Exhibit 10.11


 


	
  BANK OF AMERICA, N.A.

  BANC OF AMERICA BRIDGE LLC

  BANC OF AMERICA SECURITIES LLC

  9 West 57th Street

  New York, NY 10019

  	
  CREDIT SUISSE

  CREDIT SUISSE SECURITIES (USA) LLC

  Eleven Madison Avenue

  New York, NY 10010

  
	
  GOLDMAN SACHS CREDIT
  PARTNERS L.P.

  85 Broad Street

  New York, New York  10004

   

  	
  LEHMAN BROTHERS INC.

  LEHMAN BROTHERS COMMERCIAL BANK

  LEHMAN COMMERCIAL PAPER INC.

  745 Seventh Avenue

  New York, New York 
  10019

  



 


CONFIDENTIAL


June 22, 2007


KHI Merger Sub Inc.

c/o Kohlberg Kravis Roberts & Co. L.P.


9 West 57th Street, Suite 4200


New York, NY 10019


Attention: Brian Carroll


 


 


 


Project Harmony

Amended and Restated Commitment Letter


Ladies
and Gentlemen:


                This Amended and Restated
Commitment Letter amends and restates in its entirety the Commitment Letter,
dated as of April 26, 2007 (the “Original Letter”) by and among Newco (as
defined below) and the Agents (as defined below) and supersedes it in all
respects.


You have advised us that a newly created
entity (“Newco” or “you”), formed at the direction of
the Sponsor, intends to acquire (the “Acquisition”)
the company previously identified to us in connection herewith (the “Company”).  You have further advised each of Bank of
America, N.A. (“Bank of America”),
Banc of America Bridge LLC (“Banc of America
Bridge”), Banc of America Securities LLC (“BAS”), Credit
Suisse (“CS”), Credit Suisse
Securities (USA) LLC (“CS Securities”
and, together with CS and their collective affiliates, “Credit
Suisse”), Goldman Sachs Credit Partners L.P. (“GSCP”), Lehman Commercial Paper Inc.
and/or Lehman Brothers Commercial Bank or an affiliate of either thereof
(collectively, the “Lehman Lenders”) and Lehman
Brothers Inc. (“LBI” and, together with the
Lehman Lenders, “Lehman”) (collectively, the “Agents”, “we”
or “us”) and Bayerische Hypo- und Vereinsbank AG, New York Branch (“HVB”; together
with the Agents, the “Commitment Parties”) that, in connection with the foregoing, you intend
to consummate the other Transactions described in the Transaction Description
attached hereto as Exhibit A (the “Transaction Description”).


 

















 


Capitalized terms used but not defined herein shall have the meanings
assigned to them in the Transaction Description and the Summaries of Principal
Terms and Conditions attached hereto as Exhibits B, C and D (the “Term Sheets”; this commitment
letter, the Transaction Description, the Term Sheets and the Summary of
Additional Conditions attached hereto as Exhibit E, collectively, the “Commitment Letter”).


In
connection with the foregoing, (a) each of Bank of America, Credit Suisse,
GSCP, HVB and Lehman Lenders is pleased to advise you of its commitment to
provide 24.910%, 19.740%, 27.260%, 6.000% and 22.090%, respectively, of each of
the Senior Secured Facilities, and (b) each of Banc of America Bridge, Credit
Suisse, GSCP, HVB and Lehman Lenders is pleased to advise you of its commitment
to, severally and not jointly, provide 24.910%, 19.740%, 27.260%, 6.000% and
22.090%, respectively, of the Bridge Facilities, in each case subject only to
the conditions set forth in the second sentence of the ninth paragraph of this
Commitment Letter, in the section entitled “Conditions to All Borrowings” in
Exhibit B hereto and in Exhibit E hereto (the foregoing facilities being
referred to as the “Facilities”).  You have further advised Bank of America,
Banc of America Bridge, Credit Suisse, GSCP, HVB and Lehman Lenders that, in
connection therewith, it is intended that the financing for the Transactions
will include (a) the senior secured credit facilities (the “Senior Secured Facilities”)
described in the Summary of Principal Terms and Conditions attached hereto as
Exhibit B (the “Senior Secured Facilities Term Sheet”),
in an aggregate principal amount of up to $3,450 million, comprised of a $2,900
million senior secured term loan facility and a $550 million senior secured
revolving credit facility, (b) at your option, either (i) up to $1,160 million
in aggregate principal amount of senior unsecured notes (the “Senior Unsecured  Notes”) in a Rule 144A private
placement or (ii) if the Senior Unsecured Notes are not issued on or prior to
the Closing Date (as defined below), up to $1,160 million of senior unsecured
increasing rate loans (the “Senior Unsecured
Bridge Loans”) under the senior
unsecured credit facility (the “Senior Unsecured
Bridge Facility”) described in the
Summary of Principal Terms and Conditions attached hereto as Exhibit C (the “Senior Unsecured  Bridge Term Sheet”) and (c) at your
option, either (i) up to $580 million in aggregate principal amount of senior subordinated
notes (the “Senior Subordinated  Notes”; and together with the Senior
Unsecured Notes, the “Notes”) in
a Rule 144A private placement or (ii) if the Senior Subordinated Notes are not
issued on or prior to the Closing Date, up to $580 million of senior
subordinated increasing rate loans (the “Senior Subordinated
Bridge Loans”; and together with the
Senior Unsecured Bridge Loans, the “Bridge Loans”)
under the senior subordinated credit facility (the “Senior
Subordinated  Bridge Facility”;
and together with the Senior Unsecured Bridge Facility, the “Bridge Facilities”) described in the
Summary of Principal Terms and Conditions attached hereto as Exhibit D (the “Senior Subordinated  Bridge Term Sheet” and, together
with the Senior Secured Facilities Term Sheet and the Senior Unsecured Bridge
Term Sheet, the “Term Sheets”).  The Senior Secured Facilities and the Bridge
Facilities are collectively referred to herein as the “Facilities”.


