Commitment Letter, dated as of January 29, 2020, among Comtech Telecommunications Corp., Citibank, N.A.and the other commitment parties party thereto

EX-10.1 3 tm206120d2_ex10-1.htm EXHIBIT 10.1

Exhibit 10.1

CITIBANK, N.A. 730 Veterans Memorial Highway Hauppauge, NY 11788	MANUFACTURERS AND TRADERS TRUST COMPANY 401 Broad Hollow Road Melville, NY 11747	SANTANDER BANK, N.A. 3 Huntington Quadrangle Suite 101N Melville, NY 11747
BMO HARRIS BANK, N.A.		REGIONS BANK
BMO CAPITAL MARKETS CORP. Spear Tower, One Market Plaza San Francisco, CA 94105		615 South College Street Suite 600 Charlotte, NC 28202
ISRAEL DISCOUNT BANK OF NEW YORK 511 Fifth Avenue New York, NY 10017		GOLDMAN SACHS BANK USA 200 West Street New York, NY 10010

January 29, 2020

Comtech Telecommunications Corp.
68 South Service Road, Suite 230
Melville, NY 11747

Attention: Michael D. Porcelain

Commitment Letter
Senior Secured Revolving Credit Facility

Ladies and Gentlemen:

Comtech Telecommunications Corp., a Delaware corporation (the “Borrower” or “you”), has advised Citi (as defined below), Manufacturers and Traders Trust Company (“M&T”), Santander Bank, N.A. (“Santander”), BMO Harris Bank, N.A. and BMO Capital Markets Corp. (together, “BMO”), Regions Bank (“Regions”), Israel Discount Bank of New York (“IDB”) and Goldman Sachs Bank USA (“GS” and, together with Citi, M&T, Santander, BMO, Regions and IDB, the “Initial Commitment Parties”) that the Borrower desires to consummate the Transactions (as defined in Exhibit A hereto (such exhibit, the “Transactions Description”)). Capitalized terms used in this letter agreement but not defined herein shall have the meanings given to them in the Exhibits (as defined below) hereto. For the purposes of this Commitment Letter and the Fee Letter referred to below, “Citi” shall mean Citibank, N.A. and/or any of its affiliates as it shall determine to be appropriate to provide the services contemplated herein. The terms “Commitment Parties”, “we” or “us” refer to the Initial Commitment Parties or, after the appointment of any additional Arrangers and Initial Lenders pursuant to Section 1 hereof, all Arrangers and Initial Lenders as a group.

Upon the terms and subject only to the conditions set forth in Section 3 of this letter agreement and the attached Exhibit C (Exhibit C, together with Exhibit A and Exhibit B, collectively, the “Exhibits” and, together with this letter agreement, this “Commitment Letter”), each of Citi, M&T, Santander, BMO, Regions, IDB and GS is pleased to inform the Borrower of its several, but not joint, commitment to provide the percentage of the aggregate principal amount of the Facility (as defined in Exhibit A hereto) set forth opposite its name in the table below (each of Citi, M&T, Santander, BMO, Regions, IDB and GS in such capacity, an “Initial Lender” and collectively with any additional Initial Lenders hereafter appointed pursuant to Section 1 hereof, the “Initial Lenders”).

	Bank		Percentage
	Citi		20.000%
	M&T		20.000%
	Santander		20.000%
	BMO		16.250%
	Regions		9.375%
	IDB		9.375%
	GS		5.000%

Section 1. Title and Roles.

