exv10w1






Exhibit 10.1




 





SENIOR BRIDGE TERM LOAN AGREEMENT



Dated as of November 23, 2010



among



McKESSON CORPORATION,

the Borrower,



BANK OF AMERICA, N.A.,

as Administrative Agent



and



The Other Lenders Party Hereto



JPMORGAN CHASE BANK, N.A.,

Syndication Agent



MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED



and



J.P. MORGAN SECURITIES LLC,



Joint Bookrunners and Joint Lead Arrangers



 




 









 





TABLE OF CONTENTS




	 	 	 	 	 
	Section	 	Page	 
	ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS
	 	 	1	 
	 
	 	 	 	 
	1.01 Defined Terms
	 	 	1	 
	1.02 Other Interpretive Provisions
	 	 	19	 
	1.03 Accounting Terms
	 	 	19	 
	1.04 Rounding
	 	 	20	 
	1.05 References to Agreements and Laws
	 	 	20	 
	1.06 Times of Day
	 	 	20	 
	 
	 	 	 	 
	ARTICLE II. THE COMMITMENTS AND LOANS
	 	 	20	 
	 
	 	 	 	 
	2.01 Loans
	 	 	20	 
	2.02 Borrowings, Conversions and Continuations of Loans
	 	 	20	 
	2.03 [RESERVED]
	 	 	22	 
	2.04 [RESERVED]
	 	 	22	 
	2.05 Prepayments
	 	 	22	 
	2.06 Voluntary Termination or Reduction of Commitments
	 	 	23	 
	2.07 Repayment of Loans
	 	 	23	 
	2.08 Interest
	 	 	23	 
	2.09 Fees
	 	 	23	 
	2.10 Computation of Interest and Fees
	 	 	24	 
	2.11 Evidence of Debt
	 	 	24	 
	2.12 Payments Generally
	 	 	25	 
	2.13 Sharing of Payments
	 	 	26	 
	2.14 Defaulting Lenders
	 	 	27	 
	 
	 	 	 	 
	ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY
	 	 	27	 
	 
	 	 	 	 
	3.01 Taxes
	 	 	27	 
	3.02 Illegality
	 	 	28	 
	3.03 Inability to Determine Rates
	 	 	29	 
	3.04 Increased Cost and Reduced Return; Capital Adequacy
	 	 	29	 
	3.05 Funding Losses
	 	 	30	 
	3.06 Matters Applicable to all Requests for Compensation
	 	 	30	 
	3.07 Survival
	 	 	30	 






i









 






	 	 	 	 	 
	Section	 	Page	 
	ARTICLE IV. CONDITIONS PRECEDENT
	 	 	31	 
	 
	 	 	 	 
	4.01 Conditions Precedent to Loans on the Closing Date
	 	 	31	 
	4.02 Conditions Precedent to Subsequent Loans
	 	 	33	 
	 
	 	 	 	 
	ARTICLE V. REPRESENTATIONS AND WARRANTIES
	 	 	33	 
	 
	 	 	 	 
	5.01 Corporate Existence and Power
	 	 	33	 
	5.02 Corporate Authorization; No Contravention
	 	 	34	 
	5.03 Governmental Authorization
	 	 	34	 
	5.04 Binding Effect
	 	 	34	 
	5.05 Litigation
	 	 	34	 
	5.06 No Default
	 	 	34	 
	5.07 Use of Proceeds; Margin Regulations
	 	 	35	 
	5.08 Financial Condition
	 	 	35	 
	5.09 Regulated Entities
	 	 	35	 
	5.10 No Burdensome Restrictions
	 	 	35	 
	5.11 Subsidiaries and Certain Liens As of the Effective Date
	 	 	35	 
	5.12 Disclosed Matters
	 	 	35	 
	 
	 	 	 	 
	ARTICLE VI. AFFIRMATIVE COVENANTS
	 	 	36	 
	 
	 	 	 	 
	6.01 Financial Statements
	 	 	36	 
	6.02 Certificates; Other Information
	 	 	36	 
	6.03 Notices
	 	 	37	 
	6.04 Preservation of Existence, Etc
	 	 	38	 
	6.05 Maintenance of Insurance
	 	 	39	 
	6.06 Payment of Taxes
	 	 	39	 
	6.07 Compliance with Laws
	 	 	39	 
	6.08 Books and Records
	 	 	39	 
	6.09 Inspection Rights
	 	 	39	 
	6.10 Use of Proceeds
	 	 	39	 
	 
	 	 	 	 
	ARTICLE VII. NEGATIVE COVENANTS
	 	 	39	 
	 
	 	 	 	 
	7.01 Liens
	 	 	40	 
	7.02 Consolidations and Mergers
	 	 	41	 
	7.03 Use of Proceeds
	 	 	41	 
	7.04 Maximum Debt to Capitalization Ratio
	 	 	41	 
	7.05 Swap Contracts
	 	 	41	 






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	Section	 	Page	 
	ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES
	 	 	42	 
	 
	 	 	 	 
	8.01 Events of Default
	 	 	42	 
	8.02 Remedies Upon Event of Default
	 	 	43	 
	8.03 Application of Funds
	 	 	44	 
	 
	 	 	 	 
	ARTICLE IX. ADMINISTRATIVE AGENT
	 	 	45	 
	 
	 	 	 	 
	9.01 Appointment and Authorization of Administrative Agent
	 	 	45	 
	9.02 Rights as a Lender
	 	 	45	 
	9.03 Exculpatory Provisions
	 	 	45	 
	9.04 Delegation of Duties
	 	 	46	 
	9.05 Reliance by Administrative Agent
	 	 	46	 
	9.06 Successor Administrative Agent
	 	 	47	 
	9.07 Non-Reliance on Administrative Agent and Other Lenders
	 	 	47	 
	9.08 No Other Duties, Etc
	 	 	48	 
	9.09 Administrative Agent May File Proofs of Claim
	 	 	48	 
	 
	 	 	 	 
	ARTICLE X. [RESERVED]
	 	 	48	 
	 
	 	 	 	 
	ARTICLE XI. MISCELLANEOUS
	 	 	48	 
	 
	 	 	 	 
	11.01 Amendments, Etc
	 	 	48	 
	11.02 Notices and Other Communications; Facsimile Copies
	 	 	49	 
	11.03 No Waiver; Cumulative Remedies
	 	 	51	 
	11.04 Expenses; Indemnity; Damage Waiver
	 	 	52	 
	11.05 Payments Set Aside
	 	 	53	 
	11.06 Successors and Assigns
	 	 	54	 
	11.07 Treatment of Certain Information; Confidentiality
	 	 	57	 
	11.08 Set-off
	 	 	58	 
	11.09 Interest Rate Limitation
	 	 	58	 
	11.10 Counterparts; Effectiveness
	 	 	58	 
	11.11 Integration
	 	 	58	 
	11.12 Survival of Representations and Warranties
	 	 	59	 
	11.13 Severability
	 	 	59	 
	11.14 Tax Forms
	 	 	59	 
	11.15 Replacement of Lenders
	 	 	61	 
	11.16 Governing Law
	 	 	61	 
	11.17 Waiver of Right to Trial by Jury
	 	 	62	 






iii









 






	 	 	 	 	 
	Section	 	Page	 
	11.18 No Advisory or Fiduciary Responsibility
	 	 	62	 
	11.19 USA Patriot Act Notice
	 	 	63	 






iv









 






SCHEDULES




	 	 	 

	2.01

	 	Commitments
	 
	 	 
	5.11

	 	Subsidiaries and Indebtedness Secured by Liens
	 
	 	 
	11.02

	 	Administrative Agent’s Office, Certain Addresses for Notices






EXHIBITS




	 	 	 
	 	 	Form of
	 
	A

	 	Loan Notice
	 
	 	 
	B

	 	Note
	 
	 	 
	C

	 	Compliance Certificate
	 
	 	 
	D

	 	Assignment and Assumption







v











 





SENIOR BRIDGE TERM LOAN AGREEMENT




     This SENIOR BRIDGE TERM LOAN AGREEMENT (“Agreement”) is entered into as of November
23, 2010, among McKESSON CORPORATION, a Delaware corporation (the “Borrower”), each lender
from time to time party hereto (collectively, the “Lenders” and each individually, a
“Lender”), and BANK OF AMERICA, N.A., as Administrative Agent.



     WHEREAS, in connection with the Transactions (as defined below), the Borrower has requested
that the Lenders and the Administrative Agent provide the Bridge Facility (as defined below), and
the Lenders and the Administrative Agent are willing to do so on the terms and conditions set forth
herein.



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



ARTICLE I.

DEFINITIONS AND ACCOUNTING TERMS




     1.01 Defined Terms. As used in this Agreement, the following terms shall have the
meanings set forth below:



     “Acquisition” means the acquisition by the Borrower or one of its Subsidiaries of the
Company pursuant to the Acquisition Agreement.



     “Acquisition Agreement” means the agreement and plan of merger dated as of November 1,
2010 among the Borrower, Utah Acquisition Corporation, the Company and Utah Stockholders’ Agent
LLC.



     “Administrative Agent” means Bank of America, N.A. in its capacity as administrative
agent under any of the Loan Documents, or any successor administrative agent.



     “Administrative Agent’s Office” means the Administrative Agent’s address and, as
appropriate, account as set forth on Schedule 11.02, or such other address or account as
the Administrative Agent may from time to time notify the Borrower and the Lenders.



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



     “Affiliate” means, with respect to any 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. “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.



     “Agent Parties” has the meaning specified in Section 11.02(c).



     “Aggregate Commitments” means the aggregate Commitments of all the Lenders.



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     “Agreement” means this Senior Bridge Term Loan Agreement.



     “Applicable Rate” means, from time to time, the rate per annum, corresponding to the
applicable date and Debt Rating as set forth below:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Debt Ratings
	 	 	S&P/Moody’s/Fitch
	 	 	Pricing Level I:	 	 	 	 	 	 	 	 	 	Pricing Level III:
	 	 	A-/A3/A-	 	Pricing Level II:	 	BBB/Baa2/BBB
	 	 	(or higher)	 	BBB+/Baa1/BBB+	 	(or lower)
	 	 	Euro-	 	Base	 	Euro-	 	Base	 	Euro-	 	Base
	 	 	Dollar	 	Rate	 	Dollar	 	Rate	 	Dollar	 	Rate
	Closing Date until
89 days following
the Closing Date
	 	 	1.50	%	 	 	0.50	%	 	 	1.75	%	 	 	0.75	%	 	 	2.00	%	 	 	1.00	%
	90th Day
following the
Closing Date until
179th
day following the
Closing Date
	 	 	2.00	%	 	 	1.00	%	 	 	2.25	%	 	 	1.25	%	 	 	2.50	%	 	 	1.50	%
	180th
day following the
Closing Date until
269th

day following the
Closing Date
	 	 	2.50	%	 	 	1.50	%	 	 	2.75	%	 	 	1.75	%	 	 	3.00	%	 	 	2.00	%
	From the
270th
day following the
Closing Date and
thereafter
	 	 	3.00	%	 	 	2.00	%	 	 	3.25	%	 	 	2.25	%	 	 	3.50	%	 	 	2.50	%






     “Debt Rating” means, as of any date of determination, the available ratings as
determined by S&P, Moody’s and/or Fitch (collectively, the “Debt Ratings”) of the
Borrower’s non-credit-enhanced, senior unsecured long-term debt; provided that (a) if the
Borrower shall maintain a rating of its non-credit-enhanced, senior unsecured long-term debt from
only two of S&P, Moody’s and Fitch then the higher of such Debt Ratings shall apply (with the Debt
Rating for Pricing Level I being the highest and the Debt Rating for Pricing Level III being the
lowest), unless there is a split in Debt Ratings of more than one Pricing Level, in which case the
Applicable Rate shall be determined by reference to a Debt Rating that is one Pricing Level lower
than the higher of the Borrower’s two Debt Ratings, (b) if the Borrower shall maintain a Debt
Rating of its non-credit-enhanced, senior unsecured long-term debt from only one of S&P, Moody’s
and Fitch, then that single Debt Rating shall apply, (c) if the Borrower shall maintain a Debt
Rating of its non-credit-enhanced, senior unsecured long-term debt from all three of S&P, Moody’s
and Fitch and there is a difference in such Debt Ratings, (i) if there is a difference of only one
Pricing Level between the highest and lowest of such Debt Ratings, the Applicable Rate shall be
determined by reference to the higher Debt Rating, and (ii) if there is a difference of more than
one Pricing Level between any of the Debt Ratings, and if two Debt Ratings are



2









 




equivalent and the third Debt Rating is lower, the Applicable Rate shall be determined by
reference to the higher Debt Rating; otherwise the Applicable Rate shall be determined by reference
to a Debt Rating that is one Pricing Level below the highest of the Borrower’s three Debt Ratings
and (d) if the Borrower shall fail to maintain any Debt Rating of its non-credit-enhanced, senior
unsecured long-term debt from any of S&P, Moody’s and Fitch, then the Applicable Rate shall be the
same as the Applicable Rate that would apply if the Borrower had the lowest Debt Ratings set forth
in the Applicable Rate grid above.




     The Applicable Rate as of the Effective Date shall be 1.50% per annum with respect to
Eurodollar Rate Loans and 0.50% per annum with respect to Base Rate Loans. Each change in the
Applicable Rate resulting from a publicly announced change in the Debt Rating shall be effective,
in the case of an upgrade, during the period commencing on the date of delivery by the Borrower to
the Administrative Agent of notice thereof pursuant to Section 6.03(e) and ending on the
date immediately preceding the effective date of the next such change and, in the case of a
downgrade, during the period commencing on the date of the public announcement thereof and ending
on the date immediately preceding the effective date of the next such change.



     “AA Fee Letter” means the letter agreement, dated November 1, 2010, between the
Administrative Agent and the Borrower.



     “Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a
Lender.



     “Arrangers” means Merrill Lynch, Pierce, Fenner & Smith Incorporated and J.P. Morgan
Securities LLC, in their capacities as joint bookrunners and joint lead arrangers.



     “Assignment and Assumption” means an Assignment and Assumption substantially in the
form of Exhibit D.



     “Attorney Costs” means and includes all fees, expenses and disbursements of any law
firm or other external counsel and, without duplication, the allocated cost of internal legal
services and all expenses and disbursements of internal counsel; provided that no fees,
expenses or disbursements shall qualify as Attorney Costs unless written evidence substantiating
such fees, expenses and disbursements is available to the Borrower upon request.



     “Attributable Indebtedness” means, on any date, (a) in respect of any capital lease of
any Person, the capitalized amount thereof that would appear on a balance sheet of such Person
prepared as of such date in accordance with GAAP, and (b) in respect of any Synthetic Lease
Obligation, the capitalized amount of the remaining lease payments under the relevant lease that
would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if
such lease were accounted for as a capital lease.



     “Audited Financial Statements” means the audited consolidated balance sheet of the
Borrower and its Subsidiaries for the fiscal year ended March 31, 2010, and the related
consolidated statements of operations, shareholders’ equity and cash flows for such fiscal year of
the Borrower and its Subsidiaries, including the notes thereto.



3









 





     “Availability Period” means the period from and including the Closing Date to and
including January 31, 2011; provided, however, that in the event the End Date is extended pursuant
to Section 7.1(b) of the Acquisition Agreement, such latter date shall be extended to the
31st day following the End Date, but in no event later than May 31, 2011.



     “Bank of America” means Bank of America, N.A. and its successors.



     “Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a)
the Federal Funds Rate plus 1/2 of 1%, (b) the rate of interest in effect for such day as publicly
announced from time to time by Bank of America as its “prime rate” and (c) the Eurodollar Rate plus
1%. The “prime rate” is a rate set by Bank of America based upon various factors including Bank of
America’s costs and desired return, general economic conditions and other factors, and is used as a
reference point for pricing some loans, which may be priced at, above, or below such announced
rate. Any change in such rate announced by Bank of America shall take effect at the opening of
business on the day specified in the public announcement of such change.



     “Base Rate Loan” means a Loan that bears interest based on the Base Rate.



     “Borrower” has the meaning specified in the introductory paragraph hereto.



     “Borrower Materials” has the meaning specified in Section 6.02.



     “Borrowing” means a borrowing consisting of simultaneous Loans of the same Type made,
converted or continued on the same date and, in the case of Eurodollar Rate Loans, having the same
Interest Period made by each of the Lenders pursuant to Section 2.01.



     “Bridge Facility” means the Commitments and the Loans made hereunder.



     “Business Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact closed in, New York
City, New York, Charlotte, North Carolina or San Francisco, California and, if such day relates to
any Eurodollar Rate Loan, means any such day on which dealings in Dollar deposits are conducted by
and between banks in the London interbank eurodollar market.



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



     (a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its
Subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary
or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and
13d-5 under the Securities Exchange Act of 1934, directly or indirectly, of 35% or more of the
equity securities of the Borrower entitled to vote for members of the board of directors or
equivalent governing body of the Borrower on a fully-diluted basis; or



     (b) during any period of 12 consecutive months, a majority of the members of the board of
directors or other equivalent governing body of the Borrower cease to be composed of individuals
(i) who were members of that board or equivalent governing body on the first day of such period,
(ii) whose election or nomination to that board or equivalent governing body was



4









 




approved by individuals referred to in clause (i) above constituting at the time of such
election or nomination at least a majority of that board or equivalent governing body or (iii)
whose election or nomination to that board or other equivalent governing body was approved by
individuals referred to in clauses (i) and (ii) above constituting at the time of such election or
nomination at least a majority of that board or equivalent governing body (excluding, in the case
of both clause (ii) and clause (iii), any individual whose initial nomination for, or assumption of
office as, a member of that board or equivalent governing body occurs as a result of an actual or
threatened solicitation of proxies or consents for the election or removal of one or more directors
by any person or group other than a solicitation for the election of one or more directors by or on
behalf of the board of directors).




     “Closing Date” means the date on which the Acquisition is consummated.



     “Code” means the Internal Revenue Code of 1986.



