exv10w1






Exhibit 10.1




CREDIT AND GUARANTY AGREEMENT




dated as of May 26, 2010

among



VALEANT PHARMACEUTICALS INTERNATIONAL,



CERTAIN SUBSIDIARIES OF

VALEANT PHARMACEUTICALS INTERNATIONAL,

as Guarantors,



GOLDMAN SACHS CREDIT PARTNERS L.P.,

as Sole Lead Arranger



and



GOLDMAN SACHS BANK USA,

Administrative Agent and Collateral Agent



 






$30,000,000 Senior Secured Term Loan Facility




 







 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	SECTION 1. DEFINITIONS AND INTERPRETATION
	 	 	1	 
	 
	 	 	 	 
	1.1. Definitions
	 	 	1	 
	1.2. Accounting Terms
	 	 	22	 
	1.3. Interpretation, Etc.
	 	 	22	 
	 
	 	 	 	 
	SECTION 2. LOANS
	 	 	22	 
	 
	 	 	 	 
	2.1. Loans
	 	 	22	 
	2.2. [Reserved]
	 	 	23	 
	2.3. [Reserved]
	 	 	23	 
	2.4. [Reserved]
	 	 	23	 
	2.5. Pro Rata Shares
	 	 	23	 
	2.6. Use of Proceeds
	 	 	23	 
	2.7. Evidence of Debt; Register; Lender’s Books and Records; Notes
	 	 	23	 
	2.8. Interest on Loans
	 	 	24	 
	2.9. Conversion/Continuation
	 	 	25	 
	2.10. Default Interest
	 	 	25	 
	2.11. [Reserved]
	 	 	26	 
	2.12. Repayment of Loans
	 	 	26	 
	2.13. Voluntary Prepayments
	 	 	26	 
	2.14. Mandatory Prepayments/Commitment Reductions
	 	 	27	 
	2.15. Application of Prepayments
	 	 	27	 
	2.16. General Provisions Regarding Payments
	 	 	27	 
	2.17. Ratable Sharing
	 	 	29	 
	2.18. Making or Maintaining Eurodollar Rate Loans
	 	 	29	 
	2.19. Increased Costs; Capital Adequacy
	 	 	31	 
	2.20. Taxes; Withholding, Etc.
	 	 	32	 
	2.21. Obligation to Mitigate
	 	 	34	 
	 
	 	 	 	 
	SECTION 3. CONDITIONS PRECEDENT
	 	 	35	 
	 
	 	 	 	 
	3.1. Closing Date
	 	 	35	 
	 
	 	 	 	 
	SECTION 4. REPRESENTATIONS AND WARRANTIES
	 	 	38	 
	 
	 	 	 	 
	4.1. Organization; Requisite Power and Authority; Qualification
	 	 	38	 
	4.2. Equity Interests and Ownership
	 	 	38	 
	4.3. Due Authorization
	 	 	38	 
	4.4. No Conflict
	 	 	38	 
	4.5. Governmental Consents
	 	 	39	 
	4.6. Binding Obligation
	 	 	39	 
	4.7. Historical Financial Statements
	 	 	39	 
	4.8. [Reserved]
	 	 	39	 






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	 	 	Page	 
	4.9. No Material Adverse Change
	 	 	39	 
	4.10. No Restricted Junior Payments
	 	 	39	 
	4.11. Adverse Proceedings, Etc.
	 	 	39	 
	4.12. Payment of Taxes
	 	 	40	 
	4.13. Properties
	 	 	40	 
	4.14. Environmental Matters
	 	 	40	 
	4.15. No Defaults
	 	 	41	 
	4.16. [Reserved]
	 	 	41	 
	4.17. Governmental Regulation
	 	 	41	 
	4.18. Margin Stock
	 	 	41	 
	4.19. Employee Matters
	 	 	41	 
	4.20. Employee Benefit Plans
	 	 	41	 
	4.21. Solvency
	 	 	42	 
	4.22. Compliance with Statutes, Etc.
	 	 	42	 
	4.23. Disclosure
	 	 	42	 
	4.24. [Reserved]
	 	 	43	 
	4.25. PATRIOT Act
	 	 	43	 
	 
	 	 	 	 
	SECTION 5. AFFIRMATIVE COVENANTS
	 	 	43	 
	 
	 	 	 	 
	5.1. Financial Statements and Other Reports
	 	 	43	 
	5.2. Existence
	 	 	45	 
	5.3. Payment of Taxes and Claims
	 	 	46	 
	5.4. Maintenance of Properties
	 	 	46	 
	5.5. Insurance
	 	 	46	 
	5.6. Books and Records; Inspections
	 	 	46	 
	5.7. [Reserved
	 	 	47	 
	5.8. Compliance with Laws
	 	 	47	 
	5.9. Environmental
	 	 	47	 
	5.10. Subsidiaries
	 	 	48	 
	5.11. Post-Closing Matters
	 	 	48	 
	5.12. Further Assurances
	 	 	48	 
	 
	 	 	 	 
	SECTION 6. NEGATIVE COVENANTS
	 	 	49	 
	 
	 	 	 	 
	6.1. Indebtedness
	 	 	49	 
	6.2. Liens
	 	 	50	 
	6.3. No Further Negative Pledges
	 	 	52	 
	6.4. Restricted Junior Payments
	 	 	52	 
	6.5. Restrictions on Subsidiary Distributions
	 	 	52	 
	6.6. Investments
	 	 	52	 
	6.7. Financial Covenants
	 	 	53	 
	6.8. Fundamental Changes; Disposition of Assets; Acquisitions
	 	 	53	 
	6.9. Disposal of Subsidiary Interests
	 	 	54	 
	6.10. Sales and Lease-Backs
	 	 	54	 
	6.11. Transactions with Shareholders and Affiliates
	 	 	54	 






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	 	 	Page	 
	6.12. Conduct of Business
	 	 	55	 
	 
	 	 	 	 
	SECTION 7. GUARANTY
	 	 	55	 
	 
	 	 	 	 
	7.1. Guaranty of the Obligations
	 	 	55	 
	7.2. Contribution by Guarantors
	 	 	55	 
	7.3. Payment by Guarantors
	 	 	56	 
	7.4. Liability of Guarantors Absolute
	 	 	56	 
	7.5. Waivers by Guarantors
	 	 	58	 
	7.6. Guarantors’ Rights of Subrogation, Contribution, Etc.
	 	 	59	 
	7.7. Subordination of Other Obligations
	 	 	59	 
	7.8. Continuing Guaranty
	 	 	60	 
	7.9. Authority of Guarantors or Borrower
	 	 	60	 
	7.10. Financial Condition of Borrower
	 	 	60	 
	7.11. Bankruptcy, Etc.
	 	 	60	 
	7.12. Discharge of Guaranty Upon Sale of Guarantor
	 	 	61	 
	 
	 	 	 	 
	SECTION 8. EVENTS OF DEFAULT
	 	 	61	 
	 
	 	 	 	 
	8.1. Events of Default
	 	 	61	 
	 
	 	 	 	 
	SECTION 9. AGENTS
	 	 	64	 
	 
	 	 	 	 
	9.1. Appointment of Agents
	 	 	64	 
	9.2. Powers and Duties
	 	 	64	 
	9.3. General Immunity
	 	 	64	 
	9.4. Agents Entitled to Act as Lender
	 	 	66	 
	9.5. Lenders Representations, Warranties and Acknowledgment
	 	 	66	 
	9.6. Right to Indemnity
	 	 	66	 
	9.7. Successor Administrative Agent and Collateral Agent
	 	 	67	 
	9.8. Collateral Documents and Guaranty
	 	 	68	 
	9.9. Withholding Taxes
	 	 	70	 
	 
	 	 	 	 
	SECTION 10. MISCELLANEOUS
	 	 	70	 
	 
	 	 	 	 
	10.1. Notices
	 	 	70	 
	10.2. Expenses
	 	 	72	 
	10.3. Indemnity
	 	 	72	 
	10.4. Set-Off
	 	 	73	 
	10.5. Amendments and Waivers
	 	 	73	 
	10.6. Successors and Assigns; Participations
	 	 	75	 
	10.7. Independence of Covenants
	 	 	77	 
	10.8. Survival of Representations, Warranties and Agreements
	 	 	77	 
	10.9. No Waiver; Remedies Cumulative
	 	 	78	 
	10.10. Marshalling; Payments Set Aside
	 	 	78	 
	10.11. Severability
	 	 	78	 
	10.12. Obligations Several; Independent Nature of Lenders’ Rights
	 	 	78	 






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	 	 	Page	 
	10.13. Headings
	 	 	78	 
	10.14. APPLICABLE LAW
	 	 	78	 
	10.15. CONSENT TO JURISDICTION
	 	 	79	 
	10.16. WAIVER OF JURY TRIAL
	 	 	79	 
	10.17. Confidentiality
	 	 	80	 
	10.18. Usury Savings Clause
	 	 	80	 
	10.19. Counterparts
	 	 	81	 
	10.20. Effectiveness; Entire Agreement
	 	 	81	 
	10.21. PATRIOT Act
	 	 	81	 
	10.22. Electronic Execution of Assignments
	 	 	81	 
	10.23. No Fiduciary Duty
	 	 	81	 






	 	 	 	 	 

	APPENDICES:
	 	 	 	 
	 
	 	 	 	 
	 
	 	A	 	Commitments
	 
	 	B	 	Notice Addresses
	 
	 	 	 	 
	SCHEDULES:
	 	 	 	 
	 
	 	 	 	 
	 
	 	4.10	 	Restricted Junior Payments
	 
	 	6.1	 	Certain Indebtedness
	 
	 	6.2	 	Certain Liens
	 
	 	6.6	 	Certain Investments
	 
	 	 	 	 
	EXHIBITS:
	 	 	 	 
	 
	 	 	 	 
	 
	 	A-1	 	Funding Notice
	 
	 	A-2	 	Conversion/Continuation Notice
	 
	 	B	 	Compliance Certificate
	 
	 	C	 	Opinions of Counsel
	 
	 	D	 	Assignment and Assumption Agreement
	 
	 	E	 	Certificate re Non-Bank Status
	 
	 	F	 	Closing Date Certificate
	 
	 	G	 	Counterpart Agreement
	 
	 	H	 	Pledge and Security Agreement






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CREDIT AND GUARANTY AGREEMENT




          This CREDIT AND GUARANTY AGREEMENT, dated as of May 26, 2010, is entered into by and among
VALEANT PHARMACEUTICALS INTERNATIONAL, a Delaware corporation (“Borrower”), CERTAIN SUBSIDIARIES OF
BORROWER, as Guarantors, the Lenders party hereto from time to time, GOLDMAN SACHS CREDIT PARTNERS
L.P. (“GSCP”), as sole lead arranger (the “Arranger”), GOLDMAN SACHS BANK USA (“GSB”), as
Administrative Agent (together with its permitted successors in such capacity, “Administrative
Agent”), as Collateral Agent (together with its permitted successor in such capacity, “Collateral
Agent”) and as a Lender.




RECITALS:




          WHEREAS, capitalized terms used in these Recitals shall have the respective meanings set forth
for such terms in Section 1.1 hereof;




          WHEREAS, Lenders have agreed to extend a term loan to Borrower, in an aggregate principal
amount not to exceed $30,000,000.




          WHEREAS, Borrower has agreed to secure all of its Obligations by granting to Collateral Agent,
for the benefit of Secured Parties, a First Priority Lien on substantially all of its assets; and




          WHEREAS, Guarantors have agreed to guarantee the obligations of Borrower hereunder and to
secure their respective Obligations by granting to Collateral Agent, for the benefit of Secured
Parties, a First Priority Lien on substantially all of their respective assets.




          NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants
herein contained, the parties hereto agree as follows:




          SECTION 1. DEFINITIONS AND INTERPRETATION




          1.1 Definitions. The following terms used herein, including in the preamble, recitals, exhibits
and schedules hereto, shall have the following meanings:




          “2016 Notes Indenture” means that certain Indenture, dated as of June 9, 2009 among Borrower,
the Subsidiary Guarantors party thereto and The Bank of New York Mellon Trust Company, N.A. as
trustee, governing Borrower’s 8.375% Senior Notes due 2016 (the “2016 Notes”).




          “2020 Notes Indenture” means that certain Indenture, dated as of April 9, 2010 among Borrower,
the Subsidiary Guarantors party thereto and The Bank of New York Mellon Trust Company, N.A. as
trustee, governing Borrower’s 7.625% Senior Notes due 2020 (the “2020 Notes”).




          “Adjusted Eurodollar Rate” means, for any Interest Rate Determination Date with respect to an
Interest Period for a Eurodollar Rate Loan, the rate per annum obtained by dividing (and rounding
upward to the next whole multiple of 1/100 of 1%) (i) (a) the rate per






 









 







annum (rounded to the nearest 1/100 of 1%) equal to the rate determined by Administrative Agent
to be the offered rate which appears on the page of the Reuters Screen which displays an average
British Bankers Association Interest Settlement Rate (such page currently being LIBOR01 page) for
deposits (for delivery on the first day of such period) with a term equivalent to such period in
Dollars, determined as of approximately 11:00 a.m. (London, England time) on such Interest Rate
Determination Date, or (b) in the event the rate referenced in the preceding clause (a) does not
appear on such page or service or if such page or service shall cease to be available, the rate per
annum (rounded to the nearest 1/100 of 1%) equal to the rate determined by Administrative Agent to
be the offered rate on such other page or other service which displays an average British Bankers
Association Interest Settlement Rate for deposits (for delivery on the first day of such period)
with a term equivalent to such period in Dollars, determined as of approximately 11:00 a.m.
(London, England time) on such Interest Rate Determination Date, or (c) in the event the rates
referenced in the preceding clauses (a) and (b) are not available, the rate per annum (rounded to
the nearest 1/100 of 1%) equal to the offered quotation rate to first class banks in the London
interbank market by JPMorgan for deposits (for delivery on the first day of the relevant period) in
Dollars of amounts in same day funds comparable to the principal amount of the applicable Loan of
Administrative Agent, in its capacity as a Lender, for which the Adjusted Eurodollar Rate is then
being determined with maturities comparable to such period as of approximately 11:00 a.m. (London,
England time) on such Interest Rate Determination Date, by (ii) an amount equal to (a) one
minus (b) the Applicable Reserve Requirement.




          “Administrative Agent” as defined in the preamble hereto.




          “Adverse Proceeding” means any action, suit, proceeding, hearing (in each case, whether
administrative, judicial or otherwise), governmental investigation or arbitration (whether or not
purportedly on behalf of Borrower or any of its Subsidiaries) at law or in equity, or before or by
any Governmental Authority, domestic or foreign (including any Environmental Claims), whether
pending or, to the knowledge of Borrower or any of its Subsidiaries, threatened against or
affecting Borrower or any of its Subsidiaries or any property of Borrower or any of its
Subsidiaries.




          “Affected Lender” as defined in Section 2.18(b).




          “Affected Loans” as defined in Section 2.18(b).




          “Affiliate” means, as applied to any Person, any other Person directly or indirectly
controlling, controlled by, or under common control with, that Person. For the purposes of this
definition, “control” (including, with correlative meanings, the terms “controlling”, “controlled
by” and “under common control with”), as applied to any Person, means the possession, directly or
indirectly, of the power (i) to vote 5% or more of the Securities having ordinary voting power for
the election of directors of such Person or (ii) to direct or cause the direction of the management
and policies of that Person, whether through the ownership of voting securities or by contract or
otherwise.




          “Agent” means each of (a) Administrative Agent, (b) Collateral Agent, the Arranger and (d) any
other Person appointed under the Credit Documents to serve in an agent or similar capacity.







-2-









 








          “Agent Affiliates” as defined in Section 10.1(b).




          “Aggregate Amounts Due” as defined in Section 2.17.




          “Aggregate Payments” as defined in Section 7.2.




          “Agreement” means this Credit and Guaranty Agreement, dated as of May 26, 2010, as it may be
amended, restated, supplemented or otherwise modified from time to time.




          “Applicable Margin” means 2.75% for Eurodollar Rate Loans and 1.75% for Base Rate Loans.




          “Applicable Reserve Requirement” means, at any time, for any Eurodollar Rate Loan, the maximum
rate, expressed as a decimal, at which reserves (including any basic marginal, special,
supplemental, emergency or other reserves) are required to be maintained with respect thereto
against “Eurocurrency liabilities” (as such term is defined in Regulation D) under regulations
issued from time to time by the Board of Governors or other applicable banking regulator. Without
limiting the effect of the foregoing, the Applicable Reserve Requirement shall reflect any other
reserves required to be maintained by such member banks with respect to (i) any category of
liabilities which includes deposits by reference to which the applicable Adjusted Eurodollar Rate
or any other interest rate of a Loan is to be determined, or (ii) any category of extensions of
credit or other assets which include Eurodollar Rate Loans. A Eurodollar Rate Loan shall be deemed
to constitute Eurocurrency liabilities and as such shall be deemed subject to reserve requirements
without benefits of credit for proration, exceptions or offsets that may be available from time to
time to the applicable Lender. The rate of interest on Eurodollar Rate Loans shall be adjusted
automatically on and as of the effective date of any change in the Applicable Reserve Requirement.




          “Approved Electronic Communications” means any notice, demand, communication, information,
document or other material that any Credit Party provides to Administrative Agent pursuant to any
Credit Document or the transactions contemplated therein which is distributed to Agents or to
Lenders by means of electronic communications pursuant to Section 10.1(b).




          “Asset Sale” means a sale, lease or sub-lease (as lessor or sublessor), sale and leaseback,
assignment, conveyance, exclusive license (as licensor or sublicensor) transfer or other
disposition to, or any exchange of property with, any Person (other than Borrower or any
Guarantor), in one transaction or a series of transactions, of all or any part of Borrower’s or any
of its Subsidiaries’ businesses, assets or properties of any kind, whether real, personal, or mixed
and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed,
including the Equity Interests of any of Borrower’s Subsidiaries, other than (i) inventory (or
other assets) sold, leased or licensed out in the ordinary course of business (excluding any such
sales, leases or licenses out by operations or divisions discontinued or to be discontinued) and
(ii) sales, leases or licenses out of other assets for aggregate consideration from the Closing
Date of less than $2.5 million.







-3-









 








          “Assignment Agreement” means an Assignment and Assumption Agreement substantially in the form
of Exhibit E, with such amendments or modifications as may be approved by Administrative Agent.




          “Assignment Effective Date” as defined in Section 10.6(b).




          “Authorized Officer” means, as applied to any Person, any individual holding the position of
chairman of the board (if an officer), chief executive officer, president, vice president (or the
equivalent thereof), chief financial officer or treasurer of such Person; provided that the
secretary or assistant secretary of such Person shall have delivered an incumbency certificate to
the Administrative Agent as to the authority of such Authorized Officer.




          “Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy,” as now and
hereafter in effect, or any successor statute.




          “Base Rate” means, for any day, a rate per annum equal to the greater of (i) the Prime Rate in
effect on such day and (ii) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1%.
Any change in the Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate
shall be effective on the effective day of such change in the Prime Rate or the Federal Funds
Effective Rate, respectively. On any day that Base Rate Loans are outstanding, in no event shall
the Base Rate be less than the sum of (i) the Adjusted Eurodollar Rate that would be payable on
such day for a Eurodollar Rate Loan with a one-month interest period plus (ii) the difference
between the Applicable Margin for Eurodollar Rate Loans and the Applicable Margin for Base Rate
Loans.




          “Base Rate Loan” means a Loan bearing interest at a rate determined by reference to the Base
Rate.




          “Beneficiary” means each Agent, Lender and Lender Counterparty.




          “Board of Governors” means the Board of Governors of the United States Federal Reserve System,
or any successor thereto.




          “Borrower” as defined in the preamble hereto.




          “Business Day” means (i) any day excluding Saturday, Sunday and any day which is a legal
holiday under the laws of the State of New York or is a day on which banking institutions located
in such state are authorized or required by law or other governmental action to close and (ii) with
respect to all notices, determinations, fundings and payments in connection with the Adjusted
Eurodollar Rate or any Eurodollar Rate Loans, the term “Business Day” means any day which is a
Business Day described in clause (i) and which is also a day for trading by and between banks in
Dollar deposits in the London interbank market.




          “Capital Lease” means, as applied to any Person, any lease of any property (whether real,
personal or mixed) by that Person as lessee that, in conformity with GAAP, is or should be
accounted for as a capital lease on the balance sheet of that Person.







-4-









 








          “Cash” means money, currency or a credit balance in any demand or Deposit Account.




          “Cash Equivalents” means, as at any date of determination, any of the following: (i)
marketable securities (a) issued or directly and unconditionally guaranteed as to interest and
principal by the United States Government or (b) issued by any agency of the United States the
obligations of which are backed by the full faith and credit of the United States, in each case
maturing within one year after such date; (ii) marketable direct obligations issued by any state of
the United States of America or any political subdivision of any such state or any public
instrumentality thereof, in each case maturing within one year after such date and having, at the
time of the acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from Moody’s;
(iii) commercial paper maturing no more than three months from the date of creation thereof and
having, at the time of the acquisition thereof, a rating of at least A-1 from S&P or at least P-1
from Moody’s; (iv) certificates of deposit or bankers’ acceptances maturing within three months
after such date and issued or accepted by any Lender or by any commercial bank organized under the
laws of the United States of America or any state thereof or the District of Columbia that (a) is
at least “adequately capitalized” (as defined in the regulations of its primary Federal banking
regulator) and (b) has Tier 1 capital (as defined in such regulations) of not less than
$1,000,000,000; and (v) shares of any money market mutual fund that (a) has substantially all of
its assets invested continuously in the types of investments referred to in clauses (i) through
(iv) above, (b) has net assets of not less than $5,000,000,000, and (c) has the highest rating
obtainable from either S&P or Moody’s.




          “Certificate re Non-Bank Status” means a certificate substantially in the form of Exhibit F.




          “Change of Control” means (i) any Person or “group” (within the meaning of Rules 13d-3 and
13d-5 under the Exchange Act) (a) shall have acquired beneficial ownership or control of 35% or
more on a fully diluted basis of the voting and/or economic interest in the Equity Interests of
Borrower or (b) shall have obtained the power (whether or not exercised) to elect a majority of the
members of the board of directors (or similar governing body) of Borrower; (ii) the majority of the
seats (other than vacant seats) on the board of directors (or similar governing body) of Borrower
cease to be occupied by Persons who either (a) were members of the board of directors of Borrower
on the Closing Date or (b) were nominated for election by the board of directors of Borrower, a
majority of whom were directors on the Closing Date or whose election or nomination for election
was previously approved by a majority of such directors; or (iii) any “change of control” or
similar event under the 2016 Notes Indenture or the 2020 Notes Indenture, shall occur.




          “Closing Date” means the date on which the Loans are made, which occurred on May 26, 2010.




          “Closing Date Certificate” means a Closing Date Certificate substantially in the form of
Exhibit G-1.




          “Collateral” means, collectively, all of the property in which Liens are purported to be
granted pursuant to the Collateral Documents as security for the Obligations.







-5-









 








          “Collateral Agent” as defined in the preamble hereto.




          “Collateral Documents” means the Pledge and Security Agreement and all other instruments,
documents and agreements delivered by any Credit Party pursuant to this Agreement or any of the
other Credit Documents in order to grant to Collateral Agent, for the benefit of Secured Parties, a
Lien on any property of that Credit Party as security for the Obligations.




          “Collateral Questionnaire” means a certificate in form satisfactory to Collateral Agent that
provides information with respect to the personal or mixed property of each Credit Party.




          “Commitment” means the commitment of Lender to make or otherwise fund a Loan and “Commitments”
means such commitments of all Lenders in the aggregate, as applicable. The amount of Lender’s
Commitment is set forth on Appendix A-1. The aggregate amount of the Commitments as of the Closing
Date is $30,000,000.




          “Compliance Certificate” means a Compliance Certificate substantially in the form of Exhibit
C.




          “Consolidated Adjusted EBITDA” means, with respect to Borrower for any period, the
Consolidated Net Income of Borrower for such period plus:





     (1) an amount equal to any extraordinary loss plus any net loss realized by Borrower or
any of its Subsidiaries in connection with an Asset Sale, to the extent such losses were
deducted in computing such Consolidated Net Income; plus




     (2) provision for taxes based on income or profits of Borrower and its Subsidiaries for
such period, to the extent that such provision for taxes was deducted in computing such
Consolidated Net Income; plus




     (3) consolidated interest expense of Borrower and its Subsidiaries for such period,
whether paid or accrued and whether or not capitalized (including, without limitation,
amortization of debt issuance costs and original issue discount, non-cash interest payments,
the interest component of any deferred payment obligations, the interest component of all
payments associated with Capital Leases, commissions, discounts and other fees and charges
incurred in respect of letter of credit or bankers’ acceptance financings, and net of the
effect of all payments made or received pursuant to interest rate hedging obligations), to
the extent that any such expense was deducted in computing such Consolidated Net Income;
plus




     (4) any restructuring charges (which, for the avoidance of doubt, shall include
retention, severance, systems establishment costs, excess pension charges, contract
termination costs and costs to consolidate facilities and relocate employees), to the extent
that any such charge or expense was deducted in computing such Consolidated Net Income; plus




     (5) depreciation, amortization (including amortization of intangibles but excluding
amortization of prepaid cash expenses that were paid in a prior period), and other



-6-









 






non-cash charges or expenses (excluding any such non-cash charge or expense to the
extent that it represents an accrual of or reserve for cash expenses in any future period or
amortization of a prepaid cash expense that was paid in a prior period) of Borrower and its
Subsidiaries for such period to the extent that such depreciation, amortization and other
non-cash charge or expenses were deducted in computing such Consolidated Net Income; minus




     (6) non-cash items increasing such Consolidated Net Income for such period, other than
the accrual of revenue in the ordinary course of business,


in each case, on a consolidated basis and determined in accordance with GAAP.




          Notwithstanding the preceding, the provision for taxes based on the income or profits of, and
the depreciation and amortization and other non-cash expenses of, a Subsidiary of the Borrower will
be added to Consolidated Net Income to compute Consolidated Adjusted EBITDA of the Borrower only to
the extent that a corresponding amount would be permitted at the date of determination to be
dividended to the Borrower by such Subsidiary without prior governmental approval (that has not
been obtained), and without direct or indirect restriction pursuant to the terms of its charter and
all agreements, instruments, judgments, decrees, orders, statutes, rules and governmental
regulations applicable to that Subsidiary or its stockholders.




          “Consolidated Net Income” means, with respect to Borrower for any period, the aggregate of the
Net Income of Borrower and its Subsidiaries for such period, on a consolidated basis, determined in
accordance with GAAP; provided that:





     (1) the Net Income (but not loss) of Borrower that is accounted for by the equity
method of accounting will be included only to the extent of the amount of dividends or
distributions paid in cash to the Borrower or a Subsidiary of the Borrower;




     (2) the Net Income of any Subsidiary will be excluded to the extent that the
declaration or payment of dividends or similar distributions by that Subsidiary of that Net
Income is not at the date of determination permitted without any prior governmental approval
(that has not been obtained) or, directly or indirectly, by operation of the terms of its
charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Subsidiary or its stockholders;




     (3) the cumulative effect of a change in accounting principles will be excluded;




     (4) any extraordinary or nonrecurring gain or loss and any expense or charge in
connection with acquired intellectual property and research & development will be excluded;




     (5) any extraordinary or nonrecurring gain or loss and any expense or charge
attributable to the disposition of discontinued operations will be excluded;



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     (6) charges incurred in connection with the retirement or redemption of the 3%
Convertible Subordinated Notes due 2010, the 4% Convertible Subordinated Notes due 2013, the
8.375% Senior Notes due 2016 will be excluded;




     (7) any gain (but not loss), together with any related provision for taxes on such gain
(but not loss), realized in connection with: (a) any Asset Sale; or (b) the disposition of
any securities by Borrower or any of its Subsidiaries or the extinguishment of any
Indebtedness of Borrower or any of its Subsidiaries will be excluded; and




     (8) any extraordinary gain (but not loss), together with any related provision for
taxes on such extraordinary gain (but not loss) will be excluded.



          “Consolidated Total Debt” means, as at any date of determination, the aggregate stated balance
sheet amount of all Indebtedness of Borrower and its Subsidiaries (or, if higher, the par value or
stated face amount of all such Indebtedness (other than zero coupon Indebtedness)) determined on a
consolidated basis in accordance with GAAP.




          “Contractual Obligation” means, as applied to any Person, any provision of any Security issued
by that Person or of any indenture, mortgage, deed of trust, contract, undertaking, agreement or
other instrument to which that Person is a party or by which it or any of its properties is bound
or to which it or any of its properties is subject.




          “Contributing Guarantors” as defined in Section 7.2.




          “Conversion/Continuation Date” means the effective date of a continuation or conversion, as
the case may be, as set forth in the applicable Conversion/Continuation Notice.




          “Conversion/Continuation Notice” means a Conversion/Continuation Notice substantially in the
form of Exhibit A-2.




          “Counterpart Agreement” means a Counterpart Agreement substantially in the form of Exhibit H
delivered by a Credit Party pursuant to Section 5.10.




          “Credit Date” means the date of a Credit Extension, which shall be the date even herewith.




          “Credit Document” means any of this Agreement, the Collateral Documents and all other
documents, instruments or agreements executed and delivered by a Credit Party for the benefit of
any Agent or any Lender in connection herewith on or after the date hereof.




          “Credit Extension” means the making of a Loan.




          “Credit Party” means each Person (other than any Agent or any Lender or any other
representative thereof) from time to time party to a Credit Document.




