CREDIT AGREEMENT among AUXILIUM PHARMACEUTICALS, INC., as Borrower, the Lenders from Time to Time Party Hereto, MORGAN STANLEY SENIOR FUNDING, INC., as Administrative Agent, Collateral Agent and as Syndication Agent and MORGAN STANLEY SENIOR FUNDING,...

Exhibit 10.1

Execution Version

CREDIT AGREEMENT

among

AUXILIUM PHARMACEUTICALS, INC.,

as Borrower,

the Lenders
from Time to Time Party Hereto,

▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC.,
as Administrative Agent, Collateral Agent
and as Syndication Agent

and

▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC.,
as Sole Lead Arranger and Sole Bookrunner

Dated as of April 26, 2013

TABLE OF CONTENTS

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SCHEDULES:

EXHIBITS:

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THIS CREDIT AGREEMENT, dated as of April 26, 2013, among AUXILIUM PHARMACEUTICALS, INC., a Delaware corporation (the “Borrower”), the financial institutions or entities from time to time parties to this Agreement as lenders (the “Lenders”), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC., as administrative agent (in such capacity, and together with its successors and assigns in such capacity, the “Administrative Agent”) and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC., as collateral agent (in such capacity, and together with its successors and assigns in such capacity, the “Collateral Agent”).

WHEREAS, pursuant to the Merger Agreement, Opal Acquisition, LLC, a Delaware limited liability company (“Merger Sub”), a wholly owned direct Subsidiary of the Borrower will merge (the “Merger”) with and into Actient Holdings LLC, a Delaware limited liability company (the “Target”) with the Target surviving as a wholly owned direct Subsidiary of the Borrower and GTCR/Actient Holdings/B Corp., a Delaware corporation (the “Blocker Corp.”), the shares of which will also be acquired by the Borrower, each as more fully set forth in the Merger Agreement (it being understood and agreed that, on the Closing Date, Blocker Corp. will be merged with and into the Borrower and with the Borrower as the surviving corporation);

WHEREAS, in connection with the transactions contemplated by the Merger Agreement, the Borrower has requested that the Lenders make available the Term Commitments and the Term Loans on the Closing Date to finance the Merger, to pay and redeem all existing Indebtedness under the Existing Credit Agreements and release all security interests with respect thereto (the “Refinancing Transaction”) and to pay related fees and expenses; and

WHEREAS, the Lenders are willing to make available the Term Commitments for such purposes on the terms and subject to the conditions set forth in this Agreement.

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

SECTION 1.         DEFINITIONS

1.1                               Defined Terms.  As used in this Agreement, the terms listed in this Section 1.1 shall have the respective meanings set forth in this Section 1.1.

“ABR”:  a fluctuating interest rate per annum in effect from time to time, which rate per annum shall at all times be equal to the highest of (a) the rate of interest published by the Wall Street Journal, from time to time, as the “U.S. Prime Rate,” (b) ½ of 1% per annum above the Federal Funds Effective Rate and (c) the LIBOR Rate for an Interest Period of one month as of the beginning of such day plus 1.00%, as adjusted to conform to changes as of the opening of business on the date of any such change of the LIBOR Rate.

“ABR Loans”:  Term Loans the rate of interest applicable to which is based upon the ABR.

“Acquired Business” the Target and its Affiliates and Subsidiaries acquired in connection with the Merger.

“Administrative Agent”:  as defined in the preamble to this Agreement.

“Administrative Agent Parties”:  as defined in Section 10.2(c).

“Affected Lender”:  as defined in Section 3.13.

“Affiliate”: as to any Person, any other Person that, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person.  For purposes of this definition, “control” of a Person means the possession, direct or indirect, of the power to direct or cause the direction of management or policies of a Person, whether through ownership of securities, by contract or otherwise; provided, however, that, for purposes of Section 7.8, the term “Affiliate” shall also include (i) any person that directly or indirectly owns more than 10% of any class of Capital Stock of the person specified or (ii) any person that is an officer or director of the person specified.

“Agent Related Parties”:  the Administrative Agent, the Collateral Agent, and any of their respective Affiliates, officers, directors, employees, agents, advisors or representatives.

“Agents”: the collective reference to the Administrative Agent, the Collateral Agent, the Lead Arranger and the Syndication Agent.

“Agreement”: this Credit Agreement.

“Anti-Terrorism Laws”: Executive Order No. 13224, the Patriot Act, the laws comprising or implementing the Bank Secrecy Act and the laws administered by the United States Treasury Department’s Office of Foreign Asset Control (each as from time to time in effect).

“Applicable Margin”:  3.75% for LIBOR Rate Loans and 2.75% for ABR Loans.

“Approved Fund”:  with respect to any Lender, any Person (other than a natural person) that is engaged in making, purchasing, holding or otherwise investing in commercial loans, or similar extensions of credit in the ordinary course and is administered or managed by (a) such Lender, (b) an Affiliate of such Lender, or (c) an entity or an Affiliate of an entity that administers or manages such Lender.

“Asset Sale”:  any Disposition of Property or series of related Dispositions of Property, including, without limitation, any issuance of Capital Stock of any Subsidiary of the Borrower to a Person other than to any Group Member (excluding in any case any such Disposition permitted by Section 7.4) that yields gross proceeds to any Group Member (valued at the initial principal amount thereof in the case of non-cash proceeds consisting of notes or other debt securities and valued at fair market value in the case of other non-cash proceeds) in excess of $2,500,000.

“Assignee”:  as defined in Section 10.6(b).

“Assignment and Assumption”:  an assignment and assumption entered into by a Lender and an Eligible Assignee and accepted by the Administrative Agent, and, if applicable,

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the Borrower, substantially in the form of Exhibit A.

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

“Attributable Indebtedness”: when used with respect to any Sale and Leaseback Transaction, as at the time of determination, the present value (discounted at a rate equivalent to the Borrower’s then-current weighted average cost of funds for borrowed money as at the time of determination, compounded on a semi-annual basis) of the total obligations of the lessee for rental payments during the remaining term of the lease included in any such Sale and Leaseback Transaction.

“Available Amount”:  at any time after the Closing Date (the “Reference Date”), an amount, to the extent Not Otherwise Applied, not less than zero in the aggregate, determined on a cumulative basis equal to, without duplication:

(a)                                 $30,000,000; plus

(b)                                 the aggregate amount of Net Cash Proceeds of any capital contributions (that is converted or exchanged for Qualified Capital Stock) or issuances of Qualified Capital Stock (or for Qualified Capital Stock issued upon conversion of debt securities) received or made by the Borrower (other than Section 7.5(d)) since the Closing Date and on or prior to the Reference Date; plus

(c)                                  (x) the cumulative amount of Excess Cash Flow for all fiscal years of the Borrower commencing with the Borrower’s fiscal year ending December 31, 2013 (inclusive of Excess Cash Flow for the Excess Cash Flow Payment Period from the Closing Date to December 31, 2013)after the Closing Date minus (y) the portion of such Excess Cash Flow that has been (or will be) after the Closing Date and on or prior to the Reference Date applied to the prepayment or repayment of Loans in accordance with Section 3.2; plus

(d)                                 an amount equal to any returns in cash and Cash Equivalents (including dividends, interest, distributions, returns of principal, profits on sale, repayments, income and similar amounts) actually received by the Borrower or any Restricted Subsidiary in respect of any Investments made by the Borrower or any Restricted Subsidiary since the Closing Date pursuant to Section 7.6(s); plus

(e)                                  the net reduction in Investments in any Person (other than the Borrower or any Restricted Subsidiary) resulting from dividends, repayments of loans or advances or other transfers of assets subsequent to the Closing Date, in each case to the Borrower or any Restricted Subsidiary from such Person; plus

(f)                                   in the event that any Unrestricted Subsidiary has been re-designated as a Restricted Subsidiary or has been merged, consolidated or amalgamated with or into, or transfers or conveys its assets to, or is liquidated into, the Borrower or a Restricted Subsidiary, the fair market value of the Investments of the Borrower and the Restricted Subsidiaries in such Unrestricted Subsidiary at the time of such redesignation, combination or transfer (or of the assets transferred or conveyed, as applicable) so long as

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such Investments were originally made pursuant to Section 7.6(s); plus

(g)                                  without duplication of any amounts that otherwise increased the amount available for Investments pursuant to Section 7.6(s) and to the extent not included in clause (b) above, 100% of the aggregate amount received by the Borrower or any Restricted Subsidiary in cash and Cash Equivalents from:

(A)                               the sale (other than to the Borrower or any Restricted Subsidiary) of any Equity Interests of an Unrestricted Subsidiary or any minority Investments, or

(B)                               any dividend or other distribution (including any interest, returns of principal, repayments and similar payments) by an Unrestricted Subsidiary or received in respect of any minority Investments; less

(h)                                 any usage of such Available Amount pursuant to Sections 7.5(f), 7.6(s) and 7.7(a)(i) prior to or on the Reference Date.

“Available Amount Condition”:  after giving effect to any usage of the Available Amount, the Total Leverage Ratio, on a Pro Forma Basis, as of the last day of the period of four (4) fiscal quarters most recently completed for which financial statements were required to have been delivered pursuant to Section 6.1 shall be no greater than the Total Leverage Ratio as in effect on the Closing Date (as calculated, on a Pro Forma Basis for the Transactions, as of the date of the then last ended fiscal quarter occurring prior to the Closing Date).

“Benefited Lender”:  as defined in Section 10.7(a).

“Blocked Person”:  as defined in Section 4.22(c).

“Blocker Corp.”:  as defined in the recitals to this Agreement.

“Board”: the Board of Governors of the Federal Reserve System of the United States (or any successor).

“Borrower”: as defined in the preamble to this Agreement.

“Borrowing Date”:  any Business Day specified by the Borrower as a date on which the Borrower requests the relevant Lenders to make Loans hereunder.

“Business Day”:  a day other than a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to close; provided, that with respect to notices and determinations in connection with, and payments of principal and interest on, LIBOR Rate Loans, such day is also a day for trading by and between banks in Dollar deposits in the interbank eurodollar market.

“Capital Expenditures”:  for any period, with respect to any Person, the aggregate of all expenditures by such Person and its Subsidiaries for the acquisition or leasing (pursuant to a capital lease) of fixed or capital assets or additions to equipment (including replacements,

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capitalized repairs and improvements during such period) that should be capitalized under GAAP on a consolidated balance sheet of such Person and its Subsidiaries, excluding expenditures financed with any Reinvestment Deferred Amount to the extent otherwise not taken into account in determining Consolidated Net Income.

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

“Capital Stock”:  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) and any and all warrants, rights or options to purchase any of the foregoing; provided that Capital Stock shall not include any debt securities that are convertible into or exchangeable for any of the foregoing Capital Stock.

“Cash Collateralize”:  in respect of an obligation, provide and pledge cash collateral in Dollars, or provide a letter of credit issued by a person reasonably satisfactory to the Administrative Agent, pursuant to documentation in form and substance reasonably satisfactory to the Administrative Agent (and “Cash Collateralization” has a corresponding meaning).

“Cash Equivalents”:

(a)                                 Dollars (and such other currency that is approved by the Administrative Agent) held in the ordinary course of business of the relevant Person;

(b)                                 marketable direct obligations issued by, or unconditionally guaranteed by, the United States Government or issued by any agency thereof and backed by the full faith and credit of the United States, in each case maturing within one (1) year from the date of acquisition;

(c)                                  certificates of deposit, time deposits, eurodollar time deposits or overnight bank deposits having maturities of one (1) year or less from the date of acquisition issued by any commercial bank organized under the laws of the United States or any state thereof having combined capital and surplus of not less than $500,000,000;

(d)                                 commercial paper of an issuer rated at least A-1 by S&P or P-1 by ▇▇▇▇▇’▇, or carrying an equivalent rating by a nationally recognized rating agency, if both of the two named rating agencies cease publishing ratings of commercial paper issuers generally, and maturing within one (1) year from the date of acquisition;

(e)                                  repurchase obligations of any commercial bank satisfying the requirements of clause (b) of this definition, having a term of not more than thirty (30) days, with respect to securities issued or fully guaranteed or insured by the United States government;

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(f)            securities with maturities of one year or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States, by any political subdivision or taxing authority of any such state, commonwealth or territory or by any foreign government, the securities of which state, commonwealth, territory, political subdivision, taxing authority or foreign government (as the case may be) are rated at least A by S&P or A by ▇▇▇▇▇’▇;

(g)                                  securities with maturities of one (1) year or less from the date of acquisition backed by standby letters of credit issued by any commercial bank satisfying the requirements of clause (b) of this definition; or

(h)                                 shares of money market mutual or similar funds which have portfolios consisting of substantially all assets satisfying the requirements of clauses (a) through (f) of this definition or money market funds that (i) comply with the criteria set forth in Securities and Exchange Commission Rule 2a-7 under the Investment Company Act of 1940, as amended and (ii) are rated AAA by S&P and Aaa by ▇▇▇▇▇’▇.

“Certain Funds Paragraph”:  as defined in Section 5.1.

“CFC”:  any Subsidiary of the Borrower that is a “controlled foreign corporation” within the meaning of Section 957 of the Code, is owned by a “controlled foreign corporation” within the meaning of Section 957 of the Code or substantially all of the assets of which constitute stock of one or more “controlled foreign corporations” within the meaning of Section 957 of the Code.

“Change in Control”:  an event or series of events by which:

(a)                                 at any time, any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act, but excluding any employee benefit plan of such Person or its Subsidiaries and any Person acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, directly or indirectly, of thirty-five percent (35%) or more of the equity securities of the Borrower entitled to vote for members of the board of directors or equivalent governing body of the Borrower on a fully-diluted basis; or

(b)                                 at any time after the Closing Date, during any period of twelve (12) consecutive months, a majority of the members of the board of directors or other equivalent governing body of the Borrower cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election, nomination or appointment to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body; or

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(c)                                  any change of control (or similar event, however denominated) with respect to any Loan Party shall occur under and as defined in the Convertible Notes Documents or any indenture or agreement with respect to any other outstanding Indebtedness to which any Loan Party is a party the principal amount of which exceeds $50,000,000.

“Closing Date”:  the date on which the conditions precedent set forth in Section 5.1 shall have been satisfied and the initial funding occurs.

“Closing Date Material Adverse Effect”: any change, effect, circumstance, fact, event, occurrence or development that, individually or in the aggregate, is, or would reasonably be expected to be, materially adverse to (a) the assets, properties, results of operations, liabilities, business or financial condition of the Target and its Subsidiaries taken as a whole or (b) the ability of the Target to consummate the transactions contemplated by the Merger Agreement; provided, however, that with respect to the foregoing clause (a), none of the following shall be deemed in themselves, either alone or in combination, to constitute, and none of the following shall be taken into account in determining whether there has been or will be, a Closing Date Material Adverse Effect: any change, effect, circumstance, fact, event, occurrence or development attributable to (i) the announcement or execution of the Merger Agreement (provided, however, that this clause (i) shall not be deemed to apply to Section 4.03(b)Error! Reference source not found. of the Merger Agreement); (ii) conditions generally affecting the industries in which the Target and its Subsidiaries participate, the U.S. economy as a whole or the capital markets in general (including currency fluctuation) or the markets in which the Target and its Subsidiaries operate; (iii) any change in applicable Laws (as defined in the Merger Agreement) or the interpretation thereof; (iv) actions required to be taken under applicable Laws (as defined in the Merger Agreement) or the Merger Agreement by the Target or any Subsidiary thereof; (v) any change in GAAP (as defined in the Merger Agreement) or other accounting requirements or principles or the interpretation thereof; (vi) the failure of the Target or its Subsidiaries to meet or achieve the results set forth in any projection or forecast (provided, that this clause (vi) shall not prevent a determination that any change or effect underlying such failure to meet projections or forecasts has resulted in a Closing Date Material Adverse Effect (to the extent such change or effect is not otherwise excluded from this definition of Closing Date Material Adverse Effect)); or (vii) the commencement, continuation or escalation of a war, material armed hostilities or other material international or national calamity or act of terrorism; provided that, in the case of clauses (ii), (iii), (iv) and (v) above, if such change, effect, circumstance, fact, event, occurrence or development disproportionately affects the Target and its Subsidiaries as compared to other Persons or businesses that operate in the industry in which the Target and its Subsidiaries operate, then the disproportionate aspect of such change, effect, circumstance, fact, event, occurrence or development may be taken into account in determining whether a Closing Date Material Adverse Effect has or will occur.

“Code”:  the Internal Revenue Code of 1986, and the regulations promulgated and rulings issued under it, all as may be amended from time to time.

“Collateral”:  all property of the Loan Parties, now owned or hereafter acquired, upon which a Lien is purported to be created by any Security Document.

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“Collateral Agent”:  as defined in the preamble to this Agreement.

“Commitment”:  the Term Commitment of any Lender.

“Communications”:  as defined in Section 10.2(b).

“Commodity Exchange Act”: the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.

“Confidential Information Memorandum”:  the Confidential Information Memorandum to be furnished to the Lenders in connection with the syndication of the Term Facility no later than May 15, 2013.

“Consolidated Current Assets”:  at any date, all amounts (other than cash and Cash Equivalents) that would, in conformity with GAAP, be set forth opposite the caption “total current assets” (or any like caption) on a consolidated balance sheet of the Loan Parties at such date.

“Consolidated Current Liabilities”:  at any date, all amounts that would, in conformity with GAAP, be set forth opposite the caption “total current liabilities” (or any like caption) on a consolidated balance sheet of the Loan Parties at such date, but excluding the current portion of any Funded Debt, the current portion of interest expense (other than interest expense that is due and unpaid), the current portion of current and deferred Taxes based upon income or profits of the Loan Parties, accruals of any costs or expenses related to restructuring reserves and deferred revenue.

“Consolidated EBITDA”:  for any period, is the sum of (a) the Consolidated Net Income of the Borrower and its Restricted Subsidiaries, calculated on a consolidated basis for such period, without duplication, plus (b) the following, in each case, to the extent deducted (and not added back) in calculating such Consolidated Net Income:

(i)                                     provisions for Taxes based on income or profits or capital, plus franchise or similar taxes and foreign withholding taxes;

(ii)                                  interest expense, amortization or write-off of debt discount and debt issuance costs and commissions, discounts and other fees and charges associated with Indebtedness (including the Term Loans) for such period;

(iii)                               depreciation and amortization expense (including deferred financing fees and costs and amortization in relation to intangible assets);

(iv)                              non-cash stock-based compensation expense for such period;

(v)                                 all extraordinary, unusual or nonrecurring cash expenses, losses and charges for such period (including, without limitation, any severance costs, integration costs, relocation costs, and curtailments or modifications to pension and post-retirement employee benefit plans);

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(vi)                              non-cash purchase accounting adjustments;

(vii)                           costs and expenses incurred in connection with the Transactions;

(viii)                        all customary costs and expenses incurred or paid in connection with Investments (including Permitted Acquisitions) whether or not such Investment is consummated;

(ix)                              the amount of any minority interest expense (or income (loss) allocable to noncontrolling interests) consisting of Subsidiary income attributable to minority equity interests of third parties in any non-wholly-owned Restricted Subsidiary of the Borrower;

(x)                                 all customary costs and expenses incurred in connection with the issuance, prepayment or amendment or refinancing of Indebtedness permitted hereunder or issuance of Capital Stock;

(xi)                              other expenses reducing such Consolidated Net Income which do not represent a cash item in such period (but excluding any such charge which requires an accrual of, or a cash reserve for, anticipated cash charges in any future period);

(xii)                           the aggregate net loss on the Disposition of property (other than accounts (as defined in the Uniform Commercial Code) and inventory) outside the ordinary course of business;

(xiii)                        the amount of net cost savings and synergies projected by the Borrower in good faith as a result of actions taken or committed to be taken (including pursuant to internal procedures) no later than twelve (12) months following the end of such period (calculated on a Pro Forma Basis as though such cost savings and synergies had been realized on the first day of such period), net of the amount of actual benefits realized during such period from such actions; provided that (A) such cost savings and synergies are reasonably identifiable and factually supportable, (B) no cost savings shall be added pursuant to this clause (xiii) to the extent duplicative of any such expenses, costs or charges that are included in clauses (v), (xi) and (xii) above and clause (xv) below with respect to such period, and (C) the benefits resulting therefrom are anticipated by the Borrower to be realized commencing not later than twelve (12) months of such actions having been taken, or having been committed to be taken; provided, further, that the net cost savings and synergies realized in connection with the Transactions shall in no event exceed $20,000,000;

(xiv)                       any expenses or charge for such period to the extent covered by, and actually reimbursed by, the insurer within 180 days with respect to any business interruption insurance or similar insurance of the Borrower or any Restricted Subsidiary in respect thereof;

(xv)                          the actual amount of any restructuring charges, integration and facilities opening costs or other business optimization expenses (including cost and expenses relating to business optimization programs and new systems design and implementation costs) and project start-up costs; provided that no such charges, expenses and costs shall

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be added pursuant to this clause (xv), to the extent they are duplicative of any such expenses, costs or charges that are included in clauses (v), (xi), (xii) and (xiii) above;

(xvi) in each case, solely to the extent that the applicable Hedge Agreement is permitted under this Agreement:  (i) any net unrealized loss (after any offset) resulting in such period from obligations under any Hedge Agreements and the application of Statement of Financial Accounting Standards No. 133; and (ii) any net unrealized loss (after any offset) resulting in such period from currency translation gains or losses including those (x) related to currency remeasurements of Indebtedness and (y) resulting from Hedge Agreements for currency exchange risk;

(xvii)                    costs and expenses in connection with the termination of the Pfizer-Xiapex agreement; and

(xviii)                 any after-tax effect of income (loss) from disposed or discontinued operations and any net after-tax gains or losses on disposal of disposed, abandoned or discontinued operations;

less (c) the following to the extent added in calculating such Consolidated Net Income of the Loan Parties:

(A)                               all interest income for such period,

(B)                               all Tax benefits for such period to the extent not netted in determining the amount for clause (b)(i) above,

(C)                               non-cash purchase accounting adjustments,

(D)                               (i) the aggregate net gain from the Disposition of property (other than accounts (as defined in the Uniform Commercial Code) and inventory) outside the ordinary course of business, (ii) all extraordinary, unusual or nonrecurring gains for such period, and (iii) all non-cash items increasing Consolidated Net Income which do not represent a cash item in such period or any future period (but excluding any such items (x) in respect of which cash was received in a prior period or will be received in a future period or (y) which represent the reversal of any accrual of, or cash reserve for, anticipated cash charges in any prior period);

(E)                                the amount of minority interest income (or income (loss) allocable to noncontrolling interests) consisting of Subsidiary loss attributable to minority equity interests of third parties in any non-wholly owned Restricted Subsidiary of the Borrower; and

(F)                                 in each case, solely to the extent that the applicable Hedge Agreement is permitted under this Agreement:  (i) any net unrealized gain (after any offset) resulting in such period from obligations under any Hedge Agreements and the application of Statement of Financial Accounting Standards No. 133; and (ii) any net unrealized gain (after any offset) resulting in such period from currency translation gains or losses including those (x) related to currency remeasurements of Indebtedness and (y) resulting

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from Hedge Agreements for currency exchange risk.

For the purposes of calculating Consolidated EBITDA for any period of four consecutive fiscal quarters (each, a “Reference Period”) pursuant to any determination hereunder, (x) if at any time during such Reference Period any Group Member shall have made any Asset Sale, the Consolidated EBITDA for such Reference Period shall be reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to the property that is the subject of such Asset Sale for such Reference Period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such Reference Period, in each case assuming the repayment of Indebtedness in connection therewith occurred as of the first day of such Reference Period and (y) if during such Reference Period any Group Member shall have made a Material Acquisition, Consolidated EBITDA for such Reference Period shall be calculated after giving pro forma effect thereto as if such Material Acquisition occurred on the first day of such Reference Period.  For purposes of determining Consolidated EBITDA under this Agreement, Consolidated EBITDA shall be deemed to be $16,441,000, $27,164,000, $14,371,000 and $29,142,000 for the fiscal quarters ended March 31, 2012, June 30, 2012, September 30, 2012 and December 31, 2012, respectively.

As used in this definition only, “Material Acquisition” means the Acquisition (if consummated) and any other acquisition of property or series of related acquisitions of property that constitutes assets comprising all or substantially all of an operating unit of a business or constitutes all or substantially all of the common stock of a Person.

“Consolidated Funded Debt”: at any date, Funded Debt of the Borrower and the Restricted Subsidiaries, determined on a consolidated basis in accordance with GAAP.

“Consolidated Net Income”:  for any period, the consolidated net income (or loss) of the Borrower and the Restricted Subsidiaries, determined on a consolidated basis in accordance with GAAP; provided, that: (a) the undistributed earnings of any Subsidiary of the Borrower that is not a Loan Party or a direct or indirect parent entity of the Borrower to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary is not at the time permitted by the terms of any Contractual Obligation (other than under any Loan Document), its Organizational Documents or Requirement of Law applicable to such Subsidiary shall be excluded provided that, notwithstanding this clause (a), the amount of dividends or distributions or other payments that are actually paid in cash or Cash Equivalents (or to the extent subsequently converted into cash or Cash Equivalents) to the Borrower or a Restricted Subsidiary thereof in respect of such period shall be included; (b) the cumulative effect of a change in accounting principles and changes as a result of the adoption or modification of accounting policies during such period shall be excluded; (c)  effects of adjustments in the inventory, property and equipment, software, goodwill, other intangible assets, in-process research and development, deferred revenue and debt line items in consolidated financial statements pursuant to GAAP resulting from the application of purchase accounting in relation to the Transaction, net of taxes, shall be excluded provided that this clause (c) shall not include the recognition of deferred revenue for any period subsequent to the Closing Date; (d) any after-tax effect of income (loss) from the early extinguishment of (i) Indebtedness, (ii) obligations under any Hedge Agreements or (iii) other derivative instruments, in each case, solely to the extent permitted under this Agreement shall be excluded; (e) any fees, expenses or charges incurred

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during such period, or any amortization thereof for such period, in connection with any Permitted Acquisition, Investment, Disposition, incurrence or repayment of Indebtedness (including such fees, expenses or charges related to the Term Loans), issuance of Qualified Capital Stock, refinancing transaction or amendment or modification of any debt instrument (including any amendment or other modification of the Term Loans and any credit facilities) and including, in each case, any such transaction undertaken but not completed, and any charges or non-recurring merger costs incurred during such period as a result of any such transaction, in each case whether or not successful, in each case, solely to the extent permitted under this Agreement, shall be excluded; (f) the income (or deficit) of any Permitted Joint Venture, except to the extent that any such income is actually received by the Borrower or any Subsidiary Guarantor in the form of dividends or other distributions in respect of equity and (g) the amount of net cash proceeds received by the Borrower and the Restricted Subsidiaries of any business interruption insurance shall be included.

“Consolidated Total Assets”:  as of the date of any determination thereof, total assets of the Borrower and the Restricted Subsidiaries calculated in accordance with GAAP on a consolidated basis as of such date.

“Consolidated Working Capital”:  at any date, the excess of Consolidated Current Assets on such date over Consolidated Current Liabilities on such date.

“Contractual Obligation”:  as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.

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

“Convertible Notes”: the Borrower’s 1.50% Convertible Senior Notes due July 15, 2018.

“Convertible Notes Documents”: the Indenture, dated as of January 30, 2012 (as amended, amended and restated, supplemented or otherwise modified through the Closing Date), among the Borrower and the Trustee (as defined therein), pursuant to which the Convertible Notes were issued and the other agreements and documents governing (including, without limitation, the additional call option transactions, ISDA master agreements, hedge confirmations and warrants entered into in connection with) the Convertible Notes.

“Corporate Family Rating”: an opinion issued by ▇▇▇▇▇’▇ of a corporate family’s ability to honor all of its financial obligations that is assigned to a corporate family as if it had a single class of debt and a single consolidated legal entity structure.

“Corporate Rating”: an opinion issued by S&P of an obligor’s overall financial capacity (its creditworthiness) to pay its financial obligations.

“Default”: any of the events specified in Section 8, whether or not any requirement for the giving of notice, the lapse of time, or both, has been satisfied.

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“Defaulting Lender”:  at any time, any Lender (a) that has failed to comply with its obligations under Section 2.1 of this Agreement (a “funding obligation”), (b) that has notified the Administrative Agent or the Borrower, or has stated publicly, that it will not comply with any such funding obligation hereunder, (c) that has failed to confirm in writing to the Administrative Agent, in response to a written request of the Administrative Agent, that it will comply with its funding obligations hereunder, or (d) with respect to which a Lender Insolvency Event has occurred and is continuing; provided that (i) the Administrative Agent and the Borrower may declare (A) by joint notice to the Lenders that a Defaulting Lender is no longer a “Defaulting Lender” or (B) that a Lender is not a Defaulting Lender if in the case of both clauses (a) and (b) the Administrative Agent and the Borrower each determines, in its reasonable discretion, that (x) the circumstances that resulted in such Lender becoming a “Defaulting Lender” no longer apply or (y) it is satisfied that such Lender will continue to perform its funding obligations hereunder and (ii) a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of voting stock or any other equity interest in such Lender or a parent company thereof by a Governmental Authority or an instrumentality thereof unless such ownership or acquisition results in or provides such Lender with immunity from the jurisdiction of the courts within the United States from the enforcement of judgments, writs of attachment on its assets or permits such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Lender.  The Administrative Agent will promptly send to all parties hereto a notice when it becomes aware that a Lender is a Defaulting Lender.

