EX-10.1




Exhibit 10.1



	 	 	 
	CREDIT SUISSE SECURITIES (USA) LLC
	 	WACHOVIA CAPITAL MARKETS, LLC
	Eleven Madison Avenue
	 	One Wachovia Center
	New York, NY 10010
	 	301 South College Street
	 
	 	Charlotte, NC 28288
	 	 	 
	CREDIT SUISSE
	 	WACHOVIA BANK, NATIONAL ASSOCIATION
	Eleven Madison Avenue
	 	One Wachovia Center
	New York, NY 10010
	 	301 South College Street
	 
	 	Charlotte, NC 28288






CONFIDENTIAL




November 23, 2008




King Pharmaceuticals, Inc.

501 Fifth Street

Bristol, Tennessee 37620

Attention: Joe Squicciarino




PROJECT ALBERT

$775,000,000 Senior Secured Credit Facilities

Amended and Restated Commitment Letter




Ladies and Gentlemen:




     This Amended and Restated Commitment Letter amends and restates the commitment letter among
the parties hereto dated September 11, 2008 (the “Original Commitment Letter”) with respect to the
subject matter hereof, and supersedes and replaces the Original Commitment Letter in all respects.



     You have advised Credit Suisse (“CS”), Credit Suisse Securities (USA) LLC (“CS Securities”
and, together with CS and their respective affiliates, “Credit Suisse”), Wachovia Bank, National
Association (“Wachovia Bank”) and Wachovia Capital Markets, LLC (“Wachovia Securities” and,
together with Wachovia Bank and their respective affiliates, “Wachovia”, and together with Credit
Suisse, the “Commitment Parties”, “we” or “us”) that you intend to acquire (the “Acquisition”) all
the equity interests of a company previously identified to us as “Albert” (the “Company”), and to
consummate the other Transactions (such term and each other capitalized term used but not defined
herein having the meaning assigned to such term in the Summary of Principal Terms and Conditions
attached hereto as Exhibit A (the “Term Sheet”)).



     You have further advised us that, in connection therewith, the Borrower will obtain the senior
secured credit facilities (the “Senior Facilities”) described in the Term Sheet, in an aggregate
principal amount of up to $775,000,000.



Commitment Letter




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1. Commitments.




     In connection with the foregoing, each of Credit Suisse and Wachovia is pleased to advise you
of its several, but not joint, commitment to each provide 50% of the principal amount of the Senior
Facilities, upon the terms and subject to the conditions set forth in this commitment letter
(including the Term Sheet and other attachments hereto, this “Commitment Letter”) and in Exhibits A
and B hereto.



2. Titles and Roles.




     You hereby appoint (a) each of CS Securities and Wachovia Securities to act, and each of CS
Securities and Wachovia Securities hereby agrees to act, as joint bookrunners and joint arrangers
for the Senior Facilities (collectively, the “Joint Arrangers”), (b) Wachovia Securities to act,
and Wachovia Securities hereby agrees to act, as Syndication Agent and (c) CS to act, and CS hereby
agrees to act, as sole administrative agent and sole collateral agent for the Senior Facilities, in
each case upon the terms and subject to the conditions set forth or referred to in this Commitment
Letter. Each of CS Securities, CS and Wachovia Securities, in such capacities, will perform the
duties and exercise the authority customarily performed and exercised by it in such roles. You
agree that Credit Suisse will have “left” placement in any and all marketing materials or other
documentation used in connection with the Senior Facilities. You further agree that no other
titles will be awarded and no compensation (other than that expressly contemplated by this
Commitment Letter and the Fee Letter referred to below) will be paid in connection with the Senior
Facilities unless you and we shall so agree.



3. Syndication.




     We reserve the right, prior to and/or after the execution of definitive documentation for the
Senior Facilities, to syndicate all or a portion of our commitments with respect to the Senior
Facilities to a group of banks, financial institutions and other institutional lenders (together
with the Commitment Parties, the “Lenders”) identified by us and reasonably acceptable to you, and
you agree to provide us through at least December 12, 2008 to syndicate the Senior Facilities. We
have commenced syndication efforts and you agree to continue to actively assist us in completing a
satisfactory syndication. Such assistance shall include (a) your using commercially reasonable
efforts to ensure that any syndication efforts benefit materially from your existing lending and
investment banking relationships, (b) direct contact between senior management, representatives and
advisors of you and the proposed Lenders, (c) assistance by you in the preparation of a
Confidential Information Memorandum for the Senior Facilities and other marketing materials to be
used in connection with the syndication, (d) your providing or causing to be provided a detailed
business plan or projections of the Borrower and its subsidiaries for the years 2008 through 2014
(if the Closing Date occurs in 2008) or 2015 (if the Closing Date occurs in 2009) and for the eight
quarters beginning with the third quarter of 2008, in each case, to the extent delivered after the
date hereof, in form and substance the same in all material respects as previously delivered and
otherwise reasonably satisfactory to us (we confirm that you have delivered such business plan
prior to the date hereof and such business plan was in form and substance reasonably satisfactory
to us), (e) your using commercially reasonable efforts to obtain, promptly following the execution
hereof, a public corporate credit rating from Standard & Poor’s Ratings Service (“S&P”) and a
public corporate family rating from Moody’s Investors Service, Inc. (“Moody’s”), in each case with
respect to the Borrower and giving effect to the Transactions, and ratings for the Senior
Facilities from each of S&P and Moody’s, and (f) the hosting, with the Joint Arrangers, of one or
more meetings of prospective Lenders. You further agree that, if Merger Sub, you and the Company
enter into an agreement and plan of merger in connection with



Commitment Letter




2









 




the Acquisition (a “Merger Agreement”) prior to the consummation of a Tender Offer or if the
Board of Directors of the Company recommends the Tender Offer to its shareholders (each, a
“Negotiated Transaction”), you will thereafter use your commercially reasonable efforts to cause
the Company, its senior management, representatives and advisors to assist in the foregoing
matters.




     You agree, at the request of the Joint Arrangers, to assist in the preparation of a version of
the Confidential Information Memorandum and other marketing materials and presentations to be used
in connection with the syndication of the Senior Facilities, consisting exclusively of information
and documentation that is either (i) publicly available or (ii) not material with respect to the
Borrower or the Company or their respective subsidiaries or any of their respective securities for
purposes of foreign, United States Federal and state securities laws (all such information and
documentation being “Public Lender Information”). Any information and documentation that is not
Public Lender Information is referred to herein as “Private Lender Information”. You further agree
that each document to be disseminated by the Joint Arrangers to any Lender in connection with the
Senior Facilities will, at the request of any Joint Arranger, be identified by you as either (i)
containing Private Lender Information or (ii) containing solely Public Lender Information. You
acknowledge that the following documents contain solely Public Lender Information (unless you
notify us promptly (after you have had an opportunity to review the same) that any such document
contains Private Lender Information): (a) drafts and final definitive documentation with respect to
the Senior Facilities; (b) administrative materials prepared by the Joint Arrangers for prospective
Lenders (such as a lender meeting invitation, bank allocation, if any, and funding and closing
memoranda); and (c) notification of changes in the terms of the Senior Facilities.



     The Joint Arrangers will manage all aspects of any syndication in consultation with you,
including decisions as to the selection of institutions to be approached and when they will be
approached, when their commitments will be accepted, which institutions will participate, the
allocation of the commitments among the Lenders, any naming rights and the amount and distribution
of fees among the Lenders. To assist the Joint Arrangers in their syndication efforts, you agree
promptly to prepare and provide (and, in the case of a Negotiated Transaction, to use commercially
reasonable efforts to cause the Company to provide) to the Joint Arrangers all information with
respect to the Borrower and the Company and their respective subsidiaries, the Transactions and the
other transactions contemplated hereby, including all financial information and projections (the
“Projections”), as the Joint Arrangers may reasonably request.



4. Information.




     You hereby represent and covenant (and it shall be a condition to our commitments hereunder,
and our agreements to perform the services described herein) that (a) all information other than
the Projections (the “Information”) that has been or will be made available to the Joint Arrangers
by or on behalf of you or any of your representatives is or will be, when furnished and taken as a
whole, complete and correct in all material respects and does not or will not, when furnished and
taken as a whole, contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements contained therein not materially misleading in light of
the circumstances under which such statements are made and (b) the Projections that have been or
will be made available to the Joint Arrangers by or on behalf of you or any of your representatives
have been or will be prepared in good faith based upon accounting principles consistent with the
historical audited financial statements of the Borrower and the Company and upon assumptions that
are reasonable at the time made and at the time the related Projections are made available to the
Joint Arrangers (it being understood that such Projections



Commitment Letter




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are not a guaranty of future performance and that actual results during the period covered by
such Projections may materially differ from the projected results therein). You agree that if at
any time prior to the closing of the Senior Facilities any of the representations in the preceding
sentence would be incorrect if the Information and Projections were being furnished, and such
representations were being made, at such time, then you will promptly supplement the Information
and the Projections so that such representations will be correct under those circumstances. In
arranging and syndicating the Senior Facilities, we will be entitled to use and rely primarily on
the Information and the Projections without responsibility for independent verification thereof.