          “Currency Agreement” means any foreign exchange contract, currency swap agreement, futures
contract, option contract, synthetic cap or other similar agreement or






-8-









 







arrangement, each of which is for the purpose of hedging the foreign currency risk associated
with Borrower’s and its Subsidiaries’ operations and not for speculative purposes.




          “Default” means a condition or event that, after notice or lapse of time or both, would
constitute an Event of Default.




          “Deposit Account” means a demand, time, savings, passbook or like account with a bank, savings
and loan association, credit union or like organization, other than an account evidenced by a
negotiable certificate of deposit.




          “Disqualified Equity Interests” means any Equity Interest which, by its terms (or by the terms
of any security or other Equity Interests into which it is convertible or for which it is
exchangeable), or upon the happening of any event or condition (i) matures or is mandatorily
redeemable (other than solely for Equity Interests which are not otherwise Disqualified Equity
Interests), pursuant to a sinking fund obligation or otherwise, (ii) is redeemable at the option of
the holder thereof (other than solely for Equity Interests which are not otherwise Disqualified
Equity Interests), in whole or in part (iii) provides for the scheduled payments or dividends in
cash, or (iv) is or becomes convertible into or exchangeable for Indebtedness or any other Equity
Interests that would constitute Disqualified Equity Interests, in each case, prior to the date that
is 91 days after the Maturity Date, except, in the case of clauses (i) and (ii), if as a result of
a change of control or asset sale, so long as any rights of the holders thereof upon the occurrence
of such a change of control or asset sale event are subject to the prior payment in full of all
Obligations.




          “Dollars” and the sign “$” mean the lawful money of the United States of America.




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




          “Eligible Assignee” means any Person other than a natural Person that is (i) a Lender, an
Affiliate of any Lender or a Related Fund (any two or more Related Funds being treated as a single
Eligible Assignee for all purposes hereof), or (ii) a commercial bank, insurance company,
investment or mutual fund or other entity that is an “accredited investor” (as defined in
Regulation D under the Securities Act) and which extends credit or buys loans in the ordinary
course of business; provided, neither any Credit Party nor any Affiliate thereof shall be
an Eligible Assignee.




          “Employee Benefit Plan” means any “employee benefit plan” as defined in Section 3(3) of ERISA
which is or was sponsored, maintained or contributed to by, or required to be contributed by,
Borrower, any of its Subsidiaries or any of their respective ERISA Affiliates.




          “Environmental Claim” means any investigation, notice, notice of violation, claim, action,
suit, proceeding, demand, abatement order or other order or directive (conditional or otherwise),
by any Governmental Authority or any other Person, arising (i) pursuant to or in connection with
any actual or alleged violation of any Environmental Law; (ii) in connection with any Hazardous
Material or any actual or alleged Hazardous Materials Activity; or (iii) in






-9-









 







connection with any actual or alleged damage, injury, threat or harm to health, safety,
natural resources or the environment.




          “Environmental Laws” means any and all current or future foreign or domestic, federal or state
(or any subdivision of either of them), statutes, ordinances, orders, rules, regulations,
judgments, Governmental Authorizations, or any other requirements of Governmental Authorities
relating to (i) environmental matters, including those relating to any Hazardous Materials
Activity; (ii) the generation, use, storage, transportation or disposal of Hazardous Materials; or
(iii) occupational safety and health, industrial hygiene, land use or the protection of human,
plant or animal health or welfare, in any manner applicable to Borrower or any of its Subsidiaries
or any Facility.




          “Equity Interests” means any and all shares, interests, participations or other equivalents
(however designated) of capital stock of a corporation, any and all equivalent ownership interests
in a Person (other than a corporation), including partnership interests and membership interests,
and any and all warrants, rights or options to purchase or other arrangements or rights to acquire
any of the foregoing.




          “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to
time, and any successor thereto.




          “ERISA Affiliate” means, as applied to any Person, (i) any corporation which is a member of a
controlled group of corporations within the meaning of Section 414(b) of the Internal Revenue Code
of which that Person is a member; (ii) any trade or business (whether or not incorporated) which is
a member of a group of trades or businesses under common control within the meaning of Section
414(c) of the Internal Revenue Code of which that Person is a member; and (iii) any member of an
affiliated service group within the meaning of Section 414(m) or (o) of the Internal Revenue Code
of which that Person, any corporation described in clause (i) above or any trade or business
described in clause (ii) above is a member. Any former ERISA Affiliate of Borrower or any of its
Subsidiaries shall continue to be considered an ERISA Affiliate of Borrower or any such Subsidiary
within the meaning of this definition with respect to the period such entity was an ERISA Affiliate
of Borrower or such Subsidiary and with respect to liabilities arising after such period for which
Borrower or such Subsidiary could be liable under the Internal Revenue Code or ERISA.




          “ERISA Event” means (i) a “reportable event” within the meaning of Section 4043 of ERISA and
the regulations issued thereunder with respect to any Pension Plan (excluding those for which the
provision for 30-day notice to the PBGC has been waived by regulation); (ii) the failure to meet
the minimum funding standard of Section 412 of the Internal Revenue Code with respect to any
Pension Plan (whether or not waived in accordance with Section 412(c) of the Internal Revenue Code)
or the failure to make by its due date a required installment under Section 430(j) of the Internal
Revenue Code with respect to any Pension Plan or the failure to make any required contribution to a
Multiemployer Plan; (iii) the provision by the administrator of any Pension Plan pursuant to
Section 4041(a)(2) of ERISA of a notice of intent to terminate such plan in a distress termination
described in Section 4041(c) of ERISA; (iv) the withdrawal by Borrower, any of its Subsidiaries or
any of their respective ERISA Affiliates from any Pension Plan with two or more contributing
sponsors or the termination of any such Pension Plan






-10-









 







resulting in liability to Borrower, any of its Subsidiaries or any of their respective
Affiliates pursuant to Section 4063 or 4064 of ERISA; (v) the institution by the PBGC of
proceedings to terminate any Pension Plan, or the occurrence of any event or condition which might
constitute grounds under ERISA for the termination of, or the appointment of a trustee to
administer, any Pension Plan; (vi) the imposition of liability on Borrower, any of its Subsidiaries
or any of their respective ERISA Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by
reason of the application of Section 4212(c) of ERISA; (vii) the withdrawal of Borrower, any of its
Subsidiaries or any of their respective ERISA Affiliates in a complete or partial withdrawal
(within the meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer Plan if there is any
potential liability therefore, or the receipt by Borrower, any of its Subsidiaries or any of their
respective ERISA Affiliates of notice from any Multiemployer Plan that it is in reorganization or
insolvency pursuant to Section 4241 or 4245 of ERISA, or that it intends to terminate or has
terminated under Section 4041A or 4042 of ERISA; (viii) the occurrence of an act or omission which
could give rise to the imposition on Borrower, any of its Subsidiaries or any of their respective
ERISA Affiliates of fines, penalties, taxes or related charges under Chapter 43 of the Internal
Revenue Code or under Section 409, Section 502(c), (i) or (l), or Section 4071 of ERISA in respect
of any Employee Benefit Plan; (ix) the assertion of a material claim (other than routine claims for
benefits) against any Employee Benefit Plan other than a Multiemployer Plan or the assets thereof,
or against Borrower, any of its Subsidiaries or any of their respective ERISA Affiliates in
connection with any Employee Benefit Plan; (x) receipt from the Internal Revenue Service of notice
of the failure of any Pension Plan (or any other Employee Benefit Plan intended to be qualified
under Section 401(a) of the Internal Revenue Code) to qualify under Section 401(a) of the Internal
Revenue Code, or the failure of any trust forming part of any Pension Plan to qualify for exemption
from taxation under Section 501(a) of the Internal Revenue Code; or (xi) the imposition of a lien
pursuant to Section 430(k) of the Internal Revenue Code or ERISA or a violation of Section 436 of
the Internal Revenue Code.




          “Eurodollar Rate Loan” means a Loan bearing interest at a rate determined by reference to the
Adjusted Eurodollar Rate.




          “Event of Default” means each of the conditions or events set forth in Section 8.1.




          “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, and
any successor statute.




          “Existing Notes” means the 2016 Notes and 2020 Notes.




          “Facility” means any real property (including all buildings, fixtures or other improvements
located thereon) now, hereafter or heretofore owned, leased, operated or used by Borrower or any of
its Subsidiaries or any of their respective predecessors or Affiliates.




          “Fair Share Contribution Amount” as defined in Section 7.2.




          “Fair Share” as defined in Section 7.2.




          “Federal Funds Effective Rate” means for any day, the rate per annum (expressed, as a decimal,
rounded upwards, if necessary, to the next higher 1/100 of 1%) equal to






-11-









 







the weighted average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal
Reserve Bank of New York on the Business Day next succeeding such day; provided, (i) if
such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Business Day as so published on the next succeeding Business
Day, and (ii) if no such rate is so published on such next succeeding Business Day, the Federal
Funds Rate for such day shall be the average rate charged to Administrative Agent on such day on
such transactions as determined by Administrative Agent.




          “Financial Officer Certification” means, with respect to the financial statements for which
such certification is required, the certification of the chief financial officer of Borrower that
such financial statements fairly present, in all material respects, the financial condition of
Borrower and its Subsidiaries as at the dates indicated and the results of their operations and
their cash flows for the periods indicated, subject to changes resulting from audit and normal
year-end adjustments.




          “First Priority” means, with respect to any Lien purported to be created in any Collateral
pursuant to any Collateral Document, that such Lien is the only Lien to which such Collateral is
subject, other than any Permitted Lien.




          “Fiscal Quarter” means a fiscal quarter of any Fiscal Year.




          “Fiscal Year” means the fiscal year of Borrower and its Subsidiaries ending on December 31 of
each calendar year.




          “Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.




          “Funding Guarantors” as defined in Section 7.2.




          “Funding Notice” means a notice substantially in the form of Exhibit A-1.




          “GAAP” means, subject to the limitations on the application thereof set forth in Section 1.2,
United States generally accepted accounting principles in effect as of the date of determination
thereof.




          “Governmental Acts” means any act or omission, whether rightful or wrongful, of any present or
future de jure or de facto government or Governmental Authority.




          “Governmental Authority” means any federal, state, municipal, national or other government,
governmental department, commission, board, bureau, court, agency or instrumentality or political
subdivision thereof or any entity, officer or examiner exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to any government or any court, in each
case whether associated with a state of the United States, the United States, or a foreign entity
or government.




          “Governmental Authorization” means any permit, license, authorization, plan, directive,
consent order or consent decree of or from any Governmental Authority.







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          “Grantor” as defined in the Pledge and Security Agreement.




          “Guaranteed Obligations” as defined in Section 7.1.




          “Guarantor” means each Domestic Subsidiary of Borrower that presently or hereafter becomes a
guarantor of the Existing Notes.




          “Guaranty” means the guaranty of each Guarantor set forth in Section 7.




          “Hazardous Materials” means any chemical, material or substance, exposure to which is
prohibited, limited or regulated by any Governmental Authority or which may or could pose a hazard
to the health and safety of the owners, occupants or any Persons in the vicinity of any Facility or
to the indoor or outdoor environment.




          “Hazardous Materials Activity” means any past, current, proposed or threatened activity, event
or occurrence involving any Hazardous Materials, including the use, manufacture, possession,
storage, holding, presence, existence, location, Release, threatened Release, discharge, placement,
generation, transportation, processing, construction, treatment, abatement, removal, remediation,
disposal, disposition or handling of any Hazardous Materials, and any corrective action or response
action with respect to any of the foregoing.




          “Hedge Agreement” means an Interest Rate Agreement or a Currency Agreement entered into with a
Lender Counterparty.




          “Highest Lawful Rate” means the maximum lawful interest rate, if any, that at any time or from
time to time may be contracted for, charged, or received under the laws applicable to any Lender
which are presently in effect or, to the extent allowed by law, under such applicable laws which
may hereafter be in effect and which allow a higher maximum nonusurious interest rate than
applicable laws now allow.




          “Historical Financial Statements” means as of the Closing Date, (i) the audited financial
statements of Borrower and its Subsidiaries, for the immediately preceding three Fiscal Years,
consisting of balance sheets and the related consolidated statements of income, stockholders’
equity and cash flows for such Fiscal Years, and (ii) the unaudited financial statements of
Borrower and its Subsidiaries as of the most recent Fiscal Quarter ended after the date of the most
recent audited financial statements and at least 45 days prior to the Closing Date, consisting of a
balance sheet and the related consolidated statements of income, stockholders’ equity and cash
flows for the three-, six-or nine-month period, as applicable, ending on such date, and, in the
case of clauses (i) and (ii), certified by the chief financial officer of Borrower that they fairly
present, in all material respects, the financial condition of Borrower and its Subsidiaries as at
the dates indicated and the results of their operations and their cash flows for the periods
indicated, subject to changes resulting from audit and normal year-end adjustments.




          “Increased Amount Date” as defined in Section 2.24.




          “Indebtedness” means, as applied to any Person, without duplication, (i) all indebtedness for
borrowed money; (ii) that portion of obligations with respect to Capital Leases that is properly
classified as a liability on a balance sheet in conformity with GAAP; (iii) notes






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payable and drafts accepted representing extensions of credit whether or not representing
obligations for borrowed money; (iv) any obligation owed for all or any part of the deferred
purchase price of property or services, including any earn-out obligations (excluding any such
obligations incurred under ERISA), which purchase price is (a) due more than six months from the
date of incurrence of the obligation in respect thereof or (b) evidenced by a note or similar
written instrument; (v) all indebtedness secured by any Lien on any property or asset owned or held
by that Person regardless of whether the indebtedness secured thereby shall have been assumed by
that Person or is nonrecourse to the credit of that Person; (vi) the face amount of any letter of
credit issued for the account of that Person or as to which that Person is otherwise liable for
reimbursement of drawings; (vii) Disqualified Equity Interests, (viii) the direct or indirect
guaranty, endorsement (otherwise than for collection or deposit in the ordinary course of
business), co-making, discounting with recourse or sale with recourse by such Person of the
obligation of another; (ix) any obligation of such Person the primary purpose or intent of which is
to provide assurance to an obligee that the obligation of the obligor thereof will be paid or
discharged, or any agreement relating thereto will be complied with, or the holders thereof will be
protected (in whole or in part) against loss in respect thereof; (x) any liability of such Person
for an obligation of another through any agreement (contingent or otherwise) (a) to purchase,
repurchase or otherwise acquire such obligation or any security therefor, or to provide funds for
the payment or discharge of such obligation (whether in the form of loans, advances, stock
purchases, capital contributions or otherwise) or (b) to maintain the solvency or any balance sheet
item, level of income or financial condition of another if, in the case of any agreement described
under subclauses (a) or (b) of this clause (x), the primary purpose or intent thereof is as
described in clause (ix) above; and (xi) the Net Mark-to-Market Exposure of any Hedge Agreement.




          “Indemnified Liabilities” means, collectively, any and all liabilities, obligations, losses,
damages (including natural resource damages), penalties, claims (including Environmental Claims),
actions, judgments, suits, costs (including the costs of any investigation, study, sampling,
testing, abatement, cleanup, removal, remediation or other response action necessary to remove,
remediate, clean up or abate any Hazardous Materials Activity), expenses and disbursements of any
kind or nature whatsoever (including the reasonable fees and disbursements of counsel for
Indemnitees in connection with any investigative, administrative or judicial proceeding or hearing
commenced or threatened by any Person, whether or not any such Indemnitee shall be designated as a
party or a potential party thereto, and any fees or expenses incurred by Indemnitees in enforcing
this indemnity), whether direct, indirect, special or consequential and whether based on any
federal, state or foreign laws, statutes, rules or regulations (including securities and commercial
laws, statutes, rules or regulations and Environmental Laws), on common law or equitable cause or
on contract or otherwise, that may be imposed on, incurred by, or asserted against any such
Indemnitee, in any manner relating to or arising out of (i) this Agreement or the other Credit
Documents or the transactions contemplated hereby or thereby (including the Lenders’ agreement to
make Credit Extensions, or the use or intended use of the proceeds thereof, or any enforcement of
any of the Credit Documents (including any sale of, collection from, or other realization upon any
of the Collateral or the enforcement of the Guaranty)) prior to, on or after the Closing Date; or
(ii) any Environmental Claim or any Hazardous Materials Activity relating to or arising from,
directly or indirectly, any past or present activity, operation, land ownership, or practice of
Borrower or any of its Subsidiaries.




          “Indemnitee” as defined in Section 10.3.







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          “Installment” as defined in Section 2.12.




          “Intellectual Property” as defined in the Pledge and Security Agreement.




          “Interest Payment Date” means with respect to (i) any Loan that is a Base Rate Loan, each
March 31, June 30, September 30 and December 31 of each year, commencing on the first such date to
occur after the Closing Date and the final maturity date of such Loan; and (ii) any Loan that is a
Eurodollar Rate Loan, the last day of each Interest Period applicable to such Loan;
provided, in the case of each Interest Period of longer than three months “Interest Payment
Date” shall also include each date that is three months, or an integral multiple thereof, after the
commencement of such Interest Period.




          “Interest Period” means, in connection with a Eurodollar Rate Loan, an interest period of
one-, two-, three- or six-months, as selected by Borrower in the applicable Funding Notice or
Conversion/Continuation Notice, (i) initially, commencing on the Credit Date or
Conversion/Continuation Date thereof, as the case may be; and (ii) thereafter, commencing on the
day on which the immediately preceding Interest Period expires; provided, (a) if an
Interest Period would otherwise expire on a day that is not a Business Day, such Interest Period
shall expire on the next succeeding Business Day unless no further Business Day occurs in such
month, in which case such Interest Period shall expire on the immediately 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, subject to clause (c) of this definition, end on the last Business Day of a calendar
month; and (c) no Interest Period with respect to any portion of Loans shall extend beyond the
Maturity Date.




          “Interest Rate Agreement” means any interest rate swap agreement, interest rate cap agreement,
interest rate collar agreement, interest rate hedging agreement or other similar agreement or
arrangement, each of which is for the purpose of hedging the interest rate exposure associated with
Borrower’s and its Subsidiaries’ operations and not for speculative purposes.




          “Interest Rate Determination Date” means, with respect to any Interest Period, the date that
is two Business Days prior to the first day of such Interest Period.




          “Internal Revenue Code” means the Internal Revenue Code of 1986, as amended to the date hereof
and from time to time hereafter, and any successor statute.




          “Investment” means (i) any direct or indirect purchase or other acquisition by Borrower or any
of its Subsidiaries of, or of a beneficial interest in, any of the Securities of any other Person
(other than a Guarantor); (ii) any direct or indirect redemption, retirement, purchase or other
acquisition for value, by any Subsidiary of Borrower from any Person (other than Borrower or any
Guarantor), of any Equity Interests of such Person; and (iii) any direct or indirect loan, advance
(other than advances to employees for moving, entertainment and travel expenses, drawing accounts
and similar expenditures in the ordinary course of business) or capital contributions by Borrower
or any of its Subsidiaries to any other Person (other than Borrower or any Guarantor), including
all indebtedness and accounts receivable from that other Person that are not current assets or did
not arise from sales to that other Person in the ordinary course of






-15-









 







business. The amount of any Investment of the type described in clauses (i), (ii) and (iii) shall
be the original cost of such Investment plus the cost of all additions thereto, without any
adjustments for increases or decreases in value, or write-ups, write-downs or write-offs with
respect to such Investment.




          “Joint Venture” means a joint venture, partnership or other similar arrangement, whether in
corporate, partnership or other legal form; provided, in no event shall any corporate
Subsidiary of any Person be considered to be a Joint Venture to which such Person is a party.




          “Lender” means GSB as a Lender, and any other Person that becomes a party hereto pursuant to
an Assignment Agreement.




          “Lender Counterparty” means each Lender, each Agent and each of their respective Affiliates
counterparty to a Hedge Agreement (including any Person who is an Agent or a Lender (and any
Affiliate thereof) as of the Closing Date but subsequently, whether before or after entering into a
Hedge Agreement, ceases to be an Agent or a Lender, as the case may be).




          “Leverage Ratio” means the ratio as of the last day of any Fiscal Quarter of (i) Consolidated
Total Debt as of such day to (ii) Consolidated Adjusted EBITDA for the four-Fiscal Quarter period
ending on such date.




          “Lien” means (i) any lien, mortgage, pledge, assignment, security interest, charge or
encumbrance of any kind (including any agreement to give any of the foregoing, any conditional sale
or other title retention agreement, and any lease or license in the nature thereof) and any option,
trust or other preferential arrangement having the practical effect of any of the foregoing and
(ii) in the case of Securities, any purchase option, call or similar right of a third party with
respect to such Securities.




          “Loan” means a Loan made by Lender to Borrower pursuant to Section 2.1(a).




          “Loan Exposure” means, with respect to Lender, as of any date of determination, the
outstanding principal amount of the Loans of Lender.




          “Margin Stock” as defined in Regulation U of the Board of Governors as in effect from time to
time.




          “Material Adverse Effect” means a material adverse effect on and/or material adverse
developments with respect to (i) the business, operations, properties, assets or condition
(financial or otherwise) of Borrower and its Subsidiaries taken as a whole; (ii) the ability of any
Credit Party to fully and timely perform its Obligations; (iii) the legality, validity, binding
effect or enforceability against a Credit Party of a Credit Document to which it is a party; or
(iv) the rights, remedies and benefits available to, or conferred upon, any Agent and any Lender
or any Secured Party under any Credit Document.




          “Material Contract” means any contract or other arrangement to which Borrower or any of its
Subsidiaries is a party (other than the Credit Documents) for which breach, nonperformance,
cancellation or failure to renew could reasonably be expected to have a Material Adverse Effect.







-16-









 








          “Maturity Date” means the earlier of (i) December 1, 2010 and (ii) the date on which all Loans
shall become due and payable in full hereunder, whether by acceleration or otherwise.




          “Moody’s” means Moody’s Investors Service, Inc.




          “Multiemployer Plan” means any Employee Benefit Plan which is a “multiemployer plan” as
defined in Section 3(37) of ERISA.




          “NAIC” means The National Association of Insurance Commissioners, and any successor thereto.




          “Narrative Report” means, with respect to the financial statements for which such narrative
report is required, a narrative report describing the operations of Borrower and its Subsidiaries
in the form prepared for presentation to senior management thereof for the applicable month, Fiscal
Quarter or Fiscal Year and for the period from the beginning of the then current Fiscal Year to the
end of such period to which such financial statements relate.




          “Net Asset Sale Proceeds” means, with respect to any Asset Sale, an amount equal to: (i) Cash
payments (including any Cash received by way of deferred payment pursuant to, or by monetization
of, a note receivable or otherwise (including by way of milestone payment) but only as and when so
received) received by Borrower or any of its Subsidiaries from such Asset Sale, minus (ii)
any bona fide direct costs incurred in connection with such Asset Sale, including (a) income or
gains taxes payable by the seller as a result of any gain recognized in connection with such Asset
Sale, (b) payment of the outstanding principal amount of, premium or penalty, if any, and interest
on any Indebtedness (other than the Loans) that is secured by a Lien on the stock or assets in
question and that is required to be repaid under the terms thereof as a result of such Asset Sale
and (c) a reasonable reserve for any indemnification payments (fixed or contingent) attributable to
seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale
undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale.




          “Net Income” means, with respect to Borrower, the net income (loss) of Borrower and its
subsidiaries, determined in accordance with GAAP and before any reduction in respect of preferred
stock dividends.




          “Net Insurance/Condemnation Proceeds” means an amount equal to: (i) any Cash payments or
proceeds received by Borrower or any of its Subsidiaries (a) under any property damage insurance
policy in respect of a covered loss thereunder or (b) as a result of the taking of any assets of
Borrower or any of its Subsidiaries by any Person pursuant to the power of eminent domain,
condemnation or otherwise, or pursuant to a sale of any such assets to a purchaser with such power
under threat of such a taking, minus (ii) (a) any actual and reasonable costs incurred by
Borrower or any of its Subsidiaries in connection with the adjustment or settlement of any claims
of Borrower or such Subsidiary in respect thereof, and (b) any bona fide direct costs incurred in
connection with any sale of such assets as referred to in clause (i)(b) of this definition,
including income taxes payable as a result of any gain recognized in connection therewith.







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          “Net Mark-to-Market Exposure” of a Person means, as of any date of determination, the excess
(if any) of all unrealized losses over all unrealized profits of such Person arising from Hedge
Agreements or other Indebtedness of the type described in clause (xi) of the definition thereof.
As used in this definition, “unrealized losses” means the fair market value of the cost to such
Person of replacing such Hedge Agreement or such other Indebtedness as of the date of determination
(assuming the Hedge Agreement or such other Indebtedness were to be terminated as of that date),
and “unrealized profits” means the fair market value of the gain to such Person of replacing such
Hedge Agreement or such other Indebtedness as of the date of determination (assuming such Hedge
Agreement or such other Indebtedness were to be terminated as of that date).




          “Non-Public Information” means information which has not been disseminated in a manner making
it available to investors generally, within the meaning of Regulation FD.




          “Non-US Lender” as defined in Section 2.20(c).




          “Notice” means a Funding Notice or a Conversion/ Continuation Notice.




          “Obligations” means all obligations of every nature of each Credit Party, including
obligations from time to time owed to Agents (including former Agents), Lenders or any of them and
Lender Counterparties, under any Credit Document or Hedge Agreement, whether for principal,
interest (including interest which, but for the filing of a petition in bankruptcy with respect to
such Credit Party, would have accrued on any Obligation, whether or not a claim is allowed against
such Credit Party for such interest in the related bankruptcy proceeding), payments for early
termination of Hedge Agreements, fees, expenses, indemnification or otherwise.




          “Obligee Guarantor” as defined in Section 7.7.




          “Organizational Documents” means (i) with respect to any corporation, its certificate or
articles of incorporation or organization, as amended, and its by-laws, as amended, (ii) with
respect to any limited partnership, its certificate of limited partnership, as amended, and its
partnership agreement, as amended, (iii) with respect to any general partnership, its partnership
agreement, as amended, and (iv) with respect to any limited liability company, its articles of
organization, as amended, and its operating agreement, as amended. In the event any term or
condition of this Agreement or any other Credit Document requires any Organizational Document to be
certified by a secretary of state or similar governmental official, the reference to any such
“Organizational Document” shall only be to a document of a type customarily certified by such
governmental official.




          “PATRIOT Act” as defined in Section 3.1(x).




          “PBGC” means the Pension Benefit Guaranty Corporation or any successor thereto.




          “Pension Plan” means any Employee Benefit Plan, other than a Multiemployer Plan, which is
subject to Section 412 of the Internal Revenue Code or Section 302 of ERISA.




          “Permitted Liens” means each of the Liens permitted pursuant to Section 6.2.







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          “Person” means and includes natural persons, corporations, limited partnerships, general
partnerships, limited liability companies, limited liability partnerships, joint stock companies,
Joint Ventures, associations, companies, trusts, banks, trust companies, land trusts, business
trusts or other organizations, whether or not legal entities, and Governmental Authorities.




          “Platform” as defined in Section 5.1(o).




          “Pledge and Security Agreement” means the Pledge and Security Agreement to be executed by
Borrower and each Guarantor substantially in the form of Exhibit I, as it may be amended, restated,
supplemented or otherwise modified from time to time.




          “Prime Rate” means the rate of interest quoted in the print edition of The Wall Street
Journal, Money Rates Section as the Prime Rate (currently defined as the base rate on corporate
loans posted by at least 75% of the nation’s thirty (30) largest banks), as in effect from time to
time. The Prime Rate is a reference rate and does not necessarily represent the lowest or best
rate actually charged to any customer. Agent or any other Lender may make commercial loans or
other loans at rates of interest at, above or below the Prime Rate.




          “Principal Office” means, for Administrative Agent, the “Principal Office” as set forth on
Appendix B, or such other office or office of a third party or sub-agent, as appropriate, as such
Person may from time to time designate in writing to Borrower, Administrative Agent and each
Lender.




          “Pro Rata Share” means, with respect to all payments, computations and other matters relating
to the Loan of any Lender, the percentage obtained by dividing (a) the Loan Exposure of that Lender
by (b) the aggregate Loan Exposure of all Lenders, at any point outstanding.




          “Real Estate Asset” means, at any time of determination, any interest (fee, leasehold or
otherwise) then owned by any Credit Party in any real property.




          “Register” as defined in Section 2.7(b).




          “Regulation D” means Regulation D of the Board of Governors, as in effect from time to time.




          “Regulation FD” means Regulation FD as promulgated by the U.S. Securities and Exchange
Commission under the Securities Act and Exchange Act as in effect from time to time.




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




          “Release” means any release, spill, emission, leaking, pumping, pouring, injection, escaping,
deposit, disposal, discharge, dispersal, dumping, leaching or migration of any Hazardous Material
into the indoor or outdoor environment (including the abandonment or disposal of any barrels,
containers or other closed receptacles containing any Hazardous Material),






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including the movement of any Hazardous Material through the air, soil, surface water or
groundwater.




          “Required Prepayment Date” as defined in Section 2.15(c).




          “Requisite Lenders” means one or more Lenders having or holding Loan Exposure and representing
more than 50% of the aggregate Loan Exposure of all Lenders.




          “Restricted Junior Payment” means (i) any dividend or other distribution, direct or indirect,
on account of any shares of any class of stock of Borrower or any of its Subsidiaries or any direct
or indirect parent of Borrower now or hereafter outstanding, except a dividend payable solely in
shares of stock to the holders of that class; (ii) any redemption, retirement, sinking fund or
similar payment, purchase or other acquisition for value, direct or indirect, of any shares of any
class of stock of Borrower or any of its Subsidiaries (or any direct or indirect parent thereof)
now or hereafter outstanding; (iii) any payment made to retire, or to obtain the surrender of, any
outstanding warrants, options or other rights to acquire shares of any class of stock of Borrower
or any of its Subsidiaries or any direct or indirect parent of Borrower now or hereafter
outstanding; and (iv) any payment or prepayment of principal of, premium, if any, or interest on,
or redemption, purchase, retirement, defeasance (including in-substance or legal defeasance),
sinking fund or similar payment with respect to, any Subordinated Indebtedness owed to a Person
that is not the Borrower or a Guarantor or the Existing Notes.




