UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

AMENDMENT No. 3 to

SCHEDULE 13D

Under the Securities Exchange Act of 1934

(Amendment No. 3 to Schedule 13D)

Twitter, Inc.

(Name of Issuer)

Common Stock 

(Title of Class of Securities)

90184L102

(Cusip Number)

John Lutz
Heidi Steele

McDermott Will & Emery LLP

444 West Lake Street, Suite 4000

Chicago, IL 60606

(312) 372-2000  

(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)

April 20, 2022

(Date of Event Which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. x

*The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the act (however, see the Notes).

SCHEDULE 13D

CUSIP No. 90184L102

¹ Based on 800,641,166 shares of Common Stock outstanding as of February 10, 2022 as reported in the Issuer’s Annual Report on Form 10-K for the year ended December 31, 2021.

SCHEDULE 13D

Explanatory Note: This statement on Schedule 13D amends the Schedule 13D of Elon Musk (the “Reporting Person”) that was filed with the Securities and Exchange Commission on April 5, 2022, as amended on April 11, 2022 and April 14, 2022 (collectively, the “Schedule 13D”), with respect to the Common Stock, par value $0.000005 per share (the “Common Stock”), of Twitter, Inc. (the “Issuer” or “Twitter”). This amendment to the Schedule 13D constitutes Amendment No. 3 to the Schedule 13D. Capitalized terms used but not defined herein have the meanings given to such terms in the Schedule 13D. Except as set forth herein, the Schedule 13D is unmodified.

Item 4.     Purpose of Transaction.

Item 4 of the Schedule 13D is amended and restated in its entirety to read as follows:

On April 13, 2022, the Reporting Person delivered a letter to the Issuer (the “Letter”) which contained a non-binding proposal (the “Proposal”) to acquire all of the outstanding Common Stock of Twitter not owned by the Reporting Person for all cash consideration valuing the Common Stock at $54.20 per share (the “Proposed Transaction”). The foregoing description is qualified in its entirety by reference to the full text of the Letter, a copy of which is attached hereto as Exhibit B and is incorporated herein by reference.

The Proposal was (and remains) non-binding and, once negotiated and agreed upon, would be conditioned upon, among other things, the: (i) receipt of any required governmental approvals; (ii) confirmatory legal, regulatory, accounting and tax due diligence; and (iii) negotiation and execution of definitive agreements providing for the Proposed Transaction. At the time of delivery, the Proposal was also subject to the completion of financing and business due diligence, but it is no longer subject to financing as a result of the Reporting Person’s receipt of the financing commitments described below and is no longer subject to business due diligence.

The Reporting Person is seeking to negotiate a definitive agreement for the acquisition of Twitter by the Reporting Person and is prepared to begin such negotiations immediately.

On April 15, 2022, Twitter adopted a rights agreement, dated as of April 15, 2022 (as it may be amended from time to time, the “Rights Agreement”), by and between Twitter and Computershare Trust Company, N.A., as rights agent, and declared a dividend of one right issued pursuant to the Rights Agreement for each outstanding share of Common Stock (the “Poison Pill”).

Twitter has not responded to the Proposal. Given the lack of response by Twitter, the Reporting Person is exploring whether to commence a tender offer to acquire all of the outstanding shares of Common Stock (together with the associated rights issued pursuant to the Rights Agreement (the “Rights” and, together with the Common Stock, the “Shares”)) that are issued and outstanding (and not held by the Reporting Person) at a price of $54.20 per share, net to the seller in cash, without interest and less any required withholding taxes, subject to certain conditions (the “Potential Offer”), but has not determined whether to do so at this time.

To finance the Proposed Transaction or a Potential Offer, entities related to the Reporting Person have received commitment letters committing to provide an aggregate of approximately $46.5 billion as follows:

(i) A debt commitment letter, dated April 20, 2022 (the “Debt Commitment Letter”), from Morgan Stanley Senior Funding, Inc. and certain other financial institutions party thereto as commitment parties (collectively, the “Commitment Parties”) pursuant to which the Commitment Parties have committed to provide $13 billion in financing to the Reporting Person and related entities as follows: (a) a senior secured term loan facility in an aggregate principal amount of $6.5 billion, (b) a senior secured revolving facility in an aggregate committed amount of $500 million, (c) a senior secured bridge loan facility in an aggregate principal amount of up to $3 billion and (d) a senior unsecured bridge loan facility in an aggregate principal amount of up to $3 billion ((a) – (d) collectively, the “Debt Facilities”);

(ii) A separate debt commitment letter, dated April 20, 2022 (the “Margin Loan Commitment Letter”), from Morgan Stanley Senior Funding, Inc. and certain other financial institutions party thereto as commitment parties (collectively, the “Margin Loan Commitment Parties”) pursuant to which the Margin Loan Commitment Parties have committed to provide $12.5 billion in margin loans (the “Margin Loan Facility”), the proceeds of which will be distributed or otherwise made available to Purchaser; and

(iii) An equity commitment letter, dated April 20, 2022 (the “Equity Commitment Letter”), from the Reporting Person pursuant to which the Reporting Person has committed to provide equity financing for the Proposed Transaction or the Potential Offer sufficient to pay all amounts payable in connection with the Offer and the Merger (plus related fees and expenses), net of the amounts to be funded pursuant to the Debt Commitment Letter and the Margin Loan Commitment Letter, which is currently expected to be approximately $21 billion (the “Equity Financing”).

Funding of the Debt Facilities, the Margin Loan Facility and the Equity Financing are each subject to the satisfaction of certain limited conditions precedent as further described in the Debt Commitment Letter, the Margin Loan Commitment Letter and the Equity Commitment Letter, which are customary for acquisition financings (including, with respect to the Margin Loan Facility a condition which requires that the borrower thereunder satisfy a maximum loan to value ratio of 20%, which is expected be satisfied by the contributions of a portion of Mr. Musk’s unencumbered shares in Tesla, Inc. to such borrower).

The foregoing descriptions of the Debt Commitment Letter, the Margin Loan Commitment Letter and the Equity Commitment Letter are qualified in their entirety by reference to the full text of the Debt Commitment Letter, the Margin Loan Commitment Letter and the Equity Commitment Letter, copies of which are attached hereto as Exhibit C, Exhibit D and Exhibit E, respectively, and are incorporated herein by reference.

There can be no assurance that a definitive agreement with respect to the Proposed Transaction will be executed or, if executed, whether the Proposed Transaction will be consummated. There is also no certainty as to whether, or when, the Issuer may respond to the Letter, or as to the time table for execution of any definitive agreement. The Reporting Person reserves the right to withdraw the Proposal or modify its terms at any time including with respect to the amount or form of consideration. Neither the Letter nor this Schedule 13D is meant to be, nor should be construed as, an offer to buy or the solicitation of an offer to sell any of the Issuer’s securities. This Schedule 13D is neither an offer to purchase nor a solicitation of an offer to sell Shares of Twitter.

The Reporting Person has not commenced, or determined to commence, any tender offer for Shares of Twitter. The Reporting Person may, directly or indirectly, take such additional steps as he may deem appropriate to further the Proposal or the Potential Offer.

The Reporting Person intends to review his investment in the Issuer on a continuing basis. Depending on the factors discussed herein, the Reporting Person may, from time to time, acquire additional shares of the Common Stock and/or retain and/or sell all or a portion of the shares of Common Stock held by the Reporting Person in the open market or in privately negotiated transactions, and/or may distribute the Common Stock held by the Reporting Person to other entities in accordance with applicable law. Any actions the Reporting Person might undertake will be dependent upon the Reporting Person’s evaluation of numerous factors, including, among other things, the outcome of any discussions referenced in this Schedule 13D, the price levels of the Common Stock, compliance with applicable laws (including the Hart-Scott Rodino Act), general market and economic conditions, ongoing evaluation of the Issuer’s business, financial condition, operations and prospects, the relative attractiveness of alternative business and investment opportunities, investor’s need for liquidity, and other future developments.

From time to time, the Reporting Person may engage in discussions with the Board and/or members of the Issuer’s management team concerning, including, without limitation, the Proposal, potential business combinations and strategic alternatives, the business, operations, capital structure, governance, management, strategy of the Issuer and other matters concerning the Issuer. The Reporting Person may express his views to the Board and/or members of the Issuer’s management team and/or the public through social media or other channels with respect to the Issuer’s business, products and service offerings.

Except as set forth above, the Reporting Person has no present plans or intentions which would result in or relate to any of the transactions described in subparagraphs (a) through (j) of Item 4 of Schedule 13D. However, the Reporting Person reserves the right to change his plans at any time, as he deems appropriate, and in light of his ongoing evaluation of numerous factors, including, among other things, the price levels of the Common Stock, general market and economic conditions, ongoing evaluation of the Issuer’s business, financial condition, operations and prospects, the relative attractiveness of alternative business and investment opportunities, Reporting Person’s need for liquidity, and other future developments.

If the Proposal of the Potential Offer to Purchase is completed, the Common Stock (and associated Rights) would become eligible for termination of its registration pursuant to Section 12(g)(4) of the Securities Exchange Act of 1934, as amended, and would be delisted from the New York Stock Exchange.

Item 6.     Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.

Item 6 of the Schedule 13D is amended and restated in its entirety to read as follows:

On April 4, 2022, the Reporting Person and the Issuer entered the Agreement described in Item 4 above. The Agreement is filed as Exhibit A hereto and incorporated by herein reference.

On April 13, 2022, the Reporting Person submitted the Letter. The Letter is attached hereto as Exhibit B and is incorporated herein by reference.

On April 20, 2022, entities related to the Reporting Person received the Debt Commitment Letter, the Margin Loan Commitment Letter and the Equity Commitment Letter, which are attached hereto as Exhibit C, Exhibit D, and Exhibit E, respectively, and incorporated herein by reference.

The information set forth in Item 4 is incorporated herein by reference.

Item 7.     Material to be Filed as Exhibits.

SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Date: April 21, 2022

EXHIBIT C

Execution Version

CONFIDENTIAL

April 20, 2022

X Holdings I, Inc.

X Holdings II, Inc.

2110 Ranch Road

620 S. #341886,

Austin, TX 78734

Attn: Elon R. Musk

Project X
Commitment Letter

Ladies and Gentlemen:

You have advised each of Morgan Stanley Senior Funding , Inc. (acting through such of affiliates or branches as it deems appropriate, “MSSF”), Bank of America, N.A. (“Bank of America”), BofA Securities, Inc. (or any of its designated affiliates, “BofA Securities”), Barclays Bank PLC (“Barclays”), MUFG Bank, Ltd. (“MUFG”), BNP Paribas (“BNP Paribas”), BNP Paribas Securities Corp. (“BNPP Securities” and, together with BNP Paribas, “BNPP”), Mizuho Bank, Ltd. (“Mizuho”) and Societe Generale (“SocGen” and, together with MSSF, Bank of America, BofA Securities, Barclays, MUFG, BNPP and Mizuho, the “Commitment Parties”, “we” or “us”) that X Holdings, II, Inc., a Delaware corporation (“Bidco” or “you”), and X Holdings, I, Inc., a Delaware corporation (“Holdings” or “you”), formed at the direction of Elon R. Musk and his affiliates (collectively, the “Investors”), intend to acquire (the “Acquisition”), directly or indirectly, all of the outstanding equity interests of, or, directly or indirectly merge with, Twitter, Inc. (the “Company”). You have further advised us that, in connection with the foregoing, you intend to consummate the other Transactions described in the Transaction Description attached hereto as Exhibit A (the “Transaction Description”). Capitalized terms used but not defined herein shall have the meanings assigned to them in the Transaction Description and in the Summaries of Principal Terms and Conditions attached hereto as Exhibit B (the “Bank Facilities Term Sheet”), Exhibit C (the “Secured Bridge Term Sheet”) and Exhibit D (the “Unsecured Bridge Term Sheet”; together with the Bank Facilities Term Sheet and the Secured Bridge Term Sheet, the “Term Sheets”; this commitment letter, the Transaction Description, the Term Sheets and the Summary of Conditions attached hereto as Exhibit E, collectively, the “Commitment Letter”).

You have further advised us that, in connection therewith, it is intended that the financing for the Transactions will include (i) the senior secured term loan facility described in the Bank Facilities Term Sheet, in an aggregate principal amount of $6,500.0 million plus at the Borrower’s election, an amount sufficient to fund any OID required to be funded due to the exercise of market flex provisions in the Fee Letter (as defined below) (the “Term Loan Facility”), (ii) a senior secured revolving credit facility described in the Bank Facilities Term Sheet, in an aggregate principal amount of $500 million (the “Revolving Facility” and, together with the Term Loan Facility, the “Bank Facilities”), (iii) either (x) up to $3,000.0 million in aggregate principal amount of senior secured notes (the “Senior Secured Notes”) in a Rule 144A private placement or (y) if all or any portion of the Senior Secured Notes are not issued by the Borrower on or prior to the Closing Date (as defined below), up to $3,000.0 million of senior secured increasing rate loans (the “Secured Bridge Loans”), under the senior secured credit facility (the “Secured Bridge Facility” and, together with the Bank Facilities, the “Senior Secured Facilities”) described in the Secured Bridge Term Sheet and (iv) either (x) up to $3,000 million in aggregate principal amount of senior unsecured notes (the “Unsecured Notes” and, together with the Senior Secured Notes, the “Notes”) in a Rule 144A private placement or (y) if all or any portion of the Unsecured Notes are not issued by the Borrower on or prior to the Closing Date, up to $3,000 million of senior unsecured increasing rate loans (the “Unsecured Bridge Loans” and, together with the Secured Bridge Loans, the “Bridge Loans”), under the senior unsecured credit facility (the “Unsecured Bridge Facility”) described in the Unsecured Bridge Term Sheet. The Bank Facilities, Secured Bridge Facility and the Unsecured Bridge Facility are collectively referred to herein as the “Facilities”.

1.            Commitments.

In connection with the foregoing, (a) each of MSSF, Bank of America, Barclays, MUFG, BNP Paribas, Mizuho and SocGen, respectively, is pleased to advise you of its several and not joint commitment to, and hereby agrees to, provide 26.9231%, 20.7692%, 20.7692%, 20.7692%, 5%, 3.6539% and 2.1154%, respectively, of the Term Loan Facility, (b) each of MSSF, Bank of America, Barclays, MUFG, BNP Paribas, Mizuho and SocGen, respectively, is pleased to advise you of its several and not joint commitment to, and hereby agrees to, provide 26.9231%, 20.7692%, 20.7692%, 20.7692%, 5%, 3.6539% and 2.1154%, respectively, of the Revolving Facility, (c) each of MSSF, Bank of America, Barclays, MUFG, BNP Paribas, Mizuho and SocGen, respectively, is pleased to advise you of its several and not joint commitment to, and hereby agrees to, provide 26.9231%, 20.7692%, 20.7692%, 20.7692%, 5%, 3.6539% and 2.1154%, respectively, of the Secured Bridge Facility and (d) each of MSSF, Bank of America, Barclays, MUFG, BNP Paribas, Mizuho and SocGen, respectively, is pleased to advise you of its several and not joint commitment to, and hereby agrees to, provide 26.9231%, 20.7692%, 20.7692%, 20.7692%, 5%, 3.6539% and 2.1154%, respectively, of the Unsecured Bridge Facility, in each case subject only to the satisfaction (or waiver in writing by the Commitment Parties) of the applicable conditions set forth in Exhibit E hereto. MSSF, Bank of America, Barclays, MUFG, BNP Paribas, Mizuho and SocGen are referred to herein as the “Initial Lenders” and each individually as an “Initial Lender”, with the entities named in clause (a) above being herein called the “Initial Term Lenders”, with the entities named in clause (b) above being herein called the “Initial Revolving Lenders” (and, together with the Initial Term Lenders, the “Initial Bank Lenders”), with the entities named in clause (c) above being herein called the “Initial Secured Bridge Lenders” and with the entities named in clause (d) above being herein called the “Initial Unsecured Bridge Lenders”.