5. Fees.




     As consideration for our commitments hereunder, and our agreements to perform the services
described herein, you agree to pay to us the fees set forth in this Commitment Letter and in the
amended and restated fee letter dated the date hereof and delivered herewith with respect to the
Senior Facilities (the “Fee Letter”).



6. Conditions Precedent.




     Our commitments hereunder, and our agreements to perform the services described herein, are
subject to (a) our not having discovered or otherwise having become aware of any information not
previously disclosed to us (including without limitation by way of any public filings by the
Borrower or the Company with the Securities and Exchange Commission prior to the date hereof) that
is inconsistent in a material and adverse manner with our understanding, based on the information
provided to us prior to the date hereof, of (i) the business, assets, liabilities, operations,
condition (financial or otherwise), operating results, Projections or prospects of the Company and
its subsidiaries or the Borrower and its subsidiaries, in each case, taken as a whole, or (ii) the
Transactions, (b) there not having occurred any event, change or condition since December 31, 2007
(the date of the most recent audited financial statements of the Company delivered to the Joint
Arrangers as of the date hereof) that, individually or in the aggregate, has had, or could
reasonably be expected to have, a material adverse effect on the business, assets, liabilities,
operations, condition (financial or otherwise), operating results, Projections or prospects of the
Company and its subsidiaries, taken as a whole, (c) there not having occurred any event, change or
condition since December 31, 2007 (the date of the most recent audited financial statements of the
Borrower delivered to the Joint Arrangers as of the date hereof) that, individually or in the
aggregate, has had, or could reasonably be expected to have, a material adverse effect on the
business, assets, liabilities, operations, condition (financial or otherwise), operating results,
Projections or prospects of the Borrower and its subsidiaries, taken as a whole, (d) our
satisfaction that, prior to and during the syndication of the Senior Facilities, there shall be no
other issues of debt securities or commercial bank or other credit facilities of the Borrower or
its subsidiaries, or, in the event of a Negotiated Transaction, the Company or its subsidiaries,
being announced, offered, placed or arranged (other than indebtedness secured only by auction rate
securities and that otherwise has terms reasonably satisfactory to the Joint Arrangers (a
“Permitted ARS Borrowing”)), (e) the negotiation, execution and delivery of definitive
documentation with respect to the Senior Facilities on terms and conditions set forth herein and
otherwise in form and substance reasonably satisfactory to us and our counsel, (f) your compliance
with the terms of this Commitment Letter and the Fee Letter, and (g) the other conditions set forth
in Exhibits A and B hereto. The terms of the definitive documentation for the Senior Facilities
shall be in a form such that they do not materially impair the initial funding of the Senior
Facilities on the Closing Date if the conditions set forth in the preceding sentence are satisfied.



Commitment Letter




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7. Indemnification; Expenses.




     You agree (a) to indemnify and hold harmless each Commitment Party and its officers,
directors, employees, agents, advisors, controlling persons, members and successors and assigns
(each, an “Indemnified Person”) from and against any and all losses, claims, damages, liabilities
and expenses, joint or several, to which any such Indemnified Person may become subject arising out
of or in connection with this Commitment Letter, the Fee Letter, the Transactions, the Senior
Facilities or any related transaction or any claim, litigation, investigation or proceeding
relating to any of the foregoing, regardless of whether any such Indemnified Person is a party
thereto (and regardless of whether such matter is initiated by a third party or by the Borrower,
the Company or any of their respective shareholders or affiliates), and to reimburse each such
Indemnified Person upon demand for any reasonable legal or other expenses incurred in connection
with investigating or defending any of the foregoing, provided that the foregoing indemnity will
not, as to any Indemnified Person, apply to losses, claims, damages, liabilities or related
expenses to the extent they are found in a final, non-appealable judgment of a court of competent
jurisdiction to have resulted primarily from the willful misconduct or gross negligence of such
Indemnified Person, and (b) to reimburse each Commitment Party from time to time, upon
presentation of a summary statement, for all reasonable out-of-pocket expenses (including but not
limited to expenses of such Commitment Party’s due diligence investigation, consultants’ fees,
syndication expenses, travel expenses and fees, disbursements and other charges of counsel), in
each case, incurred in connection with the Senior Facilities and the preparation, negotiation and
enforcement of this Commitment Letter, the Fee Letter, the definitive documentation for the Senior
Facilities and any ancillary documents and security arrangements in connection therewith.
Notwithstanding any other provision of this Commitment Letter, no Indemnified Person shall be
liable for any indirect, special, punitive or consequential damages in connection with its
activities related to the Senior Facilities.



8. Sharing Information; Absence of Fiduciary Relationship; Affiliate Activities.




     You acknowledge that each Commitment Party may be providing debt financing, equity capital or
other services (including financial advisory services) to other companies in respect of which you
may have conflicting interests regarding the transactions described herein or otherwise. We will
not furnish confidential information obtained from you by virtue of the transactions contemplated
by this Commitment Letter or our other relationships with you to other companies. You also
acknowledge that we do not have any obligation to use in connection with the transactions
contemplated by this Commitment Letter, or to furnish to you, confidential information obtained by
us from other companies.



     You further acknowledge and agree that (a) no fiduciary, advisory or agency relationship
between you and any Commitment Party is intended to be or has been created in respect of any of the
transactions contemplated by this Commitment Letter, irrespective of whether any Commitment Party
has advised or is advising you on other matters, (b) the Commitment Parties, on the one hand, and
you, on the other hand, have an arms-length business relationship that does not directly or
indirectly give rise to, nor do you rely on, any fiduciary duty on the part of any Commitment
Party, (c) you are capable of evaluating and understanding, and you understand and accept, the
terms, risks and conditions of the transactions contemplated by this Commitment Letter, (d) you
have been advised that each Commitment Party is engaged in a broad range of transactions that may
involve interests that differ from your interests and that no Commitment Party has any obligation
to disclose such interests and transactions to you by virtue of any fiduciary, advisory or agency
relationship, and (e) you waive, to the fullest extent permitted by law, any claims you may have
against any Commitment Party for breach of fiduciary duty or



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alleged breach of fiduciary duty and agree that no Commitment Party shall have any liability
(whether direct or indirect) to you in respect of such a fiduciary duty claim or to any person
asserting a fiduciary duty claim on behalf of or in right of you, including your stockholders,
employees or creditors. Additionally, you acknowledge and agree that the Commitment Parties are
not advising you as to any legal, tax, investment, accounting or regulatory matters in any
jurisdiction. You shall consult with your own advisors concerning such matters and shall be
responsible for making your own independent investigation and appraisal of the transactions
contemplated hereby, and no Commitment Party shall have any responsibility or liability to you with
respect thereto. Any review by any Commitment Party of the Borrower, the Company, the
Transactions, the other transactions contemplated hereby or other matters relating to such
transactions will be performed solely for the benefit of such Commitment Party and shall not be on
behalf of you or any of your affiliates.




     You further acknowledge that each Commitment Party is a full service securities firm engaged
in securities trading and brokerage activities as well as providing investment banking and other
financial services. In the ordinary course of business, each Commitment Party may provide
investment banking and other financial services to, and/or acquire, hold or sell, for its own
accounts and the accounts of customers, equity, debt and other securities and financial instruments
(including bank loans and other obligations) of, you, the Company and other companies with which
you or the Company may have commercial or other relationships. With respect to any securities
and/or financial instruments so held by any Commitment Party or any of its customers, all rights in
respect of such securities and financial instruments, including any voting rights, will be
exercised by the holder of the rights, in its sole discretion.