“Disposition”:  with respect to any Property, any sale, lease, Exclusive License, Sale and Leaseback Transaction, assignment, conveyance, transfer or other disposition thereof.  The terms “Dispose” and “Disposed of” shall have correlative meanings.

“Disqualified Capital Stock”:  any Capital Stock that is not Qualified Capital Stock.

“Dollars” and “$”:  dollars in lawful currency of the United States.

“Domestic Subsidiary”:  any Subsidiary that is a “United States Person,” as defined in the Code, other than a CFC.

“Earn-Out Obligations”:  those certain unsecured obligations of the Borrower or any Restricted Subsidiary arising in connection with any acquisition of assets or businesses permitted under Section 7.6 to the seller of such assets or businesses and the payment of which is dependent on the future earnings or performance of such assets or businesses and contained in the agreement relating to such acquisition or in an employment agreement delivered in connection therewith.

“ECF Percentage”:  50%; provided that, with respect to each fiscal year of the Borrower, commencing with the fiscal year of the Borrower ending December 31, 2013, the ECF Percentage shall be reduced to (a) 25% if the Total Leverage Ratio as of the last day of such fiscal year is less than 4.00 to 1.00 but greater than or equal to 3.00 to 1.00 and (b) 0% if the Total Leverage Ratio as of the last day of such fiscal year is less than 3.00 to 1.00.

“Effective Yield”: as to any tranche of term loans or the Term Loans hereunder or

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under the Loan Documents, the effective yield on such tranche of term loans or the Term Loans, as the case may be, in each case as reasonably determined by the Administrative Agent, taking into account the applicable interest rate margins, interest rate benchmark floors and all fees, including recurring, up-front or similar fees or original issue discount (amortized over the shorter of (x) four years or (y) the weighted average life to maturity of such term loans) payable generally to Lenders making such tranche of term loans or the Term Loans, as the case may be, but excluding any arrangement, structuring or other fees payable in connection therewith that are not generally shared with the lenders thereunder.

“Eligible Assignee”:  any Assignee permitted by and consented to in accordance with Section 10.6(b).

“Engagement Letter”:  that certain Engagement Letter, dated as of the date hereof, between the Borrower and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc.

“Environment”:  ambient air, indoor air, surface water, groundwater, drinking water, land surface and subsurface strata, and natural resources such as wetlands, flora and fauna.

“Environmental Laws”:  any and all applicable foreign, federal, state, local or municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees, requirements of any Governmental Authority or other Requirements of Law (including common law) regulating, relating to or imposing liability or standards of conduct concerning pollution or protection of the Environment, including those relating to use, generation, storage, treatment, transport, Release or threat of Release of Materials of Environmental Concern, or to the protection of human or animal health or safety (including to exposure to Materials of Environmental Concern), as now or may at any time hereafter be in effect.

“ERISA”:  the Employee Retirement Income Security Act of 1974, and the regulations promulgated and rulings issued under it, as all may be amended from time to time.

“ERISA Affiliate”:  any Person that for purposes of Title IV of ERISA is a member of the controlled group of any Group Member, or under common control with any Group Member, within the meaning of Section 414 of the Code.

“ERISA Event”:  (a)(i) the occurrence of a Reportable Event with respect to any Plan; or (ii) the requirements of Section 4043(b) of ERISA apply with respect to a contributing sponsor, as defined in Section 4001(a)(13) of ERISA, of a Plan, and an event described in paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably expected to occur with respect to such Plan within the following 30 days; (b) the application for a minimum funding waiver with respect to a Plan; (c) the provision by the administrator of any Plan of a notice of intent to terminate such Plan, pursuant to Section 4041(a)(2) of ERISA (including any such notice with respect to a plan amendment referred to in Section 4041(e) of ERISA); (d) the cessation of operations at a facility of any Group Member or any ERISA Affiliate in the circumstances described in Section 4062(e) of ERISA; (e) the withdrawal by any Group Member or any ERISA Affiliate from a Multiple Employer Plan during a plan year for which it was a substantial employer, as defined in Section 4001(a)(2) of ERISA; (f) conditions for imposition of a lien under Section 303(k) of ERISA shall have been met with respect to any Plan; (g) a

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determination that any Plan is in “at risk” status (within the meaning of Section 303 of ERISA); or (h) the institution by the PBGC of proceedings to terminate a Plan pursuant to Section 4042 of ERISA, or the occurrence of any event or condition described in Section 4042 of ERISA that constitutes grounds for the termination of, or the appointment of a trustee to administer, such Plan.

“Eurocurrency Reserve Requirements”:  for any day as applied to a LIBOR Rate Loan, the aggregate (without duplication) of the maximum rates (expressed as a decimal fraction) of reserve requirements in effect on such day (including basic, supplemental, marginal and emergency reserves under any regulations of the Board or other Governmental Authority having jurisdiction with respect thereto) dealing with reserve requirements prescribed for eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of the Board) maintained by a member bank of the Federal Reserve System.

“Event of Default”:  any of the events specified in Section 8; provided that any requirement for the giving of notice, the lapse of time, or both, has been satisfied.

“Excess Cash Flow”:  for any fiscal year of the Borrower, the excess, if any, of:

(a)                                 the sum, without duplication, of:

(i)                                     Consolidated Net Income for such fiscal year;

(ii)                                  the amount of all non-cash charges (including depreciation and amortization) deducted in arriving at such Consolidated Net Income;

(iii)                               decreases in Consolidated Working Capital for such fiscal year (excluding any changes in working capital due to the effects of purchase accounting adjustments); minus

(b)                                 the sum, without duplication, of:

(i)                                     the amount of all non-cash credits included in arriving at such Consolidated Net Income and cash charges included in clauses (a) though (f) of the definition of Consolidated Net Income;

(ii)                                  the aggregate amount actually paid by the Borrower and the Restricted Subsidiaries in cash during such fiscal year on account of Capital Expenditures and permitted Investments (including Permitted Acquisitions) to the extent permitted by this Agreement and not financed with the proceeds of Indebtedness;

(iii)                               (x) the aggregate amount of all principal payments of Consolidated Funded Debt (including the Term Loans) and (y) all mandatory prepayments of Loans pursuant to Section 3.2, in each case, of the Borrower and the Restricted Subsidiaries made in cash during such fiscal year to the extent not made in connection with a refinancing of all or any portion of such Indebtedness;

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(iv)                              increases in Consolidated Working Capital for such fiscal year;

(v)                                 cash payments by the Borrower and the Restricted Subsidiaries during such period in respect of long-term liabilities of the Borrower and the Restricted Subsidiaries other than Indebtedness, except to the extent that such payments were financed by the issuance or incurrence of long-term Indebtedness by, or the issuance of Capital Stock by, or the making of capital contributions to, the Borrower or any of its Restricted Subsidiaries or using the proceeds of any Disposition outside the ordinary course of business;

(vi)                              Restricted Payments made by the Borrower in cash to holders of its common equity from Internally Generated Cash;

(vii)                           the amount of cash income Taxes actually paid in such period to the extent they exceed the amount of Tax expense deducted in determining Consolidated Net Income for such period;

(viii)                        fees, expenses or charges paid in cash related to any permitted Investments (including Permitted Acquisitions), the issuance, payment, amendment or refinancing of Indebtedness permitted under Section 7.1 hereof  (including any premium paid in cash during such period in connection with the prepayment, redemption, purchase, defeasance or other satisfaction prior to scheduled maturity of Indebtedness) and the issuance of Capital Stock and Dispositions permitted under Section 7.4 hereof;

(ix)                              Net Cash Proceeds of Intellectual Property Out-Licensing Events for such period with regard to which a Specified Reinvestment Notice has been delivered, for the related Excess Cash Flow Payment Period; provided that, notwithstanding the foregoing, on each Specified Reinvestment Prepayment Date, an amount equal to the Specified Reinvestment Prepayment Amount with respect to the relevant Specified Reinvestment Event shall be added back to Excess Cash Flow for such period; and

(x)                                 without duplication of amounts deducted in prior periods (A) the aggregate consideration required to be paid in cash by a Group Member pursuant to binding contracts (the “Contract Consideration”) entered into prior to or during such period relating to Permitted Acquisitions or (B) any planned cash expenditures by the Borrower or any of the Restricted Subsidiaries relating to Capital Expenditures or acquisitions of intellectual property or restructuring charges, expenses and payments required to be made (the “Planned Expenditures”), in each case to be consummated or made during the period of four consecutive fiscal quarters of the Borrower following the end of such period; provided that, to the extent the aggregate amount of such Permitted Acquisitions, Capital Expenditures or acquisitions of intellectual property actually made during such period of four consecutive fiscal quarters is less than the Contract Consideration and the Planned Expenditures, as applicable, the amount of such shortfall shall be added to the calculation of Excess Cash Flow at the end of such

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period of four consecutive fiscal quarters;

provided that the amounts referenced in clauses (ii), (iii)(y), (v) and (viii) of this paragraph (b) shall not be included in this paragraph (b) and have the effect of reducing Excess Cash Flow to the extent such amounts were funded out of proceeds of Funded Debt.

“Excess Cash Flow Application Date”:  as defined in Section 3.2(c).

“Excess Cash Flow Payment Period”:  (a) with respect to the prepayment required on the first Excess Cash Flow Application Date, the period from the Closing Date to December 31, 2013 (taken as one accounting period) and (b) with respect to the prepayment required on each successive Excess Cash Flow Application Date, the immediately preceding fiscal year of the Borrower.

“Exchange Act”:  the Securities Exchange Act of 1934, as amended.

“Excluded Indebtedness”:  all Indebtedness permitted by Section 7.1.

“Excluded Swap Obligation” with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guarantee of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the Guarantee of such Guarantor or the grant of such security interest becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guarantee or security interest is or becomes illegal.

“Excluded Taxes”:  with respect to any Agent or any Lender on account of any payment to be made by or on account of any obligation of any Loan Party under any Loan Document, (a) Taxes imposed on or measured by its net income or net profits (however denominated), franchise Taxes imposed on it in lieu of net income Taxes and branch profits Taxes, in each case, (i) imposed on it by any jurisdiction (or any political subdivision thereof) (i) as a result of the recipient being organized or having its principal office or, in the case of any Lender, its applicable lending office in such jurisdiction, or (ii) that are Other Connection Taxes or (b) any U.S. federal withholding Tax that is imposed on amounts payable to a Lender under any laws in effect at the time such Lender becomes a party hereto (other than pursuant to an assignment request by any Loan Party under Section 3.13) or designates a new lending office, except to the extent that, in the case where a Lender designated a new lending office, such Lender, or in the case of an assignment, the assignor, was entitled, immediately prior to the time of designation of a new lending office or assignment as the case may be, to receive additional amounts from the Borrower with respect to such Tax pursuant to Section 3.10; (c) any Taxes attributable to such Lender’s failure to comply with Section 3.10(e) and (f); and (d) any United States federal withholding Tax that is imposed pursuant to FATCA.

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“Exclusive License”:  any license by a Person of its owned Intellectual Property to a third party for a term greater than two (2) years and which provides such licensee exclusive rights to exploit such Intellectual Property.

“Existing Credit Agreements”: the GE Credit Agreement and the Fifth Street Credit Agreement.

“Extension”:  as defined in Section 3.16.

“Extension Loan”:  as defined in Section 3.16.

“Extension Offer”:  as defined in Section 3.16.

“FATCA”:  Sections 1471 through 1474 of the Code as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code.

“Federal Funds Effective Rate”:  for any day, the rate per annum equal to 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 that 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 quoted to the Administrative Agent on such day on such transactions as determined by the Administrative Agent in a commercially reasonable manner.

“Fee Letter”:  that certain Fee Letter, dated as of the date hereof, among the Borrower and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc.

“FEMA”:  the Federal Emergency Management Agency, a component of the U.S. Department of Homeland Security that administers the National Flood Insurance Program.

“Fifth Street Credit Agreement”: that certain Senior Subordinated Term Loan Agreement, dated as of December 29, 2011, among Slate Pharmaceuticals, Inc., a Delaware corporation, as the borrower,  the financial institutions party thereto as lenders, and Fifth Street Finance Corp., acting in its capacity as administrative agent for the lenders.

“First Lien Secured Leverage Ratio”:  at any date, the ratio of (a) Consolidated Funded Debt secured by a first priority Lien on all or any portion of the Collateral or any other assets of any of the Loan Parties as of such date to (b) Consolidated EBITDA for the period of four consecutive fiscal quarters ended on such date.

“Flood Insurance Laws”:  collectively, (i) the National Flood Insurance Act of 1968 as now or hereafter in effect or any successor statute thereto, (ii) the Flood Disaster Protection Act of 1973 as now or hereafter in effect or any successor statue thereto, (iii) the National Flood Insurance Reform Act of 1994 as now or hereafter in effect or any successor statute thereto and (iv) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or

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any successor statute thereto.

“Foreign Lender”:  any Lender that is not a “United States person” within the meaning of Section 7701(a)(30) of the Code.

“Foreign Subsidiary”:  any Subsidiary of the Borrower that is not a Domestic Subsidiary.

“Funded Debt”:  as to any Person, without duplication, all Indebtedness of the type described in the definition thereof, except in the case of (A) clause (b), only to the extent of Earn-Out Obligations and other similar obligations, (B) clause (f), only to the extent of any unreimbursed drawings thereunder and (C) clause (g), only Indebtedness that matures more than one (1) year from the date of its creation or matures within one (1) year from such date but is renewable or extendible, at the option of such Person, to a date more than one (1) year from such date or arises under a revolving credit or similar agreement that obligates the lender or lenders to extend credit during a period of more than one (1) year from such date, including all current maturities and current sinking fund payments in respect of such Indebtedness whether or not required to be paid within one year from the date of its creation and, in the case of the Borrower, Indebtedness in respect of the Term Loans.

“Funding Office”:  the office of the Administrative Agent specified in Section 10.2 or such other office as may be specified from time to time by the Administrative Agent as its funding office by written notice to the Borrower and the Lenders.

“GAAP”:  generally accepted accounting principles in the United States as in effect from time to time subject to Section 1.2(e).

“GE Credit Agreement”: that certain Amended and Restated Credit Agreement, dated as of December 29, 2011, among Actient Pharmaceuticals LLC, a Delaware limited liability company, ▇▇▇▇ Medical Technologies, Inc., a Delaware corporation, and Slate Pharmaceuticals, Inc. (f/k/a Slate Pharmaceuticals Acquisition Corp.), a Delaware corporation, as the borrowers, the financial institutions party thereto as lenders and General Electric Capital Corporation, acting in its capacity as administrative agent for the lenders.

“Governmental Authority”:  any nation or government, any state or other political subdivision thereof, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative functions of or pertaining to government (including any supranational bodies such as the European Union or the European Central Bank) and any securities exchange.

“Governmental Authorization”:  all laws, rules, regulations, authorizations, consents, decrees, permits, licenses, waivers, privileges, approvals from and filings with all Governmental Authorities necessary in connection with any Group Member’s business.

“Group Members”:  the collective reference to the Borrower and the Restricted Subsidiaries.

“Group Member Properties”: as defined in Section 4.16(a).

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“Guarantee and Collateral Agreement”:  the Guarantee and Collateral Agreement to be executed and delivered by the Borrower and each other Loan Party that is a party thereto, substantially in the form of Exhibit C.

“Guarantee Obligation”:  as to any Person (the “guaranteeing person”), any obligation of (a) the guaranteeing person or (b) another Person (including any bank under any letter of credit) to induce the creation of which the guaranteeing person has issued a reimbursement, counterindemnity or similar obligation, in either case guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends or other obligations (the “primary obligations”) of any other third Person (the “primary obligor”) in any manner, whether directly or indirectly, including any obligation of the guaranteeing person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (1) for the purchase or payment of any such primary obligation or (2) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the owner of any such primary obligation against loss in respect thereof; provided, however, that the term Guarantee Obligation shall not include endorsements of instruments for deposit or collection in the ordinary course of business or any Excluded Swap Obligation.  The amount of any Guarantee Obligation of any guaranteeing person shall be deemed to be the lower of (a) an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee Obligation is made and (b) the maximum amount for which such guaranteeing person may be liable pursuant to the terms of the instrument embodying such Guarantee Obligation, unless such primary obligation and the maximum amount for which such guaranteeing person may be liable are not stated or determinable, in which case the amount of such Guarantee Obligation shall be such guaranteeing person’s maximum reasonably anticipated liability in respect thereof as determined by the Borrower in good faith.

“Health Care Laws”:  any and all applicable current and future treaties, laws, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into by the Food and Drug Administration, the Center for Medicare and Medicaid Services, the Department of Health and Human Services (“HHS”), the Office of Inspector General of HHS, the Drug Enforcement Administration or any other Governmental Authority (including any professional licensing laws, certificate of need laws and state reimbursement laws), relating in any way to the manufacture, distribution, marketing, sale, supply or other disposition of any product or service of the Borrower or any of its Restricted Subsidiaries, the conduct of the business of the Borrower or any of its Restricted Subsidiaries, the provision of health care services generally, or to any relationship among the Borrower and its Restricted Subsidiaries, on the one hand, and their suppliers and customers and patients and other end-users of their products and services, on the other hand.

“Hedge Agreements”:  any agreement with respect to any cap, swap, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions; provided that no phantom

20

stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of the Borrower or the Subsidiaries shall be a Hedge Agreement.

“Immaterial Subsidiary”: any Subsidiary of the Borrower that, as of the date of the most recent financial statements delivered pursuant to Section 6.1(a) or (b), that has total assets calculated in accordance with GAAP of less than $5,000,000.

“Increase Effective Date”:  as defined in Section 2.4(a).

“Incremental Facilities”:  as defined in Section 2.4(a).

“Incremental Lender”: any Person that makes a Term Loan pursuant to Section 2.4 or has a commitment to make an Incremental Term Loan pursuant to Section 2.4.

“Incremental Revolving Loan Commitment”:  as defined in Section 2.4(a).

“Incremental Term Loan Commitment”:  as defined in Section 2.4(a).

“Incremental Term Loans”:  as defined in Section 2.4(c).

“Indebtedness”:  of any Person at any date, without duplication, (a) all indebtedness of such Person for borrowed money, (b) all obligations of such Person for the deferred purchase price of property or services (including Earn-Out Obligations (with respect to (x) Earn-Out Obligations existing on the Closing Date and (y) Earn-Out Obligations entered into or incurred after the Closing Date, in an aggregate amount not to exceed $10,000,000 at any one time outstanding, in each case, solely to the extent due and unpaid pursuant to the terms of the underlying agreements documenting such Earn-Out Obligations) but excluding current trade payables and payroll liabilities incurred in the ordinary course of such Person’s business), (c) all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments, (d) all indebtedness created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property), (e) all Capital Lease Obligations of such Person, (f) all obligations of such Person, contingent or otherwise, as an account party or applicant under or in respect of acceptances, letters of credit, surety bonds or similar arrangements, limited to the amount of such obligations after giving effect to drawings which have been reimbursed, (g) the liquidation value of all Disqualified Capital Stock of such Person, (h) all Guarantee Obligations of such Person in respect of obligations of the kind referred to in clauses (a) through (g) above, (i) all obligations of the kind referred to in clauses (a) through (h) above secured by (or for which the holder of such obligation has an existing right, contingent or otherwise, to be secured by) any Lien on property (including accounts and contract rights) owned by such Person, whether or not such Person has assumed or become liable for the payment of such obligation, (j) Attributable Indebtedness and (k) for the purposes of Sections 7.1 and 8(e) only, all obligations of such Person in respect of Hedge Agreements.  The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness

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expressly provide that such Person is not liable therefor.  For purposes of clause (j) above (including as such clause applies to Section 8(e)), the principal amount of Indebtedness in respect of Hedge Agreements shall equal the amount that would be payable (giving effect to netting) at such time if such Hedge Agreement were terminated.  For the avoidance of doubt, the accrual of interest is not an incurrence of Indebtedness.

“Indemnified Liabilities”:  as defined in Section 10.5(b).

“Indemnified Taxes”:  (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and, (b) to the extent not otherwise described in subsection (a), Other Taxes.

“Indemnitee”:  as defined in Section 10.5(b).

“Insolvency”:  with respect to any Multiemployer Plan, the condition that such Plan is insolvent within the meaning of Section 4245 of ERISA.

“Insolvent”:  pertaining to a condition of Insolvency.

“Insufficiency”:  with respect to any Plan, the amount, if any, of its unfunded benefit liabilities, as defined in Section 4001(a)(18) of ERISA.

“Intellectual Property”:  collectively, all United States and foreign (a) patents, patent applications, certificates of inventions, industrial designs, together with any and all inventions described and claimed therein, and reissues, divisions, continuations, extensions and continuations-in-part thereof and amendments thereto; (b) trademarks, service marks, certification marks, trade names, slogans, logos, trade dress, Internet Domain Names, and other source identifiers, whether statutory or common law, whether registered or unregistered, and whether established or registered in the United States or any other country or any political subdivision thereof, together with any and all registrations and applications for any of the foregoing, goodwill connected with the use thereof and symbolized thereby, and extensions and renewals thereof and amendments thereto; (c) copyrights (whether statutory or common law, and whether published or unpublished), copyrightable subject matter, and all mask works (as such term is defined in 17 U.S.C. Section 901, et seq.), together with any and all registrations and applications therefor, and renewals and extensions thereof and amendments thereto; (d) rights in computer programs (whether in source code, object code, or other form), algorithms, databases, compilations and data, technology supporting the foregoing, and all documentation, including user manuals and training materials, related to any of the foregoing (“Software”); (e) trade secrets and proprietary or confidential information, data and databases, know-how and proprietary processes, designs, inventions, and any other similar intangible rights, to the extent not covered by the foregoing, whether statutory or common law, whether registered or unregistered; (f) income, fees, royalties, damages and payments now and hereafter due and/or payable under or with respect to any of the foregoing, including, without limitation, damages, claims and payments for past, present or future infringements, misappropriations or other violations thereof; (g) rights and remedies to ▇▇▇ for past, present and future infringements, misappropriations and other violations of any of the foregoing; and (h) rights, priorities, and privileges corresponding to any of the foregoing or other similar intangible assets throughout the

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world.

“Intellectual Property Out-Licensing Event”:  (i) any payment received by a Loan Party from the out-licensing of Xiapex in Europe and Eurasia and (ii) any payment received by a Loan Party resulting from any other out-licensing transaction in relation to Intellectual Property of any Group Member in any territory.

“Intellectual Property Security Agreements”:  an intellectual property security agreement or such other agreement, as applicable, pursuant to which each Loan Party which owns any Intellectual Property which is the subject of a registration or application with the United States Patent and Trademark Office or the United States Copyright Office grants to the Collateral Agent, for the benefit of the Secured Parties a security interest in such Intellectual Property attached hereto as Exhibit H.

“Intercompany Note”:  the Intercompany Note to be executed and delivered by each Subsidiary of the Borrower that is not a Loan Party, substantially in the form attached hereto as Exhibit I.

“Interest Payment Date”:  (a) as to any ABR Loan, the last day of each March, June, September and December to occur while such Loan is outstanding and the final maturity date of such Loan, (b) as to any LIBOR Rate Loan having an Interest Period of three (3) months or less, the last day of such Interest Period, and (c) as to any LIBOR Rate Loan having an Interest Period longer than three (3) months, each day that is three (3) months, or a whole multiple thereof, after the first day of such Interest Period and the last day of such Interest Period.

“Interest Period”:  as to any LIBOR Rate Loan, (a) initially, the period commencing on the borrowing or conversion date, as the case may be, with respect to such LIBOR Rate Loan and ending one, two, three or six months (or if consented to by all Lenders, nine or twelve months) thereafter, as selected by the Borrower in its notice of borrowing or notice of conversion, as the case may be, given with respect thereto; and (b) thereafter, each period commencing on the last day of the next preceding Interest Period applicable to such LIBOR Rate Loan and ending one, two, three or six months (or if consented to by all Lenders, nine or twelve months) thereafter, as selected by the Borrower by irrevocable notice to the Administrative Agent no later than 12:00 Noon, New York City time, on the date that is three (3) Business Days prior to the last day of the then current Interest Period with respect thereto; provided that until the completion of the primary syndication of the Term Loans, LIBOR Rate Loans shall only be available in one month Interest Periods; provided, further, all of the foregoing provisions relating to Interest Periods are subject to the following:

(i)                                     if any Interest Period would otherwise end on a day that is not a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless the result of such extension would be to carry such Interest Period into another calendar month in which event such Interest Period shall end on the immediately preceding Business Day;

(ii)                                  the Borrower may not select an Interest Period that would extend beyond

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the Term Loan Maturity Date; and

(iii)                               any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of a calendar month.

“Internally Generated Cash”:  with respect to any period, any cash of the Borrower or any Subsidiary Guarantor generated during such period, excluding Net Cash Proceeds and any cash constituting proceeds from an incurrence of Indebtedness, an issuance of Capital Stock or a capital contribution, in each case, except to the extent such proceeds are included as income in calculating Consolidated Net Income for such period.

“Internet Domain Names”:  all Internet domain names and associated URL addresses.

“Investments”:  as defined in Section 7.6.

“IRS”:  the United States Internal Revenue Service.

“Junior Financing”:  any Junior Indebtedness or any other Indebtedness of the Borrower or any Subsidiary that is, or that is required to be, contractually subordinated in payment or lien priority to the Obligations.

“Junior Financing Documentation”:  any documentation governing any Junior Financing.

“Junior Indebtedness”:  Indebtedness of any Person so long as (a) such Indebtedness shall not require any amortization prior to the date that is ninety-one (91) days following the Term Loan Maturity Date; (b) the weighted average maturity of such Indebtedness shall occur after the date that is ninety-one (91) days following the Term Loan Maturity Date; (c) the mandatory prepayment provisions, affirmative and negative covenants and financial covenants shall be no more restrictive, taken as a whole, than the provisions set forth in the Loan Documents, as determined in good faith and certified in writing to the Administrative Agent by a Responsible Officer of the Borrower; (d) such Indebtedness is either unsecured or secured but subordinated to the Liens of the Collateral Agent in a manner, and pursuant to an intercreditor agreement, reasonably satisfactory to the Collateral Agent and the Administrative Agent; (e) if such Indebtedness is Subordinated Indebtedness, the other terms and conditions thereof shall be satisfied; (f) if such Indebtedness is incurred by a Subsidiary that is not a Loan Party, (i) such Subsidiary shall have also provided a guarantee of the Obligations substantially on the terms set forth in the Guarantee and Collateral Agreement and (ii) if the Indebtedness being guaranteed, is subordinated to the Obligations, such guarantee, shall be subordinated to the guarantee of the Obligations on terms at least as favorable, taken as a whole, to the Lenders as those contained in the subordination of such Indebtedness; and (g) if such Indebtedness is incurred by a Subsidiary that is not a Loan Party, subject to Section 7.6(g), such Indebtedness may be guaranteed by another Group Member.

“Lead Arranger”:  ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc. in its capacity as sole

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lead arranger under this Agreement.

“Leased Properties”: as defined in Section 4.7(c).

“Lender Insolvency Event”:  (a) a Lender or its Parent Company is adjudicated by a Governmental Authority to be insolvent, or admits in writing its inability to pay its debts as they become due, or makes a general assignment for the benefit of its creditors, or (b) such Lender or its Parent Company is the subject of a bankruptcy, insolvency, reorganization, liquidation or similar proceeding, or a receiver, trustee, conservator, intervenor or sequestrator or the like has been appointed for such Lender or its Parent Company, or such Lender or its Parent Company has indicating its consent to or acquiescence in any such proceeding or appointment.

“Lenders”:  each Term Lender and Incremental Lender.

“LIBOR”:  with respect to each day during each Interest Period pertaining to a LIBOR Rate Loan, the rate per annum offered for deposits of Dollars for the applicable Interest Period that appears on Reuters Screen LIBOR01 Page as of 11:00 A.M., London, England time, two (2) Business Days prior to the first day of such Interest Period or (b) if no such offered rate exists, such rate will be the rate of interest per annum as determined by the Administrative Agent (rounded upwards, if necessary, to the nearest 1/100 of 1%) at which deposits of Dollars in immediately available funds are offered at 11:00 A.M., London, England time, two (2) Business Days prior to the first day in the applicable Interest Period by major financial institutions reasonably satisfactory to the Administrative Agent in the London interbank market for such interest period and for an amount equal or comparable to the principal amount of the Term Loans to be borrowed, converted or continued as LIBOR Rate Loans on such date of determination.

“LIBOR Rate”:  with respect to each day during each Interest Period pertaining to a LIBOR Rate Loan, the rate per annum equal to the greater of (a) 1.25% and (b) for each Interest Period following the initial Interest Period, the rate per annum determined by the Administrative Agent (rounded upward to the nearest 1/100th of 1%) by dividing (i) LIBOR for such Interest Period by (ii) 1.00 minus Eurocurrency Reserve Requirements.  The LIBOR Rate shall be adjusted on and as of the effective date of any change in the Eurocurrency Reserve Requirements.

“LIBOR Rate Loans”:  loans the rate of interest applicable to which is based upon the LIBOR Rate.