At your option, up to 60% of the aggregate
amount of the Facilities and the Notes may be denominated in euros and, all or
a portion of any such euro-denominated tranche may be borrowed or issued by a
foreign subsidiary of the Borrower organized in Germany or another jurisdiction
reasonably acceptable to the Commitment Parties. Euro-denominated borrowings
may be allocated across the Facilities and the Notes in a manner determined by
you in consultation with the Lead Arrangers (as defined below) (it is
understood that, to the extent any


 


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foreign subsidiary  borrows or
issues any such indebtedness, to the extent the context requires, such
subsidiary shall also be considered a “Borrower” hereunder).


It
is agreed that each of BAS, CS Securities, GSCP and LBI will act as a joint lead
arranger, joint bookrunner and co-documentation agent for each of the
Facilities (in such capacity, each, a “Lead Arranger”
and, collectively, the “Lead Arrangers”)
and that HVB will act as co-documentation agent for each of the
Facilities.  It is further agreed that
(a) in connection with the Confidential Information Memorandum and any other
offering or marketing materials relating to the Senior Secured Facilities, Bank
of America will appear “on the left”, and CS Securities will appear “on the
right” and be immediately to the right of Bank of America and (b) in connection
with any Confidential Information Memorandum or other offering or marketing
materials relating to the Bridge Facilities, GSCP will appear “on the left”.  You may appoint additional agents, co-agents
and up to two joint lead arrangers and joint bookrunners or confer other titles
in respect of any Facility in a manner and with economics (not to exceed 20% in
the aggregate with respect to any such Facility) determined by you in consultation
with the Lead Arrangers (it being understood that, to the extent you appoint
additional agents, co-agents, lead arrangers or bookrunners or confer other
titles in respect of any Facility, the commitments of the Commitment Parties in
respect of the relevant Facilities will be reduced ratably by the amount of the
commitments of such appointed entities upon the execution by such financial
institution of customary joinder documentation and, thereafter, each such
financial institution shall constitute an “Agent” hereunder).  No compensation (other than that expressly
contemplated by this Commitment Letter and the Fee Letter referred to below and
other than in connection with any additional appointments referred to above) will
be paid to any Lender in connection with the Facilities unless you and the
Agents shall so agree.


The Lead Arrangers reserve the right, prior
to or after the execution of definitive documentation for the Facilities, to
syndicate all or a portion of the Commitment Parties’ commitments hereunder to
a group of financial institutions (together with the Commitment Parties, the “Lenders”) identified by the Agents
in consultation with you and reasonably acceptable to them and you (your
consent not to be unreasonably withheld or delayed), and you agree to use
commercially reasonable efforts to provide the Lead Arrangers with a period of
at least 20 consecutive calendar days following the launch of the general
syndication of the Senior Secured Facilities and immediately prior to the
Closing Date to syndicate the Senior Secured Facilities; provided
that, notwithstanding each Lead Arranger’s right to syndicate the Facilities
and receive commitments with respect thereto, it is understood that any
syndication of, or receipt of commitments in respect of, all or any portion of
an Commitment Party’s commitments hereunder prior to the initial funding under
the Senior Secured Facilities shall not be a condition to such Commitment Party’s
commitments nor reduce such Commitment Party’s commitments hereunder with respect
to any of the Facilities (provided, however, that, notwithstanding the foregoing, assignments of
an Commitment Party’s commitments, which are effective simultaneously with the
funding of such commitments by the assignee, shall be permitted) (the date of
such initial funding under the Senior Secured Facilities, the “Closing Date”) and, unless you and
we otherwise 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 and amendments, until the
Closing Date has occurred; provided that participations in respect of the
Bridge Facilities shall be permitted with customary voting rights for
participants so long as the participations thereof provide that, with respect
to any actions


