SQSP Squarespace Inc

BLACKSTONE
ALTERNATIVE CREDIT

ADVISORS LP

BLACKSTONE HOLDINGS

FINANCE CO. L.L.C.

345 Park Avenue

New York, New York 10154

BLUE OWL CREDIT

ADVISORS LLC

BLUE OWL CAPITAL

CORPORATION

399 Park Avenue, 37th Floor

New York, New York 10022

ARES CAPITAL

MANAGEMENT LLC

245 Park Avenue

New York, NY 10029

CPPIB CREDIT

INVESTMENTS III INC.

CPPIB CREDIT REVOLVER

CANADA INC.

One Queen Street East, Suite

2500

Toronto, Ontario, M5C 2W5,

Canada

PSP INVESTMENTS

CREDIT USA LLC
450 Lexington Avenue, Suite

3750

New York, NY 10017

DOGWOOD CREDIT, LP
18575 Jamboree Road, 7th Floor
Irvine, CA 92612

Term Facility

Commitment

Revolving Facility

Commitment

DDTL Facility

Commitment

Facilities:

(A)        A first lien senior secured term loan facility (the “Term Facility”; the loans thereunder, together with first lien term loans issued under any Incremental Term Facilities or Refinancing Term Facilities, the “Term Loans”) in an aggregate principal amount of $2,100.0 million. The Term Facility shall be available to be drawn on the Closing Date in U.S. dollars. Each Lender under Term Facility is a “Term Lender”.

(B)        A first lien senior secured revolving credit facility (the “Revolving Facility”; the loans thereunder, together with loans issued under any Incremental Revolving Facilities or Refinancing Revolving Facilities, the “Revolving Loans” and each Lender under the Revolving Facility, a “Revolving Lender”) in an aggregate principal amount of $250.0 million. The Revolving Facility shall be available to be drawn from time to time on or after the Closing Date in U.S. dollars and other currencies as agreed to by all the Revolving Lenders, with sublimits to be mutually agreed on any currency other than U.S. dollars; provided, that the availability of the Revolving Facility on the Closing Date shall be subject to the limitation set forth below under the heading “Availability.”

(C)         A first lien senior secured delayed draw term loan facility (the “DDTL Facility” and together with the Term Facility and the Revolving Facility, the “Facilities”) in an aggregate principal amount of $300.0 million. The loans under the DDTL Facility are referred to as the “Delayed Draw Term Loans” and together with the other Term Loans and the Revolving Loans, are referred to as the “Loans”. For the avoidance of doubt, the Delayed Draw Term Loans shall constitute “Term Loans” under the Facilities Documentation.

Notwithstanding anything to the contrary herein, at any time on or prior to the Closing Date, the Borrower shall have the option to replace 100% of the Revolving Facility with a super-priority revolving facility in an amount not to exceed $250.0 million (the “Super-Priority Revolving Facility”). The terms and conditions applicable to the Super-Priority Revolving Facility shall be the same (other than with respect to payment priority) as the Revolving Facility or shall be reasonably acceptable to the Commitment Parties.

The Lenders under the Revolving Facility shall be irrevocably obligated to fund their pro rata participations in any drawn Letter of Credit which is not timely reimbursed to the applicable Issuing Lender.

Letters of Credit will be available in U.S. dollars and any other currency that is approved by each Issuing Lender and Revolving Lender.

The Facilities Documentation will permit the Loan Parties, from time to time, on one or more occasions, to (A) add one or more incremental term loan facilities and/or increase the Term Facility or any then existing Incremental Term Facility or Refinancing Term Facility under the Facilities Documentation (each, an “Incremental Term Facility”) and (B) add one or more revolving credit facilities and/or increase commitments under the Revolving Facility or any then existing Incremental Revolving Facility or Refinancing Revolving Facility (any such revolving credit facility or increase, an “Incremental Revolving Facility”; the Incremental Term Facilities and the Incremental Revolving Facilities, the “Incremental Facilities”), so long as the Incremental Facilities do not exceed in the aggregate:

(a)       an unlimited amount (this clause (a), the “Incremental Ratio Test”) so long as after giving pro forma effect to the relevant Incremental Facility (and the intended uses thereof and, in the case of any Incremental Revolving Facility then being established, assuming such Incremental Revolving Facility (or any Incremental Term Facility in the form of a delayed draw facility) is fully drawn), (i) if such Incremental Facility is secured by a lien on the assets of the Loan Parties that is pari passu with the lien securing the initial Facilities, the Total Net First Lien Leverage Ratio (as defined below) as of the last day of the most recently ended Test Period (as defined below) does not exceed 7.50:1.00 (the “Maximum Total Net First Lien Leverage Ratio”), (ii) if such Incremental Facility is secured by a lien on the assets of the Loan Parties that is junior to the lien securing the initial Facilities, the Total Net Secured Leverage Ratio (as defined below) as of the last day of the most recently ended Test Period does not exceed 7.50:1.00 (the “Maximum Total Net Secured Leverage Ratio”) and (iii) if such Incremental Facility is unsecured, the Total Net Leverage Ratio (as defined below) as of the last day of the most recently ended Test Period does not exceed 8.00:1.00 (the “Maximum Total Net Leverage Ratio”); plus

(b)       in the case of an Incremental Facility that serves to effectively extend the maturity or effect the repricing of any class under the Term Facility, the Revolving Facility, any Incremental Facilities, any Refinancing Facilities, any other facilities under the Facilities Documentation, any Incremental Equivalent Indebtedness (as defined below), any Ratio Debt (as defined below) or any Incurred Acquisition Debt (as defined below) (collectively, “Specified Indebtedness”), an amount equal to the portion of the relevant Indebtedness that will be replaced by such Incremental Facility plus any related fees, costs and expenses, including original issue discount and upfront fees and prepayment penalties and premium (collectively, the “Incremental Extension Amount”); provided, that if such Indebtedness is secured by a lien on the Collateral that is junior to the lien securing the initial Facilities or is unsecured (or secured by a lien on assets not constituting Collateral), such Incremental Facility shall be secured by a lien on the Collateral that is junior to the lien securing the initial Facilities or unsecured (or secured by a lien on assets not constituting Collateral), as applicable; plus

(c)       an amount equal to the aggregate principal amount of all voluntary prepayments and debt buybacks (which shall include, for the avoidance of doubt, any voluntary redemption, open market purchase and consummated offer to purchase including pursuant to any “yank-a-bank” provision) of any class of Specified Indebtedness secured by a lien on the assets of the Loan Parties that is pari passu with the lien securing the initial Facilities, in each case made prior to the date of any such incurrence, with credit given to the cash payment made in respect of such buybacks, and voluntary commitment reductions of any revolving credit facilities made prior to the date of any such incurrence, in each case except to the extent financed with proceeds of long-term indebtedness (other than a revolving facility) (collectively, the “Incremental Prepayment Amount”); plus

(d)       the greater of 100% of Closing Date EBITDA (as defined below) and 100% of Consolidated EBITDA (as defined in Annex III hereto) for the last four fiscal quarters for which financial statements have been delivered or required to have been delivered (“LTM EBITDA”) (such amount, the “Incremental Fixed Amount”, and together with the Incremental Ratio Test, the Incremental Extension Amount and the Incremental Prepayment Amount, collectively, the “Incremental Facilities Cap”);

provided, that:

(i)          subject to the provisions in respect of Limited Condition Transactions, no event of default under the Facilities Documentation has occurred and is continuing or would exist after giving effect thereto; provided, that the absence of any payment or bankruptcy event of default shall also be required on the date of consummation of any such Limited Condition Transaction;

(ii)        subject to the provisions in respect of Limited Condition Transactions, the representations and warranties shall be true and correct in all material respects immediately prior to, and after giving effect thereto (provided that any such representation or warranty that is qualified as to “materiality” or “material adverse effect” shall be true and correct in all respects), as may be waived or modified in scope by the lenders providing the Incremental Facilities;

(iii)         no Lender will be required to participate in any Incremental Facility;

(iv)         the Incremental Facilities will not be borrowed or guaranteed by any person that is not the Borrower or a Guarantor or secured by any asset that is not Collateral (except (1) customary cash collateral in favor of an agent, letter of credit issuer or similar “fronting” lender, (2) Liens on property or assets applicable only to periods after the later of (x) the latest maturity date of the Facilities and (y) the satisfaction in full of all outstanding obligations under the Facilities, and (3) any Liens on property or assets to the extent that a Lien on such property or asset is also added for the benefit of the Lenders under the Term Facility for so long as such Liens secure such Incremental Facility (collectively, the “Collateral Exclusions”));

(v)          subject to the Permitted Earlier Maturity Indebtedness Exception (as defined below), any Incremental Term Facility will have a final maturity no earlier than the final maturity of the Term Facility and any Incremental Revolving Facility will have a final maturity no earlier than the final maturity of the Revolving Facility; 

(vi)        subject to the Permitted Earlier Maturity Indebtedness Exception, the weighted average life to maturity of any Incremental Term Facility shall not be shorter than the weighted average life of the Term Facility;

(vii)       subject to clauses (v) and (vi) above, the amortization schedule (if any) applicable to any Incremental Term Facility shall be determined by Holdings and the lenders thereunder and no Incremental Revolving Facility shall have amortization or scheduled mandatory commitment reductions (other than at maturity);