You hereby appoint (i) each of Citi, M&T, Santander and BMO to act, and each of Citi, M&T, Santander and BMO hereby agrees to act, together with any additional Arrangers hereafter appointed pursuant to this Section 1 with the title of joint bookrunner and joint lead arranger, as a joint bookrunner and joint lead arranger with respect to the Facility (Citi, M&T, Santander and BMO, together with any other joint bookrunners and joint lead arrangers appointed pursuant to this Section 1, each in such capacity, a “Lead Arranger” and, collectively in such capacities, the “Lead Arrangers”), (ii) each of Regions, IDB and GS to act, and each of Regions, IDB and GS hereby agrees to act, as an arranger with respect to the Facility (Citi, M&T, Santander, BMO, Regions, IDB and GS, together with any other agents, co-agents, joint bookrunners, joint lead arrangers, arrangers or co-managers appointed pursuant to this Section 1, in the respective capacities described above, each an “Arranger” and, collectively in such capacities, the “Arrangers”) and (iii) Citi to act, and Citi hereby agrees to act, as sole administrative agent and collateral agent with respect to the Facility, in each case upon the terms and subject to the conditions described in this Commitment Letter. You agree that no additional agents, co-agents, bookrunners, lead arrangers, arrangers or co-managers will be appointed, or other titles conferred, and no compensation (other than that expressly contemplated by this Commitment Letter and the Fee Letter referred to below) will be paid to any other person in order to obtain commitments to the Facility unless you and the Commitment Parties shall so agree; provided that Citi, in consultation with the other Arrangers and you, shall be entitled to appoint additional agents, co-agents, joint bookrunners, joint lead arrangers or co-managers (it being understood and agreed that, to the extent Citi appoints any additional agents, co-agents, joint bookrunners, joint lead arrangers or co-managers in respect of the Facility, then, notwithstanding anything herein to the contrary, the aggregate amount of commitments of the Initial Lenders as of the date hereof in respect of the Facility will be permanently reduced by the amount of the commitments of such appointed entities (or their relevant affiliates) in respect of the Facility upon the execution by such financial institution (and any relevant affiliate) of customary joinder documentation in form and substance acceptable to you and us (and such aggregate reduction shall be apportioned among the Initial Lenders as of the date hereof as follows: (i) first, to each Initial Lender as of the date hereof whose commitment hereunder in respect of the Facility exceeds the amount that, pursuant to the Fee Letter, would constitute a Successful Syndication with respect to such Initial Lender (such excess amount, with respect to any such Initial Lender, its “Excess Hold Amount”), on a pro rata basis among such Initial Lenders according to the respective Excess Hold Amount of each such Initial Lender (until all Excess Hold Amounts are eliminated); and (ii) second, after all Excess Hold Amounts have been eliminated by application of clause (i) above, on a pro rata basis among the Lead Arrangers as of the date hereof according to the respective amounts of their remaining commitments in respect of the Facility) and, thereafter, each such financial institution (and any relevant affiliate) shall constitute an “Arranger” and it or its relevant affiliate providing such commitment shall constitute an “Initial Lender” and “Commitment Party” and the commitments of the Commitment Parties in respect of the Facility shall be several and not joint). It is further agreed that (i) Citi will have primary authority for managing the syndication of the Facility and Citi shall have “left side” placement in any and all marketing materials or other documentation used in connection with the Facility and shall hold the leading role and responsibilities conventionally associated with such “left” placement, (ii) M&T will appear immediately to the “right” of Citi in any and all marketing materials or other documentation used in connection with the Facility and to the “left” of all other financial institutions (other than Citi), (iii) Santander will appear immediately to the “right” of M&T in any and all marketing materials or other documentation used in connection with the Facility and to the “left” of all other financial institutions (other than Citi and M&T) and (iv) BMO will appear immediately to the “right” of Santander in any and all marketing materials or other documentation used in connection with the Facility and to the “left” of all other financial institutions (other than Citi, M&T and Santander); (v) Regions will appear immediately to the “right” of BMO in any and all marketing materials or other documentation used in connection with the Facility and to the “left” of all other financial institutions (other than Citi, M&T, Santander and BMO), (vi) IDB will appear immediately to the “right” of Regions in any and all marketing materials or other documentation used in connection with the Facility and to the “left” of all other financial institutions (other than Citi, M&T, Santander, BMO and Regions) and (vii) GS will appear immediately to the “right” of IDB in any and all marketing materials or other documentation used in connection with the Facility and to the “left” of all other financial institutions (other than Citi, M&T, Santander, BMO, Regions and IDB).

Section 2. Syndication.

The Commitment Parties reserve the right, prior to and/or after the execution of the definitive documentation (including any security agreements, ancillary agreements, certificates or other documents delivered in connection therewith) with respect to the Facility (collectively, the “Operative Documents”), to syndicate all or a portion of their commitments under the Facility to one or more other banks, financial institutions, investors and other lenders identified by us and reasonably acceptable to you (such consent not to be unreasonably withheld, delayed or conditioned) (the lenders providing the Facility, together with the Initial Lenders, collectively referred to herein as the “Lenders”); provided that the Commitment Parties will not syndicate to (a) persons that are competitors of any of the Borrower, the Acquired Business and their respective subsidiaries identified in writing to us from time to time (or subsidiaries or affiliates of any such competitors that are clearly identifiable as such on the basis of such subsidiary or affiliate’s name) (in each case, other than a bona fide bank, debt fund or an investment vehicle that is generally engaged in the making of, purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit in the ordinary course of its business); provided, further that any supplementation of such list delivered to us (or, on and following the Closing Date (as defined below), the Agent in respect of the Facility) in writing from time to time shall not apply retroactively to disqualify any parties that have previously acquired an assignment or participation interest in the loans or commitments under the Facility, or (b) banks, financial institutions and other entities (or subsidiaries thereof) separately identified by you to us in writing prior to the date hereof (such persons or entities described in clause (a) or (b), collectively the “Disqualified Lenders”). Subject to the foregoing, Citi will manage all aspects of the syndication of the Facility in consultation with the Borrower, including the timing of the commencement of syndication efforts, the timing of all offers to potential Lenders, the determination of all amounts offered to potential Lenders, the selection of Lenders and the allocation of commitments among the Lenders (it being understood that, if, at any time such commitments are so allocated among the Lenders, any Initial Lender as of the date hereof holds any Excess Hold Amount, then the respective commitment hereunder in respect of the Facility of each such Initial Lender will be reduced in the manner provided by clause (i) of the proviso to the second sentence of Section 1 until all Excess Hold Amounts are eliminated). Notwithstanding our right to syndicate the Facility as provided in this Section 2 and receive commitments with respect thereto, (a) no assignment or novation shall become effective with respect to all or any portion of our commitment in respect of the Facility until after the initial effectiveness of the commitments under the Facility on the Closing Date (other than with respect to assignments or novations to the additional Arrangers and Initial Lenders appointed in accordance with Section 1 of this Commitment Letter) and (b) unless you otherwise agree in writing, we shall retain exclusive control over all rights and obligations with respect to our commitments and other obligations hereunder, including all rights with respect to consents, modifications, supplements, waivers and amendments of this Commitment Letter and the Fee Letter, until the initial effectiveness of the commitments under the Facility on the Closing Date.

