Exhibit
10.1


	
  UBS LOAN FINANCE LLC

  677 Washington Boulevard

  Stamford, Connecticut 06901

  	
  BANK OF AMERICA,
  N.A.

  100 North Tryon Street

  Charlotte, North Carolina 28255

  	
  GOLDMAN SACHS
  CREDIT

  PARTNERS L.P. 85 Broad Street

  New York, New York 10004

  
	
   

  	
   

  	
   

  
	
  UBS SECURITIES
  LLC

  299 Park Avenue

  New York, New York 10171

  	
  BANC OF AMERICA

  SECURITIES LLC

  214 North Tryon Street

  Charlotte, North Carolina 28255

  	
   

  



 


January 5, 2007


Advanced Medical Optics, Inc.


1700 E. St. Andrew Place


Santa
Ana, California 92705


Attention:                                         Richard Meier

Executive Vice President of Operations and Finance
and Chief Financial Officer


Bank Facilities Commitment Letter


Ladies and Gentlemen:


You have advised UBS Loan
Finance LLC (“UBS”), UBS Securities LLC (“UBSS”), Bank of America,
N.A. (“BA”), Banc of America Securities LLC (“BAS”) and Goldman
Sachs Credit Partners L.P. (“GSCP” and, together with UBS, UBSS, BA and
BAS, “we,” “us” or the “Commitment Parties”) that Advanced
Medical Optics, Inc., a Delaware corporation (“you” or “Borrower”),
proposes to acquire (the “Acquisition”) IntraLase Corp. (the “Acquired
Business”).  The Acquisition will be
effected pursuant to an agreement and plan of merger (the “Acquisition
Agreement”) among Borrower, a wholly owned subsidiary of Borrower and the
Acquired Business.  All references to “dollars”
or “$” in this agreement and the attachments hereto (collectively, this “Commitment
Letter”) are references to United States dollars.


We understand that the
sources of funds required to fund the Acquisition consideration, to repay
certain existing indebtedness of Borrower, the Acquired Business and their
respective subsidiaries of approximately $30.0 million (the “Refinancing”),
to pay fees, commissions and expenses  in
connection with the Transactions (as defined below) and to provide ongoing
working capital requirements of Borrower and its subsidiaries following the
Transactions will include senior secured credit facilities consisting of (i) a
senior secured term loan facility to Borrower of $600.0 million (the “Term
Loan Facility”), as described in the Summary of Principal Terms and
Conditions attached hereto as Annex I (the “Term Sheet”) and
(ii) a senior secured revolving credit facility to Borrower of $300.0
million (the “Revolving Credit Facility” and, together with the Term
Loan Facility, the “Committed Bank Facilities”), as described in the
Term Sheet, of which Revolving Credit Facility not more than $250.0 million
will be drawn immediately after giving effect to the Transactions.









 



In addition, we will use
commercially reasonable efforts to arrange and syndicate up to an additional
$100.0 million under the Revolving Credit Facility (the “Commercially
Reasonable Efforts Revolving Credit Facility Amount”; and such additional
amount of the Revolving Credit Facility, together with the Committed Bank
Facilities, the “Bank Facilities” or the “Facilities”); provided, that notwithstanding anything to the contrary
contained herein or any oral representations or assurances previously or
subsequently made by the parties, nothing herein (a) is intended to be, and
does not constitute a commitment or obligation by any of the Commitment Parties
or any of their respective affiliates to provide financing or to act in any
capacity (other than as expressly contemplated herein) in connection with the
Commercially Reasonable Efforts Revolving Credit Facility Amount, and no
liability or obligation on the part of any of the Commitment Parties or any of
their respective affiliates to proceed with or participate in the Commercially
Reasonable Efforts Revolving Credit Facility Amount shall be created or exist
unless or until such Commitment Party has executed and delivered the Bank
Documentation (as defined below) setting forth the Commercially Reasonable
Efforts Revolving Credit Facility Amount and then only in accordance with the
respective terms and conditions set forth therein or (b) shall require us or
any of our respective affiliates to pay any fees, incur any costs (other than
ordinary course reimbursable out-of-pocket expenses), suffer any loss or agree
to do any other thing in order to assist you in providing the Commercially
Reasonable Efforts Revolving Credit Facility Amount.


No
other financing will be required to fund the Acquisition consideration, to
effect the Refinancing and to pay fees, commissions and expenses in connection
therewith.  Immediately following the
Transactions, neither Borrower nor any of its subsidiaries will have any
indebtedness for borrowed money or preferred equity other than the Bank
Facilities, the 2.50% Convertible Senior Subordinated Notes due 2024, the
1.375% Convertible Senior Subordinated Notes due 2025, the 3.25% Convertible
Senior Subordinated Notes due 2026 and certain other limited indebtedness to be
mutually agreed.  As used herein, the
term “Transactions” means the Acquisition, the Refinancing, the initial
borrowings under the Bank Facilities and the payments of fees, commissions and
expenses in connection with each of the foregoing.


Commitments.


You have requested that UBS,
BA and GSCP (collectively, the “Initial Lenders”) commit to provide the
Committed Bank Facilities and that UBSS and BAS agree to structure, arrange and
syndicate the Bank Facilities (the “Joint Lead Arrangers”).


UBS, BA and GSCP are pleased
to advise you of their several, but not joint, commitments to provide 45%,
27.5% and 27.5%, respectively, of the entire amount of the Committed Bank Facilities
to Borrower upon the terms and subject to the conditions set forth in this
Commitment Letter.  The commitments of
the Initial Lenders hereunder and any amount to be provided under the
Commercially Reasonable Efforts Revolving Credit Facility Amount, if any, are
subject to the negotiation, execution and delivery of definitive documentation
(the “Bank Documentation”) with respect to the Bank Facilities
reasonably satisfactory to the Initial Lenders and you reflecting the terms and
conditions set forth in the Term Sheet, in Annex II hereto (the “Conditions
Annex”) and in the letter of even date herewith addressed to you providing,
among other things, for certain fees relating to the Bank Facilities (the “Fee
Letter”).  You agree that the closing
date of the Transactions and the concurrent closing of the Bank Facilities (the
“Closing Date”) shall be a date mutually agreed upon between you and us.









 



Syndication.


It is agreed that each of
UBSS and BAS will act as a joint lead arranger for the Bank Facilities, each of
UBSS, BAS and GSCP will act as a joint book manager for the Bank Facilities
(collectively, the “Joint Bookmanagers”) and in consultation with you,
will exclusively manage the syndication of the Bank Facilities, and will, in
such capacities, exclusively perform the duties and exercise the authority
customarily associated with such roles. 
It is further agreed that no additional advisors, agents, co-agents,
arrangers or book managers will be appointed outside the terms contained herein
(including the Term Sheet) and no Lender (as defined below) will receive
compensation with respect to any aspect of the Bank Facilities outside the
terms contained herein (including the Term Sheet) and in the Fee Letter in
order to obtain its commitment to participate therein, in each case unless you
and we so agree.  You agree that UBS will
be “on the left” in all syndication and other marketing and promotional
materials and advertisements relating to the Bank Facilities.


The Initial Lenders reserve
the right, prior to or after execution of the Bank Documentation with respect
to the Bank Facilities in consultation with you, to syndicate all or a portion
of its loans and/or commitments to one or more institutions (other than those
certain institutions previously identified by you to us, if any, prior to the
date of this Commitment Letter to be excluded from syndication, the “Blacklist”)
that will become parties to the Bank Documentation (the Initial Lenders and the
institutions becoming parties to the Bank Documentation with respect to all or
a portion of the Bank Facilities, the “Lenders”); provided
that, notwithstanding the foregoing or anything else contained herein, the
failure to form a syndicate is not a condition to our commitments with respect
to the Committed Bank Facilities hereunder and provided
further that notwithstanding our right to syndicate the Bank Facilities and
receive commitments with respect thereto, any assignment prior to the Closing
Date shall not decrease our commitments until the Closing Date.


The Joint Bookmanagers will
exclusively manage, in consultation with you, all aspects of the syndication of
the Bank Facilities, including selection of additional Lenders (other than the
Blacklist), determination of when the Joint Bookmanagers will approach such
potential additional Lenders, awarding of any naming rights and the final
allocations of the commitments in respect of the Bank Facilities among the
additional Lenders.  You agree to, and to
use commercially reasonable efforts to cause the Acquired Business to, actively
assist the Joint Bookmanagers in achieving a timely syndication of the Bank
Facilities that is reasonably satisfactory to the Joint Bookmanagers and
you.  To assist the Joint Bookmanagers in
their syndication efforts, you agree that you will, and will cause your
representatives and advisors to, and will use commercially reasonable efforts
to cause the Acquired Business and its representatives and advisors to,
(a) promptly prepare and provide all financial and other information as we
may reasonably request (and, in the case of information relating to the
Acquired Business and its subsidiaries, to the extent made available to you
after using commercially reasonable efforts) with respect to you, the Acquired
Business, and your and their respective subsidiaries and the transactions
contemplated hereby, including but not limited to financial projections (the “Projections”)
relating to the foregoing, (b) use commercially reasonable efforts to
ensure that such syndication efforts benefit materially from your existing lending
relationships and those of the Acquired Business, (c) make available to
prospective Lenders your senior management and advisors and, to the extent
applicable, use commercially reasonable efforts to make available to
prospective Lenders those of the Acquired Business, (d) host, with the
Joint Bookmanagers, one or more meetings with prospective Lenders, (e) assist
the Joint Bookmanagers in the preparation of one or more customary confidential
information memoranda and other customary marketing materials to be used in
connection with the syndication of the Bank Facilities and (f) use
commercially reasonable









 



efforts to obtain, at
your expense, monitored public ratings of the Bank Facilities from Moody’s
Investors Service (“Moody’s”) and Standard & Poor’s Ratings Group (“S&P”)
in a timely manner and to participate actively in the process of securing such
ratings, including having your senior management and, to the extent applicable,
use commercially reasonable efforts to have those of the Acquired Business meet
with such rating agencies.


