J.P. MORGAN SECURITIES INC. JPMORGAN CHASE BANK, N.A. 270 Park Avenue New York, New York 10017

J.P. MORGAN SECURITIES INC. JPMORGAN CHASE BANK, N.A. 270 Park Avenue New York, New York 10017

UBS LOAN FINANCE LLC 677 Washington Boulevard Stamford, Connecticut 06901   UBS SECURITIES LLC 299 Park Avenue New York, New York 10171

CREDIT SUISSE, CAYMAN ISLANDS BRANCH CREDIT SUISSE SECURITIES (USA) LLC Eleven Madison Avenue New York, New York 10010

 

BE Aerospace, Inc.

1400 Corporate Center Way

Wellington, FL 33414

 

Attention:  Mr. Thomas P. McCaffrey

 

 

 

Ladies and Gentlemen:

 

You have advised JPMorgan Chase Bank, N.A. (“JPMCB”), UBS Loan Finance LLC (“UBS”), Credit Suisse, Cayman Islands Branch (“CS” and, together with JPMCB and UBS, each an “Initial Lender” and, collectively the “Initial Lenders”), J.P. Morgan Securities Inc. (“JPMorgan”), UBS Securities LLC (“UBSS”) and Credit Suisse Securities (USA) LLC (“CSS” and, together with JPMorgan and UBSS, the “Joint Lead Arrangers”) (the Initial Lenders and the Joint Lead Arrangers being collectively referred to herein as the “Commitment Parties” and each a “Commitment Party”) that BE Aerospace, Inc., a Delaware corporation (the “Borrower” or “you”), intends to consummate the Transactions (such term and each other capitalized term used but not defined herein having the meanings assigned to them in the Term Sheet (as defined below)).

 

In connection with the Transactions, JPMCB is pleased to advise you of its commitment to provide up to $516,666,666.67 of the Facilities, UBS is pleased to advise you of its commitment to provide up to $516,666,666.67 of the Facilities and CS is pleased to advise you of its commitment to provide up to $516,666,666.66 of the Facilities, each on a several but not joint basis, each pro rata among the tranches of the Facilities and each upon the terms and subject to the conditions set forth or referred to in this Commitment Letter and in the Summary of Principal Terms and Conditions attached hereto as Exhibit A (the “Term Sheet”).

 

You hereby appoint JPMorgan, UBSS and CSS to act, and JPMorgan, UBSS and CSS each hereby agree to act as joint lead arrangers and joint bookrunners for the Facilities on the terms and subject to the conditions set forth or referred to in this Commitment Letter and in the Term Sheet.  You also hereby appoint JPMCB to act, and JPMCB hereby agrees to act, as sole and exclusive administrative and collateral agent for the Facilities on the terms and subject to the conditions set forth or referred to in this Commitment Letter and in the Term Sheet.  It is understood and agreed that (a) no additional agents, co-agents, arrangers, co-arrangers, managers or co-managers will be appointed and no other titles will be awarded in connection with the Facilities unless you and we so agree and (b) no compensation (other than as expressly contemplated by the Term Sheet, the Fee Letter referred to below or the Administrative Agency Fee Letter referred to below) will be paid in connection with the Facilities unless you and we so agree (it being understood that JPMorgan shall appear on the “left” on all materials relating to the Facilities).

 

