entity has been terminated in accordance with all applicable Law, including
ERISA and the Code, and no further Liability remains outstanding with respect to any such Plans. Except as set forth in Schedule 3.11(g) of
the Company Disclosure Schedule, no Company Group entity has any agreement or commitment, whether written or unwritten, to create any
additional Employee Benefit Plan, or to modify or change any existing Employee Benefit Plan in any material respect except with respect
to changes required by Law.
(h) With
respect to each Company Plan, all required or discretionary (in accordance with historical practices) contributions, payments and accruals
for all periods ending prior to or as of the Closing Date have been made on a timely basis or, to the extent not yet due, properly accrued
for on the books and records of the applicable entity. All contributions and premiums which any Company Group entity is required to pay
under the terms of a Company Plan, the Code, or ERISA have been timely paid in accordance with the requirements of such plans, the Code,
and ERISA, and none of the Company Plans or any trust(s) established thereunder have incurred any “accumulated funding deficiency”
(as defined in Section 302 of ERISA and Section 412 of the Code), whether or not waived, as of the last day of the most recent
fiscal year ended prior to the date of this Agreement. No lien has been imposed under Section 412(n) of the Code or Section 302(f) of
ERISA on the assets of the Company Group. All reports, returns, and similar documents required to be filed with any Governmental Authority
with respect to the Company Plans have been duly and timely filed.
- 40 -
(i) The
Company Group entities have timely complied with the applicable provisions of the ACA, the Health Care and Education Reconciliation Act
of 2010, and all regulations and guidance issued thereunder, including the employer shared responsibility provisions relating to the
offer of “minimum essential coverage” to “full-time” employees that is “affordable” and provides
“minimum value” (as defined in Code Section 4980H and related regulations) and the applicable employer information reporting
provisions under Code Sections 6055 and 6056 (and all related regulations) and have no Liability related to such requirements. No event
has occurred, and no condition or circumstance exists, that would reasonably be expected to subject any Company Group entity to penalties
or excise Taxes under Section 4980D or 4980H of the Code.
(j) Each
Company Plan that is a nonqualified deferred compensation plan subject to Section 409A of the Code is in compliance, in form and
operation, in all respects, with the applicable requirements of Section 409A of the Code, the regulations issued thereunder and
the guidance provided by the IRS.
(k) Each
Company Plan can be amended, terminated, or otherwise discontinued after Closing in accordance with its terms, without material Liabilities
to the Buyer or any of its Affiliates other than ordinary administrative expenses typically incurred in a termination event.
Section 3.12 Taxes.
Except as set forth in Schedule 3.12 of the Company Disclosure Schedule:
(a) All
Income Tax Returns and other material Tax Returns required to be filed by the Company Group have been timely filed (taking into account
extensions of time to file), such Tax Returns were true and correct in all material respects, and all Income Taxes and other material
Taxes required to be paid by the Company Group have been timely paid.
(b) There
is no Tax Contest currently in progress or threatened by any Taxing Authority against any Company Group entity with regard to any material
amount of Taxes. No Company Group entity has granted any extension or waiver of the statute of limitations period, or of the time for
assessment or collection, applicable to any Income Tax or Income Tax Return, which period (after giving effect to such extension or waiver)
has not yet expired (other than extensions of time to file Tax Returns obtained in the ordinary course of business).
(c) The
Company Group entities have or have caused to be withheld all material amounts of Taxes required to be so withheld from amounts owing
to any employee, creditor or third party for all periods under all applicable Law.
(d) No
written claim has been received within the last four (4) years from any Taxing Authority in any jurisdiction where a Company Group
entity does not currently file Tax Returns that such Company Group entity is subject to material Tax in that jurisdiction that would
be covered by such a Tax Return, which claim has not yet been fully resolved. All material deficiencies or adjustments for Taxes proposed,
asserted, or assessed in writing against any Company Group entity have been paid, settled, withdrawn or otherwise resolved.
- 41 -
(e) During
the past three years, no Company Group entity has been a member of an affiliated, consolidated, combined, unitary or other similar Tax
group (including any affiliated group, within the meaning of Section 1504(a) of the Code filing a consolidated federal income
Tax Return), other than a group of which a Company Group entity, a Seller or Parent is the common parent. No Company Group entity has
liability for the Taxes of another Person (other than Parent or any of its Subsidiaries) (A) pursuant to Treasury Regulation Section 1.1502-6
(or any similar provision of state, local or foreign Law), (B) as a transferee or successor or (C) by Contract (other than
any Contracts entered into in the ordinary course of business, the primary subject matter of which is not Taxes).
(f) No
Company Group entity is a party to any Tax sharing, Tax allocation or Tax indemnification agreement which will remain in effect following
the Closing (other than any Contracts entered into in the ordinary course of business, the primary subject matter of which is not Taxes).
(g) There
are no material Liens for Taxes (other than Permitted Liens) upon the assets of the Company Group entities.
(h) No
Company Group entity (i) is subject to any private letter rulings, technical advice memoranda or similar rulings of any Taxing Authority
(and no request for such a ruling is currently pending with any Taxing Authority) or (ii) has entered into any closing agreement
(within the meaning of Section 7121 of the Code and under any comparable provisions of state, local or non-U.S. Law) with any Taxing
Authority. There is no request for a consent by any Taxing Authority for a change in a method of accounting currently pending.
(i) The
classification of each of the Company Group entities for U.S. federal income tax purposes is set forth on Schedule 3.12(i) of the
Company Disclosure Schedule.
(j) No
Company Group entity has been, in the past two (2) years, a “distributing corporation” or a “controlled corporation”
in a distribution purported or intended to qualify under Section 355(a) of the Code.
(k) No
Company Group entity has participated in a “listed transaction” within the meaning of Section 6707A(c)(2) of the
Code and Treasury Regulation Section 1.6011-4.
(l) The
Company Group will not be required to include any material item of income in, or exclude any material item of deduction from, taxable
income for any taxable period (or portion thereof) ending after the Closing Date as a result of any: (i) change in any method of
accounting pursuant to Section 481 of the Code (or any similar provision of state, local or foreign Law) for any taxable period
ending on or prior to the Closing, (ii) “closing agreement” as described in Section 7121 of the Code (or any corresponding
or similar provision of state, local or other Law) executed prior to the Closing, (iii) installment sale or open transaction disposition
made prior to the Closing, (iv) advance payment or prepaid amount received or deferred revenue accrued on or prior to the Closing
other than in the ordinary course of business, (v) interest held by any Company Group entity or any of their subsidiaries in a “controlled
foreign corporation” (as that term is defined in Section 957 of the Code) on or before the Closing Date pursuant to Section 951
of the Code, or (vi) an intercompany item under Treasury Regulation Section 1.1502-13 or an excess loss account under Treasury
Regulation Section 1.1502-19.
- 42 -
(m) No
Company Group entity is, nor has it been, a United States real property holding corporation (as defined in Section 897(c)(2) of
the Code) during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(n) No
Company Group entity has deferred the payment of any “applicable employment taxes” pursuant to Section 2302 of the CARES
Act, which Taxes have not been paid. No Company Group entity has claimed the “employment retention credit” within the meaning
of Section 2301 of the CARES Act or any other Tax credit applicable to employment Taxes under the Families First Coronavirus Response
Act of 2020.
(o) Each
Company Group entity has properly collected and remitted any required material sales, use, value added and similar Taxes with respect
to sales made or services provided to its customers and has properly received and retained in all material respects any appropriate Tax
exemption certificates or other documentation for all such sales made or services provided without charging or remitting sales, use,
value added or similar Taxes that qualify as exempt from sales or similar Taxes.
(p) No
Company Group entity has entered into a gain recognition agreement pursuant to Treasury Regulation Section 1.367(a)-8.
(q) Each
Company Group entity has complied with all material requirements of transfer pricing legislation under Tax Laws applicable to it that
are subject to the transfer pricing legislation have been in compliance with that applicable transfer pricing legislation.
(r) Each
Company Group entity has, in all material respects, (a) timely registered for sales, use, value added, goods and services, and
other similar Taxes in each jurisdiction where required by applicable Law, (b) timely filed all required returns and reports
relating thereto, and (c) timely collected, remitted and paid all such Taxes required to be collected, remitted or paid. No
Company Group entity has received written notice of any material assessment, audit or claim relating to such Taxes that remains
unresolved, and no Company Group entity has any material liability for unpaid sales, use, value added, goods and services, or other
similar Taxes for any period ending on or before the Closing Date, other than liabilities adequately reflected in the Financial
Statements.
- 43 -
Section 3.13 Environmental
Compliance. The Company Group has operated the Business, and the Business is, in compliance in all material respects with all applicable
Environmental Laws. The Company Group has obtained and is in compliance in all material respects with all Environmental Permits required
by applicable Environmental Laws. To the Companies’ Knowledge, since the start of the lease term of any real property or facilities
leased or operated by the Company Group, there have been no Releases or threats of Releases by the Company Group of Hazardous Substances
at, from, in, under, or on any real property or facilities leased or operated by the Company Group that require investigation, cleanup,
response or remediation thereof (whether or not such Releases or threats of Releases were caused by operations on or originate at or
from any real property or facilities leased or operated by the Company Group). There are no Proceedings by any Governmental Authority
or other Person pending, or to the Companies’ Knowledge, threatened against the Company Group under any Environmental Law. No Company
Group entity has assumed, either contractually or by operation of law, any material Liability of any other Person under any Environmental
Law. To the Companies’ Knowledge, there are no facts, circumstances or conditions relating to the past or present business or operations
of the Company Group or any of its respective predecessors (including the Release, threatened Release, or disposal of any wastes, Hazardous
Substances or other substances at any location), or to any real property or facility at any time owned, leased, or operated by the Company
Group, or any of its predecessors, that would reasonably be expected to give rise to any Proceeding, or to any Liability, under any Environmental
Law. The Company has previously made available to Buyer all material, non-privileged environmental reports, investigations, studies,
audits and site assessments with respect to any real property or facilities owned, leased or operated by the Company Group that have
been prepared for the Company Group since January 1, 2020, as well as any Phase I environmental site assessments prepared in accordance
with standards developed by ASTM International or its predecessors in anticipation of entering into any purchase or lease of the real
property or facilities of the Company Group that have been prepared for the Company Group since January 1, 2020, to the extent such
items are in the possession or control of the Company Group, including those in the possession of its consultants. To the Companies’
Knowledge, no such Phase I prepared prior to January 1, 2020 exists. The Company has previously made available to Buyer all Environmental
Permits required by applicable Environmental Laws in connection with the operation by the Company Group of the Business.
Section 3.14 Compliance
with Laws.
(a) The
Company Group is not in violation in any material respect of any applicable Laws, except as set forth in Schedule 3.14(a) of the
Company Disclosure Schedule. Since January 1, 2022, the Company Group has not received any written notice from any Governmental
Authority alleging a material violation of such Laws by the Company Group.
(b) Since
January 1, 2022 the Company Group has obtained, maintained and is operating in material compliance with, all material Permits required
for the conduct of the Business, and all such Permits are in full force and effect.
(c) Since
January 1, 2022, the Company Group has not received any written notice from any applicable Governmental Authority alleging that
it is in material breach of or has failed to maintain any Permits which are necessary for the effective carrying on of the Business.
Section 3.15 Litigation.
Neither Seller or the Company Group is subject to any Order in which relief is sought involving, affecting, or relating to the ownership,
operation, or use of the assets of the Company Group or the conduct of the Business or which would prevent, materially delay, materially
impair or make illegal the Contemplated Transactions. Except as set forth on Schedule 3.15 of the Company Disclosure Schedule, there
are no Proceedings pending or, to the Companies’ Knowledge, threatened against, involving, affecting, or relating to the Company
Group or to the conduct of the Business or, to the Companies’ Knowledge, any of their respective officers or directors.
- 44 -
Section 3.16 Employees.
(a) The
Companies have made available to Buyer a list of the following information for each Business Employee as of the date five (5) Business
Days prior to the date of this Agreement: (i) name and employee identification number; (ii) job title; (iii) hire date;
(iv) current annual base salary or hourly wage rate; (v) work location (by city, state or country, as applicable); and (vi) classification
as exempt or non-exempt from overtime pay requirements (if applicable).
(b) The
Company Group is not a party to any collective bargaining agreement or other labor union contract applicable to Business Employees, no
union purports to be the exclusive bargaining representative of any of the Business Employees and, to the Companies’ Knowledge,
as of the date hereof there are no organizational campaigns, petitions, or other unionization activities seeking recognition of a collective
bargaining unit for Business Employees. To the Companies’ Knowledge, there are no material controversies, strikes, slowdowns, or
work stoppages pending or threatened between the Company Group and any Business Employees, and the Company Group has not experienced
any such material controversy, strike, slowdown, or work stoppage since January 1, 2024. There are no unfair labor practice
Proceedings pending against the Company Group before the National Labor Relations Board.
(c) Except
as set forth on Schedule 3.16(c) of the Company Disclosure Schedule, since January 1, 2022, there has not been any Proceeding
with respect to payment of wages, salary, or overtime pay, a violation of any occupational safety or health standards, or discrimination
in employment or employment practices, that was or is now pending or, to the Companies’ Knowledge, threatened before any Governmental
Authority with respect to any Business Employee.
(d) To
the Companies’ Knowledge, no Business Employee who is an officer or director of the Company Group is the subject of a pending allegation
of workplace sexual harassment or sexual assault, nor, to the Companies’ Knowledge, is any Business Employee who is an officer
or director of the Company Group currently accused of engaging in workplace sexual harassment or sexual assault.
Section 3.17 Insurance.
Schedule 3.17 of the Company Disclosure Schedule sets forth a list of all policies of fire, liability, casualty, life, and other insurance
maintained by or on behalf of the Company Group with respect to the Business. Such policies are in full force and effect, the Company
Group is not in material default with respect to its obligations under any of such policies, and all premiums with respect thereto covering
all periods up to and including the Closing Date have been paid or will be paid when due. No written notice of cancellation or termination
or material change in premium or denial of renewal has been received by the Company Group with respect to any such policy. To the Companies’
Knowledge, no event has occurred nor does any fact or condition exist which would render any of such policies void or voidable or subject
any of such policies to cancellation or termination or require notice under any of such policies. This Section 3.17 shall
not apply to any Employee Benefit Plans or other employee benefit arrangements.
- 45 -
Section 3.18 Intellectual
Property.
(a) The
Company Group entities own and have good and exclusive title to the Company Group Owned IP. The Company Group IP is sufficient for the
conduct of the Company business as currently conducted. To the Companies’ Knowledge, there are no third parties that claim to own
the Company Group Owned IP.
(b) The
Company Group entities may exercise, transfer, or license the Company Group Owned IP without restriction or payment to a third party.
The Company Group entities are not obligated to transfer ownership (including granting any exclusive license) of any Company Group
Owned IP, or any Intellectual Property later developed or obtained by the Company Group entities, to a third party.
(c) Schedule
3.18(c) of the Company Disclosure Schedule lists all registered Intellectual Property owned by, filed in the name of, or applied
for by, the Company Group entities (“Company Registered Intellectual Property”). The Company Registered Intellectual
Property is subsisting, valid and enforceable (excluding pending applications). Except as set forth on Schedule 3.18(c) of the Company
Disclosure Schedule, the Company Group entities own all right, title and interest in and to the Company Registered Intellectual Property
and are entitled to use such Company Registered Intellectual Property in the operation of their respective businesses as currently conducted,
free and clear of all Liens except Permitted Liens. The Company Group has paid all fees and filed all documents due prior to the date
hereof that are necessary to obtain or maintain such Company Group IP in force or the exclusive rights thereto.
(d) To
the Companies’ Knowledge, the products of the Company Group entities (the “Companies Products”) and the conduct
of the Business by the Company Group entities has not, since January 1, 2022 infringed, misappropriated, or otherwise violated,
and does not currently infringe, misappropriate, or otherwise violate the Intellectual Property of any third party. The Company Group
entities have not received written notice of a claim that the conduct of the Business infringes, misappropriates, or otherwise violates
the Intellectual Property of a third party.
(e) To
the Companies’ Knowledge, no third party has infringed, misappropriated or violated any Company Group Owned IP.
(f) Schedule
3.18(f) of the Company Disclosure Schedule lists all contracts, agreements and licenses to which the Company Group entities are
a party that include a license to use any Intellectual Property of a third party (other than licenses for widely available commercial
“off-the-shelf” software with total annual license, maintenance, support and other fees not in excess of $200,000 in the
aggregate per vendor) (the listed items, “In-Licenses”).
(g) Schedule
3.18(g) of the Company Disclosure Schedule lists all contracts, agreements and licenses to which the Company Group entities are
a party that include license to or an assignment of Company Group IP (other than non-exclusive licenses granted to customers in the ordinary
course of business) (the listed items, “Out-Licenses”; together with the In-Licenses, the “IP Contracts”).
The consummation of the transactions contemplated hereby will not, under any Contract to which the Company Group entities are a party
(i) result in the release of any source code for any Companies Proprietary Software or in the granting of any right or licenses
to any Company Group Owned IP to any third party; (ii) result in the Company Group entities being required to grant to any third
party any rights to the Company Group Owned IP; (iii) subject any Company Group entity to any non-compete or other restriction on
the operation or scope on its business or (iv) obligate any Company Group entity to pay any royalties or other amounts to any third
party in excess of those payable by the Company Group entity prior to the Closing. There are no pending disputes regarding the scope
of any In-License, or performance under such In-License, including with respect to any payments to be made or received by the Company
Group entities thereunder.
- 46 -
(h) No
written claim or complaint has, to the Companies Knowledge, been made by any third party, or is pending, against, a Company Group entity,
and no written notice of any such claim or complaint has been received by a Company Group entity, with respect to breach of an Out-License
by the Company Group entity with respect to any Companies Products (including with respect to any defect, deficiency of any product,
or quality of any service) that has not been remedied. The Company Group IT has not experienced any material defects in the past three
years in their operation and use, have not been subject to any material security breaches, and do not contain any disabling codes or
instructions, “time bombs,” “Trojan horses,” “back doors,” “trap doors,” “worms,”
viruses, bugs, faults or other software routines or hardware components that (i) enable or assist any Person to access without authorization
or disable or erase the Companies Group IT, or (ii) otherwise materially adversely affect the functionality of the Company Group
IT.
(i) Since
January 1, 2024, the Company Group entities have taken and currently take commercially reasonable steps to maintain the secrecy
of trade secrets constituting Company Group Owned IP. Without limiting the generality of the foregoing, the Company Group entities have,
and enforce, a policy requiring each Employee or consultant involved in the creation of Company Group IP to execute a proprietary information,
confidentiality and invention assignment Contract substantially in the form made available to Buyer (each a “Proprietary Information
Agreement”). All current and former Employees and consultants of the Company Group entities at any time involved in the creation
of Company Group IP have executed such Proprietary Information Agreement.
(j) No
government funding, facilities or resources of a university, college, other educational institution or research center or funding from
third parties was used in the development of the Company Group Owned IP, and no Governmental Authority, university, college, other educational
institution or research center has any claim or right in or to such Company Group Owned IP. To the Companies Knowledge, no current or
former employee, consultant, or independent contractor of a Company Group entity is (or was at any time during such person’s engagement
with the Company Group entity) bound by any agreement restricting such employee, consultant, or independent contractor from performing
such employee’s, consultant’s, or independent contractor’s duties for the Company Group entity or in breach of any
agreement with any former employer or other Person concerning Intellectual Property or confidentiality due to such employee’s,
consultant’s, or independent contractor’s activities as an employee, consultant, contractor, or agent of the Company Group
entity.
(k) Schedule
3.18(k) of the Company Disclosure Schedule accurately identifies (i) each item of Publicly Available Software that has been
used in, incorporated into, integrated, bundled or distributed with, any Companies Product, (ii) the applicable license terms for
each such item of Publicly Available Software, (iii) the Companies Product(s) to which each such item of Publicly Available
Software relates and (iv) whether such Publicly Available Software has been modified by the Company Group entities. The Company
Group entities do not use Publicly Available Software in a manner that would condition the license governing such on the Company Group
entities (A) distributing or disclosing Companies Proprietary Software in source code form; (B) licensing the Companies Proprietary
Software for the purpose of making modifications or derivative works; or (C) licensing or distributing the Companies Proprietary
Software at no charge.
- 47 -
(l) The
Company Group IT is in good working condition and is sufficient in all material respects for the operation of the Business as currently
conducted. The Company Group IT has not experienced any materially malfunction or failure within the past twelve (12) months. The Company
Group has taken commercially reasonable steps to maintain the Company Group IT in all material respects in accordance with the Company
Group’s internal standards as well as any applicable warranties or other user instructions from suppliers.
Section 3.19 Customers
and Suppliers.
(a) Schedule
3.19(a) of the Company Disclosure Schedule lists the top ten (10) customers of the Company Group, calculated by reference to
annual revenues for the fiscal years ended July 31, 2024 and July 31, 2025 (each, a “Material Customer”).
(b) Schedule
3.19(b) of the Company Disclosure Schedule lists top ten (10) suppliers of products or services to the Company Group, calculated
by reference to annual spending of the Business for the periods consisting of the fiscal years ended July 31, 2024 and July 31,
2025 (each, a “Material Supplier”).
(c) Since
July 31, 2025, no material adverse change has occurred in the business relationship of the Company Group with any of the Material
Customers or Material Suppliers. Except as set forth on Schedule 3.19(c) of the Company Disclosure Schedule, none of the Material
Customers or Material Suppliers has terminated or ceased, or has significantly modified the volume or amount of, or pricing of, its business
with the Company Group or the types of services or products or margin on products or services, or has indicated in writing any intent
to do any of the foregoing.
Section 3.20 No
Brokers. Other than TD Securities (USA) LLC, no agent, broker, investment banker, or other Person is or will be entitled to receive
from the Company or Sellers any broker’s or finder’s fee or any other commission or similar fee in connection with any of
the Contemplated Transactions.
Section 3.21 Related
Party Transactions. Other than as set forth on Schedule 3.21 of the Company Disclosure Schedule, there are no existing or proposed
agreements, arrangements, understandings, or transactions between any Seller, any Company Group entity, or any officer, member, manager,
director or Affiliate (other than Subsidiaries) of such Seller or Company Group entity on the one hand and any other Company Group entity
on the other hand.
- 48 -
Section 3.22 International
Trade and Anti-Corruption Matters.
(a) Neither
the Company Group entities, any director or officer of any Company Group Entities nor, to the Companies’ Knowledge, any employee,
agent, controlled affiliate or other person acting on behalf of the Company Group entities has (i) used any corporate funds for
any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or
indirect unlawful payment to any U.S. or foreign government official or employee; (iii) violated or is in violation of any provision
of any Anti-Corruption Law; or (iv) made, offered, or taken an act in furtherance of any bribe, rebate, payoff, influence payment,
kickback or other unlawful payment. The Company Group entities have instituted and maintain policies and procedures reasonably
designed to promote compliance with all applicable anti-bribery Laws or Anti-Corruption Laws.
(b) Except
as set forth in Schedule 3.22(b) of the Disclosure Schedules, no Company Group entity nor, to the Companies’ Knowledge, any
director, officer, or employee of the any Company Group entity is currently, or has been in the last five (5) years: (i) a
Sanctioned Person; (ii) engaged in any dealings or transactions with any Sanctioned Person or Sanctioned Country; (iii) engaged
in any export, reexport, transfer or provision of any goods, software, technology, data, or service without, or exceeding the scope of,
any required or applicable licenses or authorizations under all applicable International Trade Laws; (iv) otherwise in violation
of applicable International Trade Laws; or (v) located, organized or resident in a country or territory that is a Sanctioned Country,
or whose government is, the subject of comprehensive Sanctions (currently, Cuba, Iran, North Korea, the Crimea region of Ukraine,
and such other regions of Ukraine as have been comprehensively sanctioned by the United States, including the so-called Donetsk People’s
Republic and the Luhansk People’s Republic). No Company Group entity is engaged in any dealings or transactions with or for
the benefit of a Sanctioned Person, or with or in a Sanctioned Country, and no Company Group entity has any plans to engage in any unlawful
dealings or transactions with Sanctioned Persons, or with or in any Sanctioned Country. The operations of the Company Group entities
are and have been conducted at all times in compliance with applicable Sanctions and International Trade Laws. The Company Group
has established and maintains reasonable internal controls and procedures appropriate to promote compliance with the requirements of
Sanctions and International Trade Laws.
(c) The
operations of the Company Group entities are and since January 1, 2020 have been conducted in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the anti-money laundering
statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines,
issued, administered or enforced by any governmental agency (collectively, the “Anti-Laundering Laws”) and no Proceeding
by or before any court or Governmental Authority, authority or body or any arbitrator involving the Company Group entities with respect
to the Anti-Laundering Laws is pending or, to the Companies’ Knowledge, threatened.
(d) Neither
the Company Group entities nor, to the Companies’ Knowledge, any director, officer, or employee of any Company Group entity, nor
any agent, controlled affiliate or other person acting on behalf of the Company Group entities is or has been the subject of any Proceeding
(to the Companies’ Knowledge with respect to investigations) by any Governmental Authority regarding any violation or alleged violation
under any International Trade Laws in the past five years. Further, no such Proceedings are pending or, to the Companies’ Knowledge,
threatened, nor do the Sellers or Company Group entities have reason to know or anticipate such Proceedings.
- 49 -
Section 3.23 Government
Contracts.
(a) Schedule
3.23(a) of the Company Disclosure Schedule sets forth a true, correct and complete list of each Government Contract that is currently
in effect or which remains open to audit periods.
(b) Schedule
3.23(b) of the Company Disclosure Schedule sets forth a true, correct and complete list of each outstanding Government Bid for which
an award remains pending.
(c) Except
as set forth in Schedule 3.23(c) of the Company Disclosure Schedule, (i) the Company Group entities have complied in all material
respects with all Laws applicable and pertaining to each Government Contract and each Government Bid (or in any certificate, statement,
list, schedule or other documents submitted or furnished in connection with the foregoing).
(d) Except
as set forth in Schedule 3.23(d) of the Company Disclosure Schedule, since January 1, 2024, the Company Group entities have
not (i) breached or violated any Government Contract in any material respect; (ii) been suspended or debarred from bidding
on government contracts by a Governmental Authority, nor have any managers, directors, officers, or employees, or, to the Companies’
Knowledge, consultants or agents of the Company Group entities been suspended or debarred; (iii) other than routine matters, been
audited or, to the Companies’ Knowledge, investigated by any Governmental Authority with respect to any Government Contract; (iv) made
any disclosure with respect to any material irregularity, misstatement or omission involving a Government Contract; (v) received
claims or requests for equitable adjustment from any Governmental Authority (or from any prime contractor, higher or lower tier subcontractor,
vendor or other third party) arising under or relating to any Government Contract or Government Bid; (vi) received any written notice
of breach, cure, show cause or default from any Governmental Authority (or from any prime contractor, higher or lower tier subcontractor,
vendor or other third party) with respect to any Government Contract; or (vii) had any Government Contract terminated by any Governmental
Authority (or by any prime contractor, higher or lower tier subcontractor, vendor or other third party) for failure to perform.
(e) No
cost incurred or invoice rendered by the Company Group entities pertaining to any Government Contract is currently being questioned or
challenged by any Governmental Entity or any other Person, has been disallowed (and the Company Group entities have no reason to believe
that any cost or invoice will be disallowed) by any Governmental Entity or has been or now is, the subject of an investigation, except
for customary reviews of invoices by the Defense Contract Management Agency or the Defense Contract Audit Agency, the results of which,
in the aggregate, would not be material to the Company Group, taken as a whole. All invoices and claims, including requests for progress
payments and provisional cost payments, submitted by the Company Group entities to any Governmental Entity with respect to any Government
Contract or Government Bid were correct and complete in all material respects as of their submission date.
- 50 -
(f) Except
as set forth in Schedule 3.23(f) of the Company Disclosure Schedule, the Company Group entities are in compliance in all material
respects with all national security obligations, including those specified in the National Industrial Security Program Operating Manual,
DOD 5220.22-M (February 28, 2006), as amended.
(g) Schedule
3.23(h) of the Company Disclosure Schedule sets forth a true, correct and complete list of all facility security clearances held
by the Company Group entities and all personnel security clearances held by the Company Group’s Representatives. The Company Group
entities hold and at all relevant times held at least a “satisfactory” rating from DCSA with respect to the facility security
clearances. The clearances set forth in Schedule 3.23 of the Company Disclosure Schedule are all of the facility and personnel security
clearances necessary to conduct the business of the Company Group entities as currently being conducted. No Company Group entity has
allowed any person without the required facility or personnel security clearance to access classified materials protected by any clearance
listed in Schedule 3.23(h) of the Company Disclosure Schedule.
(h) The
Company Group entities are and since January 1, 2024 have been in compliance in all material respects with all applicable Laws pertaining
to any Government Contracts. The Company Group entities have not, in obtaining or performing any Government Contract, violated in any
material respect any applicable aspect or provision of any of the following: (i) the Federal Acquisition Regulation (“FAR”)
or any applicable agency supplement thereto, including flowing down all relevant and applicable FAR and supplemental clauses to subcontractors
or vendors, and monitoring compliance with same; (ii) the False Claims Act or similar state or foreign law; (iii) the False
Statements Act or similar state or foreign law; (iv) the Procurement Integrity Act or similar state law; (v) any drug-free
workplace requirements; (vi) conflict of interest requirements; (vii) lobbying requirements; (viii) gifts and gratuities
prohibitions; or (ix) cybersecurity and information security requirements, including but not limited to those requirements imposed
pursuant to 48 C.F.R. § 52.204-21, 48 C.F.R. § 252.204-7008, 48 C.F.R. § 252.204-7012, 48 C.F.R. § 252.204-7019,
and 48 C.F.R. § 252.204-7020. The Company Group entities have not experienced any cyber incident that would require reporting to
any customer or Governmental Authority in connection with any Government Contract.
(i) All
representations, certifications, invoices, and claims submitted for payment, reimbursement, or adjustment and statements executed, acknowledged,
or submitted by or on behalf of the Company Group entities to a Governmental Authority or any other Person were current, accurate, and
complete in all material respects as of their respective dates and the Company Group entities have provided any reasonably required updates,
and the Company Group entities have not been under any obligation to disclose to any Governmental Authority or any other Person with
respect to any alleged or potential irregularity, misstatement, or omission arising under or relating to a Government Contract or Government
Bid, nor to the Companies’ Knowledge, are there any facts that could reasonably be expected to result in the Company Group entities
having such obligation.
(j) The
Company Group entities are currently registered in the U.S. System for Award Management (“SAM”) with an active listing,
and all representations and certifications made by the Company Group entities relating to its SAM registration are complete and accurate.
- 51 -
(k) As
it pertains to any Government Contract, (i) the Company Group entities have not conducted or initiated any internal investigation
into issues that could constitute a material violation of a Government Contract or any Laws relating to a Government Contract; (ii) the
Company Group entities have not entered into any consent order or administrative agreement; (iii) the Company Group entities have
not undertaken any internal investigation relating directly or indirectly thereto; and (iv) to the Companies’ Knowledge, there
are no external investigations relating directly or indirectly thereto;
(l) Neither
the Company Group entities nor any of their principals (as defined by FAR 52.209-5 or other applicable Laws), their representatives,
current employees, directors, or, to the Companies’ Knowledge, individual independent contractors have, in the past two (2) years,
been under, are currently subject to, or, to the Companies’ Knowledge, threatened with (i) any allegation of fraud, false
claims, or overpayments, (ii) any administrative, civil, or criminal investigation, indictment, information lawsuit, subpoena, document
request, administrative proceeding, or audit pertaining to an alleged or potential violation of any requirement, regulation, or Law,
including but not limited to the commission of fraud or a criminal offense in connection with any Government Contract, violation of antitrust
laws or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, evasion,
violating criminal tax laws, or receiving stolen property, or (iii) actual or proposed debarment, suspension, or exclusion from
participation in the award or performance of any Government Contract. To the Companies’ Knowledge, there exist no facts or circumstances
that are reasonably likely to result in a suspension or debarment proceeding or ineligibility on the part of the Company Group entities
or any of their principals or employees.
(m) The
Company Group entities have not entered into any financing arrangement or assignment of proceeds with respect to the performance of any
Government Contract.
(n) The
Company Group entities have not violated FAR 52.203-5 (Covenant Against Contingent Fees) and no payment has been made by the Company
Group entities to any Person that is or was contingent upon the award of any Government Contract, which would be in violation of the
FAR or any other applicable Law.
(o) No
negative determinations of responsibility have been received by the Company Group entities or, to the Companies’ Knowledge, issued
against the Company Group entities in connection with any Government Contract.
(p) The
Company Group entities have included all provisions in its subcontracts required by its Government Contract customers to be incorporated
into such subcontracts, including all mandatory flow-down provisions established by the FAR or any supplement (including but not limited
to the Defense Federal Acquisition Regulation Supplement) thereto, and the Company Group entities have monitored any subcontractors for
compliance with FAR provisions as required and the Company Group entities are not aware of any violation or alleged violation of any
required flow down provisions by its subcontractors.
(q) The
Company Group entities maintain systems of internal controls for their operations that are in material compliance with all relevant and
applicable requirements of any Government Contracts.
- 52 -
(r) The
Company Group entities have complied in all material respects with supply chain restrictions required by its Government Contracts, including
but not limited to domestic preference requirements imposed pursuant to the Buy American Act, Trade Agreements Act, Section 8125
of the Consolidated Appropriations Act of 2016 (Pub. L. No. 114-13, § 8125), the Cargo Preference Act and Military Cargo Preference
Act, and specialty metal restrictions. Consistent with and as defined by 48 C.F.R. § 52.204-24, 48 C.F.R. § 52.204-25, and
48 C.F.R. § 52.204-26, the Company Group entities have not, under any Government Contract, provided any (i) covered telecommunications
equipment or services, or (ii) equipment, system, or service that uses covered telecommunications equipment or services as a substantial
or essential component of any system, or as critical technology as part of any system. Except as set forth on Schedule 3.23(s) of
the Company Disclosure Schedules, to the extent FAR 52.204-25(b)(2) applies to a member of the Company Group, since August 14,
2020, such member has not used any equipment, system, or service that uses covered telecommunications equipment or services.
Section 3.24 Privacy
and Data Security.
(a) The
Company Group entities are, and since January 1, 2022 have been, in compliance in all material respects with, not in violation in
any material respect of, and have not received any written notices of violation with respect to (i) all Data Protection Laws, regarding
the collection, storage, processing, use and transfer of Personal Data, (ii) the Company Group entities’ privacy policies,
and (iii) Contracts with contractual obligations or representations with respect to Personal Data (collectively, “Companies
Privacy Obligations”). The Company Group entities have made and completed any and all necessary filings, disclosures and registrations
under all applicable Data Protection Laws with any relevant Governmental Authority, to the extent applicable, and all such filings, disclosures
and registrations are current and up-to-date.
(b) The
Company Group entities have established and implemented commercially reasonable administrative, technical and physical safeguards to
protect the confidentiality, integrity and security of Personal Data in its possession, custody or control against unauthorized access,
use, disclosure or other misuse. Except as otherwise would not be material to the Company Group entities or their operations, the
Company Group entities have not experienced any loss, damage, or unauthorized access, disclosure, use or breach of security of any Personal
Data in their possession, custody or control.
(c) The
Company Group entities have a privacy policy regarding the collection, storage, use and disclosure of Personal Data in connection with
their operations, and the Company Group entities have been in compliance with such privacy policy in all material respects. The
Company Group entities have posted their privacy policies in a clear and conspicuous location on all websites and any mobile applications
owned or operated by the Company Group entities.
(d) All
sales and marketing activities by the Company Group entities are and since January 1, 2022 have been in compliance with all applicable
Privacy Laws in all material respects, including (to the extent applicable) those requiring the Company Group entities to obtain consent
from potential customers to receive such sales and marketing materials. The consummation of the transactions contemplated by this
Agreement will not violate any Companies Privacy Obligation, nor require the Company Group to provide any notice to, or seek any consent
from, any employee, customer, supplier, service provider or other third-party under any Company privacy policy.
- 53 -
Section 3.25 Books
and Records. As of the date hereof, the books of account, ledgers, order books, records and documents of the Company Group entities
accurately and fairly reflect in all material respects information relating to the business of the Company Group entities, the location
and collection of its material assets, and the nature of all material transactions giving rise to the obligations or accounts receivable
of the Company Group entities.
Section 3.26 Operation
of the Business.
(a) After
giving effect to the transactions contemplated by Section 6.11 and Section 6.12, the Company Group entities own
all the rights, property and assets, free and clear of all Liens (other than Permitted Liens), necessary to conduct the Business as currently
conducted.
(b) After
giving effect to the transactions contemplated by Section 6.11 and Section 6.12, no part of the Business shall
be operated by Parent Company or any of its Affiliates other than the Company Group entities.
Section 3.27 Product
Liability. Except as set forth in Schedule 3.27 of the Disclosure Schedule, in the last five years there has not been any product
recall or material post sale warning or similar action (a “Recall”) conducted with respect to any Companies Products
manufactured (or to be manufactured), shipped, marketed, sold or delivered by or on behalf of the Company Group entities, or, to the
Companies’ Knowledge, any investigation or consideration of or decision made by any Governmental Authority concerning whether to
undertake or not undertake any Recall.
Section 3.28 Disclaimer
of Other Representations and Warranties. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, EXCEPT FOR THE REPRESENTATIONS
REGARDING THE COMPANY GROUP EXPRESSLY AND SPECIFICALLY SET FORTH IN THIS ARTICLE III, THE REPRESENTATIONS OF SELLERS EXPRESSLY
AND SPECIFICALLY SET FORTH IN ARTICLE IV (IN EACH CASE AS QUALIFIED BY THE COMPANY DISCLOSURE SCHEDULE) AND THE REPRESENTATIONS
AND WARRANTIES OF SELLERS EXPRESSLY AND SPECIFICALLY SET FORTH IN ANY ANCILLARY AGREEMENT AND ANY CERTIFICATE DELIVERED PURSUANT TO THIS
AGREEMENT, NONE OF THE COMPANY GROUP, SELLERS OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, AFFILIATES, REPRESENTATIVES OR ADVISORS
OR ANY OTHER PERSON HAS MADE, OR SHALL BE DEEMED TO HAVE MADE, ANY REPRESENTATION OR WARRANTY.
- 54 -
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
Except
as set forth in the Company Disclosure Schedule attached hereto, each Seller represents and warrants to Buyer as follows:
Section 4.1 Organization;
Authorization.
(a) Such
Seller is duly organized, validly existing and in good standing under the Laws of the jurisdiction of its formation and such Seller has
all requisite corporate power and authority to carry on its respective business as now being conducted and to own, lease and operate
its respective properties and assets as now owned, leased or operated, and to perform all its respective obligations under the agreements
and instruments to which it is a party or by which it is bound. Each Seller is duly qualified to do business and is in good standing
in each jurisdiction where the ownership or operation of their respective properties and assets or the conduct of its respective businesses
requires such qualification, except for failures to be so qualified or in good standing that would not, individually or in the aggregate,
reasonably be expected to have a material adverse effect on such Seller’s ability to execute, deliver or perform this Agreement
or any Ancillary Agreement to which such Seller is a party, or to timely consummate the Contemplated Transactions.
(b) Such
Seller has full corporate power and authority to execute and deliver this Agreement and each of the Ancillary Agreements to which it
is a party, and to perform its obligations hereunder and thereunder. The execution, delivery and performance by such Seller of this Agreement
and each of the Ancillary Agreements to which it is a party has been duly and validly authorized by such Seller and no additional corporate
authorization or consent by such Seller or its equityholders is required in connection therewith. This Agreement and each of the Ancillary
Agreements to which such Seller is a party, when executed and delivered by the parties thereto (assuming the due authority, execution
and delivery by each of the other parties hereto or thereto, as applicable), constitutes (or will constitute) a valid and legally binding
obligation of such Seller, enforceable against such Seller in accordance with its terms, except as such enforcement is subject to General
Enforcement Exceptions.
Section 4.2 Ownership
of Outstanding Securities. Such Seller owns, beneficially and of record, the Outstanding Securities set forth opposite its name on
Schedule 3.2 of the Company Disclosure Schedule. Such Seller has not granted any outstanding options, warrants, or rights (including
conversion or preemptive rights and rights of first refusal or similar rights), or entered into any agreements, orally or in writing,
granting any Person the right to purchase or acquire from such Seller any Outstanding Securities or any other equity securities of the
Company.
Section 4.3 Non-Contravention.
Assuming the taking of the actions contemplated by Schedule 3.4 of the Company Disclosure Schedule, the execution and delivery by such
Seller of this Agreement and the Ancillary Agreements to which such Seller is a party, the consummation of the Contemplated Transactions
and compliance by such Seller with any of the provisions hereof and thereof, will not (a) conflict with or violate any provision
of any of the Organizational Documents of such Seller, (b) result in a violation or breach of, or constitute (with or without due
notice or lapse of time or both) a default or give rise to any right of termination, cancellation, or acceleration under any Contract
to which such Seller is a party, or (c) violate or conflict with any provision of any Law binding upon such Seller, except in the
case of clauses (b) and (c), as would not, individually or in the aggregate, reasonably be expected to have a material
adverse effect on such Seller’s ability to execute, deliver or perform this Agreement or any Ancillary Agreement to which such
Seller is a party, or to timely consummate the Contemplated Transactions.
- 55 -
Section 4.4 Consents
and Approvals. Except for (i) (A) the requirements of the HSR Act, (B) the requirements of any Antitrust Law of
jurisdictions outside the United States of America, (C) the CFIUS Approval, (D) the DCSA Approval, (E) the
Pre-Closing ITAR Notice, (ii) the Government Contract Novations, (iii) the Investment Canada Act approval under Canadian Law,
and (iv) as set forth on Schedule 3.4 of the Company Disclosure Schedule, no Governmental Consents, or consent of any other Person,
or Environmental Permit is required to be obtained or made by such Seller in connection with the execution and delivery of this
Agreement or any Ancillary Agreements to which such Seller is a party, the performance of their obligations hereunder and
thereunder, or the consummation of the Contemplated Transactions, in accordance with the terms hereof and thereof.
Section 4.5 Disclaimer
of Other Representations and Warranties. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, EXCEPT FOR THE REPRESENTATIONS
REGARDING THE COMPANY GROUP EXPRESSLY AND SPECIFICALLY SET FORTH IN ARTICLE III, THE REPRESENTATIONS OF SELLERS EXPRESSLY
AND SPECIFICALLY SET FORTH IN THIS ARTICLE IV (IN EACH CASE AS QUALIFIED BY THE COMPANY DISCLOSURE SCHEDULE) AND THE REPRESENTATIONS
AND WARRANTIES OF SELLERS EXPRESSLY AND SPECIFICALLY SET FORTH IN ANY ANCILLARY AGREEMENT AND IN ANY CERTIFICATE DELIVERED PURSUANT TO
THIS AGREEMENT, NONE OF THE COMPANY GROUP, THE SELLERS OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, AFFILIATES, REPRESENTATIVES OR
ADVISORS OR ANY OTHER PERSON HAS MADE, OR SHALL BE DEEMED TO HAVE MADE, ANY REPRESENTATION OR WARRANTY.
ARTICLE V
representations and warranties of Buyer
Buyer
represents and warrants to Sellers as follows:
Section 5.1 Organization;
Authorization.
(a) Buyer
is a corporation duly organized, validly existing and in good standing under the Laws of the State of Delaware. Buyer has all requisite
corporate power and authority to carry on its business as now being conducted and to own, lease, and operate its properties and assets
as now owned, leased, or operated, and to perform all its obligations under the agreements and instruments to which it is a party or
by which it is bound. Buyer is duly qualified to do business and is in good standing in each jurisdiction where the ownership or operation
of its properties and assets or the conduct of its business requires such qualification, except for failures to be so qualified or in
good standing that would not, individually or in the aggregate, reasonably be expected to adversely affect in any material respect Buyer’s
ability to execute, deliver or perform this Agreement or any Ancillary Agreement, or to timely consummate the Contemplated Transactions.
- 56 -
(b) Buyer
has full corporate power and authority to execute and deliver this Agreement and each of the Ancillary Agreements to which it is a party,
and to perform its obligations hereunder and thereunder. The execution, delivery and performance by Buyer of this Agreement and each
of the Ancillary Agreements to which it is a party has been duly and validly authorized by Buyer and its equityholders and no additional
corporate authorization or consent by Buyer or its equityholders is required in connection therewith. This Agreement and each of the
Ancillary Agreements to which Buyer is a party, when executed and delivered by the parties thereto (assuming the due authority, execution
and delivery by each of the other parties hereto or thereto, as applicable), constitutes (or will constitute) a valid and legally binding
obligation of Buyer enforceable against Buyer in accordance with its terms, except as such enforcement is subject to General Enforcement
Exceptions.
Section 5.2 Non-Contravention.
Assuming the taking of the actions contemplated by Schedule 3.4 of the Company Disclosure Schedule, the execution and delivery by Buyer
of this Agreement and the Ancillary Agreements to which it is a party, consummation of the Contemplated Transactions and compliance by
Buyer with any of the provisions hereof and thereof, will not (a) conflict with or violate any provision of any of its Organizational
Documents, (b) result in a violation or breach of, or constitute (with or without due notice or lapse of time or both) a default
or give rise to any right of termination, cancellation, or acceleration under any Contract to which it is a party, or (c) violate
or conflict with any provision of any Law binding upon it, except in the case of clauses (b) and (c), as would not
individually or in the aggregate, reasonably be expected to materially adversely affect its ability to execute, deliver or perform this
Agreement or any Ancillary Agreement to which it is a party, or to timely consummate the Contemplated Transactions. Neither Buyer nor
any of its Affiliates are subject to any Contract that would materially impair or delay Buyer’s ability to consummate the Contemplated
Transactions.
Section 5.3 Regulatory
Approvals. Except for (i) the requirements of the HSR Act, (ii) the requirements of any Antitrust Law of jurisdictions
outside the United States of America (if and to the extent any of the foregoing Laws may apply), (iii) the CFIUS Approval, and (iv) the
DCSA Approval, no Governmental Consent, or consent of any other Person, is required to be obtained or made by Buyer in connection with
the execution and delivery of this Agreement or any Ancillary Agreement, the performance of its obligations hereunder and thereunder,
or the consummation by Buyer of the Contemplated Transactions in accordance with the terms hereof and thereof, except for any consent
the failure of which to obtain would not, individually or in the aggregate, reasonably be expected to materially adversely affect its
ability to execute, deliver or perform this Agreement or any Ancillary Agreement, or to timely consummate the Contemplated Transactions.
Section 5.4 Litigation
and Claims. There are no Proceedings pending or, to Buyer’s Knowledge, threatened against or involving Buyer or any of its
Affiliates that, individually or in the aggregate, would have a material adverse effect on Buyer’s ability to execute, deliver
or perform this Agreement or any Ancillary Agreement, or to timely consummate the Contemplated Transactions. Buyer is not subject to
any Order that, individually or in the aggregate, would have a material adverse effect on its ability to execute, deliver or perform
this Agreement or any Ancillary Agreement, or to timely consummate the Contemplated Transactions.
- 57 -
Section 5.5 Financial
Capability. Buyer will have at Closing sufficient cash on hand or other sources of immediately available funds to enable it to make
all payments contemplated by this Agreement and consummate the Contemplated Transactions. There are no known circumstances or conditions
that could reasonably be expected to prevent or delay the availability of such funds at Closing. Buyer acknowledges that the obligations
of Buyer under this Agreement are not contingent upon or subject to any conditions regarding Buyer’s, its Affiliates’ or
any other Person’s ability to obtain financing for the consummation of the Contemplated Transactions.
Section 5.6 Investment
Representations.
(a) Buyer
is acquiring the Purchased Securities solely for its own account for investment purposes and not with a view to, or for offer or sale
in connection with, any distribution thereof in violation of any Law (including the Securities Act), and Buyer is an “accredited
investor” as defined in Rule 501(a) promulgated under the Securities Act.
(b) Buyer
agrees that the Purchased Securities may not be sold, transferred, offered for sale, pledged, hypothecated or otherwise disposed of without
registration under the Securities Act and any applicable state securities Laws, except pursuant to an exemption from such registration
under the Securities Act and such Laws.
(c) Buyer
is able to bear the economic risk of holding its investment in the Purchased Securities and the Company Group for an indefinite period
(including total loss of its investment), and has sufficient knowledge and experience in financial and business matters so as to be capable
of evaluating the merits and risk of its investment. In reaching an informed decision to purchase the Purchased Securities and the Company
Group, Buyer has sufficient information to evaluate the merits and risks of an investment in the Purchased Securities and the Company
Group, and Buyer has had the opportunity to ask Representatives of the Companies and Sellers questions, concerning the Company Group
and the Purchased Securities. Buyer is not relying on any of Sellers, the Company Group or any of their respective Affiliates or Representatives
with respect to the corporate tax, legal and economic considerations involved in its investment in the Company Group and the Purchased
Securities. Buyer acknowledges and agrees that it (i) has had reasonable access to the Data Room, and (ii) has conducted its
own independent investigation of the Company Group, their respective businesses and the Contemplated Transactions, and has not relied
on any representation, warranty or other statement by Sellers, the Company Group or any of their respective Affiliates or Representatives,
other than (A) the representations and warranties regarding the Company Group expressly and specifically set forth in Article III
of this Agreement and (B) the representations and warranties of Sellers expressly and specifically set forth in Article IV
of this Agreement, in each case as qualified by the Company Disclosure Schedule, and that all other representations and warranties are
specifically disclaimed.
Section 5.7 Solvency.
No transfer of property is being made and no obligation is being incurred in connection with the Contemplated Transactions with the actual
intent to hinder, delay or defraud either present or future creditors of the Company Group. Assuming that the representations and warranties
regarding the Company Group and the Sellers contained in this Agreement are true and correct in all material respects, at and immediately
after the Closing, immediately after giving effect to the Contemplated Transactions, Buyer and the Company Group, on a consolidated basis,
(a) will be solvent (in that both the fair value of its assets (on a going concern basis) will not be less than the sum of its debts
and that the present fair saleable value of its assets (on a going concern basis) will not be less than the amount required to pay its
probable liabilities on its debts as they become absolute and matured); and (b) will have adequate capital and liquidity with which
to engage in its business.
- 58 -
Section 5.8 No
Brokers. None of Buyer nor any of its Affiliates has employed or incurred any liability to any broker, finder or agent for any brokerage
fees, finder’s fees, commissions or other amounts with respect to this Agreement, the Ancillary Agreements or the Contemplated
Transactions that will be payable by the Sellers or any of their Affiliates other than the Company Group.
Section 5.9 No
Inducement or Reliance; Independent Assessment.
(a) Buyer
is a sophisticated purchaser and has made its own independent investigation, review and analysis regarding the Company Group and the
Contemplated Transactions, which investigation, review and analysis were conducted by Buyer together with expert advisors, including
legal counsel, that they have engaged for such purpose. Buyer has not been induced by or has relied upon any representations, warranties
or statements, whether express or implied, made by the Company Group, any Seller or their respective Affiliates or Representatives, except
for the representations and warranties regarding the Company Group expressly and specifically set forth in Article III, the
representations and warranties of Sellers expressly and specifically set forth in Article IV (in each case as qualified by
the Company Disclosure Schedule) and the representations and warranties expressly and specifically set forth in any Ancillary Agreement
and in any Ancillary Agreement and in any certificate delivered pursuant to this Agreement. Without limiting the generality of the foregoing,
Buyer acknowledges that neither the Company Group or any Seller nor any Representative of the Company Group or any Seller has made, and
shall not be deemed to have made, any representations or warranties in the materials relating to the business of the Company Group made
available to Buyer or its Representatives, including due diligence materials and any confidential information memorandum, or in any presentation
of the business of the Company Group by management of the Company Group or others in connection with the Contemplated Transactions, and
no statement contained in any of such materials or made in any such presentation shall be deemed a representation or warranty hereunder
or otherwise or deemed to be relied upon by Buyer in executing, delivering and performing this Agreement, the Ancillary Agreements and
the Contemplated Transactions. Buyer understands that any cost estimates, projections or other predictions, any data, any financial information
or any memoranda or offering materials or presentations, including but not limited to any confidential information memorandum or similar
materials made available by the Company Group and their Representatives, are not and shall not be deemed to be or to include representations
or warranties of the Company Group or any Seller, and are not and shall not be deemed to be relied upon by Buyer in executing, delivering
and performing this Agreement, the Ancillary Agreements and the Contemplated Transactions.
(b) Buyer
acknowledges that none of the Company Group entities nor any Seller makes, will make or has made any representation or warranty, express
or implied as to the prospects or Tax attributes of the Company Group or their respective businesses or their profitability for Buyer,
or with respect to any forecasts, projections or business plans made available to Buyer (or their Affiliates or Representatives) in connection
with their review of the Company Group.
- 59 -
(c) Notwithstanding
anything in this Section 5.9 to the contrary, nothing shall limit, modify, waive, or otherwise impair in any way Buyer's
right to rely upon (and Buyer hereby expressly relies upon) the representations and warranties expressly and specifically set forth in
Article III, Article IV (in each case, as qualified by the Company Disclosure Schedule), in any Ancillary Agreement
and in any certificate delivered pursuant to this Agreement, or limit or impair any of Buyer's rights or remedies with respect to Fraud.
Section 5.10 Buyer
Guarantor.
(a) Buyer
Guarantor is a company duly organized, validly existing and in good standing under the Laws of Israel. Buyer Guarantor has all requisite
company power and authority to carry on its business as now being conducted and to own, lease, and operate its properties and assets
as now owned, leased, or operated, and to perform all its obligations under the agreements and instruments to which it is a party or
by which it is bound.
(b) Buyer
Guarantor has full company power and authority to execute and deliver the Guarantee, and to perform its obligations thereunder. The execution,
delivery and performance by Buyer Guarantor of the Guarantee has been duly and validly authorized by Buyer Guarantor and no additional
company authorization or consent is required in connection therewith.
(c) The
execution and delivery by Buyer Guarantor of the Guarantee and compliance by Buyer Guarantor with the provisions thereof, will not (a) conflict
with or violate any provision of any of the Organizational Documents of Buyer Guarantor, (b) result in a violation or breach of,
or constitute (with or without due notice or lapse of time or both) a default or give rise to any right of termination, cancellation,
or acceleration under any Contract to which Buyer Guarantor is a party, or (c) violate or conflict with any provision of any Law
binding upon Parent Guarantor, except in the case of clauses (b) and (c), as would not, individually or in the aggregate,
reasonably be expected to have a material adverse effect on Buyer Guarantor’s ability to execute, deliver or perform the Guarantee.
(d) Buyer
Guarantor has duly executed and delivered to Sellers the Guarantee, pursuant to which, among other things, Buyer Guarantor has guaranteed
the due and punctual payment and performance by Buyer of any and all of Buyer’s obligations under this Agreement, including the
payment of the Estimated Aggregate Closing Consideration, any Positive Purchase Price Adjustment Amount (if due under the terms of the
Agreement), and all other amounts required to be paid in connection with the consummation of the Contemplated Transactions and all related
fees and expenses, in each case subject to the terms and conditions hereof. The Guarantee is in full force and effect and is the valid,
binding and enforceable obligation of Buyer Guarantor in accordance with its terms, subject to the General Enforcement Exceptions, and
no event has occurred which, with or without notice, lapse of time or both, would constitute a default on the part of Buyer Guarantor.
- 60 -
Section 5.11 Disclaimer
of Other Representations and Warranties. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, EXCEPT FOR THE REPRESENTATIONS
REGARDING THE BUYER EXPRESSLY AND SPECIFICALLY SET FORTH IN ARTICLE V AND THE REPRESENTATIONS AND WARRANTIES OF BUYER OR
ITS AFFILIATES EXPRESSLY AND SPECIFICALLY SET FORTH IN ANY ANCILLARY AGREEMENT AND ANY CERTIFICATE DELIVERED PURSUANT TO THIS AGREEMENT,
NONE OF THE BUYER OR ANY OF ITS DIRECTORS, OFFICERS, AFFILIATES, REPRESENTATIVES OR ADVISORS OR ANY OTHER PERSON HAS MADE, OR SHALL BE
DEEMED TO HAVE MADE, ANY REPRESENTATION OR WARRANTY.
ARTICLE VI
additional covenants and agreements
Section 6.1 Access
and Investigation.
(a) Until
the Closing and upon reasonable advance notice from Buyer, Sellers and the Company Group will allow Buyer and its Representatives reasonable
access during normal business hours and without unreasonable interference with the operation of the business of the Company Group to
(a) such materials and information about the Company Group as Buyer may reasonably request, and (b) specified members of management
of the Company Group as the parties may reasonably agree; provided that (i) all arrangements for access shall be made in
advance solely through TD Securities (USA) LLC, (ii) Buyer and its Representatives shall take such action as is deemed necessary
in the reasonable judgment of the Company to schedule such access and visits in such a way as to avoid disrupting in any material respect
the normal business of the Company Group, (iii) the Company Group shall not be required to take any action that would constitute
a waiver of the attorney-client or other privilege or would compromise such party’s confidential information, (iv) the Company
Group need not supply Buyer with any information which, in the reasonable judgment of the Parent Company, (A) the Company Group
is under a contractual or legal obligation not to supply (provided that the Company shall use its commercially reasonable efforts
to obtain the consent of the applicable Person to permit disclosure or otherwise summarize or disclose such information in a manner so
as not to violate the confidentiality obligations of the Company Group) or (B) would cause significant competitive harm to the Company
Group, any Seller or their respective businesses if the Contemplated Transactions are not consummated, (v) the Company Group need
not supply Buyer with bids, letters of intent, expressions of interest or other proposals received from others in connection with the
Contemplated Transactions or any Acquisition Transaction or information or analyses relating to such communications, and (vi) in
no event shall Buyer be permitted to conduct any sampling of any environmental media, including soil, sediment, groundwater, surface
water, indoor or outdoor air or building material.
(b) During
the period from the date of this Agreement through the Closing Date, the Parent Company shall, and shall cause the Company Group to,
deliver to Buyer monthly financial reports of the Company Group promptly following the completion of such reports, which shall include,
statements of operations (broken down by business unit to the extent practicable and not unreasonably burdensome), a balance sheet, and
a statement of cash flows for such month, prepared in a manner consistent with the Company Group's historical internal reporting practices
and the Accounting Principles. Any financial statements delivered pursuant to this Section 6.1(b) shall not be included
within the definition of Financial Statements for purposes of this Agreement.
- 61 -
(c) For
the avoidance of doubt, any information provided or made available in connection with such access pursuant to this Section 6.1
shall be deemed to be, and treated as, “Confidential Information” in accordance with the terms and subject to the conditions
of the Confidentiality Agreement. Prior to the Closing, Buyer shall not (and shall cause its Representatives and Affiliates not to) use
any information obtained pursuant to this Section 6.1 for any purpose unrelated to the Contemplated Transactions. Buyer hereby
agrees that from the date hereof until the Closing Date or the earlier termination of this Agreement, it is not authorized to, and shall
not (and shall not permit any of its Representatives or Affiliates to) contact and communicate with the employees, service providers,
customers, suppliers or other material business relationships of Sellers or their Affiliates (including the Company Group) without the
prior consultation with and written approval of the Parent Company; provided, however, that the foregoing restriction shall
not prohibit (i) any contacts by Buyer or Buyer’s Representatives or Affiliates with the service providers, customers and
suppliers of the Company Group in the ordinary course of their business unrelated to the Company Group or the Contemplated Transactions;
and (ii) any contacts by Buyer or Buyer’s Representatives or Affiliates with the employees of Company Group in the ordinary
course of their business unrelated to the Contemplated Transactions. Neither Sellers nor the Company Group makes any representation or
warranty as to the accuracy of any information (if any) provided pursuant to this Section 6.1, and Buyer may not rely on
the accuracy of any such information, in each case other than as expressly and specifically set forth in the representations and warranties
regarding the Company Group contained in Article III or Sellers’ representations and warranties expressly and specifically
set forth in Article IV, in each case as qualified by the Company Disclosure Schedule.
Section 6.2 Operation
of the Businesses of the Company Group(a) .
(a) Until
the Closing, except (i) as otherwise set forth in this Agreement or the Company Disclosure Schedule, (ii) for the transactions
contemplated by Section 6.11, (iii) in connection with the Government Contract Novations, or (iv) as otherwise
consented to by Buyer (which consent will not be unreasonably withheld, conditioned or delayed), the Companies will, and Parent Company
will cause the other Company Group entities to, conduct their business in the ordinary course of business in all material respects and
use their commercially reasonable efforts to keep available the services of their employees and to preserve their relationships with
their customers and others doing business with them.
(b) Until
the Closing, except (i) as otherwise set forth in this Agreement, or (ii) for the transactions contemplated by Section 6.11,
the Company Disclosure Schedule or as otherwise consented to by Buyer (which consent will not be unreasonably withheld, conditioned or
delayed), the Company will not, and Parent Company will not permit and will cause any other Company Group entity to not:
(i) amend
its Organizational Documents in a manner that could be expected to delay or otherwise interfere with the consummation of the Contemplated
Transactions;
(ii) issue,
sell or pledge additional membership interests, shares of its capital stock or securities convertible into any such membership interests
or shares, or any options, warrants or rights to acquire any such membership interests, shares or other convertible securities or transfer
any membership interests or shares of the capital stock of the Companies’ Subsidiaries to any Person (other than in accordance
with Section 6.11 or to Buyer or its Affiliates pursuant to this Agreement);
- 62 -
(iii) purchase,
redeem or otherwise acquire any outstanding membership interests or shares of its capital stock;
(iv) declare,
set aside or pay any dividend or other distribution in respect of its membership interests or capital stock, other than tax distributions
and other distributions in the ordinary course of business in connection with the Company Group’s cash management practices;
(v) other
than borrowings in the ordinary course of business under the terms of its Credit Agreement and/or the Subordinated Credit Agreement,
incur any Indebtedness of the type specified in clauses (a) or (b) of the definition thereof in excess of $1,000,000
or amend the terms of any outstanding Contract related to such Indebtedness in a manner that would reasonably be expected to delay or
otherwise interfere with the consummation of the Contemplated Transactions;
(vi) enter
into any Contract that would have been a Material Contract had it been entered into prior to and remained in effect on the date of this
Agreement or terminate or materially and adversely amend any Material Contract other than in the ordinary course of business, or enter
into any Contract that includes a change of control or similar provision that would require a payment to the other party or parties thereto
in connection with the consummation of any of the Contemplated Transactions;
(vii) other
than with respect to the Excluded Receivables, waive or release any right or claim of a material value to the Company Group other than
in the ordinary course of business consistent with past practice;
(viii) sell,
lease or license, or permit any Lien (other than any Permitted Lien) on, any material portion of its assets other than in the ordinary
course of business;
(ix) acquire,
by merger or consolidation with, or by purchase of all or a substantial portion of the assets or stock of, or by any other manner, any
business or entity, or enter into any joint venture, partnership or other similar arrangement for the conduct of the Business;
(x) increase
the aggregate compensation or benefits payable to any Company Employee, in each case other than (A) as required by Law, (B) as
required by the terms of any Company Plan or Seller Plan as of the date hereof, or (C) in the ordinary course of business consistent
with past practice (including as part of the Company Group’s normal performance and salary review process);
- 63 -
(xi) solely
with respect to Tax matters of a Company on a standalone basis and not with respect to entity-level Tax matters of the Parent Company,
a Seller or their respective Affiliates with respect to which a Company is a disregarded entity for applicable Tax purposes, engage in
any practice, take any action, or enter into any transaction outside the ordinary course of business, in each case, that would be reasonably
expected to materially increase the Taxes payable by any Company (other than Taxes of the Parent Company’s or any Seller’s
consolidated, affiliated or unitary group);
(xii) enter
into negotiations relating to the creation of any worker’s union, collective bargaining agreement, trade union agreement or similar
agreement or arrangement under which any employee or consultant would be subject or would otherwise receive any benefit;
(xiii) hire
or offer to hire, anyone to fill a position with respect to which the annual base salary is $350,000 or more, unless such hiring is in
the ordinary course of business to replace a departed employee and such replacement employee has substantially similar credentials and
experience as the departed employee, or terminate any Key Employee;
(xiv) except
as may be required as a result of a change in Applicable Law or in GAAP, make any change in any of the accounting principles or practices
used by the Company Group;
(xv) (i) form
or commence the operations of, any business or any corporation, partnership, limited liability company, business association or other
similar business organization or Person that is not wholly owned by the Company Group or (ii) enter into any new line of business;
(xvi) waive,
release, assign, settle or compromise any pending or threatened Proceeding or pay, discharge or satisfy or agree to pay, discharge or
satisfy any claim, Liability or obligation, other than the settlement, compromise, payment, discharge or satisfaction of Proceedings,
claims and other Liabilities that is solely for monetary damages (without any admission of Liability or adverse consequence or restrictions
on the Company Group) for an amount that is not in excess of the amounts reflected or reserved relating to such claims or Liabilities
in the Financial Statements;
(xvii) commence
any Proceedings against any Person other than (i) for the routine collection of accounts receivable; (ii) in such cases where
the Company Group determines in good faith that failure to commence such suit could result in the impairment of a valuable aspect of
its business, provided that the Company Group provides Buyer with prior notice to the filing of a suit;
(xviii) incur
any capital expenditure or any obligations, Liabilities or indebtedness in respect thereof, except for (i) those contemplated by
the capital expenditure budget for the relevant fiscal year, which capital expenditure budget or model has been made available to Buyer
and (ii) any unbudgeted capital expenditure, in an amount not to exceed, in any fiscal quarter, $1,000,000 individually or $3,000,000
in the aggregate;
- 64 -
(xix) enter
into any Contract or transaction between the Company Group, on the one hand, and any Affiliate of the Company Group, on the other hand,
other than in the ordinary course of business and on terms no less favorable to the Company Group, than the terms governing similar transactions
with third parties;
(xx) adopt
any plan or Contract of restructuring, liquidation, dissolution, winding-up, reorganization or recapitalization of any Company Group
entity;
(xxi) take
any action that would cause, or would reasonably be expected to cause, Company Group to be in material violation of any of the terms
of its material Permits; or
(xxii) fail
to make any required filings, pay any maintenance, renewal or other fees, or take any other actions necessary to maintain, protect, and
keep in full force and effect the Company Registered Intellectual Property, or otherwise permit any Company Registered Intellectual Property
to lapse, expire, or be abandoned;
(xxiii) agree
in writing to take any of the foregoing actions.
(c) Until
the Closing, no Seller shall sell, transfer or otherwise dispose of any Outstanding Securities.
(d) Buyer
shall respond with promptness and in good faith to any and all requests by the Parent Company for consent(s) for the Company Group
to take any of the actions specified in this Section 6.2, and if Buyer fails to respond within four (4) Business Days
following receipt of a written request by the Parent Company, then Buyer shall be deemed to have approved or consented to such request.
(e) Nothing
contained in this Agreement shall give to Buyer, directly or indirectly, rights to control or direct the operations of the Company Group
prior to the Closing. Prior to the Closing, the Company Group shall exercise, consistent with the terms and conditions of this Agreement,
complete control and supervision of their respective operations.
- 65 -
Section 6.3 Consents
and Filings; Reasonable Best Efforts.
(a) Subject
to the terms and conditions provided in this Section 6.3, each of Buyer, the Parent Company, the Companies and Sellers will
use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper
or advisable to consummate and make effective as promptly as practicable the Contemplated Transactions and to cooperate with each other
in connection with the foregoing, including to: (i) obtain all necessary waivers, consents and approvals from third parties (“Third
Party Consents”); (ii) obtain all Governmental Authorizations that are required to be obtained under any Law; (iii) lift
or rescind any injunction, restraining order or other Order adversely affecting the ability of the parties to this Agreement to consummate
the Contemplated Transactions; (iv) effect all necessary registrations and filings including filings and submissions of information
requested or required by any Governmental Authority, including the Antitrust Division of the United States Department of Justice, the
Federal Trade Commission, any State Attorney General and any other national or foreign antitrust authorities with mandatory pre-merger
filing requirements that are deemed by Buyer and the Parent Company, after consulting with one another, to be applicable to the Contemplated
Transactions (“Governmental Antitrust Authority”); and (v) fulfill all conditions to this Agreement; provided,
however, that Buyer shall be required to contest or defend against (i) any action or proceeding that is instituted to challenge
the Contemplated Transactions as violating any Antitrust Law or (ii) any decree, order, judgment, or injunction (whether temporary,
preliminary, or permanent) entered, enforced, or attempted to be entered or enforced by any Governmental Authority that would make the
Contemplated Transactions illegal or otherwise delay or prohibit the consummation of the Contemplated Transactions (“Challenge
to the Transaction”) unless in either case Buyer has determined, in good faith, after consulting with and considering the views
of the Parent Company, that there is not a reasonable likelihood of success on the merits. Each of the parties hereto shall (A) promptly
(and in no event later than ten (10) Business Days following the date hereof) make its filings under the HSR Act, and thereafter
make any other applications and filings required under the Antitrust Laws of any other jurisdiction with respect to the Contemplated
Transactions, (B) comply at the earliest reasonable practicable date with any request under the HSR Act for additional information,
documents or other materials (including responding to any “second request”) received by such party from the U.S. Federal
Trade Commission, the Antitrust Division of the U.S. Department of Justice or by any other Governmental Authority under any Antitrust
Laws in respect of any such filings with respect to the Contemplated Transactions and (C) act in good faith and reasonably cooperate
with the other party in connection with any such filings and in connection with resolving any investigation or other inquiry of such
agency or other Governmental Authority under any Antitrust Laws. In taking the foregoing actions, each of the parties shall act reasonably
and as promptly as practicable. Buyer and Sellers further covenant and agree, with respect to any threatened preliminary or permanent
injunction or other Order or Law that would adversely affect the ability of the parties to this Agreement to consummate the Contemplated
Transactions, to use their reasonable best efforts to prevent the entry, enactment or promulgation thereof, as the case may be. Furthermore,
to the extent that Buyer, in its sole discretion, after consulting in good faith with and considering the views of the Parent Company,
has determined that it will contest or defend against any Challenge to the Transaction, Sellers agree to use their reasonable best efforts
to assist Buyer in contesting or defending such Challenge to the Transaction. In no event, however, will Sellers or Buyer, be obligated
to effect or undertake (or be required to agree or consent to), any of the following actions: (i) selling, divesting, licensing
or otherwise disposing of, or holding separate and agreeing to sell, divest, license or otherwise dispose of, any assets, (ii) terminating,
amending or assigning existing relationships and contractual rights and obligations, (iii) requiring the grant of any right or commercial
or other accommodation to, or enter into any material commercial contractual or other commercial or relationship with, any third party,
(iv) imposing limitations on any party with respect to how they own, retain, conduct or operate all or any portion of their respective
businesses or assets, (v) paying any money to any Person or to offer or grant other financial or other accommodations to any Person
in connection with its obligations under this Section 6.3, or (vi) otherwise offering, proposing, negotiating, agreeing
to, committing to or effecting any other remedy, condition, commitment or undertaking of any kind, in each case, if such action would
reasonably be expected to be, individually or in the aggregate, material to any party taken as a whole.
- 66 -
(b) Notwithstanding
anything contained herein, but subject to its compliance with the other applicable terms of Section 6.3, Buyer shall lead
all communications and strategy for dealing with any Governmental Authority in connection with any review, challenge or Order under Antitrust
Laws. Each of the parties hereto will furnish to the other such necessary information and reasonable assistance as the other may reasonably
request, and consult in advance and consider in good faith the views of the other party, in connection with the preparation of any required
governmental filings or submissions and any dealings with, and will cooperate in responding to any inquiry from, a Governmental Authority,
including (i) promptly informing the other party in writing of such filing, submission or inquiry and providing a copy of any written
filing, submission or inquiry, (ii) permit the other party to review in draft any proposed substantive communication to be submitted
by it to any Governmental Authority with reasonable time and opportunity to comment, and consult with each other in advance of any substantive
in person or telephonic meeting or conference with any Governmental Authority, (iii) giving the other party the opportunity to attend
and participate in any substantive meetings or discussions with any Governmental Authority, to the extent not prohibited by such Governmental
Authority and (iv) supplying each other with copies of all material correspondence, filings or communications between either party
and any Governmental Authority with respect to this Agreement.
(c) Each
of Buyer, the Parent Company, the Companies and Sellers shall, and shall cause their respective Affiliates to, promptly take, or cause
to be taken, all action, and do, or cause to be done, all things necessary or advisable to obtain CFIUS Approval, including (i) promptly
submitting a draft CFIUS Notice required in connection with CFIUS Approval and in accordance with the DPA; (ii) promptly submitting
a final CFIUS Notice in connection with CFIUS Approval and in accordance with the DPA after receipt of confirmation that CFIUS has no
further comment to the draft CFIUS Notice; (iii) providing any information requested by CFIUS or any other agency or branch of a
U.S. Governmental Authority in connection with the CFIUS review or investigation of the Contemplated Transactions within the timeframes
set forth in the DPA; and (iv) cooperating in good faith with each other in connection with all communications and interactions
with CFIUS. Without limiting the foregoing, each Party shall: (A) keep the other party reasonably informed of the status of all
substantive matters relating to CFIUS Approval; (B) include the other party and its outside counsel in all substantive communications
with CFIUS (including drafts and final submissions, requests for information, and responses thereto); (C) provide the other party
with advance notice of any substantive meeting, teleconference or discussion with CFIUS and, to the extent permitted by applicable Law,
afford the other party a reasonable opportunity to attend and participate in such meeting, teleconference or discussion; and (D) provide
the other party with a reasonable opportunity to review and comment on any substantive written communication to be submitted to CFIUS,
and consider such comments in good faith. Notwithstanding the foregoing, a party may withhold or redact information from any communication
or exclude the other party from any portion of a communication or meeting to the extent reasonably necessary to protect such party’s
or its Affiliates’ confidential or proprietary information (including trade secrets, competitively sensitive information, information
subject to legal privilege, or contractual confidentiality obligations), provided that such party shall (x) limit any such
withholding, redaction or exclusion to what is reasonably necessary and (y) to the extent reasonably practicable, provide the other
party with a redacted copy of any written submission or a reasonably detailed summary of any material oral communication.
- 67 -
(d) Subject
to the limitations set forth in this Section 6.3(d), the parties shall promptly take, or cause to be taken, all action, and do,
or cause to be done all things necessary or advisable to obtain CFIUS Approval as soon as reasonably practicable, including executing
a CFIUS Mitigation Agreement on terms, conditions, or measures sought by CFIUS. Neither the parties, nor their respective Affiliates,
shall take any action that would reasonably be expected to materially prevent, delay, or impede CFIUS Approval without the written consent
of, in the case of Buyer, the Sellers, and in the case of the Sellers, the Buyer, except that a withdrawal and refile of the CFIUS filing
upon request by CFIUS shall not be considered a material prevention, delay or impediment to CFIUS Approval. For the avoidance of doubt,
the Buyer shall not, in order to obtain CFIUS Approval, be required to do either of the following, if it would be reasonably expected
to result in a Burdensome Condition: (i) propose, negotiate, commit to or effect (by consent decree, hold separate order or otherwise)
the sale, divestiture or disposition of any assets or businesses of Buyer or its Affiliates or of the Company Group; or (ii) otherwise
take or commit to take any action that limits its freedom of action with respect to any of the businesses, product lines or assets of
Buyer or its Affiliates or of the Company Group. In the event CFIUS proposes any divestiture applicable to the Company Group as a condition
to granting CFIUS Approval, Parent Company and Buyer shall negotiate in good faith to amend this Agreement.
(e) Upon
a CFIUS Turndown, either the Buyer or Sellers may request CFIUS to withdraw the CFIUS Notice, and the parties shall cooperate in requesting
withdrawal of the CFIUS Notice and any associated conditions imposed by CFIUS required for the withdrawal and abandonment of the Contemplated
Transactions.
(f) The
parties shall use reasonable best efforts to submit a notification of pending changed conditions to DCSA, pursuant to the NISPOM and
in connection with the Contemplated Transactions, as promptly as practicable following the execution and delivery of this Agreement.
The parties shall thereafter cooperate in the preparation of, furnish documents required for, and participate in discussions related
to obtaining DCSA Approval.
(g) The
parties shall use reasonable best efforts to obtain DCSA Approval as promptly as practicable and shall consult with each other on strategic
matters related to obtaining DCSA Approval and cooperate with one another in pursuing any reasonable course of action that they, in good
faith, agree to for purposes of obtaining DCSA Approval.
(h) No
later than sixty (60) days prior to the Closing, the parties shall use reasonable best efforts to submit notification of the Contemplated
Transactions to the U.S. Department of State’s Directorate of Defense Trade Controls (“DDTC”), under Section 122.4(b) of
the ITAR (such notification, the “Pre-Closing ITAR Notice”). From and after the date hereof, Sellers and Buyer shall
use commercially reasonable efforts, including by furnishing each other information and assistance and cooperating with each other, as
is reasonably required for each to file its respective notice with DDTC, under Section 122.4(a) of ITAR by no later than five
(5) Business Days following the Closing Date (the “Post-Closing ITAR Notice”).
- 68 -
(i) Each
of Buyer, the Companies and Sellers further agrees that no representation, warranty or covenant of the other party contained herein shall
be breached or deemed breached solely as a result of (i) the failure to obtain any such Governmental Consent or Third Party Consent,
or (ii) any Proceeding commenced or threatened by or on behalf of any Person arising out of or relating to the failure to obtain
any such Governmental Consents or Third Party Consents or any such termination.
(j) The
Sellers shall, and shall cause their Affiliates to, use reasonable best efforts to cause Sellers’ independent registered public
accounting firm and any predecessor independent auditors whose reports are included or required to be included in any registration statement,
proxy statement or other filing by Buyer or any of its Affiliates with the SEC in connection with the transactions contemplated hereby,
to reasonably cooperate with Buyer and its representatives and to execute and deliver, from time to time, such written consents as may
be required under the Securities Act, the Exchange Act and the rules and regulations of the SEC, including consents to the inclusion
or incorporation by reference of such auditors’ reports on the Company Group’s audited financial statements and any related
comfort letters. Sellers shall not take, and shall cause their Affiliates not to take, any action that would reasonably be expected to
impede, delay or adversely affect the ability of such auditors to provide such cooperation or consents. Buyer shall bear all costs and
expenses of any such consents and comfort letters.
Section 6.4 Confidentiality.
(a) The
parties agree to continue to abide by the Confidentiality Agreement, which will survive until the Closing, at which time the Confidentiality
Agreement will terminate; provided, however, that if this Agreement is, for any reason, terminated prior to the Closing,
the Confidentiality Agreement will continue in full force and effect in accordance with its terms.
(b) Until
the second (2nd) anniversary of the Closing Date, Sellers will hold in confidence, unless compelled to disclose by judicial
or administrative process or by other requirements of Law (after having given Buyer reasonable advance notice thereof and the ability
to contest such requirement to the extent legal permissible), all non-public documents and information to the extent relating to the
Company Group (the “Company Group Information”), except to the extent that such Company Group Information (i) must
be disclosed in connection with the obligations of Sellers pursuant to this Agreement or the Ancillary Agreements or (ii) can be
shown to have been in the public domain through no fault of Sellers. Notwithstanding the foregoing, in no event will this Section 6.4(b) limit
or otherwise restrict the right of Sellers to disclose such Company Group Information (x) to its and its Affiliates’ respective
directors, officers, employees, agents and advisors to the extent reasonably required to facilitate the negotiation, execution, delivery
or performance of this Agreement and the Ancillary Agreements, (y) to any Governmental Authority or arbitrator to the extent reasonably
required in connection with any Proceeding relating to the enforcement of this Agreement or any Ancillary Agreement, and (z) with
respect to any Seller who remains an employee of the Company Group following the Closing, to the extent required in the course of the
performance of his or her services to the Company Group.
(c) Nothing
contained in this Agreement shall restrict Sellers or any of their respective Representatives from the use of any general ideas, concepts,
know-how, methodologies, processes, technologies, algorithms or techniques retained in the unaided mental impressions of such Person
relating to the Business; provided, however, that in doing so such Person does not (a) infringe the intellectual property
rights of Buyer (including the Company Group after the Closing) or (b) breach its confidentiality obligations under this Agreement.
- 69 -
Section 6.5 Public
Announcements. Prior to Closing, each party agrees not to issue any press release or make any other public announcement relating
to this Agreement without the prior written approval of the other parties, unless required by applicable securities Law or securities
listing standards (in the reasonable opinion of counsel to the disclosing party) in which case Buyer, Sellers and the Company Group,
as the case may be, will have the right to review such press release or other announcement prior to issuance, distribution or publication;
provided that nothing in this Section 6.5 shall be construed to limit Sellers’ or Buyer’s ability to discuss
or disclose information concerning the Contemplated Transactions or this Agreement with their respective Representatives.
Section 6.6 Indemnification
of Directors and Officers.
(a) From
and after the Closing Date through the sixth (6th) anniversary of the Closing Date (or with respect to any claim outstanding
on the sixth (6th) anniversary of the Closing Date, until the resolution of such claim), Buyer shall and shall cause the Company
Group to fulfill and honor in all respects the obligations of the Company Group to their directors and officers pursuant to any exculpation,
indemnification and advancement of expenses provisions under the Organizational Documents of the Company Group as in effect on the date
of this Agreement (the persons entitled to be indemnified pursuant to such provisions, and all other current and former directors and
officers of the Company Group as listed in Schedule 6.6 of the Company Disclosure Schedules, being referred to collectively as the “D&O
Indemnified Parties”). From and after the Closing Date through the sixth (6th) anniversary of the Closing Date (or
with respect to any claim outstanding on the sixth (6th) anniversary of the Closing Date, until the resolution of such claim),
Buyer shall and shall cause its Subsidiaries to maintain the provisions with respect to indemnification, advancement of expenses and
exculpation from liability as set forth in the Organizational Documents of the Company Group as of the date of this Agreement, which
provisions shall not be amended, repealed or otherwise modified during such period in any manner that would adversely affect the rights
thereunder of any D&O Indemnified Party. Buyer shall give the Parent Company at least ten (10) Business Days prior written notice
of any proposed amendment, repeal or modification of any indemnification, advancement of expenses and exculpation from liability provisions
set forth in the Organizational Documents of the Company Group.
(b) At
or prior to the Closing, the Company Group shall purchase an extended reporting period endorsement under the Company Group’s existing
directors’ and officers’ liability insurance coverage for the D&O Indemnified Parties that shall provide such Persons
with coverage for six (6) years following the Closing for any claims arising from events which occurred prior to the Closing and
having not less than the existing coverage and having other terms not materially less favorable to the insured persons than the directors’
and officers’ liability insurance coverage presently maintained by the Company Group (the “D&O Tail Insurance”).
Buyer shall, and shall cause the Company Group to, maintain such policy in full force and effect, and continue to honor the obligations
thereunder. Buyer agrees to pay the premium payments for the purchase of a six-year extended reporting period endorsement under the Company
Group’s existing directors’ and officers’ liability insurance policy; provided however, that 50% of such premium
shall be deemed to constitute Closing Transaction Expenses.
- 70 -
(c) In
the event that Buyer or any of its successors or assigns (i) consolidates with or merges into any other Person and is not the continuing
or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its
properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of
Buyer or the transferee of such properties and assets shall expressly assume and be responsible for all of the obligations thereof set
forth in this Section 6.6.
(d) Buyer,
for itself and its Subsidiaries (including the Company Group), agrees to pay from time to time as warranted all expenses, including attorneys’
fees, that may be incurred by the D&O Indemnified Parties in enforcing the indemnity, expense advancement and other obligations provided
for in this Section 6.6, in each case, subject to the provisions with respect to indemnification, advancement of expenses
and exculpation from liability as set forth in the Organizational Documents of the Company Group.
(e) Buyer,
for itself and its Affiliates, successors and assigns, covenants that it and they shall not institute any Proceeding before any Governmental
Authority or other tribunal against any of the current directors or managers of the Company Group, in their capacity as such, with respect
to any liabilities, actions or causes of action, judgments, claims or demands of any nature or description (consequential, compensatory,
punitive or otherwise), in each such case to the extent resulting from their approval of this Agreement, any Ancillary Agreement or the
Contemplated Transactions.
(f) This
Section 6.6 shall survive the Closing Date, is intended to benefit and may be enforced by the D&O Indemnified Parties,
and shall be binding on all successors and assigns of Buyer and Group. The indemnification provided for herein shall not be deemed exclusive
of any other rights to which such Person is entitled, whether under Law, Contract or otherwise.
Section 6.7 Preservation
of Books and Records.
(a) For
a period of seven (7) years from the Closing Date or such longer time as may be required by Law:
(i) Buyer
shall not and shall cause its Affiliates not to dispose of or destroy any of the Books and Records (excluding Tax Returns) of the Company
Group relating to periods prior to the Closing (“Pre-Closing Books and Records”) without first offering to turn over
possession thereof to the Parent Company by written notice to the Parent Company at least sixty (60) days prior to the proposed date
of such disposition or destruction.
- 71 -
(ii) Buyer
shall, and shall cause its Affiliates to, (i) provide Sellers and their respective agents with electronic access to any portions
of the Pre-Closing Books and Records that are available in electronic format, (ii) allow Sellers and their respective Representatives
access to all other Pre-Closing Books and Records on reasonable notice and at reasonable times at the Company Group’s principal
place of business or at any location where any Pre-Closing Books and Records are stored, and permit Sellers and their respective Representatives,
at their own expense, to make copies of any Pre-Closing Books and Records, (iii) make available Buyer’s or its Affiliates’
personnel to assist in locating such Pre-Closing Books and Records and (iv) make available Buyer’s or its Affiliates’
personnel whose assistance or participation is reasonably required by Sellers or any of their respective Affiliates or Representatives
in anticipation of, or preparation for, any existing or future Proceeding, Tax Contest, audit, investigation or other matters in which
any Seller or any of their respective Affiliates are involved; provided that Sellers shall promptly reimburse Buyer for all reasonable
documented out-of-pocket expenses incurred by Buyer, the Company Group or any of their Affiliates in connection with providing such assistance
or participation of its personnel.
(b) Notwithstanding
anything to the contrary contained in this Agreement, the Parent Company is entitled to retain (i) exclusive possession of all copies
of all original bids received from other parties and prepared in connection with the Contemplated Transactions and/or communications
to and from such parties and (ii) exclusive possession of all copies of all agreements, documents, correspondence, emails, books,
advice, opinions, records and files (collectively, “Transaction Records”) prepared in connection with the Contemplated
Transactions, including analyses relating to the Company Group and communications with counsel. None of the items in this Section 6.7(b) shall
be the property of the Company Group and, effective as of the Closing, the Company Group shall be deemed to assign to Sellers all right,
title and interest thereto, and all attorney work product and privilege with respect to such counsel, in each case whether or not such
Transaction Records and other information is stored on servers of, or in files with, the Company Group. Notwithstanding the foregoing,
(x) the Company Group shall retain all right, title, interest, and attorney-client privilege with respect to any communications
or records relating to the ordinary course operations of the Business unrelated to the Contemplated Transaction, and (y) in the
event of a dispute between Buyer or the Company Group, on the one hand, and a third party, on the other hand, the Company Group may assert
the attorney-client privilege to prevent disclosure of Transaction Records to such third party.
(c) After
Closing, to the extent Transaction Records or information are stored on servers of, or used by, the Company Group and Buyer will not,
and will cause the Company Group not to: (i) access or use the Transaction Records in any way, including by way of review of any
electronic data, communications or other information, or by requesting that the Parent Company waive the attorney-client or other privilege,
or by otherwise asserting that Buyer or any Company Group entity has the right to waive the attorney-client or other privilege; or (ii) seek
to obtain any Transaction Records from any Seller. Without limiting the generality of the foregoing, the parties recognize that it would
be impracticable to try to purge all Transaction Records from files and computer systems of the Company Group prior to the Closing, and
therefore the parties agree that: (x) no waiver is intended by leaving such documents where then located; (y) Buyer and its
Affiliates (including, after the Closing, the Company Group) will not be permitted to review or access (and shall not review or access)
any Transaction Records; and (z) Buyer and its Affiliates (including, after the Closing, the Company Group) will not be permitted
to use (and shall not use) any Transaction Records in a manner adverse to Sellers, whether in any dispute following the Closing or otherwise.
- 72 -
Section 6.8 Tax
Matters.
(a) Tax
Returns; Straddle Periods.
(i) The
Sellers shall prepare, or cause to be prepared and timely file or cause to be timely filed any combined, consolidated or unitary Tax
Return that includes the Parent Company, any Seller or any of their Affiliates (other than the Company Group entities), on the one hand,
and any of the Company Group entities, on the other hand (a “Combined Tax Return”) required to be filed by them that
are due on or before the Closing Date (taking into account any extensions) and timely pay all Taxes that are due and payable on or before
the Closing Date as shown on such Tax Returns. Any such Combined Tax Return, to the extent relating to a Company Group entity, shall
be prepared in a manner consistent with past practice (except to the extent otherwise required by Law).
(ii) The
Sellers shall prepare or cause to be prepared, at their own expense, and file or cause to be filed any Combined Tax Returns that are
first due after the Closing Date for taxable periods ending on or before the Closing Date. All such Combined Tax Returns, to the extent
relating to a Company Group entity, shall be prepared in a manner consistent with the past practice (except to the extent otherwise required
by Law).
(iii) Except
for any Combined Tax Return, after the Closing Date Buyer shall prepare and timely file or cause to be prepared and timely filed any
other Tax Return required to be filed by the Company Group entities.
(iv) With
respect to any Taxes imposed on the Company Group with respect to any taxable period that includes (but does not end on) the Closing
Date (a “Straddle Period”), the following conventions shall be utilized for the purpose of determining the amount
of Taxes attributable to the portion of the Straddle Period ending on the Closing Date: (i) in the case of property Taxes and other
similar Taxes imposed on a periodic basis, the amount attributable to the portion of the Straddle Period ending on the Closing Date shall
equal the Taxes for the entire Straddle Period multiplied by a fraction, the numerator of which is the number of calendar days in the
portion of the Straddle Period ending on the Closing Date and the denominator of which is the number of calendar days in the entire Straddle
Period; and (ii) in the case of all other Taxes (including Taxes based upon income, receipts, transactions or payroll), the portion
of such Taxes attributable to the portion of the Straddle Period ending on the Closing Date shall be deemed equal to the amount which
would be payable if the relevant Tax period ended on and included the Closing Date using a “closing of the books methodology”
(and for such purpose, the taxable period of any partnership or other pass-through entity or non-U.S. entity in which any of the Companies
holds a beneficial interest shall be deemed to terminate at such time); provided that exemptions, allowances or deductions that
are calculated on an annual basis (including depreciation and amortization deductions) shall be allocated between the period ending on
the Closing Date and the period beginning after the Closing Date in proportion to the number of days in each period; and provided
further, that Transaction Deductions shall be treated as arising in a Pre-Closing Tax Period to the extent permissible under applicable
law.
- 73 -
(v) For
the portion of the Closing Date after the time of Closing, other than transactions expressly contemplated hereby, Buyer shall cause the
Company Group to carry on their respective business only in the ordinary course in the same manner as previously conducted.
(b) Post-Closing Covenants. Neither Buyer nor any of its Affiliates shall (i) amend or revoke, and shall not cause or permit
to be amended or revoked, any Combined Tax Return (or any notification or election relating thereto) without the prior written consent
of Sellers; (ii) make any election under Sections 336 or 338 of the Code (or any similar provision), except as expressly permitted by
this Section 6.8(b); or (iii) make any election to change the tax classification of any Company for any Pre-Closing Tax Period
or portion thereof (except for making a CTB election with respect to Comtech Satellite Network Technologies Pte. Ltd. and Beijing Comtech
EF Data Equipment Repair Service Ltd). Notwithstanding the foregoing, Buyer shall have the right, exercisable by written notice to Sellers,
on or before (A) the date that is thirty (30) days following the Closing, to elect to require Sellers to join Buyer in making an election
under Section 338(h)(10) of the Code with respect to the sale to Buyer of any one or more of the members of the Company Group that are
U.S. corporations and (B) the date that is no later than sixty (60) days after the date hereof to restructure the sale of the stock of
Comtech Satellite Network Technologies, Corp. (the “CSNTC Transaction”) to a sale of the assets, and assumption of
the liabilities, either through Buyer or any of its Affiliates, of Comtech Satellite Network Technologies, Corp., if, prior to Buyer’s
election to restructure the CSNTC Transaction or, if Buyer elects not to restructure the CSNTC Transaction, prior to the Closing, (1)
Buyer has agreed to make Sellers whole for any decrease in Tax refund to or increase in Tax liability of Sellers, and the utilization
of any of Sellers’ Tax attributes or deductions (including but not limited to net operating losses, capital losses and the like)
to offset any Taxes resulting from any election pursuant to clauses (A) and/or (B)) that results from any election pursuant
to clauses (A) and/or (B), and any additional Taxes payable as a result of such make-whole payment on a grossed-up basis
(the “Make-Whole Payment”), and (2) each of Buyer and Parent Company has agreed, in their respective sole discretion,
on the methodology to calculate such Make-Whole Payment (the “Make-Whole Calculation Methodology”). The parties agree
that the Make-Whole Calculation Methodology shall assume that no effect shall be given to any Tax attributes of the Sellers (other than
adjusted tax basis in the applicable Company’s assets, as applicable, and any tax attributes resulting from an election made by
a Seller under Treasury Regulation Section 1.1502-13(f)(5)(ii) with respect to the Contemplated Transactions) that would reduce the Sellers’
Tax liability, including net operating loss carryforwards, credits or similar items, unless the Sellers otherwise agree in writing in
their sole discretion, and that the allocation of purchase price among the assets of the relevant Company Group entities shall be made
in a manner consistent with Schedule 6.8(g). Following the execution of this Agreement, Buyer and the Parent Company shall cooperate in
good faith and provide the other party the information required to calculate the Make-Whole Payment. Sellers shall provide Buyer with
the Make-Whole Payment calculation based on the Make-Whole Calculation Methodology and all supporting workpapers and documentation reasonably
necessary for Buyer to evaluate such calculation; provided, however, that Sellers shall not be required to provide any Tax
Return to Buyer. Buyer shall have sixty (60) days following receipt of the Make-Whole Payment calculation to review the same and to deliver
written notice to Sellers of any objections thereto, specifying in reasonable detail the basis for each objection as a deviation from
the agreed Make-Whole Calculation Methodology and the amount in dispute. Any dispute as to the calculation of the Make-Whole Payment with
respect to this Section 6.8(b) shall be resolved pursuant to the mechanism set forth in Section 2.4(d) mutatis mutandis.
If Buyer makes an election pursuant to clauses (A) and/or (B), Buyer shall pay or cause to be paid, to Parent Company, as
additional consideration for the Companies, the Make-Whole Payment in U.S. Dollars by wire transfer of immediately available funds within
five (5) Business Days following the agreement of the Buyer and Sellers to the amount of the Make-Whole Payment or the resolution of the
dispute pursuant to the mechanism set forth in Section 2.4(d). In the event that an election pursuant to clauses (A) and/or
(B) is made by Buyer in accordance with this Section 6.8(b), Sellers shall, and shall cause their Affiliates to, reasonably
cooperate with Buyer in making such election, including executing and delivering all forms, elections and other documents reasonably requested
by Buyer. Buyer shall reimburse the Sellers for their out of pocket costs and expenses (other than Taxes) incurred in connection with
any election pursuant to clauses (A) and/or (B) and the process contemplated by this paragraph, including the costs and
expenses of computing the Make-Whole Payment and any severance or similar liabilities arising from any election pursuant to clause
(B).
- 74 -
(c) Cooperation
on Tax Matters.
(i) Each
party to this Agreement shall use commercially reasonable efforts to, and to cause its Affiliates to, provide to each other party to
this Agreement such cooperation, documentation and information as any party reasonably may request which is reasonably necessary for
or in connection with (i) filing any Tax Return, amended Tax Return or claim for refund, to the extent allowed under this Agreement,
(ii) determining a liability for Taxes, (iii) conducting any Tax Contest, (iv) audit examinations and any administrative
or judicial proceedings relating to the Tax liabilities imposed on the Parent Company or any of its Affiliates, or (v) the enforcement
of the provisions of this Section 6.8. Such cooperation and information shall include providing copies of all relevant portions
of relevant Tax Returns and related documents and making its employees available, to the extent reasonably requested. Notwithstanding
anything to the contrary in this Agreement, neither the Sellers, the Parent Company, Buyer nor any of their respective Affiliates shall
be required to provide any Person with any Tax Return or copy of any Tax Return of (i) the Parent Company, the Sellers, the Buyer
or any of their respective Affiliates or (ii) a consolidated, combined, affiliated or unitary group that includes any Seller, the
Parent Company, Buyer or their respective Affiliates (including any Combined Tax Return), except, in each case, for materials or portions
thereof that relate solely to the Group Companies.
(ii) Not
more than thirty (30) days after the receipt of a request from the Parent Company, Buyer shall, and shall cause its Affiliates to, use
commercially reasonable efforts to provide to the Parent Company a package of Tax information materials, including schedules and work
papers, that is reasonably available to Buyer (or which can be obtained without undue burden), reasonably requested by the Parent Company
to enable the Parent Company to prepare and file all Tax Returns required to be prepared and filed by it or its Affiliates with respect
to the assets or operations of the Company Group. Buyer shall prepare such package in good faith and in a manner consistent with the
Parent Company’s past practice.
- 75 -
(iii) Each
party shall retain all Tax Returns, schedules and work papers, and all material records and other documents relating to Tax matters,
of the assets or operations of the Company Group entities for their respective Tax periods ending on or prior to the Closing Date until
the expiration of the statute of limitations for the Tax periods to which the Tax Returns and other documents relate.
(d) Tax
Sharing and Allocation Agreements. All Tax sharing agreements, Tax allocation agreements or similar agreements and all powers of
attorney of Sellers or any of its Affiliates shall be terminated prior to the Closing Date and, after the Closing, neither Sellers nor
any of its Affiliates shall be bound thereby or have any Liability thereunder.
(e) Tax
Contests. Notwithstanding anything to the contrary, the Parent Company, at its sole expense, shall have the exclusive right to control
in all respects, and Buyer and their respective Affiliates shall not be entitled to participate in, any audit, examination, contest,
litigation or other proceeding with or against any Taxing Authority (“Tax Contest”) with respect to (i) any Tax
Return solely of the Parent Company, any Seller, or any of their Affiliates (other than any of the Company Group entities); and (ii) any
Combined Tax Return.
(f) Transfer
Taxes. Each of the Buyer and the Parent Company shall be responsible for and shall pay 50% of all transfer (including real property
transfer or gains), documentary, sales, use, excise, value added, stamp, filing, recording, registration and similar Taxes of any nature
whatsoever, and related fees and costs imposed on or payable in connection with the Contemplated Transactions (“Transfer Taxes”).
Buyer shall file, or cause to be filed, at its own expense all Tax Returns that must be filed in connection with such Transfer Taxes,
and the Parent Company shall reasonably cooperate in timely making all filings, Tax Returns, reports and forms as may be required with
respect to all such Taxes.
(g) Allocation
of Purchase Price. Within ninety (90) days following the determination of the Final Aggregate Closing Consideration, Buyer shall
prepare and shall deliver to the Parent Company for its review an allocation of the portion of the Final Aggregate Closing Consideration
attributable to the purchase of the shares of each of the entities of the Company Group for U.S. federal and applicable state and local
income tax purposes, using the methodology set forth on Schedule 6.8(g) of the Company Disclosure Schedules, and with respect to
the portion of the Final Aggregate Closing Consideration allocated to each of the Company Group entities that are treated as disregarded
as an entity separate from its regarded owner for U.S. federal income tax purposes (each, a “DRE”), such amount together
with the applicable portion of any assumed liabilities and any other relevant items or adjustments, shall be further allocated among
the assets of the DREs for U.S. federal, and applicable state and local, income Tax purposes in accordance with the principles of Section 1060
of the Code and the Treasury Regulations thereunder and the methodology set forth in Schedule 6.8(g) of the Company Disclosure Schedules
(such allocations, collectively, the “Closing Consideration Allocation”). If the Parent Company does not object by
written response to Buyer within forty-five (45) days after receipt of Buyer’s draft, the Closing Consideration Allocation shall
be final and binding on the Parties. If the Parent Company timely objects to any portion of the Closing Consideration Allocation, Buyer
and the Parent Company shall negotiate in good faith to resolve such dispute. If the Parent Company and the Buyer cannot resolve such
dispute within fifteen (15) days after delivery of the written objection by the Parent Company, then, within seven (7) days after
such fifteen (15) day period, the Parent Company and the Buyer shall submit the Closing Consideration Allocation prepared by Buyer and
the Parent Company’s response thereto to the Accounting Firm solely for the purposes of resolving such dispute consistent with
the principles set forth in this Section 6.8(g) and Schedule 6.8(g) of the Company Disclosure Schedules. The parties
and their Affiliates shall file all Tax Returns (including amended returns) and information reports in a manner consistent with the Closing
Consideration Allocation, as finally determined, and none of the parties hereto shall take any Tax position to the contrary on any Tax
Return, in any proceeding or audit, or examination, unless, and then only to the extent, otherwise required pursuant to a “final
determination” within the meaning of Section 1313 of the Code (or any similar provision of state, local or non-U.S. Law).
The Closing Consideration Allocation shall be updated from time to time to reflect adjustments to Final Aggregate Closing Consideration
(for Tax purposes) in a manner consistent with this Section 6.8(g). In the event that any Taxing Authority disputes the Closing
Consideration Allocation, Buyer or the Parent Company, as the case may be, shall promptly notify the other party in writing of the nature
of such dispute.
- 76 -
(h) Tax
Refunds. Any cash refunds of Taxes (or credits in lieu thereof actually applied to reduce cash Taxes otherwise payable by Buyer or
the Company Group or their Affiliates) of the Company Group entities, plus any interest with respect thereto, actually received from
a Taxing Authority for any Pre-Closing Tax Period (including, without limitation, refunds or credits arising by reason of Tax Returns
filed after the Closing) shall be for the account of Sellers. Buyer or the Company Group shall pay to the Parent Company for the benefit
of Sellers, within ten (10) Business Days after Buyer or the Company Group actually receive such refund (or actually apply such
credit), an amount of cash equal to the amount of such refunds or credit (plus any interest received), provided, however, that if any
portion of such refund or credit is subsequently disallowed by any Taxing Authority, then amounts previously paid hereunder in respect
thereof shall be promptly reimbursed by the payee to the payor.
Section 6.9 Employment
Matters.
(a) For
a period commencing on the Closing Date and ending on the twelve (12) month anniversary of the Closing Date (or, if earlier, the date
of the employee’s termination of employment), Buyer shall, or shall cause one of its Affiliates to, provide each Company Employee
as of immediately prior to the Closing or that are transferred to a Company Group entity in accordance with Section 6.12(c)(iii) (each,
a “Continuing Employee”) with (i) cash compensation (including base salary or base wages and cash incentive compensation
opportunities that are not equity based) that is substantially comparable to the cash compensation (including base salary or base wages
and cash incentive compensation opportunities that are not equity based) provided to such Continuing Employee immediately prior to the
Closing Date, and (ii) employee benefits (including standard severance and vacation benefits, but excluding defined benefit pension,
post-employment health and welfare (other than COBRA), and nonqualified deferred compensation benefits, enhanced severance and equity
based compensation) that are substantially comparable in the aggregate to the employee benefits provided to such individual immediately
prior to the Closing Date, subject to applicable local, state and/or federal law. Nothing herein shall prevent Buyer, its Affiliates
or any Company Group entity from terminating the employment of any employee during said 12-month period in compliance with applicable
Law.
- 77 -
(b) Buyer
shall use commercially reasonable efforts to ensure that Continuing Employees shall receive credit for all periods of employment and/or
service with the Company Group prior to the Closing Date (including with the Company Group and any predecessor employers where such service
was recognized by Sellers or the Company Group) for purposes of eligibility and, with respect to any vacation, leave, severance or similar
policies or programs, benefit accrual under any employee benefit plans (other than defined benefit plans), programs or arrangements (including,
without limitation, any severance and vacation plans, programs or arrangements) maintained by Buyer or any of its Affiliates on or after
the Closing Date, to the same extent as if such service had been performed for Buyer or any of its Affiliates, except to the extent that
recognition of such credit would result in a duplication of benefits.
(c) Buyer
acknowledges and agrees that, effective as of the Closing, the Continuing Employees shall cease to be eligible to participate in the
Seller Plans that provide group health plan benefits. Buyer shall use commercially reasonable efforts to ensure that, to the extent that
Buyer does not maintain after the Closing for any Continuing Employee any Company Plan that is a group welfare plan, (i) each Continuing
Employee shall be immediately eligible to participate, without any waiting period, in the corresponding group welfare benefit plan of
Buyer or its Affiliates providing benefits to any Continuing Employee on or after the Closing Date (“Buyer Welfare Plans”),
and (ii) for purposes of each Buyer Welfare Plan, Buyer shall, or shall use commercially reasonable efforts to cause one of its
Affiliates to, cause (A) each Buyer Welfare Plan to waive all preexisting condition exclusions, eligibility waiting periods, actively-at-work
requirements, and requirements to show evidence of good health with respect to participation and coverage requirements for each Continuing
Employee and his or her covered dependents (including domestic partners), unless such conditions would not have been waived or satisfied
under the comparable Seller Plan in which such Continuing Employee participated immediately prior to the Closing Date, and (B) any
eligible expenses incurred under any Seller Plan by such Continuing Employee and his or her covered dependents during the plan year in
which the Closing Date occurs and ending on the Closing Date to be taken into account under such Buyer Welfare Plan for purposes of satisfying
all deductibles, coinsurance payments, co-payments and maximum out-of-pocket requirements applicable to such Continuing Employee and
his or her covered dependents for the applicable plan year.
(d) Buyer
acknowledges and agrees that, effective as of the Closing (or, in the case of any employee transferred to a Company Group entity in accordance
with Section 6.12(c)(iii), effective as of the Government Contract Novation Date), each Continuing Employee shall cease to
be eligible to contribute to any Seller Plan that is qualified under Section 401(a) of the Code (each, a “Seller 401(k) Plan”).
Buyer shall, or shall cause one of its Affiliates to, establish or designate a tax-qualified defined contribution retirement plan with
a cash or deferred arrangement under Section 401(k) of the Code that is sponsored by the Buyer or one of its Affiliates (the
“Buyer 401(k) Plan”) that will cover Continuing Employees effective as of, or as soon as administratively practicable
following, the Closing Date or the Government Contract Novation Date, as applicable. Sellers shall (and shall cause each of its Affiliates
to) use reasonable best efforts for each Continuing Employee to be given the opportunity to receive a distribution of his or her account
balance (in cash, but also including any promissory notes for associated participant loans) from the Seller 401(k) Plan and elect
to roll over such account into the Buyer 401(k) Plan. Buyer shall use reasonable best efforts to cause the Buyer 401(k) Plan
to accept from the Seller 401(k) Plan the “direct rollover” of the account balance (including the in-kind rollover of
promissory notes evidencing all outstanding loans) of each Continuing Employee who participated in the Seller 401(k) Plan prior
to the Closing Date or the Government Contract Novation Date, as applicable, and who elects such direct rollover in accordance with the
terms of the Seller 401(k) Plan and the Code.
- 78 -
(e) In
addition to the requirements imposed by applicable Law, and except where prohibited by applicable Law, Buyer shall recognize and credit
each Continuing Employee’s paid time off, vacation or similar leave that is accrued but unused immediately prior to the Closing
or the Government Contract Novation Date, as applicable, under the vacation and leave policies applicable to the Continuing Employee
as of prior to the Closing or the Government Contract Novation Date, as applicable, in each case to the extent reflected in the Estimated
Closing Net Working Capital or in the Closing Funded Indebtedness.
(f) Buyer
shall, or shall cause its Affiliates to, honor and assume all obligations under the annual cash incentive and commission plans or programs
in effect for the fiscal year in which the Closing Date occurs, and shall pay such bonuses and commissions in the amounts and at the
times required by such plans or programs, in each case to the extent reflected in the Estimated Closing Net Working Capital or in the
Closing Funded Indebtedness.
(g) Nothing
contained in this Section 6.9 or any other provision of this Agreement, whether express or implied, shall be construed to
(i) create any third party beneficiary or other rights to any current or former employee, director, consultant, or independent contractor
of the Company Group, Buyer or their Affiliates (including any dependent or beneficiary thereof) or any other Person (including any union,
works council, or collective bargaining representative or any participant in any Company Plan or any Seller (or any dependent or beneficiary
thereof)) other than the Parties to this Agreement, (ii) create any right to employment or continued employment for any specified
period or to a particular term or condition of employment, or otherwise interfere with the rights of the Company Group, Buyer or any
of their respective Affiliates to amend or terminate any employee benefit plans at any time (to the extent permitted by applicable Laws),
discharge or discipline any employee, or change the terms of employment of any employee (to the extent permitted by applicable Laws),
or (iii) amend, terminate or otherwise modify any employee benefit plan of the Company Group, Buyer or any of their respective Affiliates,
in each case, to the extent the Company Group, Buyer, and their respective Affiliates comply with applicable Laws.
Section 6.10 Exclusive
Dealing.
(a) Except
for the Contemplated Transactions, during the period from the date hereof through the earlier of the Closing or the termination of this
Agreement, Parent Company, Sellers and the Companies shall not take (and shall use their commercially reasonable efforts to cause the
Companies’ Subsidiaries and their respective Affiliates and Representatives not to take) any action to knowingly encourage, initiate
or engage in discussions or negotiations with any Person (other than Buyer and its Affiliates and Representatives) concerning any sale
of the equity securities or assets of (including by merger or consolidation), any entity within the Company Group, or any of the Contracts
or assets to be transferred pursuant to the Contemplated Transactions (each such acquisition transaction, an “Acquisition Transaction”).
Parent Company, Sellers and the Company Group shall, and shall instruct their respective Affiliates and Representatives to, immediately
cease and terminate any discussions or negotiations with any third party (other than Buyer) that are ongoing with respect to any Acquisition
Transaction; provided that Buyer acknowledges that prior to the date of this Agreement, Sellers, the Company Group and their respective
Representatives have provided information relating to the Company Group and have afforded access to, and engaged in discussions with,
other Persons in connection with a proposed Acquisition Transaction.
- 79 -
(b) The
Parent Company will (i) promptly, upon written request from the Buyer, request each Person that has executed a confidentiality agreement,
that remains in effect as of the date hereof, in connection with its consideration of an Acquisition Transaction since January 1,
2025, to return or destroy (as provided in the terms of such confidentiality agreement) all confidential or non-public information concerning
the Business and (ii) promptly terminate (or cause to be terminated) all physical and electronic access previously granted to such
Person in respect of such Person’s consideration of any proposal or offer with respect to any Acquisition Transaction.
Section 6.11 Pre-Closing
Restructurings.
(a) The
Parent Company shall cause the following transactions (the “Restructuring Transactions”) to be completed prior to
the Closing:
(i) the
Parent Company shall cause the Company Group to transfer, convey and assign all Intellectual Property and Information Technology that
is owned by, leased by, or licensed to the Company Group but is neither used or held for use in, nor necessary for the conduct of, the
Business to the Parent Company or a Subsidiary of the Parent Company that is not a Company Group entity, as identified on Schedule 6.11(a)(i) of
the Company Disclosure Schedule;
(ii) the
Parent Company shall, and shall cause any relevant Subsidiary thereof that is not a Company Group entity to, transfer, convey and assign
to the applicable Company Group entity, free and clean of all Liens (other than Permitted Liens), pursuant to an assignment agreement
in the form of Exhibit F (the “IP and IT Assignment Agreement”), all Intellectual Property and Information
Technology that is owned by, leased by, or licensed to the Parent Company or to any Subsidiary thereof that is not a Company Group entity
but is used or held for use solely in, or necessary for the conduct of, the Business, identified on Schedule 6.11(a)(ii) of the
Company Disclosure Schedule;
(iii) the
Parent Company and its applicable Subsidiaries shall transfer to a Company Group entity the employment of, and all employment-related
Contracts, if any, copies of personnel records, paid time off accruals and company-sponsored work visas associated with, each employee
of the Parent Company or its Subsidiaries listed on Schedule 6.11(a)(iii) of the Company Disclosure Schedule who provides services
to the Business but who is not currently employed by a Company Group entity;
(iv) the
Parent Company shall cause the Company Group to transfer to the Parent Company or a Subsidiary of the Parent Company that is not a Company
Group entity the employment of, and all employment-related Contracts, if any, copies of personnel records, paid time off accruals and
company-sponsored work visas associated with, each employee of the Company Group listed on Schedule 6.11(a)(iv) of the Company Disclosure
Schedule who does not provide services to the Business; and
- 80 -
(v) the
Parent Company shall, and shall cause any relevant Subsidiary thereof that is not a Company Group entity to, transfer, convey and assign
to the applicable Company Group entity, free and clean of all Liens (other than Permitted Liens) the other assets used in the Business
identified on Schedule 6.11(a)(v) of the Company Disclosure Schedule.
(b) The
Parent Company shall, and shall cause its applicable Subsidiaries to, use reasonable best efforts to transfer, convey and assign, free
and clean of all Liens (other than Permitted Liens), the Contracts identified on Schedule 6.11(b) of the Company Disclosure Schedule
(which, when taken together with the Government Contracts identified on Schedule 6.12(a)(i) or Schedule 6.12(a)(ii) and all
Contracts to which a Company Group entity is a party, will constitute all Contracts that are used in, or are necessary for the conduct
of, the Business), to the Company Group entity identified on Schedule 6.11(b) of the Company Disclosure Schedule. Notwithstanding
anything to the contrary in this Agreement, and subject to the provisions of this Section 6.11(b), to the extent that the
transfer, conveyance and assignment or attempted transfer, conveyance and assignment pursuant to this Section 6.11(b) would
result in a violation of applicable Law, or would require the consent, authorization, approval or waiver of a Person who is not a party
to this Agreement or an Affiliate of a party to this Agreement, and such consent, authorization, approval or waiver shall not have been
obtained prior to the Closing, this Agreement shall not constitute an assignment or attempted assignment of the applicable Contract;
provided, however, that, subject to the satisfaction or waiver of the conditions contained in Article VII,
the Closing shall occur notwithstanding the foregoing without any adjustment to the Estimated Aggregate Closing Consideration or the
Final Aggregate Closing Consideration on account thereof. Following the Closing, Sellers and Buyer shall use reasonable best efforts,
and shall cooperate with each other, to obtain any such required consent, authorization, approval or waiver, or any release, substitution
or amendment required to novate all liabilities and obligations under any and all applicable Contracts or to obtain in writing the unconditional
release of all parties to such arrangements, so that, in any case, Buyer shall be solely responsible for such liabilities and obligations
from and after the Closing Date and would exclusively enjoy all benefits from and after the Closing Date; provided, however,
that neither Sellers or their Affiliates nor Buyer or any Company Group entity shall be required to pay any consideration therefor. Once
such consent, authorization, approval, waiver, release, substitution or amendment is obtained, Sellers shall assign to the applicable
Company Group entity identified on Schedule 6.11(b) of the Company Disclosure Schedule the relevant Contract to which such consent,
authorization, approval, waiver, release, substitution or amendment relates for no additional consideration. To the extent that any Contract
identified on Schedule 6.11(b) of the Company Disclosure Schedule cannot be assigned to the Company Group entity identified on Schedule
6.11(b) of the Company Disclosure Schedule following the Closing pursuant to this Section 6.11(b), Buyer and Sellers
shall use reasonable best efforts to enter into such arrangements (such as subleasing, sublicensing or subcontracting) to provide to
the parties the economic and, to the extent permitted under applicable Law, operational equivalent of the transfer of such Contracts
to Buyer or a Company Group entity as of the Closing and the performance by Buyer or a Company Group entity of its obligations with respect
thereto.
- 81 -
Section 6.12 Government
Contracts Novation.
(a) Sellers
shall use reasonable best efforts to cause each Government Contract that is a prime contract whose period of performance has not expired
and that is related to the Business that is identified on Schedule 6.12(a)(i) of the Company Disclosure Schedule (each, an “Active
Government Contract”) and each inactive Government Contract that is a prime contract where the services have been performed
but is not formally closed out and that is identified on Schedule 6.12(a)(ii) of the Company Disclosure Schedules (each, an “Inactive
Government Contract”) to be novated, free and clean of all Liens (other than Permitted Liens), to the Company Group entity
identified on Schedule 6.12(a)(i) or 6.12(a)(ii) of the Company Disclosure Schedule, as applicable, pursuant to FAR Part 41,
Subpart 42.12, and to obtain the applicable approval related to any such novations (the “Government Contract Novations”).
The parties understand and agree that Inactive Government Contracts may be closed out or terminated rather than novated at the discretion
of the relevant Governmental Authority. To the extent such closeout occurs after Closing, the parties will coordinate, at their own expense,
to satisfy any requests and Buyer and its Affiliates, as applicable, will provide such documents and data as is reasonably necessary
to close out such contracts. The Parent Company and Buyer will keep each other apprised of the status of matters relating to the approval
or closeout of the Government Contract Novations and work cooperatively in connection with obtaining the requisite approval or closeout,
including: (i) cooperating with the other party in connection with filings with Governmental Authorities, including, with respect
to the party making a filing, (A) providing copies of all such documents to the non-filing party and its advisors prior to filing
(other than documents containing confidential business information that will be shared only with outside legal counsel to the non-filing
party), and (B) if requested, accepting all reasonable additions, deletions or changes suggested in connection with any such filing;
(ii) furnishing to each other all information required for any application or other filing to be made in connection with the Government
Contract Novations; (iii) promptly notifying the other of, and if in writing furnishing the other with copies of, any material communications
from or with any Governmental Authority with respect to the Government Contract Novations or closeout; (iv) permitting the other
party to review in advance and considering in good faith the views of one another in connection with any proposed material communication
with any Governmental Authority in connection with the Government Contract Novations or closeout; (v) not agreeing to participate
in any meeting or material discussion with any Governmental Authority in connection with the Government Contract Novations unless it
consults with the other party in advance, and, to the extent permitted by such Governmental Authority, gives the other party the opportunity
to attend and participate in such meetings or discussions; and (vi) consulting and cooperating with one another in connection with
any request for any assurances, written or oral, as any such Governmental Authority may request in connection with the Government Contract
Novations or closeout. If either party or any Affiliate thereof receives a request for additional information, documentary material,
or additional assurances from any such Governmental Authority with respect to the Government Contract Novations or closeout, then such
party will endeavor in good faith to make, or cause to be made, as soon as practicable and after consultation with the other party, an
appropriate response in compliance with such request.
- 82 -
(b) Notwithstanding
anything to the contrary in Section 6.12(a), and for avoidance of doubt, approval of the Government Contract Novations shall
not be a condition to the obligations of the parties hereto to consummate the Contemplated Transactions and, subject to the satisfaction
or waiver of the conditions contained in Article VII, the Closing shall occur notwithstanding any failure to approve the
Government Contract Novations without any adjustment to the Estimated Aggregate Closing Consideration or the Final Aggregate Closing
Consideration on account thereof. In the event that the Government Contract Novations have not been approved prior to the Closing, the
applicable Company Group entity identified on Schedule 6.12(a)(i) or 6.12(a)(ii) of the Company Disclosure Schedule, as applicable,
in respect of the applicable Government Contracts shall enter into a sub-contract pending novation agreement effective as of the Closing
in the form attached hereto as Exhibit D with the Company Group entity identified on Schedule 6.12(a)(i) or 6.12(a)(ii) of
the Company Disclosure Schedule, as applicable, in respect of such Government Contacts (the “Government Contract Transition
Agreement”), pursuant to which such Company Group entity identified on Schedule 6.12(a)(i) or 6.12(a)(ii) of the
Company Disclosure Schedule, as applicable, in respect of such Government Contracts shall perform its obligations under such Government
Contracts for the benefit the Company Group entity identified on Schedule 6.12(a)(i) or 6.12(a)(ii) of the Company Disclosure
Schedule, as applicable, in respect of such Government Contracts until such time as the Government Contract Novations shall have been
approved or such contracts have been closed out. Buyer acknowledges that certain of the Active Government Contracts require the issuance
of a facility security clearance and that, until and unless Buyer has or maintains such clearance, its access to information regarding
performance of such contracts may be limited.
(c) For
the avoidance of doubt, Government Contract Novations will be deemed approved as of the date the U.S. Government recognizes the transfer
of the Government Contracts by entering into a novation agreement with the Company and the applicable entity and issuing a contract modification
recognizing the applicable entity as the successor-in-interest to the Government Contracts. The Government Contracts identified on Schedule
6.12(a)(i) and 6.12(a)(ii) of the Company Disclosure Schedules will not transfer until that certain contract modification has
been issued by the applicable Governmental Authority. Until the Government Contract Novations have been approved, neither Buyer nor any
of its affiliates will take any action to terminate, withdraw or interfere with the Company’s request for such Government Contract
Novations.
(d) From
and after the Closing until the earlier of (1) the expiration of the term of such Active Government Contract, and (2) the Government
Contract Novation Date, Buyer will obtain, to the fullest extent practicable and not prohibited by any applicable Law or any Government
Contract, the claims, rights, remedies and benefits (including any credits due under any such Government Contract to the extent arising
by reason of any rate adjustment that results in a true up or cost adjustment in each case to the extent incurred in connection with
work performed under such Government Contract prior to the Closing) of any such Active Government Contract (and Parent Company, at Buyer’s
sole cost and expense, shall enforce such claims, rights, and benefits at the direction of, and all of the Liabilities related to, such
Active Government Contract (including by means of any subcontracting, sublicensing or subleasing arrangement) and pay, perform or discharge
when due any such Liability (including any Liability for Taxes).
- 83 -
(e) For
purposes of this Agreement:
“Novated
Government Gains” means the aggregate amount of any cash payments, refunds, or credits actually received by Buyer, the Company
Group, or any of their respective Affiliates following the Closing Date from a Governmental Authority resulting directly from the final
closeout, settlement, or equitable adjustment of any Inactive Government Contract (net of any reasonable, documented, out-of-pocket costs
and expenses (including Taxes) incurred by Buyer or the Company Group in obtaining such amounts).
“Novated
Government Losses” means the aggregate amount of any Liabilities, costs, damages, penalties, or expenses (including reasonable
attorneys' fees and costs of investigation) actually incurred or paid by Buyer, the Company Group, or any of their respective Affiliates
following the Closing Date resulting directly from the audit, final closeout, settlement, or equitable adjustment of any Inactive Government
Contract.
Promptly following the date that is two (2) years
after the Closing Date (the “True-Up Date”), Buyer and the Parent Company shall jointly calculate the aggregate Novated
Government Gains and the aggregate Novated Government Losses incurred or realized from the Closing Date through the True-Up Date. If
the aggregate Novated Government Gains exceed the aggregate Novated Government Losses, and the amount of such excess (the “Net
Gains”) is greater than $100,000 (the “Threshold Amount”), then Buyer shall pay to the Parent Company (for
the benefit of Sellers) an amount equal to the Net Gains minus the Threshold Amount. If the aggregate Novated Government Losses exceed
the aggregate Novated Government Gains, and the amount of such excess (the “Net Losses”) is greater than the Threshold
Amount, then Sellers shall, jointly and severally, pay to Buyer an amount equal to the Net Losses minus the Threshold Amount. Any payment
required to be made pursuant to this Section 6.12(e) shall be made in cash by wire transfer of immediately available
funds to an account designated by the receiving party within ten (10) Business Days following the final determination of the calculations
set forth herein. Any dispute with respect to this Section 6.12(e) shall be resolved pursuant to the mechanism set forth
in Section 2.4(d) mutatis mutandis.
(f) The
parties shall each provide access to the other parties during normal business hours to any relevant books, records, or documents and
agree to preserve and not alter or destroy any such books, records, or documents in the possession of those parties that are reasonably
needed to successfully settle or close any Novated Contract. The parties shall fully cooperate with one another in the review of such
materials, including by making available the appropriate employees, accountants, and other personnel to the extent reasonably requested
at no cost to the other party.
Section 6.13 Further
Actions. Subject to the other express provisions of this Agreement, upon the request of any party to this Agreement, the other parties
will execute and deliver such other documents, instruments and agreements as the requesting party may reasonably require for the purpose
of carrying out the intent of this Agreement and the Contemplated Transactions.
- 84 -
Section 6.14
Restrictive Covenants.
(a) For
a period commencing on the Closing Date and ending on the second anniversary of the Closing Date (the “Restricted Period”),
each of the Parent Company, the Sellers, their respective Affiliates and their respective successors and assignees (for the purpose of
this Section 6.14, each a “Selling Party” and collectively, the “Selling Parties”)
shall not, directly or indirectly, (i) engage in or assist others engaging in any business that competes with the business of the
Company Group on or prior to the Closing Date; or (ii) have an interest in any Person that engages directly or indirectly in any
business that competes with the business of the Company Group on or prior to the date of the Closing Date in any capacity, including
as a partner, stockholder, member, employee or consultant, provided, however, that each of clauses (i) and
(ii) shall apply to all territories in the world in which the Company Group operates, registered or qualified to do business
as conducted and as proposed to be conducted, including any research and development activities, or own or lease properties or assets
(the “Restricted Territory”); provided that in the event of a Parent Company Change of Control, the restrictions
set forth in this Section 6.14 shall not apply to the Person acquiring the Parent Company or to any of such acquiring Person’s
affiliates other than the Parent Company.
(b) During
the Restricted Period and at the Restricted Territory, each Selling Party shall not, directly or indirectly, hire or solicit any employee
of the Company Group on the Closing Date or within 12 months prior to the Closing Date, or encourage any such employee to leave such
employment or hire any such employee who has left such employment; provided, however, that (i) a general solicitation
advertisement, posting or similar job solicitation process not targeting the employees of the Company Group shall not be deemed to cause
a breach of this Section 6.14(b); and (ii) nothing in this Section 6.14(b) shall restrict the Selling
Parties from directly or indirectly soliciting, hiring or engaging any employee who has not been employed by or engaged with the Company
Group, Buyer or Buyer’s Affiliates during the six-month period immediately prior to such solicitation, hiring or engagement.
(c) During
the Restricted Period and in the Restricted Territory, each Selling Party shall not, directly or indirectly, cause, induce or encourage
any material client, customer, supplier or licensor of the Company Group or any other Person who has a material business relationship
with the Company Group to terminate or modify in any manner any such relationship.
(d) If
a Selling Party breaches, or threatens to commit a breach of, any of the provisions of this Section 6.14, Buyer shall have
the right to have such provision specifically enforced by any Chosen Court, it being acknowledged and agreed that any such breach or
threatened breach may cause irreparable injury to the Buyer and that money damages may not provide an adequate remedy to the Buyer, which
remedy is in addition to, and not in lieu of, any other rights and remedies available to the Buyer under Law or in equity.
Section 6.15 Financing
Cooperation.
(a) Prior
to the Closing, Parent Company shall use its commercially reasonable efforts, and shall cause the Sellers, the Company Group entities
and their respective Representatives to use their commercially reasonable efforts, to provide all customary cooperation and all customary
financial information, in each case that is reasonably requested by Buyer in connection with any financing obtained or to be obtained
by Buyer or any Affiliate thereof for the purpose of financing the Contemplated Transactions or any transaction undertaken in connection
therewith.
- 85 -
(b) Prior
to Closing, Parent Company shall use its commercially reasonable efforts, and shall cause the Sellers, the Company Group entities and
their respective Representatives to use their commercially reasonable efforts, to provide to Buyer any additional unaudited combined
balance sheet of the Company Group and related combined statements of operations and comprehensive income and cash flows for such periods
as shall be required in order to enable Buyer to comply with the pro forma financial information required to be filed by Buyer with the
Securities and Exchange Commission in accordance with Reg S-X, Article 11, provided that Buyer shall (i) have notified
Sellers in writing at least sixty (60) days prior to the Closing Date of what financial statements are required and (ii) be responsible
for the fees and expenses incurred in connection with the preparation of the financial statements contemplated by this Section 6.15(b).
Section 6.16 Rights
to Comtech Names and Marks.
(a) No
later than the date which is six (6) months following the Closing, Parent Company shall, and shall cause each of its Subsidiaries
to, change its name to a name that does not contain “Comtech” or any of the other Comtech Names and Marks. Parent Company,
for itself and its Affiliates, acknowledges and agrees that, from and after the Closing, except as provided in Section 6.16(b),
neither Sellers nor any of their Affiliates will have any right, title, interest or license in or to any of the Comtech Names and Marks
or any goodwill of the business associated therewith and that neither Sellers nor any of their Affiliates will contest the ownership
or validity of any rights of Buyer, any of its Affiliates or any relevant licensor(s) of the Comtech Names and Marks in or to any
of the Comtech Names and Marks.
(b) Effective
as of the Closing, Buyer, on behalf of itself and the Company Group entities, hereby grants to Parent Company and its Subsidiaries (each,
a “Licensee” and together, the “Licensees”), a non-exclusive, world-wide, royalty-free, right to
use the Comtech Names and Marks in connection with the conduct and operation of their respective business, including to transition and
rebrand the businesses, for a period of up to six (6) months after the Closing (the “End-of-Use Date”), provided
that Licensees shall use commercially reasonable efforts to cease actively using the Comtech Names and Marks in marketing materials by
six (6) months after the Closing. Any usage of Comtech Names and Marks by a Licensee shall be consistent in all material respects
with the practices of the Licensees prior to Closing and in a manner that does not disparage the reputation or goodwill of the Comtech
Names and Marks. Licensees shall permanently cease all use of the Comtech Names and Marks no later than the End-of-Use Date, provided
that Licensees may continue to use the Comtech Names and Marks (i) on internal business records and for other internal uses, (ii) in
a neutral, non-trademark manner, including to describe the history of the Licensees, (iii) as required by applicable Law, (iv) to
the extent necessary to perform any contractual obligations of the Licensees in place as of the Closing Date, or (v) as otherwise
would not be trademark infringement or as permitted by “fair use” principles. Licensees agree that any use of the Comtech
Names and Marks shall accrue for the benefit of the Company Group. Any Licensee goods and services provided under the Comtech Names and
Marks must be of substantially the same quality as relevant goods and services sold by the Business as of the Closing.
- 86 -
Section 6.17 Excluded
Receivables. After Closing, Buyer and its Affiliates shall, and shall cause the Company Group entities to, use commercially reasonable
good faith efforts to collect the Excluded Receivables, provided that in no event shall Buyer, its Affiliates or the Company Group
entities offer or agree to any discounts or other concessions without the prior written consent of the Parent Company (which shall not
be unreasonably withheld or delayed). With respect to the proceeds of the Excluded Receivables, the parties agree as follows:
(a) The
Parent Company shall be entitled to receive seventy-five percent (75%) of the payments under the Excluded Receivables actually received
by Buyer and its Affiliates prior to the second (2nd) anniversary of the Closing Date (the “Measurement Period”),
net of seventy-five percent (75%) of the reasonable and documented expenses incurred by Buyer and its Affiliates (including the Company
Group) in connection with the performance, delivery, warranty and collections of such Excluded Receivables, and (ii) any Income
Taxes imposed on or payable by Buyer or any of its Affiliates (including the Company Group) attributable to such payments (“Parent
Company Portion”).
(b) Promptly,
but in any event no later than ten (10) Business Days, following receipt by Buyer or any Company Group entity of any amount with
respect to the Excluded Receivables during the Measurement Period, Buyer shall, or shall cause the applicable Company Group entity to,
remit to the Parent Company the Parent Company Portion in cash by wire transfer of immediately available funds to an account or accounts
designated by the Parent Company, together with a statement showing the gross proceeds received and a reasonably detailed explanation
of the expenses deducted from such gross proceeds.
Section 6.18 Wrong
Pockets; Payments.
(a) In
addition to, and without limiting the obligations of the Sellers under Section 6.11 and Section 6.12 or the Buyer
and its Affiliates under Section 6.17, if after the Closing either Buyer, on the one hand, or Sellers, on the other hand,
becomes aware that any asset (including any Contract, Intellectual Property or Information Technology) that is used in, or necessary
for the conduct of, the Business has not been transferred, assigned or conveyed to Buyer or the Company Group, and such asset is held
by the Parent Company or any of its Subsidiaries (other than the Company Group), then the discovering Party shall promptly notify the
other Party, and Sellers shall (and shall cause their applicable Subsidiaries to) as promptly as reasonably practicable transfer, assign,
and convey the relevant asset to the appropriate Company Group entity, free and clear of all Liens (other than Permitted Liens), at the
sole cost and expense of Sellers.
(b) Sellers
shall, or shall cause their applicable Subsidiaries to, promptly pay or deliver to Buyer (or its designated Company Group entity) any
monies or checks that have been sent to or that are received by Sellers or any of their Subsidiaries after the Closing to the extent
that they relate to the Business.
(c) Buyer
shall, or shall cause its applicable Subsidiaries to, promptly pay or deliver to Sellers (or their designated Subsidiaries) any monies
or checks that have been sent to or that are received by Buyer or any of its Subsidiaries to the extent that they relate to the business
of Sellers other than the Business.
Section 6.19 CMMC
Compliance. From the date of this Agreement through the Closing Date, the Parent Company shall, and shall cause its Affiliates (including
the Company Group) to, use their reasonable best efforts to comply in all material respects with all Cybersecurity Maturity Model Certification
(“CMMC”) requirements and obligations applicable to the Business and the Company Group, including obtaining CMMC Level 2
certification, to the extent necessary for Government Contracts and subcontracts.
Section
6.20 FCC Licenses.
(a) In
the event any of the approvals set forth in sub-sections 2, 3 and 4 of Schedule 3.4 of the Company Disclosure Schedule (the “Scheduled
Approvals”) are not obtained prior to Closing, Buyer shall be deemed, as of the Closing Date, the sole economic owner
of all satellite monitoring activity included in the Business, as well as such portions of the Business whose operations require receipt
of the Scheduled Approvals (collectively, the “Regulated Business”) and shall be entitled to all profits, income,
cash flow, distributions, proceeds, appreciation in value and other economic benefits arising from the ownership or operation of the
Regulated Business and shall bear all economic burdens associated therewith. Sellers shall cause the Regulated Business to be operated
for the sole economic benefit of Buyer and shall promptly remit to Buyer all such economic benefits received by Seller or any of its
Affiliates after the Closing Date, net of all expenses of operating the Regulated Business for the benefit of Buyer incurred by Sellers.
Any such amounts held by Seller or its Affiliates shall be held in trust for the benefit of Buyer pending transfer.
(b) Subject
at all times to applicable Law and the terms of any Scheduled Approval, Seller shall operate the Regulated Business in accordance with
Buyer's instructions and shall not, without Buyer's prior written consent (not to be unreasonably withheld, delayed or conditioned),
take or omit to take any action outside the ordinary course of business, including with respect to capital expenditures, budgets, material
contracts, material customer or supplier arrangements, indebtedness, hiring or termination of senior personnel, compensation matters,
settlements of claims, or other material operational decisions.
(c) The
parties shall implement such hold-separate, agency, nominee, trust, management, services or other arrangements as may be necessary or
advisable to ensure that Buyer receives the full economic benefits and burdens of ownership of the Regulated Business from and after
the Closing Date and, to the maximum extent permitted by applicable Law, the Regulated Business is operated in a manner consistent with
Buyer’s ownership interests pending receipt of all required Scheduled Approvals.
- 87 -
ARTICLE VII
CONDITIONS PRECEDENT TO OBLIGATION TO CLOSE
Section 7.1 Conditions
to the Obligation of Buyer. The obligation of Buyer to consummate the Contemplated Transactions is subject to the satisfaction, on
or before the Closing Date, of each of the following conditions (any of which may be waived by Buyer, in whole or in part):
(a) Accuracy
of Representations and Warranties Regarding the Company Group. The representations and warranties regarding the Company Group set
forth in Article III (other than the Company Group Fundamental Representations), shall be true and correct in all respects
as of the Closing (except to the extent any such representation or warranty speaks as of a specific date, in which case such representation
or warranty must have been true and correct in all respects as of such date), except where the failure of such representations and warranties
to be so true and correct (without regard for any “material”, “Company Material Adverse Effect” or similar qualification,
other than with respect to Section 3.5(b) (last two sentences), Section 3.7(a) and the definition of
“Material Contracts”) would not, individually or in the aggregate, constitute a Company Material Adverse Effect. Each of
the Company Group Fundamental Representations shall be true and correct in all respects, except for de minimis inaccuracies, as
of the Closing Date as though made on and as of the Closing Date, except that representations and warranties that are made as of a specific
date need to be true and correct in all respects, except for de minimis inaccuracies, only as of such date.
(b) Accuracy
of Representations and Warranties of the Sellers. The representations and warranties of the Sellers set forth in Article IV
shall be true and correct in all respects as of the Closing (except to the extent any such representation or warranty speaks as of a
specific date, in which case such representation or warranty must have been true and correct in all respects as of such date), except
where the failure of such representations and warranties to be so true and correct (without regard for any “material”, “Company
Material Adverse Effect” or similar qualification) would not, individually or in the aggregate, have a material adverse effect
on a Seller’s ability to perform their obligations under this Agreement or any Ancillary Agreement to which they are a party or
to timely consummate the Contemplated Transactions.
(c) Performance
of Covenants. All of the covenants and obligations that Parent Company, Sellers or the Companies are required to perform or comply
with under this Agreement on or before the Closing Date must have been duly performed and complied with in all material respects;
(d) No
Company Material Adverse Effect. Since the date of this Agreement, there shall not have been any Company Material Adverse Effect;
(e) HSR
Act and Other Antitrust Laws. All applicable waiting periods, and any extensions thereof, under the HSR Act must have expired or
otherwise been terminated and all other required approvals listed on Schedule 7.1(e) of the Company Disclosure Schedule under other
Antitrust Laws must have been obtained;
- 88 -
(f) Regulatory.
The waiting period applicable to the Contemplated Transactions under the U.S. National Security Laws and any other Foreign Investment
Laws set forth on Schedule 7.1(f) shall have expired or been terminated, all consents, approvals, clearances, actions or non-actions
required for the consummation of the Contemplated Transactions under the U.S. National Security Laws (including receipt of CFIUS Approval)
and any other Foreign Investment Laws set forth on Schedule 7.1(f) of the Company Disclosure Schedule shall have been obtained,
and any agreement with a Governmental Authority not to consummate the Contemplated Transactions shall have expired or been terminated.
(g) Financial
Statements. The Sellers shall have delivered to Buyer (i) an audited combined balance sheet of the Company Group as of July 31,
2026 and 2025, and the related combined statements of operations and comprehensive income, changes in equity/capital, and cash flows
for the fiscal years then ended, prepared in accordance with GAAP and audited by the Company Group’s auditor in accordance with
GAAP and AICPA standards consistently applied (“Audited Financial Statements”); provided that if the Closing
Date occurs prior to October 31, 2026, the Sellers shall only have been required to deliver the audited financial statements as
of and for the years ended July 31, 2024 and July 31, 2025; and (ii) unaudited combined balance sheet of the Company Group
as of end of the latest fiscal quarter ending prior to the Closing Date, and the related combined statements of operations and comprehensive
income, changes in equity/capital, and cash flows for the interim period then ended (together with the comparative statements for the
corresponding interim period in the prior year), prepared in accordance with GAAP consistently applied (“Unaudited Financial
Statements”).
(h) No
Action. There must not be in effect any Law or Order that would prohibit or make illegal the consummation of the Contemplated Transactions;
and
(i) Transaction
Documents. Sellers must have delivered or caused to be delivered each document that Section 2.5(a) requires them
to deliver.
If the Closing occurs, all closing conditions
set forth in this Section 7.1 which have not been fully satisfied as of the Closing shall be deemed to have been waived by Buyer.
Section 7.2 Conditions
to the Obligation of Sellers and the Companies. The obligation of Sellers and the Companies to consummate the Contemplated Transactions
is subject to the satisfaction, on or before the Closing Date, of each of the following conditions (any of which may be waived by the
Parent Company, in whole or in part):
(a) Accuracy
of Representations and Warranties. The representations and warranties of Buyer in Article V must be true and correct
in all respects as of the Closing (except to the extent any such representation or warranty speaks as of a specific date, in which case
such representation or warranty must have been true and correct in all material respects as of such date), except where the failure of
such representations and warranties to be so true and correct (without regard for any “material”, “material adverse
effect” or similar qualification) would not, individually or in the aggregate, have a material adverse effect on Buyer’s
ability to perform its obligations under this Agreement or any Ancillary Agreement to which it is a party or to timely consummate the
Contemplated Transactions;
- 89 -
(b) Performance
of Covenants. All of the covenants and obligations that Buyer is required to perform or comply with under this Agreement on or before
the Closing Date must have been duly performed and complied with in all material respects;
(c) HSR
Act. All applicable waiting periods, and any extensions thereof, under the HSR Act must have expired or otherwise terminated, and
all other approvals listed on Schedule 7.1(e) under other Antitrust Laws must have been obtained;
(d) No
Action. There must not be in effect any Law or Order that would prohibit or make illegal the consummation of the Contemplated Transactions;
and
(e) Regulatory.
The waiting period applicable to the Contemplated Transactions under the U.S. National Security Laws and any other Foreign Investment
Laws set forth on Schedule 7.1(f) of the Company Disclosure Schedule shall have expired or been terminated, all consents, approvals,
clearances, actions or non-actions required for the consummation of the Contemplated Transactions under the U.S. National Security Laws
(including receipt of CFIUS Approval) and any other Foreign Investment Laws set forth on Schedule 7.1(f) shall have been obtained,
and any agreement with a Governmental Authority not to consummate the Contemplated Transactions shall have expired or been terminated;
(f) Transaction
Documents. Buyer must have delivered or caused to be delivered to Sellers each document that Section 2.5(b) requires
it to deliver.
If the Closing occurs, all closing conditions
set forth in this Section 7.2 which have not been fully satisfied as of the Closing shall be deemed to have been waived by
the Company and Sellers.
ARTICLE VIII
Termination
Section 8.1 Termination
Events. This Agreement may, by written notice given before or at the Closing, be terminated:
(a) by
mutual consent of Buyer and the Parent Company;
(b) by
Buyer (so long as Buyer is not then in material breach of any of its representations, warranties or covenants contained in this Agreement)
if there has been a breach of any of Sellers’ or the Companies’ representations, warranties or covenants contained in this
Agreement, which would result in the failure of a condition set forth in Section 7.1(a), Section 7.1(b) or
Section 7.1(c), and which breach has not been cured within fifteen (15) days after written notice of the breach has been
delivered to the Parent Company by Buyer;
(c) by
Sellers (so long as the Companies and Sellers are not then in material breach of any of their representations, warranties or covenants
contained in this Agreement) if there has been a breach of any of Buyer’s representations, warranties or covenants contained in
this Agreement, which would result in the failure of a condition set forth in Section 7.2(a) or Section 7.2(b),
and which breach has not been cured within fifteen (15) days after written notice of the breach has been delivered to Buyer by the Parent
Company;
- 90 -
(d) by
either Buyer or Sellers if any Governmental Authority has issued a non-appealable final Order or taken any other non-appealable final
action, in each case having the effect of permanently restraining, enjoining or otherwise prohibiting the Contemplated Transactions;
provided, however, that the right to terminate this Agreement under this Section 8.1(d) will not be available
to any party whose failure to fulfill any material covenant under this Agreement, has been the cause of or resulted in the action or
event described in this Section 8.1(d) occurring;
(e) by
Buyer if the Closing has not occurred on or before the Outside Date, provided that Buyer shall have no right to terminate this
Agreement pursuant to this Section 8.1(e) if at such date the only remaining conditions to Closing that have not been
satisfied or waived are any conditions which, by their nature, can only be satisfied at the Closing; provided further, that the
right to terminate this Agreement pursuant to this Section 8.1(e) shall not be available to Buyer if Buyer is in
breach of any covenant, agreement, representation or warranty contained in this Agreement, which breach has prevented the satisfaction
of any condition set forth in Section 7.2(a) or Section 7.2(b); and provided further, that Buyer
may elect to extend the Outside Date by up to ninety (90) days in one or more extensions, if the condition to Closing set forth in Section 7.1(e) or
Section 7.1(f) remains unsatisfied and have not been waived on the Outside Date; and
(f) by
Sellers if the Closing has not occurred on or before the Outside Date, provided that Sellers shall have no right to terminate
this Agreement pursuant to this Section 8.1(f) if at such date the only remaining conditions to Closing that have not
been satisfied or waived are any conditions which, by their nature, can only be satisfied at the Closing; provided further, that the
right to terminate this Agreement pursuant to this Section 8.1(f) shall not be available to Sellers if any Seller
is in breach of any covenant, agreement, representation or warranty contained in this Agreement, which breach has prevented the satisfaction
of any condition set forth in Section 7.1(a) or Section 7.1(b); and provided further, that Sellers
may elect to extend the Outside Date by up to ninety (90) days in one or more extensions, if the condition to Closing set forth in Section 7.2(c) or
Section 7.2(e) remains unsatisfied and have not been waived on the Outside Date.
Section 8.2 Effect
of Termination.
(a) If
this Agreement is terminated pursuant to Section 8.1, this Agreement and all rights and obligations of the parties under
this Agreement automatically end without Liability against any party or its Affiliates, except that Section 6.4(a) (Confidentiality),
Section 6.5 (Public Announcements), Section 8.3 (Certain Effects of Termination), Section 8.4 (Return
of Advance Payment), Article X (Miscellaneous) (except for Section 10.15 (Specific Performance)) and this Section 8.2
will remain in full force and survive any termination of this Agreement.
- 91 -
(b) If
this Agreement is terminated by a party because of the knowing and intentional breach of this Agreement by the other party or because
one or more of the conditions to the terminating party’s obligations under this Agreement is not satisfied as a result of the other
party’s knowing and intentional failure to comply with its obligations under this Agreement, the terminating party’s right
to pursue all legal remedies will survive such termination unimpaired. Such terminating party may petition a court to award damages in
connection with any breach by the breaching party of the terms and conditions set forth in this Agreement, and the parties agree that
such damages shall not be limited to reimbursement of expenses or out-of-pocket costs. For the avoidance of doubt, the parties hereby
agree that (i) if Buyer does not agree to close the Contemplated Transactions in circumstances in which all of the conditions set
forth in Section 7.1 (other than conditions to be performed at the Closing) have been satisfied, or waived by Buyer, such
failure or refusal to close shall be deemed to be a willful breach of this Agreement by Buyer, and (ii) if Sellers or the Companies
do not agree to close the Contemplated Transactions in circumstances in which all of the conditions set forth in Section 7.2
(other than conditions to be performed at the Closing) have been satisfied, or waived by Parent Company, such failure or refusal to close
shall be deemed to be a willful breach of this Agreement by the Parent Company, the Sellers and the Companies. In such case, each respective
party may enforce such award and accept damages for such breach.
Section 8.3 Certain
Effects of Termination. If Buyer or Sellers terminate this Agreement pursuant to Section 8.1, Buyer will comply with
the Confidentiality Agreement regarding the return and/or destruction of any information furnished to Buyer in connection with this Agreement.
Section 8.4 Return
of Advance Payment.
(a) In
the event that this Agreement is terminated for any reason pursuant to Section 8.1, Sellers shall have no obligation to repay
the Advance Payment, and shall be entitled to retain the Advance Payment, if at the time of such termination (i) all of the conditions
set forth in Section 7.1 and Section 7.2 have been satisfied or waived (other than those conditions that by their
nature are to be satisfied at the Closing, and other than the conditions set forth in Section 7.1(e), Section 7.1(f),
Section 7.2(c), and Section 7.2(e)), and (ii) Sellers are not then in material breach of any obligations
of Sellers under this Agreement (including Section 6.3). In the event this Agreement is terminated (A) at a time when
one or more of the conditions set forth in Section 7.1 and Section 7.2 have not been satisfied or waived (other
than those conditions that by their nature are to be satisfied at the Closing, and other than the conditions set forth in Section 7.1(e),
Section 7.1(f), Section 7.2(c), and Section 7.2(e)), or (B) Sellers are then in material breach
of any obligations of Sellers under this Agreement, then Sellers shall, jointly and severally, repay the Advance Payment to Buyer by
wire transfer of immediately available funds, to an account designated in writing by Buyer, within three (3) Business Days of such
termination.
(b) In
the event the Sellers are entitled to retain the Advance Payment pursuant to Section 8.4(a), the parties agree that, notwithstanding
anything to the contrary in this Agreement, except as provided in Section 8.2(b) with respect to a knowing and intentional
breach of this Agreement by Buyer, such retention shall be the sole and exclusive remedy of the Parent Company, Sellers, the Company
Group and any of their Affiliates against the Buyer and any of its Affiliates for any and all obligations of any kind arising out of
this Agreement and any losses or damages of any kind or nature suffered or incurred by Sellers, the Company Group and any of their Affiliates.
- 92 -
ARTICLE IX
NO SURVIVAL; acknowledgements
Section 9.1 No
Survival(a). The parties hereto, intending to modify any applicable statute of limitations, agree that (a) representations and
warranties in this Agreement (other than the representations and warranties set forth in Sections 3.28, 4.5, 5.6,
5.9 and 5.10) and in any certificate delivered pursuant hereto shall terminate effective as of the Closing and shall not
survive the Closing for any purpose, and thereafter there shall be no liability on the part of, nor shall any claim be made by, any party
or any of their respective Affiliates in respect thereof, and (b) after the Closing, there shall be no liability on the part of,
nor shall any claim be made by, any party or any of their respective Affiliates in respect of any covenant or agreement to be performed
prior to the Closing, other than in each case in the case of Fraud. All covenants and agreements contained in this Agreement that contemplate
performance thereof following the Closing or otherwise expressly by their terms survive the Closing will survive the Closing in accordance
with their terms. For the avoidance of doubt, notwithstanding anything to the contrary, this Section 9.1 is not intended
to limit the survival periods contained in the Buyer Insurance Policy, which shall contain survival periods that shall control for purposes
thereunder. This Article IX shall survive the Closing.
Section 9.2 Indemnification
by the Sellers.
(a) Notwithstanding
anything to the contrary contained in this Agreement (including Section 9.1 (No Survival), Section 9.3 (Buyer
Insurance Policy), and Section 9.4 (Buyer Acknowledgment)), from and after the Closing, Sellers shall, severally and jointly,
indemnify the Buyer Indemnified Parties and hold them harmless from and against any and all Losses incurred or suffered by any of them,
resulting from or arising out of:
(i) any
Indemnified Taxes;
(ii) the
Liquidating Subsidiaries, including any Taxes, debts, or other obligations of any of the Liquidating Subsidiaries, whether arising prior
to, on, or after the Closing Date and including any Taxes related to the dissolution of the Liquidating Subsidiaries;
(iii) the
failure of any Company Group entity to pay any gross receipts tax or use tax or to file any Tax Returns relating to any such taxes; and
(iv) the
matters disclosed in Item 1 and Item 2 of Schedule 3.14(a) of the Company Disclosure Schedule;
provided,
however, that with respect to the indemnification obligations of the Sellers under clauses (iii) and (iv) of
this Section 9.2(a): (A) the Sellers shall not be liable for any Losses unless and until the aggregate amount of all
such Losses under such clauses exceeds $1,000,000, and then only for any Losses in excess of $1,000,000, and (B) the Buyer and its
Affiliates may only make a claim for indemnification pursuant to clauses (iii) or (iv) of this Section 9.2(a) on
or prior to the date that is eighteen (18) months following the Closing Date.
- 93 -
(b) For
the avoidance of doubt, the Buyer Insurance Policy shall not be the sole and exclusive remedy with respect to the matters set forth in
this Section 9.2; provided that, if and to the extent any such Losses could reasonably be expected to be covered by
the Buyer Insurance Policy, the Buyer Indemnified Parties shall first seek recovery under the Buyer Insurance Policy before seeking recovery
directly against the Sellers, jointly and severally; provided, however, that the Buyer Indemnified Parties shall not be required to exhaust
remedies under the Buyer Insurance Policy, or to commence litigation against any insurer, prior to seeking recovery from Sellers if such
recovery is not reasonably available, is subject to dispute, would result in undue delay or expense, the retention under the Buyer Insurance
Policy has not been satisfied or the aggregate limits of the Buyer Insurance Policy have been exhausted, it being understood and agreed
that general delays in the claims process, administrative inconvenience or the preference to seek recovery from Sellers rather than the
Buyer Insurance Policy insurer shall not constitute grounds for bypassing the requirement to first seek recovery from the Buyer Insurance
Policy.
(c) Whenever
any claim shall arise for indemnification under this Section 9.2 (a “Claim”), the Buyer Indemnified Parties
shall promptly provide written notice of the Claim to Sellers. No delay in or failure to give notice of a Claim by the Buyer Indemnified
Parties to Sellers shall adversely affect any of the other rights or remedies that the Buyer Indemnified Parties have under this Agreement
or alter or relieve Sellers of their obligation to indemnify the Buyer Indemnified Parties, except and then only to the extent that the
Sellers are actually and materially prejudiced by reason of such failure.
(d) Subject
to Section 6.8(e), which shall control with respect to Indemnified Taxes, with respect to any other Claim brought by an unaffiliated
third party (any such Claim, a “Third Party Claim”) for which a Buyer Indemnified Party seeks indemnification under
this Section 9.2:
(i) the
written notice of the Claim from the Buyer Indemnified Party to Sellers shall describe the Third-Party Claim in reasonable detail, shall
include copies of the written claims provided by the Person making the Third-Party Claim and shall indicate the estimated amount, if
reasonably practicable, of the Loss that has been or may be sustained by the Buyer Indemnified Party;
(ii) Sellers
shall have the right to participate in, or by giving written notice to the Buyer Indemnified Party (which notice shall include a written
acknowledgement by Sellers of their unconditional obligation to indemnify the Buyer Indemnified Party for all Losses arising from such
Third Party Claim), assume and defend (which, for the avoidance of doubt, but in all cases subject to Section 9.2(e), includes
the settlement of such Third Party Claim) such Third Party Claim at Sellers’ expense and with counsel selected by Sellers and reasonably
acceptable to the Buyer Indemnified Parties; provided that Sellers shall not have the right to defend or direct the defense of
any such Third Party Claim (and only Buyer shall control the defense and settlement of any such Third Party Claim (provided any
such settlement shall require the consent of the Parent Company, such consent not to be unreasonably withheld, conditioned or delayed))
if such Third Party Claim (A) involves an allegation of criminal charges against any Buyer Indemnified Party, (B) seeks restrictions
on the business of any member of Buyer or its Affiliates, (C) involves a customer, supplier or employee of Buyer or its Affiliates,
(D) seeks an injunction or other equitable relief, or (E) is one in which the Buyer Indemnified Party is also a party and joint
representation would be inappropriate or there may be legal defenses available to the Buyer Indemnified Party which are different from
or additional to those available to Sellers; provided, however, that notwithstanding the foregoing, Sellers shall have
the absolute right, subject to compliance with Section 9.2(f)(ii)(A), to assume the defense for any matter for which they
are obligated to indemnify Buyer pursuant to Section 9.2(a); and
- 94 -
(iii) Sellers
and the Buyer Indemnified Parties shall cooperate with each other in all reasonable respects in connection with the defense of any Third-Party
Claim, including making available (subject to the provisions of Section 6.7) records relating to such Third-Party Claim and
furnishing, without expense (other than reimbursement of actual out-of-pocket expenses) to the defending party, management employees
of the non-defending party as may be reasonably necessary for the preparation of the defense of such Third-Party Claim; provided
that furnishing such management employees and records shall be upon reasonable advance notice and during normal business hours, and shall
be done in a manner that does not unreasonably interfere with the normal business operations of Buyer or its Affiliates; provided,
further, that no party shall be required to provide access to, or disclose, any records or information if such access or disclosure
would, in the reasonable judgment of such party (based upon the opinion of such party’s legal counsel), result in the waiver or
loss of any attorney-client, work product, or other recognized legal privilege, or violate any applicable Law or contractual confidentiality
obligation to any third party.
(e) As
to any Third Party Claim for which Sellers have assumed the defense as provided in this Agreement, other than any Claim with respect
to Indemnified Taxes, which shall be governed by Section 6.8(e):
(i) the
Buyer Indemnified Parties will have the right to participate, at their own expense (except that Sellers shall bear the reasonable fees
and expenses of separate counsel for the Buyer Indemnified Party if the Buyer Indemnified Party reasonably concludes that a conflict
of interest exists between Sellers and the Buyer Indemnified Party or that there may be legal defenses available to the Buyer Indemnified
Party which are different from or additional to those available to Sellers), in the defense of such Third Party Claim, which participation
rights shall include, unless prohibited by applicable Law, the right to notice reasonably in advance of any hearings or proceedings in
connection with such Third Party Claim, the right to attend any meetings with a Governmental Authority or hearings or proceedings before
any Governmental Authority and the right to receive copies of all pleadings, notices and communications related to such Third Party Claim;
(ii) the
Buyer Indemnified Party shall fully cooperate as reasonably requested by Sellers in the defense of such Third Party Claim (provided
that Sellers shall promptly reimburse the Buyer Indemnified Party for any reasonable third party out-of-pocket expenses incurred in connection
therewith, and such cooperation shall not unreasonably interfere with the normal business operations of Buyer or its Affiliates);
- 95 -
(iii) Except
as provided in clauses (i) and (ii) above, Sellers shall not be required to pay or otherwise indemnify the Buyer
Indemnified Parties against any attorneys’ fees or other expenses incurred on behalf of the Buyer Indemnified Parties in connection
with such Third Party Claim following Sellers’ election to assume the defense of such Third Party Claim as provided in this Agreement;
and
(iv) Sellers
shall have the exclusive right to negotiate the settlement of such Third Party Claim, provided, however, that Sellers shall
not settle, adjust or compromise such Third Party Claim, consent to the entry of any judgment arising from or admit any liability with
respect to such Third Party Claim without the prior written consent of the Buyer Indemnified Party (which consent shall not be unreasonably
withheld, conditioned or delayed) unless (A) such settlement (1) includes an unconditional and irrevocable release of such
Buyer Indemnified Party in form and substance reasonably satisfactory to such Buyer Indemnified Party from all liability or claims that
are the subject matter of such Third Party Claim and (2) does not include any statement as to or any admission of fault, culpability
or a failure to act by or on behalf of such Buyer Indemnified Party or any injunctive relief or other non-monetary remedy, and (3) does
not impose any ongoing business restrictions, financial obligations, or encumbrances on the assets, properties, or operations of the
Buyer Indemnified Party or its Affiliates and (B) Sellers pay all amounts due in respect of such settlement.
(f) As
to any Third Party Claim for which the Sellers have not assumed the defense as provided in this Agreement (including if the Sellers are
prohibited from assuming the defense pursuant to Section 9.2(d)(ii)):
(i) Sellers
will have the right to participate, at their own expense, in the defense of such Third Party Claim, which participation rights shall
include, unless prohibited by applicable Law, the right to notice reasonably in advance of any hearings or proceedings in connection
with such Third Party Claim, the right to attend any meetings with a Governmental Authority or hearings or proceedings before any Governmental
Authority and the right to receive copies of all material pleadings, notices and communications related to such Third Party Claim; and
(ii) the
Buyer Indemnified Parties shall have the exclusive right to control the defense and negotiate the settlement of such Third Party Claim,
provided, however, the Buyer Indemnified Parties shall not settle, adjust or compromise such Third Party Claim, consent
to the entry of any judgment arising from, or admit any liability with respect to, such Third Party Claim without the prior written consent
of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed); provided, further, that the Buyer
Indemnified Parties shall not be required to obtain such consent from Sellers if (A) Sellers have not unconditionally acknowledged
in writing their obligation to indemnify the Buyer Indemnified Parties for all Losses (in excess of 50% of the RWI retention amount)
arising from such Third Party Claim, or (B) the Buyer Indemnified Parties are not seeking indemnification from Sellers under this
Article IX with respect to such settlement, adjustment, or compromise.
- 96 -
(g) Any
Claim by a Buyer Indemnified Party on account of a Loss which does not result from a Third Party Claim (a “Direct Claim”)
shall be asserted by the Buyer Indemnified Party giving Sellers reasonably prompt written notice thereof, but in any event not later
than forty-five (45) days after the first of the Chief Executive Officer, Chief Financial Officer or the Chief Legal Officer of Buyer
Guarantor becomes aware of such Direct Claim. The failure to give such prompt written notice shall not, however, relieve Sellers
of their indemnification obligations, except, and then only to the extent, that Sellers are actually and materially prejudiced by reason
of such failure. Such notice by the Buyer Indemnified Party shall describe the Direct Claim in reasonable detail and shall indicate
the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by the Buyer Indemnified Party.
Sellers shall have thirty (30) days after their receipt of such notice to respond in writing to such Direct Claim. The Buyer Indemnified
Party shall allow Sellers and their professional advisors to investigate the matter or circumstance alleged to give rise to the Direct
Claim, and whether and to what extent any amount is payable in respect of the Direct Claim and the Buyer Indemnified Party shall assist
Sellers’ investigation by giving such information and assistance (including access to the Buyer Indemnified Party’s premises
and personnel and the right to examine and copy any accounts, documents or records) as Sellers or any of its professional advisors may
reasonably request, provided that such access and assistance shall be upon reasonable advance notice, during normal business hours,
and shall not unreasonably interfere with the normal business operations of Buyer or its Affiliates; provided, further,
that no party shall be required to provide access to, or disclose, any records or information if such access or disclosure would, in
the reasonable judgment of such party (based upon the opinion of such party's legal counsel), result in the waiver or loss of any attorney-client,
work product, or other recognized legal privilege, or violate any applicable Law or contractual confidentiality obligation to any third
party. If Sellers do not so respond within such thirty (30) day period, Sellers shall be deemed to have rejected such claim, in
which case the Buyer Indemnified Party shall be free to pursue such remedies as may be available to the Buyer Indemnified Party on the
terms and subject to the provisions of this Agreement.
(h) Notwithstanding
anything to the contrary in this Section 9.2:
(i) No
Losses may be claimed by any Buyer Indemnified Party to the extent the amount of such Losses was actually included as a liability in
the final determination of the Final Closing Net Working Capital, Final Closing Funded Indebtedness, or Final Closing Transaction Expenses.
(ii) Each
Buyer Indemnified Party shall, and shall cause its Affiliates to, take commercially reasonable steps to mitigate any Losses upon becoming
aware of any event, circumstance, or claim that would reasonably be expected to give rise to an indemnification claim hereunder.
(iii) With
respect to any claim made by any Buyer Indemnified Party under the Buyer Insurance Policy in respect of a breach of a representation
set forth in Articles III or IV, to the extent that the deductible under the Buyer Insurance Policy has not been met, a
Buyer Indemnified Party may seek indemnification from Sellers pursuant to this Section 9.2(i) for fifty percent (50%)
of any Losses resulting from any inaccuracy in or breach of such representation that are borne by the Buyer Indemnified Parties, up to
an amount equal to the deductible under the Buyer Insurance Policy.
- 97 -
Section 9.3 Buyer
Insurance Policy.
(a) Buyer
acknowledges and agrees that, notwithstanding anything to the contrary contained herein, except in the case of Fraud and any of the matters
set forth in Section 9.2, the Buyer Insurance Policy (whether or not it is ultimately bound, and whether or not the Buyer
Insurance Policy is sufficient to cover the applicable losses) shall be the sole and exclusive remedy of Buyer and its Affiliates (including,
after the Closing, the Company Group) and their respective officers, directors, shareholders, members, employees, successors and permitted
assigns (collectively, the “Buyer Indemnified Parties”) of whatever kind and nature, in Law, equity or otherwise,
known or unknown, which such Persons have now or may have in the future, resulting from, arising out of, or related to any inaccuracy
or breach of any representation or warranty of the Company Group or Sellers contained in this Agreement or any Ancillary Agreement, and
neither any Buyer Indemnified Party nor any other party (including, without limitation, the insurers under the Buyer Insurance Policy),
shall have any recourse against Sellers or any of their respective Non-Recourse Parties with respect thereto. In the event that the amounts
available under the Buyer Insurance Policy are insufficient to pay any Buyer Indemnified Party any amounts owed to such Buyer Indemnified
Party in respect of any breach of any representation or warranty, the Buyer Indemnified Parties shall not be entitled to collect any
remaining amounts not satisfied from the Buyer Insurance Policy from Sellers, or any of their respective Non-Recourse Parties, and no
such Person shall have any liability for such deficiency. Buyer agrees that it shall cause the Buyer Insurance Policy to expressly (i) exclude
rights of subrogation against Sellers (other than solely with respect to a Fraud claim against Sellers in connection with this Agreement
and the Contemplated Transactions) and their respective Non-Recourse Parties and (ii) provide that Sellers and their Non-Recourse
Parties are third party beneficiaries of such waiver. Buyer covenants and agrees not to amend, modify, terminate or waive any term or
condition set forth in the Buyer Insurance Policy (a) related to subrogation in a manner inconsistent with the immediately preceding
sentence and/or (b) otherwise in a manner which is adverse to any Seller and/or any of its Non-Recourse Parties. Notwithstanding
any provision contained herein to the contrary, Buyer’s obligation to obtain and bind the Buyer Insurance Policy pursuant to the
terms and conditions hereof shall not be, and shall not be deemed to be, a condition to the Closing.
(b) The
limits imposed on the Buyer Indemnified Parties’ and their Non-Recourse Parties’ remedies with respect to this Agreement
and the Contemplated Transactions (including this Article IX) were specifically bargained for between sophisticated parties
and were specifically taken into account in the determination of the amount to be paid to Sellers hereunder. None of the Buyer Indemnified
Parties or any of their Non-Recourse Parties may avoid the limitations on liability set forth in this Agreement by seeking damages for
breach of contract, tort or pursuant to any other theory of liability.
- 98 -
(c) If
and to the extent that Buyer, the Company Group, any of their respective Affiliates, and/or any of their respective equityholders, including
any subrogee(s) thereof, brings a claim for Fraud (or any other claim which does not survive Closing due to Section 9.1)
against any Seller and/or any of their respective Non-Recourse Parties and such claim is not successful (as determined by a court of
competent jurisdiction in a final, non-appealable order), then Buyer shall be, and shall cause the Company Group to be, responsible for,
and shall immediately pay, and shall cause the Company Group to pay, upon demand, all reasonable costs and expenses (including reasonable
attorneys’ fees) of all such Seller and/or any of their respective Non-Recourse Parties in connection therewith in defending such
Fraud or other claims). The provisions of this Section 9.3 are intended to be for the benefit of, and enforceable by, each
Seller and/or any of their respective Non-Recourse Parties, and each such person shall be a third party beneficiary of this Section 9.3.
For the avoidance of doubt, the foregoing rights accorded to the Non-Recourse Parties to recover the reasonable costs and expenses incurred
by them, including reasonable attorneys’ fees, in defense of any such claim is not intended to either authorize or permit the filing
or initiation of any such claim against such Non-Recourse Party or waive, limit or otherwise affect the scope or enforceability of the
benefit and protections accorded to each of such Non-Recourse Parties under this Article IX and Section 10.21.
Section 9.4 Buyer
Acknowledgment.
(a) Buyer
acknowledges and agrees, on behalf of itself and each of its Affiliates, that it has conducted to its satisfaction an independent investigation
and verification of the financial condition, results of operations, assets, liabilities, properties and projected operations of the Company
Group, and, in making its determination to proceed with the Contemplated Transactions, Buyer and its Non-Recourse Parties (i) have
relied solely on the results of their own independent investigation and verification and the representations and warranties regarding
the Company Group expressly and specifically set forth in Article III and the representations and warranties of Sellers expressly
and specifically set forth in Article IV, in each case as qualified by the Company Disclosure Schedule, and the representations
and warranties expressly and specifically set forth in any Ancillary Agreement and in any certificate delivered pursuant to this Agreement,
and (ii) have not relied on the accuracy or completeness of any other information provided or made available to (or otherwise acquired
by) Buyer or any of its Non-Recourse Parties. The representations and warranties regarding the Company Group expressly and specifically
set forth in Article III and representations and warranties of Sellers expressly and specifically set forth in Article IV,
in each case as qualified by the Company Disclosure Schedule, and the representations and warranties expressly and specifically set forth
in any Ancillary Agreement and in any certificate delivered pursuant to this Agreement, constitute the sole and exclusive representations,
warranties and statements (including by omission) of any kind of the Company Group, Sellers or any of their respective Non-Recourse Parties
in connection with the Contemplated Transactions, and all other representations, warranties and statements (including by omission) of
any kind or nature expressed or implied in connection with the Contemplated Transactions are specifically disclaimed by the Company Group,
Sellers and each of their respective Non-Recourse Parties including, for the avoidance of doubt, with respect to the accuracy or completeness
of any other information provided to (or otherwise acquired by) Buyer or any of its Affiliates or Non-Recourse Parties. NONE OF THE COMPANY
GROUP, SELLERS NOR ANY OF THEIR RESPECTIVE NON-RECOURSE PARTIES HAVE MADE ANY REPRESENTATIONS, WARRANTIES OR STATEMENTS (INCLUDING BY
OMISSION) OF ANY KIND OR NATURE EXPRESS OR IMPLIED (INCLUDING ANY RELATING TO THE FUTURE OR HISTORICAL FINANCIAL CONDITION, RESULTS OF
OPERATIONS, PROSPECTS, ASSETS OR LIABILITIES OF THE COMPANY GROUP OR THE QUALITY, QUANTITY OR CONDITION OF THE COMPANY GROUP’S
ASSETS) TO BUYER OR ANY OF ITS NON-RECOURSE PARTIES IN CONNECTION WITH THE CONTEMPLATED TRANSACTIONS, EXCEPT FOR ANY REPRESENTATIONS
AND WARRANTIES REGARDING THE COMPANY GROUP EXPRESSLY AND SPECIFICALLY SET FORTH IN ARTICLE III AND REPRESENTATIONS AND WARRANTIES
OF SELLERS EXPRESSLY AND SPECIFICALLY SET FORTH IN ARTICLE IV, IN EACH CASE AS QUALIFIED BY THE COMPANY DISCLOSURE SCHEDULE,
AND THE REPRESENTATIONS AND WARRANTIES EXPRESSLY AND SPECIFICALLY SET FORTH IN ANY ANCILLARY AGREEMENT AND IN ANY CERTIFICATE DELIVERED
PURSUANT TO THIS AGREEMENT. EXCEPT: FOR THE REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY GROUP EXPRESSLY AND SPECIFICALLY SET
FORTH IN ARTICLE III AND REPRESENTATIONS AND WARRANTIES OF SELLERS EXPRESSLY AND SPECIFICALLY SET FORTH IN ARTICLE IV, IN
EACH CASE AS QUALIFIED BY THE COMPANY DISCLOSURE SCHEDULE, AND THE REPRESENTATIONS AND WARRANTIES EXPRESSLY AND SPECIFICALLY SET FORTH
IN ANY ANCILLARY AGREEMENT AND IN ANY CERTIFICATE DELIVERED PURSUANT TO THIS AGREEMENT, OR (X) NONE OF THE COMPANY GROUP NOR ANY
SELLER MAKES OR PROVIDES, AND BUYER AND ITS AFFILIATES HEREBY WAIVE, ANY WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, AS TO THE QUALITY,
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, CONFORMITY TO SAMPLES, OR CONDITION OF ANY COMPANY GROUP’S ASSETS OR ANY PART THEREOF,
(Y) BUYER IS ACQUIRING THE COMPANY GROUP ON AN “AS IS, WHERE IS” BASIS AND (Z) NONE OF THE COMPANY GROUP, THE SELLERS
NOR ANY OTHER PERSON (INCLUDING, FOR THE AVOIDANCE OF DOUBT, EACH OF THEIR RESPECTIVE NON-RECOURSE PARTIES), WHETHER IN ANY INDIVIDUAL,
CORPORATE OR ANY OTHER CAPACITY, IS MAKING, AND NEITHER BUYER, NOR ANY OF ITS NON-RECOURSE PARTIES IS RELYING ON, ANY REPRESENTATIONS,
WARRANTIES, OR OTHER STATEMENTS (INCLUDING BY OMISSION) OF ANY KIND WHATSOEVER, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, STATUTORY
OR OTHERWISE, AS TO ANY MATTER CONCERNING THE COMPANY GROUP OR IN CONNECTION WITH THIS AGREEMENT OR THE CONTEMPLATED TRANSACTIONS, OR
THE ACCURACY OR COMPLETENESS OF ANY INFORMATION PROVIDED TO (OR OTHERWISE ACQUIRED BY) BUYER OR ANY OF ITS NON-RECOURSE PARTIES.
- 99 -
(b) None
of the Company Group nor Sellers, nor any Non-Recourse Party of any of the foregoing, whether in an individual, corporate or any other
capacity, will have or be subject to any liability or obligation (indemnification or otherwise) to Buyer or any of its Non-Recourse Parties
resulting from (nor shall Buyer or any of its Non-Recourse Parties have any claim with respect to) the distribution to Buyer or any of
its Non-Recourse Parties, or Buyer’s or any of its Non-Recourse Parties’ use of, or reliance on, any information, documents,
projections, forecasts or other material made available to Buyer or any of its Non-Recourse Parties or Representatives in the Data Room
or presentations (including, for the avoidance of doubt, the confidential information presentation, interim financial and business updates,
or other “management presentations”) in expectation of, or in connection with, the Contemplated Transactions, or otherwise,
regardless of the legal theory under which such liability or obligation may be sought to be imposed, whether sounding in contract or
tort, or whether at law or in equity, or otherwise.
- 100 -
(c) Without
in any way limiting the generality of the foregoing, Buyer acknowledges that there are uncertainties inherent in attempting to make projections,
forward looking statements and other forecasts and estimates, and certain business plan information, that Buyer and its Non-Recourse
Parties are familiar with such uncertainties, that Buyer and its Non-Recourse Parties are taking full responsibility for making their
own evaluation of the adequacy and accuracy of any such projections, forward looking statements, forecasts, estimates and business plan
information provided to it in connection with the Contemplated Transactions (including the reasonableness of the assumptions underlying
such projections, forward looking statements, forecasts, estimates and business plan information), that no representations, warranties
or statements (including by omission) of any kind are being made with respect thereto, that neither Buyer nor any of its Non-Recourse
Parties is relying thereon, and that Buyer and its Non-Recourse Parties shall have no claim against anyone with respect thereto.
(d) Buyer
knowingly, willingly, irrevocably and expressly acknowledges and agrees, that, from and after the Closing, to the fullest extent permitted
under applicable Law, any and all rights, claims and causes of action it may have against Sellers and their respective Non-Recourse Parties
relating to the operation of the Company Group or their respective businesses or relating to the subject matter of this Agreement or
any other document contemplated hereby, and the Contemplated Transactions (other than, and solely with respect to, any of the covenants
in this Agreement that survive the Closing), whether or not arising under, or based upon, any Law (including any right, whether arising
at law or in equity, to seek indemnification, contribution, cost recovery, damages, or any other recourse or remedy) are hereby irrevocably
waived. Furthermore, without limiting the generality of this Section 9.4, from and after the Closing, no Proceeding will
be brought, encouraged, supported or maintained by, or on behalf of, Buyer or its Affiliates (including, after the Closing, the Company
Group) against Sellers and their respective Non-Recourse Parties, and no recourse will be sought or granted against Sellers and their
respective Non-Recourse Parties, by virtue of, or based upon, any alleged misrepresentation or inaccuracy in, or breach of, any of the
representations, warranties, covenants or agreements of the Company Group or Sellers set forth or contained in this Agreement or any
other document contemplated hereby or any certificate, instrument, agreement or other document delivered hereunder (other than, and solely
with respect to, any of the covenants in this Agreement that survive the Closing), the subject matter of this Agreement or any other
document contemplated hereby, the Contemplated Transactions, the ownership, operation, management, use or control of the business or
assets of the Company Group, or any actions or omissions at, or prior to, the Closing. Furthermore, without limiting the generality of
this Section 9.4, from and after the Closing, Buyer will not be entitled to rescind this Agreement, and Buyer knowingly,
willingly, irrevocably and expressly waive any and all rights of rescission it may have in respect of any such matter. Buyer knowingly,
willingly, irrevocably and expressly agrees (on its own behalf and, from and after the Closing, on behalf of the Company Group), to indemnify
and hold harmless Sellers and their respective Non-Recourse Parties from and against, and in respect of, any and all liabilities, losses,
damages, obligations, costs or expenses incurred by or on behalf of Sellers and their respective Non-Recourse Parties as a result of
any such Proceeding brought or maintained by Buyer and its respective Affiliates (including, after the Closing, the Company Group) against
Sellers and their respective Non-Recourse Parties in contravention of this Section 9.4.
- 101 -
(e) Notwithstanding
anything in this Section 9.4 to the contrary, nothing shall limit, modify, waive, or otherwise impair in any way Buyer's
right to rely upon (and Buyer hereby expressly relies upon) the representations and warranties expressly and specifically set forth in
Article III, Article IV (in each case, as qualified by the Company Disclosure Schedule), and in any Ancillary
Agreement and any certificate delivered pursuant to this Agreement, or limit or impair any of Buyer's rights or remedies with respect
to Fraud.
ARTICLE X
miscellaneous
Section 10.1 Expenses.
All fees and expenses incurred in connection with the Contemplated Transactions shall be paid by the party incurring such expenses, whether
or not the Contemplated Transactions are consummated. Notwithstanding the foregoing or anything to the contrary herein (a) each
of Buyer and the Parent Company shall be responsible for (i) 50% of the fees and expenses incurred in connection with the obligations
to obtain the D&O Tail Insurance set forth in Section 6.6, (ii) 50% of any retention amount or deductible actually
borne by Buyer under the Buyer Insurance Policy in connection with any claim made thereunder, (iii) 50% of all fees and expenses
relating to the Escrow Agent, (iv) 50% of all premium, underwriting costs, brokerage commission for Buyer’s broker, Taxes
and other fees and expenses relating to the Buyer Insurance Policy, (v) 50% of all statutory filing fees payable to any Governmental
Authority in connection with: (A) any filing made under any Antitrust Law (including under the HSR Act) and in connection with obtaining
CFIUS Approval or DCSA Approval, (B) complying with any formal request for additional information that may be issued under the HSR
Act by the Antitrust Division or the FTC, or any similar request for additional information that may be issued by any Governmental Authority
pursuant to any Antitrust Law or obtaining CFIUS Approval or DCSA Approval, in each case in connection with the Contemplated Transactions,
and (C) litigating any challenge to the Contemplated Transactions under the HSR Act or any Antitrust Law or in connection with obtaining
CFIUS Approval or DCSA Approval, and (b) Buyer shall be responsible for 100% of the fees and expenses incurred in connection with
the preparation of the financial statements contemplated by Sections 6.15(b) and 7.1(g).
Section 10.2 Notices.
All notices and other communications given or made pursuant hereto shall be in writing and shall be deemed to have been duly given or
made (a) as of the date delivered, if delivered personally, (b) on the date sent by email, with confirmation of transmission,
if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient,
(c) three (3) Business Days after being mailed by registered or certified mail (postage prepaid, return receipt requested)
or (d) one (1) Business Day after being sent by overnight courier (providing proof of delivery), to the parties at the following
addresses (or at such other address for a party as shall be specified in a notice given in accordance with this Section 10.2):
If to Sellers, to the Parent Company:
Comtech
Telecommunications Corp.
305 N. 54th Street
Chandler, Arizona 85226
Attention: Donald E. Walther
Email: don.walther@comtech.com
- 102 -
With a copy (which shall not constitute
notice or service of process) to:
Norton
Rose Fulbright US LLP
1301 Avenue of the Americas
New York, New York 10019
Attention: Steven I. Suzzan
Email: steven.suzzan@nortonrosefulbright.com
If to Buyer:
Wavestream Corporation
545 W. Terrace Drive
San Dimas, CA 91773
Attention: Chief Legal Officer
Email: doronke@gilat.com
With a copy (which shall not constitute notice or service
of process) to:
Naschitz, Brandes, Amir & Co.
5 Tuval Street
Tel Aviv, Israel 6789717
Attention: Sharon Amir;
Tuvia Geffen; Idan Lidor
Email: samir@nblaw.com;
tgeffen@nblaw.com; ilidor@nblaw.com
Section 10.3 Governing
Law. All matters relating to the interpretation, construction, validity and enforcement of this Agreement, including all claims arising
out of or relating to this Agreement or the negotiation, execution or performance of this Agreement or the Contemplated Transactions
(including any claim or cause of action based upon, arising out of, or related to any representation or warranty made in or in connection
with this Agreement or as an inducement to enter into this Agreement), shall be governed by and construed in accordance with the domestic
Laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule that would cause the application
of Laws of any jurisdiction other than the State of Delaware.
Section 10.4 Entire
Agreement. This Agreement, together with the exhibits hereto, the Company Disclosure Schedule, the Ancillary Agreements, the Guarantee
and the Confidentiality Agreement, constitute the entire agreement of the parties relating to the subject matter hereof and supersede
all prior contracts or agreements, whether oral or written. In the event and to the extent that there shall be an inconsistency or conflict
between the provisions of this Agreement and the provisions of any Ancillary Agreement, this Agreement shall prevail. The provisions
of this Agreement shall be construed according to their fair meaning and neither for nor against any party irrespective of which party
caused such provisions to be drafted, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of
the authorship of any of the provisions of this Agreement and the Ancillary Agreements. Each party hereby acknowledges that it has been
represented by an attorney in connection with the preparation and execution of this Agreement, the Confidentiality Agreement and the
Ancillary Agreements. This Section 10.4 shall not be deemed to be an admission or acknowledgement by any of the parties that
any prior agreements or understandings, oral or written, with respect to the subject matter hereof exist, other than the Confidentiality
Agreement.
- 103 -
Section 10.5 Severability.
Should any provision of this Agreement or the application thereof to any Person or circumstance be held invalid or unenforceable to any
extent: (a) such provision shall be ineffective to the extent, and only to the extent, of such unenforceability or prohibition and
shall be enforced to the greatest extent permitted by Law; (b) such unenforceability or prohibition in any jurisdiction shall not
invalidate or render unenforceable such provision as applied (i) to other Persons or circumstances or (ii) in any other jurisdiction;
(c) such unenforceability or prohibition shall not affect or invalidate any other provision of this Agreement; and (d) the
parties will amend or otherwise modify this Agreement to replace any prohibited or invalid provision with an effective and valid provision
that gives effect to the intent of the parties to the maximum extent permitted by applicable Law.
Section 10.6 Amendment.
Neither this Agreement nor any of the terms hereof may be amended, supplemented or modified orally, but only by an instrument in writing
signed by the parties hereto; provided that the observance of any provision of this Agreement may be waived in writing by the
party that will lose the benefit of such provision as a result of such waiver.
Section 10.7 Effect
of Waiver or Consent. No waiver or consent, express or implied, by any party to or of any breach or default by any party in the performance
by such party of its obligations hereunder shall be deemed or construed to be a consent or waiver to or of any other breach or default
in the performance by such party of the same or any other obligations of such party hereunder. No single or partial exercise of any right
or power, or any abandonment or discontinuance of steps to enforce any right or power, shall preclude any other or further exercise thereof
or the exercise of any other right or power. Failure on the part of a party to complain of any act of any party or to declare any party
in default, irrespective of how long such failure continues, shall not constitute a waiver by such party of its rights hereunder until
the applicable statute of limitation period has run.
Section 10.8 Parties
in Interest; Limitation on Rights of Others. Certain provisions of this Agreement are intended for the benefit of Sellers and shall
be enforceable by the Parent Company on behalf of the other Sellers; provided that no Seller other than the Parent Company shall
have the right to directly take any action or enforce any provision of this Agreement, it being understood and agreed that all such actions
shall be taken solely by the Parent Company on behalf of the other Sellers. The terms of this Agreement shall be binding upon, and inure
to the benefit of, the parties hereto and their respective legal representatives, successors and permitted assigns. Nothing in this Agreement,
whether express or implied, shall be construed to give any Person (other than the parties hereto and their respective legal representatives,
successors and permitted assigns and as expressly provided herein) any legal or equitable right, remedy or claim under or in respect
of this Agreement or any covenants, conditions or provisions contained herein, as a third party beneficiary or otherwise; provided
that (a) the Parent Company shall have the right, but not the obligation, to enforce any rights of Sellers under this Agreement,
(b) the Persons released pursuant to Section 10.16 shall have the right to enforce their respective rights under Section 10.16,
(c) the Non-Recourse Parties shall be third party beneficiaries of the provisions of Sections 9.3, 9.4 and 10.20,
(d) from and after the Closing, the D&O Indemnified Parties shall be third party beneficiaries of the provisions of Section 6.6,
with the right to pursue claims for damages and other relief (including specific performance or other equitable relief) in the event
of any breach thereof, and (e) Norton Rose Fulbright shall be a third party beneficiary of Section 10.19.
- 104 -
Section 10.9 Assignability.
No assignment of this Agreement or of any rights or obligations hereunder may be made by any party, directly or indirectly (by operation
of Law or otherwise), without the prior written consent of the other parties hereto and any attempted assignment without the required
consents shall be void; provided that Buyer may assign its rights (but not its obligations) hereunder without the prior written
consent of the Parent Company to any of Buyer’s Affiliates.
Section 10.10 Disclosure
Schedules. For the purposes of this Agreement, any information and/or matter disclosed in the Company Disclosure Schedule with respect
to any section of this Agreement shall be deemed to have been disclosed with respect to any other section to the extent the applicability
thereto is reasonably apparent. No reference to or disclosure of any item or other matter in the Company Disclosure Schedule shall be
construed as an admission or indication that such item or other matter is material (nor shall it establish a standard of materiality
for any purpose whatsoever) or that such item or other matter is required to be referred to or disclosed in the Company Disclosure Schedule.
The information set forth in the Company Disclosure Schedule is disclosed solely for the purposes of this Agreement, and no information
set forth therein shall be deemed to be an admission by any party hereto to any third party of any matter whatsoever, including any violation
of Law or breach of any Contract. Where the terms of a Contract or other item have been summarized, referenced or described in the Company
Disclosure Schedule, such summary, reference or description does not purport to be a complete statement of the material terms of such
Contract or other item, and all such summaries and descriptions are qualified in their entirety by reference to the Contract or item
being summarized and/or described. The Company Disclosure Schedule, and the information and disclosures contained therein are intended
only to qualify and limit the representations, warranties and covenants of the Company and Sellers contained in this Agreement. In particular,
(i) certain matters may be disclosed on the Company Group Disclosure Schedule that may not be required to be disclosed because of
certain minimum thresholds or materiality standards set forth in this Agreement, (ii) the disclosure of any such matter does not
mean that it meets or surpasses any such minimum thresholds or materiality standards and (iii) no disclosure in the Company Group
Disclosure Schedule relating to any possible breach or violation of any Contract or Law shall be construed as an admission or indication
that any such breach or violation exists or has actually occurred. Nothing in the Company Disclosure Schedule shall be deemed to broaden
the scope of any representation or warranty contained in this Agreement or create any covenant. Matters reflected in the Company Disclosure
Schedule are not necessarily limited to matters required by this Agreement to be reflected in the Company Disclosure Schedule. Such additional
matters are set forth for informational purposes and do not necessarily include other matters of a similar nature. Regardless of the
existence or absence of cross-references, the disclosure of any information and/or matter disclosed in the Company Group Disclosure Schedule
with respect to any section of this Agreement shall be deemed to have been disclosed with respect to any other section to the extent
the applicability thereto is reasonably apparent. The section headings in the Company Group Disclosure Schedule are for convenience of
reference only and shall not be deemed to alter or affect the meaning or interpretation of any information disclosed herein or any provision
of this Agreement. All attachments to the Company Group Disclosure Schedule are incorporated by reference into the portion of the Company
Group Disclosure Schedule in which they are directly or indirectly referenced.
- 105 -
Section 10.11 Jurisdiction;
Court Proceedings; Waiver of Jury Trial. Any Proceeding arising out of or relating to this Agreement shall be brought exclusively
in the Court of Chancery of the State of Delaware (unless the Court of Chancery of the State of Delaware declines to accept jurisdiction
over a particular matter, in which case, in any state or federal court within the State of Delaware) (together with the appellate courts
thereof, the “Chosen Courts”) and each of the parties hereby submits to the exclusive jurisdiction of the Chosen Courts
for the purpose of any such Proceeding. Each party irrevocably and unconditionally agrees not to assert (a) any objection which
it may ever have to the laying of venue of any such Proceeding in any Chosen Court, (b) any claim that any such Proceeding brought
in any Chosen Court has been brought in an inconvenient forum, and (c) any claim that any Chosen Court does not have jurisdiction
with respect to such Proceeding. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT TO A TRIAL BY JURY AND AGREES THAT ANY OF
THEM MAY FILE A COPY OF THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED-FOR AGREEMENT
AMONG THE PARTIES IRREVOCABLY TO WAIVE ITS RIGHT TO TRIAL BY JURY IN ANY PROCEEDING.
Section 10.12 No
Other Duties. The only duties and obligations of the parties under this Agreement are as specifically set forth in this Agreement,
and no other duties or obligations shall be implied in fact, law or equity, or under any principle of fiduciary obligation.
Section 10.13 Reliance
on Counsel and Other Advisors. Each party has consulted such legal, financial, technical or other experts as it deems necessary or
desirable before entering into this Agreement. Each party represents and warrants that it has read, knows, understands and agrees with
the terms and conditions of this Agreement.
Section 10.14 Remedies.
All remedies, either under this Agreement or by Law or otherwise afforded to the parties hereunder, shall be cumulative and not alternative,
and any Person having any rights under any provision of this Agreement will be entitled to enforce such rights specifically, to recover
damages by reason of any breach of this Agreement and to exercise all other rights granted by Law, equity or otherwise.
Section 10.15 Specific
Performance. The parties agree that irreparable damage, for which monetary damages would not be an adequate remedy, would occur in
the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached.
Accordingly, the parties agree that, subject to Section 8.2, in addition to any other remedies, each party shall be entitled
to enforce the terms of this Agreement (including each party’s obligation to consummate the Contemplated Transactions) by a decree
of specific performance without the necessity of proving the inadequacy of money damages as a remedy. Each party hereby waives any requirement
for the securing or posting of any bond or other security in connection with such remedy. Each party further agrees that the only permitted
objection that it may raise in response to any action for equitable relief is that it contests the existence of a breach or threatened
breach of this Agreement. Each party agrees that it will use its reasonable best efforts to cooperate with the other in seeking and agreeing
to an expedited schedule in any litigation seeking an injunction or order of specific performance. The parties further agree that nothing
in this Section 10.15 shall require any party to commence a Proceeding for (or limit any party’s right to commence
a Proceeding for) specific performance under this Section 10.15 prior or as a condition to exercising any termination right
under Article VIII.
- 106 -
Section 10.16 Release.
(a) Each
Seller hereby agrees that, effective as of the Closing Date, such Seller shall be deemed to have released and discharged Buyer, the Company
Group and their respective Affiliates and each of their respective directors, officers, employees, members, managers, equityholders,
Affiliates, agents, assigns and successors, past and present, from any and all claims, demands and causes of action, whether known or
unknown, liquidated or contingent, relating to, arising out of or in any way connected with the dealings of the Company Group and such
Seller from the beginning of time through the Closing Date, it being understood, however, that such release shall not operate to release:
(i) any claims arising under this Agreement or the other Ancillary Agreements, (ii) rights to seek indemnification pursuant
to the Company Group’s Organizational Documents, subject to the terms and conditions of Section 6.6, and (iii) rights
to seek coverage under the D&O Tail Insurance.
(b) Buyer
agrees that, effective as of the Closing Date, each Company Group entity shall be deemed to have released and discharged the Sellers
and any Affiliate thereof and their respective Representatives (whether in such Person’s capacity as a equityholder, manager,
director, officer, employee or otherwise) from any and all claims, demands and causes of action, whether known or unknown,
liquidated or contingent, relating to, arising out of or in any way connected with the dealings of such Company Group entity and
such Person from the beginning of time through the Closing Date; provided, that such release shall not operate to release any
claims arising under this Agreement or the other Ancillary Agreements.
(c) Each
party further agrees that such party shall not and shall not permit any of its Affiliates to: (i) institute a lawsuit or other Proceeding
based upon, arising out of, or relating to any of the released claims, (ii) participate, assist, or cooperate in any such Proceeding
or (iii) encourage, assist and/or solicit any third party to institute any such Proceeding.
Section 10.17 Counterparts.
This Agreement may be executed in any number of counterparts with the same effect as if all signatory parties had signed the same document.