You hereby acknowledge that (a) the Commitment Parties 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)
certain of the proposed Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material
non-public information with respect to Borrower or its securities) (each, a “Public
Lender”).  You hereby agree that (w)
you will use commercially reasonable efforts to identify that portion of the
Borrower Materials that may be distributed to the Public Lenders and include a
reasonably detailed term sheet among such Borrower Materials and that all
Borrower Materials that are to be made available to Public Lenders shall be
clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that
the word “PUBLIC” shall appear prominently on the first page thereof; (x) by
marking Borrower Materials “PUBLIC,” you shall be deemed to have authorized the
Commitment Parties and the proposed Lenders to treat such Borrower Materials as
not containing any material non-public information with respect to Borrower or
its securities for purposes of United States federal and state securities laws,
it being understood that certain of such Borrower Materials may be subject to
the confidentiality requirements of the Bank Documentation; (y) all Borrower
Materials marked “PUBLIC” are permitted to be made available through a portion
of the Platform designated “Public Investor;” and (z) the Commitment Parties
shall be entitled to treat any Borrower Materials that are not marked “PUBLIC”
as being suitable only for posting on a portion of the Platform not designated “Public
Investor.”


Information.


You hereby represent and
covenant (and solely with respect to the Acquired Business and its subsidiaries
and any information or representations provided by the Acquired Business, you
hereby represent and covenant to your knowledge) that (a) all information
(other than the Projections and general economic or industry data) that has
been or will be made available to us or any of the Lenders by you, the Acquired
Business, or any of your or its respective representatives in connection with
the transactions contemplated hereby (the “Information”), when taken as
a whole, is and will be true and correct in all material respects and does not
and will not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements contained therein, in the light
of the circumstances under which such statements are made, not materially
misleading and (b) the Projections that have been or will be made
available to us or any of the Lenders by you, the Acquired Business, or any of
your or its respective representatives in connection with the transactions
contemplated hereby have been and will be prepared in good faith based upon
assumptions believed by you to be reasonable (it being understood that
projections by their nature are inherently uncertain and no assurances are
being given that the results reflected in the Projections will be
achieved).  You agree to supplement the
Information and the Projections from time to time prior to the Closing Date, to
the extent necessary, so that the representations and warranties contained in
this paragraph remain true and correct in all material respects.









 



Compensation.


As consideration for the
commitments of the Lenders hereunder with respect to the Committed Bank
Facilities (and any Commercially Reasonable Efforts Revolving Credit Facility
Amount committed to by the Lenders) and the agreement of the Joint Bookmanagers
to structure, arrange and syndicate the Committed Bank Facilities (and with
respect to any Commercially Reasonable Efforts Revolving Credit Facility
Amount, the agreement of the Joint Bookmanagers to use commercially reasonable
efforts to so arrange and syndicate such amount) and to provide advisory services
in connection therewith, you agree to pay, or cause to be paid, the fees set
forth in the Term Sheet and the Fee Letter if the Closing Date occurs; provided however that (a) the Ticking Fee (as defined in the
Fee Letter), if any, shall be payable on the terms set forth in the Fee Letter
irrespective of whether the Closing Date occurs and (b) the expense
reimbursement and indemnification provisions of this Commitment Letter shall
not be affected by any nonoccurrence of the Closing Date.  Once paid, such fees and expenses shall not
be refundable under any circumstances.


Conditions.


The
commitments of the Initial Lenders hereunder with respect to the Committed Bank
Facilities and the Joint Bookmanagers’ agreement to perform the services
described herein are subject to (i) since December 31, 2005 and except as
disclosed in any form, report, schedule, statement or other document, including
any exhibits thereto, required to be filed by the Acquired Business with the
United States Securities and Exchange Commission that were so filed prior to
the date of this Commitment Letter, no change, effect or circumstance occurring that (1) is materially adverse to the
business, condition (financial or otherwise), operations, performance,
properties or prospects of the Acquired Business and its Subsidiaries, taken as
a whole, or (2) materially adversely affects the consummation of the
transactions contemplated by the Acquisition Agreement (an “Acquired
Business Material Adverse Effect”); provided,
however, that in no event shall any of the following, either alone or in
combination, be deemed to constitute, nor shall any of the following be taken
into account in determining whether there has been or will or could be, an Acquired
Business Material Adverse Effect:  (A)
any changes resulting from or arising out of general market, economic or
political conditions (including any changes arising out of acts of terrorism,
or war, weather conditions or other force majeure events), provided that such
changes do not have a substantially disproportionate impact on the Acquired
Business and its Subsidiaries, taken as a whole, (B) any changes resulting from
or arising out of general market, economic or political conditions in the industries
in which the Acquired Business or any of its Subsidiaries conduct business
(including any changes arising out of acts of terrorism, or war, weather
conditions or other force majeure events), provided that such changes do not
have a substantially disproportionate impact on the Acquired Business and its
Subsidiaries, taken as a whole, (C) any changes resulting from or arising out
of actions taken pursuant to (and required by) the Acquisition Agreement or the
failure to take any actions due to restrictions set forth in the Acquisition
Agreement, (D) any changes in the price or trading volume of the Acquired Business’
stock, in and of itself, (E) any failure by the Acquired Business to meet
published revenue or earnings projections, in and of itself, (F) any changes or
effects arising out of or resulting from any legal claims or other proceedings
made by any of the Acquired Business’ stockholders arising out of or related to
the Acquisition Agreement or the Acquisition or (G) any changes arising out of
or resulting from any delay with respect to the receipt by the Acquired Business
or any of its Subsidiaries of pending regulatory approvals relating to its proposed
product offerings of no longer than three months after the date that the
Acquired Business has informed Borrower it expects to obtain such pending
regulatory approvals (provided that at all times during such period, such
approvals are still pending and can be reasonably expected to be









 



obtained within such period); and
(ii) any condition set forth in the Term Sheet or the Conditions Annex not
being satisfied or any representation, covenant or agreement in this Commitment Letter or the Fee Letter not being
complied with in any material respect.


Notwithstanding
anything in this Commitment Letter, the Term Sheet, the Conditions Annex, the
Fee Letter, the Bank Documentation or any other letter agreement or other
undertaking concerning the financing of the Transactions contemplated hereby to
the contrary, (i) the only representations relating to the Acquired
Business and their subsidiaries and businesses the making of which shall be a
condition to availability of the Bank Facilities on the Closing Date shall be
(A) such of the representations made by the Acquired Business in the
Acquisition Agreement as are material to the interests of the Lenders except to
the extent any breach of such representations shall not give you the right to
terminate your obligations under the Acquisition Agreement (the “Acquisition
Agreement Representations”) and (B) the Specified Representations (as
defined below) and (ii) the terms of the Bank Documentation shall be in a form
such that they do not impair availability of the Bank Facilities on the Closing
Date if the conditions set forth herein and in the Term Sheet and the
Conditions Annex are satisfied (it being understood that, to the extent any
collateral (other than collateral that may be perfected by filing of a UCC
financing statement, delivery of a physical stock certificate and related stock
power or, in the case of foreign collateral of any foreign co-borrower, making
of a similar filing in a foreign jurisdiction) referred to in the Term Sheet
under “Security” 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 Bank Facilities on
the Closing Date but shall be required to be delivered after the Closing Date
pursuant to arrangements to be mutually agreed).  For purposes hereof, “Specified
Representations” means the representations and warranties of the Acquired
Business set forth in Term Sheet relating to corporate power and authority and
the enforceability of the Bank Documentation, in each case as they relate to
the entering into and performance of the Bank Documentation, Federal Reserve
margin regulations and the Investment Company Act.


Clear Market.


From the date of this
Commitment Letter until our completion of primary syndication of the Bank
Facilities (as reasonably determined by us and notified in writing to you) of
each portion of the Bank Facilities, you will (and with respect to the Acquired
Business, until the Closing Date, you will use commercially reasonably efforts
to) ensure that no financing for Borrower, the Acquired Business or any of your
or its respective subsidiaries is announced, syndicated or placed without the
prior written consent of the Commitment Parties if such financing, syndication
or placement would have, in the reasonable judgment of the Commitment Parties,
a detrimental effect upon the syndication of the Bank Facilities.


Indemnity and Expenses.