          “S&P” means Standard & Poor’s, a Division of The McGraw -Hill Companies, Inc.




          “Secured Parties” has the meaning assigned to that term in the Pledge and Security Agreement.




          “Securities” means any stock, shares, partnership interests, voting trust certificates,
certificates of interest or participation in any profit-sharing agreement or arrangement, options,
warrants, bonds, debentures, notes, or other evidences of indebtedness, secured or unsecured,
convertible, subordinated or otherwise, or in general any instruments commonly known as
“securities” or any certificates of interest, shares or participations in temporary or interim
certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire,
any of the foregoing.




          “Securities Act” means the Securities Act of 1933, as amended from time to time, and any
successor statute.




          “Solvency Certificate” means a Solvency Certificate of the chief financial officer of Borrower
substantially in the form of Exhibit G-2.




          “Solvent” means, with respect to any Credit Party, that as of the date of determination, both
(i) (a) the sum of such Credit Party’s debt (including contingent liabilities) does not exceed the
present fair saleable value of such Credit Party’s present assets; (b) such Credit Party’s capital
is not unreasonably small in relation to its business as contemplated on the Closing Date or with
respect to any transaction contemplated to be undertaken after the Closing Date; and (c) such
Person has not incurred and does not intend to incur, or believe (nor should it





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reasonably believe) that it will incur, debts beyond its ability to pay such debts as they become
due (whether at maturity or otherwise); and (ii) such Person is “solvent” within the meaning given
that term and similar terms under the Bankruptcy Code and applicable laws relating to fraudulent
transfers and conveyances. For purposes of this definition, the amount of any contingent liability
at any time shall be computed as the amount that, in light of all of the facts and circumstances
existing at such time, represents the amount that can reasonably be expected to become an actual or
matured liability (irrespective of whether such contingent liabilities meet the criteria for
accrual under Statement of Financial Accounting Standard No. 5).




          “Subject Transaction” as defined in Section 6.7(f).




          “Subordinated Indebtedness” shall mean Indebtedness of the Borrower or any Guarantor that is
by its terms subordinated in right of payment to the Obligations of Borrower and such Guarantor.




          “Subsidiary” means, with respect to any Person, any corporation, partnership, limited
liability company, association, joint venture or other business entity of which more than 50% of
the total voting power of shares of stock or other ownership interests entitled (without regard to
the occurrence of any contingency) to vote in the election of the Person or Persons (whether
directors, managers, trustees or other Persons performing similar functions) having the power to
direct or cause the direction of the management and policies thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that
Person or a combination thereof; provided, in determining the percentage of ownership
interests of any Person controlled by another Person, no ownership interest in the nature of a
“qualifying share” of the former Person shall be deemed to be outstanding.




          “Tax” means any present or future tax, levy, impost, duty, assessment, charge, fee, deduction
or withholding of any nature and whatever called, by whomsoever, on whomsoever and wherever
imposed, levied, collected, withheld or assessed; provided, “Tax on the overall net income”
of a Person shall be construed as a reference to a tax imposed by the jurisdiction in which that
Person is organized or in which that Person’s applicable principal office (and/or, in the case of a
Lender, its lending office) is located or in which that Person (and/or, in the case of a Lender,
its lending office) is deemed to be doing business on all or part of the net income, profits or
gains (whether worldwide, or only insofar as such income, profits or gains are considered to arise
in or to relate to a particular jurisdiction, or otherwise) of that Person (and/or, in the case of
a Lender, its applicable lending office).




          “Transactions” as defined in Section 3.1(w).




          “Type of Loan” means, with respect to the Loans, a Base Rate Loan or a Eurodollar Rate Loan.




          “UCC” means the Uniform Commercial Code (or any similar or equivalent legislation) as in
effect in any applicable jurisdiction.




          “U.S. Lender” as defined in Section 2.20(c).




          “Waivable Mandatory Prepayment” as defined in Section 2.15(c).





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          1.2. Accounting Terms. Except as otherwise expressly provided herein, all accounting terms
not otherwise defined herein shall have the meanings assigned to them in conformity with GAAP.
Financial statements and other information required to be delivered by Borrower to Lenders pursuant
to Section 5.1(a) or 5.1(b) shall be prepared in accordance with GAAP as in effect at the time of
such preparation (and delivered together with the reconciliation statements provided for in Section
5.1(e), if applicable). Subject to the foregoing, calculations in connection with the definitions,
covenants and other provisions hereof shall utilize accounting principles and policies in
conformity with those used to prepare the Historical Financial Statements. Any calculations of the
financial covenant set forth in Section 6.7 hereof shall be made on a pro forma basis and certified
by the chief financial officer of the Borrower.




          1.3. Interpretation, Etc. Any of the terms defined herein may, unless the context otherwise
requires, be used in the singular or the plural, depending on the reference. References herein to
any Section, Appendix, Schedule or Exhibit shall be to a Section, an Appendix, a Schedule or an
Exhibit, as the case may be, hereof unless otherwise specifically provided. The use herein of the
word “include” or “including”, when following any general statement, term or matter, shall not be
construed to limit such statement, term or matter to the specific items or matters set forth
immediately following such word or to similar items or matters, whether or not non-limiting
language (such as “without limitation” or “but not limited to” or words of similar import) is used
with reference thereto, but rather shall be deemed to refer to all other items or matters that fall
within the broadest possible scope of such general statement, term or matter. The terms lease and
license shall include sub-lease and sub-license, as applicable.




          SECTION 2. LOANS




          2.1. Loans.




          (a) Commitments. Subject to the terms and conditions hereof, each Lender agrees to
make, on the Closing Date, a Loan to Borrower in an amount equal to Lender’s Commitment. Borrower
may make only one borrowing under the Commitment which shall be on the Closing Date. Any amount
borrowed under this Section 2.1(a) and subsequently repaid or prepaid may not be reborrowed.
Subject to Sections 2.13(a) and 2.14, all amounts owed hereunder with respect to the Loans shall be
paid in full no later than the Maturity Date. Each Lender’s Commitment shall terminate immediately
and without further action on the Closing Date after giving effect to the funding of that Lender’s
Commitment.




          (b) Borrowing Mechanics for Loans.




          (i) Borrower shall deliver to Administrative Agent a fully executed Funding Notice no later
than 12:00 p.m. (New York City time) on the Business Day before the Closing Date. Promptly upon
receipt by Administrative Agent of such Funding Notice, Administrative Agent shall notify each
Lender of the proposed borrowing.




          (ii) Each Lender shall make its Loan available to Administrative Agent not later than 12:00
p.m. (New York City time) on the Closing Date, by wire transfer of same day funds in Dollars, at
the Principal office designated by Administrative Agent. Upon satisfaction or waiver of the
conditions precedent specified herein, Administrative Agent shall make the proceeds





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of the Loans
available to Borrower on the Closing Date by causing an amount of same day funds in Dollars equal
to the proceeds of all such Loans received by Administrative Agent from Lenders to be credited to
the account of Borrower at the Principal Office designated by Administrative Agent or to such other
account as may be designated in writing to Administrative Agent by Borrower.




          2.2. [Reserved].




          2.3. [Reserved].




          2.4. [Reserved].




          2.5. Pro Rata Shares. All Loans shall be made, and all participations purchased, by Lenders
simultaneously and proportionately to their respective Pro Rata Shares, it being understood that no
Lender shall be responsible for any default by any other Lender in such other Lender’s obligation
to make a Loan requested hereunder nor shall any Commitment of any Lender be increased or decreased
as a result of a default by any other Lender in such other Lender’s obligation to make a Loan
requested hereunder.




          2.6. Use of Proceeds. The proceeds of the Loans made on the Closing Date shall be used by
Borrower for the acquisition of Princeton Pharma Holdings LLC and for working capital and general
corporate purposes. No portion of the proceeds of any Credit Extension shall be used in any manner
that causes or might cause such Credit Extension or the application of such proceeds to violate
Regulation T, Regulation U or Regulation X of the Board of Governors or any other regulation
thereof or to violate the Exchange Act.




          2.7. Evidence of Debt; Register; Lender’s Books and Records; Notes.




          (a) Lenders’ Evidence of Debt. Each Lender shall maintain on its internal records an
account or accounts evidencing the Obligations of Borrower to such Lender, including the amounts of
the Loans made by it and each repayment and prepayment in respect thereof. Any such recordation
shall be conclusive and binding on Borrower, absent manifest error; provided, that the
failure to make any such recordation, or any error in such recordation, shall not affect Borrower’s
Obligations in respect of any applicable Loans; and provided further, in the event
of any inconsistency between the Register and any Lender’s records, the recordations in the
Register shall govern.




          (b) Register. Administrative Agent (or its agent or sub-agent appointed by it) shall
maintain at its Principal Office a register for the recordation of the names and addresses of
Lenders and Loans of each Lender from time to time (the “Register”). The Register shall be
available for inspection by Borrower or Lender (with respect to any entry relating to such Lender’s
Loans) at any reasonable time and from time to time upon reasonable prior notice. Administrative
Agent shall record, or shall cause to be recorded, in the Register the Loans in accordance with the
provisions of Section 10.6, and each repayment or prepayment in respect of the principal amount of
the Loans, and any such recordation shall be conclusive and binding on Borrower and Lender, absent
manifest error; provided, failure to make any such recordation, or any error in such
recordation, shall not affect Borrower’s Obligations in respect of any Loan. Borrower hereby
designates Administrative Agent to serve as Borrower’s agent solely for purposes





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of maintaining the
Register as provided in this Section 2.7, and Borrower hereby agrees that, to the extent
Administrative Agent serves in such capacity, Administrative Agent and its officers, directors,
employees, agents, sub-agents and affiliates shall constitute “Indemnitees.”




          2.8. Interest on Loans.




          (a) Except as otherwise set forth herein, Loans shall bear interest on the unpaid principal
amount thereof from the date made through repayment (whether by acceleration or otherwise) thereof
as follows:





          (i) if a Base Rate Loan, at the Base Rate plus the Applicable Margin; or




          (ii) if a Eurodollar Rate Loan, at the Adjusted Eurodollar Rate plus the Applicable
Margin.



          (b) The basis for determining the rate of interest with respect to any Loan and the Interest
Period with respect to any Eurodollar Rate Loan shall be selected by Borrower and notified to
Administrative Agent and Lenders pursuant to the applicable Funding Notice or
Conversion/Continuation Notice, as the case may be. If on any day a Loan is outstanding with
respect to which a Funding Notice or Conversion/Continuation Notice has not been delivered to
Administrative Agent in accordance with the terms hereof specifying the applicable basis for
determining the rate of interest, then for that day such Loan shall be a Base Rate Loan.




          (c) In connection with Eurodollar Rate Loans there shall be no more than two (2) Interest
Periods outstanding at any time. In the event Borrower fails to specify between a Base Rate Loan
or a Eurodollar Rate Loan in the applicable Funding Notice or Conversion/Continuation Notice, such
Loan (if outstanding as a Eurodollar Rate Loan) will be automatically converted into a Base Rate
Loan on the last day of the then-current Interest Period for such Loan (or if outstanding as a Base
Rate Loan will remain as, or (if not then outstanding) will be made as, a Base Rate Loan). In the
event Borrower fails to specify an Interest Period for any Eurodollar Rate Loan in the applicable
Funding Notice or Conversion/Continuation Notice, Borrower shall be deemed to have selected an
Interest Period of one month. As soon as practicable after 10:00 a.m. (New York City time) on each
Interest Rate Determination Date, Administrative Agent shall determine (which determination shall,
absent manifest error, be final, conclusive and binding upon all parties) the interest rate that
shall apply to the Eurodollar Rate Loans for which an interest rate is then being determined for
the applicable Interest Period and shall promptly give notice thereof (in writing or by telephone
confirmed in writing) to Borrower and Lender.




          (d) Interest payable pursuant to Section 2.8(a) shall be computed (i) in the case of Base Rate
Loans on the basis of a 365-day or 366-day year, as the case may be, and (ii) in the case of
Eurodollar Rate Loans, on the basis of a 360-day year, in each case for the actual number of days
elapsed in the period during which it accrues. In computing interest on any Loan, the date of the
making of such Loan or the first day of an Interest Period applicable to such Loan or the last
Interest Payment Date with respect to such Loan or, with respect to a Base Rate Loan being
converted from a Eurodollar Rate Loan, the date of conversion of such Eurodollar Rate Loan to such
Base Rate Loan, as the case may be, shall be included, and the date of payment of such Loan or the
expiration date of an Interest Period applicable to such Loan or, with




-24-









 







respect to a Base Rate Loan
being converted to a Eurodollar Rate Loan, the date of conversion of such Base Rate Loan to such
Eurodollar Rate Loan, as the case may be, shall be excluded; provided, if a Loan is repaid
on the same day on which it is made, one day’s interest shall be paid on that Loan.




          (e) Except as otherwise set forth herein, interest on each Loan (i) shall accrue on a daily
basis and shall be payable in arrears on each Interest Payment Date with respect to interest
accrued on and to each such payment date; (ii) shall accrue on a daily basis and shall be payable
in arrears upon any prepayment of that Loan, whether voluntary or mandatory, to the extent accrued
on the amount being prepaid; and (iii) shall accrue on a daily basis and shall be payable in
arrears at maturity of the Loans, including final maturity of the Loans; provided, however,
with respect to any voluntary prepayment of a Base Rate Loan, accrued interest shall instead be
payable on the applicable Interest Payment Date.




          2.9. Conversion/Continuation.




          (a) Subject to Section 2.18 and so long as no Default or Event of Default shall have occurred
and then be continuing, Borrower shall have the option:





          (i) to convert at any time all or any part of any Loan equal to $5,000,000 and integral
multiples of $1,000,000 in excess of that amount from one Type of Loan to another Type of Loan; provided, a Eurodollar Rate Loan may only be converted on
the expiration of the Interest Period applicable to such Eurodollar Rate Loan unless
Borrower shall pay all amounts due under Section 2.18 in connection with any such
conversion; or




          (ii) upon the expiration of any Interest Period applicable to any Eurodollar Rate Loan,
to continue all or any portion of such Loan equal to $5,000,000 and integral multiples of
$1,000,000 in excess of that amount as a Eurodollar Rate Loan.



          (b) Subject to Section 3.2(b), Borrower shall deliver a Conversion/Continuation Notice to
Administrative Agent no later than 10:00 a.m. (New York City time) at least one Business Day in
advance of the proposed conversion date (in the case of a conversion to a Base Rate Loan) and at
least three Business Days in advance of the proposed conversion/continuation date (in the case of a
conversion to, or a continuation of, a Eurodollar Rate Loan). Except as otherwise provided herein,
a Conversion/Continuation Notice for conversion to, or continuation of, any Eurodollar Rate Loans
shall be irrevocable on and after the related Interest Rate Determination Date, and Borrower shall
be bound to effect a conversion or continuation in accordance therewith.




          2.10. Default Interest. Upon the occurrence and during the continuance of an Event of Default
under Section 8.1(a), (c), (f) or (g) and, at the request of Requisite Lenders, any other Event of
Default, the principal amount of all Loans outstanding and, to the extent permitted by applicable
law, any interest payments on the Loans or any fees or other amounts owed hereunder, shall
thereafter bear interest (including post-petition interest in any proceeding under the Bankruptcy
Code or other applicable bankruptcy laws) payable on demand at a rate that is 2% per annum in
excess of the interest rate otherwise payable hereunder with respect to the applicable Loans (or,
in the case of any such fees and other amounts, at a rate which is 2% per annum in





-25-









 







excess of the
interest rate otherwise payable hereunder for Base Rate Loans); provided, in the case of
Eurodollar Rate Loans, upon the expiration of the Interest Period in effect at the time any such
increase in interest rate is effective such Eurodollar Rate Loans shall thereupon become Base Rate
Loans and shall thereafter bear interest payable upon demand at a rate which is 2% per annum in
excess of the interest rate otherwise payable hereunder for Base Rate Loans. Payment or acceptance
of the increased rates of interest provided for in this Section 2.10 is not a permitted alternative
to timely payment and shall not constitute a waiver of any Event of Default or otherwise prejudice
or limit any rights or remedies of Administrative Agent or any Lender.




          2.11. [Reserved].




          2.12. Repayment of Loans. The principal amount of the Loan shall be repaid in full on the
Maturity Date.




          2.13. Voluntary Prepayments.




          (a) Voluntary Prepayments.




          (i) Any time and from time to time:





     (1) with respect to Base Rate Loans, Borrower may prepay any such Loans on any Business
Day in whole or in part, in an aggregate minimum amount of $2,500,000 and integral multiples
of $500,000 in excess of that amount; and




     (2) with respect to Eurodollar Rate Loans, Borrower may prepay any such Loans on any
Business Day in whole or in part in an aggregate minimum amount of $2,500,000 and integral
multiples of $500,000 in excess of that amount.



          (ii) All such prepayments shall be made:





     (1) upon not less than one Business Day’s prior written or telephonic notice in the
case of Base Rate Loans; and




     (2) upon not less than three Business Days’ prior written or telephonic notice in the
case of Eurodollar Rate Loans;


in each case given to Administrative Agent by 1:00 p.m. (New York City time) on the date required
and, if given by telephone, promptly confirmed by delivery of written notice thereof to
Administrative Agent (and Administrative Agent will promptly transmit such original notice for
Loans by telefacsimile or telephone to each Lender). Upon the giving of any such notice, the
principal amount of the Loans specified in such notice shall become due and payable on the
prepayment date specified therein. Any such voluntary prepayment shall be applied as specified in
Section 2.15(a).




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          2.14. Mandatory Prepayments/Commitment Reductions.




          (a) Asset Sales. No later than the first Business Day following the date of receipt
by Borrower or any of its Subsidiaries of any Net Asset Sale Proceeds, Borrower shall prepay the
Loans in an aggregate amount equal to such Net Asset Sale Proceeds.




          (b) Insurance/Condemnation Proceeds. No later than the first Business Day following
the date of receipt by Borrower or any of its Subsidiaries, or Administrative Agent as loss payee,
of any Net Insurance/Condemnation Proceeds in excess of $2.0 million, Borrower shall prepay the
Loans in an aggregate amount equal to such Net Insurance/Condemnation Proceeds.




          (c) Issuance of Equity Securities. On the date of receipt by Borrower of any Cash
proceeds from a capital contribution to, or the issuance of any Equity Interests of, Borrower or
any of its Subsidiaries other than pursuant to any employee stock or stock option compensation
plan, Borrower shall prepay the Loans in an aggregate amount equal to 100% of such proceeds, net of
underwriting discounts and commissions and other reasonable costs and expenses associated
therewith, including reasonable legal fees and expenses.




          (d) Issuance of Debt. On the date of receipt by Borrower or any of its Subsidiaries
of any Cash proceeds from the incurrence of any Indebtedness of Borrower or any of its Subsidiaries
(other than with respect to any Indebtedness permitted to be incurred pursuant to Section 6.1),
Borrower shall prepay the Loans in an aggregate amount equal to 100% of such proceeds, net of
underwriting discounts and commissions and other reasonable costs and expenses associated
therewith, including reasonable legal fees and expenses.




          (e) Prepayment Certificate. Concurrently with any prepayment of the Loans pursuant to
Sections 2.14(a) through 2.14(d), Borrower shall deliver to Administrative Agent a certificate of
an Authorized Officer demonstrating the calculation of the amount of the applicable net proceeds.
In the event that Borrower shall subsequently determine that the actual amount received exceeded
the amount set forth in such certificate, Borrower shall promptly make an additional prepayment of
the Loans, and Borrower shall concurrently therewith deliver to Administrative Agent a certificate
of an Authorized Officer demonstrating the derivation of such excess.




          2.15. Application of Prepayments . Any prepayment of any Loan pursuant to Section 2.13 or
2.14 shall be applied pro rata to repay outstanding Loans. Any prepayment of Loans shall be
applied first to Base Rate Loans to the full extent thereof before application to Eurodollar Rate
Loans, in each case in a manner which minimizes the amount of any payments required to be made by
Borrower pursuant to Section 2.18(c).




          2.16. General Provisions Regarding Payments.




          (a) All payments by Borrower of principal, interest, fees and other Obligations shall be made
in Dollars in same day funds, without defense, setoff or counterclaim, free of any restriction or
condition, and delivered to Administrative Agent not later than 12:00 p.m. (New York City time) on
the date due at the Principal Office designated by Administrative Agent for the account of Lenders;
for purposes of computing interest and fees, funds received by




-27-









 







Administrative Agent after that time
on such due date shall be deemed to have been paid by Borrower on the next succeeding Business Day.




          (b) All payments in respect of the principal amount of any Loan shall be accompanied by
payment of accrued interest on the principal amount being repaid or prepaid, and all such payments
(and, in any event, any payments in respect of any Loan on a date when interest is due and payable
with respect to such Loan) shall be applied to the payment of interest then due and payable before
application to principal.




          (c) Administrative Agent (or its agent or sub-agent appointed by it) shall promptly distribute
to each Lender at such address as such Lender shall indicate in writing, such Lender’s applicable
Pro Rata Share of all payments and prepayments of principal and interest due hereunder, together
with all other amounts due thereto, including all fees payable with respect thereto, to the extent
received by Administrative Agent.




          (d) Notwithstanding the foregoing provisions hereof, if any Conversion/ Continuation Notice is
withdrawn as to any Affected Lender or if any Affected Lender makes Base Rate Loans in lieu of its
Pro Rata Share of any Eurodollar Rate Loans, Administrative Agent shall give effect thereto in
apportioning payments received thereafter.




          (e) Whenever any payment to be made hereunder with respect to any Loan shall be stated to be
due on a day that is not a Business Day, such payment shall be made on the next succeeding Business
Day.




          (f) Borrower hereby authorizes Administrative Agent to charge Borrower’s accounts with
Administrative Agent in order to cause timely payment to be made to Administrative Agent of all
principal, interest, fees and expenses due hereunder (subject to sufficient funds being available
in its accounts for that purpose).




          (g) Administrative Agent shall deem any payment by or on behalf of Borrower hereunder that is
not made in same day funds prior to 12:00 p.m. (New York City time) to be a non-conforming payment.
Any such payment shall not be deemed to have been received by Administrative Agent until the later
of (i) the time such funds become available funds, and (ii) the applicable next Business Day.
Administrative Agent shall give prompt telephonic notice to Borrower and each applicable Lender
(confirmed in writing) if any payment is non-conforming. Any non-conforming payment may constitute
or become a Default or Event of Default in accordance with the terms of Section 8.1(a). Interest
shall continue to accrue on any principal as to which a non-conforming payment is made until such
funds become available funds (but in no event less than the period from the date of such payment to
the next succeeding applicable Business Day) at the rate determined pursuant to Section 2.10 from
the date such amount was due and payable until the date such amount is paid in full.




          (h) If an Event of Default shall have occurred and not otherwise been waived, and the maturity
of the Obligations shall have been accelerated pursuant to Section 8.1, all payments or proceeds
received by Agents hereunder in respect of any of the Obligations, shall be applied in accordance
with the application arrangements described in Section 9.2 of the Pledge and Security Agreement.





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          2.17. Ratable Sharing. Lenders hereby agree among themselves that if any of them shall,
whether by voluntary payment (other than a voluntary prepayment of Loans made and applied in
accordance with the terms hereof), through the exercise of any right of set-off or banker’s lien,
by counterclaim or cross action or by the enforcement of any right under the Credit Documents or
otherwise, or as adequate protection of a deposit treated as cash collateral under the Bankruptcy
Code, receive payment or reduction of a proportion of the amount due and owing to such Lender
hereunder or under the other Credit Documents (collectively, the “Aggregate Amounts Due” to such
Lender) which is greater than the proportion received by any other Lender in respect of the
Aggregate Amounts Due to such other Lender, then the Lender receiving such proportionately greater
payment shall (a) notify Administrative Agent and each other Lender of the receipt of such payment
and (b) apply a portion of such payment to purchase participations (which it shall be deemed to
have purchased from each seller of a participation simultaneously upon the receipt
by such seller of its portion of such payment) in the Aggregate Amounts Due to the other
Lenders so that all such recoveries of Aggregate Amounts Due shall be shared by all Lenders in
proportion to the Aggregate Amounts Due to them; provided, if all or part of such
proportionately greater payment received by such purchasing Lender is thereafter recovered from
such Lender upon the bankruptcy or reorganization of Borrower or otherwise, those purchases shall
be rescinded and the purchase prices paid for such participations shall be returned to such
purchasing Lender ratably to the extent of such recovery, but without interest. Borrower expressly
consents to the foregoing arrangement and agrees that any holder of a participation so purchased
may exercise any and all rights of banker’s lien, set-off or counterclaim with respect to any and
all monies owing by Borrower to that holder with respect thereto as fully as if that holder were
owed the amount of the participation held by that holder. The provisions of this Section 2.17
shall not be construed to apply to (a) any payment made by Borrower pursuant to and in accordance
with the express terms of this Agreement or (b) any payment obtained by any Lender as consideration
for the assignment or sale of a participation in any of its Loans or other Obligations owed to it.




          2.18. Making or Maintaining Eurodollar Rate Loans.




          (a) Inability to Determine Applicable Interest Rate. In the event that Administrative
Agent shall have determined (which determination shall be final and conclusive and binding upon all
parties hereto), on any Interest Rate Determination Date with respect to any Eurodollar Rate Loans,
that by reason of circumstances affecting the London interbank market adequate and fair means do
not exist for ascertaining the interest rate applicable to such Loans on the basis provided for in
the definition of Adjusted Eurodollar Rate, Administrative Agent shall on such date give notice (by
telefacsimile or by telephone confirmed in writing) to Borrower and each Lender of such
determination, whereupon (i) no Loans may be made as, or converted to, Eurodollar Rate Loans until
such time as Administrative Agent notifies Borrower and Lenders that the circumstances giving rise
to such notice no longer exist, and (ii) any Funding Notice or Conversion/Continuation Notice given
by Borrower with respect to the Loans in respect of which such determination was made shall be
deemed to be rescinded by Borrower.




          (b) Illegality or Impracticability of Eurodollar Rate Loans. In the event that on any
date any Lender shall have determined (which determination shall be final and conclusive




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and
binding upon all parties hereto) that the making, maintaining or continuation of its Eurodollar
Rate Loans (i) has become unlawful as a result of compliance by such Lender in good faith with any
law, treaty, governmental rule, regulation, guideline or order (or would conflict with any such
treaty, governmental rule, regulation, guideline or order not having the force of law even though
the failure to comply therewith would not be unlawful), or (ii) has become impracticable, as a
result of contingencies occurring after the date hereof which materially and adversely affect the
London interbank market or the position of such Lender in that market, then, and in any such event,
such Lender shall be an “Affected Lender” and it shall on that day give notice (by e-mail or by
telephone confirmed in writing) to Borrower and Administrative Agent of such determination (which
notice Administrative Agent shall promptly transmit to each other Lender). If the Administrative
Agent receives a notice from (x) any Lender pursuant to clause (i) of the
preceding sentence or (y) a notice from Lenders constituting Requisite Lenders pursuant to
clause (ii) of the preceding sentence, then (1) the obligation of the Lenders (or, in the case of
any notice pursuant to clause (i) of the preceding sentence, such Lender) to make Loans as, or to
convert Loans to, Eurodollar Rate Loans shall be suspended until such notice shall be withdrawn by
each Affected Lender, (2) to the extent such determination by the Affected Lender relates to a
Eurodollar Rate Loan then being requested by Borrower pursuant to a Funding Notice or a
Conversion/Continuation Notice, the Lenders (or in the case of any notice pursuant to clause (i) of
the preceding sentence, such Lender) shall make such Loan as (or continue such Loan as or convert
such Loan to, as the case may be) a Base Rate Loan, (3) the Lenders’ (or in the case of any notice
pursuant to clause (i) of the preceding sentence, such Lender’s) obligations to maintain their
respective outstanding Eurodollar Rate Loans (the “Affected Loans”) shall be terminated at the
earlier to occur of the expiration of the Interest Period then in effect with respect to the
Affected Loans or when required by law, and (4) the Affected Loans shall automatically convert into
Base Rate Loans on the date of such termination. Notwithstanding the foregoing, to the extent a
determination by an Affected Lender as described above relates to a Eurodollar Rate Loan then being
requested by Borrower pursuant to a Funding Notice or a Conversion/Continuation Notice, Borrower
shall have the option, subject to the provisions of Section 2.18(c), to rescind such Funding Notice
or Conversion/Continuation Notice as to all Lenders by giving written or telephonic notice
(promptly confirmed by delivery of written notice thereof) to Administrative Agent of such
rescission on the date on which the Affected Lender gives notice of its determination as described
above (which notice or rescission Administrative Agent shall promptly transmit to each other
Lender).




          (c) Compensation for Breakage or Non-Commencement of Interest Periods. Borrower shall
compensate each Lender, upon written request by such Lender (which request shall set forth the
basis for requesting such amounts), for all reasonable losses, expenses and liabilities (including
any interest paid by such Lender to Lenders of funds borrowed by it to make or carry its Eurodollar
Rate Loans and any loss, expense or liability sustained by such Lender in connection with the
liquidation or re-employment of such funds but excluding loss of anticipated profits) which such
Lender may sustain: (i) if for any reason (other than a default by such Lender) a borrowing of any
Eurodollar Rate Loan does not occur on a date specified therefor in a Funding Notice or a
telephonic request for borrowing, or a conversion to or continuation of any Eurodollar Rate Loan
does not occur on a date specified therefor in a Conversion/Continuation Notice or a telephonic
request for conversion or continuation; (ii) if any prepayment or other principal payment of, or
any conversion of, any of its Eurodollar Rate Loans occurs on a date prior to the last day of an
Interest Period applicable to that Loan; or (iii) if any prepayment of




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any of its Eurodollar Rate
Loans is not made on any date specified in a notice of prepayment given by Borrower.




