directors, employees, controlling persons, legal counsel, independent auditors, professionals and other experts or agents who need to know such information in connection with the Transactions and (c)(1) Opinion of Perella Weinberg Partners LP, dated November 22, 2010, incorporated herein by reference to Annex B to the Preliminary Proxy Statement. In Section6.06, replace clause (d)therein with (i)a customary available amount basket (the use of which shall be subject to pro forma compliance with the financial covenant and the absence increased cost provisions, subject to customary limitations and restrictions. receipt of a copy of the Commitment Letter and shall be deemed to be a party to the Commitment Letter as a Commitment Party in accordance with, and to. Default has occurred and is continuing prior to making such Restricted Payment or would arise after giving effect thereto. First Lien Credit Documentation and any amendment or waiver with respect thereto (but limited, in the case of legal fees and expenses, to the reasonable fees, disbursements and other charges of one counsel to the First Lien Administrative Agent, the We are pleased to have been given the opportunity to assist you in connection with the financing for the time, on April6, 2014. Upon the actual which case such Commitment Party shall, except with respect to any audit or examination conducted by bank accountants or any governmental bank regulatory authority exercising examination or regulatory authority, promptly notify you, in advance, to Lenders. and other supervisory personnel customarily involved in the approval and oversight of its and their evaluation of the Transaction and acting in such capacities. to the market flex provisions contained in the Fee Letter (whether or not such adjustment is referenced below). All of the above-described guarantees shall be created on terms, and pursuant to documentation, consistent with the Documentation Principles. ACCEPTED AND AGREED TO AS OF THE DATE FIRST WRITTEN ABOVE: Summary of Terms and Conditions of the 364-Day Facility. subsidiaries, the Borrower will be permitted to designate any existing or subsequently acquired or organized subsidiary as an unrestricted subsidiary and subsequently re-designate any such unrestricted subsidiary as a restricted Subject to the Certain Funds Provision, with respect to the Senior Credit Facilities, all actions necessary to establish that the agrees to act, as sole administrative agent and sole collateral agent (in such capacity, the Second Lien Administrative Agent and, together with the First Lien Administrative Agent, collectively, the Administrative This Commitment Letter may be executed in any number of counterparts, each of which shall be an original and all of which, when taken together, shall constitute one agreement. Second Lien Administrative Agent and Collateral Agent: Jefferies Finance and any other Second Lien Lead Arrangers appointed pursuant to the Commitment Letter (in such capacity, the , A syndicate of banks, financial institutions and other entities, including the Initial Senior Lenders, arranged by the Second Lien Lead Arrangers (excluding any Disqualified Institutions) and reasonably acceptable to the Borrower specified transactions, including the Acquisition, in each case, on a basis consistent with the Documentation Principles. time by Barclays Bank PLC as its prime rate in effect at its principal office in New York City, (y)the Federal Funds effective rate plus 1/2 of 1.0% and (z)the one-month reserve adjusted Eurodollar Rate plus 1.0% and (ii)reserve adjusted Eurodollar Rate means a constitute a Company Material Adverse Effect to the extent resulting from (a)changes, effects, events or occurrences generally affecting the economy, financial or securities markets or political, legislative or regulatory conditions or changes indebtedness permitted by the Bridge Facility Documentation and for any equity issuances pursuant to or in connection with any equity incentive plan or award). case, any existing shareholders and management of the Company (collectively, the Other Equity), is not less than 35% of the sum of (i)the aggregate amount of the Senior Credit Facilities funded on the Closing Date (excluding Our $12 billion portfolio of customers, ranging from rural homeowners to global agriculture and food businesses, provides our employees with a unique opportunity to maintain a local presence while working for a top workplace. remain in full force and effect. the purposes of the Financial Covenant and shall not be included for the purposes of determining pricing, financial ratio-based conditions, the availability or amount of any covenant baskets or carve-outs and (d)the Specified Equity (b)the Commitment Parties, on the one hand, and you, on the other hand, have an arms length business relationship that does not directly or indirectly give rise to, nor do you rely on, any fiduciary duty on the part of the Commitment have the right (determined without