Second Amended and Restated Debt Commitment Letter, dated May 8, 2018, by and among Albertsons Companies, Inc., Bank of America, N.A., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Credit Suisse AG, Credit Suisse Loan Funding LLC, Goldman Sachs Bank USA, Morgan Stanley Senior Funding, Inc., Deutsche Bank Securities Inc., Deutsche Bank AG New York Branch, Deutsche Bank AG Cayman Islands Branch, Barclays Bank PLC, Royal Bank of Canada, Wells Fargo Bank, National Association, Wells Fargo Securities, LLC, PNC Bank, National Association, PNC Capital Markets LLC, Suntrust Robinson Humphrey, Inc., SunTrust Bank, U.S. Bank National Association, The Bank of Tokyo-Mitsubishi UFJ, Ltd. (and its affiliates), Bank of Montreal, Fifth Third Bank, TD Bank, N.A. and Capital One, National Association

EX-10.1 2 d571091dex101.htm EX-10.1 EX-10.1

Exhibit 10.1

EXECUTION VERSION

CONFIDENTIAL


Bank of America, N.A. Merrill Lynch, Pierce, Fenner & Smith Incorporated One Bryant Park New York, New York 10036	Credit Suisse Loan Funding LLC Credit Suisse AG Eleven Madison Avenue New York, New York 10010	Goldman Sachs Bank USA 200 West Street New York, New York 10282

Morgan Stanley Senior Funding, Inc. 1585 Broadway New York, New York 10036	Barclays 745 Seventh Avenue New York, New York 10019	Deutsche Bank AG New York Branch Deutsche Bank AG Cayman Islands Branch Deutsche Bank Securities Inc. 60 Wall Street New York, New York 10005

Royal Bank of Canada 200 Vesey Street New York, New York 10281	Wells Fargo Bank, National Association Wells Fargo Securities, LLC 550 South Tryon Street Charlotte, NC 28202	PNC Bank, National Association 3 PNC Plaza 225 Fifth Avenue, 5th Floor Pittsburgh, PA 15222 PNC Capital Markets LLC The Tower at PNC 300 Fifth Avenue, 10th Floor Pittsburgh, PA 15222

Suntrust Robinson Humphrey, Inc. SunTrust Bank 3333 Peachtree Road Northeast Atlanta, Georgia 30326	U.S. Bank National Association 800 Nicollet Mall Minneapolis, MN 55402	MUFG 1221 Avenue of the Americas New York, New York 10020

Bank of Montreal 3 Times Square, 28^th Floor New York, New York 10036	Capital One, National Association 299 Park Avenue New York, NY 10171	Fifth Third Bank Fifth Third Center 38 Fountain Square Plaza Cincinnati, OH 45263

TD Bank, N.A. 125 Park Avenue, 24^th Floor New York, New York 10017

May 8, 2018

Albertsons Companies, Inc.

250 Parkcenter Blvd.

Boise, Idaho 83706

Re:

Project Ranch Second Amended and Restated Commitment Letter

Ladies and Gentlemen:

Reference is made to (i) that certain Commitment Letter, dated as of February 18, 2018 (the “Original Commitment Letter”), by and among Bank of America, N.A. (“Bank of America”), Merrill Lynch, Pierce, Fenner & Smith Incorporated (or any of its designated affiliates, “MLPF&S”), Credit Suisse AG (“CS” and, together with Credit Suisse Loan Funding LLC (“CSLF”), “Credit Suisse”) and Credit Suisse Securities (USA) LLC (“CS Securities”), and Goldman Sachs Bank USA (“GS Bank” and together with CS, CS Securities, Bank of America and MLPF&S, the “Original Commitment Parties”) and Albertsons Companies, Inc. (the “Company” or “you”) and (ii) that certain Amended and Restated Commitment Letter (the “Restated Commitment Letter”), dated as of March 12, 2018, by and among you, the Original Commitment Parties, Morgan Stanley Senior Funding, Inc. (“MSSF”), Deutsche Bank Securities Inc. (“DBSI”), Deutsche Bank AG New York Branch (“DBNY”), Deutsche Bank AG Cayman Islands Branch (“DBCI” and together with DBSI and DBNY, “Deutsche Bank”), Barclays Bank PLC (“Barclays”), Royal Bank of Canada (“RBC”), Wells Fargo Bank, National Association (“Wells Fargo Bank”), Wells Fargo Securities, LLC (“Wells Fargo Securities” and together with Wells Fargo Bank, “Wells Fargo”), PNC Bank, National Association (“PNC Bank”), PNC Capital Markets LLC (“PNC Capital Markets” and together with PNC Bank, “PNC”), Suntrust Robinson Humphrey, Inc. (“STRH”), SunTrust Bank (“SunTrust Bank” and together with STRH, “SunTrust”), U.S. Bank National Association (“U.S. Bank”), MUFG (as defined below), Bank of Montreal (“Bank of Montreal”), Fifth Third Bank (“Fifth Third”), TD Bank, N.A. (“TD Bank”) and Capital One, National Association (“Capital One” and, together with the Original Commitment Parties, CSLF, MSSF, Deutsche Bank, Barclays, RBC, Wells Fargo, PNC, SunTrust, U.S. Bank, MUFG, Bank of Montreal, Fifth Third and TD Bank, the “Commitment Parties”, “we” or “us”). You have advised us that you intend to acquire, directly or indirectly (the “Acquisition”), Rite-Aid Corporation (the “Target”) pursuant to an Agreement and Plan of Merger, dated as of February 18, 2018, by and among the Company, Ranch Acquisition II, LLC, a newly formed, wholly owned subsidiary of the Company, Ranch Acquisition Corp., a newly formed, wholly owned subsidiary of Ranch Acquisition II, LLC, and the Target (the “Acquisition Agreement”), and to assume associated liabilities, to refinance certain existing indebtedness, and to consummate the other transactions (together with the Acquisition and certain related transactions, the “Transactions”) described in the Transaction Description attached hereto as Exhibit A (the “Transaction Description”). For purposes of this Commitment Letter, “MUFG” means MUFG Bank Ltd. (formerly known as The Bank of Tokyo-Mitsubishi UFJ, Ltd.), MUFG Union Bank, N.A., MUFG Securities Americas Inc. and/or any of their affiliates as MUFG shall determine to be appropriate to provide the services contemplated herein. Any capitalized term used but not defined herein shall have the meaning assigned to it in the Transaction Description, each Summary of Principal Terms and Conditions attached hereto as Exhibit B-1, Exhibit B-2 and Exhibit C (collectively, the “Term Sheets”) and/or the Conditions Annex attached hereto as Exhibit D (the “Conditions Annex”). This second amended and restated commitment letter, the Transaction Description, the Term Sheets and the Conditions Annex are collectively referenced as the “Commitment Letter”. This Commitment Letter amends, restates and supersedes in all respects the Restated Commitment Letter.