          (d) Booking of Eurodollar Rate Loans. Any Lender may make, carry or transfer
Eurodollar Rate Loans at, to, or for the account of any of its branch offices or the office of an
Affiliate of such Lender.




          (e) Assumptions Concerning Funding of Eurodollar Rate Loans. Calculation of all
amounts payable to a Lender under this Section 2.18 and under Section 2.19 shall be made as though
such Lender had actually funded each of its relevant Eurodollar Rate Loans through the purchase of
a Eurodollar deposit bearing interest at the rate obtained pursuant to clause (i) of
the definition of Adjusted Eurodollar Rate in an amount equal to the amount of such Eurodollar
Rate Loan and having a maturity comparable to the relevant Interest Period and through the transfer
of such Eurodollar deposit from an offshore office of such Lender to a domestic office of such
Lender in the United States of America; provided, however, each Lender may fund
each of its Eurodollar Rate Loans in any manner it sees fit and the foregoing assumptions shall be
utilized only for the purposes of calculating amounts payable under this Section 2.18 and under
Section 2.19.




          2.19. Increased Costs; Capital Adequacy.




          (a) Compensation For Increased Costs and Taxes. Subject to the provisions of Section
2.20 (which shall be controlling with respect to the matters covered thereby), in the event that
any Lender shall determine (which determination shall, absent manifest error, be final and
conclusive and binding upon all parties hereto) that any law, treaty or governmental rule,
regulation or order, or any change therein or in the interpretation, administration or application
thereof (including the introduction of any new law, treaty or governmental rule, regulation or
order), or any determination of a court or governmental authority, in each case that becomes
effective after the date hereof, or compliance by such Lender with any guideline, request or
directive issued or made after the date hereof by any central bank or other governmental or
quasi-governmental authority (whether or not having the force of law): (i) subjects such Lender (or
its applicable lending office) to any additional Tax (other than any Tax on the overall net income
of such Lender) with respect to this Agreement or any of the other Credit Documents or any of its
obligations hereunder or thereunder or any payments to such Lender (or its applicable lending
office) of principal, interest, fees or any other amount payable hereunder; (ii) imposes, modifies
or holds applicable any reserve (including any marginal, emergency, supplemental, special or other
reserve), special deposit, compulsory loan, FDIC insurance or similar requirement against assets
held by, or deposits or other liabilities in or for the account of, or advances or loans by, or
other credit extended by, or any other acquisition of funds by, any office of such Lender (other
than any such reserve or other requirements with respect to Eurodollar Rate Loans that are
reflected in the definition of Adjusted Eurodollar Rate); or (iii) imposes any other condition
(other than with respect to a Tax matter) on or affecting such Lender (or its applicable lending
office) or its obligations hereunder or the London interbank market; and the result of any of the
foregoing is to increase the cost to such Lender of agreeing to make, making or maintaining Loans
hereunder or to reduce any amount received or receivable by such Lender (or its applicable lending
office) with respect thereto; then, in any such case, Borrower shall promptly pay to such Lender,
upon receipt of the statement referred to in the next sentence, such additional




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amount or amounts
(in the form of an increased rate of, or a different method of calculating, interest or otherwise
as such Lender in its sole discretion shall determine) as may be necessary to compensate such
Lender for any such increased cost or reduction in amounts received or receivable hereunder. Such
Lender shall deliver to Borrower (with a copy to Administrative Agent) a written statement, setting
forth in reasonable detail the basis for calculating the additional amounts owed to such Lender
under this Section 2.19(a), which statement shall be conclusive and binding upon all parties hereto
absent manifest error.




          (b) Capital Adequacy Adjustment. In the event that any Lender shall have determined
that the adoption, effectiveness, phase-in or applicability after the Closing Date of any law, rule
or regulation (or any provision thereof) regarding capital adequacy, or any change therein or in
the interpretation or administration thereof by any Governmental Authority, central bank or
comparable agency charged with the interpretation or administration thereof, or compliance by any
Lender (or its applicable lending office) with any guideline, request or directive regarding
capital adequacy (whether or not having the force of law) of any such Governmental Authority,
central bank or comparable agency, has or would have the effect of reducing the rate of return on
the capital of such Lender or any corporation controlling such Lender as a consequence of, or with
reference to, such Lender’s Loans, or participations therein or other obligations hereunder with
respect to the Loans to a level below that which such Lender or such controlling corporation could
have achieved but for such adoption, effectiveness, phase-in, applicability, change or compliance
(taking into consideration the policies of such Lender or such controlling corporation with regard
to capital adequacy), then from time to time, within five Business Days after receipt by Borrower
from such Lender of the statement referred to in the next sentence, Borrower shall pay to such
Lender such additional amount or amounts as will compensate such Lender or such controlling
corporation on an after-tax basis for such reduction. Such Lender shall deliver to Borrower (with
a copy to Administrative Agent) a written statement, setting forth in reasonable detail the basis
for calculating the additional amounts owed to Lender under this Section 2.19(b), which statement
shall be conclusive and binding upon all parties hereto absent manifest error.




          2.20. Taxes; Withholding, Etc.




          (a) Payments to Be Free and Clear. All sums payable by or on behalf of any Credit
Party hereunder and under the other Credit Documents shall (except to the extent required by law)
be paid free and clear of, and without any deduction or withholding on account of, any Tax (other
than a Tax on the overall net income of any Lender) imposed, levied, collected, withheld or
assessed by or within the United States of America or any political subdivision in or of the United
States of America or any other jurisdiction from or to which a payment is made by or on behalf of
any Credit Party or by any federation or organization of which the United States of America or any
such jurisdiction is a member at the time of payment.




          (b) Withholding of Taxes. If any Credit Party or any other Person is required by law
to make any deduction or withholding on account of any such Tax from any sum paid or payable by any
Credit Party to Administrative Agent or any Lender under any of the Credit Documents: (i) Borrower
shall notify Administrative Agent of any such requirement or any change in any such requirement as
soon as Borrower becomes aware of it; (ii) Borrower shall pay any such Tax before the date on which
penalties attach thereto, such payment to be made (if





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the liability to pay is imposed on any Credit
Party) for its own account or (if that liability is imposed on Administrative Agent or such Lender,
as the case may be) on behalf of and in the name of Administrative Agent or such Lender; (iii) the
sum payable by such Credit Party in respect of which the relevant deduction, withholding or payment
is required shall be increased to the extent necessary to ensure that, after the making of that
deduction, withholding or payment, Administrative Agent or such Lender, as the case may be,
receives on the due date a net sum equal to what it would have received had no such deduction,
withholding or payment been required or made; and (iv) within thirty days after paying any sum from
which it is required by law to make
any deduction or withholding, and within thirty days after the due date of payment of any Tax
which it is required by clause (ii) above to pay, Borrower shall deliver to Administrative Agent
evidence satisfactory to the other affected parties of such deduction, withholding or payment and
of the remittance thereof to the relevant taxing or other authority; provided, no such additional
amount shall be required to be paid to any Lender under clause (iii) above except to the extent
that any change after the date hereof (in the case of each Lender listed on the signature pages
hereof on the Closing Date) or after the effective date of the Assignment Agreement pursuant to
which such Lender became a Lender (in the case of each other Lender) in any such requirement for a
deduction, withholding or payment as is mentioned therein shall result in an increase in the rate
of such deduction, withholding or payment from that in effect at the date hereof or at the date of
such Assignment Agreement, as the case may be, in respect of payments to such Lender; provided that
additional amounts shall be payable to a Lender to the extent such Lender’s assignor was entitled
to receive such additional amounts.




          (c) Evidence of Exemption from U.S. Withholding Tax. Each Lender that is not a United
States Person (as such term is defined in Section 7701(a)(30) of the Internal Revenue Code) for
U.S. federal income tax purposes (a “Non-US Lender”) shall deliver to Administrative Agent for
transmission to Borrower, on or prior to the Closing Date (in the case of each Lender listed on the
signature pages hereof on the Closing Date) or on or prior to the date of the Assignment Agreement
pursuant to which it becomes a Lender (in the case of each other Lender), and at such other times
as may be necessary in the determination of Borrower or Administrative Agent (each in the
reasonable exercise of its discretion), (i) two original copies of Internal Revenue Service Form
W-8BEN, W-8ECI and/or W-8IMY (or, in each case, any successor forms), properly completed and duly
executed by such Lender, and such other documentation required under the Internal Revenue Code and
reasonably requested by Borrower to establish that such Lender is not subject to deduction or
withholding of United States federal income tax with respect to any payments to such Lender of
principal, interest, fees or other amounts payable under any of the Credit Documents, or (ii) if
such Lender is not a “bank” or other Person described in Section 881(c)(3) of the Internal Revenue
Code, a Certificate re Non-Bank Status together with two original copies of Internal Revenue
Service Form W-8BEN (or any successor form), properly completed and duly executed by such Lender,
and such other documentation required under the Internal Revenue Code and reasonably requested by
Borrower to establish that such Lender is not subject to deduction or withholding of United States
federal income tax with respect to any payments to such Lender of interest payable under any of the
Credit Documents. Each Lender that is a United States person (as such term is defined in Section
7701(a)(30) of the Internal Revenue Code) for United States federal income tax purposes (a “U.S.
Lender”) and is not an exempt recipient within the meaning of Treasury Regulation Section
1.6049-4(c) shall deliver to Administrative Agent and Borrower on or prior to the Closing Date (or,
if later, on or prior to the date on which such Lender becomes a party to this Agreement) two
original copies of





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Internal Revenue Service Form W-9 (or any successor form), properly completed
and duly executed by such Lender, certifying that such U.S. Lender is entitled to an exemption from
United States backup withholding tax, or otherwise prove that it is entitled to such an exemption.
Each Lender required to deliver any forms, certificates or other evidence with respect to United
States federal income tax withholding matters pursuant to this Section 2.20(c) hereby agrees, from
time to time after the initial delivery by such Lender of such forms, certificates or other
evidence, whenever a lapse in time or change in circumstances renders such forms, certificates or
other evidence obsolete or inaccurate in any material respect, that such Lender shall promptly
deliver
to Administrative Agent for transmission to Borrower two new original copies of Internal
Revenue Service Form W-8BEN, W-8ECI and/or W-8IMY (or, in each case, any successor form), or a
Certificate re Non-Bank Status and two original copies of Internal Revenue Service Form W-8BEN (or
any successor form), as the case may be, properly completed and duly executed by such Lender, and
such other documentation required under the Internal Revenue Code and reasonably requested by
Borrower to confirm or establish that such Lender is not subject to deduction or withholding of
United States federal income tax with respect to payments to such Lender under the Credit
Documents, or notify Administrative Agent and Borrower of its inability to deliver any such forms,
certificates or other evidence. Borrower shall not be required to pay any additional amount to any
Non-US Lender under Section 2.20(b)(iii) if such Lender shall have failed (1) to deliver the forms,
certificates or other evidence referred to in the first sentence of this Section 2.20(c), or (2) to
notify Administrative Agent and Borrower of its inability to deliver any such forms, certificates
or other evidence, as the case may be; provided, if such Lender shall have satisfied the
requirements of the first sentence of this Section 2.20(c) on the Closing Date or on the date of
the Assignment Agreement pursuant to which it became a Lender, as applicable, nothing in this last
sentence of Section 2.20(c) shall relieve Borrower of its obligation to pay any additional amounts
pursuant this Section 2.20 in the event that, as a result of any change in any applicable law,
treaty or governmental rule, regulation or order, or any change in the interpretation,
administration or application thereof, such Lender is no longer properly entitled to deliver forms,
certificates or other evidence at a subsequent date establishing the fact that such Lender is not
subject to withholding as described herein.




          2.21. Obligation to Mitigate. Each Lender agrees that, as promptly as practicable after the
officer of such Lender responsible for administering its Loans becomes aware of the occurrence of
an event or the existence of a condition that would cause such Lender to become an Affected Lender
or that would entitle such Lender to receive payments under Section 2.18, 2.19 or 2.20, it will, to
the extent not inconsistent with the internal policies of such Lender and any applicable legal or
regulatory restrictions, use reasonable efforts to (a) make, issue, fund or maintain its Credit
Extensions, including any Affected Loans, through another office of such Lender, or (b) take such
other measures as such Lender may deem reasonable, if as a result thereof the circumstances which
would cause such Lender to be an Affected Lender would cease to exist or the additional amounts
which would otherwise be required to be paid to such Lender pursuant to Section 2.18, 2.19 or 2.20
would be materially reduced and if, as determined by such Lender in its sole discretion, the
making, issuing, funding or maintaining of such Loans through such other office or in accordance
with such other measures, as the case may be, would not otherwise adversely affect such Loans or
the interests of such Lender; provided, such Lender will not be obligated to utilize such
other office pursuant to this Section 2.21 unless Borrower agrees to pay all incremental expenses
incurred by such Lender as a result of utilizing such other office as described above. A
certificate as to the amount of any such expenses payable by Borrower





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pursuant to this Section 2.21
(setting forth in reasonable detail the basis for requesting such amount) submitted by such Lender
to Borrower (with a copy to Administrative Agent) shall be conclusive absent manifest error.




SECTION 3. CONDITIONS PRECEDENT




          3.1. Closing Date. The obligation of Lender to make a Credit Extension on the Closing Date is
subject to the satisfaction, or waiver in accordance with Section 10.5, of the following conditions
on or before the Closing Date:





     (a) Credit Documents. Administrative Agent shall have received sufficient
copies of each Credit Document originally executed and delivered by each applicable Credit
Party for each Lender.




     (b) Organizational Documents; Incumbency. Administrative Agent shall have
received (i) sufficient copies of each Organizational Document executed and delivered by
each Credit Party, as applicable, and, to the extent applicable, certified as of a recent
date by the appropriate governmental official, for each Lender, each dated the Closing Date
or a recent date prior thereto; (ii) signature and incumbency certificates of the officers
of such Person executing the Credit Documents to which it is a party; (iii) resolutions of
the Board of Directors or similar governing body of each Credit Party approving and
authorizing the execution, delivery and performance of this Agreement and the other Credit
Documents to which it is a party or by which it or its assets may be bound as of the Closing
Date, certified as of the Closing Date by its secretary or an assistant secretary as being
in full force and effect without modification or amendment; (iv) a good standing certificate
from the applicable Governmental Authority of each Credit Party’s jurisdiction of
incorporation, organization or formation, each dated a recent date prior to the Closing
Date; and (v) such other documents as Administrative Agent may reasonably request.




     (c) Governmental Authorizations and Consents. Each Credit Party shall have
obtained all Governmental Authorizations and all consents of other Persons, in each case
that are necessary or advisable in connection with the transactions contemplated by the
Credit Documents and each of the foregoing shall be in full force and effect and in form and
substance reasonably satisfactory to Administrative Agent. All applicable waiting periods
shall have expired without any action being taken or threatened by any competent authority
which would restrain, prevent or otherwise impose adverse conditions on the transactions
contemplated by the Credit Documents or the financing thereof and no action, request for
stay, petition for review or rehearing, reconsideration, or appeal with respect to any of
the foregoing shall be pending, and the time for any applicable agency to take action to set
aside its consent on its own motion shall have expired.




     (d) Personal Property Collateral. In order to create in favor of Collateral
Agent, for the benefit of Secured Parties, a valid, perfected First Priority security
interest in the personal property Collateral, each Credit Party shall have delivered to
Collateral Agent:



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     (i) evidence satisfactory to Collateral Agent of the compliance by each Credit
Party of their obligations under the Pledge and Security Agreement and the other
Collateral Documents (including their obligations to execute and deliver UCC financing statements, originals of securities, instruments and
chattel paper);




     (ii) opinions of counsel (which counsel shall be reasonably satisfactory to
Collateral Agent) with respect to the creation and perfection of the security
interests in favor of Collateral Agent in such Collateral and such other matters
governed by the laws of each jurisdiction in which any Credit Party or any personal
property Collateral is located as Collateral Agent may reasonably request, in each
case in form and substance reasonably satisfactory to Collateral Agent;




     (iii) evidence that each Credit Party shall have taken or caused to be taken
any other action, executed and delivered or caused to be executed and delivered any
other agreement, document and instrument and made or caused to be made any other
filing and recording (other than as set forth herein) reasonably required by
Collateral Agent; and




     (iv) evidence satisfactory to Collateral Agent that Borrower has retained, at
its sole cost and expense, a service provider acceptable to Collateral Agent for the
tracking of all of UCC financing statements of Borrower and the Guarantors and that
will provide notification to Collateral Agent of, among other things, the upcoming
lapse or expiration thereof.




     (e) Opinions of Counsel to Credit Parties. The Administrative Agent and its
counsel shall have received originally executed copies of the favorable written opinions of
Morgan, Lewis & Bockius LLP counsel for Credit Parties, dated as of the Closing Date and in
form and substance reasonably satisfactory to Administrative Agent (and each Credit Party
hereby instructs such counsel to deliver such opinions to the Administrative Agent).




     (f) Closing Date Certificate. Borrower shall have delivered to Administrative
Agent an originally executed Closing Date Certificate, together with all attachments
thereto.




     (g) Historical Financial Statements. The Administrative Agent shall have
received the Historical Financial Statements.




     (h) Completion of Proceedings. All partnership, corporate and other
proceedings taken or to be taken in connection with the transactions contemplated hereby and
all documents incidental thereto not previously found acceptable by Administrative Agent and
its counsel shall be satisfactory in form and substance to Administrative Agent and such
counsel, and Administrative Agent and such counsel shall have received all such counterpart
originals or certified copies of such documents as Administrative Agent may reasonably
request.



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     (i) Letter of Direction. Administrative Agent shall have received a duly
executed letter of direction from Borrower addressed to Administrative Agent, on behalf of
itself and Lender, directing the disbursement on the Closing Date of the proceeds of the
Loans made on such date.




     (j) The Lenders shall have received all documentation and other information required by
bank regulatory authorities under applicable “know-your-customer” and anti-money laundering
rules and regulations, including the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act (Title III of Pub. L.
107-56 (signed into law October 26, 2001) the “PATRIOT Act”).




     (k) Administrative Agent shall have received a fully executed and delivered Funding
Notice.




     (l) As of such Credit Date, the representations and warranties contained herein and in
the other Credit Documents shall be true and correct in all material respects on and as of
that Credit Date to the same extent as though made on and as of that date, except to the
extent such representations and warranties specifically relate to an earlier date, in which
case such representations and warranties shall have been true and correct in all material
respects on and as of such earlier date; provided that, in each case, such
materiality qualifier shall not be applicable to any representations and warranties that
already are qualified or modified by materiality in the text thereof; and




     (m) As of such Credit Date, no event shall have occurred and be continuing or would
result from the consummation of the applicable Credit Extension that would constitute an
Event of Default or a Default.




     (n) On or prior to the Closing Date, Borrower shall have paid (i) all fees and expenses
required to be paid to the Administrative Agent and the Lenders, as set forth in the fee
letter, dated as of the Closing Date, between the Administrative Agent and the Borrower and
(ii) the fees and disbursements of Cahill Gordon & Reindel LLP, as counsel to the
Administrative Agent.



          (o) Notices. Any Notice shall be executed by an Authorized Officer in a writing
delivered to Administrative Agent. In lieu of delivering a Notice, Borrower may give
Administrative Agent telephonic notice by the required time of any proposed borrowing or
conversion/continuation; provided each such notice shall be promptly confirmed in writing by
delivery of the applicable Notice to Administrative Agent on or before the close of business on the
date that the telephonic notice is given. In the event of a discrepancy between the telephone
notice and the written Notice, the written Notice shall govern. In the case of any Notice that is
irrevocable once given, if Borrower provides telephonic notice in lieu thereof, such telephone
notice shall also be irrevocable once given. Neither Administrative Agent nor any Lender shall
incur any liability to Borrower in acting upon any telephonic notice referred to above that
Administrative Agent believes in good faith to have been given by a duly authorized officer or
other person authorized on behalf of Borrower or for otherwise acting in good faith.





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          SECTION 4. REPRESENTATIONS AND WARRANTIES




          In order to induce Lenders to enter into this Agreement and to make each Credit Extension to
be made thereby, each Credit Party represents and warrants to each Lender, on the Closing Date,
that the following statements are true and correct:




          4.1. Organization; Requisite Power and Authority; Qualification.
Each of Borrower and its Subsidiaries (a) is duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization, (b) has all requisite power and
authority to own and operate its properties, to carry on its business as now conducted and as
proposed to be conducted, to enter into the Credit Documents to which it is a party and to carry
out the transactions contemplated thereby, and (c) is qualified to do business and in good standing
in every jurisdiction where its assets are located and wherever necessary to carry out its business
and operations, except in jurisdictions where the failure to be so qualified or in good standing
has not had, and could not be reasonably expected to have, a Material Adverse Effect.




          4.2. Equity Interests and Ownership. The Equity Interests of each of Borrower and its
Subsidiaries has been duly authorized and validly issued and is fully paid and non-assessable.
Except (i) options and warrants disclosed in the most recently filed 10-Q and (ii) options and
warrants issued to employees under compensation plans approved by the Board of Directors of the
Borrower, as of the date hereof, there is no existing option, warrant, call, right, commitment or
other agreement to which Borrower or any of its Subsidiaries is a party requiring, and there is no
membership interest or other Equity Interests of Borrower or any of its Subsidiaries outstanding
which upon conversion or exchange would require, the issuance by Borrower or any of its
Subsidiaries of any additional membership interests or other Equity Interests of Borrower or any of
its Subsidiaries or other Securities convertible into, exchangeable for or evidencing the right to
subscribe for or purchase, a membership interest or other Equity Interests of Borrower or any of
its Subsidiaries.




          4.3. Due Authorization. The execution, delivery and performance of the Credit Documents have
been duly authorized by all necessary action on the part of each Credit Party that is a party
thereto.




          4.4. No Conflict. The execution, delivery and performance by Credit Parties of the Credit
Documents to which they are parties and the consummation of the transactions contemplated by the
Credit Documents do not and will not (a) violate (i) any provision of any law or any governmental
rule or regulation applicable to Borrower or any of its Subsidiaries, (ii) any of the
Organizational Documents of Borrower or any of its Subsidiaries, or (iii) any order, judgment or
decree of any court or other agency of government binding on Borrower or any of its Subsidiaries;
(b) conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a
default under any Contractual Obligation of Borrower or any of its Subsidiaries except to the
extent such conflict, breach or default could not reasonably be expected to have a Material Adverse
Effect; (c) result in or require the creation or imposition of any Lien upon any of the properties
or assets of Borrower or any of its Subsidiaries (other than any Liens created under any of the
Credit Documents in favor of Collateral Agent, on behalf of the Secured Parties); or (d) require
any approval of stockholders, members or partners or any approval or consent of any Person under
any Contractual Obligation of Borrower or any of its Subsidiaries, except for such





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approvals or
consents which will be obtained on or before the Closing Date and disclosed in writing to Lenders
and except for any such approvals or consents the failure of which to obtain will not have a
Material Adverse Effect.




          4.5. Governmental Consents. The execution, delivery and performance by Credit Parties of the
Credit Documents to which they are parties and the consummation of the transactions contemplated by
the Credit Documents do not and will not require any registration with, consent or approval of, or
notice to, or other action to, with or by, any Governmental Authority except for filings and
recordings with respect to the Collateral to be made, or otherwise delivered to Collateral Agent
for filing and/or recordation, as of the Closing Date.




          4.6. Binding Obligation. Each Credit Document has been duly executed and delivered by each
Credit Party that is a party thereto and is the legally valid and binding obligation of such Credit
Party, enforceable against such Credit Party in accordance with its respective terms, except as may
be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or
limiting creditors’ rights generally or by equitable principles relating to enforceability.




          4.7. Historical Financial Statements. The Historical Financial Statements were prepared in
conformity with GAAP and fairly present, in all material respects, the financial position, on a
consolidated basis, of the Persons described in such financial statements as at the respective
dates thereof and the results of operations and cash flows, on a consolidated basis, of the
entities described therein for each of the periods then ended, subject, in the case of any such
unaudited financial statements, to changes resulting from audit and normal year-end adjustments.
As of the Closing Date, neither Borrower nor any of its Subsidiaries has any contingent liability
or liability for taxes, long-term lease or unusual forward or long-term commitment that is not
reflected in the Historical Financial Statements or the notes thereto and which in any such case is
material in relation to the business, operations, properties, assets, condition (financial or
otherwise) or prospects of Borrower and any of its Subsidiaries taken as a whole.




          4.8. [Reserved]




          4.9. No Material Adverse Change. Since December 31, 2009, no event, circumstance or change
has occurred that has caused or evidences, either in any case or in the aggregate, a Material
Adverse Effect.




          4.10. No Restricted Junior Payments. Since March 31, 2010, neither Borrower nor any of its
Subsidiaries has directly or indirectly declared, ordered, paid or made, or set apart any sum or
property for, any Restricted Junior Payment or as set forth on Schedule 4.10.




          4.11. Adverse Proceedings, Etc. There are no Adverse Proceedings, individually or in the aggregate, that could reasonably be
expected to have a Material Adverse Effect. Neither Borrower nor any of its Subsidiaries (a) is in
violation of any applicable laws (including Environmental Laws) that, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect, or (b) is subject to or
in default with respect to any final judgments, writs, injunctions, decrees, rules or regulations
of any court or any federal, state, municipal or other governmental department, commission, board,
bureau, agency or instrumentality, domestic




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or foreign, that, individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect.




          4.12. Payment of Taxes. Except as otherwise permitted under Section 5.3, all material tax
returns and reports of Borrower and its Subsidiaries required to be filed by any of them have been
timely filed, and all taxes shown on such tax returns to be due and payable and all assessments,
fees and other governmental charges upon Borrower and its Subsidiaries and upon their respective
properties, assets, income, businesses and franchises which are due and payable have been paid when
due and payable. Borrower knows of no proposed tax assessment against Borrower or any of its
Subsidiaries which is not being actively contested by Borrower or such Subsidiary in good faith and
by appropriate proceedings; provided, such reserves or other appropriate provisions, if
any, as shall be required in conformity with GAAP shall have been made or provided therefor.




          4.13. Properties. Each of Borrower and its Subsidiaries has (i) good, sufficient and legal
title to (in the case of fee interests in real property), (ii) valid leasehold interests in (in the
case of leasehold interests in real or personal property), (iii) valid licensed rights in (in the
case of licensed interests in intellectual property) and (iv) good title to (in the case of all
other personal property), all of their respective properties and assets reflected in their
respective Historical Financial Statements referred to in Section 4.7 and in the most recent
financial statements delivered pursuant to Section 5.1, in each case except for assets disposed of
since the date of such financial statements in the ordinary course of business or as otherwise
permitted under Section 6.8. Except as permitted by this Agreement, all such properties and assets
are free and clear of Liens.




          4.14. Environmental Matters. Neither Borrower nor any of its Subsidiaries nor any of their
respective Facilities or operations are subject to any outstanding written order, consent decree or
settlement agreement with any Person relating to any Environmental Law, any Environmental Claim, or
any Hazardous Materials Activity that, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect. Neither Borrower nor any of its Subsidiaries has
received any letter or request for information under Section 104 of the Comprehensive Environmental
Response, Compensation, and Liability Act (42 U.S.C. § 9604) or any comparable state law. There
are and, to each of Borrower’s and its Subsidiaries’ knowledge, have been, no conditions,
occurrences, or Hazardous Materials Activities which could reasonably be expected to form the basis
of an Environmental Claim against Borrower or any of its Subsidiaries that, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect. Neither Borrower nor
any of its Subsidiaries nor, to any Credit Party’s knowledge, any predecessor of Borrower or
any of its Subsidiaries has filed any notice under any Environmental Law indicating past or
present treatment of Hazardous Materials at any Facility, and none of Borrower’s or any of its
Subsidiaries’ operations involves the generation, transportation, treatment, storage or disposal of
hazardous waste, as defined under 40 C.F.R. Parts 260-270 or any state equivalent. Compliance with
all current or reasonably foreseeable future requirements pursuant to or under Environmental Laws
could not be reasonably expected to have, individually or in the aggregate, a Material Adverse
Effect. No event or condition has occurred or is occurring with respect to Borrower or any of its
Subsidiaries relating to any Environmental Law, any Release of Hazardous Materials, or any
Hazardous Materials Activity which individually or in the aggregate has had, or could reasonably be
expected to have, a Material Adverse Effect.





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          4.15. No Defaults. Neither Borrower nor any of its Subsidiaries is in default in the
performance, observance or fulfillment of any of the obligations, covenants or conditions contained
in any of its Contractual Obligations, and no condition exists which, with the giving of notice or
the lapse of time or both, could constitute such a default, except where the consequences, direct
or indirect, of such default or defaults, if any, could not reasonably be expected to have a
Material Adverse Effect.




          4.16. [Reserved]




          4.17. Governmental Regulation. Neither Borrower nor any of its Subsidiaries is subject to
regulation under the Federal Power Act or the Investment Company Act of 1940 or under any other
federal or state statute or regulation which may limit its ability to incur Indebtedness or which
may otherwise render all or any portion of the Obligations unenforceable. Neither Borrower nor any
of its Subsidiaries is a “registered investment company” or a company “controlled” by a “registered
investment company” or a “principal underwriter” of a “registered investment company” as such terms
are defined in the Investment Company Act of 1940.