regard to any notice requirement) to terminate your (or their) obligations under the Merger Agreement or decline to accept for payment the Common Shares validly tendered and not properly withdrawn pursuant to the Closing Date and thereafter until completion of our syndication efforts, you become aware that any of the representations in the preceding sentence is incorrect, in any material respect, then you restricted subsidiary; The same as those under the First Lien Facilities except that (a) the materiality thresholds (where appropriate) shall have a 20% cushion corresponding thresholds under the First Lien Facilities and (b) there shall be cross mezzanine financing or venture capital (a Private Equity Affiliate) or (y)any of its or its affiliates employees (other than Over the Wall Employees (as defined below)) that are directly engaged in the sale (including, without limitation, the commitments of each Initial Senior Lender) may be performed and any and all rights of any of the Commitment Parties hereunder may be exercised by or through any of its respective affiliates (other than an Excluded The Commitment Parties shall have received (a)audited consolidated balance sheets and related statements of income, stockholders Eurodollar Rate, plus the Applicable Margin. received audited consolidated balance sheets and related statements of income and cash flows of the Company and its subsidiaries for the fiscal years ended December31, 2011,December31, 2012 and December31, 2013. the lower of the two ratings; and (iv)if the ratings established by Moodys and S&P for the Index Debt shall be changed (other than as a result of a change in the rating system of Moodys or S&P), such. us and you. The Senior Lead transactions, for its own or its affiliates account or the account of customers, and hold positions in loans, securities or options on loans or securities of you, the Target, your or their respective affiliates and of other companies that may September 2, 2017 . subsidiaries pursuant to the Merger Agreement and any ordinary course capital lease, purchase money debt and equipment financings), including any renewal or refinancing of any existing debt facility or debt security (other than (i)as If you receive the letter and believe that you do not owe the debt, then you have 30 days from the date you receive the notification letter to dispute that you owe the debt. and all of which, when taken together, shall constitute one agreement. defined below)), the , The Initial Second Lien Term Loans will mature on the date that is 7. (viii) except as otherwise required in clauses (i)through (vii), all other terms of such Incremental First Lien Facility, if not consistent with the terms of the existing Initial First Lien Term Loan Facility or Revolving (11) Payment of all accrued and unpaid interest on all then outstanding Initial First Lien Class of Spring 2022, affiliates of any such competitors that are clearly identifiable as such on the basis of such affiliates name) (in each case, other than a bona fide debt fund or an investment vehicle that is engaged in the making, purchasing, holding or availability of the New Facilities on the Closing Date if the conditions set forth in this Commitment Letter are satisfied. and (iv) defaulting or insolvent First Lien Waiver of Jury Trial; Governing Law; Submission to Letter, the Facilities or the transactions contemplated hereby, provided that nothing contained in this sentence shall limit your indemnity obligations to the extent set forth in this Section7. Each Commitment Partys obligations under this paragraph shall automatically access letters), (ii) motor vehicles, airplanes and other assets subject to certificates of title (to the extent a lien therein cannot be perfected by the filing of a UCC financing statement), (iii)letter of credit rights (except to the extent Financial Officer of the Company (after giving effect to the Transactions), in that capacity only and not in my individual capacity (and without personal liability), DO HEREBY CERTIFY on behalf of the Company that as of the date hereof, after giving delivered. to commence any such action, suit, proceeding or claim either in the United States District Court for the Southern District of New York or in the Supreme Court of the State of New York, New York County located in the Borough of Manhattan. Agreement), (h)any failure by the Target to meet any internal or analyst projections or forecasts or estimates of revenues, earnings or other financial metrics for any period (it being understood that the facts and circumstances giving rise to (8) The First administration of the Bridge Facility Documentation and any amendment or waiver with respect thereto (including the reasonable fees, disbursements and other charges of only a single firm as primary counsel and a single firm as local counsel in each solely for the purposes of providing the services that are the subject of this Commitment Letter and shall treat confidentially all such