(viii)      the interest rate margins applicable to any Incremental Facility will be determined by Holdings and the lenders providing such Incremental Facility; provided, that with respect to any Incremental Term Facility secured by a lien on the Collateral that is pari passu with the lien securing the initial Facilities, the all-in-yield in respect of any such Incremental Term Facility (which all-in-yield, for such purposes only, (x) shall be deemed to include all upfront fees and original issue discount (based on a four-year average life to maturity or, if less, the remaining life to maturity) payable by the Borrower to all Lenders providing such Incremental Term Facility and (y) shall exclude structuring, underwriting, commitment, ticking, amendment, consent, arrangement or similar fees payable generally to all lenders in connection therewith) will not be more than 0.50% higher than the corresponding all-in-yield of the initial Term Facility unless the interest rate margins with respect to the initial Term Facility are increased by an amount equal to the difference between all-in-yield with respect to the applicable Incremental Term Facility and the corresponding all-in-yield on the initial Term Facility, minus 0.50%; provided, further, that if the applicable Incremental Term Facility includes an interest rate floor greater than the interest rate floor under the initial Term Facility, such differential between the interest rate floors shall be equated to the applicable all-in-yield for purposes of determining whether an increase to the all-in-yield under the initial Term Facility shall be required, but only to the extent an increase in the interest rate floor in the initial Term Facility would cause an increase in the interest rate then in effect thereunder solely at the time such Incremental Term Facility is being implemented, and in such case, the interest rate floor or the interest rate margin, as elected by the Borrower in its sole discretion, applicable to the initial Term Facility shall be increased to the extent of such differential between interest rate floors (this clause (viii), the “MFN Provision”); provided, that the MFN Provision shall not be applicable to any Incremental Term Facility that (1) consists of syndicated Rule 144A-style notes or (2) is incurred pursuant to clause (ii) of the Permitted Earlier Maturity Indebtedness Exception; 

(ix)         Incremental Facilities may be incurred in U.S. dollars or any other currency reasonably acceptable to the Administrative Agent (acting at the direction of the Required Lenders) and the lenders providing such Incremental Facilities;

(x)         except to the extent permitted by clauses (v) through (ix) above and (xi) below, all terms and documentation with respect to any Incremental Facility (excluding any terms (x) applicable after the final maturity date of the Term Facility or the Revolving Facility, as applicable, or (y) that are also made for the benefit of the Lenders (or, in respect of any financial covenant applicable to any Incremental Revolving Facility, that are made for the benefit of the Revolving Lenders)) shall (I) be substantially identical to, or no more favorable (taken as a whole) to the lenders providing such Incremental Facility than those contained in the Term Facility or the Revolving Facility, as applicable, or (II) be reasonably satisfactory to the Administrative Agent (acting at the direction of the Required Lenders);

(xi)        any Incremental Facility may provide for the ability to participate with respect to any voluntary prepayments or any mandatory prepayments, on a pro rata basis (solely for Incremental Facilities that are secured by a lien on the Collateral that is pari passu with the lien securing the initial Facilities) or less than pro rata basis with the applicable Facility (and on a greater than pro rata basis, solely with respect to any such Incremental Facility incurred pursuant to the Permitted Earlier Maturity Indebtedness Exception);

(xii)       the Borrower may appoint any person to arrange such Incremental Facility and provide such arranger any titles with respect to such Incremental Facility as it deems appropriate; provided, that (A) the existing Lenders will be afforded a right of first offer (“ROFO”) to provide the entire principal amount of the Incremental Facility on terms proposed by such existing Lenders and (B) in the event that the Borrower declines to accept such proposals, or the existing Lenders decline to commit to provide the requested amount of such Incremental Facility, the Borrower may seek one or more additional Lenders for purposes of participating in the Incremental Facility (with allocations among such additional Lenders to be determined by such additional Lenders and the Borrower); provided, further, that (1) the Borrower may not accept any proposals from such additional Lenders if the terms and conditions with respect to the Incremental Facility to be provided by such additional Lenders are the same or are more favorable to such Additional Lenders than the terms and conditions of the Incremental Facility that was subject to the ROFO and (2) the existing Lenders shall not be afforded any further right of first offer upon exercise of the ROFO pursuant to clause (B) above (the “Incremental ROFO”);

(xiii)     the aggregate principal amount of all Incremental Revolving Facilities, to the extent provided on a super priority basis permitted under the Facilities Documentation, will not exceed $25.0 million;

(xiv)       the Administrative Agent shall not be required to execute, accept or acknowledge any incremental joinder documentation, except that the agent-related provisions shall be reasonably acceptable to the Administrative Agent; provided, that the Administrative Agent shall receive prior written notice of such incremental joinder documentation; and

(xv)        no Incremental Facility shall be permitted to be incurred prior to the DDTL Commitment Termination Date (as defined below).

“Permitted Earlier Maturity Indebtedness Exception” shall mean, with respect to any Incremental Term Facility, any Refinancing Term Facility and/or any Refinancing Notes (as defined below), Indebtedness which may have a maturity date that is earlier than, and a weighted average life to maturity that is shorter than, the latest maturity date and the weighted average life to maturity of any Term Loans outstanding at the time such debt is incurred, consisting of (i) any indebtedness up to the amount set forth on Annex II hereto of such indebtedness in the aggregate or (ii) customary “bridge” facilities, escrow or other similar arrangements that automatically convert into or are exchanged for permanent financing that does not provide for an earlier final maturity date than the final maturity of the Term Facility or shorter weighted average life to maturity than the weighted average life of the Term Facility.

Any portion of any Incremental Facility and any Incremental Equivalent Indebtedness incurred under the Incremental Fixed Amount, the Incremental Prepayment Amount and the Incremental Extension Amount shall be automatically reclassified as incurred under the Incremental Ratio Test if the Incremental Ratio Test is satisfied at any time after the incurrence thereof on a pro forma basis. The Borrower may select utilization under one or more of the Incremental Fixed Amount, the Incremental Prepayment Amount, the Incremental Extension Amount and the Incremental Ratio Test in its sole discretion.

If loans or commitments are intended to be incurred under the Incremental Ratio Test, on the one hand, and the Incremental Fixed Amount, the Incremental Prepayment Amount and/or the Incremental Extension Amount, on the other hand, in a single transaction or series of substantially concurrent, related transactions, (x) incurrence of the portion of such loans or commitments to be incurred under the Incremental Ratio Test shall first be calculated without giving effect to any loans or commitments to be incurred under the Incremental Fixed Amount, the Incremental Prepayment Amount and/or the Incremental Extension Amount, but giving full pro forma effect to the use of proceeds of all such loans and commitments and related transactions, and (y) thereafter, incurrence of the portion of such loans or commitments to be incurred under the Incremental Fixed Amount, the Incremental Prepayment Amount and/or the Incremental Extension Amount shall be calculated.

Any Incremental Facility secured by the Collateral on a junior basis or any Incremental Equivalent Indebtedness, Ratio Debt or Incurred Acquisition Debt secured by the Collateral shall be subject to an Acceptable Intercreditor Agreement (as defined below).

For purposes of testing any ratios in the Incremental Ratio Test: (a) in incurring any delayed draw commitments or revolving credit commitments as Incremental Facilities, the Borrower shall test any applicable incurrence level assuming the delayed draw commitments or revolving credit commitments are fully drawn at the time of establishment thereof, in which case, any subsequent utilization of such delayed draw commitments or revolving credit commitments shall not require compliance with any incremental incurrence test; provided, that unfunded commitments under and delayed draw commitments shall be disregarded under the relevant voting provisions; and (b) the cash proceeds of any Incremental Facility shall be excluded from “net” indebtedness in determining whether such Incremental Facility can be incurred (but the use of proceeds thereof and all other permitted pro forma adjustments shall be included).

“Acceptable Intercreditor Agreement” will be defined as (a) for indebtedness secured by a lien on the Collateral that is pari passu with the lien securing the initial Facilities, a pari passu intercreditor agreement containing the terms set forth in an exhibit to be attached to the Facilities Documentation (with any modifications which are reasonably acceptable to the Borrower and the Administrative Agent (acting at the direction of the Required Lenders)), (b) for indebtedness secured by a lien on the Collateral that is junior to the lien securing the initial Facilities, a junior lien intercreditor agreement containing the terms set forth in an exhibit to be attached to the Facilities Documentation (with any modifications which are reasonably acceptable to the Borrower and the Administrative Agent (acting at the direction of the Required Lenders)), and (c) if requested by the Borrower, another pari passu or junior lien, as applicable, intercreditor agreement reasonably satisfactory to the Borrower and the Administrative Agent (acting at the direction of the Required Lenders); provided, that any Acceptable Intercreditor Agreement shall be limited to terms governing the sharing of liens and the relative rights and obligations of the secured parties regarding Collateral and the proceeds thereof and, other than a customary DIP cap to be agreed, shall not restrict or limit any indebtedness, liens or the terms and conditions thereof (including any amendments and refinancings).

For purposes of determining compliance with or satisfaction of any applicable conditions and requirements under any provision of the Facilities Documentation (including, without limitation, (i) calculation of the Total Net First Lien Leverage Ratio, the Total Net Secured Leverage Ratio or the Total Net Leverage Ratio, (ii) compliance with representations and warranties and the absence of any defaults or events of default or (iii) testing availability under baskets set forth in the Facilities Documentation (including baskets measured as a percentage of Consolidated EBITDA), in each case, in connection with (1) any permitted acquisition or investment in any assets, business or person, in each case the consummation of which is not conditioned on the availability of, or on obtaining, third party financing, (2) repayment or redemption of, or offer to purchase, any indebtedness, or (3) any restricted payment effected to consummate the transactions described in clauses (1) and (2) above (any such transaction, a “Limited Condition Transaction”), at the option of Holdings (such election, an “LCT Election”), the date of determination of whether any such action, condition or requirement is permitted, complied with or satisfied shall be deemed to be the date the definitive agreement for such Limited Condition Transaction is entered into, or in connection with an acquisition to which the United Kingdom City Code on Takeover and Mergers (or any comparable law, rule or regulation in any other jurisdiction) applies, the date on which a “Rule 2.7 announcement” of a firm intention to make an offer in respect of the a target of an acquisition (or equivalent notice under such comparable law, rule or regulation in such other jurisdiction) or, if applicable, delivery of notice, declaration of dividend or similar event (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 recently completed four fiscal quarter period for which financial statements have been delivered (or were required to have been delivered) and ended on or prior to the LCT Test Date, Holdings and its restricted subsidiaries could have taken such action on the LCT Test Date in compliance with such conditions and requirements, all such conditions and requirements shall be deemed to have been complied with. In connection with Limited Condition Transaction, the Facilities Documentation will require the absence of any default or event of default on the LCT Test Date and only require the absence of any payment or bankruptcy event of default on the date of consummation of any such Limited Condition Transaction. 

