Exhibit (b)

EX-99.(B) 8 d352545dex99b.htm EXHIBIT (B) Exhibit (b)

Exhibit (b)

EXECUTION VERSION

CREDIT SUISSE

SECURITIES (USA)

LLC

CREDIT SUISSE AG

Eleven Madison

Avenue

New York, New York 10010

JEFFERIES

FINANCE LLC

520 Madison Avenue

New York, New York

10022

UBS AG, STAMFORD

BRANCH

677 Washington

Boulevard

Stamford, Connecticut

06901

UBS SECURITIES

LLC

1285 Avenue of the

Americas

New York, New York 10019

BANK OF AMERICA

MERRILL LYNCH

INTERNATIONAL

LIMITED

2 King Edward Street

London EC1A 1HQ

United Kingdom

SOCIÉTÉ

GÉNÉRALE

245 Park Avenue

New York, New York

10167

CONFIDENTIAL

July 28, 2016

Avast Software B.V.

Schiphol Boulevard 369

Tower F, 7th floor

1118BJ Schiphol

The Netherlands

Attention: Rene Bienz

and

CVC Capital Partners Limited

111 Strand

London, WC2R 0AG

United Kingdom

Attention: Alex Fotakidis & Phil Robertson

Project Phoenix

$85,000,000 Senior Secured Revolving Credit Facility

$1,600,000,000 Senior Secured Term Facilities

Amended and Restated Commitment Letter

Ladies and Gentlemen:

Avast Software B.V., a company organized under the laws of The Netherlands with corporate seat in Amsterdam, The Netherlands (“you” or the “Company”), has advised each of Credit Suisse AG (acting through such of its affiliates or branches as it deems appropriate, “CS”), Credit Suisse Securities (USA) LLC (“CS Securities”; CS and CS Securities, collectively, “Credit Suisse”), Jefferies Finance LLC (acting through such of its affiliates or branches as it deems appropriate, “Jefferies”), UBS AG, Stamford Branch (“UBS”), UBS Securities LLC (“UBSS”), Bank of America Merrill Lynch International Limited (acting through such of its affiliates or branches as it deems appropriate, “Bank of America”) and Société Générale (acting through such of its affiliates or branches as it deems appropriate, “Soc Gen”, and together with Credit Suisse, Jefferies, UBS, UBSS and Bank of America, the “Agents”, “we” or “us”) that you or a newly

formed wholly owned subsidiary of the Company organized in The Netherlands (such acquiring entity, the “Acquirer”) intend to acquire, directly or indirectly, shares of the company previously identified to us and code-named “Phoenix” (the “Target”) and to consummate the other Transactions described in the Transaction Description attached hereto as Exhibit A (the “Transaction Description”). Capitalized terms used but not defined herein shall have the meanings assigned to them in the Transaction Description, the Summary of Principal Terms and Conditions attached hereto as Exhibit B (the “Term Sheet”) or in the Summary of Additional Conditions attached hereto as Exhibit C (the “Summary of Additional Conditions”, and together with this amended and restated commitment letter, the Transaction Description and the Term Sheet, collectively, the “Commitment Letter”). All references to “USD”, “U.S. Dollars”, “dollars” or “$” in this Commitment Letter are references to United States dollars and all references to “EUR”, “euros” or “€” in this Commitment Letter are references to the single currency of the Participating Member States (where “Participating Member States” means any member state of the European Union that has the euro as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union).

You have advised the Agents that, in connection therewith, it is intended that the financing for the Transactions will include the senior secured credit facilities (the “Senior Secured Facilities”) described in the Term Sheet, in an aggregate principal amount of $1,685.0 million, comprised of (a) $1,600.0 million of senior secured term loan facilities, which shall be provided as (i) a senior secured term loan facility (the “Dollar Tranche Term Facility”) available in U.S. Dollars and (ii) a senior secured term loan facility available in euros, in each case, as set forth in the Term Sheet (the “Euro Tranche Term Facility”, and together with the Dollar Tranche Term Facility, the “Term Loan Facilities”) (with the allocation of the $1,600.0 million between the Dollar Tranche Term Facility and the Euro Tranche Term Facility to be determined by the Initial Lead Arrangers (as defined below) in consultation with the Company (it being understood and agreed that the Dollar Tranche Term Facility shall be in an aggregate principal amount of at least $800.0 million)) and (b) a senior secured revolving credit facility in an aggregate principal amount of $85.0 million (available in U.S. Dollars and other currencies as set forth in the Term Sheet) (as such applicable aggregate amounts under the Senior Secured Facilities may, at the option of the Company, be increased to fund any original issue discount or upfront fees in connection with the “flex” provisions in the Fee Letter (as defined below)).

1.	Commitments.

In connection with the foregoing, (a) CS is pleased to advise you of its several and not joint commitment to provide (x) 45.0% of the aggregate principal amount of each of the Term Loan Facilities and (y) $35.0 million of the aggregate principal amount of the Revolving Facility, (b) Jefferies is pleased to advise you of its several and not joint commitment to provide (x) 22.5% of the aggregate principal amount of each of the Term Loan Facilities and (y) $17.5 million of the aggregate principal amount of the Revolving Facility, (c) UBS is pleased to advise you of its several and not joint commitment to provide (x) 22.5% of the aggregate principal amount of each of the Term Loan Facilities and (y) $17.5 million of the aggregate principal amount of the Revolving Facility, (d) Bank of America is pleased to advise you of its several and not joint commitment to provide (x) 5.0% of the aggregate principal amount of each of the Term Loan Facilities and (y) $7.5 million of the aggregate principal amount of the Revolving Facility and (e) Soc Gen (together with CS, Jefferies, UBS and Bank of America, the “Initial Lenders”) is pleased to advise you of its several and not joint commitment to provide (x) 5.0% of the aggregate principal amount of each of the Term Loan Facilities and (y) $7.5 million of the aggregate principal amount of the Revolving Facility, in each case, subject only to the satisfaction or waiver by the Initial Lead Arrangers of the conditions set forth in Exhibit C hereto.

