Exhibit 10.1

 

Execution Copy

 


	
GOLDMAN SACHS BANK USA
   200 West Street
   New York, New York 10282
    	
 
    	
CREDIT SUISSE AG
   CREDIT SUISSE SECURITIES (USA) LLC
   Eleven Madison Avenue
   New York, New York 10282
    




 

CONFIDENTIAL

 

December 5, 2016

 

Synchronoss Technologies, Inc. (“Parent” or “you”)

200 Crossing Boulevard, 8th Floor

Bridgewater, New Jersey  08807

 

Attn:  Stephen G. Waldis, Chief Executive Officer

 

Project GL
 Commitment Letter

 

Ladies and Gentlemen:

 

You have advised each of Goldman Sachs Bank USA (“Goldman”), Credit Suisse AG (acting through such of its affiliates or branches as it deems appropriate, “CS”) and Credit Suisse Securities (USA) LLC (“CS Securities” and, together with CS and their respective affiliates, “Credit Suisse”; Goldman and Credit Suisse, together with any Additional Commitment Party (as defined below), collectively, the “Commitment Parties”, “we” or “us”) that you intend to acquire (the “Acquisition”), directly or indirectly, all of the outstanding equity interests of the entity previously identified to us by you as “GL”, a Delaware corporation (the “Company”) by means of a purchase of shares of the Company pursuant to a tender offer (the “Tender Offer”) and subsequent consummation of a short-form merger.  You have further advised us that, in connection with the foregoing, you intend to consummate the other Transactions described in the Transaction Description attached hereto as Exhibit A (the “Transaction Description”).  Capitalized terms used but not defined herein shall have the meanings assigned to them in the Transaction Description and in the Summaries of Principal Terms and Conditions attached hereto as Exhibit B (the “Term Sheet”; this commitment letter, the Transaction Description, the Term Sheet and the Summary of Additional Conditions attached hereto as Exhibit C, collectively, the “Commitment Letter”).

 

You have further advised us that, in connection therewith, it is intended that the financing for the Transactions will include (i) the senior secured term loan B facility described in the Term Sheet, in an aggregate principal amount of $900 million (the “Term Loan Facility”) and (ii) a $250 million senior secured revolving credit facility (the “Revolving Facility” and together with the Term Loan Facility, the “Facilities”).

 

In connection with the foregoing, each of Goldman and CS is pleased to advise you of its commitment to provide 50% of the Facilities, subject only to the satisfaction or waiver of the applicable conditions set forth in the section entitled “Conditions to Borrowing” in Exhibit B hereto and in Exhibit C hereto.  Goldman, CS and any Additional Commitment Party as provided in the following paragraph, are referred to herein as the “Initial Lenders” and each individually as an “Initial Lender”.  The commitments of the Initial Lenders and any such other additional parties will be several and not joint.

 











 

It is agreed that (i) each of Goldman and CS Securities will act as a lead arranger and joint bookrunner for the Facilities (in such capacity, a “Lead Arranger” and collectively with any Additional Commitment Party appointed as a lead arranger and joint bookrunner as provided below, the “Lead Arrangers”) and (ii) Goldman will act as administrative agent and collateral agent for the Facilities (in such capacity, the “Administrative Agent”).  It is further agreed that Goldman shall have “left” placement in any and all marketing materials or other documentation used in connection with the Facilities.

 

Within 10 business days after the date of this Commitment Letter, you may appoint up to two other additional joint lead arrangers, joint bookrunners, agents, co-agents or co-managers (any such arranger, bookrunner, agent, co-agent or co-manager, an “Additional Commitment Party”) or confer other titles in respect of any Facility in a manner and with economics determined by you (it being understood that to the extent you appoint Additional Commitment Parties or confer other titles in respect of any Facility, the economics allocated to, and the amount of the commitments of, the Commitment Parties in respect of the relevant Facilities will be reduced ratably by the economics allocated to and the amount of the commitments of such appointed entities upon the execution by such financial institution of customary joinder documentation (except as provided in the immediately prior sentence) and, thereafter, each such financial institution shall constitute a “Commitment Party” and “Initial Lender” hereunder and under the Fee Letter); provided that (i) such appointments are made ratably across the Facilities, (ii) no Additional Commitment Party shall receive greater economics than any Initial Lender on the date hereof and (iii) each Initial Lender on the date hereof shall have not less than 37.5% of the total economics for each Facility on the Closing Date.  No other titles will be awarded and no compensation (other than that expressly contemplated by this Commitment Letter and the Fee Letter referred to below and other than in connection with any Additional Commitment Party) will be paid to any Lender in order to obtain its commitment to participate in the Facilities unless you and the Commitment Parties shall so agree.

 

The Lead Arrangers reserve the right, prior to or after the execution of the Facilities Documentation (as defined in Exhibit B), which we agree will be initially drafted by your counsel, to syndicate all or a portion of the Initial Lenders’ respective commitments hereunder to a group of banks, financial institutions and other institutional lenders identified by the Lead Arrangers in consultation with you and reasonably acceptable to them and you with respect to the identity of such lenders (your consent not to be unreasonably withheld or delayed) including, without limitation, any relationship lenders designated by you and reasonably acceptable to the Lead Arrangers (such banks, financial institutions and other institutional lenders, together with the Initial Lenders, the “Lenders”); provided that, notwithstanding each Lead Arranger’s right to syndicate the Facilities and receive commitments with respect thereto (but subject to the fourth paragraph of this Commitment Letter), it is agreed that (i) syndication of, or receipt of commitments or participations in respect of, all or any portion of an Initial Lender’s commitments hereunder prior to the date of the consummation of the Tender Offer or the Acquisition and the date of the initial funding under the Facilities (the date of such funding, the “Closing Date”) shall not be a condition to such Initial Lender’s commitments; (ii) except (x) as provided above with respect to appointment of Additional Commitment Parties and (y) other than pursuant to assignment among Goldman and Goldman Sachs Lending Partners LLC, no Initial Lender shall be relieved, released or novated from its obligations hereunder (including its obligation to fund the Facilities on the Closing Date) in connection with any syndication, assignment or participation of the Facilities, including its commitments in respect thereof, until after the initial funding of the Facilities has occurred; (iii) no assignment or novation shall become effective with respect to all or any portion of any Initial Lender’s commitments in respect of the Facilities until after the initial funding of the Facilities; provided that Goldman may assign its commitments hereunder to Goldman Sachs Lending Partners LLC prior to the initial funding of the Facilities; (iv) unless you otherwise agree in writing, each Commitment Party shall retain exclusive control over all rights and obligations with respect to its commitments in respect of the Facilities, including all rights with respect to consents, modifications, supplements, waivers and amendments, until the Closing Date has occurred; and (v) we will not syndicate our commitments to

 

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certain banks, financial institutions and other institutional lenders and investors (a) that have been separately identified in writing by you to us prior to the date of this Commitment Letter, (b) those persons who are competitors of you or the Company that are separately identified in writing by you to us from time to time, and (c) in the case of each of clauses (a) and (b), any of their affiliates (other than bona fide debt funds) that are either (x) identified in writing by you from time to time or (y) clearly identifiable solely on the basis of such affiliate’s name (clauses (a), (b) and (c) above, collectively “Disqualified Lenders”).

 

Without limiting your obligations to assist with syndication efforts as set forth herein, it is understood that the Initial Lenders’ commitments hereunder are not conditioned upon the syndication of, or receipt of commitments or participations in respect of, the Facilities and in no event shall the commencement or successful completion of syndication of the Facilities constitute a condition to the availability of the Facilities on the Closing Date.  The Lead Arrangers intend to commence syndication efforts promptly upon the execution by each party of this Commitment Letter and as part of their syndication efforts, it is their intent to have Lenders commit to the Facilities prior to the Closing Date (subject to the limitations set forth in the preceding paragraph).  You agree actively to assist the Lead Arrangers, until the earlier to occur of (i) a Successful Syndication (as defined in the Fee Letter) and (ii) 60 days after the Closing Date (such earlier date, the “Syndication Date”), in completing a timely syndication that is reasonably satisfactory to them and you.  Such assistance shall include, without limitation, (a) your using commercially reasonable efforts to ensure that any syndication efforts benefit materially from your existing lending and investment banking relationships and, to the extent not in contravention of the terms of the Acquisition Agreement as in effect on the date hereof, those of the Company, (b) direct contact between senior management, representatives and advisors of you, on the one hand, and the proposed Lenders, on the other hand (and your using commercially reasonable efforts, to the extent not in contravention of the terms of the Acquisition Agreement as in effect on the date hereof, to ensure such contact between senior management, representatives and advisors of the Company, on the one hand, and the proposed Lenders, on the other hand), in all such cases at times and places mutually agreed upon, (c) your assistance, and your using commercially reasonable efforts to cause the Company to assist, to the extent not in contravention of the terms of the Acquisition Agreement as in effect on the date hereof, in the preparation of customary confidential information memoranda for the Facilities (any such memorandum, a “Confidential Information Memorandum”) and other marketing materials to be used in connection with the syndications, in each case, in a form customarily delivered in connection with senior secured bank financings in the United States, by using commercially reasonable efforts to provide information and other customary materials reasonably requested in connection with such Confidential Information Memorandum no less than 15 consecutive business days prior to the Closing Date (provided that such 15 consecutive business day period shall commence no earlier than January 3, 2017), (d) using your commercially reasonable efforts to procure a public corporate credit rating and a public corporate family rating in respect of the Borrower from Standard & Poor’s Ratings Services (“S&P”) and Moody’s Investors Service, Inc. (“Moody’s”), respectively, and public ratings for the Term Loan Facility from each of S&P and Moody’s, in each case, prior to the launch of primary syndication of the Facilities, (e) the hosting, with the Lead Arrangers, of no more than two meetings of prospective Lenders at times and locations to be mutually agreed upon and (f) your ensuring (and with respect to the Company and its subsidiaries, to the extent not in contravention of the terms of the Acquisition Agreement as in effect on the date hereof, your using commercially reasonable efforts to ensure) that there shall be no competing issues of debt securities or commercial bank or other credit facilities (other than the Facilities) of the Borrower, the Company or any of their respective subsidiaries being offered, placed or arranged if such debt securities or commercial bank or other credit facilities would, in the reasonable judgment of the Lead Arrangers, materially impair the primary syndication of the Facilities (it is understood and agreed that any deferred purchase price obligations, ordinary course working capital facilities and ordinary course capital lease, purchase money, equipment financings, intercompany indebtedness and other indebtedness permitted to be incurred by the Acquisition Agreement will not be deemed to materially impair the

 

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primary syndication of the Facilities). Notwithstanding anything to the contrary contained in this Commitment Letter or the Fee Letter or any other letter agreement or undertaking concerning the financing of the Transactions to the contrary, neither the obtaining of the ratings referenced above nor the compliance with any of the other provisions set forth in clauses (a) through (f) above or any other provision of this paragraph shall constitute a condition to the commitments hereunder or the funding of the Facilities on the Closing Date or at any time thereafter.

 

The Lead Arrangers, in their capacities as such, will, in consultation with you, manage all aspects of any syndication of the Facilities, including decisions as to the selection of institutions reasonably acceptable to you to be approached and when they will be approached, when their commitments will be accepted, which institutions will participate (subject to your consent rights and rights of appointment set forth in the second preceding paragraph), the allocation of the commitments among the Lenders and the amount and distribution of fees among the Lenders from the amounts to be paid to the Commitment Parties pursuant to this Commitment Letter and the Fee Letter.  To assist the Lead Arrangers in their syndication efforts, you agree promptly to prepare and provide (and to use commercially reasonable efforts, to the extent not in contravention of the terms of the Acquisition Agreement as in effect on the date hereof, to cause the Company to provide) to the Lead Arrangers all customary information with respect to you and the Company and each of your and its respective subsidiaries and the Transactions, including all financial information and projections (such projections, including financial estimates, budgets, forecasts and other forward-looking information, the “Projections”), as the Lead Arrangers may reasonably request in connection with the structuring, arrangement and syndication of the Facilities.  For the avoidance of doubt, you will not be required to provide any information to the extent that the provision thereof would violate any law, rule or regulation binding upon you or any of your subsidiaries or affiliates or upon the Company or any of its subsidiaries or affiliates or any obligation of confidentiality binding upon, or waive any attorney-client privilege of, you, the Company or your or its respective subsidiaries and affiliates (in which case you agree to use commercially reasonable efforts to have any such confidentiality obligation waived, and otherwise in all instances, to the extent practicable and not prohibited by applicable law, rule or regulation, promptly notify us that information is being withheld pursuant to this sentence).  Notwithstanding anything herein to the contrary, the only financial statements that shall be required to be provided to the Commitment Parties in connection with the syndication of the Facilities shall be those required to be delivered pursuant to paragraphs 5 and 6 of Exhibit C.

 

You hereby represent and warrant that (with respect to the Company and its subsidiaries, to the best of your knowledge), (a) all written information and written data (such information and data, other than (i) the Projections and (ii) information of a general economic or industry specific nature, the “Information”) that has been or will be made available to the Commitment Parties by or on behalf of you or any of your representatives, taken as a whole, is or will be, when furnished, correct in all material respects and does not or will not, when furnished, and when taken as a whole, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein not materially misleading in light of the circumstances under which such statements are made (after giving effect to all supplements and updates thereto from time to time) and (b) the Projections that have been or will be made available to the Commitment Parties by or on behalf of you or any of your representatives have been or will be, at the time of delivery, prepared in good faith based upon assumptions that you believe to be reasonable at the time made and at the time the related Projections are so furnished to the Commitment Parties, it being understood that the Projections are as to future events and are not to be viewed as facts, that the Projections are subject to significant uncertainties and contingencies, many of which are beyond your control, that no assurance can be given that any particular Projections will be realized and that actual results during the period or periods covered by any such Projections may differ significantly from the projected results and such differences may be material.  You agree that if, at any time prior to the later of the Closing Date and the Syndication Date, you become

 

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aware that any of the representations and warranties in the preceding sentence would be, to the best of your knowledge, incorrect in any material respect if the Information and Projections were being furnished, and such representations and warranties were being made, at such time, then you will (and, with respect to the Company and its subsidiaries, use commercially reasonable efforts to) promptly supplement the Information and the Projections so that (with respect to the Company and its subsidiaries, to the best of your knowledge) such representations and warranties will be correct in all material respects under those circumstances.  In arranging and syndicating the Facilities, the Commitment Parties will be entitled to use and rely primarily on the Information and the Projections without responsibility for independent verification thereof.

 

You hereby acknowledge that (a) the Lead Arrangers will make available Information and Projections to the proposed syndicate of Lenders by posting such Information and Projections on IntraLinks, SyndTrak Online, DebtDomain or similar electronic means and (b) certain of the Lenders may be “public side” Lenders (i.e., Lenders that wish to receive only information that (i) is publicly available or (ii) is not material with respect to you, the Company, your or its respective subsidiaries or the respective securities of any of the foregoing for purposes of United States federal and state securities laws (collectively, the “Public Side Information”; any information that is not Public Side Information, “Private Side Information”)) and who may be engaged in investment and other market-related activities with respect to you, the Company, any of your or its respective subsidiaries or the respective securities of any of the foregoing (each, a “Public Sider” and each Lender that is not a Public Sider, a “Private Sider”).