The Joint Lead Arrangers reserve the right, prior to or after the execution of definitive documentation for the Facilities, in consultation with you, to syndicate all or a portion of their respective commitments hereunder to one or more financial institutions that will become parties to such definitive documentation pursuant to syndications to be managed by the Joint Lead Arrangers (the financial institutions becoming parties to such definitive documentation being collectively referred to as the “Lenders”); provided that, notwithstanding each Joint Lead Arranger’s right to syndicate the Facilities and receive commitments with respect thereto, it is understood that any syndication of, or receipt of commitments in respect of, all or any portion of any Joint Lead Arranger’s commitments hereunder prior to the initial funding under the Facilities shall not be a condition to such Joint Lead Arranger’s commitments nor reduce such Joint Lead Arranger’s commitments hereunder with respect to any of the Facilities; provided, however, that the foregoing proviso shall not constitute a waiver of any other condition set forth in this Commitment Letter or the Term Sheet which shall impact the ability of the Joint Lead Arrangers to syndicate the Facilities, including clauses (b), (f) and (g) of the eleventh paragraph of this letter.  You understand that each of the Facilities will be separately syndicated.  The Joint Lead Arrangers may decide to commence syndication efforts promptly, and you agree actively to assist the Joint Lead Arrangers in completing timely and orderly syndications satisfactory to the Joint Lead Arrangers.  Such assistance shall include (a) your using commercially reasonable efforts to ensure that the syndication efforts benefit materially from the existing lending and investment banking relationships of the Borrower, (b) direct contact during the syndication between your senior management, representatives and advisors, on the one hand, and the proposed Lenders, on the other hand, (c) your assistance (including the use of commercially reasonable efforts to cause your affiliates and advisors to assist) in the preparation of materials to be used in connection with the syndication (collectively with the Term Sheet, the “Information Materials”) and (d) the hosting, with the Joint Lead Arrangers, of one or more meetings of prospective Lenders.  Notwithstanding anything to the contrary herein, the Borrower shall have no obligation to provide any information with respect to the Acquired Business other than the information set forth on Schedule 5.19(c) to the Purchase Agreement.

 

You will assist us in preparing Information Materials, including but not limited to a Confidential Information Memorandum or lender slides, for distribution to prospective Lenders.  If requested, you also will assist us in preparing an additional version of the Information Materials (the “Public-Side Version”) to be used by prospective Lenders’ public-side employees and representatives (“Public-Siders”) who do not wish to receive material non-public information (within the meaning of United States federal securities laws) with respect to the Borrower, its affiliates and any of their respective securities (“MNPI”) and who may be engaged in investment and other market related activities with respect to the Borrower’s or its affiliates’ securities or loans.  Before distribution of any Information Materials, you agree to execute and deliver to us (i) a letter in which you authorize distribution of the Information Materials to a prospective Lender’s employees willing to receive MNPI (“Private-Siders”) and (ii) a separate letter in which you authorize distribution of the Public-Side Version to Public-Siders and represent that no MNPI is contained therein  You also acknowledge that the Joint Lead Arrangers’ Public-Siders consisting of publishing debt analysts may participate in any meetings or telephone conference calls held pursuant to clause (d) of the immediately previous paragraph; provided that such analysts shall not publish any information obtained from such meetings or calls (i) until the syndication of the Facilities has been completed upon the making of allocations by the Joint Lead Arrangers and the Joint Lead Arrangers freeing the Facilities to trade or (ii) in violation of any confidentiality agreement between you and the Commitment Parties.

 

The Borrower agrees that the following documents may be distributed to both Private-Siders and Public-Siders, unless the Borrower advises the Joint Lead Arrangers in writing (including by email) within a reasonable time prior to their intended distribution that such materials should only be distributed to Private-Siders:  (a) administrative materials prepared by the Joint Lead Arrangers for prospective Lenders (such as a lender meeting invitation, bank allocation, if any, and funding and closing memoranda), (b) notification of changes in the Facilities’ terms and (c) other materials intended for prospective Lenders after the initial distribution of Information Materials.  If you advise us that any of the foregoing should be distributed only to Private-Siders, then Public-Siders will not receive such materials without further discussions with you.

 

The Borrower hereby authorizes the Joint Lead Arrangers to distribute drafts of definitive documentation with respect to the Facilities to Private-Siders and Public-Siders.

