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Kinetic Concepts Inc – ‘SC TO-C’ on 4/7/08 re: Lifecell Corp – EX-10.1

On:  Monday, 4/7/08, at 4:59pm ET   ·   Accession #:  1193125-8-76377   ·   File #:  5-45509

Previous ‘SC TO-C’:  ‘SC TO-C’ on 4/7/08   ·   Next & Latest:  ‘SC TO-C’ on 4/8/08

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  As Of                Filer                Filing    For·On·As Docs:Size              Issuer               Agent

 4/07/08  Kinetic Concepts Inc              SC TO-C                4:639K Lifecell Corp                     RR Donnelley/FA

Document/Exhibit                   Description                      Pages   Size 

 1: SC TO-C     Form 8-K                                            HTML     30K 
 2: EX-2.1      Agreement and Plan of Merger                        HTML    332K 
 3: EX-10.1     Commitment Letter Dated April 7, 2008               HTML    149K 
 4: EX-99.1     Press Release Dated April 7, 2008                   HTML     32K 

Exhibit 10.1

Project Safari

Commitment Letter

$1,900,000,000 Senior Secured Credit Facilities

Ladies and Gentlemen:

You have advised Bank of America, N.A. (“Bank of America”), Banc of America Securities LLC (“BAS”), JPMorgan Chase Bank, N.A. (“JPMCB”) and J.P. Morgan Securities Inc. (“JPMorgan” and, together with Bank of America, BAS and JPMCB, each a “Commitment Party” and, collectively, the “Commitment Parties”, “us” or “we”) that Kinetic Concepts, Inc., a Texas corporation (the “Company”), intends to acquire, through a newly-formed, wholly-owned direct, Delaware subsidiary of the Company (“AcquisitionCo”), all of the outstanding shares of capital stock of LifeCell Corporation, a Delaware corporation (the “Target”). The acquisition will be effected through a two-step transaction pursuant to which AcquisitionCo will commence a tender offer (the “Tender Offer”) for all of the issued and outstanding shares of capital stock of the Target not owned directly or indirectly by the Company at the time of the commencement of the Tender Offer, followed as promptly as practicable after consummation of the Tender Offer by a merger (the “Merger” and, together with the Tender Offer, the “Acquisition”) of AcquisitionCo with and into the Target, with the Target being the surviving entity in such merger and all shares not tendered in the Tender Offer, subject to dissenters’ rights, being cashed out in the Merger. After giving effect to the Merger, the Target will be a direct, wholly-owned, domestic subsidiary of the Company. The Company, AcquisitionCo and the Target and their respective subsidiaries are sometimes herein collectively referred to as the "Companies".

You have also advised us that you intend to finance the Acquisition (including payments to dissenting stockholders), the costs and expenses related to the Transaction (as hereinafter defined) and the repayment of the Borrower’s indebtedness under its existing revolving credit agreement and the termination of the commitments thereunder (the “Refinancing”), and the ongoing working capital and other general corporate purposes of the Companies after consummation of the Merger from $1,900.00 million in senior secured credit facilities of the Company (collectively, the “Senior Facilities”), comprised of (a) a $1,000.0 million Term A credit facility (the “Term A Facility”), (b) a $600.0 million Term B credit facility (the “Term B Facility” and, together with the Term A Facility, the “Term Facilities”) and (c) a $300.0 million revolving credit facility (the “Revolving Credit Facility”). No financing other than the financing described herein will be required in connection with the Transaction. The entering into and funding of the Senior Facilities, the Tender Offer, the Merger, the Refinancing and all related transactions, other than the transactions and activities contemplated by (x) the Engagement Letter dated the date hereof and (y) the engagement letter for financial advisory services dated April 6, 2008 between the Company and JPMorgan are hereinafter collectively referred to as the “Transaction”. The sources and uses of funds for financing the Transaction are as set forth on Schedule 1 hereto.

