8-K

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 OR 15(d) of The

Securities Exchange Act of 1934

Date of Report (date of earliest event reported): March 17, 2011

K-V PHARMACEUTICAL COMPANY

(Exact name of registrant as specified in its charter)

Commission File Number 1-9601

Delaware	1-9601	43-0618919
(State or other jurisdiction of incorporation)	(Commission File Number)	(I.R.S. Employer Identification No.)

One Corporate Woods Drive Bridgeton, MO	63044
(Address of principal executive offices)	(Zip Code)

(314) 645-6600

(Registrant’s telephone number, including area code)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

¨ Written communications pursuant to Rule 425 under the Securities Act.

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act.

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act.

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act.

Item 1.01. Entry into a Material Definitive Agreement.

On March 17, 2011, K-V Pharmaceutical Company (the “Company” or the “Registrant”) completed the issuance and sale of $225 million aggregate principal amount of its 12% Senior Secured Notes due 2015 (the “Notes”) pursuant to the purchase agreements entered into by the Company on March 15, 2011 and previously reported in its Current Report on Form 8-K filed March 16, 2011. The Notes were sold to institutional investors under the purchase agreements in a private placement. A copy of the form of purchase agreement entered into with each purchaser is filed as Exhibit 10.1 hereto and is incorporated herein by reference.

The Notes were issued pursuant to an Indenture, dated as of March 17, 2011, by and among the Company, certain of the Company’s subsidiaries as guarantors, and Wilmington Trust FSB, as Trustee (the “Indenture”). A copy of the Indenture and the form of Note are filed as Exhibit 4.1 and Exhibit 4.2, respectively, hereto and are incorporated herein by reference.

The Notes are guaranteed by the Company’s domestic subsidiaries. The Notes were issued at a price equal to 97% of their face value and will accrue interest at an annual rate equal to 12%, payable semiannually. The Notes are secured by the assets of the Company and by the assets and securities of certain of the Company’s subsidiaries pursuant to a pledge and security agreement dated as of March 17, 2011. A copy of the pledge and security agreement is filed as Exhibit 10.2 hereto and is incorporated herein by reference.

The Notes will mature March 15, 2015. At any time prior to March 15, 2013, the Company may redeem up to 35% of the aggregate principal amount of the Notes at a redemption price of 112% of the principal amount of the Notes, plus accrued and unpaid interest to the redemption date, with the net cash proceeds of one or more equity offerings. At any time prior to March 15, 2013, the Company may redeem all or part of the Notes at a redemption price equal to (1) the sum of the present value, discounted to the redemption date, of (i) a cash payment to be made on March 15, 2013 of 109% of the principal amount of the Notes, and (ii) each interest payment that is scheduled to be made on or after the redemption date and on or before March 15, 2013, plus (2) accrued and unpaid interest to the redemption date. At any time after March 15, 2013 and before March 15, 2014, the Company may redeem all or any portion of the Notes at a redemption price of 109% of the principal amount of the Notes, plus accrued and unpaid interest to the redemption date. At any time after March 15, 2014, the Company may redeem all or any portion of the Notes at a redemption price of 100% of the principal amount of the Notes, plus accrued and unpaid interest to the redemption date.

The Indenture contains certain other agreements and restrictions, including: (i) restrictions on the Company’s ability to pay dividends, repurchase the Company’s stock, make early payments on indebtedness that is junior to the Notes, and make certain investments; (ii) an obligation for the Company to repurchase the Notes in the event of a change of control of the Company, the sale of all or substantially all of its assets or certain merger or consolidation transactions; (iii) restrictions on the Company’s ability to incur additional debt; (iv) a requirement that the Company file a registration statement with the SEC and conduct a registered exchange offer to exchange the Notes for notes that are not restricted securities under the Securities Act of 1933, as amended (the “Securities Act”); and (v) a requirement that the Company establish and fund an

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interest reserve account of $27 million to fund interest payments due on the Notes during the first year after their issuance.

The Notes were offered only to accredited investors pursuant to Regulation D under the Securities Act. The Notes have not been registered under the Securities Act or any state or other securities laws and may not be offered or sold in the United States absent registration or an applicable exemption from registration requirements of the Securities Act and applicable state securities laws.

The Company used a portion of the net proceeds from the sale of the Notes to repay in full the Company’s outstanding obligations under its credit agreement with U.S. Healthcare I, L.L.C. and U.S. Healthcare II, L.L.C. (including the payment of related premiums), to terminate the related future loan commitments thereunder, and to establish an escrow reserve for one year of interest payments on the Notes. The remaining proceeds from the issuance of the Notes will be used for general corporate purposes.

The foregoing description of the Purchase Agreements, Indenture, Notes and pledge and security agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the form of purchase agreement, indenture, notes and pledge and security agreement attached hereto.

Item 2.03. Creation of a Direct Financial Obligation or an Obligation under and Off-Balance Sheet Arrangement of a Registrant.

The information set forth in Item 1.01 of this Current Report on Form 8-K that relates to the Indenture and the issuance and sale of the Notes is incorporated by reference into this Item 2.03.

Item 9.01 Financial Statements and Exhibits.

(d) The following exhibits are furnished as part of this report:

Exhibit Number	Description
4.1	Indenture, dated as of March 17, 2011 by and among the Company, certain of the Company’s subsidiaries as guarantors, and Wilmington Trust FSB, as Trustee.
4.2	Form of 12% Senior Secured Note due 2015 issued by the Company.
10.1	Form of Purchase Agreement by and among the Company, the Guarantors and each of the purchasers of the Notes.
10.2	Pledge and Security Agreement, dated as of March 17, 2011, by and among the Company, the Grantors and Wilmington Trust FSB, as Collateral Agent.

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The Registrant will post this Form 8-K on its Internet website at www.kvpharmaceutical.com. References to the Registrant’s website address are included in this Form 8-K only as inactive textual references and the Registrant does not intend them to be active links to its website. Information contained on the Registrant’s website does not constitute part of this Form 8-K.

*        *         *

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SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

Dated: March 23, 2011

K-V PHARMACEUTICAL COMPANY
By:	/s/    GREGORY J. DIVIS, JR.
	Gregory J. Divis, Jr.
	President and Chief Executive Officer

EX-4.1

Exhibit 4.1

EXECUTION VERSION

K-V PHARMACEUTICAL COMPANY

and

EACH OF THE GUARANTORS NAMED HEREIN

and

WILMINGTON TRUST FSB,

as Trustee

INDENTURE

Dated as of March 17, 2011

$ 225,000,000 Principal Amount

12% Senior Secured Notes due 2015

CROSS-REFERENCE TABLE

TIA Section	Indenture Section
310(a)(1)	7.10
(a)(2)	7.10
(a)(3)	N.A.
(a)(4)	N.A.
(a)(5)	N.A.
(b)	7.08; 7.10
(c)	N.A.
311(a)	7.11
(b)	7.11
(c)	N.A.
312(a)	2.05
(b)	12.03
(c)	12.03
313(a)	7.06
(b)(1)	N.A.
(b)(2)	7.06
(c)	7.06; 12.02
(d)	7.06
314(a)	4.03
(b)	N.A.
(c)(1)	12.04
(c)(2)	12.04
(c)(3)	N.A.
(d)	N.A.
(e)	12.05
(f)	N.A.
315(a)	7.01(B)
(b)	7.05; 12.02
(c)	7.01(A)
(d)	7.01(C)
(e)	6.11
316(a) (last sentence)	2.09
(a)(1)(A)	6.05
(a)(1)(B)	6.04
(a)(2)	N.A.
(b)	6.07
(c)	N.A.
317(a)(1)	6.08
(a)(2)	6.09
(b)	2.04
318(a)	12.01

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TABLE OF CONTENTS

	Page
I.       DEFINITIONS AND INCORPORATION BY REFERENCE		1
1.01 Definitions		1
1.02 Other Definitions		27
1.03 Incorporation by Reference of Trust Indenture Act		28
1.04 Rules of Construction		28
II.     THE SECURITIES		29
2.01 Form and Dating		29
2.02 Execution and Authentication		29
2.03 Registrar, and Paying Agent		30
2.04 Paying Agent to Hold Money in Trust		31
2.05 Securityholder Lists		31
2.06 Transfer and Exchange		31
2.07 Replacement Securities		32
2.08 Outstanding Securities		32
2.09 Securities Held by the Company or an Affiliate		33
2.10 Temporary Securities		33
2.11 Cancellation		33
2.12 Defaulted Interest		33
2.13 CUSIP Numbers		34
2.14 Deposit of Moneys		34
2.15 Book-Entry Provisions for Global Securities		34
2.16 Special Transfer Provisions		35
2.17 Restrictive Legends		37
2.18 Automatic Exchange from Restricted Global Note to Unrestricted Global Note		37
2.19 Ranking		38
2.20 Post-Exchange Notes		38
III.    REDEMPTION AND REPURCHASE		39
3.01 Right of Redemption and Repurchase		39
3.02 Notices to Trustee		40
3.03 Selection of Securities to Be Redeemed		40
3.04 Notice of Redemption		41
3.05 Effect of Notice of Redemption		42
3.06 Deposit of Redemption Price		42
3.07 Securities Redeemed in Part		43
3.08 Repurchase at Option of Holder Upon a Fundamental Change		43
3.09 Repurchase at Option of Holder Upon an Asset Sale		49

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IV.   COVENANTS	54
4.01 Payment of Securities	54
4.02 Maintenance of Office or Agency	54
4.03 SEC Reports and Rule 144A Information and Other Reports	54
4.04 Compliance Certificate	55
4.05 Stay, Extension and Usury Laws	56
4.06 Corporate Existence	56
4.07 Notice of Default	56
4.08 Payment of Taxes	56
4.09 Maintenance of Properties and Insurance	57
4.10 [Reserved]	57
4.11 Limitation on Restricted Payments	57
4.12 Limitations on Transactions with Affiliates	61
4.13 Limitation on Incurrence of Additional Indebtedness and the Issuance of Disqualified Capital Stock	62
4.14 Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries	63
4.15 Limitation on Asset Sales	65
4.16 Limitation on Liens	66
4.17 Conduct of Business	67
4.18 Payments to Hologic	67
4.19 [Reserved]	67
4.20 Limitation on Sale and Leaseback Transactions	67
4.21 Payments for Consents	68
4.22 Exchange Offer	68
4.23 Interest Reserve Account	69
4.24 Additional Guarantors to Become Party to Collateral Documents	70
4.25 No Impairment of Security Interest	70
4.26 Certain Post-Closing Obligations	70
V.     SUCCESSORS	70
5.01 When Company May Merge, etc.	70
5.02 Successor Substituted	71
VI.   DEFAULTS AND REMEDIES	71
6.01 Events of Default	71
6.02 Acceleration	74
6.03 Other Remedies	75
6.04 Waiver of Past Defaults	75
6.05 Control by Majority	75
6.06 Limitation on Suits	76
6.07 Rights of Holders to Receive Payment	76
6.08 Collection Suit by Trustee	76
6.09 Trustee May File Proofs of Claim	76

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6.10 Priorities	77
6.11 Undertaking for Costs	77
VII.  TRUSTEE	78
7.01 Duties of Trustee	78
7.02 Rights of Trustee	79
7.03 Individual Rights of Trustee	80
7.04 Trustee’s Disclaimer	81
7.05 Notice of Defaults	81
7.06 Reports by Trustee to Holders	81
7.07 Compensation and Indemnity	81
7.08 Replacement of Trustee	82
7.09 Successor Trustee by Merger, etc.	83
7.10 Eligibility; Disqualification	83
7.11 Preferential Collection of Claims Against Company	83
VIII. SUBSIDIARY GUARANTEES	83
8.01 Subsidiary Guarantees	83
8.02 Guarantors May Consolidate, Etc., on Certain Terms	85
8.03 Release of Subsidiary Guarantees	86
8.04 Fraudulent Conveyances	86
8.05 Additional Subsidiary Guarantees	86
8.06 Execution and Delivery of Guaranty	87
IX.   SECURITY	87
9.01 Collateral Documents	87
9.02 Opinions of Counsel	88
9.03 Application of Proceeds of Collateral	88
9.04 Additional Collateral	88
9.05 Release of Collateral	90
9.06 Suits to Protect the Collateral	92
9.07 Certain TIA Requirements	92
9.08 Use of Collateral	92
X.     DISCHARGE AND DEFEASANCE OF INDENTURE	92
10.01 Legal Defeasance and Covenant Defeasance	92
10.02 Termination of the Obligations of the Company; Satisfaction and Discharge	94
10.03 Application of Trust Money	95
10.04 Repayment to Company	95
10.05 Reinstatement	95

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XI.   AMENDMENTS	96
11.01 Without Consent of Holders	96
11.02 With Consent of Holders	97
11.03 Compliance with Trust Indenture Act	98
11.04 Revocation and Effect of Consents	98
11.05 Notation on or Exchange of Securities	98
11.06 Trustee Protected	99
XII.  MISCELLANEOUS	99
12.01 Trust Indenture Act Controls	99
12.02 Notices	99
12.03 Communication by Holders with Other Holders	100
12.04 Certificate and Opinion as to Conditions Precedent	100
12.05 Statements Required in Certificate or Opinion	100
12.06 Rules by Trustee and Agents	101
12.07 Legal Holidays	101
12.08 Duplicate Originals	101
12.09 Governing Law	101
12.10 No Adverse Interpretation of Other Agreements	102
12.11 Successors	102
12.12 Separability	102
12.13 Table of Contents, Headings, etc.	102
12.14 Calculations in Respect of the Securities	102

Exhibit A	-	Form of Security
Exhibit B-1	-	Form of Private Placement Legend
Exhibit B-2	-	Form of Legend for Global Security
Exhibit B-3	-	Form of Original Issue Discount Legend
Exhibit C-1	-	Form of Transferor Certificate in Connection with Transfers Pursuant to Regulation S
Exhibit C-2	-	Form of Transferee Certificate in Connection with Transfers Pursuant to Regulation S
Exhibit D	-	Form of Transferor Certificate in Connection with Transfers Pursuant to Rule 144A

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INDENTURE, dated as of March 17, 2011, between K-V Pharmaceutical Company, a Delaware corporation (the “Company”), and Wilmington Trust FSB, as trustee (the “Trustee”).

Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the Holders of the Company’s 12% Senior Secured Notes due 2015 (the “Securities, which term shall include, without duplication, Pre-Exchange Securities and Post-Exchange Securities, each as defined herein).

I. DEFINITIONS AND INCORPORATION BY REFERENCE

1.01 DEFINITIONS.

“Acquired Indebtedness” means Indebtedness of a Person or any of its Subsidiaries that either (i) exists at the time such Person becomes a Restricted Subsidiary of the Company or at the time it merges or consolidates with or into the Company or any of its Restricted Subsidiaries or (ii) is assumed in connection with the acquisition, by the Company, of assets from such Person; provided, however, that “Acquired Indebtedness” shall not include any Indebtedness incurred by such Person in connection with, or in anticipation or contemplation of, such Person becoming a Restricted Subsidiary of the Company or such acquisition, merger or consolidation.

“Affiliate” means any person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company. For this purpose, “control” shall mean the power to direct the management and policies of a person through the ownership of securities, by contract or otherwise.

“Asset Acquisition” means: (i) an Investment by the Company or any of its Restricted Subsidiaries in any other Person, pursuant to which investment such Person shall become a Restricted Subsidiary of the Company or shall be merged with or into the Company or any of its Restricted Subsidiaries; or (ii) the acquisition, by the Company or any of its Restricted Subsidiaries, of the assets of any Person (other than a Restricted Subsidiary of the Company) which constitute all or substantially all of the assets of such Person or comprise any division or line of business of such Person or any other properties or assets of such Person, other than in the ordinary course of business, including in each case, acquisitions of licenses, patents and other rights (including new drug applications and abbreviated new drug applications) related to pharmaceuticals.

“Asset Sale” means any sale, issuance, conveyance, transfer, lease (other than operating leases), assignment or other transfer (collectively, a “sale”) for value by the Company or any of its Restricted Subsidiaries to any Person (other than the Company or a Restricted Subsidiary) of (i) any Capital Stock of any Restricted Subsidiary of the Company; or (ii) any other property or assets of the Company or any Restricted Subsidiary of the Company, in each case other than in the ordinary course of business; provided, however, that “Asset Sale” shall not include (1) a transaction or series of related transactions for which the Company or its Restricted Subsidiaries receive aggregate consideration of less than $1,000,000; (2) the sale, lease, conveyance,

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disposition or other transfer of all or substantially all of the assets of the Company as permitted under Section 5.01; (3) any Permitted Investment or any Restricted Payment permitted under Section 4.11; (4) the sale or disposition of cash or Cash Equivalents; (5) the grant of Liens not prohibited by this Indenture; (6) a sale of license rights, patents, or trademarks for use in any country other than the United States where sales under such license, patent, or trademark do not represent more than 2% of the consolidated sales of the Company and its Restricted Subsidiaries for the four most recent fiscal quarters for which financial statements are available as of the date of such sale; (7) the sale or transfer of Capital Stock of an Unrestricted Subsidiary; (8) any release of intangible claims or rights in connection with the loss or settlement of a bona fide lawsuit, dispute or controversy; (9) the replacement, sale or other disposition of used, worn out, obsolete or surplus equipment or inventory or equipment or inventory no longer used or useful in the business of such Person; (10) granting non-exclusive outbound licenses of intellectual property granted by the Company or any of its Restricted Subsidiaries in the ordinary course of business; (11) the sale of the Citibank Auction Rate Securities; and (12) the dissolution or winding up of any Subsidiary of the Company that accounts for less than 1% of the Company’s total assets and conducts no material operations on the Issue Date.

“Attributable Debt” means, with respect to a Sale and Leaseback Transaction, the present value (discounted at the rate of interest implicit in such transaction, determined in accordance with GAAP) of the total obligations of the lessee for net rental payments during the remaining term of the lease included in such Sale and Leaseback Transaction (including any period for which such lease has been extended or may, at the option of the lessor, be extended); provided, however, that if such Sale and Leaseback Transaction results in a Capitalized Lease Obligation, then the amount of Indebtedness represented thereby will be determined in accordance with the definition of Capitalized Lease Obligation.

“Board of Directors” means the Board of Directors of the Company or any committee thereof authorized to act for it hereunder.

“Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.

“Capital Stock” of any Person means any and all shares, interests, participations or other equivalents (however designated) of capital stock of such Person and all warrants or options to acquire such capital stock.

“Capitalized Lease Obligation” means, as to any Person, the obligations of such Person under a lease, which obligations are required, under GAAP, to be classified and accounted for as capital lease obligations. For purposes of this definition, the amount of such obligations at any date shall be the capitalized amount of such obligations at such date, determined in accordance with GAAP. For the avoidance of doubt, in determining whether a lease is a capitalized lease or an operating lease and whether interest expense

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exists, such determination shall be made in accordance with GAAP as in existence on the Issue Date.

“Cash Equivalents” means:

(1) marketable direct obligations issued by, or unconditionally guaranteed by, the U.S. 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 year from the date of acquisition thereof;

(2) marketable direct obligations issued by any state of the United States or any political subdivision of any such state or any public instrumentality thereof maturing within one year from the date of acquisition thereof and, at the time of acquisition, having one of the two highest ratings obtainable from either S&P or Moody’s;

(3) commercial paper maturing no more than one year from the date of creation thereof and, at the time of acquisition, having a rating of at least A-1 from S&P or at least P-1 from Moody’s;

(4) certificates of deposit or bankers’ acceptances maturing within one year from the date of acquisition thereof and issued by any bank organized under the laws of the United States or any state thereof or the District of Columbia or any U.S. branch of a foreign bank having at the date of acquisition thereof combined net capital and surplus of not less than $250,000,000;

(5) repurchase obligations with a term of not more than seven days for underlying securities of the types described in clause (1) above entered into with any bank meeting the qualifications specified in clause (4) above;

(6) investments in money market funds which invest substantially all their assets in securities of the types described in clauses (1) through (5) above; and

(7) Canadian dollars, Japanese yen, pounds sterling, Euros or, in the case of any Foreign Subsidiary that is a Restricted Subsidiary, such local currencies held by it from time to time in the ordinary course of business.

“Citibank Auction Rate Securities” means the auction rate securities that the Company has the option to purchase from Citibank, N.A. and affiliated entities as of the Issue Date for an aggregate purchase price not to exceed $72,200,000.

“Collateral” means all of the “Collateral” referred to in the Collateral Documents and all of the other property and assets that are or are required under the terms of this Indenture and the Collateral Documents to be subject to Liens in favor of the Collateral Agent for the benefit of the Secured Parties. Notwithstanding the foregoing, “Collateral” shall not include the Excluded Assets.

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“Collateral Agent” means the Trustee, in its capacity as collateral agent for the Secured Parties.

“Collateral Documents” means, collectively, (a) the Pledge and Security Agreement, (b) the Mortgages, (c) the Intellectual Property Security Agreements, (d) the Controlled Account Agreements, (e) the Interest Reserve Account Control Agreement and (f) any other documents providing for any Lien, pledge, encumbrance, mortgage or security interest on any or all of the Obligors’ assets or the ownership interests thereof in favor of the Collateral Agent for the benefit of the Secured Parties, in each case, as amended, restated, supplemented, replaced or otherwise modified from time to time in accordance with the terms thereof.

“Common Stock” of any Person means any class of common stock or an equivalent interest (including, but not limited to, a unit of beneficial interest in a trust or a limited partnership interest) of such Person.

“Company” means the party named as such above until a successor replaces it pursuant to Article V hereof and thereafter means the successor. The foregoing sentence shall likewise apply to any such successor or subsequent successor.

“Company Order” or “Company Request” means a written request or order signed on behalf of the Company by its Chairman of the Board, its Chief Executive Officer, its President, its Chief Operating Officer, its Chief Financial Officer, any Executive Vice President or any Senior Vice President and by its Treasurer or an Assistant Treasurer or its Secretary or an Assistant Secretary, and delivered to the Trustee.

“Confidential Information Memorandum” means the Company’s certain confidential memorandum, dated as of March 2, 2011, related to the offering of the Securities.

“Consolidated EBITDA” means, for any period, the sum, without duplication, and determined on a consolidated basis for the Company and its Restricted Subsidiaries in accordance with GAAP, of (i) Consolidated Net Income and (ii) to the extent such Consolidated Net Income has been reduced thereby, (a) all income taxes of the Company and its Restricted Subsidiaries paid or accrued in accordance with GAAP for such period; (b) Consolidated Interest Expense; (c) Consolidated Non-Cash Charges net of any non-cash items increasing such Consolidated Net Income for such period and (d) non-recurring losses net of any non-recurring gains.

“Consolidated Fixed Charge Coverage Ratio” means, as of any date (the “Transaction Date”), the ratio of (i) Consolidated EBITDA of the Company during the four consecutive full fiscal quarters (the “Four Quarter Period”) most recently ending on or prior to such Transaction Date and for which internal financial statements are available to (ii) Consolidated Fixed Charges of the Company for such Four Quarter Period; provided, however, that, for purposes of this definition of “Consolidated Fixed Charge Coverage Ratio”:

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(A) “Consolidated EBITDA” and “Consolidated Fixed Charges” shall be calculated after giving effect to each of the following events on a pro forma basis: (1) the incurrence or repayment, on or after the beginning of such Four Quarter Period and on or before such Transaction Date, of other Indebtedness of the Company or any of its Restricted Subsidiaries (and the application of the proceeds thereof) (excluding, for purposes of this clause (1) any such incurrence or repayment pursuant to revolving credit facilities), as if such incurrence or repayment (and the application of the proceeds thereof) occurred on the first day of such Four Quarter Period; and (2) any asset sale or other disposition or Asset Acquisition occurring on or after the beginning of such Four Quarter Period and on or before such Transaction Date, as if such asset sale or other disposition or Asset Acquisition (including the incurrence or assumption of, or liability for, any such Indebtedness or Acquired Indebtedness and also including any Consolidated EBITDA associated with such Asset Acquisition) occurred on the first day of such Four Quarter Period;

(B) if the Company or any of its Restricted Subsidiaries directly or indirectly guarantees Indebtedness of another Person, then, for purposes of clause (A) above, the Company will be deemed to have directly incurred or otherwise assumed such guaranteed Indebtedness;

(C) in calculating “Consolidated Fixed Charges” for purposes of determining the value of clause (ii) (but not for purposes of calculating the value of clause (i)) of this definition of “Consolidated Fixed Charge Coverage Ratio”: (1) interest on outstanding Indebtedness that is determined on a fluctuating basis as of the Transaction Date (including Indebtedness actually incurred on the Transaction Date) and that will continue to be so determined thereafter shall be deemed to have accrued at a fixed rate per annum equal to the rate of interest on such Indebtedness in effect on the Transaction Date; and (2) notwithstanding anything to the contrary in the immediately preceding clause (1), interest on Indebtedness determined on a fluctuating basis, to the extent such interest is covered by agreements relating to Interest Swap Obligations, shall be deemed to accrue at the rate per annum to be paid in cash resulting after giving effect to the operation of such agreements; and

(D) whenever pro forma effect is to be given to a transaction, the pro forma calculations shall be made in good faith and certified by the chief financial officer of the Company, and any such pro forma calculation may include, without duplication, adjustments appropriate to reflect operating expense reductions and other operating improvements or synergies that are based upon readily identifiable measures and are reasonably expected to be realized within 12 months following the date of determination.

“Consolidated Fixed Charges” means, for any period, the sum, without duplication, of (i) Consolidated Interest Expense; and (ii) the product of (x) the amount of all dividend payments on any series of Preferred Stock of the Company (other than dividends paid in Qualified Capital Stock) paid, accrued or scheduled to be paid or accrued during such period and (y) a fraction whose numerator is one and whose denominator is the excess of one over the then-current effective consolidated federal, state and local tax rate of such Person.

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“Consolidated Interest Expense” means, for any period, the aggregate (without duplication) of the interest expense of the Company and its Restricted Subsidiaries for such period, on a consolidated basis, as determined in accordance with GAAP, and including (i) all amortization or accretion of original issue discount; (ii) the interest component of Capitalized Lease Obligations paid, accrued or scheduled to be paid or accrued by the Company and its Restricted Subsidiaries during such period; and (iii) net cash costs under all Interest Swap Obligations (including, without limitation, amortization of fees); provided, however, that Consolidated Interest Expense shall not include (w) the amortization or write-off during such period of capitalized financing or debt issuance costs, (x) the payment of any penalty or premium associated with the early retirement, repayment or prepayment of Indebtedness in connection with the initial issuance of the Securities, (y) non-cash costs under any hedging arrangements or (z) interest expense recognized under GAAP in respect of obligations that are not Indebtedness under this Indenture solely pursuant to the last parenthetical in clause (b) of the definition of Indebtedness.

“Consolidated Net Income” means, for any period, the aggregate net income (or loss) of the Company and its Restricted Subsidiaries for such period on a consolidated basis, determined in accordance with GAAP; provided, however, that the following shall be excluded from Consolidated Net Income: (i) after-tax gains and losses from asset sales or abandonments or reserves relating thereto; (ii) after-tax items classified as extraordinary gains or losses; (iii) the net income (but not loss) of any Restricted Subsidiary of the Company to the extent that the declaration of dividends or similar distributions by such Restricted Subsidiary on such income is restricted by a contract, operation of law or otherwise; (iv) the net income of any Person, other than the Company or a Restricted Subsidiary of the Company, except to the extent of cash dividends or distributions paid to the Company or to a Restricted Subsidiary of the Company by such Person; (v) any restoration to income of any material contingency reserve, except to the extent that provision for such reserve was made out of Consolidated Net Income accrued at any time following the Issue Date; (vi) income or loss attributable to discontinued operations (including operations disposed of during such period whether or not such operations were classified as discontinued); (vii) the cumulative effect of a change in accounting principles; (viii) interest expense attributable to dividends on Qualified Capital Stock pursuant to GAAP; (ix) non-cash charges resulting from the impairment of intangible assets; (x) with respect to Section 4.11 only, in the case of a successor to the Company by consolidation or merger or as a transferee of the Company’s assets, any earnings of such successor prior to such consolidation, merger or transfer of assets; and (xi) non-cash compensation charges or other non-cash expenses or charges arising from the grant of or issuance or re-pricing of stock, stock options or other equity-based awards or any amendment, modification, substitution or change of any such stock, stock options or other equity-based awards.

“Consolidated Non-Cash Charges” means, for any period, the aggregate depreciation, amortization and other non-cash items and expenses (including asset impairments) of the Company and its Restricted Subsidiaries to the extent they reduce the Consolidated Net Income of the Company and its Restricted Subsidiaries for such period,

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determined on a consolidated basis in accordance with GAAP (excluding any such charge which requires an accrual of or a reserve for cash charges for any future period).

“Controlled Account Agreements” means those certain deposit and securities account control agreements executed and delivered pursuant to the Pledge and Security Agreement.

“Corporate Trust Office of the Trustee” shall be at the address of the Trustee specified in Section 12.02 or such other address as the Trustee may give notice of to the Company.

“Currency Agreement” means any foreign exchange contract, currency swap agreement or other similar agreement or arrangement designed to protect the Company or any of its Restricted Subsidiaries against fluctuations in currency values.

“Default” means any event which is, or after notice or passage of time or both would be, an Event of Default.

“Depositary” means The Depository Trust Company, its nominees and successors.

“Designated Assets” means the Company’s (1) generic pharmaceutical business, the assets of which are held within the Company’s wholly owned subsidiary, Nesher Pharmaceuticals, Inc. as well as in the Company and in its wholly owned subsidiary, DrugTech Corporation, and (2) branded prescription nutritional products.

“Designated Non-Cash Consideration” means non-cash consideration received by the Company or any of its Restricted Subsidiaries in connection with an Asset Sale as designated pursuant to an Officers’ Certificate. The aggregate fair market value of all Designated Non-Cash Consideration received by the Company after the Issue Date and then outstanding may not exceed $10,000,000.

“Disqualified Capital Stock” means that portion of any Capital Stock that, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable at the option of the holder thereof), or upon the happening of any event (other than an event that would constitute a Fundamental Change), (i) matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof (except in each case, upon the occurrence of a Fundamental Change), on or prior to 91 days after the final maturity date of the Securities for cash or (ii) is convertible into or exchangeable for debt securities of the Company or its Subsidiaries at any time prior to such maturity.

“Domestic Restricted Subsidiary” means, with respect to any Person, a Domestic Subsidiary of such Person that is a Restricted Subsidiary of such Person.

“Domestic Subsidiary” means, with respect to any Person, a Subsidiary of such Person that is not a Foreign Subsidiary of such Person.

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“Equity Offering” means (i) any underwritten public offering, for cash, of Common Stock of the Company pursuant to a registration statement filed under the Securities Act with the SEC (other than on Form S-8); or (ii) any private placement, for cash, of Common Stock of the Company to any Person; provided, however, that “Equity Offering” shall not include issuances of Common Stock upon exercise of options by employees of the Company or any of its Affiliates.

“Equity Offering Redemption Price” means, with respect to a Security to be redeemed by the Company in accordance with Section 3.01(F) and Article III, a cash amount equal to the product of (A) the Equity Offering Redemption Premium and (B) the principal amount of such Security.

“Equity Offering Redemption Premium” means an amount equal to the sum of (i) 100% and (ii) the Stated Interest Rate.

“Event of Loss” means, with respect to any property or asset (tangible or intangible, real or personal) constituting Collateral, any of the following:

(i) any loss, destruction or damage of such property or asset;

(ii) any institution of any proceeding for the condemnation or seizure of such property or asset or for the exercise of any right of eminent domain;

(iii) any actual condemnation, seizure or taking by exercise of the power of eminent domain or otherwise of such property or asset, or confiscation of such property or asset or the requisition of the use of such property or asset; or

(iv) any settlement in lieu of clauses (ii) or (iii) above.

“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC thereunder.

“Excluded Assets” means (i) the Company’s Disbursement Deposit Account (so long as no more than $5,000,000 in the aggregate is on deposit in such Disbursement Deposit Account (as defined below) at the close of each business day) or other deposit and/or securities accounts the balance of which consists exclusively of (A) withheld income taxes and federal, state or local employment taxes, (B) amounts required to be paid over in respect of employee benefits or payroll and (C) accounts where the maximum daily balance does not exceed $100,000 individually, or $500,000 in the aggregate for all deposit and/or securities accounts excluded from the Collateral pursuant to this clause (i) (C), (ii) real estate mortgaged in favor of Persons other than the Trustee or Collateral Agent on the Issue Date, but only for so long as such Liens (or Liens permitted under this Indenture to replace such initial Liens) remain outstanding, (iii) leasehold interests in real property, (iv) general intangibles or any lease, license, contract or other property as to which the grant of a security interest is (A) prohibited by the applicable governing agreement, or would give any other party thereto a right to consent or terminate its obligations thereunder, or would otherwise result in a default, breach or violation thereof, (B) would constitute or result in the abandonment, invalidation or

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unenforceability of any rights, title or interest of any obligor thereunder or (C) would constitute or result in the violation of any law, regulation permit, order or decree of any applicable governmental authority, (v) Capital Stock or other equity interests of any Foreign Subsidiary, so long as the aggregate of such Foreign Subsidiary’s and its Subsidiaries’ (x) consolidated income from operations (for the most recent fiscal year) and (y) consolidated total assets (as of the most recent balance sheet for the most recently completed fiscal quarter) are less than $1,000,000 and $3,000,000, respectively; provided that if consolidated income from operations or consolidated total assets are equal to or exceed $1,000,000 or $3,000,000, respectively, as aforesaid, no more than 65% of the Capital Stock or other equity interests of the applicable first-tier Foreign Subsidiary shall be pledged (to the extent such pledge is otherwise in compliance with the terms of the Collateral Documents), (vi) motor vehicles (where perfection is required by means of notation on certificates of title, or similar actions), (vii) equipment subject to, or secured by, a purchase money debt obligation and (viii) deposit and/or securities accounts of the Company established for the purpose of cash collateralizing letters of credits, so long as (x) the aggregate amount of cash or securities held in all such accounts is less than $2,500,000 and (y) a lien on such accounts is permitted pursuant to clause (16) of the definition of “Permitted Liens.” For the avoidance of doubt, Makena and the Company’s rights therein shall not be Collateral until such time as the Lien on such assets in favor of Hologic, Inc. granted pursuant to the Makena Agreement is terminated. As used in this definition, the term “Disbursement Deposit Account” means the Company’s “DDA” or disbursement account and all related lockbox, overnight and similar expense accounts that are linked to or feed to or are swept into the DDA account automatically or at regular times.

“Fair Market Value” means, with respect to any asset or property, the price which could be negotiated in an arm’s length, free market transaction, for cash, between a willing seller and a willing and able buyer, neither of whom is under undue pressure or compulsion to complete the transaction. With respect to determinations above $25,000,000, Fair Market Value shall be determined by the Board of Directors acting in good faith and shall be evidenced by a Board Resolution delivered to the Trustee; provided, however, that, except in the case of determining the Fair Market Value of assets in connection with an Asset Sale not involving the sale of assets to an Affiliate, with respect to determinations above $50,000,000, the Board of Directors’ determination must be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing. For the purposes of Section 4.20, Fair Market Value should be determined in the context of a Sale and Leaseback Transaction, including any customary discount in the purchase price established in such transactions.

“Foreign Subsidiary” means, with respect to any Person, any Subsidiary of such Person that is organized under the laws of any jurisdiction other than the United States, any state thereof or the District of Columbia.

“GAAP” means accounting principles generally accepted in the United States as in effect on the Issue Date.

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“Guarantors” means each of (1) the Domestic Restricted Subsidiaries of the Company as of the Issue Date (other than MECW); (2) any other Subsidiary of the Company that becomes a Guarantor pursuant to this Indenture; and (3) the respective successors and assigns of the foregoing; provided, however, that upon the release and discharge of any Person from its Subsidiary Guarantee in accordance with this Indenture, such Person shall cease to be a Guarantor.

“Holder” or “Securityholder” means a person in whose name a Security is registered on the Registrar’s books.

“Indebtedness” of a person means the principal of, premium, if any, and interest on, and all other obligations in respect of (a) all indebtedness of such person for borrowed money (including all indebtedness evidenced by notes, bonds, debentures or other securities), (b) all obligations (other than trade payables) incurred by such person in the acquisition (whether by way of purchase, merger, consolidation or otherwise and whether by such person or another person) of any business, real property or other assets to the extent such obligations would appear as a liability of such person on its financial statements prepared in accordance with GAAP (but not to the extent that such person has the right to settle any such obligation by issuing Capital Stock rather than making payments in cash), (c) all reimbursement obligations of such person with respect to letters of credit, bankers’ acceptances or similar facilities issued for the account of such person, (d) all Capitalized Lease Obligations of such person, (e) all net obligations of such person under interest rate swap, currency exchange or similar agreements, (f) all obligations and other liabilities, contingent or otherwise, under any capital lease or related document, including a purchase agreement, conditional sale or other title retention agreement, in connection with the lease of real property or improvements thereon (or any personal property included as part of any such capital lease) which provides that such person is contractually obligated to purchase or cause a third party to purchase the leased property or pay an agreed-upon residual value of the leased property, including such person’s obligations under such lease or related document to purchase or cause a third party to purchase such leased property or pay an agreed-upon residual value of the leased property to the lessor, (g) guarantees by such person of indebtedness described in clauses (a) through (f) of another person, and (h) all renewals, extensions, refundings, deferrals, restructurings, amendments and modifications of any indebtedness, obligation, guarantee or liability of the kind described in clauses (a) through (g).

“Indenture” means this Indenture as amended or supplemented from time to time.

“Independent Financial Advisor” means a nationally-recognized accounting, appraisal or investment banking firm that (1) does not, and whose directors, officers and employees or Affiliates do not, have a direct or indirect material financial interest in the Company or the transaction to which their opinion relates and (2) is otherwise independent and qualified to perform the task for which it is to be engaged in the judgment of the Board of Directors.

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“Intellectual Property Security Agreements” has the meaning defined in the Pledge and Security Agreement.

“Intercompany Indebtedness” means (i) any Indebtedness of the Company to any of its Subsidiaries and (ii) any Indebtedness of a Subsidiary of the Company to the Company or to another Subsidiary of the Company.

“Interest Reserve Account” means the Company’s securities account established on or prior to the Issue Date with Wilmington Trust FSB, as securities intermediary, in which the Company will deposit cash and Cash Equivalents in an amount sufficient to pay the first two scheduled payments of interest on the Securities.

“Interest Reserve Account Control Agreement” means that account control agreement, dated as of the Issue Date, between the Company, the Collateral Agent, and Wilmington Trust FSB, as securities intermediary, providing for the Collateral Agent’s Control (as defined in the Pledge and Security Agreement) over the Interest Reserve Account.

“Interest Swap Obligations” means the obligations of any reference Person pursuant to any arrangement with any other Person, whereby such reference Person is directly or indirectly entitled to receive, from time to time, periodic payments calculated by applying either a floating or a fixed rate of interest on a stated notional amount in exchange for periodic payments to such other Person calculated by applying a fixed or a floating rate of interest on the same notional amount. “Interest Swap Obligations” shall include, without limitation, interest rate swaps, caps, floors, collars and similar agreements.

“Investment” in any Person means any advance, loan (other than advances to customers in the ordinary course of business that are recorded as accounts receivable on the balance sheet of the lender) or other extensions of credit (including, without limitation, by way of guarantee or similar arrangement) or capital contribution to (by means of any transfer of cash or other property to others or any payment for property or services for the account or use of others, and excluding commission, travel and similar advances to officers and employees made in the ordinary course of business), or any purchase or acquisition for value of Capital Stock, Indebtedness or other similar instruments issued by such Person, in each case, in any other Person. If the Company or any of its Restricted Subsidiaries issues, sells or otherwise disposes of any Capital Stock of a Person that is a Restricted Subsidiary such that, after giving effect thereto, such Person is no longer a Restricted Subsidiary or otherwise such entity ceases to be a Restricted Subsidiary, then any Investment by the Company or any of its Restricted Subsidiaries in such Person remaining after giving effect thereto will be deemed to be a new Investment at such time. The acquisition by the Company or any of its Restricted Subsidiaries of a Person that holds an Investment in a third Person will be deemed to be an Investment by the Company or such Restricted Subsidiary in such third Person at such time. Except as otherwise provided for herein, the amount of an Investment shall be its Fair Market Value at the time the Investment is made and without giving effect to subsequent changes in value. For purposes of the definition of “Unrestricted Subsidiary,”

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the definition of “Restricted Payment” and Section 4.11: (i) “Investment” shall include the portion (proportionate to the Company’s equity interest in such Subsidiary) of the Fair Market Value of any Subsidiary of the Company at the time that such Subsidiary is designated an Unrestricted Subsidiary; provided, however, that upon a redesignation of such Subsidiary as a Restricted Subsidiary, the Company shall be deemed to continue to have a permanent “Investment” in an Unrestricted Subsidiary equal to an amount (if positive) equal to the excess, if any, of (A) the Company’s “Investment” in such Subsidiary at the time of such redesignation over (B) the portion (proportionate to the Company’s equity interest in such Subsidiary) of the Fair Market Value of such Subsidiary at the time of such redesignation; and (ii) any property transferred to or from an Unrestricted Subsidiary shall be valued at its Fair Market Value at the time of such transfer.

“Issue Date” means March 17, 2011.

“IRB Financing” means the obligations of the Borrower in connection with the Trust Indenture, dated as of December 1, 2005, by and among St. Louis County, Missouri and UMB Bank, N.A., as Trustee.

“Lien” means any lien, mortgage, deed of trust, pledge, security interest, charge or encumbrance of any kind (including, without limitation, any conditional sale or other title retention agreement, any lease in the nature thereof and any agreement to give any security interest).

“Makena” means Makena™ (hydroxyprogesterone caproate injection).

“Makena Agreement” means that certain asset purchase agreement, dated as of January 16, 2008, between the Company and Hologic, Inc., providing for the Company’s acquisition of Makena, as amended by the first amendment, dated as of January 8, 2010 and the second amendment, dated of February 4, 2011.

“Makena NDA Approval Date” means February 4, 2011.

“Maturity Date” means March 15, 2015.

“MECW” means MECW, LLC, a limited liability company formed and existing under the laws of the State of Delaware.

“MECW Mortgage Financing” means the obligations of MECW in connection with the Deed of Trust, Leasehold Deed of Trust, Security Agreement and Fixture Filing, dated as of March 23, 2006, by MECW as grantor to Steve Dieckmann, as Trustee for the benefit of LaSalle Bank National Association, as Beneficiary.

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

“Mortgages” means the mortgages, deeds of trust, deeds to secure Indebtedness or other similar documents granting Liens on real property owned by the Company or any

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Pledgor, as well as the other Collateral secured by and described in the mortgages, deeds of trust, deeds to secure Indebtedness or other similar documents.

“Net Cash Proceeds” means, with respect to any Asset Sale, the proceeds in the form of cash or Cash Equivalents (including, without limitation, payments in respect of deferred payment obligations, if received in the form of cash or Cash Equivalents (other than the portion of any such deferred payment constituting interest)) received by the Company or any of its Restricted Subsidiaries from such Asset Sale, net of: (1) reasonable out-of-pocket expenses and fees relating to such Asset Sale (including legal, accounting and investment banking fees and sales commissions); (2) all taxes and other costs and expenses actually paid or reasonably estimated in good faith by the Company to be payable in cash in connection with such Asset Sale; (3) repayment of Indebtedness that is secured by the property or assets that are the subject of such Asset Sale (other than property or assets constituting Collateral) and is required to be repaid in connection with such Asset Sale; and (4) appropriate amounts to be provided by the Company or any of its Restricted Subsidiaries, as the case may be, as a reserve, in accordance with GAAP, against any liabilities associated with such Asset Sale and retained by the Company or any of its Restricted Subsidiaries, as the case may be, after such Asset Sale (including, without limitation, pension and other post-employment benefit liabilities, liabilities related to environmental matters and liabilities under any indemnification obligations associated with such Asset Sale).

“Net Loss Proceeds” means the aggregate cash proceeds received by the Company or any Guarantor, and not required to be paid over by the Company or any Guarantor, in respect of any Event of Loss, including, without limitation, insurance proceeds, condemnation awards or damages awarded by any judgment, net of the direct cost in recovery of such Net Loss Proceeds (including, without limitation, legal, accounting, appraisal and insurance adjuster fees and any relocation expenses incurred as a result thereof) and any taxes paid or payable as a result thereof.

“Obligations” means all obligations for principal, premium, interest (including, with respect to the Securities, interest accruing thereon after the commencement of an insolvency, bankruptcy or similar proceeding, whether or not a claim for post-filing or post-petition interest is allowed in any such proceeding), penalties, fees, indemnifications, reimbursements, damages and other liabilities payable under the documentation governing any Indebtedness.

“Obligors” means the Company and the Guarantors.

“Officer” means the Chairman of the Board, the Chief Executive Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the General Counsel, any Executive Vice President, any Senior Vice President, the Treasurer or the Secretary of the Company.

“Officers’ Certificate” means a certificate signed by two Officers or by an Officer and an Assistant Treasurer or an Assistant Secretary of the Company.

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“Opinion of Counsel” means a written opinion from legal counsel reasonably acceptable to the Trustee who may be an employee of or counsel for the Company, or other counsel.

“Optional Redemption Premium” means an amount equal to the sum of (i) 100% and (ii) the product of (A) 75% and (B) the Stated Interest Rate.

“Optional Redemption Price” has the following meaning with respect to a Security to be redeemed by the Company in accordance with Section 3.01(D) and Article III: (i) if such Redemption Date is on or after March 15, 2013 and before March 15, 2014, a cash amount equal to the product of (A) the Optional Redemption Premium and (B) the principal amount of such Security; and (ii) if such Redemption Date is on or after March 15, 2014, an amount equal to 100% of the principal amount of such Security.

“Permitted Business” means any business that is reasonably related, complementary or incidental to the business in which the Company and its Restricted Subsidiaries are engaged on the Issue Date.

“Permitted Holders” means the lineal descendants of Victor M. Hermelin and their immediate families.

“Permitted Indebtedness” means, without duplication, each of the following:

(1) Indebtedness under the Securities issued on the Issue Date or in the Exchange Offer with respect to such Securities in an aggregate outstanding principal amount not to exceed $225,000,000 and the related Subsidiary Guarantees;

(2) [reserved];

(3) Indebtedness of the Company (other than Indebtedness described under clause (1) above) and its Restricted Subsidiaries outstanding on the Issue Date, after giving effect to the use of proceeds from the Securities;

(4) any Interest Swap Obligation of the Company or any Restricted Subsidiary of the Company covering Indebtedness of the Company or any of its Restricted Subsidiaries, provided that (x) such Interest Swap Obligation is entered into for the purpose of fixing or hedging interest rates with respect to any fixed or variable rate Indebtedness that is permitted by this Indenture to be outstanding and (y) the notional amount of such Interest Swap Obligation does not exceed the principal amount of Indebtedness to which such Interest Swap Obligation relates;

(5) Indebtedness under any Currency Agreement, provided that such Currency Agreement is not entered into for speculative purposes and, in the event such Currency Agreement relates to Indebtedness, such Currency Agreement does not increase the outstanding Indebtedness of the Company and its Restricted Subsidiaries other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable thereunder;

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(6) Intercompany Indebtedness of the Company or a Guarantor for so long as such Indebtedness is held by the Company or a Guarantor; provided, however, that if, as of any date, any Person other than the Company or a Guarantor owns or holds any such Indebtedness or holds a Lien in respect of any such Indebtedness, then, on such date, such Indebtedness shall cease to constitute Permitted Indebtedness pursuant to this clause (6);

(7) 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 that such Indebtedness is extinguished within five business days of incurrence;

(8) Indebtedness of the Company or any of its Restricted Subsidiaries in order to provide security for workers’ compensation claims, payment obligations in connection with self-insurance, deferred compensation or similar requirements in the ordinary course of business;

(9) obligations in respect of performance, bid, appeal and surety bonds, bankers’ acceptances, bank overdrafts (and letters of credit in respect thereof) and completion guarantees provided by the Company or any Restricted Subsidiary in the ordinary course of business;

(10) Indebtedness represented by Capitalized Lease Obligations and Purchase Money Indebtedness of the Company and its Restricted Subsidiaries and Refinancings thereof; provided, however, that the maximum amount that may be deemed to be Permitted Indebtedness pursuant to this clause (10) at any time shall not exceed $5,000,000;

(11) Refinancing Indebtedness;

(12) Indebtedness represented by guarantees, by any Restricted Subsidiary of the Company, of Indebtedness incurred by the Company or a Guarantor, provided the incurrence of such Indebtedness by the Company or such Guarantor is otherwise permitted by the terms of this Indenture;

(13) Indebtedness arising from agreements of the Company or a Restricted Subsidiary of the Company providing for indemnification, “earn-out” obligations, guarantees, adjustment of purchase price or similar obligations, in each case, incurred in connection with the disposition of any business, assets, rights or capital stock, other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or capital stock for the purpose of financing such acquisition; provided, however, such Indebtedness shall be deemed not to be Permitted Indebtedness pursuant to this clause (13) to the extent the maximum aggregate liability in respect of such Indebtedness exceeds the gross proceeds actually received by the Company or such Restricted Subsidiary in connection with such disposition;

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(14) Indebtedness in the form of contingent milestone liabilities incurred in connection with the acquisition of a product or product right so long as the Company’s pro forma Total Leverage Ratio is less than or equal to 3.0 to 1.0;

(15) Indebtedness of Foreign Subsidiaries in an amount not to exceed $2,500,000 in the aggregate at any time outstanding under this clause (15);

(16) additional Indebtedness of the Company or any Restricted Subsidiary not to exceed $500,000 in the aggregate at any time outstanding under this clause (16);

(17) Indebtedness in connection with the dissolution of Ethex Corporation in an amount not to exceed $1,000,000 in the aggregate; and

(18) Indebtedness consisting of financing premiums with respect to insurance policies of the Company and its Restricted Subsidiaries.

For purposes of determining compliance with Section 4.13, (a) the outstanding principal amount of any item of Indebtedness shall be counted only once; and (b) in the event that an item of Indebtedness meets the criteria of more than one of the categories of Permitted Indebtedness described in clauses (1) through (18) above or is entitled to be incurred pursuant to the proviso to Section 4.13(A), the Company shall, in its sole discretion, classify (or later reclassify) such item of Indebtedness in any manner in one or more categories that complies with Section 4.13. Accrual of interest, accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, and the payment of dividends on Disqualified Capital Stock in the form of additional shares of the same class of Disqualified Capital Stock or changes in the amount of Indebtedness under GAAP with respect to an acquisition of rights covered by clause (14), will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Capital Stock for purposes of Section 4.13.

“Permitted Investments” means:

(1) Investments by the Company or any of its Restricted Subsidiaries in any Person that is or will become, immediately after such Investment, a Guarantor or that will merge or consolidate with or into the Company or a Guarantor, or that transfers or conveys all or substantially all of its assets to the Company or a Guarantor;

(2) Investments in the Company by any of its Restricted Subsidiaries, provided that any Indebtedness evidencing such Investment is unsecured and subordinated to the Company’s Obligations under the Notes and this Indenture;

(3) Investments in cash and Cash Equivalents;

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(4) Currency Agreements and Interest Swap Obligations, in each case, entered into not for speculative purposes and otherwise in compliance with this Indenture;

(5) Investments in the Securities;

(6) Investments in securities of trade creditors or customers received pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of such trade creditors or customers in exchange for claims against such trade creditors or customers;

(7) Investments made by the Company or its Restricted Subsidiaries as a result of consideration received in connection with an asset sale made in compliance with Section 4.15;

(8) Investments in existence on the Issue Date and any renewals, replacements, refinancings or refundings thereof that do not increase the amount of such Investments;

(9) loans and advances (including, without limitation, advances for travel and moving expenses) to employees, officers and directors of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of $2,500,000 at any one time outstanding;

(10) advances to suppliers and customers in the ordinary course of business;

(11) Investments in Subsidiaries that are not Guarantors in an amount not to exceed $2,500,000 in the aggregate at any time;

(12) Investments constituting the Citibank Auction Rate Securities, so long as (A) prior to the purchase of such Investments, the Company has received a binding commitment from a willing purchaser to purchase such Investments at a price higher than the purchase price paid by the Company or its Restricted Subsidiaries for such Investments and (B) such Investments are sold substantially concurrently with the purchase thereof; and

(13) Investments of a Restricted Subsidiary that was acquired after the Issue Date or of any entity merged with or into the Company or a Restricted Subsidiary, so long as the Investment was not made in anticipation of the acquisition or merger and such Investment does not constitute a majority of the assets acquired.