Without limiting your obligations to assist with syndication efforts as set forth herein, it is understood that our commitments hereunder are not conditioned upon the syndication of, or receipt of commitments in respect of, the Facility and in no event shall the commencement or successful completion of syndication of the Facility, nor the obligation to assist with syndication efforts as set forth herein, constitute a condition to the commitment hereunder or the initial effectiveness of the commitments under the Facility on the Closing Date. The Arrangers may commence syndication efforts promptly upon the execution of this Commitment Letter and as part of their syndication efforts it is the Arrangers’ intent to have Lenders commit to the Facility prior to the Closing Date. Until the earlier of (i) the 90th day following the date of the consummation of the Acquisition with the proceeds of the initial borrowing under the Facility (the date of such consummation and borrowing, the “Closing Date”), and (ii) the date upon which a Successful Syndication (as defined in the Fee Letter) is achieved (such earlier date, the “Syndication Date”), the Borrower hereby agrees to use its commercially reasonable efforts to assist, and use its commercially reasonable efforts to cause the Acquired Business to assist, us in achieving a syndication that is reasonably satisfactory to us and you. The Borrower’s assistance in achieving such syndication shall include but not be limited to: (i) making appropriate members of the senior management, representatives and advisors of the Borrower (and using its commercially reasonable efforts to make appropriate members of the senior management, representatives and advisors of the Acquired Business) available to participate in informational meetings with potential Lenders at such times and locations to be mutually agreed (or, if you and we shall agree, conference calls in lieu of any such meeting); (ii) using its commercially reasonable efforts to ensure that the syndication efforts benefit from the existing lending relationships of the Borrower (and, to the extent practical and appropriate, of the Acquired Business); (iii) assisting (and using its commercially reasonable efforts to cause its affiliates and advisors, and the Acquired Business and its affiliates and advisors, to assist) in the preparation (and/or providing to us) of a customary confidential information memorandum for the Facility and other customary marketing materials with respect to the Borrower and its subsidiaries, the Acquired Business or the Transactions in connection with the syndication (collectively, the “Company Materials”) and using its commercially reasonable efforts to ensure that the Arrangers shall have received no later than 20 business days prior to the Closing Date all necessary information to complete the confidential information memorandum (including executed customary authorization letters in respect thereof that include a customary “10b-5” representation); (iv) providing or causing to be provided customary financial information and projections for the Borrower and its subsidiaries after giving effect to the Transactions, including for each of the fiscal years until the scheduled maturity of the Facility and for the four fiscal quarters beginning with the first fiscal quarter in which the Closing Date is expected to occur, in each case in form reasonably satisfactory to the Arrangers; (v) the hosting, with the Arrangers, of a reasonable number of meetings or conference calls of prospective Lenders (and your using commercially reasonable efforts to cause certain officers of the Acquired Business to be available for such meetings); and (vi) delivering to the Arrangers, promptly upon receipt thereof, all financial information related to the Acquired Business delivered to the Borrower pursuant to the Acquisition Agreement.

The Borrower acknowledges that (i) the Arrangers may make available the Company Materials on a confidential basis to potential Lenders by posting the Company Materials on Intralinks, SyndTrak Online, Debtdomain, the internet, email and/or similar electronic transmission systems (the “Platform”) and (ii) certain of the potential Lenders may be public side Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to you, your subsidiaries, the Acquired Business or any securities of any thereof) (each, a “Public Lender”). The Borrower agrees that (A) at the reasonable request of any Arranger, it will assist us in preparing a version of the information package and presentation to be provided to potential Lenders that does not contain any material non-public information concerning you, your subsidiaries, the Acquired Business or any securities of any thereof for purposes of United States federal and state securities laws (any such information, “MNPI”, and any information package or presentation that contains MNPI is referred to as “Private-Side Materials”); (B) all Company Materials that are Private-Side Materials will be clearly and conspicuously marked “Private, contains Material Non-Public Information” which will mean that “Private, contains Material Non-Public Information” will appear prominently on the first page thereof; (C) if any Company Materials are not marked, the Borrower will be deemed to have authorized the Arrangers and the proposed Lenders to treat such Company Materials as not containing any MNPI; (D) all Company Materials not marked “Private, contains Material Non-Public Information” are permitted to be made available through a portion of the Platform designated “Public Lender”; and (E) the Borrower shall provide us with customary authorization letters for inclusion in the Company Materials that represents that any Company Materials not marked “Private, contains Material Non-Public Information” does not include MNPI and the Company Materials will contain customary language exculpating us and our respective affiliates with respect to any liability related to the use or misuse of the contents of the Company Materials by the recipients thereof. The Arrangers agree to treat any Company Materials that are marked “Private, contains Material Non-Public Information” as being suitable only for posting on a portion of the Platform not designated “Public Lender”. To ensure an orderly and effective syndication of the Facility, the Borrower agrees that, until the Syndication Date, the Borrower will not, and will not permit any of its subsidiaries to (and the Borrower will use commercially reasonable efforts to not permit the Acquired Business to), syndicate, issue, place, arrange or attempt to syndicate, issue, place or arrange, or announce or authorize the announcement of the syndication, issuance, placement or arrangement of, any debt facility or debt security (including, without limitation, the renewal of any thereof, but excluding the Facility) without the prior written consent of the Arrangers if such syndication, issuance, placement or arrangement could reasonably be expected to impair the primary syndication of the Facility.

Section 3. Conditions.