By your acceptance below,
you hereby agree to indemnify and hold harmless each of the Commitment Parties
and the other Lenders and our and their respective affiliates (including,
without limitation, controlling persons) and the directors, officers,
employees, advisors and agents of the foregoing (each, an “Indemnified
Person”) from and against any and all losses, claims, costs, expenses,
damages or liabilities (or actions or other proceedings commenced or threatened
in respect thereof) that arise out of or in connection with this Commitment
Letter, the Term Sheet, the Conditions Annex, the Fee Letter, the Bank Facilities
or any of the transactions contemplated hereby or thereby or the providing or
syndication of the Bank Facilities (or the actual or proposed use of the
proceeds thereof), and to reimburse each









 



Indemnified Person
promptly upon its written demand for any reasonable and documented legal or
other expenses incurred in connection with investigating, preparing to defend
or defending against, or participating in, any such loss, claim, cost, expense,
damage, liability or action or other proceeding (whether or not such Indemnified
Person is a party to any action or proceeding); provided
that any such obligation to indemnify, hold harmless and reimburse an
Indemnified Person shall not be applicable to the extent determined by a final,
non-appealable judgment of a court of competent jurisdiction to have resulted
primarily from the gross negligence, bad faith or willful misconduct of such
Indemnified Person.  You shall not be
liable for any settlement of any such proceeding effected without your written
consent, but if settled with such consent or if there shall be a final judgment
against an Indemnified Person, you shall, subject to the proviso in the
preceding sentence, indemnify such Indemnified Person from and against any loss
or liability by reason of such settlement or judgment.  You shall not, without the prior written
consent of any Indemnified
Person, effect any settlement of any pending or threatened proceeding in
respect of which such Indemnified Person is or could have been a party and
indemnity could have been sought hereunder by such Indemnified Person, unless
such settlement (i) includes an unconditional release of such Indemnified
Person from all liability or claims that are the subject matter of such
proceeding and (ii) does not include a statement as to or an admission of
fault, culpability, or a failure to act by or on behalf of such Indemnified
Person.  None of us or any other Lender
(or any of their respective affiliates) shall be responsible or liable to
Borrower, the Acquired Business or any of your or its respective subsidiaries,
affiliates or stockholders or any other person or entity for any indirect,
punitive or consequential damages which may be alleged as a result of this
Commitment Letter, the Term Sheet, the Conditions Annex, the Fee Letter, the
Bank Facilities or the transactions contemplated hereby or thereby.  In addition, you hereby agree to reimburse us
upon demand for all reasonable and documented out-of-pocket costs and expenses
(including, without limitation, reasonable and documented legal fees and
expenses of the Commitment Parties (limited to one primary counsel and, to the
extent necessary, one local counsel in each relevant jurisdiction (subject to
the need for additional counsel as a result of conflicts), appraisal, consulting
and audit fees (to the extent any such appraisal, consulting or audit was
initiated with Borrower’s consent), and printing, reproduction, document
delivery, travel, communication and publicity costs) incurred in connection
with the syndication and execution of the Bank Facilities, and the preparation,
review, negotiation, execution and delivery of this Commitment Letter, the Term
Sheet, the Conditions Annex, the Fee Letter and the Bank Documentation; provided however that Borrower also agrees to reimburse BA
and BAS for the reasonable and documented fees and expenses of Moore & Van
Allen, PLLC incurred in connection with the preparation, review, negotiation,
execution and delivery of this Commitment Letter, the Term Sheet, the
Conditions Annex, the Fee Letter and related documentation known to Borrower
through the date of this Commitment Letter. 
Notwithstanding anything to the contrary contained in this Commitment
Letter or in the Term Sheet, if the Seller Financial Advisor (as defined
below), BAS, BA and/or its affiliates arranges financing for a successful
competing bidder for the Acquired Business, Borrower shall not be required to
reimburse BAS, BA or any of its affiliates for the fees and expenses of Moore
& Van Allen, PLLC incurred in connection with the preparation, review,
negotiation, execution and delivery of this Commitment Letter, the Term Sheet,
the Conditions Annex, the Fee Letter and related documentation known to
Borrower.


Borrower agrees that none of the Commitment Parties nor any of their respective
affiliates (as such term is defined for purposes of Rule 12b-2 of the General
Rules and Regulations of the Securities and Exchange Act of 1934, as amended),
officers, directors, agents (other than agents who are not appointed with
Borrower’s express consent), employees or controlling persons shall have any
liability to Borrower or any person asserting claims on behalf of or in right
of Borrower in connection with or as a result of either the commitments of the
Commitment Parties under this Commitment Letter or any matter









 



referred
to in this Commitment Letter, including, without limitation, related services
and activities conducted since the date hereof except, with respect to a
Commitment Party, to the extent that it shall be determined by a court of competent
jurisdiction in a judgment that has become final in that it is no longer
subject to appeal or other review that any losses, claims, damages, liabilities
or expenses incurred by Borrower and its affiliates (as such term is defined
for purposes of Rule 12b-2 of the General Rules and Regulations of the
Securities and Exchange Act of 1934, as amended), officers, directors,
employees or controlling persons resulted primarily from the gross negligence
or willful misconduct of such Commitment Party in performing the services that
are the subject of this Commitment Letter.


Confidentiality.


This Commitment Letter is
delivered to you upon the condition that neither the existence of this
Commitment Letter, the Term Sheet, the Conditions Annex, the Fee Letter nor any
of their contents shall be disclosed by you or any of your subsidiaries,
directly or indirectly, to any other person, except that such existence and
contents may be disclosed (i) as may be compelled in a judicial or administrative
proceeding or as otherwise required by law and (ii) to your directors,
officers, employees, legal counsel and accountants, in each case on a
confidential and “need-to-know” basis and only in connection with the
transactions contemplated hereby.  In
addition, this Commitment Letter, the Term Sheet, the Conditions Annex and the
Fee Letter (but, in the case of the Fee Letter, only with appropriate
redactions that are satisfactory to the Joint Bookmanagers) may be disclosed to
the Acquired Business and its directors, officers, employees, advisors and
agents, in each case on a confidential and “need-to-know” basis and only in
connection with the transactions contemplated hereby.


Other Services.


You acknowledge and agree
that we and/or our affiliates may be requested to provide additional services
with respect to Borrower, the Acquired Business and/or their respective
affiliates or other matters contemplated hereby.  Any such services will be set out in and governed
by a separate agreement(s) (containing terms relating, without limitation, to
services, fees and indemnification) in form and substance satisfactory to the
parties thereto.  Nothing in this
Commitment Letter is intended to obligate or commit us or any of our affiliates
to provide any services other than as set out herein.


Conflicts
of Interest.


You acknowledge that and
waive any conflict of interest arising in connection with:


(a)                                  each of the
Commitment Parties and/or their respective affiliates (the “Commitment Party
Group”), in its capacity as principal or agent is involved in a wide range
of commercial banking and investment banking activities globally (including
investment advisory; asset management; research; securities issuance, trading,
and brokerage) from which conflicting interests or duties may arise and therefore,
conflicts may arise between duties of each of the Commitment Parties hereunder
and other duties or interests of each of the Commitment Parties or another
member of the Commitment Party Group;


(b)                                 each of the
Commitment Parties and any other member of the Commitment Party Group may, at
any time, (i) provide services to any other person, (ii) engage in









 



any transaction (on its own account or otherwise) with respect to you
or any member of the same group as you or (iii) act in relation to any matter
for any other person whose interests may be adverse to you or any member of
your group (including, but not limited to, the Acquired Business) (a “Third
Party”), and may retain for its own benefit any related remuneration or
profit, notwithstanding that a conflict of interest exists or may arise and/or
any member of the Commitment Party Group is in possession or has come or comes
into possession (whether before, during or after the agreements hereunder) of
information confidential to you; provided that such information shall not be
shared with any Third Party. You accept that permanent or ad hoc arrangements/information barriers
may be used between and within divisions of each of the Commitment Parties or
other members of the Commitment Party Group for this purpose and that locating
directors, officers or employees in separate workplaces is not necessary for
such purpose;


(c)                                  information
which is held elsewhere within any of the Commitment Parties or the Commitment
Party Group but of which none of the individual directors, officers or
employees having the conduct of transactions contemplated by this letter actually
has knowledge (or can properly obtain knowledge without breach of internal
procedures), shall not for any purpose be taken into account in determining
each of the Commitment Parties’ respective responsibilities to you hereunder;
and


(d)                                 none of the
Commitment Parties nor any other member of the Commitment Party Group shall
have any duty to disclose to, or utilize for the benefit of, you, any
non-public information acquired in the course of providing services to any
other person, engaging in any transaction (on its own account or otherwise) or
otherwise carrying on its business.


Each of the Commitment
Parties and the Commitment Party Group operate rules, policies and procedures,
including independence policies and permanent and ad hoc information barriers between and within divisions of
each of the Commitment Parties and other members of the Commitment Party Group,
directed to ensuring that (i) the individual directors, officers and employees
involved in an assignment undertaken by a member of the Commitment Party Group
(including the engagement hereunder) are not influenced by any such conflicting
interest or duty and (ii) that any confidential information held by a member of
the Commitment Party Group is not disclosed or made available to any other client.


BAS and/or its affiliates have been retained as the sell-side financial
advisor to the Acquired Business (in such capacity, the “Seller Financial
Advisor”) in connection with the Acquisition.  You waive any claim you
may have based on the actual or potential conflicts of interest that may arise
or result from the engagement of the Seller Financial Advisor and from BAS
and/or its affiliates arranging or providing or contemplating arranging or
providing financing for a competing bidder.