“Permitted Liens” means the following:

(1) Liens for taxes, assessments or governmental charges or claims that either are not delinquent or are contested in good faith by appropriate proceedings, provided that the Company or its Restricted Subsidiaries shall have

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set aside on its books such reserves, as to such taxes, assessments or governmental charges or claims, as may be required pursuant to GAAP;

(2) Liens of landlords, banks (and rights of set-off), carriers, warehousemen, mechanics, suppliers, materialmen, repairmen and other Liens imposed by law or pursuant to customary reservations or retentions of title incurred in the ordinary course of business for sums not yet delinquent or being contested in good faith, if such reserve or other appropriate provision, if any, as shall be required by GAAP, shall have been made in respect thereof;

(3) Liens incurred or pledges or deposits made in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security, including any Lien securing letters of credit issued in the ordinary course of business consistent with past practice in connection therewith, or Liens to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts, performance and return-of-money bonds and other similar obligations (exclusive of obligations for the payment of borrowed money);

(4) any judgment Lien not giving rise to an Event of Default;

(5) easements, rights-of-way, zoning restrictions and other similar charges or encumbrances and other minor defects or irregularities in title in respect of real property not interfering in any material respect with the ordinary conduct of the business of the Company or any of its Restricted Subsidiaries;

(6) any interest or title of a lessor under any Capitalized Lease Obligation permitted pursuant to clause (10) of the definition of “Permitted Indebtedness,” provided that such Liens do not extend to any property or assets which is not leased property subject to such Capitalized Lease Obligation (other than other property that is subject to a separate Capitalized Lease Obligation with the same lessor or any of its affiliates pursuant to clause (10) of the definition of “Permitted Indebtedness”);

(7) Liens securing Purchase Money Indebtedness permitted pursuant to clause (10) of the definition of “Permitted Indebtedness,” provided that (i) such Indebtedness does not exceed the cost of the property or assets acquired, together, in the case of real property, with the cost of the construction thereof and improvements thereto, and is not secured by a Lien on any property or assets of the Company or any Restricted Subsidiary of the Company other than such property or assets so acquired or constructed and improvements thereto and (ii) the Lien securing such Indebtedness is created within 180 days of such acquisition or construction or, in the case of a refinancing of any Purchase Money Indebtedness, within 180 days of such refinancing;

(8) Liens upon specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of bankers’

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acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;

(9) Liens securing reimbursement obligations with respect to commercial letters of credit which encumber documents and other property relating to such letters of credit and products and proceeds thereof;

(10) Liens encumbering deposits made to secure obligations arising from statutory, regulatory, contractual, or warranty requirements of the Company or any of its Restricted Subsidiaries, including rights of offset and set-off;

(11) Liens securing Interest Swap Obligations that relate to Indebtedness that is otherwise permitted under this Indenture;

(12) Liens securing Indebtedness under Currency Agreements that are permitted under this Indenture;

(13) Liens securing Acquired Indebtedness incurred in accordance with Section 4.13, provided that (i) such Liens secured such Acquired Indebtedness at the time of and prior to the incurrence of such Acquired Indebtedness by the Company or a Restricted Subsidiary of the Company and were not granted in connection with, or in anticipation of, the incurrence of such Acquired Indebtedness by the Company or a Restricted Subsidiary of the Company; and (ii) such Liens do not extend to or cover any property or assets of the Company or any of its Restricted Subsidiaries other than the property or assets that secured the Acquired Indebtedness prior to the time such Indebtedness became Acquired Indebtedness of the Company or any of its a Restricted Subsidiaries and are no more favorable to the lienholders than those securing the Acquired Indebtedness prior to the incurrence of such Acquired Indebtedness by the Company or such Restricted Subsidiary;

(14) Liens existing as of the Issue Date and securing Indebtedness permitted to be outstanding under clause (3) of the definition of the term “Permitted Indebtedness,” to the extent and in the manner such Liens are in effect on the Issue Date and any renewals and extensions thereof so long as the aggregate principal amount of the Indebtedness being secured does not increase (plus accrued interest and premium in respect thereof) and the Lien does not extend to any additional assets;

(15) Liens securing the Securities and all other Obligations under this Indenture, the Collateral Documents and the Subsidiary Guarantees;

(16) Liens on up to $2,500,000 of cash in deposit accounts with financial institutions established for the purpose of cash collateralizing letters of credit;

(17) any Lien that (i) secures Refinancing Indebtedness that is incurred to Refinance any Indebtedness that is secured by a Lien that is a Permitted Lien

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and that was incurred in accordance with Section 4.13; (ii) is no less favorable to the Holders and is not more favorable to the lienholders with respect to such Lien than the Liens in respect of the Indebtedness being Refinanced; and (iii) does not extend to or cover any property or assets of the Company or any of its Restricted Subsidiaries not securing the Indebtedness so Refinanced;

(18) Liens on property of a Person existing at the time such Person is merged with or into or consolidated with the Company or any of its Restricted Subsidiaries, provided that such Liens were not incurred in contemplation of such merger or consolidation and do not extend to any assets other than those of the Person merged into or consolidated with the Company or such Restricted Subsidiary;

(19) Liens on assets of a Restricted Subsidiary of the Company that is not a Guarantor to secure Indebtedness of such Restricted Subsidiary that is otherwise permitted under this Indenture;

(20) Liens arising from filing UCC financing statements regarding leases;

(21) Liens securing Indebtedness incurred pursuant to clause (14) of the definition of Permitted Indebtedness (including related Indebtedness permitted by the last sentence of the definition of “Indebtedness”); provided that any Lien granted pursuant to this clause (21) shall be permitted (i) only on the acquired asset that is subject to future milestone payments and (ii) only during such time as there remains a potential obligation to make one or more such milestone payments;

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

(23) non-exclusive Licenses of intellectual property granted by the Company or any Restricted Subsidiary in the ordinary course of business;

(24) interests of title of lessor or sublessor under any lease of real property;

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

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

(27) other Liens securing Indebtedness in an aggregate amount not exceeding $1,000,000 outstanding at any time.

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“Person” or “person” means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization or government or other agency or political subdivision thereof.

“Pledge and Security Agreement” means the Pledge and Security Agreement in between the Pledgors and the Collateral Agent dated as of the Issue Date, as amended, restated, modified or supplemented from time to time in accordance with this Indenture.

“Pledgors” has the meaning defined in the Pledge and Security Agreement.

“Post-Exchange Securities” means Securities issued pursuant to Sections 2.20 and 4.22, which Post-Exchange Securities shall (1) be substantially in the form set forth in Exhibit A but which shall (a) not bear the Private Placement Legend and (b) have appropriate changes made to the “Form of Assignment” on the reverse thereof; and (2) bear interest in the same manner as, and at the same rate and on the same dates (and with the same record dates) as that under, the Pre-Exchange Securities, except that, for purposes of determining the amount of the first interest payment on each Post-Exchange Security, and the Person to whom it must be paid, such Post-Exchange Security and the Pre-Exchange Security exchanged for such Post Exchange Security shall be deemed to be one and the same Security.

“Pre-Exchange Securities” means Securities issued on the Issue Date, which Securities shall, as provided in Section 2.01, be substantially in the form set forth in Exhibit A and which shall initially bear the Private Placement Legend, except to the extent otherwise provided herein.

“Preferred Stock” means, with respect to any Person, any Capital Stock of any class or classes (however designated) which is preferred as to the payment of dividends or distributions, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such Person, over the Capital Stock of any other class in such Person.

“Provisional Redemption Discount Rate” means a rate, per annum, equal to the sum of the Treasury Rate and 50 basis points.

“Provisional Redemption Make-Whole Amount” means, with respect to a Security to be redeemed by the Company on a Redemption Date in accordance with Section 3.01(E), a cash amount equal to sum of the present value, discounted to such Redemption Date using an annual discount rate equal to the Provisional Redemption Discount Rate, of each the following: (i) a cash payment to be made on March 15, 2013 in amount equal to the product of (A) the Optional Redemption Premium and (B) the principal amount of such Security; and (ii) each interest payment on such Security that is scheduled to be made on or after such Redemption Date and on or before March 15, 2013; provided, however, that (1) if such Redemption Date is after a record date for the payment of an installment of interest and on or before the related interest payment date, then the first scheduled interest payment on such Security on or after such Redemption Date shall be deemed, for purposes of clause (ii) above, to be zero (it being understood

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that such scheduled interest payment shall be made in accordance with Section 3.01(G)); and (2) if such Redemption Date does not occur during the period that begins on the day immediately following a record date for the payment of an installment of interest and ends on, and includes, the related interest payment date, then the amount of the first scheduled interest payment on such Security on or after such Redemption Date shall be deemed, for purposes of clause (ii) above, to be a cash amount equal to the excess of the actual scheduled interest payment over the amount of unpaid interest that has accrued to, but excluding, such Redemption Date (it being understood that such amount of accrued and unpaid interest shall be paid, pursuant to Section 3.01(E), to the Holder submitting such Security for Redemption).

“Provisional Redemption Price” means, with respect to a Security to be redeemed by the Company in accordance with Section 3.01(E), a cash amount equal to the greater of (i) 101% of the principal amount of such Security; and (ii) the Provisional Redemption Make-Whole Amount for such Security.

“Purchase Money Indebtedness” means Indebtedness of the Company and its Restricted Subsidiaries incurred for the purpose of financing all or any part of the purchase price, or the cost of installation, construction or improvement, of property or equipment, provided, that the aggregate principal amount of such Indebtedness does not exceed the lesser of (i) the Fair Market Value of such property or equipment and (ii) such purchase price or cost.

“Purchase Notice” means a Purchase Notice in the form set forth in the Securities.

“QIB” means a “qualified institutional buyer” (as defined in Rule 144A).

“QIB Global Security” means a Global Security in registered form representing a Security sold pursuant to Rule 144A.

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

“Redemption Date” means the date specified for Redemption of the Securities in accordance with the terms of the Securities and this Indenture.

“Redemption Price” means, (i) with respect to a Security to be redeemed by the Company pursuant to Section 3.01(D), the Optional Redemption Price for such Security; (ii) with respect to a Security to be redeemed by the Company pursuant to Section 3.01(E), the Provisional Redemption Price for such Security; and (iii) with respect to a Security to be redeemed by the Company pursuant to Section 3.01(F), the Equity Offering Redemption Price for such Security.

“Refinance” means, in respect of any security or Indebtedness, to refinance, extend, renew, refund, repay, prepay, redeem, defease or retire, or to issue a security or Indebtedness in exchange or replacement for, such security or Indebtedness in whole or in part. “Refinanced” and “Refinancing” shall have correlative meanings.

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“Refinancing Indebtedness” means Indebtedness that (i) is incurred by the Company or any Restricted Subsidiary to Refinance Indebtedness incurred in accordance with Section 4.13 (other than Permitted Indebtedness) or clause (1), (3) or (11) of the definition of Permitted Indebtedness; (ii) does not have an aggregate principal amount (or, if such Indebtedness is issued with original issue discount, an aggregate offering price) that is greater than the sum of (x) the aggregate principal amount of such Indebtedness being Refinanced (or, if such Indebtedness being Refinanced is issued with original issue discount, the aggregate accreted value) as of the date of such Refinancing plus (y) the amount of fees, expenses, premiums, defeasance costs and accrued and unpaid interest relating to the Refinancing of such Indebtedness being Refinanced; (iii) does not have (x) a Weighted Average Life to Maturity at the time such Refinancing Indebtedness is incurred that is less than the Weighted Average Life to Maturity of such Indebtedness being Refinanced or (y) a stated final maturity that is earlier than the final maturity of such Indebtedness being Refinanced; (iv) is not secured by any Lien that that did not, immediately prior to such Refinancing, secure such Indebtedness being Refinanced; (v) (in the event the Indebtedness being Refinanced is subordinate or junior by its terms to the Securities) is, by its terms, subordinate to the Securities at least to the same extent and in the same manner as such Indebtedness being Refinanced; and (vi) (in the event the Indebtedness being Refinanced was incurred by a Restricted Subsidiary that is not a Guarantor) is incurred by a Restricted Subsidiary that is not a Guarantor.

“Regulation D” means Regulation D under the Securities Act.

“Regulation S” means Regulation S under the Securities Act.

“Regulation S Global Security” means a Global Security in registered form representing a Security sold in reliance on Regulation S under the Securities Act.

“Responsible Officer” shall mean, when used with respect to the Trustee, any officer within the corporate trust department of the Trustee, including any vice president, assistant vice president, assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee who customarily performs functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such person’s knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.

“Restricted Payment” means each of the following:

(1) the payment of any dividend or making of any distribution (other than dividends or distributions payable in Qualified Capital Stock of the Company and dividends and distributions payable to the Company or any of its Restricted Subsidiaries) on or in respect of shares of Capital Stock of the Company or its Restricted Subsidiaries;

(2) the purchase, redemption or other acquisition or retirement, for value, of any Capital Stock issued by the Company or any of its Restricted

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Subsidiaries (other than dividends paid by a Restricted Subsidiary on a pro rata basis);

(3) the making of any principal payment on, or the purchase, defeasance, redemption, prepayment, decrease or other acquisition or retirement, for value, more than one year prior to any scheduled final maturity, scheduled repayment or scheduled sinking fund payment, of any Indebtedness of the Company or any Guarantor that (i) is senior unsecured Indebtedness or Indebtedness secured by a Lien on the Collateral that is junior to the Lien securing the Obligations or (ii) is subordinate or junior in right of payment to the Securities or a Subsidiary Guarantee; and

(4) the making of any Investment (other than a Permitted Investment).

“Restricted Security” means a Security that constitutes a “restricted security” within the meaning of Rule 144(a)(3) under the Securities Act; provided, however, that the Trustee shall be entitled to request and conclusively rely on an Opinion of Counsel with respect to whether any Security constitutes a Restricted Security.

“Restricted Subsidiary” of any Person means any Subsidiary of such Person which, at the time of determination, is not an Unrestricted Subsidiary.

“Rule 144A” means Rule 144A under the Securities Act.

“Sale and Leaseback Transaction” means any direct or indirect arrangement with any Person or to which any such Person is a party, providing for the leasing to the Company or any of its Restricted Subsidiaries of any property, whether owned by the Company or any of its Restricted Subsidiaries on the Issue Date or later acquired, which has been or is to be sold or transferred by the Company or such Restricted Subsidiary to such Person or to any other Person from whom funds have been or are to be advanced by such Person on the security of such Property other than (i) the obligations of the Company under the IRB Financing and (ii) the obligations of MECW under the MECW Mortgage Financing.

“S&P” means Standard & Poor’s Ratings Group.

“SEC” means the Securities and Exchange Commission.

“Secured Parties” means each Securityholder, the Trustee and the Collateral Agent.

“Securities” means the 12% Senior Secured Notes due 2015 issued by the Company pursuant to this Indenture.

“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations of the SEC thereunder.

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“Securities Agent” means any Registrar, Paying Agent or co-Registrar or co-agent.

“Significant Subsidiary” with respect to any person means any subsidiary of such person that constitutes a “significant subsidiary” within the meaning of Rule 1-02(w) of Regulation S-X under the Securities Act, as such regulation is in effect on the Issue Date.

“Stated Interest Rate” means a rate, per annum, equal to 12%.

“Subsidiary” means, with respect to a reference Person, (i) a corporation a majority of whose Capital Stock with voting power, under ordinary circumstances, to elect directors is at the time, directly or indirectly, owned by such reference Person, by one or more subsidiaries of such reference Person or by such reference Person and one or more of its subsidiaries or (ii) any other person (other than a corporation) in which such reference Person, one or more of its subsidiaries, or such reference Person and one or more of its subsidiaries, directly or indirectly, at the date of determination thereof, own at least a majority ownership interest.

“TIA” means the Trust Indenture Act of 1939 (15 U.S. Code §§ 77aaa-77bbbb) as amended and in effect from time to time.

“Total Leverage Ratio” means, with respect to any Person, at any date the ratio of (i) Indebtedness of such Person and its Restricted Subsidiaries as of the last day of the fiscal quarter for which internal financial statements are available immediately preceding the date of calculation, determined on a consolidated basis in accordance with GAAP to (ii) Consolidated EBITDA of such Person for the four full fiscal quarters for which internal financial statements are available immediately preceding the date of calculation. For purposes of calculating the Total Leverage Ratio for any period, the amount of Indebtedness of any Person represented by outstanding letters of credit shall be excluded from the amount of Debt except to the extent such letter of credit has been drawn and not reimbursed by such Person. The Total Leverage Ratio shall be calculated in a manner consistent with the pro forma provisions (to the extent applicable) of the definition of “Fixed Charge Coverage Ratio.”

“Treasury Rate” means, as of any Redemption Date on or before March 15, 2013, the yield to maturity, as of such Redemption Date, of U.S. Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) that has become publicly available at least two Business Days before such redemption date (or, if such statistical release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from, and including, such Redemption Date to, but excluding, March 15, 2013; provided, however, that if such period is not equal to the constant maturity of the U.S. Treasury security for which a weekly average yield is given, then the Treasury Rate shall be obtained by linear interpolation (calculated to one-twelfth of a year) from the weekly average yields of U.S. Treasury securities for which such yields are given, except that if

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such period is less than one year, then the weekly average yield on actually traded U.S. Treasury securities adjusted to a constant maturity of one year shall be used.

“Trustee” means the party named as such in this Indenture until a successor replaces it in accordance with the provisions hereof and thereafter means the successor.

“UCC” means the Uniform Commercial Code as in effect from time to time in the State of New York; provided, however, that, at any time, if by reason of mandatory provisions of law, any or all of the perfection or priority of the Collateral Agent’s security interest in any item or portion of the Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than that of the State of New York, the term “UCC” shall mean the Uniform Commercial Code as in effect, at such time, in such other jurisdiction for purposes of the provisions hereof relating to such perfection or priority and for purposes of definitions relating to such provisions.

“Unrestricted Subsidiary” of any Person means (1) any Subsidiary of such Person that at the time of determination shall be or continue to be designated an Unrestricted Subsidiary by the board of directors of such Person in the manner provided below, (2) any Subsidiary of an Unrestricted Subsidiary, and (3) Ethex Corporation. The Board of Directors may designate any Subsidiary (including any Restricted Subsidiary or newly acquired or newly formed Subsidiary) of the Company to be an Unrestricted Subsidiary, unless such Subsidiary owns any Capital Stock of, or owns or holds any Lien on any property of, the Company or any other Subsidiary of the Company that is not a Subsidiary of the Subsidiary to be so designated; provided, however, that the Company shall not be permitted to make any such designation unless (i) the Company provides the Trustee with a copy of the Board Resolution giving effect to such designation and an Officers’ Certificate certifying that such designation complied with this sentence and with Section 4.11; (ii) none of the Subsidiaries to be so designated or any of their respective Subsidiaries has, at the time of designation, and none will thereafter, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable with respect to any Indebtedness pursuant to which the lender of such Indebtedness has recourse to any of the assets of the Company or any of its Restricted Subsidiaries; (iii) immediately after giving effect to such designation, the Company is able to incur at least one dollar of additional Indebtedness (other than Permitted Indebtedness) in compliance with the proviso to Section 4.13(A); and (iv) immediately before and immediately after giving effect to such designation, no Default or Event of Default shall have occurred and be continuing (including as a result of the Company’s deemed Investment in such Unrestricted Subsidiary in accordance with the definition of “Investment”).

“U.S. Government Obligations” means non-callable direct obligations of, and non-callable obligations guaranteed by, the United States for the payment of which the full faith and credit of the United States is pledged.

“U.S. Legal Tender” means such coin or currency of the United States which, as at the time of payment, shall be immediately available legal tender for the payment of public and private debts.

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“Weighted Average Life to Maturity” means, with respect to any Indebtedness at any date, a number of years equal to a fraction (i) whose numerator is the sum, for each then-remaining installment, sinking fund, serial maturity or other required payment of principal (including, without limitation, payment at final maturity) in respect of such Indebtedness, of the product of (x) the amount of such installment or payment and (y) the number of years (calculated to the nearest one-twelfth) between such date and the due date of such installment or payment; and (ii) whose denominator is the aggregate principal amount of such Indebtedness outstanding as of such date.

“Voting Stock” of any Person means the total voting power of all classes of the Capital Stock of such Person entitled to vote generally in the election of directors of such Person.

1.02 OTHER DEFINITIONS.

Term	Defined in Section
“Affiliate Transaction”		4.12
“Asset Sale Notice”		3.09
“Asset Sale Repurchase Date”		3.09
“Asset Sale Repurchase Price”		3.09
“Asset Sale Repurchase Right”		3.09
“Automatic Exchange”		2.18
“Automatic Exchange Notice”		2.18
“Bankruptcy Law”		6.01
“Business Day”		12.07
“Covenant Defeasance”		10.01
“Custodian”		6.01
“Event of Default”		6.01
“Exchange Offer”		4.22
“Exchange Offer Registration Statement”		4.22
“Fundamental Change”		3.08
“Fundamental Change Notice”		3.08
“Fundamental Change Repurchase Date”		3.08
“Fundamental Change Repurchase Price”		3.08
“Fundamental Change Repurchase Right”		3.08
“Global Security”		2.01
“Legal Defeasance”		10.01
“Legal Holiday”		12.07
“Maximum Dollar Amount for Repurchase Upon Asset Sale”		3.09
“Notice of Default”		6.01
“Participants”		2.15
“Paying Agent”		2.03
“Physical Securities”		2.01
“Premises”		9.03
“Private Placement Legend”		2.17

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“Redemption”	3.01
“Reference Date”	4.11
“Registrar”	2.03
“Registration Default”	4.22
“Repurchase Upon Asset Sale”	3.01
“Repurchase Upon Fundamental Change”	3.01
“Required Offer Amount”	4.15
“Resale Restriction Termination Date”	2.17
“Restricted Global Security”	2.18
“Special Interest”	4.22
“Subsidiary Guarantee”	8.01
“Trust Funds”	10.01
“Unrestricted Global Security”	2.18

1.03 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.

Only at all times after the effectiveness of the Exchange Offer Registration Statement, will this Indenture be subject to the mandatory provisions of the TIA, which are incorporated by reference in and made a part of this Indenture. At all times, whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture.

The following TIA terms used in this Indenture have the following meanings:

“indenture securities” means the Securities;

“indenture security holder” means a Securityholder or a Holder;

“indenture to be qualified” means this Indenture;

“indenture trustee” or “institutional trustee” means the Trustee; and

“obligor” on the indenture securities means the Company and each Guarantor, or any successor thereto.

All other terms used in this Indenture that are defined by the TIA, defined by the TIA by reference to another statute or defined by SEC rule under the TIA and not otherwise defined herein have the meanings so assigned to them.

1.04 RULES OF CONSTRUCTION.

Unless the context otherwise requires:

(i) a term has the meaning assigned to it;

(ii) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;

(iii) “including” means “including without limitation”;

(iv) words in the singular include the plural and in the plural include the singular;

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(v) “herein,” “hereof” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision of this Indenture;

(vi) references to currency shall mean the lawful currency of the United States of America, unless the context requires otherwise; and

(vii) the phrase “in writing” as used herein shall be deemed to include .pdf attachments and other electronic means of transmission, unless the context requires otherwise.

II. THE SECURITIES

2.01 FORM AND DATING.

The Securities and the Trustee’s certificate of authentication shall be substantially in the form set forth in Exhibit A, which is incorporated in and forms a part of this Indenture. The Securities may have notations, legends or endorsements required by law, stock exchange rule or usage. Each Security shall be dated the date of its authentication.

Securities offered and sold in reliance on Regulation D shall be issued initially in the form of Global Securities, substantially in the form set forth in Exhibit A (the “Global Security”), deposited with the Trustee, as custodian for the Depositary, duly executed by the Company and authenticated by the Trustee as hereinafter provided and bearing the legends set forth in Exhibits B-1, B-2 and B-3. The aggregate principal amount of the Global Security may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for the Depositary, as hereinafter provided; provided, that, except as permitted by Section 2.07, in no event shall the aggregate principal amount of the Global Security or Securities exceed $225,000,000.

Securities issued in exchange for interests in a Global Security pursuant to Section 2.15 may be issued in the form of permanent certificated Securities in registered form in substantially the form set forth in Exhibit A (the “Physical Securities”) and, if applicable, bearing any legends required by Section 2.17.

2.02 EXECUTION AND AUTHENTICATION.

One duly authorized Officer shall sign the Securities for the Company by manual or facsimile signature.

A Security’s validity shall not be affected by the failure of an Officer whose signature is on such Security to hold, at the time the Security is authenticated, the same office at the Company.

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A Security shall not be valid until authenticated by the manual signature of the Trustee. The signature shall be conclusive evidence that the Security has been authenticated under this Indenture.

Upon a Company Order, the Trustee shall authenticate Securities for original issue in the aggregate principal amount of $225,000,000 and such additional principal amount, if any, as shall be determined pursuant to the next sentence of this Section 2.02. The aggregate principal amount of Securities outstanding at any time may not exceed $225,000,000 except as provided in Section 2.07.

Upon a Company Order, the Trustee shall authenticate Securities not bearing the Private Placement Legend to be issued to the transferee when sold pursuant to an effective registration statement under the Securities Act as set forth in Section 2.16(C).

The Trustee shall act as the initial authenticating agent. Thereafter, the Trustee may appoint an authenticating agent acceptable to the Company to authenticate Securities. An authenticating agent may authenticate Securities whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such authenticating agent. An authenticating agent has the same rights as a Securities Agent to deal with the Company and its Affiliates.

If a Company Order pursuant to this Section 2.02 has been, or simultaneously is, delivered, any instructions by the Company to the Trustee with respect to endorsement, delivery or redelivery of a Security issued in global form shall be in writing but need not comply with Section 12.04 hereof and need not be accompanied by an Opinion of Counsel.

The Securities shall be issuable only in registered form without interest coupons and only in minimum denominations of $2,000 principal amount and any integral multiples of $1,000 in excess thereof.

2.03 REGISTRAR, AND PAYING AGENT.

The Company shall maintain an office or agency where Securities may be presented for registration of transfer or for exchange (“Registrar”) and an office or agency where Securities may be presented for payment (“Paying Agent”). The Registrar shall keep a register of the Securities and of their transfer and exchange. The Company may appoint or change one or more co-Registrars and one or more additional paying agents without notice and may act in any such capacity on its own behalf. The term “Registrar” includes any co-Registrar; the term “Paying Agent” includes any additional paying agent.

The Company shall enter into an appropriate agency agreement with any Securities Agent not a party to this Indenture. The agreement shall implement the provisions of this Indenture that relate to such Securities Agent. The Company shall notify the Trustee of the name and address of any Securities Agent not a party to this Indenture. If the Company fails to maintain a Registrar or Paying Agent, the Trustee shall act as such.

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The Company initially appoints the Trustee as Paying Agent and Registrar.

2.04 PAYING AGENT TO HOLD MONEY IN TRUST.

Each Paying Agent shall hold in trust for the benefit of the Securityholders or the Trustee all moneys held by the Paying Agent for the payment of the Securities, and shall notify the Trustee of any Default by the Company in making any such payment. While any such Default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent shall have no further liability for such money. If the Company acts as Paying Agent, it shall segregate and hold as a separate trust fund all money held by it as Paying Agent.

2.05 SECURITYHOLDER LISTS.

The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Securityholders. If the Trustee is not the Registrar, the Company shall furnish to the Trustee on or before each interest payment date and at such other times as the Trustee may request in writing a list, in such form and as of such date as the Trustee may reasonably require, of the names and addresses of Securityholders.

2.06 TRANSFER AND EXCHANGE.

Subject to Sections 2.15 and 2.16 hereof, where Securities are presented to the Registrar with a request to register their transfer or to exchange them for an equal principal amount of Securities of other authorized denominations, the Registrar shall register the transfer or make the exchange if its requirements for such transaction are met. To permit registrations of transfer and exchanges, the Trustee shall authenticate Securities at the Registrar’s request. The Company or the Trustee, as the case may be, shall not be required to register the transfer of or exchange any Security (i) for a period of 15 days before selecting, pursuant to Section 3.03, Securities to be redeemed or (ii) during a period beginning at the opening of business 15 days before the mailing of a notice of redemption of the Securities selected for Redemption under Section 3.04 and ending at the close of business on the day of such mailing or (iii) that has been selected for Redemption or for which a Purchase Notice has been delivered, and not withdrawn, in accordance with this Indenture, except the unredeemed or unrepurchased portion of Securities being redeemed or repurchased in part.

No service charge shall be made for any transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge that may be imposed in connection with any transfer or exchange of Securities, other than exchanges pursuant to Sections 2.10 or 11.05, or Article III, not involving any transfer.

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2.07 REPLACEMENT SECURITIES.

If the Holder of a Security claims that the Security has been mutilated, lost, destroyed or wrongfully taken, the Company shall issue and the Trustee shall authenticate a replacement Security upon surrender to the Trustee of the mutilated Security, or upon delivery to the Trustee of evidence of the loss, destruction or theft of the Security satisfactory to the Trustee and the Company. In the case of a lost, destroyed or wrongfully taken Security, if required by the Trustee or the Company, an indemnity bond must be provided by the Holder that is reasonably satisfactory to the Trustee and the Company to protect the Company, the Trustee or any Securities Agent from any loss which any of them may suffer if such Security is replaced. The Trustee may charge for its expenses in replacing a Security.

In case any such mutilated, lost, destroyed or wrongfully taken Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security when due.

Every replacement Security is an additional obligation of the Company only as provided in Section 2.08.

2.08 OUTSTANDING SECURITIES.

Securities outstanding at any time are all the Securities authenticated by the Trustee except for those cancelled by it (including, without limitation, those cancelled by it pursuant to Section 2.20), those delivered to it for cancellation and those described in this Section 2.08 as not outstanding. Except to the extent provided in Section 2.09, a Security does not cease to be outstanding because the Company or one of its Subsidiaries or Affiliates holds the Security.

If a Security is replaced pursuant to Section 2.07, it ceases to be outstanding unless the Trustee receives proof satisfactory to it, or a court holds, that the replaced Security is held by a protected purchaser.

If the Paying Agent (other than the Company) holds on a Redemption Date, Fundamental Change Repurchase Date, Asset Sale Repurchase Date or Maturity Date, money sufficient to pay the aggregate Redemption Price, Fundamental Change Repurchase Price, Asset Sale Repurchase Price or principal amount, as the case may be, with respect to all Securities to be redeemed, purchased or paid upon Redemption, Repurchase Upon Fundamental Change, Repurchase Upon Asset Sale or maturity, as the case may be, in each case plus, if applicable, accrued and unpaid interest, if any, payable as herein provided upon Redemption, Repurchase Upon Fundamental Change, Repurchase Upon Asset Sale or maturity, then (unless there shall be a Default in the payment of such aggregate Redemption Price, Fundamental Change Repurchase Price, Asset Sale Repurchase Price or principal amount, or of such accrued and unpaid interest), except as otherwise provided herein, on and after such date such Securities shall be deemed to be no longer outstanding, interest on such Securities shall cease to accrue, and such Securities shall be deemed paid whether or not such Securities are delivered to the

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Paying Agent. Thereafter, all rights of the Holders with respect to such Securities shall terminate with respect to such Securities, other than the right to receive the Redemption Price, Fundamental Change Repurchase Price, Asset Sale Repurchase Price or principal amount, as the case may be, plus, if applicable, such accrued and unpaid interest, in accordance with this Indenture.

2.09 SECURITIES HELD BY THE COMPANY OR AN AFFILIATE.

In determining whether the Holders of the required aggregate principal amount of Securities have concurred in any direction, waiver or consent, to the extent required by the TIA, Securities owned by the Company or any of its Subsidiaries or Affiliates shall be considered as though not outstanding, except that, for the purposes of determining whether a Responsible Officer of the Trustee shall be protected in relying on any such direction, waiver or consent, only Securities which the Trustee knows are so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be considered to be outstanding for purposes of this Section 2.09 if the pledgee establishes, to the satisfaction of the Trustee, the pledgee’s right so to concur with respect to such Securities and that the pledgee is not, and is not acting at the direction or on behalf of, the Company, any other obligor on the Securities, an Affiliate of the Company or an affiliate of any such other obligor. In the event of a dispute as to whether the pledgee has established the foregoing, the Trustee may rely on the advice of counsel or on an Officers’ Certificate.

2.10 TEMPORARY SECURITIES.

Until definitive Securities are ready for delivery, the Company may prepare and the Trustee shall authenticate temporary Securities. Temporary Securities shall be substantially in the form of definitive Securities but may have variations that the Company considers appropriate for temporary Securities. Without unreasonable delay, the Company shall prepare and the Trustee shall authenticate definitive Securities in exchange for temporary Securities. Until so exchanged, each temporary Security shall in all respects be entitled to the same benefits under this Indenture as definitive Securities, and such temporary Security shall be exchangeable for definitive Securities in accordance with the terms of this Indenture.

2.11 CANCELLATION.

The Company at any time may deliver Securities to the Trustee for cancellation. The Registrar and Paying Agent shall forward to the Trustee any Securities surrendered to them for transfer, exchange or payment. The Trustee shall promptly cancel all Securities surrendered for transfer, exchange, payment or cancellation in accordance with its customary procedures. The Company may not issue new Securities to replace Securities that it has paid or delivered to the Trustee for cancellation.

2.12 DEFAULTED INTEREST.

If and to the extent the Company defaults in a payment of interest on the Securities, the Company shall pay in cash the defaulted interest in any lawful manner

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plus, to the extent not prohibited by applicable statute or case law, interest on such defaulted interest at the rate provided in the Securities. The Company may pay the defaulted interest (plus interest on such defaulted interest) to the persons who are Securityholders on a subsequent special record date. The Company shall fix such record date and payment date. At least 15 calendar days before the record date, the Company shall mail to Securityholders (with a copy to the Trustee) a notice that states the record date, payment date and amount of interest to be paid.

2.13 CUSIP NUMBERS.

The Company in issuing the Securities may use one or more “CUSIP” numbers, and, if so, the Trustee shall use the CUSIP numbers in notices of redemption or exchange as a convenience to Holders; provided, however, that no representation is hereby deemed to be made by the Trustee as to the correctness or accuracy of the CUSIP numbers printed on the notice or on the Securities; provided further, that reliance may be placed only on the other identification numbers printed on the Securities, and the effectiveness of any such notice shall not be affected by any defect in, or omission of, such CUSIP numbers. The Company shall promptly notify the Trustee of any change in the CUSIP numbers.

2.14 DEPOSIT OF MONEYS.

Prior to 11:00 A.M., New York City time, on each interest payment date, Maturity Date, Redemption Date, Asset Sale Repurchase Date or Fundamental Change Repurchase Date, the Company shall have deposited with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust in accordance with Section 2.04) money, in funds immediately available on such date, sufficient to make cash payments, if any, due on such interest payment date, Maturity Date, Redemption Date, Asset Sale Repurchase Date or Fundamental Change Repurchase Date, as the case may be, in a timely manner which permits the Paying Agent to remit payment to the Holders on such interest payment date, Maturity Date, Redemption Date, Asset Sale Repurchase Date or Fundamental Change Repurchase Date, as the case may be. The Paying Agent shall return to the Company, as soon as practicable, any excess money not required for that purpose, including money received from the Interest Reserve Account as provided in the Interest Reserve Account Control Agreement .

2.15 BOOK-ENTRY PROVISIONS FOR GLOBAL SECURITIES.

(A) The Global Securities initially shall (i) be registered in the name of the Depositary or the nominee of the Depositary, (ii) be delivered to the Trustee as custodian for the Depositary and (iii) bear legends as set forth in Section 2.17.

Members of, or participants in, the Depositary (“Participants”) shall have no rights under this Indenture with respect to any Global Security held on their behalf by the Depositary, or the Trustee as its custodian, or under the Global Security, and the Depositary may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of the Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or

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any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and Participants, the operation of customary practices governing the exercise of the rights of a Holder of any Security.

(B) Transfers of Global Securities shall be limited to transfers in whole, but not in part, to the Depositary, its successors or their respective nominees. In addition, Physical Securities shall be transferred to all beneficial owners, as identified by the Depositary, in exchange for their beneficial interests in Global Securities only if (i) the Depositary notifies the Company that the Depositary is unwilling or unable to continue as depositary for any Global Security (or the Depositary ceases to be a “clearing agency” registered under Section 17A of the Exchange Act) and a successor Depositary is not appointed by the Company within 90 days of such notice or cessation or (ii) an Event of Default has occurred and is continuing and the Registrar has received a written request from the Depositary to issue Physical Securities.

(C) In connection with the transfer of a Global Security in its entirety to beneficial owners pursuant to Section 2.15(B), such Global Security shall be deemed to be surrendered to the Trustee for cancellation, and the Company shall execute, and the Trustee shall upon written instructions from the Company authenticate and deliver, to each beneficial owner identified by the Depositary in exchange for its beneficial interest in such Global Security, an equal aggregate principal amount of Physical Securities of authorized denominations.

(D) Any Physical Security constituting a Restricted Security delivered in exchange for an interest in a Global Security pursuant to Section 2.15(B) shall, except as otherwise provided by Section 2.16, bear the Private Placement Legend.

(E) The Holder of any Global Security may grant proxies and otherwise authorize any Person, including Participants and Persons that may hold interests through Participants, to take any action which a Holder is entitled to take under this Indenture or the Securities.

2.16 SPECIAL TRANSFER PROVISIONS.

(A) Transfers Pursuant to Regulation S. The following provisions shall apply with respect to the registration of any proposed transfer of a Security that is a Restricted Security pursuant to Regulation S:

(i) The Registrar shall register such proposed transfer if there is delivered to the Registrar and the Company a certificate substantially in the form of Exhibit C-1 (with such changes as may be reasonably requested by the Company) and, if reasonably requested by the Registrar or the Company in connection with a transfer that is not to be executed in, on or through the facilities of a “designated offshore securities market” (as defined in Regulation S), a certificate substantially in the form of Exhibit C-2 (with such changes as may be reasonably requested by the Company)

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and any legal opinions and other certifications reasonably requested by the Company.

(ii) If such Security is not a Regulation S Global Security, then the Company shall issue, and the Trustee shall authenticate, a Regulation S Global Security having a principal amount equal to the principal amount to be transferred or, alternatively, the Registrar shall accept the instructions from Participants of the Depositary to increase the principal amount of an existing Regulation S Global Security by the principal amount to be transferred, and in each case, correspondingly decrease the principal amount of the Security from which the principal amount was transferred.

(B) Transfers to QIBS. The following provisions shall apply with respect to the registration of any proposed transfer of a Restricted Security (other than pursuant to Regulation S):

(i) The Registrar shall register the transfer of a Restricted Security by a Holder to a QIB if such transfer is being made by a proposed transferor who has provided the Registrar with (a) an appropriately completed certificate of transfer in the form attached to the Note and (b) a letter substantially in the form set forth in Exhibit D hereto.

(ii) If such Security is not a QIB Global Security, then the Company shall issue, and the Trustee shall authenticate, a QIB Global Security having a principal amount equal to the principal amount to be transferred or, alternatively, the Registrar shall accept the instructions from Participants of the Depositary to increase the principal amount of an existing QIB Global Security by the principal amount to be transferred, and in each case, correspondingly decrease the principal amount of the Security from which the principal amount was transferred.

(C) Restrictions on Transfer and Exchange of Global Securities. Notwithstanding any other provisions of this Indenture, but except as provided in Section 2.15(B), a Global Security may not be transferred except as a whole by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary.

(D) Private Placement Legend. Upon the transfer, exchange or replacement of Securities not bearing the Private Placement Legend, the Registrar shall deliver Securities that do not bear the Private Placement Legend. Upon the transfer, exchange or replacement of Securities bearing the Private Placement Legend, the Registrar shall deliver only Securities that bear the Private Placement Legend unless there is delivered to the Company and the Trustee an Opinion of Counsel reasonably satisfactory to the Company and the Trustee to the effect that neither such legend nor the related restrictions

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on transfer are required in order to maintain compliance with the provisions of the Securities Act.

(E) General. By its acceptance of any Security bearing the Private Placement Legend, each Holder of such a Security acknowledges the restrictions on transfer of such Security set forth in this Indenture and in the Private Placement Legend and agrees that it will transfer such Security only as provided in this Indenture.

The Registrar shall retain copies of all letters, notices and other written communications received pursuant to Section 2.15 or this Section 2.16. The Company shall have the right to inspect and make copies of all such letters, notices or other written communications at the Company’s expense at any reasonable time upon the giving of reasonable written notice to the Registrar.

2.17 RESTRICTIVE LEGENDS.

Each Global Security and Physical Security that constitutes a Restricted Security shall bear the legend (the “Private Placement Legend”) as set forth in Exhibit B-1 on the face thereof (1) until after the first anniversary of the later of (i) the Issue Date and (ii) the last date on which the Company or any Affiliate was the owner of such Security (or any predecessor security) (or such shorter period of time as permitted by Rule 144 under the Securities Act or any successor provision thereunder) (or such longer period of time as may be required under the Securities Act or applicable state securities laws, as set forth in an Opinion of Counsel, unless otherwise agreed between the Company and the Holder thereof) (such date, the “Resale Restriction Termination Date”); or (2) as otherwise provided in or permitted by Section 2.16(D).

Each Global Security shall bear the legend set forth in Exhibit B-2.

Each Global Security and Physical Security shall bear the legend as set forth in Exhibit B-3. The Company shall provide notice to the Trustee of any Resale Restriction Termination Date.

2.18 AUTOMATIC EXCHANGE FROM RESTRICTED GLOBAL NOTE TO UNRESTRICTED GLOBAL NOTE.

On the Resale Restriction Termination Date, beneficial interests in a Global Security that bears the Private Placement Legend (a “Restricted Global Security”) shall be automatically exchanged (the “Automatic Exchange”) into beneficial interests in a Global Security not bearing the Private Placement Legend (an “Unrestricted Global Security”) without any action required by or on behalf of the Holder thereof. The Company shall at least 15 days but not more than 30 days before the Resale Restriction Termination Date, deliver a notice of Automatic Exchange (the “Automatic Exchange Notice”) to each Holder and to the Trustee, which Automatic Exchange Notice shall identify the Securities subject to the Automatic Exchange and shall state: (1) the date of the Automatic Exchange; (2) the CUSIP number of the Restricted Global Security being exchanged; and (3) the CUSIP number of the Unrestricted Global Security for which such Restricted Global Security is being exchanged.

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At the Company’s request, upon reasonable prior notice, the Trustee shall deliver, in the Company’s name and at its expense, the Automatic Exchange Notice to each Holder; provided, however, that the form and content of such Automatic Exchange Notice shall be prepared by the Company. In connection with an Automatic Exchange pursuant to this Section 2.18, the Trustee shall be entitled to receive from the Company, and rely conclusively upon, an Officers’ Certificate and an Opinion of Counsel to the Company, each in form and in substance reasonably satisfactory to the Trustee, to the effect that such Automatic Exchange complies with the Securities Act. Upon an Automatic Exchange pursuant to this Section 2.18 and in accordance with Depositary procedures, the Registrar shall reflect on its books and records the date of such Automatic Exchange and a decrease and increase, respectively, in the principal amount of the applicable Restricted Global Security(ies) and the Unrestricted Global Security(ies), respectively, equal to the principal amount of beneficial interests transferred pursuant to such Automatic Exchange. If an Unrestricted Global Security is not then outstanding at the time of an Automatic Exchange, then the Company shall execute, and the Trustee shall authenticate and deliver, an Unrestricted Global Security to the Depositary. Following any Automatic Exchange, each resulting Restricted Global Security whose principal amount is reduced to zero shall be cancelled.

2.19 RANKING.

The indebtedness of the Company arising under or in connection with this Indenture and every outstanding Security issued under this Indenture from time to time constitutes and will constitute a senior obligation of the Company, ranking equally with other existing and future senior indebtedness of the Company and ranking senior to any existing or future subordinated indebtedness of the Company.

2.20 POST-EXCHANGE NOTES.

Upon receipt by the Trustee of an Officers’ Certificate stating that the Exchange Offer Registration Statement has become effective under the Securities Act and that a specified principal amount of Pre-Exchange Securities have been duly tendered for exchange pursuant to the Exchange Offer, and containing any other information as the Trustee may reasonably request, the Trustee shall, upon receipt of certificates for, or book-entry transfer of, such Pre-Exchange Securities, promptly cancel such Pre-Exchange Securities and authenticate and deliver such specified principal amount of Securities in the form of Post-Exchange Securities to or upon a Company Order. As a condition precedent to the Trustee’s obligations under this Section 2.20, the Company shall deliver to the Trustee an executed Global Security or Global Securities representing the Post-Exchange Securities to be issued and any Opinion of Counsel reasonably requested by the Trustee.

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III. REDEMPTION AND REPURCHASE

3.01 RIGHT OF REDEMPTION AND REPURCHASE.

(A) A redemption or repurchase of the Securities by the Company, as permitted by any provision of this Indenture, shall be made:

(i) with respect to a repurchase at the Company’s option, in accordance with Section 3.01(D), Section 3.01(E) or Section 3.01(F) (a “Redemption”); or

(ii) with respect to any repurchase in accordance with Section 3.08 (a “Repurchase Upon Fundamental Change”); or

(iii) with respect to any repurchase in accordance with Section 3.09 (a “Repurchase Upon Asset Sale”),

in each case in accordance with the applicable provisions of this Article III.

(B) The Company will comply with all federal and state securities laws, and the applicable laws of any foreign jurisdiction, in connection with any offer to sell or solicitations of offers to buy Securities pursuant to this Article III and if such securities laws conflict with the provisions of this Article III, the securities law provisions shall apply.

(C) The Company shall not have the right to redeem any Securities except pursuant to Section 3.01(D), Section 3.01(E) or Section 3.01(F).

(D) The Company shall have the right, at the Company’s option, at any time, and from time to time, on a Redemption Date on or after March 15, 2013, to redeem all or any part of the Securities at a price payable in cash equal to the Optional Redemption Price plus (subject to Section 3.01(G)) accrued and unpaid interest, if any, to, but excluding, the Redemption Date.

(E) The Company shall have the right, at the Company’s option, at any time, and from time to time, on a Redemption Date before March 15, 2013, to redeem all or any part of the Securities at a price payable in cash equal to the Provisional Redemption Price plus (subject to Section 3.01(G)) accrued and unpaid interest, if any, to, but excluding, the Redemption Date.

(F) The Company shall have the right, at the Company’s option, at any time, and from time to time, on a Redemption Date before March 15, 2013, to redeem Securities at a price payable in cash equal to the Equity Offering Redemption Price plus (subject to Section 3.01(G)) accrued and unpaid interest, if any, to, but excluding, the Redemption Date; provided, however, that no such Redemption shall be made pursuant to this Section 3.01(F) unless:

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(i) such Equity Offering Redemption Price is paid solely from the proceeds of one or more Equity Offerings;

(ii) the aggregate principal amount of Securities to be redeemed pursuant to such Redemption, when taken together with the aggregate principal amount of Securities theretofore redeemed pursuant to this Section 3.01(F), may in no event exceed 35% of the principal amount of the Securities initially issued pursuant hereto on the Issue Date;

(iii) at least 65% of the Securities outstanding immediately prior to such Redemption will remain outstanding immediately after giving effect to such Redemption; and

(iv) such Redemption Date cannot occur on a date that is more than 90 days after the date of closing of the earliest Equity Offering the proceeds of which are to be used to pay such Equity Offering Redemption Price and accrued and unpaid interest.

(G) Notwithstanding anything herein to the contrary, (i) in no event shall any Redemption Date be a Legal Holiday; and (ii) the Redemption Price, plus accrued interest up to but excluding the Redemption Date shall be owing to the Holder upon surrender of such Security.

(H) Securities in denominations larger than $2,000 principal amount may be redeemed in part but only in integral multiples of $1,000 principal amount.

3.02 NOTICES TO TRUSTEE.

If the Company elects to redeem Securities pursuant to Sections 3.01(D), (E) or (F), it shall notify the Trustee of the Redemption Date, the applicable provision of this Indenture pursuant to which the Redemption is to be made and the aggregate principal amount of Securities to be redeemed, which notice shall be provided to the Trustee by the Company at least 15 days prior to the delivery, in accordance with Section 3.04, of the notice of Redemption (unless a shorter notice period shall be satisfactory to the Trustee).

3.03 SELECTION OF SECURITIES TO BE REDEEMED.

If the Company has elected to redeem less than all the Securities pursuant to Sections 3.01(D), (E) or (F), the Trustee shall, within five Business Days after receiving the notice specified in Section 3.02, select the Securities to be redeemed by lot, on a pro rata basis or in accordance with any other method the Trustee considers fair and appropriate or is required by the Depositary for the Securities. The Trustee shall make such selection from Securities then outstanding and not already to be redeemed by virtue of having been previously called for Redemption. Securities and portions of them the Trustee selects for Redemption shall be in a minimum amount of $2,000 or integral multiples of $1,000 in excess thereof; provided that the principal amount of any remaining Security is at least $2,000. The Trustee shall promptly notify the Company in

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writing of the Securities selected for Redemption and the principal amount thereof to be redeemed.

The Registrar need not register the transfer of or exchange any Securities that have been selected for Redemption, except the unredeemed portion of the Securities being redeemed in part.

3.04 NOTICE OF REDEMPTION.

At least 30 days but not more than 60 days before a Redemption Date, the Company shall mail, or cause to be mailed, by first-class mail a notice of Redemption to each Holder whose Securities are to be redeemed, at the address of such Holder appearing in the security register.

The notice shall identify the Securities and the aggregate principal amount thereof to be redeemed pursuant to the Redemption and shall state:

(i) the Redemption Date;

(ii) the Redemption Price plus accrued and unpaid interest, if any, to, but excluding, the Redemption Date;

(iii) the name and address of the Paying Agent;

(iv) the Section of the Indenture pursuant to which the Securities are to be redeemed;

(v) that Securities called for Redemption must be surrendered to the Paying Agent to collect the Redemption Price plus accrued and unpaid interest, if any, payable as herein provided upon Redemption;

(vi) that, unless there shall be a Default in the payment of the Redemption Price or accrued and unpaid interest, if any, payable as herein provided upon Redemption, interest on Securities called for Redemption ceases to accrue on and after the applicable Redemption Date and all rights of the Holders with respect to such Securities shall terminate on and after such Redemption Date, other than the right to receive, upon surrender of such Securities and in accordance with this Indenture, the amounts due hereunder on such Securities upon Redemption (and the rights of the Holder(s) of record of such Securities to receive, on the applicable interest payment date, accrued and unpaid interest on such Securities in accordance herewith in the event such Redemption Date is after a record date for the payment of an installment of interest and on or before the related interest payment date);

(vii) the CUSIP number or numbers, as the case may be, of the Securities; and

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(viii) in the case of a redemption of Notes pursuant to Section 3.01(F), whether the redemption is subject to any conditions precedent (it being understood that only redemptions under Section 3.01(F) may be subject to any conditions precedent), and if so, that in the event that any or all conditions are not satisfied by the redemption date, the Company will have the discretion to delay the redemption date until such time as any or all the conditions are satisfied, so long as the redemption occurs within 60 days of such notice, or to rescind the notice and cancel the redemption.

At the Company’s request, upon 45 days written notice prior to the Redemption Date (or such shorter period that is acceptable to the Trustee), the Trustee shall mail the notice of Redemption in the Company’s name and at the Company’s expense; provided, however, that the form and content of such notice shall be prepared by the Company.

3.05 EFFECT OF NOTICE OF REDEMPTION.

Once notice of Redemption is mailed, subject to clause (viii) of Section 3.04, Securities called for Redemption become due and payable on the Redemption Date at the consideration set forth herein, and, on and after such Redemption Date (unless there shall be a Default in the payment of such consideration), except as otherwise provided herein, such Securities shall cease to bear interest, and all rights of the Holders with respect to such Securities shall terminate, other than the right to receive such consideration upon surrender of such Securities to the Paying Agent (except that, if the Redemption Date is after a record date for the payment of an installment of interest and on or before the related interest payment date, then accrued and unpaid interest on such Securities to, but excluding, such interest payment date will be paid, on such interest payment date, to the Holder(s) of record of such Securities at the close of business on such record date without any requirement to surrender such Securities to the Paying Agent).

If any Security shall not be fully and duly paid in accordance herewith upon Redemption, the principal of, and accrued and unpaid interest on, such Security shall, until paid, bear interest at the rate borne by such Security on the principal amount of such Security.

Notwithstanding anything herein to the contrary, there shall be no purchase of any Securities pursuant to a Redemption if the principal amount of the Securities has been accelerated pursuant to Section 6.02 and such acceleration shall not have been rescinded on or before the applicable Redemption Date. The Paying Agent will promptly return to the respective Holders thereof any Securities tendered to it for Redemption during the continuance of such an acceleration.

3.06 DEPOSIT OF REDEMPTION PRICE.

Prior to 11:00 A.M., New York City time on the Redemption Date, the Company shall deposit with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust in accordance with Section 2.04) money, in funds immediately available on the Redemption Date, sufficient to pay the consideration

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payable as herein provided upon Redemption on all Securities to be redeemed on that date. The Paying Agent shall return to the Company, as soon as practicable, any excess money not required for that purpose.

3.07 SECURITIES REDEEMED IN PART.

Any Security to be submitted for Redemption only in part shall be delivered pursuant to Section 3.05 (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or its attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities, of any authorized denomination as requested by such Holder, of the same tenor and in aggregate principal amount equal to the portion of such Security not submitted for Redemption.

