TEAM HEALTH HOLDINGS INC. - FORM 10-Q - EX-10.2 - AMENDED AND RESTATED COMMITMENT LETTER

Attached files

file	filename
EX-31.1 - CERTIFICATION BY MIKE SNOW FOR TEAM HEALTH HOLDINGS, INC - SECTION 302 - TEAM HEALTH HOLDINGS INC.	tmh-exhibit_3119302015x10q.htm
EX-32.2 - CERTIFICATION BY DAVID JONES FOR TEAM HEALTH HOLDINGS, INC. - SECTION 906 - TEAM HEALTH HOLDINGS INC.	tmh-exhibit_3229302015x10q.htm
EX-32.1 - CERTIFICATION BY MIKE SNOW FOR TEAM HEALTH HOLDINGS, INC. - SECTION 906 - TEAM HEALTH HOLDINGS INC.	tmh-exhibit_3219302015x10q.htm
EX-10.3 - AMENDMENT NO. 1 TO THE AMENDED AND RESTATED CREDIT AGREEMENT - TEAM HEALTH HOLDINGS INC.	tmh-exhibit_103amendmentno1.htm
10-Q - 10-Q - TEAM HEALTH HOLDINGS INC.	tmh-10qx93015.htm
EX-31.2 - CERTIFICATION BY DAVID JONES FOR TEAM HEALTH HOLDINGS, INC. - SECTION 302 - TEAM HEALTH HOLDINGS INC.	tmh-exhibit_3129302015x10q.htm



CITIGROUP GLOBAL MARKETS INC. 388 Greenwich Street New York, New York 10013	BANK OF AMERICA, N.A. MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED One Bryant Park New York, NY 10036		JPMORGAN CHASE BANK, N.A. J.P. MORGAN SECURITIES LLC 383 Madison Avenue New York, NY 10179
BARCLAYS 745 Seventh Avenue New York, NY 10019	GOLDMAN SACHS BANK USA 200 West Street New York, New York 10282-2198		CITIZENS BANK, NATIONAL ASSOCIATION 28 State Street Boston, MA 02109 RBS SECURITIES INC. THE ROYAL BANK OF SCOTLAND PLC 600 Washington Boulevard Stamford, CT 06901
FIFTH THIRD BANK Fifth Third Center 38 Fountain Square Plaza Cincinnati, OH 45263	REGIONS BANK REGIONS CAPITAL MARKETS, A DIVISION OF REGIONS BANK 150 4th Avenue North, 10th Floor Nashville, TN 37219		COMPASS BANK BBVA SECURITIES INC. 2200 Post Oak Blvd. Houston, TX 77056
BANK OF MONTREAL BMO CAPITAL MARKETS CORP. 3 Times Square, 28th Floor New York, NY 10036		MIZUHO BANK LTD. 1251 Avenue of the Americas New York, NY 10020
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD. 1251 Avenue of the Americas New York, NY 10020-1104		KEYBANK NATIONAL ASSOCIATION KEYBANC CAPITAL MARKETS INC. 127 Public Square Cleveland, Ohio 44114

CONFIDENTIAL

August 25, 2015

Team Health Holdings, Inc.

Team Health, Inc.

265 Brookview Centre Way, Suite 400

Knoxville, Tennessee 37934

Attention: David Jones

Project Intrepid
Amended and Restated Commitment Letter

Ladies and Gentlemen:

Reference is made to (a) the Commitment Letter dated as of August 4, 2015 (the “Original Commitment Letter Date”), among Citigroup Global Markets Inc. and you (the “Original Commitment Letter”) and (b) the Commitment Side Letter dated as of August 4, 2015, among Citigroup Global Markets Inc. and you (the “Side Letter”). The parties to the Original Commitment Letter hereby agree to amend and restate the Original Commitment Letter and the Side Letter to read in their entirety as set forth below:

You have advised Citi (as defined below), Bank of America, N.A. (“BofA”), Merrill Lynch, Pierce, Fenner & Smith Incorporated (together with any of its designated affiliates, “MLPFS”), JPMorgan Chase Bank, N.A. (“JPMCB”), J.P. Morgan Securities LLC (“JPMorgan”), Barclays Bank PLC (“Barclays”), Goldman Sachs Bank USA (“GS”), Citizens Bank, National Association (“Citizens”), RBS Securities Inc. (“RBSSI”), The Royal Bank of Scotland plc (“RBS”), Fifth Third Bank (“Fifth Third”), Regions Bank (“Regions”), Regions Capital Markets, a division of Regions Bank (“Regions Capital”), Compass Bank (“Compass”), BBVA Securities Inc. (“BBVA”), Bank of Montreal (“BMO”), BMO Capital Markets Corp. (“BMO Capital”), Mizuho Bank Ltd. (“Mizuho”), The Bank of Tokyo-Mitsubishi UFJ, Ltd. (“BTMU”), KeyBank National Association (“KeyBank”) and KeyBanc Capital Markets Inc. (“KBCM”) (collectively, the “Commitment Parties,” “we” or “us”) that Team Health Holdings, Inc. (“Holdings”), through its wholly owned subsidiary, Intrepid Merger Sub, Inc., a Delaware corporation (“Acquisition Sub”), formed at your direction, intends to acquire a company previously identified to us and code named “Intrepid” (the “Company”) by way of merger, and to consummate the other transactions described in Exhibit A hereto. Capitalized terms used but not defined herein have the meanings assigned to them in the Exhibits attached hereto. For purposes of this Commitment Letter, “Citi” shall mean Citigroup Global Markets Inc., Citibank, N.A., Citigroup USA, Inc., Citicorp North America, Inc. and/or any of their affiliates as Citi shall determine to be appropriate to provide the services contemplated herein.