9. Assignments; Amendments; Governing Law, Etc.




     This Commitment Letter shall not be assignable by you without the prior written consent of the
Joint Arrangers (and any attempted assignment without such consent shall be null and void), is
intended to be solely for the benefit of the parties hereto (and Indemnified Persons), and is not
intended to confer any benefits upon, or create any rights in favor of, any person other than the
parties hereto (and Indemnified Persons). Each Commitment Party may assign its commitment
hereunder to one or more prospective Lenders with the prior written consent of CS Securities (which
consent shall not be unreasonably withheld or delayed), whereupon such Commitment Party shall be
released from the portion of its commitment hereunder so assigned. Any and all obligations of, and
services to be provided by, any Commitment Party hereunder (including, without limitation, such
Commitment Party’s commitment) may be performed and any and all rights of such Commitment Party
hereunder may be exercised by or through any of its respective affiliates or branches. This
Commitment Letter may not be amended or any provision hereof waived or modified except by an
instrument in writing signed by the Joint Arrangers and you. This Commitment Letter may be
executed in any number of counterparts, each of which shall be an original and all of which, when
taken together, shall constitute one agreement. Delivery of an executed counterpart of a signature
page of this Commitment Letter by facsimile transmission shall be effective as delivery of a
manually executed counterpart hereof. Section headings used herein are for convenience of
reference only, are not part of this Commitment Letter and are not to affect the construction of,
or to be taken into consideration in interpreting, this Commitment Letter. You acknowledge that
information and documents relating to the Senior Facilities may be transmitted through SyndTrak,
Intralinks, the internet, e-mail, or similar electronic transmission systems, and that the
Commitment Parties shall not be liable for any damages arising from the unauthorized use by others
of information or documents transmitted in such manner. Each Commitment Party may place
advertisements in financial and other newspapers and periodicals or on a home page or similar place
for dissemination of information



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on the Internet or worldwide web as it may choose, and circulate similar promotional
materials, after the closing of the Transactions in the form of a “tombstone” or otherwise
describing the names of you and your affiliates (or any of them), and the amount, type and closing
date of such Transactions, all at such Commitment Party’s expense. This Commitment Letter and the
Fee Letter supersede all prior understandings, whether written or oral, between us with respect to
the Senior Facilities. THIS COMMITMENT LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.




10. Jurisdiction.




     Each of the parties hereto hereby irrevocably and unconditionally (a) submits, for itself and
its property, to the exclusive jurisdiction of any New York State court or Federal court of the
United States of America sitting in New York City, and any appellate court from any thereof, in any
action or proceeding arising out of or relating to this Commitment Letter, the Fee Letter or the
transactions contemplated hereby or thereby, and agrees that all claims in respect of any such
action or proceeding may be heard and determined only in such New York State court or, to the
extent permitted by law, in such Federal court, (b) waives, to the fullest extent it may legally
and effectively do so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Commitment Letter, the Fee Letter
or the transactions contemplated hereby or thereby in any New York State court or in any such
Federal court, (c) waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court, and (d) agrees that a
final judgment in any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law. Service of any
process, summons, notice or document by registered mail addressed to you at the address above shall
be effective service of process against you for any suit, action or proceeding brought in any such
court.



11. Waiver of Jury Trial.




     EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY OR ON BEHALF OF ANY PARTY RELATED TO OR ARISING OUT OF
THIS COMMITMENT LETTER, THE FEE LETTER OR THE PERFORMANCE OF SERVICES HEREUNDER OR THEREUNDER.



12. Confidentiality.




     This Commitment Letter is delivered to you on the understanding that neither this Commitment
Letter nor the Fee Letter nor any of their terms or substance, nor the activities of any Commitment
Party pursuant hereto, shall be disclosed, directly or indirectly, to any other person except (a)
to your officers, directors, employees, attorneys, accountants and advisors on a confidential and
need-to-know basis or (b) as required by applicable law or compulsory legal process (in which case
you agree, to the extent legally permitted to do so, to inform us promptly thereof prior to such
disclosure); provided that, after your acceptance of this Commitment Letter and the Fee Letter, you
may disclose this Commitment Letter and the contents hereof (but not the Fee Letter or the contents
thereof) (i) to the Company and its officers, directors, employees, attorneys, accountants and
advisors on a confidential and need-to-know basis, (ii) to rating agencies in connection with the
Transactions, and (iii) in filings with the Securities and Exchange Commission and other applicable
regulatory authorities and stock exchanges, to the extent you



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reasonably determine that such disclosure is required by law; provided further that, following
your acceptance of this Commitment Letter and the Fee Letter, you may disclose the Fee Letter,
redacted in a manner satisfactory to the Joint Arrangers, to the Company and its officers,
directors, employees, attorneys, accountants and advisors on a confidential “need to know” basis;
provided further that, unless otherwise instructed in writing by either Joint Arranger, you may
disclose drafts of this Commitment Letter and the contents hereof (but not the Fee Letter or the
contents thereof) to the Company and its officers, directors, employees, attorneys, accountants and
advisors on a confidential and need-to-know basis.




     Notwithstanding anything herein to the contrary, any party to this Commitment Letter (and any
employee, representative or other agent of such party) may disclose to any and all persons, without
limitation of any kind, the tax treatment and tax structure of the transactions contemplated by
this Commitment Letter and the Fee Letter and all materials of any kind (including opinions or
other tax analyses) that are provided to it relating to such tax treatment and tax structure,
except that (i) tax treatment and tax structure shall not include the identity of any existing or
future party (or any affiliate of such party) to this Commitment Letter or the Fee Letter, and (ii)
no party shall disclose any information relating to such tax treatment and tax structure to the
extent nondisclosure is reasonably necessary in order to comply with applicable securities laws.
For this purpose, the tax treatment of the transactions contemplated by this Commitment Letter and
the Fee Letter is the purported or claimed U.S. Federal income tax treatment of such transactions
and the tax structure of such transactions is any fact that may be relevant to understanding the
purported or claimed U.S. Federal income tax treatment of such transactions.



13. Surviving Provisions.




     The compensation, reimbursement, indemnification, confidentiality, syndication, jurisdiction,
governing law and waiver of jury trial provisions contained herein and in the Fee Letter shall
remain in full force and effect regardless of whether definitive financing documentation shall be
executed and delivered and (other than in the case of the syndication provisions) notwithstanding
the termination of this Commitment Letter or any Commitment Party’s commitment hereunder and our
agreements to perform the services described herein.



14. PATRIOT Act Notification.




     Each Commitment Party hereby notifies you that, pursuant to the requirements of the USA
PATRIOT Act, Title III of Pub. L. 107-56 (signed into law October 26, 2001) (the “PATRIOT Act”),
such Commitment Party and each Lender is required to obtain, verify and record information that
identifies the Borrower, which information includes the name, address, tax identification number
and other information regarding the Borrower that will allow such Commitment Party or such Lender
to identify the Borrower in accordance with the PATRIOT Act. This notice is given in accordance
with the requirements of the PATRIOT Act and is effective as to each Commitment Party and each
Lender. You hereby acknowledge and agree that each Commitment Party shall be permitted to share
any or all such information with the Lenders.



15. Acceptance and Termination.




     If the foregoing correctly sets forth our agreement with you, please indicate your acceptance
of the terms of this Commitment Letter and of the Fee Letter by returning to us executed
counterparts hereof and of the Fee Letter not later than 12:00 (noon), New York City time, on
November 24, 2008. Each Commitment Party’s offer hereunder, and its agreements to



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perform the services described herein, will expire automatically and without further action or
notice and without further obligation to you at such time in the event that the Joint Arrangers
have not received such executed counterparts in accordance with the immediately preceding sentence.
This Commitment Letter will become a binding commitment on each Commitment Party only after it has
been duly executed and delivered by you in accordance with the first sentence of this Section 15.
In the event that the Closing Date does not occur on or before 5:00 p.m., New York City time, on
the earliest to occur of (x) the date of the closing of the Tender Offer, (y) the public
announcement of the abandonment of the Acquisition or acceptance of an alternative proposal or, in
the event a Merger Agreement is entered into, the termination of the Merger Agreement or (z)
February 15, 2009, then this Commitment Letter and each Commitment Party’s commitment hereunder,
and our agreements to perform the services described herein, shall automatically terminate without
further action or notice and without further obligation to you unless the Commitment Parties shall,
in their discretion, agree to an extension.




[Remainder of this page intentionally left blank]




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



	 	 	 	 	 
	 	Very truly yours,



CREDIT SUISSE SECURITIES (USA) LLC

 	 
	 	By  	/s/
Jeffrey Cohen	 
	 	 	Name:  	Jeffrey Cohen	 
	 	 	Title:  	Managing  Director	 
	 
	 	CREDIT SUISSE, CAYMAN ISLANDS BRANCH

 	 
	 	By  	/s/
John D. Toronto	 
	 	 	Name:  	John D. Toronto	 
	 	 	Title:  	Director	 
	 
	 	 	 
	 	By  	
/s/ Shaheen Malik	 
	 	 	Name:  	Shaheen Malik	 
	 	 	Title:  	Associate	 
	 
	 	WACHOVIA CAPITAL MARKETS, LLC

 	 
	 	By  	/s/
David Gillespie	 
	 	 	Name:  	David Gillespie	 
	 	 	Title:  	Managing Director	 
	 
	 	WACHOVIA BANK, NATIONAL ASSOCIATION

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



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	Accepted and agreed to
as of 

the date first above written:	 	 	 	 
	 
	 	 	 	 	 	 
	KING PHARMACEUTICALS, INC.	 	 	 	 
	 
