Execution Version

 

October 5, 2026

 

Square Acquisition Merger Sub II, LLC

c/o Sequence AI Holdings, Inc.

300 Vesey St.

New York, NY 10282

Attention: Michael Lee, Jack Marren, Zach Blitzer and Ben Gendelman

PROJECT SPARK

$500,000,000 Revolving Facility

$2,750,000,000 First Lien Term Facility

$415,000,000 First Lien Delayed Draw Term Facility

 

Ladies and Gentlemen:

 

You have advised Morgan Stanley Senior Funding, Inc. (together with its designated affiliates, “MSSF”), Barclays Bank PLC (“Barclays”), Wells Fargo Bank, National Association (“Wells Fargo Bank”), Wells Fargo Securities, LLC (“Wells Fargo Securities” and, together with Wells Fargo Bank, “Wells Fargo”), Blackstone Alternative Credit Advisors LP, on behalf of funds, clients and accounts advised, sub-advised or administered by it or its affiliates (“Blackstone”), Canadian Imperial Bank of Commerce (“CIBC Bank”), CIBC World Markets Corp. (“CIBC World Markets” and, together with CIBC Bank, “CIBC”), Capital One, National Association (“CapOne”), Goldman Sachs Bank USA (“GS”), Deutsche Bank AG New York Branch (“DBNY”), Deutsche Bank Securities Inc. (“DBSI” and, together with DBNY, “DB”), The Toronto-Dominion Bank, New York Branch (“TD Bank”), TD Securities (USA) LLC (“TD Securities” and, together with TD Bank, “TD”), Bank of Montreal (“BofM”), BMO Capital Markets Corp. (“BMOCM” and, together with BofM, “BMO”), Jefferies Finance LLC (“Jefferies”), Pinnacle Bank, a Tennessee Bank, dba Synovus Bank (“Pinnacle”), Ares Capital Management LLC (solely in its capacity as manager to certain funds and accounts, “Ares”), Raymond James Bank (“RJB”), Raymond James & Associates, Inc. (“RJA” and, together with RJB, “RJ”), and Valley Bank (“Valley”, and, together with MSSF, Barclays, Wells Fargo, Blackstone, CIBC, CapOne, GS, DB, TD, BofM, Jefferies, Pinnacle, Ares and RJ, “we” or “us” and each, a “Commitment Party”) that Square Acquisition Merger Sub II, LLC, a Delaware limited liability company (“you” or the “Buyer”) formed at the direction of Sequence AI Holdings, Inc. and DFO Private Investments, L.P., a Delaware limited partnership, in each case, and/or its controlled affiliates (collectively, and together with any investment funds controlled or advised by the foregoing entities, the “Sponsor”), intends, directly or indirectly, to acquire a business previously identified to us and code named “Spark” (the “Target” and, together with its subsidiaries, if any, the “Acquired Business”) and to consummate the other transactions described in Exhibit A hereto.  Capitalized terms used but not defined herein have the meanings assigned to them in the Exhibits and other attachments hereto.

This Amended and Restated Commitment Letter (together with the Exhibits and other attachments hereto, this “Commitment Letter”) amends and restates that certain Commitment Letter, dated September 14, 2026 (the “Original Signing Date” and such letter, the “Original Commitment Letter”), by and among you and the Commitment Parties party thereto, and this Commitment Letter supersedes and replaces in its entirety the Original Commitment Letter which shall be of no further force or effect; provided, that your expense reimbursement, confidentiality and indemnification obligations hereunder shall apply from the Original Signing Date. This Commitment Letter and the Fee Letter (as defined in Section 5) are referred to herein as the “Commitment Papers.”

1.           Commitments.

 

In connection with the Transactions, each Commitment Party commits to provide that percentage of the applicable Facility set forth opposite its name on Schedule I (the “Commitment Schedule”) to this Commitment Letter (each Commitment Party providing such a commitment, an “Initial Lender”).

 

The Facilities will contain the terms set forth on the Term Sheet attached to this Commitment Letter, and the commitments of each Initial Lender are subject only to the satisfaction or waiver by the Lead Arrangers of the Financing Conditions (as defined below in Section 6).  The commitments of the Commitment Parties with respect to each Facility shall be on a several, and not joint and several, basis.

 

2.           Titles and Roles.

 

In connection with the Transactions, each Commitment Party (acting alone or through or with affiliates selected by it) will act with and have the title(s) and in the role(s) set forth opposite its name with respect to the applicable Facility on the Commitment Schedule.  Each Commitment Party identified on the Commitment Schedule as a Lead Arranger for any Facility is referred to in the Commitment Papers as a “Lead Arranger” and collectively as the “Lead Arrangers”.  Each Commitment Party appointed as a “Left Lead Arranger” for each Facility on the Commitment Schedule will appear on the top left of the cover page of all marketing materials for such Facility and will hold the roles and responsibilities conventionally understood to be associated with such name placement; provided that the parties hereto agree that notwithstanding any provision of this Commitment Letter, (i) Moelis and Company (“Moelis”) is named as Joint Bookrunner and Joint Lead Arranger for recognition purposes only, and in its capacity as such shall have no rights, duties, responsibilities, liabilities or economics with respect to this Commitment Letter, the Fee Letter or the Facilities Documentation, (ii) Blackstone and Ares (the “Non-Arranger Commitment Parties”) will be Commitment Parties but will not be Joint Bookrunners, Joint Lead Arrangers or have any other title in respect of the Facilities and (iii) RJA will be a Joint Bookrunner and Joint Lead Arranger but will not be a Commitment Party.  MSSF shall be appointed as sole administrative agent and collateral agent for the Facilities.

 

On or prior to the date that is 20 business days after the Original Signing Date, you will have the right (the “Private Placement Option”), which right may be exercised only once, to reallocate $500,000,000 (but not less than $500,000,000) of Initial First Lien Term Facility commitments to privately placed junior lien or unsecured loans or notes (the “Private Placement Debt”).  The Private Placement Debt:

 

 

 

 

 

 

We agree to execute such documentation as reasonably necessary or advisable to effect the reduction of commitments and any additional matters that may be required in connection with your exercise of the Private Placement Option.  Upon the exercise of the Private Placement Option, Initial First Lien Term Facility commitments, in the amount of the commitments for the Private Placement Debt, shall be automatically reduced and terminated among the Commitment Parties on a pro rata basis.

 

Other than as provided above or as may be separately agreed with the Commitment Parties, no other agents, co-agents, lead arrangers, co-arrangers, bookrunners, managers or co-managers will be appointed, no other titles will be awarded and no compensation to any of the foregoing or any Initial Lender (other than compensation expressly contemplated by the Commitment Papers) will be paid in order to obtain a commitment with respect to any Facility unless you and we agree (it being agreed that acquisition advisory fees, if any, shall be deemed not to be in connection with the Facilities or the commitments under this Commitment Letter).

 

Notwithstanding anything herein or in any of the term sheets to the contrary, (a) Ares shall not act as an underwriter, arranger, trustee, agent or in a similar role or otherwise perform any such services hereunder or receive any fees for such services, and (b) the role of Ares hereunder and under the term sheets shall be limited to their commitments to provide debt financing as a principal pursuant to the terms hereof.

 

3.           Syndication.

 

The Lead Arrangers for the Initial First Lien Term Facility and the Initial First Lien DDTL Facility reserve the right, prior to or after the execution of the Facilities Documentation for each such Facility, to syndicate all or a portion of the commitments with respect to such Facility (collectively, the “Syndicated Facilities”), to a group of banks, financial institutions and other institutional lenders that are identified by such Lead Arrangers and subject to your prior written consent, such consent not to be unreasonably withheld or delayed (together with the Initial Lenders, the “Lenders”).  The Lead Arrangers will syndicate the Syndicated Facilities to those banks, financial institutions, other institutional lenders and other persons identified by you in writing that agree to join the syndicate (collectively, the “Relationship Lenders”).  The Lead Arrangers will not syndicate to the following entities (collectively, the “Disqualified Lenders”):

 

 

 

 

No Disqualified Lender may become a Lender or have any commitment or right (including a participation right) with respect to any Facility. To the extent persons are identified as Disqualified Lenders in writing by you after the Original Signing Date (or, if after the Closing Date, by you to the Administrative Agent) pursuant to clauses (a), (b) or (c) above (or otherwise become a Disqualified Lender after the Original Signing Date), the inclusion of such persons as Disqualified Lenders (or such person becoming a Disqualified Lender) shall not retroactively invalidate prior assignments or participations to such person that were made in compliance with applicable assignment or participation provisions in effect at such time; provided that the Borrower shall have the benefit of “yank-a-bank” provisions with respect to such persons.  No managed fund or managed account operating as part of the credit or insurance division of Blackstone Inc. shall constitute a Disqualified Lender.

 

Notwithstanding the Lead Arrangers’ right to syndicate the Facilities and receive commitments with respect thereto,

 

(i)         no Initial Lender will be relieved, released or novated from its obligations under the Commitment Papers in connection with any syndication, assignment or participation of a Facility, including its commitments and obligations to fund such Facility, until after the initial funding under such Facility has occurred or with respect to a revolving Facility the effectiveness of commitments thereunder;

 

(ii)          no assignment or novation will become effective (as between you and the Initial Lenders) with respect to all or any portion of an Initial Lender’s commitments in respect of a Facility until the initial funding of such Facility has occurred or with respect to the Initial Revolving Facility, the effectiveness of commitments thereunder and

 

(iii)        unless you otherwise expressly agree in writing, the Initial Lenders will retain exclusive control over all rights and obligations with respect to their commitments in respect of each Facility, including all rights with respect to consents, modifications, supplements, waivers and amendments, until the initial funding under the Facilities has occurred or with respect to the Initial Revolving Facility, the effectiveness of commitments thereunder.