All counterparts shall be construed together and shall constitute one and the same instrument. Copies of executed counterparts of signature
pages to this Agreement may be transmitted by PDF (portable document format) or facsimile and such PDFs or facsimiles will be deemed
as sufficient as if actual signature pages had been delivered.
Section 10.18 Further
Assurance. If at any time after the Closing any further action is necessary or desirable to fully effect the Contemplated Transactions,
each of Buyer and Sellers shall take such further action (including the execution and delivery of such further instruments and documents)
as any other party reasonably may request.
- 107 -
Section 10.19 Legal
Representation. Each of the parties to this Agreement acknowledges that Norton Rose Fulbright US LLP (“Norton Rose Fulbright”)
currently serves as counsel to both (a) the Company Group and (b) Sellers, including in connection with the negotiation, preparation,
execution and delivery of this Agreement, the Ancillary Agreements and the consummation of the Contemplated Transactions. There may come
a time, including after consummation of the Contemplated Transactions, when the interests of Sellers and the Company Group may no longer
be aligned or when, for any reason, Sellers, Norton Rose Fulbright or the Company Group believes that Norton Rose Fulbright cannot or
should no longer represent both Sellers and the Company Group. The parties understand and specifically agree that Norton Rose Fulbright
may withdraw from representing the Company Group and continue to represent Sellers, even if the interests of Sellers and the interests
of the Company Group are or may be adverse, including in connection with any dispute arising out of or relating to this Agreement, any
of the Ancillary Agreements or the Contemplated Transactions, and even though Norton Rose Fulbright may have represented the Company
Group in a matter substantially related to such dispute or may be handling ongoing matters for the Company Group or any of its Affiliates,
and Buyer and the Company Group hereby consent thereto and waive any conflict of interest arising therefrom. Each of the parties further
agrees that, as to all communications among Norton Rose Fulbright, the Company Group and Sellers, the attorney-client privilege, the
expectation of client confidence and all other rights to any evidentiary privilege belong to Sellers and shall not pass to or be claimed
by the Company Group. As to any privileged attorney client communications between Norton Rose Fulbright and the Company Group prior to
the Closing (collectively, the “Privileged Communications”), Buyer and the Company Group, together with any of their
respective Affiliates, successors or assigns, agree that no such Person may use or rely on any of the Privileged Communications in any
action or claim against or involving any of the parties hereto after the Closing. In addition, if the Contemplated Transactions are consummated,
the Company Group shall have no right of access to or control over any of Norton Rose Fulbright’s records related to the Contemplated
Transactions, which shall become the property of (and be controlled by) Sellers. Furthermore, in the event of a dispute between Sellers
and the Company Group arising out of or relating to any matter in which Norton Rose Fulbright acted for them both, none of the attorney-client
privilege, the expectation of client confidence or any other rights to any evidentiary privilege will protect from disclosure to Sellers
any information or documents developed or shared during the course of Norton Rose Fulbright’s joint representation of Sellers and
the Company Group.
Section 10.20 No
Recourse Against Non-Recourse Parties. Except as provided under the Confidentiality Agreement, the Guarantee, or any Ancillary Agreement
(but only with respect to the parties to such Ancillary Agreement), claims, obligations, liabilities or causes of action (whether in
contract or in tort, in law or in equity, or granted by statute) that may be based upon, in respect of, arise under, out or by reason
of, be connected with, or relate in any manner to this Agreement, or the negotiation, execution, or performance of this Agreement (including
any representation or warranty made in, in connection with, or as an inducement to, this Agreement), may be made only against (and are
those solely of) the entities that are expressly identified as parties in the preamble to this Agreement (“Contracting Parties”)
and their respective successors and permitted assigns. No Person who is not a Contracting Party, including without limitation any Non-Recourse
Party, shall have any liability (whether in contract or in tort, in law or in equity, or granted by statute) for any claims, causes of
action, obligations or liabilities arising under, out of, in connection with, or related in any manner to this Agreement or based on,
in respect of, or by reason of this Agreement or its negotiation, execution, performance or breach; and, to the maximum extent permitted
by Law, each Contracting Party hereby waives and releases all such liabilities, claims, causes of action and obligations against any
such Non-Recourse Party. Without limiting the foregoing, to the maximum extent permitted by Law, (a) each Contracting Party hereby
waives and releases any and all rights, claims, demands or causes of action that may otherwise be available at law or in equity, or granted
by statute, to avoid or disregard the entity form of a Contracting Party or otherwise impose liability of a Contracting Party on any
Non-Recourse Party, whether granted by statute or based on theories of equity, agency, control, instrumentality, alter ego, domination,
sham, single business enterprise, piercing the veil, unfairness, undercapitalization or otherwise, and (b) each Contracting Party
disclaims any reliance upon any Non-Recourse Party with respect to the performance of this Agreement or any representation or warranty
made in, in connection with, or as an inducement to this Agreement. Buyer’s, Sellers’ and the Company Group’s Non-Recourse
Parties shall be third party beneficiaries of this Section 10.20, each of whom may enforce the provisions of this Section 10.20.
[Signature Pages Follow]
- 108 -
IN WITNESS WHEREOF, each
of the parties hereto has caused this Agreement to be duly executed and delivered in its name and on its behalf, all as of the day and
year first above written.
BUYER:
Wavestream
Corporation
By:
/s/ Adi Sfadia
Name: Adi Sfadia
Title: Director
By:
/s/ Gil Binyamini
Name: Gil Binyamini
Title: Director
[SECURITIES PURCHASE AGREEMENT
SIGNATURE PAGE]
S-1
PARENT COMPANY:
COMTECH TELECOMMUNICATIONS
CORP.
By:
/s/ Kenneth Traub
Name: Kenneth Traub
Title:
Chairman, President and Chief Executive Officer
SELLERS:
COMTECH TELECOMMUNICATIONS
CORP.
By:
/s/ Kenneth Traub
Name: Kenneth Traub
Title: Chairman, President and Chief Executive Officer
TELECOMMUNICATION SYSTEMS, INC.
By:
/s/ Kenneth Traub
Name: Kenneth Traub
Title: Vice President
[SECURITIES PURCHASE AGREEMENT SIGNATURE PAGE]
S-2
THE COMPANIES:
COMTECH SATELLITE NETWORK
TECHNOLOGIES, INC.
By:
/s/ Kenneth Traub
Name: Kenneth Traub
Title: Vice President
COMTECH SATELLITE NETWORK
TECHNOLOGIES, CORP.
By:
/s/ Kenneth Traub
Name: Kenneth Traub
Title:
Executive Chairman and Chief Executive Officer
COMTECH UK HOLDINGS
LIMITED
By:
/s/ Michael A. Bondi
Name: Michael A. Bondi
Title: Director
COMTECH SYSTEMS, INC.
By:
/s/ Kenneth Traub
Name: Kenneth Traub
Title: Vice President
[SECURITIES PURCHASE AGREEMENT SIGNATURE PAGE]
S-3
EXHIBIT A
Companies
Comtech Satellite Network Technologies, Inc.
Comtech Satellite Network Technologies, Corp.
Comtech UK Holdings Limited
Comtech Systems, Inc.
EXHIBIT B
Sellers
Comtech Telecommunications Corp.
TeleCommunication Systems, Inc.
EXHIBIT C
Form of Escrow Agreement
See attached.
EXHIBIT D
Form of Government Contract Transition
Agreement
See attached.
EXHIBIT E
Form of Transition Services Agreement
EXHIBIT F
Form of IP and IT Assignment Agreement
See attached.
EX-4.1 — EXHIBIT 4.1
EX-4.1
Filename: tm2617923d1_ex4-1.htm · Sequence: 3
Exhibit 4.1
FORM OF
WARRANT
TO PURCHASE
SHARES OF COMMON STOCK
OF
COMTECH TELECOMMUNICATIONS CORP.
Original Issue Date: June 14, 2026
No. W-_
FOR VALUE RECEIVED, the undersigned,
Comtech Telecommunications Corp., a Delaware corporation (together with its successors and assigns, the “Company”),
hereby certifies that [INVESTOR] or any transferee, assignee or other subsequent holder hereof (the “Holder”) is entitled
to subscribe for and purchase, at the Exercise Price per share, the Warrant Share Number of duly authorized, validly issued, fully paid
and non-assessable shares of the Company’s common stock, par value $0.10 per share (the “Common Stock”). The
Common Shares (as defined below) issuable hereunder (the “Warrant Shares”) are entitled to the benefits of the Registration
Rights Agreement (as defined below). This Warrant is issued pursuant to that certain Subordinated Credit Agreement, dated as of October 17,
2024, by and among the Company, the lenders party thereto and U.S. Bank Trust Company, National Association, as administrative agent,
as amended by that certain Waiver and Amendment No. 1 to Subordinated Credit Agreement, dated as of March 3, 2025, that certain
Amendment No. 2 to Subordinated Credit Agreement, dated as of July 21, 2025, that certain Amendment No. 3 to Subordinated
Credit Agreement, dated as of the date hereof, and as may be further, amended, restated, amended and restated, supplemented or otherwise
modified from time to time in accordance with the terms thereof, the “Subordinated Credit Agreement”). Capitalized
terms used in this Warrant and not otherwise defined herein shall have the respective meanings specified in Section 8 hereof
or, if not specified in Section 8 hereof, the respective meanings ascribed thereto in that certain Subscription and Exchange
Agreement, dated as of March 3, 2025 (the “Series B-3 Exchange Agreement”), by and among the Company and
the entities listed on Exhibit B of that Subscription and Exchange Agreement and, following the Closing (as defined in the
Series B-4 Exchange Agreement), that certain Exchange Agreement (the “Series B-4 Exchange Agreement”, and
together with the Series B-3 Exchange Agreement, the “Exchange Agreement”), dated as of the date hereof, by and
among the Company and the entities listed on Exhibit B of that Exchange Agreement, in each case as may be amended, restated,
amended and restated, supplemented or otherwise modified from time to time in accordance with the terms thereof, regardless of whether
the Exchange Agreement remains in effect as of any date of determination.
The number of Warrant Shares
and the Exercise Price are subject to adjustment as provided herein, and all references to “Common Stock” and “Exercise
Price” herein shall be deemed to include any such adjustment or series of adjustments.
1. Term
and Vesting of the Warrant.
(a) Term.
Subject to Section 1(b), the right to subscribe for and purchase Warrant Shares represented hereby commences on the Original
Issue Date and shall expire prior to 5:00 p.m., New York, NY time, on April 17, 2032, or, if such day is not a Business Day, on the
next succeeding Business Day (such period being the “Term”). Until the expiration of the Term, the Holder of this Warrant
may exercise this Warrant for all or any part of the Warrant Shares purchasable hereunder (subject to adjustment as provided herein).
(b) Vesting.
This Warrant and the Warrant Shares hereunder shall vest and become exercisable on October 17, 2026 (the “Vesting Date”);
provided, however, that this Warrant shall not vest pursuant to this Section 1(b) if, prior to the Vesting Date,
the Closing Date Term Loans have been repaid in full (including, without limitation, payment of (x) all accrued and unpaid interest
thereon and (y) the applicable Make-Whole Amount (as defined in the Subordinated Credit Agreement) payable in connection therewith).
In the event the Closing Date Term Loans are repaid in full (including, without limitation, payment of (x) all accrued and unpaid
interest thereon and (y) the applicable Make-Whole Amount (as defined in the Subordinated Credit Agreement) payable in connection
therewith) prior to the Vesting Date, this Warrant shall be automatically and irrevocably forfeited and cancelled for no consideration,
and the Holder shall have no further rights hereunder.
2. Method
of Exercise; Payment; Issuance of New Warrant; Transfer and Exchange.
(a) Exercise
of Warrant. The purchase rights represented by this Warrant may be exercised in whole or in part at any time and from time to
time during the Term by delivering to the Company (by electronic mail or otherwise in accordance with Section 11) written
notice of such exercise in the form attached hereto as Exhibit A (each, an “Exercise Form”) and the applicable
Exercise Price, which may be satisfied by a Cash Exercise or a Cashless Exercise (as each is defined below), for each Warrant Share as
to which this Warrant is being exercised. The “Exercise Date” in respect of each exercise of this Warrant shall be
defined as the date that the Exercise Form in respect of such exercise is delivered to the Company in accordance with the terms hereof.
In the event that this Warrant has not been exercised in full as of the last Business Day during the Term and the fair market value of
one share of Common Stock on the Exercise Date exceeds the Exercise Price, subject to the Beneficial Ownership Limitation, the Holder
shall be deemed to have exercised the purchase rights represented by this Warrant in full as a Cashless Exercise as of 4:59 p.m. (New
York City time) on such last Business Day (and such last Business Day shall be deemed the Exercise Date for purposes of such exercise).
(b) Cash
Exercise. The Holder may pay the Exercise Price in respect of any Warrant Share(s) in cash (a “Cash Exercise”).
In the case of a Cash Exercise, within one (1) Trading Day (or, if less, the number of Trading Days comprising the Standard Settlement
Period on the Exercise Date) following the Exercise Date as aforesaid, the Holder shall deliver the aggregate Exercise Price for the Warrant
Shares specified in the applicable Exercise Form by wire transfer or cashier’s check drawn on a United States bank.
2
(c) Cashless
(Net Issue) Exercise. In lieu of paying the Exercise Price in respect of any Warrant Share(s) in cash, the Holder, at its
option, may exercise this Warrant (in whole or in part) on a cashless basis by making appropriate notation on the applicable Exercise
Form, in which event the Company shall issue to the Holder a number of Warrant Shares computed using the following formula (a “Cashless
Exercise”):
Where:
X
=
the number of the Warrant Shares to be issued to the Holder.
Y
=
the number of Warrant Shares with respect to which the Warrant is exercised.
A
=
the fair market value of one share of Common Stock on the Exercise Date.
B
=
the Exercise Price (as adjusted to the date of such calculation).
For purposes of this Section 2(c),
the “fair market value” of one share of Common Stock on the date of determination shall mean:
(i) if
the Market Price can be calculated in accordance with the definitions of “Market Price” and “Volume Weighted Average
Price,” the Market Price per share of Common Stock as of the Exercise Date; and
(ii) if
the Market Price cannot be calculated in accordance with the definitions of “Market Price” and “Volume Weighted Average
Price,” the fair market value of a share of Common Stock shall be the fair market value of a share of Common Stock as mutually determined
in good faith by the Company and the Holder.
The date of determination for purposes of this Section 2(c) shall
be the date the Exercise Form is delivered by the Holder to the Company.
3
(d) Issuance
of Warrant Shares and New Warrant. In the event of any exercise of the purchase rights represented by this Warrant in accordance
with the terms hereof, the Warrant Shares issuable upon such exercise shall be delivered by the Company, (i) in the case of an exercise
at a time when any of the Unrestricted Conditions is met as of the Exercise Date in respect of such Warrant Shares, by causing the Company’s
designated transfer agent (“Transfer Agent”) to electronically transmit the Warrant Shares issuable upon such exercise
to the Holder by crediting the account of the Holder’s prime broker with The Depository Trust Company (“DTC”),
through its Deposit/Withdrawal at Custodian (“DWAC”) system, as specified in the relevant Exercise Form, no later than
the later of (x) one (1) Trading Day (or, if less, the number of Trading Days comprising the Standard Settlement Period) after
the relevant Exercise Date; and, (y) in the case of a Cash Exercise, one (1) Trading Day after the date the applicable aggregate
Exercise Price is received by the Company, provided that a delay in delivering the Warrant Shares in accordance with this clause (i) to
the extent it is caused solely by a failure by the Holder or its designee to accept such DWAC transmission shall not be deemed a breach
of this Section 2(d), or (ii) in the case of an exercise at a time when the Warrant Shares issuable upon such exercise
are required to bear a restrictive legend pursuant to Section 2(f)(ii) because none of the Unrestricted Conditions is
met in respect thereof, issue and dispatch by overnight courier to the address as specified in the Exercise Form, a certificate, registered
in the name of the Holder or its designee, for the number of Warrant Shares to which the Holder is entitled pursuant to such exercise,
within two (2) Trading Days after the relevant Exercise Date. Upon the exercise of this Warrant or any part hereof, the Company shall,
at its own cost and expense, take all necessary action, including obtaining and delivering an opinion of counsel, if applicable, to assure
that the Transfer Agent shall transmit to the Holder in accordance with this Section 2(d) the number of Warrant Shares
issuable upon such exercise. The Company warrants that no instructions other than these instructions have been given and, the Company
agrees that no instructions other than these instructions will be given, to the Transfer Agent in respect of the Warrant Shares and the
Company covenants and agrees that it shall cause the Warrant Shares to not contain any legend or be subject to any stop transfer or similar
instruction, if any of the Unrestricted Conditions is met in respect thereof. Upon the delivery of an Exercise Form in accordance
with Section 2(a), the Holder shall be deemed for all purposes to have become the holder of record of the Warrant Shares with
respect to which this Warrant has been exercised, irrespective of the date such Warrant Shares are credited to the Holder’s or its
designee’s DTC account or the date of delivery of the certificates evidencing such Warrant Shares, as the case may be. The Holder
shall not be required to physically surrender this Warrant to the Company, except as provided in Section 2(e) in connection
with a transfer of this Warrant. Execution and delivery of an Exercise Form (i) with respect to a partial exercise shall have
the same effect as cancellation of the original Warrant and issuance of a new Warrant evidencing the right to purchase the remaining number
of Warrant Shares, and (ii) in respect of an exercise of this Warrant in full, shall have the same effect as cancellation of the
original Warrant. The Holder and the Company shall maintain records showing the number of Warrant Shares purchased and the remaining number
of Warrant Shares. The Holder and any assignee of the Holder, by acceptance of this Warrant, acknowledges and agrees that, by reason of
the provisions of this paragraph, following the purchase of a portion of the Warrant Shares hereunder, the Warrant Share Number (and,
therefore, the number of Warrant Shares available for purchase hereunder) at any given time may be less than the amount stated herein.
(e) Transferability
of Warrant. Subject to Section 2(f)(iii), this Warrant and all rights hereunder are transferable, in whole or in part,
by the Holder without charge to the Holder, upon surrender of this Warrant to the Company at its then principal executive offices with
a properly completed and duly executed Assignment Form in the form attached hereto as Exhibit B. Within two (2) Trading
Days of such surrender and delivery (the “Transfer Delivery Period”), the Company shall execute and deliver a new Warrant
or Warrants in the name of the assignee or assignees and in the denominations specified in such instrument of assignment, and shall issue
to the assignor a new Warrant evidencing the portion of this Warrant, if any, not so assigned and this Warrant shall promptly thereafter
be cancelled. Notwithstanding anything herein to the contrary, this Warrant, if properly assigned in accordance herewith, may be exercised
by a new Holder for the purchase of Warrant Shares immediately upon such assignment without having a new Warrant issued. The Company shall
pay any Transfer Taxes as such term is defined in Section 5(a) (below) imposed in connection with such transfer or assignment
(if any).
4
(f) Restrictive
Legend.
(i) The
Holder understands that until such time as the Warrant Shares have been registered under the Securities Act or otherwise may be sold pursuant
to Rule 144 or an exemption from registration under the Securities Act without any restriction as to the number of securities as
of a particular date that can then be immediately sold, the Warrant Shares may bear a restrictive legend in substantially the following
form (and a stop-transfer order consistent therewith may be placed against transfer of the certificates for such securities) (the “Securities
Law Legend”):
“THE OFFER AND SALE OF THIS SECURITY
AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), AND THIS SECURITY AND SUCH SHARES MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED EXCEPT (A) PURSUANT
TO A REGISTRATION STATEMENT THAT IS EFFECTIVE UNDER THE SECURITIES ACT; OR (B) PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION
NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. OR GUIDANCE, SUCH AS A SO-CALLED “4(a)(1) AND A HALF SALE.”
NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING
ARRANGEMENT SECURED BY THE SECURITIES.
(ii) The
Warrant Shares (and any certificates or electronic book entries evidencing the Warrant Shares) shall not contain or be subject to (and
Holder shall be entitled to removal of) any legend (or stop transfer or similar instruction) restricting the transfer thereof (including
the Securities Law Legend): (A) while a registration statement (including a Shelf Registration, as defined in the Registration Rights
Agreement) covering the sale or resale of such Warrant Shares is effective under the Securities Act and the Holder has undertaken in writing
to conduct all sales of such Warrant Shares pursuant to such registration statement or an exemption from such registration, or (B) if
the Holder provides customary paperwork to the effect that it has sold, or is selling substantially contemporaneously with the delivery
of such paperwork, such securities pursuant to such a registration statement or Rule 144 under the Securities Act, or (C) if
such Warrant Shares are eligible for sale under Rule 144(b)(1) under the Securities Act as set forth in customary, non-affiliate
paperwork provided by the Holder, or (D) if at any time on or after the date hereof the Holder certifies that it is not a Rule 144
Affiliate, and has not been a Rule 144 Affiliate for the preceding three (3) months, and that the Holder’s holding period
for purposes of Rule 144 (including, for the avoidance of doubt, subsection (d)(3)(ii) thereof) is at least six (6) months,
and if such holding period is less than one (1) year, the current public information requirement of Rule 144(b)(1) is then
met, or (E) if such legend is not otherwise required under applicable requirements of the Securities Act (including judicial interpretations
and pronouncements issued by the staff of the SEC) as determined in good faith by counsel to the Company or as set forth in a legal opinion
delivered by a nationally recognized counsel to the Holder (collectively, the “Unrestricted Conditions”). The Company
shall cause its counsel to issue a legal opinion to the Transfer Agent, promptly after the Registration Effective Date, or at such other
time as any of the Unrestricted Conditions has been satisfied, if the Transfer Agent requires such an opinion to effect the issuance of
the Warrant Shares without a restrictive legend or removal of the legend hereunder. If any of the Unrestricted Conditions is met at the
time of issuance of the Warrant Shares then such Warrant Shares shall be issued free of all legends and stop-transfer instructions. The
Company agrees that following the Registration Effective Date or at such other time as any of the Unrestricted Conditions is met or such
legend is otherwise no longer required under this Section 2(f), it will, no later than the earlier of (x) one (1) Trading
Day and (y) the number of Trading Days comprising the Standard Settlement Period following the delivery by the Holder to the Company
or the Transfer Agent of the Warrant Shares issued with a restrictive legend, deliver or cause to be delivered to the Holder or its designee
the Warrant Shares free from all restrictive and other legends (or similar notations) by crediting the account of the Holder’s prime
broker with DTC, through its DWAC system. For purposes hereof, “Registration Effective Date” shall mean the first date
that the first Resale Shelf Registration Statement (as defined in the Registration Right Agreement) covering the Warrant Shares that the
Company is required to file pursuant to the Registration Rights Agreement has been declared effective by the SEC. The Company acknowledges
and agrees that, the Holder shall be deemed to have certified that it is not a Rule 144 Affiliate and has not been a Rule 144
Affiliate for the preceding three (3) months upon each delivery of an Exercise Form, unless the Holder otherwise advises the Company
in writing. The Holder, by acceptance hereof, acknowledges and agrees that the removal of any restrictive legends from any securities
as set forth in this Section 2(f)(ii) is predicated upon the Company’s reliance that the Holder will sell such
securities pursuant to either the registration requirements of the Securities Act or an exemption therefrom, and that if such securities
are sold pursuant to a registration statement, they will be sold while such registration statement is effective and available for resales
of such securities, in compliance with the plan of distribution set forth therein.
5
(iii) The
Holder, by acceptance hereof, covenants that it will not sell or otherwise transfer any Warrants or Warrant Shares except pursuant to
an effective registration statement under the Securities Act or pursuant to an exemption from the registration and prospectus delivery
requirements of the Securities Act.
(g) No
Fractional Shares or Scrip. No fractional shares or scrip representing fractional Warrant Shares shall be issued upon the exercise
of this Warrant. If any fraction of a share of Common Stock would, except for the provisions of this Section 2(g), be issuable
on the exercise of this Warrant, the Holder shall be entitled to receive a cash payment equal to the Market Price of the Common Stock
less the Exercise Price for such fractional share.
(h) Replacement
of Warrant. On receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of this
Warrant and, in the case of loss, theft or destruction, on delivery of an indemnity agreement reasonably satisfactory in form and substance
to the Company or, in the case of mutilation, on surrender and cancellation of this Warrant, the Company shall execute and deliver, in
lieu of this Warrant, a new Warrant of like tenor and amount.
6
(i) No
Rights of Stockholders. Except as otherwise provided herein, including in Section 4(c), the Holder, as such, shall
not be entitled to vote or be otherwise deemed the holder of Common Shares or any other securities of the Company that may at any time
be issuable on the exercise hereof for any purpose, nor shall anything contained herein be construed to confer upon the Holder, as such,
any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders
at any meeting thereof, or to give or withhold consent to any corporate action (whether upon any recapitalization, issuance of stock,
reclassification of stock, change of par value, or change of stock to no par value, consolidation, merger, conveyance, or otherwise) or
to receive notice of meetings.
(j) Holder’s
Exercise Limitations. Notwithstanding anything to the contrary contained in any Section herein, the Company shall not effect
any exercise of this Warrant, and the Holder shall not be entitled to exercise this Warrant for Warrant Shares to the extent that after
giving effect to such exercise such Holder, either alone or as a part of a “group” (within the meaning of Section 13(d)(3) of
the Exchange Act) “beneficially owning” (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act and for purposes
of Section 13 and Section 16 of the Exchange Act) in excess of nine and ninety-nine hundredths percent (9.99%) (the “Beneficial
Ownership Limitation”) of the then outstanding shares of Common Stock, provided, that the Beneficial Ownership Limitation shall
only apply to the extent that the Common Stock is deemed to constitute an “equity security” pursuant to Rule 13d-(i)1
under the Exchange Act. For purposes of this Warrant, in determining the number of outstanding Common Shares, the Holder may rely on the
number of outstanding Common Shares as reflected in (x) the Company’s most recent Quarterly Report on Form 10-Q or Annual
Report on Form 10-K, or any current report filed by the Company with the Commission subsequent thereto, in each case, filed with
the SEC prior to the date hereof, (y) a more recent public announcement by the Company or (z) a written confirmation by the
Company or the Transfer Agent, within two (2) Trading Days following a written request from a Holder, of the number of shares of
Common Stock then outstanding. Upon the written request of the Holder, the Company shall within two (2) Trading Days confirm in writing
or by electronic mail to the Holder the number of Common Shares then outstanding. In any case, the number of outstanding Common Shares
shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder
and its Rule 144 Affiliates since the date as of which such number of outstanding Common Shares was reported. By written notice to
the Company, the Holder may from time to time increase or decrease the maximum percentage to any other percentage specified not in excess
of 19.99% (the “Maximum Cap”) in such notice; provided that any such increase will not be effective until the sixty-first
(61st) day after such notice is delivered to the Company (such sixty-first (61st) day, the “Effective Date”) provided
further, that (i) the Maximum Cap shall only apply to the extent required by Nasdaq Marketplace Rule 5635(b) (“Rule 5635(b)”)
and if the Maximum Cap is not required pursuant to Rule 5625(b), then, the Warrant held by the Holder shall be exercisable on or
after the Ownership Limitation Increase Effective Date following the delivery of the notice up to any other percentage of outstanding
shares set forth in such notice without regard to the Maximum Cap, and (ii) such Maximum Cap may not be amended or waived absent
Company stockholder approval in accordance with Rule 5635(b). [Notwithstanding the foregoing, any Holder who has acquired or holds
Warrants with the purpose or effect of changing or influencing the control of the Company, or in connection with or as a participant in
any transaction having such purpose or effect, shall not be permitted to increase the Ownership Limitation in excess of 9.99%.]1
For purposes of this Section 2(j), the aggregate number of Common Shares or voting securities beneficially owned by the Holder
and its Rule 144 Affiliates and any other Persons whose beneficial ownership of Common Shares would be aggregated with the Holder’s
for purposes of Section 13(d) of the Exchange Act shall include the Common Shares issuable upon the exercise of this Warrant
with respect to which such determination is being made, but shall exclude the number of Common Shares which would be issuable upon (x) exercise
of the remaining unexercised and non-cancelled portion of this Warrant by the Holder and (y) exercise or conversion of the unexercised,
non-converted or non-cancelled portion of any other securities of the Company that do not have voting power (including, without limitation,
any securities of the Company which would entitle the holder thereof to acquire at any time Common Stock, including, without limitation,
any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable
for, or otherwise entitles the holder thereof to receive, Common Stock), is subject to a limitation on conversion or exercise analogous
to the limitation contained herein and is beneficially owned by the Holder or any of its Rule 144 Affiliates and other Persons whose
beneficial ownership of Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the Exchange
Act. This Section 2(j) shall not limit the number of Common Shares issuable upon exercise of this Warrant for purposes
of determining the amount of securities or other consideration that such Holder may receive in the event of a Major Transaction or an
Organic Change as contemplated in this Warrant.
1 To be inserted only in Warrants to be issued to affiliates of White
Hat Capital Partners LP.
7
(k) Cash
Damages for Failure to Timely Issue Warrant Shares. If by the earlier of (i) one (1) Trading Day and (y) the number
of Trading Days comprising the Standard Settlement Period, in each case, following the delivery by the Holder to the Company or the Transfer
Agent of an Exercise Form (the “Cash Damages Trigger Date”) the Company shall fail to issue and deliver a certificate
to the Holder for, or, if as required by Section 2(d) hereof the Company shall fail to credit the Holder’s or its
designee’s balance account with DTC with, the applicable number of Warrant Shares (in each case, free of any restrictive legend,
provided that any Unrestricted Condition is satisfied), the Company shall pay additional damages to the Holder, in cash, for each thirty
(30) day period after such Cash Damages Trigger Date such exercise is not timely effected in an amount equal to (prorated for any partial
period) one percent (1.00%) of (the product of (I) the number of Warrant Shares not issued and delivered to the Holder (in each case,
free of any restrictive legend, provided, that any Unrestricted Condition is satisfied) or its designee prior to the Cash Damages Trigger
Date and to which the Holder is entitled and (II) the Volume Weighted Average Price of a share of Common Stock on the last day of
the Delivery Period. In addition to any other rights or remedies available to the Holder under this Warrant, the Subordinated Credit Agreement,
or otherwise at law or in equity, at the written election of the Holder made in the Holder’s sole discretion, if, on or after the
last day of the Delivery Period in respect of such Exercise, the Holder or its brokerage firm purchases (in an open market transaction
or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares that the Holder was entitled
to receive upon such exercise (such purchased shares, “Buy-In Shares”), the Company shall (1) be obligated to
promptly pay to the Holder (in addition to all other available remedies that the Holder may otherwise have), 105% of the amount by which
(A) the Holder’s total purchase price (including brokerage commissions, if any) for such Buy-In Shares exceeds (B) the
net proceeds received by the Holder from the sale of a number of shares equal to up to the number of Warrant Shares such Holder was entitled
to receive but had not received on or before the last day of such Delivery Period date, and (2) at the option of the Holder, either
reinstate the portion of this Warrant and equivalent number of Warrant Shares for which such exercise was not honored (and refund the
Exercise Price therefor, to the extent paid by Holder), or deliver to the Holder the number of Common Shares that would have been issued
had the Company timely complied with its exercise and delivery obligations hereunder. Nothing herein shall limit a Holder’s right
to pursue any other remedies available to it hereunder, at law or in equity including a decree of specific performance and/or injunctive
relief with respect to the Company’s failure to timely deliver the Common Shares upon exercise of this Warrant as required pursuant
to the terms hereof.
8
(l) Void
Exercise Form. If for any reason the Holder has not received all of the Warrant Shares (free of any restrictive legend, provided
that any Unrestricted Condition is satisfied) prior to the earlier of (i) one (1) Trading Day and (y) the number of Trading
Days comprising the Standard Settlement Period, in each case, following the delivery by the Holder to the Company or the Transfer Agent
of an Exercise Form, then the Holder, upon written notice to the Company by electronic mail (a “Void Exercise Notice”),
may void its Exercise Form with respect to, and retain or have returned, as the case may be, any portion of this Warrant with respect
to which Warrant Shares have not been delivered pursuant to the Holder’s Exercise Form; provided, that the voiding of the Holder’s
Exercise Form shall not affect the Company’s obligations to make any payments that have accrued prior to the date of such Void
Exercise Notice pursuant to this Section 2(l).
3. Certain
Representations and Agreements. The Company represents, warrants, covenants and agrees:
(a) This
Warrant is, and any Warrant issued in substitution for or replacement of this Warrant shall be, upon issuance, duly authorized and validly
issued.
(b) All
Warrant Shares issuable upon the exercise of, or otherwise pursuant to, this Warrant pursuant to the terms hereof shall be, upon issuance,
and the Company shall take all such actions as may be necessary or appropriate in order that such Warrant Shares are, validly issued,
fully paid and non-assessable, issued without violation of any preemptive or similar rights of any stockholder of the Company, and free
from all taxes, liens and charges. As of the Original Issue Date, the Company has reserved from its authorized and unissued Common Shares,
exclusively for issuance upon exercise of this Warrant, and from and after the Original Issue Date the Company shall at all times reserve
and keep available out of its authorized but unissued Common Shares solely for the purpose of effecting exercises of this Warrant, such
number of Common Shares as shall from time to time be sufficient to effect the exercise of this Warrant in full for cash (without giving
effect to the Beneficial Ownership Limitation or any other limitations on exercise herein or elsewhere); and if at any time the number
of authorized but unissued Common Shares shall not be sufficient to effect the exercise of this Warrant in full, the Company will use
reasonable best efforts to take such corporate action as may be necessary to increase its authorized but unissued Common Shares to such
number of shares as shall be sufficient for such purpose, including, without limitation, calling a special meeting of stockholders and/or
any other relevant corporate body to amend the Company’s charter increasing the authorized share capital of the sufficiently high
to meet the Company’s obligations under this Section 3(b).
9
(c) The
Company shall take all such actions as may be necessary to ensure that all Warrant Shares are issued without violation of any applicable
law or governmental regulation or any requirements of any securities exchange upon which shares of the Company’s capital stock may
be listed at the time of such exercise.
(d) The
Company will use its reasonable best efforts to procure, subject to issuance or notice of issuance, the listing of any Warrant Shares
issuable upon exercise of this Warrant on the principal stock exchange on which the Common Stock is then listed or traded.
(e) The
authorization, execution, delivery and performance by the Company of this Warrant, and the consummation by the Company of the transactions
contemplated hereby, including the issuance of this Warrant and the Warrant Shares do not and will not: (i) violate or result in
the breach of any provision of the Certificate of Incorporation, Bylaws and Certificate of Designations; or (ii) with such exceptions
that have not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect: (x) violate
any provision of, constitute a breach of, or default under, any judgment, order, writ, or decree applicable to the Company or any of its
Subsidiaries or any material contract, mortgage or credit agreement to which the Company or any of its Subsidiaries is a party; (y) violate
any provision of, constitute a breach of, or default under, any applicable state, federal or local law, rule or regulation; or (z) result
in the creation of any liens, pledges, mortgages, security interests or other encumbrances or charges of any kind upon any assets of the
Company or any of its Subsidiaries or the suspension, revocation or forfeiture of any franchise, permit or license granted by a governmental
authority to the Company or any of its Subsidiaries, other than liens under federal or state securities laws.
(f) No
shareholder approval is required pursuant to the rules of the Nasdaq Stock Market in connection with the issuance of this Warrant
or the Warrant Shares. The Company has taken all appropriate actions so that the restrictions on business combinations contained in Section 203
of the DGCL will not apply with respect to or as a result of the issuance of this Warrant (or the Warrant Shares) to the Holder or the
transfer thereof, without any further action on the part of the stockholders of the Company or the Board of Directors.
(g) No
consent, approval or authorization of, or filing with, any court or governmental authority is or will be required on the part of the Company
in connection with the issuance of this Warrant and the Warrant Shares, except for those which have already been made or granted, including
the approval of the listing of the Warrant Shares with the Nasdaq Stock Market.
10
4. Adjustments
and Other Rights. The Exercise Price and Warrant Share Number shall be subject to adjustment from time to time as follows; provided
that no single event shall cause an adjustment or distribution under more than one subsection of this Section 4 so as to result
in duplication.
(a) Adjustments
to Exercise Price. Upon any adjustment to the number of Warrant Shares for which this Warrant is exercisable pursuant to this
Section 4, the Exercise Price shall immediately be adjusted to equal the quotient obtained by dividing (i) the aggregate
Exercise Price of the Warrant Share Number for which this Warrant was exercisable immediately prior to such adjustment by (ii) the
Warrant Share Number for which this Warrant is exercisable immediately after such adjustment; provided, however, that the Exercise
Price with respect to the new Warrant Share Number for which this Warrant is exercisable resulting from any such adjustment shall not
be less than the par value per share at such time (which, for the avoidance of doubt, is $0.10 as of the issue date of this Warrant).
(b) Stock
Splits, Subdivisions, Reclassifications or Combinations. If the Company shall at any time or from time to time (i) pay or
make a dividend or make a distribution on its Common Stock in Common Shares, (ii) split, subdivide or reclassify the outstanding
Common Shares into a greater number of shares or (iii) combine or reclassify the outstanding Common Shares into a smaller number
of shares (each of the transactions described in clauses (i)-(iii), a “Stock Event”), the Warrant Share Number at the
time of the record date for such dividend or distribution or the effective date of such split, subdivision, combination or reclassification
shall be proportionately adjusted so that the Holder immediately after such record date or effective date, as the case may be, shall be
entitled to purchase the number of Common Shares which such Holder would have owned or been entitled to receive in respect of the Common
Shares subject to this Warrant after such date had such Holder held a number of Common Shares equal to the Warrant Share Number immediately
prior to such record date or effective date, as the case may be. In the event of such adjustment, the Exercise Price in effect at the
time of the record date for such dividend or distribution or the effective date of such split, subdivision, combination or reclassification
shall be immediately adjusted to the number obtained by dividing (x) the product of (1) the Warrant Share Number before the
adjustment determined pursuant to the immediately preceding sentence and (2) the Exercise Price in effect immediately prior to the
record or effective date, as the case may be, for the dividend, distribution, split, subdivision, combination or reclassification giving
rise to such adjustment by (y) the new Warrant Share Number determined pursuant to the immediately preceding sentence. If any Stock
Event is declared or announced, but not so paid or made, the Exercise Price and the Warrant Share Number shall again be adjusted to be
the Exercise Price and Warrant Share Number that would then be in effect had such Stock Event not been declared or announced.
11
(c) Distributions.
Notwithstanding anything to the contrary contained herein (including, for the avoidance of doubt, Section 2(j)), the Holder,
as the holder of this Warrant, shall be entitled to receive, and shall be paid by the Company, any dividend paid or distribution of any
kind made to the holders of Common Stock, other than a dividend or distribution resulting in an adjustment pursuant to Section 4(b),
to the same extent as if the Holder had exercised this Warrant in full in a Cash Exercise (without regard to the Beneficial Ownership
Limitation or any other limitations on exercise herein or elsewhere and without regard to whether or not a sufficient number of shares
are authorized, reserved and available to effect any such exercise and issuance) and had held such Warrant Shares on the record date for
such dividend or distribution (or, if there is no record date therefor, on the date of such dividend or distribution). Payments or distributions
under this Section 4(c) shall be made concurrently with the dividend or distribution to holders of the Common Stock.
For the avoidance of doubt, if at any time the Company grants, issues or sells any options, convertible securities or rights to purchase
stock, warrants, securities or other property pro rata to the record holders of any class of its capital stock (the “Purchase
Rights”), and such grant, issuance or sale does not result in a dividend or distribution resulting in an adjustment pursuant
to Section 4(b), then the Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate
Purchase Rights that the Holder could have acquired if the Holder had held the number of shares of Common Stock acquirable upon exercise
in full of this Warrant (without regard to the Beneficial Ownership Limitation or any other limitations on exercise herein or elsewhere
and without regard to whether or not a sufficient number of shares are authorized, reserved and available to effect any such exercise
and issuance) immediately before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no
such record is taken, the date as of which the record holders of Common Stock are to be determined for the grant, issue or sale of such
Purchase Rights. For the avoidance of doubt, in the case of a dividend or distribution for which an adjustment is required to be made
pursuant to Section 4(b), the Holder shall not be entitled to participate in such dividend or distribution pursuant to this
Section 4(c).
(d) Event
of Default. Not later than two (2) Business Days following the occurrence of an Event of Default, the Company shall deliver
written notice thereof via electronic mail and overnight courier to the Holder (a “Default Notice”), which notice shall
prominently indicate that it is a “Default Notice,” and make a public announcement of such Event of Default. In the event
of an Event of Default, the Company shall, at the Holder’s option, exercisable by written election of the Holder delivered to the
Company at any time prior to the thirtieth (30th) day following the occurrence of the Event of Default (or, if later, the thirtieth
(30th) day following the date of delivery to the Holder of the Default Notice in respect of such Event of Default), purchase
this Warrant from the Holder by paying or delivering to the Holder an amount in cash equal to the Black Scholes Value of the unexercised
portion of this Warrant. For purposes of clarification, the Holder shall not be required to exercise the Warrant or pay the Exercise Price
in order to receive such Black-Scholes Value. The payment of such Black-Scholes Value will be made by wire transfer of immediately available
funds within five (5) Business Days of the Holder’s election. The Beneficial Ownership Limitation and any other restriction
or limitation on exercise of this Warrant shall be disregarded for purposes of the determination of the Black Scholes Value of the remaining
unexercised portion of this Warrant.
12
(e) Organic
Change and Major Transaction.
(i) At
least thirty (30) days prior to the occurrence of any Major Transaction or Organic Change, but, in any event, within one (1) Trading
Day following the (x) the date of the first public announcement by any Person of such Major Transaction or Organic Change if such
announcement is made before 4:00 p.m., New York City time, or (y) the day following the public announcement of such Major Transaction
or Organic Change if such announcement is made at or after 4:00 p.m., New York City time, the Company shall deliver written notice thereof
via electronic mail and overnight courier to Holder (a “Major Transaction/Organic Change Notice”); provided,
however, that, with respect to any Major Transaction or Organic Change that is not a Successor Major Transaction, the applicable
deadline by which the Company must deliver the Major Transaction/Organic Change Notice shall be one (1) Trading Day following (x) the
date of the first public announcement by any Person of such Major Transaction or Organic Change if such announcement is made before 4:00
p.m., New York City time, or (y) the day following the date of the first public announcement by any Person of such Major Transaction
or Organic Change if such announcement is made on or after 4:00 p.m., New York City time; and provided, further, that the Company shall
make a public announcement of any Major Transaction or Organic Change no later than one (1) Trading Day after the Company first has
knowledge of the occurrence thereof. Each Major Transaction/Organic Change Notice shall prominently indicate that it is a “Major
Transaction/Organic Change Notice” and the subject of any email that contains or attaches a Major Transaction/Organic Change Notice
shall be “Comtech – Major Transaction/Organic Change Notice.” Each Major Transaction/Organic Change Notice shall set
forth the date on which the applicable Major Transaction or Organic Change has been or will be consummated or occur (or, if such date
is not known, the Company’s good faith estimate of the date of such consummation or occurrence). If a Major Transaction or Organic
Change shall not have been consummated or occurred within thirty (30) days following any date on which a Major Transaction/Organic Change
Notice with respect thereto shall have been delivered to the Holder, then promptly following such thirtieth (30th) day, such
Major Transaction/Organic Change Notice shall be re-sent in accordance with this Section 4(e)(i) (provided, that such
notice shall be updated, if applicable, to reflect the Company’s good faith estimate of the date on which the Major Transaction
or Organic Change will be consummated or occur as of the date such notice is re-sent). Such notices shall be sent successively after each
30-day period following delivery of a Major Transaction/Organic Change Notice that the applicable Major Transaction or Organic Change
is not consummated or does not occur, unless the Company shall have publicly announced that such Major Transaction or Organic Change shall
not occur or be consummated. Without limiting the rights and remedies of the Holder hereunder or under the Subordinated Credit Agreement,
or otherwise at law or in equity, the failure to timely deliver or re-send any Major Transaction/Organic Change Notice or other notice
pursuant to this Section 4 or to include any required information in such notice shall toll any time period hereunder for
any response responding to, or taking any action following, such notice by the Holder.
(ii) Subject
to the right of the Holder to elect a Major Transaction Repurchase, in the event of a Major Transaction, then, upon any subsequent exercise
of this Warrant, the Holder shall have the right to receive, for each Warrant Share that would have been issuable upon such exercise immediately
prior to the occurrence of such Major Transaction, at the option of the Holder (without regard to any limitation in Section 2(d) on
the exercise of this Warrant or any other limitations on exercise herein or elsewhere and without regard to whether or not a sufficient
number of shares are authorized, reserved and available to effect any such exercise and issuance), the number of shares of Common Stock
of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the
“Alternate Consideration”) receivable as a result of such Major Transaction by a holder of the number of shares of
Common Stock for which this Warrant is exercisable immediately prior to such Major Transaction (without regard to the Beneficial Ownership
Limitation or any other limitations on exercise herein or elsewhere and without regard to whether or not a sufficient number of shares
are authorized, reserved and available to effect any such exercise and issuance), assuming this Warrant were exercised for cash. If holders
of Common Stock are given any choice as to the securities, cash or property to be received in a Major Transaction, then the Holder shall
be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Major Transaction.
13
(iii) Notwithstanding
anything to the contrary contained herein and without regard to the Beneficial Ownership Limitation or any other limitations on exercise
herein or elsewhere and without regard to whether or not a sufficient number of shares are authorized, reserved and available to effect
any such exercise and issuance, in the event of a Major Transaction, the Company or any Successor Entity shall, at the Holder’s
option, exercisable by written election of the Holder delivered to the Company, (A) in the case of a Successor Major Transaction,
at any time during the period beginning on the date the Company first delivers (or by which it is first obligated to deliver) such Major
Transaction/Organic Change Notice and ending on the later of five (5) Trading Days immediately prior to the occurrence of such Major
Transaction and fifteen (15) Trading Days after such Holder’s receipt of the last Major Transaction/Organic Change Notice received
by such Holder and (B) in the case of a Major Transaction other than a Successor Major Transaction, at any time beginning on the
date the Company delivers (or by which it is obligated to deliver) a Major Transaction/Organic Change Notice with respect thereto for
so long as this Warrant remains outstanding, purchase this Warrant from the Holder by paying or delivering to the Holder the Major Transaction
Consideration (a “Major Transaction Repurchase”). For purposes of clarification, the Holder shall not be required to
exercise the Warrant or pay the Exercise Price in order to receive the Major Transaction Consideration. The payment of the cash component
of the Major Transaction Consideration will be made by wire transfer of immediately available funds within five (5) Business Days
of the Holder’s election (or, if later, on the effective date of the Major Transaction) and the delivery of any non-cash component(s) of
the Major Transaction Consideration shall be delivered to the Holder on substantially the same basis as a holder of Common Shares would
be entitled to receive comparable consideration as a result of the Major Transaction. The Beneficial Ownership Limitation and any other
restriction or limitation on exercise of this Warrant (including any such restriction or limitation resulting from an insufficient number
of authorized, reserved and available shares to effect the exercise of this Warrant) shall be disregarded for purposes of the determination
of the Black Scholes Value of the remaining unexercised portion of this Warrant.
(iv) The
Company shall cause any acquiring, surviving or successor entity in a Major Transaction or Organic Change in which the Company does not
survive as the parent entity (the “Successor Entity”) to assume in writing all of the obligations of the Company under
this Warrant and the Registration Rights Agreement in accordance with the provisions hereof and thereof pursuant to written agreements
in form and substance reasonably satisfactory to the Holder and approved by the Required Holders prior to such Major Transaction or Organic
Change, including agreements to deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written
instrument substantially similar in form and substance to this Warrant that is exercisable for a corresponding number of shares of capital
stock of such Successor Entity (or its parent entity) equivalent to the shares of Common Stock acquirable and receivable upon exercise
of this Warrant (without regard to the Beneficial Ownership Limitation or any other limitations on exercise herein or elsewhere and without
regard to whether or not a sufficient number of shares are authorized, reserved and available to effect any such exercise and issuance,
and assuming this Warrant is exercised for cash) prior to such Major Transaction or Organic Change, as applicable, and with an exercise
price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the shares
of Common Stock pursuant to such Major Transaction or Organic Change and the value of such shares of capital stock, to the extent necessary
to protect the Holders from any loss of value of this Warrant immediately prior to the consummation of such Major Transaction), and which
is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Organic Change or Major Transaction in
which there is a Successor Entity, the Successor Entity shall succeed to, and be substituted for the Company (so that from and after the
occurrence of such Organic Change or Major Transaction, the provisions of this Warrant referring to the “Company” shall refer
instead to the Successor Entity), and the Successor Entity shall assume all of the obligations of the Company under this Warrant and the
Registration Rights Agreement with the same effect as if the Successor Entity had been named as the Company herein and therein.
14
(v) Notwithstanding
anything to the contrary contained herein, the Holder may deliver an Exercise Form not less than five (5) Business Days prior
to the closing of a Major Transaction or the occurrence of any other transaction or event that provides for the exercise of this Warrant
(in whole or in part), that is conditioned upon, and, at the election of the Holder, shall occur concurrently with, or immediately prior
to, the consummation of such Major Transaction, other transaction or event (which, in the case of an Asset Sale, may be the distribution
of assets to the Company’s stockholders); provided, that delivery of such an Exercise Form shall not prohibit the Holder
from exercising this Warrant in accordance with its terms during such five (5) Business Day period.
(vi) If,
at any time while this Warrant is outstanding an Organic Change is consummated or otherwise occurs, then, upon exercise of this Warrant,
the Holder shall be entitled to receive in lieu of (or in addition to, as the case may be) the Warrant Shares, the kind and amount of
securities, cash or other property of the Company or the Successor Entity, as the case may be, resulting from such Organic Change, which
a Holder of the Warrant Share Number (at the time of such Organic Change and, for the avoidance of doubt, without regard to the Beneficial
Ownership Limitation or any other restriction or limitation on exercise) of Warrant Shares would have been entitled to receive upon consummation
of such Organic Change if such Warrant Shares had been outstanding immediately prior to such Organic Change; and in any such case, if
applicable, the provisions set forth herein with respect to the rights and interests thereafter of the Holder shall be appropriately adjusted
(pursuant to a written agreement in form and substance reasonably satisfactory to the Required Holders) so as to be applicable, as nearly
as may reasonably be, to the Holder’s right to exercise this Warrant in exchange for any shares of stock or other securities or
property pursuant to this paragraph. If holders of Common Shares are given any choice as to the kind and/or amount of stock and/or other
securities or property (including cash) to be received in an Organic Change, then the Holder shall be given the same choice as to the
consideration it receives upon any exercise of this Warrant following such Organic Change. For the avoidance of doubt, neither the provisions
of this Section 4(e)(vi) nor any partial exercise of this Warrant following the occurrence of an Organic Change shall
in any way limit the right of the Holder to elect a Major Transaction Repurchase.
15
(vii) The
Company shall not effect a Successor Major Transaction with respect to which Holder has elected to cause a repurchase of this Warrant
in accordance with this Section 4(e) without first either (a) placing into an escrow account with an independent
escrow agent, at least three (3) Business Days prior to the closing date of the Successor Major Transaction, the relevant Major Transaction
Consideration or (b) obtaining the written agreement of any Successor Entity that the payment of the Major Transaction Consideration
shall be a condition precedent to consummation of such Successor Major Transaction. In the event that the Company attempts to consummate
a Major Transaction without complying with this Section 4(e), the Holder shall have the right to apply for an injunction in
any state or federal court sitting in the City of New York, borough of Manhattan to prevent the closing of such Major Transaction until
the Company (and, if applicable, the Successor Entity) shall have complied with provisions of this Section 4(e), without the
necessity of showing economic loss and without any bond or other security being required.
(viii) For
the avoidance of doubt, the rights and obligations of the Company and each Holder upon the occurrence of a Major Transaction or Organic
Change are conditional upon such Major Transaction or Organic Change being consummated (or actually occurring, as applicable) and in the
event that a Major Transaction or Organic Change for which a Holder is given notice is not consummated (or does not occur), then upon
written notice from the Company to such Holder confirming that such Major Transaction or Organic Change has not and will not be consummated
(or occur), all actions taken under this Section 4(e) prior to such written notice in connection with such Major Transaction
or Organic Change shall be deemed to be rescinded and null and void. In the event that such Major Transaction is being consummated pursuant
to an agreement between the Company (or any Rule 144 Affiliate thereof) and any other Person, the Company shall not deliver the written
notice contemplated by the immediately preceding sentence unless such agreement has terminated.
(f) Certain
Repurchases of Common Shares. In case the Company effects a Pro Rata Repurchase of shares of Common Stock and the value (determined
as of the time (the “Expiration Time”) such Pro Rata Repurchase expires by the Company in good faith) of the cash and
other consideration paid per share of Common Stock in such Pro Rata Repurchase exceeds the Closing Price per share of Common Stock on
the Trading Day immediately after the last date (the “Expiration Date”) on which tenders or exchanges may be made pursuant
to such Pro Rata Repurchase (such Closing Price, the “Pro Rata Repurchase Closing Price”), then the Exercise Price
shall be reduced (but in no event increased) to the price determined by multiplying the Exercise Price in effect immediately prior to
the Expiration Time by a fraction of which the numerator shall be (i) the product of (x) the number of shares of Common Stock
outstanding immediately prior to such Pro Rata Repurchase (including the shares to be repurchased or exchanged in the Pro Rata Repurchase)
and (y) the Pro Rata Repurchase Closing Price, minus (ii) the aggregate value of all cash and any other consideration (determined
as of the Expiration Time by the Company in good faith) paid or payable for shares purchased in such Pro Rata Repurchase, and of which
the denominator shall be the product of (x) the number of shares of Common Stock outstanding immediately prior to such Pro Rata Repurchase,
excluding the shares to be repurchased or exchanged in the Pro Rata Repurchase and (y) the Pro Rata Repurchase Closing Price. In
such event, the Warrant Share Number shall be increased (but in no event decreased) to the number obtained by dividing (i) the product
of (x) the Warrant Share Number before such adjustment, and (y) the Exercise Price in effect immediately prior to the Pro Rata
Repurchase giving rise to this adjustment by (ii) the new Exercise Price determined in accordance with the immediately preceding
sentence.
16
(g) Other
Events. If any event of the type contemplated by the provisions of Section 4(a), 4(b), 4(d),
4(e) or 4(f) or any other provision hereof that provides for an adjustment of Exercise Price, the Warrant Share
Number, or the number and class of shares of capital stock issuable upon exercise of this Warrant, but not expressly provided for by any
such provision occurs, then the Company shall make an appropriate adjustment in the Exercise Price, the Warrant Share Number and/or number
and class of shares of capital stock issuable upon exercise of this Warrant so as to protect the rights of the Holder in a manner consistent
with such provisions; provided, that no such adjustment shall increase the Exercise Price or decrease the Warrant Share Number except
as otherwise determined pursuant to the express provisions of Section 4(a) or 4(b).
(h) Calculations.
All calculations under this Section 4 shall be made to the nearest one-hundredth (1/100th) of a cent or to the nearest
one-tenth (l/10th) of a share, as the case may be.
(i) Notice
of Adjustments. Whenever the Exercise Price or the Warrant Share Number shall be adjusted as provided in this Section 4,
the Company shall as promptly as practicable deliver to the Holder a certificate of its Chief Financial Officer (the “Adjustment
Certificate”) setting forth, in reasonable detail, the event requiring such adjustment and the method by which such adjustment
was calculated and specifying the Exercise Price and Warrant Share Number that shall be in effect after such adjustment. Notwithstanding
the foregoing, if the Holder objects to the Exercise Price and the Warrant Share Number (after giving effect to the proposed adjustment)
set forth in the Adjustment Certificate, the Holder shall notify the Company of the in writing of such objection (such notice, the “Objection
Notice”) as promptly as practicable, in any event no later than five (5) Business Days, after delivery of the Adjustment
Certificate by the Company, specifying, in reasonable detail, the nature of any objection so asserted, and include all supporting calculation,
analyses and other documentation. If the Holder delivers an Objection Notice pursuant to this Section 4(i), the Company and
the Holder shall negotiate in good faith to resolve any objection set forth in the Objection Notice. If the Company and the Holder are
unable to resolve all objections set forth in the Objection Notice within fifteen (15) Business Days of delivery of the Objection Notice
by the Holder to the Company (or such longer period as the Company and the Holder may agree), then the Company shall promptly obtain a
certificate of an independent, nationally recognized accounting or investment banking firm (which firm does not have a material financial
interest in either the Company or the Holder or any of their respective Affiliates) appointed for such purpose (the “Independent
Financial Expert”) setting forth the same information, and such certificate shall be used as the basis to effect the applicable
adjustment. The costs and expenses of such Independent Financial Expert shall be paid by the Holder, unless the calculations of the Exercise
Price and the Warrant Share Number (after giving effect to the proposed adjustment) set forth in the certificate of the Independent Financial
Expert differ by 10% or more from the calculations set forth in the Adjustment Certificate, in which case such costs and expenses shall
be paid by the Company.
(j) Adjustment
Rules. Any adjustments pursuant to this Section 4 shall be made successively whenever an event referred to herein
shall occur. If an adjustment in Exercise Price made hereunder would reduce the Exercise Price to an amount below the par value of the
Common Stock, then such adjustment in Exercise Price made hereunder shall reduce the Exercise Price to the par value of the Common Stock.
17
(k) Proceedings
Prior to any Action Requiring Adjustment. As a condition precedent to the taking of any action which would require an adjustment
pursuant to this Section 4, the Company shall take such actions as are necessary, which may include obtaining regulatory,
stock exchange or stockholder approvals or exemptions, in order that the Company may thereafter validly and legally issue as fully paid
and nonassessable Common Shares (and any other securities, if applicable) that the Holder is entitled to receive upon exercise of this
Warrant pursuant to this Section 4.
(l) Income
Tax Adjustment. The Company may (but is not required to) make such decreases in the Exercise Price and increases in the Warrant
Share Number, in addition to those required by Sections 4(a) through 4(g), as the Board of Directors determines is consistent with
the principles of Treasury Regulation Section 1.305-3 and considers to be advisable to avoid or diminish any U.S. federal income
tax to holders of Common Stock or rights to purchase Common Stock in connection with a dividend or distribution of shares (or rights to
acquire shares) or any similar event treated as such for U.S. federal income tax purposes.
5. Taxes;
HSR.
(a) Taxes.
The Company shall be responsible for paying all present or future stamp, court or documentary, intangible, recording, filing or similar
taxes (“Transfer Taxes”) that arise from the issuance of this Warrant and any issuance of the Warrant Shares under
this Warrant.
(b) HSR
Submissions. If the Holder determines in good faith that the exercise of this Warrant is subject to notification under the Hart-Scott
Rodino Antitrust Improvements Act of 1976, as amended, and the related rules and regulations promulgated thereunder (collectively,
the “HSR Act”), each of the Company and the Holder agrees to (i) cooperate with the other party in the other party’s
preparing and making such submission and any responses to inquiries of the Federal Trade Commission (“FTC”) and/or
Department of Justice (“DOJ”); and (ii) prepare and make any submission required to be filed by the Company or
the Holder, as applicable, under the HSR Act and respond to inquiries of the FTC and DOJ in connection therewith. The Company shall pay,
or reimburse the Holder for, the costs of any required filing fees for any submissions under the HSR Act. Where the Holder notifies the
Company that, pursuant to this section, the Holder has determined that an HSR filing is required, the Company shall not issue Warrant
Shares until the expiration or early termination of the applicable waiting period under the HSR Act.
18
6. Dispute
Resolution. In the case of a dispute between the Company and the Holder as to the determination of the Exercise Price, Market Price,
Volume Weighted Average Price, Major Transaction Consideration or Major Transaction Warrant Share Number, the Company shall issue, or
instruct the Transfer Agent to issue, as applicable, to the Holder the number of Warrant Shares that is not disputed and shall transmit
an explanation of the disputed determinations or arithmetic calculations to the Holder via email within two (2) Business Days of
receipt or deemed receipt of the Holder’s Exercise Form or other date of determination. If the Holder and the Company are unable
to agree upon the determination of the Exercise Price, Market Price, Volume Weighted Average Price, Major Transaction Consideration or
Major Transaction Warrant Share Number within one (1) Business Day of such disputed determination or arithmetic calculation being
transmitted to the Holder, then the Company shall promptly (and in any event within two (2) Business Days) submit via email (A) the
disputed determination of the Exercise Price, Market Price, Volume Weighted Average Price, Major Transaction Consideration or Major Transaction
Warrant Share Number, to an independent, reputable investment banking firm selected by the Holder and subject to the approval of the Company
(such consent not to be unreasonably withheld, conditioned or delayed), or (B) in the case of a dispute as to the arithmetic calculation
of the Exercise Price or the arithmetic calculation of the Volume Weighted Average Price, Major Transaction Consideration or Major Transaction
Warrant Share Number, to an independent registered public accounting firm selected by the Holder and, if not the Company’s auditors,
subject to the approval of the Company (such consent not to be unreasonably withheld, conditioned or delayed), as the case may be. The
Company shall direct the investment bank or the accounting firm, as the case may be, to perform the determinations or calculations and
notify the Company and the Holder of the results no later than two (2) Business Days from the time it receives the disputed determinations
or calculations. Such investment bank’s or accounting firm’s determination or calculation, as the case may be, shall be binding
upon all parties absent manifest error. Notwithstanding anything herein to the contrary, any such final determination in respect of a
dispute in connection with a Major Transaction in which the Company is not the surviving parent entity, shall be made prior to the occurrence
of such Major Transaction.
7. Frustration
of Purpose. The Company hereby covenants and agrees that the Company will not, by amendment of its certificate of incorporation, bylaws
or through any reorganization, transfer of assets, consolidation, merger, scheme of arrangement, dissolution, issuance or sale of securities,
or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, and will at all
times in good faith carry out all the provisions of this Warrant and take all action as may be required to protect the rights of the Holder.
Without limiting the generality of the foregoing, the Company (i) shall not increase the par value of any Common Shares receivable
upon the exercise of this Warrant above the Exercise Price then in effect, and (ii) shall take all such actions as may be necessary
or appropriate in order that the Company may validly and legally issue fully paid and nonassessable Common Shares upon the exercise of
this Warrant.
8. Definitions.
For the purposes of this Warrant, the following terms have the following meanings:
“Action”
means any legal, regulatory or administrative proceeding, suit, investigation, arbitration or action.
“Adjustment Certificate”
has the meaning specified in Section 4(i) hereof.
“Asset Sale”
means a transaction described in clause (B) of the definition of “Major Transaction.”
“Beneficial Ownership
Limitation” has the meaning specified in Section 2(j) hereof.
“Black Scholes Value”
means the value of this Warrant or applicable portion thereof as determined by use of the Black-Scholes Option Pricing Model using the
applicable criteria set forth on Schedule A hereto.
19
“Bloomberg”
means Bloomberg Financial Markets or an equivalent, reliable reporting service mutually acceptable to and hereafter designated by the
Required Holders and the Company.
“Business Day”
means any day, except a Saturday, Sunday or legal holiday, on which banking institutions in the city of New York, New York are authorized
or obligated by law or executive order to close; provided, however, for clarification, bank institutions shall not be deemed
to be authorized or obligated by law or executive order to remain closed due to “stay at home,” “shelter-in-place,”
“non-essential employee” or any other similar orders or restrictions or the closure of any physical branch locations at the
direction of any governmental authority so long as the electronic funds transfer systems (including for wire transfers) of commercial
banks in the City of New York generally are open for use by customers on such day.
“Cash Exercise”
has the meaning specified in Section 2(b) hereof.
“Cashless Exercise”
has the meaning specified in Section 2(c) hereof.
“Closing Date Term
Loans” means the “Closing Date Term Loan” as defined in the Subordinated Credit Agreement.
“Closing Price”
means, for any security as of any Trading Day, the closing (last sale) price per share for such security on its Principal Market on such
Trading Day (at the end of regular trading hours on such Principal Market), as reported by Bloomberg, or if no closing price per share
is reported for such security by Bloomberg, the average of the last bid and last ask price (or if more than one in either case, the average
of the average last bid and average last ask prices) per share for such security on such Trading Day as reported in the composite transactions
for the principal U.S. national or regional securities exchange on which the Common Stock is traded. If such security is not listed for
trading on a U.S. national or regional securities exchange on the relevant Trading Day, then the Closing Price for such security will
be the average of the mid-point of the last bid and last ask prices per share for such security in the over-the-counter market on the
relevant Trading Day as reported by OTC Markets Group or similar organization. If the Closing Price cannot be calculated for a security
on such date on any of the foregoing bases, the Closing Price of such security on such date shall be the fair market value per share of
such security as mutually determined in good faith by the Board of Directors of the Company and the Required Holders.
“Common Shares”
means shares of Common Stock.
“Common Stock”
has the meaning specified in the preamble hereof.
“Company”
has the meaning specified in the preamble hereof.
“Delivery Failure”
means the Company fails to deliver Warrant Shares to Holder within any applicable Delivery Period (other than due to the Beneficial Ownership
Limitation).
“Delivery Period”
means, in respect of each exercise of the Holder’s purchase right hereunder, the period commencing on the delivery of an Exercise
Form in respect of such exercise and ending on the deadline for delivery of the applicable Warrant Shares as set forth in Section 2(d).
20
“DTC” has
the meaning specified in Section 2(d) hereof.
“DWAC”
has the meaning specified in Section 2(d) hereof.
“Event of Default”
means the occurrence of any of the following: (i) a Registration Failure occurs and remains uncured for a period of more than thirty
(30) days; (ii) a Public Reporting Failure occurs and remains uncured for a period of more than thirty (30) days; (ii) a Delivery
Failure occurs and remains uncured for a period of more than ten (10) Business Days; or at any time, the Company announces or states
in writing that it will not honor its obligations to issue and deliver Common Shares to Holder upon exercise by Holder of this Warrant;
(iii) a Legend Removal Failure occurs and remains uncured for a period of ten (10) days; (iv) a Transfer Delivery Failure
occurs and remains uncured for a period of twenty (20) days; (v) the Company breaches any of its obligations under Section 4(e) hereof
in respect of a Major Transaction; (vi) the Company commits any other material breach of its obligation hereunder or under the Registration
Rights Agreement and such breach remains uncured for a period of more than thirty (30) days following notice of such breach; (vii) the
liquidation, bankruptcy, insolvency, dissolution or winding up (or the occurrence of any analogous proceeding) of the Company; (viii) the
Common Shares cease to be listed, traded or publicly quoted on the Nasdaq Global Market and are not promptly re-listed on the New York
Stock Exchange, the NYSE American, the NASDAQ Global Market, the NASDAQ Global Select Market or the NASDAQ Capital Market (or, in each
case, any successor thereto); or (ix) the Common Stock ceases to be registered under Section 12 of the Exchange Act.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended.
“Exchange Agreement”
has the meaning specified in the preamble hereof.
“Exercise Date”
has the meaning specified in Section 2(a) hereof.
“Exercise Form”
has the meaning specified in Section 2(a) hereof.
“Exercise Price”
means $0.10 per share, subject to adjustment as provided herein.
“Holder”
means the Person or Persons who shall from time to time own this Warrant.
“Independent Financial
Expert” has the meaning specified in Section 4(i) hereof.
“Legend Removal Failure”
means the Company fails to issue this Warrant and/or Warrant Shares without a restrictive legend, or fails to remove a restrictive legend,
when and as required under Section 2(f) hereof.
“Major Transaction”
means any of the following events:
(A) a
consolidation, merger, exchange of shares, tender or exchange offer, recapitalization, reorganization, business combination, purchase
or sale of shares or other similar event, (1) following which the holders of Common Stock, or of the voting power of voting stock,
immediately preceding such consolidation, merger, exchange, recapitalization, reorganization, business combination, sale of shares or
other event either (a) no longer own a majority of the outstanding shares of Common Stock or of the shares or voting power of voting
stock of the Company or (b) no longer have the ability to elect a majority of the Board of Directors of the Company, or (2) as
a result of which the Common Stock shall be changed into (or the holders of the shares of Common Stock become entitled to receive) the
same or a different number of shares of the same or another class or classes of stock or securities of the Company or of another entity
(other than (i) to the extent the shares of Common Stock are changed or exchanged solely to reflect a change in the Company’s
jurisdiction of incorporation, (ii) any Stock Event or (iii) solely a change in par value of the Common Stock) (a “Change
in Control Transaction”);
21
(B) the
sale, lease or transfer or other conveyance (including, for the avoidance of doubt, by way of an exclusive license), in one transaction
or a series of related transactions of (i) all or substantially all of the consolidated assets of the Company (including, for the
avoidance of doubt, all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole) to any Person other
than one or more of the Company’s wholly-owned Subsidiaries or (ii) assets of the Company (including, for the avoidance of
doubt, assets of the Company and its Subsidiaries, taken as a whole) to any Person other than one or more of the Company’s wholly-owned
Subsidiaries for a purchase price equal to more than 50% of the Enterprise Value (as defined below) of the Company. For purposes of this
clause (B), “Enterprise Value” shall mean (I) the product of (x) the number of issued and outstanding shares
of Common Stock on the date the Company first delivers (or by which it is first obligated to deliver) the Major Transaction/Organic Change
Notice multiplied by (y) the Closing Price of the Common Stock on such date plus (II) the aggregate principal amount of the
Company’s and its consolidated subsidiaries’ debt as shown on the latest consolidated financial statements of the Company
and its subsidiaries filed with the Commission (the “Current Financial Statements”), plus (III) if applicable,
the aggregate liquidation preference of each class of the Company’s outstanding preferred stock, if any, less (III) the aggregate
amount of cash and cash equivalents of the Company and its consolidated subsidiaries, as shown on the Current Financial Statements;
(C) the stockholders
of the Company approve any plan or proposal for the liquidation, dissolution or winding-up of the Company;
(D) a “person”
or “group” within the meaning of Section 13(d) of the Exchange Act, other than the Company, the Holder or its Rule 144
Affiliates files any schedule, form or report under the Exchange Act disclosing that such person or group has become the direct or indirect
“beneficial owner” as defined in Rule 13d-3 under the Exchange Act of the Company’s Stock representing beneficial
ownership of more than 50% of the outstanding shares of Common Stock or of the shares or voting power of the Company’s voting stock;
provided, that no person or group shall be deemed to be the beneficial owner of any securities tendered pursuant to a tender offer or
exchange offer made by or on behalf of such “person” or “group” until such tendered securities are accepted for
purchase or exchange under such offer;
(E) the Common Stock
ceases to be listed on any Eligible Market on which it is then listed and is not immediately re-listed on another Eligible Market. For
the purposes of this clause (E), “Eligible Market” means the New York Stock Exchange, the NYSE American, The Nasdaq
Capital Market, The Nasdaq Global Market or The Nasdaq Global Select Market (or, in each case, any successor thereto); or
22
(F) the Common Stock
ceases to be registered under Section 12 of the Exchange Act.
“Major Transaction
Consideration” means (a) the amount of cash, property and other assets and the number of securities or other property of
the Successor Entity, the Company or other entity that would be issuable in the Major Transaction, in respect of a number of shares equal
to the Major Transaction Warrant Share Number (assuming, for these purposes, that such shares had been issued and outstanding immediately
prior to consummation of such Major Transaction) or (b) if none of the foregoing applies, an amount in cash equal to the Black-Scholes
Value of the unexercised portion of this Warrant. If holders of Common Shares are given any choice as to the securities, cash or property
to be received in a Major Transaction, then the Holder shall be given the same choice as to the Major Transaction Consideration it receives
upon a Major Transaction Repurchase (without giving effect to the Beneficial Ownership Limitation or any other limitation on exercise
herein, and assuming the exercise hereof for cash).
“Major Transaction
Warrant Share Number” means an amount equal to the Black-Scholes Value of the unexercised portion of this Warrant determined
as of the date the applicable Major Transaction is consummated or otherwise occurs, divided by the Closing Price of the Common Stock on
the principal securities exchange or other securities market on which the Common Stock is then traded on the Trading Day immediately preceding
the date on which the applicable Major Transaction is consummated or otherwise occurs.
“Market Price”
means, with respect to a share of Common Stock or any other security, on any given day, the arithmetic average of the Volume Weighted
Average Price (as defined below) of the Company’s Common Stock or such security on each of the five (5) consecutive Trading
Days ending immediately prior to the Exercise Date or other date of determination (or, for the avoidance of doubt, for purposes of the
determination of the Market Price in the case of an exercise of this Warrant, or any other event, occurring on a Trading Date after the
end of regular trading hours on the applicable exchange or trading market, ending on such Exercise Date or other date of determination).
In the event that a Stock Event is consummated during any period for which the arithmetic average of the Volume Weighted Average Prices
is to be determined, the Volume Weighted Average Price for all Trading Days during such period prior to the effectiveness of the Stock
Event shall be appropriately adjusted to reflect such Stock Event.
“Objection Notice”
has the meaning specified in Section 4(i) hereof.
“Organic Change”
means any merger, consolidation, business combination, recapitalization, reorganization, reclassification, spin-off or other transaction,
other than a Major Transaction, in each case, that is effected in such a way that the outstanding Common Shares are converted into, are
exchanged for or become the right to receive (either directly or upon subsequent liquidation) cash, securities or other property.
“Original Issue Date”
means the original issue date included on the cover page of this Warrant.
“Person”
means an individual, corporation, limited liability company, partnership, joint venture, association, trust, unincorporated organization
or any other entity.
23
“Principal Market”
means, with respect to the Common Stock, the principal Eligible Market on which the Common Stock is listed, and with respect to any other
security, the principal securities exchange or trading market for such security.
“Pro Rata Repurchase”
means any purchase of shares of Common Stock by the Company or any subsidiary thereof pursuant to any tender offer or exchange offer subject
to Section 13(e) of the Exchange Act (other than solely pursuant to an odd-lot tender offer pursuant to Rule 13e-4(h)(5) under
the Exchange Act); provided, however, that, for the avoidance of doubt, “Pro Rata Repurchase” shall not include
any purchase of shares by the Company or any subsidiary thereof made in accordance with the requirements of Rule 10b-18 as in effect
under the Exchange Act.
“Public Reporting
Failure” means the failure of the Company to file with the Commission in a timely manner (giving effect to any extensions pursuant
to Rule 12b-25 under the Exchange Act) all reports and other materials required to be filed by the Company by Section 13 or
15(d) of the Exchange Act, as applicable (provided, that the failure to file Current Reports on Form 8-K shall not be deemed
a Public Reporting Failure to the extent that Rule 144 remains available for the resale of the Warrant Shares).
“Registration Failure”
means the failure of the Company to use its reasonable best efforts to (A) obtain effectiveness with the SEC in respect of any Shelf
Registration pursuant to the Registration Rights Agreement, or (B) keep such Shelf Registration current, effective and available
for the resale of the Registrable Securities (including, as applicable, by amending or supplementing such Shelf Registration, as required
pursuant to the Registration Rights Agreement.
“Registration Rights
Agreement” means that certain Registration Rights Agreement, dated as of March 3, 2025, among the Company, and the Investors
(as defined therein) from time to time signatory thereto, and, following the Closing, that certain Registration Rights Agreement, dated
as of the date hereof, among the Company, and the Investors (as defined therein) from time to time signatory thereto, in each case as
may be amended, restated, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms thereof.
“Required
Holders” means the Holders holding a majority in interest of the Warrants.
“Rule 144 Affiliate”
means, with respect to any Person as of the applicable time of determination, that such Person is not as of such time a “person”
that is an “affiliate” of the Company within the meaning of Rule 144.
“SEC”
means the U.S. Securities and Exchange Commission.
“Securities Act”
means the Securities Act of 1933, as amended.
“Standard Settlement
Period” means the standard settlement period, expressed in a number of Trading Days, on
the principal securities exchange or securities market on which the Common Stock is then traded as in effect on the date of delivery of
the applicable Exercise Form.
“Subordinated Credit
Agreement” has the meaning specified in the preamble hereof.
24
“Successor Major
Transaction” means a Change in Control Transaction in which the outstanding shares of Common Stock are converted into the right
to receive cash, securities of another entity and/or other assets or an Asset Sale.
“Term”
has the meaning specified in Section 1 hereof.
“Trading Day”
means, in respect of any security, any day on which trading of such security occurs on its Principal Market. If the Common Shares are
not so listed or traded, then “Trading Day” means a Business Day.
“Transfer Delivery
Failure” means the Company has failed to deliver a Warrant within any applicable Transfer Delivery Period.
“Unrestricted Conditions”
has the meaning specified in Section 2(f)(ii) hereof.
“Vesting Date”
has the meaning specified in Section 1(b) hereof.
“Volume Weighted
Average Price” means, with respect to a share of Common Stock or any other security as of any date, the volume weighted average
sale price on the principal United States exchange or market on which the Common Stock or such security is then being traded as reported
by, or based upon data reported by, Bloomberg, or, if no volume weighted average sale price is reported for such security, then the last
closing trade price of such security as reported by Bloomberg, or, if no last closing trade price is reported for such security by Bloomberg,
the average of the bid prices of any market makers for such security on the OTC Bulletin Board, the OTCQX Market, the OTCQB Market or
Pink Open Market of OTC Markets Group (or, in each case, any successor to such market).
“Warrant”
means this Warrant and any other warrants of like tenor issued in substitution or exchange for any thereof pursuant to the provisions
of Section 2(d) hereof.
“Warrant Share Number”
means [•]2, subject to adjustment as set forth herein, including reduction for each Common Share as to which this Warrant has been
exercised (whether pursuant to a Cash Exercise or a Cashless Exercise) hereunder (subject to the Company’s compliance with its
obligations with respect to each such exercise under Section 2 hereof).
“Warrant Shares”
has the meaning set forth in the preamble.
“Warrants”
means, collectively, this Warrant and each other warrant issued pursuant to the Subordinated Credit Agreement as described in the preamble
hereof and any Warrants issued in exchange, transfer or replacement hereof or thereof, as any of the foregoing may be amended, restated,
supplemented or otherwise modified from time.
9. Amendment
and Waiver. Any term, covenant, agreement or condition in this Warrant may be amended, or compliance therewith may be waived (either
generally or in a particular instance and either retroactively or prospectively), by a written instrument or written instruments executed
by the Company and the Holder. No consideration shall be offered or paid to any Person to amend or consent to a waiver or modification
of any provision of any of this Warrant, unless the same consideration (other than the reimbursement of legal fees) also is ratably offered
to the holders of all other Warrants.
2 In the aggregate, Magnetar funds will receive 500,000 warrants.
White Hat will receive 125,000 warrants.
25
10. Governing
Law; Jurisdiction; Specific Performance. This Warrant and all matters concerning the construction, validity, enforcement and interpretation
hereof or otherwise relating hereto shall be governed by, and construed in accordance with, the internal laws of the State of New York,
without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction)
that would cause the application of laws of any jurisdiction other than those of the State of New York. All Actions arising out of or
relating to this Warrant shall be heard and determined in the courts of the State of New York or the courts of the United States located
in the Borough of Manhattan, New York City, New York, and the parties hereto hereby irrevocably submit to the exclusive jurisdiction and
venue of such courts in any such Action and irrevocably waive the defense of an inconvenient forum or lack of jurisdiction to the maintenance
of any such Action. The consents to jurisdiction and venue set forth in this Section 10 shall not constitute general consents to
service of process in the State of New York and shall have no effect for any purpose except as provided in this paragraph and shall not
be deemed to confer rights on any Person other than the parties hereto. Each party hereto agrees that service of process upon such party
in any Action arising out of or relating to this Warrant shall be effective if notice is given by overnight courier at the address set
forth or referred to in Section 11 of this Warrant. The parties hereto agree that a final judgment in any such Action shall be conclusive
and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable law; provided, however,
that nothing in the foregoing shall restrict any party’s rights to seek any post-judgment relief regarding, or any appeal from,
a final trial court judgment. The parties hereto agree that irreparable damage for which monetary relief, even if available, would not
be an adequate remedy, would occur in the event that the parties hereto do not perform the provisions of this Warrant in accordance with
its specified terms or otherwise breach such provisions. Accordingly, the parties acknowledge and agree that the parties shall be entitled
to an injunction or injunctions, specific performance or other equitable relief to prevent breaches of this Warrant and to enforce specifically
the terms and provisions hereof in the courts without proof of damages or otherwise, this being in addition to any other remedy to which
they are entitled under this Warrant, the Subordinated Credit Agreement and this right of specific enforcement is an integral part of
the terms of this Warrant. The parties agree not to assert that a remedy of specific enforcement is unenforceable, invalid, contrary to
law or inequitable for any reason, and agree not to assert that a remedy of monetary damages would provide an adequate remedy or that
the parties otherwise have an adequate remedy at law. The parties acknowledge and agree that any party shall not be required to provide
any bond or other security in connection with its pursuit of an injunction or injunctions to prevent breaches of this Warrant to enforce
specifically the terms and provisions hereof. The remedies provided in this Warrant shall be cumulative and in addition to all other remedies
available under this Warrant, the Subordinated Credit Agreement, at law or in equity (including a decree of specific performance and/or
other injunctive relief).
26
11. Notices.
All notices, requests, claims, demands and other communications under this Warrant shall be in writing and shall be given or made (and
shall be deemed to have been duly given or made upon receipt) by delivery in person, by overnight courier service, by email, or by registered
or certified mail (postage prepaid, return receipt requested) to the respective parties hereto at the following respective addresses (or
at such other address for a party hereto as shall be specified in a notice given in accordance with this Section 11):
(a) If
to the Holder to the address for the notice to the Holder pursuant to the Exchange Agreement, or at such other address or contact information
delivered by the Holder to the Company in writing.
(b) If
to the Company:
Comtech Telecommunications Corp.
305 N 54th Street
Chandler, Arizona 85226
Attn: Michael A. Bondi, Chief Financial Officer
E-mail: Michael.Bondi@comtech.com
with a copy to (which copy alone shall not constitute notice):
Norton Rose Fulbright US LLP
1301 Avenue of the Americas
New York, New York
10019-6022
Attention: Steven I. Suzzan
E-mail: steven.suzzan@nortonrosefulbright.com
In connection with any exercise or assignment
of this Warrant, no ink-original Exercise Form or Assignment Form, as applicable, shall be required, nor shall any medallion guarantee
(or other type of guarantee or notarization) of any Exercise Form or Assignment Form be required.
12. Successors
and Assigns. This Warrant and the rights evidenced hereby shall inure to the benefit of and be binding upon the Company and the Holder
and their respective successors and permitted assigns (subject to Section 2(e) with respect to the Holder); provided
that the Company shall not assign its obligations under this Warrant except to a Successor Entity in connection with a Successor Major
Transaction as provided in Section 4(e).
13. Modification
and Severability. The provisions of this Warrant will be deemed severable and the invalidity or unenforceability of any provision
will not affect the validity or enforceability of any other provision hereof. To the fullest extent permitted by law, if any provision
of this Warrant, or the application thereof to any Person or circumstance, is invalid or unenforceable, (a) a suitable and equitable
provision will be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid
or unenforceable provision, and (b) the remainder of this Warrant and the application of such provision to other Persons, entities
or circumstances will not be affected by such invalidity or unenforceability.
27
14. Interpretation.
When a reference is made in this Warrant to a Section, such reference shall be to a Section of this Warrant unless otherwise indicated.
The headings contained in this Warrant are for reference purposes only and shall not affect in any way the meaning or interpretation of
this Warrant. Whenever the words “include,” “includes” or “including” are used in this Warrant, they
shall be deemed to be followed by the words “without limitation.” The words “hereof,” “herein” and
“hereunder” and words of similar import when used in this Warrant shall refer to this Warrant as a whole and not to any particular
provision of this Warrant unless the context requires otherwise. The words “date hereof’ when used in this Warrant shall refer
to the date of this Warrant. The terms “or,” “any” and “either” are not exclusive. The word “extent”
in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean
simply “if.” The word “will” shall be construed to have the same meaning and effect as the word “shall.”
All terms defined in this Warrant shall have the defined meanings when used in any document made or delivered pursuant hereto unless otherwise
defined therein. The definitions contained in this Warrant are applicable to the singular as well as the plural forms of such terms and
to the masculine as well as to the feminine and neuter genders of such term. Any agreement, instrument or statute defined or referred
to herein or in any agreement or instrument that is referred to herein means such agreement, instrument or statute as from time to time
amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes)
by succession of comparable successor statutes and references to all attachments thereto and instruments incorporated therein. Unless
otherwise specifically indicated, all references to “dollars” or “$” shall refer to, and all payments hereunder
shall be made in, the lawful money of the United States. References to a Person are also to its successors and permitted assigns. When
calculating the period of time between which, within which or following which any act is to be done or step taken pursuant to this Warrant,
the date that is the reference date in calculating such period shall be excluded (and, unless otherwise required by law, if the last day
of such period is not a Business Day, the period in question shall end on the next succeeding Business Day).
15. Withholding.
(a) On
or prior to the Original Issue Date (or in the case of any transfer, the date such transferee becomes the Holder), and thereinafter upon
reasonable request or as required under applicable laws, to the extent permitted by applicable laws, the Holder shall deliver to the Company
tax forms or other documentation (including any applicable Internal Revenue Service Form W-9) reasonably satisfactory to the Company
to establish an exemption from, or a reduction in the rate of, U.S. federal withholding tax that may apply to any payment for dividends
or any constructive dividend under Section 305(c) of the Code.
(b) Notwithstanding
anything to the contrary, any Holder that is not a “United States Person” (as defined in Section 7701(a)(30) of the Code)
(a “non-U.S. Holder”) agrees that, if such Holder is deemed to have received a distribution subject to U.S. federal
income tax under Section 305 of the Code as a result of an adjustment or the non-occurrence of an adjustment to the Exercise Price
or Warrant Share Number, then (i) the Company may, at its option, withhold or set off (or cause to be withheld or set off) any applicable
withholding taxes on behalf of such Holder against payments or deliveries under the Warrant, and (ii) if the Company pays any such
withholding taxes on behalf of such Holder, then the Company may, at its option, withhold from or set off such payments against payments
of cash or the delivery of the Warrant Shares or other consideration under the Warrant.
28
(c) The
Company shall notify, or shall cause to be notified, the applicable non-U.S. Holder of its intention to make any such withholding or deduction
the Company is required to make, as determined in good faith by the Company, hereunder reasonably in advance of doing so, and shall reasonably
consult with the Holder regarding the amount and imposition of any such withholding or deduction and use commercially reasonable efforts
to assist the Holder with claiming any exemption or reduction from such withholding or deduction allowable by applicable laws. The Company
shall provide, or shall cause to be provided, a receipt or other evidence of payment of any such taxes deducted or withheld to such non-U.S.
Holder within 30 days after making any deduction or withholding of such Taxes.
16. Inconsistent
Agreements. The Company shall not, on or after the date hereof, enter into any agreement with respect to its securities which conflicts
in any material respect with the rights granted to the Holders in this Warrant. The Company represents and warrants to the Holders that
the rights granted hereunder do not in any way conflict in any material respect with the rights granted to holders of the Company’s
securities under any other agreements.
[Signature pages follow]
29
IN WITNESS WHEREOF, the Company
has duly executed this Warrant.
Dated: June 14, 2026.
COMTECH TELECOMMUNICATIONS CORP.
By:
Name:
Title:
30
EXHIBIT A
FORM OF EXERCISE
NOTICE
(To be executed by the registered holder hereof)
Reference is made to the Warrant to Purchase Common
Shares of Comtech Telecommunications Corp. No. W-_ (the “Warrant”).
The undersigned hereby irrevocably exercises the
Warrant with respect to shares of common stock, par value $0.10 per share (the “Common Stock”), of Comtech Telecommunications
Corp., a Delaware corporation (the “Company”).
Check the applicable box:
¨ The undersigned is exercising the Warrant with
respect to [_______] shares of Common Stock pursuant to a Cashless Exercise resulting in a delivery obligation of the Company to the Holder
of [_______] shares of Common Stock, and makes payment of the Exercise Price with respect to such shares in full, all in accordance with
the conditions and provisions of the Warrant applicable to such Cashless Exercise.
¨ The undersigned is exercising the Warrant with
respect to [__________] shares of Common Stock pursuant to a Cash Exercise. [IF APPLICABLE: The undersigned hereby encloses, or has delivered
by wire transfer to an account designated by the Company, $____ as payment of the Exercise Price.]
2. Capitalized
terms used but not otherwise defined in this Exercise Form shall have the meaning ascribed thereto in the Warrant.
Dated: ____________________________
Please issue shares of Common Stock in the following
name and, if applicable, to the following address:
Issue to (print name):
Email Address:
DTC Details (if applicable):
Address for Stock Certificates (if applicable):
1
EXHIBIT B
ASSIGNMENT FORM
(To be executed by the registered holder hereof)
FOR VALUE RECEIVED, the undersigned
hereby sells, assigns and transfers unto the within Warrant and all rights evidenced thereby and does irrevocably constitute and appoint
, attorney, to transfer the said Warrant on the books of the within named corporation.
Dated:
Signature
Address
PARTIAL ASSIGNMENT
(To be executed by the registered holder hereof)
FOR VALUE RECEIVED, the undersigned
hereby sells, assigns and transfers unto the right to purchase Common Shares issuable upon exercise of the attached Warrant, and does
irrevocably constitute and appoint , attorney, to transfer that part of the said Warrant on the books of the within named corporation.
Dated:
Signature
Address
B-1
Schedule A
Black-Scholes Value
Remaining Term
Number of calendar days from date of consummation or occurrence of the Major Transaction or Event of Default until the last date on which this Warrant may be exercised.
Interest Rate
A risk-free interest rate corresponding to the US$ Treasury Yield + 0.50% for a period equal to the Remaining Term.
Cost to Borrow
0%
Volatility
If the first public announcement of the Major Transaction is made at or prior to 4:00 p.m., New York City time, the arithmetic mean of the historical volatility for the 10, 30 and 50 Trading Day periods ending on the day prior to the date of such first public announcement, obtained from the HVT or similar function on Bloomberg. If the first public announcement of the Major Transaction is made after 4:00 p.m., New York City time, the arithmetic mean of the historical volatility for the 10, 30 and 50 Trading Day periods ending on the date of such first public announcement, obtained from the HVT or similar function on Bloomberg.
Stock Price
Major Transaction:
The greatest of (1) the per share closing (last sale) price of
the Common Shares on The Nasdaq Global Market, or, if that is not the principal trading market for the Common Shares, such principal market
on which the Common Shares are traded or listed (the “Closing Market Price”) on the Trading Day immediately preceding
the date on which the Major Transaction is consummated or otherwise occurs, (2) the first Closing Market Price following the first
public announcement of the Major Transaction, and (3) the Closing Market Price as of the date immediately preceding the first public
announcement of the Major Transaction.
Event of Default:
The greatest of (1) the Closing Market Price on the Trading Day
immediately preceding the date on which the Event of Default occurs, (2) the first Closing Market Price following the first public
announcement of the Event of Default, and (3) the Closing Market Price as of the date immediately preceding the first public announcement
of the Event of Default.
B-2
EX-4.2 — EXHIBIT 4.2
EX-4.2
Filename: tm2617923d1_ex4-2.htm · Sequence: 4
Exhibit 4.2
FORM OF
WARRANT
TO PURCHASE
SHARES OF COMMON STOCK
OF
COMTECH TELECOMMUNICATIONS CORP.
Original Issue Date: _______,
__, 202_1
No. W-_
FOR VALUE RECEIVED, the undersigned,
Comtech Telecommunications Corp., a Delaware corporation (together with its successors and assigns, the “Company”),
hereby certifies that [_______] or any transferee, assignee or other subsequent holder hereof (the “Holder”) is entitled
to subscribe for and purchase, at the Exercise Price per share, the Warrant Share Number of duly authorized, validly issued, fully paid
and non-assessable shares of the Company’s common stock, par value $0.10 per share (the “Common Stock”). This
Warrant is issued pursuant to that certain Exchange Agreement, dated as of June 14, 2026, by and among the Company and the entities
listed on Exhibit B of that certain Exchange Agreement (as may be amended, restated, amended and restated, supplemented or
otherwise modified from time to time in accordance with the terms thereof, the “Exchange Agreement”). The Common Shares
(as defined below) issuable hereunder (the “Warrant Shares”) are entitled to the benefits of the Registration Rights
Agreement (as defined below). Capitalized terms used in this Warrant and not otherwise defined herein shall have the respective meanings
specified in Section 8 hereof or, if not specified in Section 8 hereof, the respective meanings ascribed thereto
in the Exchange Agreement, regardless of whether the Exchange Agreement or the Series B-4 Certificate of Designations, as applicable,
remains in effect as of any date of determination.
The number of Warrant Shares and the Exercise Price are subject
to adjustment as provided herein, and all references to “Common Stock” and “Exercise Price” herein shall be deemed
to include any such adjustment or series of adjustments.
1. Term.
The right to subscribe for and purchase Warrant Shares represented hereby commences on the Original Issue Date and shall expire on the
date that is five years and six months following the Original Issue Date (such period being the “Term”).
2. Method
of Exercise; Payment; Issuance of New Warrant; Transfer and Exchange.
(a) Exercise
of Warrant. The purchase rights represented by this Warrant may be exercised in whole or in part at any time and from time
to time during the Term by delivering to the Company (by electronic mail or otherwise in accordance with Section 11) written
notice of such exercise in the form attached hereto as Exhibit A (each, an “Exercise Form”) and the applicable
Exercise Price, which may be satisfied by a Cash Exercise or a Cashless Exercise (as each is defined below), for each Warrant Share as
to which this Warrant is being exercised. The “Exercise Date” in respect of each exercise of this Warrant shall be
defined as the date that the Exercise Form in respect of such exercise is delivered to the Company in accordance with the terms hereof.
In the event that this Warrant has not been exercised in full as of the last Business Day during the Term and the fair market value of
one share of Common Stock on the Exercise Date exceeds the Exercise Price, subject to the Beneficial Ownership Limitation, the Holder
shall be deemed to have exercised the purchase rights represented by this Warrant in full as a Cashless Exercise as of 4:59 p.m. (New
York City time) on such last Business Day (and such last Business Day shall be deemed the Exercise Date for purposes of such exercise).
(b) Cash
Exercise. The Holder may pay the Exercise Price in respect of any Warrant Share(s) in cash (a “Cash Exercise”).
In the case of a Cash Exercise, within one (1) Trading Day (or, if less, the number of Trading Days comprising the Standard Settlement
Period on the Exercise Date) following the Exercise Date as aforesaid, the Holder shall deliver the aggregate Exercise Price for the Warrant
Shares specified in the applicable Exercise Form by wire transfer or cashier’s check drawn on a United States bank.
1 Insert the date of the consummation of the applicable
Asset Sale Put Right or Asset Sale Call Right.
1
(c) Cashless
(Net Issue) Exercise. In lieu of paying the Exercise Price in respect of any Warrant Share(s) in cash, the Holder,
at its option, may exercise this Warrant (in whole or in part) on a cashless basis by making appropriate notation on the applicable Exercise
Form, in which event the Company shall issue to the Holder a number of Warrant Shares computed using the following formula (a “Cashless
Exercise”):
Where:
X
=
the number of the Warrant Shares to be issued to the Holder.
Y
=
the number of Warrant Shares with respect to which the Warrant is exercised.
A
=
the fair market value of one share of Common Stock on the Exercise Date.
B
=
the Exercise Price (as adjusted to the date of such calculation).
For purposes of this Section 2(c),
the “fair market value” of one share of Common Stock on the date of determination shall mean:
(i) if
the Market Price can be calculated in accordance with the definitions of “Market Price” and “Volume Weighted Average
Price,” the Market Price per share of Common Stock as of the Exercise Date; and
(ii) if
the Market Price cannot be calculated in accordance with the definitions of “Market Price” and “Volume Weighted Average
Price,” the fair market value of a share of Common Stock shall be the fair market value of a share of Common Stock as mutually determined
in good faith by the Company and the Holder.
The date of determination for purposes of this
Section 2(c) shall be the date the Exercise Form is delivered by the Holder to the Company.
(d) Issuance
of Warrant Shares and New Warrant. In the event of any exercise of the purchase rights represented by this Warrant in accordance
with the terms hereof, the Warrant Shares issuable upon such exercise shall be delivered by the Company, (i) in the case of an exercise
at a time when any of the Unrestricted Conditions is met as of the Exercise Date in respect of such Warrant Shares, by causing the Company’s
designated transfer agent (“Transfer Agent”) to electronically transmit the Warrant Shares issuable upon such exercise
to the Holder by crediting the account of the Holder’s prime broker with The Depository Trust Company (“DTC”),
through its Deposit/Withdrawal at Custodian (“DWAC”) system, as specified in the relevant Exercise Form, no later than
the later of (x) one (1) Trading Day (or, if less, the number of Trading Days comprising the Standard Settlement Period)
after the relevant Exercise Date; and, (y) in the case of a Cash Exercise, one (1) Trading Day after the date the applicable
aggregate Exercise Price is received by the Company, provided that a delay in delivering the Warrant Shares in accordance with this clause
(i) to the extent it is caused solely by a failure by the Holder or its designee to accept such DWAC transmission shall not be deemed
a breach of this Section 2(d), or (ii) in the case of an exercise at a time when the Warrant Shares issuable upon such
exercise are required to bear a restrictive legend pursuant to Section 2(f)(ii) because none of the Unrestricted Conditions
is met in respect thereof, issue and dispatch by overnight courier to the address as specified in the Exercise Form, a certificate, registered
in the name of the Holder or its designee, for the number of Warrant Shares to which the Holder is entitled pursuant to such exercise,
within two (2) Trading Days after the relevant Exercise Date. Upon the exercise of this Warrant or any part hereof, the Company
shall, at its own cost and expense, take all necessary action, including obtaining and delivering an opinion of counsel, if applicable,
to assure that the Transfer Agent shall transmit to the Holder in accordance with this Section 2(d) the number of Warrant
Shares issuable upon such exercise. The Company warrants that no instructions other than these instructions have been given and, the Company
agrees that no instructions other than these instructions will be given, to the Transfer Agent in respect of the Warrant Shares and the
Company covenants and agrees that it shall cause the Warrant Shares to not contain any legend or be subject to any stop transfer or similar
instruction, if any of the Unrestricted Conditions is met in respect thereof. Upon the delivery of an Exercise Form in accordance
with Section 2(a), the Holder shall be deemed for all purposes to have become the holder of record of the Warrant Shares with
respect to which this Warrant has been exercised, irrespective of the date such Warrant Shares are credited to the Holder’s or its
designee’s DTC account or the date of delivery of the certificates evidencing such Warrant Shares, as the case may be. The Holder
shall not be required to physically surrender this Warrant to the Company, except as provided in Section 2(e) in connection
with a transfer of this Warrant. Execution and delivery of an Exercise Form (i) with respect to a partial exercise shall have
the same effect as cancellation of the original Warrant and issuance of a new Warrant evidencing the right to purchase the remaining number
of Warrant Shares, and (ii) in respect of an exercise of this Warrant in full, shall have the same effect as cancellation of the
original Warrant. The Holder and the Company shall maintain records showing the number of Warrant Shares purchased and the remaining number
of Warrant Shares. The Holder and any assignee of the Holder, by acceptance of this Warrant, acknowledges and agrees that, by reason of
the provisions of this paragraph, following the purchase of a portion of the Warrant Shares hereunder, the Warrant Share Number (and,
therefore, the number of Warrant Shares available for purchase hereunder) at any given time may be less than the amount stated herein.
2
(e) Transferability
of Warrant. Subject to Section 2(f)(iii), this Warrant and all rights hereunder are transferable, in whole
or in part, by the Holder without charge to the Holder, upon surrender of this Warrant to the Company at its then principal executive
offices with a properly completed and duly executed Assignment Form in the form attached hereto as Exhibit B. Within
two (2) Trading Days of such surrender and delivery (the “Transfer Delivery Period”), the Company shall execute
and deliver a new Warrant or Warrants in the name of the assignee or assignees and in the denominations specified in such instrument of
assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant, if any, not so assigned and this Warrant
shall promptly thereafter be cancelled. Notwithstanding anything herein to the contrary, this Warrant, if properly assigned in accordance
herewith, may be exercised by a new Holder for the purchase of Warrant Shares immediately upon such assignment without having a new Warrant
issued. The Company shall pay any Transfer Taxes as such term is defined in Section 5(a) (below) imposed in connection
with such transfer or assignment (if any).
(f) Restrictive
Legend.
(i) The
Holder understands that until such time as the Warrant Shares have been registered under the Securities Act or otherwise may be sold pursuant
to Rule 144 or an exemption from registration under the Securities Act without any restriction as to the number of securities as
of a particular date that can then be immediately sold, the Warrant Shares may bear a restrictive legend in substantially the following
form (and a stop-transfer order consistent therewith may be placed against transfer of the certificates for such securities) (the “Securities
Law Legend”):
“THE OFFER AND SALE OF THIS SECURITY
AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), AND THIS SECURITY AND SUCH SHARES MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED EXCEPT (A) PURSUANT
TO A REGISTRATION STATEMENT THAT IS EFFECTIVE UNDER THE SECURITIES ACT; OR (B) PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION
NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. OR GUIDANCE, SUCH AS A SO-CALLED “4(a)(1) AND A HALF SALE.”
NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING
ARRANGEMENT SECURED BY THE SECURITIES.
3
(ii) The
Warrant Shares (and any certificates or electronic book entries evidencing the Warrant Shares) shall not contain or be subject to (and
Holder shall be entitled to removal of) any legend (or stop transfer or similar instruction) restricting the transfer thereof (including
the Securities Law Legend): (A) while a registration statement (including a Shelf Registration, as defined in the Registration Rights
Agreement) covering the sale or resale of such Warrant Shares is effective under the Securities Act and the Holder has undertaken in writing
to conduct all sales of such Warrant Shares pursuant to such registration statement or an exemption from such registration, or (B) if
the Holder provides customary paperwork to the effect that it has sold, or is selling substantially contemporaneously with the delivery
of such paperwork, such securities pursuant to such a registration statement or Rule 144 under the Securities Act, or (C) if
such Warrant Shares are eligible for sale under Rule 144(b)(1) under the Securities Act as set forth in customary, non-affiliate
paperwork provided by the Holder, or (D) if at any time on or after the date hereof the Holder certifies that it is not a Rule 144
Affiliate, and has not been a Rule 144 Affiliate for the preceding three (3) months, and that the Holder’s holding
period for purposes of Rule 144 (including, for the avoidance of doubt, subsection (d)(3)(ii) thereof) is at least six (6) months,
and if such holding period is less than one (1) year, the current public information requirement of Rule 144(b)(1) is then
met, or (E) if such legend is not otherwise required under applicable requirements of the Securities Act (including judicial interpretations
and pronouncements issued by the staff of the SEC) as determined in good faith by counsel to the Company or as set forth in a legal opinion
delivered by a nationally recognized counsel to the Holder (collectively, the “Unrestricted Conditions”). The Company
shall cause its counsel to issue a legal opinion to the Transfer Agent, promptly after the Registration Effective Date, or at such other
time as any of the Unrestricted Conditions has been satisfied, if the Transfer Agent requires such an opinion to effect the issuance of
the Warrant Shares without a restrictive legend or removal of the legend hereunder. If any of the Unrestricted Conditions is met at the
time of issuance of the Warrant Shares then such Warrant Shares shall be issued free of all legends and stop-transfer instructions. The
Company agrees that following the Registration Effective Date or at such other time as any of the Unrestricted Conditions is met or such
legend is otherwise no longer required under this Section 2(f), it will, no later than the earlier of (x) one (1) Trading
Day and (y) the number of Trading Days comprising the Standard Settlement Period following the delivery by the Holder to the Company
or the Transfer Agent of the Warrant Shares issued with a restrictive legend, deliver or cause to be delivered to the Holder or its designee
the Warrant Shares free from all restrictive and other legends (or similar notations) by crediting the account of the Holder’s prime
broker with DTC, through its DWAC system. For purposes hereof, “Registration Effective Date” shall mean the first date
that the first Resale Shelf Registration Statement (as defined in the Registration Right Agreement) covering the Warrant Shares that the
Company is required to file pursuant to the Registration Rights Agreement has been declared effective by the SEC. The Company acknowledges
and agrees that, the Holder shall be deemed to have certified that it is not a Rule 144 Affiliate and has not been a Rule 144
Affiliate for the preceding three (3) months upon each delivery of an Exercise Form, unless the Holder otherwise advises the
Company in writing. For purposes of Rule 144 under the Securities Act and subsection (d)(3)(ii) thereof, it is intended, understood
and acknowledged that this Warrant and the Warrant Shares issuable upon any exercise of this Warrant pursuant to a Cashless Exercise shall
be deemed to have been acquired, and the holding period thereof shall be deemed to have commenced as of [October 18, 2021]2
[January 22, 2024]3 [June 17, 2024]4
[October 17, 2024]5 [March 3, 2025]6.
The Holder, by acceptance hereof, acknowledges and agrees that the removal of any restrictive legends from any securities as set forth
in this Section 2(f)(ii) is predicated upon the Company’s reliance that the Holder will sell such securities pursuant
to either the registration requirements of the Securities Act or an exemption therefrom, and that if such securities are sold pursuant
to a registration statement, they will be sold while such registration statement is effective and available for resales of such securities,
in compliance with the plan of distribution set forth therein.
(iii) The
Holder, by acceptance hereof, covenants that it will not sell or otherwise transfer any Warrants or Warrant Shares except pursuant to
an effective registration statement under the Securities Act or pursuant to an exemption from the registration and prospectus delivery
requirements of the Securities Act.
(g) No
Fractional Shares or Scrip. No fractional shares or scrip representing fractional Warrant Shares shall be issued upon the
exercise of this Warrant. If any fraction of a share of Common Stock would, except for the provisions of this Section 2(g), be issuable
on the exercise of this Warrant, the Holder shall be entitled to receive a cash payment equal to the Market Price of the Common Stock
less the Exercise Price for such fractional share.
(h) Replacement
of Warrant. On receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation
of this Warrant and, in the case of loss, theft or destruction, on delivery of an indemnity agreement reasonably satisfactory in form
and substance to the Company or, in the case of mutilation, on surrender and cancellation of this Warrant, the Company shall execute and
deliver, in lieu of this Warrant, a new Warrant of like tenor and amount.
2 Insert in Warrant issued in exchange for the 2021 Exchange
Shares.
3 Insert in Warrant issued in exchange for the 2024 Exchange
Shares and the January 2024 Additional Shares.
4 Insert in Warrant issued in exchange for the June 2024
Additional Shares.
5 Insert in Warrant issued in exchange for the October
2024 Additional Shares.
6 Insert in Warrant issued in exchange for the March 2025
Additional Shares.
4
(i) No
Rights of Stockholders. Except as otherwise provided herein, including in Section 4(c), the Holder, as such,
shall not be entitled to vote or be otherwise deemed the holder of Common Shares or any other securities of the Company that may at any
time be issuable on the exercise hereof for any purpose, nor shall anything contained herein be construed to confer upon the Holder, as
such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted
to stockholders at any meeting thereof, or to give or withhold consent to any corporate action (whether upon any recapitalization, issuance
of stock, reclassification of stock, change of par value, or change of stock to no par value, consolidation, merger, conveyance, or otherwise)
or to receive notice of meetings.
(j) Holder’s
Exercise Limitations. Notwithstanding anything to the contrary contained in any Section herein, the Company shall
not effect any exercise of this Warrant, and the Holder shall not be entitled to exercise this Warrant for Warrant Shares to the extent
that after giving effect to such exercise such Holder, either alone or as a part of a “group” (within the meaning of Section 13(d)(3) of
the Exchange Act) “beneficially owning” (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act and for purposes
of Section 13 and Section 16 of the Exchange Act) in excess of nine and ninety-nine hundredths percent (9.99%) (the “Beneficial
Ownership Limitation”) of the then outstanding shares of Common Stock, provided, that the Beneficial Ownership Limitation shall
only apply to the extent that the Common Stock is deemed to constitute an “equity security” pursuant to Rule 13d-(i)1
under the Exchange Act. For purposes of this Warrant, in determining the number of outstanding Common Shares, the Holder may rely on the
number of outstanding Common Shares as reflected in (x) the Company’s most recent Quarterly Report on Form 10-Q or Annual
Report on Form 10-K, or any current report filed by the Company with the Commission subsequent thereto, in each case, filed with
the SEC prior to the date hereof, (y) a more recent public announcement by the Company or (z) a written confirmation by the
Company or the Transfer Agent, within two (2) Trading Days following a written request from a Holder, of the number of shares
of Common Stock then outstanding. Upon the written request of the Holder, the Company shall within two (2) Trading Days confirm
in writing or by electronic mail to the Holder the number of Common Shares then outstanding. In any case, the number of outstanding Common
Shares shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by
the Holder and its Rule 144 Affiliates since the date as of which such number of outstanding Common Shares was reported. By written
notice to the Company, the Holder may from time to time increase or decrease the maximum percentage to any other percentage specified
not in excess of 19.99% (the “Maximum Cap”) in such notice; provided that any such increase will not be effective until
the sixty-first (61st) day after such notice is delivered to the Company (such sixty-first (61st) day, the “Effective Date”)
provided further, that (i) the Maximum Cap shall only apply to the extent required by Nasdaq Marketplace Rule 5635(b) (“Rule 5635(b)”)
and if the Maximum Cap is not required pursuant to Rule 5625(b), then, the Warrant held by the Holder shall be exercisable on or
after the Ownership Limitation Increase Effective Date following the delivery of the notice up to any other percentage of outstanding
shares set forth in such notice without regard to the Maximum Cap, and (ii) such Maximum Cap may not be amended or waived absent
Company stockholder approval in accordance with Rule 5635(b). [Notwithstanding the foregoing, any Holder who has acquired or holds
Warrants with the purpose or effect of changing or influencing the control of the Company, or in connection with or as a participant in
any transaction having such purpose or effect, shall not be permitted to increase the Ownership Limitation in excess of 9.99%.]7
For purposes of this Section 2(j), the aggregate number of Common Shares or voting securities beneficially owned by the Holder
and its Rule 144 Affiliates and any other Persons whose beneficial ownership of Common Shares would be aggregated with the Holder’s
for purposes of Section 13(d) of the Exchange Act shall include the Common Shares issuable upon the exercise of this Warrant
with respect to which such determination is being made, but shall exclude the number of Common Shares which would be issuable upon (x) exercise
of the remaining unexercised and non-cancelled portion of this Warrant by the Holder and (y) exercise or conversion of the unexercised,
non-converted or non-cancelled portion of any other securities of the Company that do not have voting power (including, without limitation,
any securities of the Company which would entitle the holder thereof to acquire at any time Common Stock, including, without limitation,
any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable
for, or otherwise entitles the holder thereof to receive, Common Stock), is subject to a limitation on conversion or exercise analogous
to the limitation contained herein and is beneficially owned by the Holder or any of its Rule 144 Affiliates and other Persons whose
beneficial ownership of Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the Exchange
Act. This Section 2(j) shall not limit the number of Common Shares issuable upon exercise of this Warrant for purposes
of determining the amount of securities or other consideration that such Holder may receive in the event of a Major Transaction or an
Organic Change as contemplated in this Warrant.
7 To be inserted only in Warrants to be issued to affiliates
of White Hat Capital Partners LP.
5
(k) Cash
Damages for Failure to Timely Issue Warrant Shares. If by the earlier of (i) one (1) Trading Day and (y) the
number of Trading Days comprising the Standard Settlement Period, in each case, following the delivery by the Holder to the Company or
the Transfer Agent of an Exercise Form (the “Cash Damages Trigger Date”) the Company shall fail to issue and deliver
a certificate to the Holder for, or, if as required by Section 2(d) hereof the Company shall fail to credit the Holder’s
or its designee’s balance account with DTC with, the applicable number of Warrant Shares (in each case, free of any restrictive
legend, provided that any Unrestricted Condition is satisfied), the Company shall pay additional damages to the Holder, in cash, for each
thirty (30) day period after such Cash Damages Trigger Date such exercise is not timely effected in an amount equal to (prorated
for any partial period) one percent (1.00%) of (the product of (I) the number of Warrant Shares not issued and delivered to the Holder
(in each case, free of any restrictive legend, provided, that any Unrestricted Condition is satisfied) or its designee prior to the Cash
Damages Trigger Date and to which the Holder is entitled and (II) the Volume Weighted Average Price of a share of Common Stock on
the last day of the Delivery Period. In addition to any other rights or remedies available to the Holder under this Warrant, the Exchange
Agreement, the Series B-4 Certificate of Designations, or otherwise at law or in equity, at the written election of the Holder made
in the Holder’s sole discretion, if, on or after the last day of the Delivery Period in respect of such Exercise, the Holder or
its brokerage firm purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale
by the Holder of the Warrant Shares that the Holder was entitled to receive upon such exercise (such purchased shares, “Buy-In
Shares”), the Company shall (1) be obligated to promptly pay to the Holder (in addition to all other available remedies
that the Holder may otherwise have), 105% of the amount by which (A) the Holder’s total purchase price (including brokerage
commissions, if any) for such Buy-In Shares exceeds (B) the net proceeds received by the Holder from the sale of a number of shares
equal to up to the number of Warrant Shares such Holder was entitled to receive but had not received on or before the last day of such
Delivery Period date, and (2) at the option of the Holder, either reinstate the portion of this Warrant and equivalent number of
Warrant Shares for which such exercise was not honored (and refund the Exercise Price therefor, to the extent paid by Holder), or deliver
to the Holder the number of Common Shares that would have been issued had the Company timely complied with its exercise and delivery obligations
hereunder. Nothing herein shall limit a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity
including a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver the
Common Shares upon exercise of this Warrant as required pursuant to the terms hereof.
(l) Void
Exercise Form. If for any reason the Holder has not received all of the Warrant Shares (free of any restrictive legend,
provided that any Unrestricted Condition is satisfied) prior to the earlier of (i) one (1) Trading Day and (y) the
number of Trading Days comprising the Standard Settlement Period, in each case, following the delivery by the Holder to the Company or
the Transfer Agent of an Exercise Form, then the Holder, upon written notice to the Company by electronic mail (a “Void
Exercise Notice”), may void its Exercise Form with respect to, and retain or have returned, as the case may be, any portion
of this Warrant with respect to which Warrant Shares have not been delivered pursuant to the Holder’s Exercise Form; provided, that
the voiding of the Holder’s Exercise Form shall not affect the Company’s obligations to make any payments that have accrued
prior to the date of such Void Exercise Notice pursuant to this Section 2(l).
3. Certain
Representations and Agreements. The Company represents, warrants, covenants and agrees:
(a) This
Warrant is, and any Warrant issued in substitution for or replacement of this Warrant shall be, upon issuance, duly authorized and validly
issued.
(b) All
Warrant Shares issuable upon the exercise of, or otherwise pursuant to, this Warrant pursuant to the terms hereof shall be, upon issuance,
and the Company shall take all such actions as may be necessary or appropriate in order that such Warrant Shares are, validly issued,
fully paid and non-assessable, issued without violation of any preemptive or similar rights of any stockholder of the Company, and free
from all taxes, liens and charges. As of the Original Issue Date, the Company has reserved from its authorized and unissued Common Shares,
exclusively for issuance upon exercise of this Warrant, and from and after the Original Issue Date the Company shall at all times reserve
and keep available out of its authorized but unissued Common Shares solely for the purpose of effecting exercises of this Warrant, such
number of Common Shares as shall from time to time be sufficient to effect the exercise of this Warrant in full for cash (without giving
effect to the Beneficial Ownership Limitation or any other limitations on exercise herein or elsewhere); and if at any time the number
of authorized but unissued Common Shares shall not be sufficient to effect the exercise of this Warrant in full, the Company will use
reasonable best efforts to take such corporate action as may be necessary to increase its authorized but unissued Common Shares to such
number of shares as shall be sufficient for such purpose, including, without limitation, calling a special meeting of stockholders and/or
any other relevant corporate body to amend the Company’s charter increasing the authorized share capital of the sufficiently high
to meet the Company’s obligations under this Section 3(b).
6
(c) The
Company shall take all such actions as may be necessary to ensure that all Warrant Shares are issued without violation of any applicable
law or governmental regulation or any requirements of any securities exchange upon which shares of the Company’s capital stock may
be listed at the time of such exercise.
(d) The
Company will use its reasonable best efforts to procure, subject to issuance or notice of issuance, the listing of any Warrant Shares
issuable upon exercise of this Warrant on the principal stock exchange on which the Common Stock is then listed or traded.
(e) The
authorization, execution, delivery and performance by the Company of this Warrant, and the consummation by the Company of the transactions
contemplated hereby, including the issuance of this Warrant and the Warrant Shares do not and will not: (i) violate or result in
the breach of any provision of the Certificate of Incorporation, Bylaws and Series B-4 Certificate of Designations; or (ii) with
such exceptions that have not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse
Effect: (x) violate any provision of, constitute a breach of, or default under, any judgment, order, writ, or decree applicable to
the Company or any of its Subsidiaries or any material contract, mortgage or credit agreement to which the Company or any of its Subsidiaries
is a party; (y) violate any provision of, constitute a breach of, or default under, any applicable state, federal or local law, rule or
regulation; or (z) result in the creation of any liens, pledges, mortgages, security interests or other encumbrances or charges of
any kind upon any assets of the Company or any of its Subsidiaries or the suspension, revocation or forfeiture of any franchise, permit
or license granted by a governmental authority to the Company or any of its Subsidiaries, other than liens under federal or state securities
laws.
(f) No
shareholder approval is required pursuant to the rules of the Nasdaq Stock Market in connection with the issuance of this Warrant
or the Warrant Shares. The Company has taken all appropriate actions so that the restrictions on business combinations contained in Section 203
of the DGCL will not apply with respect to or as a result of the issuance of this Warrant (or the Warrant Shares) to the Holder or the
transfer thereof, without any further action required on the part of the stockholders of the Company or the Board of Directors.
(g) No
consent, approval or authorization of, or filing with, any court or governmental authority is or will be required on the part of the Company
in connection with the issuance of this Warrant and the Warrant Shares, except for those which have already been made or granted, including
the approval of the listing of the Warrant Shares with the Nasdaq Stock Market.
4. Adjustments
and Other Rights. The Exercise Price and Warrant Share Number shall be subject to adjustment from time to time as follows;
provided that no single event shall cause an adjustment or distribution under more than one subsection of this Section 4 so
as to result in duplication.
(a) Degressive
Issuance. The Exercise Price shall be adjusted to the same extent as the Conversion Price (as defined in the Series B-4
Certificate of Designations) is or would be adjusted pursuant to Section 10(f)(i)(3) under the Series B-4 Certificate of
Designations as a result of a Degressive Issuance (as defined in the Series B-4 Certificate of Designations), as applied mutatis
mutandis to the terms hereof (and regardless of whether the Series B-4 Certificate of Designations remains in effect).
(b) Stock
Splits, Subdivisions, Reclassifications or Combinations. If the Company shall at any time or from time to time (i) pay
or make a dividend or make a distribution on its Common Stock in Common Shares, (ii) split, subdivide or reclassify the outstanding
Common Shares into a greater number of shares or (iii) combine or reclassify the outstanding Common Shares into a smaller number
of shares (each of the transactions described in clauses (i)-(iii), a “Stock Event”), the Warrant Share Number
at the time of the record date for such dividend or distribution or the effective date of such split, subdivision, combination or reclassification
shall be proportionately adjusted so that the Holder immediately after such record date or effective date, as the case may be, shall be
entitled to purchase the number of Common Shares which such Holder would have owned or been entitled to receive in respect of the Common
Shares subject to this Warrant after such date had such Holder held a number of Common Shares equal to the Warrant Share Number immediately
prior to such record date or effective date, as the case may be. In the event of such adjustment, the Exercise Price in effect at the
time of the record date for such dividend or distribution or the effective date of such split, subdivision, combination or reclassification
shall be immediately adjusted to the number obtained by dividing (x) the product of (1) the Warrant Share Number before the
adjustment determined pursuant to the immediately preceding sentence and (2) the Exercise Price in effect immediately prior to the
record or effective date, as the case may be, for the dividend, distribution, split, subdivision, combination or reclassification giving
rise to such adjustment by (y) the new Warrant Share Number determined pursuant to the immediately preceding sentence. If any Stock
Event is declared or announced, but not so paid or made, the Exercise Price and the Warrant Share Number shall again be adjusted to be
the Exercise Price and Warrant Share Number that would then be in effect had such Stock Event not been declared or announced.
7
(c) Distributions.
Notwithstanding anything to the contrary contained herein (including, for the avoidance of doubt, Section 2(j)), the Holder,
as the holder of this Warrant, shall be entitled to receive, and shall be paid by the Company, any dividend paid or distribution of any
kind made to the holders of Common Stock, other than a dividend or distribution resulting in an adjustment pursuant to Section 4(b),
to the same extent as if the Holder had exercised this Warrant in full in a Cash Exercise (without regard to the Beneficial Ownership
Limitation or any other limitations on exercise herein or elsewhere and without regard to whether or not a sufficient number of shares
are authorized, reserved and available to effect any such exercise and issuance) and had held such Warrant Shares on the record date for
such dividend or distribution (or, if there is no record date therefor, on the date of such dividend or distribution). Payments or distributions
under this Section 4(c) shall be made concurrently with the dividend or distribution to holders of the Common Stock.
For the avoidance of doubt, if at any time the Company grants, issues or sells any options, convertible securities or rights to purchase
stock, warrants, securities or other property pro rata to the record holders of any class of its capital stock (the “Purchase
Rights”), and such grant, issuance or sale does not result in a dividend or distribution resulting in an adjustment pursuant
to Section 4(b), then the Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate
Purchase Rights that the Holder could have acquired if the Holder had held the number of shares of Common Stock acquirable upon exercise
in full of this Warrant (without regard to the Beneficial Ownership Limitation or any other limitations on exercise herein or elsewhere
and without regard to whether or not a sufficient number of shares are authorized, reserved and available to effect any such exercise
and issuance) immediately before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no
such record is taken, the date as of which the record holders of Common Stock are to be determined for the grant, issue or sale of such
Purchase Rights. For the avoidance of doubt, in the case of a dividend or distribution for which an adjustment is required to be made
pursuant to Section 4(b), the Holder shall not be entitled to participate in such dividend or distribution pursuant to this
Section 4(c).
(d) Event
of Default. Not later than two (2) Business Days following the occurrence of an Event of Default,
the Company shall deliver written notice thereof via electronic mail and overnight courier to the Holder (a “Default Notice”),
which notice shall prominently indicate that it is a “Default Notice,” and make a public announcement of such Event of Default.
In the event of an Event of Default, the Company shall, at the Holder’s option, exercisable by written election of the Holder delivered
to the Company at any time prior to the thirtieth (30th) day following the occurrence of the Event of Default (or, if later,
the thirtieth (30th) day following the date of delivery to the Holder of the Default Notice in respect of such Event of Default),
purchase this Warrant from the Holder by paying or delivering to the Holder an amount in cash equal to the Black Scholes Value of the
unexercised portion of this Warrant. For purposes of clarification, the Holder shall not be required to exercise the Warrant or pay the
Exercise Price in order to receive such Black-Scholes Value. The payment of such Black-Scholes Value will be made by wire transfer of
immediately available funds within five (5) Business Days of the Holder’s election. The Beneficial Ownership Limitation
and any other restriction or limitation on exercise of this Warrant shall be disregarded for purposes of the determination of the Black
Scholes Value of the remaining unexercised portion of this Warrant.
8
(e) Organic
Change and Major Transaction.
(i) At
least thirty (30) days prior to the occurrence of any Major Transaction or Organic Change, but, in any event, within one (1) Trading
Day following the (x) the date of the first public announcement by any Person of such Major Transaction or Organic Change if such
announcement is made before 4:00 p.m., New York City time, or (y) the day following the public announcement of such Major Transaction
or Organic Change if such announcement is made at or after 4:00 p.m., New York City time, the Company shall deliver written notice
thereof via electronic mail and overnight courier to Holder (a “Major Transaction/Organic Change Notice”); provided,
however, that, with respect to any Major Transaction or Organic Change that is not a Successor Major Transaction, the applicable
deadline by which the Company must deliver the Major Transaction/Organic Change Notice shall be one (1) Trading Day following
(x) the date of the first public announcement by any Person of such Major Transaction or Organic Change if such announcement is made
before 4:00 p.m., New York City time, or (y) the day following the date of the first public announcement by any Person of such
Major Transaction or Organic Change if such announcement is made on or after 4:00 p.m., New York City time; and provided, further, that
the Company shall make a public announcement of any Major Transaction or Organic Change no later than one (1)Trading Day after the
Company first has knowledge of the occurrence thereof. Each Major Transaction/Organic Change Notice shall prominently indicate that it
is a “Major Transaction/Organic Change Notice” and the subject of any email that contains or attaches a Major Transaction/Organic
Change Notice shall be “Comtech – Major Transaction/Organic Change Notice.” Each Major Transaction/Organic Change Notice
shall set forth the date on which the applicable Major Transaction or Organic Change has been or will be consummated or occur (or, if
such date is not known, the Company’s good faith estimate of the date of such consummation or occurrence). If a Major Transaction
or Organic Change shall not have been consummated or occurred within thirty (30) days following any date on which a Major Transaction/Organic
Change Notice with respect thereto shall have been delivered to the Holder, then promptly following such thirtieth (30th) day,
such Major Transaction/Organic Change Notice shall be re-sent in accordance with this Section 4(e)(i) (provided, that
such notice shall be updated, if applicable, to reflect the Company’s good faith estimate of the date on which the Major Transaction
or Organic Change will be consummated or occur as of the date such notice is re-sent). Such notices shall be sent successively after each
30-day period following delivery of a Major Transaction/Organic Change Notice that the applicable Major Transaction or Organic Change
is not consummated or does not occur, unless the Company shall have publicly announced that such Major Transaction or Organic Change shall
not occur or be consummated. Without limiting the rights and remedies of the Holder hereunder or under the Exchange Agreement, Series B-4
Certificate of Designations, or otherwise at law or in equity, the failure to timely deliver or re-send any Major Transaction/Organic
Change Notice or other notice pursuant to this Section 4 or to include any required information in such notice shall toll
any time period hereunder for any response responding to, or taking any action following, such notice by the Holder.
(ii) Subject
to the right of the Holder to elect a Major Transaction Repurchase, in the event of a Major Transaction, then, upon any subsequent exercise
of this Warrant, the Holder shall have the right to receive, for each Warrant Share that would have been issuable upon such exercise immediately
prior to the occurrence of such Major Transaction, at the option of the Holder (without regard to any limitation in Section 2(d) on
the exercise of this Warrant or any other limitations on exercise herein or elsewhere and without regard to whether or not a sufficient
number of shares are authorized, reserved and available to effect any such exercise and issuance), the number of shares of Common Stock
of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the
“Alternate Consideration”) receivable as a result of such Major Transaction by a holder of the number of shares of
Common Stock for which this Warrant is exercisable immediately prior to such Major Transaction (without regard to the Beneficial Ownership
Limitation or any other limitations on exercise herein or elsewhere and without regard to whether or not a sufficient number of shares
are authorized, reserved and available to effect any such exercise and issuance), assuming this Warrant were exercised for cash. If holders
of Common Stock are given any choice as to the securities, cash or property to be received in a Major Transaction, then the Holder shall
be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Major Transaction.
(iii) Notwithstanding
anything to the contrary contained herein and without regard to the Beneficial Ownership Limitation or any other limitations on exercise
herein or elsewhere and without regard to whether or not a sufficient number of shares are authorized, reserved and available to effect
any such exercise and issuance, in the event of a Major Transaction, the Company or any Successor Entity shall, at the Holder’s
option, exercisable by written election of the Holder delivered to the Company, (A) in the case of a Successor Major Transaction,
at any time during the period beginning on the date the Company first delivers (or by which it is first obligated to deliver) such Major
Transaction/Organic Change Notice and ending on the later of five (5) Trading Days immediately prior to the occurrence of such
Major Transaction and fifteen (15) Trading Days after such Holder’s receipt of the last Major Transaction/Organic Change
Notice received by such Holder and (B) in the case of a Major Transaction other than a Successor Major Transaction, at any time beginning
on the date the Company delivers (or by which it is obligated to deliver) a Major Transaction/Organic Change Notice with respect thereto
for so long as this Warrant remains outstanding, purchase this Warrant from the Holder by paying or delivering to the Holder the Major
Transaction Consideration (a “Major Transaction Repurchase”). For purposes of clarification, the Holder shall not be
required to exercise the Warrant or pay the Exercise Price in order to receive the Major Transaction Consideration. The payment of the
cash component of the Major Transaction Consideration will be made by wire transfer of immediately available funds within five (5) Business
Days of the Holder’s election (or, if later, on the effective date of the Major Transaction) and the delivery of any non-cash component(s) of
the Major Transaction Consideration shall be delivered to the Holder on substantially the same basis as a holder of Common Shares would
be entitled to receive comparable consideration as a result of the Major Transaction. The Beneficial Ownership Limitation and any other
restriction or limitation on exercise of this Warrant (including any such restriction or limitation resulting from an insufficient number
of authorized, reserved and available shares to effect the exercise of this Warrant) shall be disregarded for purposes of the determination
of the Black Scholes Value of the remaining unexercised portion of this Warrant.
9
(iv) The
Company shall cause any acquiring, surviving or successor entity in a Major Transaction or Organic Change in which the Company does not
survive as the parent entity (the “Successor Entity”) to assume in writing all of the obligations of the Company under
this Warrant and the Registration Rights Agreement in accordance with the provisions hereof and thereof pursuant to written agreements
in form and substance reasonably satisfactory to the Holder and approved by the Required Holders prior to such Major Transaction or Organic
Change, including agreements to deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written
instrument substantially similar in form and substance to this Warrant that is exercisable for a corresponding number of shares of capital
stock of such Successor Entity (or its parent entity) equivalent to the shares of Common Stock acquirable and receivable upon exercise
of this Warrant (without regard to the Beneficial Ownership Limitation or any other limitations on exercise herein or elsewhere and without
regard to whether or not a sufficient number of shares are authorized, reserved and available to effect any such exercise and issuance,
and assuming this Warrant is exercised for cash) prior to such Major Transaction or Organic Change, as applicable, and with an exercise
price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the shares
of Common Stock pursuant to such Major Transaction or Organic Change and the value of such shares of capital stock, to the extent necessary
to protect the Holders from any loss of value of this Warrant immediately prior to the consummation of such Major Transaction), and which
is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Organic Change or Major Transaction in
which there is a Successor Entity, the Successor Entity shall succeed to, and be substituted for the Company (so that from and after the
occurrence of such Organic Change or Major Transaction, the provisions of this Warrant referring to the “Company” shall refer
instead to the Successor Entity), and the Successor Entity shall assume all of the obligations of the Company under this Warrant and the
Registration Rights Agreement with the same effect as if the Successor Entity had been named as the Company herein and therein.
(v) Notwithstanding
anything to the contrary contained herein, the Holder may deliver an Exercise Form not less than five (5) Business Days
prior to the closing of a Major Transaction or the occurrence of any other transaction or event that provides for the exercise of this
Warrant (in whole or in part), that is conditioned upon, and, at the election of the Holder, shall occur concurrently with, or immediately
prior to, the consummation of such Major Transaction, other transaction or event (which, in the case of an Asset Sale, may be the distribution
of assets to the Company’s stockholders); provided, that delivery of such an Exercise Form shall not prohibit the Holder
from exercising this Warrant in accordance with its terms during such five (5) Business Day period.
(vi) If,
at any time while this Warrant is outstanding an Organic Change is consummated or otherwise occurs, then, upon exercise of this Warrant,
the Holder shall be entitled to receive in lieu of (or in addition to, as the case may be) the Warrant Shares, the kind and amount of
securities, cash or other property of the Company or the Successor Entity, as the case may be, resulting from such Organic Change, which
a Holder of the Warrant Share Number (at the time of such Organic Change and, for the avoidance of doubt, without regard to the Beneficial
Ownership Limitation or any other restriction or limitation on exercise) of Warrant Shares would have been entitled to receive upon consummation
of such Organic Change if such Warrant Shares had been outstanding immediately prior to such Organic Change; and in any such case, if
applicable, the provisions set forth herein with respect to the rights and interests thereafter of the Holder shall be appropriately adjusted
(pursuant to a written agreement in form and substance reasonably satisfactory to the Required Holders) so as to be applicable, as nearly
as may reasonably be, to the Holder’s right to exercise this Warrant in exchange for any shares of stock or other securities or
property pursuant to this paragraph. If holders of Common Shares are given any choice as to the kind and/or amount of stock and/or other
securities or property (including cash) to be received in an Organic Change, then the Holder shall be given the same choice as to the
consideration it receives upon any exercise of this Warrant following such Organic Change. For the avoidance of doubt, neither the provisions
of this Section 4(e)(vi) nor any partial exercise of this Warrant following the occurrence of an Organic Change shall
in any way limit the right of the Holder to elect a Major Transaction Repurchase.
10
(vii) The
Company shall not effect a Successor Major Transaction with respect to which Holder has elected to cause a repurchase of this Warrant
in accordance with this Section 4(e) without first either (a) placing into an escrow account with an independent
escrow agent, at least three (3) Business Days prior to the closing date of the Successor Major Transaction, the relevant Major
Transaction Consideration or (b) obtaining the written agreement of any Successor Entity that the payment of the Major Transaction
Consideration shall be a condition precedent to consummation of such Successor Major Transaction. In the event that the Company attempts
to consummate a Major Transaction without complying with this Section 4(e), the Holder shall have the right to apply for an
injunction in any state or federal court sitting in the City of New York, borough of Manhattan to prevent the closing of such Major Transaction
until the Company (and, if applicable, the Successor Entity) shall have complied with provisions of this Section 4(e), without
the necessity of showing economic loss and without any bond or other security being required.
(viii) For
the avoidance of doubt, the rights and obligations of the Company and each Holder upon the occurrence of a Major Transaction or Organic
Change are conditional upon such Major Transaction or Organic Change being consummated (or actually occurring, as applicable) and in the
event that a Major Transaction or Organic Change for which a Holder is given notice is not consummated (or does not occur), then upon
written notice from the Company to such Holder confirming that such Major Transaction or Organic Change has not and will not be consummated
(or occur), all actions taken under this Section 4(e) prior to such written notice in connection with such Major Transaction
or Organic Change shall be deemed to be rescinded and null and void. In the event that such Major Transaction is being consummated pursuant
to an agreement between the Company (or any Rule 144 Affiliate thereof) and any other Person, the Company shall not deliver the written
notice contemplated by the immediately preceding sentence unless such agreement has terminated.
(f) Certain
Repurchases of Common Shares. In case the Company effects a Pro Rata Repurchase of shares of Common Stock and the value
(determined as of the time (the “Expiration Time”) such Pro Rata Repurchase expires by the Company in good faith) of
the cash and other consideration paid per share of Common Stock in such Pro Rata Repurchase exceeds the Closing Price per share of Common
Stock on the Trading Day immediately after the last date (the “Expiration Date”) on which tenders or exchanges may
be made pursuant to such Pro Rata Repurchase (such Closing Price, the “Pro Rata Repurchase Closing Price”), then the
Exercise Price shall be reduced (but in no event increased) to the price determined by multiplying the Exercise Price in effect immediately
prior to the Expiration Time by a fraction of which the numerator shall be (i) the product of (x) the number of shares of Common
Stock outstanding immediately prior to such Pro Rata Repurchase (including the shares to be repurchased or exchanged in the Pro Rata Repurchase)
and (y) the Pro Rata Repurchase Closing Price, minus (ii) the aggregate value of all cash and any other consideration (determined
as of the Expiration Time by the Company in good faith) paid or payable for shares purchased in such Pro Rata Repurchase, and of which
the denominator shall be the product of (x) the number of shares of Common Stock outstanding immediately prior to such Pro Rata Repurchase,
excluding the shares to be repurchased or exchanged in the Pro Rata Repurchase and (y) the Pro Rata Repurchase Closing Price. In
such event, the Warrant Share Number shall be increased (but in no event decreased) to the number obtained by dividing (i) the product
of (x) the Warrant Share Number before such adjustment, and (y) the Exercise Price in effect immediately prior to the Pro Rata
Repurchase giving rise to this adjustment by (ii) the new Exercise Price determined in accordance with the immediately preceding
sentence.
(g) Other
Events. If any event of the type contemplated by the provisions of Section 4(a), 4(b), 4(d),
4(e) or 4(f) or any other provision hereof that provides for an adjustment of Exercise Price, the Warrant Share
Number, or the number and class of shares of capital stock issuable upon exercise of this Warrant, but not expressly provided for by any
such provision occurs, then the Company shall make an appropriate adjustment in the Exercise Price, the Warrant Share Number and/or number
and class of shares of capital stock issuable upon exercise of this Warrant so as to protect the rights of the Holder in a manner consistent
with such provisions; provided, that no such adjustment shall increase the Exercise Price or decrease the Warrant Share Number except
as otherwise determined pursuant to the express provisions of Section 4(a) or 4(b).
11
(h) Calculations.
All calculations under this Section 4 shall be made to the nearest one-hundredth (1/100th) of a cent or to the nearest
one-tenth (l/10th) of a share, as the case may be.
(i) Notice
of Adjustments. Whenever the Exercise Price or the Warrant Share Number shall be adjusted as provided in this Section 4,
the Company shall as promptly as practicable deliver to the Holder a certificate of its Chief Financial Officer (the “Adjustment
Certificate”) setting forth, in reasonable detail, the event requiring such adjustment and the method by which such adjustment
was calculated and specifying the Exercise Price and Warrant Share Number that shall be in effect after such adjustment. Notwithstanding
the foregoing, if the Holder objects to the Exercise Price and the Warrant Share Number (after giving effect to the proposed adjustment)
set forth in the Adjustment Certificate, the Holder shall notify the Company of the in writing of such objection (such notice, the “Objection
Notice”) as promptly as practicable, in any event no later than five (5) Business Days, after delivery of the Adjustment
Certificate by the Company, specifying, in reasonable detail, the nature of any objection so asserted, and include all supporting calculation,
analyses and other documentation. If the Holder delivers an Objection Notice pursuant to this Section 4(i), the Company and
the Holder shall negotiate in good faith to resolve any objection set forth in the Objection Notice. If the Company and the Holder are
unable to resolve all objections set forth in the Objection Notice within fifteen (15) Business Days of delivery of the Objection Notice
by the Holder to the Company (or such longer period as the Company and the Holder may agree), then the Company shall promptly obtain a
certificate of an independent, nationally recognized accounting or investment banking firm (which firm does not have a material financial
interest in either the Company or the Holder or any of their respective Affiliates) appointed for such purpose (the “Independent
Financial Expert”) setting forth the same information, and such certificate shall be used as the basis to effect the applicable
adjustment. The costs and expenses of such Independent Financial Expert shall be paid by the Holder, unless the calculations of the Exercise
Price and the Warrant Share Number (after giving effect to the proposed adjustment) set forth in the certificate of the Independent Financial
Expert differ by 10% or more from the calculations set forth in the Adjustment Certificate, in which case such costs and expenses shall
be paid by the Company.
(j) Adjustment
Rules. Any adjustments pursuant to this Section 4 shall be made successively whenever an event referred to
herein shall occur. If an adjustment in Exercise Price made hereunder would reduce the Exercise Price to an amount below the par value
of the Common Stock, then such adjustment in Exercise Price made hereunder shall reduce the Exercise Price to the par value of the Common
Stock.
(k) Proceedings
Prior to any Action Requiring Adjustment. As a condition precedent to the taking of any action which would require an adjustment
pursuant to this Section 4, the Company shall take such actions as are necessary, which may include obtaining regulatory,
stock exchange or stockholder approvals or exemptions, in order that the Company may thereafter validly and legally issue as fully paid
and nonassessable Common Shares (and any other securities, if applicable) that the Holder is entitled to receive upon exercise of this
Warrant pursuant to this Section 4.
(l) Income
Tax Adjustment. The Company may (but is not required to) make such decreases in the Exercise Price and increases in the
Warrant Share Number, in addition to those required by Sections 4(a) through 4(g), as the Board of Directors determines
is consistent with the principles of Treasury Regulation Section 1.305-3 and considers to be advisable to avoid or diminish any U.S.
federal income tax to holders of Common Stock or rights to purchase Common Stock in connection with a dividend or distribution of shares
(or rights to acquire shares) or any similar event treated as such for U.S. federal income tax purposes.
5. Taxes;
HSR.
(a) Taxes.
The Company shall be responsible for paying all present or future stamp, court or documentary, intangible, recording, filing or similar
taxes (“Transfer Taxes”) that arise from the issuance of this Warrant and any issuance of the Warrant Shares under
this Warrant.
(b) HSR
Submissions. If the Holder determines in good faith that the exercise of this Warrant is subject to notification under
the Hart-Scott Rodino Antitrust Improvements Act of 1976, as amended, and the related rules and regulations promulgated thereunder
(collectively, the “HSR Act”), each of the Company and the Holder agrees to (i) cooperate with the other party
in the other party’s preparing and making such submission and any responses to inquiries of the Federal Trade Commission (“FTC”)
and/or Department of Justice (“DOJ”); and (ii) prepare and make any submission required to be filed by the Company
or the Holder, as applicable, under the HSR Act and respond to inquiries of the FTC and DOJ in connection therewith. The Company shall
pay, or reimburse the Holder for, the costs of any required filing fees for any submissions under the HSR Act. Where the Holder notifies
the Company that, pursuant to this section, the Holder has determined that an HSR filing is required, the Company shall not issue Warrant
Shares until the expiration or early termination of the applicable waiting period under the HSR Act.
12
6. Dispute
Resolution. In the case of a dispute between the Company and the Holder as to the determination of the Exercise Price, Market
Price, Volume Weighted Average Price, Major Transaction Consideration or Major Transaction Warrant Share Number, the Company shall issue,
or instruct the Transfer Agent to issue, as applicable, to the Holder the number of Warrant Shares that is not disputed and shall transmit
an explanation of the disputed determinations or arithmetic calculations to the Holder via email within two (2) Business Days
of receipt or deemed receipt of the Holder’s Exercise Form or other date of determination. If the Holder and the Company are
unable to agree upon the determination of the Exercise Price, Market Price, Volume Weighted Average Price, Major Transaction Consideration
or Major Transaction Warrant Share Number within one (1) Business Day of such disputed determination or arithmetic calculation
being transmitted to the Holder, then the Company shall promptly (and in any event within two (2) Business Days) submit via
email (A) the disputed determination of the Exercise Price, Market Price, Volume Weighted Average Price, Major Transaction Consideration
or Major Transaction Warrant Share Number, to an independent, reputable investment banking firm selected by the Holder and subject to
the approval of the Company (such consent not to be unreasonably withheld, conditioned or delayed), or (B) in the case of a dispute
as to the arithmetic calculation of the Exercise Price or the arithmetic calculation of the Volume Weighted Average Price, Major Transaction
Consideration or Major Transaction Warrant Share Number, to an independent registered public accounting firm selected by the Holder and,
if not the Company’s auditors, subject to the approval of the Company (such consent not to be unreasonably withheld, conditioned
or delayed), as the case may be. The Company shall direct the investment bank or the accounting firm, as the case may be, to perform the
determinations or calculations and notify the Company and the Holder of the results no later than two (2) Business Days from
the time it receives the disputed determinations or calculations. Such investment bank’s or accounting firm’s determination
or calculation, as the case may be, shall be binding upon all parties absent manifest error. Notwithstanding anything herein to the contrary,
any such final determination in respect of a dispute in connection with a Major Transaction in which the Company is not the surviving
parent entity, shall be made prior to the occurrence of such Major Transaction.
7. Frustration
of Purpose. The Company hereby covenants and agrees that the Company will not, by amendment of its certificate of incorporation,
bylaws or through any reorganization, transfer of assets, consolidation, merger, scheme of arrangement, dissolution, issuance or sale
of securities, or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant,
and will at all times in good faith carry out all the provisions of this Warrant and take all action as may be required to protect the
rights of the Holder. Without limiting the generality of the foregoing, the Company (i) shall not increase the par value of any Common
Shares receivable upon the exercise of this Warrant above the Exercise Price then in effect, and (ii) shall take all such actions
as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable Common Shares
upon the exercise of this Warrant.
8. Definitions.
For the purposes of this Warrant, the following terms have the following meanings:
“Action”
means any legal, regulatory or administrative proceeding, suit, investigation, arbitration or action.
“Adjustment Certificate”
has the meaning specified in Section 4(i) hereof.
“Asset Sale”
means a transaction described in clause (B) of the definition of “Major Transaction.”
“Beneficial Ownership
Limitation” has the meaning specified in Section 2(j) hereof.
“Black Scholes Value”
means the value of this Warrant or applicable portion thereof as determined by use of the Black-Scholes Option Pricing Model using the
applicable criteria set forth on Schedule A hereto.
13
“Bloomberg”
means Bloomberg Financial Markets or an equivalent, reliable reporting service mutually acceptable to and hereafter designated by the
Required Holders and the Company.
“Business Day”
means any day, except a Saturday, Sunday or legal holiday, on which banking institutions in the city of New York, New York are authorized
or obligated by law or executive order to close; provided, however, for clarification, bank institutions shall not be deemed
to be authorized or obligated by law or executive order to remain closed due to “stay at home,” “shelter-in-place,”
“non-essential employee” or any other similar orders or restrictions or the closure of any physical branch locations at the
direction of any governmental authority so long as the electronic funds transfer systems (including for wire transfers) of commercial
banks in the City of New York generally are open for use by customers on such day.
“Cash Exercise”
has the meaning specified in Section 2(b) hereof.
“Cashless Exercise”
has the meaning specified in Section 2(c) hereof.
“Closing Price”
means, for any security as of any Trading Day, the closing (last sale) price per share for such security on its Principal Market on such
Trading Day (at the end of regular trading hours on such Principal Market), as reported by Bloomberg, or if no closing price per share
is reported for such security by Bloomberg, the average of the last bid and last ask price (or if more than one in either case, the average
of the average last bid and average last ask prices) per share for such security on such Trading Day as reported in the composite transactions
for the principal U.S. national or regional securities exchange on which the Common Stock is traded. If such security is not listed for
trading on a U.S. national or regional securities exchange on the relevant Trading Day, then the Closing Price for such security will
be the average of the mid-point of the last bid and last ask prices per share for such security in the over-the-counter market on the
relevant Trading Day as reported by OTC Markets Group or similar organization. If the Closing Price cannot be calculated for a security
on such date on any of the foregoing bases, the Closing Price of such security on such date shall be the fair market value per share of
such security as mutually determined in good faith by the Board of Directors of the Company and the Required Holders.
“Common Shares”
means shares of Common Stock.
“Common Stock”
has the meaning specified in the preamble hereof.
“Company”
has the meaning specified in the preamble hereof.
“Delivery Failure”
means the Company fails to deliver Warrant Shares to Holder within any applicable Delivery Period (other than due to the Beneficial Ownership
Limitation).
“Delivery Period”
means, in respect of each exercise of the Holder’s purchase right hereunder, the period commencing on the delivery of an Exercise
Form in respect of such exercise and ending on the deadline for delivery of the applicable Warrant Shares as set forth in Section 2(d).
“DTC” has
the meaning specified in Section 2(d) hereof.
“DWAC”
has the meaning specified in Section 2(d) hereof.
“Event of Default”
means the occurrence of any of the following: (i) a Registration Failure occurs and remains uncured for a period of more than thirty (30)
days; (ii) a Public Reporting Failure occurs and remains uncured for a period of more than thirty (30) days; (ii) a
Delivery Failure occurs and remains uncured for a period of more than ten (10) Business Days; or at any time, the Company announces
or states in writing that it will not honor its obligations to issue and deliver Common Shares to Holder upon exercise by Holder of this
Warrant; (iii) a Legend Removal Failure occurs and remains uncured for a period of ten (10) days; (iv) a Transfer
Delivery Failure occurs and remains uncured for a period of twenty (20) days; (v) the Company breaches any of its obligations
under Section 4(e) hereof in respect of a Major Transaction; (vi) the Company commits any other material breach
of its obligation hereunder or under the Registration Rights Agreement and such breach remains uncured for a period of more than thirty (30)
days following notice of such breach; (vii) the liquidation, bankruptcy, insolvency, dissolution or winding up (or the occurrence
of any analogous proceeding) of the Company; (viii) the Common Shares cease to be listed, traded or publicly quoted on the Nasdaq
Global Market and are not promptly re-listed on the New York Stock Exchange, the NYSE American, the NASDAQ Global Market, the NASDAQ Global
Select Market or the NASDAQ Capital Market (or, in each case, any successor thereto); or (ix) the Common Stock ceases to be registered
under Section 12 of the Exchange Act.
14
“Exchange
Act” means the Securities Exchange Act of 1934, as amended.
“Exchange Agreement”
has the meaning specified in the preamble hereof.
“Exercise Date”
has the meaning specified in Section 2(a) hereof.
“Exercise Form”
has the meaning specified in Section 2(a) hereof.
“Exercise Price”
means $[⚫ ]8 per share, subject to adjustment as provided herein.
“Holder”
means the Person or Persons who shall from time to time own this Warrant.
“Independent Financial
Expert” has the meaning specified in Section 4(i) hereof.
“Legend Removal Failure”
means the Company fails to issue this Warrant and/or Warrant Shares without a restrictive legend, or fails to remove a restrictive legend,
when and as required under Section 2(f) hereof.
“Major Transaction”
means any of the following events:
(A) a
consolidation, merger, exchange of shares, tender or exchange offer, recapitalization, reorganization, business combination, purchase
or sale of shares or other similar event, (1) following which the holders of Common Stock, or of the voting power of voting stock,
immediately preceding such consolidation, merger, exchange, recapitalization, reorganization, business combination, sale of shares or
other event either (a) no longer own a majority of the outstanding shares of Common Stock or of the shares or voting power of voting
stock of the Company or (b) no longer have the ability to elect a majority of the Board of Directors of the Company, or (2) as
a result of which the Common Stock shall be changed into (or the holders of the shares of Common Stock become entitled to receive) the
same or a different number of shares of the same or another class or classes of stock or securities of the Company or of another entity
(other than (i) to the extent the shares of Common Stock are changed or exchanged solely to reflect a change in the Company’s
jurisdiction of incorporation, (ii) any Stock Event or (iii) solely a change in par value of the Common Stock) (a “Change
in Control Transaction”);
(B) the
sale, lease or transfer or other conveyance (including, for the avoidance of doubt, by way of an exclusive license), in one transaction
or a series of related transactions of (i) all or substantially all of the consolidated assets of the Company (including, for the
avoidance of doubt, all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole) to any Person other
than one or more of the Company’s wholly-owned Subsidiaries or (ii) assets of the Company (including, for the avoidance of
doubt, assets of the Company and its Subsidiaries, taken as a whole) to any Person other than one or more of the Company’s wholly-owned
Subsidiaries for a purchase price equal to more than 50% of the Enterprise Value (as defined below) of the Company. For purposes of this
clause (B), “Enterprise Value” shall mean (I) the product of (x) the number of issued and outstanding
shares of Common Stock on the date the Company first delivers (or by which it is first obligated to deliver) the Major Transaction/Organic
Change Notice multiplied by (y) the Closing Price of the Common Stock on such date plus (II) the aggregate principal amount
of the Company’s and its consolidated subsidiaries’ debt as shown on the latest consolidated financial statements of the Company
and its subsidiaries filed with the Commission (the “Current Financial Statements”), plus (III) if applicable,
the aggregate liquidation preference of each class of the Company’s outstanding preferred stock, if any, less (III) the aggregate
amount of cash and cash equivalents of the Company and its consolidated subsidiaries, as shown on the Current Financial Statements;
8 Insert the Conversion Price in effect on the Original
Issue Date.
15
(C) the
stockholders of the Company approve any plan or proposal for the liquidation, dissolution or winding-up of the Company;
(D) a
“person” or “group” within the meaning of Section 13(d) of the Exchange Act, other than the Company,
the Holder or its Rule 144 Affiliates files any schedule, form or report under the Exchange Act disclosing that such person or group
has become the direct or indirect “beneficial owner” as defined in Rule 13d-3 under the Exchange Act of the Company’s
Stock representing beneficial ownership of more than 50% of the outstanding shares of Common Stock or of the shares or voting power of
the Company’s voting stock; provided, that no person or group shall be deemed to be the beneficial owner of any securities tendered
pursuant to a tender offer or exchange offer made by or on behalf of such “person” or “group” until such tendered
securities are accepted for purchase or exchange under such offer;
(E) the
Common Stock ceases to be listed on any Eligible Market on which it is then listed and is not immediately re-listed on another Eligible
Market. For the purposes of this clause (E), “Eligible Market” means the New York Stock Exchange, the NYSE American,
The Nasdaq Capital Market, The Nasdaq Global Market or The Nasdaq Global Select Market (or, in each case, any successor thereto); or
(F) the
Common Stock ceases to be registered under Section 12 of the Exchange Act.
“Major Transaction
Consideration” means (a) the amount of cash, property and other assets and the number of securities or other property of
the Successor Entity, the Company or other entity that would be issuable in the Major Transaction, in respect of a number of shares equal
to the Major Transaction Warrant Share Number (assuming, for these purposes, that such shares had been issued and outstanding immediately
prior to consummation of such Major Transaction) or (b) if none of the foregoing applies, an amount in cash equal to the Black-Scholes
Value of the unexercised portion of this Warrant. If holders of Common Shares are given any choice as to the securities, cash or property
to be received in a Major Transaction, then the Holder shall be given the same choice as to the Major Transaction Consideration it receives
upon a Major Transaction Repurchase (without giving effect to the Beneficial Ownership Limitation or any other limitation on exercise
herein, and assuming the exercise hereof for cash).
“Major Transaction
Warrant Share Number” means an amount equal to the Black-Scholes Value of the unexercised portion of this Warrant determined
as of the date the applicable Major Transaction is consummated or otherwise occurs, divided by the Closing Price of the Common Stock on
the principal securities exchange or other securities market on which the Common Stock is then traded on the Trading Day immediately preceding
the date on which the applicable Major Transaction is consummated or otherwise occurs.
“Market Price”
means, with respect to a share of Common Stock or any other security, on any given day, the arithmetic average of the Volume Weighted
Average Price (as defined below) of the Company’s Common Stock or such security on each of the five (5) consecutive Trading
Days ending immediately prior to the Exercise Date or other date of determination (or, for the avoidance of doubt, for purposes of the
determination of the Market Price in the case of an exercise of this Warrant, or any other event, occurring on a Trading Date after the
end of regular trading hours on the applicable exchange or trading market, ending on such Exercise Date or other date of determination).
In the event that a Stock Event is consummated during any period for which the arithmetic average of the Volume Weighted Average Prices
is to be determined, the Volume Weighted Average Price for all Trading Days during such period prior to the effectiveness of the Stock
Event shall be appropriately adjusted to reflect such Stock Event.
“Objection Notice”
has the meaning specified in Section 4(i) hereof.
“Organic Change”
means any merger, consolidation, business combination, recapitalization, reorganization, reclassification, spin-off or other transaction,
other than a Major Transaction, in each case, that is effected in such a way that the outstanding Common Shares are converted into, are
exchanged for or become the right to receive (either directly or upon subsequent liquidation) cash, securities or other property.
“Original Issue Date”
means the date this Warrant is originally issued pursuant to the Exchange Agreement.
16
“Person”
means an individual, corporation, limited liability company, partnership, joint venture, association, trust, unincorporated organization
or any other entity.
“Principal Market”
means, with respect to the Common Stock, the principal Eligible Market on which the Common Stock is listed, and with respect to any other
security, the principal securities exchange or trading market for such security.
“Pro Rata Repurchase”
means any purchase of shares of Common Stock by the Company or any subsidiary thereof pursuant to any tender offer or exchange offer subject
to Section 13(e) of the Exchange Act (other than solely pursuant to an odd-lot tender offer pursuant to Rule 13e-4(h)(5) under
the Exchange Act); provided, however, that, for the avoidance of doubt, “Pro Rata Repurchase” shall not include
any purchase of shares by the Company or any subsidiary thereof made in accordance with the requirements of Rule 10b-18 as in effect
under the Exchange Act.
“Public Reporting
Failure” means the failure of the Company to file with the Commission in a timely manner (giving effect to any extensions pursuant
to Rule 12b-25 under the Exchange Act) all reports and other materials required to be filed by the Company by Section 13 or
15(d) of the Exchange Act, as applicable (provided, that the failure to file Current Reports on Form 8-K shall not be deemed
a Public Reporting Failure to the extent that Rule 144 remains available for the resale of the Warrant Shares).
“Registration Failure”
means the failure of the Company to use its reasonable best efforts to (A) obtain effectiveness with the SEC in respect of any Shelf
Registration pursuant to the Registration Rights Agreement, or (B) keep such Shelf Registration current, effective and available
for the resale of the Registrable Securities (including, as applicable, by amending or supplementing such Shelf Registration, as required
pursuant to the Registration Rights Agreement.
“Registration Rights
Agreement” means that certain Registration Rights Agreement, dated as of June 14, 2026, among the Company, and the Investors
(as defined therein) from time to time signatory thereto, as may be amended, restated, amended and restated, supplemented or otherwise
modified from time to time in accordance with the terms thereof.
“Required Holders”
means the Holders holding a majority in interest of the Warrants.
“Rule 144 Affiliate”
means, with respect to any Person as of the applicable time of determination, that such Person is not as of such time a “person”
that is an “affiliate” of the Company within the meaning of Rule 144.
“SEC” means
the U.S. Securities and Exchange Commission.
“Securities Act”
means the Securities Act of 1933, as amended.
“Standard Settlement
Period” means the standard settlement period, expressed in a number of Trading Days, on the principal securities exchange or
securities market on which the Common Stock is then traded as in effect on the date of delivery of the applicable Exercise Form.
“Successor Major
Transaction” means a Change in Control Transaction in which the outstanding shares of Common Stock are converted into the right
to receive cash, securities of another entity and/or other assets or an Asset Sale.
“Term”
has the meaning specified in Section 1 hereof.
“Trading Day”
means, in respect of any security, any day on which trading of such security occurs on its Principal Market. If the Common Shares are
not so listed or traded, then “Trading Day” means a Business Day.
“Transfer Delivery
Failure” means the Company has failed to deliver a Warrant within any applicable Transfer Delivery Period.
17
“Unrestricted Conditions”
has the meaning specified in Section 2(f)(ii) hereof.
“Volume Weighted
Average Price” means, with respect to a share of Common Stock or any other security as of any date, the volume weighted average
sale price on the principal United States exchange or market on which the Common Stock or such security is then being traded as reported
by, or based upon data reported by, Bloomberg, or, if no volume weighted average sale price is reported for such security, then the last
closing trade price of such security as reported by Bloomberg, or, if no last closing trade price is reported for such security by Bloomberg,
the average of the bid prices of any market makers for such security on the OTC Bulletin Board, the OTCQX Market, the OTCQB Market or
Pink Open Market of OTC Markets Group (or, in each case, any successor to such market).
“Warrant”
means this Warrant and any other warrants of like tenor issued in substitution or exchange for any thereof pursuant to the provisions
of Section 2(d) hereof.
“Warrant Share Number”
means [_______]9, subject to adjustment as set forth herein, including reduction for
each Common Share as to which this Warrant has been exercised (whether pursuant to a Cash Exercise or a Cashless Exercise) hereunder (subject
to the Company’s compliance with its obligations with respect to each such exercise under Section 2 hereof).
“Warrant Shares”
has the meaning set forth in the preamble.
“Warrants”
means, collectively, this Warrant and each other warrant issued pursuant to the Exchange Agreement and any Warrants issued in exchange,
transfer or replacement hereof or thereof, as any of the foregoing may be amended, restated, supplemented or otherwise modified from time.
9. Amendment
and Waiver. Any term, covenant, agreement or condition in this Warrant may be amended, or compliance therewith may be waived
(either generally or in a particular instance and either retroactively or prospectively), by a written instrument or written instruments
executed by the Company and the Holder. No consideration shall be offered or paid to any Person to amend or consent to a waiver or modification
of any provision of any of this Warrant, unless the same consideration (other than the reimbursement of legal fees) also is ratably offered
to the holders of all other Warrants.
10. Governing
Law; Jurisdiction; Specific Performance. This Warrant and all matters concerning the construction, validity, enforcement and
interpretation hereof or otherwise relating hereto shall be governed by, and construed in accordance with, the internal laws of the State
of New York, without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other
jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of New York. All Actions arising
out of or relating to this Warrant shall be heard and determined in the courts of the State of New York or the courts of the United States
located in the Borough of Manhattan, New York City, New York, and the parties hereto hereby irrevocably submit to the exclusive jurisdiction
and venue of such courts in any such Action and irrevocably waive the defense of an inconvenient forum or lack of jurisdiction to the
maintenance of any such Action. The consents to jurisdiction and venue set forth in this Section 10 shall not constitute general
consents to service of process in the State of New York and shall have no effect for any purpose except as provided in this paragraph
and shall not be deemed to confer rights on any Person other than the parties hereto. Each party hereto agrees that service of process
upon such party in any Action arising out of or relating to this Warrant shall be effective if notice is given by overnight courier at
the address set forth or referred to in Section 11 of this Warrant. The parties hereto agree that a final judgment in any such Action
shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable law;
provided, however, that nothing in the foregoing shall restrict any party’s rights to seek any post-judgment relief regarding, or
any appeal from, a final trial court judgment. The parties hereto agree that irreparable damage for which monetary relief, even if available,
would not be an adequate remedy, would occur in the event that the parties hereto do not perform the provisions of this Warrant in accordance
with its specified terms or otherwise breach such provisions. Accordingly, the parties acknowledge and agree that the parties shall be
entitled to an injunction or injunctions, specific performance or other equitable relief to prevent breaches of this Warrant and to enforce
specifically the terms and provisions hereof in the courts without proof of damages or otherwise, this being in addition to any other
remedy to which they are entitled under this Warrant, the Exchange Agreement or the Series B-4 Certificate of Designations, and this
right of specific enforcement is an integral part of the terms of this Warrant. The parties agree not to assert that a remedy of specific
enforcement is unenforceable, invalid, contrary to law or inequitable for any reason, and agree not to assert that a remedy of monetary
damages would provide an adequate remedy or that the parties otherwise have an adequate remedy at law. The parties acknowledge and agree
that any party shall not be required to provide any bond or other security in connection with its pursuit of an injunction or injunctions
to prevent breaches of this Warrant to enforce specifically the terms and provisions hereof. The remedies provided in this Warrant shall
be cumulative and in addition to all other remedies available under this Warrant, the Exchange Agreement, and the Series B-4 Certificate
of Designations at law or in equity (including a decree of specific performance and/or other injunctive relief).
9 Insert the quotient of (x) the aggregate
Liquidation Preference of shares of Series B Preferred Stock repurchased by the Company pursuant to the exercise of the applicable Asset
Sale Put Right or Asset Sale Call Right, as applicable, in connection with such Asset Sale Trigger, divided by (y) the Conversion Price
as of such Optional Repurchase Date or consummation of such Asset Sale Call Right, as applicable.
18
11. Notices.
All notices, requests, claims, demands and other communications under this Warrant shall be in writing and shall be given or made (and
shall be deemed to have been duly given or made upon receipt) by delivery in person, by overnight courier service, by email, or by registered
or certified mail (postage prepaid, return receipt requested) to the respective parties hereto at the following respective addresses (or
at such other address for a party hereto as shall be specified in a notice given in accordance with this Section 11):
(a) If
to the Holder to the address for the notice to the Holder pursuant to the Exchange Agreement, or at such other address or contact information
delivered by the Holder to the Company in writing.
(b) If
to the Company:
Comtech Telecommunications Corp.
305 N 54th Street
Chandler, Arizona 85226
E-mail : don.walther@comtech.com
Attention: Don Walther
with a copy to (which copy alone shall not constitute notice):
Norton Rose Fulbright US LLP
1301 Avenue of the Americas
New York, New York 10019
E-mail: steven.suzzan@nortonrosefulbright.com
Attention: Steven I. Suzzan
In connection with any exercise or assignment
of this Warrant, no ink-original Exercise Form or Assignment Form, as applicable, shall be required, nor shall any medallion guarantee
(or other type of guarantee or notarization) of any Exercise Form or Assignment Form be required.
12. Successors
and Assigns. This Warrant and the rights evidenced hereby shall inure to the benefit of and be binding upon the Company and
the Holder and their respective successors and permitted assigns (subject to Section 2(e) with respect to the Holder);
provided that the Company shall not assign its obligations under this Warrant except to a Successor Entity in connection with a Successor
Major Transaction as provided in Section 4(e).
13. Modification
and Severability. The provisions of this Warrant will be deemed severable and the invalidity or unenforceability of any provision
will not affect the validity or enforceability of any other provision hereof. To the fullest extent permitted by law, if any provision
of this Warrant, or the application thereof to any Person or circumstance, is invalid or unenforceable, (a) a suitable and equitable
provision will be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid
or unenforceable provision, and (b) the remainder of this Warrant and the application of such provision to other Persons, entities
or circumstances will not be affected by such invalidity or unenforceability.
19
14. Interpretation.
When a reference is made in this Warrant to a Section, such reference shall be to a Section of this Warrant unless otherwise indicated.
The headings contained in this Warrant are for reference purposes only and shall not affect in any way the meaning or interpretation of
this Warrant. Whenever the words “include,” “includes” or “including” are used in this Warrant, they
shall be deemed to be followed by the words “without limitation.” The words “hereof,” “herein” and
“hereunder” and words of similar import when used in this Warrant shall refer to this Warrant as a whole and not to any particular
provision of this Warrant unless the context requires otherwise. The words “date hereof’ when used in this Warrant shall refer
to the date of this Warrant. The terms “or,” “any” and “either” are not exclusive. The word “extent”
in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean
simply “if.” The word “will” shall be construed to have the same meaning and effect as the word “shall.”
All terms defined in this Warrant shall have the defined meanings when used in any document made or delivered pursuant hereto unless otherwise
defined therein. The definitions contained in this Warrant are applicable to the singular as well as the plural forms of such terms and
to the masculine as well as to the feminine and neuter genders of such term. Any agreement, instrument or statute defined or referred
to herein or in any agreement or instrument that is referred to herein means such agreement, instrument or statute as from time to time
amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes)
by succession of comparable successor statutes and references to all attachments thereto and instruments incorporated therein. Unless
otherwise specifically indicated, all references to “dollars” or “$” shall refer to, and all payments hereunder
shall be made in, the lawful money of the United States. References to a Person are also to its successors and permitted assigns. When
calculating the period of time between which, within which or following which any act is to be done or step taken pursuant to this Warrant,
the date that is the reference date in calculating such period shall be excluded (and, unless otherwise required by law, if the last day
of such period is not a Business Day, the period in question shall end on the next succeeding Business Day).
15. Withholding.
(a) On
or prior to the Original Issue Date (or in the case of any transfer, the date such transferee becomes the Holder), and thereinafter upon
reasonable request or as required under applicable laws, to the extent permitted by applicable laws, the Holder shall deliver to the Company
tax forms or other documentation (including any applicable Internal Revenue Service Form W-9) reasonably satisfactory to the Company
to establish an exemption from, or a reduction in the rate of, U.S. federal withholding tax that may apply to any payment for dividends
or any constructive dividend under Section 305(c) of the Code.
(b) Notwithstanding
anything to the contrary, any Holder that is not a “United States Person” (as defined in Section 7701(a)(30) of the Code)
(a “non-U.S. Holder”) agrees that, if such Holder is deemed to have received a distribution subject to U.S. federal
income tax under Section 305 of the Code as a result of an adjustment or the non-occurrence of an adjustment to the Exercise Price
or Warrant Share Number, then (i) the Company may, at its option, withhold or set off (or cause to be withheld or set off) any applicable
withholding taxes on behalf of such Holder against payments or deliveries under the Warrant, and (ii) if the Company pays any such
withholding taxes on behalf of such Holder, then the Company may, at its option, withhold from or set off such payments against payments
of cash or the delivery of the Warrant Shares or other consideration under the Warrant.
(c) The
Company shall notify, or shall cause to be notified, the applicable non-U.S. Holder of its intention to make any such withholding or deduction
the Company is required to make, as determined in good faith by the Company, hereunder reasonably in advance of doing so, and shall reasonably
consult with the Holder regarding the amount and imposition of any such withholding or deduction and use commercially reasonable efforts
to assist the Holder with claiming any exemption or reduction from such withholding or deduction allowable by applicable laws. The Company
shall provide, or shall cause to be provided, a receipt or other evidence of payment of any such taxes deducted or withheld to such non-U.S.
Holder within 30 days after making any deduction or withholding of such Taxes.
16. Inconsistent
Agreements. The Company shall not, on or after the date hereof, enter into any agreement with respect to its securities which conflicts
in any material respect with the rights granted to the Holders in this Warrant. The Company represents and warrants to the Holders that
the rights granted hereunder do not in any way conflict in any material respect with the rights granted to holders of the Company’s
securities under any other agreements.
[Signature pages follow]
20
IN WITNESS WHEREOF, the Company has duly executed
this Warrant.
Dated: [_____ __, 202_].
COMTECH TELECOMMUNICATIONS CORP.
By:
Name:
Title:
21
EXHIBIT A
FORM OF EXERCISE NOTICE
(To be executed by the registered holder hereof)
Reference is made to the Warrant to Purchase Common
Shares of Comtech Telecommunications Corp. No. W-[_] (the “Warrant”).
The undersigned hereby irrevocably exercises the
Warrant with respect to shares of common stock, par value $0.10 per share (the “Common Stock”), of Comtech Telecommunications
Corp., a Delaware corporation (the “Company”).
Check the applicable box:
¨
The undersigned is exercising the Warrant with respect to [_______] shares of Common Stock pursuant to a Cashless Exercise resulting in a delivery obligation of the Company to the Holder of [_______] shares of Common Stock, and makes payment of the Exercise Price with respect to such shares in full, all in accordance with the conditions and provisions of the Warrant applicable to such Cashless Exercise.
¨
The undersigned is exercising the Warrant with respect to [__________] shares of Common Stock pursuant to a Cash Exercise. [IF APPLICABLE: The undersigned hereby encloses, or has delivered by wire transfer to an account designated by the Company, $____ as payment of the Exercise Price.]
2. Capitalized
terms used but not otherwise defined in this Exercise Form shall have the meaning ascribed thereto in the Warrant.
Dated:
Please issue shares of Common Stock in the following
name and, if applicable, to the following address:
Issue to (print name):
Email Address:
DTC Details (if applicable):
Address for Stock Certificates (if applicable):
A-1
EXHIBIT B
ASSIGNMENT FORM
(To be executed by the registered holder hereof)
FOR VALUE RECEIVED, the undersigned
hereby sells, assigns and transfers unto the within Warrant and all rights evidenced thereby and does irrevocably constitute and appoint
, attorney, to transfer the said Warrant on the books of the within named corporation.
Dated:
Signature:
Address:
PARTIAL ASSIGNMENT
(To be executed by the registered holder hereof)
FOR VALUE RECEIVED, the undersigned
hereby sells, assigns and transfers unto the right to purchase Common Shares issuable upon exercise of the attached Warrant, and does
irrevocably constitute and appoint , attorney, to transfer that part of the said Warrant on the books of the within named corporation.
Dated:
Signature:
Address:
B-1
Schedule A
Black-Scholes Value
Remaining
Term
Number of calendar days from date of consummation or occurrence of the Major Transaction or Event of Default until the last date on which this Warrant may be exercised.
Interest
Rate
A risk-free interest rate corresponding to the US$ Treasury Yield + 0.50% for a period equal to the Remaining Term.
Cost to
Borrow
0%
Volatility
If the first public announcement of the Major Transaction is made at or prior to 4:00 p.m., New York City time, the arithmetic mean of the historical volatility for the 10, 30 and 50 Trading Day periods ending on the day prior to the date of such first public announcement, obtained from the HVT or similar function on Bloomberg. If the first public announcement of the Major Transaction is made after 4:00 p.m., New York City time, the arithmetic mean of the historical volatility for the 10, 30 and 50 Trading Day periods ending on the date of such first public announcement, obtained from the HVT or similar function on Bloomberg.
Stock Price
Major Transaction:
The greatest of (1) the per share closing
(last sale) price of the Common Shares on The Nasdaq Global Market, or, if that is not the principal trading market for the Common Shares,
such principal market on which the Common Shares are traded or listed (the “Closing Market Price”) on the Trading Day
immediately preceding the date on which the Major Transaction is consummated or otherwise occurs, (2) the first Closing Market Price
following the first public announcement of the Major Transaction, and (3) the Closing Market Price as of the date immediately preceding
the first public announcement of the Major Transaction.
Event of Default:
The greatest of (1) the Closing Market Price
on the Trading Day immediately preceding the date on which the Event of Default occurs, (2) the first Closing Market Price following
the first public announcement of the Event of Default, and (3) the Closing Market Price as of the date immediately preceding the
first public announcement of the Event of Default.
B-2
EX-10.1 — EXHIBIT 10.1
EX-10.1
Filename: tm2617923d1_ex10-1.htm · Sequence: 5
Exhibit 10.1
Execution Version
Consent
and Amendment No. 4 to CREDIT AGREEMENT
This
CONSENT AND AMENDMENT NO. 4 TO CREDIT AGREEMENT (this "Amendment") is entered into as of June 14,
2026, by and among COMTECH TELECOMMUNICATIONS CORP., a Delaware corporation ("Comtech", and together with those
additional entities that hereafter become parties to the Credit Agreement as Borrowers in accordance with the terms thereof, each, a "Borrower"
and individually and collectively, jointly and severally, the "Borrowers"), the Lenders identified on the signature pages hereof,
WINGSPIRE CAPITAL LLC, as revolving agent for the Revolving Lenders (in such capacity, together with its successors and assigns
in such capacity, "Revolving Agent"), and TCW Asset Management Company LLC,
as administrative agent for each member of the Lender Group (in such capacity, together with its successors and assigns in such capacity,
"Agent").
WHEREAS, Comtech, the Lenders,
Revolving Agent and Agent are parties to that certain Credit Agreement dated as of June 17, 2024 (as amended, restated, supplemented
or otherwise modified from time to time, the “Credit Agreement”);
WHEREAS,
Comtech intends to consummate the Specified Permitted Individual Disposition and, in connection therewith, execute and deliver, among
other things, (i) a Securities Purchase Agreement in substantially the form attached hereto as Annex A (without giving
effect to any amendment, supplement or other modification thereto that could reasonably be expected to be adverse in any material respect
to the interests of the Lenders or the Loan Parties, the “Purchase Agreement”), and (ii) the Ancillary Agreements
(as defined in the Purchase Agreement) and other documents and agreements in substantially the forms attached hereto as Annex B (without
giving effect to any amendment, supplement or other modification thereto that could reasonably be expected to be adverse in any material
respect to the interests of the Lenders or the Loan Parties, and together with the Purchase Agreement, collectively, the “Specified
Permitted Individual Disposition Documents”);
WHEREAS, the Credit Agreement
requires that the Specified Permitted Individual Disposition be on terms, and subject to documentation, reasonably acceptable to Agent;
WHEREAS,
in connection with the Specified Permitted Individual Disposition, Comtech intends to execute and deliver on or before the date of execution
of the Purchase Agreement a Subscription and Exchange Agreement in substantially the form attached hereto as Annex C (without
giving effect to any amendment, supplement or other modification thereto that could reasonably be expected to be adverse in any material
respect to the interests of the Lenders or the Loan Parties, the “Exchange Agreement”), which Exchange Agreement shall
provide for the exchange of the Specified Preferred Equity for a new series of convertible preferred stock of Comtech on or around the
consummation of the Specified Permitted Individual Disposition; and
WHEREAS, the Borrowers have
requested that (i) the Agent acknowledge that the form of, and the terms and conditions set forth in, the Specified Permitted Individual
Disposition Documents are acceptable, and (ii) the Agent, Revolving Agent and the Lenders party hereto agree to amend the Credit
Agreement in certain respects as more specifically set forth herein, and Agent, Revolving Agent and such Lenders have agreed to so amend
the Credit Agreement, in each case, on the terms and conditions set forth herein.
NOW THEREFORE, in consideration
of the premises and mutual agreements herein contained, the parties hereto agree as follows:
1. Defined
Terms. Unless otherwise defined herein, capitalized terms used herein and not otherwise defined shall have the meanings ascribed to
such terms in the Credit Agreement.
2. Consent
to Specified Permitted Individual Disposition.
(a) In
reliance upon the representations and warranties of Borrowers set forth in Section 7 below, and subject to the satisfaction
of the conditions to effectiveness set forth in Section 6 below, on and as of the Amendment No. 4 Effective Date, Agent
acknowledges that the form of, and the terms and conditions set forth in, the Specified Permitted Individual Disposition Documents are
acceptable and Agent, Revolving Agent and each Lender party hereto hereby consents to the consummation of the Specified Permitted Individual
Disposition pursuant to Specified Permitted Individual Disposition Documents. Notwithstanding anything to the contrary contained in any
Loan Document, each of Agent and Revolving Agent acknowledges that the consummation of the Specified Permitted Individual Disposition
pursuant to the Specified Permitted Individual Disposition Documents shall not directly result in a Change of Control under clauses (e) or
(f) of the definition thereof. Except as expressly set forth herein, the foregoing consent is limited in nature and shall not constitute
(a) a modification or alteration of the terms, conditions or covenants of the Credit Agreement or any other Loan Document or (b) a
waiver, release or limitation upon the exercise by Agent, Revolving Agent or any Lender of any of their respective rights, legal or equitable,
thereunder.
(b) Notwithstanding
anything contained in any Loan Document to the contrary and in reliance upon the representations and warranties of Borrowers set forth
in Section 7 below, and subject to the satisfaction of the conditions to effectiveness set forth in Section 6 below, on and
as of the Amendment No. 4 Effective Date, each of Agent and Revolving Agent hereby consents to Comtech Satellite Network Technologies
Corp.’s execution and delivery of, and its performance of its obligations under (including, without limitation, its exclusive licensing
of the Intellectual Property described therein), an exclusive technology license agreement in substantially the form attached as Exhibit C
hereto so long as, and only to the extent that, the Intellectual Property exclusively licensed therein is not material to the business
of the Loan Parties taken as a whole. Except as expressly set forth herein, the foregoing consent is limited in nature and shall not constitute
(a) a modification or alteration of the terms, conditions or covenants of the Credit Agreement or any other Loan Document or (b) a
waiver, release or limitation upon the exercise by Agent, Revolving Agent or any Lender of any of their respective rights, legal or equitable,
thereunder.
3. Amendments
to Credit Agreement.
(a) In
reliance upon the representations and warranties of Borrowers set forth in Section 7 below, and subject to the satisfaction
of the conditions to effectiveness set forth in Section 6 below, the Credit Agreement is hereby amended (a) to delete
red or green stricken text (indicated textually in the same manner as the following examples: stricken
text and stricken text) and (b) to add the blue or green double-underlined
text (indicated textually in the same manner as the following examples: double-underlined
text and double-underlined text), in each case, as set forth
in the conformed copy of the Credit Agreement attached hereto as Exhibit A.
-2-
(b) In
reliance upon the representations and warranties of Borrowers set forth in Section 7 below, and subject to the satisfaction
of the conditions to effectiveness set forth in Section 6 below, Schedules 5.1 and 5.2 to the Credit Agreement are hereby
amended (a) to delete red or green stricken text (indicated textually in the same manner as the following examples: stricken
text and stricken text) and (b) to add the blue or green double-underlined
text (indicated textually in the same manner as the following examples: double-underlined
text and double-underlined text), in each case, as set forth
in the conformed copy of Schedules 5.1 and 5.2 to the Credit Agreement attached hereto as Exhibit B.
4. Continuing
Effect. References in the Credit Agreement to "this Agreement" (and indirect references such as "hereunder", "hereby",
"herein", and "hereof") and in any Loan Document to the "Credit Agreement" shall be deemed to be references
to the Credit Agreement as modified hereby. Except as expressly set forth in Sections 2 and 3 of this Amendment, nothing
in this Amendment shall constitute a modification or alteration of the terms, conditions or covenants of the Credit Agreement or any other
Loan Document, or a waiver of any other terms or provisions thereof, and the Credit Agreement and the other Loan Documents shall remain
unchanged and shall continue in full force and effect, in each case as modified hereby. This Amendment is a Loan Document.
5. Reaffirmation
and Confirmation. Each Loan Party party hereto (and with respect to each Loan Party other than the Borrowers, by such Loan Party's
execution and delivery of the attached Consent and Reaffirmation) hereby ratifies, affirms, acknowledges and agrees that the Credit Agreement
and the other Loan Documents to which it is a party represent its valid, enforceable and collectible obligations, and further acknowledges
that there are no existing claims, defenses, personal or otherwise, or rights of setoff whatsoever with respect to the Credit Agreement
or any other Loan Document. Each Loan Party party hereto (and with respect to each Loan Party other than the Borrowers, by such Loan Party's
execution and delivery of the attached Consent and Reaffirmation) hereby agrees that this Amendment in no way acts as a release or relinquishment
of the Liens and rights securing payments of the Obligations. The Liens and rights securing payment of the Obligations as amended by this
Amendment are hereby ratified and confirmed by each Loan Party party hereto (and with respect to each Loan Party other than the Borrowers,
by such Loan Party's execution and delivery of the attached Consent and Reaffirmation) in all respects.
6. Conditions
to Effectiveness. The effectiveness of this Amendment is expressly conditioned upon the satisfaction of each of the following conditions
precedent in a manner satisfactory to Agent and Revolving Agent:
(a) Agent
and Revolving Agent shall have received a copy of this Amendment, and the attached Consent and Reaffirmation, executed and delivered by
Agent, Revolving Agent, the Lenders and the Loan Parties;
-3-
(b) Agent
and Revolving Agent shall have received a copy of an amendment to the Agreement Among Lenders, in form and substance reasonably satisfactory
to Agent and Revolving Agent and duly executed by Agent, Revolving Agent and the Lenders;
(c) Agent
and Revolving Agent shall have received a true, complete and correct copy of the executed Amendment No. 3 and Consent to the Specified
Preferred Subordinated Credit Agreement, in form and substance reasonably satisfactory to Agent and Revolving Agent;
(d) the
Borrowers shall have paid Agent and Revolving Agent for all Lender Group Expenses (including reasonable and documented out-of-pocket attorneys'
fees and expenses) payable to Agent and Revolving Agent, as applicable, on or prior to the closing date of this Amendment;
(e) Agent
shall have received an executed copy of that certain Fourth Amendment to Fee Letter, dated as of the date hereof, among Borrowers and
Agent;
(f) Revolving
Agent shall have received an executed copy of the Revolver Fee Letter;
(g) Agent
and Revolving Agent shall have received all other documents and legal matters in connection with the transactions contemplated by this
Amendment and such documents shall have been delivered or executed or recorded and shall be in form and substance satisfactory to Agent
and Revolving Agent;
(h) the
representations and warranties of the Loan Parties set forth in Section 7 below shall be true and correct as of the date
hereof;
(i) no
Default or Event of Default shall have occurred and be continuing on the date hereof or as of the effectiveness of this Amendment; and
(j) Agent
shall have received a copy of an amendment to the Specified Preferred Subordination Agreement, in form and substance reasonably satisfactory
to Agent and duly executed by Agent, the Specified Preferred Lenders and the Loan Parties.
7. Representations
and Warranties. In order to induce Agent, Revolving Agent and the Lenders to enter into this Amendment, each Loan Party party hereto
(and with respect to each Loan Party other than the Borrowers, by such Loan Party's execution and delivery of the attached Consent and
Reaffirmation) hereby represents and warrants to Agent, Revolving Agent and Lenders that:
(a) after
giving effect to this Amendment, each of the representations and warranties of each Loan Party or its Subsidiaries contained in the Credit
Agreement or in the other Loan Documents are true and correct in all material respects (except that such materiality qualifier shall not
be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) on and
as of the date hereof (except to the extent that such representations and warranties relate solely to an earlier date, in which case such
representations and warranties shall be true and correct in all material respects (except that such materiality qualifier shall not be
applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof)) as of such
earlier date;
-4-
(b) no
Default or Event of Default has occurred and is continuing;
(c) the
execution, delivery and performance of this Amendment has been duly authorized by all requisite corporate (or equivalent) action on the
part of such Loan Party and this Amendment has been duly executed and delivered by such Loan Party; and
(d) this
Amendment, the attached Consent and Reaffirmation and the Loan Documents, as amended hereby, constitute legal, valid and binding obligations
of the Loan Parties and are enforceable against such Loan Parties in accordance with their respective terms, except as enforcement may
be limited by equitable principles or by bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to or limiting creditors'
rights generally.
8. Amendment
Fee. In consideration of the agreements of Agent and the Term Loan Lenders contained herein, the Borrowers hereby agree to pay to
Agent, for the ratable benefit of the Term Loan Lenders, a fully-earned and non-refundable amendment fee of $580,155.17 (the "Term
Loan Amendment No. 4 Fee"), (x) $290,077.59 of which Term Loan Amendment No. 4 Fee (the "Initial Portion
of the Term Loan Amendment No. 4 Fee")shall be due and payable in cash on the date hereof and (y) $290,077.59 of which
Term Loan Amendment No. 4 Fee (the "Remaining Portion of the Term Loan Amendment No. 4 Fee") shall be due and
payable in cash on the on the earlier of (i) the date the Obligations become due and payable by acceleration or otherwise (including
as a result of acceleration by reason of an Event of Default arising under Section 8.4 or 8.5 of the Credit Agreement)
and (ii) December 15, 2026; provided, however, if the payment in full of the Obligations and termination of the
Commitments occurs on or prior to December 15, 2026, the Remaining Portion of the Term Loan Amendment No. 4 Fee shall be reduced
to zero and waived.
9. Conditions
Subsequent. The Borrowers agree that they shall, no later than June 15, 2026, pay:
(a) the
Agent, in cash, the Initial Portion of the Term Loan Amendment No. 4 Fee as set forth in Section 8 above; and
(b) the
Revolving Agent, in cash, the Amendment No. 4 Fee Revolver Fee (as defined in the Revolver Fee Letter).
The failure of the Loan Parties to comply with any covenant in this
Section 9 shall constitute an immediate Event of Default under the Credit Agreement (without any notice or grace or cure period).
10. Miscellaneous.
(a) Expenses.
The Borrowers agree to pay on demand all Lender Group Expenses of Agent, Revolving Agent and the Lenders in connection with the preparation,
negotiation, execution, delivery and administration of this Amendment in accordance with the terms of the Credit Agreement.
(b) Severability.
Each provision of this Amendment shall be severable from every other provision of this Amendment for the purpose of determining the legal
enforceability of any specific provision.
-5-
(c) Choice
of Law and Venue; Jury Trial Waiver. Without limiting the applicability of any other provision of the Credit Agreement or any other
Loan Document, the terms and provisions set forth in Section 12 of the Credit Agreement are expressly incorporated herein by reference;
provided, that, to the extent that (i) the reaffirmation and confirmation given by the Loan Parties in Section 5
hereof and (ii) the attached Consent and Reaffirmation executed and delivered by the Loan Parties relate to matters contained in
Loan Documents governed by, and construed in accordance with laws other than the state of New York, the laws governing those Loan Documents
shall apply thereto.
(d) Counterparts;
Electronic Execution. Without limiting the applicability of any other provision of the Credit Agreement or any other Loan Document,
the terms and provisions set forth in Section 17.7 of the Credit Agreement are expressly incorporated herein by reference.
11. Release.
In consideration of the agreements of Agent, Revolving Agent and the Lenders contained herein and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, each Loan Party, on behalf of itself and its respective successors and assigns,
hereby absolutely, unconditionally and irrevocably releases, remises and forever discharges Agent, Revolving Agent and the Lenders, and
their successors and assigns, and their present and former shareholders, affiliates, subsidiaries, divisions, predecessors, directors,
officers, attorneys, employees, agents and other representatives (Agent, Revolving Agent, each Lender and all such other Persons being
hereinafter referred to collectively as the "Releasees" and individually as a "Releasee"), of and from
all demands, actions, causes of action, suits, covenants, contracts, controversies, agreements, promises, sums of money, accounts, bills,
reckonings, damages and any and all other claims, counterclaims, defenses, rights of set-off, demands and liabilities whatsoever (individually,
a "Claim" and collectively, "Claims") of every name and nature, known as of the date of this Amendment,
both at law and in equity, which such Loan Party, or any of its respective successors or assigns may now or hereafter own, hold, have
or claim to have against the Releasees or any of them for, upon, or by reason of any circumstance, action, cause or thing whatsoever which
arises at any time on or prior to the day and date of this Amendment, in each case for or on account of, or in relation to, or in any
way in connection with any of the Credit Agreement, or any of the other Loan Documents or transactions thereunder or related thereto,
except with respect to any Claim against any Releasee not known to a Loan Party on the date hereof that a court of competent jurisdiction
finally determines to have resulted from the gross negligence or willful misconduct of such Releasee or its officers, directors, employees,
attorneys or agents.
[Signature Pages Follow]
-6-
IN WITNESS WHEREOF, the parties
hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized and delivered as of the date first
above written.
BORROWER:
COMTECH TELECOMMUNICATIONS CORP., a Delaware corporation, as a Borrower
By:
/s/ Michael A. Bondi
Name:
Michael A. Bondi
Title:
Chief Financial Officer
Signature Page to Consent and Amendment No. 4 to Credit Agreement
TCW ASSET MANAGEMENT COMPANY LLC, as Agent
By:
/s/ Suzanne Grosso
Name:
Suzanne Grosso
Title:
Managing Director
WINGSPIRE CAPITAL LLC, as Revolving Agent and a Revolving Lender
By:
/s/ Brian Long
Name:
Brian Long
Title:
Managing Director
TCW RESCUE FINANCING FUND II LP, as a Lender
By TCW Asset Management Company LLC, its Investment Advisor
By:
/s/ Suzanne Grosso
Name:
Suzanne Grosso
Title:
Managing Director
TCW WV Financing LLC, as a Lender
By TCW Asset Management Company LLC, its Collateral Manager
By:
/s/ Suzanne Grosso
Name:
Suzanne Grosso
Title:
Managing Director
Signature Page to Consent and Amendment No. 4 to Credit Agreement
CLOVER PRIVATE CREDIT OPPORTUNITIES ORIGINATION II LP, as a Lender
By: O'Connor Alternative Investments, LLC,
as Investment Manager
By:
/s/ Gregory Najarian
Name:
Gregory Najarian
Title:
Managing Director
By: O'Connor Alternative Investments, LLC,
as Investment Manager
By:
/s/ Jaeho Choi
Name:
Jaeho Choi
Title:
Managing Director
CLOVER ZERMATT O LLC, as a Lender
By: O'Connor Alternative Investments, LLC,
as Investment Manager
By:
/s/ Gregory Najarian
Name:
Gregory Najarian
Title:
Managing Director
By: O'Connor Alternative Investments, LLC,
as Investment Manager
By:
/s/ Jaeho Choi
Name:
Jaeho Choi
Title:
Managing Director
Signature Page to Consent and Amendment No. 4 to Credit Agreement
TRIFOLIUM O SPE LLC, as a Lender
By: O'Connor Alternative Investments, LLC,
as Investment Manager
By:
/s/ Gregory Najarian
Name:
Gregory Najarian
Title:
Managing Director
By: O'Connor Alternative Investments, LLC,
as Investment Manager
By:
/s/ Jaeho Choi
Name:
Jaeho Choi
Title:
Managing Director
Signature Page to Consent and Amendment No. 4 to Credit Agreement
CEDAR CREST 2022-1 LLC, as a Lender
By:
/s/ Donald J. Puglisi
Name:
Donald J. Puglisi
Title:
Manager
SHAWNEE 2024-1, LLC, as a Lender
By:
/s/ Donald J. Puglisi
Name:
Donald J. Puglisi
Title:
Manager
EDCF I ASSETCO, LLC, as a Term Loan Lender
By: Eldridge Diversified Credit Fund Holdco, LP, its sole member
By: Eldridge Diversified Credit Fund HoldCo GP, LLC, its general partner
By: Eldridge GP, LLC, its sole member
By:
/s/ Nicholas Sandler
Name:
Nicholas Sandler
Title:
Co-President
EDCF II ASSETCO, LLC, as a Term Loan Lender
By: Eldridge Diversified Credit Fund II GP, LP, its managing member
By: Eldridge GP, LLC, its general partner
By:
/s/ Nicholas Sandler
Name:
Nicholas Sandler
Title:
Co-President
Signature Page to Consent and Amendment No. 4 to Credit Agreement
EDCF II OFFSHORE ASSETCO, LLC, as a Term Loan Lender
By: Eldridge Diversified Credit Fund II GP, LP, its managing member
By: Eldridge GP, LLC, its general partner
By:
/s/ Nicholas Sandler
Name:
Nicholas Sandler
Title:
Co-President
RNF ASSETCO, LLC, as a Term Loan Lender
By: Eldridge Diversified Credit Fund RNF Master LP, its sole member
By: Eldridge Diversified Credit RNF GP, LP, its general partner
By: Eldridge GP, LLC, its general partner
By:
/s/ Nicholas Sandler
Name:
Nicholas Sandler
Title:
Co-President
Signature Page to Consent and Amendment No. 4 to Credit Agreement
CONSENT
AND REAFFIRMATION
Each
Guarantor hereby (i) acknowledges receipt of a copy of the foregoing Consent and Amendment No. 4 to Credit Agreement
(the “Amendment”; capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such
terms in the Amendment), (ii) consents to each Borrower's execution and delivery of the Amendment; (iii) agrees to be bound
by the Amendment (including, without limitation, Section 11 thereof); (iv) affirms that nothing contained in the Amendment
shall modify in any respect whatsoever any Loan Document to which it is a party except as expressly set forth therein; and (v) ratifies,
affirms, acknowledges and agrees that each of the Loan Documents to which such Guarantor is a party represents the valid, enforceable
and collectible obligations of such Guarantor, except as enforcement may be limited by equitable principles or by bankruptcy, insolvency,
reorganization, moratorium, or similar laws relating to or limiting creditors' rights generally, and further acknowledges that there are
no existing claims, defenses, personal or otherwise, or rights of setoff whatsoever with respect to the Credit Agreement or any other
such Loan Document. Each Guarantor hereby agrees that the Amendment in no way acts as a release or relinquishment of the Liens and rights
securing payments of the Obligations as amended by the Amendment. The Liens and rights securing payment of the Obligations as amended
by the Amendment are hereby ratified and confirmed by such Guarantor in all respects. Although each Guarantor has been informed of the
matters set forth herein and has acknowledged and agreed to same, each Guarantor understands that none of Agent, Revolving Agent or any
Lender has any obligation to inform any Guarantor of such matters in the future or to seek any Guarantor's acknowledgment or agreement
to future amendments, waivers or consents, and nothing herein shall create such a duty.