2.	Titles and Roles.

It is agreed that CS Securities, Jefferies and UBSS (each of CS Securities, Jefferies and UBSS in such capacity, an “Initial Lead Arranger”, and together with Bank of America and Soc Gen, the “Lead Arrangers”) and Bank of America and Soc Gen will act as joint lead arrangers and joint bookrunners for each of the Senior Secured Facilities. It is further agreed that CS will act as administrative agent for each of the Senior Secured Facilities (in such capacity, the “Administrative Agent”). It is further agreed that CS Securities will act as a Syndication Agent for each of the Senior Secured Facilities and each of Jefferies and UBSS will act as a co-documentation agent for each of the Senior Secured Facilities. Credit Suisse will have “left” placement in all marketing materials or other documentation used in connection with the Senior Secured Facilities (and all associated rights). You agree that no other agents, co-agents, arrangers, bookrunners or managers will be appointed and no other titles will be awarded and no compensation (other than as expressly contemplated in this Commitment Letter and the Fee Letter) will be paid to any Lender in connection with obtaining Lenders’ commitments to any of the Senior Secured Facilities unless you and the Initial Lead Arrangers shall so agree.

3.	Syndication.

The Agents reserve the right, prior to or after the execution of the Senior Credit Documentation, to syndicate all or a portion of the Initial Lenders’ respective commitments hereunder to a group of financial institutions (together with the Initial Lenders, the “Lenders”) identified by the Agents in consultation with you and reasonably acceptable to you with respect to the identity of such Lender and in consultation with you in respect of the amount of such Lender’s commitments; provided that, notwithstanding each Agent’s right to syndicate the Senior Secured Facilities and receive commitments with respect thereto, it is agreed that any syndication of, or receipt of commitments in respect of, all or any portion of an Initial Lender’s commitments hereunder prior to the initial funding under the Senior Secured Facilities shall not be a condition to such Initial Lender’s commitments nor reduce such Initial Lender’s commitments hereunder with respect to any of the Senior Secured Facilities, no assignments may be made prior to the initial funding of the Senior Secured Facilities and, unless you otherwise agree in writing, the Initial Lenders shall retain exclusive control over all rights and obligations with respect to its commitments, including all rights with respect to consents, modifications and amendments, until the Closing Date has occurred; provided further that, in any event, the Agents agree not to syndicate any of the commitments with respect to the Senior Secured Facilities to (x) any financial institutions, investors or other persons designated in writing by you to the Initial Lead Arrangers prior to July 6, 2016 (or affiliates of the foregoing designated in writing) or (y) any of your, the Target’s or your or its respective subsidiaries’ competitors that is in the same or a similar line of business as you, the Target and your or its respective subsidiaries designated in writing by you from time to time (or any affiliate of such a competitor that is not a bona fide debt fund or investment vehicle that is engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of business which is managed, sponsored or advised by any person controlling, controlled by or under common control with such affiliate and for which no personnel involved with the investment in such affiliate (i) makes (or has the right to make or participate with others in making) any investment decisions or (ii) has access to any information (other than information that is publicly available) relating to Holdings or any entity that forms a part of Holdings’ business (including subsidiaries of Holdings))) (collectively, “Disqualified Lenders”). The Agents intend to commence syndication efforts promptly upon the execution of this Commitment Letter by you and as part of its syndication efforts, it is our intent to have Lenders commit to the Senior Secured Facilities prior to the Closing Date (subject to the limitations set forth in the provisos to the preceding sentence). Until the date that is the earlier of (a) the Closing Date and (b) the date on which a Successful Syndication (as defined in the Fee Letter) is achieved (such period, the “Syndication Period”), you agree to use your commercially reasonable efforts to assist the Agents in completing a syndication that is reasonably satisfactory to the Initial Lead Arrangers and you. Such assistance shall include (a) your using commercially reasonable

efforts to ensure that any syndication efforts benefit materially from your existing lending and investment banking relationships and, to the extent practical and appropriate, the existing lending and investment banking relationships of the Target, (b) direct contact between senior management, non-legal representatives and advisors of you, on the one hand, and the proposed Lenders, on the other hand (and your using commercially reasonable efforts to provide contact between senior management, non-legal representatives and advisors of the Target, on the one hand, and the proposed Lenders, on the other hand), in all such cases at times mutually agreed upon, (c) to the extent requested by CS Securities, your assistance, and your using commercially reasonable efforts to cause the Target to assist, in the preparation of a customary confidential information memorandum for the Senior Secured Facilities (the “Confidential Information Memorandum”) and other customary marketing materials to be used in connection with syndication, (d) using your commercially reasonable efforts to procure an updated corporate credit rating and a corporate family rating (but not specific ratings) in respect of the Company from Standard & Poor’s Ratings Services (“S&P”) and Moody’s Investors Service, Inc. (“Moody’s”), respectively, and ratings (but not specific ratings) for each of the Term Loan Facilities from each of S&P and Moody’s and (e) the hosting, with the Initial Lead Arrangers, of two meetings of prospective Lenders at times and locations to be mutually agreed upon. In addition, you hereby agree that, unless the Initial Lead Arrangers otherwise agree, you shall use your commercially reasonable efforts to ensure that until the expiration of the Syndication Period, there shall be no competing issues of debt securities or syndicated credit facilities of the Company, the Target or any of their respective subsidiaries offered, placed or arranged (other than the Senior Secured Facilities, replacements, extensions and renewals of existing indebtedness that matures during the Syndication Period, indebtedness of the Company and its subsidiaries and the Target and its subsidiaries for ordinary course working capital requirements and ordinary course capital lease, purchase money and equipment financings and any other indebtedness of the Target and its subsidiaries permitted to be incurred pursuant to the Purchase Agreement or disclosed to the Initial Lead Arrangers in writing prior to July 6, 2016) if such debt securities or syndicated credit facilities would materially and adversely affect the primary syndication of the Term Loan Facilities. Notwithstanding anything to the contrary contained in this Commitment Letter or the Fee Letter, (i) the obtaining of the ratings referenced above shall not constitute a condition to the commitments hereunder or the funding of the Senior Secured Facilities on the Closing Date and (ii) neither the commencement nor completion of the syndication of the Senior Secured Facilities shall constitute a condition to the availability of the Senior Secured Facilities on the Closing Date or at any time thereafter.