	 	 	 	 	 	 
	By

	 	/s/ Brian A. Markison	 	 
	 	 
	 

	 	 	 	 	 	 
	 

	 	Name: Brian A. Markison	 	 	 	 
	 

	 	Title: Chairman, President and
Chief Executive Officer	 	 	 	 






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CONFIDENTIAL




EXHIBIT A




PROJECT ALBERT

$775,000,000 Senior Secured Credit Facilities

Summary of Principal Terms and Conditions




	 	 	 	 	 
	Borrower:

	 	 	 	King Pharmaceuticals, Inc., a Tennessee
corporation (the “Borrower”).
	 
	 	 	 	 
	Transactions:

	 	 	 	The Borrower intends to acquire (the
“Acquisition”) all the equity interests of a
company previously identified to the Joint
Arrangers (as defined below) as “Albert” (the
“Company”). The Acquisition will be effected
through a two-step transaction pursuant to which
the Borrower or a newly formed, wholly-owned
Delaware subsidiary of the Borrower (“Merger
Sub”) will commence a cash tender offer (the
“Tender Offer”) for all of the issued and
outstanding shares of capital stock of the
Company not owned directly or indirectly by the
Borrower at the time of the commencement of the
Tender Offer, followed as promptly as
practicable after the consummation of the Tender
Offer by a merger (the “Second-Step Merger”) of
Merger Sub with and into the Company, with the
Company surviving as a wholly owned subsidiary
of the Borrower and all shares not tendered in
the Tender Offer, subject to dissenters’ rights,
being cashed out in the Second-Step Merger. In
connection with the Acquisition, (a) equity
holders of the Company shall receive cash
consideration not to exceed an amount to be
agreed among the Joint Arrangers and the
Borrower, (b) the Borrower will obtain the
senior secured credit facilities described below
under the caption “Senior Facilities”, and
(c) fees and expenses incurred in connection
with the foregoing in an aggregate amount not to
exceed an amount to be agreed among the Joint
Arrangers and the Borrower (the “Transaction
Costs”) will be paid. The transactions
described in this paragraph are collectively
referred to herein as the “Transactions”.
	 
	 	 	 	 
	Agent:

	 	 	 	Credit Suisse, acting through one or more of its
branches or affiliates (“CS”), will act as sole
administrative agent and collateral agent
(collectively, in such capacities, the “Agent”)
for a syndicate of banks, financial institutions
and other institutional lenders reasonably
acceptable to you (together with CS, the
“Lenders”), and will perform the duties
customarily associated with such roles.
	 
	 	 	 	 
	Joint Bookrunners and
Joint
Arrangers:

	 	 	 	Credit Suisse Securities (USA) LLC and Wachovia
Capital Markets, LLC will act as joint
bookrunners and joint arrangers for the Senior
Facilities described





Senior Facilities Term Sheet



A-1









 






	 	 	 	 	 
	 

	 	 	 	below (collectively, in
such capacities, the “Joint Arrangers”), and
will perform the duties customarily associated
with such roles. Credit Suisse will have “left”
placement in any and all marketing materials or
other documentation used in connection with the
Senior Facilities.
	 
	 	 	 	 
	Syndication Agent:

	 	 	 	Wachovia Capital Markets, LLC will act as
syndication agent for the Senior Facilities
described below (in such capacity, the
"Syndication Agent”).
	 
	 	 	 	 
	Documentation Agent:

	 	 	 	At the option of the Joint Arrangers, one or
more financial institutions identified by the
Joint Arrangers and acceptable to the Borrower
(in such capacity, the “Documentation Agent”).
	 
	 	 	 	 
	Senior Facilities:

	 	(A)
	 	A senior secured term loan facility in an
aggregate principal amount of up to $125,000,000
(the “Term Loan A Facility”).
	 
	 	 	 	 
	 

	 	(B)
	 	A senior secured term loan facility in an
aggregate principal amount of up to $500,000,000
(the “Term Loan B Facility” and, together with
the Term Loan A Facility, the “Term
Facilities”).
	 
	 	 	 	 
	 

	 	 	 	To the extent the Borrower is able to access its
auction rate securities (“ARS”) (whether through
a Permitted ARS Borrowing, redemption of such
ARS by the issuer thereof, repurchase of such
ARS by the seller thereof, sale of such ARS by
the Borrower or otherwise (each of the foregoing
an “ARS Liquidation”)) on or prior to the
Closing Date, the size of the Term Facilities
shall be reduced in an amount equal to the net
cash proceeds thereof so accessed; provided that
in the event that the Revolving Facility is
reduced to $100,000,000 upon failure to satisfy
the Ratings Condition as provided below, such
reduction of the Term Facilities shall only be
required from and to the extent that the net
cash proceeds of all such ARS Liquidations
exceed $50,000,000 (the allocation of such
reduction between the Term Facilities to be
determined by the Joint Arrangers in
consultation with the Borrower).




Senior Facilities Term Sheet





A-2









 






	 	 	 	 	 
	 

	 	(C)
	 	A senior secured revolving credit facility in an
aggregate principal amount of up to $150,000,000
(the “Revolving Facility” and, together with the
Term Facilities, the “Senior Facilities”), of
which up to an aggregate amount to be agreed
upon will be available through a subfacility in
the form of letters of credit; provided that if
the Ratings Condition (as defined below) is not
satisfied, the amount of the Revolving Facility
shall be reduced to $100,000,000.
	 
	 	 	 	 
	 

	 	 	 	In connection with the Revolving Facility, CS
(in such capacity, the “Swingline Lender”) will
make available to the Borrower a swingline
facility under which the Borrower may make
short-term borrowings of up to an aggregate
amount to be agreed upon. Except for purposes
of calculating the Commitment Fee described in
Annex I hereto, any such swingline borrowings
will reduce availability under the Revolving
Facility on a dollar-for-dollar basis. Each
Lender under the Revolving Facility shall,
promptly upon request by the Swingline Lender,
fund to the Swingline Lender its pro rata share
of any swingline borrowings.
	 
	 	 	 	 
	Purpose:

	 	(A)
	 	The proceeds of the Term Facilities will be used
by the Borrower solely as follows: (a) to pay
part of the share consideration payable upon
consummation of the Tender Offer and the merger
consideration payable upon consummation of the
Second-Step Merger (the share and merger
consideration, the “Acquisition Consideration”),
(b) to refinance certain existing indebtedness
of the Borrower and its subsidiaries and the
Company and its subsidiaries outstanding as of
the Closing Date (the “Existing Debt”) and
(c) to pay the Transaction Costs.
	 
	 	 	 	 
	 

	 	(B)
	 	The proceeds of loans under the Revolving
Facility will be used by the Borrower solely
from time to time for general corporate purposes
(including the payment of Acquisition
Consideration).
	 
	 	 	 	 
	 

	 	(C)
	 	Letters of credit will be used solely to support
payment obligations incurred in the ordinary
course of business by the Borrower and its
subsidiaries.
	 
	 	 	 	 
	Availability:

	 	(A)
	 	The Term Facilities shall be available in not
more than 3 drawings at any time commencing on
the Closing Date and ending on the earlier of
(i) the date that is 120 days after the Closing
Date and (ii) the consummation of the
Second-Step Merger.
	 
	 	 	 	 
	 

	 	 	 	Amounts borrowed under the Term Facilities that
are repaid or prepaid may not be reborrowed.




Senior Facilities Term Sheet





A-3









 







	 	 	 	 	 
	 

	 	(B)
	 	Loans under the Revolving Facility may be made
on the Closing Date to fund any Acquisition
Consideration and to fund up-front fees or
original issue discount as expressly
contemplated by the Fee Letter. Letters of
credit may be issued on the Closing Date in
order to backstop or replace letters of credit
outstanding on the Closing Date under the
facilities no longer available to the Borrower
and its subsidiaries as of the Closing Date or,
in lieu thereof, loans under the Revolving
Facility may be made on the Closing Date up to
an amount to be agreed to cash collateralize
such outstanding letters of credit. After the
Closing Date, loans under the Revolving Facility
will be available at any time prior to the final
maturity of the Revolving Facility, in minimum
principal amounts and upon notice to be agreed
upon. Amounts repaid under the Revolving
Facility may be reborrowed.
	 
	 	 	 	 
	Original Issue Discount:

	 	(A)
	 	Term Loan A Facility
	 
	 	 	 	 
	 

	 	 	 	If, on the Closing Date, the Borrower has
received a public corporate credit rating of BB- or higher by S&P and a public corporate family
rating of Ba3 or higher by Moody’s (the “Ratings
Condition”), the loans under the Term Loan A
Facility will be issued to the Lenders at a
price of 98.0% of their principal amount. 


If, on the Closing Date, the Ratings Condition
is not satisfied, the loans under the Term Loan
A Facility will be issued to the Lenders at a
price of 97.5% of their principal amount.
	 
