GOLDMAN SACHS BANK USA 200 West Street New York,New York 10282-2198

EX-10.1 3 d928031dex101.htm EX-10.1 EX-10.1

Exhibit 10.1

EXECUTION VERSION

GOLDMAN SACHS BANK USA

200 West Street

New York, New York 10282-2198

GUGGENHEIM SECURITIES, LLC

330 Madison Avenue

New York, New York 10017

May 18, 2015

Ascena Retail Group, Inc.

933 MacArthur Boulevard

Mahwah, New Jersey 07430

Attention: Robb Giammatteo

Project Avian

Commitment Letter

Ladies and Gentlemen:

Ascena Retail Group, Inc. (“you” or the “Borrower”) has advised Goldman Sachs Bank USA (“GS Bank” and, together with its affiliates, “Goldman Sachs”), each of the entities listed on Schedule A hereto (collectively, the “Guggenheim Commitment Entities” and each, individually, a “Guggenheim Commitment Entity”) and Guggenheim Securities, LLC (“Guggenheim Securities” and, together with the Guggenheim Commitment Entities and their respective affiliates, “Guggenheim”; Guggenheim Securities, together with the Guggenheim Commitment Entities and GS Bank, the “Commitment Parties”, “we” or “us”) that you intend to acquire (the “Acquisition”) an entity identified to us as “Avian” (“Avian” or the “Target”; the Target collectively with its subsidiaries, the “Acquired Business”). The Acquisition will be effected through the merger (the “Merger”) of Avian Acquisition Corp. (a newly formed wholly owned subsidiary of the Borrower) (“Merger Sub”) with and into the Target pursuant to Section 251 of the Delaware General Corporation Law, with the Target surviving the Merger as your direct or indirect wholly-owned subsidiary. In connection with the Acquisition, the Borrower’s and its subsidiaries’ existing revolving credit facilities (the “Existing Credit Facilities”) and all existing indebtedness of the Acquired Business (other than Retained Debt, as defined in Annex III hereto), will, in each case, be repaid in full, all commitments thereunder will be terminated and the security interests with respect thereto will be released (the “Refinancing”); provided that the Borrower may elect, at its option and subject to the conditions set forth in Annex III hereto, to permit the Existing Credit Facilities and/or the existing asset based revolving credit facilities of the Acquired Business (collectively, as may be amended, amended and restated, supplemented or otherwise modified, so long as after giving effect to any such amendment, amendment and restatement, supplement or other modification on or after the date hereof, the maximum aggregate principal amount available to the Borrower, the Target and their respective subsidiaries thereunder does not exceed in the aggregate $700,000,000 plus up to $100,000,000 of incremental facilities thereunder, the “Existing ABL Facilities”) to remain outstanding in lieu of incurring the ABL Facility described below, and in connection therewith, at its option, to elect to terminate the commitments of GS Bank hereunder with respect to the ABL Facility. The Borrower, the Acquired Business and their respective subsidiaries are sometimes collectively referred to herein as the “Companies”.

You have also advised us that you intend to finance the Acquisition, the Refinancing, the costs and expenses related to the Transaction (as hereinafter defined) and the ongoing working capital and other general corporate purposes of the Companies after consummation of the Acquisition from the following sources (and that no financing other than the financing described herein will be required in connection with the Transaction): (a) $1,800,000,000 aggregate principal amount of senior secured term B loans (the “Term Loan Facilities”), (b) a $600,000,000 asset-based revolving facility of the Borrower and certain of its subsidiaries (the “ABL Facility” and, collectively with the Term Loan Facilities, the “Facilities”) and (c) common equity interests of the Borrower to be issued as a portion of the consideration for the Acquisition in accordance with the terms of the Acquisition Agreement (the “Equity Issuance”). Finally, you have advised us that, in addition and at your election, you may elect to issue senior unsecured notes with a tenor longer than that of the Term Loan Facilities or senior secured notes (that are pari passu with the Term Loan Facilities, subject to customary intercreditor terms reasonably acceptable to the Term Administrative Agent and the Borrower) with a tenor equal to or longer than that of the Term Loan Facilities (“Senior Notes”) in an underwritten offering, Rule 144A offering or other private placement in lieu of a portion of the Term Loan Facilities, in which case the principal amount of the Term Loan Facilities shall be reduced on a dollar-for-dollar basis by the net proceeds received from the issuance of such Senior Notes and the marketing of any such Senior Notes shall be coordinated with the syndication of the Facilities in a mutually agreed-upon manner. Notwithstanding the foregoing, regardless of whether you elect to offer or issue, or engage in discussions with respect to the offer or issuance of, Senior Notes or engage an investment bank in connection with the offering or issuance of Senior Notes, our commitments hereunder shall not be reduced or otherwise affected unless and until such Senior Notes are issued by you in an underwritten offering, Rule 144A offering or other private placement and you actually receive the proceeds thereof, in which case the aggregate commitments with respect to the Term Loan Facilities shall be reduced on a dollar-for-dollar basis by the net cash proceeds actually received by you in connection with the issuance of Senior Notes. It shall not be a condition to our commitments hereunder that you offer, issue or attempt to offer or issue Senior Notes or engage an investment bank in connection with the offering or issuance of Senior Notes or that, having elected to attempt to offer or issue Senior Notes, you complete such offering or issuance. The Acquisition, the Refinancing (or the continuation of the Existing ABL Facilities, if any), the entering into and initial funding of the Term Loan Facilities and the ABL Facility, the Equity Issuance and the issuance of the Senior Notes, if any, and all related transactions are hereinafter collectively referred to as the “Transaction”. The date of consummation of the Acquisition is referred to herein as the “Closing Date”.