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 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, 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, notice, declaration filing or similar document for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or basket shall be calculated on a pro forma basis assuming such Limited Condition Transaction and other transactions in connection therewith had been consummated.

The Facilities Documentation will permit the Borrower and Guarantors (together “Loan Parties”, each individually a “Loan Party”) to (a) refinance Term Loans from time to time, in whole or part, with one or more new term facilities (each, a “Refinancing Term Facility”) under the Facilities Documentation, with the consent of the Borrower, the Administrative Agent (acting at the direction of the Required Lenders) and the institutions providing the applicable Refinancing Term Facility, it being understood and agreed that any Refinancing Term Facility shall be secured by the Collateral on a pari passu basis with the Term Facility, (b) refinance loans and commitments under the Revolving Facility from time to time, in whole or part, with one or more new revolving facilities (each, a “Refinancing Revolving Facility” and, together with each Refinancing Term Facility, the “Refinancing Facilities”) under the Facilities Documentation, with the consent of the Borrower, the Administrative Agent (acting at the direction of the Required Lenders) and the institutions providing the applicable Refinancing Revolving Facility, it being understood and agreed that any Refinancing Revolving Facility shall be secured by the Collateral on a pari passu basis with the Term Facility, and (c) refinance Term Loans from time to time, in whole or part, with one or more additional series of secured or unsecured notes or loans, it being understood and agreed that any such secured notes or loans may be secured by the Collateral on a pari passu basis with the Term Facility; provided, that all such secured notes or loans referred to in this clause (c) shall be subject to an Acceptable Intercreditor Agreement (any such notes or loans, “Refinancing Notes”; and the Refinancing Notes together with the Refinancing Facilities, “Refinancing Debt”); provided, that (i) other than the Permitted Earlier Maturity Indebtedness Exception, no Refinancing Debt shall mature prior to the latest maturity date under the Term Facility or the Revolving Facility, as applicable, or, other than in the case of a Refinancing Revolving Facility, have a shorter weighted average life than the Term Loans, (ii) there shall be no borrower or guarantor in respect of any Refinancing Debt that is not a Loan Party, and the borrower or issuer with respect to any Refinancing Debt must be the Borrower, (iii) if secured, such Refinancing Debt shall not be secured by any assets that do not constitute Collateral (except the Collateral Exclusions), (iv) all of the proceeds of such Refinancing Debt shall be promptly applied to permanently repay in whole or in part the Term Facility or the Revolving Facility, as applicable (and, in the case of the Revolving Facility, to permanently reduce the commitments thereunder), and shall not be in an aggregate principal amount greater than the principal amount of the Term Facility or the Revolving Facility, as applicable, being refinanced plus any fees, premium and accrued interest associated therewith, and costs and expenses related thereto, (v) any Refinancing Facility may provide for the ability to participate with respect to any voluntary prepayments or any mandatory prepayments on a pro rata or less than pro rata basis with the Facilities, and (vi) the covenants and events of default of such Refinancing Debt (excluding pricing and optional prepayment or redemption terms and covenants (x) applicable only to periods after the latest maturity date under the Term Facility or the maturity date under the Revolving Facility, as applicable, or (y) that are also made for the benefit of the Term Lenders or the Revolving Lenders, as applicable) shall (x) be reasonably satisfactory to the Administrative Agent (acting at the direction of the Required Lenders) or (y) be substantially identical to, or no more favorable (taken as a whole) to the lenders providing such Refinancing Debt than those contained in the Term Facility or the Revolving Facility, as applicable, being refinanced.

Affiliated Lenders may provide any portion of a Refinancing Term Facility; provided, that the terms relating to the holding of loans under any Refinancing Term Facility by an Affiliated Lender shall be no less restrictive to such Affiliated Lender than as provided below under the section titled “Assignments and Participations.” 

(A)        The proceeds of borrowings under the Term Facility will be used by the Borrower on the Closing Date as set forth in Exhibit A to the Commitment Letter.

(B)        Proceeds of borrowings under the Revolving Facility will be used by the Borrower and its subsidiaries for working capital, capital expenditures and the Transactions and for other general corporate purposes (including permitted acquisitions and other transactions permitted under the Facilities Documentation); provided, that the amount of the Revolving Facility available to be utilized on the Closing Date shall be subject to the limitation set forth below under the heading “Availability.” 

(C)         Proceeds of borrowings under the DDTL Facility will be used by the Borrower and its subsidiaries for (i) permitted acquisitions and other permitted investments, (ii) restricted stock payments (including the Cash Award Payments), (iii) payment of earnout obligations, (iv) permitted employee share repurchases, and (v) repayment of borrowings under the Revolving Facility within the previous ninety (90) days used to make any payments described in the foregoing clauses (i), (ii), (iii) and (iv). 

(A)         The Term Facility will be available in U.S. dollars in a single drawing on the Closing Date. Amounts borrowed under the Term Facility that are repaid or prepaid may not be re-borrowed.

(B)         The Revolving Facility will be available (i) on the Closing Date in an amount (other than any amounts drawn pursuant to clause (c) below) not to exceed $50.0 million (a) to repay outstanding indebtedness under any revolving or working capital facility of the Target, (b) to be used for working capital and other general corporate purposes (including the financing of permitted acquisitions and other permitted investments), (c) to replace, backstop or cash collateralize existing letters of credit, and (d) to pay fees and expenses related to the Transactions, and (ii) at any time after the Closing Date and prior to the final maturity of the Revolving Facility, in minimum principal amounts consistent with the Documentation Principles. Amounts repaid under the Revolving Facility may be re-borrowed.

(C)         The DDTL Facility will be available after the Closing Date until the date that is thirty-six (36) months after the Closing Date (the “DDTL Commitment Expiration Date”), it being agreed that (i) all unused commitments in respect of the DDTL Facility shall automatically terminate on the DDTL Commitment Expiration Date (the earlier of the DDTL Commitment Expiration Date and the borrowing of loans in the full amount of the commitments in respect of the DDTL Facility, the “DDTL Commitment Termination Date”), (ii) there will be no limit on the number of borrowings under the DDTL Facility but subject to minimum draw amounts to be agreed, and (iii) to the extent outstanding commitments under the DDTL Facility exceed $100.0 million on the second anniversary of the Closing Date, the outstanding commitments under the DDTL Facility shall automatically be reduced to $100.0 million on such date. Amounts borrowed under the DDTL Facility that are repaid or prepaid may not be re-borrowed.

(A)       Term Facility

The initial Term Facility will mature on the date that is seven years after the Closing Date and will amortize in equal quarterly installments, commencing with the second full fiscal quarter ending after the Closing Date, in aggregate annual amounts equal to 1.00% of the original principal amount of the Term Facility with the balance payable on the seventh anniversary of the Closing Date; provided, that the amortization of any Incremental Term Facility may be adjusted in the form of an increase to the amortization of such Incremental Term Facility as may be necessary to cause such Incremental Term Facility to be treated as the same class as, and to permit “fungibility” with, the initial Term Facility.

(B)       Revolving Facility

The Revolving Facility will mature, and lending commitments will terminate, on the date that is seven years after the Closing Date.

(C)       DDTL Facility

The DDTL Facility will mature on the date that is seven years after the Closing Date and will amortize in equal quarterly installments, commencing with the later of (i) the second full fiscal quarter ending after the Closing Date and (ii) the first fiscal quarter after the funding of such Delayed Draw Term Loans, in aggregate annual amounts equal to 1.00% of the original principal amount of all outstanding Delayed Draw Term Loans, with the balance payable on the seventh anniversary of the Closing Date; provided, that the amortization of any Delayed Draw Term Loans may be adjusted in the form of an increase to the amortization of Delayed Draw Term Loans as may be necessary to cause such Delayed Draw Term Loans to be treated as the same class as, and to permit “fungibility” with, the initial Term Facility. 

The Facilities Documentation shall provide the right for individual Lenders to agree to extend the maturity date of their outstanding loans and commitments, as applicable (a “Permitted Modification”), upon the request of the Borrower and without the consent of any other Lender, with such extensions not subject to no default having occurred and be continuing, financial tests, “most favored nation” pricing or minimum extension conditions, and otherwise on terms consistent with the Documentation Principles.

Subject to the limitations set forth below in this section and the Certain Funds Provision, all obligations of the Borrower under (i) the Facilities (the “Borrower Obligations”) and (ii) at the election of Holdings, interest rate protection, commodity trading or hedging, currency exchange or other non-speculative hedging or swap arrangements or cash management arrangements entered into with the Administrative Agent, any Lender or any affiliate of the Administrative Agent or a Lender, in each case, either on the Closing Date or at the time of entering into such arrangements, any other person whose long term senior unsecured debt rating is A/A2 by S&P or Moody’s (or their equivalent) or higher, or any other person designated by the Borrower that agrees to indemnify the Administrative Agent as per the Facilities Documentation (the “Hedging / Cash Management Arrangements”) will be unconditionally guaranteed jointly and severally on a senior secured basis (the “Guarantees”) by the Guarantors.

“Guarantors” shall mean (i) Holdings, (ii) the Target, and (iii) any other restricted subsidiary organized in the United States that is not otherwise an Excluded Subsidiary or Immaterial Subsidiary.