1. Commitments.

Each of the Commitment Parties listed on Schedule I (in such capacity, together with their respective affiliates of similar creditworthiness, each an “Initial Lender” and collectively, the “Initial Lenders”) is pleased to advise you of its several and not joint commitment to provide to the Borrowers (i) the amount of the Best Efforts ABL Revolving Facility (as defined in Exhibit A) set forth opposite such Initial Lender’s name on Schedule I, (ii) if the Best Efforts ABL Facility (as defined in Exhibit A) does not become effective on the Closing Date (as defined in Exhibit A), the amount of Incremental ABL

Commitments (as defined below) set forth opposite such Initial Lender’s name on Schedule I, (iii) the amount of the ABL FILO Facility set forth opposite such Initial Lender’s name on Schedule I (which shall be (A) subject to the “flex provisions” of the Fee Letter in the form of the ABL FILO Facility contemplated by Exhibit B-1 if the Best Efforts ABL Facility is provided on the Closing Date and (B) if clause (A) does not apply, in the form of the ABL FILO Facility contemplated by Exhibit B-2) and (iv) the amount of the Senior Secured Bridge Facility (as defined in Exhibit C) set forth opposite such Initial Lender’s name on Schedule I, in each case, upon the terms and subject to the conditions expressly set forth in this Commitment Letter. It is expressly understood and agreed that (i) the amount of the commitments in respect of the Best Efforts ABL Revolving Facility that are in excess of the aggregate commitments of the Initial Lenders in respect of the Best Efforts ABL Revolving Facility as set forth on Schedule I (such amount of commitments, the “Excess Best Efforts ABL Revolving Commitments”) are not being provided on an underwritten basis by any Commitment Party or any of its affiliates (each a “Commitment Party Entity”) and (ii) no Commitment Party Entity shall have any obligation to provide any portion of the Excess Best Efforts ABL Revolving Commitments or to ensure the successful syndication of the Excess Best Efforts ABL Revolving Commitments and any such obligation would only arise pursuant to a separate written agreement between such Commitment Party Entity and you.

Each commitment by an Initial Lender shall be several and not joint with the commitments of each other Initial Lender. For purposes of this Commitment Letter, the “Incremental ABL Commitments” means an aggregate of $1,000,000,000 of Additional Commitments (as defined in the Existing ABL Facility) having terms and conditions identical to the Commitments under the Existing ABL Facility in effect on the date hereof, which will be documented pursuant to an Increase Joinder (as defined in the Existing ABL Facility) (the “Incremental ABL Facilities Documentation”) consistent with the foregoing and which shall provide that, subject to the conditions set forth in paragraph 13 of the Conditions Annex, up to $1,700,000,000 of loans under the Existing ABL Facility may be borrowed to finance a portion of the Refinancing and pay fees and expenses in connection with the Transactions (plus additional amounts to finance (i) working capital needs of the Company and its subsidiaries, (ii) upfront fees or original issue discount pursuant to the “flex” provisions of the Fee Letter or incurred in connection with the Senior Secured Notes, (iii) Merger Consideration and (iv) the refinancing of indebtedness of the Target and its subsidiaries following the date of the Acquisition Agreement as permitted by the Acquisition Agreement) (the “Incremental ABL Documentation Principles”).

It is agreed that (i) MLPF&S, Credit Suisse, GS Bank, MSSF, Barclays, DBSI, RBC, Wells Fargo Bank, PNC Capital Markets, STRH, U.S. Bank, MUFG, Bank of Montreal, Capital One, Fifth Third and TD Bank will act as joint lead bookrunners and joint lead arrangers for each of the Incremental ABL Commitments and the Best Efforts ABL Revolving Facility, (ii) each of MLPF&S, Credit Suisse, GS Bank MSSF, Barclays, DBSI, RBC, Wells Fargo Bank (solely with respect to the ABL FILO Facility), Wells Fargo Securities (solely with respect to the Senior Secured Bridge Facility) and MUFG will act as joint lead bookrunners and joint lead arrangers for the ABL FILO Facility and the Senior Secured Bridge Facility and (iii) each of PNC Capital Markets, STRH and U.S. Bank will act as co-managers for the ABL FILO Facility and the Senior Secured Bridge Facility (in such capacity, each an “Arranger” and collectively, the “Arrangers”). It is further agreed that MLPF&S will appear on the top left cover page of any marketing materials for any marketing materials for each of the Credit Facilities and the names of the other applicable Arrangers will appear immediately to the right thereof in the applicable order set forth above, and such persons will hold roles and responsibilities conventionally understood to be associated with such name placement. Except as otherwise provided in the Term Sheets, it is also agreed that Bank of America will act as the sole and exclusive administrative agent (in such capacity, the “Best Efforts ABL Administrative Agent”) for the Best Efforts ABL Facility, Bank of America will act as the sole and exclusive administrative agent (in such capacity, the “ABL FILO Administrative Agent”) for the ABL FILO Facility, and Bank of America will act as the sole and exclusive administrative agent (in such capacity, the “Bridge Administrative Agent” and, together with the ABL Administrative Agent and the ABL

Facility Administrative Agent, the “Administrative Agents”) for the Senior Secured Bridge Facility. You agree that no other agents, co-agents or arrangers will be appointed, 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 connection with the Credit Facilities in order to obtain its commitments unless you and the Original Commitment Parties shall so agree.