1. Commitments. In connection with the foregoing, (a) GS Bank is pleased to advise you of its commitment to provide 100% of the principal amount of the ABL Facility (in such capacity, the “Initial ABL Lender”) subject to the conditions set forth in Annexes I and III hereto (the “ABL Facility Summary of Terms”); (b) (i) GS Bank is pleased to advise you of its several and not joint commitment to provide $1,300,000,000 of the principal amount of the Term Loan Facilities and (ii) with respect to the remaining $500,000,0000 of the Term Loan Facilities, each Guggenheim Commitment Entity is pleased to advise you of its several and not joint commitment to provide the portion of such $500,000,000 principal amount of the Term Loan

Facilities set forth next to such Guggenheim Commitment Entity’s name on Schedule A hereto (in such capacities, the “Initial Term Loan Lenders” and, together with the Initial ABL Lender, the “Initial Lenders”), in each case, subject to the conditions set forth in Annexes II and III hereto (the “Term Loan Facilities Summary of Terms” and, together with the ABL Facility Summary of Terms, the “Summaries of Terms” and, together with this letter, the “Commitment Letter”); (c)(i) GS Bank is pleased to advise you of its willingness, and you hereby engage GS Bank to act as sole lead arranger and sole bookrunning manager (in such capacity, the “ABL Lead Arranger”) for the ABL Facility, and in connection therewith to form a syndicate of lenders for the ABL Facility (collectively, the “ABL Lenders”), in consultation with you and reasonably acceptable to you and (ii) each of GS Bank and Guggenheim Securities is pleased to advise you of its willingness, and you hereby engage each of GS Bank and Guggenheim Securities to act as joint lead arrangers and joint bookrunning managers (in such capacities, the “Term Lead Arrangers” and, together with the ABL Lead Arranger, collectively the “Lead Arrangers”) for the Term Loan Facilities, and in connection therewith to form a syndicate of lenders for the Term Loan Facilities (collectively, the “Term Lenders” and, collectively with the ABL Lenders, the “Lenders”), in consultation with you and reasonably acceptable to you. It is understood and agreed that (w) GS Bank shall have “top left” placement in any and all marketing materials or documentation relating to each of the Facilities and shall have the roles and responsibilities customarily associated with such placement, (x) Guggenheim Securities shall have “top right” placement in any and all marketing materials or documentation relating to the Term Loan Facilities, (y) GS Bank shall act as administrative agent for the ABL Facility (in such capacity, the “ABL Administrative Agent”) and (z) GS Bank shall act as administrative agent for the Term Loan Facilities (in such capacity, the “Term Administrative Agent” and, together with the ABL Administrative Agent, the “Administrative Agents” and each, an “Administrative Agent”). Notwithstanding anything to the contrary contained herein, the commitments of the Initial Lenders with respect to the initial funding of the Facilities will be subject only to the satisfaction (or waiver by the Initial Lenders) of the conditions precedent set forth in Section 5 hereof. All capitalized terms used and not otherwise defined herein shall have the same meanings as specified therefor in the Summaries of Terms.

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 paid to any Lender (as defined below) in order to obtain its commitment to participate in the Facilities unless you and we shall so agree.

2. Syndication. The Lead Arrangers intend to commence syndication of the Facilities promptly after your acceptance of the terms of this Commitment Letter and the Fee Letter (as hereinafter defined); provided that we agree not to syndicate our commitments to certain banks, financial institutions and other institutional lenders and any competitors (or Known Affiliates (as defined below) of competitors) of the Companies, in each case, that have been specified to us by you in writing prior to the date hereof (collectively, “Disqualified Lenders”); provided, further, that you, upon reasonable notice to us after the date hereof, shall be permitted to supplement in writing the list of persons that are Disqualified Lenders to the extent such supplemented person is or becomes a competitor or a Known Affiliate of a competitor of the Companies, which supplement shall be in the form of a list provided to us and become effective upon delivery to us, but which supplement shall not apply retroactively to disqualify