3.08 REPURCHASE AT OPTION OF HOLDER UPON A FUNDAMENTAL CHANGE.

(A) In the event any Fundamental Change (as defined below) shall occur, each Holder of Securities shall have the right (the “Fundamental Change Repurchase Right”), at such Holder’s option, to require the Company to repurchase all of such Holder’s Securities (or portions thereof that are integral multiples of $1,000 in principal amount, subject to a minimum of $2,000), on a date selected by the Company (the “Fundamental Change Repurchase Date”), which Fundamental Change Repurchase Date shall be no later than 35 days, nor earlier than 20 days, after the date the Fundamental Change Notice (as defined below) is mailed in accordance with Section 3.08(B), at a price, payable in cash, equal to 101% of the principal amount of the Securities (or portions thereof) to be so repurchased (the “Fundamental Change Repurchase Price”), plus accrued and unpaid interest, if any, to, but excluding, the Fundamental Change Repurchase Date, upon:

(i) delivery to the Company (if it is acting as its own Paying Agent), or to a Paying Agent designated by the Company for such purpose in the Fundamental Change Notice, no later than the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date, of a Purchase Notice, in the form set forth in the Securities or any other form of written notice substantially similar thereto, in each case, duly completed and signed, with appropriate signature guarantee, stating:

(a) the certificate number(s) of the Securities which the Holder will deliver to be repurchased, if such Securities are in certificated form;

(b) the principal amount of Securities to be repurchased, which must be in a minimum amount of $2,000 or an integral multiple of $1,000 in excess thereof; and

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(c) that such principal amount of Securities are to be repurchased pursuant to the terms and conditions specified in this Section 3.08; and

(ii) delivery to the Company (if it is acting as its own Paying Agent), or to a Paying Agent designated by the Company for such purpose in the Fundamental Change Notice, at any time after the delivery of such Purchase Notice, of such Securities (together with all necessary endorsements) with respect to which the Fundamental Change Repurchase Right is being exercised.

If such Securities are held in book-entry form through the Depositary, the Purchase Notice shall comply with applicable procedures of the Depositary.

Notwithstanding anything herein to the contrary, any Holder that has delivered the Purchase Notice contemplated by this Section 3.08(A) to the Company (if it is acting as its own Paying Agent) or to a Paying Agent designated by the Company for such purpose in the Fundamental Change Notice shall have the right to withdraw such Purchase Notice by delivery, at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date, of a written notice of withdrawal to the Company (if acting as its own Paying Agent) or the Paying Agent, which notice shall contain the information specified in Section 3.08(B)(xi).

The Paying Agent shall promptly notify the Company of the receipt by it of any Purchase Notice or written notice of withdrawal thereof.

(B) No later than 15 Business Days after the occurrence of a Fundamental Change, the Company shall mail, or cause to be mailed, to all Holders of record of the Securities at their addresses shown in the register of the Registrar, and to beneficial owners as required by applicable law, a notice (the “Fundamental Change Notice”) of the occurrence of such Fundamental Change and the Fundamental Change Repurchase Right arising as a result thereof. The Company shall deliver a copy of the Fundamental Change Notice to the Trustee and issue a press release through a national newswire. For the avoidance of doubt, a Fundamental Change Notice may be sent prior to the consummation of the related Fundamental Change and in such case may be made conditional on the consummation of that Fundamental Change.

Each Fundamental Change Notice shall state:

(i) the events causing the Fundamental Change;

(ii) the date of such Fundamental Change;

(iii) the Fundamental Change Repurchase Date;

(iv) the date by which the Fundamental Change Repurchase Right must be exercised;

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(v) the Fundamental Change Repurchase Price plus accrued and unpaid interest, if any, to, but excluding, the Fundamental Change Repurchase Date;

(vi) the name and address of the Paying Agent;

(vii) a description of the procedures which a Holder must follow to exercise the Fundamental Change Repurchase Right;

(viii) that, in order to exercise the Fundamental Change Repurchase Right, the Securities must be surrendered for payment of the Fundamental Change Repurchase Price plus accrued and unpaid interest, if any, payable as herein provided upon Repurchase Upon Fundamental Change;

(ix) that the Fundamental Change Repurchase Price, plus accrued and unpaid interest, if any, to, but excluding, the Fundamental Change Repurchase Date, for any Security as to which a Purchase Notice has been given and not withdrawn will be paid as promptly as practicable, but in no event later than the later of such Fundamental Change Repurchase Date and the time of delivery of the Security (together with all necessary endorsements) as described in clause (viii) above; provided, however, that if such Fundamental Change Repurchase Date is after a record date for the payment of an installment of interest and on or before the related interest payment date, then the accrued and unpaid interest, if any, on such Security to, but excluding, such interest payment date will be paid on such interest payment date to the Holder of record of such Security at the close of business on such record date (without any surrender of such Securities by such Holder), and the Holder surrendering such Security for repurchase will not be entitled to any such accrued and unpaid interest unless such Holder was also the Holder of record of such Security at the close of business on such record date;

(x) that, except as otherwise provided herein, on and after such Fundamental Change Repurchase Date (unless there shall be a Default in the payment of the consideration payable as herein provided upon Repurchase Upon Fundamental Change), interest on Securities subject to Repurchase Upon Fundamental Change will cease to accrue, and all rights of the Holders with respect to such Securities shall terminate, other than the right to receive, in accordance herewith, the consideration payable as herein provided upon Repurchase Upon Fundamental Change;

(xi) that a Holder will be entitled to withdraw its election in the Purchase Notice if the Company (if acting as its own Paying Agent), or the Paying Agent receives, prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date, or such longer period as may be required by law, a letter or telegram, telex or facsimile transmission (receipt of which is confirmed and promptly followed by a letter) setting forth (I) the name of such Holder, (II) a statement that such Holder is

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withdrawing its election to have Securities purchased by the Company on such Fundamental Change Repurchase Date pursuant to a Repurchase Upon Fundamental Change, (III) the certificate number(s) of such Securities to be so withdrawn, if such Securities are in certificated form, (IV) the principal amount of the Securities of such Holder to be so withdrawn, which amount must be in a minimum amount of $2,000 or an integral multiple of $1,000 in excess thereof and (V) the principal amount, if any, of the Securities of such Holder that remain subject to the Purchase Notice delivered by such Holder in accordance with this Section 3.08, which amount must be in a minimum amount of $2,000 or an integral multiple of $1,000 in excess thereof;

(xii) the CUSIP number or numbers, as the case may be, of the Securities; and

(xiii) in the case of a Fundamental Change Notice sent prior to the consummation of a Fundamental Change, that the Fundamental Change Repurchase Right is conditional on the consummation of that Fundamental Change.

At the Company’s request, upon reasonable prior notice, the Trustee shall mail such Fundamental Change Notice in the Company’s name and at the Company’s expense; provided, however, that the form and content of such Fundamental Change Notice shall be prepared by the Company.

No failure of the Company to give a Fundamental Change Notice shall limit any Holder’s right to exercise a Fundamental Change Repurchase Right.

(C) Subject to the provisions of this Section 3.08, the Company shall pay, or cause to be paid, the Fundamental Change Repurchase Price, plus accrued and unpaid interest, if any, to, but excluding, the Fundamental Change Repurchase Date, with respect to each Security as to which the Fundamental Change Repurchase Right shall have been exercised to the Holder thereof as promptly as practicable, but in no event later than the later of the Fundamental Change Repurchase Date and the time such Security (together with all necessary endorsements) is surrendered or transferred, by book-entry, to the Paying Agent; provided, however, that if such Fundamental Change Repurchase Date is after a record date for the payment of an installment of interest and on or before the related interest payment date, then the accrued and unpaid interest, if any, on such Security to, but excluding, such interest payment date will be paid on such interest payment date to the Holder of record of such Security at the close of business on such record date, and the Holder surrendering such Security for repurchase will not be entitled to any such accrued and unpaid interest unless such Holder was also the Holder of record of such Security at the close of business on such record date.

(D) Prior to 11:00 A.M., New York City time on a Fundamental Change Repurchase Date, the Company shall deposit with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust in accordance with Section 2.04) money, in funds immediately available on the Fundamental Change Repurchase

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Date, sufficient to pay the consideration payable as herein provided upon Repurchase Upon Fundamental Change for all of the Securities that are to be repurchased by the Company on such Fundamental Change Repurchase Date pursuant to a Repurchase Upon Fundamental Change. The Paying Agent shall return to the Company, as soon as practicable, any excess money not required for that purpose.

(E) Once the Fundamental Change Notice and the Purchase Notice have been duly given in accordance with this Section 3.08 (and subject to Section 3.08(b)), the Securities to be repurchased pursuant to a Repurchase Upon Fundamental Change shall, on the Fundamental Change Repurchase Date, become due and payable in accordance herewith, and, on and after such date (unless there shall be a Default in the payment of the consideration payable as herein provided upon Repurchase Upon Fundamental Change), except as otherwise herein provided, such Securities shall cease to bear interest, and all rights of the Holders with respect to such Securities shall terminate, other than the right to receive, in accordance herewith, such consideration.

(F) If any Security shall not be paid upon surrender thereof for Repurchase Upon Fundamental Change, the principal of, and accrued and unpaid interest on, such Security shall, until paid, bear interest, payable in cash, at the rate borne by such Security on the principal amount of such Security.

(G) Any Security which is to be submitted for Repurchase Upon Fundamental Change only in part shall be delivered pursuant to this Section 3.08 (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or its attorney duly authorized in writing), and the Company shall execute, and the Trustee, upon receipt of a Company Order, shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities, of any authorized denomination as requested by such Holder, of the same tenor and in aggregate principal amount equal to the portion of such Security not duly submitted for Repurchase Upon Fundamental Change.

(H) Notwithstanding anything herein to the contrary, there shall be no purchase of any Securities pursuant to this Section 3.08 if the principal amount of the Securities has been accelerated pursuant to Section 6.02 and such acceleration shall not have been rescinded on or before the applicable Fundamental Change Repurchase Date. The Paying Agent will promptly return to the respective Holders thereof any Securities tendered to it for Repurchase Upon Fundamental Change during the continuance of such an acceleration.

(I) Notwithstanding anything herein to the contrary, if the option granted to Holders to require the repurchase of the Securities upon the occurrence of a Fundamental Change is determined to constitute a tender offer, the Company shall comply with all applicable tender offer rules under the Exchange Act, including Rule 13e-4 and Regulation 14E thereunder, and with all other applicable laws, and will file a Schedule TO or any other schedules required under the Exchange Act or any other applicable laws.

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(J) As used herein and in the Securities, a “Fundamental Change” shall be deemed to have occurred at such time as:

(i) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), other than one or more Permitted Holders, is or becomes the “beneficial owner” (as such term is used in Rule 13d-3 under the Exchange Act), directly or indirectly, of more than 50% of the total outstanding voting power of all classes of the Company’s Capital Stock entitled to vote generally in the election of directors; or

(ii) there occurs a sale, transfer, lease, conveyance or other disposition of all or substantially all of the property or assets of the Company, or of the Company and its Subsidiaries on a consolidated basis, to any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), other than one or more Permitted Holders, including any group acting for the purpose of acquiring, holding, voting or disposing of securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act; or

(iii) the Company consolidates with, or merges with or into, another person or any person consolidates with, or merges with or into, the Company, unless the persons that “beneficially owned” (as such term is used in Rule 13d-3 under the Exchange Act), directly or indirectly, the shares of the Company’s Voting Stock immediately prior to such consolidation or merger, “beneficially own,” directly or indirectly, immediately after such consolidation or merger, shares of the surviving or continuing corporation’s Voting Stock representing at least a majority of the total outstanding voting power of all outstanding classes of the Voting Stock of the surviving or continuing corporation in substantially the same proportion as such ownership immediately prior to such consolidation or merger; or

(iv) the following persons cease for any reason to constitute a majority of the Company’s Board of Directors:

(a) individuals who on the Issue Date constituted the Company’s Board of Directors; and

(b) any new directors whose election to the Company’s Board of Directors or whose nomination for election by the Company’s stockholders was approved by at least a majority of the directors of the Company then still in office (or by at least a majority of the members of a duly authorized committee of the directors of the Company then still in office) either who were directors of the Company on the Issue Date or whose election or nomination for election was previously so approved; or

(v) the Company is liquidated or dissolved or there is adopted any plan or proposal for the liquidation or dissolution of the Company; or

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(vi) there occurs a “Change in Control” under (and as defined in) the indenture governing the Company’s 2.5% Contingent Convertible Subordinated Notes Due 2033.

3.09 REPURCHASE AT OPTION OF HOLDER UPON AN ASSET SALE.

(A) In the event any Asset Sale shall occur and the Company elects, or is required, pursuant to Section 4.15, to make an offer to repurchase Securities pursuant to this Section 3.09, each Holder of Securities shall, subject to Section 3.09(B), have the right (the “Asset Sale Repurchase Right”), at such Holder’s option, to require the Company to repurchase all of such Holder’s Securities (or portions thereof that are integral multiples of $1,000 in principal amount, subject to a minimum of $2,000), on a date selected by the Company (the “Asset Sale Repurchase Date”), which Asset Sale Repurchase Date shall be no later than 35 days, nor earlier than 20 days, after the date the Asset Sale Notice (as defined below) is mailed in accordance with Section 3.09(C), at a price, payable in cash, equal to 100% of the principal amount of the Securities (or portions thereof) to be so repurchased (the “Asset Sale Repurchase Price”), plus accrued and unpaid interest, if any, to, but excluding, the Asset Sale Repurchase Date, upon:

(i) delivery to the Company (if it is acting as its own Paying Agent), or to a Paying Agent designated by the Company for such purpose in the Asset Sale Notice, no later than the close of business on the Business Day immediately preceding the Asset Sale Repurchase Date, of a Purchase Notice, in the form set forth in the Securities or any other form of written notice substantially similar thereto, in each case, duly completed and signed, with appropriate signature guarantee, stating:

(a) the certificate number(s) of the Securities which the Holder will deliver to be repurchased, if such Securities are in certificated form;

(b) the principal amount of Securities to be repurchased, which must be in a minimum amount of $2,000 or an integral multiple of $1,000 in excess thereof; and

(c) that such principal amount of Securities are to be repurchased pursuant to the terms and conditions specified in this Section 3.09; and

(ii) delivery to the Company (if it is acting as its own Paying Agent), or to a Paying Agent designated by the Company for such purpose in the Asset Sale Notice, at any time after the delivery of such Purchase Notice, of such Securities (together with all necessary endorsements) with respect to which the Asset Sale Repurchase Right is being exercised.

If such Securities are held in book-entry form through the Depositary, the Purchase Notice shall comply with applicable procedures of the Depositary.

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Notwithstanding anything herein to the contrary, any Holder that has delivered the Purchase Notice contemplated by this Section 3.09(A) to the Company (if it is acting as its own Paying Agent) or to a Paying Agent designated by the Company for such purpose in the Asset Sale Notice shall have the right to withdraw such Purchase Notice by delivery, at any time prior to the close of business on the Business Day immediately preceding the Asset Sale Repurchase Date, of a written notice of withdrawal to the Company (if acting as its own Paying Agent) or the Paying Agent, which notice shall contain the information specified in Section 3.09(C)(xiii).

The Paying Agent shall promptly notify the Company of the receipt by it of any Purchase Notice or written notice of withdrawal thereof.

(B) Notwithstanding anything to the contrary herein, in connection with a Repurchase Upon Asset Sale, (1) payment by the Company of the principal amount of Securities to be repurchased pursuant to this Section 3.09 shall be made by Net Cash Proceeds from one or more Asset Sales in accordance with Section 4.15; (2) in no event shall the Company be required to repurchase Securities pursuant to this Section 3.09 to the extent that the aggregate principal amount of the Securities to be repurchased exceeds an amount (the “Maximum Dollar Amount for Repurchase Upon Asset Sale”) equal to the greater of (i) the Required Offer Amount and (ii) any greater amount (which shall not exceed the total Net Cash Proceeds of all Asset Sales theretofore effected) elected by Company; and (2) if the aggregate principal amount of all Securities properly tendered for repurchase pursuant to such Repurchase Upon Asset Sale exceeds such Maximum Dollar Amount for Repurchase Upon Asset Sale, then the Trustee will select, from such Securities so tendered, the Securities to be repurchased pursuant to such Repurchase Upon Asset Sale on a pro rata basis, by lot or any other method the Trustee considers fair or appropriate or is required by the Depositary of the Securities, such that the aggregate principal amount of such selected Securities will be as close as possible to, but not exceeding, such Maximum Dollar Amount for Repurchase Upon Asset Sale; provided, however, that such selection must be made in a minimum amount of $2,000 or an integral multiple of $1,000 in excess thereof.

(C) At any time after the Asset Sale, but no later than 10 Business Days after the Company becomes obligated, pursuant to Section 4.15, to make an offer to repurchase Securities pursuant to this Section 3.09, the Company shall mail, or cause to be mailed, to all Holders of record of the Securities at their addresses shown in the register of the Registrar, and to beneficial owners as required by applicable law, a notice (the “Asset Sale Notice”) of the occurrence of the applicable Asset Sale and the Asset Sale Repurchase Right arising as a result thereof. The Company shall contemporaneously deliver a copy of the Asset Sale Notice to the Trustee and issue a press release through a national newswire.

Each Asset Sale Notice for a Repurchase Upon Asset Sale shall state:

(i) the events causing the Asset Sale;

(ii) the date of such Asset Sale;

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(iii) the Asset Sale Repurchase Date;

(iv) the date by which the Asset Sale Repurchase Right must be exercised;

(v) the Asset Sale Repurchase Price plus accrued and unpaid interest, if any, to, but excluding, the Asset Sale Repurchase Date;

(vi) the applicable Maximum Dollar Amount for Repurchase Upon Asset Sale;

(vii) that if the aggregate principal amount of all Securities properly tendered for repurchase pursuant to such Repurchase Upon Asset sale exceeds such Maximum Dollar Amount for Repurchase Upon Asset Sale, then the Trustee will select, from such Securities so tendered, the Securities to be repurchased pursuant to such Repurchase Upon Asset Sale on a pro rata basis, by lot or any other method the Trustee considers fair or appropriate or is required by the Depositary of the Securities, such that the aggregate principal amount of such selected Securities will be as close as possible to, but not exceeding, such Maximum Dollar Amount for Repurchase Upon Asset Sale; provided, however, that such selection must be made in a minimum amount of $2,000 or an integral multiple of $1,000 in excess thereof;

(viii) the name and address of the Paying Agent;

(ix) a description of the procedures which a Holder must follow to exercise the Asset Sale Repurchase Right;

(x) that, in order to exercise the Asset Sale Repurchase Right, the Securities must be surrendered for payment of the Asset Sale Repurchase Price plus accrued and unpaid interest, if any, payable as herein provided upon Repurchase Upon Asset Sale;

(xi) that, subject to Section 3.09(B), the Asset Sale Repurchase Price, plus accrued and unpaid interest, if any, to, but excluding, the Asset Sale Repurchase Date, for any Security as to which a Purchase Notice has been given and not withdrawn will be paid as promptly as practicable, but in no event later than the later of such Asset Sale Repurchase Date and the time of delivery of the Security (together with all necessary endorsements) as described in Section 3.09(C)(x) above;

(xii) that, except as otherwise provided herein, on and after such Asset Sale Repurchase Date (unless there shall be a Default in the payment of the consideration payable as herein provided upon Repurchase Upon Asset Sale), interest on Securities subject to Repurchase Upon Asset Sale will cease to accrue, and all rights of the Holders with respect to such Securities shall terminate, other than the right to receive, in accordance herewith, the consideration payable as herein provided upon Repurchase Upon Asset Sale;

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(xiii) that a Holder will be entitled to withdraw its election in the Purchase Notice if the Company (if acting as its own Paying Agent), or the Paying Agent receives, prior to the close of business on the Business Day immediately preceding the Asset Sale Repurchase Date, or such longer period as may be required by law, a letter or telegram, telex or facsimile transmission (receipt of which is confirmed and promptly followed by a letter) setting forth (I) the name of such Holder, (II) a statement that such Holder is withdrawing its election to have Securities purchased by the Company on such Asset Sale Repurchase Date pursuant to a Repurchase Upon Asset Sale, (III) the certificate number(s) of such Securities to be so withdrawn, if such Securities are in certificated form, (IV) the principal amount of the Securities of such Holder to be so withdrawn, which amount must be in a minimum amount of $2,000 or an integral multiple of $1,000 in excess thereof and (V) the principal amount, if any, of the Securities of such Holder that remain subject to the Purchase Notice delivered by such Holder in accordance with this Section 3.09, which amount must be in a minimum amount of $2,000 or an integral multiple of $1,000 in excess thereof; and

(xiv) the CUSIP number or numbers, as the case may be, of the Securities.

At the Company’s request, upon reasonable prior notice, the Trustee shall mail such Asset Sale Notice in the Company’s name and at the Company’s expense; provided, however, that the form and content of such Asset Sale Notice shall be prepared by the Company.

No failure of the Company to give an Asset Sale Notice shall limit any Holder’s right to exercise an Asset Sale Repurchase Right.

(D) Subject to the provisions of this Section 3.09 (including, without limitation, Section 3.09(B)), the Company shall pay, or cause to be paid, the Asset Sale Repurchase Price, plus accrued and unpaid interest, if any, to, but excluding, the Asset Sale Repurchase Date, with respect to each Security as to which the Asset Sale Repurchase Right shall have been exercised to the Holder thereof as promptly as practicable, but in no event later than the later of the Asset Sale Repurchase Date and the time such Security (together with all necessary endorsements) is surrendered or transferred, by book-entry, to the Paying Agent; provided, however, that if such Asset Sale Repurchase Date is after a record date for the payment of an installment of interest and on or before the related interest payment date, then the accrued and unpaid interest, if any, on such Security to, but excluding, such interest payment date will be paid on such interest payment date to the Holder of record of such Security at the close of business on such record date, and the Holder surrendering such Security for repurchase will not be entitled to any such accrued and unpaid interest unless such Holder was also the Holder of record of such Security at the close of business on such record date.

(E) Subject to Section 3.09(B), prior to 11:00 A.M., New York City time on an Asset Sale Repurchase Date, the Company shall deposit with a Paying Agent (or, if the

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Company is acting as its own Paying Agent, segregate and hold in trust in accordance with Section 2.04) money, in funds immediately available on the Asset Sale Repurchase Date, sufficient to pay the consideration payable as herein provided upon Repurchase Upon Asset Sale for all of the Securities that are to be repurchased by the Company on such Asset Sale Repurchase Date pursuant to a Repurchase Upon Asset Sale. The Paying Agent shall return to the Company, as soon as practicable, any excess money not required for that purpose.

(F) Once the Asset Sale Notice and the Purchase Notice have been duly given in accordance with this Section 3.09, the Securities to be repurchased pursuant to a Repurchase Upon Asset Sale shall, on the Asset Sale Repurchase Date, become due and payable in accordance herewith, and, on and after such date (unless there shall be a Default in the payment of the consideration payable as herein provided upon Repurchase Upon Asset Sale), except as otherwise herein provided, such Securities shall cease to bear interest, and all rights of the Holders with respect to such Securities shall terminate, other than the right to receive, in accordance herewith, such consideration.

(G) If any Security shall not be paid upon surrender thereof for Repurchase Upon Asset Sale, the principal of, and accrued and unpaid interest on, such Security shall, until paid, bear interest, payable in cash, at the rate borne by such Security on the principal amount of such Security.

(H) Any Security which is to be submitted for Repurchase Upon Asset Sale only in part shall be delivered pursuant to this Section 3.09 (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or its attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities, of any authorized denomination as requested by such Holder, of the same tenor and in aggregate principal amount equal to the portion of such Security not duly submitted for Repurchase Upon Asset Sale.

(I) Notwithstanding anything herein to the contrary, there shall be no purchase of any Securities pursuant to this Section 3.09 if the principal amount of the Securities has been accelerated pursuant to Section 6.02 and such acceleration shall not have been rescinded on or before the applicable Asset Sale Repurchase Date. The Paying Agent will promptly return to the respective Holders thereof any Securities tendered to it for Repurchase Upon Asset Sale during the continuance of such an acceleration.

(J) Notwithstanding anything herein to the contrary, if the option granted to Holders to require the repurchase of the Securities upon the occurrence of an Asset Sale is determined to constitute a tender offer, the Company shall comply with all applicable tender offer rules under the Exchange Act, including Rule 13e-4 and Regulation 14E thereunder, and with all other applicable laws, and will file a Schedule TO or any other schedules required under the Exchange Act or any other applicable laws.

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IV. COVENANTS

4.01 PAYMENT OF SECURITIES.

The Company shall pay all amounts due with respect to the Securities on the dates and in the manner provided in the Securities. All such amounts shall be considered paid on the date due if the Paying Agent holds (or, if the Company is acting as Paying Agent, the Company has segregated and holds in trust in accordance with Section 2.04) on that date prior to 11:00 AM New York City time, money sufficient to pay the amount then due with respect to the Securities (unless there shall be a Default in the payment of such amounts to the respective Holder(s)).

The Company shall pay, in cash, interest on any overdue amount (including, to the extent permitted by applicable law, overdue interest) at the rate borne by the Securities.

4.02 MAINTENANCE OF OFFICE OR AGENCY.

The Company will maintain an office or agency (which may be an office of the Trustee or an affiliate of the Trustee, Registrar or co-Registrar) where Securities may be surrendered for registration of transfer or exchange or payment. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations and surrenders may be made at the Corporate Trust Office of the Trustee.

The Company may also from time to time designate one or more other offices or agencies where the Securities may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.

The Company hereby designates the Corporate Trust Office of the Trustee as an agency of the Company in accordance with Section 2.03.

4.03 SEC REPORTS AND RULE 144A INFORMATION AND OTHER REPORTS.

(A) SEC Reports and Rule 144A Information.

(i) At any time any Securities bear the Private Placement Legend and when the Company is not subject to Sections 13 or 15(d) of the Exchange Act, the Company shall promptly provide to the Trustee and shall, upon request, provide to any Holder, beneficial owner or prospective purchaser of Securities, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act to facilitate the resale of such Securities pursuant to Rule 144A. The Company shall take such further action as any

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Holder or beneficial holder of such Securities may reasonably request to the extent required from time to time to enable such Holder or beneficial holder to sell its Securities in accordance with Rule 144A, as such rule may be amended from time to time.

(ii) The Company shall deliver to the Trustee, no later than 15 business days after the time such report is required to be filed with the SEC pursuant to the Exchange Act, a copy of each report the Company is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act; provided, however, that the Company shall not be required to deliver to the Trustee any material for which the Company has sought and received confidential treatment by the SEC; provided further, that each such report will be deemed to be so delivered to the Trustee by filing such report with the SEC through the SEC’s EDGAR database. In the event the Company is at any time while any Securities are outstanding no longer subject to the reporting requirements of Section 13 or Section 15(d) of the Exchange Act, the Company shall continue to provide to the Trustee and, upon request, to each Holder, no later than 15 business days after the date the Company would have been required to file the same with the SEC, the reports the Company would have been required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act if the Company were subject to the reporting requirements of such sections. Following qualification of this Indenture under the TIA, the Company shall also comply with the other provisions of TIA § 314(a). Delivery of such reports, information and documents to the Trustee is for informational purposes only, and the Trustee’s receipt thereof shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).

(iii) Notwithstanding anything herein to the contrary, the Company will not be deemed to have failed to comply with any of its obligations under this Section 4.03 for the purposes of clause (iv) of Section 6.01 until 45 days after the date any report or information is due under this Section 4.03.

(B) Other Reports. Following qualification of this Indenture under the TIA, the Company shall furnish to the Trustee and the Collateral Agent on a semi-annual basis, an Officer’s Certificate stating that (if applicable) all dispositions of Collateral made during the preceding six-month period were made in the ordinary course of business.

4.04 COMPLIANCE CERTIFICATE.

The Company shall deliver to the Trustee beginning in 2012, within 90 calendar days after the end of each fiscal year of the Company (which is currently set to end each March 31^st) or, if earlier, by the date the Company is, or would be, required to file with the SEC the Company’s annual report (whether on Form 10-K under the Exchange Act or another appropriate form) for such fiscal year, an Officers’ Certificate stating whether or

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not the signatories to such Officers’ Certificate know of any Default or Event of Default by the Company in performing any of its obligations under this Indenture or the Securities. If such signatories do know of any such Default or Event of Default on such date, then such Officers’ Certificate shall describe the Default or Event of Default and its status.

4.05 STAY, EXTENSION AND USURY LAWS.

Each of the Company and the Guarantors covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and each of the Company and the Guarantors (in each case, to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law has been enacted.

4.06 CORPORATE EXISTENCE.

Subject to Article V, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence and the corporate existence of each of its Significant Subsidiaries, in accordance with the respective organizational documents of the Company and of each of its Significant Subsidiaries, and the rights (charter and statutory), licenses and franchises of the Company and its Significant Subsidiaries; provided, however, that the Company shall not be required to preserve any such right, license or franchise, or the corporate existence of any of its Subsidiaries, if in the good faith judgment of the Company (i) such preservation or existence is not material to the conduct of business of the Company and (ii) the loss of such right, license or franchise or the dissolution of such Subsidiary does not have a material adverse impact on the ability of Holders to be repaid.

4.07 NOTICE OF DEFAULT.

Upon becoming aware of any Default or Event of Default, the Company shall give written notice of such Default or Event of Default within 15 days thereof, and any remedial action proposed to be taken, to the Trustee unless such Default or Event of Default has been cured within the 15-day period.

4.08 PAYMENT OF TAXES.

The Company shall pay or discharge or cause to be paid or discharged, before the same shall become delinquent, all material taxes, assessments and governmental charges (including, without limitation, withholding taxes and any penalties, interest and additions to taxes) levied or imposed upon the Company or any of its Restricted Subsidiaries or the properties of the Company or any of its Restricted Subsidiaries; provided, however, that the Company shall not be required, pursuant to this Section 4.08, to pay or discharge or

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cause to be paid or discharged any such tax, assessment or charge whose amount, applicability or validity is, or will be, contested in good faith by appropriate proceedings properly instituted and diligently conducted and for which adequate reserves, to the extent required under GAAP, have been taken.

4.09 MAINTENANCE OF PROPERTIES AND INSURANCE.

(A) The Company shall, and shall cause each of its Restricted Subsidiaries to, maintain its properties in good working order and condition in all material respects (subject to ordinary wear and tear) and make all necessary repairs, renewals, replacements, additions, betterments and improvements thereto and actively conduct and carry on its business; provided, however, that nothing in this Section 4.09 shall prevent the Company or any of its Restricted Subsidiaries from discontinuing the operation and maintenance of any of its properties if such discontinuance is, in the good faith judgment of the Company, desirable in the conduct of the business of Company and its Subsidiaries, taken as a whole.

(B) The Company shall maintain insurance (including, without limitation, appropriate self-insurance) against loss or damage of the kinds that, in the good faith judgment of the Company, are adequate and appropriate for the conduct of the business of the Company and its Restricted Subsidiaries in a prudent manner, with reputable insurers or with the government of the United States or an agency or instrumentality thereof, in such amounts, with such deductibles, and by such methods, as shall be prudent, in the good faith judgment of the Company, in each case unless the failure to maintain such insurance would not, in the good faith judgment of the Company, have a material adverse effect on the financial condition or results of operations of the Company and its Subsidiaries, taken as a whole. Each such policy of insurance shall (i) name Collateral Agent, on behalf of the Secured Parties, as an additional insured thereunder as its interests may appear, (ii) in the case of each casualty insurance policy, contain a loss payable clause or endorsement, satisfactory in form to the Collateral Agent, that names Collateral Agent, on behalf of the Secured Parties, as the loss payee thereunder and provide for at least thirty days’ prior written notice to Collateral Agent of any modification or cancellation of such policy.

4.10 [RESERVED].

4.11 LIMITATION ON RESTRICTED PAYMENTS.

(A) The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment if, at the time of such Restricted Payment or immediately after giving effect thereto:

(i) a Default or an Event of Default shall have occurred and be continuing;

(ii) the Company is not able to incur at least one dollar of additional Indebtedness (other than Permitted Indebtedness) in compliance with the proviso to Section 4.13(A);

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(iii) such Restricted Payment is a payment described in clause (1), (2) or (3) of the definition of “Restricted Payment”;

(iv) the aggregate amount of Restricted Payments (including such proposed Restricted Payment) made after the Issue Date (the amount expended for such purposes, if other than in cash, being the Fair Market Value of the applicable property at the time of the making thereof) shall exceed the sum of:

(a) 50% of the cumulative Consolidated Net Income (or, if cumulative Consolidated Net Income is a loss, 100% of such loss, expressed as a negative number) of the Company earned during the period beginning on, and including, the first day of the first fiscal quarter of the Company after the Issue Date and ending on, and including, the last day (such day, the “Reference Date”) of the Company’s most recent fiscal quarter ending before the date such Restricted Payment occurs for which financial statements are available (treating such period as a single accounting period);

(b) 100% of the aggregate net cash proceeds received by the Company, and the Fair Market Value (as determined in good faith by the Board of Directors) of other property and marketable securities received, from any Person (other than a Subsidiary of the Company) from the issuance and sale, on or after the Issue Date and on or before the Reference Date, of Qualified Capital Stock of the Company (excluding any net proceeds from an Equity Offering, to the extent used to redeem Securities pursuant to Section 3.01(F));

(c) without duplication of any amounts included in Section 4.11(A)(iv)(b), 100% of the aggregate net cash proceeds of any capital contribution received by the Company from holders of the Company’s Capital Stock on or after the Issue Date and on or before the Reference Date (excluding any net proceeds from an Equity Offering, to the extent used to redeem Securities pursuant to Section 3.01(F));

(d) 100% of the aggregate proceeds received from the issuance of Indebtedness or shares of Disqualified Capital Stock of the Company that have been converted into or exchanged for Qualified Capital Stock of the Company on or after the Issue Date and on or before the Reference Date;

(e) an amount equal to the sum of (I) the net reduction in the Investments (other than Permitted Investments) made by the Company or any of its Restricted Subsidiaries in any Person resulting from repurchases, repayments or redemptions of such Investments by such Person, proceeds realized on the sale of such Investment and proceeds representing the return of capital (excluding dividends and distributions otherwise included in Consolidated Net Income), in each case received by

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the Company or any of its Restricted Subsidiaries, and (II) to the extent such Person is an Unrestricted Subsidiary, the portion (proportionate to the Company’s equity interest in such Unrestricted Subsidiary) of the Fair Market Value of such Unrestricted Subsidiary at the time such Unrestricted Subsidiary is designated a Restricted Subsidiary; provided, however, that the foregoing sum in this Section 4.11(A)(iv)(e) shall not exceed, in the case of any such Person or Unrestricted Subsidiary, the amount of Investments (excluding Permitted Investments) previously made (and treated as a Restricted Payment) by the Company or any of its Restricted Subsidiaries in such Person or Unrestricted Subsidiary.

(B) Notwithstanding anything to the contrary herein, Section 4.11(A) shall not prohibit any of the following:

(i) the payment of any dividend or other distribution or redemption within 60 days after the date of declaration of such dividend or call for redemption, if such payment would have been permitted on the date of declaration or call for redemption;

(ii) the acquisition of any shares of Qualified Capital Stock of the Company, either (1) solely in exchange for other shares of Qualified Capital Stock of the Company or (2) through the application of net proceeds of a sale for cash (other than to a Subsidiary of the Company) of shares of Qualified Capital Stock of the Company or a cash capital contribution received by the Company from holders of the Company’s Capital Stock within 90 days after such exchange, sale or receipt of such cash capital contribution;

(iii) the acquisition of any Indebtedness of the Company or the Guarantors that is either (i) senior unsecured Indebtedness or Indebtedness secured by a Lien on the Collateral that is junior to the Lien securing the Obligations or (ii) subordinate or junior in right of payment to the Securities or a Subsidiary Guarantee (in each case, a “Subordinated Obligation”), either (1) solely in exchange for shares of Qualified Capital Stock of the Company; or (2) through the application of (a) net proceeds of a sale for cash (other than to a Subsidiary of the Company) of shares of Qualified Capital Stock of the Company or a cash capital contribution received by the Company from holders of the Company’s Capital Stock within 60 days after such sale or receipt of such cash capital contribution or (b) Refinancing Indebtedness;

(iv) an Investment either (1) solely in exchange for shares of Qualified Capital Stock of the Company or (2) through the application of the net proceeds of a sale for cash (other than to a Subsidiary of the Company) of shares of Qualified Capital Stock of the Company or a cash capital contribution received by the Company from holders of the Company’s Capital Stock within 90 days after such sale or receipt of such cash capital contribution;

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(v) if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition of shares of Capital Stock of the Company from employees, former employees, directors or former directors of the Company or of its Restricted Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including, without limitation, employment agreements) or plans (or amendments thereto) or other arrangements approved by the Board of Directors under which such shares were granted, issued or sold or such other repurchases or acquisitions as may be approved by the Board of Directors; provided, however, that the aggregate amount of such repurchases and other acquisitions in any calendar year shall not exceed $1,000,000 (with any unused amounts in any calendar year being permitted to be carried over into succeeding calendar years); provided further, that such amount in any calendar year may be increased by an amount not to exceed the net cash proceeds of key-person life insurance policies received by the Company after the Issue Date;

(vi) repurchases of Capital Stock deemed to occur upon exercise of stock options, warrants or other similar rights, if such Capital Stock represents a portion of the exercise price of such options, warrants or other similar rights;

(vii) payments of scheduled dividends on Disqualified Capital Stock of any Restricted Subsidiary, the incurrence or issuance of which was permitted by this Indenture;

(viii) cash payments in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Capital Stock of the Company;

(ix) payments or distributions to dissenting stockholders of Capital Stock of the Company pursuant to applicable law, pursuant to or in connection with a consolidation, merger or transfer of assets that complies with the this Indenture;

(x) cash dividends on the Company’s 7% cumulative convertible Preferred Stock outstanding on the Issue Date in an amount not to exceed $75,000 per year;

(xi) the purchase, repurchase, redemption, defeasance or other acquisition or retirement for value of any Subordinated Obligation after a “change of control” in accordance with a provision similar to Section 3.09 (at a purchase price not greater than 101% of the principal amount of the Indebtedness) or an “asset sale” or “event of loss” in accordance with provisions similar to Section 3.08 (at a purchase price not greater than 100% of the principal amount of the Indebtedness), in each case, plus accrued and unpaid interest; provided that, prior to or simultaneously with such purchase,

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repurchase, redemption, defeasance or other acquisition or retirement, the Company has made the Fundamental Change offer in accordance with Section 3.08 or the Asset Sale offer in accordance with Section 3.09, as the case may be, and has completed the repurchase or redemption of all such notes validly tendered for payment in connection with such offer; and

(xii) other Investments and the purchase, repurchase, redemption, defeasance or other acquisition or retirement for value of any Subordinated Obligation in an amount not to exceed $25,000,000 in the aggregate after the Issue Date.

(C) In determining the aggregate amount of Restricted Payments made after the Issue Date in accordance with Section 4.11(A)(iii), amounts expended pursuant to Sections 4.11(B)(i) shall be included in the calculation.

4.12 LIMITATIONS ON TRANSACTIONS WITH AFFILIATES.

(A) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property or the rendering of any service) with, or for the benefit of, any of its Affiliates (each an “Affiliate Transaction”), other than:

(i) Affiliate Transactions permitted by Section 4.12(B); and

(ii) Affiliate Transactions on terms that are no less favorable than those that might reasonably have been obtained in a comparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate of the Company or such Restricted Subsidiary.

With respect to Affiliate Transactions (other than those described in Section 4.12(B)) completed in any fiscal quarter of the Company, the Company shall deliver an Officers’ Certificate to the Trustee within 10 Business Days of the end of such fiscal quarter certifying that such transactions are in compliance with Section 4.12(A)(ii) (it being understood that such officer may rely on a third-party expert in arriving at any such determination). All Affiliate Transactions (and each series of related Affiliate Transactions which are similar or part of a common plan) involving aggregate payments or other property with a Fair Market Value in excess of $500,000 shall be approved by a majority of the members of the Board of Directors (including a majority of the disinterested members thereof), such approval to be evidenced by a Board Resolution stating that such Board of Directors has determined that such transaction complies with the foregoing provisions. If the Company or any Restricted Subsidiary of the Company enters into an Affiliate Transaction (or a series of related Affiliate Transactions related to a common plan) that involves an aggregate Fair Market Value of more than $5,000,000, then the Company shall, prior to the consummation thereof, obtain a favorable opinion as to the fairness of the financial terms of such transaction or series of related transactions to

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the Company or the relevant Restricted Subsidiary, as the case may be, from an Independent Financial Advisor and file a copy of the same with the Trustee.

(B) Notwithstanding anything to the contrary herein, the restrictions set forth in Section 4.12(A) shall not apply to the following:

(i) loans, advances, fees and compensation (including bonuses) paid to, and indemnity provided on behalf of, officers, directors, employees or consultants of the Company or any of its Restricted Subsidiaries as determined in good faith by the Board of Directors or senior management;

(ii) transactions exclusively between or among the Company and any of its Restricted Subsidiaries or exclusively between or among such Restricted Subsidiaries, provided such transactions are not otherwise prohibited by this Indenture;

(iii) any agreement as in effect as of the Issue Date or any transaction contemplated thereby and any amendment thereto or any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the Holders in any material respect than the original agreement as in effect on the Issue Date;

(iv) Restricted Payments permitted by this Indenture and Permitted Investments of the type described in the definition thereof;

(v) any merger or other transaction with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction or creating a holding company of the Company;

(vi) any employment, stock option, stock repurchase, employee benefit compensation, business expense reimbursement, severance, termination or other employment-related agreements, arrangements or plans entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business; and

(vii) the issuance of Qualified Capital Stock of the Company or receipt of capital contributions from holders of the Company’s Capital Stock.

4.13 LIMITATION ON INCURRENCE OF ADDITIONAL INDEBTEDNESS AND THE ISSUANCE OF DISQUALIFIED CAPITAL STOCK.

(A) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume, guarantee, acquire, become liable, contingently or otherwise, with respect to (collectively, “incur”) any Indebtedness (other than Permitted Indebtedness); provided, however, that this Section 4.13(A) shall not prohibit the Company or any Restricted Subsidiary that is or, upon such incurrence, becomes a Guarantor from incurring Indebtedness (including Acquired Indebtedness), if the Consolidated Fixed Charge Coverage Ratio as of the date of such incurrence would

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have been at least 2.5 to 1.0, determined on a pro forma basis (including a pro forma application of the net proceeds from such incurrence), as such Indebtedness had been issued at the beginning of applicable Four-Quarter Period used to calculate such Consolidated Fixed Charge Coverage Ratio.

(B) The Company will not, and will not permit any of its Domestic Restricted Subsidiaries to, directly or indirectly, incur any Indebtedness which by its terms (or by the terms of any agreement governing such Indebtedness) is subordinated in right of payment to any other Indebtedness of the Company or such Domestic Restricted Subsidiary, unless such Indebtedness is also by its terms (or by the terms of any agreement governing such Indebtedness) made expressly subordinate to the Obligations of the Company or such Domestic Restricted Subsidiary under (i) in the case of the Company, the Securities and this Indenture or (ii) in the case of such Domestic Restricted Subsidiary, its Subsidiary Guarantee and this Indenture, in each case, to the same extent and in the same manner as such Indebtedness is subordinated to other Indebtedness of the Company or such Domestic Restricted Subsidiary. Unless otherwise expressly set forth in this Indenture, no Indebtedness will be deemed to be subordinated in right of payment to any other Indebtedness of the Company or any Domestic Restricted Subsidiary solely by virtue of such Indebtedness being unsecured, having a junior lien on any collateral (whether by intercreditor agreement, operation of law, or otherwise), lacking a security interest in any assets that secure other Indebtedness, or lacking one or more guarantees granted to other Indebtedness.

(C) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, issue any Disqualified Capital Stock; provided, however, that this Section 4.13(C) shall not prohibit the Company or any of its Restricted Subsidiaries from issuing Disqualified Capital Stock if the Consolidated Fixed Charge Coverage Ratio as of the date of such issuance would have been at least 2.5 to 1.0, determined on a pro forma basis (including a pro forma application of the net proceeds from such issuance), as such Disqualified Capital Stock had been issued at the beginning of applicable Four-Quarter Period used to calculate such Consolidated Fixed Charge Coverage Ratio.

4.14 LIMITATION ON DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING RESTRICTED SUBSIDIARIES.

The Company will not, and will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or become effective any encumbrance or restriction on the ability of any Restricted Subsidiary of the Company to:

(A) pay dividends or make any other distributions on or in respect of its Capital Stock,

(B) make loans or advances to or pay any Indebtedness or other obligation owed to the Company or any other Restricted Subsidiary of the Company, or

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(C) transfer any of its property or assets to the Company or any other Restricted Subsidiary of the Company,

except, in each case, for such encumbrances or restrictions existing under or by reason of:

(1) applicable law, rule or regulation;

(2) this Indenture, the Notes, the Subsidiary Guarantees and the Collateral Documents;

(3) customary non-assignment provisions of any contract governing a leasehold interest of or any lease of any Restricted Subsidiary of the Company;

(4) any instrument governing Acquired Indebtedness, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person or the properties or assets of the Person so acquired;

(5) agreements existing on the Issue Date to the extent and in the manner such agreements are in effect on the Issue Date;

(6) restrictions on the transfer of assets subject to any Lien permitted under this Indenture;

(7) restrictions imposed by any agreement to sell assets or Capital Stock permitted under this Indenture to any Person pending the closing of such sale;

(8) provisions in joint venture agreements and other similar agreements (in each case relating solely to the respective joint venture or similar entity or the equity interests therein);

(9) restrictions in other Indebtedness incurred in compliance with Section 4.13 (including Permitted Indebtedness), provided that (i) such restrictions, taken as a whole, are, in the good faith judgment of the Board of Directors, no more materially restrictive with respect to such encumbrances and restrictions than those customary in comparable financings and (ii) the Company determines that any such encumbrance or restriction will not materially affect the Company’s ability to make principal, premium, if any, or interest, if any, on payments on the Securities or any Guarantor’s ability to honor its Subsidiary Guarantee in respect thereof; or

(10) an agreement governing Indebtedness incurred to Refinance the Indebtedness issued, assumed or incurred pursuant to an agreement referred to in clause (2), (4), (5) or (6) above, provided that the provisions relating to such encumbrance or restriction contained in any such Indebtedness are no less favorable to the Company in any material respect, as determined by the Board of Directors, than the provisions relating to such encumbrance or restriction contained in agreements referred to in such clause (2), (4), (5) or (6).

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4.15 LIMITATION ON ASSET SALES.

(A) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, consummate an Asset Sale unless:

(i) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale equal to or greater than the Fair Market Value of the assets sold or otherwise disposed of pursuant to such Asset Sale;

(ii) at least 75% of the consideration received by the Company or such Restricted Subsidiary, as the case may be, from such Asset Sale is in the form of cash, Cash Equivalents or Designated Non-Cash Consideration and is received at the time of such Asset Sale; provided, however, that the following shall be deemed to be cash for purposes of this Section 4.15(A)(ii): (a) the amount of any liabilities (as shown on the most recent applicable balance sheet) of the Company or such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Securities) that are assumed by the transferee of the assets sold or otherwise disposed of pursuant to such Asset Sale and (b) the Fair Market Value of any securities or other assets received by the Company or such Restricted Subsidiary in exchange for such assets, which securities or assets are converted into cash or Cash Equivalents within 180 days after such Asset Sale; and provided, further, that any sale of transfer of the Designated Assets shall not be subject to the requirements of this Section 4.15(A)(ii); and

(iii) the Company applies, or causes such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale or any Net Loss Proceeds from an Event of Loss, as applicable, within 365 days of receipt thereof, either:

(a) to make an investment in property, plant, equipment or other tangible or intangible non-current assets (including any intellectual property or other rights to manufacture and sell pharmaceuticals) that replace the properties and assets that were the subject of such Asset Sale or Event of Loss, as applicable, or that will be used or useful in a Permitted Business (including, without limitation, expenditures for maintenance, repair or improvement of existing properties and assets and research and development costs and expenses), or to make a capital expenditure, or to acquire all of the Capital Stock of a Person engaged in a Permitted Business; provided that to the extent the subject of the Asset Sale or Event of Loss constituted Collateral, the acquired properties and assets shall be pledged as additional Collateral in accordance with and pursuant to the Collateral Documents;

(b) to repay or repurchase Indebtedness secured by the property or assets that were the subject of the Asset Sale or Event of Loss, as

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applicable, but only to the extent that Indebtedness requires such a repayment or repurchase;

(c) solely with respect to any Asset Sale, to make an offer to repurchase, or to repurchase, Securities pursuant to a Repurchase Upon Asset Sale in accordance with Section 3.09;

(d) solely with respect to any Asset Sale, for any other purpose; provided, however, that the aggregate maximum amount pursuant to which the Company may apply pursuant to this Section 4.15(A)(iii)(d) with respect to all Asset Sales occurring on or after the Issue Date shall not exceed $2,500,000;

(e) to make milestone payments to Hologic under the Makena Agreement; and

(f) any combination of the foregoing.

Notwithstanding the foregoing, the Company shall not be permitted to sell, convey, transfer, lease, assign or otherwise transfer Makena or any rights therein or related thereto, other than the license or sale of rights for jurisdictions outside the Unites States where the Company is not conducting material sales of Makena or related products.

For the avoidance of doubt, if the Company shall, in compliance with Section 4.15(A), make an offer to repurchase, with a specified amount of Net Cash Proceeds, Securities pursuant to a Repurchase Upon Asset Sale in accordance with Section 3.09 and if the aggregate Asset Sale Repurchase Price in respect of all Securities tendered for repurchase pursuant to such Repurchase Upon Asset Sale is less than such specified amount of Net Cash Proceeds, then the excess of such specified amount of Net Cash Proceeds over such aggregate Asset Sale Repurchase Price shall be deemed to have been properly applied by the Company pursuant to Section 4.15(A)(iii).

If, on the date that is 366 days after the receipt of Net Cash Proceeds in connection with an Asset Sale or Net Loss Proceeds in connection with an Event of Loss, as applicable, not all of such Net Cash Proceeds or Net Loss Proceeds, as applicable, were applied pursuant to Section 4.15(A)(iii), then (i) such date shall be deemed to be the date that the Company is required, pursuant to Section 4.15(A)(iii), to make an offer to repurchase Securities; and (ii) the amount (the “Required Offer Amount”) that the Company is required to offer to repurchase Securities pursuant to Section 3.09 shall be the amount of all Net Cash Proceeds and Net Loss Proceeds, as applicable, in respect of all Asset Sales and Events of Loss occurring before such date, that were not theretofore applied pursuant to Section 4.15(A)(iii).

4.16 LIMITATION ON LIENS.

The Company will not, and will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or permit any Liens (other

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than Permitted Liens) of any kind to secure Indebtedness against or upon any property or assets of the Company or any of its Restricted Subsidiaries, whether owned on the Issue Date or acquired after the Issue Date, or any proceeds therefrom, or assign or otherwise convey any right to receive income or profits therefrom. The Company will not, and will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or permit any Liens (other than Permitted Liens) of any kind to secure Indebtedness against or upon any leasehold interests in real property with respect to which the Company or any of its Restricted Subsidiaries is a tenant or subtenant, provided that no Permitted Lien described in clause (6) of the definition thereof shall be permitted unless the Notes or the applicable Subsidiary Guarantee shall also be secured by such leasehold interests pursuant to a Permitted Lien described in clause (15) of the definition thereof.

4.17 CONDUCT OF BUSINESS.

The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, engage in any business that would be material to the Company and its Restricted Subsidiaries taken as a whole, other than a Permitted Business.

4.18 PAYMENTS TO HOLOGIC

The Company shall make a $45,000,000 payment to Hologic on or prior to the first anniversary of the Makena NDA Approval Date; provided that, notwithstanding the foregoing, the Company shall have the ability to modify the amount or timing of such payment so long as the revised payment schedule (i) is not materially less favorable to Securityholders than the royalty schedule under the Makena Agreement as in effect on the Issue Date and (ii) does not increase the total payments to Hologic during the term of the Securities.

4.19 [RESERVED].

4.20 LIMITATION ON SALE AND LEASEBACK TRANSACTIONS.

The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into any Sale and Leaseback Transaction with respect to any property unless:

(A) the Company or such Restricted Subsidiary would be entitled to (i) incur Indebtedness in an amount equal to the Attributable Debt relating to such Sale and Leaseback Transaction pursuant to the proviso to Section 4.13(A) and (ii) incur a Lien on such property securing such Attributable Debt pursuant to Section 4.16;

(B) the net proceeds of such Sale and Leaseback Transaction are at least equal to the Fair Market Value of such property; and

(C) the transfer of assets in such Sale and Leaseback Transaction is treated as an Asset Sale and permitted by, and the Company applies the Net Cash Proceeds of such deemed Asset Sale in compliance with, Section 4.15.

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The foregoing provisions will not apply to transactions (i) among the Company and any of the Guarantors, (ii) among the Guarantors or (iii) among Subsidiaries of the Company that are not Guarantors.