“LIBOR Tranche”:  the collective reference to LIBOR Rate Loans under a particular loan facility the then current Interest Periods with respect to all of which begin on the same date and end on the same later date (whether or not such Loans shall originally have been made on the same day).

“Lien”:  with respect to any property or asset, (a) any mortgage, deed of trust, lien (statutory or otherwise), pledge, hypothecation, encumbrance, charge or security interest in, on, of or with respect to such property or asset, (b) any right, title or interest of any Person (including any vendor or lessor) under any conditional sale agreement, capital lease or title retention agreement (or any capital or financing lease having substantially the same economic effect as any of the foregoing) relating to such property or asset and (c) in the case of securities (debt or

25

equity), any purchase option, call, put or similar right of any Person with respect to such securities.

“Loan Documents”:  this Agreement, the Security Documents, the Notes and the Fee Letter.

“Loan Party”:  each of the Borrower and the Subsidiary Guarantors.

“Margin Stock”:  as defined in Regulation U of the Board as from time to time in effect and any successor to all or a portion thereof.

“Material Adverse Effect”:  (a) a material adverse effect upon, the business, assets, liabilities, operations or condition (financial or otherwise) of the Borrower and its Subsidiaries, taken as a whole and (b) a material adverse effect upon the legality, validity, binding effect or enforceability against any Loan Party of any Loan Document to which it is a party.

“Material Indebtedness”:  of any Person at any date, Indebtedness the outstanding principal amount of which exceeds in the aggregate $20,000,000.

“Materials of Environmental Concern”:  any gasoline or petroleum (including crude oil or any fraction thereof) or petroleum byproducts or distillates, or any chemicals, constituents, substances, materials, wastes, pollutants or contaminants in any form  regulated  under any Environmental Law, including asbestos and asbestos-containing materials, polychlorinated biphenyls, radon gas, radiation, explosive or radioactive substances, biological material, and electromagnetic or radio frequency emissions.

“Material Properties”: On any date of determination, all Owned Properties with a gross book value of greater than or equal to $5,000,000. The Material Properties existing as of the Closing Date are indicated by an asterisk and set forth on Schedule 4.7(b).

“Maximum Rate”:  as defined in Section 3.5(e).

“Merger”:  as defined in the recitals to this Agreement.

“Merger Agreement”:  the Agreement and Plan of Merger, dated as of the date hereof, by and among the Borrower, Merger Sub, the Target and GTCR Fund IX/A, L.P., solely in its capacity as representative for the Target’s Unitholders and Optionholders (each as defined in the Merger Agreement).

“Merger Documentation”:  collectively, the Merger Agreement, the Transaction Documents (as defined in the Merger Agreement) and all schedules, exhibits and annexes thereto and all side letters and agreements affecting the terms thereof or entered into in connection therewith.

“Merger Sub”:  as defined in the recitals to this Agreement.

“Moody’s”:  ▇▇▇▇▇’▇ Investors Service, Inc.

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“Mortgaged Properties”:  the real properties as to which the Collateral Agent for the benefit of the Secured Parties shall be granted a Lien pursuant to the Mortgages pursuant to Section 6.9.

“Mortgages”:  any mortgages and deeds of trust or any other documents creating and evidencing Liens on Mortgaged Properties made by any Loan Party in favor of, or for the benefit of, the Collateral Agent for the benefit of the Secured Parties, which shall be in a form reasonably satisfactory to the Administrative Agent and the Collateral Agent.

“Multiemployer Plan”:  a plan that is a “multiemployer” plan as defined in Section 4001(a)(3) of ERISA, to which any Group Member or any ERISA Affiliate is making or accruing an obligation to make contributions, or has within any of the preceding five plan years made or accrued an obligation to make contributions.

“Multiple Employer Plan”: a single employer plan, as defined in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any Group Member or any ERISA Affiliate and at least one Person other than a Group Member or an ERISA Affiliate or (b) was so maintained and in respect of which any Group Member or an ERISA Affiliate could have liability under Section 4064 or 4069 of ERISA in the event such plan has been or were to be terminated.

“Net Cash Proceeds”:

(a)                                 in connection with any Asset Sale or any Recovery Event, the proceeds thereof in the form of cash and Cash Equivalents (including any such proceeds received by way of deferred payment of principal pursuant to a note or installment receivable or held in escrow or purchase price adjustment receivable or by the Disposition of any non-cash consideration received in connection therewith or otherwise, but only as and when received and net of costs, amounts and taxes set forth below), net of:

(i)                                     attorneys’ fees, accountants’ fees, investment banking fees and other professional and transactional fees actually incurred in connection therewith;

(ii)                                  amounts required to be applied to the repayment of Indebtedness secured by a Lien expressly permitted hereunder on any asset that is the subject of such Asset Sale or Recovery Event (other than any Lien pursuant to a Security Document);

(iii)                               other fees and expenses actually incurred in connection therewith;

(iv)                              taxes paid or reasonably estimated to be payable as a result thereof (after taking into account any available tax credits or deductions and any tax sharing arrangements);

(v)                                 amounts provided as a reserve in accordance with GAAP against any liabilities associated with the assets disposed of in an Asset Sale (including, without limitation, pension and other post-employment benefit liabilities and

27

liabilities related to environmental matters or against any indemnification obligations associated with such Asset Sale); provided that such amounts shall be considered Net Cash Proceeds upon release of such reserve;

(b)                                 in connection with any Exclusive License, the proceeds thereof in the form of cash and Cash Equivalents constituting Upfront Payments, net of:

(i)                                     attorneys’ fees, accountants’ fees, investment banking fees and other professional and transactional fees actually incurred in connection therewith;

(ii)                                  other fees and expenses actually incurred in connection therewith;

(iii)                               taxes paid or reasonably estimated to be payable as a result thereof (after taking into account any available tax credits or deductions and any tax sharing arrangements);

(iv)                              amounts provided as a reserve in accordance with GAAP against any liabilities associated with such Exclusive License (including, without limitation, against any indemnification obligations associated with such Exclusive License); provided that such amounts shall be considered Net Cash Proceeds upon release of such reserve; and

(c)                                  in connection with any issuance or sale of Capital Stock, any capital contribution or any incurrence of Indebtedness, the cash proceeds received from such issuance, contribution or incurrence, net of attorneys’ fees, investment banking fees, accountants’ fees, underwriting discounts and commissions and other customary fees and expenses actually incurred in connection therewith.

“Non-Consenting Lenders”:  as defined in Section 10.1.

“Non-Defaulting Lender”:  at any time, a Lender that is not a Defaulting Lender.

“Non-Recourse Indebtedness”: Indebtedness for borrowed money of a Permitted Joint Venture, provided that (a) such Indebtedness is not, in whole or in part, Indebtedness of any Loan Party other than such Permitted Joint Venture and its Subsidiaries and for which no holder thereof has or could have upon the occurrence of any contingency, any recourse against any Loan Party or any property or assets thereof other than such Permitted Joint Venture and its Subsidiaries (including, for the avoidance of doubt any Equity Interests in such Permitted Joint Venture), (b) such Indebtedness is owing only to unaffiliated third parties (which, for the avoidance of doubt, does not include any Loan Party or any Affiliate thereof or any current or former officer or director of any Loan Party), (c) the source of repayment for such Indebtedness is expressly limited to the assets or cash flows of such Permitted Joint Venture and its Subsidiaries and (d) no Loan Party (other than such Permitted Joint Venture and its Subsidiaries) provides credit support, directly or indirectly, of any kind (including any undertaking, agreement or instrument that would constitute Indebtedness) or is directly or indirectly liable as a guarantor, surety or otherwise (but excluding a customary “bad boy” keep well guaranty or other similar back-stop arrangement) in respect of such Indebtedness or in respect of the business or

28

operations of the applicable Permitted Joint Venture and its Subsidiaries that are direct or indirect obligors under such Non-Recourse Indebtedness in the case of clauses (a), (c) and (d) above, as reasonably determined by the Administrative Agent.

“Non-U.S. Pension Plan”:  any plan, fund or other similar program established or maintained outside the United States by a Group Member primarily for the benefit of employees of Group Members residing outside the United States, which plan, fund or other similar program provides for retirement income of such employees or a deferral of income from such employees in contemplation of retirement and is not subject to ERISA or the Code.

“Not Otherwise Applied”:  with reference to any amount of proceeds of any transaction, that (a) was not required to be applied to prepay the Term Loans pursuant to Section 3.2(c) and (b) was not previously applied in determining the permissibility of a transaction under the Loan Documents where such permissibility was (or may have been) contingent on receipt of such amount or utilization of such amount for a specified purpose.

“Notes”:  the collective reference to any promissory note evidencing Loans.

“Obligations”:  the unpaid principal of and interest on (including interest accruing after the maturity of the Term Loans and interest accruing after the filing of any petition in bankruptcy, or the commencement of any Insolvency, reorganization or like proceeding, relating to the Borrower, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) the Term Loans and all other obligations and liabilities of the Loan Parties to any Agent or to any Lender (or, in the case of Specified Hedge Agreements, any Qualified Counterparty), whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, this Agreement, any other Loan Document, any Specified Hedge Agreement (other than any Excluded Swap Obligation) or any other document made, delivered or given in connection herewith or therewith, whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses (including all fees, charges and disbursements of counsel to any Agent or to any Lender that are required to be paid by the Borrower pursuant hereto) or otherwise.

“OFAC”:  as defined in Section 4.22(a).

“Offer”:  as defined in Section 10.6(b).

“Offer Loans”:  as defined in Section 10.6(b).

“Offer Process”:  as defined in Section 10.6(h).

“Organizational Documents”:  as to any Person, the Certificate of Incorporation, Certificate of Formation, By-Laws, Limited Liability Company Agreement, Memorandum and Articles of Association, Partnership Agreement or other similar organizational or governing documents of such Person.

“Other Connection Taxes”:  with respect to any Agent or any Lender, Taxes imposed as a result of a present or former connection between such Agent or Lender and the

29

jurisdiction imposing such Taxes (other than a connection arising from such Agent or Lender having executed, delivered, enforced, become a party to, performed its obligations under, received or perfected a security interest under, or engaged in any other transaction pursuant to, or enforced, any Loan Document, or sold or assigned an interest in any Loan Document).

“Other Taxes”:  any and all present or future stamp, court, documentary intangible, mortgage recording, filing or similar excise or property Taxes, arising from any payment made hereunder or from the execution, delivery, performance, registration or enforcement of, from the receipt or perfection of a security interest under, or otherwise with respect to, this Agreement, or any other Loan Document, except any Taxes that are Other Connection Taxes imposed with respect to a sale or assignment (other than an assignment under Section 3.13).

“Owned Properties”: as defined in Section 4.7(b).

“Parent Company”:  with respect to a Lender, the bank holding company (as defined in Board Regulation Y), if any, of such Lender, and/or any Person owning, beneficially or of record, directly or indirectly, a majority of the shares of such Lender.

“Participant”:  as defined in Section 10.6(e).

“Patriot Act”:  the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001).

“PBGC”:  the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA (or any successor entity performing similar functions).

“Perfection Certificate”:  a perfection certificate in the form of Exhibit K-1 or any other form approved by the Collateral Agent, as the same shall be supplemented from time to time by a Perfection Certificate Supplement or otherwise.

“Perfection Certificate Supplement”: a perfection certificate supplement in the form of Exhibit K-2 or any other form approved by the Collateral Agent.

“Permitted Acquisition”:  (i) the Merger, and (ii) any acquisition, whether by purchase, merger or otherwise, of (x) all or substantially all of the assets of, all or a majority of the Capital Stock of, or a business line or unit or a division of, or (y) any product or product line, of any Person; provided:

(a)                                 immediately prior to, and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing or would result therefrom;

(b)                                 all transactions in connection therewith shall be consummated, in all material respects, in accordance with all applicable laws and in conformity with all applicable Governmental Authorizations;

(c)                                  in the case of the acquisition of Capital Stock, such Capital Stock shall become subject to a security interest in favor of the Collateral Agent for the benefit of the

30

Secured Parties and the issuer of such Capital Stock shall become a Loan Party, in each case, in accordance with Section 6.9 and 6.10;

(d)                                 the Total Leverage Ratio, in each case, calculated on a Pro Forma Basis after giving effect to such acquisition as if such acquisition had occurred on the first day of the most recent period of four (4) consecutive fiscal quarters of the Borrower for which financial statements are available shall be no greater than the Total Leverage Ratio as in effect on the Closing Date (as calculated, on a Pro Forma Basis for the Transactions, as of the date of the then last ended fiscal quarter occurring prior to the Closing Date);

(e)                                  the Borrower shall have delivered to the Administrative Agent at least five (5) Business Days prior to such proposed acquisition, a certificate of a Responsible Officer of the Borrower evidencing compliance with clause (d) above and compliance with clause (f) below, together with all relevant financial information with respect to such acquired assets, including, in the event the Consolidated EBITDA (calculated on a Pro Forma Basis) of the assets and property subject to such acquisition is greater than 25% of the Consolidated EBITDA (calculated on a Pro Forma Basis) of the Borrower, appropriate revisions to the Projections included in the Confidential Information Memorandum, or, if Projections have been provided pursuant to Section 6.2(b), appropriate revisions to such Projections, in each case after giving effect to such proposed acquisition (such revised projections or Projections to be accompanied by a certificate of a Responsible Officer of the Borrower stating that such revised projections or Projections are based on estimates, information and assumptions set forth therein and otherwise believed by such Responsible Officer of the Borrower to be reasonable at such time (it being recognized that such revised projections or Projections relate to future events and are not to be viewed as fact and that actual results during the period covered thereby may differ from such revised projections or Projections by a material amount)); and

(f)                                   any Person or assets or division as acquired in accordance herewith shall be in substantially the same business or lines of business in which the Borrower and/or its Subsidiaries are engaged, or are permitted to be engaged, as provided in Section 7.12, as of the time of such acquisition.

“Permitted Convertible Notes Refinancing”:  as to the Convertible Notes, the incurrence of other unsecured Indebtedness to refinance, extend, renew, defease, restructure, replace or refund (collectively, “refinance”) such Convertible Notes; provided that, (a) the refinancing Indebtedness does not mature, or contain any provision permitting the holders thereof to require the redemption, repurchase or prepayment thereof, prior to (i) in the case of maturity, the later of (x) the maturity date of the Convertible Notes and (y) the date that is ninety-one (91) days after the Term Loan Maturity Date and (ii)  in the case of any provision permitting the holders thereof to require the redemption, repurchase or prepayment of the refinancing Indebtedness,  the first date the holders thereof could require the redemption, repurchase or prepayment of the Convertible Notes, (b) the Total Leverage Ratio (as of the date of the most recent financial statements delivered pursuant to Section 6.1(a) or (b), after giving pro forma effect to the consummation of such Permitted Convertible Notes Refinancing and the incurrence of any Indebtedness in connection therewith) is no greater than the Total Leverage

31

Ratio as in effect on the Closing Date (as calculated, on a Pro Forma Basis for the Transactions, as of the date of the then most recent financial statements of the then last ended fiscal quarter) and a Responsible Officer of the Borrower shall have certified to the Administrative Agent to such compliance in writing and (c) the respective obligor or obligors shall be the same on the refinancing Indebtedness as on the Indebtedness being refinanced.

“Permitted Joint Venture”: one or more joint ventures entered into after the Closing Date (which may be in the form of a limited liability company or other Person) relating to assets that are not owned by, or licensed to, any Loan Party as of the Closing Date, in which the Borrower or any of its Subsidiaries holds equity interests or otherwise participates or invests; provided that (a) the applicable joint venture shall be engaged in substantially the same business as the Loan Parties or in a related business, (b) the Total Leverage Ratio (as of the date of the most recent financial statements delivered pursuant to Section 6.1(a) or (b), after giving pro forma effect to the consummation of such joint venture and the incurrence of any Indebtedness in connection therewith) is no greater than the Total Leverage Ratio as in effect on the Closing Date (as calculated, on a Pro Forma Basis for the Transactions, as of the date of the then most recent financial statements of the then last ended fiscal quarter) and a Responsible Officer of the Borrower shall have certified to such compliance, (c) no Loan Party shall, pursuant to such joint venture, be under any Contractual Obligation to make Investments or incur Indebtedness or contingent liabilities that would be in violation of any provision of this Agreement and (d) immediately prior, and after giving effect, to the consummation of such joint venture, no Default or Event of Default shall have occurred and be continuing.

“Permitted Refinancing”:  as to any Indebtedness, the incurrence of other Indebtedness to refinance, extend, renew, defease, restructure, replace or refund (collectively, “refinance”) such existing Indebtedness; provided that, in the case of such other Indebtedness, the following conditions are satisfied:  (a) the weighted average life to maturity of such refinancing Indebtedness (other than purchase money security interests and Capital Lease Obligations) shall be greater than or equal to the weighted average life to maturity of the Indebtedness (other than purchase money security interests and Capital Lease Obligations)  being refinanced; (b) the principal amount of such refinancing Indebtedness shall be less than or equal to the principal amount (including any accreted or capitalized amount) then outstanding of the Indebtedness being refinanced, plus any required premiums and other amounts paid, and fees and expenses incurred, in connection with such modification, refinancing, refunding, renewal or extension and by any amount equal to any existing commitments unutilized thereunder; (c) the respective obligor or obligors shall be the same on the refinancing Indebtedness as on the Indebtedness being refinanced; (d) the security, if any, for the refinancing Indebtedness shall be substantially the same as that for the Indebtedness being refinanced (except to the extent that less security is granted to holders of refinancing Indebtedness); and (e) the refinancing Indebtedness is subordinated to the Obligations on terms that are at least as favorable, taken as a whole, as the Indebtedness being refinanced (as determined in good faith and certified in writing to the Administrative Agent by a Responsible Officer of the Borrower) and the holders of such refinancing Indebtedness have entered into any subordination or intercreditor agreements reasonably requested by the Administrative Agent evidencing such subordination, but only to the extent that the Indebtedness being refinanced was so subordinated.

“Person”:  an individual, partnership, corporation, limited liability company,

32

business trust, joint stock company, trust, unincorporated association, joint venture, Governmental Authority or other entity of whatever nature.

“Plan”:  a Single Employer Plan or a Multiple Employer Plan.

“Platform”:  as defined in Section 6.1.

“Pledged Company”:  any Subsidiary of the Borrower the Capital Stock of which is pledged to the Collateral Agent pursuant to any Security Document.

“Pledged Equity Interests”:  as defined in the Guarantee and Collateral Agreement.

“Portfolio Interest Exemption”:  as defined in Section 3.10.

“Private ▇▇▇▇▇▇”:  Lenders’ employees and representatives who have declared that they are authorized to receive material non-public information.

“Pro Forma Basis”: with respect to compliance with any test or covenant hereunder, compliance with such covenant or test after giving effect to (a) the Transactions, (b) any Permitted Acquisition (to the extent not subsequently disposed of during such period), (c) the borrowing of any Incremental Facilities, (d) any Asset Sale or (e) any restructurings of the business of the Borrower or any of its Subsidiaries that the Borrower or any of its Subsidiaries has made and/or has determined to make during the applicable period or subsequent to such applicable period and on or prior to or simultaneously with the date of calculation of Consolidated EBITDA and are expected to have a continuing impact and are factually supportable, which would include cost savings resulting from head count reduction, closure of facilities and similar operational and other cost savings, which adjustments the Borrower determines are reasonable as set forth in a certificate of an officer of the Borrower (the foregoing (a) through (e), together with any transactions related thereto or in connection therewith, the “relevant transactions”), as if the relevant transaction had been consummated or occurred during the applicable period had been consummated and occurred at the beginning of such period.  For purposes of this definition, if any Indebtedness to be so incurred bears interest at a floating rate and is being given pro forma effect, the interest on such Indebtedness will be calculated as if the rate in effect on the date of incurrence had been the applicable rate for the entire period (taking into account any applicable interest rate Hedge Agreements).

“Pro Forma Financial Statements”:  as defined in Section 6.1(d).

“Projections”:  as defined in Section 6.2(b).

“Property”:  any right or interest in or to property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, including, without limitation, Capital Stock.

“Purchased Interests”:  has the meaning set forth in the Merger Agreement.

“Qualified Capital Stock”:  any Capital Stock (other than warrants, rights or

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options referenced in the definition thereof) that either (a) does not have a maturity and is not mandatorily redeemable, or (b) by its terms (or by the terms of any employee stock option, incentive stock or other equity-based plan or arrangement under which it is issued or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the happening of any event, (x) matures (excluding any maturity as the result of an optional redemption by the issuer thereof) or is mandatorily redeemable (excluding any mandatory redemption resulting from an asset sale or change in control so long as no payments in respect thereof are due or owing, or otherwise required to be made, until all Obligations have been paid in full in cash), pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof, in whole or in part, or requires the payment of any cash dividend or any other scheduled payment constituting a return of capital, in each case, at any time on or after the ninety-first day following the Term Loan Maturity Date, or (y) is convertible into or exchangeable (unless at the sole option of the issuer thereof) for (i) debt securities or (ii) any Capital Stock referred to in clause (x) above, in each case, at any time on or after the ninety-first day following the Term Loan Maturity Date.

“Qualified Counterparty”:  with respect to any Hedge Agreement, any counterparty thereto that is, or that at the time such Hedge Agreement was entered into, was a Lender, an Affiliate of a Lender, an Agent or an Affiliate of an Agent (or, in the case of any such Hedge Agreement entered into prior to the Closing Date, any counterparty that was a Lender, an Affiliate of a Lender, an Agent or an Affiliate of an Agent on the Closing Date) or any other counterparty reasonably acceptable to the Administrative Agent; provided that, in the event a counterparty to a Hedge Agreement at the time such Hedge Agreement was entered into (or, in the case of any Hedge Agreement entered into prior to the Closing Date, on the Closing Date) was a Qualified Counterparty, such counterparty shall constitute a Qualified Counterparty hereunder and under the other Loan Documents.

“Quarterly Payment Date”:  March 31, June 30, September 30 and December 31 of each year.

“Recovery Event”:  any settlement of or payment in excess of $5,000,000 in respect of any property or casualty insurance claim or any condemnation proceeding relating to any asset of any Group Member.

“Refinanced Term Loans”:  as defined in Section 10.1.

“Refinancing Transaction”: as defined in the recitals hereto.

“Register”:  as defined in Section 10.6(d).

“Regulation S-X”:  Regulation S-X promulgated under the Securities Act.

“Regulation T”:  Regulation T of the Board as in effect from time to time.

“Regulation U”:  Regulation U of the Board as in effect from time to time.

“Regulation X”:  Regulation X of the Board as in effect from time to time.

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“Reinvestment Deferred Amount”:  with respect to any Reinvestment Event, the aggregate Net Cash Proceeds received by any Group Member in connection therewith that are not applied to prepay the Term Loans pursuant to Section 3.2(b) as a result of the delivery of a Reinvestment Notice.

“Reinvestment Event”:  any Asset Sale (other than any Intellectual Property Out-Licensing Event) or Recovery Event in respect of which the Borrower has delivered a Reinvestment Notice.

“Reinvestment Notice”:  a written notice executed by a Responsible Officer stating that no Event of Default has occurred and is continuing and that the Borrower (directly or indirectly through a Restricted Subsidiary) intends and expects to use all or a specified portion of the Net Cash Proceeds of an Asset Sale or Recovery Event to acquire or repair fixed or capital assets or Intellectual Property useful in its business (including by making Permitted Acquisitions).

“Reinvestment Prepayment Amount”:  with respect to any Reinvestment Event, the Reinvestment Deferred Amount relating thereto less any amount expended prior to the relevant Reinvestment Prepayment Date to acquire or repair fixed or capital assets or Intellectual Property useful in the Borrower’s or the Restricted Subsidiaries’ businesses (including by making Permitted Acquisitions) in accordance with the applicable Reinvestment Notice.

“Reinvestment Prepayment Date”:  with respect to any Reinvestment Event, the earlier of (a) the date occurring twelve (12) months (or if the Borrower or a Restricted Subsidiary, as the case may be has entered into a legally binding commitment to reinvest such Reinvestment Deferred Amount during such twelve (12) month period, eighteen (18) months) after such Reinvestment Event and (b) the date on which the Borrower shall have determined not to, or shall have otherwise ceased to, acquire or repair fixed or capital assets or Intellectual Property useful in the Borrower’s or the Restricted Subsidiaries’ businesses with all or any portion of the relevant Reinvestment Deferred Amount.

“Related Indemnified Person”:  of an indemnified person means (a) any controlling person or controlled affiliate of such indemnified person, (b) the respective directors, officers, or employees of such indemnified person or any of its controlling persons or controlled affiliates and (c) the respective agents of such indemnified person or any of its controlling persons or controlled affiliates, in the case of this clause (c), acting at the instructions of such indemnified person, controlling person or such controlled affiliate; provided that each reference to a controlled affiliate or controlling person in this sentence pertains to a controlled affiliate or controlling person involved in the negotiation or syndication of this Agreement and the Term Loans.

“Related Party Register”:  as defined in Section 10.6(d).

“Release”:  any release, spill, emission, discharge, deposit, disposal, leaking, emanating, pumping, pouring, dumping, emptying, injection, seepage, migration, or leaching in, into, upon, onto or through the Environment, or into or from any building or facility.

“Reorganization”:  with respect to any Multiemployer Plan, the condition that

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such plan is in reorganization within the meaning of Section 4241 of ERISA.

“Replacement Term Loans”:  as defined in Section 10.1.

“Reportable Event”:  any of the events set forth in Section 4043(c) of ERISA, other than those events as to which the thirty (30) day notice period is waived pursuant to PBGC Reg. § 4043 with respect to a Plan (other than a Plan maintained by an ERISA Affiliate that is considered an ERISA Affiliate only pursuant to subsection (m) or (o) of Section 414 of the Code).

“Repricing Transaction”:  (i) any prepayment, repayment, refinancing, substitution, purchase, buy-back or replacement of any amount of the Term Loans with the proceeds of, or any conversion of Term Loans into, any new or replacement tranche of term loans (whether under the Loan Documents or otherwise) bearing interest at an Effective Yield (as defined below) less than the Effective Yield of the Term Loans, or (ii) any amendment (including pursuant to any replacement term loans contemplated in the Loan Documents) to any Loan Documents, or to the Term Loans or any tranche or portion thereof, that reduces the Effective Yield applicable to any Term Loans (in each case, as such comparative yields are reasonably determined by the Agent), in each case other than a Repricing Transaction that occurs in connection with a Change in Control or a Permitted Acquisition the fair market value (as reasonably determined by the Board of Directors (or a committee thereof) of the Borrower) of which is no less than $150,000,000.  Any such determination by the Administrative Agent as contemplated by the preceding sentence shall be binding on the Lenders, absent manifest error.

“Required Lenders”:  at any time, the holders of more than 50% of the sum of (a) the aggregate unpaid principal amount of the Term Loans then outstanding and (b) the Total Term Commitments then in effect.

“Requirement of Law”:  as to any Person, any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject, including, in each case, any applicable Health Care Laws.

“Respiratory Business”: the respiratory business of the Target and its Subsidiaries.

“Responsible Officer”:  the chief executive officer, president, chief financial officer, treasurer or assistant treasurer of the Borrower (unless otherwise specified), but in any event, with respect to financial matters, the chief financial officer, treasurer or assistant treasurer of the Borrower.

“Restricted Payments”:  as defined in Section 7.5.

“Restricted Subsidiary”:  any Subsidiary that is not an Unrestricted Subsidiary.

“S&P”:  Standard & Poor’s Ratings Services.

“Sale and Leaseback Transaction”:  any arrangement, directly or indirectly, with

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any person whereby it shall sell or transfer any property used or useful in its business, whether now owned or hereafter acquired, and thereafter rent or lease such property or other property which it intends to use for substantially the same purpose or purposes as the property being sold or transferred.

“SEC”:  the Securities and Exchange Commission, any successor thereto and any analogous Governmental Authority.

“Secured Parties”:  the collective reference to the Lenders, the Agents, and the Qualified Counterparties, and each of their successors and assigns.

“Securities Act”:  the Securities Act of 1933, as amended.

“Security Documents”:  the collective reference to the Guarantee and Collateral Agreement, the Mortgages (if any), the Control Agreements, the Intellectual Property Security Agreements and all other security documents hereafter delivered to the Administrative Agent or the Collateral Agent granting a Lien on any property of any Person to secure the Obligations of any Loan Party under any Loan Document or any Specified Hedge Agreement.

“Single Employer Plan”:  a single employer plan, as defined in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any Group Member or any ERISA Affiliate and no Person other than the Group Member and the ERISA Affiliates or (b) was so maintained and in respect of which the Group Member or any ERISA Affiliate could have liability under Section 4069 of ERISA in the event such plan has been or were to be terminated.

“Software”:  as defined in the definition of Intellectual Property.

“Solvent”:  as to any Person at any time, that (a) the fair value of the property of such Person is greater than the total amount of liabilities, including contingent liabilities, of such Person; (b) the present fair salable value of the assets of such Person is greater than the amount that will be required to pay the probable liability of such Person on the sum of its debts and other liabilities, including contingent liabilities; (c) such Person has not, does not intend to, and does not believe (nor should it reasonably believe) that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they become due (whether at maturity or otherwise); (d) such Person does not have unreasonably small capital with which to conduct the businesses in which it is engaged as such businesses are now conducted and are proposed to be conducted following the Closing Date and (e) it is not unable to pay its debts as they fall due.