The commitments of each Commitment Party hereunder to fund its respective portion of the Facility on the Closing Date and the agreements of each of the Arrangers to perform the services described herein are subject solely to the satisfaction of the conditions set forth in the below paragraph of this Section 3 and Exhibit C (collectively, the “Funding Conditions”); it being understood that there are no conditions (implied or otherwise) to the commitments hereunder other than the Funding Conditions that are expressly stated to be conditions to the initial effectiveness of the commitments under the Facility on the Closing Date (and upon satisfaction or waiver of the Funding Conditions, the initial effectiveness of the commitments under the Facility on the Closing Date shall occur).

Notwithstanding anything in this Commitment Letter, the Fee Letter, the Operative Documents or any other letter agreement or other undertaking concerning the financing of the Transactions to the contrary, (i) the only representations and warranties relating to you, the Guarantors, the Acquired Business, your and their respective subsidiaries and your and their respective businesses the accuracy of which shall be a condition to the initial effectiveness of the commitments under the Facility on the Closing Date shall be (A) the Specified Representations (as defined below) made by the Borrower and the Guarantors in the Operative Documents and (B) such of the representations and warranties made by or with respect to the Acquired Business in the Acquisition Agreement as are material to the interests of the Arrangers and the Lenders, but only to the extent that you or Merger Sub have the right to terminate your (or its) obligations under the Acquisition Agreement, or the right not to consummate the Acquisition, pursuant to the Acquisition Agreement as a result of a breach of any such representations and warranties (the “Acquired Business Representations”) and (ii) the terms of the Operative Documents shall be in a form such that they do not impair the initial effectiveness of the commitments under the Facility on the Closing Date if the Funding Conditions set forth in this Section 3 and in Exhibit C hereto are satisfied (or waived by each of the Commitment Parties) (it being understood that to the extent any Collateral (other than Collateral that may be perfected by (A) the filing of a UCC financing statement, (B) taking delivery and possession of stock (or other equity interest) certificates and related stock powers executed in blank (other than in respect of any immaterial subsidiary (to be defined in a manner to be reasonably agreed) of the Borrower or any subsidiary of the Borrower organized outside of the United States), to the extent, where applicable, such stock certificates are received from the Acquired Business on or prior to the Closing Date or (C) the filing of a short form security agreement with the United States Patent and Trademark Office or the United States Copyright Office) cannot be delivered or a security interest therein cannot be created or perfected on the Closing Date after your use of commercially reasonable efforts to do so, then the creation and/or perfection of the security interest in such Collateral shall not constitute a condition precedent to the initial effectiveness of the commitments under the Facility on the Closing Date, but instead shall be required to be accomplished pursuant to arrangements to be reasonably and mutually agreed by the parties hereto acting reasonably (x) within two business days after the Closing Date, in the case of stock (or other equity interest) certificates and related stock powers executed in blank relating to the Acquired Business or (y) within 60 days after the Closing Date, in all other cases (in each case, with extensions available in the Agent’s reasonable discretion)). Those matters that are not covered by or made clear under the provisions of this Commitment Letter shall be negotiated in good faith and are subject to the approval and agreement of us and you; provided that nothing in the Operative Documents shall increase or expand the conditions to initial effectiveness set forth in this Section 3 or in Exhibit C and, in all other respects, that such approvals and agreements shall be in a manner that is consistent with the Summary of Principal Terms and Conditions set forth in Exhibit B and, with respect to other terms, the Documentation Principles (as defined in Exhibit B). For purposes hereof, “Specified Representations” means the representations and warranties made by the Borrower and the Guarantors set forth in the Operative Documents relating to due organization, corporate existence and good standing, organizational power and authority (as to the execution, delivery and performance of the applicable Operative Documents), the due authorization, execution, delivery and enforceability of the applicable Operative Documents, no violation of, or conflict with, organizational documents of the Borrower and the Guarantors, in each case, related to the entering into and performance of the Operative Documents, solvency as of the Closing Date of the Borrower and its subsidiaries on a consolidated basis after giving effect to the Transactions, the creation and perfection of security interests in the Collateral (subject to the limitations set forth in the preceding sentence), Federal Reserve margin regulations, Patriot Act (as defined below), FCPA, OFAC and laws applicable to sanctioned persons, the Investment Company Act and status of the Facility and the guarantees as senior debt (if applicable). Without limiting the conditions precedent provided herein to funding the consummation of the Acquisition with the proceeds of the Facility, the Arrangers will cooperate with you as reasonably requested in coordinating the timing and procedures for the initial borrowing under the Facility in a manner consistent with the Acquisition Agreement. The provisions of this paragraph are referred to as the “Limited Conditionality Provisions”.

Section 4. Commitment Termination.

Each Commitment Party’s commitment hereunder and the other obligations set forth in this Commitment Letter will terminate on the earliest of: (a) the consummation of the Acquisition with or without the proceeds of any borrowings under the Facility, (b) July 29, 2020 (provided that if the “Termination Date” in the Acquisition Agreement is extended pursuant to Section 8.1(d) of the Acquisition Agreement (as in effect on the date hereof), the date in this clause (b) shall instead be October 29, 2020) and (c) the date the Acquisition Agreement is terminated (such earliest date, the “Termination Date”).

Section 5. Fees.

As consideration for our commitments and other obligations hereunder and our agreement to perform the services described herein, you agree to pay (or to cause to be paid) to us the fees set forth in this Commitment Letter and in the fee letter dated the date hereof among the parties hereto (such fee letter, as amended, amended and restated, supplemented or otherwise modified, the “Fee Letter”). The terms of the Fee Letter are an integral part of the commitment of each of the Commitment Parties and the other obligations of each of the Commitment Parties hereunder, and their respective agreement to perform the services described herein, and constitute part of this Commitment Letter for all purposes hereof. Each of the fees described in this Commitment Letter and the Fee Letter shall be nonrefundable when paid.