CS Securities will, in consultation with you and the other Initial Lead Arrangers, manage all aspects of any syndication of the Senior Secured Facilities (in each case subject to the provisions set forth in this Commitment Letter and to your consent rights set forth in the preceding paragraph), including decisions as to the selection of institutions to be approached (which may not be Disqualified Lenders) and when they will be approached, when their commitments will be accepted, which institutions will participate (which institutions shall be reasonably acceptable to you), the allocation of the commitments among the Lenders and the amount and distribution of fees among the Lenders. To assist the Lead Arrangers in their syndication efforts, you agree promptly to prepare and provide (and to use commercially reasonable efforts to cause the Target to provide) to the Lead Arrangers all reasonably available material information with respect to you, your subsidiaries, the Target and its subsidiaries and the Transactions, including all financial information and projections reasonably acceptable to you (including financial estimates, budgets, forecasts and other forward-looking information, the “Projections”), as CS Securities may reasonably request in connection with the structuring, arrangement and syndication of the Senior Secured Facilities. For the avoidance of doubt, you will not be required to provide any information to the extent that the provision thereof would violate any attorney-client privilege, law, rule or regulation, or any obligation of confidentiality binding you, the Target or your or its respective affiliates (provided that in the event that you do not provide information in reliance on the exclusions in this sentence, you shall use commercially reasonable efforts to provide notice to the Lead Arrangers promptly upon obtaining knowledge that such information is being withheld and you shall use your commercially reasonable efforts to communicate, to

the extent permitted, the applicable information in a way that would not violate such restrictions and to eliminate such restrictions). Notwithstanding anything herein to the contrary, no financial statements shall be required to be provided to the Lead Arrangers in connection with the structuring, arrangement and syndication of the Senior Secured Facilities in addition to those delivered prior to July 6, 2016 (other than as set forth in paragraph 8 of Exhibit C). You hereby represent and warrant (but the accuracy of such representation and warranty shall not be a condition to the commitments hereunder or the funding of the Senior Secured Facilities on the Closing Date) that (in the case of information regarding the Target and its subsidiaries, to your knowledge), (a) all written information and written data other than the Projections and information of a general economic or general industry nature in connection with the transactions contemplated hereby (the “Information”) that has been or will be made available to the Agents by any of your representatives on your behalf in connection with the transactions contemplated hereby, taken as a whole, is or will be, when furnished, correct in all material respects and, taken as a whole, does not or will not, when furnished, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein not materially misleading in light of the circumstances under which such statements are made (after giving effect to all supplements thereto from time to time) and (b) the Projections that have been or will be made available to the Agents by you or by any of your representatives on your behalf in connection with the transactions contemplated hereby have been or will be prepared in good faith based upon assumptions that you believe to be reasonable at the time made and at the time the related Projections are made available to the Agents; it being understood that the Projections (i) are as to future events, are not to be viewed as facts and the Projections are subject to significant uncertainties and contingencies, many of which are beyond your control, that no assurance can be given that any particular Projections will be realized and that actual results during the period or periods covered by any such Projections may differ significantly from the projected results and such differences may be material and (ii) are not a guarantee of performance. You agree that if at any time prior to the Closing Date you become aware that any of the representations in the preceding sentence would be, to your knowledge (in the case of information regarding the Target and its subsidiaries), incorrect in any material respect if the Information and Projections were being furnished, and such representations were being made, at such time, then you will use commercially reasonable efforts to cause, to the extent practical, appropriate and reasonable, the Target to supplement the Information and the Projections so that, to your knowledge (in the case of information regarding the Target and its subsidiaries), such representations will be correct in all material respects under those circumstances it being understood that any such supplement shall cure any breach of such representation. In structuring, arranging and syndicating the Senior Secured Facilities, the Agents will be entitled to use and rely primarily on the Information and the Projections without responsibility for independent verification thereof.

You hereby acknowledge that (a) the Agents will make available Information and Projections to the proposed syndicate of Lenders by posting such Information and Projections on IntraLinks, SyndTrak Online or similar electronic means and (b) certain of the Lenders may be “public side” Lenders (i.e., Lenders that do not wish to receive (x) material non-public information (within the meaning of the United States federal and state securities laws and applicable foreign securities laws) with respect to the Target, its subsidiaries or their respective securities or (y) information of the type that would be material non-public information (within the meaning of the United States federal and state securities laws) with respect to you, your subsidiaries or your or their respective securities if you or your subsidiaries, as applicable, were public reporting companies (all such information, “MNPI”)) (each, a “Public Lender” and collectively, the “Public Lenders”). If reasonably requested by CS Securities, you agree to assist us in preparing an additional version of the confidential information memorandum to be used by Public Lenders. It is understood that in connection with your assistance described above, a customary authorization letter will be included in the confidential information memorandum that authorizes the distribution of the confidential information memorandum to prospective Lenders, containing a confirmation to the Lead Arrangers named in such confidential information memorandum by you, or at your option the Target, that the public-side version does not include MNPI and exculpating you, the Target and your and its respective affiliates and us