“Special Flood Hazard Area”:  an area that FEMA’s current flood maps indicate has at least a one percent (1%) chance of a flood equal to or exceeding the base flood elevation (a 100-year flood) in any given year.

“Specified Hedge Agreement”:  any Hedge Agreement entered into by (a) any Loan Party and (b) any Qualified Counterparty, as counterparty; provided, that any release of Collateral or Subsidiary Guarantors effected in the manner permitted by this Agreement shall not require the consent of holders of obligations under Specified Hedge Agreements; provided, however, that notwithstanding such release, nothing herein shall limit the contractual rights of

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any such Qualified Counterparty set forth in such Specified Hedge Agreement.

“Specified Reinvestment Deferred Amount”:  with respect to any Specified Reinvestment Event, the aggregate Net Cash Proceeds received by any Group Member in connection therewith that are not applied to prepay the Term Loans pursuant to Section 3.2(c) as a result of the delivery of a Specified Reinvestment Notice.

“Specified Reinvestment Event”:  any Intellectual Property Out-Licensing Event in respect of which the Borrower has delivered a Specified Reinvestment Notice.

“Specified Reinvestment Notice”:  a written notice executed by a Responsible Officer and delivered to the Administrative Agent stating that no Event of Default has occurred and is continuing and that the Borrower (directly or indirectly through a Restricted Subsidiary) intends and expects to use all or a specified portion of the Net Cash Proceeds of an Intellectual Property Out-Licensing Event to acquire or repair fixed or capital assets or Intellectual Property useful in its business (including by making Permitted Acquisitions).

“Specified Reinvestment Prepayment Amount”:  with respect to any Intellectual Property Out-Licensing Event, the Specified Reinvestment Deferred Amount relating thereto less any amount expended prior to the relevant Specified Reinvestment Prepayment Date to acquire or repair fixed or capital assets or Intellectual Property useful in the Borrower’s or the Restricted Subsidiaries’ businesses (including by making Permitted Acquisitions) in accordance with the applicable Specified Reinvestment Notice.

“Specified Reinvestment Prepayment Date”:  with respect to any Specified Reinvestment Event, the earlier of (a) the date occurring twelve (12) months (or if the Borrower or a Restricted Subsidiary, as the case may be has entered into a legally binding commitment to reinvest such Specified Reinvestment Deferred Amount during such twelve (12) month period, eighteen (18) months) after such Specified Reinvestment Event and (b) the date on which the Borrower shall have determined not to, or shall have otherwise ceased to, acquire or repair fixed or capital assets or Intellectual Property useful in the Borrower’s or the Restricted Subsidiaries’ businesses with all or any portion of the relevant Specified Reinvestment Deferred Amount.

“Stock Certificates”:  Collateral consisting of certificates representing Capital Stock of any Subsidiary of the Borrower for which a security interest can be perfected by delivering such certificates.

“Subordinated Indebtedness”:  any unsecured Junior Indebtedness of the Borrower or a Subsidiary Guarantor the payment of principal and interest of which and other obligations of the Borrower or such Subsidiary Guarantor in respect thereof are subordinated to the prior payment in full of the Obligations on terms and conditions reasonably satisfactory to the Administrative Agent.

“Subsidiary”:  as to any Person, a corporation, partnership, limited liability company or other entity of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership or other entity are at the time owned, or the

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management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person.  Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a Subsidiary or Subsidiaries of the Borrower.

“Subsidiary Guarantor”:  each Subsidiary of the Borrower that guarantees the Obligations pursuant to a Loan Document or pursuant to Section 6.9.

“Survey”:  a survey of any Mortgaged Property (and all improvements thereon) which is (a) (i) prepared by a surveyor or engineer licensed to perform surveys in the jurisdiction where such Mortgaged Property is located, (ii) dated (or redated) not earlier than six months prior to the date of delivery thereof unless there shall have occurred within six months prior to such date of delivery any exterior construction on the site of such Mortgaged Property or any easement, right of way or other interest in the Mortgaged Property has been granted or become effective through operation of law or otherwise with respect to such Mortgaged Property which, in either case, can be depicted on a survey, in which events, as applicable, such survey shall be dated (or redated) after the completion of such construction or if such construction shall not have been completed as of such date of delivery, not earlier than 20 days prior to such date of delivery, or after the grant or effectiveness of any such easement, right of way or other interest in the Mortgaged Property, provided that the Borrower shall have a reasonable amount of time to deliver such redated survey, (iii) certified by the surveyor (in a manner reasonably acceptable to the Administrative Agent) to the Administrative Agent, the Collateral Agent and the Title Company, (iv) complying in all respects with the minimum detail requirements of the American Land Title Association as such requirements are in effect on the date of preparation of such survey and (v) sufficient for the Title Company to remove all standard survey exceptions from the title insurance policy (or commitment) relating to such Mortgaged Property and issue customary endorsements or (b) otherwise reasonably acceptable to the Collateral Agent.

“Swap Obligation”: with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.

“Syndication Agent”:  ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc. in its capacity as sole syndication agent under this Agreement.

“Taxes”:  all present or future taxes, levies, imposts, duties, charges, fees, deductions, withholdings (including backup withholding) or assessments imposed by any Governmental Authority, and any interest, penalties or additions to tax imposed with respect thereto.

“Tax Status Certificate”:  as defined in Section 3.10.

“Term Commitment”:  as to any Lender, the obligation of such Lender, if any, to make a Term Loan to the Borrower hereunder in a principal amount not to exceed the amount set forth on Schedule 1.1 or in the Assignment and Assumption pursuant to which such Lender became a party hereto, as the same may be changed from time to time pursuant to the terms hereof.  The original aggregate amount of the Term Commitments is $225,000,000.

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“Term Facility”:  the Term Commitments and the Term Loans made thereunder.

“Term Lender”:  each Lender that has a Term Commitment or that holds a Term Loan.

“Term Loan”:  as defined in Section 2.1, together with any Incremental Term Loans, if applicable.

“Term Loan Maturity Date”:  April 15, 2018.

“Term Note”: a promissory note of the Borrower payable to the order of any Lender in substantially the form of Exhibit E hereto, evidencing the indebtedness of the Borrower to such Lender resulting from the Term Advance owing to such Lender, as amended.

“Term Percentage”:  as to any Lender at any time, the percentage which such Lender’s Term Commitment then constitutes of the aggregate Term Commitments (or, at any time after the Closing Date, the percentage which the aggregate principal amount of such Lender’s Term Loans then outstanding constitutes the aggregate principal amount of the Term Loans then outstanding).

“Title Company”:  any title insurance company as shall be retained by Borrower and reasonably acceptable to the Administrative Agent.

“Total Consolidated EBITDA”: Consolidated EBTIDA, calculated for any period, for the Borrower and all of its Subsidiaries on a consolidated basis for such period.

“Total Leverage Ratio”:  at any date of determination, the ratio of (a) Consolidated Funded Debt as of such date to (b) Consolidated EBITDA for the period of four consecutive fiscal quarters ended on such date.

“Total Term Commitments”:  at any time, the aggregate amount of the Term Commitments then in effect.

“Transactions”:  collectively, (a) the consummation of the Merger, (b) the borrowing of the Term Loans on the Closing Date and (c) the other transactions contemplated by the Loan Documents.

“Transferee”:  any Assignee or Participant.

“Type”:  as to any Term Loan, its nature as an ABR Loan or a LIBOR Rate Loan.

“UCC Filing Collateral”:  Collateral consisting solely of assets for which a security interest can be perfected by filing a Uniform Commercial Code financing statement.

“Upfront Payment”:  for any Exclusive License, the aggregate cash payment paid to any Group Member on or prior to the consummation of the Exclusive License (and which, for the avoidance of doubt, shall not include any royalty, earnout, milestone payment, contingent payment or any other deferred payment that may be payable thereafter.)

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“Unasserted Contingent Obligations”:  as defined in the Guarantee and Collateral Agreement.

“United States”:  the United States of America.

“Unrestricted Subsidiary”:  any Subsidiary designated by the board of directors of the Borrower as an Unrestricted Subsidiary pursuant to Section 6.14, in each case, until such Person ceases to be an Unrestricted Subsidiary in accordance with Section 6.14 or ceases to be a Subsidiary.

“U.S. GAAP”: generally accepted accounting principles in effect from time to time in the United States.

“Voluntary Prepayment”:  a prepayment of the Term Loans.

“Weighted Average Life to Maturity”: when applied to any Indebtedness at any date, the number of years obtained by dividing:  (a) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (b) the then outstanding principal amount of such Indebtedness.

“Wholly Owned Subsidiary”:  as to any Person, any other Person, all of the Capital Stock of which (other than directors’ qualifying shares required by law) is owned by such Person directly and/or through other Wholly Owned Subsidiaries.

“Withdrawal Liability”:  any withdrawal liability incurred pursuant to Part I of Subtitle E of Title IV of ERISA.

1.2                               Other Definitional Provisions.

(a)                                 Unless otherwise specified therein, all terms defined in this Agreement shall have the defined meanings when used in the other Loan Documents or any certificate or other document made or delivered pursuant hereto or thereto.

(b)                                 As used herein and in the other Loan Documents, and any certificate or other document made or delivered pursuant hereto or thereto, (i) accounting terms relating to any Group Member not defined in Section 1.1 and accounting terms partly defined in Section 1.1, to the extent not defined, shall have the respective meanings given to them under GAAP, (ii) the words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation,” (iii) the word “incur” shall be construed to mean incur, create, issue, assume, become liable in respect of or suffer to exist (and the words “incurred” and “incurrence” shall have correlative meanings), (iv) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, Capital Stock, securities, revenues, accounts, leasehold interests and contract rights, (v) references to agreements or other Contractual Obligations shall, unless otherwise specified, be deemed to refer to such agreements or Contractual Obligations as

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amended, supplemented, restated or otherwise modified from time to time (subject to any applicable restrictions hereunder), (vi) any reference to any law or regulation herein shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time and (vii) any references herein to any Person shall be construed to include such Person’s successors and assigns.

(c)                                  The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section, Schedule and Exhibit references are to this Agreement unless otherwise specified.

(d)                                 The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.

(e)                                  Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP in effect as of the date hereof; provided that, (i) if either the Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then the Administrative Agent, the Borrower and the Lenders shall negotiate in good faith to amend such provision to preserve the original intent in light of the change in GAAP; provided that such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith; and (ii) non-cash gains, losses, income and expenses resulting from fair value accounting required by the applicable standard under GAAP and related interpretations shall be excluded.  For purposes of calculations made pursuant to the terms of this Agreement, GAAP will be deemed to treat operating leases and Capital Lease Obligations in a manner consistent with their treatment under generally accepted accounting principles as in effect on the Closing Date, notwithstanding any modifications or interpretive changes thereto that may occur thereafter.

(f)                                   When the payment of any obligation or the performance of any covenant, duty or obligation is stated to be due or performance required on a day which is not a Business Day, the date of such payment or performance shall extend to the immediately succeeding Business Day and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, with respect to any payment of interest on or principal of LIBOR Rate Loans, if such extension would cause any such payment to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.

SECTION 2.                            AMOUNT AND TERMS OF COMMITMENTS

2.1                               Term Commitments.  Subject to the terms and conditions hereof, each Lender severally agrees to make a term loan (a “Term Loan”) to the Borrower on the Closing Date in an amount not to exceed the amount of the Term Commitment of such Lender.  The

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Term Loans may from time to time be LIBOR Rate Loans or ABR Loans, as determined by the Borrower and notified to the Administrative Agent in accordance with Sections 2.2 and 3.3.

2.2                               Procedure for Term Loan Borrowing.  The Borrower shall give the Administrative Agent irrevocable notice in the form annexed hereto as Exhibit B (which notice must be received by the Administrative Agent prior to 2:00 p.m., New York City time, on the anticipated Closing Date or such later time as may be acceptable to the Administrative Agent) requesting that the applicable Lenders make the Term Loans on the Closing Date and specifying the amount to be borrowed.  Upon receipt of such notice the Administrative Agent shall promptly notify each applicable Lender thereof.  Not later than 12:00 Noon, New York City time, on the Closing Date, each Lender shall make available to the Administrative Agent at the Funding Office an amount in immediately available funds equal to the Term Loan or Term Loans to be made by such Lender.  The Administrative Agent shall make the proceeds of such Term Loan or Term Loans available to the Borrower on such Borrowing Date by wire transfer in immediately available funds to a bank account designated in writing by the Borrower to the Administrative Agent.

2.3                               Repayment of Term Loans.  On each Quarterly Payment Date, the Borrower shall repay to the Administrative Agent for the ratable account of the Lenders the principal amount of Term Loans then outstanding in an amount equal to 0.25% of the aggregate initial principal amounts of all Term Loans theretofore borrowed by the Borrower pursuant to Section 2.1 in accordance with the order of priority set forth in Section 3.8.  The remaining unpaid principal amount of the Term Loans and all other Obligations under or in respect of the Term Loans shall be due and payable in full, if not earlier in accordance with this Agreement, on the Term Loan Maturity Date.

2.4                               Incremental Facilities.

(a)                                 Borrower Request.  The Borrower may at any time and from time to time after the Closing Date by written notice to the Administrative Agent elect to request the establishment of one or more new term loan facilities with term loan commitments (each, an “Incremental Term Loan Commitment”) or one or more new revolving credit facilities with revolving credit commitments (each, an “Incremental Revolving Loan Commitment” and together with any Incremental Term Loan Commitment, the “Incremental Facilities”)), in each case, either pari passu with, or junior to, the existing Term Loan Facility, in an aggregate amount not to exceed $100,000,000; provided, that the Borrower may incur unlimited additional Incremental Facilities so long as, on a Pro Forma Basis (assuming that any such Incremental Revolving Loan Commitments are drawn in full and excluding the cash proceeds of any such Incremental Term Loans or Incremental Revolving Loan Commitments) and after giving effect to any acquisitions or Dispositions or repayment of Indebtedness after the beginning of the relevant determination period but prior to or simultaneous with the borrowing under such Incremental Facility, the First Lien Secured Leverage Ratio (as of the date of the most recent financial statements delivered pursuant to Section 6.1(a) or (b)) shall not exceed the First Lien Secured Leverage Ratio as in effect on the Closing Date (as calculated, on a Pro Forma Basis for the Transactions, as of the date of the then most recent financial statements of the then last ended fiscal quarter).  Each such notice shall specify (i) the date (each, an “Increase Effective Date”) on which the Borrower proposes that the Incremental Facilities shall be effective, which shall be a

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date not less than ten (10) Business Days after the date on which such notice is delivered to the Administrative Agent and (ii) the identity of each Person (which, if not a Lender, an Approved Fund or an Affiliate of a Lender, shall be reasonably satisfactory to the Administrative Agent) to whom the Borrower proposes any portion of such Incremental Facility be allocated and the amounts of such allocations (it being understood that the Borrower shall first seek commitments in respect of Incremental Facilities from existing Lenders, but no existing Lender will have an obligation to make a portion of any Incremental Facility).

(b)                                 Conditions.  An Incremental Facility shall become effective, as of such Increase Effective Date; provided that:

(i)                                     each of the conditions set forth in Section 5.2 shall be satisfied;

(ii)                                  no Default or Event of Default shall have occurred or be continuing or would result from the borrowings to be made on the Increase Effective Date; and

(iii)                               the Borrower shall deliver or cause to be delivered any amendments to the Loan Documents, customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction.

(c)                                  Terms of Incremental Term Loans and Incremental Term Loan Commitments.  The terms and provisions of the Incremental Term Loans made pursuant to the Incremental Term Loan Commitments shall be as follows:

(i)                                     terms and provisions of Loans made pursuant to Incremental Term Loan Commitments (the “Incremental Term Loans”) shall be on terms consistent with the existing Term Loans (except as otherwise set forth herein) and, to the extent not consistent with such existing Term Loans, on terms reasonably acceptable to the Administrative Agent (except as otherwise set forth herein) (it being understood that Incremental Term Loans may be part of the existing tranche of Term Loans or may comprise one or more new tranches of Term Loans);

(ii)                                  the weighted average life to maturity of all new Incremental Term Loans shall be no shorter than the remaining weighted average life to maturity of the existing Term Loans;

(iii)                               the maturity date of Incremental Term Loans shall not be earlier than the Term Loan Maturity Date;

(iv)                              until the date that is two (2) years from the Closing Date, the LIBOR Rate or ABR “floors” applicable to Incremental Term Loans shall be no higher than the LIBOR Rate or ABR “floors” applicable to the existing Term Loans;

(v)                                 the applicable yield for the Incremental Term Loans shall be determined by the Borrower and the applicable new Lenders; provided, however, that until the date that is two (2) years from the Closing Date, the applicable yield (which, for such purposes only, shall be deemed to include all upfront or similar fees, original issue discount (with original issue discount being equated to interest based on an assumed four-

44

year life to maturity) payable to all Lenders providing Incremental Term Loans, but shall exclude customary arrangement fees payable to any arranger in connection with the Incremental Term Loans) for any Incremental Term Loans shall not be greater than the highest applicable yield that may, under any circumstances, be payable with respect to Term Loans plus 50 basis points, except to the extent that the applicable yield applicable to the Term Loans is increased to the extent necessary to achieve the foregoing; and

(vi)                              Incremental Term Loan Facilities shall be on terms and pursuant to documentation to be determined provided that, to the extent such terms and documentation are not consistent with the existing Term Loans (except to the extent permitted by clauses (iii) and (v) above), they shall be reasonably satisfactory to the Administrative Agent.

(d)                                 Making of Incremental Term Loans.  On any Increase Effective Date on which Incremental Term Loan Commitments are effective, subject to the satisfaction of the foregoing terms and conditions, each Incremental Lender of such Incremental Term Loan Commitment shall make an Incremental Term Loan to the Borrower in an amount equal to its Incremental Term Loan Commitment.

(e)                                  Terms of Incremental Revolving Loan Commitments.  The terms and provisions of the Incremental Revolving Loan Commitments shall be mutually satisfactory to the Borrower and the Administrative Agent.

(f)                                   Equal and Ratable Benefit.  The Incremental Term Loans and Incremental Revolving Loan Commitments established pursuant to this Section 2.4 shall constitute loans and commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the security interests created by the Security Documents and the guarantees of the Subsidiary Guarantors.  The Loan Parties shall take any actions reasonably required by the Administrative Agent to ensure and/or demonstrate that the Lien and security interests granted by the Security Documents continue to be perfected under the Uniform Commercial Code or otherwise after giving effect to the establishment of any Incremental Facilities.

2.5                               Fees.  The Borrower shall pay to the Agents such fees as shall have been separately agreed upon in writing in the amounts and at times specified.  Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever (except as expressly agreed between the Borrower and the applicable Agent).

SECTION 3.                            GENERAL PROVISIONS APPLICABLE TO LOANS

3.1                               Optional Prepayments.  The Borrower may at any time and from time to time prepay the Term Loans, in whole or in part, without premium or penalty (other than as set forth in Section 3.2(g) below), upon irrevocable notice delivered to the Administrative Agent no later than 2:00 p.m., New York City time, three (3) Business Days prior thereto, in the case of LIBOR Rate Loans, and no later than 2:00 p.m., New York City time, one (1) Business Day prior thereto, in the case of ABR Loans, which notice shall specify the date and amount of prepayment, whether the prepayment is of LIBOR Rate Loans or ABR Loans and the manner in which such prepayment is to be applied to the Term Loans; provided, that if a LIBOR Rate Loan

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is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 3.11; provided further, that the Borrower may provide revocable notice (pursuant to customary arrangements to be reasonably approved by the Administrative Agent) of such prepayment if the source of the repayment is intended to be a refinancing facility.  Upon receipt of any such notice the Administrative Agent shall promptly notify each relevant Lender thereof.  If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein, together with accrued interest to such date on the amount prepaid.  Partial prepayments of LIBOR Rate Loans shall be in an aggregate principal amount of $500,000 or integral multiples of $100,000 in excess thereof.  Partial prepayments of ABR Loans shall be in an aggregate principal amount of $250,000 or integral multiples of $100,000 in excess thereof.  Notwithstanding the foregoing, a notice of prepayment delivered by the Borrower in accordance with this Section 3.1 may expressly state that such notice is conditioned upon the effectiveness of new credit facilities or other sources of refinancing and which effectiveness will result in the immediate payment in full in cash of all Obligations, in which case such notice may be revoked by the Borrower (by written notice to the Administrative Agent on or prior to the time on which the Term Loans would have been repaid in accordance with such notice of prepayment) if such condition is not satisfied or not reasonably likely to be satisfied and the Borrower shall pay any amounts due under Section 3.9, if any, in connection with any such revocation.

3.2                               Mandatory Prepayments; Prepayment Premium.

(a)                                 If any Indebtedness or Disqualified Capital Stock shall be incurred or issued by any Group Member after the Closing Date (other than Excluded Indebtedness), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such incurrence or issuance toward the prepayment of the Term Loans as set forth in Section 3.2(e).

(b)                                 If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale (other than an Intellectual Property Out-Licensing Event) or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 100% of such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans as set forth in Section 3.2(e); provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 3.2(e).

(c)                                  The Borrower shall, on each Excess Cash Flow Application Date, apply the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period toward the prepayment of the Term Loans as set forth in Section 3.2(e).  Except as provided below, each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) days after the date on which the financial statements referred to in Section 6.1(a) for the fiscal year of the Borrower with respect to which such prepayment is made are required to be delivered to the Lenders (commencing with the fiscal year of the Borrower ending December 31, 2013).  The Borrower shall, on each Specified Reinvestment Prepayment Date, apply the ECF Percentage of any Specified Reinvestment Prepayment Amount toward the prepayment of the Term Loans as set forth in

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Section 3.2(e).

(d)                                 If on any date any Group Member shall receive Net Cash Proceeds from a Disposition of all, or substantially all, of the Respiratory Business then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 60% of such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans as set forth in Section 3.2(e); provided, that, notwithstanding the foregoing, on the Reinvestment Prepayment Date with respect to such Disposition, an amount equal to the Reinvestment Prepayment Amount with respect to such Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 3.2(e).

(e)                                  Amounts to be applied in connection with prepayments made pursuant to this Section 3.2 shall be applied to the prepayment of the Term Loans in accordance with Section 3.8.  The application of any prepayment pursuant to this Section 3.2 shall be made, first, to ABR Loans and, second, to LIBOR Rate Loans.  Each prepayment of the Term Loans under this Section 3.2 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.

(f)                                   The Total Term Commitment (and the Term Commitments of each Lender) shall terminate in its entirety on the Closing Date.

(g)                                  Prepayment Premium.  In the event that, on or prior to the first anniversary of the Closing Date, the Borrower (x) makes any prepayment of Term Loans in connection with any Repricing Transaction or (y) effects any amendment of this Agreement resulting in a Repricing Transaction, the Borrower shall pay to the Administrative Agent, for the ratable account of each applicable Lender, (i) in the case of clause (x), a prepayment premium of 1% of the amount of the Term Loans being prepaid and (ii) in the case of clause (y), a payment equal to 1% of the aggregate amount of the applicable Term Loans outstanding immediately prior to such amendment.

3.3                               Conversion and Continuation Options.

(a)                                 The Borrower may elect from time to time to convert LIBOR Rate Loans to ABR Loans by giving the Administrative Agent prior irrevocable notice of such election no later than 2:00 p.m., New York City time, on the Business Day preceding the proposed conversion date; provided that any such conversion of LIBOR Rate Loans may only be made on the last day of an Interest Period with respect thereto.  The Borrower may elect from time to time to convert ABR Loans to LIBOR Rate Loans by giving the Administrative Agent prior irrevocable notice of such election no later than 2:00 p.m., New York City time, on the third Business Day preceding the proposed conversion date (which notice shall specify the length of the initial Interest Period therefor); provided that no ABR Loan may be converted into a LIBOR Rate Loan when any Event of Default has occurred and is continuing and the Administrative Agent has or the Required Lenders have determined in its or their sole discretion not to permit such conversions.  Upon receipt of any such notice the Administrative Agent shall promptly notify each relevant Lender thereof.

(b)                                 Any LIBOR Rate Loan may be continued as such upon the expiration of

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the then current Interest Period with respect thereto by the Borrower giving irrevocable notice to the Administrative Agent, in accordance with the applicable provisions of the term Interest Period set forth in Section 1.1, of the length of the next Interest Period to be applicable to such Loans; provided that no LIBOR Rate Loan may be continued as such when any Event of Default has occurred and is continuing and the Administrative Agent has or the Required Lenders have determined in its or their sole discretion not to permit such continuations; and provided, further, that if the Borrower shall fail to give any required notice as described above in this paragraph or if such continuation is not permitted pursuant to the preceding proviso such Loans shall be automatically converted to ABR Loans on the last day of such then expiring Interest Period.  Upon receipt of any such notice the Administrative Agent shall promptly notify each relevant Lender thereof.

3.4                               Limitations on LIBOR Tranches.  Notwithstanding anything to the contrary in this Agreement, all borrowings, conversions and continuations of LIBOR Rate Loans hereunder and all selections of Interest Periods hereunder shall be in such amounts and be made pursuant to such elections so that, (a) after giving effect thereto, the aggregate principal amount of the LIBOR Rate Loans comprising each LIBOR Tranche shall be equal to $500,000 or integral multiples of $100,000 in excess thereof and (b) no more than seven (7) LIBOR Tranches shall be outstanding at any one time.

3.5                               Interest Rates and Payment Dates.

(a)                                 Each LIBOR Rate Loan shall bear interest for each day during each Interest Period with respect thereto at a rate per annum equal to the LIBOR Rate determined for such day plus the Applicable Margin.

(b)                                 Each ABR Loan shall bear interest at a rate per annum equal to the ABR plus the Applicable Margin.

(c)                                  During the occurrence of any (x) Default or Event of Default with regard to Section 8(a) or (f) or (y) any other Event of Default, upon request written to the Administrative Agent by the Required Lenders, in each case, the Borrower shall pay interest on outstanding Obligations at a rate per annum equal to (i) in the case of Term Loans, the rate that would otherwise be applicable thereto pursuant to the foregoing provisions of this Section 3.5 plus 2%, and (ii) in the case of other Obligations, the non-default rate then applicable to ABR Loans plus 2%.

(d)                                 Interest shall be payable in arrears on each Interest Payment Date; provided that interest accruing pursuant to paragraph (c) of this Section 3.5 shall be payable from time to time on demand.

(e)                                  Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable law (the “Maximum Rate”).  If any Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Term Loans or, if it exceeds such unpaid principal, refunded to the Borrower.  In determining whether the interest contracted for, charged,

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or received by an Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable law, (i) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (ii) exclude voluntary prepayments and the effects thereof, and (iii) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.

3.6                               Computation of Interest and Fees.

(a)                                 Interest and fees payable pursuant hereto shall be calculated on the basis of a 360-day year for the actual days elapsed, except that, with respect to ABR Loans the rate of interest on which is calculated on the basis of clause (a) or (b) of the definition of ABR, the interest thereon shall be calculated on the basis of a 365-day (or 366-day, as the case may be) year for the actual days elapsed.  The Administrative Agent shall as soon as practicable notify the Borrower and the relevant Lenders of each determination of a LIBOR Rate.  Any change in the interest rate on a Loan resulting from a change in the ABR or the Eurocurrency Reserve Requirements shall become effective as of the opening of business on the day on which such change becomes effective.  The Administrative Agent shall as soon as practicable notify the Borrower and the relevant Lenders of the effective date and the amount of each such change in interest rate.

(b)                                 Each determination of an interest rate by the Administrative Agent pursuant to any provision of this Agreement shall be conclusive and binding on the Borrower and the Lenders in the absence of manifest error.  The Administrative Agent shall, at the request of the Borrower, promptly deliver to the Borrower a statement showing the quotations used by the Administrative Agent in determining any interest rate pursuant to Section 3.6(a).

3.7                               Inability to Determine Interest Rate.  If prior to the first day of any Interest Period:

(a)                                 the Administrative Agent shall have reasonably determined (which determination shall be conclusive and binding upon the Borrower) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the LIBOR Rate for such Interest Period, or

(b)                                 the Administrative Agent shall have received notice from the Required Lenders that the LIBOR Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to such Lenders (as reasonably determined and conclusively certified by such Lenders) of making or maintaining their affected Loans during such Interest Period,

the Administrative Agent shall give written notice thereof to the Borrower and the relevant Lenders as soon as practicable thereafter but at least two (2) Business Days prior to the first day of such Interest Period.  If such notice is given (x) any Term Loans that were to have been converted on the first day of such Interest Period to LIBOR Rate Loans shall be continued as ABR Loans and (y) any outstanding LIBOR Rate Loans shall be converted, on the last day of the then-current Interest Period, to ABR Loans.  Until such notice has been withdrawn by the Administrative Agent (which notice the Administrative Agent agrees to withdraw promptly upon

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a determination that the condition or situation which gave rise to such notice no longer exists), no further LIBOR Rate Loans shall be made or continued as such, nor shall the Borrower have the right to convert Loans to LIBOR Rate Loans.

3.8                               Pro Rata Treatment; Application of Payments; Payments.

(a)                                 Each borrowing by the Borrower from the Lenders hereunder, each payment by the Borrower on account of any reduction of the Commitments of the Lenders shall be made pro rata according to the respective Term Percentages of the relevant Lenders.