any parties that have previously acquired an assignment in the loans under any of the Facilities. As used herein, “Known Affiliates” of any person means, as to such person, known affiliates readily identifiable by name, but excluding any affiliate that is a bona fide debt fund or investment vehicle that is primarily engaged in, or that advises funds or other investment vehicles that are engaged in, making, purchasing, holding or otherwise investing in commercial loans, bonds or similar extensions of credit or securities in the ordinary course and with respect to which the Disqualified Lender does not, directly or indirectly, possess the power to direct or cause the direction of the investment policies of such entity. 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. You agree, prior to the Syndication Date (as hereinafter defined), to actively assist, and to use commercially reasonable efforts to cause the Acquired Business to actively assist, the Lead Arrangers in achieving a syndication of each of the Facilities that is reasonably satisfactory to the Lead Arrangers and you until the Syndication Date (as defined below); provided that, notwithstanding the Lead Arrangers’ 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 shall not be a condition to such Initial Lender’s commitments and (ii) (a) except as you in your sole discretion may otherwise agree in writing or with respect to assignments made by GS Bank to Goldman Sachs Lending Partners LLC (“GSLP”), 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; (b) other than with respect to assignments made by GS Bank to GSLP, no assignment or novation shall become effective with respect to all or any portion of any Initial Lender’s commitments in respect of the Facilities until after the initial funding of the Facilities; and (c) each Initial Lender 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 the initial funding under the Facilities has been made. Such assistance shall include (a) your providing and (subject to customary non-reliance agreements) causing your advisors to provide, and using commercially reasonable efforts to cause the Acquired Business, its subsidiaries and its advisors to provide, the Lead Arrangers and the Lenders upon request with all information reasonably deemed necessary by the Lead Arrangers to complete such syndication, including, but not limited to (x) information and evaluations prepared by you, the Acquired Business and your and its advisors, or on your or its behalf, relating to the Transaction as may be reasonably requested by us (including the Projections (as hereinafter defined), (y) customary forecasts prepared by management of the Borrower of balance sheets, income statements and cash flow statements for each fiscal quarter for the first twelve months following the Closing Date and for each year commencing with the first fiscal year following the Closing Date and for each of the succeeding six fiscal years thereafter, and (z) your using commercially reasonable efforts to prepare customary availability forecasts of the Companies for the ABL Facility as of the last day of each fiscal month for the

first twelve months following the Closing Date and to provide the ABL Lead Arranger and its designees with sufficient access to the Companies to complete customary field examinations and inventory appraisals as promptly as practicable after the date hereof; (b) your preparation of a customary information memorandum with respect to each of the Facilities (each, an “Information Memorandum”) and other customary materials to be used in connection with the syndication of each such Facility (collectively with the Summaries of Terms and any additional summary of terms prepared for distribution to Lenders, the “Information Materials”); (c) your using commercially reasonable efforts to make your management available to participate in the marketing of the Facilities; (d) your using commercially reasonable efforts to ensure that the syndication efforts of the Lead Arrangers benefit materially from your existing lending relationships; (e) your using commercially reasonable efforts to obtain, prior to the launch of primary syndication of the Term Loan Facilities, monitored public corporate credit or family ratings (but not any specific rating) for you after giving effect to the Transaction and ratings of the Term Loan Facilities from Moody’s Investors Service, Inc. (“Moody’s”) and Standard & Poor’s Financial Services LLC (“S&P”) (collectively, the “Ratings”); (f) until the Syndication Date, your ensuring, and with respect to the Acquired Business, using commercially reasonable efforts to ensure, that none of the Companies shall syndicate or issue, attempt to syndicate or issue, announce or authorize the announcement of the syndication or issuance of, or engage in discussions concerning the syndication or issuance of, any competing debt of the Companies (other than the Facilities or the Senior Notes (so long as the marketing of such Senior Notes is coordinated with the syndication for the Facilities in a mutually acceptable manner)), including any renewals or refinancings of any existing debt that, in the reasonable judgment of the Lead Arrangers, could reasonably be expected to materially and adversely affect the primary syndication of the Facilities without the prior written consent (not to be unreasonably withheld) of the Lead Arrangers (it being understood that ordinary course working capital facilities, ordinary course capital leases, letters of credit, purchase money and equipment financings, and borrowings under the existing revolving credit facilities of the Borrower or the Target, as applicable, shall be permitted, and the Borrower or the Target shall be permitted to proceed in furtherance of continuing the Existing ABL Facilities); and (g) your otherwise assisting the Lead Arrangers in their syndication efforts, including by making appropriate officers and advisors of you, and using commercially reasonable efforts to make the officers and advisors of the Acquired Business, available from time to time upon reasonable advance notice to attend and make presentations regarding the business and prospects of the Companies and the Transaction at one or more meetings of prospective Lenders. 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 (g) 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.

It is understood and agreed that GS Bank will manage and control all aspects of the syndication of the Facilities in consultation with you and Guggenheim Securities and, as to the selection of Lenders, with your approval (such approval not to be unreasonably withheld or delayed), and any titles offered to prospective Lenders, when commitments will be accepted and the final allocations of the commitments among the Lenders. It is understood that no Lender participating in the Facilities will receive compensation from you in order to obtain its commitment, except on the terms contained herein and in the Summaries of Terms, without the

consent of the Lead Arrangers. It is also understood and agreed that the amount and distribution of the fees among the Lenders will be at the sole and absolute discretion of the Lead Arrangers. It is further understood that the Initial Lenders’ commitments hereunder are not conditioned upon the syndication of, or receipt of commitments in respect of, the Facilities and in no event shall the commencement of successful completion of syndication of the Facilities constitute a condition to availability of the Facilities on the Closing Date.