	 	 	 	 
	 

	 	(B)
	 	Term Loan B Facility
	 
	 	 	 	 
	 

	 	 	 	If, on the Closing Date, the Ratings Condition
is satisfied, the loans under the Term Loan B
Facility will be issued to the Lenders at a
price of 97.5% of their principal amount.
	 
	 	 	 	 
	 

	 	 	 	If, on the Closing Date, the Ratings Condition
is not satisfied, the loans under the Term Loan
B Facility will be issued to the Lenders at a
price of 97.0% of their principal amount.




Senior Facilities Term Sheet





A-4









 






	 	 	 	 	 
	 

	 	(C)
	 	Revolving Facility
	 
	 	 	 	 
	 

	 	 	 	If, on the Closing Date, the Ratings Condition
is satisfied, an upfront fee equal to 2.0% of
the aggregate commitments under the Revolving
Facility will be payable by the Borrower on the
Closing Date to the Lenders under the Revolving
Facility.
	 
	 	 	 	 
	 

	 	 	 	If, on the Closing Date, the Ratings Condition
is not satisfied, an upfront fee equal to 2.5%
of the aggregate commitments under the Revolving
Facility will be payable by the Borrower on the
Closing Date to the Lenders under the Revolving
Facility.
	 
	 	 	 	 
	 

	 	(D)
	 	Generally
	 
	 	 	 	 
	 

	 	 	 	Notwithstanding the above, (a) all calculations
of interest and fees in respect of the Senior
Facilities will be calculated on the basis of
their full stated principal amount and (b) at
the option of the Joint Arrangers, any original
issue discount may instead be effected in the
form of additional upfront fees payable to the
applicable Lenders.
	 
	 	 	 	 
	Interest Rates and
Fees:

	 	 	 	As set forth on Annex I hereto.
	 
	 	 	 	 
	Default Rate:

	 	 	 	The applicable interest rate plus 2.0% per annum.
	 
	 	 	 	 
	Letters of Credit:

	 	 	 	Letters of credit under the Revolving Facility
will be issued by CS or another Lender
acceptable to the Borrower and the Agent (the
"Issuing Bank”). Each letter of credit shall
expire not later than the earlier of (a) 12
months after its date of issuance and (b) the
fifth business day prior to the final maturity
of the Revolving Facility; provided, however,
that any letter of credit may provide for
renewal thereof for additional periods of up to
12 months (which in no event shall extend beyond
the date referred to in clause (b) above).
	 
	 	 	 	 
	 

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

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





 Senior Facilities Term Sheet




A-5









 






	 	 	 	 	 
	Final Maturity
and Amortization:

	 	(A)
	 	Term Loan A Facility


The Term Loan A Facility will mature on the date
that is five years after the Closing Date, and
will amortize in equal quarterly installments in
an aggregate annual amount equal to 7.5% of the
original principal amount of the Term Loan A
Facility during the first year after the Closing
Date, 7.5% of the original principal amount of
the Term Loan A Facility during the second year
after the Closing Date, 10% of the original
principal amount of the Term Loan A Facility
during the third year after the Closing Date,
15% of the original principal amount of the Term
Loan A Facility during the fourth year after the
Closing Date and 60% of the original principal
amount of the Term Loan A Facility during the
fifth year after the Closing Date.
	 
	 	 	 	 
	 

	 	(B)
	 	Term Loan B Facility
	 
	 	 	 	 
	 

	 	 	 	The Term Loan B Facility will mature on the date
that is six years after the Closing Date, and
will amortize in equal quarterly installments in
an aggregate annual amount equal to 1% of the
original principal amount of the Term Loan B
Facility with the balance payable on the
maturity date of the Term Loan B Facility.
	 
	 	 	 	 
	 

	 	(C)
	 	Revolving Facility
	 
	 	 	 	 
	 

	 	 	 	The Revolving Facility will mature and the
commitments thereunder will terminate on the
date that is five years after the Closing Date.
	 
	 	 	 	 
	 

	 	(D)
	 	Generally
	 
	 	 	 	 
	 

	 	 	 	Notwithstanding the foregoing, each of the
Senior Facilities shall mature and be payable in
full on October 1, 2011 unless the Borrower’s
11/4% convertible senior notes due April 1, 2026
(the “Borrower’s Convertible Notes”) shall have
been refinanced on terms reasonably satisfactory
to the Agent on or prior to such date.
	 
	 	 	 	 
	Guarantees:

	 	 	 	All obligations of the Borrower under the Senior
Facilities and under any interest rate
protection or other hedging arrangements entered
into with the Agent, any Joint Arranger, an
entity that is a Lender at the time of such
transaction, or any affiliate of any of the
foregoing (“Hedging Arrangements”) will be
unconditionally guaranteed (the “Guarantees”) by
each existing and subsequently acquired or
organized domestic subsidiary of the Borrower
(the “Subsidiary Guarantors”); provided that the
Company and its subsidiaries shall not be
required to become Guarantors prior to the
consummation of the Second-





 Senior Facilities Term Sheet




A-6









 







	 	 	 	 	 
	 

	 	 	 	
Step Merger.

	 
	Security:

	 	 	 	 The Senior Facilities, the Guarantees and any
Hedging Arrangements will be secured by
substantially all assets of the Borrower and
each Subsidiary Guarantor, whether owned on the
Closing Date or thereafter acquired
(collectively, the “Collateral”), including but
not limited to: (a) a perfected
first-priority 
pledge of all the equity interests held by the
Borrower or any Subsidiary Guarantor (excluding,
prior to the consummation of the Second-Step
Merger, the equity interests of the Company)
(which pledge, in the case of any foreign
subsidiary, (i) shall be limited to 100% of the
non-voting equity interests (if any) and 66% of
the voting equity interests of such foreign
subsidiary to the extent the pledge of any
greater percentage would result in adverse tax
consequences to the Borrower and (ii) shall
exclude any equity interests in immaterial
foreign subsidiaries) and (b) perfected
first-priority security interests in, and
mortgages on, substantially all tangible and
intangible assets of the Borrower and each
Subsidiary Guarantor (including but not limited
to accounts receivable, inventory, equipment,
general intangibles, investment property,
intellectual property, real property, cash,
deposit and securities accounts, commercial tort
claims, letter of credit rights, intercompany
notes and proceeds of the foregoing).
	 
	 	 	 	 
	 

	 	 	 	All the above-described pledges, security
interests and mortgages shall be created on
terms, and pursuant to documentation, reasonably
satisfactory to the Lenders (including, in the
case of real property, by customary items such
as satisfactory title insurance and surveys),
and none of the Collateral shall be subject to
any other liens, subject to customary and
limited exceptions to be agreed upon.
Notwithstanding the foregoing, (i) in
circumstances where the Agent and the Borrower
agree that the cost, burden or consequences of
obtaining or perfecting a security interest in
any asset is excessive in relation to the
practical benefit afforded thereby, such asset
shall be excluded from the Collateral, (ii) (x)
the Borrower and its subsidiaries (excluding the
Company and its subsidiaries) shall only be
required to provide liens on real property,
deposit accounts and letter of credit rights
(the “Specified Collateral”) within a reasonable
period of time (to be agreed) following the
Closing Date; provided that it shall use
commercially reasonable efforts to provide a
lien on such Specified Collateral on or prior to
such date and (y) the





 Senior Facilities Term Sheet




A-7









 






	 	 	 	 	 
	 

	 	 	 	Company and its
subsidiaries shall only be obligated to provide
liens on Specified Collateral within a
reasonable period of time (to be agreed upon)
following the Second-Step Merger; provided that
it shall have used commercially reasonable
efforts to provide a lien on such Specified
Collateral on or prior to such date and (iii)
ARS shall not constitute part of the Collateral
to the extent subject to a Permitted ARS
Borrowing (and shall be automatically released
from the Collateral in the event of any
consummation of a Permitted ARS Borrowing
post-closing).
	 
	 	 	 	 
	Mandatory Prepayments:

	 	 	 	Loans under the Senior Facilities shall be
prepaid with (a) 50% of Excess Cash Flow (to be
defined), subject to a leveraged-based step-down
to be agreed, (b) 100% of the net cash proceeds
of all asset sales or other dispositions of
property by the Borrower and its subsidiaries
(including proceeds from the sale of stock of
any subsidiary of the Borrower and insurance and
condemnation proceeds but excluding certain
sales of margin stock) (subject to exceptions
and reinvestment provisions to be agreed upon),
(c) 100% of the net cash proceeds of issuances,
offerings or placements of debt obligations of
the Borrower and its subsidiaries (subject to
exceptions to be agreed upon), (d) 100% of the
net cash proceeds of any ARS Liquidation
received after the Closing Date; provided that
in the event that Revolving Facility is reduced
to $100,000,000 upon a failure to satisfy the
Ratings Condition as provided above, such
prepayment shall only be required from and to
the extent that the net cash proceeds from all
ARS Liquidations exceed $50,000,000 in the
aggregate, (e) 50% of the net cash proceeds of
issuances of equity securities of the Borrower
and its subsidiaries (subject to exceptions to
be agreed upon), and (f) 100% of any purchase
price adjustment following consummation of the
Acquisition.
	 