Without limiting the applicability
of any other provision of the Credit Agreement or any other Loan Document, the terms and provisions set forth in (i) Section 17.7
and (ii) Section 12 of the Credit Agreement are expressly incorporated herein by reference; provided that, to the extent
that (i) the reaffirmation and confirmation given by the Loan Parties in Section 5 of the Amendment and (ii) this
Consent and Reaffirmation relate to matters contained in Loan Documents governed by, and construed in accordance with laws other than
the state of New York, the laws governing those Loan Documents shall apply thereto.
[Signature Pages Follow]
IN WITNESS WHEREOF, each of
the undersigned has executed this Consent and Reaffirmation on and as of the date of the Amendment.
COMTECH SATELLITE NETWORK TECHNOLOGIES, INC., a Delaware corporation
By:
/s/ Michael A. Bondi
Name:
Michael A. Bondi
Title:
Chief Financial Officer and Treasurer
SOLACOM TECHNOLOGIES (US), INC., a Delaware corporation
By:
/s/ Michael A. Bondi
Name:
Michael A. Bondi
Title:
Chief Financial Officer and Treasurer
NG-911, INC., an Iowa corporation
By:
/s/ Michael A. Bondi
Name:
Michael A. Bondi
Title:
Chief Financial Officer and Treasurer
TELECOMMUNICATIONS SYSTEMS, INC., a Maryland corporation
By:
/s/ Michael A. Bondi
Name:
Michael A. Bondi
Title:
Chief Financial Officer and Treasurer
COMTECH SYSTEMS, INC., a Delaware corporation
By:
/s/ Michael A. Bondi
Name:
Michael A. Bondi
Title:
Chief Financial Officer and Treasurer
Consent and Reaffirmation Signature Page to Consent and Amendment
No. 4 to Credit Agreement
MICRODATA, LLC, a Maryland limited liability company
By:
/s/ Donald E. Walther
Name:
Donald E. Walther
Title:
Secretary
NEXTGEN COMMUNICATIONS, INC., a Maryland corporation
By:
/s/ Donald E. Walther
Name:
Donald E. Walther
Title:
Secretary
NEXTGEN COMMUNICATIONS, INC., a Virginia corporation
By:
/s/ Donald E. Walther
Name:
Donald E. Walther
Title:
Secretary
COMTECH NEXTGEN LLC, a Delaware limited liability company
By:
/s/ Michael A. Bondi
Name:
Michael A. Bondi
Title:
Chief Financial Officer and Treasurer
COMTECH MOBILE DATACOM LLC, a Delaware limited liability company
By:
/s/ Michael A. Bondi
Name:
Michael A. Bondi
Title:
Chief Accounting Officer and Treasurer
Consent and Reaffirmation Signature Page to Consent and Amendment
No. 4 to Credit Agreement
COMTECH TACTICAL EUROPE LLC, a Delaware limited liability company
By:
/s/ Michael A. Bondi
Name:
Michael A. Bondi
Title:
Chief Financial Officer and Treasurer
MICRODATA GIS, INC., a Vermont corporation
By:
/s/ Donald E. Walther
Name:
Donald E. Walther
Title:
Secretary
MAPLE ACQUISITION LLC, a Maryland limited liability company
By:
/s/ Donald E. Walther
Name:
Donald E. Walther
Title:
Secretary
OLIVE ACQUISITION LLC, a Maryland limited liability company
By:
/s/ Donald E. Walther
Name:
Donald E. Walther
Title:
Secretary
ANGELS ACQUISITION CORP., a Delaware corporation
By:
/s/ Donald E. Walther
Name:
Donald E. Walther
Title:
Secretary
Consent and Reaffirmation Signature Page to Consent and Amendment
No. 4 to Credit Agreement
COMTECH AEROASTRO, INC., a Delaware corporation
By:
/s/ Donald E. Walther
Name:
Donald E. Walther
Title:
Secretary
COMTECH ANTENNA SYSTEMS, INC., a Delaware corporation
By:
/s/ Donald E. Walther
Name:
Donald E. Walther
Title:
Secretary
COMTECH COMMUNICATIONS CORPORATION, a Delaware corporation
By:
/s/ Donald E. Walther
Name:
Donald E. Walther
Title:
Secretary
COMTECH COMSTREAM, INC., a Delaware corporation
By:
/s/ Donald E. Walther
Name:
Donald E. Walther
Title:
Secretary
COMTECH TOLT TECHNOLOGIES, INC., a Delaware corporation
By:
/s/ Donald E. Walther
Name:
Donald E. Walther
Title:
Secretary
Consent and Reaffirmation Signature Page to Consent and Amendment
No. 4 to Credit Agreement
TIERNAN RADYNE COMSTREAM, INC., a Delaware corporation
By:
/s/ Donald E. Walther
Name:
Donald E. Walther
Title:
Secretary
NETWORKS IN MOTION, INC., a Delaware corporation
By:
/s/ Donald E. Walther
Name:
Donald E. Walther
Title:
Secretary
SOLVERN INNOVATIONS, INC., a Maryland corporation
By:
/s/ Donald E. Walther
Name:
Donald E. Walther
Title:
Secretary
CSNTI PRODUCTS CO, LLC, a Delaware limited liability company
by its sole member
Comtech Satellite Network Technologies Inc
By:
/s/ Michael A. Bondi
Name:
Michael A. Bondi
Title:
Chief Financial Officer and Assistant Secretary
Consent and Reaffirmation Signature Page to Consent and Amendment
No. 4 to Credit Agreement
CMTL SERVICES CO, LLC, a Texas limited liability company
by its sole member
Comtech Telecommunications Corp.
By:
/s/ Michael A. Bondi
Name:
Michael A. Bondi
Title:
Chief Financial Officer
Consent and Reaffirmation Signature Page to Consent and Amendment
No. 4 to Credit Agreement
COMTECH SATELLITE NETWORK TECHNOLOGIES CORP., a Canadian federal corporation
By:
/s/ Michael A. Bondi
Name:
Michael A. Bondi
Title:
Chief Accounting Officer
COMTECH SOLACOM TECHNOLOGIES, INC., a Canadian federal corporation
By:
/s/ Michael A. Bondi
Name:
Michael A. Bondi
Title:
Chief Accounting Officer and Assistant Secretary
COMTECH UK HOLDINGS LIMITED, a United Kingdom Limited Corporation
By:
/s/ Michael A. Bondi
Name:
Michael A. Bondi
Title:
Director
CGC TECHNOLOGY LIMITED, a United Kingdom Limited Corporation
By:
/s/ Michael A. Bondi
Name:
Michael A. Bondi
Title:
Director
Consent and Reaffirmation Signature Page to Consent and Amendment
No. 4 to Credit Agreement
ANNEX A
Securities Purchase Agreement
(see attached)
ANNEX B
Other Specified Permitted Individual Disposition
Documents
Annex B-1: Form of Escrow Agreement
Annex B-2: Form of Government Contract Transition Agreement
Annex B-3: Form of Transition Services Agreement
Annex B-4: Form of Intellectual Property and Information Technology
Assignment Agreement
ANNEX B-1
Form of
Escrow Agreement
(see attached)
ANNEX B-2
Form of
Government Contract Transition Agreement
(see attached)
ANNEX B-3
Form of
Transition Services Agreement
(see attached)
ANNEX B-4
Form of
Intellectual Property and Information Technology Assignment Agreement
(see attached)
ANNEX C
Subscription and Exchange Agreement
(see attached)
EXHIBIT A
Amended Credit Agreement
(see attached)
EXHIBIT A
TO CONSENT AND AMENDMENT NO. 34
TO CREDIT AGREEMENT
THE
FOLLOWING INFORMATION IS SUPPLIED SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES. THE TERM LOAN UNDER THIS AGREEMENT ARE TREATED AS HAVING
BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID")
WITHIN THE MEANING OF SECTION 1273 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "IRC"),
AND THIS LEGEND IS REQUIRED BY SECTION 1275(c) OF THE IRC. BEGINNING NO LATER THAN JUNE 17, 2024, A LENDER MAY, UPON REQUEST,
OBTAIN FROM THE BORROWERS THE ISSUE PRICE, ISSUE DATE, AMOUNT OF OID AND YIELD TO MATURITY OF EACH TERM LOAN MADE BY SUCH LENDER
BY CONTACTING MICHAEL BONDI, CHIEF FINANCIAL OFFICER AT (631) 962-7106 68 South Service Road,
Suite 230, Melville, New York 11747.
CREDIT AGREEMENT
by and among
TCW ASSET MANAGEMENT COMPANY LLC,
as Agent,
WINGSPIRE CAPITAL LLC,
as Revolving Agent,
THE LENDERS THAT ARE PARTIES HERETO
as the Lenders,
and
COMTECH TELECOMMUNICATIONS CORP.,
and
THE OTHER BORROWERS THAT ARE PARTIES
FROM TIME TO TIME HERETO,
collectively, as the Borrowers
Dated as of June 17, 2024
TABLE OF CONTENTS
Page
1.
DEFINITIONS AND CONSTRUCTION
1
1.1.
Definitions
1
1.2.
Accounting Terms
6566
1.3.
Code; PPSA
67
1.4.
Construction
6667
1.5.
Time References
6768
1.6.
Schedules and Exhibits
6768
1.7.
Divisions
6768
1.8.
Rates
6769
1.9.
Quebec Interpretation
6869
2.
LOANS AND TERMS OF PAYMENT
6970
2.1.
Revolving Loans
6970
2.2.
Term Loan
71
2.3.
Borrowing Procedures and Settlements
7071
2.4.
Payments; Reductions of Commitments; Prepayments
7576
2.5.
Promise to Pay; Promissory Notes
8283
2.6.
Interest Rates; Rates, Payments,
and Calculations
8384
2.7.
Crediting Payments
8485
2.8.
Designated Account
8586
2.9.
[Reserved]
8586
2.10.
Fees
8586
2.11.
[Reserved]
8587
2.12.
SOFR Option
8587
2.13.
Capital Requirements
8991
2.14.
[Reserved]
9192
2.15.
Joint and Several Liability of Borrowers
9192
3.
CONDITIONS; TERM OF AGREEMENT
9496
3.1.
Conditions Precedent to the Initial Extension
of Credit
9496
3.2.
Conditions Precedent to all Extensions of
Credit
9496
3.3.
Maturity
9596
3.4.
Effect of Maturity
9596
3.5.
Early Termination by Borrowers
9597
3.6.
Post-Closing Covenants
9697
-i-
TABLE OF CONTENTS
(continued)
Page
4.
REPRESENTATIONS AND WARRANTIES
9697
4.1.
Due Organization and Qualification; Subsidiaries
9697
4.2.
Due Authorization; No Conflict
9798
4.3.
Governmental Consents
9799
4.4.
Binding Obligations; Perfected Liens
9899
4.5.
Title to Assets; No Encumbrances
9899
4.6.
Litigation
98100
4.7.
Compliance with Laws
99100
4.8.
No Material Adverse Effect
99100
4.9.
Solvency
99100
4.10.
Employee Benefits
99101
4.11.
Environmental Condition
100102
4.12.
Complete Disclosure
101102
4.13.
Patriot Act, etc.
101103
4.14.
[Reserved]
102103
4.15.
Payment of Taxes
102103
4.16.
Margin Stock
102103
4.17.
Governmental Regulation
102103
4.18.
OFAC; Sanctions; Anti-Corruption Laws; Anti-Money
Laundering Laws
102104
4.19.
Employee and Labor Matters
103104
4.20.
[Reserved]
103104
4.21.
Leases
103105
4.22.
[Reserved]
103105
4.23.
[Reserved]
103105
4.24.
Location of Inventory
103105
4.25.
Inventory Records
104105
4.26.
[Reserved]
104105
4.27.
Hedge Agreements
104105
4.28.
Material Contracts
104105
4.29.
Non-Loan Party Subsidiaries
104105
4.30.
Centre of Main Interests
104105
-ii-
TABLE OF CONTENTS
(continued)
Page
5.
AFFIRMATIVE COVENANTS
104106
5.1.
Financial Statements, Reports, Certificates
104106
5.2.
Reporting
105106
5.3.
Existence
105106
5.4.
Maintenance of Properties
105106
5.5.
Taxes
105106
5.6.
Insurance
105106
5.7.
Inspection
106107
5.8.
Compliance with Laws
107108
5.9.
Environmental
107108
5.10.
Disclosure Updates
109110
5.11.
Formation of Subsidiaries
109110
5.12.
Further Assurances
110111
5.13.
Lender Meetings; Board Materials; Board Observation
Rights
111111
5.14.
Location of Inventory; Chief Executive Office
112112
5.15.
OFAC; Sanctions; Anti-Corruption Laws; Anti-Money
Laundering Laws
112113
5.16.
Material Contracts
113113
5.17.
Compliance with ERISA and the IRC
113113
5.18.
UK Pensions
113113
5.19.
People with Significant Control Regime
113114
5.20.
Financial Advisor
113114
5.21.
WeeklyMonthly
Call.
114114
5.22.
Independent Directors
114114
5.23.
Transformation Plan
115115
5.24.
Management Incentive Plans
115115
6.
NEGATIVE COVENANTS
115115
6.1.
Indebtedness
115115
6.2.
Liens
115115
6.3.
Restrictions on Fundamental Changes
115116
-iii-
TABLE OF CONTENTS
(continued)
Page
6.4.
Disposal of Assets
116116
6.5.
Nature of Business
116116
6.6.
Prepayments, Payments of Certain Indebtedness
and Amendments
116117
6.7.
Restricted Payments
117117
6.8.
Accounting Methods
118119
6.9.
Investments
118119
6.10.
Transactions with Affiliates
119119
6.11.
Use of Proceeds
120120
6.12.
Limitation on Issuance of Equity Interests
120120
6.13.
Inventory with Bailees
120121
6.14.
Sale Leaseback Transactions
120121
6.15.
Employee Benefits
121121
6.16.
Non-Loan Party Subsidiaries
121121
6.17.
Canadian Pension Matters
121122
6.18.
Anti-Layering
121122
6.19.
Tax Classification
122122
7.
FINANCIAL COVENANTS
122122
8.
EVENTS OF DEFAULT
123123
8.1.
Payments
123123
8.2.
Covenants
123124
8.3.
Judgments
124124
8.4.
Voluntary Bankruptcy
124124
8.5.
Involuntary Bankruptcy
124124
8.6.
Default Under Other Agreements
124125
8.7.
Representations
124125
8.8.
Guaranty
125125
8.9.
Security Documents
125125
8.10.
Loan Documents
125125
8.11.
Change of Control
125126
8.12.
ERISA
125126
8.13.
Senior Indebtedness
126126
8.14.
Material Contracts
126126
8.15.
Conduct of Business
126126
-iv-
TABLE OF CONTENTS
(continued)
Page
9.
RIGHTS AND REMEDIES
126127
9.1.
Rights and Remedies
126127
9.2.
Remedies Cumulative
127127
9.3.
Curative Equity
127128
10.
WAIVERS; INDEMNIFICATION
129129
10.1.
Demand; Protest; etc.
129129
10.2.
The Lender Group's Liability for Collateral
129129
10.3.
Indemnification
129130
11.
NOTICES
130131
12.
CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER
132133
13.
ASSIGNMENTS AND PARTICIPATIONS; SUCCESSORS
134134
13.1.
Assignments and Participations
134134
13.2.
Successors
138139
13.3.
Interlender Matters
138139
14.
AMENDMENTS; WAIVERS
139139
14.1.
Amendments and Waivers
139139
14.2.
Replacement of Certain Lenders
141141
14.3.
No Waivers; Cumulative Remedies
141142
15.
AGENT; THE LENDER GROUP
142143
15.1.
Appointment and Authorization of Agent and
Revolving Agent
142143
15.2.
Delegation of Duties
143144
15.3.
Liability of Agent
143144
15.4.
Reliance by Agent and Revolving Agent
144145
15.5.
Notice of Default or Event of Default
144145
15.6.
Credit Decision
145146
15.7.
Costs and Expenses; Indemnification
145146
15.8.
Agent and Revolving Agent in Individual Capacity
146147
15.9.
Successor Agent and Revolving Agent
147147
15.10.
Lender in Individual Capacity
147148
15.11.
Collateral Matters
148148
15.12.
Restrictions on Actions by Lenders; Sharing
of Payments
150149
-v-
TABLE OF CONTENTS
(continued)
Page
15.13.
Agency for Perfection
150150
15.14.
Payments by Agent to the Lenders
150150
15.15.
Concerning the Collateral and Related Loan
Documents
151150
15.16.
[Reserved]
151150
15.17.
Several Obligations; No Liability
151150
15.18.
Appointment of Agent as UK security trustee
151151
16.
WITHHOLDING TAXES
154154
16.1.
Payments
154154
16.2.
Exemptions
155155
16.3.
Reductions
157157
16.4.
Refunds
158157
16.5.
Administrative Agent
158158
17.
GENERAL PROVISIONS
158158
17.1.
Effectiveness
158158
17.2.
Section Headings
159158
17.3.
Interpretation
159158
17.4.
Severability of Provisions
159158
17.5.
Bank Product Providers
159158
17.6.
Debtor-Creditor Relationship
160159
17.7.
Counterparts; Electronic Execution
160159
17.8.
Revival and Reinstatement of Obligations
160160
17.9.
Confidentiality
161160
17.10.
Survival
162162
17.11.
Patriot Act; Due Diligence
163162
17.12.
Integration
163163
17.13.
Comtech as Agent for Borrowers
163163
17.14.
Acknowledgement and Consent to Bail-In of
Affected Financial Institutions
164164
17.15.
Canadian Anti-Money Laundering Legislation
165164
17.16.
Acknowledgement Regarding Any Supported QFCs
165166
17.17.
Currency Indemnity
166166
17.18.
Erroneous Payments
166166
17.19.
UK Loan Party Limitations
169168
-vi-
EXHIBITS AND SCHEDULES
Exhibit A-1
Form of Assignment and Acceptance
Exhibit B-1
Form of Borrowing Base Certificate
Exhibit C-1
Form of Compliance Certificate
Exhibit D-1
Form of Notice of Borrowing
Exhibit J-1
Form of Joinder
Exhibit L-1
Form of SOFR Notice
Exhibit P-1
Form of Perfection Certificate
Exhibit P-2
Form of PIK Election Notice
Exhibits T-1 to T-4
Forms of U.S. Tax Compliance Certificates
Schedule A-1
Agent's Account
Schedule A-2
Revolving Agent's Account
Schedule A-3
Authorized Persons
Schedule C-1
Commitments
Schedule D-1
Designated Account
Schedule P-1
Permitted Indebtedness
Schedule P-2
Permitted Investments
Schedule P-3
Permitted Liens
Schedule R-1
Real Property Collateral
Schedule 3.1
Conditions Precedent
Schedule 3.6
Post-Closing Covenants
Schedule 4.1(b)
Capitalization of Loan Parties
Schedule 4.1(c)
Capitalization of Loan Parties' Subsidiaries
Schedule 4.1(d)
Subscriptions, Options, Warrants, Calls
Schedule 4.6(b)
Litigation
Schedule 4.10
Employee Benefits
Schedule 4.11
Environmental Matters
Schedule 4.24
Location of Inventory
Schedule 4.28
Material Contracts
Schedule 5.1
Financial Statements, Reports, Certificates
Schedule 5.2
Collateral Reporting
Schedule 6.5
Nature of Business
-vii-
CREDIT AGREEMENT
THIS
CREDIT AGREEMENT, is entered into as of June 17, 2024 by and among the lenders identified on the signature pages hereof
(each of such lenders, together with its successors and permitted assigns, is referred to hereinafter as a "Lender",
as that term is hereinafter further defined), TCW ASSET MANAGEMENT COMPANY LLC, as administrative agent for each member of the
Lender Group (in such capacity, together with its successors and assigns in such capacity, "Agent"), WINGSPIRE CAPITAL
LLC, as revolving agent for the Revolving Lenders (in such capacity, together with its successors and assigns in such capacity, "Revolving
Agent"), COMTECH TELECOMMUNICATIONS CORP., a Delaware corporation ("Comtech"; and together with and those
additional entities that hereafter become parties hereto as Borrowers in accordance with the terms hereof by executing the form of Joinder
attached hereto as Exhibit J-1, each, a "Borrower" and individually and collectively, jointly and severally,
the "Borrowers").
The parties agree as follows:
1. DEFINITIONS AND CONSTRUCTION.
1.1. Definitions.
As used in this Agreement, the following terms shall have the following definitions:
"Account" means
an account (as that term is defined in the Code or the PPSA, as applicable).
"Account Debtor"
means any Person who is obligated on an Account, chattel paper, or a general intangible.
"Accounting Changes"
means changes in accounting principles required by the promulgation of any rule, regulation, pronouncement or opinion by the Financial
Accounting Standards Board of the American Institute of Certified Public Accountants (or successor thereto or any agency with similar
functions).
"Acquired Indebtedness"
means Indebtedness of a Person whose assets or Equity Interests are acquired by a Loan Party or any of its Subsidiaries in a Permitted
Acquisition; provided, that such Indebtedness (a) is either purchase money Indebtedness or a Capital Lease with respect to
Equipment or mortgage financing with respect to Real Property, (b) was in existence prior to the date of such Permitted Acquisition,
and (c) was not incurred in connection with, or in contemplation of, such Permitted Acquisition.
"Acquisition"
means (a) the purchase or other acquisition by a Person or its Subsidiaries of all or substantially all of the assets of (or any
division or business line of) any other Person, or (b) the purchase or other acquisition (whether by means of a merger, amalgamation,
consolidation, or otherwise) by a Person or its Subsidiaries of all of the Equity Interests of any other Person.
"Additional Documents"
has the meaning specified therefor in Section 5.12 of this Agreement.
"Administrative Borrower"
has the meaning specified therefor in Section 17.13 of this Agreement.
"Administrative Questionnaire"
has the meaning specified therefor in Section 13.1(a)(ii)(G) of this Agreement.
"Affected Financial
Institution" means (a) any EEA Financial Institution or (b) any UK Financial Institution.
"Affected Lender"
has the meaning specified therefor in Section 2.13(b) of this Agreement.
"Affiliate"
means, as applied to any Person, any other Person who controls, is controlled by, or is under common control with, such Person.
For purposes of this definition, "control" means the possession, directly or indirectly through one or more intermediaries,
of the power to direct the management and policies of a Person, whether through the ownership of Equity Interests, by contract, or otherwise;
provided, that for purposes of Section 6.10 of this Agreement: (a) if any Person owns directly or indirectly 10%
or more of the Equity Interests having ordinary voting power for the election of directors or other members of the governing body of a
Person or 10% or more of the partnership or other ownership interests of a Person (other than as a limited partner of such Person), then
both such Persons shall be Affiliates of each other, (b) each director (or comparable manager) of a Person shall be deemed to be
an Affiliate of such Person, and (c) each partnership in which a Person is a general partner shall be deemed an Affiliate of such
Person.
"Agent" has
the meaning specified therefor in the preamble to this Agreement.
"Agent Assignee"
has the meaning specified therefor in Section 17.18(d) of this Agreement.
"Agent-Related Persons"
means Agent and Revolving Agent, together with their respective Affiliates, officers, directors, employees, attorneys, and agents.
"Agent's Account"
means the Deposit Account of Agent identified on Schedule A-1 to this Agreement (or such other Deposit Account of Agent that has
been designated as such, in writing, by Agent to Borrowers and the Lenders).
"Agent's Liens"
means the Liens granted by each Loan Party or its Subsidiaries to Agent under the Loan Documents and securing the Obligations.
"Agreement"
means this Credit Agreement, as amended, restated, amended and restated, supplemented or otherwise modified from time to time.
"Agreement Among Lenders"
means that certain Agreement Among Lenders, dated as of the Closing Date, among Agent, Revolving Agent and the Lenders, as the same may
be amended, restated, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms thereof
and hereof.
-2-
"Amendment No. 1
Availability Block Amount" means $27,500,000.
"Amendment No. 1
Closing Date" means October 17, 2024.
"Amendment
No. 1 Revolver Fee Letter" means that certain letter agreement, dated as of the Amendment No. 1 Closing Date, by and
between Comtech and Revolving Agent with respect to, among other things, fees to be paid to Revolving Agent for the benefit of Revolving
Lenders on the Amendment No. 1 Closing Date.
"Amendment
No. 2 Revolver Fee Letter" means that certain letter agreement, dated as of the Amendment No. 2 Closing Date, by and
between Comtech and Revolving Agent with respect to, among other things, fees to be paid to Revolving Agent for the benefit of Revolving
Lenders on the Amendment No. 2 Closing Date.
"Amendment No. 2
Closing Date" means March 3, 2025.
"Amendment No. 3
Closing Date" means July 21, 2025.
"Amendment
No. 3 Revolver Fee Letter" means that certain letter agreement, dated as of the Amendment No. 3 Closing Date, by and
between Comtech and Revolving Agent with respect to, among other things, fees to be paid to Revolving Agent for the benefit of Revolving
Lenders on the Amendment No. 3 Closing Date.
"Amendment
No. 4" means Consent and Amendment No. 4 to Credit Agreement, dated as of the Amendment No. 4 Closing Date, by and
among the Borrowers, the Lenders party thereto, the Revolving Agent and the Agent.
"Amendment
No. 4 Closing Date" means June 14, 2026.
"Anti-Corruption Laws"
means the FCPA, the U.K. Bribery Act of 2010, as amended, and all other applicable laws and regulations or ordinances concerning or relating
to bribery, money laundering or corruption in any jurisdiction in which any Loan Party or any of its Subsidiaries or Affiliates is located
or is doing business.
"Anti-Money Laundering
Laws" means the applicable laws or regulations in any jurisdiction in which any Loan Party or any of its Subsidiaries or Affiliates
is located or is doing business that relates to money laundering, any predicate crime to money laundering, or any financial record keeping
and reporting requirements related thereto.
-3-
"Applicable Margin"
means, as of any date of determination and with respect to Base Rate Loans or SOFR Loans, as applicable:
(a) With
respect to any Revolving Loan (or any portion thereof):
(i) The
applicable margin set forth in the following table that corresponds to the Average Revolver Usage during the immediately preceding quarter
as certified and delivered to Agent and Revolving Agent pursuant to Section 5.1 of this Agreement and acceptable to Revolving
Agent (the "Average Revolver Usage Calculation"); provided, that for the period from the Closing Date through
the date Agent and Revolving Agent receive the Average Revolver Usage Calculation in respect of the testing period ending October 31,
2024, the Applicable Margin with respect to any Revolving Loan (or any portion thereof) shall be set at the margin in the row styled "Level
II"; provided further, that any time an Event of Default has occurred and is continuing, the Applicable Margin shall be set
at the margin in the row styled "Level III":
Level
Average Revolver Usage
Applicable Margin Relative
to Base Rate Loans
(the "Revolving Loan Base
Rate Margin")
Applicable Margin
Relative to SOFR Loans
(the "Revolving Loan SOFR
Margin")
I
If the Average Revolver Usage is less than $32,500,000
4.75 percentage points
5.75 percentage points
II
If the Average Revolver Usage is greater than or equal to $32,500,000 and less than $50,000,000
5.00 percentage points
6.00 percentage points
III
If the Average Revolver Usage is greater than or equal to $50,000,000
5.25 percentage points
6.25 percentage points
(ii) Except
as set forth in the foregoing proviso, the Applicable Margin with respect to any Revolving Loan (or any portion thereof) shall be based
upon the most recent Average Revolver Usage Calculation, which will be calculated as of the end of each fiscal quarter; provided,
that during any Going Concern Period, each applicable Revolving Loan Base Rate Margin and Revolving Loan SOFR Margin shall be increased
by 0.25 percentage points until the occurrence of a Going Concern Rescission Event. Except as set forth in the foregoing proviso, the
Applicable Margin with respect to any Revolving Loan (or any portion thereof) shall be re-determined quarterly on the first Business Day
of the month following the date of delivery to Agent and Revolving Agent of the certified calculation of the Average Revolver Usage for
each fiscal quarter pursuant to Section 5.1 of this Agreement; provided, that if Borrowers fail to provide such certification
when such certification is due, the Applicable Margin with respect to any Revolving Loan (or any portion thereof) shall be set at the
margin in the row styled "Level III" as of the first day of the month following the date on which the certification was required
to be delivered. In the event that the information regarding the Average Revolver Usage contained in any certificate delivered pursuant
to Section 5.1 of this Agreement is shown to be inaccurate, and such inaccuracy, if corrected, would have led to the application
of a higher Applicable Margin for any period (an "Applicable Period") than the Applicable Margin with respect to any
Revolving Loan (or any portion thereof) actually applied for such Applicable Period, then (i) Borrowers shall immediately deliver
to Agent a correct certificate for such Applicable Period, (ii) the Applicable Margin with respect to any Revolving Loan (or any
portion thereof) shall be determined as if the correct Applicable Margin (as set forth in the table above) were applicable for such Applicable
Period, and (iii) Borrowers shall immediately deliver to Agent full payment in respect of the accrued additional interest as a result
of such increased Applicable Margin for such Applicable Period, which payment shall be promptly applied by Agent to the affected Obligations;
and
-4-
(b) With
respect to any Term Loan Obligation:
(ib) For
the period from the Amendment No. 1 Closing Date
through but not including the first Business Day of the month following the Term Loan Pricing Reset Trigger Date (such period, the "Initial
Pricing Period")With respect to
any Term Loan Obligation, (Ai) with
respect to any Base Rate Loan, 9.50%, and (Bii) with
respect to any SOFR Loan, 10.50%.
(ii) For
the period after and including the first Business Day of the month following the Term Loan Pricing Reset Trigger Date (such period, the
"Pricing Grid Period"), the applicable margin set
forth in the following table that corresponds to the most recent Net
Leverage Ratio calculation delivered to Agent pursuant to Section 5.1
of this Agreement (the "Net
Leverage Ratio Calculation"); provided, that,
notwithstanding the foregoing, any time following the Term Loan Pricing Reset Trigger Date the Net Leverage
Ratio is greater than or equal to 3.25:1.0 or an Event of Default has occurred and is continuing, the Applicable Margin shall be set at
the margin in the row styled "Level IV":
Level
Net Leverage
Ratio Calculation
Applicable Margin Relative
to Base Rate Loans
(the "Term Loan Base Rate
Margin")
Applicable Margin
Relative to SOFR Loans
(the "Term Loan SOFR
Margin")
I
If the Net Leverage Ratio is less than 1.75:1.0
7.50 percentage points
8.50 percentage points
II
If the Net Leverage Ratio is greater than or equal to 1.75:1.0 and less than 2.50:1.0
8.00 percentage points
9.00 percentage points
III
If the Net Leverage Ratio is greater than or equal to 2.50:1.0 and less than 3.25:1.0
8.50 percentage points
9.50 percentage points
IV
If the Net Leverage Ratio is greater than or equal to 3.25:1.0
9.00 percentage points
10.00 percentage points
Except
as set forth in the foregoing proviso, following the Term Loan Pricing Reset Trigger Date, the Applicable Margin with respect to any Term
Loan Obligation shall be based upon the most recent Net Leverage Ratio Calculation, which will be calculated as
of the end of each fiscal quarter; provided, that during any Going Concern Period, each applicable
Term Loan Base Rate Margin and Term Loan SOFR Margin shall be increased by 1.00 percentage points until the occurrence of a Going Concern
Rescission Event. Except as set forth in the foregoing provisos, following the Term Loan Pricing Reset Trigger Date, the Applicable Margin
with respect to any Term Loan Obligation shall be re-determined quarterly on the first Business Day of the month following the date of
delivery to Agent of the certified calculation of the Net Leverage Ratio pursuant to Section 5.1
of this Agreement; provided, that if Borrowers fail to provide such certification when
such certification is due, the Applicable Margin with respect to any Term Loan Obligation shall be set at the margin in the row styled
"Level IV" as of the first day of the month following the date on which the certification was required to be delivered. In the
event that the information regarding the Net Leverage Ratio contained in any certificate delivered pursuant to Section 5.1
of this Agreement is shown to be inaccurate, and such inaccuracy, if corrected, would have led to the application of a higher
Applicable Margin for any Applicable Period than the Applicable Margin actually applied for such Applicable Period, then (A) Borrowers
shall immediately deliver to Agent a correct certificate for such Applicable Period, (B) the Applicable Margin with respect to any
Term Loan Obligation shall be determined as if the correct Applicable Margin (as set forth in the table above) were applicable for such
Applicable Period, and (C) Borrowers shall immediately deliver to Agent full payment in respect of the accrued additional interest
as a result of such increased Applicable Margin for such Applicable Period, which payment shall be promptly applied by Agent to the affected
Obligations.
-5-
(iii) Notwithstanding
the foregoing, solely during the Pricing Grid Period, so long as no Default or Event of Default shall have occurred and is continuing,
at the election of Administrative Borrower, on a quarterly basis, a portion of the Applicable Margin with respect to any Term Loan Obligation
up to the Applicable PIK Margin may be paid in kind by adding such interest to the outstanding principal amount of the Term Loan ("PIK
Interest") by Administrative Borrower delivering to Agent a PIK Election Notice prior to 3:00 p.m. at least
three (3) Business Days prior to the commencement of the applicable fiscal quarter (the "PIK Election Deadline").
"Applicable Period"
has the meaning set forth in the definition of Applicable Margin.
"Applicable
PIK Margin" means 2.50 percentage points.
"Application Event"
means the occurrence of (a) a failure by Borrowers to repay all of the Obligations in full on the Maturity Date, or (b) an Event
of Default and the election by Agent or the Required Lenders to require that payments and proceeds of Collateral be applied pursuant to
Section 2.4(b)(iii) of this Agreement.
"Assignee"
has the meaning specified therefor in Section 13.1(a) of this Agreement.
"Assignment and Acceptance"
means an Assignment and Acceptance Agreement substantially in the form of Exhibit A-1 to this Agreement, or such other form
acceptable to Agent.
"Authorized Person"
means any one of the individuals identified as an officer of a Borrower on Schedule A-3 to this Agreement, as such Schedule is
updated from time to time by written notice from Administrative Borrower to Agent.
-6-
"Available Cash"
means, as of any date of determination, the aggregate amount of cash and Cash Equivalents of the US Loan Parties and Canadian Loan Parties
that is in Deposit Accounts or in Securities Accounts, or any combination thereof.
"Availability"
means, as of any date of determination, the amount that Borrowers are entitled to borrow as Revolving Loans under Section 2.1
of this Agreement (after giving effect to the then outstanding Revolver Usage).
"Available Tenor"
means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (a) if such Benchmark is a
term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an interest period
pursuant to this Agreement or (b) otherwise, any payment period for interest calculated with reference to such Benchmark (or component
thereof) that is or may be used for determining any frequency of making payments of interest calculated with reference to such Benchmark
pursuant to this Agreement, in each case, as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark
that is then-removed from the definition of "Interest Period" pursuant to Section 2.12(d)(iii)(D).
"Average Liquidity"
means, with respect to any fiscal quarter, the sum of the aggregate amount of Liquidity for each week in such period (calculated as of
the end of each applicable week) divided by the number of weeks in such period.
"Average
Revolver Usage" means, as of any date of determination, an amount equal to the average daily amount of Revolver Usage
during the most recently ended fiscal quarter or, solely with respect to the Unused Line Fee and the Minimum Interest Fee (as defined
in the Revolver Fee Letter), most recently ended calendar month, as reflected in the most recently delivered applicable Compliance Certificate.
"Average Revolver Usage
Calculation" has the meaning set forth in the definition of Applicable Margin.
"Bail-In Action"
means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected
Financial Institution.
"Bail-In Legislation"
means, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament
and of the Council of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country from
time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of
the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United
Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other
than through liquidation, administration or other insolvency proceedings).
"Bank
Product" means any one or more of the following financial products or accommodations extended to any Loan Party by a Bank Product
Provider: (a) letters of credit or similar credit support arrangements or (b) transactions under Hedge Agreements.
-7-
"Bank Product Agreements"
means those agreements entered into from time to time by any Loan Party with a Bank Product Provider in connection with the obtaining
of any of the Bank Products.
"Bank Product Obligations"
means (a) all obligations, liabilities, reimbursement obligations, fees, or expenses owing by each Loan Party to any Bank Product
Provider pursuant to or evidenced by a Bank Product Agreement and irrespective of whether for the payment of money, whether direct or
indirect, absolute or contingent, due or to become due, now existing or hereafter arising, and (b) all Hedge Obligations.
"Bank Product Provider"
means any Lender or any of its Affiliates, including each of the foregoing in its capacity, if applicable, as a Hedge Provider; provided,
that no such Person (other than TCW or its Affiliates) shall constitute a Bank Product Provider with respect to a Bank Product unless
and until Agent receives a Bank Product Provider Agreement from such Person (a) on or prior to the Closing Date (or such later date
as Agent shall agree to in writing in its sole discretion) with respect to Bank Products provided on or prior to the Closing Date, or
(b) on or prior to the date that is 10 days after the provision of such Bank Product to a Loan Party or its Subsidiaries (or such
later date as Agent shall agree to in writing in its sole discretion) with respect to Bank Products provided after the Closing Date; provided
further, that if, at any time, a Lender ceases to be a Lender under this Agreement (prior to the payment in full of the Obligations),
then, from and after the date on which it so ceases to be a Lender hereunder, neither it nor any of its Affiliates shall constitute Bank
Product Providers and the obligations with respect to Bank Products provided by such former Lender or any of its Affiliates shall no longer
constitute Bank Product Obligations.
"Bank Product Reserve
Amount" means, as of any date of determination, the sum of (i) the aggregate undrawn amount of all letter of credits that
constitute Bank Product Obligations outstanding at such time, plus (ii) the aggregate amount of all drawings under letters of credit
that constitute Bank Product Obligations for which a Bank Product Provider has not been reimbursed.
"Bankruptcy Code"
means title 11 of the United States Code, as in effect from time to time.
"Base Rate"
means, for any day, the greatest of (a) three percent (3.00%) per annum, (b) the Federal Funds Rate in effect on such day plus
½%, (c) Term SOFR for a one month tenor in effect on such day, plus 1%, provided that this clause (c) shall
not be applicable during any period in which Term SOFR is unavailable or unascertainable, and (d) the rate last quoted by The Wall
Street Journal as the "Prime Rate" in the United States or, if The Wall Street Journal ceases to quote such rate, the highest
per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates)
as the "bank prime loan" rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by
Agent) or any similar release by the Federal Reserve Board (as determined by Agent).
"Base Rate Loan"
means each portion of the Loans that bears interest at a rate determined by reference to the Base Rate.
-8-
"Base Rate Margin"
means the Revolving Loan Base Rate Margin or the Term Loan Base Rate Margin, as applicable.
"Benchmark"
means, initially, the Term SOFR Reference Rate; provided that if a Benchmark Transition Event has occurred with respect to the
Term SOFR Reference Rate or the then-current Benchmark, then "Benchmark" means the applicable Benchmark Replacement to the extent
that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 2.12(d)(iii)(A).
"Benchmark Replacement"
means, with respect to any Benchmark Transition Event, the sum of: (a) the alternate benchmark rate that has been selected by Agent
and Administrative Borrower giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the
mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention
for determining a benchmark rate as a replacement for the then-current Benchmark for Dollar-denominated syndicated credit facilities and
(b) the related Benchmark Replacement Adjustment; provided that if such Benchmark Replacement as so determined would be less
than the Floor, such Benchmark Replacement shall be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.
"Benchmark Replacement
Adjustment" means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement for
any applicable Available Tenor, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be
a positive or negative value or zero) that has been selected by Agent and Administrative Borrower giving due consideration to (a) any
selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement
of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any evolving or then-prevailing
market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement
of such Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities at such time.
"Benchmark Replacement
Date" means the earliest to occur of the following events with respect to the then-current Benchmark:
(a) in
the case of clause (a) or (b) of the definition of "Benchmark Transition Event," the later of (i) the date of
the public statement or publication of information referenced therein and (ii) the date on which the administrator of such Benchmark
(or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such
Benchmark (or such component thereof); or
(b) in
the case of clause (c) of the definition of "Benchmark Transition Event," the first date on which such Benchmark (or the
published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator
of such Benchmark (or such component thereof) to be non-representative; provided that such non-representativeness will be determined
by reference to the most recent statement or publication referenced in such clause (c) and even if any Available Tenor of such Benchmark
(or such component thereof) continues to be provided on such date.
-9-
For the avoidance of doubt,
the "Benchmark Replacement Date" will be deemed to have occurred in the case of clause (a) or (b) with respect to
any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors
of such Benchmark (or the published component used in the calculation thereof.
"Benchmark Transition
Event" means the occurrence of one or more of the following events with respect to the then-current Benchmark:
(a) a
public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used
in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark
(or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is
no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);
(b) a
public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published
component used in the calculation thereof), the Board of Governors, the Federal Reserve Bank of New York, an insolvency official with
jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator
for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator
for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease
to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely, provided that, at the
time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark
(or such component thereof); or
(c) a
public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published
component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are not,
or as of a specified future date will not be, representative.
For the avoidance of doubt,
if the then-current Benchmark has any Available Tenors, a "Benchmark Transition Event" will be deemed to have occurred with
respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current
Available Tenor of such Benchmark (or the published component used in the calculation thereof).
"Benchmark Transition
Start Date" means, in the case of a Benchmark Transition Event, the earlier of (a) the applicable Benchmark Replacement
Date and (b) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the 90th
day prior to the expected date of such event as of such public statement or publication of information (or if the expected date of such
prospective event is fewer than 90 days after such statement or publication, the date of such statement or publication).
-10-
"Benchmark Unavailability
Period" means the period (if any) (x) beginning at the time that a Benchmark Replacement Date has occurred if, at such time,
no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance
with Section 2.12(d)(iii) and (y) ending at the time that a Benchmark Replacement has replaced the then-current
Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.12(d)(iii).
"Beneficial Ownership
Certification" means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.
"Beneficial Ownership
Regulation" means 31 C.F.R. § 1010.230.
"Benefit Plan"
means a "defined benefit plan" (as defined in Section 3(35) of ERISA) for which any Loan Party or any of its Subsidiaries
or ERISA Affiliates has been an "employer" (as defined in Section 3(5) of ERISA) within the past six years.
"BHC Act Affiliate"
of a Person means an "affiliate" (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such
Person.
"Board of Directors"
means, as to any Person, the board of directors (or comparable managers or other governing body or Person) of such Person, or any committee
thereof duly authorized to act on behalf of the board of directors (or comparable managers or other governing body or Person).
"Board of Governors"
means the Board of Governors of the Federal Reserve System of the United States (or any successor).
"Board Observation Period"
means (a) the period commencing on the Closing Date and ending on the first date after October 31, 2024 that Agent has received
a Net Leverage Ratio Calculation for the most recently ended fiscal quarter that is less than 2.25:1.0 and (b) any period during
which either (i) a Default or an Event of Default has occurred and is continuing or (ii) the most recent Net Leverage Ratio
Calculation delivered to Agent pursuant to Section 5.1 of this Agreement is greater than or equal to 2.25:1.0; provided
that, with respect to clause (b), such Board Observation Period shall cease on any date on which (i) no Default or Event of Default
shall have occurred and be continuing and (ii) the most recent Net Leverage Ratio Calculation delivered to Agent pursuant to Section 5.1
of this Agreement is less than 2.25:1.0.
"Board Observer"
has the meaning specified therefor in Section 5.13(c) of this Agreement.
"BOD Meeting"
has the meaning specified therefor in Section 5.13(c) of this Agreement.
"Borrower"
and "Borrowers" have the respective meanings specified therefor in the preamble to this Agreement.
"Borrower Materials"
has the meaning specified therefor in Section 17.9(c) of this Agreement.
-11-
"Borrowing"
means a borrowing consisting of Loans made on the same day by the Lenders (or Agent on behalf thereof), or by Agent in the case of a Protective
Advance.
"Borrowing Base"
means, on any date of determination, the result of the following (without duplication): (a) 85% of the net book value of Accounts
of the Borrowing Base Parties to the extent such Accounts are actually billed and represented by an invoice; plus (b) 85%
of the net book value of Accounts of the Borrowing Base Parties that the Borrowing Base Parties have the right to bill but have not yet
billed up to the lesser of (i) 12.5% of the amount calculated pursuant to the sum of clauses (a) and (b) of this definition
and (ii) $15,000,000 of such Accounts; plus (c) 60% of the net book value of all Inventory of the Borrowing Base Parties,
less (d) Reserves established by the Revolving Agent (including the Bank Product Reserve Amount, if any).
"Borrowing
Base Certificate" means a certificate substantially in the form of Exhibit B-1 to this Agreement, which such form
of Borrowing Base Certificate may be amended, restated, supplemented or otherwise modified from time to time (including without limitation,
changes to the format thereof), as approved by Agent and Revolving Agent in their Permitted Discretion.
"Borrowing Base Parties"
means, collectively, (a) the Borrowers, (b) any Domestic Subsidiary of a Borrower that is a Guarantor, and (c) any Canadian
Loan Party, in each case, solely to the extent Agent has a perfected Lien on such Guarantor's assets.
"Business Day"
means any day that is not a Saturday, Sunday or other day on which the Federal Reserve Bank of New York is closed, and, as it relates
to any SOFR Loans, a U.S. Government Securities Business Day.
"Canadian AML Laws"
means Part II.I of the Criminal Code, R.S.C. 1985, c. C-46, The Proceeds of Crime (Money Laundering) and Terrorist Financing
Act, S.C. 2000, c. 17 ("Proceeds of Crime Act") and the United Nations Act, R.S.C. 1985, c.U-2 or any similar
Canadian legislation, together with all rules, regulations and interpretations thereunder or related thereto including the Regulations
Implementing the United Nations Resolutions on the Suppression of Terrorism and the United Nations Al-Qaida and Taliban Regulations promulgated
under the United Nations Act.
"Canadian Copyright
Security Agreement" has the meaning specified therefor in the Canadian Guarantee and Security Agreement.
"Canadian Deed of Hypothec"
means (i) the deed of hypothec dated on or about the date of this Agreement in form and substance reasonably satisfactory to Agent
executed and delivered by each of Comtech Satellite Network Technologies Corp. and Comtech Solacom Technologies, Inc. in favour of
the Agent, and (ii) each other deed of hypothec executed by a Loan Party which either (a) is organized under the laws of Québec,
(ii) maintains its chief executive office or registered office in the Province of Québec, or (iii) maintains tangible
property or assets in the Province of Québec, each as amended, amended and restated, restated, supplemented, modified or otherwise
in effect from time to time.
-12-
"Canadian Defined Benefit
Pension Plan" means a Canadian Pension Plan, which contains a “defined benefit provision,” as defined in subsection
147.1(1) of the Income Tax Act (Canada).
"Canadian Dollars"
or "Cdn$" means the lawful currency of Canada.
"Canadian Guarantee
and Security Agreement" means a guaranty and security agreement, dated as of even date with this Agreement, in form and substance
reasonably satisfactory to Agent, executed and delivered by each of the Canadian Loan Parties to Agent, as amended, amended and restated,
restated, supplemented, modified or otherwise in effect from time to time.
"Canadian Loan Party"
means (a) as of the Closing Date, Comtech Satellite Network Technologies Corp. and Comtech Solacom Technologies, Inc. and (b) each
other Person organized under the federal, provincial or territorial laws of Canada that becomes a Loan Party after the Closing Date pursuant
to Section 5.11 of this Agreement.
"Canadian Patent Security
Agreement" has the meaning specified therefor in the Canadian Guarantee and Security Agreement.
"Canadian Pension Benefits
Legislation" means the Pension Benefits Act (Ontario), and any Canadian federal, provincial, territorial or local counterparts
or equivalents, in each case, as applicable and as amended from time to time.
"Canadian Pension Plan"
means a pension plan that is subject to the Canadian Pension Benefits Legislation and the Income Tax Act (Canada) and that is either
(a) maintained or sponsored by any Loan Party for employees or (b) maintained pursuant to a collective bargaining agreement,
or other arrangement under which more than one employer makes contributions and to which any Loan Party is making or accruing an obligation
to make contributions or has within the preceding five years made or accrued such contributions, but excludes a statutory benefit plan
which any Loan Party is required to participate in or comply with, including the Canada Pension Plan and the Quebec Pension Plan.
"Canadian
Security Documents" means the Canadian Guarantee and Security Document, the Canadian Deed of Hypothec, any Canadian Copyright
Security Agreement, any Canadian Patent Security Agreement, any Canadian Trademark Security Agreement and any other Loan Document that
purports to create a Lien which is governed by the laws of Canada or any province or territory thereof.
"Canadian Trademark
Security Agreement" has the meaning specified therefor in the Canadian Guarantee and Security Agreement.
"Capital Expenditures"
means, with respect to any Person for any period, the amount of all expenditures by such Person and its Subsidiaries during such period
that are capital expenditures as determined in accordance with GAAP, whether such expenditures are paid in cash or financed, but excluding,
without duplication (a) with respect to the purchase price of assets that are purchased substantially contemporaneously with the
trade-in of existing assets during such period, the amount that the gross amount of such purchase price is reduced by the credit granted
by the seller of such assets for the assets being traded in at such time and (b) expenditures made during such period to consummate
one or more Permitted Acquisitions.
-13-
"Capital Lease"
means a lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, that is required
to be classified and accounted for as capital leases on a balance sheet in accordance with GAAP.
"Capitalized Lease Obligation"
means that portion of the obligations under a Capital Lease that is required to be capitalized in accordance with GAAP.
"Cash Equivalents"
means (a) marketable direct obligations issued by, or unconditionally guaranteed by, the United States or issued by any agency thereof
and backed by the full faith and credit of the United States, in each case maturing within one year from the date of acquisition thereof,
(b) marketable direct obligations issued or fully guaranteed by any state of the United States or any political subdivision of any
such state or any public instrumentality thereof maturing within one year from the date of acquisition thereof and, at the time of acquisition,
having one of the two highest ratings obtainable from either Standard & Poor's Rating Group ("S&P") or Moody's
Investors Service, Inc. ("Moody's"), (c) commercial paper maturing no more than 270 days from the date of creation
thereof and, at the time of acquisition, having a rating of at least A-1 from S&P or at least P-1 from Moody's, (d) certificates
of deposit, time deposits, overnight bank deposits or bankers' acceptances maturing within one year from the date of acquisition thereof
issued by any bank organized under the laws of the United States or any state thereof or the District of Columbia or any United States
branch of a foreign bank having at the date of acquisition thereof combined capital and surplus of not less than $1,000,000,000, (e) Deposit
Accounts maintained with (i) any bank that satisfies the criteria described in clause (d) above, or (ii) any other bank
organized under the laws of the United States or any state thereof so long as the full amount maintained with any such other bank is insured
by the Federal Deposit Insurance Corporation, (f) repurchase obligations of any commercial bank satisfying the requirements of clause
(d) of this definition or of any recognized securities dealer having combined capital and surplus of not less than $1,000,000,000,
having a term of not more than seven days, with respect to securities satisfying the criteria in clauses (a) or (d) above, (g) debt
securities with maturities of six months or less from the date of acquisition backed by standby letters of credit issued by any commercial
bank satisfying the criteria described in clause (d) above, and (h) Investments in money market funds substantially all of whose
assets are invested in the types of assets described in clauses (a) through (g) above.
"Cash Management Services"
means any cash management or related services including treasury, depository, return items, overdraft, controlled disbursement, merchant
store value cards, e-payables services, electronic funds transfer, interstate depository network, automatic clearing house transfer (including
the Automated Clearing House processing of electronic funds transfers through the direct Federal Reserve Fedline system) and other cash
management arrangements.
"CFC" means
a Foreign Subsidiary, other than a Designated Foreign Guarantor, that is a "controlled foreign corporation" as that term is
defined in Section 957 of the IRC.
-14-
"CFC
Holdco" means a Subsidiary that directly or indirectly owns no material assets other than the stock or stock and debt
of one or more CFCs.
"Change in Law"
means the occurrence after the date of this Agreement of: (a) the adoption or effectiveness of any law, rule, regulation, judicial
ruling, judgment or treaty, (b) any change in any law, rule, regulation, judicial ruling, judgment or treaty or in the administration,
interpretation, implementation or application by any Governmental Authority of any law, rule, regulation, guideline or treaty, (c) any
new, or adjustment to, requirements prescribed by the Board of Governors for "Eurocurrency Liabilities" (as defined in Regulation
D of the Board of Governors), requirements imposed by the Federal Deposit Insurance Corporation, or similar requirements imposed by any
domestic or foreign governmental authority or resulting from compliance by Agent, Revolving Agent or any Lender with any request or directive
(whether or not having the force of law) from any central bank or other Governmental Authority and related in any manner to SOFR, the
Term SOFR Reference Rate or Term SOFR, or (d) the making or issuance by any Governmental Authority of any request, rule, guideline
or directive, whether or not having the force of law; provided, that notwithstanding anything in this Agreement to the contrary,
(i) the Dodd-Frank Wall Street Reform and Consumer Protection Act (or any European equivalent regulation (such as the European Market
and Infrastructure Regulation)) and all requests, rules, guidelines or directives thereunder or issued in connection therewith, and (ii) all
requests, rules, guidelines or directives concerning capital adequacy promulgated by the Bank for International Settlements, the Basel
Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities shall,
in each case, be deemed to be a "Change in Law," regardless of the date enacted, adopted or issued.
"Change of Control"
means that:
(a) any
Person, or two or more Persons acting in concert (other than Permitted Holders), shall have acquired beneficial ownership, directly or
indirectly, of Equity Interests of Comtech (or other securities convertible into such Equity Interests) representing 35% or more of the
combined voting power of all Equity Interests of Comtech entitled (without regard to the occurrence of any contingency) to vote for the
election of members of the Board of Directors of Comtech,
(b) any
Person, or two or more Persons acting in concert (other than Permitted Holders), shall have acquired by contract or otherwise, or shall
have entered into a contract or arrangement that, upon consummation thereof, will result in its or their acquisition of the power to exercise,
directly or indirectly, a controlling influence over the management or policies of Comtech or control over the Equity Interests of such
Person entitled to vote for members of the Board of Directors of Comtech on a fully-diluted basis (and taking into account all such Equity
Interests that such Person or group has the right to acquire pursuant to any option right) representing 35% or more of the combined voting
power of such Equity Interests,
(c) the
Permitted Holders fail to own and control, directly or indirectly, a majority of the outstanding shares of the Specified Preferred Equity,
(d) a
majority of the members of the Board of Directors of Comtech do not constitute Continuing Directors,
-15-
(e) Comtech
fails to own and control, directly or indirectly, 100% of the Equity Interests of each other Loan Party other than (a) in connection
with a sale of all (but not less than all) of the Equity Interests of a Loan Party pursuant to a transaction permitted by Section 6.4
or (b) in connection with an Investment permitted by Section 6.9 in a joint venture or other non-wholly-owned Subsidiary
that is or becomes a Loan Party,
(f) any
sale of all or substantially all of the property or assets of Comtech and its Subsidiaries other than in a sale or transfer to another
Loan Party, or
(g) the
occurrence of any "Change of Control" (or, in each case, similar event, however denominated) under and as defined in any Specified
Preferred Equity Document, any Specified Preferred Subordinated Debt Document, any indenture or other agreement or instrument evidencing,
governing the rights of the holders of or otherwise relating to any Material Indebtedness of Comtech or any Subsidiary or any certificate
of designations (or other provision of the organizational documents of Comtech) relating to, or any other agreement governing the rights
of the holders of, any Disqualified Equity Interests.
"Closing Date"
means June 17, 2024.
"Code" means
the New York Uniform Commercial Code, as in effect from time to time.
"Collateral"
means all assets and interests in assets and proceeds thereof now owned or hereafter acquired by any Loan Party or its Subsidiaries in
or upon which a Lien is granted by such Person in favor of Agent or the Lenders under any of the Loan Documents.
"Collateral Access Agreement"
means a landlord waiver, bailee letter, or acknowledgement agreement of any lessor, warehouseman, processor, consignee, or other Person
in possession of, having a Lien upon, or having rights or interests in any Loan Party's or its Subsidiaries' books and records, Equipment,
or Inventory, in each case, in form and substance reasonably satisfactory to Agent.
"Commitment"
means, with respect to each Lender, its Revolver Commitment or its Term Loan Commitment, as the context requires, and, with respect to
all Lenders, their Revolver Commitments or their Term Loan Commitments, as the context requires, in each case as such Dollar amounts are
set forth beside such Lender's name under the applicable heading on Schedule C-1 to this Agreement or in the Assignment and
Acceptance pursuant to which such Lender became a Lender under this Agreement, as such amounts may be reduced or increased from time to
time pursuant to assignments made in accordance with the provisions of Section 13.1 of this Agreement.
"Commodity Exchange
Act" means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
"Compliance Certificate"
means a certificate substantially in the form of Exhibit C-1 to this Agreement delivered by the chief financial officer or
treasurer of Comtech to Agent.
"Comtech" has
the meaning specified therefor in the preamble to this Agreement.
-16-
"Confidential Information"
has the meaning specified therefor in Section 17.9(a) of this Agreement.
"Conforming Changes"
means, with respect to either the use or administration of Term SOFR or the use, administration, adoption or implementation of any Benchmark
Replacement, any technical, administrative or operational changes (including changes to the definition of "Base Rate," the definition
of "Business Day," the definition of "U.S. Government Securities Business Day," the definition of "Interest Period"
or any similar or analogous definition (or the addition of a concept of "interest period"), timing and frequency of determining
rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability
and length of lookback periods, the applicability of Section 2.12(b)(ii) and other technical, administrative or operational
matters) that Agent decides may be appropriate to reflect the adoption and implementation of any such rate or to permit the use and administration
thereof by Agent in a manner substantially consistent with market practice (or, if Agent decides that adoption of any portion of such
market practice is not administratively feasible or if Agent determines that no market practice for the administration of any such rate
exists, in such other manner of administration as Agent decides is reasonably necessary in connection with the administration of this
Agreement and the other Loan Documents).
"Connection
Income Taxes" means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise
Taxes or branch profits Taxes.
"Continuing Director"
means (a) any member of the Board of Directors who was a director (or comparable manager) of Comtech on the Closing Date, (b) any
individual who becomes a member of the Board of Directors after the Closing Date if such individual was approved, appointed or nominated
for election to the Board of Directors by a majority of the Continuing Directors, and (c) any member of the Board of Directors that
was nominated by the Permitted Holders pursuant to the terms of the Specified Preferred Equity Documents.
"Control Agreement"
means a control agreement, in form and substance reasonably satisfactory to Agent and Revolving Agent in their Permitted Discretion, executed
and delivered by a Loan Party, Agent, Revolving Agent (who shall be appointed as sub-agent of Agent thereunder in such agreement or in
another writing between Agent and Revolving Agent), and the applicable securities intermediary (with respect to a Securities Account)
or bank or other financial institution (with respect to a Deposit Account).
"Copyright Security
Agreement" has the meaning specified therefor in the Guaranty and Security Agreement.
"Covered Entity"
means any of the following:
(a) a
"covered entity" as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(b) a
"covered bank" as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(c) a
"covered FSI" as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
-17-
"Covered Party"
has the meaning specified therefor in Section 17.16 of this Agreement.
"Curative Equity"
means the amount of proceeds received by Comtech from the issuance of Qualified Equity Interests in immediately available funds, which
proceeds are designated "Curative Equity" by Borrowers under Section 9.3 of this Agreement at the time it is contributed.
For the avoidance of doubt, the forgiveness of antecedent debt (whether Indebtedness, trade payables, or otherwise) shall not constitute
Curative Equity.
"Currency Due"
has the meaning specified therefor in Section 17.17 of this Agreement.
"Current Assets"
means, as at any date of determination, the total assets of Comtech and its Subsidiaries (other than cash and Cash Equivalents) which
may properly be classified as current assets on a consolidated balance sheet of Comtech and its Subsidiaries in accordance with GAAP.
"Current Liabilities"
means, as at any date of determination, the total liabilities of Comtech and its Subsidiaries which may properly be classified as current
liabilities (other than the current portion of the Loans) on a consolidated balance sheet of Comtech and its Subsidiaries in accordance
with GAAP.
"Default" means
an event, condition, or default that, with the giving of notice, the passage of time, or both, would be an Event of Default.
"Default Right"
has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as
applicable.
"Defaulting Lender"
means any Lender that (a) has failed to (i) fund all or any portion of its Loans within two (2) Business Days of the date
such Loans were required to be funded hereunder unless such Lender notifies Agent and Administrative Borrower in writing that such failure
is the result of such Lender's determination that one or more conditions precedent to funding (each of which conditions precedent, together
with any applicable Default or Event of Default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay
to Agent or any other Lender any other amount required to be paid by it hereunder within two (2) Business Days of the date when due,
(b) has notified any Borrower or Agent in writing that it does not intend to comply with its funding obligations hereunder, or has
made a public statement to that effect (unless such writing or public statement relates to such Lender's obligation to fund a Loan hereunder
and states that such position is based on such Lender's determination that a condition precedent to funding (which condition precedent,
together with any applicable Default or Event of Default, shall be specifically identified in such writing or public statement) cannot
be satisfied), (c) has failed, within three (3) Business Days after written request by Agent or Administrative Borrower, to
confirm in writing to Agent and Administrative Borrower that it will comply with its prospective funding obligations hereunder (provided,
that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by Agent
and Administrative Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of any
Insolvency Proceeding, (ii) had appointed for it a receiver, interim receiver, receiver and manager, custodian, conservator, trustee,
administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets,
including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity, or (iii) become
the subject of a Bail-In Action; provided, that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or
acquisition of any Equity Interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long
as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States
or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject,
repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by Agent that a Lender is a Defaulting
Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such
Lender shall be deemed to be a Defaulting Lender upon delivery of written notice of such determination to Administrative Borrower and
each Lender.
-18-
"Defaulting Lender Rate"
means (a) for the first three days from and after the date the relevant payment is due, the Base Rate, and (b) thereafter, the
interest rate then applicable to Base Rate Loans (inclusive of the Base Rate Margin applicable thereto).
"Deposit Account"
means any deposit account (as that term is defined in the Code), or any account maintained for the deposit of funds with a Canadian bank,
trust company or other financial institution accepting funds for deposit in Canada.
"Designated Account"
means the Deposit Account of Administrative Borrower identified on Schedule D-1 to this Agreement (or such other Deposit Account
of Administrative Borrower located at Designated Account Bank that has been designated as such, in writing, by Borrowers to Agent) and
Revolving Agent.
"Designated Account
Bank" has the meaning specified therefor in Schedule D-1 to this Agreement (or such other bank that is located within
the United States that has been designated as such, in writing, by Borrowers to Agent or Revolving Agent, as applicable, in the applicable
Notice of Borrowing).
"Designated
Foreign Guarantor" means each Subsidiary of Comtech organized under the laws of (x) Canada or any province or territory
thereof or (y) from and after the date that is 90 days after the Closing Date (or such later date as permitted by Agent in
its sole discretion), England & Wales; provided, that, so long as it remains inactive with no material assets or operations,
Sheet Metal Precision Limited is not a Designated Foreign Guarantor.
"Disbursement Letter"
means the Notice of Borrowing and Interest Rate Election delivered by the Administrative Borrower to Agent on the Closing Date, in form
and substance reasonably satisfactory to Agent.
"Disqualified Equity
Interests" means any Equity Interests that, by their terms (or by the terms of any security or other Equity Interests into which
they are convertible or for which they are exchangeable), or upon the happening of any event or condition (a) matures or are mandatorily
redeemable (other than solely for Qualified Equity Interests), pursuant to a sinking fund obligation or otherwise (except as a result
of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset
sale event shall be subject to the prior repayment in full of the Loans and all other Obligations that are accrued and payable and the
termination of the Commitments), (b) are redeemable at the option of the holder thereof (other than solely for Qualified Equity Interests),
in whole or in part, on or prior to the date that is 91 days after the Maturity Date, other than following the prior payment in full of
the Obligations, (c) requires scheduled payments of dividends in cash, or (d) are or become convertible into or exchangeable
for Indebtedness or any other Equity Interests that would constitute Disqualified Equity Interests, in each case, prior to the date that
is 91 days after the Maturity Date.
-19-
"Dollars" or
"$" means United States dollars.
"Domestic Subsidiary"
means any Subsidiary of any Loan Party that is not a Foreign Subsidiary.
"Earn-Outs"
means unsecured liabilities of a Loan Party arising under an agreement to make any deferred payment as a part of the Purchase Price for
a Permitted Acquisition, including performance bonuses or consulting payments in any related services, employment or similar agreement,
in an amount that is subject to or contingent upon the revenues, income, cash flow or profits (or the like) of the target of such Permitted
Acquisition.
"EBITDA" means,
with respect to any fiscal period and with respect to Comtech determined, in each case, on a consolidated basis in accordance with GAAP:
(a) the
consolidated net income (or loss),
minus
(b) without
duplication, the sum of the following amounts for such period to the extent included in determining consolidated net income (or loss)
for such period:
(i) unusual
or non-recurring gains,
(ii) interest
income, and
(iii) non-cash
gains in respect of obligations under hedging transactions, and non-cash gains resulting from currency translation or non-cash transaction
gains related to currency re-measurements of Indebtedness, and all other non-cash foreign currency translation or transaction gains,
plus
(c) without
duplication, the sum of the following amounts for such period to the extent (except with respect to clause (x) below) deducted in
determining consolidated net income (or loss) for such period:
-20-
(i) non-cash
unusual losses or non-cash non-recurring losses (excluding any non-cash losses relating to write-downs or reserves with respect to Accounts),
(ii) cash
unusual charges or losses or cash non-recurring charges or losses (including, without limitation, non-recurring fees and expenses incurred
in connection with any proposed or actual issuance of any Indebtedness (or any amendment thereto) or Equity Interests, or any proposed
or actual acquisitions, investments, asset sales or divestitures permitted hereunder, whether or not consummated); provided that
the aggregate amount added back pursuant to this clause (ii), together with amounts added back pursuant to clause (c)(x) below, shall
not exceed for such period (x) 20% of EBITDA for such period (calculated prior to giving effect to such add-backs and the amount
added to EBITDA pursuant to clauses (c)(xvi) and (c)(xvii) below) for the period prior to the first anniversary of this Agreement,
and (y) thereafter, 15% of EBITDA for such period (calculated prior to giving effect to such add-backs and the amount added to EBITDA
pursuant to clauses (c)(xvi) and (c)(xvii) below),
(iii) Interest
Expense,
(iv) tax
expense based on income, profits or capital, including federal, foreign, state, franchise and similar taxes (and for the avoidance of
doubt, specifically excluding any sales taxes or any other taxes held in trust for a Governmental Authority),
(v) depreciation
and amortization,
(vi) with
respect to any Permitted Acquisition, any Specified Permitted Disposition and the Specified Permitted Individual Disposition, in each
case, after the Closing Date, costs, fees, charges, or expenses consisting of out-of-pocket expenses owed by the Loan Parties or any of
their Subsidiaries to any Person for services performed by such Person in connection with such Permitted Acquisition, such Specified Permitted
Disposition or the Specified Permitted Individual Disposition incurred within 180 days of the consummation of such Permitted Acquisition,
such Specified Permitted Disposition or the Specified Permitted Individual Disposition, up to an aggregate amount for such Permitted Acquisition,
such Specified Permitted Disposition or the Specified Permitted Individual Disposition not to exceed the greater of (x) $1,400,000,
and (y) 4.0% of the Purchase Price of such Permitted Acquisition, such Specified Permitted Disposition or the Specified Permitted
Individual Disposition, as applicable.
(vii) with
respect to any Permitted Acquisitions after the Closing Date, non-cash adjustments in accordance with GAAP purchase accounting rules under
FASB Statement No. 141 and EITF Issue No. 01-3, in the event that such an adjustment is required by Comtech's independent auditors,
in each case, as determined in accordance with GAAP,
(viii) fees,
costs, charges and expenses, in respect of Earn-Outs incurred in connection with any Permitted Acquisition to the extent permitted to
be incurred under this Agreement that are required by the application of FAS 141R to be and are expensed by the Loan Parties and their
Subsidiaries,
(ix) non-cash
compensation expense (including deferred non-cash compensation expense), or other non-cash expenses or charges, arising from the sale
or issuance of Equity Interests, the granting of stock options, and the granting of stock appreciation rights and similar arrangements
(including any repricing, amendment, modification, substitution, or change of any such Equity Interests, stock option, stock appreciation
rights, or similar arrangements), minus the amount of any such expenses or charges previously added back pursuant to this
clause (c)(ix) when paid in cash to the extent not deducted in the computation of net income (or loss),
-21-
(x) cost-savings,
synergies, operating expense reductions, restructuring charges and expenses (collectively, "Cost Savings") projected
by Borrowers in good faith to be realized as a result of any merger, amalgamation, acquisition, corporate initiative, joint venture or
material disposition (each, a "Cost Saving Action") that have been taken by the Borrowers or any of their Subsidiaries
and permitted hereunder during such period (calculated on a pro forma basis as though such Cost-Savings had been realized on the first
day of such period), net of the amount of actual benefits realized during such period from such Cost Saving Actions; provided,
that (A) such Cost-Savings are reasonably identifiable, reasonably attributable to the Cost Savings Actions specified and reasonably
anticipated to result from such Cost Savings Actions, (B) such Cost-Savings are commenced within 12 months of such Cost Savings Actions
and the benefits resulting from such Cost Savings Actions are reasonably anticipated by the Borrowers to be realized within 12 months
of the date of consummation of such Cost Saving Action, (C) no Cost-Savings may be added pursuant to this clause (x) to the
extent duplicative of any expenses or charges relating thereto that are either excluded in computing consolidated net income (or loss)
or included (i.e., added back) in computing EBITDA for such period, and (D) the aggregate amount of Cost-Savings added pursuant to
this clause (x), together with amounts added back pursuant to clause (c)(ii) above, shall not exceed for such period (x) 20%
of EBITDA for such period (calculated prior to giving effect to such add-backs and the amount added to EBITDA pursuant to clauses (c)(xvi) and
(c)(xvii) below) for the period prior to the first anniversary of this Agreement, and (y) thereafter, 15% of EBITDA for such
period (calculated prior to giving effect to such add-backs and the amount added to EBITDA pursuant to clauses (c)(xvi) and (c)(xvii) below),
(xi) (A) reasonable
and documented costs, fees to Persons (other than any Loan Party or its Affiliates), charges or expenses incurred in connection with the
transactions consummated on the Closing Date and (1) actually paid on or prior to the Closing Date, or (2) actually paid within
90 days after the Closing Date in an aggregate amount not to exceed $500,000 or such greater amount as approved by Agent in its sole discretion,
and (B) without duplication of amounts added back pursuant to the preceding clause (A), expenses, charges and fees (including expenses,
charges and fees paid to Agent, Revolving Agent and Lenders) incurred during such period in connection with the administration (including
in connection with any waiver, amendment, supplementation or other modification thereto of the Loan Documents) of the Loan Documents,
(xii) reasonable
directors' fees, expense reimbursement payments and indemnification amounts paid to (or for the benefit of) any independent director of
Comtech or any other Loan Party in an aggregate amount for all such fees, expense reimbursement payments and indemnification amounts added
back pursuant to this clause (xii) not to exceed $1,000,000 during any fiscal year,
(xiii) one-time
expenses incurred in connection with the transition of the chief executive officer of Comtech up to an aggregate amount not to exceed
$2,500,000 during any fiscal period ending on or before July 31, 2024,
-22-
(xiv) fees,
costs, charges and expenses incurred in connection with consulting and/or advisory services provided by (A) M-3 Partners, in an aggregate
amount not to exceed $2,400,000 (or such greater amount as approved by Agent in its sole discretion) and (B) the Financial Advisor,
in each case, during any fiscal period ending on or before July 31, 2025,
(xv) non-cash
losses in respect of obligations under hedging transactions, and non-cash losses resulting from currency translation or non-cash transaction
losses related to currency re-measurements of Indebtedness, and all other non-cash foreign currency translation or transaction losses,
(xvi) solely
for any fiscal period ending on or before April 30, 2025, an amount equal to the Net Cash Proceeds received by Borrowers on the Amendment
No. 1 Closing Date from the incurrence of Specified Preferred Subordinated Debt,
(xvii) solely
for any fiscal period ending on or before October 31, 2025, an amount equal to the Net Cash Proceeds received by Borrowers on the
Amendment No. 2 Closing Date from the incurrence of Specified Preferred Subordinated Debt, and
(xviii) (A) reasonable
and documented costs, fees to Persons (other than any Loan Party or its Affiliates), charges or expenses incurred in connection with the
transactions consummated on the Amendment No. 1 Closing Date and (1) actually paid on or prior to the Amendment No. 1 Closing
Date, or (2) actually paid within 90 days after the Amendment No. 1 Closing Date in an aggregate amount not to exceed $1,900,000
or such greater amount as approved by Agent in its sole discretion, and (B) without duplication of amounts added back pursuant to
the preceding clause (A), expenses, charges and fees (including expenses, charges and fees paid to Specified Preferred Agent and Specified
Preferred Lenders) incurred during such period in connection with the administration (including in connection with any waiver, amendment,
supplementation or other modification thereto of the Specified Preferred Subordinated Debt Documents) of the Specified Preferred Subordinated
Debt Documents in an aggregate amount not to exceed $100,000.
For
the purposes of calculating EBITDA for any period of twelve consecutive months (each, a "Reference Period"), if at any
time during such Reference Period (and after the Closing Date), any Loan Party or any of its Subsidiaries shall have consummated a Permitted
Acquisition, a Permitted Disposition or a Wind-Up, EBITDA for such Reference Period shall be calculated after giving pro forma effect
thereto (including pro forma adjustments arising out of events which are directly attributable to such Permitted Acquisition, such Permitted
Disposition or such Wind-Up, are factually supportable, and are expected to have a continuing impact, in each case determined on a basis
consistent with Article 11 of Regulation S-X promulgated under the Securities Act and as interpreted by the staff of the SEC
(but without giving effect to any modifications relating to "Management’s Adjustments" promulgated after December 31,
2020); provided that the aggregate amount of such pro forma adjustments, together with amounts added back pursuant to clauses
(c)(ii) and (c)(x) above, shall not exceed for such Reference Period (x) 20% of EBITDA for such Reference Period (calculated
prior to giving effect to such adjustments and add-backs and the amount added to EBITDA pursuant to clauses (c)(xvi) and (c)(xvii) above)
for the period prior to the first anniversary of this Agreement, and (y) thereafter, 15% of EBITDA for such Reference Period (calculated
prior to giving effect to such adjustments and add-backs and the amount added to EBITDA pursuant to clauses (c)(xvi) and (c)(xvii) above))
or in such other manner acceptable to Agent as if any such Permitted Acquisition, such Permitted Disposition, such Wind-Up or adjustment
occurred on the first day of such Reference Period.
-23-
In
addition, notwithstanding the above, (1) EBITDA (calculated without giving effect to the addbacks in clauses (c)(ii) or (c)(x) above)
(a) for the fiscal quarter ended July 31, 2023 shall be deemed to be $10,960,656, (b) for the fiscal quarter ended October 31,
2023 shall be deemed to be $12,579,870, (c) for the fiscal quarter ended January 31, 2024 shall be deemed to be $11,408,316
and (d) EBITDA for the fiscal quarter ended April 30, 2024 shall be deemed to be $8,275,407, and (2) the aggregate amount
of addbacks pursuant to clauses (c)(ii) or (c)(x) above (calculated without giving effect to any applicable caps) shall be deemed
to be (a) for the fiscal quarter ended July 31, 2023, $5,151,743 (b) for the fiscal quarter ended October 31, 2023,
$5,078,696, (c) for the fiscal quarter ended January 31, 2024, $3,702,802, and (d) for the fiscal quarter ended April 30,
2024, $3,635,588, and (3) the aggregate amount of addbacks permitted to be added to EBITDA pursuant to clauses (c)(ii) and (c)(x) above
as of the Closing Date is $8,644,850.
"EEA Financial Institution"
means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of
an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in
clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of
an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
"EEA Member Country"
means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
"EEA Resolution Authority"
means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including
any delegee) having responsibility for the resolution of any EEA Financial Institution.
"Eligible Transferee"
means (a) any Lender (other than a Defaulting Lender), any Affiliate of any Lender and any Related Fund of any Lender; (b) (i) a
commercial bank organized under the laws of the United States or any state thereof, and having total assets in excess of $5,000,000,000;
(ii) a savings and loan association or savings bank organized under the laws of the United States or any state thereof, and having
total assets in excess of $5,000,000,000; (iii) a commercial bank organized under the laws of any other country or a political subdivision
thereof; provided, that (A) (x) such bank is acting through a branch or agency located in the United States, or (y) such
bank is organized under the laws of a country that is a member of the Organization for Economic Cooperation and Development or a political
subdivision of such country, and (B) such bank has total assets in excess of $5,000,000,000; (c) any other entity (other than
a natural person) that is an "accredited investor" (as defined in Regulation D under the Securities Act) that extends credit
or buys loans as one of its businesses including insurance companies, investment or mutual funds and lease financing companies; and (d) during
the continuation of an Event of Default, any other Person approved by Agent.
-24-
"Employee Benefit Plan"
means any employee benefit plan within the meaning of Section 3(3) of ERISA, whether or not subject to ERISA, (a) that
is or within the preceding six (6) years has been sponsored, maintained or contributed to by any Loan Party or ERISA Affiliate or
(b) to which any Loan Party or ERISA Affiliate has, or has had at any time within the preceding six (6) years, any liability,
contingent or otherwise.
"Environmental Action"
means any written complaint, summons, citation, notice, directive, order, claim, litigation, investigation, judicial or administrative
proceeding, judgment, letter, or other written communication from any Governmental Authority, or any third party involving violations
of Environmental Laws or releases of Hazardous Materials (a) from or impacting any assets, properties, or businesses of any Loan
Party, any Subsidiary of any Loan Party, or any of their predecessors in interest, or (b) from or onto any facilities which received
Hazardous Materials generated by any Loan Party, any Subsidiary of any Loan Party, or any of their predecessors in interest.
"Environmental Law"
means any applicable federal, state, provincial, territorial, foreign or local statute, law, rule, regulation, ordinance, code, binding
and enforceable guideline, binding and enforceable written policy, or rule of common law now or hereafter in effect and in each case
as amended, or any judicial or administrative interpretation thereof, including any judicial or administrative order, consent decree or
judgment, in each case, to the extent binding on any Loan Party or its Subsidiaries, relating to the environment, the effect of the environment
on employee health, or Hazardous Materials, in each case as amended from time to time.
"Environmental Liabilities"
means all liabilities, monetary obligations, losses, damages, costs and expenses (including all reasonable fees, disbursements and expenses
of counsel, experts, or consultants, and costs of investigation and feasibility studies), fines, penalties, sanctions, and interest incurred
as a result of any claim or demand, or Remedial Action required, by any Governmental Authority or any third party, and which relate to
any Environmental Action.
"Environmental Lien"
means any Lien in favor of any Governmental Authority for Environmental Liabilities.
"Equipment"
means equipment (as that term is defined in the Code or the PPSA, as applicable).
"Equity Interests"
means, with respect to a Person, all of the shares, options, warrants, interests, participations, or other equivalents (regardless of
how designated) of or in such Person, whether voting or nonvoting, including capital stock (or other ownership or profit interests or
units), preferred stock, or any other "equity security" (as such term is defined in Rule 3a11-1 of the General Rules and
Regulations promulgated by the SEC under the Exchange Act).
"ERISA" means
the Employee Retirement Income Security Act of 1974, as amended, and any successor statute thereto.
"ERISA Affiliate"
means (a) any Person subject to ERISA whose employees are treated as employed by the same employer as the employees of any Loan Party
or its Subsidiaries under IRC Section 414(b), (b) any trade or business subject to ERISA whose employees are treated as employed
by the same employer as the employees of any Loan Party or its Subsidiaries under IRC Section 414(c), (c) solely for purposes
of Section 302 of ERISA and Section 412 of the IRC, any organization subject to ERISA that is a member of an affiliated service
group of which any Loan Party or any of its Subsidiaries is a member under IRC Section 414(m), or (d) solely for purposes of
Section 302 of ERISA and Section 412 of the IRC, any Person subject to ERISA that is a party to an arrangement with any Loan
Party or any of its Subsidiaries and whose employees are aggregated with the employees of such Loan Party or its Subsidiaries under IRC
Section 414(o).
-25-
"Erroneous Payment"
has the meaning specified therefor in Section 17.18 of this Agreement.
"Erroneous Payment Deficiency
Assignment" has the meaning specified therefor in Section 17.18 of this Agreement.
"Erroneous Payment Impacted
Loans" has the meaning specified therefor in Section 17.18 of this Agreement.
"Erroneous Payment Return
Deficiency" has the meaning specified therefor in Section 17.18 of this Agreement.
"EU Bail-In Legislation
Schedule" means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in
effect from time to time.
"Event of Default"
has the meaning specified therefor in Section 8 of this Agreement.
"Excess Cash Flow"
means, with respect to any fiscal period and with respect to Comtech, determined on a consolidated basis in accordance with GAAP the result
of:
(a) EBITDA
for such fiscal period, minus
(b) the
sum of:
(i) the
cash portion of Interest Expense paid during such fiscal period;
(ii) the
cash portion of income taxes paid during such fiscal period;
(iii) all
scheduled principal payments made in respect of the Term Loan and other Indebtedness for borrowed money permitted hereunder during such
fiscal period,
(iv) the
cash portion of Unfinanced Capital Expenditures made during such fiscal period,
(v) to
the extent included in the determination of EBITDA during such fiscal period pursuant to the definition thereof, and without duplication
of any other deduction from Excess Cash Flow set forth in this definition, all items added back in determining EBITDA pursuant to the
definition thereof for such period to the extent paid in cash,
-26-
(vi) the
excess, if any, of Net Working Capital at the end of such fiscal period over Net Working Capital at the beginning of such fiscal period
(or, if the difference results in an amount less than zero, minus the excess, if any, of Net Working Capital at the beginning of such
fiscal period over Net Working Capital at the end of such fiscal period), and
(vii) the
aggregate amount of Permitted Investments (other than in Comtech or any Subsidiary) solely to the extent made in cash during such fiscal
period by Comtech or any of its Subsidiaries.
"Excess Cash Flow Due
Date" has the meaning specified therefor in Section 2.4(e)(vii).
"Excess Cash Flow Period"
means, as applicable, (i) the First Excess Cash Flow Period, (ii) the Second Excess Cash Flow Period, and (iii) the fiscal
year period ending on each July 31 thereafter.
"Excess Cash Flow Sweep
Percentage" means 50%.
"Exchange Act"
means the Securities Exchange Act of 1934, as in effect from time to time.
"Exchange
Agreement" has the meaning specified therefor in Amendment No. 4.
"Excluded Swap Obligation"
means, with respect to any Loan Party, any Swap Obligation if, and to the extent that, all or a portion of the guaranty of such Loan Party
of (including by virtue of the joint and several liability provisions of Section 2.15), or the grant by such Loan Party of
a security interest to secure, such Swap Obligation (or any guaranty thereof) is or becomes illegal under the Commodity Exchange Act or
any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof)
by virtue of such Loan Party's failure for any reason to constitute an "eligible contract participant" as defined in the Commodity
Exchange Act and the regulations thereunder at the time the guaranty of such Loan Party or the grant of such security interest becomes
effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such
exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such guaranty or security interest
is or becomes illegal.
"Excluded
Taxes" means (i) any Tax imposed on the net income or net profits of any Recipient (including any branch profits
taxes), in each case (a) imposed by the jurisdiction (or by any political subdivision or taxing authority thereof) in which such
Recipient is organized or the jurisdiction (or by any political subdivision or taxing authority thereof) in which such Recipient's principal
office is located in or (b) that is an Other Connection Tax, (ii) Taxes that would not have been imposed but for a Recipient's
failure to comply with the requirements of Section 16.2 or 16.5 of this Agreement, (iii) in the case of a Lender,
U.S. federal withholding taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest
in a Loan or Commitment pursuant to applicable law in effect on the date on which (a) such Lender or Agent acquires such interest
in the Loan or Commitment (other than pursuant to an assignment request by a Borrower under Section 14.2) or (b) such
Lender changes its lending office, except in each case to the extent that, pursuant to Section 16, amounts with respect to
such Taxes were payable either to such Lender's assignor immediately before such Lender acquired the applicable interest in the Loan or
Commitment or to such Lender immediately before it changed its lending office, (iv) any U.S. federal withholding taxes imposed under
FATCA; and (v) any Canadian federal withholding Taxes imposed as a result of any Lender or any Participant (a) not dealing at
“arm’s length” (within the meaning of the Tax Act) with a Loan Party, (b) being a “specified non-resident
shareholder” (as defined in subsection 18(5) of the Tax Act) of a Loan Party or not dealing at “arm’s length”
with a “specified shareholder” of a Loan Party (in each case within the meaning of the Tax Act) or (c) such Recipient
being a “specified entity” as defined in the proposals to amend the Tax Act released on November 28, 2023 (Bill C-59)
with respect to “hybrid mismatch arrangements” (or as defined in any substantially similar successor proposals thereto), in
respect of a Loan Party, except in the case of (v)(a), (b) and (c) above where any such non-arm’s length, specified non-resident
shareholder, specified shareholder or specified entity relationship arises as a result of such Recipient having executed, delivered, become
a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any
other transaction pursuant to or enforced any Loan Document or Bank Product Agreement.
-27-
"Existing Agent"
means Citibank, N.A.
"Existing Credit Facility"
means that certain Third Amended and Restated Credit Agreement, dated as of November 7, 2023, by and among Comtech, as borrower,
the lenders party thereto and the Existing Agent.
"Extraordinary Receipts"
means any payments received by any Loan Party or any of its Subsidiaries not in the ordinary course of business (and not consisting of
proceeds described in Section 2.4(e)(iii) of this Agreement) consisting of (i) pension plan reversions, (ii) proceeds
of judgments, proceeds of settlements, or other consideration of any kind received in connection with any cause of action or claim (and
not consisting of proceeds described in Section 2.4(e)(iii) of this Agreement, but including proceeds of business interruption
insurance solely to the extent received more than six months after the occurrence and during the continuance of an Event of Default),
(iii) indemnity payments (other than to the extent such indemnity payments are immediately payable to a Person that is not an Affiliate
of any Loan Party or any of its Subsidiaries), including proceeds of representations and warranties insurance, and (iv) any purchase
price adjustment received in connection with any purchase agreement (other than ordinary course working capital adjustments and adjustments
applied to reduce deferred purchase prices, such as earnouts).
"FATCA" means
Sections 1471 through 1474 of the IRC, as of the date of this Agreement (or any amended or successor version that is substantively comparable
and not materially more onerous to comply with), and (a) any current or future regulations or official interpretations thereof, (b) any
agreements entered into pursuant to Section 1471(b)(1) of the IRC, and (c) any intergovernmental agreement entered into
by the United States (or any fiscal or regulatory legislation, rules, or practices adopted pursuant to any such intergovernmental agreement
entered into in connection therewith).
"FCPA" means
the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder.
-28-
"Federal Funds Rate"
means, for any period, a fluctuating interest rate per annum equal to, for each day during such period, the weighted average of the rates
on overnight Federal funds transactions with members of the Federal Reserve System, as published on the next succeeding Business Day by
the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations
for such day on such transactions received by Agent from three Federal funds brokers of recognized standing selected by it (and, if any
such rate is below zero, then the rate determined pursuant to this definition shall be deemed to be zero).
"Fee
Letter" means that certain Fee Letter, dated as of even date with this Agreement, among Borrowers and Agent, in form and substance
reasonably satisfactory to Agent, as amended, restated, amended and restated, supplemented or otherwise modified from time to time,
including as amended by that certain First Amendment to Fee Letter, dated as of the Amendment No. 1 Closing Date, among Borrowers
and Agent, that certain Second Amendment to Fee Letter, dated as of the Amendment No. 2 Closing Date, among Borrowers and Agent and,
that certain Third Amendment to Fee Letter, dated as of the Amendment No. 3 Closing Date, among Borrowers and Agent,
and that certain Fourth Amendment to Fee Letter, dated as of the Amendment No. 4 Closing Date, among Borrowers and Agent.
"Financial Advisor"
means an independent financial advisor acceptable to Agent and engaged by Administrative Borrower as provided in Section 5.20.
"Financial Statement
Delivery Date" has the meaning specified therefor in Section 9.3(a) of this Agreement.
"First Excess Cash Flow
Period" means the period commencing on the Closing Date and ending January 31, 2025.
"Fixed Charge Coverage
Ratio" means, with respect to any fiscal period and with respect to Comtech determined on a consolidated basis in accordance
with GAAP, the ratio of (a) EBITDA for such period minus Unfinanced Capital Expenditures made (to the extent not already incurred
in a prior period) or incurred during such period, to (b) Fixed Charges for such period.
"Fixed
Charges" means, with respect to any fiscal period and with respect to Comtech determined on a consolidated basis in accordance
with GAAP, the sum, without duplication, of (a) Interest Expense required to be paid (other than interest paid-in-kind, amortization
of financing fees, and other non-cash Interest Expense) during such period, (b) scheduled principal payments in respect of Indebtedness
that are required to be paid during such period (excluding, for the avoidance of doubt, principal payments relating to the Revolving Loans),
(c) all federal, state, provincial, territorial and local income taxes required to be paid during such period (net of tax refunds
received in cash to the extent such tax refunds are received in the period in which the applicable cash outlay for such taxes was made),
(d) all management, consulting, monitoring, and advisory fees paid to any Permitted Holder or its Affiliates during such period,
(e) all Restricted Payments paid during such period in cash, and (f) to the extent not otherwise deducted from EBITDA for such
period, all payments required to be made during such period in respect of any funding deficiency or funding shortfall with respect to
any Pension Plan or for any Withdrawal Liability; provided that (w) for purposes of calculating Fixed Charges for the
4 quarter period ending July 31, 2024, the amount of Interest Expense and scheduled principal payments in respect of the Term Loan
shall be determined by multiplying the actual amount of the Interest Expense and principal payment scheduled to be paid or repaid during
the period commencing on June 1, 2024 and ending on July 31, 2024 times (12/2), (x) for purposes of calculating Fixed Charges
for the 4 quarter period ending October 31, 2024, the amount of Interest Expense and scheduled principal payments in respect of the
Term Loan shall be determined by multiplying the actual amount of the Interest Expense and principal payment scheduled to be paid or repaid
during the period commencing on June 1, 2024 and ending on October 31, 2024 times (12/5), (y) for purposes of calculating
Fixed Charges for the 4 quarter period ending January 31, 2025, the amount of Interest Expense and scheduled principal payments in
respect of the Term Loan shall be determined by multiplying the sum of the actual amount of the Interest Expense and principal payments
scheduled to be paid or repaid during the period commencing on June 1, 2024 and ending on January 31, 2025 times (12/8), and
(z) for purposes of calculating Fixed Charges for the 4 quarter period ending April 30, 2025, the amount of Interest Expense
and scheduled principal payments in respect of the Term Loan shall be determined by multiplying the sum of the actual amount of the Interest
Expense and principal payments scheduled to be paid or repaid during the period commencing on June 1, 2024 and ending on April 30,
2025 times (12/11).
-29-
For the purposes of calculating
Fixed Charge Coverage Ratio for any Reference Period, if at any time during such Reference Period (and after the Closing Date), any Loan
Party or any of its Subsidiaries shall have made a Permitted Acquisition, Fixed Charges and Unfinanced Capital Expenditures for such Reference
Period shall be calculated after giving pro forma effect thereto or in such other manner acceptable to Agent as if any such Permitted
Acquisition occurred on the first day of such Reference Period.
"Flood Laws"
means the National Flood Insurance Act of 1968, Flood Disaster Protection Act of 1973, and related laws, rules and regulations, including
any amendments or successor provisions.
"Floor" means
a rate of interest equal to 2.00%.
"Foreign Lender"
means any Lender that is not a U.S. Person.
"Foreign Subsidiary"
means any direct or indirect subsidiary of any Loan Party that is organized under the laws of any jurisdiction other than the United States,
any state thereof or the District of Columbia.
"Funded
Indebtedness" means, as of any date of determination, with respect to Comtech, determined on a consolidated basis in accordance
with GAAP, all Indebtedness for borrowed money or letters of credit, Indebtedness consisting of obligations to pay the deferred purchase
price of assets and any earn-out or similar obligations, and Indebtedness consisting of contingent obligations classified as Indebtedness
on a balance sheet prepared in accordance with GAAP, including, in any event, but without duplication, with respect to the Loan Parties
and their Subsidiaries, the Loans and the amount of their Capitalized Lease Obligations and, unless contested by Comtech or any
of its Subsidiaries diligently and in good faith, trade payables outstanding for more than 60 days after the date such payable was due
(or, solely for purposes of calculating the Net Leverage Ratio on the Closing Date, more than 90 days after the date such payable was
due).
-30-
"Funding Date"
means the date on which a Borrowing occurs.
"Funding Losses"
has the meaning specified therefor in Section 2.12(b)(ii) of this Agreement.
"GAAP" means
generally accepted accounting principles as in effect from time to time in the United States, consistently applied.
"Going Concern Trigger
Event" means each occurrence of any of the following events: (i) with respect to any fiscal quarter (other than the fourth
fiscal quarter of any fiscal year), Comtech files with the SEC a Form 10-Q quarterly report
which contains footnote disclosure in the financial statements accompanied therewith that includes management’s assessment that
there is substantial doubt about Comtech’s ability to continue as a going concern with respect to such fiscal quarter and (ii) with
respect to any fiscal year, Comtech files with the SEC a Form 10-K annual report which includes the issuance by Comtech's
certified public accountant of a "going concern" or like qualification or exception with respect to the opinion accompanying
Comtech's consolidated and consolidating financial statements with respect to such fiscal year.
"Going
Concern Rescission Event" means to the extent that a Going Concern Trigger Event has occurred, the first date that Comtech files
with the SEC a Form 10-Q quarterly report or Form 10-K annual report (x) with respect to any Form 10-Q quarterly report,
that contains footnote disclosure in the financial statements accompanied therewith that affirmatively includes management’s assessment
that there no longer is substantial doubt about Comtech’s ability to continue as a going concern, as to which there is no disagreement
with Comtech’s certified public accountants as to such footnote disclosure, with the filing of any such Form 10-Q quarterly
report to be conclusive evidence of such lack of disagreement or (y) with respect to any fiscal year with respect to any Form 10-K
annual report, a "going concern" or like qualification or exception is not included in the opinion issued by Comtech’s
certified public accountant accompanying Comtech's consolidated and consolidating financial statements for
such fiscal year.
"Going
Concern Period" means the period from and retroactively effective as of the first day of the fiscal quarter in which a Going
Concern Trigger Event occurs and continuing until the last date of the fiscal quarter with respect to which a Going Concern Rescission
Event occurs relating to such Going Concern Trigger Event. For the avoidance of doubt, a Going Concern Trigger Event may occur
more than once during the term of this Agreement.
"Governing Documents"
means, with respect to any Person, the certificate or articles of incorporation, by-laws, or other organizational documents of such Person,
or any other agreement relating to the voting rights or corporate governance of such Person.
"Governmental
Authority" means the government of any nation or any political subdivision thereof, whether at the national, state, territorial,
provincial, county, municipal or any other level, and any agency, authority, instrumentality, regulatory body, court, tribunal,
central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of,
or pertaining to, government (including any supra-national bodies such as the European Union or the European Central Bank).
-31-
"Guarantor"
means (a) each Person that guaranties all or a portion of the Obligations, including any Person that is a "Guarantor" under
the Guaranty and Security Agreement or the Canadian Guarantee and Security Agreement, and (b) each other Person that becomes a guarantor
after the Closing Date pursuant to Section 3.6 or 5.11 of this Agreement.
"Guaranty and Security
Agreement" means a guaranty and security agreement, dated as of even date with this Agreement, in form and substance reasonably
satisfactory to Agent, executed and delivered by each of the US Loan Parties to Agent, as amended, amended and restated, restated, supplemented,
modified or otherwise in effect from time to time.
"Hazardous Discharge"
has the meaning specified therefor in Section 5.9(f) of this Agreement.
"Hazardous Materials"
means (a) substances that are defined or listed in, or otherwise classified pursuant to, any applicable laws or regulations as "hazardous
substances," "hazardous materials," "hazardous wastes," "toxic substances," or any other formulation
intended to define, list, or classify substances by reason of deleterious properties such as ignitability, corrosivity, reactivity, carcinogenicity,
reproductive toxicity, or "EP toxicity", (b) oil, petroleum, or petroleum derived substances, natural gas, natural gas
liquids, synthetic gas, drilling fluids, produced waters, and other wastes associated with the exploration, development, or production
of crude oil, natural gas, or geothermal resources, (c) any flammable substances or explosives or any radioactive materials, and
(d) asbestos in any form or electrical equipment that contains any oil or dielectric fluid containing levels of polychlorinated biphenyls
in excess of 50 parts per million.
"Hedge Agreement"
means a "swap agreement" as that term is defined in Section 101(53B)(A) of the Bankruptcy Code.
"Hedge Obligations"
means any and all obligations or liabilities, whether absolute or contingent, due or to become due, now existing or hereafter arising,
of each Loan Party arising under, owing pursuant to, or existing in respect of Hedge Agreements entered into with one or more of the Hedge
Providers.
"Hedge Provider"
means any Bank Product Provider that is a party to a Hedge Agreement with a Loan Party or otherwise provides Bank Products under clause
(b) of the definition thereof; provided, that if, at any time, a Lender ceases to be a Lender under this Agreement (prior
to the payment in full of the Obligations), then, from and after the date on which it ceases to be a Lender thereunder, neither it nor
any of its Affiliates shall constitute Hedge Providers and the obligations with respect to Hedge Agreements entered into with such former
Lender or any of its Affiliates shall no longer constitute Hedge Obligations.
-32-
"Indebtedness"
as to any Person means (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by
bonds, debentures, notes, or other similar instruments and all reimbursement or other obligations in respect of letters of credit, bankers
acceptances, or other financial products, (c) all obligations of such Person as a lessee under Capital Leases, (d) all obligations
or liabilities of others secured by a Lien on any asset of such Person, irrespective of whether such obligation or liability is assumed,
(e) all obligations of such Person to pay the deferred purchase price of assets (other than trade payables incurred in the ordinary
course of business and, for the avoidance of doubt, other than royalty payments payable in the ordinary course of business in respect
of non-exclusive licenses) and any earn-out or similar obligations, (f) all monetary obligations of such Person owing under Hedge
Agreements (which amount shall be calculated based on the amount that would be payable by such Person if the Hedge Agreement were terminated
on the date of determination), (g) any Disqualified Equity Interests of such Person, and (h) any obligation of such Person guaranteeing
or intended to guarantee (whether directly or indirectly guaranteed, endorsed, co-made, discounted, or sold with recourse) any obligation
of any other Person that constitutes Indebtedness under any of clauses (a) through (g) above. For purposes of this definition,
(i) the amount of any Indebtedness represented by a guaranty or other similar instrument shall be the lesser of the principal amount
of the obligations guaranteed and still outstanding and the maximum amount for which the guaranteeing Person may be liable pursuant to
the terms of the instrument embodying such Indebtedness, and (ii) the amount of any Indebtedness which is limited or is non-recourse
to a Person or for which recourse is limited to an identified asset shall be valued at the lesser of (A) if applicable, the limited
amount of such obligations, and (B) if applicable, the fair market value of such assets securing such obligation.
"Indemnified Liabilities"
has the meaning specified therefor in Section 10.3 of this Agreement.
"Indemnified Person"
has the meaning specified therefor in Section 10.3 of this Agreement.
"Indemnified Taxes"
means, (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by, or on account of any obligation of,
any Loan Party under any Loan Document, and (b) to the extent not otherwise described in the foregoing clause (a), Other Taxes.
"Independent Director
Candidates" has the meaning specified therefor in Section 5.22 of this Agreement.
"Independent Director
Interview Date" has the meaning specified therefor in Section 5.22 of this Agreement.
"Independent Director
Trigger Date" means June 18, 2025.
"Initial
Pricing Period" has the meaning set forth in the definition of Applicable
Margin.
"Insolvency Proceeding"
means any proceeding commenced by or against any Person under any provision of the Bankruptcy Code, the Bankruptcy and Insolvency Act
(Canada), the Winding-Up and Restructuring Act (Canada), the Companies’ Creditor Arrangement Act (Canada) or under
any other state, provincial, territorial or federal or foreign bankruptcy or insolvency law, assignments for the benefit of creditors,
formal or informal moratoria, compositions, extensions generally with creditors, or proceedings seeking reorganization, arrangement, or
other similar relief.
-33-
"Intellectual Property"
has the meaning assigned to such term in the Guaranty and Security Agreement or the Canadian Guarantee and Security Agreement, as applicable.
"Intercompany Subordination
Agreement" means an intercompany subordination agreement, dated as of even date with this Agreement, executed and delivered by
each Loan Party and each of its Subsidiaries, and Agent, the form and substance of which is reasonably satisfactory to Agent.
"Interest Expense"
means, for any period, the aggregate of the interest expense of Comtech for such period, determined on a consolidated basis in accordance
with GAAP.
"Interest Period"
means, with respect to each SOFR Loan, a period commencing on the date of the making of such SOFR Loan (or the continuation of a SOFR
Loan or the conversion of a Base Rate Loan to a SOFR Loan) and ending, in the case of Term Loans and Protective Advances, 1 or 3 months
thereafter, and in the case of Revolving Loans, 1 month thereafter; provided, that (a) interest shall accrue at the applicable
rate based upon Term SOFR from and including the first day of each Interest Period to, but excluding, the day on which any Interest Period
expires, (b) any Interest Period that would end on a day that is not a Business Day shall be extended to the next succeeding Business
Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business
Day, (c) with respect to an Interest Period that begins on the last Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at the end of such Interest Period), the Interest Period shall end on the last
Business Day of the calendar month that is 1 or 3 months after the date on which the Interest Period began, as applicable, (d) Borrowers
may not elect an Interest Period which will end after the Maturity Date and (e) no tenor that has been removed from this definition
pursuant to Section 2.12(d)(iii)(D) shall be available for specification in any SOFR Notice or conversion or continuation
notice.
"Inventory"
means inventory (as that term is defined in the Code or the PPSA, as applicable).
"Investment"
means, with respect to any Person, any investment by such Person in any other Person (including Affiliates) in the form of loans, guarantees,
advances, capital contributions (excluding (a) commission, travel, and similar advances to officers and employees of such Person
made in the ordinary course of business, and (b) bona fide accounts receivable arising in the ordinary course of business), or acquisitions
of Indebtedness, Equity Interests, or all or substantially all of the assets of such other Person (or of any division or business line
of such other Person), and any other items that are or would be classified as investments on a balance sheet prepared in accordance with
GAAP. The amount of any Investment shall be the original cost of such Investment plus the cost of all additions thereto, without any adjustment
for increases or decreases in value, or write-ups, write-downs, or write-offs with respect to such Investment.
"IRC" means
the Internal Revenue Code of 1986, as in effect from time to time.
"Joinder" means
a joinder agreement substantially in the form of Exhibit J-1 to this Agreement.
-34-
"Judgment Currency"
has the meaning specified therefor in Section 17.17 of this Agreement.
"Legal Reservations"
means (a) the principle that equitable remedies are remedies which may be granted or refused at the discretion of the court and principles
of good faith and fair dealing, (b) the limitation of enforcement by laws relating to insolvency, reorganisation and other laws generally
affecting the rights of creditors, (c) the existence of timing limitations with respect to the bringing of claims under applicable
limitation laws and the defenses of acquiescence, set-off or counterclaim and the possibility that an undertaking to assume liability
for, or to indemnify a Person against, non-payment of stamp duty may be void, (d) the principle that in certain jurisdictions and
under certain circumstances a Lien granted by way of fixed charge may be re-characterized as a floating charge or that security purported
to be constituted as an assignment may be re-characterized as a charge, (e) the principle that additional interest imposed pursuant
to any relevant agreement may be held to be unenforceable on the grounds that it is a penalty and thus void, (f) the principle that
a court may not give effect to an indemnity for legal costs incurred by an unsuccessful litigant, (g) the principle that the creation
or purported creation of collateral over any claim, other right, contract or agreement which is subject to a prohibition on transfer,
assignment or charging may be void, ineffective or invalid and may give rise to a breach of the contract or agreement (or contract or
agreement relating to or governing the claim or other right) over which security has purportedly been created, (h) the principle
that a court may not give effect to any parallel debt provisions, covenants to pay or other similar provisions, (i) the principle
that certain remedies in relation to regulated entities may require further approval from government or regulatory bodies or pursuant
to agreements with such bodies, (j) the principles of private and procedural laws which affect the enforcement of a foreign court
judgment, (k) similar principles, rights and defenses under the laws of any relevant jurisdiction, (l) the UK Guarantee Limitations
and (m) any other matters which are set out as qualifications or reservations (however described) in any legal opinion delivered
pursuant to the Loan Documents.
"Lender" has
the meaning set forth in the preamble to this Agreement, and shall also include any other Person made a party to this Agreement pursuant
to the provisions of Section 13.1 of this Agreement and "Lenders" means each of the Lenders or any one or more of
them.
"Lender Group"
means each of the Lenders and Agent, or any one or more of them.
-35-
"Lender Group Expenses"
means all (a) costs or expenses (including Taxes and insurance premiums) required to be paid by any Loan Party or its Subsidiaries
under any of the Loan Documents that are paid, advanced, or incurred by the Lender Group, (b) reasonable and documented out-of-pocket
fees or charges paid or incurred by Agent or Revolving Agent in connection with the Lender Group's transactions with each Loan Party and
its Subsidiaries under any of the Loan Documents, including reasonable and documented out-of-pocket attorneys' fees and expenses, photocopying,
notarization, couriers and messengers, telecommunication, public record searches, filing fees, recording fees, publication, real estate
surveys, real estate title policies and endorsements, and environmental audits, (c) Agent's and Revolving Agent's customary fees
and charges imposed or incurred in connection with any background checks or OFAC/PEP searches related to any Loan Party or its Subsidiaries,
(d) Agent's and Revolving Agent's customary fees and charges (as adjusted from time to time) with respect to the disbursement of
funds (or the receipt of funds) to or for the account of any Borrower (whether by wire transfer or otherwise), together with any out-of-pocket
costs and expenses incurred in connection therewith, (e) customary charges imposed or incurred by Agent, Revolving Agent or any Lender
resulting from the dishonor of checks payable by or to any Loan Party, (f) reasonable, documented out-of-pocket costs and expenses
paid or incurred by the Lender Group to correct any default or enforce any provision of the Loan Documents, or during the continuance
of an Event of Default, in gaining possession of, maintaining, handling, preserving, storing, shipping, selling, preparing for sale, or
advertising to sell the Collateral, or any portion thereof, irrespective of whether a sale is consummated, (g) field examination,
financial examination, appraisal, and valuation fees and expenses of Agent and Revolving Agent related to any field examinations, financial
examinations, appraisals, or valuation to the extent of the fees and charges (and up to the amount of any limitation) provided in Section 5.7(c) of
this Agreement, (h) Agent's, Revolving Agent's and Lenders' reasonable, documented out-of-pocket costs and expenses (including reasonable
and documented out-of-pocket attorneys' fees and expenses) relative to third party claims or any other lawsuit or adverse proceeding paid
or incurred, whether in enforcing or defending the Loan Documents or otherwise in connection with the transactions contemplated by the
Loan Documents, Agent's Liens in and to the Collateral, or the Lender Group's relationship with any Loan Party or any of its Subsidiaries,
(i) Agent's and Revolving Agent's reasonable and documented out-of-pocket costs and expenses (including reasonable and documented
attorneys' fees and due diligence expenses for one outside counsel of Agent, for one outside counsel of Revolving Agent and for such other
specialty counsel or local counsel as Agent or Revolving Agent reasonably elects to employ) incurred in advising, structuring, drafting,
reviewing, administering, or amending, waiving, or modifying the Loan Documents or any agreement among Lenders, and (j) Agent's,
Revolving Agent's and each Lender's reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys,
accountants, consultants, and other advisors fees and expenses) incurred in terminating, enforcing (including attorneys, accountants,
consultants, and other advisors fees and expenses incurred in connection with a "workout," a "restructuring," or an
Insolvency Proceeding concerning any Loan Party or any of its Subsidiaries or in exercising rights or remedies under the Loan Documents),
or defending the Loan Documents or any agreement among Lenders, irrespective of whether a lawsuit or other adverse proceeding is brought,
or in taking any enforcement action or any Remedial Action with respect to the Collateral.
"Lender Group Representatives"
has the meaning specified therefor in Section 17.9 of this Agreement.
"Lender-Related Person"
means, with respect to any Lender, such Lender, together with such Lender's Affiliates, officers, directors, employees, attorneys, and
agents.
"Lien" means
any mortgage, deed of trust, pledge, hypothecation, assignment, charge, deposit arrangement, encumbrance, easement, lien (statutory or
other), security interest, or other security arrangement and any other preference, priority, or preferential arrangement of any kind or
nature whatsoever, including any conditional sale contract or other title retention agreement, the interest of a lessor under a Capital
Lease and any synthetic or other financing lease having substantially the same economic effect as any of the foregoing.
"Liquidity"
means, as of any date of determination, the sum of Availability and Qualified Cash as of such date.
-36-
"Loan Account"
means an account maintained hereunder by Agent on its books, in which the Borrowers will be charged with all Loans made to, and all other
Obligations incurred by, the Borrowers.
"Loan
Documents" means this Agreement, the Canadian Security Documents, the Control Agreements, any Copyright Security Agreement, the
Fee Letter, the Revolver Fee Letter, the Amendment No. 1 Revolver Fee Letter, the Amendment No. 2 Revolver Fee Letter, the Amendment
No. 3 Revolver Fee Letter, the Guaranty and Security Agreement, the UK Security Documents, the Intercompany Subordination Agreement,
any Mortgages, any Patent Security Agreement, the Trademark Security Agreement, the Perfection Certificate, any Compliance Certificate,
any Notice of Borrowing, the Specified Preferred Subordination Agreement, any note or notes executed by Borrowers in connection with this
Agreement and payable to any member of the Lender Group, and any other instrument or agreement entered into, now or in the future, by
any Loan Party or any of its Subsidiaries and any member of the Lender Group in connection with this Agreement (but specifically
excluding Bank Product Agreements).
"Loan Party"
means any Borrower or any Guarantor.
"Loans" means,
collectively, any Revolving Loans, the Term Loan and any Protective Advances.
"Margin Stock"
as defined in Regulation U of the Board of Governors as in effect from time to time.
"Material Adverse Effect"
means (a) a material adverse effect in the business, operations, results of operations, assets, liabilities or financial condition
of the Loan Parties and their Subsidiaries, taken as a whole, (b) a material impairment of the Loan Parties' and their Subsidiaries'
ability to perform their obligations under the Loan Documents to which they are parties or of the Lender Group's ability to enforce the
Obligations or realize upon the Collateral (other than as a result of as a result of an action taken or not taken that is solely in the
control of Agent), or (c) a material impairment of the enforceability or priority of Agent's Liens with respect to all or a material
portion of the Collateral.
"Material Contract"
means, with respect to any Person, each contract or agreement to which such Person or any of its Subsidiaries is a party involving aggregate
consideration payable to or by such Person or such Subsidiary of $50,000,000 or more in any fiscal year.
"Material Indebtedness"
means any Indebtedness in an aggregate amount greater than $10,000,000.
"Maturity Date"
means the earlier of (a) July 31, 2028 (provided that, if such day is not a Business Day, then on the immediately preceding
Business Day) or (b) the date that is ninety (90) days prior to the earliest date that the Specified Preferred Subordinated Debt
shall (or may) otherwise become due and payable.
"Maximum Revolver Amount"
means, as of the Amendment No. 3 Closing Date, $54,750,000, decreased by the amount of permanent reductions in the Revolver Commitments
made after the Amendment No. 3 Closing Date in accordance with this Agreement; provided that for the avoidance of doubt, the Amendment
No. 1 Availability Block Amount shall not constitute a permanent reduction in the Revolver Commitments.
-37-
"Moody's" has
the meaning specified therefor in the definition of Cash Equivalents.
"Mortgages"
means, individually and collectively, one or more mortgages, deeds of trust, deeds of immovable hypothec or deeds to secure debt, executed
and delivered by a Loan Party or one of its Subsidiaries in favor of Agent, in form and substance reasonably satisfactory to Agent, that
encumber the Real Property Collateral.
"Multiemployer Plan"
means any multiemployer plan within the meaning of Section 3(37) or 4001(a)(3) of ERISA with respect to which any Loan Party
or ERISA Affiliate has an obligation to contribute or has any liability, contingent or otherwise or could be assessed withdrawal liability
assuming a complete withdrawal from any such multiemployer plan.
"Net Cash Proceeds"
means:
(a) with
respect to any sale or disposition by any Loan Party or any of its Subsidiaries of assets, the amount of cash proceeds received (directly
or indirectly) from time to time (whether as initial consideration (including,
for the avoidance of doubt, the "Advance Payment" (as defined in the Purchase Agreement)) or through the payment of deferred
consideration) by or on behalf of such Loan Party or such Subsidiary, in connection therewith after deducting therefrom only (i) the
amount of any Indebtedness secured by any Permitted Lien on any asset (other than (A) Indebtedness owing to Agent, Revolving Agent
or any Lender under this Agreement or the other Loan Documents and (B) Indebtedness assumed by the purchaser of such asset) which
is required to be, and is, repaid in connection with such sale or disposition, (ii) reasonable fees, commissions, and expenses related
thereto and required to be paid by such Loan Party or such Subsidiary in connection with such sale or disposition, (iii) taxes paid
or payable to any taxing authorities by such Loan Party or such Subsidiary in connection with such sale or disposition, in each case to
the extent, but only to the extent, that the amounts so deducted are, at the time of receipt of such cash, actually paid or payable to
a Person that is not an Affiliate of any Loan Party or any of its Subsidiaries, and are properly attributable to such transaction, and
(iv) all amounts that are set aside as a reserve (A) for adjustments in respect of the purchase price of such assets, (B) for
any liabilities associated with such sale or casualty, to the extent such reserve is required by GAAP, and (C) for the payment of
unassumed liabilities relating to the assets sold or otherwise disposed of at the time of, or within 30 days after, the date of such sale
or other disposition, to the extent that in each case the funds described above in this clause (iv) are (x) deposited into escrow
with a third party escrow agent or set aside in a separate Deposit Account that is subject to a Control Agreement in favor of Revolving
Agent (in its capacity as sub-agent of Agent), and (y) paid to Agent as a prepayment of the applicable Obligations in accordance
with Section 2.4(e) of this Agreement (or as otherwise set forth herein with respect to the Specified Permitted Individual
Disposition) at such time when such amounts are no longer required to be set aside as such a reserve; andprovided
that solely for purposes of Section 2.4(e)(iii) of this Agreement, (1) the Net Cash Proceeds of the Specified Permitted
Individual Disposition attributable to the "Advance
Payment" (as defined in the Purchase Agreement) shall be deemed
to be zero Dollars ($0) until the earliest of (x) the consummation of the Specified Permitted Individual Disposition, (y) the
receipt by Agent of written notice from the Administrative Borrower of its election to apply the Net Cash Proceeds of the Specified Permitted
Individual Disposition attributable to the "Advance Payment" (as defined in the Purchase Agreement) to a prepayment of the outstanding
principal amount of the Obligations in
accordance with Section 2.4(f)(ii) of this Agreement (the
"Specified Permitted Individual Disposition Prepayment Election"), and (z) the termination of the Purchase Agreement in
accordance with the terms
thereof (the "Specified Permitted Individual Disposition Termination"); provided further that, in the event of a Specified Permitted
Individual Disposition Termination, the Net Cash Proceeds of the Specified Permitted Individual Disposition attributable to the "Advance
Payment" (as defined in the Purchase Agreement) shall not exceed the amount of the "Advance Payment" (as defined in the
Purchase Agreement) retained by the Loan Parties pursuant to the terms of the Purchase Agreement, and (2) any optional prepayment
of the Term Loan Obligations
made by Borrowers during the period commencing on the Amendment No. 4 Closing Date and ending on the date of consummation the Specified
Permitted Individual Disposition (including, for the avoidance of doubt, a prepayment made during such period by way of a Specified Permitted
Individual Disposition Prepayment Election) shall be deducted from (or, in
the case of a Specified Permitted Individual Disposition Prepayment
Election, not included in) the amount of Net
Cash Proceeds of the Specified Permitted Individual Disposition calculated upon the consummation of the Specified Permitted Individual
Disposition; and
-38-
(b) with
respect to the issuance or incurrence of any Indebtedness by any Loan Party or any of its Subsidiaries, or the issuance by any Loan Party
or any of its Subsidiaries of any Equity Interests, the aggregate amount of cash received (directly or indirectly) from time to time (whether
as initial consideration or through the payment or disposition of deferred consideration) by or on behalf of such Loan Party or such Subsidiary
in connection with such issuance or incurrence, after deducting therefrom only (i) reasonable fees, commissions, and expenses related
thereto and required to be paid by such Loan Party or such Subsidiary in connection with such issuance or incurrence, and (ii) taxes
paid or payable to any taxing authorities by such Loan Party or such Subsidiary in connection with such issuance or incurrence, in each
case to the extent, but only to the extent, that the amounts so deducted are, at the time of receipt of such cash, actually paid or payable
to a Person that is not an Affiliate of any Loan Party or any of its Subsidiaries, and are properly attributable to such transaction.
"Net Leverage Ratio"
means, as of any date of determination, the result of (a) an amount equal to (i) the amount of Funded Indebtedness (other than
the Specified Preferred Subordinated Debt) as of such date, minus (ii) the lesser of (x) $20,000,000 and (y) the
amount of Qualified Cash as of such date, to (b) TTM EBITDA; provided that, for purposes of determining Funded Indebtedness,
as of any date of determination, Revolver Usage shall be deemed to be the Average Revolver Usage as of such date of determination; provided
that, for purposes of determining Revolver Usage during the period commencing on the Closing Date and ending on the 3 month anniversary
of the Closing Date, such Indebtedness, as of any date of determination, shall be deemed to be the average daily amount of such Indebtedness
for the period ending on such date of determination.
"Net Leverage Ratio
Calculation" has the meaning set forth in the definition of Applicable Marginmeans
the most recent Net Leverage Ratio calculation delivered to Agent
pursuant to Section 5.1 of this Agreement.
-39-
"Net Working Capital"
means, as of any date of determination, Current Assets as of such date minus Current Liabilities as of such date.
"Non-Consenting Lender"
has the meaning specified therefor in Section 14.2(a) of this Agreement.
"Non-Defaulting Lender"
means each Lender other than a Defaulting Lender.
"Notice of Borrowing"
means a certificate substantially in the form of Exhibit D-1 to this Agreement delivered by an Authorized Person of Comtech
to Agent (with a copy to Revolving Agent with respect to any Revolving Loans).
"Notification Event"
means (a) the occurrence of a "reportable event" described in Section 4043 of ERISA for which the 30-day notice requirement
has not been waived by applicable regulations issued by the PBGC, (b) the withdrawal of any Loan Party or ERISA Affiliate from a
Pension Plan during a plan year in which it was a "substantial employer" as defined in Section 4001(a)(2) of ERISA,
(c) the termination of a Pension Plan, the filing of a notice of intent to terminate a Pension Plan or the treatment of a Pension
Plan amendment as a termination, under Section 4041 of ERISA, if the plan assets are not sufficient to pay all plan liabilities,
(d) the institution of proceedings to terminate, or the appointment of a trustee with respect to, any Pension Plan by the PBGC or
any Pension Plan or Multiemployer Plan administrator, (e) any other event or condition that would constitute grounds under Section 4042(a) of
ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan, (f) the imposition of a Lien pursuant
to the IRC or ERISA in connection with any Employee Benefit Plan or the existence of any facts or circumstances that could reasonably
be expected to result in the imposition of a Lien, (g) the partial or complete withdrawal of any Loan Party or ERISA Affiliate from
a Multiemployer Plan (other than any withdrawal that would not constitute an Event of Default under Section 8.12), (h) any
event or condition that results in the insolvency of a Multiemployer Plan within the meaning of Title IV of ERISA, (i) [reserved],
(j) any Pension Plan being in "at risk status" within the meaning of IRC Section 430(i), (k) any Multiemployer
Plan being in "endangered status" or "critical status" within the meaning of IRC Section 432(b) or the determination
that any Multiemployer Plan is or is expected to be insolvent within the meaning of Title IV of ERISA, (l) with respect to any Pension
Plan, any Loan Party or ERISA Affiliate incurring a substantial cessation of operations within the meaning of ERISA Section 4062(e),
(m) an "accumulated funding deficiency" within the meaning of the IRC or ERISA (including Section 412 of the IRC or
Section 302 of ERISA) or the failure of any Pension Plan to meet the minimum funding standards within the meaning of the IRC or ERISA
(including Section 412 of the IRC or Section 302 of ERISA), in each case, whether or not waived, (n) the filing of an application
for a waiver of the minimum funding standards within the meaning of the IRC or ERISA (including Section 412 of the IRC or Section 302
of ERISA) with respect to any Pension Plan or Multiemployer Plan, (o) the failure to make by its due date a required payment or contribution
with respect to any Pension Plan, or (p) any event that results in or could reasonably be expected to result in a liability by a
Loan Party pursuant to Title I of ERISA or the excise tax provisions of the IRC relating to Employee Benefit Plans or any event that results
in or could reasonably be expected to result in a liability to any Loan Party or ERISA Affiliate pursuant to Title IV of ERISA or Section 401(a)(29)
of the IRC.
-40-
"Obligations"
means (a) all loans (including the Loans), debts, principal, interest (including any interest that accrues after the commencement
of an Insolvency Proceeding, regardless of whether allowed or allowable in whole or in part as a claim in any such Insolvency Proceeding),
premiums, liabilities, obligations (including indemnification obligations), fees (including the fees provided for in the Fee Letter, the
Revolver Fee Letter, the Amendment No. 1 Revolver Fee Letter and the Amendment No. 2 Revolver Fee Letter), Lender Group
Expenses (including any fees or expenses that accrue after the commencement of an Insolvency Proceeding, regardless of whether allowed
or allowable in whole or in part as a claim in any such Insolvency Proceeding), guaranties, and all covenants and duties of any other
kind and description owing by any Loan Party arising out of, under, pursuant to, in connection with, or evidenced by this Agreement or
any of the other Loan Documents and irrespective of whether for the payment of money, whether direct or indirect, absolute or contingent,
due or to become due, now existing or hereafter arising, and including all interest not paid when due and all other expenses or other
amounts that any Loan Party is required to pay or reimburse by the Loan Documents or by law or otherwise in connection with the Loan Documents,
and (b) all Bank Product Obligations; provided that, anything to the contrary contained in the foregoing notwithstanding,
the Obligations shall exclude any Excluded Swap Obligation. Without limiting the generality of the foregoing, the Obligations of Borrowers
under the Loan Documents include the obligation to pay (i) the principal of the Loans, (ii) interest accrued on the Loans, (iii) Lender
Group Expenses, (iv) fees payable under this Agreement or any of the other Loan Documents, and (v) indemnities and other amounts
payable by any Loan Party under any Loan Document. Any reference in this Agreement or in the Loan Documents to the Obligations shall include
all or any portion thereof and any extensions, modifications, renewals, or alterations thereof, both prior and subsequent to any Insolvency
Proceeding.
"OFAC" means
The Office of Foreign Assets Control of the U.S. Department of the Treasury.
"Originating Lender"
has the meaning specified therefor in Section 13.1(e) of this Agreement.
"Other Connection Taxes"
means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction
imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations
under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced
any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
"Other Taxes"
means all present or future stamp, court, excise, value added, or documentary, intangible, recording, filing or similar Taxes that arise
from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection
of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed
with respect to an assignment (other than an assignment made pursuant to Section 2.13(b) or Section 14.2).
-41-
"Overadvance"
means, as of any date of determination, that the Revolver Usage is greater than the lesser of (a) the Borrowing Base at such time
and (b) the Maximum Revolver Amount less the Amendment No. 1 Availability Block Amount at such time.
"Participant"
has the meaning specified therefor in Section 13.1(e) of this Agreement.
"Participant Register"
has the meaning set forth in Section 13.1(i) of this Agreement.
"Patent Security Agreement"
has the meaning specified therefor in the Guaranty and Security Agreement.
"Patriot Act"
has the meaning specified therefor in Section 4.13 of this Agreement.
"Payment Recipient"
has the meaning specified therefor in Section 17.18 of this Agreement.
"PBGC" means
the Pension Benefit Guaranty Corporation or any successor agency.
"Pension Plan"
means any Employee Benefit Plan, other than a Multiemployer Plan, which is subject to the provisions of Title IV or Section 302 of
ERISA or Sections 412 or 430 of the IRC sponsored, maintained, or contributed to by any Loan Party or ERISA Affiliate or to which any
Loan Party or ERISA Affiliate has any liability, contingent or otherwise.
"Perfection Certificate"
means a certificate in the form of Exhibit P-1 to this Agreement.
"Perfection
Requirements" means the making or the procuring of any appropriate registration, filing, recordings, enrolments, registrations,
notations in stock registries, notarizations, notifications, endorsements and/or stampings of the Loan Documents and/or the security created
thereunder.
"Periodic Term SOFR
Determination Day" has the meaning specified therefor in the definition of Term SOFR.
"Permitted Acquisition"
means any Acquisition so long as:
(a) no
Default or Event of Default shall have occurred and be continuing or would result from the consummation of the proposed Acquisition and
the proposed Acquisition is consensual,
(b) no
Indebtedness will be incurred, assumed, or would exist with respect to any Loan Party or its Subsidiaries as a result of such Acquisition,
other than Indebtedness permitted under clauses (f) or (g) of the definition of Permitted Indebtedness and no Liens will be
incurred, assumed, or would exist with respect to the assets of any Loan Party or its Subsidiaries as a result of such Acquisition other
than Permitted Liens,
-42-
(c) Borrowers
have provided Agent and Revolving Agent with written confirmation, supported by reasonably detailed calculations, that on a pro forma
basis (including pro forma adjustments arising out of events which are directly attributable to such proposed Acquisition, are factually
supportable, and are expected to have a continuing impact, in each case, determined as if the combination had been accomplished at the
beginning of the relevant period; such eliminations and inclusions determined on a basis consistent with Article 11 of Regulation
S-X promulgated under the Securities Act and as interpreted by the staff of the SEC, but without giving effect to any modifications
relating to "Management’s Adjustments" promulgated after December 31, 2020) by adding the historical combined financial
statements of Comtech (including the combined financial statements of any other Person or assets that were the subject of a prior Permitted
Acquisition during the relevant period) to the historical consolidated financial statements of the Person to be acquired (or the historical
financial statements related to the assets to be acquired) pursuant to the proposed Acquisition, (i) the Loan Parties and their Subsidiaries
would have been in compliance with the financial covenants in Section 7 of this Agreement for the fiscal quarter ended immediately
prior to the proposed date of consummation of such proposed Acquisition (with respect to Section 7(b), determined as if the
applicable maximum Net Leverage Ratio were 0.15:1.00 less than the maximum Net Leverage Ratio set forth for such date), (ii) the
Net Leverage Ratio (as of the last day of the period of four consecutive fiscal quarters of the Borrowers most recently ended for which
financial statements have been delivered pursuant to Schedule 5.1(a) or 5.1(e)) is less than 2.50 to 1.00, calculated on a pro forma
basis after giving effect to such proposed Acquisition and any incurrence of Indebtedness in connection therewith, and (iii) after
giving effect to the consummation of such proposed Acquisition, Liquidity is at least $32,500,000 (of which at least $20,000,000 is Availability),
(d) Borrowers
have provided Agent and Revolving Agent with its due diligence package relative to the proposed Acquisition, including forecasted balance
sheets, profit and loss statements, and cash flow statements of the Person or assets to be acquired, all prepared on a basis consistent
with such Person's (or assets') historical financial statements, together with appropriate supporting details and a statement of underlying
assumptions for the one year period following the date of the proposed Acquisition, on a quarter by quarter basis), and, to the extent
available, all other information reasonably requested by Agent in connection with the proposed Acquisition; provided, that with
respect to Acquisitions for which the total consideration (including any earnout or other deferred purchase price component) is less than
$5,000,000, each of the items set forth in this clause (d) shall only be required to be delivered to Agent to the extent such items
are available or have been prepared,
(e) the
assets being acquired or the Person whose Equity Interests are being acquired did not have EBITDA (calculated on a pro forma basis after
giving effect to the consummation of the proposed Acquisition, adjusted in accordance with the definition of EBITDA set forth herein)
during the 12 consecutive month period most recently concluded prior to the date of the proposed Acquisition of less than $0,
(f) Borrowers
have provided Agent and Revolving Agent with written notice of the proposed Acquisition at least fifteen (15) Business Days prior to the
anticipated closing date of the proposed Acquisition (or such later date as permitted by Agent and Revolving Agent in their reasonable
discretion) and, not later than five (5) Business Days prior to the anticipated closing date of the proposed Acquisition (or such
later date as permitted by Agent in its reasonable discretion), copies of the acquisition agreement and other material documents relative
to the proposed Acquisition,
-43-
(g) the
assets being acquired (other than a de minimis amount of assets in relation to Comtech's and its Subsidiaries' total assets), or
the Person whose Equity Interests are being acquired, are useful in or engaged in, as applicable, the business of the Loan Parties and
their Subsidiaries or a business reasonably related thereto,
(h) the
assets being acquired (other than a de minimis amount of assets in relation to the assets being acquired) are located within the
United States, Canada or the United Kingdom or the Person whose Equity Interests are being acquired is organized in a jurisdiction located
within the United States, Canada or the United Kingdom,
(i) the
subject assets or Equity Interests, as applicable, are being acquired directly by a Borrower or one of its Subsidiaries that is a Loan
Party, and, in connection therewith, the applicable Loan Party shall have complied with Section 5.11 or 5.12 of this
Agreement, as applicable, of this Agreement and, in the case of an acquisition of Equity Interests, the Person whose Equity Interests
are acquired shall become a Loan Party and the applicable Loan Party shall have demonstrated to Agent that the new Loan Parties have received
consideration sufficient to make the joinder documents binding and enforceable against such new Loan Parties,
(j) the
purchase consideration payable in respect of all Permitted Acquisitions (including the proposed Acquisition and including deferred payment
obligations (including Earn-Outs)) shall not exceed $30,000,000 individually and $75,000,000 in the aggregate, and
(k) Agent
and Revolving Agent shall have received a certificate in form and substance satisfactory to Agent and Revolving Agent executed by an Authorized
Person of Comtech that the conditions set forth in clauses (a) through (j) have been satisfied.
"Permitted Discretion"
means a determination made in good faith in the exercise of commercially reasonable (from the perspective of a senior secured lender)
credit and business judgment.
"Permitted Dispositions"
means:
(a) sales,
abandonment, or other dispositions of Equipment that is substantially worn, damaged, or obsolete or no longer used or useful in the ordinary
course of business and leases or subleases of Real Property not useful in the conduct of the business of the Loan Parties and their Subsidiaries,
(b) sales
of Inventory to buyers in the ordinary course of business,
(c) the
use or transfer of money or Cash Equivalents in a manner that is not prohibited by the terms of this Agreement or the other Loan Documents,
(d) the
licensing, on a non-exclusive basis, of Intellectual Property (i) in the ordinary course of business or (ii) consistent with
past practice,
-44-
(e) the
granting of Permitted Liens,
(f) the
sale or discount, in each case without recourse, of accounts receivable arising in the ordinary course of business, but only in connection
with the compromise or collection thereof,
(g) any
involuntary loss, damage or destruction of property,
(h) any
involuntary condemnation, seizure or taking, by exercise of the power of eminent domain or otherwise, or confiscation or requisition of
use of property,
(i) the
leasing or subleasing of assets of any Loan Party or its Subsidiaries in the ordinary course of business,
(j) the
sale or issuance of Equity Interests (other than Disqualified Equity Interests) of Comtech to the extent not resulting in a Change of
Control,
(k) (i) the
lapse of registered Intellectual Property of any Loan Party or any of its Subsidiaries to the extent not economically desirable in the
conduct of its business in the sole business judgement of the Loan Parties, or (ii) the abandonment of rights in Intellectual Property
(x) in the ordinary course of business, (y) consistent with past practice, or (z) as determined by any Loan Party in its
reasonable business judgment, so long as (in each case under clauses (i) and (ii)), such lapse is not materially adverse to the interests
of any Loan Party or the Lender Group,
(l) the
making of Restricted Payments that are expressly permitted to be made pursuant to this Agreement,
(m) the
making of Permitted Investments,
(n) so
long as no Event of Default has occurred and is continuing or would immediately result therefrom, transfers of assets (i) from any
Loan Party or any of its Subsidiaries to a Loan Party, and (ii) from any Subsidiary of any Loan Party that is not a Loan Party to
any other Subsidiary of any Loan Party,
(o) dispositions
of Equipment or Real Property to the extent that (i) such property is exchanged for credit against the purchase price of similar
replacement property, or (ii) the proceeds of such disposition are promptly applied to the purchase price of such replacement property;
provided, that to the extent the property being transferred constitutes Collateral, such replacement property shall constitute
Collateral,
(p) dispositions
of assets acquired by the Loan Parties and their Subsidiaries pursuant to a Permitted Acquisition consummated within 12 months of the
date of the proposed disposition so long as (i) the consideration received for the assets to be so disposed is at least equal to
the fair market value of such assets, (ii) the assets to be so disposed are not necessary or economically desirable in connection
with the business of the Loan Parties and their Subsidiaries, and (iii) the assets to be so disposed are readily identifiable as
assets acquired pursuant to the subject Permitted Acquisition,
-45-
(q) sale
and leaseback transactions permitted by Section 6.14,
(r) Specified
Permitted Dispositions, so long as (A) such Specified Permitted Disposition is on terms, and subject to documentation, reasonably
acceptable to Agent, (B) the Net Cash Proceeds from each such Specified Permitted Disposition represent at least 80% of the gross
proceeds from each such Specified Permitted Disposition and (C) 100% of such Net Cash Proceeds are applied against the outstanding
principal amount of the Obligations in accordance with Section 2.4(f)(ii),
(s) the
Specified Permitted Individual Disposition, so long as (A) the Specified Permitted Individual Disposition is on terms, and subject
to documentation, reasonably acceptable to Agent, (B) an amount equal to 65% of the Net Cash Proceeds from the Specified Permitted
Individual Disposition is applied against the outstanding principal amount of the Obligations in accordance with Section 2.4(f)(ii) and
(C) an amount equal to 35% of the Net Cash Proceeds from the Specified Permitted Individual Disposition is applied against the outstanding
principal amount of the Specified Preferred Subordinated Debt, and
(t) sales
or dispositions of fixed assets (including intangible property related to such fixed assets) not otherwise permitted in clauses (a) through
(r) above so long as made at fair market value and the aggregate fair market value of all assets disposed of in any fiscal year (including
the proposed disposition) would not exceed $2,500,000.
"Permitted Holders"
means, collectively, (a) White Hat Capital Partners LP and its Affiliates and (b) Magnetar Capital LLC and its Affiliates.
"Permitted Indebtedness"
means:
(a) Indebtedness
in respect of the Obligations,
(b) Indebtedness
as of the Closing Date set forth on Schedule P-1 to this Agreement (provided, that any Indebtedness outstanding immediately
prior to the Closing Date that is unsecured and less than $50,000 individually, or $150,000 in the aggregate for all such Indebtedness,
shall not be required to be set forth on Schedule P-1) and any Refinancing Indebtedness in respect of such Indebtedness,
(c) Permitted
Purchase Money Indebtedness and any Refinancing Indebtedness in respect of such Indebtedness,
(d) Indebtedness
arising in connection with the endorsement of instruments or other payment items for deposit,
(e) Indebtedness
consisting of (i) unsecured guarantees incurred in the ordinary course of business with respect to surety and appeal bonds, performance
bonds, bid bonds, appeal bonds, completion guarantee and similar obligations so long as the underlying Indebtedness that is being guaranteed
is permitted pursuant to the terms hereof; and (ii) unsecured guarantees arising with respect to customary indemnification obligations
to purchasers in connection with Permitted Dispositions,
-46-
(f) unsecured
Indebtedness of any Loan Party that is incurred on the date of the consummation of a Permitted Acquisition solely for the purpose of consummating
such Permitted Acquisition so long as (i) no Event of Default has occurred and is continuing or would result therefrom, (ii) such
unsecured Indebtedness is not incurred for working capital purposes, (iii) such unsecured Indebtedness does not mature prior to the
date that is 91 days after the Maturity Date, (iv) such unsecured Indebtedness does not amortize until 91 days after the Maturity
Date, (v) such unsecured Indebtedness does not provide for the payment of interest thereon in cash or Cash Equivalents prior to the
date that is 91 days after the Maturity Date, and (vi) such Indebtedness is subordinated in right of payment to the Obligations on
terms and conditions reasonably satisfactory to Agent and is otherwise on terms and conditions (including economic terms and absence of
covenants) reasonably satisfactory to Agent,
(g) Acquired
Indebtedness in an amount not to exceed $5,000,000 outstanding at any one time,
(h) Indebtedness
incurred in the ordinary course of business under performance, surety, statutory, or appeal bonds in an amount not to exceed $215,000,000
in the aggregate,
(i) Indebtedness
owed to any Person providing property, casualty, liability, or other insurance to any Loan Party or any of its Subsidiaries, so long as
the amount of such Indebtedness is not in excess of the amount of the unpaid cost of, and shall be incurred only to defer the cost of,
such insurance for the year in which such Indebtedness is incurred and such Indebtedness is outstanding only during such year,
(j) the
incurrence by any Loan Party or its Subsidiaries of Indebtedness under Hedge Agreements that is incurred for the bona fide purpose of
hedging the interest rate, commodity, or foreign currency risks associated with such Loan Party's or such Subsidiary's operations and
not for speculative purposes,
(k) Indebtedness
incurred in the ordinary course of business in respect of credit cards, credit card processing services, debit cards, stored value cards,
commercial cards (including so-called "purchase cards", "procurement cards" or "p-cards"), or Cash Management
Services,
(l) unsecured
Indebtedness of any Loan Party owing to employees, former employees, former officers, directors, or former directors (or any spouses,
ex-spouses, or estates of any of the foregoing) incurred in connection with the repurchase or redemption by such Loan Party of the Equity
Interests of Comtech that has been issued to such Persons, so long as (i) no Default or Event of Default has occurred and is continuing
or would result from the incurrence of such Indebtedness, (ii) the aggregate amount of all such Indebtedness outstanding at any one
time does not exceed $1,000,000, and (iii) such Indebtedness is subordinated in right of payment to the Obligations on terms and
conditions reasonably acceptable to Agent,
(m) contingent
liabilities in respect of any indemnification obligation, adjustment of purchase price, non-compete, or similar obligation of any Loan
Party incurred in connection with the consummation of one or more Permitted Acquisitions,
(n) Indebtedness
comprising Permitted Investments,
-47-
(o) unsecured
Indebtedness incurred in respect of netting services, overdraft protection, and other like services, in each case, incurred in the ordinary
course of business,
(p) unsecured
Indebtedness of any Loan Party or its Subsidiaries in respect of Earn-Outs owing to sellers of assets or Equity Interests to such Loan
Party or its Subsidiaries that is incurred in connection with the consummation of one or more Permitted Acquisitions so long as such unsecured
Indebtedness is on terms and conditions reasonably acceptable to Agent,
(q) accrual
of interest, accretion or amortization of original issue discount, or the payment of interest in kind, in each case, on Indebtedness that
otherwise constitutes Permitted Indebtedness,
(r) Indebtedness
in respect of letters of credit in an aggregate outstanding amount not to exceed $10,000,000 at any time,
(s) so
long as such Indebtedness is subject to the Specified Preferred Subordination Agreement, the Specified Preferred Subordinated Debt in
an aggregate principal amount not to exceed $100,000,000 (excluding any capitalized interest paid in kind in accordance with the Specified
Preferred Subordinated Debt Documents and the Specified Preferred Subordination Agreement), and
(t) any
other Indebtedness incurred by any Loan Party or any of its Subsidiaries in an aggregate outstanding amount not to exceed $5,000,000 at
any one time.
"Permitted Intercompany
Advances" means loans made by (a) a Loan Party to another Loan Party (other than a Specified Loan Party), (b) a Specified
Loan Party to another Specified Loan Party, (c) a Loan Party (other than a Specified Loan Party) to a Specified Loan Party so long
as the aggregate amount of all such loans (by type, not by the borrower) does not exceed $15,000,000; provided that, for the avoidance
of doubt, any loans made by a Loan Party (other than a Specified Loan Party) to a Specified Loan Party prior to the Closing Date shall
not count towards such permitted amount, (d) a Subsidiary of a Loan Party that is not a Loan Party to another Subsidiary of a Loan
Party that is not a Loan Party, (e) a Subsidiary of a Loan Party that is not a Loan Party to a Loan Party, so long as the parties
thereto are party to the Intercompany Subordination Agreement, and (f) a Loan Party to a Subsidiary of a Loan Party that is not a
Loan Party so long as (i) the aggregate amount of all such loans (by type, not by the borrower) does not exceed $2,500,000 outstanding
at any one time; provided that, for the avoidance of doubt, any loans made by a Loan Party to a Subsidiary organized under the
laws of England and Wales prior to the Closing Date shall not count towards such permitted amount, (ii) at the time of the making
of such loan, no Event of Default has occurred and is continuing or would result therefrom, and (iii) Availability after giving effect
to such loan is not less than $35,000,000.
"Permitted Investments"
means:
(a) Investments
in cash and Cash Equivalents,
(b) Investments
in negotiable instruments deposited or to be deposited for collection in the ordinary course of business,
-48-
(c) advances
made in connection with purchases of goods or services in the ordinary course of business,
(d) Investments
received in settlement of amounts due to any Loan Party or any of its Subsidiaries effected in the ordinary course of business or owing
to any Loan Party or any of its Subsidiaries as a result of Insolvency Proceedings involving an Account Debtor or upon the foreclosure
or enforcement of any Lien in favor of a Loan Party or its Subsidiaries,
(e) Investments
owned by any Loan Party or any of its Subsidiaries on the Closing Date (provided, that any such Investments in excess of $50,000
individually or $150,000 in the aggregate shall be set forth on Schedule P-2 to this Agreement),
(f) guarantees
permitted under the definition of Permitted Indebtedness,
(g) Permitted
Intercompany Advances,
(h) Equity
Interests or other securities acquired in connection with the satisfaction or enforcement of Indebtedness or claims due or owing to a
Loan Party or its Subsidiaries (in bankruptcy of customers or suppliers or otherwise outside the ordinary course of business) or as security
for any such Indebtedness or claims,
(i) deposits
of cash made in the ordinary course of business to secure performance of operating leases,
(j) (i) non-cash
loans and advances to employees, officers, and directors of a Loan Party or any of its Subsidiaries for the purpose of purchasing Equity
Interests in Comtech so long as the proceeds of such loans are used in their entirety to purchase such Equity Interests in Comtech, and
(ii) loans and advances to employees and officers of a Loan Party or any of its Subsidiaries in the ordinary course of business for
any other business purpose and in an aggregate amount not to exceed $1,000,000 at any one time,
(k) Permitted
Acquisitions,
(l) Investments
in the form of capital contributions and the acquisition of Equity Interests made by any Loan Party in any other Loan Party (other than
capital contributions to or the acquisition of Equity Interests of Comtech),
(m) Investments
resulting from entering into (i) Bank Product Agreements, or (ii) agreements relative to obligations permitted under clause
(j) of the definition of Permitted Indebtedness,
(n) equity
Investments by any Loan Party in any Subsidiary of such Loan Party which is required by law to maintain a minimum net capital requirement
or as may be otherwise required by applicable law,
(o) Investments
held by a Person acquired in a Permitted Acquisition to the extent that such Investments were not made in contemplation of or in connection
with such Permitted Acquisition and were in existence on the date of such Permitted Acquisition, and
-49-
(p) so
long as no Event of Default has occurred and is continuing or would result therefrom, any other Investments in an aggregate amount not
to exceed $1,000,000 during the term of this Agreement.
"Permitted Liens"
means:
(a) Liens
granted to, or for the benefit of, Agent (and in the case of Control Agreements, Revolving Agent, in its capacity as sub-agent of Agent)
for the benefit of Agent, Revolving Agent, Lenders and Bank Product Providers, to secure the Obligations,
(b) Liens
for Taxes that are not yet due or are being contested pursuant to a Permitted Protest,
(c) judgment
Liens arising solely as a result of the existence of judgments, orders, or awards that do not constitute an Event of Default under Section 8.3
of this Agreement,
(d) Liens
set forth on Schedule P-3 to this Agreement; provided, that to qualify as a Permitted Lien, any such Lien described on Schedule
P-3 to this Agreement shall only secure the Indebtedness that it secures on the Closing Date and any Refinancing Indebtedness in respect
thereof,
(e) the
interests of lessors under operating leases and non-exclusive licensors under license agreements,
(f) purchase
money Liens on fixed assets or the interests of lessors under Capital Leases to the extent that such Liens or interests secure Permitted
Purchase Money Indebtedness and so long as (i) such Lien attaches only to the fixed asset purchased or acquired and the proceeds
thereof, and (ii) such Lien only secures the Indebtedness that was incurred to acquire the fixed asset purchased or acquired or any
Refinancing Indebtedness in respect thereof,
(g) Liens
arising by operation of law in favor of warehousemen, landlords, carriers, mechanics, materialmen, laborers, or suppliers, incurred in
the ordinary course of business and not in connection with the borrowing of money, and which Liens either (i) are for sums not yet
delinquent, or (ii) are the subject of Permitted Protests,
(h) Liens
on amounts deposited to secure Comtech's and its Subsidiaries' obligations in connection with worker's compensation or other unemployment
insurance,
(i) Liens
on amounts deposited to secure Comtech's and its Subsidiaries' obligations in connection with the making or entering into of bids, tenders,
or leases in the ordinary course of business and not in connection with the borrowing of money,
(j) Liens
on amounts deposited to secure Comtech's and its Subsidiaries' reimbursement obligations with respect to surety or appeal bonds obtained
in the ordinary course of business and permitted under clause (h) of the definition of Permitted Indebtedness so long as such Liens
are not "all asset" or "substantially all asset" Liens and remain unperfected,
-50-
(k) with
respect to any Real Property, easements, rights of way, and zoning restrictions that do not materially interfere with or impair the use
or operation thereof,
(l) non-exclusive
licenses of rights in Intellectual Property, (i) in the ordinary course of business or (ii) consistent with past practice,
(m) Liens
that are replacements of Permitted Liens to the extent that the original Indebtedness is the subject of permitted Refinancing Indebtedness
and so long as the replacement Liens only encumber those assets that secured the original Indebtedness,
(n) rights
of setoff or bankers' liens upon deposits of funds in favor of banks or other depository institutions, solely to the extent incurred in
connection with the maintenance of such deposits and the use of Automated Clearing House transfers in connection therewith (including
in respect of ordinary course cash management activities), in each case, in the ordinary course of business,
(o) Liens
granted in the ordinary course of business on the unearned portion of insurance premiums securing the financing of insurance premiums
to the extent the financing is permitted under the definition of Permitted Indebtedness,
(p) Liens
in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation
of goods,
(q) Liens
solely on any cash earnest money deposits made by a Loan Party or any of its Subsidiaries in connection with any letter of intent or purchase
agreement with respect to a Permitted Acquisition,
(r) Liens
assumed by any Loan Party or its Subsidiaries in connection with a Permitted Acquisition that secure Acquired Indebtedness that is Permitted
Indebtedness so long as such Liens are limited to the assets financed thereby,
(s) Liens
over cash collateral or certificates of deposit, in each case in connection with the cash collateralization of letters of credit permitted
under clause (r) of the definition of Permitted Indebtedness, not in excess of 105% of the aggregate face amount of all such letters
of credit,
(t) Liens
securing the Indebtedness permitted under clause (t) of the definition of Permitted Indebtedness, and
(u) Liens
granted by a Subsidiary that is not a Loan Party securing an aggregate amount of Indebtedness (for all Subsidiaries that are not Loan
Parties, collectively) not to exceed $5,000,000, and which is permitted to be incurred by such Subsidiary under Section 6.1.
"Permitted Protest"
means the right of any Loan Party or any of its Subsidiaries to protest any Lien (other than any Lien that secures the Obligations), taxes
(other than payroll taxes or taxes that are the subject of a United States federal tax lien), or rental payment; provided, that
(a) a reserve with respect to such obligation is established on such Loan Party's or its Subsidiaries' books and records in such
amount as is required under GAAP, (b) any such protest is instituted promptly and prosecuted diligently by such Loan Party or its
Subsidiary, as applicable, in good faith, and (c) Agent is satisfied that, while any such protest is pending, there will be no impairment
of the enforceability, validity, or priority of any of Agent's Liens.
-51-
"Permitted
Purchase Money Indebtedness" means, as of any date of determination, Indebtedness (other than the Obligations, but including
Capitalized Lease Obligations), incurred after the Closing Date and at the time of, or within twenty (20) days after, the acquisition
of any fixed assets for the purpose of financing all or any part of the acquisition cost thereof, in an aggregate principal amount
outstanding at any one time not in excess of $5,000,000.
"Person" means
natural persons, corporations, limited liability companies, limited partnerships, general partnerships, limited liability partnerships,
joint ventures, trusts, land trusts, business trusts, or other organizations, irrespective of whether they are legal entities, and governments
and agencies and political subdivisions thereof.
"PIK
Election Deadline" has the meaning specified therefor in the definition of
Applicable Margin.
"PIK
Election Notice" means a written notice in the form of Exhibit P-2 to this Agreement.
"PIK
Interest" has the meaning specified therefor in the definition of Applicable
Margin.
“"Post-Amendment
No. 3 Field Examination”"
means a field examination conducted by Revolving Agent after the Amendment No. 3 Closing Date commencing no sooner than the date
that is 120 days after the Amendment No. 3 Closing Date (or such earlier date as may be agreed to in writing by Revolving Agent and
the Administrative Borrower).
"PPSA" means
the Personal Property Security Act (Ontario) and the Regulations thereunder, as from time to time in effect, provided, however,
if attachment, perfection or priority of Agent’s security interests in any Collateral are governed by the personal property security
laws of any jurisdiction other than Ontario, PPSA shall mean those personal property security laws as in effect from time to time in such
other jurisdiction (including, without limitation, the Civil Code of Québec) for the purposes of the provisions hereof relating
to such attachment, perfection or priority and for the definitions related to such provisions.
"Pricing
Grid Period" has the meaning set forth in the definition of Applicable Margin.
"Pro
Rata Commitment Reduction Amount" means, as of any date of determination, with respect to (a) any voluntary prepayment of
the Term Loan or (b) a mandatory prepayment of the Term Loan pursuant to Section 2.4(e)(iii), the amount equal to the
product of (i) the aggregate principal amount of such prepayment, multiplied by (ii) a fraction, the numerator of which is the
Maximum Revolver Amount as of such date and the denominator of which is the sum of (x) the Maximum Revolver Amount (without giving
effect to any reduction related to any Revolving Loans made in respect thereof), and (y) the aggregate outstanding principal amount
of the Term Loan, in each case as of such date.
-52-
"Pro Rata Share"
means, as of any date of determination:
(a) with
respect to a Lender's obligation to make all or a portion of the Revolving Loans, with respect to such Lender's right to receive payments
of interest, fees, and principal with respect to the Revolving Loans, and with respect to all other computations and other matters related
to the Revolver Commitments or the Revolving Loans, the percentage obtained by dividing (i) the Revolving Loan Exposure of such Lender,
by (ii) the aggregate Revolving Loan Exposure of all Lenders,
(b) with
respect to a Lender's obligation to make all or a portion of the Term Loan, with respect to such Lender's right to receive payments of
interest, fees, and principal with respect to the Term Loan, and with respect to all other computations and other matters related to the
Term Loan Commitments or the Term Loan, the percentage obtained by dividing (i) the Term Loan Exposure of such Lender, by (ii) the
aggregate Term Loan Exposure of all Lenders, and
(c) with
respect to all other matters and for all other matters as to a particular Lender (including the indemnification obligations arising under
Section 15.7 of this Agreement), the percentage obtained by dividing (i) the Revolving Loan Exposure and Term Loan Exposure
of such Lender, by (ii) the aggregate Revolving Loan Exposure and Term Loan Exposure of all Lenders, in any such case as the applicable
percentage may be adjusted by assignments permitted pursuant to Section 13.1.
"Projections"
means Comtech's forecasted (a) balance sheets, (b) profit and loss statements, and (c) cash flow statements, all prepared
on a basis consistent with Comtech's historical financial statements, together with appropriate supporting details and a statement of
underlying assumptions.
"Protective Advances"
has the meaning specified therefor in Section 2.3(d)(i) of this Agreement.
"Public Lender"
has the meaning specified therefor in Section 17.9(c) of this Agreement.
"Purchase
Agreement" has the meaning specified therefor in Amendment No. 4.
"Purchase Price"
means, with respect to any Acquisition, any Specified Permitted Disposition or the Specified Permitted Individual Disposition, an amount
equal to the aggregate consideration, whether cash, property or securities (including the fair market value of any Equity Interests of
Comtech issued in connection with such Acquisition and including the maximum amount of Earn-Outs), paid or delivered or received by a
Loan Party or one of its Subsidiaries in connection with such Acquisition, such Specified Permitted Disposition or the Specified Permitted
Individual Disposition (whether paid at the closing thereof or payable thereafter and whether fixed or contingent), but excluding therefrom
(a) any cash of the seller and its Affiliates used to fund any portion of such consideration, and (b) any cash or Cash Equivalents
acquired or sold in connection with such Acquisition, such Specified Permitted Disposition or the Specified Permitted Individual Disposition.
-53-
"QFC" has the
meaning assigned to the term "qualified financial contract" in, and shall be interpreted in accordance with, 12 U.S.C. §
5390(c)(8)(D).
"QFC Credit Support"
has the meaning specified therefor in Section 17.16 of this Agreement.
"Qualified Cash"
means, as of any date of determination, the amount of unrestricted cash and Cash Equivalents of the Loan Parties that is in Deposit Accounts
or in Securities Accounts, or any combination thereof, and (a) with respect to not more than $7,500,000 of Qualified Cash in the
aggregate at any time is held in a Deposit Account maintained by a branch office of the applicable bank located in Canada or the United
Kingdom and with respect to which Agent has a perfected Lien under applicable Law or (b) which such Deposit Account or Securities
Account is the subject of a Control Agreement and is maintained by a branch office of the bank or securities intermediary located within
the United States; provided that, notwithstanding the foregoing, with respect to any such Deposit Account or Securities Account
that is maintained by a branch office of the bank or securities intermediary located within the United States, prior to the date that
is 60 days (or, if consented to in writing by Agent and Revolving Agent (such consent not be unreasonably withheld or delayed), 90 days)
after the Closing Date (or such longer period agreed to in writing by Agent in its sole discretion), such Deposit Accounts and/or Securities
Accounts need not be required to be subject to Control Agreements.
"Qualified Equity Interests"
means and refers to any Equity Interests issued by Comtech (and not by one or more of its Subsidiaries) that is not a Disqualified Equity
Interest.
"Real Property"
means any estates or interests (other than leasehold interests) in real property now owned or hereafter acquired by any Loan Party or
one of its Subsidiaries and the improvements thereto.
"Real Property Collateral"
means (a) the Real Property identified on Schedule R-1 to this Agreement, and (b) any Real Property hereafter acquired
by any Loan Party or one of its Subsidiaries with a fair market value in excess of $1,000,000.
"Recipient"
means any recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder or under any other Loan
Document.
"Record" means
information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable
form.
"Reference Period"
has the meaning set forth in the definition of EBITDA.
"Refinancing Indebtedness"
means refinancings, renewals, or extensions of Indebtedness so long as:
(a) such
refinancings, renewals, or extensions do not result in an increase in the principal amount of the Indebtedness so refinanced, renewed,
or extended, other than by the amount of premiums paid thereon and the fees and expenses incurred in connection therewith and by the amount
of unfunded commitments with respect thereto,
-54-
(b) such
refinancings, renewals, or extensions do not result in a shortening of the final stated maturity or the average weighted maturity (measured
as of the refinancing, renewal, or extension) of the Indebtedness so refinanced, renewed, or extended, nor are they on terms or conditions
that, taken as a whole, are or could reasonably be expected to be materially adverse to the interests of the Lenders,
(c) if
the Indebtedness that is refinanced, renewed, or extended was subordinated in right of payment to the Obligations, then the terms and
conditions of the refinancing, renewal, or extension must include subordination terms and conditions that are at least as favorable to
the Lender Group as those that were applicable to the refinanced, renewed, or extended Indebtedness,
(d) the
Indebtedness that is refinanced, renewed, or extended is not recourse to any Person that is liable on account of the Obligations other
than those Persons which were obligated with respect to the Indebtedness that was refinanced, renewed, or extended,
(e) if
the Indebtedness that is refinanced, renewed or extended was unsecured, such refinancing, renewal or extension shall be unsecured, and
(f) if
the Indebtedness that is refinanced, renewed, or extended was secured (i) such refinancing, renewal, or extension shall be secured
by substantially the same or less collateral as secured such refinanced, renewed or extended Indebtedness on terms no less favorable to
Agent or the Lender Group and (ii) the Liens securing such refinancing, renewal or extension shall not have a priority more senior
than the Liens securing such Indebtedness that is refinanced, renewed or extended.
"Register"
has the meaning set forth in Section 13.1(h) of this Agreement.
"Related Fund"
means any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions
of credit in the ordinary course and that is administered, advised or managed by (a) a Lender, (b) an Affiliate of a Lender,
or (c) an entity or an Affiliate of an entity that administers, advises or manages a Lender.
"Releases"
has the meaning specified therefor in Section 4.11 of this Agreement.
"Relevant Governmental
Body" means the Board of Governors or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by
the Board of Governors or the Federal Reserve Bank of New York, or any successor thereto.
"Remedial Action"
means all actions taken to (a) clean up, remove, remediate, contain, treat, monitor, assess, evaluate, or in any way address Hazardous
Materials in the indoor or outdoor environment, (b) prevent or minimize a release or threatened release of Hazardous Materials so
they do not migrate or endanger or threaten to endanger public health or welfare or the indoor or outdoor environment, (c) restore
or reclaim natural resources or the environment, (d) perform any pre-remedial studies, investigations, or post-remedial operation
and maintenance activities, or (e) conduct any other actions with respect to Hazardous Materials required by Environmental Laws;
provided, that Remedial Action shall not include any actions undertaken in the ordinary course of business to comply with Environmental
Laws in the course of daily operations.
-55-
"Replacement Lender"
has the meaning specified therefor in Section 2.13(b) of this Agreement.
"Required Lenders"
means, at any time, Lenders having or holding more than 50% of the sum of (a) the aggregate Revolving Loan Exposure of all Lenders,
plus (b) the aggregate Term Loan Exposure of all Lenders; provided, that the Revolving Loan Exposure and Term
Loan Exposure of any Defaulting Lender shall be disregarded in the determination of the Required Lenders.
"Required Revolving
Lenders" means, at any time, Lenders having or holding more than 50% of the aggregate Revolving Loan Exposure of all Lenders;
provided, that the Revolving Loan Exposure of any Defaulting Lender shall be disregarded in the determination of the Required Revolving
Lenders
"Required Term Loan
Lenders" means, at any time, Lenders having or holding more than 50% of the aggregate Term Loan Exposure of all Lenders; provided,
that the Term Loan Exposure of any Defaulting Lender shall be disregarded in the determination of the Required Term Loan Lenders.
"Reserves"
means, as of any date of determination, such amount as the Revolving Agent may from time to time establish in its Permitted Discretion.
The amount of any Reserve established by the Revolving Agent shall have a reasonable relationship, as determined by the Revolving Agent
in its Permitted Discretion, to the event, condition, other circumstance, or fact that is the basis for such Reserve and shall not be
duplicative of any other Reserve established and then maintained or of the Bank Product Reserve Amount.
"Resolution Authority"
means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
"Restricted Payment"
means (a) any declaration or payment of any dividend (fixed or otherwise) or the making of any other payment or distribution, directly
or indirectly, on account of Equity Interests (including, without limitation, common or preferred Equity Interests) issued by Comtech
or any of its Subsidiaries (including any payment in connection with any merger, amalgamation or consolidation involving Comtech or any
of its Subsidiaries) or to the direct or indirect holders of Equity Interests (including, without limitation, common or preferred Equity
Interests) issued by Comtech or any of its Subsidiaries in their capacity as such (other than dividends or distributions payable in Qualified
Equity Interests issued by Comtech or any of its Subsidiaries) or (b) any purchase, redemption, making of any sinking fund or similar
payment, or other acquisition or retirement for value (including in connection with any merger, amalgamation or consolidation involving
Comtech or any of its Subsidiaries) of any Equity Interests (including, without limitation, common or preferred Equity Interests) issued
by Comtech or any of its Subsidiaries, (c) any making of any payment to retire, or to obtain the surrender of, any outstanding warrants,
options, or other rights to acquire Equity Interests (including, without limitation, common or preferred Equity Interests) of Comtech
or any of its Subsidiaries now or hereafter outstanding, or (d) the making of any management, advisory or consulting fee to any Affiliate
of any Loan Party.
-56-
"Revolver Commitment"
means, with respect to each Revolving Lender, its Revolver Commitment, and, with respect to all Revolving Lenders, their Revolver Commitments,
in each case as such Dollar amounts are set forth beside such Revolving Lender's name under the applicable heading on Schedule C-1
to this Agreement or in the Assignment and Acceptance pursuant to which such Revolving Lender became a Revolving Lender under this Agreement,
as such amounts may be reduced or increased from time to time pursuant to assignments made in accordance with the provisions of Section 13.1
of this Agreement, and as such amounts may be decreased by the amount of reductions in the Revolver Commitments made in accordance with
Section 2.4(c) hereof; provided that, the Revolver Commitment shall be subject to Section 2.3(c) and
the other terms and provisions of this Agreement.
"Revolver Fee Letter"
means that certain Amended and Restated Revolver Fee Letter, dated
as of even date with this Agreementthe
Amendment No. 4 Closing Date, among Borrowers and Revolving Agent, in form and substance reasonably satisfactory to Revolving
Agent.
"Revolver Usage"
means, as of any date of determination, the outstanding principal amount of Revolving Loans.
"Revolving Agent"
has the meaning specified therefor in the preamble to this Agreement.
"Revolving Agent Assignee"
has the meaning specified therefor in Section 17.18(d) of this Agreement.
"Revolving Agent's Account"
means the Deposit Account of Revolving Agent identified on Schedule A-2 to this Agreement (or such other Deposit Account of Revolving
Agent that has been designated as such, in writing, by Revolving Agent to Borrowers and the Lenders).
"Revolving Lender"
means a Lender that has Revolving Loan Exposure.
"Revolving Loan Base
Rate Margin" has the meaning set forth in the definition of Applicable Margin.
"Revolving Loan Exposure"
means, with respect to any Revolving Lender, as of any date of determination (a) prior to the termination of the Revolver Commitments,
the amount of such Lender's Revolver Commitment, and (b) after the termination of the Revolver Commitments, the aggregate outstanding
principal amount of the Revolving Loans of such Lender.
"Revolving Loan SOFR
Margin" has the meaning set forth in the definition of Applicable Margin.
-57-
"Revolving Loans"
has the meaning specified therefor in Section 2.1(a) of this Agreement.
"Sanctioned Entity"
means (a) a country or territory or a government of a country or territory, (b) an agency of the government of a country or
territory, (c) an organization directly or indirectly controlled by a country or territory or its government, or (d) a Person
resident in or determined to be resident in a country or territory, in each case of clauses (a) through (d) that is a target
of Sanctions, including a target of any country sanctions program administered and enforced by OFAC.
"Sanctioned Person"
means, at any time (a) any Person named on the list of Specially Designated Nationals and Blocked Persons maintained by OFAC, OFAC's
consolidated Non-SDN list, on any list of the federal government of Canada or under the Canadian AML Laws, the Special Economic Measures
Act (Canada) or the Freezing Assets of Corrupt Foreign Officials Act (Canada) as a “designated person”, or “terrorist
group" or any other Sanctions-related list maintained by any Governmental Authority, (b) a Person or legal entity that is a
target of Sanctions, (c) any Person operating, organized or resident in a Sanctioned Entity, or (d) any Person directly or indirectly
owned or controlled (individually or in the aggregate) by or acting on behalf of any such Person or Persons described in clauses (a) through
(c) above.
"Sanctions"
means individually and collectively, respectively, any and all economic sanctions, trade sanctions, financial sanctions, sectoral sanctions,
secondary sanctions, trade embargoes anti-terrorism laws and other sanctions laws, regulations or embargoes, including those imposed,
administered or enforced from time to time by: (a) the United States of America, including those administered by OFAC, the U.S. Department
of State, the U.S. Department of Commerce, or through any existing or future executive order, (b) the United Nations Security Council,
(c) the European Union or any European Union member state, (d) His Majesty's Treasury of the United Kingdom, (e) the Canadian
government, or (f) any other Governmental Authority with jurisdiction over any member of Lender Group or any Loan Party or any of
their respective Subsidiaries or Affiliates.
"S&P" has
the meaning specified therefor in the definition of Cash Equivalents.
"SEC" means
the United States Securities and Exchange Commission and any successor thereto.
"Second Excess Cash
Flow Period" means the period commencing on February 1, 2025 and ending on July 31, 2025.
"Securities Account"
means a securities account (as that term is defined in the Code or the PPSA, as applicable).
"Securities Act"
means the Securities Act of 1933, as amended from time to time, and any successor statute.
"Settlement"
has the meaning specified therefor in Section 2.3(e)(i) of this Agreement.
-58-
"Settlement Date"
has the meaning specified therefor in Section 2.3(e)(i) of this Agreement.
"SOFR" means
a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.
"SOFR Administrator"
means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).
"SOFR Deadline"
has the meaning specified therefor in Section 2.12(b)(i) of this Agreement.
"SOFR Loan"
means each portion of a Loan that bears interest at a rate determined by reference to Term SOFR (other than pursuant to clause (c) of
the definition of "Base Rate").
"SOFR Margin"
means the Revolving Loan SOFR Margin or the Term Loan SOFR Margin, as applicable.
"SOFR Notice"
means a written notice in the form of Exhibit L-1 to this Agreement.
"SOFR Option"
has the meaning specified therefor in Section 2.12(a) of this Agreement.
"Solvent" means,
with respect to any Person as of any date of determination, that (a) at fair valuations, the sum of such Person's debts (including
contingent liabilities) is less than all of such Person's assets, (b) such Person is not engaged or about to engage in a business
or transaction for which the remaining assets of such Person are unreasonably small in relation to the business or transaction or for
which the property remaining with such Person is an unreasonably small capital, (c) such Person has not incurred and does not intend
to incur, or reasonably believe that it will incur, debts beyond its ability to pay such debts as they become due (whether at maturity
or otherwise), (d) such Person is "solvent" or not "insolvent", as applicable within the meaning given those
terms and similar terms under applicable laws relating to fraudulent transfers and conveyances, and (e) with respect to any Person
incorporated in England and Wales, (i) it is not unable and does not admit its inability to pay its debts as they fall due, (ii) it
is not deemed to, or is not declared to, be unable to pay its debts under applicable law, (iii) it has not suspended or threatened
to suspend making payments on any of it debts or (iv) by reason of actual or anticipated financial difficulties, it has not commenced
negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness. For purposes of this definition, the
amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing
at such time, represents the amount that can reasonably be expected to become an actual or matured liability (irrespective of whether
such contingent liabilities meet the criteria for accrual under Statement of Financial Accounting Standard No. 5).
"Specified
B-3 Preferred Equity COD" has the meaning set forth in the definition
of Specified Preferred Equity Documents.
"Specified
B-4 Preferred Equity COD" has the meaning set forth in the definition
of Specified Preferred Equity Documents.
-59-
"Specified Financial
Covenants" has the meaning specified therefor in Section 9.3(a) of this Agreement.
"Specified Financial
Quarter" has the meaning specified therefor in Section 9.3(a) of this Agreement.
"Specified Loan Party"
means each Loan Party other than a Canadian Loan Party or a US Loan Party.
"Specified Permitted
Dispositions" means sales or other dispositions that the Administrative Borrower has designated as such in writing to Agent and
Revolving Agent and Agent and Revolving Agent have approved of such designation in writing.
"Specified Permitted
Individual Disposition" means the sale or other disposition that the Administrative Borrower has designated as such in writing
to Agent and Revolving Agent and Agent and Revolving Agent have approved of such designation in writing.
"Specified
Permitted Individual Disposition Prepayment Election" has the
meaning specified therefor in the definition of "Net Cash Proceeds".
"Specified
Permitted Individual Disposition Termination" has the meaning
specified therefor in the definition of "Net Cash Proceeds".
"Specified Preferred
Agent" means U.S. Bank Trust Company, National Association, in its capacity as administrative agent for the Specified Preferred
Lenders, or any other Person appointed by the holders of the Specified Preferred Subordinated Debt as administrative agent for purposes
of the Subordinated Debt Documents.
"Specified
Preferred Equity" means the(a) prior
to the date of the "Closing" (as defined in the Exchange Agreement), the shares of Series B-3 Convertible Preferred
Stock of Comtech, par value $0.10 per share, authorized by the Board of Directors of Comtech and initially issued to the Permitted Holders
pursuant to the Certificate of Incorporation, the Bylaws and applicable law, including any additional or exchanged shares issued after
the Amendment No. 2 Closing Date that are on the same terms and conditions as the Series B-3 Convertible Preferred Stock of
Comtech, par value $0.10 per share, in effect on the Amendment No. 2 Closing Date (or other terms and conditions if the effect
thereof could not reasonably be expected to be adverse in any material respect to the interests of the Lenders) and which do not otherwise
breach the terms of the Loan Documents.,
and (b) on and after the date of the "Closing" (as defined in the Exchange Agreement), the shares of Series B-4 Convertible
Preferred Stock of Comtech, par value $0.10 per share, authorized by the Board of Directors of Comtech and initially issued to the Permitted
Holders pursuant to the Certificate of Incorporation, the Bylaws and applicable law, including any additional or exchanged shares issued
after the Amendment No. 4 Closing Date that are on the same terms and conditions as the Series B-4 Convertible Preferred Stock
of Comtech, par value $0.10 per share, in effect on the "Closing" (as defined in the Exchange Agreement) (or other terms and
conditions if the effect thereof could not reasonably be expected to be adverse in any material respect to the interests of the Lenders)
and which do not otherwise breach the terms of the Loan Documents.
-60-
"Specified Preferred
Equity COD" has the meaning set forth in the definition ofmeans
the Specified B-3 Preferred Equity DocumentsCOD
or the Specified B-4 Preferred Equity COD, as applicable.
"Specified Preferred
Equity Documents" means (i) prior to the date of the "Closing"
(as defined in the Exchange Agreement), that (a) certain Certificate of Designations with respect to the Series B-3 Convertible
Preferred Stock, dated as of the Amendment No. 2 Closing Date (as amended, restated, amended and restated, supplemented or otherwise
modified from time to time in accordance with the terms therein and herein) (,
the "Specified B-3 Preferred Equity COD"), and (b) that
certain Subscription and Exchange Agreement, dated as of the Amendment No. 2 Closing Date, by and among Comtech and the Investors
listed on Exhibit B attached thereto.,
and (ii) on and after the date of the "Closing" (as defined in the Exchange Agreement), that (a) certain Certificate
of Designations with respect to the Series B-4
Convertible Preferred Stock, dated as of the Amendment No. 4
Closing Date (as amended, restated, amended and restated, supplemented or otherwise modified from time to time in accordance with the
terms therein and herein, the "Specified B-4 Preferred Equity COD"), and (b) the Exchange Agreement.
"Specified Preferred
Lenders" means the lenders from time to time party to the Specified Preferred Subordinated Credit Agreement.
"Specified Preferred
Subordinated Credit Agreement" means that certain Subordinated Credit Agreement, dated as of the Amendment No. 1 Closing
Date, among Specified Preferred Agent, Specified Preferred Lenders, Comtech and the other Loan Parties party thereto, as the same may
be amended, restated, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms thereof
and hereof and the terms of the Specified Preferred Subordination Agreement, including as amended by (i) that
certain Waiver and Amendment No. 1 to Subordinated Credit Agreement, dated as of the Amendment No. 2 Closing Date and,
(ii) that certain Amendment No. 2 to Subordinated Credit Agreement, dated as of the Amendment No. 3 Closing Date,
and (iii) that certain Amendment No. 3 and Consent to Subordinated Credit Agreement, dated as of the Amendment No. 4 Closing
Date.
"Specified Preferred
Subordinated Debt" means unsecured Indebtedness owing by Comtech and certain of the other Loan Parties to Specified Preferred
Agent and the Specified Preferred Lenders pursuant to the Specified Preferred Subordinated Debt Documents.
"Specified Preferred
Subordinated Debt Documents" means the Specified Preferred Subordinated Credit Agreement and any other documents entered in connection
therewith, in each case, as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time
in accordance with the terms thereof and hereof and the terms of the Specified Preferred Subordination Agreement.
"Specified Preferred
Subordination Agreement" means that certain Subordination Agreement, dated as of the Amendment No. 1 Closing Date, among
Agent, the Specified Preferred Lenders and the Loan Parties, as the same may be amended, restated, amended and restated, supplemented
or otherwise modified from time to time in accordance with the terms thereof.
-61-
"Subsidiary"
of a Person means a corporation, partnership, limited liability company, or other entity in which that Person directly or indirectly owns
or controls the Equity Interests having ordinary voting power to elect a majority of the Board of Directors of such corporation, partnership,
limited liability company, or other entity.
"Supported QFC"
has the meaning specified therefor in Section 17.16 of this Agreement.
"Swap Obligation"
means, with respect to any Loan Party, any obligation to pay or perform under any agreement, contract or transaction that constitutes
a "swap" within the meaning of section 1a(47) of the Commodity Exchange Act.
"Tax Act" means
the Income Tax Act (Canada) and the regulations promulgated thereunder.
"Tax Indemnitee"
has the meaning specified therefor in Section 16.1 of this Agreement.
"Tax Lender"
has the meaning specified therefor in Section 14.2(a) of this Agreement.
"Taxes" means
any taxes, levies, imposts, duties, deductions, withholdings (including backup withholdings), fees, assessments or other charges now or
hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein, and all interest, additions
to tax, penalties or similar liabilities with respect thereto.
"TCW" means
TCW Asset Management Company LLC.
"Term Loan"
has the meaning specified therefor in Section 2.2(a).
"Term Loan Amount"
means $162,000,000.
"Term Loan Base Rate
Margin" has the meaning set forth in the definition of Applicable Margin.
"Term
Loan Commitment" means, with respect to each Lender, its Term Loan Commitment, and, with respect to all Lenders, their
Term Loan Commitments, in each case as such Dollar amounts are set forth beside such Lender's name under the applicable heading on Schedule C-1
to this Agreement or in the Assignment and Acceptance pursuant to which such Lender became a Term Loan Lender under this Agreement, as
such amounts may be reduced or increased from time to time pursuant to assignments made in accordance with the provisions of Section 13.1
of this Agreement.
"Term Loan Exposure"
means, with respect to any Term Loan Lender, as of any date of determination (a) prior to the funding of the Term Loan, the amount
of such Lender's Commitment, and (b) after the funding of the Term Loan, the outstanding principal amount of the Term Loan held by
such Lender.
-62-
"Term Loan Lender"
means a Lender that has a Term Loan Commitment or that .has a portion of the Term Loan.
"Term Loan Obligations"
means all Obligations other than (a) with respect to any Revolving Loan (or any portion thereof) and (b) Bank Product Obligations.
"Term
Loan Pricing Reset Trigger Date" means the first date after January 31, 2027 that Borrowers have delivered to Agent financial
statements and related Compliance Certificate in accordance with Section 5.01,
demonstrating Borrowers' compliance with the financial covenants set
forth in Section 7 for the most recently ended fiscal quarter.
"Term Loan SOFR Margin"
has the meaning set forth in the definition of Applicable Margin.
"Term SOFR"
means,
(a) for
any calculation with respect to a SOFR Loan, the Term SOFR Reference Rate for a tenor comparable to the applicable Interest Period on
the day (such day, the "Periodic Term SOFR Determination Day") that is two (2) U.S. Government Securities Business
Days prior to the first day of such Interest Period, as such rate is published by the Term SOFR Administrator; provided, however,
that if as of 5:00 p.m. (New York City time) on any Periodic Term SOFR Determination Day the Term SOFR Reference Rate for the applicable
tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate
has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the
first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term
SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government
Securities Business Days prior to such Periodic Term SOFR Determination Day, and
(b) for
any calculation with respect to a Base Rate Loan on any day, the Term SOFR Reference Rate for a tenor of one month on the day (such day,
the "Base Rate Term SOFR Determination Day") that is two (2) U.S. Government Securities Business Days prior to such
day, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York
City time) on any Base Rate Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by
the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term
SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government
Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as
such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days
prior to such Base Rate Term SOFR Determination Day;
provided
that if Term SOFR as so determined shall ever be less than the Floor, then Term SOFR shall be deemed to be the Floor.
-63-
"Term SOFR Administrator"
means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by Agent
in its reasonable discretion).
"Term SOFR Reference
Rate" means the forward-looking term rate based on SOFR.
"Trademark Security
Agreement" has the meaning specified therefor in the Guaranty and Security Agreement.
"Transformation Plan"
means the Cost-Savings and Profit Improvement Initiatives described by Comtech in its filings with the SEC in its most recently filed
Form 10-K annual report, Form 10-Q quarterly report or Form 8-K current report, as
amended from time to time in accordance with Section 5.23.
"TTM EBITDA"
means, as of any date of determination, EBITDA of Comtech, determined on a consolidated basis, for the 12 month period most recently ended.
"UK" and "United
Kingdom" mean the United Kingdom of Great Britain and Northern Ireland.
"UK Debenture"
means an English law debenture executed by a Loan Party in favor of the Agent.
"UK Financial Institution"
means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended form time to time) promulgated by the United Kingdom
Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated
by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates
of such credit institutions or investment firms.
"UK Guarantee Limitations"
means the UK Loan Party limitations set out in Section 17.19 of this Agreement.
"UK
Loan Party" means any Loan Party that is incorporated in England and Wales; provided that, for the avoidance of doubt, no Subsidiary
of Comtech organized under the laws of England & Wales shall be deemed to be a Loan Party until such Subsidiary shall have entered
into a UK Debenture, together with such other UK Security Documents, as well as appropriate financing statements, all in form and
substance reasonably satisfactory to Agent (including being sufficient to grant Agent a first priority Lien (subject to Permitted Liens)
in and to the assets of such Subsidiary).
"UK Resolution Authority"
means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
"UK Share Charge"
means an English law charge over shares, executed by any holding company of a UK Loan Party (except where those shares are charged pursuant
to the UK Debenture) in favor of the Agent.
-64-
"UK Security Documents"
means the UK Debenture, the UK Share Charge and any other Loan Document that purports to create a Lien which is governed by English law.
"Unadjusted Benchmark
Replacement" means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
"Unfinanced Capital
Expenditures" means Capital Expenditures (a) not financed with the proceeds of any incurrence of Indebtedness (other than
the incurrence of any Revolving Loans), the proceeds of any sale or issuance of Equity Interests or equity contributions, the proceeds
of any asset sale (other than the sale of Inventory in the ordinary course of business) or any insurance proceeds, and (b) that are
not reimbursed by a third person (excluding any Loan Party or any of its Affiliates) in the period such expenditures are made pursuant
to a written agreement.
"United States"
means the United States of America.
"Unused Line Fee"
has the meaning specified therefor in Section 2.10(b) of this Agreement.
"U.S. Government Securities
Business Day" means any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which the Securities Industry
and Financial Markets Association, or any successor thereto, recommends that the fixed income departments of its members be closed for
the entire day for purposes of trading in United States government securities; provided, that for purposes of notice requirements
in Sections 2.3(a), 2.3(c) and 2.12(b), in each case, such day is also a Business Day.
"U.S. Person"
means a "United States person" within the meaning of Section 7701(a)(30) of the IRC.
"U.S. Special Resolution
Regimes" has the meaning specified therefor in Section 17.16 of this Agreement.
"US Loan Party"
means any Loan Party that is organized under the laws of the United States, any state thereof or the District of Columbia.
"Voidable Transfer"
has the meaning specified therefor in Section 17.8 of this Agreement.
"Wind-Up" means
the ceasing of operations, the completion of all expenses and the liquidation of all or substantially all of the assets of any Person
or any division or business line thereof to the reasonable satisfaction of Agent.
"Wingspire"
means Wingspire Capital LLC.
"Withdrawal Liability"
means liability with respect to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
-65-
"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.
1.2. Accounting
Terms. Except as otherwise expressly provided herein, all accounting and financial terms not specifically defined herein shall
be construed in accordance with GAAP, as in effect from time to time; provided, that if Administrative Borrower notifies Agent
and Revolving Agent that Borrowers request an amendment to any provision hereof to eliminate the effect of any Accounting Change occurring
after the Closing Date or in the application thereof on the operation of such provision (or if Agent notifies Administrative Borrower
that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given
before or after such Accounting Change or in the application thereof, then Agent, Revolving Agent, and Borrowers agree that they will
negotiate in good faith amendments to the provisions of this Agreement that are directly affected by such Accounting Change with the intent
of having the respective positions of the Lenders and Borrowers after such Accounting Change conform as nearly as possible to their respective
positions immediately before such Accounting Change took effect and, until any such amendments have been agreed upon and agreed to by
the Required Lenders, the provisions in this Agreement shall be calculated as if no such Accounting Change had occurred. When used herein,
the term "financial statements" shall include the notes and schedules thereto. Whenever the term "Comtech" is used
in respect of a financial covenant or a related definition, it shall be understood to mean the Loan Parties and their Subsidiaries on
a consolidated basis, unless the context clearly requires otherwise. Notwithstanding anything to the contrary contained herein, (a) all
financial statements delivered hereunder shall be prepared, and all financial covenants contained herein shall be calculated, without
giving effect to (i) any election under the Statement of Financial Accounting Standards Board's Accounting Standards Codification
Topic 825 (or any similar accounting principle) permitting a Person to value its financial liabilities or Indebtedness at the fair value
thereof and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Financial Accounting Standards Board's
Accounting Standards Codification 470-20 (or any similar accounting principle having a similar result or effect) to value any such Indebtedness
in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal
amount thereof, (b) notwithstanding any changes in GAAP after the Closing Date, any lease of the Borrower or its Subsidiaries or
of a special purpose or other entity not consolidated with the Borrower and its Subsidiaries at the time of its incurrence of such lease,
that would be characterized as an operating lease under GAAP in effect on the Closing Date (whether such lease is entered into before
or after the Closing Date) shall not constitute Indebtedness or a Capitalized Lease Obligation of the Borrower or any Subsidiary under
this Agreement or any other Loan Document, including negative covenants, financial covenants and component definitions, as a result of
such changes in GAAP after the Closing Date, and (c) the term "unqualified opinion" as used herein to refer to opinions
or reports provided by accountants shall mean an opinion or report that is (i) unqualified, and (ii) does not include any explanation,
supplemental comment, or other comment concerning the ability of the applicable Person to continue as a going concern or concerning the
scope of the audit.
-66-
1.3. Code;
PPSA. Any terms used in this Agreement that are defined in (a) the Code shall be construed and defined as set forth in the
Code unless otherwise defined herein; provided, that to the extent that the Code is used to define any term herein and such term
is defined differently in different Articles of the Code, the definition of such term contained in Article 9 of the Code shall govern,
and (b) the PPSA shall be construed and defined as set forth in the PPSA. Notwithstanding the foregoing, and where the context so
requires, (i) any term defined in this Agreement by reference to the "Code" or the "Uniform Commercial Code"
shall also have any extended, alternative or analogous meaning given to such term in applicable Canadian personal property security and
other laws (including, without limitation, the Personal Property Security Act of each applicable province of Canada, the Bills
of Exchange Act (Canada) and the Depository Bills and Notes Act (Canada)), in all cases for the extension, preservation or
betterment of the security and rights of the Collateral, (ii) all references in this Agreement to “Article 8” shall
be deemed to refer also to applicable Canadian securities transfer laws (including, without limitation, the Securities Transfer Act
of each applicable province of Canada) (the “STA”), (iii) all references in this Agreement to a financing statement,
continuation statement, amendment or termination statement shall be deemed to refer also to the analogous documents used under applicable
Canadian personal property security laws, (iv) all references to the United States of America, or to any subdivision, department,
agency or instrumentality thereof shall be deemed to refer also to Canada, or to any subdivision, department, agency or instrumentality
thereof, and (v) all references to federal or state securities laws of the United States shall be deemed to refer also to analogous
federal and provincial or territorial securities laws in Canada.
1.4. Construction.
Unless the context of this Agreement or any other Loan Document clearly requires otherwise, references to the plural include the singular,
references to the singular include the plural, the terms "includes" and "including" are not limiting, and the term
"or" has, except where otherwise indicated, the inclusive meaning represented by the phrase "and/or." The words "hereof,"
"herein," "hereby," "hereunder," and similar terms in this Agreement or any other Loan Document refer to
this Agreement or such other Loan Document, as the case may be, as a whole and not to any particular provision of this Agreement or such
other Loan Document, as the case may be. Section, subsection, clause, schedule, and exhibit references herein are to this Agreement unless
otherwise specified. Any reference in this Agreement or in any other Loan Document to any agreement, instrument, or document shall include
all alterations, amendments, changes, extensions, modifications, renewals, replacements, substitutions, joinders, and supplements, thereto
and thereof, as applicable (subject to any restrictions on such alterations, amendments, changes, extensions, modifications, renewals,
replacements, substitutions, joinders, and supplements set forth herein). The words "asset" and "property" shall be
construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties. Any reference
herein or in any other Loan Document to the satisfaction, repayment, or payment in full of the Obligations shall mean (a) the payment
or repayment in full in immediately available funds of (i) the principal amount of, and interest accrued and unpaid with respect
to, all outstanding Loans, together with the payment of any premium applicable to the repayment of the Loans, (ii) all Lender Group
Expenses that have accrued and are unpaid regardless of whether demand has been made therefor, and (iii) all fees or charges that
have accrued hereunder or under any other Loan Document and are unpaid, (b) the receipt by Agent or Revolving Agent, as applicable,
of cash collateral in order to secure any other contingent Obligations for which a claim or demand for payment has been made on or prior
to such time or in respect of matters or circumstances known to Agent or Revolving Agent, as applicable, or a Lender at such time that
are reasonably expected to result in any loss, cost, damage, or expense (including attorneys' fees and legal expenses), such cash collateral
to be in such amount as Agent or Revolving Agent, as applicable, reasonably determines is appropriate to secure such contingent Obligations,
(c) the payment or repayment in full in immediately available funds of all other outstanding Obligations (including the payment of
any termination amount then applicable (or which would or could become applicable as a result of the repayment of the other Obligations)
under Hedge Agreements provided by Hedge Providers) other than (i) unasserted contingent indemnification Obligations, (ii) any
Bank Product Obligations (other than Hedge Obligations) that, at such time, are allowed by the applicable Bank Product Provider to remain
outstanding without being required to be repaid or cash collateralized, and (iii) any Hedge Obligations that, at such time, are allowed
by the applicable Hedge Provider to remain outstanding without being required to be repaid, and (d) the termination of all of the
Commitments of the Lenders. Any reference herein to any Person shall be construed to include such Person's successors and assigns. Any
requirement of a writing contained herein or in any other Loan Document shall be satisfied by the transmission of a Record.
-67-
1.5. Time
References. Unless the context of this Agreement or any other Loan Document clearly requires otherwise, all references to time
of day refer to Eastern standard time or Eastern daylight saving time, as in effect in New York, New York on such day. For purposes of
the computation of a period of time from a specified date to a later specified date, unless otherwise expressly provided, the word "from"
means "from and including" and the words "to" and "until" each means "to and including"; provided,
that with respect to a computation of fees or interest payable to Agent or any Lender, such period shall in any event consist of at least
one full day. When the payment of any obligation or the performance of any covenant, duty or obligation is stated to be due or performance
required on (or before) a day which is not a Business Day, the date of such payment or performance shall extend to the immediately succeeding
Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that the foregoing
sentence shall not apply to any payment or performance that expressly provides for otherwise.
1.6. Schedules
and Exhibits. All of the schedules and exhibits attached to this Agreement shall be deemed incorporated herein by reference.
1.7. Divisions.
For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware law (or any comparable event
under a different jurisdiction's laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right,
obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent
Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized on the first date
of its existence by the holders of its Equity Interests at such time.
-68-
1.8. Rates.
Agent does not warrant or accept any 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 the Term SOFR Reference Rate, Term SOFR or any other Benchmark,
any component definition thereof or rates referred to in the definition thereof, or with respect to any alternative, successor or replacement
rate thereto (including any then-current Benchmark or any Benchmark Replacement), including whether the composition or characteristics
of any such alternative, successor or replacement rate (including any Benchmark Replacement), as it may or may not be adjusted pursuant
to Section 2.12(d)(iii), will be similar to, or produce the same value or economic equivalence of, or have the same volume
or liquidity as, the Term SOFR Reference Rate, Term SOFR or any other Benchmark, prior to its discontinuance or unavailability, or (b) the
effect, implementation or composition of any Conforming Changes. Agent and its affiliates or other related entities may engage in transactions
that affect the calculation of the Term SOFR Reference Rate, Term SOFR, any alternative, successor or replacement rate (including any
Benchmark Replacement) or any relevant adjustments thereto and such transactions may be adverse to a Borrower. Agent may select information
sources or services in its reasonable discretion to ascertain the Term SOFR Reference Rate, Term SOFR or any other Benchmark, any component
definition thereof or rates referred to in the definition thereof, in each case pursuant to the terms of this Agreement, and shall have
no liability to any Borrower, any Lender or any other person or entity for damages of any kind, including direct or indirect, special,
punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or
in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.
