EXHIBIT 10.1
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THIRD AMENDMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated as
of November 29, 2005, is by and among CHATTEM, INC., a Tennessee corporation
(the "Borrower"), each of the Borrower's Domestic Subsidiaries (individually a
"Guarantor" and collectively with the Borrower, the "Credit Parties"), the
Persons identified as lenders on the signature pages hereto (the "Lenders") and
BANK OF AMERICA, N.A., as agent for the Lenders (in such capacity, the "Agent").
W I T N E S S E T H
WHEREAS, the Credit Parties, the Lenders, and the Agent have entered
into that certain Credit Agreement dated as of February 26, 2004 (as amended
from time to time, the "Credit Agreement");
WHEREAS, the Borrower has requested that the Lenders amend the Credit
Agreement as provided herein; and
WHEREAS, the Lenders have agreed to amend the Credit Agreement on the
terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the agreements hereinafter set
forth, and for other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto agree as follows:
PART I
DEFINITIONS
Unless otherwise defined herein or the context otherwise requires,
terms used in this Amendment, including its preamble and recitals, have the
meanings provided in the Credit Agreement (as amended hereby).
PART II
AMENDMENTS TO CREDIT AGREEMENT
SUBPART 2.1 The following definitions appearing in Section 1.1 of the
Credit Agreement are hereby amended and restated to read as follows:
"Applicable Percentage" means for purposes of calculating the
applicable interest rate for any day for Loans, the applicable rate for
any day for the Letter of Credit Fees and the applicable rate for any
day for the Unused Fee, the appropriate applicable percentages
corresponding to the Leverage Ratio in effect as of the most recent
Calculation Date as shown below:
======= ================== ==================== ================ ================
APPLICABLE
PERCENTAGE FOR APPLICABLE
EURODOLLAR LOANS PERCENTAGE FOR APPLICABLE
PRICING LEVERAGE AND LETTER OF BASE RATE PERCENTAGE FOR
LEVEL RATIO CREDIT FEE LOANS UNUSED FEES
------- ------------------ -------------------- ---------------- ----------------
I <1.50 to 1.0 1.00% 0.00% 0.250%
-
------- ------------------ -------------------- ---------------- ----------------
II >1.50 to 1.0 but 1.25% 0.00% 0.300%
< 2.50 to 1.0
-
------- ------------------ -------------------- ---------------- ----------------
III >2.50 to 1.0 but 1.50% 0.00% 0.350%
< 3.25 to 1.0
-
------- ------------------ -------------------- ---------------- ----------------
IV >3.25 to 1.0 but 1.75% 0.25% 0.400%
< 3.75 to 1.0
-
------- ------------------ -------------------- ---------------- ----------------
V > 3.75 to 1.0 2.00% 0.50% 0.500%
======= ================== ==================== ================ ================
The Applicable Percentage shall, in each case, be determined and
adjusted quarterly on the date (each a "Calculation Date") five
Business Days after the date by which the Borrower is required to
provide the officer's certificate in accordance with the provisions of
Section 7.1(c); (i) the Applicable Percentages in effect on November
29, 2005 shall be based on Pricing Level II (as shown above) and shall
remain at Pricing Level II until the first Calculation Date following
the fiscal quarter ending November 30, 2005 and, thereafter, the
Applicable Percentage shall be determined by the then current Leverage
Ratio, and (ii) if the Borrower fails to provide the officer's
certificate required by Section 7.1(c) on or before the most recent
Calculation Date or fails to deliver a copy of such officer's
certificate to the Agent as required by Section 7.1(c), the Applicable
Percentage from such Calculation Date shall be based on Pricing Level V
until such time that an appropriate officer's certificate is provided
whereupon the Applicable Percentage shall be determined by the then
current Leverage Ratio. Each Applicable Percentage shall be effective
from one Calculation Date until the next Calculation Date. Any
adjustment in the Applicable Percentage shall be applicable to all
existing Loans and Letters of Credit as well as any new Loans or
Letters of Credit made or issued.