 

Each Lead Arranger intends to commence syndication efforts promptly upon the execution of the Original Commitment Letter and, as part of its syndication efforts, it is such Lead Arranger’s intent to have Lenders commit to the Syndicated Facilities prior to the Closing Date.  You agree to assist the Lead Arrangers in completing a Successful Syndication (as defined in the Fee Letter) until the date that is the earlier of (a) the Closing Date and (b) the date on which a Successful Syndication is achieved (such earlier date, the “Syndication Date”).  Such assistance shall be limited to the following, upon request:

 

 

 

 

 

 

Until the Syndication Date,

 

 

 

For the avoidance of doubt, you will not be required to provide (or to cause any person to provide) (i) any information not reasonably available to you or the Acquired Business under your current reporting systems or under the current reporting systems of the Acquired Business or financial information you or the Acquired Business do not maintain in the ordinary course of business or (ii) any trade secrets or information to the extent that the provision thereof would violate any law, rule or regulation, or any obligation of confidentiality binding upon, or waive any privilege that may be asserted by, you, the Acquired Business or any of your or its respective affiliates; provided that, in the event that you do not provide information in reliance on this sentence, you shall provide notice to the Lead Arrangers promptly upon obtaining knowledge that such information is being withheld, and you shall use your commercially reasonable efforts to communicate, to the extent both feasible and permitted under applicable law, rule, regulation or confidentiality obligation, or without waiving such privilege, as applicable, the applicable information.

 

Neither the commencement nor the completion of any syndication of the Facilities (including the Successful Syndication), nor the receipt of the ratings described above, nor compliance with the foregoing provisions of this Section 3, will constitute a condition to the commitments of the Initial Lenders hereunder.  We acknowledge that neither the Acquired Business nor its affiliates have agreed to be restricted from incurring debt or liens prior to the date or time that the Acquisition is required to be consummated pursuant to the terms of the Acquisition Agreement (the “Acquisition Date”), except as specifically set forth in the Acquisition Agreement, and that the Acquired Business is obligated to assist with respect to the Facilities and any other financing for the Transactions only to the extent set forth in the Acquisition Agreement.  Your obligations under the Commitment Papers to use “commercially reasonable efforts” (a) to take any action shall not require you or any of your affiliates to make any equity contribution in excess of the Minimum Equity Contribution or to incur any fee, expense or liability not specifically contemplated by the Commitment Papers (giving effect to any “market flex” provisions) and (b) to cause the Acquired Business or its management or affiliates to take (or to refrain from taking) any action is subject to the terms of the Acquisition Agreement, and it will not require you, under any circumstances, to commence any litigation or to take any action that is in contravention of the terms of the Acquisition Agreement, including terminating the Acquisition Agreement, to take any action that would reasonably be expected to permit the Acquisition Agreement to be terminated or to commence litigation with respect to the Acquisition Agreement.  Prior to the Acquisition Date, your obligations to cause the Acquired Business to take (or refrain from taking) any action shall be limited to your commercially reasonable efforts.

 

Except as set forth above, the Lead Arrangers will, in consultation with you, manage all aspects of any syndication of the Syndicated Facilities, including (a) decisions as to the selection of institutions to be approached, which will include Relationship Lenders, if any, and exclude Disqualified Lenders, (b) subject to your prior written consent (such consent not to be unreasonably withheld or delayed), when they will be approached, (c) when their commitments will be accepted, (d) which institutions will participate (which will include Relationship Lenders, if any, and exclude Disqualified Lenders), (e) subject to your prior written consent (such consent not to be unreasonably withheld or delayed), the allocation of the commitments among the Lenders and (f) the amount and distribution of fees among the Lenders.

 

4.           Information.

 

You hereby represent (prior to the Closing Date, with respect to information provided by or concerning the Acquired Business or its operations or assets, to your knowledge) that,

 

 

 

You agree that, if at any time prior to the Closing Date, you become aware that any of the representations in the preceding sentence would be incorrect in any material respect if the Information and Projections were being furnished, and such representations were being made, at such time, then you will, and will use your commercially reasonable efforts to cause the Acquired Business to, supplement the Information and the Projections so that such representations will be correct in all material respects under those circumstances; it being understood, in each case, that such supplementation shall cure any breach of such representation for all purposes.  For the avoidance of doubt, the accuracy of the representations set forth above in this Section 4 is not a condition precedent to the commitments hereunder or the funding of the Facilities on the Closing Date.

 

You acknowledge that (a) we may make available the Information and the Projections to a proposed syndicate of Lenders (other than Disqualified Lenders) by posting the Information or the Projections on IntraLinks or another similar electronic system (the “Platform”), in each case, subject to a market standard “click through” or similar confidentiality agreement (reasonably approved by you), and (b) certain Lenders (each, a “Public Lender”) may not wish to receive information with respect to you, Holdings, the Acquired Business, and your and its respective subsidiaries or your and their respective securities that is not publicly available or has not been (or would not be expected to be) made available to investors in connection with a Rule 144A or public offering of the Borrower’s or the Acquired Business’s securities (“material non-public information”).  At the request of the Lead Arrangers, you agree to assist us in preparing an additional version of the Confidential Information Memorandum (the public-side version) to be used by Public Lenders, that will include only information that is either publicly available, information that you would expect to be made available to investors in connection with a Rule 144A or public offering of the Borrower’s or the Acquired Business’s securities, or not material with respect to you, Holdings, the Acquired Business or your or its respective subsidiaries or your and its respective securities for purposes of United States federal and state securities laws. Information excluded from such public-side version is referred to herein as material non-public information.  It is understood that in connection with the assistance described above, (i) to the extent reasonably requested by the Lead Arrangers, you agree to deliver (and to use your commercially reasonable efforts to cause the Acquired Business to deliver), a customary authorization letter to be included in each Confidential Information Memorandum (provided, that any representation in such authorization letter will be consistent with the representations set forth in the preceding paragraph of this Commitment Letter) that authorizes the distribution of such Confidential Information Memorandum to prospective Lenders (other than Disqualified Lenders) and confirms that the public-side version does not include material non-public information; (ii) each Confidential Information Memorandum will exculpate you, Holdings, the Sponsor, the Acquired Business, and us and your and our respective affiliates with respect to the content and the use and misuse of such Confidential Information Memorandum or any related marketing material by the recipients thereof; (iii) the public-side version of the Confidential Information Memorandum and information provided to Public Lenders may include the following information, except to the extent you notify us to the contrary (prior to their distribution) and provided that you have been given a reasonable opportunity to review such public-side version and comply with U.S. Securities and Exchange Commission disclosure requirements: (A) drafts and final Facilities Documentation, related definitive documentation (if any) and customary marketing term sheets that have been approved by you (such approval not to be unreasonably withheld or delayed), (B) administrative materials prepared by the Lead Arrangers for prospective Lenders (such as a lender meeting invitation, allocations and funding and closing memoranda) and (C) notification of changes in the terms of the Facilities; (iv) at our request, you agree to identify information to be distributed to Public Lenders by clearly and conspicuously marking the same as “PUBLIC”; and (v) we will be entitled to treat any Information and Projections that are not specifically identified as “PUBLIC” as being suitable for posting only on the portion of the Platform not available to or accessible by Public Lenders.

 

5.           Fees.

 

As consideration for the commitments of each Initial Lender and each Lead Arranger’s and other agents’ agreements to perform the services described herein, you agree to pay the fees set forth in the Amended and Restated Fee Letter dated the date hereof and delivered in connection with the Facilities (the “Fee Letter”).  Once paid, such fees will not be refundable under any circumstances, except as otherwise contemplated by the Fee Letter or otherwise agreed in writing by the parties hereto.  The Fee Letter amends and restates that certain Fee Letter, dated the Original Signing Date (such letter, the “Original Fee Letter”), by and among you and the Commitment Parties party thereto, and the Fee Letter supersedes and replaces in its entirety the Original Fee Letter, which is of no further force or effect.

 

6.           Conditions Precedent.

 

The commitments of each Initial Lender with respect to the Facilities and each Lead Arranger’s and each agent’s agreements to perform the services described herein are subject to the satisfaction (or waiver by the Lead Arrangers) of only the conditions precedent expressly set forth on the Exhibit to this Commitment Letter labeled “Conditions Annex” (such conditions, the “Financing Conditions” and such exhibit, the “Conditions Annex”).