with respect to any liability related to the use of the contents of the confidential information memorandum or any related marketing material by the recipients thereof in violation of United States federal and state and applicable foreign securities laws. At the request of CS Securities, you agree to identify that portion of the Information that may be distributed to the Public Lenders as “PUBLIC” and you agree that you shall be deemed to have authorized the Public Lenders to treat such Information marked “PUBLIC” as not containing any MNPI (other than information about the Transactions and the Senior Secured Facilities) and we and the proposed Lenders will be entitled to treat any Information and Projections that are not specifically identified as “PUBLIC” as being suitable for posting only on the portion of any platform not available to or accessible by Public Lenders. You acknowledge and agree that the following documents may be distributed (including by e-mail) to Public Lenders (unless you promptly notify us otherwise and provided that you have been given a reasonable opportunity to review such documents and comply with the U.S. Securities and Exchange Commission (the “SEC”) disclosure requirements and disclosure obligations under applicable law): (a) drafts and final definitive documentation and term sheets with respect to the Senior Secured Facilities; (b) administrative materials prepared by the Lead Arrangers for prospective Lenders (such as a lender meeting invitation, allocations and funding and closing memoranda); and (c) notifications of changes in the terms of the Senior Secured Facilities. All Information shall be treated as being suitable for posting to Public Lenders unless otherwise specified by you.

4.	Fee Letter.

As consideration for the commitments of the Agents hereunder and their agreements to perform the services described herein, you agree to pay (or cause to be paid) the fees set forth in the Term Sheet and in the Amended and Restated Fee Letter dated as of the date hereof and delivered herewith with respect to the Senior Secured Facilities (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “Fee Letter”) on the terms and subject to the conditions set forth therein. Once paid, such fees shall not be refundable under any circumstances except as otherwise provided in the Fee Letter.

5.	Certain Funds Provision.

The commitments of each Initial Lender hereunder and each Agent’s agreement to perform the services described herein are subject only to the satisfaction or waiver by the Initial Lead Arrangers of the conditions set forth in Exhibit C hereto. Notwithstanding anything in this Commitment Letter, the Fee Letter, the Senior Credit Documentation or any other letter agreement or other undertaking concerning the financing of the Transactions to the contrary, (i) the only representations and warranties the accuracy of which shall be a condition to the availability of the Senior Secured Facilities on the Closing Date shall be (x) the Specified Representations (as defined below) and (y) such of the representations and warranties made with respect to the Target and its subsidiaries by the Target in the Purchase Agreement to the extent a breach of such representations and warranties is material to the interests of the Lenders (the “Specified Purchase Agreement Representations”); provided that, notwithstanding anything set forth in this Commitment Letter, the Fee Letter, the Senior Credit Documentation or any other agreement or other undertaking concerning the financing of the Transactions to the contrary, a failure of any Specified Purchase Agreement Representation to be true and correct will not result in a failure of a condition to the availability of the Senior Secured Facilities on the Closing Date or a Default or Event of Default under the applicable Senior Credit Documentation, unless such failure gives the Company (or its affiliates) the right to terminate the Company’s (or its affiliates’) obligation to consummate the Acquisition (or the right pursuant to the Purchase Agreement not to consummate the Acquisition) and (ii) the terms of the Senior Credit Documentation shall be in a form such that they do not impair availability of the Senior Secured Facilities on the Closing Date if the conditions set forth in Exhibit C hereto are satisfied or waived by the Initial Lead Arrangers. Those matters that are not covered by or made clear under the provisions of this Commitment Letter are subject to the approval and agreement of the Initial Lead Arrangers and you; provided that such approvals and agreements shall be in a manner that is consistent with the Term Sheet

and, with respect to other terms, the Documentation Principles and shall be subject to the Certain Funds Provision. For purposes hereof, “Specified Representations” means the representations and warranties made by, and solely in respect of, Holdings, the Company and the US Borrower in the Senior Credit Documentation and set forth in the Term Sheet relating to corporate or other organizational existence of Holdings, the Company and the US Borrower, power and authority of Holdings, the Company and the US Borrower (as it relates to the due authorization, execution and delivery of the Senior Credit Documentation by, and the enforceability of the Senior Credit Documentation against, Holdings, the Company and the US Borrower), the execution and delivery of the Senior Credit Documentation by, and the enforceability of the Senior Credit Documentation against, Holdings, the Company and the US Borrower, and Federal Reserve margin regulations consistent with the representation set for in Annex II to Exhibit B, the use of the proceeds not violating OFAC or FCPA, solvency (defined in a manner consistent with the Existing Avast Credit Agreement) as of the Closing Date (after giving effect to the Transactions) of Holdings and its subsidiaries on a consolidated basis and the Investment Company Act. This paragraph is referred to as the “Certain Funds Provision.” Without limiting the conditions precedent provided herein to funding the consummation of the Acquisition with the proceeds of the Senior Secured Facilities, the Lead Arrangers will cooperate with you as reasonably requested in coordinating the timing and procedures for the funding of the Senior Secured Facilities in a manner consistent with the Purchase Agreement.