     “Commitment” means, as to each Lender, its obligation to make Loans to the Borrower
pursuant to Article II, in an aggregate principal amount not to exceed the amount set forth
opposite such Lender’s name on Schedule 2.01 or in the Assignment and Assumption pursuant
to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from
time to time in accordance with this Agreement.



     “Company” means US Oncology Holdings, Inc., a Delaware corporation.



     “Company Bonds” means (i) the Senior Unsecured Floating Rate PIK Toggle Notes due 2012
issued by the Company; (ii) the 10.75% Senior Subordinated Notes due 2014 issued by US Oncology
Inc.; and (iii) the 9.125% Senior Secured Notes due 2017 issued by US Oncology Inc., in each case
outstanding as of the Closing Date.



     “Company Material Adverse Effect” means any event, change, effect, circumstance or
development that (x) is or could reasonably be expected to be, either individually or in the
aggregate, materially adverse to the condition (financial or otherwise), properties, assets,
prospects, liabilities, business, operations or results of operations of the Company or any of its
Subsidiaries or (y) would, either individually or in the aggregate, prevent or materially alter or
delay the Company’s ability to consummate the Acquisition; provided, however, that in determining
whether a Company Material Adverse Effect has occurred, there shall be excluded any effect on the
Company and any of its Subsidiaries relating to or arising in connection with (a) any action
required to be taken or prohibited from being taken pursuant to the terms and conditions of this
Agreement; (b) changes affecting the industry in which the Company and its Subsidiaries operate
generally or the economy of the United States (provided in each case that such changes do not have
a unique or disproportionate impact on the Company or any of its Subsidiaries) and (c) hostilities,
acts of war or terrorism or any material escalation of any such hostilities, acts of war or
terrorism existing as of the date hereof (provided in each case that such changes do not have a
unique or disproportionate impact on the Company or any of its Subsidiaries).



     “Compliance Certificate” means a certificate substantially in the form of Exhibit
C.



5









 





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



     “Control” has the meaning specified in the definition of “Affiliate.”



     “Debt Rating” has the meaning specified in the definition of “Applicable Rate.”



     “Debtor Relief Laws” means the Bankruptcy Code of the United States and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the
United States or other applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally.



     “Default” means any event or condition that constitutes an Event of Default or that,
with the giving of any notice, the passage of time, or both, would be an Event of Default.



     “Default Rate” means an interest rate equal to (a) the Base Rate plus (b) the
Applicable Rate, if any, applicable to Base Rate Loans plus (c) 2% per annum;
provided, however, that, with respect to a Eurodollar Rate Loan, the Default Rate
shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise
applicable to such Loan plus 2% per annum, in each case to the fullest extent permitted by
applicable Laws.



     “Defaulting Lender” means any Lender that (i) has failed to fund any portion of the
Loans required to be funded by it hereunder within one Business Day of the date required to be
funded by it hereunder, (ii) has otherwise failed to pay over to the Administrative Agent or any
other Lender any other amount required to be paid by it hereunder within one Business Day of the
date when due, unless the subject of a good faith dispute, (iii) has notified the Administrative
Agent or the Borrower in writing (which written notice, in the case of notifications to the
Borrower, has been forwarded to the Administrative Agent) that it does not intend to comply with
any of its funding obligations under this Agreement or has made a public statement to the effect
that it does not intend to comply with its funding obligations under this Agreement or under other
agreements in which it commits to extend credit, or (iv) has been deemed insolvent or become the
subject of an Insolvency Proceeding.



     “Disclosed Matters” means litigation to the extent disclosed in the Borrower’s Annual
Report on Form 10-K for the fiscal year ended March 31, 2010, the Borrower’s Quarterly Report on
Form 10-Q for the fiscal quarter ended June 30, 2010, or the Borrower’s Quarterly Report on Form
10-Q for the fiscal quarter ended September 30, 2010, each as filed with the SEC.



     “Disposition” or “Dispose” means, with respect to any Person, (i) any sale, transfer,
license, lease or other disposition of any property or assets by such Person (or the granting of
any option or other right to do any of the foregoing), including any sale, assignment, transfer or
other disposal, with or without recourse, of any notes or accounts receivable or any rights and
claims associated therewith and (ii) any Equity Issuance by any Subsidiary of such Person
(excluding any such Equity Issuance that would, if made by the Borrower, constitute an Excluded
Equity Issuance); provided that the term Disposition shall not include any loss of or damage to, or
any condemnation or other taking of, any property or assets.



6









 





     “Dollar” and “$” mean lawful money of the United States.



     “Effective Date” means the date this Agreement becomes effective in accordance with
Section 11.10.



     “Eligible Assignee” has the meaning specified in Section 11.06(g).



     “End Date” has the meaning specified in the Acquisition Agreement.



     “Environmental Laws” means any and all federal, state, provincial, municipal, local,
and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits,
concessions, grants, franchises, licenses, agreements or governmental restrictions relating to
pollution and the protection of the environment or the release of any materials into the
environment, including those related to hazardous substances or wastes, air emissions and
discharges to waste or public systems.



     “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 of its Subsidiaries 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.



     “Equity Issuance” means any issuance or sale by the Borrower after the Effective Date
of (i) any of its Equity Interests or (ii) any other security or instrument representing an Equity
Interest (or the right to obtain any Equity Interest) in it.



     “ERISA” means the Employee Retirement Income Security Act of 1974.



     “ERISA Affiliate” means any trade or business (whether or not incorporated) under
common control with the Borrower within the meaning of Section 414(b) or (c) of the Code (and
Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the
Code).



     “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a
withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of
ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2)
of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e)
of ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing
of a notice of intent to terminate, the treatment of a Plan amendment



7









 




as a termination under Sections 4041 or 4041A of ERISA, or the commencement of proceedings by
the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which
constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the imposition of any
liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under
Section 4007 of ERISA, upon the Borrower or any ERISA Affiliate.




     “Eurodollar Base Rate” has the meaning specified in the definition of Eurodollar Rate.



     “Eurodollar Rate” means (i) for any Interest Period with respect to any Eurodollar
Rate Loan, or (ii) for any interest calculation with respect to a Base Rate Loan, a rate per annum
determined by the Administrative Agent pursuant to the following formula:



	 	 	 	 	 	 	 	 	 

	 

	 	Eurodollar Rate	 	= 	 	Eurodollar Base Rate	 	 
	 
	 	 	 
 	 

1.00 — Eurodollar Reserve Percentage
	 

 	 






     Where,



     “Eurodollar Base Rate” means:



          (a) for any Interest Period with respect to a Eurodollar Rate Loan, the rate per annum
equal to (i) the British Bankers Association LIBOR Rate (“BBA LIBOR”), as published by
Reuters (or such other commercially available source providing quotations of BBA LIBOR as may be
designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time,
two Business Days prior to the commencement of such Interest Period, for Dollar deposits (for
delivery on the first day of such Interest Period) with a term equivalent to such Interest Period
or, (ii) if such rate is not available at such time for any reason, the rate per annum determined
by the Administrative Agent to be the rate at which deposits in Dollars for delivery on the first
day of such Interest Period in same day funds in the approximate amount of the Eurodollar Rate Loan
being made, continued or converted and with a term equivalent to such Interest Period would be
offered by Bank of America’s London Branch to major banks in the London interbank eurodollar market
at their request at approximately 11:00 a.m. (London time) two Business Days prior to the
commencement of such Interest Period; and



          (b) for any interest calculation with respect to a Base Rate Loan on any date, the rate
per annum equal to (i) BBA LIBOR, at approximately 11:00 a.m., London time determined two Business
Days prior to such date for Dollar deposits being delivered in the London interbank market for a
term of one month commencing that day or (ii) if such published rate is not available at such time
for any reason, the rate per annum determined by the Administrative Agent to be the rate at which
deposits in Dollars for delivery on the date of determination in same day funds in the approximate
amount of the Base Rate Loan being made or maintained and with a term equal to one month would be
offered by Bank of America’s London Branch to major banks in the London interbank eurodollar market
at their request at the date and time of determination.



     “Eurodollar Rate Loan” means a Loan that bears interest at a rate based on clause (i)
of the definition of the Eurodollar Rate.



8









 





     “Eurodollar Reserve Percentage” means, for any day during any Interest Period, the
reserve percentage (expressed as a decimal, carried out to five decimal places) in effect on such
day under regulations issued from time to time by the FRB for determining the maximum reserve
requirement (including any emergency, supplemental or other marginal reserve requirement) with
respect to Eurocurrency funding (currently referred to as “Eurocurrency liabilities”). The
Eurodollar Rate for each outstanding Eurodollar Rate Loan shall be adjusted automatically as of the
effective date of any change in the Eurodollar Reserve Percentage.



     “Event of Default” has the meaning specified in Section 8.01.



     “Excluded Equity Issuances” means any Equity Issuance of the Borrower pursuant to
employee and other benefit plans, stock option or stock purchase plans, management equity plans,
other benefit plans or compensation arrangements or accommodations for management, directors or
employees of the Borrower existing on the Effective Date or established thereafter in the ordinary
course of business or pursuant to dividend reinvestment plans established for the benefit of the
common stock holders of the Borrower.



     “Federal Funds Rate” means, for any day, the rate per annum equal to the weighted
average of the rates on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of
New York on the Business Day next succeeding such day; provided that (a) if such day is not
a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such
rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day
shall be the weighted average rate (rounded upward, if necessary, to a whole multiple of 1/100 of
1%) charged to Bank of America on such day on such transactions as determined by the Administrative
Agent.



     “Fee Letters” means the AA Fee Letter and JLA Fee Letter.



     “Fitch” means Fitch, Inc., a majority-owned subsidiary of Fimalac, S.A., and any
successor thereto.



     “Foreign Lender” has the meaning specified in Section 11.14(a)(i).



     “Foreign Subsidiary” means any Subsidiary of the Borrower that is not organized under
the laws of the United States of America or any political subdivision thereof.



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



     “Fund” means any Person (other than a natural person) that is (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial loans and similar extensions of
credit in the ordinary course of its activities.



     “GAAP” means generally accepted accounting principles in the United States set forth
in the opinions and pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting



9









 




Standards Board or such other principles as may be approved by a significant segment of the
accounting profession in the United States, that are applicable to the circumstances as of the date
of determination, consistently applied.




     “Governmental Authority” means any nation or government, any state or other political
subdivision thereof, any agency, authority, instrumentality, regulatory body, court, administrative
tribunal, central bank or other entity exercising executive, legislative, judicial, taxing,
regulatory or administrative powers or functions of or pertaining to government.



     “Guarantee” means, as to any Person, any (a) any obligation, contingent or otherwise,
of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other
obligation payable or performable by another Person (the “primary obligor”) in any manner, whether
directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation, (ii) to purchase or lease property, securities or services for the purpose of
assuring the obligee in respect of such Indebtedness or other obligation of the payment or
performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of income or cash flow of
the primary obligor so as to enable the primary obligor to pay such Indebtedness or other
obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in
respect of such Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any
assets of such Person securing any Indebtedness or other obligation of any other Person, whether or
not such Indebtedness or other obligation is assumed by such Person. The amount of any Guarantee
shall be deemed to be an amount equal to the stated or determinable amount of the related primary
obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof as determined by the
guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.



     “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.



     “Indebtedness” means, as to any Person at a particular time, without duplication, all
of the following:



          (a) all obligations of such Person for borrowed money;



          (b) all obligations of such Person to pay the deferred purchase price of property or
services (other than trade accounts payable in the ordinary course of business);



          (c) all non-contingent reimbursement or payment obligations of such Person arising under
letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties,
shipside bonds, surety bonds and similar instruments;



10









 





          (d) all obligations of such Person evidenced by bonds, debentures, notes, loan agreements
or other similar instruments;



          (e) capital leases and Synthetic Lease Obligations;



          (f) net obligations of such Person under any Swap Contract;



          (g) all indebtedness created or arising under any conditional sale or other title
retention agreement, or incurred as financing, in either case with respect to property acquired by
the Person (even though the rights and remedies of the seller or bank under such agreement in the
event of default are limited to repossession or sale of such property); and



          (h) all indebtedness referred to in clauses (a) through (g) above (excluding prepaid
interest thereon) secured by a Lien on property owned or being purchased by such Person, whether or
not such indebtedness shall have been assumed by such Person or is limited in recourse.



     For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any
partnership or joint venture (other than a joint venture that is itself a corporation or limited
liability company) in which such Person is a general partner or a joint venturer, unless such
Indebtedness is expressly made non-recourse to such Person. The amount of any net obligation under
any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such
date. The amount of any capital lease or Synthetic Lease Obligation as of any date shall be deemed
to be the amount of Attributable Indebtedness in respect thereof as of such date.



     “Indemnified Liabilities” has the meaning set forth in Section 11.04.



     “Indemnitees” has the meaning set forth in Section 11.04.



     “Insolvency Proceeding” means (a) any case, action or proceeding before any court or
other Governmental Authority relating to bankruptcy, reorganization, insolvency, liquidation,
receivership, dissolution, winding-up or relief of debtors, or (b) any general assignment for the
benefit of creditors, composition, marshalling of assets for creditors, or other similar
arrangement in respect of its creditors generally or any substantial portion of its creditors;
undertaken under any Debtor Relief Law.



     “Interest Payment Date” means, (a) as to any Eurodollar Rate Loan, the last day of
each Interest Period applicable to such Loan and the Maturity Date; and (b) as to any Base Rate
Loan, the fifth day following the end of each calendar quarter and the Maturity Date.



     “Interest Period” means, as to each Eurodollar Rate Loan, the period commencing on the
date such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan
and ending on the date one, two or three months thereafter, as selected by the Borrower in its Loan
Notice; provided that:




     (a) any Interest Period that would otherwise end on a day that is not a Business
Day shall be extended to the next succeeding Business Day unless such



11









 






Business Day falls in another calendar month, in which case such Interest Period shall
end on the next preceding Business Day;




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




     (c) no Interest Period shall extend beyond the Maturity Date.



     “IRS” means the United States Internal Revenue Service.



     “JLA Fee Letter” means the letter agreement, dated November 1, 2010, among the
Borrower, the Administrative Agent and the Arrangers.



     “Laws” means, collectively, all international, foreign, federal, state, provincial,
municipal and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the interpretation or
administration thereof by any Governmental Authority charged with the enforcement, interpretation
or administration thereof, and all applicable administrative orders, directed duties, requests,
licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each
case whether or not having the force of law.



     “Lender” has the meaning specified in the introductory paragraph hereto.



     “Lending Office” means, as to any Lender, the office or offices of such Lender
described as its “Lending Office” or “Domestic Lending Office” or “Eurodollar Lending Office,” as
the case may be, in such Lender’s Administrative Questionnaire, or such other office or offices as
a Lender may from time to time notify the Borrower and the Administrative Agent.



     “Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, or preference, priority or other security interest
of any kind or nature whatsoever (including any conditional sale or other title retention
agreement, and any financing lease having substantially the same economic effect as any of the
foregoing, but not including the interest of a lessor under an operating lease or the sale of
accounts receivable).



     “Loan” means a Loan made by a Lender to the Borrower under Section 2.01.



     “Loan Documents” means this Agreement, any Notes, the Fee Letters and all other
documents delivered to the Administrative Agent or any Lender in connection herewith.



     “Loan Notice” means a notice of (a) a borrowing of Loans, (b) a conversion of Loans
from one Type to the other, or (c) a continuation of Eurodollar Rate Loans pursuant to Section
2.02(a), which, if in writing, shall be substantially in the form of Exhibit A.



     “Margin Stock” means “margin stock” as such term is defined in Regulation T, U or X of
the FRB.



12









 





     “Master Agreement” has the meaning set forth in the definition of “Swap Contract.”



     “Material Adverse Effect” means (a) a material adverse change in, or a material
adverse effect upon, the operations, business, properties or condition (financial or otherwise) of
the Borrower and its Subsidiaries taken as a whole or any Material Subsidiary; (b) a material
impairment of the ability of the Borrower to perform its obligations under any Loan Document to
which it is a party; or (c) a material adverse effect upon the legality, validity, binding effect
or enforceability against the Borrower of any Loan Document to which it is a party.



     “Material Subsidiary” means, at any time, (a) McKesson Canada and (b) any other
Subsidiary having at such time 10% or more of the Borrower’s consolidated total (gross) revenues
for the preceding four fiscal quarter period, as of the last day of the preceding fiscal quarter
based upon the Borrower’s most recent annual or quarterly financial statements delivered to the
Administrative Agent under Section 6.01.



     “Maturity Date” means the first anniversary of the Closing Date.



     “McKesson Canada” means McKesson Canada Corporation, a Nova Scotia unlimited company
and indirect wholly owned subsidiary of the Borrower.



     “Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.



     “Multiemployer Plan” means any employee benefit plan of the type described in Section
4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to make
contributions, or during the preceding five plan years, has made or been obligated to make
contributions.