1. Commitments. In connection with the foregoing, each of Bank of America and JPMCB (each an “Initial Lender” and collectively the “Initial Lenders”) is pleased to advise you of its several, but not joint, commitment to provide, upon and subject to the terms set forth in this letter agreement and the Summary of Principal Terms and Conditions attached as Annex I hereto (the “Term

Commitment Letter

Sheet”) and the conditions specified or referred to in (i) numbered Section 2 of this letter agreement and (ii) the Conditions Precedent attached as Annex II hereto (collectively, the “Summary of Terms” and, together with this letter agreement, the “Commitment Letter”), 50.0% of the aggregate principal amount of the Senior Facilities.

Bank of America is pleased to advise you of its willingness to act as the sole and exclusive administrative agent (in such capacity the “Administrative Agent”) for the Senior Facilities. BAS and JPMorgan are pleased to advise you of their willingness, as joint lead arrangers and joint book running managers (in such capacities, the “Lead Arrangers”) for the Senior Facilities (it being understood that BAS shall appear on the “left” in any Information Memorandum or other offering materials in connection with the Senior Facilities), to form a syndicate of financial institutions and institutional lenders reasonably acceptable to you (collectively, the “Lenders”) for the Senior Facilities, including the Initial Lenders. In addition, JPMCB is pleased to advise you of its willingness to act as the sole and exclusive syndication agent (in such capacity the “Syndication Agent”) for the Senior Facilities, and it will perform the duties and exercise the authority customarily performed by it in such role.

All capitalized terms used and not otherwise defined herein shall have the same meanings as specified therefor in the Summary of Terms. The date of the initial funding under the Senior Facilities is referred to herein as the “Closing Date”, and the consummation of such initial funding is referred to herein as the “Closing”.

2. Conditions to Financing. The commitments and undertakings of the Commitment Parties herein to fund the initial loans under the Senior Facilities are subject to (i) the satisfaction of the conditions precedent set forth in Annex II hereto and (ii) your acceptance of the separate confidential fee letter addressed to you dated the date hereof from the Commitment Parties (the “Fee Letter”), and you shall have performed all of your obligations set forth therein which are required to be performed on or prior to the Closing Date and complied with your obligations set forth in paragraphs 3 and 4 and the confidentiality provisions of this Commitment Letter; and (iii) except as otherwise agreed by the Lead Arrangers, after the date hereof and until the date on which we shall have completed a “Successful Syndication” (as defined in the Fee Letter) of the Senior Facilities, there shall be no offering, placement or arrangement of any debt or equity securities or bank financing by or on behalf of any of the Companies that could reasonably be expected to compete with the syndication of, and materially disrupt or materially interfere with, the orderly syndication of the Senior Facilities.

3. Syndication. The Lead Arrangers shall commence syndication, in consultation with you, of each of the Senior Facilities promptly after your acceptance of the terms of this Commitment Letter and the Fee Letter and announcement of the Transaction; provided, however, that the respective Commitments of the Commitment Parties are not subject to a “Successful Syndication” (as defined in the Fee Letter) or any other syndication of the Senior Facilities prior to the Closing Date; and provided, further, that notwithstanding the Lead Arrangers’ right to syndicate the Senior Facilities and receive commitments with respect thereto, it is understood that any syndication of, or receipt of commitments in respect of, all or any portion of any Commitment Party’s respective commitment hereunder prior to the initial funding of the Senior Facilities shall not reduce any Commitment Party’s respective commitment hereunder. You agree to assist actively, and to use your commercially reasonable efforts to cause the Target to assist actively, the Lead Arrangers in achieving a syndication of each Senior Facility that is reasonably satisfactory to the Lead Arrangers and you. Such assistance shall include (a) your providing and causing your advisors to provide, and using your commercially reasonable efforts to cause the Target and its advisors to provide, the Lead Arrangers and the Initial Lenders upon request with all information reasonably deemed necessary by the Lead Arrangers to complete such syndication, including, but not limited to, information, evaluations and projections prepared by you and your advisors on your behalf, or as may be reasonably requested by the Lead Arrangers, relating to the Transaction, (b) your assistance in the preparation of Information Memoranda to be used in connection with the syndication of the Senior Facilities (collectively with the Summary of Terms and any additional summary of terms prepared for distribution to Public Lenders (as hereinafter defined), the “Information Materials”), (c) using your commercially reasonable efforts to ensure that the syndication efforts of the Lead Arrangers benefit materially from your existing lending relationships and, to the extent practicable and appropriate, the existing banking relationships of the Target, (d) procuring ratings for the Senior Facilities from each of