"Cash Equivalents" means (a) securities issued or directly and
fully guaranteed or insured by the United States of America or any
agency or instrumentality thereof (provided that the full faith and
credit of the United States of America is pledged in support thereof)
having maturities of not more than two years from the date of
acquisition, provided that solely with respect to HBA Indemnity
Company, Ltd ("HBA") such securities of a type described in this
subpart (a) owned by HBA may have maturities of not more than
twenty-four months from the date of acquisition, (b) Dollar denominated
(or with respect to Foreign Subsidiaries, Dollar denominated and non
Dollar denominated) time deposits, including eurodollar time deposits,
and certificates of deposit of (i) any Lender, (ii) any domestic (or
with respect to Foreign Subsidiaries, any domestic or nondomestic)
commercial bank of recognized standing having capital and surplus in
excess of $500,000,000 or (iii) any bank whose short-term commercial
paper rating from S&P is at least A-1 or the equivalent thereof or from
▇▇▇▇▇'▇ is at least P-1 or the equivalent thereof (any such bank being
an "Approved Bank"), in each case with maturities of not more than two
years from the date of acquisition, (c) commercial paper and variable
or fixed rate notes issued by any Approved Bank (or by the parent
company thereof) or any variable rate notes issued by, or guaranteed
by, any domestic corporation rated A-1 (or the equivalent thereof) or
better by S&P or P-1 (or the equivalent thereof) or better by Moody's
and maturing within 270 days of the date of acquisition, (d) repurchase
agreements with a
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bank or trust company (including any of the Lenders) or recognized
securities dealer having capital and surplus in excess of $500,000,000
for direct obligations issued by or fully guaranteed by the United
States of America in which the Borrower shall have a perfected first
priority security interest (subject to no other Liens) and having, on
the date of purchase thereof, a fair market value of at least 100% of
the amount of the repurchase obligations, (e) Investments in money
market investment programs registered under the Investment Company Act
of 1940, as amended, which are administered by reputable financial
institutions having capital of at least $500,000,000 and rated AA (or
the equivalent thereof) or better by S&P or Aa (or the equivalent
thereof) or better by Moody's, with maturities of not more than two
years from the date of acquisition and (f) auction rate preferred stock
issued by any domestic corporation rated AA (or the equivalent thereof)
or better by S&P or Aa (or the equivalent thereof) or better by
Moody's, with maturities of not more than two years from the date of
acquisition.
"EBITDA" means, for any period, with respect to the Borrower
and its Subsidiaries on a consolidated basis, the sum of (a) Net Income
for such period (excluding the effect of any extraordinary or other
non-recurring gains and losses outside of the ordinary course of
business) plus (b) an amount which, in the determination of Net Income
for such period has been deducted for (i) Interest Expense for such
period, (ii) total federal, state, foreign or other income taxes for
such period, (iii) all depreciation and amortization for such period,
(iv) for the fiscal quarter periods ending on November 30, 2005 and
February 28, 2006, any non-recurring charges incurred by the Borrower
during such periods in connection with the redemption or prepayment of
Subordinated Debt in accordance with Section 8.11 of the Credit
Agreement (and the termination of related Hedging Agreements),
including all premiums, fees and legal costs related thereto in an
aggregate amount not to exceed $2,750,000 in the case of non-cash
charges and $2,000,000 in the case of cash charges, (v) to the extent
incurred during the applicable period and subsequent to November 30,
2003, the amount of any write-down of goodwill required under FASB 142
in an aggregate amount not to exceed $40,000,000, all as determined in
accordance with GAAP and (vi) non-cash expenses required under FASB
123R in connection with unvested stock options less (c) an amount
which, in the determination of Net Income for such period, has been
included for the recovery and/or reversal of charges or reserves in
connection with the Borrower's phenylpropanolamine litigation.