 


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where the participant has voting rights, the Agents retain the right,
prior to the Closing Date, to terminate
or buy the participation
of any participant not consenting to the requested change.  Without limiting your obligations to assist
with syndication efforts as set forth below, it is understood that the
Commitment Parties’ commitments hereunder are not subject to syndication of the
Facilities.  The Lead Arrangers intend to
commence syndication efforts promptly upon the execution of this Commitment
Letter and as part of their syndication efforts, it is their intent to have
Lenders commit to the Facilities prior to the Closing Date (subject to the
limitations set forth in the provisos to the preceding sentence).  You agree actively to assist the Lead
Arrangers in completing a timely syndication that is reasonably satisfactory to
them and you.  Such assistance shall
include, without limitation, (a) your using commercially reasonable efforts to
ensure that any syndication efforts benefit materially from your existing
lending and investment banking relationships and the existing lending and
investment banking relationships of the Sponsor and, to the extent practical
and appropriate, the Company, (b) direct contact between senior management,
representatives and advisors of you and the Sponsor, on the one hand, and the
proposed Lenders, on the other hand (and your using commercially reasonable efforts
to ensure contact between senior management, representatives and advisors of
the Company, on the one hand, and the proposed Lenders, on the other hand), in
all such cases at times mutually agreed upon, (c) your and the Sponsor’s
assistance, and your using commercially reasonable efforts to cause the Company
to assist, in the preparation of a customary Confidential Information
Memorandum for the Facilities and other marketing materials to be used in
connection with the syndications, (d) prior to the launch of the syndications,
using your commercially reasonable efforts to procure a corporate credit rating
and a corporate family rating in respect of each Borrower from Standard &
Poor’s Ratings Services (“S&P”)
and Moody’s Investors Service, Inc. (“Moody’s”),
respectively, and ratings for each of the Facilities and the Notes from each
of  S&P and Moody’s and (e) the
hosting, with the Lead Arrangers, of one or more meetings of prospective
Lenders at times mutually agreed upon. 
Notwithstanding anything to the contrary contained in this Commitment
Letter or the Fee Letter (as defined below), neither the commencement nor
completion of the syndication of the Facilities, nor the obtaining of the
ratings referenced above shall constitute a condition to the availability of
the Facilities on the Closing Date or at any time thereafter.


The Lead Arrangers will, in consultation with
you, manage all aspects of any syndication of the Facilities, including
decisions as to the selection of institutions to be approached and when they
will be approached, when their commitments will be accepted, which institutions
will participate (which institutions shall be reasonably acceptable to you),
the allocation of the commitments among the Lenders (subject to your rights of
appointment as specified above) and the amount and distribution of fees among
the Lenders.  To assist the Lead
Arrangers in their syndication efforts, you agree promptly to prepare and
provide (and to use commercially reasonable efforts to cause the Sponsor and
the Company to provide) to the Agents all 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 (including financial estimates, forecasts
and other forward-looking information, the “Projections”),
as the Agents may reasonably request in connection with the structuring,
arrangement and syndication of the Facilities. 
You hereby represent and warrant that (a) to the best of your knowledge,
all written information and written data other than the Projections and
information of a general economic or general industry nature (the “Information”) that has been or will
be made available to the Agents by or on behalf of you, the


 


4

















 


Company, the Sponsor or any of your or their representatives, taken as
a whole, is or will be, when furnished, complete and correct in all material
respects and does not or will not, when furnished, contain any untrue statement
of a material fact or omit to state a material fact necessary in order to make
the statements contained therein not materially misleading in light of the
circumstances under which such statements are made (after giving effect to all
supplements thereto) and (b) the Projections that have been or will be made
available to the Agents by or on behalf of you or any of your 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 at the time the related
Projections are made available to the Agents; it being understood that the
Projections are as to future events and are not to be viewed as facts and that
actual results during the period or periods covered by any such Projections may
differ significantly from the projected results and such differences may be
material.  You agree that if, at any time
prior to the Closing Date, you become aware that any of the representations in
the preceding sentence would be, to the best of your knowledge, 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 use
commercially reasonable efforts to promptly supplement the Information and the
Projections so that, to the best of your knowledge, such representations will
be correct in all material respects under those circumstances.  In arranging and syndicating the Facilities,
the Agents will be entitled to use and rely primarily on the Information and
the Projections without responsibility for independent verification thereof.