	 	 	 	 
	 

	 	 	 	Notwithstanding the foregoing, each Lender under
the Term Facilities shall have the right to
reject its pro rata share of any mandatory
prepayments described above. Any remaining
amounts may be retained by the Borrower.
	 
	 	 	 	 
	 

	 	 	 	The above-described mandatory prepayments shall
be applied pro rata to the remaining
amortization payments under the Term Facilities.
When there are no longer outstanding loans
under the Term Facilities, mandatory prepayments
will be applied first, to prepay outstanding
loans under the Revolving Facility and second,
to cash
collateralize outstanding letters of




Senior Facilities Term Sheet





A-8









 






	 	 	 	 	 
	 

	 	 	 	credit, in each case, with no corresponding
permanent reduction of commitments under the
Revolving Facility.
	 
	 	 	 	 
	Voluntary Prepayments
and Reductions in
Commitments:

	 	 	 	Voluntary reductions of the unutilized portion
of the commitments under the Senior Facilities
and prepayments of borrowings thereunder will be
permitted at any time, in minimum principal
amounts to be agreed upon, without premium or
penalty, subject to reimbursement of the
Lenders’ redeployment costs in the case of a
prepayment of Adjusted LIBOR borrowings other
than on the last day of the relevant interest
period. All voluntary prepayments of the Term
Facilities will be applied pro rata to the
remaining amortization payments under the Term
Facilities.
	 
	 	 	 	 
	Representations and
Warranties:

	 	 	 	To be reasonably specified by the Agent,
including, without limitation, corporate status;
legal, valid and binding documentation; no
consents; accuracy of financial statements,
confidential information memorandum and other
information; no material adverse change; absence
of undisclosed liabilities, litigation and
investigations; no violation of agreements or
instruments; compliance with laws (including
PATRIOT Act, OFAC rules and regulations, ERISA,
margin regulations, environmental laws and laws
applicable to sanctioned persons); payment of
taxes; ownership of properties; inapplicability
of the Investment Company Act; solvency;
effectiveness of governmental approvals; labor
matters; environmental and other regulatory
matters; validity, priority and perfection of
security interests in the Collateral; and
treatment as senior debt under all subordinated
debt (if any) and as sole designated senior debt
thereunder.
	 
	 	 	 	 
	Conditions Precedent to
Initial Borrowing:

	 	 	 	Delivery of satisfactory legal opinions,
corporate documents and officers’ and public
officials’ certifications; first-priority
perfected security interests in the Collateral
(free and clear of all liens, subject to
customary and limited exceptions to be agreed
upon); receipt of customary lien and judgment
searches (except with respect to the Company and
its subsidiaries); execution of the Guarantees,
which shall be in full force and effect;
evidence of authority; payment of fees and
expenses; and obtaining of customary insurance
(together with customary insurance
certificates).
	 
	 	 	 	 
	 

	 	 	 	The initial borrowing under the Senior
Facilities will also be subject to the
conditions precedent set forth in Exhibit B to
the Commitment Letter.





Senior Facilities Term Sheet




A-9









 






	 	 	 	 	 
	Conditions Precedent to
all Borrowings:

	 	 	 	Delivery of notice, accuracy of representations
and warranties and absence of defaults; provided
that the material adverse change representation
made on the Closing Date shall be consistent
with the no material adverse change conditions
precedent set forth in paragraph 6 of the
Commitment Letter; and provided further that any
borrowing under the Term Facilities occurring
after the initial borrowing for the purpose of
consummating the Second-Step Merger shall only
be subject to (i) the delivery of notice, (ii)
the additional conditions set forth below and
(iii) the conditions set forth in paragraph B of
Exhibit B to the Commitment Letter.
	 
	 	 	 	 
	 

	 	 	 	In addition, it shall be a condition to any
borrowing hereunder occurring upon or prior to
the consummation of the Second-Step Merger that,
prior to or simultaneously with such borrowing,
the Borrower shall have paid Acquisition
Consideration from cash and cash equivalents on
hand and not from the proceeds of the Senior
Facilities or other indebtedness in an amount
not less than the greater of (x) $1,000,000,000
(the “Minimum Borrower Cash Consideration”) and
(y) the amount necessary to purchase equity
interests in the Company sufficient to satisfy
the Minimum Acceptance Condition (as defined in
Exhibit B to the Commitment Letter).
	 
	 	 	 	 
	Affirmative Covenants:

	 	 	 	To be reasonably specified by the Agent (to be
applicable to the Borrower and its
subsidiaries), including, without limitation,
maintenance of corporate existence and rights;
performance of obligations; delivery of
consolidated and consolidating financial
statements and other information, including
information required under the PATRIOT Act and
audit and management letters; delivery of
notices of default, litigation, ERISA events and
material adverse change; maintenance of
properties in good working order; maintenance of
satisfactory insurance; use of commercially
reasonable efforts to maintain a public
corporate credit rating from Standard & Poor’s
Ratings Service (“S&P”) and a public corporate
family rating from Moody’s Investors Service,
Inc. (“Moody’s”), in each case with respect to
the Borrower, and a rating of the Senior
Facilities by each of S&P and Moody’s;
compliance with laws (including OFAC rules and
regulations); inspection of books and
properties; hedging arrangements satisfactory to
the Agent; further assurances; payment of taxes;
and, consummation as promptly as practicable
following





 Senior Facilities Term Sheet




A-10









 






	 	 	 	 	 
	 

	 	 	 	the Closing Date, of the Second-Step
Merger.
	 
	 	 	 	 
	Negative Covenants:

	 	 	 	To be reasonably specified by the Agent (to be
applicable to the Borrower and its
subsidiaries), including, without limitation,
limitations on dividends on, and redemptions and
repurchases of, equity interests and other
restricted payments; limitations on prepayments,
redemptions and repurchases of debt (other than
loans under the Senior Facilities); limitations
on liens (other than liens on margin stock to
the extent necessary to comply with margin
regulations) and sale-leaseback transactions;
limitations on loans and investments;
limitations on debt, guarantees and hedging
arrangements (other than Permitted ARS
Borrowings); limitations on mergers,
acquisitions and asset sales (which will permit
sales of margin stock for fair value and for
cash, so long as the proceeds thereof are
invested by the Borrower in cash or cash
equivalents); limitations on transactions with
affiliates; limitations on changes in business
conducted by the Borrower and its subsidiaries;
limitations on restrictions on ability of
subsidiaries to pay dividends or make
distributions; limitations on amendments of debt
and other material agreements; and limitations
on capital expenditures.
	 
	 	 	 	 
	Selected Financial 

Covenants:

	 	 	 	Usual for facilities and transactions of this
type (with financial definitions, levels and
measurement periods to be agreed upon),
including, without limitation: (a) maximum
ratios of Total Debt to EBITDA; and (b) minimum
interest coverage ratios.
	 
	 	 	 	 
	Events of Default:

	 	 	 	To be reasonably specified by the Agent relating
to the Borrower and its subsidiaries (subject,
where appropriate, to thresholds and grace
periods to be agreed upon), including, without
limitation, nonpayment of principal, interest or
other amounts; violation of covenants;
incorrectness of representations and warranties
in any material respect; cross default and cross
acceleration; bankruptcy; material judgments;
ERISA events; actual or asserted invalidity of
guarantees or security documents; and Change of
Control (to be defined). For the avoidance of
doubt, except in the case of a Negotiated
Transaction, any change of control defaults
arising under any indebtedness of the Company or
any subsidiary of the Company as a direct result
of the consummation of the Tender Offer shall
not constitute a default or event of default
under the Senior Facilities until the expiration
of a cure period to be agreed.
	 
	Voting:

	 	 	 	Amendments and waivers of the
definitive credit 





 Senior Facilities Term Sheet




A-11









 






	 	 	 	 	 
	 

	 	 	 	documentation will require the approval of
Lenders holding more than 50% of the aggregate
amount of the loans and commitments under the
Senior Facilities (with certain amendments and
waivers also requiring class votes), except that
the consent of each Lender shall be required
with respect to, among other things,
(a) increases in the commitment of such Lender,
(b) reductions of principal, interest or fees
payable to such Lender, (c) extensions of final
maturity or scheduled amortization of the loans
or commitments of such Lender and (d) releases
of all or substantially all of the value of the
Guarantees, or all or substantially all of the
Collateral.
	 