 

If reasonably requested by the Lead Arrangers you will use commercially reasonable efforts to assist us in preparing a customary additional version of the Confidential Information Memorandum to be used in connection with the syndication of the Facilities that includes only Public Side Information with respect to you, the Company, your or its respective subsidiaries or the respective securities of any of the foregoing to be used by Public Siders.  It is understood that in connection with your assistance described above, customary authorization letters will be included in any Confidential Information Memorandum that authorize the distribution of the Confidential Information Memorandum to prospective Lenders in a form customarily included in the Confidential Information Memorandum for senior secured bank financings in the United States, that contain the representations set forth in the second preceding paragraph (which representations as to the Company, in the case of authorization letters to be delivered by the Company, shall not be qualified by knowledge) (and represent that the additional version of the Confidential Information Memorandum contains only Public Side Information with respect to you, the Company, your or its respective subsidiaries and the respective securities of any of the foregoing (other than as set forth in the following paragraph)).  It is further understood that in connection with your assistance described above, the Confidential Information Memorandum will contain provisions that exculpate you, the Company and your and their respective subsidiaries and affiliates and us with respect to any liability related to the use or misuse of the contents of the Confidential Information Memorandum or any related marketing material by the recipients thereof.

 

You agree to use commercially reasonable efforts to designate that portion of the Information that may be distributed to the Public Siders as “PUBLIC”.  You agree that, subject to the confidentiality and other provisions of this Commitment Letter, the Lead Arrangers on your behalf may distribute the following documents to all prospective lenders in the form provided to you and to your counsel a reasonable time prior to their distribution, unless you or your counsel advise the Lead Arrangers in writing (including by email) within a reasonable time prior to their intended distribution that such material should only be distributed to Private Siders: (a) the Term Sheet, (b) interim and final drafts of the Facilities Documentation, (c) administrative materials prepared by the Lead Arrangers for prospective Lenders (such as a lender meeting invitation, allocations and funding and closing memoranda) and (d) changes in the terms of the Facilities.  If you advise us that any of the foregoing items should be

 

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distributed only to Private Siders, then the Lead Arrangers will not distribute such materials to Public Siders without your consent.

 

As consideration for the commitments of the Initial Lenders hereunder and for the agreement of the Lead Arrangers to perform the services described herein, you agree to pay (or cause to be paid) the fees set forth in the Term Sheet and in the Fee Letter dated the date hereof and delivered herewith with respect to the Facilities (the “Fee Letter”), if and to the extent payable.  Once paid, such fees shall not be refundable under any circumstances, except as otherwise contemplated by the Fee Letter.

 

The several commitments of the Initial Lenders hereunder to fund the Facilities on the Closing Date and the several agreements of the Lead Arrangers and the Joint Bookrunners to perform the services described herein are subject solely to (a) the applicable conditions set forth in the section entitled “Conditions Precedent to Initial Borrowing” in Exhibit B hereto and (b) the applicable conditions set forth in Exhibit C hereto, and upon satisfaction (or waiver by the Commitment Parties) of such conditions, the initial funding of the Facilities shall occur, it being understood that there are no conditions (implied or otherwise) to the commitments hereunder, including compliance with the terms of this Commitment Letter, the Fee Letter or the Facilities Documentation, other than those that are expressly stated in the section entitled “Conditions Precedent to Initial Borrowing” in Exhibit B hereto and in Exhibit C hereto.

 

Notwithstanding anything to the contrary in this Commitment Letter (including each of the exhibits attached hereto), the Fee Letter, the Facilities Documentation or any other letter agreement or other undertaking concerning the financing of the Transactions to the contrary, (i) the only representations and warranties the accuracy of which shall be a condition to the availability of the Facilities on the Closing Date shall be (A) such of the representations and warranties made by the Company with respect to the Company, its subsidiaries and their respective businesses in the Acquisition Agreement as are material to the interests of the Lenders, but only to the extent that you (or one of your affiliates) have the right (taking into account any applicable cure provisions) to terminate your (or its) obligations under the Acquisition Agreement (or otherwise decline to consummate the Acquisition without any liability, in accordance with the terms of the Acquisition Agreement) as a result of a breach of such representations and warranties in the Acquisition Agreement (to such extent, the “Company Representations”) and (B) the Specified Representations (as defined below) and (ii) the terms of the Facilities Documentation shall be in a form such that they do not impair the availability of the Facilities on the Closing Date if the conditions set forth in the section entitled “Conditions Precedent to Initial Borrowing” in Exhibit B hereto and in Exhibit C hereto are satisfied (or waived by the Commitment Parties) (provided that, to the extent any security interest in any Collateral (as defined in Exhibit B) is not or cannot be provided and/or perfected on the Closing Date (other than the pledge and perfection of the security interests (1) in the certificated equity securities, if any, of any wholly-owned U.S. domestic subsidiaries of the Borrower (to the extent required by the Term Sheet); provided that stock certificates of the Company and its subsidiaries will only be required to be delivered on the Closing Date to the extent received from the Company, so long as you have used commercially reasonable efforts to obtain them on the Closing Date and (2) in other assets with respect to which a lien may be perfected by the filing of a financing statement under the Uniform Commercial Code) after your use of commercially reasonable efforts to do so or without undue burden or expense, then the provision and/or perfection of a security interest in such Collateral shall not constitute a condition precedent to the availability of the Facilities on the Closing Date but instead shall be required to be delivered and/or perfected after the Closing Date pursuant to arrangements and timing to be mutually agreed (but, in any event, (i) with respect to certificated equity securities, if any, of any wholly-owned U.S. domestic subsidiaries of the Borrower (to the extent required by the Term Sheet), not later than 3 business days after the Closing Date and (ii) with respect to other assets, not later than 60 days after the Closing Date or such longer period as may be agreed by the Administrative Agent and the Borrower).  For purposes hereof, “Specified Representations” means the representations and warranties made by the Borrower and the Guarantors to be set forth in the Facilities

 

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Documentation relating to the corporate or other organizational existence of the Borrower and the Guarantors, power and authority, due authorization, execution, delivery and enforceability, in each case related to the borrowing under, guaranteeing under, granting of security interests in the Collateral to, and performance of, the Facilities Documentation; the incurrence of the loans and the provision of the Guarantees, in each case under the Facilities, and the granting of the security interests in the Collateral to secure the Facilities, not conflicting with the Borrower’s or any Guarantor’s constitutional documents (after giving effect to the Acquisition); solvency as of the Closing Date (after giving effect to the Transactions) of the Borrower and its subsidiaries on a consolidated basis (solvency to be defined in a manner consistent with the manner in which solvency is defined in the solvency certificate to be delivered pursuant to paragraph 10 of Exhibit C); creation, validity and perfection of security interests in the Collateral to be perfected on the Closing Date (subject to permitted liens and the foregoing provisions of this paragraph relating to Collateral); Federal Reserve margin regulations; the use of loan proceeds not violating the PATRIOT Act, OFAC or the FCPA; and the Investment Company Act.  This paragraph, and the provisions herein, shall be referred to as the “Funding Conditions Provisions”.  Without limiting the conditions precedent provided herein to funding the consummation of the Acquisition (including the Tender Offer) with the proceeds of the Facilities, the Lead Arrangers will cooperate with you as reasonably requested in coordinating the timing and procedures for the funding of the Facilities in a manner consistent with the Acquisition Agreement.

 

You agree (a) to indemnify and hold harmless each of the Commitment Parties, their respective affiliates and the respective officers, directors, employees, agents, advisors, controlling persons, members and the successors and assigns of each of the foregoing (each an “Indemnified Person”) from and against any and all losses, claims, damages and liabilities of any kind or nature, joint or several, to which any such Indemnified Person may become subject, to the extent arising out of or in connection with any claim, litigation, investigation or proceeding, actual or threatened, relating to this Commitment Letter (including the Term Sheet), the Fee Letter, the Transactions, the Facilities or any related transaction contemplated hereby (any of the foregoing, a “Proceeding”), regardless of whether any such Indemnified Person is a party thereto and whether such Proceeding is brought by you or any other person, and to reimburse each such Indemnified Person upon demand for any reasonable and documented out-of-pocket legal fees and expenses incurred in connection with investigating or defending any of the foregoing by one firm of counsel for all Indemnified Persons, taken as a whole, and, if necessary, by a single firm of local counsel in each appropriate jurisdiction for all such Indemnified Persons, taken as a whole (and, in the case of an actual or perceived conflict of interest where the Indemnified Person affected by such conflict notifies you of the existence of such conflict and thereafter, after receipt of your consent (which consent shall not be unreasonably withheld or delayed), retains its own counsel, by another firm of counsel for such affected Indemnified Person) or other reasonable and documented out-of-pocket fees and 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 related expenses to the extent that they have resulted from (i) the willful misconduct, bad faith or gross negligence of such Indemnified Person or any of such Indemnified Person’s affiliates or any of its or their respective officers, directors, employees, agents, controlling persons, members or the successors of any of the foregoing (as determined by a court of competent jurisdiction in a final and non-appealable decision), (ii) a material breach of the obligations of such Indemnified Person (or any of such Indemnified Person’s affiliates or any of its or their respective officers, directors, employees, agents, controlling persons, members or the successors of any of the foregoing) under this Commitment Letter, the Fee Letter or the Facilities Documentation (as determined by a court of competent jurisdiction in a final and non-appealable decision) or (iii) any Proceeding not arising from any act or omission by you or any of your affiliates that is brought by an Indemnified Person against any other Indemnified Person (other than disputes involving claims against any Lead Arranger or Administrative Agent in its capacity as such), and (b) to reimburse each Commitment Party and each Indemnified Person from time to time, upon presentation of a summary statement, for all reasonable and documented out-of-pocket expenses

 

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(including but not limited to expenses of each Commitment Party’s due diligence investigation, consultants’ fees (to the extent any such consultant has been retained with your prior written consent (such consent not to be unreasonably withheld or delayed)), syndication expenses, travel expenses and reasonable fees, disbursements and other charges of counsel to the Lead Arrangers identified in the Term Sheet and of a single firm of local counsel to the Lead Arrangers in each appropriate jurisdiction (other than any allocated costs of in-house counsel) or otherwise retained with your consent (such consent not to be unreasonably withheld or delayed)), in each case incurred in connection with the Facilities and the preparation of this Commitment Letter, the Fee Letter, the Facilities Documentation and any security arrangements in connection therewith (collectively, the “Expenses”); provided that except as set forth in the Fee Letter, you shall not be required to reimburse any of the Expenses in the event the Closing Date does not occur.

 

Notwithstanding any other provision of this Commitment Letter, (i) no Indemnified Person shall be liable for any damages arising from the use by others of information or other materials obtained through internet, electronic, telecommunications or other information transmission systems (including IntraLinks, SyndTrak Online or DebtDomain), except to the extent that such damages have resulted from the willful misconduct, bad faith or gross negligence of such Indemnified Person or any of such Indemnified Person’s affiliates or any of its or their officers, directors, employees, agents, controlling persons, members or the successors of any of the foregoing (as determined by a court of competent jurisdiction in a final and non-appealable decision) and (ii) none of we, you, the Company, any subsidiaries or affiliates of the foregoing or any Indemnified Person shall be liable for any indirect, special, punitive or consequential damages (including, without limitation, any loss of profits, business or anticipated savings) in connection with this Commitment Letter, the Fee Letter, the Transactions (including the Facilities and the use of proceeds thereunder), or with respect to any activities related to the Facilities, including the preparation of this Commitment Letter, the Fee Letter and the Facilities Documentation; provided that nothing in this paragraph shall limit your indemnity and reimbursement obligations to the extent that such indirect, special, punitive or consequential damages are included in any claim by a third party unaffiliated with any of the Commitment Parties with respect to which the applicable Indemnified Person is entitled to indemnification under the preceding paragraph.

 

You shall not be liable for any settlement of any Proceeding effected without your written consent (which consent shall not be unreasonably withheld or delayed), but if settled with your written consent or if there is a final and non-appealable judgment by a court of competent jurisdiction in any such Proceeding, you agree to indemnify and hold harmless each Indemnified Person from and against any and all losses, claims, damages, liabilities and reasonable and documented legal or other out-of-pocket expenses by reason of such settlement or judgment in accordance with and to the extent provided in the other provisions herein.

 

You shall not, without the prior written consent of any Indemnified Person (which consent shall not be unreasonably withheld or delayed), effect any settlement of any pending or threatened proceedings 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 in form and substance reasonably satisfactory to such Indemnified Person from all liability or claims that are the subject matter of such proceedings and (ii) does not include any statement as to or any admission of fault, culpability, wrong doing or a failure to act by or on behalf of any Indemnified Person.

 

You acknowledge that the Commitment Parties and their affiliates may be providing debt financing, equity capital or other services (including financial advisory services) to other persons in respect of which you may have conflicting interests regarding the transactions described herein and otherwise.  Neither the Commitment Parties nor any of their affiliates will use confidential information obtained from you or the Company by virtue of the transactions contemplated by this Commitment Letter

 

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or their other relationships with you in connection with the performance by them of services for other persons, and neither the Commitment Parties nor any of their affiliates will furnish any such information to other persons.  You also acknowledge that neither the Commitment Parties nor any of their affiliates have any obligation to use in connection with the transactions contemplated by this Commitment Letter, or to furnish to you, confidential information obtained by them from other persons.

 

As you know, each Commitment Party and its respective affiliates is a full service securities firm engaged, either directly or through its affiliates, in various activities, including securities trading, commodities trading, investment management, financing and brokerage activities and financial planning and benefits counseling for both companies and individuals.  In the ordinary course of these activities, the Commitment Parties and their respective affiliates may actively engage in commodities trading or trade the debt and equity securities (or related derivative securities) and financial instruments (including bank loans and other obligations) of you, the Company, any of your or their respective subsidiaries and affiliates and other companies which may be the subject of the arrangements contemplated by this letter for their own account and for the accounts of their customers and may at any time hold long and short positions in such securities.  The Commitment Parties and their respective affiliates may also co-invest with, make direct investments in, and invest or co-invest client monies in or with funds or other investment vehicles managed by other parties, and such funds or other investment vehicles may trade or make investments in securities of you, the Company, any of your or their respective subsidiaries and affiliates or other companies which may be the subject of the arrangements contemplated by this Commitment Letter or engage in commodities trading with any thereof.

 

As you know, Goldman, Sachs & Co. has been retained by you (or one of your affiliates) as financial advisor (in such capacity, the “Financial Advisor”) in connection with the Acquisition. You agree to such retention, and further agree not to assert any claim you might allege based on any actual or potential conflicts of interest that might be asserted to arise or result from the engagement of the Financial Advisor, on the one hand, and our and our affiliates’ relationships with you as described and referred to herein, on the other.  Each of the Commitment Parties hereto acknowledges (i) the retention of Goldman, Sachs & Co. as the Financial Advisor and (ii) that such relationship does not create any fiduciary duties or fiduciary responsibilities to such Commitment Party on the part of Goldman Sachs & Co. or its affiliates.