You hereby acknowledge that
(a) the Agents will make available Information and Projections to the proposed
syndicate of Lenders by posting such Information and Projections on IntraLinks,
SyndTrak Online or similar electronic means and (b) certain of the Lenders may
be “public side” Lenders (i.e. Lenders that do not wish to receive material
non-public information (within the meaning of the United States Federal
Securities Laws) with respect to the Company, its subsidiaries or its
securities) (each, a “Public
Lender”).  If reasonably
requested by the Agents you will use
commercially reasonable efforts to assist us in preparing an additional version
of the Confidential Information Memorandum to be used by Public Lenders.  It is understood that in connection with your
assistance described above, authorization letters will be included in any Confidential
Information Memorandum that authorize the distribution of the Confidential
Information Memorandum to prospective Lenders, containing a representation to
the Lead Arrangers that that the public-side version does not include material
non-public information about the Company, its subsidiaries or its securities
and exculpating you, the Sponsor, the Company and us with respect to any
liability related to the use of the contents of the Confidential Information
Memorandum or any related marketing material by the recipients thereof.  You agree that so long as you, the Company or
any of your or their respective subsidiaries are the issuer of any outstanding
debt or equity securities that are registered or issued pursuant to a private
offering or are actively contemplating issuing any such securities to use
commercially reasonable efforts to identify that portion of the Information
that may be distributed to the Public Lenders as “PUBLIC”.  You acknowledge and agree that the following
documents may be distributed to Public Lenders (unless you notify us otherwise
in writing (including by email) within a reasonable time prior to their
intended distribution): (a) drafts and final definitive documentation with
respect to the Facilities; (b) administrative materials prepared by the Agents for prospective Lenders (such as a lender
meeting invitation, allocations and funding and closing memoranda); and (c)
notification of changes in the terms of the Facilities.


 


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As
consideration for the commitments of the Commitment Parties hereunder and their
agreement to perform the services described herein, you agree to pay (or cause
to be paid) the fees set forth in the Term Sheets and in the Amended and
Restated Fee Letter dated the date hereof and delivered herewith with respect
to the Facilities (the “Fee Letter”).  Once paid, such fees shall not be refundable
under any circumstances, except as otherwise contemplated by the Fee Letter.


The commitments of the Commitment Parties
hereunder and their agreement to perform the services described herein are
subject to the conditions set forth on Exhibit E hereto.  In addition, the commitments of the
Commitment Parties hereunder are subject to the execution and delivery of
definitive documentation, closing certificates (including a solvency
certificate from an authorized financial officer of the Borrower after giving
effect to the Acquisition attesting to the solvency of such Borrower and its
subsidiaries, taken as a whole, evidences of authority, charter documents, and
officers’ incumbency certificates) and opinions with respect to the Facilities
(the “Facilities Documentation”),
in each case consistent with the Term Sheets and otherwise mutually agreed to
be customary and appropriate for transactions of this type for affiliates of
the Sponsor; provided that, notwithstanding
anything in this Commitment Letter, the Fee Letter, the Facilities
Documentation or any other letter agreement or other undertaking concerning the
financing of the Transactions to the contrary, (i) the only representations
relating to you, the Borrower, the Company, their respective subsidiaries and
their respective businesses the making of which shall be a condition to the
availability of the Facilities on the Closing Date shall be (a) such of the
representations made by the Company in the Purchase Agreement as are material
to the interests of the Lenders (it being understood that the representation
and warranty set forth in Section 3.01 (c) of the Purchase Agreement
(including, for the avoidance of doubt, the defined terms referenced therein)
is deemed to be material to the interests of the Lenders), but only to the
extent that you have the right to terminate your obligations under the Purchase
Agreement as a result of a breach of such representations in the Purchase
Agreement and (b) the Specified Representations (as defined below) and (ii) the
terms of the Facilities Documentation shall be in a form such that they do not
impair availability of the Facilities on the Closing Date if the conditions set
forth herein and in the Term Sheets are satisfied (it being understood that, to
the extent any Collateral (as defined in Exhibit B hereto) (other than the U.S.
pledge and perfection of security interests in the pledged stock of
U.S.-organized entities (to the extent required under the Senior Secured
Facilities Term Sheet) and other assets pursuant to which a lien may be
perfected by the filing of a financing statement under the Uniform Commercial
Code) is not provided on the Closing Date after your use of commercially
reasonable efforts to do so, the delivery 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 delivered after the Closing Date
pursuant to arrangements to be mutually agreed).  Those matters that are not covered by or made
clear under the provisions of this Commitment Letter are subject to the
approval and agreement of the Agents and you; provided
that such approvals and agreements shall be in a manner that is consistent with
the Term Sheets and customary and appropriate for transactions of this type
with affiliates of the Sponsor.  For
purposes hereof, “Specified Representations”
means the representations and warranties set forth in the Term Sheets relating
to corporate existence, power and authority, the execution, delivery and
enforceability of the Facilities Documentation, Federal Reserve margin
regulations and the Investment Company Act.


