Exhibit 10.1





Exhibit 10.1




EXECUTION VERSION





AMENDMENT AND RESTATEMENT AGREEMENT dated as of October 28, 2011
(this “Amendment Agreement”), to the Credit Agreement dated as of
March 18, 2011 (the “Existing Credit Agreement”), among
AMERISOURCEBERGEN CORPORATION, a Delaware corporation (the
“Company”); the BORROWING SUBSIDIARIES party thereto; the LENDERS
party thereto; and JPMORGAN CHASE BANK, N.A., as Administrative Agent.



WHEREAS, the Company has requested that the Existing Credit Agreement be amended (a) to modify
the Maturity Date as set forth herein, (b) to modify the Applicable Rate as set forth herein and
(c) to modify certain other provisions of the Existing Credit Agreement as set forth herein and in
the Restated Credit Agreement (as defined below); and



WHEREAS, the Administrative Agent, the Issuing Banks, the Swingline Lender and each Person
executing this Amendment Agreement as a Lender (such Persons being all the Persons that will be
Lenders under the Restated Credit Agreement on the Restatement Effective Date (as defined below)
after giving effect to the amendment and restatement of the Existing Credit Agreement hereunder)
are willing to amend the Existing Credit Agreement on the terms set forth herein and in the
Restated Credit Agreement.



NOW, THEREFORE, in consideration of the premises and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:



SECTION 1. Defined Terms. Capitalized terms used and not otherwise defined herein
(including in the preliminary statements hereto) have the meanings assigned to them in the
Restated Credit Agreement for all purposes of this Amendment Agreement.



SECTION 2. Amendment and Restatement. (a) Effective as of the Restatement
Effective Date, (i) the Existing Credit Agreement is hereby amended and restated to be in the form
of Exhibit A hereto (the Existing Credit Agreement as so amended and restated being referred to as
the “Restated Credit Agreement”), (ii) Schedule 2.01 attached hereto is hereby
incorporated into the Restated Credit Agreement and (iii) Schedule 2.05 attached hereto is hereby
incorporated into the Restated Credit Agreement. Except as expressly set forth herein, all
Schedules and Exhibits referred to in the Restated Credit Agreement shall be deemed to refer to
the corresponding Schedules and Exhibits to the Existing Credit Agreement.



(b) Each Person whose name appears on Schedule 2.01 hereto acknowledges and agrees that, on
and as of the Restatement Effective Date, such Person shall be a Lender under the Restated Credit
Agreement and shall have a Tranche One Commitment and/or a Tranche Two Commitment as set forth next
to the name of such Person on Schedule 2.01 hereto. Each party hereto acknowledges and agrees
that, on and as of the Restatement Amendment Effective Date, Schedule 2.01 hereto sets forth all the
Commitments of all the Lenders (and no Person whose name does not appear on Schedule 2.01 hereto
shall have, or shall be deemed to have, as of the Restatement Effective Date, a Commitment under
the Restated Credit Agreement, it being understood and agreed that each such Person, if a Lender
under the Existing Credit Agreement, shall continue to be entitled to the benefits of Sections
2.15, 2.16, 2.17, 2.20 and 11.03 of the Existing Credit Agreement).


 


 









 





(c) Each Person whose name appears on Schedule 2.05 hereto acknowledges and agrees that, on
and as of the Restatement Effective Date, such Person shall be an Issuing Bank under the Restated
Credit Agreement and shall have an LC Commitment as set forth next to the name of such Person on
Schedule 2.05 hereto.



(d) On the Restatement Effective Date, the Tranche One Percentage and the Tranche Two
Percentage shall automatically be redetermined based on the Tranche One Commitments and the Tranche
Two Commitments set forth on Schedule 2.01 hereto, and each Lender shall have a Tranche One
Percentage and/or a Tranche Two Percentage as so redetermined for all purposes of the Restated
Credit Agreement (including Sections 2.04(c), 2.05(d) and 2.05(e) thereof). Without limiting the
foregoing, each Lender acknowledges and agrees that, on the Restatement Effective Date and without
any further action on the part of the applicable Issuing Bank or the Lenders, each Issuing Bank
shall have granted to such Lender, and such Lender shall have acquired from such Issuing Bank, a
participation in each Letter of Credit issued by such Issuing Bank and outstanding on the
Restatement Effective Date equal to such Lender’s Tranche One Percentage or Tranche Two Percentage,
as applicable, from time to time of the aggregate amount available to be drawn under such Letter of
Credit.



(e) The parties hereto acknowledge that certain Canadian Prime Rate Borrowings are
outstanding under the Existing Credit Agreement. On the Restatement Effective Date, (i) the
aggregate principal amount of all the Canadian Prime Rate Borrowings outstanding under the Existing
Credit Agreement immediately prior to the effectiveness of this Amendment Agreement (the
“Existing Canadian Prime Rate Borrowings”) shall be deemed to be paid, (ii) each Tranche
One Lender that was also a Tranche One Lender under the Existing Credit Agreement shall pay to the
Administrative Agent in same day funds (in Canadian Dollars) an amount equal to the result, if
positive, of (A) the product of (1) such Lender’s Tranche One Percentage (calculated under the
Restated Credit Agreement immediately after the effectiveness of this Amendment Agreement)
multiplied by (2) the amount of each Resulting Canadian Prime Rate Borrowing (as hereinafter
defined) minus (B) the product of (1) such Lender’s Tranche One Percentage (calculated under the
Existing Credit Agreement immediately prior to the effectiveness of this Amendment Agreement)
multiplied by (2) the amount of each Existing Canadian Prime Rate Borrowing, (iii) each Tranche One
Lender that was not a Tranche One Lender under the Existing Credit Agreement shall pay to
Administrative Agent in same day funds (in Canadian Dollars) an amount equal to the product of (1)
such Lender’s Tranche One Percentage (calculated under the Restated Credit Agreement immediately
after the effectiveness of this Amendment


 


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Agreement) multiplied by (2) the amount of each Resulting Canadian Prime Rate Borrowing, (iv)
after the Administrative Agent receives the funds specified in clauses (ii) and (iii) above, the
Administrative Agent shall pay to each Tranche One Lender (in Canadian Dollars) the portion of such
funds that is equal to the result, if positive, of (A) the product of (1) such Lender’s Tranche One
Percentage (calculated under the Existing Credit Agreement immediately prior to the effectiveness
of this Amendment Agreement) multiplied by (2) the amount of each Existing Canadian Prime Rate
Borrowing minus (B) the product of (1) such Lender’s Tranche One (calculated under the Restated
Credit Agreement immediately after the effectiveness of this Amendment Agreement) Percentage
multiplied by (2) the amount of each Resulting Canadian Prime Rate Borrowing, (v) on the
Restatement Effective Date, each Borrower that shall have been a Borrower in respect of any
Existing Canadian Prime Rate Borrower shall be deemed to have made, with respect to each Existing
Canadian Prime Rate Borrowing, a new Canadian Prime Rate Borrowing (each, a “Resulting Canadian
Prime Rate Borrowing”) in an amount equal to the amount of such Existing Canadian Prime Rate
Borrowing and (vi) each Tranche One Lender shall be deemed to hold such portion of each Resulting
Canadian Prime Rate Borrowing as equals its Tranche One Percentage (calculated under the Restated
Credit Agreement immediately after the effectiveness of this Amendment Agreement) thereof.



(f) The parties hereto acknowledge that certain B/As are outstanding under the Existing
Credit Agreement. On the Restatement Effective Date, such outstanding B/As will continue
outstanding under the Restated Credit Agreement for the duration of the applicable Contract Periods
(and will be included in the Tranche One Revolving Credit Exposure of the Tranche One Lenders that
accepted and purchased such B/As), and the applicable Borrowers’ reimbursement obligations under
Section 2.06(i) will continue to be owed to the Tranche One Lenders that accepted and purchased
such B/As.



SECTION 3. Representations and Warranties. The Company represents and warrants, and
each Loan Party represents and warrants as to itself and its subsidiaries, to the other parties
hereto that:




(a) the execution, delivery and performance of this Amendment Agreement are within
each Loan Party’s corporate, partnership or other applicable powers and have been duly
authorized by all necessary corporate, partnership and, if required, stockholder or other
equityholder action;




(b) this Amendment Agreement has been duly executed and delivered by each Loan Party
and constitutes a legal, valid and binding obligation of such Loan Party, enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other laws affecting creditors’ rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding in equity or at law;


 


3









 






(c) no Default has occurred and is continuing; and




(d) the representations and warranties contained in the Restated Credit Agreement and
the other Loan Documents are true and correct in all material respects on and as of the
date hereof, except to the extent such representations and warranties specifically relate
to an earlier date, in which case such representations and warranties are true and correct
in all material respects on and as of such earlier date.



SECTION 4. Effectiveness of this Amendment. This Amendment Agreement and the
Restated Credit Agreement shall become effective as of the date (the “Restatement Effective
Date”) on which each of the following shall have been satisfied or waived:




(a) the Administrative Agent shall have received from the Company and each other Loan
Party, each Issuing Bank, the Swingline Lender and each Person whose name appears on
Schedule 2.01 hereto, (i) a counterpart of this Amendment Agreement signed on behalf of
such party or (ii) written evidence reasonably satisfactory to the Administrative Agent
(which may include facsimile or other electronic imaging means of a signed signature page
of this Agreement) that such party has signed a counterpart of this Amendment Agreement;




(b) the Administrative Agent shall have received a favorable written opinion
(addressed to the Administrative Agent, the Issuing Banks, the Swingline Lender and the
Post-Effectiveness Lenders and dated the Restatement Effective Date) of (i) Morgan, Lewis &
Bockius LLP, counsel for the Borrowers and (ii) John G. Chou, General Counsel of the
Company, in each case, in form and substance reasonably satisfactory to the Administrative
Agent;




(c) the Administrative Agent shall have received such documents and certificates as
the Administrative Agent or its counsel may reasonably request relating to the
organization, existence and good standing of each Borrower, the authorization of the
transactions contemplated hereby and any other legal matters relating to the Borrowers, the
Loan Documents or such transactions, all in form and substance reasonably satisfactory to
the Administrative Agent;




(d) the Administrative Agent shall have received a certificate, dated the Restatement
Effective Date and signed by the President and Chief Executive Officer, a Vice President or
a Financial Officer of the Company, confirming (i) the accuracy of the representations and
warranties set forth in Section 3 hereof and (ii) confirming the satisfaction of the
condition set forth in clause (e) below;




(e) the Guarantee Requirement shall be satisfied;




(f) the Administrative Agent and each Lender shall have received all documentation
and other information requested by it for purposes of ensuring compliance with applicable
“know your customer” and anti-money laundering rules and regulations, including the USA
PATRIOT Act, the Criminal Code
(Canada), the Proceeds of Crime (Money Laundering) and Terrorist Financing Act
(Canada) and the Anti-terrorism Act (Canada), not fewer than five Business Days prior to
the Restatement Effective Date;


 


4









 






(g) the Borrowers shall have paid, or substantially concurrently with the
satisfaction of the other conditions precedent set forth in this Section shall, pay (i) all
accrued but unpaid fees referred to in Section 2.12(a) and 2.12(b)(i) under the Existing
Credit Agreement, as well as all other amounts owing to, or accrued for account under the
Existing Credit Agreement for the account of, any Lender under the Existing Credit
Agreement whose name is not set forth on Schedule 2.01 hereto and (ii) all accrued but
unpaid interest on the Existing Canadian Prime Rate Borrowings; and




(h) the Administrative Agent shall have received all fees and other amounts due and
payable on or prior to the Restatement Effective Date, including, to the extent invoiced,
reimbursement or payment of all out-of-pocket expenses (including fees, charges and
disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or
under any other Loan Document.



The Administrative Agent shall notify the Company and the Lenders of the Restatement Effective
Date, and such notice shall be conclusive and binding.



SECTION 5. Effect of Amendment. Except as expressly set forth herein, this
Amendment Agreement shall not by implication or otherwise limit, impair, constitute a waiver of or
otherwise affect the rights and remedies of the Administrative Agent, any Issuing Bank, the
Swingline Lender or any Lender under the Existing Credit Agreement or any other Loan Document, and
shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations,
covenants or agreements contained in the Existing Credit Agreement or any other Loan Document, all
of which, as amended, supplemented or otherwise modified hereby, are ratified and affirmed in all
respects and shall continue in full force and effect (it being understood and agreed that all
interest and fees accruing under the Existing Credit Agreement in respect of periods prior to the
Restatement Effective Date will accrue at the rates specified in the Existing Credit Agreement
prior to it being amended by this Amendment Agreement and, subject to Section 4(g) hereof, be
payable at the times provided in the Existing Credit Agreement). Nothing herein shall be deemed
to entitle any Loan Party to a consent to, or a waiver, amendment, modification or other change
of, any of the terms, conditions, obligations, covenants or agreements contained in the Existing
Credit Agreement, the Restated Credit Agreement or any other Loan Document in similar or different
circumstances. This Amendment Agreement shall constitute a Loan Document for all purposes of the
Restated Credit Agreement. On and after the Restatement Effective Date, any reference to the
Existing Credit Agreement in any Loan Document shall be deemed to be a reference to the Restated
Credit Agreement.


 


5









 





SECTION 6. Consent and Reaffirmation. Each Guarantor hereby consents to this
Amendment Agreement and the Restated Credit Agreement and the
transactions contemplated hereby and thereby, and each Loan Party hereby (a) agrees that,
notwithstanding the effectiveness of this Amendment Agreement and the Restated Credit Agreement,
the Guarantee Agreement and each of the other Loan Documents (as amended hereby) continue to be in
full force and effect and are not impaired or adversely affected in any manner whatsoever, (b)
confirms its guarantee of the Obligations (as amended hereby), all as provided in the Loan
Documents as originally executed, and (c) acknowledges that such guarantee continues in full force
and effect in respect of the Obligations under the Restated Credit Agreement and the other Loan
Documents, including the Commitments.



SECTION 7. Notices. All notices hereunder shall be given in accordance with the
provisions of Section 11.01 of the Restated Credit Agreement and Section 12 of the Guarantee
Agreement, as applicable.



SECTION 8. Counterparts; Effectiveness. This Amendment Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a single contract.
Except as provided in Section 4 hereof, this Amendment Agreement shall become effective when it
shall have been executed by the Administrative Agent and when the Administrative Agent shall have
received counterparts hereof which, when taken together, bear the signatures of each of the other
parties hereto, and thereafter shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns. Delivery of an executed counterpart of a
signature page of this Amendment Agreement by facsimile or other electronic imaging means shall be
effective as delivery of a manually executed counterpart of this Amendment Agreement.



SECTION 9. Governing Law. This Amendment Agreement shall be construed in accordance
with and governed by the law of the State of New York.



SECTION 10. Incorporation of Reference. Sections 11.07, 11.09(b), 11.09(c),
11.09(d), 11.09(e), 11.10 and 11.11 of the Restated Credit Agreement are herby incorporated by
reference herein, mutatis mutandis.



[signature pages follow]



 


6









 







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



	 	 	 
	 

	 	AMERISOURCEBERGEN CORPORATION,
	 

	 	AMERISOURCEBERGEN CANADA CORPORATION,
	 

	 	AMERISOURCEBERGEN SPECIALTY GROUP CANADA CORPORATION,
	 

	 	BRECON HOLDINGS LIMITED,
	 

	 	BRECON PHARMACEUTICALS LIMITED,
	 

	 	INNOMAR STRATEGIES INC.,






	 	 	 	 	 
	 	 	 
	 	By:  	                            /s/ J. F. Quinn
 	 
	 	 	Name:  	J. F. Quinn 	 
	 	 	Title:  	Vice President & Corporate Treasurer
for each of the foregoing parties 	 


 


 









 





	 	 	 	 	 



	 	 	 
	 

	 	AMBULATORY PHARMACEUTICAL SERVICES, INC.,
	 

	 	AMERISOURCEBERGEN CONSULTING SERVICES, INC.,
	 

	 	AMERISOURCEBERGEN DRUG CORPORATION,
	 

	 	AMERISOURCEBERGEN HOLDING CORPORATION,
	 

	 	AMERISOURCEBERGEN SERVICES CORPORATION,
	 

	 	AMERISOURCEBERGEN SPECIALTY GROUP, INC.,
	 

	 	AMERISOURCE HEALTH SERVICES CORPORATION,
	 

	 	AMERISOURCE HERITAGE CORPORATION,
	 

	 	ANDERSON PACKAGING, INC.,
	 

	 	APS ENTERPRISES HOLDING COMPANY, INC.,
	 

	 	ASD SPECIALTY HEALTHCARE, INC.,
	 

	 	AUTOMED TECHNOLOGIES, INC.,
	 

	 	BELLCO DRUG CORP.,
	 

	 	CLINICAL OUTCOMES RESOURCE APPLICATION CORPORATION,
	 

	 	DIALYSIS PURCHASING ALLIANCE, INC.,
	 

	 	HEALTH SERVICES CAPITAL CORPORATION,
	 

	 	I.G.G. OF AMERICA, INC.,
	 

	 	IHS ACQUISITION XXX, INC.,
	 

	 	IMEDEX, LLC,
	 

	 	INTEGRATED COMMERCIALIZATION SOLUTIONS, INC.,
	 

	 	INTERNATIONAL ONCOLOGY NETWORKS SOLUTIONS, INC.,
	 

	 	INTERNATIONAL PHYSICIAN NETWORKS, L.L.C.
	 

	 	INTRINSIQ, LLC
	 

	 	INTRINSIQ HOLDINGS, INC
	 

	 	LIBERTY ACQUISITION CORP.,
	 

	 	MEDICAL INITIATIVES, INC.,
	 

	 	PHARM PLUS ACQUISITION, INC.,
	 

	 	PHARMACY HEALTHCARE SOLUTIONS, LTD.,
	 

	 	PREMIER SOURCE, LLC
	 

	 	PREMIER SOURCE DIAGNOSTICS INC,
	 

	 	SOLANA BEACH, INC.,
	 

	 	SPECIALTY PHARMACY, INC.,
	 

	 	SPECIALTY PHARMACY OF CALIFORNIA, INC.,
	 

	 	TELEPHARMACY SOLUTIONS, INC.,
	 

	 	THE LASH GROUP, INC.,
	 

	 	US BIOSERVICES CORPORATION,
	 

	 	VALUE APOTHECARIES, INC.,
	 

	 	XCENDA, LLC






	 	 	 	 	 
	 	 	 
	 	By:  	                        /s/  John G. Chou
 	 
	 	 	Name:  	John G. Chou 	 
	 	 	Title:  	Senior Vice President, General Counsel

and Secretary for each of the foregoing parties 	 


 


 









 





	 	 	 	 	 



	 	 	 
	 

	 	AMERISOURCE HERITAGE CORPORATION,






	 	 	 	 	 
	 	 	 
	 	By:  	                        /s/ Donald R. McLamb, Jr.
 	 
	 	 	Name:  	Donald R. McLamb, Jr. 	 
	 	 	Title:  	President 	 
	 



	 	 	 
	 

	 	PHARMACY HEALTHCARE SOLUTIONS, LTD.,
	 
	 	 
	 

	 	by VALUE APOTHECARIES, INC.,
	 
	 	 
	 

	 	as General Partner






	 	 	 	 	 
	 	 	 
	 	By:  	                   /s/ John G. Chou
 	 
	 	 	Name:  	John G. Chou 	 
	 	 	Title:  	Senior Vice President, General Counsel and
Secretary 	 


 


 









 





	 	 	 	 	 



	 	 	 
	 

	 	JPMORGAN CHASE BANK, N.A.,
	 

	 	individually and as Issuing Bank, Swingline 
	 

	 	Lender and Administrative Agent,






	 	 	 	 	 
	 	 	 
	 	By:  	            /s/ Vanessa Chiu
 	 
	 	 	Name:  	Vanessa Chiu 	 
	 	 	Title:  	Executive Director 	 


 


 









 





	 	 	 	 	 



LENDER SIGNATURE PAGE TO

AMERISOURCEBERGEN CORPORATION

AMENDMENT AND RESTATEMENT AGREEMENT RELATING TO

THE CREDIT AGREEMENT DATED AS OF MARCH 18, 2011






Name of Lender (including, if such Lender is an Issuing Bank, in its capacity as an
Issuing Bank):



	 	 	 	 	 
	 	By BANK OF AMERICA, N.A.

 	 
	 	/s/ Zubin R. Shoff
 	 
	 	Name:  	Zubin R. Shroff 	 
	 	Title:  	Director 	 


 


 









 





	 	 	 	 	 



LENDER SIGNATURE PAGE TO

AMERISOURCEBERGEN CORPORATION

AMENDMENT AND RESTATEMENT AGREEMENT RELATING TO

THE CREDIT AGREEMENT DATED AS OF MARCH 18, 2011






Name of Lender (including, if such Lender is an Issuing Bank, in its capacity as an
Issuing Bank):



	 	 	 	 	 
	 	BANK OF AMERICA, N.A. CANADA BRANCH

 	 
	 	By  	/s/ Medina Sales de Andrade
 	 
	 	 	Name:  	Medina Sales de Andrade 	 
	 	 	Title:  	Vice President 	 


 


 









 





	 	 	 	 	 



LENDER SIGNATURE PAGE TO

AMERISOURCEBERGEN CORPORATION

AMENDMENT AND RESTATEMENT AGREEMENT RELATING TO

THE CREDIT AGREEMENT DATED AS OF MARCH 18, 2011






Name of Lender (including, if such Lender is an Issuing Bank, in its capacity as an
Issuing Bank):



	 	 	 	 	 
	 	CITIBANK, N.A.

 	 
	 	By  	/s/ Michelle Nadine Burnett
 	 
	 	 	Name:  	Michelle Nadine Burnett 	 
	 	 	Title:  	Vice President 	 


 


 









 





	 	 	 	 	 



LENDER SIGNATURE PAGE TO

AMERISOURCEBERGEN CORPORATION

AMENDMENT AND RESTATEMENT AGREEMENT RELATING TO

THE CREDIT AGREEMENT DATED AS OF MARCH 18, 2011






Name of Lender (including, if such Lender is an Issuing Bank, in its capacity as an
Issuing Bank):



	 	 	 	 	 
	 	CITIBANK, N.A., CANADIAN BRANCH

 	 
	 	By  	/s/ Niyousha Zarinpour
 	 
	 	 	Name:  	Niyousha Zarinpour 	 
	 	 	Title:  	Authorized Signer 	 


 


 









 





	 	 	 	 	 



LENDER SIGNATURE PAGE TO

AMERISOURCEBERGEN CORPORATION

AMENDMENT AND RESTATEMENT AGREEMENT RELATING TO

THE CREDIT AGREEMENT DATED AS OF MARCH 18, 2011






Name of Lender (including, if such Lender is an Issuing Bank, in its capacity as an
Issuing Bank):



	 	 	 	 	 
	 	CREDIT SUISSE AG CAYMAN ISLANDS
BRANCH

 	 
	 	By  	/s/ Christopher Reo Day
 	 
	 	 	Name:  	Christopher Reo Day 	 
	 	 	Title:  	Vice President 	 
	 




	 	 	For any institution requiring a second signature block:






	 	 	 	 	 
	 	 	 
	 	By  	      /s/ Michael D. Spaight
 	 
	 	 	Name:  	Michael D. Spaight 	 
	 	 	Title:  	Associate 	 


 


 









 





	 	 	 	 	 



LENDER SIGNATURE PAGE TO

AMERISOURCEBERGEN CORPORATION

AMENDMENT AND RESTATEMENT AGREEMENT RELATING TO

THE CREDIT AGREEMENT DATED AS OF MARCH 18, 2011






Name of Lender (including, if such Lender is an Issuing Bank, in its capacity as an
Issuing Bank):



	 	 	 	 	 
	 	DEUTSCHE BANK AG NEW YORK BRANCH

 	 
	 	By  	/s/ Heidi Sandquist
 	 
	 	 	Name:  	Heidi Sandquist 	 
	 	 	Title:  	Director 	 
	 





For any institution requiring a second signature block:



	 	 	 	 	 
	 	 	 
	 	By  	     /s/ Ming K. Chu
 	 
	 	 	Name:  	Ming K. Chu 	 
	 	 	Title:  	Vice President 	 


 


 









 





	 	 	 	 	 



LENDER SIGNATURE PAGE TO

AMERISOURCEBERGEN CORPORATION

AMENDMENT AND RESTATEMENT AGREEMENT RELATING TO

THE CREDIT AGREEMENT DATED AS OF MARCH 18, 2011






Name of Lender (including, if such Lender is an Issuing Bank, in its capacity as an
Issuing Bank):



	 	 	 	 	 
	 	GOLDMAN SACHS BANK USA

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


 


 









 





	 	 	 	 	 



LENDER SIGNATURE PAGE TO

AMERISOURCEBERGEN CORPORATION

AMENDMENT AND RESTATEMENT AGREEMENT RELATING TO

THE CREDIT AGREEMENT DATED AS OF MARCH 18, 2011






Name of Lender (including, if such Lender is an Issuing Bank, in its capacity as an
Issuing Bank):



	 	 	 	 	 
	 	KEYBANK NATIONAL ASSOCIATION

 	 
	 	By  	/s/ Sukanya V. Raj
 	 
	 	 	Name:  	Sukanya V. Raj 	 
	 	 	Title:  	Vice President & Portfolio
Manager 	 


 


 









 





	 	 	 	 	 



LENDER SIGNATURE PAGE TO

AMERISOURCEBERGEN CORPORATION

AMENDMENT AND RESTATEMENT AGREEMENT RELATING TO

THE CREDIT AGREEMENT DATED AS OF MARCH 18, 2011






Name of Lender (including, if such Lender is an Issuing Bank, in its capacity as an
Issuing Bank):



	 	 	 	 	 
	 	MIZUHO CORPORATE BANK, LTD.

 	 
	 	By  	/s/ Bertram H. Tang
 	 
	 	 	Name:  	Bertram H. Tang 	 
	 	 	Title:  	Authorized Signatory 	 


 


 









 





	 	 	 	 	 



LENDER SIGNATURE PAGE TO

AMERISOURCEBERGEN CORPORATION

AMENDMENT AND RESTATEMENT AGREEMENT RELATING TO

THE CREDIT AGREEMENT DATED AS OF MARCH 18, 2011






Name of Lender (including, if such Lender is an Issuing Bank, in its capacity as an
Issuing Bank):



	 	 	 	 	 
	 	THE BANK OF NEW YORK MELLON

 	 
	 	By  	/s/ Clifford A. Mull
 	 
	 	 	Name:  	Clifford A. Mull 	 
	 	 	Title:  	First Vice President 	 


 


 









 





	 	 	 	 	 



LENDER SIGNATURE PAGE TO

AMERISOURCEBERGEN CORPORATION

AMENDMENT AND RESTATEMENT AGREEMENT RELATING TO

THE CREDIT AGREEMENT DATED AS OF MARCH 18, 2011






Name of Lender (including, if such Lender is an Issuing Bank, in its capacity as an
Issuing Bank):



	 	 	 	 	 
	 	THE BANK OF NOVA SCOTIA

 	 
	 	By  	/s/ Justin Perdue
 	 
	 	 	Name:  	Justin Perdue 	 
	 	 	Title:  	Director 	 


 


 









 





	 	 	 	 	 



LENDER SIGNATURE PAGE TO

AMERISOURCEBERGEN CORPORATION

AMENDMENT AND RESTATEMENT AGREEMENT RELATING TO

THE CREDIT AGREEMENT DATED AS OF MARCH 18, 2011






Name of Lender (including, if such Lender is an Issuing Bank, in its capacity as an
Issuing Bank):



	 	 	 	 	 
	 	PNC BANK, NATIONAL ASSOCIATION

 	 
	 	By  	/s/ Denise DiSimone Killen
 	 
	 	 	Name:  	Denise DiSimone Killen 	 
	 	 	Title:  	Senior Vice President 	 


 


 









 





	 	 	 	 	 



LENDER SIGNATURE PAGE TO

AMERISOURCEBERGEN CORPORATION

AMENDMENT AND RESTATEMENT AGREEMENT RELATING TO

THE CREDIT AGREEMENT DATED AS OF MARCH 18, 2011






Name of Lender (including, if such Lender is an Issuing Bank, in its capacity as an
Issuing Bank):



	 	 	 	 	 
	 	PNC BANK CANADA BRANCH

 	 
	 	By  	/s/
Caroline Stade
 	 
	 	 	Name:  	Caroline Stade 	 
	 	 	Title:  	SVP 	 
	 
	 	 	 
	 	By  	      /s/ Bill Hines
 	 
	 	 	Name:  	Bill Hines 	 
	 	 	Title:  	Senior Vice President & Principal Officer 	 


 


 









 





	 	 	 	 	 



LENDER SIGNATURE PAGE TO

AMERISOURCEBERGEN CORPORATION

AMENDMENT AND RESTATEMENT AGREEMENT RELATING TO

THE CREDIT AGREEMENT DATED AS OF MARCH 18, 2011






Name of Lender (including, if such Lender is an Issuing Bank, in its capacity as an
Issuing Bank):



	 	 	 	 	 
	 	TD BANK, N.A.

 	 
	 	By  	/s/ Todd Antico
 	 
	 	 	Name:  	Todd Antico 	 
	 	 	Title:  	Senior Vice President 	 


 


 









 





	 	 	 	 	 



LENDER SIGNATURE PAGE TO

AMERISOURCEBERGEN CORPORATION

AMENDMENT AND RESTATEMENT AGREEMENT RELATING TO

THE CREDIT AGREEMENT DATED AS OF MARCH 18, 2011






Name of Lender (including, if such Lender is an Issuing Bank, in its capacity as an
Issuing Bank):



	 	 	 	 	 
	 	THE BANK OF TOKYO-MITSUBISHI UFJ,
LTD.

 	 
	 	By  	/s/ B. McNany
 	 
	 	 	Name:  	B. McNany 	 
	 	 	Title:  	Vice President 	 


 


 









 





	 	 	 	 	 



LENDER SIGNATURE PAGE TO

AMERISOURCEBERGEN CORPORATION

AMENDMENT AND RESTATEMENT AGREEMENT RELATING TO

THE CREDIT AGREEMENT DATED AS OF MARCH 18, 2011






Name of Lender (including, if such Lender is an Issuing Bank, in its capacity as an
Issuing Bank):



	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION

 	 
	 	By  	/s/ Jennifer Hwang
 	 
	 	 	Name:  	Jennifer Hwang 	 
	 	 	Title:  	Vice President 	 


 


 









 





	 	 	 	 	 



LENDER SIGNATURE PAGE TO

AMERISOURCEBERGEN CORPORATION

AMENDMENT AND RESTATEMENT AGREEMENT RELATING TO

THE CREDIT AGREEMENT DATED AS OF MARCH 18, 2011






Name of Lender (including, if such Lender is an Issuing Bank, in its capacity as an
Issuing Bank):



	 	 	 	 	 
	 	WELLS FARGO BANK, NATIONAL ASSOCIATION

 	 
	 	By  	/s/ Andrea Chen
 	 
	 	 	Name:  	Andrea Chen 	 
	 	 	Title:  	Director 	 



	 	 	 	 	 
	 	WELLS FARGO FINANCIAL CANADA CORP

 	 
	 	By  	/s/ Paul D. Young
 	 
	 	 	Name:  	Paul D. Young 	 
	 	 	Title:  	Senior Counsel 	 




 


 











 




EXHIBIT A




CREDIT AGREEMENT




dated as of March 18, 2011,




as amended and restated as of October 28, 2011,




among




AMERISOURCEBERGEN CORPORATION,




The BORROWING SUBSIDIARIES Party Hereto,




The LENDERS Party Hereto




and




JPMORGAN CHASE BANK, N.A.,

as Administrative Agent






J.P. MORGAN SECURITIES LLC,

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED

and

WELLS FARGO SECURITIES, LLC,

as Lead Arrangers and Joint Bookrunners




BANK OF AMERICA, N.A.

and

WELLS FARGO BANK N.A.,

as Syndication Agents

and




THE BANK OF NOVA SCOTIA,

THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH

and

US BANK NATIONAL ASSOCIATION,

as Documentation Agents






 


 









 







TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE I
	 	 	 	 
	 
	 	 	 	 
	Definitions
	 	 	 	 
	 
	 	 	 	 
	SECTION 1.01. Defined Terms
	 	 	1	 
	SECTION 1.02. Classification of Loans and Borrowings
	 	 	27	 
	SECTION 1.03. Terms Generally
	 	 	28	 
	SECTION 1.04. Accounting Terms; GAAP; Pro Forma Computations
	 	 	28	 
	SECTION 1.05. Currency Translation
	 	 	29	 
	 
	 	 	 	 
	ARTICLE II
	 	 	 	 
	 
	 	 	 	 
	The Credits
	 	 	 	 
	 
	 	 	 	 
	SECTION 2.01. Commitments
	 	 	29	 
	SECTION 2.02. Loans and Borrowings
	 	 	30	 
	SECTION 2.03. Requests for Borrowings
	 	 	31	 
	SECTION 2.04. Swingline Loans
	 	 	32	 
	SECTION 2.05. Letters of Credit
	 	 	33	 
	SECTION 2.06. Canadian Bankers’ Acceptances
	 	 	38	 
	SECTION 2.07. Funding of Borrowings and B/A Drawings
	 	 	41	 
	SECTION 2.08. Interest Elections
	 	 	42	 
	SECTION 2.09. Termination, Reduction, Increase and Redesignation of Commitments
	 	 	44	 
	SECTION 2.10. Repayment of Loans and B/As; Evidence of Debt
	 	 	46	 
	SECTION 2.11. Prepayment of Loans
	 	 	46	 
	SECTION 2.12. Fees
	 	 	47	 
	SECTION 2.13. Interest
	 	 	49	 
	SECTION 2.14. Alternate Rate of Interest
	 	 	50	 
	SECTION 2.15. Increased Costs
	 	 	50	 
	SECTION 2.16. Break Funding Payments
	 	 	51	 
	SECTION 2.17. Taxes
	 	 	52	 
	SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs
	 	 	55	 
	SECTION 2.19. Mitigation Obligations; Replacement of Lenders
	 	 	56	 
	SECTION 2.20. Foreign Subsidiary Costs
	 	 	57	 
	SECTION 2.21. Designation of Borrowing Subsidiaries
	 	 	58	 
	SECTION 2.22. Defaulting Lenders
	 	 	58	 
	 
	 	 	 	 
	ARTICLE III
	 	 	 	 
	 
	 	 	 	 
	Representations and Warranties
	 	 	 	 
	 
	 	 	 	 
	SECTION 3.01. Organization; Powers
	 	 	60	 
	SECTION 3.02. Authorization; Enforceability
	 	 	60	 
	SECTION 3.03. Governmental Approvals; No Conflicts
	 	 	60	 
	SECTION 3.04. Financial Condition; No Material Adverse Change
	 	 	61	 





 


i









 





	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	SECTION 3.05. Properties
	 	 	61	 
	SECTION 3.06. Litigation and Environmental Matters
	 	 	61	 
	SECTION 3.07. Compliance with Laws and Agreements
	 	 	62	 
	SECTION 3.08. Investment Company Status
	 	 	62	 
	SECTION 3.09. Taxes
	 	 	62	 
	SECTION 3.10. ERISA
	 	 	62	 
	SECTION 3.11. Disclosure
	 	 	62	 
	SECTION 3.12. Subsidiaries
	 	 	62	 
	SECTION 3.13. Insurance
	 	 	62	 
	SECTION 3.14. Labor Matters
	 	 	63	 
	 
	 	 	 	 
	ARTICLE IV
	 	 	 	 
	 
	 	 	 	 
	Conditions
	 	 	 	 
	 
	 	 	 	 
	SECTION 4.01. Effective Date
	 	 	63	 
	SECTION 4.02. Each Credit Event
	 	 	64	 
	SECTION 4.03. Initial Credit Event for each Additional Borrowing Subsidiary
	 	 	65	 
	 
	 	 	 	 
	ARTICLE V
	 	 	 	 
	 
	 	 	 	 
	Affirmative Covenants
	 	 	 	 
	 
	 	 	 	 
	SECTION 5.01. Financial Statements and Other Information
	 	 	65	 
	SECTION 5.02. Notices of Material Events
	 	 	66	 
	SECTION 5.03. Existence; Conduct of Business
	 	 	67	 
	SECTION 5.04. Payment of Obligations
	 	 	67	 
	SECTION 5.05. Maintenance of Properties; Insurance
	 	 	67	 
	SECTION 5.06. Books and Records; Inspection and Audit Rights
	 	 	67	 
	SECTION 5.07. Compliance with Laws
	 	 	68	 
	SECTION 5.08. Use of Proceeds and Letters of Credit
	 	 	68	 
	SECTION 5.09. Additional Subsidiaries
	 	 	68	 
	SECTION 5.10. Senior Debt Status
	 	 	68	 
	 
	 	 	 	 
	ARTICLE VI
	 	 	 	 
	 
	 	 	 	 
	Negative Covenants
	 	 	 	 
	 
	 	 	 	 
	SECTION 6.01. Indebtedness
	 	 	68	 
	SECTION 6.02. Liens
	 	 	69	 
	SECTION 6.03. Fundamental Changes
	 	 	70	 
	SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions
	 	 	70	 
	SECTION 6.05. Asset Sales
	 	 	71	 
	SECTION 6.06. Hedging Agreements
	 	 	71	 
	SECTION 6.07. Restricted Payments; Certain Payments of Indebtedness
	 	 	71	 
	SECTION 6.08. Transactions with Affiliates
	 	 	72	 
	SECTION 6.09. Restrictive Agreements
	 	 	72	 
	SECTION 6.10. Material Documents
	 	 	72	 
	SECTION 6.11. Leverage Ratio
	 	 	72	 
	SECTION 6.12. Fiscal Quarters
	 	 	72	 





 


ii









 





	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE VII
	 	 	 	 
	 
	 	 	 	 
	Events of Default
	 	 	 	 
	 
	 	 	 	 
	ARTICLE VIII
	 	 	 	 
	 
	 	 	 	 
	The Administrative Agent
	 	 	 	 
	 
	 	 	 	 
	ARTICLE IX
	 	 	 	 
	 
	 	 	 	 
	Collection Allocation Mechanism
	 	 	 	 
	 
	 	 	 	 
	ARTICLE X
	 	 	 	 
	 
	 	 	 	 
	Guarantee
	 	 	 	 
	 
	 	 	 	 
	ARTICLE XI
	 	 	 	 
	 
	 	 	 	 
	Miscellaneous
	 	 	 	 
	 
	 	 	 	 
	SECTION 11.01. Notices
	 	 	80	 
	SECTION 11.02. Waivers; Amendments
	 	 	81	 
	SECTION 11.03. Expenses; Indemnity; Damage Waiver
	 	 	82	 
	SECTION 11.04. Successors and Assigns
	 	 	83	 
	SECTION 11.05. Survival
	 	 	86	 
	SECTION 11.06. Counterparts; Integration; Effectiveness
	 	 	86	 
	SECTION 11.07. Severability
	 	 	87	 
	SECTION 11.08. Right of Setoff
	 	 	87	 
	SECTION 11.09. Governing Law; Jurisdiction; Consent to Service of Process
	 	 	87	 
	SECTION 11.10. WAIVER OF JURY TRIAL
	 	 	88	 
	SECTION 11.11. Headings
	 	 	88	 
	SECTION 11.12. Confidentiality
	 	 	88	 
	SECTION 11.13. Interest Rate Limitation
	 	 	89	 
	SECTION 11.14. Releases of Guarantors
	 	 	89	 
	SECTION 11.15. USA PATRIOT Act
	 	 	89	 
	SECTION 11.16. Termination of Guarantee Agreement
	 	 	90	 
	SECTION 11.17. Non-Public Information
	 	 	90	 
	SECTION 11.18. No Fiduciary Duty
	 	 	90	 
	SECTION 11.19. Conversion of Currencies
	 	 	90	 





 


iii









 





	 	 	 
	Schedules	 	 
	 
	Schedule 2.01

	 	Commitments
	Schedule 2.02

	 	Lending Offices
	Schedule 2.05

	 	Existing Letters of Credit
	Schedule 3.12

	 	Subsidiaries
	Schedule 3.13

	 	Insurance
	Schedule 6.02

	 	Existing Liens
	Schedule 6.09

	 	Existing Restrictions






	 	 	 
	Exhibits	 	 
	 
	Exhibit A

	 	Form of Assignment and Assumption
	Exhibit B-1

	 	Form of Borrower Joinder Agreement
	Exhibit B-2

	 	Form of Borrower Termination Agreement
	Exhibit C

	 	Form of Borrowing Request
	Exhibit D

	 	Form of Guarantee Agreement
	Exhibit E

	 	Mandatory Costs Rate





 


iv









 






CREDIT AGREEMENT dated as of March 18, 2011, as amended
and restated as of October 28, 2011 (as further amended from time to time,
this “Agreement”), among AMERISOURCEBERGEN CORPORATION, a
Delaware corporation (the “Company”); the BORROWING SUBSIDIARIES
from time to time party hereto; the LENDERS from time to time party hereto
and JPMORGAN CHASE BANK, N.A., as Administrative Agent.



