BANC OF AMERICA SECURITIES LLC
BANK OF AMERICA, N.A.
100 FEDERAL STREET
BOSTON, MA 02110
August 8, 2005
Technitrol, Inc.
1210 Northbrook Drive
Suite 470
Trevose, PA 19053
Attention: Drew A. Moyer
Senior Vice President
and Chief Financial Officer
$200,000,000 Senior Credit Facility
Ladies and Gentlemen:
Bank of America, N.A. (" Bank of
America ") is pleased to offer to be the sole and exclusive
administrative agent (in such capacity, the " Administrative
Agent ") for a $200,000,000 Senior Credit Facility (the "
Senior Credit Facility ") to Technitrol, Inc. (the "
Borrower "), and Bank of America is pleased to offer
its commitment to lend up to $40,000,000 of the Senior Credit
Facility, upon and subject to the terms and conditions of this
letter and the Summary of Terms and Conditions attached hereto (the
" Summary of Terms "). Banc of America Securities LLC
(" BAS ") is pleased to advise you of its willingness
in connection with the foregoing commitment, as sole and exclusive
lead arranger and sole and exclusive book manager (in such
capacities, the " Lead Arranger ") for the Senior
Credit Facility, to use its best efforts to form a syndicate of
financial institutions (the " Lenders ") reasonably
acceptable to you for the Senior Credit Facility.
Bank of America will act as sole and
exclusive Administrative Agent for the Senior Credit Facility and
BAS will act as sole and exclusive Lead Arranger for the Senior
Credit Facility. No additional agents, co-agents or arrangers will
be appointed and no other titles will be awarded without our prior
written approval.
The commitment of Bank of America
hereunder and the undertaking of BAS to provide the services
described herein are subject to the satisfaction of each of the
following conditions precedent in a manner acceptable to Bank of
America and BAS: (a) the completion of a due diligence review of
the assets, liabilities (including contingent liabilities) and
business of the Borrower and its subsidiaries in scope and with
results satisfactory to us in our sole and absolute discretion; (b)
the accuracy and completeness of all representations that you and
your affiliates make to Bank of America and BAS and your compliance
with the terms of this Commitment Letter (including the Summary of
Terms) and the Fee Letter (as hereinafter defined); (c) prior to
and during the syndication of the Senior Credit Facility there
shall be no competing offering, placement or arrangement of any
debt securities or bank financing by or on behalf of the Borrower
or any of its subsidiaries; (d) the negotiation, execution and
delivery of definitive documentation for the Senior Credit Facility
consistent with the Summary of Terms and otherwise satisfactory to
Bank of America and BAS; (e) no material adverse change in or
material disruption of conditions in the market for syndicated bank
credit facilities or the financial, banking or capital markets
generally shall have occurred that, in the reasonable judgment of
Bank of America and BAS, would impair the syndication of the Senior
Credit Facility; (f) except as disclosed with reasonable
specificity prior to the date hereof in the Borrower's filings with
the U.S. Securities and Exchange Commission, no change, occurrence
or development that shall have occurred or become known to Bank of
America or BAS since December 31, 2004 could reasonably be expected
to have a material adverse effect on the business, assets,
liabilities (actual or contingent), operations, condition
(financial or otherwise) or prospects of the Borrower and its
subsidiaries, taken as a whole; and (g) commitments shall have been
received from Lenders for the remaining $160,000,000 of the Senior
Credit Facility on the terms and conditions referred to herein and
in the Summary of Terms.
BAS intends to commence syndication
efforts promptly upon your acceptance of this Commitment Letter and
the Fee Letter. You agree to actively assist BAS in achieving a
syndication of the Senior Credit Facility that is satisfactory to
it. Such assistance shall include (a) your providing and causing
your advisors to provide Bank of America and BAS and the other
Lenders upon request with all information reasonably deemed
necessary by Bank of America and BAS to complete syndication; (b)
your assistance in the preparation of an Information Memorandum to
be used in connection with the syndication of the Senior Credit
Facility; (c) your using commercially reasonable efforts to ensure
that the syndication efforts of BAS benefit materially from your
existing banking relationships; and (d) otherwise assisting Bank of
America and BAS in their syndication efforts, including by making
your senior management and advisors available from time to time to
attend and make presentations regarding the business and prospects
of the Borrower and its subsidiaries, as appropriate, at one or
more meetings of prospective Lenders.
It is understood and agreed that BAS will
manage and control all aspects of the syndication, including
decisions as to the selection of prospective Lenders and, in
consultation with you, any titles offered to proposed Lenders, when
commitments will be accepted and the final allocations of the
commitments among the Lenders. It is understood that no Lender
participating in the Senior Credit Facility will receive
compensation from you in order to obtain its commitment, except on
the terms contained herein and in the Summary of Terms.