For purposes of this Commitment Letter (except as otherwise set forth herein or in the Term Sheets), (a) the term “Senior Facilities” shall mean (x) if the Backstopped Amendments are obtained on or prior to the Closing Date, solely the Term Loan B Facility and (y) if the Backstopped Amendments are not obtained on or prior to the Closing Date, the New Senior Facilities and (b) the term “Facilities” shall mean (x) if the Backstopped Amendments are obtained on or prior to the Closing Date, solely the Term Loan B Facility and the Senior Bridge Facility and (y) if the Backstopped Amendments are not obtained on or prior to the Closing Date, the New Senior Facilities and the Senior Bridge Facility.


1.	Commitments; Backstopped Amendments.

In connection with the Transactions, each of Citi, JPMCB, BofA, Citizens (or, in the case of the Senior Bridge Facility, RBS), GS, Barclays, Fifth Third, Regions, Compass, BMO, Mizuho, BTMU and KeyBank is pleased to advise you of its commitment to provide the portion of each of the Senior Facilities (as the amount thereof may be adjusted as set forth under the caption “New Senior Secured Credit Facilities” in the “Senior Secured Credit Facilities” Summary of Principal Terms and Conditions attached hereto as Exhibit B) and the Senior Bridge Facility (as the amount thereof may be adjusted as set forth under the caption “Principal Amount” in the “Senior Unsecured Increasing Rate Bridge Loans” Summary of Principal Terms and Conditions attached hereto as Exhibit C) set forth opposite such financial institution’s name on Schedule I hereto (each such financial institution, together with any of its designated affiliates of similar creditworthiness, an “Initial Lender” and collectively, the “Initial Lenders”), in each case, upon the terms and subject to the conditions set forth or referred to in this commitment letter (together with the Term Sheets, this “Commitment Letter”). The commitments of the Initial Lenders shall be several and not joint.

In addition to the foregoing, Citi is pleased to advise you of its agreement to use commercially reasonable efforts to arrange the Backstopped Amendments. In furtherance of the foregoing, each of the

Initial Lenders that is a party to the Existing Credit Agreement, in its capacity as a lender thereunder, hereby agrees to consent its respective commitments and outstanding loans under the Existing Credit Agreement to the Backstopped Amendments.


2.	Titles and Roles.

It is agreed that (a) Citi, MLPFS, JPMorgan, Barclays, GS, and Citizens (or, in the case of the Senior Bridge Facility, RBSSI) will act as joint lead arrangers (in such capacities, together with any of their respective designated affiliates of similar creditworthiness, the “Lead Arrangers”) and as joint bookrunners for each of the Facilities and the Backstopped Amendments; (b) Fifth Third, Regions Capital, Compass, BMO Capital, Mizuho, BTMU and KBCM will act as co-managers (in such capacities, together with any of their respective designated affiliates of similar creditworthiness, the “Co-Managers”); (c) if the Backstopped Amendments are not obtained on or prior to the Closing Date, Citibank, N.A. will act as administrative agent (the “Bank Administrative Agent”) for the Senior Facilities (it being understood and agreed that, if the Backstopped Amendments are obtained on or prior to the Closing Date, JPMorgan Chase Bank, N.A. will continue to act as administrative agent under the Existing Credit Agreement (as amended by the Backstopped Amendments)); and (d) Citibank, N.A. will act as administrative agent for the Senior Bridge Facility (the “Bridge Administrative Agent”; the Bridge Administrative Agent together with the Bank Administrative Agent, the “Administrative Agents”). It is further agreed that (i) Citi will appear on the top left of the cover page of any marketing materials for the Senior Facilities and the Backstopped Amendments and Citi will appear on the top left of the cover page of any marketing materials for the Senior Bridge Facility, and in each case will hold the roles and responsibilities conventionally understood to be associated with such name placement; (ii) MLPFS will appear on the same line as, and immediately to the right of, Citi on the cover page of any such marketing materials; and (iii) JPMorgan will appear on the same line as, and immediately to the right of MLPFS on the cover page of any such marketing materials. No compensation (other than that expressly contemplated by this Commitment Letter and the Fee Letter referred to below) will be paid or titles awarded, in each case, in connection with the Facilities unless you and the Commitment Parties shall so agree.


3.	Syndication.

The Commitment Parties reserve the right, prior to or after the execution of the Facilities Documentation (as defined below), to syndicate all or a portion of each Commitment Party’s commitments hereunder to a group of banks, financial institutions and other institutional lenders identified by the Commitment Parties in consultation with you and reasonably acceptable to you (with such consent not to be unreasonably withheld or delayed), including any relationship lenders designated by you in consultation with the Commitment Parties (together with the Initial Lenders, the “Lenders”); provided that, notwithstanding each Commitment Party’s right to syndicate the Facilities and receive commitments with respect thereto (and except in the case of an assignment by GS to Goldman Sachs Lending Partners LLC (“GSLP”)), no Commitment Party may assign all or any portion of its commitments hereunder until after the Closing Date and, unless you agree in writing, each Commitment Party shall retain exclusive control over all rights and obligations with respect to its commitments, including all rights with respect to consents, modifications, waivers and amendments, until the Closing Date has occurred. Notwithstanding the foregoing, the Commitment Parties will not syndicate to those banks, financial institutions and other institutional lenders and competitors of the Company and its subsidiaries separately identified in writing by you to us prior to the Original Commitment Letter Date, or with respect to competitors of the Company, separately identified in writing by you to us after the Original Commitment Letter Date (the foregoing, in each case inclusive of any affiliates thereof that are readily identifiable by name (other than a bona-fide debt fund), collectively, “Disqualified Lenders”). Without limiting your obligations to assist with syndication efforts as set forth

below, it is understood that the Initial Lenders’ commitments hereunder are not subject to commencement or completion of syndication of the Facilities.