 

The Commitment Parties and their respective affiliates may have economic interests that conflict with those of the Company and you.  You agree that the Commitment Parties will act under this letter as independent contractors and that nothing in this Commitment Letter or the Fee Letter or otherwise will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between the Commitment Parties and you and the Company, your and its respective shareholders or your and its respective affiliates.  You acknowledge and agree that (i) the transactions contemplated by this Commitment Letter and the Fee Letter are arm’s-length commercial transactions between the Commitment Parties, on the one hand, and you and the Company, on the other, (ii) in connection therewith and with the process leading to such transaction each Commitment Party is acting solely as a principal and not as agents or fiduciaries of you, the Company, your and its management, shareholders, creditors or any other person, (iii) the Commitment Parties have not assumed an advisory or fiduciary responsibility or any other obligation in favor of you with respect to the transactions contemplated hereby or the process leading thereto (irrespective of whether the Commitment Parties or any of their respective affiliates have advised or are currently advising you or the Company on other matters) except the obligations expressly set forth in this Commitment Letter and the Fee Letter and (iv) you have consulted your own legal, tax, accounting and financial advisors to the extent you deemed appropriate.  You further acknowledge and agree that you are responsible for making your own independent judgment with respect to such transactions and the process leading thereto.  Please note that the Commitment Parties and their affiliates have not provided any legal, accounting, regulatory or tax advice.  You agree that you will not claim that the Commitment Parties (in their capacity as such) or their applicable affiliates, as the case may

 

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be, have rendered advisory services of any nature or respect, or owe a fiduciary or similar duty to you or your affiliates, in connection with the transactions contemplated by this Commitment Letter or the process leading thereto.

 

This Commitment Letter and any claim, controversy or dispute arising under or related to this Commitment Letter and the commitments hereunder shall not be assignable by any party hereto without the prior written consent of each other party hereto (such consent not to be unreasonably withheld or delayed) (and any attempted assignment without such consent shall be null and void); provided that Goldman may assign its commitments hereunder to Goldman Sachs Lending Partners LLC.  This Commitment Letter and the commitments hereunder are intended to be solely for the benefit of the parties hereto (and Indemnified Persons) and are not intended to confer any benefits upon, or create any rights in favor of, any person other than the parties hereto (and Indemnified Persons to the extent expressly set forth herein).  Subject to the limitations otherwise set forth herein, each Commitment Party reserves the right to employ the services of its respective affiliates or branches in providing services contemplated hereby and to allocate, in whole or in part, to their affiliates or branches certain fees payable to such Commitment Party in such manner as such Commitment Party and its respective affiliates or branches may agree in their sole discretion and, to the extent so employed, such affiliates and branches shall be entitled to the benefits and protections afforded to, and subject to the provisions governing the conduct of, such Commitment Party hereunder.  This Commitment Letter may not be amended or any provision hereof waived or modified except by an instrument in writing signed by each of the Commitment Parties and you.  This Commitment Letter may be executed in any number of counterparts, each of which shall be an original and all of which, when taken together, shall constitute one agreement.  Delivery of an executed counterpart of a signature page of this Commitment Letter by facsimile transmission or other electronic transmission (i.e., a “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart hereof.  This Commitment Letter (including the exhibits hereto) and the Fee Letter (i) are the only agreements that have been entered into among the parties hereto with respect to the Facilities and (ii) supersede all prior understandings, whether written or oral, among us with respect to the Facilities and sets forth the entire understanding of the parties hereto with respect thereto.

 

Each of the parties hereto agrees that (i) this Commitment Letter is a binding and enforceable agreement (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization and other similar laws relating to or affecting creditors’ rights generally and general principles of equity (whether considered in a proceeding in equity or law)) with respect to the subject matter contained herein, including an agreement to negotiate in good faith the Facilities Documentation by the parties hereto in a manner consistent with this Commitment Letter, it being acknowledged and agreed that the funding of the Facilities is subject only to the conditions precedent set forth in the section entitled “Conditions Precedent to Initial Borrowing” in Exhibit B hereto and in Exhibit C hereto and (ii) the Fee Letter is a binding and enforceable agreement (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization and other similar laws relating to or affecting creditors’ rights generally and general principles of equity (whether considered in a proceeding in equity or law)) of the parties thereto with respect to the subject matter set forth therein.

 

THIS COMMITMENT LETTER AND THE RIGHTS AND DUTIES OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK; provided, however, that it is understood and agreed that (a) the interpretation of the definition of “Company Material Adverse Effect” (as referenced in Exhibit C hereto) (and whether or not such Company Material Adverse Effect has occurred), (b) the determination of the accuracy of any Company Representations and whether as a result of any inaccuracy thereof you (or your affiliates) has the right (taking into account any applicable cure provisions) to terminate your (or your affiliates’) obligations under the Acquisition Agreement or decline to consummate the Acquisition and (c) the determination of whether the Tender Offer and the Merger has been consummated in

 

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accordance with the terms of the Acquisition Agreement, in each case of clause (a), (b) and (c) above, shall be governed by, and construed in accordance with, the laws of Delaware, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws thereof.

 

EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY OR ON BEHALF OF ANY PARTY HERETO RELATED TO OR ARISING OUT OF THIS COMMITMENT LETTER OR THE PERFORMANCE OF SERVICES HEREUNDER.

 

Each of the parties 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 New York City in the Borough of Manhattan, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Commitment Letter, the Fee Letter, the Transactions or the transactions contemplated hereby, or for recognition or enforcement of any judgment, and agrees that all claims in respect of any such action or proceeding shall be heard and determined in such New York State court 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 which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Commitment Letter, the Fee Letter, the Transactions or the transactions contemplated hereby in any such New York State court or in any such Federal court, (c) waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court and (d) agrees that a final judgment in any such suit, action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other matter provided by law.  Each of the parties hereto agrees to commence any such action, suit, proceeding or claim either in the United States District Court for the Southern District of New York or in the Supreme Court of the State of New York, New York County located in the Borough of Manhattan.

 

This Commitment Letter is delivered to you on the understanding that none of the Fee Letter and its terms or substance, or, prior to your acceptance hereof, this Commitment Letter and its terms or substance or the activities of any Commitment Party pursuant hereto or to the Fee Letter, shall be disclosed, directly or indirectly, to any other person or entity (including other lenders, underwriters, placement agents, advisors or any similar persons) except (a) to your subsidiaries and affiliates and your and their respective officers, directors, employees, agents, attorneys, accountants, advisors and controlling persons who are informed of the confidential nature thereof, on a confidential and need-to-know basis, (b) if the Commitment Parties consent to such proposed disclosure (such consent not to be unreasonably withheld or delayed) or (c) pursuant to the order of any court or administrative agency in any pending legal or administrative proceeding, or otherwise as required by applicable law, rule or regulation or compulsory legal process or to the extent requested or required by governmental and/or regulatory authorities, in each case based on the reasonable advice of your legal counsel (in which case, you agree, to the extent practicable and not prohibited by applicable law, rule or regulation, to inform us promptly thereof); provided that (i) you may disclose this Commitment Letter (but not the Fee Letter) and the contents hereof to the Company and its officers, directors, employees, agents, attorneys, accountants, advisors and controlling persons, on a confidential and need-to-know basis, (ii) you may disclose the Commitment Letter and its contents in any syndication or other marketing materials in connection with the Facilities (including any Confidential Information Memorandum and other customary marketing materials) or in connection with any public or regulatory filing requirement relating to the Transactions, (iii) you may disclose the Term Sheet and the other exhibits and annexes to the Commitment Letter and the contents thereof, to potential Lenders and their affiliates involved in the related commitments, to equity investors and to rating agencies in connection with obtaining ratings for the Parent, the Borrower and/or any of the Facilities, (iv) you may disclose the aggregate fees contained in the Fee Letter as part of Projections, pro forma information or a generic disclosure of aggregate sources and uses related to fee

 

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amounts related to the Transactions to the extent customary or required in offering and marketing materials for the Facilities or in any public or regulatory filing requirement relating to the Transactions, (v) to the extent the amounts of fees and other economic terms of the market flex provisions set forth therein have been redacted in a customary manner, you may disclose the Fee Letter and the contents thereof to the Company and its officers, directors, employees, agents, attorneys, accountants, advisors and controlling persons, on a confidential and need-to-know basis, (vi) you and the Company may disclose this Commitment Letter (but not the Fee Letter) in any tender offer or proxy or other public filing relating to the Transactions and (vii) you may disclose the Fee Letter and the contents thereof to any prospective Additional Commitment Party or prospective equity investor and their respective officers, directors, employees, attorneys, accountants and advisors, in each case on a confidential basis.  You agree that you will permit each of Goldman and Credit Suisse to review and approve (such approval not to be unreasonably withheld or delayed) any reference to itself or any of its affiliates in connection with the Facilities or the transactions contemplated hereby contained in any press release or similar written public disclosure prior to public release.  The confidentiality provisions set forth in this paragraph shall survive the termination of this Commitment Letter and expire and shall be of no further effect after the second anniversary of the date hereof.

 

Each Commitment Party and its affiliates will use all non-public information provided to any of them or such affiliates by or on behalf of you hereunder or in connection with the Transactions solely for the purpose of providing the services which are the subject of this Commitment Letter and negotiating, evaluating and consummating the transactions contemplated hereby and shall treat confidentially all such information and shall not publish, disclose or otherwise divulge such information; provided that nothing herein shall prevent such Commitment Party from disclosing any such information (a) pursuant to the order of any court or administrative agency or in any pending legal, judicial or administrative proceeding, or otherwise as required by applicable law, rule or regulation or compulsory legal process (in which case such Commitment Party agrees (except with respect to any routine or ordinary course audit or examination conducted by bank accountants or any governmental or bank regulatory authority exercising examination or regulatory authority), to the extent practicable and not prohibited by applicable law, rule or regulation, to inform you promptly thereof prior to disclosure), (b) upon the request or demand of any regulatory authority having jurisdiction over such Commitment Party or any of its affiliates (in which case such Commitment Party agrees (except with respect to any routine or ordinary course audit or examination conducted by bank accountants or any governmental or bank regulatory authority exercising examination or regulatory authority) to the extent practicable and not prohibited by applicable law, rule or regulation, to inform you promptly thereof prior to disclosure), (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 or any related parties thereto in violation of any confidentiality obligations owing to you, the Company or any of your or their respective subsidiaries or affiliates or related parties (including those set forth in this paragraph), (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 owing to you, the Company or any of your or their respective subsidiaries or affiliates or related parties, (e) to the extent that such information was already in our possession prior to any duty or other undertaking of confidentiality or is independently developed by the Commitment Parties without the use of such information, (f) to other Commitment Parties and such Commitment Party’s affiliates and to its and their respective officers, directors, partners, employees, legal counsel, independent auditors and other experts or agents who need to know such information in connection with the Transactions and who are informed of the confidential nature of such information and who are subject to customary confidentiality obligations of professional practice or who agree to be bound by the terms of this paragraph (or language substantially similar to this paragraph) (with each such Commitment Party, to the extent within its control, responsible for such person’s compliance with this paragraph), (g) to potential or prospective Lenders, hedge providers, participants or assignees, in each case who agree (pursuant to customary syndication practice) to be bound by the terms of this paragraph (or language substantially

 

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similar to this paragraph); provided that (i) the disclosure of any such information to any Lenders, hedge providers or prospective Lenders, hedge providers or participants or prospective participants referred to above shall be made subject to the acknowledgment and acceptance by such Lender, hedge provider 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 each Commitment Party, including, without limitation, as agreed in any Information Materials or other marketing materials) in accordance with the standard syndication processes of such Commitment Party or customary market standards for dissemination of such type of information, which shall in any event require “click through” or other affirmative actions on the part of recipient to access such information and (ii) no such disclosure shall be made by such Commitment Party to any person that is at such time a Disqualified Lender, (h) for purposes of establishing a “due diligence” defense or (i) to rating agencies in connection with obtaining ratings for Parent, the Borrower and/or any of the Facilities.  In addition, each Commitment Party may disclose the existence of the Facilities to market data collectors, similar service providers to the lending industry and service providers to the Commitment Parties in connection with the administration and management of the Facilities.  In the event that the Facilities are funded, the Commitment Parties’ and their respective affiliates’, if any, obligations under this paragraph, shall terminate automatically and be superseded by the confidentiality provisions in the Facilities Documentation upon the initial funding thereunder to the extent that such provisions are binding on such Commitment Parties.  Otherwise, the confidentiality provisions set forth in this paragraph shall survive the termination of this Commitment Letter and expire and shall be of no further effect after the second anniversary of the date hereof.

 

The syndication, reimbursement (if applicable), compensation (if applicable in accordance with the terms hereof and the Fee Letter), indemnification, confidentiality, jurisdiction, governing law, absence of fiduciary relationship and waiver of jury trial provisions contained herein and in the Fee Letter shall remain in full force and effect regardless of whether Facilities Documentation shall be executed and delivered and notwithstanding the termination of this Commitment Letter or the Commitment Parties’ commitments hereunder; provided that your obligations under this Commitment Letter, other than those relating to confidentiality and to the syndication of the Facilities, shall automatically terminate and be superseded by the corresponding provisions of the Facilities Documentation upon the initial funding thereunder, and you shall be automatically released from all liability in connection therewith at such time.  You may terminate this Commitment Letter and the Initial Lenders’ commitments with respect to the Facilities hereunder in full but not in part at any time subject to the provisions of the preceding sentence.

 

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, as amended from time to time, the “PATRIOT Act”), each of us and each of the Lenders may be required to obtain, verify and record information that identifies the Borrower and the Guarantors, which information may include their names, addresses, tax identification numbers and other information that will allow each of us and the Lenders to identify the Borrower and Guarantors in accordance with the PATRIOT Act.  This notice is given in accordance with the requirements of the PATRIOT Act and is effective as to each of us and each Lender.

 

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 Administrative Agent on behalf of the Commitment Parties executed counterparts hereof and of the Fee Letter not later than 11:59 p.m., New York City time, on December 6, 2016.  The Initial Lenders’ respective commitments hereunder and the obligations and agreements of the Commitment Parties contained herein will expire at such time in the event that the Administrative Agent has not received such executed counterparts in accordance with the immediately preceding sentence.  If you do so execute and deliver to us this Commitment Letter and the Fee Letter, this Commitment Letter and the commitments and undertakings of each of the Commitment Parties shall remain effective and available for you until the earliest to occur of (i) after execution of the

 

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Acquisition Agreement and prior to the consummation of the Acquisition, the termination of the Acquisition Agreement by you (or your affiliates) in writing or with your (or your affiliates’) written consent or otherwise in accordance with its terms (other than with respect to provisions therein that expressly survive termination), prior to closing of the Acquisition, (ii) the consummation of the Acquisition with or without the funding of the Facilities and (iii) 11:59 p.m., New York City time, on April 7, 2017.  Upon the occurrence of any of the events referred to in the preceding sentence, this Commitment Letter and the commitments of the Commitment Parties hereunder and the agreement of the Commitment Parties to provide the services described herein shall automatically terminate unless each of the Commitment Parties shall, in its sole discretion, agree to an extension.