1.9. Quebec
Interpretation. For purposes of interpretation of this Agreement and for purposes of any Collateral located in the Province of
Québec or charged by any deed of hypothec (or any other Loan Document) and for all other purposes pursuant to which the interpretation
or construction of a Loan Document may be subject to the laws of the Province of Québec or a court or tribunal exercising jurisdiction
in the Province of Quebec, (a) "personal property" shall be deemed to include "movable property", (b) "real
property" shall be deemed to include "immovable property", (c) "tangible property" shall be deemed to include
"corporeal property", (d) "intangible property" shall be deemed to include "incorporeal property",
(e) "security interest", "mortgage" and "lien" shall be deemed to include a "hypothec", "prior
claim" and a "resolutory clause", (f) all references to filing, registering or recording under the UCC or PPSA shall
be deemed to include publication by registration under the Civil Code of Quebec, (g) all references to "perfection" of
or "perfected" Liens shall be deemed to include a reference to an "opposable" or "set up" Liens as against
third parties, (h) any "right of offset", "right of setoff" or similar expression shall be deemed to include
a "right of compensation", (i) "goods" shall be deemed to include "corporeal movable property" other
than chattel paper, documents of title, instruments, money and securities, (j) an "agent" shall be deemed to include a
"mandatary", (k) "foreclosure" shall be deemed to include the "exercise of a hypothecary right", (l) "lease"
shall be deemed to include a "lease" or a "contract of leasing (crédit-bail) ", as applicable, (m) "deposit
account" shall be deemed to include a "financial account" (within the meaning of Article 2713.6 of the Civil Code
of Quebec), (n) "construction liens" shall be deemed to include "legal hypothecs", (o) "joint and several"
shall be deemed to include "solidary" and "jointly and severally" shall be deemed to include "solidarily",
(p) "gross negligence or willful misconduct" shall be deemed to be "intentional or gross fault", (q) "beneficial
ownership" shall be deemed to include "ownership", (r) "easement" shall be deemed to include "servitude",
(s) "priority" shall be deemed to include "prior claim" or "rank", as applicable, (t) "legal
title" shall be deemed to include "holding title on behalf of an owner as mandatary or prête-nom", (u) "survey"
shall be deemed to include "certificate of location and plan", (v) "fee simple title" and "fee title"
shall be deemed to include "right of ownership", (w) "accounts" shall be deemed to include "claims"
(including "monetary claims"), (x) "leasehold interest" shall be deemed to include "valid rights resulting
from a lease", and (y) "guarantee" or "guaranty" and "guarantor" shall include "suretyship"
and "surety". The parties hereto confirm that it is their wish that this Agreement and any other document executed in connection
with the transactions contemplated herein be drawn up in the English language only (except if another language is required under any applicable
Law) and that all other documents contemplated thereunder or relating thereto, including notices, may also be drawn up in the English
language only. Each party hereto hereby confirms that it was represented by legal counsel and has had the opportunity to negotiate the
terms of this Agreement and any other Loan Documents, including the essential stipulations thereof, with the assistance of its legal counsel.
Les parties aux présentes confirment que c’est leur volonté que cette convention et les autres documents de crédit
soient rédigés en langue anglaise seulement et que tous les documents, y compris tous avis, envisagés par cette convention
et les autres documents peuvent être rédigés en langue anglaise seulement (sauf si une autre langue est requise en
vertu d’une loi applicable). Chaque partie aux présentes confirme qu’elle a été représentée
par des conseillers juridiques et a eu l’opportunité de négocier les termes de cette convention et des autres documents
de crédit, y compris leurs stipulations essentielles, avec l’aide de ses conseillers juridiques.
-69-
2. LOANS AND TERMS OF PAYMENT.
2.1. Revolving
Loans.
(a) Subject
to the terms and conditions of this Agreement (including, without limitation, Section 2.3(c) and Section 3.2),
and during the term of this Agreement, each Revolving Lender agrees (severally, not jointly or jointly and severally) to make revolving
loans ("Revolving Loans") to Borrowers in an amount at any one time outstanding not to exceed the lesser of:
(i) such
Lender's Revolver Commitment, or
(ii) such
Lender's Pro Rata Share of an amount equal to the lesser of:
(A) the
amount equal to the Maximum Revolver Amount minus the Amendment No. 1 Availability Block Amount, and
(B) the
amount equal to the Borrowing Base as of such date (based upon the most recent Borrowing Base Certificate delivered by Borrowers to Agent
and Revolving Agent)
; provided that, the aggregate principal
amount of Revolving Loans advanced on the Closing Date shall not exceed $25,000,000; provided, further, that following the Amendment No. 1
Closing Date, the Maximum Revolver Amount shall be subject to the Amendment No. 1 Availability Block Amount.
(b) Amounts
borrowed pursuant to this Section 2.1 may be repaid and, subject to the terms and conditions of this Agreement, reborrowed
at any time during the term of this Agreement. The outstanding principal amount of the Revolving Loans, together with interest and fees
accrued and unpaid thereon, shall constitute Obligations and shall be due and payable on the Maturity Date or, if earlier, on the date
on which they otherwise become due and payable pursuant to the terms of this Agreement.
-70-
2.2. Term
Loan.
(a) Subject
to the terms and conditions of this Agreement, on the Closing Date each Lender with a Term Loan Commitment agrees (severally, not jointly
or jointly and severally) to make term loans (collectively, the "Term Loan") to Borrowers in an amount equal to the lesser
of (i) such Lender's Term Loan Commitment, and (ii) such Lender's Pro Rata Share of the Term Loan Amount.
(b) The
principal of the Term Loan shall be repaid on July 31, 2025 and on the last Business Day of each fiscal quarter thereafter in
an amount equal to $1,012,500; provided however, nothing withstanding the forgoing, if a Going
Concern Rescission Event has not occurred by December 31, 2025, the amount of the repayment of principal of the Term Loan on January 31,
2026 shall be $4,050,000. The outstanding unpaid principal balance and all accrued and unpaid interest on the Term Loan shall be
due and payable on the earlier of (i) the Maturity Date, and (ii) the date on which the Term Loan otherwise becomes due and
payable pursuant to the terms of this Agreement. Any principal amount of the Term Loan that is repaid or prepaid may not be reborrowed.
All principal of, interest on, and other amounts payable in respect of the Term Loan shall constitute Obligations hereunder.
2.3. Borrowing
Procedures and Settlements.
(a) Procedure
for Borrowing. The Borrowing of the Term Loan and each Borrowing of a Revolving Loan shall be made by a delivery of a Notice of Borrowing
from an Authorized Person delivered to Revolving Agent (with a copy to Agent) and received by Revolving Agent and Agent no later than
2:00 p.m. (i) in the case of a request for a Base Rate Loan, on the Business Day that is one Business Day prior to the requested
Funding Date (or with respect to a Borrowing of any Revolving Loan, such shorter period of time as Revolving Agent is willing to accommodate
from time to time) and (ii) in the case of a request for a SOFR Loan, on the Business Day that is three (3) Business Days prior
to the requested Funding Date (or with respect to a Borrowing of any Revolving Loan, such shorter period of time as Revolving Agent is
willing to accommodate from time to time), specifying (A) whether such Loan is a Base Rate Loan or a SOFR Loan, (B) the amount
of such Borrowing, (C) the requested Funding Date (which shall be a Business Day), and (D) Administrative Borrower's wiring
instructions; provided, that Agent or Revolving Agent, as applicable, may, in its sole discretion, elect to accept as timely requests
that are received later than 2:00 p.m. on the applicable Business Day. Agent, Revolving Agent and Lenders may act without liability
upon the basis of written notice believed by Agent, Revolving Agent and Lenders in good faith to be from an Authorized Person. Agent,
Revolving Agent and each Lender shall be entitled to rely conclusively on any Authorized Person's authority
to request a Loan on behalf of Borrowers in accordance with the terms herein until Agent and Revolving Agent each receives written notice
to the contrary. Agent, Revolving Agent and Lenders shall have no duty to verify the authenticity
of the signature appearing on any written Notice of Borrowing. Each Notice of Borrowing shall be irrevocable and Borrowers shall
be bound to make a borrowing in accordance therewith; provided that a Notice of Borrowing delivered by Borrowers may state that
such notice is conditioned upon the effectiveness of a specified event (including a Permitted Acquisition), in which case such notice
may be revoked by the Borrowers (by notice to Revolving Agent (with a copy to Agent) on or prior to the specified event date) if such
condition is not satisfied. The parties hereto acknowledge and agree that Agent, Revolving Agent and the Revolving Lenders shall only
be required to make Revolving Loans one time each week.
-71-
(b) [Reserved].
(c) Making
of Revolving Loans.
(i) After
receipt of a Notice of Borrowing with respect to Revolving Loans pursuant to Section 2.3(a), Revolving Agent shall promptly
notify Agent and the Revolving Lenders by telecopy, telephone, email, or other electronic form of transmission, of the requested Borrowing;
such notification to be sent on the Business Day or U.S. Government Securities Business Day, as applicable, promptly upon receipt by Revolving
Agent of a Notice of Borrowing. If Revolving Agent has notified the Revolving Lenders of a requested Borrowing of Revolving Loans, then
each Revolving Lender shall make the amount of such Lender's Pro Rata Share of the requested Borrowing available to Revolving Agent in
immediately available funds, to Revolving Agent's Account, on the Business Day that is the requested Funding Date. After Revolving Agent's
receipt of the proceeds of such Revolving Loans from the Revolving Lenders, Revolving Agent shall make the proceeds thereof available
to Borrowers on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Revolving Agent
to the Designated Account; provided, that no Revolving Lender shall have an obligation to make any Revolving Loan (A) if one
or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date
for the applicable Borrowing (unless such condition has been waived in writing by Revolving Lenders and Administrative Borrower has received
a written consent from Agent to such waiver), (B) the requested Borrowing will exceed the Availability on such Funding Date, or (C) the
requested Borrowing would cause Revolver Usage to exceed the Maximum Revolver Amount minus the Amendment No. 1 Availability
Block Amount.
(ii) Unless
Revolving Agent receives notice from a Revolving Lender prior to the making of any requested Revolving Loans that such Lender will not
make available as and when required hereunder to Revolving Agent for the account of Borrowers the amount of that Lender's Pro Rata Share
of the Borrowing, Revolving Agent may assume that each Revolving Lender has made or will make such amount available to Revolving Agent
in immediately available funds on the Funding Date and Revolving Agent may (but shall not be so required), in reliance upon such assumption,
make available to Borrowers a corresponding amount. If, on the requested Funding Date, any Revolving Lender shall not have remitted the
full amount that it is required to make available to Revolving Agent in immediately available funds and if Revolving Agent has made available
to Borrowers such amount on the requested Funding Date, then such Lender shall make the amount of such Lender's Pro Rata Share of the
requested Borrowing available to Revolving Agent in immediately available funds, to Revolving Agent's Account, no later than 10:00 a.m. on
the Business Day that is the first Business Day after the requested Funding Date (in which case, the interest accrued on such Lender's
portion of such Borrowing for the Funding Date shall be for Revolving Agent's separate account). A notice submitted by Revolving Agent
to any Revolving Lender with respect to amounts owing under this Section 2.3(c)(ii) shall be conclusive, absent manifest
error. If the amount that a Revolving Lender is required to remit is made available to Revolving Agent, then such payment to Revolving
Agent shall constitute such Lender's Revolving Loan for all purposes of this Agreement. If such amount is not made available to Revolving
Agent on the Business Day following the Funding Date, Revolving Agent will notify Administrative Borrower of such failure to fund and,
upon demand by Revolving Agent, Borrowers shall pay such amount to Revolving Agent for Revolving Agent's account, together with interest
thereon for each day elapsed since the date of such Borrowing, at a rate per annum equal to the interest rate applicable at the time to
the Revolving Loans composing such Borrowing.
-72-
(d) Protective
Advances.
(i) Any
contrary provision of this Agreement or any other Loan Document notwithstanding, at any time after the occurrence and during the continuance
of a Default or an Event of Default, Agent hereby is authorized by Borrowers and the Lenders, from time to time, in Agent's sole discretion,
to make Loans to, or for the benefit of, Borrowers, on behalf of the Lenders, that Agent, in its Permitted Discretion, deems necessary
or desirable (1) to preserve or protect the Collateral, or any portion thereof, or (2) to enhance the likelihood of repayment
of the Obligations (the Loans described in this Section 2.3(d)(i) shall be referred to as "Protective Advances").
(ii) [Reserved].
(iii) Each
Protective Advance shall be deemed to be a Loan hereunder, except that no Protective Advance shall be eligible to be a SOFR Loan. Prior
to Settlement of any Protective Advance, all payments with respect thereto, including interest thereon, shall be payable to Agent solely
for its own account. Each Lender shall be obligated to settle with Agent as provided in Section 2.3(e) (or Section 2.3(g),
as applicable) for the amount of such Lender's Pro Rata Share of any Protective Advance. The Protective Advances shall be repayable on
demand, secured by Agent's Liens, constitute Obligations hereunder, and bear interest at the rate applicable from time to time to the
Term Loan bearing interest at a rate determined by reference to the Base Rate.
(iv) The
provisions of this Section 2.3(d) are for the exclusive benefit of Agent and the Lenders and are not intended to benefit
Borrowers (or any other Loan Party) in any way.
-73-
(e) Settlement.
It is agreed that each Lender's funded portion of the Loans (including Protective Advances) is intended by the Lenders to equal, at all
times, such Lender's Pro Rata Share of the outstanding Loans. Such agreement notwithstanding, Agent, Revolving Agent and the other Lenders
agree (which agreement shall not be for the benefit of Borrowers) that in order to facilitate the administration of this Agreement and
the other Loan Documents, settlement among the Lenders as to the Loans (including Protective Advances) shall take place on a periodic
basis in accordance with the following provisions:
(i) Agent
(solely with respect to the Term Loan and Protective Advances) and Revolving Agent (solely with respect to Revolving Loans) shall request
settlement ("Settlement") with the Lenders with a frequency determined by Agent or Revolving Agent, as applicable, in
its sole discretion (1) for itself, with respect to the applicable outstanding Loans (including Protective Advances) and (2) with
respect to any Loan Party's or any of their Subsidiaries' payments or other amounts received, as to each by notifying the applicable Lenders
by telecopy, telephone, or other similar form of transmission, of such requested Settlement, no later than 5:00 p.m. on the Business
Day immediately prior to the date of such requested Settlement (the date of such requested Settlement being the "Settlement Date").
Such notice of a Settlement Date shall include a summary statement of the amount of outstanding applicable Loans (including Protective
Advances) for the period since the prior Settlement Date. Subject to the terms and conditions contained herein (including Section 2.3(g)):
(y) if the amount of the applicable Loans (including Protective Advances) made by a Lender that is not a Defaulting Lender exceeds
such Lender's Pro Rata Share of the applicable Loans (including Protective Advances) as of a Settlement Date, then Agent or Revolving
Agent, as applicable, shall, by no later than 3:00 p.m. on the Settlement Date, transfer in immediately available funds to a Deposit
Account of such Lender (as such Lender may designate), an amount such that each such Lender shall, upon receipt of such amount, have as
of the Settlement Date, its Pro Rata Share of the applicable Loans (including Protective Advances), and (z) if the amount of the
applicable Loans (including Protective Advances) made by a Lender is less than such Lender's Pro Rata Share of the applicable Loans (including
Protective Advances) as of a Settlement Date, such Lender shall no later than 3:00 p.m. on the Settlement Date transfer in immediately
available funds to Agent's Account or Revolving Agent's Account, as applicable, an amount such that each such Lender shall, upon transfer
of such amount, have as of the Settlement Date, its Pro Rata Share of the applicable Loans (including Protective Advances). Such amounts
made available to Agent under clause (z) of the immediately preceding sentence shall be applied against the amounts of Protective
Advances made by Agent and shall constitute Loans of such Lenders. If any such amount is not made available to Agent or Revolving Agent,
as applicable, by any Lender on the Settlement Date applicable thereto to the extent required by the terms hereof, Agent or Revolving
Agent, as applicable, shall be entitled to recover for its account such amount on demand from such Lender together with interest thereon
at the Defaulting Lender Rate.
(ii) In
determining whether a Lender's balance of the Loans (including Protective Advances) is less than, equal to, or greater than such Lender's
Pro Rata Share of the Loans (including Protective Advances) as of a Settlement Date, Agent or Revolving Agent, as applicable, shall, as
part of the relevant Settlement, apply to such balance the portion of payments actually received in good funds by Agent or Revolving Agent,
as applicable, with respect to principal, interest, fees payable by Borrowers and allocable to the Lenders hereunder, and proceeds of
Collateral.
(iii) Between
Settlement Dates, Agent, to the extent Protective Advances are outstanding, may pay over to Agent any payments or other amounts received
by Agent, that in accordance with the terms of this Agreement would be applied to the reduction of the Loans, for application to the Protective
Advances. During the period between Settlement Dates, Agent with respect to Protective Advances, and each Lender with respect to the Loans
other than Protective Advances, shall be entitled to interest at the applicable rate or rates payable under this Agreement on the daily
amount of funds employed by Agent, or the Lenders, as applicable.
-74-
(iv) Anything
in this Section 2.3(e) to the contrary notwithstanding, in the event that a Lender is a Defaulting Lender, Agent shall
be entitled to refrain from remitting settlement amounts to the Defaulting Lender and, instead, shall be entitled to elect to implement
the provisions set forth in Section 2.3(g).
(f) Notation.
Consistent with Section 13.1(h), (i) Agent, as a non-fiduciary agent for Borrowers, shall maintain a register showing
the principal amount and stated interest of the Term Loan owing to each Term Loan Lender and the Protective Advances owing to Agent, and
the interests therein of each Lender, from time to time and such register shall, absent manifest error, conclusively be presumed to be
correct and accurate, and (ii) Revolving Agent, as a non-fiduciary agent for Borrowers, shall maintain a register showing the principal
amount and stated interest of the Revolving Loans owing to each Revolving Lender, from time to time and such register shall, absent manifest
error, conclusively be presumed to be correct and accurate.
(g) Defaulting
Lenders. Notwithstanding the provisions of Section 2.4(b)(iii), neither Agent nor Revolving Agent shall be obligated to
transfer to a Defaulting Lender any payments made by Borrowers to Agent or Revolving Agent, as applicable, for the Defaulting Lender's
benefit or any proceeds of Collateral that would otherwise be remitted hereunder to the Defaulting Lender, and, in the absence of such
transfer to the Defaulting Lender, Agent or Revolving Agent, as applicable, shall transfer any such payments (A) first, to Agent
to the extent of any Protective Advances that were made by Agent and that were required to be, but were not, paid by Defaulting Lender,
(B) second, to each Non-Defaulting Lender ratably in accordance with their Commitments (but, in each case, only to the extent that
such Defaulting Lender's portion of a Loan (or other funding obligation) was funded by such other Non-Defaulting Lender), (C) third,
in Agent's or Revolving Agent's, as applicable, sole discretion, to a suspense account maintained by Agent or Revolving Agent, as applicable,
the proceeds of which shall be retained by Agent or Revolving Agent, as applicable, and (D) fourth, from and after the date on which
all other Obligations have been paid in full, to such Defaulting Lender in accordance with tier (K) of Section 2.4(b)(iii).
Solely for the purposes of voting or consenting to matters with respect to the Loan Documents (including the calculation of Pro Rata Share
in connection therewith) and for the purpose of calculating the fee payable under Section 2.10(b), such Defaulting Lender
shall be deemed not to be a "Lender" and such Lender's Commitment shall be deemed to be zero; provided, that the foregoing
shall not apply to any of the matters governed by Section 14.1(a)(i) through (iii). The provisions of this Section 2.3(g) shall
remain effective with respect to such Defaulting Lender until the earlier of (y) the date on which all of the Non-Defaulting Lenders,
Agent and Borrowers shall have waived, in writing, the application of this Section 2.3(g) to such Defaulting Lender,
or (z) the date on which such Defaulting Lender makes payment of all amounts that it was obligated to fund hereunder, pays to Agent
or Revolving Agent, as applicable, all amounts owing by Defaulting Lender in respect of the amounts that it was obligated to fund hereunder,
and, if requested by Agent or Revolving Agent, as applicable, provides adequate assurance of its ability to perform its future obligations
hereunder (on which earlier date, so long as no Event of Default has occurred and is continuing, any remaining cash collateral held by
Agent or Revolving Agent, as applicable, pursuant to Section 2.3(g)(ii) shall be released to Borrowers). The operation
of this Section 2.3(g) shall not be construed to increase or otherwise affect the Commitment of any Lender, to relieve
or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse
the performance by any Borrower of its duties and obligations hereunder to Agent or to the Lenders other than such Defaulting Lender.
Any failure by a Defaulting Lender to fund amounts that it was obligated to fund hereunder shall constitute a material breach by such
Defaulting Lender of this Agreement and shall entitle Borrowers, at their option, upon written notice to Agent or Revolving Agent, as
applicable, to arrange for a substitute Lender to assume the Commitment of such Defaulting Lender, such substitute Lender to be reasonably
acceptable to Agent or Revolving Agent, as applicable. In connection with the arrangement of such a substitute Lender, the Defaulting
Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance
in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so)
subject only to being paid its share of the outstanding Obligations (other than Bank Product Obligations, but including all interest,
fees, and other amounts that may be due and payable in respect thereof); provided, that any such assumption of the Commitment of
such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups' or Borrowers' rights or remedies against
any such Defaulting Lender arising out of or in relation to such failure to fund. In the event of a direct conflict between the priority
provisions of this Section 2.3(g) and any other provision contained in this Agreement or any other Loan Document, it
is the intention of the parties hereto that such provisions be read together and construed, to the fullest extent possible, to be in concert
with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of
this Section 2.3(g) shall control and govern.
-75-
(h) Independent
Obligations. All Loans (other than Protective Advances) shall be made by the Lenders contemporaneously and in accordance with their
Pro Rata Shares. It is understood that (i) no Lender shall be responsible for any failure by any other Lender to perform its obligation
to make any Loan (or other extension of credit) hereunder, nor shall any Commitment of any Lender be increased or decreased as a result
of any failure by any other Lender to perform its obligations hereunder, and (ii) no failure by any Lender to perform its obligations
hereunder shall excuse any other Lender from its obligations hereunder.
2.4. Payments;
Reductions of Commitments; Prepayments.
(a) Payments
by Borrowers.
(i) Except
as otherwise expressly provided herein, (x) all payments by Borrowers relating to the Term Loan or Protective Advances (including,
in each case, interests therein) or fees and expenses owing to Agent or any Term Loan Lender shall be made to Agent's Account and (y) all
payments by Borrowers relating to Revolving Loans (including interests therein) or fees and expenses owing to Revolving Agent or any Revolving
Lender shall be made to Revolving Agent’s Account, and, in each case, shall be made in immediately available funds, no later than
1:30 p.m. on the date specified herein; provided that, for the avoidance of doubt, any payments deposited into a Controlled
Account (as defined in the Guaranty and Security Agreement) shall be deemed not to be received by Agent or Revolving Agent, as applicable,
on any Business Day unless immediately available funds have been credited to Agent's Account or Revolving Agent’s Account, as applicable,
prior to 1:30 p.m. on such Business Day. Any payment received by Agent or Revolving Agent, as applicable, in immediately available
funds in Agent's Account or Revolving Agent’s Account, as applicable, later than 1:30 p.m. may be deemed to have been received
(unless Agent or Revolving Agent, as applicable, in its sole discretion, elects to credit it on the date received) on the following Business
Day and any applicable interest or fee shall continue to accrue until such following Business Day.
-76-
(ii) Unless
Agent or Revolving Agent, as applicable, receives written notice from Borrowers prior to the date on which any payment is due to the Lenders
that Borrowers will not make such payment in full as and when required, Agent or Revolving Agent, as applicable, may assume that Borrowers
have made (or will make) such payment in full to Agent or Revolving Agent, as applicable, on such date in immediately available funds
and Agent or Revolving Agent, as applicable, may (but shall not be so required), in reliance upon such assumption, distribute to each
Lender on such due date an amount equal to the amount then due such Lender. If and to the extent Borrowers do not make such payment in
full to Agent or Revolving Agent, as applicable, on the date when due, each Lender severally shall repay to Agent or Revolving Agent,
as applicable, on demand such amount distributed to such Lender, together with interest thereon at the Defaulting Lender Rate for each
day from the date such amount is distributed to such Lender until the date repaid.
(b) Apportionment
and Application.
(i) So
long as no Application Event has occurred and is continuing and except as otherwise provided herein with respect to Defaulting Lenders,
all principal and interest payments received by Agent or Revolving Agent, as applicable, shall be apportioned ratably among the Lenders
(according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and all payments of fees
and expenses received by Agent or Revolving Agent, as applicable, (other than fees or expenses that are for Agent's or Revolving Agent’s,
as applicable, separate account) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation
to which a particular fee or expense relates.
(ii) Subject
to Section 2.4(b)(v), Section 2.4(d)(ii) and Section 2.4(e), all payments to be made hereunder
by Borrowers shall be remitted to Agent or Revolving Agent, as applicable, and all such payments, and all proceeds of Collateral received
by Agent or Revolving Agent, as applicable, shall be applied, so long as no Application Event has occurred and is continuing and except
as otherwise provided herein with respect to Defaulting Lenders, to reduce the balance of the Loans outstanding (including fees, interest
and principal) and, thereafter, to Borrowers (to be wired to the Designated Account) or such other Person entitled thereto under applicable
law.
(iii) At
any time that an Application Event has occurred and is continuing and except as otherwise provided herein with respect to Defaulting Lenders,
all payments remitted to Agent and Revolving Agent and all proceeds of Collateral received by Agent shall be applied as follows:
(A) first,
to pay any Lender Group Expenses (including cost or expense reimbursements) or indemnities then due to Agent and Revolving Agent under
the Loan Documents, until paid in full,
(B) second,
to pay any fees or premiums then due to Agent and Revolving Agent under the Loan Documents, until paid in full,
-77-
(C) third,
to pay interest and principal on Protective Advances that are held solely by Agent,
(D) fourth,
to pay all remaining interest due in respect of all Protective Advances, until paid in full,
(E) fifth,
to pay all remaining principal of all Protective Advances, until paid in full,
(F) sixth,
ratably, to pay any Lender Group Expenses (including cost or expense reimbursements) or indemnities then due to any of the Lenders under
the Loan Documents, until paid in full,
(G) seventh,
ratably, to pay any fees or premiums then due to any of the Lenders under the Loan Documents, until paid in full,
(H) eighth,
ratably, to pay interest accrued in respect of the Revolving Loans and the Term Loan, until paid in full,
(I) ninth,
ratably
i. ratably,
to pay the principal of all Revolving Loans and the Term Loan, until paid in full, and
ii. ratably,
up to the lesser of (y) the amount (after taking into account any amounts previously paid pursuant to this clause (ii) during
the continuation of the applicable Application Event) of the most recently established Bank Product Reserve Amount, which amount was established
prior to the occurrence of, and not in contemplation of, the subject Application Event, and (z) $2,000,000 (after taking into account
any amounts previously paid pursuant to this clause iii. during the continuation of the applicable Application Event), to (I) the
Bank Product Providers based upon amounts then certified by each applicable Bank Product Provider to Agent (in form and substance satisfactory
to Agent) to be due and payable to such Bank Product Provider on account of Bank Product Obligations (but not in excess of the Bank Product
Reserve Amount established for the Bank Product Obligations of such Bank Product Provider), and (II) with any balance to be paid
to Agent, to be held by Agent, for the ratable benefit of the Bank Product Providers, as cash collateral (which cash collateral may be
released by Agent to the applicable Bank Product Provider and applied by such Bank Product Provider to the payment or reimbursement of
any amounts due and payable with respect to Bank Product Obligations owed to the applicable Bank Product Provider as and when such amounts
first become due and payable and, if and at such time as all such Bank Product Obligations are paid or otherwise satisfied in full, the
cash collateral held by Agent in respect of such Bank Product Obligations shall be reapplied pursuant to this Section 2.4(b)(iii),
beginning with tier (A) hereof,
(J) tenth,
to pay any other Obligations other than Obligations owed to Defaulting Lenders (including being paid, ratably, to the Bank Product Providers
on account of all amounts then due and payable in respect of Bank Product Obligations, with any balance to be paid to Agent, to be held
by Agent, for the ratable benefit of the Bank Product Providers, as cash collateral (which cash collateral may be released by Agent to
the applicable Bank Product Provider and applied by such Bank Product Provider to the payment or reimbursement of any amounts due and
payable with respect to Bank Product Obligations owed to the applicable Bank Product Provider as and when such amounts first become due
and payable and, if and at such time as all such Bank Product Obligations are paid or otherwise satisfied in full, the cash collateral
held by Agent in respect of such Bank Product Obligations shall be reapplied pursuant to this Section 2.4(b)(iii), beginning
with tier (A) hereof),
-78-
(K) eleventh,
ratably to pay any Obligations owed to Defaulting Lenders; and
(L) twelfth,
to Borrowers (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(iv) Agent
promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds
as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.3(e).
(v) In
each instance, so long as no Application Event has occurred and is continuing, Section 2.4(b)(ii) shall not apply to
any payment made by Borrowers to Agent and specified by Borrowers to be for the payment of specific Obligations then due and payable (or
prepayable) under any provision of this Agreement or any other Loan Document.
(vi) For
purposes of Section 2.4(b)(iii), "paid in full" of a type of Obligation means payment in cash or immediately available
funds of all amounts owing on account of such type of Obligation, including interest accrued after the commencement of any Insolvency
Proceeding, default interest, interest on interest, and expense reimbursements, irrespective of whether any of the foregoing would be
or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(vii) In
the event of a direct conflict between the priority provisions of this Section 2.4 and any other provision contained in this
Agreement, the Agreement Among Lenders or any other Loan Document, it is the intention of the parties hereto that such provisions be read
together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict
that cannot be resolved as aforesaid, if the conflict relates to the provisions of Section 2.3(g) and this Section 2.4,
then the provisions of Section 2.3(g) shall control and govern, and if otherwise, then the terms and provisions of this
Section 2.4 shall control and govern other than with respect to application of payments and proceeds of Collateral and any
other matters among Agent, Revolving Agent and Lenders, in which case, the Agreement Among Lenders shall control and govern.
-79-
(c) Reduction
of Commitments.
(i) Revolver
Commitments. The Revolver Commitments shall terminate in full on the Maturity Date or earlier termination thereof pursuant to the
terms of this Agreement. Subject to the Revolver Fee Letter, Borrowers may voluntarily reduce the Revolver Commitments to an amount not
less than the sum of (A) the Revolver Usage as of such date (giving effect to any Revolving Loans that are proposed to be contemporaneously
prepaid with the proposed reduction on such day), plus (B) the principal amount of all Revolving Loans not yet made
as to which a Notice of Borrowing has been delivered by Borrowers under Section 2.3(a). Each such voluntary reduction shall
be in an amount which is not less than $5,000,000 (unless the Revolver Commitments are being reduced to zero), shall be made by providing
not less than three (3) Business Days prior written notice to Revolving Agent (with a copy to Agent) (or such later date as permitted
by Revolving Agent in its sole discretion), and shall be irrevocable. The Revolver Commitments, once reduced, may not be increased. Each
such reduction of the Revolver Commitments shall reduce the Revolver Commitments of each Lender proportionately in accordance with its
ratable share thereof. Notwithstanding anything to the contrary in this Agreement or otherwise and subject to the Revolver Fee Letter,
on any date, if (A1) the
Term Loan is prepaid in connection with an optional prepayment or a mandatory prepayment pursuant to Section 2.4(e)(iii),
the Maximum Revolver Amount (and corresponding Revolver Commitments) shall be permanently reduced by an amount equal to the Pro Rata Commitment
Reduction Amount, or (B)2) the
aggregate outstanding principal balance of the Term Loan on such date is (or after giving effect to any contemplated payment, will be)
less than the Maximum Revolver Amount on such date, the Maximum Revolver Amount (and corresponding Revolver Commitments) shall be permanently
reduced to the then outstanding principal balance of the Term Loan, and in each case, Borrowers shall make any prepayment of Revolving
Loans required by this Agreement as a result of such reduction. ;
provided that, notwithstanding the foregoing, in
no event shall the Maximum Revolver Amount (or the corresponding Revolver Commitments) be reduced to an amount less than $27,250,000 pursuant
to the preceding clauses (1) or (2) of this Section 2.4(c).
(ii) Term
Loan Commitments. The Term Loan Commitments shall terminate upon the making of the Term Loan on the Closing Date.
(d) Optional
Prepayments.
(i) Revolving
Loans. Subject to the Revolver Fee Letter, Borrowers may prepay the principal of any Revolving Loan at any time in whole or in part.
(ii) Term
Loan. Subject to the Fee Letter, Borrowers may, upon at least three (3) Business Days prior written notice to Agent (or such
later date as permitted by Agent in its sole discretion), prepay the principal of the Term Loan, in whole or in part. Each prepayment
made pursuant to this Section 2.4(d)(ii) shall be accompanied by the payment of accrued interest to the date of such
payment on the amount prepaid. Each such optional prepayment shall be applied against the remaining installments of principal due on the
Term Loan in the direct order of maturity (for the avoidance of doubt, any amount that is due and payable on the Maturity Date shall constitute
an installment).
(e) Mandatory
Prepayments.
(i) Borrowing
Base; Maximum Revolver Amount. If, at any time, (A) the Revolver Usage on such date exceeds (B) the lesser of (x) the
Borrowing Base reflected in the Borrowing Base Certificate most recently delivered by Borrowers to Agent, as adjusted for Reserves established
by Revolving Agent, or (y) the Maximum Revolver Amount less the Amendment No. 1 Availability Block Amount, then Borrowers shall
promptly, but in any event, within one (1) Business Day, prepay the Obligations in accordance with Section 2.4(f)(i) in
an aggregate amount equal to the amount of such excess.
-80-
(ii) Available
Cash Sweep. If, at any time, Available Cash exceeds $55,000,000, then Borrowers shall promptly, but in any event, within three (3) Business
Days, prepay the Obligations in accordance with Section 2.4(f)(i) in an aggregate amount equal to the lesser of (x) the
amount of such excess and (y) the maximum amount that would not cause the Revolver Usage on such date after giving effect to such
prepayment to be less than $15,000,000.
(iii) Dispositions.
Subject to the Fee Letter and the Revolver Fee Letter, within one (1) Business Day of the date of receipt by any Loan Party or any
of its Subsidiaries of the Net Cash Proceeds of any voluntary or involuntary sale or disposition of assets of any Loan Party or any of
its Subsidiaries (including Net Cash Proceeds of insurance or arising from casualty losses or condemnations and payments in lieu thereof,
and Net Cash Proceeds constituting initial consideration
received with respect to any voluntary or involuntary sale or disposition of assets (including, for the
avoidance of doubt, the "Advance Payment" (as defined in
the Purchase Agreement)), but excluding Net Cash Proceeds from
sales or dispositions which qualify as Permitted Dispositions under clauses (a), (b), (c), (d), (e), (f), to the extent any such Disposition
is consistent with past practice (i), (j), (k), (l), (m), (n), or (o) of the definition of Permitted Dispositions), Borrowers shall
prepay the outstanding principal amount of the Obligations in accordance with Section 2.4(f)(ii) in an amount equal to
100% of such Net Cash Proceeds received by such Person in connection with such sales or dispositions (or, solely with respect to a Permitted
Disposition under clause (s) of the definition of Permitted Dispositions, the amount of such Net Cash Proceeds as set forth in such
clause); provided, that so long as (A) no Default or Event of Default shall have occurred and is continuing or would result
therefrom, (B) Borrowers shall have given Agent prior written notice of Borrowers' intention to apply such monies to the costs of
replacement of the properties or assets that are the subject of such sale or disposition or the cost of purchase or construction of other
assets useful in the business of such Loan Party or its Subsidiaries, (C) the monies are held in a Deposit Account in which Revolving
Agent (in its capacity as sub-agent of Agent) has a perfected first-priority security interest, and (D) such Loan Party or its Subsidiary,
as applicable, completes such replacement, purchase, or construction within 180 days after the initial receipt of such monies, then the
Loan Party or such Loan Party's Subsidiary whose assets were the subject of such disposition shall have the option to apply such monies
to the costs of replacement of the assets that are the subject of such sale or disposition unless and to the extent that such applicable
period shall have expired without such replacement, purchase, or construction being made or completed, in which case, any amounts remaining
in the Deposit Account referred to in clause (C) above shall be paid to Agent and applied in accordance with Section 2.4(f)(ii);
provided, that (1) no Loan Party nor any of its Subsidiaries shall have the right to use such Net Cash Proceeds (other than
Net Cash Proceeds of insurance or arising from casualty losses or condemnations and payments in lieu thereof) to make such replacements,
purchases, or construction in excess of $5,000,000 in any given fiscal year, and (2) the Net Cash Proceeds from sales or dispositions
under clauses (r) or (s) of the definition of Permitted Dispositions may not be used to make such replacements, purchases or
constructions. Nothing contained in this Section 2.4(e)(iii) shall permit any Loan Party or any of its Subsidiaries to
sell or otherwise dispose of any assets other than in accordance with Section 6.4.
(iv) Extraordinary
Receipts. If an Event of Default has occurred and is continuing, within one (1) Business Day of the date of receipt by any Loan
Party or any of its Subsidiaries of any Extraordinary Receipts, Borrowers shall prepay the outstanding principal amount of the Obligations
in accordance with Section 2.4(f)(ii) in an amount equal to 100% of such Extraordinary Receipts, net of any reasonable
expenses incurred in collecting such Extraordinary Receipts.
-81-
(v) Indebtedness.
Subject to the Fee Letter, within one Business Day of the date of incurrence by any Loan Party or any of its Subsidiaries of any Indebtedness
(other than Permitted Indebtedness), Borrowers shall prepay the outstanding principal amount of the Obligations in accordance with Section 2.4(f)(ii) in
an amount equal to 100% of the Net Cash Proceeds received by such Person in connection with such incurrence. The provisions of this Section 2.4(e)(v) shall
not be deemed to be implied consent to any such incurrence otherwise prohibited by the terms of this Agreement.
(vi) Curative
Equity. Within one Business Day of the date of receipt by any Loan Party of the proceeds of any Curative Equity pursuant to Section 9.3,
Borrowers shall prepay the outstanding principal of the Obligations in accordance with Section 2.4(f)(ii) in an amount
equal to 100% of such proceeds.
(vii) Excess
Cash Flow. For each Excess Cash Flow Period during the term of this Agreement, within 10 days of delivery to Agent of audited annual
financial statements pursuant to Section 5.1 (or (x) with respect to the First Excess Cash Flow Period, the financial
statements for the fiscal quarter ending January 31, 2025 delivered pursuant to Section 5.1, and (y) with respect
to the Second Excess Cash Flow Period, the financial statements for the fiscal quarter ending July 31, 2025 delivered pursuant to
Section 5.1), or, if such financial statements are not delivered to Agent on the date such statements are required to be delivered
pursuant to Section 5.1, within 10 days after the date such statements were required to be delivered to Agent pursuant to
Section 5.1, (the "Excess Cash Flow Due Date"), Borrowers shall prepay the outstanding principal amount of
the Obligations in accordance with Section 2.4(f)(ii) in an amount equal to (1) the Excess Cash Flow Sweep Percentage
of the Excess Cash Flow of Comtech and its Subsidiaries for such Excess Cash Flow Period, minus (2) the aggregate amount of all voluntary
prepayments in respect of the outstanding principal balance of the Term Loan made by Borrowers during such Excess Cash Flow Period; provided,
that any Excess Cash Flow payment made pursuant to this Section 2.4(e)(vii) shall exclude the portion of Excess Cash
Flow that is attributable to the target of a Permitted Acquisition and that accrued prior to the closing date of such Permitted Acquisition.
(viii) Limitation.
Notwithstanding any other provisions of this Section 2.4(e) to the contrary, to the extent that any or all of the Net
Cash Proceeds received by a Foreign Subsidiary that would otherwise be required to be applied as a prepayment pursuant to Section 2.4(e)(iii) or
(iv) or Excess Cash Flow attributable to a Foreign Subsidiary that would otherwise be required to be applied as a prepayment
pursuant to Section 2.4(e)(vii), but is prohibited, restricted or delayed by applicable local law from being repatriated to
the United States, or to the extent that any or all of the Net Cash Proceeds received by a Foreign Subsidiary (other than a Designated
Foreign Guarantor) that would otherwise be required to be applied as a prepayment pursuant to Section 2.4(e)(iii) or (iv) or
Excess Cash Flow attributable to a Foreign Subsidiary (other than a Designated Foreign Guarantor) that would otherwise be required to
be applied as a prepayment obligation pursuant to Section 2.4(e)(vii) could have a material adverse tax consequence (in
each case, as determined in good faith by the Borrower and including as the result of the repatriation thereof), an amount equal to the
portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay the Loans at the times provided
in this Section 2.4(e) until such time, in the reasonable opinion of the Borrowers, as such prohibition, restriction,
delay or tax consequence no longer applies.
-82-
(f) Application
of Payments.
(i) Each
prepayment pursuant to Section 2.4(e)(i) or 2.4(e)(ii) shall, (1) so long as no Application Event shall
have occurred and be continuing, be applied to the outstanding principal amount of the Revolving Loans until paid in full, and (2) if
an Application Event shall have occurred and be continuing, be applied in the manner set forth in Section 2.4(b)(iii).
(ii) Administrative
Borrower shall provide not less than one Business Day prior written notice to Agent no later than 3:00 p.m. on such day of any prepayment
pursuant to Section 2.4(e)(iii), 2.4(e)(iv), 2.4(e)(v), 2.4(e)(vi), or 2.4(e)(vii) and each
such prepayment shall (A) so long as no Application Event shall have occurred and be continuing, be applied to the outstanding principal
amount of the Term Loan until paid in full, and (B) if an Application Event shall have occurred and be continuing, be applied in
the manner set forth in Section 2.4(b)(iii). Each such prepayment of the Term Loan shall be applied pro rata against the remaining
installments of principal of the Term Loan (for the avoidance of doubt, any amount that is due and payable on the Maturity Date shall
constitute an installment). Notwithstanding anything to the contrary in this Agreement or otherwise, if, on any date, (A) the Term
Loan is prepaid in connection with an optional prepayment or a mandatory prepayment pursuant to Section 2.4(e)(iii), the Maximum
Revolver Amount (and corresponding Revolver Commitments) shall be permanently reduced by an amount equal to the Pro Rata Commitment Reduction
Amount, or (B) the aggregate outstanding principal balance of the Term Loan on such date (taking into account any contemplated payments
on such date) is less than the Maximum Revolver Amount on such date, the Maximum Revolver Amount (and corresponding Revolver Commitments)
shall be permanently reduced to the then outstanding principal balance of the Term Loan, and in each case, (x) such prepayment shall
be accompanied by a permanently reduction of the Maximum Revolver Commitments by an amount equal to the Pro Rata Commitment Reduction
Amount, and (y) to the extent any Revolving Loans are then outstanding, a portion of such prepayment equal to the Pro Rata Commitment
Reduction Amount shall be applied to prepay Revolving Loans in lieu of being applied to prepay a like amount of the Term Loan.
2.5. Promise
to Pay; Promissory Notes.
(a) Borrowers
agree to pay the Lender Group Expenses on the earliest of (i) the last Business Day of the month following the date on which the
applicable Lender Group Expenses were first incurred, (ii) five (5) Business Days after the presentment of an invoice therefor
(except for Lender Group Expenses invoiced on or prior to the Amendment No. 1 Closing Date, all of which shall be paid on or prior
to the Amendment No. 1 Closing Date), or (iii) the date on which demand therefor is made by Agent or, solely with respect to
Lender Group Expenses of Revolving Agent or any Revolving Lender, Revolving Agent, as applicable. Borrowers promise to pay all of the
Obligations (including principal, interest, premiums, if any, fees, costs, and expenses (including Lender Group Expenses)) in full on
the Maturity Date or, if earlier, on the date on which the Obligations (other than the Bank Product Obligations) become due and payable
pursuant to the terms of this Agreement. Borrowers agree that their obligations contained in the first sentence of this Section 2.5(a) shall
survive payment or satisfaction in full of all other Obligations.
-83-
(b) Any
Lender may request that any portion of its Commitments or the Loans made by it be evidenced by one or more promissory notes. In such event,
Borrowers shall execute and deliver to such Lender the requested promissory notes payable to the order of such Lender in a form furnished
by such Lender and reasonably satisfactory to Borrowers. Thereafter, the portion of the Commitments and Loans evidenced by such promissory
notes and interest thereon shall at all times be represented by one or more promissory notes in such form payable to the order of the
payee named therein.
2.6. Interest
Rates; Rates, Payments, and Calculations.
(a) Interest
Rates. Except as provided in Section 2.6(c) and Section 2.12(d), all Obligations shall bear interest
as follows:
(i) if
the relevant Obligation is a SOFR Loan, at a per annum rate equal to Term SOFR plus the SOFR Margin, and
(ii) otherwise,
at a per annum rate equal to the Base Rate plus the Base Rate Margin.
(b) [Reserved].
(c) Default
Rate. (i) Automatically upon the occurrence and during the continuation of an Event of Default under Section 8.4
or 8.5 and (ii) upon the occurrence and during the continuation of any other Event of Default (other than an Event of Default
under Section 8.4 or 8.5), at the direction of Agent, Revolving Agent (solely with respect to Revolving Loans) or the
Required Lenders, and upon written notice by Agent to Borrowers of such direction (provided, that such notice shall not be required
for any Event of Default under Section 8.1), all Loans and all Obligations shall bear interest, from the date such Event of
Default occurred until the date such Event of Default is waived in writing in accordance herewith, at a per annum rate equal to two percentage
points above the per annum rate otherwise applicable thereunder.
(d) Payment.
Except to the extent provided to the contrary in Section 2.10 or Section 2.12(a), (i) all interest and all
other fees payable hereunder or under any of the other Loan Documents shall be due and payable (in cash
or PIK Interest, as applicable), in
arrears, on the last Business Day of each month, and (ii) all costs and expenses payable hereunder or under any of the other Loan
Documents, and all other Lender Group Expenses shall be due and payable on (x) with respect to Lender Group Expenses outstanding
as of the Closing Date, the Closing Date, (y) with respect to Lender Group Expenses outstanding as of the Amendment No. 1 Closing
Date, the Amendment No. 1 Closing Date, and (z) otherwise, the earliest of (A) the last Business Day of the month following
the date on which the applicable costs, expenses, or Lender Group Expenses were first incurred, (B) five (5) Business Days after
the presentment of an invoice therefor (except for Lender Group Expenses invoiced on or prior to the Amendment No. 1 Closing Date,
all of which shall be paid on or prior to the Amendment No. 1 Closing Date), or (C) the date on which demand therefor is made
by Agent or, solely with respect to Lender Group Expenses of Revolving Agent or any Revolving Lender, Revolving Agent, as applicable.
For the avoidance of doubt, any PIK Interest shall be compounded on each interest payment date and added
to the outstanding principal amount of the Term Loan
and, once paid, shall be treated as principal amount of
the Term Loan for all purposes of this Agreement. Following any such increase in
the principal amount of the Term Loan,
interest will accrue on such increased amount.
-84-
(e) Computation.
All interest and fees chargeable under the Loan Documents shall be computed on the basis of a 360 day year, except that interest computed
by reference to the Base Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year), and, in each case, for
the actual number of days elapsed in the period during which the interest or fees accrue. In the event the Base Rate is changed from time
to time hereafter, the rates of interest hereunder based upon the Base Rate automatically and immediately shall be increased or decreased
by an amount equal to such change in the Base Rate.
(f) Intent
to Limit Charges to Maximum Lawful Rate. In no event shall the interest rate or rates payable under this Agreement, plus any other
amounts paid in connection herewith, exceed the highest rate permissible under any law that a court of competent jurisdiction shall, in
a final determination, deem applicable, including, without limitation, the Criminal Code (Canada). Borrowers and the Lender Group,
in executing and delivering this Agreement, intend legally to agree upon the rate or rates of interest and manner of payment stated within
it; provided, that anything contained herein to the contrary notwithstanding, if such rate or rates of interest or manner of payment
exceeds the maximum allowable under applicable law, then, ipso facto, as of the date of this Agreement, Borrowers are and shall be liable
only for the payment of such maximum amount as is allowed by law, and payment received from Borrowers in excess of such legal maximum,
whenever received, shall be applied to reduce the principal balance of the Obligations to the extent of such excess.
(g) Term
SOFR Conforming Changes. In connection with the use or administration of Term SOFR, Agent will have the right to make Conforming Changes
from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such
Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan
Document. Agent will promptly notify Administrative Borrower and the Lenders of the effectiveness of any Conforming Changes in connection
with the use or administration of Term SOFR.
(h) Canadian
Interest Provisions. For the purposes of the Interest Act (Canada) and disclosure thereunder, whenever any interest or any
fee to be paid hereunder or in connection herewith is to be calculated on the basis of a 360-day, 365-day year or 366-day year, the yearly
rate of interest to which the rate used in such calculation is equivalent is the rate so used multiplied by the actual number of days
in the calendar year in which the same is to be ascertained and divided by 360, 365 or 366, as applicable. The rates of interest under
this Agreement are nominal rates, and not effective rates or yields. The principle of deemed reinvestment of interest does not apply to
any interest calculation under this Agreement.
2.7. Crediting
Payments. The receipt of any payment item by Agent or Revolving Agent, as applicable, shall not be considered a payment on account
unless such payment item is a wire transfer of immediately available funds made to Agent's Account or Revolving Agent's Account, as applicable,
or unless and until such payment item is honored when presented for payment. Should any payment item not be honored when presented for
payment, then Borrowers shall be deemed not to have made such payment. Anything to the contrary contained herein notwithstanding, any
payment item shall be deemed received by Agent or Revolving Agent, as applicable, only if it is received into Agent's Account or Revolving
Agent's Account, as applicable, on a Business Day on or before 4:30 p.m. If any payment item is received into Agent's Account or
Revolving Agent's Account, as applicable, on a non-Business Day or after 4:30 p.m. on a Business Day (unless Agent or Revolving Agent,
as applicable, in its sole discretion, elects to credit it on the date received), it shall be deemed to have been received by Agent or
Revolving Agent, as applicable, as of the opening of business on the immediately following Business Day.
-85-
2.8. Designated
Account. Agent and Revolving Agent are each authorized to make Loans under this Agreement based upon instructions received from
anyone purporting to be an Authorized Person. Borrowers agree to establish and maintain the Designated Account with the Designated Account
Bank for the purpose of receiving the proceeds of the Revolving Loans and Protective Advances. Unless otherwise agreed by Agent or Revolving
Agent, as applicable, and Borrowers, any Loan requested by Borrowers and made by Agent or Revolving Agent, as applicable, or the Lenders
hereunder shall be made to the Designated Account.
2.9. [Reserved].
2.10. Fees.
(a) Agent
and Revolving Agent Fees.
(i) Borrowers
shall pay to Agent, for the account of Agent, and for the benefit of the Lenders, where applicable, as and when due and payable under
the terms of the Fee Letter, the fees owing to Agent set forth in the Fee Letter.
(ii) Borrowers
shall pay to Agent, for the account of Revolving Agent, as and when due and payable under the terms of the Revolver Fee Letter, the fees
owing to Revolving Agent set forth in the Revolver Fee Letter.
(b) Unused
Line Fee. Borrowers shall pay to Agent, for the ratable account of the Revolving Lenders, an unused line fee (the "Unused
Line Fee") in an amount equal to 0.50% per annum times the result of, as of each date of determination, (i) the aggregate
amount of the Revolver Commitments, less (ii) the Amendment No. 1 Availability Block Amount, less (iii) the Average Revolver
Usage during the immediately preceding month (or portion thereof), which Unused Line Fee shall be due and payable, in arrears, on the
first day of each month, from and after the Closing Date up to the first day of the month prior to the date on which the Obligations are
paid in full and the Revolver Commitments are terminated and on the date on which the Obligations are paid in full; provided that,
if the foregoing calculation results in a negative number for any month, the Unused Line Fee for such month shall be $0. For the avoidance
of doubt, Revolving Agent will calculate the Unused Line Fee each month.
-86-
2.11. [Reserved].
2.12. SOFR
Option.
(a) Interest
and Interest Payment Dates. In lieu of having interest charged at the rate based upon the Base Rate, Borrowers shall have the option,
subject to Section 2.12(b) below (the "SOFR Option") to have interest on all or a portion of the Revolving
Loans or the Term Loan be charged (whether at the time when made (unless otherwise provided herein), upon conversion from a Base Rate
Loan to a SOFR Loan, or upon continuation of a SOFR Loan as a SOFR Loan) at a rate of interest based upon Term SOFR. Interest on SOFR
Loans shall be payable (in cash, or, solely with
respect to the foregoing clause (i), in cash or PIK Interest, as applicable) on the earliest
of (i) the last Business Day of each month, (ii) the date on which all or any portion of the Obligations are accelerated pursuant
to the terms hereof, or (iii) the date on which this Agreement is terminated pursuant to the terms hereof.
For the avoidance of doubt, any PIK Interest shall
be compounded on each interest payment date and added to the outstanding principal amount of the Term Loan and, once paid, shall be treated
as principal amount of the Term Loan for all purposes of this Agreement. Following any such increase in
the principal amount of the Term Loan, interest will accrue on such increased amount.
On the last day of each applicable Interest Period, unless Borrowers have properly exercised the SOFR Option with respect thereto, the
interest rate applicable to such SOFR Loan automatically shall convert to the rate of interest then applicable to Base Rate Loans of the
same type hereunder. At any time that an Event of Default has occurred and is continuing, at the written election of Agent, Revolving
Agent (solely in the case of Revolving Loans), or the Required Lenders, or the Required Revolving Lenders (solely in the case of Revolving
Loans), Borrowers no longer shall have the option to request that Revolving Loans or any portion of the Term Loan bear interest at a rate
based upon Term SOFR.
(b) SOFR
Election.
(i) Borrowers
may, at any time and from time to time, so long as Borrowers have not received a notice from Agent or Revolving Agent (solely in the case
of Revolving Loans) (which notice Agent or Revolving Agent, as applicable, may elect to give or not give in its discretion unless Agent
or Revolving Agent, as applicable, is directed to give such notice by Required Lenders or the Required Revolving Lenders (solely in the
case of Revolving Loans), in which case, it shall give the notice to Borrowers and with respect to Revolving Loans, the Revolving Agent),
after the occurrence and during the continuance of an Event of Default, to terminate the right of Borrowers to exercise the SOFR Option
during the continuance of such Event of Default, elect to exercise the SOFR Option by notifying Agent or Revolving Agent (with, if in
with respect to Revolving Loans, a copy of such notice to the Revolving Agent) prior to 2:00 p.m. at least three U.S. Government
Securities Business Days prior to the commencement of the proposed Interest Period (the "SOFR Deadline"). Notice of Borrowers'
election of the SOFR Option for a permitted portion of the Revolving Loans or the Term Loan and an Interest Period pursuant to this Section shall
be made by delivery to Agent or Revolving Agent of a SOFR Notice (and with respect to Revolving Loans, the Revolving Agent) received by
Agent or Revolving Agent, as applicable, before the SOFR Deadline. Promptly upon its receipt of each such SOFR Notice, Agent or Revolving
Agent, as applicable, shall provide a notice thereof to each of the affected Lenders.
(ii) Each
SOFR Notice shall be irrevocable and binding on Borrowers. In connection with each SOFR Loan, each Borrower shall indemnify, defend, and
hold Agent, Revolving Agent and the Lenders harmless against any loss, cost, or expense actually incurred by Agent, Revolving Agent or
any Lender as a result of (A) the payment or required assignment of any principal of any SOFR Loan other than on the last day of
an Interest Period applicable thereto (including as a result of an Event of Default), (B) the conversion of any SOFR Loan other than
on the last day of the Interest Period applicable thereto, or (C) the failure to borrow, convert, continue or prepay any SOFR Loan
on the date specified in any SOFR Notice delivered pursuant hereto (such losses, costs, or expenses, "Funding Losses").
-87-
(iii) A
certificate of Agent, Revolving Agent, or a Lender delivered to Borrowers setting forth in reasonable detail any amount or amounts that
Agent, Revolving Agent, or such Lender is entitled to receive pursuant to this Section 2.12 shall be conclusive absent manifest
error. Borrowers shall pay such amount to Agent, Revolving Agent or the Lender, as applicable, within 30 days of the date of its receipt
of such certificate. If a payment of a SOFR Loan on a day other than the last day of the applicable Interest Period would result in a
Funding Loss, Agent or Revolving Agent, as applicable, may, in its sole discretion at the request of Borrowers but with Revolving Agent's
consent with respect to Revolving Loans, hold the amount of such payment as cash collateral in support of the Obligations until the last
day of such Interest Period and apply such amounts to the payment of the applicable SOFR Loan on such last day of such Interest Period,
it being agreed that Agent or Revolving Agent, as applicable, has no obligation to so defer the application of payments to any SOFR Loan
and that, in the event that Agent or Revolving Agent, as applicable, does not defer such application, Borrowers shall be obligated to
pay any resulting Funding Losses.
(iv) Unless
Agent and Revolving Agent, in their sole discretion, each agrees otherwise, Borrowers shall have not more than five SOFR Loans in effect
at any given time. Borrowers may only exercise the SOFR Option for proposed SOFR Loans of at least $1,000,000.
(c) Conversion;
Prepayment. Borrowers may convert SOFR Loans to Base Rate Loans or prepay SOFR Loans at any time; provided, that in the event
that SOFR Loans are converted or prepaid on any date that is not the last day of the Interest Period applicable thereto, including as
a result of any prepayment through the required application by Agent or Revolving Agent, as applicable, of any payments or proceeds of
Collateral in accordance with Section 2.4(b) or for any other reason, including early termination of the term of this
Agreement or acceleration of all or any portion of the Obligations pursuant to the terms hereof, each Borrower shall indemnify, defend,
and hold Agent, Revolving Agent,and the Lenders and their Participants harmless against any and all Funding Losses in accordance with
Section 2.12 (b)(ii).
(d) Special
Provisions Applicable to Term SOFR.
(i) Term
SOFR may be adjusted by Agent with respect to any Lender on a prospective basis to take into account any additional or increased costs
(other than Taxes which shall be governed by Section 16), in each case, due to changes in applicable law occurring subsequent
to the commencement of the then applicable Interest Period, or pursuant to any Change in Law or change in the reserve requirements imposed
by the Board of Governors, which additional or increased costs would increase the cost of funding or maintaining loans bearing interest
at Term SOFR. In any such event, the affected Lender shall give Borrowers and Agent notice of such a determination and adjustment and
Agent promptly shall transmit the notice to each other Lender and, upon its receipt of the notice from the affected Lender, Borrowers
may, by notice to such affected Lender (A) require such Lender to furnish to Borrowers a statement setting forth in reasonable detail
the basis for adjusting Term SOFR and the method for determining the amount of such adjustment, or (B) repay the SOFR Loans or Base
Rate Loans determined with reference to Term SOFR, in each case, of such Lender with respect to which such adjustment is made (together
with any amounts due under Section 2.12(b)(ii)).
-88-
(ii) Subject
to the provisions set forth in Section 2.12(d)(iii) below, in the event that any change in market conditions or any Change
in Law shall at any time after the date hereof, in the reasonable opinion of any Lender, make it unlawful or impractical for such Lender
to fund or maintain SOFR Loans (or Base Rate Loans determined with reference to Term SOFR) or to continue such funding or maintaining,
or to determine or charge interest rates at the Term SOFR Reference Rate, Term SOFR or SOFR, such Lender shall give notice of such changed
circumstances to Agent or Revolving Agent, as applicable, and Borrowers and Agent or Revolving Agent, as applicable, promptly shall transmit
the notice to each other Lender and (y)(i) in the case of any SOFR Loans of such Lender that are outstanding, such SOFR Loans of
such Lender will be deemed to have been converted Base Rate Loans on the last day of the Interest Period of such SOFR Loans, if such Lender
may lawfully continue to maintain such SOFR Loans, or immediately, if such Lender may not lawfully continue to maintain such SOFR Loans,
and thereafter interest upon the SOFR Loans of such Lender thereafter shall accrue interest at the rate then applicable to Base Rate Loans
(and if applicable, without reference to the Term SOFR component thereof) and (ii) in the case of any such Base Rate Loans of such
Lender that are outstanding and that are determined with reference to Term SOFR, interest upon the Base Rate Loans of such Lender after
the date specified in such Lender's notice shall accrue interest at the rate then applicable to Base Rate Loans without reference to the
Term SOFR component thereof and (z) Borrowers shall not be entitled to elect the SOFR Option and Base Rate Loans shall not be determined
with reference to the Term SOFR component thereof, in each case, until such Lender determines that it would no longer be unlawful or impractical
to do so.
(iii) Benchmark
Replacement Setting.
(A) Benchmark
Replacement. Notwithstanding anything to the contrary herein or in any other Loan Document, upon the occurrence of a Benchmark Transition
Event, Agent and Administrative Borrower may amend this Agreement to replace the then-current Benchmark with a Benchmark Replacement.
Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. on the fifth (5th) Business Day
after Agent has posted such proposed amendment to all affected Lenders and Administrative Borrower so long as Agent has not received,
by such time, written notice of objection to such amendment from Lenders comprising the Required Lenders. No replacement of a Benchmark
with a Benchmark Replacement pursuant to this Section 2.12(d)(iii) will occur prior to the applicable Benchmark Transition
Start Date.
(B) Benchmark
Replacement Conforming Changes. In connection with the use, administration, adoption or implementation of a Benchmark Replacement,
Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any
other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of
any other party to this Agreement or any other Loan Document.
-89-
(C) Notices;
Standards for Decisions and Determinations. Agent will promptly notify Administrative Borrower and the Lenders of (1) the implementation
of any Benchmark Replacement and (2) the effectiveness of any Conforming Changes in connection with the use, administration, adoption
or implementation of a Benchmark Replacement. Agent will notify Administrative Borrower of (x) the removal or reinstatement of any
tenor of a Benchmark pursuant to Section 2.12(d)(iii)(D) and (y) the commencement of any Benchmark Unavailability
Period. Any determination, decision or election that may be made by Agent or, if applicable, any Lender (or group of Lenders) pursuant
to this Section 2.12(d)(iii), including any determination with respect to a tenor, rate or adjustment or of the occurrence
or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will
be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party
to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.12(d)(iii).
(D) Unavailability
of Tenor of Benchmark. Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection
with the implementation of a Benchmark Replacement), (1) if the then-current Benchmark is a term rate (including the Term SOFR Reference
Rate) and either (I) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate
from time to time as selected by Agent in its reasonable discretion or (II) the regulatory supervisor for the administrator of such
Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not
be representative, then Agent may modify the definition of "Interest Period" (or any similar or analogous definition) for any
Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (2) if a tenor that was removed
pursuant to clause (1) above either (I) is subsequently displayed on a screen or information service for a Benchmark (including
a Benchmark Replacement) or (II) is not, or is no longer, subject to an announcement that it is not or will not be representative
for a Benchmark (including a Benchmark Replacement), then Agent may modify the definition of "Interest Period" (or any similar
or analogous definition) for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(E) Benchmark
Unavailability Period. Upon Administrative Borrower's receipt of notice of the commencement of a Benchmark Unavailability Period,
(1) Administrative Borrower may revoke any pending request for a borrowing of, conversion to or continuation of SOFR Loans to be
made, converted or continued during any Benchmark Unavailability Period and, failing that, Administrative Borrower will be deemed to have
converted any such request into a request for a borrowing of or conversion to Base Rate Loans and (2) any outstanding affected SOFR
Loans will be deemed to have been converted to Base Rate Loans at the end of the applicable Interest Period. During any Benchmark Unavailability
Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of the Base Rate based upon
the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of the Base Rate.
-90-
(e) No
Requirement of Matched Funding. Anything to the contrary contained herein notwithstanding, neither Agent, Revolving Agent, nor any
Lender, nor any of their Participants, is required actually to match fund any Obligation as to which interest accrues at Term SOFR or
the Term SOFR Reference Rate.
2.13. Capital
Requirements.
(a) If,
after the date hereof, (i) any Lender determines that (A) any Change in Law regarding capital, liquidity or reserve requirements
for banks or bank holding companies, or (B) such Lender, or their respective parent bank holding companies, with any guideline, request
or directive of any Governmental Authority regarding capital adequacy or liquidity requirements (whether or not having the force of law),
has the effect of reducing the return on such Lender's, or such holding companies' capital or liquidity as a consequence of such Lender's
commitments, Loans, participations or other obligations hereunder to a level below that which such Lender or such holding companies could
have achieved but for such Change in Law or compliance (taking into consideration such Lender's or such holding companies' then existing
policies with respect to capital adequacy or liquidity requirements and assuming the full utilization of such entity's capital) by any
amount deemed by such Lender to be material; or (ii) any Recipient determines that a Change in Law shall subject such Recipient to
Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (ii) through (v) of the definition of Excluded
Taxes and (C) Connection Income Taxes) on its Obligations, or its deposits, reserves, other liabilities or capital attributable thereto
that result in an increase in the cost to such Recipient of making, converting to, continuing or maintaining any Loan or of maintaining
its obligation to make any such Loan, or to increase the cost to such Recipient of participating in, issuing or maintaining any Obligation,
or to reduce the amount of any sum received or receivable by such Recipient hereunder (whether of principal, interest or any other amount),
then such Lender may notify Borrowers and Agent thereof. Following receipt of such notice, Borrowers agree to pay such Lender or Recipient
on demand such additional amount or amounts as will compensate such Lender or Recipient, as the case may be, for such additional costs
incurred or reduction suffered (including the amount of such reduction of return of capital as and when such reduction is determined),
payable within 30 days after presentation by such Lender of a statement in the amount and setting forth in reasonable detail such Lender's
calculation thereof and the assumptions upon which such calculation was based (which statement shall be deemed true and correct absent
manifest error). In determining such amount, such Lender may use any reasonable averaging and attribution methods. Failure or delay on
the part of any Lender to demand compensation pursuant to this Section shall not constitute a waiver of such Lender's right to demand
such compensation; provided, that Borrowers shall not be required to compensate a Lender pursuant to this Section for any
reductions in return incurred more than 180 days prior to the date that such Lender notifies Borrowers of such Change in Law giving rise
to such reductions and of such Lender's intention to claim compensation therefor; provided further, that if such claim arises by
reason of the Change in Law that is retroactive, then the 180-day period referred to above shall be extended to include the period of
retroactive effect thereof.
-91-
(b) If
any Lender requests additional or increased costs referred to in Section 2.12(d)(i) or amounts under Section 2.13(a) or
sends a notice under Section 2.12(d)(ii) relative to changed circumstances (such Lender, an "Affected Lender"),
then, at the request of Administrative Borrower, such Affected Lender shall use reasonable efforts to promptly designate a different one
of its lending offices or to assign its rights and obligations hereunder to another of its offices or branches, if (i) in the reasonable
judgment of such Affected Lender, such designation or assignment would eliminate or reduce amounts payable pursuant to Section 2.12(d)(i) or
Section 2.13(a), as applicable, or would eliminate the illegality or impracticality of funding or maintaining SOFR Loans (or
Base Rate Loans determined with reference to Term SOFR), and (ii) in the reasonable judgment of such Affected Lender, such designation
or assignment would not subject it to any material unreimbursed cost or expense and would not otherwise be materially disadvantageous
to it. Borrowers agree to pay all reasonable out-of-pocket costs and expenses incurred by such Affected Lender in connection with any
such designation or assignment. If, after such reasonable efforts, such Affected Lender does not so designate a different one of its lending
offices or assign its rights to another of its offices or branches so as to eliminate Borrowers' obligation to pay any future amounts
to such Affected Lender pursuant to Section 2.12(d)(i) or Section 2.13(a), as applicable, or to enable Borrowers
to obtain SOFR Loans (or Base Rate Loans determined with reference to Term SOFR), then Borrowers (without prejudice to any amounts then
due to such Affected Lender under Section 2.12(d)(i) or Section 2.13(a), as applicable) may, unless prior
to the effective date of any such assignment the Affected Lender withdraws its request for such additional amounts under Section 2.12(d)(i) or
Section 2.13(a), as applicable, or indicates that it is no longer unlawful or impractical to fund or maintain SOFR Loans (or
Base Rate Loans determined with reference to Term SOFR), may designate a substitute a Lender or prospective Lender, in each case, reasonably
acceptable to Agent or solely with respect to the Revolving Loans, Revolving Agent, to purchase the Obligations owed to such Affected
Lender and such Affected Lender's commitments hereunder (a "Replacement Lender"), and if such Replacement Lender agrees
to such purchase, such Affected Lender shall assign to the Replacement Lender its Obligations and commitments, and upon such purchase
by the Replacement Lender, which such Replacement Lender shall be deemed to be a "Lender" for purposes of this Agreement and
such Affected Lender shall cease to be a "Lender" for purposes of this Agreement.
(c) Notwithstanding
anything herein to the contrary, the protection of Sections 2.12(d) and 2.13 shall be available to each Lender regardless
of any possible contention of the invalidity or inapplicability of the law, rule, regulation, judicial ruling, judgment, guideline, treaty
or other change or condition which shall have occurred or been imposed, so long as it shall be customary for issuing banks or lenders
affected thereby to comply therewith. Notwithstanding any other provision herein, no Lender shall demand compensation pursuant to this
Section 2.13 if it shall not at the time be the general policy or practice of such Lender (as the case may be) to demand such
compensation in similar circumstances under comparable provisions of other credit agreements, if any.
2.14. [Reserved].
2.15. Joint
and Several Liability of Borrowers.
(a) Each
Borrower is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations
to be provided by the Lender Group under this Agreement, for the mutual benefit, directly and indirectly, of each Borrower and in consideration
of the undertakings of the other Borrowers to accept joint and several liability for the Obligations.
-92-
(b) Each
Borrower, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint
and several liability with the other Borrowers, with respect to the payment and performance of all of the Obligations (including any Obligations
arising under this Section 2.15), it being the intention of the parties hereto that all the Obligations shall be the joint
and several obligations of each Borrower without preferences or distinction among them. Accordingly, each Borrower hereby waives any and
all suretyship defenses that would otherwise be available to such Borrower under applicable law.
(c) If
and to the extent that any Borrower shall fail to make any payment with respect to any of the Obligations as and when due, whether upon
maturity, acceleration, or otherwise, or to perform any of the Obligations in accordance with the terms thereof, then in each such event
the other Borrowers will make such payment with respect to, or perform, such Obligations until such time as all of the Obligations are
paid in full, and without the need for demand, protest, or any other notice or formality.
(d) The
Obligations of each Borrower under the provisions of this Section 2.15 constitute the absolute and unconditional, full recourse
Obligations of each Borrower enforceable against each Borrower to the full extent of its properties and assets, irrespective of the validity,
regularity or enforceability of the provisions of this Agreement (other than this Section 2.15(d)) or any other circumstances
whatsoever.
-93-
(e) Without
limiting the generality of the foregoing and except as otherwise expressly provided in this Agreement, each Borrower hereby waives presentments,
demands for performance, protests and notices, including notices of acceptance of its joint and several liability, notice of any Revolving
Loans, any portion of the Term Loan, notice of the occurrence of any Default, Event of Default, notices of nonperformance, notices of
protest, notices of dishonor, notices of acceptance of this Agreement, notices of the existence, creation, or incurring of new or additional
Obligations or other financial accommodations or of any demand for any payment under this Agreement, notice of any action at any time
taken or omitted by Agent, Revolving Agent or Lenders under or in respect of any of the Obligations, any right to proceed against any
other Borrower or any other Person, to proceed against or exhaust any security held from any other Borrower or any other Person, to protect,
secure, perfect, or insure any security interest or Lien on any property subject thereto or exhaust any right to take any action against
any other Borrower, any other Person, or any collateral, to pursue any other remedy in any member of the Lender Group's or any Bank Product
Provider's power whatsoever, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable
law, all demands, notices and other formalities of every kind in connection with this Agreement (except as otherwise provided in this
Agreement), any right to assert against any member of the Lender Group or any Bank Product Provider, any defense (legal or equitable),
set-off, counterclaim, or claim which each Borrower may now or at any time hereafter have against any other Borrower or any other party
liable to any member of the Lender Group or any Bank Product Provider, any defense, set-off, counterclaim, or claim, of any kind or nature,
arising directly or indirectly from the present or future lack of perfection, sufficiency, validity, or enforceability of the Obligations
or any security therefor, and any right or defense arising by reason of any claim or defense based upon an election of remedies by any
member of the Lender Group or any Bank Product Provider including any defense based upon an impairment or elimination of such Borrower's
rights of subrogation, reimbursement, contribution, or indemnity of such Borrower against any other Borrower. Without limiting the generality
of the foregoing, each Borrower hereby assents to, and waives notice of, any extension or postponement of the time for the payment of
any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver,
consent or other action or acquiescence by Agent, Revolving Agent or Lenders at any time or times in respect of any default by any Borrower
in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever
by Agent, Revolving Agent or Lenders in respect of any of the Obligations, and the taking, addition, substitution or release, in whole
or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in
part, of any Borrower. Without limiting the generality of the foregoing, each Borrower assents to any other action or delay in acting
or failure to act on the part of Agent, Revolving Agent or Lender with respect to the failure by any Borrower to comply with any of its
respective Obligations, including any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with
applicable laws or regulations thereunder, which might, but for the provisions of this Section 2.15 afford grounds for terminating,
discharging or relieving any Borrower, in whole or in part, from any of its Obligations under this Section 2.15, it being
the intention of each Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the Obligations of each Borrower
under this Section 2.15 shall not be discharged except by performance and then only to the extent of such performance. The
Obligations of each Borrower under this Section 2.15 shall not be diminished or rendered unenforceable by any winding up,
reorganization, arrangement, liquidation, reconstruction or similar proceeding with respect to any other Borrower or Agent, Revolving
Agent or Lender. Each of the Borrowers waives, to the fullest extent permitted by law, the benefit of any statute of limitations affecting
its liability hereunder or the enforcement hereof. Any payment by any Borrower or other circumstance which operates to toll any statute
of limitations as to any Borrower shall operate to toll the statute of limitations as to each of the Borrowers. Each of the Borrowers
waives any defense based on or arising out of any defense of any Borrower or any other Person, other than payment of the Obligations to
the extent of such payment, based on or arising out of the disability of any Borrower or any other Person, or the validity, legality,
or unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability of any Borrower
other than payment of the Obligations to the extent of such payment. Agent may, at the election of the Required Lenders, foreclose upon
any Collateral held by Agent by one or more judicial or nonjudicial sales or other dispositions, whether or not every aspect of any such
sale is commercially reasonable or otherwise fails to comply with applicable law or may exercise any other right or remedy Agent, any
other member of the Lender Group, or any Bank Product Provider may have against any Borrower or any other Person, or any security, in
each case, without affecting or impairing in any way the liability of any of the Borrowers hereunder except to the extent the Obligations
have been paid.
(f) Each
Borrower represents and warrants to Agent, Revolving Agent and Lenders that such Borrower is currently informed of the financial condition
of Borrowers and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations.
Each Borrower further represents and warrants to Agent, Revolving Agent and Lenders that such Borrower has read and understands the terms
and conditions of the Loan Documents. Each Borrower hereby covenants that such Borrower will continue to keep informed of Borrowers' financial
condition and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Obligations.
-94-
(g) The
provisions of this Section 2.15 are made for the benefit of Agent, Revolving Agent, each member of the Lender Group, each
Bank Product Provider, and their respective successors and assigns, and may be enforced by it or them from time to time against any or
all Borrowers as often as occasion therefor may arise and without requirement on the part of Agent, Revolving Agent, any member of the
Lender Group, any Bank Product Provider, or any of their successors or assigns first to marshal any of its or their claims or to exercise
any of its or their rights against any Borrower or to exhaust any remedies available to it or them against any Borrower 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 2.15 shall remain in effect until all of the Obligations shall have been paid in full or otherwise fully satisfied.
If at any time, any payment, or any part thereof, made in respect of any of the Obligations, is rescinded or must otherwise be restored
or returned by Agent, Revolving Agent or any Lender upon the insolvency, bankruptcy or reorganization of any Borrower, or otherwise, the
provisions of this Section 2.15 will forthwith be reinstated in effect, as though such payment had not been made.
(h) Each
Borrower hereby agrees that it will not enforce any of its rights that arise from the existence, payment, performance or enforcement of
the provisions of this Section 2.15, including rights of subrogation, reimbursement, exoneration, contribution or indemnification
and any right to participate in any claim or remedy of Agent, Revolving Agent, any other member of the Lender Group, or any Bank Product
Provider against any Borrower, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including
the right to take or receive from any Borrower, directly or indirectly, in cash or other property or by set-off or in any other manner,
payment or security solely on account of such claim, remedy or right, unless and 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 Agent, Revolving Agent
or any member of the Lender Group hereunder or under any of the Bank Product Agreements 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 and, in the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar
proceeding under the laws of any jurisdiction relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all
such Obligations shall be paid in full in cash before any payment or distribution of any character, whether in cash, securities or other
property, shall be made to any other Borrower therefor. If any amount shall be paid to any Borrower in violation of the immediately preceding
sentence, such amount shall be held in trust for the benefit of Agent, for the benefit of Revolving Agent, for the benefit of the Lender
Group and the Bank Product Providers, and shall forthwith be paid to Agent to be credited and applied to the Obligations and all other
amounts payable under this Agreement, whether matured or unmatured, in accordance with the terms of this Agreement, or to be held as Collateral
for any Obligations or other amounts payable under this Agreement thereafter arising. Notwithstanding anything to the contrary contained
in this Agreement, no Borrower may exercise any rights of subrogation, contribution, indemnity, reimbursement or other similar rights
against, and may not proceed or seek recourse against or with respect to any property or asset of, any other Borrower (the "Foreclosed
Borrower"), including after payment in full of the Obligations, if all or any portion of the Obligations have been satisfied
in connection with an exercise of remedies in respect of the Equity Interests of such Foreclosed Borrower whether pursuant to this Agreement
or otherwise.
-95-
3. CONDITIONS; TERM OF AGREEMENT.
3.1. Conditions
Precedent to the Initial Extension of Credit. The obligation of each Lender to make the initial extensions of credit provided
for hereunder is subject to the fulfillment, to the satisfaction of Agent, Revolving Agent and each Lender, of each of the conditions
precedent set forth on Schedule 3.1 to this Agreement (the making of such initial extensions of credit by a Lender being conclusively
deemed to be its satisfaction or waiver of the conditions precedent).
3.2. Conditions
Precedent to all Extensions of Credit. The obligation of each Revolving Lender to make any Revolving Loans hereunder (or to extend
any credit hereunder) at any time shall be subject to the following conditions precedent:
(a) receipt
by Agent and Revolving Agent (in the case of Revolving Loans) of a Notice of Borrowing;
(b) the
representations and warranties of each Loan Party or its Subsidiaries contained in this Agreement or in the other Loan Documents shall
be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and
warranties that already are qualified or modified by materiality in the text thereof) on and as of the date of such extension of credit,
as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date,
in which case such representations and warranties shall be true and correct in all material respects (except that such materiality qualifier
shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof)
as of such earlier date);
(c) no
Default or Event of Default shall have occurred and be continuing on the date of such extension of credit, nor shall either result from
the making thereof;
(d) both
at the time of and after the making of such requested Revolving Loans, Available Cash shall not exceed $55,000,000;
(e) the
requested Borrowing will not exceed the Availability on such Funding Date; and
(f) no
Overadvance exists or will exist after the making of such requested Revolving Loans.
3.3. Maturity.
This Agreement shall continue in full force and effect for a term ending on the Maturity Date (unless terminated earlier in accordance
with the terms hereof).
3.4. Effect
of Maturity. On the Maturity Date, all commitments of the Lender Group to provide additional credit hereunder shall automatically
be terminated and all of the Obligations (other than Hedge Obligations) immediately shall become due and payable without notice or demand
and Borrowers shall be required to repay all of the Obligations (other than Hedge Obligations) in full. No termination of the obligations
of the Lender Group (other than payment in full of the Obligations and termination of the Commitments) shall relieve or discharge any
Loan Party of its duties, obligations, or covenants hereunder or under any other Loan Document and Agent's Liens in the Collateral shall
continue to secure the Obligations and shall remain in effect until all Obligations have been paid in full and the Commitments have been
terminated. When all of the Obligations have been paid in full and the Lender Group's obligations to provide additional credit under the
Loan Documents have been terminated irrevocably, Agent will, at Borrowers' sole expense, execute and deliver any termination statements,
lien releases, discharges of security interests, and other similar discharge or release documents (and, if applicable, in recordable form)
as are reasonably necessary to release, as of record, Agent's Liens and all notices of security interests and liens previously filed by
Agent.
-96-
3.5. Early
Termination by Borrowers. Subject to the Fee Letter and the Revolver Fee Letter, Borrowers have the option, at any time upon ten
(10) Business Days (or such shorter period as may be agreed by Agent) prior written notice to Agent and Revolving Agent, to repay
all of the Obligations in full and terminate this Agreement; provided, that any such notice may state that such notice is conditioned
upon the occurrence or non-occurrence of any transaction or the receipt of proceeds to be used for such payment, in each case specified
therein (including the effectiveness of other credit facilities), in which case such notice may be revoked by the Administrative Borrower
(by written notice to Agent and Revolving Agent on or prior to the specified effective date) if such condition is not satisfied.
3.6. Post-Closing
Covenants Each Borrower covenants and agrees to fulfill the obligations set forth on Schedule 3.6 to this Agreement (the
failure by any Borrower to so perform or cause to be performed such obligations as and when required by the terms thereof (unless such
date is extended, in writing, by Agent, which Agent may do without obtaining the consent of the other members of the Lender Group), shall
constitute an Event of Default).
4. REPRESENTATIONS AND WARRANTIES.
In order to induce the Lender
Group to enter into this Agreement, each Borrower makes the following representations and warranties to the Lender Group which shall be
true, correct, and complete, in all material respects (except that such materiality qualifier shall not be applicable to any representations
and warranties that already are qualified or modified by materiality in the text thereof), as of the Closing Date, and shall be true,
correct, and complete, in all material respects (except that such materiality qualifier shall not be applicable to any representations
and warranties that already are qualified or modified by materiality in the text thereof), as of the date of the making of each Loan (or
any other extension of credit hereunder, other than the continuation of, or conversion into, a Base Rate Loan or a SOFR Loan, as applicable)
made thereafter, as though made on and as of the date of such Loan (or any other extension of credit) or delivery (except to the extent
that such representations and warranties relate solely to an earlier date, in which case such representations and warranties shall be
true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties
that already are qualified or modified by materiality in the text thereof) as of such earlier date), and such representations and warranties
shall survive the execution and delivery of this Agreement:
4.1. Due
Organization and Qualification; Subsidiaries.
(a) Each
Loan Party and each of its Subsidiaries (i) is duly organized and existing and in good standing (where applicable) under the laws
of the jurisdiction of its incorporation, organization or formation, (ii) is qualified to do business in any state where the failure
to be so qualified could reasonably be expected to result in a Material Adverse Effect, and (iii) has all requisite power and authority
to own and operate its properties, to carry on its business as now conducted and as proposed to be conducted, to enter into the Loan Documents
to which it is a party and to carry out the transactions contemplated thereby; provided that in respect of any Foreign Subsidiary,
this representation shall be subject to the Legal Reservations and Perfection Requirements (in each case, as applicable).
-97-
(b) Set
forth on Schedule 4.1(b) to this Agreement (as such Schedule may be updated from time to time to reflect changes resulting
from transactions permitted under this Agreement) is a complete and accurate description of the authorized Equity Interests of each Subsidiary
that is a Loan Party, by class, and, as of the Closing Date, a description of the number of shares of each such class that are issued
and outstanding.
(c) Set
forth on Schedule 4.1(c) to this Agreement (as such Schedule may be updated from time to time to reflect changes
resulting from transactions permitted under this Agreement), is a complete and accurate list of the Loan Parties' direct and indirect
Subsidiaries, showing: (i) the number of shares of each class of Equity Interests authorized for each of such Subsidiaries, and (ii) the
number and the percentage of the outstanding shares of each such class owned directly or indirectly by Comtech. All of the outstanding
Equity Interests of each such Subsidiary has been validly issued and is fully paid and non-assessable.
(d) Except
as set forth on Schedule 4.1(d) to this Agreement, there are no subscriptions, options, warrants, or calls relating to any
shares of any Loan Party's or any of its Subsidiaries' Equity Interests, including any right of conversion or exchange under any outstanding
security or other instrument. Except as set forth on Schedule 4.1(d) to this Agreement, no Loan Party is subject to any obligation
(contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its Equity Interests or any security convertible
into or exchangeable for any of its Equity Interests.
4.2. Due
Authorization; No Conflict.
(a) As
to each Loan Party, the execution, delivery, and performance by such Loan Party of the Loan Documents to which it is a party have been
duly authorized by all necessary action on the part of such Loan Party.
(b) As
to each Loan Party, the execution, delivery, and performance by such Loan Party of the Loan Documents to which it is a party do not and
will not (i) violate any material provision of federal, state, provincial, territorial or local law or regulation applicable to any
Loan Party or its Subsidiaries, the Governing Documents of any Loan Party or its Subsidiaries, or any order, judgment, or decree of any
court or other Governmental Authority binding on any Loan Party or its Subsidiaries; provided that in respect of any Foreign Subsidiary,
this representation shall be subject to the Legal Reservations (as applicable), (ii) conflict with, result in a breach of, or constitute
(with due notice or lapse of time or both) a default under any material agreement (including any Material Contract) of any Loan Party
or its Subsidiaries where any such conflict, breach or default could individually or in the aggregate reasonably be expected to have a
Material Adverse Effect, (iii) result in or require the creation or imposition of any Lien of any nature whatsoever upon any assets
of any Loan Party, other than Permitted Liens, or (iv) require any approval of any holder of Equity Interests of a Loan Party or
any approval or consent of any Person under any material agreement (including any Material Contract) of any Loan Party, other than consents
or approvals that have been obtained and that are still in force and effect and except, in the case of material agreements (including
Material Contracts), for consents or approvals, the failure to obtain could not individually or in the aggregate reasonably be expected
to cause a Material Adverse Effect.
-98-
4.3. Governmental
Consents. The execution, delivery, and performance by each Loan Party of the Loan Documents to which such Loan Party is a party
and the consummation of the transactions contemplated by the Loan Documents do not and will not require any registration with, consent,
or approval of, or notice to, or other action with or by, any Governmental Authority, other than registrations, consents, approvals, notices,
or other actions that have been obtained and that are still in force and effect and except for filings and recordings with respect to
the Collateral to be made, or otherwise delivered to Agent for filing or recordation, as of the Closing Date; provided that in
respect of any Foreign Subsidiary, this representation shall be subject to the Legal Reservations and Perfection Requirements (in each
case, as applicable).
4.4. Binding
Obligations; Perfected Liens.
(a) Each
Loan Document has been duly executed and delivered by each Loan Party that is a party thereto and is the legally valid and binding obligation
of such Loan Party, enforceable against such Loan Party in accordance with its respective terms, except as enforcement may be limited
by equitable principles or by bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to or limiting creditors' rights
generally; provided that in respect of any Foreign Subsidiary, this representation shall be subject to the Legal Reservations and
Perfection Requirements (in each case, as applicable).
(b) Agent's
Liens are validly created, perfected (other than (i) in respect of motor vehicles that are subject to a certificate of title, (ii) money,
(iii) letter-of-credit rights (other than supporting obligations), (iv) commercial tort claims (other than those that, by the
terms of the Guaranty and Security Agreement, are required to be perfected), and (v) any Deposit Accounts and Securities Accounts
not subject to a Control Agreement as permitted by Section 7(k)(iv) of the Guaranty and Security Agreement and Section 7(k)(iv) of
the Canadian Guarantee and Security Agreement, and, subject only to the filing of financing statements, the recordation of the Copyright
Security Agreement, if any, and the recordation of the Mortgages, if any, in each case, in the appropriate filing offices), and first
priority Liens, subject only to Permitted Liens which are non-consensual Permitted Liens, permitted purchase money Liens, or the interests
of lessors under Capital Leases; provided that in respect of any Foreign Subsidiary, this representation shall be subject to the
Legal Reservations and Perfection Requirements (in each case, as applicable).
4.5. Title
to Assets; No Encumbrances. Each of the Loan Parties and its Subsidiaries has (a) good, sufficient and legal title to (in
the case of fee interests in Real Property), (b) valid leasehold interests in (in the case of leasehold interests in real or personal
property), and (c) good and marketable title to (in the case of all other personal property), all of their respective assets reflected
in their most recent financial statements delivered pursuant to Section 5.1, in each case except for assets disposed of since
the date of such financial statements to the extent permitted hereby; provided that in respect of any Foreign Subsidiary, this
representation shall be subject to the Legal Reservations and Perfection Requirements (in each case, as applicable). All of such assets
are free and clear of Liens except for Permitted Liens.
-99-
4.6. Litigation.
(a) There
are no actions, suits, or proceedings pending or, to the knowledge of any Loan Party after due inquiry, threatened in writing against
a Loan Party or any of its Subsidiaries that either individually or in the aggregate could reasonably be expected to result in a Material
Adverse Effect.
(b) Schedule 4.6(b) to
this Agreement sets forth a complete and accurate description of each of the actions, suits, or proceedings with asserted liabilities
in excess of, or that could reasonably be expected to result in liabilities in excess of, $5,000,000 that, as of the Closing Date, is
pending or, to the knowledge of any Loan Party after due inquiry, threatened against a Loan Party or any of its Subsidiaries.
4.7. Compliance
with Laws. No Loan Party nor any of its Subsidiaries (a) is in violation of any applicable laws, rules, regulations, executive
orders, or codes (including Environmental Laws) that, individually or in the aggregate, could reasonably be expected to result in a Material
Adverse Effect, or (b) is subject to or in default with respect to any final judgments, writs, injunctions, decrees, rules or
regulations of any court or any federal, state, provincial, territorial, municipal or other governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, that, individually or in the aggregate, could reasonably be expected to result
in a Material Adverse Effect.
4.8. No
Material Adverse Effect. All financial statements relating to the Loan Parties and their Subsidiaries that have been delivered
by Borrowers to Agent have been prepared in accordance with GAAP (except, in the case of unaudited financial statements, for the lack
of footnotes and being subject to year-end audit adjustments) and present fairly in all material respects, the Loan Parties' and their
Subsidiaries' consolidated financial condition as of the date thereof and results of operations for the period then ended. Since July 31,
2023, no event, circumstance, or change has occurred that has or could reasonably be expected to result in a Material Adverse Effect.
4.9. Solvency.
(a) Each
Borrower is, and the Loan Parties taken as a whole are, Solvent.
(b) 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.
-100-
4.10. Employee
Benefits.
(a) Except
as set forth on Schedule 4.10, no Loan Party, none of their Subsidiaries, nor any of their ERISA Affiliates maintains or contributes
to any Benefit Plan, Canadian Pension Plan or Canadian Defined Benefit Pension Plan.
(b) Each
Loan Party and each of the ERISA Affiliates has complied with ERISA, the IRC and all applicable laws regarding each Employee Benefit Plan,
except as would not reasonably be expected to result in a Material Adverse Effect.
(c) Each
Employee Benefit Plan is, and has been, maintained in compliance with ERISA, the IRC, all applicable laws and the terms of each such Employee
Benefit Plan, except as would not reasonably be expected to result in a Material Adverse Effect.
(d) Each
Employee Benefit Plan that is intended to qualify under Section 401(a) of the IRC has received a favorable determination letter
from the Internal Revenue Service or is entitled to rely on an opinion letter provided under a volume submitted program. To the knowledge
of each Loan Party, nothing has occurred which would prevent, or cause the loss of, such qualification.
(e) No
liability to the PBGC (other than for the payment of current premiums which are not past due) by any Loan Party or ERISA Affiliate has
been incurred or is expected by any Loan Party or ERISA Affiliate to be incurred with respect to any Pension Plan.
(f) No
Notification Event exists, except as would not reasonably be expected to result in a Material Adverse Effect.
(g) No
Loan Party or ERISA Affiliate has provided any security under Section 436 of the IRC.
(h) No
Loan Party or Subsidiary thereof is or has at any time been: (a) an employer (for the purposes of sections 38 to 51 of the Pensions
Act 2004) of an occupational pension scheme which is not a money purchase scheme (both terms as defined in the Pensions Schemes Act 1993)
and which is not fully funded as at the relevant date and such deficit would have a Material Adverse Effect; or (b) "connected"
with or an "associate" (as those terms are used in sections 38 and 43 of the Pensions Act 2004) of such an employer.
(i) With
respect to any Canadian Pension Plans established after the Closing Date, Borrowers will cause each Loan Party to, (a) comply with
all applicable provisions and funding requirements of the Income Tax Act (Canada) and applicable Canadian Pension Benefits Legislation
with respect to all Canadian Pension Plans and make all payments with respect thereto when due, except where the failure to do so could
not reasonably be expected to result in a Material Adverse Effect, (b) operate each Canadian Pension Plan in such a manner that will
not incur any material liability under the Income Tax Act (Canada) and applicable Canadian Pension Benefits Legislation except where the
failure to do so could not reasonably be expected to result in a Material Adverse Effect, and (c) furnish to the Agent upon Agent’s
written request such additional information about any Canadian Pension Plan for which any Loan Party could reasonably expect to incur
any material liability. Except as would not reasonably be expected to have a Material Adverse Effect, all employer or employee payments,
contributions, withholdings or premiums required to be remitted, paid to or in respect of Canadian income tax, vacation pay and statutory
benefit plans that any Loan Party is required to participate in or comply with, including the Canada Pension Plan or Quebec Pension Plan
and plans administered pursuant to applicable workplace safety insurance and employment insurance legislation will be paid or remitted
by each such Person when due in accordance with the terms thereof, any agreements relating thereto and all applicable laws.
-101-
4.11. Environmental
Condition. Except as set forth on Schedule 4.11 to this Agreement or as would not, individually or in the aggregate, have
a Material Adverse Effect, (a) to each Loan Party's knowledge, no Loan Party's nor any of its Subsidiaries' properties or assets
has ever been used by a Loan Party or its Subsidiaries, or by previous owners or operations in the disposal of, or to produce, store,
handle, treat, release, or transport, any Hazardous Materials, where such disposal, production, storage, handling, treatment, release
or transport was in violation, in any material respect, of any applicable Environmental Law, (b) to each Loan Party's knowledge after
due inquiry, no Loan Party's nor any of its Subsidiaries' properties or assets has ever been designated or identified in any manner pursuant
to any environmental protection statute as a Hazardous Materials disposal site, (c) no Loan Party nor any of its Subsidiaries has
received notice that a Lien arising under any Environmental Law has attached to any revenues or to any Real Property owned or operated
by a Loan Party or its Subsidiaries, (d) no Loan Party nor any of its Subsidiaries nor any of their respective facilities or operations
is subject to any outstanding written order, consent decree, or settlement agreement with any Person relating to any Environmental Law
or Environmental Liability, and (e) to each Loan Party's knowledge, (i) there are no visible signs of release, spills, discharges,
leaks or disposal (collectively referred to as "Releases") of Hazardous Materials at, upon, under or within any Real
Property or any premises leased by the Loan Parties and/or their respective Subsidiaries, (ii) there are no underground storage tanks
or polychlorinated biphenyls on the Real Property or any premises leased by the Loan Parties and/or their respective Subsidiaries, and
(iii) no Hazardous Materials are present on any Real Property or any premises leased by the Loan Parties and/or their respective
Subsidiaries, excepting such quantities as are handled in accordance with all applicable manufacturer's instructions and governmental
regulations and in proper storage containers and as are necessary for the operation of the commercial business of the Loan Parties and
their respective Subsidiaries or of their tenants.
4.12. Complete
Disclosure. All factual information taken as a whole (other than forward-looking information and projections and information of
a general economic nature and general information about the industry of any Loan Party or its Subsidiaries) furnished by or on behalf
of a Loan Party or its Subsidiaries in writing to Agent, Revolving Agent or any Lender (including all information contained in the Schedules
hereto or in the other Loan Documents or Comtech's Exchange Act filings) for purposes of or in connection with this Agreement or the other
Loan Documents, and all other such factual information taken as a whole (other than forward-looking information and projections and information
of a general economic nature and general information about the industry of any Loan Party or its Subsidiaries) hereafter furnished by
or on behalf of a Loan Party or its Subsidiaries in writing to Agent, Revolving Agent or any Lender will be, true and accurate, in all
material respects, on the date as of which such information is dated or certified and not incomplete by omitting to state any fact necessary
to make such information (taken as a whole) not misleading in any material respect at such time in light of the circumstances under which
such information was provided. The Projections delivered to Agent and Revolving Agent on or about April 30, 2024 represent, and as
of the date on which any other Projections are delivered to Agent and Revolving Agent, such additional Projections represent, Borrowers'
good faith estimate, on the date such Projections are delivered, of the Loan Parties' and their Subsidiaries' future performance for the
periods covered thereby based upon assumptions believed by Borrowers to be reasonable at the time of the delivery thereof to Agent and
Revolving Agent (it being understood that such Projections are subject to significant uncertainties and contingencies, many of which are
beyond the control of the Loan Parties and their Subsidiaries, and no assurances can be given that such Projections will be realized,
and although reflecting Borrowers' good faith estimate, projections or forecasts based on methods and assumptions which Borrowers believed
to be reasonable at the time such Projections were prepared, are not to be viewed as facts, and that actual results during the period
or periods covered by the Projections may differ materially from projected or estimated results). As of the Closing Date, the information
included in the Beneficial Ownership Certification is true and correct in all respects.
-102-
4.13. Patriot
Act, etc.. To the extent applicable, each Loan Party is in compliance, in all material respects, with the (a) Trading
with the Enemy Act, as amended, and each of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle
B, Chapter V, as amended) and any other enabling legislation or executive order relating thereto, and (b) Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act of 2001, as amended) (the "Patriot
Act"), and (c) Canadian AML Laws.
4.14. [Reserved].
4.15. Payment
of Taxes. Each Loan Party and its Subsidiaries (a) has timely filed or caused to be filed all Tax returns and reports required
to have been filed by it, except to the extent that failure to do so would not reasonably be expected to result in a Material Adverse
Effect, and (b) has paid or caused to be paid all Taxes required to have been paid by it, except to the extent contested through
a Permitted Protest, or to the extent the failure to pay such Taxes, individually or in the aggregate, would not reasonably be expected
to result in a Material Adverse Effect.
4.16. Margin
Stock. Neither any Loan Party nor any of its Subsidiaries owns any Margin Stock or is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of purchasing or carrying any Margin Stock. No part of the proceeds of
the Loans made to Borrowers 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 the provisions of Regulation T, U or X of the Board of Governors. Neither
any Loan Party nor any of its Subsidiaries expects to acquire any Margin Stock.
4.17. Governmental
Regulation. No Loan Party nor any of its Subsidiaries is subject to regulation under the Federal Power Act or the Investment Company
Act of 1940 or under any other federal, state, provincial or territorial statute or regulation which may limit its ability to incur Indebtedness
or which may otherwise render all or any portion of the Obligations unenforceable. No Loan Party nor any of its Subsidiaries is a "registered
investment company" or a company "controlled" by a "registered investment company" or a "principal underwriter"
of a "registered investment company" as such terms are defined in the Investment Company Act of 1940.
-103-
4.18. OFAC;
Sanctions; Anti-Corruption Laws; Anti-Money Laundering Laws. No Loan Party or any of its Subsidiaries is in violation of any Sanctions.
No Loan Party nor any of its Subsidiaries nor, to the knowledge of such Loan Party, any director, officer, employee, agent or Affiliate
of such Loan Party or such Subsidiary (a) is a Sanctioned Person or a Sanctioned Entity, (b) has any assets located in Sanctioned
Entities, or (c) derives revenues from investments in, or transactions with Sanctioned Persons or Sanctioned Entities. Each of the
Loan Parties and its Subsidiaries has implemented and maintains in effect policies and procedures designed to ensure compliance with all
Sanctions, Anti-Corruption Laws and Anti-Money Laundering Laws. Each of the Loan Parties and its Subsidiaries, and to the knowledge of
each such Loan Party, each director, officer, employee, agent and Affiliate of each such Loan Party and each such Subsidiary, is in compliance
with all Sanctions, Anti-Corruption Laws and Anti-Money Laundering Laws. No proceeds of any Loan made hereunder will be used to fund any
operations in, finance any investments or activities in, or make any payments to, a Sanctioned Person or a Sanctioned Entity, or otherwise
used in any manner that would result in a violation of any Sanction, Anti-Corruption Law or Anti-Money Laundering Law by any Person (including
any Lender, Bank Product Provider or other individual or entity participating in any transaction). Notwithstanding the foregoing, this
section shall not be made by nor apply to any Person that is registered or created under the laws of Canada or any province or territory
thereof and that carries on business in whole or in part in Canada within the meaning of Section 2 of the Foreign Extraterritorial
Measures (United States) Order, 1992 passed under the Foreign Extraterritorial Measures Act (Canada) in so far as this section
would result in a violation of or conflict with the Foreign Extraterritorial Measures Act (Canada) or any similar law.
4.19. Employee
and Labor Matters. There is (i) no unfair labor practice complaint pending or, to the knowledge of any Loan Party after due
inquiry, threatened against any Loan Party or its Subsidiaries before any Governmental Authority and no grievance or arbitration proceeding
pending or threatened against any Loan Party or its Subsidiaries which arises out of or under any collective bargaining agreement and
that could reasonably be expected to result in a material liability, (ii) no strike, labor dispute, slowdown, stoppage or similar
action or grievance pending or threatened in writing against any Loan Party or its Subsidiaries that could reasonably be expected to result
in a material liability, or (iii) to the knowledge of any Loan Party after due inquiry, no union representation question existing
with respect to the employees of any Loan Party or its Subsidiaries and no union organizing activity taking place with respect to any
of the employees of any Loan Party or its Subsidiaries. None of any Loan Party or its Subsidiaries has incurred any liability or obligation
under the Worker Adjustment and Retraining Notification Act or similar state law, which remains unpaid or unsatisfied. The hours worked
and payments made to employees of each Loan Party and its Subsidiaries have not been in violation of the Fair Labor Standards Act or any
other applicable legal requirements, except to the extent such violations could not, individually or in the aggregate, reasonably be expected
to result in a Material Adverse Effect. All material payments due from any Loan Party or its Subsidiaries 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 Comtech, except where the failure
to do so could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
4.20. [Reserved].
-104-
4.21. Leases.
Each Loan Party and its Subsidiaries enjoy peaceful and undisturbed possession under all leases material to their business and to which
they are parties or under which they are operating, and, subject to Permitted Protests, all of such material leases are valid and subsisting
and no material default by the applicable Loan Party or its Subsidiaries exists under any of them.
4.22. [Reserved].
4.23. [Reserved].
4.24. Location
of Inventory. Except as set forth in Schedule 4.24, the Inventory of the Loan Parties and their Subsidiaries is not stored
with a bailee, warehouseman, or similar party and is located only at, or in-transit between, the locations identified on Schedule 4.24
to this Agreement (as such Schedule may be updated pursuant to Section 5.14).
4.25. Inventory
Records. Each Loan Party keeps correct and accurate records itemizing and describing the type, quality, and quantity of its and
its Subsidiaries' Inventory and the book value thereof.
4.26. [Reserved].
4.27. Hedge
Agreements. On each date that any Hedge Agreement is executed by any Hedge Provider, Borrower and each other Loan Party satisfy
all eligibility, suitability and other requirements under the Commodity Exchange Act (7 U.S.C. § 1, et seq., as in effect from time
to time) and the Commodity Futures Trading Commission regulations.
4.28. Material
Contracts. Set forth on Schedule 4.28 (as such Schedule may be updated from time to time in accordance herewith) is a list
of the Material Contracts of each Loan Party and its Subsidiaries as of the most recent date on which Comtech provided the Compliance
Certificate pursuant to Section 5.1; provided, that Borrowers may amend Schedule 4.28 to add additional Material
Contracts so long as such amendment occurs by written notice to Agent (with a copy to Revolving Agent) on the date that Comtech provides
the Compliance Certificate. Except for matters which, either individually or in the aggregate, could not reasonably be expected to result
in a Material Adverse Effect, each Material Contract (other than those that have expired at the end of their normal terms) (a) is
in full force and effect and is binding upon and enforceable against the applicable Loan Party or its Subsidiary and, to each Loan Party's
knowledge, each other Person that is a party thereto in accordance with its terms, (b) has not been otherwise amended or modified
(other than amendments or modifications permitted by Section 6.6(b)), and (c) is not in default due to the action or
inaction of the applicable Loan Party or its Subsidiary.
4.29. Non-Loan
Party Subsidiaries. No Subsidiary of Comtech that is not a Loan Party owns, or has an exclusive license to use, any Intellectual
Property that is material to the business of the Loan Parties.
4.30. Centre
of Main Interests. The "centre of main interest" (as that term is used in the Cross Border Insolvency Regulations 2006)
of each UK Loan Party is situated in its jurisdiction of incorporation and none of them have an "establishment" (as that term
is used in the Cross Border Insolvency Regulations 2006) in any other jurisdiction.
-105-
5. AFFIRMATIVE COVENANTS.
Each Borrower covenants and
agrees that, until the termination of all of the Commitments and payment in full of the Obligations:
5.1. Financial
Statements, Reports, Certificates. Borrowers (a) will deliver to Agent (with a copy to Revolving Agent), for distribution
to each Lender, each of the financial statements, reports, and other items set forth on Schedule 5.1 to this Agreement no later
than the times specified therein, (b) agree that no Subsidiary of a Loan Party will have a fiscal year different from that of Comtech,
(c) agree to maintain a system of accounting that enables Borrowers to produce financial statements in accordance with GAAP, and
(d) agree that they will, and will cause each other Loan Party to, (i) keep a reporting system that shows all additions, sales,
claims, returns, and allowances with respect to their and their Subsidiaries' sales, and (ii) maintain their billing systems and
practices substantially as in effect as of the Closing Date and shall only make material modifications thereto with notice to Agent and
Revolving Agent.
5.2. Reporting.
Borrowers will deliver to Agent, for distribution to each Lender, each of the reports set forth on Schedule 5.2 to this Agreement
at the times specified therein.
5.3. Existence.
Except as otherwise permitted under Section 6.3 or Section 6.4, each Loan Party will, and will cause each of its
Subsidiaries to, at all times preserve and keep in full force and effect such Person's valid existence and good standing in its jurisdiction
of organization and, except as could not reasonably be expected to result in a Material Adverse Effect, good standing with respect to
all other jurisdictions in which it is qualified to do business and any rights, franchises, permits, licenses, accreditations, authorizations,
or other approvals material to their businesses.
5.4. Maintenance
of Properties. Each Loan Party will, and will cause each of its Subsidiaries to, maintain and preserve all of its assets that
are necessary for the proper conduct of its business in good working order and condition, ordinary wear, tear, casualty, and condemnation
and Permitted Dispositions excepted.
5.5. Taxes.
Each Loan Party will, and will cause each of its Subsidiaries to, pay its Tax liabilities, before the same shall become delinquent or
in default, except where (i) such Tax is the subject of a Permitted Protest or (ii) the failure to pay such Tax would not reasonably
be expected to result in a Material Adverse Effect.
5.6. Insurance.
(a) Each
Loan Party will, and will cause each of its Subsidiaries to, at Borrowers' expense, maintain insurance respecting each of each Loan Party's
and its Subsidiaries' assets wherever located, covering liabilities, losses or damages as are customarily insured against by other Persons
engaged in same or similar businesses and similarly situated and located. All such policies of insurance shall be with financially sound
and reputable insurance companies reasonably acceptable to Agent (it being agreed that, as of the Closing Date, the Loan Parties' existing
insurance providers as set forth in the certificates of insurance delivered to Agent on or about the Closing Date shall be deemed to be
reasonably acceptable to Agent) and in such amounts as is carried generally in accordance with sound business practice by companies in
similar businesses similarly situated and located and, in any event, in amount, adequacy, and scope reasonably satisfactory to Agent (it
being agreed that the amount, adequacy, and scope of the policies of insurance of Borrowers in effect as of the Closing Date are acceptable
to Agent). All property insurance policies are to be made payable to Agent for the benefit of Agent and the Lenders, as their interests
may appear, in case of loss, pursuant to a standard lender's loss payable endorsement with a standard non-contributory "lender"
or "secured party" clause and are to contain such other provisions as 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 property and general liability insurance
are to be delivered to Agent, with the lender's loss payable and additional insured endorsements in favor of Agent and shall provide for
such insurer to provide not less than thirty days (ten days in the case of non-payment) prior written notice to Agent of the exercise
of any right of cancellation. If any Loan Party or its Subsidiaries fails to maintain such insurance, Agent may arrange for such insurance,
but at Borrowers' expense and without any responsibility on Agent's part for obtaining the insurance, the solvency of the insurance companies,
the adequacy of the coverage, or the collection of claims.
-106-
(b) If
at any time the area in which any Real Property that is subject to a Mortgage is located is designated a "flood hazard area"
in any Flood Insurance Rate Map published by the Federal Emergency Management Agency (or any successor agency), obtain flood insurance
in such total amount and on terms that are satisfactory to Agent and all Lenders from time to time, and otherwise comply with the Flood
Laws or as is otherwise satisfactory to Agent and all Lenders.
5.7. Inspection.
(a) Each
Loan Party will, and will cause each of its Subsidiaries to, permit Agent, Revolving Agent, and their respective duly authorized representatives
or agents to visit any of its properties and inspect any of its assets or books and records, to examine and make copies of its books and
records, and to discuss its affairs, finances, and accounts with, and to be advised as to the same by, its officers and employees (provided,
that an authorized representative of Borrowers shall be allowed to be present) at such times and intervals as Agent or Revolving Agent,
as applicable, may reasonably designate (but so long as no Event of Default has occurred and is continuing, (x) not more than twice
per fiscal year of the Borrower and (y) each inspection after the first per fiscal year of the Borrower shall be at Agent's expense)
and, so long as no Default or Event of Default has occurred and is continuing, with reasonable prior notice to Borrowers and during regular
business hours, at Borrowers' expense, subject to the limitations set forth below in Section 5.7(c). The Loan Parties shall
have the right to have a representative present at any and all inspections.
(b) Each
Loan Party will, and will cause each of its Subsidiaries to, permit Agent, Revolving Agent, and each of their respective duly authorized
representatives or agents to conduct field examinations (including the Post-Amendment No. 3 Field Examination), appraisals or valuations
at such reasonable times and intervals as Agent or Revolving Agent, as applicable, may designate (but so long as no Event of Default has
occurred and is continuing, not more than twice per fiscal year of the Borrower (including the Post-Amendment No. 3 Field Examination)),
at Borrowers' expense, subject to the limitations set forth below in Section 5.7(c) and (d). The Loan Parties
shall have the right to have a representative present at any and all field examinations, appraisals or valuations.
-107-
(c) Subject
to Section 5.7(d) below, so long as no Event of Default shall have occurred and be continuing during a calendar year,
Borrowers shall not be obligated to reimburse Agent and/or Revolving Agent for any field examinations, financial examinations, appraisals
or valuations.
(d) Notwithstanding
the foregoing, each Loan Party will, and will cause each of its Subsidiaries to, permit Revolving Agent and its duly authorized representatives
or agents to conduct the Post-Amendment No. 3 Field Examination within the time period specified in the definition thereof (or such
earlier date as Revolving Agent and Administrative Borrower may agree in writing) and shall reimburse Revolving Agent for no more than
$50,000 of the Revolving Agent’s reasonable and documented out-of-pocket costs and expenses related to the Post-Amendment No. 3
Field Examination.
5.8. Compliance
with Laws. Each Loan Party will, and will cause each of its Subsidiaries to, comply with the requirements of all applicable laws,
rules, regulations, and orders of any Governmental Authority, other than laws, rules, regulations, and orders the non-compliance with
which, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
5.9. Environmental.
Except as would not, in each case, be
material to any Loan Party:
(a) Each
Loan Party will, and will cause each of its Subsidiaries to, keep any property either owned or operated by any Loan Party or its Subsidiaries
free of any Environmental Liens or post bonds or other financial assurances sufficient to satisfy the obligations or liability evidenced
by such Environmental Liens.
(b) Each
Loan Party will, and will cause each of its Subsidiaries to, ensure that the Real Property, to the extent controlled by any Loan Party,
and all operations and businesses conducted by any Loan Party thereon remains in material compliance with all Environmental Laws and such
Loan Party will not, and will cause its Subsidiaries not to, place or permit to be placed any Hazardous Materials on any Real Property
except as permitted by applicable law or appropriate Governmental Authorities.
(c) Each
Loan Party will, and will cause each of its Subsidiaries to, (i) employ in connection with the use of any Real Property appropriate
technology necessary to maintain material compliance with any applicable Environmental Laws and (ii) dispose of any and all Hazardous
Materials generated at the Real Property only at facilities and with carriers that maintain valid permits under any applicable Environmental
Laws. The Loan Parties shall, and shall cause their respective Subsidiaries to, use reasonable best efforts to obtain certificates of
disposal, such as hazardous waste manifest receipts, from all treatment, transport, storage or disposal facilities or operators employed
by such Loan Parties or their respective Subsidiaries in connection with the transport or disposal of any Hazardous Materials generated
at any Real Property.
(d) Each
Loan Party will, and will cause each of its Subsidiaries to, promptly notify Agent of any Release of which any Loan Party has knowledge
of a Hazardous Material in any reportable quantity from or onto any Real Property owned or operated by any Loan Party or its Subsidiaries
and take any Remedial Actions required of such Loan Party to abate said release or otherwise to come into compliance, in all material
respects, with applicable Environmental Law.
-108-
(e) Each
Loan Party will, and will cause each of its Subsidiaries to, promptly, but in any event within five (5) Business Days of its receipt
thereof, provide Agent with written notice of any of the following: (i) notice that an Environmental Lien has been filed against
any of the real or personal property of a Loan Party or its Subsidiaries, (ii) commencement of any Environmental Action or written
notice that an Environmental Action will be filed against a Loan Party or its Subsidiaries, and (iii) written notice of a violation,
citation, or other administrative order from a Governmental Authority.
(f) Each
Loan Party will, and will cause each of its Subsidiaries to, promptly forward to Agent copies of any request for information, notification
of potential liability, demand letter relating to potential responsibility with respect to the investigation or cleanup of Hazardous Materials
at any other site owned, operated or used by the Loan Parties and/or their respective Subsidiaries to dispose of Hazardous Materials and
shall continue to forward copies of correspondence between the applicable Loan Party or Subsidiary, and the Governmental Authority regarding
such claims to Agent until the claim is settled. The Loan Parties shall promptly forward to Agent copies of all documents and reports
concerning any material Release or threat of Release of a reportable quantity of any Hazardous Materials at the Real Property (any such
event being hereinafter referred to as a "Hazardous Discharge") that the Loan Parties and/or their respective Subsidiaries
are required to file under any Environmental Laws. Such information is to be provided solely to allow Agent to protect Agent's security
interest in and Lien on the Real Property and the Collateral.
(g) Each
Loan Party will, and will cause each of its Subsidiaries to, respond promptly to any Hazardous Discharge or Environmental Action and take
all necessary Remedial Actions to the extent required by Environmental Laws in order to safeguard the health of any Person and to avoid
subjecting the Collateral or Real Property to any Environmental Lien. If the Loan Parties shall fail to, or fail to cause their respective
Subsidiaries to, respond promptly to any Hazardous Discharge or Environmental Action or the Loan Parties shall fail to, or fail to cause
their respective Subsidiaries to, comply with any of the requirements of any Environmental Laws, Agent on behalf of Lenders may, but without
the obligation to do so, for the sole purpose of protecting Agent's interest in the Collateral: (A) give such notices and, if such
Loan Party does not respond in a timely fashion, to (B) enter onto the Real Property (or authorize third parties to enter onto the
Real Property) and take such actions as are required by Environmental Laws or reasonably necessary or advisable, to clean up, remove,
mitigate or otherwise deal with any such Hazardous Discharge or Environmental Action. All reasonable costs and expenses incurred by Agent
and Lenders (or such third parties) in the exercise of any such rights, including any sums paid in connection with any judicial or administrative
investigation or proceedings, fines and penalties, together with interest thereon from the date expended at the default rate for Base
Rate Loans shall be paid upon demand by the Loan Parties, and until paid shall be added to and become a part of the Obligations secured
by the Liens created by the terms of this Agreement or any other agreement between Agent, any Lender and the Loan Parties.
(h) Promptly
upon the written request of Agent subsequent to a Hazardous Discharge, the Loan Parties shall provide Agent, at the Loan Parties' sole
expense, with an environmental site assessment prepared by an environmental engineering firm acceptable in the reasonable opinion of Agent,
to assess with a reasonable degree of certainty the impact of such Hazardous Discharge and the potential costs in connection with any
abatement, cleanup and removal of such Hazardous Discharge. Any report or investigation of such Hazardous Discharge proposed and acceptable
to an appropriate Governmental Authority that is charged to oversee the clean-up of such Hazardous Discharge shall be reasonably acceptable
to Agent. If such estimates, individually or in the aggregate, exceed $1,000,000, Agent shall have the right to require Loan Parties to
post a bond, letter of credit or other security reasonably satisfactory to Agent to secure payment of these costs and expenses.
-109-
(i) The
Loan Parties shall defend and indemnify each Indemnified Person harmless from and against all loss, liability, damage and expense, claims,
costs, fines and penalties, including attorney's fees, suffered or incurred by Agent or Lenders under or on account of any Environmental
Laws, including the assertion of any Lien thereunder, with respect to any Hazardous Discharge, the presence of any Hazardous Materials
affecting the Real Property, whether or not the same originates or emerges from the Real Property or any contiguous real estate, including
any loss of value of the Real Property as a result of the foregoing except to the extent such loss, liability, damage and expense is attributable
to any Hazardous Discharge resulting from actions on the part of Agent or any Lender or otherwise arises out of the gross negligence or
willful misconduct of Agent or any Lender. The Loan Parties' obligations under this Section 5.9(j) shall arise upon the
discovery of the presence of any Hazardous Materials at the Real Property, whether or not any federal, state, provincial, territorial
or local environmental agency has taken or threatened any action in connection with the presence of any Hazardous Materials. The Loan
Parties' obligation and the indemnifications hereunder shall survive the termination of this Agreement. For the avoidance of doubt, this
clause (j) shall be supplemental to the provisions of Section 10.3.
(j) For
purposes of Section 4.11 and 5.9, all references to Real Property shall be deemed to include all of Loan Parties' and
their respective Subsidiaries' right, title and interest in and to its owned and leased premises.
5.10. Disclosure
Updates. Each Loan Party will, promptly and in no event later than five (5) Business Days after obtaining knowledge thereof,
notify Agent if any written information, exhibit, or report furnished to Agent or the Lenders contained, at the time it was furnished,
any untrue statement of a material fact or omitted to state any material fact necessary to make the statements contained therein not misleading
in light of the circumstances in which made. The foregoing to the contrary notwithstanding, any notification pursuant to the foregoing
provision will not cure or remedy the effect of the prior untrue statement of a material fact or omission of any material fact nor shall
any such notification have the effect of amending or modifying this Agreement or any of the Schedules hereto.
5.11. Formation
of Subsidiaries. Each Loan Party will, at the time that any Loan Party forms any direct or indirect Subsidiary, or acquires any
direct or indirect Subsidiary after the Closing Date, within forty-five (45) days (or in the case of Mortgages and related items, sixty
(60) days) following such event (or such later date as permitted by Agent in its sole discretion) (a) cause such new Subsidiary (i) if
such Subsidiary is a Domestic Subsidiary and Administrative Borrower requests, subject to the consent of Agent, that such Domestic Subsidiary
be joined as a Borrower hereunder, to provide to Agent a Joinder to this Agreement, and (ii) if such Subsidiary is (A) a Domestic
Subsidiary that is not a CFC Holdco or a Subsidiary of a CFC or (B) a Designated Foreign Guarantor, to provide to Agent a joinder
to the Guaranty and Security Agreement or the Canadian Guarantee and Security Agreement, a Canadian Deed of Hypothec or a deed of accession
to the UK Debenture (as applicable), in each case, together with such other security agreements (including Mortgages with respect to any
Real Property owned in fee of such new Subsidiary with a fair market value of greater than $2,500,000), as well as appropriate financing
statements (and with respect to all property subject to a Mortgage, fixture filings), all in form and substance reasonably satisfactory
to Agent (including being sufficient to grant Agent a first priority Lien (subject to Permitted Liens) in and to the assets of such newly
formed or acquired Subsidiary); (b) provide, or cause the applicable Loan Party to provide, to Agent a pledge agreement (or an addendum
to the Guaranty and Security Agreement and/or any Canadian Deed of Hypothec or Canadian Guarantee and Security Agreement, as applicable)
and appropriate certificates and powers or financing statements, pledging all of the direct or beneficial ownership interest in such new
Subsidiary in form and substance reasonably satisfactory to Agent (which pledge, if reasonably requested by Agent, shall be governed by
the laws of the jurisdiction of such Subsidiary); and (c) provide to Agent all other documentation, including the Governing Documents
of such Subsidiary and one or more opinions of counsel reasonably satisfactory to Agent, which, in its opinion, is reasonably appropriate
with respect to the execution and delivery of the applicable documentation referred to above (including policies of title insurance, flood
certification documentation or other documentation with respect to all Real Property owned in fee and subject to a mortgage). Any
document, agreement, or instrument (other than any legal opinion) executed or issued pursuant to this Section 5.11 shall constitute
a Loan Document.
-110-
5.12. Further
Assurances. The Borrowers will, and will cause each of the other Loan Parties to, at any time upon the reasonable request of Agent,
execute or deliver to Agent any and all financing statements, fixture filings, security agreements, Canadian Deeds of Hypothec, pledges,
assignments, mortgages, deeds of trust, customary opinions of counsel, and all other documents (which in the case of a UK Loan Party shall
be limited to a UK Debenture or accession deed thereto, associated opinions of counsel and any documentation required by the terms of
the UK Debenture) (the "Additional Documents") that Agent may reasonably request in form and substance reasonably satisfactory
to Agent, to create, perfect, and continue perfected or to better perfect Agent's Liens in all of the assets of each of the Loan Parties
(whether now owned or hereafter arising or acquired, tangible or intangible, real or personal) (other than any assets expressly excluded
from the Collateral (as defined in the Guaranty and Security Agreement or the Canadian Guarantee and Security Agreement) pursuant to Section 3
of the Guaranty and Security Agreement or the Canadian Guarantee and Security Agreement, as applicable), to create and perfect Liens in
favor of Agent in any Real Property owned in fee acquired by any other Loan Party with a fair market value in excess of $2,500,000, and
in order to fully consummate all of the transactions contemplated hereby and under the other Loan Documents; provided, that the
foregoing shall not apply to any Subsidiary of a Loan Party that is a CFC if providing such documents would result in material adverse
tax consequences or the costs to the Loan Parties of providing such documents are unreasonably excessive (as determined by Agent) in relation
to the benefits to Agent and the Lenders of the security afforded thereby. To the maximum extent permitted by applicable law, if any Borrower
or any other Loan Party refuses or fails to execute or deliver any reasonably requested Additional Documents within a reasonable period
of time not to exceed thirty (30) Business Days following the request to do so, each Borrower and each other Loan Party hereby authorizes
Agent to execute any such Additional Documents in the applicable Loan Party's name and authorizes Agent to file such executed Additional
Documents in any appropriate filing office. In furtherance of, and not in limitation of, the foregoing, each Loan Party shall take such
actions as Agent may reasonably request from time to time to ensure that the Obligations are guaranteed by the Guarantors and are secured
by substantially all of the assets of the Loan Parties, including all of the outstanding capital Equity Interests of Comtech's Subsidiaries
(in each case, other than with respect to any assets expressly excluded from the Collateral (as defined in the Guaranty and Security Agreement
or the Canadian Guarantee and Security Agreement) pursuant to Section 3 of the Guaranty and Security Agreement or the Canadian Guarantee
and Security Agreement, as applicable). Notwithstanding anything to the contrary contained herein (including Section 5.11
hereof and this Section 5.12) or in any other Loan Document, (x) Agent shall not accept delivery of any Mortgage from
any Loan Party unless each of the Lenders has received 45 days prior written notice thereof and Agent has received confirmation from each
Lender that such Lender has completed its flood insurance diligence, has received copies of all flood insurance documentation and has
confirmed that flood insurance compliance has been completed as required by the Flood Laws or as otherwise satisfactory to such Lender
and (y) Agent shall not accept delivery of any joinder to any Loan Document with respect to any Subsidiary of any Loan Party that
is not a Loan Party, if such Subsidiary that qualifies as a "legal entity customer" under the Beneficial Ownership Regulation
unless such Subsidiary has delivered a Beneficial Ownership Certification in relation to such Subsidiary and Agent has completed its Patriot
Act searches, OFAC/PEP searches and customary individual background checks for such Subsidiary, the results of which shall be satisfactory
to Agent; provided, that, if completion of the obligations of the Loan Parties under Section 5.11 or this Section 5.12
are delayed solely as a result of (1) one or more Lenders' failure to confirm its satisfaction with flood insurance compliance or
(2) Agent's failure to complete its Patriot Act searches, OFAC/PEP searches and customary individual background checks required in
connection with any joinder, in each case, despite receiving all requested information from the Loan Parties necessary to complete such
steps at least 10 days prior to the applicable due date for completion of such obligation under Section 5.11 or this Section 5.12,
then, the applicable due date therefore shall be automatically extended until such Lender or Agent completes the items referred to in
the foregoing clauses (1) or (2).
5.13. Lender
Meetings; Board Materials; Board Observation Rights.
(a) Comtech
will, no more than once each fiscal quarter, at the request of Agent or of the Required Lenders and upon reasonable prior notice, hold
a meeting (at a mutually agreeable location and time which may be by video conference or conference call) with all Lenders who choose
to attend such meeting at which meeting shall be reviewed the financial results of the previous fiscal year and of the previous fiscal
quarter and the financial condition of the Loan Parties and their Subsidiaries and the projections presented for the current fiscal year
of Comtech.
(b) Agent
and Revolving Agent shall have the right to receive any material formal documentation 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 Comtech and any of its
respective Subsidiaries promptly, and in any event within five (5) Business Days after the occurrence of each meeting of the Board
of Directors or any similar group performing an executive oversight or similar function (or any relevant committee thereof) (regular or
special and whether telephonic or otherwise), and Agent and Revolving Agent shall keep such materials and information confidential in
accordance with Section 17.9; provided that in connection with the foregoing, Comtech will not be required to provide
information or documentation to the extent that (i) the provision thereof would violate any law, rule or regulation or any obligation
of confidentiality owing to a third party binding on Comtech or its Affiliates to the extent that such obligation was not entered into
in contemplation of this provision (provided that, Comtech and its Affiliates shall use commercially reasonable efforts to avoid entering
into any such obligation of confidentiality owing to a third party), or (ii) the exclusion is necessary to preserve attorney-client
privilege between Comtech and its counsel, in each case, in the reasonable determination of Comtech's counsel.
-111-
(c) During
any Board Observation Period, Agent shall be entitled to designate one observer (the "Board Observer") to attend any
regular meeting of the Board of Directors of Comtech or any of its Subsidiaries (or, in each case, any relevant committees thereof) (a
"BOD Meeting"), except that the Board Observer shall not be entitled to vote on matters presented to or discussed by
the Board of Directors (or any relevant committee thereof) of Comtech or any of its Subsidiaries at any such meetings. The Board Observer
may be excluded from any portion of any BOD Meeting to the extent such exclusion is necessary to (i) avoid violation of any law,
rule or regulation or any obligation of confidentiality owing to a third party binding on Comtech or its Affiliates to the extent
that such obligation was not entered into in contemplation of this provision (provided that, Comtech and its Affiliates shall use commercially
reasonable efforts to avoid entering into any such obligation of confidentiality owing to a third party), or (ii) preserve attorney-client
privilege between Comtech and its counsel, in each case, in the reasonable determination of Comtech's counsel. The Board Observer shall
be timely notified of the time and place of any BOD Meetings (which shall be held no less than once per quarter) and, to the extent provided
to any members of the Board of Directors, will be given written notice of all proposed actions to be taken by the Board of Directors (or
any relevant committee thereof) of Comtech and any of its Subsidiaries at such meeting as if the Board Observer were a member thereof.
Such notice shall describe in reasonable detail the nature and substance of the matters to be discussed and/or voted upon at such meeting
(or the proposed actions to be taken by written consent without a meeting). Borrowers shall reimburse the Board Observer for all reasonable
out-of-pocket costs and expenses incurred in connection with its participation in any such BOD Meeting.
5.14. Location
of Inventory; Chief Executive Office. Each Loan Party will, and will cause each of its Subsidiaries to, keep (a) their Collateral
only at the locations identified on Schedule 4.24 to this Agreement (provided that Borrowers may amend Schedule 4.24
to this Agreement so long as such amendment occurs by prompt written notice to Agent), and (b) their respective chief executive offices,
registered office and domicile only at the locations identified on Schedule 7 to the Guaranty and Security Agreement or the Canadian Guarantee
and Security Agreement, as applicable (provided that any Loan Party may change its chief executive office to a location in the United
States and any Loan Party organized under the laws of Canada or any province thereof may change its chief executive office to a location
in Canada, in each case, provided the Borrower has provided written notice to Agent thereof not less than thirty (30) days’ prior
to such change). Each Loan Party will, and will cause each of its Subsidiaries to, use their commercially reasonable efforts to obtain
Collateral Access Agreements for each of the locations identified on (i) Schedule 7 to the Guaranty and Security Agreement or
the Canadian Guarantee and Security Agreement, as applicable, and (ii) Schedule 4.24 to this Agreement where Inventory
with a fair value exceeding $250,000 in the aggregate is held or stored.
-112-
5.15. OFAC;
Sanctions; Anti-Corruption Laws; Anti-Money Laundering Laws. Each Loan Party will, and will cause each of its Subsidiaries to
comply with all Sanctions, Anti-Corruption Laws and Anti-Money Laundering Laws. Each of the Loan Parties and its Subsidiaries shall implement
and maintain in effect policies and procedures designed to ensure compliance by the Loan Parties and their Subsidiaries and their respective
directors, officers, employees, agents and Affiliates with all Sanctions, Anti-Corruption Laws and Anti-Money Laundering Laws. Notwithstanding
the foregoing, this section shall not be made by nor apply to any Person that is registered or created under the laws of Canada or any
province or territory thereof and that carries on business in whole or in part in Canada within the meaning of Section 2 of the Foreign
Extraterritorial Measures (United States) Order, 1992 passed under the Foreign Extraterritorial Measures Act (Canada) in so far
as this section would result in a violation of or conflict with the Foreign Extraterritorial Measures Act (Canada) or any similar
law.
5.16. Material
Contracts. Contemporaneously with the delivery of each Compliance Certificate pursuant to Section 5.1, Borrowers will
provide Agent with copies of (a) each Material Contract entered into since the delivery of the previous Compliance Certificate, and
(b) each material amendment or modification of any Material Contract entered into since the delivery of the previous Compliance Certificate.
5.17. Compliance
with ERISA and the IRC.In addition to and without limiting the generality of Section 5.8, (a) comply in all material
respects with applicable provisions of ERISA and the IRC with respect to all Employee Benefit Plans, (b) without the prior written
consent of Agent and the Required Lenders, not take any action or fail to take action the result of which could result in a Loan Party
or ERISA Affiliate incurring a liability to the PBGC or to a Multiemployer Plan (other than to pay contributions or premiums payable in
the ordinary course) that, in the aggregate, reasonably could be expected to result in a Material Adverse Effect, (c) allow any facts
or circumstances to exist with respect to one or more Employee Benefit Plans that, in the aggregate, reasonably could be expected to result
in a Material Adverse Effect, (d) [reserved], (e) operate each Employee Benefit Plan in such a manner that will not incur
any material tax liability under the IRC (including Section 4980B of the IRC), and (f) furnish to Agent upon Agent's written
request such additional information about any Employee Benefit Plan for which any Loan Party or ERISA Affiliate could reasonably expect
to incur any material liability. With respect to each Pension Plan (other than a Multiemployer Plan) except as could not reasonably be
expected to result in liability to the Loan Parties that would result in a Material Adverse Effect, the Loan Parties and the ERISA Affiliates
shall (i) satisfy in full and in a timely manner, without incurring any late payment or underpayment charge or penalty and without
giving rise to any Lien, all of the contribution and funding requirements of the IRC and of ERISA, and (ii) pay, or cause to be paid,
to the PBGC in a timely manner, without incurring any late payment or underpayment charge or penalty, all premiums required pursuant to
ERISA.
5.18. UK
Pensions. Ensure that no Loan Party or Subsidiary thereof is or has at any time been (a) an employer (for the purposes of
sections 38 to 51 of the Pensions Act 2004) of an occupational pension scheme which is not a money purchase scheme (both terms as defined
in the Pension Schemes Act 1993) and which is not fully funded as at the relevant date and such deficit would have a Material Adverse
Effect; or (b) "connected" with or an "associate" of (as those terms are used in sections 38 or 43 of the Pensions
Act 2004) such an employer.
-113-
5.19. People
with Significant Control Regime. Each Loan Party and each Subsidiary thereof shall (a) within the relevant timeframe, comply
with any notice it receives pursuant to Part 21A of the Companies Act 2006 from any company incorporated in the United Kingdom whose
shares are the subject of a Lien in favor of the Agent, and (b) promptly provide the Agent with a copy of that notice.
5.20. Financial
Advisor. Within ten (10) Business Days after the election of Agent to require the Loan Parties to engage the Financial Advisor,
Administrative Borrower shall engage the Financial Advisor, on terms and in scope acceptable to Agent pursuant to a written agreement,
which agreement shall be in form and substance acceptable to Agent and shall thereafter not be amended, restated or otherwise modified
without the prior written consent of Agent. The Loan Parties agree to provide the Financial Advisor with full cooperation and access to
information, in each case, as reasonably requested by the Financial Advisor, to facilitate performance of the Financial Advisor's duties.
All fees, costs and expenses of the Financial Advisor shall be solely the responsibility of Loan Parties, and in no event will Agent,
Revolving Agent or any Lender have any liability or responsibility of any kind with respect to the Financial Advisor (including, without
limitation, as to the payment of any of the Financial Advisor's fees, costs or expenses), and Agent, Revolving Agent and Lenders will
not have any obligation or liability of any kind or nature to Loan Parties, the Financial Advisor or any other Person by reason of any
acts or omissions of the Financial Advisor.
5.21. WeeklyMonthly
Calls. Administrative Borrower shall cause the Financial Advisor to participate in weeklymonthly
conference calls with Administrative Borrower, Agent, Revolving Agent and any other advisors requested by either Agent or Revolving Agent
during which the Financial Advisor and management of the Administrative Borrower shall deliver updates and reports including but not limited
to (a) the Loan Parties' liquidity, (b) the Loan Parties' most recent 26-week cash flow forecast and variance analysis, including
risks to the forecast and updates on the status of significant accounts receivable, (c) current accounts receivable and payable agings
of the Loan Parties including top 20 consolidated accounts and a report on inventory balances by business, (d) Loan Parties' operations,
including management’s plans for operational rationalization, on-going strategic alternatives processes and the financial performance
of each business unit, (e) the contract procurement status of the Loan Parties' key customers and (f) updates on the implementation
and the effectiveness and results of the Transformation Plan. Such calls shall be held at a time acceptable to Agent, Revolving Agent
and the Financial Advisor.
5.22. Independent
Directors.
(a) No
later than thirty (30) days after the Independent Director Trigger Date (or such later date as Agent may agree to in writing in its sole
discretion) (such date, the “Independent Director Interview Date”), Administrative Borrower shall have interviewed
at least three candidates selected from a list of independent director candidates mutually agreed upon by Agent and Administrative Borrower
(the “Independent Director Candidates”) to serve as an independent director on the board of directors of Administrative
Borrower.
-114-
(b) No
later than fifteen (15) days after the Independent Director Interview Date (or such later date as Agent may agree to in writing in its
sole discretion), Administrative Borrower shall appoint one of the Independent Director Candidates to the board of directors of Administrative
Borrower; provided however, that if the board of directors of Administrative Borrower has an even number of directors after giving effect
to such appointment, Administrative Borrower shall appoint an additional Independent Director Candidate to the board of directors no later
than fifteen (15) days after the Independent Director Interview Date (or such later date as Agent may agree to in writing in its sole
discretion).
5.23. Transformation
Plan.
(a) On
or prior to August 11, 2025 (or such later date as Agent may agree to in writing in its sole discretion), and thereafter as reasonably
requested by the Financial Advisor, the management team of the Administrative Borrower shall provide the Financial Advisor with a detailed
analysis of the selling, general and administrative expenses of the Loan Parties, broken out in detail by business unit and by Loan Party,
and such other information related to the Transformation Plan as reasonably requested by the Financial Advisor.
(b) The
management team of the Administrative Borrower shall consult with, and consider in good faith, any recommendations provided by the Financial
Advisor in connection with the Transformation Plan (it being understood and agreed that the ultimate discretion with respect to the Transformation
Plan, including the initiatives of the Transformation Plan and the implementation thereof, shall be retained by Administrative Borrower).
5.24. Management
Incentive Plans. After the Amendment No. 3 Closing Date, eachthe
Administrative Borrower will adopt management incentive and retention arrangements for its key personnel in connection with the
contemplation of its strategic alternatives.
6. NEGATIVE COVENANTS.
Each Borrower covenants and
agrees that, until the termination of all of the Commitments and the payment in full of the Obligations:
6.1. Indebtedness.
Each Loan Party will not, and will not permit any of its Subsidiaries to, create, incur, assume, suffer to exist, guarantee, or otherwise
become or remain, directly or indirectly, liable with respect to any Indebtedness, except for Permitted Indebtedness.
6.2. Liens.
Each Loan Party will not, and will not permit any of its Subsidiaries to, create, incur, assume, or suffer to exist, directly or indirectly,
any Lien on or with respect to any of its assets, of any kind, whether now owned or hereafter acquired, or any income or profits therefrom,
except for Permitted Liens.
-115-
6.3. Restrictions
on Fundamental Changes. Each Loan Party will not, and will not permit any of its Subsidiaries to,
(a) Other
than in order to consummate a Permitted Acquisition, enter into any merger, amalgamation, consolidation, reorganization, or recapitalization,
or reclassify its Equity Interests, except for (i) any merger or amalgamation between Loan Parties; provided, that a Borrower
must be the surviving entity of any such merger or amalgamation to which it is a party and no merger may occur between Comtech and any
other Loan Parties, (ii) any merger or amalgamation between a Loan Party and a Subsidiary of such Loan Party that is not a Loan Party
so long as such Loan Party is the surviving entity of any such merger or amalgamation, (iii) any merger or amalgamation between Subsidiaries
of any Loan Party that are not Loan Parties and (iv) any merger, consolidation, reorganization, or recapitalization, or reclassification
of its Equity Interests carried out in order to consummate a Permitted Disposition; provided, that in no event shall any Loan Party
merge or amalgamate with any other Person other than a US Loan Party or other Loan Party organized in the same jurisdiction as such Loan
Party unless, in each case, such Loan Party is the surviving entity,
(b) liquidate,
wind up, or dissolve itself (or suffer any liquidation or dissolution), except for (i) the liquidation or dissolution of non-operating
Subsidiaries of any Loan Party with nominal assets and nominal liabilities, (ii) the liquidation or dissolution of a Loan Party (other
than any Borrower) or any of its wholly-owned Subsidiaries (other than any Borrower) so long as all of the assets (including any interest
in any Equity Interests) of such liquidating or dissolving Loan Party or Subsidiary are transferred to a Loan Party that is not liquidating
or dissolving, or (iii) the liquidation or dissolution of a Subsidiary of any Loan Party that is not a Loan Party (other than any
such Subsidiary the Equity Interests of which (or any portion thereof) is subject to a Lien in favor of Agent) so long as all of the assets
of such liquidating or dissolving Subsidiary are transferred to a Subsidiary of a Loan Party that is not liquidating or dissolving, or
(c) suspend
or cease operating a substantial portion of its or their business, except as permitted pursuant to clauses (a) or (b) above
or in connection with a transaction permitted under Section 6.4.
6.4. Disposal
of Assets. Other than Permitted Dispositions or transactions expressly permitted by Sections 6.3 or 6.9, each Loan
Party will not, and will not permit any of its Subsidiaries to, convey, sell, lease, license, assign, transfer, or otherwise dispose of
any of its or their assets (including by an allocation of assets among newly divided limited liability companies pursuant to a "plan
of division").
6.5. Nature
of Business. Each Loan Party will not, and will not permit any of its Subsidiaries to, make any change in the nature of its or
their business as described in Schedule 6.5 to this Agreement or acquire any properties or assets that are not reasonably
related to the conduct of such business activities; provided, that the foregoing shall not prevent any Loan Party and its Subsidiaries
from engaging in any business that is reasonably related or ancillary to its or their business.
-116-
6.6. Prepayments,
Payments of Certain Indebtedness and Amendments. Each Loan Party will not, and will not permit any of its Subsidiaries to,
(a) Except
in connection with Refinancing Indebtedness permitted by Section 6.1,
(i) optionally
prepay, redeem, defease, purchase, or otherwise acquire or satisfy any Indebtedness of any Loan Party or its Subsidiaries, other than
(A) the Obligations in accordance with this Agreement, or (B) Permitted Intercompany Advances, or
(ii) make
any payment on account of (A) the Specified Preferred Subordinated Debt or (B) other Indebtedness that has been contractually
subordinated in right of payment to the Obligations if such payment is not permitted at such time under the subordination terms and conditions.
(b) Directly
or indirectly, amend, modify, or change any of the terms or provisions of:
(i) any
agreement, instrument, document, indenture, or other writing evidencing or concerning Permitted Indebtedness other than (A) the Obligations
in accordance with this Agreement, (B) Permitted Intercompany Advances, (C) Indebtedness permitted under clauses (c), (h), (j) and
(k) of the definition of Permitted Indebtedness, and (D) the Specified Preferred Subordinated Debt to the extent expressly permitted
by the Specified Preferred Subordination Agreement,
(ii) the
Governing Documents of any Loan Party or any of its Subsidiaries if the effect thereof, either individually or in the aggregate, could
reasonably be expected to be materially adverse to the interests of the Lenders,
(iii) the
Specified Preferred Equity Documents if the effect thereof could reasonably be expected to be adverse in any material respect to the interests
of the Lenders, or
(iv) any
Material Contract except to the extent that such amendment, modification, or change would not, individually or in the aggregate, reasonably
be expected to be materially adverse to the interests of the Lenders.
6.7. Restricted
Payments. Each Loan Party will not, and will not permit any of its Subsidiaries to, make any Restricted Payment; provided,
that so long as it is permitted by law,
(a) so
long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, the Borrowers and their Subsidiaries
may make distributions to Comtech for the sole purpose of allowing Comtech to, and Comtech shall use the proceeds thereof solely to make
distributions to former employees, officers, or directors of Comtech (or any spouses, ex-spouses, or estates of any of the foregoing)
on account of redemptions of Equity Interests of Comtech held by such Persons; provided, that the aggregate amount of such redemptions
made by Comtech during the term of this Agreement plus the amount of Indebtedness outstanding under clause (l) of the definition
of Permitted Indebtedness, does not exceed $1,000,000 in the aggregate,
-117-
(b) so
long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, Comtech may make distributions
to former employees, officers, or directors of Comtech (or any spouses, ex-spouses, or estates of any of the foregoing), solely in the
form of forgiveness of Indebtedness of such Persons owing to Comtech on account of repurchases of the Equity Interests of Comtech held
by such Persons; provided, that such Indebtedness was incurred by such Persons solely to acquire Equity Interests of Comtech,
(c) Comtech's
Subsidiaries may make distributions to Comtech (i) in an amount sufficient to pay franchise taxes and other fees required to maintain
the legal existence of the Loan Parties and their Subsidiaries to the extent actually used by Comtech to pay such taxes, costs and expenses,
and (ii) in an amount sufficient to pay out-of-pocket legal, accounting and filing costs and other expenses in the nature of overhead
in the ordinary course of business of the Loan Parties and their Subsidiaries, in the case of clause (ii) in an aggregate amount
not to exceed $1,000,000 in any fiscal year,
(d) Comtech
may make Restricted Payments consisting of in-kind dividends in respect of the Specified Preferred Equity made in accordance with Section 5
of the applicable Specified Preferred Equity COD,
(e) Solely
during the period prior to the first anniversary of this Agreement, Comtech may make distributions to former and current employees, officers,
or directors of Comtech (or any spouses, ex-spouses, or estates of any of the foregoing) on account of redemptions of Equity Interests
of Comtech held by such Persons in an amount sufficient to pay taxes arising from the from the sale by such Persons of such Equity Interests
so long as (A) no Default of Event of Default has occurred and is continuing or would result therefrom, and (B) Qualified Cash
is at least $20,000,000, calculated on a pro forma basis after giving effect to such distribution; provided, that the aggregate
amount of such distributions does not exceed $2,000,000 in the aggregate,
(f) any
Subsidiary may declare and pay dividends or make other distributions with respect to its Equity Interests, or make other Restricted Payments
in respect of its Equity Interests, in each case ratably to the holders of such Equity Interests (or, if not ratably, on a basis more
favorable to the Loan Parties),
(g) for
any taxable period for which the Borrowers or any of their respective Subsidiaries is a member (or disregarded as an entity that is separate
from such a member for applicable income or similar tax purposes) of a consolidated or similar income or similar tax group of which a
direct or indirect parent of any Borrower (other than Comtech) is the common parent or for which a Borrower (other than Comtech) is treated
as an entity that is disregarded as separate from a corporate parent for applicable income or similar Tax purposes, distributions to its
direct or indirect owner to pay the portion of the income Taxes of such Tax group or such corporate parent, as applicable, that are attributable
to the income of Borrower and/or its Subsidiaries, as applicable, in an amount not to exceed the amount of any U.S. federal, state, local
and/or non-U.S. income Taxes that Borrowers and/or their respective Subsidiaries would have paid for such taxable period had such entities
been a stand-alone corporate taxpayer or a stand-alone corporate group, provided that Comtech shall not be permitted to make any such
distributions, and
-118-
(h) Comtech
may make any Restricted Payments so long as (A) no Default of Event of Default has occurred and is continuing or would result therefrom,
(B) Liquidity is at least $35,000,000 (with at least $20,000,000 of Availability), calculated on a pro forma basis after giving effect
to such Restricted Payment, and (C) the Net Leverage Ratio (as of the last day of the period of four consecutive fiscal quarters
of the Borrower most recently ended for which financial statements have been delivered pursuant to Schedule 5.1(a) or 5.1(e)) is
less than 1.75 to 1.00, calculated on a pro forma basis after giving effect to such Restricted Payment.
6.8. Accounting
Methods. Each Loan Party will not, and will not permit any of its Subsidiaries to, modify or change its fiscal year or its method
of accounting (other than as may be required to conform to GAAP).
6.9. Investments.
Each Loan Party will not, and will not permit any of its Subsidiaries to, directly or indirectly, make or acquire any Investment or incur
any liabilities (including contingent obligations) for or in connection with any Investment except for Permitted Investments.
6.10. Transactions
with Affiliates. Each Loan Party will not, and will not permit any of its Subsidiaries to, directly or indirectly, enter into
or permit to exist any transaction with any Affiliate of any Loan Party or any of its Subsidiaries except for:
(a) transactions
(other than the payment of management, consulting, monitoring, or advisory fees) between such Loan Party or its Subsidiaries, on the one
hand, and any Affiliate of such Loan Party or its Subsidiaries, on the other hand, so long as such transactions (i) are fully disclosed
to Agent and Revolving Agent prior to the consummation thereof, if they involve one or more payments by such Loan Party or its Subsidiaries
in excess of $2,000,000 for any single transaction or series of related transactions, and (ii) are no less favorable, taken as a
whole, to such Loan Party or its Subsidiaries, as applicable, than would be obtained in an arm's length transaction with a non-Affiliate,
(b) any
indemnity provided for the benefit of directors (or comparable managers) of a Loan Party or one of its Subsidiaries so long as it has
been approved by such Loan Party's or such Subsidiary's board of directors (or comparable governing body) in accordance with applicable
law,
(c) the
payment of reasonable compensation, severance, or employee benefit arrangements to employees, officers, and outside directors (or similar
governing body) of a Loan Party or one of its Subsidiaries in the ordinary course of business and consistent with industry practice so
long as it has been approved by such Loan Party's or such Subsidiary's board of directors (or comparable governing body) in accordance
with applicable law,
(d) (i) transactions
solely among the Loan Parties, and (ii) transactions solely among Subsidiaries of Loan Parties that are not Loan Parties,
(e) transactions
with Permitted Holders pursuant to any agreement or arrangement set forth in (i) the Specified Preferred Equity Documents (including
the issuance or exchange of additional Equity Interests (other than Disqualified Equity Interests) thereunder), and (ii) the Specified
Preferred Subordinated Debt Documents,
-119-
(f) transactions
permitted by Section 6.3, Section 6.7, or Section 6.9,
(g) agreements
for the non-exclusive licensing of Intellectual Property, or distribution of products, in each case, among the Loan Parties and their
Subsidiaries for the purpose of the counterparty thereof operating its business, and agreements for the assignment of Intellectual Property
from any Loan Party or any of its Subsidiaries to any Loan Party,
(h) the
entering into of any Tax sharing agreement by or among entities that are members of the same consolidated, combined, unitary or similar
tax group, provided that payments thereunder are not restricted by Section 6.7, and
(i) issuances
of securities or other payments, awards or grants in cash, securities or otherwise to employees, officers or directors of the Loan Parties
or their Subsidiaries pursuant to, employment agreements, stock options and stock ownership plans held by such employees officers or directors
and not otherwise prohibited by this Agreement.
6.11. Use
of Proceeds. Each Loan Party will not, and will not permit any of its Subsidiaries to, use the proceeds of any Loan made hereunder
for any purpose other than (a) on the Closing Date, (i) to repay, in full, the outstanding principal, accrued interest, and
accrued fees and expenses owing under or in connection with the Existing Credit Facility and (ii) to pay the fees, costs, and expenses
incurred in connection with this Agreement, the other Loan Documents, and the transactions contemplated hereby and thereby, in each case,
as set forth in the Disbursement Letter, and (b) any other time after the Closing Date, consistent with the terms and conditions
hereof, for their lawful and permitted purposes; provided that (w) no part of the proceeds of a Borrowing of Revolving Loans
will be directly used to make any optional or mandatory prepayment on the Term Loan, (x) no part of the proceeds of the Loans will
be used to purchase or carry any such Margin Stock or to extend credit to others for the purpose of purchasing or carrying any such Margin
Stock or for any purpose that violates the provisions of Regulation T, U or X of the Board of Governors, (y) no part of the proceeds
of any Loan will be used, directly or, knowingly, indirectly, to make any payments to a Sanctioned Entity or a Sanctioned Person, to fund
any investments, loans or contributions in, or otherwise make such proceeds available to, a Sanctioned Entity or a Sanctioned Person,
to fund any operations, activities or business of a Sanctioned Entity or a Sanctioned Person, or in any other manner that would result
in a violation of Sanctions by any Person, and (z) that no part of the proceeds of any Loan will be used, directly or, knowingly,
indirectly, in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else
of value, to any Person in violation of any Sanctions, Anti-Corruption Laws or Anti-Money Laundering Laws. Notwithstanding the foregoing,
this section shall not be made by nor apply to any Person that is registered or created under the laws of Canada or any province or territory
thereof and that carries on business in whole or in part in Canada within the meaning of Section 2 of the Foreign Extraterritorial
Measures (United States) Order, 1992 passed under the Foreign Extraterritorial Measures Act (Canada) in so far as this section
would result in a violation of or conflict with the Foreign Extraterritorial Measures Act (Canada) or any similar law.
6.12. Limitation
on Issuance of Equity Interests. Except for the issuance or sale of Qualified Equity Interests by Comtech, each Borrower will
not, and will not permit any of its Subsidiaries to, issue or sell any of its Equity Interests (other than (a) Equity Interests issued
by a Subsidiary of a Loan Party to its direct parent company or (b) Equity Interests issued by a joint venture or other non-wholly-owned
Subsidiary pursuant to a transaction with respect to such Equity Interests permitted by Section 6.4 or Section 6.9).
-120-
6.13. Inventory
with Bailees. Each Borrower will not, and will not permit any of its Subsidiaries to, store its Inventory at any time with a bailee,
warehouseman, or similar party except as set forth on Schedule 4.24 (as such Schedule may be amended in accordance with Section 5.14).
6.14. Sale
Leaseback Transactions. Each Borrower will not, nor will it permit any Subsidiary to, enter into any arrangement, directly or
indirectly, whereby it shall sell or transfer any property, real or personal, used or useful in its business, whether now owned or hereafter
acquired, and thereafter rent or lease such property or other property that it intends to use for substantially the same purpose or purposes
as the property sold or transferred, except for any such sale of any fixed or capital assets by any Borrower or any Subsidiary that is
made for cash consideration in an amount not less than the fair value of such fixed or capital asset and is consummated within 180 days
after such Borrower or such Subsidiary acquires or completes the construction of such fixed or capital asset; provided that, if
such sale and leaseback results in a Capitalized Lease Obligation, such Capitalized Lease Obligation is permitted by Section 6.1
and any Lien made the subject of such Capitalized Lease Obligation is permitted by Section 6.2.
6.15. Employee
Benefits. Each Borrower will not, and will not permit any of its Subsidiaries to,
(a) Terminate,
or permit any ERISA Affiliate to terminate, any Pension Plan in a manner, or take any other action with respect to any Pension Plan, which
could reasonably be expected to result in any liability of any Loan Party or ERISA Affiliate to the PBGC.
(b) [Reserved].
(c) Permit
to exist, or allow any ERISA Affiliate to permit to exist, any accumulated funding deficiency within the meaning of Section 302 of
ERISA or Section 412 of the IRC, whether or not waived, with respect to any Pension Plan or all Pension Plans in the aggregate, that
in either case would reasonably be expected to have a Material Adverse Effect.
(d) [Reserved].
(e) Contribute
to or assume an obligation to contribute to, or permit any ERISA Affiliate to contribute to or assume an obligation to contribute to,
any Multiemployer Plan not set forth on Schedule 4.10 without advance notice to the Agent.
(f) Amend,
or permit any ERISA Affiliate to amend, a Pension Plan resulting in a material increase in current liability such that a Loan Party or
ERISA Affiliate is required to provide security to such Pension Plan under the IRC that would reasonably be expected to have a Material
Adverse Effect.
6.16. Non-Loan
Party Subsidiaries. Each Borrower will not permit any of their respective Subsidiaries that are not Loan Parties to own, or have
an exclusive license to use, any Intellectual Property that is material to the business of the Loan Parties.
-121-
6.17. Canadian
Pension Matters. Each Borrower will not permit any Canadian Loan Party or any of its Subsidiaries organized under the federal
laws of Canada or any province or territory thereto to:
(a) maintain,
sponsor, administer, contribute to, participate in or assume or incur any liability in respect of any Canadian Defined Benefit Pension
Plan or amalgamate with any Person if such Person, sponsors, administers, contributes to, participates in or has any liability in respect
of, any Canadian Defined Benefit Pension Plan; or
(b) terminate
any Canadian Pension Plan in a manner, or take any other action with respect to any Canadian Pension Plan, which could reasonably be expected
to result in a Material Adverse Effect.
6.18. Anti-Layering.
Neither Comtech nor any Subsidiary of Comtech will create or incur any Indebtedness which is subordinated or junior in right of payment
to any other Indebtedness of the Loan Parties, unless such Indebtedness is also subordinated or junior in right of payment, in the same
manner and to the same extent, to the Obligations.
6.19. Tax
Classification. No Loan Party shall, without the Agent's prior consent, change its classification for U.S. federal income tax
purposes (e.g., C corporation, partnership, disregarded entity, etc.) if such change would result in a Material Adverse Effect.
7. FINANCIAL COVENANTS.
Each Borrower covenants and
agrees that, until the termination of all of the Commitments and the payment in full of the Obligations, Borrowers will:
(a) Fixed
Charge Coverage Ratio. Have a Fixed Charge Coverage Ratio, measured on a quarter-end basis, of at least the required amount set forth
in the following table for the applicable period set forth opposite thereto:
Applicable Ratio
Applicable Period
1.30:1.0
For the 4 quarter period ending January 31, 2027, and for the 4 quarter period ending April 30, 2027
1.35:1.0
For the 4 quarter period ending July 31, 2027, and for the 4 quarter period ending on the last day of each fiscal quarter thereafter
(b) Net
Leverage Ratio. Have a Net Leverage Ratio, measured on a quarter-end basis, of not greater than the applicable ratio set forth in
the following table for the applicable date set forth opposite thereto:
Applicable Ratio
Applicable Date
2.75:1.0
January 31, 2027
2.75:1.0
April 30, 2027
2.65:1.0
July 31, 2027, and the last day of each fiscal quarter thereafter
-122-
(c) Minimum
EBITDA. Maintain TTM EBITDA, measured on a quarter-end basis, of at least the required amount set forth in the following table for
the applicable period set forth opposite thereto:
Applicable Amount
Applicable Period
$32,500,000
For the 4 quarter period ending January 31, 2027
$35,000,000
For the 4 quarter period ending April 30, 2027
$37,500,000
For the 4 quarter period ending July 31, 2027
$40,000,000
For the 4 quarter period ending October 31, 2027, and for the 4 quarter period ending on the last day of each fiscal quarter thereafter
(d) Minimum
Average Liquidity. Maintain Average Liquidity for the immediately preceding fiscal quarter period, measured on the last day of each
fiscal quarter for such fiscal quarter, of at least $15,000,000.
8. EVENTS OF DEFAULT.
Any one or more of the following
events shall constitute an event of default (each, an "Event of Default") under this Agreement:
8.1. Payments.
If Borrowers fail to pay when due and payable, or when declared due and payable, (a) all or any portion of the Obligations consisting
of interest, fees, or charges due the Lender Group, reimbursement of Lender Group Expenses, or other amounts (other than any portion thereof
constituting principal) constituting Obligations (including any portion thereof that accrues after the commencement of an Insolvency Proceeding,
regardless of whether allowed or allowable in whole or in part as a claim in any such Insolvency Proceeding), and such failure continues
for a period of three (3) Business Days, or (b) all or any portion of the principal of the Loans;
-123-
8.2. Covenants.
If any Loan Party or any of its Subsidiaries:
(a) fails
to perform or observe any covenant or other agreement contained in any of (i) Sections 3.6, 5.1, 5.2, 5.3
(solely if Comtech or any other Loan Party is not in existence or good standing in its jurisdiction of organization, as applicable), 5.6,
5.7 (solely if Comtech or any other Borrower refuses to allow Agent, Revolving Agent or their respective representatives or agents
to visit its respective properties, inspect its assets or books or records, examine and make copies of its books and records, or discuss
its affairs, finances, and accounts with officers and employees of any Borrower), 5.8, 5.10, 5.11, 5.13, 5.14,
5.15, 5.17, 5.20, 5.21, 5.22 or 5.23 of this Agreement, (ii) Section 6 of this
Agreement, (iii) Section 7 of this Agreement, (iv) Section 7 of the Guaranty and Security Agreement or (v) Section 7
of the Canadian Guarantee and Security Agreement;
(b) fails
to perform or observe any covenant or other agreement contained in any of Sections 5.3 (other than if Comtech or any other Loan
Party is not in existence or good standing in its jurisdiction of organization, as applicable), 5.4, 5.5, 5.12, 5.16,
5.18 or 5.19 of this Agreement and such failure continues for a period of fifteen (15) days after the earlier of (i) the
date on which such failure shall first become known to any officer of any Borrower, or (ii) the date on which written notice thereof
is given to Borrowers by Agent; or
(c) fails
to perform or observe any covenant or other agreement contained in this Agreement, or in any of the other Loan Documents, in each case,
other than any such covenant or agreement that is the subject of another provision of this Section 8 (in which event such
other provision of this Section 8 shall govern), and such failure continues for a period of thirty (30) days after the earlier
of (i) the date on which such failure shall first become known to any officer of any Borrower, or (ii) the date on which written
notice thereof is given to Borrowers by Agent;
8.3. Judgments.
If one or more judgments, orders, or awards for the payment of money involving an aggregate amount of $5,000,000, or more (except to the
extent covered (other than to the extent of customary deductibles) by insurance pursuant to which the insurer has not denied coverage)
is entered or filed against a Loan Party or any of its Subsidiaries, or with respect to any of their respective assets, and either (a) there
is a period of thirty (30) consecutive days at any time after the entry of any such judgment, order, or award during which (i) the
same is not discharged, satisfied, vacated, or bonded pending appeal, or (ii) a stay of enforcement thereof is not in effect, or
(b) enforcement proceedings are commenced upon such judgment, order, or award;
8.4. Voluntary
Bankruptcy. If an Insolvency Proceeding is commenced by a Loan Party or any of its Subsidiaries; provided, for the avoidance of
doubt, that an Insolvency Proceeding may be commenced for Beijing Comtech EF Data Equipment Repair Service Co., Ltd. after the Closing
Date;
8.5. Involuntary
Bankruptcy. If an Insolvency Proceeding is commenced against a Loan Party or any of its Subsidiaries and any of the following
events occur: (a) such Loan Party or such Subsidiary consents to the institution of such Insolvency Proceeding against it, (b) the
petition commencing the Insolvency Proceeding is not dismissed or stayed within 45 days, (c) in respect of each Loan Party other
than a UK Loan Party, the petition commencing the Insolvency Proceeding is not dismissed within sixty calendar days of the date of the
filing thereof, (d) an interim trustee is appointed to take possession of all or any substantial portion of the properties or assets
of, or to operate all or any substantial portion of the business of, such Loan Party or its Subsidiary, or (e) an order for relief
shall have been issued or entered therein; in the case of a UK Loan Party there shall be no Event of Default under this Section 8.5
if the Insolvency Proceeding is a winding-up petition which is frivolous or vexatious and is discharged, stayed or dismissed within 14
days of commencement;
-124-
8.6. Default
Under Other Agreements. If there is a default (a) under the Specified Preferred Subordinated Debt Documents or (b) in
one or more agreements to which a Loan Party or any of its Subsidiaries is a party with one or more third Persons relative to a Loan Party's
or any of its Subsidiaries' Indebtedness involving an aggregate amount of $5,000,000 or more, and such default under this clause (b) (x) occurs
at the final maturity of the obligations thereunder, or (y) results in a right by such third Person, irrespective of whether exercised,
to accelerate the maturity of such Loan Party's or its Subsidiary's obligations thereunder;
8.7. Representations.
If any warranty, representation, certificate, statement, or Record made herein or in any other Loan Document or delivered in writing to
Agent or any Lender in connection with this Agreement or any other Loan Document was untrue in any material respect (except that such
materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality
in the text thereof) as of the date of issuance or making or deemed making thereof;
8.8. Guaranty.
If the obligation of any Guarantor under the guaranty contained in the Guaranty and Security Agreement or the Canadian Guarantee and Security
Agreement, as applicable, is limited or terminated by operation of law or by such Guarantor (other than in accordance with the terms of
this Agreement) or if any Guarantor repudiates or revokes or purports to repudiate or revoke any such guaranty; provided that in
respect of any Foreign Subsidiary, this Event of Default shall be subject to the Legal Reservations and Perfection Requirements (in each
case, as applicable);
8.9. Security
Documents. If the Guaranty and Security Agreement, the Canadian Guarantee and Security Agreement, the Canadian Deed of Hypothec
or any other Loan Document that purports to create a Lien, shall, for any reason, cease to create a valid and perfected and, (except to
the extent of Permitted Liens which are non-consensual Permitted Liens, permitted purchase money Liens or the interests of lessors under
Capital Leases) first priority Lien on any material portion of the Collateral covered thereby, except as a result of (a) a disposition
of the applicable Collateral in a transaction permitted under this Agreement, (b) the release thereof as provided by Section 15.11,
or (c) the Agent's failure to maintain possession of any stock or other equity certificate, promissory note or other instrument delivered
to it under the Collateral Agreement; provided that in respect of any Foreign Subsidiary, this Event of Default shall be subject
to the Legal Reservations and Perfection Requirements (in each case, as applicable);
8.10. Loan
Documents. The validity or enforceability of any Loan Document shall at any time for any reason (other than solely as the result
of an action or failure to act on the part of Agent) be declared to be null and void, or a proceeding shall be commenced by a Loan Party
or its Subsidiaries, or by any Governmental Authority having jurisdiction over a Loan Party or its Subsidiaries, seeking to establish
the invalidity or unenforceability thereof, or a Loan Party or its Subsidiaries shall deny that such Loan Party or its Subsidiaries has
any liability or obligation purported to be created under any Loan Document; provided that in respect of any Foreign Subsidiary,
this Event of Default shall be subject to the Legal Reservations and Perfection Requirements (in each case, as applicable);
-125-
8.11. Change
of Control. A Change of Control shall occur;
8.12. ERISA.
The occurrence of any of the following events: (a) any Loan Party or ERISA Affiliate fails to make full payment when due of all amounts
which any Loan Party or ERISA Affiliate is required to pay as contributions, installments, or otherwise to or with respect to a Pension
Plan or Multiemployer Plan, and such failure could reasonably be expected to result in a Material Adverse Effect or result in a Lien on
the assets of any Loan Party under Section 303(k) or Section 4068 of ERISA or Section 430(k) of the IRC, (b) an
accumulated funding deficiency or funding shortfall occurs or exists, whether or not waived, with respect to any Pension Plan, individually
or in the aggregate, that could reasonably be expected to result in a Material Adverse Effect, (c) a Notification Event, which could
reasonably be expected to result in liability, either individually or in the aggregate, that could reasonably be expected to result in
a Material Adverse Effect, a payment liability of any Loan Party in excess of $5,000,000 or result in a Lien on the assets of any Loan
Party under Section 303(k) or Section 4068 of ERISA or Section 430(k) of the IRC, or (d) any Loan Party
or ERISA Affiliate completely or partially withdraws from one or more Multiemployer Plans and incurs Withdrawal Liability that could reasonably
be expected to result in a Material Adverse Effect or a payment liability of any Loan Party in excess of $5,000,000, or fails to make
any Withdrawal Liability payment when due;
8.13. Senior
Indebtedness. (i) The Obligations for any reason shall cease to constitute "Senior Indebtedness" or "Designated
Senior Indebtedness" (or any comparable terms) under, and as defined in the Specified Preferred Subordinated Debt Documents or
any documents evidencing or governing any subordinated Indebtedness of a Loan Party involving an aggregate outstanding principal amount
of $5,000,000 or more (other than as a result of the action or inaction of Agent or a Lender), or (ii) the subordination provisions
of the Specified Preferred Subordination Agreement or the documents evidencing or governing any subordinated Indebtedness of a Loan Party
involving an aggregate outstanding principal amount of $5,000,000 or more shall, in whole or in part, terminate, cease to be effective
or cease to be legally valid, binding and enforceable against any holder of the applicable subordinated Indebtedness (other than in accordance
with their terms);
8.14. Material
Contracts. Any Material Contract is cancelled, terminated, amended, restated or otherwise modified in a manner which has a Material
Adverse Effect; or
8.15. Conduct
of Business. If a Loan Party or any of its Subsidiaries is enjoined, restrained, or in any way prevented by court order from continuing
to conduct all or any material of the business affairs of Comtech and its Subsidiaries, taken as a whole.
-126-
9. RIGHTS AND REMEDIES.
9.1. Rights
and Remedies. Upon the occurrence and during the continuation of an Event of Default, Agent may, and, at the instruction of the
Required Lenders, shall, in addition to any other rights or remedies provided for hereunder or under any other Loan Document or by applicable
law, do any one or more of the following:
(a) by
written notice to Administrative Borrower, declare the principal of, and any and all accrued and unpaid interest and fees in respect of,
the Loans and all other Obligations (other than the Bank Product Obligations), whether evidenced by this Agreement or by any of the other
Loan Documents to be immediately due and payable, whereupon the same shall become and be immediately due and payable and Borrowers shall
be obligated to repay all of such Obligations in full, without presentment, demand, protest, or further notice or other requirements of
any kind, all of which are hereby expressly waived by each Borrower;
(b) by
written notice to Borrowers, declare the Commitments terminated, whereupon the Commitments shall immediately be terminated together with
any obligation of any Lender to make Loans; and
(c) exercise
all other rights and remedies available to Agent or the Lenders under the Loan Documents, under applicable law, or in equity; provided,
that with respect to any Event of Default resulting solely from failure of Borrowers to comply with the financial covenants set forth
in Section 7, neither Agent nor the Required Lenders may exercise the foregoing remedies in this Section 9.1 until
the date that is the earlier of (i) fifteen (15) Business Days after the day on which financial statements are required to be delivered
for the applicable fiscal quarter, and (ii) the date that Agent receives notice that there will not be a Curative Equity contribution
made for such fiscal quarter.
The foregoing to the contrary notwithstanding,
upon the occurrence of any Event of Default described in Section 8.4 or Section 8.5, in addition to the remedies
set forth above, without any notice to Borrowers or any other Person or any act by the Lender Group, the Commitments shall automatically
terminate and the Obligations (other than the Bank Product Obligations), inclusive of the principal of, and any and all accrued and unpaid
interest and fees in respect of, the Loans and all other Obligations (other than the Bank Product Obligations), whether evidenced by this
Agreement or by any of the other Loan Documents, shall automatically become and be immediately due and payable and Borrowers shall automatically
be obligated to repay all of such Obligations in full, without presentment, demand, protest, or notice or other requirements of any kind,
all of which are expressly waived by Borrowers.
9.2. Remedies
Cumulative. The rights and remedies of the Lender Group under this Agreement, the other Loan Documents, and all other agreements
shall be cumulative. The Lender Group shall have all other rights and remedies not inconsistent herewith as provided under the Code, the
PPSA, by law, or in equity. No exercise by the Lender Group of one right or remedy shall be deemed an election, and no waiver by the Lender
Group of any Default or Event of Default shall be deemed a continuing waiver. No delay by the Lender Group shall constitute a waiver,
election, or acquiescence by it.
-127-
9.3. Curative
Equity.
(a) Subject
to the limitations set forth in clauses (d) and (e) below, Borrowers may cure (and shall be deemed to have cured) an Event of
Default arising out of a breach of the financial covenants set forth in Section 7 (the "Specified Financial Covenants")
if they receive the cash proceeds of an investment of Curative Equity on or before the date that is fifteen (15) Business Days after the
date that is the earlier to occur of (i) the date on which the Compliance Certificate is delivered to Agent in respect of the fiscal
quarter with respect to which any such breach occurred (the "Specified Financial Quarter"), and (ii) the date on
which the Compliance Certificate is required to be delivered to Agent pursuant to Section 5.1 in respect of the Specified
Financial Quarter (such earlier date, the "Financial Statement Delivery Date"); provided, that Borrowers' right
to so cure an Event of Default shall be contingent on their timely delivery of such Compliance Certificate and financial statements for
the Specified Financial Quarter as required under Section 5.1.
(b) In
connection with a cure of an Event of Default under this Section 9.3, on or before the Financial Statement Delivery Date for
the Specified Financial Quarter, Borrowers shall deliver to Agent a certification of an Authorized Person which contains, or Borrowers
shall include in the Compliance Certificate for the Specified Financial Quarter: (i) an indication that Borrowers will receive proceeds
of Curative Equity for the Specified Financial Quarter and a statement setting forth the anticipated amount of such proceeds, (ii) a
calculation of the financial results or prospective financial results of Borrowers for the Specified Financial Quarter (including for
such purposes the proceeds of the Curative Equity (broken out separately) as deemed EBITDA or Qualified Cash, as applicable, as if received
on the last day of the Specified Financial Quarter), which shall confirm that on a pro forma basis after taking into account the receipt
of the Curative Equity proceeds as if received on the last day of the Specified Financial Quarter, Borrowers would have been or will be
in compliance with the Specified Financial Covenants for the Specified Financial Quarter, (iii) a certification that the full amount
of the cash proceeds of the equity investment made to Comtech in connection with such cure of the Event of Default shall be used to prepay
the Obligations in accordance with Section 2.4(e)(vi), regardless of whether the amount of such cash proceeds is in excess
of the amount that is sufficient to cause Borrowers to be in compliance with the Specified Financial Covenants for the Specified Financial
Quarter, and (iv) a certification that any amount of the cash proceeds of the equity investment in excess of the amount that is sufficient
to cause Borrowers to be in compliance with the Specified Financial Covenants for the Specified Financial Quarter shall not be included
in the calculation of EBITDA for any fiscal period.
(c) Borrowers
shall promptly notify Agent of its receipt of any proceeds of Curative Equity (and shall immediately apply the full amount of the cash
proceeds of such equity investment to the payment of the Obligations in the manner specified in Section 2.4(e)(vi)).
(d) Any
investment of Curative Equity shall be in immediately available funds and shall be in an amount that is sufficient to cause Borrowers
to be in compliance with the Specified Financial Covenants for the Specified Financial Quarter, calculated on a pro forma basis for such
purpose as if such amount of Curative Equity were additional EBITDA or Qualified Cash, as applicable, of Parent as at the last day of
the Specified Financial Quarter.
(e) Notwithstanding
anything to the contrary contained herein, regardless of whether an investment of Curative Equity is made prior to the applicable Financial
Statement Delivery Date, Borrowers' rights under this Section 9.3 may (i) be exercised not more than four times during
the term of this Agreement, (ii) not be exercised more than two times in any four consecutive fiscal quarter period and not more
than once during any two consecutive fiscal quarters. Any Curative Equity shall not exceed the amount necessary, after giving effect thereto,
to cause Borrowers to be in compliance with all of the Specified Financial Covenants for the Specified Financial Quarter. Regardless of
whether an investment of Curative Equity is made prior to the applicable Financial Statement Delivery Date, any amount of Curative Equity
that is in excess of the amount sufficient to cause Borrowers to be in compliance with all of the Specified Financial Covenants as at
such date shall not constitute Curative Equity.
-128-
(f) If
Borrowers have (i) delivered a certification or a Compliance Certificate conforming to the requirements of Section 9.3(b),
and (ii) received proceeds of an investment of Curative Equity in immediately available funds on or before the deadline set forth
in Section 9.3(a) and in an amount that is sufficient to cause Borrowers to be in compliance with the Specified Financial
Covenants for the Specified Financial Quarter, any Event of Default that occurs or has occurred and is continuing as a result of a breach
of the Specified Financial Covenants for the Specified Financial Quarter shall be deemed cured with no further action required by the
Required Lenders. Prior to satisfaction of the foregoing requirements of this Section 9.3(f), any Event of Default that occurs
or has occurred as a result of a breach of the Specified Financial Covenants shall be deemed to be continuing and, as a result, the Lenders
shall have no obligation to make additional loans or otherwise extend additional credit hereunder. In the event Borrowers do not cure
all financial covenant violations as provided in this Section 9.3, the existing Event(s) of Default shall continue unless
waived in writing by the Required Lenders in accordance herewith.
(g) To
the extent that Curative Equity is received and included in the calculation of the Specified Financial Covenants as deemed EBITDA or Qualified
Cash, as applicable, for any fiscal quarter pursuant to this Section 9.3, such Curative Equity shall be deemed to be EBITDA
or Qualified Cash, as applicable, for purposes of determining compliance with the Specified Financial Covenants for subsequent periods
that include such fiscal month. Curative Equity shall be disregarded for purposes of determining EBITDA for any pricing, financial covenant
based conditions or any baskets with respect to the covenants contained in this Agreement. In addition, notwithstanding any mandatory
prepayment of Obligations pursuant to Section 2.4(e)(vi), any Indebtedness so prepaid shall be deemed to remain outstanding
for purposes of determining pro forma or actual compliance with the Specified Financial Covenants or for determining any pricing, financial
covenant based conditions or baskets with respect to the covenants contained in this Agreement, in each case in the Specified Financial
Quarter.
10. WAIVERS; INDEMNIFICATION.
10.1. Demand;
Protest; etc. Each Borrower waives demand, protest, notice of protest, notice of default or dishonor, notice of payment and nonpayment,
nonpayment at maturity, release, compromise, settlement, extension, or renewal of documents, instruments, chattel paper, and guarantees
at any time held by the Lender Group on which any Borrower may in any way be liable.
10.2. The
Lender Group's Liability for Collateral. Each Borrower hereby agrees that: (a) so long as Agent complies with its obligations,
if any, under the Code and the PPSA, the Lender Group shall not in any way or manner be liable or responsible for: (i) the safekeeping
of the Collateral, (ii) any loss or damage thereto occurring or arising in any manner or fashion from any cause, (iii) any diminution
in the value thereof, or (iv) any act or default of any carrier, warehouseman, bailee, forwarding agency, or other Person, and (b) all
risk of loss, damage, or destruction of the Collateral shall be borne by the Loan Parties.
-129-
10.3. Indemnification.
Each Borrower shall pay, indemnify, defend, and hold the Agent-Related Persons, the Lender-Related Persons and each Participant (each,
an "Indemnified Person") harmless (to the fullest extent permitted by law) from and against any and all claims, demands,
suits, actions, investigations, proceedings, liabilities, fines, costs, penalties, and damages, and all reasonable and documented out-of-pocket
fees and disbursements of attorneys, experts, or consultants and all other costs and expenses actually incurred in connection therewith
or in connection with the enforcement of this indemnification (as and when they are incurred and irrespective of whether suit is brought),
at any time asserted against, imposed upon, or incurred by any of them (a) in connection with or as a result of or related to the
execution and delivery (provided, that Borrowers shall not be liable for costs and expenses (including reasonable and documented
out-of-pocket attorneys' fees) of any Lender (other than TCW or Wingspire) incurred in advising, structuring, drafting, reviewing, administering
or syndicating the Loan Documents), enforcement, performance, or administration (including any restructuring or workout with respect hereto)
of this Agreement, any of the other Loan Documents, or the transactions contemplated hereby or thereby or the monitoring of Comtech's
and its Subsidiaries' compliance with the terms of the Loan Documents (provided, that the indemnification in this clause (a) shall
not extend to (i) disputes solely between or among the Lenders that do not involve any acts or omissions of any Loan Party, or (ii) disputes
solely between or among the Lenders and their respective Affiliates that do not involve any acts or omissions of any Loan Party; it being
understood and agreed that the indemnification in this clause (a) shall extend to Agent and Revolving Agent (but not the Lenders
unless the dispute involves an act or omission of a Loan Party) relative to disputes between or among Agent and Revolving Lender on the
one hand, and one or more Lenders, or one or more of their Affiliates, on the other hand, or (iii) any claims for Taxes, which shall
be governed by Section 16, other than Taxes which relate to primarily non-Tax claims), (b) with respect to any actual
or prospective investigation, litigation, or proceeding related to this Agreement, any other Loan Document, the making of any Loans, or
the use of the proceeds of the Loans (irrespective of whether any Indemnified Person is a party thereto), or any act, omission, event,
or circumstance in any manner related thereto, and (c) in connection with or arising out of any presence or release of Hazardous
Materials at, on, under, to or from any assets or properties owned, leased or operated by any Loan Party or any of its Subsidiaries or
any Environmental Actions, Environmental Liabilities or Remedial Actions related in any way to any such assets or properties of any Loan
Party or any of its Subsidiaries (each and all of the foregoing, the "Indemnified Liabilities"). The foregoing to the
contrary notwithstanding, no Borrower shall have any obligation to any Indemnified Person under this Section 10.3 with respect
to any Indemnified Liability that a court of competent jurisdiction finally determines to have resulted from the gross negligence or willful
misconduct of such Indemnified Person or its officers, directors, employees, attorneys, or agents. This provision shall survive the termination
of this Agreement and the repayment in full of the Obligations. If any Indemnified Person makes any payment to any other Indemnified Person
with respect to an Indemnified Liability as to which Borrowers were required to indemnify the Indemnified Person receiving such payment,
the Indemnified Person making such payment is entitled to be indemnified and reimbursed by Borrowers with respect thereto. WITHOUT LIMITATION,
THE FOREGOING INDEMNITY SHALL APPLY TO EACH INDEMNIFIED PERSON WITH RESPECT TO INDEMNIFIED LIABILITIES WHICH IN WHOLE OR IN PART ARE
CAUSED BY OR ARISE OUT OF ANY NEGLIGENT ACT OR OMISSION OF SUCH INDEMNIFIED PERSON OR OF ANY OTHER PERSON.
-130-
11. NOTICES.
Unless otherwise provided in
this Agreement, all notices or demands relating to this Agreement or any other Loan Document shall be in writing and (except for financial
statements and other informational documents which may be sent by first-class mail, postage prepaid) shall be personally delivered or
sent by registered or certified mail (postage prepaid, return receipt requested), overnight courier, electronic mail (at such email addresses
as a party may designate in accordance herewith), or telefacsimile. In the case of notices or demands to any Loan Party or Agent, as the
case may be, they shall be sent to the respective address set forth below:
If to any Loan Party:
c/o COMTECH TELECOMMUNICATIONS CORP.
68 South Service Road, Suite 230
Melville, New York 11747
Attn:
Michael A. Bondi, Chief Financial Officer
E-mail:
Michael.Bondi@comtech.com
Telephone No.: (631) 962-7106
with copies to (which shall not constitute notice):
PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP
1285 Avenue of Americas
New York, New York 10019-6064
Attn:
David Tarr, Esq.
E-mail:
dtarr@paulweiss.com
Telephone No.: (212) 373-3375
If to Revolving Agent:
WINGSPIRE CAPITAL LLC
11720 Amber Park Drive, Suite 500
Alpharetta, Georgia 30009
Attn:
Brian Long
E-mail:
brian@wingspirecapital.com
Telephone No.: (678) 894-8111
with copies to (which shall not constitute notice):
BLANK ROME LLP
717 Texas Avenue, Suite 1400
Houston, Texas 77002
Attn:
Cassandra Mott
E-mail:
cassandra.mott@blankrome.com
Telephone No.: (713) 632-8693
-131-
If to Agent:
TCW ASSET MANAGEMENT COMPANY LLC
1251 Avenue of the Americas, Suite 4700
New York, New York 10020
Attn:
Christopher Halajian
E-mail:
Christopher.Halajian@tcw.com,
obaid.khan@tcw.com,
tcwservicing@allvuesystems.com and
TCW@alterdomus.com
Telephone No.: (212) 771-4000
with copies to (which shall not constitute notice):
ALTER DOMUS (US) LLC
225 West Washington Street, 9th Floor
Chicago, Illinois 60606
Attn:
Jacques Kolzow and Legal Department
Email:
jacques.kolzow@alterdomus.com and
legal@alterdomus.com
Fax No.: (312) 376-0751
and
GOLDBERG KOHN LTD.
55 East Monroe Street, Suite 3300
Chicago, Illinois 60603
Attn:
Seth Good, Esq.
E-mail:
seth.good@goldbergkohn.com
Telephone No.: (312) 863-7138
Fax No.: (312) 863-7838
Any party hereto may change
the address at which they are to receive notices hereunder, by notice in writing in the foregoing manner given to the other party. All
notices or demands sent in accordance with this Section 11, shall be deemed received on the earlier of the date of actual
receipt or three (3) Business Days after the deposit thereof in the mail; provided, that (a) notices sent by overnight
courier service shall be deemed to have been given when received, (b) notices by facsimile shall be deemed to have been given when
sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business
on the next Business Day for the recipient) and (c) notices by electronic mail shall be deemed received upon the sender's receipt
of an acknowledgment from the intended recipient (such as by the "return receipt requested" function, as available, return email
or other written acknowledgment).
-132-
12. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER.
(a) THE
VALIDITY OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (UNLESS EXPRESSLY PROVIDED TO THE CONTRARY IN ANOTHER LOAN DOCUMENT IN RESPECT
OF SUCH OTHER LOAN DOCUMENT), THE CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT HEREOF AND THEREOF, THE RIGHTS OF THE PARTIES HERETO
AND THERETO WITH RESPECT TO ALL MATTERS ARISING HEREUNDER OR THEREUNDER OR RELATED HERETO OR THERETO, AND ANY CLAIMS, CONTROVERSIES OR
DISPUTES ARISING HEREUNDER OR THEREUNDER OR RELATED HERETO OR THERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
(b) THE
PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE TRIED AND
LITIGATED ONLY IN THE STATE AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, FEDERAL COURTS LOCATED IN THE COUNTY OF NEW YORK, STATE OF
NEW YORK; PROVIDED, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT AGENT'S
OR REVOLVING AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE AGENT OR REVOLVING AGENT, AS APPLICABLE, ELECTS TO BRING SUCH
ACTION OR WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. EACH BORROWER AND EACH MEMBER OF THE LENDER GROUP WAIVE, TO THE EXTENT
PERMITTED UNDER APPLICABLE LAW, ANY RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE
EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 12(b).
(c) TO
THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH BORROWER AND EACH MEMBER OF THE LENDER GROUP HEREBY WAIVE THEIR RESPECTIVE RIGHTS, IF
ANY, TO A JURY TRIAL OF ANY CLAIM, CONTROVERSY, DISPUTE OR CAUSE OF ACTION DIRECTLY OR INDIRECTLY BASED UPON OR ARISING OUT OF ANY OF
THE LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS,
AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS (EACH A "CLAIM"). EACH BORROWER AND EACH MEMBER OF THE LENDER GROUP REPRESENT
THAT EACH HAS REVIEWED THIS WAIVER AND EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
IN THE EVENT OF LITIGATION, A COPY OF THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
(d) EACH
BORROWER HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN THE COUNTY
OF NEW YORK AND THE STATE OF NEW YORK, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS, OR FOR RECOGNITION
OR ENFORCEMENT OF ANY JUDGMENT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE
AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT AGENT MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST ANY LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
-133-
(e) NO
CLAIM MAY BE MADE BY ANY LOAN PARTY AGAINST AGENT, REVOLVING AGENT, ANY LENDER OR ANY AFFILIATE, DIRECTOR, OFFICER, EMPLOYEE, COUNSEL,
REPRESENTATIVE, AGENT, OR ATTORNEY-IN-FACT OF ANY OF THEM FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES
OR LOSSES IN RESPECT OF ANY CLAIM FOR BREACH OF CONTRACT OR ANY OTHER THEORY OF LIABILITY ARISING OUT OF OR RELATED TO THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY ACT, OMISSION, OR EVENT OCCURRING IN CONNECTION THEREWITH, AND EACH
LOAN PARTY HEREBY WAIVES, RELEASES, AND AGREES NOT TO SUE UPON ANY CLAIM FOR SUCH DAMAGES, WHETHER OR NOT ACCRUED AND WHETHER OR NOT KNOWN
OR SUSPECTED TO EXIST IN ITS FAVOR.
13. ASSIGNMENTS AND PARTICIPATIONS; SUCCESSORS.
13.1. Assignments
and Participations.
(a) (i)(A) Subject
to the conditions set forth in clause (a)(ii) below, any Lender may assign and delegate all or any portion of its rights and duties
under the Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees so long as such prospective
assignee is an Eligible Transferee (each, an "Assignee"), with the prior written consent (each such consent not be unreasonably
withheld or delayed) of:
(A) Administrative
Borrower; provided, that no consent of Administrative Borrower shall be required (1) if an Event of Default under Sections
8.1, 8.2(a)(i) (solely with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred
and is continuing or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons)
of a Lender; provided further, that Administrative Borrower shall be deemed to have consented to a proposed assignment unless it
objects thereto by written notice to Agent (with a copy to Revolving Agent with respect to Revolving Loans and Revolver Commitments) within
five (5) Business Days after having received notice thereof; and
(B) Agent
and, solely in the case of an assignment of Revolving Loans or Revolver Commitments, Revolving Agent; provided, that no such consent
shall be required in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender.
(ii) Assignments
shall be subject to the following additional conditions:
(A) no
assignment may be made to a natural person,
-134-
(B) no
assignment may be made to a Loan Party or an Affiliate of a Loan Party, any Permitted Holder, any Defaulting Lender or any of its Affiliates,
or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons,
(C) the
amount of the Commitments and/or Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan
Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is
delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to
(I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender,
or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that
the aggregate amount to be assigned to all such new Lenders is at least $5,000,000),
(D) each
partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender's rights and obligations under this
Agreement,
(E) the
parties to each assignment shall execute and deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and
Revolver Commitments) an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly
with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together
with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent (and
Revolving Agent if applicable) by such Lender and the Assignee,
(F) unless
waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee in the amount of $3,500,
and
(G) the
assignee, if it is not a Lender, shall deliver to Agent (and with a copy to Revolving Agent with respect to Revolving Loans and Revolver
Commitments) an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire") and all
information and other documents required under the Patriot Act.
(b) From
and after the date that Agent receives the executed Assignment and Acceptance and, if applicable, payment of the required processing fee,
(i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to
it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under
the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other
Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections
10.3 and 16) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance
covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents,
such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning
Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15
and Section 17.9(a).
-135-
(c) By
executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning
Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of
this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty
and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party
of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms
that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without
reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints
and authorizes Agent or Revolving Agent, as applicable, to take such actions and to exercise such powers under this Agreement and the
other Loan Documents as are delegated to Agent or Revolving Agent, as applicable, by the terms hereof and thereof, together with such
powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the
terms of this Agreement are required to be performed by it as a Lender.
(d) Immediately
upon Agent's receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b),
this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee
and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments
of the assigning Lender pro tanto.
(e) Any
Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a "Participant")
participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the
"Originating Lender") hereunder and under the other Loan Documents; provided, that (i) the Originating Lender
shall remain a "Lender" for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating
interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute
a "Lender" hereunder or under the other Loan Documents and the Originating Lender's obligations under this Agreement shall remain
unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers,
Agent, Revolving Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the
Originating Lender's rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant
any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect
to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement
or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is
participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release
all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents)
supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount
of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decrease
the amount or postpone the due dates of scheduled principal repayments or prepayments or premiums payable to such Participant through
such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or
an Affiliate of a Loan Party, and (vii) except as otherwise provided below with respect to amounts under Section 16, all amounts
payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding
under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event
of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under
this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant
shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Revolving
Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate
directly in the making of decisions by the Lenders among themselves. The Borrower agrees that each Participant shall be entitled
to the benefits of Section 16 (subject to the requirements and limitations therein, including the requirements under Section 16.2
(it being understood that the documentation required under Section 16.2 shall be delivered to the participating Lender)) to
the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of Section 16;
provided that such Participant shall not be entitled to receive any greater payment under Section 16, with respect
to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive
a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation or the Borrower
has specifically consented to such greater entitlement.
-136-
(f) In
connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or
pledge of, its rights under and interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose
all documents and information which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective
businesses.
(g) Any
other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion
of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal
Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal
Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such
pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a
party hereto.
(h) Agent
(with respect to Term Loans and Protective Advances) and Revolving Agent (with respect to Revolving Loans), in each case as a non-fiduciary
agent on behalf of Borrowers, shall maintain, or cause to be maintained, a register (collectively, the "Register") on
which it enters the name and address of each Lender as the registered owner of the applicable Loans (and the principal amount thereof
and stated interest thereon) held by such Lender. Other than in connection with an assignment by a Lender of all or any portion of its
portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the registered note, if any, evidencing
the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered
note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan (and the registered note, if any, evidencing
the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered
note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the
holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered
notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration
of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name
such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments
thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion
of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the
assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
-137-
(i) In
the event that a Lender sells participations in the Loan, such Lender, as a non-fiduciary agent on behalf of Borrowers, shall maintain
(or cause to be maintained) a register on which it enters the name of all participants in the Loans held by it (and the principal amount
(and stated interest thereon) of the portion of such Loans that is subject to such participations) (the "Participant Register").
A Loan (and the registered note, if any, evidencing the same) may be participated in whole or in part only by registration of such participation
on the Participant Register (and each registered note shall expressly so provide). Any participation of such Loan (and the registered
note, if any, evidencing the same) may be effected only by the registration of such participation on the Participant Register. No Lender
shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any
information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan
Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit
or other obligation is in registered form under the IRC, Section 5f.103-1(c) of the United States Treasury Regulations and any
successors thereto. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each
person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding
any notice to the contrary. For the avoidance of doubt, neither Agent (in its capacity as Agent) nor Revolving Agent (in its capacity
as Revolving Agent) shall have responsibility for maintaining a Participant Register. It is intended that the Register and each Participant
Register be maintained such that the Loans are in "registered form" for the purposes of the IRC.
(j) Agent
and Revolving Agent shall make a copy of the applicable Register (and each Lender shall make a copy of its Participant Register to the
extent it has one) available for review by Borrowers from time to time as Borrowers may reasonably request.