 


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You agree (a) to indemnify and hold harmless
each of the Commitment Parties, the Lead Arrangers and their respective
affiliates and controlling persons (in their capacity as Commitment Parties,
affiliates or controlling persons of Commitment Parties, and not as Investors) and
the respective officers, directors, employees, agents, members and successors
and assigns of each of the foregoing 
(each, other than such excluded parties, an “Indemnified
Person”) from and against any and all losses, 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 (including the Term Sheets), the Fee Letter, the Transactions, the
Facilities or any related transaction or any claim, litigation, investigation
or proceeding, actual or threatened, relating to any of the foregoing (any of
the foregoing, a “Proceeding”), regardless of
whether any such Indemnified Person is a party thereto, and to reimburse each
such Indemnified Person upon demand for any reasonable and documented
out-of-pocket legal expenses of one firm of counsel for all Indemnified Persons
and, if necessary, one firm of regulatory counsel and/or one firm of local
counsel in each appropriate jurisdiction, in each case for all Indemnified
Parties (and, in the case of an actual or perceived conflict of interest where
the Indemnified Person affected by such conflict informs you of such conflict
and thereafter, after receipt of your consent (which consent shall not be unreasonably
withheld or delayed), retains its own counsel, of another firm of counsel for
such affected Indemnified Person) or other reasonable and documented
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 they
have resulted 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, agents or members (but excluding any
Investor that is an affiliate of such Indemnified Person in its capacity as
such and such related parties to such Investor in such capacity) of any of the
foregoing (as determined by a court of competent jurisdiction in a final and
non-appealable decision), (ii) arising from a material breach of the
obligations of such Indemnified Person under this Commitment Letter or the
Facilities Documentation or (iii) arising out of, or in connection with, any
Proceeding that does not involve an act or omission by you or the Borrower or
any of your or their affiliates and to the extent brought by an Indemnified
Person against any other Indemnified Person, and (b) to reimburse the
Commitment Parties and each Indemnified Person from time to time, upon
presentation of a summary statement, for all reasonable out-of-pocket expenses
(including but not limited to expenses of the Agents’ due diligence
investigation, syndication expenses, travel expenses and reasonable fees,
disbursements and other charges of counsel to the Agents identified in the Term
Sheets and of a single local counsel to the Agents in each relevant
jurisdiction (subject to actual conflicts), except allocated costs of in-house
counsel), in each case incurred in connection with the Facilities and the
preparation of this Commitment Letter, the Original Letter (including the fee
letter referred to therein), the Fee Letter, the Facilities Documentation and
any security arrangements in connection therewith (collectively, the “Expenses”); provided that,
except as set forth in the Fee Letter, 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
(including IntraLinks or SyndTrak Online),
except to the extent such damages have resulted from the willful misconduct or
gross negligence of such Indemnified


 


7

















 


Person or any of its affiliates or controlling persons or any of the
officers, directors, employees, agents or members (but excluding any Investor
that is an affiliate of such Indemnified Person in its capacity as such and
such related parties to such Investor in such capacity) of any of the foregoing
(as determined by a court of competent jurisdiction in a final and
non-appealable decision) or (ii) neither you nor any Indemnified Person shall
be liable for any indirect, special, punitive or consequential damages in
connection with your or its activities related to the Facilities.


You
acknowledge that the Agents and their affiliates may be providing debt
financing, equity capital or other services (including financial advisory
services) to other persons in respect of which you may have conflicting
interests regarding the transactions described herein and otherwise.  Neither the Agents nor any of their
affiliates will use confidential information obtained from you by virtue of the
transactions contemplated by this Commitment Letter or their other
relationships with you in connection with the performance by them of services
for other persons, and neither the Agents nor any of their affiliates will
furnish any such information to other persons. 
You also acknowledge that neither the Agents nor any of their affiliates
have any obligation to use in connection with the transactions contemplated by
this Commitment Letter, or to furnish to you, confidential information obtained
by them from other persons.