4.21 PAYMENTS FOR CONSENTS.

The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, pay or cause to be paid any consideration to or for the benefit of any Holder for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of this Indenture, the Securities, the Subsidiary Guarantees or any Collateral Document unless such consideration is offered to be paid or is paid to all Holders that consent, waive or agree to amend in the time frame set forth in the solicitation documents relating to such consent, waiver or agreement.

4.22 EXCHANGE OFFER.

(A) The Company and each Guarantor agree, at their own expense, to use their commercially reasonable efforts to: (i) file no later than June 30, 2011, a registration statement under the Securities Act (the “Exchange Offer Registration Statement”) to register, under the Securities Act, the exchange (the “Exchange Offer”) of the Pre-Exchange Securities for the Post-Exchange Securities; (ii) cause the Exchange Offer to be consummated by September 30, 2011.

(B) Each Pre-Exchange Security tendered pursuant to the Exchange Offer in accordance herewith shall be exchanged for a Post-Exchange Security with a principal amount equal to the principal amount of such tendered Pre-Exchange Security. Interest on each Post-Exchange Security will accrue from the most recent date on which interest has been paid on the Pre-Exchange Security, or if no interest has been paid on such note, from the Issue Date.

(C) On the date the Exchange Offer Registration Statement becomes effective under the Securities Act, the Company shall mail, or cause to be mailed, to all Holders of the Securities at their addresses shown in the register of the Registrar, and to beneficial owners as required by applicable law, with a copy thereof to the Trustee, a notice stating that such Exchange Offer Registration Statement has become effective under the Securities Act.

(D) If the Company is unable to consummate the Exchange Offer (including, without limitation, because of any change in law or the interpretation thereof), then the Company shall:

(i) promptly deliver to the Holders and the Trustee written notice thereof; and

(ii) at its expense, (1) within 60 days of becoming aware but no sooner than June 30, 2011, prepare and file a shelf registration statement under the Securities Act covering resales of the Pre-Exchange Notes; (2) use its commercially reasonable efforts to cause such registration statement to become

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effective under the Securities Act as soon as reasonably practicable; and (3) keep such registration statement effective until the earlier of (x) the date all Pre-Exchange Securities are able to be sold by non-affiliates of the Company pursuant to Rule 144(b)(1) under the Securities Act without compliance with the current public information requirements of such rule and (y) the date all Pre-Exchange Securities are resold pursuant to such registration statement.

(E) If (i) the Exchange Offer Registration Statement is not filed on or prior to June 30, 2011 or (ii) the Exchange Offer has not been consummated by September 30, 2011 (each such event referred to in clauses (i) and (ii), a “Registration Default”), then the Company and the Guarantors shall jointly and severally agree to pay to each Holder affected thereby special interest (“Special Interest”) in the same manner and at the same times as other interest payments in an amount equal to 0.25% per annum for the first 90-day period immediately following the occurrence of such Registration Default. The amount of the Special Interest shall increase to 0.50% per annum for the second 90-day period following the occurrence of such Registration Default, 0.75% per annum for the third 90-day period following the occurrence of such Registration Default and 1.00% per annum thereafter for the remaining potion of the Registration Default; provided that the Company and the Guarantors shall in no event be required to pay Special Interest for more than one Registration Default at any given time. Notwithstanding anything to the contrary set forth herein, (1) upon filing of the Exchange Offer Registration Statement, in the case of clause (i) above, (2) upon the consummation of the Exchange Offer, in the case of clause (ii) above, (3) upon the effectiveness of a shelf registration statement required by Section 4.22(D) and only during such time as that shelf registration statement is effective (other than its becoming not effective pursuant to Section 4.22(D)(ii)(3)), or (4) upon the Pre-Exchange Securities becoming saleable without restriction pursuant to Rule 144, the Special Interest payable with respect to the Pre-Exchange Securities as a result of such clause (i) and (ii), as applicable, shall cease. For the avoidance doubt, a Registration Default shall not be considered a Default under Section 6.01(iv) or any other provision of this Indenture, but the failure by the Company and the Guarantors to pay Special Interest to each affected Holder shall be considered a Default under Section 6.01(ii). The Company shall provide notice of (i) when a Registration Default occurs and (ii) when such Special Interest shall cease to be payable.

4.23 INTEREST RESERVE ACCOUNT.

The Company shall establish the Interest Reserve Account prior to the issuance of the Securities and on the Issue Date, the Company shall deposit cash or Cash Equivalents in an amount equal to $27,000,000 into the Interest Reserve Account. The Company shall not be permitted to make withdrawals from the Interest Reserve Account other than for payment of interest on the Securities (it being understood that any amounts remaining in the Interest Reserve Account in the nature of investment income shall be released to the Company after the first two scheduled interest payments are made, and otherwise provided no Default or Event of Default has occurred and is continuing), except as provided in the Interest Reserve Account Control Agreement.

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4.24 ADDITIONAL GUARANTORS TO BECOME PARTY TO COLLATERAL DOCUMENTS.

If any additional Domestic Restricted Subsidiary of the Company becomes a Guarantor after the Issue Date, the Company shall notify the Collateral Agent in writing and as soon as practicable, and in any event within 30 days after the date such Subsidiary becomes a Guarantor, the Company shall cause the new Guarantor to execute a joinder to the applicable Collateral Documents and grant a first priority security interest (subject to Permitted Liens) on the Collateral of such Person in favor of the Collateral Agent for the benefit of the Secured Parties. All security interests provided pursuant this Section 4.24(C) shall be accompanied by such Opinions of Counsel as customarily given by counsel in the relevant jurisdiction. In addition, the Company shall deliver an Officers’ Certificate to the Collateral Agent certifying that the necessary measures have been taken to perfect the security interest in such Collateral in the manner and by the times otherwise required hereunder or under the applicable Collateral Documents.

4.25 NO IMPAIRMENT OF SECURITY INTEREST.

No Obligor shall take any action, or knowingly or negligently omit to take any action, which action or omission could reasonably be expected to have the result of materially impairing the security interest with respect to any material portion of the Collateral in favor of the Collateral Agent for the benefit of the Secured Parties, except for actions or omissions that are permitted by, or not in violation of, this Indenture and the Collateral Documents.

4.26 CERTAIN POST-CLOSING OBLIGATIONS.

As promptly as practicable, and in any event within 90 days after the Issue Date, the Obligors shall deliver the documents and take the actions specified on Schedule 1.

V. SUCCESSORS

5.01 WHEN COMPANY MAY MERGE, ETC.

The Company shall not consolidate with, or merge with or into, or sell, transfer, lease, convey or otherwise dispose of all or substantially all of the property or assets of the Company, or of the Company and its Restricted Subsidiaries taken as a whole, to, another person (other than the Company or a Guarantor), whether in a single transaction or series of related transactions, unless:

(A) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, transfer, lease, conveyance or disposition is made (1) is a corporation organized or existing under the laws of the United States, any state of the United States or the District of Columbia and (2) assumes all the obligations of the Company under (x) the Securities and this Indenture, pursuant to a supplemental indenture reasonably satisfactory in form to the Trustee and (y) the Collateral Documents, by amendment, supplement or other instrument satisfactory in form to the Trustee and the Collateral Agent executed and delivered to the Trustee and the Collateral

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agent, and in connection therewith shall cause such instruments to be filed and recorded in such jurisdictions and take such other actions as may be required by applicable law to perfect or continue the perfection of the Lien created under the Collateral Documents on the Collateral owned by or transferred to such Person;

(B) immediately after giving effect to such transaction or series of transactions, no Default or Event of Default shall exist; and

(C) the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, transfer, lease, conveyance or disposition is made would, on the date of such transaction or series of transactions, after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable Four Quarter Period, be permitted to incur at least one dollar of additional Indebtedness (other than Permitted Indebtedness) in compliance with the proviso to Section 4.13(A).

The Company shall deliver to the Trustee prior to the consummation of the proposed transaction an Officers’ Certificate to the foregoing effect and an Opinion of Counsel (which may rely upon such Officers’ Certificate as to the absence of Defaults and Events of Default) stating that the proposed transaction and such supplemental indenture will, upon consummation of the proposed transaction, comply with this Indenture.

Notwithstanding anything herein to the contrary, the foregoing requirements shall not apply to any transaction or series of transactions involving the sale, transfer, lease, conveyance or disposition of any properties or assets by any Subsidiary to any Guarantor, or the consolidation or merger of any Subsidiary with or into any other Guarantor or the Company.

5.02 SUCCESSOR SUBSTITUTED.

Upon any consolidation, merger or any sale, transfer, lease, conveyance or other disposition of all or substantially all of the property or assets of the Company, or of the Company and its Subsidiaries on a consolidated basis, the successor person formed by such consolidation or into which the Company is merged or to which such sale, transfer, lease, conveyance or other disposition is made shall succeed to, and, except in the case of a lease, be substituted for, and may exercise every right and power of, and shall assume every duty and obligation of, the Company under this Indenture with the same effect as if such successor had been named as the Company herein. When the successor assumes all obligations of the Company hereunder, except in the case of a lease, all obligations of the predecessor shall terminate.

VI. DEFAULTS AND REMEDIES

6.01 EVENTS OF DEFAULT.

An “Event of Default” occurs if:

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(i) the Company fails to pay the principal of, or premium, if any, on, any Security when the same becomes due and payable, whether at maturity, upon Redemption, on a Fundamental Change Repurchase Date with respect to a Repurchase Upon Fundamental Change, on an Asset Sale Repurchase Date with respect to a Repurchase Upon Asset Sale or otherwise;

(ii) the Company fails to pay an installment of interest (including Special Interest required by Section 4.22, if any) on any Security when due, if such failure continues for 30 days after the date when due;

(iii) the Company fails to timely provide a Fundamental Change Notice or Asset Sale Notice, as required by the provisions of this Indenture, if such failure continues for 30 days;

(iv) the Company or any Guarantor fails to comply with any other term, covenant or agreement set forth in the Securities or this Indenture (other than pursuant to Section 4.22) and such failure continues for the period, and after the notice, specified in the last paragraph of this Section 6.01;

(v) the Company or any of its Subsidiaries defaults in the payment when due, after the expiration of any applicable grace period, of principal of, or premium, if any, on Indebtedness for money borrowed, in the aggregate principal amount then outstanding of $5,000,000 or more, or the acceleration of Indebtedness of the Company or any of its Subsidiaries for money borrowed in such aggregate principal amount or more so that it becomes due and payable prior to the date on which it would otherwise become due and payable and such default is not cured or waived, or such acceleration is not rescinded, within 30 days after notice to the Company by the Trustee or to the Company and the Trustee by Holders of at least 25% in aggregate principal amount of the Securities then outstanding, each in accordance with this Indenture;

(vi) the Company or any of its Subsidiaries fails to pay final judgments, the aggregate uninsured portion of which is at least $5,000,000, and such judgments are not paid or discharged within 60 days;

(vii) any Lien or security interest created by any Collateral Document with respect to Collateral in excess of $5,000,000 ceases to be in full force and effect (except (i) as permitted by the terms of this Indenture or the Collateral Documents or (ii) as a result of the release of a Guarantor or the sale or other disposition of the applicable Collateral in a transaction permitted hereunder or under the Collateral Documents);

(viii) except as permitted by this Indenture, any Subsidiary Guarantee of a Significant Subsidiary shall be held in any final, non-appealable judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or any Guarantor that is a Significant Subsidiary, or

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any Person acting on behalf of any Guarantor that is a Significant Subsidiary, shall deny or disaffirm its obligations under its Subsidiary Guarantee;

(ix) the Company or any of its Significant Subsidiaries or any group of the Company’s Subsidiaries that in the aggregate would constitute a Significant Subsidiary of the Company, pursuant to, or within the meaning of, any Bankruptcy Law, insolvency law, or other similar law now or hereafter in effect or otherwise, either:

(A) commences a voluntary case,

(B) consents to the entry of an order for relief against it in an involuntary case,

(C) consents to the appointment of a Custodian of it or for all or substantially all of its property, or

(D) makes a general assignment for the benefit of its creditors; or

(x) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:

(A) is for relief against the Company or any of its Significant Subsidiaries or any group of the Company’s Subsidiaries that in the aggregate would constitute a Significant Subsidiary of the Company in an involuntary case or proceeding, or adjudicates the Company or any of its Significant Subsidiaries or any group of the Company’s Subsidiaries that in the aggregate would constitute a Significant Subsidiary of the Company insolvent or bankrupt,

(B) appoints a Custodian of the Company or any of its Significant Subsidiaries or any group of the Company’s Subsidiaries that in the aggregate would constitute a Significant Subsidiary of the Company for all or substantially all of the property of the Company or any such Significant Subsidiary or any group of the Company’s Subsidiaries that in the aggregate would constitute a Significant Subsidiary of the Company, as the case may be, or

(C) orders the winding up or liquidation of the Company or any of its Significant Subsidiaries or any group of the Company’s Subsidiaries that in the aggregate would constitute a Significant Subsidiary of the Company,

and, in the case of each of the foregoing clauses (A), (B) and (C) of this Section 6.01(x), the order or decree remains unstayed and in effect for at least 90 consecutive days; or

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(xi) the Company defaults under a material provision of the Makena Agreement and the default would, with the giving of notice or the passage of time, give the counterparty to the Makena Agreement the right to foreclose upon any assets securing the Company’s obligations under the Makena Agreement, and such default continues for a period of 30 days without being cured or waived.

The term “Bankruptcy Law” means Title 11, U.S. Code or any similar Federal or State law for the relief of debtors. The term “Custodian” means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.

A Default under clause (iv) above is not an Event of Default until (I) the Trustee notifies the Company, or the Holders of at least 25% in aggregate principal amount of the Securities then outstanding notify the Company and the Trustee, of the Default and (II) the Default is not cured within 60 days after receipt of such notice. Such notice must specify the Default, demand that it be remedied and state that the notice is a “Notice of Default.” If the Holders of at least 25% in aggregate principal amount of the outstanding Securities request the Trustee to give such notice on their behalf, the Trustee shall do so. When a Default is cured, it ceases. For the avoidance of doubt, no failure of the Company or any Restricted Subsidiary to comply with the terms of Section 4.22 may result in a Default or Event of Default, other than upon the failure to pay any Special Interest required thereby.

6.02 ACCELERATION.

If an Event of Default (excluding an Event of Default specified in Section 6.01(ix) or (x) with respect to the Company (but including an Event of Default specified in Section 6.01(ix) or (x) solely with respect to a Significant Subsidiary of the Company or any group of the Company’s Subsidiaries that in the aggregate would constitute a Significant Subsidiary of the Company)) occurs and is continuing, the Trustee by written notice to the Company, or the Holders of at least 25% in aggregate principal amount of the Securities then outstanding by written notice to the Company and the Trustee, may declare the Securities to be immediately due and payable in full. Upon such declaration, the principal of, and any accrued and unpaid interest on, all Securities shall be due and payable immediately. If an Event of Default specified in Section 6.01(ix) or (x) with respect to the Company (excluding, for purposes of this sentence, an Event of Default specified in Section 6.01(ix) or (x) solely with respect to a Significant Subsidiary of the Company or any group of the Company’s Subsidiaries that in the aggregate would constitute a Significant Subsidiary of the Company) occurs, the principal of, and accrued and unpaid interest on, all the Securities shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder. The Holders of a majority in aggregate principal amount of the Securities then outstanding by written notice to the Trustee may rescind or annul an acceleration and its consequences if (A) the rescission would not conflict with any order or decree, (B) all existing Events of Default, except the nonpayment of principal or interest that has become due solely because of the acceleration, have been cured or waived and (C) all amounts due to the Trustee under Section 7.07 have been paid.

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6.03 OTHER REMEDIES.

Notwithstanding anything herein to the contrary, if an Event of Default occurs and is continuing, the Trustee may pursue any available remedy by proceeding at law or in equity to collect the payment of amounts due with respect to the Securities or to enforce the performance of any provision of the Securities or this Indenture and may also direct the Collateral Agent to pursue any available remedy or exercise any rights the Collateral Agent has pursuant to the Pledge and Security Agreement, other Collateral Documents or applicable law.

The Trustee may maintain a proceeding even if it does not possess any of the Securities or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are cumulative.

6.04 WAIVER OF PAST DEFAULTS.

Subject to Sections 6.07 and 11.02, the Holders of a majority in aggregate principal amount of the Securities then outstanding may, by notice to the Trustee, waive any Default or Event of Default and its consequences, other than (A) a Default or Event of Default in the payment of the principal of, or premium, if any, or interest on, any Security, or in the payment of the Redemption Price, the Fundamental Change Repurchase Price or the Asset Sale Repurchase Price (or accrued and unpaid interest, if any, payable as herein provided, upon Redemption, Repurchase Upon Fundamental Change or Repurchase Upon Asset Sale) or (B) any Default or Event of Default in respect of any provision of this Indenture or the Securities which, under Section 11.02, cannot be modified or amended without the consent of the Holder of each outstanding Security affected. When a Default or an Event of Default is waived, it is cured and ceases. This Section 6.04 shall be in lieu of TIA § 316(a)(1)(B), and, as permitted by the TIA, TIA § 316(a)(1)(B) is hereby expressly excluded from this Indenture.

6.05 CONTROL BY MAJORITY.

The Holders of a majority in aggregate principal amount of the Securities then outstanding may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on it. However, the Trustee may refuse to follow any direction that conflicts with law or this Indenture, is unduly prejudicial to the rights of other Holders or would involve the Trustee in personal liability unless the Trustee is offered indemnity or security satisfactory to it; provided, that the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction. This Section 6.05 shall be in lieu of TIA § 316(a)(1)(A), and, as permitted by the TIA, TIA § 316(a)(1)(A) is hereby expressly excluded from this Indenture.

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6.06 LIMITATION ON SUITS.

Except as provided in Section 6.07, a Securityholder may not institute any proceeding under this Indenture, or for the appointment of a receiver or a trustee, or for any other remedy under this Indenture unless:

(i) the Holder gives to the Trustee written notice of a continuing Event of Default;

(ii) the Holders of at least 25% in aggregate principal amount of the Securities then outstanding make a written request to the Trustee to pursue the remedy;

(iii) such Holder or Holders offer and, if requested, provide to the Trustee indemnity satisfactory to the Trustee against any loss, liability or expense;

(iv) the Trustee does not comply with the request within 60 days after receipt of such notice, request and offer of indemnity; and

(v) during such 60 day period, the Holders of a majority in aggregate principal amount of the Securities then outstanding do not give the Trustee a direction inconsistent with the request.

A Securityholder may not use this Indenture to prejudice the rights of another Securityholder or to obtain a preference or priority over another Securityholder.

6.07 RIGHTS OF HOLDERS TO RECEIVE PAYMENT.

Notwithstanding any other provision of this Indenture, the right of any Holder to receive payment of all amounts due with respect to the Securities, on or after the respective due dates as provided herein, or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of the Holder.

6.08 COLLECTION SUIT BY TRUSTEE.

If an Event of Default specified in Section 6.01(i) or (ii) occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of an express trust against the Company for the whole amount due with respect to the Securities, including any unpaid and accrued interest.

6.09 TRUSTEE MAY FILE PROOFS OF CLAIM.

The Trustee may file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee, any predecessor Trustee and the Securityholders allowed in any judicial proceedings relative to the Company or its creditors or properties.

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The Trustee may collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same, and any custodian, receiver, assignee, trustee, liquidator, sequestrator or similar official in any judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents, advisors and counsel, and any other amounts due the Trustee under Section 7.07.

Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.

6.10 PRIORITIES.

If the Trustee collects any money pursuant to this Article VI, it shall pay out the money or other property in the following order:

First:	to the Trustee for amounts due under Section 7.07 and the Collateral Agent pursuant to the Collateral Documents;
Second:	to Securityholders for all amounts due and unpaid on the Securities, without preference or priority of any kind, according to the amounts due and payable on the Securities; and
Third:	to the Company.

The Trustee, upon prior written notice to the Company, may fix a record date and payment date for any payment by it to Securityholders pursuant to this Section 6.10. At least 15 days before each such record date, the Trustee shall mail to each Holder and the Company a written notice that states such record date and payment date and the amount of such payment.

6.11 UNDERTAKING FOR COSTS.

In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court in its discretion may require the filing by any party litigant in the suit other than the Trustee of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07 or a suit by Holders of more than 10% in aggregate principal amount of the outstanding Securities.

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VII. TRUSTEE

7.01 DUTIES OF TRUSTEE.

(A) If an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.

(B) Except during the continuance of an Event of Default:

(i) the Trustee need perform only those duties that are specifically set forth in this Indenture and no implied covenants or obligations shall be read into this Indenture against the Trustee; and

(ii) in the absence of bad faith, willful misconduct or negligence on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).

(C) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:

(i) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts;

(ii) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.05 or any direction provided by the Company in accordance with the terms of the Indenture; and

(iii) this paragraph does not limit the effect of Section 7.01(B).

(D) Every provision of this Indenture that in any way relates to the Trustee is subject to the provisions of this Section 7.01.

(E) The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.

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7.02 RIGHTS OF TRUSTEE.

(A) Subject to Section 7.01, the Trustee may conclusively rely on any document believed by it to be genuine and to have been signed or presented by the proper person. The Trustee need not investigate any fact or matter stated in the document; if, however, the Trustee shall determine to make such further inquiry or investigation, it shall be entitled during normal business hours to examine the relevant books, records and premises of the Company, personally or by agent or attorney upon reasonable prior notice.

(B) Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate and/or an Opinion of Counsel. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers’ Certificate or Opinion of Counsel.

(C) Any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order, and any resolution of the Board of Directors shall be sufficiently evidenced by a Board Resolution.

(D) The Trustee may consult with counsel, and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.

(E) The Trustee may act through agents or attorneys and shall not be responsible for the misconduct or negligence of any agent or attorney appointed with due care.

(F) The Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its discretion, rights or powers conferred upon it by this Indenture.

(G) The Trustee shall have no duty to inquire as to the performance of the Company with respect to the covenants contained in Article IV. In addition, the Trustee shall not be deemed to have knowledge of a Default or an Event of Default except (I) any Default or Event of Default occurring pursuant to Sections 6.01(i) or (ii) or (II) any Default or Event of Default of which a Responsible Officer of the Trustee shall have received written notification or obtained actual knowledge. Delivery of reports, information and documents to the Trustee under Article IV (other than Sections 4.04 and 4.07) is for informational purposes only and the Trustee’s receipt of the foregoing shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely on Officers’ Certificates).

(H) The Trustee shall be under no obligation to exercise any of the rights or powers vested by this Indenture at the request or direction of any of the Holders pursuant to this Indenture unless such Holders shall have offered to the Trustee security or

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indemnity satisfactory to the Trustee against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction.

(I) The rights, privileges, protections, immunities and benefits given to the Trustee, including without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder.

(J) The Trustee may request that the Company deliver an Officers’ Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officers’ Certificate may be signed by any person authorized to sign an Officers’ Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded.

(K) Any permissive right of the Trustee to take or refrain from taking actions enumerated in this Indenture shall not be construed as a duty.

(L) The Trustee shall not be responsible for delays or failures in performance resulting from acts beyond its control.

(M) No provision of this Indenture or any Collateral Document shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or under any Collateral Document or to take or omit to take any action under this Indenture or under any Collateral Document or take any action at the request or direction of Holders if it shall have reasonable grounds for believing that repayment of such funds is not assured to it.

(N) Notwithstanding anything contained herein to the contrary, neither the Trustee nor the Registrar shall be responsible for ascertaining whether any transfer, exchange, redemption or repurchase complies with the registration provisions of or exemptions from the Securities Act, Exchange Act, applicable state securities laws or other applicable law.

(O) To the extent not inconsistent herewith, the rights, protections, immunities and indemnities afforded to the Trustee pursuant to this Indenture also shall be afforded to the Collateral Agent acting pursuant to the Collateral Documents.

7.03 INDIVIDUAL RIGHTS OF TRUSTEE.

The Trustee in its individual or any other capacity may become the owner or pledgee of Securities and may otherwise deal with the Company or any of its Affiliates with the same rights the Trustee would have if it were not Trustee. Any Securities Agent may do the same with like rights. The Trustee, however, must comply with Sections 7.10 and 7.11.

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7.04 TRUSTEE’S DISCLAIMER.

The Trustee makes no representation as to the validity or adequacy of this Indenture, the Collateral Documents or the Securities; the Trustee shall not be accountable for the Company’s use of the proceeds from the Securities; and the Trustee shall not be responsible for any statement in the Securities other than its certificate of authentication.

7.05 NOTICE OF DEFAULTS.

If a Default or Event of Default occurs and is continuing as to which the Trustee has received notice pursuant to the provisions of this Indenture, or as to which a Responsible Officer of the Trustee shall have actual knowledge, then the Trustee shall mail to each Holder a notice of the Default or Event of Default within 90 days after the Trustee has received notice or has actual knowledge thereof unless such Default or Event of Default has been cured or waived; provided, however, that, except in the case of a Default or Event of Default in payment of any amounts due with respect to any Security, the Trustee may withhold such notice if, and so long as it in good faith determines that, withholding such notice is in the interests of Holders.

7.06 REPORTS BY TRUSTEE TO HOLDERS.

Within 60 days after each March 15, beginning with March 15, 2012, the Trustee shall mail to each Securityholder if required by TIA § 313(a) a brief report dated as of such May 15 that complies with TIA § 313(c). In such event, the Trustee also shall comply with TIA § 313(b).

A copy of each report at the time of its mailing to Securityholders shall be mailed by first class mail to the Company and filed by the Trustee with the SEC and each stock exchange, if any, on which the Securities are listed. The Company shall promptly notify the Trustee of the listing or delisting of the Securities on or from any stock exchange.

7.07 COMPENSATION AND INDEMNITY.

The Company shall pay to the Trustee from time to time such compensation for its services as shall be agreed upon in writing. The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The Company shall reimburse the Trustee upon request for all reasonable out-of-pocket expenses incurred by it. Such expenses shall include the reasonable compensation and out-of-pocket expenses of the Trustee’s agents, advisors and counsel.

The Company shall indemnify the Trustee against any and all loss, liability, damage, claim or expense (including the reasonable fees and expenses of counsel and taxes other than those based upon the income of the Trustee) incurred by it in connection with the acceptance or administration of this trust and the performance of its duties hereunder, including the reasonable costs and expenses of defending itself against any claim (whether asserted by the Company, any Holder or any other Person) or liability in connection with the exercise or performance of any of its powers and duties hereunder.

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The Company need not pay for any settlement made without its consent (such consent not to be unreasonably withheld). The Trustee shall notify the Company promptly of any claim for which it may seek indemnification; provided that failure to provide any such notice shall not limit the Company’s obligations under this Section 7.07. The Company need not reimburse any expense or indemnify against any loss or liability incurred by the Trustee through the Trustee’s negligence, bad faith or willful misconduct.

To secure the Company’s payment obligations in this Section 7.07, the Trustee shall have a lien prior to the Securities on all money or property held or collected by the Trustee, except that held in trust to pay amounts due on particular Securities.

The Company shall pay all amounts owing to the Trustee (including in its capacity as Collateral Agent) pursuant to the Collateral Documents.

The obligations of the Company with respect to the Trustee provided for in this Section 7.07 shall survive any resignation or removal of the Trustee and the termination of this Indenture.

When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.01(ix) or (x) occurs, the expenses and the compensation for the services are intended to constitute expenses of administration under any Bankruptcy Law.

7.08 REPLACEMENT OF TRUSTEE.

A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee’s acceptance of appointment as provided in this Section 7.08.

The Trustee may resign by so notifying the Company in writing 30 Business Days prior to such resignation. The Holders of a majority in aggregate principal amount of the Securities then outstanding may remove the Trustee by so notifying the Trustee and the Company in writing and may appoint a successor Trustee with the Company’s consent. The Company may remove the Trustee if:

(i) the Trustee fails to comply with Section 7.10;

(ii) the Trustee is adjudged a bankrupt or an insolvent;

(iii) a receiver or other public officer takes charge of the Trustee or its property; or

(iv) the Trustee becomes incapable of acting.

If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint a successor Trustee.

If a successor Trustee does not take office within 30 days after the retiring Trustee resigns or is removed, the retiring Trustee (at the Company’s expense), the Company or

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the Holders of at least 10% in aggregate principal amount of the outstanding Securities may petition any court of competent jurisdiction for the appointment of a successor Trustee.

If the Trustee fails to comply with Section 7.10, the Company or any Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.

A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Thereupon the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to Securityholders. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee, subject to the lien provided for in Section 7.07.

7.09 SUCCESSOR TRUSTEE BY MERGER, ETC.

If the Trustee consolidates with, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor corporation without any further act shall be the successor Trustee, if such successor corporation is otherwise eligible hereunder.

7.10 ELIGIBILITY; DISQUALIFICATION.

There shall at all times be a Trustee hereunder that is a corporation organized and doing business under the laws of the United States of America or of any state thereof, which Trustee (A) is authorized under such laws to exercise corporate trustee power, (B) is subject to supervision or examination by federal or state authorities and (C) has a combined capital and surplus of at least $100,000,000 as set forth in its most recent published annual report of condition. The Trustee shall comply with TIA § 310(b). Nothing in this Indenture shall prevent the Trustee from filing with the SEC the application referred to in the penultimate paragraph of TIA § 310(b).

7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.

The Trustee shall comply with TIA § 311(a), excluding any creditor relationship listed in TIA § 311(b). A Trustee who has resigned or been removed shall be subject to TIA § 311(a) to the extent indicated.

VIII. SUBSIDIARY GUARANTEES

8.01 SUBSIDIARY GUARANTEES.

(A) The Securities shall be guaranteed by each of the Guarantors (each such guarantee, a “Subsidiary Guarantee”) in accordance with the provisions of this Article VIII.

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(B) Subject to this Article VIII, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of the Securities and the Trustee and Collateral Agent: (i) that the principal of, and interest on, the Securities will be promptly paid in full when due, whether at the Maturity Date, the Redemption Date, the Fundamental Change Repurchase Date, Asset Sale Repurchase Date or other due date, and interest on the overdue principal of and interest and premium, if any, on the Securities, if any, if lawful, and that all other obligations of the Company to the Holders or the Trustee or Collateral Agent hereunder or under the Collateral Documents will be promptly paid in full or performed, all in accordance with the terms of this Indenture; and (ii) in case of any extension of time of payment or renewal of any Securities or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at the Maturity Date, the Redemption Date, the Fundamental Change Repurchase Date, the Asset Sale Repurchase Date or other due date. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.

(C) Subject to this Article VIII, the Guarantors hereby, jointly and severally, agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Securities or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions of this Indenture or of the Securities, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that its Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in this Indenture and the Securities.

(D) If any Holder or the Trustee or Collateral Agent is required by any court or otherwise to return to the Company, any Guarantor or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors any amount paid by any of the foregoing to such Holder or the Trustee or Collateral Agent, then each Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.

(E) Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Trustee or Collateral Agent or the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee or Collateral Agent, on the other hand, (i) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article VI for the purposes of the Subsidiary Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby and (ii) in the event of any declaration of acceleration of such obligations as provided in

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Article VI, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of the Subsidiary Guarantees.

(F) The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary Guarantees. The provisions of this Section 8.01(F) shall in no respect limit the obligations and liabilities of each Guarantor to the Secured Parties and the Holders and each Guarantor shall remain liable to the Secured Parties and the Holders for the full amount guaranteed by such Guarantor hereunder.

8.02 GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN TERMS.

No Guarantor shall consolidate with, or merge with or into, or sell, transfer, lease, convey or otherwise dispose of all or substantially all of its property or assets to another person, whether in a single transaction or series of related transactions, unless:

(A) immediately after giving effect to such transaction or series of related transactions, no Default or Event of Default exists; and

(B) subject to Section 8.03, the surviving person (if not such Guarantor) or the person acquiring such property or assets assumes all the obligations of such Guarantor under this Indenture and its Subsidiary Guarantee pursuant to a supplemental indenture in form satisfactory to the Trustee.

Subject to Section 8.03, if there shall occur any such consolidation, merger, sale, transfer, lease, conveyance or disposition with respect to a Guarantor, then, upon the assumption by the successor person, by supplemental indenture executed and delivered to the Trustee and satisfactory in form to the Trustee, of the Subsidiary Guarantee of such Guarantor and the due and punctual performance of all of the covenants and conditions of this Indenture to be performed by such Guarantor, such successor person shall succeed to and be substituted for such Guarantor with the same effect as if such successor person had been named in this Indenture as a Guarantor. Each Subsidiary Guarantee so issued shall in all respects have the same legal rank and benefit under this Indenture and the Securities as the Subsidiary Guarantees theretofore and thereafter issued in accordance with the terms of this Indenture as though all of such Subsidiary Guarantees had been issued at the date of the execution hereof.

Except as provided in Article V, and notwithstanding Section 8.02(A) and Section 8.02(B), nothing contained in this Indenture or in any of the Securities shall prevent any sale, transfer, lease, conveyance or disposition of all or substantially all of the property or assets of a Guarantor to the Company or another Guarantor or prevent any consolidation or merger of a Guarantor with or into the Company or another Guarantor.

The Company shall deliver to the Trustee prior to the consummation of the foregoing transaction an Officers’ Certificate to the foregoing effect and an Opinion of Counsel (which may rely upon such Officers’ Certificate as to the absence of Defaults and Events of Default) stating that the proposed transaction and such supplemental

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indenture will, upon consummation of the proposed transaction, comply with this Indenture.

8.03 RELEASE OF SUBSIDIARY GUARANTEES.

The Subsidiary Guarantee of a Guarantor will be released, and any Person acquiring assets (including by way of merger or consolidation) or Capital Stock of a Guarantor shall not be required to assume the obligations of such Guarantor:

(A) in connection with any sale, transfer, lease, conveyance or disposition of all or substantially all of the property or assets of such Guarantor (including by way of merger or consolidation) to a Person that is not (either before or after giving effect to such transaction) the Company or a Subsidiary of the Company otherwise permitted by this Indenture;

(B) in connection with any sale of a majority of the Capital Stock of such Guarantor to a Person that is not (either before or after giving effect to such transaction) the Company or a Subsidiary of the Company otherwise permitted by this Indenture; or

(C) if the Company’s obligations under this Indenture and the Securities are discharged in accordance with the terms thereof.

Upon delivery by the Company to the Trustee of an Officers’ Certificate and an Opinion of Counsel to the foregoing effect, the Trustee will execute any documents reasonably requested in order to evidence the release of the Guarantor from its obligations under its Subsidiary Guarantee.

8.04 FRAUDULENT CONVEYANCES.

Each Guarantor, and, by its acceptance of any Security, each Holder, hereby confirms that it is the intention of all such parties that the Subsidiary Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any Subsidiary Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of each Guarantor under its Subsidiary Guarantee shall be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such Guarantor that are relevant under such laws, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under its Subsidiary Guarantee, result in the obligations of such Guarantor under its Subsidiary Guarantee not constituting a fraudulent transfer or conveyance.

8.05 ADDITIONAL SUBSIDIARY GUARANTEES.

If, after the Issue Date, a Person who was not theretofore a wholly owned Domestic Restricted Subsidiary of the Company becomes a wholly owned Domestic Restricted Subsidiary of the Company, then such Person shall, within 15 days after the

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end of the fiscal quarter in which such Person becomes a Guarantor, execute a supplemental indenture giving effect to such Subsidiary Guarantee, and deliver an Opinion of Counsel stating that the proposed transaction and such supplemental indenture will, upon consummation of the proposed transaction, comply with this Indenture.

8.06 EXECUTION AND DELIVERY OF GUARANTY.

The execution by each Guarantor of this Indenture (or a supplemental indenture) evidences the Subsidiary Guarantee of such Guarantor, whether or not the person signing as an officer of the Guarantor still holds that office at the time of authentication of any Security. The delivery of any Security by the Trustee after authentication constitutes due delivery of the Subsidiary Guarantee set forth in this Indenture on behalf of each Guarantor.

IX. SECURITY

9.01 COLLATERAL DOCUMENTS.

(a) The Trustee shall initially act as Collateral Agent. Whether or not so expressly stated therein, in entering into, or taking (or forbearing from) any action under or pursuant to, any Collateral Document, the Collateral Agent shall have all of the rights, immunities, indemnities and other protections granted to it and to the Trustee under this Indenture (in addition to those that may be granted to it under the terms of any Collateral Document or such other agreement or agreements).

(b) In order to secure the due and punctual payment of principal of and interest and premium, if any, on the Securities, the Obligors have entered or will enter into the Collateral Documents to create security interests in the Collateral on a first priority basis (subject to Permitted Liens) in accordance with the terms hereof of the Collateral Documents. In the event of a conflict between the terms of this Indenture and the Collateral Documents, the Indenture shall control.

The Company shall deliver to the Collateral Agent copies of all the Collateral Documents, and will do or cause to be done all such acts and things as may be reasonably required to assure and confirm to the Collateral Agent the security interest in the Collateral contemplated hereby, by the Collateral Documents or any part thereof, as from time to time constituted, so as to render the same available for the security and benefit of this Indenture and of the Securities secured hereby, according to the intent and purposes herein expressed. The Company shall use its commercially reasonable efforts to take any and all actions required to cause the Collateral Documents to create and maintain, as security for the Obligations, a valid and enforceable perfected Lien and security interest in and on all of the Collateral (subject to the terms hereof and of the Collateral Documents), in favor of the Collateral Agent for the benefit of the Secured Parties.

The Company shall use its commercially reasonable efforts to make all filings (including filings of continuation statements and amendments to financing

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statements that may be necessary to continue the effectiveness of such financing statements) and take all other actions as are necessary or required by the Collateral Documents to maintain (at the sole cost and expense of the Company) the security interest created by the Collateral Documents in the Collateral (other than with respect to any Collateral the security interest in which is not required to be perfected or maintained hereunder or under the Collateral Documents) as a perfected security interest with the priority set forth in the Collateral Documents.

(c) Each Holder, by accepting such Security, agrees to all of the terms and provisions of the Collateral Documents, the execution and delivery of each such Collateral Document by the Trustee and by the Collateral Agent (including the provisions providing for the possession, use, release and foreclosure of Collateral) as the same may be in effect or may be amended from time to time in accordance with their terms and this Indenture, and authorizes and directs the Collateral Agent to enter into the Collateral Documents and to perform its obligations and exercise its rights thereunder in accordance therewith.

9.02 OPINIONS OF COUNSEL.

The Company shall furnish to the Trustee and the Collateral Agent:

(a) at the time when this Indenture is qualified under the TIA, Opinion(s) of Counsel to the effect that, in the opinion of such counsel, this Indenture and the grant of a Security Interest in the Collateral intended to be made by each Collateral Document and all other instruments of further assurance or assignment have been properly recorded and filed to the extent necessary to perfect the security interests created by each such Collateral Document;

(b) following qualification of this Indenture under the TIA, within 30 days after February 1 in each year, beginning with March 1, 2012, Opinion(s) of Counsel, dated as of such date, either (1) to the effect that in the opinion of such counsel, such action has been taken with respect to the recordings, filings, re-recordings, and refilings of all financing statements, continuation statements or other instruments of further assurance as is necessary to maintain the security interests of each of the Collateral Documents or (2) to the effect that, in the opinion of such counsel, no such action is necessary to maintain such security interests.

9.03 APPLICATION OF PROCEEDS OF COLLATERAL.

Subject to the terms of the Pledge and Security Agreement and any other Collateral Documents, upon any realization upon the Collateral, the proceeds thereof shall be applied in accordance with Section 6.10 hereof.

9.04 ADDITIONAL COLLATERAL.

(A) Within 60 days following the end of each fiscal quarter, commencing with June 30, 2011, the Company shall (i) notify the Collateral Agent in writing, at the sole cost and expense of the Company, if any Obligor acquires any assets with a Fair Market

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Value individually in excess of $500,000 that would constitute Collateral (other than real property, which shall be the subject of Section 9.04(B)) that are not otherwise automatically subject to a perfected security interest under the Collateral Documents and (ii) to the extent applicable, shall within 60 days of delivery of the notice specified in the foregoing clause (i), and to the extent required hereunder and under the Collateral Documents, execute and deliver to the Collateral Agent such security agreement supplements and other documentation (in form and scope, and covering such additional Collateral on terms consistent with the Pledge and Security Agreement and other Collateral Documents in effect on the Issue Date, and take such additional actions as are necessary to create and fully perfect (except to the extent perfection is not required hereunder or thereunder)) in favor of the Collateral Agent for the benefit of the Secured Parties a valid and enforceable security interest in such Collateral, which shall be free of any other Liens except for Permitted Liens. Any security interest provided pursuant this Section 9.03(A) shall be accompanied by such Opinions of Counsel to the Company as customarily given by counsel in the relevant jurisdiction.

(B) If the Company or any Guarantor (i) owns, on the Issue Date, any fee interest in any land and the related improvements (including fixtures) thereon with a Fair Market Value that exceeds $2,500,000 or (ii) acquires, after the Issue Date, any fee interest in any land and the related improvements (including fixtures) thereon with a Fair Market Value that exceeds $2,500,000 (such interests in clause (i) and (ii) above, the “Premises”), then within 90 days of the Issue Date or the date of acquisition of such land and related improvements, as applicable, to the extent such property does not constitute Excluded Assets:

(i) the Company or such Guarantor shall deliver to the Collateral Agent, as mortgagee, fully executed counterparts of Mortgages, each dated as of the Issue Date, the date of acquisition of such Premises or such later date specified above, as the case may be, duly executed by the Company or the applicable Guarantor, together with related opinions and evidence of the completion (or satisfactory arrangements for the completion) of all recordings and filings of such Mortgage as may be necessary to create a valid, perfected Lien, subject to Permitted Liens, against the properties purported to be covered thereby;

(ii) the Company or such Guarantor shall deliver to the Collateral Agent mortgagee’s title insurance policies in favor of the Collateral Agent, as mortgagee for the benefit of the Secured Parties, in an amount equal to 100% of the Fair Market Value of the Premises purported to be covered by the related Mortgage, insuring that title to such property is marketable and that the interests created by the Mortgage constitute valid Liens thereon free and clear of all Liens, defects and encumbrances other than Permitted Liens; and

(iii) the Company or such Guarantor shall deliver to the Collateral Agent, with respect to each of the covered Premises, the most recent survey of such Premises, together with either (i) an updated survey certification in favor of the Collateral Agent from the applicable surveyor stating that, based on a

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visual inspection of the property and the knowledge of the surveyor, there has been no change in the facts depicted in the survey; or (ii) an affidavit or indemnity from the Company or the applicable Guarantor, as the case may be, stating that to its knowledge, there has been no change in the facts depicted in the survey, other than, in each case, changes that do not materially adversely affect the use by the Company or Guarantor, as applicable, of such Premises for the Company’s or such Guarantor’s business as so conducted, or intended to be conducted, at such Premises and in each case, in form sufficient for the title insurer issuing the title policy to remove the standard survey exception from such policy and provide survey coverage to such policy.

Notwithstanding anything herein to the contrary, the Trustee makes no representation as to the validity, adequacy or sufficiency of the documents listed in clauses (i), (ii) or (iii) of this Section 9.03(B) and assumes no responsibility for their correctness.

(C) Upon payment of the Company’s final payment under the Makena Agreement, the Company shall promptly (and in any event within 15 days following termination or expiration of the Makena Agreement) grant to the Collateral Agent, for the benefit of the Secured Parties, a first priority security interest (subject to Permitted Liens) in all of the Company’s interests in Makena.

9.05 RELEASE OF COLLATERAL.

(a) The Collateral Agent’s Liens upon the Collateral will no longer secure the Securities and Guarantees thereof outstanding under this Indenture or any other Obligations under this Indenture, and the right of the Holders of the Securities and such Obligations to the benefits and proceeds of the Collateral Agent’s Liens on the Collateral will terminate and be automatically discharged without further action by the Trustee, the Collateral Agent or any other Person:

(1) in part, as to all property subject to such Liens which has been taken by eminent domain, condemnation or other similar circumstances;

(2) in whole, upon:

(A) payment in full of the principal of, accrued and unpaid interest and premium, if any, on the Securities, any payment of all other Obligations hereunder or under any Collateral Documents; or

(B) satisfaction and discharge of this Indenture as set forth in Article X hereof; or

(C) legal defeasance or covenant defeasance of this Indenture as set forth in Article X hereof;

(3) in part, as to any property that (A) is sold, transferred or otherwise disposed of by the Company or one of its Restricted Subsidiaries in a transaction not

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prohibited by this Indenture, at the time of such sale, transfer or disposition, to the extent of the interest sold, transferred or disposed of or (B) is owned or at any time acquired by a Guarantor that has been released from its Guarantee of the Securities, concurrently with the release of such Guarantee;

(4) in part, as to any property that constitutes all or substantially all of the Collateral securing the Securities Obligations, with the consent of Holders of 75% in aggregate principal amount of the Securities (including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, Securities); or

(6) in part, as to any property that constitutes less than substantially all of the Collateral securing the Securities Obligations, with the consent of Holders of a majority in aggregate principal amount of the Securities (including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, Securities).

(b) To the extent applicable and where necessary to comply with §314(c) of the TIA, the Company and each Guarantor will furnish to the Trustee, prior to each proposed release of Collateral pursuant to the Collateral Documents and this Indenture:

(A) an Officers’ Certificate requesting such release;

(B) an Officers’ Certificate and an Opinion of Counsel to the effect that all conditions precedent provided for in this Indenture and the Collateral Documents to such release have been complied with;

(C) where applicable, a certificate or opinion of an accountant verifying such conditions precedent that are subject to verification by an accountant; and

(D) a form of such release (which release shall be in form reasonably satisfactory to the Trustee and shall provide that the requested release is without recourse or warranty to the Trustee).

Upon compliance by the Company or the Guarantors, as the case may be, with the conditions precedent set forth above, and upon delivery by the Company or such Guarantor to the Trustee of an Opinion of Counsel to the effect that such conditions precedent have been complied with, the Trustee or the Collateral Agent shall promptly execute and deliver such documents as are provided to the Trustee or the Collateral Agent to cause to be released and reconveyed to the Company, or the Guarantors, as the case may be, the released Collateral.

(c) The release of any Collateral from the terms of the Collateral Documents will not be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Collateral Documents if and to the extent the Collateral is released pursuant to this Indenture, the Collateral Documents or upon the termination of this Indenture.

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9.06 SUITS TO PROTECT THE COLLATERAL.

Subject to the provisions of the Collateral Documents and without limiting the obligations of the Company to protect the security interest of the Collateral Agent in the Collateral, the Trustee shall have the authority (but not the obligation) to direct the Collateral Agent to institute and to maintain such suits and proceedings as to prevent any impairment of the Collateral by any acts which may be unlawful or in violation of any of the Collateral Documents or this Indenture, and such suits and proceedings to preserve or protect its interests and the interests of any Holder in the Collateral (including suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the Liens or be prejudicial to the interests of the Holders).

9.07 CERTAIN TIA REQUIREMENTS.

Following the qualification of this Indenture under the TIA, to the extent applicable, and in addition to any other requirements under this Indenture, the Company will cause §313(b) of the TIA (relating to reports) and §314(d) of the TIA (relating to the release of property or securities from the Liens or relating to the substitution for such Liens of any property or securities to be subjected to the Liens) to be complied with and will furnish to the Trustee, prior to each proposed release of Collateral pursuant to this Indenture and the Collateral Documents, all documents required by §314(d) of the TIA.

9.08 USE OF COLLATERAL.

Subject to the terms of this Indenture and the Collateral Documents, the Company and each Guarantor shall have the right to remain in possession and retain exclusive control of the Collateral, to freely operate the Collateral and to collect, invest and dispose of any income therefrom.

X. DISCHARGE AND DEFEASANCE OF INDENTURE

10.01 LEGAL DEFEASANCE AND COVENANT DEFEASANCE.

(A) The Company may, at its option and at any time, elect to have either Section 10.01(B) or Section 10.01(C) apply to the outstanding Securities upon compliance with the applicable conditions set forth in Section 10.01(D).

(B) Upon the Company’s exercise under Section 10.01(A) of the option applicable to this Section 10.01(B), the Company and the Guarantors shall be deemed to have been released and discharged from their obligations with respect to the outstanding Securities on the date the applicable conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, such Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Securities, which shall thereafter be deemed to be outstanding only for the purposes of the Sections and matters under this Indenture referred to in clauses (i) and (ii)

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below, and to have satisfied all their other obligations under such Securities and this Indenture insofar as such Securities are concerned, except for the following which shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of outstanding Securities to receive solely from the Trust Fund described in Section 10.01(D) and as more fully set forth in Section 10.01(D) payments in respect of the principal of, and premium, if any, interest on such Securities when such payments are due and (ii) Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 2.10, 2.15, 2.16, 2.17, 3.05, 3.06, 4.01, 4.02, 4.05, 7.07 and 7.08 and Article X. The Company may exercise its option under this Section 10.01(B) notwithstanding the prior exercise of its option under Section 10.01(C) below with respect to the Securities.

(C) Upon the Company’s exercise, under Section 10.01(A) of the option applicable to this Section 10.01(C), the Company and its Restricted Subsidiaries shall be released and discharged from their obligations under any covenant contained in Section 5.01(C), Section 4.03 and Sections 4.08 through 4.27, inclusive, with respect to the outstanding Securities on and after the date the conditions set forth below are satisfied (a “Covenant Defeasance”), and the Securities shall thereafter be deemed to be not “outstanding” for the purpose of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance means that, with respect to the outstanding Securities, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default, but, except as specified above, the remainder of this Indenture and such Securities shall be unaffected thereby.

(D) The following shall be the conditions to application of either Section 10.01(B) or Section 10.01(C) to the outstanding Securities:

(i) the Company shall have irrevocably deposited with the Trustee, in trust, for the benefit of the Holders, U.S. Legal Tender or non-callable U.S. Government Obligations or a combination thereof (collectively, the “Trust Funds”), in such amounts and at such times as are sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, and premium, if any, and interest on the outstanding Securities on the stated dates for payment or Redemption, as the case may be;

(ii) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel that the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or since the Issue Date, there has been a change in the applicable federal income tax law, in either case to the effect that the Holders and beneficial owners will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject

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to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;

(iii) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel that the Holders and beneficial owners will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;

(iv) no Default or Event of Default shall have occurred and be continuing on the date of such deposit pursuant to Section 10.01(D)(i) (except such Default or Event of Default resulting the borrowing of funds required to effect such deposit);

(v) such Legal Defeasance or Covenant Defeasance shall not result in a breach of, or constitute a default under any other material agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;

(vi) the Company shall have delivered to the Trustee an Officers’ Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders over any other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others; and

(vii) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance, as applicable, have been complied with.

10.02 TERMINATION OF THE OBLIGATIONS OF THE COMPANY; SATISFACTION AND DISCHARGE.

This Indenture shall cease to be of further effect if (a) either (i) all outstanding Securities (other than Securities replaced pursuant to Section 2.07 hereof) have been delivered to the Trustee for cancellation or (ii) all outstanding Securities have become due and payable at their scheduled maturity or upon Redemption, Repurchase Upon Asset Sale or Repurchase Upon Fundamental Change, or will become due and payable at maturity within one year or will be redeemed within one year on terms reasonably acceptable to the Trustee and in any case the Company has irrevocably deposited with the Trustee or the Paying Agent (if the Paying Agent is not the Company or any of its Affiliates) Trust Funds in such amounts and at such times as are sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, and premium, if any, and interest on the outstanding Securities on the stated dates for payment or Redemption, as the case may be, sufficient to pay all amounts due and owing on all outstanding Securities (other than Securities replaced pursuant to Section 2.07

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hereof) on the Maturity Date or a Redemption Date, Asset Sale Repurchase Date or Fundamental Change Repurchase Date, as the case may be; (b) the Company has paid to the Trustee all other sums payable hereunder by the Company; (c) no Default or Event of Default with respect to the Securities shall exist on the date of such deposit; (d) such deposit will not result in a breach or violation of, or constitute a Default or Event of Default under, this Indenture (other than as a result of the borrowing to fund such deposit) or any other agreement or instrument to which the Company is a party or by which it is bound; and (e) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for herein relating to the satisfaction and discharge of this Indenture have been complied with; provided, however, that Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 2.10, 2.15, 2.16, 2.17, 4.01, 4.02, 4.05, 7.07 and 7.08 and Article X and shall survive any discharge of this Indenture until such time as the Securities have been paid in full and there are no Securities outstanding. Thereafter the Company’s obligations in Sections 7.07 and 7.08 and Article X shall survive.

10.03 APPLICATION OF TRUST MONEY.

The Trustee shall hold in trust all money deposited with it pursuant to Section 10.02 and shall apply such deposited money through the Paying Agent and in accordance with this Indenture to the payment of amounts due on the Securities.

10.04 REPAYMENT TO COMPANY.

The Trustee and the Paying Agent shall promptly notify the Company of, and pay to the Company upon the request of the Company, any excess money held by them at any time. Subject to any applicable abandonment laws, the Trustee and the Paying Agent shall pay to the Company upon the written request of the Company any money held by them for the payment of the principal of, premium, if any, or any accrued and unpaid interest on, the notes that remains unclaimed for two years; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may, at the expense of the Company, cause to be published once in a newspaper of general circulation in the City of New York or cause to be mailed to each Holder, notice stating that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication or mailing, any unclaimed balance of such money then remaining will be repaid to the Company. After payment to the Company, Securityholders entitled to the money must look to the Company for payment as general creditors, subject to applicable law, and all liability of the Trustee and the Paying Agent with respect to such money and payment shall, subject to applicable law, cease.