	 	 	 	 
	Cost and Yield Protection:

	 	 	 	Usual for facilities and transactions of this
type, including customary tax gross-up
provisions.
	 
	 	 	 	 
	Assignments and
Participations:

	 	 	 	The Lenders will be permitted to assign (a)
loans and commitments under the Term Facilities
without the consent of the Borrower; provided
that the Agent shall use its commercially
reasonable efforts to provide notice of any such
assignment to the Borrower and (b) loans and
commitments under the Revolving Facility with
the consent of the Borrower, the Swingline
Lender and the Issuing Bank, in each case not to
be unreasonably withheld or delayed; provided
that such consent of the Borrower shall not be
required (i) if such assignment is made to
another Lender or an affiliate or approved fund
of a Lender, (ii) during the primary syndication
of the loans and commitments under the Senior
Facilities to persons identified by the Agent or
any Joint Arranger to the Borrower on or prior
to the Closing Date or (iii) after the
occurrence and during the continuance of an
event of default. All assignments will also
require the consent of the Agent, not to be
unreasonably withheld or delayed. Each
assignment will be in an amount of an integral
multiple of $1,000,000. Assignments will be by
novation and will not be required to be pro rata
between the Senior Facilities.
	 
	 	 	 	 
	 

	 	 	 	The Lenders will be permitted to sell
participations in loans and commitments without
restriction. Voting rights of participants
shall be limited to matters in respect of (a)
increases in commitments of such participant,
(b) reductions of principal, interest or fees
payable to such participant, (c) extensions of
final maturity or scheduled amortization of the
loans or commitments in which such participant
participates and (d) releases of all or
substantially all of the value of the
Guarantees, or all or substantially all of the
Collateral.





 Senior Facilities Term Sheet




A-12









 






	 	 	 	 	 
	Expenses and Indemnification:

	 	 
	 	The Borrower will indemnify the Joint Arrangers,
the Agent, the Syndication Agent, the
Documentation Agent, the Lenders, the Issuing
Bank, the Swingline Lender, their respective
affiliates, successors and assigns and the
officers, directors, employees, agents,
advisors, controlling persons and members of
each of the foregoing (each, an “Indemnified
Person”) and hold them harmless from and against
all costs, expenses (including reasonable fees,
disbursements and other charges of counsel) and
liabilities of such Indemnified Person arising
out of or relating to any claim or any
litigation or other proceeding (regardless of
whether such Indemnified Person is a party
thereto and regardless of whether such matter is
initiated by a third party or by the Borrower,
the Company or any of their respective
shareholders or affiliates) that relates to the
Transactions, including the financing
contemplated hereby, the Acquisition or any
transactions in connection therewith, provided
that no Indemnified Person will be indemnified
for any cost, expense or liability to the extent
determined in the final, non-appealable judgment
of a court of competent jurisdiction to have
resulted primarily from its gross negligence or
willful misconduct. In addition, all
out-of-pocket expenses (including, without
limitation, fees, disbursements and other
charges of counsel) of the Joint Arrangers, the
Agent, the Syndication Agent, the Documentation
Agent, the Issuing Bank, the Swingline Lender
and the Lenders for enforcement costs and
documentary taxes associated with the Senior
Facilities will be paid by the Borrower.
	 
	 	 	 	 
	Governing Law and Forum:

	 	 	 	New York.
	 
	 	 	 	 
	Counsel to the Agent
and the Lead Arrangers:

	 	 	 	Davis Polk & Wardwell.






Senior Facilities Term Sheet





A-13











 





ANNEX I




	 	 	 
	Interest Rates:

	 	If, on the Closing Date, the Ratings
Condition is satisfied, the interest rates
under the Senior Facilities will be as
follows:
	 
	 	 
	 

	 	Revolving Facility and Term Loan A Facility 
	 
	 	 
	 

	 	At the option of the Borrower, (i) 4.00% plus
the greater of (A) Adjusted LIBOR and (B)
3.00% or (ii) 3.00% plus the greater of (A)
ABR and (B) 4.00%.
	 
	 	 
	 

	 	 Term Loan B Facility 
	 
	 	 
	 

	 	At the option of the Borrower, (i) 4.50% plus
the greater of (A) Adjusted LIBOR and (B)
3.00% or (ii) 3.50% plus the greater of (A)
ABR and (B) 4.00%.
	 
	 	 
	 

	 	If, on the Closing Date, the Ratings
Condition is not satisfied, the interest
rates under the Senior Facilities will be as
follows:
	 
	 	 
	 

	 	 Revolving Facility and Term Loan A Facility 
	 
	 	 
	 

	 	At the option of the Borrower, (i) 4.25% plus
the greater of (A) Adjusted LIBOR and (B)
3.00% or (ii) 3.25% plus the greater of (A)
ABR and (B) 4.00%.
	 
	 	 
	 

	 	Term Loan B Facility 
	 
	 	 
	 

	 	At the option of the Borrower, (i) 4.75% plus
the greater of (A) Adjusted LIBOR and (B)
3.00% or (ii) 3.75% plus the greater of (A)
ABR and (B) 4.00%.
	 
	 	 
	 

	 	The Borrower may elect interest periods of 1,
2, 3, 6 or (if available to all lenders) 9
months for Adjusted LIBOR borrowings.
	 
	 	 
	 

	 	Calculation of interest shall be on the basis
of the actual days elapsed in a year of 360
days (or 365 or 366 days, as the case may be,
in the case of ABR loans based on the Prime
Rate) and interest shall be payable at the
end of each interest period and, in any
event, at least every three months.
	 
	 	 
	 

	 	ABR is the Alternate Base Rate, which is the
higher of CS’s Prime Rate and the Federal
Funds Effective Rate plus 1/2 of 1.0%.
	 
	 	 
	 

	 	Adjusted LIBOR will at all times include
statutory reserves.
	 
	 	 
	Letter of Credit
Fees:

	 	A per annum fee equal to the spread over
Adjusted LIBOR under the Revolving Facility
will accrue on the







Senior Facilities Term Sheet

Annex I-1




 









 






2



	 	 	 
	 

	 	aggregate face amount of
outstanding letters of credit under the
Revolving Facility, payable in arrears at the
end of each quarter and upon the termination
of the Revolving Facility, in each case for
the actual number of days elapsed over a
360-day year. Such fees shall be distributed
to the Lenders participating in the Revolving
Facility pro rata in accordance with the
amount of each such Lender’s Revolving
Facility commitment. In addition, the
Borrower shall pay to the Issuing Bank, for
its own account, (a) a fronting fee equal to
a percentage per annum to be agreed upon of
the aggregate face amount of outstanding
letters of credit, payable in arrears at the
end of each quarter and upon the termination
of the Revolving Facility, calculated based
upon the actual number of days elapsed over a
360-day year, and (b) customary issuance and
administration fees.
	 
	 	 
	Commitment Fees:

	 	0.50% per annum on the undrawn portion of the
commitments in respect of the Revolving
Facility, payable quarterly in arrears after
the Closing Date and upon the termination of
the commitments, calculated based on the
number of days elapsed in a 360-day year.
	 
	 	 
	Delayed Draw
Commitment Fee:

	 	With respect to any Term Facility, a rate per
annum equal to the interest rate margin
applicable to loans made under such Term
Facility, on the undrawn portion of the
commitments under such Term Facility, payable
quarterly in arrears after the Closing Date
and upon termination of the commitments under
the applicable Term Facility, calculated
based on the number of days elapsed in a
360-day year.







Senior Facilities Term Sheet

Annex I-2





 











 





EXHIBIT B




PROJECT ALBERT

$775,000,000 Senior Secured Credit Facilities

Summary of Additional Conditions Precedent1




     A. Conditions to Closing and Initial Borrowing: The initial borrowing under the Senior
Facilities shall be subject to the following additional conditions precedent (the date of such
initial borrowing, the “Closing Date”):



     1. (a) the definitive documents to be filed with the Securities and Exchange Commission with
respect to the commencement of the Tender Offer shall have been provided to the Joint Arrangers
prior to the commencement of the Tender Offer (or, in the case of any amendments, supplements or
other modifications that are subsequently filed, prior to the filing thereof), and the terms and
conditions thereof and documentation relating thereto (the “Tender Offer Documentation”) shall be
in form and substance reasonably satisfactory to the Joint Arrangers (it being understood that the
Tender Offer Documentation dated September 12, 2008, as extended on October 13, 2008, as amended to
reflect the changes thereto set forth in the Final Draft Merger Agreement (defined below), is in
form and substance satisfactory to the Joint Arrangers) and shall be in full force and effect, (b)
the Tender Offer Documentation shall not have been altered, amended or otherwise changed or
supplemented, in each case in any respect that could reasonably be expected to be materially
adverse to the rights or interests of the Agent or the Lenders or the ability of the Joint
Arrangers to syndicate the Senior Facilities, and no condition thereto shall have been waived,
altered, amended or otherwise changed or supplemented, in each case without the prior written
consent of the Joint Arrangers (such consent not to be unreasonably withheld or delayed), (c) all
material aspects of the Tender Offer shall have been consummated in accordance with applicable laws
and the description thereof in the Tender Offer Documentation, (d) the offer price in the Tender
Offer shall not exceed an amount to be mutually agreed upon by the Joint Arrangers and the
Borrower, and (e) Merger Sub shall have accepted for payment, pursuant to the Tender Offer, a
number of shares of common stock of the Company (i) equal to at least a majority of the total
number of shares of common stock of the Company and (ii) representing at least a majority of the
combined voting power of all equity securities of the Company, in each case on a fully diluted
basis (the “Minimum Acceptance Condition”).