     “Net Cash Proceeds” means, (a) with respect to any Disposition by the Borrower or any
Subsidiary, the aggregate amount of all cash proceeds (including any cash proceeds received by way
of deferred payment of principal pursuant to a note or installment receivable, purchase price
adjustment, or otherwise, but only as and when received) received by the Borrower or a Subsidiary
in respect of such Disposition, net of (i) all reasonable third-party attorneys’ fees, accountants’
fees, brokerage, consultant and other customary fees and commissions, title and recording tax
expenses and other fees and expenses incurred by the Borrower or a Subsidiary in connection with
such Disposition, (ii) all Taxes (including Taxes arising out of the distribution of such cash
proceeds by a Foreign Subsidiary directly or indirectly to the Borrower or a Subsidiary by one or
more intermediate Subsidiaries or another Subsidiary organized and existing under the laws of the
United States of America or any political subdivision thereof (such Taxes, “Specified
Taxes”)) paid or reasonably estimated to be payable as a result thereof, (iii) any liabilities
or obligations associated with the property or assets Disposed of in such Disposition and retained,
indemnified or insured by the Borrower or a Subsidiary after such Disposition, including without
limitation pension and other post-employment benefit liabilities, liabilities related to
environmental matters, and liabilities relating to any indemnification obligations associated with
such Disposition, (iv) all payments made, and all installment payments required to be made, with
respect to any obligation (x) that is secured by any property or assets subject to such
Disposition, in accordance with the terms of any Lien upon such property or assets, or (y) that
must by its terms, or in order to obtain a necessary consent to such Disposition, or by applicable
law, be



13









 




repaid out of the proceeds from such Disposition, (v) all distributions and other payments
required to be made to minority interest holders in Subsidiaries or joint ventures as a result of
such Disposition, or to any other Person (other than the Borrower or a Subsidiary) owning a
beneficial interest in the property or assets Disposed of in such Disposition and (vi) the amount
of any purchase price or similar adjustment (x) claimed by any Person to be owed by the Borrower or
a Subsidiary, until such time as such claim shall have been settled or otherwise finally resolved
or (y) paid or payable by the Borrower or a Subsidiary, in either case in respect of such
Disposition, (b) with respect to any Property Loss Event, the aggregate amount of all cash proceeds
received by the Borrower or any Subsidiary unless the repatriation to the United States of the
related proceeds is prohibited or delayed by applicable local law or would in the good faith
judgment of the Borrower have an adverse tax consequence, net of (i) amounts applied or committed
to be applied, to the restoration or repair of damaged property or assets or to the purchase price
of replacement property or assets or other similar property or assets useful in the business of the
Borrower or its Subsidiaries within 270 days after the receipt of such proceeds and (ii) Taxes,
including Specified Taxes, and (c) with respect to any other Reduction Event, the aggregate amount
of all cash proceeds received by the Borrower or any Subsidiary in respect of such Reduction Event,
net of fees, expenses, costs, underwriting discounts and commissions incurred by the Borrower or
such Subsidiary in connection therewith and net of Taxes paid or estimated to be payable as a
result thereof.




     “Net Worth” means the sum of the capital stock and additional paid in capital plus
retained earnings (or minus accumulated deficits) of the Borrower and its Subsidiaries determined
on a consolidated basis in conformity with GAAP on such date.



     “Note” means a promissory note executed by the Borrower in favor of a Lender pursuant
to Section 2.11, substantially in the form of Exhibit B.



     “Obligations” means all advances to, and debts, liabilities, obligations, covenants
and duties of, the Borrower arising under any Loan Document or otherwise with respect to any Loan,
whether direct or indirect (including those acquired by assumption), absolute or contingent, due or
to become due, now existing or hereafter arising and including interest and fees that accrue after
the commencement by or against the Borrower or any Affiliate thereof of any proceeding under any
Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such
interest and fees are allowed claims in such proceeding.



     “Organization Documents” means, with respect to any corporation, the certificate or
articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with
respect to any non-U.S. jurisdiction).



     “Other Taxes” has the meaning specified in Section 3.01(b).



     “Outstanding Amount” means, on any date, the aggregate outstanding principal amount of
the Loans after giving effect to any borrowings and prepayments or repayments of Loans occurring on
such date.



     “Participant” has the meaning specified in Section 11.06(d).



     “PBGC” means the Pension Benefit Guaranty Corporation.



14









 





     “Pension Plan” means any “employee pension benefit plan” (as such term is defined in
Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and
is sponsored or maintained by the Borrower or any ERISA Affiliate or to which the Borrower or any
ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple
employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time
during the immediately preceding five plan years.



     “Permanent Financing” means senior unsecured notes to be issued by the Borrower
through a public offering or in a private placement to refinance the Bridge Facility.



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



     “Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of
ERISA) established by the Borrower or, with respect to any such plan that is subject to Section 412
of the Code or Title IV of ERISA, any ERISA Affiliate.



     “Pro Rata Share” means, with respect to each Lender at any time, a fraction (expressed
as a percentage, carried out to the ninth decimal place), the numerator of which is either (x) the
amount of the undrawn Commitment of such Lender at such time or (y) the aggregate outstanding
principal amount of the Loans of such Lender at such time, and the denominator of which is either
(x) the aggregate amount of the undrawn Commitments at such time or (y) the aggregate outstanding
principal amount of the Loans at such time, in each case as the context may require.



     “Proceedings” has the meaning set forth in Section 6.03(c).



     “Property Loss Event” means (a) any loss of or damage to property or assets of the
Borrower and its Subsidiaries that results in the receipt by such Person of proceeds of insurance
(other than business interruption insurance) exceeding $25,000,000 (individually or in the
aggregate) or (b) any taking of property or assets of the Borrower and its Subsidiaries that
results in the receipt by such Person of a compensation payment in respect thereof exceeding
$25,000,000 (individually or in the aggregate).



     “Reduction Amount” means, in relation to any Reduction Event, the largest integral
multiple of $1,000,000 that does not exceed the amount of the related Net Cash Proceeds.



     “Reduction Event” means any Specified Asset Sale, Property Loss Event, Specified Debt
Financing or Specified Equity Issuance.



     “Register” has the meaning set forth in Section 11.06(c).



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



     “Reportable Event” means any of the events set forth in Section 4043(c) of ERISA,
other than events for which the 30 day notice period has been waived.



15









 





     “Required Lenders” means, at any time non-Defaulting Lenders holding more than 50% of
the aggregate amount of (i) the undrawn Commitments then effective and (ii) the Total Outstandings
of all Lenders, exclusive in the case of (i) and (ii) of the Commitment and Loans of any Defaulting
Lender.



     “Requirement of Law” means, as to any Person, any law (statutory or common), treaty,
rule or regulation or determination, decree or order of an arbitrator or of a Governmental
Authority, in each case applicable to or binding upon the Person or any of its property or to which
the Person or any of its property is subject, including but not limited to any Environmental Law.



     “Responsible Officer” means the chief executive officer, president, chief financial
officer, corporate vice president or the treasurer of the Borrower. Any document delivered
hereunder that is signed by a Responsible Officer of the Borrower shall be conclusively presumed to
have been authorized by all necessary corporate, partnership and/or other action on the part of the
Borrower and such Responsible Officer shall be conclusively presumed to have acted on behalf of the
Borrower.



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



     “SEC” means the Securities and Exchange Commission, or any Governmental Authority
succeeding to any of its principal functions.



     “Specified Asset Sale” means any Disposition or series of related Dispositions by the
Borrower or any of its Subsidiaries outside the ordinary course of business; provided that
“Specified Asset Sale” shall not include (i) a Disposition or series of related Dispositions the
Net Cash Proceeds of which do not exceed $25,000,000 in the aggregate for such Disposition or
series of related Dispositions, (ii) Dispositions by the Borrower to any Subsidiary, (iii)
Dispositions by any Subsidiary to the Borrower or any other Subsidiary, (iv) Dispositions by
Foreign Subsidiaries to the extent that, in the case of this clause (iv), repatriation to the
United States of the related proceeds is prohibited or delayed by applicable local law or would in
the good faith judgment of the Borrower have an adverse tax consequence or (v) Dispositions in
connection with Indebtedness pursuant to receivables facilities or securitization facilities
excluded from the definition of “Specified Debt Financing” pursuant to clause (i) thereof.



     “Specified Debt Financing” means any issuance of debt securities (whether in a public
offering or a private placement) or borrowing of term loans (other than the Loans) by the Borrower
or any Subsidiary for gross proceeds exceeding $25,000,000 (individually or in the aggregate),
including any Permanent Financing, but in each case excluding (i) incurrence of Indebtedness
pursuant to credit facilities, receivables facilities or securitization facilities existing on the
Effective Date (including any refinancing, renewal or extension of any such facilities) or issuance
of commercial paper supported by such facilities, (ii) any other borrowing of loans in the ordinary
course of business, (iii) any transactions between the Borrower and any Subsidiary and (iv) any
transactions between or among Subsidiaries.



16









 





     “Specified Equity Issuance” means any Equity Issuance by the Borrower other than an
Excluded Equity Issuance.



     “Specified Representations” means the representations and warranties contained in
Sections 5.01 and 5.02 (in each case, as they related to the entering into and
performance of the Loan Documents) and Sections 5.03, 5.04, 5.06,
5.07, 5.08 and 5.09.



     “Specified Taxes” has the meaning specified in the definition of “Net Cash Proceeds”.



     “Subsidiary” of a Person means a corporation, partnership, joint venture, limited
liability company, unlimited liability company or other business entity of which a majority of the
shares of securities or other interests having ordinary voting power for the election of directors
or other governing body (other than securities or interests having such power only by reason of the
happening of a contingency) are at the time beneficially owned, or the management of which is
otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such
Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries”
shall refer to a Subsidiary or Subsidiaries of the Borrower.



     “Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond price or bond index
swaps or options or forward bond or forward bond price or forward bond index transactions, interest
rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions, currency options,
spot contracts, or any other similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions of any kind, and
the related confirmations, which are subject to the terms and conditions of, or governed by, any
form of master agreement published by the International Swaps and Derivatives Association, Inc.,
any International Foreign Exchange Master Agreement, or any other master agreement relating to any
of the foregoing (any such master agreement, together with any related schedules, a “Master
Agreement”), including any such obligations or liabilities under any Master Agreement.



     “Swap Termination Value” means, in respect of any one or more Swap Contracts, after
taking into account the effect of any legally enforceable netting agreement relating to such Swap
Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and
termination value(s) determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market
value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily
available quotations provided by any recognized dealer in such Swap Contracts (which may include a
Lender or any Affiliate of a Lender).



     “Syndication Agent” means JPMorgan Chase Bank, N.A., in its capacity as syndication
agent under any of the Loan Documents.



17









 





     “Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a
so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or
possession of property creating obligations that do not appear on the balance sheet of such Person
but which, upon the insolvency or bankruptcy of such Person, would be characterized as the
indebtedness of such Person (without regard to accounting treatment).



     “Taxes” has the meaning specified in Section 3.01(a).



     “Total Capitalization” means, on any date, the sum of (a) Total Debt and (b) the Net
Worth on such date.



     “Total Debt” means, on any date, all Indebtedness of the Borrower and its Subsidiaries
determined on a consolidated basis on such date.



     “Total Outstandings” means (a) as to all Lenders at any date of determination, the
Outstanding Amount and (b) as to any Lender at any date of determination, the sum of the
Outstanding Amount of all Loans of such Lender.



     “Transactions” means (i) the Acquisition, (ii) the execution, delivery and performance
of this Agreement including the funding of the Loans hereunder and the application of the proceeds
thereof, (iii) the repayment of outstanding indebtedness of the Company and its Subsidiaries
(including premiums payable on the Company Bonds), and (iv) payment of the Transaction Costs.



     “Transaction Costs” means fees and expenses incurred in connection with the
Transactions.



     “Type” means, with respect to a Loan, its character as a Base Rate Loan or a
Eurodollar Rate Loan.



     “Undrawn Commitment Fee Rate” means the rate per annum corresponding to the applicable
Debt Rating as set forth below:



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Debt Ratings
	 	 	S&P/Moody’s/Fitch
	 	 	Pricing Level I:	 	 	 	 	 	Pricing Level III:
	 	 	A-/A3/A-	 	Pricing Level II:	 	BBB/Baa2/BBB
	 	 	(or higher)	 	BBB+/Baa1/BBB+	 	(or lower)
	Undrawn Commitment
Fee Rate
	 	 	0.20	%	 	 	0.225	%	 	 	0.25	%






     Split Debt Ratings shall be determined as specified in the definition of “Debt Rating,”
provided that all references to “Applicable Rate” shall refer to “Undrawn Commitment Fee Rate”.



     The Undrawn Commitment Fee Rate as of the Effective Date shall be 0.20% per annum. Each change
in the Undrawn Commitment Fee Rate resulting from a publicly announced change



18









 




in the Debt Rating shall be effective, in the case of an upgrade, during the period commencing
on the date of delivery by the Borrower to the Administrative Agent of notice thereof pursuant to
Section 6.03(e) and ending on the date immediately preceding the effective date of the next
such change and, in the case of a downgrade, during the period commencing on the date of the public
announcement thereof and ending on the date immediately preceding the effective date of the next
such change.




     “United States” and “U.S.” mean the United States of America.



     “Wholly-Owned Subsidiary” means any Subsidiary in which (other than directors’
qualifying shares required by law) 100% of the capital stock of each class or other interests
having ordinary voting power, and 100% of the capital stock of every other class or other
interests, in each case, at the time as of which any determination is being made, is owned,
beneficially and of record, by the Borrower, or by one or more of the other Wholly-Owned
Subsidiaries, or both.



     1.02 Other Interpretive Provisions. With reference to this Agreement and each other Loan
Document, unless otherwise specified herein or in such other Loan Document:



     (a) The meanings of defined terms are equally applicable to the singular and plural forms
of the defined terms.



     (b) (i) The words “herein,” “hereto,” “hereof” and
“hereunder” and words of similar import when used in any Loan Document shall refer to such
Loan Document as a whole and not to any particular provision thereof.




     (ii) Article, Section, Exhibit and Schedule references are to the Loan Document in
which such reference appears.




     (iii) The term “including” is by way of example and not limitation.




     (iv) The term “documents” includes any and all instruments, documents,
agreements, certificates, notices, reports, financial statements and other writings, however
evidenced, whether in physical or electronic form.



     (c) In the computation of periods of time from a specified date to a later specified date,
the word “from” means “from and including;” the words “to” and
“until” each mean “to but excluding;” and the word “through” means “to
and including.”



     (d) Section headings herein and in the other Loan Documents are included for convenience
of reference only and shall not affect the interpretation of this Agreement or any other Loan
Document.



     1.03 Accounting Terms. (a) All accounting terms not specifically or completely defined
herein shall be construed in conformity with, and all financial data (including financial ratios
and other financial calculations) required to be submitted pursuant to this Agreement shall be
prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to



19









 




time, applied in a manner consistent with that used in preparing the Audited Financial
Statements, except as otherwise specifically prescribed herein.




     (b) If at any time any change in GAAP would affect the computation of any financial ratio
or requirement set forth in any Loan Document, and either the Borrower or the Required Lenders
shall so request, the Administrative Agent, the Lenders and the Borrower shall negotiate in good
faith to amend such ratio or requirement to preserve the original intent thereof in light of such
change in GAAP (subject to the approval of the Required Lenders); provided that,
until so amended, (i) such ratio or requirement shall continue to be computed in accordance with
GAAP prior to such change therein and (ii) the Borrower shall provide to the Administrative Agent
and the Lenders financial statements and other documents required under this Agreement or as
reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in GAAP.



     1.04 Rounding. Any financial ratios required to be maintained by the Borrower pursuant to
this Agreement shall be calculated by dividing the appropriate component by the other component,
carrying the result to one place more than the number of places by which such ratio is expressed
herein and rounding the result up or down to the nearest number (with a rounding-up if there is no
nearest number).



     1.05 References to Agreements and Laws. Unless otherwise expressly provided herein, (a)
references to Organization Documents, agreements (including the Loan Documents) and other
contractual instruments shall be deemed to include all subsequent amendments, restatements,
extensions, supplements and other modifications thereto, but only to the extent that such
amendments, restatements, extensions, supplements and other modifications are not prohibited by any
Loan Document; and (b) references to any Law shall include all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting such Law.



     1.06 Times of Day. Unless otherwise specified, all references herein to times of day
shall be references to Pacific time (daylight or standard, as applicable).



ARTICLE II.

THE COMMITMENTS AND LOANS




     2.01 Loans. Subject to the terms and conditions set forth herein, each Lender severally
agrees to make Loans to the Borrower from time to time, on any Business Day during the Availability
Period, in an aggregate amount not to exceed the amount of such Lender’s Commitment. The
Commitments are not revolving in nature, and amounts borrowed under this Section 2.01 and
repaid under Section 2.07 or prepaid under Section 2.05 or 2.06 may not be
reborrowed. Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein.



     2.02 Borrowings, Conversions and Continuations of Loans.



     (a) Each borrowing of Loans, each conversion of Loans from one Type to the other, and each
continuation of Eurodollar Rate Loans shall be made upon the Borrower’s



20









 




irrevocable notice to the Administrative Agent, which may be given by telephone. Each such
notice must be received by the Administrative Agent not later than 9:00 a.m. (i) three Business
Days prior to the requested date of any borrowing of, conversion to or continuation of Eurodollar
Rate Loans or of any conversion of Eurodollar Rate Loans to Base Rate Loans, and (ii) on the
requested date of any borrowing of Base Rate Loans. In the case of a borrowing of Loans, the
Borrower may request a maximum of two (2) borrowings subject to the terms and conditions set forth
herein. Each telephonic notice by the Borrower pursuant to this Section 2.02(a) must be
confirmed promptly by delivery to the Administrative Agent of a written Loan Notice, appropriately
completed and signed by a Responsible Officer of the Borrower. Each borrowing, conversion or
continuation of Loans shall be in a principal amount of $5,000,000 or a whole multiple of
$1,000,000 in excess thereof. Each Loan Notice (whether telephonic or written) shall specify (i)
whether the Borrower is requesting a borrowing of Loans, a conversion of Loans from one Type to the
other, or a continuation of Eurodollar Rate Loans, (ii) the requested date of the borrowing (which
date shall be either (x) the Closing Date or (y) a date subsequent to the Closing Date on or about
which a payment with respect to the Company Bonds is required to be made), conversion or
continuation, as the case may be (which, in each case, shall be a Business Day), (iii) the
principal amount of Loans to be borrowed, converted or continued, (iv) the Type of Loans to be
borrowed or to which existing Loans are to be converted, and (v) if applicable, the duration of the
Interest Period with respect thereto. If the Borrower fails to specify a Type of Loan in a Loan
Notice or if the Borrower fails to give a timely notice requesting a conversion or continuation,
then the applicable Loans shall be made as, or converted to, Base Rate Loans. Any such automatic
conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in
effect with respect to the applicable Eurodollar Rate Loans. If the Borrower requests a borrowing
of, conversion to, or continuation of Eurodollar Rate Loans in any such Loan Notice, but fails to
specify an Interest Period, it will be deemed to have specified an Interest Period of one month.