(b)                                 Each payment (including each prepayment) on account of principal of and interest on the Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Term Loans of the relevant tranche, if any, then held by the Lenders.  The amount of each principal prepayment of the Term Loans shall be applied to reduce the next four scheduled amortization payments of the Term Loans and then to the remaining installments as specified by the Borrower in the applicable notice of prepayment.  Amounts repaid or prepaid on account of the Term Loans may not be reborrowed.

(c)                                  All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 p.m., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the Funding Office, in Dollars and in immediately available funds.  The Administrative Agent shall distribute such payments to the Lenders promptly upon receipt in like funds as received.  If any payment hereunder (other than payments on the LIBOR Rate Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day.  If any payment on a LIBOR Rate Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day.  In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.

(d)                                 Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may (but shall not be required to), in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount.  If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate.  Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.

(e)                                  Notwithstanding anything to the contrary contained herein, the provisions

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of this Section 3.8 shall be subject to the express provisions of this Agreement which require or permit differing payments to be made to Non-Defaulting Lenders as opposed to Defaulting Lenders.

3.9                               Requirements of Law.

(a)                                 If the adoption of, taking effect of or any change in any Requirement of Law or in the administration, interpretation or application thereof or compliance by any Lender with any request, guideline or directive (whether or not having the force of law) from any central bank or other Governmental Authority made subsequent to the date hereof (and, for purposes of this Agreement (x) the ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇ Street Reform and Consumer Protection Act and all requests, guidelines or directives in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, pursuant to Basel III, in each case, are deemed to have gone into effect and adopted subsequent to the date hereof):

(i)                                     shall subject any Lender or Agent to any Tax of any kind whatsoever (other than Excluded Taxes, Indemnified Taxes and Other Taxes), with respect to its loans (including this Agreement and any other Loan Document), loan principal, letters of credit, commitments or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto;

(ii)                                  shall impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the account of, advances, loans or other extensions of credit by, or any other acquisition of funds by, any office of such Lender that is not otherwise included in the determination of the LIBOR Rate hereunder; or

(iii)                               shall impose on such Lender or the London interbank market any other condition, cost or expense affecting this Agreement or LIBOR Rate Loans made by such Lender;

and the result of any of the foregoing is to increase the cost to such Lender of making, converting into, continuing or maintaining LIBOR Rate Loans or, with respect to Taxes under clause (i) above, any Term Loan, or to reduce any amount receivable hereunder in respect thereof (whether of principal, interest or any other amount), then, in any such case, the Borrower shall promptly pay such Lender, upon its demand, any additional amounts necessary to compensate such Lender for such increased cost or reduced amount receivable.  If any Lender becomes entitled to claim any additional amounts pursuant to this paragraph, it shall notify the Borrower (with a copy to the Administrative Agent) of the event by reason of which it has become so entitled and setting forth in reasonable detail such increased costs.

(b)                                 If any Lender shall have determined that the adoption of, taking effect of or any change in any Requirement of Law regarding capital adequacy or liquidity requirements or in the interpretation or application thereof or compliance by such Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy or liquidity

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requirements (whether or not having the force of law) from any Governmental Authority made subsequent to the date hereof (and, for purposes of this Agreement (x) the ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇ Street Reform and Consumer Protection Act and all requests, guidelines or directives in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, pursuant to Basel III, in each case, are deemed to have gone into effect and adopted subsequent to the date hereof) shall have the effect of reducing the rate of return on such Lender’s or such corporation’s capital as a consequence of its obligations hereunder to a level below that which such Lender or such corporation could have achieved but for such adoption, change or compliance (taking into consideration such Lender’s or such corporation’s policies with respect to capital adequacy or liquidity requirements), then from time to time, after submission by such Lender to the Borrower (with a copy to the Administrative Agent) of a written request therefor setting forth in reasonable detail the charge and the calculation of such reduced rate of return, the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or such corporation for such reduction.

(c)                                  A certificate as to any additional amounts payable pursuant to this Section 3.9 submitted by any Lender to the Borrower (with a copy to the Administrative Agent) shall be conclusive in the absence of manifest error.  Failure or delay on the part of any Lender to demand compensation pursuant to this Section 3.9 shall not constitute a waiver of such Lender’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender pursuant to this Section 3.9 for any amounts incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Borrower of such Lender’s intention to claim compensation therefor; provided that, if the circumstances giving rise to such claim have a retroactive effect, then such one hundred and eighty (180) day period shall be extended to include the period of such retroactive effect.  The obligations of the Borrower pursuant to this Section 3.9 shall survive the termination of this Agreement and the payment of the Term Loans and all other amounts payable hereunder.  The Borrower shall pay the Lender the amount shown as due on any certificate referred to above within ten (10) days after receipt thereof.

3.10                        Taxes.

(a)                                 Payments Free of Indemnified Taxes and Other Taxes.  Any and all payments by or on account of any obligation of any Loan Party hereunder or under any other Loan Document shall be made free and clear of and without deduction or withholding for any Taxes, provided that if any applicable withholding agent shall be required by applicable law to deduct or withhold any Taxes from such payments, then (i) the applicable withholding agent shall make such deductions or withholdings, (ii) the applicable withholding agent shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and (iii) if such Tax is an Indemnified Tax, the sum payable by the applicable Loan Party shall be increased as necessary so that after all required deductions or withholdings have been made (including deductions or withholdings applicable to additional sums payable under this Section 3.10(a)) the applicable Agent or Lender, as the case may be, receives an amount equal to the sum it would have received had no such deductions or withholdings been made.

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(b)                                 Payment of Other Taxes by the Borrower.  Without limiting or duplication of the provisions of subsection (a) above, the Borrower shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.

(c)                                  Indemnification by the Borrower.  Without duplication of Section 3.10(a), the Borrower shall indemnify each Agent and Lender, within 10 Business Days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed on or attributable to amounts payable under this Section 3.10) imposed on, paid or payable by, or required to be withheld or deducted from a payment to, such Agent or Lender, as the case may be, with respect to this Agreement or any other Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate setting forth the amount of such payment or liability (together with a copy of any applicable documents from the IRS or other Governmental Authority that asserts such claim) delivered to the Borrower by a Lender (with a copy to the relevant Agent), or by an Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.

(d)                                 Evidence of Payments.  As soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority pursuant to this Section 3.10, the Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

(e)                                    Status of Lenders.  Each Lender shall deliver to the Borrower and to the Administrative Agent, whenever reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by applicable laws and such other reasonably requested information as will permit the Borrower or the Administrative Agent, as the case may be, (A) to determine whether or not payments made hereunder or under any other Loan Document are subject to Taxes, (B) to determine, if applicable, the required rate of withholding or deduction and (C) to establish such Lender’s entitlement to any available exemption from, or reduction of, applicable Taxes in respect of any payments to be made to such Lender pursuant to any Loan Document or otherwise to establish such Lender’s status for withholding tax purposes in an applicable jurisdiction.  If any form, certification or other documentation provided by a Lender pursuant to this Section 3.10(e) (including any of the specific documentation described below) expires or becomes obsolete or inaccurate in any respect, such Lender shall promptly notify the Borrower and the Administrative Agent in writing and shall promptly update or otherwise correct the affected documentation or promptly notify the Borrower and the Administrative Agent in writing that such Lender is not legally eligible to do so.  Notwithstanding anything to the contrary in this Section 3.10, the completion, execution and submission of documentation (other than documentation set forth in Section 3.10(f)(A), (f)(B)(i) through (iv) and (g) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.

(f)                                     Without limiting the generality of the foregoing,

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(A)                               any Lender that is a “United States person” within the meaning of Section 7701(a)(30) of the Code shall deliver to the Borrower and the Administrative Agent duly completed and executed originals of IRS Form W-9 or such other documentation or information prescribed by applicable laws (in such number of signed originals as shall be reasonably requested by the recipient) on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent) as will enable the Borrower or the Administrative Agent, as the case may be, to determine whether or not such Lender is subject to U.S. federal backup withholding or information reporting requirements; and

(B)                               each Foreign Lender that is entitled under the Code or any applicable treaty to an exemption from or reduction of U.S. federal withholding tax with respect to any payments hereunder or under any other Loan Document shall deliver duly completed and executed copies of whichever of the following is applicable to the Borrower and the Administrative Agent (in such number of signed originals as shall be reasonably requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement:

(i)                                     IRS Form W-8BEN (or any successor thereto) claiming eligibility for benefits of an income tax treaty to which the United States is a party;

(ii)                                  IRS Form W-8ECI (or any successor thereto) claiming that specified payments (as applicable) under this Agreement or any other Loan Documents (as applicable) constitute income that is effectively connected with such Foreign Lender’s conduct of a trade or business in the United States;

(iii)                               in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Sections 881(c) or 871(h) of the Code (the “Portfolio Interest Exemption”), (x) a certificate, substantially in the form of Exhibit ▇-▇, ▇-▇, ▇-▇ or D-4, as applicable (a “Tax Status Certificate”), to the effect that such Foreign Lender is not (A) a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of  the Borrower, within the meaning of Section 881(c)(3)(B) of the Code or (C) a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and that no interest to be received is effectively connected with a U.S. trade or business and (y) IRS Form W-8BEN (or any successor thereto);

(iv)                              where such Lender is a partnership (for U.S. federal income tax purposes) or otherwise not a beneficial owner (e.g., where such Lender has sold a participation), IRS Form W-8IMY (or any successor thereto) and all required supporting documentation (including, where one or more of the underlying beneficial owner(s) is claiming the benefits of the Portfolio Interest Exemption, a Tax Status Certificate of such beneficial owner(s) (provided that, if the Foreign Lender is a partnership and not a participating Lender, the Tax Status Certificate from the beneficial owner(s) may be provided by the Foreign Lender

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on behalf of the beneficial owner(s)); or

(v)                                 any other form prescribed by applicable laws as a basis for claiming exemption from or a reduction in United States federal withholding tax together with such supplementary documentation as may be prescribed by applicable Requirements of Laws to permit the Borrower or the Agent to determine the withholding or deduction required to be made; and

Notwithstanding anything to the contrary in this Section 3.10(f), no Lender shall be required to deliver any documentation pursuant to this Section 3.10(f) that it is not legally eligible to provide.

(g)                                  FATCA.  If a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA, such Lender shall use commercially reasonable efforts to deliver to the Borrower and the Administrative Agent, at the time or times prescribed by applicable law and otherwise at such times reasonably requested by the Borrower or the Administrative Agent, such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary to comply with FATCA obligations and to avoid the imposition of withholding obligations under FATCA with respect to such Lender.  Solely for purposes of this subsection (g), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

(h)                                 Refunds.  If any Agent or Lender determines, in its good faith discretion, that it has received a refund of any Indemnified Taxes as to which it has been indemnified by any Loan Party or with respect to which any Loan Party has paid additional amounts pursuant to this Section 3.10, it shall pay to the Borrower an amount, net of all expenses of such Agent or Lender (including any Taxes), as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund) as would leave the Loan Party in the same economic position as it would have been if no such Indemnified Taxes or Other Taxes had been imposed; provided that the Borrower, upon the request of such Agent or Lender, agrees to repay the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to such Agent or Lender in the event such Agent or Lender is required to repay such refund to such Governmental Authority.  Notwithstanding anything to the contrary in this subsection (h), in no event will the Agent or Lender be required to pay any amount to a Loan Party pursuant to this subsection (h) the payment of which would place the Agent or Lender in a less favorable net after-Tax position than the Agent or Lender would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid.  This subsection shall not be construed to require any Agent or Lender to make available its tax returns (or any other information relating to its taxes that it deems confidential) to the Borrower or any other Person.

(i)                                     Survival.  The obligations of the Loan Parties under this Section 3.10 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights

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by, or the replacement of, a Lender, the termination of the Commitments or this Agreement and the repayment, satisfaction or discharge of all obligations under any Loan Document.

3.11                        Indemnity.  The Borrower agrees to indemnify each Lender and to hold each Lender harmless from any loss, cost or expense that such Lender may sustain or incur as a consequence of (a) default by the Borrower in making a borrowing of, conversion into or continuation of LIBOR Rate Loans after the Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (b) default by the Borrower in making any prepayment of or conversion from LIBOR Rate Loans after the Borrower has given a notice thereof in accordance with the provisions of this Agreement, (c) the making of a prepayment of, or a conversion from, LIBOR Rate Loans on a day that is not the last day of an Interest Period with respect thereto or (d) any other default by the Borrower in the repayment of such LIBOR Rate Loans when and as required pursuant to the terms of this Agreement; provided, that the Borrower’s indemnification obligations shall not include any Lender’s loss of profit.  A certificate setting forth in reasonable detail the basis for requesting such amount actually incurred as to any amounts payable pursuant to this Section 3.11 submitted to the Borrower by any Lender shall be conclusive in the absence of manifest error.  This covenant shall survive the termination of this Agreement and the payment of the Term Loans and all other amounts payable hereunder.

3.12                        Change of Lending Office.  Each Lender agrees that, upon the occurrence of any event giving rise to the operation of Section 3.9 or 3.10(a), (b) or (c) with respect to such Lender, it will, if requested by the Borrower, use reasonable efforts (subject to overall policy considerations of such Lender)  to designate another lending office for any Term Loans affected by such event with the object of avoiding the consequences of such event; provided, that such designation is made on terms that, in the sole judgment of such Lender, cause such Lender and its lending office(s) to suffer no economic, legal or regulatory disadvantage or any unreimbursed costs or expenses; and provided, further, that nothing in this Section shall affect or postpone any of the obligations of the Borrower or the rights of any Lender pursuant to Section 3.9 or 3.10(a), (b) or (c).  The Borrower hereby agrees to pay all reasonable, documented costs and expenses incurred by any Lender in connection with any such designation.

3.13                        Replacement of Lenders.  The Borrower shall be permitted to replace any Lender that (a) requests reimbursement for amounts owing pursuant to Section 3.9 or 3.10(a) (such Lender, an “Affected Lender”), (b) is a Non-Consenting Lender or (c) is a Defaulting Lender, with a replacement financial institution or other entity; provided that (i) such replacement does not conflict with any Requirement of Law, (ii) in the case of an Affected Lender, prior to any such replacement, such Lender shall have taken no action under Section 3.12 that have actually eliminated the continued need for payment of amounts owing pursuant to Section 3.9 or 3.10(a), (iii) the replacement financial institution or entity shall purchase, at par, all Loans and other amounts owing to such replaced Lender on or prior to the date of replacement, (iv) the Borrower shall be liable to such replaced Lender under Section 3.11 if any LIBOR Rate Loan owing to such replaced Lender shall be purchased other than on the last day of the Interest Period relating thereto, (v) the replacement financial institution or entity shall be an Eligible Assignee, (vi) the replaced Lender shall be obligated to make such replacement in accordance with the provisions of Section 10.6 (provided that, except in the case of clause (c) hereof, the Borrower shall be obligated to pay the registration and processing fee referred to

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therein), (vii) until such time as such replacement shall be consummated, the Borrower shall pay all additional amounts (if any) required pursuant to Section 3.9 or 3.10(a), as the case may be, (viii) any such replacement shall not be deemed to be a waiver of any rights that the Borrower, the Administrative Agent or any other Lender shall have against the replaced Lender, and (ix) in the case of a Non-Consenting Lender, (A) the replacement financial institution or entity shall consent at the time of such assignment to each matter in respect of which the replaced Lender was a Non-Consenting Lender and (B) to the extent applicable, the Borrower shall pay any amounts due to such Non-Consenting Lender pursuant to Section 3.2(e).

3.14                        Evidence of Debt.

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

(b)                                 The Administrative Agent, on behalf of the Borrower (or, in the case of an assignment not required to be recorded in the Register in accordance with the provisions of Section 10.6(d), the assigning Lender, acting solely for this purpose as a non-fiduciary agent of the Borrower), shall maintain the Register (or, in the case of an assignment not required to be recorded in the Register in accordance with the provisions of Section 10.6(d), a Related Party Register), in each case pursuant to Section 10.6(d), and a subaccount therein for each Lender, in which shall be recorded (i) the amount of each Term Loan made hereunder and any Note evidencing such Term Loan, the Type of such Term Loan and each Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (iii) both the amount of any sum received by the Administrative Agent (or, in the case of an assignment not required to be recorded in the Register in accordance with the provisions of Section 10.6(d), the assigning Lender) hereunder from the Borrower and each Lender’s share thereof.

(c)                                  The entries made in the Register and the accounts of each Lender maintained pursuant to Section 3.14(a) shall, to the extent permitted by applicable law, be prima facie evidence of the existence and amounts of the obligations of the Borrower therein recorded (absent manifest error); provided, however, that the failure of any Lender or the Administrative Agent to maintain the Register or any such account, or any error therein, shall not in any manner affect the obligation of the Borrower to repay (with applicable interest) the Term Loans made to the Borrower by such Lender in accordance with the terms of this Agreement.

(d)                                 The Borrower agrees that, upon the request to the Administrative Agent by any Lender, the Borrower will execute and deliver to such Lender a promissory note of the Borrower evidencing any Term Loans, of such Lender, substantially in the form of Exhibit E, with appropriate insertions as to date and principal amount.

3.15                        Illegality.  Notwithstanding any other provision herein, if the adoption of or any change in any Requirement of Law or in the interpretation or application thereof shall make it unlawful for any Lender to make or maintain LIBOR Rate Loans as contemplated by this Agreement, (a) the commitment of such Lender hereunder to make LIBOR Rate Loans, continue

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LIBOR Rate Loans as such and convert ABR Loans to LIBOR Rate Loans shall forthwith be canceled and (b) such Lender’s Term Loans then outstanding as LIBOR Rate Loans, if any, shall be converted automatically to ABR Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law.  If any such conversion of a LIBOR Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, the Borrower shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.11.

3.16                        Extension Offers.

(a)                                 Notwithstanding anything to the contrary in this Agreement, pursuant to one or more offers (each, an “Extension Offer”) made from time to time by the Borrower to all Lenders, on a pro rata basis (based on the aggregate outstanding principal amount of the Term Loans) and on the same terms to each such Lender, the Borrower may from time to time extend the maturity date and availability period of the Term Loans, and otherwise modify the terms of the Term Loans, pursuant to the terms of the relevant Extension Offer (including, without limitation, by increasing the interest rate or fees payable in respect of the Loans (and related outstandings) (each, an “Extension”, and each group of Term Loans as so extended, as well as the original Term Loans (in each case not so extended), being a “tranche”; any Extension Loans shall constitute a separate tranche of Term Loans from the tranche of Term Loans from which such Term Loans were converted, so long as the following terms are satisfied:  (i) no Default or Event of Default shall have occurred and be continuing at the time the offering document in respect of an Extension Offer is delivered to the Lenders and no Event of Default shall exist immediately after the effectiveness of any Extension Loan, (ii) except as to interest rates, fees, final maturity date and premium, which shall, subject to immediately succeeding clauses (iii), (iv) and (v), be determined by the Borrower and set forth in the relevant Extension Offer), the Term Loans of any Lender extended pursuant to any Extension (“Extension Loans”) shall have the same terms (save for any terms that apply solely after the latest maturity date of the Term Loans hereunder prior to giving effect to such Extension) as the tranche of Term Loans subject to such Extension Offer, (iii) the final maturity date of any Extension Loans shall be no earlier than the then latest maturity date of Term Loans hereunder, (iv) the Weighted Average to Life Maturity of the Extension Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans extended thereby, (v) the amortization schedule applicable to the Extension Loans pursuant to Section 2.3 for the periods prior to the maturity date of the Term Loans hereunder shall not be increased, (vi) any Extension Loans may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any voluntary or mandatory repayments or prepayments hereunder, in each case as specified in the respective Extension Offer, (vii) if the aggregate principal amount of Term Loans (calculated on the face amount thereof), in respect of which Lenders shall have accepted the relevant Extension Offer shall exceed the maximum aggregate principal amount of Term Loans offered to be extended by the Borrower pursuant to such Extension Offer, then the Term Loans of such Lenders shall be extended ratably up to such maximum amount based on the respective principal amounts (but not to exceed actual holdings of record) with respect to which such Lenders have accepted such Extension Offer, (viii) all documentation in respect of such Extension shall be consistent with the foregoing, and (ix) any applicable Minimum Extension Condition shall be satisfied unless waived by the Borrower.  For the avoidance of doubt, no Lender shall be required to participate in any Extension.

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(b)                                 With respect to all Extensions consummated by the Borrower pursuant to this Section 3.16, the Extension Offer shall specify a minimum aggregate principal amount of Term Loans to be tendered (which shall not be less than $50,000,000) as a condition to the consummation of such Extension Offer (a “Minimum Extension Condition”).  The Administrative Agent and the Lenders hereby consent to the Extensions and the other transactions contemplated by this Section 3.16 (including, for the avoidance of doubt, payment of any interest, fees or premium in respect of any Extension Loans on such terms as may be set forth in the relevant Extension Offer) and hereby waive the requirements of any provision of this Agreement or any other Loan Document that may otherwise prohibit any such Extension or any other transaction contemplated by this Section 3.16.

(c)                                  No consent of any Lender or the Administrative Agent shall be required to effectuate any Extension, other than the consent of each Lender agreeing to such Extension with respect to one or more of its Term Loans (or a portion thereof).  The Lenders hereby irrevocably authorize the Administrative Agent and the Collateral Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrower as may be necessary in order to establish new tranches or sub-tranches in respect of the Term Loan so extended and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrowers in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 3.16.

(d)                                 In connection with any Extension, the Borrower shall provide the Administrative Agent at least five (5) Business Days’ (or such shorter period as may be agreed by the Administrative Agent) prior written notice thereof, and shall agree to such procedures, if any, as may be established by, or acceptable to, the Administrative Agent, in each case acting reasonably to accomplish the purposes of this Section 3.16.

(e)                                  The conversion of any Term Loans hereunder into Extension Loans in accordance with this Section 3.16 shall not constitute a voluntary or mandatory payment or prepayment for purposes of this Agreement.

SECTION 4.                            REPRESENTATIONS AND WARRANTIES

To induce the Agents and the Lenders to enter into this Agreement and to make the Term Loans, the Borrower hereby represents and warrants on the Closing Date that:

4.1                               Financial Condition.  The (i) (x) GAAP audited consolidated balance sheet and related statements of income, stockholders’ equity and cash flows of the Borrower and (y) GAAP audited consolidated balance sheet and related statements of income, members’ equity and cash flows of the Target, in each case, for each of the fiscal years ended December 31, 2010, 2011 and 2012, (ii) as soon as available and in any event within 45 days after the end of each fiscal quarter of the 2013 fiscal year ending at least 45 days prior to the Closing Date, unaudited consolidated balance sheets and related statements of income and cash flows of each of the Borrower and the Target for such fiscal quarter, for the period elapsed from the beginning of the 2013 fiscal year to the end of such fiscal quarter and for the comparable periods of the preceding fiscal year (with respect to which independent auditors shall have performed an SAS 100 review), and (iii) forecasts of the financial performance of the Borrower and its Subsidiaries

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(giving pro forma effect to the Transactions) on an annual basis, through December 31, 2017, present fairly in all material respects the consolidated financial condition of the Borrower as at such time periods, and the consolidated results of its operations and its cash flows for such fiscal periods.  The forecasts referenced in clause (iii) in the immediately preceding sentence have been prepared in good faith based on the assumptions set forth therein, which the Borrower believed to be reasonable assumptions at the time such forecasts were prepared, and present fairly in all material respects on a Pro Forma Basis the estimated financial position of the Borrower and its consolidated Subsidiaries as at and for each of the dates and periods set forth above, assuming that the events specified in the preceding sentence had actually occurred at such date or beginning of such period.

4.2                               No Change.  Since December 31, 2012, there has been no development or event that has had or could reasonably be expected to have a Material Adverse Effect.

4.3                               Corporate Existence; Compliance with Law.  Except as permitted under Section 7.3, each Group Member (a) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, to the extent such concept is recognized in its jurisdiction of incorporation, (b) has the organizational power and authority and the legal right, to own and operate its property, to lease the property it operates as lessee and to conduct the business in which it is currently engaged, (c) is duly qualified as a foreign entity and in good standing under the laws of each jurisdiction where its ownership, lease or operation of property or the conduct of its business requires such qualification, (d) is in compliance with the terms of its Organizational Documents and (e) is in compliance with the terms of all Requirements of Law (including Health Care Laws) and all Governmental Authorizations, except in case of clauses (b), (c) and (e), to the extent that the failure to do so could not reasonably be expected to have a Material Adverse Effect.

4.4                               Power; Authorization; Enforceable Obligations.  (a)  Each Loan Party has the organizational power and authority, and the legal right, to make, deliver and perform the Loan Documents to which it is a party and, in the case of the Borrower, to obtain extensions of credit hereunder.  (b)  Each Loan Party has taken all necessary organizational and other action to authorize the execution, delivery and performance of the Loan Documents to which it is a party and, in the case of the Borrower, to authorize the extensions of credit on the terms and conditions of this Agreement.  (c)  Subject to the Certain Funds Paragraph, no consent or authorization of, filing with, notice to or other act by or in respect of, any Governmental Authority or any other Person is required in connection with the Transactions or with the execution, delivery, performance, validity or enforceability of this Agreement or any of the Loan Documents, except those actions specified on Schedule 6.15 and except the filings referred to in Section 4.18 which filings have been, or will be, obtained or made and are in full force and effect on or before the Closing Date, and all applicable waiting periods shall have expired, in each case without any action being taken by any Governmental Authority that would restrain, prevent or otherwise impose adverse conditions on the Transactions, other than any such consent, authorizations, filings and notices the absence of which could not reasonably be expected to have a Material Adverse Effect.  (d)  Each Loan Document has been duly executed and delivered on behalf of each Loan Party party thereto.  (e)  This Agreement constitutes, and each other Loan Document upon execution will constitute, a legal, valid and binding obligation of each Loan Party party thereto, enforceable against each such Loan Party in accordance with its terms, except as

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enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity (whether enforcement is sought by proceedings in equity or at law).

4.5                               No Legal Bar.  The execution, delivery and performance of this Agreement and the other Loan Documents, the borrowings hereunder and the use of the proceeds thereof will not violate (a) the Organizational Documents of any Loan Party, (b) any Requirement of Law (including any Health Care Laws), Governmental Authorization or any Contractual Obligation of any Group Member and (c) will not result in, or require, the creation or imposition of any Lien on any Group Member’s respective properties or revenues pursuant to its Organizational Documents, any Requirement of Law or any such Contractual Obligation (other than the Liens created by the Security Documents and the Liens permitted under Sections 7.2(f) and (n)), except for any violation set forth in clause (b) or (c) which could not reasonably be expected to have a Material Adverse Effect.

4.6                               Litigation and Adverse Proceedings.  No litigation, investigation or proceeding of or before any arbitrator or Governmental Authority is pending or, to the knowledge of the Borrower, threatened in writing by or against any Group Member or against any of their respective properties or revenues (a) with respect to any of the Loan Documents, which would in any respect impair the enforceability of the Loan Documents, taken as a whole or (b) that could reasonably be expected to have a Material Adverse Effect, except litigation disclosed on the Borrower’s SEC filings prior to the Closing Date and set forth on Schedule XIV to the Perfection Certificate.

4.7                               Ownership of Property; Liens.

(a)                                 Each Group Member has title in fee simple (or local law equivalent) to all of its owned real property, a valid leasehold interest in all its leased real property, and good title to, or a valid leasehold interest in, license to, or right to use, all its other tangible Property material to its business, in all material respects, and no such Property is subject to any Lien except as permitted by Section 7.2, except, in each case, where the failure to have such title or other interest could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

(b)                                 Set forth on Schedule 4.7(b) hereto is a complete and accurate list of all Real Property owned in fee by any Loan Party (together with any fee owned property acquired directly or indirectly by any Loan Party thereof after the Closing Date, the “Owned Properties”), showing as of the date hereof, and as of each other date such Schedule 4.7(b) is required to be supplemented hereunder, the street address, state, record owner and gross book value thereof.  Each such Loan Party has good, marketable and insurable fee simple title to such Real Property, free and clear of all Liens, other than Permitted Liens.

(c)                                  Set forth on Schedule 4.7(c) is a complete and accurate list of all leases of real property under which any Loan Party is the lessee (the “Leased Properties”), showing as of the date hereof the street address, county or other relevant jurisdiction, state, lessor, and lessee thereof.  Except as set forth on Schedule 4.7(c), the Leased Property leases are valid, binding, enforceable and in full force and effect, and the Borrower or other applicable Loan Party holds a

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valid and existing leasehold interest under each such lease, subject to proper authorization and execution of such lease by the other party and the application of any bankruptcy or creditor’s rights laws.