6.	Indemnification; Expenses.

You agree (a) to indemnify and hold harmless each of the Agents and its affiliates and the respective officers, directors, employees, agents and members of each of the foregoing (each, an “Indemnified Person” and collectively, the “Indemnified Persons”) from and against any and all losses, claims, damages, liabilities and expenses, joint or several, of any kind or nature whatsoever to which any such Indemnified Person may become subject arising out of or in connection with this Commitment Letter, the Original Commitment Letter, the Fee Letter, the Original Fee Letter (as defined in the Fee Letter), the Transactions, the Senior Secured Facilities or any related transaction or any claim, litigation, investigation or proceeding, actual or threatened, relating to any of the foregoing (any of the foregoing, a “Proceeding”), regardless of whether any such Indemnified Person is a party thereto, and to reimburse each such Indemnified Person within 30 days after written demand (together with reasonably detailed backup documentation supporting such demand) for any reasonable and documented out-of-pocket legal expenses of one firm of counsel for all Indemnified Persons (taken as a whole) and, if necessary, one firm of local counsel in each appropriate jurisdiction, in each case for all Indemnified Parties (taken as a whole) (and, in the case of an actual or perceived conflict of interest where the Indemnified Person affected by such conflict informs you of such conflict and thereafter retains its own counsel, of one additional firm of counsel for all such affected Indemnified Persons taken as a whole, but no other third party advisors without your prior consent) or other reasonable and documented out-of-pocket expenses incurred in connection with investigating or defending any of the foregoing; provided that the foregoing indemnity will not, as to any Indemnified Person, apply to losses, claims, damages, liabilities or related expenses (i) to the extent they have resulted from the willful misconduct, bad faith or gross negligence of such Indemnified Person or any Related Person (as defined below) of such Indemnified Person (as determined by a court of competent jurisdiction in a final and non-appealable decision), (ii) arising from a material breach of the obligations of such Indemnified Person or any Related Person under this Commitment Letter, the Fee Letter or the Senior Credit Documentation (as determined by a court of competent jurisdiction in a final and non-appealable decision) or (iii) arising out of, or in connection with, any Proceeding that does not involve an act or omission by you or any of your controlling persons and that is brought by an Indemnified Person against any other Indemnified Person (other than any Proceeding brought against any agent or a Lead Arranger solely in its capacity as, or in the fulfillment of its role as, an Agent, a Lead Arranger or another similar role under the Senior Secured Facilities), and (b) to reimburse the Agents from time to time, upon presentation of a summary statement, for all reasonable and documented out-of-pocket expenses (including but not limited to expenses of the Lead Arrangers’ due diligence investigation, syndication expenses, travel

expenses and reasonable and documented out-of-pocket legal fees and disbursements of one firm of counsel to the Agents (taken as a whole) identified in the Term Sheet and one firm of local counsel to the Agents in each appropriate jurisdiction (except allocated costs of in-house counsel)), in each case, to the extent any such expenses were incurred in connection with the Senior Secured Facilities and the preparation of this Commitment Letter, the Fee Letter, the Senior Credit Documentation and any security arrangements in connection therewith (collectively, the “Expenses”); provided that, you shall not be required to reimburse any of the Expenses in the event the Closing Date does not occur. Notwithstanding any other provision of this Commitment Letter, (i) without in any way qualifying your other obligations hereunder (including with respect to your indemnification obligations above), no Indemnified Person nor the Company or any direct or indirect shareholder thereof shall be liable for any damages arising from the use by others of information or other materials obtained through electronic, telecommunications or other information transmission systems (including IntraLinks or SyndTrak Online), except to the extent such damages have resulted from the willful misconduct, bad faith or gross negligence of such person or any Related Person of such person (as determined by a court of competent jurisdiction in a final and non-appealable decision) or (ii) without in any way qualifying your other obligations hereunder (including with respect to your indemnification obligations above), neither (x) any Indemnified Person, nor (y) you (or any of your subsidiaries or affiliates) or the Target (or any of its subsidiaries or affiliates) shall be liable for any indirect, special, punitive or consequential damages (other than in respect of any such damages paid or required to be paid by an Indemnified Person to a third party and otherwise indemnified under this paragraph 6) in connection with your or its activities related to the Senior Secured Facilities, this Commitment Letter or the Fee Letter. For purposes hereof, a “Related Person” of an Indemnified Person means any of such Indemnified Person (including but not limited to in its capacities as an Agent or a Lead Arranger or any Lender) and their respective controlled affiliates and controlling persons and its or their respective directors, officers, employees, agents acting at the direction of such Indemnified Person, and members thereof.

Notwithstanding the above, (a) you shall not be liable for any settlement of any Proceedings effected without your consent (which consent shall not be unreasonably withheld, delayed or conditioned), but if settled with your written consent or if there is a final and non-appealable judgment for the plaintiff against any Indemnified Person in any such Proceedings, you agree to indemnify and hold harmless each Indemnified Person from and against any and all losses, claims, damages, liabilities and reasonable and documented out-of-pocket expenses by reason of such settlement or judgment in accordance with the preceding paragraph and (b) each Indemnified Person shall be obligated to refund or return any and all amounts paid by you under the preceding paragraph to such Indemnified Person for any losses, claims, damages liabilities or expenses to the extent such Indemnified Person is not entitled to payment of such amounts in accordance with the terms hereof. No Indemnified Person shall, without your prior written consent (which consent shall not be unreasonably withheld), consent to the entry of any judgment in or otherwise seek to terminate any Proceeding referred to herein.

You shall not, without the prior written consent of any Indemnified Person (which consent shall not be unreasonably withheld, delayed or conditioned), effect any settlement of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by such Indemnified Person unless such settlement (a) includes an unconditional release of such Indemnified Person from all liability arising out of such Proceedings and (b) does not include any statement as to, or any admission of, fault, culpability, wrongdoing or a failure to act by or on behalf of such Indemnified Person.

Each Indemnified Person shall give (subject to restrictions pursuant to attorney-client privilege, law, rule or regulation, or any obligation of confidentiality) such information and assistance to you as you may reasonably request in connection with any Proceeding in connection with any losses, claims, damages, liabilities and expenses, unless the Indemnified Person reasonably determines there are conflicts of interest between you and the Indemnified Person.