Commitment Letter

2

Standard & Poor’s, a division of The McGraw-Hill Companies, Inc. (“S&P”), and Moody’s Investors Service Inc. (“Moody’s”) not more than 10 business days after the date on which the first public announcement of the Transaction is made and (e) otherwise assisting the Lead Arrangers in their syndication efforts, including by making your senior officers and advisors, and using your commercially reasonable efforts to make the senior officers and advisors of the Target, available to attend and to assist the Lead Arrangers in making presentations regarding your and the Target’s business and prospects at one or more meetings of prospective Lenders at such times and locations as are reasonably requested by the Lead Arrangers. You hereby agree that the Information Memoranda to be used in connection with the syndication of the Senior Facilities shall be completed not later than 5:00 PM (New York City time) on the date which is three days following the announcement of the Transaction.

It is understood and agreed that the Lead Arrangers, in consultation with you, will manage and control all aspects of the syndication of the Senior Facilities, including decisions as to the selection of prospective Lenders and any titles offered to proposed Lenders, when commitments will be accepted, the final allocations of the commitments among the Lenders, selecting counsel for the Lenders and negotiating the definitive documentation for the Senior Facilities. It is understood that no Lender participating in the Senior Facilities will receive compensation from you in order to obtain its commitment, except on the terms contained herein and in the Summary of Terms. You agree that no other agents, co-agents or arrangers will be appointed and no other titles awarded, in each case in connection with the Senior Facilities, unless otherwise agreed by you and the Lead Arrangers. It is also understood and agreed that the amount and distribution of the fees among the Lenders will be at the sole and absolute discretion of the Lead Arrangers.

4. Information Requirements. You hereby represent, warrant and covenant that (a) all financial information and projections (including financial estimates, forecasts and other forward looking information (the “Projections”)) concerning the Companies that have been or are hereafter made available to the Lead Arrangers or any of the Lenders by you or any of your representatives have been or will be prepared in good faith based upon assumptions believed by you to be reasonable at the time prepared, it being understood and acknowledged that such Projections are not to be viewed as facts and are subject to significant uncertainties and contingencies, many of which are beyond your control, that no assurance can be given that any particular projections will be realized, that actual results may differ and such differences may be material and (b) all information, other than Projections and information of a general economic nature (the “Information”), that has been or is hereafter made available to the Lead Arrangers or any of the Lenders by you or any of your representatives or, to the best of your knowledge, by any of the other Companies or any of their representatives in connection with any aspect of the Transaction, as and when furnished (and taken as a whole), is and will be correct in all material respects and does not and will not when furnished (and taken as a whole) contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein not materially misleading in light of the circumstances under which such statements are made. You agree that if at any time prior to the Closing Date, to your knowledge, the representation, warranty and covenant in the immediately preceding sentence would not be true if the Information were being furnished, and such representation, warranty and covenant were being made at such time, then you will promptly supplement the Information so that such representation, warranty and covenant would be true to your knowledge in all material respects under those circumstances. In issuing their respective commitments and in arranging and syndicating each of the Senior Facilities, you recognize and confirm that each of the Commitment Parties (i) is and will be using and relying on the Information and the Projections without independent verification thereof, (ii) does not assume responsibility for the accuracy or completeness of the Information or the Projections and such other information and (iii) will not make an appraisal of any assets or liabilities of any of the Companies. The Information and Projections provided to the Lead Arrangers prior to the date hereof are hereinafter referred to as the "Pre-Commitment Information".