 

[Remainder of this page intentionally left blank]

 

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The Commitment Parties are pleased to have been given the opportunity to assist you in connection with the financing for the Acquisition.

 

	
 
    	
Very truly yours,
    
	
 
    	
 
    
	
 
    	
GOLDMAN   SACHS BANK USA
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
 
    	
/s/ Robert Ehudin
    
	
 
    	
 
    	
Name: Robert Ehudin
    
	
 
    	
 
    	
Title:  Authorized Signatory
    


 











 

	
 
    	
CREDIT SUISSE AG,   CAYMAN ISLANDS BRANCH
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
 
    	
/s/ Robert Hetu
    
	
 
    	
 
    	
Name: Robert Hetu
    
	
 
    	
 
    	
Title:  Authorized Signatory
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
 
    	
/s/ Nicholas Goss
    
	
 
    	
 
    	
Name: Nicholas Goss
    
	
 
    	
 
    	
Title:  Authorized Signatory
    
	
 
    	
 
    	
 
    
	
 
    	
CREDIT SUISSE   SECURITIES (USA) LLC
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
 
    	
/s/ Phyanke Verme
    
	
 
    	
 
    	
Name: Phyanke Verme
    
	
 
    	
 
    	
Title:  Director
    


 











 

	
Accepted and agreed to   as of 
   the date first above written:
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
SYNCHRONOSS   TECHNOLOGIES, INC.
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
By:
    	
 
    	
 
    	
 
    
	
 
    	
/s/ Stephen G. Waldis
    	
 
    	
 
    	
 
    
	
 
    	
Name:  Stephen G. Waldis
    	
 
    	
 
    
	
 
    	
Title:    Chief Executive Officer
    	
 
    	
 
    
					


 











 

	
CONFIDENTIAL
    	
EXHIBIT A
    


 

Project GL
 Transaction Description

 

Capitalized terms used but not defined in this Exhibit A shall have the meanings set forth in the other Exhibits to the Commitment Letter to which this Exhibit A is attached (the “Commitment Letter”) or in the Commitment Letter.

 

Parent intends to acquire, directly or indirectly, all of the outstanding equity interests of the entity previously identified by us to you as “GL”, a Delaware corporation (the “Company”).

 

In connection with the foregoing, it is intended that:

 

a)             Parent (or one of its direct or indirect subsidiaries) has established GL Merger Sub, Inc., a newly formed Delaware corporation (“Merger Sub”) and direct or indirect wholly-owned subsidiary of Parent.

 

b)             Pursuant to the agreement and plan of merger (together with all exhibits and schedules thereto, collectively, the “Acquisition Agreement”), dated on or about the date hereof, by and among Parent, Merger Sub and the Company, Parent will directly or indirectly acquire (collectively, the “Acquisition”) all of the issued and outstanding common stock of the Company by means of a purchase of such shares of the Company pursuant to a tender offer (the “Tender Offer”) and subsequent consummation of a short-form merger (the “Merger”) whereby Merger Sub will be merged with and into the Company.  Pursuant to the Acquisition, the existing shareholders of the Company shall have the right to receive the amount required to consummate the Acquisition (the “Acquisition Consideration”) in accordance with the terms of the Acquisition Agreement.

 

c)              The proceeds from the Facilities shall be used for (i) Acquisition Consideration, (ii) to redeem, refinance or repay (x) the Credit Agreement, dated as of February 24, 2014, between the Company and the financial institutions listed therein as lenders, JPMorgan Chase Bank, N.A. as administrative agent and collateral agent and J.P. Morgan Securities LLC as lead arranger and sole bookrunner, as amended, (y) the Credit Agreement, dated as of February 24, 2014, between the Company and JPMorgan Chase Bank, N.A. as lender, as amended) and (z) the Amended and Restated Credit Agreement dated as of July 7, 2016 (the “Parent Existing Credit Agreement”), by and among Parent, Wells Fargo Bank, National Association, as administrative agent, and the lenders and other parties party thereto, as amended (the “Refinancing”), and to pay fees, premiums and expenses incurred in connection with the Transactions (such fees, premiums and expenses, the “Transaction Costs”, and together with the Acquisition Consideration and the Refinancing, the “Acquisition Funds”).

 

d)             The Borrower will obtain $900 million under the Term Loan Facility and will obtain commitments of up to $250 million under the Revolving Facility, in each case, on the Closing Date.

 

The transactions described above and the payment of related fees and expenses are collectively referred to herein as the “Transactions”.

 












 

	
CONFIDENTIAL
    	
EXHIBIT B
    


 

Project GL
 $900 million Term Loan Facility

$250 million Revolving Facility

Summary of Principal Terms and Conditions

 

All capitalized terms used but not defined herein shall have the meanings given to them in the Commitment Letter to which this term sheet is attached, including Exhibit A thereto.

 

	
Borrower:
    	
 
    	
The Parent (in such   capacity, the “Borrower”).
    
	
 
    	
 
    	
 
    
	
Transaction:
    	
 
    	
As set forth in   Exhibit A to the Commitment Letter.
    
	
 
    	
 
    	
 
    
	
Administrative Agent:
    	
 
    	
Goldman Sachs Bank USA   (“Goldman”) will act as sole and   exclusive administrative agent and collateral agent (in such capacity, the “Administrative Agent”) in respect   of the Facilities (as hereinafter defined) for a syndicate of banks,   financial institutions and other institutional lenders reasonably acceptable   to the Borrower and excluding any Disqualified Lenders (together with the   Initial Lenders, the “Lenders”),   and will perform the duties customarily associated with such roles.
    
	
 
    	
 
    	
 
    
	
Joint Bookrunners and   Lead Arrangers:
    	
 
    	
Each of Goldman and   Credit Suisse Securities (USA) LLC will act as a lead arranger and joint   bookrunner (together with any additional joint bookrunner appointed pursuant   to the Commitment Letter, each in such capacity, a “Lead   Arranger”) and will perform the duties customarily associated   with such roles.
    
	
 
    	
 
    	
 
    
	
Other Agents:
    	
 
    	
The Borrower may   designate additional financial institutions reasonably acceptable to the Lead   Arrangers (such consent not to be unreasonably withheld, delayed or   conditioned) to act as syndication agent, documentation agent or   co-documentation agent as provided in the Commitment Letter for each of the   Facilities.
    
	
 
    	
 
    	
 
    
	
Facilities:
    	
 
    	
A senior secured term   loan B facility in an aggregate principal amount of $900 million (the “Term Loan Facility”; the loans   thereunder, the “Term Loans”; the Lenders   thereunder, the “Term Loan Lenders”).

 

A senior secured   revolving credit facility in an aggregate principal amount of $250 million   (the “Revolving Facility” and   together with the Term Loan Facility, the “Facilities”;   the commitments thereunder, the “Revolving Commitments”;   the loans thereunder, the “Revolving Loans”   and together with the Term Loans, the “Loans”;   the Lenders thereunder, the “Revolving Lenders”),   of which a portion shall be available in the form of Letters of Credit (as   defined below) as set forth in the “Letters of Credit” section below.
    
	
 
    	
 
    	
 
    
	
Swingline:
    	
 
    	
In connection with the   Revolving Facility, the Administrative Agent (in such capacity, the “Swingline Lender”) will make   available to the Borrower a swingline facility (the “Swingline   Facility”) under which the Borrower may make short-term   borrowings (on same-day notice (in minimum amounts to be mutually agreed upon   and integral multiples to be agreed upon)) of up to an amount to be
    


 











 

	
 
    	
 
    	
agreed.  Except for purposes of calculating the   commitment fee described on Annex I to this Exhibit B, any such   swingline borrowings will reduce availability under the Revolving Facility on   a dollar-for-dollar basis.
    
	
 
    	
 
    	
 
    
	
Incremental Facilities:
    	
 
    	
The Facilities will   permit the Borrower to add one or more incremental term facilities to the   Facilities or increase the Term Loan Facility (each, an “Incremental   Term Facility”), and/or increase commitments under the   Revolving Facility Commitments (any such increase, an “Incremental   Revolving Increase”) and/or add one or more incremental   revolving credit facility tranches (each, an “Incremental   Revolving Facility”; the Incremental Term Facilities, the   Incremental Revolving Increases and the Incremental Revolving Facilities are   collectively referred to as “Incremental Facilities”)   in an aggregate principal amount of up to the greater of (x) $300   million (the “Incremental Fixed Dollar Basket”)   (plus all voluntary prepayments (excluding voluntary prepayments made at a   discount to par) and voluntary commitment reductions of the Facilities prior   to the date of any such incurrence (to the extent not funded with the   proceeds of long term debt)) and (y) an amount such that, after giving   effect to the incurrence of such amount, the First Lien Net Leverage Ratio   (as defined below) is equal to or less than the First Lien Net Leverage Ratio   on the Closing Date (in each case, assuming all such additional amounts were   secured on a first lien basis, whether or not so secured, and including for   this purpose the full amount of any Incremental Revolving Increase or   Incremental Revolving Facility and without netting any cash proceeds of such incurrence),   subject to the following conditions:

 

(i)             no existing Lender will be required to   participate in any such Incremental Facilities,

 

(ii)          no event of default has occurred and is   continuing, or would result therefrom (except where waived by the lenders in   respect of such Incremental Facility in connection with acquisitions or   similar investments subject to customary “funds certain” conditions, where no   payment or bankruptcy event of default will be the standard),

 

(iii)       the final maturity date and the weighted   average maturity of any such Incremental Term Facility in the form of a term   loan B or similar form of institutional term loan (excluding, for avoidance   of doubt, an amortizing Incremental Term Facility in the form of a “term loan   A” or similar form) shall not be earlier than, or shorter than, as the case   may be, the maturity date or the weighted average life, as applicable, of the   Term Loan Facility,

 

(iv)      the pricing, interest rate margins, discounts,   premiums, rate floors, fees and amortization schedule applicable to any   Incremental Term Facility shall be determined by the Borrower and the lenders   thereunder; provided that, with respect to   any Incremental Term Facility in the form of a term loan B or similar form of   institutional term loan that matures earlier than two years after the   maturity date with respect to the Term Loan Facility (the “MFN Maturity Limitation”), only   during the period commencing on the Closing Date and ending on the date that   is 18 months after the Closing Date (the “MFN   Sunset Date”), if the applicable interest rate relating to any   such Incremental Term Facility exceeds the applicable 
    


 

B-2











 

	
 
    	
 
    	
interest rate relating   to the Term Loan Facility by more than 0.50% (the “MFN   Margin”) the applicable interest rate relating to the Term   Loan Facility shall be adjusted to be equal to the applicable interest rate   relating to such Incremental Term Facility minus the MFN Margin at such time;   provided that in determining such   applicable interest rates, (x) OID or upfront fees (which shall be   deemed to constitute a like amount of OID) paid by the Borrower to the   lenders under such Incremental Term Facility (but exclusive of any   arrangement, structuring or other fees payable in connection therewith that   are not shared with lenders providing such Incremental Term Facility) and the   Term Loan Facility in the initial primary syndication thereof shall be   included and equated to interest rate (with OID being equated to interest   based on an assumed four-year life to maturity) and (y) any amendments   to the applicable margin on the existing Term Loan Facility that became   effective subsequent to the Closing Date but prior to the time of such   Incremental Term Facility shall also be included in such calculations; provided, further, that (A) with respect to the   existing Term Loan Facility, to the extent that LIBOR for a three month   interest period on the closing date of any such Incremental Term Facility is   less than the interest rate floor applicable to any such existing Term Loan   Facility, the amount of such difference shall be deemed added to the interest   margin for the existing Term Loans, solely for the purpose of determining   whether an increase in the interest rate margins for the existing Term Loans   shall be required and (B) with respect to any Incremental Term Loan   Facility, to the extent that LIBOR, as applicable to the existing Term Loan Facility   for a three month interest period on the closing date of any such Incremental   Term Facility is less than the interest rate floor, if any, applicable to any   such Incremental Term Facility, the amount of such difference shall be deemed   added to the interest rate margins for the loans under the Incremental Term   Facility (this clause (iv), the “MFN Protection”),

 

(v)         any Incremental Revolving Facility and any   Incremental Revolving Increase shall be on the same terms and pursuant to the   same documentation applicable to the Revolving Facility (including the   maturity date in respect thereof (provided the applicable margin applicable   thereto may be increased if necessary to be consistent with that for the   Incremental Revolving Facility)), and

 

(vi)      any Incremental Term Facility shall be on terms   and pursuant to documentation to be determined by the Borrower, provided that, to the extent such terms and documentation   are not consistent with, the Term Loan Facility (except to the extent   permitted by clause (iii) or (iv) above), they shall be reasonably   satisfactory to the Administrative Agent (except for covenants or other   provisions applicable only to the periods after the latest maturity date of   the Term Loan Facility or any existing Incremental Term Facility existing at   the time such Incremental Term Facility is incurred) (it being understood to   the extent that any financial maintenance covenant is added for the benefit   of any Incremental Term Facility, no consent shall be required from any Administrative   Agent or any Lender to the extent that such financial maintenance covenant is   also added for the 
    


 

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benefit of the Term   Loan Facility).
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
As   used herein, (a) the “First Lien Leverage   Ratio” means the ratio of total senior secured first lien net   debt (calculated net of unrestricted cash and cash equivalents) for borrowed   money (as well as capital leases and purchase money obligations) secured by   first priority liens on assets of the Credit Parties to trailing four-quarter   EBITDA, (b) the “Senior Secured Leverage   Ratio” means the ratio of total secured net debt (calculated   net of unrestricted cash and cash equivalents) for borrowed money (as well as   capital leases and purchase money obligations) secured by liens on assets of   the Credit Parties to trailing four-quarter EBITDA and (c) the “Total Leverage Ratio” means the   ratio of total net debt (calculated net of unrestricted cash and cash   equivalents other than the proceeds of Incremental Term Facilities to be   drawn at such time) for borrowed money, capital leases and purchase money   obligations to trailing four-quarter EBITDA.

 

The Facilities will   permit the Borrower to utilize availability under the Incremental Facilities   amount to issue first lien indebtedness (provided that any first lien term   loans in the form of a term loan B or similar form of institutional term loan   shall be subject to the MFN Protection) or junior lien secured indebtedness   (in each case, subject to customary intercreditor terms to be mutually agreed   and set forth in an exhibit to the definitive documentation for the   Facilities (the “Intercreditor Terms”), and   such indebtedness, “Incremental Equivalent   Debt”), or unsecured indebtedness, with the amount of such   secured or unsecured indebtedness reducing the aggregate principal amount   available for the Incremental Facilities; provided that   such secured or unsecured indebtedness (i) does not mature on or prior to   the maturity date of, or have a shorter weighted average life than, loans   under the Term Loan Facility, (ii) reflects terms not materially more   favorable to lenders than the Term Loan Facility (it being understood to the   extent that any financial maintenance covenant is added for the benefit of   any such debt, such financial maintenance covenant shall also be added for   the benefit of any corresponding existing Facility), (iii) there shall   be no borrower or guarantor in respect of any such indebtedness that is not   the Borrower or a Guarantor and (iv) if secured, such indebtedness shall   not be secured by any assets of the Borrower or its subsidiaries that do not   constitute Collateral.
    