You acknowledge the Seller Financial Advisor role of BAS and/or its
affiliates and that, in such capacity, (i) the Seller Financial Advisor
may recommend to the Acquired Business that the Acquired Business not pursue or
accept your offer or proposal, (ii) the Seller Financial Advisor may advise the
Acquired Business in other manners adverse to your interests, including,
without limitation, by providing advice on pricing, leverage levels, and timing
of closing with respect to your bid, taking other









 



actions
with respect to your bid and taking action under any definitive agreement
between you and the Acquired Business, and (iii) the Seller Financial Advisor
may acquire information about the Acquired Business, the Acquisition, and other
potential purchasers and their strategies and proposals, but the Seller Financial
Advisor shall have no obligation to disclose to you the substance of such
information or the fact that it is in possession thereof.


No
Fiduciary Relationship.


You
hereby acknowledge that, if any Bank Documentation is executed and delivered,
the Commitment Parties would be acting solely as initial lenders,
administrative agent, collateral agent, syndication agent, documentation agent,
issuing bank, swingline lender, arrangers or bookrunners in connection with the
Bank Facilities.  You further acknowledge
that the Commitment Parties would be acting pursuant to a contractual
relationship created solely by such Bank Documentation entered into on an arm’s
length basis and in no event do the parties intend that the Commitment Parties
act or be responsible as a fiduciary to you or any of your subsidiaries, your
stockholders or creditors or any other person in connection with any activity
that the Commitment Parties may undertake or has undertaken in furtherance of
the Bank Facilities, either before or after the date hereof.  The Commitment Parties hereby expressly
disclaim any fiduciary or similar obligations to any such person, either in
connection with the Bank Facilities or any matters leading up to the execution
of the Bank Documentation, and you hereby confirm your understanding and
agreement to that effect.  Each of you
and we agree that you and we are each responsible for making our own
independent judgments with respect to the Bank Facilities, and that any
opinions or views expressed by the Commitment Parties to you regarding such
transactions, including but not limited to any opinions or views with respect
to the price or market for your or your subsidiaries’ credit facilities or
securities, do not constitute advice or recommendations to you or any of your
subsidiaries.  You, on behalf of yourself
and your subsidiaries, hereby waive and release, to the fullest extent permitted
by law, any claims that you or any of your subsidiaries may have against the
Commitment Parties with respect to any breach or alleged breach of any
fiduciary or similar duty in connection with the transactions contemplated by
this Commitment Letter or any matters leading up to the execution of the Bank
Documentation.


Governing Law, Etc.


This Commitment Letter shall
not be assignable by you without the prior written consent of each other party
hereto and shall not be assignable by us without your prior written consent,
and any purported assignment without such consents shall be void.  We reserve the right to employ the services
of our affiliates in providing services contemplated by this Commitment Letter
and to allocate, in whole or in part, to our affiliates certain fees payable to
us in such manner as we and our affiliates may agree in our sole discretion.  You also agree that the Initial Lenders may
at any time and from time to time assign all or any portion of their respective
commitments hereunder to one or more of their affiliates.  You further acknowledge that we may share
with any of our affiliates, and such affiliates may share with us, any information
related to Borrower, the Acquired Business, or any of your or its respective
subsidiaries or affiliates (including, without limitation, information relating
to creditworthiness) and the transactions contemplated hereby.  We agree to treat, and cause any such
affiliate to treat, all non-public information provided to us by you as
confidential information in accordance with customary banking industry
practices.


This Commitment Letter may
not be amended or any provision hereof waived or modified except by an
instrument in writing signed by us 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 or other electronic transmission shall be effective as
delivery of a manually executed counterpart of this Commitment Letter.  Headings are for convenience of reference
only and shall not affect the construction of, or be taken into consideration
when interpreting, this Commitment Letter. 
This Commitment Letter is intended to be for the benefit of the parties
hereto and is not intended to confer any benefits upon, or create any rights in
favor of, and may not be relied on by, any persons other than the parties
hereto, the Lenders and, with respect to the indemnification provided under the
heading “Indemnity and Expenses,” each Indemnified Person.


This Commitment Letter shall be
governed by, and construed in accordance with, the laws of the State of New
York without regard to principles of conflicts of law to the extent that the
application of the laws of another jurisdiction will be required thereby.  Any right to trial by jury with respect to
any claim or action arising out of this Commitment Letter is hereby
waived.  You hereby submit to the
exclusive jurisdiction of the federal and New York State courts located in The
City of New York (and appellate courts thereof) in connection with any dispute
related to this Commitment Letter or any of the matters contemplated hereby,
and agree that service of any process, summons, notice or document by
registered mail addressed to you shall be effective service of process against
you for any suit, action or proceeding relating to any such dispute.  You irrevocably and unconditionally waive any
objection to the laying of such venue of any such suit, action or proceeding
brought in any such court and any claim that any such suit, action or
proceeding has been brought in an inconvenient forum.  A final judgment in any such suit, action or
proceeding brought in any such court may be enforced in any other courts to
whose jurisdiction you are or may be subject by suit upon judgment.


Patriot Act.


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”), we and
the other Lenders may be required to obtain, verify and record information that
identifies Borrower and the Acquired Business, which information includes the
name, address and tax identification number and other information regarding
them that will allow us or such Lender to identify them in accordance with the
Patriot Act.  This notice is given in
accordance with the requirements of the Patriot Act and is effective as to us
and the Lenders.


Please indicate your
acceptance of the terms hereof and of the Term Sheet, the Conditions Annex and
the Fee Letter by returning to us executed counterparts of this Commitment
Letter and the Fee Letter not later than 5:00 p.m., New York City time, on
January 5, 2007 (the “Deadline”). 
This Commitment Letter and the commitments of the Lenders hereunder and
the agreement of the Joint Bookmanagers to provide the services described
herein are also conditioned upon your acceptance hereof and of the Fee Letter,
and our receipt of executed counterparts hereof and thereof on or prior to the
Deadline.  Upon the earliest to occur of
(A) the execution and delivery of the Bank Documentation by all of the
parties thereto, (B) July 31, 2007, if the Bank Documentation shall not
have been executed and delivered by all such parties prior to that date and
(C) if earlier than (B), the date of termination of the Acquisition
Agreement, this Commitment Letter and the commitments of the Initial Lenders
hereunder and the agreement of the Joint Bookmanagers to provide the services
described herein shall automatically terminate unless the Initial Lenders and
the Joint Bookmanagers shall, in their discretion, agree to an extension.  The compensation, expense reimbursement,
confidentiality, indemnification and governing law and









 



forum provisions hereof
and in the Term Sheet and the Fee Letter shall survive termination of (i) this
Commitment Letter (or any portion hereof) and (ii) any or all of the
commitments of the Initial Lenders hereunder. 
The provisions under the headings “Syndication,” “Clear Market,” “Indemnity
and Expenses” and “No Fiduciary Relationship” above shall survive the execution
and delivery of the Bank Documentation; provided that,
to the extent the Bank Documentation is executed by all relevant parties
thereto, the expense reimbursement and indemnification provisions hereof and in
the Term Sheet shall automatically terminate and be superseded by the
provisions of the Bank Documentation upon the initial funding thereunder.


[Signature Page Follows]


 









 



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


	
  

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  UBS LOAN FINANCE
  LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Eric H.
  Coombs

  
	
   

  	
   

  	
  Name: Eric
  H. Coombs

  
	
   

  	
   

  	
  Title: Managing
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Barbara
  S. Wang

  
	
   

  	
   

  	
  Name: Barbara
  S. Wang

  
	
   

  	
   

  	
  Title: 

  	
  Director and
  Counsel

  
	
   

  	
   

  	
   

  	
  Region Americas
  Legal

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  UBS SECURITIES
  LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Eric H.
  Coombs

  
	
   

  	
   

  	
  Name: Eric H.
  Coombs

  
	
   

  	
   

  	
  Title: Managing
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Barbara
  S. Wang

  
	
   

  	
   

  	
  Name: Barbara
  S. Wang

  
	
   

  	
   

  	
  Title: 

  	
  Director and
  Counsel

  
	
   

  	
   

  	
   

  	
  Region Americas
  Legal

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
					



 


Commitment Letter signature page


 









 



 


	
  

  	
  BANK OF AMERICA,
  N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard
  C. Hardison

  
	
   

  	
   

  	
  Name: Richard
  C. Hardison

  
	
   

  	
   

  	
  Title: Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BANC OF AMERICA
  SECURITIES LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Subhadra
  Shrivastava

  
	
   

  	
   

  	
  Name: Subhadra
  Shrivastava

  
	
   

  	
   

  	
  Title: Vice
  President

  



 


 


Commitment Letter signature page


 









 



 


	
  

  	
  GOLDMAN SACHS
  CREDIT PARTNERS L.P.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Walter
  A. Jackson

  
	
   

  	
   

  	
  Name: Walter
  A. Jackson

  
	
   

  	
   

  	
  Title:

  



 


 


 


Commitment Letter signature page









 



Accepted and agreed to as of

the date first written above:


 


ADVANCED MEDICAL OPTICS,
INC.


 


	
  By:

  	
  /s/ Richard
  A. Meier

  	
   

  
	
   

  	
  Name: Richard
  A. Meier

  	
   

  
	
   

  	
  Title: 

  	
  Executive Vice
  President, Operations,

  
	
   

  	
   

  	
  President of
  Global Eye Care

  
	
   

  	
   

  	
  and Chief Financial
  Officer

  
				



 


 


 


 


Commitment Letter signature page


 















 


ANNEX I


SUMMARY
OF PRINCIPAL TERMS AND CONDITIONS


Bank Facilities(1)


	
  Borrower:

  	
   

  	
  Advanced Medical Optics, Inc. (“Borrower”)
  and, at Borrower’s option, one or more foreign subsidiaries of Borrower
  reasonably acceptable to the Joint Bookmanagers shall be a co-borrower.