Section 6. Indemnification.

The Borrower shall indemnify and hold harmless each Commitment Party, its affiliates, and each Commitment Party’s and such affiliates’ respective directors, officers, employees, agents, trustees, representatives, attorneys, consultants and advisors (each, an “Indemnified Person”) from and against any and all actual claims (including, without limitation, shareholder actions), damages, losses, liabilities and expenses (including, without limitation, reasonable and documented out-of-pocket fees and disbursements of counsel but limited, in the case of legal fees and disbursements, to one counsel to such Indemnified Persons, taken as a whole, and, solely in the case of an actual or potential conflict of interest, one additional counsel to each set of similarly affected Indemnified Persons, taken as a whole (and, if reasonably necessary, (x) of one regulatory or specialty counsel with respect to any material regulatory and/or other specialty areas and (y) of one local counsel in any relevant jurisdiction, in each case, to all such persons, taken as a whole and, solely in the case of any such actual or potential conflict of interest, one additional counsel of the applicable type to each set of similarly affected Indemnified Persons)), that may be incurred by or asserted or awarded against any Indemnified Person (including, without limitation, in connection with or relating to any investigation, litigation or proceeding or the preparation of a defense in connection therewith), in each case arising out of or in connection with or by reason of this Commitment Letter, the Fee Letter, the Acquisition Agreement or the Operative Documents, the Transactions or the transactions contemplated hereby or thereby or any use of the proceeds thereof (any of the foregoing, a “Proceeding”), except to the extent such claim, damage, loss, liability or expense is (i) found in a final non-appealable judgment by a court of competent jurisdiction to have resulted from (a) such Indemnified Person’s bad faith, gross negligence or willful misconduct or (b) a material breach of the obligations of such Indemnified Person under this Commitment Letter or (ii) the result of any Proceeding that is not the result of an act or omission by you or any of your affiliates and that is brought by an Indemnified Person against any other Indemnified Person (other than any claims against any Commitment Party in its capacity or in fulfilling its role as Arranger, administrative agent, collateral agent or any similar role under the Facility). In the case of an investigation, litigation or other proceeding to which the indemnity in this paragraph applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by the Borrower, any of its affiliates, security holders or creditors, an Indemnified Person or any other person, or an Indemnified Person is otherwise a party thereto and whether or not the Transactions are consummated.

In no event shall any party hereto be liable on any theory of liability for any special, indirect, consequential or punitive damages (including, without limitation, any loss of profits, business or anticipated savings); provided that nothing contained in this paragraph shall limit your indemnity and reimbursement obligations for such damages awarded to third parties to the extent set forth in the immediately preceding paragraph.

You agree that, without our prior written consent, neither you nor any of your subsidiaries will settle, compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding in respect of which indemnification could be sought under the indemnification provision of this Commitment Letter (whether or not we or any other Indemnified Person is an actual or potential party to such claim, action or proceeding), unless such settlement, compromise or consent includes an unconditional release of each Indemnified Person, in form and substance reasonably satisfactory to each Indemnified Person, from all liability arising out of such claim, action or proceeding and does not include a statement as to or an admission of fault, culpability or failure to act by or on behalf of any Indemnified Person.

The Borrower acknowledges that information and other materials relative to the Operative Documents and the Transactions may be transmitted through the Platform. No Indemnified Person will be liable to the Borrower or any of its affiliates or any of its security holders or creditors for any damages arising from the use by unauthorized persons of information or other materials sent through the Platform that are intercepted by such persons, except to the extent such liability is determined by a final non-appealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Person’s bad faith, gross negligence or willful misconduct.

Section 7. Costs and Expenses.

The Borrower shall pay, or reimburse the Commitment Parties upon the earlier to occur of (i) the Closing Date and (ii) the date of the termination or expiration of the commitments under this Commitment Letter (and thereafter, if applicable, on demand) for, all reasonable and documented out-of-pocket costs and expenses incurred by the Commitment Parties in connection with the Facility, the Transactions and the preparation, negotiation, execution and delivery of this Commitment Letter, the Fee Letter and the Operative Documents, including, without limitation, reasonable costs associated with posting the Company Information on the Platform and reasonable and documented fees, disbursements and other charges of one primary counsel to the Commitment Parties and of a single local counsel to the Commitment Parties in Israel and each other material jurisdiction (excluding any costs of in-house counsel), regardless of whether any of the transactions contemplated hereby is consummated. The Borrower shall also pay all reasonable and documented out-of-pocket costs and expenses of the Commitment Parties (including, without limitation, the reasonable fees, disbursements and other charges of one primary counsel to the Commitment Parties and (x) of one regulatory or specialty counsel with respect to any material regulatory and/or other specialty areas and (y) of a one local counsel to the Commitment Parties in Israel and each other material jurisdiction) incurred in connection with the enforcement of any of their rights and remedies hereunder.

Section 8. Confidentiality.