          4.18. Margin Stock. Neither Borrower nor any of its Subsidiaries owns any Margin Stock.




          4.19. Employee Matters. Neither Borrower nor any of its Subsidiaries is engaged in any unfair
labor practice that could reasonably be expected to have a Material Adverse Effect. There is (a)
no unfair labor practice complaint pending against Borrower or any of its Subsidiaries, or to the
best knowledge of Borrower, threatened against any of them before the National Labor Relations
Board and no grievance or arbitration proceeding arising out of or under any collective bargaining
agreement that is so pending against Borrower or any of its Subsidiaries or to the best knowledge
of Borrower, threatened against any of them, (b) no strike or work stoppage in existence or
threatened involving Borrower or any of its Subsidiaries, and (c) to the best knowledge of
Borrower, no union representation question existing with respect to the employees of Borrower or
any of its Subsidiaries and, to the best knowledge of Borrower, no union organization activity
that is taking place, except (with respect to any matter specified in clause (a), (b) or (c)
above, either individually or in the aggregate) such as is not reasonably likely to have a Material
Adverse Effect.




          4.20. Employee Benefit Plans. Borrower, each of its Subsidiaries and each of their respective
ERISA Affiliates are in compliance in all material respects with all applicable provisions and
requirements of ERISA and the Internal Revenue Code and the regulations and published
interpretations thereunder with respect to each Employee Benefit Plan, and have performed all their
obligations under each Employee Benefit Plan. Each Employee Benefit Plan which is intended to
qualify under Section 401(a) of the Internal Revenue Code has received a favorable determination
letter from the Internal Revenue Service indicating that such Employee Benefit Plan is so qualified
and nothing has occurred subsequent to the issuance of such determination letter which would cause
such Employee Benefit Plan to lose its qualified status. No liability to the PBGC (other than
required premium payments), the Internal Revenue Service, any Employee Benefit Plan or any trust
established under Title IV of ERISA has been or is expected to be incurred by Borrower, any of its
Subsidiaries or any of their ERISA Affiliates. No ERISA Event has occurred or is reasonably
expected to occur. Except to the extent required under Section




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4980B of the Internal Revenue Code
or similar state laws, no Employee Benefit Plan provides health or welfare benefits (through the
purchase of insurance or otherwise) for any retired or former employee of Borrower, any of its
Subsidiaries or any of their respective ERISA Affiliates. The present value of the aggregate
benefit liabilities under each Pension Plan sponsored, maintained or contributed to by Borrower,
any of its Subsidiaries or any of their ERISA Affiliates (determined as of the end of the most
recent plan year on the basis of the actuarial assumptions specified for funding purposes in the
most recent actuarial valuation for such Pension Plan), did not exceed the aggregate current value
of the assets of such Pension Plan. As of the most recent valuation date for each Multiemployer
Plan for which the actuarial report is available, the potential liability of Borrower, its
Subsidiaries and their respective ERISA Affiliates for a complete withdrawal from such
Multiemployer Plan (within the meaning of Section 4203 of ERISA), when aggregated with such
potential liability for a complete withdrawal from all Multiemployer Plans, based on information
available pursuant to Section 4221(e) of ERISA is zero. Borrower, each of its Subsidiaries and each
of their ERISA Affiliates have complied with the requirements of Section 515 of ERISA with respect
to each Multiemployer Plan and are not in material “default” (as defined in Section 4219(c)(5) of
ERISA) with respect to payments to a Multiemployer Plan.




          4.21. Solvency. Each Credit Party is and, upon the incurrence of any Obligation by any Credit
Party on any date on which this representation and warranty is made, will be, Solvent.




          4.22. Compliance with Statutes, Etc. Each of Borrower and its Subsidiaries is in compliance
with all applicable statutes, regulations and orders of, and all applicable restrictions imposed
by, all Governmental Authorities, in respect of the conduct of its business and the ownership of
its property (including compliance with all applicable Environmental Laws with respect to any Real
Estate Asset or
governing its business and the requirements of any permits issued under such Environmental
Laws with respect to any such Real Estate Asset or the operations of Borrower or any of its
Subsidiaries), except such non-compliance that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.




          4.23. Disclosure. No representation or warranty of any Credit Party contained in any Credit
Document or in any other documents, certificates or written statements furnished to any Agent or
Lender by or on behalf of Borrower or any of its Subsidiaries for use in connection with the
transactions contemplated hereby contains any untrue statement of a material fact or omits to state
a material fact (known to Borrower, in the case of any document not furnished by either of them)
necessary in order to make the statements contained herein or therein not misleading in light of
the circumstances in which the same were made. Any projections and pro forma financial information
contained in such materials are based upon good faith estimates and assumptions believed by
Borrower to be reasonable at the time made, it being recognized by Lenders that such projections as
to future events are not to be viewed as facts and that actual results during the period or periods
covered by any such projections may differ from the projected results. There are no facts known
(or which should upon the reasonable exercise of diligence be known) to Borrower (other than
matters of a general economic nature) that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect and that have not been disclosed herein or in such
other documents, certificates and statements furnished to Lenders for use in connection with the
transactions contemplated hereby.




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          4.24. [Reserved]




          4.25. PATRIOT Act. To the extent applicable, each Credit Party is in compliance, in all
material respects, with (i) the Trading with the Enemy Act, as amended, and each of the foreign
assets control regulations of the Untied States Treasury Department (31 CFR, Subtitle B, Chapter V,
as amended) and any other enabling legislation or executive order relating thereto, and (ii) the
PATRIOT Act. No part of the proceeds of the Loans will be used, directly or indirectly, for any
payments to any governmental official or employee, political party, official of a political party,
candidate for political office, or anyone else acting in an official capacity, in order to obtain,
retain or direct business or obtain any improper advantage, in violation of the United States
Foreign Corrupt Practices Act of 1977, as amended.




          SECTION 5. AFFIRMATIVE COVENANTS




          Each Credit Party covenants and agrees that until payment in full of all Obligations, each
Credit Party shall perform, and shall cause each of its Subsidiaries to perform, all covenants in
this Section 5.




          5.1. Financial Statements and Other Reports. Borrower will deliver to Administrative Agent and Lenders:





     (a) Monthly Reports. Upon the request of the Administrative Agent, within 30
days after the end of each month ending after the Closing Date, commencing with the month in
which the Closing Date occurs, the consolidated balance sheet of Borrower and its
Subsidiaries as at the end of such month and the related consolidated statements of income,
stockholders’ equity and cash flows of Borrower and its Subsidiaries for such month and for
the period from the beginning of the then current Fiscal Year to the end of such month,
setting forth in each case in comparative form the corresponding figures for the
corresponding periods of the previous Fiscal Year in reasonable detail, together with a
Financial Officer Certification and a Narrative Report with respect thereto;




     (b) Quarterly Financial Statements. As soon as available, and in any event
within 45 days after the end of each Fiscal Quarter of each Fiscal Year, commencing with the
Fiscal Quarter in which the Closing Date occurs, the consolidated and consolidating balance
sheets of Borrower and its Subsidiaries as at the end of such Fiscal Quarter and the related
consolidated (and with respect to statements of income, consolidating) statements of income,
stockholders’ equity and cash flows of Borrower and its Subsidiaries for such Fiscal Quarter
and for the period from the beginning of the then current Fiscal Year to the end of such
Fiscal Quarter, setting forth in each case in comparative form the corresponding figures for
the corresponding periods of the previous Fiscal Year in reasonable detail, together with a
Financial Officer Certification and a Narrative Report with respect thereto; provided that,
so long as the Borrower is subject to the periodic reporting requirements of the the U.S.
Securities Exchange Act of 1934, as amended (the “Exchange Act”), delivery to the
Administrative Agent and Lenders of the Borrower’s quarterly report on Form 10-Q that
complies with all applicable requirements shall be deemed to satisfy the requirements of
this Section 5.1(b);



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     (c) Compliance Certificate. Together with each delivery of financial
statements of Borrower and its Subsidiaries pursuant to Section 5.1(b), a duly executed and
completed Compliance Certificate;




     (d) Statements of Reconciliation after Change in Accounting Principles. If, as
a result of any change in accounting principles and policies from those used in the
preparation of the Historical Financial Statements, the consolidated financial statements of
Borrower and its Subsidiaries delivered pursuant to Section 5.1(b) will differ in any
material respect from the consolidated financial statements that would have been delivered
pursuant to such subdivisions had no such change in accounting principles and policies been
made, then, together with the first delivery of such financial statements after such change,
one or more statements of reconciliation for all such prior financial statements in form and
substance satisfactory to Administrative Agent;




     (e) Notice of Default. Promptly upon any officer of Borrower obtaining
knowledge (i) of any condition or event that constitutes a Default or an Event of Default or
that notice has been given to Borrower with respect thereto; (ii) that any Person has given
any notice to Borrower or any of its Subsidiaries or taken any other action with respect to
any event or condition set forth in Section 8.1(b); or (iii) of the occurrence of any
event or change that has caused or evidences, either in any case or in the aggregate, a
Material Adverse Effect, a certificate of an Authorized Officer specifying the nature and
period of existence of such condition, event or change, or specifying the notice given and
action taken by any such Person and the nature of such claimed Event of Default, Default,
default, event or condition, and what action Borrower has taken, is taking and proposes to
take with respect thereto;




     (f) Notice of Litigation. Promptly upon any officer of Borrower obtaining
knowledge of (i) any Adverse Proceeding not previously disclosed in writing by Borrower to
Lenders, or (ii) any development in any Adverse Proceeding that, in the case of either
clause (i) or (ii), if adversely determined could be reasonably expected to have a Material
Adverse Effect, or seeks to enjoin or otherwise prevent the consummation of, or to recover
any damages or obtain relief as a result of, the transactions contemplated hereby, written
notice thereof together with such other information as may be reasonably available to
Borrower to enable Lenders and their counsel to evaluate such matters;




     (g) ERISA. (i) Promptly upon becoming aware of the occurrence of or
forthcoming occurrence of any ERISA Event, a written notice specifying the nature thereof,
what action Borrower, any of its Subsidiaries or any of their respective ERISA Affiliates
has taken, is taking or proposes to take with respect thereto and, when known, any action
taken or threatened by the Internal Revenue Service, the Department of Labor or the PBGC
with respect thereto; and (ii) with reasonable promptness, copies of (1) each Schedule B
(Actuarial Information) to the annual report (Form 5500 Series) filed by Borrower, any of
its Subsidiaries or any of their respective ERISA Affiliates with the Internal Revenue
Service with respect to each Pension Plan; (2) all notices received by Borrower, any of its
Subsidiaries or any of their respective ERISA Affiliates from a Multiemployer Plan sponsor
concerning an ERISA Event; and (3) copies of such other documents or



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governmental reports or
filings relating to any Employee Benefit Plan as Administrative Agent shall reasonably
request;




     (h) Information Regarding Collateral. Borrower will furnish to Collateral
Agent prompt written notice of any change (i) in any Credit Party’s corporate name, (ii) in
any Credit Party’s identity or corporate structure, (iii) in any Credit Party’s jurisdiction
of organization or (iv) in any Credit Party’s Federal Taxpayer Identification Number or
state organizational identification number. 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 Collateral Agent to
continue at all times following such change to have a valid, legal and perfected security
interest in all the Collateral as contemplated in the Collateral Documents. Borrower also
agrees promptly to notify Collateral Agent if any material portion of the Collateral is
damaged or destroyed;




     (i) Other Information. (A) Promptly upon their becoming available, copies of
(i) all financial statements, reports, notices and proxy statements sent or made available
generally by Borrower to its security holders acting in such capacity or by any Subsidiary
of Borrower to its security holders other than Borrower or another Subsidiary of Borrower,
(ii) all regular and periodic reports and all registration statements and prospectuses, if any, filed by Borrower or any of its Subsidiaries with any securities
exchange or with the Securities and Exchange Commission or any governmental or private
regulatory authority, (iii) all press releases and other statements made available generally
by Borrower or any of its Subsidiaries to the public concerning material developments in the
business of Borrower or any of its Subsidiaries, and (B) such other information and data
with respect to Borrower or any of its Subsidiaries as from time to time may be reasonably
requested by Administrative Agent or Lender; and




     (j) Certification of Public Information. Borrower and Lender acknowledge that
certain of the Lenders may be Public Lenders and, if documents or notices required to be
delivered pursuant to this Section 5.1 or otherwise are being distributed through
IntraLinks/IntraAgency, SyndTrak or another relevant website or other information platform
(the “Platform”), any document or notice that Borrower has indicated contains Non-Public
Information shall not be posted on that portion of the Platform designated for such Public
Lenders. Borrower agrees to clearly designate all information provided to Administrative
Agent by or on behalf of Borrower which is suitable to make available to Public Lenders. If
Borrower has not indicated whether a document or notice delivered pursuant to this Section
5.1 contains Non-Public Information, Administrative Agent reserves the right to post such
document or notice solely on that portion of the Platform designated for Lenders who wish to
receive material non-public information with respect to Borrower, its Subsidiaries and their
securities.



          5.2. Existence. Except as otherwise permitted under Section 6.8, each Credit Party will, and
will cause each of its Subsidiaries to, at all times preserve and keep in full force and effect its
existence and all rights and franchises, licenses and permits material to its business;
provided, no Credit Party (other than Borrower with respect to existence) or any of its
Subsidiaries shall be required to preserve any such existence, right or franchise, licenses and
permits if




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such Person’s board of directors (or similar governing body) shall determine that the
preservation thereof is no longer desirable in the conduct of the business of such Person, and that
the loss thereof is not disadvantageous in any material respect to such Person or to Lenders.




          5.3. Payment of Taxes and Claims. Each Credit Party will, and will cause each of its
Subsidiaries to, pay all Taxes imposed upon it or any of its properties or assets or in respect of
any of its income, businesses or franchises before any penalty or fine accrues thereon, and all
claims (including claims for labor, services, materials and supplies) for sums that have become due
and payable and that by law have or may become a Lien upon any of its properties or assets, prior
to the time when any penalty or fine shall be incurred with respect thereto; provided, no
such Tax or claim need be paid if it is being contested in good faith by appropriate proceedings
promptly instituted and diligently conducted, so long as (a) adequate reserve or other appropriate
provision, as shall be required in conformity with GAAP shall have been made therefor, and (b) in
the case of a Tax or claim which has or may become a Lien against any of the Collateral, such
contest proceedings conclusively operate to stay the sale of any portion of the Collateral to
satisfy such Tax or claim. No
Credit Party will, nor will it permit any of its Subsidiaries to, file or consent to the
filing of any consolidated income tax return with any Person (other than Borrower or any of its
Subsidiaries).




          5.4. Maintenance of Properties. Each Credit Party will, and will cause each of its
Subsidiaries to, maintain or cause to be maintained in good repair, working order and condition,
ordinary wear and tear excepted, all material properties used or useful in the business of Borrower
and its Subsidiaries and from time to time will make or cause to be made all appropriate repairs,
renewals and replacements thereof.




          5.5. Insurance. Borrower will maintain or cause to be maintained, with financially sound and
reputable insurers, such public liability insurance, property damage insurance, and business
interruption insurance with respect to liabilities, losses or damage in respect of the assets,
properties and businesses of Borrower and its Subsidiaries as may customarily be carried or
maintained under similar circumstances by Persons of established reputation engaged in similar
businesses, in each case in such amounts (giving effect to self-insurance), with such deductibles,
covering such risks and otherwise on such terms and conditions as shall be customary for such
Persons. Without limiting the generality of the foregoing, Borrower will maintain or cause to be
maintained (a) flood insurance with respect to each Flood Hazard Property that is located in a
community that participates in the National Flood Insurance Program, in each case in compliance
with any applicable regulations of the Board of Governors of the Federal Reserve System, and (b)
replacement value property damage insurance on the Collateral under such policies of insurance,
with such insurance companies, in such amounts, with such deductibles, and covering such risks as
are at all times carried or maintained under similar circumstances by Persons of established
reputation engaged in similar businesses.




          5.6. Books and Records; Inspections. Each Credit Party will, and will cause each of its
Subsidiaries to, keep proper books of record and accounts in which full, true and correct entries
in conformity in all material respects with GAAP shall be made of all dealings and transactions in
relation to its business and activities. Each Credit Party will, and will cause each of its
Subsidiaries to, permit any authorized representatives designated by any Lender to visit and
inspect any of the properties of any Credit Party and any of its respective Subsidiaries, to
inspect,




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copy and take extracts from its and their financial and accounting records, and to discuss
its and their affairs, finances and accounts with its and their officers and independent public
accountants, all upon reasonable notice and at such reasonable times during normal business hours
and as often as may reasonably be requested.




          5.7. [Reserved]




          5.8. Compliance with Laws. Each Credit Party will comply, and shall cause each of its Subsidiaries and all other
Persons, if any, on or occupying any Facilities to comply, with the requirements of all applicable
laws, rules, regulations and orders of any Governmental Authority (including all Environmental
Laws), noncompliance with which could reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect.




          5.9. Environmental.




          (a) Environmental Disclosure. Borrower will deliver to Administrative Agent and
Lenders:





     (i) as soon as practicable following receipt thereof, copies of all environmental
audits, investigations, analyses and reports of any kind or character, whether prepared by
personnel of Borrower or any of its Subsidiaries or by independent consultants, governmental
authorities or any other Persons, with respect to significant environmental matters at any
Facility or with respect to any Environmental Claims;




     (ii) promptly upon the occurrence thereof, written notice describing in reasonable
detail (1) any Release required to be reported to any federal, state or local governmental
or regulatory agency under any applicable Environmental Laws, (2) any remedial action taken
by Borrower or any other Person in response to (A) any Hazardous Materials Activities the
existence of which has a reasonable possibility of resulting in one or more Environmental
Claims having, individually or in the aggregate, a Material Adverse Effect, or (B) any
Environmental Claims that, individually or in the aggregate, have a reasonable possibility
of resulting in a Material Adverse Effect, and (3) Borrower’s discovery of any occurrence or
condition on any real property adjoining or in the vicinity of any Facility that could cause
such Facility or any part thereof to be subject to any material restrictions on the
ownership, occupancy, transferability or use thereof under any Environmental Laws;




     (iii) as soon as practicable following the sending or receipt thereof by Borrower or
any of its Subsidiaries, a copy of any and all written communications with respect to (1)
any Environmental Claims that, individually or in the aggregate, have a reasonable
possibility of giving rise to a Material Adverse Effect, (2) any Release required to be
reported to any federal, state or local governmental or regulatory agency, and (3) any
request for information from any governmental agency that suggests such agency is
investigating whether Borrower or any of its Subsidiaries may be potentially responsible for
any Hazardous Materials Activity;




     (iv) prompt written notice describing in reasonable detail (1) any proposed acquisition
of stock, assets, or property by Borrower or any of its Subsidiaries that could



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reasonably
be expected to (A) expose Borrower or any of its Subsidiaries to, or result in,
Environmental Claims that could reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect or (B) affect the ability of Borrower or any of its
Subsidiaries to maintain in full force and effect all material Governmental Authorizations
required under any Environmental Laws for their respective operations and (2) any
proposed action to be taken by Borrower or any of its Subsidiaries to modify current
operations in a manner that could reasonably be expected to subject Borrower or any of its
Subsidiaries to any additional material obligations or requirements under any Environmental
Laws; and




     (v) with reasonable promptness, such other documents and information as from time to
time may be reasonably requested by Administrative Agent in relation to any matters
disclosed pursuant to this Section 5.9(a).



          (b) Hazardous Materials Activities, Etc. Each Credit Party shall promptly take, and
shall cause each of its Subsidiaries promptly to take, any and all actions necessary to (i) cure
any violation of applicable Environmental Laws by such Credit Party or its Subsidiaries that could
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, and
(ii) make an appropriate response to any Environmental Claim against such Credit Party or any of
its Subsidiaries and discharge any obligations it may have to any Person thereunder where failure
to do so could reasonably be expected to have, individually or in the aggregate, a Material Adverse
Effect.




          5.10. Subsidiaries. In the event that any Person becomes a Domestic Subsidiary of Borrower
and such person is required to become a guarantor of the Existing Notes, or otherwise becomes a
guarantor of the Existing Notes, Borrower shall (a) promptly cause such Domestic Subsidiary to
become a Guarantor hereunder and a Grantor under the Pledge and Security Agreement by executing and
delivering to Administrative Agent and Collateral Agent a Counterpart Agreement, and (b) take all
such actions and execute and deliver, or cause to be executed and delivered, all such documents,
instruments, agreements, and certificates as are similar to those described in Sections 3.1(b),
3.1(d) and 3.1(e). With respect to each such Subsidiary, Borrower shall promptly send to
Administrative Agent written notice setting forth with respect to such Person the date on which
such Person became a Subsidiary of Borrower.




          5.11. Post-Closing Matters. Within 30 days following the Closing Date, unless extended or
waiver by the Administrative Agent in its sole discretion:




          (a) Collateral Agent shall have received a certificate from Borrower’s insurance broker or
other evidence satisfactory to it that all insurance required to be maintained pursuant to Section
5.5 is in full force and effect, together with endorsements naming Collateral Agent, for the
benefit of Secured Parties, as additional insured and loss payee thereunder to the extent required
under Section 5.5.




          5.12. Further Assurances. At any time or from time to time upon the request of Administrative
Agent, each Credit Party will, at its expense, promptly execute, acknowledge and deliver such
further documents and do such other acts and things as Administrative Agent or Collateral Agent may
reasonably request in order to effect fully the purposes of the Credit





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Documents. In
furtherance and not in limitation of the foregoing, each Credit Party shall take such actions as
Administrative Agent or Collateral Agent may reasonably request from time to time to ensure that
the Obligations are guarantied by the Guarantors and are secured by substantially all of the assets
of Borrower and its Subsidiaries (subject to limitations contained in the Credit Documents with
respect to Foreign Subsidiaries).




          SECTION 6. NEGATIVE COVENANTS




          Each Credit Party covenants and agrees that until payment in full of all Obligations, such
Credit Party shall perform, and shall cause each of its Subsidiaries to perform, all covenants in
this Section 6.




          6.1. Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries to,
directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly
or indirectly liable with respect to any Indebtedness, except:





     (a) the Obligations;




     (b) Indebtedness of any Subsidiary to Borrower or to any other Subsidiary, or of
Borrower to any Subsidiary; provided, (i) all such Indebtedness incurred after the
Closing Date shall be subordinated in right of payment to the payment in full of the
Obligations, (ii) any such Indebtedness owed to a Subsidiary that is not a Guarantor shall
be unsecured and (iii) such Indebtedness is permitted as an Investment under Section 6.6(d);




     (c) Indebtedness which may be deemed to exist pursuant to any guaranties, performance,
surety, statutory, appeal or similar obligations incurred in the ordinary course of
business;




     (d) Indebtedness in respect of netting services, overdraft protections and otherwise in
connection with deposit accounts;




     (e) guaranties in the ordinary course of business of the obligations of suppliers,
customers, franchisees and licensees of Borrower and its Subsidiaries;




     (f) guaranties by Borrower of Indebtedness of a Guarantor or guaranties by a Guarantor
of Indebtedness of Borrower or another Guarantor with respect, in each case, to Indebtedness
otherwise permitted to be incurred pursuant to this Section 6.1; provided, that if
the Indebtedness that is being guarantied is unsecured and/or subordinated to the
Obligations, the guaranty shall also be unsecured and/or subordinated to the Obligations;




     (g) Indebtedness described in Schedule 6.1, but not any extensions, renewals or
replacements of such Indebtedness except renewals and extensions expressly provided for in
the agreements evidencing any such Indebtedness as the same are in effect on the date of
this Agreement; provided, such Indebtedness permitted under the immediately
preceding clause above shall not (A) include Indebtedness of an obligor that was not an
obligor with respect to the Indebtedness being extended or renewed, (B) exceed in a
principal amount the Indebtedness being renewed or extended or (C) be incurred, created or



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assumed if any Default or Event of Default has occurred and is continuing or would result
therefrom;




     (h) Indebtedness of Borrower or its Subsidiaries with respect to Capital Leases and
purchase money Indebtedness in an aggregate amount not to exceed at any time $5.0 million;




     (i) Indebtedness payable or assumed in connection with the acquisition of Princeton
Pharma Holdings LLC, including any milestone or similar payments in connection therewith;
provided that Indebtedness incurred to finance any such payments shall not be permitted
under this clause (i);




     (j) Indebtedness representing the deferred purchase price of property or services,
including earn-out obligations, incurred in connection with the acquisition of equity or
assets permitted or consented to hereunder;




     (k) (i) Indebtedness under any Hedge Agreement that is permitted to be secured in
accordance with Section 6.2(n) hereof and (ii) Indebtedness arising under any
Currency Agreement or Interest Rate Agreement in effect on the date hereof, including any
extensions thereof and such increases, if any, as shall result when the underlying
obligations of such agreements are marked to market or increased to address accrued interest
on the intercompany obligation relating to such agreement; and




     (l) other Indebtedness of Borrower and its Subsidiaries in an aggregate amount not to
exceed at any time $5.0 million.



          6.2. Liens. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly
or indirectly, create, incur, assume or permit to exist any Lien on or with respect to any property
or asset of any kind (including any document or instrument in respect of goods or accounts
receivable) of Borrower or any of its Subsidiaries, whether now owned or hereafter acquired or
licensed, or any income, profits or royalties therefrom, or file or permit the filing of, or permit
to remain in effect, any financing statement or other similar notice of any Lien with respect to
any such property, asset, income, profits or royalties under the UCC of any State or under any
similar recording or notice statute or under any applicable intellectual property laws, rules or
procedures, except:





     (a) Liens in favor of Collateral Agent for the benefit of Secured Parties granted
pursuant to any Credit Document;




     (b) Liens for Taxes if obligations with respect to such Taxes are being contested in
good faith by appropriate proceedings promptly instituted and diligently conducted;




     (c) statutory Liens of landlords, banks (and rights of set-off), of carriers,
warehousemen, mechanics, repairmen, workmen and materialmen, and other Liens imposed by law
(other than any such Lien imposed pursuant to Section 430(k) of the Internal Revenue Code or
ERISA or a violation of Section 436 of the Internal Revenue Code), in each case incurred in
the ordinary course of business (i) for amounts not yet overdue or



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(ii) for amounts that are
overdue and that (in the case of any such amounts overdue for a period in excess of five
days) are being contested in good faith by appropriate proceedings, so long as such reserves
or other appropriate provisions, if any, as shall be required by GAAP shall have been made
for any such contested amounts;




     (d) Liens incurred in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other types of social security, or to secure the
performance of tenders, statutory obligations, surety and appeal bonds, bids, leases,
government contracts, trade contracts, performance and return-of-money bonds and other
similar obligations (exclusive of obligations for the payment of borrowed money or other
Indebtedness), so long as no foreclosure, sale or similar proceedings have been commenced
with respect to any portion of the Collateral on account thereof;




     (e) easements, rights-of-way, restrictions, encroachments, and other minor defects or
irregularities in title, in each case which do not and will not interfere in any material
respect with the ordinary conduct of the business of Borrower or any of its Subsidiaries;




     (f) any interest or title of a lessor or sublessor under any lease of real estate
permitted hereunder;




     (g) Liens solely on any cash earnest money deposits made by Borrower or any of its
Subsidiaries in connection with any letter of intent or purchase agreement permitted
hereunder;




     (h) purported Liens evidenced by the filing of precautionary UCC financing statements
relating solely to operating leases of personal property entered into in the ordinary course
of business;




     (i) Liens in favor of customs and revenue authorities arising as a matter of law to
secure payment of customs duties in connection with the importation of goods;




     (j) any zoning or similar law or right reserved to or vested in any governmental office
or agency to control or regulate the use of any real property;




     (k) non-exclusive outbound licenses of patents, copyrights, trademarks and other
intellectual property rights granted by Borrower or any of its Subsidiaries in the ordinary
course of business and not interfering in any respect with the ordinary conduct of or
materially detracting from the value of the business of Borrower or such Subsidiary;




     (l) Liens described in Schedule 6.2;




     (m) Liens securing Indebtedness permitted pursuant to Section 6.1(h); provided,
any such Lien shall encumber only the asset acquired with the proceeds of such Indebtedness;
and






      
(n)	Liens securing any Hedge Agreement with a Lender Counterparty; and




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     (o) Liens securing up to $2.5 million aggregate principal amount of Indebtedness
permitted by Section 6.1(i).



          6.3. No Further Negative Pledges. Except with respect to (a) specific property encumbered to
secure payment of particular Indebtedness or to be sold pursuant to an executed agreement with
respect to a permitted Asset Sale and (b) restrictions by reason of customary provisions
restricting assignments, subletting or other transfers contained in leases, licenses and similar
agreements entered into in the ordinary course of business (provided that such restrictions are
limited to the property or assets secured by such Liens or the property or assets subject to such
leases, licenses or similar agreements, as the case may be), no Credit Party nor any of its
Subsidiaries shall enter into any agreement prohibiting the creation or assumption of any Lien upon
any of its properties or assets, whether now owned or hereafter acquired, to secure the
Obligations.




          6.4. Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its
Subsidiaries or Affiliates through any manner or means or through any other Person to, directly or
indirectly, declare, order, pay, make or set apart, or agree to declare, order, pay, make or set
apart, any sum for any Restricted Junior Payment except that (a) any Subsidiary of Borrower may
declare and pay dividends or make other distributions ratably to its equity holders; (b) Borrower
may make regularly scheduled payments of interest in respect of the Existing Notes in accordance
with the terms of, and only to the extent required by, and subject to any subordination provisions
contained in, the indenture or other agreement pursuant to which such Indebtedness was issued; and
(c) so long as no Default or Event of Default shall have occurred and be continuing or shall be
caused thereby, Borrower may pay or make other Restricted Junior Payments in an aggregate amount of
$25.0 million.