     (b) Following receipt of a Loan Notice, the Administrative Agent shall promptly notify
each Lender of the amount of its Pro Rata Share of the Loans, and if no timely notice of a
conversion or continuation is provided by the Borrower, the Administrative Agent shall notify each
Lender of the details of any automatic conversion to Base Rate Loans described in Section
2.02(a). In the case of a borrowing of Loans, each Lender shall make the amount of its Loan
available to the Administrative Agent in immediately available funds at the Administrative Agent’s
Office not later than 11:00 a.m. on the Business Day specified in the applicable Loan Notice. Upon
satisfaction of the applicable conditions set forth in Article IV, the Administrative Agent
shall make all funds so received available to the Borrower in like funds as received by the
Administrative Agent either by (i) crediting the account of the Borrower on the books of Bank of
America with the amount of such funds or (ii) wire transfer of such funds, in each case in
accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by
the Borrower.



     (c) Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or
converted only on the last day of an Interest Period for such Eurodollar Rate Loan. During the
existence of a Default, no Loans may be requested as, converted to or continued as Eurodollar Rate
Loans without the consent of the Required Lenders.



21









 





     (d) The Administrative Agent shall promptly notify the Borrower and the Lenders of the
interest rate applicable to any Interest Period for Eurodollar Rate Loans upon determination of
such interest rate. The determination of the Eurodollar Rate by the Administrative Agent shall be
conclusive in the absence of manifest error. At any time that Base Rate Loans are outstanding, the
Administrative Agent shall notify the Borrower and the Lenders of any change in Bank of America’s
prime rate used in determining the Base Rate promptly following the public announcement of such
change.



     (e) After giving effect to all borrowings, all conversions of Loans from one Type to the
other, and all continuations of Loans as the same Type, there shall not be more than ten Interest
Periods in effect at any time.



     2.03 [RESERVED].



     2.04 [RESERVED].



     2.05 Prepayments.



     (a) Voluntary Prepayments. The Borrower may, upon notice to the Administrative Agent, at
any time or from time to time voluntarily prepay Loans in whole or in part without premium or
penalty; provided that such notice must be received by the Administrative Agent not later
than 9:00 a.m., (A) three Business Days prior to any date of prepayment of Eurodollar Rate Loans
and (B) on the date of prepayment of Base Rate Loans. Any prepayment of Loans shall be in a
principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof or, if less, the
entire principal amount thereof then outstanding. Each such notice shall specify the date and
amount of such prepayment and the Type(s) of Loans to be prepaid. The Administrative Agent will
promptly notify each Lender of its receipt of each such notice, and of the amount of such Lender’s
Pro Rata Share of such prepayment. If such notice is given by the Borrower, the Borrower shall
make such prepayment and the payment amount specified in such notice shall be due and payable on
the date specified therein. Any prepayment of a Eurodollar Rate Loan shall be accompanied by all
accrued interest thereon, together with any additional amounts required pursuant to Section
3.05. Each such prepayment shall be applied to the Loans of the Lenders in accordance with
their respective Pro Rata Shares.



     (b) Mandatory Commitment Reductions and Prepayments. Upon the occurrence of any Reduction
Event, the Borrower shall apply an amount equal to the related Reduction Amount first to ratably
prepay the outstanding Loans (if any) and if such amount is greater than the Outstanding Amount at
such time, to permanently and ratably reduce any remaining undrawn portion of the Aggregate
Commitments in an amount equal to such excess amount, any such prepayment to be effected within
five Business Days after receipt by the Borrower or, as applicable, its Subsidiary of the Net Cash
Proceeds from such Reduction Event and any such reduction to be effective immediately after receipt
by the Borrower or, as applicable, its Subsidiary of the Net Cash Proceeds from such Reduction
Event. The Borrower shall notify the Administrative Agent of any Reduction Event and the related
Reduction Amount not later than the date of such Reduction Event, and the Administrative Agent
shall promptly notify the Lenders thereof.



22









 





     2.06 Voluntary Termination or Reduction of Commitments. The Borrower may, upon notice to
the Administrative Agent, terminate the Aggregate Commitments, or from time to time permanently
reduce the Aggregate Commitments; provided that (i) any such notice shall be received by
the Administrative Agent not later than 9:00 a.m. three Business Days prior to the date of
termination or reduction, and (ii) any such partial reduction shall be in an aggregate amount of
$10,000,000 or any whole multiple of $1,000,000 in excess thereof. The Administrative Agent will
promptly notify the Lenders of any such notice of termination or reduction of the Aggregate
Commitments. Any reduction of the Aggregate Commitments shall be applied to the Commitment of each
Lender according to its Pro Rata Share. All undrawn commitment fees accrued until the effective
date of any termination of the Aggregate Commitments shall be paid on the effective date of such
termination.



     2.07 Repayment of Loans.



     The Borrower shall repay to the Lenders on the Maturity Date the aggregate principal amount of
the Loans outstanding on such date.



     2.08 Interest.



     (a) Subject to the provisions of Section 2.08(b), (i) each Eurodollar Rate Loan
shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate
per annum equal to the Eurodollar Rate for such Interest Period plus the Applicable Rate;
and (ii) each Base Rate Loan shall bear interest on the outstanding principal amount thereof from
the applicable borrowing date at a rate per annum equal to the Base Rate plus the
Applicable Rate.



     (b) If any amount payable by the Borrower under any Loan Document is not paid when due
(without regard to any applicable grace periods), whether at stated maturity, by acceleration or
otherwise, such amount shall thereafter bear interest at a fluctuating interest rate per annum at
all times equal to the Default Rate to the fullest extent permitted by applicable Laws.
Furthermore, upon the request of the Required Lenders, while any Event of Default exists, the
Borrower shall pay interest on the principal amount of all outstanding Obligations hereunder at a
fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent
permitted by applicable Laws. Accrued and unpaid interest on past due amounts (including interest
on past due interest) shall be due and payable upon demand.



     (c) Interest on each Loan shall be due and payable in arrears on each Interest Payment
Date applicable thereto and at such other times as may be specified herein. Interest hereunder
shall be due and payable in accordance with the terms hereof before and after judgment, and before
and after the commencement of any proceeding under any Debtor Relief Law.



     2.09 Fees.



     (a) Undrawn Commitment Fee. The Borrower shall pay to the Administrative Agent
for the account of each Lender in accordance with its Pro Rata Share, an undrawn commitment fee
which shall accrue at the applicable Undrawn Commitment Fee Rate then in effect on the daily amount
of the undrawn Commitment of such Lender during the period from



23









 




and including the Effective Date to but excluding the last day of the Availability Period and
shall be payable on the last day of the Availability Period.




     (b) Duration Fee. If the Loans have not been repaid in full in cash on or prior
to:




     (i) the 90th day after the Closing Date, a fully earned and non-refundable duration
fee equal to 0.50% of the aggregate principal amount of Loans then outstanding shall be due
and payable by the Borrower on such date to the Administrative Agent for the account of each
Lender in accordance with its Pro Rata Share;




     (ii) the 180th day after the Closing Date, a fully earned and non-refundable
duration fee equal to 1.00% of the aggregate principal amount of Loans then outstanding
shall be due and payable by the Borrower on such date to the Administrative Agent for the
account of each Lender in accordance with its Pro Rata Share; and




     (iii) the 270th day after the Closing Date, a fully earned and non-refundable
duration fee equal to 1.50% of the aggregate principal amount of Loans then outstanding
shall be due and payable by the Borrower on such date to the Administrative Agent for the
account of each Lender in accordance with its Pro Rata Share.



     (c) Other Fees. (i) The Borrower shall pay to the Arrangers and the
Administrative Agent for their own respective accounts fees in the amounts and at the times
specified in the Fee Letters, as applicable. Such fees shall be fully earned when paid and, except
to the extent expressly otherwise agreed, shall not be refundable for any reason whatsoever.




     (ii) The Borrower shall pay to the Lenders such fees as shall have been separately
agreed upon in writing in the amounts and at the times so specified. Such fees shall be
fully earned when paid and, except to the extent expressly otherwise agreed, shall not be
refundable for any reason whatsoever.



     2.10 Computation of Interest and Fees. All computations of interest for Base Rate Loans
shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days
elapsed. All other computations of fees and interest shall be made on the basis of a 360-day year
and actual days elapsed (which results in more fees or interest, as applicable, being paid than if
computed on the basis of a 365-day year). Interest shall accrue on each Loan for the day on which
the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the
Loan or such portion is paid, provided that any Loan that is repaid on the same day on
which it is made shall, subject to Section 2.12(a), bear interest for one day. Each
determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive
and binding for all purposes, absent manifest error.



     2.11 Evidence of Debt. The Loans made by each Lender shall be evidenced by one or more
accounts or records maintained by such Lender and by the Administrative Agent in the ordinary
course of business. The accounts or records maintained by the Administrative Agent and each Lender
shall be conclusive absent manifest error of the amount of the Loans made by the Lenders to the
Borrower and the interest and payments thereon. Any failure to so record or any error in doing so
shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any
amount owing with respect to the Obligations. In the event of any conflict



24









 




between the accounts and records maintained by any Lender and the accounts and records of the
Administrative Agent in respect of such matters, the accounts and records of the Administrative
Agent shall control in the absence of manifest error. Upon the request of any Lender made through
the Administrative Agent, the Borrower shall execute and deliver to such Lender (through the
Administrative Agent) a Note, which shall evidence such Lender’s Loans in addition to such accounts
or records. Each Lender may attach schedules to its Note and endorse thereon the date, Type (if
applicable), amount and maturity of its Loans and payments with respect thereto.




     2.12 Payments Generally.



     (a) All payments to be made by the Borrower shall be made without condition or deduction
for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided
herein, all payments by the Borrower hereunder shall be made to the Administrative Agent, for the
account of the Lenders, at the Administrative Agent’s Office in Dollars not later than 12:00 noon
on the date specified herein in immediately available funds. The Administrative Agent will
promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided
herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office.
All payments received by the Administrative Agent after the applicable time specified in this
Section 2.12(a) shall be deemed received on the next succeeding Business Day and any
applicable interest or fee shall continue to accrue. If any payment to be made by the Borrower
shall come due on a day other than a Business Day, payment shall be made on the next following
Business Day, and such extension of time shall be reflected in computing interest or fees, as the
case may be.




(b) (i) Unless the Administrative Agent shall have received notice from a Lender
prior to the proposed date of any borrowing of Loans that such Lender will not make
available to the Administrative Agent such Lender’s share of such borrowing, the
Administrative Agent may assume that such Lender has made such share available on such date
in accordance with Section 2.02 and may, in reliance upon such assumption, make
available to the Borrower a corresponding amount. In such event, if a Lender has not in
fact made its share of the applicable borrowing available to the Administrative Agent, then
such Lender and the Borrower agree to pay to the Administrative Agent forthwith on demand
such corresponding amount in immediately available funds with interest thereon, for each day
from and including the date such amount is made available to the Borrower to but excluding
the date of payment to the Administrative Agent, at (A) in the case of a payment to be made
by such Lender, the greater of (1) the Federal Funds Rate and (2) a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank compensation,
plus any administrative, processing or similar fees customarily charged by the
Administrative Agent in connection with the foregoing and (B) in the case of a payment to be
made by the Borrower, the interest rate applicable to the related Loan. If the Borrower and
such Lender shall pay such interest to the Administrative Agent for the same or an
overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount
of such interest paid by the Borrower for such period. If such Lender pays its share of the
applicable borrowing to the Administrative Agent, then the amount so paid shall constitute
such Lender’s Loan included in such borrowing. Any payment by the Borrower shall be without
prejudice to



25









 






any claim the Borrower may have against a Lender that shall have failed to make such payment
to the Administrative Agent.




(ii) Unless the Administrative Agent shall have received notice from the Borrower prior
to the date on which any payment is due to the Administrative Agent for the account of the
Lenders that the Borrower will not make such payment, the Administrative Agent may assume
that the Borrower has made such payment on such date in accordance herewith and may, in
reliance upon such assumption, distribute to the Lenders the amount due. In such event, if
the Borrower has not in fact made such payment, then each of the Lenders severally agrees to
repay to the Administrative Agent forthwith on demand the amount so distributed to such
Lender in immediately available funds 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 the greater of (1) the Federal Funds Rate and (2) a rate determined
by the Administrative Agent in accordance with banking industry rules on interbank
compensation.



     A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount
owing under this subsection (b) shall be conclusive, absent manifest error.



     (c) If any Lender makes available to the Administrative Agent funds for any Loan to be
made by such Lender as provided in the foregoing provisions of this Article II, and such
funds are not made available to the Borrower by the Administrative Agent because the conditions to
the applicable Loan set forth in Article IV are not satisfied or waived in accordance with
the terms hereof, the Administrative Agent shall return such funds (in like funds as received from
such Lender) to such Lender, without interest.



     (d) The obligations of the Lenders hereunder to make Loans and to make payments pursuant
to Section 11.04(c) are several and not joint. The failure of any Lender to make any Loan
on any date required hereunder shall not relieve any other Lender of its corresponding obligation
to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so
make its Loan.



     (e) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan
in any particular place or manner or to constitute a representation by any Lender that it has
obtained or will obtain the funds for any Loan in any particular place or manner.



     2.13 Sharing of Payments. If, other than as expressly provided elsewhere herein, any
Lender shall obtain on account of the Loans made by it, any payment (whether voluntary,
involuntary, through the exercise of any right of set-off, or otherwise) in excess of its ratable
share (or other share contemplated hereunder) thereof, such Lender shall immediately (a) notify the
Administrative Agent of such fact, and (b) purchase from the other Lenders such participations in
the Loans made by them, as shall be necessary to cause such purchasing Lender to share the excess
payment in respect of such Loans, pro rata with each of them; provided, however,
that if all or any portion of such excess payment is thereafter recovered from the purchasing
Lender under any of the circumstances described in Section 11.05 (including pursuant to any
settlement entered into by the purchasing Lender in its discretion), such purchase shall to that
extent be rescinded and each other Lender shall repay to the purchasing Lender the



26









 




purchase price paid therefor, together with an amount equal to such paying Lender’s ratable
share (according to the proportion of (i) the amount of such paying Lender’s required repayment to
(ii) the total amount so recovered from the purchasing Lender) of any interest or other amount paid
or payable by the purchasing Lender in respect of the total amount so recovered, without further
interest thereon. The Borrower agrees that any Lender so purchasing a participation from another
Lender may, to the fullest extent permitted by law, exercise all its rights of payment (including
the right of set-off, but subject to Section 11.08) with respect to such participation as
fully as if such Lender were the direct creditor of the Borrower in the amount of such
participation. The Administrative Agent will keep records (which shall be conclusive and binding
in the absence of manifest error) of participations purchased under this Section 2.13 and
will in each case notify the Lenders following any such purchases or repayments. Each Lender that
purchases a participation pursuant to this Section 2.13 shall from and after such purchase
have the right to give all notices, requests, demands, directions and other communications under
this Agreement with respect to the portion of the Obligations purchased to the same extent as
though the purchasing Lender were the original owner of the Obligations purchased..




     2.14 Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary,
if any Lender becomes a Defaulting Lender, then for so long as such Lender is a Defaulting Lender,
fees shall cease to accrue on the undrawn portion of the Commitment of such Defaulting Lender
pursuant to Section 2.09.



ARTICLE III.

TAXES, YIELD PROTECTION AND ILLEGALITY




     3.01 Taxes.



     (a) Any and all payments by the Borrower to or for the account of the Administrative Agent
or any Lender under any Loan Document shall be made free and clear of and without deduction for any
and all present or future taxes, duties, levies, imposts, deductions, assessments, fees,
withholdings or similar charges, and all liabilities with respect thereto, excluding, in
the case of the Administrative Agent and each Lender, taxes imposed on or measured by its net
income, taxable income, taxable capital or similar measure and franchise taxes imposed on it (in
lieu of net income taxes), by the jurisdiction (or any political subdivision thereof) under the
Laws of which the Administrative Agent or such Lender, as the case may be, is organized or
maintains a lending office or carries on business through a permanent establishment (all such
non-excluded taxes, duties, levies, imposts, deductions, assessments, fees, withholdings or similar
charges, and liabilities being hereinafter referred to as “Taxes”). If the Borrower shall
be required by any Laws to deduct any Taxes from or in respect of any sum payable under any Loan
Document to the Administrative Agent or any Lender, (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 3.01), each of the Administrative Agent and such
Lender receives an amount equal to the sum it would have received had no such deductions been made,
(ii) the Borrower shall make such deductions, (iii) the Borrower shall pay the full amount deducted
to the relevant taxation authority or other authority in accordance with applicable Laws, and (iv)
within 30 days after the date of such payment, the Borrower shall furnish to the Administrative
Agent (which shall forward the same to such Lender) the original or a certified copy of a receipt
evidencing payment thereof.



27









 





     (b) In addition, the Borrower agrees to pay any and all present or future stamp, court or
documentary taxes and any other excise or property taxes or charges or similar levies which arise
from any payment made under any Loan Document or from the execution, delivery, performance,
enforcement or registration of, or otherwise with respect to, any Loan Document (hereinafter
referred to as “Other Taxes”).



     (c) If the Borrower shall be required to deduct or pay any Taxes or Other Taxes from or in
respect of any sum payable under any Loan Document to the Administrative Agent or any Lender, that
Borrower shall also pay to the Administrative Agent or to such Lender, as the case may be, at the
time interest is paid, such additional amount that the Administrative Agent or such Lender
specifies is necessary to preserve the after-tax yield (after factoring in all taxes, including
taxes imposed on or measured by net income) that the Administrative Agent or such Lender would have
received if such Taxes or Other Taxes had not been imposed.