4.8                               Intellectual Property.  All Intellectual Property owned by the Group Members is owned free and clear of all Liens other than (i) as permitted by Section 7.2, Section 7.4 or the Security Documents, (ii)  licenses granted in the ordinary course of business (including, without limitation, in connection with the sale or provision by Group Members of products or services or the grant of rights to licensees to manufacture, use, sell, offer to sell or import products or to use, sell or offer to sell processes or services) in existence as of the date hereof and any amendment, renewal or extension thereof or thereto, and (iii) as could not reasonably be expected to have a Material Adverse Effect.  Except as could not reasonably be expected to have a Material Adverse Effect:  (a) to the knowledge of the Borrower, the conduct of, and the use of Intellectual Property in, the business of the Group Members as currently conducted (including the products and services of the Group Members) does not infringe, misappropriate, or otherwise violate the Intellectual Property rights of any other Person; (b) there is no such outstanding claim asserted in writing (including in the form of offers or invitations to obtain a license), threatened in writing or pending before any Governmental Authority against any Group Member; (c) to the knowledge of the Borrower, no Person is infringing, misappropriating, or otherwise violating any Intellectual Property of any Group Member, and there has been no such claim asserted or threatened against any third party by any Group Member or any Loan Party or any other Person, except claims disclosed on the Borrower’s SEC filings prior to the Closing Date and set forth on Schedule XIV to the Perfection Certificate; (d) each Group Member has taken all formal or procedural actions (including payment of fees) necessary to maintain the Intellectual Property owned by it; and (e) each Group Member has complied in all material respects with all applicable laws, as well as its own rules, policies, and procedures, relating to privacy, data protection, and the collection and use of personal information collected, used, or held for use by such Group Member.

4.9                               Taxes.  Each Loan Party has filed or caused to be filed all federal, state and other material tax returns that are required to be filed by it and all such tax returns are true, correct, and complete in all material respects; each Loan Party has paid all federal, state and other taxes and any assessments made in writing against it or any of its property by any Governmental Authority (other than any which are not yet due or the amount or validity of which is currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided on the books of the relevant Loan Party); no tax Lien has been filed (other than for taxes not yet due or the amount or validity of which is currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided on the books of the relevant Loan Party); and no Loan Party is aware of any proposed or pending tax assessments, deficiencies or audits with respect to such Loan Party that could be reasonably expected to, individually or in the aggregate, result in a Material Adverse Effect.

4.10                        Federal Reserve Regulations.  No Group Member is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of buying or carrying Margin Stock.  No part of the proceeds of any extension of credit under this Agreement will be used for any purpose that violates or would be inconsistent with the

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provisions of Regulation T, U or X of the Board.  If requested by any Lender or the Administrative Agent, the Borrower will furnish to the Administrative Agent and each Lender a statement to the foregoing effect in conformity with the requirements of FR Form G-3 or FR Form U-1, as applicable, referred to in Regulation U.

4.11                        Labor Matters.  Except as, in the aggregate, could not reasonably be expected to have a Material Adverse Effect:  (a) there are no strikes or other labor disputes against any Group Member pending or, to the knowledge of the Borrower, threatened; (b) hours worked by and payment made to employees of each Group Member have not been in violation of the Fair Labor Standards Act, as amended, or any other applicable Requirement of Law dealing with such matters; and (c) all payments due from any Group Member on account of employee health and welfare insurance or other similar employee taxes have been paid or accrued as a liability on the books of the relevant Group Member.

4.12                        ERISA.

(a)                                 No ERISA Event has occurred or is reasonably expected to occur with respect to any Plan, and each Plan is in compliance in all respects with the applicable provisions of ERISA and the Code, except for such failures to comply, in the aggregate for all such failures, that could not reasonably be expected to have a Material Adverse Effect.  Schedule SB, (Actuarial Information) to the most recent annual report (Form 5500 Series) for each Plan (if any), copies of which have been filed with the United States Department of Labor and furnished to the Lenders, is complete and accurate and fairly presents the funding status of such Plan, except as could not reasonably be expected to have a Material Adverse Effect, and since the date of such Schedule SB there has been no material adverse change in such funding status.  The present value of all accrued benefits under each Single Employer Plan (based on those assumptions used to fund such Plans), if any, did not, as of the last annual valuation date prior to the date on which this representation is made or deemed made, exceed the value of the assets of such Plan allocable to such accrued benefits by more than $25,000,000.  Neither any Group Member nor any ERISA Affiliate has incurred or is reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan.  Neither any Group Member nor any ERISA Affiliate has been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in Reorganization, Insolvent or has been determined to be in “endangered” or “critical” status within the meaning of Section 432 of the Code or Section 305 of ERISA, and no such Multiemployer Plan is reasonably expected to be in Reorganization, Insolvent or in “endangered” or “critical” status.

(b)                                 All Non-U.S. Pension Plans have been established, operated, administered and maintained in compliance with all laws, regulations and orders applicable thereto except for such failures to comply, in the aggregate for all such failures, that could not reasonably be expected to have a Material Adverse Effect.  All premiums, contributions, and any other amounts required by applicable Non-U.S. Pension Plan documents or applicable laws have been paid or accrued as required, except for premiums, contributions and amounts that, in the aggregate for all such obligations, could not reasonably be expected to have a Material Adverse Effect.

4.13                        Investment Company Act; Other Regulations.  No Loan Party is an “investment company,” or a company “controlled” by an “investment company,” within the

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meaning of the Investment Company Act of 1940, as amended.  No Loan Party is subject to regulation under any Requirement of Law (other than Regulation X of the Board, as amended) that limits its ability to incur Indebtedness.

4.14                        Capital Stock and Ownership Interests of Subsidiaries.  Schedule 4.14 sets forth the name and jurisdiction of formation or incorporation of each Group Member and, as to each such Group Member other than the Borrower, states the authorized and issued capitalization of such Group Member, the beneficial and record owners thereof and the percentage of each class of Capital Stock owned by any Loan Party.  Except as listed on Schedule 4.14, as of the Closing Date, no Group Member owns any interests in any joint venture, partnership or similar arrangements with any Person.

4.15                        Use of Proceeds.  The proceeds of the Term Loans shall be used to finance a portion of the Merger consideration and to pay fees and expenses related to the Transactions.

4.16                        Environmental Matters.  Except as, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect:

(a)                                 the facilities and properties currently or formerly owned, leased or operated by any Group Member (the “Group Member Properties”) do not contain any Materials of Environmental Concern in amounts or concentrations or under circumstances that constitute or constituted a violation of, or could reasonably be expected to give rise to liability under, any Environmental Law;

(b)                                 no Group Member has received nor is aware of any claim, demand, notice of violation, noncompliance, or actual or potential liability with respect to any Environmental Laws with regard to any of the Properties or relating to any Group Member, nor does the Borrower have knowledge or reason to believe that any such claim, demand or notice will be received or is being threatened;

(c)                                  Materials of Environmental Concern have not been transported or disposed of from the Properties by any Group Member or, to the Borrower’s knowledge, by any other person in violation of, or in a manner or to a location that could reasonably be expected to give rise to liability under, any Environmental Law, nor have any Materials of Environmental Concern been generated, treated, stored or disposed of at, on or under any of the Properties in violation of, or in a manner that could reasonably be expected to give rise to liability under, any applicable Environmental Law;

(d)                                 no judicial proceeding or governmental or administrative action is pending or, to the knowledge of the Borrower, threatened, under any Environmental Law to which any Group Member is or, to the Borrower’s knowledge, will be named as a party, nor are there any consent decrees or other decrees, consent orders, administrative orders or other orders, or other administrative or judicial requirements outstanding under any Environmental Law with respect to the Properties or relating to any Group Member;

(e)                                  there has been no Release or threat of Release of Materials of Environmental Concern at, on, under or from the Properties, or arising from or related to the operations of any Group Member in connection with the Properties or otherwise, in

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violation of or in amounts or in a manner that could reasonably be expected to give rise to liability under Environmental Laws;

(f)                                   each Group Member, the Properties and all operations at the Properties are in compliance, and, to the Borrower’s knowledge, have been in compliance, with all applicable Environmental Laws; and

(g)                                  no Group Member has assumed any liability of any other Person under Environmental Laws, nor is any Group Member paying for or conducting , in whole or in part,  any  response or other corrective action to address any Materials of Environmental Concern at any location pursuant to any Environmental Law.

4.17                        Accuracy of Information, etc.  No written statement contained in any document, certificate or statement furnished by any Loan Party to the Administrative Agent or the Lenders, or any of them, for use in connection with the transactions contemplated by this Agreement or the other Loan Documents (including the Confidential Information Memorandum), when taken as a whole, contained as of the date such statement, information, document or certificate was furnished, any untrue statement of a material fact or omitted to state a material fact necessary to make the statements contained herein or therein not misleading in the light of the circumstances under which such statements were made; provided, however, that with respect to projections, the Borrower represents only that the same were prepared in good faith and are based upon assumptions believed by management of the Borrower to be reasonable at the time made, it being recognized by the Lenders that such financial information as it relates to future events is not to be viewed as fact, is by its nature inherently uncertain and that actual results during the period or periods covered by such financial information may differ from the projected results set forth therein by a material amount; it being understood that for purposes of this Section 4.17 such information shall not include information of a general economic or industry-specific nature contained in the materials referenced above.

4.18                        Security Documents.  The Guarantee and Collateral Agreement and each other Security Document is, or upon execution, will be, effective to create in favor of the Collateral Agent, for the benefit of the Secured Parties, a valid first priority security interest in the Collateral described therein (to the extent a security interest can be created therein under the Uniform Commercial Code, where applicable.  In the case of the Pledged Equity Interests described in the Guarantee and Collateral Agreement, when stock or interest certificates representing such Pledged Equity Interests (along with properly completed stock or interest powers and, where applicable, stock transfer forms, in each case, endorsing the Pledged Equity Interest and executed by the owner of such shares or interests) are delivered to the Collateral Agent, and in the case of the other Collateral described in the Guarantee and Collateral Agreement or any other Security Document (other than deposit accounts), when financing statements and other filings specified on Schedule 4.18 in appropriate form are filed in the offices specified on Schedule 4.18(a), the Collateral Agent, for the benefit of the Secured Parties, shall, under New York law, have a fully perfected first priority Lien on, and security interest in, all right, title and interest of the Loan Parties in such Collateral to the extent perfection can be obtained by filing a UCC financing statement or subject to any customary reservations and qualifications contained in customary legal opinions rendered under the laws of the applicable jurisdiction, perfection can be obtained by the appropriate filing under such other applicable law,

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as security for the Obligations, in each case prior and superior in right to any other Person (except Liens permitted by Section 7.2) subject in the case of the Intellectual Property that is the subject of any application or registration in the United States Patent and Trademark Office or the United States Copyright Office (other than intent to use Trademark applications), to the recordation of appropriate evidence of the Collateral Agent’s Lien in the United States Patent and Trademark Office and/or United States Copyright Office, as appropriate, and the taking of actions and making of filings necessary under the applicable Requirements of Law to obtain the equivalent of perfection.  In the case of Collateral that consists of deposit accounts, securities accounts and/or commodity accounts, each of which are listed in Schedules I and II of the Perfection Certificate with appropriate identifying information, when a Control Agreement is executed and delivered by all parties thereto with respect to such accounts, the Collateral Agent, for the benefit of the Secured Parties, shall have a fully perfected first priority Lien on, and security interest in, all right, title and interest of the Loan Parties in such Collateral and the proceeds thereof, as security for the Obligations, prior and superior to any other Person except as provided under the applicable Control Agreement with respect to the financial institution party thereto.

4.19                        Solvency.  The Borrower and its Subsidiaries (on a consolidated basis), after giving effect to the Transactions and the incurrence of all Indebtedness and obligations being incurred in connection herewith and therewith, will be Solvent.

4.20                        Senior Indebtedness.  The Obligations constitute “senior debt,” “senior indebtedness,” “designated senior debt,” “guarantor senior debt” or “senior secured financing” (or any comparable term) of each Loan Party under and as defined in any documentation relating to Subordinated Indebtedness.

4.21                        No Default.  No Default or Event of Default is continuing or has or could reasonably be expected to result from the making of the Term Loans or the entry into, performance of, or any transaction contemplated by, any Loan Document.

4.22                        Anti-Terrorism Laws.

(a)                                 None of the Loan Parties, nor any Subsidiary of the Borrower or any director, officer or employee thereof, nor, to the Borrower’s knowledge, any agent or representative of the Borrower acting or benefiting in any capacity in connection with the Term Loans or other transactions hereunder or any of its Subsidiaries, is, or is owned or controlled by any of the following (each a “Blocked Person”):

(i)                                     a Person that is currently subject to any U.S. sanctions administered or enforced by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”);

(ii)                                  a Person that is listed in the annex to, or is otherwise subject to the provisions of, Executive Order No. 13224;

(iii)                               a Person with which any Lender is prohibited from dealing or otherwise engaging in any transaction by any Anti-Terrorism Law;

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(iv)                              a Person that is located, organized or resident in a country or territory that is the subject of U.S. sanctions (including, without limitation, Burma/Myanmar, Cuba, Iran, Libya, North Korea, Sudan and Syria);

(v)                                 a Person that commits, threatens or conspires to commit or supports “terrorism” as defined in Executive Order No. 13224;

(vi)                              a Person that is named as a “specially designated national” on the most current list published by the United States Treasury Department’s Office of Foreign Asset Control at its official website or any replacement website or other replacement official publication of such list; or

(vii)                           a Person who is affiliated or associated with a person listed above.

(b)                                 No Loan Party, or, to the knowledge of any Loan Party, any of its Subsidiaries, is in violation of any Anti-Terrorism Law or engages in or conspires to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any Anti-Terrorism Law.

(c)                                  No Loan Party, or to the knowledge of any Loan Party, any of its agents acting in any capacity in connection with the Term Loans or other transactions hereunder (i) conducts any business or engages in making or receiving any contribution of funds, goods or services to or for the benefit of any Blocked Person or (ii) deals in, or otherwise engages in any transaction relating to, any property or interests in property blocked pursuant to Executive Order No. 13224.

(d)                                 The Borrower will not, directly or indirectly, use the proceeds of the Term Loans or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner or other Person for the purpose of funding or financing the activities of any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of any U.S. sanctions administered by OFAC, or in any other manner that will result in a violation of Anti-Terrorism Laws by any Person.

(e)                                  To the extent applicable, each of the Borrower and its Subsidiaries is in compliance, in all material respects, with (a) the Trading with the Enemy Act, as amended, and each of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) and any other enabling legislation or executive order relating thereto, and (b) the Patriot Act.  No part of the proceeds of the Term 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 (“FCPA”) and the Borrower and its Subsidiaries and affiliates have conducted their businesses in compliance in all material respects with the FCPA and have instituted and maintain and will continue to maintain policies and procedures designed to promote and achieve compliance with the FCPA in all material respects and this Section 4.22.

4.23                        Insurance.  Schedule XV of the Perfection Certificate sets forth a true,

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complete and correct description of all material property and general liability insurance maintained by or on behalf of each Loan Party as of the Closing Date.  As of such date, such insurance is in full force and effect.

SECTION 5.                            CONDITIONS PRECEDENT

5.1                               Conditions to Initial Extension of Credit.  The agreement of each Lender to make the initial extension of credit requested to be made by it is subject to the satisfaction or waiver, prior to or concurrently with the making of such extension of credit on the Closing Date of the following conditions precedent:

(a)                                 Loan Documents.  The Administrative Agent shall have received (i) this Agreement, executed and delivered by each of the Administrative Agent, the Collateral Agent, the Borrower and each other Loan Party that is a party hereto and each Person that is a Lender as of the Closing Date, (ii) the Guarantee and Collateral Agreement, executed and delivered by the Borrower and each other Loan Party that is a party thereto, (iii) a Perfection Certificate executed and delivered by the Borrower, (iv) a Note executed by the Borrower in favor of each Lender that has requested a Note and (v) the Engagement Letter, executed and delivered by the Borrower and the Lead Arranger.

(b)                                 Transactions.  The following transactions shall have been or shall concurrently be consummated, in each case on terms and conditions reasonably satisfactory to each Agent and each Lender:

(i)                                     the Merger shall be consummated prior to the initial funding of the Term Loans in accordance with the Merger Documentation;

(ii)                                  the Administrative Agent shall have received reasonably satisfactory evidence that Merger Sub shall have merged with and into the Borrower; and

(iii)                               the Refinancing Transaction shall have been consummated in full to the reasonable satisfaction of the Lenders with all Liens in favor of the existing lenders thereunder being unconditionally released; the Administrative Agent shall have received executed “pay-off” letters in form and substance reasonably satisfactory to the Administrative Agent with respect to the Existing Credit Agreements and the Administrative Agent shall have received such UCC termination statements together with any other release documentation reasonably requested by the Administrative Agent; provided that, to the extent the Indebtedness outstanding pursuant to the Fifth Street Credit Agreement is set forth on Schedule 7.1, the Administrative Agent shall receive written confirmation of the repayment in full of all such Indebtedness from the lenders thereunder no later than 12:00 Noon, New York City time, on April 29, 2013.

(c)                                  Financial Statements.  The Lead Arranger and the Administrative Agent shall have received prior to the Closing Date the financial statements described in Section 4.1.

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(d)                                 Lien Searches.  The Administrative Agent shall have received the results of a recent lien search in each of the jurisdictions where the Loan Parties are located, and such search shall reveal no Liens on any of the assets of the Loan Parties except for Liens permitted by Section 7.2 or discharged on or prior to the Closing Date pursuant to documentation reasonably satisfactory to the Administrative Agent.

(e)                                  Fees.  The Borrower and its Subsidiaries shall have paid all fees then payable under, the Fee Letter.  The Lenders, the Lead Arranger and the Agents shall have received payment for all reasonable and documented costs and expenses required to be paid (including without limitation reasonable fees and disbursements of counsel) on or prior to such date under the terms of the Loan Documents to the extent invoiced one Business Day prior to the Closing Date.

(f)                                   Closing Certificates.  The Administrative Agent shall have received (i) a certificate of each Loan Party, dated the Closing Date, certifying (A) that attached thereto is a true and complete copy of each Organizational Document of such Loan Party certified (to the extent applicable) as of a recent date by the Secretary of State of the state of its organization, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party and, in the case of the Borrower, the incurrence of the Term Loans hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect as of the Closing Date, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party (together with a certificate of another officer as to the incumbency and specimen signature of the secretary or assistant secretary executing the certificate required by this clause (i)) and (D) a certificate as to the good standing of each Loan Party (in so-called “long-form” if available) as of a recent date, from the Secretary of State of the state of its organization and (ii) a certificate, dated the Closing Date and signed by a Responsible Officer of the Borrower, confirming compliance with the conditions precedent set forth in this Section 5.1(f).

(g)                                  Legal Opinions.  The Administrative Agent shall have received the legal opinion of ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, New York counsel to the Borrower and its Subsidiaries, in form reasonably acceptable to the Administrative Agent and addressed to the Agents and the Lenders.

(h)                                 Pledged Equity Interests; Stock Powers; Pledged Notes.  The Collateral Agent shall have received (i) the certificates representing the shares of Capital Stock pledged pursuant to the Guarantee and Collateral Agreement, if applicable, together with an undated stock power or, if applicable, blank stock transfer, for each such certificate executed in blank by a duly authorized officer of the pledgor thereof and (ii) each promissory note (if any) pledged to the Administrative Agent pursuant to the Guarantee and Collateral Agreement endorsed (without recourse) in blank (or accompanied by an executed transfer form in blank) by the pledgor thereof.

(i)                                     Filings, Registrations and Recordings.  Subject in each case to the Certain

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Funds Paragraph, each document (including any Uniform Commercial Code financing statement and any Intellectual Property Security Agreement, and other than except those documents specified on Schedule 6.15) required by the Guarantee and Collateral Agreement or under law or reasonably requested by the Collateral Agent to be filed, registered or recorded in order to create in favor of the Collateral Agent, for the benefit of the Secured Parties, a perfected Lien on the Collateral described therein, prior and superior in right to any other Person (other than with respect to Liens expressly permitted by Section 7.2), shall be in proper form for filing, registration or recordation; notwithstanding the foregoing, in no event shall any filing, registration or recordation outside the United States be required to perfect a Lien against a Domestic Subsidiary’s Collateral that is located outside the United States.

(j)                                    Solvency Certificate.  The Administrative Agent shall have received a solvency certificate in the form of Exhibit J, executed as of the Closing Date by the chief financial officer of the Borrower.

(k)                                 No Legal Bar.  The borrowings and the use of the proceeds thereof on the Closing Date do not violate (a) the Organizational Documents of any Loan Party, (b) any Requirement of Law (including any Health Care Laws), Governmental Authorization or any Contractual Obligation of any Group Member and (c) will not result in, or require, the creation or imposition of any Lien on any Group Member’s respective properties or revenues pursuant to its Organizational Documents, any Requirement of Law or any such Contractual Obligation (other than the Liens created by the Security Documents and the Liens permitted under Sections 7.2(f) and (n)), except for any violation set forth in clause (b) or (c) which could not reasonably be expected to have a Material Adverse Effect.

(l)                                     Patriot Act, Etc.  The Lenders shall have received, no later than 3 Business Days in advance of the Closing Date, all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, as reasonably requested in writing by the Administrative Agent at least 10 days prior to the Closing Date.

(m)                             Closing Date Material Adverse Effect.  Except as set forth in the disclosure schedules accompanying the Merger Agreement (provided that, any information set forth in any such schedule or incorporated in any section of the Merger Agreement shall be considered to have been set forth in each other schedule to the Merger Agreement and shall be deemed to modify this clause (m), in each case, if the relevance of the disclosure set forth in such schedule to another schedule or this clause (m) is reasonably apparent on the face of such disclosure schedules to the Merger Agreement), since December 31, 2012, there shall not have occurred a Closing Date Material Adverse Effect.

(n)                                 Representations and Warranties.  Each of the representations and warranties made by any Loan Party in or pursuant to Sections 4.3(a) and (b), 4.4(a), (b) and (d), 4.10, 4.13, 4.18, 4.19 and 4.22 shall be true and correct in all material respects (or in all respects where qualified by materiality or Material Adverse Effect) on and as of

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such date as if made on and as of such date (except to the extent made as of a specific date, in which case such representation and warranty shall be true and correct in all material respects (or in all respects where qualified by materiality or Material Adverse Effect) on and as of such specific date).

(o)                                 Merger Agreement Representations and Warranties.  Except as set forth in the schedules to the Merger Agreement, each of the representations and warranties made by the Target in the Merger Agreement that are material to the interests of the Lenders shall be true and correct as of such date as if made on and as of such date, but only to the extent the Borrower or one of its Subsidiaries has the right to terminate its obligations under the Merger Agreement or no longer has any obligation to close the Merger as a result of a breach or inaccuracy of any such representation or warranty in the Merger Agreement.

(p)                                 Notices.  The Borrower shall have delivered to the Administrative Agent the notice of borrowing for such extension of credit in accordance with this Agreement.

In determining the satisfaction of the conditions specified in this Section 5.1, (x) to the extent any item is required to be satisfactory to any Lender, such item shall be deemed satisfactory to each Lender which has not notified the Administrative Agent in writing prior to the occurrence of the Closing Date that the respective item or matter does not meet its satisfaction and (y) in determining whether any Lender is aware of any fact, condition or event that has occurred and which could reasonably be expected to have a Material Adverse Effect, each Lender which has not notified the Administrative Agent in writing prior to the occurrence of the Closing Date of such fact, condition or event shall be deemed not to be aware of any such fact, condition or event on the Closing Date.  Upon the Administrative Agent’s good faith determination that the conditions specified in this Section 5.1 have been met (after giving effect to the preceding sentence), then the Closing Date shall have been deemed to have occurred, regardless of any subsequent determination that one or more of the conditions thereto had not been met (although the occurrence of the Closing Date shall not release Borrower or any Loan Party (or any of their respective Affiliates) from any liability for failure to satisfy one or more of the applicable conditions contained in this Article V).

Notwithstanding anything to the contrary contained above in this Section 5.1, to the extent any Collateral is not provided (or any related required actions under this Section 5.1 are not taken) on the Closing Date after the Loan Parties’ use of commercially reasonable efforts to do so, the delivery of such Collateral (and the taking of the related required actions) (including, without limitation,  delivery of insurance certificates with respect thereto) shall not constitute a condition precedent to the extensions of credit under this Agreement on the Closing Date but shall instead be required to be delivered (or taken) after the Closing Date in accordance with the requirements of Section 6.9, but in no event later than 90 days after the Closing Date (as such period may be extended by the Administrative Agent in its reasonable discretion), except that (A) with respect to the perfection of security interests in UCC Filing Collateral, each Loan Party shall be obligated to deliver or cause to be delivered necessary Uniform Commercial Code financing statements to the Collateral Agent in proper form for filing and to irrevocably authorize and to cause the applicable Loan Parties to irrevocably authorize, the Collateral Agent to file necessary Uniform Commercial Code financing statements, (B) with respect to perfection

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of security interests in Stock Certificates representing Capital Stock, each such Loan Party shall be obligated to deliver to the Collateral Agent Stock Certificates together with undated stock powers in blank and (C) with respect to the perfection of security interests in Intellectual Property, each Loan Party shall be obligated to deliver a short form security agreement for filing with the United States Patent and Trademark Office and the United States Copyright Office (which need only include factual information with respect to such Intellectual Property to the extent such information is provided by the Sellers (as defined in the Merger Agreement) under the Merger Agreement) (this paragraph, the “Certain Funds Paragraph”).

5.2                               Conditions to Each Incremental Term Loan.  The agreement of each Incremental Lender to make any Incremental Term Loan is subject to the satisfaction of the following conditions precedent:

(a)                                 Representations and Warranties.  Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or in all respects where qualified by materiality or Material Adverse Effect) on and as of such date as if made on and as of such date (except to the extent made as of a specific date, in which case such representation and warranty shall be true and correct in all material respects (or in all respects where qualified by materiality or Material Adverse Effect) on and as of such specific date).

(b)                                 No Default.  No Default or Event of Default shall have occurred and be continuing on such date or after giving effect to the extensions of credit requested to be made on such date.

(c)                                  Notices.  The Borrower shall have delivered to the Administrative Agent, the notice of borrowing or application, as the case may be, for such extension of credit in accordance with this Agreement.

(d)                                 No Legal Bar.  The borrowing of Incremental Term Loans and the use of the proceeds thereof do not violate (a) the Organizational Documents of any Loan Party, (b) any Requirement of Law (including any Health Care Laws), Governmental Authorization or any Contractual Obligation of any Group Member and (c) will not result in, or require, the creation or imposition of any Lien on any Group Member’s respective properties or revenues pursuant to its Organizational Documents, any Requirement of Law or any such Contractual Obligation (other than the Liens created by the Security Documents and the Liens permitted under Sections 7.2(f) and (n)), except for any violation set forth in clause (b) or (c) which could not reasonably be expected to have a Material Adverse Effect

SECTION 6.                            AFFIRMATIVE COVENANTS

The Borrower hereby agrees that, so long as the Commitments remain in effect, or any Term Loan or other amount is owing to any Lender or Agent hereunder (other than unasserted contingent indemnification obligations), the Borrower shall and shall cause each of its Restricted Subsidiaries to:

6.1                               Financial Statements.  Furnish to the Administrative Agent for prompt

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further distribution to each Lender:

(a)                                 as soon as available, but in any event within ninety (90) days after the end of each fiscal year of the Borrower, (i) a copy of the audited consolidated balance sheet of the Borrower and its consolidated Subsidiaries as at the end of such year and the related audited consolidated statements of income or operations, stockholders’ equity and cash flows for such year, setting forth in each case in comparative form the figures for the previous year, reported on without a “going concern” or like qualification or exception, or qualification arising out of the scope of the audit, by PricewaterhouseCoopers LLP or other independent certified public accountants of nationally recognized standing and (ii) a narrative report and management’s discussion and analysis, in customary form, of the financial condition and results of operations of the Borrower for such fiscal year, as compared to amounts for the previous fiscal year;

(b)                                 as soon as available, but in any event on the date forty-five (45) days after the end of each of the first three quarterly periods of each fiscal year of the Borrower, (i) the unaudited consolidated balance sheet of the Borrower and its consolidated Subsidiaries as at the end of such quarter, the related unaudited consolidated statements of income or operations, for such quarter and cash flows for the portion of the fiscal year through the end of such quarter, setting forth in each case in comparative form the figures for the previous year, certified by a Responsible Officer of the Borrower as fairly presenting in all material respects the financial condition, results of operation, stockholders’ equity and cash flows of the Borrower in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) and (ii) a narrative report and management’s discussion and analysis, in customary form, of the financial condition and results of operations for such fiscal quarter and the then elapsed portion of the fiscal year, as compared to the comparable periods in the previous fiscal year; and

(c)                                  if the Borrower has been de-listed from the NASDAQ Stock Market, at such time as reasonably determined by the Administrative Agent, after the financial statements of the Borrower and its consolidated Subsidiaries are required to be delivered pursuant to Sections 6.1(a) and (b), the Borrower shall participate in a conference call to discuss results of operations of the Borrower and its consolidated Subsidiaries with the Lenders.

(d)                                 as soon as they are available after the Closing Date, pro forma consolidated and consolidating balance sheet and related statements of income and cash flows for the Borrower (the “Pro Forma Financial Statements”), as well as pro forma Consolidated EBITDA calculation, for the last fiscal year covered by the financial statements referenced by Section 4.1(i) and for the latest twelve-month period ended with the latest period covered by the unaudited financial statements required by Section 4.1(ii), promptly after the historical financial statements for such periods are available, in each case after giving effect to the Transactions.  The Pro Forma Financial Statements referenced in the immediately preceding sentence shall be prepared in good faith based on the assumptions set forth therein, which the Borrower believed to be reasonable assumptions at the time such Pro Forma Financial Statements were prepared, and shall present fairly in all material respects on a Pro Forma Basis the estimated financial

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position of the Borrower and its consolidated Subsidiaries as at and for each of the dates and periods set forth above, assuming that the events specified in the preceding sentence had actually occurred at such date or beginning of such period.