          6.5. Restrictions on Subsidiary Distributions. Except as provided herein, no Credit Party
shall, nor shall it permit any of its Subsidiaries to, create or otherwise cause or suffer to exist
or become effective any consensual encumbrance or restriction of any kind on the ability of any
Subsidiary of Borrower to (a) pay dividends or make any other distributions on any of such
Subsidiary’s Equity Interests owned by Borrower or any other Subsidiary of Borrower, (b) repay or
prepay any Indebtedness owed by such Subsidiary to Borrower or any other Subsidiary of Borrower,
(c) make loans or advances to Borrower or any other Subsidiary of Borrower, or (d) transfer, lease
or license any of its property or assets to Borrower or any other Subsidiary of Borrower other than
restrictions (i) in agreements evidencing Indebtedness permitted by Section 6.1(h) that impose
restrictions on the property so acquired, (ii) by reason of customary provisions restricting
assignments, subletting or other transfers contained in leases, licenses, joint venture agreements
and similar agreements entered into in the ordinary course of business or (iii) that are or were
created by virtue of any transfer of, agreement to transfer or option or right with respect to any
property, assets or Equity Interests not otherwise prohibited under this Agreement.




          6.6. Investments. No Credit Party shall, nor shall it permit any of its Subsidiaries to,
directly or indirectly, make or own any Investment in any Person, including any Joint Venture,
except:





     (a) Investments in Cash and Cash Equivalents;



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     (b) equity Investments owned as of the Closing Date in any Subsidiary and Investments
made after the Closing Date in Borrower and any wholly-owned Guarantor of Borrower;




     (c) Investments (i) in any Securities received in satisfaction or partial satisfaction
thereof from financially troubled account debtors and (ii) deposits, prepayments and other
credits to suppliers made in the ordinary course of business consistent with the past
practices of Borrower and its Subsidiaries;




     (d) intercompany loans to the extent permitted under Section 6.1(b) and other
Investments in Subsidiaries which are not wholly-owned Guarantors, provided that
such Investments in Subsidiaries other than wholly-owned Guarantor Subsidiaries of Borrower
made after the Closing Date shall not exceed at any time an aggregate amount $15.0 million;




     (e) Consolidated Capital Expenditures with respect to Borrower and the Guarantors;




     (f) loans and advances to employees of Borrower and its Subsidiaries made in the
ordinary course of business in an aggregate principal amount not to exceed $1.5 million;




     (g) Investments described in Schedule 6.6(a); and




     (h) other Investments in an aggregate amount not to exceed $25.0 million during the
term of this Agreement.



          Notwithstanding the foregoing, in no event shall any Credit Party make any Investment which
results in or facilitates in any manner any Restricted Junior payment not otherwise permitted under
the terms of Section 6.4.




          6.7. Financial Covenants.




          (a) Leverage Ratio. Borrower shall not permit the Leverage Ratio as of the last day
of any Fiscal Quarter to exceed 3.5 to 1.0.




          6.8. Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor
shall it permit any of its Subsidiaries to, enter into any transaction of merger or consolidation,
or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey,
sell, lease or license, exchange, transfer or otherwise dispose of, in one transaction or a series
of transactions, all or any part of its business, assets or property of any kind whatsoever,
whether real, personal or mixed and whether tangible or intangible, whether now owned or hereafter
acquired, leased or licensed, or acquire by purchase or otherwise (other than purchases or other
acquisitions of inventory, materials and equipment and Capital Expenditures in the ordinary course
of business) the business, property or fixed assets of, or stock or other evidence of beneficial
ownership of, any Person or any division or line of business or other business unit of any Person,
except:







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     (a) any Subsidiary of Borrower may be merged with or into Borrower or any Guarantor, or
be liquidated, wound up or dissolved, or all or any part of its business, property or assets
may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a
series of transactions, to Borrower or any Guarantor; provided, in the case of such
a merger, Borrower or such Guarantor, as applicable shall be the continuing or surviving
Person;




     (b) sales or other dispositions of assets that do not constitute Asset Sales;




     (c) Asset Sales; provided (1) the consideration received for such assets shall
be in an amount at least equal to the fair market value thereof (determined in good faith by
the board of directors of Borrower (or similar governing body)), (2) no less than 75%
thereof shall be paid in Cash, and (3) the Net Asset Sale Proceeds thereof shall be applied
as required by Section 2.14(a);




     (d) Asset Sales described in Schedule 6.8 hereto, but only to the extent the Net Asset
Sale Proceeds thereof do not exceed $10.0 million in the aggregate;




     (e) disposals of obsolete, worn out or surplus property;




     (f) the acquisition of Princeton Pharma Holdings LLC on or around the Closing Date and
Asset Sales related to Princeton Pharma Holdings LLC in an amount not to exceed $10.0
million in the aggregate; and




     (g) Investments made in accordance with Section 6.6.



          6.9. Disposal of Subsidiary Interests. Except for any sale of all of its interests in the
Equity Interests of any of its Subsidiaries in compliance with the provisions of Section 6.8, no
Credit Party shall, nor shall it permit any of its Subsidiaries to, (a) directly or indirectly
sell, assign, pledge or otherwise encumber or dispose of any Equity Interests of any of its
Subsidiaries, except to qualify directors if required by applicable law; or (b) permit any of its
Subsidiaries directly or indirectly to sell, assign, pledge or otherwise encumber or dispose of any
Equity Interests of any of its Subsidiaries, except to another Credit Party (subject to the
restrictions on such disposition otherwise imposed hereunder), or to qualify directors if required
by applicable law.




          6.10. Sales and Lease-Backs. No Credit Party shall, nor shall it permit any of its
Subsidiaries to, directly or indirectly, become or remain liable as lessee or as a guarantor or
other surety with respect to any lease of any property (whether real, personal or mixed), whether
now owned or hereafter acquired, which such Credit Party (a) has sold or transferred or is to sell
or to transfer to any other Person (other than Borrower or any of its Subsidiaries), or (b) intends
to use for substantially the same purpose as any other property which has been or is to be sold or
transferred by such Credit Party to any Person (other than Borrower or any of its Subsidiaries) in
connection with such lease.




          6.11. Transactions with Shareholders and Affiliates. No Credit Party shall, nor shall it
permit any of its Subsidiaries to, directly or indirectly, enter into or permit to exist any
transaction (including the purchase, sale, lease or exchange of any property or the rendering






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of any service) with any Affiliate of Borrower on terms that are less favorable to Borrower or
that Subsidiary, as the case may be, than those that might be obtained at the time from a Person
who is not such a holder or Affiliate; provided, the foregoing restriction shall not apply
to (a) any transaction between Borrower and any Guarantor; (b) reasonable and customary fees paid
to members of the board of directors (or similar governing body) of Borrower and its Subsidiaries;
and (c) compensation arrangements for officers and other employees of Borrower and its Subsidiaries
entered into in the ordinary course of business.




          6.12. Conduct of Business. From and after the Closing Date, no Credit Party shall, nor shall
it permit any of its Subsidiaries to, engage in any business other than (i) the businesses engaged
in by such Credit Party on the Closing Date and similar or related businesses and (ii) such other
lines of business as may be consented to by Requisite Lenders.




          SECTION 7. GUARANTY




          7.1. Guaranty of the Obligations. Subject to the provisions of Section 7.2, Guarantors
jointly and severally hereby irrevocably and unconditionally guaranty to Administrative Agent for
the ratable benefit of the Beneficiaries the due and punctual payment in full of all Obligations
when the same shall become due, whether at stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise (including amounts that would become due but for the operation of
the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. § 362(a)) (collectively,
the “Guaranteed Obligations”).




          7.2. Contribution by Guarantors. All Guarantors desire to allocate among themselves
(collectively, the “Contributing Guarantors”), in a fair and equitable manner, their obligations
arising under this Guaranty. Accordingly, in the event any payment or distribution is made on any
date by a Guarantor (a “Funding Guarantor”) under this Guaranty such that its Aggregate Payments
exceeds its Fair Share as of such date, such Funding Guarantor shall be entitled to a contribution
from each of the other Contributing Guarantors in an amount sufficient to cause each Contributing
Guarantor’s Aggregate Payments to equal its Fair Share as of such date. “Fair Share” means, with
respect to a Contributing Guarantor as of any date of determination, an amount equal to (a) the
ratio of (i) the Fair Share Contribution Amount with respect to such Contributing Guarantor to (ii)
the aggregate of the Fair Share Contribution Amounts with respect to all Contributing Guarantors
multiplied by (b) the aggregate amount paid or distributed on or before such date by all Funding
Guarantors under this Guaranty in respect of the obligations Guaranteed. “Fair Share Contribution
Amount” means, with respect to a Contributing Guarantor as of any date of determination, the
maximum aggregate amount of the obligations of such Contributing Guarantor under this Guaranty that
would not render its obligations hereunder or thereunder subject to avoidance as a fraudulent
transfer or conveyance under Section 548 of Title 11 of the United States Code or any comparable
applicable provisions of state law; provided, solely for purposes of calculating the “Fair
Share Contribution Amount” with respect to any Contributing Guarantor for purposes of this Section
7.2, any assets or liabilities of such Contributing Guarantor arising by virtue of any rights to
subrogation, reimbursement or indemnification or any rights to or obligations of contribution
hereunder shall not be considered as assets or liabilities of such Contributing Guarantor.
“Aggregate Payments” means, with respect to a Contributing Guarantor as of any date of
determination, an amount equal to (1) the aggregate amount of all payments and distributions made
on or before such date by such Contributing Guarantor in






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respect of this Guaranty (including in respect of this Section 7.2), minus (2) the aggregate
amount of all payments received on or before such date by such Contributing Guarantor from the
other Contributing Guarantors as contributions under this Section 7.2. The amounts payable as
contributions hereunder shall be determined as of the date on which the related payment or
distribution is made by the applicable Funding Guarantor. The allocation among Contributing
Guarantors of their obligations as set forth in this Section 7.2 shall not be construed in any way
to limit the liability of any Contributing Guarantor hereunder. Each Guarantor is a third party
beneficiary to the contribution agreement set forth in this Section 7.2.




          7.3. Payment by Guarantors. Subject to Section 7.2, Guarantors hereby jointly and severally
agree, in furtherance of the foregoing and not in limitation of any other right which any
Beneficiary may have at law or in equity against any Guarantor by virtue hereof, that upon the
failure of Borrower to pay any of the Guaranteed Obligations when and as the same shall become due,
whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise
(including amounts that would become due but for the operation of the automatic stay under Section
362(a) of the Bankruptcy Code, 11 U.S.C. § 362(a)), Guarantors will upon demand pay, or cause to
be paid, in Cash, to Administrative Agent for the ratable benefit of Beneficiaries, an amount equal
to the sum of the unpaid principal amount of all Guaranteed Obligations then due as aforesaid,
accrued and unpaid interest on such Guaranteed Obligations (including interest which, but for
Borrower’s becoming the subject of a case under the Bankruptcy Code, would have accrued on such
Guaranteed Obligations, whether or not a claim is allowed against Borrower for such interest in the
related bankruptcy case) and all other Guaranteed Obligations then owed to Beneficiaries as
aforesaid.




          7.4. Liability of Guarantors Absolute. Each Guarantor agrees that its obligations hereunder
are irrevocable, absolute, independent and unconditional and shall not be affected by any
circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than
payment in full of the Guaranteed Obligations. In furtherance of the foregoing and without
limiting the generality thereof, each Guarantor agrees as follows:





     (a) this Guaranty is a guaranty of payment when due and not of collectability. This
Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;




     (b) Administrative Agent may enforce this Guaranty upon the occurrence of an Event of
Default notwithstanding the existence of any dispute between Borrower and any Beneficiary
with respect to the existence of such Event of Default;




     (c) the obligations of each Guarantor hereunder are independent of the obligations of
Borrower and the obligations of any other guarantor (including any other Guarantor) of the
obligations of Borrower, and a separate action or actions may be brought and prosecuted
against such Guarantor whether or not any action is brought against Borrower or any of such
other guarantors and whether or not Borrower is joined in any such action or actions;




     (d) payment by any Guarantor of a portion, but not all, of the Guaranteed Obligations
shall in no way limit, affect, modify or abridge any Guarantor’s liability for any



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portion of the Guaranteed Obligations which has not been paid. Without limiting the
generality of the foregoing, if Administrative Agent is awarded a judgment in any suit
brought to enforce any Guarantor’s covenant to pay a portion of the Guaranteed Obligations,
such judgment shall not be deemed to release such Guarantor from its covenant to pay the
portion of the Guaranteed Obligations that is not the subject of such suit, and such
judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify
or abridge any other Guarantor’s liability hereunder in respect of the Guaranteed
Obligations;




     (e) any Beneficiary, upon such terms as it deems appropriate, without notice or demand
and without affecting the validity or enforceability hereof or giving rise to any reduction,
limitation, impairment, discharge or termination of any Guarantor’s liability hereunder,
from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or
otherwise change the time, place, manner or terms of payment of the Guaranteed Obligations;
(ii) settle, compromise, release or discharge, or accept or refuse any offer of performance
with respect to, or substitutions for, the Guaranteed Obligations or any agreement relating
thereto and/or subordinate the payment of the same to the payment of any other obligations;
(iii) request and accept other guaranties of the Guaranteed Obligations and take and hold
security for the payment hereof or the Guaranteed Obligations; (iv) release, surrender,
exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with
or without consideration, any security for payment of the Guaranteed Obligations, any other
guaranties of the Guaranteed Obligations, or any other obligation of any Person (including
any other Guarantor) with respect to the Guaranteed Obligations; (v) enforce and apply any
security now or hereafter held by or for the benefit of such Beneficiary in respect hereof
or the Guaranteed Obligations and direct the order or manner of sale thereof, or exercise
any other right or remedy that such Beneficiary may have against any such security, in each
case as such Beneficiary in its discretion may determine consistent herewith or the
applicable Hedge Agreement and any applicable security agreement, including foreclosure on
any such security pursuant to one or more judicial or nonjudicial sales, whether or not
every aspect of any such sale is commercially reasonable, and even though such action
operates to impair or extinguish any right of reimbursement or subrogation or other right or
remedy of any Guarantor against Borrower or any security for the Guaranteed Obligations; and
(vi) exercise any other rights available to it under the Credit Documents or any Hedge
Agreements; and




     (f) this Guaranty and the obligations of Guarantors hereunder shall be valid and
enforceable and shall not be subject to any reduction, limitation, impairment, discharge or
termination for any reason (other than payment in full of the Guaranteed Obligations),
including the occurrence of any of the following, whether or not any Guarantor shall have
had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or
agreement or election not to assert or enforce, or the stay or enjoining, by order of court,
by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or
any right, power or remedy (whether arising under the Credit Documents or any Hedge
Agreements, at law, in equity or otherwise) with respect to the Guaranteed Obligations or
any agreement relating thereto, or with respect to any other guaranty of or security for the
payment of the Guaranteed Obligations; (ii) any rescission, waiver, amendment or
modification of, or any consent to departure from, any of the terms



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or provisions (including provisions relating to events of default) hereof, any of the
other Credit Documents, any of the Hedge Agreements or any agreement or instrument executed
pursuant thereto, or of any other guaranty or security for the Guaranteed Obligations, in
each case whether or not in accordance with the terms hereof or such Credit Document, such
Hedge Agreement or any agreement relating to such other guaranty or security; (iii) the
Guaranteed Obligations, or any agreement relating thereto, at any time being found to be
illegal, invalid or unenforceable in any respect; (iv) the application of payments received
from any source (other than payments received pursuant to the other Credit Documents or any
of the Hedge Agreements or from the proceeds of any security for the Guaranteed Obligations,
except to the extent such security also serves as collateral for indebtedness other than the
Guaranteed Obligations) to the payment of indebtedness other than the Guaranteed
Obligations, even though any Beneficiary might have elected to apply such payment to any
part or all of the Guaranteed Obligations; (v) any Beneficiary’s consent to the change,
reorganization or termination of the corporate structure or existence of Borrower or any of
its Subsidiaries and to any corresponding restructuring of the Guaranteed Obligations; (vi)
any failure to perfect or continue perfection of a security interest in any collateral which
secures any of the Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims
which Borrower may allege or assert against any Beneficiary in respect of the Guaranteed
Obligations, including failure of consideration, breach of warranty, payment, statute of
frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act
or thing or omission, or delay to do any other act or thing, which may or might in any
manner or to any extent vary the risk of any Guarantor as an obligor in respect of the
Guaranteed Obligations.



          7.5. Waivers by Guarantors. Each Guarantor hereby waives, for the benefit of Beneficiaries:
(a) any right to require any Beneficiary, as a condition of payment or performance by such
Guarantor, to (i) proceed against Borrower, any other guarantor (including any other Guarantor) of
the Guaranteed Obligations or any other Person, (ii) proceed against or exhaust any security held
from Borrower, any such other guarantor or any other Person, (iii) proceed against or have resort
to any balance of any Deposit Account or credit on the books of any Beneficiary in favor of
Borrower or any other Person, or (iv) pursue any other remedy in the power of any Beneficiary
whatsoever; (b) any defense arising by reason of the incapacity, lack of authority or any
disability or other defense of Borrower or any other Guarantor including any defense based on or
arising out of the lack of validity or the unenforceability of the Guaranteed Obligations or any
agreement or instrument relating thereto or by reason of the cessation of the liability of Borrower
or any other Guarantor from any cause other than payment in full of the Guaranteed Obligations; (c)
any defense based upon any statute or rule of law which provides that the obligation of a surety
must be neither larger in amount nor in other respects more burdensome than that of the principal;
(d) any defense based upon any Beneficiary’s errors or omissions in the administration of the
Guaranteed Obligations, except behavior which amounts to bad faith; (e) (i) any principles or
provisions of law, statutory or otherwise, which are or might be in conflict with the terms hereof
and any legal or equitable discharge of such Guarantor’s obligations hereunder, (ii) the benefit of
any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement
hereof, (iii) any rights to set-offs, recoupments and counterclaims, and (iv) promptness, diligence
and any requirement that any Beneficiary protect, secure, perfect or insure any security interest
or lien or any property subject thereto; (f) notices, demands, presentments, protests, notices of
protest, notices of dishonor and notices of any action or inaction,






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including acceptance hereof, notices of default hereunder, the Hedge Agreements or any
agreement or instrument related thereto, notices of any renewal, extension or modification of the
Guaranteed Obligations or any agreement related thereto, notices of any extension of credit to
Borrower and notices of any of the matters referred to in Section 7.4 and any right to consent to
any thereof; and (g) any defenses or benefits that may be derived from or afforded by law which
limit the liability of or exonerate guarantors or sureties, or which may conflict with the terms
hereof.




          7.6. Guarantors’ Rights of Subrogation, Contribution, Etc. Until the Guaranteed Obligations
shall have been indefeasibly paid in full, each Guarantor hereby waives any claim, right or remedy,
direct or indirect, that such Guarantor now has or may hereafter have against Borrower or any other
Guarantor or any of its assets in connection with this Guaranty or the performance by such
Guarantor of its obligations hereunder, in each case whether such claim, right or remedy arises in
equity, under contract, by statute, under common law or otherwise and including (a) any right of
subrogation, reimbursement or indemnification that such Guarantor now has or may hereafter have
against Borrower with respect to the Guaranteed Obligations, (b) any right to enforce, or to
participate in, any claim, right or remedy that any Beneficiary now has or may hereafter have
against Borrower, and (c) any benefit of, and any right to participate in, any collateral or
security now or hereafter held by any Beneficiary. In addition, until the Guaranteed Obligations
shall have been indefeasibly paid in full, each Guarantor shall withhold exercise of any right of
contribution such Guarantor may have against any other guarantor (including any other Guarantor) of
the Guaranteed Obligations, including any such right of contribution as contemplated by Section
7.2. Each Guarantor further agrees that, to the extent the waiver or agreement to withhold the
exercise of its rights of subrogation, reimbursement, indemnification and contribution as set forth
herein is found by a court of competent jurisdiction to be void or voidable for any reason, any
rights of subrogation, reimbursement or indemnification such Guarantor may have against Borrower or
against any collateral or security, and any rights of contribution such Guarantor may have against
any such other guarantor, shall be junior and subordinate to any rights any Beneficiary may have
against Borrower, to all right, title and interest any Beneficiary may have in any such collateral
or security, and to any right any Beneficiary may have against such other guarantor. If any amount
shall be paid to any Guarantor on account of any such subrogation, reimbursement, indemnification
or contribution rights at any time when all Guaranteed Obligations shall not have been finally and
indefeasibly paid in full, such amount shall be held in trust for Administrative Agent on behalf of
Beneficiaries and shall forthwith be paid over to Administrative Agent for the benefit of
Beneficiaries to be credited and applied against the Guaranteed Obligations, whether matured or
unmatured, in accordance with the terms hereof.




          7.7. Subordination of Other Obligations. Any Indebtedness of Borrower or any Guarantor now or
hereafter held by any Guarantor (the “Obligee Guarantor”) is hereby subordinated in right of
payment to the Guaranteed Obligations, and any such Indebtedness collected or received by the
Obligee Guarantor after an Event of Default has occurred and is continuing shall be held in trust
for Administrative Agent on behalf of Beneficiaries and shall forthwith be paid over to
Administrative Agent for the benefit of Beneficiaries to be credited and applied against the
Guaranteed Obligations but without affecting, impairing or limiting in any manner the liability of
the Obligee Guarantor under any other provision hereof.







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          7.8. Continuing Guaranty. This Guaranty is a continuing guaranty and shall remain in effect
until all of the Guaranteed Obligations shall have been paid in full. Each Guarantor hereby
irrevocably waives any right to revoke this Guaranty as to future transactions giving rise to any
Guaranteed Obligations.




          7.9. Authority of Guarantors or Borrower. It is not necessary for any Beneficiary to inquire
into the capacity or powers of any Guarantor or Borrower or the officers, directors or any agents
acting or purporting to act on behalf of any of them.




          7.10. Financial Condition of Borrower. Any Credit Extension may be made to Borrower or
continued from time to time, and any Hedge Agreements may be entered into from time to time, in
each case without notice to or authorization from any Guarantor regardless of the financial or
other condition of Borrower at the time of any such grant or continuation or at the time such Hedge
Agreement is entered into, as the case may be. No Beneficiary shall have any obligation to
disclose or discuss with any Guarantor its assessment, or any Guarantor’s assessment, of the
financial condition of Borrower. Each Guarantor has adequate means to obtain information from
Borrower on a continuing basis concerning the financial condition of Borrower and its ability to
perform its obligations under the Credit Documents and the Hedge Agreements, and each Guarantor
assumes the responsibility for being and keeping informed of the financial condition of Borrower
and of all circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations. Each
Guarantor hereby waives and relinquishes any duty on the part of any Beneficiary to disclose any
matter, fact or thing relating to the business, operations or conditions of Borrower now known or
hereafter known by any Beneficiary.




          7.11. Bankruptcy, Etc.




          (a) So long as any Guaranteed Obligations remain outstanding, no Guarantor shall, without the
prior written consent of Administrative Agent acting pursuant to the instructions of Requisite
Lenders, commence or join with any other Person in commencing any bankruptcy, reorganization or
insolvency case or proceeding of or against Borrower or any other Guarantor. The obligations of
Guarantors hereunder shall not be reduced, limited, impaired, discharged, deferred, suspended or
terminated by any case or proceeding, voluntary or involuntary, involving the bankruptcy,
insolvency, receivership, reorganization, liquidation or arrangement of Borrower or any other
Guarantor or by any defense which Borrower or any other Guarantor may have by reason of the order,
decree or decision of any court or administrative body resulting from any such proceeding.




          (b) Each Guarantor acknowledges and agrees that any interest on any portion of the Guaranteed
Obligations which accrues after the commencement of any case or proceeding referred to in clause
(a) above (or, if interest on any portion of the Guaranteed Obligations ceases to accrue by
operation of law by reason of the commencement of such case or proceeding, such interest as would
have accrued on such portion of the Guaranteed Obligations if such case or proceeding had not been
commenced) shall be included in the Guaranteed Obligations because it is the intention of
Guarantors and Beneficiaries that the Guaranteed Obligations which are guaranteed by Guarantors
pursuant hereto should be determined without regard to any rule of law or order which may relieve
Borrower of any portion of such Guaranteed Obligations. Guarantors will permit any trustee in
bankruptcy, receiver, debtor in possession, assignee for the benefit of






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creditors or similar Person to pay Administrative Agent, or allow the claim of Administrative
Agent in respect of, any such interest accruing after the date on which such case or proceeding is
commenced.




          (c) In the event that all or any portion of the Guaranteed Obligations are paid by Borrower,
the obligations of Guarantors hereunder shall continue and remain in full force and effect or be
reinstated, as the case may be, in the event that all or any part of such payment(s) are rescinded
or recovered directly or indirectly from any Beneficiary as a preference, fraudulent transfer or
otherwise, and any such payments which are so rescinded or recovered shall constitute Guaranteed
Obligations for all purposes hereunder.




          7.12. Discharge of Guaranty Upon Sale of Guarantor. If all of the Equity Interests of any
Guarantor or any of its successors in interest hereunder shall be sold or otherwise disposed of
(including by merger or consolidation) in accordance with the terms and conditions hereof, the
Guaranty of such Guarantor or such successor in interest, as the case may be, hereunder shall
automatically be discharged and released without any further action by any Beneficiary or any other
Person effective as of the time of such Asset Sale.




          SECTION 8. EVENTS OF DEFAULT




          8.1. Events of Default. If any one or more of the following conditions or events shall occur:





     (a) Failure to Make Payments When Due. Failure by Borrower to pay (i) when due
any installment of principal of any Loan, whether at stated maturity, by acceleration, by
notice of voluntary prepayment, by mandatory prepayment or otherwise; or (ii) any interest
on any Loan or any fee or any other amount due hereunder within three Business Days after
the date due; or




     (b) Default in Other Agreements. (i) Failure of any Credit Party or any of
their respective Subsidiaries to pay when due any principal of or interest on or any other
amount, including any payment in settlement, payable in respect of one or more items of
Indebtedness (other than Indebtedness referred to in Section 8.1(a)) in an individual
principal amount (or Net Mark-to-Market Exposure) of $25.0 million or more or with an
aggregate principal amount (or Net Mark-to-Market Exposure) of $25.0 million or more, in
each case beyond the grace period, if any, provided therefor; or (ii) breach or default by
any Credit Party with respect to any other material term of (1) one or more items of
Indebtedness in the individual or aggregate principal amounts (or Net Mark-to-Market
Exposure) referred to in clause (i) above or (2) any loan agreement, mortgage, indenture or
other agreement relating to such item(s) of Indebtedness, in each case beyond the grace
period, if any, provided therefor, if the effect of such breach or default is to cause, or
to permit the holder or holders of that Indebtedness (or a trustee on behalf of such holder
or holders), to cause, that Indebtedness to become or be declared due and payable (or
redeemable) prior to its stated maturity or the stated maturity of any underlying
obligation, as the case may be; or



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     (c) Breach of Certain Covenants. Failure of any Credit Party to perform or
comply with any term or condition contained in Section 2.6, Sections 5.1(a), 5.1(b), 5.1(c),
5.1(d) and 5.1(e), Section 5.2 or Section 6; or




     (d) Breach of Representations, Etc. Any representation, warranty,
certification or other statement made or deemed made by any Credit Party in any Credit
Document or in any statement or certificate at any time given by any Credit Party or any of
its Subsidiaries in writing pursuant hereto or thereto or in connection herewith or
therewith shall be false in any material respect as of the date made or deemed made; or




     (e) Other Defaults Under Credit Documents. Any Credit Party shall default in
the performance of or compliance with any term contained herein or any of the other Credit
Documents, other than any such term referred to in any other Section of this Section 8.1,
and such default shall not have been remedied or waived within thirty days after the earlier
of (i) an officer of such Credit Party becoming aware of such default or (ii) receipt by
Borrower of notice from Administrative Agent or any Lender of such default; or




     (f) Involuntary Bankruptcy; Appointment of Receiver, Etc. (i) A court of
competent jurisdiction shall enter a decree or order for relief in respect of Borrower or
any of its Subsidiaries in an involuntary case under the Bankruptcy Code or under any other
applicable bankruptcy, insolvency or similar law now or hereafter in effect, which decree or
order is not stayed; or any other similar relief shall be granted under any applicable
federal or state law; or (ii) an involuntary case shall be commenced against Borrower or any
of its Subsidiaries under the Bankruptcy Code or under any other applicable bankruptcy,
insolvency or similar law now or hereafter in effect; or a decree or order of a court having
jurisdiction in the premises for the appointment of a receiver, liquidator, sequestrator,
trustee, custodian or other officer having similar powers over Borrower or any of its
Subsidiaries, or over all or a substantial part of its property, shall have been entered; or
there shall have occurred the involuntary appointment of an interim receiver, trustee or
other custodian of Borrower or any of its Subsidiaries for all or a substantial part of its
property; or a warrant of attachment, execution or similar process shall have been issued
against any substantial part of the property of Borrower or any of its Subsidiaries, and any
such event described in this clause (ii) shall continue for sixty days without having been
dismissed, bonded or discharged; or




     (g) Voluntary Bankruptcy; Appointment of Receiver, Etc. (i) Borrower or any of
its Subsidiaries shall have an order for relief entered with respect to it or shall commence
a voluntary case under the Bankruptcy Code or under any other applicable bankruptcy,
insolvency or similar law now or hereafter in effect, or shall consent to the entry of an
order for relief in an involuntary case, or to the conversion of an involuntary case to a
voluntary case, under any such law, or shall consent to the appointment of or taking
possession by a receiver, trustee or other custodian for all or a substantial part of its
property; or Borrower or any of its Subsidiaries shall make any assignment for the benefit
of creditors; or (ii) Borrower or any of its Subsidiaries shall be unable, or shall fail
generally, or shall admit in writing its inability, to pay its debts as such debts become
due; or the board of directors (or similar governing body) of Borrower or any of its Subsidiaries



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(or any committee thereof) shall adopt any resolution or otherwise authorize
any action to approve any of the actions referred to herein or in Section 8.1(f); or




     (h) Judgments and Attachments. Any money judgment, writ or warrant of
attachment or similar process involving (i) in any individual case an amount in excess of
$25.0 million or (ii) in the aggregate at any time an amount in excess of $25.0 million (in
either case to the extent not adequately covered by insurance as to which a solvent and
unaffiliated insurance company has acknowledged coverage) shall be entered or filed against
Borrower or any of its Subsidiaries or any of their respective assets and shall remain
undischarged, unvacated, unbonded or unstayed for a period of sixty days (or in any event
later than five days prior to the date of any proposed sale thereunder); or




     (i) Dissolution. Any order, judgment or decree shall be entered against any
Credit Party decreeing the dissolution or split up of such Credit Party and such order shall
remain undischarged or unstayed for a period in excess of thirty days; or




     (j) Employee Benefit Plans. (i) There shall occur one or more ERISA Events
which individually or in the aggregate results in or might reasonably be expected to result
in liability of Borrower, any of its Subsidiaries or any of their respective ERISA
Affiliates in excess of $25.0 million during the term hereof; or (ii) there exists any fact
or circumstance that reasonably could be expected to result in the imposition of a Lien or
security interest pursuant to Section 430(k) of the Internal Revenue Code or ERISA or a
violation of Section 436 of the Internal Revenue Code; or




     (k) Change of Control. A Change of Control shall occur; or




     (l) Guaranties, Collateral Documents and other Credit Documents. At any time
after the execution and delivery thereof, (i) the Guaranty for any reason, other than the
satisfaction in full of all Obligations, shall cease to be in full force and effect (other
than in accordance with its terms) or shall be declared to be null and void or any Guarantor
shall repudiate its obligations thereunder, (ii) this Agreement or any Collateral Document
ceases to be in full force and effect (other than by reason of a release of Collateral in
accordance with the terms hereof or thereof or the satisfaction in full of the Obligations
in accordance with the terms hereof) or shall be declared null and void, or Collateral Agent
shall not have or shall cease to have a valid and perfected Lien in any Collateral purported
to be covered by the Collateral Documents with the priority required by the relevant
Collateral Document, in each case for any reason other than the failure of Collateral Agent
or any Secured Party to take any action within its control, or (iii) any Credit Party shall
contest the validity or enforceability of any Credit Document in writing or deny in writing
that it has any further liability, including with respect to future advances by Lenders,
under any Credit Document to which it is a party or shall contest the validity or perfection
of any Lien in any Collateral purported to be covered by the Collateral Documents;


THEN, (1) upon the occurrence of any Event of Default described in Section 8.1(f) or 8.1(g),
automatically, and (2) upon the occurrence and during the continuance of any other Event of
Default, at the request of (or with the consent of) Requisite Lenders, upon notice to Borrower by






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Administrative Agent, (A) each of the following shall immediately become due and payable, in each
case without presentment, demand, protest or other requirements of any kind, all of which are
hereby expressly waived by each Credit Party: (I) the unpaid principal amount of and accrued
interest on the Loans, and (II) all other Obligations; and (B) Administrative Agent may cause
Collateral Agent to enforce any and all Liens and security interests created pursuant to Collateral
Documents.