  
	
   

  	
   

  	
   

  
	
  Lenders:

  	
   

  	
  A syndicate of banks, financial institutions and
  other entities (other than the Blacklist), including UBS Loan Finance LLC (“UBS”),
  Bank of America, N.A. (“BA”) and Goldman Sachs Credit Partners L.P. (“GSCP”),
  arranged by the Joint Lead Arrangers (collectively, the “Lenders”).

  
	
   

  	
   

  	
   

  
	
  Joint Lead Arrangers:

  	
   

  	
  UBS Securities LLC (“UBSS”) and Banc of
  America Securities LLC (“BAS” and, together with UBSS or the “Joint
  Lead Arrangers”).

  
	
   

  	
   

  	
   

  
	
  Joint Bookmanagers:

  	
   

  	
  UBS Securities LLC, Banc of America Securities LLC
  and Goldman Sachs Credit Partners L.P.

  
	
   

  	
   

  	
   

  
	
  Administrative Agent, 

  Collateral Agent

  and Issuing Bank:

  	
   

  	
  

  Bank of America, N.A. (the “Administrative Agent” and the “Collateral
  Agent”).

  
	
   

  	
   

  	
   

  
	
  Syndication Agent:

  	
   

  	
  UBS Securities LLC.

  
	
   

  	
   

  	
   

  
	
  Documentation Agent:

  	
   

  	
  Goldman Sachs Credit Partners L.P.

  
	
   

  	
   

  	
   

  
	
  Swingline Lender:

  	
   

  	
  Bank of America, N.A..

  
	
   

  	
   

  	
   

  
	
  Type and Amount of Facilities:

  	
   

  	
  Term Loan Facility:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Term Loan Facility (the “Term Loan Facility”)
  in an aggregate principal amount of $600.0 million (each individual loan
  thereunder, a “Term Loan” and together, the “Term Loans”).

  



 






(1)                                  All
capitalized terms used but not defined herein shall have the meanings provided
in the Commitment Letter to which this summary is attached.









 



 


	
  

  	
   

  	
  Revolving Credit Facility:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  A revolving credit facility (the “Revolving
  Credit Facility”) in an aggregate principal amount of
  $300.0 million.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  The Term Loan Facility and the Revolving Credit
  Facility are herein referred to collectively as the “Committed Bank
  Facilities.”

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  In addition, the Commitment Parties will use
  commercially reasonable efforts to provide up to an additional $100.0 million
  under the Revolving Credit Facility (the “Commercially Reasonable Efforts
  Revolving Credit Facility Amount” and together with the Committed Bank
  Facilities, the “Bank Facilities” or the “Facilities”).

  
	
   

  	
   

  	
   

  
	
  Uncommitted
  Increase in 

  Bank Facilities: 

  	
   

  	
  The Bank Documentation will permit Borrower to incur
  up to $200.0 million aggregate principal amount of (x) additional term
  loans under an existing tranche under the Term Loan Facility or under a new
  tranche under the Term Loan Facility having the same guarantees as, and
  secured on a pari passu basis by the same collateral
  securing, the Bank Facilities (the “Additional Term Loans”) and/or (y)
  additional credit extensions under the Revolving Credit Facility having the
  same guarantees as, and secured on a pari
  passu basis by the same collateral securing, the Bank Facilities
  and otherwise having the terms provided for in the Revolving Credit Facility
  (the “Additional Revolving Credit Availability”), provided that (i) the Additional
  Revolving Credit Availability shall not exceed $100.0 million, (ii) no event
  of default or default exists or would exist after giving effect thereto,
  (iii) all financial covenants would be satisfied on a pro forma basis on such date and for the
  most recent determination period, after giving effect to such Additional Term
  Loans and/or such Additional Revolving Credit Availability (assuming all such
  availability is fully drawn) and the application of proceeds thereof and
  other customary and appropriate pro forma adjustment
  events, including any acquisitions or dispositions after the beginning of the
  relevant determination period but prior to or simultaneous with the borrowing
  of such Additional Term Loans or the making available of the Additional
  Revolving Credit Availability, (iv) if the Additional Term Loans are not
  part of any existing tranche of the Term Loan Facility, the maturity date of
  the Additional Term Loans shall not be prior to the Maturity Date of the Term
  Loan Facility, (v) amortiza­tion payments shall be no more than ratable
  with the amortization payments under any existing tranche of the Term Loan
  Facility,

  



 









 



 


	
  

  	
   

  	
  and the Additional Term Loans shall otherwise be no
  more than pari passu with the Term Loan Facility with respect to mandatory
  prepayments and other payment rights and (vi) the terms and
  documentation in respect thereof shall otherwise be reasonably satisfactory
  to Borrower, the Joint Lead Arrangers and the Administrative Agent.  Neither Additional Term Loans nor
  Additional Revolving Credit Availability shall be subject to “most favored
  nation” pricing provisions.  Borrower
  may seek commitments from existing Lenders (each of which shall be entitled
  to agree or decline to participate in its sole discretion) and additional
  financial institutions reasonably acceptable to the Joint Lead Arrangers and
  the Administrative Agent who shall thereupon become Lenders.  The Bank Documentation shall be amended to
  give effect to the Additional Term Loans and/or Additional Revolving Credit
  Availability by documentation executed by the Lender or Lenders making the
  commitments with respect to the Additional Term Loans, the Administrative
  Agent and Borrower, and without the consent of any other Lender.

  
	
   

  	
   

  	
   

  
	
  Available Currencies:

  	
   

  	
  The Facilities will be available in U.S. dollars,
  euros, other currencies to be mutually agreed and/or a combination thereof,
  as mutually determined by the Joint Lead Arrangers and Borrower.

  
	
   

  	
   

  	
   

  
	
  Purpose:

  	
   

  	
  Proceeds of the Term Loan Facility and not more than
  $250.0 million of the Revolving Credit Facility will be used on the Closing
  Date to finance a portion of the Acquisition consideration and the
  Refinancing and to pay fees, commissions and expenses in connection
  therewith.  Following the Closing Date,
  the Revolving Credit Facility will also be used by Borrower and its
  subsidiaries for working capital and general corporate purposes (including
  permitted acquisitions).

  
	
   

  	
   

  	
   

  
	
  Closing Date:

  	
   

  	
  The date of the closing of the Acquisition, but not
  later than July 31, 2007.

  
	
   

  	
   

  	
   

  
	
  Maturity Dates:

  	
   

  	
  Term Loan Facility: seven (7)
  years from the Closing Date; provided,
  however, that in no event shall the maturity date for the Term Loan Facility
  be later than May 1, 2014.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Revolving Credit Facility:  six (6) years from the Closing Date.

  
	
   

  	
   

  	
   

  
	
  Availability:

  	
   

  	
  Term Loan Facility:  Upon satisfaction or waiver of conditions
  precedent to drawing specified herein, in the Commitment Letter and in the
  Conditions Annex, a single drawing may be made on the Closing Date of up to
  the full amount of the Term Loan Facility.

  



 









 



 


	
  

  	
   

  	
  Revolving Credit Facility:  Upon satisfaction or waiver of conditions
  precedent to drawing specified herein, in the Commitment Letter and in the
  Conditions Annex, borrowings may be made at any time on or after the Closing
  Date to but excluding the business day preceding the maturity date of the
  Revolving Credit Facility; provided,
  however that not more than $250.0 million of the Revolving Credit Facility
  may be drawn on the Closing Date.

  
	
   

  	
   

  	
   

  
	
  Letters of Credit:

  	
   

  	
  Up to $35.0 million of the Revolving Credit Facility
  will be available for letters of credit, on customary terms and conditions to
  be set forth in the Bank Documentation. 
  Each Lender under the Revolving Credit Facility will purchase an
  irrevocable and unconditional participation in each Letter of Credit.  Each letter of credit shall expire not
  later than the earlier of (i) 12 months after its date of issuance and
  (ii) the seventh day prior to the Maturity Date of the Revolving Credit
  Facility; provided that any
  letter of credit may provide for the renewal thereof for additional one-year
  periods (which shall in no event extend beyond the date referred to in clause
  (ii) above).

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Drawings under any letter of credit shall be
  reimbursed by Borrower on the same business day on which Borrower receives
  notice of such drawing from the Issuing Bank. 
  To the extent that Borrower does not reimburse the Issuing Bank on the
  same business day, the Lenders under the Revolving Credit Facility shall be
  irrevocably obligated to reimburse the Issuing Bank pro rata based upon their respective Revolving
  Credit Facility commitments.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  The issuance of all letters of credit shall be
  subject to the customary procedures of the Issuing Bank.

  
	
   

  	
   

  	
   

  
	
  Swingline Facility:

  	
   

  	
  Up to $20.0 million of the Revolving Credit Facility
  will be available for swingline borrowings, on customary terms and conditions
  to be set forth in the Bank Documentation. 
  Each Lender under the Revolving Credit Facility will purchase an
  irrevocable and unconditional participation in each swingline loan.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Except for purposes of calculating the commitment
  fee described below, any swingline borrowings will reduce availability under
  the Revolving Credit Facility on a dollar-for-dollar basis.