Notwithstanding the foregoing, in connection with a Qualified Public Offering, Holdings may be released as a Guarantor and shall no longer be subject to any of the covenants set forth in the Facilities Documentation, in which case reference in the Facilities Documentation to Holdings (other than the passive holding company covenant, which shall no longer apply) will be deemed to refer to the Borrower.

“Qualified Public Offering” shall mean any transaction or series of transactions (including as a result of a merger with a SPAC) that results in any common equity interests of Holdings or any direct or indirect parent of Holdings (including an Up-C Entity) or any subsidiary that Holdings will distribute to its direct or indirect parent (including an Up-C Entity) being publicly traded on any United States national securities exchange or over the counter market, or any analogous exchange or market in Canada, the United Kingdom or any country of the European Union.

“Up-C Entity” shall mean a Person that owns, directly or indirectly, Equity Interests in Holdings and has control of Holdings, formed for the purpose of facilitating a public offering of indirect Equity Interests in Holdings via a public offering of the Equity Interests of such Person.

“Excluded Subsidiaries” shall be defined to include (a) non-wholly owned subsidiaries of Holdings if either (1) such entity is no longer a subsidiary of Holdings or (2)(x) Holdings has adequate investment capacity to have made an investment in such entity equal to the fair market value at such time of the investment that Holdings and its restricted subsidiaries hold in such entity, (y) the disposition or other transaction resulting in such entity becoming an Excluded Subsidiary was otherwise permitted under the Facilities Documentation, and (z) such disposition or transaction was made for a bona fide business purpose and not to evade the guarantee requirements under the Facilities Documentation, (b) unrestricted subsidiaries, (c) captive insurance companies, (d) not-for-profit subsidiaries, (e) special purpose entities, (f) other subsidiaries, in each case, to the extent the provision of a guarantee is otherwise prohibited by a contractual provision existing on the Closing Date (or, if later, on the date such person became a subsidiary, if not entered into in contemplation thereof) and any subsidiary a guarantee from which would result in material adverse tax consequences that are not de minimis as reasonably determined by Holdings, (g) any direct or indirect subsidiary of Holdings that is (i) a “controlled foreign corporation” as defined in Section 957 of the Internal Revenue Code of 1986, as amended (“the Code”), but only if (x) a “United States person” (within the meaning of Section 957(c) of the Code) that is a subsidiary of Holdings is, with respect to such subsidiary, a “United States shareholder” (within the meaning of Section 951(b) of the Code), and (y) such United States shareholder would be required to include in its gross income any amounts described in Section 951(a) or Section 951A(a) of the Code with respect to such controlled foreign corporation (a “US Shareholder Owned CFC”), (ii) a subsidiary with no material assets other than direct or indirect equity interests (or equity interests and indebtedness) in one or more foreign subsidiaries of Holdings that are US Shareholder Owned CFCs (a “CFC Holdco”), and (iii) any domestic subsidiary of a foreign subsidiary of Holdings that is a US Shareholder Owned CFC, (h) any subsidiary not organized, formed or incorporated in the United States, (i) [reserved], and (j) any other subsidiary reasonably agreed by the Borrower and the Administrative Agent (acting at the direction of the Required Lenders); provided, that the Borrower, in its sole discretion, may cause any restricted subsidiary that qualifies as an Excluded Subsidiary to become a guarantor.

“Immaterial Subsidiary” shall mean each restricted subsidiary of Holdings (other than the Borrower) that, as of the most recently ended Test Period, contributed less than 5.0% of third party revenues for the applicable Test Period and had assets with a net book value of less than 5.0% of total assets as of such date, in each case calculated on a pro forma basis; provided, that if the aggregate amount of third party revenues or the aggregate amount of total assets of all Immaterial Subsidiaries as of the most recently ended fiscal year is more than 10.0% (the “10% Test”) of the aggregate amount of third party revenues or the aggregate amount of total assets, respectively, of Holdings and its restricted subsidiaries (excluding for purposes of the 10% Test all subsidiaries that are Excluded Subsidiaries), the Borrower shall designate additional restricted subsidiaries (other than Excluded Subsidiaries) as guarantors to satisfy the 10% Test in accordance with the Documentation Principles.

The Borrower may designate any subsidiary of Holdings as an “unrestricted subsidiary” (subject only to no default or event of default then existing or resulting therefrom and the resulting investment being in compliance with the Facilities Documentation); provided that no subsidiary that owns or has an exclusive license (other than exclusive licenses existing as of the Closing Date granted to foreign subsidiaries of Holdings) to any material intellectual property (which for the avoidance of doubt, shall include any artificial intelligence-related intellectual property, products or other items) may be a non-Loan Party or designated as an “unrestricted subsidiary,” no Loan Party holding material intellectual property may become a non-Loan Party, and no material intellectual property may be transferred or contributed to, or exclusively licensed by (other than exclusive licenses existing as of the Closing Date granted to foreign subsidiaries of Holdings), any non-Loan Party. With respect to any subsidiary designated as an “unrestricted subsidiary”, the Borrower may re-designate any such unrestricted subsidiary as a restricted subsidiary, subject only to no event of default then existing or resulting therefrom and the resulting debt and liens being in compliance with the Facilities Documentation. Unrestricted subsidiaries 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, assets, liabilities and indebtedness of unrestricted subsidiaries will not be taken into account for purposes of calculating Consolidated EBITDA or any financial ratio or covenant contained in the Facilities Documentation, except to the extent of distributions received therefrom. The designation of any restricted subsidiary as an unrestricted subsidiary shall constitute an investment therein at the date of designation in an amount equal to the fair market value thereof. The designation of any unrestricted subsidiary as a restricted subsidiary shall constitute the incurrence at the time of designation of any indebtedness or liens of such subsidiary existing at such time. Notwithstanding anything herein to the contrary, Tock, LLC may be designated as an “unrestricted subsidiary”.

Subject to the limitations set forth below in this section and the Certain Funds Provision, the Borrower Obligations, the Guarantees and any Hedging / Cash Management Arrangements will be secured by first priority liens on and security interests in substantially all of the personal property of the Loan Parties consisting of accounts, cash or cash equivalents, goods (including inventory and equipment), documents, instruments, investment property, chattel paper, letters of credit, letter-of-credit rights, commercial tort claims and general intangibles (including intellectual property), as each such term is defined under Article 9 of the UCC (collectively, but excluding the Excluded Assets (as defined below), the “Collateral”).

Notwithstanding anything to the contrary set forth above, the Loan Parties will not be required, nor will the Administrative Agent be authorized, (a) to perfect security interests in the Collateral located in the United States of America other than by (i) “all asset” filings pursuant to the Uniform Commercial Code in the office of the secretary of state (or similar central filing office) of the relevant state(s) of organization or formation of such Loan Party; (ii) filings in (A) the United States Patent and Trademark Office with respect to any material U.S. registered patents and trademarks and (B) the United States Copyright Office of the Library of Congress with respect to material copyright registrations, in the case of each of (A) and (B), constituting Collateral; and (iii) delivery to the Administrative Agent (or a bailee or other agent of the Administrative Agent) to be held in its possession of all Collateral consisting of (A) certificates representing pledged equity, and (B) promissory notes and other instruments constituting Collateral, in each case, in the manner provided in the Facilities Documentation; provided, promissory notes and instruments having an aggregate principal amount less than $25.0 million need not be delivered to the Administrative Agent; provided, further, that no other perfection by “control” will be required; (b) to enter into any control agreement, lockbox or similar arrangement with respect to any deposit account, securities account, commodities account or other bank account, or otherwise take or perfect a security interest with control (other than control by possession of pledged equity and pledged debt as required by clause (a) above); (c) to take any action in any foreign jurisdiction to create any security interest in assets located or titled outside of the United States (including any intellectual property registered in any foreign jurisdiction) or perfect any security interest in such assets or enter into any security agreements or pledge agreements governed by the laws of any foreign jurisdiction; or (d) to take any action with respect to perfecting a Lien with respect to letters of credit, letter of credit rights, commercial tort claims with a value of less than $25.0 million, chattel paper or assets (including vehicles) subject to a certificate of title or similar statute (in each case, other than, with respect to the Loan Parties, the filing of customary “all asset” UCC-1 financing statements) or to deliver landlord lien waivers, estoppels, bailee letters or collateral access letters (this sentence, the “Prohibited Perfection Actions”).