The Lead Arrangers intend to commence syndication efforts promptly after your acceptance of this Commitment Letter and as part of their syndication efforts, it is the Lead Arrangers’ intent to have Lenders commit to the Facilities prior to the Closing Date. You agree to use your commercially reasonable efforts to assist the Lead Arrangers in completing a timely syndication that is reasonably satisfactory to them and you until the date that is the earlier of (a) 45 days after the Closing Date and (b) the later of the Closing Date and the date on which a successful syndication (as defined in the Fee Letter) is achieved (such earlier date, the “Syndication Date”). Such assistance shall include (a) your using commercially reasonable efforts to ensure that any syndication efforts benefit materially from your existing lending and investment banking relationships and, to the extent practical and appropriate and in all instances not in contravention of the terms of the Acquisition Agreement as in effect on the Original Commitment Letter Date, the existing lending and investment banking relationships of the Company, (b) direct contact between your senior management, representatives and advisors (and your using commercially reasonable efforts to arrange for direct contact between senior management, representatives of the Company, to the extent practical and appropriate and in all instances not in contravention of the terms of the Acquisition Agreement as in effect on the Original Commitment Letter Date) and the proposed Lenders at times and locations mutually agreed upon, (c) your assistance (and your using commercially reasonable efforts to cause the Company, to the extent practical and appropriate and in all instances not in contravention of the terms of the Acquisition Agreement as in effect on the Original Commitment Letter Date, to assist) in the preparation, at least 10 consecutive calendar days (which period, for the avoidance of doubt, will end on a business day) ending on the business day immediately prior to the Closing Date (excluding any “blackout dates” referred to in the Fee Letter), of customary confidential information memoranda (“Confidential Information Memoranda”) for the Senior Facilities (including, without limitation, the New Senior Facilities, as applicable), the Senior Bridge Facility and the Backstopped Amendments (all of which shall be in form and substance consistent with confidential information memoranda in your recent transactions) and other customary marketing materials to be used in connection with the syndications, and, at the request of the Lead Arrangers, the preparation of versions of the Confidential Information Memoranda that do not contain material non-public information concerning you, the Company, your or its respective subsidiaries or the respective securities of any of the foregoing for purposes of United States federal and state securities laws, (d) using your commercially reasonable efforts to procure, at least 10 consecutive calendar days (which period, for the avoidance of doubt, will end on a business day) ending on the business day immediately prior to the Closing Date (excluding any “blackout dates” referred to in the Fee Letter), corporate ratings for the Borrower and ratings for each of the Facilities (including, without limitation, the New Senior Facilities, as applicable) and the Senior Notes from each of Standard & Poor’s Ratings Services (“S&P”) and Moody’s Investors Service, Inc. (“Moody’s”), and (e) the hosting, with the Lead Arrangers, of one or more meetings (or, if agreed to by the Lead Arrangers, conference calls in lieu thereof) with prospective Lenders at times and, if applicable, locations to be mutually agreed upon. During the primary syndications of the Facilities on or prior to the Syndication Date, (i) you will ensure, and will use commercially reasonable efforts, to the extent practical and appropriate and in all instances not in contravention of the terms of the Acquisition Agreement as in effect on the Original Commitment Letter Date, to cause the Company to ensure that there will not be any competing issues of debt securities or syndicated credit facilities of you, the Company or any of your or its subsidiaries (other than the Facilities, the Senior Notes, any debt securities issued in lieu of the Senior Notes and any other debt securities or credit facilities disclosed to you prior to the date hereof) being offered, placed or arranged that would materially and adversely impair the primary syndication of the Facilities (it being understood that replacements, extensions and renewals of existing indebtedness of the Company and its subsidiaries, indebtedness of the Company and its subsidiaries incurred in the ordinary course of business, including short term debt for working capital, capital leases, purchase money debt, equipment financings and any

indebtedness of the Company and its subsidiaries permitted under the Acquisition Agreement as in effect on the Original Commitment Letter Date shall not be subject to this clause (i)) and (ii) you agree to use your commercially reasonable efforts to prepare and provide (and to use commercially reasonable efforts to cause the Company to provide, to the extent practical and appropriate and in all instances not in contravention of the terms of the Acquisition Agreement as in effect on the Original Commitment Letter Date) promptly to the Lead Arrangers all available customary information with respect to you, the Company and each of your and its respective subsidiaries, the Transactions and the other transactions contemplated hereby, including all financial information and projections relating to the Company and its subsidiaries (including financial estimates, forecasts and other forward-looking information) (the “Projections”), as the Lead Arrangers may reasonably request. For the avoidance of doubt, you will not be required to provide any information to the extent the provision thereof would violate any applicable law, rule or regulation or any obligation of confidentiality binding you, the Company or your or their respective affiliates (provided that in the case of any confidentiality obligation, (x) you shall have used commercially reasonable efforts to obtain consent to provide such information and (y) such obligation was not entered into in contemplation of this provision; provided, further, that you shall notify us if any such information is being withheld as a result of any such obligation of confidentiality). Notwithstanding anything to the contrary contained in this Commitment Letter or the Fee Letter, (i) neither the obtaining of the ratings referenced above nor the compliance with any of the other provisions set forth in clauses (a) through (e) 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 or any time thereafter and (ii) neither the commencement nor the completion of the syndication of the Facilities shall constitute a condition precedent to the Closing Date.

The Lead Arrangers will, in consultation with you, manage all aspects of any syndication, including decisions as to the selection of institutions to be approached (with your consent not to be unreasonably withheld and excluding Disqualified Lenders) and when they will be approached, when their commitments will be accepted, which institutions will participate (with your consent not to be unreasonably withheld and excluding Disqualified Lenders), the allocation of the commitments among the Lenders and the amount and distribution of fees among the Lenders.