The Borrowers (such term and each other capitalized term used and not otherwise defined herein
having the meaning assigned to it in Article I) have requested the Lenders to extend, and the
Lenders are willing, on the terms and subject to the conditions set forth herein, to extend, credit
in the form of:



(a) Tranche One Commitments under which (i) Borrowers may obtain Revolving Loans in US
Dollars, Sterling, Euro, Designated Currencies and, in the case of Borrowers that are Canadian
Subsidiaries, Canadian Dollars, (ii) the Company and other Borrowers that are US Subsidiaries or
Canadian Subsidiaries may obtain Swingline Loans in US Dollars, (iii) Borrowers that are Canadian
Subsidiaries may obtain Swingline Loans in Canadian Dollars, (iv) Borrowers that are UK
Subsidiaries may obtain Swingline Loans in Sterling, (v) Borrowers that are not US Subsidiaries may
obtain Swingline Loans in Euro, (vi) Borrowers may obtain Letters of Credit in US Dollars,
Sterling, Euro, Designated Currencies and, in the case of Borrowers that are Canadian Subsidiaries,
Canadian Dollars and (vii) Borrowers that are Canadian Subsidiaries may issue and sell B/As.



(b) Tranche Two Commitments under which (i) Borrowers may obtain Revolving Loans in US
Dollars, Sterling, Euro, Designated Currencies and, in the case of Borrowers that are Canadian
Subsidiaries, Canadian Dollars, (ii) the Company and other Borrowers that are US Subsidiaries or
Canadian Subsidiaries may obtain Swingline Loans in US Dollars, (iii) Borrowers that are UK
Subsidiaries may obtain Swingline Loans in Sterling, (iv) Borrowers that are not US Subsidiaries
may obtain Swingline Loans in Euro and (v) Borrowers may obtain Letters of Credit in US Dollars,
Sterling, Euro and Designated Currencies.



The proceeds of Loans made and B/As accepted and purchased hereunder were or will be used (a)
on the Effective Date, to repay any loans and other amounts outstanding or payable under the
Existing Credit Agreement and (b) on and after the Effective Date, for general corporate purposes
of the Company and the Subsidiaries. Letters of Credit and Swingline Loans will be used by the
Company and the Subsidiaries for general corporate purposes.




Accordingly, the parties hereto agree as follows:



ARTICLE I




Definitions




SECTION 1.01. Defined Terms. As used in this Agreement, the following terms have the
meanings specified below:



“ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to
the Alternate Base Rate.


 


 









 






“Accession Agreement” has the meaning set forth in Section 2.09(d).



“Adjusted EURIBO Rate” means, with respect to any EURIBOR Borrowing for any Interest
Period, an interest rate per annum equal to the sum of (a) the EURIBO Rate for such Interest Period
and (b) the Mandatory Costs Rate.



“Adjusted LIBO Rate” means (a) with respect to any LIBOR Borrowing denominated in US
Dollars for any Interest Period, an interest rate per annum equal to the product of (i) the LIBO
Rate for US Dollars for such Interest Period multiplied by (ii) the Statutory Reserve Rate and (b)
with respect to any LIBOR Borrowing denominated in Sterling or any Designated Currency for any
Interest Period, an interest rate per annum equal to the sum of (i) the LIBO Rate for such currency
and such Interest Period plus (ii) the Mandatory Costs Rate.



“Administrative Agent” means JPMCB, in its capacity as administrative agent for the
Lenders hereunder, or any successor appointed in accordance with Article VIII. Unless the context
requires otherwise, the term “Administrative Agent” shall include any Affiliate of JPMCB through
which JPMCB shall perform any of its obligations in such capacity hereunder.



“Administrative Questionnaire” means an Administrative Questionnaire in a form
supplied by the Administrative Agent.




“Agreement” has the meaning set forth in the heading to this Agreement.



“Affiliate” means, with respect to a specified Person, another Person that directly,
or indirectly through one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified.



“Alternate Base Rate” means, for any day, a rate per annum equal to the greatest of
(a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such
day plus 1/2 of 1% and (c) the Adjusted LIBO Rate on such day (or if such day is not a
Business Day, the immediately preceding Business Day) for a deposit in US Dollars with a maturity
of one month plus 1%. For purposes of clause (c) above, the Adjusted LIBO Rate on any day
shall be based on the rate per annum appearing on the Reuters “LIBOR01” screen displaying British
Bankers’ Association Interest Settlement Rates (or on any successor or substitute screen provided
by Reuters, or any successor to or substitute for such service, providing rate quotations
comparable to those currently provided on such screen, as determined by the Administrative Agent
from time to time for purposes of providing quotations of interest rates applicable to US Dollar
deposits in the London interbank market) at approximately 11:00 a.m., London time, on such day for
deposits in US Dollars with a maturity of one month. Any change in the Alternate Base Rate due to
a change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted LIBO Rate shall be
effective from and including the effective date of such change in the Prime Rate, the Federal Funds
Effective Rate or the Adjusted LIBO Rate, as the case may be.



“Alternative Currency” means any currency other than US Dollars, Sterling, Euros or
Canadian Dollars.



“Amendment Agreement” means the Amendment and Restatement Agreement dated as of
October 28, 2011, among the Company, each Borrowing Subsidiary and each other Loan Party, the
Lenders, the Issuing Banks, the Swingline Lender and the Administrative Agent.


 


2









 





“Applicable Funding Account” means, as to each Borrower, the applicable account that
shall be specified in a written notice signed by a Financial Officer and delivered to and approved
by the Administrative Agent.



“Applicable Rate” means, for any day, the applicable rate per annum set forth below
under the caption “Facility Fee Rate”, “LIBOR/EURIBOR Spread and B/A Stamping Fee” and
“ABR/Canadian Prime Rate Spread”, as the case may be, based upon the ratings established by S&P,
Moody’s and Fitch for the Index Debt as of the most recent determination date:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	LIBOR/EURIBOR	 	 	ABR/Canadian	 
	 	 	 	 	 	 	 	 	Spread and B/A	 	 	Prime Rate	 
	 	 	 	 	Facility Fee Rate	 	 	Stamping Fee	 	 	Spread (basis	 
	 	 	Ratings	 	(basis points per	 	 	(basis points per	 	 	points per	 
	Category	 	(S&P/Moody’s/Fitch)	 	annum)	 	 	annum)	 	 	annum)	 
	Category 1
	 	A+/A1/A+ or higher	 	 	7.0	 	 	 	68.0	 	 	 	0.0	 
	Category 2
	 	A/A2/A	 	 	8.0	 	 	 	79.5	 	 	 	0.0	 
	Category 3
	 	A-/A3/A-	 	 	10.0	 	 	 	90.0	 	 	 	0.0	 
	Category 4
	 	BBB+/Baa1/BBB+	 	 	12.5	 	 	 	112.5	 	 	 	12.5	 
	Category 5
	 	BBB/Baa2/BBB	 	 	15.0	 	 	 	135.0	 	 	 	35.0	 
	Category 6
	 	BBB-/Baa3/BBB- or lower	 	 	20.0	 	 	 	155.0	 	 	 	55.0	 






For purposes of the foregoing, (a) if any of Moody’s, S&P or Fitch shall not have in effect a
rating for the Index Debt (other than by reason of the circumstances referred to in the last
sentence of this definition), then such rating agency shall be deemed to have established a rating
in Category 6; (b) if the ratings established or deemed to have been established by Moody’s, S&P
and Fitch for the Index Debt shall fall within different Categories, the Applicable Rate shall be
based on the Category in which two of such ratings shall fall or, if there shall be no such
Category, on the Category in which the second highest of the three ratings shall fall; and (c) if
the rating established or deemed to have been established by Moody’s, S&P or Fitch for the Index
Debt shall be changed (other than as a result of a change in the rating system of Moody’s, S&P or
Fitch), such change shall be effective as of the date on which it is first announced by the
applicable rating agency. Each change in the Applicable Rate shall apply during the period
commencing on the effective date of such change and ending on the date immediately preceding the
effective date of the next such change. If the rating system of Moody’s, S&P or Fitch shall
change, or if any such rating agency shall cease to be in the business of rating corporate debt
obligations, the Company and the Lenders shall negotiate in good faith to amend this definition to
reflect such changed rating system or the unavailability of ratings from such rating agency and,
pending the effectiveness of any such amendment, the Applicable Rate shall be determined by
reference to the ratings of the other rating agencies (or, if the circumstances referred to in this
sentence shall affect all such rating agencies, the ratings most recently in effect prior to such
changes or cessations).



“Approved Fund” means any Person (other than a natural person) that is engaged in
making, purchasing, holding or investing in bank loans and similar extensions of credit in the
ordinary course of its business and that is administered or managed by a Lender, an Affiliate of a
Lender or an entity or an Affiliate of an entity that administers or manages a Lender.



“Arrangers” means J.P. Morgan Securities LLC, Merrill Lynch, Pierce, Fenner & Smith
Incorporated and Wells Fargo Securities, LLC.


 


3









 





“Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an assignee (with the consent of any Person whose consent is required by Section 11.04),
and accepted by the Administrative Agent, in the form of Exhibit A or any other form approved by
the Administrative Agent.



“Availability Period” means the period from and including the Effective Date to but
excluding the earlier of the Maturity Date and the date of termination of the Commitments.



“B/A” means a bill of exchange, including a depository bill issued in accordance with
the Depository Bills and Notes Act (Canada), denominated in Canadian Dollars, drawn by a Canadian
Borrowing Subsidiary and accepted by a Tranche One Lender in accordance with the terms of this
Agreement.



“B/A Drawing” means B/As accepted and purchased (and any B/A Equivalent Loans made in
lieu of such acceptance and purchase) on the same date and as to which a single Contract Period is
in effect.




“B/A Equivalent Loan” has the meaning set forth in Section 2.06(k).



“Bankruptcy Event” means, with respect to any Person, that such Person becomes the
subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee,
administrator, custodian, assignee for the benefit of creditors or similar Person charged with the
reorganization or liquidation of its business appointed for it, or, in the good faith determination
of the Administrative Agent, has taken any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any such proceeding or appointment, provided that a
Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition of
any ownership interest, in such Person by a Governmental Authority or instrumentality thereof,
provided, further, that such ownership interest does not result in or provide such
Person with immunity from the jurisdiction of courts within the United States of America or from
the enforcement of judgments or writs of attachment on its assets or permit such Person (or such
Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts
or agreements made by such Person.



“Board” means the Board of Governors of the Federal Reserve System of the United
States of America.




“Borrower” means the Company or any Borrowing Subsidiary.



“Borrower Joinder Agreement” means a Borrower Joinder Agreement substantially in the
form of Exhibit B-1.



“Borrower Termination Agreement” means a Borrower Termination Agreement, substantially
in the form of Exhibit B-2.



“Borrowing” means (a) Loans of the same Class, Type and currency made, converted or
continued on the same date and, in the case of LIBOR Loans or EURIBOR Loans, as to which a single
Interest Period is in effect or (b) a Swingline Loan.



“Borrowing Minimum” means (a) in the case of a Borrowing denominated in US Dollars,
US$5,000,000, (b) in the case of a Borrowing denominated in Sterling, £500,000, (c) in the case of
a Borrowing denominated in Euros, €3,000,000, (d) in the case of a Borrowing denominated in
Canadian Dollars, Cdn.$5,000,000 and (e) in the case of a Borrowing denominated in any Alternative
Currency, the smallest amount of such Alternative Currency that is an integral multiple of
1,000,000 units of such currency and that has a US Dollar Equivalent in excess of US$5,000,000.


 


4









 





“Borrowing Multiple” means (a) in the case of a Borrowing denominated in US Dollars,
US$100,000, (b) in the case of a Borrowing denominated in Sterling, £100,000, (c) in the case of a
Borrowing denominated in Euros, €100,000, (d) in the case of a Borrowing denominated in Canadian
Dollars, Cdn.$100,000 and (e) in the case of a Borrowing denominated in any Alternative Currency,
100,000 units of such currency.



“Borrowing Request” means a request by a Borrower for a Revolving Borrowing in
accordance with Section 2.03.



“Borrowing Subsidiary” means (a) Brecon Holdings Limited, a company organized under
the laws of England and Wales, (b) Brecon Pharmaceuticals Limited, a company formed under the laws
of England and Wales, (c) AmerisourceBergen Canada Corporation, a corporation organized under the
laws of Canada, (d) AmerisourceBergen Specialty Group Canada Corporation, a corporation organized
under the laws of Canada, (e) Innomar Strategies, Inc., a corporation formed under the laws of the
Province of Ontario, and (f) any other Subsidiary that has become a Borrowing Subsidiary as
provided in Section 2.21 and has not ceased to be a Borrowing Subsidiary as provided in such
Section.



“Business Day” means any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to remain closed;
provided that (a) when used in connection with a LIBOR Loan in any currency, the term
“Business Day” shall also exclude any day on which banks are not open for dealings in deposits in
such currency in the London interbank market, (b) when used in connection with a EURIBOR Loan, the
term “Business Day” shall also exclude any day on which the TARGET payment system is not open for
the settlement of payments in Euros, (c) when used in connection with a Canadian Prime Rate Loan
(including any Swingline Loan denominated in Canadian Dollars) or a B/A, the term “Business Day”
shall also exclude any day on which banks are not open for business in Toronto and (d) when used in
connection with a Loan to any Borrower organized in a jurisdiction other than the United States of
America, the United Kingdom or Canada, the term “Business Day” shall also exclude any day on which
commercial banks in the jurisdiction of organization of such Borrower are authorized or required by
law to remain closed.



“CAM” means the mechanism for the allocation and exchange of interests in the Tranches
and the collections thereunder established under Article IX.



“CAM Exchange” means the exchange of the Lenders’ interests provided for in Article
IX.



“CAM Exchange Date” means the date on which any event referred to in clause (h) or (i)
of Article VII shall occur with respect to the Company.



“CAM Percentage” means, as to each Lender, a fraction, expressed as a decimal, of
which (a) the numerator shall be the sum of the US Dollar Equivalents (determined on the basis of
Exchange Rates prevailing on the CAM Exchange Date) of the Designated Obligations owed to such
Lender (whether or not at the time due and payable) immediately prior to the CAM Exchange and (b)
the denominator shall be the sum of the US Dollar Equivalents (as so determined) of the Designated
Obligations owed to all the Lenders (whether or not at the time due and payable) immediately prior
to the CAM Exchange. For purposes of determining the CAM Percentages, the amount payable in
respect of any B/A shall be deemed to be the face amount thereof, reduced by the unaccreted
portion of the discount at which such B/A shall have been purchased (taking into account the
applicable Discount Rates and acceptance fees), as determined by the Administrative Agent in
accordance with accepted financial practice.


 


5









 





“Canadian Borrowing Subsidiary” means any Borrowing Subsidiary that is a Canadian
Subsidiary.




“Canadian Dollars” or “Cdn.$” means the lawful money of Canada.



“Canadian Prime Rate” means, for any day, the rate of interest per annum (rounded
upwards, if necessary, to the next 1/100 of 1%) equal to the greater of (a) the interest rate per
annum publicly announced from time to time by the Administrative Agent, acting through its Toronto
branch, as its reference rate in effect on such day at its principal office in Toronto for
determining interest rates applicable to commercial loans denominated in Canadian Dollars and made
by it in Canada (each change in such reference rate being effective from and including the date
such change is publicly announced as being effective) and (b) the interest rate per annum equal to
the sum of (i) the CDOR Rate on such day (or, if such rate is not so reported on the Reuters Screen
CDOR Page, the average of the rate quotes for bankers’ acceptances denominated in Canadian Dollars
with a one month term received by the Administrative Agent, acting through its Toronto branch, at
approximately 10:00 a.m., Toronto time, on such day (or, if such day is not a Business Day, on the
next preceding Business Day) from the Schedule I Reference Lenders) and (ii) 0.50% per annum.



“Canadian Subsidiary” means any Subsidiary that is incorporated or otherwise organized
under the laws of Canada or any political subdivision thereof.



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



“CDOR Rate” means, on any date, an interest rate per annum equal to the stated average
discount rate applicable to bankers’ acceptances denominated in Canadian Dollars with a term of one
month (for purposes of the definition of “Canadian Prime Rate”) or with a term equal to the
Contract Period of the relevant B/As (for purposes of the definition of “Discount Rate”) appearing
on the Reuters Screen CDOR Page (or on any successor or substitute page of such Screen, or any
successor to or substitute for such Screen, providing rate quotations comparable to those currently
provided on such page of such Screen, as determined by the Administrative Agent, acting through its
Toronto branch, from time to time) at approximately 10:00 a.m., Toronto time, on such date (or, if
such date is not a Business Day, on the next preceding Business Day).



“Change in Control” means (a) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or group (within the meaning of the Securities Exchange
Act of 1934 and the rules of the Securities and Exchange Commission thereunder as in effect on the
Closing Date), of Equity Interests representing more than 30% of either the aggregate ordinary
voting power or the aggregate equity value represented by the issued and outstanding Equity
Interests of the Company; (b) occupation of a majority of the seats (other than vacant seats) on
the board of directors of the Company by Persons who were not (i) directors of the Company on the
Closing Date, (ii) nominated by the board of directors of the Company or (iii) appointed by
directors referred to in the
preceding clauses (i) and (ii); or (c) the occurrence of a “Change of Control” (or other
similar event or condition however denominated) under any Material Indebtedness.


 


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“Change in Law” means (a) the adoption of any law, rule or regulation after the
Closing Date, (b) any change in any law, rule or regulation or in the interpretation or application
thereof by any Governmental Authority after the Closing Date or (c) compliance by any Lender or
Issuing Bank (or, for purposes of Section 2.15(b), by any lending office of such Lender or Issuing
Bank or by such Lender’s or Issuing Bank’s holding company, if any) with any request, guideline or
directive (whether or not having the force of law) of any Governmental Authority made or issued
after the Closing Date; provided, however, that for purposes of this Agreement, the
Dodd-Frank Wall Street Reform and Consumer Protection Act, all requests, rules, guidelines or
directives in connection therewith and all requests, rules, guidelines or directives concerning
capital adequacy promulgated by the Bank for International Settlements, the Basel Committee on
Banking Regulations and Supervisory Practices (or any successor or similar authority) or the United
States or any foreign financial regulatory authorities, shall be deemed to have been adopted and
become effective after the Closing Date.




“Claims” has the meaning set forth in Section 2.18(c).



“Class”, when used in reference to (a) any Loan or Borrowing, refers to whether such
Loan, or the Loans comprising such Borrowing, are Tranche One Revolving Loans, Tranche Two
Revolving Loans, Tranche One Swingline Loans or Tranche Two Swingline Loans, and (b) any
Commitment, refers to whether such Commitment is a Tranche One Commitment or a Tranche Two
Commitment.




“Closing Date” means March 18, 2011.




“Code” means the Internal Revenue Code of 1986.



“Commitments” means the Tranche One Commitments and the Tranche Two Commitments, as
the case may be. The aggregate amount of the Commitments as of the Restatement Effective Date is
US$700,000,000.




“Commitment Increase” has the meaning set forth in Section 2.09(e).




“Company” has the meaning set forth in the heading to this Agreement.



“Consolidated EBITDA” means, for any period, Consolidated Net Income for such period
plus (a) without duplication and to the extent deducted in determining such Consolidated
Net Income, the sum, without duplication, of (i) consolidated interest expense for such period,
(ii) consolidated income tax expense for such period, (iii) all amounts attributable to
depreciation and amortization for such period, (iv) any special one-time or extraordinary charges
or extraordinary losses for such period, in each case to the extent not involving cash payments by
the Company or any Subsidiary in such period or any future period, and (v) any LIFO adjustment (if
negative) or charge for such period, and minus (b) without duplication and to the extent
included in determining such Consolidated Net Income, any special one-time or extraordinary
non-cash gains for such period and any LIFO adjustment (if positive) or credit, all determined on a
consolidated basis in accordance with GAAP. In the event that the Company or any Subsidiary shall
have completed an acquisition or disposition of any material Person, division or business (such
materiality to be reasonably determined by the Company) unit since the beginning of the relevant
period, Consolidated EBITDA shall be determined for such period on a pro forma
basis as if such acquisition or disposition, and any related incurrence or repayment of
Indebtedness, had occurred at the beginning of such period.


 


7









 





“Consolidated Net Income” means, for any period, the net income or loss of the Company
and the Subsidiaries for such period determined on a consolidated basis in accordance with GAAP;
provided that there shall be excluded (a) the income or loss of any Person (other than the
Company) that is not a Subsidiary, except to the extent of the amount of dividends or other
distributions actually paid to the Company or any of the Subsidiaries during such period, (b) the
income or loss of any Person accrued prior to the date it becomes a Subsidiary or is merged into,
amalgamated with or consolidated with the Company or any Subsidiary or the date that such Person’s
assets are acquired by the Company or any Subsidiary and (c) the income or loss of, and any amounts
referred to in clause (a) above paid to, any Subsidiary that is not wholly owned by the Company to
the extent such income or loss or such amounts are attributable to the noncontrolling interest in
such Subsidiary.



“Consolidated Tangible Assets” means the book value of the total consolidated assets
of the Company and the Subsidiaries less the book value of all intangible assets, including
goodwill, trademarks, non-compete agreements, customer relationships, patents, unamortized deferred
financing fees, and other rights or nonphysical resources that are presumed to represent an
advantage to the Company in the marketplace, in each case determined on a consolidated basis in
accordance with GAAP.



“Contract Period” means, with respect to any B/A, the period commencing on the date
such B/A is issued, accepted and purchased and ending on the date that is seven or 14 days or one,
two, three and six months thereafter, as the applicable Canadian Borrowing Subsidiary may elect or,
to the extent agreed to by each Tranche One Lender, such other number of days (not in excess of
180) as shall be requested by the applicable Canadian Borrowing Subsidiary; provided that
if such Contract Period would end on a day other than a Business Day, such Contract Period shall be
extended to the next succeeding Business Day.



“Control” means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through the ability to
exercise voting power, by contract or otherwise. “Controlling” and “Controlled”
have meanings correlative thereto.



“Credit Party” means the Administrative Agent, an Issuing Bank, a Swingline Lender or
any other Lender.



“Default” means any event or condition which constitutes an Event of Default or which
upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.



“Defaulting Lender” means any Lender that (a) has failed, within two Business Days of
the date required to be funded, purchased or paid, to (i) fund any portion of its Loans, (ii) fund
any portion of its participations in Letters of Credit or Swingline Loans, (iii) accept and
purchase any B/A or (iv) pay over to any Credit Party any other amount required to be paid by it
hereunder, unless, in the case of clause (i) above, such Lender notifies the Administrative Agent
in writing that such failure is the result of such Lender’s good faith determination that a
condition precedent to funding (specifically identified and including the particular default, if
any) has not been satisfied, (b) has notified the Company or any Credit Party in writing, or has
made a public statement to the effect, that it does not intend or expect to comply with any of its
funding obligations under this Agreement (unless such writing or public statement indicates that
such position is based on such Lender’s good faith determination that a condition precedent


 


8









 






(specifically identified and including the particular default, if any) to funding a loan under this
Agreement cannot be satisfied), (c) has failed, within three Business Days after request by a
Credit Party, acting in good faith, to provide a certification in writing from an
authorized officer of such Lender that it will comply with its obligations (and is financially
able to meet such obligations) to fund prospective Loans and participations in then outstanding
Letters of Credit and Swingline Loans under this Agreement, provided that such Lender shall
cease to be a Defaulting Lender pursuant to this clause (c) upon such Credit Party’s receipt of
such certification in form and substance satisfactory to it and the Administrative Agent, or (d)
has become the subject of a Bankruptcy Event.



“Designated Currency” means, in relation to any Tranche, any currency (a) that is
freely transferable and convertible into US Dollars in the London interbank market, (b) for which
LIBO Rates can be determined by reference to the applicable Reuters screen as provided in the
definition of “LIBO Rate” and (c) that has been designated by the Administrative Agent as a
Designated Currency under such Tranche at the request of the Company and with the consent of each
Lender with a Commitment or a Revolving Credit Exposure under such Tranche. If the applicable
Lenders and the Administrative Agent shall so elect, the designation of a currency as a Designated
Currency in relation to any Tranche may be limited to one or more of the Borrowers entitled to
borrow under such Tranche.



“Designated Obligations” means all obligations of the Borrowers with respect to (a)
principal of and interest on the Revolving Loans, (b) participations in Swingline Loans funded (or
required to be funded as provided in Article IX) by the Tranche One Lenders or the Tranche Two
Lenders, as applicable, (c) amounts payable to the Tranche One Lenders in respect of B/As, (d)
unreimbursed LC Disbursements and interest thereon and (e) all facility fees and Letter of Credit
participation fees.




“Designated Subsidiary” means each Subsidiary that is not an Excluded Subsidiary.



“Discount Proceeds” means, with respect to any B/A, an amount (rounded upward, if
necessary, to the nearest Cdn.$.01) calculated by multiplying (a) the face amount of such B/A by
(b) the quotient obtained by dividing (i) one by (ii) the sum of (A) one and (B) the product of (x)
the Discount Rate (expressed as a decimal) applicable to such B/A and (y) a fraction of which the
numerator is the Contract Period applicable to such B/A and the denominator is 365, with such
quotient being rounded upward or downward to the fifth decimal place and .000005 being rounded
upward.



“Discount Rate” means, with respect to a B/A being accepted and purchased on any day,
(a) for a Lender which is a Schedule I Lender, (i) the CDOR Rate applicable to such B/A or (ii) if
the discount rate for a particular Contract Period is not quoted on the Reuters Screen CDOR Page,
the arithmetic average (as determined by the Administrative Agent, acting through its Toronto
branch) of the percentage discount rates (expressed as a decimal and rounded upward, if necessary,
to the nearest 1/100 of 1%) quoted to the Administrative Agent, acting through its Toronto branch,
by the Schedule I Reference Lenders as the percentage discount rate at which each such bank would,
in accordance with its normal practices, at approximately 10:00 a.m., Toronto time, on such day, be
prepared to purchase bankers’ acceptances accepted by such bank having a face amount and term
comparable to the face amount and Contract Period of such B/A and (b) for a lender which is a
Non-Schedule I Lender, the lesser of (i) the CDOR Rate applicable to such B/A referred to in clause
(a) above as if such Non-Schedule I Lender were a Schedule I Lender plus 0.10% per annum
and (ii) the arithmetic average (as determined by the Administrative Agent, acting through its
Toronto branch) of the percentage discount rates (expressed as a decimal and rounded upward, if
necessary, to the nearest 1/100 of 1%) quoted to the Administrative Agent, acting through its
Toronto branch, by the Non-Schedule I Reference Lenders as the percentage discount rate at which
each such bank would, in accordance with its normal
practices, at approximately 10:00 a.m., Toronto time, on such day, be prepared to purchase
bankers’ acceptances accepted by such bank having a face amount and term comparable to the face
amount and Contract Period of such B/A.


 


9









 





“Documentation Agents” means The Bank of Nova Scotia, The Bank of Tokyo-Mitsubishi
UFJ, LTD., New York Branch and US Bank National Association.




“Domestic Subsidiary” means any Subsidiary other than a Foreign Subsidiary.



“Effective Date” means the date on which the conditions specified in Section 4.01 are
satisfied (or waived in accordance with Section 11.02). The parties acknowledge that the Effective
Date occurred on March 18, 2011.



“Eligible Assignee” means (a) a Lender, (b) an Affiliate of a Lender, (c) an Approved
Fund and (d) any other Person, other than, in each case, a natural person or the Company or any
Subsidiary.



“Environmental Laws” means all laws, rules, regulations, codes, ordinances, orders,
decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into
by any Governmental Authority, relating in any way to the environment, preservation or reclamation
of natural resources, the management, release or threatened release of any Hazardous Material or to
health and safety matters.



“Environmental Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the
Company or any Subsidiary directly or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or
threatened release of any Hazardous Materials into the environment or (e) any contract, agreement
or other consensual arrangement pursuant to which liability is assumed or imposed with respect to
any of the foregoing.



“Equity Interests” means shares of capital stock, partnership interests, membership
interests in a limited liability company, beneficial interests in a trust or other equity ownership
interests in a Person, and any warrants, options or other rights entitling the holder thereof to
purchase or acquire any such equity interest.



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



“ERISA Affiliate” means any trade or business (whether or not incorporated) that,
together with the Company, is treated as a single employer under Section 414(b) or (c) of the Code
or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.


 


10









 





“ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or
the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day
notice period is waived); (b) a failure by any Plan to satisfy the minimum funding standards (as
defined in Section 412 of the Code or Section 302 of ERISA) applicable to such Plan, in each
instance, whether or not waived; (c) the filing pursuant to Section 412(c) of the Code or Section
302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any
Plan; (d) a determination that any Plan is, or is expected to be, in “at-risk” status (as
defined in Section 430(i)(4) of the Code or Section 303(i)(4) of ERISA); (e) the incurrence by the
Company or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (f) the receipt by the Company or any ERISA Affiliate from the PBGC or a
plan administrator of any notice relating to an intention to terminate any Plan or Plans or to
appoint a trustee to administer any Plan; (g) the incurrence by the Company or any of its ERISA
Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (h) the receipt by the Company or any ERISA Affiliate of any notice, or the
receipt by any Multiemployer Plan from the Company or any ERISA Affiliate of any notice, concerning
the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is
expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA or in
“endangered” or “critical” status, within the meaning of Section 432 of the Code or Section 305 of
ERISA.



“EURIBO Rate” means, with respect to any EURIBOR Borrowing for any Interest Period,
(a) the applicable Screen Rate or (b) if no Screen Rate is available for such Interest Period, the
arithmetic mean of the rates quoted by the Reference Banks to leading banks in the Banking
Federation of the European Union for the offering of deposits in Euros and for a period comparable
to such Interest Period, in each case as of the Specified Time on the Quotation Day.



“EURIBOR”, when used in reference to any Loan or Borrowing, refers to whether such
Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by
reference to the Adjusted EURIBO Rate.



“Euro” or “€” means the single currency of the European Union as constituted
by the Treaty on European Union and as referred to in the EMU Legislation.



“Euro Overnight Rate” means an interest rate per annum (rounded upwards, if necessary,
to the next 1/16 of 1%) equal to the rate at which overnight deposits in Euro approximately equal
in principal amount to such Borrowing are offered to the principal London office of the
Administrative Agent in immediately available funds in the Euro interbank market at approximately
11:00 a.m., London time, on such day.




“Event of Default” has the meaning assigned to such term in Article VII.



“Exchange Rate” means on any day, for purposes of determining the US Dollar Equivalent
of any other currency, the rate at which such other currency may be exchanged into US Dollars at
the time of determination on such day as set forth on the Reuters WRLD Page for such currency. In
the event that such rate does not appear on any Reuters WRLD Page, the Exchange Rate shall be
determined by reference to such other publicly available service for displaying exchange rates as
may be agreed upon by the Administrative Agent and the Company or, in the absence of such an
agreement, such Exchange Rate shall instead be the arithmetic average of the spot rates of exchange
of the Administrative Agent in the market where its foreign currency exchange operations in respect
of such currency are then being conducted, at or about such time as the Administrative Agent shall
elect after determining that such rates shall be the basis for determining the Exchange Rate, on
such date for the purchase of US Dollars for delivery two Business Days later; provided
that if at the time of any such determination, for any reason, no such spot rate is being quoted,
the Administrative Agent may use any reasonable method it deems appropriate to determine such rate,
and such determination shall be conclusive absent manifest error.


 


11









 





“Excluded Subsidiary” means (a) Foreign Subsidiaries, (b) Securitization Entities, (c)
Subsidiaries that are less than 100% owned by the Company to the extent such Subsidiaries are
prohibited by shareholders agreements, joint venture agreements or other similar organizational
documents from guaranteeing the Obligations, (d) Subsidiaries that have assets (including Equity
Interests in other Subsidiaries) of less than $10,000,000 for any such Subsidiary (provided
that all such Subsidiaries’ assets shall not be in excess of $100,000,000 in the aggregate) and (e)
J.M. Blanco, Inc., a Delaware corporation.



“Excluded Taxes” means, with respect to any Lender, (a) income or franchise Taxes
imposed on (or measured by) its net income by the United States of America or by the jurisdiction
under the laws of which such Lender is organized, in which its principal office is located or in
which its applicable Lending Office is located, (b) any branch profits Taxes imposed by the United
States of America or any similar Taxes imposed by any other jurisdiction described in clause (a)(i)
above, (c) any withholding Taxes that are attributable to the failure of such Lender to comply with
Section 2.17(f) and 2.17(d) (other than a Lender that becomes a Lender through an assignment under
Section 2.19(b) or by operation of the CAM) any withholding Taxes that are imposed on amounts
payable by a Borrower organized in the United States of America, the United Kingdom or Canada by
any taxation authority of such Borrower’s jurisdiction of organization (including country) on
amounts payable from locations within such jurisdiction to such Lender’s applicable Lending Office
designated for Borrowers organized in such jurisdiction, to the extent such Taxes are in effect and
applicable (including FATCA) (assuming the taking by such Borrower and such Lender of all actions
required in order for available exemptions from such Taxes to be effective) at the time such Lender
becomes a party to this Agreement (or designates a new Lending Office for Borrowers organized in
such jurisdiction), except to the extent that such Lender (or its assignor, if any) was entitled,
at the time of designation of a new Lending Office (or assignment), to receive additional amounts
with respect to such withholding Taxes pursuant to Section 2.17.



“Existing Credit Agreement” means the Credit Agreement dated as of November 14, 2006,
as amended, among the Company, the borrowing subsidiaries party thereto, the lenders party thereto
and JPMCB, as administrative agent.



“Existing Letters of Credit” means each letter of credit previously issued for the
account of the Company pursuant to the Existing Credit Agreement that is (a) outstanding on the
Effective Date and (b) listed on Schedule 2.05.



“Existing Securitization” means the Securitization provided for in the Amended and
Restated Receivables Purchase Agreement dated as of April 29, 2010, among Amerisource Receivables
Financial Corporation, as seller, AmerisourceBergen Drug Corporation, as initial servicer, various
purchaser groups from time to time party thereto and Bank of America, National Association, as
administrator.



“FATCA” means Sections 1471 through 1474 of the Code, as of the Closing Date and any
regulations or official interpretations thereof.



“Federal Funds Effective Rate” means, for any day, the weighted average (rounded
upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank of New York or, if such
rate is not so published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next
1/100 of 1%) of the quotations for such day for such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing selected by it.


 


12









 





“Financial Officer” means (a) with respect to the Company, the chief financial
officer, principal accounting officer, treasurer, controller, assistant treasurer or director of
treasury of the Company and (b) with respect to any Borrowing Subsidiary, the chief financial
officer, principal accounting officer, treasurer, controller, assistant treasurer or director of
treasury of the Company or such Borrowing Subsidiary.




“Fitch” means Fitch, Inc., and any successor to its rating agency business.



“Foreign Subsidiary” means any Subsidiary that is organized under the laws of a
jurisdiction other than the United States of America, any State thereof or the District of
Columbia.




“GAAP” means generally accepted accounting principles in the United States of America.



“Governmental Authority” means the government of the United States of America, any
other nation or any political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government (including any supra-national body exercising such powers or functions,
such as the European Union or the European Central Bank).



“Guarantee” of or by any Person (the “guarantor”) means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic effect of
guaranteeing any Indebtedness of any other Person (the “primary obligor”) in any manner,
whether directly or indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or to purchase (or to advance or supply funds for the purchase of) any security for
the payment thereof, (b) to purchase or lease property, securities or services for the purpose of
assuring the owner of such Indebtedness of the payment thereof, (c) to maintain working capital,
equity capital or any other financial statement condition or liquidity of the primary obligor so as
to enable the primary obligor to pay such Indebtedness or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness; provided that
the term “Guarantee” shall not include endorsements for collection or deposit in the
ordinary course of business.



“Guarantee Agreement” means the Guarantee Agreement dated as of March 18, 2011, among
the Designated Subsidiaries and the Administrative Agent, as supplemented.



“Guarantee Requirement” means, at any time, the requirement that the Administrative
Agent shall have received from each Designated Subsidiary either (a) a counterpart of the Guarantee
Agreement, duly executed and delivered on behalf of such Designated Subsidiary, or (b) in the case
of any Person that becomes a Designated Subsidiary after the Effective Date, a supplement to the
Guarantee Agreement in a form reasonably acceptable to the Company and the Administrative Agent,
duly executed and delivered on behalf of such Designated Subsidiary; provided that a
Designated Subsidiary shall not be required to become a Guarantor under the Guarantee Agreement if
the Company shall have advised the Administrative Agent that it would be a violation of applicable
law for such Designated Subsidiary to take such action or if, in the judgment of the Administrative
Agent,
in consultation with the Company, the expense, tax or regulatory consequences or difficulty of
taking such action would not, in light of the benefits to accrue to the Lenders, justify taking
such action.


 


13









 





“Guarantor” means each Subsidiary that has entered into the Guarantee Agreement as a
guarantor.



“Hazardous Materials” means all explosive or radioactive substances or wastes and all
hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas,
infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to
any Environmental Law.



“Hedging Agreement” means any interest rate protection agreement, foreign currency
exchange agreement, commodity price protection agreement or other interest or currency exchange
rate or commodity price hedging arrangement or any credit default swap agreement.




“HMRC” means H.M. Customs and Revenue.




“Increase Effective Date” has the meaning set forth in Section 2.09(e).




“Increasing Lender” has the meaning set forth in Section 2.09(d).



