Execution Copy

You agree to actively assist, and use your commercially reasonable efforts to cause the Target, the Sellers and their respective relevant representatives, subsidiaries and affiliates, and appropriate members of the management teams of the Target, to actively assist, the Lead Arrangers in achieving a Successful Syndication (as defined in the Joint Fee Letter).  Such assistance shall include your (a) providing, causing your advisors to provide and using your commercially reasonable efforts to cause the Target and the Sellers, and appropriate members of the management team of the Target, to provide, the Lead Parties and the other Lenders upon request with all information reasonably deemed necessary by the Lead Parties to complete a Successful Syndication, including, but not limited to, information and evaluations prepared by you and your advisors, or on your behalf, relating to the transactions contemplated hereby (including the Projections (as defined below), the “Information”), (b) assisting, and using your commercially reasonable efforts to cause the Target and the Sellers, and appropriate members of the management team of the Target, to assist, in the preparation of Information Memoranda and other materials to be used in connection with the syndication of the Senior Credit Facilities (collectively with the Summary of Terms

 

and the Conditions Annex and any additional summary of terms prepared for distribution to Public Lenders (as hereinafter defined), the “Information Materials”), (c) using your commercially reasonable efforts to ensure that the syndication efforts of the Lead Arrangers benefit materially from your existing banking relationships and the existing banking relationships of the Target and the Sellers, (d) your ensuring that there is no competing offering, placement or arrangement of any debt securities or bank financings (other than the Mezzanine Facility) by or on behalf of the Borrower or any of its subsidiaries and the Target and its subsidiaries and (e) otherwise assisting the Lead Parties in their syndication efforts, including by making your officers and advisors available, and (to the extent reasonable and practical) making officers and advisors of the Target (or any of its subsidiaries) and the Sellers available, from time to time to attend and make presentations regarding the business and prospects of the Borrower and its subsidiaries (including the Target and its subsidiaries), as appropriate, at one or more meetings of prospective Lenders.  Notwithstanding any earlier termination of this Commitment Letter, the provisions of this paragraph and the immediately following paragraph shall survive and remain in full force and effect until the earliest of (i) 90 days following the Closing Date, (ii) completion of a Successful Syndication and (iii) the termination of this Commitment Letter pursuant to the last paragraph hereof other than as a result of the occurrence of the Closing Date (such earliest date, the “Syndication Assistance Termination Date”).

 

 

incurred for) any and all claims, damages, losses, liabilities and expenses (including, without limitation, the reasonable fees, disbursements and other charges of counsel) 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 Transactions or any matters contemplated by this Commitment Letter or any related transaction or (b) the Senior Credit Facilities and any other financings, or any use made or proposed to be made with the proceeds thereof, except to the extent such claim, damage, loss, liability or expense is found in a final, nonappealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party’s gross negligence, willful misconduct or bad faith breach of its material obligations under this Commitment Letter.  In the case of an investigation, litigation or proceeding to which the indemnity in this paragraph applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by you, your equityholders or creditors, the Target, any affiliate or creditor of the Target, the Sellers or any affiliate or creditor of a Seller or an Indemnified Party, whether or not an Indemnified Party is otherwise a party thereto and whether or not the transactions contemplated hereby are consummated.  You also agree that no Indemnified Party shall have any liability (whether direct or indirect, in contract or tort or otherwise) to you or your subsidiaries or affiliates or to your or their respective equityholders or creditors or to the Target, the Seller or any of their respective affiliates or creditors arising out of, related to or in connection with any aspect of the transactions contemplated hereby, except to the extent of direct, as opposed to special, indirect, consequential or punitive, damages determined in a final, nonappealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party’s gross negligence, willful misconduct or bad faith breach of its material obligations under this Commitment Letter.  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 or actual damages resulting from the gross negligence, willful misconduct or bad faith breach of its material obligations under this Commitment Letter of such Indemnified Party as determined by a final and nonappealable judgment of a court of competent jurisdiction.

the other services and transactions contemplated hereby, you agree that each Lead Party is permitted to access, use and share with any of its bank or non-bank affiliates, agents, advisors (legal or otherwise) or representatives any information concerning you, the Target, the Sellers or any of your or their respective affiliates that is or may come into the possession of such Lead Party or any of such affiliates.