  
	
   

  	
   

  	
   

  
	
  Amortization:

  	
   

  	
  Term Loan Facility:  The Term Loan Facility will amortize in
  equal quarterly installments in annual amounts equal to 1.0% of the original
  principal amount of the Term Loan Facility, with the balance payable on the
  Maturity Date.

  



 









 



 


	
  

  	
   

  	
  Revolving Credit Facility:  None.

  
	
   

  	
   

  	
   

  
	
  Interest:

  	
   

  	
  At Borrower’s option, loans will bear interest based
  on the Base Rate or LIBOR, as described below (except that all swingline
  borrowings will accrue interest based on the Base Rate):

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  A.  Base
  Rate Option

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Interest will be at the Base Rate plus the
  applicable Interest Margin, calculated on the basis of the actual number of
  days elapsed in a year of 365 days and payable quarterly in arrears.  The Base Rate is defined as the higher of
  the Federal Funds Rate, as published by the Federal Reserve Bank of New York,
  plus 1/2 of 1% and the prime commercial lending rate of BA.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Base Rate borrowings (other than swingline
  borrowings) will require one business day’s prior notice and will be in
  minimum amounts to be mutually agreed upon.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  B.  LIBOR
  Option

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Interest will be determined for periods to be
  selected by Borrower (“Interest Periods”) of one, two, three or six or
  (if available to all applicable Lenders) nine or twelve months and will be at
  an annual rate equal to the London Interbank Offered Rate (“LIBOR”)
  for the corresponding deposits of U.S. dollars, plus the applicable Interest
  Margin.  LIBOR will be determined by
  the Administrative Agent at the start of each Interest Period and will be
  fixed through such period.  Interest
  will be paid at the end of each Interest Period or, in the case of Interest
  Periods longer than three months, quarterly, and will be calculated on the
  basis of the actual number of days elapsed in a year of 360 days.  LIBOR will be adjusted for maximum
  statutory reserve requirements (if any).

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  LIBOR borrowings will require three business days’
  prior notice for U.S. dollar borrowings and four business days’ prior notice
  for any foreign currency loans and will be in minimum amounts to be mutually
  agreed upon.

  
	
   

  	
   

  	
   

  
	
  Default Interest and Fees:

  	
   

  	
  Upon the occurrence and during the continuance of a
  payment or bankruptcy event of default, interest will accrue (i) in the case
  of overdue or unpaid (in the case of a bankruptcy event of default)
  principal, interest or premium (if any) on any loan at a rate of 2.0% per
  annum plus the rate otherwise applicable to such loan and (ii) in the case of
  any other overdue or unpaid (in the case of a bankruptcy event of default)
  amount, at a rate of 2.0% per 

  



 









 



 


	
  

  	
   

  	
  annum plus the non-default interest rate then
  applicable to Base Rate loans under the Revolving Credit Facility. Default
  interest shall be payable on demand.

  
	
   

  	
   

  	
   

  
	
  Interest Margins:

  	
   

  	
  The applicable Interest Margin will be the basis
  points set forth in the following table; provided
  that after the date on which Borrower shall have delivered financial
  statements for the first fiscal quarter ending after the Closing Date, the
  Interest Margins with respect to the Revolving Credit Facility will be
  subject to step-downs to be mutually agreed upon.

  



 


	
  

  	
   

  	
  Base Rate

  Loans

  	
   

  	
  LIBOR

  Loans

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Term Loan
  Facility

  	
   

  	
  1.25

  	
  %

  	
  2.25

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Revolving Credit
  Facility

  	
   

  	
  1.25

  	
  %

  	
  2.25

  	
  %

  



 


	
  Commitment Fee:

  	
   

  	
  A Commitment Fee shall accrue on the unused amounts
  of the commitments under the Revolving Credit Facility.  Such Commitment Fee will initially be 0.50%
  per annum; provided that after
  the date on which Borrower shall have delivered financial statements for the
  first fiscal quarter ending after the Closing Date, the Commitment Fee will
  be subject to a step-down to 0.375% per annum in a manner to be mutually
  agreed upon.  Accrued Commitment Fees
  will be payable quarterly in arrears (calculated on a 360-day basis) for the
  account of the Lenders from the Closing Date.

  
	
   

  	
   

  	
   

  
	
  Letter of Credit Fees:

  	
   

  	
  Borrower will pay (i) the Issuing Bank a fronting
  fee equal to the amount set forth in the Fee Letter and (ii) the Lenders
  under the Revolving Credit Facility letter of credit participation fees equal
  to the Interest Margin for LIBOR Loans under the Revolving Credit Facility,
  in each case, on the undrawn amount of all outstanding letters of
  credit.  In addition, Borrower will pay
  the Issuing Bank customary issuance fees.

  
	
   

  	
   

  	
   

  
	
  Mandatory Prepayments:

  	
   

  	
  Loans shall be prepaid in an amount equal to
  (a) 100% of the net proceeds received from the sale or other disposition
  of all or any part of the assets of Borrower or any of its subsidiaries after
  the Closing Date other than sales of inventory in the ordinary course of
  business and other exceptions to be agreed, (b) 100% of the net proceeds
  received by Borrower or any of its subsidiaries from the issuance of debt or
  preferred stock after the Closing Date, other than exceptions to be agreed,
  (c) 100% of all casualty

  



 









 



 


	
  

  	
   

  	
  and condemnation proceeds in excess of amounts
  applied promptly to replace or restore any properties in respect of which
  such proceeds are paid to Borrower and its subsidiaries and (d) 50% of
  excess cash flow of Borrower and its subsidiaries (to be defined in a manner
  to be agreed and with step-downs based on achievement of leverage targets to
  be mutually agreed).

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  There will be no prepayment penalties (except LIBOR
  breakage costs) for mandatory prepayments.

  
	
   

  	
   

  	
   

  
	
  Optional Prepayments:

  	
   

  	
  Permitted in whole or in part, with prior notice but
  without premium or penalty (except LIBOR breakage costs) and including
  accrued and unpaid interest, subject to limitations as to minimum amounts of
  prepayments.

  
	
   

  	
   

  	
   

  
	
  Application of Prepayments:

  	
   

  	
  Optional prepayments will be applied in the manner
  directed by Borrower.  Mandatory
  prepayments will be applied in a manner to be mutually agreed.

  
	
   

  	
   

  	
   

  
	
  Guarantees:

  	
   

  	
  The Facilities will be fully and unconditionally
  guaranteed on a joint and several basis by all of the existing and future
  direct and indirect subsidiaries of Borrower and those of any co-borrower
  (collectively, the “Guarantors”), subject to (i) exceptions for
  foreign subsidiaries (in the event there is a foreign subsidiary co-borrower,
  to the extent such guarantees would be prohibited by applicable law or would
  result in adverse tax consequences), (ii) exceptions for immaterial
  subsidiaries to be mutually agreed (with such subsidiaries becoming
  Guarantors to the extent they exceed any of certain financial thresholds to
  be mutually agreed) and (iii) other exceptions to be mutually agreed.  If there is a co-borrower, Borrower will
  guarantee the obligations of such co-borrower, and the co-borrower will guarantee
  the obligations of Borrower, unless the co-borrower is a foreign entity, in
  which case the co-borrower shall only guarantee Borrower’s obligations to the
  extent such guarantees would not be prohibited by applicable law or would not
  result in adverse tax consequences.

  
	
   

  	
   

  	
   

  
	
  Security:

  	
   

  	
  The Facilities and any hedging and/or treasury
  management obligations to which a Lender or an affiliate of a Lender is a
  counterparty will be secured by perfected first priority (subject to
  exceptions to be mutually agreed) pledges of all of the equity interests of
  each of Borrower’s and each Guarantors’ direct subsidiaries, and perfected
  first priority (subject to exceptions to be mutually agreed) security
  interests in and mortgages on substantially all tangible and intangible
  assets (including, without limitation, accounts receivable, inventory,
  equipment, general intangibles, intercompany notes, insurance policies,
  investment property,

  



 









 



 


	
  

  	
   

  	
  intellectual property, material owned real property,
  cash and proceeds of the foregoing but in any event excluding vehicles,
  leased real property and certain deposit accounts to be mutually agreed) of
  Borrower and the Guarantors, wherever located, now or hereafter owned, except
  to the extent such pledge would be prohibited by applicable law or would
  result in materially adverse tax consequences, and subject to such other
  exceptions as are agreed, in each case except for those assets as to which
  parties mutually agree that the cost of obtaining a security interest therein
  are excessive in relation to the value of the security to be afforded
  thereby.

  
	
   

  	
   

  	
   

  
	
  Conditions to Initial Borrowings:

  	
   

  	
  Conditions precedent to initial borrowings under the
  Facilities will be limited to those set forth in the Commitment Letter and
  annexes thereto and the accuracy of the Acquisition Agreement Representations
  and the Specified Representations, receipt of insurance policies naming the
  Collateral Agent as an additional insured and receipt of a customary solvency
  certificate (as to Borrower and its subsidiaries on a consolidated basis).

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  The Bank Documentation shall
  not contain (a) any material conditions precedent other than the
  conditions precedent set forth in the Commitment Letter or the annexes
  thereto or (b) any material representation or warranty, affirmative or
  negative covenant or event of default not set forth in the Commitment Letter
  or the annexes or exhibits thereto, the accuracy, compliance or absence,
  respectively, of or with which would be a condition to the initial borrowing
  under the Bank Facilities.