          SECTION 9. AGENTS




          9.1. Appointment of Agents. GSCP is hereby appointed as sole lead Arranger and each Lender
hereby authorizes GSCP to act as Arranger in accordance with the terms hereof and the other Credit
Documents. GSB is hereby appointed Administrative Agent and Collateral Agent hereunder and under
the other Credit Documents and each Lender hereby authorizes GSB to act as Administrative Agent and
Collateral Agent in accordance with the terms hereof and the other Credit Documents. Each Agent
hereby agrees to act in its capacity as such upon the express conditions contained herein and the
other Credit Documents, as applicable. The provisions of this Section 9 are solely for the benefit
of Agents and Lenders and no Credit Party shall have any rights as a third party beneficiary of any
of the provisions thereof. As of the Closing Date, GSCP, in its capacity as Arranger, shall have
no obligations but shall be entitled to all of the benefits of this Section 9. In performing its
functions and duties hereunder, each Agent shall act solely as an agent of Lenders and does not
assume and shall not be deemed to have assumed any obligation towards or relationship of agency or
trust with or for Borrower or any of its Subsidiaries. Agent may resign from such role at any
time, with immediate effect, by giving prior written notice thereof to Administrative Agent and
Borrower.




          9.2. Powers and Duties. Each Lender irrevocably authorizes each Agent to take such action on
such Lender’s behalf and to exercise such powers, rights and remedies hereunder and under the other
Credit Documents as are specifically delegated or granted to such Agent by the terms hereof and
thereof, together with such powers, rights and remedies as are reasonably incidental thereto. Each
Agent shall have only those duties and responsibilities that are expressly specified herein and the
other Credit Documents. Each Agent may exercise such powers, rights and remedies and perform such
duties by or through its agents or employees. No Agent shall have, by reason hereof or any of the
other Credit Documents, a fiduciary relationship in respect of any Lender; and nothing herein or
any of the other Credit Documents, expressed or implied, is intended to or shall be so construed as
to impose upon any Agent any obligations in respect hereof or any of the other Credit Documents
except as expressly set forth herein or therein.




          9.3. General Immunity.




          (a) No Responsibility for Certain Matters. No Agent shall be responsible to any
Lender for the execution, effectiveness, genuineness, validity, enforceability, collectability or
sufficiency hereof or any other Credit Document or for any representations, warranties, recitals or
statements made herein or therein or made in any written or oral statements or in any financial or
other statements, instruments, reports or certificates or any other documents furnished or made by
any Agent to Lenders or by or on behalf of any Credit Party or to any Lender in connection with the
Credit Documents and the transactions contemplated thereby or for the financial






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condition or business affairs of any Credit Party or any other Person liable for the payment
of any Obligations, nor shall any Agent be required to ascertain or inquire as to the performance
or observance of any of the terms, conditions, provisions, covenants or agreements contained in any
of the Credit Documents or as to the use of the proceeds of the Loans or as to the existence or
possible existence of any Event of Default or Default or to make any disclosures with respect to
the foregoing. Anything contained herein to the contrary notwithstanding, Administrative Agent
shall not have any liability arising from confirmations of the amount of outstanding Loans.




          (b) Exculpatory Provisions. No Agent nor any of its officers, partners, directors,
employees or agents shall be liable to Lenders for any action taken or omitted by any Agent under
or in connection with any of the Credit Documents except to the extent caused by such Agent’s gross
negligence or willful misconduct, as determined by a final, non-appealable judgment of a court of
competent jurisdiction. Each Agent shall be entitled to refrain from any act or the taking of any
action (including the failure to take an action) in connection herewith or any of the other Credit
Documents or from the exercise of any power, discretion or authority vested in it hereunder or
thereunder unless and until such Agent shall have received instructions in respect thereof from
Requisite Lenders (or such other Lenders as may be required to give such instructions under Section
10.5) and, upon receipt of such instructions from Requisite Lenders (or such other Lenders, as the
case may be), such Agent shall be entitled to act or (where so instructed) refrain from acting, or
to exercise such power, discretion or authority, in accordance with such instructions. Without
prejudice to the generality of the foregoing, (i) each Agent shall be entitled to rely, and shall
be fully protected in relying, upon any communication, instrument or document believed by it to be
genuine and correct and to have been signed or sent by the proper Person or Persons, and shall be
entitled to rely and shall be protected in relying on opinions and judgments of attorneys (who may
be attorneys for Borrower and its Subsidiaries), accountants, experts and other professional
advisors selected by it; and (ii) no Lender shall have any right of action whatsoever against any
Agent as a result of such Agent acting or (where so instructed) refraining from acting hereunder or
any of the other Credit Documents in accordance with the instructions of Requisite Lenders (or such
other Lenders as may be required to give such instructions under Section 10.5).




          (c) Delegation of Duties. Administrative Agent may perform any and all of its duties
and exercise its rights and powers under this Agreement or under any other Credit Document by or
through any one or more sub-agents appointed by Administrative Agent. Administrative Agent and any
such sub-agent may perform any and all of its duties and exercise its rights and powers by or
through their respective Affiliates. The exculpatory, indemnification and other provisions of this
Section 9.3 and of Section 9.6 shall apply to any the Affiliates of Administrative Agent and shall
apply to their respective activities in connection with the syndication of the credit facilities
provided for herein as well as activities as Administrative Agent. All of the rights, benefits,
and privileges (including the exculpatory and indemnification provisions) of this Section 9.3 and
of Section 9.6 shall apply to any such sub-agent and to the Affiliates of any such sub-agent, and
shall apply to their respective activities as sub-agent as if such sub-agent and Affiliates were
named herein. Notwithstanding anything herein to the contrary, with respect to each sub-agent
appointed by Administrative Agent, (i) such sub-agent shall be a third party beneficiary under this
Agreement with respect to all such rights, benefits and privileges (including exculpatory rights
and rights to indemnification) and shall have all of the rights and benefits of a third party
beneficiary, including an independent right of action to enforce such rights, benefits






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and privileges (including exculpatory rights and rights to indemnification) directly, without
the consent or joinder of any other Person, against any or all of Credit Parties and the Lenders,
(ii) such rights, benefits and privileges (including exculpatory rights and rights to
indemnification) shall not be modified or amended without the consent of such sub-agent, and (iii)
such sub-agent shall only have obligations to Administrative Agent and not to any Credit Party,
Lender or any other Person and no Credit Party, Lender or any other Person shall have any rights,
directly or indirectly, as a third party beneficiary or otherwise, against such sub-agent.




          9.4. Agents Entitled to Act as Lender. The agency hereby created shall in no way impair or
affect any of the rights and powers of, or impose any duties or obligations upon, any Agent in its
individual capacity as a Lender hereunder. With respect to its participation in the Loans, each
Agent shall have the same rights and powers hereunder as any other Lender and may exercise the same
as if it were not performing the duties and functions delegated to it hereunder, and the term
“Lender” shall, unless the context clearly otherwise indicates, include each Agent in its
individual capacity. Any Agent and its Affiliates may accept deposits from, lend money to, own
securities of, and generally engage in any kind of banking, trust, financial advisory or other
business with Borrower or any of its Affiliates as if it were not performing the duties specified
herein, and may accept fees and other consideration from Borrower for services in connection
herewith and otherwise without having to account for the same to Lenders.




          9.5. Lenders Representations, Warranties and Acknowledgment.




          (a) Each Lender represents and warrants that it has made its own independent investigation of
the financial condition and affairs of Borrower and its Subsidiaries in connection with Credit
Extensions hereunder and that it has made and shall continue to make its own appraisal of the
creditworthiness of Borrower and its Subsidiaries. No Agent shall have any duty or responsibility,
either initially or on a continuing basis, to make any such investigation or any such appraisal on
behalf of Lenders or to provide any Lender with any credit or other information with respect
thereto, whether coming into its possession before the making of the Loans or at any time or times
thereafter, and no Agent shall have any responsibility with respect to the accuracy of or the
completeness of any information provided to Lenders.




          (b) Each Lender, by delivering its signature page to this Agreement or an Assignment Agreement
and funding its Loan on the Closing Date, shall be deemed to have acknowledged receipt of, and
consented to and approved, each Credit Document and each other document required to be approved by
any Agent, Requisite Lenders or Lenders, as applicable on the Closing Date.




          9.6. Right to Indemnity. Each Lender, in proportion to its Pro Rata Share, severally agrees
to indemnify each Agent, to the extent that such Agent shall not have been reimbursed by any Credit
Party, for and against any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses (including counsel fees and disbursements) or disbursements of
any kind or nature whatsoever which may be imposed on, incurred by or asserted against such Agent
in exercising its powers, rights and remedies or performing its duties hereunder or under the other
Credit Documents or otherwise in its capacity as such Agent in any way relating to or arising out
of this Agreement or the other Credit Documents; provided, no Lender shall be liable for
any portion of such liabilities, obligations, losses, damages, penalties,






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actions, judgments, suits, costs, expenses or disbursements resulting from such Agent’s gross
negligence or willful misconduct, as determined by a final, non-appealable judgment of a court of
competent jurisdiction. If any indemnity furnished to any Agent for any purpose shall, in the
opinion of such Agent, be insufficient or become impaired, such Agent may call for additional
indemnity and cease, or not commence, to do the acts indemnified against until such additional
indemnity is furnished; provided, in no event shall this sentence require any Lender to
indemnify any Agent against any liability, obligation, loss, damage, penalty, action, judgment,
suit, cost, expense or disbursement in excess of such Lender’s Pro Rata Share thereof; and
provided further, this sentence shall not be deemed to require any Lender to
indemnify any Agent against any liability, obligation, loss, damage, penalty, action, judgment,
suit, cost, expense or disbursement described in the proviso in the immediately preceding sentence.




          9.7. Successor Administrative Agent and Collateral Agent.




          (a) Administrative Agent shall have the right to resign at any time by giving prior written
notice thereof to Lenders and Borrower and Administrative Agent may be removed at any time with or
without cause by an instrument or concurrent instruments in writing delivered to Borrower and
Administrative Agent and signed by Requisite Lenders. Administrative Agent shall have the right to
appoint a financial institution to act as Administrative Agent and/or Collateral Agent hereunder,
subject to the reasonable satisfaction of Borrower and the Requisite Lenders, and Administrative
Agent’s resignation shall become effective on the earliest of (i) 30 days after delivery of the
notice of resignation, (ii) the acceptance of such successor Administrative Agent by Borrower and
the Requisite Lenders or (iii) such other date, if any, agreed to by the Requisite Lenders. Upon
any such notice of resignation or any such removal, if a successor Administrative Agent has not
already been appointed by the retiring Administrative Agent, Requisite Lenders shall have the
right, upon five Business Days’ notice to Borrower, to appoint a successor Administrative Agent.
If neither Requisite Lenders nor Administrative Agent have appointed a successor Administrative
Agent, Requisite Lenders shall be deemed to have succeeded to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent; provided that, until a
successor Administrative Agent is so appointed by Requisite Lenders or Administrative Agent, any
collateral security held by Administrative Agent in its role as Collateral Agent on behalf of the
Lender under any of the Credit Documents shall continue to be held by the retiring Collateral Agent
as nominee until such time as a successor Collateral Agent is appointed. Upon the acceptance of
any appointment as Administrative Agent hereunder by a successor Administrative Agent, that
successor Administrative Agent shall thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the retiring or removed Administrative Agent and the retiring or
removed Administrative Agent shall promptly (i) transfer to such successor Administrative Agent all
sums, Securities and other items of Collateral held under the Collateral Documents, together with
all records and other documents necessary or appropriate in connection with the performance of the
duties of the successor Administrative Agent under the Credit Documents, and (ii) execute and
deliver to such successor Administrative Agent such amendments to financing statements, and take
such other actions, as may be necessary or appropriate in connection with the assignment to such
successor Administrative Agent of the security interests created under the Collateral Documents,
whereupon such retiring or removed Administrative Agent shall be discharged from its duties and
obligations hereunder. Except as provided above, any resignation or removal of GSB or its
successor as Administrative Agent pursuant to this Section shall also constitute the resignation or
removal of






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GSB or its successor as Collateral Agent. After any retiring or removed Administrative
Agent’s resignation or removal hereunder as Administrative Agent, the provisions of this Section 9
shall inure to its benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent hereunder. Any successor Administrative Agent appointed pursuant to this
Section shall, upon its acceptance of such appointment, become the successor Collateral Agent for
all purposes hereunder.




          (b) In addition to the foregoing, Collateral Agent may resign at any time by giving prior
written notice thereof to Lenders and the Grantors, and Collateral Agent may be removed at any time
with or without cause by an instrument or concurrent instruments in writing delivered to the
Grantors and Collateral Agent signed by Requisite Lenders. Administrative Agent shall have the
right to appoint a financial institution as Collateral Agent hereunder, subject to the reasonable
satisfaction of Borrower and the Requisite Lenders and Collateral Agent’s resignation shall become
effective on the earliest of (i) 30 days after delivery of the notice of resignation, (ii) the
acceptance of such successor Collateral Agent by Borrower and the Requisite Lenders or (iii) such
other date, if any, agreed to by the Requisite Lenders. Upon any such notice of resignation or any
such removal, Requisite Lenders shall have the right, upon five Business Days’ notice to
Administrative Agent, to appoint a successor Collateral Agent. Until a successor Collateral Agent
is so appointed by Requisite Lenders or Administrative Agent, any collateral security held by
Collateral Agent on behalf of the Lenders under any of the Credit Documents shall continue to be
held by the retiring Collateral Agent as nominee until such time as a successor Collateral Agent is
appointed. Upon the acceptance of any appointment as Collateral Agent hereunder by a successor
Collateral Agent, that successor Collateral Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring or removed Collateral Agent under
this Agreement and the Collateral Documents, and the retiring or removed Collateral Agent under
this Agreement shall promptly (i) transfer to such successor Collateral Agent all sums, Securities
and other items of Collateral held hereunder or under the Collateral Documents, together with all
records and other documents necessary or appropriate in connection with the performance of the
duties of the successor Collateral Agent under this Agreement and the Collateral Documents, and
(ii) execute and deliver to such successor Collateral Agent or otherwise authorize the filing of
such amendments to financing statements, and take such other actions, as may be necessary or
appropriate in connection with the assignment to such successor Collateral Agent of the security
interests created under the Collateral Documents, whereupon such retiring or removed Collateral
Agent shall be discharged from its duties and obligations under this Agreement and the Collateral
Documents. After any retiring or removed Collateral Agent’s resignation or removal hereunder as
the Collateral Agent, the provisions of this Agreement and the Collateral Documents shall inure to
its benefit as to any actions taken or omitted to be taken by it under this Agreement or the
Collateral Documents while it was the Collateral Agent hereunder.




          9.8. Collateral Documents and Guaranty.




          (a) Agents under Collateral Documents and Guaranty. Each Secured Party hereby further
authorizes Administrative Agent or Collateral Agent, as applicable, on behalf of and for the
benefit of Secured Parties, to be the agent for and representative of Secured Parties with respect
to the Guaranty, the Collateral and the Collateral Documents; provided that neither Administrative
Agent nor Collateral Agent shall owe any fiduciary duty, duty of loyalty, duty of






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care, duty of disclosure or any other obligation whatsoever to any holder of Obligations with
respect to any Hedge Agreement. Subject to Section 10.5, without further written consent or
authorization from any Secured Party, Administrative Agent or Collateral Agent, as applicable may
execute any documents or instruments necessary to (i) in connection with a sale or disposition of
assets permitted by this Agreement, release any Lien encumbering any item of Collateral that is the
subject of such sale or other disposition of assets or to which Requisite Lenders (or such other
Lenders as may be required to give such consent under Section 10.5) have otherwise consented or
(ii) release any Guarantor from the Guaranty pursuant to Section 7.12 or with respect to which
Requisite Lenders (or such other Lenders as may be required to give such consent under Section
10.5) have otherwise consented.




          (b) Right to Realize on Collateral and Enforce Guaranty. Anything contained in any of
the Credit Documents to the contrary notwithstanding, Borrower, Administrative Agent, Collateral
Agent and each Secured Party hereby agree that (i) no Secured Party shall have any right
individually to realize upon any of the Collateral or to enforce the Guaranty, it being understood
and agreed that all powers, rights and remedies hereunder may be exercised solely by Administrative
Agent, on behalf of the Secured Parties in accordance with the terms hereof and all powers, rights
and remedies under the Collateral Documents may be exercised solely by Collateral Agent, and (ii)
in the event of a foreclosure by Collateral Agent on any of the Collateral pursuant to a public or
private sale or other disposition, Collateral Agent or any Lender may be the purchaser or licensor
of any or all of such Collateral at any such sale or other disposition and Collateral Agent, as
agent for and representative of Secured Parties (but not any Lender or Lenders in its or their
respective individual capacities unless Requisite Lenders shall otherwise agree in writing) shall
be entitled, for the purpose of bidding and making settlement or payment of the purchase price for
all or any portion of the Collateral sold at any such public sale, to use and apply any of the
Obligations as a credit on account of the purchase price for any collateral payable by Collateral
Agent at such sale or other disposition.




          (c) Rights under Hedge Agreements. No Hedge Agreement will create (or be deemed to
create) in favor of any Lender Counterparty that is a party thereto any rights in connection with
the management or release of any Collateral or of the obligations of any Guarantor under the Credit
Documents except as expressly provided in Section 10.5(c)(v) of this Agreement and Section 9.2 of
the Pledge and Security Agreement. By accepting the benefits of the Collateral, such Lender
Counterparty shall be deemed to have appointed Collateral Agent as its agent and agreed to be bound
by the Credit Documents as a Secured Party, subject to the limitations set forth in this clause
(c).




          (d) Release of Collateral and Guarantees, Termination of Credit Documents.
Notwithstanding anything to the contrary contained herein or any other Credit Document, when all
Obligations (other than obligations in respect of any Hedge Agreement) have been paid in full, upon
request of Borrower, Administrative Agent shall (without notice to, or vote or consent of, any
Lender, or any affiliate of any Lender that is a party to any Hedge Agreement) take such actions as
shall be required to release its security interest in all Collateral, and to release all guarantee
obligations provided for in any Credit Document, whether or not on the date of such release there
may be outstanding Obligations in respect of Hedge Agreements. Any such release of guarantee
obligations shall be deemed subject to the provision that such guarantee obligations shall be
reinstated if after such release any portion of any payment in respect of the Obligations






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guaranteed thereby shall be rescinded or must otherwise be restored or returned upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of Borrower or any Guarantor, or
upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or
similar officer for, Borrower or any Guarantor or any substantial part of its property, or
otherwise, all as though such payment had not been made.




          9.9. Withholding Taxes. To the extent required by any applicable law, Administrative Agent
may withhold from any payment to any Lender an amount equivalent to any applicable withholding tax.
If the Internal Revenue Service or any other Governmental Authority asserts a claim that
Administrative Agent did not properly withhold tax from amounts paid to or for the account of any
Lender because the appropriate form was not delivered or was not properly executed or because such
Lender failed to notify Administrative Agent of a change in circumstance which rendered the
exemption from, or reduction of, withholding tax ineffective or for any other reason, such Lender
shall indemnify Administrative Agent fully for all amounts paid, directly or indirectly, by
Administrative Agent as tax or otherwise, including any penalties or interest and together with all
expenses (including legal expenses, allocated internal costs and out-of-pocket expenses) incurred.




          SECTION 10. MISCELLANEOUS




          10.1. Notices.




          (a) Notices Generally. Any notice or other communication herein required or permitted
to be given to a Credit Party, Collateral Agent or Administrative Agent shall be sent to such
Person’s address as set forth on Appendix B or in the other relevant Credit Document, and in the
case of any Lender, the address as indicated on Appendix B or otherwise indicated to Administrative
Agent in writing. Except as otherwise set forth in Section 3.2(b) or paragraph (b) below, each
notice hereunder shall be in writing and may be personally served or sent by telefacsimile (except
for any notices sent to Administrative Agent) or United States mail or courier service and shall be
deemed to have been given when delivered in person or by courier service and signed for against
receipt thereof, upon receipt of telefacsimile, or three Business Days after depositing it in the
United States mail with postage prepaid and properly addressed; provided, no notice to any
Agent shall be effective until received by such Agent; provided further, any such
notice or other communication shall at the request of Administrative Agent be provided to any
sub-agent appointed pursuant to Section 9.3(c) hereto as designated by Administrative Agent from
time to time.




          (b) Electronic Communications.




          (i) Notices and other communications to Lenders hereunder may be delivered or furnished by
electronic communication (including e-mail and Internet or intranet websites, including the
Platform) pursuant to procedures approved by Administrative Agent, provided that the
foregoing shall not apply to notices to any Lender pursuant to Section 2 if such Lender has
notified Administrative Agent that it is incapable of receiving notices under such Section by
electronic communication. Administrative Agent or Borrower may, in its discretion, agree to accept
notices and other communications to it hereunder by electronic communications pursuant to
procedures approved by it, provided that approval of such procedures may be limited to particular





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notices or communications. Unless Administrative Agent otherwise prescribes, (i)
notices and other communications sent to an e-mail address shall be deemed received upon the
sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt
requested” function, as available, return e-mail or other written acknowledgement),
provided that if such notice or other communication is not sent during the normal business
hours of the recipient, such notice or communication shall be deemed to have been sent at the
opening of business on the next Business Day for the recipient, and (ii) notices or communications
posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the
intended recipient at its e-mail address as described in the foregoing clause (i) of notification
that such notice or communication is available and identifying the website address therefor.




          (ii) Each Credit Party understands that the distribution of material through an electronic
medium is not necessarily secure and that there are confidentiality and other risks associated with
such distribution and agrees and assumes the risks associated with such electronic distribution,
except to the extent caused by the willful misconduct or gross negligence of Administrative Agent,
as determined by a final, non-appealable judgment of a court of competent jurisdiction.




          (iii) The Platform and any Approved Electronic Communications are provided “as is” and “as
available”. None of the Agents nor any of their respective officers, directors, employees, agents,
advisors or representatives (the “Agent Affiliates”) warrant the accuracy, adequacy, or
completeness of the Approved Electronic Communications or the Platform and each expressly disclaims
liability for errors or omissions in the Platform and the Approved Electronic 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 Agent Affiliates in connection with the Platform or the Approved
Electronic Communications.




          (iv) Each Credit Party, each Lender and each Agent agrees that Administrative Agent may, but
shall not be obligated to, store any Approved Electronic Communications on the Platform in
accordance with Administrative Agent’s customary document retention procedures and policies.




          (v) Any notice of Default or Event of Default may be provided by telephone if confirmed
promptly thereafter by delivery of written notice thereof.




          (c) Private Side Information Contacts. 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 information that is not made available through the “Public Side Information” portion
of the Platform and that may contain Non-Public Information with respect to Borrower, its
Subsidiaries or their securities for purposes of United States federal or state securities laws.





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          10.2. Expenses. Whether or not the transactions contemplated hereby shall be consummated,
Borrower agrees to pay promptly (a) all the actual and reasonable costs and expenses incurred in
connection with the negotiation, preparation and execution of the Credit Documents and any
consents, amendments, waivers or other modifications thereto; (b) all the costs of furnishing all
opinions by counsel for Borrower and the other Credit Parties; (c) the reasonable fees, expenses
and disbursements of counsel to Agents (in each case including allocated costs of internal counsel)
in connection with the negotiation, preparation, execution and administration of the Credit
Documents and any consents, amendments, waivers or other modifications thereto and any other
documents or matters requested by Borrower; (d) all the actual costs and reasonable expenses of
creating, perfecting, recording, maintaining and preserving Liens in favor of Collateral Agent, for
the benefit of Secured Parties, including filing and recording fees, expenses and taxes, stamp or
documentary taxes, search fees, title insurance premiums and reasonable fees, expenses and
disbursements of counsel to each Agent and of counsel providing any opinions that any Agent or
Requisite Lenders may request in respect of the Collateral or the Liens created pursuant to the
Collateral Documents; (e) all the actual costs and reasonable fees, expenses and disbursements of
any auditors, accountants, consultants or appraisers; (f) all the actual costs and reasonable
expenses (including the reasonable fees, expenses and disbursements of any appraisers, consultants,
advisors and agents employed or retained by Collateral Agent and its counsel) in connection with
the custody or preservation of any of the Collateral; (g) all other actual and reasonable costs and
expenses incurred by each Agent in connection with the syndication of the Loans and Commitments and
the transactions contemplated by the Credit Documents and any consents, amendments, waivers or
other modifications thereto and (h) after the occurrence of a Default or an Event of Default, all
costs and expenses, including reasonable attorneys’ fees (including allocated costs of internal
counsel) and costs of settlement, incurred by any Agent and Lenders in enforcing any Obligations of
or in collecting any payments due from any Credit Party hereunder or under the other Credit
Documents by reason of such Default or Event of Default (including in connection with the sale,
lease or license of, collection from, or other realization upon any of the Collateral or the
enforcement of the Guaranty) or in connection with any refinancing or restructuring of the credit
arrangements provided hereunder in the nature of a “work-out” or pursuant to any insolvency or
bankruptcy cases or proceedings.




          10.3. Indemnity.




          (a) In addition to the payment of expenses pursuant to Section 10.2, whether or not the
transactions contemplated hereby shall be consummated, each Credit Party agrees to defend (subject
to Indemnitees’ selection of counsel), indemnify, pay and hold harmless, each Agent and Lender and
the officers, partners, members, directors, trustees, advisors, employees, agents, sub-agents and
Affiliates of each Agent and each Lender (each, an “Indemnitee”), from and against any and all
Indemnified Liabilities; provided, no Credit Party shall have any obligation to any
Indemnitee hereunder with respect to any Indemnified Liabilities to the extent such Indemnified
Liabilities arise from the gross negligence or willful misconduct of that Indemnitee, in each case,
as determined by a final, non-appealable judgment of a court of competent jurisdiction. To the
extent that the undertakings to defend, indemnify, pay and hold harmless set forth in this Section
10.3 may be unenforceable in whole or in part because they are violative of any law or public
policy, the applicable Credit Party shall contribute the maximum portion that it is permitted to
pay and satisfy under applicable law to the payment and satisfaction of all Indemnified Liabilities
incurred by Indemnitees or any of them.