-138-
13.2. Successors.
This Agreement shall bind and inure to the benefit of the respective successors and assigns of each of the parties; provided, that
no Borrower may assign this Agreement or any rights or duties hereunder without the Lenders' prior written consent and any prohibited
assignment shall be absolutely void ab initio. No consent to assignment by the Lenders shall release any Borrower from its Obligations.
A Lender may assign this Agreement and the other Loan Documents and its rights and duties hereunder and thereunder pursuant to Section 13.1
and, except as expressly required pursuant to Section 13.1, no consent or approval by any Borrower is required in connection
with any such assignment.
13.3. Interlender
Matters. Agent, Revolving Agent and the Lenders have executed the Agreement Among Lenders on the Closing Date pursuant to which
such parties have agreed, among other things, to certain voting arrangements relative to matters requiring the approval of the Lenders,
to certain applications of payments and proceeds of Collateral to the Obligations, and to certain pricing arrangements. The rights and
duties of Agent, Revolving Agent and the Lenders, with respect to such matters, are subject to such agreement. Anything to the contrary
contained herein notwithstanding, any Person that is to become a party to this Agreement as a Lender (including, without limitation, by
assignment pursuant to Section 13.1) shall join the agreement described in this Section 13.3 on terms (including
with respect to its priority vis-à-vis other Lenders to payments and proceeds of Collateral and pricing arrangements) and conditions
satisfactory to Agent and existing Lenders as a condition to such Person becoming a party to this Agreement as a Lender.
14. AMENDMENTS; WAIVERS.
14.1. Amendments
and Waivers.
(a) No
amendment, waiver or other modification of any provision of this Agreement or any other Loan Document (other than the Fee Letter and the
Revolver Fee Letter), and no consent with respect to any departure by any Borrower therefrom, shall be effective unless the same shall
be in writing and signed by the Required Lenders (or by Agent at the written request of the Required Lenders) and the Loan Parties that
are party thereto and then any such waiver or consent shall be effective, but only in the specific instance and for the specific purpose
for which given; provided, that no such waiver, amendment, or consent shall, unless in writing and signed by all of the Lenders
directly affected thereby and all of the Loan Parties that are party thereto, do any of the following:
(i) increase
the amount of or extend the expiration date of any Commitment of any Lender,
(ii) postpone
or delay any date fixed by this Agreement or any other Loan Document for any payment of principal, interest, fees, or other amounts due
hereunder or under any other Loan Document,
(iii) reduce
the principal of, or the rate of interest on, any loan or other extension of credit hereunder, or reduce any fees or other amounts payable
hereunder or under any other Loan Document (except (y) in connection with the waiver of applicability of Section 2.6(c) (which
waiver shall be effective with the written consent of the Required Lenders), and (z) that any amendment or modification of defined
terms used in the financial covenants in this Agreement shall not constitute a reduction in the rate of interest or a reduction of fees
for purposes of this clause (iii)),
-139-
(iv) amend,
modify, or eliminate this Section or any provision of this Agreement providing for consent or other action by all Lenders,
(v) amend,
modify, or eliminate Section 3.1 or 3.2,
(vi) other
than as permitted by Section 15.11, release or contractually subordinate Agent's Lien in and to any of the Collateral,
(vii) amend,
modify, or eliminate the definitions of "Required Lenders" or "Pro Rata Share",
(viii) other
than in connection with a merger, amalgamation, liquidation, dissolution or sale of such Person expressly permitted by the terms hereof
or the other Loan Documents, release any Borrower or any Guarantor from any obligation for the payment of money or consent to the assignment
or transfer by any Borrower or any Guarantor of any of its rights or duties under this Agreement or the other Loan Documents,
(ix) amend,
modify, or eliminate any of the provisions of Section 2.4(b) or the definition of Application Event, Section 13.1(a)(i)(A) or
(B), or this Section 14.1, or
(x) at
any time that any Real Property is included in the Collateral, add, increase, renew or extend any Loan or Commitment hereunder until the
completion of flood due diligence, documentation and coverage as required by the Flood Laws or as otherwise satisfactory to all Lenders;
(b) No
amendment, waiver, modification, or consent shall amend, modify, waive, or eliminate,
(i) the
definition of, or any of the terms or provisions of, the Fee Letter, without the written consent of Agent and Borrowers (and shall not
require the written consent of any of the Lenders),
(ii) the
definition of, or any of the terms or provisions of, the Revolver Fee Letter, without the written consent of Revolving Agent and Borrowers
(and shall not require the written consent of any of the Lenders),
(iii) the
definition of "Availability", "Borrowing Base", "Reserves" or any other definition used in the determination
of the amount of credit available under the Borrowing Base or Exhibit B-1, in each case without the written consent of the Required
Revolving Lenders,
(iv) permit
the assignment or transfer by any Borrower of its rights and obligations under this Agreement or the other Loan Documents without the
written consent of each Lender,
-140-
(v) any
provision of Section 15 pertaining to Agent or Revolving Agent, or any other rights or duties of Agent or Revolving Agent
under this Agreement or the other Loan Documents, without the written consent of Agent or Revolving Agent, as applicable, Borrowers, and
the Required Lenders, or
(vi) Section 5.7,
without the written consent of Agent and Revolving Agent;
(c) Anything
in this Section 14.1 to the contrary notwithstanding, (i) any amendment, modification, elimination, waiver, consent,
termination, or release of, or with respect to, any provision of this Agreement or any other Loan Document that relates only to the relationship
of the Lender Group among themselves, and that does not affect the rights or obligations of any Loan Party, shall not require consent
by or the agreement of any Loan Party, (ii) any amendment, waiver, modification, elimination, or consent of or with respect to any
provision of this Agreement or any other Loan Document may be entered into without the consent of, or over the objection of, any Defaulting
Lender other than any of the matters governed by Section 14.1(a)(i) through (iii) that affect such Lender,
(iii) any amendment contemplated by Section 2.12(d)(iii) of this Agreement in connection with a Benchmark Transition
Event shall be effective as contemplated by such Section 2.12(d)(iii) hereof and (iv) any amendment contemplated
by Section 2.6(g) of this Agreement in connection with the use or administration of Term SOFR shall be effective as contemplated
by such Section 2.6(g).
14.2. Replacement
of Certain Lenders.
(a) If
(i) any action to be taken by the Lender Group or Agent hereunder requires the consent, authorization, or agreement of all Lenders
or all Lenders affected thereby and if such action has received the consent, authorization, or agreement of the Required Lenders but not
of all Lenders or all Lenders affected thereby, or (ii) any Lender makes a claim for compensation under Section 16, then
Borrowers or Agent, upon at least five (5) Business Days prior irrevocable notice, may permanently replace any Lender that failed
to give its consent, authorization, or agreement (a "Non-Consenting Lender") or any Lender that made a claim for compensation
under Section 16 (a "Tax Lender") with one or more Replacement Lenders, and the Non-Consenting Lender or Tax Lender,
as applicable, shall have no right to refuse to be replaced hereunder; provided, however, that in the case of (a)(ii) above,
such replacement must have the effect of reducing or eliminating the compensation otherwise owing under Section 16. Such notice
to replace the Non-Consenting Lender or Tax Lender, as applicable, shall specify an effective date for such replacement, which date shall
not be later than fifteen (15) Business Days after the date such notice is given. The replacement of such Non-Consenting Lender or Tax
Lender shall not be required if, prior thereto, the circumstances entitling the Borrower or the Agent to require such replacement cease
to apply.
-141-
(b) Prior
to the effective date of such replacement, the Non-Consenting Lender or Tax Lender, as applicable, and each Replacement Lender shall execute
and deliver an Assignment and Acceptance, subject only to the Non-Consenting Lender or Tax Lender, as applicable, being repaid in full
its share of the outstanding Obligations (without any premium or penalty of any kind whatsoever, but including (i) all interest,
fees and other amounts that may be due in payable in respect thereof and (ii) Funding Losses). If the Non-Consenting Lender or Tax
Lender, as applicable, shall refuse or fail to execute and deliver any such Assignment and Acceptance prior to the effective date of such
replacement, Agent may, but shall not be required to, execute and deliver such Assignment and Acceptance in the name or and on behalf
of the Non-Consenting Lender or Tax Lender, as applicable, and irrespective of whether Agent executes and delivers such Assignment and
Acceptance, the Non-Consenting Lender or Tax Lender, as applicable, shall be deemed to have executed and delivered such Assignment and
Acceptance. The replacement of any Non-Consenting Lender or Tax Lender, as applicable, shall be made in accordance with the terms of Section 13.1.
Until such time as one or more Replacement Lenders shall have acquired all of the Obligations, the Commitments, and the other rights and
obligations of the Non-Consenting Lender or Tax Lender, as applicable, hereunder and under the other Loan Documents, the Non-Consenting
Lender or Tax Lender, as applicable, shall remain obligated to make the Non-Consenting Lender's or Tax Lender's, as applicable, Pro Rata
Share of Loans.
14.3. No
Waivers; Cumulative Remedies. No failure by Agent, Revolving Agent or any Lender to exercise any right, remedy, or option under
this Agreement or any other Loan Document, or delay by Agent, Revolving Agent or any Lender in exercising the same, will operate as a
waiver thereof. No waiver by Agent, Revolving Agent or any Lender will be effective unless it is in writing, and then only to the extent
specifically stated. No waiver by Agent, Revolving Agent or any Lender on any occasion shall affect or diminish Agent's, Revolving Agent's
and each Lender's rights thereafter to require strict performance by Borrowers of any provision of this Agreement. Agent's, Revolving
Agent's and each Lender's rights under this Agreement and the other Loan Documents will be cumulative and not exclusive of any other right
or remedy that Agent, Revolving Agent or any Lender may have.
-142-
15. AGENT; THE LENDER GROUP.
15.1. Appointment
and Authorization of Agent and Revolving Agent. Each Lender hereby designates and appoints TCW as its administrative and collateral
agent, and Wingspire as its revolving agent, under this Agreement and the other Loan Documents, and each Lender hereby irrevocably authorizes
(and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to designate, appoint, and authorize) Agent
or Revolving Agent, as applicable, to execute and deliver each of the other Loan Documents on its behalf and to take such other action
on its behalf under the provisions of this Agreement and each other Loan Document and to exercise such powers and perform such duties
as are expressly delegated to Agent or Revolving Agent, as applicable, by the terms of this Agreement or any other Loan Document, together
with such powers as are reasonably incidental thereto. Each of Agent and Revolving Agent agrees to act as agent for and on behalf of the
Lenders (and the Bank Product Providers) on the conditions contained in this Section 15. Any provision to the contrary contained
elsewhere in this Agreement or in any other Loan Document notwithstanding, neither Agent nor Revolving Agent shall have any duties or
responsibilities, except those expressly set forth herein or in the other Loan Documents, nor shall Agent or Revolving Agent have or be
deemed to have any fiduciary relationship with any Lender (or Bank Product Provider), and no implied covenants, functions, responsibilities,
duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against Agent or Revolving
Agent. Without limiting the generality of the foregoing, the use of the term "agent" in this Agreement or the other Loan Documents
with reference to Agent or Revolving Agent is not intended to connote any fiduciary or other implied (or express) obligations arising
under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create
or reflect only a representative relationship between independent contracting parties. Each Lender hereby further authorizes (and by entering
into a Bank Product Agreement, each Bank Product Provider shall be deemed to authorize) each of Agent and Revolving Agent, as applicable,
to act as the secured party under each of the Loan Documents that create a Lien on any item of Collateral. Without limiting the powers
of the Agent as aforesaid, for the purposes of holding any hypothec granted pursuant to the laws of the Province of Québec, each
Lender hereby irrevocably appoints and authorizes the Agent and, to the extent necessary, ratifies the appointment and authorization of
the Agent, to act as the hypothecary representative of the Agent, the Revolving Agent, each Lender and each Bank Product Provider from
time to time as contemplated under Article 2692 of the Civil Code of Quebec, and to enter into, to take and to hold on their behalf,
and for their benefit, any hypothec, and to exercise such powers and duties that are conferred upon the Agent under any related deed of
hypothec. The Agent shall (a) have the sole and exclusive right and authority to exercise, except as may be otherwise specifically
restricted by the terms hereof, all rights and remedies given to the Agent in its capacity as hypothecary representative pursuant to any
such deed of hypothec and applicable law and (b) benefit from and be subject to all provisions hereof with respect to the Agent mutatis
mutandis, including, without limitation, all such provisions with respect to the liability or responsibility to and indemnification by
Lenders and Loan Parties. Any person who becomes the Agent, the Revolving Agent, a Lender or a Bank Product Provider in accordance with
the terms of this Agreement shall be deemed to have consented to and confirmed the Agent as the person acting as hypothecary representative
holding the aforesaid hypothecs as aforesaid and to have ratified as of the date it becomes Agent, Revolving Agent, a Lender or a Bank
Product Provider, all actions taken by the Agent in such capacity. The substitution of the Agent pursuant to the provisions of this Section 15
shall also constitute the substitution of the Agent as hypothecary representative as aforesaid without any further act or formality being
required to appoint such successor Agent as the successor hypothecary representative for the purposes of any then existing deeds of hypothec.
The execution by the Agent, in the capacity as hypothecary representative for the Agent, Revolving Agent, the Lenders and Bank Product
Providers, prior to the date of this Agreement of any deeds of hypothec is hereby ratified and confirmed. Except as expressly otherwise
provided in this Agreement, each of Agent and Revolving Agent shall have and may use its sole discretion with respect to exercising or
refraining from exercising any discretionary rights or taking or refraining from taking any actions that Agent or Revolving Agent expressly
is entitled to take or assert under or pursuant to this Agreement and the other Loan Documents. Without limiting the generality of the
foregoing, or of any other provision of the Loan Documents that provides rights or powers to Agent, Lenders agree that Agent or Revolving
Agent, as applicable, shall have the right to exercise the following powers as long as this Agreement remains in effect: (a) maintain,
in accordance with its customary business practices, ledgers and records reflecting the status of the Obligations, the Collateral, payments
and proceeds of Collateral, and related matters, (b) execute or file any and all financing or similar statements or notices, amendments,
renewals, supplements, documents, instruments, proofs of claim, notices and other written agreements with respect to the Loan Documents,
or to take any other action with respect to any Collateral or Loan Documents which may be necessary to perfect, and maintain perfected,
the security interests and Liens upon Collateral pursuant to the Loan Documents, (c) make Loans, for itself or on behalf of Lenders,
as provided in the Loan Documents, (d) exclusively receive, apply, and distribute payments and proceeds of the Collateral as provided
in the Loan Documents, (e) open and maintain such bank accounts and cash management arrangements as Agent deems necessary and appropriate
in accordance with the Loan Documents for the foregoing purposes, (f) perform, exercise, and enforce any and all other rights and
remedies of the Lender Group with respect to any Loan Party or its Subsidiaries, the Obligations, the Collateral, or otherwise related
to any of same as provided in the Loan Documents, and (g) incur and pay such Lender Group Expenses as Agent or Revolving Agent, as
applicable, may deem necessary or appropriate for the performance and fulfillment of its functions and powers pursuant to the Loan Documents.
-143-
15.2. Delegation
of Duties. Each of Agent and Revolving Agent may execute any of their respective duties under this Agreement or any other Loan
Document by or through agents, employees or attorneys in fact and shall be entitled to advice of counsel concerning all matters pertaining
to such duties. Neither Agent nor Revolving Agent shall be responsible for the negligence or misconduct of any agent or attorney in fact
that it selects as long as such selection was made without gross negligence or willful misconduct.
15.3. Liability
of Agent. None of the Agent-Related Persons shall (a) be liable for any action taken or omitted to be taken by any of them
under or in connection with this Agreement or any other Loan Document or the transactions contemplated hereby (except for its own gross
negligence or willful misconduct), or (b) be responsible in any manner to any of the Lenders (or Bank Product Providers) for any
recital, statement, representation or warranty made by any Loan Party or any of its Subsidiaries or Affiliates, or any officer or director
thereof, contained in this Agreement or in any other Loan Document, or in any certificate, report, statement or other document referred
to or provided for in, or received by Agent or Revolving Agent under or in connection with, this Agreement or any other Loan Document,
or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document, or for any failure
of any Loan Party or its Subsidiaries or any other party to any Loan Document to perform its obligations hereunder or thereunder. No Agent-Related
Person shall be under any obligation to any Lenders (or Bank Product Providers) to ascertain or to inquire as to the observance or performance
of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document, or to inspect the books and records
or properties of any Loan Party or its Subsidiaries. No Agent-Related Person shall have any liability to any Lender, and Loan Party or
any of their respective Affiliates if any request for a Loan or other extension of credit was not authorized by the applicable Borrower.
Neither Agent nor Revolving Agent shall be required to take any action that, in its opinion or in the opinion of its counsel, may expose
it to liability or that is contrary to any Loan Document or applicable law or regulation.
-144-
15.4. Reliance
by Agent and Revolving Agent. Agent and Revolving Agent shall be entitled to rely, and shall be fully protected in relying, upon
any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, telefacsimile or other electronic method of transmission,
telex or telephone message, statement or other document or conversation believed by it to be genuine and correct and to have been signed,
sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including counsel to Borrowers or counsel
to any Lender), independent accountants and other experts selected by Agent or Revolving Agent, as applicable. Each of Agent and Revolving
Agent shall be fully justified in failing or refusing to take any action under this Agreement or any other Loan Document unless Agent
or Revolving Agent, as applicable, shall first receive such advice or concurrence of the Lenders as it deems appropriate and until such
instructions are received, Agent or Revolving Agent, as applicable, shall act, or refrain from acting, as it deems advisable. If Agent
or Revolving Agent so requests, it shall first be indemnified to its reasonable satisfaction by the Lenders (and, if it so elects, the
Bank Product Providers) against any and all liability and expense that may be incurred by it by reason of taking or continuing to take
any such action. Each of Agent and Revolving Agent shall in all cases be fully protected in acting, or in refraining from acting, under
this Agreement or any other Loan Document in accordance with a request or consent of the Required Lenders and such request and any action
taken or failure to act pursuant thereto shall be binding upon all of the Lenders (and Bank Product Providers).
15.5. Notice
of Default or Event of Default. Neither Agent nor Revolving Agent shall be deemed to have knowledge or notice of the occurrence
of any Default or Event of Default, except with respect to defaults in the payment of principal, interest, fees, and expenses required
to be paid to Agent for the account of the Lenders and, except with respect to Events of Default of which Agent has actual knowledge,
unless Agent shall have received written notice from a Lender or Borrowers referring to this Agreement, describing such Default or Event
of Default, and stating that such notice is a "notice of default." Agent promptly will notify the Lenders of its receipt of
any such notice or of any Event of Default of which Agent has actual knowledge. If any Lender obtains actual knowledge of any Event of
Default, such Lender promptly shall notify the other Lenders and Agent of such Event of Default. Each Lender shall be solely responsible
for giving any notices to its Participants, if any. Subject to Section 15.4, Agent or Revolving Agent, as applicable, shall
take such action with respect to such Default or Event of Default as may be requested by the Required Lenders in accordance with Section 9;
provided, that unless and until Agent or Revolving Agent, as applicable, has received any such request, Agent or Revolving Agent,
as applicable, may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default
or Event of Default as it shall deem advisable.
-145-
15.6. Credit
Decision. Each Lender (and Bank Product Provider) acknowledges that none of the Agent-Related Persons has made any representation
or warranty to it, and that no act by Agent or Revolving Agent hereinafter taken, including any review of the affairs of any Loan Party
and its Subsidiaries or Affiliates, shall be deemed to constitute any representation or warranty by any Agent-Related Person to any Lender
(or Bank Product Provider). Each Lender represents (and by entering into a Bank Product Agreement, each Bank Product Provider shall be
deemed to represent) to Agent and Revolving Agent that it has, independently and without reliance upon any Agent-Related Person and based
on such due diligence, documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business,
prospects, operations, property, financial and other condition and creditworthiness of each Borrower or any other Person party to a Loan
Document, and all applicable bank regulatory laws relating to the transactions contemplated hereby, and made its own decision to enter
into this Agreement and to extend credit to Borrowers. Each Lender also represents (and by entering into a Bank Product Agreement, each
Bank Product Provider shall be deemed to represent) that it will, independently and without reliance upon any Agent-Related Person and
based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals
and decisions in taking or not taking action under this Agreement and the other Loan Documents, and to make such investigations as it
deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness
of each Borrower or any other Person party to a Loan Document. Except for notices, reports, and other documents expressly herein required
to be furnished to the Lenders by Agent, Agent shall not have any duty or responsibility to provide any Lender (or Bank Product Provider)
with any credit or other information concerning the business, prospects, operations, property, financial and other condition or creditworthiness
of any Borrower or any other Person party to a Loan Document that may come into the possession of any of the Agent-Related Persons. Each
Lender acknowledges (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to acknowledge) that neither
Agent nor Revolving Agent has any duty or responsibility, either initially or on a continuing basis (except to the extent, if any, that
is expressly specified herein) to provide such Lender (or Bank Product Provider) with any credit or other information with respect to
any Borrower, its Affiliates or any of their respective business, legal, financial or other affairs, and irrespective of whether such
information came into Agent's, Revolving Agent's or their respective Affiliates' or representatives' possession before or after the date
on which such Lender became a party to this Agreement (or such Bank Product Provider entered into a Bank Product Agreement).
15.7. Costs
and Expenses; Indemnification. Each of Agent and Revolving Agent may incur and pay Lender Group Expenses to the extent Agent or
Revolving Agent, as applicable, reasonably deems necessary or appropriate for the performance and fulfillment of its functions, powers,
and obligations pursuant to the Loan Documents, including court costs, attorneys' fees and expenses, fees and expenses of financial accountants,
advisors, consultants, and appraisers, costs of collection by outside collection agencies, auctioneer fees and expenses, and costs of
security guards or insurance premiums paid to maintain the Collateral, whether or not Borrowers are obligated to reimburse Agent or Lenders
for such expenses pursuant to this Agreement or otherwise. Each of Agent and Revolving Agent is authorized and directed to deduct and
retain sufficient amounts from payments or proceeds of the Collateral received by Agent or Revolving Agent, as applicable, to reimburse
Agent or Revolving Agent, as applicable, for such out-of-pocket costs and expenses prior to the distribution of any amounts to Lenders
(or Bank Product Providers). In the event Agent or Revolving Agent, as applicable, is not reimbursed for such costs and expenses by the
Loan Parties and their Subsidiaries, each Lender hereby agrees that it is and shall be obligated to pay to Agent or Revolving Agent, as
applicable, such Lender's ratable share thereof. Whether or not the transactions contemplated hereby are consummated, each of the Lenders,
on a ratable basis, shall indemnify and defend the Agent-Related Persons (to the extent not reimbursed by or on behalf of Borrowers and
without limiting the obligation of Borrowers to do so) from and against any and all Indemnified Liabilities; provided, that no
Lender shall be liable for the payment to any Agent-Related Person of any portion of such Indemnified Liabilities resulting solely from
such Person's gross negligence or willful misconduct nor shall any Lender be liable for the obligations of any Defaulting Lender in failing
to make a Loan or other extension of credit hereunder. Without limitation of the foregoing, each Lender shall reimburse Agent or Revolving
Agent, as applicable, upon demand for such Lender's ratable share of any costs or out of pocket expenses (including attorneys, accountants,
advisors, and consultants fees and expenses) incurred by Agent or Revolving Agent, as applicable, in connection with the preparation,
execution, delivery, administration, modification, amendment, or enforcement (whether through negotiations, legal proceedings or otherwise)
of, or legal advice in respect of rights or responsibilities under, this Agreement or any other Loan Document to the extent that Agent
or Revolving Agent, as applicable, is not reimbursed for such expenses by or on behalf of Borrowers. The undertaking in this Section shall
survive the payment of all Obligations hereunder and the resignation or replacement of Agent or Revolving Agent, as applicable.
-146-
15.8. Agent
and Revolving Agent in Individual Capacity. TCW and its Affiliates and Wingspire and its Affiliates may make loans to, accept
deposits from, acquire Equity Interests in, and generally engage in any kind of banking, trust, financial advisory, underwriting, or other
business with any Loan Party and its Subsidiaries and Affiliates and any other Person party to any Loan Document as though TCW were not
Agent and Wingspire were not Revolving Agent hereunder, and, in each case, without notice to or consent of the other members of the Lender
Group. The other members of the Lender Group acknowledge (and by entering into a Bank Product Agreement, each Bank Product Provider shall
be deemed to acknowledge) that, pursuant to such activities, TCW or its Affiliates Wingspire or its Affiliates may receive information
regarding a Loan Party or its Affiliates or any other Person party to any Loan Documents that is subject to confidentiality obligations
in favor of such Loan Party or such other Person and that prohibit the disclosure of such information to the Lenders (or Bank Product
Providers), and the Lenders acknowledge (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to
acknowledge) that, in such circumstances (and in the absence of a waiver of such confidentiality obligations, which waiver Agent will
use its reasonable best efforts to obtain), Agent shall not be under any obligation to provide such information to them. The terms "Lender"
and "Lenders" include each of TCW and Wingspire in their respective individual capacities.
15.9. Successor
Agent and Revolving Agent.Each of Agent and Revolving Agent may resign as Agent or Revolving Agent, as applicable, upon 30 days
(ten days if an Event of Default has occurred and is continuing) prior written notice to the Lenders (unless such notice is waived by
the Required Lenders) and Borrowers (unless such notice is waived by Borrowers or a Default or Event of Default has occurred and is continuing)
and without any notice to the Bank Product Providers. If Agent or Revolving Agent resigns under this Agreement, the Required Term Loan
Lenders or the Required Revolving Lenders, as applicable, shall be entitled to appoint a successor Agent or Revolving Agent, as applicable,
for the Lenders (and the Bank Product Providers), with the consent of (i) so long as no Event of Default has occurred and is continuing,
Administrative Borrower and (ii) in the case of a the appointment of a successor Revolving Agent, Agent, in each case, such consent
not to be unreasonably withheld, delayed, or conditioned. If no successor Agent or Revolving Agent is appointed prior to the effective
date of the resignation of Agent or Revolving Agent, as applicable, Agent or Revolving Agent, as applicable, may appoint a successor Agent
or Revolving Agent, as applicable, after consulting with the Lenders, Borrowers and, in the case of a the appointment of a successor Revolving
Agent, Agent. If Agent or Revolving Agent, as applicable, has materially breached or failed to perform any material provision of this
Agreement or of applicable law, the Required Term Loan Lenders or Required Revolving Lenders, as applicable, may agree in writing to remove
and replace Agent or Revolving Agent, as applicable, with a successor Agent or Revolving Agent, as applicable, from among the Term Loan
Lenders or the Revolving Lenders, as applicable, with the consent of (i) so long as no Event of Default has occurred and is continuing,
Administrative Borrower and (ii) in the case of a the appointment of a successor Revolving Agent, Agent, in each case, such consent
not to be unreasonably withheld, delayed, or conditioned. In any such event, upon the acceptance of its appointment as successor Agent
or Revolving Agent, as applicable, hereunder, such successor Agent or Revolving Agent, as applicable, shall succeed to all the rights,
powers, and duties of the retiring Agent or Revolving Agent, as applicable, and the term "Agent" or "Revolving Agent",
as applicable, shall mean such successor Agent or Revolving Agent, as applicable, and the retiring Agent's or Revolving Agent's, as applicable,
appointment, powers, and duties as Agent or Revolving Agent, as applicable, shall be terminated. After any retiring Agent's or Revolving
Agent's, as applicable, resignation hereunder as Agent or Revolving Agent, as applicable, the provisions of this Section 15
shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Agent under this Agreement. If no successor
Agent or Revolving Agent, as applicable, has accepted appointment as Agent or Revolving Agent, as applicable, by the date which is 30
days following a retiring Agent's or Revolving Agent's, as applicable, notice of resignation, the retiring Agent's or Revolving Agent's,
as applicable, resignation shall nevertheless thereupon become effective and the Lenders shall perform all of the duties of Agent or Revolving
Agent, as applicable, hereunder until such time, if any, as the Lenders appoint a successor Agent or Revolving Agent, as applicable, as
provided for above.
-147-
15.10. Lender
in Individual Capacity. Any Lender and its respective Affiliates may make loans to, accept deposits from, acquire Equity Interests
in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with any Loan Party and its
Subsidiaries and Affiliates and any other Person party to any Loan Documents as though such Lender were not a Lender hereunder without
notice to or consent of the other members of the Lender Group (or the Bank Product Providers). The other members of the Lender Group acknowledge
(and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to acknowledge) that, pursuant to such activities,
such Lender and its respective Affiliates may receive information regarding a Loan Party or its Affiliates or any other Person party to
any Loan Documents that is subject to confidentiality obligations in favor of such Loan Party or such other Person and that prohibit the
disclosure of such information to the Lenders, and the Lenders acknowledge (and by entering into a Bank Product Agreement, each Bank Product
Provider shall be deemed to acknowledge) that, in such circumstances (and in the absence of a waiver of such confidentiality obligations,
which waiver such Lender will use its reasonable best efforts to obtain), such Lender shall not be under any obligation to provide such
information to them.
15.11. Collateral
Matters.
(a) The
Lenders hereby irrevocably authorize (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to authorize)
Agent to release any Lien on any Collateral (i) upon the termination of the Commitments and payment and satisfaction in full by the
Loan Parties and their Subsidiaries of all of the Obligations, (ii) constituting property being sold or disposed of if a release
is required or desirable in connection therewith and if Borrowers certify to Agent that the sale or disposition is permitted under Section 6.4
(and Agent may rely conclusively on any such certificate, without further inquiry), (iii) constituting property in which no Loan
Party or any of its Subsidiaries owned any interest at the time Agent's Lien was granted nor at any time thereafter, (iv) constituting
property leased or licensed to a Loan Party or its Subsidiaries under a lease or license that has expired or is terminated in a transaction
permitted under this Agreement, or (v) in connection with a credit bid or purchase authorized under this Section 15.11.
Notwithstanding anything to the contrary in the foregoing, to the extent property is sold or disposed of pursuant to a transaction that
is permitted under Section 6.4 to a Person that is not a Loan Party (or required to become a Loan Party), Agent's Lien on
such sold or disposed of Collateral shall automatically terminate. The Loan Parties and the Lenders hereby irrevocably authorize (and
by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to authorize) Agent, based upon the instruction
of the Required Lenders, to (a) consent to the sale of, credit bid, or purchase (either directly or indirectly through one or more
entities) all or any portion of the Collateral at any sale thereof conducted under the provisions of the Bankruptcy Code, including Section 363
of the Bankruptcy Code, (b) credit bid or purchase (either directly or indirectly through one or more entities) all or any portion
of the Collateral at any sale or other disposition thereof conducted under the provisions of the Code, including pursuant to Sections
9-610 or 9-620 of the Code, or (c) credit bid or purchase (either directly or indirectly through one or more entities) all or any
portion of the Collateral at any other sale or foreclosure conducted or consented to by Agent in accordance with applicable law in any
judicial action or proceeding or by the exercise of any legal or equitable remedy. In connection with any such credit bid or purchase,
(i) the Obligations owed to the Lenders and the Bank Product Providers shall be entitled to be, and shall be, credit bid on a ratable
basis (with Obligations with respect to contingent or unliquidated claims being estimated for such purpose if the fixing or liquidation
thereof would not impair or unduly delay the ability of Agent to credit bid or purchase at such sale or other disposition of the Collateral
and, if such contingent or unliquidated claims cannot be estimated without impairing or unduly delaying the ability of Agent to credit
bid at such sale or other disposition, then such claims shall be disregarded, not credit bid, and not entitled to any interest in the
Collateral that is the subject of such credit bid or purchase) and the Lenders and the Bank Product Providers whose Obligations are credit
bid shall be entitled to receive interests (ratably based upon the proportion of their Obligations credit bid in relation to the aggregate
amount of Obligations so credit bid) in the Collateral that is the subject of such credit bid or purchase (or in the Equity Interests
of the any entities that are used to consummate such credit bid or purchase), and (ii) Agent, based upon the instruction of the Required
Lenders, may accept non-cash consideration, including debt and equity securities issued by any entities used to consummate such credit
bid or purchase and in connection therewith Agent may reduce the Obligations owed to the Lenders and the Bank Product Providers (ratably
based upon the proportion of their Obligations credit bid in relation to the aggregate amount of Obligations so credit bid) based upon
the value of such non-cash consideration; provided, that Bank Product Obligations not entitled to the application set forth in
Section 2.4(b)(iii)(I)(ii)(z) shall not be entitled to be, and shall not be, credit bid, or used in the calculation of
the ratable interest of the Lenders and Bank Product Providers in the Obligations which are credit bid. Except as provided above, Agent
will not execute and deliver a release of any Lien on any Collateral without the prior written authorization of (y) if the release
is of all or substantially all of the Collateral, all of the Lenders (without requiring the authorization of the Bank Product Providers),
or (z) otherwise, the Required Lenders (without requiring the authorization of the Bank Product Providers). Upon request by Agent
or Borrowers at any time, the Lenders will (and if so requested, the Bank Product Providers will) confirm in writing Agent's authority
to release any such Liens on particular types or items of Collateral pursuant to this Section 15.11; provided, that
(1) anything to the contrary contained in any of the Loan Documents notwithstanding, Agent shall not be required to execute any document
or take any action necessary to evidence such release on terms that, in Agent's opinion, could expose Agent to liability or create any
obligation or entail any consequence other than the release of such Lien without recourse, representation, or warranty, and (2) such
release shall not in any manner discharge, affect, or impair the Obligations or any Liens (other than those expressly released) upon (or
obligations of Borrowers in respect of) any and all interests retained by any Borrower, including, the proceeds of any sale, all of which
shall continue to constitute part of the Collateral. Each Lender further hereby irrevocably authorizes (and by entering into a Bank Product
Agreement, each Bank Product Provider shall be deemed to irrevocably authorize) Agent, at its option and in its sole discretion, to subordinate
(by contract or otherwise) any Lien granted to or held by Agent on any property under any Loan Document (a) to the holder of any
Permitted Lien on such property if such Permitted Lien secures purchase money Indebtedness (including Capitalized Lease Obligations) which
constitutes Permitted Indebtedness and (b) to the extent Agent has the authority under this Section 15.11 to release
its Lien on such property. Notwithstanding the provisions of this Section 15.11, Agent shall be authorized, without the consent
of any Lender and without the requirement that an asset sale consisting of the sale, transfer or other disposition having occurred, to
release any security interest in any building, structure or improvement located in an area determined by the Federal Emergency Management
Agency to have special flood hazards provided that such building, structure or improvement has an immaterial fair market value.
-148-
(b) Agent
shall have no obligation whatsoever to any of the Lenders (or the Bank Product Providers) (i) to verify or assure that the Collateral
exists or is owned by a Loan Party or any of its Subsidiaries or is cared for, protected, or insured or has been encumbered, (ii) to
verify or assure that Agent's Liens have been properly or sufficiently or lawfully created, perfected, protected, or enforced or are entitled
to any particular priority, (iii) to impose, maintain, increase, reduce, implement, or eliminate any particular reserve hereunder
or to determine whether the amount of any reserve is appropriate or not, or (iv) to exercise at all or in any particular manner or
under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available
to Agent pursuant to any of the Loan Documents, it being understood and agreed that in respect of the Collateral, or any act, omission,
or event related thereto, subject to the terms and conditions contained herein, Agent may act in any manner it may deem appropriate, in
its sole discretion given Agent's own interest in the Collateral in its capacity as one of the Lenders and that Agent shall have no other
duty or liability whatsoever to any Lender (or Bank Product Provider) as to any of the foregoing, except as otherwise expressly provided
herein.
15.12. Restrictions
on Actions by Lenders; Sharing of Payments.
(a) Each
of the Lenders agrees that it shall not, without the express written consent of Agent, and that it shall, to the extent it is lawfully
entitled to do so, upon the written request of Agent, set off against the Obligations, any amounts owing by such Lender to any Loan Party
or its Subsidiaries or any deposit accounts of any Loan Party or its Subsidiaries now or hereafter maintained with such Lender. Each of
the Lenders further agrees that it shall not, unless specifically requested to do so in writing by Agent, take or cause to be taken any
enforcement action against the Collateral.
(b) If,
at any time or times any Lender shall receive (i) by payment, foreclosure, setoff, or otherwise, any proceeds of Collateral or any
payments with respect to the Obligations, except for any such proceeds or payments received by such Lender from Agent pursuant to the
terms of this Agreement, or (ii) payments from Agent in excess of such Lender's Pro Rata Share of all such distributions by Agent,
such Lender promptly shall (A) turn the same over to Agent, in kind, and with such endorsements as may be required to negotiate the
same to Agent, or in immediately available funds, as applicable, for the account of all of the Lenders and for application to the Obligations
in accordance with the applicable provisions of this Agreement, or (B) purchase, without recourse or warranty, an undivided interest
and participation in the Obligations owed to the other Lenders so that such excess payment received shall be applied ratably as among
the Lenders in accordance with their Pro Rata Shares; provided, that to the extent that such excess payment received by the purchasing
party is thereafter recovered from it, those purchases of participations shall be rescinded in whole or in part, as applicable, and the
applicable portion of the purchase price paid therefor shall be returned to such purchasing party, but without interest except to the
extent that such purchasing party is required to pay interest in connection with the recovery of the excess payment.
-149-
15.13. Agency
for Perfection. Agent hereby appoints each other Lender (and each Bank Product Provider) as its agent (and each Lender hereby
accepts (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to accept) such appointment) for the
purpose of perfecting Agent's Liens in assets which, in accordance with Article 8 or Article 9, as applicable, of the Code or
the corresponding provisions of the PPSA can be perfected by possession or control. Should any Lender obtain possession or control of
any such Collateral (other than Revolving Agent, in its capacity as sub-agent of Agent, pursuant to Control Agreements), such Lender shall
notify Agent thereof, and, promptly upon Agent's request therefor shall deliver possession or control of such Collateral to Agent or in
accordance with Agent's instructions.
15.14. Payments
by Agent to the Lenders. All payments to be made by Agent to the Lenders (or Bank Product Providers) shall be made by bank wire
transfer of immediately available funds pursuant to such wire transfer instructions as each party may designate for itself by written
notice to Agent. Concurrently with each such payment, Agent shall identify whether such payment (or any portion thereof) represents principal,
premium, fees, or interest of the Obligations.
15.15. Concerning
the Collateral and Related Loan Documents. Each member of the Lender Group authorizes and directs Agent and Revolving Agent to
enter into this Agreement and the other Loan Documents. Each member of the Lender Group agrees (and by entering into a Bank Product Agreement,
each Bank Product Provider shall be deemed to agree) that any action taken by Agent or Revolving Agent in accordance with the terms of
this Agreement or the other Loan Documents relating to the Collateral and the exercise by Agent or Revolving Agent, as applicable, of
its powers set forth therein or herein, together with such other powers that are reasonably incidental thereto, shall be binding upon
all of the Lenders (and such Bank Product Provider).
15.16. [Reserved].
15.17. Several
Obligations; No Liability. Notwithstanding that certain of the Loan Documents now or hereafter may have been or will be executed
only by or in favor of Agent in its capacity as such, and not by or in favor of the Lenders, any and all obligations on the part of Agent
(if any) to make any credit available hereunder shall constitute the several (and not joint) obligations of the respective Lenders on
a ratable basis (in accordance with their Pro Rata Share), according to their respective Commitments, to make an amount of such credit
not to exceed, in principal amount, at any one time outstanding, the amount of their respective Commitments. Nothing contained herein
shall confer upon any Lender any interest in, or subject any Lender to any liability for, or in respect of, the business, assets, profits,
losses, or liabilities of any other Lender. Each Lender shall be solely responsible for notifying its Participants of any matters relating
to the Loan Documents to the extent any such notice may be required, and no Lender shall have any obligation, duty, or liability to any
Participant of any other Lender. Except as provided in Section 15.7, no member of the Lender Group shall have any liability
for the acts of any other member of the Lender Group. No Lender shall be responsible to any Borrower or any other Person for any failure
by any other Lender (or Bank Product Provider) to fulfill its obligations to make credit available hereunder, nor to advance for such
Lender (or Bank Product Provider) or on its behalf, nor to take any other action on behalf of such Lender (or Bank Product Provider) hereunder
or in connection with the financing contemplated herein.
-150-
15.18. Appointment
of Agent as UK security trustee. For the purposes of any Liens created under a UK Security Document, the following additional
provisions shall apply, in addition to the provisions set out in this Section 15 or otherwise hereunder.
(a) In
this Section 15.18, the following expressions have the following meanings:
"Appointee"
means any receiver, administrator or other insolvency officer appointed in respect of any Loan Party or its assets.
"Charged Property"
means the assets of a Loan Party subject to a security interest under a UK Security Document.
"Delegate"
means any delegate, agent, attorney or co-trustee appointed by the Agent (in its capacity as security trustee).
(b) The
Lenders appoint the Agent to hold the security interests constituted by the UK Security Documents on trust for the Lenders on the terms
of the Loan Documents and the Agent accepts that appointment.
(c) The
Agent, its subsidiaries and associated companies may each retain for its own account and benefit any fee, remuneration and profits paid
to it in connection with (i) its activities under the Loan Documents; and (ii) its engagement in any kind of banking or other
business with any Loan Party.
(d) Nothing
in this Agreement constitutes the Agent as a trustee or fiduciary of, nor shall the Agent have any duty or responsibility to, any Loan
Party.
(e) The
Agent shall have no duties or obligations to any other Person except for those which are expressly specified in the Loan Documents or
mandatorily required by applicable law.
(f) The
Agent may appoint one or more Delegates on such terms (which may include the power to sub-delegate) and subject to such conditions as
it thinks fit, to exercise and perform all or any of the duties, rights, powers and discretions vested in it by the UK Security Documents
and shall not be obliged to supervise any Delegate or be responsible to any person for any loss incurred by reason of any act, omission,
misconduct or default on the part of any Delegate.
-151-
(g) The
Agent may (whether for the purpose of complying with any law or regulation of any overseas jurisdiction, or for any other reason) appoint
(and subsequently remove) any person to act jointly with the Agent either as a separate trustee or as a co-trustee on such terms and subject
to such conditions as the Agent thinks fit and with such of the duties, rights, powers and discretions vested in the Agent by the UK Security
Documents as may be conferred by the instrument of appointment of that person.
(h) The
Agent shall notify the Lenders of the appointment of each Appointee (other than a Delegate).
(i) The
Agent may pay reasonable remuneration to any Delegate or Appointee, together with any costs and expenses (including legal fees) reasonably
incurred by the Delegate or Appointee in connection with its appointment. All such remuneration, costs and expenses shall be treated,
for the purposes of this Agreement, as paid or incurred by the Agent.
(j) Each
Delegate and each Appointee shall have every benefit, right, power and discretion and the benefit of every exculpation (together "Rights")
of the Agent (in its capacity as security trustee) under the UK Security Documents, and each reference to the Agent (where the context
requires that such reference is to the Agent in its capacity as security trustee) in the provisions of the UK Security Documents which
confer Rights shall be deemed to include a reference to each Delegate and each Appointee.
(k) Each
Lender confirms its approval of the UK Security Documents and authorizes and instructs the Agent: (i) to execute and deliver the
UK Security Documents; (ii) to exercise the rights, powers and discretions given to the Agent (in its capacity as security trustee)
under or in connection with the UK Security Documents together with any other incidental rights, powers and discretions; and (iii) to
give any authorizations and confirmations to be given by the Agent (in its capacity as security trustee) on behalf of the Lenders under
the UK Security Documents.
(l) The
Agent may accept without inquiry the title (if any) which any person may have to the Charged Property.
(m) Each
Lender confirms that it does not wish to be registered as a joint proprietor of any security interest constituted by a UK Security Documents
and accordingly authorizes: (a) the Agent to hold such security interest in its sole name (or in the name of any Delegate) as trustee
for the Lenders; and (b) the Land Registry (or other relevant registry) to register the Agent (or any Delegate or Appointee) as a
sole proprietor of such security interest.
(n) Except
to the extent that a UK Security Document otherwise requires, any moneys which the Agent receives under or pursuant to a UK Security Document
may be: (a) invested in any investments which the Agent selects and which are authorized by applicable law; or (b) placed on
deposit at any bank or institution (including the Agent) on terms that the Agent thinks fit, in each case in the name or under the control
of the Agent, and the Agent shall hold those moneys, together with any accrued income (net of any applicable Taxes) to the order of the
Lenders, and shall pay them to the Lenders on demand.
(o) On
a disposal of any of the Charged Property which is permitted under the Loan Documents, the Agent shall (at the cost of the Loan Parties)
execute any release of the UK Security Documents or other claim over that Charged Property and issue any certificates of non-crystallisation
of floating charges that may be required or take any other action that the Agent considers desirable.
-152-
(p) The
Agent shall not be liable for:
(i) any
defect in or failure of the title (if any) which any person may have to any assets over which security is intended to be created by a
UK Security Document;
(ii) any
loss resulting from the investment or deposit at any bank of moneys which it invests or deposits in a manner permitted by a UK Security
Document;
(iii) the
exercise of, or the failure to exercise, any right, power or discretion given to it by or in connection with any Loan Document or any
other agreement, arrangement or document entered into, or executed in anticipation of, under or in connection with, any Loan Document;
or
(iv) any
shortfall which arises on enforcing a UK Security Documents.
(q) The
Agent shall not be obligated to:
(i) obtain
any authorization or environmental permit in respect of any of the Charged Property or a UK Security Documents;
(ii) hold
in its own possession a UK Security Document, title deed or other document relating to the Charged Property or a UK Security Document;
(iii) perfect,
protect, register, make any filing or give any notice in respect of a UK Security Document (or the order of ranking of a UK Security Document),
unless that failure arises directly from its own gross negligence or willful misconduct; or
(iv) require
any further assurances in relation to a UK Security Document.
(r) In
respect of any UK Security Document, the Agent shall not be obligated to: (i) insure, or require any other person to insure, the
Charged Property; or (ii) make any enquiry or conduct any investigation into the legality, validity, effectiveness, adequacy or enforceability
of any insurance existing over such Charged Property.
(s) In
respect of any UK Security Documents, the Agent shall not have any obligation or duty to any person for any loss suffered as a result
of: (i) the lack or inadequacy of any insurance; or (ii) the failure of the Agent to notify the insurers of any material fact
relating to the risk assumed by them, or of any other information of any kind, unless Required Lenders have requested it to do so in writing
and the Agent has failed to do so within fourteen (14) days after receipt of that request.
(t) Every
appointment of a successor Agent under a UK Security Document shall be by deed.
-153-
(u) Section 1
of the Trustee Act 2000 shall not apply to the duty of the Agent in relation to the trusts constituted by this Agreement.
(v) In
the case of any conflict between the provisions of this Agreement and those of the Trustee Act 1925 or the Trustee Act 2000, the provisions
of this Agreement shall prevail to the extent allowed by law, and shall constitute a restriction or exclusion for the purposes of the
Trustee Act 2000.
(w) The
perpetuity period under the rule against perpetuities if applicable to this Agreement and any UK Security Document shall be 125 years
from the date of this Agreement.
16. WITHHOLDING TAXES.
16.1. Payments.
All payments made by or on account of any Obligation of any Loan Party under any Loan Document will be made free and clear of, and without
deduction or withholding for, any Taxes, except as otherwise required by applicable law, and in the event any deduction or withholding
of Taxes is required, the applicable Loan Party shall make the requisite withholding, timely pay over to the applicable Governmental Authority
the withheld Tax in accordance with applicable law, and furnish to Agent or Revolving Agent, as applicable, as promptly as possible after
the date the payment of any such Tax is due pursuant to applicable law, certified copies of tax receipts or other applicable documentation
evidencing such payment by the Loan Parties. If such Tax is an Indemnified Tax, then the sum payable by the Loan Parties shall
be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable
to additional sums payable under this Section), each Recipient receives an amount equal to the sum it would have received had no such
deduction or withholding been made. Without duplication, the Loan Parties will timely pay any Other Taxes or reimburse Agent for such
Other Taxes upon Agent's demand. Without duplication, the Loan Parties shall jointly and severally indemnify each Indemnified Person
(as defined in Section 10.3) and other Recipient (collectively a "Tax Indemnitee") for the full amount of
Indemnified Taxes arising in connection with this Agreement or any other Loan Document (including any Indemnified Taxes imposed or asserted
on, or attributable to, amounts payable under this Section 16) imposed on, or paid by, such Tax Indemnitee and all reasonable
costs and expenses related thereto (including fees and disbursements of attorneys and other tax professionals), as and when they are incurred
and irrespective of whether suit is brought, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority (other than Indemnified Taxes and additional amounts that a court of competent jurisdiction finally determines
to have resulted from the gross negligence or willful misconduct of such Tax Indemnitee). A certificate as to the amount of such
payment or liability delivered to the Administrative Borrower by a Tax Indemnitee (with a copy to the Agent and Revolving Agent), or by
the Agent or Revolving Agent, as applicable, on its own behalf or on behalf of a Tax Indemnitee, shall be conclusive absent manifest error.
The obligations of the Loan Parties under this Section 16 shall survive the termination of this Agreement, the resignation
and replacement of Agent, and the repayment of the Obligations.
-154-
16.2. Exemptions.
(a) Any
Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall
deliver to the Administrative Borrower and the Agent, at the time or times reasonably requested by the Administrative Borrower, the Agent
or the Revolving Agent, such properly completed and executed documentation reasonably requested by the Administrative Borrower, the Agent
or the Revolving Agent, as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition,
any Lender, if reasonably requested by the Administrative Borrower, the Agent or the Revolving Agent, as applicable, shall deliver such
other documentation prescribed by Applicable Law or reasonably requested by the Administrative Borrower or the Agent as will enable the
Administrative Borrower and the Agent to determine whether or not such Lender is subject to backup withholding or information reporting
requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission
of such documentation (other than such documentation set forth in Section 16.2(b)) shall not be required if in the Lender's reasonable
judgment such completion, execution or submission would subject such Lender or its Affiliates to any unreimbursed cost or expense or would
prejudice the legal or commercial position of such Lender or its Affiliates.
(b) Without
limiting the generality of the foregoing,
(i) any
Lender that is a U.S. Person shall deliver to the Administrative Borrower and Agent on or before the date on which such Lender becomes
a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Administrative Borrower or Agent),
executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;
(ii) any
Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Administrative Borrower and Agent (in such number
of copies as shall be requested by the recipient) on or before the date on which such Foreign Lender becomes a Lender under this Agreement
(and from time to time thereafter upon the reasonable request of the Administrative Borrower or Agent), whichever of the following is
applicable:
(A) in
the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect
to payments of interest under any Loan Document, executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption
from, or reduction of, U.S. federal withholding Tax pursuant to the "interest" article of such tax treaty and (y) with
respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or IRS Form W-8BEN-E establishing an
exemption from, or reduction of, U.S. federal withholding Tax pursuant to the "business profits" or "other income"
article of such tax treaty;
(B) executed
copies of IRS Form W-8ECI;
-155-
(C) in
the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the IRC,
(x) a certificate substantially in the form of the applicable Exhibit T-1 attached to this Agreement to the effect that
such Foreign Lender is not a "bank" within the meaning of Section 881(c)(3)(A) of the IRC, a "10 percent
shareholder" of the Borrower within the meaning of Section 871(h)(3)(B) of the IRC, or a "controlled foreign corporation"
related to the Borrower as described in Section 881(c)(3)(C) of the IRC and that no payment under any Loan Document is effectively
connected with such Foreign Lender's conduct of a U.S. trade or business (a "U.S. Tax Compliance Certificate") and
(y) executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E; or
(D) to
the extent a Foreign Lender is not the beneficial owner (for example, if such Foreign Lender is a partnership or a participating Lender),
executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, IRS Form W-8BEN-E,
a U.S. Tax Compliance Certificate substantially in the form of the applicable Exhibit T-2 or Exhibit T-3
attached to this Agreement, IRS Form W-9, or other certification documents from each beneficial owner, as applicable; provided
that if the Foreign Lender is a partnership (and not a participating Lender) and one or more direct or indirect partners of such Foreign
Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially
in the form of the applicable Exhibit T-4 attached to this Agreement on behalf of such direct and indirect partner(s);
(iii) any
Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Administrative Borrower and Agent (in such number
of copies as shall be requested by the recipient) on or before the date on which such Foreign Lender becomes a Lender under this Agreement
(and from time to time thereafter upon the reasonable request of the Administrative Borrower or Agent), executed copies of any other documentation
prescribed by Applicable Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed,
together with such supplementary documentation as may be prescribed by Applicable Law to permit the Administrative Borrower and Agent
to determine the withholding or deduction required to be made; and
(iv) if
a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were
to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of
the IRC, as applicable), such Lender shall deliver to the Administrative Borrower and Agent at the time or times prescribed by law and
at such time or times reasonably requested by the Administrative Borrower or Agent such documentation prescribed by Applicable Law (including
as prescribed by Section 1471(b)(3)(C)(i) of the IRC) and such additional documentation reasonably requested by the Administrative
Borrower or Agent as may be necessary for the Administrative Borrower and Agent to comply with their obligations under FATCA and to determine
that such Lender has complied with such Lender's obligations under FATCA or to determine the amount, if any, to deduct and withhold from
such payment. Solely for purposes of this clause (iv), "FATCA" shall include any amendments made to FATCA after the date
of this Agreement.
(c) Each
Lender agrees that if any documentation it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update
such documentation or promptly notify the Administrative Borrower and Agent in writing of its legal inability to do so.
-156-
16.3. Reductions.
(a) If
a Lender is subject to an applicable withholding tax, Agent may withhold from any payment to such Lender an amount equivalent to the applicable
withholding tax. If the forms or other documentation required by Section 16.2(a) or 16.2(c) are not delivered
to Agent, then Agent may withhold from any payment to such Lender not providing such forms or other documentation an amount equivalent
to the applicable withholding tax.
(b) If
the IRS or any other Governmental Authority of the United States or other jurisdiction asserts a claim that Agent did not properly withhold
tax from amounts paid to or for the account of any Lender due to a failure on the part of the Lender (because the appropriate form was
not delivered, was not properly executed, or because such Lender failed to notify Agent of a change in circumstances which rendered the
exemption from, or reduction of, withholding tax ineffective, or for any other reason) such Lender shall indemnify and hold Agent harmless
for all amounts paid, directly or indirectly, by Agent, as tax or otherwise, including penalties and interest, and including any taxes
imposed by any jurisdiction on the amounts payable to Agent under this Section 16, together with all costs and expenses (including
attorneys' fees and expenses). The obligation of the Lenders under this subsection shall survive the payment of all Obligations and the
resignation or replacement of Agent.
16.4. Refunds.
If Agent, Revolving Agent or a Lender determines, in its sole discretion, that it has received a refund of any Indemnified Taxes to which
the Loan Parties have paid additional amounts pursuant to this Section 16, so long as no Default or Event of Default has occurred
and is continuing, it shall pay over such refund to the Administrative Borrower on behalf of the Loan Parties (but only to the extent
of payments made, or additional amounts paid, by the Loan Parties under this Section 16 with respect to Indemnified Taxes
giving rise to such a refund), net of all out-of-pocket expenses of Agent, Revolving Agent or such Lender and without interest (other
than any interest paid by the applicable Governmental Authority with respect to such a refund); provided, that the Loan Parties,
upon the request of Agent, Revolving Agent or such Lender, agrees to repay the amount paid over to the Loan Parties (plus any penalties,
interest or other charges, imposed by the applicable Governmental Authority, other than such penalties, interest or other charges imposed
as a result of the willful misconduct or gross negligence of Agent, Revolving Agent or Lender hereunder as finally determined by a court
of competent jurisdiction) to Agent, Revolving Agent or such Lender in the event Agent, Revolving Agent or such Lender is required to
repay such refund to such Governmental Authority. Notwithstanding anything in this Agreement to the contrary, this Section 16
shall not be construed to require Agent, Revolving Agent or any Lender to make available its tax returns (or any other information which
it deems confidential) to Loan Parties or any other Person or require Agent, Revolving Agent or any Lender to pay any amount to an indemnifying
party pursuant to this Section 16.4, the payment of which would place Agent, Revolving Agent or such Lender (or their Affiliates)
in a less favorable net after-Tax position than such Person would have been in if the Tax subject to indemnification and giving rise to
such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to
such Tax had never been paid.
-157-
16.5. Administrative
Agent. Agent shall deliver to the Administrative Borrower on or prior to the date on which Agent first becomes an Agent hereunder,
whichever of the following is applicable, (A) if Agent is a U.S. Person, two copies of a properly completed and executed IRS Form W-9
certifying its exemption from U.S. federal backup withholding or (B) if Agent is not a U.S. Person, with respect to payments received
by Agent for its own account, an IRS Form W-8ECI and, with respect to payments received by Agent on behalf of a Lender, (x) an
IRS Form W-8IMY certifying that Agent is a U.S. branch and intends to be treated as a U.S. person for purposes of withholding under
Chapter 3 of the IRC pursuant to Section 1.1441-1(b)(2)(iv) of the Treasury Regulations with respect to payments received by
it from Borrowers, or (y) an IRS Form W-8IMY certifying that it is a qualified intermediary that has assumed withholding and
reporting obligations for purposes of Chapter 3 of the IRC and IRS Form 1099 reporting and backup withholding responsibility for
each Lender that it is acting on behalf of. If any documentation previously delivered to the Administrative Borrower by Agent pursuant
to this Section 16.5 expires or becomes obsolete or inaccurate in any respect, Agent shall update such documentation or promptly
notify the Administrative Borrower in writing of its legal ineligibility to do so.
17. GENERAL PROVISIONS.
17.1. Effectiveness.
This Agreement shall be binding and deemed effective when executed by each Borrower, Agent, and each Lender whose signature is provided
for on the signature pages hereof.
17.2. Section Headings.
Headings and numbers have been set forth herein for convenience only. Unless the contrary is compelled by the context, everything contained
in each Section applies equally to this entire Agreement.
17.3. Interpretation.
Neither this Agreement nor any uncertainty or ambiguity herein shall be construed against the Lender Group or any Borrower, whether under
any rule of construction or otherwise. On the contrary, this Agreement has been reviewed by all parties and shall be construed and
interpreted according to the ordinary meaning of the words used so as to accomplish fairly the purposes and intentions of all parties
hereto.
17.4. Severability
of Provisions. Each provision of this Agreement shall be severable from every other provision of this Agreement for the purpose
of determining the legal enforceability of any specific provision.
17.5. Bank
Product Providers. Each Bank Product Provider in its capacity as such shall be deemed a third party beneficiary hereof and of
the provisions of the other Loan Documents for purposes of any reference in a Loan Document to the parties for whom Agent is acting. Agent
hereby agrees to act as agent for such Bank Product Providers and, by virtue of entering into a Bank Product Agreement, the applicable
Bank Product Provider shall be automatically deemed to have appointed Agent as its agent and to have accepted the benefits of the Loan
Documents. It is understood and agreed that the rights and benefits of each Bank Product Provider under the Loan Documents consist exclusively
of such Bank Product Provider's being a beneficiary of the Liens and security interests (and, if applicable, guarantees) granted to Agent
and the right to share in payments and collections out of the Collateral as more fully set forth herein. In addition, each Bank Product
Provider, by virtue of entering into a Bank Product Agreement, shall be automatically deemed to have agreed that Agent shall have the
right, but shall have no obligation, to establish, maintain, relax, or release reserves in respect of the Bank Product Obligations and
that if reserves are established there is no obligation on the part of Agent to determine or insure whether the amount of any such reserve
is appropriate or not. In connection with any such distribution of payments or proceeds of Collateral, Agent shall be entitled to assume
no amounts are due or owing to any Bank Product Provider unless such Bank Product Provider has provided a written certification (setting
forth a reasonably detailed calculation) to Agent as to the amounts that are due and owing to it and such written certification is received
by Agent a reasonable period of time prior to the making of such distribution. Agent shall have no obligation to calculate the amount
due and payable with respect to any Bank Products, but may rely upon the written certification of the amount due and payable from the
applicable Bank Product Provider. In the absence of an updated certification, Agent shall be entitled to assume that the amount due and
payable to the applicable Bank Product Provider is the amount last certified to Agent by such Bank Product Provider as being due and payable
(less any distributions made to such Bank Product Provider on account thereof). Borrowers may obtain Bank Products from any Bank Product
Provider, although Borrowers are not required to do so. Each Borrower acknowledges and agrees that no Bank Product Provider has committed
to provide any Bank Products and that the providing of Bank Products by any Bank Product Provider is in the sole and absolute discretion
of such Bank Product Provider. Notwithstanding anything to the contrary in this Agreement or any other Loan Document, no provider or holder
of any Bank Product shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider
or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be
required (other than in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of the other Loan
Documents, including as to any matter relating to the Collateral or the release of Collateral or Guarantors.
-158-
17.6. Debtor-Creditor
Relationship. The relationship between the Lenders and Agent, on the one hand, and the Loan Parties, on the other hand, is solely
that of creditor and debtor. No member of the Lender Group has (or shall be deemed to have) any fiduciary relationship or duty to any
Loan Party arising out of or in connection with the Loan Documents or the transactions contemplated thereby, and there is no agency or
joint venture relationship between the members of the Lender Group, on the one hand, and the Loan Parties, on the other hand, by virtue
of any Loan Document or any transaction contemplated therein.
17.7. Counterparts;
Electronic Execution. This Agreement may be executed in any number of counterparts and by different parties on separate counterparts,
each of which, when executed and delivered, shall be deemed to be an original, and all of which, when taken together, shall constitute
but one and the same Agreement. Delivery of an executed counterpart of this Agreement by telefacsimile or other electronic method of transmission
shall be equally as effective as delivery of an original executed counterpart of this Agreement. Any party delivering an executed counterpart
of this Agreement by telefacsimile or other electronic method of transmission also shall deliver an original executed counterpart of this
Agreement but the failure to deliver an original executed counterpart shall not affect the validity, enforceability, and binding effect
of this Agreement. Each party agrees that the electronic signatures, whether digital or encrypted, of the parties included in this Agreement
are intended to authenticate this writing and to have the same force and effect as manual signatures. Electronic Signature means any electronic
sound, symbol, or process attached to or logically associated with a record and executed and adopted by a party with the intent to sign
such record, including facsimile or email electronic signatures pursuant to the New York Electronic Signatures and Records Act (N.Y. State
Tech. §§ 301-309) as amended from time to time or as provided under the Uniform Commercial Code as adopted by the State of New
York. The foregoing shall apply to each other Loan Document mutatis mutandis.
-159-
17.8. Revival
and Reinstatement of Obligations. If any member of the Lender Group or any Bank Product Provider repays, refunds, restores, or
returns in whole or in part, any payment or property (including any proceeds of Collateral) previously paid or transferred to such member
of the Lender Group or such Bank Product Provider in full or partial satisfaction of any Obligation or on account of any other obligation
of any Loan Party under any Loan Document or any Bank Product Agreement, because the payment, transfer, or the incurrence of the obligation
so satisfied is asserted or declared to be void, voidable, or otherwise recoverable under any law relating to creditors' rights, including
provisions of the Bankruptcy Code relating to fraudulent transfers, preferences, or other voidable or recoverable obligations or transfers
(each, a "Voidable Transfer"), or because such member of the Lender Group or Bank Product Provider elects to do so on
the reasonable advice of its counsel in connection with a claim that the payment, transfer, or incurrence is or may be a Voidable Transfer,
then, as to any such Voidable Transfer, or the amount thereof that such member of the Lender Group or Bank Product Provider elects to
repay, restore, or return (including pursuant to a settlement of any claim in respect thereof), and as to all reasonable costs, expenses,
and attorneys' fees of such member of the Lender Group or Bank Product Provider related thereto, (i) the liability of the Loan Parties
with respect to the amount or property paid, refunded, restored, or returned will automatically and immediately be revived, reinstated,
and restored and will exist, and (ii) Agent's Liens securing such liability shall be effective, revived, and remain in full force
and effect, in each case, as fully as if such Voidable Transfer had never been made. If, prior to any of the foregoing, (A) Agent's
Liens shall have been released or terminated, or (B) any provision of this Agreement shall have been terminated or cancelled, Agent's
Liens, or such provision of this Agreement, shall be reinstated in full force and effect and such prior release, termination, cancellation
or surrender shall not diminish, release, discharge, impair or otherwise affect the obligation of any Loan Party in respect of such liability
or any Collateral securing such liability. This provision shall survive the termination of this Agreement and the repayment in full of
the Obligations.
17.9. Confidentiality.
(a) Agent
and Lenders each individually (and not jointly or jointly and severally) agree that material non-public information regarding the Loan
Parties and their Subsidiaries, their operations, assets, and existing and contemplated business plans ("Confidential Information")
shall be treated by Agent and the Lenders in a confidential manner, and shall not be disclosed by Agent and the Lenders to Persons who
are not parties to this Agreement, except: (i) to attorneys for and other advisors, accountants, auditors, and consultants to any
member of the Lender Group and to employees, directors and officers of any member of the Lender Group (the Persons in this clause (i),
"Lender Group Representatives") on a "need to know" basis in connection with this Agreement and the transactions
contemplated hereby and on a confidential basis, (ii) to Subsidiaries and Affiliates of any member of the Lender Group (including
the Bank Product Providers); provided, that any such Subsidiary or Affiliate shall have agreed to receive such information hereunder
subject to the terms of this Section 17.9, (iii) as may be required by regulatory authorities so long as such authorities
are informed of the confidential nature of such information, (iv) as may be required by statute, decision, or judicial or administrative
order, rule, or regulation; provided, that (x) prior to any disclosure under this clause (iv), the disclosing party agrees
to provide Borrowers with prior notice thereof, to the extent that it is practicable to do so and to the extent that the disclosing party
is permitted to provide such prior notice to Borrowers pursuant to the terms of the applicable statute, decision, or judicial or administrative
order, rule, or regulation and (y) any disclosure under this clause (iv) shall be limited to the portion of the Confidential
Information as may be required by such statute, decision, or judicial or administrative order, rule, or regulation, (v) as may be
agreed to in advance in writing by Borrowers, (vi) as requested or required by any Governmental Authority pursuant to any subpoena
or other legal process; provided, that (x) prior to any disclosure under this clause (vi) the disclosing party agrees
to provide Borrowers with prior written notice thereof, to the extent that it is practicable to do so and to the extent that the disclosing
party is permitted to provide such prior written notice to Borrowers pursuant to the terms of the subpoena or other legal process and
(y) any disclosure under this clause (vi) shall be limited to the portion of the Confidential Information as may be required
by such Governmental Authority pursuant to such subpoena or other legal process, (vii) as to any such information that is or becomes
generally available to the public (other than as a result of prohibited disclosure by Agent or the Lenders or the Lender Group Representatives),
(viii) in connection with any assignment, participation or pledge of any Lender's interest under this Agreement; provided,
that prior to receipt of Confidential Information any such assignee, participant, or pledgee shall have agreed in writing to receive such
Confidential Information either subject to the terms of this Section 17.9 or pursuant to confidentiality requirements substantially
similar to those contained in this Section 17.9 (and such Person may disclose such Confidential Information to Persons employed
or engaged by them as described in clause (i) above), (ix) in connection with any litigation or other adversary proceeding involving
parties hereto which such litigation or adversary proceeding involves claims related to the rights or duties of such parties under this
Agreement or the other Loan Documents; provided, that prior to any disclosure to any Person (other than any Loan Party, Agent,
any Lender, any of their respective Affiliates, or their respective counsel) under this clause (ix) with respect to litigation involving
any Person (other than any Borrower, Agent, any Lender, any of their respective Affiliates, or their respective counsel), the disclosing
party agrees to provide Borrowers with prior written notice thereof, and (x) in connection with, and to the extent reasonably necessary
for, the exercise of any secured creditor remedy under this Agreement or under any other Loan Document.
-160-
(b) Anything
in this Agreement to the contrary notwithstanding, Agent may disclose information concerning the terms and conditions of this Agreement
and the other Loan Documents to loan syndication and pricing reporting services or in its marketing or promotional materials, with such
information to consist of deal terms and other information customarily found in such publications or marketing or promotional materials
and may otherwise use the name, logos, and other insignia of any Borrower or the other Loan Parties and the Commitments provided hereunder
in any "tombstone" or other advertisements, on its website or in other marketing materials of Agent.
(c) Each
Loan Party agrees that Agent may make materials or information provided by or on behalf of Borrowers hereunder (collectively, "Borrower
Materials") available to the Lenders. Agent does not warrant the accuracy or completeness of the Borrower Materials, and expressly
disclaim liability for errors or omissions in any communications of the same. No warranty of any kind, express, implied or statutory,
including any warranty of merchantability, fitness for a particular purpose, non-infringement of third party rights or freedom from viruses
or other code defects, is made by Agent in connection with the Borrower Materials. In no event shall Agent or any of the Agent-Related
Persons have any liability to the Loan Parties, any Lender or any other person for damages of any kind, including direct or indirect,
special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of any Loan Party's
or Agent's transmission of communications through the Internet, except to the extent the liability of such person is found in a final
non-appealable judgment by a court of competent jurisdiction to have resulted from such person's gross negligence or willful misconduct.
Each Loan Party further agrees that certain of the Lenders may be "public-side" Lenders (i.e., Lenders that do not wish to receive
material non-public information with respect to the Loan Parties or their securities) (each, a "Public Lender"). The
Loan Parties shall be deemed to have authorized Agent and its Affiliates and the Lenders to treat Borrower Materials marked "PUBLIC"
or otherwise at any time filed with the SEC or applicable securities regulators in Canada as not containing any material non-public information
with respect to the Loan Parties or their securities for purposes of United States federal and state or Canadian securities laws. Agent
and its Affiliates and the Lenders shall be entitled to treat any Borrower Materials that are not marked "PUBLIC" or that are
not at any time filed with the SEC as being suitable only for posting on a portion of the Platform not marked as "Public Investor"
(or such other similar term).
-161-
17.10. Survival.
All representations and warranties made by the Loan Parties in the Loan Documents and in the certificates or other instruments delivered
in connection with or pursuant to this Agreement or any other Loan Document shall be considered to have been relied upon by the other
parties hereto and shall survive the execution and delivery of the Loan Documents and the making of any Loans, regardless of any investigation
made by any such other party or on its behalf and notwithstanding that Agent or any Lender may have had notice or knowledge of any Default
or Event of Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force
and effect as long as the principal of, or any accrued interest on, any Loan or any fee or any other amount payable under this Agreement
is outstanding or unpaid and so long as the Commitments have not expired or been terminated.
17.11. Patriot
Act; Due Diligence. Each Lender that is subject to the requirements of the Patriot Act and Canadian AML Laws hereby notifies the
Loan Parties that pursuant to the requirements of the Patriot Act and Canadian AML Laws, it is required to obtain, verify and record information
that identifies each Loan Party, which information includes the name and address of each Loan Party and other information that will allow
such Lender to identify each Loan Party in accordance with the Patriot Act. In addition, Agent and each Lender shall have the right to
periodically conduct due diligence on all Loan Parties, their senior management and key principals and legal and beneficial owners. Each
Loan Party agrees to cooperate in respect of the conduct of such due diligence and further agrees that the reasonable costs and charges
for any such due diligence by Agent and Revolving Agent shall constitute Lender Group Expenses hereunder and be for the account of Borrowers.
If (a) the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation made
after the date of this Agreement; (b) any change in the status of a UK Loan Party after the date of this Agreement; or (c) any
law, regulation, applicable market guidance or internal policy in relation to the period review and/or updating of customer information
obliges the Agent or any other member of the Lender Group to comply with "know your customer" or similar identification procedures
in circumstances where the necessary information is not already available to it, each UK Loan Party shall promptly upon the request of
the Agent or other member of the Lender Group supply, or procure the supply of, such documentation and other evidence as is reasonably
requested by the Agent or other member of the Lender Group in order for the Agent or other member of the Lender Group to carry out and
be satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations
pursuant to the transactions contemplated in the Loan Documents.
-162-
17.12. Integration.
This Agreement, together with the other Loan Documents, reflects the entire understanding of the parties with respect to the transactions
contemplated hereby and shall not be contradicted or qualified by any other agreement, oral or written, before the date hereof. The foregoing
to the contrary notwithstanding, all Bank Product Agreements, if any, are independent agreements governed by the written provisions of
such Bank Product Agreements, which will remain in full force and effect, unaffected by any repayment, prepayments, acceleration, reduction,
increase, or change in the terms of any credit extended hereunder, except as otherwise expressly provided in such Bank Product Agreement.
17.13. Comtech
as Agent for Borrowers. Each Borrower hereby irrevocably appoints Comtech as the borrowing agent and attorney-in-fact for all
Borrowers (the "Administrative Borrower") which appointment shall remain in full force and effect unless and until Agent
shall have received prior written notice signed by each Borrower that such appointment has been revoked and that another Borrower has
been appointed Administrative Borrower. Each Borrower hereby irrevocably appoints and authorizes Administrative Borrower (a) to provide
Agent with all notices with respect to Loans obtained for the benefit of any Borrower and all other notices and instructions under this
Agreement and the other Loan Documents (and any notice or instruction provided by Administrative Borrower shall be deemed to be given
by Borrowers hereunder and shall bind each Borrower), (b) to receive notices and instructions from members of the Lender Group (and
any notice or instruction provided by any member of the Lender Group to Administrative Borrower in accordance with the terms hereof shall
be deemed to have been given to each Borrower), (c) to enter into Bank Product Provider Agreements on behalf of Borrowers and their
Subsidiaries, and (d) to take such action as Administrative Borrower deems appropriate on its behalf to obtain Loans and to exercise
such other powers as are reasonably incidental thereto to carry out the purposes of this Agreement. It is understood that the handling
of the Loan Account and Collateral, as more fully set forth herein, is done solely as an accommodation to Borrowers in order to utilize
the collective borrowing powers of Borrowers in the most efficient and economical manner and at their request, and that Lender Group shall
not incur liability to any Borrower as a result hereof. Each Borrower expects to derive benefit, directly or indirectly, from the handling
of the Loan Account and the Collateral since the successful operation of each Borrower is dependent on the continued successful performance
of the integrated group. To induce the Lender Group to do so, and in consideration thereof, each Borrower hereby jointly and severally
agrees to indemnify each member of the Lender Group and hold each member of the Lender Group harmless against any and all liability, expense,
loss or claim of damage or injury, made against the Lender Group by any Borrower or by any third party whosoever, arising from or incurred
by reason of (i) the handling of the Loan Account and Collateral of Borrowers as herein provided, or (ii) the Lender Group's
relying on any instructions of Administrative Borrower, except that Borrowers will have no liability to the relevant Agent-Related
Person or Lender-Related Person under this Section 17.13 with respect to any liability that has been finally determined by
a court of competent jurisdiction to have resulted solely from the gross negligence or willful misconduct of such Agent-Related Person
or Lender-Related Person, as the case may be.
-163-
17.14. Acknowledgement
and Consent to Bail-In of Affected Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in
any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Affected
Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the Write-Down and
Conversion Powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a) the
application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder which
may be payable to it by any party hereto that is an Affected Financial Institution; and
(b) the
effects of any Bail-In Action on any such liability, including, if applicable:
(i) a
reduction in full or in part or cancellation of any such liability;
(ii) a
conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution,
its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments
of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document;
or
(iii) the
variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of the applicable Resolution
Authority.
17.15. Canadian
Anti-Money Laundering Legislation.
(a) Each
Loan Party acknowledges that, pursuant to Canadian AML Laws, the Lenders may be required to obtain, verify and record information regarding
the Loan Parties and their respective directors, authorized signing officers, direct or indirect shareholders or other Persons in control
of the Loan Parties, and the transactions contemplated hereby. Each Loan Party shall promptly provide all such information, including
supporting documentation and other evidence, as may be reasonably requested by any Lender or any prospective assignee or participant of
a Lender, any issuer of letters of credit hereunder or any Agent, in order to comply with any applicable Canadian AML Laws, whether now
or hereafter in existence.
(b) If
the Agent has ascertained the identity of any Loan Party or any authorized signatories of any Loan Party for the purposes of Canadian
AML Laws, then the Agent:
(i) shall
be deemed to have done so as an agent for each Lender and this Agreement shall constitute a “written agreement” in such regard
between each such Lender and the Agent within the meaning of the applicable Canadian AML Laws; and
(ii) shall
provide to each such Lender, copies of all information obtained in such regard without any representation or warranty as to its accuracy
or completeness.
Notwithstanding the preceding
sentence and except as may otherwise be agreed in writing, each Lender agrees that the Agent has no obligation to ascertain the identity
of any Loan Party or any authorized signatories of a Loan Party on behalf of any other Lender, or to confirm the completeness or accuracy
of any information it obtains from any Loan Party or any such authorized signatory in doing so.
-164-
17.16. Acknowledgement
Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for Hedge
Agreements or any other agreement or instrument that is a QFC (such support, "QFC Credit Support" and each such QFC a
"Supported QFC"), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit
Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection
Act (together with the regulations promulgated thereunder, the "U.S. Special Resolution Regimes") in respect of such
Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC
may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United
States): In the event a Covered Entity that is party to a Supported QFC (each, a "Covered Party") becomes subject to
a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and
any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported
QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under
the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property)
were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of
a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might
otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised
to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the
Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it
is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights
of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
17.17. Currency
Indemnity. If, for the purposes of obtaining judgment in any court in any jurisdiction with respect to this Agreement or any of
the Loan Documents, it becomes necessary to convert into the currency of such jurisdiction (the "Judgment Currency")
any amount due under this Agreement or any of the Loan Documents in any currency other than the Judgment Currency (the "Currency
Due"), then conversion shall be made at the exchange rate prevailing on the Business Day before the day on which judgment is
given. In the event that there is a change in the exchange rate prevailing between the Business Day before the day on which the judgment
is given and the date of receipt by Agent of the amount due, Administrative Borrower will, on the date of receipt by Agent, pay such additional
amounts, if any, or be entitled to receive reimbursement of such amount, if any, as may be necessary to ensure that the amount received
by Agent on such date is the amount in the Judgment Currency which when converted at the exchange rate prevailing on the date of receipt
by Agent is the amount then due under this Agreement, any of the Loan Documents in the Currency Due. If the amount of the Currency Due
which Agent is able to purchase is less than the amount of the Currency Due originally due to it, Administrative Borrower shall indemnify
and save Agent harmless from and against loss or damage arising as a result of such deficiency. The indemnity contained herein shall constitute
an obligation separate and independent from the other obligations contained in this Agreement and the Loan Documents shall give rise to
a separate and independent cause of action, shall apply irrespective of any indulgence granted by Agent from time to time and shall continue
in full force and effect notwithstanding any judgment or order for a liquidated sum in respect of an amount due under this Agreement,
any of the Loan Documents or under any judgment or order.
-165-
17.18. Erroneous
Payments.
(a) Each
Lender, each other Bank Product Provider and any other party hereto hereby severally agrees that if (i) Agent notifies (which such
notice shall be conclusive absent manifest error) such Lender or any Bank Product Provider (or the Lender which is an Affiliate of a Lender
or Bank Product Provider) or any other Person that has received funds from Agent or any of its Affiliates, either for its own account
or on behalf of a Lender or Bank Product Provider (each such recipient, a "Payment Recipient") that Agent has determined
in its sole discretion that any funds received by such Payment Recipient were erroneously transmitted to, or otherwise erroneously or
mistakenly received by, such Payment Recipient (whether or not known to such Payment Recipient) or (ii) any Payment Recipient receives
any payment from Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified
in a notice of payment, prepayment or repayment sent by Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment,
as applicable, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by Agent (or any of
its Affiliates) with respect to such payment, prepayment or repayment, as applicable, or (z) that such Payment Recipient otherwise
becomes aware was transmitted or received in error or by mistake (in whole or in part) then, in each case, an error in payment shall be
presumed to have been made (any such amounts specified in clauses (i) or (ii) of this Section 17.18(a), whether
received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise; individually and collectively,
an "Erroneous Payment"), then, in each case, such Payment Recipient is deemed to have knowledge of such error at the
time of its receipt of such Erroneous Payment; provided that nothing in this Section shall require Agent to provide any of
the notices specified in clauses (i) or (ii) above. Each Payment Recipient agrees that it shall not assert any right or claim
to any Erroneous Payment, and hereby waives any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand,
claim or counterclaim by Agent for the return of any Erroneous Payments, including without limitation waiver of any defense based on "discharge
for value" or any similar doctrine.
(b) Without
limiting the immediately preceding clause (a), each Payment Recipient agrees that, in the case of clause (a)(ii) above, it shall
promptly notify Agent in writing of such occurrence.
(c) In
the case of either clause (a)(i) or (a)(ii) above, such Erroneous Payment shall at all times remain the property of Agent
and shall be segregated by the Payment Recipient and held in trust for the benefit of Agent, and upon demand from Agent such Payment Recipient
shall (or, shall cause any Person who received any portion of an Erroneous Payment on its behalf to), promptly, but in all events no later
than five (5) Business Days thereafter, return to Agent the amount of any such Erroneous Payment (or portion thereof) as to which
such a demand was made in same day funds and in the currency so received, together with interest thereon (except to the extent waived
in writing by Agent in its sole discretion) in respect of each day from and including the last day of such five (5) Business Period
to the date such amount is repaid to Agent at the greater of the Federal Funds Rate and a rate determined by Agent in accordance with
banking industry rules on interbank compensation from time to time in effect.
-166-
(d) In
the event that an Erroneous Payment (or portion thereof) is not recovered by Agent for any reason, after demand therefor by Agent in accordance
with immediately preceding clause (c), from any Lender that is a Payment Recipient or an Affiliate of a Payment Recipient (such unrecovered
amount as to such Lender, an "Erroneous Payment Return Deficiency"), then at the sole discretion of Agent and upon Agent's
written notice to such Lender (i) such Lender shall be deemed to have made a cashless assignment of the full face amount of the portion
of its Loans (but not its Commitments) with respect to which such Erroneous Payment was made (the "Erroneous Payment Impacted
Loans") to Agent or, at the option of Agent, Agent's applicable lending affiliate (such assignee, the "Agent Assignee")
in an amount that is equal to the Erroneous Payment Return Deficiency (or such lesser amount as Agent may specify) (such assignment of
the Loans (but not Commitments) of the Erroneous Payment Impacted Loans, the "Erroneous Payment Deficiency Assignment")
plus any accrued and unpaid interest on such assigned amount, without further consent or approval of any party hereto and without any
payment by Agent Assignee as the assignee of such Erroneous Payment Deficiency Assignment. Without limitation of its rights hereunder,
following the effectiveness of the Erroneous Payment Deficiency Assignment, Agent may make a cashless reassignment to the applicable assigning
Lender of any Erroneous Payment Deficiency Assignment at any time by written notice to the applicable assigning Lender and upon such reassignment
all of the Loans assigned pursuant to such Erroneous Payment Deficiency Assignment shall be reassigned to such Lender without any requirement
for payment or other consideration. The parties hereto acknowledge and agree that (1) any assignment contemplated in this clause
(d) shall be made without any requirement for any payment or other consideration paid by the applicable assignee or received by the
assignor, (2) the provisions of this clause (d) shall govern in the event of any conflict with the terms and conditions of Section 13
and (3) Agent may reflect such assignments in the Register without further consent or action by any other Person.
(e) Each
party hereto hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient
that has received such Erroneous Payment (or portion thereof) for any reason, Agent (1) shall be subrogated to all the rights of
such Payment Recipient and (2) is authorized to set off, net and apply any and all amounts at any time owing to such Payment Recipient
under any Loan Document, or otherwise payable or distributable by Agent to such Payment Recipient from any source, against any amount
due to Agent under this Section 17.18 or under the indemnification provisions of this Agreement, (y) the receipt of an
Erroneous Payment by a Payment Recipient shall not for the purpose of this Agreement be treated as a payment, prepayment, repayment, discharge
or other satisfaction of any Obligations owed by the Borrowers or any other Loan Party, except, in each case, to the extent such Erroneous
Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by Agent from the Borrowers
or any other Loan Party for the purpose of making for a payment on the Obligations and (z) to the extent that an Erroneous Payment
was in any way or at any time credited as payment or satisfaction of any of the Obligations, the Obligations or any part thereof that
were so credited, and all rights of the Payment Recipient, as the case may be, shall be reinstated and continue in full force and effect
as if such payment or satisfaction had never been received.
-167-
(f) Each
party's obligations under this Section 17.18 shall survive the resignation or replacement of Agent or any transfer of right
or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of
all Obligations (or any portion thereof) under any Loan Document.
(g) The
provisions of this Section 17.18 to the contrary notwithstanding, (i) nothing in this Section 17.18 will
constitute a waiver or release of any claim of any party hereunder arising from any Payment Recipient's receipt of an Erroneous Payment
and (ii) there will only be deemed to be a recovery of the Erroneous Payment to the extent that Agent has received payment from the
Payment Recipient in immediately available funds the Erroneous Payment Return, whether directly from the Payment Recipient, as a result
of the exercise by Agent of its rights of subrogation or set off as set forth above in clause (e) or as a result of the receipt by
Agent Assignee of a payment of the outstanding principal balance of the Loans assigned to Agent Assignee pursuant to an Erroneous Payment
Deficiency Assignment, but excluding any other amounts in respect thereof (it being agreed that any payments of interest, fees, expenses
or other amounts (other than principal) received by Agent Assignee in respect of the Loans assigned to Agent Assignee pursuant to an Erroneous
Payment Deficiency Assignment shall be the sole property of Agent Assignee and shall not constitute a recovery of the Erroneous Payment).
17.19. UK
Loan Party Limitations. Notwithstanding anything to the contrary contained in this Agreement or in any other Loan Document, it
is acknowledged and agreed that no obligations and/or liabilities of any UK Loan Party under or in connection with any Loan Document (including
any Guarantied Obligations (as defined in any UK Security Document) or Lien granted by a UK Loan Party) the ("UK Loan Party Obligations")
will extend to include any obligation or liability to the extent that doing so would result in it constituting unlawful financial assistance
in any relevant jurisdiction (including within the meaning of sections 678 or 679 of the Companies Act 2006) as applicable to UK Loan
Parties.
[Remainder of Page Intentionally Left Blank;
Signature Pages Follow.]
-168-
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered as of the date first above written.
BORROWER:
COMTECH TELECOMMUNICATIONS CORP., a Delaware corporation
By:
Name:
Title:
Signature Page to Credit
Agreement
TCW ASSET MANAGEMENT COMPANY LLC, as Agent
By:
Name:
Suzanne Grosso
Title:
Managing Director
Signature Page to Credit
Agreement
WINGSPIRE CAPITAL LLC, as Revolving Agent and a Revolving Lender
By:
Name:
Title:
[Signature
Page to Credit Agreement]
EXHIBIT B
Amended Schedules 5.1 and 5.2 to the Credit
Agreement
(see attached)
EXHIBIT C
Form of Exclusive Technology License Agreement
(see attached)
EX-10.2 — EXHIBIT 10.2
EX-10.2
Filename: tm2617923d1_ex10-2.htm · Sequence: 6
Exhibit 10.2
Execution Version
AMENDMENT
No. 3 to SUBORDINATED CREDIT AGREEMENT
This
AMENDMENT NO. 3 TO SUBORDINATED CREDIT AGREEMENT (this “Amendment”) is entered into as of June 14,
2026, by and among COMTECH TELECOMMUNICATIONS CORP., a Delaware corporation (“Comtech” or the “Borrower”),
the Lenders identified on the signature pages hereof (which Lenders constitute all Lenders under the Subordinated Credit Agreement
immediately prior to the effectiveness of this Amendment), the Guarantors identified on the signature pages hereof, and U.S. BANK
TRUST COMPANY, NATIONAL ASSOCIATION, as administrative agent for each member of the Lender Group (in such capacity, together with
its successors and assigns in such capacity, “Agent”).
WHEREAS, Comtech, the Lenders
and Agent are parties to that certain Subordinated Credit Agreement, dated as of October 17, 2024 (as amended, restated, supplemented
or otherwise modified from time to time prior to the date hereof, the “Subordinated Credit Agreement” and as amended
by this Amendment, the “Amended Subordinated Credit Agreement”);
WHEREAS,
Comtech intends to consummate the Specified Permitted Individual Disposition and, in connection therewith, execute and deliver, among
other things, (i) a Securities Purchase Agreement in substantially the form attached hereto as Annex A (without giving effect
to any amendment, supplement or other modification thereto that could reasonably be expected to be adverse in any material respect to
the interests of the Lenders or the Loan Parties, the “Purchase Agreement”), and (ii) the Ancillary Agreements
(as defined in the Purchase Agreement) and other documents and agreements in substantially the forms attached hereto as Annex B (without
giving effect to any amendment, supplement or other modification thereto that could reasonably be expected to be adverse in any material
respect to the interests of the Lenders or the Loan Parties, and together with the Purchase Agreement, collectively, “Specified
Permitted Individual Disposition Documents”);
WHEREAS, the Subordinated Credit
Agreement requires that the Specified Permitted Individual Disposition be on terms, and subject to documentation, reasonably acceptable
to Agent (acting on behalf of the Required Lenders);
WHEREAS,
in connection with the Specified Permitted Individual Disposition, Comtech intends to execute and deliver on or before the date of execution
of the Purchase Agreement a Subscription and Exchange Agreement in substantially the form attached hereto as Annex C (without
giving effect to any amendment, supplement or other modification thereto that could reasonably be expected to be adverse in any material
respect to the interests of the Lenders or the Loan Parties, the “Exchange Agreement”), which Exchange Agreement shall
provide for the exchange of the Specified Preferred Equity for a new series of convertible preferred stock of Comtech on or around the
consummation of the Specified Permitted Individual Disposition; and
WHEREAS,
the Borrower has requested that (i) Agent (acting at the direction of the Required Lenders) acknowledge that the form of, and the
terms and conditions set forth in, the Specified Permitted Individual Disposition Documents are acceptable to the Agent (on behalf of
the Required Lenders), and (ii) Agent and each Lender party hereto agree to amend the Subordinated Credit Agreement in certain
respects as more specifically set forth herein, and Agent (at the written direction of the Lenders) and such Lenders have consented and
agreed to the foregoing, on the terms and conditions set forth herein.
NOW THEREFORE, in consideration
of the premises and mutual agreements herein contained, the parties hereto agree as follows:
1. Defined
Terms. Unless otherwise defined herein, capitalized terms used herein and not otherwise defined shall have the meanings ascribed to
such terms in the Amended Subordinated Credit Agreement.
2. Acknowledgement
to Specified Permitted Individual Disposition Documents.
(a) In
reliance upon the representations and warranties of Borrowers set forth in Section 8 below, and subject to the satisfaction
of the conditions set forth in Sections 6 and 7 below, on and as of the Amendment No. 3 Effective Date, Agent (at the
written direction of the Required Lenders) acknowledges that the form of, and the terms and conditions set forth in, the Specified Permitted
Individual Disposition Documents are acceptable to Agent (acting on behalf of the Required Lenders). Notwithstanding anything to the contrary
contained in any Loan Document, Agent (at the written direction of the Required Lenders) acknowledges that the consummation of the Specified
Permitted Individual Disposition pursuant to the Specified Permitted Individual Disposition Documents shall not result in a Change of
Control under clauses (e) or (f) of the definition thereof. Except as expressly set forth herein, the foregoing consent is limited
in nature and shall not constitute (a) a modification or alteration of the terms, conditions or covenants of the Subordinated Credit
Agreement or any other Loan Document or (b) a waiver, release or limitation upon the exercise by Agent or any Lender of any of their
respective rights, legal or equitable, thereunder.
(b) Notwithstanding
anything contained in any Loan Document to the contrary and in reliance upon the representations and warranties of Borrowers set forth
in Section 8 below, and subject to the satisfaction of the conditions set forth in Sections 6 and 7 below, on
and as of the Amendment No. 3 Effective Date, Agent (at the written direction of the Required Lenders) hereby consents to Comtech
Satellite Network Technologies Corp.’s execution and delivery of, and its performance of its obligations under (including, without
limitation, its exclusive licensing of the Intellectual Property described therein), an exclusive technology license agreement in substantially
the form attached as Exhibit C hereto so long as, and only to the extent that, the Intellectual Property exclusively licensed
therein is not material to the business of the Loan Parties taken as a whole. Except as expressly set forth herein, the foregoing consent
is limited in nature and shall not constitute (a) a modification or alteration of the terms, conditions or covenants of the Subordinated
Credit Agreement or any other Loan Document or (b) a waiver, release or limitation upon the exercise by Agent or any Lender of any
of their respective rights, legal or equitable, thereunder.
(c) Notwithstanding
the foregoing or anything else to the contrary contained herein or in the Amended Subordinated Credit Agreement, the foregoing shall not
constitute (or be construed to constitute) a waiver or other consent to non-compliance with the requirements set forth in clause (s),
subclauses (B) and (C) of the definition of “Permitted Dispositions”.
-2-
3. Amendments
to Subordinated Credit Agreement. In reliance upon the representations and warranties of the Loan Parties set forth in Section 8
below, and subject to the satisfaction of the conditions to effectiveness set forth in Section 6 below, the Subordinated Credit
Agreement is hereby amended (a) to delete red or green stricken text (indicated textually in the same manner as the following examples:
stricken text and stricken text)
and (b) to add the blue or green double-underlined text (indicated textually in the same manner as the following examples: double-underlined
text and double-underlined text), in each case, as set forth
in the conformed copy of the Subordinated Credit Agreement, as amended, attached hereto as Exhibit D.
4. Continuing
Effect. References in the Amended Subordinated Credit Agreement to “this Agreement” (and indirect references such as “hereunder”,
“hereby”, “herein”, and “hereof”) and in any Loan Document to the “Subordinated Credit Agreement”
shall be deemed to be references to the Amended Subordinated Credit Agreement as modified hereby. Except as expressly set forth in Sections 2
and 3 of this Amendment, nothing in this Amendment shall constitute a modification or alteration of the terms, conditions or covenants
of the Amended Subordinated Credit Agreement or any other Loan Document, or a waiver of any other terms or provisions thereof, and the
Amended Subordinated Credit Agreement and the other Loan Documents shall remain unchanged and shall continue in full force and effect,
in each case as modified hereby. This Amendment is a Loan Document.
5. Reaffirmation
and Confirmation. Each Loan Party hereby ratifies, affirms, acknowledges and agrees that the Amended Subordinated Credit Agreement
and the other Loan Documents to which it is a party represent its valid, enforceable and collectible obligations, and further acknowledges
that there are no existing claims, defenses, personal or otherwise, or rights of setoff whatsoever with respect to the Amended Subordinated
Credit Agreement or any other Loan Document. Each Loan Party hereby agrees that this Amendment in no way acts as a release or relinquishment
of the Liens and rights securing payments of the Obligations. The Liens and rights securing payment of the Obligations as amended by this
Amendment are hereby ratified and confirmed by each Loan Party in all respects.
6. Conditions
to Effectiveness. The effectiveness of this Amendment is subject to the fulfillment, to the reasonable satisfaction of the Required
Lenders (the execution and delivery by any such Lender of a signature page hereto being conclusive evidence of its reasonable satisfaction
with or waiver of the following), of each of the following conditions precedent (the first date upon which all such conditions shall have
been satisfied being hereinafter referred to as the “Amendment No. 3 Effective Date”):
(a) Agent
shall have received counterparts to this Amendment, duly executed and delivered, by the parties hereto:
(b) The
Agent and the Lenders shall have received a copy of the duly executed Amendment No. 4 to the Senior Credit Agreement;
(c) Agent
and Lenders shall have received a certificate from the Secretary (or such other officer) of the Borrower certifying to (i) the resolutions
of the Borrower’s board of directors authorizing its execution, delivery, and performance of the Loan Documents to which it is a
party and the warrants to be issued on the date hereof, and authorizing specific officers of the Borrower to execute the same, (ii) the
incumbency and signatures of each specific officers of such Loan Party, (iii) that the Governing Documents of the Borrower have not
been amended, restated, supplemented, altered or otherwise modified since the Amendment No. 1 Effective Date and (iv) a certificate
of good standing or status, as applicable, with respect to the Borrower, such certificate to be issued by the appropriate officer of the
jurisdiction of organization of the Borrower, which certificate shall indicate that the Borrower is in good standing and/or is validly
existing, as applicable, in such jurisdiction;
-3-
(d) Each
of the Lenders and the Agent shall have received all fees and other amounts due and payable by the Loan Parties on or prior to the Amendment
No. 3 Effective Date, to the extent invoiced, reimbursement or payment of all reasonable documented out-of-pocket expenses (including
fees, charges and disbursements of counsel) required to be reimbursed or paid by the Borrower under any Loan Document;
(e) the
representations and warranties of the Loan Parties set forth in Section 8 below shall be true and correct as of the date hereof;
(f) the
Magnetar Entities shall have received executed counterparts of a warrant agreement, in substantially the form of Exhibit A
attached hereto, entitling them to purchase, in aggregate, 500,000 shares of common Equity Interests of the Borrower;
(g) White
Hat Strategic Partners II LP (or one or more Affiliates or designees thereof) shall have received executed counterparts of a warrant agreement,
in substantially the form of Exhibit A attached hereto, entitling it or them to purchase, in aggregate, 125,000 shares of
common Equity Interests of the Borrower;
(h) Magnetar
Financial LLC, as representative of the investors under the Director Agreement, shall have received executed counterparts of the Director
Agreement, in substantially the form of Exhibit B attached hereto, entitling it to appoint a director nominee to the board
of directors of the Borrower; and
(i) no
Default or Event of Default shall have occurred and be continuing on the date hereof or as of the effectiveness of, and after giving effect
to, this Amendment.
7. Conditions
to Guaranty Release. Notwithstanding anything else to the contrary contained herein or in the Amended Subordinated Credit Agreement,
no Guarantor whose Equity Interests are sold or otherwise disposed of pursuant to the Purchase Agreement shall, in any event, be released
from the Guaranty provided thereby unless the requirements set forth in clause (s), subclauses (B) and (C) of the definition
of “Permitted Dispositions” are satisfied prior to or substantially concurrently with the consummation of the transactions
contemplated by the Purchase Agreement.
8. Representations
and Warranties. In order to induce Agent and the Lenders to enter into this Amendment, each Loan Party party hereto hereby represents
and warrants to Agent and Lenders that:
(a) After
giving effect to this Amendment, each of the representations and warranties made by any Loan Party or any of its Subsidiaries contained
in the Amended Subordinated Credit Agreement or in the other Loan Documents are true and correct in all material respects (except that
such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality
in the text thereof) on and as of the date hereof (except to the extent that such representations and warranties relate solely to an earlier
date, in which case such representations and warranties shall be true and correct in all material respects (except that such materiality
qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text
thereof)) as of such earlier date;
-4-
(b) no
Default or Event of Default has occurred and is continuing;
(c) the
execution, delivery and performance of this Amendment has been duly authorized by all requisite corporate, limited liability company or
equivalent, as applicable, action on the part of such Loan Party and this Amendment has been duly executed and delivered by such Loan
Party; and
(d) this
Amendment and the Loan Documents, as amended hereby, constitute legal, valid and binding obligations of the Loan Parties and are enforceable
against such Loan Parties in accordance with their respective terms, except as enforcement may be limited by equitable principles or by
bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to or limiting creditors' rights generally.
9. Direction
to Agent. Each undersigned Lender (i) hereby certifies that it is a Lender and that collectively the undersigned Lenders constitute
the Required Lenders under the Subordinated Credit Agreement, (ii) hereby authorizes and directs the Agent to promptly (x) execute
and deliver this Amendment, (y) consent to the Specified Permitted Individual Disposition and (z) execute and deliver that certain
Consent and Amendment No. 2 to Subordination and Intercreditor Agreement, dated as of the date hereof, in substantially the form
attached hereto as Exhibit E (the “Consent and Amendment”), and (iii) acknowledges and agrees that (A) the
Agent has executed this Amendment and the Consent and Amendment in reliance on the direction set forth in clause (ii) of this Section 9,
and (B) the Agent will not have any responsibility or liability for executing such documents or ascertaining or confirming whether
such documents are consistent with or comply with the terms of the Amended Subordinated Credit Agreement or any other Loan Document.
10. Miscellaneous.
(a) Expenses.
The Borrower and the other Loan Parties agree to pay on demand all reasonable and documented out-of-pocket group expenses of Agent and
the Lenders in connection with the preparation, negotiation, execution, delivery and administration of this Amendment in accordance with
the terms of the Amended Subordinated Credit Agreement.
(b) Severability.
Each provision of this Amendment shall be severable from every other provision of this Amendment for the purpose of determining the legal
enforceability of any specific provision.
(c) Choice
of Law and Venue; Jury Trial Waiver. Without limiting the applicability of any other provision of the Amended Subordinated Credit
Agreement or any other Loan Document, the terms and provisions set forth in Section 12 of the Amended Subordinated Credit Agreement
are expressly incorporated herein by reference; provided, that, to the extent that the reaffirmations, consents and confirmations
given by the Loan Parties in Section 5 and Section 11 hereof, as applicable, hereof relate to matters contained
in Loan Documents governed by, and construed in accordance with laws other than the State of New York, the laws governing those Loan Documents
shall apply thereto.
-5-
(d) Counterparts;
Electronic Execution. Without limiting the applicability of any other provision of the Amended Subordinated Credit Agreement or any
other Loan Document, the terms and provisions set forth in Section 17.7 of the Amended Subordinated Credit Agreement are expressly
incorporated herein by reference.
11. Consent
and Reaffirmation. Each Guarantor hereby (i) acknowledges receipt of a copy of the Amendment, (ii) consents to the Borrower's
and each other Guarantor’s execution and delivery of the Amendment; (iii) agrees to be bound by the terms and conditions hereof
(including, without limitation, Section 10 hereof); (iv) affirms that nothing contained herein shall modify in any respect
whatsoever any Loan Document to which it is a party except as expressly set forth herein; and (v) ratifies, affirms, acknowledges
and agrees that each of the Loan Documents to which such Guarantor is a party represents the valid, enforceable and collectible obligations
of such Guarantor, except as enforcement may be limited by equitable principles or by bankruptcy, insolvency, reorganization, moratorium,
or similar laws relating to or limiting creditors' rights generally, and further acknowledges that there are no existing claims, defenses,
personal or otherwise, or rights of setoff whatsoever with respect to the Subordinated Credit Agreement, the Amended Subordinated Credit
Agreement or any other such Loan Document. Each Guarantor hereby agrees that this Amendment in no way acts as a release or relinquishment
of the rights securing payments of the Obligations as amended by the Amendment. The rights securing payment of the Obligations as amended
by the Amendment are hereby ratified and confirmed by such Guarantor in all respects. Although each Guarantor has been informed of the
matters set forth herein and has acknowledged and agreed to same, each Guarantor understands that none of Agent or any Lender has any
obligation to inform any Guarantor of such matters in the future or to seek any Guarantor's acknowledgment or agreement to future amendments,
waivers or consents, and nothing herein shall create such a duty. Without limiting the applicability of any other provision of the Amended
Subordinated Credit Agreement or any other Loan Document, the terms and provisions set forth in Section 12 of the Amended Subordinated
Credit Agreement are expressly incorporated herein by reference; provided that, to the extent that reaffirmations, consents and
confirmations given by the Loan Parties in Section 5 hereof and in this Section 11, as applicable, relate to matters
contained in Loan Documents governed by, and construed in accordance with laws other than the laws of the State of New York, the laws
governing those Loan Documents shall apply thereto.
12. Release.
In consideration of the agreements of Agent and the Lenders contained herein and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, each Loan Party, on behalf of itself and its respective successors and assigns, hereby
absolutely, unconditionally and irrevocably releases, remises and forever discharges Agent and the Lenders, and their successors and assigns,
and their present and former shareholders, affiliates, subsidiaries, divisions, predecessors, directors, officers, attorneys, employees,
agents and other representatives (Agent, each Lender and all such other Persons being hereinafter referred to collectively as the "Releasees"
and individually as a "Releasee"), of and from all demands, actions, causes of action, suits, covenants, contracts, controversies,
agreements, promises, sums of money, accounts, bills, reckonings, damages and any and all other claims, counterclaims, defenses, rights
of set-off, demands and liabilities whatsoever (individually, a "Claim" and collectively, "Claims")
of every name and nature, known as of the date of this Amendment, both at law and in equity, which such Loan Party, or any of its respective
successors or assigns may now or hereafter own, hold, have or claim to have against the Releasees or any of them for, upon, or by reason
of any circumstance, action, cause or thing whatsoever which arises at any time on or prior to the day and date of this Amendment, in
each case for or on account of, or in relation to, or in any way in connection with any of the Subordinated Credit Agreement, or any of
the other Loan Documents or transactions thereunder or related thereto, except with respect to any Claim against any Releasee not known
to a Loan Party on the date hereof that a court of competent jurisdiction finally determines to have resulted from the gross negligence
or willful misconduct of such Releasee or its officers, directors, employees, attorneys or agents.
[Signature Pages Follow]
-6-
IN WITNESS WHEREOF, the parties
hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized and delivered as of the date first
above written.
BORROWER:
COMTECH TELECOMMUNICATIONS CORP., a Delaware corporation
By:
/s/ Michael A. Bondi
Name:
Michael A. Bondi
Title:
Chief Financial Officer
GUARANTORS:
COMTECH SATELLITE NETWORK TECHNOLOGIES, INC., a Delaware corporation
By:
/s/ Michael A. Bondi
Name:
Michael A. Bondi
Title:
Chief Financial Officer and Treasurer
SOLACOM TECHNOLOGIES (US), INC., a Delaware corporation
By:
/s/ Michael A. Bondi
Name:
Michael A. Bondi
Title:
Chief Financial Officer and Treasurer
NG-911, INC., an Iowa corporation
By:
/s/ Michael A. Bondi
Name:
Michael A. Bondi
Title:
Chief Financial Officer and Treasurer
TELECOMMUNICATIONS SYSTEMS, INC., a Maryland corporation
By:
/s/ Michael A. Bondi
Name:
Michael A. Bondi
Title:
Chief Financial Officer and Treasurer
Signature Page to Amendment No. 3 to Subordinated Credit
Agreement
COMTECH SYSTEMS, INC., a Delaware corporation
By:
/s/ Michael A. Bondi
Name:
Michael A. Bondi
Title:
Chief Financial Officer and Treasurer
MICRODATA, LLC, a Maryland limited liability company
By:
/s/ Donald E. Walther
Name:
Donald E. Walther
Title:
Secretary
NEXTGEN COMMUNICATIONS, INC., a Maryland corporation
By:
/s/ Donald E. Walther
Name:
Donald E. Walther
Title:
Secretary
NEXTGEN COMMUNICATIONS. INC., a Virginia corporation
By:
/s/ Donald E. Walther
Name:
Donald E. Walther
Title:
Secretary
COMTECH NEXTGEN LLC, a Delaware limited liability company
By:
/s/ Michael A. Bondi
Name:
Michael A. Bondi
Title:
Chief Financial Officer and Treasurer
Signature Page to Amendment No. 3 to Subordinated Credit
Agreement
COMTECH MOBILE DATACOM LLC, a Delaware limited liability company
By:
/s/ Michael A. Bondi
Name:
Michael A. Bondi
Title:
Chief Accounting Officer and Treasurer
COMTECH TACTICAL EUROPE LLC, a Delaware limited liability company
By:
/s/ Michael A. Bondi
Name:
Michael A. Bondi
Title:
Chief Financial Officer and Treasurer
MICRODATA GIS, INC., a Vermont corporation
By:
/s/ Donald E. Walther
Name:
Donald E. Walther
Title:
Secretary
MAPLE ACQUISITION LLC, a Maryland limited liability company
By:
/s/ Donald E. Walther
Name:
Donald E. Walther
Title:
Secretary
OLIVE ACQUISITION LLC, a Maryland limited liability company
By:
/s/ Donald E. Walther
Name:
Donald E. Walther
Title:
Secretary
ANGELS ACQUISITION CORP., a Delaware corporation
By:
/s/ Donald E. Walther
Name:
Donald E. Walther
Title:
Secretary
Signature Page to Amendment No. 3 to Subordinated Credit
Agreement
COMTECH AEROASTRO, INC., a Delaware corporation
By:
/s/ Donald E. Walther
Name:
Donald E. Walther
Title:
Secretary
COMTECH ANTENNA SYSTEMS, INC., a Delaware corporation
By:
/s/ Donald E. Walther
Name:
Donald E. Walther
Title:
Secretary
COMTECH COMMUNICATIONS CORPORATION, a Delaware corporation
By:
/s/ Donald E. Walther
Name:
Donald E. Walther
Title:
Secretary
COMTECH COMSTREAM, INC., a Delaware corporation
By:
/s/ Donald E. Walther
Name:
Donald E. Walther
Title:
Secretary
COMTECH TOLT TECHNOLOGIES, INC., a Delaware corporation
By:
/s/ Donald E. Walther
Name:
Donald E. Walther
Title:
Secretary
Signature Page to Amendment No. 3 to Subordinated Credit
Agreement
TIERNAN RADYNE COMSTREAM, INC., a Delaware corporation
By:
/s/ Donald E. Walther
Name:
Donald E. Walther
Title:
Secretary
NETWORKS IN MOTION, INC., a Delaware corporation
By:
/s/ Donald E. Walther
Name:
Donald E. Walther
Title:
Secretary
SOLVERN INNOVATIONS, INC., a Maryland corporation
By:
/s/ Donald E. Walther
Name:
Donald E. Walther
Title:
Secretary
CSNTI PRODUCTS CO, LLC, a Delaware limited liability company
by its sole member
Comtech Satellite Network Technologies Inc
By:
/s/ Michael A. Bondi
Name:
Michael A. Bondi
Title:
Chief Financial Officer and Treasurer
CMTL SERVICES CO, LLC, a Texas limited liability company
by its sole member
Comtech Telecommunications Corp.
By:
/s/ Michael A. Bondi
Name:
Michael A. Bondi
Title:
Chief Financial Officer
Signature Page to Amendment No. 3 to Subordinated Credit
Agreement
COMTECH SATELLITE NETWORK TECHNOLOGIES CORP., a Canadian federal corporation
By:
/s/ Michael A. Bondi
Name:
Michael A. Bondi
Title:
Chief Accounting Officer
COMTECH SOLACOM TECHNOLOGIES, INC., a Canadian federal corporation
By:
/s/ Michael A. Bondi
Name:
Michael A. Bondi
Title:
Chief Accounting Officer and Assistant Secretary
COMTECH UK HOLDINGS LIMITED, a United Kingdom Limited Corporation
By:
/s/ Michael A. Bondi
Name:
Michael A. Bondi
Title:
Director
CGC TECHNOLOGY LIMITED, a United Kingdom Limited Corporation
By:
/s/ Michael A. Bondi
Name:
Michael A. Bondi
Title:
Director
Signature Page to Amendment No. 3 to Subordinated Credit
Agreement
AGENT:
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, solely in its capacity as Agent
By:
/s/ James A. Hanley
Name:
James A. Hanley
Title:
Senior Vice President
Signature Page to Amendment No. 3 to Subordinated Credit
Agreement
LENDERS:
MAGNETAR ALPHA STAR FUND LLC, as a Lender
By: Magnetar Financial LLC, its investment manager
By:
/s/ Lavonne Harris
Name:
Lavonne Harris
Title:
Chief Financial Officer – Funds
MAGNETAR LAKE CREDIT FUND LLC, as a Lender
By: Magnetar Financial LLC, its manager
By:
/s/ Lavonne Harris
Name:
Lavonne Harris
Title:
Chief Financial Officer – Funds
MAGNETAR LONGHORN FUND LP, as a Lender
By: Magnetar Financial LLC, its investment manager
By:
/s/ Lavonne Harris
Name:
Lavonne Harris
Title:
Chief Financial Officer – Funds
MAGNETAR CAPITAL FUND II LP, as a Lender
By: Magnetar Financial LLC, its general partner
By:
/s/ Lavonne Harris
Name:
Lavonne Harris
Title:
Chief Financial Officer – Funds
Signature Page to Amendment No. 3 to Subordinated Credit
Agreement
MAGNETAR STRUCTURED CREDIT FUND, LP, as a Lender
By: Magnetar Financial LLC, its general partner
By:
/s/ Lavonne Harris
Name:
Lavonne Harris
Title:
Chief Financial Officer – Funds
PURPOSE ALTERNATIVE CREDIT FUND – F LLC, as a Lender
By: Magnetar Financial LLC, its investment manager
By:
/s/ Lavonne Harris
Name:
Lavonne Harris
Title:
Chief Financial Officer – Funds
PURPOSE ALTERNATIVE CREDIT FUND – T LLC, as a Lender
By: Magnetar Financial LLC, its investment manager
By:
/s/ Lavonne Harris
Name:
Lavonne Harris
Title:
Chief Financial Officer – Funds
Signature Page to Amendment No. 3 to Subordinated Credit
Agreement
WHITE HAT STRATEGIC PARTNERS II LP, as a Lender
By: White Hat SP GP II LLC, its General Partner
By:
/s/ Mark Quinlan
Name:
Mark Quinlan
Title:
Managing Member
Signature Page to Amendment No. 3 to Subordinated Credit
Agreement
ANNEX A
Securities Purchase Agreement
(see attached)
ANNEX B
Other Specified Permitted Individual Disposition
Documents
Annex B-1: Form of Escrow Agreement
Annex B-2: Form of Government Contract Transition Agreement
Annex B-3: Form of Transition Services Agreement
Annex B-4: Form of Intellectual Property and Information Technology
Assignment Agreement
ANNEX B-1
Form of
Escrow Agreement
(see attached)
ANNEX B-2
Form of
Government Contract Transition Agreement
(see attached)
ANNEX B-3
Form of
Transition Services Agreement
(see attached)
ANNEX B-4
Form of
Intellectual Property and Information Technology Assignment Agreement
(see attached)
ANNEX C
Subscription and Exchange Agreement
(see attached)
EXHIBIT A
Form of Warrant
(see attached)
EXHIBIT B
Form of Director Agreement
(see attached)
EXHIBIT C
Form of Exclusive Technology License Agreement
(see attached)
EXHIBIT D
Amended Subordinated Credit Agreement
(see attached)
EXHIBIT A TO AMENDMENT
NO. 23 TO SUBORDINATED
CREDIT AGREEMENT
SUBORDINATED CREDIT AGREEMENT
by and among
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
as Agent,
THE LENDERS THAT ARE PARTIES HERETO
as the Lenders,
and
COMTECH TELECOMMUNICATIONS CORP.,
and
THE GUARANTORS THAT ARE PARTIES
FROM TIME TO TIME HERETO
Dated as of October 17, 2024
TABLE OF CONTENTS
Page
1. DEFINITIONS
AND CONSTRUCTION
1
1.1. Definitions
1
1.2. Accounting
Terms
3536
1.3. Construction
3536
1.4. Time
References
3637
1.5. Schedules
and Exhibits
3637
1.6. Divisions
3637
2. LOANS
AND TERMS OF PAYMENT
3637
2.1. [Reserved]
3637
2.2. Term
Loan
3637
2.3. Disbursement
of Funds
3738
2.4. Payments;
Prepayments
3838
2.5. Promise
to Pay; Promissory Notes
4243
2.6. Make-Whole
Amount; Interest
4243
2.7. Crediting
Payments
4344
2.8. Designated
Account
4444
3. CONDITIONS;
TERM OF AGREEMENT
4444
3.1. Conditions
Precedent to the Initial Extension of Credit
4444
3.2. Maturity
4445
3.3. Effect
of Maturity
4445
4. REPRESENTATIONS
AND WARRANTIES
4445
4.1. Due
Organization and Qualification; Subsidiaries
4544
4.2. Due
Authorization; No Conflict
4546
4.3. Governmental
Consents
4647
4.4. Binding
Obligations
4647
4.5. Title
to Assets; No Encumbrances
4647
4.6. Litigation
4747
4.7. Compliance
with Laws
4747
4.8. [Reserved]
4748
4.9. [Reserved]
4748
4.10. Employee
Benefits
4748
-i-
TABLE OF CONTENTS
(continued)
Page
4.11. Environmental
Condition
4849
4.12. Complete
Disclosure
4950
4.13. Patriot
Act, etc.
4950
4.14. Payment
of Taxes
5050
4.15. Margin
Stock
5050
4.16. Governmental
Regulation
5051
4.17. OFAC;
Sanctions; Anti-Corruption Laws; Anti-Money Laundering Laws
5051
4.18. Employee
and Labor Matters
5151
4.19. Leases
5152
4.20. Material
Contracts
5152
5. AFFIRMATIVE
COVENANTS.
5152
5.1. Financial
Statements, Reports, Certificates
5252
5.2. Reporting
5253
5.3. Existence
5253
5.4. Maintenance
of Properties
5253
5.5. Taxes
5353
5.6. Insurance
5353
5.7. Additional
Information
5354
5.8. Compliance
with Laws
5354
5.9. Environmental
5354
5.10. Disclosure
Updates
5455
5.11. Additional
Guarantors
5455
5.12. Weekly
Calls
5455
5.13. Transformation
Plan
5555
5.14. Management
Incentive Plans
5556
5.15. [Reserved]
5556
5.16. OFAC;
Sanctions; Anti-Corruption Laws; Anti-Money Laundering Laws
5556
5.17. Material
Contracts
5556
5.18. Compliance
with ERISA and the IRC
5656
-ii-
TABLE OF CONTENTS
(continued)
Page
6. NEGATIVE
COVENANTS
5657
6.1. Indebtedness
5657
6.2. Liens
5657
6.3. Restrictions
on Fundamental Changes
5657
6.4. Disposal
of Assets
5758
6.5. Nature
of Business
5758
6.6. Prepayments,
Payments of Certain Indebtedness and Amendments
5758
6.7. Restricted
Payments
5859
6.8. Accounting
Methods
5960
6.9. Investments
5960
6.10. Transactions
with Affiliates
5960
6.11. Use
of Proceeds
6061
6.12. Limitation
on Issuance of Equity Interests
6162
6.13. Inventory
with Bailees
6162
6.14. Sale
Leaseback Transactions
6162
6.15. Employee
Benefits
6262
6.16. Non-Loan
Party Subsidiaries
6263
6.17. Canadian
Pension Matters
6263
6.18. Anti-Layering
6263
6.19. Tax
Classification
6363
7. FINANCIAL
COVENANTS
6363
8. EVENTS
OF DEFAULT
6464
8.1. Payments
6464
8.2. Covenants
6465
8.3. Judgments
6565
8.4. Voluntary
Bankruptcy
6565
8.5. Involuntary
Bankruptcy
6565
8.6. [Reserved]
6566
8.7. Representations
6566
8.8. Guaranty
6566
8.9. Defaults
Under Other Agreements
6566
8.10. Loan
Documents
6666
-iii-
TABLE OF CONTENTS
(continued)
Page
8.11. Change
of Control
6667
8.12. ERISA
6667
8.13. [Reserved]
6667
8.14. Material
Contracts
6667
8.15. Conduct
of Business
6667
9. RIGHTS
AND REMEDIES
6767
9.1. Rights
and Remedies
6767
9.2. Remedies
Cumulative
6768
9.3. Curative
Equity
6768
10. WAIVERS;
INDEMNIFICATION
6970
10.1. Demand;
Protest; etc.
6970
10.2. [Reserved]
6970
10.3. Indemnification
6970
11. NOTICES
7071
12. CHOICE
OF LAW AND VENUE; JURY TRIAL WAIVER.
7272
13. ASSIGNMENTS;
SUCCESSORS
7374
13.1. Assignments
7374
13.2. Successors
7676
14. AMENDMENTS;
WAIVERS.
7677
14.1. Amendments
and Waivers
7677
14.2. Replacement
of Certain Lenders
7879
14.3. No
Waivers; Cumulative Remedies
7979
15. AGENT;
THE LENDER GROUP
7980
15.1. Appointment
and Authorization of Agent
7980
15.2. Delegation
of Duties
8081
15.3. Liability
of Agent
8081
15.4. Reliance
by Agent
8181
15.5. Notice
of Default or Event of Default
8182
15.6. Credit
Decision
8282
15.7. Costs
and Expenses; Indemnification
8283
15.8. Agent
in Individual Capacity
8384
15.9. Successor
Agent
8384
-iv-
TABLE OF CONTENTS
(continued)
Page
15.10. Lender
in Individual Capacity
8484
15.11. Restrictions
on Actions by Lenders; Sharing of Payments
8485
15.12. Payments
by Agent to the Lenders
8485
15.13. Several
Obligations; No Liability
8585
15.14. Erroneous
Payments
8586
16. WITHHOLDING
TAXES.
8788
16.1. Payments
8788
16.2. Exemptions
8888
16.3. Reductions
9090
16.4. Refunds
9091
16.5. Administrative
Agent
9091
17. GENERAL
PROVISIONS.
9191
17.1. Effectiveness
9191
17.2. Section Headings
9192
17.3. Interpretation
9192
17.4. Severability
of Provisions
9192
17.5. [Reserved]
9192
17.6. Debtor-Creditor
Relationship
9192
17.7. Counterparts;
Electronic Execution
9192
17.8. Revival
and Reinstatement of Obligations
9293
17.9. Confidentiality
9293
17.10. Survival
9495
17.11. Patriot
Act; Due Diligence
9495
17.12. Integration
9595
17.13. UK
Loan Party Limitations
9595
18. GUARANTY.
9596
18.9. Waivers
9999
19. SUBORDINATION
AGREEMENT
1001
-v-
EXHIBITS AND SCHEDULES
Exhibit A-1
Form of Assignment and Acceptance
Exhibit C-1
Form of Compliance Certificate
Exhibits T-1 to T-4
Forms of U.S. Tax Compliance Certificates
Schedule A-1
Agent's Account
Schedule A-2
Authorized Persons
Schedule C-1
Commitments
Schedule D-1
Designated Account
Schedule 3.1
Conditions Precedent
Schedule 5.1
Financial Statements, Reports, Certificates
-vi-
SUBORDINATED CREDIT AGREEMENT
THIS
SUBORDINATED CREDIT AGREEMENT, is entered into as of October 17, 2024, by and among the lenders identified on the signature
pages hereof (each of such lenders, together with its successors and permitted assigns, is referred to hereinafter as a "Lender",
as that term is hereinafter further defined), U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as administrative agent for each
member of the Lender Group (in such capacity, together with its successors and assigns in such capacity, "Agent"), and
COMTECH TELECOMMUNICATIONS CORP., a Delaware corporation ("Comtech" or the "Borrower").
The parties agree as follows:
1. DEFINITIONS AND CONSTRUCTION.
1.1. Definitions.
As used in this Agreement, (x) capitalized terms used herein but not defined herein have the respective meanings ascribed thereto
in the Senior Credit Agreement (as defined below) and (y) otherwise the following terms shall have the following definitions:
"Accounting Changes"
means changes in accounting principles required by the promulgation of any rule, regulation, pronouncement or opinion by the Financial
Accounting Standards Board of the American Institute of Certified Public Accountants (or successor thereto or any agency with similar
functions).
"Acquired Indebtedness"
means Indebtedness of a Person whose assets or Equity Interests are acquired by a Loan Party or any of its Subsidiaries in a Permitted
Acquisition; provided, that such Indebtedness (a) is either purchase money Indebtedness or a Capital Lease with respect to
Equipment or mortgage financing with respect to Real Property, (b) was in existence prior to the date of such Permitted Acquisition,
and (c) was not incurred in connection with, or in contemplation of, such Permitted Acquisition.
"Acquisition"
means (a) the purchase or other acquisition by a Person or its Subsidiaries of all or substantially all of the assets of (or any
division or business line of) any other Person, or (b) the purchase or other acquisition (whether by means of a merger, amalgamation,
consolidation, or otherwise) by a Person or its Subsidiaries of all of the Equity Interests of any other Person.
"Administrative Questionnaire"
has the meaning specified therefor in Section 13.1(a)(ii)(G) of this Agreement.
"Affiliate"
means, as applied to any Person, any other Person who controls, is controlled by, or is under common control with, such Person.
For purposes of this definition, "control" means the possession, directly or indirectly through one or more intermediaries,
of the power to direct the management and policies of a Person, whether through the ownership of Equity Interests, by contract, or otherwise;
provided, that for purposes of Section 6.10 of this Agreement: (a) if any Person owns directly or indirectly
10% or more of the Equity Interests having ordinary voting power for the election of directors or other members of the governing body
of a Person or 10% or more of the partnership or other ownership interests of a Person (other than as a limited partner of such Person),
then both such Persons shall be Affiliates of each other, (b) each director (or comparable manager) of a Person shall be deemed
to be an Affiliate of such Person, and (c) each partnership in which a Person is a general partner shall be deemed an Affiliate
of such Person.
"Agent" has
the meaning specified therefor in the preamble to this Agreement.
"Agent-Related Persons"
means the Agent, together with its Affiliates, officers, directors, employees, attorneys, and agents.
"Agent's Account"
means the deposit account of Agent identified on Schedule A-1 to this Agreement (or such other deposit account of Agent that has
been designated as such, in writing, by Agent to Borrower and the Lenders).
"Agreement"
means this Subordinated Credit Agreement, as amended, restated, amended and restated, supplemented or otherwise modified from time to
time.
“Amendment No. 1”
means the Waiver and Amendment No. 1 to Subordinated Credit Agreement, dated as March 3, 2025, by and among the Borrower, the
Lenders party thereto, the Guarantors party thereto, and the Agent.
“Amendment No. 1
Effective Date” has the meaning set forth in Amendment No. 1.
“Amendment No. 1
Term Loan Commitment” means, with respect to each Amendment No. 1 Term Loan Lender, the commitment of such Amendment No. 1
Term Loan Lender to make an Amendment No. 1 Term Loan hereunder on the Amendment No. 1 Effective Date pursuant to Section 2.2(c).
The amount of each Amendment No. 1 Term Loan Lender’s Amendment No. 1 Term Loan Commitment as of the Amendment No. 1
Effective Date is set forth on Schedule 1 to Amendment No. 1. The aggregate amount of the Amendment No. 1 Term Loan
Commitments as of the Amendment No. 2 Effective Date is $0.
“Amendment
No. 1 Term Loan Lender” means a Term Loan Lender with an Amendment No. 1 Term Loan Commitment on the Amendment No. 1
Effective Date (and, after the borrowing of the Amendment No. 1 Term Loans on the Amendment No. 1 Effective Date, any
Lender holding an Amendment No. 1 Term Loan).
“Amendment No. 1
Term Loans” means the Term Loans made pursuant to Section 2.2(c) hereof.
“Amendment No. 2”
means the Amendment No. 2 to Subordinated Credit Agreement, dated as of July 21, 2025, by and among the Borrower, the Lenders
party thereto, the Guarantors party thereto, and the Agent.
“Amendment No. 2
Effective Date” has the meaning set forth in Amendment No. 2.
“Amendment No. 2
Priority Term Loan Commitment” means, with respect to each Amendment No. 2 Priority Term Loan Lender, the commitment of
such Amendment No. 2 Priority Term Loan Lender to make an Amendment No. 2 Priority Term Loan hereunder on the Amendment No. 2
Effective Date pursuant to Section 2.2(d). The amount of each Amendment No. 2 Priority Term Loan Lender’s Amendment
No. 2 Priority Term Loan Commitment as of the Amendment No. 2 Effective Date is set forth on Schedule 1 to Amendment
No. 2. The aggregate amount of the Amendment No. 2 Priority Term Loan Commitments as of the Amendment No. 2 Effective
Date is $35,000,000.
-2-
“Amendment No. 2
Priority Term Loan Lender” means a Term Loan Lender with an Amendment No. 2 Priority Term Loan Commitment on the Amendment
No. 2 Effective Date (and, after the borrowing of the Amendment No. 2 Priority Term Loans on the Amendment No. 2 Effective
Date, any Lender holding an Amendment No. 2 Priority Term Loan).
“Amendment No. 2
Priority Term Loans” means the Term Loans made pursuant to Section 2.2(d) hereof.
“Amendment
No. 2 to Senior Credit Agreement” means that certain Waiver and Amendment No. 2 to Credit Agreement, dated as of
March 3, 2025, by and among the Borrower, the lenders party thereto, the Guarantors party thereto, and the Senior Credit
Agreement Agent.
“Amendment
No. 3” means the Amendment No. 3
to Subordinated Credit Agreement, dated as of June 14, 2026, by and among the Borrower, the Lenders party thereto, the Guarantors
party thereto, and the Agent.
“Amendment
No. 3 Effective Date” has the meaning set forth in Amendment No. 3.
“Amendment
No. 3 to Senior Credit Agreement” means that certain Amendment No. 3 to Credit Agreement, dated as of July 21,
2025, by and among the Borrower, the lenders party thereto, the Guarantors party thereto, the Senior Credit Agreement Agent and the Senior
Credit Agreement Revolving Agent.
“Amendment
No. 4 to Senior Credit Agreement” means that certain Consent and Amendment No. 4 to Credit Agreement, dated as of June 14,
2026, by and among the Borrower, the lenders party thereto, the Guarantors party thereto, the Senior Credit Agreement Agent and the Senior
Credit Agreement Revolving Agent.
"Anti-Corruption Laws"
means the FCPA, the U.K. Bribery Act of 2010, as amended, and all other applicable laws and regulations or ordinances concerning or relating
to bribery, money laundering or corruption in any jurisdiction in which any Loan Party or any of its Subsidiaries or Affiliates is located
or is doing business.
"Anti-Money Laundering
Laws" means the applicable laws or regulations in any jurisdiction in which any Loan Party or any of its Subsidiaries or Affiliates
is located or is doing business that relates to money laundering, any predicate crime to money laundering, or any financial record keeping
and reporting requirements related thereto.
"Application Event"
means the occurrence of (a) a failure by Borrower to repay all of the Obligations in full on the Maturity Date, or (b) an Event
of Default and the election by Agent (at the direction of the Required Lenders) or the Required Lenders to require that payments be applied
pursuant to Section 2.4(b)(iii) of this Agreement.
-3-
"Assignee"
has the meaning specified therefor in Section 13.1(a) of this Agreement.
"Assignment and Acceptance"
means an Assignment and Acceptance Agreement substantially in the form of Exhibit A-1 to this Agreement, or such other form
acceptable to Agent.
"Authorized Person"
means any one of the individuals identified as an officer of the Borrower on Schedule A-2 to this Agreement, as such Schedule
is updated from time to time by written notice from Borrower to Agent.
“Average Liquidity"
means, with respect to any fiscal quarter, the sum of the aggregate amount of Liquidity for each week in such period (calculated as of
the end of each applicable week) divided by the number of weeks in such period.
"Bankruptcy Code"
means title 11 of the United States Code, as in effect from time to time.
"Benefit Plan"
means a "defined benefit plan" (as defined in Section 3(35) of ERISA) for which any Loan Party or any of its Subsidiaries
or ERISA Affiliates has been an "employer" (as defined in Section 3(5) of ERISA) within the past six years.
"Board of Directors"
means, as to any Person, the board of directors (or comparable managers or other governing body or Person) of such Person, or any committee
thereof duly authorized to act on behalf of the board of directors (or comparable managers or other governing body or Person).
"Board of Governors"
means the Board of Governors of the Federal Reserve System of the United States (or any successor).
"Borrower"
has the meaning specified therefor in the preamble to this Agreement.
"Borrower Materials"
has the meaning specified therefor in Section 17.9(c) of this Agreement.
"Business Day"
means any day that is not a Saturday, Sunday or other day on which the Federal Reserve Bank of New York or the office of the Agent is
authorized or required by law to remain is closed.
"Canadian AML Laws"
means Part II.I of the Criminal Code, R.S.C. 1985, c. C-46, The Proceeds of Crime (Money Laundering) and Terrorist Financing
Act, S.C. 2000, c. 17 and the United Nations Act, R.S.C. 1985, c.U-2 or any similar Canadian legislation, together with all
rules, regulations and interpretations thereunder or related thereto including the Regulations Implementing the United Nations Resolutions
on the Suppression of Terrorism and the United Nations Al-Qaida and Taliban Regulations promulgated under the United Nations Act.
-4-
"Canadian Defined Benefit
Pension Plan" means a Canadian Pension Plan, which contains a “defined benefit provision,” as defined in subsection
147.1(1) of the Income Tax Act (Canada).
"Canadian Loan Party"
means (a) as of the Closing Date, Comtech Satellite Network Technologies Corp. and Comtech Solacom Technologies, Inc. and (b) each
other Person organized under the federal, provincial or territorial laws of Canada that becomes a Loan Party after the Closing Date pursuant
to Section 5.11 of this Agreement.
"Canadian Pension Benefits
Legislation" means the Pension Benefits Act (Ontario), and any Canadian federal, provincial, territorial or local counterparts
or equivalents, in each case, as applicable and as amended from time to time.
"Canadian Pension Plan"
means a pension plan that is subject to the Canadian Pension Benefits Legislation and the Income Tax Act (Canada) and that is
either (a) maintained or sponsored by any Loan Party for employees or (b) maintained pursuant to a collective bargaining agreement,
or other arrangement under which more than one employer makes contributions and to which any Loan Party is making or accruing an obligation
to make contributions or has within the preceding five years made or accrued such contributions, but excludes a statutory benefit plan
which any Loan Party is required to participate in or comply with, including the Canada Pension Plan and the Quebec Pension Plan.
"Capital Expenditures"
means, with respect to any Person for any period, the amount of all expenditures by such Person and its Subsidiaries during such period
that are capital expenditures as determined in accordance with GAAP, whether such expenditures are paid in cash or financed, but excluding,
without duplication (a) with respect to the purchase price of assets that are purchased substantially contemporaneously with the
trade-in of existing assets during such period, the amount that the gross amount of such purchase price is reduced by the credit granted
by the seller of such assets for the assets being traded in at such time and (b) expenditures made during such period to consummate
one or more Permitted Acquisitions.
"Capital Lease"
means a lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, that is required
to be classified and accounted for as capital leases on a balance sheet in accordance with GAAP.
"Capitalized Lease
Obligation" means that portion of the obligations under a Capital Lease that is required to be capitalized in accordance with
GAAP.
"Cash Equivalents"
means (a) marketable direct obligations issued by, or unconditionally guaranteed by, the United States or issued by any agency thereof
and backed by the full faith and credit of the United States, in each case maturing within one year from the date of acquisition thereof,
(b) marketable direct obligations issued or fully guaranteed by any state of the United States or any political subdivision of any
such state or any public instrumentality thereof maturing within one year from the date of acquisition thereof and, at the time of acquisition,
having one of the two highest ratings obtainable from either Standard & Poor's Rating Group ("S&P") or
Moody's Investors Service, Inc. ("Moody's"), (c) commercial paper maturing no more than 270 days from the
date of creation thereof and, at the time of acquisition, having a rating of at least A-1 from S&P or at least P-1 from Moody's,
(d) certificates of deposit, time deposits, overnight bank deposits or bankers' acceptances maturing within one year from the date
of acquisition thereof issued by any bank organized under the laws of the United States or any state thereof or the District of Columbia
or any United States branch of a foreign bank having at the date of acquisition thereof combined capital and surplus of not less than
$1,000,000,000, (e) Deposit Accounts maintained with (i) any bank that satisfies the criteria described in clause (d) above,
or (ii) any other bank organized under the laws of the United States or any state thereof so long as the full amount maintained
with any such other bank is insured by the Federal Deposit Insurance Corporation, (f) repurchase obligations of any commercial bank
satisfying the requirements of clause (d) of this definition or of any recognized securities dealer having combined capital and
surplus of not less than $1,000,000,000, having a term of not more than seven days, with respect to securities satisfying the criteria
in clauses (a) or (d) above, (g) debt securities with maturities of six months or less from the date of acquisition backed
by standby letters of credit issued by any commercial bank satisfying the criteria described in clause (d) above, and (h) Investments
in money market funds substantially all of whose assets are invested in the types of assets described in clauses (a) through (g) above.
-5-
"Cash Management Services"
means any cash management or related services including treasury, depository, return items, overdraft, controlled disbursement, merchant
store value cards, e-payables services, electronic funds transfer, interstate depository network, automatic clearing house transfer (including
the Automated Clearing House processing of electronic funds transfers through the direct Federal Reserve Fedline system) and other cash
management arrangements.
"Change of Control"
means that:
(a) any
Person, or two or more Persons acting in concert (other than Permitted Holders), shall have acquired beneficial ownership, directly or
indirectly, of Equity Interests of Comtech (or other securities convertible into such Equity Interests) representing 35% or more of the
combined voting power of all Equity Interests of Comtech entitled (without regard to the occurrence of any contingency) to vote for the
election of members of the Board of Directors of Comtech,
(b) any
Person, or two or more Persons acting in concert (other than Permitted Holders), shall have acquired by contract or otherwise, or shall
have entered into a contract or arrangement that, upon consummation thereof, will result in its or their acquisition of the power to
exercise, directly or indirectly, a controlling influence over the management or policies of Comtech or control over the Equity Interests
of such Person entitled to vote for members of the Board of Directors of Comtech on a fully-diluted basis (and taking into account all
such Equity Interests that such Person or group has the right to acquire pursuant to any option right) representing 35% or more of the
combined voting power of such Equity Interests,
(c) the
Permitted Holders fail to own and control, directly or indirectly, a majority of the outstanding shares of the Specified Preferred Equity,
(d) a
majority of the members of the Board of Directors of Comtech do not constitute Continuing Directors,
-6-
(e) Comtech
fails to own and control, directly or indirectly, 100% of the Equity Interests of each other Loan Party other than (a) in connection
with a sale of all (but not less than all) of the Equity Interests of a Loan Party pursuant to a transaction permitted by Section 6.4
or (b) in connection with an Investment permitted by Section 6.9 in a joint venture or other non-wholly-owned Subsidiary
that is or becomes a Loan Party,
(f) any
sale of all or substantially all of the property or assets of Comtech and its Subsidiaries other than in a sale or transfer to another
Loan Party, or
(g) the
occurrence of any "Change of Control" (or, in each case, similar event, however denominated) under and as defined in any Specified
Preferred Equity Document, any indenture or other agreement or instrument evidencing, governing the rights of the holders of or otherwise
relating to any Indebtedness in an aggregate amount greater than $10,000,000 of Comtech or any Subsidiaries or any certificate of designations
(or other provision of the organizational documents of Comtech) relating to, or any other agreement governing the rights of the holders
of, any Disqualified Equity Interests.
"Closing Date"
means October 17, 2024.
"Closing Date Term
Loan" has the meaning specified therefor in Section 2.2(a).
“Closing
Date Term Loan Commitment” means, with respect to each Closing Date Term Loan Lender, the commitment of such Closing Date Term
Loan Lender to make a Closing Date Term Loan hereunder on the Closing Date pursuant to Section 2.2(a). The amount of each
Closing Date Term Loan Lender’s Closing Date Term Loan Commitment as of the Closing Date is set forth on Schedule C-1 hereto
or in the Assignment and Acceptance pursuant to which such Lender became a Closing Date Term Loan Lender under this Agreement,
as such amounts may be reduced or increased from time to time pursuant to assignments made in accordance with the provisions of Section 13.1
of this Agreement. The aggregate amount of the Closing Date Term Loan Commitments as of the Amendment No. 2 Effective Date is $0.
“Closing Date Term
Loan Lender” means a Term Loan Lender with a Closing Date Term Loan Commitment on the Closing Date (and, after the borrowing
of the Closing Date Term Loans on the Closing Date, any Lender holding a Closing Date Term Loan).
"Compliance Certificate"
means a certificate substantially in the form of Exhibit C-1 to this Agreement delivered by the chief financial officer or
treasurer of Comtech to Agent.
"Comtech"
has the meaning specified therefor in the preamble to this Agreement.
"Confidential Information"
has the meaning specified therefor in Section 17.9(a) of this Agreement.
"Continuing Director"
means (a) any member of the Board of Directors who was a director (or comparable manager) of Comtech on the Closing Date, (b) any
individual who becomes a member of the Board of Directors after the Closing Date if such individual was approved, appointed or nominated
for election to the Board of Directors by a majority of the Continuing Directors, and (c) any member of the Board of Directors that
was nominated by the Permitted Holders pursuant to the terms of the Specified Preferred Equity Documents.
-7-
“Cooperation
Agreement” means that certain Cooperation Agreement, dated on or around the
Amendment No. 3 Effective Date, by and between the Borrower
and Magnetar Financial LLC, as representative of the investors thereunder, in substantially the form of Exhibit B attached to Amendment
No. 3.
"Curative Equity"
means the amount of proceeds received by Comtech from the issuance of Qualified Equity Interests in immediately available funds, which
proceeds are designated "Curative Equity" by Borrowers under Section 9.3 of this Agreement at the time it is contributed.
For the avoidance of doubt, the forgiveness of antecedent debt (whether Indebtedness, trade payables, or otherwise) shall not constitute
Curative Equity.
"Default"
means an event, condition, or default that, with the giving of notice, the passage of time, or both, would be an Event of Default.
"Deposit Account"
means any deposit account (as that term is defined in the Code), or any account maintained for the deposit of funds with a Canadian bank,
trust company or other financial institution accepting funds for deposit in Canada.
"Designated Account"
means the Deposit Account of Borrower identified on Schedule D-1 to this Agreement (or such other Deposit Account of Borrower
located at Designated Account Bank that has been designated as such, in writing, by Borrower to Agent).
"Designated Account
Bank" has the meaning specified therefor in Schedule D-1 to this Agreement (or such other bank that is located within
the United States that has been designated as such, in writing, by Borrower to Agent in the applicable Notice of Borrowing).
“Discharge of Senior
Credit Agreement Obligations” shall mean the payment in full in cash of all Senior Credit Agreement Obligations under the Senior
Credit Agreement, other than contingent obligations for which no claim has been made, and the termination of all commitments thereunder.
"Disqualified Equity
Interests" means any Equity Interests that, by their terms (or by the terms of any security or other Equity Interests into which
they are convertible or for which they are exchangeable), or upon the happening of any event or condition (a) matures or are mandatorily
redeemable (other than solely for Qualified Equity Interests), pursuant to a sinking fund obligation or otherwise (except as a result
of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset
sale event shall be subject to the prior repayment in full of the Loans and all other Obligations that are accrued and payable and the
termination of the Term Loan Commitments), (b) are redeemable at the option of the holder thereof (other than solely for Qualified
Equity Interests), in whole or in part, on or prior to the date that is 91 days after the Maturity Date, other than following the prior
payment in full of the Obligations, (c) requires scheduled payments of dividends in cash, or (d) are or become convertible
into or exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified Equity Interests, in each case,
prior to the date that is 91 days after the Maturity Date; provided that, the Specified Preferred Equity shall not constitute
Disqualified Equity Interests.
-8-
"Dollars"
or "$" means United States dollars.
"Earn-Outs"
means unsecured liabilities of a Loan Party arising under an agreement to make any deferred payment as a part of the Purchase Price for
a Permitted Acquisition, including performance bonuses or consulting payments in any related services, employment or similar agreement,
in an amount that is subject to or contingent upon the revenues, income, cash flow or profits (or the like) of the target of such Permitted
Acquisition.
"EBITDA" has
the meaning assigned to the term “EBITDA” in the Senior Credit Agreement, plus any proceeds of Curative Equity (as
defined in the Senior Credit Agreement).
"Eligible Transferee"
means (a) any Lender, any Affiliate of any Lender and any Related Fund of any Lender; (b) (i) a commercial bank organized
under the laws of the United States or any state thereof, and having total assets in excess of $5,000,000,000; (ii) a savings and
loan association or savings bank organized under the laws of the United States or any state thereof, and having total assets in excess
of $5,000,000,000; (iii) a commercial bank organized under the laws of any other country or a political subdivision thereof; provided,
that (A) (x) such bank is acting through a branch or agency located in the United States, or (y) such bank is organized
under the laws of a country that is a member of the Organization for Economic Cooperation and Development or a political subdivision
of such country, and (B) such bank has total assets in excess of $5,000,000,000; (c) any other entity (other than a natural
person) that is an "accredited investor" (as defined in Regulation D under the Securities Act) that extends credit or buys
loans as one of its businesses including insurance companies, investment or mutual funds and lease financing companies; and (d) during
the continuation of an Event of Default, any other Person approved by Agent.
"Employee Benefit Plan"
means any employee benefit plan within the meaning of Section 3(3) of ERISA, whether or not subject to ERISA, (a) that
is or within the preceding six (6) years has been sponsored, maintained or contributed to by any Loan Party or ERISA Affiliate or
(b) to which any Loan Party or ERISA Affiliate has, or has had at any time within the preceding six (6) years, any liability,
contingent or otherwise.
"Environmental Action"
means any written complaint, summons, citation, notice, directive, order, claim, litigation, investigation, judicial or administrative
proceeding, judgment, letter, or other written communication from any Governmental Authority, or any third party involving violations
of Environmental Laws or releases of Hazardous Materials (a) from or impacting any assets, properties, or businesses of any Loan
Party, any Subsidiary of any Loan Party, or any of their predecessors in interest, or (b) from or onto any facilities which received
Hazardous Materials generated by any Loan Party, any Subsidiary of any Loan Party, or any of their predecessors in interest.
"Environmental Law"
means any applicable federal, state, provincial, territorial, foreign or local statute, law, rule, regulation, ordinance, code, binding
and enforceable guideline, binding and enforceable written policy, or rule of common law now or hereafter in effect and in each
case as amended, or any judicial or administrative interpretation thereof, including any judicial or administrative order, consent decree
or judgment, in each case, to the extent binding on any Loan Party or its Subsidiaries, relating to the environment, the effect of the
environment on employee health, or Hazardous Materials, in each case as amended from time to time.
-9-
"Environmental Liabilities"
means all liabilities, monetary obligations, losses, damages, costs and expenses (including all reasonable fees, disbursements and expenses
of counsel, experts, or consultants, and costs of investigation and feasibility studies), fines, penalties, sanctions, and interest incurred
as a result of any claim or demand, or Remedial Action required, by any Governmental Authority or any third party, and which relate to
any Environmental Action.
"Environmental Lien"
means any Lien in favor of any Governmental Authority for Environmental Liabilities.
"Equipment"
means equipment (as that term is defined in the Code or the PPSA, as applicable).
"Equity Interests"
means, with respect to a Person, all of the shares, options, warrants, interests, participations, or other equivalents (regardless of
how designated) of or in such Person, whether voting or nonvoting, including capital stock (or other ownership or profit interests or
units), preferred stock, or any other "equity security" (as such term is defined in Rule 3a11-1 of the General Rules and
Regulations promulgated by the SEC under the Exchange Act).
"ERISA" means
the Employee Retirement Income Security Act of 1974, as amended, and any successor statute thereto.
"ERISA Affiliate"
means (a) any Person subject to ERISA whose employees are treated as employed by the same employer as the employees of any Loan
Party or its Subsidiaries under IRC Section 414(b), (b) any trade or business subject to ERISA whose employees are treated
as employed by the same employer as the employees of any Loan Party or its Subsidiaries under IRC Section 414(c), (c) solely
for purposes of Section 302 of ERISA and Section 412 of the IRC, any organization subject to ERISA that is a member of an affiliated
service group of which any Loan Party or any of its Subsidiaries is a member under IRC Section 414(m), or (d) solely for purposes
of Section 302 of ERISA and Section 412 of the IRC, any Person subject to ERISA that is a party to an arrangement with any
Loan Party or any of its Subsidiaries and whose employees are aggregated with the employees of such Loan Party or its Subsidiaries under
IRC Section 414(o).
"Erroneous Payment"
has the meaning specified therefor in Section 15.14(a) of this Agreement.
"Erroneous Payment
Demand" has the meaning specified therefor in Section 15.14(a) of this Agreement.
"Erroneous Payment
Subrogation Rights" has the meaning specified therefor in Section 15.14(d) of this Agreement.
-10-
"Event of Default"
has the meaning specified therefor in Section 8 of this Agreement.
"Exchange Act"
means the Securities Exchange Act of 1934, as in effect from time to time.
"Exchange
Agreement" has the meaning set forth in Amendment No. 3.
"Excluded
Taxes" means (i) any Tax imposed on the net income or net profits of any Recipient (including any branch profits
taxes), in each case (a) imposed by the jurisdiction (or by any political subdivision or taxing authority thereof) in which such
Recipient is organized or the jurisdiction (or by any political subdivision or taxing authority thereof) in which such Recipient's principal
office is located in or (b) that is an Other Connection Tax, (ii) Taxes that would not have been imposed but for a Recipient's
failure to comply with the requirements of Section 16.2 or 16.5 of this Agreement, (iii) in the case of a Lender,
U.S. federal withholding taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest
in a Loan or Term Loan Commitment pursuant to applicable law in effect on the date on which (a) such Lender or Agent acquires such
interest in the Loan or Term Loan Commitment (other than pursuant to an assignment request by a Borrower under Section 14.2)
or (b) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 16, amounts
with respect to such Taxes were payable either to such Lender's assignor immediately before such Lender acquired the applicable interest
in the Loan or Term Loan Commitment or to such Lender immediately before it changed its lending office, (iv) any U.S. federal withholding
taxes imposed under FATCA; and (v) any Canadian federal withholding Taxes imposed as a result of any Lender (a) not dealing
at “arm’s length” (within the meaning of the Tax Act) with a Loan Party, (b) being a “specified non-resident
shareholder” (as defined in subsection 18(5) of the Tax Act) of a Loan Party or not dealing at “arm’s length”
with a “specified shareholder” of a Loan Party (in each case within the meaning of the Tax Act) or (c) such Recipient
being a “specified entity” as defined in the proposals to amend the Tax Act released on November 28, 2023 (Bill C-59)
with respect to “hybrid mismatch arrangements” (or as defined in any substantially similar successor proposals thereto),
in respect of a Loan Party, except in the case of clauses (v)(a), (b) and (c) above where any such non-arm’s length,
specified non-resident shareholder, specified shareholder or specified entity relationship arises as a result of such Recipient having
executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest
under, engaged in any other transaction pursuant to or enforced any Loan Document.
"FATCA" means
Sections 1471 through 1474 of the IRC, as of the date of this Agreement (or any amended or successor version that is substantively comparable
and not materially more onerous to comply with), and (a) any current or future regulations or official interpretations thereof,
(b) any agreements entered into pursuant to Section 1471(b)(1) of the IRC, and (c) any intergovernmental agreement
entered into by the United States (or any fiscal or regulatory legislation, rules, or practices adopted pursuant to any such intergovernmental
agreement entered into in connection therewith).
"FCPA" means
the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder.
-11-
"Fee Letter"
means that certain Fee Letter, dated as of October 14, 2024, among the Borrower and Agent, in form and substance reasonably satisfactory
to Agent.
"Fixed Charge Coverage
Ratio" means, with respect to any fiscal period and with respect to Comtech determined on a consolidated basis in accordance
with GAAP, the ratio of (a) EBITDA for such period minus Unfinanced Capital Expenditures made (to the extent not already incurred
in a prior period) or incurred during such period, to (b) Fixed Charges for such period.
"Fixed Charges"
means, with respect to any fiscal period and with respect to Comtech determined on a consolidated basis in accordance with GAAP, the
sum, without duplication, of (a) Interest Expense required to be paid (other than interest paid-in-kind, amortization of financing
fees, and other non-cash Interest Expense) during such period, (b) scheduled principal payments in respect of Indebtedness that
are required to be paid during such period (excluding, for the avoidance of doubt, principal payments relating to the Revolving Loans),
(c) all federal, state, provincial, territorial and local income taxes required to be paid during such period (net of tax refunds
received in cash to the extent such tax refunds are received in the period in which the applicable cash outlay for such taxes was made),
(d) all management, consulting, monitoring, and advisory fees paid to any Permitted Holder or its Affiliates during such period,
(e) all Restricted Payments paid during such period in cash, and (f) to the extent not otherwise deducted from EBITDA for such
period, all payments required to be made during such period in respect of any funding deficiency or funding shortfall with respect to
any Pension Plan or for any Withdrawal Liability.
For the purposes of calculating
Fixed Charge Coverage Ratio for any Reference Period, if at any time during such Reference Period (and after the Closing Date), any Loan
Party or any of its Subsidiaries shall have made a Permitted Acquisition, Fixed Charges and Unfinanced Capital Expenditures for such
Reference Period shall be calculated after giving pro forma effect thereto or in such other manner acceptable to Agent (at the direction
of the Required Lenders) as if any such Permitted Acquisition occurred on the first day of such Reference Period.
"Foreign Lender"
means any Lender that is not a U.S. Person.
"Foreign Subsidiary"
means any direct or indirect subsidiary of any Loan Party that is organized under the laws of any jurisdiction other than the United
States, any state thereof or the District of Columbia.
"Funded Indebtedness"
means, as of any date of determination, with respect to Comtech, determined on a consolidated basis in accordance with GAAP, all Indebtedness
for borrowed money or letters of credit, Indebtedness consisting of obligations to pay the deferred purchase price of assets and
any earn-out or similar obligations, and Indebtedness consisting of contingent obligations classified as Indebtedness on a balance sheet
prepared in accordance with GAAP, including, in any event, but without duplication, with respect to the Loan Parties and their Subsidiaries,
the Loans and the amount of their Capitalized Lease Obligations and, unless contested by Comtech or any of its Subsidiaries diligently
and in good faith, trade payables outstanding for more than 60 days after the date such payable was due (or, solely for purposes of calculating
the Net Leverage Ratio on the Closing Date, more than 90 days after the date such payable was due).
-12-
"Funding Date"
means the date on which a borrowing occurs.
"GAAP" means
generally accepted accounting principles as in effect from time to time in the United States, consistently applied.
"Governing Documents"
means, with respect to any Person, the certificate or articles of incorporation, by-laws, or other organizational documents of such Person,
or any other agreement relating to the voting rights or corporate governance of such Person.
"Governmental
Authority" means the government of any nation or any political subdivision thereof, whether at the national, state, territorial,
provincial, county, municipal or any other level, and any agency, authority, instrumentality, regulatory body, court, tribunal,
central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of,
or pertaining to, government (including any supra-national bodies such as the European Union or the European Central Bank).
"Guarantied Obligations"
means all of the Obligations now or hereafter existing. Without limiting the generality of the foregoing, Guarantied Obligations shall
include all amounts that constitute part of the Guarantied Obligations and would be owed by the Borrower to Agent or any other member
of the Lender Group but for the fact that they are unenforceable or not allowable, including due to the existence of a bankruptcy, reorganization,
other Insolvency Proceeding or similar proceeding involving the Borrower or any Guarantor.
"Guarantor"
means (a) each Person that guaranties all or a portion of the Obligations, including any Person that is a signatory to this Agreement
as a "Guarantor, and (b) each other Person that becomes a guarantor of the obligations under the Senior Credit Agreement after
the Closing Date pursuant to 5.11 of this Agreement.
"Guaranty"
means the guaranty set forth in Article 18 hereof.
"Hazardous Materials"
means (a) substances that are defined or listed in, or otherwise classified pursuant to, any applicable laws or regulations as "hazardous
substances," "hazardous materials," "hazardous wastes," "toxic substances," or any other formulation
intended to define, list, or classify substances by reason of deleterious properties such as ignitability, corrosivity, reactivity, carcinogenicity,
reproductive toxicity, or "EP toxicity", (b) oil, petroleum, or petroleum derived substances, natural gas, natural gas
liquids, synthetic gas, drilling fluids, produced waters, and other wastes associated with the exploration, development, or production
of crude oil, natural gas, or geothermal resources, (c) any flammable substances or explosives or any radioactive materials, and
(d) asbestos in any form or electrical equipment that contains any oil or dielectric fluid containing levels of polychlorinated
biphenyls in excess of 50 parts per million.
"Hedge Agreement"
means a "swap agreement" as that term is defined in Section 101(53B)(A) of the Bankruptcy Code.
“Highest Lawful Rate”
means the maximum lawful interest rate, if any, that at any time or from time to time may be contracted for, charged, or received under
the laws applicable to any Lender or any Loan Party which are presently in effect or, to the extent allowed by law, under such applicable
laws which may hereafter be in effect and which allow a higher maximum non-usurious interest rate than applicable laws now allow.
-13-
"Indebtedness"
as to any Person means (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced
by bonds, debentures, notes, or other similar instruments and all reimbursement or other obligations in respect of letters of credit,
bankers acceptances, or other financial products, (c) all obligations of such Person as a lessee under Capital Leases, (d) all
obligations or liabilities of others secured by a Lien on any asset of such Person, irrespective of whether such obligation or liability
is assumed, (e) all obligations of such Person to pay the deferred purchase price of assets (other than trade payables incurred
in the ordinary course of business and, for the avoidance of doubt, other than royalty payments payable in the ordinary course of business
in respect of non-exclusive licenses) and any earn-out or similar obligations, (f) all monetary obligations of such Person owing
under Hedge Agreements (which amount shall be calculated based on the amount that would be payable by such Person if the Hedge Agreement
were terminated on the date of determination), (g) any Disqualified Equity Interests of such Person, and (h) any obligation
of such Person guaranteeing or intended to guarantee (whether directly or indirectly guaranteed, endorsed, co-made, discounted, or sold
with recourse) any obligation of any other Person that constitutes Indebtedness under any of clauses (a) through (g) above.
For purposes of this definition, (i) the amount of any Indebtedness represented by a guaranty or other similar instrument shall
be the lesser of the principal amount of the obligations guaranteed and still outstanding and the maximum amount for which the guaranteeing
Person may be liable pursuant to the terms of the instrument embodying such Indebtedness, and (ii) the amount of any Indebtedness
which is limited or is non-recourse to a Person or for which recourse is limited to an identified asset shall be valued at the lesser
of (A) if applicable, the limited amount of such obligations, and (B) if applicable, the fair market value of such assets securing
such obligation.
"Indemnified Liabilities"
has the meaning specified therefor in Section 10.3 of this Agreement.
"Indemnified Person"
has the meaning specified therefor in Section 10.3 of this Agreement.
"Indemnified Taxes"
means, (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by, or on account of any obligation
of, any Loan Party under any Loan Document, and (b) to the extent not otherwise described in the foregoing clause (a), Other Taxes.
"Insolvency Proceeding"
means any proceeding commenced by or against any Person under any provision of the Bankruptcy Code, the Bankruptcy and Insolvency
Act (Canada), the Winding-Up and Restructuring Act (Canada), the Companies’ Creditor Arrangement Act (Canada)
or under any other state, provincial, territorial or federal or foreign bankruptcy or insolvency law, assignments for the benefit of
creditors, formal or informal moratoria, compositions, extensions generally with creditors, or proceedings seeking reorganization, arrangement,
or other similar relief.
"Interest Expense"
means, for any period, the aggregate of the interest expense of Comtech for such period, determined on a consolidated basis in accordance
with GAAP.
-14-
“Interest Rate”
means, as of any date of determination, the greater of:
(a) the
highest per annum rate at which interest accrues on the Term Loans (as defined in the Senior Credit Agreement as in effect on the Amendment
No. 23 Effective
Date) (including, without limitation, any default interest thereon) to be determined in accordance with the terms of the Senior Credit
Agreement as in effect on the Amendment No. 23
Effective Date, and
(b) Term
SOFR (as defined in, and determined in accordance with, the Senior Credit Agreement as in effect on the Amendment No. 23
Effective Date) plus 10.5%.
Notwithstanding any other provision
herein, the aggregate interest rate charged with respect to any of the Obligations, including all charges or fees in connection therewith
deemed in the nature of interest under applicable law will not exceed the Highest Lawful Rate. Notwithstanding the foregoing, it is the
intention of the Lenders and the Borrower to conform strictly to any applicable usury laws. Accordingly, if any Lender contracts for,
charges, or receives any consideration which constitutes interest in excess of the Highest Lawful Rate, then any such excess will be
cancelled automatically and, if previously paid, will at such Lender’s option be applied to the outstanding amount of the Loans
made hereunder or be refunded to the Borrower.
“Interest Rate Certificate”
has the meaning specified therefor in Section 5.2 of this Agreement.
"Inventory"
means inventory (as that term is defined in the Code or the PPSA, as applicable).
"Investment"
means, with respect to any Person, any investment by such Person in any other Person (including Affiliates) in the form of loans, guarantees,
advances, capital contributions (excluding (a) commission, travel, and similar advances to officers and employees of such Person
made in the ordinary course of business, and (b) bona fide accounts receivable arising in the ordinary course of business), or acquisitions
of Indebtedness, Equity Interests, or all or substantially all of the assets of such other Person (or of any division or business line
of such other Person), and any other items that are or would be classified as investments on a balance sheet prepared in accordance with
GAAP. The amount of any Investment shall be the original cost of such Investment plus the cost of all additions thereto, without any
adjustment for increases or decreases in value, or write-ups, write-downs, or write-offs with respect to such Investment.
"IRC" means
the Internal Revenue Code of 1986, as in effect from time to time.
"Legal Reservations"
means (a) the principle that equitable remedies are remedies which may be granted or refused at the discretion of the court and
principles of good faith and fair dealing, (b) the limitation of enforcement by laws relating to insolvency, reorganisation and
other laws generally affecting the rights of creditors, (c) the existence of timing limitations with respect to the bringing of
claims under applicable limitation laws and the defenses of acquiescence, set-off or counterclaim and the possibility that an undertaking
to assume liability for, or to indemnify a Person against, non-payment of stamp duty may be void, (d) the principle that in certain
jurisdictions and under certain circumstances a Lien granted by way of fixed charge may be re-characterized as a floating charge or that
security purported to be constituted as an assignment may be re-characterized as a charge, (e) the principle that additional interest
imposed pursuant to any relevant agreement may be held to be unenforceable on the grounds that it is a penalty and thus void, (f) the
principle that a court may not give effect to an indemnity for legal costs incurred by an unsuccessful litigant, (g) the principle
that the creation or purported creation of collateral over any claim, other right, contract or agreement which is subject to a prohibition
on transfer, assignment or charging may be void, ineffective or invalid and may give rise to a breach of the contract or agreement (or
contract or agreement relating to or governing the claim or other right) over which security has purportedly been created, (h) the
principle that a court may not give effect to any parallel debt provisions, covenants to pay or other similar provisions, (i) the
principle that certain remedies in relation to regulated entities may require further approval from government or regulatory bodies or
pursuant to agreements with such bodies, (j) the principles of private and procedural laws which affect the enforcement of a foreign
court judgment, (k) similar principles, rights and defenses under the laws of any relevant jurisdiction, (l) the UK Guarantee
Limitations and (m) any other matters which are set out as qualifications or reservations (however described) in any legal opinion
delivered pursuant to the Loan Documents.
-15-
"Lender" has
the meaning set forth in the preamble to this Agreement (including, for the avoidance of doubt, the Amendment No. 1 Term Loan Lenders
and the Amendment No. 2 Priority Term Loan Lenders), and shall also include any other Person made a party to this Agreement pursuant
to the provisions of Section 13.1 of this Agreement and "Lenders" means each of the Lenders or any one or more
of them.
"Lender Group"
means each of the Lenders and Agent, or any one or more of them.
"Lender Group Representatives"
has the meaning specified therefor in Section 17.9 of this Agreement.
"Lender-Related Person"
means, with respect to any Lender, such Lender, together with such Lender's Affiliates, officers, directors, employees, attorneys, and
agents.
"Lien" means
any mortgage, deed of trust, pledge, hypothecation, assignment, charge, deposit arrangement, encumbrance, easement, lien (statutory or
other), security interest, or other security arrangement and any other preference, priority, or preferential arrangement of any kind
or nature whatsoever, including any conditional sale contract or other title retention agreement, the interest of a lessor under a Capital
Lease and any synthetic or other financing lease having substantially the same economic effect as any of the foregoing.
"Liquidity"
means, as of any date of determination, the sum of Availability (as defined under the Senior Credit Agreement) and Qualified Cash as
of such date.
"Loan Documents"
means this Agreement, Amendment No. 1, Amendment No. 2, the Subordination Agreement, any Notice of Borrowing, any note or notes
executed by Borrower in connection with this Agreement and payable to any member of the Lender Group, the Fee Letter, each Interest Rate
Certificate and any other instrument or agreement entered into, now or in the future, by any Loan Party or any of its Subsidiaries and
any member of the Lender Group in connection with this Agreement.
"Loan Party"
means the Borrower or any Guarantor.
-16-
"Loans" means
the Term Loan.
“Magnetar
Entities” means, Magnetar Financial LLC, any of its Affiliates.
and shall include, without limitation, any funds and accounts that are managed, advised, sub-advised or administered by Magnetar Financial
LLC or any of its Affiliates.
"“Make-Whole
Amount"”
means (x) with respect to the Closing Date Term Loans (i) from the Closing Date through (but not including) the date that is
nine months thereafter, the amount set forth in the row styled “Level I” in the following table, (ii) from the date
that is nine months after the Closing Date through (but not including) the date that
is the second anniversary of the Closing DateApril 1,
2027, the amount set forth in the row styled “Level II” in the following table,
and (iii) from the second anniversary of the
Closing DateApril 1,
2027 and thereafter, the amount set forth in the row styled “Level III” in the following table and (y) with respect
to the Amendment No. 1 Term Loans (i) from the Amendment No. 1 Effective Date through (but not including) the date that
is nine months thereafter, the amount set forth in the row styled “Level I” in the following table, (ii) from the date
that is nine months after the Amendment No. 1 Effective Date through (but not including) the
date that is the second anniversary of the Amendment
No.April 1 Effective
Date, 2027, the amount set forth in the row styled
“Level II” in the following table and (iii) from the second anniversary of the
Amendment No.April 1 Effective
Date, 2027 and thereafter, the amount set forth in
the row styled “Level III” in the following table.
Level
Applicable
Make-Whole Amount for
the Closing Date Term Loans and the Amendment No. 1 Term Loans
(the "“MOIC
Level"”)
I
tThe
applicable Make-Whole Principal multiplied by 33%
II
tThe
applicable Make-Whole Principal multiplied by 50%
plus,
starting on March 3,
2027, interest accrued on the applicable Make-Whole Principal at the Make-Whole Interest Rate and calculated as of any such date
of determination
III
tThe
applicable Make-Whole Principal multiplied by 75%
plus,
starting on April 1, 2027, interest accrued on the applicable
Make-Whole Principal at the Make-Whole Interest Rate starting on the
second anniversary of the Closing Date and calculated as of any such date of determination
"Make-Whole Interest
Rate" means a rate of 16.00% per annum, which shall be increased by 2.00% per annum upon the occurrence and during the continuation
of an Event of Default.
"Make-Whole Principal"
means (x) with respect to the Closing Date Term Loans, the original principal amount (excluding capitalized interest paid-in-kind
thereon) of the Closing Date Term Loans to be repaid or accelerated on such date (not taking into account any purchase discount, original
issue discount or upfront fees paid or credited with respect to the Closing Date Term Loans, expense reimbursements and other fees and
expenses, or other amounts customarily excluded therefrom) and (y) with respect to the Amendment No. 1 Term Loans, the original
principal amount (excluding capitalized interest paid-in-kind thereon) of the Amendment No. 1 Term Loans to be repaid or accelerated
on such date (not taking into account any purchase discount, original issue discount or upfront fees paid or credited with respect to
the Amendment No. 1 Term Loans, expense reimbursements and other fees and expenses, or other amounts customarily excluded therefrom).
-17-
"Margin Stock"
as defined in Regulation U of the Board of Governors as in effect from time to time.
"Material Adverse Effect"
means (a) a material adverse effect in the business, operations, results of operations, assets, liabilities or financial condition
of the Loan Parties and their Subsidiaries, taken as a whole or (b) a material impairment of the Loan Parties' and their Subsidiaries'
ability to perform their obligations under the Loan Documents to which they are parties or of the Lender Group's ability to enforce the
Obligations (other than as a result of as a result of an action taken or not taken that is solely in the control of Agent).
"Material Contract"
means, with respect to any Person, each contract or agreement to which such Person or any of its Subsidiaries is a party involving aggregate
consideration payable to or by such Person or such Subsidiary of $50,000,000 or more in any fiscal year, which shall exclude the Senior
Credit Agreement and the other “Loan Documents” (as defined in the Senior Credit Agreement).
"Maturity Date"
means the date that is 90 days after the Senior Credit Agreement Maturity Date (provided that, if such day is not a Business Day,
then on the immediately succeeding Business Day).
"Moody's"
has the meaning specified therefor in the definition of Cash Equivalents.
"Multiemployer Plan"
means any multiemployer plan within the meaning of Section 3(37) or 4001(a)(3) of ERISA with respect to which any Loan Party
or ERISA Affiliate has an obligation to contribute or has any liability, contingent or otherwise or could be assessed withdrawal liability
assuming a complete withdrawal from any such multiemployer plan.
"Net Cash Proceeds"
means:
(a) with
respect to any sale or disposition by any Loan Party or any of its Subsidiaries of assets, the amount of cash proceeds received (directly
or indirectly) from time to time (whether as initial consideration (including,
for the avoidance of doubt, the “Advance Payment” (as defined in the Purchase Agreement)) or through the payment of
deferred consideration) by or on behalf of such Loan Party or such Subsidiary, in connection therewith after deducting therefrom only
(i) the amount of any Indebtedness secured by any Permitted Lien on any asset (other than (A) Indebtedness owing to Agent or
any Lender under this Agreement or the other Loan Documents and (B) Indebtedness assumed by the purchaser of such asset) which is
required to be, and is, repaid in connection with such sale or disposition, (ii) reasonable fees, commissions, and expenses related
thereto and required to be paid by such Loan Party or such Subsidiary in connection with such sale or disposition, (iii) taxes paid
or payable to any taxing authorities by such Loan Party or such Subsidiary in connection with such sale or disposition, in each case
to the extent, but only to the extent, that the amounts so deducted are, at the time of receipt of such cash, actually paid or payable
to a Person that is not an Affiliate of any Loan Party or any of its Subsidiaries, and are properly attributable to such transaction,
(iv) all amounts that are set aside as a reserve (A) for adjustments in respect of the purchase price of such assets, (B) for
any liabilities associated with such sale or casualty, to the extent such reserve is required by GAAP, and (C) for the payment of
unassumed liabilities relating to the assets sold or otherwise disposed of at the time of, or within 30 days after, the date of such
sale or other disposition, to the extent that in each case the funds described above in this clause (iv) are (x) deposited
into escrow with a third party escrow agent or set aside in a separate Deposit Account, and (y) paid to Agent as a prepayment of
the applicable Obligations in accordance with Section 2.4(e) of this Agreement (or as otherwise set forth herein with respect
to the Specified Permitted Individual Disposition) at such time when such amounts are no longer required to be set aside as such a reserve
and (v) any required prepayment of Senior Credit Agreement Obligations; andprovided
that solely for purposes of Section 2.4(e)(i) of this Agreement, (1) the Net Cash Proceeds of the Specified Permitted
Individual Disposition attributable to the "Advance Payment" (as defined in the Purchase Agreement) shall be deemed to be zero
Dollars ($0) until the earliest of (x) the consummation of the Specified Permitted Individual Disposition, (y) the receipt
by Agent of written notice from the Borrower of its election to apply the Net Cash Proceeds of the Specified Permitted Individual Disposition
attributable to the "Advance Payment" (as defined in the Purchase Agreement) to a prepayment of the outstanding principal amount
of the Obligations in accordance with Section 2.4(f)(ii) of this Agreement (the "Specified Permitted Individual Disposition
Prepayment Election"), and (z) the termination of the Purchase Agreement in accordance with the terms thereof (the "Specified
Permitted Individual Disposition Termination"); provided further that, in the event of a Specified Permitted Individual Disposition
Termination, the Net Cash Proceeds of the Specified Permitted Individual Disposition attributable to the "Advance Payment"
(as defined in the Purchase Agreement) shall not exceed the amount of the "Advance Payment" (as defined in the Purchase Agreement)
retained by the Loan Parties pursuant to the terms of the Purchase Agreement, and (2) any optional prepayment of the Obligations
made by the Borrower during the period commencing on the Amendment No. 3 Effective
Date and ending on the date of consummation the Specified Permitted
Individual Disposition (including, for the avoidance of doubt, a prepayment made during such period by way of a Specified Permitted Individual
Disposition Prepayment Election) shall be deducted from (or, in the case of a Specified Permitted Individual Disposition Prepayment Election,
not included in) the amount of Net Cash Proceeds of the Specified Permitted Individual Disposition calculated upon the consummation of
the Specified Permitted Individual Disposition; and
-18-
(b) with
respect to the issuance or incurrence of any Indebtedness by any Loan Party or any of its Subsidiaries, or the issuance by any Loan Party
or any of its Subsidiaries of any Equity Interests, the aggregate amount of cash received (directly or indirectly) from time to time
(whether as initial consideration or through the payment or disposition of deferred consideration) by or on behalf of such Loan Party
or such Subsidiary in connection with such issuance or incurrence, after deducting therefrom only (i) reasonable fees, commissions,
and expenses related thereto and required to be paid by such Loan Party or such Subsidiary in connection with such issuance or incurrence,
(ii) taxes paid or payable to any taxing authorities by such Loan Party or such Subsidiary in connection with such issuance or incurrence,
in each case to the extent, but only to the extent, that the amounts so deducted are, at the time of receipt of such cash, actually paid
or payable to a Person that is not an Affiliate of any Loan Party or any of its Subsidiaries, and are properly attributable to such transaction,
and (iii) any required prepayment of Senior Credit Agreement Obligations.
"Net Leverage Ratio"
has the meaning assigned to the term “Net Leverage Ratio” in the Senior Credit Agreement.
"Non-Consenting Lender"
has the meaning specified therefor in Section 14.2(a) of this Agreement.
"Notice of Borrowing"
means a certificate substantially in the form of Exhibit D-1 to this Agreement delivered by an Authorized Person of Comtech
to Agent.
"Notification Event"
means (a) the occurrence of a "reportable event" described in Section 4043 of ERISA for which the 30-day notice requirement
has not been waived by applicable regulations issued by the PBGC, (b) the withdrawal of any Loan Party or ERISA Affiliate from a
Pension Plan during a plan year in which it was a "substantial employer" as defined in Section 4001(a)(2) of ERISA,
(c) the termination of a Pension Plan, the filing of a notice of intent to terminate a Pension Plan or the treatment of a Pension
Plan amendment as a termination, under Section 4041 of ERISA, if the plan assets are not sufficient to pay all plan liabilities,
(d) the institution of proceedings to terminate, or the appointment of a trustee with respect to, any Pension Plan by the PBGC or
any Pension Plan or Multiemployer Plan administrator, (e) any other event or condition that would constitute grounds under Section 4042(a) of
ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan, (f) the imposition of a Lien pursuant
to the IRC or ERISA in connection with any Employee Benefit Plan or the existence of any facts or circumstances that could reasonably
be expected to result in the imposition of a Lien, (g) the partial or complete withdrawal of any Loan Party or ERISA Affiliate from
a Multiemployer Plan (other than any withdrawal that would not constitute an Event of Default under Section 8.12), (h) any
event or condition that results in the insolvency of a Multiemployer Plan within the meaning of Title IV of ERISA, (i) [reserved],
(j) any Pension Plan being in "at risk status" within the meaning of IRC Section 430(i), (k) any Multiemployer
Plan being in "endangered status" or "critical status" within the meaning of IRC Section 432(b) or the
determination that any Multiemployer Plan is or is expected to be insolvent within the meaning of Title IV of ERISA, (l) with respect
to any Pension Plan, any Loan Party or ERISA Affiliate incurring a substantial cessation of operations within the meaning of ERISA Section 4062(e),
(m) an "accumulated funding deficiency" within the meaning of the IRC or ERISA (including Section 412 of the IRC
or Section 302 of ERISA) or the failure of any Pension Plan to meet the minimum funding standards within the meaning of the IRC
or ERISA (including Section 412 of the IRC or Section 302 of ERISA), in each case, whether or not waived, (n) the filing
of an application for a waiver of the minimum funding standards within the meaning of the IRC or ERISA (including Section 412 of
the IRC or Section 302 of ERISA) with respect to any Pension Plan or Multiemployer Plan, (o) the failure to make by its due
date a required payment or contribution with respect to any Pension Plan, or (p) any event that results in or could reasonably be
expected to result in a liability by a Loan Party pursuant to Title I of ERISA or the excise tax provisions of the IRC relating to Employee
Benefit Plans or any event that results in or could reasonably be expected to result in a liability to any Loan Party or ERISA Affiliate
pursuant to Title IV of ERISA or Section 401(a)(29) of the IRC.
-19-
"Obligations"
means all loans (including the Loans), debts, principal (including PIK Interest), interest (including any interest that accrues after
the commencement of an Insolvency Proceeding, regardless of whether allowed or allowable in whole or in part as a claim in any such Insolvency
Proceeding), premiums, liabilities, obligations (including indemnification obligations), fees and expenses (including the fees and expenses
to be reimbursed pursuant to Section 15.7 and the Fee Letter and any fees or expenses that accrue after the commencement
of an Insolvency Proceeding, regardless of whether allowed or allowable in whole or in part as a claim in any such Insolvency Proceeding),
guaranties, and all covenants and duties of any other kind and description owing by any Loan Party arising out of, under, pursuant to,
in connection with, or evidenced by this Agreement or any of the other Loan Documents and irrespective of whether for the payment of
money, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, and including all
interest not paid when due and all other expenses or other amounts that any Loan Party is required to pay or reimburse by the Loan Documents
or by law or otherwise in connection with the Loan Documents. Without limiting the generality of the foregoing, the Obligations of Borrower
under the Loan Documents include the obligation to pay (i) the principal of the Loans (including PIK Interest), (ii) the Make-Whole
Amount, (iii) applicable interest on the Loans, (iv) fees and expenses payable under this Agreement or any of the other Loan
Documents, and (v) indemnities and other amounts payable by any Loan Party under any Loan Document. Any reference in this Agreement
or in the Loan Documents to the Obligations shall include all or any portion thereof and any extensions, modifications, renewals, or
alterations thereof, both prior and subsequent to any Insolvency Proceeding.
"OFAC" means
The Office of Foreign Assets Control of the U.S. Department of the Treasury.
"Other Connection Taxes"
means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction
imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations
under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced
any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
"Other Taxes"
means all present or future stamp, court, excise, value added, or documentary, intangible, recording, filing or similar Taxes that arise
from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection
of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes
imposed with respect to an assignment (other than an assignment made pursuant to Section 14.2).
"Patriot Act"
has the meaning specified therefor in Section 4.13 of this Agreement.
"Payment Recipient"
has the meaning specified therefor in Section 15.14(a) of this Agreement.
-20-
"PBGC" means
the Pension Benefit Guaranty Corporation or any successor agency.
"Pension Plan"
means any Employee Benefit Plan, other than a Multiemployer Plan, which is subject to the provisions of Title IV or Section 302
of ERISA or Sections 412 or 430 of the IRC sponsored, maintained, or contributed to by any Loan Party or ERISA Affiliate or to which
any Loan Party or ERISA Affiliate has any liability, contingent or otherwise.
"Permitted Dispositions"
means:
(a) sales,
abandonment, or other dispositions of Equipment that is substantially worn, damaged, or obsolete or no longer used or useful in the ordinary
course of business and leases or subleases of Real Property not useful in the conduct of the business of the Loan Parties and their Subsidiaries,
(b) sales
of Inventory to buyers in the ordinary course of business,
(c) the
use or transfer of money or Cash Equivalents in a manner that is not prohibited by the terms of this Agreement or the other Loan Documents,
(d) the
licensing, on a non-exclusive basis, of Intellectual Property (i) in the ordinary course of business or (ii) consistent with
past practice,
(e) the
granting of Permitted Liens,
(f) the
sale or discount, in each case without recourse, of accounts receivable arising in the ordinary course of business, but only in connection
with the compromise or collection thereof,
(g) any
involuntary loss, damage or destruction of property,
(h) any
involuntary condemnation, seizure or taking, by exercise of the power of eminent domain or otherwise, or confiscation or requisition
of use of property,
(i) the
leasing or subleasing of assets of any Loan Party or its Subsidiaries in the ordinary course of business,
(j) the
sale or issuance of Equity Interests (other than Disqualified Equity Interests) of Comtech to the extent not resulting in a Change of
Control,
(k) (i) the
lapse of registered Intellectual Property of any Loan Party or any of its Subsidiaries to the extent not economically desirable in the
conduct of its business in the sole business judgement of the Loan Parties, or (ii) the abandonment of rights in Intellectual Property
(x) in the ordinary course of business, (y) consistent with past practice, or (z) as determined by any Loan Party in its
reasonable business judgment, so long as (in each case under clauses (i) and (ii)), such lapse is not materially adverse to the
interests of any Loan Party or the Lender Group,
(l) the
making of Restricted Payments that are expressly permitted to be made pursuant to this Agreement,
-21-
(m) the
making of Permitted Investments,
(n) so
long as no Event of Default has occurred and is continuing or would immediately result therefrom, transfers of assets (i) from any
Loan Party or any of its Subsidiaries to a Loan Party, and (ii) from any Subsidiary of any Loan Party that is not a Loan Party to
any other Subsidiary of any Loan Party,
(o) dispositions
of Equipment or Real Property to the extent that (i) such property is exchanged for credit against the purchase price of similar
replacement property, or (ii) the proceeds of such disposition are promptly applied to the purchase price of such replacement property;
provided, that to the extent the property being transferred constitutes Collateral (as defined in the Senior Credit Agreement),
such replacement property shall constitute Collateral (as defined in the Senior Credit Agreement),
(p) dispositions
of assets acquired by the Loan Parties and their Subsidiaries pursuant to a Permitted Acquisition consummated within 12 months of the
date of the proposed disposition so long as (i) the consideration received for the assets to be so disposed is at least equal to
the fair market value of such assets, (ii) the assets to be so disposed are not necessary or economically desirable in connection
with the business of the Loan Parties and their Subsidiaries, and (iii) the assets to be so disposed are readily identifiable as
assets acquired pursuant to the subject Permitted Acquisition,
(q) sale
and leaseback transactions permitted by Section 6.14,
(r) Specified
Permitted Dispositions (as defined under the Senior Credit Agreement, but which shall not include the Specified Permitted Individual
Disposition), so long as (A) such sale or other disposition is on terms, and subject to documentation, reasonably acceptable to
Senior Credit Agreement Agent, (B) the Net Cash Proceeds from each such sale or other disposition represent at least 80% of the
gross proceeds from each such sale or other disposition and (C) 100% of such Net Cash Proceeds are applied against the outstanding
principal amount of the Senior Credit Agreement Obligations in accordance with Section 2.4(f)(ii) of the Senior Credit Agreement,
(s) the
Specified Permitted Individual Disposition, so long as (A) the Specified Permitted Individual Disposition is on terms, and subject
to documentation, reasonably acceptable to Agent (acting on behalf of the Required Lenders), (B) an amount equal to 35% of the Net
Cash Proceeds from the Specified Permitted Individual Disposition is applied in accordance with Section 2.4(f)(ii) and
(C) an amount equal to 65% of such Net Cash Proceeds from the Specified Permitted Individual Disposition is applied against the
outstanding principal amount of the Senior Credit Agreement Obligations in accordance with Section 2.4(f)(ii) of the Senior
Credit Agreement, and
(t) sales
or dispositions of fixed assets (including intangible property related to such fixed assets) not otherwise permitted in clauses (a) through
(q) above so long as made at fair market value and the aggregate fair market value of all assets disposed of in any fiscal year
(including the proposed disposition) would not exceed $2,500,000.
-22-
"Permitted Holders"
means, collectively, (a) White Hat Capital Partners LP and its Affiliates and (b) the
Magnetar Capital LLC and its AffiliatesEntities.
"Permitted Indebtedness"
means:
(a) Indebtedness
in respect of the Obligations,
(b) Indebtedness
existing as of the Closing Date (including in respect of the Senior Credit Agreement) and any Refinancing Indebtedness in respect of
such Indebtedness,
(c) Permitted
Purchase Money Indebtedness and any Refinancing Indebtedness in respect of such Indebtedness,
(d) Indebtedness
arising in connection with the endorsement of instruments or other payment items for deposit,
(e) Indebtedness
consisting of (i) unsecured guarantees incurred in the ordinary course of business with respect to surety and appeal bonds, performance
bonds, bid bonds, appeal bonds, completion guarantee and similar obligations so long as the underlying Indebtedness that is being guaranteed
is permitted pursuant to the terms hereof; and (ii) unsecured guarantees arising with respect to customary indemnification obligations
to purchasers in connection with Permitted Dispositions,
(f) unsecured
Indebtedness of any Loan Party that is incurred on the date of the consummation of a Permitted Acquisition solely for the purpose of
consummating such Permitted Acquisition so long as (i) no Event of Default has occurred and is continuing or would result therefrom,
(ii) such unsecured Indebtedness is not incurred for working capital purposes, (iii) such unsecured Indebtedness does not mature
prior to the date that is 91 days after the Maturity Date, (iv) such unsecured Indebtedness does not amortize until 91 days after
the Maturity Date, (v) such unsecured Indebtedness does not provide for the payment of interest thereon in cash or Cash Equivalents
prior to the date that is 91 days after the Maturity Date, and (vi) such Indebtedness is subordinated in right of payment to the
Obligations on terms and conditions reasonably satisfactory to Agent (at the direction of the Required Lenders) and is otherwise on terms
and conditions (including economic terms and absence of covenants) reasonably satisfactory to Agent (at the direction of the Required
Lenders),
(g) Acquired
Indebtedness in an amount not to exceed $6,000,000 outstanding at any one time,
(h) Indebtedness
incurred in the ordinary course of business under performance, surety, statutory, or appeal bonds in an amount not to exceed $258,000,000
in the aggregate,
(i) Indebtedness
owed to any Person providing property, casualty, liability, or other insurance to any Loan Party or any of its Subsidiaries, so long
as the amount of such Indebtedness is not in excess of the amount of the unpaid cost of, and shall be incurred only to defer the cost
of, such insurance for the year in which such Indebtedness is incurred and such Indebtedness is outstanding only during such year,
-23-
(j) the
incurrence by any Loan Party or its Subsidiaries of Indebtedness under Hedge Agreements that is incurred for the bona fide purpose of
hedging the interest rate, commodity, or foreign currency risks associated with such Loan Party's or such Subsidiary's operations and
not for speculative purposes,
(k) Indebtedness
incurred in the ordinary course of business in respect of credit cards, credit card processing services, debit cards, stored value cards,
commercial cards (including so-called "purchase cards", "procurement cards" or "p-cards"), or Cash Management
Services,
(l) unsecured
Indebtedness of any Loan Party owing to employees, former employees, former officers, directors, or former directors (or any spouses,
ex-spouses, or estates of any of the foregoing) incurred in connection with the repurchase or redemption by such Loan Party of the Equity
Interests of Comtech that has been issued to such Persons, so long as (i) no Default or Event of Default has occurred and is continuing
or would result from the incurrence of such Indebtedness, (ii) the aggregate amount of all such Indebtedness outstanding at any
one time does not exceed $1,200,000, and (iii) such Indebtedness is subordinated in right of payment to the Obligations on terms
and conditions reasonably acceptable to Agent (at the direction of the Required Lenders),
(m) contingent
liabilities in respect of any indemnification obligation, adjustment of purchase price, non-compete, or similar obligation of any Loan
Party incurred in connection with the consummation of one or more Permitted Acquisitions,
(n) Indebtedness
comprising Permitted Investments,
(o) unsecured
Indebtedness incurred in respect of netting services, overdraft protection, and other like services, in each case, incurred in the ordinary
course of business,
(p) unsecured
Indebtedness of any Loan Party or its Subsidiaries in respect of Earn-Outs owing to sellers of assets or Equity Interests to such Loan
Party or its Subsidiaries that is incurred in connection with the consummation of one or more Permitted Acquisitions so long as such
unsecured Indebtedness is on terms and conditions reasonably acceptable to Agent (at the direction of the Required Lenders),
(q) accrual
of interest, accretion or amortization of original issue discount, or the payment of interest in kind, in each case, on Indebtedness
that otherwise constitutes Permitted Indebtedness,
(r) Indebtedness
in respect of letters of credit in an aggregate outstanding amount not to exceed $12,000,000 at any time,
(s) any
other Indebtedness incurred by any Loan Party or any of its Subsidiaries in an aggregate outstanding amount not to exceed $6,000,000
at any one time,
(t) Indebtedness
in respect of the Senior Credit Agreement Obligations.
-24-
"Permitted Intercompany
Advances" means loans made by (a) a Loan Party to another Loan Party (other than a Specified Loan Party), (b) a Specified
Loan Party to another Specified Loan Party, (c) a Loan Party (other than a Specified Loan Party) to a Specified Loan Party so long
as the aggregate amount of all such loans (by type, not by the borrower) does not exceed $18,000,000; provided that, for the avoidance
of doubt, any loans made by a Loan Party (other than a Specified Loan Party) to a Specified Loan Party prior to the Closing Date shall
not count towards such permitted amount, (d) a Subsidiary of a Loan Party that is not a Loan Party to another Subsidiary of a Loan
Party that is not a Loan Party, (e) a Subsidiary of a Loan Party that is not a Loan Party to a Loan Party, so long as the parties
thereto are party to the Intercompany Subordination Agreement, and (f) a Loan Party to a Subsidiary of a Loan Party that is not
a Loan Party so long as (i) the aggregate amount of all such loans (by type, not by the borrower) does not exceed $3,000,000 outstanding
at any one time; provided that, for the avoidance of doubt, any loans made by a Loan Party to a Subsidiary organized under the
laws of England and Wales prior to the Closing Date shall not count towards such permitted amount and (ii) at the time of the making
of such loan, no Event of Default has occurred and is continuing or would result therefrom.
"Permitted Investments"
means:
(a) Investments
in cash and Cash Equivalents,
(b) Investments
in negotiable instruments deposited or to be deposited for collection in the ordinary course of business,
(c) advances
made in connection with purchases of goods or services in the ordinary course of business,
(d) Investments
received in settlement of amounts due to any Loan Party or any of its Subsidiaries effected in the ordinary course of business or owing
to any Loan Party or any of its Subsidiaries as a result of Insolvency Proceedings involving an account debtor or upon the foreclosure
or enforcement of any Lien in favor of a Loan Party or its Subsidiaries,
(e) Investments
owned by any Loan Party or any of its Subsidiaries on the Closing Date,
(f) guarantees
permitted under the definition of Permitted Indebtedness,
(g) Permitted
Intercompany Advances,
(h) Equity
Interests or other securities acquired in connection with the satisfaction or enforcement of Indebtedness or claims due or owing to a
Loan Party or its Subsidiaries (in bankruptcy of customers or suppliers or otherwise outside the ordinary course of business) or as security
for any such Indebtedness or claims,
(i) deposits
of cash made in the ordinary course of business to secure performance of operating leases,
(j) (i) non-cash
loans and advances to employees, officers, and directors of a Loan Party or any of its Subsidiaries for the purpose of purchasing Equity
Interests in Comtech so long as the proceeds of such loans are used in their entirety to purchase such Equity Interests in Comtech, and
(ii) loans and advances to employees and officers of a Loan Party or any of its Subsidiaries in the ordinary course of business
for any other business purpose and in an aggregate amount not to exceed $1,200,000 at any one time,
-25-
(k) Permitted
Acquisitions,
(l) Investments
in the form of capital contributions and the acquisition of Equity Interests made by any Loan Party in any other Loan Party (other than
capital contributions to or the acquisition of Equity Interests of Comtech),
(m) Investments
resulting from entering into (i) Bank Product Agreements (as defined in the Senior Credit Agreement), or (ii) agreements relative
to obligations permitted under clause (j) of the definition of Permitted Indebtedness,
(n) equity
Investments by any Loan Party in any Subsidiary of such Loan Party which is required by law to maintain a minimum net capital requirement
or as may be otherwise required by applicable law,
(o) Investments
held by a Person acquired in a Permitted Acquisition to the extent that such Investments were not made in contemplation of or in connection
with such Permitted Acquisition and were in existence on the date of such Permitted Acquisition, and
(p) so
long as no Event of Default has occurred and is continuing or would result therefrom, any other Investments in an aggregate amount not
to exceed $1,200,000 during the term of this Agreement.