“Indebtedness” of any Person means, without duplication, (a) all obligations of such
Person for borrowed money or with respect to deposits (other than customer deposits in respect of
accounts receivable maintained in the ordinary course of business consistent with past practices)
or advances of any kind, (b) all obligations of such Person evidenced by Senior Notes, debentures,
notes or similar instruments, (c) all obligations of such Person upon which interest charges are
customarily paid (excluding trade accounts payable and obligations to pay salary or benefits under
deferred compensation, executive compensation or other benefit programs), (d) all obligations of
such Person under conditional sale or other title retention agreements relating to property
acquired by such Person, (e) all obligations of such Person in respect of the deferred purchase
price of property or services (excluding current accounts payable incurred in the ordinary course
of business), (f) all Indebtedness of others secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property
owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed,
(g) all Guarantees by such Person of Indebtedness of others, (h) all Capital Lease Obligations and
Synthetic Lease Obligations of such Person, (i) all obligations, contingent or otherwise, of such
Person as an account party in respect of letters of credit and letters of guaranty, (j) all
obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances and (k) all
obligations of such Person incurred under or in connection with a Securitization. The Indebtedness
of any Person shall include the Indebtedness of any other entity (including any partnership in
which such Person is a general partner) to the extent such Person is liable therefor as a result of
such Person’s ownership interest in or other relationship with such entity, except to the extent
the terms of such Indebtedness provide that such Person is not liable therefor.




“Indemnified Taxes” means Taxes other than Excluded Taxes.




“Indemnitee” has the meaning set forth in Section 11.03(b).



“Index Debt” means the Company’s senior, unsecured, non-credit-enhanced long-term
Indebtedness for borrowed money.



“Information Memorandum” means the Confidential Information Memorandum dated September
2011 relating to the Company and the Transactions.


 


14









 






“Initial Borrowings” has the meaning set forth in Section 2.09(e).



“Interest Election Request” means a request by a Borrower to convert or continue a
Revolving Borrowing or B/A Drawing in accordance with Section 2.08.



“Interest Payment Date” means (a) with respect to any ABR Loan or Canadian Prime Rate
Loan (other than a Swingline Loan), the first day of each January, April, July and October, (b)
with respect to any LIBOR Loan or EURIBOR Loan, the last day of the Interest Period applicable to
the Borrowing of which such Loan is a part and, in the case of a LIBOR Borrowing or a EURIBOR
Borrowing with an Interest Period of more than three months’ duration, each day prior to the last
day of such Interest Period that occurs at intervals of three months’ duration after the first day
of such Interest Period, (c) with respect to any Swingline Loan, the day that such Loan is required
to be repaid and (d) with respect to any Swingline Loan denominated in Sterling or Euro, the first
Business Day of each calendar month.



“Interest Period” means, with respect to any LIBOR Borrowing or EURIBOR Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically corresponding day in
the calendar month that is one, two, three or six months (or, with consent of each Lender under the
applicable Tranche, nine or 12 months) thereafter, as the applicable Borrower may elect;
provided that (a) if any Interest Period would end on a day other than a Business Day, such
Interest Period shall be extended to the next succeeding Business Day unless such next succeeding
Business Day would fall in the next calendar month, in which case such Interest Period shall end on
the next preceding Business Day and (b) any Interest Period that commences on the last Business Day
of a calendar month (or on a day for which there is no numerically corresponding day in the last
calendar month of such Interest Period) shall end on the last Business Day of the last calendar
month of such Interest Period. For purposes hereof, the date of a Borrowing initially shall be the
date on which such Borrowing is made and thereafter shall be the effective date of the most recent
conversion or continuation of such Borrowing.



“Issuing Bank” means (a) JPMCB and (b) each other Lender that shall have become an
Issuing Bank hereunder as provided in Section 2.05(j) (other than any Person that shall have ceased
to be an Issuing Bank as provided in Section 2.05(k)), each in its capacity as an issuer of Letters
of Credit hereunder. Each Issuing Bank may, in its discretion, arrange for one or more Letters of
Credit to be issued by Affiliates of such Issuing Bank, in which case the term “Issuing Bank” shall
include any such Affiliate with respect to Letters of Credit issued by such Affiliate.




“Issuing Bank Agreement” has the meaning set forth in Section 2.05(j).




“JPMCB” means JPMorgan Chase Bank, N.A.



“LC Commitment” shall mean, as to each Issuing Bank, the commitment of such Issuing
Bank to issue Letters of Credit pursuant to Section 2.05. The initial amount of each Issuing
Bank’s LC Commitment is set forth on Schedule 2.05 to the Amendment Agreement or in such Issuing
Bank’s Issuing Bank Agreement.



“LC Disbursement” means a Tranche One LC Disbursement or a Tranche Two LC
Disbursement.



“LC Exposure” means, at any time, the sum of the Tranche One LC Exposure and the
Tranche Two LC Exposure at such time.


 


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“Lenders” means the Persons listed on Schedule 2.01 to the Amendment Agreement and any
other Person that shall have become a Lender pursuant to an Assignment and Assumption or Section
2.09(d), other than any such Person that ceases to be a party hereto pursuant to an Assignment and
Assumption. Unless the context otherwise requires, the term “Lenders” includes each Swingline
Lender.




“Lending Office” means a Tranche One Lending Office or a Tranche Two Lending Office.



“Letter of Credit” means any Tranche One Letter of Credit or Tranche Two Letter of
Credit. For the avoidance of doubt, nothing herein shall prohibit any Lender from issuing letters
of credit for the account of the Company and the Subsidiaries in addition to those issued under
this Agreement.



“Leverage Ratio” means, on any date, the ratio of (a) Total Indebtedness as of such
date to (b) Consolidated EBITDA for the period of four consecutive fiscal quarters of the Company
ended on such date (or, if such date is not the last day of a fiscal quarter, ended on the last day
of the fiscal quarter of the Company most recently ended prior to such date); provided that
for purposes of determining the Leverage Ratio at any time, the outstanding amount of the Revolving
Loans and B/As and all other revolving Indebtedness, and the amounts of all Securitizations,
included in Total Indebtedness shall be deemed to equal the average of (i) the outstanding amounts
of the Revolving Loans and B/As and other revolving Indebtedness and (ii) the amounts of all
Securitizations, in each case on the last day of each of the four most recently ended fiscal
quarters, net of Permitted Investments not to exceed $100,000,000 on the last day of each such
quarter.



“LIBO Rate” means, with respect to any LIBOR Borrowing denominated in any currency for
any Interest Period, (a) the applicable Screen Rate or (b) if no Screen Rate is available for such
currency or for such Interest Period, the arithmetic mean of the rates quoted by the Reference
Banks to leading banks in the London interbank market for the offering of deposits in such currency
and for a period comparable to such Interest Period, in each case as of the Specified Time on the
Quotation Day.



“LIBOR”, when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to
the Adjusted LIBO Rate.



“Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien,
pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, (b) the
interest of a vendor or a lessor under any conditional sale agreement, capital lease or title
retention agreement (or any financing lease having substantially the same economic effect as any of
the foregoing) relating to such asset and (c) in the case of securities, any purchase option, call
or similar right of a third party with respect to such securities.



“Loan Documents” means the Amendment Agreement, this Agreement, each promissory note
issued hereunder, the Guarantee Agreement and any other guarantee agreement entered into pursuant
to Section 6.01(a).



“Loan Parties” means, at any time, the Company, each other Borrower and each
Subsidiary that at such time is, or is required to be, a party to the Guarantee Agreement or any
other guarantee agreement entered into pursuant to Section 6.01(a).


 


16









 





“Loans” means the loans made by the Lenders to the Borrowers pursuant to this
Agreement.



“Local Time” means (a) with respect to a Loan or Borrowing denominated in US
Dollars or any Letter of Credit, New York City time, (b) with respect to a Loan or
Borrowing denominated in Sterling, Euros or an Alternative Currency, London time and (c) with
respect to a Canadian Prime Rate Loan or other Loan or Borrowing denominated in Canadian Dollars or
any B/A, Toronto time.




“Mandatory Costs Rate” has the meaning set forth in Exhibit E.



“Material Adverse Effect” means a material adverse effect on (a) the business, results
of operations or financial condition of the Company and the Subsidiaries taken as a whole, (b) the
ability of the Loan Parties, taken as a whole, to perform any of their obligations under any Loan
Document or (c) the rights of or benefits available to the Lenders under any Loan Document.



“Material Indebtedness” means Indebtedness (other than the Loans, B/As and Letters of
Credit), or obligations in respect of one or more Hedging Agreements, of any one or more of the
Company and the Subsidiaries in an aggregate principal amount exceeding US$50,000,000. For
purposes of determining Material Indebtedness, the “principal amount” of the obligations of the
Company or any Subsidiary (a) in respect of any Hedging Agreement at any time shall be the maximum
aggregate amount (giving effect to any netting agreements) that the Company or such Subsidiary
would be required to pay if such Hedging Agreement were terminated at such time and (b) in respect
of any Securitization shall be determined as set forth in the definition of such term.




“Maturity Date” means October 28, 2016.



“Moody’s” means Moody’s Investors Service, Inc., and any successor to its rating
agency business.



“Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.



“Non-Schedule I Lender” means any Lender not named on Schedule I to the Bank Act
(Canada).




“Non-Schedule I Reference Lender” means JPMCB, acting through its Toronto branch.



“Obligations” means (a) the principal of and premium, if any, and interest (including
interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding) on the Loans, (b) all
reimbursement obligations of any Borrower in respect of B/As accepted hereunder, when and as due,
whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise, (c)
each payment required to be made by any Borrower under this Agreement in respect of any Letter of
Credit, when and as due, including payments in respect of reimbursement of LC Disbursements,
interest thereon and obligations to provide cash collateral, (d) all other monetary obligations,
including fees,
costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or
otherwise (including monetary obligations incurred during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in
such proceeding), of the Loan Parties under this Agreement and the other Loan Documents and (e) the
due and punctual payment and performance of all obligations of the Company and the Subsidiaries
under all Hedging Agreements and cash management arrangements or agreements (i) existing on the
Restatement Effective Date with a Person that is a Lender on such date (or an Affiliate of such a
Lender) or (ii) with a Person that shall have been a Lender at the time the applicable Hedging
Agreement or cash management arrangement or agreement was entered into (or an Affiliate of such a
Lender).


 


17









 





“Other Connection Taxes” means, with respect to any Credit Party, Taxes imposed as a
result of a present or former connection between such Credit Party and the jurisdiction imposing
such Taxes (other than a connection arising from such Credit Party having executed, delivered,
enforced, become a party to, performed its obligations under, received payments under, received or
perfected a security interest under, or engaged in any other transaction pursuant to, or enforced,
any Loan Document, or sold or assigned an interest in any Loan Document).



“Other Taxes” means any and all present or future stamp or documentary Taxes or any
other excise or property Taxes, charges or similar levies arising from any payment made under any
Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, any
Loan Document.




“Participant” has the meaning set forth in Section 11.04(f).




“Participant Register” has the meaning set forth in Section 11.04(f).



“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in
ERISA.




“Permitted Encumbrances” means:



(a) Liens imposed by law for Taxes that are not yet due or are being contested in compliance
with Section 5.04;



(b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens
imposed by law, arising in the ordinary course of business and securing obligations that are not
overdue by more than 60 days or are being contested in compliance with Section 5.04;



(c) pledges and deposits made (i) in the ordinary course of business in compliance with
workers’ compensation, unemployment insurance and other social security laws and (ii) in respect of
letters of credit, bank guarantees or similar instruments issued for the account of the Company or
any Subsidiary in the ordinary course of business supporting obligations of the type set forth in
clause (i) above;



(d) pledges and deposits made (i) to secure the performance of bids, trade contracts, leases,
statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like
nature, in each case in the ordinary course of business and (ii) in respect of letters of credit,
bank guarantees or similar instruments issued for the account of the Company or any Subsidiary in
the ordinary course of business supporting obligations of the type set forth in clause (i) above;



(e) judgment liens in respect of judgments that do not constitute an Event of Default under
clause (k) of Article VII;


 


18









 





(f) easements, zoning restrictions, rights-of-way and similar encumbrances on real property
imposed by law or arising in the ordinary course of business that do not secure any monetary
obligations and do not materially detract from the value of the affected property or interfere with
the ordinary conduct of business of the Company or any Subsidiary;



(g) banker’s liens, rights of setoff or similar rights and remedies as to deposit accounts or
other funds maintained with depository institutions; provided that such deposit accounts or
funds are not established or deposited for the purpose of providing collateral for any Indebtedness
and are not subject to restrictions on access by the Company or any Subsidiary in excess of those
required by applicable banking regulations;



(h) Liens arising by virtue of Uniform Commercial Code financing statement filings (or similar
filings under applicable law) regarding operating leases entered into by the Company and the
Subsidiaries in the ordinary course of business;



(i) Liens representing any interest or title of a licensor, lessor or sublicensor or
sublessor, or a licensee, lessee or sublicensee or sublessee, in the property subject to any lease,
license or sublicense or concession agreement permitted by this Agreement; and




(j) Liens that are contractual rights of set-off;



provided that the term “Permitted Encumbrances” shall not include any Lien securing
Indebtedness.




“Permitted Investments” means:



(a) direct obligations of, or obligations the principal of and interest on which are
unconditionally guaranteed by, the United States of America (or by any agency thereof to the extent
such obligations are backed by the full faith and credit of the United States of America), in each
case maturing within 24 months from the date of acquisition thereof;



(b) Indebtedness maturing within 24 months issued by and constituting direct obligations of
any of the following agencies or any other like governmental or government-sponsored agency:
Federal Farm Credit Bank, Federal Intermediate Credit Bank, Federal Financings Bank, Federal Home
Loan Bank System, Federal Home Loan Mortgage Corporation, Federal National Mortgage Association,
Tennessee Valley Authority, Student Loan Marketing Association, Export-Import Bank of the United
States, Farmers Home Administration, Small Business Administration, Inter-American Development
Bank, International Bank for Reconstruction and Development, Federal Land Banks, and Government
National Mortgage Association;



(c) direct and general obligations of any state of the United States of America or any
municipality or political subdivision of such state, including auction rate securities
(“Auctions”), variable demand notes (“VRDNs”) and non rated pre-funded debt, or
obligations of any corporation, maturing (or, in the case of Auctions and VRDNs, having their next
reset date) within 24 months if such obligations, except pre-refunded debt, are rated at least (i)
in the case of Auctions or VRDNs, A2 by Moody’s or A by S&P or (ii) in all other cases, VMIG-1 by
Moody’s or A by S&P;



(d) obligations (including asset-backed obligations) maturing within 24 months of any
corporation, partnership, trust or other entity which are rated at least P1 by Moody’s or A1 by S&P
(short-term rating) or A2 by Moody’s or A by S&P (long-term rating);


 


19









 





(e) investments in commercial paper maturing within 270 days from the date of acquisition
thereof and rated, at such date of acquisition, at least P1 by Moody’s or A1 by S&P, and
investments in master notes that are rated (or that have been issued by an issuer that is rated
with respect to a class of short-term debt obligations, or any security within that class, that is
comparable in priority and security with said master note) at least P1 by Moody’s or A1 by S&P;



(f) investments in certificates of deposit, banker’s acceptances and time deposits maturing
within 180 days from the date of acquisition thereof issued or guaranteed by or placed with, and
money market deposit accounts issued or offered by, any domestic office of any commercial bank
organized under the laws of the United States of America or any State thereof which has a combined
capital and surplus and undivided profits of not less than $500,000,000;



(g) fully collateralized repurchase agreements with a term of not more than 30 days for
securities described in clause (a) above and entered into with a financial institution satisfying
the criteria described in clause (c) above (or subsidiaries or Affiliates of such financial
institutions); and




(h) money market funds.



“Person” means any natural person, corporation, limited liability company, trust,
joint venture, association, company, partnership, Governmental Authority or other entity.



“Plan” means any employee pension benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA,
and in respect of which the Company or any ERISA Affiliate is (or, if such plan were terminated,
would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of
ERISA.



“Prime Rate” means in the case of a Borrowing in US Dollars by the Company, a US
Borrowing Subsidiary or a Canadian Borrowing Subsidiary, the rate of interest per annum publicly
announced from time to time by JPMCB as its prime rate in effect at its principal office in New
York City. Each change in the Prime Rate shall be effective from and including the date such
change is publicly announced as being effective.



“Proceeds” has the meaning specified in Section 9-102 of the Uniform Commercial Code
of the State of New York.



“Quotation Day” means (a) with respect to any currency (other than Sterling) for any
Interest Period, the day two Business Days prior to the first day of such Interest Period and (b)
with respect to Sterling for any Interest Period, the first day of such Interest Period, in each
case unless market practice differs in the Relevant Interbank Market for any currency, in which
case the Quotation Day for such currency shall be determined by the Administrative Agent in
accordance with market practice in the Relevant Interbank Market (and if quotations would normally
be given by leading banks in the Relevant Interbank Market on more than one day, the Quotation Day
shall be the last of those days).



“Reference Banks” means with respect to the LIBO Rate or the EURIBO Rate, the
principal London offices of J.P. Morgan Chase Bank, N.A., Bank of America, N.A. and Wells Fargo
Bank N.A., or such other banks as may be appointed by the Administrative Agent in consultation
with the Company.




“Register” has the meaning set forth in Section 11.04(d).


 


20









 





“Regulation U” means Regulation U of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.



“Regulation X” means Regulation X of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.



“Related Parties” means, with respect to any specified Person, such Person’s
Affiliates and the respective directors, officers, employees, members, trustees, agents and
advisors of such Person and such Person’s Affiliates.



“Relevant Interbank Market” means (a) with respect to any currency (other than Euros),
the London interbank market and (b) with respect to Euros, the European interbank market.



“Required Lenders” means, at any time, Lenders having Revolving Credit Exposures and
unused Commitments representing more than 50% of the sum of the total Revolving Credit Exposures
and unused Commitments at such time.




“Restatement Effective Date” has the meaning set forth in the Amendment Agreement.



“Restricted Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any Equity Interests in the Company or any
Subsidiary, or any payment (whether in cash, securities or other property), including any sinking
fund or similar deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any Equity Interests in the Company or any Subsidiary or any option,
warrant or other right to acquire any such Equity Interests in the Company or any Subsidiary;
provided that no such dividend, distribution or payment shall constitute a “Restricted
Payment” to the extent made solely with common stock of the Company.



“Revolving Credit Exposure” means a Tranche One Revolving Credit Exposure or a Tranche
Two Revolving Credit Exposure.




“Revolving Loan” means a Tranche One Revolving Loan or a Tranche Two Revolving Loan.



“S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill
Companies, Inc., and any successor to its rating agency business.




“Schedule I Lender” means any Lender named on Schedule I to the Bank Act (Canada).



“Schedule I Reference Lenders” means any Schedule I Lender agreed upon by the Company
and the Administrative Agent, acting through its Toronto branch, from time to time.



“Screen Rate” means (a) in respect of the LIBO Rate for any currency for any Interest
Period, the British Bankers Association Interest Settlement Rate for such currency and such
Interest
Period as set forth on the applicable Reuters screen (and if such screen is replaced or such
service ceases to be available, another screen or service displaying the appropriate rate
designated by the Administrative Agent) and (b) in respect of the EURIBO Rate for any Interest
Period, the percentage per annum determined by the Banking Federation of the European Union for
such Interest Period as set forth on the applicable screen of the Reuters Service (and if such
screen is replaced or such service ceases to be available, another screen or service displaying the
appropriate rate designated by the Administrative Agent).


 


21









 





“Securitization” means any transfer by the Company or any Subsidiary of accounts
receivable and Proceeds thereof or interests therein (a) to a trust, partnership, corporation,
limited liability company or other entity, which transfer is funded in whole or in part, directly
or indirectly, by the incurrence or issuance by the transferee or successor transferee of
Indebtedness or other securities that are to receive payments from, or that represent interests in,
the cash flow derived from such accounts receivable or interests therein, or (b) directly to one or
more investors or other purchasers. The “amount” or “principal amount” of any Securitization shall
be deemed at any time to be the aggregate principal or stated amount of the Indebtedness or other
securities referred to in the first sentence of this definition or, if there shall be no such
principal or stated amount, the uncollected amount of the accounts receivable or interests therein
transferred pursuant to such Securitization, net of any such accounts receivables or interests
therein that have been written off as uncollectible.



“Securitization Entity” means Amerisource Receivables Financial Corporation, a
Delaware corporation, and any other wholly owned limited purpose Subsidiary that purchases accounts
receivable of the Company or any Subsidiary pursuant to a Securitization.



“Senior Notes” means the Company’s (a) 55/8% Senior Notes due 2012 in an original
aggregate principal amount of $400,000,000, (b) 57/8% Senior Notes due 2015 in an original aggregate
principal amount of $500,000,000 and (c) 47/8% Senior Notes due 2019 in an original aggregate
principal amount of $400,000,000.



“Significant Subsidiary” means each Subsidiary other than any Subsidiary or
Subsidiaries that individually or in the aggregate did not account for more than 1% of the assets
or revenues of the Company and the Subsidiaries on a consolidated basis at the end of or for the
most recent four fiscal quarter period for which financial statements have been delivered under
Section 5.01(a) or (b).



“Specified Time” means (a) with respect to the LIBO Rate, 11:00 a.m., London time and
(b) with respect to the EURIBO Rate, 11:00 a.m., Frankfurt time.



“Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of
which is the number one and the denominator of which is the number one minus the aggregate of the
maximum reserve percentages (including any marginal, special, emergency or supplemental reserves)
expressed as a decimal established by the Board to which the Administrative Agent is subject for
eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of the
Board). Such reserve percentages shall include those imposed pursuant to such Regulation D. LIBOR
Loans shall be deemed to constitute eurocurrency funding and to be subject to such reserve
requirements without benefit of or credit for proration, exemptions or offsets that may be
available from time to time to any Lender under such Regulation D or any comparable regulation.
The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any
change in any reserve percentage.




“Sterling” or “£” means the lawful currency of the United Kingdom.


 


22









 





“Sterling Overnight Rate” means, on any day, the rate per annum determined by the
London office of the Administrative Agent for overnight deposits in Sterling at approximately 11:00
a.m., London time, on such day by reference to the Reuters “LIBOR01” screen displaying British
Bankers’ Assoc. Interest Settlement Rates; provided, however, that if the
applicable screen shall no longer exist, “Sterling Overnight Rate” shall mean an interest rate per
annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to the rate at which overnight
deposits in Sterling approximately equal in principal amount to such Borrowing are offered to the
principal London office of the Administrative Agent in immediately available funds in the London
interbank market at approximately 11:00 a.m., London time, on such day.




“Subsequent Borrowings” has the meaning set forth in Section 2.09(e).



“subsidiary” means, with respect to any Person (the “parent”) at any date, any
corporation, limited liability company, partnership, association or other entity the accounts of
which would be consolidated with those of the parent in the parent’s consolidated financial
statements if such financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership, association or other entity
(a) of which securities or other ownership interests representing more than 50% of the equity or
more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the
general partnership interests are, as of such date, owned, controlled or held, or (b) that is, as
of such date, otherwise Controlled by the parent or one or more subsidiaries of the parent or by
the parent and one or more subsidiaries of the parent.




“Subsidiary” means any subsidiary of the Company.



“Swingline Exposure” means, at any time, the sum of the Tranche One Swingline Exposure
and the Tranche Two Swingline Exposure at such time.



“Swingline Lender” means JPMCB, or an Affiliate thereof, in its capacity as a lender
of Swingline Loans pursuant to Section 2.04.




“Swingline Loan” means a Tranche One Swingline Loan or a Tranche Two Swingline Loan.




“Syndication Agents” means Bank of America, N.A. and Wells Fargo Bank N.A.



“Synthetic Lease” means a lease of property or assets designed to permit the lessees
(a) to claim depreciation on such property or assets under US tax law and (b) to treat such lease
as an operating lease or not to reflect the leased property or assets on the lessee’s balance sheet
under GAAP.



“Synthetic Lease Obligations” shall mean, with respect to any Synthetic Lease, at any
time, an amount equal to the higher of (a) the aggregate termination value or purchase price or
similar payments in the nature of principal payable thereunder and (b) the then aggregate
outstanding principal amount of the notes or other instruments issued by, and the amount of the
equity investment, if any, in the lessor under such Synthetic Lease.



“Taxes” means any and all present or future taxes, levies, imposts, duties,
deductions, withholdings, assessments, fees or other charges imposed by any Governmental Authority,
including interest, additions to tax or penalties applicable thereto.


 


23









 





“Total Indebtedness” means, as of any date, the sum, without duplication of (a) the
aggregate principal amount of Indebtedness of the Company and the Subsidiaries outstanding as of
such date, in the amount that would be reflected on a balance sheet prepared as of such date on a
consolidated basis in accordance with GAAP (but without giving effect to any election to value any
Indebtedness at “fair value”, as described in Section 1.04(a)), (b) the aggregate of the amounts of
all Securitizations of the Company and the Subsidiaries and (c) the aggregate principal amount of
Indebtedness of the Company and the Subsidiaries outstanding as of such date that is not required
to be reflected on a balance sheet in accordance with GAAP, determined on a consolidated basis.



“Tranche” means a category of Commitments and extensions of credit thereunder. For
purposes hereof, each of the following shall comprise a separate Tranche: (a) the Tranche One
Commitments, the Tranche One Revolving Loans, the B/As, the Tranche One Letters of Credit and the
Tranche One Swingline Loans (“Tranche One”) and (b) the Tranche Two Commitments, the
Tranche Two Revolving Loans, the Tranche Two Letters of Credit and the Tranche Two Swingline Loans
(“Tranche Two”).



“Tranche One” has the meaning set forth in the definition of the term
“Tranche”.



“Tranche One Commitment” means, with respect to each Lender, the commitment, if any,
of such Lender to make Tranche One Revolving Loans pursuant to Section 2.01(a), to accept and
purchase B/As pursuant to Section 2.06 and to acquire participations in Tranche One Swingline Loans
and Tranche One Letters of Credit hereunder, expressed as an amount representing the maximum
aggregate amount of such Lender’s Tranche One Revolving Credit Exposure hereunder, as such
commitment may be reduced or increased from time to time pursuant to Section 2.09 or assignments by
or to such Lender pursuant to Section 11.04. The initial amount of each Lender’s Tranche One
Commitment is set forth on Schedule 2.01 to the Amendment Agreement, or in the Assignment and
Assumption or the Accession Agreement pursuant to which such Lender shall have assumed or acquired
its Tranche One Commitment, as the case may be. The aggregate amount of the Tranche One
Commitments on the Restatement Effective Date is US$505,000,000.



“Tranche One LC Disbursement” means a payment made by an Issuing Bank pursuant
to a Tranche One Letter of Credit.



“Tranche One LC Exposure” means, at any time, (a) the sum of the US Dollar Equivalents
of the undrawn amounts of all outstanding Tranche One Letter of Credits at such time plus (b) the
sum of the US Dollar Equivalents of the amounts of all Tranche One LC Disbursements that have not
yet been reimbursed by or on behalf of the applicable Borrowers at such time. The Tranche One LC
Exposure of any Tranche One Lender at any time shall be its Tranche One Percentage of the total
Tranche One LC Exposure at such time.



“Tranche One Lender” means a Lender with a Tranche One Commitment or a Tranche One
Revolving Credit Exposure.



“Tranche One Lending Office” means, with respect to any Tranche One Lender, the
office(s) of such Lender (or any Affiliate of such Lender) specified as its “Tranche One Lending
Office(s)” on Schedule 2.02 or, as to any Person that becomes a Tranche One Lender after the
Restatement Effective Date, in the Assignment and Assumption or the Accession Agreement
executed by such Person, or such other office(s) of such Lender (or an Affiliate of such Lender) as
such Lender may hereafter designate from time to time as its “Tranche One Lending Office(s)” by
notice to the Company and the Administrative Agent. A Tranche One Lender may designate different
Tranche One Lending Offices for Loans to Borrowers in different jurisdictions.



“Tranche One Letter of Credit” means a Letter of Credit issued under Section 2.05 and
designated as a Tranche One Letter of Credit in the request therefor submitted by the applicable
Borrower.


 


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“Tranche One Percentage” means, with respect to any Tranche One Lender at any time,
the percentage of the aggregate Tranche One Commitments represented by such Tranche One Lender’s
Tranche One Commitment at such time; provided that if the Tranche One Commitments have
expired or been terminated, the Tranche One Percentages shall be determined on the basis of the
Tranche One Commitments most recently in effect, giving effect to any assignments.



“Tranche One Revolving Credit Exposure” means, with respect to any Lender at any time,
the aggregate amount of (a) the sum of the US Dollar Equivalents of such Lender’s outstanding
Tranche One Revolving Loans, (b) the sum of the US Dollar Equivalents at such time of the face
amounts of the B/As accepted by such Lender and outstanding at such time, (c) such Lender’s Tranche
One LC Exposure and (d) such Lender’s Tranche One Swingline Exposure.



“Tranche One Revolving Loans” means Loans made by the Tranche One Lenders pursuant to
Section 2.01(a). Each Tranche One Revolving Loan denominated in US Dollars shall be a LIBOR Loan
or, solely in the case of a Tranche One Revolving Loan denominated in US Dollars and made to the
Company, a US Borrowing Subsidiary or a Canadian Borrowing Subsidiary, an ABR Loan. Each Tranche
One Revolving Loan denominated in Canadian Dollars shall either be a LIBOR Loan or a Canadian Prime
Rate Loan. Each Tranche One Revolving Loan denominated in Sterling or an Alternative Currency
shall be a LIBOR Loan. Each Tranche One Revolving Loan denominated in Euros shall be a EURIBOR
Loan.



“Tranche One Swingline Exposure” means, at any time, the sum of the US Dollar
Equivalents of the outstanding Tranche One Swingline Loans at such time. The Tranche One Swingline
Exposure of any Tranche One Lender at any time shall be its Tranche One Percentage of the total
Tranche One Swingline Exposure at such time.



“Tranche One Swingline Loan” means a Loan made pursuant to Section 2.04 and designated
in the notice delivered by the applicable Borrower pursuant to paragraph (b) of such Section as a
Tranche One Swingline Loan.



“Tranche Percentage” means a Tranche One Percentage or a Tranche Two Percentage, as
the case may be.



“Tranche Two” has the meaning set forth in the definition of the term
“Tranche”.



“Tranche Two Commitment” means, with respect to each Lender, the commitment, if any,
of such Lender to make Tranche Two Revolving Loans pursuant to Section 2.01(b) and to acquire
participations in Tranche Two Swingline Loans and Tranche Two Letters of Credit hereunder,
expressed as an amount representing the maximum aggregate amount of such Lender’s Tranche Two
Revolving Credit Exposure hereunder, as such commitment may be reduced or increased from time to
time pursuant to Section 2.09 or assignments by or to such Tranche Two Lender pursuant to Section
11.04. The initial amount of each Lender’s Tranche Two Commitment is set forth on Schedule
2.01 to the Amendment Agreement or in the Assignment and Assumption or the Accession Agreement
pursuant to which such Lender shall have assumed or acquired its Tranche Two Commitment, as the
case may be. The aggregate amount of the Tranche Two Commitments on the Restatement Effective Date
is US$195,000,000.



“Tranche Two LC Disbursement” means a payment made by an Issuing Bank pursuant
to a Tranche Two Letter of Credit.


 


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“Tranche Two LC Exposure” means, at any time, (a) the sum of the US Dollar Equivalents
of the undrawn amounts of all outstanding Tranche Two Letter of Credits at such time plus (b) the
sum of the US Dollar Equivalents of the amounts of all Tranche Two LC Disbursements that have not
yet been reimbursed by or on behalf of the applicable Borrowers at such time. The Tranche Two LC
Exposure of any Tranche Two Lender at any time shall be its Tranche Two Percentage of the total
Tranche Two LC Exposure at such time.



“Tranche Two Lender” means a Lender with a Tranche Two Commitment or a Tranche Two
Revolving Credit Exposure.



“Tranche Two Lending Office” means, with respect to any Tranche Two Lender, the
office(s) of such Lender (or any Affiliate of such Lender) specified as its “Tranche Two Lending
Office(s)” on Schedule 2.02 or, as to any Person that becomes a Tranche Two Lender after the
Restatement Effective Date, in the Assignment and Assumption or Accession Agreement executed by
such Person, or such other office(s) of such Lender (or an Affiliate of such Lender) as such Lender
may hereafter designate from time to time as its “Tranche Two Lending Office(s)” by notice to the
Company and the Administrative Agent. A Tranche Two Lender may designate different Tranche Two
Lending Offices for Loans to Borrowers in different jurisdictions.



“Tranche Two Letter of Credit” means a Letter of Credit issued under Section 2.05 and
designated as a Tranche Two Letter of Credit in the request therefor submitted by the applicable
Borrower.



“Tranche Two Percentage” means, with respect to any Tranche Two Lender at any time,
the percentage of the aggregate Tranche Two Commitments represented by such Tranche Two Lender’s
Tranche Two Commitment at such time; provided that if the Tranche Two Commitments have
expired or been terminated, the Tranche Two Percentages shall be determined on the basis of the
Tranche Two Commitments most recently in effect, giving effect to any assignments.



“Tranche Two Revolving Credit Exposure” means, with respect to any Tranche Two Lender
at any time, the aggregate amount of (a) the sum of the US Dollar Equivalents of such Tranche Two
Lender’s outstanding Tranche Two Revolving Loans, (b) such Tranche Two Lender’s Tranche Two LC
Exposure and (c) such Tranche Two Lender’s Tranche Two Swingline Exposure.



“Tranche Two Revolving Loans” means Loans made by the Tranche Two Lenders pursuant to
Section 2.01(b). Each Tranche Two Revolving Loan denominated in US Dollars shall be a LIBOR Loan
or, solely in the case of a Tranche Two Revolving Loan denominated in US Dollars and made to the
Company, a US Borrowing Subsidiary or a Canadian Borrowing Subsidiary, an ABR Loan. Each Tranche
Two Revolving Loan denominated in Canadian Dollars, Sterling or an Alternative Currency shall be a
LIBOR Loan. Each Tranche Two Revolving Loan denominated in Euros shall be a EURIBOR Loan.



“Tranche Two Swingline Exposure” means, at any time, the sum of the US Dollar
Equivalents of the outstanding Tranche Two Swingline Loans at such time. The Tranche Two Swingline
Exposure of any Tranche Two Lender at any time shall be its Tranche Two Percentage of the total
Tranche Two Swingline Exposure at such time.



“Tranche Two Swingline Loan” means a Loan made pursuant to Section 2.04 and designated
in the notice delivered by the applicable Borrower pursuant to paragraph (b) of such Section as a
Tranche Two Swingline Loan.


 


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“Transactions” means the execution, delivery and performance by each Loan Party of the
Loan Documents to which it is to be a party, the making of Loans, the acceptance and purchase of
B/As, the use of the proceeds thereof, the issuance of the Letters of Credit, the creation of the
Guarantees provided for herein and in the other Loan Documents and the other transactions
contemplated hereby.



“Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the
Adjusted LIBO Rate, the Adjusted EURIBO Rate, the Alternate Base Rate or the Canadian Prime Rate.




“UK Borrowing Subsidiary” means any Borrowing Subsidiary that is a UK Subsidiary.



“UK Subsidiary” means any Subsidiary that is incorporated or otherwise
organized under the laws of the United Kingdom or any political subdivision thereof.




“US Borrowing Subsidiary” means any Borrowing Subsidiary that is a US Subsidiary.



“US Dollar Equivalent” means, on any date of determination, (a) with respect to any
amount in US Dollars, such amount and (b) with respect to any amount in any currency other than US
Dollars, the equivalent in US Dollars of such amount, determined by the Administrative Agent
pursuant to Section 1.05 using the Exchange Rate with respect to such currency at the time in
effect for such amount under the provisions of such Section.



“US Dollars” or “US$” means the lawful currency of the United States of
America.



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



“USA PATRIOT Act” means the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001.



“wholly owned” means, as to any Subsidiary, that all the Equity Interests in such
Subsidiary (other than directors’ qualifying shares and other nominal amounts of Equity Interests
that are required to be held by other Persons under applicable law) are owned, directly or
indirectly, by the Company.



“Withdrawal Liability” means liability to a Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.



SECTION 1.02. Classification of Loans and Borrowings. For purposes of this
Agreement, Loans may be classified and referred to by Class (e.g., a “Tranche One Revolving
Loan”) or by Type (e.g., a “LIBOR Revolving Loan”) or by Class and Type (e.g., a
“Tranche One LIBOR Revolving Loan”). Borrowings also may be classified and referred to by Class
(e.g., a “Tranche One Revolving Borrowing”) or by Type (e.g., a “LIBOR Revolving
Borrowing”) or by Class and Type (e.g., a “Tranche One LIBOR Revolving Borrowing”).


 


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SECTION 1.03. Terms Generally. The definitions of terms herein shall apply equally
to the singular and plural forms of the terms defined. Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The
word “law” shall be construed as referring to all statutes, rules, regulations, codes and other
laws (including official rulings and interpretations thereunder having the force of law or with
which affected Persons customarily comply), and all judgments, orders, writs and decrees, of all
Governmental Authorities. The word “will” shall be construed to have the same meaning and effect
as the word “shall”. Unless the context requires otherwise (a) any definition of or reference to
any agreement (including any Loan Document), instrument or other document herein shall be construed
as referring to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or
modifications set forth herein), (b) any definition of or reference to any statute, regulation or
other law herein shall be construed (i) as referring to such statute, regulation or other law as
from time to time amended, supplemented or otherwise modified (including by succession of
comparable successor statutes, regulations or other laws) and (ii) to include all official rulings
and interpretations thereunder having the force of law or with which affected Persons customarily
comply, (c) any reference herein to any Person shall be construed to include such Person’s
successors and assigns (subject to any restrictions on assignment set forth herein) and, in the
case of any Governmental Authority, any other Governmental Authority that shall have succeeded to
any or all functions thereof, (d) the words “herein”, “hereof” and “hereunder”, and words of
similar import, shall be construed to refer to this Agreement in its entirety and not to any
particular provision hereof, (e) all references herein to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (f) the words “asset” and “property” shall be construed to have the same meaning
and effect and to refer to any and all tangible and intangible assets and properties, including
cash, securities, accounts and contract rights.



SECTION 1.04. Accounting Terms; GAAP; Pro Forma Computations. (a) Except as
otherwise expressly provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided that (i) if the
Company notifies the Administrative Agent that the Company requests an amendment to any provision
hereof to eliminate the effect of any change occurring after the Closing Date in GAAP or in the
application thereof on the operation of such provision (or if the Administrative Agent notifies the
Company that the Required Lenders request an amendment to any provision hereof for such purpose),
regardless of whether any such notice is given before or after such change in GAAP or in the
application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and
applied immediately before such change shall have become effective until such notice shall have
been withdrawn or such provision amended in accordance herewith and (ii) notwithstanding any other
provision contained herein, all terms of an accounting or financial nature used herein shall be
construed, and all computations of amounts and ratios referred to herein shall be made, without
giving effect to any election under Statement of Financial Accounting Standards 159, The Fair Value
Option for Financial Assets and Financial Liabilities, or any successor thereto (including pursuant
to the Accounting
Standards Codification), to value any Indebtedness of the Company or any Subsidiary at “fair
value”, as defined therein.