 

It is understood and agreed that the Joint Lead Arrangers will, after consultation with you, manage all aspects of the syndication, including determination of when the Joint Lead Arrangers will approach potential Lenders and the time of acceptance of the Lenders’ commitments, any naming rights and the final allocations of the commitments among the Lenders.  It is also understood and agreed that the amount and distribution of fees among the Lenders will be at the Joint Lead Arrangers’ discretion.  To assist the Joint Lead Arrangers in their syndication efforts, you agree promptly to prepare and provide to the Commitment Parties all information with respect to the Borrower and its subsidiaries, the Acquired Business, the Transactions and the other transactions contemplated hereby, including a business plan in form and substance satisfactory to the Joint Lead Arrangers and all other financial information and projections (the “Projections”), as the Commitment Parties may reasonably request in connection with the structuring, arrangement and syndication of the Facilities; provided, that with respect to information relating to the Acquired Business, your obligation to provide such information shall be limited to providing the information specified on Schedule 5.19(c) to the Purchase Agreement.

 

You hereby represent and covenant that (a) all information other than the Projections (the “Information”) that has been or will be made available to the Commitment Parties by or on behalf of the Borrower, its subsidiaries, or any of your representatives or affiliates, including information as it relates to the Acquired Business, is or will be, when furnished, complete and correct in all material respects and does not or will not, when furnished, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein not misleading in light of the circumstances under which such statements are made and (b) the Projections that have been or will be made available to the Commitment Parties by or on behalf of the Borrower or its subsidiaries, or any of your representatives or affiliates, have been and will be prepared in good faith based upon assumptions that are reasonable at the time made and at the time the related Projections are made available to the Commitment Parties.  You agree that if at any time from and including the date hereof until the closing of the Facilities, the condition in the preceding sentence would not be satisfied if the Information and Projections were being furnished at such time, then you will promptly supplement the Information and the Projections so that such condition would be satisfied under those circumstances.  In arranging the Facilities, including the syndications of the Facilities, the Commitment Parties will be entitled to use and rely primarily on the Information and the Projections without responsibility for independent verification thereof.

 

As consideration for the Initial Lenders’ commitments hereunder and the Joint Lead Arrangers’ agreement to structure, arrange and syndicate the Facilities and to provide advisory services in connection therewith, you agree to pay to the Initial Lenders the fees as set forth in the Term Sheet, in the Fee Letter dated the date hereof and delivered herewith with respect to the Facilities (the “Fee Letter”) and in the Administrative Agency Fee Letter dated the date hereof and delivered herewith with respect to the Facilities (the “Administrative Agency Fee Letter”).  Once paid, such fees shall not be refundable under any circumstances.

 

The commitments hereunder and the Joint Lead Arrangers’ agreement to perform the services described herein are subject to (a) each of the Commitment Parties not having discovered or otherwise becoming aware of information not previously disclosed to it that is materially and adversely inconsistent with information previously provided to the Commitment Parties prior to the date hereof (when taken in conjunction with all other information previously provided to the Commitment Parties) with respect to each of (x) of the Borrower and its subsidiaries, taken as a whole, and (y) the Acquired Business, so long as, in each case, in the Joint Lead Arrangers’ reasonable determination such discovery or awareness negatively impacts the Joint Lead Arrangers’ ability to syndicate the Facilities on the terms provided for in the Commitment Letter, the Term Sheet and the Fee Letter (including the ability to Syndicate the Facilities at the designated pricing levels and with the other economic and financial terms set forth herein and therein), (b) there not having occurred (i) any change, effect or circumstance that, individually or in the aggregate, has had, or would reasonably be expected to have, a material adverse effect on the business, assets, liabilities, results of operations or financial condition of the Business (as defined in the Purchase Agreement); provided, however, that changes, effects or circumstances, alone or in combination, that arise out of or result from (w) changes in economic conditions, financial or securities markets in general, or the industries and markets (including with respect to commodity prices) in which the Business is operated, provided such change does not disproportionately effect the Business, (x) the execution and performance of the Purchase Agreement and the announcement of the Purchase Agreement and the transactions contemplated thereby (other than as set forth in Section 3.4 or Section 5.1 of the Purchase Agreement), (y) acts of God, calamities, national or international political or social conditions, including the engagement by the United States in hostilities, whether commenced before or after the date hereof, or the occurrence of any military attack or terrorist act upon the United States, provided such act, calamity or condition does not disproportionately effect the Business or (z) any actions taken, or failures to take action, or such other changes or events, in each case, to which the Borrower has consented shall not be considered in determining whether such a material adverse effect has occurred, or (ii) any material adverse change in or material adverse effect on the ability of Seller to perform its obligations under the Purchase Agreement or to consummate the transactions contemplated thereby, (c) the Initial Lenders’ satisfaction that, prior to and during the syndication of the Facilities, there shall be no competing offering, placement or arrangement of debt securities or commercial bank or other credit facilities of the Borrower or its subsidiaries being offered, placed or arranged (other than a notes offering in an amount and with a structure as you and the Commitment Parties shall agree), (d) the negotiation, execution and delivery on or before October 31, 2008 of definitive documentation with respect to the Facilities satisfactory to the Initial Lenders and their counsel, (e) corporate family/corporate credit ratings shall have been received, and ratings shall have been assigned to the Facilities, from each of Standard & Poor’s, a division of The McGraw-Hill Companies, Inc. (“S&P”), and Moody’s Investors Service Inc. (“Moody’s”) not less than 15 business days prior to the Closing Date, (f) the Initial Lenders’ having been afforded no less than 20 consecutive business days after the completion of the Information Materials to syndicate the Facilities, provided, that such 20 consecutive business days shall not include any period that includes any of the period from August 16, 2008 through and including September 1, 2008, and (g) the other conditions set forth in the Term Sheet and the annexes and schedules thereto.  Those matters that are not covered by or made clear under the provisions hereof and of the Term Sheet are subject to the approval and agreement of the Commitment Parties and you.