"Permitted Acquisition" means the acquisition of all of the
Capital Stock of another Person, all or substantially all of the assets
of another Person or a brand or product line of another Person,
provided that each of the following conditions are satisfied: (a) prior
to such acquisition, the Borrower shall deliver to the Agent and
Lenders a Pro Forma Compliance Certificate demonstrating that after
giving effect to such acquisition on a Pro Forma Basis, the Credit
Parties and their Subsidiaries would have been in compliance with all
the financial covenants set forth in Section 7.12, (b) simultaneously
with any such acquisition, the Borrower shall have taken all action
required under applicable law, or reasonably requested by the Agent, to
grant to the Agent, for the benefit of the Lenders, a valid and
perfected first-priority security interest in all the assets acquired
pursuant to such acquisition, (c) the acquisition is consummated
pursuant to a negotiated acquisition agreement and involves the
purchase of a consumer product or product line similar to those
manufactured, distributed or sold by the Borrower as of the date
hereof, or of a business that manufactures, distributes or sells one or
more consumer products or product lines, similar to those manufactured,
distributed or sold by the Borrower as of the date hereof, (d) after
giving effect to the acquisition, the representations and warranties
set forth in Section 6 hereof shall be true and correct in all material
respects on and as of the date of such acquisition with the same effect
as though made on and as of such date, (e) no Default or Event of
Default exists and is continuing or would result from such acquisition
and (f) the aggregate consideration (including cash and non-cash
consideration, assumption of liabilities, Earn Out Obligations and any
contingency payments
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associated therewith) paid by the Borrower and its Subsidiaries shall
not exceed $75,000,000 in the aggregate for all such acquisitions
occurring subsequent to the Closing Date.
"Revolving Committed Amount" means ONE HUNDRED MILLION DOLLARS
($100,000,000) or such lesser amount as the Revolving Committed Amount
may be reduced pursuant to Section 2.1(d); provided that the Revolving
Committed Amount may be increased to up to ONE HUNDRED FIFTY MILLION
DOLLARS ($150,000,000) pursuant to Section 2.1(e).
"Termination Date" means November 15, 2010.
SUBPART 2.2 Section 2.1(e) of the Credit Agreement is hereby amended
and restated to read as follows:
(e) The Borrower may at any time and from time to time,
upon prior written notice by the Borrower to the Agent, increase the
Revolving Committed Amount by up to FIFTY MILLION DOLLARS ($50,000,000)
with additional Revolving Commitments from any existing Lender or new
Revolving Commitments from any other Person selected by the Borrower
and approved by the Agent; provided that:
(i) any such increase shall be in a minimum principal
amount of $5,000,000 and in integral multiples of $5,000,000
in excess thereof;
(ii) no Default or Event of Default shall be
continuing at the time of any such increase;
(iii) no existing Lender shall be under any
obligation to increase its Revolving Commitment and any such
decision whether to increase its Revolving Commitment shall be
in such Lender's sole and absolute discretion; and
(iv) any new Lender shall join this Agreement by
executing such joinder documents reasonably required by the
Agent.
SUBPART 2.3 Section 7.12(c) of the Credit Agreement is hereby amended
and restated to read as follows:
(c) Senior Secured Leverage Ratio. The Senior Secured
Leverage Ratio, as of the end of each fiscal quarter, shall be less
than or equal to 2.50 to 1.0.
SUBPART 2.4 Section 7.12(d) of the Credit Agreement is hereby amended
and restated to read as follows:
(d) Net Worth. At all times Net Worth shall be no less
than $88,000,000 increased on a cumulative basis, commencing with the
fiscal quarter ending November 30, 2005, by an amount equal to, (i) as
of the last day of each fiscal quarter, 75% of Net Income (calculated
without giving effect to (x) the amount of any write-down of goodwill
required under FASB 142 occurring or incurred subsequent to November
30, 2005 in an aggregate amount not to exceed $20,000,000, and (y) for
the fiscal quarter periods ending on November 30, 2005 and February 28,
2006, any non-recurring charges incurred by the Borrower during such
periods in connection with the redemption or prepayment of Indebtedness
evidenced by the Floating Rate Indenture (and the termination of
related Hedging Agreements), including all premiums, fees and legal
costs related thereto in an aggregate amount not to exceed $2,750,000
in the case of non-cash charges and $2,000,000 in the case of cash
charges) for the fiscal quarter then ended (without deduction for
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losses)) plus (ii) 100% of the gross cash proceeds (net of transaction
costs and taxes) from any Equity Issuance subsequent to November 30,
2005. For purposes of determining compliance with the Net Worth
covenant set forth above, the base number of $88,000,000 set forth
above shall be reduced by (i) the amount of any write-down of goodwill
required under FASB 142 occurring or incurred subsequent to November
30, 2005 in an aggregate amount not to exceed $20,000,000 (ii)
repurchases of the Borrower's Capital Stock occurring subsequent to
November 30, 2005 permitted by Section 8.7 in an aggregate amount not
to exceed $100,000,000 and (iii) for the fiscal quarter periods ending
on November 30, 2005 and February 28, 2006, any non-recurring charges
incurred by the Borrower during such periods in connection with the
redemption or prepayment of Indebtedness evidenced by the Floating Rate
Indenture in accordance with Section 8.11 of the Credit Agreement (and
the termination of related Hedging Agreements), including all premiums,
fees and legal costs related thereto in an aggregate amount not to
exceed $2,750,000 in the case of non-cash charges and $2,000,000 in the
case of cash charges.