4.	Information.

You hereby represent and warrant that (but the accuracy of which representation and warranty shall not be a condition to the commitments hereunder or the funding of the Facilities on the Closing Date) (a) (with respect to the Company and its subsidiaries, to the best of your knowledge) all written information and written data (such information and data, other than (i) the Projections and (ii) information of a general economic or general industry nature, the “Information”) that have been or will be made available to the Commitment Parties by you or any of your representatives, taken as a whole, 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 materially misleading in light of the circumstances under which such statements are made (after giving effect to all supplements and updates thereto) and (b) the Projections that have been or will be made available to the Commitment Parties by you, the Company or any of your or their respective representatives have been or will be prepared in good faith based upon assumptions that are believed by you to be reasonable at the time made and furnished; it being understood that any such financial projections are subject to significant uncertainties and contingencies, many of which are beyond your control, that no assurance can be given that any particular financial projections will be realized, that actual results may differ significantly from the projected results and that such differences may be material. You agree that, if at any time prior to the Syndication Date, you become aware that 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 (or prior to the Closing Date

with respect to Information or Projections concerning the Company and its subsidiaries, you will use commercially reasonable efforts (to the extent practical and appropriate and in all instances not in contravention of the terms of the Acquisition Agreement as in effect on the Original Commitment Letter Date)) to supplement the Information and the Projections so that (to the best of your knowledge, with respect to the Company and its subsidiaries) such representations will be correct in all material respects under those circumstances. In arranging and syndicating the Facilities and the Backstopped Amendments, the Lead Arrangers will be entitled to use and rely on the Information and the Projections without responsibility for independent verification thereof. We will have no obligation to conduct any independent evaluation or appraisal of the assets or liabilities of you, the Company or any other party or to advise or opine on any related solvency issues.

You hereby acknowledge that (a) the Lead Arrangers will make available Information and Projections to the proposed syndicate of Lenders and (b) certain of the Lenders may be “public side” Lenders (i.e. Lenders that do not wish to receive material non-public information with respect to you, the Company, your or its respective subsidiaries or the respective securities of any of the foregoing) (each, a “Public Lender”). You hereby acknowledge that the Commitment Parties will make available Information, Projections and other offering and marketing material and presentations, including confidential information memoranda to be used in connection with the syndication of the Facilities to the proposed syndicate of Lenders, by posting the Information and Projections on Intralinks, SyndTrak Online or by similar electronic means (collectively, the “Platform”). At the request of the Lead Arrangers, you agree to assist us in preparing an additional version of each Confidential Information Memorandum to be used by Public Lenders. The information to be included in the additional version of each Confidential Information Memorandum will consist exclusively of information and documentation that is either publicly available, not material with respect to you, the Company, your or its respective subsidiaries or the respective securities of any of the foregoing for purposes of United States federal and state securities laws or of the type that is made publicly available by you or the Company, as applicable, as a public reporting company (as reasonably determined by you or the Company, as applicable). It is understood that in connection with your assistance described above, (a) customary authorization letters will be included in each Confidential Information Memorandum that authorize the distribution of such Confidential Information Memorandum to prospective Lenders, contain customary representations confirming that the public-side version does not include material non-public information about you, the Company, your or its respective subsidiaries or the respective securities of any of the foregoing, and exculpate us with respect to any liability related to the use of the contents of such Confidential Information Memorandum or any related marketing material by the recipients thereof and exculpate you, the Company and your and their respective affiliates with respect to any liability related to the misuse of the contents of such Confidential Information Memorandum or any related marketing material by the recipients thereof; (b) the public information shall include the following information except to the extent you notify us to the contrary and provided that you shall have been given a reasonable opportunity to review such documents and comply with the U.S. Securities and Exchange Commission disclosure requirements (and such public information is permitted to be made available to all prospective Lenders, including through a Platform designated “Public Lenders”): (i) drafts and final definitive documentation with respect to the Facilities and the Backstopped Amendments, including term sheets, (ii) administrative materials prepared by the Commitment Parties for prospective Lenders (such as a lender meeting or call invitation, allocations and funding and closing memoranda) and (iii) notification of changes in the terms of the Facilities or the Backstopped Amendments; (c) at our request, you shall identify information to be distributed to Public Lenders by clearly and conspicuously marking the same as “PUBLIC”; and (d) we shall be entitled to treat any Information and Projections that are not specifically identified as “PUBLIC” as being suitable only for posting on a portion of the Platform not designated for Public Lenders.


5.	Fees.

As consideration for the commitments of the Initial Lenders hereunder and the Lead Arrangers’ and Co-Managers’ agreements to perform the services described herein, you agree to pay the fees set forth in this Commitment Letter and in the Amended and Restated Fee Letter and the Administrative Agent Fee Letter, each dated the date hereof and delivered herewith with respect to the Facilities (collectively, the “Fee Letter”). Once paid, such fees shall not be refundable under any circumstances, except as otherwise contemplated by the Fee Letter.


6.	Conditions Precedent.

The commitments of the Initial Lenders hereunder and the Lead Arrangers’ and Co-Managers’ agreements to perform the services described herein are subject only to (a) the execution and delivery by the Borrower (and Guarantors, as applicable) to the Bank Administrative Agent of definitive documentation with respect to the Senior Facilities and, if applicable, separate definitive documentation to the Bank Administrative Agent with respect to the Backstopped Amendments and, if applicable, separate definitive documentation to the Bridge Administrative Agent with respect to the Senior Bridge Facility (collectively, the “Facilities Documentation”), in each case, which shall be consistent with the applicable Term Sheet and the applicable Documentation Principles and shall be subject to the Limited Conditionality Provision (as defined below) and (b) (i) with respect to the Senior Facilities, the conditions set forth in Exhibit B under the headings titled “Conditions Precedent to Initial Borrowing” and “Conditions Precedent to all Borrowings”, (ii) with respect to the Senior Bridge Facility, the conditions set forth in Exhibit C under the heading titled “Conditions Precedent to Senior Bridge Loans” and (iii) with respect to each of the Facilities, as applicable, the conditions set forth in Exhibit D (clauses (a) and (b) collectively, the “Funding Conditions”); it being understood that there are no conditions (implied or otherwise) to the commitments hereunder (including compliance with the terms of this Commitment Letter, the Fee Letter and the Facilities Documentation) other than the Funding Conditions that are expressly stated to be conditions to the initial funding under the Facilities on the Closing Date (and upon satisfaction or waiver of such conditions, the initial funding under the Facilities shall occur).