 

Notwithstanding anything in this Commitment Letter, the Term Sheet (including the exhibits and schedules thereto), the Fee Letter, the definitive documentation for the Facilities or any other letter agreement or other undertaking concerning the financing of the Transaction to the contrary, (i) the only representations relating to the Borrower and/or the Acquired Business, as the case may be, the accuracy of which shall be a condition to availability of the Facilities on the Closing Date shall be (A) the representations with respect to the Acquired Business made by the Seller in the Purchase Agreement (the accuracy of which will be certified by the Seller on the Closing Date) and (B) the representations with respect to the Borrower made by the Borrower (I) in the definitive documentation for the Facilities (other than the material adverse change representation as set forth in the Term Sheet) and (II) in the Purchase Agreement, and (ii) the terms of the definitive documentation for the Facilities shall be in a form such that they do not impair availability of the Facilities on the Closing Date if the conditions set forth or referred to herein and in the Term Sheet (including in Schedule I thereto) are satisfied (it being understood that to the extent (x) any security interest or other lien in collateral comprised of real estate or (y) an effective account control agreement in the case of any item of collateral in which perfection of a security interest or other lien by means of control requires an agreement with a person other than a Commitment Party or the Borrower or the Acquired Business (such collateral being herein referred to as “Control Collateral”), in each case is not provided on the Closing Date after the Borrower’s good faith use of commercially reasonable efforts to do so, the perfection of the Collateral Agent's security interest or other Lien in such real estate or Control Collateral shall not constitute a condition precedent to the availability of the Facilities on the Closing Date but shall be required as soon as practicable after the Closing Date pursuant to arrangements and timing reasonably satisfactory to the Collateral Agent).  Notwithstanding anything in this Commitment Letter, the Fee Letter, the definitive documentation for the Facilities or any other letter agreement or other undertaking concerning the Facilities contemplated herein to the contrary, the only conditions to the availability of the Facilities on the Closing Date are set forth or referred to (x) in this and the immediately preceding paragraph, (y) in the Term Sheet opposite the captions “Conditions to Initial Borrowings” and “Conditions to Each Borrowing” and (z) in Schedule I to the Term Sheet.