3. Information Requirements. You hereby represent and warrant (with respect to Information relating to the Acquired Business, to the best of your knowledge) that (a) all written factual information, other than Projections (as defined below) and other forward-looking information or information of a general economic or industry nature, that has been or is hereafter made available to the Lead Arrangers or any of the Lenders by or on behalf of you or any of your representatives in connection with any aspect of the Transaction (including such information, to the best of your knowledge, relating to the Acquired Business) (the “Information”) is and will be complete and correct when furnished and taken as a whole, in all material respects, and does not and will not, when furnished and taken as a whole, contain any untrue statement of a fact or omit to state a fact necessary to make the statements contained therein, in the light of the circumstances under which they were made, not materially misleading (after giving effect to all supplements and updates with respect thereto) and (b) all financial projections concerning the Companies that have been or are hereafter made available to the Lead Arrangers or any of the Lenders by or on behalf of you or any of your representatives (the “Projections”) (to the best of your knowledge, in the case of Projections provided by the Acquired Business) have been or will be prepared in good faith based upon assumptions believed by you to be reasonable at the time provided (it being understood and agreed that the Projections are as to future events and are not to be viewed as facts or a guarantee of financial performance or achievement, that the Projections are subject to significant uncertainties and contingencies, many of which are beyond your control, and that actual results may differ from the Projections and such differences may be material). You agree that if at any time prior to the later of (a) the earlier of (i) the date on which a Successful Syndication (as defined in the Fee Letter) is achieved and (ii) 60 days following the Closing Date (the earlier of such dates, the “Syndication Date”) and (b) the Closing Date, any of the representations in the preceding sentence would be incorrect in any material respect if the Information and Projections were being furnished, and such representations were being made, at such time, then you will promptly supplement, or cause to be supplemented (or in the case of Information or Projections relating to the Acquired Business, you will promptly notify the Lead Arrangers upon becoming aware that any such Information or Projections are incorrect in any material respect and will use commercially reasonable efforts to supplement), the Information and Projections so that such representations (to the best of your knowledge, in the case of the Acquired Business) will be correct in all material respects at such time. In issuing this commitment and in arranging and syndicating each of the Facilities, the Commitment Parties are and will be using and relying on the Information and the Projections without independent verification thereof. For the avoidance of doubt, nothing in this paragraph will constitute a condition to the availability of the Facilities on the Closing Date.

You acknowledge that (a) the Lead Arrangers on your behalf will make available Information Materials to the proposed syndicates of Lenders by posting the Information Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain prospective Lenders (such Lenders, “Public Lenders”; all other Lenders, “Private Lenders”)

may have personnel that do not wish to receive material non-public information (within the meaning of the United States federal securities laws, “MNPI”) with respect to the Companies, their respective affiliates or any other entity, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such entities’ securities. If requested, you will assist the Lead Arrangers in preparing an additional version of the Information Materials not containing MNPI (the “Public Information Materials”) to be distributed to prospective Public Lenders.

Before distribution of any Information Materials (a) to prospective Private Lenders, you shall provide the Lead Arrangers with a customary letter authorizing the dissemination of the Information Materials; and (b) to prospective Public Lenders, you shall provide the Lead Arrangers with a customary letter authorizing the dissemination of the Public Information Materials and confirming the absence of MNPI therefrom. In addition, you hereby agree that (x) you will use commercially reasonable efforts at the request of the Lead Arrangers or any Administrative Agent (or their respective affiliates) to identify that portion of the Information Materials that may be distributed to the Public Lenders by clearly and conspicuously marking the same as “PUBLIC”; (y) all Information Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor”; and (z) the Lead Arrangers and the Administrative Agents (and their respective affiliates) shall be entitled to treat any Information Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investor.”

You agree that the Lead Arrangers and the Administrative Agents (and their respective affiliates) on your behalf may distribute the following documents to all prospective Lenders, unless you advise the Lead Arrangers and Administrative Agents in writing (including by email) within a reasonable time prior to their intended distributions that such material should only be distributed to prospective Private Lenders: (a) administrative materials for prospective Lenders such as lender meeting invitations and funding and closing memoranda, (b) notifications of changes to the terms of the Facilities and (c) drafts approved in writing by you and the Administrative Agents (or their respective affiliates) and final versions of definitive documents with respect to the Facilities. If you advise the Lead Arrangers and the Administrative Agents that any of the foregoing items should be distributed only to Private Lenders, then the Lead Arrangers and the Administrative Agents will not distribute such materials to Public Lenders without further discussions with you. You agree that Information Materials made available to prospective Public Lenders in accordance with this Commitment Letter with respect to which you have had a reasonable time to review shall not contain MNPI.

4. Fees and Indemnities.

(a) You agree to reimburse the Commitment Parties from time to time upon receipt of a reasonably detailed invoice therefor for all reasonable and documented out-of-pocket fees and expenses (including, but not limited to, the reasonable and documented out-of-pocket fees, disbursements and other out-of-pocket expenses of (x) one firm of lead counsel to the Commitment Parties (it being understood and agreed that Latham & Watkins LLP shall act as counsel to the Commitment Parties), (y) one firm of local counsel in each relevant jurisdiction reasonably retained by the Administrative Agents and (z) solely in the case of a conflict of interest, one additional counsel in each relevant jurisdiction to the affected Commitment Parties

similarly situated and reasonable and documented out-of-pocket due diligence expenses) incurred in connection with the Facilities, the syndication thereof, the preparation of the Credit Documentation (as defined below) therefor and the other transactions contemplated hereby, whether or not the Closing Date occurs or any of the Credit Documentation is executed and delivered or any extensions of credit are made under either of the Facilities. Such amounts shall be paid on the earlier of (i) the Closing Date or (ii) three (3) business days following the termination of this Commitment Letter as provided below. You acknowledge that the Administrative Agents 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. You agree to pay the fees set forth in the separate fee letter addressed to you dated the date hereof from the Commitment Parties (the “Fee Letter”).