10.05 REINSTATEMENT.

If the Trustee or Paying Agent is unable to apply any money in accordance with Sections 10.01, 10.02 and 10.03 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the obligations of the Company under this

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Indenture and the Securities shall be revived and reinstated as though no deposit had occurred pursuant to Sections 10.01, 10.02 and 10.03; provided, however, that if the Company has made any payment of amounts due with respect to any Securities because of the reinstatement of its obligations, then the Company shall be subrogated to the rights of the Holders of such Securities to receive such payment from the money held by the Trustee or Paying Agent.

XI. AMENDMENTS

11.01 WITHOUT CONSENT OF HOLDERS.

The Company and the Guarantors, and the Trustee and the Collateral Agent, if applicable, may amend or supplement this Indenture, the Securities or the Collateral Documents without notice to or the consent of any Securityholder:

(i) to comply with Section 5.01;

(ii) to make any changes or modifications to this Indenture necessary in connection with any registration statement filed pursuant to Section 4.22 or the qualification of this Indenture under the TIA;

(iii) to provide additional security for the obligations of the Company in respect of the Securities;

(iv) to comply with Section 8.05 or Section 9.04;

(v) to make such changes as are necessary in connection with any addition or release of Collateral permitted under this Indenture or the Collateral Documents;

(vi) to release a Guarantor as permitted under this Indenture;

(vii) to add to the covenants of the Company described in this Indenture for the benefit of Securityholders or to surrender any right or power conferred upon the Company; and

(viii) to cure any ambiguity, defect, omission or inconsistency in this Indenture, the Securities or the Collateral Documents.

Promptly after an amendment, supplement or waiver under this Section 11.01 becomes effective, the Company shall mail, or cause to be mailed, to the Securityholders a notice briefly describing such amendment, supplement or waiver. Any failure of the Company to mail such notice shall not in any way impair or affect the validity of such amendment, supplement or waiver.

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11.02 WITH CONSENT OF HOLDERS.

The Company, and the Guarantors, and the Trustee and Collateral Agent, if applicable, may amend or supplement this Indenture, the Securities or Collateral Documents without notice to any Securityholder but with the written consent of the Holders of at least a majority in aggregate principal amount of the outstanding Securities. Subject to Sections 6.04 and 6.07, the Holders of a majority in aggregate principal amount of the outstanding Securities may, by notice to the Trustee, waive compliance by the Company with any provision of this Indenture, the Collateral Documents or the Securities without notice to any other Securityholder. Notwithstanding anything herein to the contrary, without the consent of each Holder of each outstanding Security affected, an amendment, supplement or waiver, including a waiver pursuant to Section 6.04, may not:

(i) change the stated maturity of the principal of, or the payment date of any installment of interest on, any Security;

(ii) reduce the principal amount of, or any premium, interest on, any Security;

(iii) change the place, manner or currency of payment of principal of, or any premium, interest on, any Security;

(iv) impair the right to institute suit for the enforcement of any payment on, or with respect to, any Security;

(v) modify, in a manner adverse to Holders, the provisions with respect to the right of Holders pursuant to Article III to require the Company to repurchase Securities once the obligation to repurchase has occurred;

(vi) modify the provisions of Section 2.19 in a manner adverse to Holders;

(vii) reduce the percentage of the aggregate principal amount of the outstanding Securities whose Holders must consent to a modification to or amendment of any provision of this Indenture or the Securities;

(viii) release any Guarantor from any of its obligations under its Subsidiary Guarantee, this Indenture or the Securities, otherwise than in accordance with the terms of this Indenture;

(ix) reduce the percentage of the aggregate principal amount of the outstanding Securities whose Holders must consent to a waiver of compliance with any provision of this Indenture or the Securities or a waiver of any Default or Event of Default; or

(x) modify the provisions of this Indenture with respect to modification and waiver (including waiver of a Default or an Event of

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Default), except to increase the percentage required for modification or waiver or to provide for the consent of each affected Holder.

In addition, without the consent of the Holders of at least 75% of the aggregate principal amount of the outstanding Securities, an amendment, supplement or waiver, including a waiver pursuant to Section 6.04, may not permit the release of all or substantially all of the Collateral, other than in accordance with the terms of the Collateral Documents or this Indenture.

Promptly after an amendment, supplement or waiver under this Section 11.02 becomes effective, the Company shall mail, or cause to be mailed, to Securityholders a notice briefly describing such amendment, supplement or waiver. Any failure of the Company to mail such notice shall not in any way impair or affect the validity of such amendment, supplement or waiver.

It shall not be necessary for the consent of the Holders under this Section 11.02 to approve the particular form of any proposed amendment, supplement or waiver, but it shall be sufficient if such consent approves the substance thereof.

11.03 COMPLIANCE WITH TRUST INDENTURE ACT.

Every amendment, waiver or supplement to this Indenture or the Securities shall comply with the TIA as then in effect.

11.04 REVOCATION AND EFFECT OF CONSENTS.

Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder is a continuing consent by the Holder and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder’s Security, even if notation of the consent is not made on any Security. However, any such Holder or subsequent Holder may revoke the consent as to its Security or portion of a Security if the Trustee receives the notice of revocation before the date the amendment, supplement or waiver becomes effective. An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter binds every Holder.

After an amendment, supplement or waiver becomes effective with respect to the Securities, it shall bind every subsequent Holder.

11.05 NOTATION ON OR EXCHANGE OF SECURITIES.

If an amendment, supplement or waiver changes the terms of a Security, the Trustee may require the Holder of the Security to deliver it to the Trustee. The Trustee may place an appropriate notation on the Security as directed and prepared by the Company about the changed terms and return it to the Holder. Alternatively, if the Company so determines, the Company in exchange for the Security shall issue and the Trustee shall authenticate a new Security that reflects the changed terms. Failure to make the appropriate notation or to issue a new security shall not affect the validity of such amendment.

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11.06 TRUSTEE PROTECTED.

The Trustee shall sign any amendment, supplemental indenture or waiver authorized pursuant to this Article XI; provided, however, that the Trustee need not sign any amendment, supplement or waiver authorized pursuant to this Article XI that adversely affects the Trustee’s rights, duties, liabilities or immunities. The Trustee shall be entitled to receive and conclusively rely upon an Opinion of Counsel as to legal matters and an Officers’ Certificate as to factual matters that any supplemental indenture, amendment or waiver is permitted or authorized pursuant to this Indenture and that all conditions precedent thereto have been satisfied.

XII. MISCELLANEOUS

12.01 TRUST INDENTURE ACT CONTROLS.

If any provision of this Indenture limits, qualifies or conflicts with another provision which is required to be included in this Indenture by the TIA, the required provision of the TIA shall control.

12.02 NOTICES.

Any notice or communication will be deemed if given in writing (i) when delivered in person or when sent by telecopy or electronic mail, (ii) five days after mailing if mailed by first-class mail, (iii) the next Business Day when sent by next day express delivery to the other party’s address stated in this Section 12.02. The Company or the Trustee by notice to the other may designate additional or different addresses for subsequent notices or communications.

Any notice or communication to a Holder shall be mailed by first class mail to its address shown on the register kept by the Registrar or in any other manner that is in accordance with the procedures of the Depositary. Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders.

If a notice or communication is mailed in the manner provided above, it is duly given, whether or not the addressee receives it.

If the Company mails a notice or communication to Holders, it shall mail a copy to the Trustee and each Securities Agent at the same time.

Notices or communications to a Guarantor will be deemed given if given to the Company.

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The Company’s address is:

K-V Pharmaceutical Company

One Corporate Woods Drive

Bridgeton, MO 63044

Attn: Chief Financial Officer

Fax: (314) 646-3751

The Trustee’s address is:

Wilmington Trust FSB

50 South Sixth Street, Suite 1290

Minneapolis, Minnesota 55402-1544

Attn: Corporate Capital Markets—K-V Pharmaceutical Administrator

Fax: (612) 217-5651

E-mail: JSchweiger@wilmingtontrust.com

12.03 COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.

Holders may communicate pursuant to TIA § 312(b) with other Holders with respect to their rights under this Indenture or the Securities. The Company, the Trustee, the Registrar and anyone else shall have the protection of TIA § 312(c).

12.04 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.

Upon any request or application by the Company to the Trustee to take any action under this Indenture, the Company shall furnish to the Trustee (upon which the Trustee may rely):

(i) an Officers’ Certificate stating that, in the opinion of the signatories to such Officers’ Certificate, all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with; and

(ii) an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent have been complied with.

12.05 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.

Each Officers’ Certificate or Opinion of Counsel with respect to compliance with a condition or covenant provided for in this Indenture shall include:

(i) a statement that the person making such certificate or opinion has read such covenant or condition;

(ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;

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(iii) a statement that, in the opinion of such person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and

(iv) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.

Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.

12.06 RULES BY TRUSTEE AND AGENTS.

The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar or Paying Agent may make reasonable rules and set reasonable requirements for their respective functions.

12.07 LEGAL HOLIDAYS.

A “Legal Holiday” is a Saturday, a Sunday or a day on which banking institutions are not required to be open in the City of New York, in the State of New York or in the city in which the Trustee administers its corporate trust business. If a payment date is a Legal Holiday at a place of payment, payment may be made at that place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue on that payment for the intervening period. If a regular record date is a Legal Holiday, the record date shall not be affected.

A “Business Day” is a day other than a Legal Holiday.

12.08 DUPLICATE ORIGINALS.

The parties may sign any number of copies of this Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. Delivery of an executed counterpart by facsimile shall be effective as delivery of a manually executed counterpart thereof.

12.09 GOVERNING LAW.

The internal laws of the State of New York shall govern this Indenture, including the Subsidiary Guarantor, and the Securities.

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12.10 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.

This Indenture may not be used to interpret another indenture, loan or debt agreement of the Company or any of its Subsidiaries. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.

12.11 SUCCESSORS.

All agreements of the Company or any Guarantor in this Indenture and the Securities shall bind its successors. All agreements of the Trustee in this Indenture shall bind its successors.

12.12 SEPARABILITY.

In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby and a Holder shall have no claim therefor against any party hereto.

12.13 TABLE OF CONTENTS, HEADINGS, ETC.

The Table of Contents, Cross-Reference Table and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part hereof and shall in no way modify or restrict any of the terms or provisions hereof.

12.14 CALCULATIONS IN RESPECT OF THE SECURITIES.

In computing any amounts under this Indenture: (a) to the extent relevant, the Company shall use audited financial statements of the Company, its Subsidiaries, any Person that would become a Subsidiary in connection with the transaction that requires the computation and any Person from which the Company or a Subsidiary has acquired an operating business, or is acquiring an operating business in connection with the transaction that requires the computation (each such Person whose financial statements are relevant in computing any particular amount, a “Relevant Person”) for the period or portions of the period to which the computation relates for which audited financial statements are available on the date of computation and unaudited financial statements and other current financial data based on the books and records of the Relevant Person or Relevant Persons, as the case may be, to the extent audited financial statements for the period or any portion of the period to which the computation relates are not available on the date of computation; and (b) the Company shall be permitted to rely in good faith on the financial statements and other financial data derived from the books and records of any Relevant Person that are available on the date of the computation.

[The Remainder of This Page Intentionally Left Blank; Signature Page Follows]

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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the date first above written.

K-V PHARMACEUTICAL COMPANY
By:	/s/ Gregory J. Divis
	Name:	Gregory J. Divis
	Title:	President and CEO

NESHER PHARMACEUTICALS INC., AS A GUARANTOR THER-RX CORPORATION, AS A GUARANTOR NESHER SOLUTIONS USA, INC., AS A GUARANTOR NESHER DISCOVERY SOLUTIONS, INC., AS A GUARANTOR DRUGTECH CORPORATION, AS A GUARANTOR ZERATECH TECHNOLOGIES USA, INC., AS A GUARANTOR FP1096, INC., AS A GUARANTOR
By:	/s/ Gregory J. Divis
	Name:	Gregory J. Divis
	Title:	President

WILMINGTON TRUST FSB, AS TRUSTEE
By:	/s/ Jane Schweiger
	Name:	Jane Schweiger
	Title:	Vice President

EXHIBIT A

[Face of Security]

K-V PHARMACEUTICAL COMPANY

Certificate No.                     

[INSERT ORIGINAL ISSUE DISCOUNT LEGEND AND, AS REQUIRED, PRIVATE

PLACEMENT LEGEND AND GLOBAL SECURITY LEGEND]

12% Senior Secured Note due 2015

CUSIP No.                     

K-V Pharmaceutical Company, a Delaware corporation (the “Company”), for value received, hereby promises to pay to Cede & Co., or its registered assigns, the principal sum of up to                      dollars ($            ) (as such amount may be increased or decreased on Schedule A) on March 15, 2015 and to pay interest thereon, as provided on the reverse hereof, until the principal and any unpaid and accrued interest are paid or duly provided for.

Interest Payment Dates: March 15 and September 15, with the first payment to be made on September 15, 2011.

Record Dates: March 1 and September 1.

The provisions on the back of this certificate are incorporated as if set forth on the face hereof.

IN WITNESS WHEREOF, K-V Pharmaceutical Company has caused this instrument to be duly signed.

K-V PHARMACEUTICAL COMPANY
By:
	Name:
	Title:

Dated:                     

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TRUSTEE’S CERTIFICATE OF AUTHENTICATION

This is one of the Securities referred to in the within-mentioned Indenture.
WILMINGTON TRUST FSB, as Trustee
By:
	Authorized Signatory

Dated:                     

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[REVERSE OF SECURITY]

K-V PHARMACEUTICAL COMPANY

12% Senior Secured Note due 2015

1. Interest. K-V Pharmaceutical Company, a Delaware corporation (the “Company”), promises to pay interest on the principal amount of this Security at the rate per annum equal to 12%, plus, if applicable, interest on defaulted interest as provided in Section 2.12 of the Indenture referred to below. The Company will pay interest, payable semi-annually in arrears, on March 15 and September 15 of each year, with the first payment to be made on September 15, 2011. Interest on the Securities will accrue on the principal amount from, and including, the most recent date to which interest has been paid or, if no interest has been paid, from, and including, March 17, 2011, in each case to, but excluding, the next interest payment date or Maturity Date, as the case may be. Interest will be computed on the basis of a 360-day year of twelve 30-day months.

2. Maturity. The Securities will mature on March 15, 2015.

3. Method of Payment. Except as provided in the Indenture (as defined below), the Company will pay interest on the Securities to the persons who are Holders of record of Securities at the close of business on the record date set forth on the face of this Security next preceding the applicable interest payment date. Holders must surrender Securities to a Paying Agent to collect the principal amount, Redemption Price, Asset Sale Repurchase Price or Fundamental Change Repurchase Price of the Securities, plus, if applicable, accrued and unpaid interest, if any, payable as herein provided upon Redemption, Repurchase Upon Asset Sale or Repurchase Upon Fundamental Change, as the case may be. The Company will pay, in money of the United States that at the time of payment is legal tender for payment of public and private debts, all amounts due in cash with respect to the Securities, which amounts shall be paid (A) in the case this Security is in global form, by wire transfer of immediately available funds to the account designated by the Depositary or its nominee; (B) in the case of a Security that is held, other than global form, by a Holder of more than $10,000,000 in aggregate principal amount of Securities, by wire transfer of immediately available funds to the account specified by such Holder or, if such Holder does not specify an account, by mailing a check to the address of such Holder set forth in the register of the Registrar; and (C) in the case of a Security that is held, other than global form, by a Holder of $5,000,000 or less in aggregate principal amount of Securities, by mailing a check to the address of such Holder set forth in the register of the Registrar.

4. Paying Agent and Registrar. Initially, Wilmington Trust FSB (the “Trustee”) will act as Paying Agent and Registrar. The Company may change any Paying Agent or Registrar without notice.

5. Indenture. The Company issued the Securities under an Indenture dated as of March 17, 2011 (the “Indenture”), between the Company the Guarantors party thereto from time to time and the Trustee. To the extent any of the terms of this Security conflict with the provisions of the Indenture, the provisions of the Indenture shall govern. The terms of the

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Securities include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S. Code §§ 77aaa-77bbbb) (the “TIA”) as amended and in effect from time to time. The Securities are subject to all such terms, and Holders are referred to the Indenture and the TIA for a statement of such terms. To the extent permitted by applicable law, in the event of any inconsistency between the terms of this Security and the terms of the Indenture, the terms of the Indenture will govern. The Securities are general senior obligations of the Company limited to $225,000,000 aggregate principal amount, except as otherwise provided in the Indenture (except for Securities issued in substitution for destroyed, mutilated, lost or stolen Securities). Terms used herein without definition and which are defined in the Indenture have the meanings assigned to them in the Indenture.

6. Redemption.

The Company shall have the right, at the Company’s option, at any time, and from time to time, on a Redemption Date on or after March 15, 2013, to redeem all or any part of the Securities at a price payable in cash equal to the Optional Redemption Price plus (subject to Section 3.01(G) of the Indenture) accrued and unpaid interest, if any, to, but excluding, the Redemption Date.

The Company shall have the right, at the Company’s option, at any time, and from time to time, on a Redemption Date before March 15, 2013, to redeem all or any part of the Securities at a price payable in cash equal to the Provisional Redemption Price plus (subject to Section 3.01(G)) accrued and unpaid interest, if any, to, but excluding, the Redemption Date.

Pursuant to Section 3.01(F) of the Indenture, the Company shall have the right, at the Company’s option, at any time, and from time to time, on a Redemption Date before March 15, 2013, to redeem all or any part of the Securities at a price payable in cash equal to the Equity Offering Redemption Price plus (subject to Section 3.01(G) of the Indenture) accrued and unpaid interest, if any, to, but excluding, the Redemption Date; provided, however, that no such Redemption shall be made pursuant to Section 3.01(F) of the Indenture unless:

(i) such Equity Offering Redemption Price and accrued and unpaid interest are paid solely from the proceeds of one or more Equity Offerings;

(ii) the aggregate principal amount of Securities to be redeemed pursuant to such Redemption, when taken together with the aggregate principal amount of Securities theretofore redeemed pursuant to Section 3.01(F) of the Indenture, may in no event exceed 35% of the principal amount of the Securities initially issued pursuant thereto on the Issue Date;

(iii) at least 65% of the original Securities outstanding immediately prior to such Redemption will remain outstanding immediately after giving effect to such Redemption; and

(iv) such Redemption Date cannot occur on a date that is more than 90 days after the date of closing of the earliest Equity Offering the proceeds of which are to be used to pay such Equity Offering Redemption Price and accrued and unpaid interest.

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7. Notice of Redemption. Notice of Redemption will be mailed at least 30 days but not more than 60 days before the Redemption Date to each Holder of Securities to be redeemed at its address appearing in the security register. Securities in denominations larger than $2,000 principal amount may be redeemed in part but only in integral multiples of $1,000 principal amount.

8. Repurchase at Option of Holder Upon a Fundamental Change. Subject to the terms and conditions of the Indenture, in the event of a Fundamental Change, each Holder of the Securities shall have the right, at the Holder’s option, to require the Company to repurchase such Holder’s Securities pursuant to the terms set forth in the Indenture.

9. Repurchase at Option of Holder Upon Certain Asset Sales. Subject to the terms and conditions of the Indenture, if any Asset Sale shall occur, the Company may elect, or be required, pursuant to Section 3.09 of the Indenture, to make an offer to repurchase Securities at a price, payable in cash, equal to 100% of the principal amount of the Securities (or portions thereof) to be so repurchased (the “Asset Sale Repurchase Price”), plus accrued and unpaid interest, if any, to, but excluding, the Asset Sale Repurchase Date.

10. Denominations, Transfer, Exchange. The Securities are in registered form, without coupons, in minimum denominations of $2,000 principal amount and integral multiples of $1,000 in excess thereof. The transfer of Securities may be registered and Securities may be exchanged as provided in the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate endorsements and transfer documents. No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or similar governmental charge that may be imposed in connection with certain transfers or exchanges. The Company or the Trustee, as the case may be, shall not be required to register the transfer of or exchange any Security (i) during a period beginning at the opening of business 15 days before the mailing of a notice of redemption of the Securities selected for Redemption under Section 3.04 of the Indenture and ending at the close of business on the day of such mailing or (ii) for a period of 15 days before selecting, pursuant to Section 3.03 of the Indenture, Securities to be redeemed or (iii) that has been selected for Redemption or for which a Purchase Notice has been delivered, and not withdrawn, in accordance with the Indenture, except the unredeemed or unrepurchased portion of Securities being redeemed or repurchased in part.

11. Persons Deemed Owners. The registered Holder of a Security may be treated as the owner of such Security for all purposes.

12. Merger or Consolidation. The Company shall not consolidate with, or merge with or into, or sell, transfer, lease, convey or otherwise dispose of all or substantially all of the property or assets of the Company, or of the Company and its Restricted Subsidiaries taken as a whole, to, another person, whether in a single transaction or series of related transactions, unless the conditions of Section 5.01 of the Indenture are satisfied.

13. Amendments, Supplements and Waivers. Subject to certain exceptions, the Indenture or the Securities may be amended or supplemented with the consent of the Holders of at least a majority in aggregate principal amount of the outstanding Securities, and certain

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existing Defaults or Events of Default may be waived with the consent of the Holders of a majority in aggregate principal amount of the Securities then outstanding. In accordance with the terms of the Indenture, the Company, with the consent of the Trustee, may amend or supplement the Indenture or the Securities without notice to or the consent of any Securityholder as set forth in the Indenture.

14. Subsidiary Guarantees. Obligations of the Company under the Indenture and the Securities will be guaranteed by certain of the Company’s Domestic Subsidiaries as provided in Article VIII of the Indenture.

15. Security. Obligations of the Company and the Guarantors under the Indenture and the Securities will be secured as provided in Article IX.

16. [Reserved].

17. Defaults and Remedies. The Indenture contains provisions governing the rights and remedies of Holders upon an Event of Default.

18. Trustee Dealings with the Company. The Trustee under the Indenture, or any banking institution serving as successor Trustee thereunder, in its individual or any other capacity, may make loans to, accept deposits from, and perform services for, the Company or its Affiliates, and may otherwise deal with the Company or its Affiliates, as if it were not Trustee.

19. No Recourse Against Others. No past, present or future director, officer, employee or stockholder, as such, of the Company shall have any liability for any obligations of the Company under the Securities or the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder, by accepting a Security, waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Securities.

20. Authentication. This Security shall not be valid until authenticated by the manual signature of the Trustee or an authenticating agent in accordance with the Indenture.

21. Abbreviations. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entirety), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (Uniform Gifts to Minors Act).

22. Governing Law. THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

THE COMPANY WILL FURNISH TO ANY HOLDER UPON WRITTEN REQUEST AND WITHOUT CHARGE A COPY OF THE INDENTURE. REQUESTS MAY BE MADE TO:

K-V Pharmaceutical Company

A-6

One Corporate Woods Drive

Bridgeton, MO 63044

Attention: Chief Financial Officer

A-7

[FORM OF ASSIGNMENT]

I or we assign to
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER
_________________________________________
(please print or type name and address)
the within Security and all rights thereunder, and hereby irrevocably constitute and appoint
Attorney to transfer the Security on the books of the Company with full power of substitution in the premises.
Dated:
	NOTICE: The signature on this assignment must correspond with the name as it appears upon the face of the within Security in every particular without alteration or enlargement or any change whatsoever and be guaranteed by a guarantor institution participating in the Securities Transfer Agents Medallion Program or in such other guarantee program acceptable to the Trustee.
Signature Guarantee:

A-8

In connection with any transfer of this Security occurring prior to the Resale Restriction Termination Date, the undersigned confirms that it is making, and it has not utilized any general solicitation or general advertising in connection with, the transfer:

[Check One]

(1)	¨	to the Company or any Subsidiary thereof, or
(2)	¨	to a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act of 1933) pursuant to, and in compliance with, the exemption from registration provided by Rule 144A under the Securities Act of 1933, as amended, or
(3)	¨	pursuant to, and in compliance with, an exemption from registration under the Securities Act of 1933, as amended, other than Rule 144A or Rule 144, or
(4)	¨	pursuant to an effective registration statement under the Securities Act of 1933, as amended,

and, unless the box below is checked, the undersigned confirms that this Security is not being transferred to an “affiliate” of the Company (an “Affiliate”) as defined in Rule 144 under the Securities Act of 1933, as amended:

¨ The transferee is an Affiliate of the Company. (If the Security is transferred to an Affiliate, the restrictive legend must remain on the Security for at least two (2) years following the date of the transfer.)

Unless one of the items (1) through (4) is checked, the Trustee will refuse to register any of the Securities evidenced by this certificate in the name of any person other than the registered Holder thereof; provided, however, that if item (3) is checked, the Company or the Trustee may require, prior to registering any such transfer of the Securities, in their sole discretion, such written legal opinions, certifications and other information as the Trustee or the Company have reasonably requested to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act of 1933, as amended. If item (2) is checked, the purchaser must complete the certification below.

If none of the foregoing items are checked, the Trustee or Registrar shall not be obligated to register this Security in the name of any person other than the Holder hereof unless and until the conditions to any such transfer of registration set forth herein and in the Indenture shall have been satisfied.

Dated:	Signed:
		(Sign exactly as name appears on the other side of this Security)

Signature Guarantee:                                                                                                                           

A-9

TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED

The undersigned represents and warrants that it is purchasing this Security for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, as amended, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A and acknowledges that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.

Dated:
	NOTICE:     To be executed by an executive officer

A-10

PURCHASE NOTICE

Certificate No. of Security:                     

If you want to elect to have this Security purchased by the Company pursuant to Section 3.08 of the Indenture, check the box: ¨

If you want to elect to have this Security purchased by the Company pursuant to Section 3.09 of the Indenture, check the box: ¨

If you want to elect to have only part of this Security purchased by the Company pursuant to Section 3.08 or Section 3.09 of the Indenture, as applicable, state the principal amount to be so purchased by the Company:

$                     

(in an integral multiple of $1,000, subject to a minimum of $2,000)

Date:	Signature(s):
	(Sign exactly as your name(s) appear(s) on the other side of this Security)
Signature(s) guaranteed by:
	(All signatures must be guaranteed by a guarantor institution participating in the Securities Transfer Agents Medallion Program or in such other guarantee program acceptable to the Trustee.)

A-11

SCHEDULE A

SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL SECURITY¹

The following exchanges of a part of this Global Security for an interest in another Global Security or for Securities in certificated form, have been made:

Date of Exchange Amount of Decrease
in Principal Amount
of this Global
Security Amount of Increase
in Principal amount
of this Global
Security Principal Amount of
this Global Security Following such Decrease or Increase Signature of
Authorized
Signatory of Trustee
or Note Custodian

¹ This is included in Global Securities only.

A-12

EXHIBIT B-1

FORM OF PRIVATE PLACEMENT LEGEND

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER

[(1) REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND

(2) AGREES THAT IT WILL NOT DIRECTLY OR INDIRECTLY ENGAGE IN ANY HEDGING TRANSACTIONS INVOLVING THIS SECURITY UNLESS IN COMPLIANCE WITH THE SECURITIES ACT, AND]^a

[(3)] AGREES FOR THE BENEFIT OF THE COMPANY THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT IS THE LATER OF (X) ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER, AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT ONLY

(A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF,

(B) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH REGULATION S,

(C) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT,

(D) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, OR

(E) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (3)(D) ABOVE, A DULY COMPLETED AND SIGNED CERTIFICATE (THE FORM OF WHICH

^a To be included in Rule 144A Note only.

B-1-1

MAY BE OBTAINED FROM THE TRUSTEE) MUST BE DELIVERED TO THE TRUSTEE. PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (3)(E) ABOVE, THE COMPANY AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

B-1-2

EXHIBIT B-2

FORM OF LEGEND FOR GLOBAL SECURITY

Any Global Security authenticated and delivered hereunder shall bear a legend (which would be in addition to any other legends required in the case of a Restricted Security) in substantially the following form:

THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR DEPOSITARY. THIS SECURITY IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 2.16 OF THE INDENTURE.

B-2-1

EXHIBIT B-3

FORM OF ORIGINAL ISSUE DISCOUNT LEGEND

THIS NOTE HAS BEEN ISSUED WITH “ORIGINAL ISSUE DISCOUNT” (WITHIN THE MEANING OF SECTION 1273 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. UPON WRITTEN REQUEST TO THE CHIEF FINANCIAL OFFICER AT (314) 646-3751 AND ONE CORPORATE WOODS DRIVE, BRIDGETON, MO 63044, THE COMPANY WILL PROMPTLY MAKE AVAILABLE TO ANY HOLDER OF THIS NOTE THE FOLLOWING INFORMATION: (1) THE ISSUE PRICE AND ISSUE DATE OF THE NOTE, (2) THE TOTAL AMOUNT OF ORIGINAL ISSUE DISCOUNT ON THE NOTE AND (3) THE YIELD TO MATURITY ON THE NOTE.

B-2-1

EXHIBIT C-1

Form of Transferor Certificate in Connection with

Transfers Pursuant to Regulation S

K-V Pharmaceutical Company

One Corporate Woods Drive

Bridgeton, MO 63044

Attn: Chief Financial Officer

Wilmington Trust FSB

50 South Sixth Street, Suite 1290

Minneapolis, Minnesota 55402-1544

Attn: Corporate Capital Markets—K-V Pharmaceutical Administrator

Re: K-V Pharmaceutical Company (the “Company”) 12% Senior Secured Notes due 2015 (the “Securities”)

Ladies and Gentlemen:

In connection with the undersigned’s proposed sale of Securities (the “Proposed Sale”), the undersigned hereby confirms that:

1. The offer of the Securities was not made to a person in the United States.

2. Either (1) at the time the buy order was originated, the transferee was outside the United States or the undersigned and any person acting on the undersigned’s behalf reasonably believes that the buyer was outside the United States or (2) the Proposed Sale is to be executed in, on or through the facilities of a “designated offshore securities market” (within the meaning of Regulation S under the Securities Act of 1933, as amended (the “Securities Act”)) and neither the undersigned nor any person acting on the undersigned’s behalf knows that the transaction has been pre-arranged with a buyer in the United States.

3. The offer and sale is not specifically targeted at identifiable groups of U.S. citizens abroad.

4. No “directed selling efforts” (within the meaning of Regulation S under the Securities Act) were or will be made in the United States by the undersigned, an affiliate of the undersigned or any person acting on their behalf.

5. The Proposed Sale is not part of a plan or scheme to evade the registration requirements of the Securities Act.

6. If the undersigned is an affiliate of the Company or a distributor of the Securities solely by virtue of being an officer or director thereof, then the undersigned confirms that no

C-1-1

selling concession, fee or other remuneration has been or will be paid in connection with the Proposed Sale other than the usual and customary broker’s commission that would be received by a person executing such transaction as agent.

7. If the Proposed Sale is made before the “distribution compliance period” (as defined in Regulation S under the Securities Act) has ended, and if the undersigned is a dealer or a person receiving a selling concession, fee or other remuneration in respect of the securities offered or resold, then the undersigned represents that (1) neither the undersigned nor any person acting on the undersigned’s behalf knows that the offeree or buyer of the securities is a “U.S. person” (as defined in Regulation S under the Securities Act) and (2) if the undersigned or any person acting on the undersigned’s behalf knows that the purchaser is a dealer or a person receiving a selling concession, fee or other remuneration in respect of the Securities, then the undersigned or a person acting on the undersigned’s behalf has sent or will send to the purchaser a confirmation or other notice meeting the requirements of Rule 904(b)(2)(ii) of Regulation S under the Securities Act.

8. The undersigned is not a “distributor” (as defined in Regulation S under the Securities Act) or an affiliate of a distributor or of the Company (except solely by virtue of being an officer or director thereof) and is not acting on behalf of any of the foregoing or of the Company.

You, the Company and others are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby.

Very truly yours,
[Name of Transferor]
By:
	Name:
	Title:

C-1-2

EXHIBIT C-2

Form of Transferee Certificate in Connection with

Transfers Pursuant to Regulation S

K-V Pharmaceutical Company

One Corporate Woods Drive

Bridgeton, MO 63044

Attn: Chief Financial Officer

Wilmington Trust FSB

50 South Sixth Street, Suite 1290

Minneapolis, Minnesota 55402-1544

Attn: Corporate Capital Markets—K-V Pharmaceutical Administrator

Re: K-V Pharmaceutical Company (the “Company”) 12% Senior Secured Notes due 2015 (the “Securities”)

Ladies and Gentlemen:

In connection with the undersigned’s proposed purchase of Securities (the “Proposed Purchase”), the undersigned hereby confirms that:

1. The undersigned was outside the United States at the time the offer of the Securities was made to the undersigned.

2. At the time the buy order was originated, the undersigned was outside the United States.

3. The Proposed Purchase is not part of a plan or scheme to evade the registration requirements of the Securities Act of 1933, as amended (the “Securities Act”).

You, the Company and others are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby.

Very truly yours,
[Name of Transferee]
By:
	Name:
	Title:

C-2-1

EXHIBIT D

Form of Transferor Certificate in Connection with

Transfers Pursuant to Rule 144A

K-V Pharmaceutical Company

One Corporate Woods Drive

Bridgeton, MO 63044

Attn: Chief Financial Officer

Wilmington Trust FSB

50 South Sixth Street, Suite 1290

Minneapolis, Minnesota 55402-1544

Attn: Corporate Capital Markets—K-V Pharmaceutical Administrator

Re: K-V Pharmaceutical Company (the “Company”) 12% Senior Secured Notes due 2015 (the “Securities”)

Ladies and Gentlemen:

In connection with our proposed sale of $              aggregate principal amount at maturity of the Securities, we hereby certify that such transfer is being effected pursuant to and in accordance with Rule 144A (“Rule 144A”) under the United States Securities Act of 1933, as amended (the “Securities Act”), and, accordingly, we hereby further certify that the Securities are being transferred to a person that we reasonably believe is purchasing the Securities for its own account, or for one or more accounts with respect to which such person exercises sole investment discretion, and such person and each such account is a “qualified institutional buyer” within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A and such Securities are being transferred in compliance with any applicable blue sky securities laws of any state of the United States.

You and the Company are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.

Very truly yours,
[Name of Transferor]
By:
	Name:
	Title:

D-1

EX-4.2

Exhibit 4.2

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER

(1) REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND

(2) AGREES THAT IT WILL NOT DIRECTLY OR INDIRECTLY ENGAGE IN ANY HEDGING TRANSACTIONS INVOLVING THIS SECURITY UNLESS IN COMPLIANCE WITH THE SECURITIES ACT, AND

(3) AGREES FOR THE BENEFIT OF THE COMPANY THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT IS THE LATER OF (X) ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER, AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT ONLY

(A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF,

(B) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH REGULATION S,

(C) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT,

(D) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, OR

(E) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (3)(D) ABOVE, A DULY COMPLETED AND SIGNED CERTIFICATE (THE FORM OF WHICH MAY BE OBTAINED FROM THE TRUSTEE) MUST BE DELIVERED TO THE TRUSTEE. PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (3)(E) ABOVE, THE COMPANY AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR DEPOSITARY. THIS SECURITY IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE

DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 2.16 OF THE INDENTURE.

THIS NOTE HAS BEEN ISSUED WITH “ORIGINAL ISSUE DISCOUNT” (WITHIN THE MEANING OF SECTION 1273 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. UPON WRITTEN REQUEST TO THE CHIEF FINANCIAL OFFICER AT (314) 646-3751 AND ONE CORPORATE WOODS DRIVE, BRIDGETON, MO 63044, THE COMPANY WILL PROMPTLY MAKE AVAILABLE TO ANY HOLDER OF THIS NOTE THE FOLLOWING INFORMATION: (1) THE ISSUE PRICE AND ISSUE DATE OF THE NOTE, (2) THE TOTAL AMOUNT OF ORIGINAL ISSUE DISCOUNT ON THE NOTE AND (3) THE YIELD TO MATURITY ON THE NOTE.

K-V PHARMACEUTICAL COMPANY

Certificate No. 144A-1

12% Senior Secured Note due 2015

CUSIP No. 482740 AD9

ISIN No. US482740AD91

K-V Pharmaceutical Company, a Delaware corporation (the “Company”), for value received, hereby promises to pay to Cede & Co., or its registered assigns, the principal sum of up to two hundred and twenty five million dollars ($225,000,000) (as such amount may be increased or decreased on Schedule A) on March 15, 2015 and to pay interest thereon, as provided on the reverse hereof, until the principal and any unpaid and accrued interest are paid or duly provided for.

Interest Payment Dates: March 15 and September 15, with the first payment to be made on September 15, 2011.

Record Dates: March 1 and September 1.

The provisions on the back of this certificate are incorporated as if set forth on the face hereof.

IN WITNESS WHEREOF, K-V Pharmaceutical Company has caused this instrument to be duly signed.

K-V PHARMACEUTICAL COMPANY
By:	/s/ Gregory J. Divis
	Name:	Gregory J. Divis
	Title:	President and CEO

Dated: March 17, 2011

TRUSTEE’S CERTIFICATE OF AUTHENTICATION

This is one of the Securities referred to in the within-mentioned Indenture.

WILMINGTON TRUST FSB, as Trustee

By:	/s/ Jane Schweiger
	Authorized Signatory

Dated: March 17, 2011

[REVERSE OF SECURITY]

K-V PHARMACEUTICAL COMPANY

12% Senior Secured Note due 2015

1. Interest. K-V Pharmaceutical Company, a Delaware corporation (the “Company”), promises to pay interest on the principal amount of this Security at the rate per annum equal to 12%, plus, if applicable, interest on defaulted interest as provided in Section 2.12 of the Indenture referred to below. The Company will pay interest, payable semi-annually in arrears, on March 15 and September 15 of each year, with the first payment to be made on September 15, 2011. Interest on the Securities will accrue on the principal amount from, and including, the most recent date to which interest has been paid or, if no interest has been paid, from, and including, March 17, 2011, in each case to, but excluding, the next interest payment date or Maturity Date, as the case may be. Interest will be computed on the basis of a 360-day year of twelve 30-day months.

2. Maturity. The Securities will mature on March 15, 2015.

3. Method of Payment. Except as provided in the Indenture (as defined below), the Company will pay interest on the Securities to the persons who are Holders of record of Securities at the close of business on the record date set forth on the face of this Security next preceding the applicable interest payment date. Holders must surrender Securities to a Paying Agent to collect the principal amount, Redemption Price, Asset Sale Repurchase Price or Fundamental Change Repurchase Price of the Securities, plus, if applicable, accrued and unpaid interest, if any, payable as herein provided upon Redemption, Repurchase Upon Asset Sale or Repurchase Upon Fundamental Change, as the case may be. The Company will pay, in money of the United States that at the time of payment is legal tender for payment of public and private debts, all amounts due in cash with respect to the Securities, which amounts shall be paid (A) in the case this Security is in global form, by wire transfer of immediately available funds to the account designated by the Depositary or its nominee; (B) in the case of a Security that is held, other than global form, by a Holder of more than $10,000,000 in aggregate principal amount of Securities, by wire transfer of immediately available funds to the account specified by such Holder or, if such Holder does not specify an account, by mailing a check to the address of such Holder set forth in the register of the Registrar; and (C) in the case of a Security that is held, other than global form, by a Holder of $5,000,000 or less in aggregate principal amount of Securities, by mailing a check to the address of such Holder set forth in the register of the Registrar.

4. Paying Agent and Registrar. Initially, Wilmington Trust FSB (the “Trustee”) will act as Paying Agent and Registrar. The Company may change any Paying Agent or Registrar without notice.

5. Indenture. The Company issued the Securities under an Indenture dated as of March 17, 2011 (the “Indenture”), between the Company the Guarantors party thereto from time to time and the Trustee. To the extent any of the terms of this Security conflict with the provisions of the Indenture, the provisions of the Indenture shall govern. The terms of the

Securities include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S. Code §§ 77aaa-77bbbb) (the “TIA”) as amended and in effect from time to time. The Securities are subject to all such terms, and Holders are referred to the Indenture and the TIA for a statement of such terms. To the extent permitted by applicable law, in the event of any inconsistency between the terms of this Security and the terms of the Indenture, the terms of the Indenture will govern. The Securities are general senior obligations of the Company limited to $225,000,000 aggregate principal amount, except as otherwise provided in the Indenture (except for Securities issued in substitution for destroyed, mutilated, lost or stolen Securities). Terms used herein without definition and which are defined in the Indenture have the meanings assigned to them in the Indenture.

6. Redemption.

The Company shall have the right, at the Company’s option, at any time, and from time to time, on a Redemption Date on or after March 15, 2013, to redeem all or any part of the Securities at a price payable in cash equal to the Optional Redemption Price plus (subject to Section 3.01(G) of the Indenture) accrued and unpaid interest, if any, to, but excluding, the Redemption Date.

The Company shall have the right, at the Company’s option, at any time, and from time to time, on a Redemption Date before March 15, 2013, to redeem all or any part of the Securities at a price payable in cash equal to the Provisional Redemption Price plus (subject to Section 3.01(G)) accrued and unpaid interest, if any, to, but excluding, the Redemption Date.

Pursuant to Section 3.01(F) of the Indenture, the Company shall have the right, at the Company’s option, at any time, and from time to time, on a Redemption Date before March 15, 2013, to redeem all or any part of the Securities at a price payable in cash equal to the Equity Offering Redemption Price plus (subject to Section 3.01(G) of the Indenture) accrued and unpaid interest, if any, to, but excluding, the Redemption Date; provided, however, that no such Redemption shall be made pursuant to Section 3.01(F) of the Indenture unless:

(i) such Equity Offering Redemption Price and accrued and unpaid interest are paid solely from the proceeds of one or more Equity Offerings;

(ii) the aggregate principal amount of Securities to be redeemed pursuant to such Redemption, when taken together with the aggregate principal amount of Securities theretofore redeemed pursuant to Section 3.01(F) of the Indenture, may in no event exceed 35% of the principal amount of the Securities initially issued pursuant thereto on the Issue Date;

(iii) at least 65% of the original Securities outstanding immediately prior to such Redemption will remain outstanding immediately after giving effect to such Redemption; and

(iv) such Redemption Date cannot occur on a date that is more than 90 days after the date of closing of the earliest Equity Offering the proceeds of which are to be used to pay such Equity Offering Redemption Price and accrued and unpaid interest.

7. Notice of Redemption. Notice of Redemption will be mailed at least 30 days but not more than 60 days before the Redemption Date to each Holder of Securities to be redeemed at its address appearing in the security register. Securities in denominations larger than $2,000 principal amount may be redeemed in part but only in integral multiples of $1,000 principal amount.

8. Repurchase at Option of Holder Upon a Fundamental Change. Subject to the terms and conditions of the Indenture, in the event of a Fundamental Change, each Holder of the Securities shall have the right, at the Holder’s option, to require the Company to repurchase such Holder’s Securities pursuant to the terms set forth in the Indenture.

9. Repurchase at Option of Holder Upon Certain Asset Sales. Subject to the terms and conditions of the Indenture, if any Asset Sale shall occur, the Company may elect, or be required, pursuant to Section 3.09 of the Indenture, to make an offer to repurchase Securities at a price, payable in cash, equal to 100% of the principal amount of the Securities (or portions thereof) to be so repurchased (the “Asset Sale Repurchase Price”), plus accrued and unpaid interest, if any, to, but excluding, the Asset Sale Repurchase Date.

10. Denominations, Transfer, Exchange. The Securities are in registered form, without coupons, in minimum denominations of $2,000 principal amount and integral multiples of $1,000 in excess thereof. The transfer of Securities may be registered and Securities may be exchanged as provided in the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate endorsements and transfer documents. No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or similar governmental charge that may be imposed in connection with certain transfers or exchanges. The Company or the Trustee, as the case may be, shall not be required to register the transfer of or exchange any Security (i) during a period beginning at the opening of business 15 days before the mailing of a notice of redemption of the Securities selected for Redemption under Section 3.04 of the Indenture and ending at the close of business on the day of such mailing or (ii) for a period of 15 days before selecting, pursuant to Section 3.03 of the Indenture, Securities to be redeemed or (iii) that has been selected for Redemption or for which a Purchase Notice has been delivered, and not withdrawn, in accordance with the Indenture, except the unredeemed or unrepurchased portion of Securities being redeemed or repurchased in part.

11. Persons Deemed Owners. The registered Holder of a Security may be treated as the owner of such Security for all purposes.

12. Merger or Consolidation. The Company shall not consolidate with, or merge with or into, or sell, transfer, lease, convey or otherwise dispose of all or substantially all of the property or assets of the Company, or of the Company and its Restricted Subsidiaries taken as a whole, to, another person, whether in a single transaction or series of related transactions, unless the conditions of Section 5.01 of the Indenture are satisfied.

13. Amendments, Supplements and Waivers. Subject to certain exceptions, the Indenture or the Securities may be amended or supplemented with the consent of the Holders of at least a majority in aggregate principal amount of the outstanding Securities, and certain

existing Defaults or Events of Default may be waived with the consent of the Holders of a majority in aggregate principal amount of the Securities then outstanding. In accordance with the terms of the Indenture, the Company, with the consent of the Trustee, may amend or supplement the Indenture or the Securities without notice to or the consent of any Securityholder as set forth in the Indenture.

14. Subsidiary Guarantees. Obligations of the Company under the Indenture and the Securities will be guaranteed by certain of the Company’s Domestic Subsidiaries as provided in Article VIII of the Indenture.

15. Security. Obligations of the Company and the Guarantors under the Indenture and the Securities will be secured as provided in Article IX.

16. [Reserved].

17. Defaults and Remedies. The Indenture contains provisions governing the rights and remedies of Holders upon an Event of Default.

18. Trustee Dealings with the Company. The Trustee under the Indenture, or any banking institution serving as successor Trustee thereunder, in its individual or any other capacity, may make loans to, accept deposits from, and perform services for, the Company or its Affiliates, and may otherwise deal with the Company or its Affiliates, as if it were not Trustee.

19. No Recourse Against Others. No past, present or future director, officer, employee or stockholder, as such, of the Company shall have any liability for any obligations of the Company under the Securities or the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder, by accepting a Security, waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Securities.

20. Authentication. This Security shall not be valid until authenticated by the manual signature of the Trustee or an authenticating agent in accordance with the Indenture.

21. Abbreviations. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entirety), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (Uniform Gifts to Minors Act).

22. Governing Law. THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

THE COMPANY WILL FURNISH TO ANY HOLDER UPON WRITTEN REQUEST AND WITHOUT CHARGE A COPY OF THE INDENTURE. REQUESTS MAY BE MADE TO:

K-V Pharmaceutical Company

One Corporate Woods Drive

Bridgeton, MO 63044

Attention: Chief Financial Officer

[FORM OF ASSIGNMENT]

I or we assign to
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER
_________________________________________
(please print or type name and address)
the within Security and all rights thereunder, and hereby irrevocably constitute and appoint
Attorney to transfer the Security on the books of the Company with full power of substitution in the premises.
Dated:
	NOTICE: The signature on this assignment must correspond with the name as it appears upon the face of the within Security in every particular without alteration or enlargement or any change whatsoever and be guaranteed by a guarantor institution participating in the Securities Transfer Agents Medallion Program or in such other guarantee program acceptable to the Trustee.
Signature Guarantee:

In connection with any transfer of this Security occurring prior to the Resale Restriction Termination Date, the undersigned confirms that it is making, and it has not utilized any general solicitation or general advertising in connection with, the transfer:

[Check One]

(1)	¨	to the Company or any Subsidiary thereof, or
(2)	¨	to a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act of 1933) pursuant to, and in compliance with, the exemption from registration provided by Rule 144A under the Securities Act of 1933, as amended, or
(3)	¨	pursuant to, and in compliance with, an exemption from registration under the Securities Act of 1933, as amended, other than Rule 144A or Rule 144, or
(4)	¨	pursuant to an effective registration statement under the Securities Act of 1933, as amended,

and, unless the box below is checked, the undersigned confirms that this Security is not being transferred to an “affiliate” of the Company (an “Affiliate”) as defined in Rule 144 under the Securities Act of 1933, as amended:

¨ The transferee is an Affiliate of the Company. (If the Security is transferred to an Affiliate, the restrictive legend must remain on the Security for at least two (2) years following the date of the transfer.)

Unless one of the items (1) through (4) is checked, the Trustee will refuse to register any of the Securities evidenced by this certificate in the name of any person other than the registered Holder thereof; provided, however, that if item (3) is checked, the Company or the Trustee may require, prior to registering any such transfer of the Securities, in their sole discretion, such written legal opinions, certifications and other information as the Trustee or the Company have reasonably requested to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act of 1933, as amended. If item (2) is checked, the purchaser must complete the certification below.

If none of the foregoing items are checked, the Trustee or Registrar shall not be obligated to register this Security in the name of any person other than the Holder hereof unless and until the conditions to any such transfer of registration set forth herein and in the Indenture shall have been satisfied.

Dated:	Signed:
		(Sign exactly as name appears on the other side of this Security)

Signature Guarantee:                                                                                                                           

TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED

The undersigned represents and warrants that it is purchasing this Security for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, as amended, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A and acknowledges that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.

Dated:
	NOTICE:     To be executed by an executive officer

PURCHASE NOTICE

Certificate No. of Security:                     

If you want to elect to have this Security purchased by the Company pursuant to Section 3.08 of the Indenture, check the box: ¨

If you want to elect to have this Security purchased by the Company pursuant to Section 3.09 of the Indenture, check the box: ¨

If you want to elect to have only part of this Security purchased by the Company pursuant to Section 3.08 or Section 3.09 of the Indenture, as applicable, state the principal amount to be so purchased by the Company:

$                     

(in an integral multiple of $1,000, subject to a minimum of $2,000)

Date:	Signature(s):
	(Sign exactly as your name(s) appear(s) on the other side of this Security)
Signature(s) guaranteed by:
	(All signatures must be guaranteed by a guarantor institution participating in the Securities Transfer Agents Medallion Program or in such other guarantee program acceptable to the Trustee.)

SCHEDULE A

SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL SECURITY^a

The following exchanges of a part of this Global Security for an interest in another Global Security or for Securities in certificated form, have been made:

Date of
Exchange Amount of Decrease
in Principal Amount
of this Global
Security Amount of Increase
in Principal amount
of this Global
Security Principal Amount of
this Global
Security Following
such Decrease
or Increase Signature of
Authorized
Signatory of Trustee
or Note Custodian

^a This is included in Global Securities only.

EX-10.1

Exhibit 10.1

PURCHASE AGREEMENT

PURCHASE AGREEMENT (the “Agreement”), dated as of March 15, 2011, by and among K-V Pharmaceutical Company, a Delaware corporation, with its principal offices at One Corporate Woods Drive, Bridgeton, Missouri 63044 (the “Company”), the Guarantors named on the signature pages hereto and the investor named on the signature pages hereto (the “Buyer”).

WHEREAS:

A. The Company and the Buyer are executing and delivering this Agreement in reliance upon the exemption from securities registration afforded by Section 4(2) of the Securities Act of 1933, as amended (the “1933 Act”), and Rule 506 of Regulation D (“Regulation D”) as promulgated by the United States Securities and Exchange Commission (the “SEC”) under the 1933 Act.

B. The Company has authorized the issuance and sale of $225,000,000 aggregate principal amount of 12% Senior Secured Notes due 2015 (the “Notes”).

C. The Company has prepared a confidential information memorandum, dated March 2, 2011 (along with all attachments and appendices thereto, the “Confidential Information Memorandum”), relating to the offer and sale of the Notes (the “Offering”).

D. The Buyer wishes to purchase, and the Company wishes to sell, upon the terms and conditions set forth in this Agreement, the aggregate principal amount of Notes set forth below the Buyer’s signature on the signature pages hereto.

E. Upon the fulfillment of certain conditions set forth herein, the Notes will be fully, unconditionally and irrevocably guaranteed (the “Guarantees” and, together with the Notes, the “Securities”) as to payment of principal, interest, and premium, if any, on a senior secured basis, jointly and severally, by each subsidiary of the Company listed on Schedule 1 hereto (collectively, the “Guarantors”).

F. Pursuant to the terms of the Collateral Agreements (as defined in the Indenture (as defined below)), all of the obligations under the Notes, the Indenture and the Guarantees will be secured by a lien and security interest in substantially all of the assets of the Company and the Guarantors (subject to Permitted Liens (as defined in the Indenture)).

NOW, THEREFORE, the Company, the Guarantors and the Buyer hereby agree as follows:

1. PURCHASE AND SALE OF THE NOTES.

(a) Issuance of Notes. The Company has authorized the issuance and sale of $225,000,000 aggregate principal amount of Notes. The Notes will be issued pursuant to an indenture (the “Indenture”), to be dated as of the Closing Date (as defined below), among the Company, the Guarantors and Wilmington Trust FSB, as trustee (in such capacity, the “Trustee”).

(b) Purchase and Sale of the Notes.