"Permitted Liens"
means:
(a) Liens
created under the Senior Credit Agreement and the Security Documents (as defined in the Senior Credit Agreement),
(b) Liens
for Taxes that are not yet due or are being contested pursuant to a Permitted Protest,
(c) judgment
Liens arising solely as a result of the existence of judgments, orders, or awards that do not constitute an Event of Default under Section 8.3
of this Agreement,
(d) Liens
set forth on Schedule P-3 to the Senior Credit Agreement; provided, that to qualify as a Permitted Lien, any such Lien
described on Schedule P-3 thereto shall only secure the Indebtedness that it secures on the Senior Credit Agreement Closing Date
and any Refinancing Indebtedness in respect thereof,
(e) the
interests of lessors under operating leases and non-exclusive licensors under license agreements,
(f) purchase
money Liens on fixed assets or the interests of lessors under Capital Leases to the extent that such Liens or interests secure Permitted
Purchase Money Indebtedness and so long as (i) such Lien attaches only to the fixed asset purchased or acquired and the proceeds
thereof, and (ii) such Lien only secures the Indebtedness that was incurred to acquire the fixed asset purchased or acquired or
any Refinancing Indebtedness in respect thereof,
-26-
(g) Liens
arising by operation of law in favor of warehousemen, landlords, carriers, mechanics, materialmen, laborers, or suppliers, incurred in
the ordinary course of business and not in connection with the borrowing of money, and which Liens either (i) are for sums not yet
delinquent, or (ii) are the subject of Permitted Protests,
(h) Liens
on amounts deposited to secure Comtech's and its Subsidiaries' obligations in connection with worker's compensation or other unemployment
insurance,
(i) Liens
on amounts deposited to secure Comtech's and its Subsidiaries' obligations in connection with the making or entering into of bids, tenders,
or leases in the ordinary course of business and not in connection with the borrowing of money,
(j) Liens
on amounts deposited to secure Comtech's and its Subsidiaries' reimbursement obligations with respect to surety or appeal bonds obtained
in the ordinary course of business and permitted under clause (h) of the definition of Permitted Indebtedness so long as such Liens
are not "all asset" or "substantially all asset" Liens and remain unperfected,
(k) with
respect to any Real Property, easements, rights of way, and zoning restrictions that do not materially interfere with or impair the use
or operation thereof,
(l) non-exclusive
licenses of rights in Intellectual Property, (i) in the ordinary course of business or (ii) consistent with past practice,
(m) Liens
that are replacements of Permitted Liens to the extent that the original Indebtedness is the subject of permitted Refinancing Indebtedness
and so long as the replacement Liens only encumber those assets that secured the original Indebtedness,
(n) rights
of setoff or bankers' liens upon deposits of funds in favor of banks or other depository institutions, solely to the extent incurred
in connection with the maintenance of such deposits and the use of Automated Clearing House transfers in connection therewith (including
in respect of ordinary course cash management activities), in each case, in the ordinary course of business,
(o) Liens
granted in the ordinary course of business on the unearned portion of insurance premiums securing the financing of insurance premiums
to the extent the financing is permitted under the definition of Permitted Indebtedness,
(p) Liens
in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation
of goods,
(q) Liens
solely on any cash earnest money deposits made by a Loan Party or any of its Subsidiaries in connection with any letter of intent or
purchase agreement with respect to a Permitted Acquisition,
-27-
(r) Liens
assumed by any Loan Party or its Subsidiaries in connection with a Permitted Acquisition that secure Acquired Indebtedness that is Permitted
Indebtedness so long as such Liens are limited to the assets financed thereby,
(s) Liens
over cash collateral or certificates of deposit, in each case in connection with the cash collateralization of letters of credit permitted
under clause (r) of the definition of Permitted Indebtedness, not in excess of 105% of the aggregate face amount of all such letters
of credit,
(t) Liens
securing the Indebtedness permitted under clause (s) of the definition of Permitted Indebtedness, and
(u) Liens
granted by a Subsidiary that is not a Loan Party securing an aggregate amount of Indebtedness (for all Subsidiaries that are not Loan
Parties, collectively) not to exceed $6,000,000, and which is permitted to be incurred by such Subsidiary under Section 6.1.
"Permitted Protest"
means the right of any Loan Party or any of its Subsidiaries to protest any Lien, taxes (other than payroll taxes or taxes that are the
subject of a United States federal tax lien), or rental payment; provided, that (a) a reserve with respect to such obligation
is established on such Loan Party's or its Subsidiaries' books and records in such amount as is required under GAAP and (b) any such
protest is instituted promptly and prosecuted diligently by such Loan Party or its Subsidiary, as applicable, in good faith.
"Permitted
Purchase Money Indebtedness" means, as of any date of determination, Indebtedness (other than the Obligations and the Senior
Credit Agreement Obligations, but including Capitalized Lease Obligations), incurred after the Closing Date and at the time of, or within
twenty (20) days after, the acquisition of any fixed assets for the purpose of financing all or any part of the acquisition cost
thereof, in an aggregate principal amount outstanding at any one time not in excess of $6,000,000.
"Person" means
natural persons, corporations, limited liability companies, limited partnerships, general partnerships, limited liability partnerships,
joint ventures, trusts, land trusts, business trusts, or other organizations, irrespective of whether they are legal entities, and governments
and agencies and political subdivisions thereof.
"PIK Interest"
has the meaning specified therefor in Section 2.6(c) of this Agreement.
"PPSA" means
the Personal Property Security Act (Ontario) and the Regulations thereunder, as from time to time in effect, provided, however,
if attachment, perfection or priority of Senior Credit Agreement Agent’s security interests in any Collateral (as defined in the
Senior Credit Agreement) are governed by the personal property security laws of any jurisdiction other than Ontario, PPSA shall mean those
personal property security laws as in effect from time to time in such other jurisdiction (including, without limitation, the Civil Code
of Québec) for the purposes of the provisions hereof relating to such attachment, perfection or priority and for the definitions
related to such provisions.
-28-
"Pro
Rata Share" means, as of any date of determination, with respect to a Lender's obligation to make all or a portion of
the Term Loans or any class thereof, as applicable, with respect to such Lender's right to receive payments of interest, fees, and principal
with respect to the Term Loans or any class thereof, as applicable, and with respect to all other computations and other matters related
to the Term Loan Commitments or the Term Loans, in each case or any class thereof, as applicable, the percentage obtained by dividing
(i) the Term Loan Exposure of such Lender, by (ii) the aggregate Term Loan Exposure of all applicable Lenders.
"Projections"
means Comtech's forecasted (a) balance sheets, (b) profit and loss statements, and (c) cash flow statements, all prepared
on a basis consistent with Comtech's historical financial statements, together with appropriate supporting details and a statement of
underlying assumptions.
“Purchase
Agreement” has the meaning specified therefor in Amendment No. 3.
"Purchase Price"
means, with respect to any Acquisition, an amount equal to the aggregate consideration, whether cash, property or securities (including
the fair market value of any Equity Interests of Comtech issued in connection with such Acquisition and including the maximum amount of
Earn-Outs), paid or delivered by a Loan Party or one of its Subsidiaries in connection with such Acquisition (whether paid at the closing
thereof or payable thereafter and whether fixed or contingent), but excluding therefrom (a) any cash of the seller and its Affiliates
used to fund any portion of such consideration, and (b) any cash or Cash Equivalents acquired in connection with such Acquisition.
"Qualified Cash"
means, as of any date of determination, the amount of unrestricted cash and Cash Equivalents of the Loan Parties that is in Deposit Accounts
or in Securities Accounts, or any combination thereof.
"Qualified Equity Interests"
means and refers to any Equity Interests issued by Comtech (and not by one or more of its Subsidiaries) that is not a Disqualified Equity
Interest.
"Real Property"
means any estates or interests (other than leasehold interests) in real property now owned or hereafter acquired by any Loan Party or
one of its Subsidiaries and the improvements thereto.
"Recipient"
means any recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder or under any other Loan
Document.
"Record" means
information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable
form.
"Refinancing Indebtedness"
means refinancings, renewals, or extensions of Indebtedness so long as:
(a) such
refinancings, renewals, or extensions do not result in an increase in the principal amount of the Indebtedness so refinanced, renewed,
or extended, other than by the amount of premiums paid thereon and the fees and expenses incurred in connection therewith and by the amount
of unfunded commitments with respect thereto,
-29-
(b) such
refinancings, renewals, or extensions do not result in a shortening of the final stated maturity or the average weighted maturity (measured
as of the refinancing, renewal, or extension) of the Indebtedness so refinanced, renewed, or extended, nor are they on terms or conditions
that, taken as a whole, are or could reasonably be expected to be materially adverse to the interests of the Lenders,
(c) if
the Indebtedness that is refinanced, renewed, or extended was subordinated in right of payment to the Obligations, then the terms and
conditions of the refinancing, renewal, or extension must include subordination terms and conditions that are at least as favorable to
the Lender Group as those that were applicable to the refinanced, renewed, or extended Indebtedness,
(d) the
Indebtedness that is refinanced, renewed, or extended is not recourse to any Person that is liable on account of the Obligations other
than those Persons which were obligated with respect to the Indebtedness that was refinanced, renewed, or extended,
(e) if
the Indebtedness that is refinanced, renewed or extended was unsecured, such refinancing, renewal or extension shall be unsecured, and
(f) if
the Indebtedness that is refinanced, renewed, or extended was secured (i) such refinancing, renewal, or extension shall be secured
by substantially the same or less collateral as secured such refinanced, renewed or extended Indebtedness on terms no less favorable to
Agent or the Lender Group and (ii) the Liens securing such refinancing, renewal or extension shall not have a priority more senior
than the Liens securing such Indebtedness that is refinanced, renewed or extended.
"Register"
has the meaning set forth in Section 13.1(h) of this Agreement.
"Related Fund"
means any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions
of credit in the ordinary course and that is administered, advised or managed by (a) a Lender, (b) an Affiliate of a Lender,
or (c) an entity or an Affiliate of an entity that administers, advises or manages a Lender.
"Releases"
has the meaning specified therefor in Section 4.11 of this Agreement.
"Remedial Action"
means all actions taken to (a) clean up, remove, remediate, contain, treat, monitor, assess, evaluate, or in any way address Hazardous
Materials in the indoor or outdoor environment, (b) prevent or minimize a release or threatened release of Hazardous Materials so
they do not migrate or endanger or threaten to endanger public health or welfare or the indoor or outdoor environment, (c) restore
or reclaim natural resources or the environment, (d) perform any pre-remedial studies, investigations, or post-remedial operation
and maintenance activities, or (e) conduct any other actions with respect to Hazardous Materials required by Environmental Laws;
provided, that Remedial Action shall not include any actions undertaken in the ordinary course of business to comply with Environmental
Laws in the course of daily operations.
"Required Amendment
No. 2 Priority Term Loan Lenders" means, at any time, Amendment No. 2 Priority Term Loan Lenders having or holding
more than 50% of the Term Loan Exposure (taking into account only the Amendment No. 2 Priority Term Loans) of all Amendment No. 2
Priority Term Loan Lenders.
-30-
"Required Lenders"
means, at any time, Lenders having or holding more than 50% of the aggregate Term Loan Exposure of all Lenders.
"Restricted Payment"
means (a) any declaration or payment of any dividend (fixed or otherwise) or the making of any other payment or distribution, directly
or indirectly, on account of Equity Interests (including, without limitation, common or preferred Equity Interests) issued by Comtech
or any of its Subsidiaries (including any payment in connection with any merger, amalgamation or consolidation involving Comtech or any
of its Subsidiaries) or to the direct or indirect holders of Equity Interests (including, without limitation, common or preferred Equity
Interests) issued by Comtech or any of its Subsidiaries in their capacity as such (other than dividends or distributions payable in Qualified
Equity Interests issued by Comtech or any of its Subsidiaries) or (b) any purchase, redemption, making of any sinking fund or similar
payment, or other acquisition or retirement for value (including in connection with any merger, amalgamation or consolidation involving
Comtech or any of its Subsidiaries) of any Equity Interests (including, without limitation, common or preferred Equity Interests) issued
by Comtech or any of its Subsidiaries, (c) any making of any payment to retire, or to obtain the surrender of, any outstanding warrants,
options, or other rights to acquire Equity Interests (including, without limitation, common or preferred Equity Interests) of Comtech
or any of its Subsidiaries now or hereafter outstanding, or (d) the making of any management, advisory or consulting fee to any Affiliate
of any Loan Party.
"Sanctioned Entity"
means (a) a country or territory or a government of a country or territory, (b) an agency of the government of a country or
territory, (c) an organization directly or indirectly controlled by a country or territory or its government, or (d) a Person
resident in or determined to be resident in a country or territory, in each case of clauses (a) through (d) that is a target
of Sanctions, including a target of any country sanctions program administered and enforced by OFAC.
"Sanctioned Person"
means, at any time (a) any Person named on the list of Specially Designated Nationals and Blocked Persons maintained by OFAC, OFAC's
consolidated Non-SDN list, on any list of the federal government of Canada or under the Canadian AML Laws, the Special Economic Measures
Act (Canada) or the Freezing Assets of Corrupt Foreign Officials Act (Canada) as a “designated person”, or “terrorist
group" or any other Sanctions-related list maintained by any Governmental Authority, (b) a Person or legal entity that is a
target of Sanctions, (c) any Person operating, organized or resident in a Sanctioned Entity, or (d) any Person directly or indirectly
owned or controlled (individually or in the aggregate) by or acting on behalf of any such Person or Persons described in clauses (a) through
(c) above.
"Sanctions"
means individually and collectively, respectively, any and all economic sanctions, trade sanctions, financial sanctions, sectoral sanctions,
secondary sanctions, trade embargoes anti-terrorism laws and other sanctions laws, regulations or embargoes, including those imposed,
administered or enforced from time to time by: (a) the United States of America, including those administered by OFAC, the U.S. Department
of State, the U.S. Department of Commerce, or through any existing or future executive order, (b) the United Nations Security Council,
(c) the European Union or any European Union member state, (d) His Majesty's Treasury of the United Kingdom, (e) the Canadian
government, or (f) any other Governmental Authority with jurisdiction over any member of Lender Group or any Loan Party or any of
their respective Subsidiaries or Affiliates.
-31-
"S&P" has
the meaning specified therefor in the definition of Cash Equivalents.
"SEC" means
the United States Securities and Exchange Commission and any successor thereto.
"Securities Account"
means a securities account (as that term is defined in the Code or the PPSA, as applicable).
"Securities Act"
means the Securities Act of 1933, as amended from time to time, and any successor statute.
"Senior Credit Agreement"
means that certain Credit Agreement, dated as of June 17, 2024, by and among Comtech Telecommunications Corp., a Delaware corporation,
as borrower, the lenders party thereto, Wingspire Capital LLC, as revolving agent, and TCW Asset Management Company LLC, as administrative
agent, as amended, restated, supplemented, refinanced, replaced or otherwise modified from time to time (and if terminated, as in effect
immediately prior to such termination).
“Senior Credit Agreement
Agent” has the meaning assigned to the term “Agent” in the Senior Credit Agreement.
“Senior Credit Agreement
Closing Date” has the meaning assigned to the term “Closing Date” in the Senior Credit Agreement.
“Senior Credit Agreement
Maturity Date” has the meaning assigned to the term “Maturity Date” in the Senior Credit Agreement.
“Senior Credit Agreement
Obligations” has the meaning assigned to the term “Obligations” in the Senior Credit Agreement.
“Senior Credit Agreement
Revolving Agent” has the meaning assigned to the term “Revolving Agent” in the Senior Credit Agreement.
“Specified
B-3 Preferred Equity COD” has the meaning set forth in the definition of Specified Preferred Equity Documents.
“Specified
B-4 Preferred Equity COD” has the meaning set forth in the definition of Specified Preferred Equity Documents.
"Specified Loan Party"
means each Loan Party other than a Canadian Loan Party or a US Loan Party.
-32-
"Specified Permitted
Individual Disposition" has the meaning assigned to such term in the Senior Credit Agreement (as in effect on the Amendment No. 2
Effective Date).
"Specified
Permitted Individual Disposition Prepayment Election" has the
meaning specified therefor in
the definition of "Net Cash Proceeds".
"Specified
Permitted Individual Disposition Termination" has the meaning specified therefor in the definition of "Net Cash Proceeds".
"Specified
Preferred Equity" means (a) prior to the
date of the Closing (as
defined in the Exchange Agreement), the shares of Series B-3
Convertible Preferred Stock of Comtech, par value $0.10 per share, authorized by the Board of Directors
of Comtech and initially issued to the Permitted Holders pursuant to the Certificate of Incorporation, the Bylaws and applicable law,
including any additional or exchanged shares issued after the Closing Date that are on the same terms and conditions as
the Series B-3 Convertible Preferred Stock of Comtech, par value $0.10 per share, in effect on the Closing Date and which do not
otherwise breach the terms of the Loan Documents.,
and (b) on and after the date of the "Closing" (as defined in the Exchange Agreement), the shares of Series B-4 Convertible
Preferred Stock of Comtech, par value $0.10 per share, authorized
by the Board of Directors of Comtech and initially issued to the Permitted Holders pursuant to the Certificate of Incorporation, the Bylaws
and applicable law, including
any additional or exchanged shares issued after the Amendment No. 3 Effective Date that are on the same terms and conditions as the
Series B-4 Convertible Preferred Stock of Comtech, par value $0.10 per share, in effect on the "Closing" (as defined in
the Exchange Agreement) (or other terms and conditions if the effect
thereof could not reasonably be expected to be adverse in any material respect to the interests of the Lenders) and which do not otherwise
breach the terms of the Loan Documents..
"Specified Preferred
Equity COD" has the meaning set forth in
the definition of Specifiedmeans
(i) prior to the date of the Closing (as defined in the Exchange Agreement), the Specified B-3 Preferred Equity DocumentsCOD,
and (ii) on and after the date of
the Closing (as defined in the Exchange Agreement), the Specified B-4 Preferred Equity COD.
"Specified
Preferred Equity Documents" means that (a) (i) prior
to the date of
the Closing (as
defined in the Exchange Agreement), (a) that certain
Certificate of Designations with respect to the Series B-3 Convertible Preferred Stock, dated as of March 3, 2025 (as amended,
restated, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms therein and herein)
(, the "“Specified
B-3 Preferred Equity COD"”),
and (b) that certain Subscription and Exchange Agreement, dated as of March 3, 2025, by and among Comtech and the Investors
listed on Exhibit B attached thereto.,
and (ii) on and after the date of the Closing (as defined in the Exchange Agreement), (a) that certain Certificate of Designations
with respect to the Series B-4 Convertible Preferred Stock, dated as of June 14,
2026 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms therein
and herein, the “Specified B-4 Preferred Equity COD”), and (b) the Exchange Agreement.
“Subordination
Agreement” means that certain Subordination and Intercreditor Agreement, dated as of October 17, 2024, by and among Agent,
Senior Credit Agreement Agent, the Lenders and the Loan Parties, as amended, restated, amended and restated, supplemented or otherwise
modified from time to time.
-33-
"Subsidiary"
of a Person means a corporation, partnership, limited liability company, or other entity in which that Person directly or indirectly owns
or controls the Equity Interests having ordinary voting power to elect a majority of the Board of Directors of such corporation, partnership,
limited liability company, or other entity.
"Tax Act" means
the Income Tax Act (Canada) and the regulations promulgated thereunder.
"Tax Indemnitee"
has the meaning specified therefor in Section 16.1 of this Agreement.
"Tax Lender"
has the meaning specified therefor in Section 14.2(a) of this Agreement.
"Taxes" means
any taxes, levies, imposts, duties, deductions, withholdings (including backup withholdings), fees, assessments or other charges now or
hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein, and all interest, additions
to tax, penalties or similar liabilities with respect thereto.
"Term Loans"
means the Closing Date Term Loans, the Amendment No. 1 Term Loans and the Amendment No. 2 Priority Term Loans, or any of them,
as applicable.
"Term Loan Amount"
means $25,000,000.
“Term
Loan Commitments" means the Closing Date Term Loan Commitments, the Amendment No. 1 Term Loan Commitments and the Amendment
No. 2 Priority Term Loan Commitments. The aggregate principal amount of all Term Loan Commitments (consisting solely of Amendment
No. 2 Priority Term Loan Commitments) as of the Amendment No. 2 Effective Date is $35,000,000, which amount will be immediately
reduced to $0 upon the funding of the Amendment No. 2 Priority Term Loans on the Amendment No. 2 Effective Date.
"Term Loan Exposure"
means, with respect to any Term Loan Lender, as of any date of determination, the amount of (x) such Lender's Term Loan Commitments
(or any class thereof, as applicable) plus (y) the outstanding principal amount of Term Loans (or any class thereof, as applicable)
held by such Lender.
"Term
Loan Lenders" means the Closing Date Term Loan Lenders, the Amendment No. 1 Term Loan Lenders and the Amendment No. 2
Priority Term Loan Lenders, or any of them, as applicable.
"Transformation Plan"
means the Cost-Savings and Profit Improvement Initiatives described by Comtech in its filings with the SEC in its most recent Form 10-K
annual report, Form 10-Q quarterly report or Form 8-K current report, as amended from time to time in accordance with Section 5.13.
-34-
"TTM EBITDA"
means, as of any date of determination, EBITDA of Comtech, determined on a consolidated basis, for the 12 month period most recently ended.
"UK" and "United
Kingdom" mean the United Kingdom of Great Britain and Northern Ireland.
"UK Guarantee Limitations"
means the UK Loan Party limitations set out in Section 17.13 of this Agreement.
"Unfinanced Capital
Expenditures" means Capital Expenditures (a) not financed with the proceeds of any incurrence of Indebtedness (other than
the incurrence of any Revolving Loans), the proceeds of any sale or issuance of Equity Interests or equity contributions, the proceeds
of any asset sale (other than the sale of Inventory in the ordinary course of business) or any insurance proceeds, and (b) that are
not reimbursed by a third person (excluding any Loan Party or any of its Affiliates) in the period such expenditures are made pursuant
to a written agreement.
"United States"
means the United States of America.
"U.S. Person"
means a "United States person" within the meaning of Section 7701(a)(30) of the IRC.
"US Loan Party"
means any Loan Party that is organized under the laws of the United States, any state thereof or the District of Columbia.
"Voidable Transfer"
has the meaning specified therefor in Section 17.8 of this Agreement.
"Withdrawal Liability"
means liability with respect to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
-35-
1.2. Accounting
Terms. Except as otherwise expressly provided herein, all accounting and financial terms not specifically defined herein shall
be construed in accordance with GAAP, as in effect from time to time; provided, that if Borrower notifies Agent that Borrower requests
an amendment to any provision hereof to eliminate the effect of any Accounting Change occurring after the Closing Date or in the application
thereof on the operation of such provision (or if Agent notifies Borrower that the Required Lenders request an amendment to any provision
hereof for such purpose), regardless of whether any such notice is given before or after such Accounting Change or in the application
thereof, then Agent and Borrower agree that they will negotiate in good faith amendments to the provisions of this Agreement that are
directly affected by such Accounting Change with the intent of having the respective positions of the Lenders and Borrower after such
Accounting Change conform as nearly as possible to their respective positions immediately before such Accounting Change took effect and,
until any such amendments have been agreed upon and agreed to by the Required Lenders, the provisions in this Agreement shall be calculated
as if no such Accounting Change had occurred. When used herein, the term "financial statements" shall include the notes and
schedules thereto. Whenever the term "Comtech" is used in respect of a financial covenant or a related definition, it shall
be understood to mean the Loan Parties and their Subsidiaries on a consolidated basis, unless the context clearly requires otherwise.
Notwithstanding anything to the contrary contained herein, (a) all financial statements delivered hereunder shall be prepared, and
all financial covenants contained herein shall be calculated, without giving effect to (i) any election under the Statement of Financial
Accounting Standards Board's Accounting Standards Codification Topic 825 (or any similar accounting principle) permitting a Person to
value its financial liabilities or Indebtedness at the fair value thereof and (ii) any treatment of Indebtedness in respect of convertible
debt instruments under Financial Accounting Standards Board's Accounting Standards Codification 470-20 (or any similar accounting principle
having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness
shall at all times be valued at the full stated principal amount thereof, (b) notwithstanding any changes in GAAP after the Closing
Date, any lease of the Borrower or its Subsidiaries or of a special purpose or other entity not consolidated with the Borrower and its
Subsidiaries at the time of its incurrence of such lease, that would be characterized as an operating lease under GAAP in effect on the
Closing Date (whether such lease is entered into before or after the Closing Date) shall not constitute Indebtedness or a Capitalized
Lease Obligation of the Borrower or any Subsidiary under this Agreement or any other Loan Document, including negative covenants, financial
covenants and component definitions, as a result of such changes in GAAP after the Closing Date, and (c) the term "unqualified
opinion" as used herein to refer to opinions or reports provided by accountants shall mean an opinion or report that is (i) unqualified,
and (ii) does not include any explanation, supplemental comment, or other comment concerning the ability of the applicable Person
to continue as a going concern or concerning the scope of the audit.
1.3. Construction.
Unless the context of this Agreement or any other Loan Document clearly requires otherwise, references to the plural include the singular,
references to the singular include the plural, the terms "includes" and "including" are not limiting, and the term
"or" has, except where otherwise indicated, the inclusive meaning represented by the phrase "and/or." The words "hereof,"
"herein," "hereby," "hereunder," and similar terms in this Agreement or any other Loan Document refer to
this Agreement or such other Loan Document, as the case may be, as a whole and not to any particular provision of this Agreement or such
other Loan Document, as the case may be. Section, subsection, clause, schedule, and exhibit references herein are to this Agreement unless
otherwise specified. Any reference in this Agreement or in any other Loan Document to any agreement, instrument, or document shall include
all alterations, amendments, changes, extensions, modifications, renewals, replacements, substitutions, joinders, and supplements, thereto
and thereof, as applicable (subject to any restrictions on such alterations, amendments, changes, extensions, modifications, renewals,
replacements, substitutions, joinders, and supplements set forth herein). The words "asset" and "property" shall be
construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties. Any reference
herein or in any other Loan Document to the satisfaction, repayment, or payment in full of the Obligations shall mean (a) the payment
or repayment in full in immediately available funds of (i) the principal amount of all outstanding Loans, together with the payment
of the Make-Whole Amount and (ii) all fees or charges that have accrued hereunder or under any other Loan Document and are unpaid,
and (b) the termination of all of the Term Loan Commitments of the Lenders. Any reference herein to any Person shall be construed
to include such Person's successors and assigns. Any requirement of a writing contained herein or in any other Loan Document shall be
satisfied by the transmission of a Record.
-36-
1.4. Time
References. Unless the context of this Agreement or any other Loan Document clearly requires otherwise, all references to time
of day refer to Eastern standard time or Eastern daylight saving time, as in effect in New York, New York on such day. For purposes of
the computation of a period of time from a specified date to a later specified date, unless otherwise expressly provided, the word "from"
means "from and including" and the words "to" and "until" each means "to and including"; provided,
that with respect to a computation of fees or interest payable to Agent or any Lender, such period shall in any event consist of at least
one full day.
1.5. Schedules
and Exhibits. All of the schedules and exhibits attached to the Senior Credit Agreement as of the Senior Credit Agreement Closing
Date shall be deemed incorporated herein by reference unless otherwise provided for herein.
1.6. Divisions.
For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware law (or any comparable event
under a different jurisdiction's laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right,
obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent
Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized on the first date
of its existence by the holders of its Equity Interests at such time.
2. LOANS AND TERMS OF PAYMENT.
2.1. [Reserved].
2.2. Term
Loan.
(a) Subject
to the terms and conditions of this Agreement, on the Closing Date each Lender with a Closing Date Term Loan Commitment agrees (severally,
not jointly or jointly and severally) to make term loans (collectively, the "Closing Date Term Loan") to Borrower in
an amount equal to the lesser of (i) such Lender's Closing Date Term Loan Commitment, and (ii) such Lender's Pro Rata Share
of the Term Loan Amount as of the Closing Date.
(b) The
outstanding unpaid principal balance of the Term Loans (including any PIK Interest), any applicable accrued and unpaid interest on the
Term Loans and the applicable Make-Whole Amount shall, in each case, be due and payable on the earlier of (i) the Maturity Date,
and (ii) the date on which the Term Loans otherwise become due and payable pursuant to the terms of this Agreement, including by
way of acceleration or otherwise. Any principal amount of the Term Loan that is repaid or prepaid may not be reborrowed. All principal
and other amounts payable in respect of the Term Loan (including any applicable interest and the applicable Make-Whole Amount) shall constitute
Obligations hereunder.
(c) Subject
to the terms and conditions of this Agreement and Amendment No. 1, on the Amendment No. 1 Effective Date, each Amendment No. 1
Term Loan Lender agrees (severally, not jointly or jointly and severally) to make Amendment No. 1 Terms Loans to Borrower in an aggregate
principal amount equal to such Lender’s Amendment No. 1 Term Loan Commitment. Amounts repaid or prepaid in respect of the Amendment
No. 1 Term Loans may not be reborrowed. Except with respect to the applicable Make-Whole Amount, the Amendment No. 1 Term Loans
shall have the same terms as, and constitute the same class as, the Term Loans existing immediately prior to the Amendment No. 1
Effective Date.
-37-
(d) Subject
to the terms and conditions of this Agreement and Amendment No. 2, on the Amendment No. 2 Effective Date, each Amendment No. 2
Priority Term Loan Lender agrees (severally, not jointly or jointly and severally) to make Amendment No. 2 Priority Terms Loans to
Borrower in an aggregate principal amount equal to such Lender’s Amendment No. 2 Priority Term Loan Commitment. Amounts repaid
or prepaid in respect of the Amendment No. 2 Priority Term Loans may not be reborrowed.
2.3. Disbursement
of Funds.
(a) On
each applicable Funding Date, each Term Loan Lender shall wire its portion of the Term Loan equal to its allocation of the Term Loan Commitment
as of such date to the Designated Account.
(b) Notation.
Consistent with Section 13.1(h), Agent, as a non-fiduciary agent for Borrower, shall maintain a register showing the principal
amount and stated interest of the Term Loan owing to each Term Loan Lender owing to Agent, and the interests therein of each Lender, from
time to time and such register shall, absent manifest error, conclusively be presumed to be correct and accurate.
(c) Independent
Obligations. All Loans on any given Funding Date shall be made by the Lenders contemporaneously and in accordance with their Pro Rata
Shares on such Funding Date. It is understood that (i) no Lender shall be responsible for any failure by any other Lender to perform
its obligation to make any Loan (or other extension of credit) hereunder, nor shall any Term Loan Commitment of any Lender be increased
or decreased as a result of any failure by any other Lender to perform its obligations hereunder, and (ii) no failure by any Lender
to perform its obligations hereunder shall excuse any other Lender from its obligations hereunder.
2.4. Payments;
Prepayments.
(a) Payments
by Borrower.
(i) Except
as otherwise expressly provided herein, all payments by Borrower shall be made to Agent's Account for the account of the Lender Group
and shall be made in immediately available funds, no later than 1:30 p.m. on the date specified herein. Any payment received by Agent
in immediately available funds in Agent's Account later than 1:30 p.m. may be deemed to have been received (unless Agent, in its
sole discretion, elects to credit it on the date received) on the following Business Day and any applicable interest or fee shall continue
to accrue until such following Business Day.
(ii) Unless
Agent receives written notice from Borrower prior to the date on which any payment is due to the Lenders that Borrower will not make such
payment in full as and when required, Agent may assume that Borrower has made (or will make) such payment in full to Agent on such date
in immediately available funds and Agent may (but shall not be so required), in reliance upon such assumption, distribute to each Lender
on such due date an amount equal to the amount then due such Lender.
-38-
(iii) Except
as otherwise expressly provided herein, all payments by Borrower in respect of the Term Loan shall be applied (x) first to the Amendment
No. 2 Priority Term Loans and (y) then, on a pro rata basis as between the Closing Date Term Loans and the Amendment
No. 1 Term Loans.
(b) Apportionment
and Application.
(i) Subject
to the occurrence of the Discharge of Senior Credit Agreement Obligations, so long as no Application Event has occurred and is continuing,
(x) all principal and interest payments received by Agent shall be apportioned ratably among (1) first to the Amendment No. 2
Priority Term Loan Lenders in respect of the Amendment No. 2 Priority Term Loans and (2) then, on a pro rata basis, as
between the Closing Date Term Loan Lenders (in respect of the Closing Date Term Loans) and the Amendment No. 1 Term Loan Lenders
(in respect of the Amendment No. 1 Term Loans) and according to the unpaid principal balance of the Obligations to which such payments
relate held by each Lender) and (y) all payments of fees and expenses received by Agent (other than fees or expenses that are for
Agent's separate account) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Term Loan Commitment or
Obligation to which a particular fee or expense relates.
(ii) Subject
to Section 2.4(b)(v), Section 2.4(d) and Section 2.4(e), and the occurrence of the Discharge
of Senior Credit Agreement Obligations, all payments to be made hereunder by Borrower shall be remitted to Agent and all such payments
shall be applied, so long as no Application Event has occurred and is continuing, to reduce the balance of the Loans outstanding (including
fees, interest and principal) and, thereafter, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto
under applicable law.
(iii) Subject
to the occurrence of the Discharge of Senior Credit Agreement Obligations, at any time that an Application Event has occurred and is continuing,
all payments remitted to Agent shall be applied (without duplication) as follows:
(A) first,
to pay any fees, cost or expense reimbursements or indemnities then due to Agent under the Loan Documents, until paid in full,
(B) second,
to pay any fees or premiums then due to Agent under the Loan Documents, until paid in full,
(C) third,
ratably, to pay any cost or expense reimbursements or indemnities then due to any of the Amendment No. 2 Priority Term Loan Lenders
under the Loan Documents, until paid in full,
(D) fourth,
ratably, to pay any fees or premiums then due to any of the Amendment No. 2 Priority Term Loan Lenders under the Loan Documents,
until paid in full,
(E) fifth,
ratably, to pay the accrued and unpaid interest on the Amendment No. 2 Priority Term Loans under the Loan Documents, until paid in
full,
-39-
(F) sixth,
ratably, to pay the principal of the Amendment No. 2 Priority Term Loans, until paid in full,
(G) seventh,
ratably, to pay any cost or expense reimbursements or indemnities then due to any of the Closing Date Term Loan Lenders and the Amendment
No. 1 Term Loan Lenders under the Loan Documents, until paid in full,
(H) eighth,
(x) if the applicable Make-Whole Amount for the Closing Term Loan and the Amendment No. 1 Term Loan are subject to the same
MOIC Level, ratably, to pay the applicable Make-Whole Amount then due to any of the Lenders under the Loan Documents, until paid in full,
or (y) if the applicable Make-Whole Amount for the Closing Term Loan and the Amendment No. 1 Term Loan are subject to different
MOIC Levels, (I) first, ratably, to pay the applicable Make-Whole Amount then due to any of the Lenders calculated based on the lower
of the two MOIC Levels, until the applicable Make-Whole Amount for the tranche of Term Loans subject to the lower MOIC Level has been
paid in full and (II) then, to pay the remaining applicable Make-Whole Amount for the tranche of Term Loans subject to the higher
MOIC Level, until paid in full or until the applicable Make-Whole Amount for the Closing Term Loan and the Amendment No. 1 Term Loan
are again subject to the different MOIC Levels (in which case, the remaining payments shall continue to be applied in accordance with
the allocations set forth in this clause (y)),
(I) ninth,
ratably, to pay the principal of the Closing Date Term Loans and the Amendment No. 1 Term Loans on a pro rata basis as between
the Closing Date Term Loan and the Amendment No. 1 Term Loans, until paid in full,
(J) tenth,
to pay any other Obligations, and
(K) eleventh,
to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(iv) Agent
promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds
as it may be entitled to receive.
(v) In
each instance, so long as no Application Event has occurred and is continuing, Section 2.4(b)(ii) shall not apply to
any payment made by Borrower to Agent and specified by Borrower to be for the payment of specific Obligations then due and payable (or
prepayable) under any provision of this Agreement or any other Loan Document.
(vi) For
purposes of Section 2.4(b)(iii), "paid in full" of a type of Obligation means payment in cash or immediately available
funds of all amounts owing on account of such type of Obligation, including interest accrued after the commencement of any Insolvency
Proceeding, default interest, interest on interest, and expense reimbursements, irrespective of whether any of the foregoing would be
or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
-40-
(vii) In
the event of a direct conflict between the priority provisions of this Section 2.4 and any other provision contained in this
Agreement or any other Loan Document, it is the intention of the parties hereto that such provisions be read together and construed, to
the fullest extent possible, to be in concert with each other.
(c) Reduction
of Commitments. (i) The Closing Date Term Loan Commitments shall terminate upon the making of the Closing Date Term Loan on the
Closing Date, (ii) the Amendment No. 1 Term Loan Commitments shall terminate upon the making of the Amendment No. 1 Term
Loan on the Amendment No. 1 Effective Date and (iii) the Amendment No. 2 Priority Term Loan Commitments shall terminate
upon the making of the Amendment No. 2 Priority Term Loans on the Amendment No. 2 Effective Date.
(d) Optional
Prepayments. Subject to Section 2.6, to the extent permitted by the Subordination Agreement, the Borrower may, upon one
(1) Business Day prior written notice to Agent (or such later date as permitted by Agent in its sole discretion), prepay the principal
of the Term Loan, in whole or in part. Any optional prepayments pursuant to this Section 2.4(d) shall be subject to the
terms of the Subordination Agreement in all respects.
(e) Mandatory
Prepayments.
(i) Dispositions.
If, at any time after the occurrence of the Discharge of Senior Credit Agreement Obligations, and subject to Section 2.6,
within one (1) Business Day of the date of receipt by any Loan Party or any of its Subsidiaries of the Net Cash Proceeds of any voluntary
or involuntary sale or disposition of assets of any Loan Party or any of its Subsidiaries (including Net Cash Proceeds of insurance or
arising from casualty losses or condemnations and payments in lieu thereof, and
Net Cash Proceeds constituting initial consideration received with respect to any voluntary or involuntary sale or disposition of assets
(including, for the avoidance of doubt, the "Advance Payment" (as defined in the Purchase Agreement)), but excluding
Net Cash Proceeds from sales or dispositions which qualify as Permitted Dispositions under clauses (a), (b), (c), (d), (e), (f), to the
extent any such disposition is consistent with past practice (i), (j), (k), (l), (m), (n), or (o) of the definition of Permitted
Dispositions), Borrower shall prepay the outstanding principal amount of the Obligations in accordance with Section 2.4(f)(ii) in
an amount equal to 100% of such Net Cash Proceeds received by such Person in connection with such sales or dispositions (or, solely with
respect to a Permitted Disposition under clause (s) of the definition of Permitted Dispositions, the amount of such Net Cash Proceeds
as set forth in such clause); provided, that so long as (A) no Default or Event of Default shall have occurred and is continuing
or would result therefrom, (B) Borrower shall have given Agent prior written notice of Borrower's intention to apply such monies
to the costs of replacement of the properties or assets that are the subject of such sale or disposition or the cost of purchase or construction
of other assets useful in the business of such Loan Party or its Subsidiaries, (C) [reserved], and (D) such Loan Party or its
Subsidiary, as applicable, completes such replacement, purchase, or construction within 180 days after the initial receipt of such monies,
then the Loan Party or such Loan Party's Subsidiary whose assets were the subject of such disposition shall have the option to apply such
monies to the costs of replacement of the assets that are the subject of such sale or disposition unless and to the extent that such applicable
period shall have expired without such replacement, purchase, or construction being made or completed, in which case, any amounts remaining
shall be paid to Agent and applied in accordance with Section 2.4(f)(ii); provided, that (1) no Loan Party nor
any of its Subsidiaries shall have the right to use such Net Cash Proceeds (other than Net Cash Proceeds of insurance or arising from
casualty losses or condemnations and payments in lieu thereof) to make such replacements, purchases, or construction in excess of $6,000,000
in any given fiscal year and (2) the Net Cash Proceeds from sales or dispositions under clause (s) of the definition of Permitted
Dispositions may not be used to make such replacements, purchases or constructions. Nothing contained in this Section 2.4(e)(i) shall
permit any Loan Party or any of its Subsidiaries to sell or otherwise dispose of any assets other than in accordance with Section 6.4.
-41-
(ii) Indebtedness.
Subject to the occurrence of the Discharge of Senior Credit Agreement Obligations, within one Business Day of the date of incurrence by
any Loan Party or any of its Subsidiaries of any Indebtedness (other than Permitted Indebtedness), Borrower shall prepay the outstanding
principal amount of the Obligations in accordance with Section 2.4(f)(ii) in an amount equal to 100% of the Net Cash
Proceeds received by such Person in connection with such incurrence. The provisions of this Section 2.4(e)(ii) shall
not be deemed to be implied consent to any such incurrence otherwise prohibited by the terms of this Agreement.
(iii) Limitation.
Notwithstanding any other provisions of this Section 2.4(e) to the contrary, to the extent that any or all of the Net
Cash Proceeds received by a Foreign Subsidiary that would otherwise be required to be applied as a prepayment pursuant to Section 2.4(e)(i),
but is prohibited, restricted or delayed by applicable local law from being repatriated to the United States, or to the extent that any
or all of the Net Cash Proceeds received by a Foreign Subsidiary (other than a Designated Foreign Guarantor) that would otherwise be required
to be applied as a prepayment pursuant to 2.4(e)(i) could have a material adverse tax consequence (as determined in good faith
by the Borrower and including as the result of the repatriation thereof), an amount equal to the portion of such Net Cash Proceeds so
affected will not be required to be applied to repay the Loans at the times provided in this Section 2.4(e) until such
time, in the reasonable opinion of the Borrower, as such prohibition, restriction, delay or tax consequence no longer applies.
(iv) Curative
Equity. Subject to, and solely after, the occurrence of the Discharge of Senior Credit Agreement Obligations, within one Business
Day of the date of receipt by any Loan Party of the proceeds of any Curative Equity pursuant to Section 9.3, Borrowers shall
prepay the outstanding principal of the Obligations in accordance with Section 2.4(f)(ii) in an amount equal to 100%
of such proceeds.
(v) Any
mandatory prepayments pursuant to this Section 2.4(e) shall be subject to the terms of the Subordination Agreement in
all respects.
(f) Application
of Payments.
(i) A
prepayment pursuant to Section 2.4(e)(i) shall, (1) so long as no Application Event shall have occurred and be
continuing, be applied (x) first, ratably to the outstanding principal amount of the Amendment No. 2 Priority Term Loans until
paid in full and (y) then, on a pro rata basis as between the outstanding principal amount of the Closing Date Term Loans
and the outstanding principal amount of the Amendment No. 1 Term Loans until paid in full, and (2) if an Application Event shall
have occurred and be continuing, be applied in the manner set forth in Section 2.4(b)(iii).
-42-
(ii) Borrower
shall provide prior written notice to Agent by no later than 3:00 p.m. on the date that is one Business Day prior to the date of
any such prepayment pursuant to Section 2.4(e)(i) or 2.4(e)(ii) and each such prepayment shall (A) so
long as no Application Event shall have occurred and be continuing, be applied (x) first, ratably to the outstanding principal amount
of the Amendment No. 2 Priority Term Loans until paid in full and (y) then, on a pro rata basis as between the outstanding
principal amount of the Closing Date Term Loans and the outstanding principal amount of the Amendment No. 1 Term Loans until paid
in full, and (B) if an Application Event shall have occurred and be continuing, be applied in the manner set forth in Section 2.4(b)(iii).
Each such prepayment of the Term Loans shall be applied pro rata against the remaining installments of principal of the Term Loans (for
the avoidance of doubt, any amount that is due and payable on the Maturity Date shall constitute an installment).
2.5. Promise
to Pay; Promissory Notes.
(a) Borrower
promises to pay all of the Obligations (including principal, interest, PIK Interest, premiums, if any, fees, costs, and expenses) in full
on the Maturity Date or, if earlier, on the date on which the Obligations become due and payable pursuant to the terms of this Agreement.
Borrower agrees that its obligations contained in the first sentence of this Section 2.5(a) shall survive payment or
satisfaction in full of all other Obligations.
(b) Any
Lender may request that its Loans made by it be evidenced by one or more promissory notes. In such event, Borrower shall execute and deliver
to such Lender the requested promissory notes payable to the order of such Lender in a form furnished by such Lender and reasonably satisfactory
to Borrower. Thereafter, the Loans evidenced by such promissory notes and interest thereon shall at all times be represented by one or
more promissory notes in such form payable to the order of the payee named therein.
2.6. Make-Whole
Amount; Interest.
(a) Subject
to the Subordination Agreement, in the event that the Borrower prepays any class of Term Loans pursuant to Section 2.4(d) or
Section 2.4(e), or upon the acceleration of the Obligations pursuant to Section 9.1 for any reason, including,
without limitation, as a result of any Insolvency Proceeding, the Borrower shall pay to the Agent for the ratable benefit of each of the
applicable Lenders, (x) all accrued and unpaid interest thereon and (y) the applicable Make-Whole Amount, as applicable, with
respect to such class.
(b) The
Closing Date Term Loans and the Amendment No. 1 Term Loans shall not bear interest other than as set forth in the definition of “Make-Whole
Amount.”
-43-
(c) The
Amendment No. 2 Priority Term Loans shall bear interest on the unpaid principal amount thereof from the date made to (and including)
the date or repayment (whether by acceleration or otherwise) at the Interest Rate; provided that the accrued interest on the outstanding
principal amount of the Amendment No. 2 Priority Term Loans shall be paid, in kind, by capitalizing and adding the unpaid and accrued
amount of such interest (each such amount so capitalized, “PIK Interest”) to the aggregate outstanding principal amount
of the Amendment No. 2 Priority Term Loans on the last Business Day of each fiscal quarter. To the extent the Borrower fails to deliver,
for any fiscal quarter, an appropriately completed and duly executed Interest Rate Certificate to the Agent as required by Section 5.2,
the Amendment No. 2 Priority Term Loans shall continue accruing interest at the prevailing rate of interest applicable thereto. If
the Borrower determines or the Agent or the Amendment No. 2 Priority Term Loans Lenders reasonably and in good faith determine (including
by using reasonable efforts to consult with the Borrower and the Senior Credit Agreement Agent) that (x)(i) the rate of interest
set forth in any Interest Rate Certificate delivered to the Agent by the Borrower as of any applicable date was inaccurate and (ii) a
proper calculation thereof would have resulted in higher interest for any period or (y) as a result of the Borrower’s failure
to timely deliver an Interest Rate Certificate to the Agent for any applicable period, a timely delivered Interest Rate Certificate would
have resulted in higher interest and/or fees for any period, then in each case of the foregoing clauses (x) and (y), an amount equal
to the excess of the amount of interest and fees that should have been paid for such period over the amount of interest actually paid
for such period shall, automatically and without demand by any party, be paid, in kind, by capitalizing and adding such amount to the
aggregate outstanding principal amount of the Amendment No. 2 Priority Term Loans. Without the written directive (which may be via
email) of the Required Amendment No. 2 Priority Term Loan Lenders, the Agent shall have no obligation to reflect on the applicable
records (and shall have no liability for its failure to so reflect) the capitalization of any additional amounts determined in accordance
with the immediately preceding sentence to be paid, in kind, by capitalizing and adding such amount to the aggregate outstanding principal
amount of the Amendment No. 2 Priority Term Loans. Any amounts paid, in kind, by capitalizing and adding the unpaid and accrued amount
(including, without limitation, PIK Interest) to the aggregate outstanding principal amount of the Amendment No. 2 Priority Term
Loans shall be considered principal for all purposes hereunder (and shall bear interest in accordance with this Section 2.6(c) from
the date on which such amount should have been so capitalized and added).
2.7. Crediting
Payments. The receipt of any payment item by Agent shall not be considered a payment on account unless such payment item is a
wire transfer of immediately available funds made to Agent's Account or unless and until such payment item is honored when presented for
payment. Should any payment item not be honored when presented for payment, then Borrower shall be deemed not to have made such payment.
Anything to the contrary contained herein notwithstanding, any payment item shall be deemed received by Agent only if it is received into
Agent's Account on a Business Day on or before 4:30 p.m. If any payment item is received into Agent's Account on a non-Business
Day or after 4:30 p.m. on a Business Day (unless Agent, in its sole discretion, elects to credit it on the date received), it shall
be deemed to have been received by Agent as of the opening of business on the immediately following Business Day.
2.8. Designated
Account. The Agent is authorized to make Loans under this Agreement based upon instructions received from anyone purporting to
be an Authorized Person. Unless otherwise agreed by Agent and Borrower, any Loan requested by Borrower and made by Agent or the Lenders
hereunder shall be made to the Designated Account.
3. CONDITIONS; TERM OF AGREEMENT.
3.1. Conditions
Precedent to the Initial Extension of Credit. The obligation of each Lender to make the initial extensions of credit provided
for hereunder (other than with respect to (x) the Amendment No. 1 Term Loans, the conditions to funding of which are set forth
in Amendment No. 1 and (y) the Amendment No. 2 Priority Term Loans, the conditions to funding of which are set forth in
Amendment No. 2) is subject to the fulfillment, to the satisfaction of Agent and each Lender, of each of the conditions precedent
set forth on Schedule 3.1 to this Agreement (the making of such initial extensions of credit by a Lender being conclusively deemed
to be its satisfaction or waiver of the conditions precedent).
-44-
For purposes of determining
compliance with the conditions specified in this Section 3.1, each Lender that has signed this Agreement shall be deemed to
have consented to, approved, or accepted, or to be satisfied with, each document or other matter required hereunder to be consented to,
approved by, or acceptable or satisfactory to a Lender unless the Agent shall have received notice from such Lender prior to the proposed
Closing Date specifying its objection thereto.
3.2. Maturity.
This Agreement shall continue in full force and effect for a term ending on the Maturity Date (unless terminated earlier in accordance
with the terms hereof).
3.3. Effect
of Maturity. On the Maturity Date, all of the Obligations (including all PIK Interest, accrued and unpaid interest and the Make-Whole
Amount) immediately shall become due and payable without notice or demand and subject to the Subordination Agreement, Borrower shall be
required to repay all of the Obligations (including all accrued and unpaid interest and the Make-Whole Amount) in full. No termination
of the obligations of the Lender Group (other than payment in full of the Obligations) shall relieve or discharge any Loan Party of its
duties, obligations, or covenants hereunder or under any other Loan Document.
4. REPRESENTATIONS AND WARRANTIES.
In order to induce the Lender
Group to enter into this Agreement, Borrower makes the following representations and warranties to the Lender Group which shall be true,
correct, and complete, in all material respects (except that such materiality qualifier shall not be applicable to any representations
and warranties that already are qualified or modified by materiality in the text thereof), as of the Closing Date, and shall be true,
correct, and complete, in all material respects (except that such materiality qualifier shall not be applicable to any representations
and warranties that already are qualified or modified by materiality in the text thereof), as of the date of the making of each Loan made
thereafter, as though made on and as of the date of such Loan (or any other extension of credit) or delivery (except to the extent that
such representations and warranties relate solely to an earlier date, in which case such representations and warranties shall be true
and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties
that already are qualified or modified by materiality in the text thereof) as of such earlier date), and such representations and warranties
shall survive the execution and delivery of this Agreement:
4.1. Due
Organization and Qualification; Subsidiaries.
(a) Each
Loan Party and each of its Subsidiaries (i) is duly organized and existing and in good standing (where applicable) under the laws
of the jurisdiction of its incorporation, organization or formation, (ii) is qualified to do business in any state where the failure
to be so qualified could reasonably be expected to result in a Material Adverse Effect, and (iii) has all requisite power and authority
to own and operate its properties, to carry on its business as now conducted and as proposed to be conducted, to enter into the Loan Documents
to which it is a party and to carry out the transactions contemplated thereby; provided that in respect of any Foreign Subsidiary,
this representation shall be subject to the Legal Reservations (as applicable).
-45-
(b) Set
forth on Schedule 4.1(b) to the Senior Credit Agreement (as such Schedule may be updated from time to time to reflect changes
resulting from transactions permitted under the Senior Credit Agreement) is a complete and accurate description of the authorized Equity
Interests of each Subsidiary that is a Loan Party, by class, and, as of the Senior Credit Agreement Closing Date, a description of the
number of shares of each such class that are issued and outstanding.
(c) Set
forth on Schedule 4.1(c) to the Senior Credit Agreement (as such Schedule may be updated from time to time to reflect
changes resulting from transactions permitted under the Senior Credit Agreement), is a complete and accurate list of the Loan Parties'
direct and indirect Subsidiaries, showing: (i) the number of shares of each class of Equity Interests authorized for each of such
Subsidiaries, and (ii) the number and the percentage of the outstanding shares of each such class owned directly or indirectly by
Comtech. All of the outstanding Equity Interests of each such Subsidiary has been validly issued and is fully paid and non-assessable.
(d) Except
as set forth on Schedule 4.1(d) to the Senior Credit Agreement, there are no subscriptions, options, warrants, or calls relating
to any shares of any Loan Party's or any of its Subsidiaries' Equity Interests, including any right of conversion or exchange under any
outstanding security or other instrument. Except as set forth on Schedule 4.1(d) to the Senior Credit Agreement, no Loan Party
is subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its Equity Interests
or any security convertible into or exchangeable for any of its Equity Interests.
4.2. Due
Authorization; No Conflict.
(a) As
to each Loan Party, the execution, delivery, and performance by such Loan Party of the Loan Documents to which it is a party have been
duly authorized by all necessary action on the part of such Loan Party.
(b) As
to each Loan Party, the execution, delivery, and performance by such Loan Party of the Loan Documents to which it is a party do not and
will not (i) violate any material provision of federal, state, provincial, territorial or local law or regulation applicable to any
Loan Party or its Subsidiaries, the Governing Documents of any Loan Party or its Subsidiaries, or any order, judgment, or decree of any
court or other Governmental Authority binding on any Loan Party or its Subsidiaries; provided that in respect of any Foreign Subsidiary,
this representation shall be subject to the Legal Reservations (as applicable), (ii) conflict with, result in a breach of, or constitute
(with due notice or lapse of time or both) a default under any material agreement (including any Material Contract) of any Loan Party
or its Subsidiaries where any such conflict, breach or default could individually or in the aggregate reasonably be expected to have a
Material Adverse Effect, (iii) result in or require the creation or imposition of any Lien of any nature whatsoever upon any assets
of any Loan Party, other than Permitted Liens, or (iv) require any approval of any holder of Equity Interests of a Loan Party or
any approval or consent of any Person under any material agreement (including any Material Contract) of any Loan Party, other than consents
or approvals that have been obtained and that are still in force and effect and except, in the case of material agreements (including
Material Contracts), for consents or approvals, the failure to obtain could not individually or in the aggregate reasonably be expected
to cause a Material Adverse Effect.
-46-
4.3. Governmental
Consents. The execution, delivery, and performance by each Loan Party of the Loan Documents to which such Loan Party is a party
and the consummation of the transactions contemplated by the Loan Documents do not and will not require any registration with, consent,
or approval of, or notice to, or other action with or by, any Governmental Authority, other than registrations, consents, approvals, notices,
or other actions that have been obtained and that are still in force and effect or otherwise delivered to Agent for filing or recordation,
as of the Closing Date; provided that in respect of any Foreign Subsidiary, this representation shall be subject to the Legal Reservations
(as applicable).
4.4. Binding
Obligations.
(a) Each
Loan Document has been duly executed and delivered by each Loan Party that is a party thereto and is the legally valid and binding obligation
of such Loan Party, enforceable against such Loan Party in accordance with its respective terms, except as enforcement may be limited
by equitable principles or by bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to or limiting creditors' rights
generally; provided that in respect of any Foreign Subsidiary, this representation shall be subject to the Legal Reservations (as
applicable).
4.5. Title
to Assets; No Encumbrances. Each of the Loan Parties and its Subsidiaries has (a) good, sufficient and legal title to (in
the case of fee interests in Real Property), (b) valid leasehold interests in (in the case of leasehold interests in real or personal
property), and (c) good and marketable title to (in the case of all other personal property), all of their respective assets reflected
in their most recent financial statements delivered pursuant to Section 5.1, in each case except for assets disposed of since
the date of such financial statements to the extent permitted hereby; provided that in respect of any Foreign Subsidiary, this
representation shall be subject to the Legal Reservations (as applicable). All of such assets are free and clear of Liens except for Permitted
Liens.
4.6. Litigation.
(a) There
are no actions, suits, or proceedings pending or, to the knowledge of any Loan Party after due inquiry, threatened in writing against
a Loan Party or any of its Subsidiaries that either individually or in the aggregate could reasonably be expected to result in a Material
Adverse Effect.
(b) Schedule 4.6(b) to
the Senior Credit Agreement sets forth a complete and accurate description of each of the actions, suits, or proceedings with asserted
liabilities in excess of, or that could reasonably be expected to result in liabilities in excess of, $5,000,000 that, as of the Senior
Credit Agreement Closing Date, is pending or, to the knowledge of any Loan Party after due inquiry, threatened against a Loan Party or
any of its Subsidiaries.
4.7. Compliance
with Laws. No Loan Party nor any of its Subsidiaries (a) is in violation of any applicable laws, rules, regulations, executive
orders, or codes (including Environmental Laws) that, individually or in the aggregate, could reasonably be expected to result in a Material
Adverse Effect, or (b) is subject to or in default with respect to any final judgments, writs, injunctions, decrees, rules or
regulations of any court or any federal, state, provincial, territorial, municipal or other governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, that, individually or in the aggregate, could reasonably be expected to result
in a Material Adverse Effect.
-47-
4.8. [Reserved].
4.9. [Reserved].
4.10. Employee
Benefits.
(a) Except
as set forth on Schedule 4.10 to the Senior Credit Agreement, no Loan Party, none of their Subsidiaries, nor any of their ERISA
Affiliates maintains or contributes to any Benefit Plan, Canadian Pension Plan or Canadian Defined Benefit Pension Plan.
(b) Each
Loan Party and each of the ERISA Affiliates has complied with ERISA, the IRC and all applicable laws regarding each Employee Benefit Plan,
except as would not reasonably be expected to result in a Material Adverse Effect.
(c) Each
Employee Benefit Plan is, and has been, maintained in compliance with ERISA, the IRC, all applicable laws and the terms of each such Employee
Benefit Plan, except as would not reasonably be expected to result in a Material Adverse Effect.
(d) Each
Employee Benefit Plan that is intended to qualify under Section 401(a) of the IRC has received a favorable determination letter
from the Internal Revenue Service or is entitled to rely on an opinion letter provided under a volume submitted program. To the knowledge
of each Loan Party, nothing has occurred which would prevent, or cause the loss of, such qualification.
(e) No
liability to the PBGC (other than for the payment of current premiums which are not past due) by any Loan Party or ERISA Affiliate has
been incurred or is expected by any Loan Party or ERISA Affiliate to be incurred with respect to any Pension Plan.
(f) No
Notification Event exists, except as would not reasonably be expected to result in a Material Adverse Effect.
(g) No
Loan Party or ERISA Affiliate has provided any security under Section 436 of the IRC.
(h) No
Loan Party or Subsidiary thereof is or has at any time been: (a) an employer (for the purposes of sections 38 to 51 of the Pensions
Act 2004) of an occupational pension scheme which is not a money purchase scheme (both terms as defined in the Pensions Schemes Act 1993)
and which is not fully funded as at the relevant date and such deficit would have a Material Adverse Effect; or (b) "connected"
with or an "associate" (as those terms are used in sections 38 and 43 of the Pensions Act 2004) of such an employer.
-48-
(i) With
respect to any Canadian Pension Plans established after the Closing Date, Borrower will cause each Loan Party to, (a) comply with
all applicable provisions and funding requirements of the Income Tax Act (Canada) and applicable Canadian Pension Benefits Legislation
with respect to all Canadian Pension Plans and make all payments with respect thereto when due, except where the failure to do so could
not reasonably be expected to result in a Material Adverse Effect, (b) operate each Canadian Pension Plan in such a manner that will
not incur any material liability under the Income Tax Act (Canada) and applicable Canadian Pension Benefits Legislation except where the
failure to do so could not reasonably be expected to result in a Material Adverse Effect, and (c) furnish to the Agent upon Agent’s
written request such additional information about any Canadian Pension Plan for which any Loan Party could reasonably expect to incur
any material liability. Except as would not reasonably be expected to have a Material Adverse Effect, all employer or employee payments,
contributions, withholdings or premiums required to be remitted, paid to or in respect of Canadian income tax, vacation pay and statutory
benefit plans that any Loan Party is required to participate in or comply with, including the Canada Pension Plan or Quebec Pension Plan
and plans administered pursuant to applicable workplace safety insurance and employment insurance legislation will be paid or remitted
by each such Person when due in accordance with the terms thereof, any agreements relating thereto and all applicable laws.
4.11. Environmental
Condition. Except as set forth on Schedule 4.11 to the Senior Credit Agreement or as would not, individually or in the
aggregate, have a Material Adverse Effect, (a) to each Loan Party's knowledge, no Loan Party's nor any of its Subsidiaries' properties
or assets has ever been used by a Loan Party or its Subsidiaries, or by previous owners or operations in the disposal of, or to produce,
store, handle, treat, release, or transport, any Hazardous Materials, where such disposal, production, storage, handling, treatment, release
or transport was in violation, in any material respect, of any applicable Environmental Law, (b) to each Loan Party's knowledge after
due inquiry, no Loan Party's nor any of its Subsidiaries' properties or assets has ever been designated or identified in any manner pursuant
to any environmental protection statute as a Hazardous Materials disposal site, (c) no Loan Party nor any of its Subsidiaries has
received notice that a Lien arising under any Environmental Law has attached to any revenues or to any Real Property owned or operated
by a Loan Party or its Subsidiaries, (d) no Loan Party nor any of its Subsidiaries nor any of their respective facilities or operations
is subject to any outstanding written order, consent decree, or settlement agreement with any Person relating to any Environmental Law
or Environmental Liability, and (e) to each Loan Party's knowledge, (i) there are no visible signs of release, spills, discharges,
leaks or disposal (collectively referred to as "Releases") of Hazardous Materials at, upon, under or within any Real
Property or any premises leased by the Loan Parties and/or their respective Subsidiaries, (ii) there are no underground storage tanks
or polychlorinated biphenyls on the Real Property or any premises leased by the Loan Parties and/or their respective Subsidiaries, and
(iii) no Hazardous Materials are present on any Real Property or any premises leased by the Loan Parties and/or their respective
Subsidiaries, excepting such quantities as are handled in accordance with all applicable manufacturer's instructions and governmental
regulations and in proper storage containers and as are necessary for the operation of the commercial business of the Loan Parties and
their respective Subsidiaries or of their tenants.
-49-
4.12. Complete
Disclosure. All factual information taken as a whole (other than forward-looking information and projections and information of
a general economic nature and general information about the industry of any Loan Party or its Subsidiaries) furnished by or on behalf
of a Loan Party or its Subsidiaries in writing to Agent or any Lender (including all information contained in the Schedules incorporated
by reference hereto or in the other Loan Documents or Comtech's Exchange Act filings) for purposes of or in connection with this Agreement
or the other Loan Documents, and all other such factual information taken as a whole (other than forward-looking information and projections
and information of a general economic nature and general information about the industry of any Loan Party or its Subsidiaries) hereafter
furnished by or on behalf of a Loan Party or its Subsidiaries in writing to Agent or any Lender will be, true and accurate, in all material
respects, on the date as of which such information is dated or certified and not incomplete by omitting to state any fact necessary to
make such information (taken as a whole) not misleading in any material respect at such time in light of the circumstances under which
such information was provided. The Projections delivered to the Required Lenders on or about April 30, 2024 represent, and as of
the date on which any other Projections are delivered to Agent, such additional Projections represent, Borrower’s good faith estimate,
on the date such Projections are delivered, of the Loan Parties' and their Subsidiaries' future performance for the periods covered thereby
based upon assumptions believed by Borrower to be reasonable at the time of the delivery thereof to Agent (it being understood that such
Projections are subject to significant uncertainties and contingencies, many of which are beyond the control of the Loan Parties and their
Subsidiaries, and no assurances can be given that such Projections will be realized, and although reflecting Borrower’s good faith
estimate, projections or forecasts based on methods and assumptions which Borrower believed to be reasonable at the time such Projections
were prepared, are not to be viewed as facts, and that actual results during the period or periods covered by the Projections may differ
materially from projected or estimated results). As of the Senior Credit Agreement Closing Date, the information included in the Beneficial
Ownership Certification is true and correct in all respects.
4.13. Patriot
Act, etc.. To the extent applicable, each Loan Party is in compliance, in all material respects, with the (a) Trading
with the Enemy Act, as amended, and each of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle
B, Chapter V, as amended) and any other enabling legislation or executive order relating thereto, and (b) Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act of 2001, as amended) (the "Patriot
Act"), and (c) Canadian AML Laws.
4.14. Payment
of Taxes. Each Loan Party and its Subsidiaries (a) has timely filed or caused to be filed all Tax returns and reports required
to have been filed by it, except to the extent that failure to do so would not reasonably be expected to result in a Material Adverse
Effect, and (b) has paid or caused to be paid all Taxes required to have been paid by it, except to the extent contested through
a Permitted Protest, or to the extent the failure to pay such Taxes, individually or in the aggregate, would not reasonably be expected
to result in a Material Adverse Effect.
4.15. Margin
Stock. Neither any Loan Party nor any of its Subsidiaries owns any Margin Stock or is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of purchasing or carrying any Margin Stock. No part of the proceeds of
the Loans made to Borrower 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 the provisions of Regulation T, U or X of the Board of Governors. Neither
any Loan Party nor any of its Subsidiaries expects to acquire any Margin Stock.
-50-
4.16. Governmental
Regulation. No Loan Party nor any of its Subsidiaries is subject to regulation under the Federal Power Act or the Investment Company
Act of 1940 or under any other federal, state, provincial or territorial statute or regulation which may limit its ability to incur Indebtedness
or which may otherwise render all or any portion of the Obligations unenforceable. No Loan Party nor any of its Subsidiaries is a "registered
investment company" or a company "controlled" by a "registered investment company" or a "principal underwriter"
of a "registered investment company" as such terms are defined in the Investment Company Act of 1940.
4.17. OFAC;
Sanctions; Anti-Corruption Laws; Anti-Money Laundering Laws. No Loan Party or any of its Subsidiaries is in violation of any Sanctions.
No Loan Party nor any of its Subsidiaries nor, to the knowledge of such Loan Party, any director, officer, employee, agent or Affiliate
of such Loan Party or such Subsidiary (a) is a Sanctioned Person or a Sanctioned Entity, (b) has any assets located in Sanctioned
Entities, or (c) derives revenues from investments in, or transactions with Sanctioned Persons or Sanctioned Entities. Each of the
Loan Parties and its Subsidiaries has implemented and maintains in effect policies and procedures designed to ensure compliance with all
Sanctions, Anti-Corruption Laws and Anti-Money Laundering Laws. Each of the Loan Parties and its Subsidiaries, and to the knowledge of
each such Loan Party, each director, officer, employee, agent and Affiliate of each such Loan Party and each such Subsidiary, is in compliance
with all Sanctions, Anti-Corruption Laws and Anti-Money Laundering Laws. No proceeds of any Loan made hereunder will be used to fund any
operations in, finance any investments or activities in, or make any payments to, a Sanctioned Person or a Sanctioned Entity, or otherwise
used in any manner that would result in a violation of any Sanction, Anti-Corruption Law or Anti-Money Laundering Law by any Person (including
any Lender or other individual or entity participating in any transaction). Notwithstanding the foregoing, this section shall not be made
by nor apply to any Person that is registered or created under the laws of Canada or any province or territory thereof and that carries
on business in whole or in part in Canada within the meaning of Section 2 of the Foreign Extraterritorial Measures (United States)
Order, 1992 passed under the Foreign Extraterritorial Measures Act (Canada) in so far as this section would result in a violation
of or conflict with the Foreign Extraterritorial Measures Act (Canada) or any similar law.
4.18. Employee
and Labor Matters. There is (i) no unfair labor practice complaint pending or, to the knowledge of any Loan Party after due
inquiry, threatened against any Loan Party or its Subsidiaries before any Governmental Authority and no grievance or arbitration proceeding
pending or threatened against any Loan Party or its Subsidiaries which arises out of or under any collective bargaining agreement and
that could reasonably be expected to result in a material liability, (ii) no strike, labor dispute, slowdown, stoppage or similar
action or grievance pending or threatened in writing against any Loan Party or its Subsidiaries that could reasonably be expected to result
in a material liability, or (iii) to the knowledge of any Loan Party after due inquiry, no union representation question existing
with respect to the employees of any Loan Party or its Subsidiaries and no union organizing activity taking place with respect to any
of the employees of any Loan Party or its Subsidiaries. None of any Loan Party or its Subsidiaries has incurred any liability or obligation
under the Worker Adjustment and Retraining Notification Act or similar state law, which remains unpaid or unsatisfied. The hours worked
and payments made to employees of each Loan Party and its Subsidiaries have not been in violation of the Fair Labor Standards Act or any
other applicable legal requirements, except to the extent such violations could not, individually or in the aggregate, reasonably be expected
to result in a Material Adverse Effect. All material payments due from any Loan Party or its Subsidiaries 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 Comtech, except where the failure
to do so could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
-51-
4.19. Leases.
Each Loan Party and its Subsidiaries enjoy peaceful and undisturbed possession under all leases material to their business and to which
they are parties or under which they are operating, and, subject to Permitted Protests, all of such material leases are valid and subsisting
and no material default by the applicable Loan Party or its Subsidiaries exists under any of them.
4.20. Material
Contracts. Set forth on Schedule 4.28 of the Senior Credit Agreement (as such Schedule may be updated from time to time
in accordance with the Senior Credit Agreement) is a list of the Material Contracts of each Loan Party and its Subsidiaries as of the
most recent date on which Comtech provided a Compliance Certificate to the Senior Credit Agreement Agent (as such Schedule may be updated
from time to time in accordance with the Senior Credit Agreement). Except for matters which, either individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect, each Material Contract (other than those that have expired at
the end of their normal terms) (a) is in full force and effect and is binding upon and enforceable against the applicable Loan Party
or its Subsidiary and, to each Loan Party's knowledge, each other Person that is a party thereto in accordance with its terms, (b) has
not been otherwise amended or modified (other than amendments or modifications permitted by Section 6.6(b)), and (c) is
not in default due to the action or inaction of the applicable Loan Party or its Subsidiary.
5. AFFIRMATIVE COVENANTS.
Borrower covenants and agrees
that, until the payment in full of the Obligations:
5.1. Financial
Statements, Reports, Certificates. Borrower (a) will deliver to Agent, for distribution to each Lender, each of the financial
statements, reports, and other items set forth on Schedule 5.1 to the Senior Credit Agreement no later than the times specified
therein, (b) agree that no Subsidiary of a Loan Party will have a fiscal year different from that of Comtech, (c) agree to maintain
a system of accounting that enables Borrower to produce financial statements in accordance with GAAP, and (d) agree that they will,
and will cause each other Loan Party to, (i) keep a reporting system that shows all additions, sales, claims, returns, and allowances
with respect to their and their Subsidiaries' sales, and (ii) maintain their billing systems and practices substantially as in effect
as of the Senior Credit Agreement Closing Date and shall only make material modifications thereto with notice to Agent. Notwithstanding
anything to the contrary herein, Borrower shall be deemed to have complied with this Section 5.1 if Borrower provides the
Agent a copy of any documents such Borrower delivered to the Senior Credit Agreement Agent pursuant to Section 5.1 of the Senior
Credit Agreement.
-52-
5.2. Reporting.
Borrower will deliver to Agent, for distribution to each Lender, each of the reports set forth on Schedule 5.2 to the Senior Credit
Agreement at the times specified therein. Notwithstanding anything to the contrary herein, Borrower shall be deemed to have complied with
this Section 5.2 if Borrower provides the Agent a copy of any documents such Borrower delivered to the Senior Credit Agreement
Agent pursuant to Section 5.2 of the Senior Credit Agreement. Concurrently with the delivery of each Compliance Certificate (as defined
in the Senior Credit Agreement) to the Agent, the Borrower shall deliver to the Agent (who shall promptly deliver to the Amendment No. 2
Priority Term Loan Lenders) a certificate, signed by the chief financial officer or treasurer of the Borrower, that certifies to the Agent
and the Amendment No. 2 Priority Term Loan Lenders the applicable Interest Rate then in effect and the Interest Rate(s) that
were in effect (and the duration of effect of each such Interest Rate) during the most recently completed fiscal quarter (each such certificate,
an “Interest Rate Certificate”). The Agent may (absent the Agent’s receipt of any written objection, which may
be via email, from an Amendment No. 2 Priority Term Loan Lender within ten (10) Business Days after the date the Agent delivers
such Interest Rate Certificate to the Amendment No. 2 Priority Term Loan Lenders) conclusively rely on each delivered Interest Rate
Certificate without investigation and shall have no liability should an Interest Rate Certificate not be delivered to the Agent. To the
extent the Agent does not receive an Interest Rate Certificate within the time period proscribed by this Section 5.2, the
Agent shall promptly notify the Amendment No. 2 Priority Term Loan Lenders of the Borrower’s failure to deliver such Interest
Rate Certificate.
5.3. Existence.
Except as otherwise permitted under Section 6.3 or Section 6.4, each Loan Party will, and will cause each of its
Subsidiaries to, at all times preserve and keep in full force and effect such Person's valid existence and good standing in its jurisdiction
of organization and, except as could not reasonably be expected to result in a Material Adverse Effect, good standing with respect to
all other jurisdictions in which it is qualified to do business and any rights, franchises, permits, licenses, accreditations, authorizations,
or other approvals material to their businesses.
5.4. Maintenance
of Properties. Each Loan Party will, and will cause each of its Subsidiaries to, maintain and preserve all of its assets that
are necessary for the proper conduct of its business in good working order and condition, ordinary wear, tear, casualty, and condemnation
and Permitted Dispositions excepted.
5.5. Taxes.
Each Loan Party will, and will cause each of its Subsidiaries to, pay its Tax liabilities, before the same shall become delinquent or
in default, except where (i) such Tax is the subject of a Permitted Protest or (ii) the failure to pay such Tax would not reasonably
be expected to result in a Material Adverse Effect.
5.6. Insurance.
(a) Each
Loan Party will, and will cause each of its Subsidiaries to, at Borrower’s expense, maintain insurance respecting each of each Loan
Party's and its Subsidiaries' assets wherever located, covering liabilities, losses or damages as are customarily insured against by other
Persons engaged in same or similar businesses and similarly situated and located. All such policies of insurance shall be with financially
sound and reputable insurance companies reasonably acceptable to the Required Lenders (it being agreed that the Loan Parties' existing
insurance providers as set forth in the certificates of insurance delivered in connection with the Senior Credit Agreement shall be deemed
to be reasonably acceptable to the Required Lenders) and in such amounts as is carried generally in accordance with sound business practice
by companies in similar businesses similarly situated and located and, in any event, in amount, adequacy, and scope reasonably satisfactory
to the Required Lenders (it being agreed that the amount, adequacy, and scope of the policies of insurance of Borrower in effect as of
the Senior Credit Agreement Closing Date are acceptable to the Required Lenders).
-53-
5.7. Additional
Information.(a) Each Loan Party shall promptly provide to
the Agent and the Lenders such information and data with respect to the Loan Parties (including, without limitation, the per annum rate
at which interest accrues on the Loans (as defined in the Senior Credit Agreement), including, without limitation, whether any default
interest applies thereto) as from time to time may be reasonably requested in writing (which may be via email) by the Agent or any Lender.
5.8. Compliance
with Laws. Each Loan Party will, and will cause each of its Subsidiaries to, comply with the requirements of all applicable laws,
rules, regulations, and orders of any Governmental Authority, other than laws, rules, regulations, and orders the non-compliance with
which, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
5.9. Environmental.
Except as would not, in each case, be material to any Loan Party:
(a) Each
Loan Party will, and will cause each of its Subsidiaries to, keep any property either owned or operated by any Loan Party or its Subsidiaries
free of any Environmental Liens or post bonds or other financial assurances sufficient to satisfy the obligations or liability evidenced
by such Environmental Liens.
(b) Each
Loan Party will, and will cause each of its Subsidiaries to, ensure that the Real Property, to the extent controlled by any Loan Party,
and all operations and businesses conducted by any Loan Party thereon remains in material compliance with all Environmental Laws and such
Loan Party will not, and will cause its Subsidiaries not to, place or permit to be placed any Hazardous Materials on any Real Property
except as permitted by applicable law or appropriate Governmental Authorities.
(c) Each
Loan Party will, and will cause each of its Subsidiaries to, (i) employ in connection with the use of any Real Property appropriate
technology necessary to maintain material compliance with any applicable Environmental Laws and (ii) dispose of any and all Hazardous
Materials generated at the Real Property only at facilities and with carriers that maintain valid permits under any applicable Environmental
Laws. The Loan Parties shall, and shall cause their respective Subsidiaries to, use reasonable best efforts to obtain certificates of
disposal, such as hazardous waste manifest receipts, from all treatment, transport, storage or disposal facilities or operators employed
by such Loan Parties or their respective Subsidiaries in connection with the transport or disposal of any Hazardous Materials generated
at any Real Property.
(d) Each
Loan Party will, and will cause each of its Subsidiaries to, promptly notify Agent of any Release of which any Loan Party has knowledge
of a Hazardous Material in any reportable quantity from or onto any Real Property owned or operated by any Loan Party or its Subsidiaries
and take any Remedial Actions required of such Loan Party to abate said release or otherwise to come into compliance, in all material
respects, with applicable Environmental Law.
-54-
(e) Each
Loan Party will, and will cause each of its Subsidiaries to, promptly, but in any event within five (5) Business Days of its receipt
thereof, provide Agent with written notice of any of the following: (i) notice that an Environmental Lien has been filed against
any of the real or personal property of a Loan Party or its Subsidiaries, (ii) commencement of any Environmental Action or written
notice that an Environmental Action will be filed against a Loan Party or its Subsidiaries, and (iii) written notice of a violation,
citation, or other administrative order from a Governmental Authority.
5.10. Disclosure
Updates. Each Loan Party will, promptly and in no event later than five (5) Business Days after obtaining knowledge thereof,
notify Agent if any written information, exhibit, or report furnished to Agent or the Lenders contained, at the time it was furnished,
any untrue statement of a material fact or omitted to state any material fact necessary to make the statements contained therein not misleading
in light of the circumstances in which made. The foregoing to the contrary notwithstanding, any notification pursuant to the foregoing
provision will not cure or remedy the effect of the prior untrue statement of a material fact or omission of any material fact nor shall
any such notification have the effect of amending or modifying this Agreement or any of the Schedules incorporated by reference hereto.
5.11. Additional
Guarantors. The Borrower will promptly cause any Subsidiary that is a “Guarantor” under and as defined in the Senior
Credit Agreement to execute and deliver a joinder to this Agreement as a Guarantor hereunder.
5.12. WeeklyMonthly
Calls. If requested by the Lenders, appropriate members of management of the Borrower will participate in weeklymonthly
conference calls upon reasonable advance notice and at mutually agreed times pursuant to which management will deliver updates and reports
including but not limited to (a) the Loan Parties' liquidity, (b) the Loan Parties' most recent 26-week cash flow forecast and
variance analysis, including risks to the forecast and updates on the status of significant accounts receivable, (c) current accounts
receivable and payable agings of the Loan Parties including top 20 consolidated accounts and a report on inventory balances by business,
(d) Loan Parties' operations, including management’s plans for operational rationalization, on-going strategic alternatives
processes and the financial performance of each business unit, (e) the contract procurement status of the Loan Parties’ key
customers and (f) updates on the implementation and the effectiveness and results of the Transformation Plan. In addition, if requested
by the Lenders, the Borrower agrees to keep the Lenders reasonably informed of the status of any calls provided to the lenders pursuant
to Section 5.21 of the Senior Credit Agreement.
5.13. Transformation
Plan.
(a) On
or prior to August 11, 2025 (or such later date as the Required Lenders (or the Agent acting at the direction of the Required Lenders)
may agree in writing in their sole discretion), and thereafter as reasonably requested by the Required Lenders, the management team of
the Borrower shall provide the Agent (who shall promptly distribute to the Lenders) with a detailed analysis of the selling, general and
administrative expenses of the Loan Parties, broken out in detail by business unit and by Loan Party, and such other information related
to the Transformation Plan as reasonably requested by the Required Lenders (or the Agent acting at the direction of the Required Lenders).
-55-
(b) The
management team of the Borrower shall consult with, and consider, in good faith, any recommendations provided by, the Lenders in connection
with the the Transformation Plan (it being understood and agreed that the ultimate discretion with respect to the Transformation Plan,
including the initiatives of the Transformation Plan and the implementation thereof, shall be retained by Borrower).
5.14. Management
Incentive Plans.5.15.
After the Amendment No. 2 Effective Date,
the Borrower will adopt management incentive and retention arrangements for its key personnel in connection with the contemplation of
its strategic alternatives.
5.15. [Reserved].5.16.
5.16. OFAC;
Sanctions; Anti-Corruption Laws; Anti-Money Laundering Laws. Each Loan Party will, and will cause each of its Subsidiaries to
comply with all Sanctions, Anti-Corruption Laws and Anti-Money Laundering Laws. Each of the Loan Parties and its Subsidiaries shall implement
and maintain in effect policies and procedures designed to ensure compliance by the Loan Parties and their Subsidiaries and their respective
directors, officers, employees, agents and Affiliates with all Sanctions, Anti-Corruption Laws and Anti-Money Laundering Laws. Notwithstanding
the foregoing, this section shall not be made by nor apply to any Person that is registered or created under the laws of Canada or any
province or territory thereof and that carries on business in whole or in part in Canada within the meaning of Section 2 of the Foreign
Extraterritorial Measures (United States) Order, 1992 passed under the Foreign Extraterritorial Measures Act (Canada) in so far
as this section would result in a violation of or conflict with the Foreign Extraterritorial Measures Act (Canada) or any similar
law.
5.17. Material
Contracts. The Borrower will provide Agent with copies any documents provided to the Senior Credit Agreement Agent pursuant to
Section 5.16 of the Senior Credit Agreement.
5.18. Compliance
with ERISA and the IRC. In addition to and without limiting the generality of Section 5.8, (a) comply in all
material respects with applicable provisions of ERISA and the IRC with respect to all Employee Benefit Plans, (b) without the prior
written consent of Agent and the Required Lenders, not take any action or fail to take action the result of which could result in a Loan
Party or ERISA Affiliate incurring a liability to the PBGC or to a Multiemployer Plan (other than to pay contributions or premiums payable
in the ordinary course) that, in the aggregate, reasonably could be expected to result in a Material Adverse Effect, (c) allow any
facts or circumstances to exist with respect to one or more Employee Benefit Plans that, in the aggregate, reasonably could be expected
to result in a Material Adverse Effect, (d) [reserved], (e) operate each Employee Benefit Plan in such a manner that will not
incur any material tax liability under the IRC (including Section 4980B of the IRC), and (f) furnish to Agent upon Agent's written
request such additional information about any Employee Benefit Plan for which any Loan Party or ERISA Affiliate could reasonably expect
to incur any material liability. With respect to each Pension Plan (other than a Multiemployer Plan) except as could not reasonably be
expected to result in liability to the Loan Parties that would result in a Material Adverse Effect, the Loan Parties and the ERISA Affiliates
shall (i) satisfy in full and in a timely manner, without incurring any late payment or underpayment charge or penalty and without
giving rise to any Lien, all of the contribution and funding requirements of the IRC and of ERISA, and (ii) pay, or cause to be paid,
to the PBGC in a timely manner, without incurring any late payment or underpayment charge or penalty, all premiums required pursuant to
ERISA.
-56-
6. NEGATIVE COVENANTS.
Borrower covenants and agrees
that, until the payment in full of the Obligations:
6.1. Indebtedness.
Each Loan Party will not, and will not permit any of its Subsidiaries to, create, incur, assume, suffer to exist, guarantee, or otherwise
become or remain, directly or indirectly, liable with respect to any Indebtedness, except for Permitted Indebtedness.
6.2. Liens.
Each Loan Party will not, and will not permit any of its Subsidiaries to, create, incur, assume, or suffer to exist, directly or indirectly,
any Lien on or with respect to any of its assets, of any kind, whether now owned or hereafter acquired, or any income or profits therefrom,
except for Permitted Liens.
6.3. Restrictions
on Fundamental Changes. Each Loan Party will not, and will not permit any of its Subsidiaries to,
(a) Other
than in order to consummate a Permitted Acquisition, enter into any merger, amalgamation, consolidation, reorganization, or recapitalization,
or reclassify its Equity Interests, except for (i) any merger or amalgamation between Loan Parties; provided, that the Borrower
must be the surviving entity of any such merger or amalgamation to which it is a party and no merger may occur between Comtech and any
other Loan Parties, (ii) any merger or amalgamation between a Loan Party and a Subsidiary of such Loan Party that is not a Loan Party
so long as such Loan Party is the surviving entity of any such merger or amalgamation, (iii) any merger or amalgamation between Subsidiaries
of any Loan Party that are not Loan Parties and (iv) any merger, consolidation, reorganization, or recapitalization, or reclassification
of its Equity Interests carried out in order to consummate a Permitted Disposition; provided, that in no event shall any Loan Party
merge or amalgamate with any other Person other than a US Loan Party or other Loan Party organized in the same jurisdiction as such Loan
Party unless, in each case, such Loan Party is the surviving entity,
(b) liquidate,
wind up, or dissolve itself (or suffer any liquidation or dissolution), except for (i) the liquidation or dissolution of non-operating
Subsidiaries of any Loan Party with nominal assets and nominal liabilities, (ii) the liquidation or dissolution of a Loan Party (other
than the Borrower) or any of its wholly-owned Subsidiaries (other than the Borrower) so long as all of the assets (including any interest
in any Equity Interests) of such liquidating or dissolving Loan Party or Subsidiary are transferred to a Loan Party that is not liquidating
or dissolving, or (iii) the liquidation or dissolution of a Subsidiary of any Loan Party that is not a Loan Party so long as all
of the assets of such liquidating or dissolving Subsidiary are transferred to a Subsidiary of a Loan Party that is not liquidating or
dissolving, or
(c) suspend
or cease operating a substantial portion of its or their business, except as permitted pursuant to clauses (a) or (b) above
or in connection with a transaction permitted under Section 6.4.
-57-
6.4. Disposal
of Assets. Other than Permitted Dispositions or transactions expressly permitted by Sections 6.3 or 6.9, each Loan
Party will not, and will not permit any of its Subsidiaries to, convey, sell, lease, license, assign, transfer, or otherwise dispose of
any of its or their assets (including by an allocation of assets among newly divided limited liability companies pursuant to a "plan
of division").
6.5. Nature
of Business. Each Loan Party will not, and will not permit any of its Subsidiaries to, make any change in the nature of its or
their business as described in Schedule 6.5 to the Senior Credit Agreement or acquire any properties or assets that are not
reasonably related to the conduct of such business activities; provided, that the foregoing shall not prevent any Loan Party and
its Subsidiaries from engaging in any business that is reasonably related or ancillary to its or their business.
6.6. Prepayments,
Payments of Certain Indebtedness and Amendments. Each Loan Party will not, and will not permit any of its Subsidiaries to,
(a) Except
in connection with Refinancing Indebtedness permitted by Section 6.1,
(i) optionally
prepay, redeem, defease, purchase, or otherwise acquire or satisfy any Indebtedness of any Loan Party or its Subsidiaries, other than
(A) the Obligations in accordance with this Agreement, or (B) Permitted Intercompany Advances or (C) the Senior Credit
Agreement Obligations, or
(ii) make
any payment on account of Indebtedness that has been contractually subordinated in right of payment to the Obligations if such payment
is not permitted at such time under the subordination terms and conditions.
(b) Directly
or indirectly, amend, modify, or change any of the terms or provisions of:
(i) any
agreement, instrument, document, indenture, or other writing evidencing or concerning Permitted Indebtedness other than (A) the Obligations
in accordance with this Agreement, (B) Permitted Intercompany Advances, (C) Indebtedness permitted under clauses (c), (h), (j),
(k) and (t) of the definition of Permitted Indebtedness,
(ii) the
Governing Documents of any Loan Party or any of its Subsidiaries if the effect thereof, either individually or in the aggregate, could
reasonably be expected to be materially adverse to the interests of the Lenders,
(iii) the
Specified Preferred Equity Documents if the effect thereof could reasonably be expected to be materially adverse to the interests of the
Lenders, or
(iv) any
Material Contract except to the extent that such amendment, modification, or change would not, individually or in the aggregate, reasonably
be expected to be materially adverse to the interests of the Lenders.
-58-
6.7. Restricted
Payments. Each Loan Party will not, and will not permit any of its Subsidiaries to, make any Restricted Payment; provided,
that so long as it is permitted by law,
(a) so
long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, the Borrower and its Subsidiaries
may make distributions to Comtech for the sole purpose of allowing Comtech to, and Comtech shall use the proceeds thereof solely to make
distributions to former employees, officers, or directors of Comtech (or any spouses, ex-spouses, or estates of any of the foregoing)
on account of redemptions of Equity Interests of Comtech held by such Persons; provided, that the aggregate amount of such redemptions
made by Comtech during the term of this Agreement plus the amount of Indebtedness outstanding under clause (l) of the definition
of Permitted Indebtedness, does not exceed $1,200,000 in the aggregate,
(b) so
long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, Comtech may make distributions
to former employees, officers, or directors of Comtech (or any spouses, ex-spouses, or estates of any of the foregoing), solely in the
form of forgiveness of Indebtedness of such Persons owing to Comtech on account of repurchases of the Equity Interests of Comtech held
by such Persons; provided, that such Indebtedness was incurred by such Persons solely to acquire Equity Interests of Comtech,
(c) Comtech's
Subsidiaries may make distributions to Comtech (i) in an amount sufficient to pay franchise taxes and other fees required to maintain
the legal existence of the Loan Parties and their Subsidiaries to the extent actually used by Comtech to pay such taxes, costs and expenses,
and (ii) in an amount sufficient to pay out-of-pocket legal, accounting and filing costs and other expenses in the nature of overhead
in the ordinary course of business of the Loan Parties and their Subsidiaries, in the case of clause (ii) in an aggregate amount
not to exceed $1,200,000 in any fiscal year,
(d) Comtech
may make Restricted Payments consisting of in-kind dividends in respect of the Specified Preferred Equity made in accordance with Section 5
of the applicable Specified Preferred Equity COD,
(e) [reserved],
(f) any
Subsidiary may declare and pay dividends or make other distributions with respect to its Equity Interests, or make other Restricted Payments
in respect of its Equity Interests, in each case ratably to the holders of such Equity Interests (or, if not ratably, on a basis more
favorable to the Loan Parties),
(g) for
any taxable period for which the Borrowers or any of their respective Subsidiaries is a member (or disregarded as an entity that is separate
from such a member for applicable income or similar tax purposes) of a consolidated or similar income or similar tax group of which a
direct or indirect parent of any Borrower (other than Comtech) is the common parent or for which a Borrower (other than Comtech) is treated
as an entity that is disregarded as separate from a corporate parent for applicable income or similar Tax purposes, distributions to its
direct or indirect owner to pay the portion of the income Taxes of such Tax group or such corporate parent, as applicable, that are attributable
to the income of Borrower and/or its Subsidiaries, as applicable, in an amount not to exceed the amount of any U.S. federal, state, local
and/or non-U.S. income Taxes that Borrowers and/or their respective Subsidiaries would have paid for such taxable period had such entities
been a stand-alone corporate taxpayer or a stand-alone corporate group, provided that Comtech shall not be permitted to make any such
distributions, and
-59-
(h) Comtech
may make any Restricted Payments so long as (A) no Default of Event of Default has occurred and is continuing or would result therefrom,
(B) Liquidity is at least $28,000,000, calculated on a pro forma basis after giving effect to such Restricted Payment, and (C) the
Net Leverage Ratio (as defined in the Senior Credit Agreement) (as of the last day of the period of four consecutive fiscal quarters of
the Borrower most recently ended for which financial statements have been delivered pursuant to Schedule 5.1(a) or 5.1(e)) is less
than 2.10 to 1.00, calculated on a pro forma basis after giving effect to such Restricted Payment.
6.8. Accounting
Methods. Each Loan Party will not, and will not permit any of its Subsidiaries to, modify or change its fiscal year or its method
of accounting (other than as may be required to conform to GAAP).
6.9. Investments.
Each Loan Party will not, and will not permit any of its Subsidiaries to, directly or indirectly, make or acquire any Investment or incur
any liabilities (including contingent obligations) for or in connection with any Investment except for Permitted Investments.
6.10. Transactions
with Affiliates. Each Loan Party will not, and will not permit any of its Subsidiaries to, directly or indirectly, enter into
or permit to exist any transaction with any Affiliate of any Loan Party or any of its Subsidiaries except for:
(a) transactions
(other than the payment of management, consulting, monitoring, or advisory fees) between such Loan Party or its Subsidiaries, on the one
hand, and any Affiliate of such Loan Party or its Subsidiaries, on the other hand, so long as such transactions (i) are fully disclosed
to Agent prior to the consummation thereof, if they involve one or more payments by such Loan Party or its Subsidiaries in excess of $2,400,000
for any single transaction or series of related transactions, and (ii) are no less favorable, taken as a whole, to such Loan Party
or its Subsidiaries, as applicable, than would be obtained in an arm's length transaction with a non-Affiliate,
(b) any
indemnity provided for the benefit of directors (or comparable managers) of a Loan Party or one of its Subsidiaries so long as it has
been approved by such Loan Party's or such Subsidiary's board of directors (or comparable governing body) in accordance with applicable
law,
(c) the
payment of reasonable compensation, severance, or employee benefit arrangements to employees, officers, and outside directors (or similar
governing body) of a Loan Party or one of its Subsidiaries in the ordinary course of business and consistent with industry practice so
long as it has been approved by such Loan Party's or such Subsidiary's board of directors (or comparable governing body) in accordance
with applicable law,
(d) (i) transactions
solely among the Loan Parties, and (ii) transactions solely among Subsidiaries of Loan Parties that are not Loan Parties,
-60-
(e) transactions
with Permitted Holders pursuant to any agreement or arrangement set forth in the Specified Preferred Equity Documents (including the issuance
or exchange of additional Equity Interests (other than Disqualified Equity Interests) thereunder,
(f) transactions
permitted by Section 6.3, Section 6.7, or Section 6.9,
(g) agreements
for the non-exclusive licensing of Intellectual Property, or distribution of products, in each case, among the Loan Parties and their
Subsidiaries for the purpose of the counterparty thereof operating its business, and agreements for the assignment of Intellectual Property
from any Loan Party or any of its Subsidiaries to any Loan Party,
(h) the
entering into of any Tax sharing agreement by or among entities that are members of the same consolidated, combined, unitary or similar
tax group, provided that payments thereunder are not restricted by Section 6.7, and
(i) issuances
of securities or other payments, awards or grants in cash, securities or otherwise to employees, officers or directors of the Loan Parties
or their Subsidiaries pursuant to, employment agreements, stock options and stock ownership plans held by such employees officers or directors
and not otherwise prohibited by this Agreement.
6.11. Use
of Proceeds. Each Loan Party will not, and will not permit any of its Subsidiaries to, use the proceeds of any Loan made hereunder
for any purpose other than consistent with the terms and conditions hereof, for their lawful and permitted purposes; provided that
(x) no part of the proceeds of the Loans will be used to purchase or carry any such Margin Stock or to extend credit to others for
the purpose of purchasing or carrying any such Margin Stock or for any purpose that violates the provisions of Regulation T, U or X of
the Board of Governors, (y) no part of the proceeds of any Loan will be used, directly or, knowingly, indirectly, to make any payments
to a Sanctioned Entity or a Sanctioned Person, to fund any investments, loans or contributions in, or otherwise make such proceeds available
to, a Sanctioned Entity or a Sanctioned Person, to fund any operations, activities or business of a Sanctioned Entity or a Sanctioned
Person, or in any other manner that would result in a violation of Sanctions by any Person, and (z) that no part of the proceeds
of any Loan will be used, directly or, knowingly, indirectly, in furtherance of an offer, payment, promise to pay, or authorization of
the payment or giving of money, or anything else of value, to any Person in violation of any Sanctions, Anti-Corruption Laws or Anti-Money
Laundering Laws. Notwithstanding the foregoing, this section shall not be made by nor apply to any Person that is registered or created
under the laws of Canada or any province or territory thereof and that carries on business in whole or in part in Canada within the meaning
of Section 2 of the Foreign Extraterritorial Measures (United States) Order, 1992 passed under the Foreign Extraterritorial Measures
Act (Canada) in so far as this section would result in a violation of or conflict with the Foreign Extraterritorial Measures Act
(Canada) or any similar law. Borrower will use the proceeds of the Amendment No. 1 Term Loans borrowed on the Amendment No. 1
Effective Date to consummate the Amendment No. 2 Paydowns and Commitment Reduction (as defined in Amendment No. 2 to Senior
Credit Agreement). Borrower will use the proceeds of the Amendment No. 2 Priority Term Loans borrowed on the Amendment No. 2
Effective Date to consummate the Amendment No. 3 Paydowns and Commitment Reduction (as defined in Amendment No. 3 to Senior
Credit Agreement).
-61-
6.12. Limitation
on Issuance of Equity Interests. Except for the issuance or sale of Qualified Equity Interests by Comtech, Borrower will not,
and will not permit any of its Subsidiaries to, issue or sell any of its Equity Interests (other than (a) Equity Interests issued
by a Subsidiary of a Loan Party to its direct parent company or (b) Equity Interests issued by a joint venture or other non-wholly-owned
Subsidiary pursuant to a transaction with respect to such Equity Interests permitted by Section 6.4 or Section 6.9).
6.13. Inventory
with Bailees. Borrower will not, and will not permit any of its Subsidiaries to, store its Inventory at any time with a bailee,
warehouseman, or similar party except as set forth on Schedule 4.24 (as such Schedule may be amended in accordance with Section 5.14
of the Senior Credit Agreement).
6.14. Sale
Leaseback Transactions. Borrower will not, nor will it permit any Subsidiary to, enter into any arrangement, directly or indirectly,
whereby it shall sell or transfer any property, real or personal, used or useful in its business, whether now owned or hereafter acquired,
and thereafter rent or lease such property or other property that it intends to use for substantially the same purpose or purposes as
the property sold or transferred, except for any such sale of any fixed or capital assets by the Borrower or any Subsidiary that is made
for cash consideration in an amount not less than the fair value of such fixed or capital asset and is consummated within 180 days after
Borrower or such Subsidiary acquires or completes the construction of such fixed or capital asset; provided that, if such sale
and leaseback results in a Capitalized Lease Obligation, such Capitalized Lease Obligation is permitted by Section 6.1 and
any Lien made the subject of such Capitalized Lease Obligation is permitted by Section 6.2.
6.15. Employee
Benefits. Borrower will not, and will not permit any of its Subsidiaries to,
(a) Terminate,
or permit any ERISA Affiliate to terminate, any Pension Plan in a manner, or take any other action with respect to any Pension Plan, which
could reasonably be expected to result in any liability of any Loan Party or ERISA Affiliate to the PBGC.
(b) [reserved].
(c) Permit
to exist, or allow any ERISA Affiliate to permit to exist, any accumulated funding deficiency within the meaning of Section 302 of
ERISA or Section 412 of the IRC, whether or not waived, with respect to any Pension Plan or all Pension Plans in the aggregate, that
in either case would reasonably be expected to have a Material Adverse Effect.
(d) [reserved].
(e) Contribute
to or assume an obligation to contribute to, or permit any ERISA Affiliate to contribute to or assume an obligation to contribute to,
any Multiemployer Plan not set forth on Schedule 4.10 to the Senior Credit Agreement without advance notice to the Agent.
(f) Amend,
or permit any ERISA Affiliate to amend, a Pension Plan resulting in a material increase in current liability such that a Loan Party or
ERISA Affiliate is required to provide security to such Pension Plan under the IRC that would reasonably be expected to have a Material
Adverse Effect.
-62-
6.16. Non-Loan
Party Subsidiaries. Borrower will not permit any of its Subsidiaries that are not Loan Parties to own, or have an exclusive license
to use, any Intellectual Property that is material to the business of the Loan Parties.
6.17. Canadian
Pension Matters. Borrower will not permit any Canadian Loan Party or any of its Subsidiaries organized under the federal laws
of Canada or any province or territory thereto to:
(a) maintain,
sponsor, administer, contribute to, participate in or assume or incur any liability in respect of any Canadian Defined Benefit Pension
Plan or amalgamate with any Person if such Person, sponsors, administers, contributes to, participates in or has any liability in respect
of, any Canadian Defined Benefit Pension Plan; or
(b) terminate
any Canadian Pension Plan in a manner, or take any other action with respect to any Canadian Pension Plan, which could reasonably be expected
to result in a Material Adverse Effect.
6.18. Anti-Layering.
Neither Comtech nor any Subsidiary of Comtech will create or incur any Indebtedness which is subordinated or junior in right of payment
to any other Indebtedness of the Loan Parties, unless such Indebtedness is also subordinated or junior in right of payment, in the same
manner and to the same extent, to the Obligations.
6.19. Tax
Classification. No Loan Party shall, without the Agent's prior consent, change its classification for U.S. federal income tax
purposes (e.g., C corporation, partnership, disregarded entity, etc.) if such change would result in a Material Adverse Effect.
7. FINANCIAL COVENANTS.1
Solely effective immediately
after (1) in the case of the succeeding clauses (a), (b) and (c), the later of (i) January 31, 2027 and (ii) the
Discharge of Senior Credit Agreement Obligations and (2) in the case of the succeeding clause (d), the Discharge of Senior Credit
Agreement Obligations, the Borrower, in each case, covenants and agrees that, until the termination of all of the Term Loan Commitments
and the payment in full of the Obligations, Borrower will:
(a) Fixed
Charge Coverage Ratio. Have a Fixed Charge Coverage Ratio, measured on a quarter-end basis, of at least the required amount set
forth in the following table for the applicable period set forth opposite thereto:
Applicable Ratio
Applicable Period
1.04:1.0
For the 4 quarter period ending January 31, 2027, and for the 4 quarter period ending April 30, 2027
1.08:1.0
For the 4 quarter period ending July 31, 2027, and for the 4 quarter period ending on the last day of each fiscal quarter thereafter
1 NTD: financial covenant levels under
further consideration.
-63-
(b) Net
Leverage Ratio. Have a Net Leverage Ratio, measured on a quarter-end basis, of not greater than the applicable ratio set forth
in the following table for the applicable date set forth opposite thereto:
Applicable Ratio
Applicable Date
3.30:1.0
January 31, 2027
3.30:1.0
April 30, 2027
3.18:1.0
July 31, 2027, and the last day of each fiscal quarter thereafter
(c) Minimum
EBITDA. Maintain TTM EBITDA, measured on a quarter-end basis, of at least the required amount set forth in the following table
for the applicable period set forth opposite thereto:
Applicable Amount
Applicable Period
$26,000,000
For the 4 quarter period ending January 31, 2027
$28,000,000
For the 4 quarter period ending April 30, 2027
$30,000,000
For the 4 quarter period ending July 31, 2027
$32,000,000
For the 4 quarter period ending October 31, 2027, and for the 4 quarter period ending on the last day of each fiscal quarter thereafter
(d) Minimum
Average Liquidity: Maintain Average Liquidity for the immediately preceding fiscal quarter period, starting on the fiscal quarter
period ending April 30, 2025, measured on the last day of each fiscal quarter for such fiscal quarter, of at least $15,000,000.
8. EVENTS OF DEFAULT.
Any one or more of the following
events shall constitute an event of default (each, an "Event of Default") under this Agreement:
8.1. Payments.
If Borrower fails to pay when due and payable, or when declared due and payable, all or any portion of the principal of the Loans (including
any PIK Interest) or the Make-Whole Amount;
-64-
8.2. Covenants.
If any Loan Party or any of its Subsidiaries:
(a) fails
to perform or observe any covenant or other agreement contained in any of (i) Sections 5.1, 5.2, 5.3 (solely
if Comtech or any other Loan Party is not in existence or good standing in its jurisdiction of organization, as applicable), 5.6,
5.8, 5.10, 5.11 or 5.13 of this Agreement, (ii) Section 6 of this Agreement and (iii) Section 7
of this Agreement;
(b) fails
to perform or observe any covenant or other agreement contained in any of Sections 5.3 (other than if Comtech or any other Loan
Party is not in existence or good standing in its jurisdiction of organization, as applicable), 5.4 or 5.5, of this Agreement
and such failure continues for a period of fifteen (15) days after the earlier of (i) the date on which such failure shall first
become known to any officer of the Borrower, or (ii) the date on which written notice thereof is given to Borrower by Agent; or
(c) fails
to perform or observe any covenant or other agreement contained in this Agreement, or in any of the other Loan Documents, in each case,
other than any such covenant or agreement that is the subject of another provision of this Section 8 (in which event such
other provision of this Section 8 shall govern), and such failure continues for a period of thirty (30) days after the earlier
of (i) the date on which such failure shall first become known to any officer of the Borrower, or (ii) the date on which written
notice thereof is given to Borrower by Agent;
8.3. Judgments.
If one or more judgments, orders, or awards for the payment of money involving an aggregate amount of $6,000,000, or more (except to the
extent covered (other than to the extent of customary deductibles) by insurance pursuant to which the insurer has not denied coverage)
is entered or filed against a Loan Party or any of its Subsidiaries, or with respect to any of their respective assets, and either (a) there
is a period of thirty (30) consecutive days at any time after the entry of any such judgment, order, or award during which (i) the
same is not discharged, satisfied, vacated, or bonded pending appeal, or (ii) a stay of enforcement thereof is not in effect, or
(b) enforcement proceedings are commenced upon such judgment, order, or award;
8.4. Voluntary
Bankruptcy. If an Insolvency Proceeding is commenced by a Loan Party or any of its Subsidiaries; provided, for the avoidance of
doubt, that an Insolvency Proceeding may be commenced for Beijing Comtech EF Data Equipment Repair Service Co., Ltd. after the Closing
Date;
8.5. Involuntary
Bankruptcy. If an Insolvency Proceeding is commenced against a Loan Party or any of its Subsidiaries and any of the following
events occur: (a) such Loan Party or such Subsidiary consents to the institution of such Insolvency Proceeding against it, (b) the
petition commencing the Insolvency Proceeding is not dismissed or stayed within 45 days, (c) in respect of each Loan Party other
than a UK Loan Party, the petition commencing the Insolvency Proceeding is not dismissed within sixty calendar days of the date of the
filing thereof, (d) an interim trustee is appointed to take possession of all or any substantial portion of the properties or assets
of, or to operate all or any substantial portion of the business of, such Loan Party or its Subsidiary, or (e) an order for relief
shall have been issued or entered therein; in the case of a UK Loan Party there shall be no Event of Default under this Section 8.5
if the Insolvency Proceeding is a winding-up petition which is frivolous or vexatious and is discharged, stayed or dismissed within 14
days of commencement;
-65-
8.6. [Reserved].
8.7. Representations.
If any warranty, representation, certificate, statement, or Record made herein or in any other Loan Document or delivered in writing to
Agent or any Lender in connection with this Agreement or any other Loan Document was untrue in any material respect (except that such
materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality
in the text thereof) as of the date of issuance or making or deemed making thereof;
8.8. Guaranty.
If the obligation of any Guarantor under the guaranty contained in the Guaranty, as applicable, is limited or terminated by operation
of law or by such Guarantor (other than in accordance with the terms of this Agreement) or if any Guarantor repudiates or revokes or purports
to repudiate or revoke any such guaranty; provided that in respect of any Foreign Subsidiary, this Event of Default shall be subject
to the Legal Reservations (as applicable);
8.9. Defaults
Under Other Agreements. If there is a default in one or more agreements to which a Loan Party or any of its Subsidiaries is a
party with one or more third Persons relative to a Loan Party's or any of its Subsidiaries' Indebtedness involving an aggregate amount
of $5,000,000 or more (including the Senior Credit Agreement), and such default (x) is caused by a failure to pay any interest amounts
due under such agreement or any amounts due at maturity under such agreement, in each case, if not cured or waived within thirty (30)
days pursuant to the terms of such agreement, or (y) results in the acceleration by such third Person of the maturity of such Loan
Party's or its Subsidiary's obligations thereunder;
8.10. Loan
Documents. The validity or enforceability of any Loan Document shall at any time for any reason (other than solely as the result
of an action or failure to act on the part of Agent) be declared to be null and void, or a proceeding shall be commenced by a Loan Party
or its Subsidiaries, or by any Governmental Authority having jurisdiction over a Loan Party or its Subsidiaries, seeking to establish
the invalidity or unenforceability thereof, or a Loan Party or its Subsidiaries shall deny that such Loan Party or its Subsidiaries has
any liability or obligation purported to be created under any Loan Document; provided that in respect of any Foreign Subsidiary,
this Event of Default shall be subject to the Legal Reservations (as applicable);
8.11. Change
of Control. A Change of Control shall occur;
8.12. ERISA.
The occurrence of any of the following events: (a) any Loan Party or ERISA Affiliate fails to make full payment when due of all amounts
which any Loan Party or ERISA Affiliate is required to pay as contributions, installments, or otherwise to or with respect to a Pension
Plan or Multiemployer Plan, and such failure could reasonably be expected to result in a Material Adverse Effect or result in a Lien on
the assets of any Loan Party under Section 303(k) or Section 4068 of ERISA or Section 430(k) of the IRC, (b) an
accumulated funding deficiency or funding shortfall occurs or exists, whether or not waived, with respect to any Pension Plan, individually
or in the aggregate, that could reasonably be expected to result in a Material Adverse Effect, (c) a Notification Event, which could
reasonably be expected to result in liability, either individually or in the aggregate, that could reasonably be expected to result in
a Material Adverse Effect, a payment liability of any Loan Party in excess of $6,000,000 or result in a Lien on the assets of any Loan
Party under Section 303(k) or Section 4068 of ERISA or Section 430(k) of the IRC, or (d) any Loan Party
or ERISA Affiliate completely or partially withdraws from one or more Multiemployer Plans and incurs Withdrawal Liability that could reasonably
be expected to result in a Material Adverse Effect or a payment liability of any Loan Party in excess of $6,000,000, or fails to make
any Withdrawal Liability payment when due;
-66-
8.13. [Reserved].
8.14. Material
Contracts. Any Material Contract is cancelled, terminated, amended, restated or otherwise modified in a manner which has a Material
Adverse Effect; provided that any “Default” or “Event of Default” as defined in and under the terms of
the Senior Credit Agreement (other than a “Default” or “Event of Default” with respect to the payment of Senior
Credit Agreement Obligations or which would allow for the acceleration of the maturity of Senior Credit Agreement Obligations) shall not
constitute an Event of Default pursuant to this Section 8.14; or
8.15. Conduct
of Business. If a Loan Party or any of its Subsidiaries is enjoined, restrained, or in any way prevented by court order from continuing
to conduct all or any material of the business affairs of Comtech and its Subsidiaries, taken as a whole.
9. RIGHTS AND REMEDIES.
9.1. Rights
and Remedies. Upon the occurrence and during the continuation of an Event of Default, Agent may, and, at the instruction of the
Required Lenders, shall (subject to the receipt of indemnity or security satisfactory to the Agent in accordance with Section 15),
in addition to any other rights or remedies provided for hereunder or under any other Loan Document or by applicable law, do any one or
more of the following:
(a) by
written notice to Borrower, declare the principal of, and any and all accrued and unpaid interest and fees in respect of, the Loans and
all other Obligations, whether evidenced by this Agreement or by any of the other Loan Documents to be immediately due and payable, whereupon
the same shall become and be immediately due and payable and Borrower shall be obligated to repay all of such Obligations in full, without
presentment, demand, protest, or further notice or other requirements of any kind, all of which are hereby expressly waived by Borrower;
(b) [reserved];
and
(c) exercise
all other rights and remedies available to Agent or the Lenders under the Loan Documents, under applicable law, or in equity; provided,
that with respect to any Event of Default resulting solely from failure of Borrowers to comply with the financial covenants set forth
in Section 7 after the occurrence of the Discharge of Senior Credit Agreement Obligations, neither Agent nor the Required
Lenders may exercise the foregoing remedies in this Section 9.1 until the date that is the earlier of (i) fifteen (15)
Business Days after the day on which financial statements are required to be delivered for the applicable fiscal quarter, and (ii) the
date that Agent receives notice that there will not be a Curative Equity contribution made for such fiscal quarter.
-67-
The foregoing to the contrary notwithstanding,
upon the occurrence of any Event of Default described in Section 8.4 or Section 8.5, in addition to the remedies
set forth above, without any notice to Borrower or any other Person or any act by the Lender Group, the Obligations, inclusive of the
principal of, and any and all accrued and unpaid interest and fees in respect of, the Loans and all other Obligations, whether evidenced
by this Agreement or by any of the other Loan Documents, shall automatically become and be immediately due and payable and Borrower shall
automatically be obligated to repay all of such Obligations in full, without presentment, demand, protest, or notice or other requirements
of any kind, all of which are expressly waived by Borrower.
9.2. Remedies
Cumulative. The rights and remedies of the Lender Group under this Agreement, the other Loan Documents, and all other agreements
shall be cumulative. The Lender Group shall have all other rights and remedies not inconsistent herewith as provided under the Code, the
PPSA, by law, or in equity. No exercise by the Lender Group of one right or remedy shall be deemed an election, and no waiver by the Lender
Group of any Default or Event of Default shall be deemed a continuing waiver. No delay by the Lender Group shall constitute a waiver,
election, or acquiescence by it.
9.3. Curative
Equity.
Subject to, and solely after,
the occurrence of the Discharge of Senior Credit Agreement Obligations:
(a) Subject
to the limitations set forth in clauses (d) and (e) below, Borrowers may cure (and shall be deemed to have cured) an Event of
Default arising out of a breach of the financial covenants set forth in Section 7 (the "Specified Financial Covenants")
if they receive the cash proceeds of an investment of Curative Equity on or before the date that is fifteen (15) Business Days after the
date that is the earlier to occur of (i) the date on which the Compliance Certificate is delivered to Agent in respect of the fiscal
quarter with respect to which any such breach occurred (the "Specified Financial Quarter"), and (ii) the date on which
the Compliance Certificate is required to be delivered to Agent pursuant to Section 5.1 in respect of the Specified Financial
Quarter (such earlier date, the "Financial Statement Delivery Date"); provided, that Borrowers' right to so cure an Event
of Default shall be contingent on their timely delivery of such Compliance Certificate and financial statements for the Specified Financial
Quarter as required under Section 5.1.
(b) In
connection with a cure of an Event of Default under this Section 9.3, on or before the Financial Statement Delivery Date for
the Specified Financial Quarter, Borrowers shall deliver to Agent a certification of an Authorized Person which contains, or Borrowers
shall include in the Compliance Certificate for the Specified Financial Quarter: (i) an indication that Borrowers will receive proceeds
of Curative Equity for the Specified Financial Quarter and a statement setting forth the anticipated amount of such proceeds, (ii) a
calculation of the financial results or prospective financial results of Borrowers for the Specified Financial Quarter (including for
such purposes the proceeds of the Curative Equity (broken out separately) as deemed EBITDA as if received on such date), which shall confirm
that on a pro forma basis after taking into account the receipt of the Curative Equity proceeds, Borrowers would have been or will be
in compliance with the Specified Financial Covenants for the Specified Financial Quarter, (iii) a certification that the full amount
of the cash proceeds of the equity investment made to Comtech in connection with such cure of the Event of Default shall be used to prepay
the Obligations in accordance with Section 2.4(e)(iv), regardless of whether the amount of such cash proceeds is in excess
of the amount that is sufficient to cause Borrowers to be in compliance with the Specified Financial Covenants for the Specified Financial
Quarter, and (iv) a certification that any amount of the cash proceeds of the equity investment in excess of the amount that is sufficient
to cause Borrowers to be in compliance with the Specified Financial Covenants for the Specified Financial Quarter shall not be included
in the calculation of EBITDA for any fiscal period.
-68-
(c) Borrowers
shall promptly notify Agent of its receipt of any proceeds of Curative Equity (and shall immediately apply the full amount of the cash
proceeds of such equity investment to the payment of the Obligations in the manner specified in Section 2.4(e)(iv)).
(d) Any
investment of Curative Equity shall be in immediately available funds and shall be in an amount that is sufficient to cause Borrowers
to be in compliance with the Specified Financial Covenants for the Specified Financial Quarter, calculated for such purpose as if such
amount of Curative Equity were additional EBITDA of Parent as at such date.
(e) Notwithstanding
anything to the contrary contained herein, regardless of whether an investment of Curative Equity is made prior to the applicable Financial
Statement Delivery Date, Borrowers' rights under this Section 9.3 may (i) be exercised not more than four times during
the term of this Agreement, (ii) not be exercised more than two times in any four consecutive fiscal quarter period and not more
than once during any two consecutive fiscal quarters. Any Curative Equity shall not exceed the amount necessary, after giving effect thereto,
to cause Borrowers to be in compliance with all of the Specified Financial Covenants for the Specified Financial Quarter. Regardless of
whether an investment of Curative Equity is made prior to the applicable Financial Statement Delivery Date, any amount of Curative Equity
that is in excess of the amount sufficient to cause Borrowers to be in compliance with all of the Specified Financial Covenants as at
such date shall not constitute Curative Equity.
(f) If
Borrowers have (i) delivered a certification or a Compliance Certificate conforming to the requirements of Section 9.3(b),
and (ii) received proceeds of an investment of Curative Equity in immediately available funds on or before the deadline set forth
in Section 9.3(a) and in an amount that is sufficient to cause Borrowers to be in compliance with the Specified Financial
Covenants for the Specified Financial Quarter, any Event of Default that occurs or has occurred and is continuing as a result of a breach
of the Specified Financial Covenants for the Specified Financial Quarter shall be deemed cured with no further action required by the
Required Lenders. Prior to satisfaction of the foregoing requirements of this Section 9.3(f), any Event of Default that occurs
or has occurred as a result of a breach of the Specified Financial Covenants shall be deemed to be continuing and, as a result, the Lenders
shall have no obligation to make additional loans or otherwise extend additional credit hereunder. In the event Borrowers do not cure
all financial covenant violations as provided in this Section 9.3, the existing Event(s) of Default shall continue unless
waived in writing by the Required Lenders in accordance herewith.
-69-
(g) To
the extent that Curative Equity is received and included in the calculation of the Specified Financial Covenants as deemed EBITDA for
any fiscal quarter pursuant to this Section 9.3, such Curative Equity shall be deemed to be EBITDA for purposes of determining
compliance with the Specified Financial Covenants for subsequent periods that include such fiscal month. Curative Equity shall be disregarded
for purposes of determining EBITDA for any pricing, financial covenant based conditions or any baskets with respect to the covenants contained
in this Agreement. In addition, notwithstanding any mandatory prepayment of Obligations pursuant to Section 2.4(e)(iv), any
Indebtedness so prepaid shall be deemed to remain outstanding for purposes of determining pro forma or actual compliance with the Specified
Financial Covenants or for determining any pricing, financial covenant based conditions or baskets with respect to the covenants contained
in this Agreement, in each case in the Specified Financial Quarter.
10. WAIVERS; INDEMNIFICATION.
10.1. Demand;
Protest; etc. Borrower waives demand, protest, notice of protest, notice of default or dishonor, notice of payment and nonpayment,
nonpayment at maturity, release, compromise, settlement, extension, or renewal of documents, instruments, chattel paper, and guarantees
at any time held by the Lender Group on which the Borrower may in any way be liable.
10.2. [Reserved].
10.3. Indemnification.
Borrower shall pay, indemnify, defend, and hold the Agent-Related Persons and the Lender-Related Persons (each, an "Indemnified
Person") harmless (to the fullest extent permitted by law) from and against any and all claims, demands, suits, actions, investigations,
proceedings, liabilities, fines, costs, penalties, and damages, and all reasonable and documented out-of-pocket fees and disbursements
of attorneys, experts, or consultants and all other costs and expenses actually incurred in connection therewith or in connection with
the enforcement of this indemnification (as and when they are incurred and irrespective of whether suit is brought), at any time asserted
against, imposed upon, or incurred by any of them (a) in connection with or as a result of or related to the execution and delivery
(provided, that Borrower shall not be liable for costs and expenses (including reasonable and documented out-of-pocket attorneys'
fees) of any Lender (other than White Hat Capital Partners LP, Magnetar Capital LLC and their respective Affiliates) incurred in advising,
structuring, drafting, reviewing, administering or syndicating the Loan Documents), enforcement, performance, or administration (including
any restructuring or workout with respect hereto) of this Agreement, any of the other Loan Documents, or the transactions contemplated
hereby or thereby or the monitoring of Comtech's and its Subsidiaries' compliance with the terms of the Loan Documents (provided,
that the indemnification in this clause (a) shall not extend to (i) disputes solely between or among the Lenders that do not
involve any acts or omissions of any Loan Party, or (ii) disputes solely between or among the Lenders and their respective Affiliates
that do not involve any acts or omissions of any Loan Party; it being understood and agreed that the indemnification in this clause (a) shall
extend to Agent (but not the Lenders unless the dispute involves an act or omission of a Loan Party) relative to disputes between or among
Agent on the one hand, and one or more Lenders, or one or more of their Affiliates, on the other hand, or (iii) any claims for Taxes,
which shall be governed by Section 16, other than Taxes which relate to primarily non-Tax claims), (b) with respect to
any actual or prospective investigation, litigation, or proceeding related to this Agreement, any other Loan Document, the making of any
Loans, or the use of the proceeds of the Loans (irrespective of whether any Indemnified Person is a party thereto), or any act, omission,
event, or circumstance in any manner related thereto, and (c) in connection with or arising out of any presence or release of Hazardous
Materials at, on, under, to or from any assets or properties owned, leased or operated by any Loan Party or any of its Subsidiaries or
any Environmental Actions, Environmental Liabilities or Remedial Actions related in any way to any such assets or properties of any Loan
Party or any of its Subsidiaries (each and all of the foregoing, the "Indemnified Liabilities"). The foregoing to the
contrary notwithstanding, Borrower shall not have any obligation to any Indemnified Person under this Section 10.3 with respect
to any Indemnified Liability that a court of competent jurisdiction finally determines to have resulted from the gross negligence or willful
misconduct of such Indemnified Person or its officers, directors, employees, attorneys, or agents. This provision shall survive the termination
of this Agreement and the repayment in full of the Obligations. If any Indemnified Person makes any payment to any other Indemnified Person
with respect to an Indemnified Liability as to which Borrower was required to indemnify the Indemnified Person receiving such payment,
the Indemnified Person making such payment is entitled to be indemnified and reimbursed by Borrower with respect thereto. WITHOUT LIMITATION,
THE FOREGOING INDEMNITY SHALL APPLY TO EACH INDEMNIFIED PERSON WITH RESPECT TO INDEMNIFIED LIABILITIES WHICH IN WHOLE OR IN PART ARE
CAUSED BY OR ARISE OUT OF ANY NEGLIGENT ACT OR OMISSION OF SUCH INDEMNIFIED PERSON OR OF ANY OTHER PERSON.
-70-
11. NOTICES.
Unless otherwise provided in
this Agreement, all notices or demands relating to this Agreement or any other Loan Document shall be in writing and (except for financial
statements and other informational documents which may be sent by first-class mail, postage prepaid) shall be personally delivered or
sent by registered or certified mail (postage prepaid, return receipt requested), overnight courier, electronic mail (at such email addresses
as a party may designate in accordance herewith), or telefacsimile. In the case of notices or demands to any Loan Party or Agent, as the
case may be, they shall be sent to the respective address set forth below:
If to any Loan Party:
c/o COMTECH TELECOMMUNICATIONS CORP.
68 South Service Road, Suite 230
Melville, New York 11747
Attn: Michael A. Bondi, Chief Financial Officer
E-mail: Michael.Bondi@comtech.com
Telephone No.: (631) 962-7106
with copies to (which shall not constitute notice):
PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP
1285 Avenue of Americas
New York, New York 10019-6064
Attn: David Tarr, Esq.
E-mail: dtarr@paulweiss.com
Telephone No.: (212) 373-3375
-71-
If to Agent or any Lender:
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
Global Corporate Trust
214 N. Tryon Street, 27th Floor
Charlotte, NC 28202
Attention: James A. Hanley
Email: agency.services@usbank.com;
james.hanley1@usbank.com
Telephone: (302) 485-4191
with copies to (which shall not constitute notice):
SHIPMAN & GOODWIN LLP
One Constitution Plaza,
Hartford, CT 06103
Attention: Kimberly S. Cohen
Email: kcohen@goodwin.com
Telephone: (860) 251-5804
Any party hereto may change
the address at which they are to receive notices hereunder, by notice in writing in the foregoing manner given to the other party. All
notices or demands sent in accordance with this Section 11, shall be deemed received on the earlier of the date of actual
receipt or three (3) Business Days after the deposit thereof in the mail; provided, that (a) notices sent by overnight
courier service shall be deemed to have been given when received, (b) notices by facsimile shall be deemed to have been given when
sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business
on the next Business Day for the recipient) and (c) notices by electronic mail shall be deemed received upon the sender's receipt
of an acknowledgment from the intended recipient (such as by the "return receipt requested" function, as available, return email
or other written acknowledgment). Any note to Agent shall be effective upon actual receipt.
12. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER.
(a) THE
VALIDITY OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (UNLESS EXPRESSLY PROVIDED TO THE CONTRARY IN ANOTHER LOAN DOCUMENT IN RESPECT
OF SUCH OTHER LOAN DOCUMENT), THE CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT HEREOF AND THEREOF, THE RIGHTS OF THE PARTIES HERETO
AND THERETO WITH RESPECT TO ALL MATTERS ARISING HEREUNDER OR THEREUNDER OR RELATED HERETO OR THERETO, AND ANY CLAIMS, CONTROVERSIES OR
DISPUTES ARISING HEREUNDER OR THEREUNDER OR RELATED HERETO OR THERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
-72-
(b) THE
PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE TRIED AND
LITIGATED ONLY IN THE STATE AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, FEDERAL COURTS LOCATED IN THE COUNTY OF NEW YORK, STATE OF
NEW YORK. BORROWER AND EACH MEMBER OF THE LENDER GROUP WAIVE, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT EACH MAY HAVE
TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 12(b).
(c) TO
THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BORROWER AND EACH MEMBER OF THE LENDER GROUP HEREBY WAIVE THEIR RESPECTIVE RIGHTS, IF
ANY, TO A JURY TRIAL OF ANY CLAIM, CONTROVERSY, DISPUTE OR CAUSE OF ACTION DIRECTLY OR INDIRECTLY BASED UPON OR ARISING OUT OF ANY OF
THE LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS,
AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS (EACH A "CLAIM"). BORROWER AND EACH MEMBER OF THE LENDER GROUP REPRESENT
THAT EACH HAS REVIEWED THIS WAIVER AND EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
IN THE EVENT OF LITIGATION, A COPY OF THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
(d) BORROWER
HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN THE COUNTY OF
NEW YORK AND THE STATE OF NEW YORK, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS, OR FOR RECOGNITION
OR ENFORCEMENT OF ANY JUDGMENT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE
AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT AGENT MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST ANY LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
(e) NO
CLAIM MAY BE MADE BY ANY LOAN PARTY AGAINST AGENT, ANY LENDER OR ANY AFFILIATE, DIRECTOR, OFFICER, EMPLOYEE, COUNSEL, REPRESENTATIVE,
AGENT, OR ATTORNEY-IN-FACT OF ANY OF THEM FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OR LOSSES IN RESPECT
OF ANY CLAIM FOR BREACH OF CONTRACT OR ANY OTHER THEORY OF LIABILITY ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY ACT, OMISSION, OR EVENT OCCURRING IN CONNECTION THEREWITH, AND EACH LOAN PARTY HEREBY WAIVES,
RELEASES, AND AGREES NOT TO SUE UPON ANY CLAIM FOR SUCH DAMAGES, WHETHER OR NOT ACCRUED AND WHETHER OR NOT KNOWN OR SUSPECTED TO EXIST
IN ITS FAVOR.
-73-
13. ASSIGNMENTS; SUCCESSORS.
13.1. Assignments.
(a) (A) Subject
to the conditions set forth in clause (a)(ii) below, any Lender may assign and delegate all or any portion of its rights and duties
under the Loan Documents (including the Obligations owed to it) to one or more assignees so long as such prospective assignee is an Eligible
Transferee (each, an "Assignee"), with the prior written consent (each such consent not be unreasonably withheld or delayed)
of:
(A) Borrower;
provided, that no consent of Borrower shall be required (1) if an Event of Default under Sections 8.1, 8.2(a)(i) (solely
with respect to Section 5.1), 8.2(a)(iii), 8.4 or 8.5 has occurred and is continuing or (2) in connection
with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that
Borrower shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent within five (5) Business
Days after having received notice thereof; and
(B) Agent;
provided, that no such consent shall be required in connection with an assignment to a Person that is a Lender or an Affiliate
(other than natural persons) of a Lender.
(ii) Assignments
shall be subject to the following additional conditions:
(A) no
assignment may be made to a natural person,
(B) [reserved],
(C) the
amount of the Loans and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject
to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent)
shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment
or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender, or (II) a group of
new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount
to be assigned to all such new Lenders is at least $5,000,000),
(D) each
partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender's rights and obligations under this
Agreement,
(E) the
parties to each assignment shall execute and deliver to Agent an Assignment and Acceptance; provided, that Borrower and Agent may
continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written
notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been
given to Borrower and Agent by such Lender and the Assignee,
-74-
(F) [reserved],
and
(G) the
assignee, if it is not a Lender, shall deliver to Agent an Administrative Questionnaire in a form approved by Agent (the "Administrative
Questionnaire") and all information and other documents required under the Patriot Act.
(b) From
and after the date that Agent receives the executed Assignment and Acceptance and, if applicable, payment of the required processing fee,
(i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to
it pursuant to such Assignment and Acceptance, shall be a "Lender" and shall have the rights and obligations of a Lender under
the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other
Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Sections
10.3 and 16) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance
covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement and the other Loan Documents,
such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning
Lender from obligations that survive the termination of this Agreement, including such assigning Lender's obligations under Section 15
and Section 17.9(a).
(c) By
executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning
Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of
this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty
and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party
of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms
that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without
reliance upon Agent, such assigning Lender or any other Lender, and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, (v) such Assignee appoints
and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated
to Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee
agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
-75-
(d) [reserved].
(e) [reserved].
(f) In
connection with any such assignment or proposed assignment or any grant of a security interest in, or pledge of, its rights under and
interest in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all documents and information
which it now or hereafter may have relating to any Loan Party and its Subsidiaries and their respective businesses.
(g) Any
other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion
of its rights under and interest in this Agreement to secure obligations of such Lender, including any pledge in favor of any Federal
Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal
Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law; provided, that no such
pledge shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a
party hereto.
(h) Agent
(with respect to Term Loans), as a non-fiduciary agent on behalf of Borrower, shall maintain, or cause to be maintained, a register (collectively,
the "Register") on which it enters the name and address of each Lender as the registered owner of the applicable Loans
(and the principal amount thereof and stated interest thereon) held by such Lender. Other than in connection with an assignment by a Lender
of all or any portion of its portion of Loans to an Affiliate of such Lender or a Related Fund of such Lender (i) a Loan (and the
registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale
on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Loan
(and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register,
together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument
of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or
transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or
transferee(s). Prior to the registration of assignment or sale of any Loan (and the registered note, if any evidencing the same), Borrower
shall treat the Person in whose name such Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof
for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any
assignment by a Lender of all or any portion of its Loans to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment
is not recorded in the Register, the assigning Lender, on behalf of Borrower, shall maintain a register comparable to the Register.
(i) [reserved].
(j) Agent
shall make a copy of the Register available for review by Borrower from time to time as Borrower may reasonably request.
13.2. Successors.
This Agreement shall bind and inure to the benefit of the respective successors and assigns of each of the parties; provided, that
no Borrower may assign this Agreement or any rights or duties hereunder without the Lenders' prior written consent and any prohibited
assignment shall be absolutely void ab initio. No consent to assignment by the Lenders shall release Borrower from its Obligations. A
Lender may assign this Agreement and the other Loan Documents and its rights and duties hereunder and thereunder pursuant to Section 13.1
and, except as expressly required pursuant to Section 13.1, no consent or approval by Borrower is required in connection with
any such assignment.
-76-
14. AMENDMENTS; WAIVERS.
14.1. Amendments
and Waivers.
(a) No
amendment, waiver or other modification of any provision of this Agreement or any other Loan Document and no consent with respect to any
departure by Borrower therefrom, shall be effective unless the same shall be in writing and signed by the Required Lenders (or by Agent
at the written request of the Required Lenders) and the Loan Parties that are party thereto and then any such waiver or consent shall
be effective, but only in the specific instance and for the specific purpose for which given; provided, that no such waiver, amendment,
or consent shall, unless in writing and signed by (x) the amount or number of Lenders set forth below and (y) all of the Loan
Parties that are party thereto, do any of the following:
(i) increase
the amount of or extend the expiration date of any Term Loan Commitment of any Lender without the consent of such Lender;
(ii) without
the consent of each Lender directly and adversely affected thereby, postpone or delay any date fixed by this Agreement or any other Loan
Document for any payment of principal, interest, fees, or other amounts due hereunder or under any other Loan Document;
(iii) without
the consent of each Lender directly and adversely affected thereby, reduce the principal of any loan or other extension of credit hereunder,
or reduce any fees or other amounts payable hereunder or under any other Loan Document;
(iv) without
the consent of each Lender, amend, modify, or eliminate this Section or any provision of this Agreement providing for consent or
other action by all Lenders;
(v) without
the consent of each Lender directly and adversely affected thereby, amend, modify, or eliminate Section 3.1 or 3.2;
(vi) [reserved];
(vii) without
the consent of each Lender, amend, modify, or eliminate the definitions of "Required Lenders" or "Pro Rata Share";
(viii) without
the consent of each Lender, other than in connection with a merger, amalgamation, liquidation, dissolution or sale of such Person expressly
permitted by the terms hereof or the other Loan Documents, release the Borrower or any Guarantor from any obligation for the payment of
money or consent to the assignment or transfer by the Borrower or any Guarantor of any of its rights or duties under this Agreement or
the other Loan Documents;
-77-
(ix) without
the consent of each Lender directly and adversely affected thereby, amend, modify, or eliminate any of the provisions of Section 2.4
or the definition of Application Event, Section 13.1(a)(i)(A) or (B), or this Section 14.1;
(x) without
the consent of each Lender adversely affected thereby, provide for payment subordination of all or any of the Obligations (including any
Guaranty) to any other Indebtedness for borrowed money or Indebtedness evidenced by promissory notes, bonds, debentures, loan agreements
or similar instruments of the Borrower or Subsidiary or Affiliate, except (x) as provided in the Subordination Agreement (as in effect
on the Amendment No. 2 Effective Date) and Section 2.4 hereof or (y) to the extent such adversely affected Lender
is offered a reasonable, bona fide opportunity to participate on a pro rata basis in any such Indebtedness on identical terms (including,
for the avoidance of doubt, any accompanying right or offer to participate in any “roll-up” of existing Indebtedness), which
offer shall remain open to adversely affected Lenders for a period of not less than ten Business Days; provided, however, that
if any such adversely affected Lender does not accept an offer to provide its Pro Rata Share (based on all Term Loans) of such Indebtedness
within the time specified for acceptance of such offer being made, such adversely affected Lender shall be deemed to have declined such
offer; or
(xi) without
the consent of each Lender adversely affected thereby, increase (x) the principal amount of the Amendment No. 2 Priority Term
Loans, except to the extent such adversely affected Lender is offered a reasonable, bona fide opportunity to participate on a pro rata
basis in any such increase on identical terms, which offer shall remain open to adversely affected Lenders for a period of not less than
ten Business Days; provided, however, that if any such adversely affected Lender does not accept an offer to provide its Pro Rata
Share (based on all Term Loans) of such increase within the time specified for acceptance of such offer being made, such adversely affected
Lender shall be deemed to have declined such offer, or (y) the interest rate or fees payable in respect of, in each case, the Amendment
No. 2 Priority Term Loans.
(b) No
amendment, waiver, modification, or consent shall amend, modify, waive, or eliminate,
(i) the
definition of, or any of the terms or provisions of, the Fee Letter, without the written consent of Agent and Borrower (and shall not
require the written consent of any of the Lenders),
(ii) permit
the assignment or transfer by the Borrower of its rights and obligations under this Agreement or the other Loan Documents without the
written consent of each Lender, or
(iii) any
provision of Section 15 pertaining to Agent, or any other rights or duties of Agent under this Agreement or the other Loan
Documents, without the written consent of Agent, Borrower, and the Required Lenders;
-78-
(c) Anything
in this Section 14.1 to the contrary notwithstanding, any amendment, modification, elimination, waiver, consent, termination,
or release of, or with respect to, any provision of this Agreement or any other Loan Document that relates only to the relationship of
the Lender Group among themselves, and that does not affect the rights or obligations of any Loan Party, shall not require consent by
or the agreement of any Loan Party, provided that the Lender Group shall provide a copy of any such amendment to the Agent.
14.2. Replacement
of Certain Lenders.
(a) If
(i) any action to be taken by the Lender Group or Agent hereunder requires the consent, authorization, or agreement of all Lenders
or all Lenders affected thereby and if such action has received the consent, authorization, or agreement of the Required Lenders but not
of all Lenders or all Lenders affected thereby, or (ii) any Lender makes a claim for compensation under Section 16, then
Borrower, upon at least five (5) Business Days prior irrevocable notice, may permanently replace any Lender that failed to give its
consent, authorization, or agreement (a "Non-Consenting Lender") or any Lender that made a claim for compensation under
Section 16 (a "Tax Lender") with one or more replacement Lenders, and the Non-Consenting Lender or Tax Lender,
as applicable, shall have no right to refuse to be replaced hereunder; provided, however, that in the case of clause (a)(ii) above,
such replacement must have the effect of reducing or eliminating the compensation otherwise owing under Section 16. Such notice
to replace the Non-Consenting Lender or Tax Lender, as applicable, shall specify an effective date for such replacement, which date shall
not be later than fifteen (15) Business Days after the date such notice is given. The replacement of such Non-Consenting Lender or Tax
Lender shall not be required if, prior thereto, the circumstances entitling the Borrower to require such replacement cease to apply.
(b) Prior
to the effective date of such replacement, the Non-Consenting Lender or Tax Lender, as applicable, and each replacement Lender shall execute
and deliver an Assignment and Acceptance, subject only to the Non-Consenting Lender or Tax Lender, as applicable, being repaid in full
its share of the outstanding Obligations (without any premium or penalty of any kind whatsoever, but including all interest, fees and
other amounts that may be due in payable in respect thereof). If the Non-Consenting Lender or Tax Lender, as applicable, shall refuse
or fail to execute and deliver any such Assignment and Acceptance prior to the effective date of such replacement, Agent may, but shall
not be required to, execute and deliver such Assignment and Acceptance in the name or and on behalf of the Non-Consenting Lender or Tax
Lender, as applicable, and irrespective of whether Agent executes and delivers such Assignment and Acceptance, the Non-Consenting Lender
or Tax Lender, as applicable, shall be deemed to have executed and delivered such Assignment and Acceptance. The replacement of any Non-Consenting
Lender or Tax Lender, as applicable, shall be made in accordance with the terms of Section 13.1. Until such time as one or
more replacement Lenders shall have acquired all of the Obligations and the other rights and obligations of the Non-Consenting Lender
or Tax Lender, as applicable, hereunder and under the other Loan Documents, the Non-Consenting Lender or Tax Lender, as applicable, shall
remain obligated to make the Non-Consenting Lender's or Tax Lender's, as applicable, Pro Rata Share of Loans.
14.3. No
Waivers; Cumulative Remedies. No failure by Agent or any Lender to exercise any right, remedy, or option under this Agreement
or any other Loan Document, or delay by Agent or any Lender in exercising the same, will operate as a waiver thereof. No waiver by Agent
or any Lender will be effective unless it is in writing, and then only to the extent specifically stated. No waiver by Agent or any Lender
on any occasion shall affect or diminish Agent's and each Lender's rights thereafter to require strict performance by Borrower of any
provision of this Agreement. Agent's and each Lender's rights under this Agreement and the other Loan Documents will be cumulative and
not exclusive of any other right or remedy that Agent or any Lender may have.
-79-
15. AGENT; THE LENDER GROUP.
15.1. Appointment
and Authorization of Agent. Each Lender hereby designates and appoints U.S. Bank Trust Company, National Association as its administrative
agent under this Agreement and the other Loan Documents, and each Lender hereby irrevocably authorizes Agent to execute and deliver each
of the other Loan Documents on its behalf and to take such other action on its behalf under the provisions of this Agreement and each
other Loan Document and to exercise such powers and perform such duties as are expressly delegated to Agent by the terms of this Agreement
or any other Loan Document, together with such powers as are reasonably incidental thereto. Agent agrees to act as agent for and on behalf
of the Lenders on the conditions contained in this Section 15. Any provision to the contrary contained elsewhere in this Agreement
or in any other Loan Document notwithstanding, the Agent shall not have any duties or responsibilities, except those expressly set forth
herein or in the other Loan Documents, nor shall Agent have or be deemed to have any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document
or otherwise exist against Agent. Without limiting the generality of the foregoing, the use of the term "agent" in this Agreement
or the other Loan Documents with reference to Agent is not intended to connote any fiduciary or other implied (or express) obligations
arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to
create or reflect only a representative relationship between independent contracting parties. Except as expressly otherwise provided in
this Agreement, Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary
rights or taking or refraining from taking any actions that Agent expressly is entitled to take or assert under or pursuant to this Agreement
and the other Loan Documents. Without limiting the generality of the foregoing, or of any other provision of the Loan Documents that provides
rights or powers to Agent, Lenders agree that Agent shall have the right (but not the obligation) to exercise the following powers as
long as this Agreement remains in effect: (a) maintain, in accordance with its customary business practices, ledgers and records
reflecting the status of the Obligations and related matters, (b) execute or file any and all financing or similar statements or
notices, amendments, renewals, supplements, documents, instruments, proofs of claim, notices and other written agreements with respect
to the Loan Documents, (c) make Loans, for itself or on behalf of Lenders, as provided in the Loan Documents, (d) [reserved],
(e) open and maintain such bank accounts and cash management arrangements as Agent deems necessary and appropriate in accordance
with the Loan Documents for the foregoing purposes and (f) perform, exercise, and enforce any and all other rights and remedies of
the Lender Group with respect to any Loan Party or its Subsidiaries, the Obligations, or otherwise related to any of same as provided
in the Loan Documents.
-80-
15.2. Delegation
of Duties. Agent may execute any of its duties under this Agreement or any other Loan Document by or through agents, sub-agents,
employees or attorneys in fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. Agent shall
not be responsible for the negligence or misconduct of any agent or attorney in fact that it selects as long as such selection was made
without gross negligence or willful misconduct. All rights, benefits and privileges (including the exculpatory and indemnification provisions)
of this Agreement shall apply to any such sub-agent and to the affiliates of any such sub-agent and shall apply to their respective activities
as sub-agent as if such sub-agent and affiliates were named herein.
15.3. Liability
of Agent. None of the Agent-Related Persons shall (a) be liable for any action taken or omitted to be taken by any of them
under or in connection with this Agreement or any other Loan Document or the transactions contemplated hereby (except for its own gross
negligence or willful misconduct as determined by a final court order of a court of competent jurisdiction), or (b) be responsible
in any manner to any of the Lenders for any recital, statement, representation or warranty made by any Loan Party or any of its Subsidiaries
or Affiliates, or any officer or director thereof, contained in this Agreement or in any other Loan Document, or in any certificate, report,
statement or other document referred to or provided for in, or received by Agent under or in connection with, this Agreement or any other
Loan Document, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document,
or for any failure of any Loan Party or its Subsidiaries or any other party to any Loan Document to perform its obligations hereunder
or thereunder. No Agent-Related Person shall be under any obligation to any Lenders to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document, or to inspect the books
and records or properties of any Loan Party or its Subsidiaries. No Agent-Related Person shall have any liability to any Lender, and Loan
Party or any of their respective Affiliates if any request for a Loan or other extension of credit was not authorized by the Borrower.
Agent shall not be required to take any action that, in its opinion or in the opinion of its counsel, may expose it to liability or that
is contrary to any Loan Document or applicable law or regulation. In no event shall Agent be responsible for any failure or delay in the
performance of any act or obligation hereunder arising out of or caused by, directly or indirectly, force majeure events beyond its control,
including any provision of any law or regulation or any act of any governmental authority, strikes, work stoppages, accidents, acts of
war, other military disturbances or terrorism, earthquakes, fire, flood, sabotage, epidemics, pandemics, riots, nuclear or natural catastrophes
or acts of God, labor disputes, acts of civil or military authority, or the unavailability of the Federal Reserve Board wire systems and
interruptions, loss or malfunctions of utilities, communication facilities or computer (software and hardware) services (it being understood
that the Agent shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance
as soon as practicable under the circumstances).
15.4. Reliance
by Agent. Agent shall be entitled to conclusively rely, and shall be fully protected in relying, upon any writing, resolution,
notice, consent, certificate, affidavit, letter, telegram, telefacsimile or other electronic method of transmission, telex or telephone
message, statement or other document or conversation believed by it to be genuine and correct and to have been signed, sent, or made by
the proper Person or Persons, and upon advice and statements of legal counsel (including counsel to Borrower or counsel to any Lender),
independent accountants and other experts selected by Agent. Agent shall be fully justified in failing or refusing to take any action
under this Agreement or any other Loan Document unless Agent shall first receive such advice or concurrence of the Lenders as it deems
appropriate and until such instructions are received, Agent shall act, or refrain from acting, as it deems advisable. If Agent so requests,
it shall first be indemnified to its satisfaction by the Lenders against any and all liability and expense that may be incurred by it
by reason of taking or continuing to take any such action. Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement or any other Loan Document in accordance with a request or consent of the Required Lenders and such request
and any action taken or failure to act pursuant thereto shall be binding upon all of the Lenders; provided that Agent shall not
be required to take any action that, in its opinion or the opinion of its counsel, may expose Agent to liability or that is contrary to
any Loan Document, or applicable law. Documents delivered to Agent are for informational purposes only and the Agent’s receipt of
such shall not constitute constructive notice of any information contained therein or determinable from information contained therein,
including the Borrower’s compliance with any of its covenants hereunder (as to which Agent is entitled to rely exclusively on certificates
of a responsible officer of the Borrower). Agent shall have no obligation to verify the information or calculations set forth in this
Agreement or otherwise. Agent shall have no responsibility or liability for the filing, timeliness or content of any report required under
this Agreement or the other Loan Documents. Agent may conclusively rely on the applicable assignment agreement as to whether any Lender
or proposed Lender is an Eligible Transferee
-81-
15.5. Notice
of Default or Event of Default. Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event
of Default, except with respect to defaults in the payment of principal, interest, fees, and expenses required to be paid to Agent for
the account of the Lenders and, except with respect to Events of Default of which Agent has actual knowledge, unless Agent shall have
received written notice from a Lender or Borrower referring to this Agreement, describing such Default or Event of Default, and stating
that such notice is a "notice of default." Agent promptly will notify the Lenders of its receipt of any such notice or of any
Event of Default of which Agent has actual knowledge. If any Lender obtains actual knowledge of any Event of Default, such Lender promptly
shall notify the other Lenders and Agent of such Event of Default. Subject to Section 15.4, Agent shall take such action with
respect to such Default or Event of Default as may be requested by the Required Lenders in accordance with Section 9; provided,
that unless and until Agent has received any such request, Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall deem advisable.
15.6. Credit
Decision. Each Lender acknowledges that none of the Agent-Related Persons has made any representation or warranty to it, and that
no act by Agent hereinafter taken, including any review of the affairs of any Loan Party and its Subsidiaries or Affiliates, shall be
deemed to constitute any representation or warranty by any Agent-Related Person to any Lender. Each Lender represents to Agent that it
has, independently and without reliance upon any Agent-Related Person and based on such due diligence, documents and information as it
has deemed appropriate, made its own appraisal of and investigation into the business, prospects, operations, property, financial and
other condition and creditworthiness of Borrower or any other Person party to a Loan Document, and all applicable bank regulatory laws
relating to the transactions contemplated hereby, and made its own decision to enter into this Agreement and to extend credit to Borrower.
Each Lender also represents that it will, independently and without reliance upon any Agent-Related Person and based on such documents
and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking
or not taking action under this Agreement and the other Loan Documents, and to make such investigations as it deems necessary to inform
itself as to the business, prospects, operations, property, financial and other condition and creditworthiness of Borrower or any other
Person party to a Loan Document. Except for notices, reports, and other documents expressly herein required to be furnished to the Lenders
by Agent, Agent shall not have any duty or responsibility to provide any Lender with any credit or other information concerning the business,
prospects, operations, property, financial and other condition or creditworthiness of the Borrower or any other Person party to a Loan
Document that may come into the possession of any of the Agent-Related Persons. Each Lender acknowledges Agent has no duty or responsibility,
either initially or on a continuing basis (except to the extent, if any, that is expressly specified herein) to provide such Lender with
any credit or other information with respect to the Borrower, its Affiliates or any of their respective business, legal, financial or
other affairs, and irrespective of whether such information came into Agent's or its Affiliates' or representatives' possession before
or after the date on which such Lender became a party to this Agreement.
-82-
15.7. Costs
and Expenses; Indemnification. Borrower shall pay all reasonable and documented out-of-pocket costs and expenses incurred by the
Agent and the Lenders, including the fees, charges and disbursements of counsel for such Agent and such Lenders, incurred in connection
with the Loans, the preparation, execution, delivery and administration of the Loan Documents or any amendments, modifications or waivers
of the provisions thereof and preservation, enforcement or protection of any rights or remedies. Agent may (but shall not be obligated
to) incur and pay expenses of the Lenders to the extent Agent reasonably deems necessary or appropriate for the performance and fulfillment
of its functions, powers, and obligations pursuant to the Loan Documents, including court costs, attorneys' fees and expenses, fees and
expenses of financial accountants, advisors, consultants, and appraisers, costs of collection by outside collection agencies, and auctioneer
fees and expenses, whether or not Borrower is obligated to reimburse Agent or Lenders for such expenses pursuant to this Agreement or
otherwise. In the event Agent is not reimbursed for such costs and expenses by the Loan Parties and their Subsidiaries, each Lender hereby
agrees that it is and shall be obligated to pay to Agent such Lender's ratable share thereof. Whether or not the transactions contemplated
hereby are consummated, each of the Lenders, on a ratable basis, shall indemnify and defend the Agent-Related Persons (to the extent not
reimbursed by or on behalf of Borrower and without limiting the obligation of Borrower to do so) from and against any and all Indemnified
Liabilities; provided, that no Lender shall be liable for the payment to any Agent-Related Person of any portion of such Indemnified
Liabilities resulting solely from such Person's gross negligence or willful misconduct as determined by a final court order of a court
of competent jurisdiction. Without limitation of the foregoing, each Lender shall reimburse Agent upon demand for such Lender's ratable
share of any costs or out of pocket expenses (including attorneys, accountants, advisors, and consultants fees and expenses) incurred
by Agent in connection with the preparation, execution, delivery, administration, modification, amendment, or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement or any
other Loan Document to the extent that Agent is not reimbursed for such expenses by or on behalf of Borrower. The undertaking in this
Section shall survive the payment of all Obligations hereunder and the resignation or replacement of Agent.
-83-
15.8. Agent
in Individual Capacity. U.S. Bank Trust Company, National Association and its Affiliates may make loans to, accept deposits from,
acquire Equity Interests in, and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with
any Loan Party and its Subsidiaries and Affiliates and any other Person party to any Loan Document as though U.S. Bank Trust Company,
National Association was not Agent hereunder, without notice to or consent of the other members of the Lender Group. The other members
of the Lender Group acknowledge that, pursuant to such activities, U.S. Bank Trust Company, National Association or its Affiliates may
receive information regarding a Loan Party or its Affiliates or any other Person party to any Loan Documents that is subject to confidentiality
obligations in favor of such Loan Party or such other Person and that prohibit the disclosure of such information to the Lenders, and
the Lenders acknowledge that, in such circumstances (and in the absence of a waiver of such confidentiality obligations, which waiver
Agent will use its reasonable best efforts to obtain), Agent shall not be under any obligation to provide such information to them.
15.9. Successor
Agent.Agent may resign as Agent upon 30 days (ten days if an Event of Default has occurred and is continuing) prior written notice
to the Lenders (unless such notice is waived by the Required Lenders) and Borrower (unless such notice is waived by Borrower or a Default
or Event of Default has occurred and is continuing). If Agent resigns under this Agreement, the Required Lenders shall be entitled to
appoint a successor Agent for the Lenders with the consent of, so long as no Event of Default has occurred and is continuing, Borrower,
such consent not to be unreasonably withheld, delayed, or conditioned. If Agent has materially breached or failed to perform any material
provision of this Agreement or of applicable law, the Required Lenders may agree in writing to remove and replace Agent with a successor
Agent from among the Term Loan Lenders with the consent of, so long as no Event of Default has occurred and is continuing, Borrower, such
consent not to be unreasonably withheld, delayed, or conditioned. In any such event, upon the acceptance of its appointment as successor
Agent hereunder, such successor Agent shall succeed to all the rights, powers, and duties of the retiring Agent, and the term "Agent"
shall mean such successor Agent, and the retiring Agent's appointment, powers, and duties as Agent shall be terminated. After any retiring
Agent's resignation hereunder as Agent, the provisions of this Section 15 shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Agent under this Agreement. If no successor Agent has accepted appointment as Agent by the date
which is 30 days following a retiring Agent's notice of resignation, the retiring Agent's resignation shall nevertheless thereupon become
effective and the Lenders shall perform all of the duties of Agent hereunder until such time, if any, as the Lenders appoint a successor
Agent as provided for above.
15.10. Lender
in Individual Capacity. Any Lender and its respective Affiliates may make loans to, accept deposits from, acquire Equity Interests
in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with any Loan Party and its
Subsidiaries and Affiliates and any other Person party to any Loan Documents as though such Lender were not a Lender hereunder without
notice to or consent of the other members of the Lender Group. The other members of the Lender Group acknowledge that, pursuant to such
activities, such Lender and its respective Affiliates may receive information regarding a Loan Party or its Affiliates or any other Person
party to any Loan Documents that is subject to confidentiality obligations in favor of such Loan Party or such other Person and that prohibit
the disclosure of such information to the Lenders, and the Lenders acknowledge that, in such circumstances (and in the absence of a waiver
of such confidentiality obligations, which waiver such Lender will use its reasonable best efforts to obtain), such Lender shall not be
under any obligation to provide such information to them.
-84-
15.11. Restrictions
on Actions by Lenders; Sharing of Payments.
(a) Each
of the Lenders agrees that it shall not, without the express written consent of Agent, and that it shall, to the extent it is lawfully
entitled to do so, upon the written request of Agent, set off against the Obligations, any amounts owing by such Lender to any Loan Party
or its Subsidiaries or any deposit accounts of any Loan Party or its Subsidiaries now or hereafter maintained with such Lender.
(b) If,
at any time or times any Lender shall receive (i) by payment, foreclosure, setoff, or otherwise, any payments with respect to the
Obligations, except for any such proceeds or payments received by such Lender from Agent pursuant to the terms of this Agreement, or (ii) payments
from Agent in excess of such Lender's Pro Rata Share of all such distributions by Agent, such Lender promptly shall (A) turn the
same over to Agent, in kind, and with such endorsements as may be required to negotiate the same to Agent, or in immediately available
funds, as applicable, for the account of all of the Lenders and for application to the Obligations in accordance with the applicable provisions
of this Agreement, or (B) purchase, without recourse or warranty, an undivided interest and participation in the Obligations owed
to the other Lenders so that such excess payment received shall be applied ratably as among the Lenders in accordance with their Pro Rata
Shares; provided, that to the extent that such excess payment received by the purchasing party is thereafter recovered from it,
those purchases of participations shall be rescinded in whole or in part, as applicable, and the applicable portion of the purchase price
paid therefor shall be returned to such purchasing party, but without interest except to the extent that such purchasing party is required
to pay interest in connection with the recovery of the excess payment.
15.12. Payments
by Agent to the Lenders. All payments to be made by Agent to the Lenders shall be made by bank wire transfer of immediately available
funds pursuant to such wire transfer instructions as each party may designate for itself by written notice to Agent. Concurrently with
each such payment, Agent shall identify whether such payment (or any portion thereof) represents principal, premium, fees, or interest
of the Obligations.
15.13. Several
Obligations; No Liability. Notwithstanding that certain of the Loan Documents now or hereafter may have been or will be executed
only by or in favor of Agent in its capacity as such, and not by or in favor of the Lenders, any and all obligations on the part of Agent
(if any) to make any credit available hereunder shall constitute the several (and not joint) obligations of the respective Lenders on
a ratable basis (in accordance with their Pro Rata Share), according to their respective Term Loan Commitments, to make an amount of such
credit not to exceed, in principal amount, at any one time outstanding, the amount of their respective Term Loan Commitments. Nothing
contained herein shall confer upon any Lender any interest in, or subject any Lender to any liability for, or in respect of, the business,
assets, profits, losses, or liabilities of any other Lender. Except as provided in Section 15.7, no member of the Lender Group
shall have any liability for the acts of any other member of the Lender Group. No Lender shall be responsible to the Borrower or any other
Person for any failure by any other Lender to fulfill its obligations to make credit available hereunder, nor to advance for such Lender
or on its behalf, nor to take any other action on behalf of such Lender hereunder or in connection with the financing contemplated herein.
-85-
15.14. Erroneous
Payments.
(a) If
the Agent (x) notifies a Lender, or any Person who has received funds on behalf of a Lender (any such Lender or other recipient (and
each of their respective successors and assigns), a “Payment Recipient”) that the Agent has determined in its reasonable
discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice
from the Agent) received by such Payment Recipient from the Agent or any of its Affiliates were erroneously or mistakenly transmitted
to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender or other Payment Recipient
on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution
or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of
such Erroneous Payment (or a portion thereof) (an “Erroneous Payment Demand”) (provided, that, without limiting any
other rights or remedies (whether at law or in equity), the Agent may not make any Erroneous Payment Demand unless such demand is made
within ten (10) Business Days of the date of receipt of such Erroneous Payment by the applicable Payment Recipient), such Erroneous
Payment shall at all times remain the property of the Agent pending its return or repayment as contemplated below in this Section 15.14
and held in trust for the benefit of the Agent, and such Lender (or, with respect to any Payment Recipient who received such funds on
its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date
as the Agent may, in its sole discretion, specify in writing), return to the Agent the amount of any such Erroneous Payment (or portion
thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to
the extent waived in writing by the Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof)
was received by such Payment Recipient to the date such amount is repaid to the Agent in same day funds at the greater of the Federal
Funds Effective Rate and a rate determined by the Agent in accordance with banking industry rules on interbank compensation from
time to time in effect. A notice of the Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest
error.
(b) Without
limiting immediately preceding clause (a), each Lender or any Person who has received funds on behalf of a Lender (and each of their respective
successors and assigns), agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment
of principal, interest, fees, distribution or otherwise) from the Agent (or any of its Affiliates) (x) that is in a different amount
than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Agent
(or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice
of payment, prepayment or repayment sent by the Agent (or any of its Affiliates), or (z) that such Lender, or other such recipient,
otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then in each such case:
(i) it
acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed
to have been made (absent written confirmation from the Agent to the contrary) or (B) an error and mistake has been made (in the
case of immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
-86-
(ii) such
Lender shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives
funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of
the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Agent of its receipt of such payment, prepayment
or repayment, the details thereof (in reasonable detail) and that it is so notifying the Agent pursuant to this clause (b).
For the avoidance of doubt, the failure to deliver
a notice to the Agent pursuant to this clause (b) shall not have any effect on a Payment Recipient’s obligations pursuant to
clause (a) or on whether or not an Erroneous Payment has been made.
(c) Each
Lender hereby authorizes the Agent to set off, net and apply any and all amounts at any time owing to such Lender under this Agreement,
or otherwise payable or distributable by the Agent to such Lender under this Agreement with respect to any payment of principal, interest,
fees or other amounts, against any amount that the Agent has demanded to be returned under immediately preceding clause (a).
(d) The
parties hereto agree that (x) irrespective of whether the Agent may be equitably subrogated, in the event that an Erroneous Payment
(or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any
reason, the Agent shall be subrogated to all the rights and interests of such Payment Recipient (and, in the case of any Payment Recipient
who has received funds on behalf of a Lender, to the rights and interests of such Lender) under the Loan Documents with respect to such
amount (the “Erroneous Payment Subrogation Rights”) and (y) an Erroneous Payment shall not pay, prepay, repay,
discharge, or otherwise satisfy any Obligations owed by the Loan Parties; provided that this Section 15.14 shall not be interpreted
to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of
the Loan Parties relative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous
Payment not been made by the Agent; provided, further, that for the avoidance of doubt, immediately preceding clauses (x) and (y) shall
not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised
of funds received by the Agent from, or on behalf of (including through the exercise of remedies under any Loan Document), the Borrower
for the purpose of making a payment, prepayment, repayment on, or discharging or otherwise satisfying, the Obligations.
(e) To
the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives,
and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim
by the Agent for the return of any Erroneous Payment received, including, without limitation, any defense based on “discharge for
value” or any similar doctrine.
Each party’s obligations,
agreements and waivers under this Section 15.14 shall survive the resignation or replacement of the Agent, any transfer of
rights or obligations by, or the replacement of, a Lender, the termination of the Term Loan Commitments and/or the repayment, satisfaction,
or discharge of all Obligations (or any portion thereof) under any Loan Document.
-87-
16. WITHHOLDING TAXES.
16.1. Payments.
All payments made by or on account of any Obligation of any Loan Party under any Loan Document will be made free and clear of, and without
deduction or withholding for, any Taxes, except as otherwise required by applicable law, and in the event any deduction or withholding
of Taxes is required, the applicable Loan Party shall make the requisite withholding, timely pay over to the applicable Governmental Authority
the withheld Tax in accordance with applicable law, and furnish to Agent as promptly as possible after the date the payment of any such
Tax is due pursuant to applicable law, certified copies of tax receipts or other applicable documentation evidencing such payment by the
Loan Parties. If such Tax is an Indemnified Tax, then the sum payable by the Loan Parties shall be increased as necessary
so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable
under this Section), each Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been
made. Without duplication, the Loan Parties will timely pay any Other Taxes or reimburse Agent for such Other Taxes upon Agent's demand.
Without duplication, the Loan Parties shall jointly and severally indemnify each Indemnified Person (as defined in Section 10.3)
and other Recipient (collectively a "Tax Indemnitee") for the full amount of Indemnified Taxes arising in connection
with this Agreement or any other Loan Document (including any Indemnified Taxes imposed or asserted on, or attributable to, amounts payable
under this Section 16) imposed on, or paid by, such Tax Indemnitee and all reasonable costs and expenses related thereto (including
fees and disbursements of attorneys and other tax professionals), as and when they are incurred and irrespective of whether suit is brought,
whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority (other than
Indemnified Taxes and additional amounts that a court of competent jurisdiction finally determines to have resulted from the gross negligence
or willful misconduct of such Tax Indemnitee). A certificate as to the amount of such payment or liability delivered to the Borrower
by a Tax Indemnitee (with a copy to the Agent), or by the Agent, on its own behalf or on behalf of a Tax Indemnitee, shall be conclusive
absent manifest error. The obligations of the Loan Parties under this Section 16 shall survive the termination of this Agreement,
the resignation and replacement of Agent, and the repayment of the Obligations.
16.2. Exemptions.
(a) Any
Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall
deliver to the Borrower and the Agent, at the time or times reasonably requested by the Borrower or the Agent, such properly completed
and executed documentation reasonably requested by the Borrower or the Agent, as will permit such payments to be made without withholding
or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower or the Agent, shall deliver
such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Agent as will enable the Borrower
and the Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding
anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such
documentation set forth in Section 16.2(b)) shall not be required if in the Lender's reasonable judgment such completion,
execution or submission would subject such Lender or its Affiliates to any unreimbursed cost or expense or would prejudice the legal or
commercial position of such Lender or its Affiliates.
-88-
(b) Without
limiting the generality of the foregoing,
(i) any
Lender that is a U.S. Person shall deliver to the Borrower and Agent on or before the date on which such Lender becomes a Lender
under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or Agent), executed copies of IRS Form W-9
certifying that such Lender is exempt from U.S. federal backup withholding tax;
(ii) any
Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and Agent (in such number of copies as shall
be requested by the recipient) on or before the date on which such Foreign Lender becomes a Lender under this Agreement (and from time
to time thereafter upon the reasonable request of the Borrower or Agent), whichever of the following is applicable:
(A) in
the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect
to payments of interest under any Loan Document, executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption
from, or reduction of, U.S. federal withholding Tax pursuant to the "interest" article of such tax treaty and (y) with
respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or IRS Form W-8BEN-E establishing an
exemption from, or reduction of, U.S. federal withholding Tax pursuant to the "business profits" or "other income"
article of such tax treaty;
(B) executed
copies of IRS Form W-8ECI;
(C) in
the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the IRC,
(x) a certificate substantially in the form of the applicable Exhibit T-1 attached to this Agreement to the effect that
such Foreign Lender is not a "bank" within the meaning of Section 881(c)(3)(A) of the IRC, a "10 percent
shareholder" of the Borrower within the meaning of Section 871(h)(3)(B) of the IRC, or a "controlled foreign corporation"
related to the Borrower as described in Section 881(c)(3)(C) of the IRC and that no payment under any Loan Document is effectively
connected with such Foreign Lender's conduct of a U.S. trade or business (a "U.S. Tax Compliance Certificate") and
(y) executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E; or
(D) to
the extent a Foreign Lender is not the beneficial owner (for example, if such Foreign Lender is a partnership or a participating Lender),
executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, IRS Form W-8BEN-E,
a U.S. Tax Compliance Certificate substantially in the form of the applicable Exhibit T-2 or Exhibit T-3
attached to this Agreement, IRS Form W-9, or other certification documents from each beneficial owner, as applicable; provided
that if the Foreign Lender is a partnership (and not a participating Lender) and one or more direct or indirect partners of such Foreign
Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially
in the form of the applicable Exhibit T-4 attached to this Agreement on behalf of such direct and indirect partner(s);
-89-
(iii) any
Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and Agent (in such number of copies as shall
be requested by the recipient) on or before the date on which such Foreign Lender becomes a Lender under this Agreement (and from time
to time thereafter upon the reasonable request of the Borrower or Agent), executed copies of any other documentation prescribed by applicable
law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary
documentation as may be prescribed by applicable law to permit the Borrower and Agent to determine the withholding or deduction required
to be made; and
(iv) if
a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were
to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of
the IRC, as applicable), such Lender shall deliver to the Borrower and Agent at the time or times prescribed by law and at such time or
times reasonably requested by the Borrower or Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of
the IRC) and such additional documentation reasonably requested by the Borrower or Agent as may be necessary for the Borrower and Agent
to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's obligations under FATCA
or to determine the amount, if any, to deduct and withhold from such payment. Solely for purposes of this clause (iv), "FATCA"
shall include any amendments made to FATCA after the date of this Agreement.
(c) Each
Lender agrees that if any documentation it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update
such documentation or promptly notify the Borrower and Agent in writing of its legal inability to do so.
16.3. Reductions.
(a) If
a Lender is subject to an applicable withholding tax, Agent may withhold from any payment to such Lender an amount equivalent to the applicable
withholding tax. If the forms or other documentation required by Section 16.2(a) or 16.2(c) are not delivered
to Agent, then Agent may withhold from any payment to such Lender not providing such forms or other documentation an amount equivalent
to the applicable withholding tax.
(b) If
the IRS or any other Governmental Authority of the United States or other jurisdiction asserts a claim that Agent did not properly withhold
tax from amounts paid to or for the account of any Lender due to a failure on the part of the Lender (because the appropriate form was
not delivered, was not properly executed, or because such Lender failed to notify Agent of a change in circumstances which rendered the
exemption from, or reduction of, withholding tax ineffective, or for any other reason) such Lender shall indemnify and hold Agent harmless
for all amounts paid, directly or indirectly, by Agent, as tax or otherwise, including penalties and interest, and including any taxes
imposed by any jurisdiction on the amounts payable to Agent under this Section 16, together with all costs and expenses (including
attorneys' fees and expenses). The obligation of the Lenders under this subsection shall survive the payment of all Obligations and the
resignation or replacement of Agent.
-90-
16.4. Refunds.
If Agent or a Lender determines, in its sole discretion, that it has received a refund of any Indemnified Taxes to which the Loan Parties
have paid additional amounts pursuant to this Section 16, so long as no Default or Event of Default has occurred and is continuing,
it shall pay over such refund to the Borrower on behalf of the Loan Parties (but only to the extent of payments made, or additional amounts
paid, by the Loan Parties under this Section 16 with respect to Indemnified Taxes giving rise to such a refund), net of all
out-of-pocket expenses of Agent or such Lender and without interest (other than any interest paid by the applicable Governmental Authority
with respect to such a refund); provided, that the Loan Parties, upon the request of Agent or such Lender, agrees to repay the
amount paid over to the Loan Parties (plus any penalties, interest or other charges, imposed by the applicable Governmental Authority,
other than such penalties, interest or other charges imposed as a result of the willful misconduct or gross negligence of Agent or Lender
hereunder as finally determined by a court of competent jurisdiction) to Agent or such Lender in the event Agent or such Lender is required
to repay such refund to such Governmental Authority. Notwithstanding anything in this Agreement to the contrary, this Section 16
shall not be construed to require Agent or any Lender to make available its tax returns (or any other information which it deems confidential)
to Loan Parties or any other Person or require Agent or any Lender to pay any amount to an indemnifying party pursuant to this Section 16.4,
the payment of which would place Agent or such Lender (or their Affiliates) in a less favorable net after-Tax position than such Person
would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed
and the indemnification payments or additional amounts with respect to such Tax had never been paid.
16.5. Administrative
Agent. Agent shall deliver to the Borrower on or prior to the date on which Agent first becomes an Agent hereunder, whichever
of the following is applicable, (A) if Agent is a U.S. Person, two copies of a properly completed and executed IRS Form W-9
certifying its exemption from U.S. federal backup withholding or (B) if Agent is not a U.S. Person, with respect to payments received
by Agent for its own account, an IRS Form W-8ECI and, with respect to payments received by Agent on behalf of a Lender, (x) an
IRS Form W-8IMY certifying that Agent is a U.S. branch and intends to be treated as a U.S. person for purposes of withholding under
Chapter 3 of the IRC pursuant to Section 1.1441-1(b)(2)(iv) of the Treasury Regulations with respect to payments received by
it from Borrower, or (y) an IRS Form W-8IMY certifying that it is a qualified intermediary that has assumed withholding and
reporting obligations for purposes of Chapter 3 of the IRC and IRS Form 1099 reporting and backup withholding responsibility for
each Lender that it is acting on behalf of. If any documentation previously delivered to the Borrower by Agent pursuant to this Section 16.5
expires or becomes obsolete or inaccurate in any respect, Agent shall update such documentation or promptly notify the Borrower in writing
of its legal ineligibility to do so.
17. GENERAL PROVISIONS.
17.1. Effectiveness.
This Agreement shall be binding and deemed effective when executed by Borrower, Agent, and each Lender whose signature is provided for
on the signature pages hereof.
-91-
17.2. Section Headings.
Headings and numbers have been set forth herein for convenience only. Unless the contrary is compelled by the context, everything contained
in each Section applies equally to this entire Agreement.
17.3. Interpretation.
Neither this Agreement nor any uncertainty or ambiguity herein shall be construed against the Lender Group or the Borrower, whether under
any rule of construction or otherwise. On the contrary, this Agreement has been reviewed by all parties and shall be construed and
interpreted according to the ordinary meaning of the words used so as to accomplish fairly the purposes and intentions of all parties
hereto.
17.4. Severability
of Provisions. Each provision of this Agreement shall be severable from every other provision of this Agreement for the purpose
of determining the legal enforceability of any specific provision.
17.5. [Reserved].
17.6. Debtor-Creditor
Relationship. The relationship between the Lenders and Agent, on the one hand, and the Loan Parties, on the other hand, is solely
that of creditor and debtor. No member of the Lender Group has (or shall be deemed to have) any fiduciary relationship or duty to any
Loan Party arising out of or in connection with the Loan Documents or the transactions contemplated thereby, and there is no agency or
joint venture relationship between the members of the Lender Group, on the one hand, and the Loan Parties, on the other hand, by virtue
of any Loan Document or any transaction contemplated therein.
17.7. Counterparts;
Electronic Execution. This Agreement may be executed in any number of counterparts and by different parties on separate counterparts,
each of which, when executed and delivered, shall be deemed to be an original, and all of which, when taken together, shall constitute
but one and the same Agreement. Delivery of an executed counterpart of this Agreement by telefacsimile or other electronic method of transmission
shall be equally as effective as delivery of an original executed counterpart of this Agreement. Any party delivering an executed counterpart
of this Agreement by telefacsimile or other electronic method of transmission also shall deliver an original executed counterpart of this
Agreement but the failure to deliver an original executed counterpart shall not affect the validity, enforceability, and binding effect
of this Agreement. Each party agrees that the electronic signatures, whether digital or encrypted, of the parties included in this Agreement
are intended to authenticate this writing and to have the same force and effect as manual signatures. Electronic Signature means any electronic
sound, symbol, or process attached to or logically associated with a record and executed and adopted by a party with the intent to sign
such record, including facsimile or email electronic signatures pursuant to the New York Electronic Signatures and Records Act (N.Y. State
Tech. §§ 301-309) as amended from time to time or as provided under the Uniform Commercial Code as adopted by the State of New
York. The foregoing shall apply to each other Loan Document mutatis mutandis. The Borrower agrees to assume all risks arising out of the
use of such electronic methods to submit instructions and directions to the Agent, including without limitation the risk of the Agent
acting on unauthorized instructions, and the risk of interception and misuse by third parties.
-92-
17.8. Revival
and Reinstatement of Obligations. If any member of the Lender Group repays, refunds, restores, or returns in whole or in part,
any payment or property previously paid or transferred to such member of the Lender Group in full or partial satisfaction of any Obligation
or on account of any other obligation of any Loan Party under any Loan Document, because the payment, transfer, or the incurrence of the
obligation so satisfied is asserted or declared to be void, voidable, or otherwise recoverable under any law relating to creditors' rights,
including provisions of the Bankruptcy Code relating to fraudulent transfers, preferences, or other voidable or recoverable obligations
or transfers (each, a "Voidable Transfer"), or because such member of the Lender Group elects to do so on the reasonable
advice of its counsel in connection with a claim that the payment, transfer, or incurrence is or may be a Voidable Transfer, then, as
to any such Voidable Transfer, or the amount thereof that such member of the Lender Group elects to repay, restore, or return (including
pursuant to a settlement of any claim in respect thereof), and as to all reasonable costs, expenses, and attorneys' fees of such member
of the Lender Group related thereto, the liability of the Loan Parties with respect to the amount or property paid, refunded, restored,
or returned will automatically and immediately be revived, reinstated, and restored and will exist. If, prior to any of the foregoing,
any provision of this Agreement shall have been terminated or cancelled, such provision shall be reinstated in full force and effect and
such prior release, termination, cancellation or surrender shall not diminish, release, discharge, impair or otherwise affect the obligation
of any Loan Party in respect of such liability. This provision shall survive the termination of this Agreement and the repayment in full
of the Obligations.
17.9. Confidentiality.
(a) Agent
and Lenders each individually (and not jointly or jointly and severally) agree that material non-public information regarding the Loan
Parties and their Subsidiaries, their operations, assets, and existing and contemplated business plans ("Confidential Information")
shall be treated by Agent and the Lenders in a confidential manner, and shall not be disclosed by Agent and the Lenders to Persons who
are not parties to this Agreement, except: (i) to attorneys for and other advisors, accountants, auditors, and consultants to any
member of the Lender Group and to employees, directors and officers of any member of the Lender Group (the Persons in this clause (i),
"Lender Group Representatives") on a "need to know" basis in connection with this Agreement and the transactions
contemplated hereby and on a confidential basis, (ii) to Subsidiaries and Affiliates of any member of the Lender Group; provided,
that any such Subsidiary or Affiliate shall have agreed to receive such information hereunder subject to the terms of this Section 17.9,
(iii) as may be required by regulatory authorities and, if practicable to do so and to the extent permitted, such disclosing party
will inform such authorities of the confidential nature of such information, (iv) as may be required by statute, decision, or judicial
or administrative order, rule, or regulation; provided, that (x) prior to any disclosure under this clause (iv), the disclosing
party agrees to provide Borrower with prior notice thereof, to the extent that it is practicable to do so and to the extent that the disclosing
party is permitted to provide such prior notice to Borrower pursuant to the terms of the applicable statute, decision, or judicial or
administrative order, rule, or regulation and (y) any disclosure under this clause (iv) shall be limited to the portion of the
Confidential Information as may be required by such statute, decision, or judicial or administrative order, rule, or regulation, (v) as
may be agreed to in advance in writing by Borrower, (vi) as requested or required by any Governmental Authority pursuant to any subpoena
or other legal process; provided, that (x) prior to any disclosure under this clause (vi) the disclosing party agrees
to provide Borrower with prior written notice thereof, to the extent that it is practicable to do so and to the extent that the disclosing
party is permitted to provide such prior written notice to Borrower pursuant to the terms of the subpoena or other legal process and (y) any
disclosure under this clause (vi) shall be limited to the portion of the Confidential Information as may be required by such Governmental
Authority pursuant to such subpoena or other legal process, (vii) as to any such information that is or becomes generally available
to the public (other than as a result of prohibited disclosure by Agent or the Lenders or the Lender Group Representatives), (viii) in
connection with any assignment, participation or pledge of any Lender's interest under this Agreement; provided, that prior to
receipt of Confidential Information any such assignee, participant, or pledgee shall have agreed in writing to receive such Confidential
Information either subject to the terms of this Section 17.9 or pursuant to confidentiality requirements substantially similar
to those contained in this Section 17.9 (and such Person may disclose such Confidential Information to Persons employed or
engaged by them as described in clause (i) above), (ix) in connection with any litigation or other adversary proceeding involving
parties hereto which such litigation or adversary proceeding involves claims related to the rights or duties of such parties under this
Agreement or the other Loan Documents; provided, that prior to any disclosure to any Person (other than any Loan Party, Agent,
any Lender, any of their respective Affiliates, or their respective counsel) under this clause (ix) with respect to litigation involving
any Person (other than the Borrower, Agent, any Lender, any of their respective Affiliates, or their respective counsel), the disclosing
party agrees to provide Borrower with prior written notice thereof, and (x) in connection with, and to the extent reasonably necessary
for, the exercise of any secured creditor remedy under this Agreement or under any other Loan Document.
-93-
(b) Anything
in this Agreement to the contrary notwithstanding, Agent may disclose information concerning the terms and conditions of this Agreement
and the other Loan Documents to loan syndication and pricing reporting services or in its marketing or promotional materials, with such
information to consist of deal terms and other information customarily found in such publications or marketing or promotional materials
and may otherwise use the name, logos, and other insignia of the Borrower or the other Loan Parties and the Term Loan Commitments provided
hereunder in any "tombstone" or other advertisements, on its website or in other marketing materials of Agent.
(c) Each
Loan Party agrees that Agent may make materials or information provided by or on behalf of Borrower hereunder (collectively, "Borrower
Materials") available to the Lenders. Agent does not warrant the accuracy or completeness of the Borrower Materials, and expressly
disclaim liability for errors or omissions in any communications of the same. No warranty of any kind, express, implied or statutory,
including any warranty of merchantability, fitness for a particular purpose, non-infringement of third party rights or freedom from viruses
or other code defects, is made by Agent in connection with the Borrower Materials. In no event shall Agent or any of the Agent-Related
Persons have any liability to the Loan Parties, any Lender or any other person for damages of any kind, including direct or indirect,
special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of any Loan Party's
or Agent's transmission of communications through the Internet, except to the extent the liability of such person is found in a final
non-appealable judgment by a court of competent jurisdiction to have resulted from such person's gross negligence or willful misconduct.
Each Loan Party further agrees that certain of the Lenders may be "public-side" Lenders (i.e., Lenders that do not wish to receive
material non-public information with respect to the Loan Parties or their securities. The Loan Parties shall be deemed to have authorized
Agent and its Affiliates and the Lenders to treat Borrower Materials marked "PUBLIC" or otherwise at any time filed with the
SEC or applicable securities regulators in Canada as not containing any material non-public information with respect to the Loan Parties
or their securities for purposes of United States federal and state or Canadian securities laws. Agent and its Affiliates and the Lenders
shall be entitled to treat any Borrower Materials that are not marked "PUBLIC" or that are not at any time filed with the SEC
as being suitable only for posting on a portion of the platform not marked as "Public Investor" (or such other similar term).
-94-
17.10. Survival.
All representations and warranties made by the Loan Parties in the Loan Documents and in the certificates or other instruments delivered
in connection with or pursuant to this Agreement or any other Loan Document shall be considered to have been relied upon by the other
parties hereto and shall survive the execution and delivery of the Loan Documents and the making of any Loans, regardless of any investigation
made by any such other party or on its behalf and notwithstanding that Agent or any Lender may have had notice or knowledge of any Default
or Event of Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force
and effect as long as the principal of, or any accrued interest on, any Loan or any fee or any other amount payable under this Agreement
is outstanding or unpaid and so long as the Term Loan Commitments have not expired or been terminated.
17.11. Patriot
Act; Due Diligence. Each Lender that is subject to the requirements of the Patriot Act and Canadian AML Laws hereby notifies the
Loan Parties that pursuant to the requirements of the Patriot Act and Canadian AML Laws, it is required to obtain, verify and record information
that identifies each Loan Party, which information includes the name and address of each Loan Party and other information that will allow
such Lender to identify each Loan Party in accordance with the Patriot Act. In addition, Agent and each Lender shall have the right to
periodically conduct due diligence on all Loan Parties, their senior management and key principals and legal and beneficial owners. Each
Loan Party agrees to cooperate in respect of the conduct of such due diligence. If (a) the introduction of or any change in (or in
the interpretation, administration or application of) any law or regulation made after the date of this Agreement; (b) any change
in the status of a UK Loan Party after the date of this Agreement; or (c) any law, regulation, applicable market guidance or internal
policy in relation to the period review and/or updating of customer information obliges the Agent or any other member of the Lender Group
to comply with "know your customer" or similar identification procedures in circumstances where the necessary information is
not already available to it, each UK Loan Party shall promptly upon the request of the Agent or other member of the Lender Group supply,
or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent or other member of the Lender
Group in order for the Agent or other member of the Lender Group to carry out and be satisfied it has complied with all necessary "know
your customer" or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the
Loan Documents.
17.12. Integration.
This Agreement, together with the other Loan Documents, reflects the entire understanding of the parties with respect to the transactions
contemplated hereby and shall not be contradicted or qualified by any other agreement, oral or written, before the date hereof.
17.13. UK
Loan Party Limitations. Notwithstanding anything to the contrary contained in this Agreement (including the Guaranty) or in any
other Loan Document, it is acknowledged and agreed that no obligations and/or liabilities of any UK Loan Party under or in connection
with any Loan Document (including any Guarantied Obligations or Lien granted by a UK Loan Party) the (“UK Loan Party Obligations”)
will extend to include any obligation or liability to the extent that doing so would result in it constituting unlawful financial assistance
in any relevant jurisdiction (including within the meaning of sections 678 or 679 of the Companies Act 2006) as applicable to UK Loan
Parties.
-95-
18. GUARANTY.
18.1 In
recognition of the direct and indirect benefits to be received by Guarantors from the proceeds of the Loans and by virtue of the financial
accommodations to be made to Borrower, each of the Guarantors, jointly and severally, hereby unconditionally and irrevocably guarantees
as a primary obligor and not merely as a surety the full and prompt payment when due, whether upon maturity, acceleration, or otherwise,
of all of the Guarantied Obligations. If any or all of the Obligations constituting Guarantied Obligations become due and payable, each
of the Guarantors, unconditionally and irrevocably, and without the need for demand, protest, or any other notice or formality, promises
to pay such indebtedness to Agent, for the benefit of the Lender Group, together with any and all expenses that may be incurred by Agent
or any other member of the Lender Group in demanding, enforcing, or collecting any of the Guarantied Obligations. If claim is ever made
upon Agent or any other member of the Lender Group for repayment or recovery of any amount or amounts received in payment of or on account
of any or all of the Guarantied Obligations and any of Agent or any other member of the Lender Group repays all or part of said amount
by reason of (i) any judgment, decree, or order of any court or administrative body having jurisdiction over such payee or any of
its property, or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including Borrower
or any Guarantor), then and in each such event, each of the Guarantors agrees that any such judgment, decree, order, settlement, or compromise
shall be binding upon the Guarantors, notwithstanding any revocation (or purported revocation) of this Guaranty or other instrument evidencing
any liability of any Guarantor, and the Guarantors shall be and remain liable to the aforesaid payees hereunder for the amount so repaid
or recovered to the same extent as if such amount had never originally been received by any such payee.
18.2 Each
of the Guarantors unconditionally and irrevocably guarantees the payment of any and all of the Guarantied Obligations to Agent, for the
benefit of the Lender Group, whether or not due or payable by any Loan Party upon the occurrence of any of the events specified in Section 8.4
or 8.5 of the Credit Agreement, and irrevocably and unconditionally promises to pay such indebtedness to Agent, for the benefit
of the Lender Group, without the requirement of demand, protest, or any other notice or other formality, in lawful money of the United
States.
18.3 The
liability of each of the Guarantors hereunder is primary, absolute, and unconditional, and is independent of any security for or other
guaranty of the Guarantied Obligations, whether executed by any other Guarantor or by any other Person, and the liability of each of the
Guarantors hereunder shall not be affected or impaired by (i) any payment on, or in reduction of, any such other guaranty or undertaking
(other than payment in full of the Guarantied Obligations), (ii) any dissolution, termination, or increase, decrease, or change in
personnel by any Guarantor, (iii) any payment made to Agent or any other member of the Lender Group on account of the Obligations
which Agent or such other member of the Lender Group repays to any Guarantor pursuant to court order in any bankruptcy, reorganization,
arrangement, moratorium or other debtor relief proceeding (or any settlement or compromise of any claim made in such a proceeding relating
to such payment), and each of the Guarantors waives any right to the deferral or modification of its obligations hereunder by reason of
any such proceeding, (iv) any action or inaction by Agent or any other member of the Lender Group or (v) any invalidity, irregularity,
avoidability, or unenforceability of all or any part of the Obligations or of any security therefor, other than, in each case, payment
in full of the Obligations.
-96-
18.4 This
Guaranty includes all present and future Guarantied Obligations including any under transactions continuing, compromising, extending,
increasing, modifying, releasing, or renewing the Guarantied Obligations, changing the interest rate, payment terms, or other terms and
conditions thereof, or creating new or additional Guarantied Obligations after prior Guarantied Obligations have been satisfied in whole
or in part. To the maximum extent permitted by law, each Guarantor hereby waives any right to revoke this Guaranty as to future Guarantied
Obligations. If such a revocation is effective notwithstanding the foregoing waiver, each Guarantor acknowledges and agrees that (i) no
such revocation shall be effective until written notice thereof has been received by Agent, (ii) no such revocation shall apply to
any Guarantied Obligations in existence on the date of receipt by Agent of such written notice (including any subsequent continuation,
extension, or renewal thereof, or change in the interest rate, payment terms, or other terms and conditions thereof), (iii) no such
revocation shall apply to any Guarantied Obligations made or created after such date to the extent made or created pursuant to a legally
binding commitment of any member of the Lender Group in existence on the date of such revocation, (iv) no payment by any Guarantor,
the Borrower, or from any other source, prior to the date of Agent's receipt of written notice of such revocation shall reduce the maximum
obligation of such Guarantor hereunder, and (v) any payment by the Borrower or from any source other than such Guarantor subsequent
to the date of such revocation shall first be applied to that portion of the Guarantied Obligations as to which the revocation is effective
and which are not, therefore, guaranteed hereunder, and to the extent so applied shall not reduce the maximum obligation of such Guarantor
hereunder. This Guaranty shall be binding upon each Guarantor, its successors and assigns and inure to the benefit of and be enforceable
by Agent (for the benefit of the Lender Group) and its successors or permitted assigns.
18.5 The
guaranty by each of the Guarantors hereunder is a guaranty of payment and not of collection. The obligations of each of the Guarantors
hereunder are independent of the obligations of any other Guarantor or any other Person and a separate action or actions may be brought
and prosecuted against one or more of the Guarantors whether or not an action is brought against any other Guarantor or any other Person
and whether or not any other Guarantor or any other Person be joined in any such action or actions. Each of the Guarantors waives, to
the fullest extent permitted by law, the benefit of any statute of limitations affecting its liability hereunder or the enforcement hereof.
Any payment by any Guarantor or other circumstance which operates to toll any statute of limitations as to any Guarantor shall operate
to toll the statute of limitations as to each of the Guarantors.
18.6 Each
of the Guarantors authorizes Agent and the other members of the Lender Group without notice or demand (other than any notice expressly
required to be provided hereunder or under any other Loan Document and in each case in accordance with any applicable terms and conditions
hereof or any other applicable Loan Document), and without affecting or impairing its liability hereunder, from time to time to:
(a) change
the manner, place, or terms of payment of, or change or extend the time of payment of, renew, increase, accelerate, or alter: (A) any
of the Obligations (including any increase or decrease in the principal amount thereof or the rate of interest or fees thereon), or (B) any
security therefor or any liability incurred directly or indirectly in respect thereof, and this Guaranty shall apply to the Obligations
as so changed, extended, renewed, or altered;
-97-
(b) [reserved];
(c) exercise
or refrain from exercising any rights against any Guarantor;
(d) release
or substitute any one or more endorsers, guarantors, any Guarantor, or other obligors;
(e) settle
or compromise any of the Obligations, any security therefor, or any liability (including any of those of any of the Guarantors under this
Guaranty) incurred directly or indirectly in respect thereof or hereof, and may subordinate the payment of all or any part thereof to
the payment of any liability (whether due or not) of any Guarantor to its creditors;
(f) apply
any sums by whomever paid or however realized to any liability or liabilities of any Guarantor to Agent or any other member of the Lender
Group regardless of what liability or liabilities of such Guarantor remain unpaid;
(g) consent
to or waive any breach of, or any act, omission, or default under, this Agreement, any other Loan Document or any of the instruments or
agreements referred to herein or therein, or otherwise amend, modify, or supplement this Agreement, any other Loan Document, or any of
such other instruments or agreements; or
(h) take
any other action that could, under otherwise applicable principles of law, give rise to a legal or equitable discharge of one or more
of the Guarantors from all or part of its liabilities under this Guaranty (other than a defense of payment in full of the Guarantied Obligations).
18.7 It
is not necessary for Agent or any other member of the Lender Group to inquire into the capacity or powers of any of the Guarantors or
the officers, directors, partners or agents acting or purporting to act on their behalf, and any Obligations made or created in reliance
upon the professed exercise of such powers shall be guaranteed hereunder.
18.8 Each
Guarantor jointly and severally guarantees that the Guarantied Obligations will be paid strictly in accordance with the terms of the Loan
Documents, regardless of any law, regulation, or order now or hereafter in effect in any jurisdiction affecting any of such terms or the
rights of any member of the Lender Group with respect thereto. The obligations of each Guarantor under this Guaranty are independent of
the Guarantied Obligations, and a separate action or actions may be brought and prosecuted against each Guarantor to enforce such obligations,
irrespective of whether any action is brought against any other Guarantor or whether any other Guarantor is joined in any such action
or actions. The liability of each Guarantor under this Guaranty shall be absolute and unconditional irrespective of, and each Guarantor
hereby irrevocably waives, to the fullest extent permitted by applicable law, any defense it may now or hereafter have in any way relating
to, any or all of the following:
(a) any
lack of validity or enforceability of any Loan Document or any agreement or instrument relating thereto;
-98-
(b) any
change in the time, manner, or place of payment of, or in any other term of, all or any of the Guarantied Obligations, or any other amendment
or waiver of or any consent to departure from any Loan Document, including any increase in the Guarantied Obligations resulting from the
extension of additional credit;
(c) any
taking, release, amendment, waiver, supplement, restatements, extension, novation, renewal, replacements, or continuation of, or consent
to departure from any other guaranty, for all or any of the Guarantied Obligations;
(d) the
existence of any claim, set-off, defense (other than the defense that the Guarantied Obligations have been paid in full), or other right
that any Guarantor may have at any time against any Person, including Agent or any other member of the Lender Group;
(e) any
defense, set-off, counterclaim, or claim, of any kind or nature, arising directly or indirectly from the present or future lack of perfection,
sufficiency, validity, or enforceability of the Guarantied Obligations or any security therefor;
(f) any
right or defense arising by reason of any claim or defense based upon an election of remedies by any member of the Lender Group including
any defense based upon an impairment or elimination of such Guarantor's rights of subrogation, reimbursement, contribution, or indemnity
of such Guarantor against any Guarantor or any other guarantors or sureties;
(g) any
change, restructuring, or termination of the corporate, limited liability company, partnership or other relevant structure or existence
of any Guarantor; or
(h) any
other circumstance that might otherwise constitute a defense available to, or a discharge of, any Guarantor or any other guarantor or
surety.