As
you know, each Agent is a full service securities firm engaged, either directly
or through its affiliates, in various activities, including securities trading,
commodities trading, investment management, financing and brokerage activities
and financial planning and benefits counseling for both companies and
individuals.  In the ordinary course of
these activities, the Agents and their respective affiliates may actively
engage in commodities trading or trade the debt and equity securities (or
related derivative securities) and financial instruments (including bank loans
and other obligations) of the Company and other companies which may be the
subject of the arrangements contemplated by this letter for their own account
and for the accounts of their customers and may at any time hold long and short
positions in such securities.  Each Agent
or its affiliates may also co-invest with, make direct investments in, and
invest or co-invest client monies in or with funds or other investment vehicles
managed by other parties, and such funds or other investment vehicles may trade
or make investments in securities of you, the Company or other companies which
may be the subject of the arrangements contemplated by this Commitment Letter
or engage in commodities trading with any thereof.


The Agents and their respective affiliates
may have economic interests that conflict with those of the Company and
you.  You agree that the Agents will act
under this letter as independent contractors and that nothing in this
Commitment Letter or the Fee Letter or otherwise will be deemed to create an
advisory, fiduciary or agency relationship or fiduciary or other implied duty
between the Agents and you and the Company, your and their respective
stockholders or your and their respective affiliates.  You acknowledge and agree that (i) the
transactions contemplated by this Commitment Letter and the Fee Letter are arm’s-length
commercial transactions between the Agents, on the one hand, and you and the
Company, on the other, (ii) in connection therewith and with the process
leading to such transaction each Agent is acting solely as a principal and not
as agents or fiduciaries of you, the Company, your and their management,
stockholders, creditors or any other person, (iii) the Agents have not assumed
an advisory or fiduciary responsibility or any other obligation in favor of you
with respect to the transactions contemplated hereby or the process leading
thereto (irrespective of whether the


 


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Agents or any of their respective affiliates have advised or are
currently advising you or the Company on other matters) except the obligations
expressly set forth in this Commitment Letter and the Fee Letter and (iv) you
have consulted your own legal and financial advisors to the extent you deemed
appropriate.  You further acknowledge and
agree that you are responsible for making your own independent judgment with
respect to such transactions and the process leading thereto.  You agree that you will not claim that the
Agents, in their capacities as such, have rendered advisory services of any
nature or respect, or owe a fiduciary or similar duty to you, in connection
with such transaction or the process leading thereto.


This
Commitment Letter and the commitments hereunder shall not be assignable by you
(other than to the Borrower (including any foreign borrower described in the
third paragraph of this Commitment Letter), or to other entities established in
connection with the Transactions and controlled by the Sponsor, with all obligations
and liabilities of Newco hereunder being assumed by the Borrower or such other
entities upon the effectiveness of such assignment) without the prior written
consent of the Agents, not to be unreasonably withheld (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.  Any and all obligations of, and services to
be provided by, the Agents hereunder (including, without limitation, its
commitments) may be performed and any and all rights of the Agents hereunder
may be exercised by or through any of their affiliates or branches; provided that with respect to the commitments, any
assignments thereof to an affiliate will not relieve the Commitment Party from
any of their obligations hereunder unless and until such affiliate shall have
funded the portion of the commitment so assigned.  This Commitment Letter may not be amended or
any provision hereof waived or modified except by an instrument in writing
signed by each of the Agents 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 other electronic transmission (i.e. a “pdf’ or “tif”) shall be
effective as delivery of a manually executed counterpart hereof.  This commitment letter (including the
exhibits hereto) and, together with the Fee Letter dated the date hereof, (i)
are the only agreements that have been entered into among the parties hereto
with respect to the Facilities and (ii) 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 SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK.


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 OR THE PERFORMANCE OF
SERVICES HEREUNDER.


Each of the parties hereto hereby irrevocably
and unconditionally (a) submits, for itself and its property, to the
non-exclusive jurisdiction of any New York State court or Federal court of the
United States of America sitting in New York City, and any appellate court from
any


 


9

















 


thereof, in any action or proceeding arising out of or relating to this
Commitment Letter or the transactions contemplated hereby, or for recognition
or enforcement of any judgment, and agrees that all claims in respect of any
such action or proceeding may be heard and determined in such New York State
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 or the transactions
contemplated hereby in any New York State or in any such Federal court and (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.