Notwithstanding anything to the contrary, the Collateral shall exclude the following: (i) (x) any fee owned real property with a fair market value of less than $20.0 million, (y) any fee owned real property that is not located in the United States and (z) all leasehold real property, (ii) any property where the grant of a security interest therein is prohibited by law (including restrictions in respect of margin stock and financial assistance, fraudulent conveyance, preference, thin capitalization or other similar laws or regulations) or contract binding on such property at the time of its acquisition and not entered into in contemplation thereof, or requires government or third party consents pursuant to applicable law that have not been obtained, in each case, after giving effect to applicable anti-assignment provisions of the Uniform Commercial Code or other applicable law, other than the proceeds and receivables thereof the assignment of which is expressly deemed effective under the Uniform Commercial Code or other applicable law notwithstanding such prohibition or restriction, (iii) any voting equity interests in a US Shareholder Owned CFC or in a CFC Holdco in excess of sixty-five percent (65%) of the voting equity interests in such a US Shareholder Owned CFC or in a CFC Holdco, (iv) any assets to the extent a security interest therein would result in material adverse tax consequences that are not de minimis as reasonably determined by Holdings, (v) margin stock, (vi) any property where the cost of obtaining a security interest in, or perfection of, such assets exceeds the practical benefit to the Lenders afforded thereby as reasonably determined by Holdings in consultation with the Administrative Agent (who shall inform the Required Lenders), (vii) any governmental licenses or state or local franchises, charters and authorizations, to the extent a security interest in any such license, franchise, charter or authorization is prohibited or restricted thereby after giving effect to the applicable anti-assignment provisions of the Uniform Commercial Code or other applicable law, other than the proceeds and receivables thereof the assignment of which is expressly deemed effective under the Uniform Commercial Code or other applicable law notwithstanding such prohibition or restriction, (viii) any lease, license, contract, third party arrangement or other agreement or any property subject to a purchase money security interest, finance lease obligation or similar arrangement permitted by the Facilities Documentation to the extent that a grant of a security interest therein would violate or invalidate such lease, license or agreement or purchase money, finance lease or similar arrangement or create a right of termination in favor of any other party thereto (other than Holdings or any of the Restricted Subsidiaries) or otherwise amend any rights, benefits and/or obligations or require the taking of any action that would be materially adverse to the Borrower or any Guarantor, after giving effect to the applicable anti-assignment provisions of the Uniform Commercial Code or other applicable law, other than proceeds and receivables thereof, the assignment of which is expressly deemed effective under the Uniform Commercial Code or other applicable law notwithstanding such prohibition, (ix) any intent-to-use trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which, the grant of a security interest therein would impair the validity or enforceability of such intent-to-use trademark application under applicable U.S. federal law, (x) any assets of Excluded Subsidiaries or Immaterial Subsidiaries, (xi) any property acquired after the Closing Date that is secured by pre-existing secured indebtedness permitted under the Facilities Documentation not incurred in anticipation of the acquisition by the Borrower or the applicable Guarantor of such property, to the extent that the granting of a security interest in such property would be prohibited under the terms of such secured indebtedness after giving effect to the applicable anti-assignment provisions of the Uniform Commercial Code or other applicable law, other than the proceeds and receivables thereof the assignment of which is expressly deemed effective under the Uniform Commercial Code or other applicable law notwithstanding such prohibition or restriction, (xii) equity interests in Excluded Subsidiaries, Immaterial Subsidiaries, unrestricted subsidiaries, captive insurance companies, joint ventures, non-wholly owned subsidiaries and special purpose entities, (xiii) (A) payroll, healthcare and other employee wage and benefit accounts, (B) tax accounts, including, without limitation, sales tax accounts, (C) escrow, defeasance and redemption accounts, (D) fiduciary or trust accounts, (E) accounts utilized solely to hold amounts on deposit of any party other than the Borrower, a Guarantor or any restricted subsidiary thereof, and (F) cash collateral accounts securing credit card facilities, merchant accounts and letter of credit facilities, and, in the case of clauses (A) through (E), the funds or other property held in or maintained in any such account, (xiv) receivables assets securing obligations in respect of, or otherwise transferred in connection with, a permitted receivables financing, and (xv) other exceptions to be mutually agreed upon or that are consistent with the Documentation Principles. The foregoing described in clauses (i) through (xv) are, collectively, the “Excluded Assets.”

In each applicable instance in this “Security” section, materiality shall be determined in a manner consistent with the Documentation Principles or as otherwise mutually agreed.

Until an event of default shall have occurred and be continuing and the Administrative Agent shall have provided one business day’s prior written notice to the Borrower, each grantor shall retain and exercise voting rights with respect to any shares pledged by it and the person whose shares have been pledged will be permitted to pay any dividends thereon to the extent otherwise permitted. No less than one business day’s notice shall be given prior to the exercise of remedies with respect to the Collateral after an event of default has occurred and is continuing. The Borrower will be required to give the Administrative Agent notice within the later of (i) thirty (30) calendar days of such event or (ii) ten (10) calendar days after the date that the next compliance certificate in respect of any financial statements is required to be delivered (or such later date as the Administrative Agent (acting at the direction of the Required Lenders in their reasonable discretion) may agree) of certain changes to the name, identity, jurisdiction or type of organization or location (within the meaning of the Uniform Commercial Code) of a Loan Party. The Facilities Documentation will provide that “fair market value” will be determined by Holdings in good faith (and if supported by an opinion of a reputable valuation or investment banking firm or resolution of the board of directors of the Borrower shall be conclusive).

Liens on assets that are transferred to a person that is not (and is not required to be) a Loan Party, liens on Excluded Assets and liens on any assets held by an Excluded Subsidiary or an Immaterial Subsidiary (or any person that becomes an Excluded Subsidiary or an Immaterial Subsidiary in a transaction permitted by the Facilities Documentation) shall be automatically released.

Subject to receipt of an officer’s certificate of the Borrower, the Administrative Agent shall execute such acknowledgements and releases as the Borrower may request in connection with any such release, and the Administrative Agent shall be entitled to (and shall) rely exclusively on an officer’s certificate of the Borrower when executing any such acknowledgement or release.

With respect to the Collateral, all pledges and security interests shall be created and perfected on terms and pursuant to documentation consistent with the Documentation Principles. 

Revolving Facility: None, subject to customary prepayment requirements if borrowings under the Revolving Facility exceed the commitments thereunder.

Term Facility and DDTL Facility: The Term Loans shall be prepaid with:

(a)       commencing with the first full fiscal year of the Borrower after the Closing Date, 50% of Excess Cash Flow, with a reduction to 25% and 0% based upon achievement of Total Net First Lien Leverage Ratios equal to 7.25:100 and 6.75:1.00, respectively; provided, that in any fiscal year, at the Borrower’s option, the following shall be deducted from the Excess Cash Flow payment on a dollar for dollar basis for the amount actually paid in cash, in each case except to the extent funded with long-term indebtedness (other than a revolving facility) (the following, the “Dollar For Dollar ECF Deductions”): (1) voluntary prepayments, redemptions or repurchases of loans under the Term Facility, any Incremental Term Facility, any other indebtedness secured by the Collateral on a pari passu basis with the Term Facility, loans under the Revolving Facility or any Incremental Revolving Facility (collectively, “Applicable Indebtedness”), in each case, secured by the Collateral on a pari passu basis with the Term Facility and only to the extent commitments thereunder are permanently reduced by the amount of such prepayments (including prepayments or repurchases at a discount to par, with credit given for par value of the indebtedness subject to such prepayment or repurchase), other than prepayments or payments funded with the proceeds of incurrences of long term indebtedness (other than a revolving facility), (2) taxes (including distributions to any parent holding company in respect of taxes), (3) [reserved], (4) capital expenditures, intellectual property development and software development costs, and capitalized software expenditures, (5) investments (including investments in joint ventures, but excluding intercompany investments and investments in cash and cash equivalents), and without duplication restricted payments with respect to investments, and permitted acquisitions, and (6) the amount set forth on Annex II hereto, in each case, at the option of Holdings, made prior to the date of such Excess Cash Flow prepayment or prior to the date on which such Excess Cash Flow prepayment is otherwise required, or solely with respect to the items set forth in clauses (4) and (5) above, such item is certified by a financial officer of the Borrower to be reasonably expected to be paid in respect of planned items to be made during the immediately succeeding twelve (12) months following such certification, but without duplication of any amount deducted in any period (provided, that amounts deducted and not actually spent shall be prepaid in the period during which the expenditure was committed or planned to occur); provided, that for purposes of determining the applicable Excess Cash Flow percentage above, the Total Net First Lien Leverage Ratio will be calculated to give pro forma effect to all such prepayments, investments and expenditures that are made after the end of the applicable fiscal year but prior to the making of such Excess Cash Flow prepayment; 

(b)       100% of the net after-tax 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 permitted Refinancing Facilities)); and

(c)       100% of the net after-tax cash proceeds of all non-ordinary course asset sales or other dispositions by Holdings or any of its restricted subsidiaries (including insurance and condemnation proceeds) pursuant to the General Asset Sale Basket in excess of the amount set forth on Annex II hereto per transaction (or series of related transactions), subject to the right of the Borrower and its restricted subsidiaries to reinvest such proceeds if such proceeds are reinvested (or committed to be reinvested) in assets useful to the Borrower’ and its restricted subsidiaries’ business, including permitted acquisitions and investments or utilized to prepay indebtedness of restricted subsidiaries secured by the Collateral on a pari passu basis, within eighteen (18) months and, if so committed to be reinvested, reinvested within six (6) months after such initial 18-month period, and other exceptions consistent with the Documentation Principles.

Notwithstanding the foregoing, all mandatory prepayments from Excess Cash Flow and asset sales (including insurance and condemnation proceeds) will be limited to the extent resulting in adverse tax consequences that are not de minimis and shall be subject to permissibility under local law of upstreaming proceeds (including financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), each as reasonably determined by Holdings.

With respect to the Term Facility, mandatory prepayments will be applied to the remaining amortization payments under the Term Facility in direct order of maturity or as otherwise directed by the Borrower; provided that (i) outstanding indebtedness incurred utilizing the Permitted Earlier Maturity Indebtedness Exception that is secured by the Collateral on a pari passu basis may be repaid prior to the repayment of the Term Loans and (ii) other outstanding indebtedness that is secured by the Collateral on a pari passu basis with the Term Facility may be repaid on a pro rata basis in respect of mandatory prepayments set forth above.

Unless Holdings otherwise elects, any Lender may elect not to accept any mandatory prepayment pursuant to clauses (a) and (c) above (each a “Declining Lender”). Any prepayment amount declined by a Declining Lender may be retained by the Borrower and its restricted subsidiaries (which the Borrower and its restricted subsidiaries may use for any purposes permitted under the Facilities Documentation) (such retained amounts, “Declined Proceeds”).

On or before the last day of each accrual period (as such term is defined in Section 1272(a)(5) of the Code) ending after the fifth anniversary of the Closing Date, the Borrower shall pay to the Lenders an amount sufficient, but not in excess of the amount necessary, to ensure that none of the Term Loans will be an “applicable high yield discount obligation” within the meaning of Section 163(i)(1) of the Code. 