Notwithstanding anything to the contrary in this Commitment Letter (including each of the exhibits attached hereto), the Fee Letter, the Facilities Documentation or any other letter agreement or other undertaking concerning the financing of the Transactions, (i) the only representations and warranties the accuracy of which shall be a condition to availability of the Facilities on the Closing Date shall be (A) such of the representations and warranties made by the Company in the Acquisition Agreement as are material to the interests of the Lenders, but only to the extent that you (or your applicable affiliates) have the right (taking into account any applicable cure provisions) to terminate your (or such affiliates’) obligations under the Acquisition Agreement, or to decline to consummate the Acquisition (in each case, in accordance with the terms thereof), as a result of a breach of such representations and warranties (the “Acquisition Agreement Representations”), and (B) the Specified Representations (as defined below) made by the Borrower and the Guarantors in the Facilities Documentation and (ii) the terms of the Facilities Documentation and the Closing Deliverables shall be in a form such that they do not impair the availability of the Facilities on the Closing Date if the conditions expressly set forth herein and in the Term Sheets are satisfied (it being understood that, to the extent any Collateral (other than assets of Holdings, the Borrower and domestic Guarantors with respect to which a lien may be perfected solely by the filing of a financing statement under the Uniform Commercial Code and the delivery of stock certificates and certificated LLC interests of the Borrower and to the extent delivered to you by the Company prior to the Closing Date (after your use of commercially reasonable efforts to obtain such stock certificates and certificated LLC interests (if any)), material (to be defined in a manner to be agreed) wholly-owned domestic restricted subsidiaries) is not or cannot be provided or perfected on the Closing Date after your use of commercially reasonable efforts to do so or without undue burden or expense, the provision and/or perfection of such Collateral shall not constitute a condition precedent

to the availability of the Facilities on the Closing Date, but shall be required to be provided and/or perfected within 90 days after the Closing Date (subject to extensions as agreed by the Bank Administrative Agent in its reasonable discretion). For purposes hereof, “Specified Representations” means the representations and warranties of the Borrower and the Guarantors (after giving effect to the Acquisition) set forth in the Facilities Documentation relating to corporate or other organizational existence of Holdings, the Borrower and the Guarantors (prior to giving effect to the Acquisition); organizational power and authority (as to execution, delivery and performance of the applicable Facilities Documentation); the due authorization, execution, delivery and enforceability of the applicable Facilities Documentation; Federal Reserve margin regulations; the Investment Company Act; the creation, validity and perfection of security interests in the Collateral (subject to permitted liens and the limitations set forth in the preceding sentence); no conflicts of the applicable Facilities Documentation (limited to the execution, delivery and performance of the applicable Facilities Documentation, incurrence of the indebtedness thereunder and the granting of the guarantees and the security interests in respect thereof) with charter documents of the Borrower or any Guarantor; solvency as of the Closing Date (after giving effect to the Transactions) of the Borrower and its subsidiaries on a consolidated basis (to be determined in a manner consistent with the solvency certificate to be delivered in the form set forth in Annex I attached to Exhibit D); PATRIOT ACT; and use of the proceeds of the Facilities not violating FCPA, OFAC and other anti-terrorism laws. This paragraph shall be referred to herein as the “Limited Conditionality Provision”.


7.	Indemnification; Expenses.

You agree (a) to indemnify and hold harmless each of the Commitment Parties and each of their respective affiliates and controlling persons and the respective officers, directors, employees, successors, partners, agents, advisors and representatives of each of the foregoing (each, an “Indemnified Person”) from and against any and all losses, claims, damages, liabilities and out-of-pocket expenses, joint or several, to which any such Indemnified Person may become subject arising out of, resulting from or in connection with this Commitment Letter, the Fee Letter, the Transactions or the Facilities, or any claim, litigation, investigation or proceeding (any of the foregoing, an “Action”) relating to any of the foregoing and regardless of whether brought by you or any of your affiliates or any other person or against any person, including the Company, its security holders and its other affiliates, regardless of whether any such Indemnified Person is a party thereto, and to reimburse each such Indemnified Person within 30 days after receipt of a written request together with reasonably detailed backup documentation for any reasonable legal (limited to one counsel for all Indemnified Persons, taken as a whole, and, if reasonably necessary, a single local counsel to all Indemnified Persons, taken as a whole, in each relevant material jurisdiction and, solely in the case of a conflict of interest, one additional counsel in each applicable material jurisdiction to the affected Indemnified Persons similarly situated taken as a whole) or other reasonable out-of-pocket expenses incurred in connection with investigating or defending any of the foregoing; provided, that the foregoing indemnity will not, as to any Indemnified Person, apply to losses, claims, damages, liabilities or related expenses (i) to the extent resulting from the willful misconduct, bad faith or gross negligence of such Indemnified Person or any of its affiliates or controlling persons or any of the officers, directors, employees, partners, successors, agents, advisors or representatives of any of the foregoing, (ii) to the extent arising from a material breach of the obligations of such Indemnified Person or any of its affiliates or controlling persons or any of the officers, directors, employees, partners, successors, agents, advisors or representatives of any of the foregoing under this Commitment Letter, the Fee Letter or the Facilities Documentation (in the case of each of preceding clauses (i) and (ii), as determined by a court of competent jurisdiction in a final and non-appealable judgment) or (iii) to the extent arising from any dispute solely among Indemnified Persons other than claims against any Commitment Party in its capacity or in fulfilling its role as an Administrative Agent or arranger or any similar role under any Facility and other than any claims arising out of any act or omission on the part of you or your affiliates, and (b) to reimburse each Commitment Party and each Indemnified Person from time