2. Conditions to Commitments. Notwithstanding anything in this Commitment Letter, the second amended and restated fee letter, dated as of the date hereof between you and us (the “Fee Letter”), the Facilities Documentation or any other letter agreement or other undertaking concerning the financing of the transactions contemplated hereby to the contrary, (i) the commitments of the Initial Lenders hereunder and the undertakings of the Arrangers hereunder are subject only to the conditions set forth in the Conditions Annex, and upon satisfaction (or waiver by us) of such conditions, the initial funding of the applicable Credit Facilities shall occur (except, in the case of the Senior Secured Bridge Facility, to the extent of the amount of the gross proceeds of the Senior Secured Notes or other “Securities”(as defined in the Fee Letter) issued in lieu of the Senior Secured Bridge Facility or a portion thereof); it being understood that there are no conditions (implied or otherwise) to the commitments hereunder in respect of the initial fundings contemplated hereby, including compliance with the terms of this Commitment Letter, the Fee Letter or the Facilities Documentation, other than those expressly set forth in the Conditions Annex, (ii) the only representations and warranties the accuracy of which shall be a condition to availability of the Credit Facilities on the Closing Date shall be (A) such of the representations and warranties with respect to the Target in the Acquisition Agreement as are material to the interests of the Lenders, but only to the extent that you have (or your applicable affiliate has) the right to terminate its obligations under the Acquisition Agreement or to decline to consummate the Acquisition as a result of a breach of such representations and warranties in the Acquisition Agreement (to such extent, the “Specified Acquisition Agreement Representations”) and (B) the Specified Representations (as defined below) in the Facilities Documentation and (iii) the terms of the Facilities Documentation shall be in a form such that they do not impair availability of the Credit Facilities on the Closing Date if the conditions expressly set forth in the Conditions Annex are satisfied (it being understood that, to the extent any collateral (including the creation or perfection of any security interest) is not or cannot be provided and/or perfected on the Closing Date (other than (x) to the extent that a lien on such collateral may under applicable law be perfected upon closing by the filing of financing statements under the Uniform Commercial Code, (y) delivery of the certificated equity interests, if any, of the Target and its wholly owned subsidiaries (to the extent required by the Term Sheets); provided that any such certificated equity securities of wholly-owned subsidiaries will only be required to be delivered on the Closing Date to the extent that it is in your possession, and (z) the execution and delivery by each Loan Party of customary personal property security agreements (including, without limitation, intellectual property security agreements) consistent with the Documentation Principles) after your use of commercially reasonable efforts to do so, then the provision of any such collateral shall not constitute a condition precedent to the availability of the Credit Facilities on the Closing Date but shall be required to be provided within 90 days (or such longer period as the applicable Administrative Agent may agree in its reasonable judgment) after the Closing Date pursuant to arrangements to be mutually agreed. For purposes hereof, “Specified Representations” means the representations and warranties set forth in the Term Sheets relating to the corporate or other organizational existence of the Loan Parties, organizational power and authority (as they relate to due authorization, execution, delivery and performance of the Facilities Documentation), no violation of charter documents (as it relates to the execution, performance and delivery of the Facilities Documentation), due authorization, execution and delivery and enforceability, in each case as they relate to the entering into and performance of the relevant Facilities Documentation by the Loan Parties, solvency as of the Closing Date (after giving effect to the Transactions) of the Company and its subsidiaries on a consolidated basis (such representation and warranty to be consistent with the solvency certificate in the form set forth in Annex I attached to the Conditions Annex), Federal Reserve margin regulations, the Investment Company Act, PATRIOT ACT and the use of proceeds not violating FCPA or OFAC, and creation, validity and perfection of security interests,

as applicable, in the collateral to be granted on the Closing Date (subject to the exceptions set forth in this paragraph and the Term Sheets and permitted liens as set forth in the Facilities Documentation). This paragraph, and the provisions contained herein, shall be referred to as the “Certain Funds Provision”.

3. [Reserved].

4. Syndication.

(a) We intend to syndicate each of the Credit Facilities to a group of lenders identified by the Arrangers in consultation with you (together with the Initial Lenders, the “Lenders”). In addition, notwithstanding the foregoing, the Arrangers will not syndicate to those banks, financial institutions and other institutional lenders and investors (i) that have been separately identified in writing by you to us prior to the date of the Original Commitment Letter, (ii) those persons who are competitors of the Company, the Target and their respective subsidiaries that are separately identified in writing by you to us from time to time (which list of competitors may be supplemented by you after the Closing Date by means of a written notice to each Administrative Agent), and (iii) in the case of each of clauses (i) and (ii), any of their affiliates that are either (a) identified in writing by you from time to time or (b) readily identifiable on the basis of such affiliate’s name (clauses (i), (ii) and (iii) 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. Notwithstanding any other provision of this Commitment Letter to the contrary, other than assignments among Goldman Sachs Bank USA and Goldman Sachs Lending Partners LLC, (x) no Initial Lender shall be relieved or novated from its obligations hereunder in connection with any syndication or assignment until after the funding of the initial loans on the Closing Date, (y) no such assignment or novation shall become effective with respect to any portion of any Initial Lender’s commitment in respect of any of the Credit Facilities until the initial funding of the Credit Facilities on the Closing Date, and (z) unless you otherwise agree in writing, each Initial Lender shall retain exclusive control over all rights and obligations with respect to its commitments, including all rights with respect to consents, modifications and amendments, until the funding of the initial loans on the Closing Date; provided that GS Bank may, without notice to you, assign its rights and obligations under this Commitment Letter and the Fee Letter to Goldman Sachs Lending Partners LLC.