     (d) The Borrower agrees to indemnify the Administrative Agent and each Lender for (i) the
full amount of Taxes and Other Taxes (including any Taxes or Other Taxes imposed or asserted by any
jurisdiction on amounts payable under this Section 3.01) paid by the Administrative Agent
and such Lender, (ii) amounts payable under Section 3.01(c) and (iii) any liability
(including additions to tax, penalties, interest and expenses) arising therefrom or with respect
thereto, in each case whether or not such Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. Payment under this Section 3.01(d) shall
be made within 30 days after the date the Lender or the Administrative Agent makes a demand
therefor.



     (e) If any Lender or Agent, as applicable, receives a refund (whether by way of a direct
payment or by offset) of any Taxes or Other Taxes paid by the Borrower under this Section
3.01 which, in the reasonable good faith judgment of such Lender or Agent, as the case may be,
is allocable to such payment, the amount of such refund (net of all reasonable out-of-pocket
expenses of such Lender or Agent) shall be paid to the Borrower if (i) payment of the Taxes or
Other Taxes being refunded has been made in full as and when required pursuant to this Section
3.01 and (ii) the Borrower agrees in writing to repay the amount of such refund, together with
interest thereon, to the applicable Lender or Agent in the event such Lender or Agent is required
to repay such refund to the Governmental Authority that imposed the Tax or Other Tax being
refunded.



     3.02 Illegality.



     (a) If any Lender determines that any Law has made it unlawful, or that any Governmental
Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office to
make, maintain or fund Eurodollar Rate Loans, or to determine or charge interest rates based upon
the Eurodollar Rate, then, on notice thereof by such Lender to the Borrower through the
Administrative Agent, any obligation of such Lender to make or continue Eurodollar Rate Loans or to
convert Base Rate Loans to Eurodollar Rate Loans shall be suspended until such Lender notifies the
Administrative Agent and the Borrower that the circumstances giving rise to such determination no
longer exist. Upon receipt of such notice, the Borrower shall, upon demand from such Lender (with
a copy to the Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate Loans of
such Lender to Base Rate Loans either on the last day of the



28









 




Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar
Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such
Eurodollar Rate Loans. Upon any such prepayment or conversion, the Borrower shall also pay accrued
interest on the amount so prepaid or converted. Each Lender agrees to designate a different
Lending Office if such designation will avoid the need for such notice and will not, in the good
faith judgment of such Lender, otherwise be materially disadvantageous to such Lender.




     (b) Upon any Lender’s giving notice and suspending its obligations relating to Eurodollar
Rate Loans in accordance with Section 3.02(a), the Borrower may replace such Lender in
accordance with Section 11.15.



     3.03 Inability to Determine Rates. If the Required Lenders determine that for any reason
adequate and reasonable means do not exist for determining the Eurodollar Base Rate for any
requested Interest Period with respect to a proposed Eurodollar Rate Loan, or that the Eurodollar
Base Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan does
not adequately and fairly reflect the cost to such Lenders of funding such Loan, the Administrative
Agent will promptly so notify the Borrower and each Lender. Thereafter, the obligation of the
Lenders to make or maintain Eurodollar Rate Loans shall be suspended until the Administrative Agent
(upon the instruction of the Required Lenders) revokes such notice. Upon receipt of such notice,
the Borrower may revoke any pending request for a borrowing of, conversion to or continuation of
Eurodollar Rate Loans or, failing that, will be deemed to have converted such request into a
request for a borrowing of Base Rate Loans in the amount specified therein.



     3.04 Increased Cost and Reduced Return; Capital Adequacy.



     (a) If any Lender determines that as a result of the introduction of or any change in or
in the interpretation of any Law, or such Lender’s compliance therewith, in either case after the
date hereof, there shall be any increase in the cost to such Lender of agreeing to make or making,
funding or maintaining Eurodollar Rate Loans, or a reduction in the amount received or receivable
by such Lender in connection with any of the foregoing (excluding for purposes of this Section
3.04(a) any such increased costs or reduction in amount resulting from (i) Taxes or Other Taxes
(as to which Section 3.01 shall govern), (ii) changes in the basis of taxation of overall
net income or overall gross income by the United States or any foreign jurisdiction or any
political subdivision of either thereof under the Laws of which such Lender is organized or has its
Lending Office, and (iii) reserve requirements utilized in the determination of the Eurodollar
Rate), then from time to time upon demand of such Lender (with a copy of such demand to the
Administrative Agent), the Borrower shall pay to such Lender such additional amounts as will
compensate such Lender for such increased cost or reduction; provided that no Lender shall
be entitled to receive additional amounts with respect to any period prior to six months prior to
making such demand.



     (b) If any Lender determines that the introduction of any Law regarding capital adequacy
or any change therein or in the interpretation thereof, in either case after the date hereof, or
compliance by such Lender (or its Lending Office) therewith, has the effect of reducing the rate of
return on the capital of such Lender or any corporation controlling such



29









 




Lender as a consequence of such Lender’s obligations hereunder (taking into consideration its
policies with respect to capital adequacy and such Lender’s desired return on capital), then from
time to time upon demand of such Lender (with a copy of such demand to the Administrative Agent),
the Borrower shall pay to such Lender such additional amounts as will compensate such Lender for
such reduction; provided that no Lender shall be entitled to receive additional amounts
with respect to any period prior to six months prior to making such demand.




     3.05 Funding Losses. Upon demand of any Lender (with a copy to the Administrative Agent)
from time to time, the Borrower shall promptly compensate such Lender for and hold such Lender
harmless from any loss, cost or expense incurred by it as a result of:



     (a) any continuation, conversion, payment or prepayment of any Eurodollar Rate Loan on a
day other than the last day of the Interest Period for such Loan (whether voluntary, mandatory,
automatic, by reason of acceleration, or otherwise);



     (b) any failure by the Borrower (for a reason other than the failure of such Lender to
make a Loan) to prepay, borrow, continue or convert any Eurodollar Rate Loan on the date or in the
amount notified by the Borrower; or



     (c) any assignment of a Eurodollar Rate Loan on a day other than the last day of the
Interest Period therefor as a result of a request by the Borrower pursuant to Section
11.15;


including any loss of anticipated profits and any loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the
deposits from which such funds were obtained.



For purposes of calculating amounts payable by the Borrower to the Lenders under this Section
3.05, each Lender shall be deemed to have funded each Eurodollar Rate Loan made by it at the
Eurodollar Base Rate used in determining the Eurodollar Rate for such Loan by a matching deposit or
other borrowing in the London interbank eurodollar market for a comparable amount and for a
comparable period, whether or not such Eurodollar Rate Loan was in fact so funded.




     3.06 Matters Applicable to all Requests for Compensation.



     (a) A certificate of the Administrative Agent or any Lender claiming compensation under
this Article III and setting forth the additional amount or amounts to be paid to it
hereunder shall be conclusive in the absence of manifest error. In determining such amount, the
Administrative Agent or such Lender may use any reasonable averaging and attribution methods.



     (b) Upon any Lender’s making a claim for compensation under Section 3.04 or if the
Borrower is required to pay amounts to any Lender under Section 3.01 as a result of any
Taxes or Other Taxes, in each case the Borrower may replace such Lender in accordance with
Section 11.15.



     3.07 Survival. All of the Borrower’s obligations under this Article III shall
survive termination of the Aggregate Commitments and repayment of all other Obligations hereunder.




30











 





ARTICLE IV.

CONDITIONS PRECEDENT




     4.01 Conditions Precedent to Loans on the Closing Date. The obligation of each Lender to
make Loans on the Closing Date is subject to the satisfaction of the following conditions
precedent:



     (a) The Administrative Agent’s receipt of the following, each of which shall be originals,
facsimiles or PDFs (followed promptly by originals) unless otherwise specified, each properly
executed by a Responsible Officer of the Borrower:




     (i) executed counterparts of this Agreement satisfying the requirements of
Section 11.10;




     (ii) a customary certificate of the Secretary or Assistant Secretary of the
Borrower attaching copies of its certificate of incorporation and by-laws as in effect on
the Closing Date, a good standing certificate for it from the Secretary of State of the
State of Delaware dated as of a recent date and resolutions of its Board of Directors
authorizing execution, delivery and performance of this Agreement and the other Loan
Documents to which it is a party; and




     (iii) a customary incumbency certificate in respect of each of the officers of the
Borrower who are authorized to sign this Agreement and the other Loan Documents on its
behalf and who will, until replaced by another officer or officers duly authorized for that
purpose, act as its representative for the purposes of signing documents and giving notices
and other communications in connection with this Agreement, the other Loan Documents and the
transactions contemplated hereby and thereby.



     (b) The Administrative Agent’s receipt of favorable opinions, addressed to the
Administrative Agent and the Lenders, of Skadden, Arps, Slate, Meagher & Flom LLP & Affiliates and
Wade Estey, Senior Counsel of the Borrower, in customary form and covering such customary matters
relating to the Borrower, the Loan Documents and the Transactions as the Administrative Agent shall
reasonably request.



     (c) Since December 31, 2009, there shall not have occurred any change or event that has
had or would reasonably be expected to have a Company Material Adverse Effect



     (d) With respect to the Company, its Subsidiaries and their respective businesses, the
representations and warranties contained in the Acquisition Agreement, in each case to the extent
material to the interests of the Lenders and to the extent the Borrower has (or a Subsidiary of the
Borrower has) the right to terminate its obligations under the Acquisition Agreement as a result of
a breach of such representations, shall be true and correct as of the Closing Date.



     (e) With respect to the Borrower, the Specified Representations shall be true and correct
as of the Closing Date.



     (f) The Acquisition shall have been consummated in accordance with the Acquisition
Agreement on or prior to December 31, 2010; provided that in the event the End



31









 




Date is extended pursuant to Section 7.1(b) of the Acquisition Agreement, such date shall be similarly
extended, but in no event later than April 30, 2011; and the Acquisition Agreement shall not have
been amended or modified, and no condition shall have been waived or consent granted, in any
respect that is materially adverse to the Lenders without the Arrangers’ prior written consent
(such consent not to be unreasonably withheld, conditioned or delayed).




     (g) The Arrangers shall have received (a) U.S. GAAP audited consolidated balance sheets
and related statements of income, stockholders’ equity and cash flows of each of the Borrower and
the Company for the three most recent fiscal years ended at least 90 days prior to the Closing Date
and (b) U.S. GAAP unaudited consolidated and (to the extent available) consolidating balance sheets
and related statements of income, stockholders’ equity and cash flows of each of the Borrower and
the Company for each subsequent fiscal quarter ended at least 60 days before the Closing Date,
which financial statements of the Borrower shall meet the requirements of Regulation S-X under the
Securities Act of 1933, as amended, and all other accounting rules and regulations of the SEC
promulgated thereunder applicable to a registration statement under such Act on Form S-1.



     (h) The Arrangers shall have received a pro forma consolidated balance sheet and related
pro forma consolidated statement of income of the Borrower as of and for the twelve-month period
ending on the last day of the most recently completed four-fiscal quarter period for which
financial statements have been delivered pursuant to (g) above, prepared after giving effect to the
Transactions as if the Transactions had occurred as of such date (in the case of such balance
sheet) or at the beginning of such period (in the case of the income statement), if such pro forma
financial statements are required by Regulation S-X under the Securities Act of 1933, as amended,
and all other accounting rules and regulations of the SEC promulgated thereunder applicable to a
registration statement under such Act on Form S-1.



     (i) The Borrower shall on the Closing Date have a Debt Rating of at least BBB+ (with
stable (or better) outlook)) from S&P and a Debt Rating of at least Baa3 (with stable (or better)
outlook)) from Moody’s.



     (j) All fees required by the Loan Documents to be paid (including fees payable on or prior
to the Closing Date pursuant to the Fee Letters) by the Borrower, and all expenses (including
Attorney Costs) required to be reimbursed by the Borrower, to the Administrative Agent, the
Arrangers or any Lender prior to the Closing Date shall have been paid, to the extent that such
invoices have been presented to the Borrower prior to the Closing Date.



     (k) The Lenders shall have received, at least five Business Days prior to the Closing
Date, all documentation and other information required by regulatory authorities under applicable
“know your customer” and anti-money laundering rules and regulations, including, without
limitation, the PATRIOT Act, in each case that has been requested in writing at least 10 days prior
to the Closing Date.



     (l) The Administrative Agent shall have received a Loan Notice from the Borrower in
accordance with the requirements hereof.



32









 





     4.02 Conditions Precedent to Subsequent Loans. The obligation of each Lender to make any
Loans subsequent to the Closing Date is subject to the following conditions precedent:



     (a) The representations and warranties of the Borrower contained in Article V or
any other Loan Document, or which are contained in any document furnished at any time under or in
connection herewith or therewith, shall be true and correct on and as of the date of such Loan,
except to the extent that such representations and warranties specifically refer to an earlier
date, in which case they shall be true and correct as of such earlier date, and except that for
purposes of this Section 4.02, the representations and warranties contained in Section
5.08(a) shall be deemed to refer to the most recent statements furnished pursuant Sections
6.01(a) and (b), respectively.



     (b) No Default shall exist, or would result from such proposed Loan.



     (c) The Administrative Agent shall have received a Loan Notice in accordance with the
requirements hereof.



     (d) The conditions specified in Section 4.01(a)-(k) shall have been satisfied.



     Each Loan Notice in satisfaction of the condition in Section 4.02(c) above submitted
by the Borrower shall be deemed to be a representation and warranty that the conditions specified
in Sections 4.02(a), and (b) have been satisfied on and as of the date of the
applicable Loan.



ARTICLE V.

REPRESENTATIONS AND WARRANTIES




     The Borrower represents and warrants to the Administrative Agent and each Lender that:



     5.01 Corporate Existence and Power. The Borrower and each of its Subsidiaries:



     (a) is duly organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization;



     (b) has the power and authority and all required governmental licenses, authorizations,
consents and approvals to own its assets, carry on its business and to execute, deliver, and
perform its obligations under the Loan Documents to which it is a party;



     (c) is duly qualified and is licensed and in good standing under the laws of each
jurisdiction where its ownership, lease or operation of property or the conduct of its business
requires such qualification or license; and



     (d) is in compliance with all Requirements of Law;


except, (i) with respect to Subsidiaries other than Material Subsidiaries, to the extent that the
failure to do so could not reasonably be expected to have a Material Adverse Effect, and (ii) with
respect to the Borrower and its Material Subsidiaries (A) in each case referred to in clause (c) or
clause (d), to the extent that the failure to do so could not reasonably be expected to have a
Material Adverse Effect and (B) in each case referred to in clause (d), the Disclosed Matters.







33









 








     5.02 Corporate Authorization; No Contravention. The execution, delivery and performance
by the Borrower of this Agreement and each other Loan Document to which the Borrower is party, and
any Borrowing as of the date of such Borrowing have been duly authorized by all necessary corporate
action, and do not and will not:



     (a) contravene the terms of the Borrower’s Organization Documents;



     (b) conflict with or result in any breach or contravention of, or the creation of any Lien
under, any document evidencing any Contractual Obligation to which the Borrower is a party or any
order, injunction, writ or decree of any Governmental Authority to which the Borrower or its
property is subject; or



     (c) violate any Requirement of Law.



     5.03 Governmental Authorization. No approval, consent, exemption, authorization, or other
action by, or notice to, or filing with, any Governmental Authority is necessary or required in
connection with the execution, delivery or performance by, or enforcement against, the Borrower of
the Agreement or any other Loan Document.



     5.04 Binding Effect. This Agreement and each other Loan Document to which the Borrower is
a party constitute the legal, valid and binding obligations of the Borrower, enforceable against
the Borrower in accordance with their respective terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, or similar laws affecting the enforcement of creditors’ rights
generally or by equitable principles relating to enforceability.



     5.05 Litigation.



     Except for the Disclosed Matters, there are no actions, suits, proceedings, claims or disputes
pending, or to the best knowledge of the Borrower, threatened or contemplated, at law, in equity,
in arbitration or before any Governmental Authority, against the Borrower, or its Subsidiaries or
any of their respective properties which:



     (a) purport to affect or pertain to this Agreement or any other Loan Document, or any of
the transactions contemplated hereby or thereby; or



     (b) if determined adversely to the Borrower or its Subsidiaries, would reasonably be
expected to have a Material Adverse Effect as of the Effective Date. No injunction, writ,
temporary restraining order or any order of any nature has been issued by any court or other
Governmental Authority purporting to enjoin or restrain the execution, delivery or performance of
this Agreement or any other Loan Document, or directing that the transactions provided for herein
or therein not be consummated as herein or therein provided.



     5.06 No Default. No Default or Event of Default exists or would result from the incurring
of any Obligations by the Borrower. As of the Effective Date, neither the Borrower nor any
Subsidiary is in default under or with respect to any Contractual Obligation in any respect which,
individually or together with all such defaults, could reasonably be expected to have a Material
Adverse Effect as of the Effective Date, or that would, if such default had occurred after the
Effective Date, create an Event of Default under Section 8.01(e).



34









 





     5.07 Use of Proceeds; Margin Regulations. The proceeds of the Loans are to be used solely
for the purposes set forth in Section 6.10. Neither the Borrower nor any Subsidiary is
generally engaged in the business of purchasing or selling Margin Stock or extending credit for the
purpose of purchasing or carrying Margin Stock.



     5.08 Financial Condition. (a) The Audited Financial Statements:




     (A) were prepared in accordance with GAAP consistently applied throughout
the period covered thereby, except as otherwise expressly noted therein, subject in
the case of the unaudited statements to ordinary, good faith year end audit
adjustments;




     (B) fairly present the financial condition of the Borrower and its
Subsidiaries as of the date thereof and results of operations for the period covered
thereby; and




     (C) show all material indebtedness and other liabilities, direct or
contingent, of the Borrower and its consolidated Subsidiaries as of the date thereof
required to be shown in accordance with GAAP.



     (b) As of the Effective Date, since March 31, 2010, there has been no Material Adverse
Effect.