to time, upon presentation of a summary statement, together with any supporting documentation reasonably requested by you, for all reasonable and documented out-of-pocket expenses (including but not limited to out-of-pocket expenses of the Commitment Parties’ due diligence investigation, syndication expenses, travel expenses and reasonable fees, disbursements and other charges of counsel to the Commitment Parties identified in the Term Sheets (and you acknowledge that we may receive a benefit, including, without limitation, a discount, credit or other accommodation, from such counsel based on the fees such counsel may receive on account of their relationship with us including, without limitation, fees paid pursuant hereto) and, if necessary, of a single local counsel to the Commitment Parties in each relevant material jurisdiction), in each case incurred in connection with the Facilities and the preparation of this Commitment Letter, the Fee Letter, the Facilities Documentation and any security arrangements in connection therewith (collectively, the “Expenses”); provided, that you shall not be required to reimburse any of the Expenses in the event the Closing Date does not occur. Notwithstanding any other provision of this Commitment Letter, (i) 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, except to the extent such damages have resulted from (in each case as finally determined by a court of competent jurisdiction in a final and non-appealable judgment) the willful misconduct, bad faith or gross negligence of such Indemnified Person or any of its affiliates or controlling persons or any of the officers, directors, employees, partners, agents, advisors or representatives of any of the foregoing, and (ii) neither (x) any Indemnified Person, nor (y) you (or any of your subsidiaries or affiliates) or the Company (or any of its subsidiaries or affiliates) shall be liable for any indirect, special, punitive or consequential damages (in the case of clause (y), other than in respect of any such damages required to be indemnified under this Section 7) in connection with this Commitment Letter, the Facilities, the Transactions (including the Facilities and the use of proceeds thereunder), or with respect to any activities related to the Facilities. No Indemnified Person seeking indemnification or reimbursement under this Commitment Letter will, without your prior written consent (not to be unreasonably withheld, delayed or conditioned), settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any Action referred to herein. Notwithstanding the immediately preceding sentence, if at any time an Indemnified Person shall have requested in accordance with this Commitment Letter that you reimburse such Indemnified Person for legal or other expenses in connection with investigating, responding to or defending any Action, you shall be liable for any settlement of any Action effected without your written consent if (a) such settlement is entered into more than 30 days after receipt by you of such request for reimbursement and (b) you shall not have reimbursed such Indemnified Person in accordance with such request prior to the date of such settlement. You shall not, without the prior written consent of the affected Indemnified Person (which consent shall not be unreasonably withheld, delayed or conditioned), effect any settlement of any pending or threatened Action against such Indemnified Person in respect of which indemnity has been sought hereunder by such Indemnified Person unless such settlement (i) includes an unconditional release of such Indemnified Person in form and substance reasonably satisfactory to such Indemnified Person from all liability or claims that are the subject matter of such Action and (ii) does not include any statement as to any admission of fault.


8.	Sharing Information; Absence of Fiduciary Relationship; Affiliate Activities.

You acknowledge that the Commitment Parties and their affiliates may be providing debt financing, equity capital or other services (including, without limitation, investment banking and financial advisory services, securities trading, hedging, financing and brokerage activities and financial planning and benefits counseling) to other companies in respect of which you may have conflicting interests.

We will not furnish confidential information obtained from you by virtue of the transactions contemplated by this Commitment Letter or our other relationships with you to other companies (except as contemplated below). You also acknowledge that we do not have any obligation to use in connection with

the transactions contemplated by this Commitment Letter, or to furnish to you, confidential information obtained by us or any of our respective affiliates from other companies.

You further acknowledge and agree that (a) no fiduciary, advisory or agency relationship between you and any Commitment Party is intended to be or has been created in respect of any of the transactions contemplated by this Commitment Letter, irrespective of whether such Commitment Party has advised or is advising you on other matters, (b) each Commitment Party, on the one hand, and you, on the other hand, have an arm’s-length business relationship that does not directly or indirectly give rise to, nor do you rely on, any fiduciary duty on the part of such Commitment Party and you waive, to the fullest extent permitted by law, any claims you may have against us for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the Transactions and agree that we will have no liability (whether direct or indirect) to you in respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim on your behalf, including equity holders, employees or creditors, (c) you are capable of evaluating and understanding, and you understand and accept, the terms, risks and conditions of the transactions contemplated by this Commitment Letter and you have consulted with your own legal and financial advisors to the extent you have deemed appropriate and (d) you have been advised that each Commitment Party and its affiliates is engaged in a broad range of transactions that may involve interests that differ from your interests and that no Commitment Party has an obligation to disclose such interests and transactions to you by virtue of any fiduciary, advisory or agency relationship. In addition, the Commitment Parties may employ the services of their respective affiliates in providing certain services hereunder and may exchange with such affiliates information concerning you and the Company and other companies in the industry of the Company, and such affiliates shall be entitled to the benefits afforded to, and subject to the obligations of, the Commitment Parties hereunder. You acknowledge and agree that neither we nor our affiliates have provided you with legal, tax or accounting advice and that you have obtained such independent advice from your own advisors.