(b) All pro forma computations required to be made hereunder giving effect to
any acquisition, investment, sale, disposition, merger, amalgamation or similar event shall reflect
on a pro forma basis such event as if it occurred on the first day of the relevant
period and, to the extent applicable, the historical earnings and cash flows associated with the
assets acquired or disposed of for such relevant period and any related incurrence or reduction of
Indebtedness for such relevant period, but shall not take into account any projected synergies or
similar benefits expected to be realized as a result of such event other than cost savings
permitted to be included in reports filed with the Securities and Exchange Commission under
Regulation S-X.


 


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SECTION 1.05. Currency Translation. The Administrative Agent shall determine the US
Dollar Equivalent of any Borrowing denominated in a currency other than US Dollars, other than a
Canadian Prime Rate Borrowing or Swingline Loan denominated in Canadian Dollars or Sterling, as of
the date of the commencement of the initial Interest Period therefor and as of the date of the
commencement of each subsequent Interest Period therefor, in each case using the Exchange Rate for
such currency in relation to US Dollars in effect on the date that is two Business Days prior to
the date on which the applicable Interest Period shall commence, and each such amount shall, except
as provided in the last two sentences of this Section, be the US Dollar Equivalent of such
Borrowing until the next required calculation thereof pursuant to this sentence. The
Administrative Agent shall determine the US Dollar Equivalent of any Letter of Credit denominated
in a currency other than US Dollars as of the date such Letter of Credit is issued, amended to
increase its face amount, extended or renewed and as of the last Business Day of each subsequent
calendar quarter, in each case using the Exchange Rate for such currency in relation to US Dollars
in effect on the date that is two Business Days prior to the date on which such Letter of Credit is
issued, amended to increase its face amount, extended or renewed and as of the last Business Day of
such subsequent calendar quarter, as the case may be, and each such amount shall, except as
provided in the last two sentences of this Section, be the US Dollar Equivalent of such Letter of
Credit until the next required calculation thereof pursuant to this sentence. The Administrative
Agent shall determine the US Dollar Equivalent of any Canadian Prime Rate Borrowing, Swingline Loan
denominated in Canadian Dollars or Sterling or B/A as of the date on which such Loan is made or
such B/A is accepted and purchased and as of the last Business Day of each subsequent calendar
quarter, in each case using the Exchange Rate for the applicable currency in relation to US Dollars
in effect on the last Business Day of the calendar quarter preceding the date of such Borrowing or
acceptance and purchase (or, if such Borrowing or acceptance and purchase occurs on the last
Business Day of a calendar quarter, on such Business Day) and as of the last Business Day of such
subsequent calendar quarter, as the case may be, and each such amount shall, except as provided in
the last two sentences of this Section, be the US Dollar Equivalent of such Canadian Prime Rate
Borrowing or B/A until the next required calculation thereof pursuant to this sentence. The
Administrative Agent shall notify the Company and the Lenders of each calculation of the US Dollar
Equivalent of each Borrowing, B/A or Letter of Credit. Notwithstanding the foregoing, for purposes
of any determination of the CAM Percentages, any determination under Article V, Article VI (other
than Section 6.11) or Article VII or any determination under any other provision of this Agreement
expressly requiring the use of a current exchange rate, all amounts incurred, outstanding or
proposed to be incurred or outstanding in currencies other than US Dollars shall be translated into
US Dollars at currency exchange rates in effect on the date of such determination. For purposes of
Section 6.11, amounts in currencies other than US Dollars shall be translated into US Dollars at
the currency exchange rates most recently used in preparing the Company’s annual and quarterly
financial statements.



ARTICLE II




The Credits 




SECTION 2.01. Commitments. (a) Tranche One Commitments. Subject to the
terms and conditions set forth herein, each Tranche One Lender agrees (i) to make Tranche One
Revolving Loans denominated in US Dollars, Sterling, Euro or Designated Currencies to the
Borrowers, (ii) to make Tranche One Revolving Loans denominated in Canadian Dollars to the
Borrowers that are Canadian Subsidiaries and (iii) to accept and purchase drafts drawn by Borrowers
that are Canadian Subsidiaries in Canadian Dollars as B/As, in each case from time to time during
the
Availability Period in an aggregate principal or face amount at any time outstanding that will
not result in (A) the aggregate Tranche One Revolving Credit Exposures exceeding the aggregate
Tranche One Commitments or (B) the Tranche One Revolving Credit Exposure of any Lender exceeding
its Tranche One Commitment. Within the foregoing limits and subject to the terms and conditions
set forth herein, the Borrowers may borrow, prepay and reborrow Tranche One Revolving Loans and
sell and pay drafts drawn as B/As.



 


29









 







(b) Tranche Two Commitments. Subject to the terms and conditions set forth herein,
each Tranche Two Lender agrees (i) to make Tranche Two Revolving Loans denominated in US Dollars,
Sterling, Euro or Designated Currencies to the Borrowers and (ii) to make Tranche Two Revolving
Loans denominated in Canadian Dollars to the Borrowers that are Canadian Subsidiaries, in each case
from time to time during the Availability Period in an aggregate principal amount at any time
outstanding that will not result in (A) the aggregate Tranche Two Revolving Credit Exposures
exceeding the aggregate Tranche Two Commitments or (B) the Tranche Two Revolving Credit Exposure of
any Lender exceeding its Tranche Two Commitment. Within the foregoing limits and subject to the
terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Tranche Two
Revolving Loans.



SECTION 2.02. Loans and Borrowings. (a) Each Tranche One Revolving Loan shall be
made as part of a Tranche One Revolving Borrowing consisting of Tranche One Revolving Loans of the
same Type and currency made by the Tranche One Lenders ratably in accordance with their respective
Tranche One Commitments. Each Tranche Two Revolving Loan shall be made as part of a Tranche Two
Revolving Borrowing consisting of Tranche Two Revolving Loans of the same Type and currency made by
the Tranche Two Lenders ratably in accordance with their respective Tranche Two Commitments. The
failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender
of its obligations hereunder; provided that the Commitments of the Lenders are several and
no Lender shall be responsible for any other Lender’s failure to make Loans as required.



(b) Subject to Section 2.14, (i) each Revolving Borrowing denominated in US Dollars shall be
comprised entirely of (A) LIBOR Loans or (B) solely in the case of any such Borrowing by the
Company, a US Borrowing Subsidiary or a Canadian Borrowing Subsidiary, ABR Loans, (ii) each Tranche
One Revolving Borrowing denominated in Canadian Dollars shall be comprised entirely of either LIBOR
Loans or Canadian Prime Rate Loans, (iii) each Tranche Two Revolving Borrowing denominated in
Canadian Dollars shall be comprised entirely of LIBOR Loans, (iv) each Revolving Borrowing
denominated in Sterling or any Alternative Currency shall be comprised entirely of LIBOR Loans and
(v) each Revolving Borrowing denominated in Euros shall be comprised entirely of EURIBOR Loans.
Each Swingline Loan denominated in US Dollars shall be an ABR Loan, each Swingline Loan denominated
in Canadian Dollars shall be a Canadian Prime Rate Loan, each Swingline Loan denominated in
Sterling shall be a Sterling Overnight Rate Loan and each
Swingline Loan denominated in Euro shall be a Euro Overnight Rate Loan. Each Lender at its
option may make any Loan, accept and purchase any B/A or issue any Letter of Credit by causing any
domestic or foreign branch or Affiliate of such Lender to make such Loan, accept and purchase such
B/A or issue such Letter of Credit; provided that any exercise of such option shall not
affect the obligation of the applicable Borrower to repay such Loan in accordance with the terms of
this Agreement.


 


30









 





(c) At the commencement of each Interest Period for any LIBOR Revolving Borrowing or EURIBOR
Revolving Borrowing, such Borrowing shall be in an aggregate amount that is an integral multiple of
the Borrowing Multiple and not less than the Borrowing Minimum. At the time that each ABR
Revolving Borrowing is made, such Borrowing shall be in an aggregate amount that is an integral
multiple of US$100,000 and not less than US$1,000,000; provided that an ABR Revolving
Borrowing under any Tranche may be in an aggregate amount that is equal to the entire unused
balance of the Commitments under such Tranche or, in the case of a Tranche One Borrowing or Tranche
Two Borrowing, that is required to finance the reimbursement of an LC Disbursement as contemplated
by Section 2.05(e). At the time that each Canadian Prime Rate Revolving Borrowing is made, such
Borrowing shall be in an aggregate amount that is an integral multiple of Cdn.$100,000 and not less
than Cdn.$500,000; provided that a Canadian Prime Rate Revolving Borrowing may be in an
aggregate amount that is equal to the entire unused balance of the Tranche One Commitments or that
is required to finance the reimbursement of an LC Disbursement as contemplated by Section 2.05(e).
Each Swingline Loan denominated in US Dollars shall be in an amount that is an integral multiple of
US$100,000 and not less than US$500,000. Each Swingline Loan denominated in Canadian Dollars shall
be in an amount that is an integral multiple of Cdn.$100,000 and not less than Cdn.$500,000. Each
Swingline Loan denominated in Sterling shall be in an amount that is in an integral multiple of
£100,000 and not less that £500,000. Each Swingline Loan denominated in Euro shall be in an amount
that is in an integral multiple of €100,000 and not less that €500,000. Borrowings of more than
one Type may be outstanding at the same time; provided that there shall not at any time be
more than a total of 15 LIBOR Revolving Borrowings and EURIBOR Revolving Borrowings outstanding.



(d) Notwithstanding any other provision of this Agreement, no Borrower shall be entitled to
request, or to elect to convert or continue, any Borrowing if the Interest Period requested with
respect thereto would end after the Maturity Date.



SECTION 2.03. Requests for Borrowings. To request a Borrowing, the applicable
Borrower shall notify the Administrative Agent by telephone confirmed promptly by hand delivery or
fax to the Administrative Agent of a written Borrowing Request in the form of Exhibit C or any
other form approved by the Administrative Agent and signed by a Financial Officer of the Company
(a) in the case of a LIBOR Borrowing or a EURIBOR Borrowing, not later than 12:00 noon, Local Time,
three Business Days before the date of the proposed Borrowing and (b) in the case of an ABR
Borrowing or a Canadian Prime Rate Borrowing (in each case, other than a Swingline Loan), not later
than 12:00 noon, Local Time, on the date of the proposed Borrowing. Each such telephonic and
written Borrowing Request shall specify the following information in compliance with Section 2.02:




(i) the Borrower requesting such Borrowing;




(ii) the Tranche under which such Borrowing is to be made;




(iii) the currency and the principal amount of such Borrowing;




(iv) the date of such Borrowing, which shall be a Business Day;




(v) the Type of such Borrowing;




(vi) in the case of a LIBOR Borrowing or a EURIBOR Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by the definition of
the term “Interest Period”;




(vii) the Applicable Funding Account or, in the case of any ABR Revolving Borrowing
or Canadian Prime Rate Revolving Borrowing requested to finance the reimbursement of an LC
Disbursement as provided in Section 2.05(e), the identity of the Issuing Bank that made
such LC Disbursement; and


 


31









 






(viii) in the case of a Borrowing by a Borrowing Subsidiary that is not a US
Borrowing Subsidiary, a UK Borrowing Subsidiary or a Canadian Borrowing Subsidiary, the
jurisdiction from which payments of the principal and interest on such Borrowing will be
made.



Any Borrowing Request that shall fail to specify any of the information required by the preceding
provisions of this paragraph may be rejected by the Administrative Agent if such failure is not
corrected promptly after the Administrative Agent shall give written or telephonic notice thereof
to the applicable Borrower and, if so rejected, will be of no force or effect. Promptly following
receipt of a Borrowing Request in accordance with this Section, the Administrative Agent shall
advise each Lender that will make a Loan as part of the requested Borrowing of the details thereof
and of the amount of such Lender’s Loan to be made as part of the requested Borrowing.



SECTION 2.04. Swingline Loans. (a) Subject to the terms and conditions set forth
herein, the Swingline Lender agrees to make (i) Tranche One Swingline Loans and Tranche Two
Swingline Loans (A) to the Company, any US Borrowing Subsidiary or any Canadian Borrowing
Subsidiary denominated in US Dollars, (B) to any UK Borrowing Subsidiary denominated in Sterling or
(C) to any Borrower that is not a US Borrowing Subsidiary in Euro and (ii) Tranche One Swingline
Loans to any Canadian Borrowing Subsidiary denominated in Canadian Dollars, from time to time
during the Availability Period, in an aggregate principal amount at any time outstanding that will
not result in (i) the aggregate principal amount of the Swingline Loans denominated in US Dollars
exceeding US$50,000,000, (ii) the aggregate principal amount of the Swingline Loans denominated in
Canadian Dollars exceeding Cdn.$100,000,000, (iii) the aggregate principal amount of the Swingline
Loans denominated in Sterling exceeding £10,000,000, (iv) the aggregate principal amount of the
Swingline Loans denominated in Euro exceeding €10,000,000, (v) the aggregate Tranche One Revolving
Credit Exposures exceeding the aggregate Tranche One Commitments, (vi) the Tranche One Revolving
Credit Exposure of any Lender exceeding its Tranche One Commitment, (vii) the aggregate Tranche Two
Revolving Credit Exposures exceeding the aggregate Tranche Two Commitments or (viii) the Tranche
Two Revolving Credit Exposure of any Lender exceeding its Tranche Two Commitment; provided
that the Swingline Lender shall not be required to make a Swingline Loan to refinance an
outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions
set forth herein, the Company and such Borrowing Subsidiaries may borrow, prepay and reborrow
Swingline Loans.



(b) To request a Swingline Loan, the applicable Borrower shall notify the Administrative
Agent and the Swingline Lender of such request by telephone (confirmed by fax signed by a Financial
Officer on behalf of the applicable Borrower), not later than 1:00 p.m., Local
Time, on the day of such proposed Swingline Loan. Each such notice shall be irrevocable and
shall specify the requested date (which shall be a Business Day) and amount of the requested
Swingline Loan and whether such Swingline Loan is to be a Tranche One Swingline Loan or a Tranche
Two Swingline Loan. The Swingline Lender shall make each Swingline Loan available to the
applicable Borrower by means of a credit to the Applicable Funding Account (or, in the case of a
Swingline Loan specified in the notice therefor to be made to finance the reimbursement of an LC
Disbursement as provided in Section 2.05(e), by remittance to the applicable Issuing Bank
identified in such notice) by 3:00 p.m., Local Time, on the requested date of such Swingline Loan.


 


32









 





(c) The Swingline Lender may, by written notice given to the Administrative Agent not later
than 10:00 a.m., New York City time, on any Business Day, require (i) the Tranche One Lenders to
acquire participations on such Business Day in all or a portion of the Tranche One Swingline Loans
of the Swingline Lender outstanding and (ii) the Tranche Two Lenders to acquire participations on
such Business Day in all or a portion of the Tranche Two Swingline Loans of the Swingline Lender
outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which the
Tranche One Lenders or the Tranche Two Lenders, as applicable, will participate. Promptly upon
receipt of such notice, the Administrative Agent will give notice thereof to each Tranche One
Lender or Tranche Two Lender, as the case may be, specifying in such notice such Lender’s Tranche
One Percentage or Tranche Two Percentage, as applicable, of such Swingline Loan or Loans. Each
Tranche One Lender or Tranche Two Lender hereby absolutely and unconditionally agrees, upon receipt
of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline
Lender, such Lender’s Tranche One Percentage or Tranche Two Percentage, as applicable, of such
Swingline Loan or Loans. Each Tranche One Lender and Tranche Two Lender acknowledges and agrees
that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is
absolute and unconditional and shall not be affected by any circumstance whatsoever, including the
occurrence and continuance of a Default or reduction or termination of the Tranche One Commitments
or the Tranche Two Commitments and that each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever. Each Tranche One Lender and Tranche Two Lender
shall comply with its obligations under this paragraph by wire transfer of immediately available
funds, in the same manner as provided in Section 2.07 with respect to Loans made by such Lender
(and Section 2.07 shall apply, mutatis mutandis, to the payment obligations of the
Tranche One Lenders and Tranche Two Lenders), and the Administrative Agent shall promptly pay to
the Swingline Lender the amounts so received by it from the Tranche One Lenders or the Tranche Two
Lender, as applicable. The Administrative Agent shall notify the Company of any participations in
any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such
Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any
amounts received by the Swingline Lender from or on behalf of the applicable Borrower in respect of
a Swingline Loan after receipt by such Swingline Lender of the proceeds of a sale of participations
therein shall be promptly remitted to the Administrative Agent; any such amounts received by the
Administrative Agent shall be promptly remitted by the Administrative Agent to the Tranche One
Lenders or the Tranche Two Lenders that shall have made their payments pursuant to this paragraph
and to the Swingline Lender, as their interests may appear; provided that any such payment
so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as the case may
be, if and to the extent such payment is required to be refunded to a Loan Party for any reason.
The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve any
Borrower of any default in the payment thereof.



SECTION 2.05. Letters of Credit. (a) General. Subject to the terms and
conditions set forth herein, any Borrower may request any Issuing Bank to issue (or to amend, renew
or extend) (i) Tranche One Letters of Credit denominated in US Dollars, Sterling, Euro, any
Alternative Currency
available under the Tranche One or, in the case of a Borrower that is a Canadian Subsidiary,
Canadian Dollars and (ii) Tranche Two Letters of Credit denominated in US Dollars, Sterling, Euro
or any Alternative Currency available under the Tranche Two, in each case for its own account, in a
form reasonably acceptable to the Administrative Agent and the applicable Issuing Bank, at any time
and from time to time during the Availability Period; provided that any Issuing Bank, other
than JPMCB, will not be required to issue Letters of Credit denominated in any currency not set
forth in such Issuing Bank’s Issuing Bank Agreement and no Issuing Bank will be required to issue
Letters of Credit denominated in any currency that has been designated as available under any
Tranche unless such Issuing Bank shall have consented to such designation. In the event of any
inconsistency between the terms and conditions of this Agreement and the terms and conditions of
any form of letter of credit application or other agreement submitted by a Borrower to, or entered
into by a Borrower with, an Issuing Bank relating to any Letter of Credit, the terms and conditions
of this Agreement shall control. From and after the Effective Date, each Existing Letter of Credit
shall be deemed to be a Tranche One Letter of Credit or a Tranche Two Letter of Credit (as
indicated on Schedule 2.05) for all purposes hereof and shall be deemed to have been issued
hereunder on the Effective Date.


 


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(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. To
request the issuance of a Letter of Credit (or the amendment, renewal or extension of an
outstanding Letter of Credit, other than an automatic renewal permitted pursuant to paragraph (c)
of this Section)), a Borrower shall deliver (or transmit by electronic communication, if
arrangements for doing so have been approved by the applicable Issuing Bank) to an Issuing Bank and
the Administrative Agent, reasonably in advance of the requested date of issuance, amendment,
renewal or extension, a notice requesting the issuance of a Letter of Credit, or identifying the
Letter of Credit to be amended, renewed or extended, and specifying the date of issuance,
amendment, renewal or extension (which shall be a Business Day), the date on which such Letter of
Credit is to expire (which shall comply with paragraph (c) of this Section), the amount and
currency of such Letter of Credit, the name and address of the beneficiary thereof, whether such
Letter of Credit is to be a Tranche One Letter of Credit or a Tranche Two Letter of Credit and such
other information as shall be necessary to enable the applicable Issuing Bank to prepare, amend,
renew or extend such Letter of Credit. If requested by the applicable Issuing Bank, the Borrower
also shall submit a letter of credit application on such Issuing Bank’s standard form in connection
with any request for a Letter of Credit. A Letter of Credit shall be issued, amended, renewed or
extended only if (and upon issuance, amendment, renewal or extension of each Letter of Credit the
Company shall be deemed to represent and warrant that), after giving effect to such issuance,
amendment, renewal or extension (i) the LC Exposure shall not exceed US$150,000,000, (ii) the
amount of the LC Exposure attributable to Letters of Credit issued by the applicable Issuing Bank
will not exceed the LC Commitment of such Issuing Bank, (iii) the aggregate Tranche One Revolving
Credit Exposures shall not exceed the aggregate Tranche One Commitments, (iv) the Tranche One
Revolving Credit Exposure of any Lender will not exceed its Tranche One Commitment, (v) the
aggregate Tranche Two Revolving Credit Exposures shall not exceed the aggregate Tranche Two
Commitments and (vi) the Tranche Two Revolving Credit Exposure of any Lender will not exceed its
Tranche Two Commitment. If the Required Lenders notify any Issuing Bank that a Default exists and
instruct such Issuing Bank to suspend the issuance, amendment, renewal or extension of Letters of
Credit, such Issuing Bank shall not issue, amend, renew (except pursuant to automatic renewal
provisions if such Issuing Bank shall no longer be entitled to elect not to renew) or extend any
Letter of Credit without the consent of the Required Lenders until such notice is withdrawn by the
Required Lenders (and each Lender that shall have delivered such a notice agrees promptly to
withdraw it at such time as it determines that no Default exists), it being understood and agreed
that in the absence of any such notice, each Issuing Bank may rely (and shall incur no liability in
relying) on the representation and warranty of the Company deemed made pursuant to Section 4.02).



(c) Expiration Date. Each Letter of Credit shall expire at or prior to the close of
business on the earlier of (i) the date one year after the date of the issuance of such Letter of
Credit (or, in the case of any renewal or extension thereof, one year after such renewal or
extension) and (ii) the date that is five Business Days prior to the Maturity Date. A Letter of
Credit may provide for automatic renewals for additional periods of up to one year subject to a
right on the part of the applicable Issuing Bank to prevent any such renewal from occurring by
giving notice to the beneficiary during a specified period in advance of any such renewal, and the
failure of such Issuing Bank to give such notice by the end of such period shall for all purposes
hereof be deemed an extension of such Letter of Credit; provided that in no event shall any
Letter of Credit, as extended from time to time, expire after the date that is five Business Days
prior to the Maturity Date.


 


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(d) Participations. By the issuance of a Letter of Credit (or an amendment to a
Letter of Credit increasing the amount thereof) and without any further action on the part of the
applicable Issuing Bank or the Lenders, the applicable Issuing Bank hereby grants to each Tranche
One Lender or Tranche Two Lender, as applicable, and each Tranche One Lender or Tranche Two Lender,
as applicable, hereby acquires from such Issuing Bank, a participation in such Letter of Credit
equal to such Lender’s Tranche One Percentage or Tranche Two Percentage, as applicable, from time
to time of the aggregate amount available to be drawn under such Letter of Credit. In
consideration and in furtherance of the foregoing, each Tranche One Lender or Tranche Two Lender,
as applicable, hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for
the account of such Issuing Bank, in the currency of the applicable Letter of Credit, such Lender’s
Tranche One Percentage or Tranche Two Percentage, as applicable, of each LC Disbursement made by
such Issuing Bank and not reimbursed by the applicable Borrower on the date due as provided in
paragraph (e) of this Section, or of any reimbursement payment required to be refunded to the
applicable Borrower for any reason. Each Lender acknowledges and agrees that its obligation to
acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and
unconditional and shall not be affected by any circumstance whatsoever, including any amendment,
renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or
reduction or termination of the Tranche One Commitments or Tranche Two Commitments, and that each
such payment shall be made without any offset, abatement, withholding or reduction whatsoever.



(e) Reimbursement. If an Issuing Bank shall make any LC Disbursement in respect of a
Letter of Credit, the applicable Borrower shall reimburse such LC Disbursement by paying to the
Administrative Agent an amount equal to such LC Disbursement, in the currency of such LC
Disbursement, not later than 2:00 p.m., New York City time, on the Business Day immediately
following the day that the Borrower receives notice of such LC Disbursement; provided that,
in the case of an LC Disbursement in US Dollars or Canadian Dollars, the Borrower may, subject to
the conditions to borrowing set forth herein, request in accordance with Section 2.03 or 2.04 that
such payment be financed with an ABR Borrowing or a Canadian Prime Rate Borrowing under Section
2.01 or 2.04, as applicable, in an equivalent amount and, to the extent so financed, the Borrower’s
obligation to make such payment shall be discharged and replaced by the resulting ABR Borrowing or
Canadian Prime Rate Borrowing. If such Borrower fails to make such payment when due, the
applicable Issuing Bank shall notify the Administrative Agent thereof, and the Administrative Agent
shall in turn notify each Tranche One Lender or Tranche Two Lender, as applicable, of the
applicable LC Disbursement, the amount and currency of the payment then due from such Borrower in
respect thereof and such Lender’s Tranche One Percentage or Tranche Two Percentage thereof.
Promptly following receipt of such notice, each applicable Lender shall pay to the Administrative
Agent its Tranche One Percentage or Tranche Two Percentage, as applicable, of the payment then due
from the Borrower, in the same manner as provided in Section 2.07 with respect to Loans made by
such Tranche One Lender or Tranche Two Lender, as applicable (and Section 2.07 shall apply,
mutatis
mutandis, to the payment obligations of the applicable Lenders), and the
Administrative Agent shall promptly pay to such Issuing Bank the amounts so received by it from the
Tranche One Lenders or Tranche Two Lenders, as applicable. Promptly following receipt by the
Administrative Agent of any payment from the Borrower pursuant to this paragraph, the
Administrative Agent shall distribute such payment to such Issuing Bank or, to the extent that
Tranche One Lenders or Tranche Two Lenders have made payments pursuant to this paragraph to
reimburse such Issuing Bank, then to such Tranche One Lenders or Tranche Two Lenders and such
Issuing Bank, as their interests may appear. Any payment made by a Lender pursuant to this
paragraph to reimburse such Issuing Bank for any LC Disbursement (other than the funding of ABR
Loans or Canadian Prime Rate Loans as contemplated above) shall not constitute a Loan and shall not
relieve the applicable Borrower of its obligation to reimburse such LC Disbursement.


 


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(f) Obligations Absolute. Each Borrower’s obligation to reimburse LC Disbursements
as provided in paragraph (e) of this Section shall be absolute, unconditional and irrevocable, and
shall be performed strictly in accordance with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any
Letter of Credit or this Agreement or any term or provision therein, (ii) any draft or other
document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any
respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the
applicable Issuing Bank under a Letter of Credit against presentation of a draft or other document
that does not strictly comply with the terms of such Letter of Credit or (iv) any other event or
circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the
provisions of this Section, constitute a legal or equitable discharge of, or provide a right of
setoff against, the applicable Borrower’s obligations hereunder. None of the Administrative Agent,
the Lenders, any Issuing Bank or any of their Related Parties shall have any liability or
responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit
or any payment or failure to make any payment thereunder (irrespective of any of the circumstances
referred to in the preceding sentence), or any error, omission, interruption, loss or delay in
transmission or delivery of any draft, notice or other communication under or relating to any
Letter of Credit (including any document required to make a drawing thereunder), any error in
interpretation of technical terms or any consequence arising from causes beyond the control of such
Issuing Bank; provided that nothing in this Section shall be construed to excuse an Issuing
Bank from liability to the applicable Borrower to the extent of any direct damages (as opposed to
special, indirect, consequential or punitive damages, claims in respect of which are hereby waived
by each Borrower to the extent permitted by applicable law) suffered by such Borrower that are
caused by such Issuing Bank’s failure to exercise care when determining whether drafts and other
documents presented under a Letter of Credit comply with the terms thereof. The parties hereto
expressly agree that, in the absence of gross negligence or willful misconduct on the part of an
Issuing Bank (such absence to be presumed unless otherwise determined by a final non-appealable
judgment of a court of competent jurisdiction), such Issuing Bank shall be deemed to have exercised
care in each such determination. In furtherance of the foregoing and without limiting the
generality thereof, the parties agree that, with respect to documents presented which appear on
their face to be in substantial compliance with the terms of a Letter of Credit, an Issuing Bank
may, in its sole discretion, either accept and make payment upon such documents without
responsibility for further investigation, regardless of any notice or information to the contrary,
or refuse to accept and make payment upon such documents if such documents are not in strict
compliance with the terms of such Letter of Credit.



(g) Disbursement Procedures. The applicable Issuing Bank shall, promptly following
its receipt thereof, examine all documents purporting to represent a demand for payment under a
Letter of Credit. Such Issuing Bank shall promptly notify the Administrative Agent and the
applicable
Borrower by telephone (confirmed by fax) of such demand for payment and whether such Issuing
Bank has made or will make an LC Disbursement thereunder; provided that any failure to give
or delay in giving such notice shall not relieve the applicable Borrower of its obligation to
reimburse such Issuing Bank and the Lenders with respect to any such LC Disbursement.


 


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(h) Interim Interest. If an Issuing Bank shall make any LC Disbursement, then,
unless the applicable Borrower shall reimburse such LC Disbursement in full on the date such LC
Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and
including the date such LC Disbursement is made to but excluding the date that such Borrower
reimburses such LC Disbursement at (i) in the case of any LC Disbursement denominated in US
Dollars, the rate per annum then applicable to ABR Revolving Loans denominated in US Dollars and
made to the Company, (ii) in the case of any LC Disbursement denominated in Canadian Dollars, the
Canadian Prime Rate and (iii) in the case of an LC Disbursement denominated in any other currency,
a rate per annum determined by the applicable Issuing Bank (which determination will be conclusive
absent manifest error) to represent its cost of funds plus the Applicable Rate used to
determine interest applicable to LIBOR or EURIBOR Revolving Loans; provided that, if such
Borrower fails to reimburse such LC Disbursement when due pursuant to paragraph (e) of this
Section, then Section 2.13(f) shall apply. Interest accrued pursuant to this paragraph shall be
for the account of the applicable Issuing Bank, except that interest accrued on and after the date
of payment by any Lender pursuant to paragraph (e) of this Section to reimburse such Issuing Bank
shall be for the account of such Lender to the extent of such payment, and shall be payable on
demand or, if no demand has been made, on the date on which the applicable Borrower reimburses the
applicable LC Disbursement in full.



(i) Cash Collateralization. If any Event of Default shall occur and be continuing,
on the Business Day that the Company receives notice from the Administrative Agent or the Required
Lenders (or, if the maturity of the Loans has been accelerated, Lenders with LC Exposures
representing more than 50% of the aggregate amount of the LC Exposures) demanding the deposit of
cash collateral pursuant to this paragraph, each applicable Borrower shall deposit (“Cash
Collateralize”) in respect of each outstanding Letter of Credit issued for such Borrower’s
account, in an account with the Administrative Agent, in the name of the Administrative Agent and
for the benefit of the Lenders, as applicable, and the applicable Issuing Bank, an amount in cash
and in the currency of such Letter of Credit equal to the portion of the LC Exposure attributable
to such Letter of Credit as of such date plus any accrued and unpaid interest thereon;
provided that the obligation to Cash Collateralize shall become effective immediately, and
such deposit shall become immediately due and payable, without demand or other notice of any kind,
upon the occurrence of any Event of Default with respect to the Company or any Borrower described
in clause (h) or (i) of Article VII. Each such deposit shall be held by the Administrative Agent
as collateral for the payment and performance of the obligations of the Borrowers under this
Agreement. The Administrative Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal, over such account. Other than any interest earned on the investment
of such deposits, which investments shall be made at the option and sole discretion of the
Administrative Agent (which will use reasonable efforts to obtain a return at market rates on any
such investments) and at the Borrowers’ risk and expense, such deposits shall not bear interest.
Interest or profits, if any, on such investments shall accumulate in such account. Monies in such
account shall be applied by the Administrative Agent to reimburse the applicable Issuing Banks for
LC Disbursements for which they have not been reimbursed and, to the extent not so applied, shall
be held for the satisfaction of the reimbursement obligations of the Borrowers for the LC Exposure
at such time or, if the maturity of the Loans has been accelerated (but subject to the consent of
Lenders with LC Exposures representing more than 50% of the aggregate LC Exposures), be applied to
satisfy other obligations of the Borrowers under the Loan Documents. If the Borrowers are
required to provide cash collateral hereunder as a result of the occurrence of an Event of
Default, such cash collateral (to the extent not applied as aforesaid) shall be returned to the
Borrowers within three Business Days after all Events of Default have been cured or waived.



(j) Designation of Additional Issuing Banks. From time to time, the Company may by
notice to the Administrative Agent and the Lenders designate as additional Issuing Banks one or
more Lenders that agree to serve in such capacity as provided below. The acceptance by a Lender of
any appointment as an Issuing Bank hereunder shall be evidenced by an agreement (an “Issuing
Bank Agreement”), which shall be in a form satisfactory to the Company and the Administrative
Agent, shall set forth the LC Commitment of such Lender and shall be executed by such Lender, the
Company and the Administrative Agent and, from and after the effective date of such agreement, (i)
such Lender shall have all the rights and obligations of an Issuing Bank under this Agreement and
the other Loan Documents and (ii) references herein and in the other Loan Documents to the term
“Issuing Bank” shall be deemed to include such Lender in its capacity as an Issuing Bank. The
Issuing Bank Agreement of any Issuing Bank may limit the currencies in which and the Borrowers for
the accounts of which such Issuing Bank will issue Letters of Credit, and any such limitations
will, as to such Issuing Bank, be deemed to be incorporated in this Agreement.


 


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(k) Replacement of an Issuing Bank. An Issuing Bank may be replaced at any time by
written agreement among the Company, the Administrative Agent, the replaced Issuing Bank and the
successor Issuing Bank. The Administrative Agent shall notify the Lenders of any such replacement
of an Issuing Bank. At the time any such replacement shall become effective, the Company shall pay
all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to Section 2.12(b).
From and after the effective date of any such replacement, the successor Issuing Bank shall have
all the rights and obligations of an Issuing Bank under this Agreement with respect to Letters of
Credit to be issued thereafter and references herein to the term “Issuing Bank” shall be deemed to
refer to such successor or to any previous Issuing Bank, as the context shall require. After the
replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto and
shall continue to have all the rights and obligations of an Issuing Bank under this Agreement with
respect to Letters of Credit issued by it prior to such replacement, but shall not be required to
issue additional Letters of Credit.



(l) Issuing Bank Reports. Unless otherwise agreed by the Administrative Agent, each
Issuing Bank shall report in writing to the Administrative Agent (i) on or prior to each Business
Day on which such Issuing Bank issues, amends, renews or extends any Letter of Credit, the date of
such issuance, amendment, renewal or extension, and the currencies and face amounts of the Letters
of Credit issued, amended, renewed or extended by it and outstanding after giving effect to such
issuance, amendment, renewal or extension (and whether the amounts thereof shall have changed), it
being understood that such Issuing Bank shall not effect any issuance, renewal, extension or
amendment resulting in an increase in the aggregate amount of the Letters of Credit issued by it
without first obtaining written confirmation from the Administrative Agent that such increase is
then permitted under this Agreement, (ii) on each Business Day on which such Issuing Bank makes any
LC Disbursement, the date, currency and amount of such LC Disbursement, (iii) on any Business Day
on which the applicable Borrower fails to reimburse an LC Disbursement required to be reimbursed to
such Issuing Bank on such day, the date of such failure and the currency and amount of such LC
Disbursement and (iv) on any other Business Day, such other information as the Administrative Agent
shall reasonably request as to the Letters of Credit issued by such Issuing Bank.



SECTION 2.06. Canadian Bankers’ Acceptances. (a) Each acceptance and purchase of
B/As of a single Contract Period pursuant to Section 2.01(a) and this Section shall be made ratably
by the Tranche One Lenders in accordance with the amounts of their Tranche One Commitments.
The failure of any Lender to accept any B/A required to be accepted by it shall not relieve any
other Lender of its obligations hereunder; provided that the Commitments are several and no
Lender shall be responsible for any other Lender’s failure to accept B/As as required. Each Lender
at its option may accept and purchase any B/A by causing any Canadian lending office or Affiliate
of such Lender to accept and purchase such B/A.



(b) The B/As of a single Contract Period accepted and purchased on any date shall be in an
aggregate amount that is an integral multiple of Cdn.$1,000,000 and not less than Cdn.$5,000,000.
If any Lender’s ratable share of the B/As of any Contract Period to be accepted on any date would
not be an integral multiple of Cdn.$100,000, the face amount of the B/As accepted by such Lender
may be increased or reduced to the nearest integral multiple of Cdn.$100,000 by the Administrative
Agent, acting through its Toronto branch, in its sole discretion. B/As of more than one Contract
Period may be outstanding at the same time; provided that there shall not at any time be
more than a total of ten B/A Drawings outstanding at any time.


 


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(c) To request an acceptance and purchase of B/As, a Canadian Borrowing Subsidiary shall
notify the Administrative Agent of such request by telephone or by fax not later than 12:00 noon,
Local Time, two Business Days before the date of such acceptance and purchase. Each such request
shall be irrevocable and, if telephonic, shall be confirmed promptly by hand delivery or fax to the
Administrative Agent, acting through its Toronto branch, of a written request in a form approved by
the Administrative Agent and signed by such Canadian Borrowing Subsidiary. Each such telephonic
and written request shall specify the following information:




(i) the aggregate face amount of the B/As to be accepted and purchased;




(ii) the date of such acceptance and purchase, which shall be a Business Day;




(iii) the Contract Period to be applicable thereto, which shall be a period
contemplated by the definition of the term “Contract Period” (and which shall in no event
end after the Maturity Date); and




(iv) the location and number of the Canadian Borrowing Subsidiary’s account to which
the proceeds of such B/As are to be disbursed.



Any request for an acceptance and purchase of B/As that shall fail to specify any of the
information required by the preceding provisions of this paragraph may be rejected by the
Administrative Agent if such failure is not corrected promptly after the Administrative Agent shall
give written or telephonic notice thereof to the applicable Borrower and, if so rejected, will be
of no force or effect. Promptly following receipt of a request in accordance with this paragraph,
the Administrative Agent shall advise each Tranche One Lender of the details thereof and of the
amount of B/As to be accepted and purchased by such Lender.



(d) Each Canadian Borrowing Subsidiary hereby appoints each Tranche One Lender as its
attorney to sign and endorse on its behalf, manually or by facsimile or mechanical signature, as
and when deemed necessary by such Lender, blank forms of B/As, each Tranche One Lender hereby
agreeing that it will not sign or endorse B/As in excess of those required in connection with B/A
Drawings that have been requested by the Canadian Borrowing Subsidiaries hereunder. It shall be
the responsibility of each Tranche One Lender to maintain an adequate supply of blank forms of B/As
for acceptance under this Agreement. Each Canadian Borrowing Subsidiary recognizes and agrees that
all
B/As signed and/or endorsed on its behalf by any Tranche One Lender in accordance with such
Canadian Borrowing Subsidiary’s written request shall bind such Canadian Borrowing Subsidiary as
fully and effectually as if manually signed and duly issued by authorized officers of such Canadian
Borrowing Subsidiary. Each Tranche One Lender is hereby authorized to issue such B/As endorsed in
blank in such face amounts as may be determined by such Lender; provided that the aggregate
face amount thereof is equal to the aggregate face amount of B/As required to be accepted by such
Lender in accordance with such Canadian Borrowing Subsidiary’s written request. No Tranche One
Lender shall be liable for any damage, loss or claim arising by reason of any loss or improper use
of any such instrument unless such loss or improper use results from the bad faith, gross
negligence or willful misconduct of such Lender. Each Tranche One Lender shall maintain a record
with respect to B/As (i) received by it from the Administrative Agent in blank hereunder, (ii)
voided by it for any reason, (iii) accepted and purchased by it hereunder and (iv) canceled at
their respective maturities. Each Tranche One Lender further agrees to retain such records in the
manner and for the periods provided in applicable provincial or federal statutes and regulations of
Canada and to provide such records to each Canadian Borrowing Subsidiary upon its request and at
its expense. Upon request by any Canadian Borrowing Subsidiary, a Lender shall cancel all forms of
B/A that have been pre-signed or pre-endorsed on behalf of such Canadian Borrowing Subsidiary and
that are held by such Lender and are not required to be issued pursuant to this Agreement.