 

Notwithstanding anything in the Commitment Papers, the Original Commitment Letter, the Original Fee Letter, the Facilities Documentation or any other agreement or other undertaking concerning the financing of the Transactions to the contrary, the following provisions (the “Certain Funds Provisions”) will apply to the Initial Funding of the Facilities:

 

(a)         the only representations and warranties that will be made on the Closing Date and the making and accuracy of which will be a condition to the Initial Funding of the Facilities on the Closing Date will be the Acquisition Agreement Representations and the Specified Representations (each as defined below); provided, that (i) a failure of an Acquisition Agreement Representation to be accurate will not result in a failure of a Financing Condition, unless such failure results in a failure of a condition precedent to your obligation to consummate the Acquisition pursuant to the terms of the Acquisition Agreement or such failure gives you the right (taking into account any notice and cure provisions) to terminate your obligation to consummate the Acquisition pursuant to the terms of the Acquisition Agreement, and (ii) the only representations and warranties made in connection with the Transactions on the Closing Date the inaccuracy of which could result in a default or event of default under the Facilities Documentation are the Specified Representations;

 

(b)          the terms of the Facilities Documentation and the Closing Deliverables will be subject to the Documentation Principles, will contain no conditions to the Initial Funding of the Facilities other than the Financing Conditions, and in any event will be in a form such that they do not impair the Initial Funding of the Facilities on the Closing Date if the Financing Conditions are satisfied (or waived by the Lead Arrangers); it being understood that, (i) the attachment and perfection of any lien on Collateral (other than Collateral consisting of personal property in which a valid lien may be created pursuant to Article 9 of the New York UCC, “Personal Property Collateral”) securing a Facility is not a condition precedent to the Initial Funding of any Facility, will not affect the size of any Facility and, except to the extent expressly required under this Section 6 of the Commitment Letter and the Conditions Annex, the failure of any lien on the Collateral to attach or be perfected on the Closing Date will not result in a default or event of default under any Facility and (ii) if any lien on Collateral securing a secured Facility does not attach or become perfected on the Closing Date after your use of commercially reasonable efforts to do so, such attachment or such perfection will not constitute a condition precedent to the Initial Funding of any Facility and will not affect the size of any Facility and will not result in a default or event of default under any Facility, but will be required (x) with respect to any equity securities (if any) of (1) the Initial Borrower and the Borrower, on the Closing Date and (2) of the Subsidiaries of the Borrower constituting Collateral, within 10 business days after the Closing Date (subject to extensions agreed to by the Administrative Agent) or (y) with respect to any other Collateral, within 90 days after the Closing Date (subject to extensions agreed to by the Administrative Agent); provided that the foregoing will not limit the conditions precedent set forth in Sections 5(b) and 5(d) of the Conditions Annex requiring the authorization of “all asset” UCC filings and delivery of certain equity securities constituting Collateral, in each case, with customary stock powers executed in blank;

 

(c)          there are no conditions (implied or otherwise) to the commitments and agreements hereunder (including compliance with the terms of the Commitment Papers, the Original Commitment Letter, the Original Fee Letter or the Facilities Documentation), other than the Financing Conditions, and upon satisfaction (or waiver by the Lead Arrangers) of the Financing Conditions, each Administrative Agent, each Collateral Agent, each Lender (as defined below) and each other party thereto will execute and deliver the Facilities Documentation to which it is a party and the Initial Funding under the Facilities will occur;

 

(d)         to the extent any Lender requires any information with respect to “know your customer” or anti-money laundering rules and regulations to be certified or otherwise to be accompanied by an attestation as to its validity, correctness or completeness, a certification or attestation by an officer of the Initial Borrower or of the Acquired Business shall be deemed to satisfy such certification or attestation requirement; and

 

(e)         the execution and delivery by the Acquired Business (the “Target Loan Parties”) of the Facilities Documentation to which it is required to be a party on the Closing Date shall be accomplished under escrow arrangements pursuant to which the Target Loan Parties’ signature pages are provided to the Administrative Agent for each Facility before (or coincident with) the time the Acquisition is consummated in accordance with the Acquisition Agreement (the “Acquisition Effective Time”), and such signature pages (and the Facilities Documentation and related deliverables to which the Target Loan Parties are parties) are automatically released from escrow to such Administrative Agent concurrently with the Acquisition Effective Time and the adoption of related authorizing consents and resolutions.  The Target Loan Parties’ signature pages may be executed by individuals that will be officers, directors, managers, members or partners of the applicable Target Loan Party (or of one or more controlling parent or general partner entities of the applicable Target Loan Party) upon consummation of the Acquisition, whether or not such individuals hold such office of such entities prior to the consummation of the Acquisition so long as such individuals are authorized in such capacity at the time such signature pages are released from the applicable escrow arrangements.

 

“Acquisition Agreement Representations” means such of the representations and warranties made by or with respect to the Acquired Business in the Acquisition Agreement that are material to the interests of the Lenders (in their capacities as such).

 

“Specified Representations” means the representations and warranties made by the Initial Borrower, Holdings, the Borrower and the Subsidiary Guarantors set forth in the Facilities Documentation relating to their organizational existence, organizational power and authority (only as to execution, delivery and performance of the applicable Facilities Documentation and the extensions of credit thereunder), their due authorization, execution, delivery and enforceability (against them) of the applicable Facilities Documentation, solvency on a consolidated basis as of the Closing Date after giving effect to the Transactions (consistent with the solvency certificate attached to this Commitment Letter), no conflicts of Facilities Documentation with their charter documents (as in effect immediately after consummation of the Acquisition and the adoption of any related consents and resolutions), compliance of the Transactions with Federal Reserve margin regulations, the Investment Company Act and the Patriot Act, use of proceeds not violating the Patriot Act, OFAC, FCPA and applicable sanctions and anti-money laundering, anti-corruption and anti-terrorism laws and attachment and perfection of security interests in the Collateral (subject to Permitted Liens and the Certain Funds Provisions).

7.           Indemnification; Limitation of Liability; Expenses.

 

You agree to indemnify and hold harmless each Commitment Party and its affiliates and controlling persons and the respective officers, directors, employees, partners, agents and representatives of each of the foregoing and their successors and permitted assigns (each, an “Indemnified Person”) to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities and expenses, joint or several, excluding in each case lost profits, to which any such Indemnified Person may become subject arising out of, resulting from or in connection with the Commitment Papers, the Original Commitment Letter, the Original Fee Letter, the Transactions or the Facilities, or any claim, litigation, investigation or proceeding (each, an “Action”) relating to any of the foregoing, regardless of whether any such Indemnified Person is a party thereto and whether or not such Action is brought by or against you, your equity holders, affiliates, creditors or any other person, and to reimburse each such Indemnified Person, promptly after receipt of a written request, together with customary backup documentation in reasonable detail, for any reasonable and documented in reasonable detail out-of-pocket legal expenses (limited to one counsel for all Indemnified Persons taken as a whole and, if reasonably necessary, a single local counsel for all Indemnified Persons taken as a whole in each relevant jurisdiction (which may be a single local counsel acting in multiple jurisdictions) and, solely in the case of any actual or perceived conflict of interest between Indemnified Persons where the Indemnified Persons affected by such conflict inform you of such conflict, one additional counsel in each relevant jurisdiction to each group of affected Indemnified Persons similarly situated taken as a whole) or other reasonable and documented in reasonable detail out-of-pocket expenses incurred in connection with investigating or defending any of the foregoing; provided, that the foregoing indemnity will not, as to any Indemnified Person, apply to losses, claims, damages, liabilities or expenses to the extent (a) resulting from the willful misconduct, bad faith or gross negligence of an Indemnified Person or any Related Indemnified Persons of such Indemnified Person, (b) arising from a material breach of the obligations of an Indemnified Person or any Related Indemnified Persons of such Indemnified Person under the Commitment Papers, the Original Commitment Letter, the Original Fee Letter or the Facilities Documentation, including the failure to fund the Facilities upon satisfaction of the Financing Conditions (in the case of clauses (a) and (b), as determined by a court of competent jurisdiction in a final and non-appealable judgment), or (c) arising from any dispute solely among Indemnified Persons or any Related Indemnified Persons of the foregoing that do not arise out of an act or omission of the Borrower or its subsidiaries, other than any Actions against any Commitment Party in its capacity as, or in fulfilling its role as, a Lead Arranger, an Administrative Agent or other agency role under any Facility.

 

Notwithstanding the foregoing, each Indemnified Person shall be obligated to refund and to return promptly any and all amounts paid under the indemnification provisions of this Commitment Letter (or the Original Commitment Letter) to such Indemnified Person and/or its Related Indemnified Persons for any such losses, claims, damages, liabilities or expenses to the extent such Indemnified Person is not entitled to payment of such amounts in accordance with the terms hereof as finally determined by a final, non-appealable judgment of a court of competent jurisdiction, and, to the extent not a party hereto, the agreement of an Indemnified Person to this provision is a condition to the indemnity provided herein. Notwithstanding any other provision of this Commitment Letter or the Original Commitment Letter, except to the extent resulting from the willful misconduct, bad faith or gross negligence of (or material breach of the Commitment Papers, the Original Commitment Letter or the Original Fee Letter by) such Indemnified Person or any Related Indemnified Persons of the foregoing (as determined by a court of competent jurisdiction in a final and non-appealable judgment), no Indemnified Person will be liable for any damages arising from the use by others of information or other materials obtained through electronic, telecommunications or other information transmission systems (including the Platform) and neither any Indemnified Person, nor you or the Acquired Business (or any of their respective directors, officers, employees, controlling persons, affiliates or agents) will be liable for any indirect, special, punitive or consequential damages in connection with the Commitment Papers, the Original Commitment Letter, the Original Fee Letter, the Facilities, the Transactions (including the Facilities and the use of proceeds thereunder), or with respect to any activities or other transactions related to the Facilities; provided, that this sentence shall not limit your indemnification or reimbursement obligations set forth herein to the extent such special, indirect, punitive or consequential damages are included in any third party claim in connection with which such Indemnified Person is entitled to indemnification hereunder.  Notwithstanding anything in the Commitment Papers, the Original Commitment Letter or the Original Fee Letter, you will have no obligation to indemnify any Indemnified Person for income taxes (or similar taxes) incurred by such person in connection with the fees or other compensation such person received in connection with the Commitment Papers, the Original Commitment Letter or the Original Fee Letter; provided that this sentence shall not limit your indemnification obligations and other obligations with respect to withholding taxes and other taxes after the Closing Date to the extent set forth in the Facilities Documentation, and such obligations shall be governed by the terms of the Facilities Documentation.