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


9.	Assignments; Amendments; Governing Law, Etc.

This Commitment Letter, the Fee Letter and the commitments hereunder shall not be assignable by any party hereto (except by you on or prior to the Closing Date to the ultimate borrower under the Facilities or another newly-formed shell entity organized in the United States so long as any such entity is directly or indirectly controlled by Holdings) (and except in the case of an assignment by GS to GSLP) without the prior written consent of each other party hereto (and any attempted assignment without such consent shall be null and void), is intended to be solely for the benefit of the parties hereto (and Indemnified Persons), is not intended to confer any benefits upon, or create any rights in favor of, any person other than the parties hereto (and Indemnified Persons) and is not intended to create a fiduciary relationship among the parties hereto. Subject to the limitations set forth in Section 3, any and all services to be provided by the Commitment Parties hereunder may be performed by or through any of their respective affiliates or branches and the provisions of Section 7 shall apply with equal force and effect to any such entities so performing any such

duties or activities. This Commitment Letter may not be amended or any provision hereof waived or modified except by an instrument in writing signed by the Commitment Parties and you. 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. Delivery of an executed counterpart of a signature page of this Commitment Letter by facsimile transmission or by “.pdf” or similar electronic transmission shall be effective as delivery of a manually executed counterpart hereof. Section headings used herein are for convenience of reference only, are not part of this Commitment Letter and are not to affect the construction of, or to be taken into consideration in interpreting, this Commitment Letter. You acknowledge that information and documents relating to the Facilities may be transmitted through SyndTrak, Intralinks, the internet, e-mail, or similar electronic transmission systems, and, notwithstanding anything herein to the contrary, that the Commitment Parties shall not be liable for any damages arising from the unauthorized use by others of information or documents transmitted in such manner unless resulting from the gross negligence, bad faith or willful misconduct, as determined by a court of competent jurisdiction in a final and non-appealable judgment, of such Commitment Party or any of its affiliates or controlling persons or any of the officers, directors, employees, partners, agents, representatives, successors or assigns of any of the foregoing. This Commitment Letter, together with the Fee Letter dated the date hereof, supersedes all prior understandings, whether written or oral, among us with respect to the Facilities and sets forth the entire understanding of the parties hereto with respect thereto. THIS COMMITMENT LETTER AND ANY CLAIM, CONTROVERSY OR DISPUTE (WHETHER IN CONTRACT, TORT OR OTHERWISE) ARISING UNDER OR RELATED TO THIS COMMITMENT LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK; provided, however, that (a) the interpretation of the definition of Company Material Adverse Effect (as defined in the Acquisition Agreement) and whether there shall have occurred a Company Material Adverse Effect (as defined in the Acquisition Agreement), (b) whether the Acquisition has been consummated as contemplated by the Acquisition Agreement and (c) whether the representations and warranties made by the Company in the Acquisition Agreement are accurate and whether as a result of any inaccuracy thereof you have the right to terminate your obligations under the Acquisition Agreement, shall be determined in accordance with the laws of the State of Delaware without regard to conflict of laws principles that would result in the application of the laws of another jurisdiction.

Each of the parties hereto agrees that this Commitment Letter is a binding and enforceable agreement with respect to the subject matter contained herein, including the good faith negotiation of the Facilities Documentation by the parties hereto in a manner consistent with this Commitment Letter, it being understood and agreed that the commitments provided hereunder by the Commitment Parties and the funding of the Facilities on the Closing Date are subject only to the Funding Conditions.


10.	WAIVER OF JURY TRIAL.

EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY OR ON BEHALF OF ANY PARTY RELATED TO OR ARISING OUT OF THIS COMMITMENT LETTER, THE FEE LETTER OR THE PERFORMANCE OF SERVICES HEREUNDER OR THEREUNDER.


11.	Jurisdiction.

Each of the parties hereto hereby irrevocably and unconditionally (a) submits, for itself and its property, to the exclusive jurisdiction of (i) any New York State court or Federal court of the United States of America sitting in City of New York, Borough of Manhattan, and any appellate court from any thereof, as to any action or proceeding arising out of or relating to this Commitment Letter, the Fee Letter or the

transactions contemplated hereby or thereby, or for recognition or enforcement of any judgment, and agrees that all claims in respect of any such action or proceeding shall be heard and determined in such New York State court or, to the extent permitted by law, in such Federal court, and further agrees to not commence any such suit, action or proceeding other than in such New York State court or, to the extent permitted by law, in such Federal court, (b) waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Commitment Letter, the Fee Letter or the transactions contemplated hereby or thereby in any court in which such venue may be laid in accordance with clause (a) of this sentence, (c) waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court and (d) agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Service of any process, summons, notice or document by registered mail or overnight courier addressed to any of the parties hereto at the addresses set forth above shall be effective service of process against such party for any suit, action or proceeding brought in any such court.


12.	Confidentiality.

This Commitment Letter is delivered to you on the understanding that none of the Fee Letter, or, prior to the date hereof, this Commitment Letter, or their terms or substance shall be disclosed, directly or indirectly, to any other person or entity (including other lenders, underwriters, placement agents, advisors or any similar persons) except (a) to your officers, directors, employees, affiliates, members, partners, stockholders, attorneys, accountants, agents and advisors and on a confidential basis, (b) if the Commitment Parties consent to such proposed disclosure, (c) you may disclose the Term Sheets and the existence of the Commitment Letter to any rating agency in connection with the Transactions or (d) 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 regulation or as requested by a governmental authority (in which case you agree to inform us promptly thereof to the extent lawfully permitted to do so); provided that (i) you may disclose this Commitment Letter and the contents thereof (but not the Fee Letter and the contents thereof, except on a redacted basis in a manner reasonably acceptable to the Lead Arrangers as to the amount or percentages of any fees, market flex provisions, securities demand and pricing caps) to the Company and its officers, directors, employees, attorneys, accountants, agents and advisors, on a confidential basis, (ii) you may disclose the Fee Letter and the contents thereof as part of generic disclosure regarding fees and expenses in connection with any syndication of the Facilities or prospectus or offering memorandum related to the Senior Notes (or any securities issued in lieu of the Senior Notes), or to the Company and its officers, directors, employees, attorneys, accountants, agents and advisors to confirm the absence of additional conditions precedent to the funding of the Facilities and the absence of any “flex” or similar terms that would decrease the amount of the Facilities (but in each case within this clause (ii), without disclosing any specific fees set forth therein), or on a redacted basis in a manner reasonably acceptable to the Commitment Parties or for customary accounting purposes, including accounting for deferred financing costs and (iii) you may disclose this Commitment Letter and the contents hereof (but not the Fee Letter and the contents thereof) in any syndication of the Facilities or in any prospectus or other offering memorandum related to the Senior Notes (or any debt securities issued in lieu of the Senior Notes) or in any proxy statement or other public filing in connection with the Acquisition. Your obligations under this paragraph with regard to this Commitment Letter (but not the Fee Letter) shall terminate on the earlier of (x) the second anniversary of the Original Commitment Letter Date or (y) one year following the termination of this Commitment Letter in accordance with its terms.