You acknowledge and agree, both for
yourself and on behalf of each of the Designated Borrowers and the
Guarantors (each as defined in the Summary of Terms), that in
connection with all aspects of each transaction contemplated by
this Commitment Letter, you, the Designated Borrowers and the
Guarantors, on one hand, and Bank of America and BAS and any
affiliate through which either may be acting (each, a "
Transaction Affiliate "), on the other hand, have an
arms-length business relationship that creates no fiduciary duty on
the part of Bank of America, BAS or any Transaction Affiliate, and
you expressly disclaim (both for yourself and on behalf of the
Designated Borrowers and the Guarantors) any fiduciary
relationship.
You hereby represent, warrant and
covenant that (a) all information, other than Projections (defined
below), which has been or is hereafter made available to Bank of
America, BAS or the Lenders by you or any of your representatives
(or on your or their behalf) in connection with the transactions
contemplated hereby (the " Information ") is and will
be complete and correct in all material respects , and (b) all financial projections concerning the
Borrower and its subsidiaries that have been or are hereafter made
available to Bank of America, BAS or the Lenders by you or any of
your representatives (the " Projections ") have been
or will be prepared in good faith based upon assumptions which you
believe to be reasonable under the circumstances. You agree to
furnish us with such Information and Projections as we may
reasonably request and to supplement the Information and the
Projections from time to time until the closing date for the Senior
Credit Facility (the " Closing Date ") so that the
representation, warranty and covenant in the preceding sentence is
correct on the Closing Date. In issuing this commitment and in
arranging and syndicating the Senior Credit Facility, Bank of
America and BAS are and will be using and relying on the
Information and the Projections (collectively, the "
Pre-Commitment Information ") without independent
verification thereof.
You hereby acknowledge and agree that (a)
BAS and/or Bank of America will make available Information and
Projections (collectively, " Borrower Materials ") to
the proposed syndicate of Lenders by posting the Borrower Materials
on IntraLinks or another similar electronic system (the "
Platform " ) and (b) none of the proposed
Lenders will be "public-side" Lenders (i.e., Lenders that do not
wish to receive material non-public information with respect to the
Borrower or its securities) (each, a " Public Lender
"). You hereby agree that (w) no Borrower Materials are to be made
available to Public Lenders, (x) all Borrower Materials shall be
treated as private and may contain material non-public information
with respect to the Borrower or its securities for purposes of
United States federal and state securities laws; and (y) BAS and
Bank of America shall treat all Borrower Materials as being
suitable only for posting on a portion of the Platform not
designated "Public Investor".
By executing this Commitment Letter, you
agree to reimburse Bank of America and BAS from time to time on
demand for all reasonable out-of-pocket fees and expenses
(including, but not limited to, (a) the reasonable fees,
disbursements and other charges of Edwards & Angell, LLP, as
counsel to the Lead Arranger and the Administrative Agent, up to a
maximum amount of $45,000 (plus reasonable disbursements and other
out-of-pocket costs), subject to the assumptions previously
disclosed in an e-mail from Henry Bullitt to Drew Moyer at
approximately 2:09 p.m. on July 22, 2005, (b) due diligence
expenses and (c) all CUSIP fees for registration with the Standard
& Poor's CUSIP Service Bureau) incurred in connection with the
Senior Credit Facility, the syndication thereof, the preparation of
the definitive documentation therefor and the other transactions
contemplated hereby. Notwithstanding the foregoing, you will not be
obligated to reimburse Bank of America or BAS ( x) for fees referred to in clause (a) above in
excess of the amounts set forth in such clause, or ( y) expenses referred to in
clause (b) above plus expenses incurred in connection with
the syndication of the Senior Credit Facility that exceed in the
aggregate (in the case of the clause ( y))
$35,000 unless, in each case, Bank of America or BAS receives your
prior written authorization (which shall not be unreasonably
withheld).