This
Commitment Letter is delivered to you on the understanding that none of the Fee
Letter and its terms or substance, or, prior to your acceptance hereof, this
Commitment Letter and its terms or substance, or the activities of the Agents
pursuant hereto or to the Fee Letter 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
the Sponsor and to your and their officers, directors, employees, attorneys,
accountants and advisors on a confidential and need-to-know basis, (b) if the
Agents consent to such proposed disclosure or (c) pursuant to the order of any
court or administrative agency in any pending legal or administrative
proceeding, or otherwise as required by applicable law or compulsory legal
process or, to the extent requested or required by governmental and/or
regulatory authorities, in each case based on the reasonable advice of your
legal counsel (in which case, to the extent permitted by law, you agree to
inform us promptly thereof); provided that
(i) you may disclose this Commitment Letter and the contents hereof to the
Company and its officers, directors, equity holders, employees, attorneys,
accountants and advisors, on a confidential and need-to-know basis, (ii) you
may disclose the Commitment Letter and its contents in any proxy or other
public filing relating to the Acquisition and in any prospectus or other
offering memorandum relating to the Notes, (iii) you may disclose this
Commitment Letter, and the contents hereof, to potential Lenders and to rating
agencies in connection with obtaining ratings for the Borrower and the Facilities,
(iv) you may disclose the fees contained in the Fee Letter as part of a generic
disclosure of aggregate sources and uses related to fee amounts to the extent
customary or required in marketing materials, any proxy or other public filing
or any prospectus or other offering memorandum, (v) to the extent portions
thereof have been redacted in a manner to be agreed, you may disclose the Fee
Letter and the contents thereof to the Company and its officers, directors,
equity holders, employees, attorneys, accountants and advisors, on a
confidential and need-to-know basis and (vi) you may disclose this Commitment
Letter and the Fee Letter and their respective contents to prospective
additional joint lead arrangers and Investors, in each case as contemplated hereby,
subject to such prospective additional joint lead arranger or Investor agreeing
to be bound by the confidentiality provisions hereof.  You agree that you will permit us to review
and approve (such approval not to be unreasonably withheld or delayed) any
reference to us or any of our affiliates in connection with the Facilities or
the transactions contemplated hereby contained in any press release or similar
written public disclosure prior to public release.


The Commitment Parties and their affiliates
will use all confidential information provided to them 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 the Commitment Parties from disclosing any such
information (a) pursuant to the order of any court or


 


10

















 


administrative agency or in any pending legal or administrative
proceeding, or otherwise as required by applicable law or compulsory legal
process (in which case the Commitment Parties, to the extent permitted by
applicable law and to the extent practicable, agree to inform you promptly
thereof), (b) upon the request or demand of any regulatory authority having
jurisdiction over the Commitment Parties or any of their affiliates (in which
case the Commitment Parties, to the extent permitted by law, agree to inform
you promptly thereof), (c) to the extent that such information becomes publicly
available other than by reason of improper disclosure by the Commitment Parties
or any of their affiliates or any related parties thereto in violation of any
confidentiality obligations owing to you, the Company or any of its subsidiaries
(including those set forth in this paragraph), (d) to the extent that such
information is received by the Commitment Parties from a third party that is
not to the Commitment Parties’ knowledge subject to confidentiality obligations
owing to you, the Company or any of its subsidiaries, (e) to the extent that
such information is independently developed by the Commitment Parties, (f) to
the Commitment Parties’ affiliates and the Commitment Parties’ and such
affiliates’ officers, directors, partners, employees, legal counsel,
independent auditors and other experts or agents who need to know such
information in connection with the Transactions and are informed of the
confidential nature of such information, (g) to potential or prospective
Lenders, participants or assignees and any direct or indirect contractual
counterparties to any swap or derivative transaction relating to any Borrower
and its obligations under any Facility, in each case who agree (which agreement
may be oral or pursuant to customary syndication practice) to be bound by the
terms of this paragraph (or language substantially similar to this paragraph)
or (h) for purposes of establishing a “due diligence defense”.  The Commitment Parties’ obligations under
this paragraph shall automatically terminate and be superseded by the
confidentiality provisions in the definitive documentation relating to the
Facilities upon the initial funding thereunder.


The
reimbursement, compensation (if applicable in accordance with the terms hereof
and the Fee Letter), indemnification, confidentiality, jurisdiction, venue,
governing law and waiver of jury trial provisions contained herein and in the
Fee Letter shall remain in full force and effect regardless of whether
Facilities Documentation shall be executed and delivered and notwithstanding
the termination of this Commitment Letter or the Commitment Parties’
commitments hereunder; provided that
your obligations under this Commitment Letter, other than those relating to
confidentiality and to the syndication of the Facilities, shall automatically
terminate and be superseded by the Facilities Documentation upon the initial
funding thereunder (or, in the case any Notes are issued on the Closing Date,
upon the initial funding of the Senior Secured Facilities only) and the payment
of all amounts owing at such time hereunder and under the Fee Letter, and you
shall be released from all liability in connection therewith at such time.