(b) The Arrangers may decide to commence syndication efforts at any time after the date of your acceptance of this Commitment Letter, and from such date until the earlier to occur of (a) a Successful Syndication (as defined in the Fee Letter) of the Credit Facilities and (b) the date that is 30 days after the Closing Date (such period, the “Syndication Period”), you agree to assist us in achieving a Successful Syndication. To assist us in our syndication efforts, you agree, upon our reasonable request, to (i) provide, and, to the extent possible using your commercially reasonable efforts, cause the Target to provide, to the Arrangers all information reasonably requested and deemed reasonably necessary or advisable by the Arrangers to complete a Successful Syndication (it being understood, for the avoidance of doubt, that the only financial statements required to be provided to the Arrangers in connection with the syndication shall be those required under paragraph 5, as applicable, of the Conditions Annex), (ii) assist, and to the extent possible using your commercially reasonable efforts, cause the Target to assist, the Arrangers in the preparation of one or more confidential information memoranda (the “Confidential Information Memorandum”) and other customary marketing materials to be used in connection with the syndication, (iii) make available at a reasonable number of meetings of prospective Lenders your representatives, and, to the extent possible using your commercially reasonable efforts, representatives of the Target, in each case, on reasonable prior notice and at reasonable times and places to be mutually agreed, (iv) use your commercially reasonable efforts to obtain ratings for the Senior Secured Bridge Facility, Senior Secured Notes and ABL FILO Facility and corporate or corporate family ratings, as applicable, for the Company from S&P (as defined below) and Moody’s (as defined below) and

(v) ensure that, at all times during the Syndication Period, no competing issues of commercial bank facilities or debt securities in which any Loan Party is a primary obligor are announced, arranged, syndicated or issued by the Company or any of its subsidiaries, without our prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed) if such issuance would have a material adverse effect on the syndication of the Credit Facilities; provided that such restriction shall not apply to (A) the Transactions or (B) deferred purchase price obligations, capital leases, purchase money financing of equipment, borrowings under the Existing ABL Facility or other ordinary course indebtedness of the Company, the Target or any of your or its respective subsidiaries, intercompany indebtedness, and indebtedness permitted under the Acquisition Agreement and other financings permitted under the Company’s existing debt facilities in the ordinary course of business, provided that the Company may not (i) incur any indebtedness the proceeds of which will be used for any restricted payments, or to finance any acquisitions that, in the aggregate, involve consideration of more than $250 million, and (ii) enter into and consummate any sale and leaseback transactions in an aggregate amount that exceeds $250 million unless the proceeds thereof are used to reduce loans or commitments under the Senior Secured Bridge Facility or the Term Loan Facility. Notwithstanding the foregoing, it is understood and agreed that the commencement and completion of any syndication of the Credit Facilities (and your undertakings with respect thereto set forth herein) shall not be a condition precedent to the commitments of the Initial Lenders hereunder or the undertakings of the Arrangers hereunder. You acknowledge and agree that you will be responsible for the contents of all Information (as defined below) provided in connection with our syndication efforts and that we may rely on the accuracy thereof in preparing any Confidential Information Memorandum or other Informational Materials (as defined below).

(c) The Arrangers and/or one or more of their respective affiliates will exclusively manage all aspects of the syndication of the Credit Facilities (in consultation with you), including decisions as to the selection and number of potential Lenders to be approached, when they will be approached, whose commitments will be accepted, when they will participate and the final allocations of the commitments and any related fees among the Lenders, and the Arrangers will exclusively perform all functions and exercise all authority as is customarily performed and exercised in such capacities. Except as otherwise agreed by you, neither you nor any of your affiliates shall be obligated to pay any fees in connection with the syndication of the Credit Facilities other than those fees expressly set forth in the Fee Letter and the Term Sheets.

5. Information.

(a) You hereby represent and warrant that (i) to the best of your knowledge with respect to the Target and its subsidiaries and otherwise without such qualification with respect to assets already owned by you, all written information and written data (other than (A) the Projections, as defined below, (B) matters relating to the forward looking portion of financial models and (C) projections and information of a general economic or industry-specific nature) concerning the Company and its subsidiaries or the Target and its subsidiaries that have been or will be supplied to the Lenders by you or any of your representatives on your behalf and that are used in connection with the financing contemplated by this Commitment Letter (the “Information”), taken as a whole, are, or will be when furnished, complete and correct in all material respects as of the date furnished and do not, or will not when furnished, considered as a whole, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein not materially misleading in light of the circumstances under which such statements are made (after giving effect to all supplements and updates thereto from time to time), and (ii) all financial projections concerning the Company and its subsidiaries or the Target and its subsidiaries that have been or will be made available to the Lenders by you or any of your representatives on your behalf and that are used in connection with the financing contemplated by this Commitment Letter (the “Projections”) have been or will be (and with respect to the

Target and its subsidiaries, to the knowledge of the Company) prepared in good faith based upon assumptions believed by the preparer thereof in good faith to be reasonable at the time furnished (it being understood that such Projections are not to be viewed as facts, are by their nature inherently uncertain, and are subject to significant contingencies many of which are beyond your control, that no assurance can be given that any particular Projection will be realized, that actual results may differ and that such differences may be material). If you become aware that any of the representations or warranties in the preceding sentence would be incorrect in any materially adverse manner prior to the end of the Syndication Period, if the Information and Projections were being furnished, and all such representations were being made, at such time, you will notify us and will (i) with respect to Information or Projections relating to you or your subsidiaries, promptly supplement the Information and the Projections and (ii) with respect to Information or Projections relating to the Target and its subsidiaries, use your commercially reasonable efforts to cause the Target to supplement the Information and the Projections from time to time until the later of the end of the Syndication Period and the Closing Date such that the representations in the preceding sentence remain true under those circumstances; provided, that your obligation to update the Information and Projections, shall not be a condition to the availability of the Credit Facilities on the Closing Date. In syndicating the Credit Facilities, we will be entitled to use and rely on the Information and the Projections without responsibility for independent review or verification thereof.

(b) You hereby acknowledge and agree that the Arrangers may make available the Information, Projections and other marketing materials and presentations, including the Confidential Information Memorandum (collectively, the “Informational Material”), to the potential Lenders by posting the Informational Materials on IntraLinks, Syndtrak or any similar platform (the “Platform”) or by other similar electronic means. You hereby further acknowledge and agree that (i) certain potential Lenders (the “Public Lenders”) may not wish to receive material non-public information with respect to the Company, the Target or your and its respective subsidiaries or any of your or their respective securities and (ii) you will take commercially reasonable steps to assist, and cause your affiliates, advisors, and to the extent possible using your commercially reasonable efforts, the Target to assist, the Arrangers in the preparation of Informational Materials to be used in connection with the syndication of the Credit Facilities to Public Lenders, which will only include data and materials that either (A) are publicly available, (B) constitute information concerning the Company or its subsidiaries or their securities that would be publicly available if the Company or such subsidiary (as the case may be) were required to be subject to the reporting requirements of Section 13(a) or Section 15 (d) of the Securities Exchange Act of 1934 as amended from time to time, or (C) are not material information (although it may be sensitive or proprietary) with respect to the Company, the Target or their respective subsidiaries or any of their respective securities for purposes of United States federal and state securities laws (such Informational Materials, collectively, “Public Information”). You further hereby acknowledge and agree that (i) Informational Material that is to be made available to Public Lenders will be clearly and conspicuously marked “PUBLIC” which, at a minimum, will mean that the word “PUBLIC” will appear prominently on the first page thereof, (ii) by marking Informational Material “PUBLIC,” you will be deemed to have authorized the Arrangers and the proposed Lenders to treat such Informational Material as not containing any information with respect to the Company, the Target or any of their respective subsidiaries or any of their respective securities that would not meet the criteria set forth in clauses (A), (B), and (C) of clause (ii) of the preceding sentence; (iii) all Informational Material marked “PUBLIC” is permitted to be made available through a portion of the Platform designated “Public Lender,” and (iv) the Arrangers will be entitled to treat any Informational Material that is not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Lender.”