In case any Proceeding is instituted involving any Indemnified Person for which indemnification is to be sought hereunder by such Indemnified Person, then such Indemnified Person will promptly notify you of the commencement of such Proceeding; provided, that the failure so to notify you will not relieve you from any liability that you may have to such Indemnified Person pursuant to this numbered paragraph 6 or from any liability that you may have to such Indemnified Person other than pursuant to this numbered paragraph 6, except to the extent that you are materially prejudiced by such failure. Notwithstanding the above, following such notification, you may elect in writing to assume the defense of any such Proceeding brought by a third party, and, upon such election, you will not be liable for any legal costs subsequently incurred by such Indemnified Person (other than reasonable costs of investigation and providing evidence) in connection therewith, unless (i) you have failed to provide counsel reasonably satisfactory to such Indemnified Person in a timely manner, (ii) counsel provided by you reasonably determines its representation of such Indemnified Person would present it with a conflict of interest or (iii) the Indemnified Person reasonably determines that there are actual conflicts of interest between you and the Indemnified Person, including situations in which there may be legal defenses available to it which are different from or in addition to those available to you. In connection with any one Proceeding, you will not be responsible for the fees and expenses of more than one separate law firm for all Indemnified Persons plus additional conflicts and local counsel as provided herein.

Your indemnity and reimbursement obligations hereunder will be in addition to any liability which you may otherwise have and will be binding upon and inure to the benefit of any of your successors and assigns and the Indemnified Persons.

7.	Sharing of Information; Absence of Fiduciary Relationship.

You acknowledge that the Agents and their respective affiliates may be providing debt financing, equity capital or other services (including financial advisory services) to other persons in respect of which you may have conflicting interests regarding the transactions described herein and otherwise. Neither the Agents nor any of their affiliates will use confidential information obtained from you by virtue of the transactions contemplated by this Commitment Letter or its other relationships with you in connection with the performance by it of services for other persons, and neither the Agents nor any of their affiliates will furnish any such information to other persons except as permitted under the second paragraph of Section 10 hereof. You also acknowledge that neither the Agents nor any of their affiliates have any obligation to use in connection with the transactions contemplated by this Commitment Letter, or to furnish to you, confidential information obtained by them from other persons.

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

The Agents and their respective affiliates may have economic interests that conflict with those of the Target and you. You agree that the Agents will act under this letter as an independent contractor and

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

8.	Assignability; Amendments; Counterparts.

This Commitment Letter and the commitments hereunder shall not be assignable by any party hereto (other than by you to any Borrower, or, to the extent the Lead Arrangers shall have received all reasonably requested documentation and information about such entities required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, to other entities established in connection with the Transactions and controlled, directly or indirectly, by you, with all your obligations and liabilities hereunder being assumed by the applicable Borrower or such other entities upon the effectiveness of such assignment) without the prior written consent of each other party hereto, not to be unreasonably withheld, delayed or conditioned (and any attempted assignment without such consent shall be null and void), are intended to be solely for the benefit of the parties hereto (and Indemnified Persons to the extent expressly set forth herein), are not intended to confer any benefits upon, or create any rights in favor of, any person other than the parties hereto (and Indemnified Persons to the extent expressly set forth herein) and is not intended to create a fiduciary relationship among the parties hereto. Any and all obligations of, and services to be provided by, the Agents hereunder may be performed and any and all rights of the Agents hereunder may be exercised by or through any of their respective affiliates or branches; provided that with respect to the commitments, any assignments, and the rights and obligations with respect thereto, shall be subject to the limitations set forth in numbered paragraph 3 of this Commitment Letter entitled “Syndication.” This Commitment Letter may not be amended or any provision hereof waived or modified except as otherwise specified herein or by an instrument in writing signed by the Agents and you. This Commitment Letter may be executed in any number of counterparts, each of which shall be an original and all of which, when taken together, shall constitute one agreement. Delivery of an executed counterpart of a signature page of this Commitment Letter by facsimile transmission or other electronic transmission (i.e., a “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart hereof. This commitment letter (including the exhibits hereto) and, together with the Fee Letter, (i) are the only agreements that have been entered into among the parties hereto with respect to the Senior Secured Facilities and (ii) supersede all prior understandings, whether written or oral, among us with respect to the Senior Secured Facilities and set forth the entire understanding of the parties hereto with respect thereto.

9.	Governing Law; Waiver of Jury Trial; Service of Process.

THIS COMMITMENT LETTER AND THE RIGHTS AND DUTIES OF THE PARTIES HEREUNDER AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS COMMITMENT LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN

ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK; PROVIDED THAT THE INTERPRETATION OF ANY PROVISION OF THE PURCHASE AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE DETERMINATION OF THE ACCURACY OF ANY REPRESENTATION OR WARRANTY (AND WHETHER AS A RESULT OF AN INACCURACY OF ANY SUCH REPRESENTATION OR WARRANTY THE COMPANY (OR ANY OF ITS AFFILIATES) HAVE THE RIGHT TO TERMINATE THE COMPANY’S (OR ITS AFFILIATE’S) OBLIGATION TO CONSUMMATE THE ACQUISITION (OR THE RIGHT PURSUANT TO THE PURCHASE AGREEMENT NOT TO CONSUMMATE THE ACQUISITION)) OR THE SATISFACTION OF ANY CONDITION CONTAINED THEREIN (INCLUDING, WITHOUT LIMITATION, ANY DETERMINATION OR DISPUTE CONCERNING A “COMPANY MATERIAL ADVERSE EFFECT” (AS DEFINED IN THE PURCHASE AGREEMENT)) SHALL BE GOVERNED BY THE LAWS OF THE STATE OF DELAWARE (OR FOR ANY MATTER CONCERNING OR IMPLICATING THE BOARDS’ (AS DEFINED IN THE PURCHASE AGREEMENT) FIDUCIARY DUTIES, THE APPLICABLE FIDUCIARY DUTY LAWS OF THE NETHERLANDS) REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS THEREOF, AND SECTION 9.06(a) OF THE PURCHASE AGREEMENT SHALL GOVERN WITH RESPECT THERETO.