 

You will not be liable for any settlement of any Action effected without your prior written consent (such consent not to be unreasonably withheld or delayed), but, if settled with your written consent or if there is a final judgment in any such Action, you agree to indemnify and hold harmless each Indemnified Person from and against any and all losses, claims, damages, liabilities and expenses by reason of such settlement or judgment in accordance with the indemnification provisions of this Commitment Letter.  You will not, without the prior written consent of an Indemnified Person, effect any settlement of any Action in respect of which indemnity could have been sought hereunder by such Indemnified Person unless such settlement (i) includes an unconditional release of such Indemnified Person from all liability on claims that are the subject matter of such Action and (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of such Indemnified Person.

 

For purposes hereof, a “Related Indemnified Person” of an Indemnified Person means (a) any controlling person or controlled affiliate of such Indemnified Person, (b) the respective directors, partners, officers, or employees of such Indemnified Person or any of its controlling persons or controlled affiliates and (c) the respective agents of such Indemnified Person or any of its controlling persons or controlled affiliates, in the case of this clause (c), acting at the instructions of such Indemnified Person, controlling person or such controlled affiliate.

 

Upon and subject to the occurrence of the Closing Date and the Initial Funding of the Facilities, you agree to reimburse each Commitment Party for its reasonable and documented in reasonable detail out-of-pocket expenses (including expenses of each Commitment Party’s due diligence investigation, syndication expenses, travel expenses and reasonable and documented out-of-pocket fees, disbursements and other charges of the single counsel to the Commitment Parties identified in the Term Sheet and, if reasonably necessary, of a single local counsel to the Commitment Parties identified to you prior to the Closing Date in each relevant jurisdiction, which may be a single local counsel acting in multiple jurisdictions), in each case, incurred solely in connection with due diligence with respect to the Transactions, the preparation, negotiation, execution and delivery of the Commitment Papers, the Original Commitment Letter, the Original Fee Letter and the Facilities Documentation (collectively, the “Expenses”).  For the avoidance of doubt, you will not be required to reimburse the Commitment Parties for any Expenses in the event the Closing Date does not occur. You acknowledge that we may receive a benefit, including a discount, credit or other accommodation, from any of such counsel based on the fees such counsel may receive on account of their relationship with us, including fees paid pursuant hereto.

 

8.           Sharing Information; Absence of Fiduciary Relationship; Affiliate Activities; Binding Obligations.

 

You acknowledge that each Commitment Party and its affiliates may be providing debt financing, equity capital or other services (including investment banking and financial advisory services, securities trading, hedging, financing and brokerage activities, and financial planning and benefits counseling) to other companies in respect of which you or the Acquired Business may have conflicting interests.  In particular, you acknowledge that MSSF, Barclays, Wells Fargo or, in each case, one of its affiliates is acting as a buy-side financial advisor to you in connection with the Transactions (in such capacity, a “Buy Side Advisor”). You agree not to assert or allege any claim based on an actual or potential conflict of interest arising or resulting from, on the one hand, the engagement of any Buy Side Advisor in such capacity and our obligations hereunder, on the other hand.  We will not furnish confidential information obtained from you by virtue of the transactions contemplated by this Commitment Letter (or the Original Commitment Letter) or our other relationships with you to such other companies.  You also acknowledge that we do not have any obligation to use, in connection with the transactions contemplated by this Commitment Letter, or to furnish to you, confidential information obtained by us or any of our respective affiliates from such other companies.

 

You further acknowledge and agree that (a) no fiduciary, advisory or agency relationship between you and any Commitment Party is intended to be or has been created in respect of any of the transactions contemplated by this Commitment Letter or the Original Commitment Letter, irrespective of whether such Commitment Party has advised or is advising you on other matters, (b) each Commitment Party, on the one hand, and you, on the other hand, have an arm’s-length business relationship that does not, directly or indirectly, give rise to, nor do you rely on, any fiduciary duty on the part of such Commitment Party, and you waive, to the fullest extent permitted by law, any claims you may have against us for breach of fiduciary duty or alleged breach of fiduciary duty and agree that we will have no liability (whether direct or indirect) to you in respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim on your behalf, including equity holders, employees or creditors, (c) you are capable of evaluating and understanding, and you understand and accept, the terms, risks and conditions of the transactions contemplated by this Commitment Letter and the Original Commitment Letter, (d) you have been advised that each Commitment Party and its affiliates are engaged in a broad range of transactions that may involve interests that differ from your and your affiliates’ interests and that such Commitment Party has no obligation to disclose such interests and transactions to you or your affiliates, (e) you have consulted your own legal, accounting, regulatory and tax advisors to the extent you have deemed appropriate, and (f) each Commitment Party has been, is and will be acting solely as a principal and, except as otherwise expressly agreed in writing by the relevant parties, has not been, is not and will not be acting as an advisor, agent or fiduciary for you, any of your affiliates or any other person or entity.  In addition, each Commitment Party may employ the services of its affiliates in providing certain services hereunder and may exchange with such affiliates, in connection therewith, information concerning you and the Acquired Business, and such affiliates will be entitled to the benefits afforded to, and subject to the obligations of (including, for the avoidance of doubt, confidentiality obligations), such Commitment Party under this Commitment Letter.

 

You further acknowledge that each Commitment Party and its affiliates may be a full service securities firm engaged in securities trading and brokerage activities, as well as providing investment banking and other financial services.  In the ordinary course of business, each Commitment Party may provide investment banking and other financial services to, and/or acquire, hold or sell, for their respective own accounts and the accounts of customers, equity, debt and other securities and financial instruments (including bank loans and other obligations) of you, the Acquired Business and the Sponsor and other companies with which you, the Acquired Business or the Sponsor may have commercial or other relationships.  With respect to any securities and/or financial instruments so held by each Commitment Party, its affiliates or any of its customers, all rights in respect of such securities and financial instruments, including any voting rights, will be exercised by the holder of the rights, in its sole discretion.

 

You further acknowledge and agree that you are responsible for making your own independent judgment with respect to the Transactions and the process leading thereto.  Additionally, you acknowledge and agree that we are not advising you as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction.  You will consult with your own advisors concerning such matters and will be responsible for making your own independent investigation and appraisal of the transactions contemplated hereby.

 

We represent and warrant that the Commitment Papers constitute our legally valid and binding obligation to provide services set forth herein and to fund the Facilities upon satisfaction or waiver of the Financing Conditions, in each case, enforceable at law and in equity in accordance with their terms.  You represent and warrant that the Commitment Papers constitute your legally valid and binding obligation, enforceable at law and in equity against you in accordance with their terms; provided, that nothing contained in the Commitment Papers obligates you or any of your affiliates to consummate any Transaction or to draw upon all or any portion of the Facilities.  No party hereto will take any position that is inconsistent with the foregoing representations and warranties.

 

9.           Assignments; Amendments; Governing Law, Etc.

 

This Commitment Letter and the commitments hereunder are not assignable (except (i) assignments by you to an affiliate that is a newly formed domestic “shell” company controlled by the Sponsor that consummates or intends to consummate the Acquisition, (ii) assignments by Blackstone of all or a portion of its rights and obligations hereunder to one or more of funds, accounts or clients managed or administered by it or its affiliates, (iii) assignments by the Commitment Parties to any of their affiliates, (iv) assignments by GS to Goldman Sachs Lending Partners LLC (and vice versa) and (v) any other assignment that occurs as a matter of law) without the prior written consent of each other party hereto, and any attempted assignment without such consent will be null and void.

 

This Commitment Letter is intended to be solely for the benefit of the parties hereto (and Indemnified Persons solely to the extent expressly set forth herein), is not intended to confer any benefits upon, or create any rights in favor of, any person other than the parties hereto (and Indemnified Persons solely to the extent expressly set forth herein) and is not intended to create a fiduciary relationship among the parties hereto.  Any and all services to be provided by each Commitment Party hereunder may be performed by or through any of its affiliates or branches, and such affiliates and branches will be entitled to the benefits afforded to and will be subject to the obligations of (including, for the avoidance of doubt, confidentiality obligations), such Commitment Party under this Commitment Letter.  Except as otherwise set forth herein, this Commitment Letter may not be amended or any provision hereof waived or modified except in a writing signed by each Commitment Party and you.  This Commitment Letter may be executed in any number of counterparts, each of which will be an original and all of which, when taken together, will constitute one agreement.  Delivery of an executed counterpart of a signature page of this Commitment Letter by facsimile or other electronic transmission (including in “.pdf” format) will be effective as delivery of a manually executed counterpart hereof. Section headings used herein are for convenience of reference only, are not part of this Commitment Letter and will not affect the construction of, or be taken into consideration in interpreting, this Commitment Letter.  The words “execution,” “signed,” “signature,” and words of like import in this Commitment Letter or any amendment or other modification hereof (including waivers and consents) shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable Law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.  The Commitment Papers supersede all prior understandings (including the Original Commitment Letter and the Original Fee Letter), whether written or oral, among you and us with respect to the Facilities and set forth the entire understanding of the parties hereto with respect thereto.

 

THIS COMMITMENT LETTER, THE ORIGINAL COMMITMENT LETTER, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATING TO THIS COMMITMENT LETTER OR THE ORIGINAL COMMITMENT LETTER, WILL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK; provided, however, that (a) the interpretation of the definition of Company Material Adverse Effect (as defined in the Acquisition Agreement), and whether or not a Company Material Adverse Effect shall have occurred, including for purposes of the Financing Conditions, (b) the determination of the accuracy of any Acquisition Agreement Representation and whether as a result of any inaccuracy of any Acquisition Agreement Representation there has been a failure of a Financing Condition and (c) the determination of whether the Acquisition has been consummated in accordance with the terms of the Acquisition Agreement will, in each case, be governed by, and construed and interpreted in accordance with, the laws governing the Acquisition Agreement as applied to the Acquisition Agreement, without giving effect to any choice or conflict of law provision or rule that would cause the application of laws of any other jurisdiction.  A determination by any court of competent jurisdiction (including any court or arbitration body contemplated by the Acquisition Agreement) with respect to any of the foregoing matters described in clauses (a) through (c) of the first sentence of this paragraph shall be conclusive for all purposes hereunder.