 

By executing this Commitment Letter, you agree (a) to indemnify and hold harmless each of the Commitment Parties, their respective affiliates and their respective officers, directors, employees, affiliates, agents and controlling persons from and against any and all losses, claims, damages, liabilities and expenses, joint or several, to which any such persons may become subject arising out of or in connection with this Commitment Letter, the Fee Letter, the Administrative Agency Fee Letter, the Term Sheet, the Transactions and the other transactions contemplated hereby, the Facilities, the use of the proceeds thereof or any related transaction or any claim, litigation, investigation or proceeding relating to any of the foregoing, regardless of whether any of such indemnified parties is a party thereto, and to reimburse each of such indemnified parties upon demand for any reasonable legal or other expenses incurred in connection with investigating or defending any of the foregoing, provided that the foregoing indemnity will not, as to any indemnified party, apply to losses, claims, damages, liabilities or related expenses to the extent they are found in a final nonappealable judgment of a court to have resulted from the willful misconduct or gross negligence of such indemnified party, and (b) to reimburse the Commitment Parties from time to time, for all reasonable out-of-pocket expenses (including but not limited to expenses of the Commitment Parties’ due diligence investigation, consultants’ fees, syndication expenses, travel expenses and reasonable fees, disbursements and other charges of counsel) incurred in connection with the Facilities and the preparation of this Commitment Letter, the Term Sheet, the Fee Letter, the Administrative Agency Fee Letter, the definitive documentation for the Facilities and any security arrangements in connection therewith or the administration, amendment or waiver thereof, in each case whether or not the Closing Date occurs or any Bank Documentation is executed and delivered or any extensions of credit are made under any portion of the Facilities.  Notwithstanding any other provision of this Commitment Letter, no indemnified person 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 or for any special, indirect, consequential or punitive damages in connection with its activities related to the Facilities.

 

You acknowledge that we and our respective affiliates may be providing debt financing, equity capital or other services (including financial advisory services) to other companies in respect of which you may have conflicting interests regarding the transactions described herein and otherwise.  None of the Commitment Parties or any of their respective affiliates will use confidential information obtained from you by virtue of the transactions contemplated by this Commitment Letter or its other relationships with you in connection with the performance by the Commitment Parties or any of their respective affiliates of services for other companies, and none of the Commitment Parties or any of their respective affiliates will furnish any such information to other companies.  You also acknowledge that none of the Commitment Parties or any of their respective affiliates has any obligation to use in connection with the transactions contemplated by this Commitment Letter, or to furnish to the Borrower or its respective subsidiaries, confidential information obtained by the Commitment Parties or any of their respective affiliates from other companies.

 

This Commitment Letter and the commitments hereunder shall not be assignable by you without the prior written consent of the Commitment Parties, and any purported assignment without such consent shall be null and void.  This Commitment Letter may not be amended or any provision hereof waived or modified except by an instrument in writing signed by each of the Commitment Parties and you.  This Commitment Letter may be executed in any number of counterparts, each of which shall be deemed an original and all of which, when taken together, shall constitute one agreement.  Delivery of an executed counterpart of a signature page of this Commitment Letter by facsimile transmission shall be effective as delivery of a manually executed counterpart of this Commitment Letter.  This Commitment Letter (including the exhibits hereto), the Fee Letter and the Administrative Agency Fee Letter are the only agreements that have been entered into among us with respect to the Facilities and set forth the entire understanding of the parties with respect thereto.  This Commitment Letter 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.  This Commitment Letter shall be governed by, and construed in accordance with, the laws of the State of New York, without giving effect to the conflicts of law principles thereof.  The Commitment Parties may perform the duties and activities described hereunder through any of their respective affiliates and the provisions of the second preceding paragraph shall apply with equal force and effect to any of such affiliates so performing any such duties or activities.