     5.09 Regulated Entities. None of the Borrower, any Person controlling the Borrower, or
any Subsidiary, is or is required to be registered as an “investment company” within the meaning of
the Investment Company Act of 1940. The Borrower is not subject to regulation under the Federal
Power Act, the Interstate Commerce Act, any state public utilities code, or any other Federal,
state or other statute or regulation limiting its ability to incur Indebtedness.



     5.10 No Burdensome Restrictions. Neither the Borrower nor any Subsidiary is a party to or
bound by any Contractual Obligation, or subject to any restriction in any Organization Document, or
any Requirement of Law, which could reasonably be expected to have a Material Adverse Effect.



     5.11 Subsidiaries and Certain Liens As of the Effective Date. As of the Effective Date,
the Borrower has no Subsidiaries other than those listed in part (a) of Schedule 5.11
hereto. As of the Effective Date, part (b) of Schedule 5.11 describes all outstanding
Indebtedness of the Borrower and its Subsidiaries for borrowed money in excess of $25,000,000 that
is secured by a Lien existing on property of the Borrower or any of its Subsidiaries.



     5.12 Disclosed Matters. As of the Effective Date, based on information available to the
Borrower on the Effective Date, it is unlikely that, prior to the Maturity Date, any actions,
suits, proceedings or governmental investigations, pending or threatened, comprising or resulting
from the Disclosed Matters would materially and adversely affect the ability of the Borrower to
perform its obligations under any Loan Document.



35









 





ARTICLE VI.

AFFIRMATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation (other
than Obligations under Section 11.04(b) that remain contingent after termination of the
Commitments and payment of all other Obligations) hereunder shall remain unpaid or unsatisfied,
unless the Required Lenders waive compliance in writing:



     6.01 Financial Statements. The Borrower shall deliver to the Administrative Agent, in
form and detail satisfactory to the Administrative Agent and the Required Lenders:



     (a) as soon as available, but in any event within 70 days after the end of each fiscal
year of the Borrower, a consolidated balance sheet of the Borrower and its Subsidiaries as at the
end of such fiscal year, and the related consolidated statements of operations, shareholders’
equity and cash flows for such fiscal year, setting forth in each case in comparative form the
figures for the previous fiscal year, all in reasonable detail and prepared in accordance with
GAAP, audited and accompanied by a report and opinion of Deloitte & Touche LLP or another
nationally recognized independent certified public accountant, which report and opinion shall be
prepared in accordance with GAAP and shall not be subject to any “going concern” or like
qualification or exception or any qualification or exception as to the scope of such audit; and



     (b) as soon as available, but in any event within 55 days after the end of each of the
first three fiscal quarters of each fiscal year of the Borrower, beginning with the fiscal quarter
ending December 31, 2010, a consolidated balance sheet of the Borrower and its Subsidiaries as at
the end of such fiscal quarter, and the related consolidated statements of operations,
shareholders’ equity and cash flows for such fiscal quarter and for the portion of the Borrower’s
fiscal year then ended, setting forth in each case in comparative form the figures for the
corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the
previous fiscal year, all in reasonable detail and certified by a Responsible Officer of the
Borrower as fairly presenting the financial condition, results of operations, shareholders’ equity
and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject only to normal
year-end audit adjustments and the absence of footnotes.


As to any information contained in materials furnished pursuant to Section 6.02(b), the
Borrower shall not be separately required to furnish such information under clause (a) or (b)
above, but the foregoing shall not be in derogation of the obligation of the Borrower to furnish
the information and materials described in Sections 6.01(a) and (b) at the times
specified therein.




     6.02 Certificates; Other Information. The Borrower shall deliver to the Administrative
Agent:



     (a) concurrently with the delivery of the financial statements referred to in Sections
6.01(a) and (b), a duly completed Compliance Certificate signed by a Responsible
Officer of the Borrower;



     (b) promptly after the same are available, copies of each annual report, proxy or
financial statement or other report or communication sent to the stockholders of the Borrower, and
copies of all annual, regular, periodic and special reports and registration statements which



36









 




the Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the
Securities Exchange Act of 1934, and not otherwise required to be delivered to the Administrative
Agent pursuant hereto; and




     (c) promptly, such additional information regarding the business, financial or corporate
affairs of the Borrower or any Subsidiary, or compliance with the terms of the Loan Documents, as
the Administrative Agent or any Lender may from time to time reasonably request.



     Documents required to be delivered pursuant to Section 6.01(a) or (b) or
Section 6.02(b) (to the extent any such documents are included in materials otherwise filed
with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been
delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on
the Borrower’s website on the Internet at the website address listed on Schedule 11.02; or
(ii) on which such documents are posted on the Borrower’s behalf on IntraLinks or another similar
electronic system (a “Platform”), if any, to which each Lender and the Administrative Agent
have access (whether a commercial, third-party website or whether sponsored by the Administrative
Agent). The Administrative Agent shall have no obligation to request the delivery or to maintain
copies of the documents referred to above, and in any event shall have no responsibility to monitor
compliance by the Borrower with any such request for delivery, and each Lender shall be solely
responsible for requesting delivery to it or maintaining its copies of such documents.



     The Borrower hereby acknowledges that (a) the Administrative Agent may make available to the
Lenders materials and/or information provided by or on behalf of the Borrower under Sections
6.01(a), 6.01(b), 6.02(a) and 6.02(b) (and any other such materials
and/or information to the extent the Borrower has previously consented in writing) (collectively,
“Borrower Materials”) by posting the Borrower Materials on a Platform and (b) certain of
the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive
material non-public information with respect to the Borrower or its affiliates, or the respective
securities of any of the foregoing, and who may be engaged in investment and other market-related
activities with respect to such Persons’ securities. The Borrower hereby agrees that (a) all
Borrower Materials that are to be made available to Public Lenders shall be clearly and
conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear
prominently on the first page thereof; (b) by marking Borrower Materials “PUBLIC,” the Borrower
shall be deemed to have authorized the Administrative Agent and the Lenders to treat the Borrower
Materials as publicly available information with respect to the Borrower or its securities for
purposes of United States Federal and state securities laws; (c) all Borrower Materials marked
“PUBLIC” are permitted to be made available through a portion of a Platform designated “Public
Investor”; and (d) the Administrative Agent shall be entitled to treat any Borrower Materials that
are not marked “PUBLIC” as being suitable only for posting on a portion of a Platform not
designated “Public Investor”.



     6.03 Notices. The Borrower shall promptly notify the Administrative Agent and each
Lender:



     (a) of the occurrence of any Default;



37









 





     (b) of any matter that has resulted or could reasonably be expected to result in a
Material Adverse Effect;



     (c) promptly upon any Responsible Officer of the Borrower obtaining knowledge thereof of
(i) the institution of, or non-frivolous threat of, any action, suit, proceeding (whether
administrative, judicial or otherwise), governmental investigation or arbitration against or
affecting the Borrower or any of its Subsidiaries or any property of the Borrower or any of its
Subsidiaries (collectively “Proceedings”) not previously disclosed in writing by the
Borrower to the Lenders or (ii) any material development in any Proceeding that, in the case of
clause (i) or (ii) above, (A) has a reasonable possibility of giving rise to a Material Adverse
Effect; or (B) seeks to enjoin or otherwise prevent the consummation of, or to recover any damages
or obtain relief as a result of, the transactions contemplated hereby, together with such other
information as may be reasonably available to Borrower that the Administrative Agent requests to
enable the Administrative Agent and the Lenders to evaluate such matters;



     (d) of any material change in accounting policies or financial reporting practices by the
Borrower or any Subsidiary;



     (e) of any announcement by S&P, Moody’s or Fitch of any change or possible change in a
Debt Rating; and



     (f) of (i) the occurrence of any ERISA Event with respect to a Pension Plan or
Multiemployer Plan which has resulted or could reasonably be expected to result in liability of the
Borrower or any of its Subsidiaries in an aggregate amount in excess of $15,000,000 during the term
of this Agreement, or (ii) the existence of an amount of unfunded benefit liabilities (as defined
in Section 4001(a)(18) of ERISA), individually or in the aggregate for all Pension Plans (excluding
for purposes of such computation any Pension Plans with respect to which assets exceed benefit
liabilities), which exceeds 3% of Net Worth.



     Notification delivered to the Administrative Agent and each Lender by the Borrower under this
Section 6.03 shall satisfy the notice obligation of the Borrower hereunder. Each notice
pursuant to this Section 6.03 shall be accompanied by a statement of a Responsible Officer
of the Borrower setting forth details of the occurrence referred to therein and stating what action
the Borrower has taken and proposes to take with respect thereto. Each notice pursuant to
Section 6.03(a) shall describe with particularity any and all provisions of this Agreement
and any other Loan Document that have been breached.



     6.04 Preservation of Existence, Etc. The Borrower each shall, and shall cause its
Material Subsidiaries to, (a) preserve, renew and maintain in full force and effect its legal
existence and good standing under the Laws of the jurisdiction of its organization except in a
transaction permitted by Section 7.02 and (b) take all reasonable action to maintain all
governmental rights, privileges, permits, licenses and franchises necessary in the normal conduct
of its business, except in connection with transactions permitted by Section 7.02 and
except to the extent that failure to do so could not reasonably be expected to have a Material
Adverse Effect.



38









 





     6.05 Maintenance of Insurance. The Borrower shall, and shall cause its Material
Subsidiaries to, maintain with financially sound and reputable insurance companies, insurance
(including self-insurance) with respect to its properties and business against loss or damage of
the kinds customarily insured against by Persons engaged in the same or similar business, of such
types and in such amounts as the Borrower reasonably deems prudent from time to time.



     6.06 Payment of Taxes. The Borrower shall, and shall cause its Material Subsidiaries to,
pay and discharge as the same shall become due and payable, all tax liabilities, assessments and
governmental charges or levies upon it or its properties or assets (other than obligations that a
Responsible Officer is not aware of or are of a nominal amount), unless the same are being
contested in good faith by appropriate proceedings diligently conducted and adequate reserves in
accordance with GAAP are being maintained by the Borrower or such Subsidiary.



     6.07 Compliance with Laws. The Borrower shall, and shall cause its Material Subsidiaries
to, comply in all material respects with the Requirements of Law applicable to it or to its
business, except in such instances in which (a) a Requirement of Law is being contested in good
faith by appropriate proceedings diligently conducted; or (b) the failure to comply therewith could
not reasonably be expected to have a Material Adverse Effect.



     6.08 Books and Records. The Borrower shall, and shall cause its Material Subsidiaries to,
maintain in all material respects proper books of record and account, in which full, true and
correct entries in conformity with GAAP consistently applied shall be made of all financial
transactions and matters involving the assets and business of the Borrower and such Subsidiary, as
the case may be.



     6.09 Inspection Rights. The Borrower shall, and shall cause its Material Subsidiaries to,
permit representatives and independent contractors of the Administrative Agent and each Lender to
visit and inspect any of its properties, to examine its corporate, financial and operating records,
and make copies thereof or abstracts therefrom, and to discuss its affairs, finances and accounts
with its directors, officers, and independent public accountants, all at such reasonable times
during normal business hours and as often as may be reasonably desired, upon reasonable advance
notice to the Borrower; provided, however, that when an Event of Default exists the
Administrative Agent or any Lender (or any of their respective representatives or independent
contractors) may do any of the foregoing at the reasonable expense of the Borrower at any time
during normal business hours and without advance notice.



     6.10 Use of Proceeds. The Borrower shall use the proceeds of the Loans to (a) fund the
Acquisition, (b) repay certain outstanding indebtedness of the Company and its Subsidiaries
(including premiums payable on the Company Bonds) and (c) pay Transaction Costs and any costs
relating to any Permanent Financing, in each case not in contravention of any Law or of any Loan
Document.



ARTICLE VII.

NEGATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation (other
than Obligations under Subsection 11.04(b) that remain contingent after



39









 




termination of the Commitments and payment of all other Obligations) hereunder shall remain
unpaid or unsatisfied, unless the Required Lenders waive compliance in writing:




     7.01 Liens. The Borrower shall not, and shall not suffer or permit any of its
Subsidiaries to, directly or indirectly, create, incur, assume or suffer to exist any Lien upon any
of its property, whether now owned or hereafter acquired, other than the following (“Permitted
Liens”):



     (a) any Lien existing on property of the Borrower or any Subsidiary on the Effective Date
securing Indebtedness outstanding on such date;



     (b) any Lien created under any Loan Document;



     (c) Liens for taxes, fees, assessments or other governmental charges not yet due or which
are being contested in good faith and by appropriate proceedings diligently conducted, if adequate
reserves with respect thereto are maintained on the books of the applicable Person in accordance
with GAAP;



     (d) carriers’, warehousemen’s, mechanics’, materialmen’s, landlords’, repairmen’s or other
like Liens arising in the ordinary course of business which are not delinquent or remain payable
without penalty;



     (e) pledges or deposits required in the ordinary course of business in connection with
workers’ compensation, unemployment insurance and other social security legislation, other than any
Lien imposed by ERISA;



     (f) Liens on the property of the Borrower or any Subsidiary securing (i) the
non-delinquent performance of bids, trade contracts (other than for borrowed money), leases,
statutory obligations, (ii) contingent obligations on surety and appeal bonds, and (iii) other
non-delinquent obligations of a like nature; in each case, incurred in the ordinary course of
business, provided all such Liens in the aggregate would not (even if enforced) cause a Material
Adverse Effect;



     (g) easements, rights-of-way, restrictions and other similar encumbrances which, in the
aggregate, are not substantial in amount, and which do not in any case materially detract from the
value of the property subject thereto or materially interfere with the ordinary conduct of the
business of the applicable Person;



     (h) Liens arising solely by virtue of any statutory or common law provision relating to
banker’s liens, rights of set-off or similar rights and remedies as to deposit accounts or other
funds maintained with a creditor depository institution; provided that (i) such deposit
account is not a dedicated cash collateral account and is not subject to restrictions against
access by the Borrower in excess of those set forth by regulations promulgated by the FRB, and (ii)
such deposit account is not intended by the Borrower or any Subsidiary to provide collateral to the
depository institution;



40









 





     (i) Any other Liens (other than any Lien imposed by ERISA or any Lien for taxes, fees,
assessments or other governmental charges that is not expressly permitted under Section
7.01(c));


provided that the aggregate amount of all Permitted Liens shall not exceed at any time 25%
of Net Worth.




     7.02 Consolidations and Mergers. The Borrower shall not, and shall not suffer or permit
any of its Material Subsidiaries to, directly or indirectly, liquidate, dissolve, merge,
amalgamate, consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether
in one transaction or in a series of transactions) all or substantially all of its assets (whether
now owned or hereafter acquired) to or in favor of any Person, except:



     (a) any Subsidiary may merge with the Borrower, provided that the Borrower shall be the
continuing or surviving corporation, or with any one or more Subsidiaries, provided that if any
transaction shall be between a Subsidiary and a Wholly-Owned Subsidiary, the Wholly-Owned
Subsidiary shall be the continuing or surviving corporation;



     (b) McKesson Canada or any Subsidiary of McKesson Canada may amalgamate with McKesson
Canada or with any one or more of the Borrower’s Subsidiaries and any of the Borrower’s
Subsidiaries may amalgamate with any one or more of the Borrower’s Subsidiaries;



     (c) any Subsidiary may sell, transfer or exchange all or substantially all of its assets
(upon voluntary liquidation or otherwise) to the Borrower or a Wholly-Owned Subsidiary; and



     (d) the Borrower may merge with another Person provided that the Borrower shall be the
continuing or surviving corporation and no Default or Event of Default is in effect immediately
prior to or on the date of or would result from such merger.



     7.03 Use of Proceeds. The Borrower shall not, and shall not suffer or permit any of its
Subsidiaries to, use the proceeds of any Loan, directly or indirectly, (a) to purchase or carry
Margin Stock, (b) to repay or otherwise refinance indebtedness of the Borrower or others incurred
to purchase or carry Margin Stock, (c) to extend credit for the purpose of purchasing or carrying
any Margin Stock, or (d) to acquire any security in any transaction that is subject to Section 13
or 14 of the Securities Exchange Act of 1934.



     7.04 Maximum Debt to Capitalization Ratio. The Borrower shall not permit the ratio of
Total Debt to Total Capitalization as at the last day of any calendar month to exceed 0.565 to
1.00.



     7.05 Swap Contracts. The Borrower shall, and shall cause its Subsidiaries to, enter into
Swap Contracts only in the ordinary course of business and not for any purpose other than for
hedging an existing or anticipated underlying agreement.



41









 





ARTICLE VIII.