Voluntary reductions of the unutilized portion of commitments and voluntary prepayments of any series, class or facility, as selected by Holdings in its sole discretion, of loans under the Facilities Documentation will be permitted at any time (subject to notice requirements consistent with the Documentation Principles), in minimum principal amounts consistent with the Documentation Principles, without premium or penalty (except as set forth in the next paragraph), subject to reimbursement of the Lenders’ redeployment costs actually incurred in the case of a prepayment of Term SOFR Rate borrowings other than on the last day of the relevant interest period. All voluntary prepayments of the Term Facility will be applied as directed by the Borrower (or, in the case of no direction, in direct order of maturity). 

The Borrower shall be required to pay a premium of (x) 2.00% of the principal amount of the Term Loans in connection with (1) any voluntary prepayment (including any mandatory assignment as a result of utilizing the yank-a-bank provisions), (2) any mandatory prepayment under paragraph (b) under the heading “Mandatory Prepayments” above or any other refinancing of such Term Loans (whether or not with the proceeds of indebtedness permitted under the Facilities Documentation) and (3) an acceleration of the Term Loans (each, a “Prepayment Event”), in each case, occurring on or prior to the one year anniversary of the Closing Date and (y) 1.00% of the principal amount of the Term Loans in connection with any Prepayment Event occurring after the one year anniversary of the Closing Date and on or prior to the two year anniversary of the Closing Date.

Notwithstanding the foregoing, the call premium specified above shall be reduced by 50% if such prepayment is made in connection with (i) a Change of Control or (ii) a Qualified Public Offering. 

Definitive documentation for the Facilities (the “Facilities Documentation”) will be prepared by Latham & Watkins LLP, as counsel to the Borrower, and (a) will be based on and no less favorable to the Borrower than the “Project Magnesium” credit agreement provided to the Lead Arrangers prior to the date of the Commitment Letter (as amended through and including the second amendment thereto, the “Precedent Documentation”), with standards, qualifications, thresholds, exceptions, “baskets” and grace and cure periods no less favorable to the Borrower and its restricted subsidiaries than the Precedent Documentation (it being understood that negative covenant exceptions and thresholds (other than thresholds regarding perfection steps) that are subject to a monetary cap shall also include a “grower” component based on a percentage of pro forma LTM EBITDA of the Borrower that corresponds to the applicable initial monetary cap, (b) will cure any mistakes or defects in the Precedent Documentation, (c) will have terms no less favorable to the Borrower than the Target’s existing credit facilities (except to the extent set forth herein), (d) will reflect the terms set forth in this Term Sheet (it being understood that no provision specifically referenced in this Term Sheet will be subject to (i) the absence of any outstanding default or event of default unless specified herein or (ii) additional requirements not set forth in this Term Sheet) and the Fee Letter, and with standards, qualifications, thresholds, exceptions, “baskets” and grace and cure periods consistent with the Precedent Documentation and giving effect to the Certain Funds Provision, the definitive terms of which will be negotiated in good faith, giving due regard to differences in the business of the Borrower and its subsidiaries and reflecting the operational and strategic requirements and limitations of Borrower and its subsidiaries in light of their size and capitalization, geographic location, line of business, the Sponsor Model delivered to Blackstone Credit, BCA and Ares on May 6, 2024 (the “Model”), the Quality of Earnings Report delivered to Blackstone Credit, BCA and Ares on May 10, 2024 (the “QofE Report”), the proposed business plan, the disclosure schedules in the Transaction Agreement and the industries, businesses and business practices in which the Borrower and its subsidiaries are engaged, and (e) automatic acceleration following a bankruptcy or insolvency event of default shall only be applicable in the case of the bankruptcy or insolvency of entities incorporated or formed in the United States. To the extent any target company does not have financial statements for the applicable Test Period, the pro forma calculations shall be made based on the financial statements actually available with appropriate adjustments or such other financial information as determined by Holdings in a commercially reasonable manner. The Facilities Documentation will (I) except as provided herein and except to the extent the same would contravene any provision hereof, include the Administrative Agent’s customary agency provisions and certain mechanical provisions (consistent with and reflective of the Administrative Agent’s customary requirements and practices), (II) contain only those payments, conditions to borrowing, mandatory prepayments, representations, warranties, covenants and events of default expressly set forth in or contemplated by this Term Sheet, (III) take into account any changes in law or accounting standards, (IV) be modified as necessary to reflect the corporate structure of Holdings and its subsidiaries, (V) provide that if Holdings shall so elect, any obligation of a person under a lease that is not (or would not be) required to be classified and accounted for as a capitalized lease (or otherwise be treated similarly) on a balance sheet of such person under GAAP, as in effect as of December 31, 2017, shall not be treated as a capitalized lease as a result of the adoption of changes in, or in the application of, GAAP and shall continue to be treated as an operating lease (and shall not constitute indebtedness for purposes of the Facilities Documentation), (VI) provide that the delivery by the Borrower of a third party valuation report from a nationally recognized accounting, appraisal, investment banking or consulting firm or another firm reasonably acceptable to the Administrative Agent (acting at the direction of the Required Lenders) shall be conclusive with respect to the value of the assets covered thereby, (VII) not include any rounding up of Term SOFR Rate, Base Rate or any other benchmark rates, and (VIII) will include erroneous payment language substantially similar to the language recommended by the LSTA and any Lender that fails to return any payment that was deemed to be made erroneously by the Administrative Agent as provided in that language will be deemed to be a Defaulting Lender (collectively, the “Documentation Principles”).

Provisions “to be agreed” and the term “customary” will be interpreted in light of the Documentation Principles.

As used herein, “Closing Date EBITDA” shall mean an amount determined in accordance with the definition of Consolidated EBITDA as set forth on Annex III hereto, but shall be no less than $320.0 million.

Limited to the following: organizational status; power and authority; execution and delivery of the Facilities Documentation; enforceability of the Facilities Documentation; no violation of, or conflict with, law, charter documents or material agreements and no creation of liens; litigation; no default; margin regulations; governmental and regulatory approvals; no consents; compliance with laws; Investment Company Act; PATRIOT Act, OFAC, FCPA and other applicable anti-corruption and sanctions laws and regulations (subject to local law requirements) and anti-terrorism, anti-money laundering and anti-corruption laws; beneficial ownership certification; accuracy of disclosure as of the Closing Date; financial statements and projections; no Material Adverse Effect (after the Closing Date); subsidiaries on the Closing Date; taxes; ERISA compliance; labor matters; intellectual property; creation, validity, perfection and priority of security interests; environmental laws; properties; solvency of Holdings and its subsidiaries, taken as a whole, on the Closing Date upon consummation of the Transactions; and treatment as senior indebtedness under all subordinated indebtedness, subject, in the case of each of the foregoing representations and warranties, to qualifications and limitations for knowledge and materiality consistent with the Documentation Principles. The foregoing representations and warranties shall apply to Holdings and its restricted subsidiaries and (except with respect to organizational existence of the Borrower and the Guarantors, power and authority of the Borrower and the Guarantors, due authorization, execution and delivery of the Facilities Documentation, enforceability of the Facilities Documentation, no conflicts of the Facilities Documentation with organizational documents, financial statements and projections, no default, margin regulations, Investment Company Act, PATRIOT Act, OFAC, FCPA and other applicable sanctions and anti-terrorism, anti-money laundering and anti-corruption laws, beneficial ownership certification, accuracy of disclosure as of the Closing Date, subsidiaries, the creation, validity and perfection and priority of security interests, solvency of Holdings and its subsidiaries, taken as a whole, on the Closing Date, and treatment as senior indebtedness under all subordinated indebtedness) shall be subject to exceptions that could not reasonably be expected to have a Material Adverse Effect. Subject to the Certain Funds Provisions, all representations and warranties will be made on the Closing Date.

“Material Adverse Effect” shall mean, on the Closing Date, a “Company Material Adverse Effect” (as defined in the Transaction Agreement) and, thereafter, a material adverse effect on (i) the business, assets, operations or financial condition of the Borrower and its restricted subsidiaries, taken as a whole, (ii) the ability of the Borrower and the Guarantors (taken as a whole) to perform their payment obligations under the Facilities Documentation; or (iii) the rights and remedies available to, or conferred upon, the Administrative Agent, any Lender or any other secured party under the Facilities Documentation.

Except as otherwise provided herein (including in respect of Limited Condition Transactions), each extension of credit after the Closing Date will be conditioned upon: delivery of notice, accuracy of representations and warranties in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representations and warranties shall be accurate in all respects), and absence of defaults.

Solely with respect to any borrowing under the DDTL Facility (and subject to the Limited Condition Transactions), the pro forma Total Net First Lien Leverage Ratio shall not exceed 7.50:1.00 (or, if the borrowing under the DDTL Facility shall be used to fund permitted employee share repurchases, the pro forma Total Net First Lien Leverage Ratio shall not exceed 6.50:1.00).

The Facilities Documentation will contain exceptions to the negative covenants consistent with the Documentation Principles and including, without limitation:

●     Asset sales exceptions to include (i) an unlimited amount, subject to, for dispositions of assets in excess of the amount set forth on Annex II hereto per transaction (or series of related transactions) or in the aggregate per fiscal year, (w) a 75% minimum cash consideration requirement (on a cumulative basis with all such asset sales) (the “General Asset Sale Basket”) with exceptions consistent with the Documentation Principles (including designation of up to the amount set forth on Annex II hereto of total non-cash consideration and assumed liabilities treated as cash), (x) receiving fair market value (as determined by Holdings in good faith), (y) a requirement that the net cash proceeds thereof be applied to the extent set forth in the section entitled “Mandatory Prepayments” above and (z) no event of default having occurred and continuing or that would result therefrom at the time of signing the definitive documentation therefor and (ii) an unlimited amount for dispositions of assets among Holdings and the restricted subsidiaries; provided, that the aggregate amount of dispositions made by Loan Parties to non-Loan Parties shall be permitted up to then available Non-Loan Party Investment Cap (and any such utilization shall reduce availability under such cap). 