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          (b) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit
Party hereby waives, any claim against each Lender, each Agent and their respective Affiliates,
directors, employees, attorneys, agents or sub-agents, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual damages) (whether or
not the claim therefor is based on contract, tort or duty imposed by any applicable legal
requirement) arising out of, in connection with, as a result of, or in any way related to, this
Agreement or any Credit Document or any agreement or instrument contemplated hereby or thereby or
referred to herein or therein, the transactions contemplated hereby or thereby, any Loan or the use
of the proceeds thereof or any act or omission or event occurring in connection therewith, and
Borrower hereby waives, releases and agrees not to sue upon any such claim or any such damages,
whether or not accrued and whether or not known or suspected to exist in its favor.




          10.4. Set-Off. In addition to any rights now or hereafter granted under applicable law and
not by way of limitation of any such rights, upon the occurrence of any Event of Default each
Lender is hereby authorized by each Credit Party at any time or from time to time subject to the
consent of Administrative Agent (such consent not to be unreasonably withheld or delayed), without
notice to any Credit Party or to any other Person (other than Administrative Agent), any such
notice being hereby expressly waived, to set off and to appropriate and to apply any and all
deposits (general or special, including Indebtedness evidenced by certificates of deposit, whether
matured or unmatured, but not including trust accounts) and any other Indebtedness at any time held
or owing by such Lender to or for the credit or the account of any Credit Party against and on
account of the obligations and liabilities of any Credit Party to such Lender hereunder and under
the other Credit Documents, including all claims of any nature or description arising out of or
connected hereto or with any other Credit Document, irrespective of whether or not (a) such Lender
shall have made any demand hereunder or (b) the principal of or the interest on the Loans or any
other amounts due hereunder shall have become due and payable pursuant to Section 2 and although
such obligations and liabilities, or any of them, may be contingent or unmatured.




          10.5. Amendments and Waivers.




          (a) Requisite Lenders’ Consent. Subject to the additional requirements of Sections
10.5(b) and 10.5(c), no amendment, modification, termination or waiver of any provision of the
Credit Documents, or consent to any departure by any Credit Party therefrom, shall in any event be
effective without the written concurrence of Requisite Lenders; provided that Administrative Agent
may, with the consent of Borrower only, amend, modify or supplement this Agreement to cure any
ambiguity, omission, defect or inconsistency, so long as such amendment, modification or supplement
does not adversely affect the rights of any Lender.




          (b) Affected Lenders’ Consent. Without the written consent of each Lender that would
be directly affected thereby, no amendment, modification, termination, or consent shall be
effective if the effect thereof would:





     (i) extend the scheduled final maturity of any Loan;




     (ii) waive, reduce or postpone any scheduled repayment (but not prepayment);



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     (iii) reduce the rate of interest on any Loan (other than any waiver of any increase in
the interest rate applicable to any Loan pursuant to Section 2.10) or any fee or any premium
payable hereunder;




     (iv) extend the time for payment of any such interest or fees;




     (v) reduce the principal amount of any Loan;




     (vi) amend, modify, terminate or waive any provision of this Section 10.5(b), Section
10.5(c) or any other provision of this Agreement that expressly provides that the consent of
all Lenders is required;




     (vii) amend the definition of “Requisite Lenders” or “Pro Rata Share”;




     (viii) release all or substantially all of the Collateral or all or substantially all
of the Guarantors from the Guaranty except as expressly provided in the Credit Documents; or




     (ix) consent to the assignment or transfer by any Credit Party of any of its rights and
obligations under any Credit Document;


provided that, for the avoidance of doubt, all Lenders shall be deemed directly affected
thereby with respect to any amendment described in clauses (vii), (viii), (ix) and (x).




          (c) Other Consents. No amendment, modification, termination or waiver of any
provision of the Credit Documents, or consent to any departure by any Credit Party therefrom,
shall:





     (i) amend, modify or waive this Agreement or the Pledge and Security Agreement so as to
alter the ratable treatment of Obligations arising under the Credit Documents and
Obligations arising under Hedge Agreements or the definition of “Lender Counterparty,”
“Hedge Agreement,” “Obligations,” or “Secured Obligations” (as defined in any applicable
Collateral Document) in each case in a manner adverse to any Lender Counterparty with
Obligations then outstanding without the written consent of any such Lender Counterparty; or




     (ii) amend, modify, terminate or waive any provision of Section 9 as the same applies
to any Agent, or any other provision hereof as the same applies to the rights or obligations
of any Agent, in each case without the consent of such Agent.



          (d) Execution of Amendments, Etc. Administrative Agent may, but shall have no
obligation to, with the concurrence of any Lender, execute amendments, modifications, waivers or
consents on behalf of such Lender. Any waiver or consent shall be effective only in the specific
instance and for the specific purpose for which it was given. No notice to or demand on any Credit
Party in any case shall entitle any Credit Party to any other or further notice or demand in
similar or other circumstances. Any amendment, modification, termination, waiver or consent
effected in accordance with this Section 10.5 shall be binding upon each Lender at the time
outstanding, each future Lender and, if signed by a Credit Party, on such Credit Party.







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          10.6. Successors and Assigns; Participations.




          (a) Generally. This Agreement shall be binding upon the parties hereto and their
respective successors and assigns and shall inure to the benefit of the parties hereto and the
successors and assigns of Lenders. No Credit Party’s rights or obligations hereunder nor any
interest therein may be assigned or delegated by any Credit Party without the prior written consent
of all Lenders. Nothing in this Agreement, expressed or implied, shall be construed to confer upon
any Person (other than the parties hereto, their respective successors and assigns permitted hereby
and, to the extent expressly contemplated hereby, Affiliates of each of the Agents and Lenders) any
legal or equitable right, remedy or claim under or by reason of this Agreement.




          (b) Register. Borrower, Administrative Agent and Lenders shall deem and treat the
Persons listed as Lenders in the Register as the holders and owners of the corresponding
Commitments and Loans listed therein for all purposes hereof, and no assignment or transfer of any
such Commitment or Loan shall be effective, in each case, unless and until recorded in the Register
following receipt of a fully executed Assignment Agreement effecting the assignment or transfer
thereof, together with the required forms and certificates regarding tax matters and any fees
payable in connection with such assignment, in each case, as provided in Section 10.6(d). Each
assignment shall be recorded in the Register promptly following receipt by the Administrative Agent
of the fully executed Assignment Agreement and all other necessary documents and approvals, prompt
notice thereof shall be provided to Borrower and a copy of such Assignment Agreement shall be
maintained, as applicable. The date of such recordation of a transfer shall be referred to herein
as the “Assignment Effective Date.” Any request, authority or consent of any Person who, at the
time of making such request or giving such authority or consent, is listed in the Register as a
Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the
corresponding Commitments or Loans.




          (c) Right to Assign. Each Lender shall have the right at any time to sell, assign or
transfer all or a portion of its rights and obligations under this Agreement, including all or a
portion of its Commitment or Loans owing to it or other Obligations (provided,
however, that pro rata assignments shall not be required and each assignment shall be of a
uniform, and not varying, percentage of all rights and obligations under and in respect of any
applicable Loan and any related Commitments):





     (i) to any Person meeting the criteria of clause (i) of the definition of the term of
“Eligible Assignee” upon the giving of notice to Borrower and Administrative Agent; and




     (ii) to any Person meeting the criteria of clause (ii) of the definition of the term of
“Eligible Assignee” upon giving of notice to Borrower and Administrative Agent;
provided, further each such assignment pursuant to this Section 10.6(c)(ii) shall be
in an aggregate amount of not less than $1,000,000.



          (d) Mechanics. Assignments and assumptions of Loans and Commitments by Lenders shall
be effected by manual execution and delivery to Administrative Agent of an Assignment Agreement.
Assignments made pursuant to the foregoing provision shall be effective as of the Assignment
Effective Date. In connection with all assignments there shall be delivered






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to Administrative Agent such forms, certificates or other evidence, if any, with respect to
United States federal income tax withholding matters as the assignee under such Assignment
Agreement may be required to deliver pursuant to Section 2.20(c), together with payment to the
Administrative Agent of a registration and processing fee of $3,500 (except that no such
registration and processing fee shall be payable (y) in connection with an assignment by or to GSCP
or any Affiliate thereof or (z) in the case of an Assignee which is already a Lender or is an
affiliate or Related Fund of a Lender or a Person under common management with a Lender).




          (e) Representations and Warranties of Assignee. Each Lender, upon execution and
delivery hereof or upon succeeding to an interest in the Commitments and Loans, as the case may be,
represents and warrants as of the Closing Date or as of the Assignment Effective Date that (i) it
is an Eligible Assignee; (ii) it has experience and expertise in the making of or investing in
commitments or loans such as the applicable Commitments or Loans, as the case may be; and (iii) it
will make or invest in, as the case may be, its Commitments or Loans for its own account in the
ordinary course and without a view to distribution of such Commitments or Loans within the meaning
of the Securities Act or the Exchange Act or other federal securities laws (it being understood
that, subject to the provisions of this Section 10.6, the disposition of such Commitments or Loans
or any interests therein shall at all times remain within its exclusive control).




          (f) Effect of Assignment. Subject to the terms and conditions of this Section 10.6,
as of the “Assignment Effective Date” (i) the assignee thereunder shall have the rights and
obligations of a “Lender” hereunder to the extent of its interest in the Loans as reflected in the
Register and shall thereafter be a party hereto and a “Lender” for all purposes hereof; (ii) the
assigning Lender thereunder shall, to the extent that rights and obligations hereunder have been
assigned to the assignee, relinquish its rights (other than any rights which survive the
termination hereof under Section 10.8) and be released from its obligations hereunder (and, in the
case of an assignment covering all or the remaining portion of an assigning Lender’s rights and
obligations hereunder, such Lender shall cease to be a party hereto on the Assignment Effective
Date; provided, anything contained in any of the Credit Documents to the contrary
notwithstanding, such assigning Lender shall continue to be entitled to the benefit of all
indemnities hereunder as specified herein with respect to matters arising out of the prior
involvement of such assigning Lender as a Lender hereunder).




          (g) Participations.




          (i) Each Lender shall have the right at any time to sell one or more participations to any
Person (other than Borrower, any of its Subsidiaries or any of its Affiliates) in all or any part
of its Loans or in any other Obligation.




          (ii) The holder of any such participation, other than an Affiliate of the Lender granting such
participation, shall not be entitled to require such Lender to take or omit to take any action
hereunder except with respect to any amendment, modification or waiver that would (A) extend the
final scheduled maturity of any Loan in which such participant is participating, or reduce the rate
or extend the time of payment of interest or fees thereon (except in connection with a waiver of
applicability of any post-default increase in interest rates) or reduce the principal amount
thereof, or increase the amount of the participant’s participation over the amount






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thereof then in effect (it being understood that a waiver of any Default or Event of shall not
constitute a change in the terms of such participation, and that an increase in any Loan shall be
permitted without the consent of any participant if the participant’s participation is not
increased as a result thereof), (B) consent to the assignment or transfer by any Credit Party of
any of its rights and obligations under this Agreement or (C) release all or substantially all of
the Collateral under the Collateral Documents (except as expressly provided in the Credit
Documents) supporting the Loans hereunder in which such participant is participating.




          (iii) Borrower agrees that each participant shall be entitled to the benefits of Sections
2.18(c), 2.19 and 2.20 to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (c) of this Section; provided, (x) a participant shall not
be entitled to receive any greater payment under Section 2.19 or 2.20 than the applicable Lender
would have been entitled to receive with respect to the participation sold to such participant,
unless the sale of the participation to such participant is made with Borrower’s prior written
consent and (y) a participant that would be a Non-US Lender if it were a Lender shall not be
entitled to the benefits of Section 2.20 unless Borrower is notified of the participation sold to
such participant and such participant agrees, for the benefit of Borrower, to comply with Section
2.20 as though it were a Lender; provided further that, except as specifically set forth in clauses
(x) and (y) of this sentence, nothing herein shall require any notice to Borrower or any other
Person in connection with the sale of any participation. To the extent permitted by law, each
participant also shall be entitled to the benefits of Section 10.4 as though it were a Lender,
provided such Participant agrees to be subject to Section 2.17 as though it were a Lender.




          (h) Certain Other Assignments and Participations. In addition to any other assignment
or participation permitted pursuant to this Section 10.6 any Lender may assign and/or pledge all or
any portion of its Loans, the other Obligations owed by or to such Lender to secure obligations of
such Lender including any Federal Reserve Bank as collateral security pursuant to Regulation A of
the Board of Governors and any operating circular issued by such Federal Reserve Bank;
provided, that no Lender, as between Borrower and such Lender, shall be relieved of any of
its obligations hereunder as a result of any such assignment and pledge, and provided
further, that in no event shall the applicable Federal Reserve Bank, pledgee or trustee, be
considered to be a “Lender” or be entitled to require the assigning Lender to take or omit to take
any action hereunder.




          10.7. Independence of Covenants. All covenants hereunder shall be given independent effect so
that if a particular action or condition is not permitted by any of such covenants, the fact that
it would be permitted by an exception to, or would otherwise be within the limitations of, another
covenant shall not avoid the occurrence of a Default or an Event of Default if such action is taken
or condition exists.




          10.8. Survival of Representations, Warranties and Agreements. All representations, warranties
and agreements made herein shall survive the execution and delivery hereof and the making of any
Credit Extension. Notwithstanding anything herein or implied by law to the contrary, the
agreements of each Credit Party set forth in Sections 2.18(c), 2.19, 2.20, 10.2, 10.3 and 10.4 and
the agreements of Lenders set forth in Sections 2.17, 9.3(b) and 9.6 shall survive the payment of
the Loans, and the termination hereof.







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          10.9. No Waiver; Remedies Cumulative. No failure or delay on the part of any Agent or any
Lender in the exercise of any power, right or privilege hereunder or under any other Credit
Document shall impair such power, right or privilege or be construed to be a waiver of any default
or acquiescence therein, nor shall any single or partial exercise of any such power, right or
privilege preclude other or further exercise thereof or of any other power, right or privilege.
The rights, powers and remedies given to each Agent and each Lender hereby are cumulative and shall
be in addition to and independent of all rights, powers and remedies existing by virtue of any
statute or rule of law or in any of the other Credit Documents or any of the Hedge Agreements. Any
forbearance or failure to exercise, and any delay in exercising, any right, power or remedy
hereunder shall not impair any such right, power or remedy or be construed to be a waiver thereof,
nor shall it preclude the further exercise of any such right, power or remedy.




          10.10. Marshalling; Payments Set Aside. Neither any Agent nor any Lender shall be under any
obligation to marshal any assets in favor of any Credit Party or any other Person or against or in
payment of any or all of the Obligations. To the extent that any Credit Party makes a payment or
payments to Administrative Agent or Lenders (or to Administrative Agent, on behalf of Lenders), or
any Agent or Lenders enforce any security interests or exercise their rights of setoff, and such
payment or payments or the proceeds of such enforcement or setoff or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to
be repaid to a trustee, receiver or any other party under any bankruptcy law, any other state or
federal law, common law or any equitable cause, then, to the extent of such recovery, the
obligation or part thereof originally intended to be satisfied, and all Liens, rights and remedies
therefor or related thereto, shall be revived and continued in full force and effect as if such
payment or payments had not been made or such enforcement or setoff had not occurred.




          10.11. Severability. In case any provision in or obligation hereunder or under any other
Credit Document shall be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or obligations, or of such provision or
obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.




          10.12. Obligations Several; Independent Nature of Lenders’ Rights. The obligations of Lenders
hereunder are several and no Lender shall be responsible for the obligations or Commitment of any
other Lender hereunder. Nothing contained herein or in any other Credit Document, and no action
taken by Lenders pursuant hereto or thereto, shall be deemed to constitute Lenders as a
partnership, an association, a joint venture or any other kind of entity. The amounts payable at
any time hereunder to each Lender shall be a separate and independent debt, and each Lender shall
be entitled to protect and enforce its rights arising out hereof and it shall not be necessary for
any other Lender to be joined as an additional party in any proceeding for such purpose.




          10.13. Headings. Section headings herein are included herein for convenience of reference
only and shall not constitute a part hereof for any other purpose or be given any substantive
effect.




          10.14. APPLICABLE LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE






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LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.




          10.15. CONSENT TO JURISDICTION. SUBJECT TO CLAUSE (E) OF THE FOLLOWING SENTENCE, ALL JUDICIAL
PROCEEDINGS BROUGHT AGAINST ANY PARTY ARISING OUT OF OR RELATING HERETO OR ANY OTHER CREDIT
DOCUMENTS, OR ANY OF THE OBLIGATIONS, SHALL BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION IN THE STATE, COUNTY AND CITY OF NEW YORK. BY EXECUTING AND DELIVERING THIS
AGREEMENT, EACH CREDIT PARTY, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (A)
ACCEPTS GENERALLY AND UNCONDITIONALLY THE EXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS (OTHER
THAN WITH RESPECT TO ACTIONS BY ANY AGENT IN RESPECT OF RIGHTS UNDER ANY SECURITY AGREEMENT
GOVERNED BY A LAWS OTHER THAN THE LAWS OF THE STATE OF NEW YORK OR WITH RESPECT TO ANY COLLATERAL
SUBJECT THERETO); (B) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; (C) AGREES THAT SERVICE OF ALL
PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL,
RETURN RECEIPT REQUESTED, TO THE APPLICABLE CREDIT PARTY AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH
SECTION 10.1; (D) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (C) ABOVE IS SUFFICIENT TO CONFER
PERSONAL JURISDICTION OVER THE APPLICABLE CREDIT PARTY IN ANY SUCH PROCEEDING IN ANY SUCH COURT,
AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; AND (E) AGREES THAT
AGENTS AND LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO
BRING PROCEEDINGS AGAINST ANY CREDIT PARTY IN THE COURTS OF ANY OTHER JURISDICTION IN CONNECTION
WITH THE EXERCISE OF ANY RIGHTS UNDER ANY SECURITY DOCUMENT OR THE ENFORCEMENT OF ANY JUDGMENT.




          10.16. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY AGREES TO WAIVE ITS RESPECTIVE
RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR UNDER ANY
OF THE OTHER CREDIT DOCUMENTS OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS
LOAN TRANSACTION OR THE LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. THE SCOPE OF THIS
WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT
AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING CONTRACT CLAIMS, TORT CLAIMS,
BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO
ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT
EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE
TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH PARTY HERETO FURTHER WARRANTS AND






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REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND
VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A
MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION 10.16 AND EXECUTED BY EACH OF THE
PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS HERETO OR ANY OF THE OTHER CREDIT DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS
RELATING TO THE LOANS MADE HEREUNDER. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A
WRITTEN CONSENT TO A TRIAL BY THE COURT.




          10.17. Confidentiality. Each Agent and each Lender shall hold all non-public information
regarding Borrower and its Subsidiaries and their businesses identified as such by Borrower and
obtained by such Agent or such Lender pursuant to the requirements hereof in accordance with such
Agent’s and such Lender’s customary procedures for handling confidential information of such
nature, it being understood and agreed by Borrower that, in any event, the Administrative Agent may
disclose such information to the Lenders and each Agent and each Lender may make (i) disclosures of
such information to Affiliates of such Lender or Agent and to their respective agents and advisors
(and to other Persons authorized by a Lender or Agent to organize, present or disseminate such
information in connection with disclosures otherwise made in accordance with this Section 10.17),
(ii) disclosures of such information reasonably required by any bona fide or potential assignee,
transferee or participant in connection with the contemplated assignment, transfer or participation
of any Loans or any participations therein or by any direct or indirect contractual counterparties
(or the professional advisors thereto) to any swap or derivative transaction relating to Borrower
and its obligations (provided, such assignees, transferees, participants, counterparties and
advisors are advised of and agree to be bound by either the provisions of this Section 10.17 or
other provisions at least as restrictive as this Section 10.17), (iii) disclosure to any rating
agency when required by it, provided that, prior to any disclosure, such rating agency
shall undertake in writing to preserve the confidentiality of any confidential information relating
to Credit Parties received by it from any Agent or any Lender, (iv) disclosures in connection with
the exercise of any remedies hereunder or under any other Credit Document and (v) disclosures
required or requested by any governmental agency or representative thereof or by the NAIC or
pursuant to legal or judicial process; provided, unless specifically prohibited by
applicable law or court order, each Lender and each Agent shall make reasonable efforts to notify
Borrower of any request by any governmental agency or representative thereof (other than any such
request in connection with any examination of the financial condition or other routine examination
of such Lender by such governmental agency) for disclosure of any such non-public information prior
to disclosure of such information. In addition, each Agent and each Lender may disclose the
existence of this Agreement and the information about this Agreement to market data collectors,
similar services providers to the lending industry, and service providers to the Agents and the
Lenders in connection with the administration and management of this Agreement and the other Credit
Documents.




          10.18. Usury Savings Clause. Notwithstanding any other provision herein, the aggregate
interest rate charged with respect to any of the Obligations, including all charges or






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fees in connection therewith deemed in the nature of interest under applicable law shall not
exceed the Highest Lawful Rate. If the rate of interest (determined without regard to the
preceding sentence) under this Agreement at any time exceeds the Highest Lawful Rate, the
outstanding amount of the Loans made hereunder shall bear interest at the Highest Lawful Rate until
the total amount of interest due hereunder equals the amount of interest which would have been due
hereunder if the stated rates of interest set forth in this Agreement had at all times been in
effect. In addition, if when the Loans made hereunder are repaid in full the total interest due
hereunder (taking into account the increase provided for above) is less than the total amount of
interest which would have been due hereunder if the stated rates of interest set forth in this
Agreement had at all times been in effect, then to the extent permitted by law, Borrower shall pay
to Administrative Agent an amount equal to the difference between the amount of interest paid and
the amount of interest which would have been paid if the Highest Lawful Rate had at all times been
in effect. Notwithstanding the foregoing, it is the intention of Lenders and Borrower to conform
strictly to any applicable usury laws. Accordingly, if any Lender contracts for, charges, or
receives any consideration which constitutes interest in excess of the Highest Lawful Rate, then
any such excess shall be cancelled automatically and, if previously paid, shall at such Lender’s
option be applied to the outstanding amount of the Loans made hereunder or be refunded to Borrower.




          10.19. Counterparts. This Agreement may be executed in any number of counterparts, each of
which when so executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument.




          10.20. Effectiveness; Entire Agreement. This Agreement shall become effective upon the
execution of a counterpart hereof by each of the parties hereto and receipt by Borrower and
Administrative Agent of written notification of such execution and authorization of delivery
thereof.




          10.21. PATRIOT Act. Each Lender and Administrative Agent (for itself and not on behalf of any
Lender) hereby notifies each Credit Party that pursuant to the requirements of the PATRIOT Act, it
is required to obtain, verify and record information that identifies each Credit Party, which
information includes the name and address of each Credit Party and other information that will
allow such Lender or Administrative Agent, as applicable, to identify such Credit Party in
accordance with the PATRIOT Act.




          10.22. Electronic Execution of Assignments. The words “execution,” “signed,” “signature,” and
words of like import in any Assignment Agreement shall be deemed to include electronic signatures
or the keeping of records in electronic form, each of which shall be of the same legal effect,
validity or enforceability as a manually executed signature or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as provided for in any applicable law,
including the Federal Electronic Signatures in Global and National Commerce Act, the New York State
Electronic Signatures and Records Act, or any other similar state laws based on the Uniform
Electronic Transactions Act.




          10.23. No Fiduciary Duty. Each Agent, each Lender and their Affiliates (collectively, solely
for purposes of this paragraph, the “Lenders”), may have economic interests that conflict with
those of Borrower, its stockholders and/or its affiliates. Borrower agrees that nothing






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in the Credit Documents or otherwise will be deemed to create an advisory, fiduciary or
agency relationship or fiduciary or other implied duty between any Lender, on the one hand, and
Borrower, its stockholders or its affiliates, on the other. The Credit Parties acknowledge and
agree that (i) the transactions contemplated by the Credit Documents (including the exercise of
rights and remedies hereunder and thereunder) are arm’s-length commercial transactions between the
Lenders, on the one hand, and Borrower, on the other, and (ii) in connection therewith and with the
process leading thereto, (x) no Lender has assumed an advisory or fiduciary responsibility in favor
of Borrower, its stockholders or its affiliates with respect to the transactions contemplated
hereby (or the exercise of rights or remedies with respect thereto) or the process leading thereto
(irrespective of whether any Lender has advised, is currently advising or will advise Borrower, its
stockholders or its Affiliates on other matters) or any other obligation to Borrower except the
obligations expressly set forth in the Credit Documents and (y) each Lender is acting solely as
principal and not as the agent or fiduciary of Borrower, its management, stockholders, creditors or
any other Person. Borrower acknowledges and agrees that Borrower has consulted its own legal and
financial advisors to the extent it deemed appropriate and that it is responsible for making its
own independent judgment with respect to such transactions and the process leading thereto.
Borrower agrees that it will not claim that any Lender has rendered advisory services of any nature
or respect, or owes a fiduciary or similar duty to Borrower, in connection with such transaction or
the process leading thereto.




[Remainder of page intentionally left blank]




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



	 	 	 	 	 
	 	VALEANT PHARMACEUTICALS INTERNATIONAL

 	 
	 	By:  	/s/ J. Michael Pearson	 
	 	 	Name:  	J. Michael Pearson	 
	 	 	Title:  	Chief Executive Officer	 
	 
	 	AMARIN PHARMACEUTICALS INC.

 	 
	 	By:  	/s/ Steve T. Min	 
	 	 	Name:  	Steve T. Min	 
	 	 	Title:  	President	 
	 
	 	HARBOR PHARMACEUTICALS, INC.

 	 
	 	By:  	/s/ Steve T. Min	 
	 	 	Name:  	Steve T. Min	 
	 	 	Title:  	President	 
	 
	 	HEALTHCHOICE ONLINE, LLC

 	 
	 	By:  	/s/ Steve T. Min	 
	 	 	Name:  	Steve T. Min	 
	 	 	Title:  	Managing Officer	 
	 
	 	HYLAND CAPITAL, INC.

 	 
	 	By:  	/s/ Steve T. Min	 
	 	 	Name:  	Steve T. Min	 
	 	 	Title:  	President	 
	 





 









 








	 	 	 	 	 
	 	ICN MEDICAL ALLIANCE, INC.

 	 
	 	By:  	/s/ Peter J. Blott	 
	 	 	Name:  	Peter J. Blott	 
	 	 	Title:  	President and Treasurer	 
	 
	 	ICN SOUTHEAST, INC.

 	 
	 	By:  	/s/ Steve T. Min	 
	 	 	Name:  	Steve T. Min	 
	 	 	Title:  	President	 
	 
	 	OCEANSIDE PHARMACEUTICALS, INC.

 	 
	 	By:  	/s/ Steve T. Min	 
	 	 	Name:  	Steve T. Min	 
	 	 	Title:  	President	 
	 
	 	VALEANT BIOMEDICALS, INC.

 	 
	 	By:  	/s/ Peter J. Blott	 
	 	 	Name:  	Peter J. Blott	 
	 	 	Title:  	President and Treasurer	 
	 
	 	VALEANT CHINA, INC.

 	 
	 	By:  	/s/ Steve T. Min	 
	 	 	Name:  	Steve T. Min	 
	 	 	Title:  	President	 
	 
	 	VALEANT PHARMACEUTICALS NORTH AMERICA

 	 
	 	By:  	/s/ J. Michael Pearson	 
	 	 	Name:  	J. Michael Pearson	 
	 	 	Title:  	Chief Executive Officer	 
	 





 









 








	 	 	 	 	 
	 	CORIA LABORATORIES, LTD.

 	 
	 	By:  	/s/
J. Michael Pearson 	 
	 	 	Name:  	J. Michael Pearson 	 
	 	 	Title:  	Chief Executive Officer 	 
	 
	 	DOW PHARMACEUTICAL SCIENCES, INC.

 	 
	 	By:  	/s/
J. Michael Pearson 	 
	 	 	Name:  	J. Michael Pearson 	 
	 	 	Title:  	Chief Executive Officer 	 
	 



Credit and Guaranty Agreement





 









 








	 	 	 	 	 
	 	GOLDMAN SACHS BANK USA,

as Administrative Agent, Collateral Agent and 

Lender

 	 
	 	By:  	/s/
Mark Walton 	 
	 	 	Name:  	Mark Walton 	 
	 	 	Title:  	Authorized Signatory 	 
	 





 









 








APPENDIX A

TO CREDIT AND GUARANTY AGREEMENT




Commitments




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Pro	 
	Lender	 	Commitment	 	 	Rata Share	 
	Goldman Sachs Bank USA
	 	$	30,000,000	 	 	 	100	%
	 
	 	 	 	 	 	 
	Total	 	$	30,000,000	 	 	 	100	%
	 
	 	 	 	 	 	 






APPENDIX A-1






 









 








APPENDIX B

TO CREDIT AND GUARANTY AGREEMENT




Notice Addresses




If to the Borrower or any Guarantor:



VALEANT PHARMACEUTICALS INTERNATIONAL



One Enterprise

Aliso Viejo, California 92656

Attention: General Counsel

Facsimile: (949) 641-6062

E-mail: steve.min@valeant.com



in each case, with a copy to:



Morgan, Lewis & Bockius LLP

1701 Market Street

Philadelphia PA 19103-2921

Attention: Michael Pedrick

Facsimile: (215) 963-5001

E-mail: mpedrick@morganlewis.com




If to the Administrative Agent:



GOLDMAN SACHS BANK USA



200 West Street

New York, NY 10282

Attention: Lauren Day

Fax: 917-977-3966



with a copy to:



Goldman Sachs Credit Partners L.P.

200 West Street

New York, NY 10282

Attention: Elizabeth Fischer