(b) You also agree to indemnify and hold harmless each of the Commitment Parties, each other Lender and each of their affiliates, successors and assigns and their respective partners, officers, directors, employees, trustees, agents, advisors, controlling persons and other representatives (each, an “Indemnified Party”) from and against (and will reimburse each Indemnified Party as the same are incurred for) any and all claims, damages, losses, liabilities and reasonable and documented out-of-pocket expenses (including, without limitation, the reasonable and documented fees, disbursements and other charges of counsel to any Indemnified Party) (without duplication) of amounts payable by you pursuant to clause (a) above) that may be incurred by or asserted or awarded against any Indemnified Party, in each case arising out of or in connection with or by reason of (including, without limitation, in connection with any investigation, litigation or proceeding or preparation of a defense in connection therewith) (a) any aspect of the Transaction or any of the other transactions contemplated thereby or (b) the Commitment Letter, the Fee Letter, any of the Facilities, or any use made or proposed to be made with the proceeds thereof, except to the extent such claim, damage, loss, liability or expense (A) is found in a final non-appealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party’s gross negligence, bad faith or willful misconduct, (B) is found in a final non-appealable judgment by a court of competent jurisdiction to have arisen from a material breach of such Indemnified Party’s obligations hereunder or (C) arises from a proceeding by an Indemnified Party against an Indemnified Party (other than an action involving (i) alleged conduct by you or any of your affiliates or (ii) against an arranger or administrative agent in its capacity as such). In the case of any claim, litigation, investigation or proceeding (any of the foregoing, a “Proceeding”) to which the indemnity in this paragraph applies, such indemnity shall be effective whether or not such Proceeding is brought by you, your equity holders or creditors or an Indemnified Party, whether or not an Indemnified Party is otherwise a party thereto and whether or not any aspect of the Transaction is consummated. You also agree that (x) no Indemnified Party shall have any liability (whether direct or indirect, in contract or tort or otherwise) to you, the Acquired Business, or your or their subsidiaries or affiliates or to your or their respective equity holders or creditors or any other person arising out of, related to or in connection with any aspect of the Transaction, except to the extent of direct (as opposed to special, indirect, consequential or punitive) damages determined in a final non-appealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party’s (i) gross negligence, bad faith or willful misconduct or (ii) a material breach of such Indemnified Party’s obligations hereunder. It is further agreed that the Commitment Parties shall only have liability to you (as opposed to any other person), and that the

Commitment Parties shall be severally liable solely in respect of their respective commitments to the Facilities and agreements set forth herein, on a several, and not joint, basis with any other Lender. Notwithstanding any other provision of this Commitment Letter, no Indemnified Party shall be liable for any damages arising from the use by others of information or other materials obtained through electronic telecommunications or other information transmission systems, other than for direct, actual damages resulting from the gross negligence, bad faith or willful misconduct of such Indemnified Party as determined by a final non-appealable judgment of a court of competent jurisdiction. You shall not, without the prior written consent of an Indemnified Party, such consent not to be unreasonably withheld, effect any settlement of any pending or threatened Proceeding against an Indemnified Party in respect of which indemnity could have been sought hereunder by such Indemnified Party unless (i) such settlement includes an unconditional release of such Indemnified Party from all liability or claims that are the subject matter of such Proceeding and (ii) does not include any statement as to any admission of liability. You shall not be liable for any settlement of any Proceeding affected without your written consent (which consent shall not be unreasonably withheld); provided, however, that the foregoing indemnity will apply to any settlement if you were offered the ability to assume the defense of the action that was the subject matter of such settlement and elected not to so assume.

As you know, each of Goldman, Sachs & Co. and Guggenheim Securities has been retained by the Borrower (or one of its affiliates) as a financial advisor (in such capacity, a “Financial Advisor”) in connection with the Acquisition. Each of the parties hereto agrees to such retention, and further agrees not to assert any claim it might allege 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 a Financial Advisor or a Lead Arranger’s and/or its affiliates’ arranging or providing or contemplating arranging or providing financing for a competing bidder and, on the other hand, our and our affiliates’ respective relationships with you as described and referred to herein.

5. Conditions to Financing. The commitment of each Initial Lender with respect to the initial funding of each Facility is subject solely to (a) the satisfaction of each of the conditions set forth in Annex III hereto and (b) the execution and delivery of definitive credit documentation by all parties thereto with respect to each such Facility (except in the case of the ABL Facility, if the Existing ABL Facilities are used in lieu of such Facility) consistent with this Commitment Letter and the Fee Letter and subject to the Funds Certain Provisions and giving effect to the ABL Documentation Standard (as defined in Annex I) and the Term Loan Documentation Standard (as defined in Annex II, collectively, the “Documentation Standards”) (the “Credit Documentation”) prior to such initial funding.

Notwithstanding anything in this Commitment Letter, the Fee Letter, the Credit Documentation or any other letter agreement or other undertaking concerning the financing of the Transaction to the contrary, (a) the Credit Documentation shall be in a form such that the terms thereof do not impair availability of the Facilities on the Closing Date if the conditions in this Section 5 shall have been satisfied, (b) the only representations and warranties the accuracy of which shall be a condition to the availability of the Facilities on the Closing Date shall be those set forth in paragraph (ii) of Annex III hereto and (c) the only collateral the creation, validity or perfection of a security interest in which will be a condition to the availability of the Facilities on the Closing Date shall be the collateral described in paragraph (ii) of Annex III hereto. The provisions of this paragraph are referred to herein as the “Funds Certain Provisions”.