EVENTS OF DEFAULT AND REMEDIES




     8.01 Events of Default. Any of the following shall constitute an Event of Default:



     (a) Non-Payment. The Borrower fails to pay (i) when and as required to be paid
herein, any amount of principal of any Loan, or (ii) within five days after the same becomes due,
any interest on any Loan, or any undrawn commitment fee, duration fee or other fee due hereunder,
or any other amount payable hereunder or under any other Loan Document; or



     (b) Specific Covenants. The Borrower fails to perform or observe any term,
covenant or agreement contained Section 6.04(a) or Article VII; or



     (c) Other Defaults. The Borrower fails to perform or observe any other covenant
or agreement (not specified in Section 8.01(a) or (b)) contained in any Loan
Document on its part to be performed or observed and such failure continues for 20 days after the
earlier of (i) in the case of any provision in Article VI, the date upon which a
Responsible Officer knew of such failure or (ii) the date upon which written notice thereof is
given to the Borrower by the Administrative Agent or any Lenders; or



     (d) Representations and Warranties. Any representation, warranty, certification
or statement of fact made or deemed made by or on behalf of the Borrower herein, in any other Loan
Document, or in any document delivered in connection herewith or therewith shall be incorrect or
misleading in any material respect when made or deemed made; or



     (e) Cross-Default. (i) The Borrower or any Subsidiary (A) fails to make any
payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or
otherwise) in respect of any Indebtedness or Guarantee (other than Indebtedness hereunder and
Indebtedness under Swap Contracts) having an aggregate principal amount (including undrawn
committed or available amounts and including amounts owing to all creditors under any combined or
syndicated credit arrangement) of more than $25,000,000 and such failure continues after the
applicable grace or notice period, if any, specified in the relevant document on the date of such
failure, or (B) fails to observe or perform any other agreement or condition relating to any
Indebtedness or Guarantee (other than Indebtedness hereunder and Indebtedness under Swap Contracts)
having an aggregate principal amount (including undrawn committed or available amounts and
including amounts owing to all creditors under any combined or syndicated credit arrangement) of
more than $25,000,000 or contained in any instrument or agreement evidencing, securing or relating
thereto, and such failure continues after the applicable grace or notice period, if any, specified
in the relevant document on the date of such failure, or any other event occurs, the effect of
which default or other event is to cause, or to permit the holder or holders of such Indebtedness
or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf of such
holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required,
such Indebtedness to be demanded or to become due or to be repurchased, prepaid, defeased or
redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such
Indebtedness to be made, prior to its stated maturity, or such Guarantee to become payable or cash
collateral in respect thereof to be demanded or (ii) there occurs under any Swap Contract an Early
Termination Date (as defined in such Swap Contract) resulting from



42









 




(A) any event of default under
such Swap Contract as to which the Borrower or any Subsidiary is the Defaulting Party (as defined
in such Swap Contract) or (B) any Termination Event (as so defined) under such Swap Contract as to
which the Borrower or any Subsidiary is an Affected Party (as so defined) and, in either event, the
Swap Termination Value owed by the Borrower or such Subsidiary as a result thereof is greater than
$25,000,000; or




     (f) Insolvency; Voluntary Proceedings. The Borrower or any Material Subsidiary
(i) ceases or fails to be solvent, or generally fails to pay, or admits in writing its inability to
pay, its debts as they become due, subject to applicable grace periods, if any, whether at stated
maturity or otherwise; (ii) voluntarily ceases to conduct its business in the ordinary course;
(iii) commences any Insolvency Proceeding with respect to itself; or (iv) takes any action to
effectuate or authorize any of the foregoing; or



     (g) Involuntary Proceedings. (i) Any involuntary Insolvency Proceeding is
commenced or filed against the Borrower or any Material Subsidiary, or any writ, judgment, warrant
of attachment, execution or similar process, is issued or levied against a substantial part of the
Borrower’s or any Material Subsidiary’s properties, and any such proceeding or petition shall not
be dismissed, or such writ, judgment, warrant of attachment, execution or similar process shall not
be released, vacated or fully bonded within sixty (60) days after commencement, filing or levy;
(ii) the Borrower or any Material Subsidiary admits the material allegations of a petition against
it in any Insolvency Proceeding, or an order for relief (or similar order under non-U.S. law) is
ordered in any Insolvency Proceeding; or (iii) the Borrower or any Material Subsidiary acquiesces
in the appointment of a receiver, trustee, custodian, conservator, liquidator, mortgagee in
possession (or agent therefor), or other similar Person for itself or a substantial portion of its
property or business; or



     (h) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or
Multiemployer Plan which has resulted or could reasonably be expected to result in liability of the
Borrower or any of its Subsidiaries in an aggregate amount in excess of $25,000,000 during the term
of this Agreement, or (ii) there shall exist an amount of unfunded benefit liabilities (as defined
in Section 4001(a)(18) of ERISA), individually or in the aggregate for all Pension Plans (excluding
for purposes of such computation any Pension Plans with respect to which assets exceed benefit
liabilities), which exceeds 5% of Net Worth; or



     (i) Invalidity of Loan Documents. Any Loan Document, at any time after its
execution and delivery and for any reason other than as expressly permitted hereunder or thereunder
or satisfaction in full of all the Obligations, ceases to be in full force and effect; or the
Borrower contests in any manner the validity or enforceability of any provision of any Loan
Document; or the Borrower denies that it has any or further liability or obligation under any Loan
Document, or purports to revoke, terminate or rescind any provision of any Loan Document; or



     (j) Change of Control. There occurs any Change of Control.



     8.02 Remedies Upon Event of Default. If any Event of Default occurs and is continuing,
the Administrative Agent shall, at the request of, or may, with the consent of, the Required
Lenders, take any or all of the following actions:



43









 





     (a) declare the commitment of each Lender to make Loans to be terminated, whereupon such
commitments shall be terminated;



     (b) declare the unpaid principal amount of all outstanding Loans, all interest accrued and
unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan
Document to be immediately due and payable, without presentment, demand, protest or other
notice of any kind, all of which are hereby expressly waived by the Borrower;



     (c) [RESERVED]; and



     (d) exercise on behalf of itself and the Lenders all rights and remedies available to it
and the Lenders under the Loan Documents or applicable law;


provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to the Borrower under the Bankruptcy Code of the United States,
except in the case of Section 8.01(g)(i), in which case upon the expiration of the 60-day
period mentioned therein if the curative action mentioned in such clause is not taken, the
obligation of each Lender to make Loans shall automatically terminate and the unpaid principal
amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically
become due and payable without further act of the Administrative Agent or any Lender.




     8.03 Application of Funds. After the exercise of remedies provided for in Section
8.02 (or after the Loans and other Obligations have automatically become immediately due and
payable as set forth in the proviso to Section 8.02), any amounts received on account of
the Obligations shall be applied by the Administrative Agent in the following order:



     First, to payment of that portion of the Obligations constituting fees, indemnities,
expenses and other amounts (including Attorney Costs and amounts payable under Article III)
payable to the Administrative Agent in its capacity as such;



     Second, to payment of that portion of the Obligations constituting fees, indemnities
and other amounts (other than principal and interest) payable to the Lenders (including Attorney
Costs and amounts payable under Article III), ratably among them in proportion to the
amounts described in this clause Second payable to them;



     Third, to payment of that portion of the Obligations constituting accrued and unpaid
interest on the Loans, ratably among the Lenders in proportion to the respective amounts described
in this clause Third payable to them;



     Fourth, to payment of that portion of the Obligations constituting unpaid principal of
the Loans, ratably among the Lenders in proportion to the respective amounts described in this
clause Fourth held by them; and



     Last, the balance, if any, after all of the Obligations have been indefeasibly paid in
full, to the Borrower or as otherwise required by Law.



44









 





ARTICLE IX.

ADMINISTRATIVE AGENT




     9.01 Appointment and Authorization of Administrative Agent.



     (a) Each of the Lenders hereby irrevocably appoints Bank of America to act on its behalf
as the Administrative Agent hereunder and under the other Loan Documents, and
authorizes the Administrative Agent to take such actions on its behalf under the provisions of
this Agreement and each other Loan Document and to exercise such powers as are delegated to the
Administrative Agent by the terms hereof or thereof, together with such actions and powers as are
reasonably incidental thereto. The provisions of this Article IX are solely for the benefit of the
Administrative Agent and the Lenders and the Borrower shall not have rights as a third party
beneficiary of any of such provisions other than the provisions of Section 9.06 relating to
the Borrower’s consultation and notice rights.



     (b) Notwithstanding any provision to the contrary contained elsewhere herein or in any
other Loan Document, no Agent shall have any duties or responsibilities, except those expressly set
forth herein, nor shall the Administrative Agent have or be deemed to have any fiduciary
relationship with any Lender or participant, and no implied covenants, functions, responsibilities,
duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agent. Without limiting the generality of the foregoing
sentence, the use of the term “agent” herein and in the other Loan Documents with reference to the
Administrative Agent is not intended to connote any fiduciary or other implied (or express)
obligations arising under agency doctrine of any applicable Law. Instead, such term is used merely
as a matter of market custom, and is intended to create or reflect only an administrative
relationship between independent contracting parties.



     9.02 Rights as a Lender. The Person serving as the Administrative Agent hereunder shall
have the same rights and powers in its capacity as a Lender as any other Lender and may exercise
the same as though it were not such Administrative Agent and the term “Lender” or “Lenders” shall,
unless otherwise expressly indicated or unless the context otherwise requires, include the Person
serving as the Administrative Agent hereunder in its individual capacity. Each 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 Borrower or any
Subsidiary or other Affiliate thereof as if such Persons were not the Administrative Agent
hereunder and without any duty to account therefor to the Lenders.



     9.03 Exculpatory Provisions. The Administrative Agent shall have no duties or obligations
except those expressly set forth herein and in the other Loan Documents. Without limiting the
generality of the foregoing, the Administrative Agent:



     (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing;



     (b) shall not have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan
Documents that the Administrative Agent is required to exercise as directed in



45









 




writing by the
Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided
for herein or in the other Loan Documents), provided that the Administrative Agent shall
not be required to take any action that, in its opinion or the opinion of its counsel, may expose
the Administrative Agent to liability or that is contrary to any Loan Document or applicable law;
and




     (c) shall, except as expressly set forth herein and in the other Loan Documents, not have
any duty to disclose, and shall be liable for the failure to disclose, any information relating to
the Borrower or any of their Affiliates that is communicated to or obtained by the Person serving
as the 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 (i) 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 shall be
necessary, under the circumstances as provided in Sections 11.01 and 8.02) or (ii)
in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall
not be deemed to have knowledge of any Default unless and until notice describing such Default is
given to the Administrative Agent by the Borrower or a Lender.



     The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire
into (i) any statement, warranty or representation made in or in connection with this Agreement or
any other Loan Document, (ii) the contents of any certificate, report or other document delivered
hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance
of any of the covenants, agreements or other terms or conditions set forth herein or therein or the
occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Loan Document or any other agreement, instrument or document or (v) the
satisfaction of any condition set forth in Article IV or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the Administrative Agent.



     9.04 Delegation of Duties. The Administrative Agent may perform any and all of its duties
and exercise its rights and powers hereunder or 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 and all of its duties and exercise its rights and powers by or through
their respective Related Parties. 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.



     9.05 Reliance by Administrative Agent. The Administrative Agent shall be entitled to rely
upon, 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 or Persons. The
Administrative Agent also may rely upon any statement made to it orally or by telephone and
believed by it to have been made by the proper Person, and shall not incur any liability for
relying thereon. In determining compliance with any condition hereunder to the making of a



46









 




Loan that by its terms must be fulfilled to the satisfaction of a Lender, the Administrative Agent may
presume that such condition is satisfactory to such Lender unless the Administrative Agent shall
have received notice to the contrary from such Lender prior to the making of such Loan. The
Administrative Agent may consult with legal counsel (who may be counsel for the 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.




     9.06 Successor Administrative Agent. The Administrative Agent may at any time give notice
of its resignation to the Lenders and the Borrower. Upon receipt of any such notice of
resignation, the Required Lenders shall have the right, in consultation with the Borrower, to
appoint a successor, which, in the case of the Administrative Agent, shall be a bank with an office
in the United States, or an Affiliate of any such bank with an office in the United States. If no
such successor shall have been so appointed by the Required Lenders 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 appoint a successor
Administrative Agent meeting the qualifications set forth above; provided that if the
Administrative Agent shall notify the Borrower and the Lenders that no qualifying Person has
accepted such appointment, then such resignation shall nonetheless become effective in accordance
with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Loan Documents and (b) all payments, communications and
determinations provided to be made by, to or through the Administrative Agent shall instead be made
by or to each Lender directly, until such time as the Required Lenders appoint a successor
Administrative Agent as provided for above in this Section. Upon the acceptance of a successor’s
appointment as Administrative Agent hereunder, such successor shall succeed to and become vested
with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative
Agent and the retiring Administrative Agent shall be discharged from all of its duties and
obligations hereunder or under the other Loan Documents (if not already discharged therefrom as
provided above in this Section). The fees payable by the Borrower to a successor Administrative
Agent shall be the same as those payable to its predecessor unless otherwise agreed between the
Borrower and such successor. After the retiring Administrative Agent’s resignation hereunder and
under the other Loan Documents, the provisions of this Article and Section 11.04 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 taken by any of them
while the retiring Administrative Agent was acting as the Administrative Agent.



     9.07 Non-Reliance on Administrative Agent and Other Lenders. Each Lender acknowledges
that it has, independently and without reliance upon the Administrative Agent or any other Lender
or any of their Related Parties 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
also acknowledges that it will, independently and without reliance upon the Administrative Agent or
any other Lender or any of their Related Parties 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.



47









 





     9.08 No Other Duties, Etc. Neither the Syndication Agent nor either of the Arrangers
shall have any duties or responsibilities under this Agreement or any of the other Loan Documents,
except in its capacity, as applicable, as a Lender hereunder. Without limiting the foregoing, none
of the Lenders, the Syndication Agent or the Arrangers shall have or be deemed to have any
fiduciary relationship with any Lender. Each Lender acknowledges that it has not
relied, and will not rely, on any of the other Lenders, the Syndication Agent or the Arrangers
in deciding to enter into this Agreement or in taking or not taking action hereunder.



     9.09 Administrative Agent May File Proofs of Claim. In case of the pendency of any
proceeding under any Debtor Relief Law or any other judicial proceeding relative to the Borrower,
the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of whether the
Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered,
by intervention in such proceeding or otherwise:



     (a) to file and prove a claim for the whole amount of the principal and interest owing and
unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such
other documents as may be necessary or advisable in order to have the claims of the Lenders and the
Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements
and advances of the Lenders and the Administrative Agent and their respective agents and counsel
and all other amounts due the Lenders and the Administrative Agent under Sections 2.09 and
11.04) allowed in such judicial proceeding; and



     (b) to collect and receive any monies or other property payable or deliverable on any such
claims and to distribute the same;


and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender to make such payments to the
Administrative Agent and, in the event that the Administrative Agent shall consent to the making of
such payments directly to the Lenders, to pay to the Administrative Agent any amount due for the
reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its
agents and counsel, and any other amounts due the Administrative Agent under Sections 2.09
and 11.04.




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



ARTICLE X.

[RESERVED]




ARTICLE XI.

MISCELLANEOUS



     11.01 Amendments, Etc. No amendment or waiver of any provision of this Agreement or any
other Loan Document, and no consent to any departure by the Borrower therefrom, shall



48









 




be effective
unless in writing signed by the Required Lenders and the Borrower and acknowledged by the
Administrative Agent, and each such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given; provided, however, that no
such amendment, waiver or consent shall:




     (a) [reserved];



     (b) extend or increase the Commitment of any Lender (or reinstate any Commitment
terminated pursuant to Section 8.02) without the written consent of such Lender;



     (c) postpone any date fixed by this Agreement or any other Loan Document for any payment
of principal, interest, fees or other amounts due to the Lenders (or any of them) hereunder or
under any other Loan Document without the written consent of each Lender directly affected thereby;



     (d) reduce the principal of, or the rate of interest specified herein on, any Loan, or
(subject to clause (ii) of the second proviso to this Section 11.01) any fees or other
amounts payable hereunder or under any other Loan Document without the written consent of each
Lender directly affected thereby; provided, however, that only the consent of the
Required Lenders shall be necessary to amend the definition of “Default Rate” or to waive any
obligation of the Borrower to pay interest at the Default Rate;



     (e) change Section 2.13 or Section 8.03 in a manner that would alter the
pro rata sharing of payments required thereby without the written consent of each Lender; or



     (f) change any provision of this Section 11.01 or the definition of “Required
Lenders” or any other provision hereof specifying the number or percentage of Lenders required to
amend, waive or otherwise modify any rights hereunder or make any determination or grant any
consent hereunder, without the written consent of each Lender;


and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the Administrative Agent in addition to the Lenders required above, affect
the rights or duties of the Administrative Agent under this Agreement or any other Loan Document
and (ii) the Fee Letters may be amended, or rights or privileges thereunder waived, only in a
writing executed by the parties thereto. Notwithstanding anything to the contrary herein, no
Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent
hereunder, except that the Commitment of such Lender may not be increased or extended without the
consent of such Lender.




     11.02 Notices and Other Communications; Facsimile Copies.



     (a) General. Except in the case of notices and other communications expressly
permitted to be given by telephone (and except as provided in subsection (b) below), all notices
and other communications provided for hereunder shall be in writing and shall be delivered by hand
or overnight courier service, mailed by certified or registered mail or sent by telecopier as
follows, and all notices and other communications expressly permitted hereunder to be given by
telephone shall be made to the applicable telephone number, as follows:



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     (i) if to the Borrower or the Administrative Agent, to the address, facsimile
number, electronic mail address or telephone number specified for such Person on
Schedule 11.02; and




     (ii) if to any other Lender, to the address, facsimile number, electronic mail
address or telephone number specified in its Administrative Questionnaire.



     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 telecopier 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). Notices delivered through electronic communications to the extent provided in
subsection (b) below, shall be effective as provided in such subsection (b).



     (b) Electronic Communications. All notices hereunder to the Borrower shall be in
writing and shall be delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopier (or, to the extent permitted hereunder to be given by
telephone, immediately confirmed in a writing so delivered, mailed or sent). Notices and other
communications to the Lenders hereunder may be delivered or furnished by electronic communication
(including e-mail and Internet or intranet websites) pursuant to procedures approved by the
Administrative Agent, provided that the foregoing shall not apply to notices to any Lender
pursuant to Article II if such Lender has notified the Administrative Agent that it is
incapable of receiving notices under such Article by electronic communication. The Administrative
Agent or the 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.



     Unless the Administrative Agent otherwise prescribes, (i) notices and other communications
sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement
from the intended recipient (such as by the “return receipt requested” function, as available,
return e-mail or other written acknowledgement), provided that if such notice or other
communication is not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on the next business day
for the recipient, and (ii) notices or communications posted to an Internet or intranet website
shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as
described in the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.



     (c) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT
PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR
THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE
BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR
FREEDOM FROM VIRUSES OR



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OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE
BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any of its
Related Parties (collectively, the “Agent Parties”) have any liability to the Borrower, any
Lender or any other Person for losses, claims, damages, liabilities or expenses of
any kind (whether in tort, contract or otherwise) arising out of the Borrower’s or the
Administrative Agent’s transmission of Borrower Materials through the internet, except to the
extent that such losses, claims, damages, liabilities or expenses are determined by a court of
competent jurisdiction by a final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Agent Party; provided, however, that in no
event shall any Agent Party have any liability to the Borrower, any Lender or any other Person for
indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual
damages).