  
	
   

  	
   

  	
   

  
	
  Conditions to Each Borrowing:

  	
   

  	
  Conditions precedent to each borrowing or issuance
  under the Facilities will be limited to (1) the absence of any
  continuing default or event of default (and with respect solely to the
  initial borrowing under the Bank Facilities, other than, with respect to the
  Acquired Business, by reason of breach of a representation or warranty other
  than an Acquisition Agreement Representation or a Specified Representation),
  (2) the accuracy of all representations and warranties in all material
  respects (subject to the second paragraph under “Conditions” in the
  Commitment Letter) and (3) receipt of a customary borrowing notice or letter
  of credit request, as applicable.

  
	
   

  	
   

  	
   

  
	
  Representations and Warranties:

  	
   

  	
  Limited to the following representations and
  warranties, which shall apply to Borrower and its subsidiaries (in each case
  with customary thresholds and exceptions
  to be mutually agreed):

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Accuracy and completeness of financial statements
  (including pro forma financial statements); absence of undisclosed 

  



 









 



 


	
  

  	
   

  	
  liabilities; no material adverse change; corporate
  existence; compliance with law (including, without limitation, any applicable
  rules, regulations and policies of the United States Food and Drug Administration,
  comparable regulatory agencies in Japan and in each country in which the
  products of Borrower and its subsidiaries are marketed); corporate power and
  authority; enforceability of the Bank Documentation; no conflict with law or
  contractual obligations; governmental authorization; no consents; no material
  litigation; no default; ownership of property; intellectual property; taxes;
  Federal Reserve regulations; ERISA; Investment Company Act; subsidiaries and
  equity interests; environmental matters; solvency on a consolidated basis on
  the Closing Date; ownership of property; accuracy and completeness of
  disclosure; Patriot Act and anti-terrorism law compliance; creation and
  perfection of security interests; delivery of documents in connection with
  the Acquisition and accuracy of representations and warranties therein that
  are Acquisition Agreement Representations or Specified Representations; labor
  matters; use of proceeds; insurance; licenses; material contracts; existing
  debt; investments; and subordination of subordinated debt.

  
	
   

  	
   

  	
   

  
	
  Affirmative Covenants:

  	
   

  	
  Limited to the following affirmative covenants,
  which shall apply to Borrower and its subsidiaries (in each case with
  customary thresholds and exceptions to be
  mutually agreed):

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Delivery of certified quarterly (other than with
  respect to the fourth fiscal quarter) and audited annual financial
  statements, reports to shareholders, notices of defaults, material litigation
  and other material events, budgets and other information customarily supplied
  in a transaction of this type; payment of taxes; continuation of business and
  maintenance of existence, properties and material rights and privileges;
  compliance with all applicable laws and regulations (including, without
  limitation, environmental matters, taxation and ERISA) and material
  contractual obligations; maintenance of property and insurance; maintenance
  of books and records; right of the Lenders to inspect property and books and
  records; use of proceeds; further assurances (including, without limitation,
  with respect to security interests in after-acquired property and addition of
  subsidiaries as guarantors); and agreement to establish a currency hedging
  program to cover certain portions of indebtedness of Borrower and its
  subsidiaries to be mutually agreed, on terms reasonably satisfactory to the
  Joint Lead Arrangers.

  
	
   

  	
   

  	
   

  
	
  Negative Covenants:

  	
   

  	
  Limited to the following negative covenants, which
  shall apply to Borrower and its subsidiaries (in each case with customary
  thresholds and exceptions to be mutually
  agreed):

  



 









 



 


	
  

  	
   

  	
  1.                                       Limitation
  on dispositions of assets and changes of business.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  2.                                       Limitation
  on mergers and acquisitions; provided
  that Borrower and its subsidiaries will be permitted to make acquisitions as
  long as (a) there is no default, (b)  Borrower would be in pro
  forma compliance with applicable financial covenants after giving effect
  thereto, (c) the acquired company or assets are in substantially the
  same line of business as Borrower and its subsidiaries, (d) the acquired
  company and its subsidiaries (other than immaterial subsidiaries) will become
  Guarantors and will pledge their Collateral to the Administrative Agent, with
  customary exceptions for adverse tax effects, (e) Borrower and its subsidiaries
  will provide customary documents with respect to such acquisitions to be
  mutually agreed and (f) such acquisitions will be subject to maximum amounts
  to be agreed.  Acquisitions of entities
  that do not become Guarantors will be limited to a maximum aggregate amount
  to be mutually agreed upon.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  3.                                       Limitations
  on dividends, stock repurchases and redemptions and other restricted
  payments, including payments on subordinated debt (with (i) a basket for
  permitted dividends, stock repurchases and redemptions and other restricted
  payments, including payments on subordinated debt, to be mutually agreed and
  subject to growth and (ii) payments on subordinated debt permitted from the
  proceeds of equity issuances and from excess cash flow not required to be used
  to prepay the Bank Facilities to the extent that Borrower will be in pro forma covenant compliance after
  giving effect to any such subordinated debt payment and subject to other
  terms to be mutually agreed).

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  4.                                       Limitation
  on indebtedness (including guarantees and other contingent obligations)
  (provided that subordinated indebtedness incurred to repay Term Loans or
  redeem outstanding convertible securities or in connection with permitted
  acquisitions shall be permitted so long as, after giving effect to such
  indebtedness on a pro forma basis, Borrower is in compliance with applicable
  financial covenants, the subordination of such indebtedness is on terms
  reasonably acceptable to the Joint Lead Arrangers and the maturity of such
  indebtedness does not occur before the maturity of any of the Bank
  Facilities).

  
	
   

  	
   

  	
   

  



 















 


 


	
  

  	
   

  	
  5.                                       Limitation
  on loans and investments (with baskets for permitted investments to be
  mutually agreed and including carve-outs for investments made with the
  proceeds of equity issuances and from excess cash flow not required to be
  used to prepay Term Loans).

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  6.                                       Limitation
  on liens and further negative pledges.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  7.                                       Limitation
  on transactions with affiliates.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  8.                                       Limitation
  on sale and leaseback transactions.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  9.                                       Limitation
  on capital expenditures (with 100% carryforwards for unused amounts available
  for a period to be mutually agreed).

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  10.                                 No
  modification or waiver of material subordinated debt documents in any manner
  materially adverse to the Lenders without the consent of the Requisite
  Lenders.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  11.                                 No change to fiscal
  year.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  12.                                 Limitations
  on restrictions on subsidiaries, accounting changes, anti-terrorism,
  anti-money laundering and embargoed persons.

  
	
   

  	
   

  	
   

  
	
  Financial Covenants:

  	
   

  	
  Limited to the following financial covenants, which
  shall apply to Borrower and its consolidated subsidiaries and with levels and
  definitions to be mutually agreed (provided that covenant levels will be set
  using a cushion to be mutually agreed to the model provided by Borrower to
  the Commitment Parties and approved by the Commitment Parties):

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  1.                                       Minimum
  interest coverage ratio.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  2.                                       Maximum
  total debt to EBITDA ratio.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  3.                                     Maximum senior
  secured debt to EBITDA ratio.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Financial covenants shall be tested for the first
  time at the end of the first full fiscal quarter after the Closing Date, and
  quarterly thereafter.

  
	
   

  	
   

  	
   

  
	
  Events of Default:

  	
   

  	
  Limited to the following events of default (in each
  case with customary grace periods, thresholds and exceptions to be mutually agreed):  nonpayment, breach of representations in
  any material respect, breach of 
  covenants, cross-defaults to material

  



 









 



 


	
  

  	
   

  	
  indebtedness, loss of lien on a material portion of
  collateral, invalidity of guarantees and loan documents, bankruptcy and
  insolvency events, material ERISA events, material judgments, change of
  ownership or control (to be defined in a mutually satisfactory manner) and
  prohibition or restraint on conduct of business that would reasonably be
  expected to result in a material adverse effect.

  
	
   

  	
   

  	
   

  
	
  Assignments and Participations:

  	
   

  	
  Each Lender may assign all or, subject to minimum
  amounts to be mutually agreed, a portion of its loans and commitments under
  one or more of the Facilities to one or more institutions (other than the
  Blacklist).  After the completion of
  primary syndication (as determined by the Commitment Parties), assignments
  will require payment by the assigning or assignee Lenders of an
  administrative fee of $3,500 to the Administrative Agent and the consents of
  the Administrative Agent and Borrower (and in the case of assignments of the
  Revolving Credit Facility, the Issuing Bank and the Swingline Lender), which
  consents shall not be unreasonably withheld or delayed; provided that (i) no consents shall be
  required for an assignment to an existing Lender or an affiliate of an
  existing Lender and (ii) no consent of Borrower shall be required during an
  event of default (by reason of a payment default or a bankruptcy
  default).  In addition, each Lender may
  sell participations in all or a portion of its loans and commitments under
  one or more of the Facilities; provided
  that no purchaser of a participation shall have the right to exercise or to
  cause the selling Lender to exercise voting rights in respect of the
  Facilities (except as to certain basic issues).