6. Indemnification.

(a) You hereby agree to indemnify and hold harmless each Arranger and each Initial Lender and each of their respective affiliates, directors, officers, employees, partners, representatives and agents (each, an “Indemnified Party”) from and against any and all actions, suits, losses, claims, damages and liabilities of any kind or nature (regardless of whether any such Indemnified Party is a party thereto and whether or not any investigation, claim, action, suit or proceeding is brought by the Company or the Target or any other person), joint or several, to which any such Indemnified Party becomes subject, related to or arising out of (i) the Transactions, the Original Commitment Letter, the Restated Commitment Letter, the Original Fee Letter (as defined in the Fee Letter) and the Restated Fee Letter (as defined in the Fee Letter), (ii) the use of Informational Materials in connection with any syndication as described above, and (iii) the use or the contemplated use of the proceeds of the Credit Facilities, and to reimburse any Indemnified Party for all reasonable out-of-pocket expenses (collectively, “Losses”) within thirty (30) days after its demand therefor (accompanied by reasonably detailed supporting documentation) as they are incurred in connection with the investigation of, preparation for, or defense of any pending or threatened claim or any action or proceeding arising therefrom. Notwithstanding anything to the contrary contained herein or in the Term Sheets, you shall in no event be required to indemnify or reimburse any Indemnified Party for any Losses (A) to the extent resulting primarily from (1) the gross negligence, bad faith or willful misconduct of, or material breach of this Commitment Letter, the Fee Letter or the Facilities Documentation by, such Indemnified Party (or any of its controlled affiliates and controlling persons and its and their respective officers, directors, employees, agents, advisors and other representatives of such Indemnified Party (collectively, “related persons”)) as determined by a final non-appealable judgment of a court of competent jurisdiction, or (2) disputes solely among Indemnified Parties (or their related persons) that do not involve or arise from an act or omission by you or your affiliate or any claims against any Indemnified Party in its capacity or in fulfilling its role as an agent or arranger or (B) in respect of Losses consisting of legal fees or expenses, other than the reasonable invoiced fees, expenses and charges of one primary counsel (and, to the extent deemed reasonably necessary or advisable by the Arrangers, one local counsel in each material relevant jurisdiction) for all Indemnified Parties taken as a whole, and solely in the case of a conflict of interest, one additional primary counsel (and, to the extent deemed reasonably necessary or advisable by the Arrangers, one local counsel in each material relevant jurisdiction) to the affected Indemnified Parties, taken as a whole.

(b) If the Closing Date occurs, you hereby agree to reimburse the Arrangers for all reasonable and documented out-of-pocket expenses (including due diligence expenses, syndication expenses, travel expenses, collateral field exams, audits and appraisals and expenses relating to the Original Commitment Letter and the Restated Commitment Letter) (collectively, the “Expenses”) on the Closing Date (so long as any invoices therefor (accompanied by reasonably-detailed supporting documentation therefor) are delivered to you at least two business days prior to the Closing Date) or promptly following delivery of an invoice therefor (in the case of any invoices that are delivered later than two business days prior to the Closing Date). In addition, it is understood and agreed that you shall not be required to reimburse any of the Expenses in respect of legal fees and expenses, other than the reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Indemnified Parties (and, to the extent deemed reasonably necessary or advisable by the Arrangers, one local counsel in each material relevant jurisdiction) for all Indemnified Parties taken as a whole, incurred in connection with the Credit Facilities and any related documentation (including this Commitment Letter, the Fee Letter and the Facilities Documentation). For the avoidance of doubt, if any invoices documenting Expenses are not delivered at least two business days prior to the Closing Date, then you agree to reimburse the Arrangers for such Expenses promptly following the Closing Date. You acknowledge that we may receive a benefit, including without limitation, a discount, credit or other accommodation, from any of such counsel based on the fees such counsel may receive on account of their relationship with us including, without limitation, fees paid pursuant hereto.

(c) Notwithstanding any other provision hereof, no party hereto shall be liable for any indirect, special, punitive or consequential damages that may be alleged as a result of the Original Commitment Letter, the Restated Commitment Letter, this Commitment Letter, the Original Fee Letter, the Restated Fee Letter, the Fee Letter or any element of the Transactions; provided that nothing contained in this sentence will limit your indemnity or reimbursement obligations to the extent such indirect, special, punitive or consequential damages are included in any third party claim in connection with which such Indemnified Party is entitled to indemnification hereunder. No Indemnified Party seeking indemnification or reimbursement under this Commitment Letter will, without your prior written consent (not to be unreasonably withheld, delayed or conditioned), settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any claim, litigation, action, investigation or proceeding referred to herein, provided that you agree to indemnify and hold harmless each Indemnified Party in connection with any settlement made with your written consent or if there is a final and non-appealable judgment of a court of competent jurisdiction against an Indemnified Party in connection with any claim, litigation, action, investigation or proceeding referred to herein. You acknowledge that information and documents relating to the Credit Facilities may be transmitted through SyndTrak, Intralinks, the Internet, e-mail or similar electronic transmission systems, and that we shall not be liable for any damages arising from the unauthorized use by others of information or documents transmitted in such manner except to the extent such damages are found in a final, non-appealable judgment of a court of competent jurisdiction to have resulted primarily from our willful misconduct or gross negligence (it being understood that actions consistent with industry practice in the leveraged lending market shall not constitute gross negligence or willful misconduct). Upon the execution and delivery of the definitive Facilities Documentation, the provisions thereof relating to indemnification and reimbursement shall supersede the indemnification and reimbursement provisions hereof, and you shall thereupon be released from such indemnification and reimbursement provisions hereof. Notwithstanding the foregoing, each Indemnified Party (and its related persons) shall be obligated to refund and return promptly any and all amounts paid by you under this paragraph to such Indemnified Party (or such related person) for any such fees, expenses or damages to the extent such Indemnified Party (or such related 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.