	
 
    	
 
    	
 
    
	
Purpose/Use of Proceeds:
    	
 
    	
(A) The proceeds   of borrowings under the Term Loan Facility will be used by the Borrower, on   the date of the initial borrowing under the Facilities (the “Closing Date”), together with the   proceeds of the Revolving Loans and cash on hand of the Borrower and the   Company, solely to provide Acquisition Funds.

 

(B) The Letters of   Credit and proceeds of Revolving Loans will be used by the Borrower and its   subsidiaries for working capital and for other general corporate purposes   (including to finance the Transactions and any other transactions not   prohibited by the Facilities Documentation).
    
	
 
    	
 
    	
 
    
	
Availability:
    	
 
    	
(A) The Term Loan   Facility will be available in a single drawing on the Closing Date.  Amounts borrowed under the Term Loan   Facility that are repaid or prepaid may not be reborrowed.

 

(B) (i) Revolving   Loans (exclusive of Letter of Credit usage) may be made available on the   Closing Date to finance the Transactions in an aggregate amount 
    


 

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not to exceed $10 million   and (ii) any amount needed to fund any OID or upfront fees required to   be funded on the Closing Date due to the exercise of the “Market Flex   Provisions” under the Fee Letter may be funded with Revolving Loans on the   Closing Date.  Additionally, Letters of   Credit may be issued on the Closing Date in order to backstop or replace   letters of credit outstanding on the Closing Date under the facilities no   longer available to the Company or any of its affiliates as of the Closing   Date (and such existing letters of credit may be deemed Letters of Credit   outstanding under the Revolving Facility).    Otherwise, Revolving Loans will be available at any time prior to the   final maturity of the Revolving Facility, in minimum principal amounts to be   agreed upon.  Amounts repaid under the   Revolving Facility may be reborrowed.
    
	
 
    	
 
    	
 
    
	
Interest Rates and Fees:
    	
 
    	
As   set forth on Annex I to this Exhibit B.
    
	
 
    	
 
    	
 
    
	
Default Rate:
    	
 
    	
During the continuance   of any payment or bankruptcy event of default under the Facilities Documentation,   with respect to overdue principal, the applicable interest rate plus 2.00%   per annum, and with respect to any other overdue amount, including overdue   interest, the interest rate applicable to ABR loans (as defined in Annex I)   plus 2.00% per annum.
    
	
 
    	
 
    	
 
    
	
Letters of Credit:
    	
 
    	
No less than an amount   to be agreed of the Revolving Facility will be available to the Borrower for   the purpose of issuing letters of credit and each Lender that agrees in   writing to be an Issuing Lender (as defined below) in a fronting capacity for   such amount.  Letters of Credit will be   issued by the Administrative Agent and other Revolving Lenders (reasonably   acceptable to the Borrower and the Administrative Agent) who agree to issue   Letters of Credit (each, an “Issuing Lender”).  Each Letter of Credit shall expire not   later than the earlier of (a) 12 months after its date of issuance or   such longer period of time as may be agreed by the applicable Issuing Lender   and (b) the fifth business day prior to the final maturity of the   Revolving Facility; provided that   any Letter of Credit may provide for automatic renewal thereof for additional   periods of up to 12 months or such longer period of time as may be agreed by   the applicable Issuing Lender (which in no event shall extend beyond the date   referred to in clause (b) above, except to the extent cash   collateralized or backstopped pursuant to arrangements reasonably acceptable   to the relevant Issuing Lender, provided that   no Revolving Lender shall be required to fund participations in Letters of   Credit after the maturity date applicable to its commitments).  The issuance of all letters of credit shall   be subject to the customary policies and procedures of the relevant Issuing   Lender.
    
	
 
    	
 
    	
 
    
	
Final Maturity and Amortization:
    	
 
    	
(A)                               The   Term Loan Facility

 

The Term Loan Facility   will mature on the date that is seven years after the Closing Date and,   commencing at least one full fiscal quarter after the Closing Date, will   amortize in equal quarterly installments in aggregate annual amounts equal to   1.00% of the original principal amount of the Term Loan Facility with the   balance payable on the seventh anniversary of the Closing Date; provided that the Facilities Documentation shall provide   the right of individual Term Loan Lenders to agree to extend the maturity of   their Term Loans upon the request of the Borrower and without the consent of   any other Lender (as further described
    


 

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below).

 

(B)                               Revolving   Facility

 

The Revolving Facility   will mature, and Revolving Commitments will terminate, on the date that is   five years after the Closing Date; provided   that the Facilities Documentation shall provide the right of individual   Revolving Lenders to agree to extend the maturity of their Revolving   Commitments and Revolving Loans upon the request of the Borrower and without   the consent of any other Lender (as further described below).

 

The Facilities   Documentation shall contain customary “amend and extend” provisions pursuant to   which any individual Lender may agree to extend (which may include, among   other things, an increase in the interest rates payable with respect to such   extended loans, which extensions shall not be subject to any “default   stopper”, financial tests or “most favored nation pricing provisions”) the   maturity date of its outstanding commitments in respect of the Revolving   Facility or under any Incremental Revolving Facility or in respect of any   class of Term Loans (including any Incremental Term Loans), in each case,   upon the request of the Borrower  and   without the consent of any other Lender (it is understood that (i) no   existing Lender will have any obligation to commit to any such extension and   (ii) each Lender under the class being extended shall have the opportunity   to participate in such extension on the same terms and conditions as each   other Lender under such class).
    
	
 
    	
 
    	
 
    
	
Guarantees:
    	
 
    	
All obligations of the   Borrower (the “Obligations”) under   (i) the Facilities (“Facilities Obligations”),   (ii) at the written request of the Borrower, interest rate protection,   commodity trading or hedging, currency exchange or other non-speculative   hedging or swap arrangements (other than any obligation of any Guarantor to   pay or perform under any agreement, contract, or transaction that constitutes   a “swap” within the meaning of Section 1a(47) of the Commodity Exchange   Act (a “Swap”), if, and to the   extent that, all or a portion of the guarantee by such Guarantor of, or the   grant by such Credit Party of a security interest to secure, such Swap (or   any guarantee thereof) is or becomes illegal or unlawful under the Commodity   Exchange Act or any rule, regulation, or order of the Commodity Futures   Trading Commission (or the application or official interpretation of any thereof))   entered into by the Borrower or any of its restricted subsidiaries with the   Administrative Agent, any Lender, Lead Arranger or any affiliate of the   Administrative Agent, a Lender or Lead Arranger at the time of entering into   such arrangements (the “Hedging Arrangements”)   (collectively, “Hedging Obligations”) and   (iii) at the written request of the Borrower, cash management and   treasury arrangements entered into by the Borrower or any of its restricted   subsidiaries with the Administrative Agent, any Lender, Lead Arranger or any   affiliate of the Administrative Agent, a Lender or Lead Arranger at the time   of entering into such arrangement (“Treasury Arrangements”)   (collectively, “Cash Management Obligations”)   will be unconditionally guaranteed jointly and severally on an equal priority   senior secured basis (the “Guarantees”)   by each existing and subsequently acquired or organized direct or indirect   wholly-owned U.S. restricted subsidiary of the Borrower (other than any such   subsidiary (a) that is a subsidiary of a non-U.S. subsidiary of the   Borrower that is a “controlled foreign corporation” within the meaning of   Section 957 of the Code (a “CFC”),
    


 

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(b) that is a U.S.   subsidiary that has no material assets other than the capital stock of one or   more direct or indirect non-U.S. subsidiaries that are CFCs (a “CFC Holdco”), (c) that has   been designated as an unrestricted subsidiary, (d) that is below a   materiality threshold (based on assets or revenues) to be agreed,   (e) that is not permitted by law, regulation or contract (permitted   under the Facilities Documentation) (with respect to any such contract, only   to the extent existing on the Closing Date or on the date the applicable person   becomes a direct or indirect subsidiary of the Borrower and not incurred in   contemplation thereof) to provide such guarantee, or would require   governmental (including regulatory) consent, approval, license or   authorization to provide such guarantee, (unless such consent, approval,   license or authorization has been received), or for which the provision of   such guarantee would result in a material adverse tax consequence to the   Borrower or one of its subsidiaries (as reasonably determined by the Borrower   in consultation with the Administrative Agent), (f) that is a special   purpose entity (including not for profit entities and captive insurance   companies) or (g) any restricted subsidiary acquired pursuant to a   Permitted Acquisition (to be defined in a manner to be mutually agreed))   financed with secured indebtedness permitted to be incurred pursuant to the   Facilities Documentation as assumed indebtedness (and not incurred in   contemplation of such Permitted Acquisition) and any restricted subsidiary   thereof that guarantees such indebtedness, in each case to the extent such   secured indebtedness prohibits such subsidiary from becoming a Guarantor)   (the “Guarantors”; and together   with the Borrower, the “Credit Parties”).  In addition, certain subsidiaries may be   excluded from the guarantee requirements under the Facilities Documentation   in circumstances where the Borrower and the Administrative Agent reasonably   agree that the cost of providing such a guarantee is excessive in relation to   the value afforded thereby.  
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
Subject only to the   restricted payment covenant in the Facilities Documentation and (i) no   continuing event of default and (ii) pro forma compliance with the   Financial Covenant (whether or not then in effect), the Borrower may   designate any subsidiary as an “unrestricted subsidiary” and subsequently   redesignate any such unrestricted subsidiary as a restricted subsidiary.  Unrestricted subsidiaries will be excluded   from the guarantee requirements and will not be subject to the   representations and warranties, covenants, events of default or other   provisions of the Facilities Documentation, and the results of operations and   indebtedness of unrestricted subsidiaries will not be taken into account for   purposes of calculating any financial metric contained in the Facilities   Documentation except to the extent of distributions received therefrom.
    
	
 
    	
 
    	
 
    
	
Security:
    	
 
    	
Subject to the   limitations set forth below in this section, and, on the Closing Date, the   Funding Conditions Provisions, Facilities Obligations, the Guarantees in   respect of the Facilities Obligations, the Hedging Arrangements and the   Treasury Arrangements (collectively, the “Secured   Obligations”) will be secured on a first priority basis by   substantially all of the present and after acquired assets of each of the   Credit Parties (collectively, but excluding the Excluded Assets (as defined   below), the “Collateral”), including,   (a) a perfected first priority pledge of all the capital stock of each   direct, wholly owned material restricted subsidiary held by any Credit Party   (which pledge, in the case of any foreign subsidiary that is a CFC or any CFC   Holdco shall be limited to 66% of the voting capital stock and 100% of the   non-voting capital stock of such CFC or CFC Holdco) and (b) a perfected   security interest in substantially all other tangible and intangible assets   of the
    


 

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Credit Parties   (including but not limited to accounts receivable, inventory, equipment,   general intangibles, investment property, real property, intellectual   property and the proceeds of the foregoing).
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
Notwithstanding   anything to the contrary, the Collateral shall exclude the following:   (i) any fee owned real property with a value of less than an amount to   be agreed (with all required mortgages being permitted to be delivered   post-closing) and all leasehold interests in real property (including   requirements to deliver landlord lien waivers, estoppels and collateral   access letters), (ii) motor vehicles and other assets subject to   certificates of title, letter of credit rights (other than to the extent such   rights can be perfected by filing a UCC-1) and commercial tort claims below a   threshold to be agreed, (iii) control agreements or other control   arrangements (other than delivery of certificated pledged capital stock to   the extent required above and material promissory notes constituting   Collateral), including with respect to deposit accounts, securities accounts   and commodities accounts shall not be required, (iv) those assets over   which the granting of security interests in such assets would be prohibited   by contract binding on such assets at the time of their acquisition and not   entered into in contemplation of such acquisition, applicable law or   regulation (in each case, except to the extent such prohibition is   unenforceable after giving effect to applicable provisions of the Uniform   Commercial Code, other than proceeds thereof, the assignment of which is   expressly deemed effective under the Uniform Commercial Code notwithstanding   such prohibitions) or to the extent that such security interests would require   obtaining the consent of any governmental authority which has not been   obtained, or would result in materially adverse tax consequences as   reasonably determined by the Borrower in consultation with the Administrative   Agent, (v) any foreign collateral or credit support (other than 66% of   the voting capital stock and 100% of the non-voting capital stock of   first-tier CFCs otherwise permitted to be pledged), (vi) margin stock   and, to the extent requiring the consent of one or more third parties or prohibited   by the terms of any applicable organizational documents, joint venture   agreement or shareholders’ agreement, equity interests in any person other   than wholly-owned subsidiaries (in each case, except to the extent such   prohibition is unenforceable after giving effect to applicable provisions of   the Uniform Commercial Code, other than proceeds thereof, the assignment of   which is expressly deemed effective under the Uniform Commercial Code   notwithstanding such prohibitions), (vii) those assets as to which the   Administrative Agent and the Borrower reasonably determine in writing that   the cost of obtaining such a security interest or perfection thereof are   excessive in relation to the benefit to the Lenders of the security to be   afforded thereby, (viii) any intent-to-use trademark application prior   to the filing of a “Statement of Use” or “Amendment to Allege Use” with   respect thereto, (ix) any lease, license or other agreement or any   property subject to a purchase money security interest, capital lease obligation   or similar arrangement to the extent that a grant of a security interest   therein would violate or invalidate such lease, license or agreement or   purchase money, capital lease or similar arrangement or create a right of   termination in favor of any other party thereto (other than the Borrower or a   Guarantor) after giving effect to the applicable anti-assignment provisions   of the Uniform Commercial Code), other than proceeds and receivables thereof,   the assignment of which is expressly deemed effective under the Uniform   Commercial Code notwithstanding such prohibition and (x) other   exceptions to be mutually agreed or that are usual and customary for   facilities of this type.  The 
    


 

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foregoing described in   clauses (i) through (x) are, collectively, the “Excluded Assets”.
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
No actions in any   non-U.S. jurisdiction or required by the laws of any non-U.S. jurisdiction   shall be required to be taken to create any security interests in assets   located or titled outside of the U.S. or to perfect or make enforceable any   security interests in any assets (it being understood that there shall be no   security agreements or pledge agreements governed under the laws of any non   U.S. jurisdiction).
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
All the above-described   pledges, security interests and mortgages shall be created and perfected on   terms in Facilities Documentation, and none of the Collateral or other assets   of the Credit Parties shall be subject to other pledges, security interests   or mortgages, subject to customary exceptions for financings of this kind.
    