 

10.         WAIVER OF JURY TRIAL.

 

EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) BROUGHT BY OR ON BEHALF OF ANY PARTY RELATED TO OR ARISING OUT OF THE ACQUISITION, THE TRANSACTIONS, THE COMMITMENT PAPERS, THE ORIGINAL COMMITMENT LETTER, THE ORIGINAL FEE LETTER OR THE MAKING OF THE LOANS BY THE COMMITMENT PARTIES OR THE PERFORMANCE BY US OR ANY OF OUR AFFILIATES OF THE SERVICES HEREUNDER OR THEREUNDER.

 

11.         Jurisdiction.

 

Each party hereto hereby irrevocably and unconditionally (a) submits, for itself and its property, to the exclusive jurisdiction of any New York State court or Federal court of the United States of America sitting in the Borough of Manhattan in the City of New York, and any appellate court with jurisdiction over any such court, in any suit, action, proceeding, claim or counterclaim arising out of or relating to the Commitment Papers, the Original Commitment Letter, the Original Fee Letter or the Transactions, or for recognition or enforcement of any judgment, and agrees that all claims in respect of any such suit, action, proceeding, claim or counterclaim will be heard and determined in such New York State or, to the extent permitted by law, in such Federal court, (b) waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any suit, action, proceeding, claim or counterclaim arising out of or relating to the Commitment Papers, the Original Commitment Letter, the Original Fee Letter or the Transactions in any court in which such venue may be laid in accordance with the preceding clause of this sentence, (c) waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such suit, action, proceeding, claim or counterclaim in any such court, (d) agrees that a final judgment in any such action or proceeding will be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law and (e) agrees a determination by any court of competent jurisdiction (including any court contemplated by the Acquisition Agreement and including any alternate dispute resolution procedures as may be contemplated by the Acquisition Agreement) with respect to the right to terminate the Acquisition Agreement and whether the parties thereto have an obligation to consummate the Acquisition (including with respect to termination rights and satisfaction of conditions under the Acquisition Agreement) shall be conclusive for all purposes under this Commitment Letter. Service of any process, summons, notice or document by registered mail or overnight courier addressed to any of the parties hereto at the addresses above will be effective service of process against such party for any suit, action, proceeding, claim or counterclaim brought in any such court.

 

12.         Confidentiality.

 

This Commitment Letter is delivered to you on the understanding that none of the Fee Letter, this Commitment Letter, the Original Commitment Letter or the Original Fee Letter, nor their respective terms or substance, may be disclosed by you to any other person or entity prior to their acceptance by you, except

 

 

 

 

 

 

 

 

 

 

 

Each Commitment Party and its affiliates will use all confidential information provided to it or such affiliates by or on behalf of you and the contents of the Commitment Papers, the Original Commitment Letter and the Original Fee Letter solely for the purpose of providing the services that are the subject of this Commitment Letter and the Original Commitment Letter and will treat confidentially all such information and the Commitment Papers, the Original Commitment Letter and the Original Fee Letter; provided, that the foregoing sentence will not prevent such Commitment Party or any of its affiliates 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 agrees to inform you promptly thereof to the extent lawfully permitted to do so, unless such Commitment Party is prohibited by applicable law from so informing you, or except in connection with any request as part of any regulatory (including self-regulatory) audit or examination conducted by accountants or any governmental or regulatory authority exercising examination or regulatory authority), (b) upon the request or demand of any governmental, regulatory or self-regulatory authority having jurisdiction over such Commitment Party or any of its affiliates (in which case such Commitment Party agrees to inform you promptly thereof prior to such disclosure, unless such Commitment Party is prohibited by applicable law from so informing you, or except in connection with any request as part of any regulatory audit or examination conducted by bank accountants or any governmental bank regulatory authority exercising examination or regulatory authority), (c) to the extent that such information becomes publicly available other than by reason of improper disclosure by such Commitment Party or any of its affiliates, (d) to the extent that such information is received by such Commitment Party from a third party that is not to such Commitment Party’s knowledge subject to confidentiality obligations to you, Holdings, the Acquired Business, the Target, the Sponsor or any of their respective affiliates, (e) to the extent that such information is independently developed by such Commitment Party, (f) to such Commitment Party’s affiliates, leverage providers, managed funds, managed accounts, financing sources and credit insurance providers and their respective officers, directors, employees, legal counsel, independent auditors and other experts or agents who need to know such information in connection with the Transactions, are informed of the confidential nature of such information and are instructed to keep such information confidential, (g) except with respect to the Fee Letter or the Original Fee Letter, to bona fide prospective Lenders, participants or assignees or any bona fide potential counterparty (or its advisors) to any swap or derivative transaction relating to the Initial Borrower, the Acquired Business or any of its or their subsidiaries or any of its or their respective obligations, in each case who agree to be bound by the terms of this paragraph (or language substantially similar to this paragraph) which agreement will be pursuant to customary syndication practice, (h) to ratings agencies, or (i) in connection with the enforcement of our rights hereunder or under the Fee Letter or under the Original Fee Letter; provided, that (i) the disclosure of any such information to any Lenders or prospective Lenders or participants or prospective participants will be made subject to the acknowledgment and acceptance by such Lender or prospective Lender or participant or prospective participant that such information is being disseminated on a confidential basis (on substantially the terms set forth in this paragraph or as is otherwise reasonably acceptable to you and the Commitment Parties, including as agreed in any marketing materials) in accordance with the standard syndication processes of the Commitment Parties or customary market standards for dissemination of such type of information, which will in any event require “click through” or other affirmative actions on the part of the recipient to access such information and (ii) no such disclosure will be made to any Disqualified Lender.

 

After the closing of the Transactions and at such Commitment Party’s expense, each Commitment Party may (i) after consultation with the Borrower, place advertisements in periodicals and on the Internet as it may choose and (ii) on a confidential basis, circulate promotional materials in the form of a “tombstone” or “case study” (and, in each case, otherwise describe the names of any of you or your affiliates and any other information about the Transactions, including the amount, type and closing date of the Facilities). In addition, the Commitment Parties may disclose the existence of the Facilities and the information about the Facilities to market data collectors, similar service providers to the lending industry, and service providers to such Commitment Party in connection with the administration and management of the Facilities.

 

The obligations under this section with respect to the Commitment Letter but not the Fee Letter will automatically terminate and be superseded by the confidentiality provisions in the Facilities Documentation (to the extent set forth therein) upon the execution and delivery of the Facilities Documentation and in any event will terminate on the first anniversary of the Original Signing Date.

 

Nothing in this Section 12 shall prohibit any person from voluntarily disclosing or providing any information within the scope of this confidentiality provision regarding suspected violations of laws, rules or regulations to any governmental, regulatory or self-regulatory organization without any notice to or consent from any person.

 

13.         Surviving Provisions.

 

This Section 13 and the compensation (if applicable), syndication (if applicable), information (if applicable), indemnification, expense (if applicable), payment of fees (if applicable), confidentiality, jurisdiction, venue, governing law, no agency or fiduciary duty and waiver of jury trial provisions contained in the Commitment Papers (including the Fee Letter) will remain in full force and effect regardless of whether definitive financing documentation is executed and delivered and notwithstanding the termination of this Commitment Letter, the Fee Letter or the Initial Lenders’ commitments hereunder and the Lead Arrangers’ and other agents’ several agreements to provide the services described herein; provided, that your obligations under the Commitment Papers (including the Fee Letter), other than those relating to compensation, the syndication of the Facilities (to the extent such obligations do not terminate on the Closing Date), information and confidentiality, will automatically terminate and be superseded by the Facilities Documentation (with respect to indemnification, to the extent covered thereby) upon consummation of the Transactions and the payment of all amounts owing at such time under the Commitment Papers (including the Fee Letter).

 

14.         Patriot Act Notification.

 

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 the requirements of 31 C.F.R. § 1010.230 (the “Beneficial Ownership Regulation”), each Commitment Party and each Lender is required to obtain, verify and record information that identifies the Borrower and each Guarantor, which information includes the name, address, tax identification number and other information regarding the Borrower and each Guarantor that will allow such Commitment Party or such Lender to identify the Borrower and each Guarantor in accordance with the Patriot Act and the Beneficial Ownership Regulation. This notice is given in accordance with the requirements of the Patriot Act and the Beneficial Ownership Regulation and is effective as to each Commitment Party and each Lender.

 

15.         Acceptance and Termination.

 

If the foregoing correctly sets forth our agreement, please indicate your acceptance of the terms of this Commitment Letter and of the Fee Letter by returning to the Lead Arrangers (or their designee) counterparts hereof and of the Fee Letter executed by you no later than 11:59 p.m. New York City time on October 5, 2026.  Each Commitment Party’s commitments hereunder and agreements contained herein will expire at such time if the Commitment Parties party hereto (or their designee (including legal counsel)) have not received such executed counterparts in accordance with the immediately preceding sentence.  In the event that (A) the Financing Conditions are not satisfied or waived on or prior to the date that is five business days after the “End Date” (as defined in the Acquisition Agreement as in effect as of the Original Signing Date), (B) the Acquisition is consummated in accordance with the Acquisition Agreement (with or without the funding of the Initial Facilities) or (C) if earlier, the date on which you notify us in writing that the Acquisition Agreement has terminated in accordance with its terms, then this Commitment Letter and the commitments and undertakings of each Commitment Party hereunder will automatically terminate, unless such Commitment Party, in its sole discretion, agrees to an extension. The termination of any commitment pursuant to this paragraph will not prejudice your or our rights and remedies in respect of any breach or repudiation of the Commitment Papers.