18.9. Waivers.
(a) Each
of the Guarantors waives any right (except as shall be required by applicable law and cannot be waived) to require Agent or any other
member of the Lender Group to (A) proceed against any other Guarantor or any other Person, (B) proceed against or exhaust any
security held from any other Guarantor or any other Person, or (C) [reserved], or (D) pursue any other remedy in any member
of the Lender Group's power whatsoever. Each of the Guarantors waives any defense based on or arising out of any defense of any Guarantor
or any other Person, other than payment of the Guarantied Obligations to the extent of such payment, based on or arising out of the disability
of any Guarantor or any other Person, or the validity, legality, or unenforceability of the Obligations or any part thereof from any cause,
or the cessation from any cause of the liability of any Guarantor other than payment of the Obligations to the extent of such payment.
-99-
(b) To
the fullest extent permitted by applicable law, each of the Guarantors waives all presentments, demands for performance, protests and
notices, including notices of nonperformance, notices of protest, notices of dishonor, notices of acceptance of this Guaranty, and notices
of the existence, creation, or incurring of new or additional Obligations or other financial accommodations. Each of the Guarantors waives
notice of any Default or Event of Default under any of the Loan Documents. Each of the Guarantors assumes all responsibility for being
and keeping itself informed of each Guarantor’s financial condition and assets and of all other circumstances bearing upon the risk
of nonpayment of the Obligations and the nature, scope, and extent of the risks which each of the Guarantors assumes and incurs hereunder,
and agrees that neither Agent nor any of the other members of the Lender Group shall have any duty to advise any of the Guarantors of
information known to them regarding such circumstances or risks.
(c) To
the fullest extent permitted by applicable law, each Guarantor hereby waives: (A) any right to assert against Agent or any member
of the Lender Group, any defense (legal or equitable) (other than the defense that all of the Guarantied Obligations have been paid in
full), set-off, counterclaim, or claim which each Guarantor may now or at any time hereafter have against Borrower or any other party
liable to Agent or any member of the Lender Group, (B) any defense, set-off, counterclaim, or claim, of any kind or nature, arising
directly or indirectly from the present or future lack of perfection, sufficiency, validity, or enforceability of the Guarantied Obligations
or any security therefor, (C) any right or defense arising by reason of any claim or defense based upon an election of remedies by
Agent or any member of the Lender Group including any defense based upon an impairment or elimination of such Guarantor's rights of subrogation,
reimbursement, contribution, or indemnity of such Guarantor against Borrower or other guarantors or sureties, and (D) the benefit
of any statute of limitations affecting such Guarantor's liability hereunder or the enforcement thereof, and any act which shall defer
or delay the operation of any statute of limitations applicable to the Guarantied Obligations shall similarly operate to defer or delay
the operation of such statute of limitations applicable to such Guarantor's liability hereunder.
(d) No
Guarantor will exercise any rights that it may now or hereafter acquire against any Guarantor or any other guarantor that arise from the
existence, payment, performance or enforcement of such Guarantor's obligations under this Guaranty, including any right of subrogation,
reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of Agent or any other
member of the Lender Group against any Guarantor or any other guarantor, whether or not such claim, remedy or right arises in equity or
under contract, statute or common law, including the right to take or receive from any Guarantor or any other guarantor, directly or indirectly,
in cash or other property or by set-off or in any other manner, payment or security solely on account of such claim, remedy or right,
unless and until all of the Guarantied Obligations and all other amounts payable under this Guaranty shall have been paid in full in cash.
If any amount shall be paid to any Guarantor in violation of the immediately preceding sentence, such amount shall be held in trust for
the benefit of Agent, for the benefit of the Lender Group, and shall forthwith be paid to Agent to be credited and applied to the Guarantied
Obligations and all other amounts payable under this Guaranty, whether matured or unmatured, in accordance with the terms of this Agreement.
Notwithstanding anything to the contrary contained in this Guaranty, no Guarantor may exercise any rights of subrogation, contribution,
indemnity, reimbursement or other similar rights against, and may not proceed or seek recourse against or with respect to any property
or asset of, any other Guarantor (the "Foreclosed Guarantor"), including after payment in full of the Obligations, if
all or any portion of the Obligations have been satisfied in connection with an exercise of remedies in respect of the Equity Interests
of such Foreclosed Guarantor whether pursuant to this Agreement or otherwise.
-100-
19. SUBORDINATION AGREEMENT.
This Agreement and the rights
and obligations evidenced hereby are subordinate in the manner and to the extent set forth in the Subordination Agreement, to the Senior
Credit Agreement Obligations and to any Indebtedness refinancing Senior Credit Agreement Obligations; and each Lender, by its acceptance
hereof, irrevocably agrees to be bound by the provisions of the Subordination Agreement
[Remainder of Page Intentionally Left Blank;
Signature Pages Follow.]
-101-
EXHIBIT E
Consent and Amendment No. 2 to Subordination
and Intercreditor Agreement
(see attached)
CONSENT AND AMENDMENT NO. 2 TO
SUBORDINATION AND INTERCREDITOR AGREEMENT
THIS
CONSENT AND AMENDMENT NO. 2 TO SUBORDINATION AND INTERCREDITOR AGREEMENT (this "Agreement") is entered into as
of June 14, 2026 by and among U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Subordinated Agent for the Subordinated Lenders
party to the Subordinated Credit Agreement, each Subordinated Lender party hereto, COMTECH TELECOMMUNICATIONS CORP., a Delaware corporation
("Comtech"; Comtech and each other Person party to the Senior Credit Agreement as a "Borrower" are collectively
the "Borrowers" and individually a "Borrower"), each other Person party hereto that is a "Guarantor"
under the Senior Debt Documents (collectively, "Guarantors" and each a "Guarantor"; Borrowers, Guarantors
and each other Person party to the Senior Debt Documents as a "Loan Party" or that is party to the Subordinated Debt Documents
as a guarantor or obligor are collectively the "Companies" and individually a "Company"), and TCW ASSET
MANAGEMENT COMPANY LLC, as Agent for all Senior Lenders party to the Senior Credit Agreement described below and all Bank Product Providers.
WITNESSETH:
WHEREAS,
Subordinated Agent, Subordinated Lenders, Agent and Companies are parties to that certain Subordination and Intercreditor Agreement dated
as of October 17, 2024 (as amended, supplemented or otherwise modified from time to time, the "Subordination Agreement";
capitalized terms used herein and not otherwise defined have the meanings assigned to such terms in the Subordination Agreement);
WHEREAS, on the date hereof,
Borrowers, Agent and Senior Lenders are entering into a certain Consent and Amendment No. 4 to Credit Agreement (the "Senior
Credit Agreement Amendment"); and
WHEREAS, on the date hereof,
Borrowers, the other Companies party thereto, Subordinated Agent and Subordinated Lenders are entering into a certain Consent and Amendment
No. 3 to Subordinated Credit Agreement (the "Subordinated Credit Agreement Amendment").
NOW THEREFORE, in consideration
of the mutual agreements, provisions and covenants contained herein, the parties hereto agree as follows:
1. Consent.
Notwithstanding anything in the Subordination Agreement to the contrary, (a) each Subordinated Agent and each Subordinated Lender
hereby acknowledges receipt of a copy of the Senior Credit Agreement Amendment and consents to the terms thereof and (b) Agent and
each Senior Lender hereby acknowledges receipt of a copy of the Subordinated Credit Agreement Amendment and consents to the terms thereof.
2. Amendments
to Subordination Agreement. The Subordination Agreement is hereby amended by amending and restating Section 2.3 in its entirety
as follows:
2.3 Subordinated
Debt Payment Restrictions. Notwithstanding the terms of the Subordinated Debt Documents, each Company hereby agrees that it may not
make, and each Subordinated Creditor hereby agrees that it will not accept, any Distribution with respect to the Subordinated Debt until
the Senior Debt is paid in full (other than (i) a Distribution of Reorganization Subordinated Securities if Subordinated Agent,
Subordinated Creditors and Agent shall have entered into such supplements to or modifications to this Agreement as Agent may reasonably
request to reflect the continued subordination of the Reorganization Subordinated Securities to the Senior Debt (or notes or other securities
issued in substitution of all or a portion thereof) to the same extent as provided herein or (ii) to payments on account of principal
of Subordinated Debt solely to the extent consisting of, and in an amount not to exceed, 35% of the Net Cash Proceeds (as defined in
the Senior Credit Agreement) from the Specified Permitted Individual Disposition (as defined in the Senior Credit Agreement on the Amendment
No. 4 Closing Date (as defined in the Senior Credit Agreement) and as in effect on the Amendment No. 4 Closing Date (as defined
in the Senior Credit Agreement)) in accordance with the Senior Credit Agreement as in effect on the Amendment No. 4 Closing
Date (as defined in the Senior Credit Agreement).
3. References.
Any references to the Subordination Agreement in any document, agreement or instrument executed in connection with the Senior Credit
Agreement or the Subordinated Credit Agreement shall be deemed to be a reference to the Subordination Agreement, as modified by this
Agreement.
4. Counterparts.
This Agreement may be executed in any number of counterparts and by the different parties hereto on separate counterparts and each
such counterpart shall be deemed to be an original, but all such counterparts shall together constitute but one and the same Agreement.
Receipt by telecopy of any executed signature page to this Agreement shall constitute effective delivery of such signature page.
This Agreement to the extent signed and delivered by means of a facsimile machine or other electronic transmission (including "pdf"),
shall be treated in all manner and respects and for all purposes as an original agreement and shall be considered to have the same binding
legal effect as if it were the original signed version thereof delivered in person. No party hereto shall raise the use of a facsimile
machine or other electronic transmission to deliver a signature or the fact that any signature or agreement or amendment was transmitted
or communicated through the use of a facsimile machine or other electronic transmission as a defense to the formation or enforceability
of a contract and each such party forever waives any such defense.
5. Effect.
The terms and provisions set forth in this Agreement shall modify and supersede all inconsistent terms and provisions of the Subordination
Agreement and shall not be deemed to be a consent to the modification or waiver of any other term or condition of the Subordination Agreement.
Except as expressly modified and superseded by this Agreement, the terms and provisions of the Subordination Agreement are ratified and
confirmed and shall continue in full force and effect.
6. APPLICABLE
LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
[signature pages follow]
-2-
EX-10.3 — EXHIBIT 10.3
EX-10.3
Filename: tm2617923d1_ex10-3.htm · Sequence: 7
Exhibit 10.3
FIRST AMENDMENT
TO REGISTRATION RIGHTS AGREEMENT
This
First Amendment to Registration Rights Agreement (this “Amendment”) is entered into as of June 14, 2026, by and
among Comtech Telecommunications Corp., a Delaware corporation (the “Company”), and the entities named on the signature
pages to this Amendment (each, an “Investor” and collectively, the “Investors”). Capitalized
terms used but not defined elsewhere herein are defined in the Registration Rights Agreement (as defined below).
Whereas,
the Company and Investors are party to that certain Registration Rights Agreement, dated as of March 3, 2025 (the “Registration
Rights Agreement”);
WHEREas,
on the date hereof, the Company is issuing warrants to purchase shares of the Company’s Common
Stock to certain investors parties to the Registration Rights Agreement pursuant to that certain Subordinated Credit Agreement, dated
as of October 17, 2024 (as may be amended, restated, amended and restated, supplemented or otherwise modified from time to time
in accordance with the terms thereof), by and among the Company, the lenders party thereto and U.S. Bank Trust Company, National Association,
as Administrative Agent, as amended (the “New Warrants”);
WHEREAS,
the Company and the Investors desire to amend the definition of “Registrable Securities” in the Registration Rights Agreement
to include any shares of Common Stock issued or issuable upon exercise of the New Warrants; and
Whereas,
pursuant to Section 6.8 of the Registration Rights Agreement, the Registration Rights Agreement may not be modified or amended except
by an instrument or instruments in writing signed by the Company and the Holders of a majority of the Registrable Securities outstanding
at the time of such amendment, and the Investors are collectively Holders of a majority of the Registrable Securities outstanding as
of the date hereof.
Now,
Therefore, in consideration of the representations, covenants and agreements contained herein,
and certain other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows:
1.
Amendment to the Registration Rights Agreement.
(a) Effective
as of the date hereof, the definition of “Registrable Securities” in Exhibit A to the Registration Rights Agreement
is hereby amended and restated in its entirety to read as follows:
“Registrable
Securities” means (a) any shares of Common Stock issued or issuable upon conversion of any shares of Series B-3 Preferred
Stock without regard to any limitation on conversion set forth in the Certificate of Designations, (b) any other shares of Common
Stock issued in respect of preemptive rights of the Holders or acquired by the Holders in the open market or otherwise, (c) any
shares of Common Stock issued or issuable upon the exercise of any Warrants without regard to any limitation on exercise set forth in
the Warrants, (d) any shares of Common Stock issued or issuable upon the exercise of the warrants to purchase shares of Common Stock,
dated June 14, 2026, issued by the Company to certain Investors parties thereto pursuant to that certain Subordinated Credit
Agreement, dated as of October 17, 2024 (as may be amended, restated, amended and restated, supplemented or otherwise modified from
time to time in accordance with the terms thereof), by and among the Company, the lenders party thereto and U.S. Bank Trust Company,
National Association, as administrative agent, as amended (the “Lender Warrants”), without regard to any limitation
on exercise set forth in the Lender Warrants, and (e) any Common Stock or other securities issued in respect of the securities described
in clauses (a) through (d) above or this clause (e) upon any stock split, stock dividend, recapitalization, reclassification,
merger, consolidation or similar event; provided, however, that the securities described in clauses (a) through (d) and
this clause (e) above shall only be treated as Registrable Securities until the earliest of: (i) the date on which such security
has been registered under the Securities Act and disposed of in accordance with an effective Registration Statement relating thereto;
(ii) the date on which such security has been sold pursuant to Rule 144 (or another transaction that constitutes a sale under
the Securities Act) and the security is no longer a Restricted Security; (iii) following any date that the Holders collectively
own or have a right to receive (by conversion, acquisition, exercise or otherwise) Registrable Securities having a value of less than
$20,000,000 (based on then current market price), the date on which the Holder of the securities is able to immediately sell such securities
under Rule 144 without any restrictions or limitation on transfer (and without the requirement for the Company to be in compliance
with the current public information required under subsection (c)(1) of Rule 144), as reasonably determined by the Holder;
and (iv) with respect to any such security, the date on which such security and the instrument that may result in the issuance of
such security shall have ceased to be outstanding.
2. References.
Each reference to “this Agreement,” “hereof,” “herein,” “hereunder,” “hereby”
and each other similar reference contained in the Registration Rights Agreement shall, effective from the date hereof, refer to the Registration
Rights Agreement as amended by this Amendment. Notwithstanding the foregoing, references to the date of the Registration Rights Agreement
and references in the Registration Rights Agreement, as amended hereby, to “the date hereof,” “the date of this Agreement”
and other similar references shall in all instances continue to refer to March 3, 2025.
3. Miscellaneous.
(a) The
terms, conditions and provisions of the Registration Rights Agreement, as amended by this Amendment, remain in full force and effect.
The parties agree that, except as expressly provided in Section 1 of this Amendment, all other provisions of the Registration
Rights Agreement shall continue unmodified, in full force and effect and constitute legal and binding obligations of the parties in accordance
with their terms. This Amendment is limited precisely as written and shall not be deemed to be an amendment to any other term or condition
of the Registration Rights Agreement or any of the documents referred to therein. This Amendment forms an integral and inseparable part
of the Registration Rights Agreement. This Amendment shall be deemed to be in full force and effect from and after the execution of this
Amendment by the parties.
(b) This
Amendment shall be governed by, and otherwise construed in accordance with, the terms of the Registration Rights Agreement, as though
the other provisions of this Amendment were set forth in the Registration Rights Agreement. Each of the provisions under Section 6.1
(Counterparts), Section 6.2 ( Governing Law; Waiver of Jury Trial), Section 6.7 (Headings), Section 6.9
(Interpretation; Absence of Presumption) and Section 6.10 ( Severability) of the Registration Rights Agreement
shall be incorporated into this Amendment by reference as if set out in full herein, mutatis mutandis.
(Signature page follows)
2
The
parties have executed and delivered this Amendment as of the date indicated in the first sentence of this Amendment.
COMPANY:
COMTECH TELECOMMUNICATIONS CORP.
By:
/s/ Michael A. Bondi
Name: Michael A. Bondi
Title: Chief Financial Officer
[Signature Page to
First Amendment to Registration Rights Agreement]
INVESTORS:
White
Hat Strategic Partners LP
By: White Hat SP GP LLC, its General
Partner
By:
/s/ Mark Quinlan
Name: Mark Quinlan
Title: Managing Member
White
Hat Strategic Partners II LP
By: White Hat SP GP II LLC, its General
Partner
By:
/s/ Mark Quinlan
Name: Mark Quinlan
Title: Managing Member
[Signature Page to
First Amendment to Registration Rights Agreement]
MAGNETAR STRUCTURED CREDIT FUND,
LP
By: Magnetar Financial LLC, its general
partner
By:
/s/ Lavonne Harris
Name: Lavonne Harris
Title: Chief Financial Officer – Funds
MAGNETAR LONGHORN FUND LP
By: Magnetar Financial LLC, its investment
manager
By:
/s/ Lavonne Harris
Name: Lavonne Harris
Title: Chief Financial Officer – Funds
PURPOSE ALTERNATIVE CREDIT FUND
- F LLC
By: Magnetar Financial LLC, its investment
manager
By:
/s/ Lavonne Harris
Name: Lavonne Harris
Title: Chief Financial Officer – Funds
PURPOSE ALTERNATIVE CREDIT FUND
- T LLC
By: Magnetar Financial LLC, its manager
By:
/s/ Lavonne Harris
Name: Lavonne Harris
Title: Chief Financial Officer – Funds
[Signature Page to
First Amendment to Registration Rights Agreement]
MAGNETAR LAKE CREDIT FUND LLC
By: Magnetar Financial LLC, its manager
By:
/s/ Lavonne Harris
Name: Lavonne Harris
Title: Chief Financial Officer – Funds
MAGNETAR ALPHA STAR FUND LLC
By: Magnetar Financial LLC, its manager
By:
/s/ Lavonne Harris
Name: Lavonne Harris
Title: Chief Financial Officer – Funds
MAGNETAR CAPITAL FUND II LP
By: Magnetar Financial LLC, its investment
manager
By:
/s/ Lavonne Harris
Name: Lavonne Harris
Title: Chief Financial Officer – Funds
[Signature Page to
First Amendment to Registration Rights Agreement]
EX-10.4 — EXHIBIT 10.4
EX-10.4
Filename: tm2617923d1_ex10-4.htm · Sequence: 8
Exhibit 10.4
DIRECTOR AGREEMENT
This Director Agreement,
dated June 15, 2026 (this “Agreement”), is by and among the undersigned investors (each, an “Investor”;
together, the “Investors”), Magnetar Financial LLC, solely in its capacity as representative of the Investors (the
“Representative”), and Comtech Telecommunications Corp. (the “Company”).
WHEREAS, the Company and
the Representative, acting on behalf of the Investors, have mutually determined that it would be in the best interest of the Company to
provide the Representative the right to appoint a member of the Company’s Board of Directors (the “Board”), as
provided in this Agreement.
NOW, THEREFORE, in consideration
of and reliance upon the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
1. Board Representation and Board Matters.
(a) Subject to the terms
and conditions in this Agreement and without limitation to the terms and conditions of the Company’s Certificate of Designations
designating Series B-3 Convertible Preferred Stock dated March 3, 2025 (and, following the date the Transaction is consummated,
the Company’s Certificate of Designations designating Series B-4 Convertible Preferred Stock, which shall be dated and filed
with the Delaware Secretary of State on the date the Transaction is consummated, together, the “Certificate of Designations”)),
the Company hereby agrees to take all necessary corporate action to cause one individual designated in writing by the Representative on
behalf of the Investors (the “Director Nominee”) to be appointed to the Board as a director. In furtherance of the
foregoing, and subject to Section 1(b) below, the Board shall take all necessary actions (i) to appoint the Director Nominee
to the Board promptly following Representative’s notification to the Company of the individual to serve as the Director Nominee,
and (ii) with respect to the next Annual Meeting (as defined below) after the date hereof (and at each subsequent Annual Meeting
for so long as the Representative’s rights under this Section 1 remain in effect), to (A) nominate the Director Nominee
for election to the Board in the Company’s proxy statement and proxy card, (B) recommend to the stockholders of the Company
the election of the Director Nominee to the Board and (C) solicit proxies in favor of the election of the Director Nominee to the
Board in a manner no less rigorous and favorable than the manner in which the Company supports its other nominees in the aggregate.
(b) The Director Nominee
shall (i) meet all requirements regarding service as a director of the Company under applicable law and stock exchange rules regarding
service as a director of the Company and all other criteria and qualifications for service as a director applicable to all directors of
the Company, including the Company’s Standards of Business Conduct and Corporate Governance Guidelines, and (ii) make himself
or herself reasonably available for interviews and consent to such reference and background checks or other investigations as the Board
of Directors may reasonably request (and consistent with those performed on other directors of the Company) to determine the Director
Nominee’s eligibility and qualification to serve as a director of the Company. No Director Nominee shall be eligible to serve on
the Board of Directors if he or she has been involved in any of the events enumerated under Item 2(d) of Schedule 13D under the Securities
Exchange Act of 1934, as amended, or Item 401(f) of Regulation S-K under the Securities Act of 1933, as amended (the “Securities
Act”), is a “Bad Actor” as defined in Rule 506(d)(1)(i)-(viii) promulgated under the Securities Act or
is subject to any judgment prohibiting service as a director of any public company. As a condition to any Director Nominee’s election
to the Board of Directors or nomination for election as a director of the Company at any meeting of the Company’s stockholders,
the Director Nominee must provide to the Company: (A) all information reasonably requested by the Company that is required to be
or is customarily disclosed for directors and candidates for directors in a proxy statement or other filings in accordance with applicable
law, any stock exchange rules or listing standards, in each case, relating to the Director Nominee’s election as a director
of the Company or the Company’s operations in the ordinary course of business; (B) all information reasonably requested by
the Company in connection with assessing eligibility and other criteria applicable to directors or satisfying compliance and legal or
regulatory obligations, in each case, relating to the Director Nominee’s nomination or election, as applicable, as a director of
the Company or the Company’s operations in the ordinary course of business; (C) an undertaking in writing (in a form provided
by the Secretary of the Company) by the Director Nominee to be subject to, bound by and duly comply with the Company’s Corporate
Governance Guidelines and Standards of Business Conduct, with such changes thereto (or such successor policies) as are applicable to all
other directors, in each case, as such changes or successor policies are adopted in good faith by the Board of Directors, and do not by
their terms materially, adversely and disproportionately impact the Director Nominee relative to all other directors; and (D) an
undertaking to immediately resign, at the request of the Board of Directors made at such time as the Representative no longer has the
right to nominate a Director Nominee pursuant to Section 1(a). If the Board declines to accept a proposed nominee pursuant to this
Section 1(b), Representative, on behalf of the Investors, shall have the right to designate a replacement nominee, subject to the
same standard.
(c) If the Director
Nominee ceases to serve on the Board for any reason (including death, disability, resignation or removal), for so long as the Representative’s
rights under this Section 1 remain in effect, the Representative, on behalf of the Investors, shall have the right to designate a
replacement nominee, subject to the acceptance standard set forth in Section 1(b), and the Board shall take all necessary actions
to appoint such replacement to the Board as soon as possible and, with respect to the next Annual Meeting after the date hereof (and at
each subsequent Annual Meeting for so long as the Representative’s rights under this Section 1 remain in effect), (A) nominate
the replacement for election to the Board in the Company’s proxy statement and proxy card, (B) recommend to the stockholders
of the Company the election of the replacement to the Board and (C) solicit proxies in favor of the election of the replacement to
the Board in a manner no less rigorous and favorable than the manner in which the Company supports its other nominees in the aggregate.
This Section 1(c) shall also apply mutatis mutandis to any replacement(s) of the then-current replacement.
(d) Each of the Company
and Representative agrees and acknowledges that the Director Nominee shall have the same rights and benefits, including with respect to
insurance, indemnification, compensation and fees, as are applicable to all other non-management directors of the Company.
(e) For so long as the
Investors own, and continue to own, in the aggregate, beneficially and of record an amount of Convertible Preferred Stock (as defined
in the applicable Certificate of Designations) with an aggregate Liquidation Preference (as defined in the applicable Certificate of Designations)
equal to at least $20,000,000 (including, for such purpose, the Liquidation Preference of any shares of Convertible Preferred Stock previously
held by the Investors (or their permitted transferees) that were subsequently converted into Conversion Shares (as defined in the applicable
Certificate of Designations) pursuant to a Mandatory Conversion or an Optional Conversion (each, as defined in the applicable Certificate
of Designations, to the extent such Conversion Shares are still owned beneficially and of record by the Investors)), the Investors, and
the Representative acting on their behalf, will continue to have all rights under this Agreement, including the right to designate the
Director Nominee and the Company’s obligations under this Section 1 will remain in full force.
(f) The Board shall
give the Director Nominee the same due consideration for committee membership as any other independent director with similar expertise
and qualifications.
(g) The Director Nominee
may, in its discretion, provide Confidential Information (as defined below) received by the Director Nominee as a member of the Board
or committee thereof to investment professionals and attorneys employed directly by and outside legal counsels, tax advisers and auditors
retained by the Representative or any Representative Affiliate who need to know such information in connection with the Representative
and Representative Affiliates’ investment in the Company; provided, however, that the Representative hereby acknowledges
and agrees on behalf of itself, the Representative Affiliates and the professionals who receive Confidential Information, (A) to
keep such Confidential Information strictly confidential and not disclose such Confidential Information to any other person (other than
the Representative or any Representative Affiliates), and (B) not to use or permit the use of such Confidential Information for any
purpose other than in connection with the Director Nominee’s duties as a director of the Company and in connection with the Representative’s
and the Representative Affiliate’s investment in the Company; it being understood that the Representative shall inform each such
Representative Affiliate, Representative Affiliate employee, outside legal counsel, tax adviser or auditor of the confidential nature
of the Confidential Information and advise each such person to abide by the confidentiality provisions set forth in this Agreement as
if they were a party hereto.
(h) Any share ownership
requirement for the Director Nominee serving on the Board will be deemed satisfied by the securities owned by the Representative and any
Representative Affiliate.
(i) Under no circumstances
shall any of the Company’s policies be violated by the Director Nominee receiving lawful compensation from the Representative or
any Representative Affiliate, so long as such compensation is not paid with respect to the Director Nominee’s service or action
as a director of the Company and such Director Nominee is an employee, contractor or service provider of the Representative or any Representative
Affiliate.
(j) The Chairman of
the Board shall have the right to excuse the Director Nominee from any meetings or materials of the Board if he determines reasonably
and in good faith, upon advice of outside counsel, that (i) allowing the Director Nominee to participate in such meeting or receive
such materials could reasonably be expected to result in a violation of applicable law, or (ii) such Director Nominee has an actual
conflict of interest or a potential conflict of interest based on the subject matter of such meeting. In addition, a committee chair may
exclude the Director Nominee from a committee meeting if the committee chair determines reasonably and in good faith, upon advice of outside
counsel, that the Director Nominee has an actual conflict of interest or a potential conflict of interest based on the subject matter
of such meeting.
(k) For so long as the
Representative’s rights under this Section 1 remain in effect, the Company shall notify the Representative in writing, no later
than 45 days prior to the advance notice deadline for making director nominations under the Company’s bylaws at any annual meeting
of stockholders of the Company (including any special meeting held in lieu thereof, each, an “Annual Meeting”), if
the Director Nominee will not be included on the Company’s slate of nominees for such Annual Meeting; provided that if for
any reason the Company fails to include the Director Nominee on the Company’s slate of nominees at such Annual Meeting after failing
to notify the Representative that the Director Nominee will not be included on the Company’s slate, the Company shall inform the
Representative, in writing, that the Director Nominee will not be included on the Company’s slate of nominees for such Annual Meeting
and the Company shall thereafter take any action necessary (including extending the director nomination deadline) to ensure that the Representative
has at least 30 days from the date that the Company makes such notification (such period, the “Notice Period”) to submit
director nominations for such Annual Meeting in accordance with the Company’s bylaws, and the Company shall not file any proxy statement
with respect to such Annual Meeting until the expiration of the Notice Period.
2. Public
Announcements. No later than 9:00 a.m. Eastern Time, on June 17, 2026, the Company shall file this Agreement with the SEC
as exhibits to a Current Report on Form 8-K and to file this Agreement as an exhibit to future filings with the SEC, and the Company
acknowledges and agrees that the Representative shall have reasonable advance review and consultation rights upon any Current Report on
Form 8-K filing (or amendment thereto) made by the Company with respect to this Agreement.
3. Representations
and Warranties of All Parties. Each of the parties hereto represents and warrants to the other party hereto that: (a) such party
has all requisite power and authority to execute and deliver this Agreement and to perform its obligations hereunder; (b) this Agreement
has been duly and validly authorized, executed and delivered by such party and assuming the valid execution and delivery hereof by the
other party, is a valid and binding obligation of such party, enforceable against such party in accordance with its terms; and (c) the
execution, delivery and performance of this Agreement does not and will not (i) violate or conflict with any law, rule, regulation,
order, judgment or decree applicable to such party, or (ii) result in any breach or violation of or constitute a default (or an event
which with notice or lapse of time or both could constitute a breach, violation or default) under or pursuant to, or result in the loss
of a material benefit under, or give any right of termination, amendment, acceleration or cancellation of, any organizational document,
agreement, contract, commitment, understanding or arrangement to which such party is a party or by which it is bound.
4. Definitions.
As used in this Agreement,
i. the term “Affiliate” shall have the meaning set forth in Rule 12b-2 promulgated
by the SEC under the Exchange Act and the term “Representative Affiliate” shall mean an Affiliate of the Representative;
ii. the term “Confidential Information” shall mean (x)(A) any materials, resolutions
or other information prepared for consideration at any meeting, or for any action by written consent in lieu of a meeting, of the Board
or any committee thereof, (B) all discussions and deliberations occurring during Board or committee meetings, (y) (A) any
and all information communicated in writing, orally, by electronic or magnetic or any other media, by visual observation or by any other
means, on or after the date of this Agreement, whether or not labeled as confidential, which is disclosed or otherwise provided by, or
on behalf or at the request of, the Company or its subsidiaries, to the Director Nominee, (B) proprietary information of the Company
or any of its Affiliates that is disclosed to the Director Nominee in his capacity as a director of the Company, and (C) information
disclosed or otherwise provided to the Director Nominee by, or on behalf or at the request of the Company or any of its Affiliates which
relates to current, planned or proposed products, marketing and business plans, methods of doing business, forecasts, projections and
analyses, financial information, and joint venture, vendor and customer information and (z) all notes, reports, analyses, compilations,
studies, interpretations or other materials, whether prepared by the Director Nominee or by a Representative Affiliate, that contain,
reflect or are derived or based (in whole or in part) upon any Confidential Information; provided; however, that Confidential Information
will not include information that (a) was or becomes available to the public other than as a result of a breach of any confidentiality
obligation in this Agreement by the Director Nominee, an Investor, the Representative, Representative Affiliates or any person to whom
the Director Nominee disclosed Confidential Information to pursuant to Section 1(g) hereof, (b) was or becomes available
to the Representative, an Investor, their respective affiliates or representatives from a source other than the Company or its representatives;
provided that such source is reasonably believed by such Representative, Investor or affiliates not to be subject to an obligation
of confidentiality (whether by agreement or otherwise), (c) at the time of disclosure is already in the possession of the Representative,
an Investor or their respective affiliates or representatives from a source other than the Company or any of its subsidiaries or any of
their respective representatives; provided that such source is reasonably believed by such Investor or such Affiliates not to be
subject to an obligation of confidentiality (whether by agreement or otherwise), or (d) was independently developed by the Representative,
an Investor or their respective affiliates or representatives without reference to, incorporation of, or other use of any Confidential
Information;
iii. the term “Exchange Act” means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated by the SEC thereunder;
iv. the terms “person” or “persons” mean any individual, corporation
(including not-for-profit), general or limited partnership, limited liability or unlimited liability company, joint venture, estate, trust,
association, organization or other entity of any kind or nature;
v. the “SEC” means the U.S. Securities and Exchange Commission; and
vi. the term “Transaction” means the transaction contemplated by that certain Securities
Purchase Agreement (the “Securities Purchase Agreement”), dated as of the date hereof, among the Company, the subsidiaries
of the Company named therein, and Wavestream Corporation (“Buyer”), the Company and certain of its subsidiaries are
selling to Buyer the direct and indirect subsidiaries of the Company engaged (and certain assets used) in the Company’s Satellite
and Space Communications business.
5. Specific
Performance; Venue; Governing Law; Waiver of Jury Trial.
(a) The parties hereto
recognize and agree that if for any reason any of the provisions of this Agreement are not performed in accordance with their specific
terms or are otherwise breached, immediate and irreparable harm or injury would be caused for which money damages would not be an adequate
remedy. Accordingly, each party hereto agrees that in addition to other remedies the other party hereto shall be entitled to at law or
in equity, the other party hereto shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions of this Agreement exclusively in the Court of Chancery or other federal or state courts of the State
of Delaware.
(b) Furthermore, each
of the parties hereto (i) consents to submit itself to the personal jurisdiction of the Court of Chancery or other federal or state
courts of the State of Delaware in the event any dispute arises out of this Agreement or the transactions contemplated by this Agreement,
(ii) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any
such court, (iii) agrees that it shall not bring any action relating to this Agreement or the transactions contemplated by this Agreement
in any court other than the Court of Chancery or other federal or state courts of the State of Delaware, and (iv) irrevocably consents
to service of process by a reputable overnight mail delivery service, signature requested, to the address of such party’s principal
place of business or as otherwise provided by applicable law.
(c) This Agreement shall
be governed in all respects, including validity, interpretation and effect, by the laws of the State of Delaware applicable to contracts
executed and to be performed wholly within such State without giving effect to the choice of law principles of such State.
(d) Each of the parties
hereto, after consulting or having had the opportunity to consult with counsel, knowingly, voluntarily and intentionally waives any right
that such party may have to a trial by jury in any litigation based upon or arising out of this Agreement or any related instrument or
agreement, or any of the transactions contemplated thereby, or any course of conduct, dealing, statements (whether oral or written), or
actions of any of them. No party hereto shall seek to consolidate, by counterclaim or otherwise, any action in which a jury trial has
been waived with any other action in which a jury trial cannot be or has not been waived.
6. No
Waiver. Any waiver by any party hereto of a breach of any provision of this Agreement shall not operate as or be construed to be a
waiver of any other breach of such provision or of any breach of any other provision of this Agreement. The failure of a party hereto
to insist upon strict adherence to any term of this Agreement on one or more occasions shall not be considered a waiver or deprive that
party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement.
7. Entire
Agreement. This Agreement (together with the exhibits and schedules hereto) contains the entire understanding of the parties hereto
with respect to the subject matter hereof and supersedes any and all prior and contemporaneous agreements, memoranda, arrangements and
understandings, both written and oral, between the parties, or any of them, with respect to the subject matter of this Agreement. This
Agreement may be amended only by an agreement in writing executed by the parties hereto.
8. Notices.
All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed to have been duly
given or made as follows: (a) if sent by registered or certified mail in the United States return receipt requested, upon receipt;
(b) if sent by nationally recognized overnight air courier, one (1) business day after mailing; (c) if sent by e-mail
transmission, with a copy sent on the same day in the manner provided in the foregoing clause (a) or (b), when transmitted and receipt
is confirmed; and (d) if otherwise actually personally delivered, when delivered, provided, that such notices, requests, demands
and other communications are delivered to the address set forth below, or to such other address as any party shall provide by like notice
to the other parties to this Agreement:
If to the Company, to:
Comtech Telecommunications Corp.
305 N 54th Street
Chandler, Arizona 85226
Attn: Ken Traub, Chairman and CEO
E-mail: ken.traub@comtech.com
with a copy (which shall
not constitute notice) to:
Norton Rose Fulbright US
LLP
1301 Avenue of the Americas
New York, New York 10019-6022
Attention: Steven I. Suzzan
E-mail: steven.suzzan@nortonrosefulbright.com
If to Representative or the
Investors, to:
Magnetar Financial LLC
1603 Orrington Avenue, 13th
Floor
Evanston, IL 60201
Attention: Chief Legal Officer
Email: FISecuritynotices@magnetar.com
with a copy (which shall
not constitute notice) to:
Counsel to Representative
and the Investors:
Willkie Farr &
Gallagher LLP
787 Seventh Avenue
New York, NY 10019-6099
E-mail: ehalperin@willkie.com;
sewen@willkie.com
Attention: Eric Halperin;
Sean Ewen
9. Severability.
If at any time subsequent to the date hereof, any provision of this Agreement is held by any court of competent jurisdiction to be illegal,
void or unenforceable, such provision will be of no force and effect, but the illegality or unenforceability of such provision will have
no effect upon the legality or enforceability of any other provision of this Agreement. In addition, the parties hereto agree to use their
best efforts to agree upon and substitute a valid and enforceable provision for any provision that is held illegal, void or unenforceable
by a court of competent jurisdiction.
10. Counterparts.
This Agreement may be executed in one or more counterparts and by scanned computer image (such as .pdf), each of which will be deemed
to be an original copy of this Agreement. For the avoidance of doubt, no party hereto shall be bound by any contractual obligation to
the other parties hereto until all counterparts to this Agreement have been duly executed by each of the parties hereto and delivered
to the other parties hereto (including by means of electronic delivery).
11. Successors
and Assigns. This Agreement shall not be assignable by any of the parties to this Agreement. This Agreement, however, shall be binding
on successors of the parties hereto.
12. No
Third Party Beneficiaries. This Agreement is solely for the benefit of the parties hereto and is not enforceable by any other persons.
13. Fees
and Expenses. The Company shall bear and pay all reasonable and documented out-of-pocket fees, costs and expenses incurred by the
Representative or the Investors in connection with the negotiation and execution of this Agreement, including reasonable attorneys’
fees. The Company shall pay such amounts within five days of receipt of an invoice in connection with this Agreement.
14. Interpretation
and Construction. Each of the parties hereto acknowledges that it has been represented by counsel of its choice throughout all negotiations
that have preceded the execution of this Agreement, and that it has executed the same with the advice of said independent counsel. Each
party hereto and its counsel cooperated and participated in the drafting and preparation of this Agreement and the documents referred
to herein, and any and all drafts relating thereto exchanged among the parties hereto shall be deemed the work product of all of the parties
hereto and may not be construed against any party hereto by reason of its drafting or preparation. Accordingly, any rule of law or
any legal decision that would require interpretation of any ambiguities in this Agreement against any party hereto that drafted or prepared
it is of no application and is hereby expressly waived by each of the parties hereto, and any controversy over interpretations of this
Agreement will be decided without regard to events of drafting or preparation. The section headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. The terms “include,”
“includes” and “including” shall be deemed to be followed by the word “without limitation” in all
instances.
15. Termination.
This Agreement shall become effective on the date hereof and remain in effect until the Investors no longer have the right to designate
a Director Nominee pursuant to Section 1, unless earlier terminated by mutual written agreement of the parties. Upon termination
of this Agreement, this Agreement shall have no further force and effect; provided that Sections 1(g) and 5 through 15 shall
survive termination of this Agreement, and no termination of this Agreement shall relieve any party of liability for any breach of this
Agreement arising prior to such termination.
[Signature Page Follows]
IN WITNESS WHEREOF, each
of the parties hereto has executed this Director Agreement, or caused the same to be executed by its duly authorized representative as
of the date first above written.
COMTECH TELECOMMUNICATIONS CORP.
By:
/s/ Kenneth Traub
Name:
Kenneth Traub
Title:
Chairman, President and Chief Executive Officer
MAGNETAR FINANCIAL LLC,
as Representative
By:
/s/ Lavonne Harris
Name:
Lavonne Harris
Title:
Chief Financial Officer – Funds
MAGNETAR ALPHA STAR FUND LLC
By: Magnetar Financial LLC, its Investment Manager
By:
/s/ Lavonne Harris
Name:
Lavonne Harris
Title:
Chief Financial Officer – Funds
MAGNETAR CAPITAL FUND II LP
By: Magnetar Financial LLC, its Investment Manager
By:
/s/ Lavonne Harris
Name:
Lavonne Harris
Title:
Chief Financial Officer – Funds
MAGNETAR LONGHORN FUND, LP
By: Magnetar Financial LLC, its Investment Manager
By:
/s/ Lavonne Harris
Name:
Lavonne Harris
Title:
Chief Financial Officer – Funds
MAGNETAR LAKE CREDIT FUND LLC
By: Magnetar Financial LLC, its Manager
By:
/s/ Lavonne Harris
Name:
Lavonne Harris
Title:
Chief Financial Officer – Funds
MAGNETAR STRUCTURED CREDIT FUND, LP
By: Magnetar Financial LLC, its General Partner
By:
/s/ Lavonne Harris
Name:
Lavonne Harris
Title:
Chief Financial Officer – Funds
PURPOSE ALTERNATIVE CREDIT FUND - F LLC
By: Magnetar Financial LLC, its Investment Manager
By:
/s/ Lavonne Harris
Name:
Lavonne Harris
Title:
Chief Financial Officer – Funds
PURPOSE ALTERNATIVE CREDIT FUND - T LLC
By: Magnetar Financial LLC, its Investment Manager
By:
/s/ Lavonne Harris
Name:
Lavonne Harris
Title:
Chief Financial Officer – Funds
EX-10.5 — EXHIBIT 10.5
EX-10.5
Filename: tm2617923d1_ex10-5.htm · Sequence: 9
Exhibit 10.5
EXCHANGE AGREEMENT
BY AND AMONG
Comtech Telecommunications Corp.
AND
THE ENTITIES LISTED ON EXHIBIT B HERETO
Dated as of June 14, 2026
TABLE OF CONTENTS
Page
ARTICLE I. EXCHANGE
OF SHARES
3
Section 1.1
Exchange
3
Section 1.2
Closing
4
Section 1.3
Closing Deliverables
4
ARTICLE II. REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
4
Section 2.1
Organization and Power
4
Section 2.2
Authorization, Etc.
5
Section 2.3
Government Approvals
6
Section 2.4
Authorized and Outstanding Stock
6
Section 2.5
Subsidiaries
7
Section 2.6
Private Placement
8
Section 2.7
SEC Documents; Financial Information
8
Section 2.8
Internal Control Over Financial Reporting
9
Section 2.9
Disclosure Controls and Procedures
9
Section 2.10
Litigation
9
Section 2.11
Compliance with Laws; Permits
9
Section 2.12
Taxes
9
Section 2.13
Employee and Labor Matters
10
Section 2.14
Environmental Matters
10
Section 2.15
Registration Rights
10
Section 2.16
Investment Company Act
11
Section 2.17
Nasdaq
11
Section 2.18
Properties
11
Section 2.19
Privacy and Data Security
11
Section 2.20
Insurance
12
Section 2.21
No Brokers or Finders
12
Section 2.22
Illegal Payments; FCPA Violations
12
Section 2.23
Economic Sanctions
13
Section 2.24
No Integrated Offering
13
Section 2.25
Shell Company Status
13
Section 2.26
Accounting
13
Section 2.27
No Additional Representations
13
Section 2.28
No Reliance on Investor Representations
14
Section 2.29
Holding Period
14
ARTICLE III. REPRESENTATIONS
AND WARRANTIES OF THE INVESTORS
14
Section 3.1
Organization and Power
14
Section 3.2
Authorization, Etc.
14
Section 3.3
Government Approvals
15
i
Section 3.4
Title
15
Section 3.5
Investment Representations
15
Section 3.6
No Brokers or Finders
16
Section 3.7
No Covered Transaction
16
Section 3.8
No Additional Representations
16
Section 3.9
No Reliance
16
ARTICLE IV. COVENANTS
OF THE PARTIES
17
Section 4.1
Board of Directors
17
Section 4.2
Public Announcement
17
Section 4.3
Restrictions on Transfer
17
Section 4.4
Restrictive Legends
18
Section 4.5
Access to Information
19
Section 4.6
Financial Statements and Other Information
19
Section 4.7
Consent to the Transactions
20
Section 4.8
Information; Confidentiality
22
Section 4.9
Warrants
23
Section 4.10
Elimination of Series B-3 Certificate of Designations
23
Section 4.11
Termination of Prior Voting Agreement
23
Section 4.12
Efforts to Consummate
23
ARTICLE V. Conditions
to closing
24
Section 5.1
Conditions to the Obligations of the Company and the
Investors
24
ARTICLE VI. MISCELLANEOUS
24
Section 6.1
Survival
24
Section 6.2
Counterparts
24
Section 6.3
Governing Law
24
Section 6.4
Entire Agreement; No Third Party Beneficiary; Reclassification
25
Section 6.5
Expenses
25
Section 6.6
Notices
26
Section 6.7
Successors and Assigns
27
Section 6.8
Headings
27
Section 6.9
Amendments and Waivers
27
Section 6.10
Interpretation; Absence of Presumption
27
Section 6.11
Severability
27
Section 6.12
Specific Performance
28
Section 6.13
Corporate Opportunities
28
Section 6.14
Public Announcement
29
Section 6.15
Indemnification
29
Section 6.16
Termination
30
ii
EXHIBITS
Exhibit A Defined Terms
A-1
Exhibit B Investors
B-1
Exhibit C Form of Series B-4
Certificate of Designations
C-1
Exhibit D Form of Series B-4
Registration Rights Agreement
D-1
Exhibit E Disclosure Schedule
E-1
Exhibit F Form of Warrant
F-1
Exhibit G Form of Series B-4
Voting Agreement
G-1
Exhibit H Form of Securities
Purchase Agreement
H-1
iii
EXCHANGE AGREEMENT
This EXCHANGE AGREEMENT dated
as of June 14, 2026 (this “Agreement”), is by and among Comtech Telecommunications Corp., a Delaware corporation
(the “Company”), and the entities that are listed on Exhibit B attached hereto (each, an “Investor”
and collectively, the “Investors”). Capitalized terms used but not defined herein have the meanings assigned to them
in Exhibit A attached hereto.
WHEREAS, the Company and
certain of the Investors previously entered into that certain Subscription Agreement, dated as of October 18, 2021, pursuant to
which, on the terms and subject to the conditions set forth therein, the Company issued and sold to certain of the Investors, and certain
of the Investors purchased from the Company, 100,000 shares of Series A Preferred Stock;
WHEREAS, the Company and
certain of the Investors previously entered into that certain Exchange Agreement, dated as of December 13, 2023, pursuant to which
certain Investors exchanged all Series A Preferred Stock owned by such Investors for an equal number of shares of Series A-1
Preferred Stock;
WHEREAS, the Company and
the Investors previously entered into that certain Subscription and Exchange Agreement, dated as of January 22, 2024, pursuant to
which certain Investors, as applicable, (i) purchased 45,000 shares (the “Purchased Series B Shares”) of
Series B Preferred Stock, (ii) exchanged all Series A-1 Preferred Stock owned by such Investors for 115,721.22 shares
(the “Exchanged Series B Shares”) of Series B Preferred Stock and (iii) received 5,400 shares (the
“Additional Series B Shares”) of Series B Preferred Stock;
WHEREAS, the Company and
the Investors previously entered into that certain Subscription and Exchange Agreement, dated as of June 17, 2024, pursuant to which
certain Investors, as applicable, (i) exchanged the Purchased Series B Shares owned by such Investors for 45,000 shares (the
“Purchased Series B-1 Shares”) of Series B-1 Preferred Stock, (ii) exchanged the Exchanged Series B
Shares owned by such Investors for 115,721.22 shares (the “Exchanged Series B-1 Shares”) of Series B-1 Preferred
Stock, (iii) exchanged the Additional Series B Shares for 5,400 shares (the “Exchanged Additional Series B-1
Shares”) of Series B-1 Preferred Stock and (iv) received 5,705.83 shares (the “Additional Series B-1
Shares”) of Series B-1 Preferred Stock;
WHEREAS, the Company and
the Investors previously entered into that certain Subscription and Exchange Agreement, dated as of October 17, 2024, pursuant to
which certain Investors, as applicable, (i) exchanged the Purchased Series B-1 Shares owned by such Investors for 45,000 shares
(the “Purchased Series B-2 Shares”) of Series B-2 Preferred Stock, (ii) exchanged the Exchanged Series B-1
Shares owned by such Investors for 115,721.22 shares (the “Exchanged Series B-2 Shares”) of Series B-2 Preferred
Stock, (iii) exchanged the Exchanged Additional Series B-1 Shares owned by such Investors for 5,400 shares (the “Exchanged
January 2024 Additional Series B-2 Shares”) of Series B-2 Preferred Stock, (iv) exchanged the Additional
Series B-1 Shares owned by such Investors for 5,705.83 shares (the “Exchanged June 2024 Additional Series B-2
Shares”) of Series B-2 Preferred Stock and (v) received 3,436.53 shares (the “Additional October 2024
Series B-2 Shares”) of Series B-2 Preferred Stock;
1
WHEREAS, the Company and
the Investors previously entered into that certain Subscription and Exchange Agreement, dated as of March 3, 2025 (the “Existing
Subscription and Exchange Agreement”), pursuant to which certain Investors, as applicable, (i) exchanged the Purchased
Series B-2 Shares owned by such Investors for 45,000 shares (the “Purchased Series B-3 Shares”) of Series B-3
Preferred Stock, (ii) exchanged the Exchanged Series B-2 Shares owned by such Investors for 115,721.22 shares (the “Exchanged
Series B-3 Shares”) of Series B-3 Preferred Stock, (iii) exchanged the Exchanged January 2024 Additional
Series B-2 Shares owned by such Investors for 5,400 shares (the “Exchanged January 2024 Additional Series B-3
Shares”) of Series B-3 Preferred Stock, (iv) exchanged the Exchanged June 2024 Additional Series B-2 Shares
owned by them for 5,705.83 shares (the “Exchanged June 2024 Additional Series B-3 Shares”) of Series B-3
Preferred Stock, (v) exchanged the Additional October 2024 Series B-2 Shares owned by such Investors for 3,436.53 shares
(the “Exchanged October 2024 Additional Series B-3 Shares”) of Series B-3 Preferred Stock, and (vi) received
2,916.76 shares (the “March 2025 Additional Series B-3 Shares”) of Series B-3 Preferred Stock (the
Purchased Series B-3 Shares, Exchanged Series B-3 Shares, Exchanged January 2024 Additional Series B-3 Shares, Exchanged
June 2024 Additional Series B-3 Shares, the Exchanged October 2024 Additional Series B-3 Shares and the March 2025
Additional Series B-3 Shares, collectively, the “Exchanged Shares”);
WHEREAS,
the Company has authorized a new series of its preferred stock titled the “Series B-4 Convertible Preferred Stock,”
par value $0.10 per share (the “Series B-4 Preferred Stock”), in an aggregate number of 178,180.34 shares
with an increased Liquidation Preference equal to $1,238.23 per share plus Dividends accrued and added to the Liquidation Preference
pursuant to Section 5 of the Series B-3 Certificate of Designations from the date hereof to the date of Exchange;
WHEREAS, those Investors
who own Series B-3 Preferred Stock severally and not jointly desire to, as applicable, (i) exchange the Purchased Series B-3
Shares owned by such them for the number of shares of Series B-4 Preferred Stock set forth opposite their name on Exhibit B
attached hereto (the “2024 Exchange Shares”), (ii) exchange the Exchanged Series B-4 Shares owned by them
for the number of shares of Series B-4 Preferred Stock set forth opposite their name on Exhibit B attached hereto (the
“2021 Exchange Shares”), (iii) exchange the Exchanged January 2024 Additional Series B-3 Shares owned
by them for the number of shares of Series B-4 Preferred Stock set forth opposite their name on Exhibit B attached hereto
(the “January 2024 Additional Shares”), (iv) exchange the Exchanged June 2024 Additional Series B-3
Shares owned by them for the number of shares of Series B-4 Preferred Stock set forth opposite their name on Exhibit B attached
hereto (the “June 2024 Additional Shares”), (v) exchange the Exchanged Additional October 2024 Series B-3
Shares owned by them for the number of shares of Series B-4 Preferred Stock set forth opposite their name on Exhibit B
attached hereto (the “October 2024 Additional Shares”), and (vi) exchange the March 2025 Additional
Series B-3 Shares owned by them for the number of shares of Series B-4 Preferred Stock set forth opposite their name on Exhibit B
attached hereto (the “March 2025 Additional Shares” and, together with the January 2024 Additional Shares,
the June 2024 Additional Shares and the October 2024 Additional Shares, the “Additional Shares”; the 2024
Exchange Shares, the 2021 Exchange Shares, and the Additional Shares, collectively, the “Issued Shares”) (such exchanges
described in clauses (i) through (vi), the “Exchange”), in each case, on the terms hereinafter set forth;
2
WHEREAS, the Investors and
the Company intend that the Exchange qualify as a tax-free reorganization within the meaning of Section 368(a)(1)(E) of the
Code and a reclassification within the meaning of Rule 16b-7 promulgated under the Exchange Act;
WHEREAS,
concurrently with the execution of this Agreement, as a condition of and inducement to the Investors willingness to enter into
this Agreement, (a) the Company and the Investors shall enter into the Series B-4 Registration Rights Agreement, and (b) the
Company and the Investors shall each enter into a Series B-4 Voting Agreement, in each case, to be effective as of the Closing;
WHEREAS,
concurrently with the execution of this Agreement, the Company entered into that certain Securities Purchase Agreement, dated as of the
date hereof, with Wavestream Corporation, a Delaware corporation (“Buyer”), certain direct or indirect Subsidiaries
of the Company, and certain other Affiliates of the Company (collectively and together with the Company, “Sellers”
and each, individually, a “Seller”) (as amended, supplemented, or otherwise modified from time to time in accordance
with its terms and Section 4.7(a), in substantially the form attached hereto as Exhibit H, the “Securities
Purchase Agreement”), pursuant to which, among other things, Buyer will, on the terms, and subject to the conditions, set forth
therein, purchase from Sellers all of the issued and outstanding equity securities of certain subsidiaries of the Company) (the purchase
by Buyer from Sellers of such equity securities as contemplated by the Securities Purchase Agreement, the “Permitted Disposition”);
WHEREAS,
in consideration for the benefits to be received, directly or indirectly, by the Investors in connection with the Transactions, the Investors
agree to enter into this Agreement and to be bound by the representations, warranties, agreements, covenants and obligations contained
in this Agreement; and
NOW,
THEREFORE, in consideration of the premises and the mutual representations, warranties, covenants and agreements contained herein,
and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
ARTICLE I.
EXCHANGE
OF SHARES
Section 1.1 Exchange.
On the terms set forth in this Agreement and subject to the satisfaction (or, to the extent permitted by applicable law, waiver by the
party entitled to the benefit thereof) of the conditions set forth in Article V, at the Closing, the Investors shall exchange
and deliver to the Company (i) the Purchased Series B-3 Shares, and in exchange therefor the Company hereby agrees to issue
and deliver to such Investors the 2024 Exchange Shares, (ii) the Exchanged Series B-3 Shares, and in exchange therefor the
Company hereby agrees to issue and deliver to such Investors the 2021 Exchange Shares, (iii) the Exchanged January 2024 Additional
Series B-3 Shares, and in exchange therefor the Company hereby agrees to issue and deliver to such Investors the January 2024
Additional Shares, (iv) the Exchanged June 2024 Additional Series B-3 Shares, and in exchange therefor the Company hereby
agrees to issue and deliver to such Investors the June 2024 Additional Shares, (v) the Additional October 2024 Series B-3
Shares, and in exchange therefor the Company hereby agrees to issue and deliver to such Investors the October 2024 Additional Shares
and (vi) the March 2025 Additional Series B-3 Shares, and in exchange therefor the Company hereby agrees to issue and
deliver to such Investors the March 2025 Additional Shares. The Series B-4 Preferred Stock shall have the rights, powers, preferences
and privileges set forth in the Certificate of Designations (the “Series B-4 Certificate of Designations”) in
substantially the form attached hereto as Exhibit C, upon the effectiveness and filing of the Series B-4 Certificate
of Designations.
3
Section 1.2 Closing.
On the terms set forth in this Agreement, the closing of the issuance of the Issued Shares in exchange for the Exchanged Shares and other
consideration, the receipt of which is hereby acknowledged (collectively, the “Closing”) shall take place remotely
via the exchange of final documents and signature pages, on the date of the closing of the Permitted Disposition, or at such other times
as the Company and the Investors may agree in writing. The date on which the Closing is to occur is herein referred to as the “Closing
Date.”
Section 1.3 Closing
Deliverables. At the Closing:
(a) each
Investor shall, severally and not jointly, deliver or cause to be delivered its respective Exchanged Shares to the Company for cancellation;
and
(b) the
Company shall (i) issue and deliver to each Investor evidence reasonably satisfactory to such Investor of the issuance of the applicable
Issued Shares in the name of such Investor by book-entry on the books and records of the Company upon receipt from such Investor of its
respective Exchanged Shares for cancellation, and (ii) file the Series B-4 Certificate of Designations with the Secretary of
State of the State of Delaware and provide evidence of such filing to the Investors.
ARTICLE II.
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
The Company represents and
warrants to the Investors as of the date of this Agreement, as of the Closing (except to the extent made only as of a specified date,
in which case such representation and warranty is made as of such date) that, except as (a) set forth in the SEC Documents (other
than disclosures in the “Risk Factors” or “Forward Looking Statements” sections or similarly captioned sections
of any such filings) and (b) set forth on Exhibit E (the “Disclosure Schedule”) (all such exceptions
disclosed in the Disclosure Schedule being numbered to correspond to the applicable Section of this Article II, provided,
however, that any such exception shall be deemed to be disclosed with respect to each other representation or warranty to which
the relevance of such exception is reasonably apparent on the face of such disclosure):
Section 2.1 Organization
and Power.
(a) The
Company is a corporation validly existing and in good standing under the laws of the State of Delaware and has all requisite corporate
power and authority necessary to own or lease its properties and to carry on its business as presently conducted, except (other than
with respect to the Company’s valid existence and good standing) as has not had, and would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect. The Company is duly licensed or qualified to do business as a foreign corporation
in each jurisdiction wherein the character of its property or the nature of the activities presently conducted by it, makes such qualification
necessary, except where the failure to be so licensed or qualified has not had, and would not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect.
4
(b) Each
of the Company’s Subsidiaries is a corporation, limited liability company, partnership or other entity validly existing and in
good standing (where such concept is recognized under applicable law) under the laws of the jurisdiction of its incorporation or formation
(as applicable), except, with respect only to each Subsidiary of the Company that would not constitute a Significant Subsidiary (as defined
in Rule 1-02 of Regulation S-X (17 C.F.R. Part 210)), where the failure to be so existing and in good standing has not had,
and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. Each of the Company’s
Subsidiaries has all requisite corporate, limited liability company, partnership or other entity power and authority necessary to own
or lease its properties and to carry on its business as presently conducted, except as has not had, and would not reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect. Each of the Company’s Subsidiaries is duly licensed or qualified
to do business as a foreign corporation, limited liability company, partnership or other entity in each jurisdiction wherein the character
of its property or the nature of the activities presently conducted by it, makes such qualification necessary, except where the failure
to be so licensed or qualified has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.
Section 2.2 Authorization,
Etc.
(a) The
Company has all necessary corporate power and authority and has taken all necessary corporate action required for the due authorization,
execution, delivery and performance by the Company of this Agreement and each other agreement contemplated hereby, and the consummation
by the Company of the transactions contemplated hereby and thereby, the filing of the Series B-4 Certificate of Designations with
the Secretary of State of the State of Delaware and for the due authorization, issuance and delivery of the Issued Shares and the reservation,
issuance and delivery of the Conversion Shares (as defined below).
(b) The
authorization, execution, delivery and performance by the Company of this Agreement and each other agreement contemplated hereby, and
the consummation by the Company of the transactions contemplated hereby and thereby, including the filing of the Series B-4 Certificate
of Designations and the issuance of the Issued Shares and the Conversion Shares do not and will not: (i) violate or result in the
breach of any provision of the Certificate of Incorporation, Bylaws and Series B-4 Certificate of Designations; or (ii) with
such exceptions that have not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse
Effect: (x) violate any provision of, constitute a breach of, or default under, any judgment, order, writ, or decree applicable
to the Company or any of its Subsidiaries or any material contract, mortgage or credit agreement to which the Company or any of its Subsidiaries
is a party; (y) violate any provision of, constitute a breach of, or default under, any applicable state, federal or local law,
rule or regulation; or (z) result in the creation of any liens, pledges, mortgages, security interests or other encumbrances
or charges of any kind upon any assets of the Company or any of its Subsidiaries or the suspension, revocation or forfeiture of any franchise,
permit or license granted by a governmental authority to the Company or any of its Subsidiaries, other than liens under federal or state
securities laws.
5
(c) No
shareholder approval is required pursuant to the rules of the Nasdaq Stock Market in connection with the issuance of the Issued
Shares or Conversion Shares. This Agreement has been, and the other agreements contemplated hereby, at the Closing will be, duly executed
and delivered by the Company. Assuming due execution and delivery thereof by each of the other parties hereto or thereto, this Agreement
and the other agreements contemplated hereby will each be a valid and binding obligation of the Company enforceable against the Company
in accordance with its terms, except as such enforceability may be limited by applicable laws relating to bankruptcy, insolvency, reorganization,
moratorium or other similar legal requirement relating to or affecting creditors’ rights generally and except as such enforceability
is subject to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
The Company has taken all appropriate actions so that the restrictions on business combinations contained in Section 203 of the
DGCL will not apply with respect to or as a result of the issuance of the Issued Shares (or the Conversion Shares) to the Investors or
the Transfer thereof to its Permitted Transferees in accordance with this Agreement, without any further action required on the part
of the stockholders of the Company or the Board of Directors.
Section 2.3 Government
Approvals. No consent, approval or authorization of, or filing with, any court or governmental authority is or will be required on
the part of the Company in connection with the execution, delivery and performance by the Company of this Agreement and the other agreements
contemplated hereby, or in connection with the issuance of the Issued Shares and the Conversion Shares, except for (a) the filing
of the Series B-4 Certificate of Designations and Certificate of Elimination (as defined below) with the Secretary of State of the
State of Delaware; (b) those which have already been made or granted, including the approval of the listing of the Conversion Shares
with the Nasdaq Stock Market; (c) the filing of a Form D and current report on Form 8-K with the SEC; and (d) filings
with applicable state securities commissions.
Section 2.4 Authorized
and Outstanding Stock.
(a) The
authorized capital stock of the Company consists of 100,000,000 shares of common stock, $0.10 par value per share (“Common Stock”),
and 2,000,000 shares of preferred stock, $0.10 per value per share (“Preferred Stock”). Of such Preferred Stock, (i) no
shares are designated as Series A Preferred Stock, (ii) no shares are designated as Series A-1 Preferred Stock, (iii) no
shares are designated as Series B Preferred Stock, (iv) no shares are designated as Series B-1 Preferred Stock, (v) no
shares are designated as Series B-2 Preferred Stock, (vi) 178,180.34 shares are designated as Series B-3 Preferred Stock
and (vii) upon the filing of the Series B-4 Certificate of Designations with the Secretary of the State of Delaware, 178,180.34
shares will be designated as Series B-4 Preferred Stock. The Company does not have any other issued and outstanding shares of Preferred
Stock. Following the filing of the Certificate of Elimination, no shares of Preferred Stock will be designated as Series B-3 Preferred
Stock and all 178,180.34 shares of previously designated shares of Series B-3 Preferred Stock will return to their status as authorized
Preferred Stock available for issuance.
6
(b) The
Company’s Quarterly Report on Form 10-Q for the three months ended January 31, 2026, as filed with the SEC on March 16,
2026, accurately sets forth as of the dates specified therein (i) the shares of Common Stock issued and outstanding, (ii) the
shares of Common Stock held by the Company as treasury shares, (iii) the shares of Common Stock reserved for issuance upon the exercise
of outstanding options to purchase Common Stock or in connection with the settlement of outstanding vested or unvested restricted stock
units or performance shares awards issued pursuant to the Stock Plans or the vesting of outstanding unvested restricted stock units not
issued pursuant to the Stock Plans (assuming, in the case of any awards that are subject to the attainment of performance goals, that
applicable performance goals are attained at the maximum level) and (iv) the shares of Common Stock purchased by employees of the
Company under the Company’s employee stock purchase plan. As of immediately prior to the date hereof, zero shares of Series A
Preferred Stock were issued and outstanding, zero shares of Series A-1 Preferred Stock were issued and outstanding, zero shares
of Series B Preferred Stock were issued and outstanding, zero shares of Series B-1 Preferred Stock were issued and outstanding,
zero shares of Series B-2 Preferred Stock were issued and outstanding and 178,180.34 shares of Series B-3 Preferred Stock were
issued and outstanding. As of June 10, 2026, there are 29,961,431 shares of Common Stock issued and outstanding.
(c) All
of the issued and outstanding shares of Common Stock and Series B-4 Preferred Stock of the Company are, and when issued in accordance
with the terms hereof, the Issued Shares will be, duly authorized and validly issued and fully paid and non-assessable. The shares of
Common Stock issuable upon conversion of the Issued Shares (the “Conversion Shares”) have been reserved for issuance
and, when issued upon conversion thereof in accordance with the terms of the Series B-4 Certificate of Designations in accordance
with their terms will be validly issued and fully paid and non-assessable and will not be subject to any preemptive right or any restrictions
on transfer under applicable law or any contract to which the Company is a party, other than those under applicable state and federal
securities and antitakeover laws, this Agreement and the Series B-4 Registration Rights Agreement. When issued in accordance with
the terms hereof, the Issued Shares and the Conversion Shares will be free and clear of all liens (other than Permitted Liens).
(d) Except
as otherwise expressly described in this Agreement and the Series B-4 Certificate of Designations (once in effect), and the warrants
initially issued to certain lenders under the Existing Credit Agreement: (i) no subscription, warrant, option, convertible security
or other right issued by the Company to purchase or acquire any shares of capital stock of the Company is authorized or outstanding;
(ii) there is not any commitment of the Company to issue any subscription, warrant, option, convertible security or other such right
or to issue or distribute to holders of any shares of its capital stock; (iii) the Company has no obligation to purchase, redeem
or otherwise acquire any shares of its capital stock or to pay any dividend or make any other distribution in respect thereof; and (iv) there
are no agreements between the Company and any holder of its capital stock relating to the acquisition, disposition or voting of the capital
stock of the Company. No person or entity is entitled to any preemptive right granted by the Company with respect to the issuance of
any capital stock of the Company.
Section 2.5 Subsidiaries.
The Company, directly or indirectly, owns of record and beneficially, free and clear of all liens, pledges, mortgages, security interests
or other encumbrances or charges of any kind, other than Permitted Liens, all of the issued and outstanding capital stock or equity interests
of each of its Subsidiaries. All of the issued and outstanding capital stock or equity interests of the Company’s Subsidiaries
has been duly authorized and validly issued, and in the case of corporations, is fully paid and non-assessable. There are no outstanding
rights, options, warrants, preemptive rights, conversion rights, rights of first refusal or similar rights for the purchase or acquisition
from any of the Company’s Subsidiaries of any securities of such Subsidiaries nor are there any commitments to issue or execute
any such rights, options, warrants, preemptive rights, conversion rights or rights of first refusal.
7
Section 2.6 Private
Placement. Assuming the accuracy of the representations and warranties of the Investors set forth in Section 3.5 (Investment
Representations), the offer, issuance and exchange of the Issued Shares pursuant to this Agreement will be exempt from the registration
requirements of the Securities Act.
Section 2.7 SEC
Documents; Financial Information. Since August 1, 2023, the Company has timely filed (a) all annual and quarterly reports
and proxy statements (including all amendments, exhibits and schedules thereto) and (b) all other reports and other documents (including
all amendments, exhibits and schedules thereto), in each case required to be filed by the Company with the SEC pursuant to the Exchange
Act and the Securities Act except, in the case of clause (b), where the failure to file has not had, and would not reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect. As of their respective filing dates (or, if amended or superseded
by a filing prior to the date of this Agreement, on the date of such amended or superseding filing), such SEC Documents complied in all
material respects with the requirements of the Securities Act, the Exchange Act and the rules and regulations of the SEC thereunder
applicable to such SEC Documents, and as of their respective dates (or, if amended or superseded by a filing prior to the date of this
Agreement, on the date of such amended or superseding filing) none of the SEC Documents contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading. The financial statements of the Company included in the SEC Documents
(the “Financial Statements”) comply as of their respective dates in all material respects with applicable accounting
requirements and the rules and regulations of the SEC with respect thereto (except as may be indicated in the notes thereto or,
in the case of the unaudited statements, as permitted by Form 10-Q promulgated by the SEC), and present fairly in all material respects
as of their respective dates the consolidated financial position of the Company and its Subsidiaries as at the dates thereof and the
consolidated results of their operations and their consolidated cash flows for each of the respective periods, all in conformity with
GAAP, applied on a consistent basis during the periods involved (except as may be indicated in such Financial Statements or the notes
thereto and subject, in the case of the unaudited financial statements, to normal and recurring year-end and audit adjustments). There
is no transaction, arrangement or other relationship between the Company and/or any of its Subsidiaries and an unconsolidated or other
off-balance sheet entity that is required by applicable law to be disclosed by the Company in its SEC Documents and is not so disclosed.
Since July 31, 2025 through the date hereof, no event has occurred that has had, or would reasonably be expected to have, a Material
Adverse Effect. The Company and its Subsidiaries do not have any liabilities or obligations that would be required under GAAP, as in
effect on the date of this Agreement, to be reflected on a consolidated balance sheet of the Company (accrued, absolute, contingent or
otherwise), other than liabilities or obligations (i) reflected on, reserved against, or disclosed in the notes to, the Company’s
most recent consolidated balance sheet included in the SEC Documents, (ii) that were incurred after the date of the Company’s
most recent consolidated balance sheet included in the SEC Documents in the ordinary course of business, (iii) as expressly contemplated
by this Agreement or otherwise incurred in connection with the transactions contemplated by this Agreement, (iv) that have been
discharged or paid prior to the date of this Agreement, or (v) as have not had, and would not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect.
8
Section 2.8 Internal
Control Over Financial Reporting. The Company has disclosed, based on its most recent evaluation prior to the date hereof, to the
Company’s outside auditors and the Audit Committee of the Board of Directors (a) any significant deficiencies and material
weaknesses in the design or operation of internal control over financial reporting (as defined in Rule 13a-15(f) under the
Exchange Act) that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial
information and (b) any fraud, whether or not material, that involves management or other employees who have a significant role
in the Company’s internal control over financial reporting.
Section 2.9 Disclosure
Controls and Procedures. The Company has established and maintains disclosure controls and procedures (as such term is defined in
Rule 13a-15 and 15d-15 under the Exchange Act) that are designed to provide reasonable assurance that material information relating
to the Company, including its Subsidiaries, that is required to be disclosed by the Company in the reports that it furnishes or files
under the Exchange Act is reported within the time periods specified in the rules and forms of the SEC and that such material information
is communicated to the Company’s management to allow timely decisions regarding required disclosure.
Section 2.10 Litigation.
There is no litigation or governmental proceeding pending or, to the knowledge of the Company, threatened in writing, against the Company
or any of its Subsidiaries or affecting any of the business, operations, properties or assets of the Company or any of its Subsidiaries
which, in any such case, would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. Neither the
Company nor any of its Subsidiaries is in default with respect to any order, writ, injunction, decree, ruling or decision of any court,
commission, board or other government agency that is expressly applicable to the Company or any of its Subsidiaries which, in any such
case, would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
Section 2.11 Compliance
with Laws; Permits. The Company and its Subsidiaries are in compliance with all applicable laws, except as has not had, and would
not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. The Company and its Subsidiaries possess
all permits and licenses of governmental authorities that are required to conduct their business as currently conducted, except as has
not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
Section 2.12 Taxes.
The Company and each of its Subsidiaries has filed all Tax Returns required to be filed within the applicable periods for such filings
(with due regard to any extension) and has timely paid all Taxes required to be paid (whether or not shown as due on a Tax Return), except
for any such failures to file or pay that have not had, and would not reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect. The Company is not, and it has never been, a “United States real property holding corporation”
within the meaning of Section 897 of the Code, and the Company has filed with the Internal Revenue Service all statements, if any,
that are required under Section 1.897-2(h) of the Treasury Regulations. There are no unpaid taxes in any material amount claimed
to be due by the taxing authority of any jurisdiction, and the officers of the Company and its Subsidiaries know of no basis for any
such claim. There is no deficiency for any material amount of taxes has been asserted or assessed by any governmental authority in writing
against the Company or any Subsidiary, which deficiency has not been paid or resolved. There are no material audit or other proceeding
by any governmental authority is currently in progress, pending or threatened in writing against the Company or any Subsidiary with respect
to any taxes due from such entities. Neither the Company nor any of its Subsidiaries are currently contesting any material tax liability
before any governmental authority.
9
Section 2.13 Employee
and Labor Matters. Except where the failure to comply has not had, and would not reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect, (a) the Company and its Subsidiaries are in compliance with all applicable laws relating
to labor, employment, fair employment practices, terms and conditions of employment, and wages and hours, and with the terms of the ERISA
Documents, and (b) each such ERISA Document is in compliance with all applicable requirements of ERISA. None of the Company, its
Subsidiaries and their respective directors, officers, employees or agents has engaged in any transaction that would reasonably be expected
to subject the Company or any of its Subsidiaries, directly or indirectly, to any tax or civil penalty that would reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Effect. Since January 1, 2023, there have not been any strikes,
labor disputes, lockouts, slowdowns or other material labor disputes against the Company or any of its Subsidiaries pending, or to the
knowledge of the Company, threatened. To the knowledge of the Company, except as would not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect, the execution and delivery of this Agreement and the other agreements contemplated hereby
and the consummation of the transactions contemplated hereby and thereby do not and will not give rise to any right of termination or
any payment right under any employment or consulting agreement to which the Company or any of its Subsidiaries is a party or any right
of renegotiation on the part of any union under any collective bargaining agreement by which the Company or any of its Subsidiaries is
bound.
Section 2.14 Environmental
Matters. The Company and its Subsidiaries are in compliance with all applicable Requirements of Environmental Law, except where the
failure to comply has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
The Company and its Subsidiaries have not received within the past three years any written notice from any Governmental Entity of any
violation or alleged violation of any Requirements of Environmental Law in connection with their respective properties, except as has
not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
Section 2.15 Registration
Rights. Except as provided in this Agreement, the Series B-3 Registration Rights Agreement or the Series B-4 Registration
Rights Agreement or disclosed in the SEC Documents (including any prior registration rights agreements), the Company has not granted
any rights to register under the Securities Act any of its presently outstanding securities or any of its securities that may be issued
subsequently.
10
Section 2.16 Investment
Company Act. The Company is not, and immediately after giving effect to the exchange and issuance, as applicable, of the Issued Shares
in accordance with this Agreement and the application of the proceeds thereof will not be required to be registered as, an “investment
company” or a company “controlled” by an “investment company,” within the meaning of the Investment Company
Act.
Section 2.17 Nasdaq.
As of the date hereof, the Company’s Common Stock is listed on the Nasdaq Stock Market, and no event has occurred, and the Company
is not aware of any event that is reasonably likely to occur, that would result in the Common Stock being delisted from the Nasdaq Stock
Market. The Company is in compliance in all material respects with applicable continued listing requirements of the Nasdaq Stock Market.
Section 2.18 Properties.
Each of the Company and its Subsidiaries has good title to, or valid leasehold interests in, all its real and personal property material
to its business free and clear of any liens, pledges, mortgages, security interests or other encumbrances or charges of any kind, except,
in each case, as would not reasonably be expected to result in a Material Adverse Effect, and for Permitted Liens. Except as have not
had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (i) each of the
Company and its Subsidiaries exclusively owns, or is validly licensed to use, or otherwise has the valid right to use, all trademarks,
tradenames, copyrights, patents and other intellectual property used in, held for use in or necessary to its business as currently conducted
free and clear of any liens, pledges, mortgages, security interests or other encumbrances or charges of any kind, except for Permitted
Liens, and (ii) neither the use thereof, or the operation of the Company’s and its Subsidiaries businesses, by the Company
and each Subsidiary infringes upon, violates or misappropriates (or has infringed upon, violated or misappropriated) the rights of any
other Person. No claim or litigation regarding any trademarks, tradenames, copyrights, patents or other intellectual property owned by,
used by, or held for use by the Company or its Subsidiaries (including any claims or litigations challenging the validity or enforceability
thereof) is pending or, to the knowledge of the Company, threatened against the Company or any Subsidiary of the Company that, individually
or in the aggregate, would reasonably be expected to result in a Material Adverse Effect. All (i) trademark and service mark registrations
and applications, (ii) patents and patent applications, (iii) copyright registrations and applications, and (iv) domain
name registrations, in each case, owned or purported to be owned by the Company or a Subsidiary, is subsisting, valid, and enforceable,
except, individually or in the aggregate, as would not reasonably be expected to result in a Material Adverse Effect. The Company and
its Subsidiaries have taken commercially reasonable measures to maintain and protect their right, title and interest in all intellectual
property owned or purported to be owned by the Company or a Subsidiary, and the Company has maintained the confidentiality of all confidential
information and trade secrets in its possession, except, in each case, as would not reasonably be expected to result in a Material Adverse
Effect.
Section 2.19 Privacy
and Data Security. Except as would not reasonably be expected to result in a Material Adverse Effect, (a) the Company and its
Subsidiaries have established written privacy policies applicable to the collection, use, disclosure, maintenance and transmission of
Personal Data, (b) each of the Company and its Subsidiaries is in compliance in all material respects with their written privacy
policies, contracts which impose requirements relating to the collection, processing, storage, disclosure, disposal or other handling
of Personal Data, any applicable laws relating to privacy, data protection, anti-spam, personal information and similar consumer protection
laws, and any applicable industry standards which impose requirements on the collection, processing, storage, disclosure, disposal or
other handling of Personal Data (collectively, the “Privacy Requirements”). Except as would not reasonably be expected
to result in a Material Adverse Effect, neither the operation by the Company or any of its Subsidiaries of any its websites nor the content
thereof or data processed, collected, stored or disseminated by such entity in connection therewith, violates in any material respect
any applicable law regarding privacy, data protection, anti-spam, personal information and similar consumer protection laws. Since January 1,
2022, none of the Company nor any of its Subsidiaries has experienced (i) incidents of unauthorized access or other security breaches,
including any loss, misuse, damage, unauthorized access, unauthorized disclosure or unauthorized use of any Personal Data, or (ii) any
other event that the Company or any of its Subsidiaries required a data breach notice to any Person or Governmental Entity under Privacy
Requirements, except, in each case, as would not reasonably be expected to result in a Material Adverse Effect. Except as, individually
or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect, the hardware, software, databases, web
sites, mobile applications, servers, workstations, routers, hubs, switches, circuits, networks, communications networks, and other information
technology owned, licensed, leased or otherwise used, distributed or held for use by the Company or its Subsidiaries (i) have not,
within the three (3) years prior to the date of this Agreement, malfunctioned or failed in a manner that resulted in chronic
or otherwise material disruptions to the operation of the business of the Company and its Subsidiaries, and (ii) are adequate for
the Company’s and its Subsidiaries’ businesses as currently conducted.
11
Section 2.20 Insurance.
As of the date of this Agreement, the insurance policies of the Company and its Subsidiaries are in full force and effect and all premiums
in respect of such insurance have been timely paid except, in each case, as would not reasonably be expected to result in a Material
Adverse Effect. Except as would not reasonably be expected to result in a Material Adverse Effect, the Company believes that the insurance
maintained by or on behalf of the Company and the Subsidiaries is in such amounts and against such risks as is (a) customarily maintained
by companies of established repute engaged in the same or similar businesses operating in the same or similar locations and (b) adequate
for the type of business conducted by the Company and its Subsidiaries.
Section 2.21 No
Brokers or Finders. No Person has or will have, as a result of the transactions contemplated by this Agreement, any right, interest
or claim against or upon the Company, any of its Subsidiaries or the Investors for any commission, fee or other compensation as a finder
or broker because of any act of the Company or any of its Subsidiaries.
Section 2.22 Illegal
Payments; FCPA Violations. Except as has not had, and would not reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect, since January 1, 2022, none of the Company, any of its Subsidiaries or, to the knowledge of the Company,
any officer, director, employee, agent, representative or consultant acting on behalf of the Company or any of its Subsidiaries (and
only in their capacities as such) has, in connection with the business of the Company: (a) unlawfully offered, paid, promised to
pay, or authorized the payment of, directly or indirectly, anything of value, including money, loans, gifts, travel, or entertainment,
to any Government Official with the purpose of (i) influencing any act or decision of such Government Official in his or her official
capacity; (ii) inducing such Government Official to perform or omit to perform any activity in violation of his or her legal duties;
(iii) securing any improper advantage; or (iv) inducing such Government Official to influence or affect any act or decision
of such Governmental Entity, except, with respect to the foregoing clauses (i) through (iv), as permitted under the U.S. Foreign
Corrupt Practices Act or other applicable law; (b) made any illegal contribution to any political party or candidate; (c) made,
offered or promised to pay any unlawful bribe, payoff, influence payment, kickback, unlawful rebate, or other similar unlawful payment
of any nature, directly or indirectly, in connection with the business of the Company, to any Person, including any supplier or customer;
(d) knowingly established or maintained any unrecorded fund or asset or made any false entry on any book or record of the Company
or any of its Subsidiaries for any purpose; or (e) otherwise violated the U.S. Foreign Corrupt Practices Act of 1977, as amended,
the UK Bribery Act 2010, as amended, or any other applicable anti-corruption or anti-bribery law.
12
Section 2.23 Economic
Sanctions. Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse
Effect, the Company is not in contravention of any sanction, and has not engaged in any conduct sanctionable, under U.S. economic sanctions
laws, including applicable laws administered and enforced by the U.S. Department of the Treasury’s Office of Foreign Assets Control,
31 C.F.R. Part V, the Iran Sanctions Act, as amended, the Comprehensive Iran Sanctions, Accountability and Divestment Act, as amended,
the Iran Threat Reduction and Syria Human Rights Act, as amended, the Iran Freedom and Counter-Proliferation Act of 2012, as amended,
and any executive order issued pursuant to any of the foregoing.
Section 2.24 No
Integrated Offering. Neither the Company, nor any of its Affiliates, nor any Person acting on its or their behalf has, directly or
indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would cause
this offering, issuance, and exchange for the Issued Shares, as applicable, to be integrated with prior offerings by the Company for
purposes of (i) applicable federal securities laws which would require the registration of any such securities under such laws,
or (ii) any applicable shareholder approval provisions of the Nasdaq Stock Market.
Section 2.25 Shell
Company Status. The Company is not, and has never been, an issuer identified in, or subject to, Rule 144(i)(1) of the Securities
Act.
Section 2.26 Accounting.
Neither any transaction contemplated herein, issuance, offer and exchange of the Issued Shares, nor any commission or fee contemplated
herein or in any other transaction document shall be treated as compensatory for purposes of GAAP.
Section 2.27 No
Additional Representations. Except for the representations and warranties made by the Company in this Article II, neither
the Company nor any other Person makes any express or implied representation or warranty with respect to the Company or any Subsidiaries
or their respective businesses, operations, assets, liabilities, employees, employee benefit plans, conditions or prospects, and the
Company hereby disclaims any such other representations or warranties. In particular, without limiting the foregoing disclaimer, neither
the Company nor any other Person makes or has made any representation or warranty to the Investors, or any of their Affiliates or representatives,
with respect to (a) any financial projection, forecast, estimate, budget or prospect information relating to the Company or any
of its Subsidiaries or their respective business, or (b) any oral or written information presented to the Investors or any of their
Affiliates or representatives in the course of their due diligence investigation of the Company, the negotiation of this Agreement or
in the course of the transactions contemplated hereby. Notwithstanding anything to the contrary herein, nothing in this Agreement shall
limit the right of the Investors and their Affiliates to rely on the representations and warranties expressly set forth in this Article II,
nor will anything in this Agreement operate to limit any claim by any Investor or any of its respective Affiliates for Fraud.
13
Section 2.28 No
Reliance on Investor Representations. The Company acknowledges and agrees, on behalf of itself and its Affiliates, that, except for
the representations and warranties contained in Article III, neither the Investors nor any other Person, makes any express
or implied representation or warranty with respect to the Investors, their Affiliates or their respective businesses, operations, assets,
liabilities, employees, conditions or prospects, and the Company, on behalf of itself and its Affiliates, hereby disclaims reliance upon
any such other representations or warranties.
Section 2.29 Holding
Period. For the purposes of Rule 144 of the Securities Act, the Company hereby acknowledges and agrees that (i) the holding
period of the Exchanged Shares (and the shares of Common Stock issued pursuant to the terms of the Exchanged Shares) may be tacked onto
the holding period of the Issued Shares received in respect of such Exchanged Shares and (ii) it will not to take a position contrary
to clause (i) above.
ARTICLE III.
REPRESENTATIONS
AND WARRANTIES OF THE INVESTORS
Each Investor, severally
and not jointly, represents and warrants to the Company as of the date of this Agreement, as of the Closing (except to the extent made
only as of a specified date, in which case such representation and warranty is made as of such date), as to itself only, that:
Section 3.1 Organization
and Power. Each Investor is a limited liability company or a limited partnership, duly formed, validly existing and in good standing
under the laws of the jurisdiction of its formation and has all requisite limited liability company, limited partnership or other entity
power and authority necessary to own its properties and to carry on its business as presently conducted.
Section 3.2 Authorization,
Etc.
(a) Each
Investor has all necessary limited liability company, limited partnership or other entity power and authority and has taken all necessary
actions required for the due authorization, execution, delivery and performance by such Investor of this Agreement and the other agreements
contemplated hereby and the consummation by such Investor of the transactions contemplated hereby and thereby.
(b) The
authorization, execution, delivery and performance by each Investor of this Agreement and the other agreements contemplated hereby, and
the consummation by such Investor of the transactions contemplated hereby and thereby do not and will not: (a) violate or result
in the breach of any organizational documents of such Investor; or (b) with the exceptions that are not reasonably likely to have,
individually or in the aggregate, a material adverse effect on its ability to perform its obligations under this Agreement and the other
agreements contemplated hereby: (i) violate any provision of, constitute a breach of, or default under, any judgment, order, writ,
or decree applicable to such Investor or any material contract to which such Investor is a party; or (ii) violate any provision
of, constitute a breach of, or default under, any applicable state, federal or local law, rule or regulation.
14
(c) This
Agreement has been, and the other agreements contemplated hereby, at the Closing will be, duly executed and delivered by each Investor.
Assuming due execution and delivery thereof by the other parties hereto or thereto, this Agreement and the other agreements contemplated
hereby will each be a valid and binding obligation of each Investor enforceable against such Investor in accordance with its terms, except
as the enforceability may be limited by applicable laws relating to bankruptcy, insolvency, reorganization, moratorium or other similar
legal requirement relating to or affecting creditors’ rights generally and except as the enforceability is subject to general principles
of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
Section 3.3 Government
Approvals. No consent, approval, license or authorization of, or filing with, any court or governmental authority is or will be required
on the part of each Investor in connection with the execution, delivery and performance by such Investor of this Agreement and the other
agreements contemplated hereby, except for: (a) those which have already been made or granted; (b) the filing with the SEC
of a Schedule 13D or Schedule 13G to report ownership of the Issued Shares or the Conversion Shares; (c) the filing with the SEC
of any filings under Section 16 of the Exchange Act; or (d) those where the failure to obtain such consent, approval or license
would not have a material adverse effect on the ability of such Investor to perform its obligations hereunder.
Section 3.4 Title.
Such Investor holds of record and owns beneficially all of the Exchanged Shares set forth opposite the name of such Investor on Exhibit B,
free and clear of any liens (other than Permitted Liens).
Section 3.5 Investment
Representations.
(a) Each
Investor is an “accredited investor” as that term is defined in Rule 501(a) of Regulation D promulgated under the
Securities Act.
(b) Each
Investor has been advised by the Company that the Issued Shares have not been registered under the Securities Act, that the Issued Shares
will be issued on the basis of the statutory exemption provided by Section 4(a)(2) under the Securities Act or Regulation D
promulgated thereunder, or both, relating to transactions by an issuer not involving any public offering and under similar exemptions
under certain state securities laws, that this transaction has not been reviewed by, passed on or submitted to any federal or state agency
or self-regulatory organization where an exemption is being relied upon, and that the Company’s reliance thereon is based in part
upon the representations made by each Investor in this Agreement. Each Investor acknowledges that it has been informed by the Company
of, or is otherwise familiar with, the nature of the limitations imposed by the Securities Act and the rules and regulations thereunder
on the transfer of securities.
15
(c) Each
Investor is acquiring the Issued Shares for its own account and not with a view to, or for sale in connection with, any distribution
thereof in violation of federal or state securities laws.
(d) By
reason of its business or financial experience, each Investor has the capacity to protect its own interest in connection with the transactions
contemplated hereunder.
(e) The
Company has provided to each Investor all documents and information that such Investor has requested relating to an investment in the
Company. Each Investor recognizes that investing in the Company involves substantial risks, and has taken full cognizance of and understands
all of the risk factors related to the Issued Shares. Each Investor has carefully considered and has, to the extent it believes such
discussion necessary, discussed with such Investor’s professional legal, tax and financial advisers the suitability of and risks
relating to an investment in the Company, and each Investor has determined that an investment in the Issued Shares is a suitable investment
for such Investor and that it can bear the economic risk of a total loss in respect of such investment. No Investor has relied on the
Company for any tax or legal advice in connection with the exchange and issuance, as applicable, of the Issued Shares. In evaluating
the suitability of an investment in the Company, no Investor has relied upon any representations or other information relating to the
Company (other than the representations and warranties of the Company expressly set forth in Article II).
Section 3.6 No
Brokers or Finders. No Person has or will have, as a result of the transactions contemplated by this Agreement, any right, interest
or claim against or upon the Company, any of its Subsidiaries or any Investor for any commission, fee or other compensation as a finder
or broker because of any act by each Investor.
Section 3.7 No
Covered Transaction. No Investor is a Foreign Person within the meaning of 31 C.F.R. § 800.224. No Investor’s direct or
indirect participation in the transaction described in this Agreement would cause such transaction to be a “covered transaction”
within the meaning of 50 U.S. Code § 4565(a)(4).
Section 3.8 No
Additional Representations. Except for the representations and warranties made by the Investors (severally and not jointly) in this
Article III, neither the Investors nor any other Person makes any express or implied representation or warranty with respect
to the Investors, their Affiliates or their respective businesses, operations, assets, liabilities, employees, employee benefit plans,
conditions or prospects, and the Investors, on behalf of themselves and their respective Affiliates and their respective directors, officers,
employees, agents and other representatives, hereby disclaim any such other representations or warranties. Notwithstanding anything to
the contrary herein, nothing in this Agreement shall limit the right of the Company and its Affiliates to rely on the representations,
warranties, covenants and agreements expressly set forth in this Article III, nor will anything in this Agreement operate
to limit any claim by the Company and its Affiliates for Fraud.
Section 3.9 No
Reliance. Each Investor acknowledges and agrees, on behalf of itself and its Affiliates, that, except for the representations and
warranties contained in Article II, neither the Company nor any other Person, makes any express or implied representation
or warranty with respect to the Company, its Subsidiaries or their respective businesses, operations, assets, liabilities, employees,
employee benefit plans, conditions or prospects, and each Investor, on behalf of itself and its Affiliates, hereby disclaims reliance
upon any such other representations or warranties. In particular, without limiting the foregoing disclaimer, each Investor acknowledges
and agrees, on behalf of itself and its Affiliates, that neither the Company nor any other Person, makes or has made any representation
or warranty with respect to, and each Investor, on behalf of itself and its Affiliates, hereby disclaims reliance upon (a) any financial
projection, forecast, estimate, budget or prospect information relating to the Company, its Subsidiaries or their respective business,
or (b) without limiting the representations and warranties made by the Company in Article II, any information presented
to each Investor or any of its Affiliates or representatives in the course of their due diligence investigation of the Company, the negotiation
of this Agreement or in the course of the transactions contemplated hereby.
16
ARTICLE IV.
COVENANTS
OF THE PARTIES
Section 4.1 Board
of Directors. The Investors shall have the right to nominate one director to the Board of Directors (the “Series B-4
Director”) and one observer to the Board of Directors (the “Series B-4 Observer”), in each case, to
the extent provided in the Certificate of Designations. In connection with the appointment of the Series B-4 Director to the Board
of Directors (to the extent not already a member of the Board of Directors), the Company has entered into an Indemnification Agreement
with the Series B-4 Director. For the avoidance of doubt, the Indemnification Agreement shall remain in full force and effect.
Section 4.2 Public
Announcement. No later than 4:30 p.m. on June 17, 2026, the Company shall file a Current Report on Form 8-K with the
SEC describing the material terms of the transactions contemplated by this Agreement, including the Exhibits hereto, and attaching as
exhibits any documents related to such transactions as are required by SEC rules and regulations.
Section 4.3 Restrictions
on Transfer(a) .
(a) Restricted
Securities shall not be Transferred except upon satisfaction of the conditions specified in Section 4.4, which conditions
are intended to ensure compliance with the provisions of the Securities Act. Any attempted Transfer in violation of this Section 4.3
shall be void ab initio.
(b) At
any time between the Closing Date and the Voting Right Expiration Date, upon reasonable written notice from the Company to the Investors,
the Investors will promptly provide the Company with information regarding the amount of the securities of the Company beneficially owned
by each such Investor or Affiliates thereof.
(c) Upon
Closing, this Section 4.3 shall supersede and replace Section 4.3 of the Existing Subscription and Exchange Agreement,
and Section 4.3 of the Existing Subscription and Exchange Agreement shall be terminated.
17
Section 4.4 Restrictive
Legends.
(a) All
Issued Shares and Conversion Shares (unless otherwise permitted by the provisions of Section 4.4(c)) shall be stamped or
otherwise imprinted with a legend in substantially the following form (in addition to any legend required under applicable state securities
laws):
“THE OFFER AND SALE OF THIS SECURITY
AND THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT of 1933, as amended (the “Securities Act”), AND THIS SECURITY AND SUCH SHARES MAY NOT BE OFFERED,
SOLD OR OTHERWISE TRANSFERRED EXCEPT (A) PURSUANT TO A REGISTRATION STATEMENT THAT IS EFFECTIVE UNDER THE SECURITIES ACT;
OR (B) PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. NOTWITHSTANDING
THE FOREGOING, THE SECURITIES MAY BE PLEDGED AS PERMITTED BY THE EXCHANGE AGREEMENT, DATED AS OF JUNE 14, 2026.”
(b) In
addition, for so long as the Issued Shares or the Conversion Shares are subject to the restrictions set forth in Section 4.3,
each certificate representing such shares shall be stamped or otherwise imprinted with a legend in substantially the following form:
“THE SECURITIES REPRESENTED BY
THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON TRANSFER SET FORTH IN THE EXCHANGE AGREEMENT, DATED AS OF JUNE 14, 2026, BY AND AMONG
THE COMPANY AND THE INVESTORS NAMED THEREIN. THE COMPANY WILL MAIL TO THE HOLDER OF THIS CERTIFICATE A COPY OF SUCH EXCHANGE AGREEMENT,
AS IN EFFECT ON THE DATE OF MAILING, WITHOUT CHARGE, PROMPTLY AFTER RECEIPT OF A WRITTEN REQUEST THEREFOR.”
(c) Each
Investor consents to the Company making a notation on its records and giving instructions to any transfer agent of the applicable Issued
Shares or the Conversion Shares in order to implement the restrictions on transfer set forth in this Section 4.4.
18
(d) Prior
to any proposed Transfer of any Restricted Securities, unless there is in effect a registration statement under the Securities Act covering
the proposed Transfer, the applicable Investor shall give written notice to the Company of such Investor’s intention to effect
such Transfer (“Transfer Notice”). Each such notice shall describe the manner and circumstances of the proposed Transfer
in sufficient detail, and shall be accompanied by either (i) an opinion of legal counsel reasonably satisfactory to the Company
to the effect that the proposed Transfer of the Restricted Securities may be effected without registration under the Securities Act,
or (ii) any other evidence reasonably satisfactory to counsel to the Company, whereupon such Investor shall be entitled to Transfer
such Restricted Securities in accordance with the Transfer Notice. Notwithstanding the foregoing, if the applicable Investor gives the
Company a representation letter containing such representations as the Company may reasonably request, the Company will not require such
legal opinion or such other evidence (A) in a routine sales transaction in compliance with Rule 144 under the Securities Act,
or (B) in any transaction in which an Investor that is a partnership or limited liability company distributes Restricted Securities
solely to its Affiliates (including affiliated fund partnerships), or partners or members of such Investor or its Affiliates for no consideration.
Each certificate evidencing the Restricted Securities transferred shall bear the appropriate restrictive legend set forth in Sections
4.4(a) and (b), except that such certificate shall not bear the first such restrictive legend if such legend is not required
in order to establish compliance with any provisions of the Securities Act. Upon the request of an Investor holding a certificate bearing
the first such restrictive legend and, if necessary, the appropriate evidence as required by clause (i) or (ii) above, the
Company shall, within two (2) Business Days of the request, remove the first such restrictive legend from such certificate and from
the certificate to be issued to the applicable transferee if such legend is not required in order to establish compliance with any provisions
of the Securities Act. If an Investor holds a certificate bearing the second restrictive legend, upon the written request of such Investor,
the Company shall remove such restrictive legend from such certificate when the provisions of Section 4.3 are no longer applicable
to the applicable shares represented by such certificate.
Section 4.5 Access
to Information. Until the date no Series B-4 Preferred Stock remains outstanding, the Company shall (a) afford to any member
of the Investor Group (as defined below), access during normal business hours and upon reasonable advance notice to the Company’s
properties, books and records and contracts; (b) make available to any member of the Investor Group copies of all such contracts,
books and records and other existing documents and data in the Company’s possession or control as such member of the Investor Group
may reasonably request; and (c) make available to any member of the Investor Group during normal business hours and upon reasonable
advance notice the appropriate management personnel of the Company (and the Company shall use commercially reasonable efforts to cause
its attorneys, accountants and other professionals to be made available to the Investor Group) for discussion of the business and personnel
as the Investor may reasonably request, in each case so long as such access does not reasonably interfere with the operations of the
Company or its business; provided, however, that nothing in this Section 4.5 shall require the Company to provide access
to or furnish to any member of the Investor Group any information or materials if such access or disclosure would jeopardize the attorney-client
privilege of the Company with respect to such information or materials or violate any Laws to which the Company is subject.
Section 4.6 Financial
Statements and Other Information.
(a) If
between the Closing Date and the Voting Right Expiration Date, the Common Stock is deregistered under the Exchange Act and the Company
is no longer required to file periodic reports with the SEC, until the Voting Right Expiration Date, the Company shall deliver to each
of the Investors:
(i) as
soon as available, but in any event within 90 days after the end of each fiscal year of the Company, its audited consolidated (and unaudited
consolidating) balance sheet and audited consolidated (and unaudited consolidating) statements of operations and comprehensive income,
stockholders’ equity and cash flows as of the end of and for such fiscal year, and related notes thereto, setting forth in each
case in comparative form the figures for the previous fiscal year, all reported on by Deloitte & Touche LLP or other independent
public accountants of recognized national standing to the effect that such financial statements present fairly in all material respects
the financial condition, results of operations and cash flow of the Company and the Subsidiaries on a consolidated basis as of the end
of and for such fiscal year in accordance with GAAP consistently applied and accompanied by a narrative management’s discussion
and analysis report describing the financial position, results of operations and cash flows of the Company and the consolidated Subsidiaries;
and
19
(ii) as
soon as available, but in any event within 45 days after the end of each of the first three fiscal quarters of each fiscal year of the
Company, its unaudited consolidated and consolidating balance sheet and unaudited consolidated and consolidating statements of operations
and comprehensive income, stockholders’ equity and cash flows as of the end of and for such fiscal quarter and the then elapsed
portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or,
in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by the Chief Financial Officer of the Company
(or equivalent) as presenting fairly in all material respects the financial condition, results of operations and cash flows of the Company
and the Subsidiaries on a consolidated basis as of the end of and for such fiscal quarter and such portion of the fiscal year in accordance
with GAAP consistently applied, subject to normal year-end audit adjustments and reduced footnote disclosures, and accompanied by a narrative
management’s discussion and analysis report describing the financial position, results of operations and cash flows of the Company
and the consolidated Subsidiaries;
(b) Notwithstanding
the foregoing, financial statements and other reports required to be delivered pursuant to this Section 4.6 filed by the
Company with the SEC and available on EDGAR (or such other free, publicly-accessible internet database that may be established and maintained
by the SEC as a substitute for or successor to EDGAR) shall be deemed to have been delivered to the Investors on the date on which the
Company posts such documents to EDGAR (or such other free, publicly-accessible internet database that may be established and maintained
by the SEC as a substitute for or successor to EDGAR).
(c) Between
the Closing Date and the Voting Right Expiration Date, the Investors or their representatives shall have the reasonable right to consult
from time to time, but not more frequently than once per quarter, with the senior officers of the Company at its principal place of business
or virtually (as determined by the Company) regarding operating and financial matters of the Company; provided that the exercise
of such right does not materially interfere with the operations of the business of the Company and its Subsidiaries.
Section 4.7 Consent
to the Transactions.
(a) Each
Investor hereby irrevocably and unconditionally consents to and approves, in each case, in accordance with Section 9(b) of
the Company’s Certificate of Designations of the Series B-3 Convertible Preferred Stock (the “Series B-3 Certificate
of Designations”), the Securities Purchase Agreement and the Ancillary Agreements to which the Company is a party and the transactions
contemplated by the Securities Purchase Agreement and the Ancillary Agreements (collectively, the “Transactions”).
The Company acknowledges that the consent granted hereunder shall not apply to any amendment, supplement, modification or waiver of any
provision of the Securities Purchase Agreement in such manner that would reasonably be expected to be adverse in any material respect
to the interests of the Magnetar Investors or any of their Affiliates, including, but not limited to, (i) a decrease of the Final
Aggregate Closing Consideration (as defined in the Securities Purchase Agreement) in any material respect (it being understood and agreed
that the resolution of any purchase price adjustment pursuant to Section 2.4 of the Securities Purchase Agreement shall not be deemed
an amendment, supplement, modification or waiver that requires the consent of the Investors) or a change to the Securities Purchase Agreement
to permit the payment of the Estimated Aggregate Closing Consideration or the Positive Purchase Price Adjustment Amount (each, as defined
in the Securities Purchase Agreement) in a form other than cash or (ii) imposing any obligations with regard to shares of Preferred
Stock or debt securities of the Company held by the Magnetar Investors or any of their Affiliates in a manner that would reasonably be
expected to be adverse in any material respect to Magnetar Investors or any of their Affiliates, such as any consent rights for the Buyer
with regard to contracts to which the Magnetar Investors or any of their Affiliates are parties governing the rights or obligations of
such shares or debt securities, unless such amendment, supplement, modification or waiver has obtained the affirmative vote or written
consent of the Magnetar Investors.
20
(b) Without
limiting the generality of the other covenants and agreements of the Investors under this Agreement (including Section 4.7(a)),
and notwithstanding anything to the contrary in the Series B-3 Certificate of Designations, each Investor, on behalf of itself and
its past, present, and future representatives and Affiliates and their respective successors, heirs and assigns (the “Investor
Related Parties”), hereby acknowledges and agrees that the consummation of the Transactions shall not constitute, or result
in the occurrence of, a “Change of Control”, an “Asset Sale Trigger”, or the acceleration of the “Optional
Repurchase Trigger Date”, each for all purposes of, and as defined in, the Series B-3 Certificate of Designations, and irrevocably
waives (A) any liquidation or other event in respect of the Transactions pursuant to Section 6 of the Series B-3 Certificate
of Designations, and (B) any rights to repayment or repurchase of the shares of Series B-3 Preferred Stock owned or controlled
by it or any of its Investor Related Parties (the “Subject Company Shares”) in connection with the Transactions, including
in respect of any “Asset Sale Put Rights”, “Optional Repurchase Rights” or “Asset Sale Call Rights”
pursuant to Section 7 or Section 8 of the Series B-3 Certificate of Designations.
(c) For
the avoidance of doubt, the foregoing commitments in this Section 4.7 apply to any Subject Company Shares held by any trust,
limited partnership or other entity directly or indirectly holding Subject Company Shares over which the applicable Investor exercises
direct or indirect voting control.
(d) Each
Investor acknowledges and agrees that the Company is entering into the Securities Purchase Agreement in reliance upon such Investor entering
into this Agreement and agreeing to be bound by, and perform, or otherwise comply with the agreements, covenants and obligations applicable
to the Investor contained in this Agreement (including this Section 4.7) and but for such Investor entering into this Agreement
and agreeing to be bound by, and perform, or otherwise comply with, the agreements, covenants and obligations applicable to such Investor
contained in this Agreement (including this Section 4.7), the Company would not have entered into the Securities Purchase
Agreement or agreed to consummate the Transactions. The consent, agreement and waiver set forth in this Section 4.7 shall
be effective as of the date of this Agreement.
21
Section 4.8 Information;
Confidentiality.
(a) The
Company shall not, and shall cause each of its Subsidiaries and its and each of their respective officers, directors and employees to
not, and shall direct and use commercially reasonable efforts to cause its attorneys, representatives and agents to not, provide any
Investor or their Affiliates (excluding the Investors’ designee serving on the Board of Directors of the Company) with any material
non-public information under U.S. federal securities laws regarding the Company or any of its Subsidiaries if not specifically requested
by such Investor or without the express prior consent of such Investor; provided that the Company shall have the ability to cure any
inadvertent disclosure of material non-public information prohibited by this Section 4.8(a) by promptly making a public
disclosure thereof.
(b) Until
the one year anniversary following the Voting Right Expiration Date, the Investors shall, and shall cause their respective Affiliates
and Representatives who actually receive Confidential Information to, keep confidential any information (including oral, written and
electronic information) concerning the Company, its Subsidiaries or its Affiliates that may be furnished to the Investor, its Affiliates
or its or their respective Representatives by or on behalf of the Company or any of its Representatives pursuant to this Agreement or
in connection with the transactions contemplated hereby (“Confidential Information”) and to use the Confidential Information
solely for the purposes of monitoring, administering or managing the Investors’ investment in the Company made pursuant to this
Agreement; provided that Confidential Information will not include information that (a) was or becomes available to the public other
than as a result of a breach of any confidentiality obligation in this Agreement by an Investor or its Affiliates or their respective
Representatives, (b) was or becomes available to an Investor or its Affiliates or their respective Representatives from a source
other than the Company or its Representatives; provided that such source is reasonably believed by such Investor or such Affiliates not
to be subject to an obligation of confidentiality (whether by agreement or otherwise), (c) at the time of disclosure is already
in the possession of an Investor or its Affiliates or their respective Representatives from a source other than the Company or any of
its Subsidiaries or any of their respective Representatives, (d) was independently developed by an Investor or its Affiliates or
their respective Representatives without reference to, incorporation of, or other use of any Confidential Information; provided that
the Investor may disclose Confidential Information (i) to its attorneys, accountants, consultants and financial and other professional
advisors to the extent necessary to obtain their services in connection with its investment in the Company, (ii) to any Affiliate,
partner, member, limited partners, prospective partners or co-investors, or related investment fund of an Investor and its Affiliates
and their respective directors, officers, employees, consultants and representatives, in each case in the ordinary course of business
(provided that the recipients of such confidential information are directed to abide by the confidentiality and non-disclosure obligations
contained herein), (iii) as may be reasonably determined by the Investor to be necessary in connection with the Investor’s
enforcement of its rights in connection with this Agreement or its investment in the Company, or (iv) as may otherwise be required
by law or legal, judicial or regulatory process; and provided, further, that (x) any breach of the confidentiality and use terms
herein by any Person to whom an Investor may disclose Confidential Information pursuant to clauses (i) and (ii) of the preceding
proviso shall be attributable to such Investor for purposes of determining such Investor’s compliance with this Section 4.8,
except those who have entered into a separate confidentiality or non-disclosure agreement or obligation with the Company, and (y) that
such Investor takes commercially reasonable steps (at the Company’s sole expense) to minimize the extent of any required disclosure
described in clause (iv) of the preceding proviso.
22
Section 4.9 Warrants.
In the event of (a) an Optional Repurchase in connection with an Asset Sale Trigger, on each applicable Optional Repurchase Date,
or (b) the consummation of each repurchase pursuant to an exercise of the Asset Sale Call Right (the “Optional Call Date”),
the Company agrees to issue to each Investor whose shares of Series B-4 Preferred Stock were redeemed pursuant to the Optional Repurchase
or consummation of the repurchase pursuant to such Asset Sale Call Right, in each case, a warrant to purchase Common Stock in the form
attached hereto as Exhibit F (each individually a “Warrant” and collectively the “Warrants”)
representing the right of such Investor to acquire for a term of five (5) years and six (6) months from such issuance an initial
amount of Common Stock representing the quotient of (x) the aggregate Liquidation Preference of shares of Series B-4 Preferred
Stock repurchased by the Company divided by (y) the Conversion Price as of such Optional Repurchase Date or the Optional Call Date,
as applicable, in each case, subject to adjustments as set forth in the Warrant, and with an initial exercise price equal to the Conversion
Price as of such Optional Repurchase Date or the Optional Call Date, as applicable, in each case, subject to adjustments set forth in
the Warrant.
Section 4.10 Elimination
of Series B-3 Certificate of Designations. Promptly following the Closing, the Company shall file with the Secretary of State
of the State of Delaware a Certificate of Elimination (the “Certificate of Elimination”) with respect to the Series B-3
Certificate of Designations, and take such additional action as may be necessary to cancel the Series B-3 Certificate of Designations
and otherwise terminate the authority of the Company to issue additional shares of, and retire, the Series B-3 Preferred Stock.
For the avoidance of doubt, the Series B-3 Certificate of Designations shall remain in full force and effect through and including
the Closing Date, and the holders of Series B-3 Preferred Stock shall continue to be entitled to all rights, powers, preferences,
and privileges set forth therein until the consummation of the Closing.
Section 4.11 Termination
of Prior Voting Agreement and Series B-3 Registration Rights Agreement. Each Investor to the extent a party to (i) a Voting
Agreement dated as of March 3, 2025 by and between or among the Company and such Investor or group of affiliated Investors, as applicable
(each, a “Prior Voting Agreement”) and/or (ii) the Series B-3 Registration Rights Agreement, severally and
not jointly with any other Investor, hereby agrees with the Company that effective as of the Closing, the Prior Voting Agreement and/or
the Series B-3 Registration Rights Agreement to which it is a party, including all rights and obligations thereunder, shall terminate
and be of no further force or effect in its entirety without further action required by any of the parties thereto and notwithstanding
Section 2 of the Prior Voting Agreement, Section 5.1 of the Series B-3 Registration Rights Agreement, or anything else
to the contrary in such Prior Voting Agreement or Series B-3 Registration Rights Agreement.
Section 4.12 Efforts
to Consummate. Subject to the terms and conditions herein provided, each of the parties shall use reasonable best efforts to take,
or cause to be taken, all action and to do, or cause to be done, all things reasonably necessary, proper or advisable to consummate and
make effective as promptly as practicable the transactions contemplated by this Agreement.
23
ARTICLE V.
Conditions
to closing
Section 5.1 Conditions
to the Obligations of the Company and the Investors. The respective obligations of each of the Company and the Investors to effect
the Closing shall be subject to the satisfaction (or waiver, if permissible under applicable law) on or prior to the Closing Date, as
applicable, of the following condition:
(a) the
Permitted Disposition contemplated by the Securities Purchase Agreement shall have been consummated, or shall be consummated substantially
simultaneously with the Closing, no later than the Outside Date.
ARTICLE VI.
MISCELLANEOUS
Section 6.1 Survival.
Except in the case of Fraud, the representations and warranties of the parties contained in Article II and Article III
hereof made at the Closing shall survive for twelve (12) months following the Closing. All covenants and agreements of the parties contained
herein shall survive the Closing in accordance with their terms.
Section 6.2 Counterparts.
This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement, and will become
effective when one or more counterparts have been signed by a party and delivered to the other parties. Copies of executed counterparts
of signature pages to this Agreement may be transmitted by PDF (portable document format) or facsimile and such PDFs or facsimiles
will be deemed as sufficient as if actual signature pages had been delivered.
Section 6.3 Governing
Law.
(a) This
Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to any choice
of law or conflict of law rules or provisions (whether of the State of Delaware or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of Delaware.
(b) Any
dispute relating hereto shall be heard first in the Delaware Court of Chancery, and, if applicable, in any state or federal court located
in of Delaware in which appeal from the Court of Chancery may validly be taken under the laws of the State of Delaware (each a “Chosen
Court” and collectively, the “Chosen Courts”), and the parties agree to the exclusive jurisdiction and venue
of the Chosen Courts. Such Persons further agree that any proceeding seeking to enforce any provision of, or based on any matter arising
out of or in connection with, this Agreement or the transactions contemplated hereby or by any matters related to the foregoing (the
“Applicable Matters”) shall be brought exclusively in a Chosen Court, and that any proceeding arising out of this
Agreement or any other Applicable Matter shall be deemed to have arisen from a transaction of business in the State of Delaware, and
each of the foregoing Persons hereby irrevocably consents to the jurisdiction of such Chosen Courts in any such proceeding and irrevocably
and unconditionally waives, to the fullest extent permitted by law, any objection that such Person may now or hereafter have to the laying
of the venue of any such suit, action or proceeding in any such Chosen Court or that any such proceeding brought in any such Chosen Court
has been brought in an inconvenient forum.
24
(c) Such
Persons further covenant not to bring a proceeding with respect to the Applicable Matters (or that could affect any Applicable Matter)
other than in such Chosen Court and not to challenge or enforce in another jurisdiction a judgment of such Chosen Court.
(d) Process
in any such proceeding may be served on any Person with respect to such Applicable Matters anywhere in the world, whether within or without
the jurisdiction of any such Chosen Court. Without limiting the foregoing, each such Person agrees that service of process on such party
as provided in Section 6.6 shall be deemed effective service of process on such Person.
(e) Waiver
of Jury Trial. EACH PARTY HERETO, FOR ITSELF AND ITS AFFILIATES, HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT OR OTHER PROCEEDING (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO THE ACTIONS OF THE PARTIES HERETO OR THEIR RESPECTIVE AFFILIATES PURSUANT TO THIS AGREEMENT OR IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF.
Section 6.4 Entire
Agreement; No Third Party Beneficiary; Reclassification. This Agreement, the Series B-4 Certificate of Designations, the Series B-4
Voting Agreements, and the Series B-4 Registration Rights Agreement contain the entire agreement by and among the parties with respect
to the subject matter hereof and all prior negotiations, writings and understandings relating to the subject matter of this Agreement.
This Agreement is not intended to confer upon any Person not a party hereto (or their successors and permitted assigns) any rights or
remedies hereunder. The exchange and the issuance, as applicable, of the Issued Shares constitute a reclassification within the meaning
of Rule 16b-7 promulgated under the Exchange Act.
For the avoidance of doubt,
the Series B-3 Certificate of Designations, the Prior Voting Agreement and the Series B-3 Registration Rights Agreement shall
remain in full force and effect through and including the Closing Date, and the holders of Series B-3 Preferred Stock shall continue
to be entitled to all rights, powers, preferences, and privileges set forth therein until the consummation of the Closing.
Section 6.5 Expenses.
Except as otherwise expressly provided herein or in any other transaction document, all fees, costs and expenses incurred in connection
with this Agreement and the transactions contemplated hereby, including accounting and legal fees, shall be paid by the party incurring
such fees, costs and expenses; provided, that at the Closing, the Company shall reimburse each of the Investors, or their Affiliates,
for expenses relating to the transactions contemplated hereby and other transactions between the Company and the Investors or their Affiliates.
25
Section 6.6 Notices.
All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed to have been duly
given or made as follows: (a) if sent by registered or certified mail in the United States return receipt requested, upon receipt;
(b) if sent by nationally recognized overnight air courier, one (1) Business Day after mailing; (c) if sent by e-mail
transmission, with a copy sent on the same day in the manner provided in the foregoing clause (a) or (b), when transmitted and receipt
is confirmed; and (d) if otherwise actually personally delivered, when delivered, provided, that such notices, requests,
demands and other communications are delivered to the address set forth below, or to such other address as any party shall provide by
like notice to the other parties to this Agreement:
If to the Company, to:
Comtech Telecommunications Corp.
305 N 54th Street
Chandler, Arizona 85226
E-mail: don.walther@comtech.com
Attention: Don Walther
with a copy (which shall
not constitute notice) to:
Norton Rose Fulbright US LLP
1301 Avenue of the Americas
New York, New York 10019
E-mail: steven.suzzan@nortonrosefulbright.com
Attention: Steven I. Suzzan
If to the Investors, to the
address set forth on the signature pages hereto
with a copy (which shall
not constitute notice) to:
Counsel to the Magnetar Investors:
Willkie Farr & Gallagher LLP
787 Seventh Avenue
New York, NY 10019-6099
E-mail: ehalperin@willkie.com; sewen@willkie.com
Attention: Eric Halperin; Sean Ewen
Counsel to the White Hat
Investors:
McDermott Will & Schulte LLP
919 Third Avenue
New York, NY 10022
E-mail: eklein@mcdermottlaw.com
Attention: Eleazer Klein
26
Section 6.7 Successors
and Assigns. This Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors and
permitted assigns. This Agreement may be assigned in connection with a Transfer to a Permitted Transferee pursuant to Section 4.3,
subject to the terms set forth therein. No other assignment of this Agreement or of any rights or obligations hereunder may be made by
any party hereto without the prior written consent of the other parties hereto. Any purported assignment or delegation in violation of
this Agreement shall be null and void ab initio.
Section 6.8 Headings.
The Section, Article and other headings contained in this Agreement are inserted for convenience of reference only and will not
affect the meaning or interpretation of this Agreement.
Section 6.9 Amendments
and Waivers. This Agreement may not be modified or amended except by an instrument or instruments in writing signed by each party
hereto. Any party hereto may, only by an instrument in writing, waive compliance by any other party or parties hereto with any term or
provision hereof on the part of such other party or parties hereto to be performed or complied with. No failure or delay of any party
in exercising any right or remedy hereunder shall operate as a waiver thereof, nor will any single or partial exercise of any right or
power, or any abandonment or discontinuance of steps to enforce such right or power, preclude any other or further exercise thereof or
the exercise of any other right or power. The waiver by any party hereto of a breach of any term or provision hereof shall not be construed
as a waiver of any subsequent breach. The rights and remedies of the parties hereunder are cumulative and are not exclusive of any rights
or remedies that they would otherwise have hereunder.
Section 6.10 Interpretation;
Absence of Presumption.
(a) For
the purposes hereof: (i) words in the singular shall be held to include the plural and vice versa and words of one gender shall
be held to include the other gender as the context requires; (ii) the terms “hereof,” “herein,” and “herewith”
and words of similar import shall, unless otherwise stated, be construed to refer to this Agreement as a whole (including all of the
Schedules and Exhibits) and not to any particular provision of this Agreement, and Article, Section, paragraph, Exhibit and Schedule
references are to the Articles, Sections, paragraphs, Exhibits, and Schedules to this Agreement unless otherwise specified; (iii) the
word “including” and words of similar import when used in this Agreement shall mean “including, without limitation,”
unless the context otherwise requires or unless otherwise specified; and (iv) the word “or” shall not be exclusive.
(b) With
regard to each and every term and condition of this Agreement and any and all agreements and instruments subject to the terms hereof,
the parties hereto understand and agree that the same have or has been mutually negotiated, prepared and drafted, and if at any time
the parties hereto desire or are required to interpret or construe any such term or condition or any agreement or instrument subject
hereto, no consideration will be given to the issue of which party hereto actually prepared, drafted or requested any term or condition
of this Agreement or any agreement or instrument subject hereto.
Section 6.11 Severability.
Any provision hereof that is held to be invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, shall
be ineffective only to the extent of such invalidity, illegality or unenforceability, without affecting in any way the remaining provisions
hereof, provided, however, that the parties will attempt in good faith to reform this Agreement in a manner consistent
with the intent of any such ineffective provision for the purpose of carrying out such intent.
27
Section 6.12 Specific
Performance. The parties hereto agree that irreparable damage could occur and that the a party may not have any adequate remedy at
law in the event that any of the provisions of this Agreement are not performed in accordance with their terms or were otherwise breached.
Accordingly, each party shall without the necessity of proving the inadequacy of money damages or posting a bond be entitled to an injunction
or injunctions to prevent breaches of this Agreement and to enforce specifically the terms, provisions and covenants contained therein,
this being in addition to any other remedy to which they are entitled at law or in equity.
Section 6.13 Corporate
Opportunities. Subject to the proviso set forth in the penultimate sentence of this Section 6.13, the Company, on behalf
of itself and its Subsidiaries, to the fullest extent permitted by applicable law, (a) acknowledges and affirms that the Investors
or their Affiliates, portfolio companies and Representatives, including the Series B-4 Director and the Series B-4 Observer
(the “Investor Group”): (i) have participated (directly or indirectly) and will continue to participate (directly
or indirectly) in private equity, venture capital and other direct investments in corporations, joint ventures, limited liability companies
and other entities (“Other Investments”), including Other Investments engaged in various aspects of businesses similar
to those engaged in by the Company and its Subsidiaries (and related services businesses) that may, are or will be competitive with the
Company’s or any of its Subsidiaries’ businesses or that could be suitable for the Company’s or any of its Subsidiaries’
interests, (ii) do business with any client, customer, vendor or lessor of any of the Company or its Affiliates or any other Person
with which any of the Company or its Affiliates has a business relationship, (iii) have interests in, participate with, aid and
maintain seats on the board of directors or similar governing bodies of, or serve as officers of, Other Investments, (iv) may develop
or become aware of business opportunities for Other Investments; and (v) may or will, as a result of or arising from the matters
referenced in this Section 6.13, the nature of the Investor Group’s businesses and other factors, have conflicts of
interest or potential conflicts of interest, (b) hereby renounces and disclaims any interest or expectancy in any business opportunity
(including any Other Investments or any other opportunities that may arise in connection with the circumstances described in the foregoing
clauses (a)(i) through (a)(v) (each, a “Renounced Business Opportunity”)), (c) acknowledges and affirms
that no member of Investor Group, including the Series B-4 Director and the Series B-4 Observer, shall have any obligation
to communicate or offer any Renounced Business Opportunity to the Company or any of its Subsidiaries, and any member of Investor Group
may pursue a Renounced Business Opportunity and (d) waives any claim against the Investor Group and each member thereof in connection
with the foregoing, except, in the case of the foregoing clauses (b), (c) and (d), in the case of the Series B-4 Director,
for any such opportunity expressly offered to the Series B-4 Director solely in his or her capacity as a director of the Company.
The Company agrees that in the event that the Investor Group or any member thereof acquires knowledge of a potential transaction or matter
which may constitute a corporate opportunity for both (x) the Investor Group and (y) the Company or its Subsidiaries, a member
of the Investor Group shall not have any duty to offer or communicate information regarding such corporate opportunity to the Company
or its Subsidiaries, except in the case of the Series B-4 Director, for any such opportunity expressly offered to the Series B-4
Director solely in his or her capacity as a director of the Company. To the fullest extent permitted by applicable law and except as
set forth in this Section 6.13, the Company hereby waives any claim against the Investor Group and each member thereof that
such member or the Investor Group is liable to the Company or its stockholders for breach of any fiduciary duty solely by reason of the
fact that the Investor Group or such member of the Investor Group (A) pursues or acquires any corporate opportunity for its own
account or the account of any Affiliate or other person, (B) directs, recommends, sells, assigns or otherwise transfers such corporate
opportunity to another Person or (C) does not communicate information regarding such corporate opportunity to the Company.
28
Section 6.14 Public
Announcement. Subject to each party’s disclosure obligations imposed by applicable law or the rules of any stock exchange
upon which its securities are listed, (i) each of the parties hereto will cooperate with each other in the development and distribution
of all news releases and other public information disclosures with respect to this Agreement and any of the transactions contemplated
by this Agreement, and neither the Company nor any Investor will make any such news release or public disclosure without first consulting
with the other, and, in each case, also receiving the other’s consent (which shall not be unreasonably withheld or delayed) and
each party shall reasonably coordinate with the party whose consent is required with respect to any such news release or public disclosure,
and (ii) each Investor shall not make any news releases and other public information disclosures with respect to the Securities
Purchase Agreement or the Transactions without first consulting with the Company, and, in each case, also receiving the Company’s
consent (which shall not be unreasonably withheld or delayed). Notwithstanding the foregoing, this Section 6.14 shall not
apply to any press release or other public statement made by the Company or an Investor (a) that is consistent with prior disclosure
and does not contain any information relating to the transactions that has not been previously announced or made public in accordance
with the terms of this Agreement, (b) is made to its auditors, attorneys, accountants, financial advisors, limited partners or other
Permitted Transferees or (c) is made in accordance with Section 13(d) or Section 16 of the Exchange Act and the rules promulgated
thereunder.
Section 6.15 Indemnification.
In consideration of each Investor’s execution and delivery of this Agreement, and acquiring the applicable Issued Shares and, upon
conversion of any Issued Shares, the Conversion Shares (collectively, the “Shares”), and without limiting any of the
Company’s other obligations under this Agreement, the Company shall defend, protect, indemnify and hold harmless each Investor
and all of their shareholders, partners, affiliates, members, officers, directors, employees and direct or indirect investors and any
of the foregoing Persons’ agents, managers, advisors or other representatives (including, without limitation, Magnetar Capital
LLC and White Hat Capital Partners LP) and all of their respective shareholders, partners, affiliates, members, officers, directors and
employees (collectively, the “Indemnitees” and each, an “Indemnitee”) from and against any and
all actions, causes of action, suits, claims, losses, costs, penalties, fees (including requests for plaintiffs’ attorneys’
fee), liabilities and damages, and reasonable and documented out-of-pocket expenses in connection herewith or in connection with the
transactions contemplated hereby (irrespective of whether any such Indemnitee is a party to the action for which indemnification hereunder
is sought), and including reasonable and documented attorneys’ fees and expenses (collectively, the “Indemnified Liabilities”),
actually incurred by any Indemnitee as a result of, arising out of, or relating to any cause of action, suit, claim, subpoena or other
discovery request (and any appeals therefrom) brought or made against such Indemnitee, the Company or any of its affiliates (including
any officers or directors of the Company or its affiliates) and arising out of, resulting from, or relating to the acquisition of the
Shares, to the extent permitted under applicable law, and except for any claim asserted by the Company (other than a derivative action
brought on behalf of the Company) or any claim asserted by any Indemnitee against any other Indemnitee. The Company shall not be liable
for any settlement of any pending or threatened action or proceeding effected without its prior written consent, which consent shall
not be unreasonably withheld, conditioned or delayed, and the Company shall have the right to settle any pending or threatened action
or proceeding in respect of which indemnity has been sought hereunder without the consent of any Indemnitee so long as any and all monetary
payments in connection therewith are paid by the Company and such settlement (i) includes a provision unconditionally releasing
the applicable Indemnitees from liability in respect thereof and (ii) contains no admission of liability on behalf of any Indemnitee
in respect thereof.
29
Section 6.16 Termination.
This Agreement may, by written notice given before or at the Closing, be terminated by mutual consent of the Company and the Investors.
This Agreement shall be terminated automatically with no further action required on the part of the Company or the Investors in the event
that the Securities Purchase Agreement is terminated in accordance with its terms. If this Agreement is terminated pursuant to this Section 6.16,
this Agreement and all rights and obligations of the parties under this Agreement automatically end without liability against any party
or its Affiliate, except that Sections 4.7, 6.3, 6.5, 6.10, 6.14, 6.15 and 6.16
will remain in full force and survive any termination of this Agreement.
(The next page is the signature page)
30
The parties have caused this
Agreement to be executed as of the date first written above.
COMPANY
Comtech Telecommunications Corp.
By:
/s/ Michael A. Bondi
Name:
Michael A. Bondi
Title:
Chief Financial Officer
[Signature Page to Exchange Agreement]
INVESTORS
MAGNETAR STRUCTURED CREDIT FUND, LP
By:
Magnetar Financial LLC, its general partner
By:
/s/ Lavonne Harris
Name: Lavonne Harris
Title: Chief Financial Officer – Funds
MAGNETAR LONGHORN FUND LP
By:
Magnetar Financial LLC, its investment manager
By:
/s/ Lavonne Harris
Name: Lavonne Harris
Title: Chief Financial Officer – Funds
PURPOSE ALTERNATIVE CREDIT FUND - F LLC
By:
Magnetar Financial LLC, its investment manager
By:
/s/ Lavonne Harris
Name: Lavonne Harris
Title: Chief Financial Officer – Funds
PURPOSE ALTERNATIVE CREDIT FUND - T LLC
By:
Magnetar Financial LLC, its manager
By:
/s/ Lavonne Harris
Name: Lavonne Harris
Title: Chief Financial Officer – Funds
[Signature Page to Exchange Agreement]
MAGNETAR LAKE CREDIT FUND LLC
By:
Magnetar Financial LLC, its manager
By:
/s/ Lavonne Harris
Name: Lavonne Harris
Title: Chief Financial Officer – Funds
MAGNETAR ALPHA STAR FUND LLC
By:
Magnetar Financial LLC, its manager
By:
/s/ Lavonne Harris
Name: Lavonne Harris
Title: Chief Financial Officer – Funds
MAGNETAR CAPITAL FUND II LP
By:
Magnetar Financial LLC, its investment manager
By:
/s/ Lavonne Harris
Name: Lavonne Harris
Title: Chief Financial Officer – Funds
[Signature Page to Exchange Agreement]
White Hat Strategic Partners LP
By:
White Hat SP GP LLC, its General Partner
By:
/s/ Mark Quinlan
Name:
Mark Quinlan
Title:
Managing Member
White Hat Strategic Partners II LP
By:
White Hat SP GP II LLC, its General Partner
By:
/s/ Mark Quinlan
Name:
Mark Quinlan
Title:
Managing Member
[Signature Page to Exchange Agreement]
EXHIBIT A
DEFINED TERMS
1. The
following capitalized terms have the meanings indicated:
“Affiliate”
of any Person means any Person, directly or indirectly, Controlling, Controlled by or under common Control with such Person.
“Ancillary Agreements”
means, collectively, the Escrow Agreement, the Government Contract Transition Agreement, if applicable in accordance with Section 6.12(b) of
the Securities Purchase Agreement, the Transition Services Agreement and the IP and IT Assignment Agreement, in each case, as defined
in the Securities Purchase Agreement.
“Asset Sale Call Right”
has the meaning set forth in the Series B-3 Certificate of Designations and, following the Closing, the meaning set forth in the
Series B-4 Certificate of Designations.
“Asset Sale Trigger”
has the meaning set forth in the Series B-3 Certificate of Designations and, following the Closing, the meaning set forth in the
Series B-4 Certificate of Designations.
“Board of Directors”
means the Company’s board of directors.
“Business Day”
means any day other than a Saturday, a Sunday or any day on which the Federal Reserve Bank of New York is authorized or required by law
or executive order to close or be closed.
“Bylaws”
means the Third Amended and Restated Bylaws of the Company, dated as of September 26, 2017, as the same may be further amended,
supplemented or restated.
“Certificate of Incorporation”
means the Company’s Restated Certificate of Incorporation, filed with the Secretary of State of the State of Delaware on August 18,
2006, as the same may be further amended, supplemented or restated.
“Code” means
the Internal Revenue Code of 1986, as amended.
“Control”
(including its correlative meanings “under common Control with,” “Controlled by” and “Controlling”)
means, with respect to any Person, the possession, directly or indirectly, of the power to direct or cause the direction of the management
or policies of such Person, whether through ownership of securities or partnership or other interests, by contract or otherwise.
“Conversion Price”
has the meaning set forth in the Series B-3 Certificate of Designations and, following the Closing, the meaning set forth in the
Series B-4 Certificate of Designations.
“DGCL” means
the General Corporation Law of the State of Delaware (as amended from time to time).
A-1
“Dividend”
has the meaning set forth in the Series B-3 Certificate of Designations.
“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended.
“ERISA Documents”
means all material “employment benefit plans” as defined in Section 3(3) of ERISA that are maintained or
sponsored by the Company or its Subsidiaries for the benefit of their respective current or former employees and with respect to which
the Company or its Subsidiaries have any liability.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended.
“Existing Credit Agreement”
has the meaning set forth in the Series B-3 Certificate of Designations and, following the Closing, the meaning set forth in the
Series B-4 Certificate of Designations.
“Fraud”
means actual, not constructive, common law fraud (under the laws of the State of Delaware), committed with scienter, in the making of
the representations and warranties expressly given in this Agreement.
“GAAP” means
generally accepted accounting principles as in effect in the United States.
“Government Official”
means any officer or employee of a foreign governmental authority or any department, agency, or instrumentality thereof, or of a public
international organization, or any person acting in an official capacity for or on behalf of any such foreign governmental authority
or department, agency, or instrumentality, or for or on behalf of any such public international organization, or any political party,
party official, or candidate thereof, excluding officials of the governments of the United States, the several states thereof, any local
subdivision of any of them or any agency, department or unit of any of the foregoing.
“Governmental Entity”
means any supranational, national, state, municipal, local or foreign government, any court, tribunal, arbitrator, administrative agency,
commission or other Government Official, authority or instrumentality.
“Hazardous Substance”
means any waste, substance, product or material defined or regulated as “hazardous” or “toxic”
by any applicable law, rule, regulation or order described in the definition of “Requirements of Environmental Law,” including
petroleum and any fraction thereof, and any radioactive materials and waste.
“Indemnification Agreement”
means the Indemnification Agreement between the Company and the Series B-3 Director (whom, following the Closing, shall be the Series B-4
Director) dated as of December 17, 2024.
“Investment Company
Act” mean the Investment Company Act of 1940, as amended.
A-2
“Liquidation Preference”
has the meaning set forth in the Series B-3 Certificate of Designations and, following the Closing, the meaning set forth in the
Series B-4 Certificate of Designations.
“Magnetar Investors”
means Magnetar Structured Credit Fund, LP, Magnetar Longhorn Fund LP, Purpose Alternative Credit Fund - F LLC, Purpose Alternative Credit
Fund - T LLC, Magnetar Lake Credit Fund LLC, Magnetar Alpha Star Fund LLC and Magnetar Capital Fund II LP.
“Material Adverse
Effect” means a material adverse effect upon the financial condition, assets, liabilities or results of operations of the Company
and its Subsidiaries, taken as a whole; provided, however, that any such effect resulting or arising from or relating to
any of the following matters shall not be considered when determining whether a Material Adverse Effect has occurred or would reasonably
be expected to occur: (a) any change, development, occurrence or event affecting the industry in which the Company and its Subsidiaries
operate; (b) any conditions affecting the United States general economy or the general economy in any geographic area in which the
Company or its Subsidiaries operate or developments or changes therein or the financial and securities markets and credit markets in
the United States or elsewhere in the world; (c) political conditions, including the continuation, occurrence, escalation, outbreak
or worsening of any hostilities, war, political action, acts of terrorism, sabotage or military conflicts, whether or not pursuant to
the declaration of an emergency or war; (d) any conditions resulting from the existence, occurrence, continuation or worsening of
any force majeure events, including any earthquakes, floods, hurricanes, tornadoes, tropical storms, fires or other natural or manmade
disasters, any epidemic, pandemic or other similar outbreak (including any non-human epidemic, pandemic or other similar outbreak) or
any other national, international or regional calamity; (e) changes in any law, rule, regulation or GAAP; (f) changes in the
market price or trading volume of the Common Stock or any other equity, equity-related or debt securities of the Company or its Affiliates
(it being understood that the underlying circumstances, events or reasons giving rise to any such change can be taken into account in
determining whether a Material Adverse Effect has occurred or would reasonably be expected to occur); (g) any failure to meet any
internal or public projections, forecasts, estimates or guidance for any period (it being understood that the underlying circumstances,
events or reasons giving rise to any such failure can be taken into account in determining whether a Material Adverse Effect has occurred
or would reasonably be expected to occur); (h) the announcement, execution or delivery of this Agreement or the Securities Purchase
Agreement or the consummation of the transactions contemplated by this Agreement or the Securities Purchase Agreement, including the
impact thereof on the relationships, contractual or otherwise, of the Company and its Subsidiaries with employees, suppliers, customers,
partners, vendors or any other third Person; (i) any actions taken by, or at the written request of, the Investors; and (j) any
action, suit or proceeding arising from allegations of breach of fiduciary duty or otherwise relating to this Agreement or the transactions
contemplated hereby by any stockholder of the Company; provided, that any of the matters described in clauses (a), (b) or
(c), will be taken into account for purposes of determining whether or not a Material Adverse Effect has occurred to the extent that
such matter disproportionately and adversely affects the Company and its Subsidiaries, taken as a whole, as compared with other companies
operating in the industry in which the Company and its Subsidiaries operate.
A-3
“Optional Repurchase”
has the meaning set forth in the Series B-3 Certificate of Designations and, following the Closing, the meaning set forth in the
Series B-4 Certificate of Designations.
“Optional Repurchase
Date” has the meaning set forth in the Series B-3 Certificate of Designations and, following the Closing, the meaning
set forth in the Series B-4 Certificate of Designations.
“Outside Date” means June 14, 2027; provided
that if the Outside Date (as defined in the Securities Purchase Agreement) is extended pursuant to the final proviso set forth in Section 8.1(e) of
the Securities Purchase Agreement or the final proviso set forth in Section 8.1(f) of the Securities Purchase Agreement, the
Outside Date herein shall also extend but, in any event, to no later than September 12, 2027.
“Permitted Liens”
means any liens incurred by the Investors or their respective Affiliates, restrictions arising under applicable federal and state securities
laws, or restrictions imposed by this Agreement, the Series B-4 Certificate of Designations or the Series B-4 Registration
Rights Agreement.
“Permitted Transferee”
means (i) any investment fund, investment vehicle or account Controlled by any Investor or any Affiliate thereof, or (ii) any
shareholder, limited partner, limited liability company member, other equityholder or Affiliate of any Investor or any such investment
fund, investment vehicle or account thereof as a result of any distribution.
“Person”
means an individual, corporation, partnership, limited liability company, joint venture, trust or unincorporated organization or a government
or agency or political subdivision thereof.
“Personal Data”
has the same meaning as “personal data,” “personal information,” or other analogous terms under Privacy Requirements,
including information that allows the identification of a natural person or any data that, if it were subject to unauthorized access,
would require notification under Privacy Requirements to the data subject.
“Release”
means any release, spill, emission, leaking, dumping, injection, pouring, deposit, disposal, discharge, dispersal, leaching or migration
into or through the environment (including ambient air, surface water, groundwater, land surface or subsurface strata) or within or upon
any building, structure, facility or fixture.
“Representatives”
means a Persons’ Affiliates, employees, agents, consultants, accountants, attorneys or financial advisors and direct or indirect
members or partners or Affiliates of the foregoing.
“Requirements of Environmental
Law” means all requirements imposed by any law, rule, regulation, or order of any governmental authority which relate to (a) the
environment, (b) the preservation or reclamation of natural resources, (c) the generation, management, Release or threatened
Release of any Hazardous Substance, or (d) health and safety matters.
A-4
“Restricted Securities”
means any equity security that constitutes a “restricted security” (as defined in Rule 144); provided, however,
that such equity security will cease to be a Restricted Security upon the earliest to occur of the following events:
(a) such
equity security is sold or otherwise transferred to a Person (other than the Company or an
Affiliate of the Company) pursuant to a registration statement that was effective under the
Securities Act at the time of such sale or transfer;
(b) such
equity security is sold or otherwise transferred to a Person (other than the Company or an
Affiliate of the Company) pursuant to an available exemption (including Rule 144) from
the registration and prospectus-delivery requirements of, or in a transaction not subject
to, the Securities Act and, immediately after such sale or transfer, such equity security
ceases to constitute a “restricted security” (as defined in Rule 144); and
(c) (i) such
equity security is eligible for resale, by a Person that is not an Affiliate of the Company
and that has not been an Affiliate of the Company during the immediately preceding three
(3) months, pursuant to Rule 144 without any limitations thereunder as to volume,
manner of sale, availability of current public information or notice; and (ii) the Company
has received such certificates or other documentation or evidence as the Company may reasonably
require to determine that such equity security is eligible for resale pursuant to clause
(i) and the holder or beneficial owner of such equity security is not, and has not been
during the immediately preceding three (3) months, an Affiliate of the Company.
“SEC” means
the Securities and Exchange Commission.
“SEC Documents”
means all reports, schedules, registration statements, proxy statements and other documents (including all amendments, exhibits and schedules
thereto) filed by the Company with the SEC on or after January 1, 2021.
“Securities Act”
means the Securities Act of 1933, as amended.
“Series A Preferred
Stock” means the preferred stock of the Company titled “Series A Convertible Preferred Stock,” par value $0.10
per share.
“Series A-1 Preferred
Stock” means the preferred stock of the Company titled “Series A-1 Convertible Preferred Stock,” par value
$0.10 per share.
“Series B Preferred
Stock” means the preferred stock of the Company titled “Series B Convertible Preferred Stock,” par value $0.10
per share.
“Series B-1 Preferred
Stock” means the preferred stock of the Company titled “Series B-1 Convertible Preferred Stock,” par value
$0.10 per share.
A-5
“Series B-2 Preferred
Stock” means the preferred stock of the Company titled “Series B-2 Convertible Preferred Stock,” par value
$0.10 per share.
“Series B-3 Preferred
Stock” means the preferred stock of the Company titled “Series B-3 Convertible Preferred Stock,” par value
$0.10 per share.
“Series B-3 Registration
Rights Agreement” means the Registration Rights Agreement by and among the Company and the Investors, dated as of March 3,
2025.
“Series B-4 Registration
Rights Agreement” means the Registration Rights Agreement by and among the Company and the Investors, in the form attached
to the Agreement as Exhibit D.
“Series B-4 Voting
Agreement” means the separate Voting Agreements by and between the Company and each of the Investors, in the form attached
to the Agreement as Exhibit G.
“Stock Plans”
means the Company’s 2023 Equity and Incentive Plan, as amended and/or restated from time to time, and 2001 Employee Stock Purchase
Plan, as amended and/or restated from time to time.
“Subsidiary”
means, with respect to any Person, (a) any corporation, association or other business entity (other than a partnership or limited
liability company) of which more than fifty percent (50%) of the total voting power of the capital stock entitled (without regard to
the occurrence of any contingency, but after giving effect to any voting agreement or stockholders’ agreement that effectively
transfers voting power) to vote in the election of directors, managers or trustees, as applicable, of such corporation, association or
other business entity is owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such
Person; and (b) any partnership or limited liability company where (x) more than fifty percent (50%) of the capital accounts,
distribution rights, equity and voting interests, or of the general and limited partnership interests, as applicable, of such partnership
or limited liability company are owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries
of such Person, whether in the form of membership, general, special or limited partnership or limited liability company interests or
otherwise; and (y) such Person or any one or more of the other Subsidiaries of such Person is a controlling general partner of,
or otherwise controls, such partnership or limited liability company.
“Tax” and
“Taxes” means all federal, state, local and foreign taxes (including, without limitation, income, franchise, property,
sales, withholding, payroll and employment taxes), assessments, fees or other charges imposed by any Governmental Entity, including any
interest, additions to tax or penalties applicable thereto.
“Tax Return”
means any return, report or similar filing (including the attached schedules) filed or required to be filed with respect to Taxes (and
any amendments thereto), including any information return, claim for refund or declaration of estimated Taxes.
“Transfer”
means, with respect to the applicable securities, any direct or indirect (a) sale, transfer, hypothecation, assignment, gift, bequest
or disposition of such securities by any other means, whether for value or no value and whether voluntary or involuntary (including,
without limitation, by realization upon any lien or by operation of law or by judgment, levy, attachment, garnishment, bankruptcy or
other legal or equitable proceedings, but excluding any conversion or exchange of securities in connection with a merger or other business
combination involving the Company) or (b) grant of any option, warrant or other right to purchase such securities. The term “Transferred”
shall have a correlative meaning.
A-6
“Voting Right Expiration
Date” has the meaning set forth in the Series B-3 Certificate of Designations and, following the Closing, the meaning
set forth in the Series B-4 Certificate of Designations.
“White Hat Investors”
means White Hat Strategic Partners LP and White Hat Strategic Partners II LP.
2. The
following terms are defined in the Sections of the Agreement indicated:
INDEX OF TERMS
Term
Section
2021
Exchange Shares
Recitals
2024
Exchange Shares
Recitals
Additional
Shares
Recitals
Additional
Series B Shares
Recitals
Additional
Series B-1 Shares
Recitals
Additional
October 2024 Series B-2 Shares
Recitals
Agreement
Preamble
Applicable
Matters
6.3(b)
Buyer
Recitals
Certificate
of Elimination
4.10
Chosen
Court
6.3(b)
Closing
1.2
Closing
Date
1.2
Common
Stock
2.4(a)
Company
Preamble
Confidential
Information
4.8(b)
Conversion
Shares
2.4(c)
Disclosure
Schedule
Article II
Exchange
Recitals
Exchanged
Additional Series B-1 Shares
Recitals
Exchanged
January 2024 Additional Series B-2 Shares
Recitals
Exchanged
January 2024 Additional Series B-3 Shares
Recitals
Exchanged
June 2024 Additional Series B-2 Shares
Recitals
Exchanged
January 2024 Additional Series B-3 Shares
Recitals
Exchanged
October 2024 Additional Series B-3 Shares
Recitals
Exchanged
Shares
Recitals
Exchanged
Series B Shares
Recitals
A-7
Term
Section
Exchanged
Series B-1 Shares
Recitals
Exchanged
Series B-2 Shares
Recitals
Exchanged
Series B-3 Shares
Recitals
Existing
Subscription and Exchange Agreement
Recitals
Financial
Statements
2.7
Indemnified
Liabilities
6.15
Indemnitees
6.15
Investor
Preamble
Investor
Group
6.13
Investor
Related Parties
4.7(b)
Issued
Shares
Recitals
January 2024
Additional Shares
Recitals
June 2024
Additional Shares
Recitals
March 2025
Additional Series B-3 Shares
Recitals
March 2025
Additional Shares
Recitals
October 2024
Additional Shares
Recitals
Optional
Call Date
4.9
Other
Investments
6.13
Permitted
Disposition
Recitals
Preferred
Stock
2.4(a)
Prior
Voting Agreement
4.11
Privacy
Requirements
2.19
Purchased
Series B Shares
Recitals
Purchased
Series B-1 Shares
Recitals
Purchased
Series B-2 Shares
Recitals
Purchased
Series B-3 Shares
Recitals
Renounced
Business Opportunity
6.13
Securities
Purchase Agreement
Recitals
Seller(s)
Recitals
Series B-3
Certificate of Designations
4.7(a)
Series B-4
Certificate of Designations
1.1
Series B-4
Director
4.1
Series B-4
Observer
4.1
Series B-4
Preferred Stock
Recitals
Shares
6.15
Subject
Company Shares
4.7(b)
Transactions
4.7(a)
Transfer
Notice
4.4(d)
Warrant
4.9
Warrants
4.9
A-8
Exhibit B
Investors
Investor
2024
Exchange
Shares
2021
Exchange
Shares
January 2024
Additional
Shares
June 2024
Additional
Shares
October 2024
Additional
Shares
March 2025
Additional
Shares
Issued
Shares
Magnetar Structured Credit Fund, LP
10,580.70
25,551.25
1,438.79
1,290.46
777.22
792.77
40,431.19
Magnetar Longhorn Fund LP
6,138.60
5,647.19
469.32
420.93
253.52
258.59
13,188.15
Purpose Alternative Credit Fund - F LLC
3,178.50
17,589.63
827.00
741.74
446.74
455.67
23,239.28
Purpose Alternative Credit Fund - T LLC
510.90
2,777.31
130.94
117.44
70.73
72.15
3,679.47
Magnetar Lake Credit Fund LLC
5,678.40
41,011.60
1,859.22
1,667.53
1,004.33
1,024.42
52,245.50
Magnetar Alpha Star Fund LLC
11,961.30
-
476.30
427.20
257.30
262.44
13,384.54
Magnetar Capital Fund II LP
951.60
-
37.89
33.99
20.47
20.88
1,064.83
White Hat Strategic Partners LP
-
23,144.24
127.49
799.32
481.41
23.70
24,576.16
White Hat Strategic Partners II LP
6,000.00
-
33.05
207.22
124.81
6.14
6,371.22
Total:
45,000.00
115,721.22
5,400.00
5,705.83
3,436.53
2,916.76
178,180.34
B-1
Exhibit C
Form of Series B-4 Certificate of
Designations
C-1
Form of Comtech Telecommunications Corp.
Certificate of Designations
Series B-4 Convertible Preferred Stock
[•]
TABLE OF CONTENTS
Page
SECTION 1.
DEFINITIONS
1
SECTION 2.
RULES OF CONSTRUCTION
16
SECTION 3.
THE CONVERTIBLE PREFERRED STOCK
17
(a) Designation;
Par Value
17
(b) Number
of Authorized Shares
17
(c) Form,
Dating and Denominations
17
(d) Method
of Payment; Delay When Payment Date is Not a Business Day; Withholding
18
(e) Transfer
Agent; Register
19
(f) Legends
19
(g) Transfers
and Exchanges; Transfer Taxes; Certain Transfer Restrictions
20
(h) Exchange
and Cancellation of Convertible Preferred Stock to Be Converted or Repurchased
21
(i) Status
of Retired Shares
22
(j) Replacement
Certificates
22
(k) Registered
Holders
22
(l) Cancellation
22
(m) Shares
Held by the Company or its Affiliates
22
(n) Outstanding
Shares
22
(o) Notations
and Exchanges
23
(p) CUSIP
and ISIN Numbers
23
SECTION 4.
RANKING
24
SECTION 5.
DIVIDENDS
24
(a) Generally
24
(b) Participating
Dividends
26
(c) Treatment
of Dividends Upon Repurchase or Conversion
26
SECTION 6.
RIGHTS UPON LIQUIDATION, DISSOLUTION
OR WINDING UP
27
(a) Generally
27
(b) Merger,
Consolidation and Sale of Assets Deemed Not to Be a Liquidation
27
SECTION 7.
CHANGE OF CONTROL
28
(a) Change
of Control Notice
28
(b) Withdrawal
of Change of Control Notice
28
(c) Optional
Repurchase or Conversion Right in Connection with a Change of Control
28
(d) Asset
Sale Put Right
29
(e) Asset
Sale Call Right
30
(f) Payments
Upon Change of Control
31
SECTION 8.
OPTIONAL REPURCHASE RIGHT OF
THE HOLDERS
32
(a) Optional
Repurchase Right
32
(b) Optional
Repurchase Right in Connection with a Change of Control
32
i
(c) Asset
Sale Trigger Repurchase
33
(d) Change
in Dividend Rate Following Default
33
(e) Optional
Repurchase Date
34
(f) Optional
Repurchase Price
34
(g) Procedures
to Exercise the Optional Repurchase Right
35
(h) Payment
of the Optional Repurchase Price
35
SECTION 9.
DIRECTOR NOMINATION RIGHT; VOTING
RIGHTS; BOARD OBSERVATION RIGHTS
36
(a) Right
to Nominate Director
36
(b) Voting
and Consent Rights with Respect to Specified Matters
37
(c) Right
to Vote with Holders of Common Stock on an As-Converted Basis
40
(d) Procedures
for Voting and Consents
40
(e) Board
Observation Rights
41
SECTION 10.
CONVERSION
42
(a) Generally
42
(b) Conversion
at the Option of the Holders
42
(c) Mandatory
Conversion at the Company’s Election
42
(d) Conversion
Procedures
44
(e) Settlement
upon Conversion
45
(f) Conversion
Price Adjustments
45
(g) Limitation
on Conversion Right
49
(h) Effect
of Common Stock Change Event
51
SECTION 11.
CERTAIN PROVISIONS RELATING
TO THE ISSUANCE OF COMMON STOCK
52
(a) Equitable
Adjustments to Prices
53
(b) Reservation
of Shares of Common Stock
53
(c) Status
of Shares of Common Stock
53
(d) Taxes
Upon Issuance of Common Stock
53
SECTION 12.
CALCULATIONS
53
(a) Responsibility;
Schedule of Calculations
53
(b) Calculations
Aggregated for Each Holder
54
SECTION 13.
TAX TREATMENT
54
SECTION 14.
NOTICES
54
SECTION 15.
NO OTHER RIGHTS
54
Exhibits
Exhibit A:
Form of Convertible Preferred Stock Certificate
A-1
Exhibit B: Optional Conversion
Notice
B-1
Exhibit C: Optional Repurchase
Notice
C-1
Exhibit D: Form of
Restricted Stock Legend
D-1
Exhibit E: Cash Dividend
Election Notice
E-1
ii
Certificate of Designations
Series B-4 Convertible Preferred Stock
Comtech Telecommunications Corp., a Delaware corporation
(the “Company”), does hereby certify the following:
On [•], the Board of Directors of the Company
(the “Board of Directors”) adopted the following resolutions, designating and creating, out of the Two Million (2,000,000)
authorized and One Million Eight Hundred Twenty-One Thousand Eight Hundred and Nineteen and Sixty-Six Hundredths (1,821,819.66) unissued
shares of preferred stock of the Company, One Hundred Seventy-Eight Thousand One Hundred Eighty and Thirty Four Hundredths (178,180.34)
authorized shares having a par value of $0.10 per share of a series of preferred stock of the Company titled the “Series B-4
Convertible Preferred Stock”:
NOW, THEREFORE, IT BE RESOLVED that,
pursuant to the Certificate of Incorporation, the Bylaws and applicable law, a series of preferred stock of the Company titled the “Series B-4
Convertible Preferred Stock,” and having a par value of $0.10 per share and an initial number of authorized shares equal to One
Hundred Seventy-Eight Thousand One Hundred Eighty and Thirty Four Hundredths (178,180.34), is hereby designated and created out of the
Two Million (2,000,000) authorized and One Million Eight Hundred Twenty-One Thousand Eight Hundred and Nineteen and Sixty-Six Hundredths
(1,821,819.66) unissued shares of preferred stock of the Company, which series has the rights, designations, preferences, voting powers
and other provisions set forth below:
SECTION 1. DEFINITIONS.
“Acquisition” means the acquisition
of any Person (including any division thereof) or business, or all, substantially all or a material portion of the assets of a Person,
whether through the acquisition of assets, joint venture, equity acquisition, merger, consolidation or otherwise.
“Additional Shares” shall have
the meaning set forth in the Exchange Agreement.
“Adjusted Date” means April 30,
2027, provided that in the event a CA Satisfaction occurs within ninety (90) days of April 30, 2027, the Adjusted Date shall be
the ninetieth (90th) date immediately following the occurrence of such CA Satisfaction.
“Affiliate” of any Person means
any Person, directly or indirectly, Controlling, Controlled by or under common Control with such Person.
“Asset Sale” has the meaning
set forth in Section 9(b)(i)(8).
“Asset Sale Call Purchase Price”
means the cash price payable by the Company to redeem any share of Convertible Preferred Stock upon the consummation of a repurchase
pursuant to an exercise of the Asset Sale Call Right, calculated pursuant to Section 7(e)(iv).
“Asset Sale Call Notice” means
a notice containing the information, or otherwise complying with the requirements, set forth in Section 7(e)(ii).
1
“Asset Sale Maximum Redemption Amount”
means (i) in connection with the first exercise of the Asset Sale Put Right after the Initial Asset Sale Trigger has occurred, an
amount of Convertible Preferred Stock with an aggregate Optional Repurchase Price equal to 75% of the difference of (A) the Asset
Sale Net Proceeds minus (B) the Asset Sale Trigger Amount, in each case, measured as of such exercise date and (ii) in connection
with any subsequent exercise of the Asset Sale Put Right, an amount of Convertible Preferred Stock with an aggregate Optional Repurchase
Price equal to 75% of any incremental Asset Sale Net Proceeds that have been received since the immediately preceding exercise of the
Asset Sale Put Right.
“Asset Sale Net Proceeds” means
with respect to any Asset Sale, the amount of cash proceeds received (directly or indirectly) from time to time (whether as initial consideration
or through the payment of deferred consideration) by or on behalf of the Company or any of its Subsidiaries, in connection therewith
after deducting therefrom only (i) reasonable and documented fees, commissions, and expenses related thereto and required to be
paid by the Company or any of its Subsidiaries, as applicable, in connection with such Asset Sale and (ii) taxes paid or payable
to any taxing authorities by the Company or any of its Subsidiaries, as applicable, in connection with such Asset Sale, in each case
to the extent, but only to the extent, that the amounts so deducted are, at the time of receipt of such cash, actually paid or payable
to a Person that is not an Affiliate of the Company or any of its Subsidiaries, as applicable, and are properly attributable to such
transaction.
“Asset Sale Put Purchase Price”
means the cash price payable by the Company to redeem any share of Convertible Preferred Stock upon the consummation of a repurchase
pursuant to an exercise of the Asset Sale Put Right, calculated pursuant to Section 7(d)(i).
“Asset Sale Put Right” has
the meaning set forth in Section 7(d)(i).
“Asset Sale Put Right Allocation”
has the meaning set forth in Section 7(d)(iv).
“Asset Sale Trigger” means
(i) the first day on which the Company and/or one or more of its Subsidiaries has consummated one or more Asset Sales after the
Issue Date that results in Asset Sale Net Proceeds in excess of the Asset Sale Trigger Amount as measured on such day (the “Initial
Asset Sale Trigger”); (ii) after the Initial Asset Sale Trigger has occurred, the consummation of any subsequent Asset
Sale; and (iii) after the Initial Asset Sale Trigger has occurred, the receipt by the Company or any of its Subsidiaries of additional
Asset Sale Net Proceeds in respect of any Asset Sale that has already occurred. For the avoidance of doubt, the Transactions shall not
constitute, or result in the occurrence of, an “Asset Sale Trigger”.
“Asset Sale Trigger Amount”
means, as of any measurement date, the lesser of (x) the amount that would be required (including after giving effect to any consent
by the required parties to the Existing Credit Agreement then outstanding) to pay in full all Obligations (as defined in the Existing
Credit Agreement), that are accrued and payable and terminate all Commitments (as defined in the Existing Credit Agreement) and (y) the
amount determined by the Company as necessary to be paid to the lenders party to the Existing Credit Agreement to permit the Holders
of the Convertible Preferred Stock to exercise their Asset Sale Put Right to the maximum extent and the Company to fulfill its obligations
with respect thereto, which amount, in each case, expressly excludes any amount to be paid with respect to the Optional Repurchase (as
defined in the Loan Warrants).
2
“Balance Convertible Preferred Stock”
has the meaning set forth in Section 8(b).
“beneficial owner” and whether
shares are “beneficially owned” will be determined in accordance with Rule 13d-3 under the Exchange Act.
“Board of Directors” means
the Company’s board of directors.
“Business Day” means any day
other than a Saturday, a Sunday or any day on which the Federal Reserve Bank of New York is authorized or required by law or executive
order to close or be closed.
“Bylaws” means the Third Amended
and Restated Bylaws of the Company, dated as of September 26, 2017, as the same may be further amended, supplemented or restated.
“Capital Stock” of any Person
means any and all shares of, interests in, rights to purchase, warrants or options for, participations in, or other equivalents of, in
each case however designated, the equity of such Person, but excluding any debt securities convertible into such equity. For the avoidance
of doubt, Capital Stock of the Company shall include any Dividend Junior Stock, Dividend Parity Stock, Dividend Senior Stock, Liquidation
Junior Stock, Liquidation Parity Stock and Liquidation Senior Stock.
“CA Satisfaction” has the meaning
set forth in Section 7(c).
“Cash Dividend Election” has
the meaning set forth in Section 5(a)(ii)(3).
“Cash Dividend Election Notice”
has the meaning set forth in Section 5(a)(ii)(3).
“Cash Dividend Trigger Date”
means October 31 2028.
“Certificate” means any Physical
Certificate or Electronic Certificate.
“Certificate of Designations”
means this Certificate of Designations, as amended, amended and restated or supplemented from time to time.
“Certificate of Incorporation”
means the Company’s Restated Certificate of Incorporation, filed with the Secretary of States of the State of Delaware on September 6,
2006, as the same may be further amended, supplemented or restated.
“Change of Control” means any
of the following events:
(a) a
“person” or “group” (within the meaning of Section 13(d)(3) of the Exchange Act), other than the Company,
its Wholly Owned Subsidiaries or a Holder (together with its Affiliates), has become the direct or indirect “beneficial owner”
(as defined below) of shares of the Company’s common equity representing more than fifty percent (50%) of the voting power of all
of the Company’s then-outstanding common equity;
3
(b) the
consummation of (i) any sale, lease or other transfer, in one transaction or a series of transactions, of all or substantially all
of the assets of the Company and its Subsidiaries, taken as a whole, to any Person; or (ii) any transaction or series of related
transactions in connection with which (whether by means of merger, consolidation, share exchange, combination, reclassification, recapitalization,
acquisition, liquidation or otherwise) all of the Common Stock is exchanged for, converted into, acquired for, or constitutes solely
the right to receive, other securities, cash or other property; provided, however, that any merger, consolidation, share exchange
or combination of the Company pursuant to which the Persons that directly or indirectly “beneficially owned” (as defined
below) all classes of the Company’s common equity immediately before such transaction directly or indirectly “beneficially
own,” immediately after such transaction, more than fifty percent (50%) of all classes of common equity of the surviving, continuing
or acquiring company or other transferee, as applicable, or the parent thereof, in substantially the same proportions vis-a-vis each
other as immediately before such transaction will be deemed not to be a Change of Control pursuant to this clause (b); or
(c) the
Company or its stockholders adopt a plan relating to the liquidation or dissolution of the Company.
For the purposes of this definition, (x) any
transaction or event described in both clause (a) and in clause (b)(i) or (ii) above (without
regard to the proviso in clause (b)) will be deemed to occur solely pursuant to clause (b) above (subject to such
proviso); and (y) whether a Person is a “beneficial owner” and whether shares are “beneficially owned”
will be determined in accordance with Rule 13d-3 under the Exchange Act.
“CIC Asset Sale” means a Change
of Control pursuant to clause (b)(i) of the definition of “Change of Control”.
“CIC Asset Sale Failure” has
the meaning set forth in Section 8(d).
“Close of Business” means 5:00
p.m., New York City time.
“Code” means the U.S. Internal
Revenue Code of 1986, as amended.
“Commission” means the U.S.
Securities and Exchange Commission.
“Common Stock” means the common
stock, $0.10 par value per share, of the Company, subject to Section 10(h).
“Common Stock Change Event”
has the meaning set forth in Section 10(h)(i).
“Common Stock Liquidity Conditions”
will be satisfied with respect to a Mandatory Conversion if:
(a) either
(i) each Conversion Share would be eligible to be offered, sold or otherwise transferred by the Holder of such share pursuant to
Rule 144 under the Securities Act (or any successor rule thereto), without any requirements as to volume, manner of sale, availability
of current public information (whether or not then satisfied) or notice; or (ii) the offer and sale of such Conversion Share by
such Holder are registered pursuant to an effective registration statement under the Securities Act and such registration statement is
reasonably expected by the Company to remain effective and usable by the Holder to sell such Conversion Share continuously during the
period from, and including, the date the related Mandatory Conversion Notice is sent to, and including, the thirtieth (30th) calendar
day after the date such Conversion Share is issued; provided, however, that each Holder will supply all information reasonably
requested by the Company for inclusion, and required to be included, in any registration statement or prospectus supplement related to
the resale of the Conversion Shares; provided, further, that if a Holder fails to provide such information to the Company within
fifteen (15) calendar days following any such request, then this clause (a)(ii) will automatically be deemed to be satisfied
with respect to such Holder;
4
(b) each
Conversion Share referred to in clause (a) above (i) will, when issued (or, in the case of clause (a)(ii), when
sold or otherwise transferred pursuant to the registration statement referred to in such clause) (1) be admitted for book-entry
settlement through the Depositary with an “unrestricted” CUSIP number; and (2) not be represented by any Certificate
that bears a legend referring to transfer restrictions under the Securities Act or other securities laws; and (ii) will, when issued,
be listed and admitted for trading, without suspension or material limitation on trading, on any of The New York Stock Exchange, The
NYSE American, The NASDAQ Capital Market, The NASDAQ Global Market or The NASDAQ Global Select Market (or any of their respective successors);
(c) (i) the
Company has not received any written threat or notice of delisting or suspension by the applicable exchange referred to in clause
(b)(ii) above with a reasonable prospect of delisting, after giving effect to all applicable notice and appeal periods; and
(ii) no such delisting or suspension is reasonably likely to occur or is pending based on the Company falling below the minimum
listing maintenance requirements of such exchange;
(d) the
Company has not delivered a notice pursuant to Section 7(a) with respect to an anticipated Change of Control (unless
such notice has been subsequently withdrawn pursuant to Section 7(b)); and
(e) with
respect to any Holder, the Company shall not have provided such Holder information that, at the time such Common Stock Liquidity Condition
is determined, constitutes material non-public information under the U.S. federal securities laws regarding the Company.
“Common Stock Participating Dividend”
has the meaning set forth in Section 5(b)(i).
“Company” has the meaning set
forth in the preamble.
“Control” (including its correlative
meanings “under common Control with” and “Controlled by”) means, with respect to any Person, the possession,
directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through ownership
of securities or partnership or other interests, by contract or otherwise.
“Conversion Consideration”
means, with respect to the conversion of any Convertible Preferred Stock, the type and amount of consideration payable to settle such
conversion, determined in accordance with Section 10.
5
“Conversion Date” means an
Optional Conversion Date or a Mandatory Conversion Date.
“Conversion Price” initially
means, with respect to any Convertible Preferred Stock issued on or about the Issue Date, $7.99; provided, however, that the Conversion
Price is subject to adjustment pursuant to Sections 10(f). Each reference in this Certificate of Designations to the Conversion
Price as of a particular date without setting forth a particular time on such date will be deemed to be a reference to the Conversion
Price immediately before the Close of Business on such date.
“Conversion Share” means any
share of Common Stock issued or issuable upon conversion of any Convertible Preferred Stock.
“Convertible Preferred Stock”
has the meaning set forth in Section 3(a).
“Daily VWAP” means, for any
VWAP Trading Day, the per share volume-weighted average price of the Common Stock as displayed under the heading “Bloomberg VWAP”
on Bloomberg page “CMTL UW” (or, if such page is not available, its equivalent successor page) in respect of the
period from the scheduled open of trading until the scheduled close of trading of the primary trading session on such VWAP Trading Day
(or, if such volume-weighted average price is unavailable, the market value of one (1) share of Common Stock on such VWAP Trading
Day, determined, using a volume-weighted average price method, by a nationally recognized independent investment banking firm the Board
of Directors selects). The Daily VWAP will be determined without regard to after-hours trading or any other trading outside of the regular
trading session.
“Degressive Issuance” has the
meaning set forth in Section 10(f)(i)(3).
“Depositary” means The Depository
Trust Company or its successor.
“Dividend” means any Regular
Dividend or Participating Dividend.
“Dividend Adjustment Trigger”
means the first day following the redemption of at least fifty percent (50%) of the Series B-4 Preferred Shares pursuant to the
exercise of (x) an Asset Sale Put Right, (y) an Asset Sale Call Right, and/or (z) an Optional Repurchase Right pursuant
to Section 8(b).
“Dividend Junior Stock” means
any class or series of the Company’s or its Subsidiaries’ stock whose terms do not expressly provide that such class or series
will rank senior to, or equally with, the Convertible Preferred Stock with respect to the payment of dividends (without regard to whether
or not dividends accumulate cumulatively). Dividend Junior Stock includes the Common Stock.
“Dividend Parity Stock” means
any class or series of the Company’s or its Subsidiaries’ stock (other than the Convertible Preferred Stock) whose terms
expressly provide that such class or series will rank equally with the Convertible Preferred Stock with respect to the payment of dividends
(without regard to whether or not dividends accumulate cumulatively).
6
“Dividend Payment Date” means
each Regular Dividend Payment Date with respect to a Regular Dividend and each date on which any declared Participating Dividend is scheduled
to be paid on the Convertible Preferred Stock.
“Dividend Senior Stock” means
any class or series of the Company’s or its Subsidiaries’ stock whose terms expressly provide that such class or series will
rank senior to the Convertible Preferred Stock with respect to the payment of dividends (without regard to whether or not dividends accumulate
cumulatively).
“Effective Price” has the following
meaning with respect to the issuance or sale of any shares of Common Stock or any Equity-Linked Securities:
(a) in
the case of the issuance or sale of shares of Common Stock, the value of the consideration received or receivable by (or at the direction
of) the Company or any of its Affiliates for such shares, expressed as an amount per share of Common Stock; and
(b) in
the case of the issuance or sale of any Equity-Linked Securities, an amount equal to a fraction whose:
(i) numerator
is equal to sum, without duplication, of (x) the value of the aggregate consideration received or receivable by (or at the direction
of) the Company or any of its Affiliates for the issuance or sale of such Equity-Linked Securities; and (y) the value of the minimum
aggregate additional consideration, if any, payable to purchase or otherwise acquire shares of Common Stock pursuant to such Equity-Linked
Securities; and
(ii) denominator
is equal to the maximum number of shares of Common Stock underlying such Equity-Linked Securities;
provided, however, that:
(w) for
purposes of clauses (a) and (b)(i) above, all underwriting commissions, placement agency commissions or similar
commissions paid to any broker-dealer by the Company or any of its Affiliates in connection with such issuance or sale (excluding any
other fees or expenses incurred by the Company or any of its Affiliates) will be added to the aggregate consideration referred to in
such clause;
(x) for
purposes of clause (b) above, if such minimum aggregate consideration, or such maximum number of shares of Common Stock,
is not determinable at the time such Equity-Linked Securities are issued or sold, then (1) the initial consideration payable under
such Equity-Linked Securities, or the initial number of shares of Common Stock underlying such Equity-Linked Securities, as applicable,
will be used; and (2) at each time thereafter when such amount of consideration or number of shares becomes determinable or is otherwise
adjusted (including pursuant to “anti-dilution” or similar provisions), there will be deemed to occur, for purposes of Section 10(f)(i)(3) and
without affecting any prior adjustments theretofore made to the Conversion Price, an issuance of additional Equity Linked Securities;
(y) for
purposes of clause (b) above, the surrender, extinguishment, maturity or other expiration of any such Equity-Linked Securities
will be deemed not to constitute consideration payable to purchase or otherwise acquire shares of Common Stock pursuant to such Equity-Linked
Securities; and
7
(z) the
“value” of any such consideration will be the fair value thereof, as of the date such shares or Equity-Linked Securities,
as applicable, are issued or sold, determined in good faith by the Board of Directors (or, in the case of cash denominated in U.S. dollars,
the face amount thereof).
“Electronic Certificate” means
any electronic book-entry maintained by the Transfer Agent that represents any share(s) of Convertible Preferred Stock.
“Equity-Linked Securities”
means any rights, options or warrants to purchase or otherwise acquire (whether immediately, during specified times, upon the satisfaction
of any conditions or otherwise) any shares of Common Stock.
“Exchange Act” means the U.S.
Securities Exchange Act of 1934, as amended.
“Exchange Agreement” means
the Exchange Agreement, dated as of June 14, 2026, by and among the Company and the Investors, as the same may be amended, supplemented
or restated in accordance with its terms.
“Ex-Dividend Date” means, with
respect to an issuance, dividend or distribution on the Common Stock, the first date on which shares of Common Stock trade on the applicable
exchange or in the applicable market, regular way, without the right to receive such issuance, dividend or distribution (including pursuant
to due bills or similar arrangements required by the relevant stock exchange). For the avoidance of doubt, any alternative trading convention
on the applicable exchange or market in respect of the Common Stock under a separate ticker symbol or CUSIP number will not be considered
“regular way” for this purpose.
“Exempt Issuance” means (a) the
Company’s issuance or grant of shares of Common Stock or options to purchase shares Common Stock, or other equity-based awards
(including restricted stock units), to employees (or prospective employees who have accepted an offer of employment), directors or consultants
of the Company or any of its Subsidiaries, pursuant to plans (i) in existence as of the Issue Date, or (ii) approved or amended
by a majority of the independent members of the Board of Directors, or (iii) assumed by the Company or any of its Subsidiaries in
connection with a transaction approved by a majority of the independent members of the Board of Directors; (b) the Company’s
issuance of securities upon the exercise, exchange or conversion of any securities that are exercisable or exchangeable for, or convertible
into, shares of Common Stock and were outstanding as of the Issue Date, provided that such exercise, exchange or conversion is effected
pursuant to the terms of such securities, subject to customary adjustment provisions, as in effect on the Issue Date; (c) the Company’s
issuance of securities pursuant to any equipment loan or leasing arrangement, real property leasing arrangement or debt financing from
a bank or similar financial institution approved by a majority of the disinterested members of the Board of Directors; (d) the Company’s
issuance of the Convertible Preferred Stock pursuant to the Exchange Agreement and any shares of Common Stock upon conversion of the
Convertible Preferred Stock issued thereunder; (e) the Company’s issuance of securities pursuant to any present or future
plan providing for the reinvestment of dividends or interest payable on securities of the Company and the investment of additional optional
amounts in Common Stock, whether or not the Company bears the ordinary costs of administration and operation of the plan, including brokerage
commissions; (f) the Company’s issuance of securities pursuant to the Company’s employee stock purchase plan; (g) the
Company’s issuance of rights to acquire securities pursuant to any stockholder rights plan approved by a majority of the independent
members of the Board of Directors. For purposes of this definition, “consultant” means a consultant that may participate
in an “employee benefit plan” in accordance with the definition of such term in Rule 405 under the Securities Act.
8
“Existing Credit Agreement” means the Credit Agreement,
dated as of June 17, 2024 and as amended on October 17, 2024, March 3, 2025, July 21, 2025 and June 14, 2026, by and
among the Company, the other borrowers that are parties thereto from time to time, TCW Asset Management Company LLC, as agent, Wingspire
Capital LLC, as revolving agent, and the lenders that are parties thereto from time to time, as in effect on June 14, 2026, including,
for the avoidance of doubt, any further amendment, restatement or replacement entered into in accordance with Section 9(b)(i)(11).
“Expiration Date” has the meaning
set forth in Section 10(f)(i)(2).
“Expiration Time” has the meaning
set forth in Section 10(f)(i)(2).
“Floor Price”
means, initially, $6.73, subject to adjustment in the same manner and at the same time as the Conversion Price pursuant to Section 10(f)(i)(1).
“Holder” means a person in
whose name any Convertible Preferred Stock is registered in the Register.
“Initial Asset Sale Trigger”
has the meaning set forth in the definition of “Asset Sale Trigger.”
“Initial Liquidation Preference”
means $[•]1 per share of Convertible Preferred Stock.
“Investors” shall have the
meaning set forth in the Exchange Agreement.
“Issue Date” means [•].
“January 2024 Additional Shares”
shall have the meaning set forth in the Exchange Agreement.
“June 2024 Additional Shares”
shall have the meaning set forth in the Exchange Agreement.
1
To be an amount equal to $1,238.23 per share plus Dividends (as defined in the Series B-3 Certificate of Designations) accrued and added
to the Liquidation Preference (as defined in the Series B-3 Certificate of Designations) pursuant to Section 5 of the Series B-3 Certificate
of Designations from the date hereof to the date of exchange.
9
“Last Reported Sale Price”
of the Common Stock for any Trading Day means the closing sale price per share (or, if no closing sale price is reported, the average
of the last bid price and the last ask price per share or, if more than one in either case, the average of the average last bid prices
and the average last ask prices per share) of the Common Stock on such Trading Day as reported in composite transactions for the principal
U.S. national or regional securities exchange on which the Common Stock is then listed. If the Common Stock is not listed on a U.S. national
or regional securities exchange on such Trading Day, then the Last Reported Sale Price will be the last quoted bid price per share of
Common Stock on such Trading Day in the over-the-counter market as reported by OTC Markets Group Inc. or a similar organization. If the
Common Stock is not so quoted on such Trading Day, then the Last Reported Sale Price will be the average of the midpoint of the last
bid price and the last ask price per share of Common Stock on such Trading Day from each of at least three nationally recognized independent
investment banking firms the Company selects in good faith.
“Loan Warrants” means the warrants
initially issued to certain lenders under the Existing Credit Agreement on June 17, 2024, as in existence as of the date hereof,
without giving effect to any amendments, waivers or modifications thereunder.
“Liquidation Junior Stock”
means any class or series of the Company’s or its Subsidiaries’ stock whose terms do not expressly provide that such class
or series will rank senior to, or equally with, the Convertible Preferred Stock with respect to the distribution of assets upon the Company’s
liquidation, dissolution or winding up. Liquidation Junior Stock includes the Common Stock.
“Liquidation Parity Stock”
means any class or series of the Company’s or its Subsidiaries’ stock (other than the Convertible Preferred Stock) whose
terms expressly provide that such class or series will rank equally with the Convertible Preferred Stock with respect to the distribution
of assets upon the Company’s or such Subsidiary’s liquidation, dissolution or winding up.
“Liquidation Preference” means,
with respect to the Convertible Preferred Stock, an amount initially equal to the Initial Liquidation Preference per share of Convertible
Preferred Stock; provided, however, that the Liquidation Preference is subject to adjustment pursuant to Section 5(a)(ii)(1).
“Liquidation Senior Stock”
means any class or series of the Company’s or its Subsidiaries’ stock whose terms expressly provide that such class or series
will rank senior to the Convertible Preferred Stock with respect to the distribution of assets upon the Company’s or such Subsidiary’s
liquidation, dissolution or winding up.
“Majority Holders” has the
meaning set forth in Section 9(a)(i).
“Mandatory Conversion” has
the meaning set forth in Section 10(c)(i).
“Mandatory Conversion Date”
means a Conversion Date designated with respect to any Convertible Preferred Stock pursuant to Section 10(c)(iii).
“Mandatory Conversion Notice”
has the meaning set forth in Section 10(c)(iv).
10
“Mandatory Conversion Notice Date”
means, with respect to a Mandatory Conversion, the date on which the Company sends the Mandatory Conversion Notice for such Mandatory
Conversion pursuant to Section 10(c)(iv).
“Mandatory Conversion Right”
has the meaning set forth in Section 10(c)(i).
“March 2025 Additional Shares”
shall have the meaning set forth in the Exchange Agreement.
“Market Disruption Event” means,
with respect to any date, the occurrence or existence, during the one-half hour period ending at the scheduled close of trading on such
date on the principal U.S. national or regional securities exchange or other market on which the Common Stock is listed for trading or
trades, of any material suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the
relevant exchange or otherwise) in the Common Stock or in any options contracts or futures contracts relating to the Common Stock.
“Maximum Cap” has the meaning
set forth in Section 10(g).
“October Additional Shares”
shall have the meaning set forth in the Exchange Agreement.
“Officer” means the Chief Executive
Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the Controller, the Corporate Secretary, or any Vice-President
of the Company.
“Open of Business” means 9:00
a.m., New York City time.
“Optional Conversion” means
the conversion of any Convertible Preferred Stock other than a Mandatory Conversion.
“Optional Conversion Date”
means, with respect to the Optional Conversion of any Convertible Preferred Stock, the first Business Day on which the requirements set
forth in Section 10(d)(ii) for such conversion are satisfied.
“Optional Conversion Notice”
means a notice substantially in the form of the “Optional Conversion Notice” set forth in Exhibit B.
“Optional Repurchase” means
the repurchase of any Convertible Preferred Stock by the Company pursuant to Section 8.
“Optional Repurchase Date”
means the date fixed, pursuant to Section 8(e), for the settlement of the repurchase of the Convertible Preferred Stock by
the Company pursuant to an Optional Repurchase.
“Optional Repurchase Notice”
means a notice (including a notice substantially in the form of the “Optional Repurchase Notice” set forth in Exhibit C)
containing the information, or otherwise complying with the requirements, set forth in Section 8(g)(i) and Section 8(g)(ii).
11
“Optional Repurchase Price”
means the cash price payable by the Company to repurchase any share of Convertible Preferred Stock upon its Optional Repurchase, calculated
pursuant to Section 8(f).
“Optional Repurchase Right”
has the meaning set forth in Section 8(a).
“Optional Repurchase Trigger Date”
means (x) in the event of the occurrence of an Asset Sale Trigger, the consummation of the Asset Sale causing such Asset Sale Trigger,
and (y) in all other cases, October 31, 2029.
“Ownership Limit Change” has
the meaning set forth in Section 10(g).
“Ownership Limitation” has
the meaning set forth in Section 10(g).
“Ownership Limitation Increase Effective
Date” has the meaning set forth in Section 10(g).
“Participating Dividend” has
the meaning set forth in Section 5(b)(i).
“Permitted Equity Issuance”
has the meaning set forth in Section 9(b)(i)(2).
“Permitted Transferees” means
(i) any investment fund, investment vehicle or account Controlled by any Holder or any Affiliate thereof, or (ii) any shareholder,
limited partner, limited liability company member, other equity holder or Affiliate of any Holder or any such investment fund, investment
vehicle or account thereof as a result of any distribution.
“Person” or “person”
means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated
organization or government or other agency or political subdivision thereof. Any division or series of a limited liability company, limited
partnership or trust will constitute a separate “person” under this Certificate of Designations.
“Physical Certificate” means
any certificate (other than an Electronic Certificate) representing any share(s) of Convertible Preferred Stock, which certificate
is substantially in the form set forth in Exhibit A, registered in the name of the Holder of such share(s) and duly
executed by the Company and countersigned by the Transfer Agent.
“Preferred Stock Director”
has the meaning set forth in Section 9(a)(i).
“Preferred Stock Director Nomination
Right Condition” has the meaning set forth in Section 9(a)(i).
“Preferred Stock Nominee” has
the meaning set forth in Section 9(a)(i).
“Public Announcement” means
the disclosure in a press release reported by the Dow Jones News Service, Associated Press or comparable national news service or in
a document publicly filed by the Company with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of
the Exchange Act.
12
“Qualified Offering” means
an offering of any shares of Capital Stock of the Company or any of its Subsidiaries, or any Equity-Linked Security or other equity interest
convertible into any Capital Stock of the Company or any of its Subsidiaries, in each case for the primary purpose of raising equity
capital, whether pursuant to an effective registration statement under the Securities Act (other than a registration statement on Form S-4
or Form S-8 or any similar or successor form) or an exemption from the registration requirement under the Securities Act.
“Record Date” means, with respect
to any dividend or distribution on, or issuance to holders of, Convertible Preferred Stock or Common Stock, the date fixed (whether by
law, contract or the Board of Directors or otherwise) to determine the Holders or the holders of Common Stock, as applicable, that are
entitled to such dividend, distribution or issuance.
“Reference Property” has the
meaning set forth in Section 10(h)(i).
“Reference Property Unit” has
the meaning set forth in Section 10(h)(i).
“Register” has the meaning
set forth in Section 3(e).
“Regular Dividend Payment Date”
means, with respect to any share of Convertible Preferred Stock, each March 31st, June 30th, September 30th and December 31st
of each year, beginning on [•] (or beginning on such other date specified in the Certificate representing such share).
“Regular Dividend Period” means
each period from, and including, a Regular Dividend Payment Date (or, in the case of the first Regular Dividend Period, from, and including,
the Issue Date) to, but excluding, the next Regular Dividend Payment Date.
“Regular Dividend Rate” means,
in each case, subject to increase pursuant to Section 8(d):
(i) prior to a Dividend Adjustment Trigger or a CIC Asset Sale, (x) 9.00%
per annum, or (y) solely in respect of a cash Dividend that is paid in accordance with
(1) the proviso set forth in Section 5(a)(ii)(1), (2) Section 5(a)(ii)(3) or
(3) Section 5(a)(ii)(4), 7.75% per annum;
(ii) from and after the consummation of a CIC Asset Sale that does not
result in a Dividend Adjustment Trigger, the sum of (x) the applicable Regular Dividend
Rate determined pursuant to clause (i) and (y) 2.00% per annum; and
(iii) from and after the occurrence of a Dividend Adjustment Trigger,
(x) 6.50% per annum or (y) from and after the exercise of any Optional Repurchase
Right with respect to Balance Convertible Preferred Stock pursuant to Section 8(b),
8.50% per annum.
“Regular Dividend Record Date”
has the following meaning: (a) March 15th in the case of a Regular Dividend Payment Date occurring on March 31st; (b) June 15th
in the case of a Regular Dividend Payment Date occurring on June 30th; (c) September 15th in the case of a Regular Dividend
Payment Date occurring on September 30th; and (d) December 15th in the case of a Regular Dividend Payment Date occurring
on December 31st.
13
“Regular Dividends” has the
meaning set forth in Section 5(a)(i).
“Related Party Transaction”
means any transaction for which disclosure is required pursuant to 17 CFR § 229.404.
“Restricted Stock Legend” means
a legend substantially in the form set forth in Exhibit D.
“Rule 144” means Rule 144
under the Securities Act (or any successor rule thereto), as the same may be amended from time to time.
“Rule 5635(b)” has the
meaning set forth in Section 10(g).
“Securities Act” means the
U.S. Securities Act of 1933, as amended.
“Security” means any Convertible
Preferred Stock or Conversion Share.
“Standard Settlement Period”
means the standard settlement period, expressed in a number of Trading Days, on the principal securities exchange or securities market
on which the Common Stock is then traded as in effect on the date of delivery of the applicable Conversion Notice.
“Subsidiary” means, with respect
to any Person, (a) any corporation, association or other business entity (other than a partnership or limited liability company)
of which more than fifty percent (50%) of the total voting power of the Capital Stock entitled (without regard to the occurrence of any
contingency, but after giving effect to any voting agreement or stockholders’ agreement that effectively transfers voting power)
to vote in the election of directors, managers or trustees, as applicable, of such corporation, association or other business entity
is owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person; and (b) any
partnership or limited liability company where (x) more than fifty percent (50%) of the capital accounts, distribution rights, equity
and voting interests, or of the general and limited partnership interests, as applicable, of such partnership or limited liability company
are owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person, whether in the
form of membership, general, special or limited partnership or limited liability company interests or otherwise; and (y) such Person
or any one or more of the other Subsidiaries of such Person is a controlling general partner of, or otherwise controls, such partnership
or limited liability company.
“Successive Conversion Period”
means the period beginning upon receipt by the Holders of a notice of a Change of Control and ending on the first year anniversary of
the consummation of the Change of Control.
“Successor Person” has the
meaning set forth in Section 10(h)(iii).
14
“Tender/Exchange Offer Valuation Period”
has the meaning set forth in Section 10(f)(i)(2).
“Trading Day” means any day
on which (a) trading in the Common Stock generally occurs on the principal U.S. national or regional securities exchange on which
the Common Stock is then listed or, if the Common Stock is not then listed on a U.S. national or regional securities exchange, on the
principal other market on which the Common Stock is then traded; and (b) there is no Market Disruption Event. If the Common Stock
is not so listed or traded, then “Trading Day” means a Business Day.
“Transactions” has the meaning
set forth in the Exchange Agreement.
“Transfer Agent” means the
Company or its successor.
“Transfer-Restricted Security”
means any Security that constitutes a “restricted security” (as defined in Rule 144); provided, however, that
such Security will cease to be a Transfer-Restricted Security upon the earliest to occur of the following events:
(a) such
Security is sold or otherwise transferred to a Person (other than the Company or an Affiliate of the Company) pursuant to a registration
statement that was effective under the Securities Act at the time of such sale or transfer;
(b) such
Security is sold or otherwise transferred to a Person (other than the Company or an Affiliate of the Company) pursuant to an available
exemption (including Rule 144) from the registration and prospectus-delivery requirements of, or in a transaction not subject to,
the Securities Act and, immediately after such sale or transfer, such Security ceases to constitute a “restricted security”
(as defined in Rule 144); and
(c) (i) such
Security is eligible for resale, by a Person that is not an Affiliate of the Company and that has not been an Affiliate of the Company
during the immediately preceding three (3) months, pursuant to Rule 144 without any limitations thereunder as to volume, manner
of sale, availability of current public information or notice; and (ii) the Company has received such certificates or other documentation
or evidence as the Company may reasonably require to determine that such Security is eligible for resale pursuant to clause (i) and
the Holder, holder or beneficial owner of such Security is not, and has not been during the immediately preceding three (3) months,
an Affiliate of the Company.
“Treasury Regulations” means
the Treasury regulations promulgated under the Code, as amended.
“Voting Right Expiration Date”
means the date that is the earlier of (a) October 31, 2028, and (b) the date on which the Investors (or their Permitted
Transferees) no longer own beneficially and of record, in the aggregate, an amount of Convertible Preferred Stock with an aggregate Liquidation
Preference equal to at least $25,000,000 (including, for such purpose, the Liquidation Preference of any shares of Convertible Preferred
Stock previously held by the Investors (or their Permitted Transferees) that were subsequently converted into Conversion Shares pursuant
to a Mandatory Conversion or an Optional Conversion, for so long as the Investors (or their Permitted Transferees) continue to own beneficially
and of record such underlying Conversion Shares).
15
“VWAP Market Disruption Event”
means, with respect to any date, (a) the failure by the principal U.S. national or regional securities exchange on which the Common
Stock is then listed, or, if the Common Stock is not then listed on a U.S. national or regional securities exchange, the principal other
market on which the Common Stock is then traded, to open for trading during its regular trading session on such date; or (b) the
occurrence or existence, for more than one half hour period in the aggregate, of any suspension or limitation imposed on trading (by
reason of movements in price exceeding limits permitted by the relevant exchange or otherwise) in the Common Stock or in any options
contracts or futures contracts relating to the Common Stock, and such suspension or limitation occurs or exists at any time before 1:00
p.m., New York City time, on such date.
“VWAP Trading Day” means a
day on which (a) there is no VWAP Market Disruption Event; and (b) trading in the Common Stock generally occurs on the principal
U.S. national or regional securities exchange on which the Common Stock is then listed or, if the Common Stock is not then listed on
a U.S. national or regional securities exchange, on the principal other market on which the Common Stock is then traded. If the Common
Stock is not so listed or traded, then “VWAP Trading Day” means a Business Day.
“Warrant” shall have the meaning
set forth in the Exchange Agreement.
“Wholly Owned Subsidiary” of
a Person means any Subsidiary of such Person all of the outstanding Capital Stock or other ownership interests of which (other than directors’
qualifying shares) are owned by such Person or one or more Wholly Owned Subsidiaries of such Person.
“2021 Exchange Shares” shall
have the meaning set forth in the Exchange Agreement.
“2024 Exchange Shares” shall
have the meaning set forth in the Exchange Agreement.
SECTION 2. RULES
OF CONSTRUCTION. For purposes of this Certificate of Designations:
(a) “or”
is not exclusive;
(b) “including”
means “including without limitation”;
(c) “will”
expresses a command;
(d) the
“average” of a set of numerical values refers to the arithmetic average of such numerical values;
(e) words
in the singular include the plural and in the plural include the singular, unless the context requires otherwise;
16
(f) “herein,”
“hereof’ and other words of similar import refer to this Certificate of Designations as a whole and not to any particular
Section or other subdivision of this Certificate of Designations, unless the context requires otherwise;
(g) references
to currency mean the lawful currency of the United States of America, unless the context requires otherwise;
(h) the
exhibits, schedules and other attachments to this Certificate of Designations are deemed to form part of this Certificate of Designations;
and
(i) with
respect to any defined term defined by reference to the Existing Credit Agreement, in the event of any amendment, restatement or replacement
of the Existing Credit Agreement approved in accordance with Section 9(b)(i)(11), such defined term shall be deemed to be
replaced by any substantially equivalent defined term in such amendment, restatement or replacement.
SECTION 3. THE
CONVERTIBLE PREFERRED STOCK.