 

Each party hereto irrevocably and unconditionally submits to the exclusive jurisdiction of any state or Federal court sitting in the City of New York over any suit, action or proceeding arising out of or relating to the Transactions or the other transactions contemplated hereby, this Commitment Letter, the Term Sheet, the Administrative Agency Fee Letter or the Fee Letter or the performance of services hereunder or thereunder.  You hereby agree that service of any process, summons, notice or document by registered mail addressed to you shall be effective service of process for any suit, action or proceeding brought in any such court.  You will promptly appoint an authorized agent (the “Authorized Agent”), upon whom process may be served in any suit, action or proceeding arising out of or relating to the Transactions, this Commitment Letter, the Term Sheet, the Administrative Agency Fee Letter or the Fee Letter or the performance of services hereunder or thereunder which may be instituted in any such court.  You agree to take any and all action, including the filing of any and all documents, that may be necessary to establish and continue such appointment in full force and effect as aforesaid.  Service of process upon the Authorized Agent shall be deemed, in every respect, effective service of process upon you.  Each party hereto irrevocably and unconditionally waives any objection to the laying of 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 any inconvenient forum.  Each party hereto agrees that a final judgment in any such suit, action or proceeding brought in any such court shall be conclusive and binding upon it and may be enforced in any other courts to whose jurisdiction it is or may be subject, by suit upon judgment.  You and the Commitment Parties irrevocably agree to waive trial by jury in any suit, action, proceeding, claim or counterclaim brought by or on behalf of any party related to or arising out of the Transactions, this Commitment Letter, the Term Sheet, the Administrative Agency Fee Letter or the Fee Letter or the performance of services hereunder or thereunder.

 

You agree that you will not disclose, directly or indirectly, this Commitment Letter, the Term Sheet, the Administrative Agency Fee Letter, the Fee Letter, the contents of any of the foregoing or the activities of the Commitment Parties pursuant hereto or thereto to any person without the prior approval of the Commitment Parties, except that you may disclose (a) this Commitment Letter, the Term Sheet, the Fee Letter and the contents hereof and thereof (i) to your officers, employees, attorneys, accountants and advisors directly involved in the consideration of this matter on a confidential and need-to-know basis and (ii) as required by applicable law or compulsory legal process (in which case you agree to inform us promptly thereof) and (b) this Commitment Letter, the Term Sheet and the contents hereof and thereof (but not the Fee Letter (other than upon request by the Seller, to the Seller as redacted in a mutually agreed fashion), the Administrative Agency Fee Letter or the contents thereof) to the Seller and its officers, directors, employees, attorneys, accountants and advisors, in each case in connection with the Transactions and on a confidential and need-to-know basis after this Commitment Letter has been accepted by you.  Notwithstanding anything herein to the contrary, any party subject to confidentiality obligations hereunder or under any other related document (and any employee, representative or other agent of such party) may disclose to any and all persons, without limitation of any kind, such party's U.S. federal income tax treatment and the U.S. federal income tax structure of the transactions contemplated hereby relating to such party and all materials of any kind (including opinions or other tax analyses) that are provided to it relating to such tax treatment and tax structure.  However, no such party shall disclose any information relating to such tax treatment or tax structure to the extent nondisclosure is reasonably necessary in order to comply with applicable securities laws.

 

We hereby notify you that pursuant to the requirements of the USA Patriot Act, Title III of Pub. L. 107-56 (signed into law October 26, 2001) (the “Patriot Act”), we and the other Lenders may be required to obtain, verify and record information that identifies the Borrower and the Acquired Business, which information includes the name, address and tax identification number and other information regarding them that will allow us or such Lender to identify them in accordance with the Patriot Act.  This notice is given in accordance with the requirements of the Patriot Act and is effective as to us and the Lenders.

 

Please indicate your acceptance of the terms hereof and of the Fee Letter and the Administrative Agency Fee Letter by signing in the appropriate space below and in the Fee Letter and the Administrative Agency Fee Letter and returning to the Initial Lenders the enclosed duplicate originals (or facsimiles or .pdfs) of this Commitment Letter, the Administrative Agency Fee Letter and the Fee Letter not later than 5:00 p.m., New York City time, on June 9, 2008.  The commitments hereunder will expire at such time in the event that the Initial Lenders have not received such executed duplicate originals (or facsimiles) in accordance with the immediately preceding sentence.  In the event that the initial borrowing under the Facilities does not occur on or before October 31, 2008, then this Commitment Letter and the commitments hereunder shall automatically terminate unless the Commitment Parties shall, in their discretion, agree to an extension.  The compensation, reimbursement, indemnification, jurisdiction and confidentiality provisions contained herein, in the Administrative Agency Fee Letter and in the Fee Letter shall remain in full force and effect regardless of whether definitive financing documentation shall be executed and delivered and notwithstanding the termination of this Commitment Letter or the commitments hereunder.