(d) The limitations described in this Section 6 are hereinafter referred to as the “Expense and Indemnification Limitations.”

7. Confidentiality. (a) You agree that you will not disclose, directly or indirectly, this Commitment Letter, the Original Commitment Letter, the Restated Commitment Letter, the Original Fee Letter, the Restated Fee Letter, the Fee Letter or the contents of any of the foregoing, to any person or entity without the prior written approval of the Commitment Parties (such approval not to be unreasonably withheld or delayed), except (x) to the indirect equity holders (including potential equity investors) of the Company and to your and their respective officers, directors, agents, employees, attorneys, accountants, advisors, controlling persons or equity holders on a confidential and need-to-know basis, and who are advised of the confidential nature of such information and are or have been advised of their obligation to keep information of this type confidential, (y) if the Commitment Parties consent in writing to such proposed disclosure or (z) pursuant to the order of any court or administrative agency in any pending legal, judicial or administrative proceeding, or otherwise as required by applicable law or compulsory legal process or to the extent requested or required by governmental and/or regulatory authorities (in which case, you shall, to the extent permitted by law, notify us promptly thereof, in advance); provided that (i) you may disclose this Commitment Letter (and, so long as the amount of the fees payable to the Arrangers and the Initial Lenders and the rates and amounts included in the flex provisions are redacted in a form satisfactory to the Arrangers and the Initial Lenders, the Fee Letter) and the contents hereof to the Target and its subsidiaries and their respective officers, directors, agents, employees, attorneys, accountants, advisors, controlling persons or equity holders, on a confidential basis, and who are informed of the

confidential nature of such information and are or have been advised of their obligation to keep information of this type confidential, (ii) you may disclose this Commitment Letter and its contents (but not the Fee Letter or its contents except as set forth in clause (vi) below) in any syndication or other marketing materials in connection with the Credit Facilities, in any prospectus, private placement or offering memorandum or offering circular in connection with the offering and sale of the Senior Secured Notes or other Securities, in any registration statement, in any proxy materials for the Target’s shareholders, and in any public filing relating to the Transactions, (iii) you may disclose the Term Sheets and the contents thereof to rating agencies in connection with obtaining ratings in connection with the Transactions, (iv) you may disclose the Original Commitment Letter and the Original Fee Letter as provided in the Original Commitment Letter and you may disclose the Restated Commitment Letter and the Restated Fee Letter as provided in the Restated Commitment Letter, (v) you may disclose the Commitment and/or the Fee Letter to the extent the contents of the Commitment Letter and/or Fee Letter becomes publicly available other than by reason of disclosure by you in breach of this Commitment Letter and/or Fee Letter, (vi) you may disclose the Fee Letter and the contents thereof or this Commitment Letter and the contents thereof in connection with the protection and enforcement of your rights with respect to this Commitment Letter or the Fee Letter and (vii) you may disclose the aggregate fee amounts 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 or in any public filing. In addition, we may disclose the existence of the facilities and the information about the facilities to market data collectors, similar services providers to the lending industry, and service providers to us in connection with the administration and management of the facilities.

(b) Until the expiration of the Syndication Period, you agree to consult with us prior to your making of any public announcement or public filing relating to the Credit Facilities or to us in connection therewith, except to the extent such announcement or filing is specified by applicable law or regulation or if such consultation is not permitted by applicable legal, regulatory, administrative or judicial process. We agree, on behalf of each of ourselves and our subsidiaries and affiliates, that we will not, and will cause our respective subsidiaries and affiliates to not, prior to the Closing Date, make any public filing or other public disclosure in which reference is made to the Company, the Target or any of your or its respective subsidiaries, the Transactions or the commitments contained herein, without your prior consent, except as may be required by applicable legal, regulatory, administrative or judicial process requirements. In consultation with the Company, an Arranger may place advertisements in financial and other newspapers and periodicals or on a home page or similar place for dissemination of information on the Internet or World Wide Web as it may choose, and circulate similar promotional materials, after closing of the Transactions in the form of a “tombstone” or otherwise describing the names of the Company, the Target, and their respective affiliates (or any of them), and the type and closing date of the Credit Facilities, all at the expense of such Arranger.

(c) Each of the Arrangers and the Initial Lenders shall use all confidential information provided to it by or on behalf of you hereunder solely for the purposes of providing the services that are the subject of this Commitment Letter and otherwise in connection with the Transactions and shall treat confidentially all such information; provided, however, that nothing herein shall prevent any Arranger or any Initial Lender from disclosing any such information or the terms and contents of this Commitment Letter and the Fee Letter (i) to Moody’s Investors Service, Inc. (“Moody’s”) and S&P Global Ratings, a subsidiary of the Standard and Poor’s Financial Services LLC (“S&P”), and other rating agencies as determined by the Arrangers; provided that such information is supplied only on a customary basis after consultation with you, (ii) to any Lenders or participants or prospective Lenders or participants, in each case other than Disqualified Lenders, (iii) to the extent required by the order of any court or administrative agency in any pending legal, judicial or administrative proceeding or otherwise as required by applicable law or regulation (in which case, such person shall, to the extent permitted by law, notify you promptly thereof, in advance), (iv) upon the request or demand of any regulatory authority or self-