	
 
    	
 
    	
 
    
	
Mandatory Prepayments:
    	
 
    	
The Term Loans shall be   prepaid with (a) commencing with the fiscal year of the Borrower ending   December 31, 2017, 50% of Excess Cash Flow (to be defined in a manner to   be mutually agreed (and, in any event, to include deduction for all cash   restructuring charges and investments, capital expenditures, restricted   payments and to be used to fund planned acquisitions, investments or capital   expenditures in cash, subject to certain limitations to be agreed)) of the   Borrower, with a reduction to 25% and elimination based upon achievement of   First Lien Leverage Ratios of 0.25x inside the First Lien Leverage Ratio as   of the Closing Date and 0.75x inside the First Lien Leverage Ratio as of the   Closing Date, respectively; provided that   (i) any voluntary prepayments or commitment reductions of loans under   the Facilities (including, without duplication, prepayments at a discount to   par offered to all Lenders under the Term Loan Facility or under any   Incremental Term Facility, with credit given for the actual amount of the   cash payment) shall be credited against excess cash flow prepayment   obligations of any fiscal year on a dollar-for-dollar basis (other than to the   extent such prepayments are funded with the proceeds of long-term   indebtedness) (with the First Lien Leverage Ratio of the Borrower for   purposes of determining the applicable Excess Cash Flow percentage above,   recalculated to give pro forma effect to any such pay down or reduction after   the end of the prior fiscal year and prior to making such Excess Cash Flow   payment) and (ii) no Excess Cash Flow payment shall be required if   Excess Cash Flow during such year is equal to or less than $5 million; (b) 100%   of the net cash proceeds received from the incurrence of indebtedness by the   Borrower or any of its restricted subsidiaries (other than indebtedness   permitted under the Facilities Documentation (other than Refinancing Debt)   (to be defined in a manner to be mutually agreed)) and (c) 100% of the   net cash proceeds of all non-ordinary course asset sales or other   dispositions of property by the Borrower and its restricted subsidiaries   (including insurance and condemnation proceeds) in excess of an amount to be   agreed for each individual asset sale or disposition and an amount to be   agreed in the aggregate for any fiscal year (with only the amount in excess   of such annual limit required to be offered to prepay) and subject to the   right of the Borrower to reinvest such proceeds if such proceeds are   reinvested (or committed to be reinvested) within 12 months and, if so   committed to reinvestment, reinvested within 6 months thereafter, and other   exceptions to be agreed upon.
    


 

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Notwithstanding the   foregoing, mandatory prepayments shall be limited to the extent that the   Borrower determines in good faith that such prepayments would either   (i) result in material adverse tax consequences related to the   repatriation of funds in connection therewith by non-guarantor subsidiaries   or (ii) be prohibited or delayed by applicable law.

 

Mandatory prepayments   required under the Facilities Documentation may, if required pursuant to the   terms of any other indebtedness secured pari passu with the Facilities, be   applied to the Term Loans outstanding under the applicable Facility and such   other pari passu indebtedness, in each case on a ratable basis based on the   outstanding principal amounts thereof (or if so provided under the terms of   such other pari passu indebtedness, applied on a less than ratable basis to   the amounts outstanding under such indebtedness).
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
Within the Term Loan   Facility, mandatory prepayments shall be applied first, to accrued interest   and fees due on the amount of the prepayment under the Term Loan Facility and   second, directly to the scheduled installments of principal of the Term Loan   Facility in direct order of maturity.
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
Any Term Loan Lender   may elect not to accept any mandatory prepayment made pursuant to clause   (a) or (c) above (each a “Declining Lender”).  Any prepayment amount declined (such   amount, a “Declined Amount”) by a   Declining Lender may be retained by the Borrower and shall be added to the   Available Amount Basket (as defined below).
    
	
 
    	
 
    	
 
    
	
Voluntary Prepayments   and Reductions in Commitments:
    	
 
    	
Voluntary reductions of   the unutilized portion of the Revolving Commitments and prepayments of   borrowings under the Facilities will be permitted at any time, in minimum   principal amounts to be agreed upon, without premium or penalty, subject to   reimbursement of the Lenders’ redeployment costs actually incurred in the   case of a prepayment of LIBOR borrowings other than on the last day of the   relevant interest period.  All   voluntary prepayments of the Term Loan Facility and any Incremental Term   Facility will be applied to the remaining amortization payments under the   Term Loan Facility or such Incremental Term Facility, as directed by the Borrower   (and absent such direction, in direct order of maturity thereof), including   to any class of extending or existing Loans in such order as the Borrower may   designate, and shall be applied to the Term Loan Facility or any Incremental   Term Facility as determined by the Borrower.

 

Any voluntary   prepayment or refinancing (other than a refinancing of the Term Loan Facility   in connection with any transaction that would, if consummated, constitute a   change of control or Transformative Acquisition (as defined below)) of the   Term Loan Facility with other term loans under credit facilities with a lower   Effective Yield (as defined below) than the Effective Yield of the Term Loan   Facility, or any amendment (other than an amendment of the Term Loan Facility   in connection with any transaction that would, if consummated, constitute a   change of control or Transformative Acquisition) that reduces the Effective   Yield of the Term Loan Facility, in either case that occurs prior to the six   month anniversary of the Closing Date (the “Soft   Call Date”) and the primary purpose (as determined by the   Borrower in good faith) of which is to lower the Effective Yield on the Term   Loan Facility, shall be subject to a prepayment premium of 1.00% of the   principal amount of the Term Loans so prepaid, refinanced or
    


 

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amended. For such   purposes (i) “Transformative   Acquisition” shall mean any acquisition by the Borrower or any   restricted subsidiary that is not permitted by the terms of the Facilities   Documentation immediately prior to the consummation of such acquisition and   (ii) “Effective Yield” shall   mean, as of any date of determination, the sum of (x) the higher of   (A) the LIBOR rate on such date for a deposit in dollars with a maturity   of one month and (B) the LIBOR floor, if any, with respect thereto as of   such date, (y) the interest rate margins as of such date (with such   interest rate margin and interest spreads to be determined by reference to the   LIBOR rate) and (z) the amount of OID and upfront fees thereon paid   generally to lenders (converted to yield assuming a four-year average life   and without any present value discount).
    
	
 
    	
 
    	
 
    
	
Documentation:
    	
 
    	
The Facilities will be   documented under a single credit agreement (the “Facilities   Documentation”) reflecting the terms set forth in this   Exhibit B and will otherwise be negotiated in good faith within a   reasonable time period to be determined based on the expected Closing Date   and will be substantially similar to the Parent Existing Credit Agreement, as   modified (a) to reflect (i) the operational and strategic   requirements of the Borrower and its subsidiaries giving effect to the   Acquisition (including in light of its size, industries, businesses and business   practices, locations, operations and financial accounting, and the   Projections set forth in the Acquisition Model (as defined below) and   (ii) reasonable modifications to the mechanical, operational,   administrative and agency provisions to reflect the administrative guidelines   and practices of the Administrative Agent, and (b) to give due regard to   applicable legal and regulatory developments including modifications to   include customary EU bail-in provisions.    Notwithstanding the foregoing, the only conditions to the availability   of the Facilities on the Closing Date shall be the applicable conditions set   forth in the “Conditions Precedent to Initial Borrowing” section below and in   Exhibit C to the Commitment Letter.    The Facilities Documentation shall contain only those representations,   events of default and covenants as set forth in this Exhibit B. 
    
	
 
    	
 
    	
 
    
	
Limited Condition   Transaction:
    	
 
    	
For purposes of   (i) determining compliance with any provision of the Facilities   Documentation which requires the calculation of the First Lien Leverage   Ratio, Senior Secured Leverage Ratio, the Total Leverage Ratio or the Fixed   Charge Coverage Ratio (to be defined in a manner to be mutually agreed),   (ii) determining compliance with representations, warranties, defaults   or events of default or (iii) testing availability under baskets set   forth in the Facilities Documentation (including baskets measured as a   percentage of EBITDA), in each case, in connection with an acquisition or an   investment by one or more of the Borrower and its restricted subsidiaries   otherwise permitted by the Facilities Documentation whose consummation is not   conditioned on the availability of, or on obtaining, third party financing   (any such acquisition or investment, a “Limited Condition   Transaction”), at the option of the Borrower (the Borrower’s   election to exercise such option in connection with any Limited Condition   Transaction, an “LCT Election”), the date of   determination of whether any such action is permitted hereunder, shall be   deemed to be the date the definitive agreements for such Limited Condition   Transaction are entered into (the “LCT Test Date”),   and if, after giving pro forma effect to the Limited Condition Transaction   and the other transactions to be entered into in connection therewith as if   they had occurred at the beginning of the most recent test period ending   prior to the LCT Test Date, the Borrower could have taken such action on the   relevant LCT Test Date in
    


 

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compliance with such   ratio or basket, such ratio or basket shall be deemed to have been complied   with.

 

For the avoidance of   doubt, if the Borrower has made an LCT Election and any of the ratios or   baskets for which compliance was determined or tested as of the LCT Test Date   are exceeded as a result of fluctuations in any such ratio or basket   (including due to fluctuations of the target of any Limited Condition   Transaction) at or prior to the consummation of the relevant transaction or   action, such baskets or ratios will not be deemed to have been exceeded as a   result of such fluctuations.  If the   Borrower has made an LCT Election for any Limited Condition Transaction, then   in connection with any subsequent calculation of any ratio or basket on or   following the relevant LCT Test Date and prior to the earlier of (i) the   date on which such Limited Condition Transaction is consummated or   (ii) the date that the definitive agreement for such Limited Condition   Transaction is terminated or expires without consummation of such Limited   Condition Transaction, any such calculation shall be made on a pro forma   basis assuming such Limited Condition Transaction and other transactions in   connection therewith (including any incurrence of debt and the use of   proceeds thereof) had been consummated.
    
	
 
    	
 
    	
 
    
	
Conditions Precedent to   Initial Borrowing:
    	
 
    	
The availability of the   initial borrowing and other extensions of credit under the Facilities on the   Closing Date will be subject solely to (x) the applicable conditions set   forth in Exhibit C to the Commitment Letter, (y) subject to the   Funding Conditions Provisions, the Company Representations and the Specified   Representations being true and correct in all material respects (provided that any such Specified Representations which are   qualified by materiality, material adverse effect or similar language shall   be true and correct in all respects and provided further   that the condition in this clause (y) relating to the Company   Representations shall be deemed satisfied unless a breach of any such Company   Representations has resulted in Parent or any of Parent’s affiliates having   the right to terminate its obligations under the Acquisition Agreement (or   otherwise decline to consummate the Acquisition without any liability, in   accordance with the terms of the Acquisition Agreement)) and (z) the   delivery of a customary borrowing notice (provided that   such notice shall not include any representation or statement as to the   absence (or existence) of any default or event of default or a bring-down of   representations and warranties (other than the Specified Representations and   Company Representations)).
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
All of the   representations and warranties will be required to be made in connection with   the extension of credit on the Closing Date, except that the failure of any   representation or warranty (other than the Specified Representations and the   Company Representations) to be true and correct on the Closing Date will not   constitute the failure of a condition precedent to funding.
    
	
 
    	
 
    	
 
    
	
Conditions Precedent to   All Subsequent Borrowings:
    	
 
    	
After the Closing Date,   each extension of credit will be conditioned upon: delivery of a borrowing   notice, accuracy of representations and warranties in all material respects   (provided that any such representations and warranties which are qualified by   materiality, material adverse effect or similar language shall be true and   correct in all respects) and absence of defaults or events of default.
    
	
 
    	
 
    	
 
    
	
Representations and 
    	
 
    	
Limited to the   following (to be applicable to the Borrower and its restricted
    


 

B-12











 

	
Warranties:
    	
 
    	
subsidiaries):   organizational status; power and authority, qualification, execution, delivery   and enforceability of the Facilities Documentation; with respect to the   execution, delivery and performance of the Facilities Documentation, no   violation of, or conflict with, law, charter documents or material   agreements; litigation; margin regulations; material governmental approvals   with respect to the execution, delivery and performance of the Facilities;   Investment Company Act; PATRIOT Act; accuracy of disclosure and financial   statements; since the Closing Date, no Material Adverse Effect (to be defined   in a manner to be mutually agreed); taxes; compliance with laws; ERISA;   anti-corruption laws, anti-money laundering laws and sanctions; EEA financial   institution; subsidiaries; intellectual property; creation, validity and   perfection of security interests; environmental laws; properties;   consolidated closing date solvency; subject, in the case of each of the   foregoing representations and warranties, to qualifications and limitations   for materiality to be mutually agreed.
    
	
 
    	
 
    	
 
    
	
Affirmative Covenants:
    	
 
    	
Limited to the   following (to be applicable to the Borrower and its restricted subsidiaries):

 

·                  delivery of annual audited and   quarterly financial statements, with quarterly MD&A (to the extent   included in the Borrower’s 10-Q filings);

 

·                  delivery of an annual budget   (commencing with the 2018 fiscal year);

 

·                  annual lender calls;

 

·                  delivery of notices of defaults and   certain material events;

 

·                  inspections (including books and   records and subject to frequency (so long as there is no ongoing event of   default) and cost reimbursement limitations);

 

·                  officers’ compliance certificates   and other information reasonably requested by the Administrative Agents;

 

·                  maintenance of organizational   existence and rights and privileges;

 

·                  maintenance of insurance;

 

·                  commercially reasonable efforts to   maintain ratings (but not to maintain a specific rating);

 

·                  payment of taxes and other   obligations;

 

·                  corporate franchises;

 

·                  compliance with laws (including   environmental laws) and material contractual obligations;

 

·                  PATRIOT Act; anti-corruption laws,   anti-money laundering laws and sanctions;

 

·                  ERISA;

 

·                  good repair;

 

·                  transactions with affiliates;

 

·                  changes in fiscal year;

 

·                  additional guarantors and   collateral;

 

·                  use of proceeds;
    


 

B-13











 

	
 
    	
 
    	
·                  changes in lines of business; and

 

·                  further assurances on collateral   matters;

 

subject, in the case of   each of the foregoing covenants, to exceptions and qualifications to be   mutually agreed.
    