Each of the parties hereto agrees that each of this Commitment Letter and 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)) with respect to the subject matter contained herein, including an agreement to negotiate in good faith the Credit Documentation by the parties hereto in a manner consistent with this Commitment Letter and, to the extent applicable, the Fee Letter, it being acknowledged and agreed that the funding of the Facilities is subject only to the conditions precedent as provided herein. For clarity, all terms referenced herein to being defined in the Credit Documentation shall be defined in accordance with the Documentation Standards.

6. Confidentiality and Other Obligations. This Commitment Letter and the Fee Letter and the contents hereof and thereof are confidential and may not be disclosed in whole or in part to any person or entity without the prior written consent of the Commitment Parties except (i) this Commitment Letter and the Fee Letter may be disclosed (A) on a confidential basis to your directors, officers, employees, accountants, attorneys and other representatives and professional advisors who need to know such information in connection with the Transaction and are informed of the confidential nature of such information, (B) pursuant to the order of any court or administrative agency in any pending legal or administrative proceeding, or otherwise as required by applicable law or stock exchange requirement or compulsory legal process (in which case you agree to inform the Commitment Parties promptly thereof prior to such disclosure to the extent permitted by applicable law), and (C) on a confidential basis to the directors, officers, employees, accountants, attorneys and other representatives and professional advisors of the Acquired Business; provided that the Fee Letter is redacted in a customary manner satisfactory to the Commitment Parties, (ii) Annex I and Annex II and the existence of this Commitment Letter and the Fee Letter (but not the contents of the Commitment Letter and the Fee Letter) may be disclosed to Moody’s, S&P and any other rating agency on a confidential basis, (iii) the aggregate amount of the fees (including upfront fees and original issue discount) payable under the Fee Letter may be disclosed as part of generic disclosure regarding sources and uses for closing of the Acquisition (but without disclosing any specific fees, market flex or other economic terms set forth therein or to whom such fees or other amounts are owed), (iv) the Commitment Letter and the Fee Letter may be disclosed on a confidential basis to your auditors for customary accounting purposes, including accounting for deferred financing costs, (v) Annex I and Annex II and the existence of this Commitment Letter and the Fee Letter (but not the contents of the Commitment Letter and the Fee Letter) may be disclosed in connection with the marketing and negotiation of the Senior Notes and the continuation of the Existing ABL Facilities, (vi) you may disclose the Commitment Letter (but not the Fee Letter) and its contents in any information memorandum or syndication distribution, as well as in any proxy statement or other public filing relating to the Acquisition or the Facilities, and (vii) the Commitment Letter and Fee Letter may be disclosed to a court, tribunal or any other applicable administrative agency or judicial authority in connection with the enforcement of your rights hereunder (in which case you agree to inform the Commitment Parties promptly thereof prior to such disclosure to the extent permitted by applicable law). This paragraph shall terminate on the second anniversary of the date of the Commitment Letter.

Each Commitment Party shall use all confidential information provided to it by or on behalf of you hereunder solely for the purpose of providing the services which are the subject of this Commitment Letter and otherwise in connection with the Transaction and shall treat confidentially all such information; provided, however, that nothing herein shall prevent any Commitment Party from disclosing any such information (i) pursuant to the order of any court or administrative agency or in any pending legal or administrative proceeding, or otherwise as required by applicable law or compulsory legal process (in which case such Commitment Party agrees to inform you promptly thereof to the extent not prohibited by law, rule or regulation), (ii) upon the request or demand of any regulatory authority having jurisdiction over such Commitment Party or any of its affiliates, (iii) to the extent that such information becomes publicly available other than by reason of disclosure in violation of this agreement by such Commitment Party, (iv) to such Commitment Party’s affiliates, employees, legal counsel, independent auditors and other experts, professionals or agents who need to know such information in connection with the Transaction and are informed of the confidential nature of such information, (v) for purposes of establishing a “due diligence” defense, (vi) 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 to you, (vii) to the extent that such information is independently developed by such Commitment Party, (viii) to potential Lenders, participants, assignees or any direct or indirect contractual counterparties to any swap or derivative transaction relating to you or your obligations under the Facilities (other than a Disqualified Lender), in each case, who agree to be bound by the terms of this paragraph (or language not less restrictive than this paragraph or as otherwise reasonably acceptable to you and such Commitment Party, including as may be agreed in any confidential information memorandum or other marketing material), (ix) to Moody’s and S&P; provided that such information is limited to Annex I and Annex II and is supplied only on a confidential basis, or (x) with your prior written consent. This paragraph shall terminate on the earlier of (a) the initial funding under the Facilities and (b) the second anniversary of the date of the Commitment Letter.