 


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(e) Drafts of each Canadian Borrowing Subsidiary to be accepted as B/As hereunder shall be
signed as set forth in paragraph (d) above. Notwithstanding that any Person whose signature
appears on any B/A may no longer be an authorized signatory for any of the Lenders or such Canadian
Borrowing Subsidiary at the date of issuance of such B/A, such signature shall nevertheless be
valid and sufficient for all purposes as if such authority had remained in force at the time of
such issuance and any such B/A so signed and properly completed shall be binding on such Canadian
Borrowing Subsidiary.



(f) Upon acceptance of a B/A by a Tranche One Lender, such Lender shall purchase such B/A
from the applicable Canadian Borrowing Subsidiary at the Discount Rate for such Lender applicable
to such B/A accepted by it and provide to the Administrative Agent the Discount Proceeds for the
account of such Canadian Borrowing Subsidiary as provided in Section 2.07. The acceptance fee
payable by the applicable Canadian Borrowing Subsidiary to a Lender under Section 2.12 in respect
of each B/A accepted by such Lender shall be set off against the Discount Proceeds payable by such
Lender under this paragraph. Notwithstanding the foregoing, in the case of any B/A Drawing
resulting from the conversion or continuation of a B/A Drawing or Revolving Borrowing pursuant to
Section 2.08, the net amount that would otherwise be payable to such Borrower by each Lender
pursuant to this paragraph will be applied as provided in Section 2.08(f).



(g) Each Tranche One Lender may at any time and from time to time hold, sell, rediscount or
otherwise dispose of any or all B/As accepted and purchased by it (it being understood that no such
sale, rediscount or disposition shall constitute an assignment or participation of any Commitment
hereunder).



(h) Each B/A accepted and purchased hereunder shall mature at the end of the Contract Period
applicable thereto.



(i) Subject to applicable law, each Canadian Borrowing Subsidiary waives presentment for
payment and any other defense to payment of any amounts due to a Tranche One Lender in respect of a
B/A accepted and purchased by it pursuant to this Agreement that might exist solely by reason of
such B/A being held, at the maturity thereof, by such Lender in its own right, and
each Canadian Borrowing Subsidiary agrees not to claim any days of grace if such Lender as
holder sues such Canadian Borrowing Subsidiary on the B/A for payment of the amounts payable by
such Canadian Borrowing Subsidiary thereunder. On the last day of the Contract Period of a B/A, or
such earlier date as may be required pursuant to the provisions of this Agreement, the applicable
Canadian Borrowing Subsidiary shall pay the Lender that has accepted and purchased such B/A the
full face amount of such B/A, and after such payment such Canadian Borrowing Subsidiary shall have
no further liability in respect of such B/A and such Lender shall be entitled to all benefits of,
and be responsible for all payments due to third parties under, such B/A.



(j) At the option of each Canadian Borrowing Subsidiary and any Lender, B/As under this
Agreement to be accepted by that Lender may be issued in the form of depository bills for deposit
with The Canadian Depository for Securities Limited pursuant to the Depository Bills and Notes Act
(Canada). All depository bills so issued shall be governed by the provisions of this Section.


 


40









 





(k) If a Tranche One Lender is not a chartered bank under the Bank Act (Canada) or if a
Tranche One Lender notifies the Administrative Agent in writing that it is otherwise unable to
accept B/As, such Lender will, instead of accepting and purchasing any B/As, make a Loan (a
“B/A Equivalent Loan”) to the applicable Canadian Borrowing Subsidiary in the amount and
for the same term as each draft which such Lender would otherwise have been required to accept and
purchase hereunder. Each such Lender will provide to the Administrative Agent the Discount
Proceeds of such B/A Equivalent Loan for the account of the applicable Canadian Borrowing
Subsidiary in the same manner as such Lender would have provided the Discount Proceeds in respect
of the draft which such Lender would otherwise have been required to accept and purchase hereunder.
Each such B/A Equivalent Loan will bear interest at the same rate that would result if such Lender
had accepted (and been paid an acceptance fee) and purchased (on a discounted basis) a B/A for the
relevant Contract Period (it being the intention of the parties that each such B/A Equivalent Loan
shall have the same economic consequences for the Lenders and the applicable Canadian Borrowing
Subsidiary as the B/A that such B/A Equivalent Loan replaces). All such interest shall be paid in
advance on the date such B/A Equivalent Loan is made, and will be deducted from the principal
amount of such B/A Equivalent Loan in the same manner in which the Discount Proceeds of a B/A would
be deducted from the face amount of the B/A. Subject to the repayment requirements of this
Agreement, on the last day of the relevant Contract Period for such B/A Equivalent Loan, the
applicable Canadian Borrowing Subsidiary shall be entitled to convert each such B/A Equivalent Loan
into another type of Loan, or to roll over each such B/A Equivalent Loan into another B/A
Equivalent Loan, all in accordance with the applicable provisions of this Agreement.



(l) Notwithstanding any provision hereof but subject to Section 2.11(b), the Borrowers may
not prepay any B/A Drawing other than on the last day of its Contract Period.



(m) For greater certainty, all provisions of this Agreement that are applicable to B/As shall
also be applicable, mutatis mutandis, to B/A Equivalent Loans.



SECTION 2.07. Funding of Borrowings and B/A Drawings. (a) Each Lender shall make
each Loan to be made by it hereunder and disburse the Discount Proceeds (net of applicable
acceptance fees) of each B/A to be accepted and purchased by it hereunder on the proposed date
thereof by wire transfer of immediately available funds in the applicable currency by 2:00 p.m.,
Local Time, to the account of the Administrative Agent most recently designated by the
Administrative Agent for such purpose by notice to the Lenders; provided that Swingline
Loans shall be made as provided in Section 2.04. The Administrative Agent will make such Loan
proceeds or Discount Proceeds available to the applicable Borrower by promptly crediting the
amounts so received, in like
funds, to the Applicable Funding Account of such Borrower; provided that ABR Revolving
Loans made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e) shall
be remitted by the Administrative Agent to the applicable Issuing Bank.



(b) Unless the Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing or acceptance and purchase of B/As that such Lender will not make
available to the Administrative Agent such Lender’s share of such Borrowing or the applicable
Discount Proceeds (net of applicable acceptance fees), the Administrative Agent may assume that
such Lender has made such share available on such date in accordance with paragraph (a) of this
Section and may, in reliance upon such assumption, make available to the applicable Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share of the applicable
Borrowing or the applicable Discount Proceeds (net of applicable acceptance fees) available to the
Administrative Agent, then the applicable Lender and such Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each
day from and including the date such amount is made available to such Borrower to but excluding the
date of payment to the Administrative Agent, at (i) in the case of such Lender, the rate reasonably
determined by the Administrative Agent to be the cost to it of funding such amount or (ii) in the
case of such Borrower, the interest rate applicable to the subject Loan or the applicable Discount
Rate and pro-rated acceptance fee, as the case may be.


 


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SECTION 2.08. Interest Elections. (a) Each Revolving Borrowing initially shall be
of the permitted Type specified in the applicable Borrowing Request and, in the case of a LIBOR
Borrowing or a EURIBOR Borrowing, shall have an initial Interest Period as specified in such
Borrowing Request. Each B/A Drawing shall have a Contract Period as specified in the applicable
request therefor. Thereafter, the applicable Borrower may elect to convert such Borrowing or B/A
Drawing to a Borrowing of a different Type or, in the case of a Borrowing in Canadian Dollars, a
B/A Drawing, or to continue such Borrowing or B/A Drawing and, in the case of a LIBOR Borrowing or
a EURIBOR Borrowing, may elect Interest Periods therefor, all as provided in this Section and on
terms consistent with the other provisions of this Agreement, it being understood that no B/A
Drawing may be converted or continued other than at the end of the Contract Period applicable
thereto. A Borrower may elect different options with respect to different portions of an affected
Borrowing or B/A Drawing, in which case each such portion shall be allocated ratably among the
Lenders holding the Loans comprising such Borrowing or accepting the B/As comprising such B/A
Drawing, as the case may be, and the Loans or B/As resulting from an election made with respect to
any such portion shall be considered a separate Borrowing or B/A Drawing. This Section shall not
apply to Swingline Borrowings, which may not be converted or continued.



(b) To make an election pursuant to this Section, a Borrower shall notify the Administrative
Agent of such election by telephone (i) in the case of an election that would result in a
Borrowing, by the time and date that a Borrowing Request would be required under Section 2.03 if
such Borrower were requesting a Revolving Borrowing of the Type and in the currency resulting from
such election to be made on the effective date of such election and (ii) in the case of an election
that would result in a B/A Drawing or the continuation of a B/A Drawing, by the time and date that
a request would be required under Section 2.06 if such Borrower were requesting an acceptance and
purchase of B/As to be made on the effective date of such election. Each such Interest Election
Request shall be irrevocable and shall be confirmed promptly by delivery to the Administrative
Agent of a written Interest Election Request in a form approved by the Administrative Agent and
signed by a Financial Officer on behalf of the applicable Borrower. Notwithstanding any other
provision of this Section, a Borrower shall not be permitted to (i) change the currency of any
Borrowing or B/A Drawing, (ii) elect an Interest Period for LIBOR Loans or EURIBOR Loans that does
not comply with
Section 2.02(d) or any Contract Period for a B/A Drawing that does not comply with Section
2.06 or (iii) convert any Borrowing or B/A Drawing to a Borrowing or B/A Drawing not available to
such Borrower under the Class of Commitments pursuant to which such Borrowing or B/A Drawing was
made.



(c) Each telephonic and written Interest Election Request shall specify the following
information in compliance with Section 2.02:




(i) the Borrowing or B/A Drawing to which such Interest Election Request applies and,
if different options are being elected with respect to different portions thereof, the
portions thereof to be allocated to each resulting Borrowing or B/A Drawing (in which case
the information to be specified pursuant to clauses (iii) and (iv) below shall be specified
for each resulting Borrowing or B/A Drawing);




(ii) the effective date of the election made pursuant to such Interest Election
Request, which shall be a Business Day;


 


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(iii) in the case of an election resulting in a Borrowing, the currency and Type of
the resulting Borrowing; and




(iv) in the case of an election resulting in a Borrowing, if the resulting Borrowing
is to be a LIBOR Borrowing or a EURIBOR Borrowing, the Interest Period to be applicable
thereto after giving effect to such election, which shall be a period contemplated by the
definition of the term “Interest Period”, and in the case of an election resulting in a B/A
Drawing, the Contract Period to be applicable thereto, which shall be a period contemplated
by the definition of the term “Contract Period”.



If any such Interest Election Request requests a LIBOR or EURIBOR Borrowing or a B/A Drawing but
does not specify an Interest Period or Contract Period, then the Borrower shall be deemed to have
selected an Interest Period of one month’s duration or a Contract Period of 30 days’ duration.



(d) Promptly following receipt of an Interest Election Request, the Administrative Agent
shall advise each affected Lender of the details thereof and of such Lender’s portion of each
resulting Borrowing or B/A Drawing.



(e) If the applicable Borrower fails to deliver a timely Interest Election Request with
respect to a LIBOR Borrowing, EURIBOR Borrowing or B/A Drawing prior to the end of the Interest
Period or Contract Period applicable thereto, then, unless such Borrowing or B/A Drawing is repaid
as provided herein, at the end of such Interest Period or Contract Period, (i) in the case of a
LIBOR Borrowing made to the Company, a US Borrowing Subsidiary or a Canadian Borrowing Subsidiary
and denominated in US Dollars, such Borrowing shall be converted to an ABR Borrowing, (ii) in the
case of a Borrowing or B/A Drawing denominated in Canadian Dollars, such Borrowing or B/A Drawing
shall be converted to a Canadian Prime Rate Borrowing and (iii) in the case of any other LIBOR
Borrowing or a EURIBOR Borrowing, such Borrowing shall become due and payable on the last day of
such Interest Period.



(f) Upon the conversion of any Borrowing (or portion thereof), or the continuation of any B/A
Drawing (or portion thereof), to or as a B/A Drawing, the net amount that would otherwise be
payable to a Borrower by each Lender pursuant to Section 2.06(f) in respect of such new B/A Drawing
shall be applied against the principal of such Borrowing (in the case of a conversion) or the
reimbursement obligation owed to such Lender under Section 2.06(i) in respect of the B/As accepted
by such Lender as part of such maturing B/A Drawing (in the case of a continuation), and such
Borrower shall pay to such Lender an amount equal to the difference between the principal amount of
such Loan or the aggregate face amount of such maturing B/As, as the case may be, and such net
amount.



(g) Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is
continuing and the Administrative Agent, at the request of the Required Lenders, so notifies the
Borrower, then, so long as an Event of Default is continuing (i) no outstanding Borrowing
denominated in US Dollars to the Company, a US Subsidiary or a Canadian Subsidiary may be converted
to or continued as a LIBOR Borrowing and (ii) unless repaid, each LIBOR Borrowing denominated in US
Dollars to the Company, a US Subsidiary or a Canadian Subsidiary shall be converted to an ABR
Borrowing at the end of the Interest Period applicable thereto.


 


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SECTION 2.09. Termination, Reduction, Increase and Redesignation of Commitments. (a) Unless previously terminated, the Commitments shall terminate on
the Maturity Date.



(b) The Company may at any time terminate, or from time to time reduce, the Commitments
(ratably as between the Tranches); provided that (i) each reduction of the Commitments
shall be in an amount that is an integral multiple of the Borrowing Multiple and not less than the
Borrowing Minimum, in each case for Borrowings denominated in US Dollars and (ii) the Company shall
not terminate or reduce the Commitments if, after giving effect to such termination or reduction
and to any concurrent payment or prepayment of Loans, B/As or LC Disbursements, the aggregate
amount of Revolving Credit Exposures under either Tranche would exceed the aggregate amount of
Commitments of such Tranche.



(c) The Company shall notify the Administrative Agent of any election to terminate or reduce
the Commitments of any Tranche under paragraph (b) of this Section at least two Business Days prior
to the effective date of such termination or reduction, specifying such election and the effective
date thereof. Promptly following receipt of any such notice, the Administrative Agent shall advise
the applicable Lenders of the contents thereof. Each notice delivered by the Company pursuant to
this Section shall be irrevocable; provided that a notice of termination of the Commitments
of any Tranche may state that such notice is conditioned upon the effectiveness of other credit
facilities, in which case such notice may be revoked or extended by the Company (by notice to the
Administrative Agent on or prior to the specified effective date) if such condition is not
satisfied or the effectiveness of such other credit facilities is delayed. Any termination or
reduction of the Commitments of any Tranche shall be permanent. Each reduction of the Commitments
of any Tranche shall be made ratably among the applicable Lenders in accordance with their
Commitments of such Tranche.



(d) The Company may at any time and from time to time, by written notice to the
Administrative Agent (which shall promptly deliver a copy to the applicable Lenders) executed by
the Company and one or more financial institutions (any such financial institution referred to in
this Section being called an “Increasing Lender”), which may include any Lender, cause new
Tranche One Commitments or Tranche Two Commitments to be extended by the Increasing Lenders (or
cause the existing Tranche One Commitments or Tranche Two Commitments of the Increasing Lenders to
be increased, as the case may be) in an amount for each Increasing Lender (which shall not be less
than $5,000,000) set forth in such notice; provided that (i) the new Commitments and
increases in existing Commitments pursuant to this paragraph shall not be greater than
US$250,000,000 in the aggregate since the Closing Date and shall not be less than US$25,000,000 (or
any portion of such US$250,000,000 aggregate amount remaining unused) for any such increase, (ii)
each Increasing
Lender, if not already a Lender hereunder, shall be subject to the approval of the
Administrative Agent, each Issuing Bank and the Swingline Lender (which approval shall not be
unreasonably withheld) and (iii) each Increasing Lender, if not already a Lender hereunder, shall
become a party to this Agreement by completing and delivering to the Administrative Agent a duly
executed accession agreement in a form satisfactory to the Administrative Agent and the Company (an
“Accession Agreement”). New Commitments and increases in Commitments shall become
effective on the date specified in the applicable notices delivered pursuant to this paragraph.
Upon the effectiveness of any Accession Agreement to which any Increasing Lender is a party, such
Increasing Lender shall thereafter be deemed to be a party to this Agreement and shall be entitled
to all rights, benefits and privileges accorded a Lender hereunder and subject to all obligations
of a Lender hereunder. Notwithstanding the foregoing, no increase in the Commitments (or in the
Commitment of any Lender) pursuant to this paragraph shall become effective unless (i) the
Administrative Agent shall have received documents consistent with those delivered under Section
4.01(b) and 4.01(c), giving effect to such increase and (ii) on the effective date of such
increase, the conditions set forth in Sections 4.02(a) and 4.02(b) shall be satisfied (with all
references in such paragraphs to a Borrowing being deemed to be references to such increase) and
the Administrative Agent shall have received a certificate to that effect dated such date and
executed by a Financial Officer of the Company.


 


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(e) On the effective date (the “Increase Effective Date”) of any increase in the
Commitments of any Tranche pursuant to paragraph (d) above (a “Commitment Increase”), (i)
the aggregate principal amount of the Revolving Borrowings of such Tranche outstanding (the
“Initial Borrowings”) immediately prior to the Commitment Increase on the Increase
Effective Date shall be deemed to be paid, (ii) each Increasing Lender that shall have had a
Commitment under such Tranche prior to the Commitment Increase shall pay to the Administrative
Agent in same day funds (in the applicable currencies), an amount equal to the difference between
(A) the product of (1) such Lender’s applicable Tranche Percentage (calculated after giving effect
to the Commitment Increase) multiplied by (2) the amount of each Subsequent Borrowing (as
hereinafter defined) and (B) the product of (1) such Lender’s applicable Tranche Percentage
(calculated without giving effect to the Commitment Increase) multiplied by (2) the amount of each
Initial Borrowing, (iii) each Increasing Lender that shall not have had a Commitment under such
Tranche prior to the Commitment Increase shall pay to Administrative Agent in same day funds (in
the applicable currencies) an amount equal to the product of (1) such Increasing Lender’s
applicable Tranche Percentage (calculated after giving effect to the Commitment Increase)
multiplied by (2) the amount of each Subsequent Borrowing, (iv) after the Administrative Agent
receives the funds specified in clauses (ii) and (iii) above, the Administrative Agent shall pay to
each Lender (in the applicable currencies) the portion of such funds that is equal to the
difference between (A) the product of (1) such Lender’s applicable Tranche Percentage (calculated
without giving effect to the Commitment Increase) multiplied by (2) the amount of each Initial
Borrowing and (B) the product of (1) such Lender’s applicable Tranche Percentage (calculated after
giving effect to the Commitment Increase) multiplied by (2) the amount of each Subsequent
Borrowing, (v) after the effectiveness of the Commitment Increase, the applicable Borrower shall be
deemed to have made new Borrowings (the “Subsequent Borrowings”) in amounts (in the
currencies of the Initial Borrowings) equal to the amounts of the Initial Borrowings and of the
Types and for the Interest Periods specified in a Borrowing Request delivered to the Administrative
Agent in accordance with Section 2.03, (vi) each Lender shall be deemed to hold its applicable
Tranche Percentage of each Subsequent Borrowing (calculated after giving effect to the Commitment
Increase) and (vii) the Borrower shall pay each Lender any and all accrued but unpaid interest on
its Loans comprising the Initial Borrowings. The deemed payments made pursuant to clause (i) above
shall be subject to compensation by the applicable Borrower pursuant to the provisions of Section
2.16 if the Increase Effective Date occurs other than on the last day of the Interest Period
relating thereto. On the Increase Effective Date of any increase in the Tranche One Commitments
pursuant to paragraph (d) above, the
applicable Borrowers and Lenders shall take such actions (including making and receiving
payments), if any, as the Administrative Agent shall specify in order that the extensions of credit
represented by any outstanding B/As may be held by the Tranche One Lenders ratably in proportion to
their Tranche One Commitments; provided that if the Administrative Agent does not specify
any such actions, such outstanding B/As will continue outstanding for the duration of the
applicable Contract Periods and the applicable Borrowers’ reimbursement obligations under Section
2.06(i) will continue to be owed to the Lenders that accepted and purchased such B/As.



(f) Any Tranche Two Lender may at any time and from time to time, upon five Business Days’
written notice to the Administrative Agent (which shall promptly deliver a copy to each other
Lender) and the Company, and with the consent of the Company, cause the entire amount of such
Lender’s Tranche Two Commitment to be redesignated as a Tranche One Commitment; provided
that (i) at the time of any such redesignation, to the extent there are any outstanding Loans, the
parties hereto shall implement arrangements satisfactory to the Company and the Administrative
Agent to ensure that the Lenders of each Tranche will, after giving effect to such redesignation
(or by such later time as the Administrative Agent may agree) hold the Loans comprising each
Borrowing under such Tranche ratably in accordance with their respective Commitments and (ii) such
redesignation will not result in the aggregate Tranche One Revolving Credit Exposures exceeding the
aggregate Tranche One Commitments or the aggregate Tranche Two Revolving Credit Exposures exceeding
the aggregate Tranche Two Commitments.


 


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SECTION 2.10. Repayment of Loans and B/As; Evidence of Debt. (a) Each Borrower hereby unconditionally promises to pay (i) to the
Administrative Agent for the account of each applicable Lender the then unpaid principal amount of
each Revolving Loan of such Borrower on the Maturity Date and the face amount of each B/A, if any,
accepted by such Lender as provided in Section 2.06 and (ii) to the Swingline Lender the then
unpaid principal amount of each Swingline Loan on the earlier of the Maturity Date and the first
date after such Swingline Loan is made that is the 15th or last day of a calendar month and is at
least three Business Days after such Swingline Loan is made; provided that on each date
that a Revolving Borrowing denominated in US Dollars or Canadian Dollars (including any ABR
Borrowing), Sterling or Euro is made to a Borrower that shall have borrowed Swingline Loans, such
Borrower shall repay all its outstanding Swingline Loans denominated in such currency. Each
Borrower will pay the principal amount of each Loan or B/A made to or drawn by such Borrower and
the accrued interest on such Loan in the currency of such Loan or B/A.



(b) Each Lender shall maintain in accordance with its usual practice an account or accounts
evidencing the Indebtedness of each Borrower to such Lender resulting from each Loan made or B/A
accepted and purchased by such Lender, including the amounts of principal and interest payable and
paid to such Lender from time to time hereunder.



(c) The Administrative Agent shall maintain accounts in which it shall record (i) the amount
of each Loan made and B/A accepted and purchased hereunder, the Class and Type of each such Loan
and, in the case of any LIBOR or EURIBOR Loan, the Interest Period applicable thereto, (ii) the
amount of any principal or interest due and payable or to become due and payable from each Borrower
to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent
hereunder for the account of the Lenders or any of them and each Lender’s share thereof.



(d) The entries made in the accounts maintained pursuant to paragraph (b) or (c) of this
Section shall be prima facie evidence of the existence and amounts of the Obligations recorded
therein; provided that the failure of any Lender or the Administrative Agent to maintain
such accounts
or any error therein shall not in any manner affect the obligation of any Borrower to repay
the Loans in accordance with the terms of this Agreement.



(e) Any Lender may request that Loans of any Class made by it to any Borrower be evidenced by
a promissory note. In such event, the applicable Borrower shall prepare, execute and deliver to
such Lender a promissory note payable to such Lender (or, if requested by such Lender, to such
Lender and its registered assigns) and in a form reasonably acceptable to the Administrative Agent.
Thereafter, the Revolving Loans evidenced by such promissory note and interest thereon shall at
all times (including after assignment pursuant to Section 11.04) be represented by one or more
promissory notes in such form payable to the payee named therein (or, if such promissory note is a
registered note, to such payee and its registered assigns).



SECTION 2.11. Prepayment of Loans. (a) Any Borrower shall have the right at any
time and from time to time to prepay any Borrowing of such Borrower, in whole or in part, subject
to prior notice in accordance with paragraph (d) of this Section.


 


46









 





(b) If the aggregate Revolving Credit Exposures under any Tranche shall exceed the aggregate
Commitments under such Tranche, then (i) on the last day of any Interest Period for any LIBOR
Borrowing or EURIBOR Borrowing, and the last day of any Contract Period for any B/A Drawing under
such Tranche and (ii) on each other date on which any ABR Revolving Borrowing, Canadian Prime Rate
Borrowing or Swingline Loan shall be outstanding under such Tranche, the applicable Borrowers shall
prepay Loans under such Tranche in an aggregate amount equal to the lesser of (A) the amount
necessary to eliminate such excess (after giving effect to any other prepayment of Loans or payment
of B/As on such day) and (B) the amount of the applicable Revolving Borrowings, B/A Drawings or
Swingline Loans referred to in clause (i) or (ii), as applicable. If the aggregate amount of the
Revolving Credit Exposures under any Tranche on the last day of any month (or on any other date
specified by Lenders representing more than 50% of the Commitments under such Tranche) shall exceed
105% of the aggregate Commitments under such Tranche, then the applicable Borrowers shall, not
later than the next Business Day, prepay one or more Borrowings under such Tranche in an aggregate
principal amount sufficient to eliminate such excess.



(c) Prior to any optional or mandatory prepayment of Borrowings hereunder, the applicable
Borrower shall select the Borrowing or Borrowings to be prepaid and shall specify such selection in
the notice of such prepayment pursuant to paragraph (d) of this Section.



(d) The applicable Borrower shall notify the Administrative Agent (and, in the case of
prepayment of a Swingline Loan, the Swingline Lender) by a fax notice signed by a Financial Officer
on behalf of the applicable Borrower of any prepayment of a Borrowing hereunder (i) in the case of
a LIBOR Borrowing denominated in US Dollars, not later than 12:00 noon, Local Time, three Business
Days before the date of such prepayment (or, in the case of a prepayment under paragraph (b) above,
as soon thereafter as practicable), (ii) in the case of a LIBOR Borrowing denominated in Canadian
Dollars, Sterling or an Alternative Currency or a EURIBOR Borrowing, not later than 12:00 noon,
Local Time, three Business days before the date of such prepayment (or, in the case of a prepayment
under paragraph (b) above, as soon thereafter as practicable), (iii) in the case of an ABR
Borrowing, not later than 12:00 noon, Local Time, the date of such prepayment and (d) in the case
of a Canadian Prime Rate Borrowing, not later than 12:00 noon, Local Time, the date of such
prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the
principal amount of each Borrowing or portion thereof to be prepaid; provided that, if a
notice of optional prepayment is given in connection with a conditional notice of termination of
the Commitments as contemplated by Section 2.09(c), then such notice of prepayment may be revoked
or extended if such notice of
termination is revoked or extended in accordance with Section 2.09(c). Promptly following
receipt of any such notice, the Administrative Agent shall advise the applicable Lenders of the
contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be
permitted in the case of an advance of a Borrowing of the same Type and in the same currency as
provided in Section 2.02. Each prepayment of a Borrowing shall be applied ratably to the Loans
included in the prepaid Borrowing.



SECTION 2.12. Fees. (a) The Company agrees to pay to the Administrative Agent, in
US Dollars, for the account of each Lender, a facility fee, which shall accrue at the Applicable
Rate on the daily amount of each Commitment of such Lender, whether used or unused, during the
period from and including the Effective Date to but excluding the date on which such Commitment
terminates; provided that, if any Lender continues to have any Revolving Credit Exposure
under any Tranche after its Commitment of such Tranche terminates, then such facility fee shall
continue to accrue on the daily amount of such Lender’s Revolving Credit Exposure under such
Tranche from and including the date on which such Commitment terminates to but excluding the date
on which such Lender ceases to have any Revolving Credit Exposure under such Tranche. Accrued
facility fees shall be payable in arrears on the first day of January, April, July and October of
each year, commencing on the first such date to occur after the Effective Date and, with respect to
the Commitments of any Tranche, on the date on which the Commitments of such Tranche shall
terminate; provided that any facility fees accruing on the Revolving Credit Exposure under
any Tranche after the date on which the Commitments of such Tranche terminate shall be payable on
demand. All facility fees shall be computed on the basis of a year of 360 days and shall be
payable for the actual number of days elapsed (including the first day but excluding the last day).


 


47









 





(b) The Company agrees to pay (i) to the Administrative Agent, in US Dollars for the account
of each Tranche One Lender or each Tranche Two Lender, as applicable, a participation fee with
respect to its participations in Letters of Credit, which shall accrue at the Applicable Rate used
to determine the interest rate applicable to LIBOR Revolving Loans, on the daily amount of such
Lender’s LC Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements)
during the period from and including the Effective Date to but excluding the later of the date on
which such Lender’s Commitment terminates and the date on which such Lender ceases to have any LC
Exposure and (ii) to each Issuing Bank a fronting fee, which shall accrue at a rate per annum
separately agreed upon between the Company and the applicable Issuing Bank on the portion of the
daily amount of the LC Exposure (excluding any portion thereof attributable to unreimbursed LC
Disbursements) attributable to Letters of Credit issued by such Issuing Bank during the period from
and including the Effective Date to but excluding the later of the date of termination of the
Commitments and the date on which there ceases to be any LC Exposure, as well as each Issuing
Bank’s standard fees with respect to the issuance, amendment, renewal or extension of any Letter of
Credit or processing of drawings thereunder. Participation fees and fronting fees accrued or
becoming payable in respect of Letters of Credit through and including the last day of March, June,
September and December of each year shall be payable on the third Business Day following such last
day, commencing on the first such date to occur after the Effective Date; provided that all
such fees shall be payable on the date on which the Commitments terminate and any such fees
accruing after the date on which the Commitments terminate shall be payable on demand. Any other
fees payable to the Issuing Banks pursuant to this paragraph shall be payable within 10 days after
demand. All participation fees and fronting fees shall be computed on the basis of a year of 360
days and shall be payable for the actual number of days elapsed (including the first day but
excluding the last day).



(c) Each Canadian Borrowing Subsidiary agrees to pay to the Administrative Agent, for the
account of each Tranche One Lender, on each date on which B/As drawn by such Canadian
Borrowing Subsidiary are accepted and purchased hereunder, in Canadian Dollars, an acceptance
fee computed by multiplying the aggregate face amount of the B/As accepted by such Lender on such
date by the product of (i) the Applicable Rate (being the applicable “B/A Stamping Fee” set forth
in the definition of such term) on such date and (ii) a fraction, the numerator of which is the
number of days in the Contract Period applicable to such B/As and the denominator of which is 365.



(d) The Company agrees to pay to the Administrative Agent, for its own account, fees payable
in the amounts and at the times separately agreed upon between the Company and the Administrative
Agent.



(e) All fees payable hereunder shall be paid on the dates due, in immediately available
funds, to the Administrative Agent or to the Issuing Banks (in the case of fees payable to them)
for distribution (i) in the case of facility fees, to the Lenders and (ii) in the case of the
participation fees, to the Tranche One Lenders or Tranche Two Lenders, as applicable and (iii) in
the case of acceptance fees, to the Tranche One Lenders. Fees paid shall not be refundable under
any circumstances.


 


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SECTION 2.13. Interest. (a) The Loans comprising each ABR Borrowing (including each
Swingline Loan denominated in US Dollars) shall bear interest at the Alternate Base Rate
plus the Applicable Rate.



(b) The Revolving Loans comprising each LIBOR Revolving Borrowing shall bear interest at the
Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus the Applicable
Rate.



(c) The Revolving Loans comprising each EURIBOR Revolving Borrowing shall bear interest at
the Adjusted EURIBO Rate for the Interest Period in effect for such Borrowing plus the
Applicable Rate.



(d) The Loans comprising each Canadian Prime Rate Borrowing (including Swingline Loans
denominated in Canadian Dollars) shall bear interest at the Canadian Prime Rate plus the
Applicable Rate.



(e) The Swingline Loans denominated in Sterling shall bear interest at the Sterling Overnight
Rate.




(f) The Swingline Loans denominated in Euro shall bear interest at the Euro Overnight Rate.



(g) Notwithstanding the foregoing, if any principal of or interest on any Loan, B/A or LC
Disbursement, any fee or other amount payable by any Borrower hereunder is not paid when due,
whether at stated maturity, upon acceleration or otherwise, such overdue amount shall bear
interest, after as well as before judgment, at a rate per annum equal to (i) in the case of overdue
principal of any Loan, B/A or LC Disbursement, 2% plus the interest rate or discount rate
otherwise applicable to such Loan, B/A or LC Disbursement as provided in the preceding paragraphs
of this Section or (ii) in the case of any other amount, 2% plus the rate applicable to ABR
Loans made to the Company as provided in paragraph (a) of this Section.



(h) Accrued interest on each Loan under any Tranche shall be payable in arrears on each
Interest Payment Date for such Loan and upon the termination of the Commitments of such Tranche;
provided that (i) interest accrued pursuant to paragraph (g) of this Section shall be
payable
on demand, (ii) in the event of any repayment or prepayment of any Loan (other than a
prepayment of an ABR Revolving Loan, a Canadian Prime Rate Revolving Loan or a Swingline Loan
denominated in Sterling or Euro prior to the end of the Availability Period), accrued interest on
the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment
and (iii) in the event of any conversion of any LIBOR Revolving Loan or EURIBOR Revolving Loan
prior to the end of the current Interest Period therefor, accrued interest on such Loan shall be
payable on the effective date of such conversion. All interest shall be payable in the currency in
which the applicable Loan is denominated.



(i) All interest hereunder shall be computed on the basis of a year of 360 days, except that
(i) interest on Borrowings denominated in Sterling, (ii) interest computed by reference to the
Alternate Base Rate at times when the Alternate Base Rate is based on the Prime Rate and (iii)
interest on Canadian Prime Rate Borrowings and acceptance fees shall each be computed on the basis
of a year of 365 days (or, in the case of ABR Borrowings, 366 days in a leap year), and
in each case shall be payable for the actual number of days elapsed (including the first day but
excluding the last day). The applicable Adjusted LIBO Rate, Adjusted EURIBO Rate, Alternate Base
Rate or Canadian Prime Rate shall be determined by the Administrative Agent, and such determination
shall be conclusive absent manifest error.


 


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SECTION 2.14. Alternate Rate of Interest. If prior to the commencement of any
Interest Period for a LIBOR Borrowing or a EURIBOR Borrowing:



(a) the Administrative Agent determines (which determination shall be conclusive absent
manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO
Rate or the Adjusted EURIBO Rate, as the case may be, for such Interest Period; or



(b) the Administrative Agent is advised by a majority in interest of the Lenders that would
make Loans as part of such Borrowing that the Adjusted LIBO Rate or Adjusted EURIBO Rate, as the
case may be, for such Interest Period will not adequately and fairly reflect the cost to such
Lenders of making or maintaining the Loans included in such Borrowing for such Interest Period;



then the Administrative Agent shall give notice thereof to the applicable Borrower and the
applicable Lenders by telephone or fax as promptly as practicable thereafter and, until the
Administrative Agent notifies the applicable Borrower and the applicable Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that
requests the conversion of any Revolving Borrowing to, or continuation of any Revolving Borrowing
as, an affected LIBOR Borrowing or a EURIBOR Borrowing, as the case may be, shall be ineffective,
(ii) any affected LIBOR Borrowing or EURIBOR Borrowing that is requested to be continued shall (A)
if denominated in US Dollars, be continued as an ABR Borrowing, or (B) otherwise, be repaid on the
last day of the then current Interest Period applicable thereto and (iii) any Borrowing Request for
an affected LIBOR Borrowing or a EURIBOR Borrowing shall (A) if denominated in US Dollars, be
deemed a request for an ABR Borrowing, or (B) otherwise, be ineffective.




SECTION 2.15. Increased Costs. (a) If any Change in Law shall:




(i) impose, modify or deem applicable any reserve, special deposit or similar
requirement (including any compulsory loan requirement or insurance charge) against assets
of, deposits with or for the account of or credit extended by, any Lender (except any such
reserve requirement reflected in the Adjusted LIBO Rate or the Adjusted EURIBO Rate) or any
Issuing Bank; or




(ii) impose on any Lender, any Issuing Bank or the London, European or Canadian
interbank market any other condition affecting this Agreement or LIBOR Loans or EURIBOR
Loans made by or any acceptance and purchase of B/As by such Lender or the funding of such
Loans or any Letter of Credit or participations therein; or;




(iii) subject any Credit Party to any Taxes on its loans, loan principal, letters of
credit, commitments or other obligations, or its deposits, reserves, other liabilities or
capital attributable thereto (other than Other Connection Taxes on gross or net income,
profits or revenue (including value-added or similar Taxes));



and the result of any of the foregoing shall be to increase the cost to such Lender or such other
Credit Party of making or maintaining any LIBOR Loan or EURIBOR Loan or accepting and purchasing
any B/As (or of maintaining its obligation to make any such Loan or to accept and purchase any such
B/As) or to increase the cost to such Lender, Issuing Bank or such other Credit Party of
participating in, issuing or maintaining any Letter of Credit or to reduce the amount of any sum
received or receivable by such Lender, Issuing Bank or such other Credit Party hereunder (whether
of principal, interest or otherwise), then the applicable Borrower will pay to such Lender, Issuing
Bank or such other Credit Party, as the case may be, such additional amount or amounts as will
compensate such Lender, Issuing Bank or such other Credit Party, as the case may be, for such
additional costs incurred or reduction suffered.


 


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(b) If any Lender or Issuing Bank determines in good faith that any Change in Law regarding
capital requirements has or would have the effect of reducing the rate of return on such Lender’s
or Issuing Bank’s capital or on the capital of such Lender’s or Issuing Bank’s holding company, if
any, as a consequence of this Agreement or the Loans made or B/As accepted and purchased by, or
participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by such
Issuing Bank, to a level below that which such Lender or Issuing Bank or such Lender’s or Issuing
Bank’s holding company could have achieved but for such Change in Law (taking into consideration
such Lender’s or Issuing Bank’s policies and the policies of such Lender’s or Issuing Bank’s
holding company with respect to capital adequacy), then from time to time the applicable Borrower
will pay to such Lender or Issuing Bank, as the case may be, such additional amount or amounts as
will compensate such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company for
any such reduction suffered.



(c) A certificate of a Lender or Issuing Bank setting forth the amount or amounts necessary
to compensate such Lender or Issuing Bank or its holding company, as the case may be, and the
manner in which such amount or amounts have been calculated, as specified in paragraph (a) or (b)
of this Section, shall be delivered to the Company and shall be conclusive and binding upon all
parties hereto absent manifest error. The Company shall pay or cause the applicable Borrower to
pay such Lender or Issuing Bank, as the case may be, the amount shown as due on any such
certificate within 10 days after receipt thereof.