The Borrower agrees that this Commitment Letter and the Fee Letter are for its confidential use only and that neither their existence nor the terms hereof or thereof will be disclosed by it to any person other than its subsidiaries and the officers, directors, employees, managers, members, partners, accountants, attorneys and other advisors of the Borrower and its subsidiaries (the “Borrower Representatives”), and then only on a confidential and “need to know” basis in connection with the transactions contemplated hereby; provided, however, that the Borrower may disclose this Commitment Letter and the contents hereof and, solely pursuant to the following clauses (a)(i) and (e), the Fee Letter and the contents thereof: (a)(i) as may be compelled in a judicial or administrative proceeding or in any proceeding or pursuant to the order of any court or administrative agency or upon the request or demand of any regulatory authority or (ii) as otherwise required by law or in any required filings with the Securities and Exchange Commission and to the extent required by applicable regulatory authorities or stock exchanges (but not the Fee Letter or the contents thereof, except as part of generic disclosure of aggregate sources and uses with respect to the Transactions); (b) to the Acquired Business and its respective subsidiaries and controlling persons and the officers, directors, employees, managers, members, partners, accountants, attorneys and other advisors of any of the foregoing who are directly involved in the consideration of this matter, in each case on a confidential and “need to know” basis in connection with the transactions contemplated hereby (but not the Fee Letter or the contents thereof, except as part of generic disclosure of aggregate sources and uses with respect to the Transactions); (c) in syndication or other marketing materials relating to the Facility (but not the Fee Letter or the contents thereof, except as part of generic disclosure of aggregate sources and uses with respect to the Transactions); (d) to each of Moody’s Investors Service, Inc., and S&P Global Ratings, a division of S&P Global Inc., on a confidential basis (but not the Fee Letter or the contents thereof, except as part of generic disclosure of aggregate sources and uses with respect to the Transactions); or (e) with our prior written consent; and provided, further, that the Borrower may disclose the Fee Letter, to the extent the Fee Letter has been redacted in a manner acceptable to Citi with respect to the fees and the “Market Flex” provisions, to the Acquired Business and its controlling persons and the officers, directors, employees, managers, members, partners, accountants, attorneys and other advisors of any of the foregoing who are directly involved in the consideration of this matter, in each case on a confidential and “need to know” basis in connection with the transactions contemplated hereby. Your obligations under this paragraph shall automatically terminate and be superseded by the confidentiality provisions in the Operative Documents upon the execution and delivery thereof and, in the event the Operative Documents have not theretofore been executed and delivered, shall expire on the date occurring 24 months after the date hereof.

Each Commitment Party, on behalf of itself and its affiliates, agrees that it will use all confidential information provided to it or its affiliates by or on behalf of you hereunder solely for the purpose of providing the services which are the subject of this Commitment Letter and shall treat confidentially all such information; provided that nothing herein shall prevent any Commitment Party from disclosing any such information (a) pursuant to the order of any court or administrative agency or otherwise as required by applicable law or regulation or as requested by a governmental authority (in which case such Commitment Party, to the extent permitted by law and except with respect to any audit or examination conducted by bank accountants or any governmental bank authority exercising examination or regulatory authority, agrees to inform you promptly thereof), (b) upon the request or demand of any regulatory authority having jurisdiction over such Commitment Party or any of its affiliates, (c) to the extent that such information becomes publicly available other than by reason of disclosure by any Commitment Party in violation of this paragraph, (d) to the extent that such information is received by any Commitment Party from a third party that is not, in each case to such Commitment Party’s knowledge, (i) in such third party’s possession illegally or (ii) subject to confidentiality obligations to you, your subsidiaries or the Acquired Business, (e) to the extent that such information is independently developed by any Commitment Party, (f) to any of the Commitment Parties’ affiliates and any of their respective employees, legal counsel, independent auditors and other experts or agents who need to know such information in connection with the Facility and are informed of the confidential nature of such information, (g) to prospective Lenders, participants or assignees of obligations under the Facility, in each case who agree to be bound by the terms of this paragraph (or language substantially similar to this paragraph), to service providers to the Commitment Parties in connection with the administration and management of the Facility and to market data collectors and similar service providers to the lending industries or (h) for the purposes of establishing any appropriate defense or in connection with the exercise of any rights or remedies. The Commitment Parties’ obligations under this paragraph shall automatically terminate and be superseded by the confidentiality provisions in the Operative Documents upon the execution and delivery thereof and, in the event the Operative Documents have not theretofore been executed and delivered, shall expire on the date occurring 24 months after the date hereof.

You acknowledge that neither any of the Commitment Parties nor any of their affiliates provide accounting, tax or legal advice. You further acknowledge that the Commitment Parties and their affiliates may be providing debt financing, equity capital or other services (including, without limitation, financial advisory services) to other persons in respect of which you, the Acquired Business and your and its respective affiliates may have conflicting interests regarding the transactions described herein and otherwise. You also acknowledge that none of the Commitment Parties or their affiliates has any obligation to use in connection with the transactions contemplated by this Commitment Letter, or to furnish to you, confidential information obtained by them from other persons. As you know, the Commitment Parties and/or their affiliates are full service securities firms engaged, either directly or through their affiliates, in various activities, including securities trading, commodities trading, investment management, financing and brokerage activities and financial planning and benefits counseling for both companies and individuals. In the ordinary course of these activities, the Commitment Parties and their respective affiliates actively engage in commodities trading or may trade the debt and equity securities (or related derivative securities) and financial instruments (including bank loans and other obligations) of the Borrower and other companies which may be the subject of the arrangements contemplated by this Commitment Letter for their own account and for the accounts of their customers and may at any time hold long and short positions in such securities. The Commitment Parties or their affiliates also co-invest with, make direct investments in, and invest or co-invest client monies in or with funds or other investment vehicles managed by other parties, and such funds or other investment vehicles may trade or make investments in securities of you, the Acquired Business or other companies which may be the subject of the arrangements contemplated by this Commitment Letter or engage in commodities trading with any thereof.