As you know, each of Goldman Sachs and Guggenheim is a full service financial institution engaged, either directly or through its affiliates, in a broad array of activities, including commercial and investment banking, financial advisory, market making and trading, investment management (both public and private investing), investment research, principal investment, financial planning, benefits counseling, risk management, hedging, financing, brokerage and other financial and non-financial activities and services globally. In the ordinary course of their various business activities, each of Goldman Sachs and Guggenheim and funds or other entities in which Goldman Sachs and Guggenheim invests or with which they co-invest, may at any time purchase, sell, hold or vote long or short positions and investments in securities, derivatives, loans, commodities, currencies, credit default swaps and other financial instruments for their own account and for the accounts of their customers. In addition, each of Goldman Sachs and Guggenheim may at any time communicate independent recommendations and/or publish or express independent research views in respect of such assets, securities or instruments. Any of the aforementioned activities may involve or relate to assets, securities and/or instruments of the Borrower, the Acquired Business and/or other entities and persons which may (i) be involved in transactions arising from or relating to the arrangement contemplated by this Commitment Letter or (ii) have other relationships with the Borrower or its affiliates. In addition, each of Goldman Sachs and Guggenheim may provide investment banking, commercial banking, underwriting and financial advisory services to such other entities and persons. The

arrangement contemplated by this Commitment Letter may have a direct or indirect impact on the investments, securities or instruments referred to in this paragraph, and employees working on the financing contemplated hereby may have been involved in originating certain of such investments and those employees may receive credit internally therefor. Although either or both of Goldman Sachs and Guggenheim in the course of such other activities and relationships may acquire information about the transaction contemplated by this Commitment Letter or other entities and persons which may be the subject of the financing contemplated by this Commitment Letter, neither Goldman Sachs nor Guggenheim shall have any obligation to disclose such information, or the fact that Goldman Sachs or Guggenheim, as the case may be, is in possession of such information, to the Borrower or to use such information on the Borrower’s behalf.

Consistent with their respective policies to hold in confidence the affairs of their respective customers, neither Goldman Sachs nor Guggenheim will furnish confidential information obtained from you by virtue of the transactions contemplated by this Commitment Letter to any of their respective other customers. Furthermore, you acknowledge that neither Goldman Sachs nor any of its affiliates nor Guggenheim nor any of its affiliates has an obligation to use in connection with the transactions contemplated by this Commitment Letter, or to furnish to you, confidential information obtained or that may be obtained by them from any other person.

In connection with all aspects of each transaction contemplated by this Commitment Letter, you acknowledge and agree, and acknowledge your affiliates’ understanding, that: (i) each of the Facilities and any related arranging or other services described in this Commitment Letter is an arm’s-length commercial transaction between you and your affiliates, on the one hand, and the Commitment Parties, on the other hand, (ii) the Commitment Parties have not provided any legal, accounting, regulatory or tax advice with respect to any of the transactions contemplated hereby and you have consulted your own legal, accounting, regulatory and tax advisors to the extent you have deemed appropriate, (iii) you are capable of evaluating, and understand and accept, the terms, risks and conditions of the transactions contemplated hereby, (iv) in connection with the financing transactions contemplated hereby and the process leading to such transactions, each of the Commitment Parties has been, is, and will be acting solely as a principal and has not been, is not, and will not be acting as an advisor, agent or fiduciary for you or any of your affiliates, stockholders, creditors or employees or any other party, (v) the Commitment Parties have not assumed and will not assume an advisory, agency or fiduciary responsibility in your or your affiliates’ favor with respect to any of the financing transactions contemplated hereby or the process leading thereto, and the Commitment Parties have no obligation to you or your affiliates with respect to the financing transactions contemplated hereby except those obligations expressly set forth in this Commitment Letter, and (vi) the Commitment Parties and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from yours and those of your affiliates, and the Commitment Parties have no obligation to disclose any of such interests to you or your affiliates. To the fullest extent permitted by law and without limiting the provisions of Section 4(b), you hereby waive and release any claims that you may have against the Commitment Parties with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any financing transaction contemplated by this Commitment Letter.

The Commitment Parties 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 “U.S.A. Patriot Act”), each of them is required to obtain, verify and record information that identifies you and the Guarantors, which information includes the name and address of such person and other information that will allow the Commitment Parties, as applicable, to identify each such person in accordance with the U.S.A. Patriot Act.

7. Survival of Obligations. The provisions of Sections 2, 3, 4, 6 and 8 and the Fee Letter shall remain in full force and effect regardless of whether any Credit Documentation shall be executed and delivered and notwithstanding the termination of this Commitment Letter or any commitment or undertaking of the Commitment Parties hereunder, provided that (i) the provisions of Sections 2 and 3 shall not survive if the commitments and undertakings of the Commitment Parties are terminated by any party hereto prior to the effectiveness of any of the Facilities and (ii) if any of the Facilities close and the Credit Documentation is executed and delivered the provisions of Section 2 and the second sentence of the first paragraph of Section 3 shall survive only until the Syndication Date.

8. Miscellaneous. This Commitment Letter and the Fee Letter may be executed in multiple counterparts and by different parties hereto in separate counterparts, all of which, taken together, shall constitute an original. Delivery of an executed counterpart of a signature page to this Commitment Letter or the Fee Letter by telecopier, facsimile or other electronic transmission (e.g., a “pdf” or “tiff”) shall be effective as delivery of a manually executed counterpart thereof. Headings are for convenience of reference only and shall not affect the construction of, or be taken into consideration when interpreting, this Commitment Letter or the Fee Letter.