(d) Failure or delay on the part of any Lender or Issuing Bank to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender’s or Issuing Bank’s right to
demand such compensation; provided that the applicable Borrower shall not be required to
compensate a Lender or Issuing Bank pursuant to this Section for any increased costs or reductions
incurred more than 180 days prior to the date that such Lender or Issuing Bank, as the case may be,
notifies the Company of the Change in Law giving rise to such increased costs or reductions and of
such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further
that, if the
Change in Law giving rise to such increased costs or reductions is retroactive, then the
180-day period referred to above shall be extended to include the period of retroactive effect
thereof.



(e) The foregoing provisions of this Section shall not apply to Taxes applicable to payments
made by the Borrowers hereunder or Other Taxes, which shall be governed solely by Section 2.17.



SECTION 2.16. Break Funding Payments. In the event of (a) the payment of any
principal of any LIBOR Loan or any EURIBOR Loan other than on the last day of an Interest Period
applicable thereto (including as a result of an Event of Default), (b) the conversion of any LIBOR
Loan or any EURIBOR Loan other than on the last day of the Interest Period applicable thereto, (c)
the failure to borrow, convert, continue or prepay any LIBOR Loan or any EURIBOR Loan or to make
any B/A Drawing on the date specified in any notice delivered pursuant hereto (regardless of
whether any such notice may be revoked or extended under Section 2.11(d) and is revoked or extended
in accordance therewith) or (d) the assignment of any LIBOR Loan or any EURIBOR Loan or the right
to receive payment in respect of a B/A other than on the last day of the Interest Period or
Contract Period applicable thereto as a result of a request by the applicable Borrower pursuant to
Section 2.19 or the CAM Exchange, then, in any such event, the applicable Borrower shall compensate
each Lender for the loss, cost and expense (but not for any lost profit) attributable to such
event. Such loss, cost or expense to any Lender shall be deemed to include an amount determined by
such Lender to be the excess, if any, of (i) (A) with respect to a LIBOR Loan or EURIBOR Loan, the
amount of interest which would have accrued on the principal amount of such Loan had such event not
occurred, at the Adjusted LIBO Rate or the Adjusted EURIBO Rate, as the case may be, that


 


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would
have been applicable to such Loan, for the period from the date of such event to the last day of
the then current Interest Period therefor (or, in the case of a failure to borrow, convert or
continue, for the period that would have been the Interest Period for such Loan) or (B) with
respect to a B/A, (x) in the case of an event described in clause (c) above, the face amount of
such B/A minus the Discount Proceeds of such B/A and (y) in the case of an event described in
clause (d) above, the face amount of such B/A minus amounts received as a result of such assignment
over (ii) the amount of interest that would accrue on such principal amount or the Discount
Proceeds applicable to such B/A for such period at the interest rate which such Lender would bid
were it to bid, at the commencement of such period, for deposits in the applicable currency of a
comparable amount and period from other banks in the London, European or Canadian interbank market.
A certificate of any Lender setting forth in reasonable detail any amount or amounts that such
Lender is entitled to receive pursuant to this Section shall be delivered to the Company and shall
be conclusive absent manifest error. The applicable Borrower shall pay such Lender the amount
shown as due on any such certificate within 10 days after receipt thereof. Any payments by the
applicable Borrowers in respect of B/As under this section shall be made without duplication of any
payment made by any Canadian Borrowing Subsidiary under Section 2.06(i).



SECTION 2.17. Taxes. (a) Any and all payments by or on account of any obligation of
a Loan Party hereunder or under any other Loan Document shall be made free and clear of and without
deduction for any Indemnified Taxes or Other Taxes; provided that if any Loan Party shall
be required to deduct any Indemnified Taxes or Other Taxes from such payments, then (i) the sum
payable shall be increased as necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section) the Administrative Agent, each
Lender and each Issuing Bank (as the case may be) receives an amount equal to the sum it would have
received had no such deductions been made, (ii) such Loan Party shall make such deductions and
(iii) such Loan Party shall pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.



(b) In addition, the Loan Parties shall pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable law.



(c) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by a Loan
Party to a Governmental Authority, such Loan Party shall deliver to the Administrative Agent the
original or a certified copy of a receipt issued by such Governmental Authority evidencing such
payment, a copy of the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.



(d) Each Loan Party shall jointly and severally indemnify the Administrative Agent, each
Lender and each Issuing Bank, within 10 days after written demand therefor, for the full amount of
any Indemnified Taxes or Other Taxes paid by the Administrative Agent, such Lender or Issuing Bank,
as the case may be, on or with respect to any payment by or on account of any obligation of such
Loan Party hereunder or under any other Loan Document (including Indemnified Taxes or Other Taxes
imposed or asserted on or attributable to amounts payable under this Section) and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate setting forth the amount of such payment or liability
delivered to the Company by the Administrative Agent (for its own account, or on behalf of a Lender
or Issuing Bank), a Lender or an Issuing Bank, shall be conclusive absent manifest error. A copy
of such certificate shall also be delivered to the Administrative Agent.


 


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(e) Each Lender shall severally indemnify the Administrative Agent for any Taxes (but, in the
case of any Indemnified Taxes or Other Taxes, only to the extent that any Loan Party has not
already indemnified the Administrative Agent for such Indemnified Taxes or Other Taxes and without
limiting the obligation of the Loan Parties to do so) attributable to such Lender that are paid or
payable by the Administrative Agent in connection with any Loan Document and any reasonable
expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. The indemnity under this
Section 2.17(e) shall be paid within 10 days after the Administrative Agent delivers to the
applicable Lender a certificate stating the amount of Taxes so paid or payable by the
Administrative Agent. Such certificate shall be conclusive of the amount so paid or payable absent
manifest error.



(f) Any Lender that is entitled to an exemption from or reduction of withholding Tax under
the law of the jurisdiction in which a Borrower to which such Lender may be required to make Loans
hereunder is resident or located, or any treaty to which such jurisdiction is a party, with respect
to payments under this Agreement shall deliver to the Company (with a copy to the Administrative
Agent), at the time or times prescribed by applicable law, such properly completed and executed
documentation prescribed by applicable law or reasonably requested by the Company as will permit
such payments to be made without withholding or at a reduced rate; provided that such
Lender has received written notice from the Company advising it of the availability of such
exemption or reduction and containing all applicable documentation. In addition, any Lender, if
requested by the Company or the Administrative Agent, shall deliver such other documentation
prescribed by law or reasonably requested by the Company or the Administrative Agent as will enable
the Company or the Administrative Agent to determine whether or not such Lender is subject to any
withholding (including backup withholding) or information reporting requirements. Notwithstanding
anything to the contrary in this Section 2.17(f), the completion, execution and submission of such
documentation shall not be required if in the Lender’s judgment such completion, execution or
submission would subject such Lender to any material unreimbursed cost or expense or would
materially prejudice the legal or commercial position of such Lender. Upon the reasonable request
of the Company or the
Administrative Agent, any Lender shall update any form or certification previously delivered
pursuant to this Section 2.17(f). Any Lender shall promptly notify the Company at any time it
determines that it is no longer in a position to provide any such previously delivered
documentation to the Company. If any form or certification previously delivered pursuant to this
Section 2.17(f) expires or becomes obsolete or inaccurate in any respect with respect to a Lender,
such Lender shall promptly (and in any event within 10 days after such expiration, obsolescence or
inaccuracy) notify the Company and the Administrative Agent in writing of such expiration,
obsolescence or inaccuracy and update the form or certification if it is legally eligible to do so.



(g) If a payment made to any Lender under any Loan Document would be subject to U.S. Federal
withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable
reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the
Code, as applicable), such Lender shall deliver to the Company or the Administrative Agent, at the
time or times prescribed by law and at such time or times reasonably requested by the Company or
the Administrative Agent, such documentation prescribed by applicable law (including as prescribed
by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by
the Company or the Administrative Agent as may be necessary for the Company or the Administrative
Agent to comply with its obligations under FATCA, to determine that such Lender has or has not
complied with such Lender’s obligations under FATCA and, as necessary, to determine the amount to
deduct and withhold from such payment. Solely for purposes of this Section 2.17(g), “FATCA” shall
include any amendments made to FATCA after the Closing Date.


 


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(h) (i) Subject to paragraphs (ii) and (iii) below, each UK Borrowing Subsidiary shall, at
the request of any Lender or the Administrative Agent, cooperate in completing any procedural
formalities necessary for such Lender to receive payments under this Agreement and any other Loan
Document without withholding or deduction on account of Taxes imposed under the laws of the United
Kingdom.




(ii) Each Lender that is entitled to an exemption from or reduction of withholding
tax on interest under any applicable double taxation treaty to which the United Kingdom is
a party, and that holds a passport number under the HMRC Double Taxation Passport scheme
and wishes that scheme to apply to this Agreement and the other Loan Documents, shall
include an indication to that effect by including the scheme reference number in such
Lender’s Administrative Questionnaire (or otherwise provide the scheme reference number to
the Administrative Agent and the Company, for the benefit of each UK Borrowing Subsidiary).




(iii) Without limiting paragraph (h)(i) above, where a Lender includes the indication
described in (h)(ii) above, each UK Borrowing Subsidiary shall file a duly completed form
DTTP-2 with respect to each such Lender with HMRC within 30 days of the date such UK
Borrowing Subsidiary becomes a Borrowing Subsidiary (or, in the case of any Lender becoming
a Lender hereunder after the date such UK Borrowing Subsidiary becomes a Borrowing
Subsidiary, within 30 days of the date such Lender becomes a Lender hereunder), and in each
case shall promptly provide such Lender with a copy of that filing.



(i) If the Administrative Agent or a Lender determines, in its sole discretion, that it has
received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by a
Borrower or with respect to which a Borrower has paid additional amounts pursuant to this Section,
it shall pay over such refund to such Borrower (but only to the extent of indemnity payments made,
or
additional amounts paid, by such Borrower under this Section with respect to the Indemnified
Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of the
Administrative Agent or such Lender and without interest (other than any interest paid by the
relevant Governmental Authority with respect to such refund); provided that such Borrower,
upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over
to such Borrower (plus any penalties, interest or other charges imposed by the relevant
Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative
Agent or such Lender is required to repay such refund to such Governmental Authority.
Notwithstanding anything to the contrary in this Section 2.17(i), in no event will the
Administrative Agent or any Lender be required to pay any amount to any Borrower pursuant to this
Section 2.17(i) to the extent such payment would place the Administrative Agent or such Lender in a
less favorable position (on a net after-Tax basis) than the Administrative Agent or such Lender
would have been in if the indemnification payments or additional amounts giving rise to such refund
had never been paid. This Section shall not be construed to require the Administrative Agent or
any Lender to make available its tax returns (or any other information relating to its taxes which
it deems confidential) to any Borrower or other Person.



(j) For purposes of Sections 2.17(e) and (f), the term “Lender” includes any Issuing
Bank.


 


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(k) If any Governmental Authority shall determine that the Administrative Agent did not
properly withhold Taxes from amounts paid to or for the account of any Lender or Issuing Bank
(whether because such recipient failed to deliver or to complete properly any form or to notify the
Administrative Agent of a change in circumstances that affected its exemption from withholding or
for any other reason), such Lender or Issuing Bank shall indemnify the Administrative Agent for all
amounts paid, directly or indirectly, by the Administrative Agent as a result of such
determination, including any penalties or interest assessed by such Governmental Authority, and
including Taxes imposed on amounts payable to the Administrative Agent under this subsection,
together with all reasonable costs and expenses related thereto.



SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) Each
Borrower shall make each payment required to be made by it hereunder or under any other Loan
Document (whether of principal, interest, fees or reimbursement of LC Disbursements or otherwise)
prior to the time expressly required hereunder or under such other Loan Document for such payment
or, if no such time is expressly required, prior to 1:00 p.m., Local Time, on the date when due, in
immediately available funds, without set-off or counterclaim. Any amounts received after such time
on any date may, in the discretion of the Administrative Agent, be deemed to have been received on
the next succeeding Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent for the account of the applicable Lenders to such account
as the Administrative Agent shall from time to time specify in one or more notices delivered to the
Company, except that payments to be made directly to an Issuing Bank or Swingline Lender as
expressly provided herein shall be made directly to such parties and payments pursuant to Sections
2.15, 2.16, 2.17, 2.20 and 11.03 shall be made directly to the Persons entitled thereto. The
Administrative Agent shall distribute any such payments received by it for the account of any other
Person to the appropriate recipient promptly following receipt thereof. If any payment under any
Loan Document shall be due on a day that is not a Business Day, the date for payment shall be
extended to the next succeeding Business Day and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such extension. All payments hereunder of
principal or interest in respect of any Loan, B/A or LC Disbursement shall, except as otherwise
expressly provided herein, be made in the currency of such Loan, B/A or LC Disbursement; all other
payments hereunder and under each other Loan Document shall be made in US Dollars. Any payment
required to be made by the
Administrative Agent hereunder shall be deemed to have been made by the time required if the
Administrative Agent shall, at or before such time, have taken the necessary steps to make such
payment in accordance with the regulations or operating procedures of the clearing or settlement
system used by the Administrative Agent to make such payment.



(b) If at any time insufficient funds are received by the Administrative Agent from any
Borrower (or from the Company as guarantor of the Obligations of such Borrower pursuant to Article
X) and available to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and
fees then due from such Borrower hereunder, such funds shall be applied (i) first, towards
payment of interest and fees then due from such Borrower hereunder, ratably among the parties
entitled thereto in accordance with the amounts of interest and fees then due to such parties and
(ii) second, towards payment of principal of the Loans and B/As and unreimbursed LC
Disbursements then due from such Borrower hereunder, ratably among the parties entitled thereto in
accordance with the amounts of such principal then due to such parties.


 


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(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise,
obtain payment in respect of its Loans, B/As, participations in LC Disbursements or Swingline Loans
or accrued interest on any of the foregoing (collectively “Claims”) resulting in such
Lender receiving payment of a greater proportion of the aggregate amount of its Claims than the
proportion received by any other Lender, then the Lender receiving such greater proportion shall
purchase (for cash at face value) participations in the Claims of the other Lenders to the extent
necessary so that the benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amounts of their respective Claims under such Tranche;
provided that (i) if any such participations are purchased and all or any portion of the
payment giving rise thereto is recovered, such participations shall be rescinded and the purchase
price restored to the extent of such recovery, without interest, and (ii) the provisions of this
paragraph shall not be construed to apply to any payment made by any Borrower pursuant to and in
accordance with the express terms of this Agreement or any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its Claims to any assignee
or participant, other than to the Company or any Subsidiary or Affiliate thereof (as to which the
provisions of this paragraph shall apply). Each Borrower consents to the foregoing and agrees, to
the extent it may effectively do so under applicable law, that any Lender acquiring a participation
pursuant to the foregoing arrangements may exercise against the Company and each Borrower rights of
set-off and counterclaim with respect to such participation as fully as if such Lender were a
direct creditor of the Company or such Borrower in the amount of such participation.



(d) Unless the Administrative Agent shall have received notice from a Borrower prior to the
date on which any payment is due to the Administrative Agent for the account of any Lenders or
Issuing Bank hereunder that such Borrower will not make such payment, the Administrative Agent may
assume that such Borrower has made such payment on such date in accordance herewith and may, in
reliance upon such assumption, distribute to the applicable Lenders or Issuing Bank, as the case
may be, the amount due. In such event, if such Borrower has not in fact made such payment, then
each applicable Lender or Issuing Bank, as the case may be, severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank
with interest thereon, for each day from and including the date such amount is distributed to it to
but excluding the date of payment to the Administrative Agent, at a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank compensation.



(e) If any Lender shall fail to make any payment required to be made by it pursuant to
Section 2.04(c), 2.05(d) or (e), 2.07(b), 2.18(d) or 11.03(c) then the Administrative Agent may, in
its
discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter
received by it for the account of such Lender to satisfy such Lender’s obligations under such
Sections until all such unsatisfied obligations are fully paid.



SECTION 2.19. Mitigation Obligations; Replacement of Lenders. (a) If any Lender
requests compensation under Section 2.15 or 2.20, or if any Borrower is required to pay any
additional amount to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 2.17, then such Lender shall use reasonable efforts to designate a different
lending office for funding or booking its affected Loans or other extensions of credit hereunder or
to assign its affected rights and obligations hereunder to another of its offices, branches or
affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate
or reduce amounts payable pursuant to Section 2.15, 2.17 or 2.20, as the case may be, in the future
and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise
be disadvantageous to such Lender. The Borrowers hereby agree to pay all reasonable costs and
expenses incurred by any Lender in connection with any such designation or assignment.


 


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(b) If (i) any Lender requests compensation under Section 2.15 or 2.20, (ii) any Loan Party
is required to pay any additional amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to Section 2.17 or (iii) any Lender is a Defaulting Lender, then the
Company may, at its sole expense and effort, upon notice to such Lender and the Administrative
Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject
to the restrictions contained in Section 11.04), all its interests, rights and obligations under
the Loan Documents to an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (x) such Borrower shall have
received the prior written consent of the Administrative Agent (and, if LC Exposure or Swingline
Exposure is being assigned, each Issuing Bank and the Swingline Lender, as applicable), which
consent, in each case, shall not unreasonably be withheld, (y) such Lender shall have received
payment of an amount equal to the outstanding principal of its Loans and B/As and funded
participations in LC Disbursements and Swingline Loans, accrued interest thereon, accrued fees and
all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding
principal, funded participations and accrued interest and fees) or such Borrower (in the case of
all other amounts) and (z) in the case of any such assignment resulting from a claim for
compensation under Section 2.15 or 2.20 or payments required to be made pursuant to Section 2.17,
such assignment will result in a material reduction in such compensation or payments. A Lender
shall not be required to make any such assignment and delegation if, prior thereto, as a result of
a waiver by such Lender or otherwise, the circumstances entitling the Company to require such
assignment and delegation cease to apply. Each party hereto agrees that an assignment and
delegation required pursuant to this paragraph may be effected pursuant to an Assignment and
Assumption executed by the Company, the Administrative Agent and the assignee and that the Lender
required to make such assignment and delegation need not be a party thereto.



SECTION 2.20. Foreign Subsidiary Costs. (a) If the cost to any Lender of making or
maintaining any Loan to, or accepting and purchasing any B/A of, or participating in any Letter of
Credit or Swingline Loan issued for the account of or made to, any Borrower is increased (or the
amount of any sum received or receivable by any Lender (or its applicable lending office) is
reduced) by an amount deemed in good faith by such Lender to be material, by reason of the fact
that such Borrower is incorporated in, or conducts business in, a jurisdiction outside the United
States of America, the United Kingdom or Canada, such Borrower shall indemnify such Lender for such
increased cost or reduction within 15 days after demand by such Lender (with a copy to the
Administrative Agent). A certificate of such Lender claiming compensation under this paragraph and
setting forth the additional amount or amounts to be paid to it hereunder (and the basis for
the calculation of such amount or amounts) shall be conclusive in the absence of manifest error.



(b) Each Lender will promptly notify the Company and the Administrative Agent of any event of
which it has knowledge that will entitle such Lender to additional interest or payments pursuant to
paragraph (a) above, but in any event within 45 days after such Lender obtains actual knowledge
thereof; provided that (i) if any Lender fails to give such notice within 45 days after it
obtains actual knowledge of such an event, such Lender shall, with respect to compensation payable
pursuant to this Section in respect of any costs resulting from such event, only be entitled to
payment under this Section for costs incurred from and after the date 45 days prior to the date
that such Lender does give such notice and (ii) each Lender will designate a different applicable
lending office, if, in the judgment of such Lender, such designation will avoid the need for, or
reduce the amount of, such compensation and will not be otherwise disadvantageous to such Lender.



(c) Notwithstanding the foregoing, no Lender shall be entitled to compensation under this
Section to the extent the applicable Borrower is a Borrower, and the increased costs for which such
Lender is claiming compensation have been or are being incurred at the time such Lender becomes a
party to this Agreement, except to the extent that such Lender’s assignor was entitled immediately
prior to the assignment to such Lender to receive compensation with respect to such increased costs
pursuant to this Section.



(d) The foregoing provisions of this Section shall not apply to Taxes applicable to payments
made by the Borrowers hereunder or Other Taxes, which shall be governed solely by Section 2.17.


 


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SECTION 2.21. Designation of Borrowing Subsidiaries. The Company may at any time and
from time to time designate any US Subsidiary, UK Subsidiary or Canadian Subsidiary or, with the
prior written consent of each Lender, any other Subsidiary, as a Borrower, in each case by delivery
to the Administrative Agent of a Borrower Joinder Agreement executed by such Subsidiary and by the
Company, and upon such delivery such Subsidiary shall for all purposes of this Agreement be a
Borrower and a party to this Agreement. Any Borrowing Subsidiary shall continue to be a Borrowing
Subsidiary until the Company shall have executed and delivered to the Administrative Agent a
Borrower Termination Agreement with respect to such Subsidiary, whereupon such Subsidiary shall
cease to be a Borrowing Subsidiary hereunder. Notwithstanding the preceding sentence, (a) no
Borrower Joinder Agreement shall become effective as to any Subsidiary if it shall be unlawful for
such Subsidiary to become a Borrower hereunder or for any Lender participating in a Tranche under
which such Subsidiary may borrow to make Loans or otherwise extend credit to such Subsidiary as
provided herein and (b) no Borrower Termination Agreement will become effective as to any Borrowing
Subsidiary until all Loans made to and B/As drawn by such Borrowing Subsidiary shall have been
repaid, all Letters of Credit issued for the account of such Borrowing Subsidiary have been drawn
in full or have expired and all amounts payable by such Borrowing Subsidiary in respect of LC
Disbursements, interest and/or fees (and, to the extent notified by the Administrative Agent or any
Lender, any other amounts payable hereunder by such Borrowing Subsidiary) shall have been paid in
full; provided that such Borrower Termination Agreement shall be effective to terminate the
right of such Borrowing Subsidiary to request or receive further extensions of credit under this
Agreement. As soon as practicable upon receipt of a Borrower Joinder Agreement, the Administrative
Agent shall send a copy thereof to each Lender.



SECTION 2.22. Defaulting Lenders. Notwithstanding any provision of this Agreement to
the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply
for so long as such Lender is a Defaulting Lender:



(a) facility fees shall continue to accrue on the amount of the Commitment of such Defaulting
Lender pursuant to Section 2.12(a) only to the extent of the Revolving Credit Exposure of such
Defaulting Lender (excluding any portion thereof constituting Swingline Exposure or LC Exposure of
such Defaulting Lender that is subject to reallocation under clause (c)(i) below);



(b) the Commitments and Revolving Credit Exposures of such Defaulting Lender shall not be
included in determining whether the Required Lenders have taken or may take any action hereunder
(including any consent to any amendment, waiver or other modification pursuant to Section 11.02);
provided, that this clause (b) shall not apply in the case of an amendment, waiver or other
modification requiring the consent of each Lender or each Lender affected thereby;



(c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a
Defaulting Lender then:




(i) all or any part of the Swingline Exposures and LC Exposures of such Defaulting
Lender shall be reallocated among the non-Defaulting Tranche One Lenders or non-Defaulting
Tranche Two Lenders, as applicable, in proportion to their respective Tranche One
Percentages or Tranche Two Percentages, as applicable, but only to the extent (A) the sum
of all non-Defaulting Tranche One Lenders’ Tranche One Revolving Credit Exposures plus such
Defaulting Lender’s Tranche One Swingline Exposure and Tranche Two LC Exposure does not
exceed the total of all non-Defaulting Tranche One Lenders’ Tranche One Commitments and (B)
the sum of all non-Defaulting Tranche Two Lenders’ Tranche Two Revolving Credit Exposures
plus such Defaulting Lender’s Tranche Two Swingline Exposure and Tranche Two LC Exposure
does not exceed the total of all non-Defaulting Tranche Two Lenders’ Tranche Two
Commitments; provided that this clause (c)(i) shall not apply if, at the time the
reallocation provided for herein would otherwise have been made, an Event of Default has
occurred and is continuing;


 


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(ii) if the reallocations described in clause (i) above cannot, or can only
partially, be effected, the Borrowers shall within one Business Day following notice by the
Administrative Agent (after giving effect to any partial reallocation pursuant to clause
(i) above) (x) prepay such Swingline Exposure and/or (y) cash collateralize for the benefit
of the Issuing Banks the Borrowers’ obligations corresponding to such Defaulting Lender’s
LC Exposure in accordance with the procedures set forth in Section 2.05(j) for so long as
such LC Exposure is outstanding;




(iii) if the Borrowers cash collateralize any portion of such Defaulting Lender’s LC
Exposure pursuant to clause (ii) above, the Borrowers shall not be required to pay any fees
to such Defaulting Lender pursuant to Section 2.12(b) with respect to such Defaulting
Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash
collateralized;




(iv) if the LC Exposure of such Defaulting Lender is reallocated pursuant to clause
(i) above, then the fees payable to the Lenders pursuant to Section 2.12(b) shall be
adjusted in accordance with the amounts of such LC Exposure allocated to the non-Defaulting
Lenders;




(v) if all or any portion of such Defaulting Lender’s Swingline Exposure that is
subject to reallocation pursuant to clause (i) above is neither reallocated nor reduced
pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of
the Swingline Lender or any other Lender hereunder, all facility fees that otherwise would
have been payable under Section 2.12(a) to such Defaulting Lender with respect to such
portion of its Swingline Exposure shall be payable to the Swingline Lender until and to the
extent that such Swingline Exposure is reallocated and/or reduced to zero; and




(vi) if all or any portion of such Defaulting Lender’s LC Exposure that is subject to
reallocation pursuant to clause (i) above is neither reallocated nor cash collateralized
pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of
the Issuing Banks or any other Lender hereunder, all facility fees that otherwise would
have been payable under Section 2.12(a) to such Defaulting Lender with respect to such
portion of its LC Exposure, and all letter of credit fees payable under Section 2.12(b)
with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks
(and allocated among them ratably based on the amount of such portion of the LC Exposure of
such Defaulting Lender attributable to Letters of Credit issued by each Issuing Bank) until
and to the extent that such LC Exposure is reallocated and/or cash collateralized; and



(d) so long as such Lender is a Defaulting Lender, no Swingline Lender shall be required to
fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend or increase any
Letter of Credit, unless it is satisfied that the Defaulting Lender’s Swingline Exposure and LC
Exposure will be 100% reallocated to the non-Defaulting Lenders and/or cash collateralized as
provided above, and participating interests in any newly made Swingline Loan or any newly issued or
increased Letter of Credit shall be allocated among non-Defaulting Lenders of the applicable
Tranche in a manner consistent with Section 2.22(c)(i) (and such Defaulting Lender shall not
participate therein).


 


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If (i) a Bankruptcy Event with respect to a parent entity of any Lender shall occur following
the Closing Date and for so long as such event shall continue or (ii) the Swingline Lender or an
Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations
under one or more other agreements in which such Lender commits to extend credit, the Swingline
Lender shall not be required to fund any Swingline Loan and such Issuing Bank shall not be required
to issue, amend or increase any Letter of Credit, unless the Swingline Lender or such Issuing Bank,
as the case may be, shall have entered into arrangements with the Borrowers or such Lender,
reasonably satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to
eliminate any risk to it in respect of such Lender hereunder.



In the event that the Administrative Agent, the Borrower, the Swingline Lender and each
Issuing Bank shall agree that a Defaulting Lender has adequately remedied all matters that caused
such Lender to be a Defaulting Lender, then the Swingline Exposures and LC Exposures of the Lenders
shall be readjusted to reflect the inclusion of such Lender’s Commitments and on such date such
Lender shall purchase at par such of the Tranche One Loans and/or Tranche Two Loans of the other
Lenders, and such funded participations in Swingline Loans and LC Disbursements, as the
Administrative Agent shall determine to be necessary in order for the Lenders to hold such Loans
and funded participations in accordance with their applicable Tranche Percentages.



ARTICLE III




Representations and Warranties




The Company represents and warrants, and each Borrower represents and warrants as to itself
and its subsidiaries, to the Lenders that:



SECTION 3.01. Organization; Powers. Each Loan Party is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its organization, has all
requisite power and authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be expected to result in a
Material Adverse Effect, is qualified to do business and is in good standing, in every jurisdiction
where such qualification is required.



SECTION 3.02. Authorization; Enforceability. The Transactions to be entered into by
each Loan Party are within such Loan Party’s corporate, partnership or other applicable powers and
have been duly authorized by all necessary corporate, partnership and, if required, stockholder or
other equityholder action. This Agreement has been duly executed and delivered by each Borrower and
constitutes, and each other Loan Document to which any Loan Party is to be a party, when executed
and delivered by such Loan Party, will constitute, a legal, valid and binding obligation of such
Borrower or Loan Party (as the case may be), enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’
rights generally and subject to general principles of equity, regardless of whether considered in a
proceeding in equity or at law.



SECTION 3.03. Governmental Approvals; No Conflicts. (a) The Transactions (i) do not
require any consent or approval of, registration or filing with, or any other action by, any
Governmental Authority, (ii) will not violate any applicable law or regulation or the charter,
by-laws or other organizational documents of any Loan Party or any order of any Governmental
Authority, (iii) will not violate or result in a default under any indenture, material agreement or
other material instrument binding upon any Loan Party or its assets, or give rise to a right
thereunder to require any payment to be made by any Loan Party and (iv) will not result in the
creation or imposition of any Lien on any asset of any Loan Party (other than Liens created
hereunder).


 


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(b) Neither the Company nor any of the Subsidiaries is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose of purchasing or carrying
margin stock (as defined in Regulation U of the Board). No part of the proceeds of any Loan will
be used, whether directly or indirectly, for any purpose that would entail a violation of such
Regulation U. Following the application of the proceeds of each Borrowing, not more than 25% of
the value of the assets (either of the Company only or of the Company and its Subsidiaries on a
consolidated basis) will be margin stock (within the meaning of Regulation U).



SECTION 3.04. Financial Condition; No Material Adverse Change. (a) The Company has heretofore furnished to the Lenders its consolidated
balance sheet and statements of income, stockholders’ equity and cash flows (i) as of and for the
fiscal year ended September 30, 2010, audited and reported on by Ernst & Young LLP, independent
public accountants and (ii) as of and for the fiscal quarter ended June 30, 2011, certified by its
chief financial officer. Such financial statements present fairly, in all material respects, the
financial position and results of operations and cash flows of the Company and its consolidated
subsidiaries as of such dates and for
such periods in accordance with GAAP, subject to year-end audit adjustments and the absence of
footnotes in the case of the statements referred to in clause (ii) above.



(b) Since September 30, 2010, there has been no material adverse change in the business,
assets, operations, prospects or condition (financial or otherwise) of the Company and the
Subsidiaries, taken as a whole.



SECTION 3.05. Properties. (a) The Company and each of the Subsidiaries has good
title to, or valid leasehold interests in, all its real and personal property material to its
business, except for minor defects in title that do not interfere with its ability to conduct its
business as currently conducted or to utilize such properties for their intended purposes.



(b) Each of the Company and the Subsidiaries owns, or is licensed to use, all trademarks,
tradenames, copyrights, patents and other intellectual property material to its business, and the
use thereof by the Company and the Subsidiaries does not infringe upon the rights of any other
Person, except for any such infringements that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.



SECTION 3.06. Litigation and Environmental Matters. (a) There are no actions, suits
or proceedings by or before any arbitrator or Governmental Authority (including the United States
Food and Drug Administration and the corresponding Governmental Authorities in Canada and the
United Kingdom) pending against or, to the knowledge of the Company, threatened against or
affecting the Company or any of the Subsidiaries (i) as to which there is a reasonable likelihood
of an adverse determination and that, if adversely determined, could reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Effect or (ii) that involve any
of the Loan Documents or the Transactions.



(b) Except with respect to any matters that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, neither the Company nor any of the
Subsidiaries (i) has failed to comply with any Environmental Law or to obtain, maintain or comply
with any permit, license or other approval required under any Environmental Law, (ii) has become
subject to any Environmental Liability, (iii) has received notice of any claim with respect to any
Environmental Liability or (iv) knows of any basis for any Environmental Liability.


 


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SECTION 3.07. Compliance with Laws and Agreements. Each of the Company and the
Subsidiaries is in compliance with all laws, regulations and orders of any Governmental Authority
applicable to it or its property and all indentures, agreements and other instruments binding upon
it or its property, except where the failure to comply, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect. No Default has occurred and is
continuing.



SECTION 3.08. Investment Company Status. Neither the Company nor any of the
Subsidiaries is an “investment company” as defined in, or subject to regulation under, the
Investment Company Act of 1940.



SECTION 3.09. Taxes. Each of the Company and the Subsidiaries has timely filed or
caused to be filed all Tax returns and reports required to have been filed and has paid or caused
to be paid all Taxes required to have been paid by it, except (a) any Taxes that are being
contested in good faith by appropriate proceedings and for which the Company or such Subsidiary, as
applicable, has set aside on its books adequate reserves or (b) to the extent that the failure to
do so could not reasonably be expected to result in a Material Adverse Effect.



SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably expected to occur
that, when taken together with all other such ERISA Events for which liability is reasonably
expected to occur, could reasonably be expected to result in a Material Adverse Effect. Any excess
of the accumulated benefits under one or more Plans (based on the assumptions used for purposes of
Accounting Standards Codification Topic 715) over the fair market value of the assets of such Plan
or Plans is in an amount that could not reasonably be expected, individually or in the aggregate,
to result in a Material Adverse Effect.



SECTION 3.11. Disclosure. The Company has disclosed to the Lenders all agreements,
instruments and corporate or other restrictions to which the Company or any of the Subsidiaries is
subject, and all other matters known to any of them, that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect. Neither the Information Memorandum
nor any of the other reports, financial statements, certificates or other information furnished by
or on behalf of any Loan Party to the Administrative Agent or any Lender in connection with the
negotiation of this Agreement or any other Loan Document or delivered hereunder or thereunder (as
modified or supplemented by other information so furnished), taken as a whole, contains any
material misstatement of fact or omits to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading;
provided that, with respect to projected financial information, the Company represents only
that such information was prepared in good faith based upon assumptions believed to be reasonable
at the time.



SECTION 3.12. Subsidiaries. Schedule 3.12 sets forth the name of, and the ownership
interest of the Company in, each Subsidiary and identifies each Subsidiary that is a Designated
Subsidiary, in each case as of the Effective Date.



SECTION 3.13. Insurance. Schedule 3.13 sets forth a description of all insurance
maintained by or on behalf of the Company and the Subsidiaries as of the Effective Date. As of the
Effective Date, all premiums in respect of such insurance have been paid to the extent due. The
Company believes that the insurance maintained by or on behalf of the Company and the Subsidiaries
is adequate.


 


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SECTION 3.14. Labor Matters. As of the Restatement Effective Date, there are no
strikes, lockouts or slowdowns against the Company or any Subsidiary pending or, to the knowledge
of the Company, threatened. The hours worked by and payments made to employees of the Company and
the Subsidiaries have not been in violation in any material respect of the Fair Labor Standards Act
or any other applicable Federal, state, local or foreign law dealing with such matters. All
payments due from the Company or any Subsidiary, or for which any claim may be made against the
Company or any Subsidiary, on account of wages and employee health and welfare insurance and other
benefits, have been paid or accrued as a liability on the books of the Company or such Subsidiary.
The consummation of the Transactions will not give rise to any right of termination or right of
renegotiation on the part of any union under any collective bargaining agreement to which the
Company or any Subsidiary is bound.



ARTICLE IV




Conditions




SECTION 4.01. Effective Date. The effectiveness of the obligations of the Lenders to
make Loans and accept and purchase B/As and of the Issuing Banks to issue Letters of Credit
hereunder was subject to the satisfaction (or waiver in accordance with Section 11.02) of the
following conditions (which the parties hereto acknowledge were satisfied on the Effective Date):




(a) The Administrative Agent (or its counsel) shall have received from each party
hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii)
written evidence reasonably satisfactory to the Administrative Agent (which may include fax
transmission of a signed signature page of this Agreement) that such party has signed a
counterpart of this Agreement.




(b) The Administrative Agent shall have received a favorable written opinion
(addressed to the Administrative Agent and the Lenders and dated the Effective Date) of (i)
Morgan, Lewis & Bockius LLP, counsel for the Borrowers, substantially in the form of
Exhibit F-1, (ii) John G. Chou, General Counsel of the Company, substantially in the form
of Exhibit F-2, (iii) McCarthy Tétrault, counsel for the Canadian Borrowing Subsidiaries on
the Closing Date, substantially in the form of Exhibit F-3, and (iv) Morgan, Lewis &
Bockius LLP, counsel for the UK Borrowing Subsidiaries on the Closing Date, substantially
in the form of Exhibit F-4 and, in each case, covering such other matters relating to the
Loan Parties, the Loan Documents or the Transactions as the Administrative Agent or the
Required Lenders shall reasonably request. The Company hereby requests such counsel to
deliver such opinions.




(c) The Administrative Agent shall have received such documents and certificates as
the Administrative Agent or its counsel may reasonably request relating to the
organization, existence and good standing of each Loan Party, the authorization of the
Transactions and any other legal matters relating to the Loan Parties, the Loan Documents
or the Transactions, all in form and substance satisfactory to the Administrative Agent and
its counsel.




(d) The Administrative Agent shall have received a certificate, dated the Effective
Date and signed by the Chief Executive Officer, President, a Vice President or a Financial
Officer of the Company, confirming compliance with the conditions set forth in paragraphs
(a) and (b) of Section 4.02 and in paragraph (f) of this Section.


 


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(e) The Administrative Agent shall have received all fees and other amounts due and
payable on or prior to the Effective Date, including, to the extent invoiced, reimbursement
or payment of all out-of-pocket expenses (including fees, charges and disbursements of
counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other
Loan Document.




(f) The Guarantee Requirement shall be satisfied.




(g) The commitments under the Existing Credit Agreement shall have been terminated,
the loans and other amounts outstanding or accrued thereunder, whether or not at the time
due and payable, shall have been paid in full, all letters of credit outstanding thereunder
shall have expired or been terminated or shall be Existing Letters of Credit, and all Liens
securing such loans and other amounts shall have been released.




(h) The Agents and Lenders shall have received all documentation and other
information requested by them for purposes of ensuring compliance with applicable “know
your customer” and anti-money laundering rules and regulations, including the USA
PATRIOT Act, the Criminal Code (Canada), the Proceeds of Crime (Money Laundering) and
Terrorist Financing Act (Canada) and the Anti-terrorism Act (Canada), not fewer than five
Business Days prior to the Closing Date.



The Administrative Agent shall notify the Company and the Lenders of the Effective Date, and such
notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the
Lenders to make Loans and accept and purchase B/As and of the Issuing Banks to issue Letters of
Credit hereunder would not have become effective unless each of the foregoing conditions was
satisfied (or waived pursuant to Section 11.02) at or prior to 5:00 p.m., New York City time, on
March 21, 2011 (and, in the event such conditions would not have been so satisfied or waived, the
Commitments would have terminated at such time).



SECTION 4.02. Each Credit Event. The obligation of each Lender to make a Loan on the
occasion of any Borrowing or to accept and purchase B/As on the occasion of any B/A Drawing, and of
each Issuing Bank to issue, amend, renew or extend any Letter of Credit, is subject to receipt of
the request therefor in accordance herewith and to the satisfaction of the following conditions:




(a) With the exception of the representations and warranties set forth in Sections
3.04(b) and 3.06(a), which must be true and correct in all material respects on the Closing
Date and the Restatement Effective Date only, the representations and warranties of each
Loan Party set forth in the Loan Documents shall be true and correct in all material
respects on and as of the date of such Borrowing or B/A Drawing or the date of issuance,
amendment, renewal or extension of such Letter of Credit, as applicable.