regulatory body having jurisdiction or oversight over such person or its affiliates (in which case, to the extent permitted by law, such person shall, except with respect to any audit or examination conducted by bank accountants or any governmental bank regulatory authority exercising examination or regulatory authority, promptly notify you in advance), (v) to their affiliates and their and their affiliates’ respective employees, directors, legal counsel, independent auditors, professionals and other experts or agents of such person on a “need to know” basis and who are informed of the confidential nature of such information and are or have been advised of their obligation to keep information of this type confidential, (vi) to the extent any such information becomes publicly available other than by reason of disclosure by such person in breach of this Commitment Letter or is received by such person from a third party that is not to such person’s knowledge subject to confidentiality obligations to you or the Target or any of your or its respective affiliates, (vii) with your prior written consent, (vii) to the extent independently developed by an Arranger or Initial Lender, (viii) in protecting and enforcing the rights of an Arranger or an Initial Lender with respect to this Commitment Letter or the Fee Letter including for the purposes of establishing a “due diligence” defense with respect to the Transactions, and (ix) on a confidential basis to any actual or prospective direct or indirect contractual counterparty to any swap or derivative transaction relating to the Company or any of its respective subsidiaries; provided that the disclosure of any such information to any Lenders or prospective Lenders or participants or prospective participants or swap or derivative counterparty referred to above shall be made subject to the acknowledgment and acceptance by such Lender or prospective Lender or participant or prospective participant or swap or derivative counterparties 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). It is expressly understood that the obligations of each Lender are several and not joint and that no Lender shall be liable to the extent any confidentiality restrictions are violated by any other Lender. Each Lender shall be liable for any violation of the confidentiality restrictions set forth herein by any of its employees or directors. The obligations under this paragraph of each Arranger and Initial Lender and each of its affiliates, if any, shall terminate automatically and be superseded by the confidentiality provisions in the Facilities Documentation to which such Arranger or Initial Lender is a party upon the execution and delivery thereof and in any event shall terminate on the second anniversary of the date of the Original Commitment Letter.

8. PATRIOT Act Notification. Each of the Commitment Parties hereby notifies 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”), it is required to obtain, verify and record information that identifies the Company, the Target and each other Borrower or Guarantor (as defined in the Term Sheets) in accordance with the Patriot Act. This notice is given in accordance with the requirements of the Patriot Act and is effective for each Commitment Party and each Lender. You hereby acknowledge and agree that the Arrangers shall be permitted to share any or all such information with the Lenders.

9. Other Services. You acknowledge that the Commitment Parties and their respective affiliates (the term “Commitment Parties” as used in this paragraph being understood to include such affiliates) may be providing debt financing, equity capital or other services (including financial advisory services to other companies with which you or your affiliates may have conflicting interests regarding the Transactions and otherwise and that each Commitment Party may act as it deems appropriate in acting in such capacities. In order to best service all parties, each Commitment Party agrees to maintain confidentiality walls in accordance with their internal policies and standard industry practice. You further acknowledge and agree that (a) no fiduciary, advisory or agency relationship between you and the Commitment Parties is intended to be or has been created in respect of any of the transactions contemplated by this Commitment Letter, irrespective of whether the Commitment Parties have advised or are advising you on other matters, (b) the Commitment Parties or the Initial Lenders, on the one hand, and you, on the other hand, have an arm’s length business relationship that does not directly or indirectly give rise to, nor do you rely on, any fiduciary duty on the part of the Commitment Parties in respect of the transactions

contemplated by this Commitment Letter, (c) you are capable of evaluating and understanding, and you understand and accept, the terms, risks and conditions of the transactions contemplated by this Commitment Letter, (d) you have been advised that the Commitment Parties are engaged in a broad range of transactions that may involve interests that differ from your interests and that the Commitment Parties do not have any obligation to disclose such interests and transactions to you by virtue of any fiduciary, advisory or agency relationship in respect of the transactions contemplated by this Commitment Letter, and (e) you waive, to the fullest extent permitted by law, any claims you may have against the Commitment Parties for breach of fiduciary duty or alleged breach of fiduciary duty, in each case, in connection with the transactions contemplated by this Commitment Letter, and agree that the Commitment Parties shall not have any liability (whether direct or indirect) to you in respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim on behalf of or in right of you, including your stockholders, employees or creditors. You shall consult with your own advisors concerning such matters and shall be responsible for making your own independent investigation and appraisal of the transactions contemplated hereby (including, without limitation, with respect to any consents needed in connection therewith), and the Commitment Parties shall not have any responsibility or liability to you with respect thereto. Any review by any of the Commitment Parties of the Company, the Transactions, the other transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of such Commitment Party and shall not be on behalf of you or any of your affiliates. Neither we nor any of our respective affiliates will use confidential information obtained from the Target, you or your or their respective affiliates or on your or their behalf by your or their respective representatives by virtue of the transactions contemplated hereby in connection with the performance of services for other persons, and neither we nor any of our respective affiliates will furnish any such information to such other persons. You also acknowledge that no Commitment Party has any obligation in connection with the Transactions to use, or to furnish to you or your subsidiaries, confidential information obtained from other companies or entities. Additionally, you acknowledge and agree that we are not advising you as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction (including, without limitation, with respect to any consents needed in connection with the transactions contemplated hereby).

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

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

The Company acknowledges that Bank of America currently is acting as administrative agent and a lender under the Existing ABL Facility and certain other Commitment Party Entities may be lenders under the Existing ABL Facility, and the Company’s and its affiliates’ rights and obligations under any

other agreement with any Commitment Party Entity or any of their respective affiliates (including the Existing ABL Facility) that currently or hereafter may exist are, and shall be, separate and distinct from the rights and obligations of the parties pursuant to this Commitment Letter, and none of such rights and obligations under such other agreements shall be affected by the Commitment Party Entities’ performance or lack of performance of services and agreements hereunder.

10. Expiration of Commitments. This Commitment Letter and the commitments of the Initial Lenders and the undertakings of the Arrangers set forth herein shall, in the event this Commitment Letter is accepted by you as provided in the last paragraph hereof, automatically terminate without further action or notice at the earliest of (i) 5:00 p.m. (Eastern) on the date that is 5 business days following that date that is 6 months after the date of the Original Commitment Letter (or 9 months after the date of the Original Commitment Letter if the End Date (as defined in the Acquisition Agreement) is extended pursuant to Section 9.1(c) of the Acquisition Agreement) if the Closing Date shall not have occurred by such time (the “Expiration Date”), unless you and we shall, in our sole discretion, agree to an extension, (ii) the termination of the Acquisition Agreement in accordance with its terms and (iii) the consummation of the Acquisition without the use of the Credit Facilities (in the case of the Senior Secured Bridge Facility, unless and to the extent the Senior Secured Notes or other “Securities” are issued in lieu of the Senior Secured Bridge Facility).