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

Each of the parties hereto hereby irrevocably and unconditionally (a) submits, for itself and its property, to the exclusive jurisdiction of any New York State court or federal court of the United States of America sitting in the county of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Commitment Letter, the Fee Letter, the Transactions or the transactions contemplated hereby, or for recognition or enforcement of any judgment, and agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State or, to the extent permitted by law, in such federal court, (b) waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Commitment Letter, the Fee Letter, the Transactions or the transactions contemplated hereby in any such New York State or federal court and (c) waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court. Each of the parties hereto agrees to commence any such action, suit, proceeding or claim either in the United States District Court for the Southern District of New York or in the Supreme Court of the State of New York, New York County located in the Borough of Manhattan.

You irrevocably designate and appoint the US Borrower (the “Process Agent”) as your authorized agent upon which process may be served in any action, suit or proceeding arising out of or relating to this Commitment Letter or the Fee Letter that may be instituted by CS Securities or any other Indemnified Person in any Federal court or New York State court. You hereby agree that service of any process, summons, notice or document by U.S. registered mail addressed to the Process Agent, with written notice of said service to you at the address above, shall be effective service of process for any suit, action or proceeding brought in any such court.

10.	Confidentiality.

This Commitment Letter is entered into on the understanding that the Fee Letter and its respective terms or substance, and, prior to your acceptance hereof, this Commitment Letter and its terms or substance shall not be disclosed, directly or indirectly, to any other person or entity (including other lenders,

underwriters, placement agents, advisors or any similar persons) except (a) to you and to your affiliates, officers, directors, agents, employees, partners, direct and indirect equity holders, members, stockholders, controlling persons, attorneys, accountants and advisors on a confidential basis, (b) if the Initial Lead Arrangers consent to such proposed disclosure (such consent not to be unreasonably withheld, delayed or conditioned), (c) as may be required by the rules, regulations, schedules and forms of the SEC or any other applicable rules of any national securities exchange and/or applicable federal or foreign securities laws in connection with the Transactions or any filings made with the SEC in connection with the Transactions (in which case you agree to use commercially reasonable efforts to inform us promptly thereof to the extent lawfully permitted to do so) (including this Commitment Letter (but not the Fee Letter, other than the aggregate fee amount, unless required by the SEC or such other applicable national securities exchange or applicable federal or foreign securities laws, in which case you shall provide only a version redacted in a customary manner after review by counsel to the Agents, unless an unredacted version is requested or required, in which case an unredacted version may be provided); provided that you agree to use commercially reasonable efforts to ensure that the Fee Letter, if required to be disclosed, shall be treated as confidential by the applicable recipient) or (d) pursuant to the order of any court or administrative agency in any pending legal or administrative proceeding, or otherwise as required by applicable law or legal process or, to the extent requested or required by governmental and/or regulatory authorities, in each case based on the reasonable advice of counsel (in which case, to the extent permitted by law, you agree to use commercially reasonable efforts to inform us promptly thereof); provided that (i) you may disclose this Commitment Letter and the contents hereof to the Target and its affiliates, and its and their respective officers, directors, agents, equity holders, members, stockholders, controlling persons, employees, attorneys, accountants and advisors, on a confidential basis, (ii) you may disclose this Commitment Letter, and the contents hereof, to any potential, prospective or actual equity investors, counterparties to any swap or derivative transaction and lenders or participants or prospective lenders or participants and officers, directors, employees, attorneys, accountants and advisors of any of the foregoing and to rating agencies in connection with obtaining ratings for the Company and the Senior Secured Facilities, (iii) you may disclose the existence thereof and the fees contained in the Fee Letter as part of projections, pro forma information and generic disclosure of aggregate sources and uses related to fee amounts to the extent customary or required in marketing materials, any proxy or other public filing or any prospectus or other offering memorandum, (iv) you may disclose the Fee Letter and the contents thereof to the Target and officers, directors, equity holders, employees, attorneys, accountants and advisors of any of the foregoing, on a confidential basis, (v) the Fee Letter may be disclosed to persons performing customary accounting functions, including accounting for deferred financing costs and (vi) this Commitment Letter and the contents hereof may be disclosed in any syndication of the Senior Secured Facilities or in any proxy statement or other public filing in connection with the Acquisition. You agree that you will permit us to review and approve (such approval not to be unreasonably withheld or delayed) any reference to us or any of our affiliates in connection with the Senior Secured Facilities or the transactions contemplated hereby contained in any press release or similar written public disclosure prior to public release (excluding case studies and other marketing materials).

The Agents and their affiliates will use all information provided to them or such affiliates in connection with the Transactions and any related transaction solely for the purpose of providing the services which are the subject of this Commitment Letter and shall treat confidentially all such information and shall not publish, disclose or otherwise divulge such information; provided that nothing herein shall prevent the Agents from disclosing any such information (a) pursuant to the order of any court or administrative agency or in any pending legal or administrative proceeding, or otherwise as required by applicable law or legal process (in which case the Agents, to the extent permitted by applicable law, agree (except in connection with any request as part of any regulatory audit or examination conducted by accountants or any governmental or regulatory authority exercising examination or regulatory authority) to inform you promptly thereof), (b) upon the request or demand of any regulatory authority having jurisdiction over the Agents or any of its affiliates (in which case the Agents (except in connection with any