	
 
    	
 
    	
 
    
	
Negative Covenants:
    	
 
    	
Limited to (to be   applicable to the Borrower and its restricted subsidiaries):

 

·                  limitations on the incurrence of   debt, with exceptions to allow, inter alia:

 

·                  first lien   secured debt subject to First Lien Leverage Ratio not in excess of the First   Lien Leverage Ratio on the Closing Date (subject to a sublimit to be agreed   for such debt of non-Subsidiary Guarantors) (provided that any first lien   term loans in the form of a term loan B or similar form of institutional term   loan shall be subject to the MFN Protection);

 

·                  junior lien   and unsecured subject to compliance with a pro forma Total Leverage Ratio of   4.50x (subject to a sublimit to be agreed for such debt of non-Subsidiary   Guarantors);

 

·                  general debt basket   equal to the greater of $100 million and a percentage to be agreed of   consolidated total assets (based on corresponding percentage on the Closing   Date);

 

·                  liens, with exceptions to allow,   inter alia:

 

·                  liens on   Collateral, (i) subject to compliance with a pro forma Secured Leverage   Ratio of 4.50x, (ii) subject to a customary intercreditor that will be   attached to the Facilities Documentation as an exhibit, and   (iii) ranking junior to the liens on such Collateral in relation to the   lien securing the Loans and the Guarantees as applicable;

 

·                  liens on   assets of non-Guarantors securing debt of such non-Guarantors;

 

·                  general lien   basket in an amount equal to the   greater of $85 million and a percentage to be agreed of consolidated   total assets (based on corresponding percentage on the Closing Date), which, in the case of Liens on Collateral,   shall be junior liens and shall be subject to a customary intercreditor   agreement;

 

·                  fundamental changes;

 

·                  restrictions on subsidiary   distributions and other restrictive agreements;

 

·                  asset sales (which shall be   permitted subject to (i) a 75% aggregate cash consideration requirement   for dispositions in excess of an amount to be agreed (with the ability to   designate certain non-cash assets as cash), (ii) a fair market value   requirement, (iii) a requirement that the proceeds of asset sales be   applied in accordance with “Mandatory Prepayments”) and (iv) no event of   default; and

 

·                  investments, with exceptions to   allow, inter alia:

 

·                  Permitted   Acquisitions;

 

·                  investments   equal to the greater of $100 million and a percentage to be agreed of   consolidated total assets (based on corresponding 
    


 

B-14











 

	
 
    	
 
    	
percentage on the   Closing Date);

 

·                  unlimited   investments subject to compliance with a pro forma Total Leverage Ratio of   2.75x;

 

·                  repurchases and redemptions of (and   amendments to documents governing) debt subordinated by its terms, with   exceptions to allow, inter alia:

 

·                  unlimited   prepayments subject to compliance with a pro forma Total Leverage Ratio of   2.75x;

 

·                  restricted payments, with   exceptions to allow, inter alia:

 

·                  restricted   payments up to $70 million a pursuant to the Parent’s previously announced   share buyback program in effect as of the Acquisition signing date;

 

·                  unlimited   restricted payments subject to compliance with a pro forma Total Leverage   Ratio of 2.50x;

 

·                  restricted   payments for repurchasing or retiring equity held by employees, managers or   directors, up to per year the greater of $10 million and a percentage to be   agreed of consolidated total assets (based on corresponding percentage on the   Closing Date), with unused amounts permitted to be carried forward to future   years;

 

·                  restricted   payments equal to the greater of $100 million and a percentage to be agreed   of consolidated total assets (based on corresponding percentage on the   Closing Date);

 

subject, in the case of   each of the foregoing covenants, to exceptions, qualifications and, as   appropriate, baskets (including those grown based off of the consolidated   total assets of the Borrower and its restricted subsidiaries) to be mutually   agreed.
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
The Borrower or any   restricted subsidiary will be permitted:

 

(a)  to incur   indebtedness to finance an acquisition so long as (x) in the case of   junior lien and unsecured debt, (i) the Fixed Charge Coverage Ratio   (calculated on a pro forma basis) shall either be (A) greater than or   equal to the Fixed Charge Coverage Ratio immediately prior to such   transactions or (B) at least 2.0:1.0, in either case, recomputed as of   the last day of the most recently ended fiscal quarter of the Company for   which financial statements are available or (ii) the Total Leverage   Ratio (calculated on a pro forma basis) shall either be (A) less than or   equal to the Total Leverage Ratio immediately prior to such transactions or   (B) less than or equal to 4.50x or (y) in the case of indebtedness secured on an equal priority   basis with the Facilities, the First Lien Leverage Ratio of the Borrower   shall be no greater than the First Lien Leverage Ratio as of the Closing   Date, recomputed as of the last day of the most recently ended fiscal quarter   of the Borrower for which financial statements have been delivered (provided   that any first lien term loans in the form of a term loan B or similar form   of institutional term loan shall be subject to the MFN Protection); provided that, in each case, there will be a sublimit to   be agreed for non-Subsidiary Guarantors;

 

(b) to incur   indebtedness, consummate fundamental changes, make distributions,
    


 

B-15











 

	
 
    	
 
    	
sell assets and make   investments and restricted payments, in each case, among the Borrower, the   Guarantors and their restricted subsidiaries (subject to an aggregate cap on   investments in restricted subsidiaries that are not Subsidiary Guarantors);   and

 

(c) consummate the   Transactions.

 

In addition, the   investments, repurchases and redemptions of subordinated debt and restricted   payments covenants shall include an “Available Amount Basket”,   which shall mean a cumulative amount equal to (a) $100 million (the “Starter Amount”) plus   (b) 100% of trailing 12-month EBITDA (less 1.40x interest expense) (the   “Grower Amount”), plus, in each of   the following clauses (c) through (h), without duplication, (c) the   cash proceeds of new equity issuances (other than disqualified stock) of the   Borrower or capital contributions to the Borrower made in cash, cash   equivalents or other property (other than disqualified stock), plus   (d) the net cash proceeds received by the Borrower from debt and   disqualified stock issuances that have been issued after the Closing Date and   which have been exchanged or converted into qualified equity, plus   (e) the net cash proceeds received by the Borrower and its restricted   subsidiaries from sales of investments made using the Available Amount   Basket, plus (f) returns, profits, distributions and similar amounts received   by the Borrower and its restricted subsidiaries on investments made using the   Available Amount Basket, plus (g) the investments of the Borrower and   its restricted subsidiaries in any unrestricted subsidiary that has been   re-designated as a restricted subsidiary or that has been merged or   consolidated with or into the Borrower or any of its restricted subsidiaries   plus (h) Declined Amounts; provided that   use of the Grower Amount shall in each case be subject to the Total Leverage   Ratio (calculated on a pro forma basis) being less than or equal to the Total   Leverage Ratio as of the Closing Date and the absence of any event of   default.
    
	
 
    	
 
    	
 
    
	
Financial Covenants:
    	
 
    	
With respect to the   Term Loan Facility: None.

 

With respect to the   Revolving Facility: Limited to the following financial maintenance covenant   (the “Financial Covenant”): a   maximum First Lien Leverage Ratio.

 

The Financial Covenant   will be tested quarterly commencing with the second full fiscal quarter to   occur after the Closing Date; provided that   the Financial Covenant (x) shall be tested only if Revolving Loans   (including the aggregate principal amount of letters of credit then   outstanding under the Revolving Facility to the extent not cash   collateralized, but excluding non-cash collateralized letters of credit in an   aggregate amount not to exceed the greater of (i) the amount of letters   of credit outstanding on the Closing Date and (ii) $5.0 million) are or   would be outstanding in an amount exceeding 35% of the total facility amount   of the Revolving Facility and (y) will be set at a First Lien Leverage   Ratio at a cushion of 35% to the Acquisition Model (subject to one step-down   to be agreed).
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
“EBITDA”   shall be defined in a manner to be mutually agreed and in any event shall   include, without limitation, add backs, deductions and adjustments, as   applicable, without duplication, for (a) non-cash items,   (b) extraordinary, unusual or non-recurring items,   (c) restructuring charges and related charges, (d) pro
    


 

B-16











 

	
 
    	
 
    	
forma adjustments, pro   forma cost savings, operating expense reductions and cost synergies, in each   case, related to mergers and other business combinations, acquisitions,   divestitures and other transactions (including in respect of the pro forma   adjustments and addbacks set forth in clause (c) above) consummated by   the Borrower and projected by the Borrower in good faith to result from   actions taken or expected to be taken (in the good faith determination of the   Borrower) within eight fiscal quarters after the date any such transaction is   consummated, so long as such cash savings and synergies are reasonably   identifiable and factually supportable, (e) “run rate” cost savings,   operating expense reductions and synergies projected by the Borrower in good   faith to result from actions either taken or expected to be taken within 24   months after the date of determination to take such action, so long as such   cash savings and synergies are reasonably identifiable and factually   supportable and (f) adjustments and add backs reflected in the financial   model dated as of November 30, 2016 (the “Acquisition   Model”).
    
	
 
    	
 
    	
 
    
	
Events of Default:
    	
 
    	
Limited to the   following (to be applicable to the Borrower and its restricted   subsidiaries):  nonpayment of   principal, interest or other amounts; violation of covenants; incorrectness   of representations and warranties in any material respect; cross default and   cross acceleration to material indebtedness; bankruptcy and insolvency of the   Borrower or any of its significant restricted subsidiaries; material monetary   judgments; ERISA events; actual or asserted invalidity of material   guarantees, liens or security documents; and change of control (with no   continuing director prong), subject to thresholds (with respect to the   monetary judgments and cross default and cross acceleration events of default   only), notice and grace period provisions to be mutually agreed.

 

Notwithstanding the   foregoing, (x) only Revolving Lenders holding at least a majority of the   Revolving Commitments and Revolving Loans shall have the ability to (and be   required in order to) amend the Financial Covenant and waive a breach of the   Financial Covenant, and (y) a breach of the Financial Covenant shall not   constitute an Event of Default with respect to the Term Loan Facility until   the date on which the Revolving Loans (if any) have been accelerated or the   Revolving Commitments have been terminated, in each case, by the Revolving   Lenders in accordance with the terms of the Revolving Facility.
    
	
 
    	
 
    	
 
    
	
Voting:
    	
 
    	
Amendments and waivers   of the Facilities Documentation will require the approval of Lenders (other   than Defaulting Lenders (to be defined in a customary manner)) holding more   than 50% of the aggregate amount of the Loans, letter of credit exposure and   Revolving Commitments under the Facilities (the “Required   Lenders”), except that (i) the consent of each Lender   directly and adversely affected thereby shall be required with respect to:   (A) increases in the commitment of such Lender, (B) reductions of   principal, interest or fees owing to such Lender, (C) extensions or   postponement of final maturity or the scheduled date of payment of any   principal, interest or fees and (D) releases of all or substantially all   the value of the Guarantees or releases of liens on all or substantially all   of the Collateral, (ii) the consent of 100% of the Lenders will be   required with respect to modifications to any of the voting percentages that   result in a decrease of voting rights for such Lenders, (iii) customary   protections for the Administrative Agents, the Swingline Lender and the   Issuing Lenders will be provided and (iv) amendments or waivers   affecting only a particular class of Lenders will require only the approval   of the Lenders (other than Defaulting 
    


 

B-17











 

	
 
    	
 
    	
Lenders) of such class   holding more than 50% of the aggregate amount of the applicable class of   Loans (and not, for avoidance of doubt, approval of the overall Required   Lenders).

 

Notwithstanding the   foregoing, amendments and waivers of the Financial Covenant will be subject   to the second paragraph under “Events of Default” above.
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
The Facilities shall   contain provisions permitting the Borrower to replace (i) non-consenting   Lenders in connection with amendments and waivers requiring the consent of   all such class of Lenders or of all such class of Lenders directly affected   thereby so long as the Required Lenders shall have consented thereto and (ii) Defaulting   Lenders.  The Facilities shall also   contain usual and customary provisions regarding Defaulting Lenders.
    
	
 
    	
 
    	
 
    
	
Cost and Yield   Protection:
    	
 
    	
Usual for facilities   and transactions of this type, and substantially consistent with the Parent Existing   Credit Agreement including, without limitation, customary provisions relating   to Dodd-Frank and Basel III.  The   Facilities shall contain provisions regarding the timing for asserting a   claim under these provisions and permitting the Borrower to replace a Lender   who asserts such claim without premium or penalty.
    
	
 
    	
 
    	
 
    
	
Assignments and   Participations:
    	
 
    	
The Lenders will be   permitted to assign (a) Term Loans with the consent of the Borrower (not   to be unreasonably withheld or delayed) and (b) Revolving Commitments   with the consent of the Borrower (not to be unreasonably withheld or   delayed), the Swingline Lender and each Issuing Lender; provided   that no consent of the Borrower shall be required (i) after the   occurrence and during the continuance of a payment or bankruptcy Event of   Default (with respect to the Borrower) or (ii) for assignments of Term   Loans to any existing Lender or an affiliate of an existing Lender or an   approved fund.  All assignments of   Loans will require the consent of the Administrative Agent unless such   assignment is an assignment of Term Loans to another Lender, an affiliate of   a Lender or an approved fund, not to be unreasonably withheld or   delayed.  Assignments to natural   persons shall be prohibited.  Each   assignment will be in an amount of an integral multiple of $1.0 million with   respect to the Term Loan Facility and $5.0 million with respect to the   Revolving Facility or, in each case, if less, all of such Lender’s remaining   loans and commitments of the applicable class.  Assignments will not be required to be pro   rata among the Facilities.  For any   assignments of Term Loans for which the Borrower’s consent is required, such   consent shall be deemed to have been given if the Borrower has not responded   within 10 business days of a request for such consent.
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
The Lenders will be   permitted to sell participations in the Facilities without restriction, other   than as set forth in the next sentence, and in accordance with applicable   law.  Voting rights of participants   shall be limited to matters in respect of (a) increases in commitments   participated to such participants, (b) reductions of principal, interest   or fees, (c) extensions of final maturity or the scheduled date of   payment of any principal, interest or fees and (d) releases of all or   substantially all of the value of the Guarantees or all or substantially all   of the Collateral.
    


 

B-18












 

	
 
    	
 
    	
The Facilities   Documentation shall provide that (a) Term Loans may be purchased and   assigned on a non-pro rata basis through (i) open market purchases and   (ii) Dutch auction or similar procedures to be agreed that are offered   to all Lenders on a pro rata basis in accordance with customary procedures to   be agreed and, in each case, subject to customary restrictions to be agreed   and (b) the Borrower and any other affiliates of the Borrower shall be   eligible assignees with respect to Term Loans only; provided   that (x) any such Term Loans acquired by the Borrower or any of its   respective subsidiaries shall be retired and cancelled promptly upon   acquisition thereof, (y) no default shall be continuing at the time of   any such purchase or assignment and (z) Term Loans may not be purchased   with proceeds of Revolving Loans.
    