You acknowledge that (a) the Commitment Parties on your behalf will make available Information Materials to the proposed syndicates of Lenders by posting the Information Materials on IntraLinks or another similar electronic system and (b) certain prospective Lenders (such Lenders, “Public Lenders”; all other Lenders, “Private Lenders”) may have personnel that do not wish to receive material non-public information (within the meaning of the United States federal securities laws, “MNPI”) with respect to the Companies, their respective affiliates or any other entity, or the respective securities of

Commitment Letter

3

any of the foregoing, and who may be engaged in investment and other market-related activities with respect to the Companies’ securities. If requested, you will assist us in preparing an additional version of the Information Materials not containing MNPI (the “Public Information Materials”) to be distributed to prospective Public Lenders. The term “affiliate” as used herein means, with respect to any party, any entity directly or indirectly controlled, controlling or under common control with such party.

Before distribution of (a) Information Materials to prospective Private Lenders, you shall provide us with a customary letter authorizing the dissemination of the Information Materials and (b) the Public Information Materials to prospective Public Lenders, you shall provide us with a customary letter authorizing the dissemination of the Public Information Materials and confirming the absence of MNPI therefrom. In addition, at our request, you shall identify Public Information Materials by clearly and conspicuously marking the same as “PUBLIC”.

You agree that the Commitment Parties on your behalf may distribute the following documents to all prospective Lenders, unless you advise the Commitment Parties in writing (including by email) within a reasonable time prior to their intended distributions that such material should only be distributed to prospective Private Lenders: (a) administrative materials for prospective Lenders such as lender meeting invitations and funding and closing memoranda, (b) notifications of changes to the Senior Facilities’ terms and (c) other materials intended for prospective Public Lenders after the initial distribution of the Information Materials, including drafts and final versions of definitive documents with respect to the Senior Facilities; provided, that you will be given a reasonable amount of time to review the items described in (a), (b) and (c) (to the extent such items contain information relating to any of the Companies but were not prepared by the Company) to determine whether such items contain MNPI. If you advise us that any of the foregoing items should be distributed only to Private Lenders, then the Commitment Parties will not distribute such materials to Public Lenders without further discussions with you.

5. Fees and Indemnities. By executing this Commitment Letter, you agree to reimburse the Commitment Parties from time to time on demand for all reasonable out-of-pocket fees and expenses (including, but not limited to, (a) the reasonable and documented fees, disbursements and other charges of counsel to the Lead Arrangers and the Administrative Agent, and of any reasonably necessary special and local counsel to the Lenders retained by or on behalf of the Lead Arrangers or the Administrative Agent and (b) reasonable due diligence expenses) incurred in connection with the Senior Facilities, the syndication thereof and the preparation of the Commitment Letter and the definitive documentation therefor, and with any other aspect of the Transaction, whether or not definitive documentation is executed or delivered or the Transaction is consummated.

You also agree to indemnify and hold harmless each Commitment Party and 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 and documented 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 aspect of the Transaction or (b) the Senior Facilities and any other financings, or any use made or proposed to be made with the proceeds thereof IN ALL CASES WHETHER OR NOT CAUSED OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF THE INDEMNIFIED PARTY, 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, bad faith, willful misconduct or the material breach of this Commitment Letter by such Indemnified Party; provided that you shall not be required to reimburse the reasonable and documented legal fees and expenses of more than one outside counsel (in addition to any reasonably necessary special counsel and up to one local counsel in each applicable local jurisdiction) for all Indemnified Parties unless, in the written opinion of outside counsel reasonably satisfactory to you and the Lead Arrangers, representation of all such Indemnified Parties would be inappropriate due to the existence of an actual or potential conflict of interest. In the case of an investigation, litigation or proceeding to which the indemnity in this paragraph applies, such indemnity

Commitment Letter

4

shall be effective whether or not such investigation, litigation or proceeding is brought by you, your equityholders or creditors or an Indemnified Party, whether or not an Indemnified Party is otherwise a party thereto and whether or not any aspect of the Transaction is 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 arising out of, related to or in connection with any aspect of the Transaction, 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, bad faith, willful misconduct or material breach of this Commitment Letter by such Indemnified Party. 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, other than for direct or actual damages resulting from the gross negligence, bad faith or willful misconduct or such Indemnified Party as determined by a final and nonappealable judgment of a court of competent jurisdiction.