2.            Titles and Roles.

It is agreed that (i) each of MSSF, BofA Securities, Barclays, MUFG, BNPP Securities, Mizuho and SocGen will act as a lead arranger and joint bookrunner for the Term Loan Facility and the Revolving Facility (in such capacity, a “Bank Lead Arranger” and collectively, the “Bank Lead Arrangers”), (ii) each of MSSF, BofA Securities, Barclays, MUFG, BNPP Securities, Mizuho and SocGen will act as a lead arranger and joint bookrunner for the Secured Bridge Facility (in such capacity, an “Secured Bridge Lead Arranger” and collectively, the “Secured Bridge Lead Arrangers”), (iii) each of MSSF, BofA Securities, Barclays, MUFG, BNPP Securities, Mizuho and SocGen will act as a lead arranger and joint bookrunner for the Unsecured Bridge Facility (each in such capacity, a “Unsecured Bridge Lead Arranger” and collectively, the “Unsecured Bridge Lead Arrangers” and, together with the Bank Lead Arrangers and the Secured Bridge Lead Arrangers, the “Lead Arrangers”), (iv) MSSF will act as joint physical bookrunner for the Bank Facilities, (v) MSSF will act as administrative agent and collateral agent for the Term Loan Facility and the Revolving Facility (in such capacity, the “Bank Administrative Agent”), (vi) MSSF will act as administrative agent and collateral agent for the Secured Bridge Facility (in such capacity, the “Secured Bridge Administrative Agent”) and (vii) MSSF will act as administrative agent for the Unsecured Bridge Facility (in such capacity, the “Unsecured Bridge Administrative Agent” and, together with the Bank Administrative Agent and the Secured Bridge Administrative Agent, the “Administrative Agents”). It is further agreed that (i) MSSF, shall have “left” placement in any and all marketing materials or other documentation used in connection with the Bank Facilities, (ii) MSSF shall have “left” placement in any and all marketing materials or other documentation used in connection with the Secured Bridge Facility and (iii) MSSF shall have “left” placement in any and all marketing materials or other documentation used in connection with the Unsecured Bridge Facility.

Except as set forth in the immediately preceding paragraph, no other titles will be awarded and no compensation (other than that expressly contemplated by this Commitment Letter and the Fee Letter referred to below) will be paid to any Lender in order to obtain its commitment to participate in the Facilities unless you and the Commitment Parties shall so agree. The respective commitments of the Initial Lenders shall be several and not joint.

3.            Syndication.

The applicable Lead Arrangers reserve the right, prior to or after the execution of the applicable Facilities Documentation (as defined in Exhibit E) to syndicate all or a portion of the Initial Lenders’ respective commitments hereunder to a group of banks, financial institutions and other institutional lenders identified by the Lead Arrangers in consultation with you and reasonably acceptable to them and you with respect to the identity of such lenders (your consent not to be unreasonably withheld or delayed) including, without limitation, any relationship lenders designated by you and reasonably acceptable to the Lead Arrangers (such banks, financial institutions and other institutional lenders, together with the Initial Lenders, the “Lenders”); provided that, notwithstanding each Lead Arranger’s right to syndicate the Facilities and receive commitments with respect thereto, it is agreed that (i) syndication of, or receipt of commitments or participations in respect of, all or any portion of an Initial Lender’s commitments hereunder prior to the date of the consummation of the Acquisition and the date of the initial funding under the Facilities (the date of such funding, the “Closing Date”) shall not be a condition to such Initial Lender’s commitments or the funding of the Facilities on the Closing Date; (ii) no Initial Lender shall be relieved, released or novated from its obligations hereunder (including its obligation to fund the Facilities on the Closing Date) in connection with any syndication, assignment or participation of the Facilities, including its commitments in respect thereof, until after the initial funding of the Facilities has occurred; (iii) no assignment or novation (except as contemplated in the immediately preceding clause (ii)) shall become effective with respect to all or any portion of any Initial Lender’s commitments in respect of the Facilities until after the initial funding of the Facilities; (iv) unless you otherwise agree in writing, each Commitment Party shall retain exclusive control over all rights and obligations with respect to its commitments in respect of the Facilities, including all rights with respect to consents, modifications, supplements, waivers and amendments, until the Closing Date has occurred; and (v) we will not syndicate our commitments to certain banks, financial institutions and other institutional lenders and investors (a) that have been separately identified by name in writing by you or the Investors to us prior to the date hereof (or, if after such date and prior to the launch of general syndication, that are reasonably acceptable to the Lead Arrangers holding (or their affiliates holding) a majority of the aggregate amount of outstanding financing commitments in respect of the Facilities on the date hereof (the “Majority Lead Arrangers”)), (b) those persons who are competitors of the Company and its subsidiaries that are separately identified by name in writing by you or the Investors to us from time to time, and (c) in the case of each of clauses (a) and (b) above, any of their affiliates (other than bona fide debt fund affiliates) that are either (x) identified by name in writing by you or the Investors from time to time or (y) clearly identifiable on the basis of such affiliate’s name (clauses (a), (b) and (c) above, collectively “Disqualified Lenders”); provided that designations of Disqualified Lenders may not apply retroactively to disqualify any entity that has previously acquired an assignment or participation in any Facility.

Without limiting your obligations to assist with syndication efforts as set forth herein, it is understood that the Initial Lenders’ commitments hereunder are not conditioned upon the syndication of, or receipt of commitments or participations in respect of, the Facilities and in no event shall the commencement or successful completion of syndication of the Facilities constitute a condition to the availability of the Facilities on the Closing Date. The Lead Arrangers intend to commence syndication efforts promptly upon the execution by each party of this Commitment Letter and as part of their syndication efforts, it is their intent to have Lenders commit to the Facilities prior to the Closing Date (subject to the limitations set forth in the preceding paragraph). You agree actively to assist the Lead Arrangers, until the earlier to occur of (i) a Successful Syndication (as defined in the Fee Letter) and (ii) 30 days after the Closing Date (such earlier date, the “Syndication Date”), in completing a timely syndication that is reasonably satisfactory to them and you. Such assistance shall include, without limitation, (a) your using commercially reasonable efforts to ensure that any syndication efforts benefit materially from your existing lending and investment banking relationships of the Investors (and, to the extent the Acquisition is consummated pursuant to a Merger Transaction (as defined below) and in any event, after the Closing Date, the existing lending and investment banking relationships and the existing lending and investment banking relationships of the Company), (b) direct contact between senior management, representatives and advisors of you and the Investors, on the one hand, and the proposed Lenders, on the other hand (and, to the extent the Acquisition is consummated pursuant to a Merger Transaction and in any event, after the Closing Date, your using commercially reasonable efforts to ensure such contact between senior management, representatives and advisors of the Company, on the one hand, and the proposed Lenders, on the other hand, to the extent not in contravention of the Acquisition Agreement), in all such cases at times and places mutually agreed upon (which meeting may, if mutually agreed, be virtual), (c) your and the Investors’ assistance, and (to the extent the Acquisition is consummated pursuant to a Merger Transaction and in any event, after the Closing Date) your using commercially reasonable efforts to cause the Company to assist in the preparation of customary confidential information memoranda for the Facilities (any such memorandum, a “Confidential Information Memorandum”) and other marketing materials to be used in connection with the syndications (including a customary lender presentation, in each case, by using commercially reasonable efforts to provide information and other customary materials reasonably requested in connection with such Confidential Information Memorandum no less than 15 business days prior to the Closing Date), in each case to the extent not in contravention of the Acquisition Agreement, (d) to the extent requested by the Lead Arrangers, using your commercially reasonable efforts to procure a public corporate credit rating and a public corporate family rating in respect of the Borrower from each of Standard & Poor’s Ratings Services (“S&P”) and Moody’s Investors Service, Inc. (“Moody’s”), respectively, and public ratings for each of the Facilities and the Notes from each of S&P and Moody’s, in each case, prior to the launch of general syndication, (e) the hosting, with the Lead Arrangers, of no more than two meetings of prospective Lenders at times and locations to be mutually agreed upon with the Principal attending and participating in at least one of the aforesaid meetings (which meeting shall not exceed two (2) hours in duration and may be virtual) and (f) your ensuring (and to the extent the Acquisition is consummated pursuant to a Merger Transaction and in any event, after the Closing Date, with respect to the Company and its subsidiaries your using commercially reasonable efforts to ensure, to the extent not in contravention of the Acquisition Agreement) that there shall be no competing issues of debt securities or commercial bank or other credit facilities (other than the Facilities) of you, Holdings, the Borrower, the Company or any of their respective subsidiaries being offered, placed or arranged (other than the Notes (or the issuance of any “demand securities” issued in lieu of the Notes or other indebtedness issued in lieu of the Notes that has otherwise been consented to by the Majority Lead Arrangers (such consent not to be unreasonably withheld or delayed) or any debt disclosed to us on or prior to the date hereof) if such debt securities or commercial bank or other credit facilities would, in the reasonable judgment of the Lead Arrangers, materially impair the primary syndication of the Facilities without the prior consent of the Lead Arrangers (such consent not to be unreasonably withheld or delayed) (it is understood and agreed that any deferred purchase price obligations, ordinary course working capital and revolving facilities and ordinary course capital lease, purchase money and equipment financings will not be deemed to materially impair the primary syndication of the Facilities (and any refinancing, replacement, extension or renewal of existing debt of the Company or any amendment to any of the foregoing)). Notwithstanding anything to the contrary contained in this Commitment Letter or the Fee Letter or any other letter agreement or undertaking concerning the financing of the Transactions to the contrary, neither the obtaining of the ratings referenced above nor the compliance with any of the other provisions set forth in clauses (a) through (f) above or any other provision of this paragraph shall constitute a condition to the commitments hereunder or the funding of the Facilities on the Closing Date or at any time thereafter and the only financial statements required to be delivered as a condition to the commitments hereunder shall be those set forth in paragraph 6 of Exhibit E.

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

You shall use commercially reasonable efforts with respect to the Bridge Facilities, (a) to provide that each Investment Bank (as defined in Exhibit E) receives (i) a customary preliminary offering memorandum containing (A) all customary information, including financial statements (other than pro forma financial statements which are described below), business and other financial data of the type and form that are customarily included in private placements pursuant to Rule 144A promulgated under the Securities Act (including information required by Regulation S-X and Regulation S-K under the Securities Act, which is understood not to include (I) a “description of notes,” “plan of distribution” and information customarily provided by the Investment Banks or their counsel or advisors in the preparation of an offering memorandum for an offering of high yield unsecured debt securities in a private placement under Rule 144A of the Securities Act, including any risk factors relating to, or any description of, all or any component of the financing contemplated thereby or by this Commitment Letter, (II) segment reporting or consolidating financial statements, separate subsidiary financial statements and other financial statements and data that would be required by Sections 3-05, 3-09, 3-10, 3-16, 13-01 and 13-02 of Regulation S-X, (III) management’s CD&A and other information required by Item 402 of Regulation S-K and information regarding executive compensation and related party disclosure related to SEC Release Nos. 33-8732A, 34-54302A and IC-27444A, and (IV) other customary exceptions) and (B) pro forma financial statements of the type and form that are customarily included in private placements pursuant to Rule 144A promulgated under the Securities Act to be prepared in a manner consistent with Regulation S-X (and in the case of pro forma financial statements for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period presented, as if Regulation S-X was applicable to such financial statements) and (ii) all other financial data that would be reasonably necessary for the Investment Banks to receive customary “comfort” letters from the independent accountants of the Company in connection with the offering of the Notes (and the Borrower shall have made all commercially reasonable efforts to cause such accountants to provide the Investment Banks with drafts of such “comfort” letters (which shall provide customary “negative assurance” comfort), which such accountants would be prepared to issue upon completion of customary procedures) and (b) to afford the Investment Banks a period (the “Notes Marketing Period”) of at least 15 consecutive business days upon receipt of the information described above in clause (a)(i) (the “Notes Required Information”) to seek to place the Notes with qualified purchasers thereof; provided that (i) July 4 and 5, 2022 shall not constitute business days for purposes of the Notes Marketing Period and (ii) if the Notes Marketing Period has not ended by August 19, 2022 then the Notes Marketing Period shall not begin before September 6, 2022. If the Borrower shall in good faith reasonably believe that the Notes Required Information has been delivered to the Lead Arrangers, the Borrower may deliver to the Lead Arrangers a written notice to that effect (stating when it believes the delivery of the Notes Required Information to the Lead Arrangers was completed), in which case the Borrower shall be deemed to have complied with such obligation to furnish the Notes Required Information and the Lead Arrangers shall be deemed to have received the Notes Required Information, unless the Lead Arrangers in good faith reasonably believe that the Borrower has not completed delivery of the Notes Required Information and not later than 5:00 p.m. (New York City time) two (2) business days after the delivery of such notice by the Borrower, delivers a written notice to the Borrower to that effect (stating with specificity which such Notes Required Information the Borrower has not delivered); provided that notwithstanding the foregoing, the delivery of the Notes Required Information shall be satisfied at any time at which (and so long as) the Lead Arrangers shall have actually received the Notes Required Information. Notwithstanding anything to the contrary contained in this Commitment Letter or the Fee Letter or any other letter agreement or undertaking concerning the financing of the Transactions to the contrary, neither the occurrence of the Notes Marketing Period referred to above or any other provision of this paragraph shall constitute a condition to the commitments hereunder or the funding of the Facilities on the Closing Date or at any time thereafter and the only financial statements required to be delivered as a condition to the commitments hereunder shall be those set forth in paragraph 6 of Exhibit E.

4.            Information.

You hereby represent and warrant that (a) all written information and written data (such information and data, other than (i) the Projections and (ii) information of a general economic or industry specific nature, the “Information”) (in the case of Information regarding the Company and its subsidiaries and its and their respective businesses, to your knowledge) that has been or will be made available to the Commitment Parties by or on behalf of you or any of your representatives, taken as a whole, is or will be, when furnished, correct in all material respects and does not or will not, when furnished, and when taken as a whole and together with the Company’s public filings with the Securities and Exchange Commission (other than any portions thereof under the “risk factors” section or other cautionary language), contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein not materially misleading in light of the circumstances under which such statements are made (after giving effect to all supplements and updates thereto from time to time) and (b) the Projections that have been or will be made available to the Commitment Parties by or on behalf of you or any of your representatives have been or will be, at the time furnished, prepared in good faith based upon assumptions that you believe to be reasonable at the time made and at the time the related Projections are so furnished to the Commitment Parties, it being understood that the Projections are predictions as to future events and are not to be viewed as facts, that the Projections are subject to significant uncertainties and contingencies, many of which are beyond your control, that no assurance can be given that any particular Projections will be realized and that actual results during the period or periods covered by any such Projections may differ significantly from the projected results and such differences may be material. You agree that if, at any time prior to the later of the Closing Date and the Syndication Date, you become aware that any of the representations and warranties in the preceding sentence would be incorrect in any material respect if the Information and Projections were being furnished, and such representations and warranties were being made, at such time, then you will (or, with respect to the Information and Projections relating to the Company and its subsidiaries, will use commercially reasonable efforts to) promptly supplement the Information and the Projections so that such representations and warranties will be correct in all material respects under those circumstances. Notwithstanding anything to the contrary herein, the accuracy of the foregoing representations shall not be a condition to the Commitment Parties’ obligations hereunder or the funding of the Facilities on the Closing Date. In arranging and syndicating the Facilities, the Commitment Parties will be entitled to use and rely primarily on the Information and the Projections without responsibility for independent verification of the veracity or completeness thereof.