 

[Signature pages follow]

 

We are pleased to have this opportunity and we look forward to working with you on this transaction.

 

We are pleased to have this opportunity and we look forward to working with you on this transaction.

 

We are pleased to have this opportunity and we look forward to working with you on this transaction.

 

We are pleased to have this opportunity and we look forward to working with you on this transaction.

 

We are pleased to have this opportunity and we look forward to working with you on this transaction.

 

We are pleased to have this opportunity and we look forward to working with you on this transaction.

 

We are pleased to have this opportunity and we look forward to working with you on this transaction.

 

We are pleased to have this opportunity and we look forward to working with you on this transaction.

 

We are pleased to have this opportunity and we look forward to working with you on this transaction.

 

We are pleased to have this opportunity and we look forward to working with you on this transaction.

 

We are pleased to have this opportunity and we look forward to working with you on this transaction.

 

We are pleased to have this opportunity and we look forward to working with you on this transaction.

 

We are pleased to have this opportunity and we look forward to working with you on this transaction.

 

We are pleased to have this opportunity and we look forward to working with you on this transaction.

 

We are pleased to have this opportunity and we look forward to working with you on this transaction.

 

Accepted and agreed to as of

the date first written above:

 

CONFIDENTIAL

SCHEDULE I

PROJECT SPARK

$500,000,000 Revolving Facility

$2,750,000,000 First Lien Term Facility

$415,000,000 First Lien Delayed Draw Term Facility

 

In connection with the Transactions, each Commitment Party identified as an Initial Lender in the applicable table(s) below commits to provide that percentage of the Initial Revolving Facility, the Initial First Lien Term Facility, and the Initial First Lien DDTL Facility, as applicable, set forth opposite its name in the applicable table below:

 

¹          All capitalized terms used but not defined in this exhibit have the meanings given to them in the Commitment Letter to which this exhibit is attached, including the other exhibits thereto. In the event any such capitalized term is subject to multiple and differing definitions, the appropriate meaning thereof in this exhibit is determined by reference to the context in which it is used.

 

 

In connection with the Transactions, each Commitment Party (acting alone or through or with affiliates selected by it) will act with and have the title(s) and in the role(s) set forth opposite its name with respect to the Initial First Lien Term Facility, Initial Revolving Facility and the Initial First Lien DDTL Facility (for purposes of the table set forth directly below, the “Initial First Lien Facilities”).

 

PROJECT SPARK

$500,000,000 Revolving Facility

$2,750,000,000 First Lien Term Facility

$415,000,000 First Lien Delayed Draw Term Facility

“Transaction Description”²

It is intended that:

 

(a)          The Buyer, together with Merger Sub (as defined below), each of which, prior to giving effect to the Acquisition, will be a direct wholly owned subsidiary of another domestic entity formed at the direction of the Sponsor (“Midco”), will, directly or indirectly, acquire (the “Acquisition”) the Acquired Business pursuant to the Agreement and Plan of Merger, dated as of the Original Signing Date, by and among the Buyer, The Baldwin Insurance Group, Inc., a Delaware corporation (the “Company”), The Baldwin Insurance Group Holdings, LLC, a Delaware limited liability company (“OpCo LLC”), Square Acquisition Merger Sub I, Inc., a Delaware corporation (“Merger Sub”), and the other parties thereto (including all schedules, annexes and exhibits thereto, and as amended or modified from time to time in a manner that would not result in a failure of the condition precedent set forth in paragraph 1 of the Conditions Annex, the “Acquisition Agreement”) and related documentation, pursuant to which (i) OpCo LLC will form a new, wholly owned Delaware limited liability company (“Seller LLC”), (ii) Seller LLC will form a new, wholly owned Delaware limited liability company (“Seller Intermediate”), (iii) Seller Intermediate will form a new, wholly owned Delaware limited liability company (“Seller Merger Sub”), (iv) Buyer will merge with and into OpCo LLC, with OpCo LLC being the surviving entity, (v) Merger Sub will merge with and into the Company, with the Company being the surviving entity and (vi) Seller Merger Sub will merge with and into OpCo LLC, with OpCo LLC being the surviving entity, wholly owned by Seller Intermediate (the mergers described in the foregoing clauses (iv), (v) and (vi) are referred to herein, collectively, as the “Merger”);

 

²          All capitalized terms used but not defined in this exhibit have the meanings given to them in the Commitment Letter to which this exhibit is attached, including the other exhibits thereto. In the event any such capitalized term is subject to multiple and differing definitions, the appropriate meaning thereof in this exhibit is determined by reference to the context in which it is used.

•

to pay the purchase price pursuant to the terms of the Acquisition Agreement;

•

to finance the repayment of the loan facilities of the Acquired Business (and termination of commitments thereunder and release of all guarantees, liens and security interests related thereto, except as permitted by the Facilities Documentation) with respect to which a payoff letter is delivered pursuant to the terms of the Acquisition Agreement and the termination of any related commitments and liens (the “Refinancing”) and payments with respect to any notes with respect to which the Acquisition Agreement contemplates a redemption, satisfaction, discharge, defeasance and/or tender offer;

•

to finance the other Transactions; and

•

to pay fees, costs and expenses related to the Transactions (such fees, costs and expenses, the “Transaction Costs”).

CONFIDENTIAL

EXHIBIT B

Borrower:	Square Acquisition Merger Sub II, LLC, a Delaware limited liability company (the “Initial Borrower”), which, after consummation of the Merger (as defined in Exhibit A), will be survived by The Baldwin Insurance Group Holdings, LLC, a Delaware limited liability company (such survivor, the “Borrower”).
Holdings:	Seller Intermediate, a Delaware limited liability company (“Holdings”), which upon consummation of the Transactions will hold 100% of the issued and outstanding equity securities of the Borrower.
Lead Arrangers:	MSSF, Barclays, Wells Fargo Securities, CIBC World Markets, CapOne, GS, DBSI, TD Securities, BMOCM, Jefferies, Pinnacle, RJ, Valley and, subject to Section 2 of the Commitment Letter, Moelis (the “Lead Arrangers”).3
Administrative Agent and Collateral Agent:	MSSF will act as the sole administrative agent (in such capacity, the “Administrative Agent”) and MSSF will act as sole collateral agent (in such capacity, the “Collateral Agent”), in each case, for the Lenders under the Facilities described in this Term Sheet.
Transactions:	As described on the “Transaction Description” attached to the Commitment Letter.
Lenders:	A syndicate of banks, financial institutions and other institutional lenders (collectively, the “Lenders”) arranged by the Lead Arrangers and reasonably acceptable to the Initial Borrower (such acceptance not to be unreasonably withheld or delayed), including Relationship Lenders and excluding Disqualified Lenders.
First Lien Term Facility:	A senior secured first lien term loan facility (the “Initial Term Loan Facility” or “Initial First Lien Term Facility”; together with the Initial First Lien DDTL Facility and the other term loan facilities issued from time to time under the First Lien Loan Documents, “First Lien Term Facilities” and each a “First Lien Term Facility”) in an aggregate principal amount of $2,750,000,000 (or such lower amount as the Initial Borrower may request; provided that Closing Date leverage levels shall be adjusted accordingly), plus at the Initial Borrower’s election, any Flex Increase (and Closing Date leverage levels shall be adjusted accordingly).

---

	Lenders with commitments or loans under the Initial Term Loan Facility are collectively referred to herein as “Initial Term Facility Lenders”.  Loans provided under the Initial Term Loan Facility (the “Initial Term Loans”) will be available to the Initial Borrower in U.S. Dollars.
First Lien Delayed Draw Term Facility:	A senior secured first lien delayed draw term loan facility in an aggregate principal amount of $415,000,000 (or such lower amount as the Borrower may request) (the “First Lien DDTL Facility” or the “Initial First Lien DDTL Facility”). Lenders with commitments under the First Lien DDTL Facility are collectively referred to herein as the “First Lien DDTL Facility Lenders.” Initial Term Facility Lenders and First Lien DDTL Facility Lenders are collectively referred to herein as “First Lien Term Lenders” and, First Lien Term Lenders together with Revolving Lenders (as defined below) are collectively referred to herein as “First Lien Facility Lenders.” Loans, if any, funded under the First Lien DDTL Facility (the “First Lien Delayed Draw Term Loans” and, together with the Initial Term Loans, the “First Lien Term Loans”) will be available to the Borrower in U.S. Dollars.  The Initial Term Loans and, after the funding thereof, the First Lien Delayed Draw Term Loans will have the same terms (except with respect to amortization as provided herein) and, to the extent practicable, shall be treated as a single “fungible” class for all purposes (including for tax purposes). First Lien Delayed Draw Term Loans will be available after the Closing Date until the date that is twenty-four months after the Closing Date (the “First Lien Delayed Draw Termination Date”).  The Borrower may draw the First Lien DDTL Facility, at its option, in whole or in part, at any time and from time to time prior to the First Lien Delayed Draw Termination Date.  Amounts repaid or prepaid under the First Lien DDTL Facility may not be reborrowed. If the First Lien DDTL Facility has not been drawn in full by the First Lien Delayed Draw Termination Date, then on such date any remaining unused commitments under the First Lien DDTL Facility shall automatically be reduced to $0 and the First Lien DDTL Facility Ticking Fee (as defined in Annex I to this Term Sheet) shall cease to accrue.  The Borrower may reduce commitments under the First Lien DDTL Facility, at its option, in whole or in part, at any time and from time to time prior to the First Lien Delayed Draw Termination Date, without fee, premium or penalty.