(i) In reliance upon the Buyer’s representations and warranties contained in Section 2 hereof and subject to the satisfaction (or waiver) of the conditions set forth in Sections 5 and 6 below, at the closing of the Offering (the “Closing”), the Company shall issue and sell to the Buyer the amount of Notes set forth below the Buyer’s signature on the signature pages hereto.

(ii) In reliance upon the representations and warranties of the Company and the Guarantors contained in Section 3 hereof, and subject to the terms and conditions set forth herein, the Buyer shall purchase the Notes to be purchased by the Buyer at the purchase price set forth in Section 1(b)(v) hereof.

(iii) Simultaneously with the execution of this Agreement, the Company is executing other purchase agreements (the “Other Purchase Agreements”) substantially identical to this Agreement with the other buyers listed on the signature pages thereto (the “Other Buyers”), pursuant to which the Company shall issue and sell additional Notes to such Other Buyers in the respective amounts set forth below their names on the signature pages thereto for the respective purchase prices set forth therein. The amount of Securities being sold hereby and to the Other Buyers shall aggregate to the amount indicated as authorized to be sold pursuant to Section 1(a). The sale of the Notes to the Buyer and the Other Buyers are to be separate sales, and this Agreement and the Other Purchase Agreements are to be separate agreements. The Company shall not be obligated to sell, and Buyer shall not be obligated to buy, any of the Notes unless all the conditions set forth herein shall have been satisfied or waived by the appropriate party.

(iv) Closing. The date and time of the Closing shall be 10:00 a.m., New York City time, on March 17, 2011 (or such later date as is mutually agreed to by the Company and the Buyer (the “Closing Date”)) at the New York, New York offices of Dewey & LeBoeuf LLP, or such other location as the Company and the Buyer shall mutually agree.

(v) Purchase Price; Additional Pricing Terms. The purchase price for the Notes to be purchased by the Buyer at the Closing (the “Purchase Price”) shall be 97% of the aggregate principal amount thereof, as set forth below the Buyer’s signature on the signature pages hereto. Attached hereto as Annex I are additional pricing terms to the Offering of the Notes.

(c) Form of Payment. On the Closing Date,

(i) the Buyer shall pay before 12:00 p.m., New York City time, on such date the Purchase Price to the Closing Agent (as defined below) by wire transfer of immediately available funds in accordance with the wire instructions set forth below the Buyer’s signature on the signature pages hereto; and

(ii) the Company shall deliver or cause to be delivered the Notes that the Buyer is purchasing to the Buyer (for the account of the Buyer that the Buyer shall instruct) duly executed on behalf of the Company and registered in the name of the Buyer or its designee; and

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(iii) the Notes will be represented by one or more definitive global securities in book-entry form and will be deposited on the Closing Date or as soon as practicable thereafter, by or on behalf of the Company, with The Depository Trust Company (“DTC”) or its designated custodian, and registered in the name of Cede & Co.

(d) Closing Mechanics.

(i) One business day prior to the Closing, Jefferies & Company, Inc. (“Jefferies”), as closing agent (in such capacity, the “Closing Agent”), will contact the contact person for the Buyer set forth below the Buyer’s signature on the signature pages hereto to confirm that the Closing is to take place and the closing mechanics set forth herein.

(ii) [reserved]

(iii) In the event that the Buyer shall fail to deliver all or any portion of the Purchase Price on or before 12:00 p.m., New York City time, on the Closing Date as required by Section 1(c), the Closing Agent shall be permitted (but shall not be obligated), in its sole discretion, to fund the Purchase Price of the Notes on behalf of the Buyer; provided, however, that the funding of the purchase of any Notes by the Closing Agent pursuant to this Section 1(c)(ii) shall not relieve the Buyer of any liability that it may have to the Company or the Closing Agent pursuant to this Agreement or for the breach of its obligations under this Agreement. In any such case in which the Closing Agent, in its sole discretion, has elected to fund the Purchase Price of the Notes on behalf of the Buyer, if the Buyer has not fulfilled its obligation to purchase the Notes as set forth herein within two business days of the Closing Date, the Closing Agent shall thereafter be entitled to retain the Notes and, if so requested by the Closing Agent, the Company shall transfer registration of such Notes to or as directed by the Closing Agent.

(iv) In the event that the Closing Agent shall have funded the purchase of the Notes on behalf of the Buyer under the circumstances set forth in clause (ii) above, the Buyer shall be obligated to repay the Closing Agent in exchange for the release of the Notes to the Buyer at a Purchase Price for the Notes equal to 97% of the aggregate principal amount of the Notes, as set forth below the Buyer’s signature on the signature pages hereto, plus accrued interest from the Closing Date.

(v) Funds received by the Closing Agent on behalf of the Company pursuant to this Section 1 will be held in trust and not as property of the Closing Agent. On the Closing Date, the Closing Agent shall disburse such funds (net of the agreed amount of fees and expenses of the Placement Agent (as defined below)) by wire transfer of immediately available funds in accordance with the Company’s written wire instructions to an account specified by the Company, unless otherwise specified by the Company.

2. BUYER’S REPRESENTATIONS AND WARRANTIES.

The Buyer represents and warrants with respect to only itself that:

(a) Organization and Good Standing. If the Buyer is an entity, the Buyer is a corporation, partnership or limited liability company duly incorporated or organized, validly

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existing and in good standing under the laws of the jurisdiction of its incorporation or organization.

(b) Authorization and Power. The Buyer has the requisite power and authority to enter into and perform the Transaction Documents (as defined below) to which the Buyer is a party and to purchase the Securities being sold to it hereunder. If Buyer is an entity, the execution, delivery and performance of the Transaction Documents to which the Buyer is a party by the Buyer and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate or partnership action, and no further consent or authorization of the Buyer or its Board of Directors, stockholders or partners, as the case may be, is required. The Transaction Documents to which the Buyer is a party have been duly authorized, executed and delivered by the Buyer and constitute, or shall constitute when executed and delivered, valid and binding obligations of the Buyer enforceable against the Buyer in accordance with the terms thereof, except as such enforceability may be limited by general principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies.

(c) No Public Sale or Distribution. The Buyer is acquiring the Securities for its own account and not with a view towards, or for resale in connection with, the public sale or distribution thereof, except pursuant to sales registered or exempted under the 1933 Act; provided, however, that by making the representations herein, the Buyer does not agree to hold any of the Securities for any minimum or other specific term and reserves the right to dispose of the Securities at any time in accordance with or pursuant to a registration statement or an exemption under the 1933 Act and pursuant to the applicable terms of the Transaction Documents. The Buyer is acquiring the Securities hereunder in the ordinary course of its business. The Buyer does not presently have any agreement or understanding, directly or indirectly, with any Person to distribute any of the Securities. As used in this Agreement, “Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

(d) QIB and Accredited Investor Status. The Buyer is a “qualified institutional buyer” within the meaning of Rule 144A(a)(1) under the Securities Act and an “accredited investor” within the meaning of Rule 501(a) of Regulation D. The Buyer is not an entity formed for the sole purpose of acquiring the Notes.

(e) Reliance on Exemptions. The Buyer understands that the Securities are being offered and sold to it in reliance on specific exemptions from the registration requirements of United States federal and state securities laws and that the Company is relying in part upon the truth and accuracy of, and the Buyer’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of the Buyer set forth herein in order to determine the availability of such exemptions and the eligibility of the Buyer to acquire the Securities.

(f) Information and Exculpation.

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(i) The Buyer and its advisors, if any, have been furnished with all materials relating to the business, finances, prospects and operations of the Company and materials relating to the offer and sale of the Securities that have been requested by the Buyer as it has deemed necessary or appropriate to conduct its due diligence investigation and has sufficient knowledge and experience in investing in companies similar to the Company in terms of the Company’s stage of development so as to be able to evaluate the risks and merits of its investment in the Company. The Buyer and its advisors, if any, have been afforded the opportunity to ask questions of the Company. The Buyer understands that (i) its investment in the Securities involves a high degree of risk and is able to afford a complete loss of such investment, (ii) it will be required to bear the financial risks of an investment in the Securities for an indefinite period of time and (iii) prior to making an investment in the Securities, the Buyer has concluded that it is able to bear those risks for an indefinite period. The Buyer has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision with respect to its acquisition of the Securities.

(ii) The Buyer acknowledges that it is making such investment based on the results of its own due diligence investigation of the Company, including the representations and warranties being made by the Company in this Agreement, and the Buyer has not relied on any information or advice furnished by or on behalf of Jefferies, as placement agent (in such capacity, the “Placement Agent”), in connection with the transactions contemplated hereby. The Buyer acknowledges that Placement Agent has not made any representations and warranties with respect to the Company or the transactions contemplated hereby, and the Buyer will not rely on any statements made by Placement Agent, orally or in writing, to the contrary. The Buyer further acknowledges that Placement Agent will not be responsible for the ultimate success of its investment in the Company. In light of the foregoing, to the fullest extent permitted by law, the Buyer releases Placement Agent, its employees, officers and affiliates from any liability with respect to the Buyer’s participation in the transactions contemplated hereby.

(iii) The Buyer and its advisors, if any, have had access to and opportunity to review the Confidential Information Memorandum and all filings made by the Company with the SEC pursuant to the Securities Exchange Act of 1934, as amended (the “1934 Act”), on or after March 31, 2010 (the “1934 Act Filings”). Neither any inquiries of the Buyer pursuant to subparagraph (i) of this Section 2(f) nor any other due diligence investigation conducted by the Buyer shall modify, limit or otherwise affect the Buyer’s right to rely on the Company’s and each Guarantor’s representations and warranties contained in this Agreement; provided, however, the Buyer acknowledges and agrees that all representations and warranties made by the Company and each Guarantor in the Agreement are qualified by any and all disclosures made in the 1934 Act Filings, including, without limitation, those set forth under the heading “Risk Factors” and “Cautionary Note Regarding Forward-Looking Statements.”

(g) No Governmental Review. The Buyer understands that no United States federal or state agency or any other government or governmental agency has passed on or made any recommendation or endorsement of the Securities or the fairness or suitability of the investment in the Securities nor have such authorities passed upon or endorsed the merits of the offering of the Securities.

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(h) Transfer or Resale. The Buyer understands that: (i) the Securities have not been and, except as provided in Section 4.22 of the Indenture, are not being registered under the 1933 Act or any state securities laws, and may not be offered for sale, sold, assigned or transferred unless (A) subsequently registered thereunder, (B) the Buyer shall have delivered to the Company an opinion of counsel, in a form reasonably acceptable to the Company, to the effect that such Securities to be sold, assigned or transferred may be sold, assigned or transferred pursuant to an exemption from such registration, or (C) the Buyer provides the Company with reasonable assurance that such Securities can be sold, assigned or transferred pursuant to Rule 144 or Rule 144A promulgated under the 1933 Act, as amended, (or a successor rule thereto) (collectively, “Rule 144”); (ii) any sale of the Securities made in reliance on Rule 144 may be made only in accordance with the terms of Rule 144 and further, if Rule 144 is not applicable, any resale of the Securities under circumstances in which the seller (or the Person) through whom the sale is made) may be deemed to be an underwriter (as that term is defined in the 1933 Act) may require compliance with some other exemption under the 1933 Act or the rules and regulations of the SEC thereunder; and (iii) neither the Company nor any other Person is under any obligation to register the Securities under the 1933 Act or any state securities laws or to comply with the terms and conditions of any exemption thereunder.

(i) Legends. The Buyer understands that upon the original issuance thereof, and until such time as the same is no longer required under applicable requirements of the Securities Act and applicable state securities laws, the certificates or other instruments representing the Notes, and all certificates or other instruments issued in exchange therefor or in substitution thereof, shall bear the legend(s) set forth in the form of Note included in the Indenture, and the Company shall make a notation on its records and give instructions to the Trustee and the transfer agent of the Notes in order to implement the restrictions on transfer set forth and described herein and therein.

(j) No Conflicts. The execution, delivery and performance by the Buyer of this Agreement and the consummation by the Buyer of the transactions contemplated hereby and thereby will not (i) result in a violation of the organizational documents of the Buyer or (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which the Buyer is a party, or (iii) result in a violation of any law, rule, regulation, order, judgment or decree (including federal and state securities laws) applicable to the Buyer, except in the case of clauses (ii) and (iii) above, for such conflicts, defaults, rights or violations which would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability of the Buyer to perform its obligations hereunder.

(k) Residency. The Buyer is a resident of that jurisdiction specified below its signature on the signature pages hereto.

(l) No General Solicitation. The Buyer acknowledges that the Securities were not offered to the Buyer by means of any form of general or public solicitation or general advertising, or publicly disseminated advertisements or sales literature, including (i) any advertisement, article, notice or other communication published in any newspaper, magazine,

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website, or similar media, or broadcast over television or radio, or (ii) any seminar or meeting to which the Buyer was invited by any of the foregoing means of communications.

(m) Brokers. No Person will have, as a result of the transactions contemplated by the Transaction Documents, any valid right, interest or claim against or upon the Company or any Subsidiary (as defined below) for any commission, fee or other compensation pursuant to any agreement, arrangement or understanding entered into by or on behalf of the Buyer.

(n) Filings. If required by applicable securities legislation, regulatory policy or order, or if required or requested by any securities commission, stock exchange or other regulatory authority, at the request of and at the sole expense of the Company, the Buyer shall execute, deliver and file and otherwise assist the Company in filing reports, questionnaires, undertakings and other documents with respect to the issue of the Notes.

(o) United States Federal Taxation. The Buyer understands and acknowledges that the U.S. federal income tax consequences of ownership and disposition of the Notes are not free from doubt. However, the Company and the Buyer, on behalf of itself and any beneficial holder of the Notes, hereby agree, for United States federal income tax purposes, to be bound by the Company’s determination of the issue price of the Notes. The Company agrees to provide promptly to each holder of a Note, upon written request, the amount of original issue discount, if any, the issue price, the issue date, and the yield to maturity with respect to the Notes. Such holder may request such information by writing to the Company at the address provided for notices in Section (8)(f) hereof.

Important Note:

Any discussion of tax matters contained herein is not intended or written by the Company or any of its advisors to be used, and it cannot be used or relied upon, by the Buyer or any other Person for the purpose of avoiding penalties that may be imposed under United States federal income tax law. Any such discussion was written to support the promotion or marketing of the Notes in the offering contemplated by this Agreement.

The Company advises the Buyer to seek advice concerning the tax aspects of and tax considerations involved in acquiring and holding the Notes from an independent tax adviser. The Buyer acknowledges that it has sought such independent tax advice as it has considered necessary to make an informed investment decision with respect to the U.S. federal income tax consequences, as well as with respect to the laws of any state, local or foreign jurisdiction that are applicable to the Buyer, of owning and disposing of the Notes.

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3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE GUARANTORS.

The Company and the Guarantors, jointly and severally, represent and warrant to the Buyer that, subject to the disclosures in the Company’s 1934 Act Filings:

(a) Organization and Qualification. Each of the Company and its “Subsidiaries” (which for purposes of this Agreement means any entity (i) in which the Company, directly or indirectly, owns not less than 25% of the capital stock or holds a corresponding equity or similar interest and (ii) which has operations) is duly incorporated or organized, as the case may be, and validly existing in good standing under the laws of the jurisdiction in which they are incorporated or organized, as applicable, and have the requisite power and authority to own their properties and to carry on their business as now being conducted. Each of the Company and its Subsidiaries is duly qualified as a foreign corporation to do business and is in good standing in every jurisdiction in which its ownership of property or the nature of the business conducted by it makes such qualification necessary, except to the extent that the failure to be so qualified or be in good standing would not reasonably be expected to have a Material Adverse Effect. As used in this Agreement, “Material Adverse Effect” means any material adverse effect on the business, properties, assets, operations, results of operations, condition (financial or otherwise) or prospects of the Company and its Subsidiaries, taken as a whole, or on the transactions contemplated hereby and the other Transaction Documents or by the agreements and instruments to be entered into in connection herewith or therewith, or on the authority or ability of the Company to perform its obligations under the Transaction Documents.

(b) Authorization; Enforcement; Validity.

(i) The Company and each Guarantor has the requisite corporate power and authority to enter into and perform its obligations under this Agreement, the Other Purchase Agreements, the Notes, the Guarantees, the Indenture and the Collateral Documents (as defined in the Indenture) (collectively, the “Transaction Documents”) and to issue the Securities in accordance with the terms hereof and thereof. The execution and delivery of the Transaction Documents by the Company and each Guarantor and the consummation by the Company and each Guarantor of the transactions contemplated hereby and thereby, including, without limitation, the issuance of the Notes and the granting of a security interest in the Collateral (as defined in the Indenture) have been duly authorized by the Company’s and each Guarantor’s Board of Directors and no further filing, consent or authorization is required in connection therewith (other than (i) the filing of appropriate UCC financing statements and analogous registrations with the appropriate states, provinces and other authorities pursuant to the Collateral Documents, (ii) the filing of grant deeds or similar security instruments with the U.S. Copyright Office and the U.S. Patent and Trademark Office, (iii) the filing of a Form D with respect to the Notes as required under Regulation D and (iv) such filings required under applicable securities or “Blue Sky” laws of the states of the United States). This Agreement and the other Transaction Documents have been duly executed and delivered by the Company and each Guarantor, and constitute the legal, valid and binding obligations of the Company and each Guarantor, enforceable against the Company and each Guarantor in accordance with their respective terms, except as such enforceability may be limited by general principles of equity or

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applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies.

(ii) The provisions of each Collateral Document are effective to create, in favor of Wilmington Trust FSB, in its capacity as Collateral Agent (the “Collateral Agent”), for the benefit of the Secured Parties (as defined in the Indenture), legal, valid and enforceable first priority liens (subject to Permitted Liens (as defined in the Indenture)) in the Collateral, and all necessary recordings and filings will be made in all necessary public offices and all other necessary and appropriate action will be taken so that the liens created by the Collateral Documents will constitute perfected first priority liens (with such exceptions as contemplated thereby) on or in the Collateral described therein and all necessary consents to the creation, effectiveness, priority and perfection of each such lien will have been obtained to the extent required under each Collateral Document.

(c) Issuance of the Notes.

(i) The Notes, when issued, will be in the form contemplated by the Indenture. The Notes have been duly and validly authorized by the Company and when issued, authenticated and delivered by the Company against payment thereof by the Buyer as provided herein and in the Indenture, will have been duly executed, issued and delivered and will be legal, valid and binding obligations of the Company, entitled to the benefit of the Indenture and the Collateral Documents, and enforceable against the Company in accordance with their terms, except insofar as such enforceability may be subject to (i) bankruptcy, insolvency, reorganization, receivership, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (ii) general principles of equity (whether applied by a court of law or equity) and the discretion of the court before which any proceeding therefor may be brought.

(ii) The Guarantees have been duly and validly authorized by each of the Guarantors and, when executed and delivered in accordance with the terms of the Indenture and when the Notes have been and when issued, authenticated and delivered by the Company against payment thereof by the Buyer in accordance with the terms of this Agreement and the Indenture and delivered to and paid for in accordance with the terms hereof and thereof, will have been duly executed, issued and delivered and will be legal, valid and binding obligations of the Guarantors, entitled to the benefit of the Indenture and the Collateral Documents, and enforceable against each of the Guarantors in accordance with their terms, except insofar as such enforceability may be subject to (i) bankruptcy, insolvency, reorganization, receivership, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally, and (ii) general principles of equity (whether applied by a court of law or equity) and the discretion of the court before which any proceeding therefor may be brought.

(d) No Conflicts. The execution, delivery and performance of the Transaction Documents by the Company and each Guarantor and the consummation by the Company and each Guarantor of the transactions contemplated hereby and thereby (including, without limitation, the issuance of the Securities) will not (i) result in a violation of any certificate of incorporation, certificate of formation, any certificate of designations or other constituent documents of the Company or any of its Subsidiaries, any capital stock of the Company or any of

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its Subsidiaries or bylaws of the Company or any of its Subsidiaries, or (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which the Company or any of its Subsidiaries is a party, or (iii) result in a violation of any applicable law, rule, regulation, order, judgment or decree (including federal and state securities laws and regulations and the rules and regulations of the New York Stock Exchange (the “Principal Market”)) applicable to the Company or any of its Subsidiaries or by which any property or asset of the Company or any of its Subsidiaries is bound or affected, except in the cases of clauses (ii) and (iii) such as would not reasonably be expected to have a Material Adverse Effect.

(e) Consents. The Company is not required to obtain any consent, authorization or order of, or make any filing or registration with, any court, governmental agency or any regulatory or self-regulatory agency or any other Person in order for it to execute, deliver or perform any of its obligations under or contemplated by the Transaction Documents, in each case in accordance with the terms hereof or thereof (other than (x) any consent, authorization or order that has been obtained as of the date hereof, (y) any filing or registration that has been made as of the date hereof or (z) any filings which may be required to be made by the Company with the SEC, state securities administrators or the Principal Market, subsequent to the Closing; provided that, for purposes of the representation made in this sentence, the Company is assuming and relying upon the accuracy of the relevant representations and agreements of the Buyer herein).

(f) Acknowledgment Regarding Buyer’s Purchase of Securities. The Company acknowledges and agrees that the Buyer is acting solely in the capacity of an arm’s length purchaser with respect to the Transaction Documents and the transactions contemplated hereby and thereby and that no Buyer is (i) an officer or director of the Company, (ii) an “affiliate” of the Company or any of its Subsidiaries (as defined in Rule 144 of the 1933 Act), or (iii) to the knowledge of the Company, a “beneficial owner” of more than 10% of the shares of the Company’s common stock (as defined for purposes of Rule 13d-3 of the 1934 Act). The Company further acknowledges that no Buyer is acting as a financial advisor or fiduciary of the Company or any of its Subsidiaries (or in any similar capacity) with respect to the Transaction Documents and the transactions contemplated hereby and thereby, and any advice given by a Buyer or any of its representatives or agents in connection with the Transaction Documents and the transactions contemplated hereby and thereby is merely incidental to the Buyer’s purchase of the Securities. The Company further represents to the Buyer that the Company’s decision to enter into the Transaction Documents has been based solely on the independent evaluation by the Company and its representatives.

(g) No General Solicitation; Placement Agent’s Fees. Neither the Company nor any of its Subsidiaries, or to the Company’s knowledge, any of its or their affiliates, nor any Person acting on its or their behalf, has engaged in any form of general solicitation or general advertising (within the meaning of Regulation D) in connection with the offer or sale of the Securities. The Company shall be responsible for the payment of any placement agent’s fees, financial advisory fees, or brokers’ commissions (other than for Persons engaged by any Buyer or its investment advisor) relating to or arising out of the transactions contemplated hereby. The Company acknowledges that it has engaged Jefferies & Company, Inc. as Placement Agent in

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connection with the sale of the Securities. Other than the Placement Agent, neither the Company nor any of its Subsidiaries has engaged any other placement agent in connection with the sale of the Securities and no Person (other than the Placement Agent) is entitled to any placement agent, financial advisory, finder’s or other fee arising from this transaction as a result of any agreement, arrangement or understanding entered into by or on behalf of the Company.

(h) No Integrated Offering. None of the Company, its Subsidiaries, any of their affiliates, and any Person acting on their behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would require registration of the issuance of any of the Securities under the 1933 Act, whether through integration with prior offerings or otherwise, or cause this offering of the Securities to require approval of stockholders of the Company for purposes of any applicable stockholder approval provisions, including, without limitation, under the rules and regulations of any exchange or automated quotation system on which any of the securities of the Company are listed or designated. None of the Company, its Subsidiaries, their affiliates and any Person acting on their behalf will take any action or steps referred to in the preceding sentence that would require registration of the issuance of any of the Securities under the 1933 Act or cause the offering of the Securities to be integrated with other offerings for purposes of any such applicable stockholder approval provisions.

(i) 1934 Act Filings and Historical Financial Statements. As of their respective filing dates, the 1934 Act Filings complied in all material respects with the requirements of the 1934 Act and the rules and regulations of the SEC promulgated thereunder applicable to the 1934 Act Filings, and none of the 1934 Act Filings, at the time they were filed with the SEC (as the information contained in such 1934 Act Filings may have been amended, modified, supplemented, corrected, rescinded or otherwise withdrawn in subsequent material filed by the Company with the SEC), contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation or warranty with respect to the information contained in the Company’s current report on Form 8-K filed on March 8, 2011. The consolidated audited financial statements of the Company and its Subsidiaries for the Fiscal Year ended March 31, 2010 were prepared in conformity with U.S. generally accepted accounting principles (“GAAP”) in effect as of the date thereof and fairly present, in all material respects, the financial position, on a consolidated basis, of the Company and its Subsidiaries as at the date thereof and the results of operations and cash flows, on a consolidated basis, of the entities described therein for the period then ended.

(j) Absence of Certain Changes. Since March 31, 2010, other than as disclosed in the 1934 Act Filings, no event, circumstance or change has occurred that has caused or evidences, or could reasonably be expected to result in, either in any case or in the aggregate, a Material Adverse Effect.

(k) No Undisclosed Events, Liabilities, Developments or Circumstances. No event, liability, development or circumstance has occurred or exists, or is contemplated to occur, with respect to the Company or its Subsidiaries or their respective business, properties, prospects, operations or financial condition, that would be required to be disclosed by the

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Company under applicable securities laws in its reports under Section 13(a) or 15(d) of the 1934 Act and which has not been publicly announced.

(l) Conduct of Business. Neither the Company nor any of its Subsidiaries (a) is in violation of any term of or in default under its Certificate of Incorporation or Bylaws or other organizational documents; (b) is in violation of any applicable laws that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect; (c) is subject to or in default with respect to any final judgments, writs, injunctions, decrees, rules or regulations of any court or any federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect or (d) is in breach of or default under any material bond, debenture, note or other evidence of indebtedness, indenture, mortgage, deed of trust, lease or any other material agreement or instrument to which it is a party or by which it or its assets are bound (collectively, the “Applicable Agreements”), except as set forth in the Confidential Information Memorandum or for such violations, breaches or defaults that could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(m) Foreign Corrupt Practices. Neither the Company nor any of its Subsidiaries nor, to the Company’s knowledge, any director, officer, agent, employee or other Person acting on behalf of the Company or any of its Subsidiaries has, in the course of its actions for, or on behalf of, the Company or any of its Subsidiaries (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expenses relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; (iii) violated or is in violation of any provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended; or (iv) made any unlawful bribe, rebate, payoff, influence payment, kickback or other unlawful payment to any foreign or domestic government official or employee.

(n) Transactions With Affiliates. Except as set forth in the 1934 Act Filings, none of the officers, directors or employees of the Company or any of its Subsidiaries is presently a party to any transaction with the Company or any of its Subsidiaries (other than for ordinary course services as employees, officers or directors), including any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from, or otherwise requiring payments to or from any such officer, director or employee or, to the knowledge of the Company or any of its Subsidiaries, any corporation, partnership, trust or other entity in which any such officer, director, or employee has a substantial interest or is an officer, director, trustee or partner.

(o) Capitalization and Use of Proceeds. The table under the caption “Capitalization” in the Confidential Information Memorandum (including the footnotes thereto) sets forth, as of its date, the long term indebtedness of the Company, including (A) the actual long term indebtedness of the Company (excluding any make whole premium associated with early payment of any debt) and (B) the as adjusted long term indebtedness of the Company, after giving effect to the offer and sale of the Notes and the application of the net proceeds therefrom as described in the Confidential Information Memorandum under the section entitled “Use of Proceeds.” The table under the caption “Use of Proceeds” in the Confidential Information

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Memorandum (including the footnotes thereto) sets forth, as of its date, the Company’s intended use of proceeds from the sale of the Notes.

(p) Material Contracts. Schedule 3(p) contains a true, correct and complete list of all the Applicable Agreements in effect on and as of the Closing Date. Except as described on Schedule 3(p), all such Applicable Agreements are in full force and effect and no defaults currently exist by the Company or any Subsidiary and, to the knowledge of the Company, to any other Person party thereto.

(q) Absence of Litigation. Except as set forth in Schedule 3(q) or as disclosed in the 1934 Act Filings, to the Company’s knowledge, there are no legal proceedings about to be commenced or threatened against the Company or any of its Subsidiaries except potential product liability claims which may be asserted in the ordinary course of business (but none of which would exceed, in the aggregate, the insurance coverage of the Company and its subsidiaries). To the Company’s knowledge, there are no legal proceedings about to be commenced or threatened against such the Company or its Subsidiaries that could reasonably be expected to result in, or has resulted in, a Material Adverse Effect.

(r) Insurance. The Company and each of its Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as management of the Company believes to be prudent and customary in the businesses in which the Company and its Subsidiaries are engaged. Neither the Company nor any Subsidiary has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business.

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

(t) Title. Except for pursuant to the arrangements set forth on Schedule 3(t), the Company and its Subsidiaries have good and marketable title in fee simple to all real property and good and marketable title to all personal property owned by them which is material to the business of the Company and its Subsidiaries, in each case free and clear of all liens, encumbrances and defects except such as do not materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by the Company and any of its Subsidiaries. Any real property and facilities held under lease by the Company and any of its Subsidiaries are held by them under valid, subsisting and enforceable leases with

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such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company and its Subsidiaries.

(u) Intellectual Property Rights. Attached hereto as Schedule 3(u) is a true, correct, and complete listing, as of the date hereof, of (i) all trademark registrations and pending trademark applications, copyright registrations, issued patents and pending patent applications and domain name registrations, as to which the Company or any Subsidiary is the owner (other than Intellectual Property registrations and applications owned by the Company or any Subsidiary that are either (A) expired or lapsed, (B) abandoned, or (C) Intellectual Property registrations or applications that the Company has instructed its applicable advisor, including in-house counsel, to abandon or allow to lapse), (ii) all Intellectual Property licenses to which the Company or any Subsidiary is a party (other than computer software licenses and confidentiality/non-disclosure agreements), and (iii) all litigation, and all U.S. oppositions or cancellation actions and material non-U.S. oppositions or cancellation actions, against the Company or any Subsidiary that are presently pending or, to the knowledge of the Company, threatened, contesting the validity, use, ownership, enforceability or registrability of any of the Intellectual Property owned by the Company or any of its Subsidiaries. The Company and each of the Subsidiaries exclusively own, free and clear of all liens, claims or encumbrances, other than any liens, claims or encumbrances to U.S. Healthcare I, L.L.C. (which liens shall be released as of the Closing Date), U.S. Healthcare II, L.L.C. (which liens shall be released as of the Closing Date) or Hologic, Inc., or have the right to use pursuant to a valid and enforceable written license set forth on Schedule 3(u) (other than computer software licenses), all Intellectual Property that is used in the conduct of their businesses. All Intellectual Property listed in Schedule 3(u) owned by the Company or any Subsidiary, is valid, subsisting and enforceable. Except as set forth on Schedule 3(u), (a) the operation of the Company and each Subsidiary’s businesses (including the commercialization of the Company’s Makena product), do not infringe, misappropriate or otherwise conflict with, any Intellectual Property rights or other rights of other persons in respect of any asset or product which currently generates revenue or is anticipated to generate revenue in the future or is material to the Company, and the Company is not, and none of the Subsidiaries are, aware of any facts which indicate a likelihood of any of the foregoing, and (b) the Company has not, and none of the Subsidiaries have, in the past two (2) years received any notices that could reasonably be expected to adversely affect the Company’s or any Subsidiary’s use or ownership of Intellectual Property (including any demand letters related to Intellectual Property or unsolicited offers to license patents from any other person), and (c) to the knowledge of the Company, no third party is currently infringing, misappropriating or otherwise conflicting with any of the Company’s or any of the Subsidiaries’ Intellectual Property rights

(v) FDA and Regulatory Matters.

(i) All approvals of New Drug Applications (“NDAs”) and Abbreviated New Drug Applications (“ANDAs”) and any supplements and amendments to such NDAs and ANDAs are valid and effective, all necessary reports and submissions have been made to the Food and Drug Administration (“FDA”), and all applicable fees with respect to such applications have been paid to FDA.

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(ii) Except as set forth on Schedule 3(v), the Company and its Subsidiaries possess all permits, licenses, approvals, consents and other authorizations, including but not limited to, NDAs, ANDAs, and all supplements and amendments to such applications and appropriate state licenses, permits and registrations, submitted to the appropriate governmental entity necessary to conduct the business of the Company and its Subsidiaries, including without limitation, all such registrations, approvals, certificates, authorizations and permits required by the FDA, the United States Drug Enforcement Administration, Governmental Authority, and all such are in full force and effect. Each of the Company’s and its Subsidiaries’ products are and have been, since March 2009, developed, manufactured, labeled, stored, tested and distributed by such Person for products distributed in the marketplace in compliance with all applicable laws, rules, regulations and orders of the FDA or of any applicable state or other Governmental Authority.

(iii) The manufacture of products by the Company and its Subsidiaries will be conducted in compliance with the applicable requirements of the FDA’s Current Good Manufacturing Practices and pursuant to the terms of the Consent Decree. All of the Company’s facilities are registered with the FDA and all of their products are listed with the FDA as required by the FDA’s regulations, 21 C.F.R. Part 207.

(iv) The Company and its Subsidiaries have complied with and will comply with, all the FDA post-approval commitments and reporting requirements, including but not limited to, adverse event reporting obligations.

(v) To the knowledge of the Company and its Subsidiaries, there are no facts or circumstances that could reasonably be construed as indicating that marketing approval for any of the Company’s or its Subsidiaries’ products will be withdrawn or that the Company and its Subsidiaries will not obtain approval for any products currently pending approval by the FDA or any Governmental Authority. The Company and its Subsidiaries shall use such prompt, substantial and persistent efforts to take, or cause to be taken, all actions, or to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable laws to obtain all consents and approvals of any Governmental Authority.

(vi) No Exclusion Affiliate (i) has any direct or indirect ownership or control interest (as defined in Section 1124(a)(3) of the SSA) in the Company or any of its Subsidiaries except to the extent expressly permitted by the HHS-OIG Agreements, (ii) serves as an officer, director, agent, managing employee or employee (as defined in Section 1126(b) of the SSA) of the Company or any of its Subsidiaries, directly or indirectly, officially or otherwise or (iii) furnishes any services as an independent contractor or consultant to the Company or any of its Subsidiaries. “Exclusion Affiliate” means the Company’s affiliates (as defined or applied under applicable law including the SSA) or Affiliates, including any natural Persons, trusts, or otherwise and including, for the avoidance of doubt, Marc Hermelin, in each case as to which exclusion actions or possible exclusion actions by HHS-OIG exist. “Affiliate” means as applied to any (i) Person, any other Person directly or indirectly controlling, controlled by, or under common control with, that Person and (ii) the Company, Victor M. Hermelin or Marc S. Hermelin,

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or any of their direct descendants, any members of their family, or any trust or other similar entity formed for their benefit or for the benefit of their family. For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlling”, “controlled by” and “under common control with”), as applied to any Person, means the possession, directly or indirectly, of the power (i) to vote 10% or more of the Company’s stock having ordinary voting power for the election of directors of such Person or (ii) to direct or cause the direction of the management and policies of that Person, whether through the ownership of voting securities or by contract or otherwise. “SSA” means the Social Security Act of the United States. “HHS-OIG Agreements” means the HHS-OIG Agreement (Ethex) and the HHS-OIG Agreement (Hermelin). “HHS-OIG Agreement (Ethex)” means Divestiture Agreement entered into by and between the Office of Inspector General of the United States Department of Health and Human Services, K-V Pharmaceutical Corporation, and its subsidiary ETHEX Corporation, which agreement was entered into by the parties thereto, and became effective, on November 15, 2010. “HHS-OIG Agreement (Hermelin)” means that certain Settlement Agreement entered into by and among the Office of Inspector General of the United States Department of Health and Human Services, K-V Pharmaceutical Company, Sarah Weltscheff and Marc Hermelin, which agreement was entered into by the parties thereto, and became effective, on November 15, 2010, together with the Attachment A and Schedule of Divestitures thereto, as in effect on the Closing Date.

(vii) There has not occurred any event or condition the result of which could lead to an HHS-OIG Agreement ceasing to be operative.

(viii) Each of the Company’s representations set forth in any HHS-OIG Agreement and any document or agreement related thereto is true, accurate and complete in all respects, and the Company is not aware (after reasonable diligence and inquiry) of any fact or circumstance that could render any Person’s representations in such agreements to be false or misleading.

(w) Environmental Laws. Except as described in the 1934 Act Filings, the Company and its Subsidiaries (i) are in compliance with any and all applicable Environmental Laws (as hereinafter defined), (ii) have received all certificates, permits, authorities, licenses or other approvals (collectively, “Permits”) required of them under applicable Environmental Laws to conduct their respective businesses as currently conducted and (iii) are in compliance with all terms and conditions of any such Permit where, in each of the foregoing clauses (i), (ii) and (iii), the failure to so comply would be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect. The term “Environmental Laws” means all federal, state, local or foreign laws relating to pollution or protection of human health or the environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata), including, without limitation, laws relating to emissions, discharges, releases or threatened releases of chemicals, pollutants, contaminants, or toxic or hazardous substances or wastes (collectively, “Hazardous Materials”) into the environment, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials, as well as all authorizations, codes, decrees, demands or demand letters, injunctions, judgments, licenses, notices or notice letters, orders, Permits, plans or regulations issued, entered, promulgated or approved thereunder.

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(x) Subsidiary Rights. The Company has the unrestricted right to vote, and (subject to limitations imposed by applicable law) to receive dividends and distributions on, all capital securities of its Subsidiaries as owned by the Company.

(y) Payment of Taxes. All federal and other material tax returns and reports of the Company and its Subsidiaries required to be filed by any of them have been timely filed, and all taxes shown on such tax returns to be due and payable and all assessments, fees and other governmental charges upon the Company and its Subsidiaries and upon their respective properties, assets, income, businesses and franchises which are due and payable have been paid when due and payable, except for such taxes which are being contested in good faith and for which adequate reserves have been established in accordance with GAAP. The Company knows of no proposed tax assessment against the Company or any of its Subsidiaries which is not being actively contested by the Company or such Subsidiary in good faith and by appropriate proceedings; provided, such reserves or other appropriate provisions, if any, as shall be required in conformity with GAAP shall have been made or provided therefor.

(z) Internal Controls. Except as disclosed in the 1934 Act Filings, the Company is unaware of any material weakness or significant deficiencies in its internal control over financial reporting

(aa) Off Balance Sheet Arrangements. There is no transaction, arrangement, or other relationship between the Company and an unconsolidated or other off balance sheet entity that is required to be disclosed by the Company in the SEC Documents and is not so disclosed.

(bb) Investment Company Status. The Company is not, and upon consummation of the sale of the Notes will not be, an “investment company,” a company controlled by an “investment company” or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company” as such terms are defined in the Investment Company Act of 1940, as amended.

(cc) Disclosure. The Confidential Information Memorandum did not contain, as of its date, and does not now contain, any untrue statement of a material fact, and as of such date did not omit and does not now omit, to state a material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading. The Company confirms that neither it nor, to its knowledge, any other Person acting on its behalf has provided the Buyer or its agents or counsel with any information that constitutes or could reasonably be expected to constitute material, nonpublic information (other than information relating to the offering of the Securities). The Company understands and confirms that the Buyer will rely on the foregoing representations in effecting transactions in securities of the Company. All disclosure provided to the Buyer regarding the Company or any of its Subsidiaries, their business and the transactions contemplated hereby, including the Schedules to this Agreement, furnished by or on behalf of the Company is true and correct and does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. No event or circumstance has occurred or information exists with respect to the Company or any of its Subsidiaries or its or their business, properties, prospects, operations or financial conditions, which, under applicable law, rule or regulation, requires

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public disclosure or announcement by the Company on or before the date hereof but which has not been so publicly announced or disclosed.

(dd) U.S. Real Property Holding Corporation. The Company is not, nor has it ever been, a U.S. real property holding corporation within the meaning of Section 897 of the Internal Revenue Code of 1986, as amended (the “Code”), and the Company shall so certify upon any Buyer’s request.

(ee) ERISA Compliance. The Company, each of its Subsidiaries and each of their respective ERISA Affiliates are in material compliance with all applicable provisions and requirements of ERISA and the Internal Revenue Code and the regulations and published interpretations thereunder with respect to each Employee Benefit Plan, and have performed all their obligations under each Employee Benefit Plan. “Employee Benefit Plan” means any “employee benefit plan” as defined in Section 3(3) of ERISA (other than a Multiemployer Plan) which is or, within the last six years, was sponsored, maintained or contributed to by, or required to be contributed by, the Company, any of its Subsidiaries or, solely with respect to any Employee Benefit Plan covered under Title IV of ERISA, any of their respective ERISA Affiliates. “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and any successor thereto. Each Employee Benefit Plan which is intended to qualify under Section 401(a) of the Internal Revenue Code has received a favorable determination letter from the Internal Revenue Service indicating that such Employee Benefit Plan is so qualified and nothing has occurred subsequent to the issuance of such determination letter which would cause such Employee Benefit Plan to lose its qualified status. As of the date hereof, no liability to the PBGC (other than required premium payments and required minimum funding contributions), the Internal Revenue Service, any Employee Benefit Plan or any trust established under any Employee Benefit Plan is expected to be incurred by the Company, any of its Subsidiaries or any of their ERISA Affiliates and none of the foregoing entities maintains, contributes to or has any liability with respect to any Pension Plan or Multiemployer Plan. “PBGC” means the Pension Benefit Guaranty Corporation or any successor thereto. “Pension Plan” means any Employee Benefit Plan, other than a Multiemployer Plan, which is subject to Section 412 of the Internal Revenue Code or Section 302 of ERISA. “Multiemployer Plan” means any Employee Benefit Plan which is a “multiemployer plan” as defined in Section 3(37) of ERISA. No ERISA Event has occurred or is reasonably expected to occur which would result in material liability of the Company. “ERISA Event” means (i) a “reportable event” within the meaning of Section 4043 of ERISA and the regulations issued thereunder with respect to any Pension Plan (excluding those for which the provision for 30-day notice to the PBGC has been waived by regulation); (ii) the failure to meet the minimum funding standard of Section 412 of the Internal Revenue Code with respect to any Pension Plan (whether or not waived in accordance with Section 412(c) of the Internal Revenue Code) or the failure to make by its due date a required installment under Section 430(j) of the Internal Revenue Code with respect to any Pension Plan or the failure to make any required contribution to a Multiemployer Plan; (iii) the provision by the administrator of any Pension Plan pursuant to Section 4041(a)(2) of ERISA of a notice of intent to terminate such plan in a distress termination described in Section 4041(c) of ERISA. Except to the extent required under Section 4980B of the Internal Revenue Code or similar state laws, no Employee Benefit Plan provides health or welfare benefits (through the purchase of insurance or otherwise) for any retired or former employee of the Company or any of its Subsidiaries. “ERISA Affiliate” means, with respect to the Company or a subsidiary, any

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member of any group of organizations described in Sections 414(b),(c),(m) or (o) of the Code, and the regulations and published interpretations thereunder of which the Company or such subsidiary is a member.

(ff) Money Laundering Laws. The operations of the Company and its subsidiaries are, and have been conducted at all times, in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all applicable jurisdictions, the rules and regulations thereunder and any related or similar applicable rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the best knowledge of the Company, threatened.

(gg) OFAC. Neither the Company nor any of its subsidiaries nor, to the Company’s knowledge, any director, officer, agent, employee, affiliate or Person acting on behalf of the Company or any of its subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will not directly or indirectly use the proceeds of this offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person or entity, for the purpose of financing the activities of any Person currently subject to any U.S. sanctions administered by OFAC.

(hh) No Registration. Assuming (i) the accuracy of the representations and warranties of the Buyer contained in Section 2 hereof and the Buyer’s compliance with their agreements contained in the Transaction Documents and (ii) the accuracy of the comparable representations and warranties of the Other Buyers contained in the Other Purchase Agreements and such Other Buyers’ compliance with their agreements contained in the Transaction Documents, it is not necessary in connection with the offer, issuance, sale and delivery of the Notes in the manner contemplated by this Agreement and the Transaction Documents to register the offer or sale of any of the Notes under the Securities Act or to qualify the Indenture under the Trust Indenture Act.

4. COVENANTS.

(a) Best Efforts. Each party shall use its best efforts timely to satisfy each of the covenants and conditions to be satisfied by it as provided in Sections 5 and 6 of this Agreement.

(b) Form D and Blue Sky. The Company agrees to file a Form D with respect to the Securities as required under Regulation D and to provide a copy thereof to any Buyer upon request. The Company, on or before the Closing Date, shall take such action as the Company shall reasonably determine is necessary in order to obtain an exemption for or to qualify the Securities for sale to the Buyer at the Closing pursuant to this Agreement under applicable securities or “Blue Sky” laws of the states of the United States (or to obtain an exemption from such qualification), and shall provide evidence of any such action so taken upon Buyer’s request. The Company shall make all filings and reports as it reasonably determines are necessary

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relating to the offer and sale of the Securities required under applicable securities or “Blue Sky” laws of the states of the United States following the Closing Date; provided, however, the Company shall not for any such purpose be required to qualify generally to transact business as a foreign corporation in any jurisdiction where it is not so qualified or to consent to general service of process in any such jurisdiction.

(c) Use of Proceeds. The Company will use the proceeds from the sale of the Notes in the manner described in the Confidential Information Memorandum under the caption “Use of Proceeds.”

(d) Financial Information. For so long as any Notes remain outstanding and are “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, the Company shall, during the period in which it is not subject to Section 13 or 15(d) under the 1934 Act, make available to the Buyer and any holder of the Notes in connection with any sale thereof and any prospective purchaser of the Notes and securities analysts, in each case upon reasonable request, the information specified in, and meeting the requirements of, Rule 144A(d)(4) under the Securities Act (or any successor thereto).

(e) Certain Fees and Expenses. The Company shall pay all transfer agent fees, stamp or transfer taxes and other taxes (not including income or similar taxes) and duties levied in connection with the sale and issuance of the Notes. Except as otherwise expressly set forth in the Transaction Documents, each party to this Agreement shall bear its own fees and expenses in connection with the sale of the Notes to the Buyer (including, without limitation, each party’s legal, accounting and other expenses).

(f) Disclosure of Transactions and Other Material Information. On or before 9:30 a.m., New York City time, on the first Business Day following the date of this Agreement, the Company shall file a Current Report on Form 8-K describing the material terms of the transactions contemplated by the Transaction Documents (the “8-K Filing”). From and after the filing of the 8-K Filing with the SEC, no Buyer shall be in possession of any material, nonpublic information received from the Company, any of its Subsidiaries or any of their respective officers, directors, employees or agents, that is not disclosed in the 8-K Filing. The Company shall not, and shall cause each of its Subsidiaries and its and each of their respective officers, directors, employees and agents, not to, provide any Buyer with any material, nonpublic information regarding the Company or any of its Subsidiaries from and after the filing of the 8-K Filing with the SEC without the express written consent of the Buyer. Neither the Company, its Subsidiaries nor any Buyer shall issue any other press releases or any other public statements with respect to the transactions contemplated hereby; provided, however, that (A) the Company shall be entitled, without the prior approval of any Buyer, to make any press release or other public disclosure with respect to such transactions (i) in substantial conformity with any of the material or information included in the 8-K Filing or (ii) as is required by applicable law and regulations, and (B) any Buyer may make any filings and disclosures required by applicable law, rule or regulation, including any filings and disclosures required under Section 13 or Section 16 of the 1934 Act. Without the prior written consent of any applicable Buyer, neither the Company nor any of its Subsidiaries or affiliates shall disclose the name of the Buyer in any filing, announcement, release or otherwise other than in connection with the Exchange Offer

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Registration Statement (as defined in the Indenture), as contemplated pursuant to Section 4.22 of the Indenture, or unless such disclosure is required by law, regulation or the Principal Market.

(g) Conduct of Business. The business of the Company and its Subsidiaries shall not be conducted in violation of any law, ordinance or regulation of any governmental entity, except where such violations would not reasonably be expected to result, either individually or in the aggregate, in a Material Adverse Effect.

(h) General Solicitation. None of the Company, any of its affiliates (as defined in Rule 501(b) under the Securities Act) or any person acting on behalf of the Company or such affiliate shall solicit any offer to buy or offer or sell the Notes by means of any form of general solicitation or general advertising within the meaning of Regulation D, including: (i) any advertisement, article, notice or other communication published in any newspaper, magazine or similar medium or on the Internet or broadcast over television or radio; and (ii) any seminar or meeting whose attendees have been invited by any general solicitation or general advertising.

(i) Integration. None of the Company, any of its affiliates (as defined in Rule 501(b) under the Securities Act) or any person acting on behalf of the Company or such affiliate shall sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) which will be integrated with the sale of the Notes in a manner which would require the registration under the Securities Act of the Notes, and the Company shall take all action that is appropriate or necessary to ensure that its offerings of other securities will not be integrated with the Offering for purposes of the Securities Act.

(j) Restricted Securities. During the one-year period after the Closing Date (or such shorter period as may be provided for in Rule 144 under the Securities Act, as the same may be in effect from time to time), the Company shall not, and shall not permit any Subsidiaries of either the Company or any other “affiliates” (as defined in Rule 144A under the Securities Act) controlled by the Company to, resell any of the Notes which constitute “restricted securities” under Rule 144 that have been reacquired by the Company, any Subsidiaries or any other affiliates controlled by the Company, except pursuant to an effective registration statement under the Securities Act or valid exemption from the registration requirements thereunder.

(k) Taxes. The Buyer shall deliver to the Company a properly completed and duly executed applicable Internal Revenue Service Form W-8 or W-9 that establishes a complete exemption from United States withholding tax. The Buyer shall provide replacement forms on the obsolescence of such forms or inaccuracy of any information thereon. The Company agrees to pay all stamp, documentary and transfer taxes and other duties, if any, which may be imposed by the United States or any political subdivision thereof or taxing authority thereof or therein with respect to the issuance of the Notes or the sale thereof to the Buyer.

(l) Collateral Documents. The Company shall use its reasonable best efforts to complete on or prior to the Closing Date, or have arrangements satisfactory to the Collateral Agent in place for such completion of, all filings and other similar actions required in connection with the perfection of security interests as and to the extent contemplated by the Collateral Documents.

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(m) DTC. The Company shall have paid all fees and expense (including fees and expenses of counsel) of the Company in connection with approval of the Notes by DTC for “book-entry” transfer. The Company shall comply with the representation letter of the Company to DTC relating to the approval of the Notes by DTC for “book-entry” transfer.

5. CONDITIONS TO THE COMPANY’S OBLIGATION TO SELL.

The obligation of the Company and the Guarantors hereunder are subject to the satisfaction, at or before the Closing Date, of each of the following conditions, provided that these conditions are for the sole benefit of the Company and the Guarantors and may be waived by the Company and the Guarantors at any time in its sole discretion by providing the Buyer with prior written notice thereof:

(a) The Buyer shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company.

(b) The Buyer and each other Buyer shall have delivered to the Company, or to the Closing Agent on the Company’s behalf, the applicable Purchase Price for the Securities being purchased by the Buyer at the Closing by wire transfer of immediately available funds pursuant to the wire instructions provided by the Company.

(c) The representations and warranties of the Buyer shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or material adverse effect, which shall be true and correct in all respects) as of the date when made and as of the Closing Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such specified date), and the Buyer shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Buyer at or prior to the Closing Date.

6. CONDITIONS TO THE BUYER’S OBLIGATION TO PURCHASE.

The obligation of the Buyer hereunder to purchase the Securities at the Closing is subject to the satisfaction, at or before the Closing Date, of each of the following conditions, provided that these conditions are for the Buyer’s sole benefit and may be waived by the Buyer at any time in its sole discretion by providing the Company with prior written notice thereof:

(a) No injunction, restraining order or order of any nature by a governmental authority shall have been issued as of the Closing Date that would prevent or materially interfere with the consummation of the Offering or any of the transactions contemplated hereby and thereby; and no stop order suspending the qualification or exemption from qualification of any of the Notes in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or, to the knowledge of the Company, be pending or contemplated as of the Closing Date.

(b) No action shall have been taken and no law shall have been enacted, adopted or issued that would, as of the Closing Date, prevent the consummation of the Offering or any of the transactions contemplated hereby or thereby. No proceeding shall be pending or, to the knowledge of the Company, threatened other than proceedings (A) that if adversely

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determined could not, individually or in the aggregate, adversely affect the issuance or marketability of the Notes, and (B) that could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(c) At the Closing Date, since the date hereof, no event or events have occurred, no information has become known nor does any condition exist that could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(d) The Buyer shall have received on the Closing Date:

(i) a certificate, dated the Closing Date, executed by the Secretary of the Company or such Guarantor, certifying as to the (i) the resolutions consistent with Section 3(b) as adopted by the Company’s or Guarantor’s, as applicable, Board of Directors in a form reasonably acceptable to the Buyer, (ii) the Certificate of Incorporation and (iii) the Bylaws, each as in effect at the Closing;

(ii) the opinion of Fried, Frank, Harris, Shriver & Jacobson LLP, counsel to the Company and the Guarantors, dated the Closing Date, substantially in the form of Exhibit A attached hereto;

(iii) the opinion of Thompson Coburn LLP, counsel to the Company and the Guarantors, dated the Closing Date, substantially in the form of Exhibit B attached hereto; and

(iv) the opinion of the general counsel of the Company, dated the Closing Date, substantially in the form of Exhibit C attached hereto.