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

If reasonably requested by the Lead Arrangers you will use commercially reasonable efforts to assist us in preparing a customary additional version of the Confidential Information Memorandum to be used in connection with the syndication of the Facilities that includes only Public Side Information with respect to you, Holdings, the Borrower, the Company, your or their respective subsidiaries or the respective securities of any of the foregoing to be used by Public Siders. The Public Side Information will be substantially consistent with the information that would be included in any offering memorandum for the Notes (including customary “risk factors”) and in any filings that would be required to be made by you, the Company, or any of your or its respective subsidiaries with the Securities and Exchange Commission if you, the Company or any of your or its respective subsidiaries were public reporting companies. It is understood that in connection with your assistance described above, customary authorization letters will be included in any Confidential Information Memorandum that authorize the distribution of the Confidential Information Memorandum to prospective Lenders that contain the representations set forth in the second preceding paragraph (and represent that the additional version of the Confidential Information Memorandum contains only Public Side Information with respect to you, Holdings, the Borrower, the Company your or its respective subsidiaries and the respective securities of any of the foregoing (other than as set forth in the following paragraph)) and that the Confidential Information Memorandum shall exculpate you, the Investors, the Company and your and their respective subsidiaries and affiliates and us and our affiliates with respect to any liability related to the use or misuse of the contents of the Confidential Information Memorandum or any related marketing material by the recipients thereof; provided that (x) the Company shall be required to deliver authorization letters only to the extent the Acquisition is to be consummated pursuant to a Merger Transaction at the time such authorization letters are to be delivered and in any event, after the Closing Date, and to the extent not in contravention of the Acquisition Agreement and (y) any representations as to the Company in the case of authorization letters to be delivered by the Company shall not be qualified by knowledge.

You agree to use commercially reasonable efforts to identify that portion of the Information that may be distributed to the Public Siders as “PUBLIC”. You agree that, subject to the confidentiality and other provisions of this Commitment Letter, the Lead Arrangers on your behalf may distribute the following documents to all prospective lenders in the form provided to you and to your counsel a reasonable time prior to their distribution, unless you or your counsel advise the Lead Arrangers in writing (including by email) within a reasonable time prior to their intended distribution that such material should only be distributed to Private Siders: (a) the Term Sheets, (b) interim and final drafts of the Facilities Documentation, (c) administrative materials prepared by the Lead Arrangers for prospective Lenders (such as a lender meeting invitation, allocations and funding and closing memoranda) and (d) changes in the terms of the Facilities. If you advise us that any of the foregoing items should be distributed only to Private Siders, then the Lead Arrangers will not distribute such materials to Public Siders without your consent.

5.            Fees.

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

6.            Conditions Precedent.

The several commitments of the Initial Lenders hereunder to fund the Facilities on the Closing Date and the several agreements of the Lead Arrangers to perform the services described herein are subject solely to the applicable conditions set forth in Exhibit E hereto, and upon satisfaction (or waiver in writing by the Commitment Parties) of such conditions, the initial funding of the Facilities shall occur, it being understood that there are no conditions (implied or otherwise) to the commitments hereunder and there will be no conditions (implied or otherwise) under the Facilities Documentation to the funding of the Facilities on the Closing Date, including compliance with the terms of this Commitment Letter, the Fee Letter or the Facilities Documentation, other than those that are expressly stated in Exhibit E hereto.

Notwithstanding anything to the contrary in this Commitment Letter (including each of the exhibits attached hereto), the Fee Letter, the Facilities Documentation or any other letter agreement or other undertaking concerning the financing of the Transactions to the contrary, (i) the only representations and warranties the making of which shall be a condition to the availability of the Facilities on the Closing Date shall be (A) solely to the extent the Acquisition is consummated pursuant to a Merger Transaction, such of the representations and warranties made by the Company with respect to the Company, its subsidiaries and their respective businesses in the Acquisition Agreement as are material to the interests of the Initial Lenders, but only to the extent that you (or one of your affiliates) have the right (taking into account any applicable cure provisions) to terminate your (or its) obligations under the Acquisition Agreement (as defined in Exhibit E) (or otherwise decline to consummate the Acquisition without any liability) as a result of a breach of such representations and warranties in the Acquisition Agreement (to such extent, the “Company Representations”) and (B) the Specified Representations (as defined below) and (ii) the terms of the Facilities Documentation shall be in a form such that they do not impair the availability of the Facilities on the Closing Date if the applicable conditions set forth in Exhibit E hereto are satisfied (or waived by the Commitment Parties) (it being understood and agreed that, to the extent any security interest in any Collateral (as defined in Exhibit B) is not or cannot be provided and/or perfected on the Closing Date (other than pledge and perfection of the security interests (1) in the certificated equity securities, if any, of the Borrower and any material wholly-owned U.S. domestic subsidiaries of the Borrower (to the extent required by the Term Sheets (provided that such certificated equity securities, will be required to be delivered on the Closing Date only to the extent the Acquisition is consummated pursuant to a Merger Transaction and received from the Company after your use of commercially reasonable efforts to do so)) and (2)(a) in the case of Holdings and the Borrower, in other assets with respect to which a lien may be perfected by the filing of a financing statement under the Uniform Commercial Code and (b) solely to the extent the Acquisition is consummated pursuant to a Merger Transaction, in the case of the Company and the other Guarantors, in other assets with respect to which a lien may be perfected by the filing of a financing statement under the Uniform Commercial Code) after your use of commercially reasonable efforts to do so or without undue burden or expense, then the provision and/or perfection of a security interest in such Collateral shall not constitute a condition precedent to the availability and funding of the applicable Facilities on the Closing Date but instead shall be required to be delivered and/or perfected after the Closing Date pursuant to arrangements and timing to be mutually agreed (but, in any event, not later than (x) to the extent the Acquisition is consummated pursuant to a Tender Offer (as defined below), in the case of assets of the Company and the other Guarantors with respect to which a lien may be perfected by the filing of a financing statement under the Uniform Commercial Code, five (5) business days after the Closing Date and (y) otherwise 90 days after the Closing Date or such longer period as may be agreed by the Bank Administrative Agent, in its sole discretion, and the Borrower acting reasonably without any requirement for Lender consent. Notwithstanding anything to the contrary contained herein, to the extent the Acquisition is consummated pursuant to a Tender Offer, the Company and the other Guarantors shall not be required to become a Guarantor or grant a lien in any of their assets until five (5) business days after the Closing Date (or such longer period as may be agreed by the Bank Administrative Agent, in its sole discretion without any requirement for Lender consent); provided that, for the avoidance of doubt, the Borrower shall, on the Closing Date, pledge the shares of the Company acquired on the Closing Date. For purposes hereof, “Specified Representations” means the representations and warranties made by Holdings and the Borrower (and, to the extent the Acquisition is consummated pursuant to a Merger Transaction, the other Guarantors) to be set forth in the Facilities Documentation relating to the corporate or other organizational existence of Holdings and the Borrower (and, if applicable, the other Guarantors) power and authority, due authorization, execution, delivery and enforceability, in each case related to the borrowing under, guaranteeing under, granting of security interests in the Collateral to, entry into and performance of, the Facilities Documentation; the incurrence of the loans and the provision of the Guarantees, in each case under the Facilities, and the granting of the security interests in the Collateral to secure the Senior Secured Facilities, not conflicting with Holdings’ and the Borrower’s (and, if applicable, the other Guarantors’) constitutional documents (after giving effect to the Acquisition); solvency as of the Closing Date (after giving effect to the Transactions) of the Borrower and its restricted subsidiaries on a consolidated basis (solvency to be defined in a manner consistent with the manner in which solvency is defined in the solvency certificate to be delivered pursuant to paragraph 11 of Exhibit E); creation, validity and perfection of security interests in the Collateral to be perfected on the Closing Date (subject to permitted liens and the foregoing provisions of this paragraph relating to Collateral); Federal Reserve margin regulations; the use of loan proceeds not violating OFAC or the FCPA, and other anti-terrorism, anti-bribery, anti-corruption and anti-money laundering laws; the PATRIOT Act; and the Investment Company Act. This paragraph, and the provisions herein, shall be referred to as the “Funding Conditions Provisions”. Without limiting the conditions precedent provided herein to funding the consummation of the Acquisition with the proceeds of the Facilities, the Lead Arrangers will cooperate with you as reasonably requested in coordinating the timing and procedures for the funding of the Facilities in a manner consistent with the Tender Offer Documents and/or the Acquisition Agreement, as applicable.

7.            Indemnification; Expenses.

You agree (a) to indemnify and hold harmless each of the Commitment Parties, their respective affiliates and the respective officers, directors, employees, agents, advisors, controlling persons, members and the successors and permitted assigns (other than Lenders that are not Initial Lenders) of each of the foregoing (each an “Indemnified Person”) from and against any and all reasonable and documented out-of-pocket expenses, losses, claims, damages and liabilities of any kind or nature, joint or several, to which any such Indemnified Person may become subject, to the extent arising out of or in connection with any claim, litigation, investigation or proceeding, actual or threatened, relating to this Commitment Letter (including the Term Sheets), the Fee Letter, the Transactions, the Facilities or any related transaction contemplated hereby (any of the foregoing, a “Proceeding”), regardless of whether any such Indemnified Person is a party thereto and whether such Proceeding is brought by you, your affiliates, equity holders, security holders, creditors or any other person and whether or not the Transactions are consummated, and to reimburse each such Indemnified Person upon written demand (with reasonable supporting detail if you shall so request in writing) for any reasonable and documented out-of-pocket legal fees and expenses incurred in connection with investigating or defending any of the foregoing by one firm of counsel for all Indemnified Persons, taken as a whole, and, if necessary, by a single firm of local counsel in each appropriate jurisdiction for all such Indemnified Persons, taken as a whole (and, in the case of an actual or perceived conflict of interest where the Indemnified Person affected by such conflict notifies you of the existence of such conflict and thereafter, after receipt of your written consent (which consent shall not be unreasonably withheld or delayed), retains its own counsel, by another firm of counsel for such affected Indemnified Person); provided that the foregoing indemnity will not, as to any Indemnified Person, apply to out-of-pocket expenses, losses, claims, damages, liabilities or related expenses to the extent that they have resulted from (i) the willful misconduct, bad faith, gross negligence or material breach of this Commitment Letter of such Indemnified Person or any of such Indemnified Person’s affiliates or any of its or their respective officers, directors, employees, agents, controlling persons, members, advisors or the successors and permitted assigns (other than Lenders that are not Initial Lenders) of any of the foregoing (as determined by a court of competent jurisdiction in a final and non-appealable decision) or (ii) in the case of a Proceeding initiated by you or one of your permitted assignees against the relevant Indemnified Person, a material breach of the obligations of such Indemnified Person or any of such Indemnified Person’s affiliates or of any of its or their respective officers, directors, employees, agents, advisors or their representatives of any of the foregoing under this Commitment Letter, the Fee Letter or the Facilities Documentation (as determined by a court of competent jurisdiction in a final and non-appealable decision) or (iii) any Proceeding not arising from any act or omission by you or any of your affiliates that is brought by an Indemnified Person against any other Indemnified Person (other than disputes involving claims against any Lead Arranger or Administrative Agent in its capacity as such), and (b) to reimburse each Commitment Party and each Indemnified Person from time to time, upon presentation of a summary statement (with reasonable supporting detail if you shall so request in writing), for all reasonable and documented out-of-pocket expenses (including but not limited to expenses of each Commitment Party’s due diligence investigation, consultants’ fees (to the extent any such consultant has been retained with your prior written consent (such consent not to be unreasonably withheld or delayed)), syndication expenses, travel expenses and reasonable fees, disbursements and other charges of one counsel to all Lead Arrangers and, if necessary, of a single firm of local counsel to all Lead Arrangers in each appropriate jurisdiction (other than any allocated costs of in-house counsel) or otherwise retained with your consent (such consent not to be unreasonably withheld or delayed)), in each case incurred in connection with the Facilities and the preparation of this Commitment Letter, the Fee Letter, the Facilities Documentation and any security arrangements in connection therewith (collectively, the “Expenses”); provided that, except as set forth in the Fee Letter, you shall not be required to reimburse any of the Expenses in the event the Closing Date does not occur.

Notwithstanding any other provision of this Commitment Letter, (i) no Protected Person (as defined below) shall be liable for any damages arising from the use by others of information or other materials obtained through internet, electronic, telecommunications or other information transmission systems (including IntraLinks or SyndTrak Online), except to the extent that such damages have resulted from the willful misconduct, bad faith, gross negligence or material breach of this Commitment Letter of such Protected Person or any of such Protected Person’s affiliates or any of its or their officers, directors, employees, agents, advisors, controlling persons, members or the successors and permitted assigns (other than Lenders that are not Initial Lenders) of any of the foregoing (as determined by a court of competent jurisdiction in a final and non-appealable decision) and (ii) none of we, you, the Company, the Investors (or any of their respective affiliates), any subsidiaries of the foregoing or any of their respective affiliates or the respective officers, directors, employees, agents, advisors, controlling persons, members and the successors and permitted assigns (other than Lenders that are not Initial Lenders) of any of the foregoing (each, a “Protected Person”) shall be liable for any indirect, special, punitive or consequential damages (including, without limitation, any loss of profits, business or anticipated savings) in connection with this Commitment Letter, the Fee Letter, the Transactions (including the Facilities and the use of proceeds thereunder), or with respect to any activities related to the Facilities, including the preparation of this Commitment Letter, the Fee Letter and the Facilities Documentation; provided that nothing in this paragraph shall limit your indemnity and reimbursement obligations to the extent that such indirect, special, punitive or consequential damages are included in any claim by a third party unaffiliated with any of the Commitment Parties with respect to which the applicable Protected Person is entitled to indemnification under the preceding paragraph.

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

You shall not, without the prior written consent of any Indemnified Person affected thereby (which consent shall not be unreasonably withheld or delayed) (it being understood that the withholding of consent due to non-satisfaction of any conditions described in clauses (i) and (ii) of this sentence shall be deemed reasonable), effect any settlement of any pending or threatened proceedings in respect of which indemnity could have been sought hereunder by such Indemnified Person unless such settlement (i) includes an unconditional release of such Indemnified Person in form and substance reasonably satisfactory to such Indemnified Person from all liability or claims that are the subject matter of such proceedings and (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnified Person.

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

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

Each of the parties hereto further acknowledges that MSSF or one of its affiliates has been retained as a financial advisor (in such capacity, the “Financial Advisor”) in connection with the Acquisition. The parties hereto agree not to assert any claim that could be alleged based on any actual or potential conflicts of interest that might be asserted to arise or result from, on the one hand, the engagement of the Financial Advisor and, on the other hand, the relationship of the Financial Advisor and its affiliates with the other parties hereto as described and referred to herein.

You acknowledge that we may receive a future benefit on matters unrelated to this matter,  including, without limitation, discount, credit or other accommodation, from any of such counsel based on the fees such counsel may receive on account of their relationship with us, including without limitation, fees paid pursuant hereto (it being understood and agreed that, in no event, shall the expenses include  items in respect of any unrelated matter or otherwise be increased as a result of such counsel’s  representation of us on another matter or on account or our relationship with such counsel).