●     Transfers of receivables assets in connection a permitted receivables financing to be permitted.

●     Sale / leasebacks to be permitted subject to the Sale / Leasebacks Cap, set forth in Annex II.

●     Unlimited sales of assets acquired with the proceeds of equity contributions after the Closing Date or assets contributed to Holdings after the Closing Date. 

●      Restricted payment exceptions to include (i) a post-Qualified Public Offering carve-out for the payment of restricted payments up to the greater of 7% per annum of the net proceeds thereof and 7% per annum of the market capitalization of Holdings or its direct or indirect parent, (ii) subject to the absence of an event of default, a general basket not to exceed the amount set forth on Annex II hereto, (iii) payment of management fees to the Sponsor subject to a cap to be agreed, (iv) for any taxable period for which Holdings or any of its subsidiaries is a member, or is disregarded for income tax purposes as separate from a member, of a consolidated, combined, unitary or similar income tax group of which a direct or indirect parent of Holdings is the common parent, payments to any direct or indirect parent of Holdings to enable such common parent to pay its income tax liability attributable to the income of Holdings and its subsidiaries in an amount not to exceed the tax liability that Holdings and such subsidiaries would have been required to pay if they had been a stand-alone taxpayer or tax group and (b) franchise and similar taxes, and other fees or expenses, required to maintain a parent entity’s corporate existence, (v) repurchases of management equity in an amount not to exceed the amount set forth on Annex II hereto per fiscal year, with unused amounts carried over to the immediately two succeeding years, plus other customary additions to this basket consistent with the Documentation Principles, (vi) excluded contributions previously made and not used (i.e., cash or cash equivalents constituting proceeds of the issuance of or contributions on qualified capital stock of the Borrower to the extent not increasing the Available Amount Basket (as defined below)), (vii) payments to any parent entity to (a) pay operating, overhead, legal, accounting and other professional fees and expenses, (b) pay fees related to any investment or offering of securities of any parent entity, whether or not successful, and (c) pay salary, bonus and other benefits on behalf of officers and employees of any parent entity, in each case to the extent related to the parent entity’s ownership of the Borrower and its subsidiaries, (viii) to the extent constituting a restricted payment, the consummation of the Transactions (including the payment of working capital and/or purchase price adjustments and Transaction Costs and the making of any other payment contemplated by the Transaction Agreement, including repayment to co-investors) and the making of appraisal payments to dissenting shareholders in connection with the Transactions or any other acquisitions, (ix) cash payments made from time to time in satisfaction of stock options and restricted stock units held by employees of Holdings and its subsidiaries that were converted into and substituted into cash rewards immediately prior to the Closing in accordance with the terms of, and subject to the price specified in, the Transaction Agreement (such payments, the “Cash Award Payments”); provided, that (other than such Cash Award Payments made with (i) RSU Closing Date Funded Amount and (ii) balance sheet cash in excess of an amount equal to the sum of the RSU Closing Date Funded Amount plus the Closing Date Working Capital Funded Amount) immediately after giving effect to the making of such restricted payment on a pro forma basis, (A) no payment or bankruptcy event of default has occurred and is continuing and (B) the Total Net Leverage Ratio (calculated on a pro forma basis) does not exceed (I) prior to the third anniversary of the Closing Date, 7.50:1.00 and (II) thereafter, 7.00:1.00, (x) restricted payments in an amount equal to the net cash proceeds received, whether prior to, on or following the Closing Date, from the sale of Tock, LLC, (xi) any other restricted payments in an aggregate amount not to exceed the Restricted Stock Payment Amount (less any amounts thereof applied to make Cash Award Payments), and (xii) subject to the absence of an event of default, unlimited restricted payments if the Total Net Leverage Ratio (calculated on a pro forma basis) does not exceed 6.00:1.00. Notwithstanding anything to the contrary herein, in no event shall the Facilities Documentation include any exception permitting restricted payments based on a fixed charge coverage ratio test.

“Restricted Stock Payment Amount” means the amount, if any, contributed to the capital of Holdings and its restricted subsidiaries in cash from time to time after the Closing Date for the purpose of making Cash Award Payments and not otherwise applied.

●     Restricted payments (including restricted investments and prepayments of Junior Debt) to be permitted based on a building basket (the “Available Amount Basket”) equal to the sum of (i) the amount set forth on Annex II hereto (provided that neither the Closing Date Working Capital Funded Amount nor the RSU Closing Date Funded Amount shall be applied under this clause (i)), plus (ii) the cumulative amount of 50% of Consolidated Net Income (as defined in Annex III hereto) (provided, that the amount under this clause (ii) shall not be less than $0), plus (iii) 100% of Declined Proceeds, plus (iv) the cash proceeds of new public or private equity issuances of any parent of the Borrower and contributed to the Borrower as qualified equity or of the Borrower (other than disqualified stock or any Specified Equity Contribution) actually received in the form of qualified equity after the Closing Date, plus (v) capital contributions to the Borrower made in cash or cash equivalents (other than disqualified stock or any Specified Equity Contribution) and the fair market value of any in-kind contributions, in each case made after the Closing Date, plus (vi) the net 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 (vii) to the extent not (x) included in Consolidated Net Income or (y) treated as a return increasing the capacity to make investments other than in reliance on the Available Amount Basket, returns, profits, distributions and similar amounts received in cash or cash equivalents by the Borrower and its restricted subsidiaries on investments in, or otherwise received from an unrestricted subsidiary or any Person other than a Subsidiary in which the Borrower or any restricted subsidiary owns any equity interest (including the net proceeds of any sale, or issuance of stock, of an unrestricted subsidiary but limited to the value of the original investment; provided, that the Available Amount Basket shall not be increased with any proceeds or returns from the sale of Tock, LLC), plus (viii) to the extent not (x) included in Consolidated Net Income or (y) treated as a return increasing the capacity to make investments other than in reliance on the Available Amount Basket, 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 Holdings or any of its restricted subsidiaries (in an amount equal to the fair market value (as determined in good faith by Holdings) of the investments of the Borrower and its restricted subsidiaries in such unrestricted subsidiary at the time of such re-designation or merger or consolidation but limited to the value of the original investment), minus any amount of restricted payments, prepayments of Junior Debt and Investments, in each case, made in reliance on the Available Amount Basket; provided that any use of the Available Amount Basket shall be subject to the absence of a payment or bankruptcy event of default; provided, further, that any use of clause (ii) of the Available Amount Basket shall be subject to (x) for restricted payments and prepayments of Junior Debt, compliance with a Total Net Leverage Ratio (calculated on a pro forma basis) equal to 7.00:1.00 and (y) for investments, compliance with a Total Net Leverage Ratio (calculated on a pro forma basis) equal to 7.50:1.00.

●     Permitted investment exceptions to include (i) unlimited investments among Holdings and the restricted subsidiaries; provided that the aggregate amount of investments made by Loan Parties in non-Loan Parties shall not exceed the amount set forth in Annex II hereto (the “Non-Loan Party Investment Cap”); (ii) unlimited “Permitted Acquisitions” (as defined in the Precedent Documentation); provided that the aggregate amount of consideration paid by Loan Parties in connection with Permitted Acquisition of subsidiaries that do not become Guarantors and assets that do not constitute Collateral, shall not exceed the amount set forth in Annex II hereto (the “Permitted Acquisition Non-Loan Party Investment Cap”); (iii) loans and advances to officers, directors, employees and consultants in an outstanding amount not to exceed the amount set forth on Annex II hereto (provided that non-cash loans in connection with such person’s purchase of equity interests of Holdings (or its direct or indirect parent) shall not be capped), (iv) a general basket in an outstanding amount not to exceed the amount set forth on Annex II hereto, (v) a basket for investments in similar businesses in an outstanding amount not to exceed the amount set forth on Annex II hereto, (vi) a basket for investments in unrestricted subsidiaries in an outstanding amount not to exceed the Unrestricted Subsidiary Investment Sublimit, (vii) a basket for investments in joint ventures in an outstanding amount not to exceed the amount set forth on Annex II hereto, (viii) investments existing on the Closing Date (with amounts in excess of $25.0 million required to be scheduled), (ix) investments in a special purpose entity in connection with any permitted receivables financing, (x) unsubordinated intercompany current liabilities owed to unrestricted subsidiaries or joint ventures incurred in the ordinary course of business for a bona fide business purpose in connection with the cash management operations of the Borrower and its subsidiaries, and (xi) subject to the absence of a payment or bankruptcy event of default, unlimited investments if the Total Net Leverage Ratio (calculated on a pro forma basis) does not exceed 7.25:1.00. Notwithstanding anything herein to the contrary, it is understood and agreed that no investments shall be made in, no deemed investment shall be made in upon designation of, and no dispositions or other transfers shall be made to, any unrestricted subsidiaries or their respective subsidiaries (I) in excess of the Unrestricted Subsidiary Investment Sublimit and (II) other than pursuant to the basket in clause (vi) above, and there shall be no reclassification, redetermination or reallocation of Investments permitted in reliance on such basket.

●     Prepayments of Junior Debt (excluding, for the avoidance of doubt, regularly scheduled principal payments, interest payments and payments of fees, expenses and indemnification obligations) with exceptions to include (i) subject to the absence of a payment or bankruptcy event of default, a general basket not to exceed the amount set forth on Annex II hereto, (ii) subject to the absence of a payment or bankruptcy event of default, cashless exchanges of Junior Debt for indebtedness meeting permitted refinancing indebtedness conditions, and (iii) subject to the absence of a payment or bankruptcy event of default, unlimited prepayments of Junior Debt if the Total Net Leverage Ratio (calculated on a pro forma basis) does not exceed 6.25:1.00.