The opinions delivered pursuant to this Section 6(d) shall be addressed and delivered to the Closing Agent and the Buyer acknowledges that it (x) is not the beneficiary of such opinions and (y) has no right to rely on such opinions.

(e) Each of the Transaction Documents shall have been executed and delivered by each of the parties thereto, and the Buyer shall have received a fully executed original of each Transaction Document other than the Other Purchase Agreements.

(f) The Collateral Agent shall have received on the Closing Date: (i) appropriately completed copies of Uniform Commercial Code financing statements naming, in each case, each of the Company and each Guarantor as a debtor and the Collateral Agent as the secured party, or other similar instruments or documents to be filed under the Uniform Commercial Code of all jurisdictions as may be necessary to perfect the security interests of the Collateral Agent pursuant to the Collateral Documents; (ii) appropriately completed copies of Uniform Commercial Code Form UCC-3 termination statements necessary to release all liens (other than Permitted Liens) of any Person in any collateral described in any Collateral Documents previously granted by any Person; (iii) certified copies of Uniform Commercial Code Requests for Information or Copies (Form UCC-11), or a similar search report certified by a party acceptable to the Collateral Agent, dated a date reasonably near to the Closing Date, listing all effective financing statements which name the Company or any Guarantor (under its present name and any previous names) as the debtor, together with copies of such financing statements

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(none of which shall cover any collateral described in any Collateral Document, other than such financing statements that evidence permitted liens); (iv) all Pledged Equity Interests and Pledged LLC Interests (each as defined in the Security Agreement) issued by each Subsidiary of the Company in favor of the Company or any Guarantor, together with undated stock power(s) or other instruments of transfer executed in blank; (v) copies of the policies of insurance (or binders or insurance certificates in respect thereof), as are required by Section 4.09 of the Indenture; and (vii) such other approvals, opinions, or documents as either the Buyer or the Collateral Agent may reasonably request in form and substance reasonably satisfactory to the Buyer or the Collateral Agent, as case may be.

The Buyer and its counsel shall be satisfied that (i) the liens granted to the Collateral Agent, for the benefit of the Secured Parties (as defined in the Security Agreement) in the collateral described in the Collateral Documents is of the priority described in the Confidential Information Memorandum and the Collateral Documents; and (ii) no lien exists on any of the collateral described in the Collateral Documents other than the liens created in favor of the Collateral Agent, for the benefit of the Secured Parties, pursuant to the Collateral Documents, and other permitted liens.

(g) All Uniform Commercial Code financing statements or other similar financing statements and Uniform Commercial Code Form UCC-3 termination statements required pursuant to clause (g)(i) and (ii) above (collectively, the “Filing Statements”) shall have been delivered to CT Corporation System or another similar filing service company acceptable to the Buyer (the “Filing Agent”). The Filing Agent shall have acknowledged in a writing reasonably satisfactory to the Buyer and its counsel (i) the Filing Agent’s receipt of all Filing Statements, (ii) that the Filing Statements have either been submitted for filing in the appropriate filing offices or will be submitted for filing in the appropriate offices within ten days following the Closing Date and (iii) that the Filing Agent will notify the Collateral Agent and the Buyer and its counsel of the results of such submissions within 30 days following the Closing Date.

(h) The representations and warranties of the Company and each Guarantor shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Closing Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such specified date) and the Company and each Guarantor shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company and each Guarantor at or prior to the Closing Date. The Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by the Buyer.

(i) The Buyer shall have received a certificate, dated the Closing Date, executed by an executive officer of the Company, certifying that the Company has received duly executed Other Purchase Agreements from the Other Buyers that, together with this Agreement, relate to the issuance and sale of $225,000,000 aggregate principal amount of the Notes.

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7. TERMINATION. In the event that the Closing shall not have occurred with respect to any Buyer on or before fifteen (15) Business Days from the date hereof due to the Company’s or the Buyer’s failure to satisfy the conditions set forth in Sections 5 and 6 above (and the nonbreaching party’s failure to waive such unsatisfied condition(s)), the nonbreaching party shall have the option to terminate this Agreement with respect to such breaching party at the close of business on such date without liability of any party to any other party.

8. MISCELLANEOUS.

(a) Governing Law; Jurisdiction; Jury Trial. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by the internal laws of the State of New York, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of New York or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in The City of New York, Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof to such party at the address for such notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.

(b) Counterparts. This Agreement may be executed in two or more identical counterparts, all of which shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other parties; provided that a facsimile signature shall be considered due execution and shall be binding upon the signatory thereto with the same force and effect as if the signature were an original, not a facsimile signature.

(c) Headings. The headings of this Agreement are for convenience of reference and shall not form part of, or affect the interpretation of, this Agreement.

(d) Severability. If any provision of this Agreement shall be invalid or unenforceable in any jurisdiction, such invalidity or unenforceability shall not affect the validity or enforceability of the remainder of this Agreement in that jurisdiction or the validity or enforceability of any provision of this Agreement in any other jurisdiction.

(e) Entire Agreement; Amendments. This Agreement and the other Transaction Documents supersede all other prior oral or written agreements between the Buyer,

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the Company, the Guarantors, their affiliates and Persons acting on their behalf with respect to the matters discussed herein, and this Agreement, the other Transaction Documents and the instruments referenced herein and therein contain the entire understanding of the parties with respect to the matters covered herein and therein and, except as specifically set forth herein or therein, neither the Company, the Guarantors, nor any Buyer makes any representation, warranty, covenant or undertaking with respect to such matters. No provision of this Agreement may be amended other than by an instrument in writing signed by the Company, the Guarantors and the Buyer. No provision hereof may be waived other than by an instrument in writing signed by the party against whom enforcement is sought. No consideration shall be offered or paid to any Person to amend or consent to a waiver or modification of any provision of any of the Transaction Documents unless the same consideration also is offered to all of the parties to the Transaction Documents or holders of the Notes, as the case may be. The Company and the Guarantors have not, directly or indirectly, made any agreements with the Buyer relating to the terms or conditions of the transactions contemplated by the Transaction Documents except as set forth in the Transaction Documents. Without limiting the foregoing, the Company and each Guarantor confirms that, except as set forth in this Agreement, no Buyer has made any commitment or promise or has any other obligation to provide any financing to the Company and the Guarantors or otherwise.

(f) Notices. Any notices, consents, waivers or other communications required or permitted to be given under the terms of this Agreement must be in writing and will be deemed to have been delivered: (i) upon receipt, when delivered personally; (ii) upon receipt, when sent by facsimile (provided confirmation of transmission is mechanically or electronically generated and kept on file by the sending party); or (iii) one Business Day after deposit with an overnight courier service, in each case properly addressed to the party to receive the same. The addresses and facsimile numbers for such communications shall be:

if to the Company:

K-V Pharmaceutical Company

One Corporate Woods Drive

Bridgeton, MO 63044

Attention: President and CEO

Phone: 314-645-6600

Fax: 314-646-3751

with a copy (for informational purposes only) to:

Fried, Frank, Harris, Shriver & Jacobson LLP

1 New York Plaza

New York, NY 10004

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Attention: Stuart Gelfond

Phone: (212) 859-8272

Fax: (212) 859-4000

and:

Thompson Coburn LLP

One U.S. Bank Plaza

St. Louis, MO 63130

Attention: Thomas A. Litz

Phone: 314-552-6000

Fax: 314-552-7000

if to a Buyer, to its address and facsimile number set forth below the Buyer’s signature on the signature pages hereto, with copies to the Buyer’s representatives set forth below the Buyer’s signature on the signature pages hereto;

or to such other address and/or facsimile number and/or to the attention of such other Person as the recipient party has specified by written notice given to each other party five (5) days prior to the effectiveness of such change. Written confirmation of receipt (A) given by the recipient of such notice, consent, waiver or other communication, (B) mechanically or electronically generated by the sender’s facsimile machine containing the time, date, recipient facsimile number and an image of the first page of such transmission or (C) provided by an overnight courier service shall be rebuttable evidence of personal service, receipt by facsimile or receipt from an overnight courier service in accordance with clause (i), (ii) or (iii) above, respectively.

(g) Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns; provided that no party shall assign any of its rights or obligations hereunder without the prior written consent of the other parties hereto.

(h) No Third Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective permitted successors and assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other Person, except that Jefferies, in its capacity as Placement Agent and Closing Agent, together with its representatives, affiliates and agents, may rely upon the representations, warranties and releases contained in Sections 2, 3 and 6(d) hereof, and except that Sections 2(f)(ii) and 8(l) shall inure to the benefit of Jefferies, in its capacity as Placement Agent and Closing Agent, together with its representatives, affiliates and agents, which shall be third party beneficiaries with respect thereto.

(i) Survival. Unless this Agreement is terminated under Section 7, the representations and warranties of the Company and the Buyer contained in Sections 2 and 3, and the agreements and covenants set forth in Sections 4 and 8 shall survive the Closing. The Buyer shall be responsible only for its own representations, warranties, agreements and covenants hereunder.

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(j) Further Assurances. Each party shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all such other agreements, certificates, instruments and documents, as any other party may reasonably request in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby.

(k) Indemnification. In consideration of the Buyer’s execution and delivery of the Transaction Documents and acquiring the Notes hereunder and in addition to all of the Company’s and each Guarantor’s other obligations under the Transaction Documents, the Company and each Guarantor shall defend, protect, indemnify and hold harmless the Buyer and each other holder of the Notes and all of their stockholders, partners, members, officers, directors, employees and direct or indirect investors and any of the foregoing Persons’ agents or other representatives (including, without limitation, those retained in connection with the transactions contemplated by this Agreement) (collectively, the “Indemnitees”) from and against any and all actions, causes of action, suits, claims, losses, costs, penalties, fees, liabilities and damages, and expenses in connection therewith (irrespective of whether any such Indemnitee is a party to the action for which indemnification hereunder is sought), and including reasonable attorneys’ fees and disbursements (the “Indemnified Liabilities”), incurred by any Indemnitee as a result of, or arising out of, or relating to (a) any misrepresentation or breach of any representation or warranty made by the Company or any Guarantor in the Transaction Documents or any certificate delivered by the Company or any Guarantor hereunder, (b) any breach of any covenant, agreement or obligation of the Company or any Guarantor contained in the Transaction Documents or any certificate delivered by the Company or any Guarantor hereunder or (c) any cause of action, suit or claim brought or made against such Indemnitee by a third party (including for these purposes a derivative action brought on behalf of the Company or any Guarantor) and arising out of or resulting from (i) the execution, delivery, performance or enforcement of the Transaction Documents or any certificate delivered by the Company or any Guarantor hereunder, (ii) any transaction financed or to be financed in whole or in part, directly or indirectly, with the proceeds of the issuance of the Notes, or (iii) the status of the Buyer or holder of the Notes as an investor in the Company and the Guarantors. Neither the Company nor any Guarantor will be liable to any Buyer under this Agreement to the extent that a loss, claim, damage or liability is attributable to any Buyer’s breach of any of the representations, warranties, covenants or agreements made by the Buyer in this Agreement or in the other Transaction Documents. To the extent that the foregoing undertaking by the Company or any Guarantor may be unenforceable for any reason, the Company and each Guarantor shall make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities which is permissible under applicable law.

(l) Indemnity of Closing Agent and Placement Agent. Each party hereto agrees for the express benefit of each of the Closing Agent and the Placement Agent, their respective affiliates and their respective representatives that:

(i) Neither Jefferies (as Closing Agent or Placement Agent) nor any of its affiliates or any of its representatives (1) has any duties or obligations other than those specifically set forth herein or in the engagement letter, dated as of August 23, 2010 (as amended through the date hereof), among the Company and Jefferies (the “Engagement Letter”), (2) shall be liable for any improper payment made in accordance with the information provided by

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the Company, (3) makes any representation or warranty, or has any responsibilities as to the validity, accuracy, value or genuineness of any information, certificates or documentation delivered by or on behalf of the Company pursuant to this Agreement or the Transaction Documents or in connection with any of the transactions contemplated hereby or thereby, including any information in the Confidential Information Memorandum, or (4) shall be liable (x) for any action taken, suffered or omitted by any of them in good faith and reasonably believed to be authorized or within the discretion or rights or powers conferred upon it by this Agreement or any Transaction Document or (y) for anything which any of them may do or refrain from doing in connection with this Agreement or any Transaction Document, except for such party’s own willful misconduct or bad faith.

(ii) Each of Jefferies (as Closing Agent and Placement Agent) and any of its affiliates or any of its representatives shall be entitled to (1) rely on, and shall be protected in acting upon, any certificate, instrument, opinion, notice, letter or any other document or security delivered to any of them by or on behalf of the Company, (2) be indemnified by the Company for acting as Closing Agent and Placement Agent, respectively, hereunder pursuant to the indemnification provisions set forth in the Engagement Letter, which hereby are incorporated by reference herein and (3) be indemnified and held harmless by the Buyer for acting as Closing Agent and Placement Agent, respectively; provided that, the aggregate liability of the Buyer to the Closing Agent and the Placement Agent pursuant to this clause (ii)(3) shall be limited to the amount wired to the Closing Agent by the Buyer pursuant to Section 1(c)(i).

(m) No Strict Construction. The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no rules of strict construction will be applied against any party.

(n) Remedies. The Buyer and each holder of the Notes shall have all rights and remedies set forth in the Transaction Documents and all rights and remedies which such holders have been granted at any time under any other agreement or contract and all of the rights which such holders have under any law. Any Person having any rights under any provision of this Agreement shall be entitled to enforce such rights specifically (without posting a bond or other security), to recover damages by reason of any breach of any provision of this Agreement and to exercise all other rights granted by law. Furthermore, the Company and each Guarantor recognizes that in the event that it fails to perform, observe, or discharge any or all of its obligations under the Transaction Documents, any remedy at law may prove to be inadequate relief to the Buyer. The Company and each Guarantor therefore agrees that the Buyer shall be entitled to seek temporary and permanent injunctive relief in any such case without the necessity of proving actual damages and without posting a bond or other security.

(o) Rescission and Withdrawal Right. Notwithstanding anything to the contrary contained in (and without limiting any similar provisions of) the Transaction Documents, whenever any Buyer exercises a right, election, demand or option under a Transaction Document and the Company or any Guarantor does not timely perform its related obligations within the periods therein provided, then at any time prior to performance by the Company or any Guarantor of such obligation the Buyer may rescind or withdraw, in its sole discretion from time to time upon written notice to the Company and the Guarantors, any

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relevant notice, demand or election in whole or in part without prejudice to its future actions and rights.

(p) Payment Set Aside. To the extent that the Company or any Guarantor makes a payment or payments to the Buyer hereunder or pursuant to any of the other Transaction Documents or the Buyer enforce or exercise their rights hereunder or thereunder, and such payment or payments or the proceeds of such enforcement or exercise or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside, recovered from, disgorged by or are required to be refunded, repaid or otherwise restored to the Company, any Guarantor, a trustee, receiver or any other Person under any law (including, without limitation, any bankruptcy law, foreign, state or federal law, common law or equitable cause of action), then to the extent of any such restoration the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such enforcement or setoff had not occurred.

(q) Knowledge. For purposes of this Agreement, whenever there is a reference to the Company’s or any Guarantor’s knowledge, it shall mean the actual knowledge of the executive officers (as defined in Rule 405 under the 1933 Act) of the Company or any Guarantor, as applicable, after due inquiry.

[Signature Page Follows]

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IN WITNESS WHEREOF, the Buyer and the Company have caused its respective signature page to this Purchase Agreement to be duly executed as of the date first written above.

COMPANY:
K-V PHARMACEUTICAL COMPANY
By:
	Name:
	Title:
GUARANTORS:
NESHER PHARMACEUTICALS INC. ETHER-RX CORPORATION NESHER SOLUTIONS USA, INC. NESHER DISCOVERY SOLUTIONS, INC. DRUGTECH CORPORATION ZERATECH TECHNOLOGIES USA, INC. FP1096, INC.
By:
	Name:
	Title:

IN WITNESS WHEREOF, the Buyer and the Company have caused their respective signature page to this Purchase Agreement to be duly executed as of the date first written above.

BUYER:
[BUYER]
By:
	Name:
	Title:
PRINCIPAL AMOUNT OF NOTES:
$

EX-10.2

Exhibit 10.2

EXECUTION COPY

PLEDGE AND SECURITY AGREEMENT

dated as of March 17, 2011

by and among

K-V PHARMACEUTICAL COMPANY,

EACH OF THE GRANTORS PARTY HERETO

and

WILMINGTON TRUST FSB,

as Collateral Agent

TABLE OF CONTENTS

		PAGE
SECTION 1.       DEFINITIONS; GRANT OF SECURITY			1
1.1	General Definitions		1
1.2	Definitions; Interpretation		6
SECTION 2.      GRANT OF SECURITY			7
2.1	Grant of Security		7
2.2	Certain Limited Exclusions		8
SECTION 3.      SECURITY FOR OBLIGATIONS; GRANTORS REMAIN LIABLE			9
3.1	Security for Obligations		9
3.2	Continuing Liability Under Collateral		9
SECTION 4.       CERTAIN PERFECTION REQUIREMENTS			9
4.1	Delivery Requirements		9
4.2	Control Requirements		10
4.3	Intellectual Property Recording Requirements		11
4.4	Other Actions		11
SECTION 5.       REPRESENTATIONS AND WARRANTIES			12
5.1	Grantor Information & Status		12
5.2	Collateral Identification, Special Collateral		12
5.3	Ownership of Collateral and Absence of Other Liens		13
5.4	Status of Security Interest		13
5.5	Goods & Receivables		14
5.6	Pledged Equity Interests, Investment Related Property		14
5.7	Intellectual Property		14
5.8	Secured Obligations		15
SECTION 6.       COVENANTS AND AGREEMENTS			16
6.1	Grantor Information and Status		16
6.2	Collateral Identification; Special Collateral		16
6.3	Impairment of Collateral		16
6.4	Status of Security Interest		16
6.5	Goods and Receivables		16
6.6	Pledged Equity Interests, Investment Related Property		17
6.7	Intellectual Property		18
6.8	Insurance		20
SECTION 7.       FURTHER ASSURANCES; ADDITIONAL GRANTORS			20
7.1	Further Assurances		20
7.2	Additional Grantors		21
SECTION 8.       CONCERNING THE COLLATERAL AGENT			21
8.1	Power of Attorney		21
8.2	Duties of the Collateral Agent		22
8.3	Rights of the Collateral Agent		23
8.4	Individual Rights of Collateral Agent		24

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8.5	Collateral Agent’s Disclaimer	24
8.6	Replacement of Collateral Agent	25
8.7	Successor Collateral Agent by Merger, Etc.	25
8.8	Eligibility	26
8.9	Co-Collateral Agent; Separate Collateral Agent	26
8.10	Liability; Enforcement Expenses; Indemnification	26
SECTION 9.       REMEDIES		27
9.1	Generally	27
9.2	Application of Proceeds	28
9.3	[Reserved]	28
9.4	Investment Related Property	28
9.5	Intellectual Property License	29
9.6	Intellectual Property	29
9.7	Cash Proceeds; Deposit Account and Controlled Accounts	31
SECTION 10.     COLLATERAL AGENT		31
SECTION 11.     CONTINUING SECURITY INTEREST; TRANSFER OF NOTES		32
SECTION 12.     [RESERVED]		32
SECTION 13.     MISCELLANEOUS		32
SECTION 14.     CONFLICTS		33
SCHEDULE 5.1 — GENERAL INFORMATION
SCHEDULE 5.2 — COLLATERAL IDENTIFICATION
SCHEDULE 5.4 — FINANCING STATEMENTS
SCHEDULE 5.5 — LOCATION OF EQUIPMENT AND INVENTORY
SCHEDULE 5.7 — INTELLECTUAL PROPERTY – NON-INFRINGEMENT
EXHIBIT A — PLEDGE SUPPLEMENT
EXHIBIT B — UNCERTIFICATED SECURITIES CONTROL AGREEMENT
EXHIBIT C – PATENT SECURITY AGREEMENT
EXHIBIT D – TRADEMARK SECURITY AGREEMENT
EXHIBIT E – COPYRIGHT SECURITY AGREEMENT

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This PLEDGE AND SECURITY AGREEMENT, dated as of March 17, 2011 (as it may be amended, restated, supplemented or otherwise modified from time to time, this “Agreement”), among K-V PHARMACEUTICAL COMPANY, a Delaware corporation (the “Company”), certain Subsidiaries of the Company party hereto from time to time, whether as an original signatory hereto or as an Additional Grantor (as herein defined) (together with the Company, each, a “Grantor,” and collectively, the “Grantors”), and WILMINGTON TRUST FSB, as collateral agent for the Secured Parties (in such capacity as collateral agent, together with its successors and permitted assigns, the “Collateral Agent”).

RECITALS:

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

WHEREAS, the Company has issued $225,000,000 in aggregate principal amount of the 12% Senior Secured Notes due 2015 (the “Notes”) pursuant to the indenture dated as of the date hereof (as it may be amended, restated, supplemented or otherwise modified from time to time, the “Indenture”) by and among the Company, the Grantors and Wilmington Trust FSB, as trustee (in such capacity as trustee, together with its successors and permitted assigns in such capacity, the “Trustee”);

WHEREAS, to induce the purchasers of the Notes to purchase the Notes, each Grantor has agreed to secure the Obligations of each such Grantor under the Indenture and the Notes;

WHEREAS, the parties hereto desire to more fully set forth their respective rights in connection with such security interest as set forth herein; and

NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, and for other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, each Grantor and the Collateral Agent agree as follows:

SECTION 1. DEFINITIONS; GRANT OF SECURITY.

1.1 General Definitions. In this Agreement, the following terms shall have the following meanings:

“Account” shall mean any “account” as such term is defined in the UCC, and in any event shall include but shall not be limited to, all rights to payment of any monetary obligation, whether or not earned by performance, (i) for property that has been or is to be sold, leased, licensed, assigned or otherwise disposed of or (ii) for services rendered or to be rendered. Without limiting the foregoing, the term “account” shall include all Health-Care-Insurance Receivables.

“Additional Grantors” shall have the meaning assigned in Section 7.2.

“Agreement” shall have the meaning set forth in the preamble.

“ANDA” shall mean an abbreviated new drug application.

“Cash Proceeds” shall have the meaning assigned in Section 9.7.

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“Chattel Paper” shall mean “chattel paper” as such term is defined in the UCC. Without limiting the foregoing, the term “Chattel Paper” shall in any event include all Tangible Chattel Paper and all Electronic Chattel Paper.

“Collateral” shall have the meaning assigned in Section 2.1.

“Collateral Agent” shall have the meaning set forth in the preamble.

“Collateral Records” shall mean books, records, ledger cards, files, correspondence, customer lists, supplier lists, blueprints, technical specifications, manuals, computer software and related documentation, computer printouts, tapes, disks and other electronic storage media and related data processing software and similar items that at any time evidence or contain information relating to any of the Collateral or are otherwise necessary or helpful in the collection thereof or realization thereupon.

“Collateral Support” shall mean all property (real or personal) assigned, hypothecated or otherwise securing any Collateral and shall include any security agreement or other agreement granting a Lien or security interest in such real or personal property.

“Company” shall have the meaning set forth in the preamble.

“Contracts” shall mean (i) all contracts, agreements, licenses and covenants between any Grantor and one or more additional parties (including but not limited to purchase orders) and (ii) any NDA and ANDA.

“Contract Rights” shall mean all rights of any Grantor under each Contract, including, without limitation, (i) any and all rights to receive and demand payments under any or all Contracts, (ii) any and all rights to receive and compel performance under any or all Contracts and (iii) any and all other rights, interests and claims now existing or in the future arising in connection with any or all Contracts.

“Control” shall mean: (1) with respect to any Deposit Accounts, control within the meaning of Section 9-104 of the UCC, (2) with respect to any Securities Accounts, Security Entitlements, Commodity Contract or Commodity Account, control within the meaning of Section 9-106 of the UCC, (3) with respect to any Uncertificated Securities, control within the meaning of Section 8-106 of the UCC, (4) with respect to any Certificated Security, control within the meaning of Section 8-106 of the UCC, (5) with respect to any Electronic Chattel Paper, control within the meaning of Section 9-105 of the UCC, (6) with respect to Letter of Credit Rights, control within the meaning of Section 9-107 of the UCC and (7) with respect to any “transferable record” (as that term is defined in Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or in Section 16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction), control within the meaning of Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or in Section 16 of the Uniform Electronic Transactions Act as in effect in the jurisdiction relevant to such transferable record.

“Copyright Licenses” shall mean any and all Contracts providing for the granting of any right in or to any Copyright or otherwise providing for a covenant not to sue for infringement or other violation of any Copyright (whether such Grantor is licensee or licensor thereunder), including, without limitation, the agreements required to be set forth on Schedule 5.2(II) under the heading “Copyright Licenses”.

“Copyrights” shall mean all United States, and foreign copyrights (whether or not the underlying works of authorship have been published), including but not limited to copyrights in software and all rights in and to databases, all designs (including but not limited to industrial designs, Protected

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Designs within the meaning of 17 U.S.C. 1301 et. Seq. and Community designs), and all Mask Works (as defined under 17 U.S.C. 901 of the U.S. Copyright Act), whether registered or unregistered, as well as all reversionary interests, and termination rights, and, with respect to any and all of the foregoing: (i) all registrations and applications therefor including, without limitation, the registrations and applications required to be listed in Schedule 5.2(II) under the heading “Copyrights”, (ii) all extensions and renewals thereof, and (iii) all other rights of any kind accruing thereunder throughout the world.

“Domain Names” shall mean all internet domain names and associated URL addresses in or to which any Grantor now or hereafter has any right, title or interest.

“Equipment” shall mean any “equipment” as such term is defined in the UCC, and in any event, shall include, but shall not be limited to, all machinery, equipment, furnishings, fixtures and vehicles now or hereafter owned by any Grantor and any and all additions, substitutions and replacements of any of the foregoing and all accessions thereto, wherever located, together with all attachments, components, parts, equipment and accessories installed thereon or affixed thereto.

“Excluded Assets” shall have the meaning as specified in the Indenture.

“First Priority” shall mean, with respect to any Lien purported to be created in any Collateral pursuant to any Collateral Document, that such Lien is senior to all other Liens with respect to all Collateral and such Collateral is not subject to any Liens other than Permitted Liens.

“Grantor” and “Grantors” shall have the meaning set forth in the preamble.

“Indenture” shall have the meaning set forth in the preamble.

“Insurance” shall mean all insurance policies covering any or all of the Collateral (regardless of whether the Collateral Agent is the loss payee thereof).

“Intellectual Property” shall mean, the collective reference to all rights relating to intellectual property, whether arising under the United States, multinational or foreign laws or otherwise, including without limitation, Copyrights, Patents, Domain Names, Trademarks, Trade Secrets, Trade Secret Rights, and all rights under Copyright Licenses, Patent Licenses, Trademark Licenses and Trade Secret Licenses, and the right to sue or otherwise recover for any past, present and future infringement, dilution, misappropriation, or other violation or impairment thereof, including the right to receive all Proceeds therefrom, including without limitation license fees, royalties, income, payments, claims, damages and proceeds of suit, now or hereafter due and/or payable with respect thereto.

“Intellectual Property Security Agreement” shall mean each intellectual property security agreement executed and delivered by the applicable Grantors, substantially in the form set forth in Exhibit C, Exhibit D and Exhibit E, as applicable.

“Inventory” shall mean merchandise, inventory and goods, and all additions, substitutions and replacements thereof and all accessions thereto, wherever located, together with all goods, supplies, incidentals, packaging materials, labels, materials and any other items used or usable in manufacturing, processing, packaging or shipping same, in all stages of production from raw materials through work in process to finished goods, and all products and proceeds of whatever sort and wherever located any portion thereof which may be returned, rejected, reclaimed or repossessed by the Collateral Agent from any Grantor’s customers, and shall specifically include all “inventory” as such term is defined in the UCC.

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“Investment Accounts” shall mean the Securities Accounts, Commodity Accounts and Deposit Accounts.

“Investment Related Property” shall mean: (i) all “investment property” (as such term is defined in Article 9 of the UCC) and (ii) all of the following (regardless of whether classified as investment property under the UCC): all Pledged Equity Interests, Pledged Debt, the Investment Accounts and certificates of deposit.

“Material Intellectual Property” shall mean any Intellectual Property included in the Collateral that the Company has determined in its reasonable business judgment is material to the business of the Company and its Subsidiaries, taken as a whole.

“NDA” shall mean a new drug application.

“Notes” shall have the meaning set forth in the preamble.

“Patent Licenses” shall mean all Contracts providing for the granting of any right in or to any Patent or otherwise providing for a covenant not to sue for infringement or other violation of any Patent (whether such Grantor is licensee or licensor thereunder), including, without limitation, the agreements required to be set forth on Schedule 5.2(II) under the heading “Patent Licenses”.

“Patents” shall mean all United States and foreign patents and certificates of invention, or similar industrial property rights, and applications for any of the foregoing, including, without limitation: (i) each patent and patent application required to be listed in Schedule 5.2(II) under the heading “Patents”, (ii) all reissues, divisionals, continuations, continuations-in-part, extensions, renewals, and reexaminations thereof, and (iii) all other rights of any kind accruing thereunder throughout the world.

“Permits” shall mean, to the extent permitted to be assigned by the terms thereof or by applicable law, all licenses, permits, rights, orders, variances, franchises or authorizations of or from any governmental authority or agency (including but not limited to, all ANDAs and NDAs approved by the United States Food and Drug Administration).

“Pledge Supplement” shall mean any supplement to this Agreement in substantially the form of Exhibit A.

“Pledged Debt” shall mean all third-party indebtedness for borrowed money owed to such Grantor, whether or not evidenced by any Instrument, including, without limitation, all indebtedness described on Schedule 5.2(I) under the heading “Pledged Debt”, issued by the obligors named therein, the instruments, if any, evidencing any of the foregoing, and all interest, cash, instruments and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of the foregoing.

“Pledged Equity Interests” shall mean all Pledged Stock, Pledged LLC Interests, Pledged Partnership Interests and any other participation or interests in any equity or profits of any business entity including, without limitation, any trust and all management rights relating to any entity whose equity interests are included as Pledged Equity Interests.

“Pledged LLC Interests” shall mean all interests in any limited liability company (except MECW) and each series thereof including, without limitation, all limited liability company interests listed on Schedule 5.2(I) under the heading “Pledged LLC Interests” and the certificates, if any,

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representing such limited liability company interests and any interest of such Grantor on the books and records of such limited liability company or on the books and records of any securities intermediary pertaining to such interest and all dividends, distributions, cash, warrants, rights, options, instruments, securities and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such limited liability company interests and all rights as a member of the related limited liability company other than any such interests which constitute Excluded Assets, or are otherwise excluded from the Collateral pursuant to Section 2.2 hereof.

“Pledged Partnership Interests” shall mean all interests in any general partnership, limited partnership, limited liability partnership or other partnership including, without limitation, all partnership interests listed on Schedule 5.2(I) under the heading “Pledged Partnership Interests” and the certificates, if any, representing such partnership interests and any interest of such Grantor on the books and records of such partnership or on the books and records of any securities intermediary pertaining to such interest and all dividends, distributions, cash, warrants, rights, options, instruments, securities and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such partnership interests and all rights as a partner of the related partnership other than any such interests which constitute Excluded Assets, or are otherwise excluded from the Collateral pursuant to Section 2.2 hereof.

“Pledged Stock” shall mean all shares of capital stock owned by such Grantor, including, without limitation, all shares of capital stock described on Schedule 5.2(I) under the heading “Pledged Stock”, and the certificates, if any, representing such shares and any interest of such Grantor in the entries on the books of the issuer of such shares or on the books of any securities intermediary pertaining to such shares, and all dividends, distributions, cash, warrants, rights, options, instruments, securities and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such shares other than any such interests which constitute Excluded Assets, or are otherwise excluded from the Collateral pursuant to Section 2.2 hereof.

“Receivables” shall mean all rights to payment, whether or not earned by performance, for goods or other property sold, leased, licensed, assigned or otherwise disposed of, or services rendered or to be rendered, including, without limitation all such rights constituting or evidenced by any Account, Chattel Paper, Instrument, General Intangible, Investment Related Property or Letter of Credit Rights, together with all of Grantor’s rights, if any, in any goods or other property giving rise to such right to payment and all Collateral Support and Supporting Obligations related thereto and all Receivables Records.

“Receivables Records” shall mean (i) all original copies of all documents, instruments or other writings or electronic records or other Records evidencing the Receivables, (ii) all books, correspondence, credit or other files, Records, ledger sheets or cards, invoices, and other papers relating to Receivables, including, without limitation, all tapes, cards, computer tapes, computer discs, computer runs, record keeping systems and other papers and documents relating to the Receivables, whether in the possession or under the control of Grantor or any computer bureau or agent from time to time acting for Grantor or otherwise, (iii) all evidences of the filing of financing statements and the registration of other instruments in connection therewith, and amendments, supplements or other modifications thereto, notices to other creditors, secured parties or agents thereof, and certificates, acknowledgments, or other writings, including, without limitation, Lien search reports, from filing or other registration officers, (iv) all credit information, reports and memoranda relating thereto and (v) all other written or non-written forms of information related in any way to the foregoing or any Receivable.

“Secured Obligations” shall have the meaning assigned in Section 3.1.

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

“Trademark Licenses” shall mean any and all Contracts providing for the granting of any right in or to any Trademark or otherwise providing for a covenant not to sue for infringement, dilution or other violation of any Trademark or permitting co-existence with respect to a Trademark (whether such Grantor is licensee or licensor thereunder) , including, without limitation, the agreements required to be set forth on Schedule 5.2(II) under the heading “Trademark Licenses”.

“Trademarks” shall mean all United States, and foreign trademarks, trade names, trade dress, corporate names, company names, business names, fictitious business names, service marks, certification marks, collective marks, logos, other source or business identifiers and designs, whether or not registered, and with respect to any and all of the foregoing: (i) all registrations and applications therefor including, without limitation, the registrations and applications required to be listed in Schedule 5.2(II) under the heading “Trademarks”, (ii) all extensions or renewals of any of the foregoing, (iii) all of the goodwill of the business connected with the use of and symbolized by any of the foregoing, and (iv) all other rights of any kind accruing thereunder throughout the world.

“Trade Secret Licenses” shall mean any and all Contracts providing for the granting of any right in or to Trade Secrets (whether such Grantor is licensee or licensor thereunder), including, without limitation, the agreements required to be set forth on Schedule 5.2(II) under the heading “Trade Secret Licenses”.

“Trade Secrets” shall mean all trade secrets and all other confidential or proprietary information and know-how, whether or not the foregoing has been reduced to a writing or other tangible form, including all documents and things embodying, incorporating, or referring in any way to the foregoing, and all other similar rights of any kind accruing thereunder throughout the world.

“Trade Secret Rights” shall mean the rights of any Grantor in any Trade Secret it holds.

“Trustee” shall have the meaning set forth in the preamble.

“UCC” shall mean the Uniform Commercial Code as in effect from time to time in the State of New York; provided, however, that in the event that, by reason of mandatory provisions of law, any or all of the perfection or priority of, or remedies with respect to, any Collateral is governed by the Uniform Commercial Code as enacted and in effect in a jurisdiction other than the State of New York, the term “UCC” shall mean the Uniform Commercial Code as enacted and in effect in such other jurisdiction solely for purposes of the provisions hereof relating to such perfection, priority or remedies.

“United States” shall mean the United States of America.

1.2 Definitions; Interpretation. All capitalized terms used herein (including the preamble and recitals hereto) and not otherwise defined herein shall have the meanings ascribed thereto in the Indenture or the UCC (as in effect on the date hereof). The incorporation by reference of terms defined in the Indenture shall survive any termination of the Indenture until this Agreement is terminated as provided in Section 11 hereof. Any of

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

SECTION 2. GRANT OF SECURITY.

2.1 Grant of Security. Subject to Section 2.2, each Grantor hereby grants to the Collateral Agent, for the benefit of the Secured Parties, a security interest in and continuing Lien on all of such Grantor’s right, title and interest in, to and under all the following property interests and assets of any kind, nature or in any form whatsoever, of such Grantor, in each case whether now or hereafter existing or in which any Grantor now has or hereafter acquires an interest and wherever the same may be located (all of which being hereinafter collectively referred to as the “Collateral”):

(a) each and every Account;

(b) all cash, Cash Equivalents and Investments;

(c) all Chattel Paper and promissory notes;

(d) all Commercial Tort Claims now or hereafter in existence, including such claims described on Schedule 5.2(III);

(e) all Domain Names and Trade Secret Rights;

(f) all Contracts, together with all Contract Rights;

(g) all Intellectual Property;

(h) all Equipment;

(i) all Securities Accounts, Deposit Accounts and all other demand, deposit, time, savings, cash management, passbook and similar accounts (including, without limitation, the Interest Reserve Account) maintained by, or for the benefit of, such Grantor with any person and all monies, securities, Instruments and other investments deposited or required to be deposited in any of the foregoing;

(j) all Documents;

(k) all General Intangibles;

(l) all Goods;

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(m) all Instruments;

(n) all Inventory;

(o) all Financial Assets and Investment Related Property;

(p) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);

(q) all Permits;

(r) all Software and all Software licensing rights, all writings, plans, specifications and schematics, all engineering drawings, customer lists, goodwill and licenses, and all recorded data of any kind or nature, regardless of the medium of recording;

(s) all Supporting Obligations;

(t) all intercompany claims (including, without limitations, claims arising from the distribution by the Company of proceeds of the Notes);

(u) all Securities and all options and warrants to purchase Securities;

(v) all NDAs and ANDAs;

(w) all Insurance;

(x) all Receivables and Receivables Records;

(y) all Security Entitlements in any of the foregoing;

(z) to the extent not otherwise included above, all Collateral Records, Collateral Support and Supporting Obligations relating to any and all of the foregoing; and

(aa) to the extent not otherwise included above, all Proceeds, products, accessions, rents and profits of or in respect of any and all of the foregoing.

2.2 Certain Limited Exclusions.

(a) Notwithstanding anything herein to the contrary, in no event will the Collateral include and no Grantor will be deemed to have granted a security interest in (a) any of its right, title or interest in any trademark application filed on an “intent to use” basis until such time as a statement of use has been filed with and duly accepted by the United States Patent and Trademark Office and (b) with respect to each direct or indirect foreign subsidiary of the Company (each, a “Controlled Foreign Corporation”), any assets of such Controlled Foreign Corporation. Notwithstanding anything herein or the Indenture to the contrary, the security interest created by this Agreement shall not extend to, and the term Collateral shall not include, any Excluded Assets.

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(b) For the avoidance of doubt, notwithstanding anything herein or in the Indenture to the contrary, in no event shall the Collateral include, and no Grantor shall be deemed to have granted a security interest in, any of its right, title or interest in Makena or the Makena Agreement until such time as specified in Section 9.04(c) of the Indenture, and then only upon compliance with the requirements specified in such Section 9.04(c).

(c) Notwithstanding anything herein or in the Indenture to the contrary, no Grantor shall be required to pledge or create a security interest in any Capital Stock or other equity interests of any Foreign Subsidiary to the extent such action (i) violates applicable law (including corporate benefit, financial assistance, fraudulent preference, thin capitalization rules and similar laws or regulations which limit the ability to provide collateral security on local assets or properties) and/or (ii) would reasonably be expected to violate or conflict with any fiduciary duties of officers or directors of such Foreign Subsidiary or result in a risk of personal or criminal liability of any officer or director of such Foreign Subsidiary, in each case as certified to the Collateral Agent by an officer of the Issuer.

SECTION 3. SECURITY FOR OBLIGATIONS; GRANTORS REMAIN LIABLE.

3.1 Security for Obligations. This Agreement secures, and the Collateral is collateral security for, the prompt and complete payment or performance in full when due, whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise, of all Obligations with respect to the Securities (the “Secured Obligations”).

3.2 Continuing Liability Under Collateral. Notwithstanding anything herein to the contrary, (i) each Grantor shall remain liable for all obligations under the Collateral and nothing contained herein is intended or shall be a delegation of duties to the Collateral Agent or any other Secured Party, (ii) each Grantor shall remain liable under each of the agreements included in the Collateral, including, without limitation, any agreements relating to Pledged Partnership Interests or Pledged LLC Interests, to perform all of the obligations undertaken by it thereunder all in accordance with and pursuant to the terms and provisions thereof, (iii) neither the Collateral Agent nor any Secured Party shall have any obligation or liability under any Collateral or under each of the agreements included in the Collateral by reason of or arising out of this Agreement or any other document related thereto nor shall the Collateral Agent nor any Secured Party have any obligation to make any inquiry as to the nature or sufficiency of any payment received by it, have any obligation to take any action to collect or enforce any rights under any agreement included in the Collateral, including, without limitation, any agreements relating to Pledged Partnership Interests or Pledged LLC Interests or have any obligation to verify or monitor compliance by such Grantor or other party under such agreements, and (iv) the exercise by the Collateral Agent of any of its rights hereunder shall not release any Grantor from any of its duties or obligations under the contracts and agreements included in the Collateral.

SECTION 4. CERTAIN PERFECTION REQUIREMENTS

4.1 Delivery Requirements

(a) With respect to any Certificated Securities included in the Collateral, each Grantor shall promptly (in any case, by no later than the time otherwise required hereunder and under the Indenture) deliver to the Collateral Agent the Security Certificates evidencing such Certificated Securities duly indorsed by an effective indorsement (within the meaning of Section 8-107 of the UCC), or

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accompanied by share transfer powers or other instruments of transfer duly endorsed by such an effective endorsement, in each case, to the Collateral Agent or in blank.

(b) With respect to any Instruments or Tangible Chattel Paper included in the Collateral, each Grantor shall promptly (in any case, by no later than the time otherwise required hereunder and under the Indenture) deliver to the Collateral Agent all such Instruments or Tangible Chattel Paper to the Collateral Agent duly indorsed in blank.

4.2 Control Requirements

(a) With respect to any Deposit Accounts, Securities Accounts, Security Entitlements, Commodity Accounts and Commodity Contracts included in the Collateral, each Grantor shall, within the time period specified in the Indenture for any such Investment Account, Commodity Contracts and Security Entitlement existing on the Issue Date, and within 90 days of the opening of any such Investment Account, Commodity Contracts and Security Entitlement after the Issue Date, ensure that the Collateral Agent has Control thereof; provided that, notwithstanding the foregoing, the Company shall enter into the Interest Reserve Account Control Agreement on the Issue Date. With respect to any such Securities Accounts or Securities Entitlements, such Control shall be accomplished by the Grantor causing the Securities Intermediary maintaining such Securities Account or Security Entitlement to enter into an agreement in substance reasonably satisfactory to the Collateral Agent, within the time periods as specified in the preceding sentence, so that any such Securities Intermediary shall comply with the Collateral Agent’s Entitlement Orders without further consent by such Grantor. With respect to any such Deposit Account, each Grantor shall, within the time periods specified in the first sentence of this Section 4.2(a), cause the depositary institution maintaining such account to enter into an agreement in substance reasonably satisfactory to the Collateral Agent pursuant to which the Bank shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in the Deposit Account without further consent by such Grantor. Notwithstanding anything herein or in the Indenture to the contrary, the Company shall not be required to implement Control arrangements with respect to bank account xxxx-0040 at Bank of America (or any successor account), so long as such account consists exclusively of certificates of deposit or like instruments posted as collateral in favor of the issuers of letters of credit obtained by the Company in the ordinary course of business.

(b) With respect to any Uncertificated Security with a Fair Market Value in excess of $500,000, included in the Collateral (other than any Uncertificated Securities credited to a Securities Account) each Grantor shall cause the issuer of such Uncertificated Security to either promptly (i) register the Collateral Agent as the registered owner thereof on the books and records of the issuer or (ii) execute an agreement substantially in the form of Exhibit B hereto pursuant to which such issuer shall agree to comply with the Collateral Agent’s instructions with respect to disposition of funds in the Uncertificated Security without further consent by such Grantor.

(c) With respect to any Letter of Credit Rights with a Fair Market Value in excess of $500,000 included in the Collateral (other than any Letter of Credit Rights constituting a Supporting Obligation for a Receivable in which the Collateral Agent has a valid and perfected security interest), each Grantor shall use its commercially reasonable efforts to obtain the written consent of each issuer of each related letter of credit to the assignment of the proceeds of such letter of credit to the Collateral Agent.

(d) With respect any Electronic Chattel Paper with a Fair Market Value in excess of $500,000 or “transferable record” (as that term is defined in Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or in Section 16 of the Uniform Electronic Transactions

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Act as in effect in any relevant jurisdiction) included in the Collateral, each Grantor shall use commercially reasonable efforts to ensure that the Collateral Agent has Control thereof.

4.3 Intellectual Property Recording Requirements

(a) In the case of any Collateral (whether now owned or hereafter acquired) consisting of issued U.S. patents and pending applications therefor, each Grantor shall execute and deliver to the Collateral Agent a Patent Security Agreement substantially in the form of Exhibit C hereto and, by no later than 60 days after the end of each fiscal quarter, a supplement thereto covering all such patents and pending applications therefor (in each case, to the extent not already covered by such previous Patent Security Agreement or supplements thereto) in appropriate form for recordation with the U.S. Patent and Trademark Office with respect to the security interest of the Collateral Agent.

(b) In the case of any Collateral (whether now owned or hereafter acquired) consisting of registered U.S. federally registered trademarks and pending applications therefor, each Grantor shall execute and deliver to the Collateral Agent a Trademark Security Agreement in substantially the form of Exhibit D hereto and, by no later than 60 days after the end of each fiscal quarter, a supplement thereto covering all such trademarks and pending applications therefor (in each case, to the extent not already covered by such previous Trademark Security Agreement or supplements thereto) in appropriate form for recordation with the U.S. Patent and Trademark Office with respect to the security interest of the Collateral Agent.

(c) In the case of any Collateral (whether now owned or hereafter acquired) consisting of registered U.S. copyright registrations and exclusive Copyright Licenses in respect of registered U.S. Copyrights for which any Grantor is the licensee, each Grantor shall execute and deliver to the Collateral Agent a Copyright Security Agreement in substantially the form of Exhibit E hereto and, by no later than 60 days after the end of each fiscal quarter, a supplement thereto covering all such U.S. copyright registrations and Copyright Licenses (in each case, to the extent not already covered by such previous Copyright Security Agreement or supplements thereto) in appropriate form for recordation with the U.S. Copyright Office with respect to the security interest of the Collateral Agent.

4.4 Other Actions

(a) Subject to the Indenture and Section 2.2 hereof, if any issuer of any Pledged Equity Interest that is not otherwise an Excluded Asset is organized under a jurisdiction outside of the United States, each Grantor shall take, within the time periods specified in Section 9.04 of the Indenture, such additional actions which are necessary (or are otherwise reasonably requested by the Collateral Agent), which may include, without limitation, causing the issuer to register the required pledge (if any) on its books and records or making such filings or recordings, in each case as may be necessary or advisable, under the laws of such issuer’s jurisdiction to insure the validity, perfection and priority of the security interest of the Collateral Agent.

(b) Subject to the Indenture and Section 2.2 hereof, with respect to any Pledged Partnership Interests and Pledged LLC Interests included in the Collateral, if the Grantors own less than 100% of the equity interests in any issuer of such Pledged Partnership Interests or Pledged LLC Interests, Grantors shall use their commercially reasonable efforts to obtain the consent of each other holder of partnership interests or limited liability company interests in such issuer to the security interest of the Collateral Agent hereunder, and following the occurrence and during the continuance of an Event of Default, the transfer of such Pledged Partnership Interests and Pledged LLC Interests to the Collateral Agent or of its designee, and to the substitution of the Collateral Agent or its designee as a partner or member with all the rights and powers related thereto. Subject to the Indenture and Section 2.2 hereof,

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each Grantor consents to the grant by each other Grantor of a Lien in all Investment Related Property to the Collateral Agent and, without limiting the generality of the foregoing, consents to the transfer of any Pledged Partnership Interest and any Pledged LLC Interest to the Collateral Agent or its designee following the occurrence and during the continuance of an Event of Default and to the substitution of the Collateral Agent or its designee as a partner in any partnership or as a member in any limited liability company with all the rights and powers related thereto.

SECTION 5. REPRESENTATIONS AND WARRANTIES.

As of the date hereof, each Grantor hereby represents and warrants that:

5.1 Grantor Information & Status

(a) Schedule 5.1(A) and (B) sets forth under the appropriate headings: (1) the full legal name of such Grantor, (2) all trade names or other names under which such Grantor currently conducts business, (3) the type of organization of such Grantor, (4) the jurisdiction of organization of such Grantor, (5) its organizational identification number, if any, and (6) the jurisdiction where the chief executive office or its sole place of business is located;

(b) except as provided on Schedule 5.1(C), it has not changed its name, jurisdiction of organization, chief executive office or sole place of business (or principal residence if such Grantor is a natural person) or its corporate structure in any way (e.g., by merger, consolidation, change in corporate form or otherwise) and has not done business under any other name, in each case, within the past three (3) years;

(c) except as provided on Schedule 5.1(D), it has not within the last three (3) years become bound (whether as a result of merger or otherwise) as debtor under a security agreement entered into by another Person, which has not heretofore been terminated;

(d) such Grantor has been duly organized and is validly existing as an entity of the type as set forth opposite such Grantor’s name on Schedule 5.1(A) solely under the laws of the jurisdiction as set forth opposite such Grantor’s name on Schedule 5.1(A) and remains duly existing as such. Such Grantor has not filed any certificates of dissolution or liquidation, any certificates of domestication, transfer or continuance in any other jurisdiction; and

(e) no Grantor is a “transmitting utility” (as defined in Section 9-102(a)(80) of the UCC).

5.2 Collateral Identification, Special Collateral

(a) Schedule 5.2 sets forth under the appropriate headings all of such Grantor’s: (1) Pledged Equity Interests, (2) Pledged Debt, (3) Securities Accounts, (4) Deposit Accounts, (5) Commodity Contracts and Commodity Accounts, (6) United States registrations and issuances of and applications for Patents, Trademarks, and Copyrights owned by each Grantor (other than Intellectual Property registrations and applications owned by any Grantor that are either (A) expired or lapsed, (B) abandoned, or (C) Intellectual Property registrations or applications that such Grantor has instructed its applicable advisor, including in-house counsel, to abandon or allow to lapse), (7) material Copyright Licenses, Patent Licenses, Trademark Licenses and Trade Secret Licenses to which any Grantor is a party, but excluding computer software licenses and confidentiality/non-disclosure agreements, (8) Commercial Tort Claims, and (9) Letter of Credit Rights for letters of credit;

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(b) no material portion of the Collateral constitutes, or is the Proceeds of, (1) Farm Products, (2) As-Extracted Collateral, (3) Manufactured Homes, (4) Health-Care-Insurance Receivables; (5) timber to be cut, or (6) aircraft, aircraft engines, satellites, ships or railroad rolling stock. No material portion of the Collateral consists of motor vehicles or other goods subject to a certificate of title statute of any jurisdiction;

(c) all written information supplied by any Grantor with respect to the Collateral taken as a whole is accurate and complete in all material respects; and

(d) not more than 5% of the value of all tangible personal property included in the Collateral is located in any country other than the United States.

5.3 Ownership of Collateral and Absence of Other Liens

(a) Each Grantor owns the Collateral purported to be owned by it or otherwise has the rights it purports to have in each item of Collateral free and clear of any and all Liens, rights or claims of all other Persons other than any Permitted Liens; and

(b) other than any financing statements filed in favor of the Collateral Agent, no effective financing statement, fixture filing or other instrument similar in effect under any applicable law covering all or any part of the Collateral is on file in any filing or recording office except for (x) financing statements for which duly authorized proper termination statements have been filed and (y) financing statements filed in connection with Permitted Liens. Other than the Collateral Agent and any automatic control in favor of a Bank, Securities Intermediary or Commodity Intermediary maintaining a Deposit Account, Securities Account or Commodity Contract, no Person (other than the Collateral Agent) is in Control of any material portion of the Collateral (other than with respect to any bank accounts of the Grantors which are not subject to the control of the Collateral Agent pursuant to the terms of the Collateral Documents or as otherwise permitted under the Indenture).