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

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

9.            Assignments; Amendments; Governing Law, Etc.

This Commitment Letter and any claim, controversy or dispute arising under or related to this Commitment Letter and the commitments hereunder shall not be assignable by any party hereto (other than, (i) occurring as a matter of law pursuant to, or otherwise substantially simultaneously with (and subject to the consummation of), the Acquisition, in each case to one or more of the Company and/or any other domestic subsidiary of the Company and (ii) by you to the Borrower, and/or to other U.S. domestic entities already existing or established in connection with the Transactions and wholly-owned, directly or indirectly, immediately after giving effect to the Transactions by the Investors, with all obligations and liabilities of Holdings hereunder being assumed by the Borrower and/or such other entities upon the effectiveness of such assignment)) without the prior written consent of each other party hereto (such consent not to be unreasonably withheld or delayed) (and any attempted assignment without such consent shall be null and void). This Commitment Letter and the commitments hereunder are intended to be solely for the benefit of the parties hereto (and Indemnified Persons) and are not intended to confer any benefits upon, or create any rights in favor of, any person other than the parties hereto (and Indemnified Persons to the extent expressly set forth herein). Subject to the limitations otherwise set forth herein, each Commitment Party reserves the right to employ the services of its respective affiliates or branches in providing services contemplated hereby and to allocate, in whole or in part, to their affiliates or branches certain fees payable to such Commitment Party in such manner as such Commitment Party and its respective affiliates or branches may agree in their sole discretion and, to the extent so employed, such affiliates and branches shall be entitled to the benefits and protections afforded to, and subject to the provisions governing the conduct of, such Commitment Party hereunder. This Commitment Letter may not be amended or any provision hereof waived or modified except by an instrument in writing signed by each of the Commitment Parties and you. This Commitment Letter may be executed in any number of counterparts, each of which shall be an original and all of which, when taken together, shall constitute one agreement. Delivery of an executed counterpart of a signature page of this Commitment Letter by facsimile transmission or other electronic transmission (i.e., a “pdf” or “tif”), including by electronic signatures or electronic records, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, to the extent and as provided for in any applicable law, shall be effective as delivery of a manually executed counterpart hereof. This Commitment Letter (including the exhibits hereto) and the Fee Letter (i) are the only agreements that have been entered into among the parties hereto with respect to the Facilities and (ii) supersede all prior understandings, whether written or oral, among us with respect to the Facilities and sets forth the entire understanding of the parties hereto with respect thereto.

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

THIS COMMITMENT LETTER AND THE RIGHTS AND DUTIES OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK; PROVIDED THAT, NOTWITHSTANDING THE FOREGOING TO THE CONTRARY, IT IS UNDERSTOOD AND AGREED THAT (A) TO THE EXTENT THE ACQUISITION IS CONSUMMATED PURSUANT TO THE ACQUISITION AGREEMENT, THE LAWS OF THE STATE SET FORTH IN THE ACQUISITION AGREEMENT SHALL GOVERN IN DETERMINING (I) WHETHER A MATERIAL ADVERSE EFFECT UNDER THE ACQUISITION AGREEMENT HAS OCCURRED, (II) THE ACCURACY OF ANY COMPANY REPRESENTATION AND WHETHER YOU (OR ANY OF YOUR SUBSIDIARIES OR AFFILIATES) HAVE THE RIGHT TO TERMINATE YOUR (OR THEIR) OBLIGATIONS UNDER THE ACQUISITION AGREEMENT OR DECLINE TO CONSUMMATE THE ACQUISITION AS A RESULT OF A BREACH OF SUCH REPRESENTATIONS IN THE ACQUISITION AGREEMENT AND (III) WHETHER THE ACQUISITION HAS BEEN CONSUMMATED IN ACCORDANCE WITH THE TERMS OF THE ACQUISITION AGREEMENT AND (B) TO THE EXTENT THE ACQUISITION IS CONSUMMATED PURSUANT TO THE TENDER OFFER, THE FEDERAL SECURITIES LAWS OF THE UNITED STATES SHALL GOVERN IN DETERMINING WHETHER THE INITIAL OFFER TO PURCHASE HAS BEEN CONSUMMATED IN ACCORDANCE WITH THE TERMS AND CONDITIONS THEREOF.

10.            WAIVER OF JURY TRIAL.

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

11.            Jurisdiction.

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

12.            Confidentiality.

This Commitment Letter is delivered to you on the understanding that none of the Fee Letter and its terms or substance, or, prior to your acceptance hereof, this Commitment Letter and its terms or substance or the activities of any Commitment Party pursuant hereto or to the Fee Letter, shall be disclosed, directly or indirectly, to any other person or entity (including other lenders, underwriters, placement agents, advisors or any similar persons) except (a) to the Investor Group (as defined below), and to your and any of the Investor Group’s subsidiaries and affiliates and your and their respective officers, directors, employees, agents, attorneys, accountants, advisors and controlling persons who are informed of the confidential nature thereof, on a confidential and need-to-know basis, (b) if the Commitment Parties consent to such proposed disclosure (such consent not to be unreasonably conditioned, withheld or delayed) or (c) pursuant to the order of any court or administrative agency in any pending legal or administrative proceeding, or otherwise as required by applicable law, rule or regulation or compulsory legal process or to the extent requested or required by governmental and/or regulatory authorities, in each case based on the reasonable advice of your legal counsel (in which case, you agree, to the extent practicable and not prohibited by applicable law, rule or regulation, to inform us promptly thereof); provided that (i) you may disclose this Commitment Letter, (but not the Fee Letter) and the contents hereof to the Company and their officers, directors, employees, agents, attorneys, accountants, advisors and controlling persons, on a confidential and need-to-know basis, (ii) you may disclose the Commitment Letter (but not the Fee Letter) and its contents in any offering memoranda or private placement memoranda relating to the Notes, in any syndication or other marketing materials in connection with the Facilities (including any Confidential Information Memorandum and other customary marketing materials) or in connection with any public or regulatory filing requirement relating to the Transactions, (iii) you may disclose the Term Sheet and the other exhibits and annexes to the Commitment Letter (but not the Fee Letter, other than the existence thereof) and the contents thereof, to potential Lenders and their affiliates involved in the related commitments, to equity investors and to rating agencies in connection with obtaining ratings for the Borrower and the Facilities, (iv) you may disclose the aggregate fees contained in the Fee Letter as part of Projections, pro forma information or a generic disclosure of aggregate sources and uses related to fee amounts related to the Transactions to the extent customary or required in offering and marketing materials for the Facilities or in any public or regulatory filing requirement relating to the Transactions, (v) to the extent the amounts of fees and other economic terms of the market flex provisions set forth therein have been redacted in a customary manner, you may disclose the Fee Letter and the contents thereof to the Company, the Sellers and their officers, directors, employees, agents, attorneys, accountants, advisors and controlling persons, on a confidential and need-to-know basis, (vi) you may disclose this Commitment Letter (but not the Fee Letter) in any tender offer or proxy relating to the Transactions and (vii) you may disclose the Fee Letter and the contents thereof to any prospective equity investor and its officers, directors, employees, attorneys, accountants and advisors, in each case on a confidential basis. 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 Facilities or the transactions contemplated hereby contained in any press release (or other written public statement that references any Commitment Party or affiliate thereof by name) prior to public release. The confidentiality provisions set forth in this paragraph shall survive the termination of this Commitment Letter and expire and shall be of no further effect after the second anniversary of the date hereof.

Each Commitment Party and its affiliates will use all non-public information provided to any of them or such affiliates by or on behalf of you hereunder or in connection with the Transactions solely for the purpose of providing the services which are the subject of this Commitment Letter and negotiating, evaluating and consummating the transactions contemplated hereby and shall treat confidentially all such information and shall not publish, disclose or otherwise divulge such information; provided that nothing herein shall prevent such Commitment Party and its affiliates from disclosing any such information (a) pursuant to the order of any court or administrative agency or in any pending legal, judicial or administrative proceeding, or otherwise as required by applicable law, rule or regulation or compulsory legal process (in which case such Commitment Party agrees (except with respect to any audit or examination conducted by bank accountants or any governmental, bank regulatory or self-regulatory authority exercising examination or regulatory authority), to the extent practicable and not prohibited by applicable law, rule or regulation, to inform you promptly thereof prior to disclosure), (b) upon the request or demand of any regulatory authority (including any self-regulatory authority) having jurisdiction over such Commitment Party or any of its affiliates (in which case such Commitment Party agrees (except with respect to any audit or examination conducted by bank accountants or any governmental, bank regulatory or self-regulatory authority exercising examination or regulatory authority) to the extent practicable and not prohibited by applicable law, rule or regulation, to inform you promptly thereof prior to disclosure), (c) to the extent that such information becomes publicly available other than by reason of improper disclosure by such Commitment Party or any of its affiliates or any related parties thereto in violation of any confidentiality obligations owing to you, the Investors, the Company or any of your or their respective subsidiaries or affiliates or related parties (including those set forth in this paragraph), (d) to the extent that such information is received by such Commitment Party from a third party that is not, to such Commitment Party’s knowledge, subject to confidentiality obligations owing to you, the Investors, the Company or any of your or their respective subsidiaries or affiliates or related parties, (e) to the extent that such information was already in our possession prior to any duty or other undertaking of confidentiality or is independently developed by the Commitment Parties without the use of such information, (f) to other Commitment Parties and such Commitment Party’s affiliates and to its and their respective officers, directors, partners, employees, legal counsel, independent auditors and other experts, advisors or agents who need to know such information in connection with the Transactions and who are informed of the confidential nature of such information and who are subject to customary confidentiality obligations of professional practice or who agree to be bound by the terms of this paragraph (or language substantially similar to this paragraph) (with each such Commitment Party, to the extent within its control, responsible for such person’s compliance with this paragraph), (g) to potential or prospective Lenders, hedge providers, participants or assignees, in each case who agree (pursuant to customary syndication practice) to be bound by the terms of this paragraph (or language substantially similar to this paragraph); provided that (i) the disclosure of any such information to any Lenders, hedge providers or prospective Lenders, hedge providers or participants or prospective participants referred to above shall be made subject to the acknowledgment and acceptance by such Lender, hedge provider or prospective Lender or participant or prospective participant that such information is being disseminated on a confidential basis (on substantially the terms set forth in this paragraph or as is otherwise reasonably acceptable to you and each Commitment Party, including, without limitation, as agreed in any Information materials or other marketing materials) in accordance with the standard syndication processes of such Commitment Party or customary market standards for dissemination of such type of information, which shall in any event require “click through” or other affirmative actions on the part of recipient to access such information and (ii) no such disclosure shall be made by such Commitment Party to any person that is at such time a Disqualified Lender, (h) for purposes of establishing a “due diligence” defense or (i) to rating agencies in connection with obtaining ratings for the Borrower, the Facilities and the Notes. In addition, each Commitment Party may disclose the existence of the Facilities to market data collectors, similar service providers to the lending industry and service providers to the Commitment Parties in connection with the administration and management of the Facilities. In the event that the Facilities are funded, the Commitment Parties’ and their respective affiliates’, if any, obligations under this paragraph, shall terminate automatically and be superseded by the confidentiality provisions in the Facilities Documentation upon the initial funding thereunder to the extent that such provisions are binding on such Commitment Parties. Otherwise, the confidentiality provisions set forth in this paragraph shall survive the termination of this Commitment Letter and expire and shall be of no further effect after the second anniversary of the date hereof.

13.            Surviving Provisions.

The syndication, information, reimbursement (if applicable), compensation (if applicable in accordance with the terms hereof and the Fee Letter), indemnification, confidentiality, jurisdiction, governing law, absence of fiduciary relationship and waiver of jury trial provisions contained herein and in the Fee Letter shall remain in full force and effect regardless of whether Facilities Documentation shall be executed and delivered and notwithstanding the termination of this Commitment Letter or the Commitment Parties’ commitments hereunder; provided that your obligations under this Commitment Letter, other than those relating to confidentiality, information and the syndication of the Facilities, shall automatically terminate and be superseded by the corresponding provisions of the Facilities Documentation upon the initial funding thereunder, and you shall be automatically released from all liability in connection therewith at such time. You may terminate this Commitment Letter and/or the Initial Lenders’ commitments (on a pro rata basis amongst the Initial Lenders) with respect to the Facilities (or any portion thereof as selected by you) hereunder at any time subject to the provisions of the preceding sentence.

14.            PATRIOT ACT Notification.

We hereby notify you that pursuant to the requirements of the USA PATRIOT Act, Title III of Pub. L. 107-56 (signed into law October 26, 2001, as amended from time to time, the “PATRIOT Act”), each of us and each of the Lenders may be required to obtain, verify and record information that identifies the Borrower and the Guarantors, which information may include their names, addresses, tax identification numbers, a certification regarding beneficial ownership as required by 31 C.F.R. § 1010.230 (such certification, the “Beneficial Ownership Certification”) and other information that will allow each of us and the Lenders to identify the Borrower and Guarantors in accordance with the PATRIOT Act. This notice is given in accordance with the requirements of the PATRIOT Act and is effective as to each of us and each Lender.

15.            Acceptance and Termination.

If the foregoing correctly sets forth our agreement, please indicate your acceptance of the terms of this Commitment Letter and of the Fee Letter by returning to the Bank Administrative Agent on behalf of the Commitment Parties executed counterparts hereof and of the Fee Letter not later than 11:59 p.m., New York City time, on April 25, 2022. The Initial Lenders’ respective commitments hereunder and the obligations and agreements of the Commitment Parties contained herein will expire at such time in the event that the Bank Administrative Agent has not received such executed counterparts in accordance with the immediately preceding sentence. If you do so execute and deliver to us this Commitment Letter and the Fee Letter by all of the parties hereto and thereto, this Commitment Letter and the commitments and undertakings of each of the Commitment Parties shall remain effective and available for you until the earliest to occur of (i) the termination of your obligations under the Tender Offer unless the Acquisition Agreement shall have been entered into on or prior to such date or otherwise contemporaneously therewith, (ii) after execution of the Acquisition Agreement and prior to the consummation of the Acquisition, the termination in writing of the Acquisition Agreement by you in accordance with its terms in the event that the Acquisition is not consummated, (iii) the consummation of the Acquisition with or without the funding of the Facilities, (iv) 11:59 p.m. New York City time on the date that is 75 days after the date of this Commitment Letter, if as of such time, an Acquisition Agreement has not been executed, (v) after the execution of the Acquisition Agreement, 11:59 p.m. New York City time on the “outside date” (or similar defined term) set forth in the Acquisition Agreement and (vi) 11:59 p.m., New York City time, on October 20, 2022. Upon the occurrence of any of the events referred to in the preceding sentence, this Commitment Letter and the commitments of the Commitment Parties hereunder and the agreement of the Commitment Parties to provide the services described herein shall automatically terminate unless each of the Commitment Parties shall, in its sole discretion, agree to an extension; provided that the termination of any such commitment pursuant to such paragraph does not prejudice our or your rights and remedies in respect of any breach of this Commitment Letter

[Remainder of this page intentionally left blank]

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

Accepted and agreed to as of
the date first above written:

Project X
Transaction Description

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

X Holdings II, Inc., a newly created corporation organized under the laws of Delaware (“Bidco”), formed at the direction of the Investors, together with certain other investors (which may include management) arranged by and designated by the Investors (collectively with the Investors, the “Investor Group”), intends to directly or indirectly, acquire all of the outstanding equity interests of, or, directly or indirectly merge with, Twitter, Inc., a corporation organized under the laws of Delaware (the “Company”).