 

 

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

 

 

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

 

 

BE AEROSPACE, INC.,

 

By /s/ Thomas P. McCaffrey______________

Name: Thomas P. McCaffrey

Events of Default:	The following events of default will be subject to materiality levels, default triggers, cure periods and/or exceptions to be negotiated and reflected in the Bank Documentation:  nonpayment, breach of representations and covenants, cross-defaults, loss of lien on collateral, invalidity of guarantees (if any), bankruptcy and insolvency events, ERISA events, judgments and change of control (to be defined).
Assignments and Participations:	Each Lender may assign all or a portion of its loans and commitments under the Facilities, provided that each such assignment shall be in a minimum amount of not less than (i) $5.0 million for the Revolving Credit Facility, and (ii) $1.0 million for the Term Loan Facility (in both instances except in the case of the assignment of a Lender’s entire commitment).  Assignments will require payment of an administrative fee of $3,500 (which shall be for the account of the applicable assignor or assignee) to the Administrative Agent and the consents of the Administrative Agent, the Borrower and with respect to an assignment of the Revolving Credit Facility, the Issuing Bank, which consents shall not be unreasonably withheld, conditioned or delayed; provided that (i) with respect to the Administrative Agent with regard to the Term Loan Facility and with respect to the Borrower with regard to the Facilities, no consents shall be required for an assignment to an existing Lender or an affiliate of an existing Lender or an approved fund and (ii) no consent of the Borrower shall be required during the continuance of an event of default.  In addition, each Lender may sell participations in all or a portion of its loans and commitments under the Facilities; provided that no purchaser of a participation shall have the right to exercise or to cause the selling Lender to exercise voting rights in respect of the Facilities (except as to certain basic issues).
Expenses and Indemnification:	All reasonable out-of-pocket expenses (including but not limited to reasonable legal fees and expenses of one counsel to the Lenders and one local counsel in each appropriate jurisdiction and expenses incurred in connection with due diligence and travel, courier, reproduction, printing and delivery expenses) of the Lenders, the Joint Lead Arrangers, the Administrative Agent, the Collateral Agent and the Issuing Bank associated with the syndication of the Facilities and with the preparation, execution and delivery, administration, amendment, waiver or modification (including proposed amendments, waivers or modifications) of the documentation contemplated hereby are to be paid by the Borrower, subject to receipt of supporting documentation in reasonable detail.  In addition, all out-of-pocket expenses (including but not limited to reasonable legal fees and expenses) of the Lenders and the Administrative Agent for workout proceedings, enforcement costs and documentary taxes associated with the Facilities are to be paid by the Borrower, subject to receipt of supporting documentation in reasonable detail.

 

 

 

 