 

In connection with all aspects of the Transactions and each other transaction contemplated by this Commitment Letter, you acknowledge and agree, and acknowledge your affiliates’ understanding, that:  (a) (i) the arranging and other services described herein regarding the Senior Credit Facilities are arm’s-length commercial transactions between you and your affiliates, on the one hand, and the Lead Parties, on the other hand, (ii) you have consulted your own legal, accounting, regulatory and tax advisors to the extent you have deemed appropriate, and (iii) you are capable of evaluating, and understand and accept, the terms, risks and conditions of the Transactions and the other transactions contemplated hereby; (b) (i) each Lead Party has been, is, and will be acting solely as a principal and, except as otherwise expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for you, the Target, any of your or their respective affiliates or any other person or entity and (ii) no Lead Party has any obligation to you or your affiliates with respect to Transactions or the other transactions contemplated hereby except those obligations expressly set forth herein; and (c) the Lead Parties and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from yours, the Target’s and those of your and their respective affiliates, and no Lead Party (nor any of its affiliates) has any obligation to disclose any of such interests to you, the Target or your or their respective affiliates. To the fullest extent permitted by law, you hereby waive and release any claims that you may have against any Lead Party with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated by this Commitment Letter.

with respect to the Senior Credit Facilities and supersede all prior agreements and understandings relating to the specific matters hereof.  Those matters that are not covered or made clear herein or in the Summary of Terms, the Conditions Annex or the Fee Letters are subject to mutual agreement of the parties.  No party has been authorized by any Lead Party to make any oral or written statements that are inconsistent with this Commitment Letter.  This Commitment Letter is not assignable by the Borrower without our prior written consent and is intended to be solely for the benefit of the parties hereto and the Indemnified Parties.

 

This Commitment Letter and all commitments and undertakings of the Lead Parties hereunder will expire at 5:00 p.m. (Eastern time) on June 3, 2011 unless you execute this Commitment Letter and each of the Fee Letters and return them to us prior to that time (which may be by facsimile transmission), whereupon this Commitment Letter (including the Summary of Terms and the Conditions Annex) and the Fee Letters (each of which may be signed in one or more counterparts) shall become binding agreements.  Thereafter, all commitments and undertakings of the Lead Parties hereunder will expire on the earliest of (a) July 29, 2011 unless definitive documentation for the Senior Credit Facilities is executed and delivered prior to such date, (b) the closing of the Acquisition or the completion of the Refinancing without the use of the Senior Credit Facilities, (c) the termination of the Merger Agreement without consummation of the Acquisition and (d) the acceptance by the Sellers or any of their respective affiliates of an offer for all or any substantial part of the capital stock or property or assets of the Target and its subsidiaries other than as part of the Transactions.  In consideration of the time and resources that the Lead Parties will devote to the Senior Credit Facilities, you agree that, until such expiration, you will not solicit, initiate, entertain or permit, or enter into any discussions in respect of, any offering, placement or arrangement of any competing senior credit facility or facilities for the Borrower and its subsidiaries.

	BANK OF AMERICA, N.A.
	By:	/s/ Chris Busconi
	Name:	Chris Busconi
	Title:	Vice President

	MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
	By:	/s/ Matthew N. Tigwell
	Name:	Matthew N. Tigwell
	Title:	Vice President

	SUNTRUST BANK
	By:	/s/ Peter J. Mandanis
	Name:	Peter J. Mandanis
	Title:	Senior Vice President

	SUNTRUST ROBINSON HUMPHREY, INC.
	By:	/s/ Keith E. Roberts
	Name:	Keith E. Roberts
	Title:	Director

	PNC BANK, NATIONAL ASSOCIATION
	By:	/s/ Douglas T. Brown
	Name:	Douglas T. Brown
	Title:	Senior Vice President

	PNC CAPITAL MARKETS LLC
	By:	/s/ David R. Walsh
	Name:	David R. Walsh
	Title:	Managing Director

By:	/s/ David Keleher
Name:	David Keleher
Title:	Senior Vice President and Chief Financial Officer

(c)

50% of all net cash proceeds from the issuance of additional equity interests in the Borrower or any of its subsidiaries otherwise permitted under the loan documentation; provided that the Borrower may use cash proceeds from any such issuance of additional equity interests to concurrently prepay indebtedness outstanding under the Mezzanine Facility so long as on the date of any such prepayment (i) the Borrower is in pro forma compliance (after giving effect to such prepayment) with the financial covenants and (ii) no default or event of default has occurred and is continuing or would result from such prepayment;

 

(b)

All present and future intercompany debt of each Credit Party.

 

and Warranties:

The following: (i) legal existence, qualification and power; (ii) due authorization and no contravention of law, contracts or organizational documents; (iii) governmental and third party approvals and consents; (iv) enforceability; (v) accuracy and completeness of specified financial statements and other information and no event or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect; (vi) no material litigation; (vii) no default (including no default on material contracts); (viii) ownership of property (including disclosure of liens, properties, leases and investments); (ix) insurance matters; (x) environmental matters; (xi) tax matters; (xii) ERISA compliance; (xiii) identification of subsidiaries, equity interests and credit parties; (xiv) use of proceeds and not engaging in business of purchasing/carrying margin stock; (xv) status under Investment

 

(b)

Negative Covenants - Restrictions on (i) liens; (ii) indebtedness (including guarantees and other contingent obligations); (iii) investments (including acquisitions, loans and advances (other than the Acquisition)); (iv) mergers and other fundamental changes; (v) sales and other dispositions of property or assets; (vi) payments of dividends and other distributions; (vii) changes in the nature of business; (viii) transactions with affiliates; (ix) burdensome agreements; (x) use of proceeds; (xi) capital expenditures; (xii) amendments of organizational documents; (xiii) changes in accounting policies or reporting practices; (xiv) prepayments of other indebtedness, including the Mezzanine Facility (to the extent prohibited by the subordination terms applicable thereto); (xv) modification or termination of documents related to certain indebtedness, including the Mezzanine Facility (to the extent prohibited by the subordination terms applicable thereto); and (xvi) designation of other senior debt.