All such financial statements shall be in accordance with GAAP applied consistently throughout the periods reflected therein and other than as disclosed therein with prior periods.

Documents required to be delivered pursuant to Section 6.1(a) or (b) or Section 6.2(c) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet; or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent) (the “Platform”); provided that, (x) to the extent the Administrative Agent or any Lender so requests, the Borrower shall deliver paper copies of such documents to the Administrative Agent or such Lender until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (y) the Borrower shall notify the Administrative Agent (by facsimile or electronic mail) of the posting of any such documents.  The Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to herein, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.

6.2                               Certificates; Other Information; ERISA.  Furnish to the Administrative Agent and the Collateral Agent (as applicable) (or, in the case of clause (e), to the relevant Lender):

(a)                                 concurrently with the delivery of any financial statements pursuant to Section 6.1, (i) a certificate of a Responsible Officer of the Borrower stating that such Responsible Officer has obtained no knowledge of any Default or Event of Default except as specified in such certificate and setting forth information and calculations necessary for determining the First Lien Secured Leverage Ratio and the Total Leverage Ratio in effect as of the date of such certificate, and (ii) a Perfection Certificate Supplement, together with a certification that all Intellectual Property listed thereon as acquired or created during the period covered thereby is subject to valid, enforceable, perfected first priority Liens (subject to Liens permitted by Section 7.2) as required by Section 6.9 and the Security Documents;

(b)                                 as soon as available, and in any event no later than ninety (90) days after the end of each fiscal year of the Borrower, projections for the following fiscal year shown on a quarterly basis (including consolidated statements of projected cash flow and projected income and a description of the underlying assumptions applicable thereto) (collectively, the “Projections”), which Projections shall in each case be accompanied by a certificate of a Responsible Officer of the Borrower stating that such Projections are based on estimates, information and assumption believed by such Responsible Officer to be reasonable at the time prepared, it being understood that actual results may vary from

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such projections and that such variations may be material;

(c)                                  promptly after the same are sent, copies of all financial statements, reports and material notices that the Borrower sends to the holders of any class of its Indebtedness or public equity securities and, promptly after the same are filed, copies of all annual, regular or periodic and special reports and registration statements which the Loan Parties may file or be required to file with the SEC and not otherwise required to be delivered to the Administrative Agent pursuant hereto, and, promptly, and in any event within ten (10) Business Days, after receipt thereof by the Borrower or any Subsidiary thereof, copies of each written notice or other correspondence received from the SEC or comparable agency in any applicable foreign jurisdiction concerning any investigation or potential investigation or other inquiry by such agency regarding the financial or other operational results of the Borrower or any Subsidiary thereof;

(d)                                 promptly, after any request by the Administrative Agent, any final “management” letter submitted by such accountants to the board of directors of the Borrower in connection with their annual audit;

(e)                                  promptly, such additional financial and other information regarding the business, financial or corporate affairs of the Borrower or any of its Restricted Subsidiaries as the Administrative Agent (for itself or on behalf of any Lender) may from time to time reasonably request, including, without limitation, other information with respect to the Patriot Act; provided, that (other than with respect to the Patriot Act or where waiver of such privilege will not be adverse to the Borrower in the good faith opinion of the Borrower’s counsel) if the disclosure of any requested information would compromise any attorney-client privilege, that has not been or will not be waived, the Borrower shall make available redacted versions of requested documents or portions of documents that are the subject of such attorney-client privilege or, if unable to do so consistent with the preservation of such attorney-client privilege, shall endeavor in good faith otherwise to disclose information responsive to the Administrative Agent’s requests in a manner that will protect such attorney-client privilege;

(f)                                   (i) promptly, and in any event within ten (10) Business Days after any Group Member or any ERISA Affiliate knows or has reason to know that any ERISA Event has occurred, a statement of the Chief Financial Officer of the Group Member describing such ERISA Event and the action, if any, that such Group Member or such ERISA Affiliate has taken and proposes to take with respect thereto and (ii) promptly, and in any event within ten (10) Business Days after the date any records, documents or other information must be furnished to the PBGC with respect to any Plan pursuant to Section 4010 of ERISA, a copy of such records, documents and information;

(g)                                  promptly, and in any event within ten (10) Business Days after receipt thereof by any Group Member or any ERISA Affiliate, copies of each notice from the PBGC stating its intention to terminate any Plan or to have a trustee appointed to administer any Plan;

(h)                                 promptly, and in any event within thirty (30) days after the filing thereof

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with the United States Department of Labor, copies of each Schedule SB (Actuarial Information) to the annual report (Form 5500 Series) with respect to each Plan; and

(i)                                     promptly, and in any event within ten (10) Business Days after receipt thereof by any Group Member or any ERISA Affiliate from the sponsor of a Multiemployer Plan, copies of each notice concerning (i) the imposition of Withdrawal Liability by any such Multiemployer Plan, or (ii) such Multiemployer Plan is in Reorganization, Insolvent or a determination has been made that the Multiemployer Plan is in “endangered” or “critical” status within the meaning of Section 432 of the Code or Section 305 of ERISA and (iii) the amount of liability incurred, or that may be incurred, by such Group Member or any ERISA Affiliate in connection with any event described in clause (i) or (ii).

6.3                               Taxes.  (a) Completely and correctly file or cause to be filed all federal, state and other material tax returns that are required to be filed by any Group Member; and (b) pay all federal, state and other taxes, assessments, fees or other charges imposed on it or any of its property by any Governmental Authority before they become delinquent, except (i) where the amount or validity thereof is currently being contested in good faith by appropriate proceedings and reserves in conformity with GAAP with respect thereto have been provided on the books of the relevant Group Member or (ii) where the failure to do so could not reasonably be expected to have a Material Adverse Effect.

6.4                               Maintenance of Existence; Compliance.

(a)                                 (i) Preserve, renew and keep in full force and effect its organizational existence except as permitted hereunder and (ii) take all reasonable action to maintain all rights, privileges, franchises and permits necessary or desirable in the normal conduct of its business, including, without limitation, all necessary Governmental Authorizations, except, in each case, as otherwise permitted by Section 7.3 and except, in the case of clause (ii) above, to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; and

(b)                                 comply with all Contractual Obligations, Organizational Documents and Requirements of Law (including, without limitation, and as applicable, Health Care Laws, ERISA, OFAC, FCPA and the Code) except to the extent that failure to comply therewith could not, in the aggregate, reasonably be expected to have a Material Adverse Effect.

6.5                               Maintenance of Property; Insurance.  (a) Except as permitted by Section 7.4, keep all material Property useful and necessary in its business in good working order and condition, ordinary wear and tear and obsolescence excepted, except if failure to do so could not reasonably be expected to have a Material Adverse Effect, (b) maintain, with financially sound and reputable insurance companies, insurance in such amounts and against such risks as are customarily maintained by similarly situated companies engaged in the same or similar business operating in the same or similar locations.  Within a reasonable time after the Closing Date, the umbrella liability insurance and property insurance of the Group Members shall (i) name the Administrative Agent, on behalf of Secured Parties as an additional insured thereunder as its interests may appear and (ii) in the case of each casualty insurance policy, contain a loss payable clause or endorsement, reasonably satisfactory in form and substance to

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the Administrative Agent, that names Collateral Agent, on behalf of Lenders as the loss payee thereunder and provides for at least thirty days prior written notice to Collateral Agent of any cancellation of such policy and (c) if any portion of any Mortgaged Property is at any time located in an area identified by the Federal Emergency Management Agency (or any successor agency) as a Special Flood Hazard Area with respect to which flood insurance has been made available under the National Flood Insurance Act of 1968 (as now or hereafter in effect or successor act thereto), then the Borrower shall, or shall cause each Loan Party to (i) maintain, or cause to be maintained, with a financially sound and reputable insurer, flood insurance in an amount and otherwise sufficient to comply with all applicable rules and regulations promulgated pursuant to the Flood Insurance Laws and (ii) deliver to the Administrative Agent evidence of such compliance in form and substance reasonably acceptable to the Administrative Agent.

6.6                               Inspection of Property; Books and Records; Discussions.  (a)  Keep proper books of records and account in which full, true and correct in all material respects entries in conformity with GAAP and all Requirements of Law shall be made of all material dealings and transactions in relation to its business and activities and (b) subject to the Borrower’s and each Restricted Subsidiary’s internal policies for the protection and preservation of Intellectual Property or other non-financial proprietary information, permit representatives of the Administrative Agent who may be accompanied by any Lender to visit and inspect any of its properties and examine and make abstracts from any of its books and records at any reasonable time during normal business hours and upon reasonable advance notice to the Borrower and to discuss the business, operations, properties and financial and other condition of the Group Members with the officers of the Group Members and with their independent certified public accountants (provided that the Borrower or its Subsidiaries may, at their option, have one or more employees or representatives present at any discussion with such accountants); provided that unless an Event of Default has occurred or is continuing, only one (1) such visit in any calendar year shall be conducted at the Borrower’s expense and provided, further, that if the disclosure of any requested information would compromise any attorney-client privilege (other than where waiver of such privilege will not be adverse to the Borrower in the good faith opinion of the Borrower’s counsel), that has not been or will not be waived or waiver thereof will be materially adverse to the Borrower, the Borrower shall make available redacted versions of requested documents or portions of documents that are the subject of such attorney-client privilege or, if unable to do so consistent with the preservation of such attorney-client privilege, shall endeavor in good faith otherwise to disclose information responsive to the Administrative Agent’s requests in a manner that will protect such attorney-client privilege.

6.7                               Notices.  Give notice to the Administrative Agent promptly after any Loan Party obtains knowledge of:

(a)                                 the occurrence of any Default or Event of Default;

(b)                                 any litigation, investigation or proceeding that may exist at any time between any Group Member and any Governmental Authority, which (if adversely determined) could reasonably be expected to have a Material Adverse Effect;

(c)                                  any litigation or proceeding affecting any Group Member (i) which (if adversely determined) could reasonably be expected to have a Material Adverse Effect or

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(ii) which relates to any Loan Document;

(d)                                 the following events, as soon as possible and in any event within thirty (30) days after a Responsible Officer of the Borrower obtains actual knowledge thereof:  (i) the occurrence of any Reportable Event with respect to any Single Employer Plan, a failure to make any required contribution to any Single Employer Plan or Multiemployer Plan, the creation of any Lien against the Borrower or any Commonly Controlled Entity in favor of the PBGC or a Single Employer Plan or Multiemployer Plan or any withdrawal from, or the termination, Reorganization or Insolvency of, any Multiemployer Plan or (ii) the institution of proceedings or the taking of any other action by the PBGC or the Borrower or any Commonly Controlled Entity or any Multiemployer Plan with respect to the withdrawal from, or the termination, Reorganization or Insolvency of, any Single Employer Plan or Multiemployer Plan; and

(e)                                  any other development or event that has had or could reasonably be expected to have a Material Adverse Effect.

Each notice pursuant to this Section 6.7 shall be accompanied by a statement of a Responsible Officer setting forth details of the occurrence referred to therein and stating what action the Borrower or the relevant Subsidiary proposes to take with respect thereto.

6.8                               Environmental Laws.

(a)                                 Comply with, and use commercially reasonable efforts to ensure compliance in all material respects by all tenants, subtenants, and other persons using or occupying the Properties, if any, with, all applicable Environmental Laws, and obtain and comply with and maintain, and use commercially reasonable efforts to ensure that all tenants and subtenants obtain and comply in all material respects with and maintain, any and all licenses, approvals, notifications, registrations or permits required by applicable Environmental Laws, except, in each case, to the extent the failure to do so could not reasonably be expected to result in a Material Adverse Effect.

(b)                                 Conduct and complete all investigations, studies, sampling and testing, and all remedial, removal and other actions required under Environmental Laws, and promptly comply with all lawful orders and directives of all Governmental Authorities regarding Environmental Laws, except to the extent the failure to do so could not reasonably be expected to result in a Material Adverse Effect.

6.9                               Post-Closing; Additional Collateral, etc.

(a)                                 With respect to any property acquired after the Closing Date by any Loan Party as to which the Collateral Agent, for the benefit of the Secured Parties, does not have a perfected Lien (other than (x) any property described in paragraph (b), (c), (d) or (f) below, (y) property that is not required to become subject to Liens in favor of the Collateral Agent pursuant to the Loan Documents and (z) solely with respect to the following clauses (ii) and (iii), any non U.S. property of a Domestic Subsidiary (for the avoidance of doubt, a Domestic Subsidiary shall be required to grant a security interest in all Collateral wherever located)), (i) execute and deliver to the Collateral Agent such amendments to the applicable Security Document or such other

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documents as the Collateral Agent deems necessary or advisable to grant to the Collateral Agent, for the benefit of the Secured Parties, a security interest in such property, (ii) take all actions necessary or advisable to grant to the Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest in such property, including, the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the applicable Security Document or by law and, in the case of Intellectual Property subject to a United States federal registration or federal application, as promptly as practicable, the delivery for filing of an Intellectual Property Security Agreement suitable for recordation in the United States Patent and Trademark Office, the United States Copyright Office, or such other instrument in form and substance reasonably acceptable to the Administrative Agent, or as may be reasonably requested by the Collateral Agent and (iii) if reasonably requested by the Collateral Agent, deliver to the Collateral Agent legal opinions relating to the matters described above, which opinions shall be customary in form and substance reasonably satisfactory to the Collateral Agent.

(b)                                 With respect to any fee interest in any real property having a value (together with improvements thereof) of at least $5,000,000 owned or acquired on or after the Closing Date by any Loan Party (other than any such real property subject to a Lien expressly permitted by Section 7.2(g)), promptly (but in any event within 60 days, or as such later date the Administrative Agent may agree) (i) execute and deliver a first priority Mortgage subject to Liens permitted under clause (i) of Section 7.2 hereof, in favor of the Collateral Agent, for the benefit of the Secured Parties, covering such real property, (ii) provide the Secured Parties with (x) (in the case of real property located outside the U.S. only if customary in the relevant non-U.S. jurisdiction) a policy of title insurance (or marked up title insurance commitment having the effect of a policy of title insurance) covering such real property in an amount at least equal to the purchase price of such real property (or such other amount as shall be reasonably acceptable to the Collateral Agent, provided that in jurisdictions that impose mortgage recording taxes, the Security Documents shall not secure indebtedness in an amount exceeding 105% of the fair market value of the Mortgaged Property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to Collateral Agent), as well as a Survey thereof (except that a new Survey will not be required except to the extent necessary to delete the so called “survey exceptions” in any such policy of title insurance) and (y) any consents or estoppels deemed necessary or reasonably advisable by the Collateral Agent in connection with such Mortgage, each of the foregoing in form and substance reasonably satisfactory to the Administrative Agent, (iii) deliver to the Collateral Agent legal opinions relating to, among other things, the enforceability, perfection, due authorization, execution and delivery of the applicable Mortgage, which opinions shall be in customary form and substance reasonably satisfactory to the Collateral Agent and (iv) for real property located in the United States deliver to the Administrative Agent a “Life-of-Loan” Federal Emergency Standard Flood Hazard Determination (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrower and each Loan Party relating thereto), and if such Mortgaged Property is located in a special flood hazard area, evidence of flood insurance confirming that such insurance has been obtained, which certificate shall be in a form and substance reasonably satisfactory to the Administrative Agent, and any and all other documents as the Collateral Agent may reasonably request, in each case, in form and substance reasonably satisfactory to the Collateral Agent.

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(c)                                  With respect to any new Restricted Subsidiary created or acquired after the Closing Date by any Loan Party (including any such Subsidiary that ceases to an Unrestricted Subsidiary), within sixty (60) days after such acquisition or formation, in the case of any Domestic Subsidiary (or such later date as the Administrative Agent may agree) (i) execute and deliver to the Collateral Agent, such Security Documents as the Administrative Agent deems necessary or reasonably advisable to grant to the Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such new Restricted Subsidiary that is owned by any Loan Party, (ii) deliver to the Collateral Agent the certificates, if any, representing such Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Group Member, (iii) cause such new Subsidiary that is a Wholly Owned Subsidiary or is acquired in a Permitted Acquisition (A) to become a party to the applicable Security Documents, (B) to take such actions necessary or advisable to grant to the Collateral Agent for the benefit of the Secured Parties a perfected first priority security interest (subject to Liens permitted by Section 7.2 hereof) in all or substantially all, or any portion of the property of such new Subsidiary that is required to become subject to a Lien in favor of the Collateral Agent, for the benefit of the Secured Parties, pursuant to the Loan Documents as the Administrative Agent shall determine, in its reasonable discretion, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Collateral Agent and (C) to deliver to the Collateral Agent a customary secretary’s certificate of such Subsidiary substantially in the same form delivered on the Closing Date and reasonably satisfactory to the Administrative Agent with appropriate attachments, and (iv) if reasonably requested by the Collateral Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in customary form and substance reasonably satisfactory to the Collateral Agent; provided however, that in no event shall any such Subsidiary that is a CFC be required to pledge any property.

(d)                                 With respect to any new Foreign Subsidiary that is a Wholly Owned Subsidiary (other than an Unrestricted Subsidiary) created or acquired after the Closing Date (including any such Subsidiary that ceases to be an Unrestricted Subsidiary, by any Loan Party, within ninety (90) days of such formation or acquisition (or such later date as the Administrative Agent may agree), (A) execute and deliver to the Collateral Agent such Security Documents as the Collateral Agent deems necessary or reasonably advisable to grant to the Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such new Subsidiary that is owned by any such Loan Party (provided that in no event shall more than 66% of the total common stock of any such new Subsidiary that is a CFC be required to be so pledged; and, provided further, that no Foreign Subsidiary shall be required to pledge any Capital Stock that it owns, (B) deliver to the Collateral Agent the certificates representing such Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, as the case may be, and take such other action as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the Collateral Agent’s security interest therein, and (C) if reasonably requested by the Collateral Agent, deliver to the Collateral Agent legal opinions relating to the matters described above, which opinions shall be in customary form and substance reasonably satisfactory to the Collateral Agent.

(e)                                  Within thirty (30) days after the Closing Date (or such later date as the

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Administrative Agent may agree), the Administrative Agent shall have received executed Intellectual Property Security Agreements.

(f)                                   Notwithstanding anything to the contrary in this Section 6.9, none of the following entities shall be required to become Subsidiary Guarantors: (x) any Unrestricted Subsidiary; (y) any subsidiary that is prohibited by law or regulation from becoming a Subsidiary Guarantor or (z) any CFC, in each case, so long as such status is applicable to such entity.

6.10                        Further Assurances.  From time to time execute and deliver, or cause to be executed and delivered, such additional instruments, certificates or documents, and take all such actions, as the Administrative Agent or the Collateral Agent may reasonably request for the purposes of implementing or effectuating the provisions of this Agreement and the other Loan Documents, or of more fully perfecting or renewing the rights of the Administrative Agent, the Collateral Agent and the Secured Parties with respect to the Collateral (or with respect to any additions thereto or replacements or proceeds thereof or with respect to any other property or assets hereafter acquired by any Loan Party which may be deemed to be part of the Collateral) pursuant hereto or thereto.  Upon the reasonable exercise by the Administrative Agent, the Collateral Agent or any Secured Party of any power, right, privilege or remedy pursuant to this Agreement or the other Loan Documents which requires any consent, approval, recording qualification or authorization of any Governmental Authority, the Borrower will execute and deliver, or will cause the execution and delivery of, all applications, certifications, instruments and other documents and papers that the Administrative Agent, the Collateral Agent or such Secured Party reasonably may be required to obtain from any Loan Party for such governmental consent, approval, recording, qualification or authorization.

6.11                        Rated Credit Facility; Corporate Ratings.  Use commercially reasonable efforts to (a) cause the Term Loans to be continuously rated by S&P and ▇▇▇▇▇’▇ and (b) cause the Borrower to continuously receive a Corporate Family Rating and Corporate Rating.

6.12                        Use of Proceeds.  The Borrower shall use the proceeds of the Term Loans, solely as set forth in Section 4.15.

6.13                        Intellectual Property.  Each Loan Party shall (and the Borrower shall procure that each Group Member will):  (a) take commercially reasonable efforts to preserve and maintain the subsistence and validity of the Intellectual Property necessary and material to the business of the relevant Group Member; (b) take commercially reasonable steps to prevent and defend against any infringement of such Intellectual Property, including, without limitation, settling such litigation when in such Group Member’s good faith belief it is commercially reasonable to do so except where the failure to do so could not reasonably be expected to have a Material Adverse Effect; and (c) make registrations and pay all registration fees and taxes necessary, as applicable, to maintain such Intellectual Property in full force and effect and record its interest in such Intellectual Property except as could not reasonably be expected to have a Material Adverse Effect.

6.14                        Designation of Subsidiaries; Unrestricted Subsidiaries.  (a) The board of directors of the Borrower may at any time designate any Restricted Subsidiary as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary; provided that

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(i) immediately before and after such designation, no Default shall have occurred and be continuing, (ii) immediately before and after such designation, the Loan Parties are in compliance with Section 6.14(b) and the Total Leverage Ratio (as of the date of the most recent financial statements delivered pursuant to Section 6.1(a) or (b), after giving pro forma effect to such designation) is no greater than the Total Leverage Ratio as in effect on the Closing Date (as calculated, on a Pro Forma Basis for the Transactions, as of the date of the then most recent financial statements of the then last ended fiscal quarter), (iii) no Subsidiary may be designated as an Unrestricted Subsidiary if, after such designation, it would be a “Restricted Subsidiary” for the purpose of the Convertible Notes pursuant to the Convertible Notes Documents or any Junior Financing or any other Indebtedness of any Loan Party and (iv) no Permitted Joint Venture may be designated as a Restricted Subsidiary if previously designated as an Unrestricted Subsidiary.  The designation of any Subsidiary as an Unrestricted Subsidiary shall constitute an Investment by the Borrower therein at the date of designation in an amount equal to the fair market value of the assets of such Subsidiary (less the amount of the Indebtedness of such Subsidiary on the date of such designation) that is allocated to the ownership interest of the relevant Group Member in such Subsidiary.  The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the incurrence, at the time of designation, of Indebtedness or Liens in such Subsidiary (equal to the amounts then owed by such Subsidiary) and a return on any Investment by the Borrower in Unrestricted Subsidiaries pursuant to the preceding sentence in an amount equal to the fair market value of the assets of such Subsidiary (less the amount of the Indebtedness of such Subsidiary on the date of such re-designation) that is allocated to the ownership interest of the relevant Group Member in such Subsidiary.

(b)                                 The portion of (x) Total Consolidated EBITDA for the period of four consecutive fiscal quarters last ended as of the date of the most recent financial statements delivered pursuant to Section 6.1(a) or (b) that is attributable to all Unrestricted Subsidiaries (on a consolidated basis) shall not at any time exceed 10.0% and (y) the total assets of the Borrower and all of its Subsidiaries calculated in accordance with GAAP on a consolidated basis as of the date of the most recent financial statements delivered pursuant to Section 6.1(a) or (b) that is attributable to all Unrestricted Subsidiaries (on a consolidated basis) shall not at any time exceed 10.0%.

6.15                        Post-Closing Deliveries.  The Borrower hereby agrees to deliver to the Administrative Agent, in form and substance reasonably satisfactory to the Administrative Agent, the items described on Schedule 6.15 hereof on or before the dates specified with respect to such items, or such later dates as may be agreed to by the Administrative Agent in its sole discretion.  All representations and warranties contained in this Agreement and the other Loan Documents shall be deemed modified to the extent necessary to effect the foregoing (and to permit the taking of the actions described above within the time periods required above and in Schedule 6.15, rather than as elsewhere provided in the Loan Documents); provided that (x) to the extent any representation and warranty would not be true because the foregoing actions were not taken on the Closing Date, the respective representation and warranty shall be required to be true and correct in all material respects at the time the respective action is taken (or was required to be taken) in accordance with the foregoing provisions of this Section 6.15 (and Schedule 6.15) and (y) all representations and warranties relating to the Security Documents shall be required to be true in all material respects immediately after the actions required to be taken under this Section 6.15 (and Schedule 6.15) have been taken (or were required to be taken), except to the

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extent any such representations and warranties expressly relate to an earlier date in which case such representations and warranties shall be true and correct in all material respects as of such earlier date.

6.16                        Post-Closing Pay-Off.  To the extent the Indebtedness outstanding pursuant to the Fifth Street Credit Agreement is not repaid in full on the Closing Date in accordance with Section 5.1(b)(iii), (i) such repayment in full of all such Indebtedness (together with the release of all Liens, if any, securing such Indebtedness) shall occur no later than 12:00 Noon, New York City time, on April 29, 2013, and (ii) the Administrative Agent shall receive written confirmation of the repayment in full of all such Indebtedness, together with any other payoff documentation reasonably requested by the Administrative Agent, from the lenders (and any agent therefor) under the Fifth Street Credit Agreement no later than 12:00 Noon, New York City time, on April 29, 2013.

SECTION 7.                            NEGATIVE COVENANTS

The Borrower hereby agrees that, so long as the Commitments remain in effect or any Term Loan or other amount is owing to any Lender or Agent hereunder (other than unasserted contingent indemnification obligations), the Borrower shall not, and shall not permit any of its Restricted Subsidiaries to:

7.1                               Indebtedness.  Create, issue, incur, assume, become liable in respect of or suffer to exist any Indebtedness, except:

(a)                                 Indebtedness of any Loan Party pursuant to any Loan Document;

(b)                                 (i) Indebtedness of any Loan Party owed to any other Loan Party; (ii) unsecured Indebtedness of any Loan Party owed to any Group Member that is not a Loan Party; (iii) Indebtedness of any Group Member that is not a Loan Party owed to any other Group Member that is not a Loan Party; and (iv) subject to Section 7.6(g), Indebtedness of any Group Member that is not a Loan Party owed to a Loan Party; provided, that (x) in the case of clause (iv), such Indebtedness is evidenced by, and subject to the provisions of, an Intercompany Note and (y) in the case of any such Indebtedness of a Loan Party owed to a Group Member that is not a Loan Party, such Indebtedness shall be subordinated in right of payment to the Obligations on terms reasonably satisfactory to the Administrative Agent;

(c)                                  Guarantee Obligations incurred by (i) any Group Member that is a Loan Party of obligations of any other Loan Party and, subject to Section 7.6(g), of any Group Member that is not a Loan Party and (ii) any Group Member that is not a Loan Party of obligations of any Loan Party or any other Group Member;

(d)                                 Indebtedness outstanding on the date hereof and listed on Schedule 7.1 and any Permitted Refinancing thereof; provided that, notwithstanding the foregoing, to the extent the Indebtedness outstanding pursuant to the Fifth Street Credit Agreement is included on Schedule 7.1, such Indebtedness shall only be permitted pursuant to this clause (d) until the earlier of (x) 12:00 Noon, New York City time, on April 29, 2013 and (y) the date on which the repayment in full of the Indebtedness pursuant to the Fifth

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Street Credit Agreement, together with the release of all Liens (if any) with respect thereto, occurs;

(e)                                  Indebtedness incurred to finance the acquisition, construction, improvement or repair of fixed or capital assets (including, without limitation, Capital Lease Obligations) of the Borrower or any Subsidiary secured by Liens permitted by Section 7.2(g) in an aggregate principal amount not to exceed $30,000,000 at any one time outstanding and any Permitted Refinancing thereof; provided that such Indebtedness is incurred prior to or within 270 days after such acquisition or the completion of such construction or improvement;

(f)                                   Indebtedness in respect of Hedge Agreements designed to hedge against interest rates, foreign exchange rates or commodities pricing risks and not for speculative purposes and Guarantee Obligations thereof;

(g)                                  Indebtedness of the Borrower or any Subsidiary in respect of performance, bid, surety, indemnity, appeal bonds, completion guarantees and other obligations of like nature and guarantees and/or obligations as an account party in respect of the face amount of letters of credit in respect thereof, in each case securing obligations not constituting Indebtedness for borrowed money (including worker’s compensation claims, environmental remediation and other environmental matters and obligations in connection with insurance or similar requirements) provided in the ordinary course of business;

(h)                                 Indebtedness arising from the endorsement of instruments in the ordinary course of business;

(i)                                     Indebtedness of a Person existing at the time such Person became a Restricted Subsidiary (such Person, an “Acquired Person”), together with all Indebtedness incurred or assumed by the Borrower or any of the Restricted Subsidiaries in connection with any acquisition permitted under Section 7.6, but only to the extent that (i) such Indebtedness was not created or incurred in contemplation of such Person becoming a Subsidiary of such Loan Party or such acquisition (except that the Borrower and any of the Restricted Subsidiaries may incur Junior Indebtedness, to the extent incurrence thereof is permitted under clause (j) below, in connection with such Person becoming a Restricted Subsidiary), (ii) any Liens securing such Indebtedness, incurred in connection with such Person becoming a Restricted Subsidiary, attach only to the assets of the Acquired Person (and in case of any Junior Indebtedness shall be subject to a subordination agreement), (iii) no Default or Event of Default shall have occurred and be continuing or would result therefrom and (iv) the Total Leverage Ratio (as of the date of the most recent financial statements delivered pursuant to Section 6.1(a) or (b), after giving pro forma effect to the acquisition and the incurrence of any Indebtedness in connection therewith) is no greater than the Total Leverage Ratio as in effect on the Closing Date (as calculated, on a Pro Forma Basis for the Transactions, as of the date of the then most recent financial statements of the then last ended fiscal quarter); provided, that to the extent any such Acquired Person does not become a Loan Party (within 60 days of such person becoming an Acquired Person), the aggregate amount of such

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Indebtedness for all such Acquired Persons shall not exceed $12,500,000;

(j)                                    Junior Indebtedness of any Loan Party; provided that, (i) after giving pro forma effect to the incurrence of such Indebtedness, the Total Leverage Ratio (as of the date of the most recent financial statements delivered pursuant to Section 6.1(a) or (b) is no greater than the Total Leverage Ratio as in effect on the Closing Date (as calculated, on a Pro Forma Basis for the Transactions, as of the date of the then most recent financial statements of the then last ended fiscal quarter) and (ii) no Default or Event of Default shall have occurred and be continuing or would result therefrom;

(k)                                 Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within ten (10) Business Days of incurrence;

(l)                                     Indebtedness of the Borrower or any Subsidiary that may be deemed to exist in connection with agreements providing for indemnification, purchase price adjustments, Earn-Out Obligations and similar obligations in connection with Permitted Acquisitions or other acquisitions or sales of assets and/or businesses;

(m)                             Indebtedness arising from judgments or decrees not constituting an Event of Default under Section 8(h);

(n)                                 Guarantee Obligations incurred by any Loan Party in respect of Indebtedness otherwise permitted by this Section 7.1;

(o)                                 other Indebtedness of the Group Members in an aggregate principal amount (for all Group Members) not in excess of $25,000,000 at any time outstanding;

(p)                                 Indebtedness consisting of promissory notes issued to current or former officers, directors, managers, consultants and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Capital Stock of any Group Member permitted by Section 7.5;

(q)                                 Indebtedness consisting of obligations of the Borrower or any Subsidiary under deferred compensation or other similar arrangements incurred by such Person in connection with any Permitted Acquisitions or any other Investment permitted hereunder;

(r)                                    Indebtedness consisting of (a) the financing of insurance premiums in respect of unearned premiums payable on insurance policies maintained by the Group Members or (b) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;

(s)                                   unsecured Guarantee Obligations incurred in the ordinary course of business (and consistent with past practice) in respect of obligations to suppliers, customers, franchisees, lessors and licensees;

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(t)                                    unsecured Indebtedness incurred in the ordinary course of business (and consistent with past practice) in respect of obligations of the Borrower or any Restricted Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services;

(u)                                 Indebtedness of the Loan Parties under the Convertible Notes (or any Permitted Refinancing thereof) pursuant to the Convertible Notes Documents in an aggregate principal amount not to exceed $350,000,000 at any one time outstanding; provided, that, such aggregate dollar cap shall not apply to any Permitted Convertible Notes Refinancing as long as such Permitted Convertible Notes Refinancing complies with the requirements set forth in the definition thereof;

(v)                                 Indebtedness in connection with any acquisition permitted under Section 7.6;

(w)                               Indebtedness of Foreign Subsidiaries in an aggregate principal amount not to exceed at any time outstanding $25,000,000;

(x)                                 Non-Recourse Indebtedness for Permitted Joint Ventures in an aggregate principal amount not to exceed at any time outstanding $20,000,000; and

(y)                                 Attributable Indebtedness in connection with a Sale and Leaseback Transaction permitted pursuant to Section 7.4(x).