SUBPART 2.5 Section 7.12(e) of the Credit Agreement is hereby amended
and restated to read as follows:
(e) Brand Value. As of the end of each fiscal quarter of
the Borrower, with respect to the Borrower and its Subsidiaries on a
consolidated basis, the book value of all brands or product lines of
the Borrower and its Subsidiaries on a consolidated basis on such date
shall be greater than or equal to $190,000,000.
SUBPART 2.6 Section 8.5 of the Credit Agreement is hereby amended and
restated to read as follows:
8.5 SALE OR LEASE OF ASSETS.
No Credit Party will, nor will it permit any of its
Subsidiaries to, convey, sell, lease, transfer or otherwise dispose of,
in one transaction or a series of transactions, all or any part of its
business or assets whether now owned or hereafter acquired, including,
without limitation, inventory, receivables, real property, leasehold
interests, equipment and securities other than (a) any inventory or
other assets sold, leased or disposed of (or simultaneously replaced
with like goods) in the ordinary course of business, (b) obsolete, idle
or worn-out assets no longer used or useful in its business, (c) the
sale, lease or transfer or other disposal by a Credit Party other than
the Borrower of any or all of its assets to the Borrower or to any
other Credit Party, (d) the sale, transfer or other disposition of
"margin stock" within the meaning of Regulation U, (e) the non-recourse
sale of trade accounts receivable to a Person that is not an Affiliate
of the Borrower provided that (i) at the time of the sale (and after
giving effect thereto) no Default or Event of Default exists, (ii) as a
result of such sale, no Material Adverse Effect would occur or be
reasonably expected to occur, and (iii) the amount of such receivables
subject to such sales do not exceed, in the aggregate, $7,000,000 at
any time outstanding, (f) other sales of equipment provided that (i)
the sale is for fair market value, (ii) the sale is for cash
consideration, (iii) at the time of the sale (and after giving effect
thereto) no Default or Event of Default exists, (iv) as a result of
such sale, no Material Adverse Effect would occur or be reasonably
expected to occur and (v) such sales do not exceed, in the aggregate,
$250,000 during any fiscal year, (g) sales of product lines (or the
right to produce a consumer product or products) provided that (i) the
dispositions permitted under this subparagraph (g) shall not exceed
$10,000,000 (excluding the sale of the PHISODERM(R) product line)
during any fiscal year and, (ii) the dispositions permitted under this
subparagraph (g) during any fiscal year shall be limited to product
lines (or the right to produce a consumer product or products)
(excluding the sale of the PHISODERM(R) product line) having aggregate
sales for the twelve-month period ending on the fiscal quarter ending
immediately preceding the sale in an aggregate amount not exceeding ten
percent (10%) of EBITDA for such twelve month period and
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(iii) the Credit Parties shall have delivered to the Agent a Pro Forma
Compliance Certificate demonstrating that after giving effect to any
such disposition on a Pro Forma Basis, the Credit Parties and their
Subsidiaries would have been in compliance with all the financial
covenants set forth in Section 7.12, (h) the transfer by the Borrower
of the Capital Stock of Chattem (U.K.) Limited to Chattem Global
Consumer Products Limited and (i) the sale, lease or transfer or other
disposal by a Foreign Subsidiary of the Borrower of any or all of its
assets to any other Foreign Subsidiary of the Borrower.