 

 

Events of Default:

The following (with thresholds and grace periods to be agreed in the definitive loan documentation):  (i) nonpayment of principal, interest, fees or other amounts (with grace periods to be agreed for the non-payment of interest, fees and other amounts); (ii) failure to perform or observe covenants set forth in the loan documentation within a specified period of time, where customary and appropriate, after such failure; (iii) any representation or warranty proving to have been incorrect when made or confirmed in any material respect (or, with respect to representations and warranties modified by materiality standards, in any respect); (iv) cross-default to other indebtedness in an amount to be agreed; (v) bankruptcy and insolvency defaults (with grace period for involuntary proceedings); (vi) inability to pay debts; (vii) monetary judgment defaults in an amount to be agreed and material nonmonetary judgment defaults; (viii) customary ERISA defaults; (ix) actual or asserted invalidity or impairment of any loan documentation; (x) change of control (to be defined and mutually agreed upon in the definitive loan documentation); (xi) debarment or suspension by governmental authority; (xii) invalidity or impairment of subordination provisions or assertion thereof by any Credit Party or any of its subsidiaries or affiliates; and (xiii) termination or default under

 

Participations:  Lenders will be permitted to sell participations with voting rights limited to significant matters such as changes in amount, rate, maturity date and releases of all or substantially all of the collateral securing the Senior Credit Facilities or all or

Indemnification:

The Borrower will indemnify and hold harmless the Administrative Agent, each Lead Arranger, each Lender and their respective affiliates and their partners, directors, officers, employees, agents and advisors (collectively, the “Indemnified Parties”) from and against all losses, claims, damages, liabilities and expenses arising out of or relating to the Senior Credit Facilities, any other aspect of the Transactions, the Borrower’s use of loan proceeds or the commitments, including, but not limited to, reasonable attorneys’ fees (including the allocated cost of internal counsel) and settlement costs (except to the extent such loss, claim, damage, liability or expense is found in a final, nonappealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party’s gross negligence, willful misconduct or bad faith breach of its material obligations relating to the Senior Credit Facilities).  This

 

Expenses:

The Borrower will pay all reasonable costs and expenses of the Administrative Agent and the Lead Arrangers associated with the preparation, due diligence, administration, syndication and closing of all loan documentation (including the reasonable fees, disbursements and other charges of Winston & Strawn LLP, as counsel to MLPFS and Bank of America, and of special and local counsel to the Lenders retained by MLPFS or the Administrative Agent) regardless of whether or not the Senior Credit Facilities are closed.  The Borrower will also pay the expenses of the Administrative Agent and each Lender in connection with the enforcement of any of the loan documentation.

 

4.

The Borrower shall have (a) delivered to the Lead Arrangers (and the Lead Arrangers shall have received) true and correct copies of the definitive documentation for the Mezzanine Facility (including all exhibits and schedules thereto), and (b) received, or shall receive substantially concurrently with the initial borrowing under the Senior Credit Facilities, gross cash proceeds from the Mezzanine Facility in an aggregate principal amount of at least $40,000,000 on the terms set forth in the commitment letter dated as of June 2, 2011 from Ares Capital Corporation and delivered to the Administrative Agent’s counsel in an email from Joyce Hsieh at Bingham McCutchen LLP at 9:50 pm (Eastern) on June 2, 2011 (the “Mezzanine Commitment Letter”) or,

 

 

7.

The Lead Arrangers shall have received (a) the audited consolidated balance sheets and related consolidated statements of income and cash flows of each of  Borrower and its subsidiaries and the Target and its subsidiaries, in each case for the fiscal years ended December 31, 2008, December 31, 2009 and December 31, 2010, (b) to the extent available, the unaudited consolidated balance sheets and related consolidated statements

11.

There shall not have occurred any circumstance, development, event, condition, effect or change since December 31, 2010 that has had or could be reasonably expected, either individually or in the aggregate, to have a Material Adverse Effect on (a) the Borrower and its subsidiaries (taken as a whole) or (b) the Target and its subsidiaries (taken as a whole).  As used herein, “Material Adverse Effect” means with respect to any person (i) a material adverse change in, or a material adverse effect on, the operations, business, assets, properties, liabilities (actual or contingent) or financial condition of such person or such person and its subsidiaries taken as a whole; (ii) a material impairment of the rights and remedies of the Administrative Agent or any Lender under any loan documentation, or of the ability of such person to perform its obligations under any loan documentation to which it is a party or will be a party; or (iii) a material adverse effect upon the legality, validity, binding effect or enforceability against such person of any loan documentation to which it is, or will be, a party.