You agree to indemnify and hold harmless
Bank of America, BAS, each Lender and each of their affiliates and
their respective officers, directors, employees, agents, advisors
and other representatives (each, an " Indemnified
Party ") from and against (and will reimburse each
Indemnified Party as the same are incurred for) any and all claims,
damages, losses, liabilities and expenses (including, without
limitation, the reasonable fees, disbursements and other charges of
counsel) that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection
with or by reason of (including, without limitation, in connection
with any investigation, litigation or proceeding or preparation of
a defense in connection therewith) (a) any matters contemplated by
this Commitment Letter or any related transaction or (b) the Senior
Credit Facility and any other financings or any use made or
proposed to be made with the proceeds thereof, except to the extent
such claim, damage, loss, liability or expense is found in a final,
nonappealable judgment by a court of competent jurisdiction to have
resulted from such Indemnified Party's gross negligence or willful
misconduct. In the case of an investigation, litigation or
proceeding to which the indemnity in this paragraph applies, such
indemnity shall be effective whether or not such investigation,
litigation or proceeding is brought by you, your equity holders or
creditors or an Indemnified Party, whether or not an Indemnified
Party is otherwise a party thereto and whether or not the
transactions contemplated hereby are consummated. You also agree
that no Indemnified Party shall have any liability (whether direct
or indirect, in contract or tort or otherwise) to you or your
subsidiaries or affiliates or to your or their respective equity
holders or creditors arising out of, related to or in connection
with any aspect of the transactions contemplated hereby, except to
the extent of direct, as opposed to special, indirect,
consequential or punitive, damages determined in a final,
nonappealable judgment by a court of competent jurisdiction to have
resulted from such Indemnified Party's gross negligence or willful
misconduct. It is further agreed that Bank of America shall only
have liability to you (as opposed to any other person), and that
Bank of America shall be liable solely in respect of its own
commitment to the Senior Credit Facility on a several, and not
joint, basis with any other Lender, and that such liability shall
only arise to the extent damages have been caused by a breach of
Bank of America's obligations hereunder to negotiate in good faith
definitive documentation for the Senior Credit Facility on the
terms set forth herein, as determined in a final, nonappealable
judgment by a court of competent jurisdiction. Notwithstanding any
other provision of this Commitment Letter, no Indemnified Party
shall be liable for any damages arising from the use by others of
information or other materials obtained through electronic
telecommunications or other information transmission systems,
except to the extent determined in a final, nonappealable judgment
of a court of competent jurisdiction to have resulted from such
Indemnified Party's gross negligence or willful misconduct.
This Commitment Letter and the fee letter
among you, Bank of America and BAS of even date herewith (the "
Fee Letter ") and the contents hereof and thereof are
confidential and, except for disclosure hereof or thereof on a
confidential basis to your senior management-level employees (and
other employees on a need-to-know basis), officers, directors,
accountants, attorneys and other professional advisors retained by
you in connection with the Senior Credit Facility or as otherwise
required by law, may not be disclosed in whole or in part to any
person or entity without our prior written consent; provided
, however , it is understood and agreed that you may
disclose this Commitment Letter (including the Summary of Terms)
but not the Fee Letter after your acceptance of this Commitment
Letter and the Fee Letter, in filings with the Securities and
Exchange Commission and other applicable regulatory authorities and
stock exchanges. Bank of America and BAS 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 "
Act "), each of them is required to obtain, verify
and record information that identifies you, which information
includes your name and address and other information that will
allow Bank of America or BAS, as applicable, to identify you in
accordance with the Act.
You acknowledge that Bank of America and
BAS or their affiliates may be providing financing or other
services to parties whose interests may conflict with yours. Bank
of America and BAS agree that they will not furnish confidential
information obtained from you to any of their other customers and
that they will treat confidential information relating to you and
your affiliates with the same degree of care as they treat their
own confidential information. Bank of America and BAS further
advise you that they will not make available to you confidential
information that they have obtained or may obtain from any other
customer. In connection with the services and transactions
contemplated hereby, you agree that Bank of America and BAS are
permitted to access, use and share with any of their bank or
non-bank affiliates, agents, advisors (legal or otherwise) or
representatives any information concerning you or any of your
affiliates that is or may come into the possession of Bank of
America, BAS or any of such affiliates.
The provisions of the immediately
preceding four paragraphs shall remain in full force and effect
regardless of whether any definitive documentation for the Senior
Credit Facility shall be executed and delivered, and
notwithstanding the termination of this letter or any commitment or
undertaking hereunder.
This Commitment Letter and the Fee Letter
may be executed in counterparts which, taken together, shall
constitute an original. Delivery of an executed counterpart of this
Commitment Letter or the Fee Letter by telecopier or facsimile
shall be effective as delivery of a manually executed counterpart
thereof.
This Commitment Letter and the Fee Letter
shall be governed by, and construed in accordance with, the laws of
the State of New York. Each of you, Bank of America and BAS hereby
irrevocably waives any and all right to trial by jury in any
action, proceeding or counterclaim (whether based on contract, tort
or otherwise) arising out of or relating to this Commitment Letter
(including, without limitation, the Summary of Terms), the Fee
Letter, the transactions contemplated hereby and thereby