●     Permitted liens exceptions to include (i) liens in respect of indebtedness incurred under the permitted finance lease / purchase money debt / mortgage basket, (ii) liens securing hedging or cash management obligations, (iii) a general lien basket (the “General Liens Basket”) not to exceed the amount set forth on Annex II hereto (which may include liens on the Collateral that are secured on a junior basis to the liens securing the Facilities, subject to an Acceptable Intercreditor Agreement), (iv) liens on assets of non-Guarantor entities so long as such liens secure obligations of non-Guarantor entities that are otherwise permitted and such liens only encumber assets of the non-Guarantor entities, (v) liens on property or shares of stock of a person at the time such person becomes a restricted subsidiary and liens on property at the time such property is acquired, in each case if such liens were not created in connection with or in contemplation of such other person becoming a restricted subsidiary or such property being acquired, (vi) liens in respect of taxes, (vii) liens arising as a result of the re-characterization as a loan and as a lien of any permitted asset sale, including any precautionary financing statement or similar filings in connection therewith, (viii) liens in connection with permitted sale-leaseback transactions, (ix) liens existing on the Closing Date (with amounts in excess of $25.0 million required to be scheduled), and (x) liens on any receivables assets granted in connection with a permitted receivables financing that is permitted under the Facilities Documentation.

●     The negative pledge covenant will not apply in respect of Excluded Assets.

●     Transactions with affiliates exceptions to include (i) payment of expenses, termination fees and customary fees for investment banking services made pursuant to agreements in effect on the Closing Date or approved by a majority of the board of directors (or similar governing body) of Holdings, the Borrower or the applicable Guarantor making such payment, in each case, subject to a cap to be agreed, (ii) transactions among Holdings and its restricted subsidiaries, (iii) transactions not in excess of the amount set forth on Annex II hereto, (iv) tax distributions (as set forth below), (v) transactions approved by a majority of disinterested directors, (vi) transactions for which a fairness opinion is provided by an internationally recognized investment bank or valuation firm, and (vii) transactions on fair and reasonable terms substantially as favorable to Holdings and its subsidiaries as would be obtainable in a comparable arm’s length transaction with a non-affiliate (as reasonably determined by Holdings).

●     The Borrower and its restricted subsidiaries will be permitted to:

●     incur any Refinancing Debt and any Incremental Facilities;

●     incur purchase money debt, mortgage debt and finance lease obligations not exceeding the amount set forth on Annex II hereto;

●     incur any secured or unsecured notes, loans or other indebtedness issued or incurred by the Borrower and/or any restricted subsidiary in lieu of any Incremental Facility in an aggregate outstanding principal amount not to exceed the Incremental Facilities Cap (any such notes, loans or other indebtedness, “Incremental Equivalent Indebtedness”), it being understood that any Incremental Equivalent Indebtedness shall (i) constitute utilization of the Incremental Facilities Cap, (ii) be subject to any applicable maturity and weighted average life provisions applicable to Incremental Facilities, (iii) if secured by a Lien on property of a Loan Party, not be secured by any assets other than the Collateral (other than the Collateral Exclusions) and be subject to an Acceptable Intercreditor Agreement, (iv) if guaranteed by any Loan Party, not be guaranteed by any person other than the Borrower and the Guarantors and (v) be subject to the MFN Provision and the Incremental ROFO; provided, that Incremental Equivalent Indebtedness, Ratio Debt and Incurred Acquisition Debt issued or incurred by restricted subsidiaries that are not Loan Parties shall be capped at an amount set forth on Annex II hereto;

●     incur indebtedness in respect of permitted sale/leaseback transactions in an unlimited amount;

●     incur non-Guarantor indebtedness in an outstanding principal amount not to exceed the amount set forth on Annex II hereto;  

●     incur joint venture indebtedness in an outstanding principal amount not to exceed the amount set forth on Annex II hereto;

●     incur foreign subsidiary indebtedness in an outstanding principal amount not to exceed the amount set forth on Annex II hereto;

●     incur (i) backstop or reimbursement obligations or other indebtedness in respect of letters of credit not to exceed the then-available Letter of Credit Sublimit, (ii) any guarantees of Holdings or any subsidiary related thereto, and (iii) any liens related thereto in an amount not to exceed 110% of such obligations; provided, that amounts incurred under this basket shall reduce availability under the Letter of Credit Sublimit on a dollar-for-dollar basis;

●     incur indebtedness under a general basket in an outstanding principal amount not to exceed the amount set forth on Annex II hereto (the “General Debt Basket”);

●     incur indebtedness (“Ratio Debt”) so long as after giving pro forma effect thereto, (i) if such Ratio Debt is secured by a lien on the Collateral that is pari passu with the lien securing the initial Facilities, the Total Net First Lien Leverage Ratio as of the last day of the most recently ended Test Period does not exceed the Maximum Total Net First Lien Leverage Ratio, (ii) if such Ratio Debt is secured by a lien on the Collateral that is junior to the lien securing the initial Facilities, the Total Net Secured Leverage Ratio as of the last day of the most recently ended Test Period does not exceed the Maximum Total Net Secured Leverage Ratio and (iii) if such Ratio Debt is unsecured or secured by assets not constituting Collateral, the Total Net Leverage Ratio as of the last day of the most recently ended Test Period does not exceed the Maximum Total Net Leverage Ratio, it being understood that any Ratio Debt shall (a) be subject to any applicable maturity and weighted average life provisions applicable to Incremental Facilities, (b) if secured by a Lien on property of a Loan Party, not be secured by any assets other than the Collateral (other than the Collateral Exclusions) and be subject to an Acceptable Intercreditor Agreement, (c) if guaranteed by any Loan Party, not be guaranteed by any person other than the Borrower and the Guarantors and (d) be subject to the MFN Provision; provided that Incremental Equivalent Indebtedness, Ratio Debt and Incurred Acquisition Debt issued or incurred by restricted subsidiaries that are not Loan Parties shall be capped at an amount set forth on Annex II hereto; 

●     assume indebtedness in connection with an acquisition that is not incurred in contemplation thereof in an amount not to exceed the amount set forth on Annex II hereto;

●     incur indebtedness in connection with any permitted acquisition or investment (“Incurred Acquisition Debt”) so long as after giving pro forma effect thereto, (i) if such Incurred Acquisition Debt is secured by a lien on the Collateral that is pari passu with the lien securing the initial Facilities, the Total Net First Lien Leverage Ratio as of the last day of the most recently ended Test Period does not exceed the Maximum Total Net First Lien Leverage Ratio, (ii) if such Incurred Acquisition Debt is secured by a lien on the Collateral that is junior to the lien securing the initial Facilities, the Total Net Secured Leverage Ratio as of the last day of the most recently ended Test Period does not exceed the Maximum Total Net Secured Leverage Ratio and (iii) if such Incurred Acquisition Debt is unsecured or secured by assets not constituting Collateral, the Total Net Leverage Ratio as of the last day of the most recently ended Test Period does not exceed the Maximum Total Net Leverage Ratio, it being understood that any Incurred Acquisition Debt shall (a) be subject to any applicable maturity and weighted average life provisions applicable to Incremental Facilities, (b) if secured by a Lien on property of a Loan Party, not be secured by any assets other than the Collateral (other than the Collateral Exclusions) and be subject to an Acceptable Intercreditor Agreement, (c) if guaranteed by any Loan Party, not be guaranteed by any person other than the Borrower and the Guarantors and (d) be subject to the MFN Provision; provided that Incremental Equivalent Indebtedness, Ratio Debt and Incurred Acquisition Debt issued or incurred by restricted subsidiaries that are not Loan Parties shall be capped at an amount set forth on Annex II hereto;

●     incur unsecured contribution indebtedness in an amount equal to 100% of the net cash proceeds received from the issuance or sale of equity by the Borrower or a capital contribution to the Borrower from stockholders after the Closing Date (provided that such net cash proceeds are excluded from the Available Amount Basket and not otherwise applied) (the “Contribution Debt Basket”);

●     obtain interest rate protection, commodity trading and hedging, currency exchange and other non-speculative hedging and swap arrangements and cash management arrangements in a manner consistent with the Documentation Principles; 

●      incur unlimited intercompany indebtedness, subject to the investment covenant and subordination provisions consistent with the Documentation Principles;

●     incur unlimited performance and surety bonds;

●     incur indebtedness under any permitted receivables financing, subject to the Permitted Receivables Indebtedness Cap set forth on Annex II; and

●     permit indebtedness existing on the Closing Date to remain outstanding (with amounts in excess of $25.0 million required to be scheduled).

The Facilities Documentation shall not permit (1) indebtedness to be incurred in reliance on the Available Amount Basket or (2) the issuance of “Designated Preferred Stock” (as defined in the Precedent Documentation).

There shall be no separate negative covenant restricting capital expenditures or earn-outs.

Each covenant shall also (i) permit classification and reclassification from time to time by the Borrower among one or more available baskets and exceptions within the same covenant, and (ii) permit reliance on one or more available exceptions and baskets at the Borrower’s option, and if such exceptions and baskets in a given covenant include a combination of fixed amounts (including any related builder or grower component) and amounts permitted under incurrence-based tests in concurrent transactions, any utilization of an incurrence-based basket in such covenant concurrently with a fixed basket in such covenant shall be calculated without giving effect to the concurrent utilization of such fixed amounts.

The Administrative Agent will execute Acceptable Intercreditor Agreements upon request of the Borrower to the extent the applicable debt and liens subject to such intercreditor agreements are permitted to be incurred and to have the priority set forth in such intercreditor agreement under the Facilities Documentation.

With respect to each dollar basket (including general baskets), the Borrower shall be permitted to convert (i) restricted payment capacity under the “General Basket” for Restricted Payments as set forth on Annex II hereto to Junior Debt prepayment capacity and investment capacity and (ii) Junior Debt prepayment capacity under the “General Basket for Prepayment of Junior Debt” as set forth on Annex II hereto to investment capacity.

Term Facility: None.