SUBPART 2.7 Section 8.7 of the Credit Agreement is hereby amended and
restated to read as follows:
8.7 RESTRICTED PAYMENTS.
No Credit Party will, nor will it permit any of its
Subsidiaries to, directly or indirectly, (a) declare or pay any
dividends (whether cash or otherwise) or make any other distribution
upon any shares of its Capital Stock of any class or (b) purchase,
redeem or otherwise acquire or retire or make any provisions for
redemption, acquisition or retirement of any shares of its Capital
Stock of any class or any warrants or options to purchase any such
shares (any such declaration, payment, distribution, purchase,
redemption or other acquisition, a "Restricted Payment"); provided,
however, (i) the Subsidiaries of the Borrower may pay dividends to the
Borrower and (ii) the Borrower may purchase, redeem, acquire or retire
shares of its Capital Stock of any class or any warrants or options to
purchase any such shares of its Capital Stock occurring subsequent to
November 30, 2005 in an amount not to exceed $100,000,000 in the
aggregate during the term of this Credit Agreement so long as (A) after
giving effect thereto no Default or Event of Default exists and (B) the
Borrower shall have provided the Agent a Pro Forma Compliance
Certificate demonstrating that after giving effect to any such
transaction on a Pro Forma Basis, the Credit Parties and their
Subsidiaries would have been in compliance with all the financial
covenants set forth in Section 7.12.
SUBPART 2.8 Section 8.11 of the Credit Agreement is hereby amended and
restated to read as follows:
8.11 SUBORDINATED DEBT.
Notwithstanding Section 8.10, no Credit Party will (i) make or
offer to make any principal payments with respect to the Subordinated
Debt, (ii) redeem or offer to redeem any of the Subordinated Debt or
(iii) deposit any funds intended to discharge or defease any or all of
the Subordinated Debt; provided, however, the Borrower may redeem or
repurchase the Subordinated Debt in an aggregate amount not to exceed
$20,000,000 (such amount to include any accrued interest, premiums or
penalties associated therewith) during any fiscal year provided the
Credit Parties shall have delivered to the Agent a Pro Forma Compliance
Certificate demonstrating that after giving effect to such repurchase
or redemption on a Pro Forma Basis, the Credit Parties and their
Subsidiaries would have been in compliance with all the financial
covenants set forth in Section 7.12. The Subordinated Debt or the
Subordinated Indenture may not be amended or modified in any material
manner without the prior written consent of the Required Lenders, it
being specifically understood and agreed that no amendment to Article
Four or Article Twelve of the Subordinated Indenture shall be made
without the prior written consent of the Required Lenders.
SUBPART 2.9 Section 8.15 of the Credit Agreement is hereby amended and
restated to read as follows:
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8.15 CAPITAL EXPENDITURES.
The Credit Parties and their Subsidiaries will not make
Capital Expenditures, in any fiscal year, that would exceed $7,500,000
in the aggregate; provided, however, in addition to the maximum annual
Capital Expenditures permitted by the preceding clause, the Credit
Parties shall also be permitted to make a one time Capital Expenditure
not to exceed $8,000,000 for the construction and/or acquisition of a
warehouse located in Chattanooga, Tennessee.
SUBPART 2.10 Schedule 1.1(a) of the Credit Agreement is hereby amended
and replaced with Schedule 1.1(a) attached hereto.
PART III
CONDITIONS TO EFFECTIVENESS
SUBPART 3.1 Effective Date. This Amendment shall be and become
effective as of November 29, 2005, subject to the satisfaction of the following
conditions:
(a) Execution of Counterparts of Amendment. The Agent shall
have received counterparts of this Amendment, which collectively shall
have been duly executed on behalf of the Borrower, the Guarantors, the
Lenders and the Agent.
(b) Authority Documents and Opinions. The Agent shall have
received (i) copies of resolutions of the board of directors (or
comparable governing authority) of each of the Credit Parties approving
and adopting this Amendment and authorizing execution and delivery
thereof, certified by a secretary or assistant secretary of such Credit
Party to be true and correct and in force and effect as of the date
hereof and (ii) a written opinion of legal counsel for the Credit
Parties, dated as of the date hereof, in form and substance reasonably
satisfactory to the Agent.