(a) Designation;
Par Value. A series of stock of the Company titled the “Series B-4 Convertible Preferred Stock” (the “Convertible
Preferred Stock”) is hereby designated and created out of the Two Million (2,000,000) authorized and One Million Eight Hundred
Twenty-One Thousand Eight Hundred and Nineteen and Sixty-Six Hundredths (1,821,819.66) unissued shares of preferred stock of the Company.
The par value of the Convertible Preferred Stock is $0.10 per share.
(b) Number
of Authorized Shares. The total authorized number of shares of Convertible Preferred Stock is One Hundred Seventy-Eight Thousand
One Hundred Eighty and Thirty Four Hundredths (178,180.34).
(c) Form,
Dating and Denominations.
(i) Form and
Date of Certificates Representing Convertible Preferred Stock. Each Certificate representing any Convertible Preferred Stock will
bear the legends required by Section 3(f) and may bear notations, legends or endorsements required by law, stock exchange
rule or usage or the Depositary.
(ii) Certificates.
(1) Generally.
The Convertible Preferred Stock will be originally issued initially in the form of one or more Electronic Certificates. Electronic
Certificates may be exchanged for Physical Certificates, and Physical Certificates may be exchanged for Electronic Certificates upon
request by the Holder thereof pursuant to customary procedures.
(2) Electronic
Certificates; Interpretation. For purposes of this Certificate of Designations, (A) each Electronic Certificate will be deemed
to include the text of the stock certificate set forth in Exhibit A; (B) any legend or other notation that is required
to be included on a Certificate will be deemed to be included in any Electronic Certificate notwithstanding that such Electronic Certificate
may be in a form that does not permit affixing legends thereto; (C) any reference in this Certificate of Designations to the “delivery”
of any Electronic Certificate will be deemed to be satisfied upon the registration of the electronic book-entry representing such Electronic
Certificate in the name of the applicable Holder; and (D) upon satisfaction of any applicable requirements of the Delaware General
Corporation Law, the Certificate of Incorporation and the Bylaws of the Company, and any related requirements of the Transfer Agent,
in each case for the issuance of Convertible Preferred Stock in the form of one or more Electronic Certificates, such Electronic Certificates
will be deemed to be executed by the Company and countersigned by the Transfer Agent.
17
(iii) No
Bearer Certificates; Denominations. The Convertible Preferred Stock will be issued only in registered form and only in whole numbers
of shares.
(iv) Registration
Numbers. Each Certificate representing any Convertible Preferred Stock will bear a unique registration number that is not affixed
to any other Certificate representing any other outstanding share of Convertible Preferred Stock.
(d) Method
of Payment; Delay When Payment Date is Not a Business Day; Withholding.
(i) Method
of Payment. The Company will pay all cash amounts due on any Convertible Preferred Stock by wire transfer to an account of any Holder
within the United States, so long as such Holder has delivered wire instructions to the Company no later than the Close of Business on
the following date: (x) with respect to the payment of any declared cash Dividend due on a Dividend Payment Date for the Convertible
Preferred Stock, the related Record Date; and (y) with respect to any other payment, the date that is fifteen (15) calendar days
immediately before the date such payment is due; provided, however, that if such Holder has failed to timely deliver such wire
instructions, then the Company will pay all such cash amounts by check issued in the name of the Holder thereof.
(ii) Delay
of Payment when Payment Date is Not a Business Day. If the due date for a payment on any Convertible Preferred Stock as provided
in this Certificate of Designations is not a Business Day, then, notwithstanding anything to the contrary in this Certificate of Designations,
such payment may be made on the immediately following Business Day and no interest, dividend or other amount will accrue or accumulate
on such payment as a result of the related delay. Solely for purposes of the immediately preceding sentence, a day on which the applicable
place of payment is authorized or required by law or executive order to close or be closed will be deemed not to be a “Business
Day.”
(iii) Withholding.
The Company or any paying agent of the Company shall be entitled to deduct and withhold on all payments (or deemed payments) and
distributions (or deemed distributions) on the Convertible Preferred Stock to the extent required by applicable law. To the extent that
any amounts are so deducted or withheld, such deducted or withheld amounts shall be treated for all purposes of this Certificate of Designations
as having been paid to the Person in respect of which such deduction or withholding was made. In the event the Company previously remitted
any amounts to a governmental authority with respect to any amounts required to be deducted or withheld in respect of any payment or
distribution (or deemed distribution) with respect to a share of Convertible Preferred Stock, the Company shall be entitled to offset
any such amounts against any amounts otherwise payable in respect of such share of Convertible Preferred Stock.
18
(e) Transfer
Agent; Register. The Company or any of its Subsidiaries may act as the Transfer Agent. The Company will, or will retain another Person
(who may be the Transfer Agent) to act as registrar who will, keep a record (the “Register”) of the names and addresses
of the Holders, the number of shares of Convertible Preferred Stock held by each Holder, including denoting in book-entry format which
shares of Convertible Preferred Stock constitute 2021 Exchange Shares, 2024 Exchange Shares, January 2024 Additional Shares, June 2024
Additional Shares, October 2024 Additional Shares, or March 2025 Additional Shares and the transfer, exchange, repurchase and
conversion of the Convertible Preferred Stock. Absent manifest error, the entries in the Register will be conclusive and the Company
and the Transfer Agent may treat each Person whose name is recorded as a Holder in the Register as a Holder for all purposes. The Register
will be in written form or in any form capable of being converted into written form reasonably promptly. The Company will promptly provide
a copy of the Register to any Holder upon its request.
(f) Legends.
(i) Restricted
Stock Legend.
(1) Each
Certificate representing any share of Convertible Preferred Stock that is a Transfer-Restricted Security will bear the Restricted Stock
Legend.
(2) If
any share of Convertible Preferred Stock is issued in exchange for, in substitution of, or to effect a partial conversion of, any other
share(s) of Convertible Preferred Stock (such other share(s) being referred to as the “old share(s)” for purposes
of this Section 3(f)(i)(2)), including pursuant to Section 3(h) or 3(j), then the Certificate representing
such share will bear the Restricted Stock Legend if the Certificate representing such old share(s) bore the Restricted Stock Legend
at the time of such exchange or substitution, or on the related Conversion Date with respect to such conversion, as applicable; provided,
however, that the Certificate representing such share need not bear the Restricted Stock Legend if such share does not constitute
a Transfer-Restricted Security immediately after such exchange or substitution, or as of such Conversion Date, as applicable.
(ii) Other
Legends. The Certificate representing any Convertible Preferred Stock may bear any other legend or text, not inconsistent with this
Certificate of Designations, as may be required by applicable law or by any securities exchange or automated quotation system on which
such Convertible Preferred Stock is traded or quoted or as may be otherwise reasonably determined by the Company to be appropriate.
(iii) Acknowledgement
and Agreement by the Holders. A Holder’s acceptance of any Convertible Preferred Stock represented by a Certificate bearing
any legend required by this Section 3(f) will constitute such Holder’s acknowledgement of, and agreement to comply
with, the restrictions set forth in such legend.
19
(iv) Legends
on Conversion Shares.
(1) Each
Conversion Share will bear a legend substantially to the same effect as the Restricted Stock Legend if the Convertible Preferred Stock
upon the conversion of which such Conversion Share was issued was (or would have been had it not been converted) a Transfer-Restricted
Security at the time such Conversion Share was issued; provided, however, that such Conversion Share need not bear such a legend
if the Company determines, in its reasonable discretion, that such Conversion Share need not bear such a legend.
(2) Notwithstanding
anything to the contrary in Section 3(f)(iv)(1), a Conversion Share need not bear a legend pursuant to Section 3(f)(iv)(1) if
such Conversion Share is issued in an uncertificated form that does not permit affixing legends thereto, provided the Company
takes measures (including the assignment thereto of a “restricted” CUSIP number) that it reasonably deems appropriate to
enforce the transfer restrictions referred to in such legend.
(g) Transfers
and Exchanges; Transfer Taxes; Certain Transfer Restrictions.
(i) Provisions
Applicable to All Transfers and Exchanges.
(1) Generally.
Subject to this Section 3(g) and Section 4.3 of the Exchange Agreement, Convertible Preferred Stock represented
by any Certificate may be transferred or exchanged from time to time, and the Company will direct that each such transfer or exchange
to be recorded in the Register.
(2) No
Services Charge; Transfer Taxes. The Company will not impose any service charge on any Holder for any transfer, exchange or conversion
of any Convertible Preferred Stock, but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental
charge that may be imposed in connection with any transfer or exchange of Convertible Preferred Stock, other than exchanges pursuant
to Section 3(h) or Section 3(o) not involving any transfer.
(3) [Reserved].
(4) Legends.
Each Certificate representing any share of Convertible Preferred Stock that is issued upon transfer of, or in exchange for, another
share of Convertible Preferred Stock will bear each legend, if any, required by Section 3(f).
(5) Settlement
of Transfers and Exchanges. Upon satisfaction of the requirements of this Certificate of Designations to effect a transfer or exchange
of any Convertible Preferred Stock as well as the delivery of all documentation reasonably required by the Transfer Agent or the Company
in order to effect any transfer or exchange, the Company will direct such transfer or exchange to be effected as soon as reasonably practicable
but in no event later than the second (2nd) Business Day after the date of such satisfaction.
20
(ii) Transfers
of Shares Subject to Repurchase or Conversion. Notwithstanding anything to the contrary in this Certificate of Designations, the
Company will not be required to register the transfer of or exchange any share of Convertible Preferred Stock:
(1) that
has been surrendered for conversion; or
(2) as
to which an Optional Repurchase Notice has been duly delivered pursuant to Section 8(g), except to the extent that the Company
fails to pay the related Optional Repurchase Price when due.
(h) Exchange
and Cancellation of Convertible Preferred Stock to Be Converted or Repurchased.
(i) Partial
Conversions or Repurchases of Convertible Preferred Stock. If only a portion of a Holder’s Convertible Preferred Stock represented
by a Certificate (such Certificate being referred to as the “old Certificate” for purposes of this Section 3(h)(i))
is to be converted pursuant to Section 10 or repurchased pursuant to an Optional Repurchase, then, as soon as reasonably
practicable after such Certificate is surrendered for such conversion or repurchase, as applicable, the Company will direct such Certificate
to be exchanged for (1) one or more Certificates that (x) each represent a whole number of shares of Convertible Preferred
Stock and, in the aggregate, represent a total number of shares of Convertible Preferred Stock equal to the number of shares of Convertible
Preferred Stock represented by such old Certificate that are not to be so converted or repurchased, as applicable, (y) are registered
in the name of such Holder; and (z) bear each legend, if any, required by Section 3(f), and deliver such Certificate(s) to
such Holder; and (2) a Certificate representing a whole number of shares of Convertible Preferred Stock equal to the number of shares
of Convertible Preferred Stock represented by such old Certificate that are to be so converted or repurchased, as applicable, which Certificate
will be converted or repurchased, as applicable, pursuant to the terms of this Certificate of Designations; provided, however, that
the Certificate referred to in this clause (2) need not be issued at any time after which such shares subject to such conversion
or repurchase, as applicable, are deemed to cease to be outstanding pursuant to Section 3(n).
(ii) Cancellation
of Convertible Preferred Stock that Is Converted or Repurchased. If a Holder’s Convertible Preferred Stock represented by a
Certificate (or any portion thereof that has not theretofore been exchanged pursuant to Section 3(h)(i)) (such Certificate
being referred to as the “old Certificate” for purposes of this Section 3(h)(ii)) is to be converted pursuant
to Section 10 or repurchased pursuant to an Optional Repurchase, then, promptly after the later of the time such Convertible
Preferred Stock is deemed to cease to be outstanding pursuant to Section 3(n) and the time such Certificate is surrendered
for such conversion or repurchase, as applicable, (A) such Certificate will be cancelled pursuant to Section 3(l); and
(B) in the case of a partial conversion or repurchase, the Company will issue, execute and deliver to such Holder, and cause the
Transfer Agent to countersign one or more Certificates that (x) each represent a whole number of shares of Convertible Preferred
Stock and, in the aggregate, represent a total number of shares of Convertible Preferred Stock equal to the number of shares of Convertible
Preferred Stock represented by such old Certificate that are not to be so converted or repurchased, as applicable; (y) are registered
in the name of such Holder; and (z) bear each legend, if any, required by Section 3(f).
21
(i) Status
of Retired Shares. Upon any share of Convertible Preferred Stock ceasing to be outstanding, such share will be deemed to be retired
and to resume the status of an authorized and unissued share of preferred stock of the Company, and such share cannot thereafter be reissued
as Convertible Preferred Stock.
(j) Replacement
Certificates. If a Holder of any Convertible Preferred Stock claims that the Certificate(s) representing such Convertible Preferred
Stock have been mutilated, lost, destroyed or wrongfully taken, then the Company will issue, execute and deliver, and cause the Transfer
Agent to countersign, in each case in accordance with Section 3(c), a replacement Certificate representing such Convertible
Preferred Stock upon surrender to the Company or the Transfer Agent of such mutilated Certificate, or upon delivery to the Company or
the Transfer Agent of evidence of such loss, destruction or wrongful taking reasonably satisfactory to the Transfer Agent and the Company.
In the case of a lost, destroyed or wrongfully taken Certificate representing any Convertible Preferred Stock, the Company and the Transfer
Agent may require the Holder thereof to provide such security or indemnity that is reasonably satisfactory to the Company and the Transfer
Agent to protect the Company and the Transfer Agent from any loss that any of them may suffer if such Certificate is replaced. Every
replacement Convertible Preferred Stock issued pursuant to this Section 3(j) will, upon such replacement, be deemed
to be outstanding Convertible Preferred Stock, entitled to all of the benefits of this Certificate of Designations equally and ratably
with all other Convertible Preferred Stock then outstanding.
(k) Registered
Holders. Only the Holder of any Convertible Preferred Stock will have rights under this Certificate of Designations as the owner
of such Convertible Preferred Stock.
(l) Cancellation.
The Company may at any time deliver Convertible Preferred Stock that any Holder has surrendered to the Company to the Transfer Agent
for cancellation. The Company will direct the Transfer Agent to promptly cancel all shares of Convertible Preferred Stock so surrendered
to it in accordance with its customary procedures.
(m) Shares
Held by the Company or its Affiliates. Without limiting the generality of Sections 3(o) and 3(n), in determining
whether the Holders of the required number of outstanding shares of Convertible Preferred Stock have concurred in any direction, waiver
or consent, shares of Convertible Preferred Stock owned by the Company or any of its Subsidiaries will be deemed not to be outstanding.
(n) Outstanding
Shares.
(i) Generally.
The shares of Convertible Preferred Stock that are outstanding at any time will be deemed to be those shares of Convertible Preferred
Stock that, at such time, have been duly executed by the Company and countersigned by the Transfer Agent, excluding those shares of Convertible
Preferred Stock that have theretofore been (1) cancelled by the Transfer Agent or delivered to the Transfer Agent for cancellation
in accordance with Section 3(l); (2) paid in full upon their conversion or repurchase in accordance with this Certificate
of Designations; or (3) deemed to cease to be outstanding to the extent provided in, and subject to, clause (ii), (iii),
or (iv) of this Section 3(n).
22
(ii) Replaced
Shares. If any Certificate representing any share of Convertible Preferred Stock is replaced pursuant to Section 3(j),
then such share will cease to be outstanding at the time of such replacement, unless the Transfer Agent and the Company receive proof
reasonably satisfactory to them that such share is held by a “bona fide purchaser” under applicable law.
(iii) Shares
to Be Converted. If any Convertible Preferred Stock is to be converted, then, at the Close of Business on the Conversion Date for
such conversion (unless there occurs a default in the delivery of the Conversion Consideration due pursuant to Section 10 upon
such conversion): (1) such Convertible Preferred Stock will be deemed to cease to be outstanding; (2) Regular Dividends will
cease to accumulate on such Convertible Preferred Stock from and after such Conversion Date (without limiting the Company’s obligations
pursuant to Section 5(c)); and (3) the rights of the Holders of such Convertible Preferred Stock, as such, will terminate
with respect to such Convertible Preferred Stock, other than the right to receive such Conversion Consideration as provided in Section 10
(and, if applicable, declared Dividends as provided in Section 5(c)).
(iv) Shares
to Be Repurchased Pursuant to an Optional Repurchase. If, on an Optional Repurchase Date, the Company holds consideration in kind
and amount that is sufficient to pay the aggregate Optional Repurchase Price due on such date, then (unless there occurs a default in
the payment of the Optional Repurchase Price) (1) the Convertible Preferred Stock to be repurchased on such date will be deemed,
as of such date, to cease to be outstanding (without limiting the Company’s obligations pursuant to Section 5(c));
and (2) the rights of the Holders of such Convertible Preferred Stock, as such, will terminate with respect to such Convertible
Preferred Stock, other than the right to receive the Optional Repurchase Price as provided in Section 8 (and, if applicable,
declared Dividends as provided in Section 5(c)).
(o) Notations
and Exchanges. Without limiting any rights of Holders pursuant to Section 9, if any amendment, supplement or waiver to
the Certificate of Incorporation or this Certificate of Designations changes the terms of any Convertible Preferred Stock, then the Company
may, in its discretion, require the Holder of the Certificate representing such Convertible Preferred Stock to deliver such Certificate
to the Transfer Agent so that the Transfer Agent may place an appropriate notation prepared by the Company on such Certificate and return
such Certificate to such Holder. Alternatively, at its discretion, the Company may, in exchange for such Convertible Preferred Stock,
issue, execute and deliver, and cause the Transfer Agent to countersign, in each case in accordance with Section 3(c), a
new Certificate representing such Convertible Preferred Stock that reflects the changed terms. The failure to make any appropriate notation
or issue a new Certificate representing any Convertible Preferred Stock pursuant to this Section 3(p) will not impair
or affect the validity of such amendment, supplement or waiver.
(p) CUSIP
and ISIN Numbers. The Company may use one or more CUSIP or ISIN numbers to identify any of the Convertible Preferred Stock, and,
if so, the Company will use such CUSIP or ISIN number(s) in notices to Holders; provided, however, that the effectiveness
of any such notice will not be affected by any defect in, or omission of, any such CUSIP or ISIN number.
23
SECTION 4. RANKING.
The Convertible Preferred Stock will rank (a) senior to (i) Dividend Junior Stock with respect to the payment of dividends;
and (ii) Liquidation Junior Stock with respect to the distribution of assets upon the Company’s liquidation, dissolution or
winding up; (b) equally with (i) Dividend Parity Stock with respect to the payment of dividends; and (ii) Liquidation
Parity Stock with respect to the distribution of assets upon the Company’s liquidation, dissolution or winding up; and (c) junior
to (i) Dividend Senior Stock with respect to the payment of dividends; and (ii) Liquidation Senior Stock with respect to the
distribution of assets upon the Company’s liquidation, dissolution or winding up.
SECTION 5. DIVIDENDS.
(a) Generally.
(i) Regular
Dividends.
(1) Accumulation
and Payment of Regular Dividends. The Convertible Preferred Stock will accumulate cumulative dividends at a rate per annum equal
to the Regular Dividend Rate on the Liquidation Preference thereof (calculated in accordance with Section 5(a)(i)(2)), regardless
of whether or not declared or whether or not funds are legally available for their payment (such dividends that accumulate on the Convertible
Preferred Stock pursuant to this sentence, “Regular Dividends”). Subject to the other provisions of this Section 5
(including, for the avoidance of doubt, Section 5(a)(ii)(1), Section 5(a)(ii)(3) and Section 5(a)(ii)(4)),
such Regular Dividends will be payable when, as and if declared by the Board of Directors, quarterly in arrears on each Regular Dividend
Payment Date, to the Holders as of the Close of Business on the immediately preceding Regular Dividend Record Date. Dividends shall be
paid in cash only to the extent funds are legally available. Regular Dividends on the Convertible Preferred Stock will accumulate on
a daily basis from, and including, the last date to which Regular Dividends have been paid (or, if no Regular Dividends have been paid,
from, and including, the Issue Date), in each case to, but excluding, the next Regular Dividend Payment Date.
(2) Computation
of Accumulated Regular Dividends. Accumulated Regular Dividends will be computed on the basis of a 360-day year comprised of twelve
30-day months. Regular Dividends on each share of Convertible Preferred Stock will accrue on the Liquidation Preference of such share
as of immediately before the Close of Business on the preceding Regular Dividend Payment Date (or, if there is no preceding Regular Dividend
Payment Date, on the Initial Liquidation Preference of such share).
(ii) Method
of Payment; Payments in Kind.
(1) Generally.
Subject to Section 5(a)(ii)(3) and Section 5(a)(ii)(4) below, as of the Close of Business on any
Regular Dividend Payment Date the dollar amount of the Regular Dividends (regardless of whether or not declared) that have accumulated
on the Convertible Preferred Stock in respect of the Regular Dividend Period ending on, but excluding, such Regular Dividend Payment
Date (expressed as an amount per share of Convertible Preferred Stock) will (without duplication) be added, effective immediately before
the Close of Business on the related Regular Dividend Payment Date, to the Liquidation Preference of each share of Convertible Preferred
Stock outstanding as of such time; provided, however, that such addition shall not occur nor be required if as of the Close of
Business on such Regular Dividend Payment Date, the Company, in its sole and absolute discretion, subject to Section 5(a)(ii)(3) and
Section 5(a)(ii)(4), has paid in cash the full amount of the Regular Dividends (regardless of whether or not declared) that
have accumulated on the Convertible Preferred Stock in respect of the Regular Dividend Period ending on, but excluding, such Regular
Dividend Payment Date.
24
(2) Construction.
Any Regular Dividends the amount of which is added to the Liquidation Preference thereof pursuant to Section 5(a)(ii)(1) will
be deemed to be “declared” and “paid” on the Convertible Preferred Stock for all purposes of this Certificate
of Designations.
(3) Following
CA Satisfaction. With respect to all Regular Dividend Payment Dates occurring after the Cash Dividend Trigger Date (commencing with
the Regular Dividend Payment Date occurring on December 31, 2028) and provided a CA Satisfaction has then occurred, each Holder
shall, individually with respect to each share of Convertible Preferred Stock held thereby, have the right to elect to receive Regular
Dividends in cash by wire transfer of immediately available funds pursuant to Section 5(a)(i) (a “Cash Dividend
Election”) or by adding to the Liquidation Preference of applicable Convertible Preferred Stock pursuant to Section 5(a)(ii)(1).
In the event of a Cash Dividend Election with respect to a Regular Dividend Period, a Holder shall deliver written notice of such election
in the form attached hereto as Exhibit E (a “Cash Dividend Election Notice”) to the Company on or prior
to the corresponding Regular Dividend Record Date. In the event no Cash Dividend Election Notice is delivered by a Holder with respect
to a Regular Dividend Period prior to the corresponding Regular Dividend Record Date, the Company shall retain the discretion with respect
to such Regular Dividend Period to add the dollar amount of Regular Dividends to the Liquidation Preference of applicable Convertible
Preferred Stock pursuant to Section 5(a)(ii)(1).
(4) Following
Default. With respect to all Regular Dividend Payment Dates following any failure by the Company to timely pay the Optional Repurchase
Price in respect of any shares of Convertible Preferred Stock in connection with the exercise of any Optional Repurchase Right by a Holder
pursuant to Section 8(a) or Section 8(b), which failure is not a CIC Asset Sale Failure (other than in respect
of Balance Convertible Preferred Stock), and provided both a CA Satisfaction and the Cash Dividend Trigger Date shall have then occurred,
commencing with the Regular Dividend Payment Date immediately following such failure, and with respect to all subsequent Regular Dividend
Payment Dates, each Holder shall, individually with respect to each share of Convertible Preferred Stock held thereby, have the right
to elect to receive Regular Dividends in cash by wire transfer of immediately available funds pursuant to Section 5(a)(i) or
by adding to the Liquidation Preference of applicable Convertible Preferred Stock pursuant to Section 5(a)(ii)(1). In the
event of a Cash Dividend Election with respect to a Regular Dividend Period, a Holder shall deliver a Cash Dividend Election Notice to
the Company on or prior to the corresponding Regular Dividend Record Date. In the event no Cash Dividend Election Notice is delivered
by a Holder with respect to a Regular Dividend Period prior to the corresponding Regular Dividend Record Date, the Company shall retain
the discretion with respect to such Regular Dividend Period to add the dollar amount of Regular Dividends to the Liquidation Preference
of applicable Convertible Preferred Stock pursuant to Section 5(a)(ii)(1).
25
(b) Participating
Dividends.
(i) Generally.
Subject to Section 5(b)(ii), no dividend or other distribution on the Common Stock (whether in cash, securities or other
property, or any combination of the foregoing) will be declared or paid on the Common Stock unless, at the time of such declaration and
payment, an equivalent dividend or distribution is declared and paid, respectively, on the Convertible Preferred Stock in the form and
manner set forth below (such a dividend or distribution on the Convertible Preferred Stock, a “Participating Dividend,”
and such corresponding dividend or distribution on the Common Stock, the “Common Stock Participating Dividend”),
such that (1) the Record Date and the payment date for such Participating Dividend occur on the same dates as the Record Date and
payment date, respectively, for such Common Stock Participating Dividend; and (2) subject to the last sentence of this Section 5(b)(i),
the kind and amount of consideration payable per share of Convertible Preferred Stock in such Participating Dividend is the same kind
and amount of consideration that would be payable in the Common Stock Participating Dividend in respect of a number of shares of Common
Stock equal to the number of shares of Common Stock that would be issuable (determined in accordance with Section 10 but
without regard to Section 10(e)(ii) and Section 10(g)) in respect of one (1) share of Convertible Preferred
Stock that is converted with a Conversion Date occurring on such Record Date. With respect to any Common Stock Participating Dividend
that is in the form of cash, in lieu of cash payment thereof, as of the Close of Business on the payment date for such Common Stock Participating
Dividend, the dollar amount of any such Common Stock Participating Dividend (expressed as an amount per share of Convertible Preferred
Stock) will (without duplication) be added, effective immediately before the Close of Business on such payment date, to the Liquidation
Preference of each share of Convertible Preferred Stock outstanding as of such time.
(ii) Common
Stock Change Events and Stock Splits, Dividends and Combinations. Section 5(b)(i) will not apply to, and no Participating
Dividend will be required to be declared or paid in respect of a Common Stock Change Event or an event for which an adjustment to the
Conversion Price is required (or would be required without regard to Section 10(f)(iii)) pursuant to Section 10(f)(i)(1),
as to which Section 10(h) or Section 10(f)(i)(1), respectively, will apply.
(c) Treatment
of Dividends Upon Repurchase or Conversion. If the Optional Repurchase Date or Conversion Date of any share of Convertible Preferred
Stock is after a Record Date for a declared Dividend on the Convertible Preferred Stock and on or before the next Dividend Payment Date,
then the Holder of such share at the Close of Business on such Record Date will be entitled, notwithstanding the related Optional Repurchase
or conversion, as applicable, to receive, on or, at the Company’s election, before such Dividend Payment Date, such declared Dividend
on such share. Solely for purposes of the preceding sentence, and not for any other purpose, a Dividend will be deemed to be declared
only to the extent that it is declared for payment in cash. Except as provided in this Section 5(c), Regular Dividends on
any share of Convertible Preferred Stock will cease to accumulate from and after the Optional Repurchase Date or Conversion Date, as
applicable, for such share, unless the Company defaults in the payment of the related Optional Repurchase Price or Conversion Consideration,
as applicable.
26
SECTION 6. RIGHTS
UPON LIQUIDATION, DISSOLUTION OR WINDING UP.
(a) Generally.
If the Company liquidates, dissolves or winds up, whether voluntarily or involuntarily, then, subject to the rights of any of the
Company’s creditors or holders of any outstanding Liquidation Senior Stock, each share of Convertible Preferred Stock will entitle
the Holder thereof to receive payment for the greater of the amounts set forth in clause (i) and (ii) below out
of the Company’s assets or funds legally available for distribution to the Company’s stockholders, before any such assets
or funds are distributed to, or set aside for the benefit of, any Liquidation Junior Stock:
(i) the
sum of:
(1) the
Liquidation Preference per share of Convertible Preferred Stock; and
(2) all
unpaid Regular Dividends that will have accumulated on such share to, but excluding, the date of such payment; and
(ii) the
amount such Holder would have received in respect of the number of shares of Common Stock that would be issuable (determined in accordance
with Section 10 but without regard to Section 10(e)(ii) and Section 10(g)) upon conversion of
such share of Convertible Preferred Stock assuming the Conversion Date of such conversion occurs on the date of such payment.
Upon payment of such amount in full on the outstanding Convertible
Preferred Stock, Holders of the Convertible Preferred Stock will have no rights to the Company’s remaining assets or funds, if
any. If such assets or funds are insufficient to fully pay such amount on all outstanding shares of Convertible Preferred Stock and the
corresponding amounts payable in respect of all outstanding shares of Liquidation Parity Stock, if any, then, subject to the rights of
any of the Company’s creditors or holders of any outstanding Liquidation Senior Stock, such assets or funds will be distributed
ratably on the outstanding shares of Convertible Preferred Stock and Liquidation Parity Stock in proportion to the full respective distributions
to which such shares would otherwise be entitled.
(b) Merger,
Consolidation and Sale of Assets Deemed Not to Be a Liquidation. For purposes of Section 6(a), the Company’s consolidation
or combination with, or merger with or into, or the sale, lease or other transfer of all or substantially all of the Company’s
assets (other than a sale, lease or other transfer in connection with the Company’s liquidation, dissolution or winding up) to,
another Person will not, in itself, constitute the Company’s liquidation, dissolution or winding up, even if, in connection therewith,
the Convertible Preferred Stock is converted into, or is exchanged for, or represents solely the right to receive, other securities,
cash or other property, or any combination of the foregoing.
27
SECTION 7. CHANGE
OF CONTROL.
(a) Change
of Control Notice. On or before the twentieth (20th) Business Day before the effective date (or anticipated effective
date) of a Change of Control (or, if later, promptly after the Company discovers that a Change of Control may occur), the Company will
send to each Holder a notice of such Change of Control (either concurrently with or after the Public Announcement of the same information)
containing the following information:
(1) a
brief description of the events causing such Change of Control;
(2) the
effective date (or anticipated effective date) of such Change of Control;
(3) the
Optional Repurchase Price per share of Convertible Preferred Stock, assuming for such purpose that the Optional Repurchase Date is the
effective date (or anticipated effective date) of such Change of Control; and
(4) the
Conversion Price in effect on the date of such notice and a description and quantification of any adjustments to the Conversion Price
that may result from such Change of Control.
(b) Withdrawal
of Change of Control Notice. If the underlying Change of Control has been terminated or cancelled and the Company has previously
delivered a notice pursuant to Section 7(a) with respect to such Change of Control, the Company shall withdraw such
notice by delivering a written notice of withdrawal to the Holders at any time before the effective date (or anticipated effective date)
of such Change of Control that was previously contained in such original notice.
(c) Optional
Repurchase or Conversion Right in Connection with a Change of Control. Prior to the consummation of any Change of Control, each Holder
shall have the right (i) subject to Section 10(b)(ii), to exercise an Optional Conversion in respect of any and all
of its Convertible Preferred Stock prior to or contingent upon the consummation of such Change of Control or (ii) subject to Section 8(b) to
exercise an Optional Repurchase Right in respect of any and all of its Convertible Preferred Stock (A) contingent upon the consummation
of such Change of Control or (B) if after the Optional Repurchase Trigger Date, at any time prior to the consummation of such Change
of Control. The Holders and the Company agree that following the exercise by the Holders of an Optional Repurchase Right pursuant to
the preceding sentence, any obligation of the Company to pay the Optional Repurchase Price to the Holders is and shall be subordinate
in right of payment to the prior payment in full in cash of the Obligations (as defined in the Existing Credit Agreement). Unless otherwise
agreed in writing by the required parties to the Existing Credit Agreement, until both (1) the Obligations (as defined in the Existing
Credit Agreement) shall have been paid in full in cash, and (2) all of the Commitments (as defined in the Existing Credit Agreement)
shall have been terminated ((1) and (2) collectively, a “CA Satisfaction”), no payment of any kind or character
may be made to or received by the Holders, whether in cash or other property (excluding, for the avoidance of doubt, any Conversion Shares
issued upon any accompanying conversion) and including by way of set-off, in respect of the Optional Repurchase Right exercised, as applicable,
in accordance with this Section 7(c) (and the holders of such Obligations are hereby designated as intended third party
beneficiaries of the foregoing).
28
(d) Asset
Sale Put Right.
(i) Asset
Sale Put Right. Notwithstanding anything to the contrary in this Certificate of Designations, each Holder will have the right (the
“Asset Sale Put Right”) to require the Company to repurchase certain shares of such Holder’s Convertible Preferred
Stock, not to exceed such Holder’s Asset Sale Put Right Allocation of the applicable Asset Sale Maximum Redemption Amount, in accordance
with Section 8(a) following the occurrence of an Asset Sale Trigger and, as may be designated by such Holder, at any
time within 90 days thereafter. The Asset Sale Put Purchase Price for any share of Convertible Preferred Stock to be redeemed pursuant
of the exercise of the Asset Sale Put Right is an amount equal to the Optional Repurchase Price pursuant to Section 8(f) in
respect of an Optional Repurchase pursuant to Section 8(a) (and, for the avoidance of doubt, any portion of the full
Dividend scheduled to be paid on any Dividend Payment Date that is not declared and paid in cash and is added to the Liquidation Preference
of such share pursuant to Section 5(b)(i) will be included in the Asset Sale Put Purchase Price).
(ii) Asset
Sale Trigger Notice. On or before the twentieth (20th) Business Day before the effective date (or anticipated effective
date) of an Asset Sale Trigger (or, if later, promptly after the Company discovers that an Asset Sale Trigger may occur), the Company
will send to each Holder a notice of such Asset Sale Trigger (either concurrently with or promptly after the Public Announcement of the
same information) containing the following information:
(1) a
brief description of the events causing such Asset Sale Trigger;
(2) the
effective date (or anticipated effective date) of such Asset Sale Trigger;
(3) the
Optional Repurchase Price per share of Convertible Preferred Stock, assuming for such purpose that the Optional Repurchase Trigger Date
is the effective date (or anticipated effective date) of such Asset Sale Trigger; and
(4) the
Conversion Price in effect on the date of such notice and a description and quantification of any adjustments to the Conversion Price
that may result from such Asset Sale Trigger.
(iii) Asset
Sale Proceeds. Contemporaneously with any Asset Sale Trigger, the Company shall apply the proceeds from all such subject Asset Sales
to repay in full all Obligations (as defined in the Existing Credit Agreement) and terminate the Commitments (as defined in the Existing
Credit Agreement), in each case, to the extent necessary (including after giving effect to any consent by the required parties to the
Existing Credit Agreement then outstanding, but expressly excluding any payment with respect to the Optional Repurchase (as defined in
the Loan Warrants)) to permit the Holders of the Convertible Preferred Stock to exercise their Asset Sale Put Right to the maximum extent
and the Company to fulfill its obligations with respect thereto (and the holders of such Obligations are hereby designated as intended
third party beneficiaries of the foregoing). Unless otherwise agreed in writing by the required parties to the Existing Credit Agreement,
until a CA Satisfaction has occurred, no payment of any kind or character may be made to or received by the Holders, whether in cash
or other property and including by way of set-off, in respect of the Asset Sale Put Right exercised, as applicable, in accordance with
this Section 7(d) (and the holders of such Obligations are hereby designated as intended third party beneficiaries of
the foregoing).
29
(iv) Allocation
of Asset Sale Put Right. For purposes of this Section 7(d), the Asset Sale Put Right
shall be allocated among the Holders as follows: with respect to each Holder, the Asset Sale Maximum Redemption Amount multiplied by
a fraction, the numerator of which is the number of shares of Convertible Preferred Stock issued to such initial Holder pursuant to the
Exchange Agreement on the Issue Date and the denominator of which is the aggregate number of all shares of Convertible Preferred Stock
issued to the initial Holders pursuant to the Exchange Agreement on the Issue Date (with respect to each initial Holder, the “Asset
Sale Put Right Allocation”). In the event that any initial Holder of shares of Convertible Preferred Stock shall sell or otherwise
transfer any of such Holder’s Convertible Preferred Stock, the transferee shall be allocated a pro rata portion of such initial
Holder’s Asset Sale Put Right Allocation with respect to such portion of such Convertible Preferred Stock transferred, and the
restrictions of the prior sentence shall apply to such transferee with respect to the portion of the Asset Put Right Allocation allocated
to such transferee. The foregoing shall apply similarly and equally to successive transfers of Convertible Preferred Stock.
(e) Asset
Sale Call Right.
(i) Asset
Sale Call Right. The Company will have the right (the “Asset Sale Call Right”) to repurchase all, or any whole
number of shares that is less than all, of shares of Convertible Preferred Stock immediately following the occurrence of an Asset Sale
Trigger (other than an Asset Sale Trigger that would result in, or otherwise constitute, a Change of Control).
(ii) Delivery
of Asset Sale Call Notice. To exercise an Asset Sale Call Right for any share(s) of Convertible Preferred Stock, the Company
must deliver to each Holder an Asset Sale Call Notice which states:
(1) if
such share(s) are represented by one or more Physical Certificates, the certificate number(s) of such Physical Certificates;
(2) the
number of shares of Convertible Preferred Stock to be repurchased, which must be a whole number;
(3) that
the Company is exercising its Asset Sale Call Right with respect to such share(s); and
(4) that
the Company’s election to effect its exercise of the Asset Sale Call Right is contingent upon the consummation of such Asset Sale
Trigger.
30
(iii) Delivery
of Asset Sale Call Notice is Irrevocable. Once delivered in accordance with this Section 7(e), an Asset Sale Call Notice
will be irrevocable; provided, however, that if the Asset Sale Trigger is not consummated, such Asset Sale Call Notice shall be deemed
to be withdrawn.
(iv) Asset
Sale Call Purchase Price. The Asset Sale Call Purchase Price for any share of Convertible Preferred Stock to be redeemed pursuant
of the exercise of the Asset Sale Call Right is an amount equal to the Optional Repurchase Price pursuant to Section 8(f) in
respect of an Optional Repurchase pursuant to Section 8(a) (and, for the avoidance of doubt, any portion of the full
Dividend scheduled to be paid on any Dividend Payment Date that is not declared and paid in cash and is added to the Liquidation Preference
of such share pursuant to Section 5(b)(i) will be included in the Asset Sale Call Purchase Price); provided that
in the event the Asset Sale Call Right is exercised in respect of Balance Convertible Preferred Stock, the Asset Sale Call Purchase Price
for any such share shall be the amount equal to the Optional Repurchase Price pursuant to Section 8(f) in respect of
an Optional Repurchase pursuant to Section 8(b).
(v) Funds
Legally Available for Payment of Asset Sale Call Purchase Price. The Company will not exercise its Asset Sale Call Right pursuant
to this Section 7(e), unless the Company has sufficient funds legally available to fully pay the Asset Sale Call Purchase
Price in respect of all shares of Convertible Preferred Stock elected for repurchase pursuant to the exercise of such Asset Sale Call
Right.
(vi) Asset
Sale Call Repurchase Date. The date of the consummation of the repurchase of any shares of Convertible Preferred Stock pursuant to
the exercise of the Asset Sale Call Right will be the later of (i) the tenth (10th) Business Day after the date the Company
has duly delivered the Asset Sale Call Notice to each Holder pursuant to Section 7(e)(ii) and (ii) the Asset Sale
Trigger.
(vii) Payment
of the Asset Sale Call Purchase Price. The Company will cause the Asset Sale Call Purchase Price for each share of Convertible Preferred
Stock to be redeemed pursuant to the exercise of the Asset Sale Call Right to be paid to the Holder thereof on or before the applicable
date of the consummation of such repurchase of such share pursuant to the exercise of such Asset Sale Call Right.
(viii) Selection
of Convertible Preferred Stock Subject to Partial Asset Sale Call Repurchase. If less than all shares of Convertible Preferred Stock
then outstanding are repurchased pursuant to the exercise of the Asset Sale Call Right, then the shares of Convertible Preferred Stock
to be subject to such repurchase will be selected by the Company pro rata.
(f) Payments
Upon Change of Control. In the event the Asset Sale Call Right is exercised pursuant to Section 7(e) or the Asset
Sale Put Right is exercised pursuant to Section 7(d) and within two years of the consummation of the applicable repurchase
(a) a Change of Control occurs, (b) the Company enters into a definitive agreement with respect to a Change of Control or (c) the
Company enters into, participates in or engages in discussions or negotiations with any Person with respect to a Change of Control and,
in the case of clause (b) or (c), a Change of Control occurs on or prior to six months following the end of such twenty-four month
period, then, contemporaneous with the consummation of such Change of Control, the Company shall make a cash payment to each Holder of
repurchased Convertible Preferred Stock, by wire transfer of immediately available funds to an account provided by such Holder in writing
to the Company, in an aggregate amount equal to the difference, if positive, obtained by deducting (x) the sum of (i) the Asset
Sale Call Purchase Price or Asset Sale Put Purchase Price actually paid to such Holder in respect of such repurchased Convertible Preferred
Stock and (ii) the value received by such Holder in such Change of Control with respect to the Warrant issued to such Holder in
connection with such Asset Sale Call Right or Asset Sale Put Right, as mutually and reasonably agreed by the Company and such Holder,
from (y) the Optional Repurchase Price which would have been payable upon such Change of Control to such Holder with respect to
an exercise of an Optional Repurchase Right pursuant to Section 8(b) with respect to such repurchased Convertible Preferred
Stock. Unless and until a CA Satisfaction has occurred, no payment of any kind or character may be made to or received by the Holders,
whether in cash or other property and including by way of set-off, in accordance with this Section 7(f).
31
SECTION 8. OPTIONAL
REPURCHASE RIGHT OF THE HOLDERS.
(a) Optional
Repurchase Right. Subject to the other terms of this Section 8, each Holder will have the right (the “Optional
Repurchase Right”) to require the Company to repurchase all, or any whole number of shares that is less than all, of such Holder’s
Convertible Preferred Stock on an Optional Repurchase Date occurring on or after the Optional Repurchase Trigger Date (determined pursuant
to Section 8(e)) for an amount equal to the Optional Repurchase Price per share (determined pursuant to Section 8(f)),
except if covered by Section 8(b); provided that in the event of an Asset Sale Trigger, the Company shall not be required
to repurchase Convertible Preferred Stock that would cause the Asset Sale Maximum Redemption Amount to be exceeded or make any payment
for such repurchase if not permitted pursuant to Section 7(d)(iii) (for the avoidance of doubt, in the event of the
occurrence of successive Asset Sale Triggers, each such Asset Sale Trigger shall entitle the Holders to exercise its Optional Repurchase
Right with respect to such Holder’s shares of Convertible Preferred Stock up to the Asset Sale Maximum Redemption Amount in respect
of the Asset Sale causing such Asset Sale Trigger); provided further that in the event of an Asset Sale Trigger and a CA Satisfaction
occurring at the same time, each Holder may in its sole discretion elect an Optional Repurchase Trigger Date pursuant to clause (x) or
clause (y) of such definition. For the avoidance of doubt, the Holders and the Company agree that any obligation of the Company
to repurchase all or any Convertible Preferred Stock pursuant to this Section 8(a) is and shall be subordinate in right
of payment to the prior payment in full in cash of the Obligations (as defined in the Existing Credit Agreement).
(b) Optional
Repurchase Right in Connection with a Change of Control. Subject to Section 7(c) and the other terms of this Section 8,
each Holder shall also be able to exercise the Optional Repurchase Right to require the Company to repurchase all, or any whole number
of shares that is less than all, of such Holder’s Convertible Preferred Stock on an Optional Repurchase Date occurring on the date
of the consummation of a Change of Control, including, without limitation, a CIC Asset Sale (whether before or after the Optional Repurchase
Trigger Date) for a cash purchase price equal to the Optional Repurchase Price. If upon a CIC Asset Sale a Holder elects to exercise
its Optional Repurchase Right pursuant to the immediately preceding sentence with respect to less than all of such Holder’s Convertible
Preferred Stock (the amount of Convertible Preferred Stock with respect to which such Holder does not elect to exercise an Optional Repurchase
Right, the “Balance Convertible Preferred Stock”), such Holder’s Optional Repurchase Right with respect to such
CIC Asset Sale shall be preserved and tolled until (x) the consummation of another Change of Control following the applicable CIC
Asset Sale, (y) the occurrence of an Asset Sale Trigger following the applicable CIC Asset Sale; provided that in the event
of such Asset Sale Trigger, the Company shall not be required to repurchase Convertible Preferred Stock that would cause the Asset Sale
Maximum Redemption Amount to be exceeded or make any payment for such repurchase if not permitted pursuant to Section 7(d)(iii) (for
the avoidance of doubt, in the event of the occurrence of successive Asset Sale Triggers, each such Asset Sale Trigger shall entitle
the Holders to exercise its Optional Repurchase Right with respect to such Holder’s shares of Convertible Preferred Stock up to
the Asset Sale Maximum Redemption Amount of the Asset Sale causing such Asset Sale Trigger) or (z) the Adjusted Date, in each case,
after which date such Holder may at its discretion exercise its Optional Repurchase Right with respect to the Balance Convertible Preferred
Stock at an Optional Repurchase Price calculated pursuant to Section 8(f)(A)(ii) (other than in respect of Additional
Shares, for which the Optional Repurchase Price shall be calculated pursuant to Section 8(f)(A)(i)). A Holder delivering
an Optional Repurchase Notice pursuant to this Section 8(b) in connection with a Change of Control shall specify in
such Optional Repurchase Notice that its election to effect such Optional Repurchase is contingent upon the consummation of such Change
of Control. Any such Optional Repurchase shall not occur until such time as such Change of Control has been consummated, and if such
Change of Control is not consummated, such Optional Repurchase Notice shall be deemed to be withdrawn. For the avoidance of doubt, the
Holders and the Company agree that any obligation of the Company to repurchase all or any Convertible Preferred Stock pursuant to this
Section 8(b) is and shall be subordinate in right of payment to the prior payment in full in cash of the Obligations
(as defined in the Existing Credit Agreement).
32
(c) Asset
Sale Trigger Repurchase. A Holder delivering an Optional Repurchase Notice pursuant to Section 8(a) in connection
with an Asset Sale Trigger shall specify in such Optional Repurchase Notice that its election to effect such Optional Repurchase is contingent
upon the consummation of such Asset Sale Trigger. Any such Optional Repurchase shall not occur until such time as such Asset Sale Trigger
has been consummated, and if such Asset Sale Trigger is not consummated, such Optional Repurchase Notice shall be deemed to be withdrawn.
(d) Change
in Dividend Rate Following Default. In the event the Company fails to timely pay the Optional Repurchase Price in respect of any
shares of Convertible Preferred Stock in connection with the exercise of any Optional Repurchase Right by a Holder pursuant to Section 8(a) or
Section 8(b), in addition to any other rights or remedies such Holder may have under applicable law, the Regular Dividend
Rate with respect to any such shares of Convertible Preferred Stock that have not been repurchased as required by Section 8(a) or
Section 8(b), as applicable, shall be:
(i) increased
initially to the sum of (x) the then-applicable Regular Dividend Rate plus (y) 2.00% per annum; provided, that the increase
pursuant to this Section 8(d)(i) shall not apply in the event of a failure to timely pay the Optional Repurchase Price
in connection with a CIC Asset Sale (such failure, a “CIC Asset Sale Failure”), and
33
(ii) increased
thereafter (or increased initially in the case of a failure of the Company to timely pay the applicable Optional Repurchase Price in
connection with a CIC Asset Sale Failure) by an additional 1.00% per annum on each subsequent Regular Dividend Payment Date; provided,
that the maximum increase of the Regular Dividend Rate pursuant to this clause (ii) shall not exceed 8.00% per annum; provided
further, that in the event of a CIC Asset Sale Failure prior to the Adjusted Date, the increases pursuant to this clause (ii) shall
not commence until the Adjusted Date (for the avoidance of doubt, this proviso shall not apply to the exercise of an Optional Repurchase
in respect of any Balance Convertible Preferred Stock following such initial CIC Asset Sale).
(e) Optional
Repurchase Date. The Optional Repurchase Date for the Optional Repurchase of any share of Convertible Preferred Stock will be (i) in
the case of (x) an Optional Repurchase pursuant to Section 8(a) other than an Asset Sale Trigger Repurchase or
(y) an Optional Repurchase in connection with clause (z) of the second sentence of Section 8(b), the tenth
(10th) Business Day after the date the Holder of such share has duly delivered the Optional Repurchase Notice relating to such share
to the Company pursuant to Section 8(g); provided, however, that the Optional Repurchase Date will in no event be
before the Optional Repurchase Trigger Date, (ii) in the case of an Optional Repurchase pursuant to Section 8(b) that
is not the subject of the immediately preceding clause (i)(y) or the immediately succeeding clause (iii), the date
of the consummation of the Change of Control; provided that in the event the Optional Repurchase is in respect of Balance Convertible
Preferred Stock in connection with clause (x) of the second sentence of Section 8(b), the Optional Repurchase
Date shall be the date of such applicable Change of Control, or (iii) in the event of an Asset Sale Trigger Repurchase pursuant
to Section 7(d) or in the event of an Optional Repurchase in connection with clause (y) of the second sentence
of Section 8(b), on the date elected by the Holder in the Optional Repurchase Notice being between the date of the consummation
of such Asset Sale Trigger and no later than 90 days following the consummation of such Asset Sale Trigger.
(f) Optional
Repurchase Price. The Optional Repurchase Price for any share of Convertible Preferred Stock to be repurchased upon an Optional Repurchase
pursuant to Section 8(a) or Section 8(b) will be an amount in cash equal to the product of (A) (i) 1.0
(in the case of an Optional Repurchase pursuant to Section 8(a) or, solely with respect to Additional Shares, pursuant
to Section 8(b)) or (ii) 1.5 (in the case of an Optional Repurchase pursuant to Section 8(b) other
than in respect of Additional Shares) and (B) the sum of (x) the Liquidation Preference of such share, plus (y) accumulated
and unpaid Dividends on such share from, and including, the last date on which Dividends have been paid thereon (or, if no Dividends
have been paid, from, and including, the Issue Date) to, but excluding, such Optional Repurchase Date (to the extent such accumulated
and unpaid Dividends are not included in such Liquidation Preference), together with the issuance of Warrants to purchase the applicable
number of shares of Common Stock pursuant to Section 4.9 of the Exchange Agreement; provided, however, that if such
Optional Repurchase Date is after a Dividend Record Date for a declared Dividend on the Convertible Preferred Stock that has been declared
for payment in cash and on or before the next Dividend Payment Date, then (1) pursuant to Section 5(d), the Holder of
such share at the Close of Business on such Dividend Record Date will be entitled, notwithstanding such Optional Repurchase, to receive,
on or, at the Company’s election, before such Dividend Payment Date, such declared cash Dividend on such share; and (2) the
Optional Repurchase Price will not include such declared cash Dividend on such share (and, for the avoidance of doubt, any portion of
the full Dividend scheduled to be paid on such Dividend Payment Date that is not declared and paid in cash and is added to the Liquidation
Preference of such share pursuant to Section 5(b)(i) will be included in the Optional Repurchase Price).
34
(g) Procedures
to Exercise the Optional Repurchase Right.
(i) Delivery
of Optional Repurchase Notice and Shares of Convertible Preferred Stock to be Repurchased. To exercise its Optional Repurchase Right
for any share(s) of Convertible Preferred Stock, the Holder thereof must deliver to the Company:
(1) a
duly completed, written Optional Repurchase Notice with respect to such share(s); and
(2) such
share(s), duly endorsed for transfer;
provided, however, that, with respect
to any Optional Repurchase pursuant to Section 8(a), no such Optional Repurchase Notice may be delivered before, and each
purported delivery of an Optional Repurchase Notice will be deemed null and void if delivered before, the tenth (10th) Business
Day before the Optional Repurchase Trigger Date.
(ii) Contents
of Optional Repurchase Notices. Each Optional Repurchase Notice with respect to any share(s) of Convertible Preferred Stock
must state:
(1) if
such share(s) are represented by one or more Physical Certificates, the certificate number(s) of such Physical Certificates;
(2) the
number of shares of Convertible Preferred Stock to be repurchased, which must be a whole number;
(3) that
such Holder is exercising its Optional Repurchase Right with respect to such share(s); and
(4) if
applicable, that such Holder is exercising its Optional Repurchase Right pursuant to Section 8(b) in connection with
a Change of Control, in which case such Optional Repurchase Notice shall specify that such Holder’s election to effect such Optional
Repurchase is contingent upon the consummation of such Change of Control; provided that no such specification shall be required
with respect to Balance Convertible Preferred Stock.
(iii) Delivery
of Optional Repurchase Notice is Irrevocable. Once delivered in accordance with this Section 8(g), an Optional Repurchase
Notice will be irrevocable subject to Section 8(b) (in the case of an Optional Repurchase pursuant to Section 8(b) in
connection with a Change of Control) and Section 8(c) (in the case of an Optional Repurchase pursuant to Section 8(a) in
connection with an Asset Sale Trigger).
(h) Payment
of the Optional Repurchase Price. Subject to Section 7(c), Section 7(d) and Section 8(d),
the Company will cause the Optional Repurchase Price for each share of Convertible Preferred Stock to be repurchased pursuant to an Optional
Repurchase to be paid to the Holder thereof on or before the later of (i) the applicable Optional Repurchase Date; and (ii) the
second Business Day after the date any Physical Certificate representing such share is delivered to the Company.
35
SECTION 9. DIRECTOR
NOMINATION RIGHT; VOTING RIGHTS; BOARD OBSERVATION RIGHTS. The Convertible Preferred Stock will have no voting rights except as set
forth in this Section 9 or as provided in the Certificate of Incorporation or required by the Delaware General Corporation
Law.
(a) Right
to Nominate Director.
(i) Generally.
For so long as the Investors (or their Permitted Transferees) own, in the aggregate, beneficially and of record an amount of Convertible
Preferred Stock with an aggregate Liquidation Preference equal to at least $25,000,000 (including, for such purpose, the Liquidation
Preference of any shares of Convertible Preferred Stock previously held by the Investors (or their Permitted Transferees) that were subsequently
converted into Conversion Shares pursuant to a Mandatory Conversion or an Optional Conversion, for so long as the Investors (or their
Permitted Transferees) continue to own beneficially and of record such underlying Conversion Shares) (the “Preferred Stock Director
Nomination Right Condition”), the Investors representing at least a majority of the outstanding shares of Convertible
Preferred Stock then outstanding (the “Majority Holders”) will have the right, exercisable by written consent of the
Majority Holders to nominate one (1) person to serve on the Board of Directors (such nominee, the “Preferred Stock Nominee”,
and such director, the “Preferred Stock Director”). The initial Preferred Stock Nominee shall be Mark R. Quinlan.
For so long as the Preferred Stock Director Nomination Right Condition continues to be satisfied, the Company shall nominate the Preferred
Stock Nominee as designated by the Majority Holders in writing for election (or re-election, as applicable) as a director at the end
of each term of the Preferred Stock Director as part of the slate proposed by the Company that is included in the proxy statement (or
consent solicitation or similar document) of the Company relating to the election of the Board of Directors. At such time as the Preferred
Stock Director Nomination Right Condition is no longer satisfied, the Preferred Stock Director shall offer in writing to resign from
the Board of Directors and any committees thereof effective as of a date within thirty (30) days after the first date that the Preferred
Stock Director Nomination Right Condition is no longer satisfied, and, from and after such date, neither the Investors (nor their Permitted
Transferees) shall have any rights under this Section 9(a).
(ii) Vacancies
of the Preferred Stock Director. At all times when the Preferred Stock Director Nomination Right Condition is satisfied, a vacancy
in the office of the Preferred Stock Director (other than vacancies before the initial election and designation of the Preferred Stock
Director) shall only be filled by the written consent of the Majority Holders and the Company shall cause such Preferred Stock Nominee
to fill such resulting vacancy.
36
(iii) Preferred
Stock Director Qualifications. Each Preferred Stock Nominee, including any Preferred Stock Nominee filling a vacancy in the office
the Preferred Stock Director, shall (1) meet all requirements regarding service as a director of the Company under applicable law
and stock exchange rules regarding service as a director of the Company and all other criteria and qualifications for service as
a director applicable to all directors of the Company, including the Company’s Standards of Business Conduct and Corporate Governance
Guidelines, and (2) make himself or herself reasonably available for interviews and consent to such reference and background checks
or other investigations as the Board of Directors may reasonably request (and consistent with those performed on other directors of the
Company) to determine the Preferred Stock Nominee’s eligibility and qualification to serve as a director of the Company. No Preferred
Stock Nominee shall be eligible to serve on the Board of Directors if he or she has been involved in any of the events enumerated under
Item 2(d) of Schedule 13D under the Exchange Act or Item 401(f) of Regulation S-K under the Securities Act, is a “Bad
Actor” as defined in Rule 506(d)(1)(i)-(viii) promulgated under the Securities Act or is subject to any judgment prohibiting
service as a director of any public company. As a condition to any Preferred Stock Nominee’s election to the Board of Directors
or nomination for election as a director of the Company at any meeting of the Company’s stockholders, the Preferred Stock Nominee
must provide to the Company: (A) all information reasonably requested by the Company that is required to be or is customarily disclosed
for directors and candidates for directors in a proxy statement or other filings in accordance with applicable law, any stock exchange
rules or listing standards, in each case, relating to the Preferred Stock Nominee’s election as a director of the Company
or the Company’s operations in the ordinary course of business; (B) all information reasonably requested by the Company in
connection with assessing eligibility and other criteria applicable to directors or satisfying compliance and legal or regulatory obligations,
in each case, relating to the Preferred Stock Nominee’s nomination or election, as applicable, as a director of the Company or
the Company’s operations in the ordinary course of business; (C) an undertaking in writing (in a form provided by the Secretary
of the Company) by the Preferred Stock Nominee to be subject to, bound by and duly comply with the Company’s Corporate Governance
Guidelines and Standards of Business Conduct, with such changes thereto (or such successor policies) as are applicable to all other directors,
in each case, as such changes or successor policies are adopted in good faith by the Board of Directors, and do not by their terms materially,
adversely and disproportionately impact the Preferred Stock Nominee relative to all other directors; and (D) an undertaking to immediately
resign, at the request of the Board of Directors made at such time as the Preferred Stock Director Nomination Right Condition is no longer
satisfied, from the Board of Directors and any committees thereof effective as of the first date the Preferred Stock Director Nomination
Right Condition is no longer satisfied.
(b) Voting
and Consent Rights with Respect to Specified Matters.
(i) From
the Issue Date until the Voting Right Expiration Date, the Company shall not, and shall cause its Subsidiaries not to, take any of the
following actions (including by means of merger, consolidation, reorganization, recapitalization, amendment to the Certificate of Incorporation
or other organizational documents or otherwise) without, the prior affirmative vote or written consent of Holders (solely in the case
of clause (10) below, not be unreasonably withheld), voting exclusively as a single class, representing at least a majority
of the outstanding shares of Convertible Preferred Stock:
(1) authorization
or creation, or increase in the authorized number of shares of, any class or series of, or any Equity-Linked Security or other equity
interest convertible into, any Capital Stock of the Company or any of its Subsidiaries other than in connection solely with any Exempt
Issuance or issuance that is subject to the provisions of Section 10(f)(i)(1);
37
(2) issuance
of any shares of Capital Stock of the Company or any of its Subsidiaries, or any Equity-Linked Security or other equity interest convertible
into Capital Stock of the Company or any of its Subsidiaries, other than (x) any Exempt Issuance, (y) any issuance that is
subject to the provisions of Section 10(f)(i)(1) and (z) on or after the Issue Date, one or more issuances of,
in the aggregate, up to $50,000,000 of shares of Common Stock pursuant to Qualified Offerings (each such issuance pursuant to this clause
(z), a “Permitted Equity Issuance”);
(3) amendment,
alteration, repeal or other modification to any provision of the Certificate of Incorporation (including this Certificate of Designations)
in a manner that would adversely affect the powers, preferences, rights or privileges of the Convertible Preferred Stock; provided, however,
that (i) any increase in the amount of the authorized Common Stock, and (ii) any amendment to the Certificate of Incorporation
and any certificate of designations (but excluding this Certificate of Designations) (x) to implement any Exempt Issuance or issuance
that is subject to the provisions of Section 10(f)(i)(1), or (y) necessary to implement a merger or consolidation that
constitutes a Common Stock Change Event effected in compliance with the terms of this Certificate of Designations, will not be deemed
to adversely affect the powers, preferences, rights or privileges of the Convertible Preferred Stock;
(4) any
Related Party Transaction to be entered into after the Issue Date;
(5) declaration
or payment of any dividends or distributions, other than the declaration or payment of Regular Dividends in respect of Convertible Preferred
Stock, and any dividends or distributions that are subject to the provisions of Section 10(f)(i)(1);
(6) repurchase
or redemption of any Capital Stock of the Company or any of its Subsidiaries, or any Equity-Linked Security or other equity interest
convertible into any Capital Stock of the Company or any of its Subsidiaries, other than (A) repurchases of Convertible Preferred
Stock pursuant to the terms of this Certificate of Designations, (B) in connection with an exercise of the put right with respect
to Loan Warrants representing a maximum of 717,942 Warrant Shares (as defined in the Loan Warrants and subject to adjustment in the amount
of such Warrant Shares based on the terms and conditions of the Loan Warrants) granted to certain Lenders (as defined in the Existing
Credit Agreement) under the Loan Warrants (C) pursuant to an odd-lot tender offer pursuant to Rule 13e-4(h)(5) under the
Exchange Act, (D) in connection with tax withholding upon vesting or settlement of options, restricted stock units, performance
share units or other similar equity awards or upon forfeiture or cashless exercise of options or other equity awards, (E) repurchases
of any equity-based awards (including restricted stock units) issued to employees (or prospective employees who have accepted an offer
of employment), directors or consultants of the Company or any of its Subsidiaries, pursuant to plans that have been approved by a majority
of the independent members of the Board of Directors or that existed as of the Issue Date, and (F) in connection with any stockholder
rights plan;
38
(7) (x) exchange,
reclassification or cancellation of any Capital Stock of the Company or any of its Subsidiaries, or any Equity-Linked Security or other
equity interest convertible into any Capital Stock of the Company or any of its Subsidiaries, other than pursuant to a Common Stock Change
Event effected in compliance with the terms of this Certificate of Designations or (y) directly or indirectly amend, restate or
replace the Loan Warrants in a manner that has the effect of increasing the Optional Repurchase Price (as defined in the Loan Warrants)
or extending the timeframe within which any Holder (as defined in the Loan Warrants) may exercise their Optional Repurchase Right (as
defined in the Loan Warrants);
(8) sale,
disposition, lease, license, spin-off, split-off or other transfer or divestiture of any businesses, business units or assets of the
Company or any of its Subsidiaries (including the Capital Stock of any Subsidiary or other entity), in each case, in any transaction
or series of related transactions (any such transaction, an “Asset Sale”) involving consideration having a fair value
in excess of (x) prior to a CA Satisfaction, $75,000,000, and (y) from and after a CA Satisfaction, $20,000,000, in each case,
as determined in good faith by the Board of Directors and other than a transaction that constitutes a Change of Control;
(9) other
than in connection with an increase in the principal amount of Obligations (as defined in the Existing Credit Agreement) or a refinance
of the Existing Credit Agreement on terms and conditions that, taken as a whole, (A) are not materially different from the Existing
Credit Agreement and are not materially more adverse to the interests of the Company or to the Holders (other than with respect to such
principal amounts) and (B) do not adversely affect the ability of the Company to perform its obligations in connection with any
Optional Repurchase pursuant to Section 8(a) of this Certificate of Designations from and after the dates specified
therein (for the avoidance of doubt, without giving effect to any extension of the Existing Credit Agreements not approved in accordance
with clause (11)), in each case, up to an amount not to exceed 110% of the principal amount of the initial aggregate Commitments
(as defined in the Existing Credit Agreement) under the Existing Credit Agreement, incurrence of any secured indebtedness for borrowed
money (including any obligations in respect of letters of credit) unless permitted under the Existing Credit Agreement (without giving
effect to any modification, amendment, consent or waiver made by the lenders thereunder);
(10) incurrence
of unsecured indebtedness for borrowed money or issuance of any Disqualified Equity Interest (as defined in the Existing Credit Agreement),
unless permitted under the Existing Credit Agreement (without giving effect to any modification, amendment, consent or waiver made by
the lenders thereunder after the date hereof);
(11) amend,
restate or replace the Existing Credit Agreement on terms and conditions that, taken as a whole, (A) are materially different from
the Existing Credit Agreement or materially more adverse to the interests of the Company or to the Holders or (B) adversely affect
the ability of the Company to perform its obligations in connection with any Optional Repurchase pursuant to Section 8(a) of
this Certificate of Designations from and after the dates specified therein (for the avoidance of doubt, without giving effect to any
extension of the Existing Credit Agreement not approved in accordance with this clause (11)), it being understood, however, that
an extension of the Existing Credit Agreement on the same terms shall not require consent hereunder for so long as clause (B) is
complied with; provided, that no such affirmative vote or written consent shall be required solely with respect to (x) increasing
the principal amount of indebtedness for borrowed money up to an amount not to exceed 110% of the principal amount of the initial aggregate
Commitments (as defined in the Existing Credit Agreement) under the Existing Credit Agreement, or (y) increasing the rate of interest
up to an amount to exceed 200 basis points per annum from the highest rate of interest per annum as in effect under the Existing Credit
Agreement on the date hereof;
39
(12) replace
the Existing Credit Agreement after a CA Satisfaction other than a replacement for the direct purpose of refinancing the Existing Credit
Agreement to effect a CA Satisfaction, which replacement must meet the terms and conditions of clause (11); or
(13) agree
or consent to any of the actions prohibited by this Section 9(b)(i).
(c) Right
to Vote with Holders of Common Stock on an As-Converted Basis. Subject to the other provisions of, and without limiting the other
voting rights provided in, this Section 9, and except as provided in the Certificate of Incorporation or required by the
Delaware General Corporation Law, the Holders will have the right to vote together as a single class with the holders of the Common Stock
on each matter submitted for a vote or consent by the holders of the Common Stock, and, for these purposes, (i) the Convertible
Preferred Stock of each Holder will entitle such Holder to be treated as if such Holder were the holder of record, as of the record or
other relevant date for such matter, of a number of shares of Common Stock equal to the number of shares of Common Stock that would be
issuable (determined in accordance with Section 10(e), including Section 10(e)(ii)) upon conversion of such Convertible
Preferred Stock, assuming such Convertible Preferred Stock were converted with a Conversion Date occurring on such record or other relevant
date; and (ii) the Holders will be entitled to notice of all stockholder meetings or proposed actions by written consent in accordance
with the Certificate of Incorporation, the Bylaws of the Company, and the Delaware General Corporation Law as if the Holders were holders
of Common Stock. For the avoidance of doubt, the voting rights set forth in this Section 9(c) will not be limited or
eliminated by the provisions in Section 10(g).
(d) Procedures
for Voting and Consents.
(i) Rules and
Procedures Governing Votes and Consents. If any vote or consent of the Holders will be held or solicited, including at a regular
annual meeting or a special meeting of stockholders, then (1) the Board of Directors will adopt customary rules and procedures
at its discretion to govern such vote or consent, subject to the other provisions of this Section 9; and (2) such rules and
procedures may include fixing a record date to determine the Holders that are entitled to vote or provide consent, as applicable, rules governing
the solicitation and use of proxies or written consents and customary procedures for the nomination and designation, by Holders, of Preferred
Stock Directors for election; provided, however, that with respect to any voting rights of the Holders pursuant to Section 9(c),
such rules and procedures will be the same rules and procedures that apply to holders of the Common Stock with respect to the
applicable matter referred to in Section 9(c).
40
(ii) Voting
Power of the Convertible Preferred Stock. Each share of Convertible Preferred Stock will be entitled to one vote on each matter on
which the Holders of the Convertible Preferred Stock are entitled to vote separately as a class and not together with the holders of
any other class or series of stock.
(iii) Written
Consent in Lieu of Stockholder Meeting. A consent or affirmative vote of the Holders pursuant to Section 9(b) may
be given or obtained either in writing without a meeting or in person or by proxy at a regular annual meeting or a special meeting of
stockholders.
(e) Board
Observation Rights.
(i) From
the Issue Date until the date the Preferred Stock Director Nomination Right Condition is no longer satisfied, the Majority Holders shall
be entitled to designate one observer (who may be a manager or employee of an Investor) (the “Preferred Stock Observer”)
to attend all meetings and special meetings (whether such meetings are held in person, telephonically or otherwise) of (i) the Board
of Directors and (ii) any committee or sub-committee of the Board of Directors, including any committee or sub-committee that may
be established on or after the Issue Date, except that the Preferred Stock Observer shall not be entitled to vote on matters presented
to or discussed by the Board of Directors (or any relevant committee thereof) at any such meetings. The Preferred Stock Observer may
be excluded from any portion of any Board of Directors meeting to the extent such exclusion is reasonably necessary to (x) avoid
violation of any law, rule or regulation or any obligation of confidentiality owing to a third party binding on the Company or its
Affiliates to the extent that such obligation was not entered into in contemplation of this provision (provided that, the Company and
its Affiliates shall use commercially reasonable efforts to avoid entering into any such obligation of confidentiality owing to a third
party), or (y) preserve attorney-client privilege between the Company and its counsel, in each case, in the reasonable determination
of the Company’s outside counsel.
(ii) The
Preferred Stock Observer shall be timely notified of the time and place of any Board of Directors meetings and the Preferred Stock Observer
shall receive copies of all documents distributed to the Board of Directors, including notice of all meetings of the Board of Directors
(which shall describe in reasonable detail the nature and substance of the matters to be discussed and/or voted upon at such meeting
or the proposed actions to be taken by written consent without a meeting), all written consents of the Board of Directors, all materials
and information prepared for consideration at any meeting of the Board of Directors, and all minutes related to each meeting of the Board
of Directors, in each case, as if the Preferred Stock Observer were a member of the Board of Directors or any such applicable committee
and at the same time and in the same manner as provided to the members of the Board of Directors and applicable committee; provided that
the Preferred Stock Observer shall not receive any documents pursuant to this Section 9(e)(ii) to the extent that such documents
relate to any portion of any Board of Directors meeting from which the Preferred Stock Observer is excluded pursuant to Section 9(e)(i).
41
(iii) The
Company shall reimburse the Preferred Stock Observer for all reasonable out-of-pocket costs and expenses incurred in connection with
its participation in any such meeting.
(iv) The
Preferred Stock Observer shall sign a non-disclosure agreement reasonably acceptable to the Company.
SECTION 10. CONVERSION.
(a) Generally.
Subject to the provisions of this Section 10, the Convertible Preferred Stock may be converted only pursuant to a Mandatory
Conversion or an Optional Conversion.
(b) Conversion
at the Option of the Holders.
(i) Conversion
Right; When Shares May Be Submitted for Optional Conversion. Holders will have the right to submit all, or any whole number
of shares that is less than all, of their shares of Convertible Preferred Stock pursuant to an Optional Conversion; provided, however,
that, notwithstanding anything to the contrary in this Certificate of Designations, shares of Convertible Preferred Stock that are
subject to Mandatory Conversion may not be submitted for Optional Conversion after the Close of Business on the Business Day immediately
before the related Mandatory Conversion Date.
(ii) Contingent
Conversion Notice. A Holder delivering an Optional Conversion Notice hereunder in connection with a Change of Control may specify
in such Optional Conversion Notice that its election to effect such conversion is contingent upon the consummation of such Change of
Control, in which case such Optional Conversion shall not occur until such time as is immediately prior to (and subject to) the consummation
of such Change of Control, and if such Change of Control is not consummated, such Optional Conversion Notice shall be deemed to be withdrawn.
(c) Mandatory
Conversion at the Company’s Election.
(i) Mandatory
Conversion Right. Subject to the provisions of this Section 10, the Company has the right (the “Mandatory Conversion
Right”), exercisable at its election, to designate any Business Day after July 22, 2027 as a Conversion Date for the conversion
(such a conversion, a “Mandatory Conversion”) of all, or any portion that is a whole number, of the outstanding shares
of Convertible Preferred Stock, but only if the Last Reported Sale Price per share of Common Stock exceeds $25.00 (as adjusted for any
event contemplated by Section 10(f)(i)(1)) per share of Common Stock on each of at least twenty (20) Trading Days (whether
or not consecutive) during the thirty (30) consecutive Trading Days ending on, and including, the Trading Day immediately before the
Mandatory Conversion Notice Date for such Mandatory Conversion.
42
(ii) Mandatory
Conversion Prohibited in Certain Circumstances. The Company will not exercise its Mandatory Conversion Right, or otherwise send a
Mandatory Conversion Notice, with respect to any Convertible Preferred Stock pursuant to this Section 10(c) unless the
Common Stock Liquidity Conditions are satisfied with respect to the Mandatory Conversion. Notwithstanding anything to the contrary in
this Section 10(c), the Company’s exercise of its Mandatory Conversion Right, and any related Mandatory Conversion
Notice, will not apply to any share of Convertible Preferred Stock as to which an Optional Repurchase Notice has been duly delivered,
and not withdrawn, pursuant to Section 8(a) or Section 8(b).
(iii) Mandatory
Conversion Date. The Mandatory Conversion Date for any Mandatory Conversion will be a Business Day of the Company’s choosing
that is no more than twenty (20), nor less than ten (10), Business Days after the Mandatory Conversion Notice Date for such Mandatory
Conversion.
(iv) Mandatory
Conversion Notice. To exercise its Mandatory Conversion Right with respect to any shares of Convertible Preferred Stock, the Company
must (x) send to each Holder of such shares a written notice of such exercise (a “Mandatory Conversion Notice”)
and (y) substantially contemporaneously therewith, issue a press release through such national newswire service as the Company then
uses (or publish the same through such other widely disseminated public medium as the Company then uses, including its website) containing
the information set forth in the Mandatory Conversion Notice. Such Mandatory Conversion Notice must state:
(1) that
the Company has exercised its Mandatory Conversion Right to cause the Mandatory Conversion of the shares, briefly describing the Company’s
Mandatory Conversion Right under this Certificate of Designations;
(2) the
Mandatory Conversion Date for such Mandatory Conversion and the date scheduled for the settlement of such Mandatory Conversion;
(3) that
shares of Convertible Preferred Stock subject to Mandatory Conversion may be converted earlier at the option of the Holders thereof pursuant
to an Optional Conversion at any time before the Close of Business on the Business Day immediately before the Mandatory Conversion Date;
(4) the
Conversion Price in effect on the Mandatory Conversion Notice Date for such Mandatory Conversion; and
(5) the
CUSIP and ISIN numbers, if any, of the Convertible Preferred Stock.
(v) Selection
and Optional Conversion of Convertible Preferred Stock Subject to Partial Mandatory Conversion. If less than all shares of Convertible
Preferred Stock then outstanding are subject to Mandatory Conversion, then:
(1) the
shares of Convertible Preferred Stock to be subject to such Mandatory Conversion will be selected by the Company pro rata; and
43
(2) if
only a portion of the Convertible Preferred Stock is subject to Mandatory Conversion and a portion of such Convertible Preferred Stock
is subject to Optional Conversion, then the converted portion of such Convertible Preferred Stock will be deemed to be from the portion
of such Convertible Preferred Stock that was subject to Mandatory Conversion.
(d) Conversion
Procedures.
(i) Mandatory
Conversion. If the Company duly exercises, in accordance with Section 10(c), its Mandatory Conversion Right with respect
to any share of Convertible Preferred Stock, then (1) the Mandatory Conversion of such share will occur automatically and without
the need for any action on the part of the Holder(s) thereof; and (2) the shares of Common Stock due upon such Mandatory Conversion
will be registered in the name of, and, if applicable, the cash due upon such Mandatory Conversion will be delivered to, the Holder(s) of
such share of Convertible Preferred Stock as of the Close of Business on the related Mandatory Conversion Date.
(ii) Requirements
for Holders to Exercise Optional Conversion Right.
(1) Generally.
To convert any share of Convertible Preferred Stock pursuant to an Optional Conversion, the Holder of such share must (w) complete,
sign and deliver to the Company an Optional Conversion Notice; (x) deliver any Physical Certificate(s), if any, representing such
Convertible Preferred Stock to the Company (at which time such Optional Conversion will become irrevocable); (y) furnish any endorsements
and transfer documents that the Company may require; and (z) if applicable, pay any documentary or other taxes.
(2) Optional
Conversion Permitted only During Business Hours. Convertible Preferred Stock may be surrendered for Optional Conversion only after
the Open of Business and before the Close of Business on a day that is a Business Day.
(iii) Treatment
of Accumulated Regular Dividends upon Conversion.
(1) No
Adjustments for Accumulated Regular Dividends. Without limiting the operation of Sections 5(a)(ii)(1) and 10(e)(i),
the Conversion Price will not be adjusted to account for any accumulated and unpaid Regular Dividends on any Convertible Preferred Stock
being converted.
(2) Conversions
Between A Record Date and a Dividend Payment Date. If the Conversion Date of any share of Convertible Preferred Stock to be converted
is after a Record Date for a declared Dividend on the Convertible Preferred Stock and on or before the next Dividend Payment Date, then
such Dividend will be paid pursuant to Section 5(c) notwithstanding such conversion.
(iv) When
Holders Become Stockholders of Record of the Shares of Common Stock Issuable Upon Conversion. The Person in whose name any share
of Common Stock is issuable upon conversion of any Convertible Preferred Stock will be deemed to become the holder of record of such
share as of the Close of Business on the Conversion Date for such conversion.
44
(e) Settlement
upon Conversion.
(i) Generally.
Subject to Section 5(c), Section 10(e)(ii), Section 10(g) and Section 12(b),
the consideration due upon settlement of the conversion of each share of Convertible Preferred Stock will consist of a number of shares
of Common Stock equal to the quotient obtained by dividing (I) the sum of (x) the Liquidation Preference of such share of Convertible
Preferred Stock immediately before the Close of Business on the Conversion Date for such conversion; and (y) an amount equal to
accumulated and unpaid Regular Dividends on such share of Convertible Preferred Stock from, and including, the last date on which Regular
Dividends have been paid thereon (or, if no Regular Dividends have been paid, from, and including, the Issue Date) to, but excluding,
the Conversion Date (but only to the extent such accumulated and unpaid Regular Dividends are not included in the Liquidation Preference
referred to in the preceding clause (x)); by (II) the Conversion Price in effect immediately before the Close of Business
on such Conversion Date.
(ii) Payment
of Cash in Lieu of any Fractional Share of Common Stock. Subject to Section 12(b), in lieu of delivering any fractional
share of Common Stock otherwise due upon conversion of any Convertible Preferred Stock, the Company will, to the extent it is legally
able to do so and permitted under the terms of its indebtedness for borrowed money, pay cash based on the Last Reported Sale Price per
share of Common Stock on the Conversion Date for such conversion (or, if such Conversion Date is not a Trading Day, the immediately preceding
Trading Day).
(iii) Delivery
of Conversion Consideration. Except as provided in Sections 10(f)(i)(2) and 10(h), the Company will pay or
deliver, as applicable, the Conversion Consideration due upon conversion of any Convertible Preferred Stock on or before the earlier
of (i) the second (2nd) Business Day and (ii) the number of Trading Days comprising the Standard Settlement Period,
in each case, immediately after the Conversion Date for such conversion.
(f) Conversion
Price Adjustments.
(i) Events
Requiring an Adjustment to the Conversion Price. The Conversion Price will be adjusted from time to time as follows:
(1) Stock
Dividends, Splits and Combinations. If the Company issues solely shares of Common Stock as a dividend or distribution on all or substantially
all shares of the Common Stock, or if the Company effects a stock split or a stock combination of the Common Stock (in each case excluding
an issuance solely pursuant to a Common Stock Change Event, as to which Section 10(h) will apply), then the Conversion
Price will be adjusted based on the following formula:
45
where:
CP0
=
the
Conversion Price in effect immediately before the Close of Business on the Record Date for such dividend or distribution, or immediately
before the Close of Business on the effective date of such stock split or stock combination, as applicable;
CP1
=
the Conversion
Price in effect immediately after the Close of Business on such Record Date or effective date, as applicable;
OS0
=
the number
of shares of Common Stock outstanding immediately before the Close of Business on such Record Date or effective date, as applicable,
without giving effect to such dividend, distribution, stock split or stock combination; and
OS1
=
the number
of shares of Common Stock outstanding immediately after giving effect to such dividend, distribution, stock split or stock combination.
If any dividend, distribution, stock split or
stock combination of the type described in this Section 10(f)(i)(1) is declared or announced, but not so paid or made,
then the Conversion Price will be readjusted, effective as of the date the Board of Directors, or any Officer acting pursuant to authority
conferred by the Board of Directors, determines not to pay such dividend or distribution or to effect such stock split or stock combination,
to the Conversion Price that would then be in effect had such dividend, distribution, stock split or stock combination not been declared
or announced.
(2) Tender
Offers or Exchange Offers. If the Company or any of its Subsidiaries makes a payment in respect of a tender offer or exchange offer
for shares of Common Stock (other than solely pursuant to an odd-lot tender offer pursuant to Rule 13e-4(h)(5) under the Exchange
Act, ), and the value (determined as of the Expiration Time by the Board of Directors) of the cash and other consideration paid per share
of Common Stock in such tender or exchange offer differs from the average of the Daily VWAP for each of the ten (10) consecutive
VWAP Trading Days commencing on, and including, the VWAP Trading Day next succeeding the last day on which tenders or exchanges may be
made pursuant to such tender or exchange offer (as it may be amended) (the “Expiration Date”), then the Conversion
Price will be adjusted based on the following formula:
where:
CP0
=
the Conversion Price
in effect immediately before the time (the “Expiration Time”) such tender or exchange offer expires;
CP1
=
the Conversion Price in effect
immediately after the Expiration Time;
46
SP
=
the
average of the Daily VWAP for each of the ten (10) consecutive Trading Day period (the “Tender/Exchange Offer Valuation
Period”) beginning on, and including, the Trading Day immediately after the Expiration Date;
OS0
=
the number of shares of Common
Stock outstanding immediately before the Expiration Time (including all shares of Common Stock accepted for purchase or exchange
in such tender or exchange offer);
AC
=
the aggregate value (determined
as of the Expiration Time by the Board of Directors) of all cash and other consideration paid for shares of Common Stock purchased
or exchanged in such tender or exchange offer; and
OS1
=
the number of shares of Common
Stock outstanding immediately after the Expiration Time (excluding all shares of Common Stock accepted for purchase or exchange in
such tender or exchange offer);
provided, however, that the Conversion
Price will in no event be adjusted up pursuant to this Section 10(f)(i)(2), except to the extent provided in the immediately
following paragraph. The adjustment to the Conversion Price pursuant to this Section 10(f)(i)(2) will be calculated
as of the Close of Business on the last Trading Day of the Tender/Exchange Offer Valuation Period but will be given effect immediately
after the Expiration Time, with retroactive effect. If the Conversion Date for any share of Convertible Preferred Stock to be converted
occurs on the Expiration Date or during the Tender/Exchange Offer Valuation Period, then, notwithstanding anything to the contrary in
this Certificate of Designations, the Company will, if necessary, delay the settlement of such conversion until the second (2nd) Business
Day after the last Trading Day of the Tender/Exchange Offer Valuation Period.
To the extent such tender or exchange offer is
announced but not consummated (including as a result of being precluded from consummating such tender or exchange offer under applicable
law), or any purchases or exchanges of shares of Common Stock in such tender or exchange offer are rescinded, the Conversion Price will
be readjusted to the Conversion Price that would then be in effect had the adjustment been made on the basis of only the purchases or
exchanges of shares of Common Stock, if any, actually made, and not rescinded, in such tender or exchange offer.
(3) Degressive
Issuances. Subject to Section 10(g), if, on or after the Issue Date the Company or any of its Subsidiaries issues or
otherwise sells any shares of Common Stock, or any Equity-Linked Securities, other than pursuant to a Permitted Equity Issuance, in each
case at an Effective Price per share of Common Stock that is less than the Conversion Price in effect (before giving effect to the adjustment
required by this Section 10(f)(i)(3)) as of the date of the issuance or sale of such shares or Equity Linked Securities (such
an issuance or sale, a “Degressive Issuance”), then, effective as of the Close of Business on such date, the Conversion
Price will be decreased to an amount equal to the greater of (x) the Floor Price and (y) the Weighted Average Issuance Price.
For these purposes, the “Weighted Average Issuance Price” will be equal to:
47
where:
CP
=
such Conversion Price;
OS
=
the number of shares of Common Stock outstanding immediately before such Degressive Issuance;
EP
=
the Effective Price per share of Common Stock in such Degressive Issuance; and
X
=
the sum, without duplication, of (x) the total number of shares of Common Stock issued or sold in such Degressive Issuance; and (y) the maximum number of shares of Common Stock underlying such Equity-Linked Securities issued or sold in such Degressive Issuance;
provided, however, that (A) the Conversion
Price will not be adjusted pursuant to this Section 10(f)(i)(3) solely as a result of an Exempt Issuance; (B) the
issuance of shares of Common Stock pursuant to any Equity-Linked Securities will not constitute an additional issuance or sale of shares
of Common Stock for purposes of this Section 10(f)(i)(3) (it being understood, for the avoidance of doubt, that the
issuance or sale of such Equity Linked Securities, or any re-pricing or amendment thereof, will be subject to this Section 10(f)(i)(3));
and (C) in no event will the Conversion Price be increased pursuant to this Section 10(f)(i)(3). For purposes of this
Section 10(f)(i)(3), any re-pricing or amendment of any Equity-Linked Securities (including, for the avoidance of doubt,
any Equity-Linked Securities existing as of the Issue Date) will be deemed to be the issuance of additional Equity-Linked Securities,
without affecting any prior adjustments theretofore made to the Conversion Price.
(ii) No
Adjustments in Certain Cases.
(1) Certain
Events. Without limiting the operation of Sections 5(a)(ii)(1) and 10(e)(i), the Company will not be required
to adjust the Conversion Price except pursuant to Section 10(f)(i). Without limiting the foregoing, the Company will not
be required to adjust the Conversion Price on account of:
(A) except
as otherwise provided in Section 10(f)(i), the sale of shares of Common Stock for a purchase price that is less than the
market price per share of Common Stock or less than the Conversion Price;
(B) except
as provided in Section 10(f)(i)(3), the issuance of any shares of Common Stock pursuant to any present or future plan providing
for the reinvestment of dividends or interest payable on the Company’s securities and the investment of additional optional amounts
in shares of Common Stock under any such plan;
(C) except
as provided in Section 10(f)(i)(3), the issuance of any shares of Common Stock or options or rights to purchase shares of
Common Stock pursuant to any present or future employee, director or consultant benefit plan or program of, or assumed by, the Company
or any of its Subsidiaries;
48
(D) except
as provided in Section 10(f)(i)(3), the issuance of any shares of Common Stock pursuant to any option, warrant, right or
convertible or exchangeable security of the Company outstanding as of the Issue Date; or
(E) solely
a change in the par value of the Common Stock.
(iii) Adjustment
Deferral. If an adjustment to the Conversion Price otherwise required by this Certificate of Designations would result in a change
of less than one percent (1%) to the Conversion Price, then the Company may, at its election, defer such adjustment, except that all
such deferred adjustments must be given effect immediately upon the earliest of the following: (1) when all such deferred adjustments
would result in a change of at least one percent (1%) to the Conversion Price; (2) the Conversion Date of any share of Convertible
Preferred Stock; (3) the date of an Optional Repurchase Notice for any Optional Repurchase; and (4) the occurrence of any vote
of the stockholders of the Company.
(iv) Stockholder
Rights Plans. If any shares of Common Stock are to be issued upon conversion of any Convertible Preferred Stock and, at the time
of such conversion, the Company has in effect any stockholder rights plan, then the Holder of such Convertible Preferred Stock will be
entitled to receive, in addition to, and concurrently with the delivery of, the consideration otherwise due upon such conversion, the
rights set forth in such stockholder rights plan.
(v) Determination
of the Number of Outstanding Shares of Common Stock. For purposes of Section 10(f)(i), the number of shares of Common
Stock outstanding at any time will (1) include shares issuable in respect of scrip certificates issued in lieu of fractions of shares
of Common Stock; and (2) exclude shares of Common Stock held in the Company’s treasury (unless the Company pays any dividend
or makes any distribution on shares of Common Stock held in its treasury).
(vi) Calculations.
All calculations with respect to the Conversion Price and adjustments thereto will be made to the nearest 1/100th of a cent (with
5/1,000ths rounded upward).
(vii) Notice
of Conversion Price Adjustments. Upon the effectiveness of any adjustment to the Conversion Price pursuant to Section 10(f)(i),
the Company will, as soon as reasonably practicable (and, if such information constitutes material non-public information under U.S.
federal securities laws, either concurrently with or after Public Announcement of the same information) and no later than ten (10) Business
Days after the date of such effectiveness, send notice to the Holders containing (1) a brief description of the transaction or other
event on account of which such adjustment was made; (2) the Conversion Price in effect immediately after such adjustment; and (3) the
effective time of such adjustment.
(g) Limitation
on Conversion Right. Notwithstanding anything to the contrary in this Certificate of Designations, except with respect to the Conversion
Shares resulting from a Mandatory Conversion as to which the restrictions in this Section 10(g) shall not apply, no
shares of Common Stock will be issued or delivered upon conversion of any Convertible Preferred Stock of any Holder, and no Convertible
Preferred Stock of any Holder will be convertible, in each case to the extent, and only to the extent, that such issuance, delivery or
conversion would result in such Holder, either alone or as a part of a “group” (within the meaning of Section 13(d)(3) of
the Exchange Act) “beneficially owning” (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act and for purposes
of Section 13 and Section 16 of the Exchange Act) in excess of nine and ninety-nine hundredths percent (9.99%) of the then
outstanding shares of Common Stock (the “Ownership Limitation”); provided that the Ownership Limitation
shall only apply to the extent that the Common Stock is deemed to constitute an “equity security” pursuant to Rule 13d-1(i) promulgated
under the Exchange Act; provided, further that, a Holder may include in the Optional Conversion Notice that is delivered to the
Company in connection with a Change of Control, a notice stating that such Holder is electing to make successive conversions, which conversions
shall occur (in each case by written notice from such Holder to the Company) from time to time as determined by such Holder at any time
during the Successive Conversion Period (each such conversion being subject to the Ownership Limitation), it being acknowledged that
the intent of this provision is to respect and preserve the Ownership Limitation for purposes of Section 13 and Section 16
of the Exchange Act, but not restrict a Holder subject to the Ownership Limitation from being able to fully convert its Convertible Preferred
Stock in connection with a Change of Control (on a successive basis, if necessary) and therefore receive the Change of Control consideration
(if any) payable in respect of all Common Stock issuable upon conversion of any such Convertible Preferred Stock subject to such Optional
Conversion Notice.
49
By written notice to the Company, a Holder may
from time to time increase or decrease the maximum percentage (each, an “Ownership Limit Change”) to any other percentage
specified not in excess of 19.99% (the “Maximum Cap”) in such notice; provided that any such increase will not be
effective until the sixty-first (61st) day after such notice is delivered to the Company (such sixty-first (61st) day, the “Ownership
Limitation Increase Effective Date”) provided further, that (i) the Maximum Cap shall only apply to the extent required
by Nasdaq Marketplace Rule 5635(b) (“Rule 5635(b)”) and if the Maximum Cap is not required pursuant
to Rule 5625(b), then, the Convertible Preferred Stock held by such Holder shall be convertible on or after the Ownership Limitation
Increase Effective Date following the delivery of the notice up to any percentage of the outstanding shares set forth in such notice
without regard to the Maximum Cap, and (ii) such Maximum Cap may not be amended or waived absent Company stockholder approval in
accordance with Rule 5635(b). Notwithstanding the foregoing, any Holder who has acquired or holds shares of Convertible Preferred
Stock with the purpose or effect of changing or influencing the control of the Company, or in connection with or as a participant in
any transaction having such purpose or effect, shall not be permitted to effect an Ownership Limit Change pursuant to the preceding sentence
to increase the Ownership Limitation in excess of 9.99%.
For purposes hereof, in determining the number
of outstanding shares of Common Stock for purposes of this Section 10(g), the Holders may rely on (I) the number of
outstanding shares of Common Stock as stated in the Company’s most recent quarterly or annual report filed with the Commission,
or any current report filed by the Company with the Commission subsequent thereto, (II) a more recent public announcement by the
Company, or (III) a written confirmation by the Company or the Transfer Agent, within two (2) Trading Days following a written
request from a Holder, of the number of shares of Common Stock then outstanding. With prior written consent of the applicable Holder,
the provisions of this Section 10(g) shall be construed and implemented in a manner otherwise than in strict conformity
with the terms of this Section 10(g) to correct all or any portion hereof which may be defective or inconsistent with
the intended beneficial ownership limitation herein contained or to make changes or supplements necessary or desirable to properly give
effect to such limitation.
50
(h) Effect
of Common Stock Change Event.
(i) Generally.
If there occurs any:
(1) recapitalization,
reclassification or change of the Common Stock, other than (x) changes solely resulting from a subdivision or combination of the
Common Stock, (y) a change only in par value or from par value to no par value or no par value to par value or (z) stock splits
and stock combinations that do not involve the issuance of any other series or classes of securities;
(2) consolidation,
merger, combination or binding or statutory share exchange involving the Company;
(3) sale,
lease or other transfer of all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole, to any Person;
or
(4) other
similar event,
and, as a result of which, the Common
Stock is converted into, or is exchanged for, or represents solely the right to receive, other securities, cash or other property, or
any combination of the foregoing (such an event, a “Common Stock Change Event,” and such other securities, cash or
property, the “Reference Property,” and the amount and kind of Reference Property that a holder of one (1) share
of Common Stock would be entitled to receive on account of such Common Stock Change Event (without giving effect to any arrangement not
to issue or deliver a fractional portion of any security or other property), a “Reference Property Unit”), then, notwithstanding
anything to the contrary in this Certificate of Designations,
(A) from
and after the effective time of such Common Stock Change Event, each share of Convertible Preferred Stock will remain outstanding (unless
otherwise converted or repurchased in accordance with the terms hereof) and (I) the consideration due upon conversion of any Convertible
Preferred Stock will be determined in the same manner as if each reference to any number of shares of Common Stock in this Section 10
or in Section 11, or in any related definitions, were instead a reference to the same number of Reference Property Units;
(II) for purposes of Section 7 and Section 10(c), each reference to any number of shares of Common Stock
in such Sections (or in any related definitions) will instead be deemed to be a reference to the same number of Reference Property Units
and (III) for purposes of the definition of “Change of Control,” the terms “Common Stock” and “common
equity” will be deemed to mean the common equity (including depositary receipts representing common equity), if any, forming part
of such Reference Property; and
51
(B) for
these purposes, (I) the Daily VWAP of any Reference Property Unit or portion thereof that consists of a class of common equity securities
will be determined by reference to the definition of “Daily VWAP,” substituting, if applicable, the Bloomberg page for
such class of securities in such definition; and (II) the Daily VWAP of any Reference Property Unit or portion thereof that does
not consist of a class of common equity securities, and the Last Reported Sale Price of any Reference Property Unit or portion thereof
that does not consist of a class of securities, will be the fair value of such Reference Property Unit or portion thereof, as applicable,
determined in good faith by the Company (or, in the case of cash denominated in U.S. dollars, the face amount thereof).
If the Reference Property consists
of more than a single type of consideration to be determined based in part upon any form of stockholder election, then the composition
of the Reference Property Unit will be deemed to be the weighted average of the types and amounts of consideration actually received,
per share of Common Stock, by the holders of Common Stock. The Company will notify the Holders of such weighted average as soon as practicable
after such determination is made.
(ii) Compliance
Covenant. The Company will not become a party to any Common Stock Change Event unless its terms are consistent with this Section 10(h).
(iii) Execution
of Supplemental Instruments. On or before the date the Common Stock Change Event becomes effective, the Company and, if applicable,
the resulting, surviving or transferee Person (if not the Company) of such Common Stock Change Event (the “Successor Person”)
will execute and deliver such supplemental instruments, if any, as the Company reasonably determines are necessary or desirable to (1) provide
for subsequent adjustments to the Conversion Price pursuant to Section 10(f)(i) in a manner consistent with this Section 10(h);
and (2) give effect to such other provisions, if any, as the Company reasonably determines are appropriate to preserve the economic
interests of the Holders and to give effect to Section 10(h)(i). If the Reference Property includes shares of stock or other
securities or assets of a Person other than the Successor Person, then such other Person will also execute such supplemental instrument(s) and
such supplemental instrument(s) will contain such additional provisions, if any, that the Company reasonably determines are appropriate
to preserve the economic interests of Holders.
(iv) Notice
of Common Stock Change Event. The Company will provide notices of each Common Stock Change Event to Holders (and, if such information
constitutes material non-public information under U.S. federal securities laws, either concurrently with or after Public Announcement
of the same information) no later than (A) twenty (20) Business Days prior to the anticipated effective date of any Common Stock
Change Event and (B) the second (2nd) Business Day after the effective date of the Common Stock Change Event, together with a description
of the kind and amount of the cash, securities or other property that constitutes the Reference Property.
(v) Successive
Common Stock Change Events. The above provisions of this Section 10 shall similarly apply to successive Common Stock
Change Events.
52
SECTION 11. CERTAIN
PROVISIONS RELATING TO THE ISSUANCE OF COMMON STOCK.
(a) Equitable
Adjustments to Prices. Whenever this Certificate of Designations requires the Company to calculate the average of the Last Reported
Sale Prices or Daily VWAPs, or any function thereof, over a period of multiple days (including to calculate an adjustment to the Conversion
Price), the Company will make appropriate adjustments, if any, to those calculations to account for any adjustment to the Conversion
Price pursuant to Section 10(f)(i) that becomes effective, or any event requiring such an adjustment to the Conversion
Price where the Ex-Dividend Date, effective date or Expiration Date, as applicable, of such event occurs, at any time during such period.
(b) Reservation
of Shares of Common Stock. For so long as the Convertible Preferred Stock remains outstanding, the Company will keep reserved, out
of its authorized, unreserved and not outstanding shares of Common Stock, for delivery upon conversion of the Convertible Preferred Stock,
a number of shares of Common Stock that would be sufficient to settle the conversion in full of all shares of Convertible Preferred Stock
then outstanding, if any. To the extent the Company delivers shares of Common Stock held in the Company’s treasury in settlement
of any obligation under this Certificate of Designations to deliver shares of Common Stock, each reference in this Certificate of Designations
to the issuance of shares of Common Stock in connection therewith will be deemed to include such delivery.
(c) Status
of Shares of Common Stock. Each share of Common Stock delivered upon conversion of on the Convertible Preferred Stock of any Holder
will be a newly issued or treasury share and will be duly and validly issued, fully paid, non-assessable, free from preemptive rights
and free of any lien or adverse claim (except to the extent of any lien or adverse claim created by the action or inaction of such Holder
or the Person to whom such share of Common Stock will be delivered). If the Common Stock is then listed on any securities exchange, or
quoted on any inter-dealer quotation system, then the Company will cause each such share of Common Stock, when so delivered, to be admitted
for listing on such exchange or quotation on such system.
(d) Taxes
Upon Issuance of Common Stock. The Company will pay any documentary, stamp or similar issue or transfer tax or duty due on the issue
of any shares of Common Stock upon conversion of the Convertible Preferred Stock of any Holder, except any tax or duty that is due because
such Holder requests those shares to be registered in a name other than such Holder’s name.
SECTION 12. CALCULATIONS.
(a) Responsibility;
Schedule of Calculations. Except as otherwise provided in this Certificate of Designations, the Company will be responsible for making
all calculations called for under this Certificate of Designations or the Convertible Preferred Stock, including determinations of the
Conversion Price, the Daily VWAPs, the Last Reported Sale Prices and accumulated Regular Dividends on the Convertible Preferred Stock.
The Company will make all calculations in good faith, and, absent manifest error, its calculations will be final and binding on all Holders.
The Company will provide a schedule of such calculations to any Holder upon written request.
53
(b) Calculations
Aggregated for Each Holder. The composition of the Conversion Consideration due upon conversion of the Convertible Preferred Stock
of any Holder will be computed based on the total number of shares of Convertible Preferred Stock of such Holder being converted with
the same Conversion Date. For these purposes, any cash amounts due to such Holder in respect thereof will be rounded to the nearest cent.
SECTION 13. TAX
TREATMENT. Notwithstanding anything to the contrary in this Certificate of Designations, for U.S. federal and other applicable state
and local income tax purposes, it is intended that the Convertible Preferred Stock will not be treated as “preferred stock”
within the meaning of Section 305(b)(4) of Code and Treasury Regulations Section l.305-5(a). The Company will, and will
cause its Subsidiaries and agents to, report consistently with, and take no positions or actions inconsistent with, the foregoing treatment
unless otherwise required by a determination within the meaning of Section 1313(a) of the Code.
SECTION 14. NOTICES.
The Company will send all notices or communications to Holders pursuant to this Certificate of Designations in writing and delivered
personally or e-mail (with confirmation of receipt from the recipient, in the case of e-mail), or sent by nationally recognized overnight
courier service to the Holder’s respective addresses shown on the Register. Notwithstanding anything in the Certificate of Designations
to the contrary, any defect in the delivery of any such notice or communication will not impair or affect the validity of such notice
or communication and the failure to give any such notice or communication to all the Holders will not impair or affect the validity of
such notice or communication to whom such notice is sent.
SECTION 15. NO
OTHER RIGHTS. The Convertible Preferred Stock will have no rights, preferences or voting powers except as provided in this Certificate
of Designations or the Certificate of Incorporation or as required by applicable law. Without limiting the generality of the immediately
preceding sentence, (a) the Holders shall not have any preemptive rights, (b) except as expressly provided in this Certificate
of Designations, the shares of Convertible Preferred Stock shall not be redeemable or otherwise mature and the term of the Convertible
Preferred Stock shall be perpetual, and (c) shares of Convertible Preferred Stock shall not be subject to or entitled to the operation
of a retirement or sinking fund.
[The Remainder of This
Page Intentionally Left Blank; Signature Page Follows]
54
IN WITNESS WHEREOF, the Company has caused this
Certificate of Designations to be duly executed as of the date first written above.
COMTECH TELECOMMUNICATIONS CORP.
By:
Name: Michael A. Bondi
Title: Chief Financial Officer
[Signature Page to Certificate of Designations]
EXHIBIT A
FORM OF CONVERTIBLE PREFERRED STOCK CERTIFICATE
Comtech Telecommunications Corp.
Series B-4 Convertible Preferred Stock
[Certificate No.: [_]] No. Shares*[_]]
Comtech Telecommunications
Corp., a Delaware corporation (the “Company”), certifies that [ ]
is the registered owner of [_] shares of the Company’s Series B-4 Convertible Preferred Stock (the “Convertible Preferred
Stock”) represented by this certificate (this “Certificate”). The special rights, preferences and voting
powers of the Convertible Preferred Stock are set forth in the Certificate of Designations of the Company establishing the Convertible
Preferred Stock (the “Certificate of Designations”).
Additional terms of this Certificate are set forth
on the other side of this Certificate.
[The Remainder of This Page Intentionally
Left Blank; Signature Page Follows]
* Insert number of shares
for Physical Certificate only.
A-1
IN WITNESS WHEREOF, Comtech Telecommunications
Corp. has caused this instrument to be duly executed as of the date set forth below.
COMTECH TELECOMMUNICATIONS CORP.
Date:
By:
Name:
Title:
A-2
TRANSFER AGENT’S COUNTERSIGNATURE
[legal name of Transfer Agent], as Transfer
Agent, certifies that this Certificate represents shares of Convertible Preferred Stock referred to in the within-mentioned Certificate
of Designations.
Date:
By:
Authorized Signatory
A-3
REVERSE OF SECURITY
COMTECH TELECOMMUNICATIONS CORP. (THE “COMPANY”)
THE COMPANY WILL FURNISH WITHOUT CHARGE TO EACH
STOCKHOLDER WHO SO REQUESTS, A SUMMARY OF THE POWERS, DESIGNATIONS AND PREFERENCES, OR OTHER SPECIAL RIGHTS OF EACH CLASS OF STOCK
OF THE COMPANY AND THE QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF SUCH PREFERENCES AND RIGHTS, AND THE VARIATIONS IN RIGHTS, PREFERENCES
AND LIMITATIONS DETERMINED FOR EACH SERIES, WHICH ARE FIXED BY THE CERTIFICATE OF INCORPORATION OF THE COMPANY, AS AMENDED, AND THE RESOLUTIONS
OF THE BOARD OF DIRECTORS OF THE COMPANY, AND THE AUTHORITY OF THE BOARD OF DIRECTORS TO DETERMINE VARIATIONS FOR FUTURE SERIES. SUCH
REQUEST MAY BE MADE TO THE OFFICE OF THE SECRETARY OF THE COMPANY OR TO THE TRANSFER AGENT. THE BOARD OF DIRECTORS MAY REQUIRE
THE OWNER OF A LOST OR DESTROYED STOCK CERTIFICATE, OR HIS LEGAL REPRESENTATIVES TO GIVE THE COMPANY A BOND TO INDEMNIFY IT AND ITS TRANSFER
AGENTS AND REGISTRARS AGAINST ANY CLAIM THAT MAY BE MADE AGAINST THEM ON ACCOUNT OF THE ALLEGED LOSS OR DESTRUCTION OF ANY SUCH
CERTIFICATE.
[INSERT RESTRICTIVE LEGENDS IN ACCORDANCE WITH THE EXCHANGE AGREEMENT]
FOR VALUE RECEIVED, ___________________ hereby sell, assign and transfer
unto
(Insert
assignee’s social security or tax identification number)
(Insert
address and zip code of assignee)
Shares of the Series B-4 Convertible Preferred Stock represented
by the within Certificate, and do hereby irrevocably constitute and appoint _______________ as agent to transfer the said shares of Series B-4
Convertible Preferred Stock evidenced hereby on the books of the within-named Company with full power of substitution in the premises.
Date:
Signature:
(Sign exactly as your name appears
on the other side of this Series B-4 Convertible Preferred Stock)
Signature Guarantee:
*
* Signature
must be guaranteed by an “eligible guarantor institution” that is a bank, stockbroker, savings and loan association or credit
union reasonably acceptable to the Company or meeting the requirements of any transfer agent appointed by the Company from time to time,
which requirements include membership or participation in the Securities Transfer Agents Medallion Program (“STAMP”) or such
other “signature guarantee program” as may be determined by the Transfer Agent in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.
A-4
EXHIBIT B
OPTIONAL CONVERSION NOTICE
Comtech Telecommunications Corp.
Series B-4 Convertible Preferred Stock
Subject to the terms of the
Certificate of Designations, by executing and delivering this Optional Conversion Notice, the undersigned Holder of the Convertible Preferred
Stock identified below directs the Company to convert (check one):
all of the shares of Convertible Preferred Stock
*_____________________ shares of Convertible
Preferred Stock
identified by CUSIP No. and Certificate No.
Date:
(Legal Name of
Holder)
By:
Name:
Title:
Signature Guaranteed: ______________
Participant in a Recognized Signature Guarantee
Medallion Program
By:
Authorized Signatory
* Must be a whole number.
B-1
EXHIBIT C
OPTIONAL REPURCHASE NOTICE
Comtech Telecommunications Corp.
Series B-4 Convertible Preferred Stock
Subject to the terms of the Certificate of Designations,
by executing and delivering this Optional Repurchase Notice, the undersigned Holder of the Convertible Preferred Stock identified below
is exercising its Optional Repurchase Right with respect to (check one):
Pursuant to Section 8(a)
Pursuant to Section 8(b)
In accordance with clause
(x) ¨ of the definition
of “Optional Repurchase Trigger Date”.
clause (y) ¨
clause (z) ¨
all of the shares of Convertible Preferred Stock
*_____________________ shares of Convertible
Preferred Stock
identified by CUSIP No. and Certificate No.
Date:
(Legal Name of
Holder)
By:
Name:
Title:
Signature Guaranteed: ______________
Participant in a Recognized Signature Guarantee
Medallion Program
By:
Authorized Signatory
* Must be a whole number.
C-1
EXHIBIT D
FORM OF RESTRICTED STOCK LEGEND
THE OFFER AND SALE OF THIS SECURITY AND THE SHARES
OF COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), AND THIS SECURITY AND SUCH SHARES MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED EXCEPT
(A) PURSUANT TO A REGISTRATION STATEMENT THAT IS EFFECTIVE UNDER THE SECURITIES ACT; OR (B) PURSUANT TO AN EXEMPTION FROM,
OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES
MAY BE PLEDGED AS PERMITTED BY THE EXCHANGE AGREEMENT, DATED AS OF JUNE 14, 2026.
D-1
EXHIBIT E
CASH DIVIDEND ELECTION NOTICE
Comtech Telecommunications Corp.
Series B-4 Convertible Preferred Stock
Subject to the terms of the Certificate of Designations, by executing
and delivering this Cash Dividend Election Notice, the undersigned Holder of the Convertible Preferred Stock identified below is exercising
its Cash Dividend Election with respect to (check one):
all of the shares of Convertible Preferred Stock
*_____________________ shares of Convertible
Preferred Stock
identified by CUSIP No. and Certificate No.
with respect to the Regular Dividend Period ending _________________
Date:
(Legal Name of Holder)
By:
Name:
Title:
* Must be a whole number.
E-1
Exhibit D
Form of Series B-4 Registration Rights
Agreement
D-1
Exhibit E
Disclosure Schedule
E-1
Exhibit F
Form of Warrant
F-1
Exhibit G
Form of Series B-4 Voting Agreement
G-1
Exhibit H
Form of Securities Purchase Agreement
H-1
EX-10.6 — EXHIBIT 10.6
EX-10.6
Filename: tm2617923d1_ex10-6.htm · Sequence: 10
Exhibit 10.6
FORM OF
COMTECH TELECOMMUNICATIONS CORP.
VOTING AGREEMENT
VOTING AGREEMENT
THIS
VOTING AGREEMENT (this “Agreement”), is made and entered into as of June 14, 2026,
by and between Comtech Telecommunications Corp., a Delaware corporation (the “Company”), and the undersigned [Magnetar]
/ [White Hat] Investors (each, an “Investor”; together, the “Investors”). Capitalized terms used
but not defined herein shall have their respective meanings set forth in that certain Exchange Agreement (the “Exchange Agreement”),
dated as of the date hereof, by and among the Company, Investors, and certain other parties
thereto.
RECITALS
A. The Company has authorized a new series
of its preferred stock titled the “Series B-4 Convertible Preferred Stock,”
par value $0.10 per share, with an initial stated value equal to $1,238.23 per share plus
Dividends accrued and added to the Liquidation Preference pursuant to Section 5 of the
Series B-3 Certificate of Designations from the date hereof to the date of Exchange
(the “Series B-4 Preferred Stock”), in an aggregate number of 178,180.34
shares;
B. Pursuant to the Exchange Agreement, at
the Closing, the Investors will exchange all shares of Series B-3 Preferred Stock of
the Company held thereby for an equal number of shares of Series B-4 Preferred Stock
(the “Offering”);
C. Pursuant to the Series B-4 Certificate
of Designations, Holders of the Series B-4 Preferred Stock generally will have the right
to vote on an as-converted basis together as a single class with the holders of the Common
Stock on each matter submitted for a vote or consent by the holders of the Common Stock;
and
D. In connection with the Offering, the parties
hereto desire to enter into this Agreement to set forth their agreements and understandings
with respect to how the shares of Series B-4 Preferred Stock and Common Stock held or
owned, directly or indirectly, by them or over which they exercise direct or indirect voting
power, will be voted.
NOW, THEREFORE, the parties
agree as follows:
1. Voting
(a) At
each meeting of the stockholders of the Company (including, if applicable, through the execution of one or more written consents if stockholders
of the Company are requested to vote through the execution of an action by written consent in lieu of any such annual or special meeting
of stockholders of the Company) and at every postponement or adjournment thereof, the Investors shall vote, all of the shares of Series B-4
Preferred Stock or Conversion Shares beneficially owned by the Investors, in the aggregate (the “Voting Shares”),
and entitled to vote at such meeting of the stockholders (collectively, the “Voting Investors”), in the same proportion
as the vote of all holders (excluding the Voting Investors) of shares of Series B-4 Preferred Stock or Common Stock, as applicable;
provided, however, such obligation shall only apply to a vote by the Voting Investors of the Voting Investors’ shares
of Series B-4 Preferred Stock or Conversion Shares, as applicable which exceeds [16.50%] [3.4999%]1 of the Company’s
outstanding voting power, in the aggregate, as of January 22, 2024.
1 Magnetar Investors will be subject to the 16.5% cap and
White Hat Investors will be subject to a 3.4999% cap, respectively.
1
(b) The
Investors shall be present, in person or by proxy, at all meetings of the stockholders of the Company so that all Voting Shares may be
counted for the purposes of determining the presence of a quorum and voted in accordance with Section 1(a) at such meetings
(including at any adjournments or postponements thereof). The foregoing provision shall also apply to the execution by such Persons of
any consent in lieu of a meeting of holders of shares of Common Stock or Series B-4 Preferred Stock. Not later than five (5) Business
Days prior to each meeting of the Company’s stockholders, the Investors shall vote in accordance with this Section 1.
(c) For
the avoidance of doubt, the provisions of this Section 1 shall not apply to the voting and consent rights of the holders
of Series B-4 Preferred Stock to be set forth in Section 9(b) of the Series B-4 Certificate of Designations.
(d) Nothing
in this Section 1 will prevent the designee of the Investors serving on the Board of Directors from taking any action while
acting in such designee’s capacity as a director of the Company in accordance with his or her fiduciary duties as a director.
2. Term.
This Agreement shall become effective automatically as of the Closing and shall continue in effect after the Closing until, and shall
terminate automatically upon, such time as the Investors and their Affiliates cease to beneficially own (i) the shares of Series B-4
Preferred Stock, (ii) the shares of Common Stock issued upon conversion of the shares of Series B-4 Preferred Stock and (iii) the
Warrants and any shares of Common Stock issued or issuable upon the exercise of the Warrants. For the avoidance of doubt, in the event
that the Securities Purchase Agreement is terminated prior to the Closing in accordance with its terms, this Agreement shall be terminated
automatically with no further action required on the part of the parties hereto, and shall thereafter be deemed to be void and of no
effect.
3. Transfer
Restrictions.
3.1 Restrictions
on Transfer. The parties hereto acknowledge and agree that the shares of Series B-4 Preferred
Stock and any Conversion Shares are subject to the applicable restrictions on Transfer set forth in Section 4.3 of the Exchange
Agreement.
3.2 Joinder.
Each permitted transferee of any shares of Series B-4 Preferred Stock pursuant to Section 4.3 of the Exchange Agreement
shall continue to be subject to the terms hereof, and as a condition to any Transfer of Series B-4 Preferred Stock to a permitted
transferee pursuant to Section 4.3 of the Exchange Agreement, such permitted transferee shall agree in writing to be bound
by and subject to the terms of this Agreement by executing and delivering to the Company a joinder to this Agreement in a form reasonably
acceptable to the Company (a “Joinder”). Upon the execution and delivery of a Joinder to the Company by any permitted
transferee, such permitted transferee shall be deemed to be a party hereto as if such permitted transferee were the Transferor and such
permitted transferee’s signature appear on the signature page to this Agreement. Any Transfer not made in compliance with
the requirements of this Section 3.2 shall be null and void ab initio.
3.3 Specific
Performance. The parties hereto agree that irreparable damage could occur and that a party may not have any adequate remedy at law
in the event that any of the provisions of this Agreement are not performed in accordance with their terms or were otherwise breached.
Accordingly, each party shall without the necessity of proving the inadequacy of money damages or posting a bond be entitled to an injunction
or injunctions to prevent breaches of this Agreement and to enforce specifically the terms, provisions and covenants contained therein,
this being in addition to any other remedy to which they are entitled at law or in equity.
2
4. Representations
and Warranties. The Investors hereby represent and warrant, severally and not jointly, as follows:
4.1 Power
and Authority. Each Investor is a limited liability company or a limited partnership, duly formed, validly existing and in good standing
under the laws of the jurisdiction of its formation and has all requisite limited liability company, limited partnership or other entity
power and authority necessary to own its properties and to carry on its business as presently conducted.
4.2 Due
Authorization. Each Investor is a limited liability company or a limited partnership, duly formed, validly existing and in good standing
under the laws of the jurisdiction of its formation and has all requisite limited liability company, limited partnership or other entity
power and authority necessary to own its properties and to carry on its business as presently conducted.
4.3 Execution
and Delivery. This Agreement has been duly and validly executed and delivered by each Investor and constitutes a valid and legally
binding obligation of each Investor enforceable against such Investor in accordance with its terms, except as the enforceability may
be limited by applicable laws relating to bankruptcy, insolvency, reorganization, moratorium or other similar legal requirement relating
to or affecting creditors’ rights generally and except as the enforceability is subject to general principles of equity (regardless
of whether enforceability is considered in a proceeding in equity or at law).
4.4 No
Conflict. The authorization, execution, delivery and performance by each Investor of this Agreement, and the consummation by Investor
of the transactions contemplated hereby do not and will not: (a) violate or result in the breach of any provision of the organizational
documents of Investor; or (b) with such exceptions that have not had, and would not reasonably be expected to have, individually
or in the aggregate, a material adverse effect on its ability to perform its obligations under this Agreement: (i) violate any provision
of, constitute a breach of, or default under, any judgment, order, writ, or decree applicable to such Investor or any material contract
to which Investor is a party; or (ii) violate any provision of, constitute a breach of, or default under, any applicable state,
federal or local law, rule or regulation.
5. Miscellaneous.
5.1 Successors
and Assigns. This Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors and
permitted assigns. This Agreement may be assigned in connection with a Transfer of Series B-4 Preferred Stock to a transferee permitted
by Section 4.3 of the Exchange Agreement and subject to Section 3 hereof, subject to the terms set forth therein.
No other assignment of this Agreement or of any rights or obligations hereunder may be made by any party hereto without the prior written
consent of the other parties hereto. Any purported assignment or delegation in violation of this Agreement shall be null and void ab
initio.
5.2 Governing
Law. This Agreement shall be governed by, and construed in accordance with, the laws of the state of Delaware, without giving effect
to any choice of law or conflict of law rules or provisions (whether of the state of Delaware or any other jurisdiction) that would
cause the application of the laws of any jurisdiction other than the state of Delaware.
5.3 Counterparts.
This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement, and will become
effective when one or more counterparts have been signed by a party and delivered to the other parties. Copies of executed counterparts
of signature pages to this Agreement may be transmitted by PDF (portable document format) or facsimile and such PDFs or facsimiles
will be deemed as sufficient as if actual signature pages had been delivered.
3
5.4 Headings.
The Section, Article and other headings contained in this Agreement are inserted for convenience of reference only and will not
affect the meaning or interpretation of this Agreement.
5.5 Notices.
All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed to have been duly
given or made as follows: (a) if sent by registered or certified mail in the United States return receipt requested, upon receipt;
(b) if sent by nationally recognized overnight air courier, one (1) Business Day after mailing; (c) if sent by e-mail
transmission, with a copy sent on the same day in the manner provided in the foregoing clause (a) or (b), when transmitted and receipt
is confirmed; and (d) if otherwise actually personally delivered, when delivered, provided, that such notices, requests,
demands and other communications are delivered to the address set forth below, or to such other address as any party shall provide by
like notice to the other parties to this Agreement:
If to the Company, to:
Comtech Telecommunications Corp.
305 N 54th Street
Chandler, Arizona 85226
E-mail: don.walther@comtech.com
Attention: Don Walther
with a copy (which shall
not constitute notice) to:
Norton Rose Fulbright US
LLP
1301 Avenue of the Americas
New York, New York 10019
E-mail: steven.suzzan@nortonrosefulbright.com
Attention: Steven I. Suzzan
If to Investors, to the
address set forth on the signature pages hereto
with a copy (which shall
not constitute notice) to:
Counsel to the Magnetar Investors:
Willkie Farr & Gallagher LLP
787 Seventh Avenue
New York, NY 10019-6099
E-mail: ehalperin@willkie.com; sewen@willkie.com
Attention: Eric Halperin; Sean Ewen
Counsel to the White Hat Investors:
McDermott Will & Schulte LLP
919 Third Avenue
New York, NY 10022
E-mail: eklein@mcdermottlaw.com
Attention: Eleazer Klein
4
5.6 Amendments
and Waivers. This Agreement may not be modified or amended except by an instrument or
instruments in writing signed by each party hereto. Any party hereto may, only by an instrument in writing, waive compliance by any other
party or parties hereto with any term or provision hereof on the part of such other party or parties hereto to be performed or complied
with. If, and whenever on or after the date hereof during the term of this Agreement, the Company amends, modifies or waives any term,
condition or other provision of the Voting Agreement entered into by and between the Company and the [White Hat] / [Magnetar] Investors
in substantially the same form as this Agreement (the “[White Hat] / [Magnetar] Voting Agreement”), that is more favorable
to the [White Hat] / [Magnetar] Investors than those terms, conditions or other provisions included in this Agreement with respect to
the Investors, then (i) the Company shall provide written notice thereof to the Investors promptly following the occurrence thereof
and (ii) the terms, conditions and other provisions of this Agreement shall be, without any further action by the Investors or the
Company, automatically amended and modified in an economically and legally equivalent manner such that the Investors shall receive the
benefit of the more favorable terms, conditions and other provisions set forth in the [White Hat] / [Magnetar] Voting Agreement, as such
agreement has been so amended, modified or waived, provided that upon written notice to the Company within ten (10) Business Days
following receipt of notice from the Company of such amendment, modification or waiver, the Investors may elect not to accept the benefit
of any such amended, modified or waived terms, conditions or other provisions, in which event the terms, conditions or other provisions
contained in this Agreement shall apply to the Investors as it was in effect immediately prior to such amendment, modification or waiver
as if such amendment, modification or waiver never occurred with respect to the Investors. The foregoing shall apply similarly and equally
to each amendment, modification or waiver of the [White Hat] / [Magnetar] Voting Agreement. No failure or delay of any party in exercising
any right or remedy hereunder shall operate as a waiver thereof, nor will any single or partial exercise of any right or power, or any
abandonment or discontinuance of steps to enforce such right or power, preclude any other or further exercise thereof or the exercise
of any other right or power. The waiver by any party hereto of a breach of any term or provision hereof shall not be construed as a waiver
of any subsequent breach. The rights and remedies of the parties hereunder are cumulative and are not exclusive of any rights or remedies
that they would otherwise have hereunder.
5.7 Severability.
Any provision hereof that is held to be invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, shall
be ineffective only to the extent of such invalidity, illegality or unenforceability, without affecting in any way the remaining provisions
hereof, provided, however, that the parties will attempt in good faith to reform this Agreement in a manner consistent
with the intent of any such ineffective provision for the purpose of carrying out such intent.
5.8 Entire
Agreement; No Third Party Beneficiary. This Agreement, the Series B-4 Certificate of Designations, the Exchange Agreement and
the Series B-4 Registration Rights Agreement contain the entire agreement by and among the parties with respect to the subject matter
hereof and all prior negotiations, writings and understandings relating to the subject matter of this Agreement. This Agreement is not
intended to confer upon any Person not a party hereto (or their successors and permitted assigns) any rights or remedies hereunder.
5.9 Dispute
Resolution. Any dispute relating hereto shall be heard first in the Delaware Court of Chancery, and, if applicable, in any state
or federal court located in of Delaware in which appeal from the Court of Chancery may validly be taken under the laws of the State of
Delaware (each a “Chosen Court” and collectively, the “Chosen Courts”), and the parties agree to
the exclusive jurisdiction and venue of the Chosen Courts. Such Persons further agree that any proceeding seeking to enforce any provision
of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby or by any matters
related to the foregoing (the “Applicable Matters”) shall be brought exclusively in a Chosen Court, and that any proceeding
arising out of this Agreement or any other Applicable Matter shall be deemed to have arisen from a transaction of business in the state
of Delaware, and each of the foregoing Persons hereby irrevocably consents to the jurisdiction of such Chosen Courts in any such proceeding
and irrevocably and unconditionally waives, to the fullest extent permitted by law, any objection that such Person may now or hereafter
have to the laying of the venue of any such suit, action or proceeding in any such Chosen Court or that any such proceeding brought in
any such Chosen Court has been brought in an inconvenient forum.
5
5.10 Waiver
of Jury Trial. EACH PARTY HERETO, FOR ITSELF AND ITS AFFILIATES, HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT OR OTHER PROCEEDING (WHETHER BASED ON CONTRACT, TORT
OR OTHERWISE) ARISING OUT OF OR RELATING TO THE ACTIONS OF THE PARTIES HERETO OR THEIR RESPECTIVE AFFILIATES PURSUANT TO THIS AGREEMENT
OR IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF.
[Signature Page Follows]
6
IN WITNESS WHEREOF, the parties
have executed this Agreement as of the date first written above.
[INVESTORS]
By:
Name:
Title:
COMTECH TELECOMMUNICATIONS CORP.
By:
Name:
Title:
[Signature Page to Voting Agreement]
EX-10.7 — EXHIBIT 10.7
EX-10.7
Filename: tm2617923d1_ex10-7.htm · Sequence: 11
Exhibit 10.7
REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
COMTECH TELECOMMUNICATIONS CORP.,
AND
THE ENTITIES LISTED ON EXHIBIT B HERETO
Dated as of June 14, 2026
TABLE OF CONTENTS
Page
ARTICLE I Resale Shelf Registration
1
Section 1.1.
Resale Shelf Registration Statement
1
Section 1.2.
Effectiveness Period
2
Section 1.3.
Subsequent Shelf Registration
2
Section 1.4.
Supplements and Amendments
2
Section 1.5.
Subsequent Holder Notice
2
Section 1.6.
Underwritten Offering
3
Section 1.7.
Take-Down Notice
3
ARTICLE II Company Registration
4
Section 2.1.
Notice of Registration
4
Section 2.2.
Underwriting
4
Section 2.3.
Right to Terminate Registration
5
ARTICLE III Additional Provisions
Regarding Registration Rights
5
Section 3.1.
Registration Procedures
5
Section 3.2.
Limitation on Subsequent Registration Rights
8
Section 3.3.
Expenses of Registration
8
Section 3.4.
Information by Holders
8
Section 3.5.
Rule 144 Reporting
9
ARTICLE IV Indemnification
10
Section 4.1.
Indemnification by Company
10
Section 4.2.
Indemnification by Holders
10
Section 4.3.
Notification
11
Section 4.4.
Contribution
12
ARTICLE V Termination of Registration
Rights; ASSIGNMENT
12
Section 5.1.
Termination of Registration Rights
12
Section 5.2.
Assignment
12
ARTICLE VI Miscellaneous.
13
Section 6.1.
Counterparts
13
Section 6.2.
Governing Law; Waiver of Jury Trial
13
i
Section 6.3.
Entire Agreement; No Third Party Beneficiary
14
Section 6.4.
Expenses
14
Section 6.5.
Notices
14
Section 6.6.
Successors and Assigns
15
Section 6.7.
Headings
15
Section 6.8.
Amendments and Waivers
15
Section 6.9.
Interpretation; Absence of Presumption
16
Section 6.10.
Severability
16
ii
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS
AGREEMENT (the “Agreement”) is entered into as of June 14, 2026, by and among Comtech Telecommunications Corp.,
a Delaware corporation (the “Company”), and the entities that are listed on Exhibit B attached hereto
(each, an “Investor” and collectively, the “Investors”). Capitalized terms used but not defined
elsewhere herein are defined in Exhibit A.
Concurrently
with this Agreement, (i) the Company is entering into an Exchange Agreement with the Investors (as amended from time to time, the
“Exchange Agreement”), pursuant to which, among other things, all Investors that own Series B-3 Preferred Stock
shall exchange such shares of Series B-3 Preferred Stock for shares of a newly-created series of shares of preferred stock
of the Company titled “Series B-4 Convertible Preferred Stock,” with a par value of $0.10 per share (the “Series B-4
Preferred Stock”), and (ii) the Company is issuing to certain Investors, and/or may subsequently issue to certain Investors
after the date hereof, warrants to acquire shares of Common Stock (collectively, the “Warrants”).
As
a condition to each of the parties’ obligations under the Exchange Agreement, the Company and the Investors are entering
into this Agreement for the purpose of granting certain registration and other rights to the Investors.
In
consideration of the premises and the mutual representations, warranties, covenants and agreements contained herein, and for other
good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
ARTICLE I
Resale Shelf Registration
Section 1.1. Resale
Shelf Registration Statement. Subject to the other applicable provisions of this Agreement, upon the written request of any Investor,
the Company shall use its reasonable best efforts to file within sixty (60) days of such request a registration statement covering the
sale or distribution from time to time by the Holders, on a delayed or continuous basis pursuant to Rule 415 of the Securities Act
of all of the Registrable Securities on Form S-3 (except if the Company is not then eligible to register for resale the Registrable
Securities on Form S-3, then such registration shall be on another appropriate form and shall provide for the registration of such
Registrable Securities for resale by such Holders in accordance with any reasonable method of distribution elected by the Holders) (the
“Resale Shelf Registration Statement” and such registration, the “Resale Shelf Registration”),
and if the Company is a WKSI as of the filing date, the Resale Shelf Registration Statement shall be an Automatic Shelf Registration
Statement. If the Resale Shelf Registration Statement is not an Automatic Shelf Registration Statement, then the Company shall use its
reasonable best efforts to cause such Resale Shelf Registration Statement to be declared effective by the Commission as promptly as practicable
after the filing thereof, but in any event prior to the date that is one hundred eighty (180) days after the original request made pursuant
to this Section 1.1.
1
Section 1.2. Effectiveness
Period. Once declared effective, the Company shall, within two (2) Business Days thereof, file a prospectus supplement pursuant
to Rule 424(b) of the Securities Act and, subject to the other applicable provisions of this Agreement, use its reasonable
best efforts to cause the Resale Shelf Registration Statement to be continuously effective and usable until such time as there are no
longer any Registrable Securities (the “Effectiveness Period”).
Section 1.3. Subsequent
Shelf Registration. If (i) any Shelf Registration ceases to be effective under the Securities Act for any reason at any time
during the Effectiveness Period, or (ii) the Company issues additional Registrable Securities to a Holder that are not covered by
any previously filed Shelf Registration, the Company shall use its reasonable best efforts to, in the case of clause (i), promptly cause
such Shelf Registration to again become effective under the Securities Act (including obtaining the prompt withdrawal of any order suspending
the effectiveness of such Shelf Registration), and in any event shall within thirty (30) days of such cessation of effectiveness, amend
such Shelf Registration in a manner reasonably expected to obtain the withdrawal of any order suspending the effectiveness of such Shelf
Registration or, in the case of clause (i) or (ii), file a post-effective amendment to a previously filed registration statement
or file an additional registration statement (each, a “Subsequent Shelf Registration”) for an offering to be made
on a delayed or continuous basis pursuant to Rule 415 of the Securities Act registering the resale from time to time by Holders
thereof of all securities that are Registrable Securities as of the time of such filing. If a Subsequent Shelf Registration is filed,
the Company shall use its reasonable best efforts to (a) cause such Subsequent Shelf Registration to become effective under the
Securities Act as promptly as is reasonably practicable after such filing, but in no event later than the date that is ninety (90) days
after such Subsequent Shelf Registration is filed and (b) keep such Subsequent Shelf Registration (or another Subsequent Shelf Registration)
continuously effective until the end of the Effectiveness Period. Any such Subsequent Shelf Registration shall be a Registration Statement
on Form S-3 to the extent that the Company is eligible to use such form, and if the Company is a WKSI as of the filing date, such
Registration Statement shall be an Automatic Shelf Registration Statement. Otherwise, such Subsequent Shelf Registration shall be on
another appropriate form and shall provide for the registration of such Registrable Securities for resale by such Holders in accordance
with any reasonable method of distribution elected by the Holders.
Section 1.4. Supplements
and Amendments. The Company shall supplement and amend any Shelf Registration if required by the rules, regulations or instructions
applicable to the registration form used by the Company for such Shelf Registration if required by the Securities Act or as reasonably
requested by the Holders covered by such Shelf Registration.
Section 1.5. Subsequent
Holder Notice. If a Person becomes a Holder of Registrable Securities after a Shelf Registration becomes effective under the Securities
Act, the Company shall, as promptly as is reasonably practicable following delivery of written notice to the Company of such Person becoming
a Holder and requesting for its name to be included as a selling securityholder in the prospectus related to the Shelf Registration (a
“Subsequent Holder Notice”):
(a) if
required and permitted by applicable law, file with the Commission a supplement to the related prospectus or a post-effective amendment
to the Shelf Registration so that such Holder is named as a selling securityholder in the Shelf Registration and the related prospectus
in such a manner as to permit such Holder to deliver a prospectus to purchasers of the Registrable Securities in accordance with applicable
law;
2
(b) if,
pursuant to Section 1.5(a), the Company shall have filed a post-effective amendment to the Shelf Registration that is not
automatically effective, use its reasonable best efforts to cause such post-effective amendment to become effective under the Securities
Act as promptly as is reasonably practicable, but in any event by the date that is ninety (90) days after the date such post-effective
amendment is required by Section 1.5(a) to be filed; and
(c) notify
such Holder as promptly as is reasonably practicable after the effectiveness under the Securities Act of any post-effective amendment
filed pursuant to Section 1.5(a).
Section 1.6. Underwritten
Offering. The Holders of Registrable Securities may on up to three (3) occasions after the Resale Shelf Registration Statement
becomes effective deliver a written notice to the Company (with copy to the other Holders) specifying that the sale of some or all of
the Registrable Securities subject to the Shelf Registration is intended to be conducted through an underwritten offering, so long as
the anticipated gross proceeds of such underwritten offering is not less than twenty million dollars ($20,000,000) (unless the Holders
are proposing to sell all of their remaining Registrable Securities) (the “Underwritten Offering”). In the event of
an Underwritten Offering:
(a) The
Holders of a majority of the Registrable Securities participating in the Underwritten Offering shall select the managing underwriter
or underwriters to administer the Underwritten Offering; provided, that the choice of such managing underwriter or underwriters
shall be subject to the written consent of the Company, which is not to be unreasonably withheld, conditioned or delayed.
(b) Notwithstanding
any other provision of this Section 1.6, if the managing underwriter or underwriters of a proposed Underwritten Offering
advises the Board of Directors of the Company that in its or their opinion the number of Registrable Securities requested to be included
in such Underwritten Offering exceeds the number which can be sold in such Underwritten Offering in light of market conditions, the Registrable
Securities shall be included on a pro rata basis upon the number of securities that each Holder shall have requested to be included in
such offering. If any Holder disapproves of the terms of any such underwriting, such Holder may elect to withdraw therefrom by written
notice to the Company and the managing underwriter or underwriters.
Section 1.7. Take-Down
Notice. Subject to the other applicable provisions of this Agreement, at any time that any Shelf Registration Statement is effective,
if a Holder delivers a notice to the Company (a “Take-Down Notice”) stating that it intends to effect a sale or distribution
of all or part of its Registrable Securities included by it on any Shelf Registration Statement (a “Shelf Offering”)
and stating the number of Registrable Securities to be included in such Shelf Offering, then, subject to the other applicable provisions
of this Agreement, the Company shall amend or supplement the Shelf Registration Statement as may be necessary in order to enable such
Registrable Securities to be sold and distributed pursuant to the Shelf Offering.
3
ARTICLE II
Company Registration
Section 2.1. Notice
of Registration. If at any time or from time to time the Company shall determine to file a registration statement with respect to
an offering (or to make an underwritten public offering pursuant to a previously filed registration statement) of its Common Stock, whether
or not for its own account (other than (i) a registration statement on Form S-4, Form S-8 or any successor forms, (ii) a
registration relating solely to employment benefit plans, (iii) a registration the primary purpose of which is to register debt
securities, or (iv) a registration on any form that does not include substantially the same information as would be required to
be included in a registration statement covering the sale of Registrable Securities), the Company will:
(a) promptly
give to each Holder written notice thereof, which notice shall be given, to the extent reasonably practicable, no later than five (5) Business
Days prior to the filing or launch date (except in the case of an offering that is an “overnight offering”, in which case
such notice must be given no later than two (2) Business Days prior to the filing or launch date); and
(b) subject
to Section 2.2, include in such registration or underwritten offering (and any related qualification under blue sky laws
or other compliance) all the Registrable Securities specified in a written request or requests made within three (3) Business Days
after receipt of such written notice from the Company by any Holder (except in the case of an offering that is an “overnight offering”,
in which case such notice must be given no later than one (1) Business Day after receipt of such written notice from the Company).
Section 2.2. Underwriting.
The right of any Holder to registration pursuant to Section 1.6 or this Article II shall be conditioned upon
such Holder’s participation in such underwriting and the inclusion of Registrable Securities in the underwriting to the extent
provided herein. Each Holder proposing to distribute its securities through such underwriting shall (together with the Company and the
other holders distributing their securities through such underwriting) enter into and perform such Holder’s obligations under an
underwriting agreement with the managing underwriter selected for such underwriting by the Company or by the stockholders of the Company
who have the right to select the underwriters (such underwriting agreement to be in the form negotiated by the Company or such stockholders,
as the case may be). Notwithstanding any other provision of this Article II, if the managing underwriter or underwriters
of a proposed underwritten offering with respect to which Holders of Registrable Securities have exercised their piggyback registration
rights advise the Board of Directors of the Company that in its or their opinion the number of Registrable Securities requested to be
included in the offering thereby and all other securities proposed to be sold in the offering exceeds the number which can be sold in
such underwritten offering in light of market conditions, the Registrable Securities and such other securities to be included in such
underwritten offering shall be allocated, (a) first, (i) in the event such offering was initiated by the Company, up to the
total number of securities that the Company has requested to be included in such registration and (ii) in the event such offering
was initiated by the holders of securities (other than the Holders) who have exercised their demand registration rights, up to the total
number of securities that such holders of such securities have requested to be included in such offering, (b) second, and only if
all the securities referred to in clause (a) have been included, up to the total number of securities that the Holders and other
holders of securities that have contractual rights to be included in such registration have requested to be included in such offering
(pro rata based upon the number of securities that each of them shall have requested to be included in such offering) and (c) third,
and only if all the securities referred to in clause (b) have been included, all other securities proposed to be included in such
offering that, in the opinion of the managing underwriter or underwriters can be sold without having such adverse effect. If any Holder
disapproves of the terms of any such underwriting, such Holder may elect to withdraw therefrom by written notice to the Company and the
managing underwriter or underwriters. Any securities excluded or withdrawn from such underwriting shall be withdrawn from such registration.
4
Section 2.3. Right
to Terminate Registration. The Company or the holders of securities who have caused a registration statement to be filed as contemplated
by this Article II, as the case may be, shall have the right to have any registration initiated by it or them under this
Article II terminated or withdrawn prior to the effectiveness thereof, whether or not any Holder has elected to include securities
in such registration.
ARTICLE III
Additional Provisions Regarding Registration Rights
Section 3.1. Registration
Procedures. In the case of each registration effected by the Company pursuant to Article I or II, the Company
will keep each Holder participating in such Registration reasonably informed as to the status thereof and, at its expense, the Company
will:
(a) prepare
and file with the Commission a registration statement with respect to such securities in accordance with the applicable provisions of
this Agreement, provided that no Holder shall be identified as an underwriter in any such registration statement without the prior written
consent of such Holder;
(b) prepare
and file with the Commission such amendments, including post-effective amendments, and supplements to such registration statement and
the prospectus used in connection with such registration statement as may be necessary to comply with the provisions of the Securities
Act with respect to the disposition of all securities covered by such registration statement (including to permit the intended method
of distribution thereof) and as may be necessary to keep the registration statement continuously effective for the period set forth in
this Agreement;
(c) furnish
to the Holders participating in such registration and to their legal counsel copies of the registration statement proposed to be filed,
and provide such Holders and their legal counsel the reasonable opportunity to review and comment on such registration statement;
(d) furnish
to the Holders participating in such registration and to the underwriters of the securities being registered such reasonable number of
copies of the registration statement, preliminary prospectus and final prospectus as the such underwriters may reasonably request in
order to facilitate the public offering of such securities;
5
(e) use
reasonable best efforts to notify each Holder of Registrable Securities covered by such registration statement at any time when a prospectus
relating thereto is required to be delivered under the Securities Act of the Company’s knowledge of the happening of any event
as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material
fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete
in the light of the circumstances then existing, and, subject to Section 3.1(n), at the request of any such Holder, prepare
promptly and furnish to such Holder a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary
so that, as thereafter delivered to the purchaser of such shares, such prospectus shall not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete
in the light of the circumstances then existing;
(f) use
reasonable best efforts to register and qualify the securities covered by such registration statement under such other securities or
blue sky laws of such jurisdictions as shall be reasonably requested by the Holders; provided, however, that the Company
shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service
of process in any such states or jurisdictions;
(g) in
the event that the Registrable Securities are being offered in an underwritten public offering, enter into and perform its obligations
under an underwriting agreement on customary terms and in accordance with the applicable provisions of this Agreement;
(h) in
connection with an underwritten public offering, cause its officers to use their reasonable best efforts to support the marketing of
the Registrable Securities covered by such offering (including participation in “road shows” or other similar marketing efforts);
(i) if
such securities are being sold through underwriters, (i) furnish, on the date that such Registrable Securities are delivered to
the underwriters, an opinion, dated as of such date, of the legal counsel representing the Company for the purposes of such registration,
in form and substance as is customarily given to underwriters in an underwritten public offering, addressed to the underwriters, if any,
and a “negative assurance letter,” dated as of such date, of the legal counsel representing the Company for purposes of such
registration, in form and substance as is customarily given to underwriters and (ii) furnish, on the date of the underwriting agreement
and on the date that the Registrable Securities are delivered to the underwriters, a letter dated as of such date, from the independent
certified public accountants of the Company, in form and substance as is customarily given by independent certified public accountants
to underwriters in an underwritten public offering, addressed to the underwriters;
(j) use
reasonable best efforts to list the Registrable Securities covered by such registration statement with any securities exchange on which
the Common Stock is then listed;
6
(k) in
connection with a customary due diligence review, make available for inspection by the Holders, any underwriter participating in any
such disposition of Registrable Securities, if any, and any counsel or accountants retained by the Holders or underwriter (collectively,
the “Offering Persons”), all financial and other records, pertinent corporate documents and properties of the Company
and its subsidiaries, and cause the officers, directors and employees of the Company and its subsidiaries to supply all information and
participate in customary due diligence sessions in each case reasonably requested by any such representative, underwriter, counsel or
accountant in connection with such registration statement, subject to customary confidentiality obligations to be agreed with the Offering
Persons;
(l) cooperate
with the Holders and each underwriter or agent participating in the disposition of Registrable Securities and their respective counsel
in connection with any filings required to be made with FINRA;
(m) as
promptly as is reasonably practicable notify the Holders (i) when the prospectus or any prospectus supplement or post-effective
amendment has been filed and, with respect to such registration statement or any post-effective amendment, when the same has become effective,
(ii) of any request by the Commission or other federal or state governmental authority for amendments or supplements to such registration
statement or related prospectus or to amend or to supplement such prospectus or for additional information, (iii) of the issuance
by the Commission of any stop order suspending the effectiveness of such registration statement or the initiation of any proceedings
for such purpose, (iv) if at any time the Company has reason to believe that the representations and warranties of the Company or
any of its subsidiaries contained in any agreement (including any underwriting agreement contemplated by Section 3.1(g) above)
cease to be true and correct or (v) of the receipt by the Company of any notification with respect to the suspension of the qualification
or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of
any proceeding for such purpose;
(n) notwithstanding
any other provision of this Agreement, the Company shall not be obligated to effect any Underwritten Offering or Shelf Offering within
thirty (30) days prior to the Company’s good faith estimate of the date of filing of a registration statement for an underwritten
public offering of the Company’s securities and for such a period of time after such a filing as the managing underwriters request,
provided that such period shall not exceed ninety (90) days from the closing date of any such underwritten public offering and provided
further that, for the avoidance of doubt, the Holders shall be entitled to the rights set forth in Section 2.1 with respect
to any such underwritten offering; and
(o) notwithstanding
any other provision of this Agreement, if the Board of Directors of the Company has determined in good faith that the disclosure necessary
for continued use of the prospectus and registration statement by the Holders could be materially detrimental to the Company, the Company
shall have the right not to file or not to cause the effectiveness of any registration covering any Registrable Securities and to suspend
the use of the prospectus and the registration statement covering any Registrable Security for such period of time as its use would be
materially detrimental to the Company by delivering written notice of such suspension to all Holders listed on the Company’s records;
provided, however, that in any 12-month period the Company may exercise the right to such suspension not more than twice.
From and after the date of a notice of suspension under this Section 3.1(o), each Holder agrees not to use the prospectus
or registration statement until the earlier of (i) notice from the Company that such suspension has been lifted or (ii) the
day following the sixtieth (60th) day of suspension, at which time the Company shall be required to lift such suspension.
7
Section 3.2. Limitation
on Subsequent Registration Rights. From and after the Effective Time during the term of this Agreement, the Company shall not, without
the prior written consent of the Holders of a majority of the Registrable Securities, enter into any agreement with any holder or prospective
holder of any securities of the Company that would (i) allow such holder or prospective holder to include such securities in any
registration unless, under the terms of such agreement, such holder or prospective holder may include such securities in any such registration
only to the extent that the inclusion of such securities will not reduce the number of the Registrable Securities of the Holders that
are included; (ii) allow such holder or prospective holder to initiate a demand for registration of any securities held by such
holder or prospective holder; or (iii) otherwise conflict with the rights granted to the Holders herein.
Section 3.3. Expenses
of Registration. All Registration Expenses incurred in connection with any registration pursuant to Article I or II
shall be borne by the Company. All Selling Expenses relating to securities registered on behalf of the Holders shall be borne by the
Holders of the registered securities included in such registration.
Section 3.4. Information
by Holders. The Holder or Holders of Registrable Securities included in any registration shall furnish to the Company such information
regarding such Holder or Holders and their respective Affiliates, the Registrable Securities held by them and the distribution proposed
by such Holder or Holders and their respective Affiliates as the Company may reasonably request in writing and as shall be required in
connection with any registration, qualification or compliance referred to in this Agreement. It is understood and agreed that the obligations
of the Company under Article I or II are conditioned on the timely provisions of the foregoing information by such
Holder or Holders and, without limitation of the foregoing, will be conditioned on compliance by such Holder or Holders with the following:
(a) such
Holder or Holders will, and will cause their respective Affiliates to, cooperate with the Company in connection with the preparation
of the applicable registration statement, and for so long as the Company is obligated to keep such registration statement effective,
such Holder or Holders will and will cause their respective Affiliates to, provide to the Company, in writing and in a timely manner,
for use in such registration statement (and expressly identified in writing as such), all information regarding themselves and their
respective Affiliates and such other information as may be required by applicable law to enable the Company to prepare such registration
statement and the related prospectus covering the applicable Registrable Securities owned by such Holder or Holders and to maintain the
currency and effectiveness thereof;
(b) during
such time as such Holder or Holders and their respective Affiliates may be engaged in a distribution of the Registrable Securities, such
Holder or Holders will, and they will cause their respective Affiliates to, comply with all laws applicable to such distribution, including
Regulation M promulgated under the Exchange Act, and, to the extent required by such laws, will, and will cause their respective Affiliates
to, among other things: (i) not engage in any stabilization activity in connection with the securities of the Company in contravention
of such laws; (ii) distribute the Registrable Securities acquired by it solely in the manner described in the applicable registration
statement; and (iii) if required by applicable law, cause to be furnished to each agent or broker-dealer to or through whom such
Registrable Securities may be offered, or to the offeree if an offer is made directly by such Holder or Holders or their respective Affiliates,
such copies of the applicable prospectus (as amended and supplemented to such date) and documents incorporated by reference therein as
may be required by such agent, broker-dealer or offeree;
8
(c) such
Holder or Holders shall, and they shall cause their respective Affiliates to, permit the Company and its representatives and agents to
examine such documents and records and will supply in a timely manner any information as they may be reasonably request to provide in
connection with the offering or other distribution of Registrable Securities by such Holder or Holders; and
(d) on
receipt of written notice from the Company of the happening of any of the events specified in Section 3.1(m) or Section 3.1(o),
or that requires the suspension by such Holder or Holders and their respective Affiliates of the distribution of any of the Registrable
Securities owned by such Holder or Holders, then such Holders shall, and they shall cause their respective Affiliates to, cease offering
or distributing the Registrable Securities owned by such Holder or Holders until the offering and distribution of the Registrable Securities
owned by such Holder or Holders may recommence in accordance with the terms hereof and applicable law.
Section 3.5. Rule 144
Reporting. With a view to making available the benefits of Rule 144 to the Holders, the Company agrees that, for so long as
a Holder owns Registrable Securities, the Company will use reasonable best efforts to:
(a) make
and keep public information available, as those terms are understood and defined in Rule 144;
(b) file
with the Commission in a timely manner all reports and other documents required of the Company under the Exchange Act; and
(c) so
long as a Holder owns any Restricted Securities, furnish to the Holder forthwith upon written request a written statement by the Company
as to its compliance with the reporting requirements of the Exchange Act.
9
ARTICLE IV
Indemnification
Section 4.1. Indemnification
by Company. To the extent permitted by applicable law, the Company will, with respect to any Registrable Securities as to which registration
or qualification or compliance under applicable “blue sky” laws has been effected pursuant to this Agreement, indemnify each
Holder, each Holder’s current and former officers, directors, partners and members, and each Person controlling such Holder within
the meaning of Section 15 of the Securities Act, and each underwriter thereof, if any, and each Person who controls any such underwriter
within the meaning of Section 15 of the Securities Act (collectively, the “Company Indemnified Parties”), against
all expenses, claims, losses, damages and liabilities, joint or several, (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in any registration statement, prospectus, preliminary prospectus,
offering circular or other document, or any amendment or supplement thereto incident to any such registration, qualification or compliance
or based on any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they were made, not misleading, or any violation by the Company of any rule or
regulation promulgated under the Securities Act, Exchange Act or state securities laws applicable to the Company in connection with any
such registration, and the Company will reimburse each of the Company Indemnified Parties for any reasonable legal and any other expenses
reasonably incurred in connection with investigating, preparing or defending any such claim, loss, damage, liability or action, as such
expenses are incurred. The indemnity agreement contained in this Section 4.1 shall not apply to amounts paid in settlement
of any loss, claim, damage, liability or action if such settlement is effected without the prior written consent of the Company (which
consent shall not be unreasonably withheld or delayed), nor shall the Company be liable to a Holder in any such case for any such loss,
claim, damage, liability or action (a) to the extent that it arises out of or is based upon a violation or alleged violation of
any state or federal law (including any claim arising out of or based on any untrue statement or alleged untrue statement or omission
or alleged omission in the registration statement or prospectus) which occurs in reliance upon and in conformity with written information
furnished expressly for use in connection with such registration by or on behalf of any Holder or (b) in the case of a sale directly
by a Holder of Registrable Securities (including a sale of such Registrable Securities through any underwriter retained by such Holder
engaging in a distribution solely on behalf of such Holder), such untrue statement or alleged untrue statement or omission or alleged
omission was corrected in a final or amended prospectus, and such Holder failed to deliver a copy of the final or amended prospectus
at or prior to the confirmation of the sale of the Registrable Securities to the Person asserting any such loss, claim, damage or liability
in any case in which such delivery is required by the Securities Act.
Section 4.2. Indemnification
by Holders. To the extent permitted by applicable law, each Holder will, if identified as a selling stockholder as to which such
registration or qualification or compliance under applicable “blue sky” laws is being effected, indemnify, severally and
not jointly, the Company, each of its current and former directors, officers, partners and members, and each Person who controls the
Company within the meaning of Section 15 of the Securities Act (collectively, the “Holder Indemnified Parties”),
against all expenses, claims, losses, damages and liabilities (or actions in respect thereof) arising out of or based on any untrue statement
(or alleged untrue statement) of a material fact contained in any registration statement, prospectus, preliminary prospectus, offering
circular or other document, or any amendment or supplement thereto incident to any such registration, qualification or compliance or
based on any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made, not misleading, or any violation by such Holder of any rule or regulation
promulgated under the Securities Act, Exchange Act or state securities law applicable to such Holder, and will reimburse each of the
Holder Indemnified Parties for any reasonable legal or any other expenses reasonably incurred in connection with investigating, preparing
or defending any such claim, loss, damage, liability or action, as such expenses are incurred, in each case to the extent, but only to
the extent, that such untrue statement (or alleged untrue statement) or omission (or alleged omission) is made in such registration statement,
prospectus, offering circular or other document in reliance upon and in conformity with written information furnished to the Company
by such Holder and stated to be specifically for use therein, provided, however, that in no event shall any indemnity
under this Section 4.2 payable by a Holder exceed the amount by which the net proceeds actually received by such Holder from
the sale of Registrable Securities included in such registration exceeds the amount of any other losses, expenses, settlements, damages,
claims and liabilities that such Holder has been required to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission or violation. The indemnity agreement contained in this Section 4.2 shall not apply to amounts paid in settlement
of any loss, claim, damage, liability or action if such settlement is effected without the prior written consent of the applicable Holder
(which consent shall not be unreasonably withheld or delayed), nor shall the Holder be liable for any such loss, claim, damage, liability
or action where such untrue statement or alleged untrue statement or omission or alleged omission was corrected in a final or amended
prospectus, and the Company or the underwriters failed to deliver a copy of the final or amended prospectus at or prior to the confirmation
of the sale of the Registrable Securities to the Person asserting any such loss, claim, damage or liability in any case in which such
delivery is required by the Securities Act.
10
Section 4.3. Notification.
Each party entitled to indemnification under this Article IV (the “Indemnified Party”) shall give written
notice to the party required to provide indemnification (the “Indemnifying Party”) promptly after such Indemnified
Party has actual knowledge of any claim as to which indemnity may be sought, and shall permit the Indemnifying Party to assume the defense
of any such claim or any litigation resulting therefrom, provided, however, that counsel for the Indemnifying Party, who
shall conduct the defense of such claim or litigation, shall be approved by the Indemnified Party (whose approval shall not unreasonably
be withheld or delayed), and the Indemnified Party may participate in such defense at such party’s expense; provided, further,
however, that an Indemnified Party (together with all other Indemnified Parties) shall have the right to retain one (1) separate
counsel, with the reasonable fees and expenses to be paid by the Indemnifying Party, if representation of such Indemnified Party by the
counsel retained by the Indemnifying Party would be reasonably inappropriate due to conflicting interests between such Indemnified Party
and any other party represented by such counsel in such proceeding. If such defense is assumed, the indemnifying party shall not be subject
to any liability for any settlement made by the indemnified party without its consent (but such consent shall not be unreasonably withheld,
conditioned or delayed). The failure of any Indemnified Party to give notice as provided herein shall relieve the Indemnifying Party
of its obligations under this Article IV, only to the extent that, the failure to give such notice is materially prejudicial
or harmful to an Indemnifying Party’s ability to defend such action. No Indemnifying Party, in the defense of any such claim or
litigation, shall, except with the prior written consent of each Indemnified Party (which consent shall not be unreasonably withheld
or delayed), consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect to such claim or litigation.
The indemnity agreements contained in this Article IV shall not apply to amounts paid in settlement of any loss, claim, damage,
liability or action if such settlement is effected without the prior written consent of the Indemnifying Party, which consent shall not
be unreasonably withheld or delayed. The indemnification set forth in this Article IV shall be in addition to any other indemnification
rights or agreements that an Indemnified Party may have.
11
Section 4.4. Contribution.
If the indemnification provided for in this Article IV is held by a court of competent jurisdiction to be unavailable to
an Indemnified Party, other than pursuant to its terms, with respect to any claim, loss, damage, liability or action referred to therein,
then, subject to the limitations contained in Article IV, the Indemnifying Party, in lieu of indemnifying such Indemnified
Party hereunder, shall contribute to the amount paid or payable by such Indemnified Party as a result of such claim, loss, damage, liability
or action in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party on the one hand and the Indemnified
Party on the other in connection with the actions that resulted in such claims, loss, damage, liability or action, as well as any other
relevant equitable considerations. The relative fault of the Indemnifying Party and of the Indemnified Party shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact related
to information supplied by the Indemnifying Party or by the Indemnified Party and the parties’ relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission. The Company and the Holders agree that it would not
be just and equitable if contribution pursuant to this Section 4.4 were based solely upon the number of entities from whom
contribution was requested or by any other method of allocation which does not take account of the equitable considerations referred
to above in this Section 4.4. In no event shall any Holder’s contribution obligation under this Section 4.4
exceed the amount by which the net proceeds actually received by such Holder from the sale of Registrable Securities included in such
registration exceeds the amount of any other losses, expenses, settlements, damages, claims and liabilities that such Holder has been
required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission or violation. No Person guilty of
fraudulent misrepresentation (within the meaning of the Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.
ARTICLE V
Termination of Registration Rights; ASSIGNMENT
Section 5.1. Effective
Time; Termination of Registration Rights. This Agreement shall become effective automatically as of the Closing (the “Effective
Time”) and shall continue in effect from and after the Effective Time until, and shall terminate automatically, with respect
to any particular Holder, upon the date upon which such Holder no longer holds any Registrable Securities. For the avoidance of doubt,
in the event that the Securities Purchase Agreement is terminated in accordance with its terms prior to the Effective Time, this Agreement
shall be terminated automatically with no further action required on the part of the parties hereto, and shall thereafter be deemed to
be void and of no effect.
Section 5.2. Assignment.
The rights under this Agreement may be assigned (but only with all related obligations) by a Holder to any Permitted Transferee in connection
with any permitted transfer pursuant to Section 4.3 of the Exchange Agreement, assignment or other conveyance of Registrable
Securities (other than a transfer pursuant to a registration statement or under Rule 144 promulgated under the Securities Act);
provided, however, that (x) the Company is, within a reasonable time after such transfer, furnished with written notice
of the name and address of such transferee and the Registrable Securities with respect to which such rights are being transferred; and
(y) such transferee agrees in a written instrument delivered to the Company to be bound by and subject to the terms and conditions
of this Agreement.
12
ARTICLE VI
Miscellaneous.
Section 6.1. Counterparts.
This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement, and will become
effective when one or more counterparts have been signed by a party and delivered to the other parties. Copies of executed counterparts
transmitted by telecopy, telefax or other electronic transmission service shall be considered original executed counterparts for purposes
of this Section 6.1, provided that receipt of copies of such counterparts is confirmed.
Section 6.2. Governing
Law; Waiver of Jury Trial.
(a) This
Agreement shall be governed by, and construed in accordance with, the laws of the state of Delaware, without giving effect to any choice
of law or conflict of law rules or provisions (whether of the state of Delaware or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the state of Delaware.
(b) Any
dispute relating hereto shall be heard first in the Delaware Court of Chancery, and, if applicable, in any state or federal court located
in of Delaware in which appeal from the Court of Chancery may validly be taken under the laws of the State of Delaware (each a “Chosen
Court” and collectively, the “Chosen Courts”), and the parties agree to the exclusive jurisdiction and venue
of the Chosen Courts. Such Persons further agree that any proceeding seeking to enforce any provision of, or based on any matter arising
out of or in connection with, this Agreement or the transactions contemplated hereby or by any matters related to the foregoing (the
“Applicable Matters”) shall be brought exclusively in a Chosen Court, and that any proceeding arising out of this
Agreement or any other Applicable Matter shall be deemed to have arisen from a transaction of business in the state of Delaware, and
each of the foregoing Persons hereby irrevocably consents to the jurisdiction of such Chosen Courts in any such proceeding and irrevocably
and unconditionally waives, to the fullest extent permitted by law, any objection that such Person may now or hereafter have to the laying
of the venue of any such suit, action or proceeding in any such Chosen Court or that any such proceeding brought in any such Chosen Court
has been brought in an inconvenient forum.
(c) Such
Persons further covenant not to bring a proceeding with respect to the Applicable Matters (or that could affect any Applicable Matter)
other than in such Chosen Court and not to challenge or enforce in another jurisdiction a judgment of such Chosen Court.
(d) Process
in any such proceeding may be served on any Person with respect to such Applicable Matters anywhere in the world, whether within or without
the jurisdiction of any such Chosen Court. Without limiting the foregoing, each such Person agrees that service of process on such party
as provided in Section 6.5 shall be deemed effective service of process on such Person.
13
(e) Waiver
of Jury Trial. EACH PARTY HERETO, FOR ITSELF AND ITS AFFILIATES, HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT OR OTHER PROCEEDING (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO THE ACTIONS OF THE PARTIES HERETO OR THEIR RESPECTIVE AFFILIATES PURSUANT TO THIS AGREEMENT OR IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF.
Section 6.3. Entire
Agreement; No Third Party Beneficiary. This Agreement, the Series B-4 Certificate of Designations (as defined in the Exchange
Agreement), the applicable Voting Agreement (as defined in the Exchange Agreement) and the Exchange Agreement contain the entire agreement
by and among the parties with respect to the subject matter hereof and all prior negotiations, writings and understandings relating to
the subject matter of this Agreement. Except as provided in Article IV, this Agreement is not intended to confer upon any
Person not a party hereto (or their successors and permitted assigns) any rights or remedies hereunder.
Section 6.4. Expenses.
Except as provided in Section 3.3, all fees, costs and expenses incurred in connection with this Agreement and the transactions
contemplated hereby, including accounting and legal fees shall be paid by the party incurring such expenses.
Section 6.5. Notices.
All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed to have been duly
given or made as follows: (a) if sent by registered or certified mail in the United States return receipt requested, upon receipt;
(b) if sent by nationally recognized overnight air courier, one (1) Business Day after mailing; (c) if sent by e-mail
transmission, when transmitted and receipt is confirmed; and (d) if otherwise actually personally delivered, when delivered, provided,
that such notices, requests, demands and other communications are delivered to the address set forth below, or to such other address
as any party shall provide by like notice to the other parties to this Agreement:
If to the Company,
to:
Comtech Telecommunications Corp.
305 N 54th Street
Chandler, Arizona 85226
E-mail: don.walther@comtech.com
Attention: Don Walther
with a copy (which
shall not constitute notice) to:
Norton Rose Fulbright US LLP
1301 Avenue of the Americas
New York, NY 10019-6064
E-mail: steven.suzzan@nortonrosefulbright.com
Attention: Steven I. Suzzan
14
If to the Investors, to the addresses set forth on the signature
pages hereto, with a copy (which shall not constitute notice) to:
Counsel to the Magnetar Investors:
Willkie Farr & Gallagher LLP
787 Seventh Avenue
New York, NY 10019-6099
E-mail: ehalperin@willkie.com; sewen@willkie.com
Attention: Eric Halperin; Sean Ewen
Counsel to the White Hat
Investors:
McDermott Will & Schulte LLP
919 Third Avenue
New York, NY 10022
E-mail: eklein@mcdermottlaw.com
Attention: Eleazer Klein
Section 6.6. Successors
and Assigns. This Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors and
permitted assigns. Except as provided in Section 5.2, no assignment of this Agreement or of any rights or obligations hereunder
may be made by any party hereto without the prior written consent of the other parties hereto. Any purported assignment or delegation
in violation of this Agreement shall be null and void ab initio.
Section 6.7. Headings.
The Section, Article and other headings contained in this Agreement are inserted for convenience of reference only and will not
affect the meaning or interpretation of this Agreement.
Section 6.8. Amendments
and Waivers. This Agreement may not be modified or amended except by an instrument or instruments in writing signed by the Company
and the Holders of a majority of the Registrable Securities outstanding at the time of such amendment. Any party hereto may, only by
an instrument in writing, waive compliance by any other party or parties hereto with any term or provision hereof on the part of such
other party or parties hereto to be performed or complied with. No failure or delay of any party in exercising any right or remedy hereunder
shall operate as a waiver thereof, nor will any single or partial exercise of any right or power, or any abandonment or discontinuance
of steps to enforce such right or power, preclude any other or further exercise thereof or the exercise of any other right or power.
The waiver by any party hereto of a breach of any term or provision hereof shall not be construed as a waiver of any subsequent breach.
The rights and remedies of the parties hereunder are cumulative and are not exclusive of any rights or remedies that they would otherwise
have hereunder.
15
Section 6.9. Interpretation;
Absence of Presumption.
(a) For
the purposes hereof: (i) words in the singular shall be held to include the plural and vice versa and words of one gender shall
be held to include the other gender as the context requires; (ii) the terms “hereof,” “herein,” and “herewith”
and words of similar import shall, unless otherwise stated, be construed to refer to this Agreement as a whole and not to any particular
provision of this Agreement, and Section and paragraph references are to the Sections and paragraphs in this Agreement unless otherwise
specified; (iii) the word “including” and words of similar import when used in this Agreement shall mean “including,
without limitation,” unless the context otherwise requires or unless otherwise specified; and (iv) the word “or”
shall not be exclusive.
(b) With
regard to each and every term and condition of this Agreement, the parties hereto understand and agree that the same have or has been
mutually negotiated, prepared and drafted, and if at any time the parties hereto desire or are required to interpret or construe any
such term or condition, no consideration will be given to the issue of which party hereto actually prepared, drafted or requested any
term or condition of this Agreement.
Section 6.10. Severability.
Any provision hereof that is held to be invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, shall
be ineffective only to the extent of such invalidity, illegality or unenforceability, without affecting in any way the remaining provisions
hereof, provided, however, that the parties will attempt in good faith to reform this Agreement in a manner consistent
with the intent of any such ineffective provision for the purpose of carrying out such intent.
(The next page is the signature page)
16
IN WITNESS WHEREOF, the parties have executed
this Registration Rights Agreement as of the date first above written.
COMPANY:
COMTECH TELECOMMUNICATIONS CORP.
By:
/s/
Michael A. Bondi
Name: Michael A. Bondi
Title: Chief Financial Officer
[Signature Page to
Registration Rights Agreement]
INVESTORS:
White
Hat Strategic Partners LP
By: White Hat SP GP LLC, its General
Partner
By:
/s/ Mark Quinlan
Name: Mark Quinlan
Title: Managing Member
White
Hat Strategic Partners II LP
By: White Hat SP GP II LLC, its General
Partner
By:
/s/ Mark Quinlan
Name: Mark Quinlan
Title: Managing Member
[Signature Page to Registration Rights
Agreement]
MAGNETAR STRUCTURED CREDIT FUND, LP
By: Magnetar Financial LLC, its general partner
By:
/s/ Lavonne Harris
Name: Lavonne Harris
Title: Chief Financial Officer – Funds
MAGNETAR LONGHORN FUND LP
By: Magnetar Financial LLC, its investment manager
By:
/s/ Lavonne Harris
Name: Lavonne Harris
Title: Chief Financial Officer – Funds
PURPOSE ALTERNATIVE CREDIT FUND - F LLC
By: Magnetar Financial LLC, its investment manager
By:
/s/ Lavonne Harris
Name: Lavonne Harris
Title: Chief Financial Officer – Funds
PURPOSE ALTERNATIVE CREDIT FUND - T LLC
By: Magnetar Financial LLC, its manager
By:
/s/ Lavonne Harris
Name: Lavonne Harris
Title: Chief Financial Officer – Funds
[Signature Page to
Registration Rights Agreement]
MAGNETAR LAKE CREDIT FUND LLC
By: Magnetar Financial LLC, its manager
By:
/s/ Lavonne Harris
Name: Lavonne Harris
Title: Chief Financial Officer – Funds
MAGNETAR ALPHA STAR FUND LLC
By: Magnetar Financial LLC, its manager
By:
/s/ Lavonne Harris
Name: Lavonne Harris
Title: Chief Financial Officer – Funds
MAGNETAR CAPITAL FUND II LP
By: Magnetar Financial LLC, its investment manager
By:
/s/ Lavonne Harris
Name: Lavonne Harris
Title: Chief Financial Officer – Funds
[Signature Page to
Registration Rights Agreement]
EXHIBIT A
DEFINED TERMS
1. The following capitalized terms have the
meanings indicated:
“Affiliate”
of any Person means any Person, directly or indirectly, controlling, controlled by or under common control with such Person.
“Automatic Shelf
Registration Statement” means an “automatic shelf registration statement” as defined under Rule 405.
“Business Day”
means any day other than a Saturday, a Sunday or any day on which the Federal Reserve Bank of New York is authorized or required by law
or executive order to close or be closed.
“Closing”
has the meaning given to such term in the Exchange Agreement.
“Commission”
means the Securities and Exchange Commission.
“Common Stock”
means the Company’s common stock, par value $0.10 per share.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended, or any similar successor federal statute, and the rules and regulations of
the Commission thereunder, all as the same shall be in effect from time to time.
“Holder”
means (a) any Investor holding Registrable Securities and (b) any transferee to which the rights under this Agreement have
been transferred in accordance with Section 5.2.
“Permitted Transferee”
has the meaning given to such term in the Exchange Agreement.
“Person”
means an individual, corporation, partnership, limited liability company, joint venture, association, trust, unincorporated organization,
other legal entity, or any government or governmental agency or authority.
“register”,
“registered” and “registration” refer to a registration effected by preparing and filing a registration
statement in compliance with the Securities Act, and the declaration or ordering of the effectiveness of such registration statement.
“Registration Expenses”
means (a) all expenses incurred by the Company in complying with Articles I and II, including, without limitation,
all registration, qualification, listing and filing fees, printing expenses, escrow fees, fees and disbursements of counsel for the Company,
blue sky fees and expenses, and the expense of any special audits incident to or required by any such registration; and (b) the
reasonable fees and expenses of any one counsel to the Holders (and one local counsel, if necessary); provided, however,
that, in the case of this clause (b), such fees and expenses shall not exceed $50,000 with respect to any particular registration pursuant
to Article I or II.
“Registrable
Securities” means (a) any shares of Common Stock issued or issuable upon conversion of any shares of Series B-4
Preferred Stock without regard to any limitation on conversion to be set forth in the Series B-4 Certificate of Designations, (b) any
other shares of Common Stock issued in respect of preemptive rights of the Holders or acquired by the Holders in the open market or otherwise,
(c) any shares of Common Stock issued or issuable upon the exercise of any Warrants without regard to any limitation on exercise
set forth in the Warrants and (d) any Common Stock or other securities issued in respect of the securities described in clauses
(a) through (c) above or this clause (d) upon any stock split, stock dividend, recapitalization, reclassification, merger,
consolidation or similar event; provided, however, that the securities described in clauses (a) through (c) and
this clause (d) above shall only be treated as Registrable Securities until the earliest of: (i) the date on which such security
has been registered under the Securities Act and disposed of in accordance with an effective Registration Statement relating thereto;
(ii) the date on which such security has been sold pursuant to Rule 144 (or another transaction that constitutes a sale under
the Securities Act) and the security is no longer a Restricted Security; (iii) following any date that the Holders collectively
own or have a right to receive (by conversion, acquisition, exercise or otherwise) Registrable Securities having a value of less than
$20,000,000 (based on then current market price), the date on which the Holder of the securities is able to immediately sell such securities
under Rule 144 without any restrictions or limitation on transfer (and without the requirement for the Company to be in compliance
with the current public information required under subsection (c)(1) of Rule 144), as reasonably determined by the Holder;
and (iv) with respect to any such security, the date on which such security and the instrument that may result in the issuance of
such security shall have ceased to be outstanding.
“Restricted Securities”
means any Common Stock required to bear the legend set forth in Section 4.3(a) of the Exchange Agreement.
“Rule 144”
means Rule 144 promulgated under the Securities Act and any successor provision.
“Rule 405”
means Rule 405 promulgated under the Securities Act and any successor provision.
“Securities Act”
means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder or any similar federal statute
and the rules and regulations of the Commission thereunder, all as the same shall be in effect at the time.
“Securities Purchase
Agreement” has the meaning given to such term in the Exchange Agreement.
“Selling Expenses”
means all underwriting discounts, selling commissions and stock transfer taxes applicable to the securities registered by the Holders.
“Series B-3
Preferred Stock” means the Company’s Series B-3 Convertible Preferred Stock, par value $0.10 per share.
“Shelf Registration”
means the Resale Shelf Registration or a Subsequent Shelf Registration, as applicable.
“WKSI”
means a “well known seasoned issuer” as defined under Rule 405.
2. The following terms are defined in the
Sections of the Agreement indicated:
INDEX OF TERMS
Term
Section
Agreement
Preamble
Applicable
Matters
Section 6.2(b)
Chosen
Court
Section 6.2(b)
Company
Preamble
Company
Indemnified Parties
Section 4.1
Effective
Time
Section 5.1
Effectiveness
Period
Section 1.2
Exchange
Agreement
Recitals
Holder
Indemnified Parties
Section 4.2
Indemnified
Party
Section 4.3
Indemnifying
Party
Section 4.3
Investor
Preamble
Investors
Preamble
Resale
Shelf Registration
Section 1.1
Resale
Shelf Registration Statement
Section 1.1
Series B-4
Preferred Stock
Recitals
Subsequent
Holder Notice
Section 1.5
Subsequent
Shelf Registration
Section 1.3
Underwritten
Offering
Section 1.6
Warrants
Recitals
EXHIBIT B
InvestorS
Magnetar Structured Credit Fund, LP
Magnetar Longhorn Fund LP
Purpose Alternative Credit Fund - F LLC
Purpose Alternative Credit Fund - T LLC
Magnetar Lake Credit Fund LLC
Magnetar Alpha Star Fund LLC
Magnetar Capital Fund II LP
White Hat Strategic Partners LP
White Hat Strategic Partners II LP
EX-99.1 — EXHIBIT 99.1
EX-99.1
Filename: tm2617923d1_ex99-1.htm · Sequence: 12
Exhibit 99.1
Comtech Announces Definitive Agreement to Sell
Most of Its
Satellite and Space Communications Business
to Gilat
Comtech Also Announces Amendments to Existing
Credit Facilities and
Convertible Preferred Stock Agreements to Strengthen
Financial Flexibility
Transactions Represent a Successful Outcome
of the Previously Announced Strategic Review Processes and Underscore the Company's Significantly Improved Financial and Operating Performance
Company Positioned to be a Public Safety Technology
Leader
with Strong Recurring Revenue, Long-Term Growth
Opportunities and Improving Margin Profile
CHANDLER, Ariz. – June 15, 2026 –
Comtech Telecommunications Corp. (NASDAQ: CMTL) (“Comtech” or the “Company”), a global communications technology
leader, today announced that it has entered into a definitive agreement (the “Transaction”) to sell most of its Satellite
and Space Communications (“S&S”) segment to Gilat Satellite Networks Ltd. (“Gilat”) (NASDAQ:
GILT, TASE: GILT), and become a focused public safety technology company. The Transaction was unanimously approved by the boards
of directors of both Comtech and Gilat.
Under the terms of the agreement, Gilat will acquire
most of the S&S segment for $157.5 million, of which $10.0 million is being paid today. In addition, Comtech will retain certain cyber-focused
assets currently within the S&S segment as well as rights to certain S&S accounts receivable collections. The Transaction is subject
to customary closing conditions, including regulatory approvals. The Company currently expects the Transaction to close in calendar Q4
2026, subject to the timing of regulatory review.
The Company also announced amendments to its existing
credit facilities and agreed to replace the existing series of convertible preferred stock with a new series of convertible preferred
stock. These agreements not only provide the necessary consents to the Transaction, but also deliver immediate improvements that enhance
the Company's financial flexibility. Comtech anticipates that upon closing the Transaction, the Company will use the net cash proceeds
to reduce debt and recapitalize the business to provide a stronger and healthier financial position for the remaining Allerium business.
“The sale of most of the S&S segment,
together with the agreements we have reached with our lenders and preferred stockholders, represent a significant milestone in Comtech’s
transformation and reflect the successful execution of our strategy,” said Ken Traub, Chairman, President and CEO. “I would
like to thank and compliment Daniel Gizinski and the entire S&S leadership and operational teams for the successful turnaround and
improved positioning of this business. I would also like to thank and compliment our entire organization for their dedication to the Company’s
transformative initiatives, and specifically Mike Bondi and the finance team, Don Walther and the legal team and Jennie Kerr and the people
operations team. This organization has done an incredible job over the past several quarters in executing on our transformation to improve
profitability, cash flow and the capital structure, streamline our operations and sharpen our strategic focus on building Allerium's public
safety business. Finally, I would like to thank all of our partners and stakeholders for their patience and support in the execution of
our plans to build long-term sustainable value for the Company and our shareholders.”
Mr. Traub continued, “Over the next few
months as we await regulatory approval, we will be executing a transition plan to align the organization to be purpose-built to support
Allerium's growth as a leader in next-generation public safety technologies and services. Under Jeff Robertson's leadership, Allerium
has been enhancing its mission-critical solutions for public safety agencies and mobile network operators through a growing portfolio
of software, cloud-native, data-driven and AI-enabled capabilities. Allerium sits at the center of NG911, call handling, location-based
services, and real-time data critical to the coordination of emergency response. With an improved capital structure, streamlied organization
and a clear strategic focus, Allerium is poised to capitalize on its leadership in the public safety market.”
Upon closing, the Company will align its operations,
strategy and brand with its public safety focus and will transition to the Allerium name. Allerium will be able to direct investment,
innovation, and execution around a single mission-critical market with significant long-term demand drivers as public safety solutions
continue to evolve from voice-based connections to data-centric communication, coordination and real-time AI-enhanced decision-making.
With a simpler operating model, a strengthened balance sheet, and a single strategic focus, Allerium intends to accelerate its growth
of recurring software and services revenue and expand margins and operating leverage while investing more decisively in the innovation
its public safety customers depend upon.
“Allerium is well-positioned to build upon
the leadership we have established in the public safety market, as we are the first to bring together the complete emergency response
ecosystem — from device location to the systems, networks and data analysis that help drive action and connect people to emergency
assistance,” said Jeff Robertson, President of Allerium. “The industry is expanding beyond voice as agencies and network operators
face increasing data complexity, rising call volumes, workforce constraints and growing expectations for real-time situational awareness.
This evolution is creating new opportunities for AI-assisted intelligent workflows, real-time information correlation, and technologies
designed to help public safety operators manage increasing volumes of critical information during active incidents. We believe Allerium
will play a leading role in defining the next generation of emergency communications by helping public safety move beyond connectivity
toward coordination.”
"We are proud of our entire team who contributed
to the significant turnaround and repositioning of our S&S business," commented Daniel Gizinski, President of S&S. “We
will continue to support our mission, customers and partners going forward.”
"We are impressed with the successful progress
of Comtech and look forward to welcoming its Satellite and Space Communications segment into Gilat," said Adi Sfadia, CEO of Gilat.
“This segment brings a talented team and strong technology, and we believe it is an excellent strategic fit with Gilat.”
Comtech anticipates the net cash proceeds from
the Transaction to range from approximately $143.0 million to $145.0 million, after deducting estimated Transaction related expenses of
approximately $12.5 million to $14.5 million. Such net cash proceeds do not include any additional proceeds that the Company may generate
from assets that have been part of the S&S business and retained by Comtech. In accordance with its existing credit facilities, the
Company will use 65% of the net proceeds from the Transaction to prepay the majority of its senior secured credit facility, with the remaining
35% to prepay subordinated debt outstanding, starting with repaying the subordinated priority term loan.
In connection with aligning its operations, strategy
and brand with a public safety focus, the Company anticipates investing between approximately $12.0 million and $14.0 million for transition
related costs. Such costs are expected to be incurred mostly in fiscal 2027 and associated with business systems tools, capabilities,
personnel and reporting functions. After completing the sale of most of the S&S business and after approximately one year of transition
implementation, Comtech anticipates annual cost savings, excluding one-time non-recurring expenses, to range from approximately $11.0
million to $13.0 million.
For the trailing twelve months ended April 30,
2026, net sales for the businesses being retained by Comtech were approximately $249.0 million and funded backlog as of April 30, 2026
was $554.0 million. Considering the above anticipated cost savings, the Company estimates that pro forma Adjusted EBITDA would have been
between approximately $33.0 million and $35.0 million for the trailing twelve months ended April 30, 2026. Such amounts are unaudited
estimates. Adjusted EBITDA, a Non-GAAP financial measure, is defined in Comtech’s Form 10-Q to be filed with the SEC on June 15,
2026. See below for reconciliation of GAAP Operating Income to Adjusted EBITDA.
Reconciliation of Pro Forma1 GAAP Operating Income
to Adjusted EBITDA:
$ in millions
Twelve months ended
April 30, 2026
Operating income
$ 2.0
Amortization of intangibles
14.0
Depreciation
11.0
Restructuring costs
5.0
CEO transition costs
2.0
Adjusted EBITDA
$ 34.0
1 Pro forma results presented in the above table for the trailing twelve months ended April 30, 2026 represent the businesses being retained by Comtech, plus anticipated cost savings. The businesses being retained by Comtech include: Allerium, certain cyber-focused assets currently within the S&S segment and Unallocated.
TD Securities (USA) LLC is acting as exclusive
financial advisor to Comtech on the Transaction. Norton Rose Fulbright is acting as legal advisor to Comtech on the Transaction and amendments
to its credit agreements and convertible preferred stock agreements. Naschitz Brandes Amir is acting as legal advisor to Gilat on the
Transaction. Quilty Space is acting as a business advisor to Gilat in connection with the Transaction.
The Transaction concludes Comtech’s previously
announced strategic alternatives processes.
About Comtech
Comtech Telecommunications Corp. delivers trusted
mission-critical communications solutions used by military forces, government agencies, public safety organizations, mobile network operators
and communities around the world. With nearly 60 years of global communications technology leadership, Comtech provides secure, resilient
systems proven to perform in the world’s most demanding environments. Through advanced satellite and space communications systems
and Allerium’s Next Generation 9-1-1 emergency services and location-intelligence platforms, Comtech delivers reliable connectivity
across orbit, network and ground to keep essential missions, services and communities connected when it matters most. For more information,
please visit comtech.com.
Forward-Looking Statements
Certain information in this press release contains
forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, Section 21E of the Securities Exchange Act
of 1934, and the Private Securities Litigation Reform Act of 1995. Forward-looking statements can be identified by words such as: "anticipate,"
"believe," "continue," "could," "estimate," "expect," "future," "goal,"
"outlook," "intend," "likely," "may," "plan," "potential," "predict,"
"project," "seek," "should," "strategy," "target," "will," "would,"
and similar references to future periods, or the negative of those words and expressions, as well as statements in future tense. Forward-looking
statements include, among others, the expected completion of, the anticipated benefits of, and the Company’s plans, strategies and
objectives relating to, the pending transaction with Gilat Satellite Networks Ltd, the time frame in which such proposed transaction will
occur, and the planned use of net proceeds received by the Company in connection with the proposed transaction, including the planned
repayment of some or all of the Company’s existing senior secured credit facility and subordinated debt. Forward-looking statements
should not be read as a guarantee of future performance or results, and will not necessarily be accurate indications of the times at,
or by which, such performance or results will be achieved. Forward-looking information is based on information available at the time and/or
the Company’s good faith belief with respect to future events, and is subject to risks and uncertainties that are difficult to predict
and many of which are outside of the Company’s control. Factors that could cause actual results to differ materially from current
expectations include, among other things: the parties’ ability to meet expectations regarding the timing, completion and accounting
and tax treatments of the transaction, including changes in relevant tax and other applicable laws, and the occurrence of any event, change
or other circumstance that could give rise to the termination of the transaction agreements; the risk that the proposed transaction may
not be completed on the terms or in the time frame expected by the parties, or at all, including as a result of a delay or failure to
obtain certain required regulatory approvals or the failure of any other condition to the closing of the transaction such that the closing
of the transaction is delayed or does not occur; unexpected costs, liabilities or delays in connection with the proposed transaction;
the significant transaction costs associated with the proposed transaction; negative effects of the announcement, pendency or consummation
of the transaction on the market price of the Company’s common stock or operating results, including as a result of changes in key
customer, supplier, employee or other business relationships; the risk of litigation or regulatory actions; the Company’s inability
to retain and hire key personnel; and other factors described in this and the Company’s other filings with the Securities and Exchange
Commission ("SEC"), including the “Risk Factors” (Part I, Item 1A), “Management’s Discussion and Analysis
of Financial Condition and Results of Operations” (Part II, Item 7) and “Quantitative and Qualitative Disclosures about Market
Risk” (Part II, Item 7A) sections in the Company’s Annual Report on Form 10-K filed with the SEC on November 10, 2025, as
the same may be updated from time to time in the Company’s various filings with the SEC. The Company does not intend to update or
revise publicly any forward-looking statements, whether because of new information, future events, or otherwise, except as required by
law.
Investor Relations Contact
Maria Ceriello
631-962-7115
Maria.Ceriello@comtech.com
Media Contacts
Jamie Clegg
480-532-2523
Jamie.Clegg@comtech.com
Longacre Square Partners
Comtech@LongacreSquare.com
GRAPHIC
GRAPHIC
Filename: logo.jpg · Sequence: 16
Binary file (10504 bytes)
Download logo.jpg
GRAPHIC
GRAPHIC
Filename: tm2617923d1_ex4-1img001.jpg · Sequence: 17
Binary file (1567 bytes)
Download tm2617923d1_ex4-1img001.jpg
GRAPHIC
GRAPHIC
Filename: tm2617923d1_ex4-2img01.jpg · Sequence: 18
Binary file (2018 bytes)
Download tm2617923d1_ex4-2img01.jpg
GRAPHIC
GRAPHIC
Filename: tm2617923d1_exhibit-cimg001.jpg · Sequence: 19
Binary file (2525 bytes)
Download tm2617923d1_exhibit-cimg001.jpg
GRAPHIC
GRAPHIC
Filename: tm2617923d1_exhibit-cimg002.jpg · Sequence: 20
Binary file (11964 bytes)
Download tm2617923d1_exhibit-cimg002.jpg
GRAPHIC
GRAPHIC
Filename: tm2617923d1_exhibit-cimg003.jpg · Sequence: 21
Binary file (9514 bytes)
Download tm2617923d1_exhibit-cimg003.jpg
XML — IDEA: XBRL DOCUMENT
XML
Filename: R1.htm · Sequence: 23
v3.26.1
Cover
Jun. 14, 2026
Cover [Abstract]
Document Type
8-K
Amendment Flag
false
Document Period End Date
Jun. 14, 2026
Entity File Number
0-7928
Entity Registrant Name
Comtech Telecommunications Corp.
Entity Central Index Key
0000023197
Entity Tax Identification Number
11-2139466
Entity Incorporation, State or Country Code
DE
Entity Address, Address Line One
305 N 54th Street,
Entity Address, City or Town
Chandler
Entity Address, State or Province
AZ
Entity Address, Postal Zip Code
85226
City Area Code
480
Local Phone Number
333-2200
Written Communications
false
Soliciting Material
false
Pre-commencement Tender Offer
false
Pre-commencement Issuer Tender Offer
false
Title of 12(b) Security
Common Stock, par value $0.10 per share
Trading Symbol
CMTL
Security Exchange Name
NASDAQ
Entity Emerging Growth Company
false
X
- Definition
Boolean flag that is true when the XBRL content amends previously-filed or accepted submission.
+ References
No definition available.
+ Details
Name:
dei_AmendmentFlag
Namespace Prefix:
dei_
Data Type:
xbrli:booleanItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Area code of city
+ References
No definition available.
+ Details
Name:
dei_CityAreaCode
Namespace Prefix:
dei_
Data Type:
xbrli:normalizedStringItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Cover page.
+ References
No definition available.
+ Details
Name:
dei_CoverAbstract
Namespace Prefix:
dei_
Data Type:
xbrli:stringItemType
Balance Type:
na
Period Type:
duration
X
- Definition
For the EDGAR submission types of Form 8-K: the date of the report, the date of the earliest event reported; for the EDGAR submission types of Form N-1A: the filing date; for all other submission types: the end of the reporting or transition period. The format of the date is YYYY-MM-DD.
+ References
No definition available.
+ Details
Name:
dei_DocumentPeriodEndDate
Namespace Prefix:
dei_
Data Type:
xbrli:dateItemType
Balance Type:
na
Period Type:
duration
X
- Definition
The type of document being provided (such as 10-K, 10-Q, 485BPOS, etc). The document type is limited to the same value as the supporting SEC submission type, or the word 'Other'.
+ References
No definition available.
+ Details
Name:
dei_DocumentType
Namespace Prefix:
dei_
Data Type:
dei:submissionTypeItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Address Line 1 such as Attn, Building Name, Street Name
+ References
No definition available.
+ Details
Name:
dei_EntityAddressAddressLine1
Namespace Prefix:
dei_
Data Type:
xbrli:normalizedStringItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Name of the City or Town
+ References
No definition available.
+ Details
Name:
dei_EntityAddressCityOrTown
Namespace Prefix:
dei_
Data Type:
xbrli:normalizedStringItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Code for the postal or zip code
+ References
No definition available.
+ Details
Name:
dei_EntityAddressPostalZipCode
Namespace Prefix:
dei_
Data Type:
xbrli:normalizedStringItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Name of the state or province.
+ References
No definition available.
+ Details
Name:
dei_EntityAddressStateOrProvince
Namespace Prefix:
dei_
Data Type:
dei:stateOrProvinceItemType
Balance Type:
na
Period Type:
duration
X
- Definition
A unique 10-digit SEC-issued value to identify entities that have filed disclosures with the SEC. It is commonly abbreviated as CIK.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
+ Details
Name:
dei_EntityCentralIndexKey
Namespace Prefix:
dei_
Data Type:
dei:centralIndexKeyItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Indicate if registrant meets the emerging growth company criteria.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
+ Details
Name:
dei_EntityEmergingGrowthCompany
Namespace Prefix:
dei_
Data Type:
xbrli:booleanItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Commission file number. The field allows up to 17 characters. The prefix may contain 1-3 digits, the sequence number may contain 1-8 digits, the optional suffix may contain 1-4 characters, and the fields are separated with a hyphen.
+ References
No definition available.
+ Details
Name:
dei_EntityFileNumber
Namespace Prefix:
dei_
Data Type:
dei:fileNumberItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Two-character EDGAR code representing the state or country of incorporation.
+ References
No definition available.
+ Details
Name:
dei_EntityIncorporationStateCountryCode
Namespace Prefix:
dei_
Data Type:
dei:edgarStateCountryItemType
Balance Type:
na
Period Type:
duration
X
- Definition
The exact name of the entity filing the report as specified in its charter, which is required by forms filed with the SEC.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
+ Details
Name:
dei_EntityRegistrantName
Namespace Prefix:
dei_
Data Type:
xbrli:normalizedStringItemType
Balance Type:
na
Period Type:
duration
X
- Definition
The Tax Identification Number (TIN), also known as an Employer Identification Number (EIN), is a unique 9-digit value assigned by the IRS.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
+ Details
Name:
dei_EntityTaxIdentificationNumber
Namespace Prefix:
dei_
Data Type:
dei:employerIdItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Local phone number for entity.
+ References
No definition available.
+ Details
Name:
dei_LocalPhoneNumber
Namespace Prefix:
dei_
Data Type:
xbrli:normalizedStringItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 13e
-Subsection 4c
+ Details
Name:
dei_PreCommencementIssuerTenderOffer
Namespace Prefix:
dei_
Data Type:
xbrli:booleanItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 14d
-Subsection 2b
+ Details
Name:
dei_PreCommencementTenderOffer
Namespace Prefix:
dei_
Data Type:
xbrli:booleanItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Title of a 12(b) registered security.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b
+ Details
Name:
dei_Security12bTitle
Namespace Prefix:
dei_
Data Type:
dei:securityTitleItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Name of the Exchange on which a security is registered.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection d1-1
+ Details
Name:
dei_SecurityExchangeName
Namespace Prefix:
dei_
Data Type:
dei:edgarExchangeCodeItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as soliciting material pursuant to Rule 14a-12 under the Exchange Act.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 14a
-Subsection 12
+ Details
Name:
dei_SolicitingMaterial
Namespace Prefix:
dei_
Data Type:
xbrli:booleanItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Trading symbol of an instrument as listed on an exchange.
+ References
No definition available.
+ Details
Name:
dei_TradingSymbol
Namespace Prefix:
dei_
Data Type:
dei:tradingSymbolItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as written communications pursuant to Rule 425 under the Securities Act.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Securities Act
-Number 230
-Section 425
+ Details
Name:
dei_WrittenCommunications
Namespace Prefix:
dei_
Data Type:
xbrli:booleanItemType
Balance Type:
na
Period Type:
duration