6. Confidentiality and Other Obligations. This Commitment Letter and the Fee Letter and the contents hereof and thereof are confidential and, except for the disclosure hereof or thereof on a confidential basis your officers, directors, employees, accountants, attorneys and other professional advisors retained in connection with the Transaction on a need to know basis, 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) and, solely in the case of the following clauses (c), (d) and (e), the Fee Letter or the contents thereof (a) on a confidential basis to the Target and its board of directors, officers, employees, attorneys and advisors in connection with their consideration of the Transaction, (b) after your acceptance of this Commitment Letter and the Fee Letter, in filings with the Securities and Exchange Commission and other applicable regulatory authorities, stock exchanges and rating agencies and summary descriptions thereof as is reasonably agreed by the Lead Arrangers and you in any offering memorandums related to the Transaction, (c) after using commercially reasonable efforts to provide written notice to the Lead Arrangers of any legally required disclosure (to the extent permitted by law), as otherwise required by law, (d) pursuant to the order of any court or administrative agency or in any legal or administrative proceeding or otherwise as required by applicable law or regulations or by any subpoena or similar legal process (in which case you shall use your commercially reasonable efforts to promptly notify the Lead Arrangers and the Initial Lenders thereof to the extent lawfully permitted to do so), (e) to any regulatory authority (including any self-regulatory organization claiming to have jurisdiction) having jurisdiction over the Companies or their respective affiliates (in which case you shall promptly notify the Lead Arrangers and the Initial Lenders thereof to the extent lawfully permitted to do so prior to such disclosure), (f) to rating agencies, (g) in connection with the exercise of any remedies under this Commitment Letter or any related documents or the enforcement of rights hereunder or thereunder and (h) with our consent; provided that it is understood that you may make a public announcement of the Transaction and disclose the existence of the Commitments and the identity and roles of the Lead Arrangers and the Initial Lenders.

Each of the Commitment Parties hereby notifies you that, pursuant to the requirements of the USA Patriot Act, Title III of Pub. L. 107-56 (signed into law October 26, 2001), as amended, each of them may be required to obtain, verify and record information that identifies you, which information includes your name and address and other information that will allow such Commitment Party as applicable, to identify you in accordance with such Act.

You acknowledge that each of the Commitment Parties or their affiliates may be providing financing or other services to parties whose interests may conflict with yours. Each Commitment Party agrees that neither it nor any of its affiliates will furnish confidential information obtained from you to any of such Commitment Party’s or any of such Commitment Party’s affiliates’ other customers, and such Commitment Party and its affiliates will treat confidential information relating to you, the other Companies and your and their respective affiliates with the same degree of care as they treat their own confidential information. Each Commitment Party further advises you that it will not make available to you confidential information that it has obtained or may obtain from any other customer. In connection with the services and transactions contemplated hereby, you agree that each Commitment

Commitment Letter

5

Party is permitted to access, use and share with any of its bank or non-bank affiliates, agents, advisors (legal or otherwise) or representatives, any information concerning you, the Companies or any of your or its respective affiliates that is or may come into the possession of such Commitment Party or any of such affiliates, subject in all cases to any applicable confidentiality undertakings between the Company and any of the Commitment Parties.

In connection with all aspects of each transaction contemplated by the Commitment Letter, you acknowledge and agree, and acknowledge your affiliates’ understanding, that: (a) (i) the arranging and other services described herein regarding the Senior Facilities are arm’s-length commercial transactions between you and your affiliates, on the one hand, and the Commitment Parties, on the other hand, (ii) you have consulted your own legal, accounting, regulatory and tax advisors to the extent you have deemed appropriate and (iii) you are capable of evaluating, and understanding and understand and accept, the terms, risks and conditions of the transactions contemplated hereby; (b) (i) each Commitment Party has been, is and will be acting solely as a principal and, except as otherwise expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary, for you or any of your subsidiaries and (ii) none of the Commitment Parties has any obligation to you or your subsidiaries with respect to the transactions contemplated hereby except those obligations expressly set forth herein or as otherwise agreed in writing by the relevant parties; and (c) the Commitment Parties and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from yours and those of your affiliates, and the Commitment Parties have no obligation to disclose any of such interests to you or your affiliates. To the fullest extent permitted by law, you hereby waive and release any claims that you may have against the Commitment Parties with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated by this Commitment Letter (provided, however, the foregoing shall not be deemed to have waived or released any claims that you may have against any Commitment Party in connection with any agency or fiduciary duty arising from any separate advisory agreement between you and any Commitment Party).

7. Survival of Obligations. The provisions of numbered paragraphs 3, 4, 5 and 6 shall remain in full force and effect regardless of whether any definitive documentation for the Senior Facilities shall be executed and delivered and notwithstanding the termination of this Commitment Letter or any commitment or undertaking of any Commitment Party hereunder; provided, however, that your obligations under the first paragraph of numbered paragraph 4 and paragraphs 5 and 6 of this Commitment Letter shall automatically terminate and be superseded by the provisions of definitive loan documentation for the Senior Facilities upon the initial funding thereunder, and you shall automatically be released from all liability hereunder at such time.

8. Miscellaneous. This Commitment Letter and the Fee Letter may be executed in counterparts which, taken together, shall constitute one original. Delivery of an executed counterpart of a signature page to this Commitment Letter or the Fee Letter by telecopier or by “.pdf” or similar electronic transmission 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 INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES. Each of you and each of the Commitment Parties hereby irrevocably waives all right to trial by jury in any action, proceeding or counterclaim (whether based in contract, tort or otherwise) arising out of or relating to this Commitment Letter (including, without limitation, the Summary of Terms), the Fee Letter, the Transaction and the other transactions contemplated hereby and thereby or the actions of each of the Commitment Parties in the negotiation, performance, administration or enforcement hereof. Each of you and the Commitment Parties hereby irrevocably submits to the non-exclusive jurisdiction of any New York State court or Federal court sitting in the Borough of Manhattan in New York City in respect of any suit, action or proceeding arising out of or relating to the provisions of this Commitment Letter (including, without limitation, the Summary of Terms), the Fee Letter, the Transaction and the other transactions contemplated hereby and thereby and irrevocably agrees that all claims in respect of any such suit, action or proceeding, to the fullest extent permitted under applicable law, may be heard and determined in any

Commitment Letter

6

such court. Each of you and the Commitment Parties waives, to the fullest extent permitted by applicable law, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceedings brought in any such court, and any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.

This Commitment Letter, together with the Summary of Terms and the Fee Letter embody the entire agreement and understanding among each of the Commitment Parties and you with respect to the Senior Facilities and supersedes all prior agreements and understandings relating to the subject matters hereof. Those matters that are not covered or made clear herein or in the Summary of Terms or the Fee Letter are subject to mutual written agreement of the parties.

Subject to the first sentence of numbered section 3, prior to the Closing Date this Commitment Letter is assignable by us. This Commitment Letter is not assignable by you without our prior written consent and is intended to be solely for the benefit of the parties hereto, their permitted assignees and the Indemnified Parties. Nothing herein, express or implied, is intended to confer, shall be construed to confer, or shall confer, upon the Target, any of its subsidiaries, affiliates, shareholders or creditors or any other person (other than the Indemnified parties) not a named party hereto any legal or equitable right, benefit, standing or remedy of any nature whatsoever under or by reason of this Commitment Letter.

Each of the Commitment Parties reserves the right to employ the services of its affiliates in providing services contemplated by this Commitment Letter and to allocate, in whole or in part, to its affiliates certain fees payable to it in such manner as it and its affiliates may agree in their sole discretion. You also agree that each Initial Lender may at any time and from time to time assign all or any portion of its commitment hereunder to one or more of its affiliates subject to the limitations set forth in this Commitment Letter (including, without limitation, the Summary of Terms).

All amounts payable under this Commitment Letter will be made in U.S. dollars and, in any case, shall not be subject to counterclaim or set-off for, or be otherwise affected by, any claim or dispute relating to any other matter. In addition, all such payments shall be made without deduction for any taxes, levies, imposts, duties, deductions, charges or withholdings imposed by any national, state or provincial taxing authority, or will be grossed up by you for such amounts.

All respective commitments and undertakings of the Commitment Parties hereunder with respect to the Senior Facilities will expire at 5:00 p.m. (New York City time) on April 7, 2008, unless you execute this Commitment Letter as provided below and the Fee Letter as provided therein to accept such commitments and return both of them to us prior to that time, whereupon this Commitment Letter and the Fee Letter shall become binding agreements. Thereafter, all accepted commitments and undertakings of the Commitment Parties hereunder will expire on the earliest of (a) August 1, 2008 unless the Closing Date occurs on or prior thereto, (b) the closing of the Tender Offer or the Merger without the use of the Senior Facilities and (c) the acceptance by the Target of a Superior Proposal (as defined in the Merger Agreement) resulting in a termination of the Merger Agreement (any such date being herein referred to as the “Termination Date”). You agree that, in consideration of the time and resources that the Commitment Parties will devote to the Senior Facilities, until such expiration, you will not, you will cause your subsidiaries not to, and you will use commercially reasonable efforts to cause the other Companies and their subsidiaries not to, solicit or initiate any discussions in respect of, any offering, placement or arrangement of any competing senior credit facilities for the Company and its subsidiaries with respect to the matters addressed in this letter. “Merger Agreement” has the meaning set forth in Annex II hereto.

THIS WRITTEN AGREEMENT (WHICH INCLUDES THE SUMMARY OF TERMS) AND THE FEE LETTER REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.

Commitment Letter

7

We are pleased to have the opportunity to work with you in connection with this important financing.

[The remainder of this page intentionally left blank.]

Commitment Letter

8

Commitment Letter

9

SOURCES AND USES OF FUNDS

(all amounts $ millions)

Commitment Letter

10

ANNEX I

SUMMARY OF PRINCIPAL TERMS AND CONDITIONS

$1,900,000,000 SENIOR FACILITIES

Capitalized terms not otherwise defined herein have the same meanings as

specified in the commitment letter (the “Commitment Letter”) to which this Annex I is attached.

Page 1

Commitment Letter - Annex I

Page 2

Commitment Letter - Annex I

Page 3

Commitment Letter - Annex I

Page 4

Commitment Letter - Annex I

Page 5

Commitment Letter - Annex I

Page 6

Commitment Letter - Annex I

Page 7

Commitment Letter - Annex I

Page 8

Commitment Letter - Annex I

Page 9

Commitment Letter - Annex I

Page 10

Commitment Letter - Annex I

Page 11

Commitment Letter - Annex I

ADDENDUM I TO ANNEX I

PRICING, FEES AND EXPENSES

$1,900,000,000 SENIOR FACILITIES

Page 1

Commitment Letter - Addendum I to Annex I

Page 2

Commitment Letter - Addendum I to Annex I

ANNEX II

CONDITIONS PRECEDENT

$1,900,000,000 SENIOR FACILITIES

Capitalized terms not otherwise defined herein have the same meanings as

specified in the Commitment Letter to which this Annex II is attached.

Commitment Letter - Annex II

Page 2

Commitment Letter - Annex II

Page 3

Commitment Letter - Annex II

Page 4

Commitment Letter - Annex II

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Dates Referenced Herein   and   Documents Incorporated by Reference

This ‘SC TO-C’ Filing		Date		Other Filings
		12/31/08		10-K,  4,  5,  8-K
		8/1/08		4,  8-K
Filed on:		4/7/08		4,  8-K,  SC 14D9,  SC TO-C
		4/6/08
		11/1/07		4
		10/26/01
				List all Filings

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Filing Submission 0001193125-08-076377   –   Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)

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