5.4 Status of Security Interest

(a) upon the filing of financing statements naming each Grantor as “debtor” and the Collateral Agent as “secured party” and describing the Collateral as “all assets of the debtor, whether now existing or hereafter arising” in the filing offices set forth opposite such Grantor’s name on Schedule 5.4 hereof, the security interest of the Collateral Agent in all Collateral that can be perfected by the filing of a financing statement under the UCC as in effect in such jurisdiction will constitute a valid and perfected security interest, prior to any other Lien on such Collateral other than any Permitted Liens. Each agreement purporting to give the Collateral Agent Control over any Collateral is effective to establish the Collateral Agent’s Control of the Collateral subject thereto;

(b) to the extent perfection or priority of the security interest therein is not subject to Article 9 of the UCC, and upon recordation of the security interests granted pursuant to the Intellectual Property Security Agreements in the U.S. Patent and Trademark Office and the U.S. Copyright Office, the security interests granted to the Collateral Agent hereunder shall constitute valid, perfected, First Priority Liens in the United States with respect to the Intellectual Property identified in the schedules to such Intellectual Property Security Agreements (subject to Permitted Liens); and

(c) no authorization, consent, approval or other action by, and no notice to or filing with, any Governmental Authority or regulatory body or any other Person is required for either (i) the pledge or grant by any Grantor of the Liens purported to be created in favor of the Collateral Agent hereunder or (ii) the exercise by Collateral Agent of any rights or remedies in respect of any Collateral

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(whether specifically granted or created hereunder or created or provided for by applicable law), except (A) for the filings contemplated by Section 5.4(a) above or (B) as may be required, in connection with the disposition of any Investment Related Property, by laws generally affecting the offering and sale of Securities.

5.5 Goods & Receivables

(a) each material Receivable (i) is the legal, valid and binding obligation of the Account Debtor in respect thereof, representing an unsatisfied obligation of such Account Debtor, (ii) is enforceable in accordance with its terms, (iii) is not subject to any credits, rights of recoupment, setoffs, defenses, taxes, counterclaims except in the Ordinary Course of Business and (iv) is in compliance in all material respects with all applicable laws, whether federal, state, local or foreign;

(b) except as set forth in Schedule 5.5, none of the Account Debtors in respect of any material Receivable is the government of the United States, any agency or instrumentality thereof, any state or municipality or any foreign sovereign. No Receivable requires the consent of the Account Debtor in respect thereof in connection with the security interest hereunder, except any consent which has been obtained;

(c) no Goods produced by any Grantor and included in the Collateral have been produced in violation of the requirements of the Fair Labor Standards Act, as amended, or the rules and regulations promulgated thereunder; and

(d) all of the Equipment and Inventory included in the Collateral is located only at the locations specified in Schedule 5.5.

5.6 Pledged Equity Interests, Investment Related Property

(a) such Grantor is the record and beneficial owner of the Pledged Equity Interests free of all Liens (other than Permitted Liens), rights or claims of other Persons and there are no outstanding warrants, options or other rights to purchase, or shareholder, voting trust or similar agreements outstanding with respect to, or property that is convertible into, or that requires the issuance or sale of, any Pledged Equity Interests;

(b) no consent of any Person including any other general or limited partner, any other member of a limited liability company, any other shareholder or any other trust beneficiary is necessary in connection with the creation, perfection or priority status of the security interest (except for any Permitted Lien) of the Collateral Agent in any Pledged Equity Interests or the exercise by the Collateral Agent of the voting or other rights provided for in this Agreement or the exercise of remedies in respect thereof except such as have been obtained; and

(c) all of the Pledged LLC Interests and Pledged Partnership Interests are or represent interests that by their terms provide that they are securities governed by the uniform commercial code of an applicable jurisdiction.

5.7 Intellectual Property

(a) except as set forth on Schedule 5.7, no holding, decision, ruling, or judgment has been rendered in any action or proceeding before any court or administrative authority challenging the validity, enforceability, or scope of, or such Grantor’s right to register, own or use, any Material Intellectual Property owned by or, to such Grantor’s knowledge, exclusively licensed to, such Grantor,

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and no such action or proceeding is pending or, to such Grantor’s knowledge, threatened, in each case, other than office actions or similar actions issued in the ordinary course of prosecutions;

(b) all registrations, issuances and applications for Copyrights, Patents and Trademarks owned by such Grantor identified on Schedule 5.2 are standing in the name of such Grantor, and none of the Trademarks, Patents, Copyrights or Trade Secrets owned by such Grantor has been licensed by such Grantor to any Affiliate or third party, except as permitted under the Indenture, and any exclusive Copyright Licenses for which any Grantor is the licensee constituting Material Intellectual Property in respect of registered U.S. Copyrights have been properly recorded in the U.S. Copyright Office;

(c) except as permitted by the Indenture, such Grantor has not made a previous assignment, sale, transfer, exclusive license, or similar arrangement constituting a future assignment, sale, transfer, exclusive license or similar arrangement of any Material Intellectual Property that has not been terminated or released;

(d) such Grantor has used commercially reasonable efforts to use (i) appropriate statutory notice of registration in connection with its use of registered U.S. Trademarks owned or exclusively licensed to such Grantor, and (ii) appropriate notice of copyright in connection with the publication of material Copyrights owned or exclusively licensed to such Grantor, and such Grantor has not used marking practices in connection with its use of material Patents, Trademarks or Copyrights, in each case owned or exclusively licensed to such Grantor, that would jeopardize and/or impair, in any material respect, the value of such Intellectual Property;

(e) such Grantor has taken commercially reasonable efforts to protect the confidentiality of Trade Secrets owned by such Grantor and has not disclosed any material Trade Secrets to any third party unless such third party is subject to a valid and enforceable agreement providing for the confidentiality of the same;

(f) such Grantor controls the nature and quality of all products sold and all services rendered under or in connection with all material Trademarks owned by such Grantor, in each case substantially consistent with industry standards, and has taken all commercially reasonable action to insure that all licensees of the material Trademarks owned by such Grantor comply with such Grantor’s standards of quality; and

(g) except as set forth in Schedule 5.7, no settlement or consents, covenants not to sue, co-existence agreements, non-assertion assurances, or releases have been entered into by such Grantor or bind such Grantor in a manner that would reasonably be expected to adversely affect such Grantor’s rights to own, license or use any Intellectual Property in any material respect.

5.8 Secured Obligations

The provisions of this Agreement, together with completion of the actions specified herein and in the Indenture, are effective to create in favor of the Collateral Agent, for the benefit of the Secured Parties, legal, valid and perfected Liens on and security interests (having the priority provided for herein (subject to Permitted Liens)) in all right, title and interest in the Collateral, enforceable against each Grantor.

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SECTION 6. COVENANTS AND AGREEMENTS.

As long as the Secured Obligations remain outstanding (other than contingent obligations not yet due and payable) each Grantor hereby covenants and agrees (which covenants and agreements shall survive the execution and delivery of this Agreement) that:

6.1 Grantor Information and Status. The Company shall promptly notify the Collateral Agent of any change in any Grantor’s name, identity, corporate structure (e.g. by merger, consolidation, change in corporate form or otherwise), sole place of business, chief executive office, type of organization or jurisdiction of organization or establishment of any trade names and the Company shall take (and the Collateral Agent shall cooperate with the Company to the extent necessary) all actions reasonably necessary or advisable to maintain the continuous validity, perfection and the same or better priority of the Collateral Agent’s security interest in the Collateral granted or intended to be granted and agreed to hereby, which in the case of any merger or other change in corporate structure shall include, without limitation, executing and delivering to the Collateral Agent a completed Pledge Supplement together with all supplements to schedules thereto, promptly upon completion of such merger or other change in corporate structure confirming the grant of the security interest hereunder.

6.2 Collateral Identification; Special Collateral

(a) in the event that it hereafter acquires any Collateral of a type described in Section 5.2(a) hereof, it shall (i) with respect to Collateral of the type specified in Section 4.3, comply with the terms of Section 4.3 with respect thereto and (ii) with respect to other Collateral described in Section 5.2(a) notify the Collateral Agent thereof in writing by no later than 60 days after the end of the next occurring fiscal quarter and take such actions and execute such documents at such time in order to ensure that the Collateral Agent has a valid, perfected, First Priority security interest in such Collateral, subject to Permitted Liens.

(b) in the event that it hereafter acquires or has any Commercial Tort Claim in excess of $500,000 it shall promptly deliver to the Collateral Agent a completed Pledge Supplement together with all supplements to schedules thereto, identifying such new Commercial Tort Claims.

6.3 Impairment of Collateral. The applicable Grantor shall promptly notify the Collateral Agent if any material portion of the Collateral is damaged or destroyed or otherwise impaired or adversely affected.

6.4 Status of Security Interest. Subject to the terms of the Indenture, this Agreement and the other Collateral Documents, each Grantor shall maintain the security interest of the Collateral Agent hereunder in all material Collateral as a valid and perfected security interest, prior to any other Lien on such Collateral other than any Permitted Liens.

6.5 Goods and Receivables

(a) Other than in the ordinary course of business, each such Grantor shall not deliver any Document evidencing any Equipment and Inventory to any Person other than the issuer of such Document to claim the Goods evidenced therefor or the Collateral Agent;

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(b) [Reserved];

(c) each Grantor shall keep all material Equipment, Inventory and any Documents evidencing any such Equipment and Inventory in the locations specified on Schedule 5.5 unless it shall have notified the Collateral Agent in writing promptly following any change in location, by executing and delivering to the Collateral Agent a completed Pledge Supplement together with all supplements to schedules thereto;

(d) each Grantor shall keep and maintain at its own cost and expense records of the Receivables in the ordinary course of business and consistent with past practice;

(e) other than in the ordinary course of business and following the occurrence and during the continuation of an Event of Default, each Grantor shall not (w) grant any extension or renewal of the time of payment of any Receivable, (x) compromise or settle any dispute, claim or legal proceeding with respect to any Receivable for less than the total unpaid balance thereof, (y) release, wholly or partially, any Person liable for the payment thereof, or (z) allow any credit or discount thereon; and

(f) at any time following the occurrence and during the continuation of an Event of Default, the Collateral Agent may: (i) direct, or require any Grantor to direct, the Account Debtors under any Receivables to make payment of all amounts due or to become due to such Grantor thereunder directly to the Collateral Agent; (ii) notify, or require any Grantor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Collateral Agent; and (iii) enforce, at the expense of such Grantor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done. If the Collateral Agent notifies any Grantor that it has elected to collect the Receivables in accordance with the preceding sentence, any payments of Receivables received by such Grantor shall be forthwith (and in any event within five (5) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Collateral Agent as directed, and until so turned over, all amounts and proceeds (including checks and other instruments) received by such Grantor in respect of the Receivables, any Supporting Obligation or Collateral Support shall be received in trust for the benefit of the Collateral Agent hereunder and shall be segregated from other funds of such Grantor and such Grantor shall not adjust, settle or compromise the amount or payment of any Receivable, or release wholly or partly any Account Debtor or obligor thereof, or allow any credit or discount thereon.

6.6 Pledged Equity Interests, Investment Related Property

(a) except as provided in the next sentence, in the event such Grantor receives any dividends, interest or distributions on any Pledged Equity Interest or other Investment Related Property, upon the merger, consolidation, liquidation or dissolution of any issuer of any Pledged Equity Interest or Investment Related Property, then (a) such dividends, interest or distributions and securities or other property shall be included in the definition of Collateral without further action and (b) such Grantor shall promptly take all reasonable steps, if any, necessary or advisable to ensure the validity, perfection, priority and, if applicable, control of the Collateral Agent over such Investment Related Property (including, without limitation, delivery thereof to the Collateral Agent) and pending any such action such Grantor shall be deemed to hold such dividends, interest, distributions, securities or other property in trust for the benefit of the Collateral Agent and shall segregate such dividends, distributions, Securities or other property from all other property of such Grantor. Notwithstanding the foregoing, so long as no Event of Default shall have occurred and be continuing, the Collateral Agent authorizes each Grantor to retain all

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ordinary cash dividends and distributions paid in the normal course of the business and consistent with past practice and all scheduled payments of interest;

(b)

(i) So long as no Event of Default shall have occurred and be continuing, except as otherwise provided under the covenants and agreements relating to Investment Related Property in this Agreement or elsewhere herein, each Grantor shall be entitled to exercise or refrain from exercising any and all voting and other consensual rights pertaining to the Investment Related Property or any part thereof for any purpose not inconsistent in any material respect with the terms of this Agreement or the Indenture; it being understood, however, that neither the voting by such Grantor of any Pledged Stock for, or such Grantor’s consent to, the election of directors (or similar governing body) at a regularly scheduled annual or other meeting of stockholders or with respect to incidental matters at any such meeting, nor such Grantor’s consent to or approval of any action otherwise permitted under this Agreement and the Indenture, shall be deemed inconsistent with the terms of this Agreement or the Indenture within the meaning of this Section 6.6(b)(i); and

(ii) Upon the occurrence and during the continuation of an Event of Default:

(1) all rights of each Grantor to exercise or refrain from exercising the voting and other consensual rights which it would otherwise be entitled to exercise pursuant hereto shall cease and all such rights shall thereupon become vested in the Collateral Agent who shall thereupon have the sole right to exercise such voting and other consensual rights; and

(2) in order to permit the Collateral Agent to exercise the voting and other consensual rights which it may be entitled to exercise pursuant hereto and to receive all dividends and other distributions which it may be entitled to receive hereunder: (1) each Grantor shall promptly execute and deliver (or cause to be executed and delivered) to the Collateral Agent all proxies, dividend payment orders and other instruments as the Collateral Agent may from time to time reasonably request and (2) each Grantor acknowledges that the Collateral Agent may utilize the power of attorney set forth in Section 8.1.

(c) Subject to this Agreement and the Indenture, it shall not permit any issuer of any Pledged Equity Interests to merge or consolidate unless (i) such issuer creates a security interest that is perfected by a filed financing statement (that is not effective solely under section 9-508 of the UCC) in collateral in which such new debtor has or acquires rights, (ii) all the outstanding capital stock or other equity interests of the surviving or resulting corporation, limited liability company, partnership or other entity is, upon such merger or consolidation, pledged hereunder and no cash, securities or other property is distributed in respect of the outstanding equity interests of any other constituent Grantor and (iii) such Grantor promptly complies with the delivery and control requirements of Section 4 hereof.

6.7 Intellectual Property

(a) such Grantor shall not do any act or omit to do any act whereby any of the Material Intellectual Property may lapse, or become abandoned, canceled, dedicated to the public (other than at the end of its statutory term), forfeited, unenforceable or otherwise impaired, or which would adversely affect the validity, grant, or enforceability of the security interest granted therein;

(b) such Grantor shall not, with respect to any Trademarks owned by such Grantor and constituting Material Intellectual Property cease the use of any of such Trademarks or fail to maintain

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the level of the quality of products sold and services rendered under any of such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and such Grantor shall take all commercially reasonable steps to insure that licensees of such Trademarks use such consistent standards of quality;

(c) such Grantor shall promptly notify the Collateral Agent if it knows that any item of Material Intellectual Property may become (i) abandoned or dedicated to the public or placed in the public domain (other than at the end of such item’s statutory term), (ii) invalid or unenforceable, (iii) subject to any materially adverse determination or development regarding such Grantor’s ownership, registration or use or the validity or enforceability of such item of Material Intellectual Property (including the institution of, or any materially adverse development with respect to, any action or proceeding in the U.S. Patent and Trademark Office, the U.S. Copyright Office, any state registry, any foreign counterpart of the foregoing, or any court, but excluding typical day-to-day developments during the prosecution of any such Intellectual Property) or (iv) the subject of any reversion or termination rights;

(d) such Grantor shall take all commercially reasonable steps, including in any proceeding before the U.S. Patent and Trademark Office, the U.S. Copyright Office, any state registry or any foreign counterpart of the foregoing, to pursue any application and maintain any registration or issuance of each Trademark, Patent, and Copyright owned by or exclusively licensed to such Grantor and included in the Material Intellectual Property to the extent permitted or required by the applicable license agreement;

(e) subject to the effect of the applicable bankruptcy laws and other laws, such Grantor shall use commercially reasonable efforts so as not to permit the inclusion in any Contract to which it hereafter becomes a party of any provision that could or may in any way materially impair or prevent the creation of a security interest in, or the assignment of, such Grantor’s rights and interests in any property acquired under such contracts and included in the Material Intellectual Property, except for restrictions on transferability in leases or licenses where such Grantor believes, in its reasonable judgment, that such prohibition is usual and customary in transactions of such type;

(f) in the event that, to such Grantor’s knowledge, any Material Intellectual Property owned by or exclusively licensed to any Grantor is infringed, misappropriated, diluted or otherwise violated by a third party, such Grantor shall promptly take all commercially reasonable actions to stop such infringement, misappropriation, dilution or other violation and protect its rights in such Material Intellectual Property including, but not limited to, the initiation of a suit for injunctive relief and to recover damages (with respect to exclusively licensed Intellectual Property, to the extent permitted by the terms of the applicable license agreement);

(g) such Grantor shall use commercially reasonable efforts to protect the secrecy of all Trade Secrets owned by such Grantor, including, without limitation, entering into confidentiality agreements with employees and consultants and labeling and restricting access to secret information and documents;

(h) such Grantor shall use commercially reasonable efforts to use (i) appropriate statutory notice of registration in connection with its use of registered U.S. Trademarks owned or exclusively licensed to such Grantor, and (ii) appropriate notice of copyright in connection with the publication of material Copyrights owned or exclusively licensed to such Grantor, and such Grantor shall not sue marking practices in connection with its use of material Patents, Trademarks or Copyrights, in each case owned or exclusively licensed to such Grantor, that would jeopardize and/or impair, in any material respect, the value of such Intellectual Property; and

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(i) such Grantor shall continue to collect, at its own expense, all amounts due or to become due to such Grantor in respect of the Intellectual Property or any portion thereof. In connection with such collections, such Grantor may take (and, at the Collateral Agent’s reasonable direction, shall take) such action as such Grantor or the Collateral Agent may deem reasonably necessary or advisable to enforce collection of such amounts. Notwithstanding the foregoing, upon the occurrence and continuation of an Event of Default, the Collateral Agent shall have the right at any time, to notify, or require any Grantor to notify, any obligors with respect to any such amounts of the existence of the security interest created hereby.

6.8 Insurance

With respect to casualty insurance policies that, pursuant to Section 4.9 of the Indenture, have added a loss payable clause or endorsement naming the Collateral Agent, on behalf of the Secured Parties, as the loss payee thereunder, all insurance proceeds in excess of $500,000 per claim under such policies shall be paid to the Collateral Agent for (i) release to the Company or other applicable Grantor promptly upon their written request for application in accordance with Section 4.15(a)(iii) of the Indenture or (ii) application as otherwise required by the Indenture (it being understood that insurance proceeds less than or equal to $500,000, if paid to the Collateral Agent, will also be paid as aforesaid).

SECTION 7. FURTHER ASSURANCES; ADDITIONAL GRANTORS.

7.1 Further Assurances

(a) Subject to this Agreement and the Indenture, each Grantor agrees that from time to time, at the expense of such Grantor, that it shall promptly execute and deliver all further instruments and documents, and take all further action, that may be reasonably necessary (or otherwise reasonably requested by the Collateral Agent) in order to create and/or maintain the validity, perfection or priority of and protect any security interest granted or purported to be granted hereby or to enable the Collateral Agent to exercise and enforce its rights and remedies hereunder with respect to any Collateral. Without limiting the generality of the foregoing, each Grantor shall:

(i) file such financing or continuation statements, or amendments thereto, record security interests in Intellectual Property included in the Collateral and execute and deliver such other agreements, instruments, endorsements, powers of attorney or notices, in order to effect, reflect, perfect and preserve the security interests granted or purported to be granted hereby;

(ii) take all actions reasonably necessary to ensure the recordation of appropriate evidence of the Liens and security interest granted hereunder in any Intellectual Property included in the Collateral with the U.S. Patent and Trademark Office or the U.S. Copyright Office; and

(iii) appear in and defend (or take such other actions as the Company reasonably determines are appropriate) any action or proceeding that could reasonably be expected to materially adversely affect such Grantor’s title to or the Collateral Agent’s security interest in all or any material part of the Collateral.

(b) Without limiting the foregoing, each Grantor hereby authorizes the Collateral Agent to file a Record or Records, including, without limitation, financing or continuation statements, Intellectual Property Security Agreements and amendments and supplements to any of the foregoing, in any jurisdictions and with any filing offices as are reasonably necessary or advisable to perfect or

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otherwise protect the security interest granted to the Collateral Agent herein. Such financing statements may describe the Collateral in the same manner as described herein or may contain an indication or description of collateral that describes such property in any other manner as is necessary to ensure the perfection of the security interest in the Collateral granted to the Collateral Agent herein, including, without limitation, describing such property as “all assets, whether now owned or hereafter acquired, developed or created” or words of similar effect.

(c) Each Grantor hereby authorizes the Collateral Agent to modify this Agreement after obtaining such Grantor’s approval of or signature to such modification by amending Schedule 5.2 to include reference to any right, title or interest in any existing Intellectual Property or any Intellectual Property acquired or developed by any Grantor after the execution hereof or to delete any reference to any right, title or interest in any Intellectual Property in which any Grantor no longer has or claims any right, title or interest.

7.2 Additional Grantors. In accordance with Section 4.24 of the Indenture, from time to time subsequent to the date hereof, additional Persons may become parties hereto as additional Grantors (each, an “Additional Grantor”), by executing a Pledge Supplement. Upon delivery of any such Pledge Supplement to the Collateral Agent, notice of which is hereby waived by Grantors, each Additional Grantor shall be a Grantor and shall be as fully a party hereto as if such Additional Grantor were an original signatory hereto. Each Grantor expressly agrees that its Obligations arising hereunder shall not be affected or diminished by the addition or release of any other Grantor hereunder. This Agreement shall be fully effective as to any Grantor that is or becomes a party hereto regardless of whether any other Person becomes or fails to become or ceases to be a Grantor hereunder.

SECTION 8. CONCERNING THE COLLATERAL AGENT.

8.1 Power of Attorney. Without limiting any of such Grantor’s obligations and duties hereunder, each Grantor hereby irrevocably appoints the Collateral Agent (such appointment being coupled with an interest) as such Grantor’s attorney-in-fact, with full authority in the place and stead of such Grantor and in the name of such Grantor, the Collateral Agent or otherwise, from time to time (i) to prepare and file any UCC financing statements against such Grantor as debtor in accordance with the terms of this Agreement and the Indenture, (ii) to prepare, sign, and file for recordation in any intellectual property registry, appropriate evidence of the Lien and security interest granted herein in any Intellectual Property owned by any Grantor or exclusive Copyright Licenses in respect of U.S. registered Copyrights for which any Grantor is licensee in the name of such Grantor as debtor in accordance with the terms of this Agreement and the Indenture and (iii) upon the occurrence and during the continuance of an Event of Default, in the Collateral Agent’s discretion to take any appropriate action and to execute any instrument that the Collateral Agent may deem reasonably necessary or advisable to accomplish the purposes of this Agreement, including, without limitation, the following:

(a) to obtain and adjust insurance required to be maintained by such Grantor or paid to the Collateral Agent pursuant to Section 4.09 of the Indenture;

(b) to ask for, demand, collect, sue for, recover, compound, receive and give acquittance and receipts for monies due and to become due under or in respect of any of the Collateral;

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(c) to receive, endorse and collect any drafts or other instruments, documents and chattel paper in connection with clause (b) above;

(d) to file any claims or take any action or institute any proceedings that the Collateral Agent may deem necessary or desirable for the collection of any of the Collateral or otherwise to enforce the rights of the Collateral Agent with respect to any of the Collateral;

(e) to take or cause to be taken all actions necessary to perform or comply or cause performance or compliance with the terms of this Agreement, including, without limitation, access to pay or discharge taxes or Liens (other than Permitted Liens) levied or placed upon or threatened against the Collateral, the legality or validity thereof and the amounts necessary to discharge the same to be determined by the Collateral Agent in its reasonable discretion, any such payments made by the Collateral Agent to become Obligations of such Grantor to the Collateral Agent, due and payable immediately without demand; and

(f) generally to sell, transfer, lease, license, pledge, make any agreement with respect to or otherwise deal with any of the Collateral as fully and completely as though the Collateral Agent were the absolute owner thereof for all purposes, and to do, at the Collateral Agent’s option and such Grantor’s expense, at any time or from time to time, all acts and things that the Collateral Agent deems reasonably necessary to protect, preserve or realize upon the Collateral and the Collateral Agent’s security interest therein in order to effect the intent of this Agreement, all as fully and effectively as such Grantor might do.

8.2 Duties of the Collateral Agent.

(a) If an Event of Default has occurred and is continuing and the Collateral Agent has received written notice thereof from a Grantor or the Trustee, the Collateral Agent may exercise such of the rights and powers vested in it by the Indenture, this Agreement and the other Collateral Documents. The permissive right of the Collateral Agent to take or refrain from taking any actions enumerated in the Indenture, this Agreement or any other Collateral Document shall not be construed as a duty and the Collateral Agent shall not be subject to any fiduciary or other implied duties of any kind or nature to any Secured Party, regardless of whether an Event of Default has occurred or is occurring;

(b) (i) the contractual duties of the Collateral Agent shall be determined solely by the express provisions of this Agreement and the Indenture, and the Collateral Agent need perform only those contractual duties that are specifically set forth in the Indenture, this Agreement and the other Collateral Documents and no others, and no implied covenants or obligations shall be read into the Indenture, this Agreement or the other Collateral Documents against the Collateral Agent; and (ii) in the absence of bad faith on its part, the Collateral Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon Officers’ Certificates or Opinions of Counsel furnished to the Collateral Agent.

(c) The Collateral Agent may not be relieved from liability for its own gross negligent action, its own grossly negligent failure to act, or its own willful misconduct, except that:

(i) this paragraph does not limit the effect of paragraph (b) or (e) of this Section 8.2;

(ii) the Collateral Agent shall not be liable for any error of judgment made in good faith by an officer of the Collateral Agent, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts; and

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(iii) the Collateral Agent shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it at the direction of the Secured Parties, or for the method and place of conducting any proceeding for any remedy available to the Collateral Agent, or exercising any trust or power conferred upon the Collateral Agent, under this Agreement or any other Collateral Document.

(d) Whether or not therein expressly so provided, every provision of this Agreement or any provision of any other Collateral Document that in any way relates to the Collateral Agent is subject to paragraphs (a), (b), (c), (e) and (f) of this Section 8.2.

(e) No provision of this Agreement or any other Collateral Document shall require the Collateral Agent to expend or risk its own funds or incur any liability.

(f) The Collateral Agent shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Grantors. Money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law.

8.3 Rights of the Collateral Agent.

(a) The Collateral Agent may conclusively rely and shall be fully protected in acting or refraining from acting on any document believed by it to be genuine and to have been signed or presented by the proper Person. The Collateral Agent need not investigate any fact or matter stated in any such document. The Collateral Agent shall not be obligated to communicate with or deal in any way with any Secured Party other than the Trustee.

(b) The Collateral Agent may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any attorney or agent appointed with due care.

(c) The Collateral Agent shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the rights or powers conferred upon it by this Agreement or any other Collateral Document. Whenever in the administration of the Indenture, this Agreement or any Collateral Document the Collateral Agent shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Collateral Agent (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, conclusively rely upon an Officers’ Certificate. In no event shall the Collateral Agent be liable under or in connection with the Indenture, this Agreement or other Collateral Documents for indirect, special, incidental, punitive or consequential losses or damages of any kind whatsoever, including but not limited to lost profits, whether or not foreseeable, even if the Collateral Agent has been advised of the possibility thereof and regardless of the form of action in which such damages are sought.

(d) Unless otherwise specifically provided in the Indenture, this Agreement or any other Collateral Document, any demand, request, direction or notice from any Grantor shall be sufficient if evidenced by an Officer’s Certificate.

(e) The Collateral Agent shall be under no obligation to exercise any of the rights or powers vested in it by the Indenture, this Agreement or any other Collateral Document at the request or direction of any of the Secured Parties unless such Secured Parties shall have offered to the Collateral Agent security and indemnity satisfactory to the Collateral Agent against the costs, expenses and liabilities that might be incurred by it in compliance with such request or direction.

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(f) The Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or documents, but the Collateral Agent, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Collateral Agent shall determine to make such further inquiry or investigation, it shall be entitled to examine during normal business hours and upon reasonable notice the books, records and premises of any Grantor, personally or by agent or attorney at the sole cost of the Grantors, and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation.

(g) The rights, privileges, protections and benefits given to the Collateral Agent, including, without limitation, its rights to be indemnified, are extended to, and shall be enforceable by, the Collateral Agent in each of its capacities hereunder, and to each agent, custodian and other Persons employed to act hereunder or under any Collateral Document.

(h) The Collateral Agent may request that the Grantors deliver an Officers’ Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to the Indenture, this Agreement or any other Collateral Document, which Officers’ Certificate may be signed by any person authorized to sign an Officers’ Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded.

(i) In connection with exercising any right or discretionary duty hereunder or under any of the Collateral Documents, the Collateral Agent shall be entitled to rely upon the direction of the Holders of a majority in aggregate principal amount of the Securities. The Collateral Agent shall not have any liability for taking any action at the direction of such party, or for any failure or delay of any such party to provide timely direction to the Collateral Agent. Notwithstanding any other provision of this Agreement, (i) any such direction may not conflict with any rule of law or with this Agreement and (ii) the Collateral Agent shall not be required to take any action that it determines might involve it in liability (unless the Collateral Agent has received satisfactory indemnity or security against such liability).

(j) The Collateral Agent shall enjoy all the same rights, protections, immunities and indemnities granted to it and to the Trustee under the Indenture as though set forth in full herein (with any references to the Trustee therein being deemed to refer to the Collateral Agent). In performing its functions and duties solely under this Agreement, the Collateral Agent shall act solely as the agent of the Secured Parties and does not assume, nor shall be deemed to have assumed, any obligation or relationship of trust with or for the Secured Parties.

(k) The Collateral Agent may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants or experts.

8.4 Individual Rights of Collateral Agent.

Notwithstanding anything to the contrary, the Collateral Agent in its individual or any other capacity may become the owner or pledgee of Secured Obligations and may otherwise deal with any Grantor or any Affiliate of any Grantor with the same rights it would have if it were not the Collateral Agent.

8.5 Collateral Agent’s Disclaimer.

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The Collateral Agent shall not be responsible for and makes no representation as to the validity or adequacy of this Agreement or any other Collateral Document, or the existence, genuineness, value or protection of any Collateral (except for the safe custody of Collateral in its possession and the accounting for proceeds of Collateral actually received by it in accordance with the terms hereof), the legality, effectiveness or sufficiency of any Collateral Document, or the creation, perfection, priority, sufficiency or protection of any Lien on any Collateral, and it shall not be responsible for any statement or recital in this Agreement or any other Collateral Document.

8.6 Replacement of Collateral Agent.

(a) A resignation or removal of the Collateral Agent and appointment of a successor Collateral Agent shall become effective only upon the successor Collateral Agent’s acceptance of appointment as provided in this Section 8.6. The Collateral Agent may resign in writing at any time by so notifying the Company and the Trustee. The Company may remove the Collateral Agent if:

(i) the Collateral Agent is removed as Trustee under the Indenture;

(ii) the Collateral Agent fails to comply with Section 8.2 hereof;

(iii) the Collateral Agent is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Collateral Agent under the Bankruptcy Code;

(iv) a custodian or public officer takes charge of the Collateral Agent or its property; or

(v) in the reasonable discretion of the Company, the Collateral Agent becomes incapable of acting.

(b) If the Collateral Agent resigns or is removed or if a vacancy exists in the office of the Collateral Agent for any reason, the Company shall promptly appoint a successor Collateral Agent which complies with any eligibility requirements contained in the Indenture.

(c) If a successor Collateral Agent does not take office within 30 days after the retiring Collateral Agent resigns or is removed, the retiring Collateral Agent, the Company or the holders of at least 10% in principal amount of the then outstanding principal amount of Secured Obligations may petition any court of competent jurisdiction for the appointment of a successor Collateral Agent.

(d) A successor Collateral Agent shall deliver a written acceptance of its appointment to the retiring Collateral Agent and to the Company. Thereupon, the resignation or removal of the retiring Collateral Agent shall become effective, and the successor Collateral Agent shall have all the rights, powers and the duties of the Collateral Agent under this Agreement and the other Collateral Documents. The successor Collateral Agent shall mail a notice of its succession to the Trustee. The retiring Collateral Agent shall promptly transfer all property held by it as Collateral Agent to the successor Collateral Agent.

(e) If Wilmington Trust FSB is removed or resigns as Trustee and as Collateral Agent, such resignation or removal shall only become effective upon both a successor Trustee and Collateral Agent being appointed hereunder and under the Indenture.

8.7 Successor Collateral Agent by Merger, Etc.

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If the Collateral Agent consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business to, another Person, the successor Person without any further act shall be the successor Collateral Agent under this Agreement and the other Collateral Documents.

8.8 Eligibility.

There shall at all times be a Collateral Agent hereunder that meets the requirements for being a trustee under the Indenture (prior to the discharge or defeasance of the Indenture).

8.9 Co-Collateral Agent; Separate Collateral Agent.

At any time or times, for the purpose of meeting the legal requirements of any jurisdiction in which any of the Collateral may at the time be located, the Company and the Collateral Agent shall have the power to appoint agents and sub-agents to the extent permitted under the Indenture.

8.10 Liability; Enforcement Expenses; Indemnification

(a) Neither the Collateral Agent nor any of its affiliates, directors, officers, agents or employees shall be liable for any action taken or not taken by it in connection herewith (i) with the consent or at the request or direction of a Secured Party as provided herein or (ii) in the absence of its own gross negligence or willful misconduct. Neither the Collateral Agent nor any of its affiliates, directors, officers, agents or employees shall be responsible for or have any duty to ascertain, inquire into or verify (i) any statement, warranty or representation made in connection with this Agreement; (ii) the performance or observance of any of the covenants or agreements of the Grantors; (iii) the receipt of items required to be delivered to the Collateral Agent; or (iv) the validity, effectiveness or genuineness of this Agreement, the other Collateral Documents or any other instrument or writing furnished in connection herewith. The Collateral Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, telex or similar writing) reasonably believed by it to be genuine or to be signed by the proper party or parties. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement or any other Collateral Document or any other document furnished in connection herewith or therewith in accordance with a written direction or a request of the Grantors or Secured Parties pursuant to the terms of this Agreement or other Collateral Document.

(b) Each Grantor jointly and severally agrees to pay, indemnify or reimburse the Collateral Agent for all its reasonable, out-of-pocket costs and expenses incurred in collecting against such Grantor and enforcing or preserving any rights under this Agreement and the other Collateral Documents, including, without limitation, the reasonable, out-of-pocket fees and disbursements of counsel to the Collateral Agent.

(c) Each Grantor agrees to pay, indemnify and to hold the Collateral Agent harmless from, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes (if any) which may be payable or determined to be payable with respect to any of the Collateral or in connection with any of the transactions contemplated by this Agreement.

(d) Each Grantor agrees to pay, indemnify and to hold the Collateral Agent harmless from any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever incurred without gross negligence or willful misconduct with respect to the execution, delivery, enforcement, performance and administration of this Agreement.

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(e) The agreements in this Section shall survive (i) any resignation or removal of the Collateral Agent hereunder or (ii) repayment of the Obligations and all other amounts payable under the Indenture, the Collateral Documents and the Securities.

SECTION 9. REMEDIES.

9.1 Generally. Subject to the provisions of the Indenture:

(a) If any Event of Default shall have occurred and be continuing, the Collateral Agent may exercise in respect of the Collateral, in addition to all other rights and remedies provided for herein or otherwise available to it at law or in equity, all the rights and remedies of the Collateral Agent on default under the UCC (whether or not the UCC applies to the affected Collateral) to collect, enforce or satisfy any Secured Obligations then owing, whether by acceleration or otherwise, and also may pursue any of the following separately, successively or simultaneously:

(i) require any Grantor to, and each Grantor hereby agrees that it shall at its expense and promptly upon request of the Collateral Agent forthwith, assemble all or part of the Collateral as directed by the Collateral Agent and make it available to the Collateral Agent at a place to be designated by the Collateral Agent that is reasonably convenient to both parties;

(ii) enter onto the property where any Collateral is located and take possession thereof with or without judicial process;

(iii) prior to the disposition of the Collateral, store, process, repair or recondition the Collateral or otherwise prepare the Collateral for disposition in any manner to the extent the Collateral Agent deems appropriate;

(iv) without notice except as specified below or under the UCC, sell, assign, lease, license (on an exclusive or nonexclusive basis) or otherwise dispose of the Collateral or any part thereof in one or more parcels at public or private sale, at any of the Collateral Agent’s offices or elsewhere, for cash, on credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Collateral Agent may deem commercially reasonable; and

(v) exercise voting and other consensual rights with respect to the Investment Related Property.

(b) The Collateral Agent or any other Secured Party may be the purchaser of any or all of the Collateral at any public or private (to the extent the portion of the Collateral being privately sold is of a kind that is customarily sold on a recognized market or the subject of widely distributed standard price quotations) sale in accordance with the UCC and the Collateral Agent or any other Secured Party, shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale made in accordance with the UCC, to use and apply any of the Secured Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent or any other Secured Party at such sale. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Grantor, and each

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Grantor hereby waives (to the extent permitted by applicable law) all rights of redemption, stay and/or appraisal which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted. Each Grantor agrees that, to the extent notice of sale shall be required by law, at least ten (10) days notice (or such lesser time as commercially reasonable) to such Grantor of the time and place of any public sale or the time after which any private sale is to be made shall constitute reasonable notification. The Collateral Agent shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. The Collateral Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. Each Grantor agrees that it would not be commercially unreasonable for the Collateral Agent to dispose of the Collateral or any portion thereof by using Internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capability of doing so, or that match buyers and sellers of assets. Each Grantor hereby waives any claims against the Collateral Agent arising by reason of the fact that the price at which any Collateral may have been sold at such a private sale was less than the price which might have been obtained at a public sale, even if the Collateral Agent accepts the first offer received and does not offer such Collateral to more than one offeree. If the proceeds of any sale or other disposition of the Collateral are insufficient to pay all the Secured Obligations, Grantors shall be liable for the deficiency and the reasonable fees of any attorneys employed by the Collateral Agent to collect such deficiency. Each Grantor further agrees that a breach of any of the covenants contained in this Section will cause irreparable injury to the Collateral Agent, that the Collateral Agent has no adequate remedy at law in respect of such breach and, as a consequence, that each and every covenant contained in this Section shall be specifically enforceable against such Grantor, and such Grantor hereby waives and agrees not to assert any defenses against an action for specific performance of such covenants except for a defense that no default has occurred giving rise to the Secured Obligations becoming due and payable prior to their stated maturities. Nothing in this Section shall in any way limit the rights of the Collateral Agent hereunder.

(c) The Collateral Agent may sell the Collateral without giving any warranties as to the Collateral. The Collateral Agent may specifically disclaim or modify any representations and warranties of title or the like. This procedure will not be considered to adversely affect the commercial reasonableness of any sale of the Collateral.

(d) The Collateral Agent shall have no obligation to marshal any of the Collateral.

9.2 Application of Proceeds. All proceeds received by the Collateral Agent in respect of any sale of, any collection from, or other realization upon all or any part of the Collateral (less all the costs and expenses of the Collateral Agent in respect of such sale or collection) shall be applied in accordance with Section 6.10 of the Indenture.

9.3 [Reserved].

9.4 Investment Related Property. Subject to the provisions of this Agreement and the Indenture, each Grantor recognizes that, by reason of certain prohibitions contained in the Securities Act and applicable state securities laws, the Collateral Agent may be compelled, with respect to any sale of all or any part of the Investment Related Property conducted without prior registration or qualification of such Investment Related Property under the Securities Act and/or such state securities laws, to limit purchasers to those who will agree, among other things, to acquire the Investment Related Property for their own account, for investment and not

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with a view to the distribution or resale thereof (such sale, a “private sale” for purposes of this Section). Each Grantor acknowledges that such private sale may be viewed as a “public sale” for purposes of the UCC. Each Grantor acknowledges that any such private sale may be at prices and on terms less favorable than those obtainable through a “public sale” for purposes of the Securities Act without such restrictions (including a public offering made pursuant to a registration statement under the Securities Act) and, notwithstanding such circumstances, each Grantor agrees that any such private sale shall be deemed to have been made in a commercially reasonable manner and that the Collateral Agent shall have no obligation to engage in public sales and no obligation to delay the sale of any Investment Related Property for the period of time necessary to permit the issuer thereof to register it for a form of public sale requiring registration under the Securities Act or under applicable state securities laws, even if such issuer would, or should, agree to so register it. If the Collateral Agent determines to exercise its right to sell any or all of the Investment Related Property, upon written request, each Grantor shall and shall cause each issuer of any Pledged Stock to be sold hereunder, each partnership and each limited liability company from time to time to furnish to the Collateral Agent all such information as the Collateral Agent may request in order to determine the number and nature of interest, shares or other instruments included in the Investment Related Property which may be sold by the Collateral Agent in exempt transactions under the Securities Act and the rules and regulations of the Securities and Exchange Commission thereunder, as the same are from time to time in effect.

9.5 Intellectual Property License

Subject to the provisions of this Agreement and the Indenture, the Company (individually and on behalf of each of the Grantors) hereby grants to the Collateral Agent a non-exclusive, irrevocable, perpetual (until terminated in accordance with this Agreement), world-wide, royalty-free license (which shall include without limitation the right to grant sublicenses) to use and exploit the Grantor’s Intellectual Property in any manner whatsoever, including without limitation the right to make, use, sell, offer for sale, import and export products and services incorporating such Intellectual Property for the purpose of enabling the Collateral Agent, during the continuance of an Event of Default, to exercise rights and remedies under Section 9 hereof at such time, as the Collateral Agent shall be lawfully entitled to exercise such rights and remedies. The license granted hereunder shall be subject to pre-existing licenses granted by the Grantors to other persons, and, with respect to Trademarks, in the event the license set forth in this Section is exercised with regard to any Trademarks, then the licensed Trademarks shall only be used in association with goods or services of a quality and nature consistent with the quality and reputation with which such Trademarks were associated when used by Grantors prior to the exercise of the license rights set forth herein.

9.6 Intellectual Property

Subject to the provisions of this Agreement and the Indenture:

(a) Anything contained herein to the contrary notwithstanding, in addition to the other rights and remedies provided herein, upon the occurrence of and during the continuation of an Event of Default:

(i) the Collateral Agent shall have the right (but not the obligation), upon notice to the applicable Grantor, to bring suit or otherwise commence any action or proceeding in the name of any Grantor, the Collateral Agent or otherwise, in the Collateral Agent’s sole discretion, to enforce any Intellectual Property rights of such Grantor included in the Collateral, in which event such Grantor shall, at the reasonable request of the Collateral Agent, do any and all lawful acts and execute any and all documents required by the Collateral Agent in aid of such enforcement, and such Grantor shall promptly, upon demand, reimburse and indemnify the

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Collateral Agent as provided in Section 12 hereof in connection with the exercise of its rights under this Section 9.6, and, to the extent that the Collateral Agent shall elect not to bring suit to enforce any Intellectual Property rights as provided in this Section 9.6, each Grantor agrees to use all commercially reasonable measures, whether by action, suit, proceeding or otherwise, to prevent the infringement, misappropriation, dilution or other violation of any of such Grantor’s rights in the Intellectual Property included in the Collateral by others and for that purpose agrees to diligently maintain any action, suit or proceeding against any Person so infringing, misappropriating, diluting or otherwise violating as shall be necessary to prevent such infringement, misappropriation, dilution or other violation;

(ii) upon written demand from the Collateral Agent, each Grantor shall grant, assign, convey or otherwise transfer to the Collateral Agent or such Collateral Agent’s designee all of such Grantor’s right, title and interest in and to any Intellectual Property included in the Collateral and shall execute and deliver to the Collateral Agent such documents as are necessary or appropriate to carry out the intent and purposes of this Agreement;

(iii) each Grantor agrees that such an assignment and/or recording shall be applied to reduce the Secured Obligations outstanding only to the extent that the Collateral Agent (or any other Secured Party) receives cash proceeds in respect of the sale of any such Intellectual Property;

(iv) within five (5) Business Days after written notice from the Collateral Agent, each Grantor shall make available to the Collateral Agent, to the extent within such Grantor’s power and authority, such personnel in such Grantor’s employ on the date of such Event of Default as the Collateral Agent may reasonably designate, by name, title or job responsibility, to permit such Grantor to continue, directly or indirectly, to produce, advertise and sell the products and services sold or delivered by such Grantor under or in connection with any Trademarks or Trademark Licenses, such persons to be available to perform their prior functions on the Collateral Agent’s behalf (but such Persons shall continue to be compensated by such Grantor); and

(v) the Collateral Agent shall have the right to notify, or require each Grantor to notify, any obligors with respect to amounts due or to become due to such Grantor in respect of any Intellectual Property of such Grantor included in the Collateral, of the existence of the security interest created herein, to direct such obligors to make payment of all such amounts directly to the Collateral Agent, and, upon such notification and at the expense of such Grantor, to enforce collection of any such amounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done;

(1) all amounts and proceeds (including checks and other instruments) received by Grantor in respect of amounts due to such Grantor in respect of the Collateral or any portion thereof shall be received in trust for the benefit of the Collateral Agent hereunder, shall be segregated from other funds of such Grantor and shall be forthwith paid over or delivered to the Collateral Agent in the same form as so received (with any necessary endorsement) to be held as cash Collateral and applied as provided by Section 9.7 hereof; and

(2) Grantor shall not adjust, settle or compromise the amount or payment of any such amount or release wholly or partly any obligor with respect thereto or allow any credit or discount thereon.

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(b) If (i) an Event of Default shall have occurred and, by reason of cure, waiver, modification, amendment or otherwise, no longer be continuing, (ii) no other Event of Default shall have occurred and be continuing, (iii) an assignment or other transfer to the Collateral Agent of any rights, title and interests in and to any Intellectual Property of such Grantor shall have been previously made and shall have become absolute and effective, and (iv) the Secured Obligations shall not have become immediately due and payable, upon the written request of any Grantor, the Collateral Agent shall promptly execute and deliver to such Grantor, at such Grantor’s sole cost and expense, such assignments or other transfer prepared by such Grantor as may be necessary to reassign to such Grantor any such rights, title and interests as may have been assigned to the Collateral Agent as aforesaid, subject to any disposition thereof that may have been made by the Collateral Agent; provided, after giving effect to such reassignment, the Collateral Agent’s security interest granted pursuant hereto, as well as all other rights and remedies of the Collateral Agent granted hereunder, shall continue to be in full force and effect; and provided further, the rights, title and interests so reassigned shall be free and clear of any other Liens granted by or on behalf of the Collateral Agent and the Secured Parties.

9.7 Cash Proceeds; Deposit Account and Controlled Accounts.

(a) Subject to the provisions of this Agreement and the Indenture: (a) If any Event of Default shall have occurred and be continuing, in addition to the rights of the Collateral Agent specified in Section 6.5 with respect to payments of Receivables, all proceeds of any Collateral received by any Grantor consisting of cash, checks and other near-cash items (collectively, “Cash Proceeds”) shall be held by such Grantor in trust for the Collateral Agent, segregated from other funds of such Grantor, and shall, forthwith upon receipt by such Grantor, be turned over to the Collateral Agent in the exact form received by such Grantor (duly indorsed by such Grantor to the Collateral Agent, if required) and held by the Collateral Agent in an account set up for that purpose. If any Event of Default should have occurred and be continuing, any Cash Proceeds received by the Collateral Agent (whether from a Grantor or otherwise) may, in the sole discretion of the Collateral Agent, be applied by the Collateral Agent (after payment of costs and expenses incurred by the Collateral Agent in the collection of such Cash Proceeds) against the Secured Obligations then due and owing in accordance with Section 6.10 of the Indenture.

(b) If any Event of Default shall have occurred and be continuing, the Collateral Agent may, in the sole discretion of the Collateral Agent, apply (after payment of costs and expenses incurred by the Collateral Agent in the collection of such Cash Proceeds) the balance from any Deposit Account or Investment Account against the Secured Obligations then due and owing in accordance with Section 6.10 of the Indenture.

(c) Following the application of any proceeds held by the Collateral Agent in accordance with this Section 9.7 and the termination, cure or waiver of all existing Events of Default in accordance with the terms of the Collateral Documents, any excess proceeds then held by the Collateral Agent in accordance with this Section 9.7 shall, at the request of the Company, be returned to the applicable Deposit Account.

SECTION 10. COLLATERAL AGENT.

The Collateral Agent has been appointed to act as Collateral Agent hereunder by the Securityholders. The Collateral Agent shall be obligated, and shall have the right hereunder, to make demands, to give notices, to exercise or refrain from exercising any rights, and to take or refrain from taking any action (including, without limitation, the release or substitution of Collateral), solely in accordance with this Agreement and the Indenture. In furtherance of the foregoing provisions of this Section 10, each Securityholder, by its acceptance of the benefits hereof, agrees that it shall have no right individually to realize upon any of the Collateral hereunder, it being understood and agreed by such

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Secured Party that all rights and remedies hereunder may be exercised solely by the Collateral Agent for the benefit of Secured Parties in accordance with the terms of this Section. The provisions of the Indenture relating to the Collateral Agent including, without limitation, the provisions relating to resignation or removal of the Collateral Agent and the powers and duties and immunities of the Collateral Agent are incorporated herein by this reference and shall survive any termination of the Indenture.

SECTION 11. CONTINUING SECURITY INTEREST; TRANSFER OF NOTES.

This Agreement shall create a continuing security interest in the Collateral and shall remain in full force and effect until the payment in full of all Secured Obligations (other than contingent obligations not yet due and payable), be binding upon each Grantor, its successors and assigns, and inure, together with the rights and remedies of the Collateral Agent hereunder, to the benefit of the Collateral Agent and its successors, transferees and assigns. Without limiting the generality of the foregoing, but subject to the terms of the Indenture, any Securityholder may assign or otherwise transfer any Notes held by it to any other Person, and such other Person shall thereupon become vested with all the benefits in respect thereof granted to Securityholders herein or otherwise. Upon the payment in full of all Secured Obligations (other than contingent obligations not yet due and payable), the security interest granted hereby shall automatically terminate hereunder and of record and all rights to the Collateral shall revert to the Grantors. Upon any such termination the Collateral Agent shall, at the Grantors’ expense, execute and deliver to the Grantors or otherwise authorize the filing of such documents as the Grantors shall reasonably request, including financing statement amendments to evidence such termination. Upon any disposition of property permitted by the Indenture, the Liens granted herein and/or under the other Collateral Documents shall be deemed to be automatically released and such property shall automatically revert to the applicable Grantor with no further action on the part of any Person. The Collateral Agent shall, at the applicable Grantor’s expense, execute and deliver or otherwise authorize the filing of such documents as such Grantor shall reasonably request, in form and substance reasonably satisfactory to the Collateral Agent, including financing statement amendments to evidence such release.

SECTION 12. [RESERVED].

SECTION 13. MISCELLANEOUS.

Any notice required or permitted to be given under this Agreement shall be given in accordance with Section 12.02 of the Indenture. No failure or delay on the part of the Collateral Agent in the exercise of any power, right or privilege hereunder or under the Indenture shall impair such power, right or privilege or be construed to be a waiver of any default or acquiescence therein, nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercise thereof or of any other power, right or privilege. All rights and remedies existing under this Agreement and the other Collateral Documents are cumulative to, and not exclusive of, any rights or remedies otherwise available. In case any provision in or obligation under this Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or Obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby. All covenants hereunder shall be given independent effect so that if a particular action or condition is not permitted by any of such covenants, the fact that it would be permitted by an exception to, or would otherwise be within the limitations of, another covenant shall not avoid the occurrence of a Default or an Event of Default if such action is taken or condition exists. This Agreement shall be binding upon and inure to the benefit of the Collateral Agent and the Grantors and their respective successors and permitted assigns. No Grantor shall assign any right, duty or obligation hereunder except as permitted by the Indenture. This Agreement, the Indenture, the Securities and the other Collateral Documents embody the entire agreement and understanding between the Grantors and the Collateral Agent and supersede all prior agreements and understandings between such parties relating to the subject

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matter hereof and thereof. Accordingly, the Collateral Documents may not be contradicted by evidence of prior, contemporaneous or subsequent oral agreements of the parties. There are no unwritten oral agreements between the parties. This Agreement may be executed in one or more counterparts (including by telecopy or electronic transmission, including by .pdf or similar file) and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument; signature pages may be detached from multiple separate counterparts and attached to a single counterpart so that all signature pages are physically attached to the same document.

SECTION 14. CONFLICTS.

In the event of any conflict or inconsistency between the provisions of this Agreement and the Indenture, the provisions of the Indenture shall govern.

[Remainder of page intentionally left blank]

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

K-V Pharmaceutical Company, as a Grantor
By:	/s/ Gregory J. Divis
	Name:	Gregory J. Divis
	Title:	President and CEO

Zeratech Technologies USA, Inc., as a Grantor
DrugTech Corporation, as a Grantor
FP1096, Inc., as a Grantor
Nesher Pharmaceuticals Inc., as a Grantor
Nesher Solutions USA, Inc., as a Grantor
Nesher Discovery Solutions, Inc., as a Grantor
Ther-Rx Corporation, as a Grantor
By:	/s/ Gregory J. Divis
	Name:	Gregory J. Divis
	Title:	President

[Signature Page to Pledge and Security Agreement]

WILMINGTON TRUST FSB,
as Collateral Agent
By:	/s/ Jane Schweiger
	Authorized Signatory

[Signature Page to Pledge and Security Agreement]