In addition, if the proceeds of the Escrow Notes (as defined in the Fee Letter) have been received and deposited into an escrow account, then immediately following receipt by the Lead Borrower of written notice from the escrow agent for the escrow account that all such proceeds have been received and are being held in such escrow account, the commitments in respect of the Senior Secured Bridge Facility shall automatically be reduced by the amount of the gross proceeds from the Escrow Notes.

11. Binding Obligations. Each of the parties hereto agrees that this Commitment Letter is a binding and enforceable agreement with respect to the subject matter contained herein, including the commercially reasonable negotiation of the Facilities Documentation by the parties hereto in a manner consistent with this Commitment Letter, it being understood and agreed that the funding of the Credit Facilities remains subject to conditions precedent as set forth in the Conditions Annex.

12. Survival. This paragraph and the indemnification, reimbursement, confidentiality, jurisdiction, governing law, no agency or fiduciary duty, venue, waiver of jury trial and syndication provisions contained herein and in the Fee Letter shall remain in full force and effect regardless of whether the Facilities Documentation shall be executed and delivered and notwithstanding the termination of this Commitment Letter or the commitments hereunder; provided that (a) if the Closing Date occurs, your obligations with respect to syndication shall survive until the expiration of the Syndication Period, (b) on the Closing Date, all provisions (other than in respect of the confidentiality, jurisdiction, governing law, no agency or fiduciary duty, venue and waiver of jury trial provisions) shall automatically be superseded by the Facilities Documentation to the extent covered thereby and you shall automatically be released from all liability in connection therewith at such time and (c) so long as the Closing Date has not occurred, you may terminate this Commitment Letter (other than in respect of the confidentiality, indemnification, reimbursement, jurisdiction, governing law, no agency or fiduciary duty, venue and waiver of jury trial provisions) upon written notice to the Arrangers at any time (subject to the preceding provisions).

13. Governing Law, Etc. This Commitment Letter and the Fee Letter supersede all prior agreements and understandings relating to the subject matter hereof. No party has been authorized by us to make any oral or written statements inconsistent with this Commitment Letter. This Commitment Letter and the Fee Letter shall not be assignable by you without our prior written consent, and any purported assignment without such consent shall be null and void, ab initio; provided that GS may, without notice to you, assign its rights and obligations under this Commitment Letter and the Fee Letter to Goldman Sachs

Lending Partners LLC. This Commitment Letter is intended to be for the benefit of the parties hereto and is not intended to confer any benefits upon, or create any rights in favor of, any person other than the parties hereto, the Lenders and, with respect to the indemnification provided under the heading “Indemnification,” each Indemnified Party. Notwithstanding the foregoing, the parties hereto agree that MLPF&S may, without notice to you, the Sponsor or the Company, assign its rights and obligations under this Commitment Letter and the Fee Letter to any other registered broker dealer wholly owned by Bank of America Corporation to which all or substantially all of Bank of America Corporation’s or any of its subsidiaries’ investment banking, commercial lending services or related businesses may be transferred following the date of this Commitment Letter. This Commitment Letter may be executed in separate counterparts and delivery of an executed signature page of this Commitment Letter by facsimile or electronic mail shall be effective as delivery of manually executed counterpart hereof. This Commitment Letter may only be amended or modified by an agreement in writing signed by each of you and us, and shall remain in full force and effect and not be superseded by any other documentation unless such other documentation is signed by each of you and us and expressly states that this Commitment Letter is superseded thereby. Any of us may place advertisements in financial or other newspapers and periodicals or on a home page or similar place for dissemination of information on the Internet or World Wide Web as such party may choose, and circulate similar promotional materials, after the closing of the Transactions in the form of a “tombstone” or otherwise describing the names of you and your affiliates (or any of them), and the amount, type and closing date of such Transactions, all at such party’s expense. This Commitment Letter shall be governed by, and construed and enforced 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 will be required thereby; provided, however, that (a) the interpretation of the definition of Company Material Adverse Effect and whether there shall have occurred a Company Material Adverse Effect, (b) whether the representations and warranties made with respect to the Target in the Acquisition Agreement are accurate and whether as a result of any inaccuracy thereof you have the right to terminate your obligations under the Acquisition Agreement, or to decline to consummate the Acquisition, and (c) whether the Acquisition has been consummated in accordance with the terms of the Acquisition Agreement, shall be determined in accordance with the laws of the State of Delaware without regard to conflict of laws principles that would result in the application of the laws of another jurisdiction. The parties hereby waive any right to trial by jury in any action, proceeding, suit, claim or counterclaim brought by or on behalf of any party related to or arising out of this Commitment Letter, the Fee Letter or the performance of services hereunder or thereunder. The parties hereto hereby submit to the exclusive jurisdiction of the federal and New York State courts located in New York County (and appellate courts thereof) in connection with any dispute related to this Commitment Letter, the Fee Letter or any of the matters contemplated hereby or thereby, and agree that service of any process, summons, notice or document by registered mail addressed to you or us at the addresses set forth on the signature pages hereto shall be effective service of process against you or us, as applicable, for any suit, action or proceeding relating to any such dispute. The parties hereto irrevocably and unconditionally waive any objection to the laying of such venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding has been brought in an inconvenient forum. A final judgment in any such suit, action or proceeding brought in any such court may be enforced in any other courts to whose jurisdiction you and we are or may be subject by suit upon judgment.

If you are in agreement with the foregoing, please indicate acceptance of the terms hereof by signing the enclosed counterpart of this Commitment Letter and returning it to the Arrangers, together with executed counterpart of the Fee Letter. This Commitment Letter, the commitments of the Initial Lenders and the undertakings of the Arrangers set forth herein, shall become effective when signed counterparts of this Commitment Letter and the Fee Letter from each of the parties listed on the signature pages hereto shall have been delivered to the Arrangers in accordance with the terms of the immediately preceding sentence.

[Signature Pages Follow]


Sincerely,

BANK OF AMERICA, N.A.

By:	/s/ Darryl Kuriger
	Name:	Darryl Kuriger
	Title:	Managing Director

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED

By:	/s/ Darryl Kuriger
	Name:	Darryl Kuriger
	Title:	Managing Director