7.2                               Liens.  Create, incur, assume or suffer to exist any Lien upon any of its property, whether now owned or hereafter acquired, except for:

(a)                                 Liens for taxes, assessments, charges or other governmental levies not yet delinquent for a period of more than thirty (30) days or that are being contested in good faith by appropriate proceedings; provided that adequate reserves with respect thereto are maintained on the books of the Group Members, as the case may be, in conformity with GAAP;

(b)                                 Liens imposed by law, including, carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business that are not overdue for a period of more than sixty (60) days (or, if more than sixty (60) days overdue, no action has been taken to enforce such Lien) or are being contested in good faith and by appropriate proceedings for which appropriate reserves have been established in accordance with GAAP;

(c)                                  (i) pledges or deposits in connection with workers’ compensation, unemployment insurance and other social security legislation, or letters of credit or guarantees issued in respect thereof, other than any Lien imposed by ERISA with respect to a Single Employer Plan or Multiemployer Plan and (ii) pledges and deposits in the ordinary course of business securing liability for reimbursement or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees for the benefit of) insurance carriers providing property, casualty or liability insurance to the Borrower or any Restricted Subsidiary;

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(d)                                 pledges or deposits to secure the performance of bids, government contracts and trade contracts (other than for borrowed money), leases, statutory obligations, surety, stay, customs and appeal bonds, performance bonds and other obligations of a like nature (including those to secure health, safety and environmental obligations) incurred in the ordinary course of business or letters of credit or guarantees issued in respect thereof;

(e)                                  easements, rights-of-way, restrictions (including zoning restrictions), encroachments, protrusions and other similar encumbrances and minor title defects or other irregularities that were not incurred in the ordinary course of business and do not secure debt, affecting real property that, in the aggregate, do not materially and adversely affect the use of the property thereby for the intended purposes, taken as a whole, and any exception on the title policies issued in connection with the Mortgaged Property;

(f)                                   Liens in existence on the date hereof listed on Schedule 7.2 and any renewals or extensions of any of the foregoing; provided, that no such Lien is spread to cover any additional property after the Closing Date except as otherwise permitted hereunder;

(g)                                  Liens securing permitted Indebtedness of the Borrower or any Restricted Subsidiary incurred to finance the acquisition, construction, improvement or repair of fixed or capital assets and any Permitted Refinancings thereof; provided that (i) such Liens shall be created substantially simultaneously (or within two hundred seventy (270) days of) with the acquisition, construction, improvement or repair of such fixed or capital assets, (ii) such Liens do not at any time encumber any property other than the property financed by such Indebtedness and additions, accessions and the proceeds of sale thereof and (iii) the amount of Indebtedness secured thereby is not increased;

(h)                                 Liens created pursuant to the Security Documents or any other Loan Document;

(i)                                     Liens that are exceptions to the commitments for policies of title insurance being issued in connection with the Mortgages reasonably acceptable to the Collateral Agent in its sole discretion;

(j)                                    any interest or title of a lessor or licensee under any lease, sublease or license entered into by the Borrower or any Restricted Subsidiary in the ordinary course of its business and covering only the assets so leased, subleased or licensed;

(k)                                 Liens securing judgments not constituting an Event of Default under Section 8(h) or securing appeal or other surety bonds related to such judgments;

(l)                                     the filing of UCC financing statements solely as a precautionary measure in connection with operating leases and consignment arrangements;

(m)                             Liens existing on property acquired by the Borrower or any Subsidiary at the time such property is so acquired or existing on the property of any Person at the time such Person becomes a Restricted Subsidiary after the date hereof (whether or not the

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Indebtedness secured thereby shall have been assumed); provided that (i) such Lien is not created in contemplation of such acquisition or such Person becoming a Restricted Subsidiary; (ii) such Lien does not extend to any other property (other than proceeds or products or after-acquired property) of any Group Member following such acquisition or such Person becoming a Restricted Subsidiary; and (iii) the Indebtedness secured by such Liens is permitted under Section 7.1(f), (g) and (i);

(n)                                 Liens (i) of a collecting bank arising under Section 4-210 of the Uniform Commercial Code on the items in the course of collection and (ii) in favor of a banking or other financial institution arising as a matter of law or contract encumbering deposits or other funds or assets maintained with a financial institution (including the right of set off) and that are within the general parameters customary in the banking industry, including, without limitation, customary liens for customary fees and expenses relating to the operation and maintenance of such deposits;

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

(p)                                 statutory and common law landlords’ liens under leases to which the Borrower or any of the Restricted Subsidiaries is a party;

(q)                                 Liens not otherwise permitted by this Section 7.2 so long as the aggregate outstanding principal amount of the obligations secured thereby do not exceed $15,000,000 at any one time;

(r)                                    Liens on cash advances in favor of the seller of any property to be acquired in an Investment permitted pursuant to Section 7.6(i) or Section 7.6(t) to be applied against the purchase price for such Investment;

(s)                                   Liens arising out of conditional sale, title retention, consignment or similar arrangements for sale of goods entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business of the Borrower;

(t)                                    Liens deemed to exist in connection with Investments in repurchase agreements under Section 7.6 and reasonable customary initial deposits and margin deposits and similar Liens attaching to commodity trading accounts or other brokerage accounts maintained in the ordinary course of business and not for speculative purposes;

(u)                                 Liens that are contractual rights of set-off (i) relating to the establishment of depository relations with banks or other financial institutions not given in connection with the issuance of Indebtedness, (ii) relating to pooled deposit or sweep accounts of the Borrower or any Restricted Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Borrower or any Restricted Subsidiary or (iii) relating to purchase orders and other agreements entered into with customers of the Borrower or any Restricted Subsidiary in the ordinary course of business;

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(v)                                 Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by the Borrower or any Subsidiary in connection with any letter of intent or purchase agreement permitted hereunder;

(w)                               (i) Liens on the Capital Stock of any Subsidiary acquired pursuant to a Permitted Acquisition to secure Indebtedness incurred or assumed pursuant to Section 7.1(i) in connection with such Permitted Acquisition and (ii) Liens on the assets of such Subsidiary to secure Indebtedness (or to secure a Guarantee Obligation of such Indebtedness) incurred or assumed pursuant to Section 7.1(i) in connection with such Permitted Acquisition;

(x)                                 Liens in respect of unearned premiums on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto;

(y)                                 Liens on specific items of inventory or other goods and the proceeds thereof securing such Person’s obligations in respect of documentary letters of credit or banker’s acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or goods;

(z)                                  Liens constituting Dispositions permitted by Section 7.4;

(aa)                          Liens securing Indebtedness permitted by Section 7.1 (w);

(bb)                          Liens securing Non-Recourse Indebtedness permitted under Section 7.1 (x), provided that such Liens shall extend only to the assets of (and Capital Stock or other ownership interests in) the applicable Permitted Joint Venture that is the borrower of such Non-Recourse Indebtedness;

(cc)                            ground leases in respect of real property on which facilities owned or leased by the Borrower or any Restricted Subsidiaries are located; and

(dd)                          Liens securing Junior Indebtedness permitted by Section 7.1(j).

7.3                               Fundamental Changes.  Enter into any merger, consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), or Dispose of, all or substantially all of its property or business, except that:

(a)                                 any Restricted Subsidiary may be merged, consolidated or be amalgamated (i) with or into the Borrower (provided that the Borrower shall be the continuing or surviving corporation), (ii) with or into the Borrower or any other Restricted Subsidiary (provided that if only one party to such transaction is a Subsidiary Guarantor, the Subsidiary Guarantor shall be the continuing or surviving corporation) or (iii) subject to Section 7.6(g), with or into any other Group Member;

(b)                                 any Group Member may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to any Loan Party or, subject to Section 7.6(g) (to the extent applicable), any other Group Member;

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(c)                                  any Restricted Subsidiary that is not a Loan Party may (i) merge or consolidate with or into any Restricted Subsidiary that is not a Loan Party or (ii) dispose of all or substantially all of its assets (including any Disposition that is in the nature of a voluntary liquidation) to (x) another Restricted Subsidiary that is not a Loan Party or (y) to a Loan Party;

(d)                                 any Subsidiary may enter into any merger, consolidation or similar transaction with another Person to effect a transaction permitted under Section 7.6;

(e)                                  the Borrower may enter into any merger, consolidation or similar transaction in connection with the consummation of the Transactions in accordance with the Merger Agreement;

(f)                                   transactions permitted under Section 7.4 shall be permitted; and

(g)                                  in connection with a Permitted Joint Venture, any Person that is the subject of such Permitted Joint Venture (other than any Permitted Joint Venture that has obligations owing in respect of any Non-Recourse Indebtedness) may be merged or consolidated with or into the Borrower or any Subsidiary of the Borrower (provided that (i) the Borrower, or the applicable Subsidiary, shall be the continuing or surviving corporation and (ii) the Total Leverage Ratio (as of the date of the most recent financial statements delivered pursuant to Section 6.1(a) or (b), after giving pro forma effect to the consummation of such merger or consolidation) is no greater than the Total Leverage Ratio as in effect on the Closing Date (as calculated, on a Pro Forma Basis for the Transactions, as of the date of the then most recent financial statements of the then last ended fiscal quarter)).

7.4                               Disposition of Property.  Dispose of any of its property, whether now owned or hereafter acquired, or, in the case of the Borrower or any Restricted Subsidiary, issue or sell any shares of such Restricted Subsidiary’s Capital Stock to any Person, except:

(a)                                 Dispositions of obsolete, damaged, uneconomic or worn out machinery, parts, property or equipment, or property or equipment no longer used or useful, in the conduct of its business, whether now owned or hereafter acquired;

(b)                                 the sale of inventory and owned or leased vehicles, each in the ordinary course of business;

(c)                                  Dispositions permitted by Sections 7.3;

(d)                                 so long as no Change in Control shall occur therefrom, the sale or issuance of any Group Member’s Capital Stock to any other Group Member (except that a Loan Party may issue Capital Stock only to another Loan Party or to the shareholders of the Borrower);

(e)                                  any Group Member may Dispose of any of its assets to a Loan Party or, subject to Section 7.6(g) (to the extent applicable), any other Group Member, and any Group Member that is not a Loan Party may Dispose of any assets, or issue or sell Capital

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Stock, to any other Group Member that is not a Loan Party;

(f)                                   Dispositions of cash or Cash Equivalents in transactions not otherwise prohibited by this Agreement;

(g)                                  licenses granted by Group Members with respect to Intellectual Property, or leases or subleases, granted to third parties in the ordinary course of business;

(h)                                 the issuance or sale of shares of any Subsidiary’s Capital Stock to qualified directors if required by applicable law;

(i)                                     Dispositions or exchanges of equipment or real property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;

(j)                                    Dispositions of leases entered into in the ordinary course of business, to the extent that they do not materially and adversely affect the use of the property encumbered thereby for the intended purposes, taken as a whole;

(k)                                 the lapse, abandonment or other Disposition of Intellectual Property that is, in the reasonable judgment of the Borrower, (i) no longer used or useful in the business, or (ii) no longer economically practicable to maintain and not material to the conduct of the business of the Borrower and the Restricted Subsidiaries, taken as a whole;

(l)                                     the Disposition of Property which constitutes a Recovery Event;

(m)                             Dispositions consisting of the sale, transfer, assignment or other Disposition of accounts receivable in connection with the collection, compromise or settlement thereof in the ordinary course of business and not as part of a financing transaction;

(n)                                 Dispositions constituting Restricted Payments permitted by Sections 7.5, Investments permitted by Section 7.6 and Liens permitted by Section 7.2;

(o)                                 leases, subleases, licenses or sublicenses with respect to real or personal property (other than Intellectual Property), in each case in the ordinary course of business and which do not materially and adversely affect the use of the property encumbered thereby for intended purposes including leases of unimproved real property encumbered by a Mortgage, on which real property the lessee may make improvements;

(p)                                 so long as the proceeds thereof are applied pursuant to Section 3.2, Dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in the joint venture arrangements and similar binding arrangements;

(q)                                 any issuance or sale of Capital Stock in, or Indebtedness or other securities

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of an Unrestricted Subsidiary;

(r)                                    as long as no Default is continuing or would result therefrom, any Disposition of property of, or issuance or sale of Capital Stock by, any Group Member; provided that (x) the aggregate amount of all such Dispositions or issuances shall not exceed in any fiscal year 5% of Consolidated Total Assets (as calculated as at the end of the immediately preceding fiscal year of the Borrower); provided that, in the event that the aggregate amount of Dispositions, issuances or sales pursuant to this clause (r) in any fiscal year is less than 5% of Consolidated Total Assets, such difference in amount may be carried forward solely into the succeeding fiscal year to increase the limit of Dispositions, issuances or sales pursuant to this clause (r) permitted during such succeeding fiscal year by the amount of such difference, and (y) such Dispositions or issuances are made for fair market value and on an arm’s-length commercial basis;

(s)                                   Dispositions of Property related to compensation paid or to be paid, or benefits provided or to be provided, in the ordinary course of business;

(t)                                    Dispositions of the Respiratory Business so long as no Default or Event of Default has occurred and is then continuing (both before and after giving effect to such Disposition;

(u)                                 any swap of assets in exchange for services or other assets in the ordinary course of business of comparable or greater value to the business of the Borrower and its Subsidiaries as a whole, in an amount of up to $5,000,000 and as determined in good faith by the management of the Borrower;

(v)                                 the unwinding of any Hedge Agreement; and

(w)                               Dispositions or sales of Disqualified Capital Stock of the Borrower with a liquidation value not to exceed $10,000,000 at any time outstanding; and

(x)                                 Sale and Leaseback Transactions in an aggregate amount of Attributable Indebtedness not to exceed $5,000,000 at any one time outstanding.

7.5                               Restricted Payments.  Declare or pay any dividend (other than dividends payable solely in common stock of the Person making such dividend) on, or make any payment on account of, or set apart assets for a sinking or other analogous fund for, the purchase, redemption, defeasance, retirement or other acquisition of, any Capital Stock of any Group Member, in each case, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the Borrower or any Subsidiary (collectively, “Restricted Payments”), except that:

(a)                                 any Subsidiary may make Restricted Payments to the Borrower or any Subsidiary Guarantor or any other Person that owns a direct equity interest in such Subsidiary in proportion to such Person’s ownership interest in such Subsidiary;

(b)                                 each Subsidiary may make Restricted Payments to the Borrower and to Wholly Owned Subsidiaries (and, in the case of a Restricted Payment by a non-Wholly

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Owned Subsidiary, to the Borrower and any Subsidiary and to each other owner of Capital Stock or other equity interests of such Subsidiary on a pro rata basis based on their relative ownership interests);

(c)                                  the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common equity interests of such Person;

(d)                                 so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower may purchase, redeem or otherwise acquire shares of its common stock or other common equity interests or warrants or options to acquire any such shares, in each case, to the extent consideration therefor consists of the proceeds received from the substantially concurrent issue of new shares of its common stock or other common equity interests;

(e)                                  the Borrower and each Restricted Subsidiary may make payments in connection with equity interests related to compensation paid or to be paid, or benefits provided or to be provided, in the ordinary course of business to officers, directors, employees or former officers, directors or employees of the Borrower and its Subsidiaries; provided that the aggregate amount of cash payments under this clause (e) shall not exceed, in any period of 12 consecutive months, $5,000,000;

(f)                                   so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom and the Available Amount Condition has been met, the Borrower may make Restricted Payments in an aggregate amount not to exceed the then Available Amount;

(g)                                  in addition to any other Restricted Payments permitted under this Section 7.5, the Borrower and the Restricted Subsidiaries may make Restricted Payments in an aggregate amount such that all such Restricted Payments since the Closing Date made pursuant to this clause (g) shall not exceed $20,000,000;

(h)                                 the Borrower and the Restricted Subsidiaries may make any payments in connection with the consummation of the Transactions;

(i)                                     purchases by any Loan Party of the equity interests of any Permitted Joint Venture from any Person that is not a Loan Party in an aggregate amount not to exceed $25,000,000 from and after the Closing Date (provided that (i) Total Leverage Ratio (as of the date of the most recent financial statements delivered pursuant to Section 6.1(a) or (b), after giving pro forma effect to the consummation of such joint venture and the incurrence of any Indebtedness in connection therewith) is no greater than the Total Leverage Ratio as in effect on the Closing Date (as calculated, on a Pro Forma Basis for the Transactions, as of the date of the then most recent financial statements of the then last ended fiscal quarter), (ii) the amount paid by the Borrower and its Subsidiaries from and after the Closing Date in connection with the exercise of any “call” or similar right by any of them shall not exceed $25,000,000 in the aggregate and (iii) the aggregate amount set forth above in this clause (i) shall be reduced on a dollar-for-dollar basis by

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the aggregate amount of any Restricted Payments made pursuant to Section 7.6(g); and

(j)                                    the Borrower or any Restricted Subsidiary may pay cash in lieu of the fractional Capital Stock in connection with any dividend, split or combination thereof, or any Permitted Acquisition or any vesting of Capital Stock.

7.6                               Investments.  Make any advance, loan, extension of credit (by way of guaranty or otherwise) or capital contribution to, or purchase any Capital Stock, bonds, notes, debentures or other debt securities of, or any assets constituting a business line or unit of, or a division of any Person (all of the foregoing, “Investments”), except:

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

(b)                                 Investments in Cash Equivalents;

(c)                                  any Guarantee Obligation permitted by Section 7.1;

(d)                                 loans and advances to officers, directors and employees of any Group Member in the ordinary course of business (including for travel, entertainment, relocation and similar expenses) in an aggregate amount for all Group Members not to exceed $2,500,000 at any time outstanding;

(e)                                  the Merger;

(f)                                   intercompany Investments by (i) any Group Member in any Loan Party; provided that all such intercompany Investments to the extent such Investment is a loan or advance owed to a Loan Party by a Group Member that is not a Loan Party are evidenced by the Intercompany Note and (ii) any Group Member that is not a Loan Party to any other Group Member that is not a Loan Party;

(g)                                  intercompany Investments (i) by any Loan Party in another Group Member (including a Person that becomes a Restricted Subsidiary as a result of such Investments), that, after giving effect to such Investment, is not a Loan Party (including, without limitation, Guarantee Obligations with respect to obligations of any such Subsidiary, loans made to any such Subsidiary and Investments resulting from mergers with or sales of assets to any such Subsidiary) in an aggregate amount (valued at fair market value) not to exceed $30,000,000 at any time outstanding (provided that the foregoing aggregate amount set forth above in this clause (g) shall be reduced on a dollar-for-dollar basis by the aggregate amount of equity purchases made pursuant to Section 7.5(i)) and (ii) intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) of the Borrower or any Restricted Subsidiary;

(h)                                 Investments in the ordinary course of business consisting of endorsements for collection or deposit or lease, utility and other similar deposits and deposits with suppliers in the ordinary course of business;

(i)                                     Investments in connection with Permitted Acquisitions;

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(j)                                    Investments consisting of Hedge Agreements permitted by Section 7.1;

(k)                                 Investments (i) existing on the date hereof or made pursuant to legally binding written contracts in existence on the date hereof or (ii) contemplated on the date hereof and set forth on Schedule 7.6, and in each case any modification, replacement, renewal, reinvestment or extension thereof; provided that the amount of any such Investment is not increased at the time of such extension or renewal;

(l)                                     Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors or other Persons to the extent reasonably necessary in order to prevent or limit loss or in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, suppliers or customers arising in the ordinary course of business;

(m)                             Investments received as consideration in connection with Dispositions permitted under Section 7.4;

(n)                                 advances of payroll payments to employees in the ordinary course of business;

(o)                                 Investments of a Restricted Subsidiary acquired after the Closing Date or of a Person merged into or consolidated with the Borrower or merged into or consolidated with a Restricted Subsidiary in accordance with Section 7.3 after the Closing Date to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;

(p)                                 Guarantee Obligations of the Group Members of leases (other than Capital Lease Obligations) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;

(q)                                 (x) Investments consisting of purchases and acquisitions of assets or services in the ordinary course of business and consistent with past practices and (y) Investments made in the ordinary course of business in connection with obtaining, maintaining or renewing client contracts and loans and advances made to distributors in the ordinary course of business in an aggregate amount not to exceed $5,000,000 at any time outstanding;

(r)                                    Investments made by any Restricted Subsidiary that is not a Loan Party to the extent such Investments are financed with the proceeds received by such Restricted Subsidiary from an Investment made pursuant to this Section 7.6;

(s)                                   so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom and the Available Amount Condition has been met, in addition to Investments otherwise expressly permitted by this Section, Investments in an aggregate amount not to exceed the then Available Amount;

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(t)                                    other Investments by Group Members in an aggregate amount at any time outstanding of all such Investments since the Closing Date not to exceed $30,000,000 (provided the aggregate amount specified in this clause (t) shall be reduced on a dollar-for-dollar basis by the aggregate amount of any Investments made pursuant to Section 7.6(u));

(u)                                 purchases by any Loan Party of the equity interests of any Permitted Joint Venture from any Person that is not a Permitted Joint Venture in an aggregate amount not to exceed $25,000,000 from and after the Closing Date (provided that (i) Total Leverage Ratio (as of the date of the most recent financial statements delivered pursuant to Section 6.1(a) or (b), after giving pro forma effect to the consummation of such joint venture and the incurrence of any Indebtedness in connection therewith) is no greater than the Total Leverage Ratio as in effect on the Closing Date (as calculated, on a Pro Forma Basis for the Transactions, as of the date of the then most recent financial statements of the then last ended fiscal quarter), (ii) the amount paid by the Borrower and its Subsidiaries from and after the Closing Date in connection with the exercise of any “call” or similar right by any of them shall not exceed $25,000,000 in the aggregate and (iii) the aggregate amount specified above in this clause (u) shall be reduced on a dollar-for-dollar basis by the aggregate amount of any Investments made pursuant to Section 7.6(t);

(v)                                 Investments to the extent that payment for such Investments is made solely with the Capital Stock of the Borrower provided that (i) immediately prior to, and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing or would result therefrom, (ii) all transactions in connection therewith shall be consummated, in all material respects, in accordance with all applicable laws and in conformity with all applicable Governmental Authorizations, (iii) in the case of the acquisition of Capital Stock, such Capital Stock shall become subject to a security interest in favor of the Collateral Agent for the benefit of the Secured Parties and the issuer of such Capital Stock shall become a Loan Party, in each case, in accordance with Section 6.9 and 6.10, (iv) the Total Leverage Ratio, in each case, calculated on a Pro Forma Basis after giving effect to such Investment as if such Investment had occurred on the first day of the most recent period of four (4) consecutive fiscal quarters of the Borrower for which financial statements are available shall be no greater than the Total Leverage Ratio as in effect on the Closing Date (as calculated, on a Pro Forma Basis for the Transactions, as of the date of the then last ended fiscal quarter occurring prior to the Closing Date) and (v) any Person or assets or division as acquired in accordance herewith shall be in substantially the same business or lines of business in which the Borrower and/or its Subsidiaries are engaged, or are permitted to be engaged, as provided in Section 7.12, as of the time of such acquisition; and

(w)                               Acquisitions of Term Loans by the Borrower pursuant to Section 10.6(h).

The amount of any Investment, other than a Guarantee Obligation, shall be (i) the amount actually invested, as determined at the time of each such Investment, without adjustment for subsequent increases or decreases in the value of such Investment, minus (ii) the amount of dividends or distributions actually received in connection with such Investment and any return of

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capital and any payment of principal received in respect of such Investment that in each case is received in cash or Cash Equivalents (not in excess of the amount of Investments originally made).

7.7                               Optional Payments and Modifications of Certain Debt Instruments.

(a)                                 (i) Make any optional or voluntary payment, prepayment, repurchase or redemption of or otherwise optionally or voluntarily defease the Convertible Notes, in accordance with the Convertible Notes Documents, or any Junior Financing except for (x) payments in the aggregate pursuant to this clause (i) not to exceed the Available Amount during the term of this Agreement, (y) the refinancing thereof with the Net Cash Proceeds of any Permitted Refinancing of any of the foregoing or any Indebtedness (other than Indebtedness that is owed to the Borrower or any Restricted Subsidiary) or Permitted Convertible Notes Refinancing and (z) the conversion of the Convertible Notes, in accordance with the Convertible Notes Documents to Qualified Capital Stock, or the conversion of any Junior Financing to Qualified Capital Stock; provided that, in the case of (x), no Default or Event of Default shall have occurred and be continuing or would result therefrom and the Available Amount Condition has been met; and (ii) amend, modify, waive or otherwise change, or consent or agree to any amendment, modification, waiver or other change to, any of the terms of the Convertible Notes Documents or any Junior Financing (other than (x) any amendment, modification, waiver or other change that is not materially adverse to interests of the Lenders and (y) in all events, any such amendment, modification, waiver or other change that in the case of the Convertible Notes Documents or any Junior Indebtedness, would, exclusively, extend the maturity or reduce the amount of any payment of principal thereof or reduce the rate or extend any date for payment of interest thereon).

(b)                                 Amend, modify, waive or otherwise change, or consent or agree to any amendment, modification, waiver or other change to, any of the terms of any Organizational Document of any Loan Party or any Pledged Company if such amendment, modification, waiver or change could reasonably be expected to have a material and adverse impact on the interests of the Lenders.

7.8                               Transactions with Affiliates.  Enter into any transaction of any kind with any Affiliate of the Borrower, whether or not in the ordinary course of business, other than on fair and reasonable terms substantially as favorable to the Borrower or such Restricted Subsidiary as would be obtainable by the Borrower or such Restricted Subsidiary at the time in a comparable arm’s length transaction with a Person other than an Affiliate, except:

(a)                                 transactions between or among (i) Loan Parties or (ii) Group Members (provided that (x) transactions between any Loan Party, on one hand, and a Group Member that is not a Loan Party, on one other hand, shall be on commercially reasonable terms and shall be limited to transactions not otherwise prohibited by this Agreement and (y) transactions between a Permitted Joint Venture and a Group Member that is not a Permitted Joint Venture, on one other hand, shall be on commercially reasonable terms and shall be limited to transactions not otherwise prohibited by this Agreement);

(b)                                 transactions related to compensation paid or to be paid, or benefits

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provided or to be provided, in the ordinary course of business of any Loan Party;