request as part of any regulatory audit or examination conducted by accountants or any governmental or regulatory authority exercising examination or regulatory authority), to the extent permitted by law, agree to inform you promptly thereof), (c) to the extent that such information becomes publicly available other than by reason of improper disclosure by the Agents or any of their affiliates or any Related Person of the foregoing in violation of any confidentiality obligations owing to you, the Target or any of your or its affiliates (including those set forth in this paragraph), (d) to the Agents’ affiliates and the Agents’ and such affiliates’ officers, directors, partners, employees, legal counsel, independent auditors and other experts or agents who need to know such information in connection with the Transactions and are made aware and are instructed to comply with the provisions of this paragraph, in each case on a confidential basis, (e) to potential or prospective Lenders, participants, assignees or any direct or indirect contractual counterparties to any swap or derivative transaction relating to the Company and its obligations under the Senior Secured Facilities, subject to the proviso below or (f) subject to your prior approval of the information to be disclosed, information supplied on a customary basis to rating agencies in connection with attempting to obtain a rating as required pursuant to this Commitment Letter and/or the Senior Secured Facilities; provided that (x) the disclosure of any such information to any potential or prospective Lenders, participants, assignees or direct or indirect contractual counterparties referred to above shall be made subject to the acknowledgment and acceptance by such potential or prospective Lender, participant, assignee or direct or indirect contractual counterparty that such information is being disseminated on a confidential basis (on substantially the terms set forth in this paragraph or as is otherwise reasonably acceptable to you, including, without limitation, as set forth in any confidential information memorandum or other marketing materials) in accordance with the standard syndication processes of such Agent or customary market standards for dissemination of such type of information, which shall in any event require “click through” or other affirmative action on the part of the recipient to access such information and (y) no such disclosure shall be made by such Agent or any of its affiliates to any Disqualified Lender. The Agents’ obligations under this paragraph shall automatically terminate and be superseded by the confidentiality provisions in the Senior Credit Documentation upon the initial funding thereunder and shall in any event terminate on July 6, 2018.

11.	Miscellaneous.

The reimbursement (if applicable), compensation (if applicable), indemnification, confidentiality, jurisdiction, governing law and waiver of jury trial provisions contained herein and in the Fee Letter shall remain in full force and effect regardless of whether Senior Credit Documentation shall be executed and delivered and notwithstanding the termination of this Commitment Letter or the Agents’ commitments hereunder; provided that your obligations under this Commitment Letter, other than those relating to confidentiality of the Fee Letter and to the syndication of the Senior Secured Facilities (which shall survive only until the expiration of the Syndication Period), shall automatically terminate and be superseded by the Senior Credit Documentation upon the initial funding thereunder and the payment of all amounts owing at such time hereunder and under the Fee Letter, and you shall be automatically released from all liability in connection therewith at such time.

Each of the parties hereto agrees that this Commitment Letter is a binding and enforceable agreement with respect to the subject matter herein, including the execution and delivery of the Senior Credit Documentation by the parties hereto in a manner consistent with this Commitment Letter (including the Documentation Principles); it being acknowledged and agreed that the commitments provided hereunder are subject only to the satisfaction or waiver by the Initial Lead Arrangers of the conditions set forth in Exhibit C hereto.

We hereby notify you that pursuant to the requirements of the USA PATRIOT Act, Title III of Pub. L. 107-56 (signed into law October 26, 2001) (as amended from time to time, the “PATRIOT Act”), the Agents and each other Lender is required to obtain, verify and record information that identifies each

borrower and each guarantor, which information includes the name, address, tax identification number and other information regarding each borrower and each guarantor that will allow the Agents or such Lender to identify such borrower or guarantor in accordance with the PATRIOT Act. This notice is given in accordance with the requirements of the PATRIOT Act and is effective as to the Agents and each Lender.

If the foregoing correctly sets forth our agreement, please indicate your acceptance of the terms of this Commitment Letter and of the Fee Letter by returning to the Initial Lead Arrangers executed counterparts hereof and of the Fee Letter not later than 11:59 p.m., New York City time, on July 28, 2016. The Agents’ commitments hereunder and agreements contained herein will expire at such time in the event that the Initial Lead Arrangers have not received such executed counterparts in accordance with the immediately preceding sentence. In the event that the initial borrowing in respect of the Senior Secured Facilities does not occur on or before the earliest of (i) the consummation of the Acquisition with or without the funding of the Senior Secured Facilities (but without excusing any breach of this Commitment Letter if any Initial Lender refuses to fund the Senior Secured Facilities), (ii) 11:59 p.m., New York City time, on the third Business Day (as defined in the Purchase Agreement) following the End Date (as defined in the Purchase Agreement and as such date may be extended pursuant to the terms of the Purchase Agreement) if the Acquisition shall not have occurred on or prior to such date and (iii) 11:59 p.m., New York City time, on the third Business Day (as defined in the Purchase Agreement) following the date occurring six months after July 6, 2016, then this Commitment Letter and the commitments and undertakings of the Agents hereunder shall automatically terminate unless each of the Agents shall, in their sole discretion, agree to an extension. You shall have the right to terminate this Commitment Letter and the commitments of the Lenders hereunder (or a portion thereof) at any time upon written notice to them from you, subject to your surviving obligations as set forth in the fourth to last paragraph of this Commitment Letter and in the Fee Letter.

This Commitment Letter amends and restates in its entirety the commitment letter, dated as of July 6, 2016, from CS, CS Securities, Jefferies, UBS and UBSS to you concerning the Senior Secured Facilities and the Transactions (the “Original Commitment Letter”), and such Original Commitment Letter is automatically superseded as of the date hereof without the need for any further notice.

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The Agents are pleased to have been given the opportunity to assist you in connection with this financing.


Very truly yours,

CREDIT SUISSE AG,
CAYMAN ISLANDS BRANCH

By:		/s/ Robert Hetu
Name:		Robert Hetu
Title:		Authorized Signatory

By:		/s/ Nicholas Goss
Name:		Nicholas Goss
Title:		Authorized Signatory

CREDIT SUISSE SECURITIES (USA) LLC

By:		/s/ Ryan Williams
Name:		Ryan Williams
Title:		Director