This Commitment Letter and the Fee Letter shall be governed by, and construed in accordance with, the laws of the State of New York; provided that, notwithstanding the foregoing, it is understood and agreed that (a) interpretation of the definition of “Company Material Adverse Effect” (as defined in Annex III) or the equivalent term under the Acquisition Agreement and whether a Company Material Adverse Effect (or the equivalent term) has occurred, (b) the determination of the accuracy of any Acquisition Agreement Representation (as defined in Annex III) and whether as a result of any inaccuracy thereof you have the right (taking into account any applicable cure provisions) to terminate your obligations under the Acquisition Agreement or decline to consummate the Acquisition and (c) the determination of whether the Acquisition has been consummated in accordance with the terms of the Acquisition Agreement, and all claims and causes of action arising in connection therewith in each case shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to laws that may be applicable under conflicts of laws principles (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware. Each party hereto hereby irrevocably waives any and all right to trial by jury in any action, proceeding or counterclaim (whether based on contract, tort or otherwise) arising out of or relating to this Commitment Letter, the Fee Letter, the Transaction and the other transactions contemplated hereby and thereby or the actions of the Commitment Parties in the negotiation, performance or enforcement hereof. Each party hereto hereby irrevocably and unconditionally submits 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 New York City in

respect of any suit, action or proceeding arising out of or relating to the provisions of this Commitment Letter, the Fee Letter, the Transaction and the other transactions contemplated hereby and thereby and irrevocably agrees that all claims in respect of any such suit, action or proceeding may be heard and determined in any such court. The parties hereto agree that service of any process, summons, notice or document by registered mail addressed to you shall be effective service of process against you for any suit, action or proceeding relating to any such dispute. Each party hereto waives, to the fullest extent permitted by applicable law, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceedings brought in any such court, and any claim that any such suit, action or proceeding brought in any such court 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 the applicable party is or may be subject by suit upon judgment.

This Commitment Letter, together with the Fee Letter, embodies the entire agreement and understanding among the parties hereto and your affiliates with respect to the Facilities and supersedes all prior agreements and understandings relating to the subject matter hereof. No party has been authorized by the Commitment Parties to make any oral or written statements that are inconsistent with this Commitment Letter. Neither this Commitment Letter (including the attachments hereto) nor the Fee Letter may be amended or any term or provision hereof or thereof waived or modified except by an instrument in writing signed by each of the parties hereto.

This Commitment Letter may not be assigned by you without our prior written consent (and any purported assignment without such consent will be null and void), is intended to be solely 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 (and the Indemnified Parties). Each Commitment Party may assign its commitment hereunder, in whole or in part, to any of its affiliates (including, without limitation, in the case of GS Bank, to GSLP) or, subject to the provisions of this Commitment Letter, to any Lender; provided that, other than with respect to an assignment (i) by GS Bank to GSLP or (ii) to which you otherwise consent in writing (which consent, in the case of an assignment by a Commitment Party to its affiliates, shall not be unreasonably withheld by you), such Commitment Party shall not be released from the portion of its commitment hereunder so assigned to the extent such assignee fails to fund the portion of the commitment assigned to it on the Closing Date notwithstanding the satisfaction of the conditions to funding set forth herein. Notwithstanding the foregoing, any and all obligations of, and services to be provided by, a Commitment Party hereunder (including, without limitation, any such Commitment Party’s commitment with respect to the Facilities) may be performed and any and all rights of a Commitment Party hereunder may be exercised by or through any of their respective affiliates or branches and, in connection with such performance or exercise, such Commitment Party may exchange with such affiliates or branches information concerning you and your affiliates that may be the subject of the transactions contemplated hereby (subject to the confidentiality provisions herein) and, to the extent so employed, such affiliates and branches shall be entitled to the benefits afforded to the Commitment Parties hereunder; provided that nothing in this sentence shall release or excuse, or shall otherwise be deemed to release or excuse, any Commitment Party from its obligations and commitments hereunder.

Please indicate your acceptance of the terms of the Facilities set forth in this Commitment Letter and the Fee Letter by returning to the Lead Arrangers executed counterparts of this Commitment Letter and the Fee Letter not later than 9:00 a.m. (New York City time) on May 18, 2015, whereupon the undertakings of the parties with respect to the Facilities shall become effective to the extent and in the manner provided hereby. This offer shall terminate with respect to the Facilities if not so accepted by you at or prior to that time. Thereafter, all commitments and undertakings of the Commitment Parties hereunder will expire automatically without any further action by any party hereto, unless extended by us in our sole discretion, on the earliest of (a) 11:59 p.m., New York City time, on February 17, 2016, unless the Closing Date occurs on or prior thereto, (b) as to any Facility, the consummation of the Acquisition without the use of such Facility and (c) the termination of the Acquisition Agreement.

This Commitment Letter amends and restates, and supersedes and replaces, in its entirety that certain Commitment Letter by and between GS Bank and you dated May 17, 2015 and shall be deemed to be an assignment to, and an assumption by, the Guggenheim Commitment Entities of the portion of the commitments in respect of the Term Loan Facilities committed to by the Guggenheim Commitment Entities hereunder (and for which portion, for the avoidance of doubt, GS Bank shall have no further liability or obligation).

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We are pleased to have the opportunity to work with you in connection with this important financing.


Very truly yours,

GOLDMAN SACHS BANK USA

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