In connection with the foregoing, it is intended that:

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

 Project X
$6,500.0 million Term Loan Facility

$500.0 million Revolving Facility

Summary of Principal Terms and Conditions

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

ANNEX I to

EXHIBIT B

EXHIBIT C

Project X
$3,000.0 million Senior Secured Increasing Rate Secured Bridge Loans
Summary of Principal Terms and Conditions

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

ANNEX I to               

EXHIBIT C

Secured Extended Term Loans

Secured Exchange Notes

CONFIDENTIAL

EXHIBIT D

Project X
$3,000.0 million Senior Unsecured Increasing Rate Unsecured Bridge Loans
Summary of Principal Terms and Conditions

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

ANNEX I to

EXHIBIT D

Unsecured Extended Term Loans

ANNEX II to

EXHIBIT D

Unsecured Exchange Notes

Project X
Summary of Conditions

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

1.            In the case of the Tender Offer, the Tender Offer shall have been immediately prior to or, substantially concurrently with, the initial borrowing under the Facilities, consummated in all material respects in accordance with the terms of the Initial Offer to Purchase, without giving effect to any modifications, amendments or express waivers or consents by you (or one of your affiliates) thereto that are materially adverse to the Initial Lenders in their capacities as such without the written consent of the Majority Lead Arrangers (not to be unreasonably withheld, conditioned or delayed); provided that any modification, amendment, waiver or consent by you (or one of your affiliates) with respect to the Poison Pill Condition (as defined in the Tender Offer as of the date hereof), the Minimum Tender Condition (as defined in the Tender Offer as of the date hereof) or the Merger Agreement Condition (as defined in the Tender Offer as in effect on the date hereof) shall be deemed materially adverse to the Initial Lenders in their capacities as such without the express written consent of the Lead Arrangers who (together with their respective affiliates) hold at least 66.67% of the aggregate commitments in respect of the Facilities. In the case of a Merger Transaction (i) the Acquisition Agreement shall be reasonably acceptable to the Majority Lead Arrangers (it being understood that any such agreement shall be deemed to be reasonable to the Majority Lead Arrangers if (x) the terms of the Acquisition set forth therein are generally consistent with the Initial Offer to Purchase without material modifications that are materially adverse to the Initial Lenders and (y) contain customary “Xerox” lender protection provisions) and (ii) the Acquisition shall have been immediately prior to or, substantially concurrently with the initial borrowing under the Facilities, consummated in all material respects in accordance with the terms of the Acquisition Agreement, without giving effect to any modifications, amendments or express waivers or consents by you (or one of your affiliates (other than the Company to the extent the Company would be considered an affiliate)) thereto that are materially adverse to the Initial Lenders in their capacities as such without the consent of the Majority Lead Arrangers (not to be unreasonably withheld, conditioned or delayed). It being understood that for purposes of the condition set forth in this paragraph 1, (x) any increase in consideration payable with respect to the Acquisition shall not be materially adverse to the Initial Lenders so long as such increase is not funded with additional indebtedness (other than amounts available to be drawn on the Closing Date from the Facilities) and (y) notwithstanding the proviso above any modification, amendment, waiver or consent by you (or one of your affiliates) with respect to the Minimum Tender Condition shall not be deemed to be materially adverse to the Initial Lenders in their capacities as such if you (or one of your affiliates) acquire at least ninety percent (90)% of the outstanding shares of the Company pursuant to the Tender Offer and consummate the Acquisition as a “short form” second-step merger pursuant to Section 253 of the DGCL as described in the Initial Offer to Purchase.

2.            The Equity Contribution shall have been made, or substantially concurrently with the borrowings under the Term Loan Facility, the Bridge Facilities and/or the issuance of Notes shall be made, in at least the amount set forth in Exhibit A to the Commitment Letter.

3.            To the extent the Acquisition is consummated pursuant to a Merger Transaction, since the date of the Acquisition Agreement, there shall not have been any “company material adverse effect” (or defined term of similar effect in the Acquisition Agreement).

4.            Substantially simultaneously with the initial borrowing under the Facilities, the Refinancing shall be consummated.

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

6.            To the extent publicly filed by the Company, the Lead Arrangers shall have received (a) the audited consolidated balance sheets as of the three most recently completed fiscal years ended at least 90 days prior to the Closing Date and the related audited consolidated statements of operations and comprehensive income and cash flows of the Company and its subsidiaries for the three most recently completed fiscal years ended at least 90 days before the Closing Date; and (b) the unaudited consolidated balance sheets and the related unaudited consolidated statements of operations and comprehensive income and cash flows of the Company and its subsidiaries as of and for each subsequent fiscal quarter (other than the fourth fiscal quarter of the Company’s fiscal year) ended at least 45 days before the Closing Date (and the same period in the prior fiscal year). The Lead Arrangers hereby acknowledge that (x) the public filing by the Company with the Securities and Exchange Commission of any required audited financial statements on Form 10-K or required unaudited financial statements on Form 10-Q, in each case, will satisfy the requirements under clause (a) or (b), as applicable, of this paragraph and (y) they have received of the audited financial statements referred to in clause (a) above for the 2019, 2020 and 2021 fiscal years.

7.            Investment banks (the “Investment Banks”) reasonably satisfactory to the Lead Arrangers shall have been engaged to privately place the Notes.

8.            The Administrative Agent and the Lead Arrangers shall have received at least three business days prior to the Closing Date all documentation and other information about the Borrower (and, to the extent the Acquisition is consummated pursuant to a Merger Transaction, the other Guarantors) as shall have been reasonably requested in writing by the Administrative Agent or the Lead Arrangers at least ten calendar days prior to the Closing Date and as required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act and (b) if the Borrower qualifies as a “legal entity” customer under 31 C.F.R. § 1010.230 and the Administrative Agent has provided the Borrower the name of each requesting Lender and its electronic delivery requirements at least 10 calendar days prior to the Closing Date, the Administrative Agent and each such Lender requesting a Beneficial Ownership Certification (which request is made through the Administrative Agent) will have received, at least three business days prior to the Closing Date, the Beneficial Ownership Certification in relation to the Borrower.

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

10.            Subject in all respects to the Funding Conditions Provisions, (a) the Bank Facilities Documentation and, if applicable, the Secured Bridge Facility Documentation and the Unsecured Bridge Facility Documentation (collectively, the “Facilities Documentation”) (which shall, in each case, be in accordance with the terms of the Commitment Letter and the Term Sheets and the Documentation Principles, the Secured Bridge Documentation Principles or the Unsecured Bridge Documentation Principles, as applicable) shall have been executed and delivered by the Credit Parties and (b) customary legal opinions, customary officer’s closing certificates (including incumbency certificates of officers), organizational documents, customary evidence of authorization and good standing certificates in jurisdictions of formation/organization, in each case with respect to the Borrower and the Guarantors (to the extent applicable), customary requests for borrowing and a solvency certificate (as of the Closing Date after giving effect to the Transactions and substantially in the form of Annex E-I attached hereto, certified by a senior authorized financial officer of the Borrower) shall have been delivered to the Lead Arrangers.

***

Form of Solvency Certificate

Date: _____

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

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

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

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

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

EXHIBIT D

EXECUTION VERSION

CONFIDENTIAL

April 20, 2022

X Holdings III, LLC

c/o Elon R. Musk

2110 Ranch Road 620 S. #341886
Austin, TX 78734

Project X
Commitment Letter

Ladies and Gentlemen:

You have advised Morgan Stanley Senior Funding, Inc. (“MSSF”), Bank of America, N.A. (“BOFA”), Barclays Bank plc (“Barclays”), MUFG Bank, Ltd. (“MUFG”), Credit Suisse AG, Cayman Islands Branch (“CS”), BNP Paribas (“BNPP”), Citibank, N.A. (“Citi”), Deutsche Bank AG, London Branch (“DB”), Mizuho Bank, Ltd. (“Mizuho”), Royal Bank of Canada (“RBC”), Société Générale (“SG”), and Canadian Imperial Bank of Commerce (“CIBC” and, together with MSSF, BOFA, Barclays, MUFG, CS, BNPP, Citi, DB, Mizuho, RBC, and SG, “we,” “us” or a “Commitment Party” and, together with any other commitment party that becomes a party hereto pursuant to Section 2 hereof collectively, the “Commitment Parties”) that X Holdings III, LLC, a Delaware limited liability company (the “Borrower” or “you”), formed at the direction of, and to be controlled directly or indirectly by or under common control with, certain funds, partnerships and other entities advised, managed or controlled by the Principal (the “Guarantor” and, together with certain of his affiliates, collectively, the “Sponsor”), intends to obtain funds such that Sponsor may acquire, directly or indirectly, all of the outstanding equity interests of (the “Common Stock Interests”) or, directly or indirectly, merge with, Twitter, Inc. (the “Issuer”) (the “Acquisition”). It is intended that a portion of the financing for the Acquisition may, at your election, include a margin loan facility (the “Facility”) in an aggregate principal amount of up to $12,500.0 million (as may be decreased (but not increased) by the Borrower as set forth herein, the “Maximum Facility Amount”). Capitalized terms used but not defined herein shall have the meanings assigned to them in the Summaries of Principal Terms and Conditions attached hereto as Exhibit A (the “Term Sheet” and this commitment letter, the Term Sheet and the Conditions Annex (as defined below), collectively, the “Commitment Letter”). All references to “dollars” or “$” in this Commitment Letter and the Fee Letter (as defined below) are references to U.S. dollars.

In connection with the Acquisition, each of MSSF, BOFA, Barclays, MUFG, CS, BNPP, Citi, DB, Mizuho, RBC, SG, and CIBC (together with any other initial lender that becomes a party hereto pursuant to Section 2 hereof, the “Initial Lenders” and, each, an “Initial Lender”) is pleased to advise you of its commitment to provide you with the principal amount of the Facility and commitments as set forth opposite its name on Schedule I hereto (each a “Funding Commitment”) and subject only to the satisfaction (or waiver) of the conditions set forth on Exhibit B (the “Conditions Annex”); provided that you may, at your election, decrease the Funding Commitments of the Initial Lenders on a pro rata basis in accordance with this Commitment Letter. The aggregate Funding Commitments of the Initial Lenders may not exceed the Maximum Facility Amount at any time.

Each Initial Lender’s Funding Commitment will be effective from the date all Initial Lenders have signed this Commitment Letter (such date, the “Lender Effective Date”). Your obligations under this Commitment Letter will not become effective until the date you return to the Joint Bookrunners (or their counsel) an executed counterpart hereof (such date, the “Countersign Effective Date”).

Subject to the occurrence of the Termination Date (as defined in Section 10), commencing on the Lender Effective Date, the Initial Lenders’ Funding Commitments will remain available to the Borrower until 11:59 p.m., New York City time, on May 4, 2022 (the “Countersign Expiration Time”); provided that commencing on the Countersign Effective Date, the Initial Lender’s Funding Commitments will remain available to the Borrower during the Availability Period (as defined below); provided, further, that, if you have not returned to the Joint Bookrunners (or their counsel) an executed counterpart of this Commitment Letter by the Countersign Expiration Time, each Initial Lender’s respective Funding Commitment will expire at such time.

On or prior to the Countersign Effective Date or at any time thereafter, you or the Guarantor may elect, by written notice to the Joint Bookrunners (which may be electronic notice), to decrease (but not increase) the Maximum Facility Amount. Any such decrease to the Maximum Facility Amount will be applied to the Initial Lenders’ respective Funding Commitments on a pro rata basis.

“Availability Period” means the period from, and including, the Countersign Effective Date until, but excluding, the day that is one calendar month following the Countersign Effective Date (the “Commitment Expiration Date”); provided that the then-effective Commitment Expiration Date may be extended from, and including, such Commitment Expiration Date until, but excluding, the day that is one calendar month following such Commitment Expiration Date at the election of the Borrower by written notice to the Joint Bookrunners no later than two business days prior to such Commitment Expiration Date (each such extension, a “Commitment Expiration Extension”); provided, further, that there may not be more than five (5) Commitment Expiration Extensions.

It is agreed that (i) Morgan Stanley Bank, N.A. will act as lead arranger for the Facility (the “Lead Arranger” and together with any other lead arranger appointed pursuant to this Section 2, the “Lead Arrangers”), (ii) MSSF will act as joint bookrunner for the Facility (together with any other bookrunner appointed pursuant to this Section 2 and together with the Lead Arrangers, each a “Joint Bookrunner” and, collectively, the “Joint Bookrunners”), (iii) MSSF or a third party agent designated by the Borrower with the approval of the Joint Bookrunners (not to be unreasonably withheld or delayed) will act as administrative agent for the Facility (in such capacity, the “Administrative Agent”) and (iv) Morgan Stanley & Co. LLC will act as calculation agent (the “Calculation Agent”).

You agree that no other agents, co-agents, arrangers or bookrunners will be appointed, no other titles will be awarded and no compensation (other than compensation expressly contemplated by this Commitment Letter and the Fee Letter referred to below) will be required to be paid to any Lender (as defined in the Term Sheet) expressly in order to obtain its commitment to participate in the Facility unless you and the Joint Bookrunners shall so agree.

You hereby represent and warrant that (as to the Issuer and its subsidiaries and businesses, to your knowledge), (a) all written factual information and written factual data (such information, other than financial information and projections, financial estimates, forecasts and other forward-looking information, collectively, the “Projections” and other than information of a general economic or industry specific nature, the “Information”), that has been or will be made available to any Commitment Party by you or by any of your representatives on your behalf in connection with the Acquisition contemplated hereby, when taken as a whole after giving effect to all supplements and updates provided thereto, does not or will not, when furnished, and when taken as a whole and together with the Issuer’s public filings with the Securities and Exchange Commission (other than any portions thereof under the “risk factors” section or other cautionary language) contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein, when taken as a whole, not materially misleading in light of the circumstances under which such statements are made and (b) the Projections that have been or will be made available to any Commitment Party by you or by any of your representatives on your behalf in connection with the Acquisition contemplated hereby, when taken as a whole, have been, or will be, prepared in good faith based upon assumptions that are believed by you to be reasonable at the time prepared and at the time the related Projections are so furnished; it being understood that the Projections are as to future events and are not to be viewed as facts, the Projections are subject to significant uncertainties and contingencies, many of which are beyond your or the Sponsor’s control, that no assurance can be given that any particular Projections will be realized and that actual results during the period or periods covered by any such Projections may differ significantly from the projected results and such differences may be material. You agree that, if at any time prior to the initial funding of the Facility (the “Funding Date”), you become aware that any of the representations and warranties in the preceding sentence would be incorrect in any material respect if the Information and the Projections were being furnished, and such representations were being made, at such time, then you will use commercially reasonable efforts to promptly supplement the Information and the Projections such that (with respect to the Information and the Projections relating to the Issuer and its subsidiaries, to your knowledge) such representations and warranties are true and correct in all material respects under those circumstances, it being understood in each case that such supplementation shall cure any breach of such representations and warranties. You understand that in arranging and syndicating the Facility we may use and rely on the Information and Projections without independent verification thereof.

Notwithstanding anything to the contrary contained in this Commitment Letter or the Fee Letter, none of the making of the foregoing representations, any supplements thereto, or the accuracy of any such representations and warranties, whether or not cured, shall constitute a condition precedent to the availability of the commitments and obligations of the Initial Lenders hereunder or the funding of the Facility on the Funding Date.