	The Borrower will indemnify the Lenders, the Joint Lead Arrangers, the Administrative Agent, the Collateral Agent and the Issuing Bank and their respective affiliates, and hold them harmless from and against all reasonable out-of-pocket costs, expenses (including but not limited to reasonable legal fees and expenses) and liabilities arising out of or relating to the transactions contemplated hereby and any actual or proposed use of the proceeds of any loans made under the Facilities; provided, however, that no such person will be indemnified for costs, expenses or liabilities to the extent determined by a final, nonappealable judgment of a court of competent jurisdiction to have been incurred by reason of the gross negligence or willful misconduct of such person.
Yield Protection, Taxes and Other Deductions:	The Bank Documentation will contain yield protection provisions, customary for facilities of this nature, protecting the Lenders in the event of unavailability of LIBOR, breakage losses, reserve and capital adequacy requirements, subject to customary rights of the Borrower to replace Lenders requesting increased costs.
	All payments are to be free and clear of any present or future taxes, withholdings or other deductions whatsoever (other than income taxes in the jurisdiction of the Lender’s applicable lending office).  The Lenders will use commercially reasonable efforts to minimize to the extent possible any applicable taxes and the Borrower will indemnify the Lenders and the Administrative Agent for such taxes paid by the Lenders and the Administrative Agent, as the case may be.
Required Lenders:	Lenders holding at least a majority of total loans and commitments under the Facilities, with certain amendments requiring the consent of each affected Lender.
Governing Law and Forum:	The laws of the State of New York.  Each party to the Bank Documentation will waive the right to trial by jury and will consent to jurisdiction of the state and federal courts located in The City of New York.
Counsel to the Initial Lenders, the Joint Lead Arrangers, the Administrative Agent, the Issuing Bank and the Collateral Agent:	Fried, Frank, Harris, Shriver & Jacobson LLP.

 

The commitments of the Initial Lenders under the Commitment Letter with respect to the Bank Facilities, the agreements of the Initial Lenders and the Joint Lead Arrangers to perform the services described in the Commitment Letter are subject to the satisfaction (or waiver) of each of the conditions precedent set forth below.

1.           The Initial Lenders shall have reviewed, and be satisfied with, the final structure, terms and conditions and the documentation relating to the Acquisition, including the Purchase Agreement (collectively, the “Acquisition Documents”), and each of the other Transactions (it being understood that Initial Lenders are satisfied with the June 9, 2008 execution form of the Acquisition Agreement and the disclosure schedules and exhibits thereto).  The sources and uses of funds shall be as set forth on Schedule II to the Term Sheet or as otherwise agreed between the Borrower and the Lenders. The Acquisition shall be consummated concurrently with the initial funding of the Facilities substantially in accordance with the Acquisition Documents without waiver or amendment thereof, in each case that is material and adverse to the interests of the Lenders, without the consent of the Initial Lenders.

 

2.           The Initial Lenders shall have received (i) audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of each of Borrower and the Acquired Business for each of the last three fiscal years ending more than 90 days prior to the Closing Date, (ii) unaudited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of each of the Borrower and the Acquired Business for each fiscal quarter of the current fiscal year ending more than 45 days prior to the Closing Date and for the comparable periods of the preceding fiscal year (with respect to which the independent auditors shall have performed an SAS 100 review); (iii) a pro forma consolidated balance sheet and related statements of income for the Borrower for the last fiscal year covered by the audited financial statements delivered pursuant to clause (i) above and for the latest four-quarter period ending more than 45 days prior to the Closing Date, in each case after giving effect to the Transactions; and (iv) forecasts of the financial performance of the Borrower and its subsidiaries (x) on an annual basis, through 2012 and (y) on a quarterly basis, through 2008 satisfactory to the Initial Lenders.  The financial statements referred to in clauses (i), (ii) and (iii) shall be prepared in accordance with accounting principles generally accepted in the United States.

 

3.           The Lenders shall have received customary opinions, certificates, including a solvency certificate by the chief financial officer of the Borrower, and closing documentation as the Initial Lenders shall reasonably request, in form and substance reasonably satisfactory to the Initial Lenders.

 

4.           The Borrower and each of the Guarantors shall have provided the documentation and other information to the Lenders that is required by regulatory authorities under applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Patriot Act.

 

5.           All costs, fees, expenses (including, without limitation, reasonable fees of one legal counsel to the Initial Lenders and one local counsel in each appropriate jurisdiction) and other compensation payable to the Lenders, the Joint Lead Arrangers, the Initial Lenders, the Administrative Agent and the Collateral Agent, as separately agreed shall have been paid to the extent due.

 

6.           Subject to the provisions of the eleventh paragraph of the Commitment Letter, the Collateral Agent shall have a perfected, first priority lien on and security interest in the certain assets as required in the Term Sheet under the heading “Security” (subject to liens permitted under the definitive loan documentation and as otherwise agreed by the Lead Arrangers).