(b) At the time of and immediately after giving effect to such Borrowing or B/A
Drawing or the issuance, amendment, renewal or extension of such Letter of Credit, as
applicable, no Default shall have occurred and be continuing.



Each Borrowing or B/A Drawing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by the Company on the date
thereof as to the matters specified in paragraphs (a) and (b) of this Section.


 


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SECTION 4.03. Initial Credit Event for each Additional Borrowing Subsidiary. The
obligations of the Lenders to make Loans to and accept and purchase B/As issued by, and the
obligations of the Issuing Banks to issue Letters of Credit for the account of any Borrowing
Subsidiary that becomes a Borrowing Subsidiary after the Closing Date in accordance with Section
2.21 are subject to the satisfaction of the following conditions:




(a) The Administrative Agent (or its counsel) shall have received such Borrower’s
Borrower Joinder Agreement duly executed by all parties thereto.




(b) The Administrative Agent shall have received such documents (including such legal
opinions) as the Administrative Agent or its counsel may reasonably request relating to the
formation, existence and good standing of such Borrower, the authorization and legality of
the Transactions insofar as they relate to such Borrower and any other legal matters
relating to such Borrower, its Borrower Joinder Agreement or such Transactions, all in form
and substance reasonably satisfactory to the Administrative Agent and its counsel.




(c) The Administrative Agent and the Lenders shall have received, at least five
Business Days prior to the making of such Loans, acceptance and purchase of such B/As
or issuance of such Letters of Credit, all documentation and other information
relating to such Borrower requested by them for purposes of ensuring compliance with
applicable “know your customer” and anti-money laundering rules and regulations, including
the USA PATRIOT Act.



ARTICLE V




Affirmative Covenants




Until the Commitments have expired or been terminated and the principal of and interest on
each Loan and each B/A and all fees payable hereunder have been paid in full and all Letters of
Credit have expired or terminated and all LC Disbursements have been reimbursed, the Company
covenants and agrees, and each Borrower covenants and agrees, as to itself and its subsidiaries,
with the Lenders that:



SECTION 5.01. Financial Statements and Other Information.  The Company will furnish
to the Administrative Agent, which will make available by means of electronic posting to each
Lender:



(a) as soon as available, and in any event within 95 days after the end of each fiscal year
of the Company, its audited consolidated balance sheet and related statements of operations,
stockholders’ equity and cash flows as of the end of and for such year, in each case setting forth
in comparative form the figures for the previous fiscal year, all reported on by independent
registered public accounting firm of recognized national standing (without a “going concern” or
like qualification or exception and without any qualification or exception as to the scope of such
audit) to the effect that such consolidated financial statements present fairly in all material
respects the financial condition and results of operations and cash flows of the Company and the
consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;


 


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(b) as soon as available, and in any event within 50 days after the end of each of the first
three fiscal quarters of each fiscal year of the Company, its unaudited consolidated balance sheet
and related statements of operations and cash flows as of the end of and for such fiscal quarter
(other than in the case of the statements of cash flows) and the then elapsed portion of the fiscal
year, in each case setting forth in comparative form the figures for the corresponding period or
periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all
certified by a Financial Officer of the Company as presenting fairly in all material respects the
financial condition and results of operations and cash flows of the Company and its consolidated
Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to
normal year-end audit adjustments and the absence of footnotes;



(c) concurrently with any delivery of financial statements under clause (a) or (b) above, a
certificate of a Financial Officer of the Company (i) certifying as to whether a Default has
occurred and, if a Default has occurred, specifying the details thereof and any action taken or
proposed to be taken with respect thereto, (ii) setting forth reasonably detailed calculations
demonstrating compliance with Section 6.11 and (iii) stating whether any change in GAAP or in the
application thereof has occurred since the date of the Company’s audited financial statements
referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such
change on the financial statements accompanying such certificate;



(d) promptly after the same become publicly available, the Company will provide to each
Lender copies of all periodic and other reports, proxy statements and other materials filed by the
Company or any Subsidiary with the Securities and Exchange Commission or with any national
securities exchange, or distributed by the Company to its shareholders generally, as the case may
be;



(e) promptly following a request therefor, any documentation or other information that a
Lender reasonably requests in order to comply with its ongoing obligations under applicable “know
your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act; and



(f) promptly following any request therefor, such other information regarding the operations,
business affairs, assets and financial condition of the Company or any Subsidiary, or compliance
with the terms of any Loan Document, as the Administrative Agent, or any Lender through the
Administrative Agent, may reasonably request, it being understood that the Company may require any
Lender receiving such information to confirm in writing its confidentiality obligations under
Section 11.12.



Information required to be delivered pursuant to paragraphs (a), (b) and (d) of this Section
shall be deemed to have been delivered on the date on which the Company posts such information on
the Company’s website on the Internet at http://www.amerisourcebergen.com or at the appropriate
Borrower designated website at http://www.sec.gov or http://intralinks.com.



SECTION 5.02. Notices of Material Events. The Company will furnish to the
Administrative Agent and each Lender prompt written notice of the following:




(a) the occurrence of any Default;




(b) the filing or commencement of any action, suit or proceeding by or before any
arbitrator or Governmental Authority against or affecting the Company or any Affiliate
thereof that is reasonably likely to be adversely determined and, if adversely determined,
could reasonably be expected to result in a Material Adverse Effect;


 


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(c) the occurrence of any ERISA Event that, alone or together with any other ERISA
Events that have occurred, could reasonably be expected to result in liability of the
Company and the Subsidiaries in an aggregate amount exceeding US$50,000,000;




(d) the amendment, modification or waiver of any provision of any agreement or
instrument relating to any Securitization in effect on the Restatement Effective Date to
(i) add any termination event or other similar event, however denominated, or to make any
existing such event more onerous to the Company, any Subsidiary or any Securitization
Entity, (ii) advance the stated date on which such Securitization terminates, (iii)
materially reduce the amount of such Securitization or (iv) materially reduce the advance
rate of such Securitization; and




(e) any other development that results in, or could reasonably be expected to result
in, a Material Adverse Effect.



Each notice delivered under this Section shall be accompanied by a statement of a Financial Officer
or other executive officer of the Company setting forth the details of the event or development
requiring such notice and any action taken or proposed to be taken with respect thereto.



SECTION 5.03. Existence; Conduct of Business. The Company will, and will cause each
of its Subsidiaries to, do or cause to be done all things necessary to preserve, renew and keep in
full force and effect its legal existence and the rights, licenses, permits, privileges,
franchises, patents, copyrights, trademarks and trade names material to the conduct of its
business; provided that the foregoing shall not prohibit any merger, amalgamation,
consolidation, liquidation or dissolution permitted under Section 6.03.



SECTION 5.04. Payment of Obligations. The Company will, and will cause each of the
Subsidiaries to, pay its Indebtedness and other obligations, including Tax liabilities, before the
same shall become delinquent or in default, except where (a) the validity or amount thereof is
being contested in good faith by appropriate proceedings, (b) the Company or the applicable
Subsidiary has set aside on its books adequate reserves with respect thereto in accordance with
GAAP, (c) such contest effectively suspends collection of the contested obligation and the
enforcement of any Lien securing such obligation and (d) the failure to make payment pending such
contest could not reasonably be expected to result in a Material Adverse Effect.



SECTION 5.05. Maintenance of Properties; Insurance. The Company will, and will cause
each of the Subsidiaries to, (a) keep and maintain all property material to the conduct of its
business in good working order and condition, ordinary wear and tear excepted, and (b) maintain,
with financially sound and reputable insurance companies, insurance in such amounts and against
such risks as are customarily maintained by companies engaged in the same or similar businesses
operating in the same or similar locations.



SECTION 5.06. Books and Records; Inspection and Audit Rights. The Company will, and
will cause each of the Subsidiaries to, keep proper books of record and account in which full, true
and correct entries are made of all dealings and transactions in relation to its business and
activities. The Company will, and will cause each of the Subsidiaries to, permit any
representatives designated by the Administrative Agent or any Lender to visit and inspect its
properties, to examine and make extracts from its books and records and to discuss its affairs,
finances and condition with its officers and independent accountants, all at such reasonable times
and as often as reasonably requested, subject to such reasonable notice requirements and other
procedures as shall from time to time be agreed upon by the Company and the Administrative Agent.


 


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SECTION 5.07. Compliance with Laws. The Company will, and will cause each of the
Subsidiaries to, comply with all laws, rules, regulations and orders of any Governmental Authority
applicable to it or its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse Effect.



SECTION 5.08. Use of Proceeds and Letters of Credit. The proceeds of the Loans will
be used only for the purposes set forth in the preamble of this Agreement. No part of the proceeds
of any Loan will be used, whether directly or indirectly, for any purpose that entails a violation
of any of the Regulations of the Board, including Regulations U and X. Letters of Credit will be
issued only for general corporate purposes.



SECTION 5.09. Additional Subsidiaries. If any additional Subsidiary is formed or
acquired after the Effective Date, the Company will, within 45 days after such Subsidiary is formed
or acquired, notify the Administrative Agent and the Lenders thereof and cause the Guarantee
Requirement to be satisfied with respect to such Subsidiary (if it is not an Excluded Subsidiary).
Subject to Section 11.16, the Company will cause the Guarantee Requirement to remain satisfied at
all times.



SECTION 5.10. Senior Debt Status. In the event that the Company or any Designated
Subsidiary shall at any time issue or have outstanding any Indebtedness that by its terms is
subordinated to any other Indebtedness of the Company or such Subsidiary, the Company shall take or
cause such Subsidiary to take all such actions as shall be necessary to cause the Obligations to
constitute senior indebtedness (however denominated) in respect of such subordinated Indebtedness
and to enable the Lenders to have and exercise any payment blockage or other remedies available or
potentially available to holders of senior indebtedness under the terms of such subordinated
Indebtedness. Without limiting the foregoing, the Obligations are hereby designated as “senior
indebtedness” and, if relevant, as “designated senior indebtedness” in respect of all such
subordinated Indebtedness and are further given all such other designations as shall be required
under the terms of any such subordinated Indebtedness in order that the Lenders may have and
exercise any payment blockage or other remedies available or potentially available to holders of
senior indebtedness under the terms of such subordinated indebtedness.



ARTICLE VI




Negative Covenants




Until the Commitments have expired or terminated and the principal of and interest on each
Loan and each B/A and all fees payable hereunder have been paid in full and all Letters of Credit
have expired or terminated and all LC Disbursements have been reimbursed, the Company covenants and
agrees, and each Borrower covenants and agrees, as to itself and its subsidiaries, with the Lenders
that:



SECTION 6.01. Indebtedness. (a) The Company will not permit any Subsidiary to be
liable for the Senior Notes or any other Material Indebtedness (other than (x) Indebtedness
referred to in clauses (i) and (ii) of paragraph (b) below, (y) Guarantees by Foreign Subsidiaries
of Material Indebtedness of other Foreign Subsidiaries and (z) Material Indebtedness of Foreign
Subsidiaries that is not Guaranteed by any Domestic Subsidiary), whether as a primary obligor or
under any Guarantee, unless such Subsidiary (i) shall be a party to and a Guarantor under the
Guarantee Agreement or (ii) if the Guarantee Agreement shall have been terminated as provided in
Section 11.16, shall have executed and delivered a Guarantee of the Obligations satisfactory in
form and substance to the Administrative Agent. The Company will not permit any such Material
Indebtedness to contain any provision requiring, contingently or otherwise, that any Subsidiary
guarantee any obligations thereunder (other than any provision requiring Guarantees by Foreign
Subsidiaries of Material Indebtedness of other Foreign Subsidiaries) unless this Agreement shall
have been amended to incorporate such provision, mutatis mutandis, into the
appropriate Article herein.


 


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(b) The Company will not, and will not permit any Subsidiary to, enter into any inventory
securitization transaction, or create, incur, assume or permit to exist any Indebtedness of an
Excluded Subsidiary other than:




(i) Indebtedness under the Existing Securitization or any other Securitization;




(ii) Indebtedness of Excluded Subsidiaries under this Agreement; and




(iii) Indebtedness of Excluded Subsidiaries (other than any Securitization Entity) in
an aggregate principal amount not exceeding $500,000,000 at any time outstanding.



SECTION 6.02. Liens. The Company will not, and will not permit any Subsidiary to,
create, incur, assume or permit to exist any Lien on any property or asset now owned or hereafter
acquired by it, or assign or sell any income or revenues (including accounts receivable) or rights
in respect of any thereof, except:




(a) Permitted Encumbrances;




(b) any Lien on any asset of the Company or any Subsidiary existing on the Closing
Date and set forth in Schedule 6.02; provided that (i) such Lien shall not apply to
any other asset of the Company or any Subsidiary and (ii) such Lien shall secure only those
obligations which it secures on the Closing Date and extensions, renewals and replacements
thereof that do not increase the outstanding principal amount thereof;




(c) any Lien existing on any asset prior to the acquisition thereof by the Company or
any Subsidiary or existing on any asset of any Person that becomes a Subsidiary after the
Closing Date prior to the time such Person becomes a Subsidiary; provided that (i)
such Lien is not created in contemplation of or in connection with such acquisition or such
Person becoming a Subsidiary, as the case may be, (ii) such Lien shall not apply to any
other assets of the Company or any Subsidiary and (iii) such Lien shall secure only those
obligations which it secures on the date of such acquisition or the date such Person
becomes a Subsidiary, as the case may be, and extensions, renewals and replacements thereof
that do not increase the outstanding principal amount thereof;




(d) Liens on fixed or capital assets acquired, constructed or improved by the Company
or any Subsidiary; provided that (i) such Liens secure only Indebtedness incurred
to finance the acquisition, construction or improvement of such fixed or capital assets,
including any Capital Lease Obligations or other Indebtedness assumed in connection with
the acquisition of any such assets or secured by a Lien on any such assets prior to the
acquisition thereof, and extensions, renewals and replacements of any such Indebtedness
that do not increase the outstanding principal amount thereof or result in an earlier
maturity date or decreased weighted average life thereof, (ii) such security interests and
the Indebtedness secured thereby are incurred prior to or within 90 days after such
acquisition or the completion of such construction or improvement, (iii) the Indebtedness
secured thereby does not exceed 100% of the cost of acquiring, constructing or improving
such fixed or capital assets and (iv) such security interests shall not apply to any other
assets of the Company or any Subsidiary;


 


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(e) Liens on accounts receivable and the Proceeds thereof existing or deemed to exist
in connection with any Securitization permitted pursuant to Section 6.01; and




(f) other Liens securing obligations not greater than US$100,000,000 in the aggregate
outstanding at any time.



SECTION 6.03. Fundamental Changes. (a) The Company will not, and will not permit
any Subsidiary to, merge into, amalgamate with or consolidate with any other Person, or permit any
other Person to merge into, amalgamate with or consolidate with it, or liquidate or dissolve,
except that if at the time thereof and immediately after giving effect thereto no Default shall
have occurred and be continuing, (i) any Subsidiary may merge into the Company in a transaction in
which the Company is the surviving corporation, (ii) any Subsidiary may merge into any Subsidiary
in a transaction in which the surviving entity is a Subsidiary (and (A) if any party to such merger
is a
Designated Subsidiary, the surviving entity is a Designated Subsidiary and (B) if any party to
such merger is a Borrower, the surviving entity is a Borrower), (iii) any acquisition permitted
under Section 6.04 may be accomplished by a merger of one or more Subsidiaries in a transaction in
which the surviving entity is a Subsidiary (and (A) if any party to such merger is a Designated
Subsidiary, the surviving entity is a Designated Subsidiary and (B) if any party to such merger is
a Borrower, the surviving entity is a Borrower) and (iv) any Subsidiary (other than a Borrower) may
liquidate or dissolve if the Company determines in good faith that such liquidation or dissolution
is in the best interests of the Company and is not materially disadvantageous to the Lenders;
provided that any such merger or amalgamation involving a Person that is not a wholly owned
Subsidiary immediately prior to such merger or amalgamation shall not be permitted unless also
permitted by Section 6.04.



(b) The Company will not, and will not permit any of the Subsidiaries to, engage to any
material extent in any business other than businesses of the type conducted by the Company and the
Subsidiaries on the Closing Date and businesses reasonably related thereto or to the healthcare
industry or such other business as shall have been approved by the Required Lenders.



SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions. The Company
will not, and will not permit any of the Subsidiaries to, purchase or acquire (including pursuant
to any merger or amalgamation with any Person that was not a wholly owned Subsidiary prior to such
merger or amalgamation) any Equity Interests in or evidences of indebtedness or other securities
(including any option, warrant or other right to acquire any of the foregoing) of, make any loans
or advances to, Guarantee any obligations of, or make any investment or acquire any other interest
in, any other Person, or purchase or otherwise acquire (in one transaction or a series of
transactions) any assets of any other Person constituting a business unit, if (a) a Default shall
have occurred and be continuing or would occur as a result of any such transaction and any related
incurrence of Indebtedness or (b) the Company shall not be in compliance with Section 6.11
(determined on a pro forma basis as if such transaction and any related incurrence
of Indebtedness had occurred on the first day of the most recent period of four fiscal quarters for
which financial statements shall have been delivered pursuant to Section 5.01(a) or 5.01(b)). The
foregoing provisions of this Section shall not prohibit (a) investments, loans, advances,
guarantees or acquisitions made pursuant to or in connection with the Existing Securitization or
any other Securitization or (b) Permitted Investments.


 


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SECTION 6.05. Asset Sales. The Company will not, and will not permit any of the
Subsidiaries to, sell, transfer, lease or otherwise dispose of any asset, including any Equity
Interest owned by it, nor will the Company permit any of the Subsidiaries to issue any additional
Equity Interest in such Subsidiary, except:




(a) sales or other dispositions of inventory, obsolete or surplus equipment in the
ordinary course of business and dispositions of cash and Permitted Investments;




(b) sales, transfers and dispositions to the Company or a Subsidiary;
provided that any such sales, transfers or dispositions involving a Subsidiary
that is not a Designated Subsidiary shall be made in compliance with Section 6.08;




(c) sales of accounts receivable and the Proceeds thereof under any Securitization;
and




(d) sales, transfers and other dispositions of assets that are not permitted by any
other clause of this Section (including pursuant to sale and leaseback transactions);
provided that the aggregate fair market value of all assets sold, transferred
or otherwise disposed of in reliance upon this clause (d) shall not exceed, at any time,
20% of the Consolidated Tangible Assets of the Company and the Subsidiaries, as reflected
on a consolidated balance sheet of the Company as of the last day of the most recent fiscal
quarter for which financial statements shall have been delivered pursuant to Section
5.01(a) and 5.01(b), most recently prior to such sale or other disposition.



SECTION 6.06. Hedging Agreements. The Company will not, and will not permit any of
the Subsidiaries to, enter into any Hedging Agreement, other than Hedging Agreements entered into
in the ordinary course of business to hedge or mitigate risks to which the Company or any
Subsidiary is exposed in the conduct of its business or the management of its liabilities and not
for any speculative purpose.



SECTION 6.07. Restricted Payments; Certain Payments of Indebtedness. (a) The
Company will not, and will not permit any of the Subsidiaries to, declare or make, or agree to pay
or make, directly or indirectly, any Restricted Payment if a Default shall have occurred and be
continuing or would occur as a result of making such Restricted Payment and any related incurrence
of Indebtedness; provided that (i) Subsidiaries may declare and pay dividends ratably with
respect to their Equity Interests and (ii) the Company may pay any cash dividend declared by it not
more than 60 days prior to such payment if the payment of such dividend on the date on which it was
declared would have been permitted under this paragraph.



(b) The Company will not, and will not permit any of the Subsidiaries to, make or agree to
pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities
or other property) of or in respect of principal of or interest on any Indebtedness, or any payment
or other distribution (whether in cash, securities or other property), including any sinking fund
or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation
or termination of any Indebtedness, if a Default shall have occurred and be continuing or would
occur as a result of making such payment and any related incurrence of Indebtedness;
provided that the Company or any Subsidiary may pay Indebtedness created under the Loan
Documents and make regularly scheduled interest payments and scheduled or mandatory principal
payments as and when due in respect of any Indebtedness.


 


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SECTION 6.08. Transactions with Affiliates. The Company will not, and will not
permit any of the Subsidiaries to, sell, lease or otherwise transfer any material amount of assets
to, or purchase, lease or otherwise acquire any material amount of assets from, or otherwise engage
in any other material transactions with, any Affiliate of the Company or such Subsidiary, except
(a) transactions that are at prices and on terms and conditions not less favorable to the Company
or such Subsidiary than could be obtained on an arm’s-length basis from unrelated third parties,
(b) transactions between or among the Company and the Designated Subsidiaries not involving any
other Affiliate, (c) transactions between the Company or any Subsidiary and any Securitization
Entity pursuant to any Securitization and (d) any Restricted Payment permitted by Section 6.07.



SECTION 6.09. Restrictive Agreements. The Company will not, and will not permit any
of the Subsidiaries to, directly or indirectly, enter into, incur or permit to exist any agreement
or other arrangement that prohibits, restricts or imposes any condition upon (a) the ability of the
Company or any Domestic Subsidiary to create, incur or permit to exist any Lien upon any of its
property or assets (including negative pledges, but other than negative pledges that do not
prohibit, restrict or impose any condition upon Liens securing this Agreement or the Obligations)
or (b) the ability of any Domestic Subsidiary to pay dividends or other distributions with respect
to any shares of
its capital stock or to make or repay loans or advances to the Company or any other Subsidiary
or to Guarantee Indebtedness of the Company or any other Subsidiary; provided that (i) the
foregoing shall not apply to restrictions and conditions imposed by law or by any Loan Document or
by any agreement, document or instrument relating to any Securitization or any indenture, agreement
or instrument evidencing or governing Indebtedness, in each case, as in effect on the Closing Date
or as modified in accordance herewith, or relating to the Existing Securitization as modified in
accordance herewith, (ii) the foregoing shall not apply to restrictions and conditions existing on
the Closing Date identified on Schedule 6.09 (but shall apply to any amendment or modification
expanding the scope of any such restriction or condition), (iii) the foregoing shall not apply to
customary restrictions and conditions contained in agreements relating to the sale of a Subsidiary
or assets pending such sale, provided such restrictions and conditions apply only to the
Subsidiary or assets that are to be sold and such sale is permitted hereunder, (iv) clause (a) of
the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to
secured Indebtedness permitted by this Agreement if such Indebtedness is incurred in accordance
with Section 6.01 and such restrictions or conditions apply only to the property or assets financed
with such Indebtedness, (v) clause (a) of the foregoing shall not apply to customary provisions in
leases and other contracts restricting the assignment thereof and (vi) the Company and any
Subsidiary may enter into agreements limiting Guarantees by Subsidiaries, provided that any
such agreements do not limit or impair the Guarantees issued or required to be issued in connection
with this Agreement.



SECTION 6.10. Material Documents. The Company will not, nor will it permit any
Subsidiary to, amend, modify or waive in any manner that could reasonably be expected to adversely
affect the Lenders in any material respect any of its rights under (a) any indenture, material
agreement or material instrument evidencing or governing Indebtedness or (b) its certificate of
incorporation, by-laws or other organizational documents.



SECTION 6.11. Leverage Ratio. The Company will not permit the Leverage Ratio as of
the last day of any fiscal quarter to exceed 3.00 to 1.00.



SECTION 6.12. Fiscal Quarters. The Company will not change, and will not permit any
Subsidiary to change, (a) the fiscal year end of the Company or any Subsidiary to any date other
than September 30 or (b) the fiscal quarter ends of the Company or any Subsidiary to any date other
than March 31, June 30, September 30 or December 31.


 


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ARTICLE VII




Events of Default





If any of the following events (“Events of Default”) shall occur:




(a) any Borrower shall fail to pay any principal of any Loan or any B/A or any
reimbursement obligation in respect of any LC Disbursement when and as the same shall
become due and payable, whether at the due date thereof or at a date fixed for prepayment
thereof or otherwise;




(b) any Borrower shall fail to pay any interest on any Loan or any fee or any other
amount (other than an amount referred to in clause (a) of this Article) payable under this
Agreement or any other Loan Document, when and as the same shall become due and payable,
and such failure shall continue unremedied for a period of three Business Days;




(c) any representation or warranty made or deemed made by or on behalf of the Company
or any Subsidiary in or in connection with any Loan Document or any amendment or
modification thereof or waiver thereunder, or any report, certificate, financial statement
or other document furnished pursuant to or in connection with any Loan Document or any
amendment or modification thereof or waiver thereunder, shall prove to have been incorrect
in any material respect when made or deemed made;




(d) the Company or any Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Section 5.02, 5.03 (with respect to the existence of
any Borrower), 5.06, 5.08 or 5.09 or in Article VI;




(e) any Loan Party shall fail to observe or perform any covenant, condition or
agreement contained in any Loan Document (other than those specified in clause (a), (b) or
(d) of this Article), and such failure shall continue unremedied for a period of 30 days
after notice thereof from the Administrative Agent to the Company (which notice will be
given at the request of any Lender);




(f) the Company or any Subsidiary shall fail to make any payment (whether of
principal or interest and regardless of amount) in respect of any Material Indebtedness,
when and as the same shall become due and payable prior to the expiration of any grace
period applicable to such payment;




(g) any event or condition occurs that results in any Material Indebtedness becoming
due prior to its scheduled maturity or that enables or permits the holder or holders of any
Material Indebtedness or any trustee or agent on its or their behalf to cause any Material
Indebtedness to become due, or to require the prepayment, repurchase, redemption or
defeasance thereof, prior to its scheduled maturity, or there shall occur any default,
event of default, event of termination or other event that results in, or entitles any
person other than the Company or a Subsidiary to cause, the acceleration of any
Indebtedness, or the termination of the purchase of accounts receivable, under any
Securitization; provided that this clause (g) shall not apply to secured
Indebtedness that becomes due as a result of the voluntary sale or transfer of the property
or assets securing such Indebtedness;


 


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(h) an involuntary proceeding shall be commenced or an involuntary petition shall be
filed seeking (i) liquidation, reorganization or other relief in respect of any Borrower or
any other Significant Subsidiary or its debts, or of a substantial part of its assets,
under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now
or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for any Borrower or any other Significant
Subsidiary or for a substantial part of its assets, and, in any such case, such proceeding
or petition shall continue undismissed for 60 days or an order or decree approving or
ordering any of the foregoing shall be entered;




(i) any Borrower or any other Significant Subsidiary shall (i) voluntarily commence
any proceeding or file any petition seeking liquidation, reorganization or other relief
under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now
or hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely
and appropriate manner, any proceeding or petition described in clause (h) of this Article,
(iii) apply for or consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for any Borrower or any other Significant
Subsidiary or for a substantial part of its assets, (iv) file an answer admitting the
material allegations of a petition
filed against it in any such proceeding, (v) make a general assignment for the benefit
of creditors or (vi) take any action for the purpose of effecting any of the foregoing;




(j) any Borrower or any other Significant Subsidiary shall become unable, admit in
writing its inability or fail generally to pay its debts as they become due;




(k) one or more judgments for the payment of money in an aggregate amount in excess
of US$50,000,000 which is not paid or fully covered by insurance shall be rendered against
any Borrower, any other Significant Subsidiary, any Designated Subsidiary or any
combination thereof and the same shall remain undischarged for a period of 30 consecutive
days during which execution shall not be effectively stayed, or any action shall be legally
taken by a judgment creditor to attach or levy upon any assets of the Borrower or any other
Significant Subsidiary or any Designated Subsidiary to enforce any such judgment;




(l) an ERISA Event shall have occurred that, in the opinion of the Required Lenders,
when taken together with all other ERISA Events that have occurred, could reasonably be
expected to result in liability of the Borrowers, the Significant Subsidiaries and the
Designated Subsidiaries in an aggregate amount exceeding US$50,000,000;




(m) except as provided in Section 11.14 or 11.16, any Guarantee under any Loan
Document shall cease to be, or shall be asserted by any Loan Party not to be, a valid,
binding and enforceable obligation of the Company or the applicable Designated Subsidiary;




(n) a Change in Control shall occur;



then, and in every such event (other than an event with respect to any Borrower described in clause
(h) or (i) of this Article), and at any time thereafter during the continuance of such event, the
Administrative Agent may, and at the request of the Required Lenders shall, by notice to the
Company, take either or both of the following actions, at the same or different times: (i)
terminate the Commitments, and thereupon the Commitments shall terminate immediately and (ii)
declare the Loans and all payment obligations of the Borrowers in respect of B/As then outstanding
to be due and payable in whole (or in part, in which case any principal not so declared to be due
and payable may thereafter be declared to be due and payable), and thereupon the principal of the
Loans and all payment obligations of the Borrowers in respect of B/As so declared to be due and
payable, together


 


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with accrued interest thereon and all fees and other obligations of the Borrowers
accrued hereunder, shall become due and payable immediately, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Borrowers; and in case of any
event with respect to any Borrower described in clause (h) or (i) of this Article, the Commitments
shall automatically terminate and the principal of the Loans and all payment obligations of the
Borrowers in respect of B/As then outstanding, together with accrued interest thereon and all fees
and other obligations of the Borrowers accrued hereunder, shall automatically become due and
payable, without presentment, demand, protest or other notice of any kind, all of which are hereby
waived by the Borrowers.



ARTICLE VIII




The Administrative Agent




Each of the Lenders and the Issuing Banks hereby irrevocably appoints the entity named as
Administrative Agent in the heading of this Agreement and its successors to serve as administrative
agent under the Loan Documents, and authorizes the Administrative Agent to take such
actions and to exercise such powers as are delegated to the Administrative Agent by the terms
of the Loan Documents, together with such actions and powers as are reasonably incidental thereto.



The Person serving as the Administrative Agent hereunder shall have the same rights and powers
in its capacity as a Lender or an Issuing Bank as any other Lender or Issuing Bank and may exercise
the same as though it were not the Administrative Agent, and such Person and its Affiliates may
accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity
for and generally engage in any kind of business with the Company or any Subsidiary or other
Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any
duty to account therefor to the Lenders or the Issuing Banks.



The Administrative Agent shall not have any duties or obligations except those expressly set
forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the
Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of
whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any
duty to take any discretionary action or to exercise any discretionary power, except discretionary
rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is
required to exercise as directed in writing by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in
good faith to be necessary, under the circumstances as provided in the Loan Documents),
provided that the Administrative Agent shall not be required to take any action that, in
its opinion, could expose the Administrative Agent to liability or be contrary to any Loan Document
or applicable law, and (c) except as expressly set forth in the Loan Documents, the Administrative
Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to Company, any Subsidiary or any other Affiliate of any of the foregoing that
is communicated to or obtained by the Person serving as Administrative Agent or any of its
Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or
not taken by it with the consent or at the request of the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in
good faith to be necessary, under the circumstances as provided in the Loan Documents) or in the
absence of its own gross negligence or willful misconduct (such absence to be presumed unless
otherwise determined by a court of competent jurisdiction by a final and non-appealable judgment).
The Administrative Agent shall be deemed not to have knowledge of any Default unless and until
written notice thereof (stating that it is a “Notice of Default”) is given to the Administrative
Agent by the Company, a Lender or an Issuing Bank, and the Administrative Agent shall not be
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inquire into (i) any statement, warranty or
representation made in or in connection with any Loan Document, (ii) the contents of any
certificate, report or other document delivered thereunder or in connection therewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or conditions set
forth in any Loan Document or the occurrence of any Default, (iv) the sufficiency, validity,
enforceability, effectiveness or genuineness of any Loan Document or any other agreement,
instrument or document or (v) the satisfaction of any condition set forth in Article IV or
elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent or satisfaction of any condition that expressly refers to the
matters described therein being acceptable or satisfactory to the Administrative Agent.
Notwithstanding anything herein to the contrary, the Administrative Agent shall not have any
liability arising from any confirmation of the Revolving Credit Exposure or the component amounts
thereof or of any determination made by it under Section 1.05.



The Administrative Agent shall be entitled to rely, and shall not incur any liability for
relying, upon any notice, request, certificate, consent, statement, instrument, document or other
writing (including any electronic message, Internet or intranet website posting or other
distribution) believed
by it to be genuine and to have been signed, sent or otherwise authenticated by the proper
Person (whether or not such Person in fact meets the requirements set forth in the Loan Documents
for being the signatory, sender or authenticator thereof). The Administrative Agent also shall be
entitled to rely, and shall not incur any liability for relying, upon any statement made to it
orally or by telephone and believed by it to be made by the proper Person (whether or not such
Person in fact meets the requirements set forth in the Loan Documents for being the signatory,
sender or authenticator thereof), and may act upon any such statement prior to receipt of written
confirmation thereof. The Administrative Agent may consult with legal counsel (who may be counsel
for any Borrower), independent accountants and other experts selected by it, and shall not be
liable for any action taken or not taken by it in accordance with the advice of any such counsel,
accountants or experts.



The Administrative Agent may perform any of and all its duties and exercise its rights and
powers hereunder or under any other Loan Document by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform
any of and all their duties and exercise their rights and powers through their respective Related
Parties, including through its Toronto or London branches as applicable. The exculpatory
provisions of this Article shall apply to any such sub-agent and to the Related Parties of the
Administrative Agent and any such sub-agent, and shall apply to their respective activities in
connection with the syndication of the credit facilities provided for herein as well as activities
as Administrative Agent.



Subject to the appointment and acceptance of a successor Administrative Agent as provided in
this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the
Issuing Banks and the Company. Upon any such resignation, the Required Lenders (in the case of a
resignation by the Administrative Agent) shall have the right to appoint a successor, subject
(except during the existence of an Event of Default) to the approval of the Company. If no
successor Administrative Agent shall have been so appointed and shall have accepted such
appointment within 30 days after the retiring Administrative Agent gives notice of its resignation,
then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Banks, appoint
a successor Administrative Agent which shall be a bank with an office in New York, New York, or an
Affiliate of any such bank, that is reasonably acceptable to the Company. Upon the acceptance of
its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to
and become vested with all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations
hereunder. The fees payable by the Company to a successor Administrative Agent shall be the same
as those payable to its predecessor unless otherwise agreed between the Company and such successor.
After an Administrative Agent’s resignation hereunder, the provisions of this Article and Section
11.03 shall continue in effect for the benefit of such retiring Administrative Agent, its
sub-agents and their respective Related Parties in respect of any actions taken or omitted to be
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Each Lender and Issuing Bank acknowledges that it has, independently and without reliance upon
the Administrative Agent, the Arrangers or any other Lender or Issuing Bank, or any of the Related
Parties of any of the foregoing, and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender
and Issuing Bank also acknowledges that it will, independently and without reliance upon the
Administrative Agent, the Arrangers or any other Lender or Issuing Bank, or any of the Related
Parties of any of the foregoing, and based on such documents and information as it shall from time
to time deem appropriate, continue to make its own decisions in taking or not taking action under
or based
upon this Agreement, any other Loan Document or any related agreement or any document
furnished hereunder or thereunder.



Each Lender, by delivering its signature page to this Agreement and funding its Loans on the
Effective Date, or delivering its signature page to an Assignment and Assumption or an Accession
Agreement pursuant to which it shall become a Lender hereunder, shall be deemed to have
acknowledged receipt of, and consented to and approved, each Loan Document and each other document
required to be delivered to, or be approved by or satisfactory to, the Administrative Agent or the
Lenders on the Restatement Effective Date.



Notwithstanding anything herein to the contrary, no Arranger nor any Person named on the cover
page of this Agreement as a Syndication Agent or a Documentation Agent shall have any duties or
obligations under this Agreement or any other Loan Document (except in its capacity, as applicable,
as a Lender or an Issuing Bank), but all such Persons shall have the benefit of the indemnities
provided for hereunder.



The provisions of this Article are solely for the benefit of the Administrative Agent, the
Lenders and the Issuing Banks, and none of the Company or any other Loan Party shall have any
rights as a third party beneficiary of any such provisions.



ARTICLE IX




Collection Allocation Mechanism




On the CAM Exchange Date, (a) the Commitments shall automatically and without further act be
terminated as provided in Article VII, (b) each Lender shall become obligated to fund, within one
Business Day, all participations in outstanding Swingline Loans held by it (it being agreed that
the CAM Exchange shall not result in a reallocation of such funding obligations, but only of the
funded participations resulting therefrom) and (c) the Lenders shall automatically and without
further act be deemed to have made reciprocal purchases of interests in the Designated Obligations
such that, in lieu of the interests of each Lender in the particular Designated Obligations that it
shall own as of such date and immediately prior to the CAM Exchange, such Lender shall own an
interest equal to such Lender’s CAM Percentage in each Designated Obligation. Each Lender, each
person acquiring a participation from any Lender as contemplated by Section 11.04 and each Borrower
hereby consents and agrees to the CAM Exchange. Each Borrower and each Lender agrees from time to
time to execute and deliver to the Administrative Agent all such promissory notes and other


 


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instruments and documents as the Administrative Agent shall reasonably request to evidence and
confirm the respective interests and obligations of the Lenders after giving effect to the CAM
Exchange, and each Lender agrees to surrender any promissory notes originally received by it
hereunder to the Administrative Agent against delivery of any promissory notes so executed and
delivered; provided that the failure of any Borrower to execute or deliver or of any Lender
to accept any such promissory note, instrument or document shall not affect the validity or
effectiveness of the CAM Exchange.



As a result of the CAM Exchange, on and after the CAM Exchange Date, each payment received by
the Administrative Agent pursuant to any Loan Document in respect of the Designated Obligations
shall be distributed to the Lenders pro rata in accordance with their respective
CAM Percentages (to be redetermined as of each such date of payment or distribution to the extent
required by the next paragraph), but giving effect to assignments after the CAM Exchange Date, it
being understood that nothing herein shall be construed to prohibit the assignment of a
proportionate
part of all an assigning Lender’s rights and obligations in respect of a single Class of
Commitments or Loans.



In the event that, after the CAM Exchange, the aggregate amount of the Designated Obligations
shall change as a result of the making of an LC Disbursement of either Tranche by an Issuing Bank
that is not reimbursed by the applicable Borrower, then (a) each Lender of such Tranche shall, in
accordance with Section 2.05(d), promptly purchase from the applicable Issuing Bank a participation
in such LC Disbursement in the amount of such Lender’s Tranche One Percentage or Tranche Two
Percentage, as the case may be, of such LC Disbursement (without giving effect to the CAM
Exchange), (b) the Administrative Agent shall redetermine the CAM Percentages after giving effect
to such LC Disbursement and the purchase of participations therein by the applicable Lenders, and
the Lenders shall automatically and without further act be deemed to have made reciprocal purchases
of interests in the Designated Obligations such that each Lender shall own an interest equal to
such Lender’s CAM Percentage in each of the Designated Obligations and (c) in the event
distributions shall have been made in accordance with the preceding paragraph, the Lenders shall
make such payments to one another as shall be necessary in order that the amounts received by them
shall be equal to the amounts they would have received had each LC Disbursement been outstanding
immediately prior to the CAM Exchange. Each such redetermination shall be binding on each of the
Lenders and their successors and assigns and shall be conclusive absent manifest error.