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

The commitments of the Initial Lenders hereunder to fund the Facility on the Funding Date and the agreements of the Joint Bookrunners to perform the services described herein are subject solely to the conditions set forth in the Conditions Annex. There are no conditions (implied or otherwise) to the commitments hereunder, and there will be no conditions (implied or otherwise) under the Facility documentation to the initial funding of the Facility on the Funding Date, including compliance with the terms (but not the conditions) of this Commitment Letter, the Fee Letter and the Facility documentation, other than those that are expressly set forth in the Conditions Annex.

You agree (a) to indemnify and hold harmless each Commitment Party, its respective affiliates and its and their respective officers, members, directors, employees, agents, advisors and controlling persons and assigns (each, an “Indemnified Person”), from and against any and all losses, claims, damages and liabilities of any kind or nature, joint or several, to which any such Indemnified Person may become subject to the extent arising out of or in connection with any actual or threatened claim, litigation, investigation or proceeding resulting from this Commitment Letter (including the Term Sheet), the Fee Letter, the Acquisition, the Facility or any use of the proceeds thereof (any of the foregoing, a “Proceeding”), regardless of whether any such Indemnified Person is a party thereto, whether or not such Proceedings are brought by you, your equity holders, affiliates, creditors, the Issuer or any other third person, and to reimburse each such Indemnified Person upon demand for any reasonable and documented and invoiced out-of-pocket legal expenses of one firm of counsel for all such Indemnified Persons, taken as a whole and, if necessary, of a single local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) material to the interests of all such Indemnified Persons, taken as a whole (and, in the case of an actual or perceived conflict of interest where the Indemnified Persons affected by such conflict notifies you thereof and, with your consent (such consent not to be unreasonably withheld or delayed), retains their own counsel and informs you, of another firm of counsel for such affected Indemnified Persons and each similarly situated Indemnified Person, taken as a whole) (or otherwise as agreed by the Borrower) and other reasonable and documented and invoiced out-of-pocket fees and expenses incurred in connection with investigating or defending any of the foregoing (but in the case of fees and expenses of any other advisor or consultant, solely to the extent you have consented to the retention of such person (such consent not to be unreasonably withheld or delayed)); provided that the foregoing indemnity will not, as to any Indemnified Person, apply to losses, claims, damages, liabilities or related expenses to the extent that they have resulted from (i) the fraud, willful misconduct, bad faith or gross negligence of such Indemnified Person or any of such Indemnified Person’s controlled and controlling affiliates or any of its or their respective officers, members, directors, employees, agents, advisors and controlling persons and assigns (as determined by a court of competent jurisdiction in a final and non-appealable decision), (ii) a material breach of the obligations of such Indemnified Person or any of such Indemnified Person’s affiliates under this Commitment Letter, the Term Sheet or the Fee Letter (as determined by a court of competent jurisdiction in a final and non-appealable decision) or (iii) any Proceeding that does not involve an act or omission by you or any of your affiliates and that is brought by an Indemnified Person against any other Indemnified Person (other than any claims against a Commitment Party in its capacity or in fulfilling its role as an Administrative Agent, Calculation Agent, arranger or any similar role under the Facility to the extent none of the exceptions in clauses (i) and (ii) of this proviso would apply) and (b) if and only if the Funding Date occurs, to reimburse each Commitment Party on the Funding Date, upon presentation of a summary statement, for all reasonable and documented and invoiced out-of-pocket expenses and reasonable documented and invoiced fees, disbursements and other charges of counsel to the Administrative Agent, the Calculation Agent and of a single local counsel to the Commitment Parties in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) (and, in the case of an actual or perceived conflict of interest where the Indemnified Person affected by such conflict retains its own counsel and informs you, of another firm of counsel for such affected Indemnified Person) and of such other counsel retained with your prior written consent (which consent shall not be unreasonably withheld, delayed or conditioned) or retained in connection with enforcement of this Commitment Letter or the Fee Letter, in each case incurred in connection with the Facility and the preparation, negotiation and enforcement of this Commitment Letter, the Fee Letter, the Facility documentation and any security arrangements in connection therewith (collectively, the “Expenses”). The foregoing provisions in this paragraph shall be superseded in each case, to the extent covered thereby, by the applicable provisions contained in the Facility documentation upon execution thereof and thereafter shall have no further force and effect.

You shall not, without the prior written consent of any Indemnified Person affected thereby (which consent shall not be unreasonably withheld or delayed) (it being understood that the withholding of consent due to non-satisfaction of any conditions described in clauses (i) and (ii) of this sentence shall be deemed reasonable), effect any settlement of any pending or threatened proceedings in respect of which indemnity could have been sought hereunder by such Indemnified Person unless such settlement (i) includes an unconditional release of such Indemnified Person in form and substance reasonably satisfactory to such Indemnified Person from all liability or claims that are the subject matter of such proceedings and (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnified Person. Each Indemnified Person shall be severally obligated to refund or return any and all amounts paid by you under this Section 7 to the extent such Indemnified Person is not entitled to payment of such amounts in accordance with the terms hereof as determined by a final, non-appealable judgment of a court of competent jurisdiction.

You shall not be liable for any settlement of any Proceeding effected without your consent (which consent shall not be unreasonably withheld, conditioned or delayed), but if settled with your written consent or if there is a final and non-appealable judgment by a court of competent jurisdiction for the plaintiff in any such Proceeding, you agree to indemnify and hold harmless each Indemnified Person from and against any and all losses, claims, damages, liabilities and expenses by reason of such settlement or judgment in accordance with and to the extent provided in the other provisions of this Section 7.

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 actual or potential conflicts of interest between you and the Indemnified Person.

Notwithstanding any other provision of this Commitment Letter or the Fee Letter, (i) neither you, nor any of your affiliates nor any Indemnified Person shall be liable for any damages arising from the use by others of information or other materials obtained through internet, electronic, telecommunications or other information transmission systems, except to the extent that such damages have resulted from the fraud, willful misconduct, bad faith or gross negligence of, or a material breach of the obligations under this Commitment Letter, the Term Sheet or the Fee Letter by, such Person or any of such Person’s affiliates or any of its or their respective officers, directors, employees, agents, advisors, controlling persons or other representatives (as determined by a court of competent jurisdiction in a final and non-appealable decision) and (ii) none of we, you, any of your affiliates, the Issuer (or its subsidiaries) or any Indemnified Person shall be liable for any indirect, special, punitive or consequential damages in connection with this Commitment Letter, the Fee Letter, the Acquisition (including the Facility and the use of proceeds thereunder), or with respect to any activities related to the Facility, including the preparation of this Commitment Letter, the Fee Letter and the Facility documentation; provided that nothing contained in this paragraph shall limit your indemnity and reimbursement obligations to the extent that such indirect, special, punitive or consequential damages are included in any claim by a third party unaffiliated with any of the Commitment Parties with respect to which the applicable Indemnified Person is entitled to indemnification pursuant to the third immediately preceding paragraph.

It is further agreed that the Initial Lenders shall be liable in respect of their respective commitments to the Facility on a several, and not joint, basis with any other Initial Lender, and no Initial Lender shall be responsible for the commitment of any other Initial Lender.

This Commitment Letter is delivered to you on the understanding that none of the Fee Letter and its terms or substance, or, prior to your acceptance hereof, this Commitment Letter and its terms or substance or the activities of any Commitment Party pursuant hereto or to the Fee Letter, shall be disclosed, directly or indirectly, to any other person or entity (including other lenders, underwriters, placement agents, advisors or any similar persons) except (a) to the Sponsor, and to your and any of the Sponsor’s subsidiaries and affiliates and your and their respective officers, directors, employees, agents, attorneys, accountants, advisors and controlling persons who are informed of the confidential nature thereof, on a confidential and need-to-know basis, (b) if the Commitment Parties consent to such proposed disclosure (such consent not to be unreasonably withheld or delayed) or (c) pursuant to the order of any court or administrative agency in any pending legal or administrative proceeding, or otherwise as required by applicable law, rule or regulation or compulsory legal process or to the extent requested or required by governmental and/or regulatory authorities or the rules of any applicable stock exchange (in which case, you agree, to the extent practicable and not prohibited by applicable law, rule or regulation, to inform us promptly thereof); provided that (i) you may disclose this Commitment Letter and the contents hereof (and, to the extent provisions thereof have been redacted in a manner reasonably satisfactory to us, the Fee Letter) to the Issuer and its officers, directors, employees, agents, attorneys, accountants, advisors and controlling persons, on a confidential and need-to-know basis, (ii) you may disclose the Commitment Letter (but not the Fee Letter) and its contents in any syndication or other marketing materials in connection with the Facility or in connection with any public or regulatory filing requirement relating to the Acquisition, (iii) you may disclose the Term Sheet and the other exhibits and annexes to the Commitment Letter (but not the Fee Letter) and the contents thereof, to potential Initial Lenders and their affiliates involved in the related commitments, to equity investors and to rating agencies in connection with obtaining ratings for the Borrower and the Facility, (iv) you may disclose the aggregate fees contained in the Fee Letter as part of Projections, pro forma information or a generic disclosure of aggregate sources and uses related to fee amounts related to the Acquisition to the extent customary or required in offering and marketing materials for the Facility or in any public or regulatory filing requirement relating to the Acquisition, (v) you may disclose this Commitment Letter (but not the Fee Letter) in any tender offer or proxy relating to the Acquisition, (vi) you may disclose the Commitment Letter and the contents thereof to the extent its terms or substance becomes publicly available other than by reason of your violation of the terms of this Commitment Letter and (vii) you may disclose the Fee Letter and the contents thereof to any prospective additional Commitment Party or prospective equity investor and their respective officers, directors, employees, attorneys, accountants and advisors, in each case on a confidential basis. You agree that you will permit 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 Facility or the transaction contemplated hereby contained in any press release (or other written public statement that references any Commitment Party or affiliate thereof by name) prior to public release. The confidentiality provisions set forth in this paragraph shall survive the termination of this Commitment Letter and expire and shall be of no further effect after the second anniversary of the Lender Effective Date.

Each Commitment Party and its affiliates will use all non-public information provided to any of them or such affiliates by or on behalf of you hereunder or in connection with the Acquisition solely for the purpose of providing the services which are the subject of this Commitment Letter and negotiating, evaluating and consummating the transactions contemplated hereby and shall treat confidentially all such information and shall not publish, disclose or otherwise divulge such information; provided that nothing herein shall prevent such Commitment Party and its affiliates from disclosing any such information (a) pursuant to the order of any court or administrative agency or in any pending legal, judicial or administrative proceeding, or otherwise as required by applicable law, rule or regulation or compulsory legal process (in which case such Commitment Party agrees (except with respect to any routine or ordinary course audit or examination conducted by bank accountants or any governmental, bank regulatory or self-regulatory authority exercising examination or regulatory authority), to the extent practicable and not prohibited by applicable law, rule or regulation, to inform you promptly thereof prior to disclosure), (b) upon the request or demand of any regulatory authority (including any self-regulatory authority) having jurisdiction over such Commitment Party or any of its affiliates (in which case such Commitment Party agrees (except with respect to any routine or ordinary course audit or examination conducted by bank accountants or any governmental, bank regulatory or self-regulatory authority exercising examination or regulatory authority) to the extent practicable and not prohibited by applicable law, rule or regulation, to inform you promptly thereof prior to disclosure), (c) to the extent that such information becomes publicly available other than by reason of improper disclosure by such Commitment Party or any of its affiliates or any related parties thereto in violation of any confidentiality obligations owing to you, the Sponsor, the Issuer or any of your or their respective subsidiaries or affiliates or related parties, (d) to the extent that such information is received by such Commitment Party from a third party that is not, to such Commitment Party’s knowledge, subject to confidentiality obligations owing to you, the Issuer or any of your or their respective subsidiaries or affiliates or related parties, (e) to the extent that such information was already in our possession prior to any duty or other undertaking of confidentiality or is independently developed by the Commitment Parties without the use of such information, (f) to other Commitment Parties and such Commitment Party’s affiliates and to its and their respective officers, directors, partners, employees, legal counsel, independent auditors and other experts, advisors or agents who need to know such information in connection with the Acquisition and who are informed of the confidential nature of such information and who are subject to customary confidentiality obligations of professional practice or who agree to be bound by the terms of this paragraph (or language substantially similar to this paragraph) (with each such Commitment Party, to the extent within its control, responsible for such person’s compliance with this paragraph), (g) to potential or prospective Initial Lenders, hedge providers, participants or assignees, in each case who agree (pursuant to customary syndication practice) to be bound by the terms of this paragraph (or language substantially similar to this paragraph); provided that the disclosure of any such information to any Initial Lenders, hedge providers or prospective Initial Lenders, hedge providers or participants or prospective participants referred to above shall be made subject to the acknowledgment and acceptance by such Initial Lender, hedge provider or prospective Initial Lenders or participant or prospective participant that such information is being disseminated on a confidential basis (on substantially the terms set forth in this paragraph or as is otherwise reasonably acceptable to you and each Commitment Party, including, without limitation, as agreed in any information materials or other marketing materials) in accordance with the standard syndication processes of such Commitment Party or customary market standards for dissemination of such type of information, which shall in any event require “click through” or other affirmative actions on the part of recipient to access such information, (h) for purposes of establishing a “due diligence” defense or (i) subject to your prior approval of the information to be disclosed, to rating agencies in connection with obtaining ratings for the Borrower or the Facility. In addition, each Commitment Party may disclose the existence of the Facility to market data collectors, similar service providers to the lending industry and service providers to the Commitment Parties in connection with the administration and management of the Facility. In the event that the Facility is funded, the Commitment Parties’ and their respective affiliates’, if any, obligations under this paragraph, shall terminate automatically and be superseded by the confidentiality provisions in the Facility documentation upon the initial funding thereunder to the extent that such provisions are binding on such Commitment Parties. Otherwise, the confidentiality provisions set forth in this paragraph shall survive the termination of this Commitment Letter and expire and shall be of no further effect after the second anniversary of the Lender Effective Date.

THIS COMMITMENT LETTER AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS COMMITMENT LETTER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK without regard to principles of conflicts of law to the extent that the application of the laws of another jurisdiction would be required thereby.

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 Borough of Manhattan in the City 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 or the transactions contemplated hereby or thereby, or for recognition or enforcement of any judgment, and agrees that all claims in respect of any such action or proceeding shall be heard and determined in such New York State court or, to the extent permitted by law, in such Federal court, (b) waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Commitment Letter, the Fee Letter or the transactions contemplated hereby or thereby in any such New York State court or in any such Federal court, (c) waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court and (d) agrees that a final judgment in any such suit, action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Each of the parties hereto agrees that service of process, summons, notice or document by registered mail addressed to you or the Joint Bookrunners at the addresses set forth above shall be effective service of process for any suit, action or proceeding brought in any such court.

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 FEE LETTER OR THE PERFORMANCE OF SERVICES HEREUNDER OR THEREUNDER.