(c) Amendment Fees. The Borrower shall have paid to the Agent,
(i) for the account of each Lender executing this Amendment, a fee
equal to 0.125% of such Lender's Commitments (calculated prior to
giving effect to this Amendment) and (ii) for the account of each
Lender increasing its Commitment, a fee equal to 0.20% of such increase
to such Lender's Commitment.
(d) Tennessee Recording Taxes. The Borrower shall have paid
applicable Tennessee recording taxes resulting from the increase in the
Revolving Commitments.
(e) Agent's Fees and Expenses. The Borrower shall have paid to
the Agent, all reasonable costs and expenses of the Agent in connection
with the preparation, execution and delivery of this Amendment,
including without limitation the reasonable fees and expenses of the
Agent's legal counsel.
PART IV
MISCELLANEOUS
SUBPART 4.1 Representations and Warranties. Each Credit Party hereby
represents and warrants to the Agent and the Lenders that (a) no Default or
Event of Default exists under the Credit Agreement or any of the other Credit
Documents on and as of the date hereof, (b) each Credit Party has the requisite
corporate power and authority to execute, deliver and perform this Amendment and
(c) the representations and warranties set forth in Section 6 of the Credit
Agreement are true and correct in all material respects as of the date hereof
(except for those which expressly relate to an earlier date). Each
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Credit Party acknowledges and confirms that the Borrower's obligations to repay
the outstanding principal amount of the Loans are unconditional and not subject
to any offsets, defenses or counterclaims.
SUBPART 4.2 Acknowledgment. Each Guarantor hereby acknowledges and
consents to all of the terms and conditions of this Amendment and agrees that
this Amendment does not operate to reduce or discharge the Guarantors'
obligations under the Credit Agreement or the other Credit Documents.
SUBPART 4.3 Cross-References. References in this Amendment to any Part
or Subpart are, unless otherwise specified, to such Part or Subpart of this
Amendment.
SUBPART 4.4 Instrument Pursuant to Credit Agreement. This Amendment is
a Credit Document executed pursuant to the Credit Agreement and shall (unless
otherwise expressly indicated therein) be construed, administered and applied in
accordance with the terms and provisions of the Credit Agreement.
SUBPART 4.5 References in Other Credit Documents. At such time as this
Amendment shall become effective pursuant to the terms of Subpart 3.1, all
references in the Credit Documents to the "Credit Agreement" shall be deemed to
refer to the Credit Agreement as amended by this Amendment.
SUBPART 4.6 Counterparts/Telecopy. This Amendment may be executed by
the parties hereto in several counterparts, each of which shall be deemed to be
an original and all of which shall constitute together but one and the same
agreement. Delivery of executed counterparts of the Amendment by telecopy shall
be effective as an original and shall constitute a representation that an
original shall be delivered.
SUBPART 4.7 Governing Law. THIS AMENDMENT SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF TENNESSEE.
SUBPART 4.8 Successors and Assigns. This Amendment shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
SUBPART 4.9 General. Except as amended hereby, the Credit Agreement and
all other Credit Documents shall continue in full force and effect.
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IN WITNESS WHEREOF the Borrower, the Guarantors and the Lenders have
caused this Amendment to be duly executed on the date first above written.
BORROWER: CHATTEM, INC.,
-------- a Tennessee corporation
By:
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Name:
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Title:
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GUARANTORS: SIGNAL INVESTMENT & MANAGEMENT CO.,
---------- a Delaware corporation
By:
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Name:
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Title:
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SUNDEX, LLC,
a Tennessee limited liability company
By:
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Name:
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Title:
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CHATTEM (CANADA) HOLDINGS, INC.,
a Delaware corporation
By:
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Name:
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Title:
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AGENT: BANK OF AMERICA, N.A.,
----- in its capacity as Agent
By:
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Name:
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Title:
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LENDERS: BANK OF AMERICA, N.A.,
------- in its capacity as a Lender
By:
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Name:
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Title:
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SUNTRUST BANK
By:
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Name:
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Title:
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BRANCH BANKING AND TRUST
By:
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Name:
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Title:
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NATIONAL CITY BANK
By:
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Name:
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Title:
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