ARTICLE X




Guarantee




In order to induce the Lenders to extend credit hereunder, the Company hereby irrevocably and
unconditionally guarantees, as a primary obligor and not merely as a surety, the payment when and
as due of the Obligations. The Company further agrees that the due and punctual payment of such
Obligations may be extended or renewed, in whole or in part, without notice to or further assent
from it, and that it will remain bound upon its guarantee hereunder notwithstanding any such
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The Company waives presentment to, demand of payment from and protest to any Borrower or other
obligor of any of the Obligations, and also waives notice of acceptance of its obligations and
notice of protest for nonpayment. The obligations of the Company hereunder shall not be affected
by (a) the failure of the Administrative Agent, any Issuing Bank or any Lender to assert any claim
or demand or to enforce any right or remedy against any Loan Party under the provisions of this
Agreement, any other Loan Document or otherwise, (b) any extension or renewal of any of the
Obligations, (c) any rescission, waiver, amendment or modification of, or release from, any of the
terms or provisions of this Agreement, or any other Loan Document or agreement, (d) any default,
failure or delay, willful or otherwise, in the performance of any of the Obligations, (e) any
decree or order, or any law or regulation of any jurisdiction or event affecting any term of an
Obligation or (f) any other act, omission or delay to do any other act which may or might in any
manner or to any extent vary the risk of the Company or otherwise operate as a discharge of a
guarantor as a matter of law or equity or which would impair or eliminate any right of the Company
to subrogation or any other circumstance that might constitute a defense of the Company or any
other Borrower or obligor, and any defense arising from the foregoing is hereby waived.



The Company further agrees that its agreement hereunder constitutes a guarantee of payment
when due (whether or not any bankruptcy or similar proceeding shall have stayed the accrual or
collection of any of the Obligations or operated as a discharge thereof) and not merely of
collection,
and waives any right to require that any resort be had by the Administrative Agent, any
Issuing Bank or any Lender to any balance of any deposit account or credit on the books of the
Administrative Agent or any Lender in favor of any Borrower or any other Person.



The obligations of the Company hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason (other than the indefeasible payment in full of all the
Obligations), and any defense or set-off, counterclaim, recoupment or termination whatsoever, by
reason of the invalidity, illegality or unenforceability of any of the Obligations, any
impossibility in the performance of any of the Obligations or otherwise (other than for the
indefeasible payment in full of all the Obligations) is hereby waived.



The Company further agrees that its obligations hereunder shall continue to be effective or be
reinstated, as the case may be, if at any time payment, or any part thereof, of any Obligation is
rescinded or must otherwise be restored by the Administrative Agent, any Issuing Bank or any Lender
upon the bankruptcy or reorganization of any Borrower or other obligor or otherwise.



In furtherance of the foregoing and not in limitation of any other right, the Administrative
Agent or any Lender may have at law or in equity against the Company by virtue hereof, upon the
failure of any other Borrower or other obligor to pay any Obligation when and as the same shall
become due, whether at maturity, by acceleration, after notice of prepayment or otherwise, the
Company hereby promises to and will, upon receipt of written demand by the Administrative Agent,
any Issuing Bank or any Lender, forthwith pay, or cause to be paid, to the Administrative Agent or
Lender in cash an amount equal to the unpaid principal amount of such Obligation then due, together
with accrued and unpaid interest thereon. The Company further agrees that if payment in respect of
any Obligation shall be due in a currency other than US Dollars and/or at a place of payment other
than New York and if, by reason of any Change in Law, disruption of currency or foreign exchange
markets, war or civil disturbance or other event, payment of such Obligation in such currency or at
such place of payment shall be impossible or, in the reasonable judgment of the Administrative
Agent, any Issuing Bank or any Lender, not consistent with the protection of its rights or
interests, then, at the election of the Administrative Agent, the Company shall make payment of
such Obligation in US Dollars (based upon the applicable Exchange Rate in effect on the date of
payment) and/or in New York, and shall indemnify the Administrative Agent and each Lender against
any losses or reasonable out-of-pocket expenses that it shall sustain as a result of such
alternative payment.



Upon payment by the Company of any sums as provided above, all rights of the Company against
any Borrower or other obligor arising as a result thereof by way of right of subrogation or
otherwise shall in all respects be subordinated and junior in right of payment to the prior
indefeasible payment in full of all the Obligations owed by such Borrower or other obligor to the
Administrative Agent, the Issuing Bank and the Lenders.


 


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ARTICLE XI




Miscellaneous




SECTION 11.01. Notices. (a) Except in the case of notices and other communications
expressly permitted to be given by telephone (and subject to paragraph (b) below), all notices and
other communications provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by fax, as follows:




(i) if to the Company, to it at 1300 Morris Drive, Suite 100, Chesterbrook, PA 19087,
Attention of J.F. Quinn (Fax No. (610) 727-3639), with a copy to the Company, Attention of
General Counsel;




(ii) if to any Borrower (other than the Company), to it in care of the Company as
provided in clause (i) above;




(iii) if to the Administrative Agent, JPMCB, in its capacity as a Swingline Lender or
JPMCB, in its capacity as Issuing Bank, as follows: (a) if such notice relates to a Loan or
Borrowing denominated in US Dollars, or does not relate to any particular Loan, Borrowing
or Letter of Credit, to JPMorgan Chase Bank, N.A., Loan and Agency Services Group, 1111
Fannin, Floor 10, Houston, TX 77002, United States, Attention of John Ngo (Fax No. (713)
374-4312) with a copy to JPMorgan Chase Bank, N.A., 383 Madison Avenue, Floor 24, New York,
NY 10179, United States, Attention of Vanessa Chiu (Fax No. (646) 534-0574), (b) if such
notice relates to a Loan or Borrowing denominated in Canadian Dollars, to JPMorgan Chase
Bank, N.A., Loan and Agency Services Group, 1111 Fannin, Floor 10, Houston, TX 77002,
United States, Attention of Carla Kinney (Fax No. (713) 374-4312) with a copy to JPMorgan
Chase Bank, N.A., 383 Madison Avenue, Floor 24, New York, NY 10179, United States,
Attention of Vanessa Chiu (Fax No. (646) 534-0574), (c) if such notice relates to a Loan or
Borrowing denominated in Euro, Sterling or a Designated Currency, to J.P. Morgan Europe
Limited, 125 London Wall, London, EC2Y-5AJ, United Kingdom, Attention of The Manager, Loan
& Agency Services (Fax No. 44 (0) 207 777 2360) with a copy to JPMorgan Chase Bank, N.A.,
383 Madison Avenue, New York, NY 10179, Attention of Vanessa Chiu (Fax No. (646) 534-0574)
and (d) if such notice relates to a Letter of Credit, to JPMorgan Chase Bank, N.A., 10420
Highland Manor Drive, Floor 4, Tampa, FL 33610, Attention of Letter of Credit Department
(Fax No. (813) 432-5162, with a copy to JPMorgan Chase Bank, N.A., 383 Madison Avenue,
Floor 24, New York, NY 10179, United States, Attention of Vanessa Chiu (Fax No. (646)
534-0574);




(iv) if to any other Issuing Bank or Lender, to it at its address (or fax number) set
forth in its Administrative Questionnaire.



(b) Notices sent by hand or overnight courier service, or mailed by certified or registered
mail, shall be deemed to have been given when received; notices sent by fax shall be deemed to have
been given when sent (except that, if not given during normal business hours for the recipient,
shall be deemed to have been given at the opening of business on the next business day for the
recipient); and notices delivered through electronic communications to the extent provided in
paragraph (c) below shall be effective as provided in such paragraph.


 


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(c) Notices and other communications to the Lenders hereunder may be delivered or furnished
by electronic communications pursuant to procedures approved by the Administrative Agent;
provided that the foregoing shall not apply to notices under Article II to any Lender or
Issuing Bank if such Lender or Issuing Bank, as applicable, has notified the Administrative Agent
that it is incapable of receiving notices under such Article by electronic communication. The
Administrative Agent or any Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to procedures approved by it;
provided that approval of such procedures may be limited to particular notices or
communications.



(d) Any party hereto may change its address or fax number for notices and other
communications hereunder by notice to the other parties hereto.



SECTION 11.02. Waivers; Amendments. (a) No failure or delay by the Administrative
Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other
Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any other right or power.
The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder
and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies
that they would otherwise have. No waiver of any provision of any Loan Document or consent to any
departure by any Loan Party therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective only
in the specific instance and for the purpose for which given. Without limiting the generality of
the foregoing, the execution and delivery of this Agreement, the making of a Loan, acceptance and
purchase of a B/A or issuance of a Letter of Credit shall not be construed as a waiver of any
Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have
had notice or knowledge of such Default at the time.



(b) None of this Agreement, any Loan Document or any provision hereof or thereof may be
waived, amended or modified except, in the case of this Agreement, pursuant to an agreement or
agreements in writing entered into by the Company and the Required Lenders or, in the case of any
other Loan Document, pursuant to an agreement or agreements in writing entered into by the
Administrative Agent and the Loan Party or Loan Parties that are parties thereto, in each case with
the consent of the Required Lenders; provided that no such agreement shall (i) increase any
Commitment of any Lender without the written consent of such Lender, (ii) reduce the principal
amount of any Loan, payment obligation in respect of a B/A or LC Disbursement or reduce the rate of
interest thereon, or reduce any fees payable hereunder, without the written consent of each Lender
affected thereby, (iii) postpone the maturity of any Loan or B/A, or the required date of
reimbursement of any LC Disbursement, or any date for the payment of any interest or fees payable
hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled
date of expiration of any Commitment, without the written consent of each Lender affected thereby,
(iv) change Section 2.18(b) or 2.18(c) in a manner that would alter the pro rata
sharing of payments required thereby, without the written consent of each Lender, (v) change any of
the provisions of this Section or the percentage set forth in the definition of “Required Lenders”
or any other provision of any Loan Document specifying the number or percentage of Lenders (or
Lenders of any Class) required to waive, amend or modify any rights thereunder or make any
determination or grant any consent thereunder, without the written consent of each Lender (or each
Lender of such Class, as the case may be), (vi) release the Company from its Guarantee under
Article X, or release any Subsidiary from its Guarantee under the Guarantee Agreement or any other
guarantee agreement entered into pursuant to Section 6.01(a) (except as expressly provided in this
Agreement or the Guarantee Agreement), or limit the liability of the Company or any Subsidiary in
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without the written consent of each Lender or (vii) change any
provision of any Loan Document in a manner that by its terms adversely affects the rights in
respect of payments or prepayments due to Lenders with Commitments or Obligations of any Class
differently than those with Commitments or Obligations of any other Class, without the written
consent of Lenders holding a majority in interest of the Commitments and outstanding Loans and B/As
of the adversely affected Class; provided further that (A) no such agreement shall amend,
modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank or
the Swingline Lender without the prior written consent of the Administrative Agent, such Issuing
Bank or the Swingline Lender, as the case may be, and (B) any waiver, amendment or modification of
this Agreement that by its terms affects the rights or duties under this Agreement of Lenders under
one Tranche (but not of Lenders under the other Tranche) may be effected by an agreement or
agreements in writing entered into by the Company and requisite
percentage in interest of the Lenders under the affected Tranche. Notwithstanding the
foregoing, (A) any provision of this Agreement may be amended by an agreement in writing entered
into by the Company, the Required Lenders and the Administrative Agent (and, if their rights or
obligations are affected thereby, the Issuing Banks and the Swingline Lender) if (1) by the terms
of such agreement the Commitments of each Lender not consenting to the amendment provided for
therein shall terminate upon the effectiveness of such amendment and (2) at the time such amendment
becomes effective, each Lender not consenting thereto receives payment in full of the principal of
and interest accrued on each Loan made and B/A accepted by it and all other amounts owing to it or
accrued for its account under this Agreement and (B) any amendment of the definition of the term
“Applicable Rate” pursuant to the last sentence of such definition shall require only the written
consent of the Company and the Required Lenders.



SECTION 11.03. Expenses; Indemnity; Damage Waiver. (a) The Company shall pay (i)
all reasonable out-of-pocket expenses incurred by the Administrative Agent, the Arrangers and their
Affiliates, including the reasonable fees, charges and disbursements of outside counsel for the
Administrative Agent, the Arrangers and their Affiliates, in connection with the structuring,
arrangement and syndication of the credit facilities provided for herein, the preparation and
administration of the Loan Documents or any amendments, modifications or waivers of the provisions
thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii)
all reasonable out-of-pocket expenses incurred by the Issuing Banks in connection with the
issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment
thereunder and (iii) all out-of-pocket expenses incurred by the Administrative Agent or any
Arranger, Issuing Bank or Lender, including the fees, charges and disbursements of any outside
counsel for the Administrative Agent or such Arranger, Issuing Bank or Lender, in connection with
the enforcement or protection of its rights in connection with the Loan Documents, including its
rights under this Section, or in connection with the Loans made, the B/As accepted and purchased or
the Letters of Credit issued hereunder, including all such out-of-pocket expenses incurred during
any workout, restructuring or negotiations in respect of such Loans, B/As or Letters of Credit.



(b) The Company shall indemnify the Administrative Agent, each Arranger, each Issuing Bank
and each Lender, and each Related Party of any of the foregoing Persons (each such Person being
called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all
losses, claims, damages, penalties, liabilities and related expenses, including the reasonable
fees, charges and disbursements of any outside counsel for any Indemnitee, incurred by or asserted
against any Indemnitee arising out of, in connection with, or as a result of (i) the structuring,
arrangement and syndication of the credit facilities provided for herein, (ii) the execution or
delivery of any Loan Document or any other agreement or instrument contemplated hereby, the
performance by the parties to the Loan Documents of their respective obligations thereunder or the
consummation of the Transactions or any other transactions contemplated hereby, (iii) any Loan, B/A
or Letter of Credit or the use of the proceeds therefrom (including any refusal by an Issuing Bank
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payment under a Letter of Credit if the documents presented in connection
with such demand do not strictly comply with the terms of such Letter of Credit), (iv) any
Environmental Liability related in any way to the Company or any of the Subsidiaries or (v) any
actual or prospective claim, litigation, investigation or proceeding relating to any of the
foregoing, whether based on contract, tort or any other theory and regardless of whether initiated
by any Indemnitee, any party hereto or a third party or whether any Indemnitee is a party thereto;
provided that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, penalties, liabilities or related expenses are determined by a
court of competent jurisdiction by final and nonappealable judgment to have resulted from (A) the
gross negligence or willful misconduct of such Indemnitee or (B) the breach by such Indemnitee in
bad faith of its obligations under the Loan Documents.



(c) To the extent that the Company fails to pay any amount required to be paid by it to the
Administrative Agent (or any sub-agent thereof) or any Issuing Bank or the Swingline Lender, or
any Related Party of any of the foregoing, under paragraph (a) or (b) of this Section, each Lender
severally agrees to pay to the Administrative Agent (or any such sub-agent), such Issuing Bank or
the Swingline Lender, or such Related Party, as the case may be, such Lender’s pro
rata share (determined as of the time that the applicable unreimbursed expense or indemnity
payment is sought) of such unpaid amount; provided that the unreimbursed expense or
indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by
or asserted against the Administrative Agent (or such sub-agent), such Issuing Bank or the
Swingline Lender in its capacity as such, or against any Related Party of any of the foregoing
acting for the Administrative Agent (or any such sub-agent), any Issuing Bank or the Swingline
Lender in connection with such capacity. For purposes of this paragraph, a Lender’s “pro rata
share” shall be determined based upon its share of the sum of the aggregate Revolving Credit
Exposures and unused Commitments at the time (or most recently outstanding and in effect).



(d) To the extent permitted by applicable law, the Borrowers shall not assert, and hereby
waive, any claim against any Indemnitee (i) for any damages arising from the use by others of
information or other materials obtained through telecommunications, electronic or other information
transmission systems (including the Internet), or (ii) on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out
of, in connection with, or as a result of, this Agreement or any agreement or instrument
contemplated hereby, the Transactions, any Loan, B/A or Letter of Credit or the use of the proceeds
thereof.



(e) All amounts due under this Section shall be payable promptly after written demand
therefor.



SECTION 11.04. Successors and Assigns. (a) The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby (including any Affiliate of any Issuing Bank that issues any Letter of
Credit), except that the Borrowers may not assign or otherwise transfer any of their rights or
obligations hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by any Borrower without such consent shall be null and void). Nothing in
this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the
parties hereto, their respective successors and assigns permitted hereby (including any Affiliate
of any Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in
paragraph (f) of this Section), the Arrangers, the Syndication Agents, the Documentation Agents
and, to the extent expressly contemplated hereby, the sub-agents of the Administrative Agent and
the Related Parties of any of the Administrative Agent, the Arrangers, the Syndication Agents, the
Documentation Agents, any Issuing Bank and any Lender) any legal or equitable right, remedy or
claim under or by reason of this Agreement.


 


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(b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may
assign to one or more Eligible Assignees all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitments under any Tranche and the Loans and other
amounts at the time owing to it under any Tranche) with the prior written consent (such consent not
to be unreasonably withheld) of:




(A) the Company; provided that (x) no consent of the Company shall be required
for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event
of Default has occurred and is continuing, any other assignee, and (y) the Company shall be
deemed to have consented to any such assignment unless it shall object thereto by written
notice to the Administrative Agent within five Business Days after having received
notice thereof;




(B)    the Administrative Agent;




(C)    each Issuing Bank; and




(D)    the Swingline Lender.




(ii) Assignments shall be subject to the following additional conditions:




(A) except in the case of an assignment to a Lender or an Affiliate of a Lender or an
assignment of the entire remaining amount of any Commitment of the assigning Lender, the
amount of each Commitment of the assigning Lender subject to each such assignment
(determined as of the date the Assignment and Assumption with respect to such assignment is
delivered to the Administrative Agent) shall not be less than US$5,000,000 unless each of
the Company and the Administrative Agent shall otherwise consent; provided that no
such consent of the Company shall be required if an Event of Default has occurred and is
continuing;




(B) each partial assignment of a Commitment and extensions of credit under a Tranche
shall be made as an assignment of a proportionate part of all the assigning Lender’s rights
and obligations under such Tranche;




(C) the parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Assumption, together with a processing and recordation fee of
$3,500; and




(D) the assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an Administrative Questionnaire in which the assignee designates one or more credit
contacts to whom all syndicate-level information (which may contain material non-public
information about the Borrowers and their Related Parties or their securities) will be made
available and who may receive such information in accordance with the assignee’s compliance
procedures and applicable laws, including Federal, State and foreign securities laws.


 


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(c) Subject to acceptance and recording thereof pursuant to paragraph (e) of this Section,
from and after the effective date specified in each Assignment and Assumption, the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment
and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption,
be released from its obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of
Sections 2.15, 2.16, 2.17 and 11.03). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this paragraph shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (f) of this Section.



(d) The Administrative Agent, acting for this purpose as an agent of the Borrowers, shall
maintain at one of its offices in The City of New York a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the names and addresses of
the Lenders, and the Commitments of, and principal amounts owing to, each Lender pursuant to the
terms hereof from time to time (the “Register”). The entries in the Register shall be
conclusive, and the Borrowers, the Administrative Agent, the Issuing Banks and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register
shall be available for inspection by any Borrower, Issuing Bank and Lender at any reasonable time
and from time to time upon reasonable prior notice.



(e) Upon its receipt of a duly completed Assignment and Assumption executed by an assigning
Lender and an assignee, the assignee’s completed Administrative Questionnaire (unless the assignee
shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph
(b) of this Section and any written consent to such assignment required by paragraph (b) of this
Section, the Administrative Agent shall accept such Assignment and Assumption and record the
information contained therein in the Register. No assignment shall be effective for purposes of
this Agreement unless it has been recorded in the Register as provided in this paragraph.



(f) Any Lender may, without the consent of the Company, the Administrative Agent, the Issuing
Banks or any other Lender, sell participations to one or more banks or other entities (each a
“Participant”) in all or a portion of such Lender’s rights and/or obligations under this
Agreement (including all or a portion of its Commitments and its Loans and other extensions of
credit hereunder); provided that (i) such Lender’s obligations under this Agreement shall
remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations and (iii) the Borrowers, the Administrative Agent, the Issuing
Banks and the other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender’s rights and obligations under this Agreement. Any agreement or
instrument pursuant to which a Lender sells such a participation shall provide that such Lender
shall retain the sole right to enforce the Loan Documents and to approve any amendment,
modification or waiver of any provision of the Loan Documents; provided that such agreement
or instrument may provide that such Lender will not, without the consent of the Participant, agree
to any amendment, modification or waiver described in the first proviso to Section 11.02(b) that
affects such Participant. Each Borrower agrees that each Participant shall be entitled to the
benefits of Sections 2.15, 2.16, 2.17 and 2.20 (subject to the requirements and limitations
therein, including the requirements under Section 2.17(f) (it being understood that the
documentation required under Section 2.17(f) shall be delivered to the participating Lender)) to
the same extent as if it were a Lender and had acquired its interest by assignment pursuant to
paragraph (b) of this Section; provided that such Participant (A) agrees to be subject to
the provisions of Sections 2.18 and 2.19 as if it were an assignee under paragraph (b) of this
Section; and (B) shall not be entitled to receive any greater payment under Sections 2.15, 2.17 or
2.20, with respect to any participation, than its participating Lender would have been entitled to
receive, except to the extent such entitlement to receive a greater payment results from a Change
in


 


85









 





Law that occurs after the Participant acquired the applicable participation. To the extent
permitted by law, each Participant also shall be entitled to the benefits of Section 11.08 as
though it were a Lender; provided such Participant agrees to be subject to Section 2.18(c)
as though it were a Lender. Each Lender that sells a participation shall, acting solely for this
purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name
and address of each Participant and the principal amounts (and stated interest) of each
Participant’s interest in the Loans or other obligations under this Agreement (the “Participant
Register”); provided no Lender shall have any obligation to disclose all or any portion
of the Participant Register to any Person (including the identity of any Participant or any
information relating to a Participant’s interest in any Commitments, Loans, Letters of Credit or
its other obligations under this Agreement) except to the extent that such disclosure is necessary
to establish that such
Commitment, Loan, Letter of Credit or other obligation is in registered form under Section
5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register
shall be conclusive absent manifest error, and such Lender shall treat each person whose name is
recorded in the Participant Register as the owner of such participation for all purposes of this
Agreement notwithstanding any notice to the contrary.



(g) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement to secure obligations of such Lender, including any pledge or
assignment to secure obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; provided that no such pledge or
assignment of a security interest shall release a Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.



SECTION 11.05. Survival. All covenants, agreements, representations and warranties
made by the Loan Parties in the Loan Documents and in the certificates or other instruments
delivered in connection with or pursuant to this Agreement or any other Loan Document shall be
considered to have been relied upon by the other parties hereto and shall survive the execution and
delivery of the Loan Documents and the making of any Loans, the acceptance and purchase of any B/As
and the issuance of any Letters of Credit, regardless of any investigation made by any such other
party or on its behalf and notwithstanding that the Administrative Agent, any Issuing Bank or any
Lender may have had notice or knowledge of any Default or incorrect representation or warranty at
the time any credit is extended hereunder, and shall continue in full force and effect as long as
the principal of or any accrued interest on any Loan or any fee or any other amount payable under
this Agreement is outstanding and unpaid or any Letter of Credit is outstanding and so long as the
Commitments have not expired or terminated. The provisions of Sections 2.15, 2.16, 2.17, 2.20 and
11.03 and Article VIII shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the Loans and B/As, the
expiration or termination of the Letters of Credit and the Commitments or the termination of this
Agreement or any provision hereof.



SECTION 11.06. Counterparts; Integration; Effectiveness. This Agreement may be
executed in counterparts (and by different parties hereto on different counterparts), each of which
shall constitute an original, but all of which when taken together shall constitute a single
contract. This Agreement, the other Loan Documents and any separate letter agreements with respect
to fees payable to the Administrative Agent or to the Arrangers and their Affiliates constitute the
entire contract among the parties relating to the subject matter hereof and supersede any and all
previous agreements and understandings, oral or written, relating to the subject matter hereof.
Except as provided in Section 4.01, this Agreement shall become effective when it shall have been
executed by the Administrative Agent and when the Administrative Agent shall have received
counterparts hereof which, when taken together, bear the signatures of each of the other parties
hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns, and the amendment and restatement of this Agreement
pursuant to the Amendment Agreement shall become effective as set forth in the Amendment Agreement.
Delivery of an executed counterpart of a signature page of this Agreement by facsimile or other
electronic imaging means shall be effective as delivery of a manually executed counterpart of this
Agreement.


 


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SECTION 11.07. Severability. Any provision of this Agreement held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such invalidity, illegality or unenforceability without affecting the validity, legality
and enforceability
of the remaining provisions hereof; and the invalidity of a particular provision in a
particular jurisdiction shall not invalidate such provision in any other jurisdiction.



SECTION 11.08. Right of Setoff. If an Event of Default shall have occurred and be
continuing, each Lender and each of its Affiliates is hereby authorized at any time and from time
to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general
or special, time or demand, provisional or final) at any time held and other obligations at any
time owing by such Lender or Affiliate to or for the credit or the account of the Company or any
Borrower against any of and all the obligations of the Company, whether in its capacity as a
Borrower or guarantor, or any other such Borrower now or hereafter existing under this Agreement
held by such Lender, irrespective of whether or not such Lender shall have made any demand under
this Agreement and although such obligations may be unmatured. The rights of each Lender under
this Section are in addition to other rights and remedies (including other rights of setoff) which
such Lender may have.



SECTION 11.09. Governing Law; Jurisdiction; Consent to Service of Process. (a)
This Agreement shall be construed in accordance with and governed by the law of the State of New
York.



(b) Each Borrower hereby irrevocably and unconditionally submits, for itself and its
property, to the exclusive jurisdiction of the Supreme Court of the State of New York sitting in
New York County and of the United States District Court of the Southern District of New York, and
any appellate court from any thereof, in any action or proceeding arising out of or relating to any
Loan Document, and each of the parties hereto hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be heard and determined in such New York
State or, to the extent permitted by law, in such Federal court. Each of the parties hereto agrees
that a final judgment in any such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in
this Agreement or any other Loan Document shall affect any right that the Administrative Agent, any
Issuing Bank or any Lender may otherwise have to bring any action or proceeding relating to this
Agreement or any other Loan Document against any Borrower or its properties in the courts of any
jurisdiction.



(c) Each Borrower hereby irrevocably and unconditionally waives, to the fullest extent it may
legally and effectively do so, any objection which it may now or hereafter have to the laying of
venue of any suit, action or proceeding arising out of or relating to this Agreement or any other
Loan Document in any court referred to in paragraph (b) of this Section. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such court.


 


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(d) Each Borrowing Subsidiary that is not a US Subsidiary hereby irrevocably designates,
appoints and empowers the Company (with a mandatory copy to the Philadelphia office of Morgan,
Lewis & Bockius LLP, having its address at 1701 Market Street, Philadelphia PA 19103, Attention of
Michael Pedrick, Esq.), as its process agent to receive for and on its behalf service of process in
any legal action or proceeding arising out of or relating to this Agreement. It is understood that
a copy of any such process served on the Company, as process agent, shall be promptly forwarded by
registered mail by the Person commencing such proceeding to such Borrowing Subsidiary at the
address specified in Section 11.01, but the failure of such Borrowing Subsidiary to receive such
copy shall not affect in any way the service of such process as aforesaid.



(e) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 11.01. Nothing in the Agreement or any other Loan Document will
affect the right of any party to this Agreement to serve process in any other manner permitted by
law.



SECTION 11.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT
OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION.



SECTION 11.11. Headings. Article and Section headings and the Table of Contents used
herein are for convenience of reference only, are not part of this Agreement and shall not affect
the construction of, or be taken into consideration in interpreting, this Agreement.



SECTION 11.12. Confidentiality. The Administrative Agent, each Issuing Bank and each
Lender agrees to maintain the confidentiality of the Information (as defined below), and will not
use such confidential Information for any purpose or in any manner except in connection with this
Agreement, except that Information may be disclosed (a) to its and its Affiliates’ directors,
officers, employees and agents, including accountants, legal counsel and other advisors (it being
understood that the Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information confidential), (b) to the extent
requested by any governmental, supervisory or regulatory authority purporting to have jurisdiction
over it or its Affiliates (including any self-regulatory authority, such as the National
Association of Insurance Commissioners) (it being understood that, other than in the case of any
request by any bank regulatory authority exercising examination or audit authority, it will to the
extent reasonably practicable provide the Company with an opportunity to request confidential
treatment from such authority), (c) to the extent required by applicable laws or regulations or by
any subpoena or similar legal process, (d) to any other party to this Agreement, (e) in connection
with the exercise of any remedies hereunder or any suit, action or proceeding relating to this
Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f)
subject to an agreement containing provisions substantially the same as those of this Section, to
(i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement or (ii) any actual or prospective counterparty (or its
advisors) to any swap or derivative transaction relating to the Company or any Subsidiary and its
obligations, (g) with the written consent of the Company, (h) to the extent such Information (i)
becomes publicly available other than as a result of a breach of this Section or any other
confidentiality agreement to which it is


 


88









 





party with the Company or any Subsidiary or (ii) becomes
available to the Administrative Agent, such Issuing Bank or such Lender on a nonconfidential basis
from a source other than the Company or (i) on a confidential basis to (i) any rating agency in
connection with the rating of the Company or its Subsidiaries or this Agreement or (ii) the CUSIP
Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP
numbers with respect to this Agreement. For the purposes of this Section, “Information”
means all confidential information received from the Company relating to the Company or its
businesses, other than any such information that is available to the Administrative Agent, any
Issuing Bank or any Lender on a nonconfidential basis prior to disclosure by the Company. Any
Person required to maintain the confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has exercised the same
degree of care to maintain the confidentiality of such Information as such Person would accord to
its own confidential information.



SECTION 11.13. Interest Rate Limitation. Notwithstanding anything herein to the
contrary, if at any time the interest rate applicable to any extension of credit hereunder,
together with all fees, charges and other amounts which are treated as interest on such extension
of credit under applicable law (collectively the “Charges”), shall exceed the maximum
lawful rate (the “Maximum Rate”) which may be contracted for, charged, taken, received or
reserved by the Lender that made such extension of credit in accordance with applicable law, the
rate of interest payable in respect of such extension of credit hereunder, together with all
Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful,
the interest and Charges that would have been payable in respect of such extension of credit but
were not payable as a result of the operation of this Section shall be cumulated and the interest
and Charges payable to such Lender in respect of other extensions of credit or periods shall be
increased (but not above the Maximum Rate therefor) until such cumulated amount, together with
interest thereon at the Federal Funds Effective Rate to the date of repayment, shall have been
received by such Lender.



SECTION 11.14. Releases of Guarantors. (a) Notwithstanding any contrary provision
herein or in any other Loan Document, if the Company shall request the release under the Guarantee
Agreement of any Guarantor that shall have been sold in or disposed of (or will, simultaneously
with such release, be sold or disposed of) to a Person or Persons (other than the Company and the
Subsidiaries) pursuant to any transaction permitted hereby and shall deliver to the Administrative
Agent a certificate to the effect that such sale complied or will comply with the terms of this
Agreement, the Administrative Agent, if satisfied in its reasonable judgment that the applicable
certificate is correct, shall, without the consent of any Lender, execute and deliver all such
releases and other instruments, and take all such further actions, as shall be necessary to effect
the release of such Guarantor.



(b) Without limiting the provisions of Section 11.03, the Company shall reimburse the
Administrative Agent and the Lenders for all costs and expenses, including attorney’s fees and
disbursements, incurred by any of them in connection with any action contemplated by this Section.



SECTION 11.15. USA PATRIOT Act. Each Lender hereby notifies the Borrowers that
pursuant to the requirements of the USA PATRIOT Act, it is required to obtain, verify and record
information that identifies the Borrowers, which information includes the names and addresses of
the Borrowers and other information that will allow such Lender to identify the Borrowers in
accordance with the USA PATRIOT Act.


 


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SECTION 11.16. Termination of Guarantee Agreement. Notwithstanding any other
provision of this Agreement, if at any time (a) no Subsidiary shall be liable for the Senior Notes
or any other Material Indebtedness (other than Indebtedness referred to in the first parenthetical
in Section 6.01(a) or in clause (i) or (ii) of Section 6.01(b)), whether as a primary obligor or as
a guarantor, and (b) the Company shall have delivered to the Administrative Agent a certificate
confirming that the condition set forth in the preceding clause (a) shall be satisfied
simultaneously with the termination of the Guarantee Agreement, the Guarantee Agreement shall
automatically terminate without any further action or consent by any party hereto or to the
Guarantee Agreement.



SECTION 11.17. Non-Public Information. (a) Each Lender acknowledges that all
information furnished to it pursuant to this Agreement by the Company or on its behalf and relating
to the Company, the Subsidiaries or their businesses may include material non-public information
concerning the Company and the Subsidiaries or their securities, and confirms that it has developed
compliance procedures regarding the use of material non-public information and that it will handle
such material non-public information in accordance with the procedures and applicable law,
including Federal, state and foreign securities laws.



(b) All such information, including requests for waivers and amendments, furnished by the
Company or the Administrative Agent pursuant to, or in the course of administering, this Agreement
will be syndicate-level information, which may contain material non-public information about the
Company and the Subsidiaries and their securities. Accordingly, each Lender represents to the
Company and the Administrative Agent that it has identified in its Administrative Questionnaire a
credit contact who may receive information that may contain material non-public information in
accordance with its compliance procedures and applicable law, including Federal, state and foreign
securities laws.



SECTION 11.18. No Fiduciary Duty. The Company agrees that in connection with all
aspects of the Transactions and any communications in connection therewith, the Company and its
Affiliates, on the one hand, and the Administrative Agent, the Arrangers, the Issuing Banks, the
Lenders and their Affiliates, on the other hand, will have a business relationship that does not
create, by implication or otherwise, any fiduciary duty on the part of the Administrative Agent,
the Arrangers, the Issuing Banks, the Lenders or their Affiliates, and no such duty will be deemed
to have arisen in connection with any such Transactions or communications.



SECTION 11.19. Conversion of Currencies. (a) If, for the purpose of obtaining
judgment in any court, it is necessary to convert a sum owing hereunder or pursuant to the
Guarantee Agreement in one currency into another currency, each party hereto agrees, to the fullest
extent that it may effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures in the relevant jurisdiction the first currency could be
purchased with such other currency on the Business Day immediately preceding the day on which final
judgment is given.



(b) The obligations of each party hereto in respect of any sum due to any other party hereto
or any holder of the obligations owing hereunder (the “Applicable Creditor”) shall,
notwithstanding any judgment in a currency (the “Judgment Currency”) other than the
currency in which such sum is stated to be due hereunder (the “Agreement Currency”), be
discharged only to the extent that, on the Business Day following receipt by the Applicable
Creditor of any sum adjudged to be so due in the Judgment Currency, the Applicable Creditor may in
accordance with normal banking procedures in the relevant jurisdiction purchase the Agreement
Currency with the Judgment Currency; if the amount of the Agreement Currency so purchased is less
than the sum originally due to the Applicable Creditor in the Agreement Currency, the Company
agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Applicable
Creditor against such loss. The obligations of each party hereto contained in this Section shall
survive the termination of this Agreement and the payment of all other amounts owing hereunder.




 


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Schedule 2.01




Commitments




Tranche One




	 	 	 	 	 
	Lender	 	Commitment	 
	JPMorgan Chase Bank, N.A.
	 	$	65,000,000.00	 
	Bank of America N.A.
	 	$	65,000,000.00	 
	Wells Fargo Bank, National Association
	 	$	65,000,000.00	 
	The Bank of Nova Scotia
	 	$	55,000,000.00	 
	The Bank of Tokyo-Mitsubishi UFJ, Ltd.
	 	$	55,000,000.00	 
	U.S. Bank National Association
	 	$	55,000,000.00	 
	Citibank, N.A.
	 	$	40,000,000.00	 
	Mizuho Corporate Bank, Ltd.
	 	$	40,000,000.00	 
	PNC Bank, National Association
	 	$	40,000,000.00	 
	TD Bank N.A.
	 	$	25,000,000.00	 
	 
	 	 	 
	 
	 	 	 	 
	TOTAL
	 	$	505,000,000	 
	 
	 	 	 






Tranche Two




	 	 	 	 	 
	Lender	 	Commitment	 
	Deutsche Bank AG New York Branch
	 	$	42,000,000.00	 
	Goldman Sachs Bank USA
	 	$	42,000,000.00	 
	Credit Suisse AG Cayman Islands Branch
	 	$	42,000,000.00	 
	KeyBank National Association
	 	$	25,000,000.00	 
	The Bank of New York Mellon
	 	$	25,000,000.00	 
	JPMorgan Chase Bank, N.A.
	 	$	2,333,334.00	 
	Bank of America N.A.
	 	$	2,333,333.00	 
	Wells Fargo Bank, National Association
	 	$	2,333,333.00	 
	Citibank, N.A.
	 	$	2,000,000.00	 
	Mizuho Corporate Bank, Ltd.
	 	$	2,000,000.00	 
	PNC Bank, National Association
	 	$	2,000,000.00	 
	The Bank of Nova Scotia
	 	$	2,000,000.00	 
	The Bank of Tokyo-Mitsubishi UFJ, Ltd.
	 	$	2,000,000.00	 
	U.S. Bank National Association
	 	$	2,000,000.00	 
	 
	 	 	 
	 
	 	 	 	 
	TOTAL
	 	$	195,000,000	 
	 
	 	 	 





 












 





Schedule 2.05




Existing Letters of Credit




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Expiry	 	 
	Issuing Bank	 	Tranche	 	L/C Number	 	Beneficiary	 	Date	 	Outstanding
	JPMorgan Chase Bank, N.A.

	 	Two
	 	P211787B
	 	Hartford Fire

Insurance Company
	 	11/07/2011
	 	$	4,300,000.00	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	JPMorgan Chase Bank, N.A.

	 	Two
	 	P238313B
	 	Royal Bank of Canada
	 	11/07/2011
	 	$	882,289.00	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	JPMorgan Chase Bank, N.A.

	 	Two
	 	P217839A
	 	Royal Indemnity

Company
	 	09/24/2012
	 	$	390,000.00	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	JPMorgan Chase Bank, N.A.

	 	Two
	 	P200905A
	 	The Travelers

Indemnity Company
	 	05/05/2012
	 	$	100,000.00	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	JPMorgan Chase Bank, N.A.

	 	Two
	 	P249302A
	 	St. Paul Fire and
Marine
	 	05/01/2012
	 	$	400,000.00	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	JPMorgan Chase Bank, N.A.

	 	Two
	 	TPTS-337485
	 	ACE American
Insurance Co.
	 	06/25/2012
	 	$	267,314.00	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	JPMorgan Chase Bank, N.A.

	 	Two
	 	TPTS-736090
	 	Arch Insurance

Company
	 	04/30/2012
	 	$	3,990,000.00	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	JPMorgan Chase Bank, N.A.

	 	One
	 	TPTS-249238
	 	Corp D’Appro.
	 	04/11/2012
	 	$	40,846.00	 
	 

	 	 	 	 	 	 	 	TOTAL
	 	$	10,370,449.00	 






	 	 	 	 	 
	Issuing Bank	 	LC Commitment	 
	 
	 	 	 	 
	JPMorgan Chase Bank, N.A.
	 	$	150,000,000.00	 
	 
	 	 	 	 
	TOTAL
	 	$	150,000,000.00