  
	
   

  	
   

  	
   

  
	
  Expenses and Indemnification:

  	
   

  	
  All reasonable and documented out-of-pocket expenses
  (including but not limited to reasonable legal fees and expenses (limited to
  one primary counsel and, to the extent necessary, one local counsel in each
  relevant jurisdiction (subject to the need for additional counsel as a result
  of conflicts) and expenses incurred in connection with due diligence and
  travel, courier, reproduction, printing and delivery expenses) of each of the
  Commitment Parties, the Administrative Agent, the Collateral Agent and the
  Issuing Bank associated with the syndication of the Facilities and with the
  preparation, execution and delivery, administration, amendment, waiver or
  modification (including proposed amendments, waivers or modifications) of the
  documentation contemplated hereby are to be paid by Borrower.  In addition, all out-of-pocket expenses
  (including but not limited to reasonable legal fees and expenses) of the
  Lenders and the Administrative Agent for workout proceedings, enforcement
  costs and documentary taxes associated with the Facilities are to be paid by
  Borrower.

  



 









 



 


	
  

  	
   

  	
  The Bank Documentation will contain indemnification
  provisions requiring that Borrower will indemnify the Lenders, each of the
  Commitment Parties, the Administrative Agent, the Collateral Agent and the
  Issuing Bank and their respective affiliates, and hold them harmless from and
  against all reasonable out-of-pocket costs, expenses (including but not
  limited to reasonable legal fees and expenses) and liabilities arising out of
  or relating to the transactions contemplated hereby and any actual or
  proposed use of the proceeds of any loans made under the Facilities; provided, however, that no such person will be indemnified for
  costs, expenses or liabilities to the extent determined by a final,
  non-appealable judgment of a court of competent jurisdiction to have been
  incurred primarily by reason of the gross negligence, bad faith or willful
  misconduct of such person.

  
	
   

  	
   

  	
   

  
	
  Yield Protection, Taxes and

  Other Deductions:

  	
   

  	
  

  The Bank Documentation will contain yield protection provisions, customary
  for Bank Facilities of this nature, protecting the Lenders in the event of
  unavailability of LIBOR, breakage losses, reserve and capital adequacy
  requirements.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  All payments are to be free and clear of any present
  or future taxes, withholdings or other deductions on customary terms (other
  than income taxes in the jurisdiction of the Lender’s applicable lending
  office).  The Lenders will use
  commercially reasonable efforts to minimize to the extent possible any
  applicable taxes and Borrower will indemnify the Lenders and the
  Administrative Agent for such taxes paid by the Lenders and the
  Administrative Agent, as the case may be.

  
	
   

  	
   

  	
   

  
	
  Required Lenders:

  	
   

  	
  Lenders holding at least a majority of total loans
  and commitments under the Facilities, with certain customary amendments
  (subject to customary “yank-a-bank” provisions) requiring the consent of
  Lenders holding a greater percentage (or all) of the total loans and
  commitments under the Facilities, it being understood that amendments to
  financial covenants and related definitions will require the consent of
  Lenders holding no more than a majority of total loans and commitments under the
  Facilities.

  



 









 



 


	
  Governing Law and
  Forum:

  	
   

  	
  The laws of the State of New York.  Each party to the Bank Documentation will
  waive the right to trial by jury and will consent to jurisdiction of the
  state and federal courts located in The City of New York.

  
	
   

  	
   

  	
   

  
	
  Counsel to the Commitment Parties:

  	
   

  	
  Latham & Watkins LLP.

  



 















 


ANNEX II


CONDITIONS TO CLOSING(2)


The commitment of the Lenders under the Commitment
Letter with respect to the Committed Bank Facilities, the agreements of each of
the Commitment Parties to perform the services described in the Commitment
Letter and the funding of the Bank Facilities are subject to the conditions set
forth in the Commitment Letter and satisfaction of each of the conditions
precedent set forth below.


1.             The
Acquisition and the Refinancing shall be consummated substantially
simultaneously with the closing under the Facilities and (with respect to the
Acquisition, to the extent specified in the Acquisition Agreement) shall be
consummated in accordance with applicable law and on the terms described in the
Term Sheet and in the Acquisition Agreement without, in the case of the
Acquisition Agreement, waiver or amendment of any provisions thereof in a
manner material and adverse to the Lenders, unless consented to by the Joint
Bookmanagers (such consent not to be unreasonably withheld or delayed); the
Acquisition Agreement and all other material related documentation (including,
without limitation, any and all proxy statements and other material
documentation related to any required shareholder approvals or consents) shall
be reasonably satisfactory in all material respects to the Administrative Agent
and the Joint Bookmanagers (it being acknowledged that the execution copy of
the Acquisition Agreement dated as of the date hereof and received at 6:51 p.m.
Pacific Time on the date hereof (excluding any and all draft disclosure
schedules) provided to the Administrative Agent and the Joint Bookmanagers is
satisfactory to the Administrative Agent and the Joint Bookmanagers).


2.             The
Commitment Parties shall have received: (i) audited consolidated balance sheets
and related statements of income, stockholders’ equity and cash flows of each
of Borrower and the Acquired Business for each of the last three fiscal years
ending more than 75 days prior to the Closing Date (the “Audited Financial
Statements”), (ii) unaudited consolidated balance sheets and related
statements of income, stockholders’ equity and cash flows of each of Borrower
and the Acquired Business for each fiscal quarter of the current fiscal year
ending more than 30 days prior to the Closing Date and for the comparable
periods of the preceding fiscal year (the “Unaudited Financial Statements”)
(with respect to which the independent auditors shall have performed an SAS 100
review), (iii) unaudited consolidated balance sheets and related
statements of income of each of Borrower and, if made available to Borrower,
the Acquired Business for each fiscal month ending after the last fiscal
quarter covered by the Unaudited Financial Statements and more than 30 days
prior to the Closing Date, (iv) a pro forma consolidated and consolidating
balance sheet and related statement of income for Borrower (the “Pro Forma
Financial Statements”), as well as pro forma levels of capital expenditures
and pro forma levels of EBITDA (“Pro Forma EBITDA”) calculated in a manner
satisfactory to the Commitment Parties, for the last fiscal year covered by the
Audited Financial Statements and for the latest twelve-month period ending more
than 30 days prior to the Closing Date, in each case after giving effect
to the Transactions and (v) forecasts of






(2)                                  All
capitalized terms used but not defined herein shall have the meanings provided
in the Commitment Letter to which this Annex II is attached.









 



the financial performance of Borrower and its
subsidiaries (x) on an annual basis, through 2014 and (y) on a
quarterly basis, through the second quarter of fiscal year 2008 in form
satisfactory to the Commitment Parties. 
The financial statements referred to in clauses (i), (ii) and (iii)
shall be prepared in accordance with accounting principles generally accepted
in the United States.  The Pro Forma
Financial Statements and the Pro Forma EBITDA shall be consistent in all
material respects with the sources and uses described in the Commitment Letter.  The Pro Forma Financial Statements shall be
prepared on a basis consistent with pro forma financial statements set forth in
a registration statement filed with the Securities and Exchange Commission.


3.             To
the extent required by the Acquisition Agreement, all necessary governmental
and material third party approvals in connection with the Transactions shall
have been obtained and shall be in effect. 
Without limiting the foregoing, to the extent required by the
Acquisition Agreement, all requisite shareholder approvals and consents
required by applicable law or the transactional documents with respect to the
Acquisition Agreement and the governing documents of Borrower necessary to
effect the merger contemplated by the Acquisition Agreement shall have been
obtained and shall be in full force and effect.


4.             The
Lenders shall have received such customary legal opinions, officer’s
certificates and closing documentation as the Commitment Parties shall
reasonably request, in form and substance reasonably satisfactory to the
Commitment Parties.


5.             Borrower
and each of the Guarantors shall have provided the documentation and other
information to the Lenders that is required by regulatory authorities under
applicable “know your customer” and anti-money-laundering rules and
regulations, including, without limitation, the Patriot Act, to the extent
requested by any of the Commitment Parties at least one business day prior to
the Closing Date.


6.             All
costs, fees, expenses (including, without limitation, legal fees and expenses
and the fees and expenses of appraisers, consultants and other advisors) and
other compensation payable to the Lenders, the Commitment Parties, the
Administrative Agent or the Collateral Agent shall have been paid to the extent
due and payable by Borrower.


7.             All
of the requirements referred to in the Commitment Letter under “Syndication”
shall have been satisfied by a date sufficient to permit the syndication of the
Bank Facilities to be completed prior to the Closing Date (as determined in the
reasonable discretion of the Commitment Parties).


8.             All
documents and instruments required to perfect the Collateral Agent’s security
interest in the collateral described under the heading “Security” in the Term
Sheet shall have been executed and delivered and, if applicable, be in proper
form for filing, and none of such collateral shall be subject to any other
pledges, security interests or mortgages, except customary permitted liens and
other limited exceptions to be mutually agreed permitted under the Bank
Documentation; provided, however, that, with respect to any such collateral the
security interest in which may not be perfected by filing of a UCC financing
statement or delivery of a physical stock certificate and related stock power
or, in the case of foreign collateral of any foreign co-borrower, making of a
similar filing in a foreign jurisdiction, if the perfection of the Collateral
Agent’s security interest in such collateral may not be accomplished prior to
the Closing Date without undue burden or expense, then delivery of documents and
instruments for









 



perfection of such
security interest shall not constitute a condition precedent to the initial
borrowings under the Bank Facilities if Borrower agrees to deliver or cause to
be delivered such documents and instruments, and take or cause to be taken such
other actions as may be required to perfect such security interests, within a
period after the Closing Date reasonably acceptable to the Administrative
Agent, the Joint Bookmanagers and Borrower.