Any incurrence of First Lien Delayed Draw Term Loans at or after the Closing Date will be in minimum amounts of the lesser of $100,000 (or such lower amounts as the Administrative Agent may agree) and the remaining undrawn amount of the First Lien DDTL Facility, and subject only to the following conditions, measured at the time of the incurrence of such First Lien Delayed Draw Term Loans (or, subject to modification in connection with the Borrower’s LCT Election rights): (i)     the delivery of a borrowing notice at least three business days prior to any requested funding of the First Lien Delayed Draw Term Loans (or such later date as the First Lien Administrative Agent may agree), which may be contingent on the occurrence of any applicable transaction; (ii)   no default or event of default will have occurred and be continuing at the time of incurrence (or, if in connection with a “limited condition transaction”, at the time of the LCT Election, and no Specified Event of Default at the time of incurrence); (iii)  all representations and warranties will be true and correct in all material respects (or, in the case of any representation and warranty that is qualified as to “materiality,” “material adverse effect” or similar language, true and correct in all respects) immediately prior to, and after giving effect to, the incurrence of such First  Lien Delayed Draw Term Loans (or, if in connection with a “limited condition transaction”, at the time of the LCT Election, and the Specified Representations shall be true and correct in all material respects with respect to the Loan Parties (subject to the foregoing parenthetical) immediately prior to, and after giving effect to, such incurrence); (iv)   at the time of incurrence (or, if in connection with a “limited condition transaction”, at the Borrower’s option, at the time of the LCT Election), pro forma compliance with a First Lien Net Leverage Ratio of equal to or less than 0.65x outside the Closing Date First Lien Net Leverage Ratio at the time of incurrence; and (v)    the payment of any fees and expenses (including pursuant to the Fee Letter) due upon the funding of such Delayed Draw Term Loans.

	The proceeds of the First Lien Delayed Draw Term Loans will be used by the Borrower (A) to finance earnouts, seller debt, holdbacks and other deferred purchase price obligations in connection with any Permitted Acquisition or similar Permitted Investment (as defined below) (including as may arise pursuant to transactions consummated prior to the Closing Date), (B) to finance Permitted Acquisitions, and similar Permitted Investments (including assumed or acquired liabilities), including payments, such as the repayment of Indebtedness, made in connection therewith, (C) to pay fees and expenses with respect to the Transactions, with respect to the transactions contemplated in the foregoing clauses (A) and (B) and with respect to the transactions contemplated in the succeeding clauses (D) through (F), and with respect to the related borrowing(s) of First Lien Delayed Draw Term Loans, (D) to finance commission buy-down payments in connection with the IAS commission restructuring, (E) to finance the payment of “Contingent PSU Cash Awards” and “Contingent RSA Cash Awards” (as defined in the Acquisition Agreement on the Original Signing Date), (F) to finance loans made to reciprocal insurance exchanges (to the extent constituting a Permitted Investment) and (G) to refinance Revolving Loans (as defined below) and utilized cash on the balance sheet that were drawn to fund transactions specified in clauses (A) through (F).  Any such drawing may or may not be made simultaneously with the permitted usage thereof; provided that any such drawing shall be applied in accordance with and subject to the permitted use of proceeds for such First Lien Delayed Draw Term Loans within 90 days of such drawing. The Borrower may make a customary election (an “LCT Election”) in connection with the incurrence of First Lien Delayed Draw Term Loans if intended to be incurred in connection with a “limited condition transaction.”
Revolving Facility:	A senior secured first lien revolving credit facility (the “Initial Revolving Facility”, together with any other revolving facilities incurred under the First Lien Loan Documents after the Closing Date, “Revolving Facilities” and each a “Revolving Facility”) in an aggregate principal amount of up to $500,000,000 (or such lower amount as the Initial Borrower may request). Lenders with commitments or loans under the Initial Revolving Facility are collectively referred to as the “Initial Revolving Lenders”.  Commitments under the Initial Revolving Facility are referred to as the “Initial Revolving Facility Commitments”.
	Loans and commitments under the Initial Revolving Facility (the “Initial Revolving Loans”; loans and commitments under a Revolving Facility, “Revolving Loans”) will be available to the Borrower in U.S. Dollars or such other currencies that may be mutually agreed by the Borrower and Revolving Lenders thereunder.
	The Facilities described in this Term Sheet are collectively referred to herein as the “First Lien Facilities” and the First Lien Facilities incurred or for which commitments are provided on the Closing Date are referred to herein as the “Initial First Lien Facilities”.

Letters of Credit:	An amount to be agreed (or such higher amount as the Borrower, the Revolving Lenders and the Administrative Agent may agree) of the Initial Revolving Facility will be available to the Borrower in the form of standby and, with the approval of the applicable Issuing Bank in its sole discretion, documentary letters of credit.  Letters of credit will be issued by each of the Initial Revolving Lenders (or their respective affiliates) (in such capacity, the “Issuing Banks”) (except that (x) Blackstone and its affiliates, (y) Ares and its affiliates and (z) RJ and its affiliates will not, in any case, be required to be Issuing Banks), and each Initial Revolving Lender will, consistent with the Identified Precedent, participate in each issued letter of credit on a pro rata basis in accordance with each Initial Revolving Lender’s commitments in respect of the Initial Revolving Facility.  Each letter of credit will be denominated in U.S. Dollars and such other currencies as are available under the Initial Revolving Facility or as the Issuing Banks thereunder may agree and, except to the extent cash collateralized or backstopped pursuant to arrangements reasonably acceptable to the applicable Issuing Bank, will expire not later than the earlier of (a) twelve months after its date of issuance and (b) the fifth business day prior to the final maturity of the Initial Revolving Facility; provided, however, that any letter of credit may provide for renewal thereof for additional periods of up to twelve months on customary terms (which in no event will extend beyond the date referred to in clause (b) above).  Drawings under any letter of credit will be reimbursed by the Borrower within one business day or if not reimbursed will automatically and without the need to satisfy any condition precedent increase Revolving Loans.
Swingline Facility:	In connection with the Initial Revolving Facility, MSSF (in such capacity, the “Swingline Lender”) will make available to the Borrower in U.S. Dollars a swingline facility under which the Borrower may make short-term borrowings on same day notice of up to an amount to be agreed (or such higher amount as the Borrower and the Swingline Lender may agree).  Except for purposes of calculating the Commitment Fee described below in Annex I to this Exhibit B, any such swingline borrowings will reduce availability under the Revolving Facility on a dollar-for-dollar basis.  The Initial Revolving Lenders will be unconditionally obligated to purchase participations in any swingline loan pro rata based upon their commitments under the Initial Revolving Facility.
Incremental Facilities:	The First Lien Loan Documents will permit the Borrower (or, subject to the satisfaction of customary know-your-customer requirements of the Administrative Agent and the relevant lenders under the applicable Incremental Facility, any Subsidiary Guarantor as a co-borrower and/or additional borrower) to add one or more incremental term facilities, including delayed draw term facilities (the “Incremental Term Facilities”), one or more increases in commitments under a revolving facility (any such increase, an “Incremental Revolving Increase”) and/or one or more incremental revolving facilities (the “Incremental Revolving Facilities” together with any Incremental Revolving Increase and any Incremental Term Facilities, the “Incremental Facilities”) in currencies to be determined by the Borrower and lenders providing such Incremental Facilities (with respect to such currencies, with the consent of the Administrative Agent, not to be unreasonably withheld, conditioned or delayed) and in minimum amounts to be agreed.

The aggregate principal amount of an Incremental Facility outstanding on the first date it is incurred or commitments with respect thereto are made, may not exceed the Incremental Facility Cap. “Incremental Facility Cap” means an amount equal to the Fixed Incremental Amount plus the Ratio Incremental Amount. “Fixed Incremental Amount” means, the sum of a)  the greater of (i) 100.00% of Closing Date EBITDA and (ii) 100.00% of the Borrower’s TTM Consolidated Adjusted EBITDA; plus b)   the aggregate principal amount of any voluntary prepayments, redemptions and repurchases (including amounts paid pursuant to “yank-a-bank” provisions, and with credit given to the amount actually paid in cash, if acquired below par) of or cancellations or terminations of commitments with respect to any of, other Indebtedness, in each case except to the extent such prepayments were funded with the proceeds of long-term indebtedness (and in the case of any revolving commitments, as long as there is a permanent reduction in such commitments); plus c)   the amount then-available pursuant to the General Debt Basket to the extent allocated to the Fixed Incremental Amount by the Borrower; plus d)  the amount then-available pursuant to the General RP Basket to the extent allocated to the Fixed Incremental Amount by the Borrower; less e)   the outstanding amount of Incremental Facilities and Incremental Equivalent Debt incurred and then outstanding in reliance on the Fixed Incremental Amount (after giving effect to any reallocation).   “TTM Consolidated Adjusted EBITDA” means, as of any date of determination, the Consolidated Adjusted EBITDA of the Borrower for the most recently ended four fiscal quarter period for which financial statements have been delivered or (at the Borrower’s election) are internally available.   “Ratio Incremental Amount” means such amount as would not result in: (i)          with respect to Incremental Facilities secured on a pari passu basis with the First Lien Loans, the Borrower’s First Lien Net Leverage Ratio exceeding the Closing Date First Lien Net Leverage Ratio, plus 0.50 to 1.00;