	
 
    	
 
    	
 
    
	
Expenses and   Indemnification:
    	
 
    	
The Borrower shall pay,   if the Closing Date occurs, all reasonable and documented out-of-pocket   expenses of the Administrative Agents and the Commitment Parties (without   duplication) in connection with the syndication of the Term Loan Facility and   the preparation, execution, delivery, administration, amendment, waiver or   modification and enforcement of the Facilities Documentation (including the   reasonable fees and expenses of counsel identified herein and of a single   firm of local counsel in each appropriate jurisdiction (other than any   allocated costs of in-house counsel) or otherwise retained with the   Borrower’s consent (such consent not to be unreasonably withheld or   delayed)).
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
The Borrower will   indemnify and hold harmless the Lead Arrangers, the Administrative Agent, the   Commitment Parties and the Lenders (without duplication) and their respective   affiliates, and the officers, directors, employees, agents, advisors,   controlling persons, members and the successors and assigns of each of the   foregoing (each, an “Indemnified Person”)   from and against any and all losses, claims, damages and liabilities of any   kind or nature, joint or several, to which any such Indemnified Person may   become subject, to the extent arising out of or in connection with any claim,   litigation, investigation or proceeding, actual or threatened, relating to   the Facilities or the Facilities Documentation (any of the foregoing, a “proceeding”) (regardless of   whether any such Indemnified Person is a party thereto and whether any such   proceeding is brought by the Borrower or any other person) and reasonable and   documented out-of-pocket fees and expenses incurred in connection with investigating   or defending any of the foregoing by one firm of counsel for all Indemnified   Persons, taken as a whole, and, if necessary, by a single firm of local   counsel in each appropriate jurisdiction for all such Indemnified Persons,   taken as a whole (and, in the case of an actual or perceived conflict of   interest where the Indemnified Person affected by such conflict notifies you   of the existence of such conflict and thereafter, after receipt of your   consent (which consent shall not be unreasonably withheld or delayed),   retains its own counsel, by another firm of counsel for such affected   Indemnified Person) of any such Indemnified Person arising out of or relating   to any claim, litigation, investigation or other proceeding (including any   inquiry or investigation of the foregoing) (regardless of whether such   Indemnified Person  is a party thereto   or whether or not such action, claim, litigation or proceeding was brought by   the Borrower, its equity holders, affiliates or creditors or any other third   person) that relates to the Transactions, including the financing   contemplated hereby; provided that   no Indemnified Person will be indemnified for any losses, claims, damages,   liabilities or related expenses to the extent that they have resulted from   (i) the willful misconduct, bad faith or gross negligence of such 
    


 

B-19











 

	
 
    	
 
    	
Indemnified Person or   any of such Indemnified Person’s affiliates or any of its or their respective   officers, directors, employees, agents, controlling persons, members or the   successors of any of the foregoing (as determined by a court of competent   jurisdiction in a final and non-appealable decision), (ii) a material   breach of the obligations of such Indemnified Person  or any of such Indemnified Person ‘s   affiliates or any of the officers, directors, employees, advisors, agents or   other representatives of any of the foregoing (as determined by a court of   competent jurisdiction in a final and non-appealable decision) or (iii) any   claim, litigation, investigation or other proceeding not arising from any act   or omission by the Borrower or its affiliates that is brought by an   Indemnified Person against any other Indemnified Person (other than disputes   involving claims against any Lead Arranger, Administrative Agent or Issuing   Lender in their capacity as such).
    
	
 
    	
 
    	
 
    
	
Governing Law and Forum:
    	
 
    	
New York.
    
	
 
    	
 
    	
 
    
	
Counsel to the Agents:
    	
 
    	
Cahill   Gordon & Reindel LLP.
    


 

B-20











 

ANNEX I to

EXHIBIT B

 

	
Interest Rates:
    	
 
    	
The interest rates   under the Facilities will be as follows:

 

Revolving Facility

 

At the option of the   Borrower, initially, LIBOR plus 2.50% or ABR plus 1.50%.

 

From and after the   delivery by the Borrower to the Administrative Agent of financial statements   for the period ending at least one full fiscal quarter following the Closing   Date, the applicable margins under the Revolving Facility shall be subject to   (i) a step-down to LIBOR plus 2.25% or ABR plus 1.25% based upon   achievement of a First Lien Leverage Ratio that is equal to 0.25x inside the   First Lien Leverage Ratio as of the Closing Date and (ii) a step-down to   LIBOR plus 2.00% or ABR plus 1.00% based upon achievement of a First Lien   Leverage Ratio that is equal to 0.75x inside the First Lien Leverage Ratio as   of the Closing Date.
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
Term   Loan Facility

 

At   the option of the Borrower, initially, LIBOR plus 3.25% or ABR plus 2.25%.

 

From and after the   delivery by the Borrower to the Administrative Agent of financial statements   for the period ending at least one full fiscal quarter following the Closing   Date, the applicable margins under the Term Loan Facility shall be subject to   a step-down to LIBOR plus 3.00% or ABR plus 2.00% based upon achievement of a   First Lien Leverage Ratio that is equal to 0.50x inside the First Lien   Leverage Ratio as of the Closing Date.
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
All Facilities
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
The Borrower may elect   interest periods of 1, 2, 3 or 6 months (or, if available to all relevant   Lenders, 12 months or a shorter period) for LIBOR borrowings.
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
Calculation of interest   shall be on the basis of the actual days elapsed in a year of 360 days (or   365 or 366 days, as the case may be, in the case of ABR loans based on the   Prime Rate) and interest shall be payable at the end of each interest period   and, in any event, at least every 3 months and on the applicable maturity   date.
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
ABR is the highest of   (i) the rate of interest publicly announced by the Administrative Agent   as its prime rate in effect at its principal office in New York City (the “Prime Rate”), (ii) the   federal funds effective rate from time to time plus 0.50% and   (iii) LIBOR applicable for an interest period of one month plus 1.00%; provided that, ABR shall be deemed to be no less than   1.75% per annum solely with respect to the Term Loan Facility.
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
LIBOR is the London   interbank offered rate for dollars (which in any event shall not be less than   0.00% per annum), for the relevant interest period; provided   that, solely with respect to the Term Loan Facility, LIBOR shall be deemed to   be no less than 0.75% per annum.
    
	
 
    	
 
    	
 
    
	
Letter of Credit Fees:
    	
 
    	
A per annum fee equal   to the spread over LIBOR under the Revolving Facility will accrue for the   account of Revolving Lenders (other than Defaulting Lenders) on the aggregate   face amount of outstanding Letters of Credit, payable in arrears at the end   of each quarter and upon the termination of the Revolving Facility, in each   case for the actual number of days elapsed over a 360-day year.  Such fees shall be distributed to such   Revolving
    


 

B-21











 

	
 
    	
 
    	
Lenders pro rata in   accordance with the amount of each such Revolving Lender’s Revolving   Commitment.  In addition, the Borrower   shall pay to the relevant Issuing Lender, for its own account, (a) a   fronting fee equal to 0.125% of the aggregate face amount of outstanding   Letters of Credit or such other amount as may be agreed by the Borrower and   such Issuing Lender, payable in arrears at the end of each quarter and upon   the termination of the Revolving Facility, calculated based upon the actual   number of days elapsed over a 360-day year, and (b) customary issuance   and administration fees.
    
	
 
    	
 
    	
 
    
	
Revolving Commitment   Fee:
    	
 
    	
Initially, 0.375% per   annum on the undrawn portion of the Revolving Commitments, payable to non-Defaulting   Lenders quarterly in arrears after the Closing Date and upon the termination   of the Revolving Commitments, calculated based on the number of days elapsed   in a 360-day year.

 

From and after the   delivery by the Borrower to the Administrative Agent of financial statements   for the period ending at least one full fiscal quarter following the Closing   Date, the commitment fees under the Revolving Facility shall be subject to a   step-down to 0.25% based upon achievement of a First Lien Leverage Ratio that   is equal to 0.50x inside the First Lien Leverage Ratio as of the Closing   Date.
    


 

B-I-2











 

	
CONFIDENTIAL
    	
EXHIBIT C
    


 

Project GL
 Summary of Additional Conditions

 

Except as otherwise set forth below, the availability and initial funding on the Closing Date of each of the Facilities shall be subject to the satisfaction or waiver of the following conditions:

 

1.                                      The Tender Offer and the Merger shall have been or, substantially concurrently with the initial borrowing under the Term Loan Facility shall be, consummated in all material respects in accordance with the terms of the Acquisition Agreement as in effect on the date hereof, without giving effect to any modifications, amendments or express waivers or consents by you (or Merger Sub) thereto that are materially adverse to the Initial Lenders and/or the Lead Arrangers in their capacities as such without the consent of the Lead Arrangers (not to be unreasonably withheld, conditioned or delayed) (it being understood and agreed that (a) any change to the definition of “Company Material Adverse Effect” (and any component definitions thereof) contained in the Acquisition Agreement shall be deemed to be materially adverse to the Initial Lenders and (b) any modification, amendment or express waiver or consents by you (or Merger Sub) that results in an increase or reduction in the purchase price shall be deemed to not be materially adverse to the Lenders so long as (i) any increase in the purchase price shall be funded solely with the proceeds of qualified equity or cash on hand of the Borrower and (ii) any reduction in the purchase price shall reduce the Term Loan Facility on a dollar-for-dollar basis).

 

2.                                      As of immediately prior to the Expiration Time (as defined in the Acquisition Agreement), since the date of the Acquisition Agreement, there shall not have occurred and be continuing a Company Material Adverse Effect (as defined in the Acquisition Agreement).

 

3.                                      Substantially simultaneously with the initial borrowing under the Term Loan Facility, the Refinancing shall be consummated.

 

4.                                      All fees required to be paid on the Closing Date pursuant to the Fee Letter and reasonable out-of-pocket expenses required to be paid on the Closing Date pursuant to the Commitment Letter, to the extent invoiced at least three business days prior to the Closing Date (except as otherwise reasonably agreed by the Borrower), shall, upon the initial borrowings under the Facilities, have been, or will be substantially simultaneously, paid (which amounts may, at your option, be offset against the proceeds of the Facilities).

 

5.                                      The Lead Arrangers shall have received:

 

(a) (x) audited consolidated balance sheets of the Parent and its consolidated subsidiaries as at the end of, and related statements of income and cash flows of the Parent and its consolidated subsidiaries for, the three most recently completed fiscal years ended at least 90 days prior to the Closing Date and (y) an unaudited consolidated balance sheet of the Parent and its consolidated subsidiaries as at the end of, and related statements of income and cash flows of the Parent and its consolidated subsidiaries for each subsequent fiscal quarter (other than the last fiscal quarter of the year) of the Parent and its consolidated subsidiaries subsequent to the last fiscal year for which financial statements were prepared pursuant to the preceding clause (a)(x) and ended at least 45 days before the Closing Date; and

 

(b)(x) audited consolidated balance sheets of the Company and its consolidated subsidiaries as at the end of, and related statements of operations and cash flows of the Company and its consolidated subsidiaries for, the three most recently completed fiscal years ended at least 90 days prior to the Closing Date, and (y) an unaudited consolidated balance sheet of the Company and its consolidated subsidiaries as at the end of, and related statements of operations and cash flows of the Company and its consolidated subsidiaries for each subsequent fiscal quarter (other than the last fiscal quarter of the year) of the Company and its

 

[Summary of Additional Conditions]

 











 

consolidated subsidiaries subsequent to the last fiscal year for which financial statements were prepared pursuant to the preceding clause (b)(x) and ended at least 45 days before the Closing Date.

 

The Lead Arrangers hereby acknowledge receipt of (I) the audited financial statements referred to in clause (a)(x) above for the 2013, 2014 and 2015 fiscal years and the unaudited financial statements referred to in clause (a)(y) above for the first, second and third fiscal quarters of the 2016 fiscal year and (II) the audited financial statements referred to in clause (b)(x) above for the 2013, 2014 and 2015 fiscal years and the unaudited financial statements referred to in clause (b)(y) above for the first, second and third fiscal quarters of the 2016 fiscal year.

 

6.                                      The Lead Arrangers shall have received a pro forma consolidated balance sheet and related pro forma statement of income of the Borrower as of and for the 12-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 45 days prior to the Closing Date (or 90 days prior to the Closing Date in case such four fiscal quarter period is the end of the Company’s fiscal year), prepared after giving effect to the Transactions as if the Transactions had occurred as of such dates (in the case of such balance sheet) or at the beginning of such period (in the case of such income statement), which need not be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting (including adjustments of the type contemplated by Financial Accounting Standards Board Accounting Standards Codification 805, Business Combinations (formerly SFAS 141R)).

 

7.                                      The Administrative Agent and the Lead Arrangers shall have received at least three business days prior to the Closing Date all documentation and other information about the Borrower and the Guarantors as shall have been reasonably requested in writing by the Administrative Agent or the Lead Arrangers at least ten business days prior to the Closing Date and as required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.

 

8.                                      The Lead Arrangers shall have been afforded a period (the “Marketing Period”) of at least 15 consecutive business days following receipt of the financial statements referred to in paragraphs 5 and 6 above to market the Facilities; provided that such 15 consecutive business day period shall commence no earlier than January 3, 2017.

 

9.                                      Subject in all respects to the Funding Conditions Provisions, (a) the Guarantees shall have been executed and be in full force and effect or substantially simultaneously with the initial borrowing under the Term Loan Facility, shall be executed and become in full force and effect and (b)  all documents and instruments required to create or perfect the Administrative Agent’s security interest in the Collateral shall have been executed and delivered by each Credit Party party thereto and, if applicable, be in proper form for filing.

 

10.                               Subject in all respects to the Funding Conditions Provisions, (a) the Facilities Documentation (which shall, in each case, be in accordance with the terms of the Commitment Letter and the Term Sheet) shall have been executed and delivered by the Credit Parties and (b) customary legal opinions, customary officer’s closing certificates, organizational documents, customary evidence of authorization and good standing certificates in jurisdictions of formation/organization, in each case with respect to the Borrower and the Guarantors (to the extent applicable) and a solvency certificate (as of the Closing Date after giving effect to the Transactions and substantially in the form of Annex C-I attached hereto, certified by a senior authorized financial officer of the Borrower) shall have been delivered to the Lead Arrangers.

 

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CONFIDENTIAL
    	
EXHIBIT C-I
    


 

Form of Solvency Certificate

 

Date:  [·]

 

Reference is made to Credit Agreement, dated as of [·] (the “Credit Agreement”), among [·] (the “Borrower”), the lending institutions from time to time parties thereto (the “Lenders”), and [·], as Administrative Agent and Collateral Agent.

 

Capitalized terms used but not otherwise defined herein shall have the meanings assigned to them in the Credit Agreement.  This certificate is furnished pursuant to Section [·] of the Credit Agreement.

 

Solely in my capacity as a financial executive officer of the Borrower and not individually (and without personal liability), I hereby certify, that as of the date hereof, after giving effect to the consummation of the Transactions:

 

1.              The sum of the liabilities (including contingent liabilities) of the Borrower and its Subsidiaries, on a consolidated basis, does not exceed the present fair saleable value of the present assets of the Borrower and its Subsidiaries, on a consolidated basis.

 

2.              The fair value of the property of the Borrower and its Subsidiaries, on a consolidated basis, is greater than the total amount of liabilities (including contingent liabilities) of the Borrower and its Subsidiaries, on a consolidated basis.

 

3.              The capital of the Borrower and its Subsidiaries, on a consolidated basis, is not unreasonably small in relation to their business as contemplated on the date hereof.

 

4.              The Borrower and its Subsidiaries, on a consolidated basis, have not incurred and do not intend to incur, or believe that they will incur, debts including current obligations beyond their ability to pay such debts as they become due (whether at maturity or otherwise).

 

For purposes of this Certificate, the amount of any contingent liability has been computed as the amount that, in light of all of the facts and circumstances existing as of the date hereof, represents the amount that would reasonably be expected to become an actual or matured liability.

 

IN WITNESS WHEREOF, I have executed this Certificate this as of the date first written above.

 

	
 
    	
[BORROWER]
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
Name:
    
	
 
    	
 
    	
Title:
    


 

[Solvency Certificate]