Each Commitment Party and its affiliates will use all confidential information provided to it or such affiliates by or on behalf of you hereunder solely for the purpose of providing the services which are the

subject of this Commitment Letter and shall treat confidentially all such information; provided that nothing herein shall prevent a Commitment Party from disclosing any such information (a) 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 regulation or as requested by a governmental authority (in which case such Commitment Party, to the extent permitted by law, agrees to inform you promptly thereof), (b) upon the request or demand of any regulatory authority or stock exchange having jurisdiction over such Commitment Party or any of its affiliates (in which case such Commitment Party agrees to inform you promptly thereof prior to such disclosure to the extent practicable, unless such Commitment Party is prohibited by applicable law from so informing you, or except in connection with any request as part of a regulatory examination), (c) to the extent that such information becomes publicly available other than by reason of improper disclosure by such Commitment Party or any of its affiliates in violation of this Commitment Letter, (d) 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 or the Company, (e) to the extent that such information is independently developed by such Commitment Party so long as not based on information obtained in a manner that would otherwise violate this provision, (f) to such Commitment Party’s affiliates and its and its affiliates’ respective employees, legal counsel, independent auditors and other experts or agents (collectively, the “Representatives”) who need to know such information in connection with the Transactions and are informed of the confidential nature of such information (provided that such Commitment Party shall be responsible for its affiliates and Representatives’ compliance with this paragraph), (g) to prospective Lenders, participants or assignees or any potential counterparty (or its advisors) to any swap or derivative transaction relating to the Borrower or any of its subsidiaries or any of their respective obligations, in each case who agree to be bound by the terms of this paragraph (or language substantially similar to this paragraph), (h) for purposes of establishing a “due diligence” defense or (i) to ratings agencies in connection with the Transactions; provided that (i) the disclosure of any such information to any Lenders or prospective Lenders or participants or assignees or prospective participants or assignees referred to above shall be made subject to the acknowledgement and acceptance by such Lender or prospective Lender or assignee or participant or prospective assignee or participant that such information is being disseminated on a confidential basis (on substantially the terms set forth in this paragraph or as is otherwise reasonably acceptable to you and such Commitment Party, including, without limitation, as agreed in any marketing materials for the Facilities) in accordance with the standard syndication processes of such Commitment Party or customary market standards for dissemination of such type of information and (ii) no disclosure shall be made by such Commitment Party to any Disqualified Lender. Each Commitment Party’s obligations under this paragraph shall terminate on the earlier of (x) the second anniversary of the Original Commitment Letter Date or (y) one year following the termination of this Commitment Letter in accordance with its terms and shall otherwise automatically terminate and be superseded by the confidentiality provisions in the definitive documentation relating to each of the Facilities and/or the Backstopped Amendments upon the execution and delivery of the definitive documentation therefor.


13.	Surviving Provisions.

The indemnification, expense reimbursement, compensation (if applicable), confidentiality, syndication (if applicable), jurisdiction, venue, governing law, waiver of jury trial and absence of fiduciary duty provisions contained herein 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 Initial Lenders’ commitments hereunder and the Lead Arrangers’ and the Co-Managers’ agreements to provide the services described herein; provided that your obligations under this Commitment Letter, other than those relating to confidentiality and to the syndication of the Facilities (if such Facilities have been funded) and your obligations under the second sentence of Section 4 (if such Facilities have been funded), shall automatically terminate and be superseded by the

definitive documentation relating to the Facilities to the extent covered thereby upon the initial funding under the Senior Facilities, and you shall be released from all liability in connection therewith at such time.


14.	PATRIOT ACT Notification.

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”), each Commitment Party and each Lender is required to obtain, verify and record information that identifies the Borrower and Guarantors, which information includes the name, address, tax identification number and other information regarding the Borrower and Guarantors that will allow such Commitment Party or such Lender to identify the Borrower and Guarantors in accordance with the Patriot Act. This notice is given in accordance with the requirements of the Patriot Act and is effective as to the Commitment Parties and each Lender. You hereby acknowledge and agree that the Commitment Parties shall be permitted to share any or all such information with the Lenders.


15.	Acceptance and Termination.

If the foregoing correctly sets forth our agreement, please indicate your acceptance of the terms of this Commitment Letter and of the Fee Letter by returning to the Citi, on behalf of the Commitment Parties, executed counterparts hereof and of the Fee Letter not later than 11:59 p.m., New York City time, on August 26, 2015. Each Commitment Party’s respective commitments hereunder and agreements contained herein will expire at such time in the event that Citi has not received such executed counterparts in accordance with the immediately preceding sentence. In the event that either (x) the initial borrowing in respect of the Senior Facilities does not occur on or before 11:59 p.m., New York City time, on the date that is no earlier than five business days after the Termination Date (as defined in the Acquisition Agreement as in effect on the Original Commitment Letter Date) or (y) the Acquisition Agreement is validly terminated prior to consummation of the Acquisition, then this Commitment Letter and the commitments and undertakings of the Commitment Parties hereunder shall automatically terminate. Additionally, the commitment of each Commitment Party with respect to the Senior Bridge Facility shall terminate in the event the Acquisition is consummated without any borrowings under the Senior Bridge Facility.

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

[signature pages follow]

Very truly yours,



CITIGROUP GLOBAL MARKETS INC.

By:

	Name:
	Title: