EX-10.90






Exhibit 10.90




EXECUTION COPY




 





TERM LOAN CREDIT AGREEMENT




Dated as of




December 29, 2008,




among




KING PHARMACEUTICALS, INC.,

as Borrower,




THE LENDERS PARTY HERETO




and




CREDIT SUISSE,

as Administrative Agent and as Collateral Agent




 






CREDIT SUISSE SECURITIES (USA) LLC




and




WACHOVIA CAPITAL MARKETS, LLC,

as Joint Bookrunners and Joint Lead Arrangers,




WACHOVIA BANK, NATIONAL ASSOCIATION,




and




SUNTRUST BANK

as Co-Syndication Agents




DNB FIRST BANK




and




U.S. BANK NATIONAL ASSOCIATION

as Co-Documentation Agents,




DZ BANK AG, DEUTSCHE ZENTRAL-GENOSSENSCHAFTSBANK, NEW 

YORK BRANCH,

SIEMENS FINANCIAL SERVICES, INC,




THE PRIVATEBANK AND TRUST COMPANY




and




UNION BANK, N.A.

as Senior Managing Agents




 






 









 








TABLE
OF CONTENTS




Page




ARTICLE 1

Definitions




	 	 	 	 	 
	Section 1.01. Defined Terms
	 	 	2	 
	Section 1.02. Terms Generally
	 	 	28	 
	Section 1.03. Pro Forma Calculations
	 	 	29	 






ARTICLE 2

The Credits




	 	 	 	 	 
	Section 2.01. Commitments
	 	 	29	 
	Section 2.02. Loans
	 	 	29	 
	Section 2.03. Borrowing Procedure
	 	 	31	 
	Section 2.04. Evidence of Debt; Repayment of Loans
	 	 	31	 
	Section 2.05. Fees
	 	 	32	 
	Section 2.06. Interest on Loans
	 	 	33	 
	Section 2.07. Default Interest
	 	 	33	 
	Section 2.08. Alternate Rate of Interest
	 	 	33	 
	Section 2.09. Termination and Reduction of Commitments
	 	 	34	 
	Section 2.10. Conversion and Continuation of Borrowings
	 	 	34	 
	Section 2.11. Repayment of Borrowings
	 	 	36	 
	Section 2.12. Voluntary Prepayment
	 	 	37	 
	Section 2.13. Mandatory Prepayments
	 	 	38	 
	Section 2.14. Reserve Requirements; Change in Circumstances
	 	 	39	 
	Section 2.15. Change in Legality
	 	 	41	 
	Section 2.16. Breakage
	 	 	41	 
	Section 2.17. Pro Rata Treatment
	 	 	42	 
	Section 2.18. Sharing of Setoffs
	 	 	42	 
	Section 2.19. Payments
	 	 	43	 
	Section 2.20. Taxes
	 	 	44	 
	Section 2.21. Assignment of Commitments Under Certain Circumstances; Duty to Mitigate

	 	 	45	 






ARTICLE 3

Representations and Warranties




	 	 	 	 	 
	Section 3.01. Organization; Powers
	 	 	47	 
	Section 3.02. Authorization
	 	 	47	 
	Section 3.03. Enforceability
	 	 	47	 






i









 






	 	 	 	 	 
	Section 3.04. Governmental Approvals
	 	 	47	 
	Section 3.05. Financial Statements
	 	 	48	 
	Section 3.06. No Material Adverse Change
	 	 	49	 
	Section 3.07. Title to Properties; Possession Under Leases
	 	 	49	 
	Section 3.08. Subsidiaries
	 	 	50	 
	Section 3.09. Litigation; Compliance with Laws
	 	 	50	 
	Section 3.10. Agreements
	 	 	51	 
	Section 3.11. Federal Reserve Regulations
	 	 	51	 
	Section 3.12. Investment Company Act
	 	 	51	 
	Section 3.13. Use of Proceeds
	 	 	51	 
	Section 3.14. Tax Returns
	 	 	51	 
	Section 3.15. No Material Misstatements
	 	 	51	 
	Section 3.16. Employee Benefit Plans
	 	 	52	 
	Section 3.17. Environmental Matters
	 	 	52	 
	Section 3.18. Insurance
	 	 	53	 
	Section 3.19. Security Documents
	 	 	53	 
	Section 3.20. Location of Real Property and Leased Premises
	 	 	54	 
	Section 3.21. Labor Matters
	 	 	55	 
	Section 3.22. Solvency
	 	 	55	 
	Section 3.23. Transaction Documents
	 	 	55	 
	Section 3.24. Sanctioned Persons
	 	 	56	 






ARTICLE 4

Conditions of Lending




	 	 	 	 	 
	Section 4.01. All Credit Events
	 	 	56	 
	Section 4.02. First Credit Event
	 	 	57	 
	Section 4.03. Conditions to Merger Borrowing Credit Events
	 	 	61	 






ARTICLE 5

Affirmative Covenants




	 	 	 	 	 
	Section 5.01. Existence; Compliance with Laws; Businesses and Properties
	 	 	62	 
	Section 5.02. Insurance
	 	 	63	 
	Section 5.03. Obligations and Taxes
	 	 	64	 
	Section 5.04. Financial Statements, Reports, etc
	 	 	65	 
	Section 5.05. Litigation and Other Notices
	 	 	67	 
	Section 5.06. Information Regarding Collateral
	 	 	67	 
	Section 5.07. Maintaining Records; Access to Properties and Inspections; Maintenance of
Ratings
	 	 	68	 
	Section 5.08. Use of Proceeds
	 	 	68	 
	Section 5.09. Employee Benefits
	 	 	68	 
	Section 5.10. Compliance with Environmental Laws
	 	 	68	 
	Section 5.11. Preparation of Environmental Reports
	 	 	69	 
	Section 5.12. Compliance with Laws
	 	 	69	 
	Section 5.13. Further Assurances
	 	 	69	 
	Section 5.14. Interest Rate Protection
	 	 	71	 






ii









 






	 	 	 	 	 
	Section 5.15. Consummation of the Merger
	 	 	71	 
	Section 5.16. Alpharma Escrow Account
	 	 	71	 






ARTICLE 6

Negative Covenants




	 	 	 	 	 
	Section 6.01. Indebtedness
	 	 	72	 
	Section 6.02. Liens
	 	 	74	 
	Section 6.03. Sale and Leaseback Transactions
	 	 	76	 
	Section 6.04. Investments, Loans and Advances
	 	 	76	 
	Section 6.05. Mergers, Consolidations, Sales of Assets and Acquisitions
	 	 	79	 
	Section 6.06. Restricted Payments; Restrictive Agreements
	 	 	80	 
	Section 6.07. Transactions with Affiliates
	 	 	80	 
	Section 6.08. Business of Borrower and Subsidiaries
	 	 	81	 
	Section 6.09. Other Indebtedness and Agreements
	 	 	81	 
	Section 6.10. Capital Expenditures
	 	 	82	 
	Section 6.11. Consolidated Interest Expense Coverage Ratio
	 	 	82	 
	Section 6.12. Maximum Leverage Ratio
	 	 	83	 
	Section 6.13. Fiscal Year
	 	 	84	 
	Section 6.14. Certain Equity Securities
	 	 	84	 






ARTICLE 7

Events of Default




ARTICLE 8

The Administrative Agent and the Collateral Agent; Etc.




ARTICLE 9

Miscellaneous




	 	 	 	 	 
	Section 9.01. Notices; Electronic Communications
	 	 	91	 
	Section 9.02. Survival of Agreement
	 	 	94	 
	Section 9.03. Binding Effect
	 	 	94	 
	Section 9.04. Successors and Assigns
	 	 	94	 
	Section 9.05. Expenses; Indemnity
	 	 	98	 
	Section 9.06. Right of Setoff
	 	 	100	 
	Section 9.07. Applicable Law
	 	 	100	 
	Section 9.08. Waivers; Amendment
	 	 	100	 
	Section 9.09. Interest Rate Limitation
	 	 	102	 
	Section 9.10. Entire Agreement
	 	 	102	 
	Section 9.11. WAIVER OF JURY TRIAL
	 	 	102	 
	Section 9.12. Severability
	 	 	103	 
	Section 9.13. Counterparts
	 	 	103	 
	Section 9.14. Headings
	 	 	103	 
	Section 9.15. Jurisdiction; Consent to Service of Process
	 	 	103	 






iii









 






	 	 	 	 	 
	Section 9.16. Confidentiality
	 	 	104	 
	Section 9.17. Lender Action
	 	 	105	 
	Section 9.18. Patriot Act
	 	 	105	 
	Section 9.19. No Fiduciary Duty
	 	 	105	 






SCHEDULES




	 	 	 	 	 
	Schedule 1.01(b)

	 	-
	 	Subsidiary Guarantors
	Schedule 1.01(c)

	 	-
	 	Mortgaged Property
	Schedule 2.01

	 	-
	 	Lenders and Commitments
	Schedule 3.08

	 	-
	 	Subsidiaries
	Schedule 3.09

	 	-
	 	Litigation
	Schedule 3.17

	 	-
	 	Environmental Matters
	Schedule 3.18

	 	-
	 	Insurance
	Schedule 3.19(a)

	 	-
	 	UCC Filing Offices
	Schedule 3.19(c)

	 	-
	 	Mortgage Filing Offices
	Schedule 3.20(a)

	 	-
	 	Owned Real Property
	Schedule 3.20(b)

	 	-
	 	Leased Real Property
	Schedule 4.02(b)

	 	-
	 	Local Counsel
	Schedule 6.01

	 	-
	 	Existing Indebtedness
	Schedule 6.02

	 	-
	 	Existing Liens
	Schedule 6.04(a)

	 	-
	 	Existing Investments






EXHIBITS




	 	 	 	 	 
	Exhibit A

	 	-
	 	Form of Administrative Questionnaire
	Exhibit B

	 	-
	 	Form of Assignment and Acceptance
	Exhibit C

	 	-
	 	Form of Borrowing Request
	Exhibit D

	 	-
	 	Form of Guarantee and Collateral Agreement
	Exhibit E

	 	-
	 	Form of Mortgage
	Exhibit F

	 	-
	 	Form of Affiliate Subordination Agreement
	Exhibit G-1

	 	-
	 	Form of Opinion of Dewey & LeBoeuf LLP
	Exhibit G-2

	 	-
	 	Form of Local Counsel Opinion
	Exhibit H

	 	-
	 	Form of Compliance Certificate






iv









 





     TERM LOAN CREDIT AGREEMENT dated as of December 29, 2008 (as amended, supplemented or
otherwise modified from time to time, this “Agreement”) among KING PHARMACEUTICALS, INC., a
Tennessee corporation (the “Borrower”), the Lenders (such term and each other capitalized
term used but not defined in this introductory statement having the meaning given it in Article 1),
and CREDIT SUISSE, as administrative agent (in such capacity, including any successor thereto, the
“Administrative Agent”) and as collateral agent (in such capacity, including any successor
thereto, the “Collateral Agent”) for the Lenders.



PRELIMINARY STATEMENTS:




     Pursuant to the Merger Agreement, the Borrower intends to acquire (the “Acquisition”)
all of the Shares pursuant to a two-step transaction in which (a) Merger Sub will acquire pursuant
to the Tender Offer, for a purchase price of $37 per share in cash, those Shares that have been
validly tendered and not withdrawn and accepted for payment pursuant to the Tender Offer (the
“Tender Consideration”) and (b) on the Merger Date and in accordance with the Merger
Agreement, Merger Sub will be merged with and into the Target with the Target being the surviving
corporation (the “Merger”), and pursuant to the Merger each Share not acquired in the
Tender Offer will be converted into the right to receive $37 in cash pursuant to, and subject to
the provisions of, the Merger Agreement (the “Merger Consideration”).



     In connection with the foregoing, the Borrower has requested the Lenders to extend credit in
the form of term Loans during the Availability Period in an aggregate principal amount not in
excess of $200,000,000. The proceeds of the Loans are to be used solely (a) to enable Merger Sub
to pay the Tender Consideration in respect of those Shares that have been validly tendered and not
withdrawn in the Tender Offer and that have been accepted for payment on the Closing Date, the
Tender Consideration in respect of those additional Shares that are validly tendered and not
withdrawn in a subsequent offering period pursuant to the Tender Offer, and the Merger
Consideration on or immediately after the effective date of the Merger and to pay the appraised
value of any Shares held by holders who have properly perfected rights to appraisal in accordance
with Section 262 of the Delaware General Corporation Law (together, the “Acquisition
Consideration”) and (b) to pay fees and expenses incurred in connection with the foregoing.



     The Lenders have agreed to extend such credit on the terms and subject to the conditions set
forth herein. Accordingly, the parties hereto hereby agree as follows:



 









 





ARTICLE 1

Definitions




     Section 1.01. Defined Terms. As used in this Agreement, the following terms shall have the
meanings specified below:



     “ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to
the Alternate Base Rate.



     “Acquired Entity” shall have the meaning assigned to such term in Section 6.04(l).



     “Acquisition” shall have the meaning assigned to such term in the Preliminary
Statements.



     “Acquisition Consideration” shall have the meaning assigned to such term in the
Preliminary Statements.



     “Acquisition Transactions” shall have the meaning set forth in Section 3.02.



     “Adjusted LIBO Rate” shall mean, with respect to any Eurodollar Borrowing for any
Interest Period, an interest rate per annum equal to the greater of (a) 3.00% and (b) the product
of (i) the LIBO Rate in effect for such Interest Period and (ii) Statutory Reserves.



     “Administrative Agent” shall have the meaning assigned to such term in the
introductory statement to this Agreement.



     “Administrative Agent Fees” shall have the meaning assigned to such term in Section
2.05(b).



     “Administrative Questionnaire” shall mean an Administrative Questionnaire in the form
of Exhibit A, or such other form as may be supplied from time to time by the Administrative Agent.



     “Affiliate” shall mean, when used with respect to a specified person, another person
that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is
under common Control with the person specified.



     “Affiliate Subordination Agreement” shall mean an Affiliate Subordination Agreement in
the form of Exhibit F pursuant to which intercompany obligations and advances owed by any Loan
Party to a person that is not a Loan Party are subordinated to the Obligations.



     “Agents” shall have the meaning assigned to such term in Article 8.



2









 





     “Agreement” shall have the meaning assigned to such term in the preamble hereto.



     “Agreement Value” shall mean, for each Hedging Agreement, on any date of
determination, the maximum aggregate amount (giving effect to any netting agreements) that the
Borrower or any Subsidiary would be required to pay if such Hedging Agreement were terminated on
such date.



     “Alpharma Convertible Note Indenture” shall mean the Indenture dated as of March 20,
2007, as supplemented by the First Supplemental Indenture dated March 20, 2007, each between
Alpharma Inc. and U.S. Bank National Association, as trustee, as in effect on the Closing Date.



     “Alpharma Convertible Notes” shall mean the 2.125% convertible senior notes due 2027
issued by Alpharma Inc. pursuant to the Alpharma Convertible Note Indenture and outstanding on the
Closing Date.



     “Alpharma Escrow Account” shall have the meaning assigned to such term in Section
5.16.



     “Alternate Base Rate” shall mean, for any day, a rate per annum equal to the greatest
of (a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such
day plus 1/2 of 1% and (c) the Adjusted LIBO Rate for a one month Interest Period on such day (or
if such day is not a Business Day, the immediately preceding Business Day) plus 1.00%; provided
that, for the avoidance of doubt, the Adjusted LIBO Rate for any day shall be based on the rate
determined on such day at approximately 11 a.m. (London time) by reference to the British Bankers’
Association Interest Settlement Rates for deposits in dollars (as set forth by any service selected
by the Administrative Agent that has been nominated by the British Bankers’ Association as an
authorized vendor for the purpose of displaying such rates) on such day.



     “Applicable Percentage” shall mean, for any day (a) with respect to any Eurodollar
Loan, 5.0% per annum and (b) with respect to any ABR Loan, 4.0% per annum.



     “ARS Liquidation Event” shall mean any event which enables the Borrower or any
Subsidiary to convert its auction rate securities into cash or other immediately available funds
(whether through incurring Permitted ARS Indebtedness, the redemption of such auction rate
securities by the issuer thereof, the repurchase of such auction rate securities by the seller
thereof, the sale of such auction rate securities by the Borrower or such Subsidiary, or
otherwise).



     “Asset Sale” shall mean the sale, transfer or other disposition (by way of merger,
casualty, condemnation or otherwise) by the Borrower or any of the Subsidiaries to any person other
than the Borrower or any Subsidiary Guarantor of (a) any Equity Interests of any of the
Subsidiaries (other than directors’



3









 







qualifying shares) or (b) any other assets of the Borrower or any of the Subsidiaries (other
than (i) inventory (including raw material), damaged, obsolete, surplus or worn out assets, scrap
and Permitted Investments, in each case disposed of in the ordinary course of business, (ii)
dispositions between or among Foreign Subsidiaries, (iii) dispositions of Margin Stock for cash and
for fair market value as determined in good faith by the board of directors of the Borrower;
provided that the cash proceeds received in connection with any such disposition are held in cash
or Permitted Investments, (iv) solely for the purpose of Section 2.13(a), any ARS Liquidation Event
and (v) any sale, transfer or other disposition or series of related sales, transfers or other
dispositions having a value not in excess of $500,000).



     “Assignment and Acceptance” shall mean an assignment and acceptance entered into by a
Lender and an Eligible Assignee, and accepted by the Administrative Agent, in the form of Exhibit B
or such other form as shall be approved by the Administrative Agent.



     “Availability Period” shall mean the period commencing on the Closing Date and ending
on (and including) the earliest of (a) the date that is 120 days after the Closing Date (or, if not
a Business Day, the next succeeding Business Day), (b) the date on which the Merger is consummated
and (c) the date on which the Commitments shall have been terminated in accordance with the terms
hereof.



     “Board” shall mean the Board of Governors of the Federal Reserve System of the United
States of America.



     “Borrower” shall have the meaning assigned to such term in the introductory statement
to this Agreement.



     “Borrower Materials” shall have the meaning assigned to such term in Section 9.01.



     “Borrowing” shall mean Loans of the same Type made, converted or continued on the same
date and, in the case of Eurodollar Loans, as to which a single Interest Period is in effect.



     “Borrowing Request” shall mean a request by the Borrower in accordance with the terms
of Section 2.03 and substantially in the form of Exhibit C, or such other form as shall be approved
by the Administrative Agent.



     “Breakage Event” shall have the meaning assigned to such term in Section 2.16.



     “Business Day” shall mean any day other than a Saturday, Sunday or day on which banks
in New York City are authorized or required by law to close; provided, however, that when used in
connection with a Eurodollar Loan, the term



4









 





“Business Day” shall also exclude any day on which banks are not open for dealings in
Dollar deposits in the London interbank market.



     “Capital Expenditures” shall mean, for any period, (a) the additions to property,
plant and equipment and other capital expenditures of the Borrower and its consolidated
Subsidiaries that are (or should be) set forth in a consolidated statement of cash flows of the
Borrower for such period prepared in accordance with GAAP and (b) Capital Lease Obligations or
Synthetic Lease Obligations incurred by the Borrower and its consolidated Subsidiaries during such
period, but excluding in each case any such expenditure made to restore, replace or rebuild
property to the condition of such property immediately prior to any damage, loss, destruction or
condemnation of such property, to the extent such expenditure is made with insurance proceeds,
condemnation awards or damage recovery proceeds relating to any such damage, loss, destruction or
condemnation.



     “Capital Lease Obligations” of any person shall mean the obligations of such person to
pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real
or personal property, or a combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such person under GAAP, and the amount of
such obligations shall be the capitalized amount thereof determined in accordance with GAAP.



     A “Change in Control” shall be deemed to have occurred if (a) any “person” or
“group” (within the meaning of Rule 13d-5 of the Securities Exchange Act of 1934, as
amended, as in effect on the Closing Date) shall own, directly or indirectly, beneficially or of
record, shares representing more than 20% of the aggregate ordinary voting power represented by the
issued and outstanding capital stock of the Borrower, (b) a majority of the seats (other than
vacant seats) on the board of directors of the Borrower shall at any time be occupied by persons
who were neither (i) nominated by the board of directors of the Borrower nor (ii) appointed by
directors so nominated, or (c) any change in control (or similar event, however denominated) with
respect to the Borrower or any of the Subsidiaries shall occur under and as defined in any
indenture or agreement in respect of Material Indebtedness to which the Borrower or any Subsidiary
is a party.



     “Change in Law” shall mean (a) the adoption of any law, rule or regulation after the
date of this Agreement, (b) any change in any law, rule or regulation or in the interpretation or
application thereof by any Governmental Authority after the date of this Agreement or (c)
compliance by any Lender (or, for purposes of Section 2.14, by any lending office of such Lender or
by such Lender’s holding company, if any) with any request, guideline or directive (whether or not
having the force of law) of any Governmental Authority made or issued after the date of this
Agreement.



     “Charges” shall have the meaning assigned to such term in Section 9.09.



5









 





     “Closing Date” shall mean the date of the first Credit Event.



     “Co-Documentation Agents” shall mean U.S. Bank National Association and DNB First
Bank.



     “Co-Syndication Agent” shall mean Wachovia Bank, National Association and SunTrust
Bank.



     “Code” shall mean the Internal Revenue Code of 1986, as amended from time to time.



     “Collateral” shall mean all the “Collateral” as defined in any Security
Document and shall also include the Mortgaged Properties.



     “Collateral Agent” shall have the meaning assigned to such term in the introductory
statement to this Agreement.



     “Commitment” shall mean, with respect to each Lender, the commitment of such Lender to
make Loans hereunder as set forth on Schedule 2.01, or in the Assignment and Acceptance pursuant to
which such Lender assumed its Commitment, as applicable, as the same may be (a) reduced from time
to time pursuant to Section 2.09 and (b) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 9.04.



     “Communications” shall have the meaning assigned to such term in Section 9.01.



     “Confidential Information” shall have the meaning assigned to such term in
Section 9.16.



     “Confidential Information Memorandum” shall mean the Confidential Information
Memorandum of the Borrower dated November 2008.



     “Consolidated EBITDA” shall mean, for any period, Consolidated Net Income for such
period plus (a) without duplication and to the extent deducted in determining such Consolidated Net
Income, the sum of (i) consolidated interest expense for such period, (ii) the aggregate amount of
letter of credit fees paid during such period, (iii) consolidated income tax expense for such
period, (iv) all amounts attributable to depreciation and amortization expense for such period, (v)
all extraordinary charges for such period, (vi) all other non-cash charges (other than the
write-down of current assets) for such period, (vii) all Milestone expenses paid during such
period, (viii) Transaction Fees paid in cash during such period, (ix) all other non-recurring cash
charges incurred for such period in connection with the Merger (including payments to officers,
employees and directors as change of control payments, severance payments, special or retained
bonuses and charges for repurchases or rollover of, or modifications to, stock options); provided
that no more than $75,000,000 in the aggregate may be added



6









 







back pursuant to this clause during the term of this Agreement and (x) all other non-recurring
cash charges incurred during such period; provided that no more than $125,000,000 in the aggregate
may be added back pursuant to this clause during the term of this Agreement and minus (b) without
duplication (i) all cash payments made during such period on account of reserves, restructuring
charges and other non-cash charges added to Consolidated Net Income pursuant to clause (a)(vi)
above in a previous period and (ii) to the extent included in determining such Consolidated Net
Income, any extraordinary gains and all non-cash items of income for such period, all as determined
on a consolidated basis with respect to the Borrower and the Subsidiaries in accordance with GAAP;
provided that solely for purposes of calculating the Leverage Ratio in connection with determining
compliance with Section 6.12 for any period and the Consolidated Interest Expense Coverage Ratio
with respect to the first three full fiscal quarters ended after the Closing Date (A) the
Consolidated EBITDA of any Acquired Entity acquired by the Borrower or any Subsidiary pursuant to a
Permitted Acquisition during such period shall be included on a pro forma basis for such period
(assuming the consummation of such acquisition and the incurrence or assumption of any Indebtedness
in connection therewith occurred as of the first day of such period) and (B) the Consolidated
EBITDA of any person or line of business sold or otherwise disposed of by the Borrower or any
Subsidiary during such period shall be excluded for such period (assuming the consummation of such
sale or other disposition and the repayment of any Indebtedness in connection therewith occurred as
of the first day of such period). For purposes of determining the Consolidated Interest Expense
Coverage Ratio and the Leverage Ratio as of or for the periods ended on March 31, 2009 and June 30,
2009, Consolidated EBITDA will be deemed to be equal to (i) for the fiscal quarter ended June 30,
2008, $175,000,000 and (ii) for the fiscal quarter ended September 30, 2008, $189,000,000.



     “Consolidated Interest Expense” shall mean, for any period, the interest expense, both
expensed and capitalized (including the interest component in respect of Capital Lease Obligations
and Synthetic Lease Obligations), accrued or paid by the Borrower and the Subsidiaries during such
period, determined on a consolidated basis in accordance with GAAP. For purposes of the foregoing,
interest expense shall be determined after giving effect to any net payments made or received by
the Borrower and the Subsidiaries with respect to interest rate Hedging Agreements.



     “Consolidated Interest Expense Coverage Ratio” shall mean, for any period, the ratio
of (a) Consolidated EBITDA for such period to (b) Consolidated Interest Expense for such period;
provided that (i) for the purpose of determining the Consolidated Interest Expense Coverage Ratio,
no effect shall be given to FASB Staff Position No. APB 14-1 dated May 9, 2008 and (ii) for the
first three consecutive full fiscal quarters ending on or after the Closing Date, Consolidated
Interest Expense shall be deemed to be equal to (a) the Consolidated Interest Expense for the first
such fiscal quarter, multiplied by 4, (b) the sum of



7









 







Consolidated Interest Expense for the first and second such fiscal quarters, multiplied by 2
and (c) the sum of Consolidated Interest Expense for the first, second and third fiscal quarters
ended, multiplied by 4/3, respectively.



     “Consolidated Net Income” shall mean, for any period, the net income or loss of the
Borrower and the Subsidiaries for such period, as determined on a consolidated basis in accordance
with GAAP; provided that there shall be excluded (a) the income of any person (other than the
Borrower) in which any other person (other than the Borrower or a Wholly Owned Subsidiary or any
director holding qualifying shares in accordance with applicable law) has a joint equity interest,
except to the extent of the amount of dividends or other distributions actually paid to the
Borrower or a Wholly Owned Subsidiary by such person during such period, (b) the income of any
Subsidiary to the extent that the declaration or payment of dividends or similar distributions by
the Subsidiary of that income is not at the time permitted by operation of the terms of its charter
or any agreement, instrument, judgment, decree, statute, rule or governmental regulation applicable
to such Subsidiary, (c) the income or loss of any person accrued prior to the date it becomes a
Subsidiary or is merged into or consolidated with the Borrower or any Subsidiary or the date that
such person’s assets are acquired by the Borrower or any Subsidiary, and (d) any gains attributable
to sales of assets out of the ordinary course of business.



     “Control” shall mean the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a person, whether through the ownership of
voting securities, by contract or otherwise, and the terms “Controlling” and
“Controlled” shall have meanings correlative thereto.



     “Controlled Deposit Account” shall have the meaning assigned to such term in the
Guarantee and Collateral Agreement.



     “Convertible Note Indenture” shall mean the Indenture dated as of March 29, 2006,
between King Pharmaceuticals, Inc., the subsidiary guarantors party thereto and The Bank of New
York Trust Company, N.A., as trustee.



     “Convertible Notes” shall mean the 11/4% convertible senior notes due April 1, 2026
issued by the Borrower pursuant to the Convertible Note Indenture.



     “Credit Event” shall have the meaning assigned to such term in Section 4.01.



     “Current Assets” shall mean, at any time, the consolidated current assets (other than
cash and Permitted Investments) of the Borrower and the Subsidiaries.



     “Current Liabilities” shall mean, at any time, the consolidated current liabilities of
the Borrower and the Subsidiaries at such time, but excluding, without duplication, (a) the current
portion of any long-term Indebtedness and (b)



8









 







outstanding revolving loans and swingline loans under the Revolving Loan Credit Agreement.



     “Default” shall mean any event or condition which upon notice, lapse of time or both
would constitute an Event of Default.



     “Defaulting Lender” shall mean (a) any Lender that has (i) defaulted in its obligation
to make a Loan required to be made by it hereunder, or (ii) notified the Administrative Agent or a
Loan Party in writing that it does not intend to satisfy any such obligation, or (b) any Lender
that has become insolvent, is the subject of any bankruptcy, insolvency, receivership or similar
proceedings or the assets or management of which has been taken over by (or at the direction of)
any Governmental Authority.



     “Delayed Draw Fee” shall have the meaning assigned to such term in Section 2.05(a).



     “Deposit Account Control Agreement” shall have the meaning assigned to such term in
the Guarantee and Collateral Agreement.



     “Disqualified Stock” shall mean any Equity Interest that, by its terms (or by the
terms of any security into which it is convertible or for which it is exchangeable), or upon the
happening of any event, (a) matures (excluding any maturity as the result of an optional redemption
by the issuer thereof) or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or is redeemable at the option of the holder thereof, in whole or in part, or requires
the payment of any cash dividend or any other scheduled payment constituting a return of capital,
in each case at any time on or prior to the first anniversary of the Maturity Date, or (b) is
convertible into or exchangeable (unless at the sole option of the issuer thereof) for (i) debt
securities or (ii) any Equity Interest referred to in clause (a) above, in each case at any time
prior to the first anniversary of the Maturity Date; provided that for the purpose of this
definition, the Maturity Date shall be determined without regard to the proviso to the definition
thereof.



     “Dollars” or “$” shall mean lawful money of the United States of America.



     “Domestic Subsidiary” shall mean a Subsidiary incorporated or organized under the laws
of the United States of America, any State thereof or the District of Columbia.



     “Eligible Assignee” shall mean (i) a Lender, (ii) an Affiliate of a Lender, (iii) a
Related Fund of a Lender and (iv) any other person (other than a natural person) approved by the
Administrative Agent (such approval not to be unreasonably withheld or delayed); provided that
notwithstanding the foregoing, “Eligible Assignee” shall not include the Borrower or any of
the Borrower’s Affiliates.



9









 





     “environment” shall mean ambient air, surface water and groundwater (including potable
water, navigable water and wetlands), the land surface or subsurface strata or as otherwise defined
in any Environmental Law.



     “Environmental Claim” shall mean any written allegation, notice of violation, claim,
demand, order, directive, cost recovery action or other cause of action by, or on behalf of, any
Governmental Authority or any person for damages, injunctive or equitable relief, personal injury
(including sickness, disease or death), Remedial Action costs, tangible or intangible property
damage, natural resource damages, nuisance, pollution, any adverse effect on the environment caused
by any Hazardous Material, or for fines, penalties or restrictions, resulting from or based upon
(a) the existence, or the continuation of the existence, of a Release (including sudden or
non-sudden, accidental or non-accidental Releases), (b) exposure to any Hazardous Material, (c) the
presence, use, handling, generation, transportation, storage, treatment or disposal of any
Hazardous Material, or (d) the violation or alleged violation of any Environmental Law or
Environmental Permit.



     “Environmental Law” shall mean any and all applicable present and future treaties,
laws (including common law), rules, regulations, codes, ordinances, orders, decrees, judgments,
injunctions, notices or binding agreements issued, promulgated or entered into by any Governmental
Authority, relating in any way to the environment, preservation or reclamation of natural
resources, the management, Release or threatened Release of or exposure to any Hazardous Material
or to health and safety matters, including, but not limited to, the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. § 9601 et seq.
(collectively “CERCLA”), the Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act of 1976 and the Hazardous and Solid Waste Amendments of 1984, 42
U.S.C. § 6901 et seq., the Federal Water Pollution Control Act, as amended, 33 U.S.C. § 1251 et
seq., the Clean Air Act of 1970, as amended, 42 U.S.C. § 7401 et seq., the Toxic Substances Control
Act of 1976, 15 U.S.C. § 2601 et seq., the Occupational Safety and Health Act of 1970, as amended,
29 U.S.C. § 651 et seq., the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C.
§ 11001 et seq., the Safe Drinking Water Act of 1974, as amended, 42 U.S.C. § 300(f) et seq., the
Hazardous Materials Transportation Act, 49 U.S.C. § 5101 et seq., the Federal Insecticide,
Fungicide and Rodenticide Act, 7 U.S.C. § 136 et seq., and any similar or implementing foreign,
state or local law, and all amendments or regulations promulgated under any of the foregoing.



     “Environmental Permit” shall mean any permit, approval, authorization, certificate,
license, variance, filing or permission required by or from any Governmental Authority pursuant to
any Environmental Law.



     “Equity Interests” shall mean shares of capital stock, partnership interests,
membership interests in a limited liability company, beneficial interests in a trust or other
equity ownership interests in any person, and any option, warrant or other



10









 







right entitling the holder thereof to purchase or otherwise acquire any such equity interest.



     “Equity Issuance” shall mean any issuance or sale by the Borrower or any Subsidiary of
any Equity Interests of the Borrower or such Subsidiary, as applicable, except in each case for (a)
any issuance or sale to the Borrower or any Subsidiary, (b) any issuance of directors’ qualifying
shares, and (c) sales or issuances of common stock of the Borrower to management or employees of
the Borrower or any Subsidiary under any employee stock incentive, stock option or stock purchase
plan (or other equity-based compensation plan or arrangement) or employee benefit plan in existence
from time to time.



     “ERISA” shall mean the Employee Retirement Income Security Act of 1974, as the same
may be amended from time to time.



     “ERISA Affiliate” shall mean any trade or business (whether or not incorporated) that,
together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the
Code, or solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a
single employer under Section 414 of the Code.



     “ERISA Event” shall mean (a) any “reportable event”, as defined in Section 4043 of
ERISA or the regulations issued thereunder, with respect to a Plan; (b) the adoption of any
amendment to a Plan that would require the provision of security pursuant to Section 401(a)(29) of
the Code or Section 307 of ERISA; (c) the existence with respect to any Plan of an “accumulated
funding deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (d) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any Plan; (e) the
incurrence of any liability under Title IV of ERISA with respect to the termination of any Plan or
the withdrawal or partial withdrawal of the Borrower or any of its ERISA Affiliates from any Plan
or Multiemployer Plan; (f) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a
plan administrator of any notice relating to the intention to terminate any Plan or Plans or to
appoint a trustee to administer any Plan; (g) the receipt by the Borrower or any ERISA Affiliate of
any notice concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of
Title IV of ERISA; and (h) the occurrence of a “prohibited transaction” with respect to which the
Borrower or any of the Subsidiaries is a “disqualified person” (within the meaning of Section 4975
of the Code) with respect to which the Borrower or any such Subsidiary could otherwise have or
incur material liabilities.



     “Eurodollar”, when used in reference to any Loan or Borrowing, refers to whether such
Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by
reference to the Adjusted LIBO Rate (other than pursuant to clause (c) of the definition of
Alternate Base Rate).



11









 





     “Events of Default” shall have the meaning assigned to such term in Article 7.



     “Excess Cash Flow” shall mean, for any fiscal year of the Borrower, the excess of (a)
the sum, without duplication, of (i) Consolidated EBITDA for such fiscal year and (ii) reductions
to non-cash working capital of the Borrower and the Subsidiaries for such fiscal year (i.e., the
decrease, if any, in Current Assets minus Current Liabilities from the beginning to the end of such
fiscal year) over (b) the sum, without duplication, of (i) the amount of any Taxes payable in cash
by the Borrower and the Subsidiaries with respect to such fiscal year, (ii) Consolidated Interest
Expense for such fiscal year paid in cash, (iii) Capital Expenditures made in cash in accordance
with Section 6.10 during such fiscal year, except to the extent financed with the proceeds of
Indebtedness, equity issuances, casualty proceeds, condemnation proceeds or other proceeds that
would not be included in Consolidated EBITDA, (iv) permanent repayments of Indebtedness (other than
mandatory prepayments of Loans under Section 2.13) made in cash by the Borrower and the
Subsidiaries during such fiscal year, but only to the extent that the Indebtedness so prepaid by
its terms cannot be reborrowed or redrawn and such prepayments do not occur in connection with a
refinancing of all or any portion of such Indebtedness, (v) the aggregate amount of letter of
credit fees paid in cash by the Borrower and the Subsidiaries during such fiscal year, (vi) the
aggregate amount of Milestone payments made in cash by the Borrower and the Subsidiaries during
such fiscal year, (vii) to the extent added to Consolidated Net Income in the calculation of
Consolidated EBITDA for such fiscal year, (x) all Transaction Fees paid in cash during such fiscal
year, (y) the aggregate amount of other non-recurring cash charges incurred by the Borrower and the
Subsidiaries during such fiscal year in connection with the Merger (including payments to officers,
employees and directors as change of control payments, severance payments, special or retained
bonuses and charges for repurchases or rollover of, or modifications to, stock options); provided
that no more than $75,000,000 in the aggregate may be deducted pursuant to this clause (y) during
the term of this Agreement and (z) the aggregate amount of other non-recurring cash charges
incurred by the Borrower and the Subsidiaries during such fiscal year; provided that no more than
$125,000,000 in the aggregate may be deducted pursuant to this clause (z) during the term of this
Agreement and (viii) additions to non-cash working capital for such fiscal year (i.e., the
increase, if any, in Current Assets minus Current Liabilities from the beginning to the end of such
fiscal year).



     “Excess Cash Flow Prepayment Date” shall have the meaning assigned to such term in
Section 2.13(c).



     “Excluded Taxes” shall mean, with respect to the Administrative Agent, any Lender or
any other recipient of any payment to be made by or on account of any obligation of the Borrower
hereunder, (a) income or franchise taxes imposed on (or measured by) its net income by the United
States of America, or by the jurisdiction under the laws of which such recipient is organized or in
which its principal office is located or, in the case of any Lender, in which its applicable



12









 







lending office is located (provided, however, that none of any Lender or any other recipient
shall be deemed to be located in any jurisdiction solely as a result of receiving any payments
under, or taking any other action related to, any loan under this or any other agreement), (b) any
branch profits taxes imposed by the United States of America or any similar tax imposed by any
other jurisdiction described in clause (a) above and (c) in the case of a Foreign Lender (other
than an assignee pursuant to a request by the Borrower under Section 2.21(a)), any withholding tax
that (i) is in effect and would apply to amounts payable to such Foreign Lender at the time such
Foreign Lender becomes a party to this Agreement (or designates a new lending office), except to
the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of
designation of a new lending office (or assignment), to receive additional amounts from the
Borrower with respect to any withholding tax pursuant to Section 2.20(a) or (ii) is attributable to
such Foreign Lender’s failure to comply with Section 2.20(e).



     “Extraordinary Receipt” shall mean any cash received by or paid to or for the account
of the Borrower or any Subsidiary in respect of any purchase price adjustments or indemnity
payments payable in connection with the Acquisition.



     “Federal Funds Effective Rate” shall mean, for any day, the weighted average of the
rates on overnight Federal funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day that is a Business Day, the
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for the day for
such transactions received by the Administrative Agent from three Federal funds brokers of
recognized standing selected by it.



     “Fee Letter” shall mean the second amended and restated Fee Letter dated December 17,
2008 among the Borrower, Credit Suisse, Credit Suisse Securities (USA) LLC, Wachovia Capital
Markets, LLC and Wachovia Bank, National Association.



     “Fees” shall mean the Delayed Draw Fees and the Administrative Agent Fees.



     “Financial Officer” of any person shall mean the chief financial officer, principal
accounting officer, treasurer or controller of such person.



     “Foreign Lender” shall mean any Lender that is organized under the laws of a
jurisdiction other than that in which the Borrower is located. For purposes of this definition,
the United States of America, each State thereof and the District of Columbia shall be deemed to
constitute a single jurisdiction.



     “Foreign Subsidiary” shall mean any Subsidiary that is not a Domestic Subsidiary.



13









 





     “GAAP” shall mean United States generally accepted accounting principles applied on a
consistent basis.



     “Governmental Authority” shall mean any Federal, state, local, foreign or
transnational court or governmental agency, authority, instrumentality or regulatory body.



     “Granting Lender” shall have the meaning assigned to such term in Section 9.04(i).



     “Guarantee” of or by any person shall mean any obligation, contingent or otherwise, of
such person guaranteeing or having the economic effect of guaranteeing any Indebtedness of any
other person (the “primary obligor”) in any manner, whether directly or indirectly, and
including any obligation of such person, direct or indirect, (a) to purchase or pay (or advance or
supply funds for the purchase or payment of) such Indebtedness or to purchase (or to advance or
supply funds for the purchase of) any security for the payment of such Indebtedness, (b) to
purchase or lease property, securities or services for the purpose of assuring the owner of such
Indebtedness of the payment of such Indebtedness or (c) to maintain working capital, equity capital
or any other financial statement condition or liquidity of the primary obligor so as to enable the
primary obligor to pay such Indebtedness; provided, however, that the term “Guarantee” shall not
include endorsements for collection or deposit in the ordinary course of business.



     “Guarantee and Collateral Agreement” shall mean the Guarantee and Collateral
Agreement, substantially in the form of Exhibit D, among the Borrower, the Subsidiaries party
thereto and the Collateral Agent.



     “Guarantors” shall mean the Subsidiary Guarantors.



     “Hazardous Materials” shall mean all explosive or radioactive substances or wastes,
hazardous or toxic substances or wastes, pollutants, solid, liquid or gaseous wastes, including
petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated
biphenyls (“PCBs”) or PCB containing materials or equipment, radon gas, infectious or medical
wastes and all other substances or wastes of any nature regulated pursuant to any environmental
law.



     “Health Care Laws” shall mean any and all applicable current and future treaties,
laws, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions, notices or
binding agreements issued, promulgated or entered into by the Food and Drug Administration, the
Center for Medicare and Medicaid Services, the Department of Health and Human Services
(“HHS”), the Office of Inspector General of HHS, the Drug Enforcement Administration or any
other Governmental Authority (including any professional licensing laws, certificate of need laws
and state reimbursement laws), relating in any way to the manufacture, distribution, marketing,
sale, supply or other disposition of any product or service



14









 







of the Borrower or any Subsidiary, the conduct of the business of the Borrower or any
Subsidiary, the provision of health care services generally, or to any relationship among the
Borrower and the Subsidiaries, on the one hand, and their suppliers and customers and patients and
other end users of their products and services, on the other hand.



     “Hedging Agreement” shall mean any interest rate protection agreement, foreign
currency exchange agreement, commodity price protection agreement or other interest or currency
exchange rate or commodity price hedging arrangement.



     “HSR Act” shall have the meaning assigned to such term in Section 4.02(r).



     “Indebtedness” of any person shall mean, without duplication, (a) all obligations of
such person for borrowed money, (b) all obligations of such person evidenced by bonds, debentures,
notes or similar instruments, (c) all obligations of such person upon which interest charges are
customarily paid, (d) all obligations of such person under conditional sale or other title
retention agreements relating to property or assets purchased by such person, (e) all obligations
of such person issued or assumed as the deferred purchase price of property or services (excluding
trade accounts payable and accrued obligations incurred in the ordinary course of business), (f)
all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such
person, whether or not the obligations secured thereby have been assumed, (g) all Guarantees by
such person of Indebtedness of others, (h) all Capital Lease Obligations of such person, (i) all
Synthetic Lease Obligations of such person, (j) net obligations of such person under any Hedging
Agreements, valued at the Agreement Value thereof, (k) all obligations of such person to purchase,
redeem, retire, defease or otherwise make any payment in respect of any Equity Interests of such
person or any other person or any warrants, rights or options to acquire such equity interests,
valued, in the case of redeemable preferred interests, at the greater of its voluntary or
involuntary liquidation preference plus accrued and unpaid dividends, (l) all obligations of such
person as an account party in respect of letters of credit and (m) all obligations of such person
in respect of bankers’ acceptances. The Indebtedness of any person shall include the Indebtedness
of any partnership in which such person is a general partner.



     “Indemnified Taxes” shall mean Taxes other than Excluded Taxes.



     “Indemnitee” shall have the meaning assigned to such term in Section 9.05(b).



     “Interest Payment Date” shall mean (a) with respect to any ABR Loan, the last Business
Day of each March, June, September and December (commencing with March, 2009), and (b) with respect
to any Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing of which
such Loan is a part and,



15









 







in the case of a Eurodollar Borrowing with an Interest Period of more than three months’
duration, each day that would have been an Interest Payment Date had successive Interest Periods of
three months’ duration been applicable to such Borrowing.



     “Interest Period” shall mean, with respect to any Eurodollar Borrowing, the period
commencing on the date of such Borrowing and ending on the numerically corresponding day in the
calendar month that is 1, 2, 3 or 6 (or, if agreed to by each Lender, 9) months thereafter, as the
Borrower may elect; provided, however, that (a) if any Interest Period would end on a day other
than a Business Day, such Interest Period shall be extended to the next succeeding Business Day
unless such next succeeding Business Day would fall in the next calendar month, in which case such
Interest Period shall end on the next preceding Business Day, (b) any Interest Period that begins
on the last Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period) shall end on the last
Business Day of the calendar month at the end of such Interest Period and (c) no Interest Period
for any Loan shall extend beyond the Maturity Date. Interest shall accrue from and including the
first day of an Interest Period to but excluding the last day of such Interest Period. For
purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is
made and thereafter shall be the effective date of the most recent conversion or continuation of
such Borrowing.



     “Joint Arrangers” shall mean Credit Suisse Securities (USA) LLC and Wachovia Capital
Markets, LLC.



     “Lenders” shall mean the persons listed on Schedule 2.01 and any other person that has
become a party hereto pursuant to an Assignment and Acceptance, other than any such person that has
ceased to be a party hereto pursuant to an Assignment and Acceptance.



     “Leverage Ratio” shall mean, on any date, the ratio of (a) Total Funded Debt on such
date to (b) Consolidated EBITDA for the most recently ended period of four fiscal quarters, all as
determined on a consolidated basis in accordance with GAAP.



     “LIBO Rate” shall mean, with respect to any Eurodollar Borrowing for any Interest
Period, the rate per annum determined by the Administrative Agent at approximately 11:00 a.m.,
London time, on the date which is two Business Days prior to the commencement of such Interest
Period by reference to the British Bankers’ Association Interest Settlement Rates for deposits in
Dollars (as set forth by any service selected by the Administrative Agent which has been nominated
by the British Bankers’ Association as an authorized information vendor for the purpose of
displaying such rates) for a period equal to such Interest Period; provided that, to the extent
that an interest rate is not ascertainable pursuant to the foregoing provisions of this definition,
the “LIBO Rate” shall be the interest rate



16









 







per annum determined by the Administrative Agent to be the average of the rates per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) at which deposits in Dollars are offered
for such relevant Interest Period to major banks in the London interbank market in London, England
by the Administrative Agent at approximately 11:00 a.m., London time, on the date that is two
Business Days prior to the beginning of such Interest Period.



     “Lien” shall mean, with respect to any asset, (a) any mortgage, deed of trust, lien,
pledge, encumbrance, charge or security interest in or on such asset, (b) the interest of a vendor
or a lessor under any conditional sale agreement, capital lease or title retention agreement (or
any financing lease having substantially the same economic effect as any of the foregoing) relating
to such asset and (c) in the case of securities, any purchase option, call or similar right of a
third party with respect to such securities.



     “Loan Documents” shall mean this Agreement, the Security Documents, the Fee Letter,
the promissory notes, if any, executed and delivered pursuant to Section 2.04(e) and any other
document executed in connection with the foregoing.



     “Loan Parties” shall mean the Borrower and the Subsidiary Guarantors.



     “Loans” shall mean the term loans made by the Lenders to the Borrower pursuant to
Section 2.01.



     “Margin Stock” shall have the meaning assigned to such term in Regulation U.



     “Material Adverse Effect” shall mean one or more events, changes or effects which,
individually or in the aggregate, have had or could reasonably be expected to have a material
adverse effect on (a) the business, assets, results of operations, condition (financial or
otherwise) or prospects of the Borrower and the Subsidiaries, taken as a whole, (b) the ability of
the Borrower or any other Loan Party to perform any of its obligations under any Loan Document to
which it is or will be a party or (c) the validity or enforceability of any of the Loan Documents
or any other documents entered into in connection with the Transactions or other transactions
contemplated thereby or the rights, remedies and benefits available to the parties thereunder;
provided that solely for the purposes of determining whether the condition in Section 4.01(b) has
been satisfied in connection with the first Credit Event on the Closing Date, a “Material Adverse
Effect” shall be deemed to have occurred for purposes of Section 3.06(a) if (x) there shall have
occurred any event, change or condition since December 31, 2007 that, individually or in the
aggregate, has had, or could reasonably be expected to have, a material adverse effect on the
business, assets, liabilities, operations, condition (financial or otherwise), operating results,
projections or prospects of the Target and its subsidiaries, taken as a whole, or (y) there shall
have occurred any event, change or condition since December 31, 2007 that, individually or in the



17









 







aggregate, has had, or could reasonably be expected to have, a material adverse effect on the
business, assets, liabilities, operations, condition (financial or otherwise), operating results,
projections or prospects of the Borrower and its subsidiaries, taken as a whole. For the avoidance
of doubt, neither a Skelaxin Expiration Event nor a Skelaxin Trigger Event shall constitute a
Material Adverse Effect.



     “Material Foreign Subsidiary” shall mean any Foreign Subsidiary (a) the consolidated
revenues of which for the most recent period of four fiscal quarters of the Borrower for which
audited financial statements have been delivered pursuant to Section 5.04 were greater than 2.5% of
the Borrower’s total consolidated revenues for such period or (b) the consolidated assets of which
as of the end of such period were greater than 2.5% of the Borrower’s total consolidated assets as
of such date.



     “Material Indebtedness” shall mean Indebtedness (other than the Loans), or obligations
in respect of one or more Hedging Agreements, of any one or more of the Borrower or any Subsidiary
in an aggregate principal amount exceeding $35,000,000. For purposes of determining Material
Indebtedness, the “principal amount” of the obligations of the Borrower or any Subsidiary in
respect of any Hedging Agreement at any time shall be the Agreement Value of such Hedging Agreement
at such time.



     “Material Leased Property” shall have the meaning assigned to such term in Section
3.20(b).



     “Maturity Date” shall mean the fourth anniversary of the Closing Date or, if such date
is not a Business Day, the immediately preceding Business Day; provided that, notwithstanding the
foregoing, the Maturity Date shall be October 1, 2011 (or, if such date is not a Business Day, the
immediately preceding Business Day) unless (a) the Convertible Notes shall have been refinanced in
full on terms reasonably satisfactory to the Administrative Agent on or prior to October 1, 2011
and (b) the Administrative Agent shall have notified the Borrower in writing on or prior to October
1, 2011 of the satisfaction of clause (a).



     “Maximum Rate” shall have the meaning assigned to such term in Section 9.09.



     “Merger” shall have the meaning assigned to such term in the Preliminary Statements.



     “Merger Agreement” shall mean the Agreement and Plan of Merger dated as of November
23, 2008 among the Borrower, Merger Sub and the Target, as amended from time to time in compliance
with Section 6.09(b).



18









 





     “Merger Borrowing” shall have the meaning assigned to such term in Section 4.03.



     “Merger Consideration” shall have the meaning assigned to such term in the Preliminary
Statements.



     “Merger Date” shall mean the date on which the Merger is consummated.



     “Merger Sub” shall mean Albert Acquisition Corp, a wholly owned Delaware subsidiary of
the Borrower.



     “Milestone” shall mean all in process research and development costs and payments due
upon achievement of certain clinical, regulatory and sales conditions.



     “Minimum Acceptance Condition” shall have the meaning given such term in Section
4.02(k).



     “Moody’s” shall mean Moody’s Investors Service, Inc., or any successor thereto.



     “Mortgaged Properties” shall mean, initially, the owned real properties and leasehold
and subleasehold interests of the Loan Parties specified on Schedule 1.01(c), and shall include
each other parcel of real property and improvements thereto with respect to which a Mortgage is
granted pursuant to Section 5.13.



     “Mortgages” shall mean the mortgages, deeds of trust, leasehold mortgages, assignments
of leases and rents, modifications and other security documents delivered pursuant to Section
4.02(i) or pursuant to Section 5.13, each substantially in the form of Exhibit E.



     “Multiemployer Plan” shall mean a multiemployer plan as defined in Section 4001(a)(3)
of ERISA.



     “Net Cash Proceeds” shall mean (a) with respect to any Asset Sale, the cash proceeds
thereof (including cash proceeds subsequently received (as and when received) in respect of
non-cash consideration initially received), net of (i) selling expenses (including actual broker’s
fees or commissions, legal fees, transfer and similar taxes and the Borrower’s good faith estimate
of income taxes paid or payable in connection with such sale), (ii) amounts provided as a reserve,
in accordance with GAAP, against any liabilities under any indemnification obligations or purchase
price adjustment associated with such Asset Sale (provided that, to the extent and at the time any
such amounts are released from such reserve, such amounts shall constitute Net Cash Proceeds) and
(iii) the principal amount, premium or penalty, if any, interest and other amounts on any
Indebtedness for borrowed money (other than Revolving Indebtedness) which is



19









 







secured by the asset sold in such Asset Sale and which is required to be repaid with such
proceeds (other than any such Indebtedness assumed by the purchaser of such asset); provided,
however, that, if (x) the Borrower shall deliver a certificate of a Financial Officer to the
Administrative Agent at the time of receipt thereof setting forth the Borrower’s intent to reinvest
such proceeds in productive assets of a kind then used or usable in the business of the Borrower
and its Subsidiaries within 180 days of receipt of such proceeds, (y) no Default or Event of
Default shall have occurred and shall be continuing at the time of such certificate or at the
proposed time of the application of such proceeds, and (z) such proceeds are not proceeds of any
Required Divestiture, such proceeds shall not constitute Net Cash Proceeds except to the extent
that either (A) such proceeds are not so used, and no legally binding commitment to so use such
proceeds has been entered into with an entity that is not an Affiliate of the Borrower or its
Subsidiaries, on or prior to the end of such 180-day period or (B) a legally binding commitment to
so use such proceeds has been entered into on or prior to the end of such 180-day period with an
entity that is not an Affiliate of the Borrower or its Subsidiaries, but such proceeds are not so
used on or prior to the 90th day following the end of such 180-day period, in either case, at which
time such proceeds shall be deemed to be Net Cash Proceeds; provided further that no cash proceeds
of an Asset Sale shall constitute Net Cash Proceeds until the aggregate amount of all Net Cash
Proceeds from Asset Sales (without giving effect to this proviso) exceeds $5,000,000; (b) with
respect to any issuance or incurrence of Indebtedness or any Equity Issuance or with respect to any
ARS Liquidation Event, the cash proceeds thereof, net of all taxes and customary fees, commissions,
costs and other expenses incurred in connection therewith (and, in the case of any ARS Liquidation
Event, net of the principal amount, premium or penalty, if any, interest or other amount on any
Permitted ARS Indebtedness which is required to be paid with such proceeds); and (c) with respect
to any Extraordinary Receipt, the cash proceeds thereof; provided further that for purposes of this
definition, an ARS Liquidation Event shall be governed by clause (b).



     “Obligations” shall mean all obligations defined as “Term Secured Obligations” in the
Guarantee and Collateral Agreement and the guarantee thereof set forth in the Guarantee and
Collateral Agreement.



     “OFAC” shall have the meaning assigned to such term in Section 3.24.



     “Other Taxes” shall mean any and all present or future stamp or documentary taxes or
any other excise or property taxes, charges or similar levies arising from any payment made under
any Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to,
any Loan Document.



     “Patriot Act” shall have the meaning assigned to such term in Section 9.18.



     “PBGC” shall mean the Pension Benefit Guaranty Corporation referred to and defined in
ERISA.



20









 





     “Perfection Certificate” shall have the meaning assigned to such term in the Guarantee
and Collateral Agreement.



     “Permitted Acquisition” shall have the meaning assigned to such term in Section
6.04(l).



     “Permitted ARS Indebtedness” shall mean any Indebtedness of the Borrower or any other
Loan Party that is secured solely by Liens permitted under Section 6.02(o) and that is otherwise on
terms and conditions reasonably satisfactory to the Administrative Agent.



     “Permitted Investments” shall mean:



     (a) direct obligations of, or obligations the principal of and interest on which are
unconditionally guaranteed by, the United States of America (or by any agency thereof to the extent
such obligations are backed by the full faith and credit of the United States of America), in each
case maturing within one year from the date of issuance thereof;



     (b) investments in commercial paper maturing within 270 days from the date of issuance thereof
and having, at the date of acquisition, a rating of at least “Prime 1” (or the then equivalent
grade) by Moody’s or “A-1” (or the then equivalent grade) by S&P;



     (c) investments in certificates of deposit, banker’s acceptances and time deposits maturing
within one year from the date of acquisition thereof issued or guaranteed by or placed with, and
money market deposit accounts issued or offered by, the Administrative Agent, the Collateral Agent
or any domestic office of any commercial bank organized under the laws of the United States of
America or any State thereof that has a combined capital and surplus and undivided profits of not
less than $500,000,000 and that issues (or the parent of which issues) commercial paper rated at
least “Prime 1” (or the then equivalent grade) by Moody’s or “A-1” (or the then equivalent grade)
by S&P;



     (d) fully collateralized repurchase agreements with a term of not more than 30 days for
securities described in clause (a) above and entered into with a financial institution satisfying
the criteria of clause (c) above;



     (e) investments in “money market funds” within the meaning of Rule 2a-7 of the Investment
Company Act of 1940, as amended, substantially all of whose assets are invested in investments of
the type described in clauses (a) through (d) above;



     (f) other short-term investments utilized by Foreign Subsidiaries in accordance with normal
investment practices for cash management in investments of a type analogous to the foregoing; and



21









 





     (g) other investment instruments approved in writing by the Required Lenders.



     For the avoidance of doubt, auction rate securities shall not constitute Permitted
Investments.



     “person” shall mean any natural person, corporation, business trust, joint venture,
association, company, limited liability company, partnership, Governmental Authority or other
entity.



     “Plan” shall mean any employee pension benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 307 of ERISA,
and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated,
would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of
ERISA.



     “Platform” shall have the meaning assigned to such term in Section 9.01.



     “Prime Rate” shall mean the rate of interest per annum determined from time to time by
Credit Suisse as its prime rate in effect at its principal office in New York City and notified to
the Borrower. The prime rate is a rate set by Credit Suisse based upon various factors including
Credit Suisse’s costs and desired return, general economic conditions and other factors, and is
used as a reference point for pricing some loans, which may be priced at, above, or below such
rate.



     “Properties” shall have the meaning assigned to such term in Section 3.17(a).



     “Public Lender” shall have the meaning assigned to such term in Section 9.01.



     “Qualified Capital Stock” of any person shall mean any Equity Interest of such person
that is not Disqualified Stock.



     “Register” shall have the meaning assigned to such term in Section 9.04(d).



     “Regulation T” shall mean Regulation T of the Board as from time to time in effect and
all official rulings and interpretations thereunder or thereof.



     “Regulation U” shall mean Regulation U of the Board as from time to time in effect and
all official rulings and interpretations thereunder or thereof.



     “Regulation X” shall mean Regulation X of the Board as from time to time in effect and
all official rulings and interpretations thereunder or thereof.



22









 





     “Related Fund” shall mean, with respect to any Lender that is a fund or commingled
investment vehicle that invests in bank loans, any other fund that invests in bank loans and is
managed or advised by the same investment advisor as such Lender or by an Affiliate of such
investment advisor.



     “Related Parties” shall mean, with respect to any specified person, such person’s
Affiliates and the respective directors, officers, employees, trustees, agents and advisors of such
person and such person’s Affiliates.



     “Release” shall mean any spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, disposing, depositing, dispersing, emanating
or migrating of any Hazardous Material in, into, onto or through the environment.



     “Remedial Action” shall mean (a) “remedial action” as such term is defined in CERCLA,
42 U.S.C. Section 9601(24), and (b) all other actions required by any Governmental Authority or
voluntarily undertaken to: (i) clean up, remove, treat, abate or in any other way address any
Hazardous Material in the environment; (ii) prevent the Release or threat of Release, or minimize
the further Release of any Hazardous Material so it does not migrate or endanger or threaten to
endanger public health, welfare or the environment; or (iii) perform studies and investigations in
connection with, or as a precondition to, clause (i) or (ii) above.



     “Repayment Date” shall have the meaning given such term in Section 2.11(a).



     “Required Divestiture” means any Asset Sale required by the applicable Governmental
Authority as a condition to obtaining any approval to, or as a condition to not objecting to,
restraining or preventing, the Acquisition under the HSR Act.



     “Required Lenders” shall mean, at any time, Lenders having Loans and Commitments
representing more than 50% of the sum of all Loans and Commitments outstanding at such time;
provided that the Commitments of any Defaulting Lender shall be disregarded in the determination of
the Required Lenders at any time.



     “Responsible Officer” of any person shall mean the chief executive officer, the
president or any Financial Officer of such person and any other officer or similar official thereof
responsible for the administration of the obligations of such person in respect of this Agreement.



     “Restricted Indebtedness” shall mean Indebtedness of the Borrower or any Subsidiary,
the payment, prepayment, repurchase or defeasance of which is restricted under Section 6.09.



23









 





     “Restricted Payment” shall mean any dividend or other distribution (whether in cash,
securities or other property) with respect to any Equity Interests in the Borrower or any
Subsidiary, or any payment (whether in cash, securities or other property), including any sinking
fund or similar deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any Equity Interests in the Borrower or any Subsidiary.



     “Revolving Indebtedness” shall mean Indebtedness of the Borrower under the Revolving
Loan Credit Agreement and all guarantees thereof by any Subsidiary Guarantor and all refinancings,
renewals and extensions thereof that are permitted by Section 6.01(l).



     “Revolving Liens” shall have the meaning assigned to such term in Section 6.02(r).



     “Revolving Loan Credit Agreement” shall mean the Credit Agreement dated as of April
19, 2007 as amended by Amendment No. 1 thereto dated as of December 5, 2008 among the Borrower, the
lenders named therein, and Credit Suisse, as administrative agent, collateral agent and swingline
lender, as the same may be amended, supplemented or otherwise modified from time to time in
accordance with Section 6.09 and any revolving credit agreement governing any refinancing, renewal
or extension of Indebtedness thereunder permitted by Section 6.01(l).



     “Revolving Loan Documents” shall mean the “Loan Documents” under, and as defined in,
the Revolving Loan Credit Agreement, and any documents governing refinancings, renewals and
extensions of the Indebtedness under the Revolving Loan Credit Agreement that are permitted by
Section 6.01(l).



     “Revolving Refinanced Indebtedness” shall have the meaning assigned to such term in
Section 6.01(l).



     “Revolving Refinancing Indebtedness” shall have the meaning assigned to such term in
Section 6.01(l).



     “S&P” shall mean Standard & Poor’s Ratings Services, or any successor thereto.



     “SEC” shall mean the U.S. Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.



     “Secured Parties” shall mean the “Term Secured Parties” as defined in the Guarantee
and Collateral Agreement.



     “Security Documents” shall mean the Mortgages, the Guarantee and Collateral Agreement
and each of the security agreements, mortgages and other



24









 







instruments and documents executed and delivered pursuant to any of the foregoing or pursuant
to Section 5.13.



     “Senior Managing Agents” means DZ Bank AG, Deutsche Zentral-Genossenschaftsbank New
York Branch, Siemans Financial Services, Inc., The Privatebank and Trust Company and Union Bank of
California, N.A..



     “Shares” shall mean all of the issued and outstanding shares of Class A Common Stock,
par value $0.20 per share, together with the associated preferred stock purchase rights, of the
Target.



     “Skelaxin Expiration Event” shall mean that any one or more of the following shall
have occurred: (i) U.S. Patent Nos. 6,407,128, 6,683,102 or any other United States Patent listed
in the Food and Drug Administration’s Orange Book with reference to Skelaxin (the “Skelaxin
Patents”), shall have expired, (ii) any final non-appealable judgment of any court of competent
jurisdiction shall have been entered holding that any Skelaxin Patent is non infringed, invalid or
unenforceable, or (iii) any authorized sale in the United States of a Food and Drug Administration
approved generic product of the same dosage, form and strength as Skelaxin (metaxalone) shall have
occurred.



     “Skelaxin Trigger Event” shall mean that, as a result of a Skelaxin Expiration Event,
the revenue of the Borrower and the Subsidiaries for any fiscal quarter shall be more than 20% less
than the revenue of the Borrower and the Subsidiaries for the corresponding fiscal quarter of the
prior fiscal year, in each case as determined on a consolidated basis in accordance with GAAP.



     “SPC” shall have the meaning assigned to such term in Section 9.04(i).



     “Specified Share” shall mean, at any time, a fraction expressed as a percentage, the
numerator of which is the aggregate outstanding amount of Loans and Commitments at such time and
the denominator of which is the sum of (x) the outstanding Revolving Credit Commitment (as defined
in the Revolving Loan Credit Agreement) at such time (whether used or unused) plus (y) the
aggregate outstanding amounts of Loans and Commitments at such time.



     “Statutory Reserves” shall mean a fraction (expressed as a decimal), the numerator of
which is the number one and the denominator of which is the number one minus the aggregate of the
maximum reserve percentages (including any marginal, special, emergency or supplemental reserves)
expressed as a decimal established by the Board and any other banking authority, domestic or
foreign, to which the Administrative Agent or any Lender (including any branch, Affiliate or other
fronting office making or holding a Loan) is subject for Eurocurrency Liabilities (as defined in
Regulation D of the Board). Eurodollar Loans shall be deemed to constitute Eurocurrency
Liabilities (as defined in Regulation D of the Board) and to be subject to such reserve
requirements without benefit of or credit for proration, exemptions or offsets that may be
available from



25









 







time to time to any Lender under such Regulation D. Statutory Reserves shall be adjusted
automatically on and as of the effective date of any change in any reserve percentage.



     “subsidiary” shall mean, with respect to any person (herein referred to as the
“parent”), any corporation, partnership, limited liability company, association or other
business entity (a) of which securities or other ownership interests representing more than 50% of
the equity or more than 50% of the ordinary voting power or more than 50% of the general
partnership interests are, at the time any determination is being made, owned, Controlled or held,
or (b) that is, at the time any determination is made, otherwise Controlled, by the parent or one
or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.



     “Subsidiary” shall mean any and all subsidiaries of the Borrower.



     “Subsidiary Guarantor” shall mean each Subsidiary listed on Schedule 1.01(b), and each
other Subsidiary that is or becomes a party to the Guarantee and Collateral Agreement.



     “Synthetic Lease” shall mean, as to any person, any lease (including leases that may
be terminated by the lessee at any time) of any property (whether real, personal or mixed) (a) that
is accounted for as an operating lease under GAAP and (b) in respect of which the lessee retains or
obtains ownership of the property so leased for U.S. federal income tax purposes, other than any
such lease under which such person is the lessor.



     “Synthetic Lease Obligations” shall mean, as to any person, an amount equal to the
capitalized amount of the remaining lease payments under any Synthetic Lease that would appear on a
balance sheet of such person in accordance with GAAP if such obligations were accounted for as
Capital Lease Obligations.



     “Synthetic Purchase Agreement” shall mean any swap, derivative or other agreement or
combination of agreements pursuant to which the Borrower or any Subsidiary is or may become
obligated to make (a) any payment in connection with a purchase by any third party from a person
other than the Borrower or any Subsidiary of any Equity Interest or Restricted Indebtedness or (b)
any payment (other than on account of a permitted purchase by it of any Equity Interest or
Restricted Indebtedness) the amount of which is determined by reference to the price or value at
any time of any Equity Interest or Restricted Indebtedness; provided that no phantom stock or
similar plan providing for payments only to current or former directors, officers or employees of
the Borrower or the Subsidiaries (or to their heirs or estates) shall be deemed to be a Synthetic
Purchase Agreement.



     “Target” shall mean Alpharma Inc., a Delaware corporation.




26











 





     “Taxes” shall mean any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority.



     “Tender Consideration” shall have the meaning assigned to such term in the Preliminary
Statements.



     “Tender Offer” shall mean the offer to purchase for cash all of the Shares by Merger
Sub pursuant to the Tender Offer Documentation and in accordance with the Merger Agreement.



     “Tender Offer Documentation” shall have the meaning given such term in Section 4.02(k)
and shall in any event include (x) the Offer to Purchase for Cash all outstanding Shares dated as
of September 12, 2008 as extended on October 13, 2008 and further extended on November 24, 2008 and
as modified to reflect the changes thereto set forth in the Merger Agreement and (y) the related
Letter of Transmittal, each as amended from time to time in compliance with Section 6.09(b).



     “Term Facility” shall mean the term loan facility provided for by this Agreement.



     “Total Funded Debt” shall mean, as of any date of determination, without duplication,
the aggregate principal amount of Indebtedness of the Borrower and the Subsidiaries outstanding as
of such date (other than Indebtedness of the type referred to in clauses (i), (j), (k) and (l) of
the definition of such term, except, (x) in the case of such clause (j), to the extent of the
Agreement Value of any Hedging Agreement that has been terminated and (y) in the case of such
clause (l), to the extent of any unreimbursed drawings thereunder).



     “Transaction Fees” means fees or expenses in an aggregate amount not exceeding
$70,000,000 for the term of this Agreement incurred or paid by Borrower or any Subsidiary in
connection with the Transactions.



     “Transactions” shall mean, collectively, (a) the execution, delivery and performance
by the Borrower and Merger Sub of the Merger Agreement and the consummation of the Merger and the
other transactions contemplated thereby, (b) the consummation of the Tender Offer, (c) the
execution, delivery and performance by the Loan Parties of the Loan Documents and the Revolving
Loan Documents to which they are a party and the making of the borrowings hereunder or thereunder,
and (d) the payment of related fees and expenses.



     “Type”, when used in respect of any Loan or Borrowing, shall refer to the Rate by
reference to which interest on such Loan or on the Loans comprising such Borrowing is determined.
For purposes hereof, the term “Rate” shall mean the Adjusted LIBO Rate and the Alternate
Base Rate.



27









 





     “Uniform Commercial Code” shall mean the Uniform Commercial Code in effect from time
to time in the State of New York; provided, however, that if by reason of mandatory provisions of
law, the perfection or the effect of perfection or non-perfection of the security interest in any
item or portion of the Collateral is governed by the Uniform Commercial Code as in effect in a
jurisdiction other than the State of New York, “Uniform Commercial Code” shall mean the
Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions
hereof relating to such perfection or effect of perfection or non-perfection.



     “Wholly Owned Subsidiary” of any person shall mean a subsidiary of such person of
which securities (except for directors’ qualifying shares) or other ownership interests
representing 100% of the Equity Interests are, at the time any determination is being made, owned,
Controlled or held by such person or one or more wholly owned Subsidiaries of such person or by
such person and one or more wholly owned Subsidiaries of such person.



     “Withdrawal Certificate” shall have the meaning ascribed to such term in Section 5.16.



     “Withdrawal Liability” shall mean liability to a Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.



     Section 1.02. Terms Generally. The definitions in Section 1.01 shall apply equally to both
the singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The
word “will” shall be construed to have the same meaning and effect as the word “shall”. All
references herein to Articles, Sections, Exhibits and Schedules shall be deemed references to
Articles and Sections of, and Exhibits and Schedules to, this Agreement unless the context shall
otherwise require. Except as otherwise expressly provided herein, (a) any reference in this
Agreement to any Loan Document shall mean such document as amended, restated, supplemented or
otherwise modified from time to time, in each case, in accordance with the express terms of this
Agreement, (b) any reference to any statute, regulation or other law shall be construed (i) as
referring to such statute, regulation or other law as from time to time amended, supplemented or
otherwise modified (including by succession of comparable successor statutes, regulations or other
laws) and (ii) to include all official rulings and interpretations thereunder, (c) any reference
herein to any person shall be construed to include such person’s successors and assigns, (d) the
words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer
to this Agreement in its entirety and not to any particular provision hereof, (e) the words
“assets” or “property” shall be construed to have the same meaning and effect and to refer to any
and all tangible and intangible assets and properties, including cash, securities, accounts and



28









 







contract rights and (f) all terms of an accounting or financial nature shall be construed in
accordance with GAAP, as in effect from time to time; provided, however, that, if the Borrower
notifies the Administrative Agent that the Borrower requests an amendment to any provision hereof
to eliminate the effect of any change occurring after the Closing Date in GAAP or in the
application thereof on the operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof for such purpose),
regardless of whether any such notice is given before or after such change in GAAP or in the
application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and
applied immediately before such change shall have become effective until such notice shall have
been withdrawn or such provision amended in accordance herewith.



     Section 1.03. Pro Forma Calculations. All computations required to be made hereunder to
demonstrate pro forma compliance with any covenant after giving effect to any acquisition,
investment, sale, disposition or similar event shall reflect on a pro forma basis such event and,
to the extent applicable, the historical earnings and cash flows associated with the assets
acquired or disposed of and any related incurrence or reduction of Indebtedness, but shall not take
into account any projected synergies or similar benefits expected to be realized as a result of
such event; provided that projected synergies or similar benefits may be included to the extent
permitted to be recognized in pro forma statements prepared in accordance with Regulation S-X under
the Securities Act.



ARTICLE 2

The Credits




     Section 2.01. Commitments. Subject to the terms and conditions and relying upon the
representations and warranties herein set forth, each Lender agrees, severally and not jointly, to
make Loans to the Borrower from time to time during the Availability Period in an aggregate
principal amount not to exceed its Commitment at such time. Amounts paid or prepaid in respect of
Loans may not be reborrowed.



     Section 2.02. Loans. (a) Each Loan shall be made as part of a Borrowing consisting of
Loans made by the Lenders ratably in accordance with their applicable Commitments; provided,
however, that the failure of any Lender to make any Loan shall not in itself relieve any other
Lender of its obligation to lend hereunder (it being understood, however, that no Lender shall be
responsible for the failure of any other Lender to make any Loan required to be made by such other
Lender). The Loans comprising any Borrowing shall be in an aggregate principal amount that is (i)
an integral multiple of $1,000,000 and not less than $1,000,000 or (ii) equal to the remaining
available balance of the Commitment.



     (b) Subject to Sections 2.08 and 2.15, each Borrowing shall be comprised entirely of ABR Loans
or Eurodollar Loans as the Borrower may



29









 







request pursuant to Section 2.03. Each Lender may at its option make any Eurodollar Loan by
causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that
any exercise of such option shall not affect the obligation of the Borrower to repay such Loan in
accordance with the terms of this Agreement. Borrowings of more than one Type may be outstanding
at the same time; provided, however, that the Borrower shall not be entitled to request any
Borrowing that, if made, would result in more than four Eurodollar Borrowings being outstanding
hereunder at any time. For purposes of the foregoing, Borrowings having different Interest
Periods, regardless of whether they commence on the same date, shall be considered separate
Borrowings.



     (c) Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof
by wire transfer of immediately available funds to such account in New York City as the
Administrative Agent may designate not later than 12:00 (noon), New York City time, and the
Administrative Agent shall promptly credit the amounts so received to an account in the name of the
Borrower designated by the Borrower in the applicable Borrowing Request or, if a Borrowing shall
not occur on such date because any condition precedent herein specified shall not have been met,
return the amounts so received to the respective Lenders.



     (d) Unless the Administrative Agent shall have received notice from a Lender prior to the date
of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s
portion of such Borrowing, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the date of such Borrowing in accordance with
paragraph (c) above and the Administrative Agent may, in reliance upon such assumption, make
available to the Borrower on such date a corresponding amount. If the Administrative Agent shall
have so made funds available then, to the extent that such Lender shall not have made such portion
available to the Administrative Agent, such Lender and the Borrower severally agree to repay to the
Administrative Agent forthwith on demand such corresponding amount together with interest thereon
for each day from the date such amount is made available to the Borrower until the date such amount
is repaid to the Administrative Agent at (i) in the case of the Borrower, a rate per annum equal to
the interest rate applicable at the time to the Loans comprising such Borrowing (which payment
shall not constitute a waiver of, or otherwise adversely affect, the Borrower’s rights against the
Lender, if any) and (ii) in the case of such Lender, a rate determined by the Administrative Agent
to represent its cost of overnight or short-term funds (which determination shall be conclusive
absent manifest error). If such Lender shall repay to the Administrative Agent such corresponding
amount, such amount shall constitute such Lender’s Loan as part of such Borrowing for purposes of
this Agreement.



     (e) Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled
to request any Borrowing or the conversion or



30









 







continuation of any Borrowing if the Interest Period requested with respect thereto would end
after the Maturity Date.



     Section 2.03. Borrowing Procedure. In order to request a Borrowing, the Borrower shall
notify the Administrative Agent of such request by telephone (a) in the case of a Eurodollar
Borrowing, not later than 12:00 (noon), New York City time, three Business Days before a proposed
Borrowing, and (b) in the case of an ABR Borrowing, not later than 12:00 (noon), New York City
time, one Business Day before a proposed Borrowing; provided that the Borrower shall not be
entitled to request Loans on more than three occasions in the aggregate. Each such telephonic
Borrowing Request shall be irrevocable, and shall be confirmed promptly by hand delivery or fax to
the Administrative Agent of a written Borrowing Request and shall specify the following
information: (i) whether such Borrowing is to be a Eurodollar Borrowing or an ABR Borrowing
(provided that, until the Administrative Agent shall have notified the Borrower that the primary
syndication of the Term Facility has been completed (which notice shall be given as promptly as
practicable and, in any event, within 30 days after the Closing Date), the Borrower shall not be
permitted, without the prior written consent of the Administrative Agent, to request a Eurodollar
Borrowing with an Interest Period in excess of one month); (ii) the date of such Borrowing (which
shall be a Business Day); (iii) the number and location of the account to which funds are to be
disbursed; (iv) the amount of such Borrowing; and (v) if such Borrowing is to be a Eurodollar
Borrowing, the Interest Period with respect thereto; provided, however, that, notwithstanding any
contrary specification in any Borrowing Request, each requested Borrowing shall comply with the
requirements set forth in Section 2.02. If no election as to the Type of Borrowing is specified in
any such notice, then the requested Borrowing shall be an ABR Borrowing. If no Interest Period
with respect to any Eurodollar Borrowing is specified in any such notice, then the Borrower shall
be deemed to have selected an Interest Period of one month’s duration. The Administrative Agent
shall promptly advise the applicable Lenders of any notice given pursuant to this Section 2.03 (and
the contents thereof), and of each Lender’s portion of the requested Borrowing.



     Section 2.04. Evidence of Debt; Repayment of Loans. (a) The Borrower hereby unconditionally
promises to pay to the Administrative Agent for the account of each Lender the principal amount of
each Loan of such Lender as provided in Section 2.11.



     (b) Each Lender shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such
Lender from time to time, including the amounts of principal and interest payable and paid to such
Lender from time to time under this Agreement.



     (c) The Administrative Agent shall maintain accounts in which it will record (i) the amount of
each Loan made hereunder, the Type thereof and, if applicable, the Interest Period applicable
thereto, (ii) the amount of any principal



31









 







or interest due and payable or to become due and payable from the Borrower to each Lender
hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder from the
Borrower or any Guarantor and each Lender’s share thereof.



     (d) The entries made in the accounts maintained pursuant to paragraphs (b) and (c) above shall
be prima facie evidence of the existence and amounts of the obligations therein recorded; provided,
however, that the failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of the Borrower to repay the Loans
in accordance with their terms.



     (e) Any Lender may request that Loans made by it hereunder be evidenced by a promissory note.
In such event, the Borrower shall prepare, execute and deliver to such Lender a promissory note
payable to such Lender and its registered assigns and in a form and substance reasonably acceptable
to the Administrative Agent and the Borrower. Notwithstanding any other provision of this
Agreement, in the event any Lender shall request and receive such a promissory note, the interests
represented by such note shall at all times (including after any assignment of all or part of such
interests pursuant to Section 9.04) be represented by one or more promissory notes payable to the
payee named therein or its registered assigns.



     Section 2.05. Fees. (a) The Borrower agrees to pay to each Lender, through the
Administrative Agent, on the last Business Day of March, June, September and December (commencing
with March, 2009) in each year and on each date on which any Commitment of such Lender shall expire
or be terminated as provided herein, a delayed draw fee (a “Delayed Draw Fee”) equal to
5.00% per annum on the daily amount of the Commitment of such Lender during the preceding quarter
(or other period commencing with the Closing Date or ending with the date on which the Commitment
of such Lender shall expire or be terminated); provided that any Delayed Draw Fee owing to a Lender
which is a Defaulting Lender may be withheld by the Administrative Agent in its sole discretion for
so long as such Lender remains a Defaulting Lender. All Delayed Draw Fees shall be computed on the
basis of the actual number of days elapsed in a year of 360 days.



     (b) The Borrower agrees to pay to the Administrative Agent, for its own account, the
administrative fees set forth in the Fee Letter at the times and in the amounts specified therein
(the “Administrative Agent Fees”).



     (c) All Fees shall be paid on the dates due, in immediately available funds, to the
Administrative Agent for distribution, if and as appropriate, among the Lenders. Once paid, none
of the Fees shall be refundable under any circumstances.



32









 





     Section 2.06. Interest on Loans. (a) Subject to the provisions of Section 2.07, the Loans
comprising each ABR Borrowing shall bear interest (computed on the basis of the actual number of
days elapsed over a year of 360 days and calculated from and including the date of such Borrowing
to but excluding the date of repayment thereof) at a rate per annum equal to the Alternate Base
Rate plus the Applicable Percentage.



     (b) Subject to the provisions of Section 2.07, the Loans comprising each Eurodollar Borrowing
shall bear interest (computed on the basis of the actual number of days elapsed over a year of 360
days) at a rate per annum equal to the Adjusted LIBO Rate for the Interest Period in effect for
such Borrowing plus the Applicable Percentage.



     (c) Interest on each Loan shall be payable on the Interest Payment Dates applicable to such
Loan except as otherwise provided in this Agreement. The applicable Alternate Base Rate for any
day or Adjusted LIBO Rate for each Interest Period or day within an Interest Period, as the case
may be, shall be determined by the Administrative Agent, and such determination shall be conclusive
absent manifest error.



     Section 2.07. Default Interest. If (a) the Borrower shall default in the payment of any
principal of or interest on any Loan or any other amount due hereunder or under any other Loan
Document, by acceleration or otherwise, (b) if any event described in paragraphs (g) or (h) of
Article 7 shall occur or (c) if any Event of Default under Article 7 (other than paragraphs (b),
(c), (g) or (h) thereunder) has occurred and is continuing and the Required Lenders so vote, then,
in the case of clause (a) above, until such defaulted amount shall have been paid in full, in the
case of clause (b) above, which such event is continuing or, in the case of clause (c) above, from
the date such vote has been exercised by the Required Lenders and for so long as such Event of
Default is continuing, to the extent permitted by law, all amounts outstanding under this Agreement
and the other Loan Documents shall bear interest (after as well as before judgment), payable on
demand, (i) in the case of principal, at the rate otherwise applicable to such Loan pursuant to
Section 2.06 plus 2.00% per annum and (ii) in all other cases, at a rate per annum (computed on the
basis of the actual number of days elapsed over a year of 360 days) equal to the rate that would be
applicable to an ABR Loan plus 2.00% per annum.



     Section 2.08. Alternate Rate of Interest. In the event, and on each occasion, that on the
day two Business Days prior to the commencement of any Interest Period for a Eurodollar Borrowing
the Administrative Agent shall have determined that Dollar deposits in the principal amounts of the
Loans comprising such Borrowing are not generally available in the London interbank market, or
Lenders whose Loans to be included in such Borrowing aggregate at least 51% thereof advise the
Administrative Agent that the Adjusted LIBO Rate for such Interest Period will not adequately and
fairly reflect the cost to such Lenders of making or maintaining Eurodollar Loans during such
Interest Period, or if the



33









 








Administrative Agent shall have determined that reasonable means do not exist for ascertaining
the Adjusted LIBO Rate, the Administrative Agent shall, as soon as practicable thereafter, give
written or fax notice of such determination to the Borrower and the Lenders. In the event of any
such determination, until the Administrative Agent shall have advised the Borrower and the Lenders
that the circumstances giving rise to such notice no longer exist, any request by the Borrower for
a Eurodollar Borrowing pursuant to Section 2.03 or Section 2.10 shall be deemed to be a request for
an ABR Borrowing. Each determination by the Administrative Agent under this Section 2.08 shall be
conclusive absent manifest error.



     Section 2.09. Termination and Reduction of Commitments. (a) The Commitments shall
automatically terminate on the last day of the Availability Period. Notwithstanding the foregoing,
all the Commitments shall automatically terminate at 5:00 p.m., New York City time, on February 15,
2009, if the first Credit Event shall not have occurred by such time in accordance with Section
4.01 and 4.02. The Commitment of each Lender shall automatically be reduced on the date of each
Loan by such Lender in an amount equal to the principal amount of such Loan. If on any date that a
repayment is required to be made pursuant to Section 2.11 or a mandatory prepayment is required to
be made pursuant to Section 2.13 the aggregate principal amount of the required payment or
prepayment exceeds the aggregate principal amount of outstanding Loans, then the Commitments (if
any) shall be automatically reduced by an amount equal to the lesser of the amount of the
Commitments and the amount of such excess.



     (b) Upon at least three Business Days’ prior irrevocable written or fax notice to the
Administrative Agent, the Borrower may at any time in whole permanently terminate, or from time to
time in part permanently reduce, the Commitments; provided, however, that each partial reduction of
the Commitments shall be in an integral multiple of $1,000,000 and in a minimum amount of
$5,000,000.



     (c) Except with respect to any reduction pursuant to the penultimate sentence of Section
2.09(a), each reduction in the Commitments hereunder shall be made ratably among the Lenders in
accordance with their respective applicable Commitments. The Borrower shall pay to the
Administrative Agent for the account of the applicable Lenders, on the date of each termination or
reduction, the Delayed Draw Fees on the amount of the Commitments so terminated or reduced accrued
to but excluding the date of such termination or reduction.



     Section 2.10 . Conversion and Continuation of Borrowings. The Borrower shall have the right
at any time upon prior irrevocable notice to the Administrative Agent (a) not later than 12:00
(noon), New York City time, one Business Day prior to conversion, to convert any Eurodollar
Borrowing into an ABR Borrowing, (b) not later than 12:00 (noon), New York City time, three
Business Days prior to conversion or continuation, to convert any ABR Borrowing into a Eurodollar
Borrowing or to continue any Eurodollar Borrowing



34









 







as a Eurodollar Borrowing for an additional Interest Period, and (c) not later than 12:00
(noon), New York City time, three Business Days prior to conversion, to convert the Interest Period
with respect to any Eurodollar Borrowing to another permissible Interest Period, subject in each
case to the following:




     (i) until the Administrative Agent shall have notified the Borrower that the primary
syndication of the Term Facility has been completed (which notice shall be given as
promptly as practicable and, in any event, within 30 days after the Closing Date), no ABR
Borrowing may be converted into a Eurodollar Borrowing with an Interest Period in excess
of one month without the prior written consent of the Administrative Agent;




     (ii) each conversion or continuation shall be made pro rata among the Lenders in
accordance with the respective principal amounts of the Loans comprising the converted or
continued Borrowing;




     (iii) if less than all the outstanding principal amount of any Borrowing shall be
converted or continued, then each resulting Borrowing shall satisfy the limitations
specified in Sections 2.02(a) and 2.02(b) regarding the principal amount and maximum
number of Borrowings of the relevant Type;




     (iv) each conversion shall be effected by each Lender and the Administrative Agent by
recording for the account of such Lender the new Loan of such Lender resulting from such
conversion and reducing the Loan (or portion thereof) of such Lender being converted by an
equivalent principal amount; accrued interest on any Eurodollar Loan (or portion thereof)
being converted shall be paid by the Borrower at the time of conversion;




     (v) if any Eurodollar Borrowing is converted at a time other than the end of the
Interest Period applicable thereto, the Borrower shall pay, upon demand, any amounts due
to the Lenders pursuant to Section 2.16;




     (vi) any portion of a Borrowing maturing or required to be repaid in less than one
month may not be converted into or continued as a Eurodollar Borrowing;




     (vii) any portion of a Eurodollar Borrowing that cannot be converted into or
continued as a Eurodollar Borrowing by reason of the immediately preceding clause shall be
automatically converted at the end of the Interest Period in effect for such Borrowing
into an ABR Borrowing;




     (viii) no Interest Period may be selected for any Eurodollar Borrowing that would (a)
cause there to be more than four different



35









 







Interest Periods applicable to the Eurodollar Borrowings at such time after giving
effect to the selection of such Interest Period or (b) end later than a Repayment Date
occurring on or after the first day of such Interest Period if, after giving effect to
such selection, the aggregate outstanding amount of (A) the Eurodollar Borrowings
comprised of Loans with Interest Periods ending on or prior to such Repayment Date and (B)
the ABR Borrowings would not be at least equal to the principal amount of Borrowings to be
paid on such Repayment Date; and




     (ix) upon notice to the Borrower from the Administrative Agent given at the request
of the Required Lenders, after the occurrence and during the continuance of a Default or
Event of Default, no outstanding Loan may be converted into, or continued as, a Eurodollar
Loan.



     Each notice pursuant to this Section 2.10 shall be irrevocable and shall refer to this
Agreement and specify (i) the identity and amount of the Borrowing that the Borrower requests be
converted or continued, (ii) whether such Borrowing is to be converted to or continued as a
Eurodollar Borrowing or an ABR Borrowing, (iii) if such notice requests a conversion, the date of
such conversion (which shall be a Business Day) and (iv) if such Borrowing is to be converted to or
continued as a Eurodollar Borrowing, the Interest Period with respect thereto. If no Interest
Period is specified in any such notice with respect to any conversion to or continuation as a
Eurodollar Borrowing, the Borrower shall be deemed to have selected an Interest Period of one
month’s duration. The Administrative Agent shall advise the Lenders of any notice given pursuant
to this Section 2.10 and of each Lender’s portion of any converted or continued Borrowing. If the
Borrower shall not have given notice in accordance with this Section 2.10 to continue any Borrowing
into a subsequent Interest Period (and shall not otherwise have given notice in accordance with
this Section 2.10 to convert such Borrowing), such Borrowing shall, at the end of the Interest
Period applicable thereto (unless repaid pursuant to the terms hereof), automatically be continued
as an ABR Borrowing.



     Section 2.11. Repayment of Borrowings. (a) The Borrower shall pay to the Administrative
Agent, for the account of the Lenders, on the dates set forth below, or if any such date is not a
Business Day, on the next preceding Business Day (each such date being called a “Repayment
Date”), a principal amount of the Loans (as adjusted from time to time pursuant to Sections
2.12 and Section 2.13(g)) equal to the amount set forth below for such date, together in each case
with accrued and unpaid interest on the principal amount to be paid to but excluding the date of
such payment:



	 	 	 	 	 
	Repayment Date	 	Amount
	March 31, 2009
	 	$	7,500,000	 
	June 30, 2009
	 	$	7,500,000	 
	September 30, 2009
	 	$	7,500,000	 
	December 31, 2009
	 	$	7,500,000	 






36









 






	 	 	 	 	 
	Repayment Date	 	Amount
	March 31, 2010
	 	$	10,000,000	 
	June 30, 2010
	 	$	10,000,000	 
	September 30, 2010
	 	$	10,000,000	 
	December 31, 2010
	 	$	10,000,000	 
	March 31, 2011
	 	$	10,000,000	 
	June 30, 2011
	 	$	10,000,000	 
	September 30, 2011
	 	$	10,000,000	 
	December 31, 2011
	 	$	10,000,000	 
	March 31, 2012
	 	$	22,500,000	 
	June 30, 2012
	 	$	22,500,000	 
	September 30, 2012
	 	$	22,500,000	 
	Maturity Date
	 	$	22,500,000	 






     (b) In the event and on each occasion that the Commitments shall be reduced or shall expire or
terminate other than as a result of the making of a Term Loan, the installments payable on each
Repayment Date shall be reduced pro rata by an aggregate amount equal to the amount of such
reduction, expiration or termination.



     (c) To the extent not previously paid, all Loans shall be due and payable on the Maturity
Date, together with accrued and unpaid interest on the principal amount to be paid to but excluding
the date of payment.



     (d) All repayments pursuant to this Section 2.11 shall be subject to Section 2.16, but shall
otherwise be without premium or penalty.



     Section 2.12. Voluntary Prepayment. (a) The Borrower shall have the right at any time and
from time to time to prepay any Borrowing, in whole or in part, upon at least three Business Days’
prior written or fax notice (or telephone notice promptly confirmed by written or fax notice) in
the case of Eurodollar Loans, or written or fax notice (or telephone notice promptly confirmed by
written or fax notice) at least one Business Day prior to the date of prepayment in the case of ABR
Loans, to the Administrative Agent before 12:00 (noon), New York City time; provided, however, that
each partial prepayment shall be in an amount that is an integral multiple of $1,000,000 and not
less than $1,000,000.



     (b) Voluntary prepayments of outstanding Loans under this Agreement shall be applied pro rata
against the remaining scheduled installments of principal due in respect of the Loans under Section
2.11(a).



     (c) Each notice of prepayment shall specify the prepayment date and the principal amount of
each Borrowing (or portion thereof) to be prepaid, shall be irrevocable and shall commit the
Borrower to prepay such Borrowing by the amount stated therein on the date stated therein;
provided, however, that if such prepayment is for all of the then outstanding Loans, then the
Borrower may revoke such notice and/or extend the prepayment date by not more than five



37









 







Business Days; provided further, however, that the provisions of Section 2.16 shall apply with
respect to any such revocation or extension. All prepayments under this Section 2.12 shall be
subject to Section 2.16 but otherwise without premium or penalty. All prepayments under this
Section 2.12 shall be accompanied by accrued and unpaid interest on the principal amount to be
prepaid to but excluding the date of payment.



     Section 2.13. Mandatory Prepayments. (a) Substantially simultaneously with (and in any
event not later than the third Business Day following) the receipt by the Borrower or any
Subsidiary of Net Cash Proceeds from any Asset Sale, the Borrower shall apply an amount equal to
(i) the Specified Share multiplied by (ii) the amount of such Net Cash Proceeds to prepay
outstanding Loans in accordance with Section 2.13(g).



     (b) Substantially simultaneously with (and in any event not later than the third Business Day
following) the receipt by the Borrower or any Subsidiary of Net Cash Proceeds from any Equity
Issuance, the Borrower shall apply an amount equal to 50% of such Net Cash Proceeds to prepay
outstanding Loans in accordance with Section 2.13(g).



     (c) No later than the earlier of (such earlier date, the “Excess Cash Flow Prepayment
Date”) (i) 90 days after the end of each fiscal year of the Borrower, commencing with the
fiscal year ending on December 31, 2009, and (ii) the date on which the financial statements with
respect to such period are delivered pursuant to Section 5.04(a), the Borrower shall prepay
outstanding Loans in accordance with Section 2.13(g) in an aggregate principal amount equal to 50%
of Excess Cash Flow for the fiscal year then ended; provided that the percentage referred to above
shall be reduced to 25% if (1) the Leverage Ratio at the end of such fiscal year is less than 1.75
to 1.0 and (2) no Default or Event of Default shall have occurred and be continuing on the Excess
Cash Flow Prepayment Date.



     (d) Substantially simultaneously with (and in any event not later than the third Business Day
following) the receipt by the Borrower or any Subsidiary of Net Cash Proceeds from the issuance or
incurrence of Indebtedness for money borrowed (other than any cash proceeds from the issuance of
Indebtedness for money borrowed permitted pursuant to Section 6.01), the Borrower shall apply an
amount equal to 100% of such Net Cash Proceeds to prepay outstanding Loans in accordance with
Section 2.13(g).



     (e) Substantially simultaneously with (and in any event not later than the third Business Day
following) the receipt by the Borrower or any Subsidiary of Net Cash Proceeds from any ARS
Liquidation Event, the Borrower shall apply an amount equal to (i) the Specified Share multiplied
by (ii) the amount of such Net Cash Proceeds to prepay outstanding Loans in accordance with Section
2.13(g).



38









 





     (f) Substantially simultaneously with (and in any event not later than the third Business Day
following) the receipt by the Borrower or any Subsidiary of Net Cash Proceeds from any
Extraordinary Receipt, the Borrower shall apply an amount equal to 100% of such Net Cash Proceeds
to prepay outstanding Loans in accordance with Section 2.13(g).



     (g) Mandatory prepayments pursuant to paragraphs (a) through (f) of this Section shall be
applied as follows:




     (i) first, to the Loans and applied pro rata against the remaining scheduled
installments of principal due in respect of the Loans under Section 2.11(a), subject to
the proviso to this paragraph below; and




     (ii) second, any remaining amounts may be retained by the Borrower;


provided that, notwithstanding anything herein to the contrary, any Lender may elect, by notice to
the Administrative Agent by facsimile or by e-mail within one Business Day of receiving
notification from the Administrative Agent of any prepayment of its Loans, to decline (in whole but
not in part) such prepayment pursuant to paragraphs (a) through (f) of this Section, in which case
the aggregate amount of the prepayment that would have been applied to prepay the Loans of such
declining Lender may be retained by the Borrower. Mandatory prepayments in respect of the Loans
shall be applied on a pro rata basis to the then outstanding Loans being prepaid irrespective of
whether such outstanding Loans are ABR Loans or Eurodollar Loans; provided that if no Lenders
exercise the right to waive a given mandatory prepayment of the Loans pursuant to this Section,
then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be
applied first to Loans that are ABR Loans to the full extent thereof before application to Loans
that are Eurodollar Loans in a manner that minimizes the amount of any payments required to be made
by the Borrower pursuant to Section 2.16.




     (h) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment
required under this Section 2.13, a certificate signed by a Financial Officer of the Borrower
setting forth in reasonable detail the calculation of the amount of such prepayment. The Borrower
shall provide at least three days prior written notice of such prepayment, specifying the
prepayment date, the Type of each Loan being prepaid and the principal amount of each Loan (or
portion thereof) to be prepaid. All prepayments of Borrowings under this Section 2.13 shall be
subject to Section 2.16, but shall otherwise be without premium or penalty, and shall be
accompanied by accrued and unpaid interest on the principal amount to be prepaid to but excluding
the date of payment.



     Section 2.14. Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other
provision of this Agreement, if any Change in Law shall impose, modify or deem applicable any
reserve, special deposit or similar



39









 







requirement against assets of, deposits with or for the account of or credit extended by any
Lender (except any such reserve requirement which is reflected in the Adjusted LIBO Rate) or shall
impose on such Lender or the London interbank market any other condition affecting this Agreement
or Eurodollar Loans made by such Lender, and the result of any of the foregoing shall be to
increase the cost to such Lender of making or maintaining any Eurodollar Loan or to reduce the
amount of any sum received or receivable by such Lender hereunder (whether of principal, interest
or otherwise) by an amount determined in good faith by such Lender to be material, then the
Borrower will pay to such Lender upon demand such additional amount or amounts as will compensate
such Lender for such additional costs incurred or reduction suffered.



     (b) If any Lender shall have determined that any Change in Law regarding capital adequacy has
or would have the effect of reducing the rate of return on such Lender’s capital or on the capital
of such Lender’s holding company, if any, as a consequence of this Agreement or the Loans made
pursuant hereto to a level below that which such Lender or such Lender’s holding company could have
achieved but for such Change in Law (taking into consideration such Lender’s policies and the
policies of such Lender’s holding company with respect to capital adequacy) by an amount deemed by
such Lender to be material, then from time to time the Borrower shall pay to such Lender such
additional amount or amounts as will compensate such Lender or such Lender’s holding company for
any such reduction suffered.



     (c) A certificate of a Lender setting forth the amount or amounts necessary to compensate such
Lender or its holding company, as applicable, as specified in paragraph (a) or (b) above, together
with an explanation in reasonable detail, shall be delivered to the Borrower and shall be
conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on
any such certificate delivered by it within 15 days after its receipt of the same.



     (d) Failure or delay on the part of any Lender to demand compensation for any increased costs
or reductions in amounts received or receivable or reduction in return on capital shall not
constitute a waiver of such Lender’s right to demand such compensation; provided that the Borrower
shall not be under any obligation to compensate any Lender under paragraph (a) or (b) above with
respect to increased costs or reductions with respect to any period prior to the date that is 90
days prior to such request if such Lender knew or could reasonably have been expected to know of
the circumstances giving rise to such increased costs or reductions and of the fact that such
circumstances would result in a claim for increased compensation by reason of such increased costs
or reductions; provided further that the foregoing limitation shall not apply to any increased
costs or reductions arising out of the retroactive application of any Change in Law within such
90-day period. The protection of this Section shall be available to each Lender regardless of any
possible contention of the invalidity or inapplicability of the Change in Law that shall have
occurred or been imposed.



40









 





     Section 2.15. Change in Legality. (a) Notwithstanding any other provision of this
Agreement, if any Change in Law shall make it unlawful for any Lender to make or maintain any
Eurodollar Loan or to give effect to its obligations as contemplated hereby with respect to any
Eurodollar Loan, then, by written notice to the Borrower and to the Administrative Agent:




     (i) such Lender may declare that Eurodollar Loans will not thereafter (for the
duration of such unlawfulness) be made by such Lender hereunder (or be continued for
additional Interest Periods) and ABR Loans will not thereafter (for such duration) be
converted into Eurodollar Loans, whereupon any request for a Eurodollar Borrowing (or to
convert an ABR Borrowing to a Eurodollar Borrowing or to continue a Eurodollar Borrowing
for an additional Interest Period) shall, as to such Lender only, be deemed a request for
an ABR Loan (or a request to continue an ABR Loan or to convert a Eurodollar Loan into an
ABR Loan, as the case may be), unless such declaration shall be subsequently withdrawn;
and




     (ii) such Lender may require that all outstanding Eurodollar Loans made by it be
converted to ABR Loans, in which event all such Eurodollar Loans shall be automatically
converted to ABR Loans as of the effective date of such notice as provided in paragraph
(b) below.


In the event any Lender shall exercise its rights under clause (i) or (ii) above, all payments and
prepayments of principal that would otherwise have been applied to repay the Eurodollar Loans that
would have been made by such Lender or the converted Eurodollar Loans of such Lender shall instead
be applied to repay the ABR Loans made by such Lender in lieu of, or resulting from the conversion
of, such Eurodollar Loans.




     (b) For purposes of this Section 2.15, a notice to the Borrower by any Lender shall be
effective as to each Eurodollar Loan made by such Lender, if lawful, on the last day of the
Interest Period then applicable to such Eurodollar Loan; in all other cases such notice shall be
effective on the date of receipt by the Borrower.



     Section 2.16. Breakage. The Borrower shall indemnify each Lender against any actual loss or
expense that such Lender may sustain or incur as a consequence of (a) any event, other than a
default by such Lender in the performance of its obligations hereunder, which results in (i) such
Lender receiving or being deemed to receive any amount on account of the principal of any
Eurodollar Loan prior to the end of the Interest Period in effect therefor, (ii) the conversion of
any Eurodollar Loan to an ABR Loan, or the conversion of the Interest Period with respect to any
Eurodollar Loan, in each case other than on the last day of the Interest Period in effect therefor,
or (iii) any Eurodollar Loan to be made by such Lender (including any Eurodollar Loan to be made
pursuant to a conversion or continuation under Section 2.10) not being made after notice of such
Loan shall have been given by the Borrower hereunder (any of the events



41









 







referred to in this clause (a) being called a “Breakage Event”) or (b) any default in
the making of any payment or prepayment of any Eurodollar Loan required to be made hereunder. In
the case of any Breakage Event, such actual loss shall include an amount equal to the excess, as
reasonably determined by such Lender, of (i) its actual cost (which may be determined by such
Lender by any reasonable method) of obtaining funds for the Eurodollar Loan that is the subject of
such Breakage Event for the period from the date of such Breakage Event to the last day of the
Interest Period in effect (or that would have been in effect) for such Loan over (ii) the amount of
interest likely to be realized by such Lender in redeploying the funds released or not utilized by
reason of such Breakage Event for such period. A certificate of any Lender setting forth any
amount or amounts which such Lender is entitled to receive pursuant to this Section 2.16, together
with an explanation in reasonable detail, shall be delivered to the Borrower. In determining any
additional amounts owing under this Section 2.16, each Lender will act reasonably and in good
faith; provided that such Lender’s determination of compensation owing under this Section 2.16
shall, absent manifest error, unreasonableness or bad faith, be final and conclusive and binding on
all parties hereto.



     Section 2.17. Pro Rata Treatment. Subject to the express provisions of this Agreement which
require, or permit, differing payments to be made to non-Defaulting Lenders as opposed to
Defaulting Lenders, and as required under Section 2.15, and other than with respect to any
prepayment rejected by any Lender in accordance with Section 2.13(g), each Borrowing, each payment
or prepayment of principal of any Borrowing, each payment of interest on the Loans, each payment of
the Delayed Draw Fees, each reduction of the Commitments (except in accordance with the penultimate
sentence of Section 2.09(a)) and each conversion of any Borrowing to or continuation of any
Borrowing as a Borrowing of any Type shall be allocated pro rata among the Lenders in accordance
with their respective applicable Commitments and Loans. Each Lender agrees that in computing such
Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its
discretion, round each Lender’s percentage of such Borrowing to the next higher or lower whole
Dollar amount. Notwithstanding the foregoing, the provisions of this Section 2.17 shall not apply
to any payment obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans to any assignee or participant.



     Section 2.18. Sharing of Setoffs. Each Lender agrees that if it shall, through the exercise
of a right of banker’s lien, setoff or counterclaim against the Borrower or any other Loan Party,
or pursuant to a secured claim under Section 506 of Title 11 of the United States Code or other
security or interest arising from, or in lieu of, such secured claim, received by such Lender under
any applicable bankruptcy, insolvency or other similar law or otherwise, or by any other means,
obtain payment (voluntary or involuntary) in respect of any Loan or Loans as a result of which the
unpaid principal portion of its Loans shall be proportionately less than the unpaid principal
portion of the Loans of any other Lender, it shall be



42









 







deemed simultaneously to have purchased from such other Lender at face value, and shall
promptly pay to such other Lender the purchase price for, a participation in the Loans of such
other Lender, so that the aggregate unpaid principal amount of the Loans and participations in
Loans held by each Lender shall be in the same proportion to the aggregate unpaid principal amount
of all Loans then outstanding as the principal amount of its Loans prior to such exercise of
banker’s lien, setoff or counterclaim or other event was to the principal amount of all Loans
outstanding prior to such exercise of banker’s lien, setoff or counterclaim or other event;
provided, however, that (a) if any such purchase or purchases or adjustments shall be made pursuant
to this Section 2.18 and the payment giving rise thereto shall thereafter be recovered, such
purchase or purchases or adjustments shall be rescinded to the extent of such recovery and the
purchase price or prices or adjustment restored without interest, and (b) the provisions of this
Section 2.18 shall not be construed to apply to any payment made by the Borrower pursuant to and in
accordance with the express terms of this Agreement or any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its Loans to any assignee
or participant. The Borrower expressly consents to the foregoing arrangements and agrees that any
Lender holding a participation in a Loan deemed to have been so purchased may exercise any and all
rights of banker’s lien, setoff or counterclaim with respect to any and all moneys owing by the
Borrower to such Lender by reason thereof as fully as if such Lender had made a Loan directly to
the Borrower in the amount of such participation.



     Section 2.19. Payments. (a) The Borrower shall make each payment (including principal of or
interest on any Borrowing or any Fees or other amounts) hereunder and under any other Loan Document
not later than 12:00 (noon), New York City time, on the date when due in immediately available
Dollars, without setoff, defense or counterclaim. Any amounts received after such time on any date
may, in the discretion of the Administrative Agent, be deemed to have been received on the next
succeeding Business Day for purposes of calculating interest thereon. Each such payment shall be
made to the Administrative Agent at its offices at Eleven Madison Avenue, New York, NY 10010, or as
otherwise directed. The Administrative Agent shall promptly distribute to each Lender any payments
received by the Administrative Agent on behalf of such Lender.



     (b) Except as otherwise expressly provided herein, whenever any payment (including principal
of or interest on any Borrowing or any Fees or other amounts) hereunder or under any other Loan
Document shall become due, or otherwise would occur, on a day that is not a Business Day, such
payment may be made on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of interest or Fees, if applicable.



     (c) If at any time insufficient funds are received by and available to the Administrative
Agent to pay fully all amounts of principal, interest and Fees then due hereunder, such funds shall
be applied (i) first, towards payment of interest and Fees then due hereunder, ratably among the
parties entitled thereto in



43









 







accordance with the amounts of interest and Fees then due to such parties, and (ii) second,
towards payment of principal then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of principal then due to such parties.



     Section 2.20. Taxes. (a) Any and all payments by or on account of any obligation of the
Borrower or any other Loan Party hereunder or under any other Loan Document shall be made free and
clear of and without deduction for any Indemnified Taxes or Other Taxes; provided that, if the
Borrower or any other Loan Party shall be required to deduct any Indemnified Taxes or Other Taxes
from such payments, then (i) the sum payable shall be increased as necessary so that after making
all required deductions (including deductions applicable to additional sums payable under this
Section) the Administrative Agent and each Lender, as the case may be, receives an amount equal to
the sum it would have received had no such deductions been made, (ii) the Borrower or such Loan
Party shall make such deductions, and (iii) the Borrower or such Loan Party shall pay the full
amount deducted to the relevant Governmental Authority in accordance with applicable law.



     (b) In addition, the Borrower or any other Loan Party shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.



     (c) The Borrower or any other Loan Party shall indemnify the Administrative Agent and each
Lender within 10 days after written demand therefor, for the full amount of any Indemnified Taxes
or Other Taxes paid by the Administrative Agent or such Lender, as the case may be, on or with
respect to any payment by or on account of any obligation of the Borrower or any other Loan Party
hereunder or under any other Loan Document (including Indemnified Taxes or Other Taxes imposed or
asserted on or attributable to amounts payable under this Section) and any penalties, interest and
reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified
Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability delivered to the Borrower
by a Lender or by the Administrative Agent on its own behalf or on behalf of a Lender shall be
conclusive absent manifest error. The Administrative Agent or Lender may, at its sole reasonable
discretion, take such steps as the Borrower reasonably requests to assist the Borrower, at the
Borrower’s own expense, to minimize or, as applicable, recover such Indemnified Taxes or Other
Taxes.



     (d) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the
Borrower or any other Loan Party to a Governmental Authority, the Borrower shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued by such Governmental
Authority evidencing such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.



44









 





     (e) Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax
under the United States, or any treaty to which the United States is a party, with respect to
payments under this Agreement shall, after having received from the Borrower or any other Loan
Party notice of the availability of such exemptions from or reductions of withholding tax, as well
as all such appropriate documentation prescribed by applicable law, deliver to the Borrower (with a
copy to the Administrative Agent), at the time or times prescribed by applicable law, such properly
completed and executed documentation prescribed by applicable law or reasonably requested by the
Borrower or any other Loan Party as will permit such payments to be made without withholding or at
a reduced rate; provided that such Foreign Lender is lawfully able to do so and that complying with
such requirements would not require such Lender Party to disclose any confidential or proprietary
information or be otherwise materially disadvantageous to such Lender Party (in form, in procedure
or in the substance of information disclosed).



     Section 2.21. Assignment of Commitments Under Certain Circumstances; Duty to Mitigate. (a)
In the event (i) any Lender delivers a certificate requesting compensation pursuant to Section
2.14, (ii) any Lender delivers a notice described in Section 2.15, (iii) the Borrower is required
to pay any additional amount to any Lender or any Governmental Authority on account of any Lender
pursuant to Section 2.20, (iv) any Lender refuses to consent to any amendment, waiver or other
modification of any Loan Document requested by the Borrower that requires the consent of a greater
percentage of the Lenders than the Required Lenders and such amendment, waiver or other
modification is consented to by the Required Lenders, or (v) any Lender becomes a Defaulting
Lender, then, in each case, the Borrower may, at its sole expense and effort (including with
respect to the processing and recordation fee referred to in Section 9.04(b)), upon notice to such
Lender and the Administrative Agent, require such Lender to transfer and assign, without recourse
(in accordance with and subject to the restrictions contained in Section 9.04), all of its
interests, rights and obligations under this Agreement to an Eligible Assignee that shall assume
such assigned obligations and, with respect to clause (iv) above, shall consent to such requested
amendment, waiver or other modification of any Loan Documents (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (w) with respect to clause (i) to (iii)
above, such assignment will result in a reduction in the claim for compensation under Section 2.14
or in the withdrawal of the notice under Section 2.15 or in the reduction of payments under Section
2.20, as the case may be, (x) such assignment shall not conflict with any law, rule or regulation
or order of any court or other Governmental Authority having jurisdiction, (y) the Borrower shall
have received the prior written consent of the Administrative Agent, which consent shall not
unreasonably be withheld or delayed, and (z) the Borrower or such assignee shall have paid to the
affected Lender in immediately available funds an amount equal to the sum of the principal of and
interest accrued to the date of such payment on the outstanding Loans of such Lender plus all Fees
and other amounts accrued for the account of such Lender hereunder with



45









 







respect thereto (including any amounts under Sections 2.14 and 2.16); provided further that,
if prior to any such transfer and assignment (A) in the case of clauses (i) to (iii) above, the
circumstances or event that resulted in such Lender’s claim for compensation under Section 2.14,
notice under Section 2.15 or the amounts paid pursuant to Section 2.20, as the case may be, cease
to cause such Lender to suffer increased costs or reductions in amounts received or receivable or
reduction in return on capital, or cease to have the consequences specified in Section 2.15, or
cease to result in amounts being payable under Section 2.20, as the case may be (including as a
result of any action taken by such Lender pursuant to paragraph (b) below), or if such Lender shall
waive its right to claim further compensation under Section 2.14 in respect of such circumstances
or event or shall withdraw its notice under Section 2.15 or shall waive its right to further
payments under Section 2.20 in respect of such circumstances or event, (B) in the case of clause
(iv) above, such assigning Lender shall consent to the proposed amendment, waiver, consent or other
modification, and (C) in the case of clause (v) above, such assigning Lender shall cease to be a
Defaulting Lender as the case may be, then such Lender shall not thereafter be required to make any
such transfer and assignment hereunder. Each Lender hereby grants to the Administrative Agent an
irrevocable power of attorney (which power is coupled with an interest) to execute and deliver, on
behalf of such Lender, as assignor, any Assignment and Acceptance necessary to effectuate any
assignment of such Lender’s interests hereunder in the circumstances contemplated by this Section
2.21(a).



     (b) If (i) any Lender shall request compensation under Section 2.14, (ii) any Lender delivers
a notice described in Section 2.15 or (iii) the Borrower is required to pay any additional amount
to any Lender or any Governmental Authority on account of any Lender, pursuant to Section 2.20,
then such Lender shall use reasonable efforts (which shall not require such Lender to incur an
unreimbursed loss or unreimbursed cost or expense or otherwise take any action inconsistent with
its internal policies or legal or regulatory restrictions or suffer any disadvantage or burden
deemed by it to be significant) (x) to file any certificate or document reasonably requested in
writing by the Borrower or (y) to assign its rights and delegate and transfer its obligations
hereunder to another of its offices, branches or affiliates, if such filing or assignment would
reduce its claims for compensation under Section 2.14 or enable it to withdraw its notice pursuant
to Section 2.15 or would reduce amounts payable pursuant to Section 2.20, as the case may be, in
the future. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any
Lender in connection with any such filing or assignment, delegation and transfer.



ARTICLE 3

Representations and Warranties




     The Borrower represents and warrants to the Administrative Agent, the Collateral Agent and
each of the Lenders that:



46









 





     Section 3.01. Organization; Powers. The Borrower and each of the Domestic Subsidiaries and
Material Foreign Subsidiaries (a) is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, (b) has all requisite power and authority to own
its property and assets and to carry on its business as now conducted and as proposed to be
conducted, (c) is qualified to do business in, and is in good standing in, every jurisdiction where
such qualification is required, except where the failure so to qualify could not reasonably be
expected to result in a Material Adverse Effect, and (d) has the power and authority to execute,
deliver and perform its obligations under each of the Loan Documents and each other agreement or
instrument contemplated thereby to which it is or will be a party and, in the case of the Borrower,
to borrow hereunder.



     Section 3.02. Authorization. The Transactions have been duly authorized by all requisite
corporate and, if required, stockholder action. The Transactions will not (i) violate (A) any
provision of law, statute, rule or regulation, or of the certificate or articles of incorporation
or other constitutive documents or bylaws of the Borrower or any Subsidiary, (B) any order of any
Governmental Authority or (C) any provision of any indenture, agreement or other instrument to
which the Borrower or any Subsidiary is a party or by which any of them or any of their property is
or may be bound, (ii) be in conflict with, result in a breach of or constitute (alone or with
notice or lapse of time or both) a default under, or give rise to any right to accelerate or to
require the prepayment, repurchase or redemption of any obligation under any such indenture,
agreement or other instrument or (iii) result in the creation or imposition of any Lien upon or
with respect to any property or assets now owned or hereafter acquired by the Borrower or any
Subsidiary (other than any Lien created hereunder or under the Security Documents) except, with
respect to clauses (i)(C) and (ii), any defaults arising under any Indebtedness of the Target or
any subsidiary of the Target as a direct result of (i) the execution, delivery and performance by
the Borrower and the Merger Sub of the Merger Agreement and the consummation of the Merger and the
other transactions contemplated thereby or (ii) the consummation of the Tender Offer (together the
“Acquisition Transactions”), in each case to the extent that such defaults would not
reasonably be expected to have a Material Adverse Effect.



     Section 3.03. Enforceability. This Agreement has been duly executed and delivered by the
Borrower and constitutes, and each other Loan Document when executed and delivered by each Loan
Party party thereto will constitute, a legal, valid and binding obligation of the Borrower or such
Loan Party enforceable against the Borrower or such Loan Party in accordance with its terms.



     Section 3.04. Governmental Approvals. No action, consent or approval of, registration or
filing with or any other action by any Governmental Authority is or will be required in connection
with the Transactions, except (a) the filing of Uniform Commercial Code financing statements and
filings with the United States Patent and Trademark Office and the United States Copyright Office,
(b)



47









 







recordation of the Mortgages, (c) such as have been made or obtained and are in full force and
effect and (d) in the case of any such action required to be taken in connection with the
Acquisition Transactions, to the extent the failure to take any such action could not reasonably be
expected to have a Material Adverse Effect.



     Section 3.05. Financial Statements. (a) The Borrower has heretofore furnished to the
Lenders its consolidated balance sheets and related statements of income, stockholders’ equity and
cash flows (i) as of the end of and for each fiscal year in the three-fiscal year period ended
December 31, 2007, audited by and accompanied by the opinion of PricewaterhouseCoopers LLP,
independent public accountants, (ii) as of and for the fiscal quarter and the portion of the fiscal
year ended September 30, 2008, certified by its chief financial officer and (iii) as of and for the
fiscal months and the portion of the fiscal year ended after the date of the most recently ended
fiscal quarter and not less than 30 days prior to the Closing Date, certified by its chief
financial officer. Such financial statements present fairly in all material respects the financial
condition and results of operations and cash flows of the Borrower and its consolidated
Subsidiaries as of such dates and for such periods. Such balance sheets and the notes thereto
disclose all material liabilities, direct or contingent, of the Borrower and its consolidated
Subsidiaries as of the dates thereof. Such financial statements (other than such monthly financial
statements) were prepared in accordance with GAAP applied on a consistent basis and are in
compliance with the requirements of Regulation S-X under the Securities Act of 1933, as amended,
subject, in the case of unaudited financial statements, to year-end audit adjustments and the
absence of footnotes.



     (b) The Borrower has heretofore furnished to the Lenders the consolidated balance sheets and
related statements of income, stockholders’ equity and cash flows of the Target (i) as of the end
of and for each fiscal year in the three-fiscal year period ended December 31, 2007, audited by and
accompanied by the opinion of BDO Seidman, LLP, independent public accountants, (ii) as of and for
the fiscal quarter and the portion of the fiscal year ended September 30, 2008 and (iii) as of and
for the fiscal months and the portion of the fiscal year ended after the date of the most recently
ended fiscal quarter and not less than 30 days prior to the Closing Date. Such financial
statements present fairly in all material respects the financial condition and results of
operations and cash flows of the Target and its consolidated Subsidiaries as of such dates and for
such periods. Such balance sheets and the notes thereto disclose all material liabilities, direct
or contingent, of the Target and its consolidated Subsidiaries as of the dates thereof. Such
financial statements (other than such monthly financial statements) were prepared in accordance
with GAAP applied on a consistent basis and are in compliance with the requirements of
Regulation S-X under the Securities Act of 1933, as amended, subject, in the case of unaudited
financial statements, to year-end audit adjustments and the absence of footnotes.



     (c) The Borrower has heretofore delivered to the Lenders its unaudited pro forma consolidated
balance sheet and related pro forma statements of income,



48









 







stockholder’s equity and cash flows as of September 30, 2008, prepared giving effect to the
Transactions as if they had occurred, with respect to such balance sheet, on such date and, with
respect to such other financial statements, on the first day of the twelve-month period ending on
such date. Such pro forma financial statements have been prepared in good faith by the Borrower,
based on the assumptions used to prepare the pro forma financial information contained in the
Confidential Information Memorandum (which assumptions are believed by the Borrower on the Closing
Date to be reasonable), are based on the best information available to the Borrower as of the date
of delivery thereof, accurately reflect all adjustments required to be made to give effect to the
Transactions and present fairly in all material respects on a pro forma basis the estimated
consolidated financial position of the Borrower and its consolidated Subsidiaries as of such date
and for such period, assuming that the Transactions had actually occurred at such date or at the
beginning of such period, as the case may be.



     Section 3.06. No Material Adverse Change. (a) There has been no Material Adverse Effect
since December 31, 2007.



     (b) No Default or Event of Default has occurred and is continuing.



     Section 3.07. Title to Properties; Possession Under Leases. (a) The Borrower and each of
the Domestic Subsidiaries and Material Foreign Subsidiaries has good and marketable title to, or
valid leasehold interests in, or easements or other limited property rights in, or is licensed to
use, all its material properties and assets (including all Mortgaged Property), except for minor
defects in title that do not interfere with its ability to conduct its business as currently
conducted or to utilize such properties and assets for their intended purposes. All such material
properties and assets are free and clear of Liens, other than Liens expressly permitted by Section
6.02.



     (b) The Borrower and each of the Domestic Subsidiaries and Material Foreign Subsidiaries has
complied with all material obligations under all material leases to which it is a party and all
such leases are in full force and effect. The Borrower and each Subsidiary enjoys peaceful and
undisturbed possession under all such material leases.



     (c) As of the Closing Date, the Borrower has not received any notice of, nor has any knowledge
of, any pending or contemplated condemnation proceeding affecting the Mortgaged Properties or any
sale or disposition thereof in lieu of condemnation.



     (d) Except as disclosed on Schedule 3.20(a) or 3.20(b), as of the Closing Date, none of the
Borrower or any of the Subsidiaries is obligated under any right of first refusal, option or other
contractual right to sell, assign or otherwise dispose of any Mortgaged Property or any interest
therein.



49









 





     Section 3.08. Subsidiaries. Schedule 3.08 sets forth as of the Closing Date a list of all
Subsidiaries and the direct or indirect ownership interests of the Borrower therein, and identifies
each Subsidiary that is a Material Foreign Subsidiary on the Closing Date. The shares of capital
stock or other ownership interests so indicated on Schedule 3.08 are fully paid and non-assessable
and, as of the Closing Date, are owned by the Borrower, directly or indirectly, free and clear of
all Liens (other than Liens created under the Security Documents, the Revolving Liens and statutory
nonconsensual Liens expressly permitted by Section 6.02).



     Section 3.09. Litigation; Compliance with Laws. (a) Except as set forth on Schedule 3.09,
there are no actions, suits, proceedings or investigations at law or in equity or by or before any
Governmental Authority now pending or, to the knowledge of the Borrower, threatened against or
affecting the Borrower or any Subsidiary or any business, property or rights of any such person (i)
that involve any Loan Document or (ii) as to which there is a reasonable possibility of an adverse
determination and that, if adversely determined, could reasonably be expected, individually or in
the aggregate, to result in a Material Adverse Effect.



     (b) Since the Closing Date, there has been no change in the status of the matters disclosed on
Schedule 3.09 that, individually or in the aggregate, has resulted in, or materially increased the
likelihood of, a Material Adverse Effect.



     (c) The Borrower and each of the Domestic Subsidiaries and Material Foreign Subsidiaries is in
compliance with all laws, regulations, consent decrees and orders of any Governmental Authority
applicable to it (including, without limitation, the Patriot Act, ERISA, employee health and
safety, margin regulations, Environmental Laws and Health Care Laws) or its property and all
indentures, agreements and other instruments binding upon it or its property, except where the
failure to comply, individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.



     (d) None of the Borrower or any of the Domestic Subsidiaries or Material Foreign Subsidiaries
or any of their respective material properties or assets is in violation of, nor will the continued
operation of their material properties and assets as currently conducted violate, any law, rule or
regulation (including any zoning, building, Environmental Law, ordinance, code or approval or any
building permits) or any restrictions of record or agreements affecting the Mortgaged Property, or
is in default with respect to any judgment, writ, injunction, decree or order of any Governmental
Authority, where such violation or default could reasonably be expected to result in a Material
Adverse Effect.



     (e) Certificates of occupancy and permits (in each case, to the extent required by applicable
law) are in effect for each Mortgaged Property as currently constructed, and true and complete
copies of such certificates of occupancy have been delivered to the Collateral Agent as mortgagee
with respect to each Mortgaged Property.



50









 





     Section 3.10. Agreements. (a) Neither the Borrower nor any of the Domestic Subsidiaries or
Material Foreign Subsidiaries is a party to any agreement or instrument or subject to any corporate
restriction that has resulted or could reasonably be expected to result in a Material Adverse
Effect.



     (b) Neither the Borrower nor any of the Subsidiaries is in default in any manner under any
provision of any indenture or other agreement or instrument evidencing Indebtedness, or any other
material agreement or instrument to which it is a party or by which it or any of its properties or
assets are or may be bound, where such default could reasonably be expected to result in a Material
Adverse Effect.



     Section 3.11. Federal Reserve Regulations. (a) Neither the Borrower nor any of the
Subsidiaries is engaged principally, or as one of its important activities, in the business of
extending credit for the purpose of buying or carrying Margin Stock.



     (b) No part of the proceeds of any Loan will be used, whether directly or indirectly, and
whether immediately, incidentally or ultimately, for any purpose that entails a violation of, or
that is inconsistent with, the provisions of the Regulations of the Board, including Regulation T,
U or X.



     Section 3.12. Investment Company Act. Neither the Borrower nor any of the Subsidiaries is
an “investment company” as defined in, or subject to regulation under, the Investment Company Act
of 1940.



     Section 3.13. Use of Proceeds. The Borrower will use the proceeds of the Loans only for the
purposes specified in the Preliminary Statements.



     Section 3.14. Tax Returns. Each of the Borrower and the Subsidiaries has filed or caused to
be filed all Federal and all other material state, local and foreign tax returns or materials
required to have been filed by it and has paid or caused to be paid all Federal and all other
material taxes due and payable by it and all assessments received by it, except taxes that are
being contested in good faith by appropriate proceedings and for which the Borrower or such
Subsidiary, as applicable, shall have set aside on its books adequate reserves in accordance with
GAAP.



     Section 3.15. No Material Misstatements. None of (a) the Confidential Information
Memorandum or (b) any other information, report, financial statement, exhibit or schedule furnished
by or on behalf of the Borrower to the Administrative Agent or any Lender in connection with the
negotiation of any Loan Document or included therein or delivered pursuant thereto taken as a whole
contained, contains or will contain any material misstatement of fact or omitted, omits or will
omit to state any material fact necessary to make the statements therein, in the light of the
circumstances under which they were, are or will be made, not misleading; provided that to the
extent any such information, report,



51









 







financial statement, exhibit or schedule was based upon or constitutes a forecast or
projection, the Borrower represents only that it acted in good faith and utilized reasonable
assumptions (based upon accounting principles consistent with the historical audited financial
statements of the Borrower) and due care in the preparation of such information, report, financial
statement, exhibit or schedule (it being understood that any such forecast or projection is not a
guarantee of future performance and that actual results during the period covered by such forecast
or projection may materially differ from the projected results thereof).



     Section 3.16. Employee Benefit Plans. Each of the Borrower and its ERISA Affiliates is in
compliance in all material respects with the applicable provisions of ERISA and the Code and the
regulations and published interpretations thereunder. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events, could reasonably be
expected to result in material liability of the Borrower or any of its ERISA Affiliates. The
present value of all benefit liabilities under each Plan (based on the assumptions used for
purposes of Statement of Financial Accounting Standards No. 87) did not, as of the last annual
valuation date applicable thereto, exceed the fair market value of the assets of such Plan.



     Section 3.17. Environmental Matters. (a) Except as set forth in Schedule 3.17:




     (i) To the knowledge of the Borrower, the properties and facilities currently or
formerly owned, leased or operated by the Borrower and the Subsidiaries (the
“Properties”) do not contain any Hazardous Materials in amounts or concentrations
which (i) constitute, or constituted, a violation of, (ii) require Remedial Action under,
or (iii) could reasonably be expected to give rise to liability under, Environmental Laws,
which violations, Remedial Actions and liabilities, individually or in the aggregate,
could reasonably be expected to result in a Material Adverse Effect;




     (ii) The Borrower, the Subsidiaries and their respective operations are in
compliance, and in the last five years have been in compliance, with all Environmental
Laws and all necessary Environmental Permits have been obtained and are in effect, except
to the extent that such noncompliance or failure to obtain any necessary permits,
individually or in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect;




     (iii) To the knowledge of the Borrower, there have been no Releases or threatened
Releases at, from, on, to or under the Properties or otherwise in connection with the
operations of the Borrower or the Subsidiaries, which Releases or threatened Releases,
individually or in the aggregate, could reasonably be expected to result in a Material
Adverse Effect;



52









 






     (iv) Neither the Borrower nor any of the Subsidiaries has received any Environmental
Claim in connection with the Properties or the operations of the Borrower or the
Subsidiaries or with regard to any person whose liabilities for environmental matters the
Borrower or the Subsidiaries has retained or assumed, in whole or in part, contractually,
by operation of law or otherwise, which, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect, nor do the Borrower or the
Subsidiaries have any reasonable basis to believe that any such Environmental Claim is
being threatened; and




     (v) (A) To the knowledge of the Borrower, Hazardous Materials have not been
transported from the Properties, nor have Hazardous Materials been generated, treated,
stored or disposed of at, on or under any of the Properties in a manner that could give
rise to any liability under any Environmental Law which in the aggregate could be expected
to result in a Material Adverse Effect, nor (B) have the Borrower or the Subsidiaries
retained or assumed any liability, contractually, by operation of law or otherwise with
respect to the generation, treatment, storage or disposal of Hazardous Materials, which
transportation, generation, treatment, storage or disposal, or retained or assumed
liabilities, individually or in the aggregate could reasonably be expected to result in a
Material Adverse Effect.



     (b) Since the date of this Agreement, there has been no change in the status of the matters
disclosed on Schedule 3.17 that, individually or in the aggregate, has resulted in, or materially
increased the likelihood of, a Material Adverse Effect.



     Section 3.18. Insurance. Schedule 3.18 sets forth a true, complete and correct description
of all insurance maintained by the Borrower or by the Borrower for its Subsidiaries as of the
Closing Date. As of such date, such insurance is in full force and effect and all premiums have
been duly paid. The Borrower and its Subsidiaries have insurance in such amounts and covering such
risks and liabilities as are in accordance with normal industry practice.



     Section 3.19. Security Documents. (a) The Guarantee and Collateral Agreement, upon
execution and delivery thereof by the parties thereto, will create in favor of the Collateral
Agent, for the ratable benefit of the Secured Parties, a legal, valid and enforceable security
interest in the Collateral (as defined in the Guarantee and Collateral Agreement) and the proceeds
thereof and (i) when the Pledged Collateral (as defined in the Guarantee and Collateral Agreement)
is delivered to the Collateral Agent, the Lien created under the Guarantee and Collateral Agreement
in favor of the Collateral Agent for the ratable benefit of the Secured Parties shall constitute a
fully perfected first priority Lien on, and security interest in, all right, title and interest of
the Loan Parties in such Pledged Collateral, in each case, pari passu with the Revolving Liens and
prior and superior in right to any other person, and (ii) when financing statements in



53









 







appropriate form are filed in the offices specified on Schedule 3.19(a), the Lien created
under the Guarantee and Collateral Agreement in favor of the Collateral Agent for the ratable
benefit of the Secured Parties will constitute a fully perfected Lien on, and security interest in,
all right, title and interest of the Loan Parties in such Collateral (other than Intellectual
Property, as defined in the Guarantee and Collateral Agreement), in each case pari passu with the
Revolving Liens and prior and superior in right to any other person, other than with respect to
Liens expressly permitted by Section 6.02.



     (b) Upon the recordation of the Guarantee and Collateral Agreement (or a short-form security
agreement in form and substance reasonably satisfactory to the Borrower and the Collateral Agent)
with the United States Patent and Trademark Office and the United States Copyright Office, together
with the financing statements in appropriate form filed in the offices specified on Schedule
3.19(a), the Lien created under the Guarantee and Collateral Agreement in favor of the Collateral
Agent, for the ratable benefit of the Secured Parties, shall constitute a fully perfected Lien on,
and security interest in, all right, title and interest of the Loan Parties in the Intellectual
Property (as defined in the Guarantee and Collateral Agreement) in which a security interest may be
perfected by filing in the United States and its territories and possessions, in each case pari
passu with the Revolving Liens and prior and superior in right to any other person (it being
understood that subsequent recordings in the United States Patent and Trademark Office and the
United States Copyright Office may be necessary to perfect a Lien on registered trademarks and
patents, trademark and patent applications and registered copyrights acquired by the Loan Parties
after the Closing Date).



     (c) The Mortgages are effective to create in favor of the Collateral Agent, for the ratable
benefit of the Secured Parties, a legal, valid and enforceable Lien on all of the Loan Parties’
right, title and interest in and to the Mortgaged Property thereunder and the proceeds thereof, and
when the Mortgages are filed in the offices specified on Schedule 3.19(c), the Mortgages shall
constitute a fully perfected Lien on, and security interest in, all right, title and interest of
the Loan Parties in such Mortgaged Property and the proceeds thereof, in each case pari passu with
the Revolving Liens and prior and superior in right to any other person, other than with respect to
the rights of persons pursuant to Liens expressly permitted by Section 6.02.



     Section 3.20. Location of Real Property and Leased Premises. (a) Schedule 3.20(a) lists
completely and correctly as of the Closing Date all real property owned by the Borrower and the
Subsidiaries and the addresses thereof. The Borrower and the Subsidiaries own in fee all the real
property set forth on Schedule 3.20(a).



     (b) Schedule 3.20(b) lists completely and correctly as of the Closing Date all Material Leased
Property and the addresses thereof. The Borrower and the Subsidiaries have valid leases in all the
real property set forth on Schedule



54









 





3.20(b). For the purpose of the foregoing, “Material Leased Property” means real
property leased by the Borrower or any Subsidiary with respect to which such property lease (i) has
more than twelve (12) months remaining in the lease term and (ii) requires the Borrower or any
Subsidiary to make lease payments in excess of $500,000 in any year or $1,000,000 in the aggregate
over the remaining term of such lease.



     Section 3.21. Labor Matters. As of the Closing Date, there are no strikes, lockouts or
slowdowns against the Borrower or any Subsidiary pending or, to the knowledge of the Borrower,
threatened. The hours worked by and payments made to employees of the Borrower and the
Subsidiaries have not been in violation of the Fair Labor Standards Act or any other applicable
Federal, state, local or foreign law dealing with such matters. All payments due from the Borrower
or any of the Domestic Subsidiaries or Material Foreign Subsidiaries, or for which any claim may be
made against the Borrower or any of the Domestic Subsidiaries or Material Foreign Subsidiaries, on
account of wages and employee health and welfare insurance and other benefits, have been paid or
accrued as a liability on the books of the Borrower or the applicable Subsidiary.



     Section 3.22. Solvency. Immediately after the consummation of the Transactions to occur on
the Closing Date and immediately following the making of each Loan and after giving effect to the
application of the proceeds of each Loan, (a) the fair value of the assets of the Borrower and the
Subsidiaries on a consolidated basis, at a fair valuation, will exceed their debts and liabilities,
subordinated, contingent or otherwise; (b) the present fair saleable value of the property of the
Borrower and the Subsidiaries on a consolidated basis will be greater than the amount that will be
required to pay the probable liability in respect of their debts and other liabilities,
subordinated, contingent or otherwise, as such debts and other liabilities become absolute and
matured; (c) the Borrower and the Subsidiaries on a consolidated basis will be able to pay their
debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become
absolute and matured; and (d) the Borrower and the Subsidiaries on a consolidated basis will not
have unreasonably small capital with which to conduct the business in which they are engaged as
such business is now conducted and is proposed to be conducted following the Closing Date.



     Section 3.23. Transaction Documents. (a) The Borrower has delivered to the Administrative
Agent a complete and correct copy of the Merger Agreement (including all schedules, exhibits,
amendments, supplements and modifications thereto). Neither the Borrower nor any Loan Party or, to
the knowledge of the Borrower or each Loan Party, any other person party thereto is in default in
the performance or compliance with any material provisions thereof. The Merger Agreement complies
in all material respects with all applicable laws. All representations and warranties set forth in
the Merger Agreement were true and correct in all material respects at the time as of which such
representations and warranties were made (or deemed made).



55









 





     (b) The Borrower has delivered to the Administrative Agent a complete and correct copy of the
Tender Offer Documentation (including all schedules, exhibits, amendments, supplements and
modifications thereto). The Tender Offer complies in all material respects with all applicable
laws.



     Section 3.24. Sanctioned Persons. None of the Borrower or any Subsidiary nor, to the
knowledge of the Borrower, any director, officer, agent, employee or Affiliate of the Borrower or
any Subsidiary is currently subject to any U.S. sanctions administered by the Office of Foreign
Assets Control of the U.S. Treasury Department (“OFAC”); and the Borrower will not directly
or indirectly use the proceeds of the Loans or otherwise make available such proceeds to any
person, for the purpose of financing the activities of any person currently subject to any U.S.
sanctions administered by OFAC.



ARTICLE 4

Conditions of Lending




     The obligations of the Lenders to make Loans hereunder are subject to the satisfaction of the
following conditions:



     Section 4.01. All Credit Events. On the date of each Borrowing (other than a conversion or
a continuation of a Borrowing) (each such event being called a “Credit Event”):



     (a) The Administrative Agent shall have received a notice of such Borrowing as required by
Section 2.03.



     (b) The representations and warranties set forth in Article 3 and in each other Loan Document
(in the case of the Merger Borrowing on the Merger Date, excluding all of the representations and
warranties in Article 3 other than those contained in Section 3.01, Section 3.02, Section 3.03,
Section 3.11 and Section 3.12) shall be true and correct in all material respects on and as of the
date of such Credit Event with the same effect as though made on and as of such date, except to the
extent such representations and warranties expressly relate to an earlier date (in which case such
representations and warranties shall be true and correct in all material respects on and as of such
earlier date).



     (c) (i) In the case of all Credit Events other than the Merger Borrowing on the Merger Date,
the Borrower and each other Loan Party shall be in compliance with all the terms and provisions set
forth herein and in each other Loan Document on its part to be observed or performed, and at the
time of and immediately after such Credit Event, no Event of Default or Default shall have occurred
and be continuing and (ii) in the case of the Merger Borrowing on the Merger Date, at the time of
and immediately after such Credit Event, no Event of Default or Default under Article 7(b), Article
7(c), Article 7(g) or Article 7(h) shall have occurred and be continuing.



56









 





     Each Credit Event shall be deemed to constitute a representation and warranty by the Borrower
on the date of such Credit Event as to the satisfaction of the conditions set forth in paragraphs
(b) and (c) of this Section 4.01.



     Section 4.02. First Credit Event. On the Closing Date:



     (a) The Administrative Agent (or its counsel) shall have received from each party hereto
either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence
satisfactory to the Administrative Agent (which may include facsimile transmission of a signed
signature page of this Agreement) that such party has signed a counterpart of this Agreement.



     (b) The Administrative Agent shall have received, on behalf of itself and the Lenders, a
favorable written opinion of (i) Dewey & LeBoeuf LLP, counsel for the Borrower, substantially to
the effect set forth in Exhibit G-1, and (ii) each counsel listed on Schedule 4.02(b),
substantially to the effect set forth in Exhibit G-2, in each case (A) dated the Closing Date, (B)
addressed to the Administrative Agent and the Lenders, and (C) covering such other matters relating
to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request.
The Borrower hereby requests such counsel to deliver such opinions.



     (c) The Administrative Agent shall have received (i) a copy of the certificate or articles of
incorporation, including all amendments thereto, of each Loan Party, certified as of a recent date
by the Secretary of State of the state of its organization, and a certificate as to the good
standing of each Loan Party as of a recent date, from such Secretary of State; (ii) a certificate
of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying
(A) that attached thereto is a true and complete copy of the bylaws of such Loan Party as in effect
on the Closing Date and at all times since a date prior to the date of the resolutions described in
clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted
by the Board of Directors of such Loan Party authorizing the execution, delivery and performance of
the Loan Documents to which such person is a party and, in the case of the Borrower, the Borrowings
hereunder, and that such resolutions have not been modified, rescinded or amended and are in full
force and effect, (C) that the certificate or articles of incorporation of such Loan Party have not
been amended since the date of the last amendment thereto shown on the certificate of good standing
furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each
officer executing any Loan Document or any other document delivered in connection herewith on
behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen
signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii)
above; and (iv) such other documents as the Lenders or the Administrative Agent may reasonably
request.



57









 





     (d) The Administrative Agent shall have received a certificate, dated the Closing Date and
signed by a Financial Officer of the Borrower, confirming compliance as of the Closing Date with
the conditions precedent set forth in Sections 4.01(b), 4.01(c), 4.02(k)(iii), (iv) and (v),
4.02(l), 4.02(m), 4.02(o)(ii), 4.02(p), 4.02(r) and 4.02(s).



     (e) After giving effect to the Transactions occurring on the Closing Date, the Borrower and
the Subsidiaries shall have outstanding no Indebtedness for borrowed money or preferred stock other
than (i)  Indebtedness under the Loan Documents, (ii) the Convertible Notes, (iii) the Revolving
Indebtedness and (iv) other Indebtedness permitted under Section 6.01 (other than clause (m)
thereof).



     (f) The Administrative Agent shall have received all fees and other amounts due and payable on
or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all
fees and out-of-pocket expenses (including fees, charges and disbursements of outside counsel)
required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document or
under the Fee Letter.



     (g) The Security Documents shall have been duly executed by each Loan Party that is to be a
party thereto and shall be in full force and effect on the Closing Date. The Collateral Agent on
behalf of the Secured Parties shall have a security interest in the Collateral of the type and
priority described in each Security Document.



     (h) The Collateral Agent shall have received a Perfection Certificate with respect to the Loan
Parties dated the Closing Date and duly executed by a Responsible Officer of the Borrower, and
shall have received the results of a search of the Uniform Commercial Code filings (or equivalent
filings) made with respect to the Loan Parties in the states (or other jurisdictions) of formation
of such persons, in which the chief executive office of each such person is located and in the
other jurisdictions in which such persons maintain property, in each case as indicated on such
Perfection Certificate, together with copies of the financing statements (or similar documents)
disclosed by such search, and accompanied by evidence satisfactory to the Collateral Agent that the
Liens indicated in any such financing statement (or similar document) would be permitted under
Section 6.02 or have been or will be contemporaneously released or terminated.



     (i) Except as otherwise agreed by the Collateral Agent pursuant to a letter regarding
post-closing matters (i) each of the Security Documents, in form and substance satisfactory to the
Lenders, relating to each of the Mortgaged Properties, shall have been duly executed by the parties
thereto and delivered to the Collateral Agent and shall be in full force and effect, (ii) each of
such Mortgaged Properties shall not be subject to any Lien other than those permitted under Section
6.02, (iii) each of such Security Documents shall have been filed



58









 







and recorded in the recording office as specified on Schedule 3.19(c) (or delivered to a
nationally recognized title company to be so recorded) and (iv) the Collateral Agent shall have a
local opinion of counsel to the Borrower with respect to the enforceability and perfection of the
applicable Mortgages and any related fixture filings (or in the event a Subsidiary of the Borrower
is the mortgagor, to such Subsidiary, in form and substance reasonably satisfactory to the
Collateral Agent.



     (j) The Administrative Agent shall have received a copy of, or a certificate as to coverage
under, and an insurance broker’s letter with respect to, the insurance policies required by Section
5.02 and the applicable provisions of the Security Documents, each of which shall be endorsed or
otherwise amended to include a customary lender’s loss payable endorsement and to name the
Collateral Agent as additional insured, in form and substance satisfactory to the Administrative
Agent.



     (k) (i) The definitive documents filed with the SEC with respect to the commencement of the
Tender Offer shall have been provided to the Administrative Agent prior to the Closing Date (or, in
the case of any amendments, supplements or other modifications that were subsequently filed, prior
to the filing thereof), and the terms and conditions thereof and documentation relating thereto
(the “Tender Offer Documentation”) shall be in form and substance reasonably satisfactory
to the Administrative Agent (it being understood that the Tender Offer Documentation provided to
the Joint Arrangers dated September 12, 2008, as extended on October 13, 2008 and as further
extended on November 24, 2008 and as amended to reflect the changes thereto set forth in the Merger
Agreement as in effect on the Closing Date is in form and substance satisfactory to the
Administrative Agent) and shall be in full force and effect, (ii) the Tender Offer Documentation
shall not have been altered, amended or otherwise changed or supplemented, in each case in any
respect that could reasonably be expected to be materially adverse to the rights or interests of
the Administrative Agent or the Lenders or the ability of the Joint Arrangers to syndicate the Term
Facility, and no condition thereto shall have been waived, altered, amended or otherwise changed or
supplemented, in each case without the prior written consent of the Administrative Agent (such
consent not to be unreasonably withheld or delayed), (iii) all material aspects of the Tender Offer
shall have been consummated in accordance with applicable laws and the description thereof in the
Tender Offer Documentation, (iv) the offer price in the Tender Offer shall not exceed $37.00 per
Share, and (v) Merger Sub shall have accepted for payment, pursuant to the Tender Offer, a number
of Shares (x) equal to at least a majority of the total number of Shares outstanding and (y)
representing at least a majority of the combined voting power of all equity securities of the
Target, in each case on a fully diluted basis (the “Minimum Acceptance Condition”).



     (l) The Borrower shall have paid Acquisition Consideration from cash and cash equivalents on
hand (and not from the proceeds of the Loans, the loans under the Revolving Loan Credit Agreement
or any other Indebtedness) in an



59









 







amount not less than the greater of (i) $1,000,000,000 and (ii) the amount necessary to
purchase Shares in an amount sufficient to satisfy the Minimum Acceptance Condition.



     (m) All shareholder rights plans, “poison pill” or any similar plans or charter or bylaw
provisions and all anti-takeover or similar statutes, including Section 203 of the Delaware General
Corporations Law, are or will be invalid or inapplicable to the acquisition of Shares pursuant to
the Transactions and to the Borrower, the Target, Merger Sub and their Affiliates.



     (n) The Administrative Agent shall have received copies of the Merger Agreement and all
certificates, opinions and other documents delivered thereunder, certified by a Financial Officer
as being complete and correct.



     (o) (i) The Lenders shall have received the financial statements and opinions referred to in
Section 3.05, none of which shall demonstrate a material adverse change in the financial condition
of the Borrower or the Target, as applicable, from (and shall not otherwise be materially
inconsistent with) the financial statements or forecasts previously provided to the Lenders (it
being agreed that the financial statements provided to the Joint Arrangers prior to November 23,
2008 are satisfactory) and (ii) there shall have been no material change to the capital stock of
the Borrower or the Target since November 23, 2008.



     (p) The Joint Arrangers shall be satisfied, in their reasonable judgment, that the Borrower’s
Consolidated EBITDA for the four-fiscal quarter period ended at least 30 days prior to the Closing
Date (excluding Consolidated EBITDA of the Target and its subsidiaries) shall not be less than
$500,000,000.



     (q) The Administrative Agent shall have received a certificate from the chief financial
officer of the Borrower certifying that the Borrower and its Subsidiaries, on a consolidated basis
after giving effect to the Transactions to occur on the Closing Date, are solvent.



     (r) All requisite Governmental Authorities and third parties shall have approved or consented
to the Transactions and the other transactions contemplated hereby to the extent required (except
to the extent such approvals or consents are not material to the Transactions or the other
transactions contemplated hereby), all applicable appeal periods shall have expired and there shall
not be any pending or threatened litigation, governmental, administrative or judicial action that
could reasonably be expected to restrain, prevent or impose materially burdensome conditions on the
Transactions or the other transactions contemplated hereby. Without limiting the foregoing, the
waiting periods under the Hart-Scott-Rodino Antitrust Improvement Act 1976 (as amended, the
“HSR Act”) shall have expired or have been terminated.



60









 





     (s) The Administrative Agent shall have received evidence reasonably satisfactory to it that
the Borrower shall have received a public corporate credit rating of B+ or higher by S&P and a
public corporate family rating of B1 or higher by Moody’s, in each case as of the Closing Date and
after giving effect to the Transactions.



     (t) The Lenders shall have received, to the extent requested, all documentation and other
information required by regulatory authorities under applicable “know your customer” and anti-money
laundering rules and regulations, including the Patriot Act.



     (u) The Administrative Agent shall have received a fully executed copy of Amendment No. 1 to
the Revolving Loan Credit Agreement, which agreement as so amended shall be in form and substance
reasonably satisfactory to the Administrative Agent (it being understood that Amendment No. 1,
including the Exhibits thereto, as in effect on December 5, 2008 is acceptable to the
Administrative Agent). The Revolving Loan Credit Agreement as amended by Amendment No. 1 thereto
shall be in full force and effect on the Closing Date.



     Section 4.03. Conditions to Merger Borrowing Credit Events. The obligation of each Lender
to make Loans to the Borrower on the Merger Date to finance the Merger Consideration (the
“Merger Borrowing”) is subject to satisfaction of the following conditions precedent:



     (a) After giving effect to the Merger, the Target and its Subsidiaries shall have outstanding
no Indebtedness for borrowed money or preferred stock other than (i) Indebtedness under the Loan
Documents, and (ii) other Indebtedness permitted under Section 6.01. The Borrower shall have
caused the Target and each of its Domestic Subsidiaries to comply with the applicable provisions of
Section 5.13 and the Security Documents and to have become Loan Parties. Without limiting the
previous sentence, in connection with the foregoing, the Lenders shall have received, in form and
substance reasonably satisfactory to the Administrative Agent, with respect to the Target and its
Domestic Subsidiaries (x) charter documents and other certifications similar to those delivered
pursuant to Section 4.02, (y) additional legal opinions, in form and substance similar to those
delivered pursuant to Section 4.02 and (z) customary lien and judgment searches similar to those
delivered pursuant to Section 4.02.



     (b) All requisite Governmental Authorities and third parties shall have approved or consented
to the Transactions and the other transactions contemplated hereby to the extent required (except
to the extent such approvals or consents are not material to the Transactions or the other
transactions contemplated hereby), all applicable appeal periods shall have expired and there shall
not be any pending or threatened litigation, governmental, administrative or judicial action that
could reasonably be expected to restrain, prevent or impose materially burdensome conditions on the
Transactions or the other transactions



61









 







contemplated hereby. Without limiting the foregoing, the waiting periods under the HSR Act
shall have expired or have been terminated.



     (c) The terms and conditions of the Merger Agreement and documentation relating thereto shall
be in form and substance reasonably satisfactory to the Administrative Agent and shall be in full
force and effect (it being understood that the Merger Agreement provided to the Administrative
Agent and dated November 23, 2008 is satisfactory to the Administrative Agent). The Merger
Agreement shall not have been altered, amended or otherwise changed or supplemented, in each case
in any respect that could reasonably be expected to be materially adverse to the rights or
interests of the Administrative Agent or the Lenders or the ability of the Joint Arrangers to
syndicate the Term Facility, and no condition thereto shall have been waived, altered, amended or
otherwise changed or supplemented, in each case without the prior written consent of the Joint
Arrangers (such consent not to be unreasonably withheld or delayed). The Merger shall be
consummated simultaneously with such Credit Event in accordance with applicable laws and on terms
described in the Merger Agreement.



     (d) The Administrative Agent shall have received all fees and other amounts due and payable on
or prior to the Merger Date, including, to the extent invoiced, reimbursement or payment of all
fees and out-of-pocket expenses (including fees, charges and disbursements of outside counsel)
required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document or
under the Fee Letter.



     (e) The Lenders shall have received, with respect to the Target and its Subsidiaries, to the
extent requested, all documentation and other information required by regulatory authorities under
applicable “know your customer” and anti-money laundering rules and regulations, including the
Patriot Act.



ARTICLE 5

Affirmative Covenants




     The Borrower covenants and agrees with each Lender that so long as this Agreement shall remain
in effect and until the Commitments have been terminated and the principal of and interest on each
Loan, all Fees and all other expenses or amounts payable under any Loan Document shall have been
paid in full, unless the Required Lenders shall otherwise consent in writing, the Borrower will,
and will cause each of the Subsidiaries to:



     Section 5.01. Existence; Compliance with Laws; Businesses and Properties. (a) Do or cause
to be done all things necessary to preserve, renew and keep in full force and effect its legal
existence, except as otherwise expressly permitted under Section 6.05.




62












 





     (b) Do or cause to be done all things necessary to obtain, preserve, renew, extend and keep in
full force and effect its rights, licenses, permits, franchises, authorizations, patents,
copyrights, trademarks and trade names; maintain and operate its business in substantially the
manner in which it is presently conducted and operated; comply with all applicable laws, rules,
regulations, decrees and orders of any Governmental Authority, whether now in effect or hereafter
enacted; and at all times maintain and preserve all property and keep such property in good repair,
working order and condition and from time to time make, or cause to be made, all needful and proper
repairs, renewals, additions, improvements and replacements thereto necessary in order that the
business carried on in connection therewith may be properly conducted at all times, in each case to
the extent the failure to do so, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect.



     Section 5.02. Insurance. (a) Keep its insurable properties adequately insured at all times
by financially sound and reputable insurers (or, if any insurer no longer qualifies as such,
promptly thereafter enter into replacement insurance with a financially sound and reputable
insurer); maintain such other insurance, to such extent and against such risks, including fire and
other risks insured against by extended coverage, as is customary with companies in the same or
similar businesses operating in the same or similar locations, including public liability insurance
against claims for personal injury or death or property damage occurring upon, in, about or in
connection with the use of any properties owned, occupied or controlled by it; and maintain such
other insurance as may be required by law.



     (b) Cause all such policies covering any Collateral to be endorsed or otherwise amended to
include a customary lender’s loss payable endorsement, in form and substance satisfactory to the
Administrative Agent and the Collateral Agent, which endorsement shall provide that, from and after
the Closing Date, if the insurance carrier shall have received written notice from the
Administrative Agent or the Collateral Agent of the occurrence of an Event of Default, the
insurance carrier shall pay all proceeds otherwise payable to the Borrower or the Loan Parties
under such policies directly to the Collateral Agent; cause all such policies to provide that
neither the Borrower, the Administrative Agent, the Collateral Agent nor any other party shall be a
coinsurer thereunder and to contain a “Replacement Cost Endorsement”, without any deduction for
depreciation, and such other provisions as the Administrative Agent or the Collateral Agent may
reasonably require from time to time to protect their interests; deliver original or certified
copies of all such policies to the Collateral Agent; cause each such policy to provide that it
shall not be canceled, modified or not renewed (i) by reason of nonpayment of premium upon not less
than 10 days’ prior written notice thereof by the insurer to the Administrative Agent and the
Collateral Agent (giving the Administrative Agent and the Collateral Agent the right to cure
defaults in the payment of premiums) or (ii) for any other reason upon not less than 30 days’ prior
written notice thereof by the insurer to the Administrative Agent and the



63









 







Collateral Agent; deliver to the Administrative Agent and the Collateral Agent, prior to the
cancellation, modification or nonrenewal of any such policy of insurance, a copy of a renewal or
replacement policy (or other evidence of renewal of a policy previously delivered to the
Administrative Agent and the Collateral Agent) together with evidence satisfactory to the
Administrative Agent and the Collateral Agent of payment of the premium therefor.



     (c) If at any time the area in which the Premises (as defined in the Mortgages) are located is
designated (i) a “flood hazard area” in any Flood Insurance Rate Map published by the Federal
Emergency Management Agency (or any successor agency), obtain flood insurance in such total amount
as the Administrative Agent, the Collateral Agent or the Required Lenders may from time to time
require, and otherwise comply with the National Flood Insurance Program as set forth in the Flood
Disaster Protection Act of 1973, as it may be amended from time to time, or (ii) a “Zone 1” area,
obtain earthquake insurance in such total amount as the Administrative Agent, the Collateral Agent
or the Required Lenders may from time to time require.



     (d) With respect to any Mortgaged Property, carry and maintain comprehensive general liability
insurance including the “broad form CGL endorsement” and coverage on an occurrence basis against
claims made for personal injury (including bodily injury, death and property damage) and umbrella
liability insurance against any and all claims, in no event for a combined single limit of less
than that which is customary for companies in the same or similar businesses operating in the same
or similar locations, naming the Collateral Agent as an additional insured, on forms satisfactory
to the Collateral Agent.



     (e) Notify the Administrative Agent and the Collateral Agent promptly whenever any separate
insurance concurrent in form or contributing in the event of loss with that required to be
maintained under this Section 5.02 is taken out by any Loan Party; and promptly deliver to the
Administrative Agent and the Collateral Agent a duplicate original copy of such policy or policies.



     Section 5.03. Obligations and Taxes. Pay its Indebtedness and other obligations promptly
when due and in accordance with their terms (it being understood that nothing in this Section shall
require the payment of amounts for which the Borrower or any Subsidiary is in good faith disputing
its liability so long as the Borrower shall have set aside on its books adequate reserves with
respect thereto in accordance with GAAP) and pay and discharge promptly when due all taxes,
assessments and governmental charges or levies imposed upon it or upon its income or profits or in
respect of its property, before the same shall become delinquent or in default, as well as all
lawful claims for labor, materials and supplies or otherwise that, if unpaid, might give rise to a
Lien upon such properties or any part thereof; provided, however, that such payment and discharge
shall not be required with respect to any such tax, assessment, charge, levy or claim so long as
the validity or amount thereof shall be contested in good



64









 







faith by appropriate proceedings and the Borrower shall have set aside on its books adequate
reserves with respect thereto in accordance with GAAP and such contest operates to suspend
collection of the contested obligation, tax, assessment or charge and enforcement of a Lien and, in
the case of a Mortgaged Property, there is no risk of forfeiture of such property.



     Section 5.04. Financial Statements, Reports, etc. In the case of the Borrower, furnish to
the Administrative Agent, which shall furnish to each Lender:



     (a) no later than the date that is the earlier of (i) the date by which the Annual Report on
Form 10-K of the Borrower for each fiscal year is required to be filed under the rules and
regulations of the SEC and (ii) 90 days after the end of such fiscal year, its consolidated balance
sheets and related statements of operations, stockholders’ equity and cash flows showing the
financial condition of the Borrower and its consolidated Subsidiaries as of the close of such
fiscal year and the results of its operations and the operations of such Subsidiaries during such
year, together with comparative figures for the immediately preceding fiscal year, all audited by
PricewaterhouseCoopers LLP or other independent public accountants of recognized national standing
reasonably acceptable to the Required Lenders and accompanied by an opinion of such accountants
(which shall not be qualified in any material respect (it being agreed that any “going concern” or
like qualification or exception or exception as to the scope of such audit shall be deemed to be a
material qualification)) to the effect that such consolidated financial statements fairly present
in all material respects the financial condition and results of operations of the Borrower and its
consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied,
together with a customary “management discussion and analysis” provision;



     (b) no later than the date that is the earlier of (i) the date by which the Quarterly Report
on Form 10-Q of the Borrower for each of the first three fiscal quarters of each fiscal year is
required to be filed under the rules and regulations of the SEC and (ii) 45 days after the end of
such fiscal quarter, its consolidated balance sheets and related statements of operations,
stockholders’ equity and cash flows showing the financial condition of the Borrower and its
consolidated Subsidiaries as of the close of such fiscal quarter and the results of its operations
and the operations of such Subsidiaries during such fiscal quarter and the then elapsed portion of
the fiscal year, and, other than with respect to quarterly reports during the remainder of the
first fiscal year after the Closing Date, comparative figures for the same periods in the
immediately preceding fiscal year, all certified by one of its Financial Officers as fairly
presenting in all material respects the financial condition and results of operations of the
Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments, together with a customary
“management discussion and analysis” provision;



65









 





     (c) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a
certificate of a Financial Officer in the form of Exhibit H (i) certifying that no Event of Default
or Default has occurred or, if such an Event of Default or Default has occurred, specifying the
nature and extent thereof and any corrective action taken or proposed to be taken with respect
thereto and (ii) setting forth computations in reasonable detail satisfactory to the Administrative
Agent demonstrating compliance with the covenants contained in Sections 6.10, 6.11 and 6.12 and, in
the case of a certificate delivered with the financial statements required by paragraph (a) above,
setting forth the Borrower’s calculation of Excess Cash Flow;



     (d) concurrently with any delivery of financial statements under paragraph (a) above, a
certificate of the accounting firm that reported on such statements (which certificate may be
prepared in accordance with professional accounting standards and may be limited to accounting
matters and disclaim responsibility for legal interpretations) stating that in performing the audit
necessary therefor, no knowledge was obtained of the existence of any Event of Default or Default
with respect to Sections 6.10, 6.11 or 6.12 or, if such knowledge was obtained, specifying the
existence thereof in reasonable detail;



     (e) on or prior to each date of delivery of financial statements under paragraph (a) above,
the Borrower shall provide to each Lender a business plan for the following two years, in a form
satisfactory to the Administrative Agent;



     (f) promptly after the same become publicly available, copies of all reports (excluding, in
any event, copies of press releases) which the Borrower sends to its stockholders, and copies of
all registration statements, reports on Form 10-K, Form 10-Q or Form 8-K (or, in each case, any
successor form) and other material reports which the Borrower or any Subsidiary files with the SEC
or any successor or analogous Governmental Authority (other than public offerings of securities
under employee benefit plans or dividend reinvestment plans);



     (g) promptly after the receipt thereof by the Borrower or any Subsidiary, a copy of any
“management letter” received by any such person from its certified public accountants and the
management’s response thereto;



     (h) promptly after the request by any Lender, all documentation and other information that
such Lender reasonably requests in order to comply with its ongoing obligations under applicable
“know your customer” and anti-money laundering rules and regulations, including the Patriot Act;
and



     (i) promptly, from time to time, such other information regarding the operations, business
affairs and financial condition of the Borrower or any Subsidiary, or compliance with the terms of
any Loan Document, as the Administrative Agent or any Lender may reasonably request.



66









 





     Section 5.05. Litigation and Other Notices. Furnish to the Administrative Agent and each
Lender prompt written notice of the following:



     (a) promptly after the Borrower obtains knowledge thereof, any Event of Default or Default,
specifying the nature and extent thereof and the corrective action (if any) taken or proposed to be
taken with respect thereto;



     (b) the filing or commencement of, or any written threat or written notice of intention of any
person to file or commence, any action, suit or proceeding, whether at law or in equity or by or
before any Governmental Authority, against the Borrower or any Affiliate thereof, as to which there
is a reasonable likelihood of an adverse result and that could reasonably be expected to result in
a Material Adverse Effect;



     (c) promptly after the Borrower obtains knowledge thereof, any other development that has
resulted in, or could reasonably be expected to result in, a Material Adverse Effect; and



     (d) any change in the Borrower’s corporate rating by S&P, in the Borrower’s corporate family
rating by Moody’s or in the ratings of the Term Facility by S&P or Moody’s, or any notice from
either such agency indicating its intent to effect such a change or to place the Borrower or the
Term Facility on a “CreditWatch” or “WatchList” or any similar list, in each case with negative
implications, or its cessation of, or its intent to cease, rating the Borrower or the Term
Facility.



     Section 5.06. Information Regarding Collateral. (a) Furnish to the Administrative Agent
prompt written notice of any change (i) in any Loan Party’s corporate name, (ii) in the
jurisdiction of organization or formation of any Loan Party, (iii) in any Loan Party’s identity or
corporate structure or (iv) in any Loan Party’s Federal Taxpayer Identification Number. The
Borrower agrees not to effect or permit any change referred to in the preceding sentence unless all
filings have been made under the Uniform Commercial Code or otherwise that are required in order
for the Collateral Agent to continue at all times following such change to have a valid, legal and
perfected security interest in all the Collateral. The Borrower also agrees promptly to notify the
Administrative Agent if any material portion of the Collateral is damaged or destroyed.



     (b) In the case of the Borrower, each year commencing with the year ended December 31, 2009,
at the time of delivery of the annual financial statements with respect to the preceding fiscal
year pursuant to Section 5.04(a), deliver to the Administrative Agent a certificate of a Financial
Officer setting forth the information required pursuant to Section 1 or 2 of the Perfection
Certificate or confirming that there has been no change in such information since the date of the
Perfection Certificate delivered on the Closing Date or the date of the most recent certificate
delivered pursuant to this Section 5.06.



67









 





     Section 5.07. Maintaining Records; Access to Properties and Inspections; Maintenance of
Ratings. (a) Keep proper books of record and account in which full, true and correct entries in
conformity with GAAP and all requirements of law are made of all material dealings and transactions
in relation to its business and activities. Subject to the provisions of Section 9.16, each Loan
Party will, and will cause each of the Subsidiaries to, permit any representatives designated by
the Administrative Agent or any Lender to visit and inspect the financial records and the
properties of the Borrower or any of the Subsidiaries upon reasonable prior notice to the Borrower
(and, unless a Default or Event of Default shall have occurred and be continuing, on not more than
two occasions during any fiscal year) and to make extracts from and copies of such financial
records, and permit any representatives designated by the Administrative Agent or any Lender to
discuss the affairs, finances and condition of the Borrower or any of the Subsidiaries with the
officers thereof and independent accountants therefor; provided that whether or not a Default or
Event of Default shall have occurred and be continuing, the Borrower shall have the right to
participate in all such discussions.



     (b) Use commercially reasonable efforts to cause the Term Facility to be continuously rated by
S&P and Moody’s on a public basis, and in the case of the Borrower, use commercially reasonable
efforts to maintain a public corporate rating from S&P and a public corporate family rating from
Moody’s, in each case in respect of the Borrower.



     Section 5.08. Use of Proceeds. Use the proceeds of the Loans only for the purposes specified
in the Preliminary Statements.



     Section 5.09. Employee Benefits. (a) Comply in all material respects with the applicable
provisions of ERISA and the Code and (b) furnish to the Administrative Agent as soon as possible
after, and in any event within 10 days after any Responsible Officer of the Borrower knows that,
any ERISA Event has occurred that, alone or together with any other ERISA Events that have
occurred, could reasonably be expected to result in liability of the Borrower and/or the
Subsidiaries in an aggregate amount exceeding $5,000,000, a statement of a Financial Officer of the
Borrower setting forth details as to such ERISA Event and the action, if any, that the Borrower
proposes to take with respect thereto.



     Section 5.10. Compliance with Environmental Laws. Comply, and use reasonable efforts to
cause all lessees and other persons occupying its then current Properties to comply, in all
material respects with all Environmental Laws and Environmental Permits applicable to its
operations and then current Properties; obtain and renew all Environmental Permits necessary for
its operations and then current Properties except for such noncompliance as could not, individually
or in the aggregate, reasonably be expected to result in a Material Adverse Effect; and conduct any
Remedial Action in accordance with Environmental Laws; provided, however, that neither the Borrower
nor any of the Subsidiaries shall be required to undertake any Remedial Action to the extent that
its obligation to do so is being



68









 







contested in good faith and by proper proceedings and appropriate reserves are being
maintained by the Borrower with respect to such circumstances in accordance with GAAP.



     Section 5.11. Preparation of Environmental Reports. If a Default caused by reason of a
breach of Section 3.17 or Section 5.10 shall have occurred and be continuing for more than 20 days
without the Borrower or any Subsidiary commencing activities reasonably likely to cure such
Default, at the written request of the Required Lenders through the Administrative Agent, provide
to the Lenders within 45 days after such request, at the expense of the Loan Parties, an
environmental site assessment report regarding the matters which are the subject of such Default
prepared by an environmental consulting firm reasonably acceptable to the Administrative Agent and
indicating the presence or absence of Hazardous Materials and the estimated cost of any compliance
or remedial action in connection with such Default.



     Section 5.12. Compliance with Laws. Comply with all laws, regulations, consent decrees and
orders of any Governmental Authority applicable to it or its property, except where the failure to
comply, individually or in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect.



     Section 5.13. Further Assurances.



     (a) As soon as practicable and in any event within thirty days of the Closing Date, with
respect to each Mortgage delivered pursuant to Section 4.02(i), cause to be delivered to the
Collateral Agent (i) a policy or policies of title insurance issued by a nationally recognized
title insurance company insuring the Lien of such Mortgage as a valid Lien (with the priority
described therein) on the Mortgaged Property described therein, free of any other Liens except as
expressly permitted by Section 6.02, together with such endorsements and reinsurance as the
Administrative Agent or the Collateral Agent may reasonably request and which are available at
commercially reasonable rates in the jurisdiction where the applicable Mortgaged Property is
located; and (ii) unless the Collateral Agent shall have agreed otherwise in its reasonable
discretion, a survey for which all necessary fees (where applicable) have been paid (1) prepared by
a surveyor reasonably acceptable to the Collateral Agent, (2) dated not earlier than three months
prior to the date of such delivery, (3) certified to the Collateral Agent and the title insurance
company issuing the title insurance policy for such Mortgaged Property pursuant to clause (i),
which certification shall be reasonably acceptable to the Administrative Agent and the Collateral
Agent, and (4) complying with the “Minimum Standard Detail Requirements for ALTA/ACSM Land Title
Surveys”, jointly established and adopted by the American Land Title Association and National
Society of Professional Surveyors in 2005 (except for such deviations as are reasonably acceptable
to the Collateral Agent).



     (b) Use commercially reasonable efforts to obtain, within 60 days following the Closing Date,
landlord consent to a leasehold mortgage in favor of



69









 







the Collateral Agent with respect to the leased premises of Borrower located at 1 Duggar
Drive, Willow Island, West Virginia. If such consent is obtained, Borrower shall take, or cause
its Subsidiaries to take, all further actions that the Collateral Agent may reasonably request in
order to grant, preserve, protect and perfect a valid first priority security interest in such
leased premises, including the execution and delivery of a leasehold mortgage in form and substance
reasonably satisfactory to the Collateral Agent.



     (c) Execute any and all further documents, financing statements, agreements, amendments,
supplements and instruments, and take all further actions (including filing Uniform Commercial Code
and other financing or continuation statements, mortgages, deeds of trust and aircraft mortgages)
that may be required under applicable law, or that the Required Lenders, the Administrative Agent
or the Collateral Agent may reasonably request, in order to effectuate the transactions
contemplated by the Loan Documents and in order to grant, preserve, protect and perfect the
validity and first priority of the security interests created or intended to be created by the
Security Documents in favor of the Collateral Agent for the ratable benefit of the Secured Parties.
The Borrower will cause any subsequently acquired or organized Domestic Subsidiary to become a
Loan Party (in the case of the Target and each Domestic Subsidiary of the Target, by no later than
the Merger Date) by executing the Guarantee and Collateral Agreement and each applicable Security
Document in favor of the Collateral Agent. In addition, from time to time, the Borrower will, at
its cost and expense, promptly secure the Obligations by pledging or creating, or causing to be
pledged or created, perfected security interests with respect to such of the assets and properties
of the Loan Parties as the Administrative Agent or the Required Lenders shall designate (it being
understood that it is the intent of the parties that the Obligations shall be secured by
substantially all the assets of the Borrower and its Domestic Subsidiaries (in the case of the
Target and each Domestic Subsidiary of the Target, such security to be granted by no later than the
Merger Date) (including real and other properties acquired subsequent to the Closing Date but
subject to limitations and exceptions expressly set forth in the Security Documents)). Such
security interests and Liens will be created under the Security Documents and other security
agreements, mortgages, deeds of trust and other instruments and documents in form and substance
reasonably satisfactory to the Collateral Agent, and the Borrower shall deliver or cause to be
delivered to the Lenders all such instruments and documents (including legal opinions, title
insurance policies and lien searches) as the Collateral Agent shall reasonably request to evidence
compliance with this Section. The Borrower agrees to provide such evidence as the Collateral Agent
shall reasonably request as to the perfection and priority status of each such security interest
and Lien. In furtherance of the foregoing, the Borrower will give prompt notice to the
Administrative Agent of the acquisition by it or any of the Subsidiaries of any real property (or
any interest in real property) having a value in excess of $1,000,000.



70









 





     Section 5.14. Interest Rate Protection. No later than the 90th day after the Closing Date,
enter into, and for a minimum of two years thereafter maintain, Hedging Agreements acceptable to
the Administrative Agent that result in at least 50% of the aggregate principal amount of its
funded long-term Indebtedness being effectively subject to a fixed or maximum interest rate
acceptable to the Administrative Agent.



     Section 5.15. Consummation of the Merger. Use commercially reasonable efforts to complete
the Merger (which efforts shall include voting, or causing to be voted, all of the Shares then
owned by the Borrower or any of its Subsidiaries in favor of the Merger, to the extent any such
vote is taken pursuant to the Merger Agreement) in accordance with the terms of the Merger
Agreement as promptly as practicable following the consummation of the Tender Offer.



     Section 5.16. Alpharma Escrow Account. If, on the date that is 45 days after the Closing
Date, any principal remains outstanding under the Alpharma Convertible Notes, deposit an amount
equal to such unpaid principal amount into a Controlled Deposit Account subject to a Deposit
Account Control Agreement in form and substance reasonably satisfactory to the Collateral Agent
(such account, the “Alpharma Escrow Account”). The Deposit Account Control Agreement
governing the Alpharma Escrow Account shall provide that the amounts on deposit in the Alpharma
Escrow Account may only be withdrawn by the Borrower (and withdrawals shall be subject to receipt
by the Collateral Agent and the applicable depositary bank of a certification from the Borrower
(the “Withdrawal Certificate”) that the amounts withdrawn shall be applied) for the
following purposes: (i) to make principal payments with respect to the Alpharma Convertible Notes,
(ii) to pay Acquisition Consideration (including Merger Consideration) due upon the conversion of
the Alpharma Convertible Notes in accordance with their terms or (iii) to voluntarily prepay (x)
Loans hereunder or (y) following payment in full of the principal amount of the Loans hereunder, to
repay loans outstanding under the Revolving Loan Credit Agreement (which repayment shall be
accompanied by a permanent reduction in the commitments under the Revolving Loan Credit Agreement
in an amount equal to such repayment). Borrower agrees that any amounts withdrawn from the
Alpharma Escrow Account shall be applied for the purpose specified in the Withdrawal Certificate
promptly and in any event not later than 3 Business Days following such withdrawal.



ARTICLE 6

Negative Covenants




     The Borrower covenants and agrees with each Lender that, so long as this Agreement shall
remain in effect and until the Commitments have been terminated and the principal of and interest
on each Loan, all Fees and all other expenses or amounts payable under any Loan Document have been
paid in full,



71









 







unless the Required Lenders shall otherwise consent in writing, the Borrower will not, and
will not cause or permit any of the Subsidiaries to:



     Section 6.01. Indebtedness. Incur, create, assume or permit to exist any Indebtedness,
except:



     (a) Indebtedness for borrowed money existing on the Closing Date and set forth in Schedule
6.01 and any extensions, renewals or replacements of such Indebtedness to the extent that the
principal amount of such Indebtedness is not increased, neither the final maturity nor the weighted
average life to maturity of such Indebtedness is decreased, such Indebtedness, if subordinated to
the Obligations, remains so subordinated on terms no less favorable to the Lenders, and the
original obligors in respect of such Indebtedness remain the only obligors thereon;



     (b) Indebtedness outstanding from time to time hereunder and all guarantees thereof by
Subsidiary Guarantors;



     (c) intercompany Indebtedness of the Borrower and the Subsidiaries to the extent permitted by
Section 6.04(c) so long as any such Indebtedness owed by any Loan Party to a person that is not a
Loan Party is subordinated to the Obligations pursuant to an Affiliate Subordination Agreement;



     (d) Guarantees by any Loan Party of Indebtedness of any other Loan Party;



     (e) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition,
construction or improvement of any fixed or capital assets, and extensions, renewals and
replacements of any such Indebtedness that do not increase the outstanding principal amount
thereof; provided that (i) such Indebtedness is incurred prior to or within 180 days after such
acquisition or the completion of such construction or improvement and (ii) the aggregate principal
amount of Indebtedness permitted by this Section 6.01(e), when combined with the aggregate
principal amount of all Capital Lease Obligations incurred pursuant to Section 6.01(f) shall not
exceed $25,000,000 at any time outstanding;



     (f) Capital Lease Obligations in an aggregate principal amount, when combined with the
aggregate principal amount of all Indebtedness incurred pursuant to Section 6.01(e), not in excess
of $25,000,000 at any time outstanding;



     (g) Indebtedness under performance bonds or with respect to workers’ compensation claims, in
each case incurred in the ordinary course of business;



     (h) Indebtedness incurred by Foreign Subsidiaries in an aggregate principal amount not
exceeding $25,000,000 at any time outstanding;



72









 





     (i) Indebtedness of any person that becomes a Subsidiary after the Closing Date; provided that
(i) such Indebtedness exists at the time such person becomes a Subsidiary and is not created in
contemplation of or in connection with such person becoming a Subsidiary, (ii) immediately before
and after such person becomes a Subsidiary, no Default or Event of Default shall have occurred and
be continuing and (iii) the aggregate principal amount of Indebtedness permitted by this Section
6.01(i) shall not exceed $25,000,000 at any time outstanding;



     (j) Indebtedness created under Hedging Agreements that (i) are required by Section 5.14 or
(ii) are entered into in the ordinary course of business to hedge or mitigate risks to which the
Borrower or any Subsidiary is exposed in the conduct of its business or the management of its
liabilities and not for speculative purposes or entered into to take advantage of reduced interest
rates by converting fixed rate obligations into floating rate obligations;



     (k) Permitted ARS Indebtedness; provided that the specified share of the Net Cash Proceeds of
such Indebtedness shall be applied as set forth in Section 2.13(e);



     (l) Indebtedness of the Borrower outstanding from time to time under the Revolving Loan Credit
Agreement in an aggregate principal amount not to exceed $475,000,000 and all guarantees thereof by
any Subsidiary Guarantor and any refinancings, renewals or extensions of all or any part thereof;
provided that (i) the terms (other than pricing and yield) of such refinancing, renewing or
extending indebtedness (the “Revolving Refinancing Indebtedness”) or of any agreement
entered into or of any instrument issued in connection therewith are not less favorable in any
material respect to the Loan Parties or the Lenders than the terms of the Indebtedness being
refinanced, renewed or extended (“Revolving Refinanced Indebtedness”) or any agreement or
instrument governing the terms thereof, (ii) the aggregate amount of loans and unused commitments
under the Revolving Refinanced Indebtedness at the time of such refinancing, renewal or extension
is not increased by the Revolving Refinancing Indebtedness except by an amount equal to reasonable
fees and expenses incurred in connection with such refinancing, renewal or extension, (iii) the
obligors of the Revolving Refinancing Indebtedness shall not include any person that is not an
obligor on the Revolving Refinanced Indebtedness (unless such obligor is or becomes at such time a
Loan Party), and (iv) if the Revolving Refinancing Indebtedness is secured, it is secured on an
equal and ratable or junior basis to the Obligations on substantially the same terms as the
Revolving Indebtedness is secured on the Closing Date and otherwise on terms reasonably acceptable
to the Administrative Agent;



     (m) other Indebtedness of the Borrower or the Subsidiaries in an aggregate principal amount
not exceeding $50,000,000 at any time outstanding; provided that the aggregate principal amount of
Indebtedness of Subsidiaries that are not Subsidiary Guarantors permitted by this clause shall not
exceed $25,000,000 at any time outstanding; and



73









 





     (n) Indebtedness outstanding under the Alpharma Convertible Notes.



     Section 6.02. Liens. Create, incur, assume or permit to exist any Lien on any property or
assets (including Equity Interests or other securities of any person, including any Subsidiary) now
owned or hereafter acquired by it or on any income or revenues or rights in respect thereof, or
assign or transfer any such income or revenues or rights in respect thereof, except:



     (a) Liens on property or assets of the Borrower and the Subsidiaries existing on the Closing
Date and set forth in Schedule 6.02; provided that such Liens shall extend only to those assets to
which they extend on the Closing Date and shall secure only those obligations which they secure on
the Closing Date;



     (b) any Lien (i) created under the Loan Documents or (ii) granted in favor of the swingline
lender or issuing bank under the Revolving Loan Credit Agreement pursuant to arrangements designed
to eliminate such swingline lender’s or issuing banks’ risk with respect to a defaulting lender’s
or defaulting lenders’ participation in swingline loans or letters of credit, respectively, as
contemplated by Section 2.03(a) or Section 2.04(a), respectively, of the Revolving Loan Credit
Agreement;



     (c) any Lien existing on any property or asset prior to the acquisition thereof by the
Borrower or any Subsidiary or existing on any property or assets of any person that becomes a
Subsidiary after the Closing Date prior to the time such person becomes a Subsidiary, as the case
may be; provided that (i) such Lien is not created in contemplation of or in connection with such
acquisition or such person becoming a Subsidiary, (ii) such Lien does not apply to any other
property or assets of the Borrower or any Subsidiary, (iii) such Lien secures only those
obligations which it secures on the date of such acquisition or the date such person becomes a
Subsidiary, as the case may be and (iv) such Lien does not materially interfere with the intended
use, occupancy and operation of any asset or property subject thereto;



     (d) Liens for taxes, assessments, charges or levies not yet due or which are being contested
in compliance with Section 5.03;



     (e) carriers’, warehousemen’s, mechanics’, landlord’s (or lessor’s under operating leases),
materialmen’s, repairmen’s, custom and revenue authorities’, or other like Liens arising in the
ordinary course of business and securing obligations that are not due and payable beyond the
applicable grace period therefor or that are being contested in compliance with Section 5.03;



     (f) pledges and deposits made in the ordinary course of business in compliance with workmen’s
compensation, unemployment insurance and other social security laws or regulations;



74









 





     (g) deposits to secure the performance of bids, trade contracts (other than for Indebtedness),
leases (other than Capital Lease Obligations), statutory obligations, liability to insurance
carriers under insurance or self-insurance arrangements, surety and appeal bonds, performance
bonds, statutory bankers’ liens on moneys held in bank accounts and other obligations of a like
nature, in each case incurred in the ordinary course of business;



     (h) zoning restrictions, easements, rights-of-way, restrictions on use of real property and
other similar encumbrances incurred in the ordinary course of business which, in the aggregate, are
not substantial in amount and do not materially detract from the value of the property subject
thereto or interfere with the ordinary conduct of the business of the Borrower or any of the
Subsidiaries;



     (i) purchase money security interests in real property, improvements thereto or equipment
hereafter acquired (or, in the case of improvements, constructed) by the Borrower or any
Subsidiary; provided that (i) such security interests secure Indebtedness permitted by Section
6.01, (ii) such security interests are incurred, and the Indebtedness secured thereby is created,
within 180 days after such acquisition (or construction), (iii) the Indebtedness secured thereby
does not exceed the lesser of the cost or the fair market value of such real property, improvements
or equipment at the time of such acquisition (or construction) and (iv) such security interests do
not apply to any other property or assets of the Borrower or any Subsidiary;



     (j) Liens deemed to exist in connection with Capital Lease Obligations permitted under Section
6.01;



     (k) attachment or judgment Liens not constituting an Event of Default under Article 7;



     (l) Liens on assets of Foreign Subsidiaries; provided that (i) such Liens do not extend to, or
encumber, assets that constitute Collateral or the Equity Interests of any of the Subsidiaries, and
(ii) such Liens extending to the assets of any Foreign Subsidiary secure only Indebtedness incurred
by such Foreign Subsidiary pursuant to Section 6.01(h);



     (m) Liens in favor of any Governmental Authority with respect to progress payments under any
governmental contract entered into in the ordinary course of business;



     (n) Liens on Margin Stock if and to the extent that the value of all such Margin Stock exceeds
25% of the value of the total assets subject to the restrictions on Liens set forth in this Section
6.02;



     (o) Liens on auction rate securities of the Borrower or any other Loan Party (or on the
securities account to which such auction rate securities are credited (so long as no other
securities are credited thereto) and the proceeds



75









 







thereof); provided that (i) such Liens secure Permitted ARS Indebtedness and (ii) such Liens
do not apply to any other property or assets of the Borrower or any Subsidiary;



     (p) licenses, sublicenses, leases and subleases not relating to any financing, granted to
third persons in the ordinary course of business and not interfering in any material respect with
the business of the Borrower and the Subsidiaries;



     (q) Liens attaching to assets (other than Collateral) with an aggregate fair market value at
the time of attachment not in excess of, and securing liabilities not in excess of, $20,000,000 in
the aggregate at any time outstanding; and



     (r) Liens securing obligations under the Revolving Loan Documents or securing Revolving
Refinancing Indebtedness permitted by Section 6.01(l) covering Collateral that is also subject to
Liens in favor of the Collateral Agent for the benefit of the Secured Parties (“Revolving
Liens”); provided that such Liens are pari passu with, or junior to, the Liens securing the
Obligations on terms substantially the same as those applicable to the Liens securing the
obligations under the Revolving Loan Documents on the Closing Date or otherwise on terms reasonably
acceptable to the Administrative Agent.



     Section 6.03. Sale and Leaseback Transactions. Enter into any arrangement, directly or
indirectly, with any person whereby it shall sell or transfer any property, real or personal, used
or useful in its business, whether now owned or hereafter acquired, and thereafter rent or lease
such property or other property which it intends to use for substantially the same purpose or
purposes as the property being sold or transferred unless (a) the sale or transfer of such property
is permitted by Section 6.05 and (b) any Capital Lease Obligations or Liens arising in connection
therewith are permitted by Sections 6.01 and 6.02, as the case may be.



     Section 6.04. Investments, Loans and Advances. Purchase, hold or acquire any Equity
Interests, evidences of indebtedness or other securities of, make or permit to exist any loans or
advances to, or make or permit to exist any similar investment or any other similar interest in,
any other person, except:



     (a) (i) investments by the Borrower and the Subsidiaries existing on the Closing Date in the
Equity Interests of the Subsidiaries and other investments existing on the Closing Date and set
forth on Schedule 6.04(a) and (ii) additional investments by the Borrower and the Subsidiaries in
the Equity Interests of the Subsidiaries; provided that (A) any such Equity Interests held by a
Loan Party shall be pledged pursuant to the Guarantee and Collateral Agreement (subject to the
limitations referred to therein) and (B) the aggregate amount of investments made after the Closing
Date by Loan Parties in, and loans and advances made after the Closing Date by Loan Parties to,
Subsidiaries that are not Loan Parties



76









 





(determined without regard to any write-downs or write-offs of such investments, loans and
advances) shall not exceed $20,000,000 at any time outstanding;



     (b) Permitted Investments;



     (c) loans or advances made by the Borrower to any Subsidiary and made by any Subsidiary to the
Borrower or any other Subsidiary; provided that (i) any such loans and advances made by a Loan
Party shall be evidenced by a promissory note pledged to the Collateral Agent for the ratable
benefit of the Secured Parties pursuant to the Guarantee and Collateral Agreement, (ii) such loans
and advances made to any Loan Party by any Subsidiary that is not a Loan Party shall be unsecured
and subordinated to the Obligations pursuant to an Affiliate Subordination Agreement and (iii) the
amount of such loans and advances made by Loan Parties to Subsidiaries that are not Loan Parties
shall be subject to the limitation set forth in clause (a) above;



     (d) repurchases by the Borrower of its common stock to the extent permitted under Section
6.06;



     (e) Guarantees by any Loan Party of the Convertible Notes;



     (f) extensions of trade credit in the ordinary course of business;



     (g) investments received in connection with the bankruptcy or reorganization of, or settlement
of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary
course of business;



     (h) loans and advances to officers and employees of the Borrower or any Subsidiary in the
ordinary course of business (including for travel, entertainment, payroll advances and relocation
expenses) in an aggregate principal amount outstanding at any time when taken together with the
aggregate principal amount outstanding of investments made under clause (i) below (in each case
determined without regard to any write-downs or write-offs of such loans and advances) not to
exceed $20,000,000 at such time;



     (i) promissory notes or other evidences of Indebtedness received by the Borrower from officers
or employees of the Borrower or any Subsidiary (or any loan or advance made to any Plan) in
connection with the purchase of Equity Interests in the Borrower in an aggregate principal amount
outstanding at any time when taken together with the aggregate principal amount outstanding of
investments made under clause (h) above (in each case determined without regard to any write-downs
or write-offs of such loans and advances) not to exceed $20,000,000 at such time;



     (j) the Borrower and the Subsidiaries may enter into Hedging Agreements permitted under
Section 6.01(j);



77









 





     (k) the Acquisition;



     (l) the Borrower or any Subsidiary may acquire all or substantially all the assets of a person
or line of business of such person, or not less than 100% of the Equity Interests (other than
directors’ qualifying shares) of a person (referred to herein as the “Acquired Entity”);
provided that (i) such acquisition was not preceded by an unsolicited tender offer for such Equity
Interests by, or proxy contest initiated by, the Borrower or any Subsidiary; (ii) the Acquired
Entity shall be in a similar line of business as that of the Borrower or any of its Subsidiaries as
conducted during the current and most recent calendar year (or business activities reasonably
incidental thereto); and (iii) at the time of such transaction (A) both before and after giving
effect thereto, no Default or Event of Default shall have occurred and be continuing; (B) the
Borrower would be in compliance with the covenants set forth in Sections 6.11 and 6.12 as of the
most recently completed period of four consecutive fiscal quarters ending prior to such transaction
for which the financial statements and certificates required by Section 5.04(a) or 5.04(b), as the
case may be, and 5.04(c) have been delivered or for which comparable financial statements have been
filed with the SEC, after giving pro forma effect to such transaction and to any other event
occurring after such period as to which pro forma recalculation is appropriate (including any other
transaction described in this Section 6.04(l) occurring after such period) as if such transaction
had occurred as of the first day of such period (assuming, for purposes of pro forma compliance
with Section 6.12, that the maximum Leverage Ratio permitted at the time by such Section was in
fact 0.25 to 1.00 less than the ratio actually provided for in such Section at such time); (C)
after giving effect to such acquisition, the aggregate amount of unused and available Revolving
Credit Commitments (as defined in the Revolving Loan Credit Agreement), cash and Permitted
Investments of the Borrower and the Subsidiaries must be at least $50,000,000; (D) the total
consideration paid in connection with such acquisition and any other acquisitions pursuant to this
Section 6.04(l) (including any Indebtedness of the Acquired Entity that is assumed by the Borrower
or any Subsidiary following such acquisition and any payments following such acquisition pursuant
to earn-out provisions or similar obligations) shall not in the aggregate exceed $200,000,000
during the term of this Agreement; (E) the Borrower shall have delivered a certificate of a
Financial Officer, certifying as to the foregoing and containing reasonably detailed calculations
in support thereof, in form and substance satisfactory to the Administrative Agent and (F) the
Borrower shall comply, and shall cause the Acquired Entity to comply, with the applicable
provisions of Section 5.13 and the Security Documents (any acquisition of an Acquired Entity
meeting all the criteria of this Section 6.04(l) being referred to herein as a “Permitted
Acquisition”);



     (m) investments, loans or advances made in connection with the license, development,
manufacture or distribution of pharmaceutical compounds or products or medical devices, in each
case from or through third parties (including



78









 







other pharmaceutical companies) by collaborative efforts or otherwise and in the ordinary
course of business;



     (n) investment received as consideration for Asset Sales permitted by Section 6.05(b); and



     (o) additional investments, loans and advances by the Borrower and the Subsidiaries (other
than an investment of the type described in clause (h) or (i) above) so long as the aggregate
amount invested, loaned or advanced pursuant to this paragraph (o) (determined without regard to
any write-downs or write-offs of such investments, loans and advances) does not exceed $50,000,000
in the aggregate.



     Section 6.05. Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or
consolidate with any other person, or permit any other person to merge into or consolidate with it,
or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of
transactions) all or substantially all the assets (whether now owned or hereafter acquired) of the
Borrower or less than all the Equity Interests of any Subsidiary, or purchase, lease or otherwise
acquire (in one transaction or a series of transactions) all or any substantial part of the assets
of any other person or assets that are substantial in relation to the Borrower and the Subsidiaries
taken as a whole, except that (i) the Borrower and any Subsidiary may purchase and sell inventory
in the ordinary course of business and (ii) if at the time thereof and immediately after giving
effect thereto no Event of Default or Default shall have occurred and be continuing (A) any Wholly
Owned Subsidiary may merge into the Borrower in a transaction in which the Borrower is the
surviving corporation, (B) any Wholly Owned Subsidiary may merge into or consolidate with any other
Wholly Owned Subsidiary in a transaction in which the surviving entity is a Wholly Owned Subsidiary
and no person other than the Borrower or a Wholly Owned Subsidiary receives any consideration
(provided that if any party to any such transaction is a Loan Party, the surviving entity of such
transaction shall be a Loan Party), (C) the Acquisition shall be permitted and (D) the Borrower and
the Subsidiaries may make Permitted Acquisitions.



     (b) Make any Asset Sale otherwise permitted under paragraph (a) above unless (i) such Asset
Sale is for consideration at least 85% of which is cash; provided that (x) any Asset Sales
constituting licenses of intellectual property relating to pharmacological products or medical
devices may be for consideration at least 85% of which is cash or royalty payments and (y) any
Asset Sale constituting a Required Divestiture may be for consideration at least 85% of which is
cash payable within 20 months following the date of consummation of such Asset Sale, (ii) such
consideration is at least equal to the fair market value of the assets being sold, transferred,
leased or disposed of and (iii) the fair market value of all assets sold, transferred, leased or
disposed of pursuant to this paragraph (b) (other than auction rate securities and other than
Required Divestitures) shall not exceed $200,000,000 in the aggregate during the term of this
Agreement.



79









 





     Section 6.06. Restricted Payments; Restrictive Agreements. (a) Declare or make, or agree to
declare or make, directly or indirectly, any Restricted Payment (including pursuant to any
Synthetic Purchase Agreement), or incur any obligation (contingent or otherwise) to do so;
provided, however, that (i) the Borrower may declare and pay dividends or make other distributions
on its capital stock to the extent made solely with common stock of the Borrower, (ii) any
Subsidiary may declare and pay dividends or make other distributions ratably to its equity holders,
(iii) so long as no Event of Default or Default shall have occurred and be continuing or would
result therefrom, the Borrower may repurchase its Equity Interests owned by employees of the
Borrower or the Subsidiaries or make payments to employees of the Borrower or the Subsidiaries upon
termination of employment in connection with the exercise of stock options, stock appreciation
rights or similar equity incentives or equity based incentives pursuant to management incentive
plans or in connection with the death or disability of such employees in an aggregate amount not to
exceed $5,000,000 in any fiscal year, (iv) so long as no Event of Default or Default shall have
occurred and be continuing or would result therefrom, the Borrower may make additional Restricted
Payments in an aggregate amount not to exceed $5,000,000 in any fiscal year and (v) the Borrower
may pay the Acquisition Consideration.



     (b) Enter into, incur or permit to exist any agreement or other arrangement that prohibits,
restricts or imposes any condition upon (i) the ability of the Borrower or any Subsidiary to
create, incur or permit to exist any Lien upon any of its property or assets, or (ii) the ability
of any Subsidiary to pay dividends or other distributions with respect to any of its Equity
Interests or to make or repay loans or advances to the Borrower or any other Subsidiary or to
Guarantee Indebtedness of the Borrower or any other Subsidiary; provided that (A) the foregoing
shall not apply to restrictions and conditions imposed by law, any Loan Document, the Revolving
Loan Credit Agreement or any agreement governing Revolving Refinancing Indebtedness (subject to
clause (i) of Section 6.01(l)), (B) the foregoing shall not apply to customary restrictions and
conditions contained in agreements relating to the sale of a Subsidiary pending such sale, provided
such restrictions and conditions apply only to the Subsidiary that is to be sold and such sale is
permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on
any Foreign Subsidiary by the terms of any Indebtedness of such Foreign Subsidiary permitted to be
incurred hereunder, (D) clause (i) of the foregoing shall not apply to restrictions or conditions
imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such
restrictions or conditions apply only to the property or assets securing such Indebtedness and (E)
clause (i) of the foregoing shall not apply to customary provisions in leases and other contracts
restricting the assignment thereof.



     Section 6.07. Transactions with Affiliates. Sell or transfer any property or assets to, or
purchase or acquire any property or assets from, or otherwise engage in any other transactions
with, any of its Affiliates, except that (a) this Section shall not apply to transactions solely
between or among Loan Parties and (b) the



80









 







Borrower or any Subsidiary may engage in any of the foregoing transactions in the ordinary
course of business at prices and on terms and conditions not less favorable to the Borrower or such
Subsidiary than could be obtained on an arm’s-length basis from unrelated third parties.



     Section 6.08. Business of Borrower and Subsidiaries. Engage to any material extent at any
time in any business or business activity other than the business currently conducted by it and
business activities reasonably incidental thereto.



     Section 6.09. Other Indebtedness and Agreements. (a) Permit (i) any waiver, supplement,
modification or amendment of the Convertible Notes, the Convertible Note Indenture or any other
document relating to the Convertible Notes, (ii) except in connection with a refinancing permitted
by Section 6.01(l), any waiver, supplement, modification or amendment of the Revolving Loan
Documents or of documents governing Revolving Refinancing Indebtedness, if such waiver, supplement,
modification or amendment would (A) increase the aggregate amount of the commitments thereunder
except by an amount equal to reasonable fees and expenses incurred in connection with such
amendment, (B) result in the terms of such Indebtedness or of any agreement entered into or of any
instrument issued in connection therewith to be less favorable in any material respect to the Loan
Parties or the Lenders, (C) add any obligor (unless such obligor is or becomes at such time a Loan
Party) or (D) cause the Revolving Indebtedness to be secured on a basis other than equally and
ratably with, or junior to, the Obligations on substantially the same terms as the Revolving
Indebtedness is secured on the Closing Date except as shall be acceptable to the Administrative
Agent, (iii) any waiver, supplement, modification, amendment, termination or release of any other
indenture, instrument or agreement pursuant to which any other Material Indebtedness of the
Borrower or any of the Subsidiaries is outstanding if the effect of such waiver, supplement,
modification, amendment, termination or release would materially increase the obligations of the
obligor or confer additional material rights on the holder of such Indebtedness in a manner adverse
to the Borrower, any of the Subsidiaries or the Lenders or (iv) any waiver, supplement,
modification or amendment of (A) its certificate of incorporation, bylaws, operating, management or
partnership agreement or other organizational documents or (B) any other agreement that is material
to the conduct of its business, to the extent any such waiver, supplement, modification or
amendment would be adverse to the Lenders in any material respect.



     (b) (i) Permit any alteration, amendment or other change or supplement to the Tender Offer
Documentation or the Merger Agreement that could reasonably be expected to be materially adverse to
the rights or interests of the Administrative Agent or the Lenders or the ability of the Joint
Arrangers to syndicate the Term Facility or (ii) permit any waiver, alteration, amendment or other
change or supplement to any condition to the Tender Offer Documentation or the Merger Agreement
without the prior written consent of the Joint Arrangers (such consent not to be unreasonably
withheld or delayed).



81









 





     (c) (i) Make any distribution, whether in cash, property, securities or a combination thereof,
other than regular scheduled payments of principal and interest as and when due (to the extent not
prohibited by applicable subordination provisions), in respect of, or pay, or commit to pay, or
directly or indirectly (including pursuant to any Synthetic Purchase Agreement) redeem, repurchase,
retire or otherwise acquire for consideration, or set apart any sum for the aforesaid purposes, any
Indebtedness except (A) the payment of the Indebtedness created hereunder, (B) the payment of the
Revolving Indebtedness, (C) refinancing of Indebtedness permitted by Section 6.01(a), (D) the
payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of
the property or assets securing such Indebtedness, (E) any payment of Indebtedness owed by Foreign
Subsidiaries that is not subordinated in right of payment to the Obligations, (F) so long as no
Default or Event of Default shall have occurred and be continuing, any payments with respect to
Indebtedness that (x) has an aggregate outstanding principal amount not greater than $25,000,000
and (y) is not subordinated in right of payment to the Obligations and (G) the payment of
Indebtedness under the Alpharma Convertible Notes or (ii) pay in cash any amount in respect of any
Indebtedness or preferred Equity Interests that may at the obligor’s option be paid in kind or in
other securities.



     Section 6.10. Capital Expenditures. Permit the aggregate amount of Capital Expenditures made
by the Borrower and the Subsidiaries in any fiscal year set forth below to exceed the amount set
forth below for such fiscal year:



	 	 	 	 	 
	Period	 	Amount
	Fiscal year ended 12/31/09

	 	$	95,000,000	 
	Fiscal year ended 12/31/10

	 	$	95,000,000	 
	Fiscal year ended 12/31/11

	 	$	100,000,000	 
	Fiscal year ended 12/31/12

	 	$	105,000,000	 






     The amount of permitted Capital Expenditures set forth above in respect of any fiscal year
commencing with the fiscal year ending on December 31, 2010, shall be increased (but not decreased)
by (a) an amount equal to 50% of the amount of unused permitted Capital Expenditures for the
immediately preceding fiscal year less (b) an amount equal to unused Capital Expenditures carried
forward to such preceding fiscal year.



     Section 6.11. Consolidated Interest Expense Coverage Ratio. Permit the Consolidated Interest
Expense Coverage Ratio for any period of four consecutive fiscal quarters, in each case taken as
one accounting period, ending on a date set forth below (excluding any such date occurring prior to
the last day of the first full fiscal quarter following the Closing Date) to be less than:



     (a) for any such date occurring on or prior to the last day of the fiscal quarter in which the
Skelaxin Trigger Event occurs, the ratio set forth below opposite such date:



82









 





	 	 	 
	Date	 	Ratio
	03/31/09

	 	4.00:1
	06/30/09
	 	4.00:1
	09/30/09
	 	4.00:1
	12/31/09
	 	4.00:1
	03/31/10
	 	4.00:1
	06/30/10
	 	4.00:1
	09/30/10
	 	4.00:1
	12/31/10
	 	4.00:1
	03/31/11
	 	4.00:1
	06/30/11
	 	4.00:1
	09/30/11
	 	4.00:1
	12/31/11
	 	4.00:1
	03/31/12
	 	4.00:1
	06/30/12
	 	4.00:1
	09/30/12
	 	4.00:1






     (b) thereafter, the ratio set forth below opposite such date:



	 	 	 
	Date	 	Ratio
	03/31/09
	 	3.75:1
	06/30/09
	 	3.75:1
	09/30/09
	 	3.75:1
	12/31/09
	 	3.75:1
	03/31/10
	 	3.75:1
	06/30/10
	 	3.75:1
	09/30/10
	 	4.00:1
	12/31/10
	 	4.00:1
	03/31/11
	 	4.00:1
	06/30/11
	 	4.00:1
	09/30/11
	 	4.00:1
	12/31/11
	 	4.00:1
	03/31/12
	 	4.00:1
	06/30/12
	 	4.00:1
	09/30/12
	 	4.00:1






     Section 6.12. Maximum Leverage Ratio. Permit the Leverage Ratio on any date during a period
set forth below (excluding any such date prior to the last day of the first full fiscal quarter to
end following the Closing Date) to be greater than:



     (a) for any date prior to the last day of the fiscal quarter in which the Skelaxin Trigger
Event occurs, the ratio set forth below opposite such period:




83









 






	 	 	 
	Period	 	Ratio
	03/31/09 through 06/29/09
	 	2.25:1
	06/30/09 through 09/29/09
	 	2.50:1
	09/30/09 through 12/30/09
	 	2.65:1
	12/31/09 through 03/30/10
	 	2.30:1
	03/31/10 through 06/29/10
	 	2.10:1
	06/30/10 through 09/29/10
	 	2.00:1
	09/30/10 through 12/30/10
	 	1.75:1
	12/31/10 through 03/30/11
	 	1.50:1
	03/31/11 through 06/29/11
	 	1.50:1
	06/30/11 through 09/29/11
	 	1.50:1
	09/30/11 through 12/30/11
	 	1.50:1
	12/31/11 through 03/30/12
	 	1.50:1
	03/31/12 through 06/29/12
	 	1.50:1
	06/30/12 through 09/29/12
	 	1.50:1
	09/30/12 through Maturity Date
	 	1.50:1






     (b) for any such period thereafter, the ratio set forth below opposite such period:



	 	 	 
	Period	 	Ratio
	03/31/09 through 06/29/09
	 	2.25:1
	06/30/09 through 09/29/09
	 	2.50:1
	09/30/09 through 12/30/09
	 	3.25:1
	12/31/09 through 03/30/10
	 	3.25:1
	03/31/10 through 06/29/10
	 	3.25:1
	06/30/10 through 09/29/10
	 	3.15:1
	09/30/10 through 12/30/10
	 	2.70:1
	12/31/10 through 03/30/11
	 	2.10:1
	03/31/11 through 06/29/11
	 	2.00:1
	06/30/11 through 09/29/11
	 	2.00:1
	09/30/11 through 12/30/11
	 	2.00:1
	12/31/11 through 03/30/12
	 	2.00:1
	03/31/12 through 06/29/12
	 	1.50:1
	06/30/12 through 09/29/12
	 	1.50:1
	09/30/12 through Maturity Date
	 	1.50:1






     Section 6.13. Fiscal Year. Change the end of its fiscal year from December 31 to any other
date.



     Section 6.14. Certain Equity Securities. Issue any Equity Interest that is not Qualified
Capital Stock.



84









 





ARTICLE 7

Events of Default




     In case of the happening of any of the following events (“Events of Default”):



     (a) any representation or warranty made or deemed made in or in connection with any Loan
Document, or any representation, warranty, statement or information contained in any report,
certificate, financial statement or other instrument furnished in connection with or pursuant to
any Loan Document, shall prove to have been false or misleading in any material respect when so
made, deemed made or furnished;



     (b) default shall be made in the payment of any principal of any Loan when and as the same
shall become due and payable, whether at the due date thereof or at a date fixed for prepayment
thereof or by acceleration thereof or otherwise;



     (c) default shall be made in the payment of any interest on any Loan or any Fee or any other
amount (other than an amount referred to in (b) above) due under any Loan Document, when and as the
same shall become due and payable, and such default shall continue unremedied for a period of three
Business Days;



     (d) default shall be made in the due observance or performance by the Borrower or any
Subsidiary of any covenant, condition or agreement contained in Section 5.01(a), 5.02, 5.05, 5.08
or 5.16 or in Article 6;



     (e) default shall be made in the due observance or performance by the Borrower or any
Subsidiary of any covenant, condition or agreement contained in any Loan Document (other than those
specified in (b), (c) or (d) above) and such default shall continue unremedied for a period of 30
days after the earlier of (i) notice thereof from the Administrative Agent or any Lender to the
Borrower or (ii) knowledge thereof of the Borrower;



     (f) (i) the Borrower or any Subsidiary shall fail to pay any principal or interest, regardless
of amount, due in respect of any Material Indebtedness, when and as the same shall become due and
payable, (ii) any other event or condition occurs that results in any Material Indebtedness
becoming due prior to its scheduled maturity or that enables or permits (with or without the giving
of notice, the lapse of time or both) the holder or holders of any Material Indebtedness (other
than the Revolving Indebtedness) or any trustee or agent on its or their behalf to cause any
Material Indebtedness (other than the Revolving Indebtedness) to become due, or to require the
prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided
that this clause (ii) shall not apply to secured Indebtedness that becomes due as a result of the
voluntary sale or transfer of the property or assets securing such Indebtedness or



85









 





(iii) any “Event of Default” (as defined in the Revolving Loan Credit Agreement) shall occur;




     (g) an involuntary proceeding shall be commenced or an involuntary petition shall be filed in
a court of competent jurisdiction seeking (i) relief in respect of the Borrower or any Subsidiary,
or of a substantial part of the property or assets of the Borrower or a Subsidiary, under Title 11
of the United States Code, as now constituted or hereafter amended, or any other Federal, state or
foreign bankruptcy, insolvency, receivership or similar law, (ii) the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official for the Borrower or any
Subsidiary or for a substantial part of the property or assets of the Borrower or a Subsidiary or
(iii) the winding-up or liquidation of the Borrower or any Subsidiary; and such proceeding or
petition shall continue undismissed for 60 days or an order or decree approving or ordering any of
the foregoing shall be entered;



     (h) the Borrower or any Subsidiary shall (i) voluntarily commence any proceeding or file any
petition seeking relief under Title 11 of the United States Code, as now constituted or hereafter
amended, or any other Federal, state or foreign bankruptcy, insolvency, receivership or similar
law, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any
proceeding or the filing of any petition described in (g) above, (iii) apply for or consent to the
appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for
the Borrower or any Subsidiary or for a substantial part of the property or assets of the Borrower
or any Subsidiary, (iv) file an answer admitting the material allegations of a petition filed
against it in any such proceeding, (v) make a general assignment for the benefit of creditors, (vi)
become unable, admit in writing its inability or fail generally to pay its debts as they become due
or (vii) take any action for the purpose of effecting any of the foregoing;



     (i) one or more judgments shall be rendered against the Borrower, any Subsidiary or any
combination thereof and the same shall remain undischarged for a period of 30 consecutive days
during which execution shall not be effectively stayed, or any action shall be legally taken by a
judgment creditor to levy upon assets or properties of the Borrower or any Subsidiary to enforce
any such judgment and such judgment either (i) is for the payment of money in an aggregate amount
in excess of $35,000,000 or (ii) is for injunctive relief and could reasonably be expected to
result in a Material Adverse Effect;



     (j) an ERISA Event shall have occurred that, when taken together with all other such ERISA
Events, could reasonably be expected to result in liability of the Borrower and its ERISA
Affiliates in an aggregate amount exceeding $35,000,000;



     (k) any Guarantee under the Guarantee and Collateral Agreement for any reason shall cease to
be in full force and effect (other than in accordance with



86









 







its terms), or any Guarantor shall deny in writing that it has any further liability under the
Guarantee and Collateral Agreement (other than as a result of the discharge of such Guarantor in
accordance with the terms of the Loan Documents);



     (l) any security interest purported to be created by any Security Document shall cease to be,
or shall be asserted by the Borrower or any other Loan Party not to be, a valid, perfected, first
priority (except as otherwise expressly provided in this Agreement or such Security Document)
security interest in the securities, assets or properties covered thereby, except to the extent
that any such loss of perfection or priority results from the failure of the Collateral Agent to
(i) maintain possession of certificates representing securities pledged under the Guarantee and
Collateral Agreement or (ii) file or record any financing statement delivered to the Collateral
Agent by the Borrower; or



     (m) there shall have occurred a Change in Control;



     then, and in every such event (other than an event with respect to the Borrower described in
paragraph (g) or (h) above), and at any time thereafter during the continuance of such event, the
Administrative Agent may, and at the request of the Required Lenders shall, by notice to the
Borrower, take either or both of the following actions, at the same or different times: (i)
terminate forthwith the Commitments and (ii) declare the Loans then outstanding to be forthwith due
and payable in whole or in part, whereupon the principal of the Loans so declared to be due and
payable, together with accrued interest thereon and any unpaid accrued Fees and all other
liabilities of the Borrower accrued hereunder and under any other Loan Document, shall become
forthwith due and payable, without presentment, demand, protest or any other notice of any kind,
all of which are hereby expressly waived by the Borrower, anything contained herein or in any other
Loan Document to the contrary notwithstanding; and in any event with respect to the Borrower
described in paragraph (g) or (h) above, the Commitments shall automatically terminate and the
principal of the Loans then outstanding, together with accrued interest thereon and any unpaid
accrued Fees and all other liabilities of the Borrower accrued hereunder and under any other Loan
Document, shall automatically become due and payable, without presentment, demand, protest or any
other notice of any kind, all of which are hereby expressly waived by the Borrower, anything
contained herein or in any other Loan Document to the contrary notwithstanding.



ARTICLE 8

The Administrative Agent and the Collateral Agent; Etc.




     Each Lender hereby irrevocably appoints the Administrative Agent and the Collateral Agent (for
purposes of this Article 8, the Administrative Agent and the Collateral Agent are referred to
collectively as the “Agents”) its agent and authorizes the Agents to take such actions on
its behalf and to exercise such



87









 







powers as are delegated to such Agent by the terms of the Loan Documents, together with such
actions and powers as are reasonably incidental thereto. Without limiting the generality of the
foregoing, the Agents are hereby expressly authorized to (i) execute any and all documents
(including releases) with respect to the Collateral and the rights of the Secured Parties with
respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the
Security Documents and (ii) negotiate, enforce or settle any claim, action or proceeding affecting
the Lenders in their capacity as such, at the direction of the Required Lenders, which negotiation,
enforcement or settlement will be binding upon each Lender.



     The institution serving as the Administrative Agent and/or the Collateral Agent hereunder
shall have the same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not an Agent, and such bank and its Affiliates may accept
deposits from, lend money to and generally engage in any kind of business with the Borrower or any
Subsidiary or other Affiliate thereof as if it were not an Agent hereunder.



     Neither Agent shall have any duties or obligations except those expressly set forth in the
Loan Documents. Without limiting the generality of the foregoing, (a) neither Agent shall be
subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and
is continuing, (b) neither Agent shall have any duty to take any discretionary action or exercise
any discretionary powers, except discretionary rights and powers expressly contemplated hereby that
such Agent is instructed in writing to exercise by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as provided in Section
9.08), and (c) except as expressly set forth in the Loan Documents, neither Agent shall have any
duty to disclose, nor shall it be liable for the failure to disclose, any information relating to
the Borrower or any of the Subsidiaries that is communicated to or obtained by the bank serving as
Administrative Agent and/or Collateral Agent or any of its Affiliates in any capacity. Neither
Agent shall be liable for any action taken or not taken by it with the consent or at the request of
the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under
the circumstances as provided in Section 9.08) or in the absence of its own gross negligence or
willful misconduct. Neither Agent shall be deemed to have knowledge of any Default unless and
until written notice thereof is given to such Agent by the Borrower or a Lender, and neither Agent
shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty
or representation made in or in connection with any Loan Document, (ii) the contents of any
certificate, report or other document delivered thereunder or in connection therewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or conditions set
forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any
Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article 4 or



88









 







elsewhere in any Loan Document, other than to confirm receipt of items expressly required to
be delivered to such Agent.



     Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon,
any notice, request, certificate, consent, statement, instrument, document or other writing
believed by it to be genuine and to have been signed or sent by the proper person. Each Agent may
also rely upon any statement made to it orally or by telephone and believed by it to have been made
by the proper person, and shall not incur any liability for relying thereon. Each Agent may
consult with legal counsel (who may be counsel for the Borrower), independent accountants and other
experts selected by it, and shall not be liable for any action taken or not taken by it in
accordance with the advice of any such counsel, accountants or experts.



     Each Agent may perform any and all its duties and exercise its rights and powers by or through
any one or more sub-agents appointed by it. Each Agent and any such sub-agent may perform any and
all its duties and exercise its rights and powers by or through their respective Related Parties.
The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the
Related Parties of each Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the Term Facility as well as activities as Agent.



     Subject to the appointment and acceptance of a successor Agent as provided below, either Agent
may resign at any time by notifying the Lenders and the Borrower. Upon any such resignation, the
Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor
(subject to any restriction on appointing a successor Collateral Agent set forth in the Security
Documents). If no successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Agent gives notice of its resignation,
then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent which shall be a
bank with an office in New York, New York, or an Affiliate of any such bank. If no successor Agent
has been appointed pursuant to the immediately preceding sentence by the 30th day after
the date such notice of resignation was given by such Agent, such Agent’s resignation shall become
effective and the Required Lenders shall thereafter perform all the duties of such Agent hereunder
and/or under any other Loan Document until such time, if any, as the Required Lenders appoint a
successor Administrative Agent and/or Collateral Agent, as the case may be (subject to any
restriction on appointing a successor Collateral Agent set forth in the Security Documents). Upon
the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed
to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and
the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable
by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless
otherwise agreed between the Borrower and such successor. After an Agent’s resignation hereunder,
the provisions of this Article



89









 







and Section 9.05 shall continue in effect for the benefit of such retiring Agent, its
sub-agents and their respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while acting as Agent.



     Each Lender acknowledges that it has, independently and without reliance upon the Agents or
any other Lender and based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that
it will, independently and without reliance upon the Agents or any other Lender and based on such
documents and information as it shall from time to time deem appropriate, continue to make its own
decisions in taking or not taking action under or based upon this Agreement or any other Loan
Document, any related agreement or any document furnished hereunder or thereunder.



     Notwithstanding any other provision of this Agreement or any provision of any other Loan
Document, each of the Joint Arrangers, the Co-Syndication Agents, the Co-Documentation Agents and
the Senior Managing Agents are named as such for recognition purposes only, and in their respective
capacities as such shall have no duties, responsibilities or liabilities with respect to this
Agreement or any other Loan Document; it being understood and agreed that each of the Joint
Arrangers, the Co-Syndication Agents, the Co-Documentation Agents and the Senior Managing Agents
shall be entitled to all indemnification and reimbursement rights in favor of the Agents provided
herein and in the other Loan Documents. Without limitation of the foregoing, neither the Joint
Arrangers, the Co-Syndication Agents, the Co- Documentation Agents nor the Senior Managing Agents
in their respective capacities as such shall, by reason of this Agreement or any other Loan
Document, have any fiduciary relationship in respect of any Lender, Loan Party or any other person.



     In furtherance of the foregoing, each Lender hereby irrevocably authorizes the Agents, at
their option and in their discretion, to:



     (a) release any Lien on any property granted or held by the Agents under the Loan Documents
(i) upon termination or expiration of the Commitments and payment in full of all Obligations (other
than contingent indemnification and expense reimbursement obligations as to which no claim has been
asserted), (ii) that is sold or to be sold as part of or in connection with any sale permitted
hereunder or under any other Loan Document or (iii) if approved, authorized or ratified in writing
in accordance with Section 9.08; and



     (b) release any Guarantor from its obligations under its guaranty if such person ceases to be
a Subsidiary as a result of a transaction permitted hereunder.



     Upon request by either Agent, the Required Lenders will confirm in writing such Agent’s
authority to release its interests in particular types of collateral or to release any Guarantor
from its obligations to guarantee pursuant to this Article 8 (it being understood that any Agent’s
failure to make such a request



90









 







shall not affect the authority expressly granted to the Agent by the terms hereof or any other
Loan Document).



     Each Lender (and each person that becomes a Lender hereunder pursuant to Section 9.04) hereby
(i) acknowledges that Credit Suisse (and any successor to Credit Suisse in such capacities) is
acting under the Security Documents in multiple capacities as the Administrative Agent, the
Collateral Agent and the administrative agent and the collateral agent pursuant to the Revolving
Loan Documents and (ii) waives any conflict of interest, now contemplated or arising hereafter, in
connection therewith and agrees not to assert against Credit Suisse (and such successor) any
claims, causes of action, damages or liabilities of whatever kind or nature relating thereto. Each
Lender (and each person that becomes a Lender hereunder pursuant to Section 9.04) hereby authorizes
and directs Credit Suisse (and such successor) to enter into the Security Documents on behalf of
such Lender and agrees that Credit Suisse (and such successor), in its various capacities
thereunder, may take such actions on its behalf as is contemplated by the terms of the Security
Documents.



ARTICLE 9

Miscellaneous




     Section 9.01. Notices; Electronic Communications. Notices and other communications provided
for herein and in the other Loan Documents shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by fax, as follows:



     (a) if to the Borrower, to it at 501 Fifth Street, Bristol, TN 37620, Attention of Randy
Sharrow (Fax No.                       ), with a copy to James Elrod at the above address (Fax
No.                       );



     (b) if to the Administrative Agent, to Credit Suisse, Agency Manager, One Madison Avenue, New
York, NY 10010 (Fax No.                       , e-mail:
                      ; and



     (c) if to a Lender, to it at its address (or fax number) set forth on Schedule 2.01 or in the
Assignment and Acceptance pursuant to which such Lender shall have become a party hereto.



     All notices and other communications given to any party hereto in accordance with the
provisions of this Agreement shall be deemed to have been given on the date of receipt if delivered
by hand or overnight courier service or sent by fax or on the date five Business Days after
dispatch by certified or registered mail if mailed, in each case delivered, sent or mailed
(properly addressed) to such party as provided in this Section 9.01 or in accordance with the
latest unrevoked direction from such party given in accordance with this Section 9.01. As agreed
to among the Borrower, the Administrative Agent and the



91









 







applicable Lenders from time to time, notices and other communications may also be delivered
by e-mail to the e-mail address of a representative of the applicable person provided from time to
time by such person.



     The Borrower hereby agrees, unless directed otherwise by the Administrative Agent or unless
the electronic mail address referred to below has not been provided by the Administrative Agent to
the Borrower, that it will, or will cause its Subsidiaries to, provide to the Administrative Agent
all information, documents and other materials that it is obligated to furnish to the
Administrative Agent pursuant to the Loan Documents or to the Lenders under Article 5, including
all notices, requests, financial statements, financial and other reports, certificates and other
information materials, but excluding any such communication that (i) is or relates to a Borrowing
Request or a notice pursuant to Section 2.10, (ii) relates to the payment of any principal or other
amount due under this Agreement prior to the scheduled date therefor, (iii) provides notice of any
Default or Event of Default under this Agreement or any other Loan Document or (iv) is required to
be delivered to satisfy any condition precedent to the effectiveness of this Agreement and/or any
Borrowing or other extension of credit hereunder (all such non-excluded communications being
referred to herein collectively as “Communications”), by transmitting the Communications in
an electronic/soft medium that is properly identified in a format acceptable to the Administrative
Agent to an electronic mail address as directed by the Administrative Agent. In addition, the
Borrower agrees, and agrees to cause its Subsidiaries, to continue to provide the Communications to
the Administrative Agent or the Lenders, as the case may be, in the manner specified in the Loan
Documents but only to the extent requested by the Administrative Agent.



     The Borrower hereby acknowledges that (a) the Administrative Agent will make available to the
Lenders materials and/or information provided by or on behalf of the Borrower hereunder
(collectively, the “Borrower Materials”) by posting the Borrower Materials on Intralinks or
another similar electronic system (the “Platform”) and (b) certain of the Lenders may be
“public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information
with respect to the Borrower or its securities) (each, a “Public Lender”). The Borrower
hereby agrees that (w) 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,” the
Borrower shall be deemed to have authorized the Administrative Agent and the Lenders to treat such
Borrower Materials as not containing any material non-public information with respect to the
Borrower or its securities for purposes of United States federal and state securities laws
(provided, however, that to the extent such Borrower Materials constitute Confidential Information,
they shall be treated as set forth in Section 9.16); (y) all Borrower Materials marked “PUBLIC” are
permitted to be made available through a portion of the Platform designated as “Public Investor;”
and (z) the Administrative Agent shall be entitled to treat any



92









 







Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a
portion of the Platform not marked as “Public Investor.” Notwithstanding the foregoing, the
following Borrower Materials shall be marked “PUBLIC”, unless the Borrower notifies the
Administrative Agent promptly that any such document contains material non-public information: (1)
the Loan Documents and (2) notification of changes in the terms of the Loan Documents.



     Each Public Lender agrees to cause at least one individual at or on behalf of such Public
Lender to at all times have selected the “Private Side Information” or similar designation on the
content declaration screen of the Platform in order to enable such Public Lender or its delegate,
in accordance with such Public Lender’s compliance procedures and applicable law, including United
States Federal and state securities laws, to make reference to Communications that are not made
available through the “Public Side Information” portion of the Platform and that may contain
material non-public information with respect to the Borrower or its securities for purposes of
United States Federal or state securities laws.



     THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE”. NEITHER THE ADMINISTRATIVE AGENT NOR ANY
OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS OR THE ADEQUACY
OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN THE
COMMUNICATIONS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR
FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS
RELATED PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE
ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY LOAN PARTY, ANY LENDER
OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING
DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN
TORT, CONTRACT OR OTHERWISE) ARISING OUT OF ANY LOAN PARTY’S OR THE ADMINISTRATIVE AGENT’S
TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH
PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED PRIMARILY
FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.



     The Administrative Agent agrees that the receipt of the Communications by the Administrative
Agent at its e-mail address set forth above shall constitute effective delivery of the
Communications to the Administrative Agent for purposes of the Loan Documents. Each Lender agrees
that receipt of notice to it



93









 




(as provided in the next sentence) specifying that the Communications have been posted to the
Platform shall constitute effective delivery of the Communications to such Lender for purposes of
the Loan Documents. Each Lender agrees to notify the Administrative Agent in writing (including by
electronic communication) from time to time of such Lender’s e-mail address to which the foregoing
notice may be sent by electronic transmission and that the foregoing notice may be sent to such
e-mail address.




     Nothing herein shall prejudice the right of the Administrative Agent or any Lender to give any
notice or other communication pursuant to any Loan Document in any other manner specified in such
Loan Document.



     Section 9.02. Survival of Agreement. All covenants, agreements, representations and
warranties made by the Borrower herein and in the certificates or other instruments prepared or
delivered in connection with or pursuant to this Agreement or any other Loan Document shall be
considered to have been relied upon by the Lenders and shall survive the making by the Lenders of
the Loans, regardless of any investigation made by the Lenders or on their behalf, and shall
continue in full force and effect as long as the principal of or any accrued interest on any Loan
or any Fee or any other amount payable under this Agreement or any other Loan Document is
outstanding and unpaid and so long as the Commitments have not been terminated. The provisions of
Sections 2.14, 2.16, 2.20 and 9.05 shall remain operative and in full force and effect regardless
of the expiration of the term of this Agreement, the consummation of the Transactions and the other
transactions contemplated hereby, the repayment of any of the Loans, the expiration of the
Commitments, the invalidity or unenforceability of any term or provision of this Agreement or any
other Loan Document, or any investigation made by or on behalf of the Administrative Agent, the
Collateral Agent or any Lender.



     Section 9.03. Binding Effect. This Agreement shall become effective and legally binding on
the parties hereto when it shall have been executed by the Borrower and the Administrative Agent
and when the Administrative Agent shall have received counterparts hereof which, when taken
together, bear the signatures of each of the other parties hereto, and thereafter shall be binding
upon and inure to the benefit of the parties hereto and their respective permitted successors and
assigns.



     Section 9.04. Successors and Assigns. (a) Whenever in this Agreement any of the parties
hereto is referred to, such reference shall be deemed to include the permitted successors and
assigns of such party; and all covenants, promises and agreements by or on behalf of the Borrower,
the Administrative Agent, the Collateral Agent or the Lenders that are contained in this Agreement
shall bind and inure to the benefit of their respective successors and assigns.



     (b) Each Lender may assign to one or more Eligible Assignees all or a portion of its
interests, rights and obligations under this Agreement (including all



94









 







or a portion of its Commitment and the Loans at the time owing to it) with the prior written
consent of the Administrative Agent (not to be unreasonably withheld or delayed); provided,
however, that (i) the Administrative Agent shall use its commercially reasonable efforts to provide
notice of any such assignment to the Borrower (failure to provide or delay in providing such notice
shall not invalidate such assignment); (ii) the amount of the Commitment or Loans of the assigning
Lender subject to each such assignment (determined as of the date the Assignment and Acceptance
with respect to such assignment is delivered to the Administrative Agent) shall be in an integral
multiple of, and not less than, $1,000,000 (or, if less, the entire remaining amount of such
Lender’s Commitment or Loans); provided that simultaneous assignments by two or more Related Funds
shall be combined for purposes of determining whether the minimum assignment requirement is met;
(iii) the parties to each assignment shall (A) execute and deliver to the Administrative Agent an
Assignment and Acceptance via an electronic settlement system acceptable to the Administrative
Agent or (B) if previously agreed with the Administrative Agent, manually execute and deliver to
the Administrative Agent an Assignment and Acceptance, and, in each case, shall pay to the
Administrative Agent a processing and recordation fee of $3,500 (which fee may be waived or reduced
in the sole discretion of the Administrative Agent); (iv) the assignee, if it shall not be a
Lender, shall deliver to the Administrative Agent an Administrative Questionnaire (in which the
assignee shall designate one or more credit contacts to whom all syndicate-level information (which
may contain material non-public information about the Loan Parties and their Related Parties or
their respective securities) will be made available and who may receive such information in
accordance with the assignee’s compliance procedures and applicable laws, including Federal and
state securities laws) and all applicable tax forms; and (v) no assignment shall be made to the
Borrower or any of the Borrower’s Affiliates. Upon acceptance and recording pursuant to paragraph
(e) of this Section 9.04, from and after the effective date specified in each Assignment and
Acceptance, (A) the assignee thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this
Agreement and (B) the assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall
continue to be entitled to the benefits of Sections 2.14, 2.16, 2.20 and 9.05, as well as to any
Fees accrued for its account and not yet paid).



     (c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder
and the assignee thereunder shall be deemed to confirm to and agree with each other and the other
parties hereto as follows: (i) such assigning Lender warrants that it is the legal and beneficial
owner of the interest being assigned thereby free and clear of any adverse claim and that its
Commitment, and the outstanding balances of its Loans, in each case without



95









 







giving effect to assignments thereof which have not become effective, are as set forth in such
Assignment and Acceptance, (ii) except as set forth in (i) above, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any statements, warranties
or representations made in or in connection with this Agreement, or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement, any other Loan
Document or any other instrument or document furnished pursuant hereto, or the financial condition
of the Borrower or any Subsidiary or the performance or observance by the Borrower or any
Subsidiary of any of its obligations under this Agreement, any other Loan Document or any other
instrument or document furnished pursuant hereto; (iii) such assignee represents and warrants that
it is an Eligible Assignee; (iv) such assignee confirms that it has received a copy of this
Agreement, together with copies of the most recent financial statements referred to in Section
3.05(a) or delivered pursuant to Section 5.04 and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into such Assignment and
Acceptance; (v) such assignee will independently and without reliance upon the Administrative
Agent, the Collateral Agent, such assigning Lender or any other Lender and based on such documents
and information as it shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under this Agreement; (vi) such assignee appoints and authorizes the
Administrative Agent and the Collateral Agent to take such action as agent on its behalf and to
exercise such powers under this Agreement as are delegated to the Administrative Agent and the
Collateral Agent, respectively, by the terms hereof, together with such powers as are reasonably
incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their
terms all the obligations which by the terms of this Agreement are required to be performed by it
as a Lender.



     (d) The Administrative Agent, acting for this purpose as an agent of the Borrower, shall
maintain at one of its offices in The City of New York a copy of each Assignment and Acceptance
delivered to it and a register for the recordation of the names and addresses of the Lenders, and
the Commitment of, and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the “Register”). The entries in the Register shall be conclusive
and the Borrower, the Administrative Agent, the Collateral Agent and the Lenders may treat each
person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder
for all purposes of this Agreement, notwithstanding notice to the contrary. The Register and any
Assignments and Acceptances delivered to the Administrative Agent pursuant to this Section 9.04(d)
shall be available for inspection by the Borrower, the Collateral Agent and any Lender, at any
reasonable time and from time to time upon reasonable prior notice.



     (e) Upon its receipt of, and consent to, a duly completed Assignment and Acceptance executed
by an assigning Lender and an assignee, an Administrative Questionnaire completed in respect of the
assignee (unless the assignee shall already be a Lender hereunder), the processing and recordation
fee



96









 







referred to in paragraph (b) above, if applicable, and the written consent of the
Administrative Agent to such assignment and any applicable tax forms, the Administrative Agent
shall (i) accept such Assignment and Acceptance and (ii) record the information contained therein
in the Register. No assignment shall be effective unless it has been recorded in the Register as
provided in this paragraph (e).



     (f) Each Lender may without the consent of the Borrower or the Administrative Agent sell
participations to one or more banks or other persons in all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Commitment and the Loans owing
to it); provided, however, that (i) such Lender’s obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) the participating banks or other persons shall be entitled
to the benefit of the cost protection provisions contained in Sections 2.14, 2.16 and 2.20 to the
same extent as if they were Lenders (but, with respect to any particular participant, to no greater
extent than the Lender that sold the participation to such participant) and (iv) the Borrower, the
Administrative Agent and the Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender’s rights and obligations under this Agreement, and such Lender shall
retain the sole right to enforce the obligations of the Borrower relating to the Loans and to
approve any amendment, modification or waiver of any provision of this Agreement (other than
amendments, modifications or waivers decreasing any fees payable to such participating bank or
person hereunder or the amount of principal of or the rate at which interest is payable on the
Loans in which such participating bank or person has an interest, extending any scheduled principal
payment date or date fixed for the payment of interest on the Loans in which such participating
bank or person has an interest, increasing or extending the Commitments in which such participating
bank or person has an interest or releasing any Guarantor (other than in connection with the sale
of such Guarantor in a transaction permitted by Section 6.05) or all or substantially all of the
Collateral). To the extent permitted by law, each participating bank or other person also shall be
entitled to the benefits of Section 9.06 as though it were a Lender, provided such participating
bank or other person agrees to be subject to Section 2.18 as though it were a Lender.



     (g) Any Lender or participant may, in connection with any assignment or participation or
proposed assignment or participation pursuant to this Section 9.04, disclose to the assignee or
participant or proposed assignee or participant any information relating to the Borrower furnished
to such Lender by or on behalf of the Borrower; provided that, prior to any such disclosure of
Confidential Information, each such assignee or participant or proposed assignee or participant
shall execute an agreement whereby such assignee or participant shall agree (subject to customary
exceptions) to preserve the confidentiality of such Confidential Information on terms no less
restrictive than those applicable to the Lenders pursuant to Section 9.16.



97









 





     (h) Any Lender may at any time assign all or any portion of its rights under this Agreement to
secure extensions of credit to such Lender or in support of obligations owed by such Lender;
provided that no such assignment shall release a Lender from any of its obligations hereunder or
substitute any such assignee for such Lender as a party hereto.



     (i) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting
Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such
in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower,
the option to provide to the Borrower all or any part of any Loan that such Granting Lender would
otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i)
nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects
not to exercise such option or otherwise fails to provide all or any part of such Loan, the
Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a
Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent,
and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no
SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all
liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each
party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that,
prior to the date that is one year and one day after the payment in full of all outstanding
commercial paper or other senior indebtedness of any SPC, it will not institute against, or join
any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings under the laws of the United States or any state thereof. In
addition, notwithstanding anything to the contrary contained in this Section 9.04, any SPC may (A)
with notice to, but without the prior written consent of, the Borrower and the Administrative Agent
and without paying any processing fee therefor, assign all or a portion of its interests in any
Loans to the Granting Lender or to any financial institutions (consented to by the Borrower and the
Administrative Agent) providing liquidity and/or credit support to or for the account of such SPC
to support the funding or maintenance of Loans and (B) disclose on a confidential basis any
non-public information relating to its Loans to any rating agency, commercial paper dealer or
provider of any surety, guarantee or credit or liquidity enhancement to such SPC.



     (j) The Borrower shall not assign or delegate any of its rights or duties hereunder without
the prior written consent of the Administrative Agent and each Lender, and any attempted assignment
without such consent shall be null and void.



     Section 9.05. Expenses; Indemnity. (a) The Borrower agrees to pay all reasonable
out-of-pocket expenses incurred by the Joint Arrangers, the Administrative Agent and the Collateral
Agent in connection with the syndication of the Term Facility and the preparation and
administration of this Agreement and the other Loan Documents or in connection with any amendments,
modifications or waivers of the provisions hereof or thereof (whether or not the transactions



98









 







hereby or thereby contemplated shall be consummated) or incurred by the Joint Arrangers, the
Administrative Agent, the Collateral Agent or any Lender in connection with the enforcement or
protection of its rights in connection with this Agreement and the other Loan Documents or in
connection with the Loans made hereunder, including the reasonable fees, charges and disbursements
of Davis Polk & Wardwell, counsel for the Joint Arrangers, the Administrative Agent and the
Collateral Agent, and, in connection with any such enforcement or protection, the fees, charges and
disbursements of any other counsel for the Joint Arrangers, the Administrative Agent, the
Collateral Agent or any Lender.



     (b) The Borrower agrees to indemnify the Joint Arrangers, the Administrative Agent, the
Collateral Agent, each Lender and each Related Party of any of the foregoing persons (each such
person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from,
any and all losses, claims, damages, penalties, liabilities and related expenses, including
reasonable counsel fees, charges and disbursements, incurred by or asserted against any Indemnitee
arising out of, in any way connected with, or as a result of (i) the execution or delivery of this
Agreement or any other Loan Document or any agreement or instrument contemplated thereby, the
performance by the parties thereto of their respective obligations thereunder or the consummation
of the Transactions and the other transactions contemplated thereby (including the syndication of
the Term Facility), (ii) the use of the proceeds of the Loans, (iii) any claim, litigation,
investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a
party thereto (and regardless of whether such matter is initiated by a third party or by the
Borrower, any other Loan Party or any of their respective shareholders or Affiliates), or (iv) any
actual or alleged presence, Release or threatened Release of Hazardous Materials on any property or
facility presently or formerly owned, leased or operated by the Borrower or any of the
Subsidiaries, or any Environmental Claim related in any way to the Borrower or the Subsidiaries;
provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted primarily from the gross
negligence or willful misconduct of such Indemnitee.



     (c) To the extent that the Borrower fails to pay any amount required to be paid by it to the
Administrative Agent or the Collateral Agent under paragraph (a) or (b) of this Section, each
Lender severally agrees to pay to the Administrative Agent or the Collateral Agent, as the case may
be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed
expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed
expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was
incurred by or asserted against the Administrative Agent or the Collateral Agent in its capacity as
such. For purposes hereof, a Lender’s “pro rata share” shall be determined based upon its



99









 







share of the sum of the outstanding Loans and Commitments at the time, (in each case,
determined as if no Lender were a Defaulting Lender).



     (d) To the extent permitted by applicable law, the Borrower shall not assert, and hereby
waives, any claim against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement or any agreement or instrument contemplated
hereby, the Transactions, any Loan or the use of the proceeds thereof.



     (e) The provisions of this Section 9.05 shall remain operative and in full force and effect
regardless of the expiration of the term of this Agreement, the consummation of the transactions
contemplated hereby, the repayment of any of the Loans, the expiration of the Commitments, the
invalidity or unenforceability of any term or provision of this Agreement or any other Loan
Document, or any investigation made by or on behalf of the Administrative Agent, the Collateral
Agent or any Lender. All amounts due under this Section 9.05 shall be payable on written demand
therefor.



     Section 9.06. Right of Setoff. If an Event of Default shall have occurred and be continuing,
each Lender is hereby authorized at any time and from time to time, except to the extent prohibited
by law, to set off and apply any and all deposits (general or special, time or demand, provisional
or final, but excluding payroll and related trust fund accounts) at any time held and other
indebtedness at any time owing by such Lender (or its Affiliates) to or for the credit or the
account of the Borrower against any of and all the obligations of the Borrower now or hereafter
existing under this Agreement and other Loan Documents held by such Lender, irrespective of whether
or not such Lender shall have made any demand under this Agreement or such other Loan Document and
although such obligations may be unmatured. Each Lender agrees promptly to notify the Borrower and
the Administrative Agent after any such set-off and application made by such Lender; provided that
the failure to give such notice shall not affect the validity of such set-off and application. The
rights of each Lender under this Section 9.06 are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.



     Section 9.07. Applicable Law. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN AS
EXPRESSLY SET FORTH IN THE OTHER LOAN DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE LAWS OF THE STATE OF NEW YORK.



     Section 9.08. Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the
Collateral Agent or any Lender in exercising any power or right hereunder or under any other Loan
Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such
right or power, or any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other right or



100









 







power. The rights and remedies of the Administrative Agent, the Collateral Agent and the
Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any
rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or
any other Loan Document or consent to any departure by the Borrower or any other Loan Party
therefrom shall in any event be effective unless the same shall be permitted by paragraph (b)
below, and then such waiver or consent shall be effective only in the specific instance and for the
purpose for which given. No notice or demand on the Borrower in any case shall entitle the
Borrower to any other or further notice or demand in similar or other circumstances.



     (b) Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may
be waived, amended or modified other than pursuant to an agreement or agreements in writing entered
into by the Borrower and the Required Lenders or, in the case of any other Loan Document, by the
Loan Parties party thereto and the Administrative Agent or the Collateral Agent, as the case may
be, with the consent of the Required Lenders. No agreement referred to in the preceding sentence
shall (i) decrease the principal amount of, or extend the maturity of or any scheduled principal
payment date or date for the payment of any interest on any Loan, or waive or excuse any such
payment or any part thereof, or decrease the rate of interest on any Loan, without the prior
written consent of each Lender directly adversely affected thereby, (ii) increase or extend any
Commitment or decrease or extend the date for payment of any Fees of any Lender without the prior
written consent of such Lender, (iii) amend or modify the pro rata requirements of Section 2.17,
the provisions of Section 9.04(j) or the provisions of this Section or release any Guarantor (other
than in connection with the sale of such Guarantor in a transaction permitted by Section 6.05) or
all or substantially all of the Collateral, without the prior written consent of each Lender, (iv)
modify the protections afforded to an SPC pursuant to the provisions of Section 9.04(i) without the
written consent of such SPC, (v) reduce the percentage contained in the definition of the term
“Required Lenders” without the prior written consent of each Lender (it being understood
that with the consent of the Required Lenders, additional extensions of credit pursuant to this
Agreement may be included in the determination of the Required Lenders on substantially the same
basis as the Commitments on the Closing Date), or (vi) amend the definition of “Eligible Assignee”
to include the Borrower or any Affiliates of the Borrower without the prior written consent of
Lenders having Loans and Commitments representing more than 66 2/3% of the sum of all Loans and
Commitments outstanding at such time; provided that it is understood and agreed that any such
amendment may impose terms and conditions on any assignment to the Borrower or any Affiliate that
are acceptable to the Administrative Agent, the Borrower and the Required Lenders; provided further
that no such agreement shall amend, modify or otherwise affect the rights or duties of the
Administrative Agent or the Collateral Agent hereunder or under any other Loan Document without the
prior written consent of the Administrative Agent or the Collateral Agent.



101









 





     (c) Notwithstanding anything to the contrary contained in this Section 9.08, if the
Administrative Agent and the Borrower shall have jointly identified an obvious error or any error
or omission of a technical or immaterial nature, in each case, in any provision of the Loan
Documents, then the Administrative Agent and the Borrower shall be permitted to amend such
provisions and the resulting amendment shall become effective without any further action of consent
of any other party to any Loan Document if the same is not objected to in writing by the Required
Lenders within five Business Days following receipt of notice thereof.



     Section 9.09. Interest Rate Limitation. Notwithstanding anything herein to the contrary, if
at any time the interest rate applicable to any Loan, together with all fees, charges and other
amounts which are treated as interest on such Loan under applicable law (collectively the
“Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be
contracted for, charged, taken, received or reserved by the Lender holding such Loan in accordance
with applicable law, the rate of interest payable in respect of such Loan hereunder, together with
all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent
lawful, the interest and Charges that would have been payable in respect of such Loan but were not
payable as a result of the operation of this Section 9.09 shall be cumulated and the interest and
Charges payable to such Lender in respect of other Loans or periods shall be increased (but not
above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the
Federal Funds Effective Rate to the date of repayment, shall have been received by such Lender.



     Section 9.10. Entire Agreement. This Agreement, the Fee Letter and the other Loan Documents
constitute the entire contract between the parties relative to the subject matter hereof. Any
other previous agreement among the parties with respect to the subject matter hereof is superseded
by this Agreement and the other Loan Documents. Nothing in this Agreement or in the other Loan
Documents, expressed or implied, is intended to confer upon any person (other than the parties
hereto and thereto, their respective successors and assigns permitted hereunder and, to the extent
expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the
Collateral Agent and the Lenders) any rights, remedies, obligations or liabilities under or by
reason of this Agreement or the other Loan Documents.



     Section 9.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE
OTHER LOAN DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF
ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)



102









 







ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION 9.11.



     Section 9.12. Severability. In the event any one or more of the provisions contained in this
Agreement or in any other Loan Document should be held invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions contained herein and
therein shall not in any way be affected or impaired thereby (it being understood that the
invalidity of a particular provision in a particular jurisdiction shall not in and of itself affect
the validity of such provision in any other jurisdiction). The parties shall endeavor in
good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid
provisions the economic effect of which comes as close as possible to that of the invalid, illegal
or unenforceable provisions.



     Section 9.13. Counterparts. This Agreement may be executed in counterparts (and by different
parties hereto on different counterparts), each of which shall constitute an original but all of
which when taken together shall constitute a single contract, and shall become effective as
provided in Section 9.03. Delivery of an executed signature page to this Agreement by fax
transmission shall be as effective as delivery of a manually signed counterpart of this Agreement.



     Section 9.14. Headings. Article and Section headings and the Table of Contents used herein
are for convenience of reference only, are not part of this Agreement and are not to affect the
construction of, or to be taken into consideration in interpreting, this Agreement.



     Section 9.15. Jurisdiction; Consent to Service of Process. (a) The Borrower hereby
irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction
of any New York State court or Federal court of the United States of America sitting in New York
City, and any appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Loan Documents, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined in such New York
State or, to the extent permitted by law, in such Federal court. Each of the parties hereto agrees
that a final judgment in any such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in
this Agreement shall affect any right that the Administrative Agent, the Collateral Agent or any
Lender may otherwise have to bring any action or proceeding relating to this Agreement or the other
Loan Documents against the Borrower or its properties in the courts of any jurisdiction.



103









 





     (b) The Borrower hereby irrevocably and unconditionally waives, to the fullest extent it may
legally and effectively do so, any objection which it may now or hereafter have to the laying of
venue of any suit, action or proceeding arising out of or relating to this Agreement or the other
Loan Documents in any New York State or Federal court. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to
the maintenance of such action or proceeding in any such court.



     (c) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 9.01. Nothing in this Agreement will affect the right of any party
to this Agreement to serve process in any other manner permitted by law.



     Section 9.16. Confidentiality. Each of the Administrative Agent, the Collateral Agent and
the Lenders agrees to maintain the confidentiality of the Confidential Information (as defined
below), except that Confidential Information may be disclosed (a) to its and its Affiliates’
officers, directors, employees and agents, including accountants, legal counsel and other advisors
(it being understood that the persons to whom such disclosure is made will be informed of the
confidential nature of such Confidential Information and instructed to keep such Confidential
Information confidential), (b) to the extent requested by any regulatory authority or
quasi-regulatory authority (such as the National Association of Insurance Commissioners), (c) to
the extent required by applicable laws or regulations or by any subpoena or similar legal process,
(d) in connection with the exercise of any remedies hereunder or under the other Loan Documents or
any suit, action or proceeding relating to the enforcement of its rights hereunder or thereunder,
(e) subject to an agreement containing provisions substantially the same as those of this Section
9.16, to (i) any actual or prospective assignee of or participant in any of its rights or
obligations under this Agreement and the other Loan Documents or (ii) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating to the Borrower or
any Subsidiary or any of their respective obligations, (f) with the consent of the Borrower or (g)
to the extent such Confidential Information becomes publicly available other than as a result of a
breach of this Section 9.16. For the purposes of this Section, “Confidential Information”
shall mean all information received from the Borrower and related to the Borrower or its business,
other than any such information that was available to the Administrative Agent, the Collateral
Agent or any Lender on a nonconfidential basis prior to its disclosure by the Borrower; provided
that, in the case of Confidential Information received from the Borrower after the Closing Date,
such information is clearly identified at the time of delivery as confidential. Any person
required to maintain the confidentiality of Confidential Information as provided in this Section
9.16 shall be considered to have complied with its obligation to do so if such person has exercised
the same degree of care to maintain the confidentiality of such Confidential Information as such
person would accord its own confidential information.



104









 





     Section 9.17. Lender Action. Each Lender agrees that it shall not take or institute any
actions or proceedings, judicial or otherwise, for any right or remedy against any Loan Party or
any other obligor under any of the Loan Documents (including the exercise of any right of setoff,
rights on account of any banker’s lien or similar claim or other rights of self-help), or institute
any actions or proceedings, or otherwise commence any remedial procedures, with respect to any
Collateral or any other property of any such Loan Party, unless expressly provided for herein or in
any other Loan Document, without the prior written consent of the Administrative Agent. The
provisions of this Section 9.17 are for the sole benefit of the Lenders and shall not afford any
right to, or constitute a defense available to, any Loan Party.



     Section 9.18. Patriot Act. Each Lender and the Administrative Agent (for itself and not on
behalf of any Lender) hereby notifies the Borrower, for itself and the Subsidiaries, 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”), it is required to obtain, verify and record information
that identifies the Borrower and the Subsidiaries, which information includes the name and address
of the Borrower and the Subsidiaries and other information that will allow such Lender or the
Administrative Agent, as applicable, to identify the Borrower and the Subsidiaries in accordance
with the Patriot Act.



     Section 9.19. No Fiduciary Duty. The Borrower, on behalf of itself and the Subsidiaries,
agrees that in connection with all aspects of the transactions contemplated hereby or by any other
Loan Document and any communications in connection therewith, the Borrower, the Subsidiaries and
their Affiliates, on the one hand, and the Administrative Agent, the Lenders and their Affiliates,
on the other hand, will have a business relationship that does not create, by implication or
otherwise, any fiduciary duty on the part of the Administrative Agent, the Lenders or their
Affiliates, and no such duty will be deemed to have arisen in connection with any such transactions
or communications.



105









 





     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their
respective authorized officers as of the day and year first above written.



	 	 	 	 	 
	 	KING PHARMACEUTICALS, INC.,

 	 
	 	By:  	/s/ Brian A. Markison 	 
	 	 	Name:  	Brian A. Markison	 
	 	 	Title:  	Chairman, President and

Chief Executive Officer 	 
	 




 









 





	 	 	 	 	 
	 	CREDIT SUISSE, CAYMAN ISLANDS BRANCH, 

     individually and as Administrative Agent
     
and Collateral Agent,

 	 
	 	By:  	/s/ John D. Toronto	 
	 	 	Name:  	John D. Toronto	 
	 	 	Title:  	Director	 
	 
	 	 	 
	 	By:  	/s/ Shaheen Malik	 
	 	 	Name:  	Shaheen Malik	 
	 	 	Title:  	Associate	 
	 




 









 





	 	 	 	 	 
	 	WACHOVIA BANK, NATIONAL ASSOCIATION,

 	 
	 	By:  	/s/ David Gillespie	 
	 	 	Name:  	David Gillespie	 
	 	 	Title:  	Managing Director	 
	 




 









 










	 	 	 	 	 
	 	BANK OF LINCOLNWOOD

 	 
	 	By:  	/s/ Richard R. Robbins	 
	 	 	Name:  	Richard R. Robbins	 
	 	 	Title:  	President & COO	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	DNB NOR Bank, ASA

 	 
	 	By:  	/s/
Phil Kurplewski	 
	 	 	Name:  	Phil Kurplewski	 
	 	 	Title:  	Senior Vice President	 
	 
	 	 	 
	 	By:  	/s/
Kristin Riise	 
	 	 	Name:  	Kristin Riise 	 
	 	 	Title:  	Vice President 	 
	 
















 






	 	 	 	 	 



	 	 	 	 	 
	 	DZ BANK, DEUTSCHE
GENOSSENSCHAFTSBANK


 	 
	 	By:  	/s/
Oliver Hildenbrand	 
	 	 	Name:  	Oliver Hildenbrand	 
	 	 	Title:  	SVP	 
	 
	 	 	 
	 	By:  	/s/
Cedric Probst	 
	 	 	Name:  	Cedric Probst	 
	 	 	Title:  	VP	 
	 
















 






	 	 	 	 	 



	 	 	 	 	 
	 	FIRST TENNESSEE BANK, NATIONAL
ASSOCIATION, as Lender

 	 
	 	By:  	/s/
Freddie H. Malone, VP	 
	 	 	Name:  	Freddie H. Malone	 
	 	 	Title:  	Vice President	 
	 
















 






	 	 	 	 	 



	 	 	 	 	 
	 	Siemens Financial Services, Inc.,
as Lender

 	 
	 	By:  	/s/
Todd W. Tucker	 
	 	 	Name:  	Todd W. Tucker	 
	 	 	Title:  	Vice President — Operations	 
	 
	 	 	 
	 	By:  	/s/
Doug Maher	 
	 	 	Name:  	Doug Maher	 
	 	 	Title:  	 	 
	 
















 






	 	 	 	 	 



	 	 	 	 	 
	 	The Private Bank and Trust
Company, as Lender

 	 
	 	By:  	/s/
Zennie W. Lynch Jr.	 
	 	 	Name:  	Zennie W. Lynch Jr.	 
	 	 	Title:  	Associate Managing Director	 
	 
















 






	 	 	 	 	 



	 	 	 	 	 
	 	Union Bank, N.A., as Lender

 	 
	 	By:  	/s/
Michael Tschida	 
	 	 	Name:  	Michael Tschida	 
	 	 	Title:  	Vice President	 
	 
















 






	 	 	 	 	 



	 	 	 	 	 
	 	Lender: U.S. Bank, N.A.

 	 
	 	By:  	/s/
Thomas A. Heckman	 
	 	 	Name:  	Thomas A. Heckman	 
	 	 	Title:  	Vice President