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 of the Commitment Parties and each other Lender is required to obtain,
verify and record information that identifies each Borrower and each Guarantor,
which information includes the name, address, tax identification number and
other information regarding each Borrower and each Guarantor that will allow
any of the Commitment Parties or such Lender to identify such Borrower 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.


 


11

















 


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 Administrative Agent executed counterparts hereof and of the Fee Letter not
later than 5:00 p.m., New York City time, on June 22, 2007.  The Commitment Parties’ respective
commitments hereunder and agreements contained herein will expire at such time
in the event that the Administrative Agent has not received such executed
counterparts in accordance with the immediately preceding sentence.  In the event that the initial borrowing in
respect of the Senior Secured Facilities does not occur on or before March 11,
2008, then this Commitment Letter and the commitments and undertakings of each
of the Commitment Parties hereunder shall automatically terminate unless each
of them shall, in their discretion, agree to an extension.


BY
SIGNING THIS COMMITMENT LETTER, EACH OF THE PARTIES HERETO HEREBY ACKNOWLEDGES
AND AGREES THAT (A) BANK OF AMERICA IS OFFERING TO COMMIT TO ITS PORTION OF THE
SENIOR SECURED FACILITIES SEPARATE AND APART FROM BANC OF AMERICA BRIDGE’S
OFFER TO COMMIT TO ITS PORTION OF THE BRIDGE FACILITIES AND (B) BANC OF AMERICA
BRIDGE IS OFFERING TO COMMIT TO ITS PORTION OF THE BRIDGE FACILITIES SEPARATE
AND APART FROM BANK OF AMERICA’S OFFER TO COMMIT TO ITS PORTION OF THE SENIOR
SECURED FACILITIES.  YOU MAY, AT YOUR
OPTION, ELECT TO ACCEPT THIS COMMITMENT LETTER (AND THE APPLICABLE PROVISIONS
OF THE FEE LETTER) WITH RESPECT TO EITHER THE SENIOR SECURED FACILITIES OR THE
BRIDGE FACILITIES OR BOTH.


[Remainder of this page intentionally left blank]


 


12

















 


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


 

















 


BANK
OF AMERICA, N.A.


By:
/s/ John McCusker


       Name: John McCusker


       Title: Managing Director


 


 


BANC
OF AMERICA SECURITIES LLC


By:
/s/ John McCusker


       Name: John McCusker


       Title: Managing Director


 


 


BANC
OF AMERICA BRIDGE LLC


By:
/s/ John McCusker


       Name: John McCusker


       Title: John McCusker


 


 


CREDIT SUISSE, CAYMAN ISLAND
BRANCH


 


 


By: /s/ Bill O’Daly


       Name: Bill O’Daly


       Title: Director


 


By: /s/ Mikhail
Faybusovich


       Name: Mikhail Faybusovich


       Title: Associate


 


 


CREDIT SUISSE SECURITIES (USA)
LLC


 


 


By: /s/ SoVonna Day-Goins


       Name: SoVonna Day-Goins


       Title: Managing Director


 


 


 


GOLDMAN SACHS CREDIT
PARTNERS L.P.


 


 


By: /s/ Walter Jackson


       Name: Walt Jackson


       Title: Managing Director


 


 

















 


BAYERISCHE HYPO- UND VEREINSBANK AG


NEW YORK BRANCH


 


 


By: /s/ Gavin Burke


       Name: Gavin Burke


       Title: Managing Director


 


 


By: /s/ Hetal Selarka


       Name: Hetal Selarka


       Title: Vice President


 


 


 [SIGNATURE PAGE TO COMMITMENT LETTER]


 


 


LEHMAN COMMERCIAL PAPER INC.


 


 


By: /s/ Jeff Ogden


       Name: Jeff Ogden


       Title: Managing Director


 


 


LEHMAN BROTHERS COMMERCIAL
BANK


 


 


By: /s/ Brian McNany


       Name: Brian McNany


       Title: Authorized Signatory


 


 


LEHMAN BROTHERS INC.


 


 


By: /s/ Jeff Ogden


       Name: Jeff Ogden


       Title: Managing Director


 


 


 


Accepted
and agreed to as of

the date first above written:


 


KHI MERGER SUB INC.


 


 


 


By:
/s/ Brian F. Carroll
         Name: Brian F. Carroll
         Title: President