This Commitment Letter and the commitments hereunder shall not be assignable by any party hereto (other than by you to another newly formed shell entity organized and existing under the laws of a state of the United States, or another jurisdiction to be agreed between you and us, which is an affiliate of and will be controlled by the Sponsor that consummates or intends to consummate the Acquisition) without the prior written consent of each other party hereto (which consent shall not be unreasonably withheld, delayed or conditioned) (and any attempted assignment without such consent shall be null and void). This Commitment Letter and the commitments hereunder are, and are intended to be, solely for the benefit of the parties hereto (and Indemnified Persons to the extent expressly set forth herein) and do not, and are not intended to, confer any benefits upon, or create any rights in favor of, any person other than the parties hereto (and Indemnified Persons to the extent expressly set forth herein). The Commitment Parties may assign any of their respective commitments or delegate any or all of their respective rights and obligations hereunder to any of their affiliates and reserve the right to employ the services of their respective affiliates or branches in providing services contemplated hereby (each such affiliate or branch, a “Delegate”) and to allocate, in whole or in part, to their respective Delegates certain fees payable to the Commitment Parties in such manner as the Commitment Parties and their respective Delegates may agree in their sole discretion and, to the extent so employed, such Delegates shall be entitled to the benefits and protections afforded to, and subject to the provisions governing the conduct of the Commitment Parties hereunder; provided that the applicable Commitment Party shall remain liable to the Borrower for the performance of such rights and obligations by its Delegate and shall not be relieved, released or novated from its obligations hereunder (including its obligation to fund the Facility on the date of the consummation of the Acquisition with the proceeds of the initial funding under the Facility).

This Commitment Letter may not be amended or any provision hereof waived or modified except by an instrument in writing signed by each of the Commitment Parties and you. This Commitment Letter may be executed in any number of counterparts, each of which shall be deemed 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, scan, photograph or other electronic transmission shall be effective as delivery of a manually executed counterpart hereof. The words “execution”, “signed”, “signature” and words of like import herein shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on the electronic platform DocuSign, digital copies of a signatory’s manual signature, and deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act. This Commitment Letter (including the exhibits hereto), together with the Fee Letter, (i) are the only agreements that have been entered into among the parties hereto with respect to the commitments relating to the Facility and (ii) supersede all prior understandings, whether written or oral, among the Joint Bookrunners with respect to the Facility and set forth the entire understanding of the parties hereto with respect thereto.

Each Commitment Party represents and warrants that this Commitment Letter and the Fee Letter constitute its legally valid and binding obligation (except as may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or other similar laws relating to or affecting the rights of creditors generally), including (i) to provide services set forth herein, in the case of the Joint Bookrunners, and fund its commitment under the Facility upon satisfaction (or waiver) of the conditions precedent as provided herein in Section 6, in the case of the Initial Lenders, and (ii) to negotiate in good faith the Facility documentation in a manner consistent with this Commitment Letter, in each case, enforceable at law and in equity in accordance with their terms and subject only to the conditions precedent as provided herein in Section 6. You represent and warrant that this Commitment Letter and the Fee Letter constitute your legally valid and binding obligations (except as may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or other similar laws relating to or affecting the rights of creditors generally), enforceable at law and in equity against you in accordance with their terms; provided that nothing contained in this Commitment Letter or the Fee Letter obligates you or any of your affiliates to consummate Acquisition or to draw upon all or any portion of the Facility.

Each Commitment Party acknowledges that the Principal owns common stock of Tesla, Inc. that are not pledged to secure any outstanding obligations and will not be pledged to secure the Facility (the “Unpledged Shares”). Each Commitment Party further acknowledges that the Principal may sell, dispose of or transfer such Unpledged Shares at any time in accordance with applicable securities laws.

We hereby notify you that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “PATRIOT Act”) and of 31 C.F.R. § 1010.230 (as amended, the “Beneficial Ownership Regulations”), each of the Joint Bookrunners and each of the Initial Lenders may be required to obtain, verify and record information that identifies the Borrower and the Guarantor, which information may include their names, addresses, tax identification numbers and other information that will allow each of the Joint Bookrunners and the Initial Lenders to identify the Borrower and the Guarantor in accordance with the PATRIOT Act and the Beneficial Ownership Regulations. This notice is given in accordance with the requirements of the PATRIOT Act and the Beneficial Ownership Regulations and is effective for each of the Joint Bookrunners and the Initial Lenders.

The indemnification, compensation (if applicable), reimbursement (if applicable), information (if applicable), payment of fees, jurisdiction, governing law, venue, waiver of jury trial, absence of fiduciary relationships, survival and confidentiality provisions (if applicable) contained herein and in the Fee Letter shall remain in full force and effect regardless of whether Facility documentation shall be executed and delivered and notwithstanding the termination or expiration of this Commitment Letter or the Initial Lenders’ commitments hereunder; provided that your obligations under this Commitment Letter (other than your obligations with respect to confidentiality of the Fee Letter and the contents thereof) shall automatically terminate and be superseded by the provisions of the Facility documentation upon the initial funding thereunder, and you shall automatically be released from all liability in connection therewith at such time.

Section headings used herein are for convenience of reference only and are not to affect the construction of, or to be taken into consideration in interpreting, this Commitment Letter.

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 Joint Bookrunners (or their counsel) executed counterparts hereof and of the Fee Letter not later than the Countersign Expiration Time. The Initial Lenders’ Funding Commitments and the obligations of the Joint Bookrunners hereunder will expire at such time in the event that the Joint Bookrunners (or the Joint Bookrunners’ legal counsel) have not received such executed counterparts in accordance with the immediately preceding sentence.

If you do so execute and deliver to the Joint Bookrunners (or their counsel) this Commitment Letter and the Fee Letter, the Commitment Parties agree that the Funding Commitments and the services of the Commitment Parties to be provided hereunder shall be available for you until the earliest of (such earliest date being the “Termination Date”) (i) the Funding Date, (ii) the consummation of the Acquisition without the funding of the Facility, (iii) the termination by the Sponsor of the Acquisition and (iv) the Commitment Expiration Date (as may be extended in accordance with this Commitment Letter). Upon the occurrence of the Termination Date, this Commitment Letter and the commitments of each of the Commitment Parties hereunder and the agreement of the Joint Bookrunners to provide the services described herein shall automatically terminate unless each Commitment Party (as to itself) shall, in its discretion, agree to an extension in writing of its commitment; provided that the termination of any such commitment pursuant to this paragraph does not prejudice our or your rights and remedies in respect of any breach of this Commitment Letter.

[Signature Pages Follow]

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

[Project X Commitment Letter Signature Page]

[Project X Commitment Letter Signature Page]

Accepted and agreed to as of

the date first above written:

X HOLDINGS III, LLC

[Project X Commitment Letter Signature Page]

SCHEDULE I

COMMITMENTS

EXHIBIT A

Project X

Margin Loan Facility
Summary of Principal Terms and Conditions

[To be Attached]

EXHIBIT A 

Summary of Principal Terms and Conditions

¹ The Borrower will be a bankruptcy-remote newly-formed limited liability company incorporated in the state of Delaware. See “Borrower Organization Documents” below.

² To be determined based on the Market Reference Price on the second Business Day prior to Funding Date.

EXHIBIT B

Project X
Supplemental Conditions

Except as otherwise set forth below, the availability and initial funding on the Funding Date of the Facility shall be subject to the satisfaction (or waiver by the Commitment Parties) of the following conditions:

1.             If the Acquisition is accomplished via a tender offer by the Principal (as such tender offer may be amended, supplemented or otherwise modified from time to time, the “Tender Offer”) pursuant to the initial offer to purchase, to be dated on or about April 2022 (as such offer to purchase may be amended, supplemented or otherwise modified from time to time, the “Initial Offer to Purchase” (it being acknowledged that the draft of the Initial Offer to Purchase received by counsel to the Joint Bookrunners on April 20, 2022 at 5:34 p.m. (New York time) is reasonably acceptable to the Joint Bookrunners)), the Tender Offer shall have been immediately prior to or, substantially concurrently with, the initial borrowing under the Facility, consummated in all material respects in accordance with the terms of the Initial Offer to Purchase, without giving effect to any modifications, amendments or express waivers or consents by you (or one of your affiliates) thereto that are materially adverse to the Initial Lenders in their capacities as such without the written consent of the Joint Bookrunners (not to be unreasonably withheld, conditioned or delayed); provided that any modification, amendment, waiver or consent by you (or one of your affiliates) with respect to the Poison Pill Condition (as defined in the Tender Offer as of the date hereof), the Minimum Tender Condition (as defined in the Tender Offer as of the date hereof) or the Merger Agreement Condition (as defined in the Tender Offer as in effect on the date hereof) shall be deemed materially adverse to the Initial Lenders in their capacities as such without the express written consent of the Joint Bookrunners who (together with their respective affiliates) hold at least 66.67% of the aggregate commitments in respect of the Facility. If the Acquisition is accomplished via an agreement and plan of merger (or similarly styled agreement) to be entered into with the Target (the “Acquisition Agreement”) (i) the Acquisition Agreement shall be reasonably acceptable to the Joint Bookrunners (it being understood that any such agreement shall be deemed to be reasonable to the Joint Bookrunners if (x) the terms of the Acquisition set forth therein are generally consistent with the Initial Offer to Purchase without material modifications that are materially adverse to the Initial Lenders and (y) contain customary “Xerox” lender protection provisions) and (ii) the Acquisition shall have been immediately prior to or, substantially concurrently with the initial borrowing under the Facility, consummated in all material respects in accordance with the terms of the Acquisition Agreement, without giving effect to any modifications, amendments or express waivers or consents by you (or one of your affiliates) thereto that are materially adverse to the Initial Lenders in their capacities as such without the consent of the Joint Bookrunners (not to be unreasonably withheld, conditioned or delayed). It being understood that for purposes of the condition set forth in this paragraph 1, (x) any increase in consideration payable with respect to the Acquisition shall not be materially adverse to the Initial Lenders so long as such increase is not funded with additional indebtedness (other than amounts available to be drawn on the Funding Date from the Facility) and (y) notwithstanding the proviso above any modification, amendment, waiver or consent by you (or one of your affiliates) with respect to the Minimum Tender Condition shall not be deemed to be materially adverse to the Initial Lenders in their capacities as such if you (or one of your affiliates) acquire at least ninety percent (90)% of the outstanding shares of the Issuer pursuant to the Tender Offer and consummate the acquisition as a “short form” second-step merger pursuant to Section 253 of the DGCL as described in the Initial Offer to Purchase.

2.            The Administrative Agent and the Initial Lenders shall have received, at least three business days prior to the Funding Date, (a) all documentation and other information about the Borrower and the Guarantor as shall have been reasonably requested in writing by the Administrative Agent or the Initial Lenders at least ten business days prior to the Funding Date and as required by applicable regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the PATRIOT Act and (b) if the Borrower qualifies as a “legal entity” customer under 31 C.F.R. § 1010.230 and the Administrative Agent has provided the Borrower the name of each requesting Initial Lender and its electronic delivery requirements at least ten business days prior to the Funding Date, the Administrative Agent and each such Initial Lender requesting a certification regarding beneficial ownership as required by 31 C.F.R. §1010.230 (such certification, the “Beneficial Ownership Certification”) (which request is made through the Administrative Agent) will have received, at least three business days prior to the Funding Date, the Beneficial Ownership Certification in relation to the Borrower.

3.            The Administrative Agent and each Initial Lender shall have received each of the following documents, duly executed:

4.         On or prior to the Funding Date, the collateral accounts for the Initial Lenders shall have been established by Borrower and Guarantor; Borrower and Guarantor shall have executed and delivered all account opening documentation reasonably requested by the custodian for the collateral accounts; the common stock of Tesla, Inc. to be pledged as collateral (the “Collateral Shares”) shall have been credited to the collateral accounts on a pro rata basis and held through the facilities of DTC; such Collateral Shares shall be free from all transfer restrictions (other than certain permitted transfer restrictions) and restrictive conditions (other than certain permitted transfer restrictions); and all steps required to perfect the Initial Lenders’ security interest in the Collateral Shares shall have been satisfied in all material respects.

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

6.         Each of the Specified Representations (as defined below) shall be true and correct in all material respects (unless any such representation or warranty is qualified as to materiality, in which case it shall be true and correct in all respects) on and as of the Funding Date, except to the extent that such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such date (unless any such representation or warranty is qualified as to materiality, in which case it shall be true and correct in all respects as of such date).

7.         Borrower shall have delivered to Administrative Agent a certificate from a responsible officer of Borrower in the form set forth in Annex B-2 hereto, dated as of the Funding Date, which shall contain representations that the conditions set forth in Conditions (4), (6), (9) and (10) of this Exhibit B have been satisfied.

8.             Borrower shall have delivered to Administrative Agent a Borrowing Notice at least three business days prior to the Funding Date.

9.             Immediately after giving effect to the advances, the LTV Ratio (as such term is defined in the Term Sheet) shall not exceed 20%.

10.           No Collateral Shortfall (as such term is defined in the Term Sheet) shall have occurred that has not been cured or waived, and no Default, Event of Default, Potential Adjustment Event, Mandatory Prepayment Event (in each case, as defined in the Term Sheet) shall have occurred and be continuing, in each case on the Funding Date and none of the foregoing shall result from the funding of the Facility or the application of the proceeds therefrom.

11.           The Funding Date shall have occurred no later than the end of the Availability Period.

For purposes of this Exhibit B, “Specified Representations” means the representations and warranties made by the Borrower and the Guarantor to be set forth in the Facility Documentation relating to the corporate or other organizational existence, power and authority, due authorization, execution, delivery and enforceability, in each case related to the borrowing under, guaranteeing under, granting of security interests in the Collateral Shares to, entry into and performance of, the Facility Documentation; the incurrence of the loans and the provision of the guarantee to be provided by the Guarantor, in each case under the Facility, and the granting of the security interests in the Collateral Shares to secure the Facility, not conflicting with the Borrower’s constitutional documents or conflicting with any of the contracts, indentures, or other agreements of the Borrower or the Guarantor; solvency as of the Funding Date of each of the Borrower and the Guarantor on a consolidated basis (solvency to be defined in a manner consistent with the manner in which solvency is defined in the solvency certificate to be delivered pursuant to paragraph 3d of this Exhibit B); creation, validity and perfection of security interests in the Collateral Shares to be perfected on the Funding Date (subject to permitted liens); Federal Reserve margin regulations; the use of loan proceeds not violating OFAC or the FCPA, and other anti-terrorism, anti-bribery, anti-corruption and anti-money laundering laws; the PATRIOT Act; and the Investment Company Act.

Form of Solvency Certificate

Date: _____

This Solvency Certificate is delivered pursuant to Section [____] of the Margin Loan Agreement, dated as of [____], 2022 (as it may be amended, restated, supplemented or otherwise modified, refinanced or replaced from time to time, the “Loan Agreement”), among X Holdings III, LLC, a Delaware limited liability company (the “Borrower”), the lenders from time to time party thereto (“Lenders”) and Morgan Stanley Senior Funding, Inc., as Administrative Agent and Calculation Agent. Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Loan Agreement.

The undersigned hereby certifies, solely in his capacity as Member of the Borrower, and not in his individual capacity (and without personal liability), as follows:

1.            I am the sole Member of X Holdings III, LLC. I am familiar with the Transactions, and have reviewed the Loan Agreement and such documents and made such investigation as I have deemed relevant for the purposes of this Solvency Certificate.

2.            As of the date hereof, immediately after giving effect to the consummation of the Transactions, (i) the present fair market value of the assets of the Borrower exceeds the total amount of the liabilities (including contingent liabilities) of the Borrower, (ii) the Borrower has capital and assets sufficient to carry on its businesses, (iii) the Borrower is not engaged and is not about to engage in a business or a transaction for which its remaining assets are unreasonably small in relation to such business or transaction and (iv) the Borrower does not intend to incur or believe that it will incur debts beyond its ability to pay as they become due.

3.            The Borrower will not be rendered insolvent by the consummation of the Transactions.

This Solvency Certificate is being delivered by the undersigned officer only in his capacity as the Member of the Borrower and not individually and the undersigned shall have no personal liability to the Administrative Agent, the Calculation Agent or the Lenders with respect thereto.

[Remainder of page intentionally left blank; signature page follows]

IN WITNESS WHEREOF, the undersigned has executed this Solvency Certificate on the date first written above.

Form of Responsible Officer’s Certificate

Reference is made to the Margin Loan Agreement, dated as of [____], 2022 (as it may be amended, restated, supplemented or otherwise modified, refinanced or replaced from time to time, the “Loan Agreement”), among X Holdings III, LLC, a Delaware limited liability company (the “Borrower”), the Lenders from time to time party thereto and Morgan Stanley Senior Funding, Inc., as Administrative Agent and Calculation Agent. Terms used but not defined herein shall have the meanings given to such terms in the Loan Agreement.

This certificate is being furnished pursuant to Section [____] of the Loan Agreement.

[Remainder of page intentionally left blank]

IN WITNESS WHEREOF, the undersigned has executed this Certificate on the date first written above.

EXHIBIT E

STRICTLY CONFIDENTIAL

April 20, 2022

X Holdings I, Inc.

X Holdings II, Inc.

2110 Ranch Road

620 S. #341886,

Austin, TX 78734

Ladies and Gentlemen:

Reference is made to a possible third-party tender offer by X Holdings II, Inc., a Delaware corporation (the “Purchaser”), and a wholly owned subsidiary of X Holdings I, Inc., a Delaware corporation (“Parent”), to purchase all outstanding shares of common stock, par value $0.000005 per share (the “Common Stock”), of Twitter, Inc., a Delaware corporation (the “Company”), together with the associated rights issued pursuant to the rights agreement, dated as of April 15, 2022, by and between the Company and Computershare Trust Company, N.A., as rights agent, that are issued and outstanding (the “Rights” and, together with the Common Stock, the “Shares”), upon the terms and subject to the conditions set forth in the Offer to Purchase, related Letter of Transmittal, and other tender offer materials provided by or on behalf of Parent and the Purchaser to each holder of Shares (which, collectively, as amended or supplemented, constitute the “Offer”), together with the proposed second-step merger contemplated thereby (the “Merger”). Each term used and not otherwise defined herein shall have the meaning assigned to such term in the Offer.

This letter agreement is being delivered by Elon Musk (including his assigns, the “Equity Investor”) to Parent and the Purchaser in connection with the Offer and the Merger.

In connection with the Offer and the Merger, the Equity Investor is pleased to offer this commitment to, directly or indirectly, contribute to or otherwise provide cash to, Parent or the Purchaser at or immediately prior to the closing of the Offer (the “Closing”) the Aggregate Equity Commitment (as defined below), or such lesser amount as is necessary to fully discharge, when taken together with any other funds available to Parent or the Purchaser, the amounts required to be funded by Parent or the Purchaser pursuant to the Offer and the Merger, including the payment of any and all other amounts, costs, fees and expenses required to be paid by Parent or the Purchaser in connection with the Offer and the Merger pursuant to and in accordance with the terms of the Offer and the Merger.

1.             Commitment. This letter agreement confirms the commitment of Equity Investor , subject to the conditions set forth herein and in the Offer (the “Commitment”), to, directly or indirectly, contribute to or otherwise provide cash to Parent or the Purchaser at or immediately prior to the Closing (or cause an assignee to do the same) for the purpose of enabling Parent and the Purchaser to (a) accept for payment, purchase and pay for any and all Shares tendered pursuant to the Offer at the time of acceptance (the “Offer Price Amount”), (b) fund the payment of any and all amounts required to be paid by Parent and Purchaser in connection with the Merger (the “Merger Price Amount”), and (c) fund the payment of any and all other amounts, costs, fees and expenses required to be paid by Parent or the Purchaser in connection with the Offer and the Merger (collectively, “Transaction Cost Amount”, and together with the Offer Price Amount and the Merger Price Amount, the “Aggregate Equity Commitment”). Notwithstanding anything else to the contrary in this letter agreement, the Equity Investor (together with his assigns) shall not have any obligation under any circumstances to contribute to, or otherwise provide to, Parent or the Purchaser, directly or indirectly, funds in an amount in excess of the Aggregate Equity Commitment. The Aggregate Equity Commitment shall be funded in United States Dollars in immediately available funds. The obligation of the Equity Investor (together with his assigns) to fund the Aggregate Equity Commitment is subject to (i) the terms of this letter agreement and (ii)(A) with respect to the Offer Price Amount, (I) the execution, filing, and dissemination of the Offer by Parent and the Purchaser, (II) the satisfaction or waiver of each Condition of the Offer, (III) the contemporaneous acceptance for payment by Parent and the Purchaser of all Shares validly tendered and not properly withdrawn pursuant to the Offer and (IV) substantially contemporaneous receipt by Parent or the Purchaser of the cash proceeds of the Debt Financing and the Margin Loan Financing; (B) with respect to the Merger Price Amount, (I) the execution, filing, and dissemination of the Offer by Parent and the Purchaser, (II) the satisfaction or waiver of each Condition of the Offer, (III) the satisfaction or waiver of each condition in the definitive merger agreement to be entered into with respect to the Merger, (IV) substantially contemporaneous receipt by Parent or the Purchaser of the cash proceeds of the Debt Financing and the Margin Loan Financing, (V) the consummation of the Offer in accordance with the terms of the Offer and (VI) the consummation of the Merger, and (C) with respect to the Transaction Cost Amount, (I) the execution, filing, and dissemination of the Offer by Parent and the Purchaser, (II) the satisfaction or waiver of each Condition of the Offer, (III) the satisfaction or waiver of each condition in the definitive merger agreement to be entered into with respect to the Merger, (IV) the substantially contemporaneous receipt by Parent or the Purchaser of the cash proceeds of the Debt Financing and the Margin Loan Financing, (V) the consummation of the Offer in accordance with the terms of the Offer. The Aggregate Equity Commitment may be reduced by (x) any other equity contributions made to the Parent and Purchaser (or any of its direct or indirect parent entities) for such purpose and/or (y) any additional Debt Financing obtained by Parent or the Purchaser, in each case, on or after the date hereof and prior to or at the Closing; provided, that any such reduction will occur concurrently with, and will be conditioned on the consummation of, the Closing. The Aggregate Equity Commitment shall be used solely as will be required, and solely to the extent necessary, to fund the Offer Price Amount, the Transaction Cost Amount and/or the Merger Price Amount, solely to the extent and when required to be paid by Parent or the Purchaser on the terms and subject to the conditions set forth herein and in the Offer and not for any other purpose whatsoever.

2.            Termination. The Equity Investor’s obligation to fund the Aggregate Equity Commitment will terminate automatically and immediately upon the earliest to occur of (a) the consummation of the Closing (if the Closing occurs) (but only if such obligation to fund the Aggregate Equity Commitment shall have been discharged in connection therewith) and (b) a termination or expiration of the Offer in accordance with its terms. Upon the termination or expiration of this letter agreement, no party hereto shall have any further obligations or liabilities hereunder.

3.            Representations and Warranties. The Equity Investor hereby represents and warrants that:

(a)      he has all necessary power and authority to execute, deliver and perform this letter agreement;

(b)      this letter agreement constitutes a legal, valid and binding obligation of the Equity Investor enforceable against the Equity Investor in accordance with its terms, except (i) as may be limited by any bankruptcy, insolvency, reorganization, moratorium and similar legal requirements affecting or relating to the enforcement of creditors’ rights generally and (ii) is subject to general principles of equity, whether considered in a proceeding at law, in equity, in contract, in tort or otherwise; and

(c)      he has the financial capacity to pay and perform his obligations under this letter agreement for so long as this letter agreement shall remain in effect in accordance with Section 2 hereof.

4.            Assignment; Reliance. The Equity Investor may assign all or a portion of his obligations to fund the Aggregate Equity Commitment to any person; provided, however that any such assignment shall not relieve the Equity Investor of his obligations hereunder unless and to the extent actually performed. Parent and the Purchaser may not assign any of their rights or obligations set forth herein without the prior written consent of the Equity Investor. The Equity Investor acknowledges that, if Parent and the Purchaser commence the Offer or announces their intention to commence the Offer, Parent and the Purchaser shall be doing so in reliance upon, among other things, the Commitment set forth herein.

5.            Recourse. This letter agreement may only be enforced by the parties hereto; notwithstanding anything that may be expressed or implied in this letter agreement, Parent and the Purchaser, by their acceptance hereof, covenant, acknowledge and agree that no party other than the parties hereto shall have any obligation hereunder and that, (a) notwithstanding that any of the undersigned may be a partnership or limited liability company, no recourse (whether at law, in equity, in contract, in tort or otherwise) hereunder or under any documents or instruments delivered in connection herewith, or in respect of any oral representations made or alleged to be made in connection herewith or therewith, shall be had against any former, current or future direct or indirect director, officer, employee, agent, partner, manager, member, security holder, affiliate, stockholder, controlling party, assignee, representative, lender or other financing source of the undersigned, other than the parties hereto or their assignees under the Offer (any such party, other than the parties hereto or their assignees under the Offer, a “Related Party” and together, the “Related Parties”), or any Related Party of any Related Party of any party hereto (including, without limitation, in respect of any liabilities or obligations arising under, or in connection with, this letter agreement or the transactions contemplated hereby (or in respect of any oral representations made or alleged to be made in connection herewith or therewith) or with respect to any legal action (whether at law, in equity, in contract, in tort or otherwise), including, without limitation, in the event Parent or the Purchaser breaches its obligations under the Offer and including whether or not the breach by Parent or the Purchaser is caused by the breach by any Equity Investor of his obligations under this letter agreement) whether by the enforcement of any judgment or assessment or by any legal or equitable proceeding, or by virtue of any statute, regulation or other applicable law; and (b) no personal liability whatsoever will attach to, be imposed on or otherwise incurred by any Related Party of any party hereto or any Related Party of any Related Party of any party hereto under this letter agreement or any documents or instruments delivered in connection herewith (or in respect of any oral representations made or alleged to be made in connection herewith or therewith) or for any legal action (whether at law, in equity, in contract, in tort or otherwise) based on, in respect of, or by reason of such obligations hereunder or by their creation or any legal or equitable proceeding (including, without limitation, alleging an alter ego theory or seeking to piece the corporate veil or otherwise). Nothing in this letter agreement, express or implied, is intended to or shall confer upon any party, other than the parties hereto, any right, benefit or remedy of any nature whatsoever under or by reason of this letter agreement; provided, that the Related Parties are third party beneficiaries of this Section 5.

6.            Governing Law; Consent to Jurisdiction. This letter agreement, and all actions, causes of action, claims, cross-claims, third-party claims or proceedings of any kind (whether at law, in equity, in contract, in tort or otherwise) that may be based upon, arise out of or relate to this letter agreement, or the negotiation, execution or performance hereof (including any action, cause of action, claim, cross-claim, third-party claim or proceeding of any kind based upon, arising out of or related to any representation or warranty made in or in connection herewith) shall be governed by and construed in accordance with the laws of the State of Delaware, regardless of legal requirements that might otherwise govern under applicable principles of conflicts of laws. Each of the parties hereto hereby irrevocably and unconditionally (a) submits, for itself and its property, to the exclusive jurisdiction of the Delaware Court of Chancery (or, only if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter, any federal court of the United States of America sitting in the State of Delaware), and any appellate court from any thereof, in any action, cause of action, claim, cross-claim or third-party claim or proceeding of any kind arising out of or relating to this letter agreement, or the negotiation, execution or performance hereof (including any action, cause of action, claim, cross-claim or third-party claim or proceeding of any kind based upon, arising out of or related to any representation or warranty made in or in connection herewith), or for recognition or enforcement of any judgment, and agrees that all claims in respect of any such action, cause of action, claim, cross-claim or third-party claim or proceeding of any kind shall be heard and determined in such Delaware Court of Chancery (or, only if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter, any federal court of the United States of America sitting in the State of Delaware), (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 action, cause of action, claim, cross-claim or third-party claim or proceeding of any kind arising out of or relating to this letter agreement, or the negotiation, execution or performance hereof (including any action, cause of action, claim, cross-claim or third-party claim or proceeding of any kind based upon, arising out of or related to any representation or warranty made in or in connection herewith) in the Delaware Court of Chancery, any federal court of the United States of America sitting in the State of Delaware, or in any Delaware State court, (c) waives, to the fullest extent permitted by legal requirement, the defense of an inconvenient forum to the maintenance of such action, cause of action, claim, cross-claim or third-party claim or proceeding of any kind in any such court and (d) agrees that a final judgment in any such action, cause of action, claim, cross-claim or third-party claim or proceeding of any kind shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by legal requirement.

7.         Entire Agreement; Amendments and Waivers. This letter agreement and the Offer represent the entire understanding and agreement between the parties hereto with respect to the subject matter hereof. This letter agreement may only be amended, restated, supplemented or otherwise modified or waived by a written instrument signed by each of the parties hereto. No action taken pursuant to this letter agreement, including any investigation by or on behalf of any party, shall be deemed to constitute a waiver by the party taking such action of compliance with any representation, warranty, covenant or obligation contained herein. The waiver by any party hereto of a breach of any provision of this letter agreement shall not operate or be construed as a further or continuing waiver of such breach or as a waiver of any other or subsequent breach. No failure on the part of any party to exercise, and no delay in exercising, any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of such right, power or remedy by such party preclude any other or further exercise thereof or the exercise of any other right, power or remedy.

8.          Severability. If any condition, term or other provision of this letter agreement is invalid, illegal, or incapable of being enforced by any legal requirement or public policy, all other conditions, terms or provisions of this letter agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such determination that any term or other provision is invalid, illegal, or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this letter agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible.

9.            Counterparts; Delivery by Email. This letter agreement may be executed in any number of counterparts (including counterparts transmitted in .pdf or similar format) with the same effect as if all signatory parties had signed the same document. All counterparts shall be construed together and shall constitute one and the same instrument. In addition, PDF signatures of authorized signatories of any party shall be valid and binding and delivery of a PDF signature by any party shall constitute due execution and delivery of this letter agreement.

10.          WAIVER OF JURY TRIAL. THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, CAUSE OF ACTION, CLAIM, CROSS-CLAIM OR THIRD-PARTY CLAIM OR ACTION OF ANY KIND (WHETHER AT LAW, IN EQUITY, IN CONTRACT, IN TORT OR OTHERWISE) THAT MAY BE BASED UPON, ARISE OUT OF OR RELATE TO THIS LETTER AGREEMENT, OR THE NEGOTIATION, EXECUTION OR PERFORMANCE HEREOF (INCLUDING ANY ACTION, CAUSE OF ACTION, CLAIM OR LEGAL PROCEEDING OF ANY KIND OR DESCRIPTION BASED UPON, ARISING OUT OF OR RELATED TO ANY REPRESENTATION OR WARRANTY MADE IN OR IN CONNECTION HEREWITH) OR ANY TRANSACTION CONTEMPLATED HEREBY (INCLUDING THE AGGREGATE EQUITY COMMITMENT), WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER AT LAW, IN EQUITY, IN CONTRACT, IN TORT OR OTHERWISE. EACH PARTY HERETO CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE OF ANY OTHER PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY HERETO WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVER, (III) IT MAKES SUCH WAIVER VOLUNTARILY AND (IV) IT HAS BEEN INDUCED TO ENTER INTO THIS LETTER AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.

[The remainder of this page is intentionally left blank]

[Signature Page to Equity Commitment Letter]