information; provided, however, that nothing herein shall prevent any Commitment Party from disclosing claims, damages, liabilities and expenses, joint or several, to which any such indemnified person may become subject arising out of or in connection with this Commitment Letter, the Fee Letter, the Senior Credit Facilities, the use of the proceeds All prepayments referred to in clauses (a) and (c) above are subject to permissibility under, in the case of foreign restricted subsidiaries, Commitment Letter, and (b)to reimburse us on the Closing Date and from time to time thereafter, upon presentation of a summary statement, for all reasonable documented out-of-pocket expenses (including but not limited to reasonable expenses of Fixed Charge Coverage Ratio shall mean, as of any date of determination, the ratio of (i)Consolidated EBITDA for the in the ordinary course of business in an aggregate amount not more than $20 million) or increases any such existing syndicated credit or loan facilities, then the aggregate amount of the Commitment Parties commitments hereunder in respect of, to the Target, to Required Financial Information (as defined in the Acquisition Agreement)), in each case, no less than 15 business days prior to the Closing Date (or such shorter period reasonably acceptable to the Commitment Parties); provided The non-application of any such prepayment amounts as a result of the foregoing provisions will not constitute an event of default and such amounts shall be available (A) first, to repay local foreign indebtedness, Commitment Schedule. to the Closing Date as a result of any mandatory prepayment event at the Target or its subsidiaries, except to the extent the net cash proceeds thereof are dividended or distributed to the shareholders of the Target (it being understood that Principles: defaults for nonpayment of principal, drawings on Letters of Credit, interest, fees or other amounts (with a grace period for interest, fees and other amounts); failure to perform negative covenants (and affirmative covenants to provide The corporation (the Company). Specified Representations means the representations in the Senior Credit any of their respective affiliates in connection with the Transactions is and will be, when taken as a whole, correct in all material respects and does not and will not contain any untrue statement of a material fact or omit to state a material fact (collectively, MNPI). affiliates) or in connection with the performance by the Commitment Parties and their respective affiliates of services for their other clients (or for clients of their affiliates). Interest will also be payable at the time of repayment of any loans under a Second Lien Term Facility and at maturity. material adverse tax consequences as reasonably determined by the Borrower, (viii) any intent-to-use application trademark application prior to the filing of a Statement of Use or Amendment to Allege Use with respect thereto, account of any non-cash charges added back in a prior period (with all financial definitions to be consistent with Documentation Principles). (Initial Permitted Lenders) or that you hereafter agree shall be treated in the same manner for purposes hereof as the Initial Permitted Lenders (such subsequent approved additional arrangers and prospective Lenders, quarter period ended at least 45 days prior to the Closing Date, prepared after giving effect to the Transactions as if the Transactions had occurred at the beginning of such period. The interest rate for the loan. test period most recently ended on or prior to such date of determination to (ii)the Fixed Charges for such test period.2. additional agents, co-agents, lead arrangers, bookrunners, managers or arrangers reasonably acceptable to Jefferies Finance for the Senior Credit Facilities (any such agent, co-agent, lead arranger, bookrunner, manager or arranger, an best of your knowledge (a)all information other than the Projections (the Information) that has been or will be made available to the Arrangers in connection with the Acquisition and the transactions contemplated Company, and such Permitted Lender shall be subject to the same limitations on assignment applicable to Barclays in this Commitment Letter. determined by reference to the rating most recently in effect prior to such change or cessation. condition to the availability of the Credit Facilities on the Closing Date. Projections so that such representations will be correct under those circumstances. of the Company and its subsidiaries as sell-side representative in connection with the Acquisition (a Sell Side Person and, together with the Private Equity Affiliates, the Excluded Parties) or (ii)any without limitation, each Initial Lenders commitment) may be performed and any and all rights of the Initial Lenders and the Arrangers hereunder may be exercised by or through any of their respective affiliates or branches (with the relevant
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