     2. All shareholder rights plans, “poison pill” or any similar plans or charter or by-law
provisions and all anti-takeover or similar statutes, including Section 203 of the Delaware General
Corporations Law, are or will be invalid or inapplicable to the acquisition of shares pursuant to
the Acquisition and to the Borrower, the Company, Merger Sub and their affiliates.



     3. All amounts due or outstanding in respect of the Existing Debt shall have been (or
substantially simultaneously with the closing under the Senior Facilities shall be) paid in full,
all commitments (if any) in respect thereof terminated and all guarantees (if any) therefor and
security (if any) thereof discharged and released. After giving effect to the Transactions and the
other transactions contemplated hereby, the Borrower and its subsidiaries shall have outstanding no
indebtedness or preferred stock other than (a) the loans and other extensions of credit under the
Senior Facilities, (b) the Borrower’s Convertible Notes; (c) any Permitted ARS Borrowing, (d) other
than in the case of a Negotiated Transaction, prior to the Second-Step Merger,





 




			
	1	 	All capitalized terms used but not defined herein have
the meanings given to them in the Commitment Letter to which this Exhibit B is
attached, including Exhibit A thereto.





Senior Facilities Term Sheet




B-1









 







indebtedness of the Company and its subsidiaries and (e) other limited indebtedness to be
agreed upon.




     4. The Joint Arrangers shall have received (a) U.S. GAAP audited consolidated balance sheets
and related statements of income, stockholders’ equity and cash flows of the Borrower and the
Company for the 2005, 2006 and 2007 fiscal years (and, to the extent available, the related
unaudited consolidating financial statements) and (b) U.S. GAAP unaudited consolidated and (to the
extent available) consolidating balance sheets and related statements of income, stockholders’
equity and cash flows of (i) the Borrower and, with respect to a Negotiated Transaction or, to the
extent available, the Company, for each subsequent fiscal quarter ended 30 days before the Closing
Date and (ii) the Borrower and, with respect to a Negotiated Transaction, or, to the extent
available, the Company, for each fiscal month after the most recent fiscal quarter for which
financial statements were received by the Joint Arrangers as described above and ended 30 days
before the Closing Date, which financial statements shall not be materially inconsistent with the
financial statements or forecasts previously provided to the Joint Arrangers (it being agreed that
the financial statements provided to the Joint Arrangers prior to the date of the Commitment Letter
are not materially inconsistent with the financial statements or forecasts previously provided to
the Joint Arrangers). There shall not have been any material change to the capital stock of the
Borrower or the Company outstanding as of the date hereof.



     5. The Joint Arrangers shall have received a pro forma consolidated balance sheet and related
pro forma consolidated statements of income and cash flows of the Borrower as of and for the
twelve-month period ending on the last day of the four-fiscal quarter period ended at least 30 days
before the Closing Date, prepared after giving effect to the Transactions as if the Transactions
had occurred as of such date (in the case of such balance sheet) or at the beginning of such period
(in the case of such other financial statements), which financial statements shall not be
materially inconsistent with the forecasts previously provided to the Joint Arrangers (it being
agreed that the pro forma financial statements provided to the Joint Arrangers prior to the date of
the Commitment Letter are not materially inconsistent with the forecasts previously provided to the
Joint Arrangers).



     6. The Joint Arrangers shall be satisfied, in their reasonable judgment, that the Borrower’s
consolidated EBITDA (to be defined to exclude “milestone payments”) for the four-fiscal quarter
period ended at least 30 days prior to the Closing Date (excluding EBITDA of the Company and its
subsidiaries) shall not be less than $500,000,000.



     7. The Agent shall have received a certificate from the chief financial officer of the
Borrower certifying that the Borrower and its subsidiaries, on a consolidated basis after giving
effect to the Transactions and the other transactions contemplated hereby, are solvent.



     8. All requisite governmental authorities and third parties shall have approved or consented
to the Transactions and the other transactions contemplated hereby to the extent required (except
to the extent such approvals or consents are not material to the Transaction or the other
transactions contemplated hereby), all applicable appeal periods shall have expired and there shall
be no litigation, governmental, administrative or judicial action, actual or threatened, that could
reasonably be expected to restrain, prevent or impose materially burdensome conditions on the
Transactions or the other transactions contemplated hereby. Without limiting the foregoing, the
waiting periods under the Hart-Scott-Rodino Antitrust Improvement Act 1976 (as amended, the “HSR
Act”) shall have expired or have been terminated.



Senior Facilities Term Sheet




B-2









 





     9. The Borrower shall have received a public corporate credit rating of B+ or higher by S&P
and a public corporate family rating of B1 or higher by Moody’s, in each case after giving effect
to the Transactions.



     10. The Joint Arrangers shall have received, at least five business days prior to the Closing
Date, all documentation and other information required by regulatory authorities under applicable
“know your customer” and anti-money laundering rules and regulations, including without limitation
the PATRIOT Act.



     B. Conditions to Subsequent Borrowings for Second-Step Merger. The borrowing under the Term
Facilities in connection with the consummation of any Second-Step Merger shall be subject to the
following conditions precedent:



     1. After giving effect to the Second-Step Merger, the Company and its subsidiaries shall have
outstanding no indebtedness or preferred stock other than limited indebtedness to be agreed upon
(including indebtedness contemplated by the next sentence). Except as provided under “Security” in
Exhibit A to the Commitment Letter, (a) the Company and its domestic subsidiaries that are required
to become Guarantors shall have executed and delivered customary new or joinder documentation with
respect to the definitive documentation for the Senior Facilities, including collateral documents
and (b) the Lenders shall have received (x) additional legal opinions, in form and substance
similar to those delivered with respect to the initial borrowing, with respect to such additional
Guarantors and collateral and (y) customary lien and judgment searches with respect to the Company
and its subsidiaries.



     2. All requisite governmental authorities and third parties shall have approved or consented
to the Transactions and the other transactions contemplated hereby to the extent required (except
to the extent such approvals or consents are not material to the Transaction or the other
transactions contemplated hereby), all applicable appeal periods shall have expired and there shall
be no litigation, governmental, administrative or judicial action, actual or threatened, that could
reasonably be expected to restrain, prevent or impose materially burdensome conditions on the
Transactions or the other transactions contemplated hereby. Without limiting the foregoing, the
waiting periods under the HSR Act shall have expired or been terminated.



     3. The terms and conditions of the Merger Agreement (if any), and documentation relating
thereto, shall be in form and substance reasonably satisfactory to the Joint Arrangers (it being
understood that the final draft Merger Agreement and Disclosure Schedule dated November 23 , 2008
delivered to the Joint Lead Arrangers on or prior to the date of the Commitment Letter (the “Final
Draft Merger Agreement”) is in form and substance satisfactory to the Joint Arrangers); and shall
be in full force and effect. The Merger Agreement (if any) shall not have been altered, amended or
otherwise changed or supplemented, in each case in any respect that could reasonably be expected to
be materially adverse to the rights or interests of the Agent or the Lenders or the ability of the
Joint Arrangers to syndicate the Senior Facilities, and no condition thereto shall have been
waived, altered, amended or otherwise changed or supplemented, in each case without the prior
written consent of the Joint Arrangers (such consent not to be unreasonably withheld or delayed).
The Second-Step Merger shall be consummated simultaneously with such borrowing under the Senior
Facilities in accordance with applicable laws and on terms described in the Merger Agreement (if
any).



     4. All accrued fees and expenses of the Agent, the Joint Arrangers and the Lenders shall have
been paid.




Senior Facilities Term Sheet



B-3









 





     5. No uncured payment default or bankruptcy default under any of the definitive documentation
for the Senior Facilities shall exist, and the representation and warranties related to the
Borrower’s and its material subsidiaries’ existence and good standing, noncontravention,
enforceability, compliance with margin stock rules and the Investment Company Act of 1940 shall be
correct.



Senior Facilities Term Sheet





B-4