(ii)          with respect to Incremental Facilities secured by Collateral on a junior lien basis to the First Lien Loans, the Borrower’s Secured Net Leverage Ratio exceeding the Closing Date Secured Net Leverage Ratio, plus 0.75 to 1.00; or (iii)          with respect to Incremental Facilities that are not secured by Collateral or are unsecured, either (A) the Borrower’s Total Net Leverage Ratio exceeding the Closing Date Total Net Leverage Ratio, plus 1.25 to 1.00 or (B) the Borrower’s Interest Coverage Ratio not exceeding 2.00 to 1.00; in each case, as of the last day of the most recently ended four fiscal quarter period for which financial statements have been delivered or (at the Borrower’s election) are internally available, calculated on a Pro Forma Basis (excluding the cash proceeds to the Borrower of any then proposed Incremental Facility for netting purposes and excluding the effect of any substantially concurrent incurrence under the Fixed Incremental Amount). “Closing Date EBITDA” means $505,500,000. “Closing Date First Lien Net Leverage Ratio” means the First Lien Net Leverage Ratio on the Closing Date. “Closing Date Secured Net Leverage Ratio” means the Secured Net Leverage Ratio on the Closing Date. “Closing Date Total Net Leverage Ratio” means the Total Net Leverage Ratio on the Closing Date. Incremental Facilities may rank pari passu or junior in right of payment with any class of Term Loans (including the Initial Term Loans) and any Revolving Facility, may either be unsecured or secured by a Permitted Lien that secures the Facilities on a pari passu or junior basis, and may (but need not) be guaranteed by the Loan Parties (or Persons that become Loan Parties substantially concurrently with the incurrence of such Incremental Facility). The Incremental Facilities will be available at the request of the Borrower with consent required only from those existing or new lenders that agree, in their discretion, to participate in such Incremental Facility.  Lenders providing a first lien Incremental Facility will be reasonably acceptable to (a) the Borrower, (b) the Administrative Agent and (c) with respect to any Incremental Revolving Facility or Incremental Revolving Increase, the Issuing Banks and the Swingline Lender (but, in each case of clauses (b) and (c), only to the extent such person would otherwise have a consent right to an assignment of such loans or commitments to such lender, such consent not to be unreasonably withheld, conditioned or delayed).  The First Lien Loan Documents may be amended as may be necessary to give effect to any Incremental Facility with the consent of the Borrower and Lenders providing such Incremental Facility, including such amendments as may be necessary or advisable to have such facility fungible with other First Lien Facilities.

The incurrence of an Incremental Facility will be subject to only the following conditions and to any other conditions agreed between the lenders under the Incremental Facility and the Borrower, measured at the time of the incurrence of such indebtedness (or in the case of any revolving commitments or term commitments with a delayed draw feature, at the time of first obtaining commitments with respect thereto) (subject to the Borrower’s right to make an LCT Election in connection with the incurrence of an Incremental Facility intended to be incurred in connection with a “limited condition transaction”): (a) no Event of Default shall have occurred and be continuing or would result therefrom; provided that the condition set forth in this clause (a) may be waived or not required (other than an Event of Default resulting from non-payment of principal, interest or fees to the Lenders or bankruptcy, i.e. a “Specified Event of Default”) by the Persons providing an Incremental Facility if the initial Borrowing thereunder will be incurred in connection with a Permitted Acquisition, an Acquisition Transaction and/or another permitted Investment or acquisition (collectively, a “Permitted Investment”); and (b) the representations and warranties in the Loan Documents will be true and correct in all material respects (except for representations and warranties that are already qualified by materiality, which representations and warranties will be true and correct in all respects) immediately prior to, and after giving effect to, the incurrence of such Incremental Facility; provided that the condition set forth in this clause (b) may be waived or not required by the Persons providing such Incremental Facilities if the proceeds of the initial Borrowing thereunder will be incurred in connection with, in whole or in part, a Permitted Investment.   The First Lien Loan Documents will also require the following with respect to Incremental Facilities: (i)          the scheduled final maturity date of any Incremental Term Facility (A) that is Pari Passu Lien Debt will be no earlier than the scheduled final maturity date for the Initial Term Loans and (B) that is Junior Lien Debt or Indebtedness that is not secured by a Lien on any Collateral shall be no earlier than the date that is 91 days following the scheduled final maturity date for the Initial Term Loans; provided that this clause shall not apply to any Incremental Term Facility incurred pursuant to the Inside Maturity Exception; (ii)          the Weighted Average Life to Maturity of any Incremental Term Facility will be no shorter than the remaining Weighted Average Life to Maturity of the Initial Term Loans; provided that this clause shall not apply to any Incremental Term Facility incurred pursuant to the Inside Maturity Exception;

(iii)        any mandatory prepayment of loans under an Incremental Term Facility (a) that comprise Pari Passu Lien Debt may participate on a pro rata basis or a less than pro rata basis (but not on a greater than pro rata basis) in any mandatory prepayments required of the Initial Term Loans, other than (A) any repayment of such loans at maturity and (B) any greater than pro rata repayment of such loans with the proceeds of a permitted refinancing thereof, and (b) that comprise Junior Lien Debt or Indebtedness that is not secured by a Lien on the Collateral may not be made unless, to the extent a corresponding mandatory prepayment is required hereunder with respect to the Initial Term Loans, such mandatory prepayments are first made or offered to the Initial Term Loans; provided that this clause shall not apply to any Incremental Term Facility incurred pursuant to the Inside Maturity Exception; (iv)        (A) to the extent secured by a Lien on assets of Holdings or any of its Restricted Subsidiaries, any such Incremental Facility shall not be secured by any Lien on any asset of such Person that does not also secure the Initial Term Loans or Initial Revolving Facility, as applicable (except (1) customary cash collateral in favor of an agent, letter of credit issuer or similar “fronting” lender, (2) Liens on property or assets applicable only to periods after the Latest Maturity Date of the Initial Term Loans or Initial Revolving Facility, as applicable, at the time of incurrence, (3) Excluded Assets and (4) any Liens on assets to the extent that a Lien on such asset is also added for the benefit of the Lenders under the Initial Term Loans or Initial Revolving Facility, as applicable for so long as such Liens secure such Incremental Facility) and (B) to the extent guaranteed by Holdings or any of its Restricted Subsidiaries, any such Incremental Facility shall not be guaranteed by any such Person that is not (or is not required to be) a Loan Party (except (1) for guarantees by such Persons that are applicable only to periods after the Latest Maturity Date of the Initial Term Loans or Initial Revolving Facility, as applicable, at the time of incurrence, (2) an Excluded Subsidiary, and (3) any such Person guaranteeing such Incremental Term Facilities or Incremental Revolving Facilities, as applicable, that also guarantees the Initial Term Loans or Initial Revolving Facility, as applicable, for so long as such Person guarantees such Incremental Facility); (v)          the interest rate, fees, OID and other economic terms applicable to Incremental Term Loans will be as determined by the Borrower and the Persons providing such Incremental Term Loans; provided that in the event that the All-In Yield applicable to any Incremental Term Loans (other than any Excluded Incremental Facility) exceeds the All-In Yield for the Initial Term Loans by more than 75 basis points, then the interest rate margins for the Initial Term Loans shall be increased to the extent necessary so that the All-In Yield for such Initial Term Loans is equal to the All-In Yield for such Incremental Term Loans minus 75 basis points (the “MFN Provision”);

(vi)         except as otherwise set forth herein, all other terms of any Incremental Revolving Facility shall be on terms and pursuant to documentation applicable to the Revolving Facility; and (vii)        any Incremental Term Facility will be on terms and pursuant to documentation to be determined by the Borrower and the providers of such Incremental Term Facility; provided, that the covenants and events of default applicable to any such Incremental Term Facility are either: (i) substantially identical to, or, taken as a whole, not materially more favorable to the lenders or holders providing such Indebtedness than, those applicable to the Initial Term Loans, as determined in good faith by a Responsible Officer of the Borrower in its reasonable judgment (except (A) for covenants and events of default applicable only to periods after the scheduled final maturity date of the Initial Term Loans at the time of incurrence and (B) any term or condition to the extent such term or condition is also added for the benefit of the Lenders under the Initial Term Loans); or (ii) consistent with customary market terms and conditions at the time of such incurrence, including with respect to high yield debt securities to the extent applicable, as determined in good faith by a Responsible Officer of the Borrower in its reasonable judgment; provided that, (1) in the case of both clause (i) and (ii) a certificate of a Responsible Officer delivered to the Administrative Agent at least four Business Days (or such shorter period as may be agreed by the Administrative Agent) prior to the incurrence of any such Incremental Facility (or receipt of commitments with respect thereto), together with a reasonably detailed description of the material covenants and events of default of such Incremental Facility or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirement of this clause (vii) shall be conclusive evidence that such covenants and events of default satisfy such requirement unless the Administrative Agent notifies the Borrower in writing within such four Business Days (or shorter) period that it disagrees with such determination (including a detailed description of the basis upon which it disagrees)); and (2) this clause (vii) will not apply to (A) terms addressed in the preceding clauses (i) through (vi), (B) interest rate, rate floors, fees, funding discounts and other pricing or economic terms, (C) redemption, prepayment or other premiums, and (D) optional prepayment or redemption terms; provided, further, that agency and operations provisions applicable to each Incremental Term Facility secured on a pari passu basis with the other First Lien Facilities will be reasonably satisfactory to the Administrative Agent (this clause (vii), the “Terms MFN Provisions”). “Inside Maturity Exception” means Indebtedness consisting of any of the following: escrow facilities, customary bridge facilities and similar facilities; and Indebtedness in an original principal amount not to exceed the greater of (a) 50.00% of Closing Date EBITDA and (b) 50.00% of TTM Consolidated Adjusted EBITDA as of the applicable date of determination.