Section 9. Representations and Warranties.

Subject to Section 3 hereof, the accuracy of which shall not be a condition to the commitments hereunder or the initial effectiveness of the commitments under the Facility on the Closing Date, the Borrower represents and warrants (which representation and warranty, in the case of any information relating to the Acquired Business prior to the Acquisition, is to the best of the Borrower’s knowledge) that (i) all written information, other than Projections (as defined below), other forward-looking information and information of a general economic or industry-specific nature, that has been or will hereafter be made available to any of the Commitment Parties, any Lender or any potential Lender by or on behalf of the Borrower or any of its representatives in connection with the Transactions (the “Information”) is and will be, when furnished, true and correct in all material respects and does not and will not, taken as a whole, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein not materially misleading in light of the circumstances under which such statements were or are made and (ii) all financial projections, if any, that have been or will be prepared by or on behalf of the Borrower and made available to any of the Commitment Parties, any Lender or any potential Lender (the “Projections”) have been or will be prepared in good faith based upon assumptions that are believed by you to be reasonable at the time made and at the time the related financial projections are made available (it being understood that such Projections are as to future events and are not to be viewed as facts, that actual results during the period or periods covered by any such Projections may differ significantly from the projected results and that such differences may be material, that such Projections are subject to significant uncertainties and contingencies many of which are beyond your control and that no assurance can be given that the projected results will be realized). If, at any time from the date hereof until the later of the Closing Date and the Syndication Date, you become aware that any of the representations and warranties in the preceding sentence would be incorrect in any material respect if the Information or Projections were being furnished, and such representations and warranties were being made, at such time, then you agree to (or, with respect to any such Information or Projections relating to the Acquired Business or its operations or assets, use your commercially reasonable efforts to cause the Acquired Business to) promptly supplement the Information and/or Projections so that (with respect to Information or Projections relating to the Acquired Business or its operations or assets, to the best of your knowledge; and if otherwise, without qualification) the representations and warranties contained in this paragraph remain true and correct in all material respects under those circumstances.

In arranging and syndicating the Facility, the Commitment Parties will be entitled to use, and to rely on the representations and warranties in the preceding paragraph relating to, any information furnished to us by or on behalf of the Borrower and its affiliates without responsibility for independent verification thereof.

Section 10. Assignments.

The Borrower may not assign or delegate any of its rights or obligations under this Commitment Letter or the Fee Letter without our prior written consent, and any attempted assignment without such consent shall be null and void. No Commitment Party may assign or delegate any of its rights or obligations under this Commitment Letter or its commitment hereunder (except to one or more of its affiliates) other than as expressly permitted hereunder without the Borrower’s prior written consent; provided that any assignments to an affiliate will not relieve a Commitment Party from any of its obligations hereunder unless and until the Facility shall have become effective and such affiliate shall have funded on the Closing Date the portion of the commitment under the Facility so assigned; provided, further, that, notwithstanding anything in this Section 10, Goldman Sachs Bank USA may assign its rights and obligations hereunder, including its commitments and other agreements hereunder, in whole or in part, to Goldman Sachs Lending Partners LLC (and shall be relieved of its obligations hereunder to the extent of any such assignment).

Section 11. Amendments.

Neither this Commitment Letter nor the Fee Letter may be amended or any provision hereof waived or modified except by an instrument in writing signed by each party hereto or thereto, as applicable.

Section 12. Governing Law, Etc.

This Commitment Letter (and any claim, controversy or dispute arising under or related to any of the foregoing, whether based on contract, tort or otherwise) shall be governed by, and construed in accordance with, the law of the State of New York, without giving effect to any conflicts of law principles which would result in the application of the laws of another state; provided, however, that (A) the interpretation of the definition of “Material Adverse Effect” (as defined in the Acquisition Agreement) (and whether or not a Material Adverse Effect has occurred), (B) the determination of the accuracy of any Acquired Business Representation and whether as a result of any inaccuracy thereof you have the right (without regard to any notice requirement) to terminate your obligations (or to refuse to consummate the Acquisition) under the Acquisition Agreement and (C) the determination of whether the Acquisition has been consummated in accordance with the terms of the Acquisition Agreement (in each case without regard to the principles of conflicts of laws thereof, to the extent the same are not mandatorily applicable by statute and would require or permit the application of the law of another jurisdiction), in each case, shall be governed by, and construed in accordance with, the laws of Delaware.

Each party hereto irrevocably waives all right to trial by jury in any action, proceeding or counterclaim (whether based on contract, tort or otherwise) arising out of or relating to this Commitment Letter, the Fee Letter, the Operative Documents, the transactions contemplated hereby or thereby or the actions of the parties hereto or any of their affiliates in the negotiation, performance or enforcement of this Commitment Letter, the Fee Letter or the Operative Documents.

Each of the parties hereto irrevocably and unconditionally submits to the exclusive jurisdiction of any state or federal court sitting in The City of New York, Borough of Manhattan, over any suit, action or proceeding arising out of or relating to this Commitment Letter, the Fee Letter, the Operative Documents, the transactions contemplated hereby or thereby or the actions of the parties hereto or thereto or any of their affiliates in the negotiation, performance or enforcement of this Commitment Letter, the Fee Letter or the Operative Documents, and agrees that all claims in respect of any such action or proceeding shall be brought, heard and determined only in such New York State court or, to the extent permitted by law, in such federal court. Service of any process, summons, notice or document by registered mail addressed to any such party shall be effective service of process against such person for any suit, action or proceeding brought in any such court. Each of the parties hereto irrevocably and unconditionally waives any objection to the laying of venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding has been brought in an inconvenient forum. A final judgment in any such suit, action or proceeding brought in any such court may be enforced in any other courts to whose jurisdiction such party is or may be subject by suit upon judgment.

Section 13. Payments.

All payments under this Commitment Letter and the Fee Letter will, except as otherwise provided herein, be made in U.S. Dollars in New York, New York.

To the fullest extent permitted by law, the Borrower will make all payments under this Commitment Letter and the Fee Letter regardless of any defense or counterclaim, including, without limitation, any defense or counterclaim based on any law, rule or policy which is now or hereafter promulgated by any governmental authority or regulatory body and which may adversely affect the Borrower’s obligation to make, or the right of the Commitment Parties to receive, such payments.

Section 14. Miscellaneous.

This Commitment Letter and the Fee Letter contain the entire agreement between the parties relating to the subject matter hereof and thereof and supersede all oral statements and prior writings with respect thereto. Section headings herein are for convenience only and are not a part of this Commitment Letter. This Commitment Letter and the Fee Letter are solely for the benefit of the parties hereto and thereto (and Indemnified Persons, to the extent set forth in Section 6), and no other person shall acquire or have any rights under or by virtue of this Commitment Letter or the Fee Letter. This Commitment Letter is not intended to create a fiduciary relationship among the parties hereto, and the Borrower waives, to the fullest extent permitted by law, any claims it may have against any of the Commitment Parties or any of their affiliates for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the transactions contemplated by this Commitment Letter and agrees that none of the Commitment Parties or any of their affiliates shall have any liability (whether direct or indirect) to the Borrower in respect of such a fiduciary duty claim or to any person asserting such a fiduciary duty claim on behalf of or in right of the Borrower. Any and all services to be provided by any of the Commitment Parties hereunder may be performed, and any and all rights of any of the Commitment Parties hereunder may be exercised, by or through any of such Commitment Party’s affiliates and branches and, in connection with the provision of such services, each Commitment Party may exchange with such affiliates and branches information concerning the Borrower and the other companies that may be the subject of the transactions contemplated by this Commitment Letter and, to the extent so employed, such affiliates and branches shall be entitled to the benefits afforded to the Commitment Parties hereunder, subject to the confidentiality provisions herein.

The indemnification, compensation, reimbursement, sharing of information, absence of fiduciary relationships, jurisdiction, governing law, venue, service of process, waiver of jury trial, syndication, market flex and confidentiality provisions contained herein and in the Fee Letter shall remain in full force and effect regardless of whether the Operative Documents shall be executed and delivered and notwithstanding the termination or expiration of this Commitment Letter or the Commitment Parties’ commitments hereunder; provided that your obligations under this Commitment Letter (other than your obligations with respect to (a) assistance to be provided in connection with the syndication thereof (including supplementing and/or correcting Information and Projections) prior to the Syndication Date and (b) confidentiality) shall automatically terminate and be superseded by the provisions of the Operative Documents upon the initial effectiveness thereunder, in each case solely to the extent covered thereby with retroactive application to the date hereof.

We hereby notify you that pursuant to the requirements of the USA Patriot Act, Title III of Pub. L. 107-56 (signed into law October 26, 2001) (the “Patriot Act”) and 31 C.F.R. § 1010.230 (the “Beneficial Ownership Regulation”), we and the other Lenders may be required to obtain, verify and record information that identifies the borrower and each guarantor under the Operative Documents, which information includes the name, address and tax identification number and other customary information regarding any such borrower or guarantor that will allow us and the other Lenders to identify any such borrower or guarantor in accordance with the Patriot Act and the Beneficial Ownership Regulation. We and the other Lenders may also request corporate formation documents, or other forms of identification, to verify the information provided. This notice is given in accordance with the requirements of the Patriot Act and the Beneficial Ownership Regulation and is effective as to each Lender. The Borrower hereby acknowledges and agrees that the Commitment Parties shall be permitted to share any or all such information with the Lenders.

If any term, provision, covenant or restriction contained in this Commitment Letter is held by a court of competent jurisdiction to be invalid, void or unenforceable or against public policy, the remainder of the terms, provisions, covenants and restrictions contained herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated. The parties hereto shall endeavor in good faith negotiations to replace the invalid, void or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, void or unenforceable provisions.

This Commitment Letter may be executed in counterparts, each of which will be deemed an original, but all of which taken together will constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Commitment Letter by facsimile or electronic (pdf) transmission shall be as effective as delivery of a manually executed counterpart hereof.

If the foregoing correctly sets forth our agreement with you, please indicate your acceptance of the terms of this Commitment Letter and of the Fee Letter by returning executed counterparts to this Commitment Letter and the Fee Letter to Mr. Stuart N. Berman (on behalf of the Commitment Parties), Citibank, N.A., 730 Veterans Memorial Highway, Hauppauge, New York 11788 (or by electronic (pdf) transmission to ***@***) at or before 11:59 p.m. (New York City time) on January 29, 2020. If you do not return such executed counterparts prior to the date and time provided above, the commitment and other obligations of the Commitment Parties set forth in this Commitment Letter will automatically terminate. Please arrange for the executed originals to follow by next-day courier.

Very truly yours,

CITIBANK, N.A.

	By:	/s/ Stuart N. Berman
		Name:	Stuart N. Berman
		Title:	Authorized Signatory