     (d) Change of Address, Etc. Each of the Borrower and the Administrative Agent may
change its address, facsimile number, electronic mail address or telephone number for notices and
other communications hereunder by notice to the other parties hereto. Each other Lender may change
its address, facsimile number, electronic mail address or telephone number for notices and other
communications hereunder by notice to the Borrower and the Administrative Agent. Furthermore, each
Public Lender (as defined in Section 6.02) agrees to cause at least one individual at or on
behalf of such Public Lender to at all times have selected the “Private Side Information” or
similar designation on the content declaration screen of the Platform (as defined in Section
6.02) in order to enable such Public Lender or its delegate, in accordance with such Public
Lender’s compliance procedures and applicable Law, including United States Federal and state
securities Laws, to make reference to Borrower Materials (as defined in Section 1.01) that
are not made available through the “Public Side Information” portion of the Platform and that may
contain material non-public information with respect to the Borrower or its securities for purposes
of United States Federal or state securities laws.



     (e) Reliance by Administrative Agent and Lenders. The Administrative Agent and
Lender shall be entitled to rely and act upon any notices (including telephonic Loan Notices)
purportedly given by or on behalf of the Borrower which the Administrative Agent or Lender believes
in good faith to have been given by a duly authorized officer or other person authorized to borrow
on behalf of the Borrower even if (i) such notices were not made in a manner specified herein, were
incomplete or were not preceded or followed by any other form of notice specified herein, or (ii)
the terms thereof, as understood by the recipient, varied from any confirmation thereof. The
Borrower shall indemnify the Administrative Agent, each Lender and the Related Parties of each of
them from all losses, costs, expenses and liabilities resulting from the reliance by such Person on
each notice purportedly given by or on behalf of the Borrower. All telephonic notices to and other
communications with an Agent may be recorded by the Administrative Agent, and each of the parties
hereto hereby consents to such recording.



     11.03 No Waiver; Cumulative Remedies. No failure by any Lender or the Administrative
Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or
privilege hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.



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     11.04 Expenses; Indemnity; Damage Waiver.



     (a) Costs and Expenses. The Borrower agrees (i) to pay or reimburse the
Administrative Agent, the Arrangers and the Syndication Agent for all reasonable and documented
out-of-pocket costs and expenses (including, without limitation, reasonable and documented
out-of-pocket fees, disbursements and other charges of Davis Polk & Wardwell LLP) incurred in
connection with the syndication of the credit facility provided for herein, and the preparation and
administration of this Agreement and the other Loan Documents and any amendments, modifications and
waivers thereto (whether or not the transactions contemplated hereby or thereby are consummated),
and the consummation and administration of the transactions contemplated hereby and thereby,
including all Attorney Costs and (ii) to pay or reimburse the Administrative Agent, the Arrangers,
the Syndication Agent and each Lender for all costs and expenses incurred in connection with the
enforcement, attempted enforcement, or preservation of any rights or remedies under this Agreement
or the other Loan Documents (including all such costs and expenses incurred during any “workout” or
restructuring in respect of the Obligations and during any legal proceeding, including any
proceeding under any Debtor Relief Law), including all Attorney Costs. The foregoing costs and
expenses shall include all search, filing, recording, title insurance and appraisal charges and
fees and taxes related thereto, and other out-of-pocket expenses incurred by the Administrative
Agent and the cost of independent public accountants and other outside experts retained by the
Administrative Agent, the Arrangers, the Syndication Agent or any Lender. All amounts due under
this Section 11.04 shall be payable within 20 Business Days after demand therefor.



     (b) Indemnification by the Borrower. Whether or not the transactions contemplated
hereby are consummated, the Borrower shall indemnify and hold harmless the Administrative Agent
(and any sub-agent thereof), the Arrangers, the Syndication Agent, each Lender and each Related
Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) from
and against any and all liabilities, obligations, losses, damages, penalties, claims, demands,
actions, judgments, suits, costs, expenses and disbursements (including reasonable Attorney Costs
of one counsel for all Indemnitees (and, if reasonably necessary, of one local counsel in any
relevant jurisdiction) unless, in the reasonable opinion of an Indemnitee, representation of all
Indemnitees by such counsel would be inappropriate due to the existence of an actual or potential
conflict of interest)) of any kind or nature whatsoever which may at any time be imposed on,
incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in
connection with (i) the execution, delivery, enforcement, performance or administration of any Loan
Document or any other agreement, letter or instrument delivered in connection with the transactions
contemplated thereby or the consummation of the Transactions (including the Acquisition or any
transaction in connection therewith), (ii) any Commitment, Loan or the use or proposed use of the
proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous Materials on or
from any property owned or operated by the Borrower or any of its Subsidiaries, or any
Environmental Liability related in any way to the Borrower or any of its Subsidiaries or (iv) any
actual or prospective claim, litigation, investigation or proceeding relating to any of the
foregoing, whether based on contract, tort or any other theory (including any investigation of,
preparation for, or defense of any pending or threatened claim, investigation, litigation or
proceeding) and regardless of whether any Indemnitee is a party thereto (all the foregoing,
collectively, the “Indemnified Liabilities”); provided that such indemnity shall
not, as to any Indemnitee, be available to the extent that such liabilities,



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obligations, losses,
damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements
are determined by a court of competent jurisdiction by final and
nonappealable judgment to have resulted from (x) such Indemnitee’s bad faith, gross negligence
or willful misconduct or (y) non-tort claims by the Borrower against such Indemnitee that are
successful on the merits as determined by a court of competent jurisdiction by final and
nonappealable judgment.




     (c) Reimbursement by Lenders. To the extent that the Borrower for any reason
fails to indefeasibly pay any amount required under subsection (a) or (b) of this Section to be
paid by it to the Administrative Agent (or any sub-agent thereof) or any Related Party of any of
the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such
sub-agent) 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 any such sub-agent) 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) in connection
with such capacity. The obligations of the Lenders under this subsection (b) are subject to the
provisions of Section 2.12(d).



     (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, neither the Borrower shall nor any Indemnitee shall assert, and the Borrower and
each Indemnitee hereby waives, any claim against the Borrower and any Indemnitee, 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, any other Loan
Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby
or thereby, any Loan or the use of the proceeds thereof. No Indemnitee referred to in subsection
(b) above shall be liable for any damages arising from the use by unintended recipients of any
information or other materials distributed by it through telecommunications, electronic or other
information transmission systems in connection with this Agreement or the other Loan Documents or
the transactions contemplated hereby or thereby.



     (e) Payments. All amounts due under this Section shall be payable not later than
20 Business Days after demand therefor.



     (f) Survival. The agreements in this Section 11.04 shall survive the
resignation of the Administrative Agent, the replacement of any Lender, the termination of the
Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations.



     11.05 Payments Set Aside. To the extent that any payment by or on behalf of the Borrower
is made to the Administrative Agent or any Lender, or the Administrative Agent or any Lender
exercises its right of set-off, and such payment or the proceeds of such set-off or any part
thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or
required (including pursuant to any settlement entered into by the Administrative Agent or such
Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection
with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such
recovery, the obligation or part thereof originally intended to be satisfied shall be revived and
continued in



53









 




full force and effect as if such payment had not been made or such set-off had not
occurred, and (b) each Lender severally agrees to pay to the Administrative Agent upon demand its
applicable share of any amount so recovered from or repaid by the Administrative Agent, plus interest
thereon from the date of such demand to the date such payment is made at a rate per annum equal to
the Federal Funds Rate from time to time in effect.




     11.06 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, except that the
Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without
the prior written consent of the Administrative Agent and each Lender and no Lender may assign or
otherwise transfer any of its rights or obligations hereunder except (i) to an Eligible Assignee in
accordance with the provisions of Section 11.06(b), (ii) by way of participation in
accordance with the provisions of Section 11.06(d) or (iii) by way of pledge or assignment
of a security interest subject to the restrictions of Sections 11.06(f) (and any other
attempted assignment or transfer by any party hereto 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, Participants to the
extent provided in Section 11.06(d) and, to the extent expressly contemplated hereby, the
Indemnitees) any legal or equitable right, remedy or claim under or by reason of this Agreement.



     (b) Any Lender may at any time 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 undrawn
Commitment and the Loans at the time owing to it); provided that (i) except in the case of
an assignment of the entire remaining amount of the assigning Lender’s undrawn Commitment and the
Loans at the time owing to it or in the case of an assignment to a Lender or an Affiliate of a
Lender or an Approved Fund with respect to a Lender, the aggregate amount of the undrawn Commitment
and/or Loans 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 or, if “Trade
Date” is specified in the Assignment and Assumption, as of the Trade Date, shall not be less than
$2,500,000 and increments of $1,000,000 in excess thereof, unless each of the Administrative Agent
and, so long as no Event of Default has occurred and is continuing, the Borrower otherwise consents
(each such consent not to be unreasonably withheld or delayed); (ii) each partial assignment shall
be made as an assignment of a proportionate part of all the assigning Lender’s rights and
obligations under this Agreement with respect to the Loans or the Commitment assigned and (iii) the
parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and
Assumption and (except in the case of an assignment by a Lender to its Affiliate) a processing and
recordation fee of $3,500, provided, however, that the Administrative Agent may in
its sole discretion elect to waive such processing and recordation fee in the case of any
assignment, and the Eligible Assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire. Subject to acceptance and recording thereof
by the Administrative Agent pursuant to Section 11.06(c), from and after the effective date
specified in each Assignment and Assumption, the Eligible Assignee thereunder shall be a party to
this Agreement 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



54









 




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 3.01, 3.04, 3.05 and
11.04 with respect to facts and circumstances occurring prior to the effective date of such
assignment). Upon request, the Borrower (at its expense) shall execute and deliver a Note to the
assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this Section 11.06(b) 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 Section 11.06(d).




     (c) The Administrative Agent, acting solely for this purpose as an agent of the Borrower,
shall maintain at the Administrative Agent’s Office 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 of and interest on the Loans 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 Borrower, the Administrative Agent and the Lenders shall
treat each Person whose name is recorded in the Register pursuant to the terms hereof as the
absolute owner of any Obligations held by such Person, as indicated in the Register for all
purposes, notwithstanding notice to the contrary. The Register shall be available for inspection
by the Borrower, at any reasonable time and from time to time upon reasonable prior notice. In
addition, at any time that a request for a consent for a material or substantive change to the Loan
Documents is pending, any Lender wishing to consult with other Lenders in connection therewith may
request and receive from the Administrative Agent a copy of the Register.



     (d) Any Lender may at any time, without the consent of or notice to any other Person, sell
participations to any Person (other than a natural person or the Borrower or any of the Borrower’s
Affiliates or Subsidiaries) (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 Commitment and/or
the Loans owing to it); provided that (i) unless a Default or Event of Default has occurred
and is continuing, the Borrower shall have approved the sale of participations to such Person (such
approval not to be unreasonably withheld or delayed); (ii) such Lender’s obligations under this
Agreement shall remain unchanged; (iii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations; and (iv) the Borrower, the Administrative
Agent 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 this Agreement and to approve any amendment, modification or
waiver of any provision of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant, agree to any amendment,
waiver or other modification described in the first proviso to Section 11.01 that directly
affects such Participant. Subject to Section 11.06(e), the Borrower agree that each
Participant shall be entitled to the benefits of Sections 3.01, 3.04 and
3.05 to the same extent as if it were a Lender and had acquired its interest by assignment
pursuant to Section 11.06(b). 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 2.13 as though it were a Lender.



55









 





     (e) A Participant shall not be entitled to receive any greater payment under Section
3.01 or 3.04 than the applicable Lender would have been entitled to receive with
respect to the
participation sold to such Participant, unless the sale of the participation to such
Participant is made with the Borrower’s prior written consent. A Participant that would be a
Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 3.01
unless the Borrower is notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with Section 11.14 as though it were a
Lender.



     (f) Any Lender may at any time pledge or assign a security interest in all or any portion
of its rights under this Agreement (including under its Note, if any) to secure obligations of such
Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank;
provided that no such pledge or assignment shall release such Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.



     (g) As used herein, the following terms have the following meanings:




     “Eligible Assignee” means (a) a Lender; (b) an Affiliate of a Lender; (c) an
Approved Fund; and (d) any other Person (other than a natural person) approved by (i) the
Administrative Agent, and (ii) unless a Default or an Event of Default has occurred and is
continuing, the Borrower (each such approval not to be unreasonably withheld or delayed);
provided that notwithstanding the foregoing, “Eligible Assignee” shall not include
(x) the Borrower or any of the Borrower’s Affiliates or Subsidiaries or (y) any Defaulting
Lender.



     (h) [RESERVED].



     (i) Notwithstanding anything to the contrary contained herein, any Lender that is a Fund
may create a security interest in all or any portion of the Loans owing to it and the Note, if any,
held by it to the trustee for holders of obligations owed, or securities issued, by such Fund as
security for such obligations or securities, provided that unless and until such trustee
actually becomes a Lender in compliance with the other provisions of this Section 11.06,
(a) no such pledge shall release the pledging Lender from any of its obligations under the Loan
Documents and (b) such trustee shall not be entitled to exercise any of the rights of a Lender
under the Loan Documents even though such trustee may have acquired ownership rights with respect
to the pledged interest through foreclosure or otherwise. For purposes of this Section
11.06(i), “Fund” means any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial loans and similar
extensions of credit in the ordinary course of its business.



     (j) [RESERVED].



     (k) Electronic Execution of Assignments. The words “execution,” “signed,”
“signature,” and words of like import in any Assignment and Assumption shall be deemed to include
electronic signatures or the keeping of records in electronic form, each of which shall be of the
same legal effect, validity or enforceability as a manually executed signature or the use of a
paper-based recordkeeping system, as the case may be, to the extent and as provided for in any



56









 




applicable law, including the Federal Electronic Signatures in Global and National Commerce Act,
the New York State Electronic Signatures and Records Act, or any other similar state laws based on
the Uniform Electronic Transactions Act.




     11.07 Treatment of Certain Information; Confidentiality.



     Each of the Administrative Agent and Lenders agrees to maintain, and to cause its Affiliates
(including any Related Parties) to maintain, the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its Affiliates and to its and its
Affiliates’ respective partners, directors, officers, employees, agents, advisors and
representatives (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 regulatory authority purporting to have
jurisdiction over it (including any self-regulatory authority, such as the National Association of
Insurance Commissioners); (c) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process; (d) to any other party hereto; (e) to the extent reasonably
required, in connection with the exercise of any remedies hereunder or under any other Loan
Document or any 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 obligations of the Borrower under the Loan Documents; (g) with the consent of the
Borrower; or (h) to the extent such Information (i) becomes publicly available other than as a
result of a breach of this Section or (ii) becomes available to the Administrative Agent, any
Lender or any of their respective Affiliates on a nonconfidential basis from a source other than
the Borrower; provided, however, that to the extent permitted by applicable law or
regulation, each of the Administrative Agent and Lenders agrees to notify the Borrower prior to (if
reasonably practicable) or concurrently with its disclosure of such information to any third party
pursuant to clauses (b), (c) and (f). In addition, the Administrative Agent and the Lenders may
disclose the existence of this Agreement and public information about this Agreement to market data
collectors, similar service providers to the lending industry, and service providers to the
Administrative Agent and the Lenders in connection with the administration and management of this
Agreement, the other Loan Documents, the Commitments, and the Loans.



     For the purposes of this Section, “Information” means all information received from
the Borrower relating to the Borrower or its business, other than any such information that is
available to the Administrative Agent or any Lender or any of their respective Affiliates on a
nonconfidential basis prior to disclosure by the Borrower; provided that, in the case of
information received from the Borrower after the date hereof, such information is clearly
identified at the time of delivery as confidential. 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.



57









 





     Each of the Administrative Agent and each of the Lenders acknowledges that (a) the Information
may include material non-public information concerning the Borrower or a Subsidiary, as the case
may be, (b) it has developed compliance procedures regarding the use of
material non-public information and (c) it will handle such material non-public information in
accordance with applicable Law, including United States federal and state securities Laws.



     11.08 Set-off. In addition to any rights and remedies of the Lenders provided by law,
upon the occurrence and during the continuance of any Event of Default, each Lender is authorized
at any time and from time to time, without prior notice to the Borrower, any such notice being
waived by the Borrower 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 by, and other
indebtedness at any time owing by, such Lender to or for the credit or the account of the Borrower
against any and all Obligations owing to such Lender hereunder or under any other Loan Document,
now or hereafter existing, irrespective of whether or not the Administrative Agent or such Lender
shall have made demand under this Agreement or any other Loan Document and although such
Obligations may be contingent or unmatured or denominated in a currency different from that of the
applicable deposit or indebtedness. Each Lender agrees promptly to notify the Borrower and the
Administrative Agent after any such set-off and application made by such Lender; provided,
however, that the failure to give such notice shall not affect the validity of such set-off
and application.



     11.09 Interest Rate Limitation. Notwithstanding anything to the contrary contained in any
Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the
maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If
the Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum
Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such
unpaid principal, refunded to the Borrower. In determining whether the interest contracted for,
charged, or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person
may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal
as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the
effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the
total amount of interest throughout the contemplated term of the Obligations hereunder.



     11.10 Counterparts; Effectiveness. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which together shall constitute
one and the same instrument. 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.



     11.11 Integration. This Agreement, together with the other Loan Documents, comprises the
complete and integrated agreement of the parties on the subject matter hereof and thereof and
supersedes all prior agreements, written or oral, on such subject matter. In the event of any
conflict between the provisions of this Agreement and those of any other Loan Document, the
provisions of this Agreement shall control; provided that the inclusion of supplemental
rights



58









 




or remedies in favor of the Administrative Agent or the Lenders in any other Loan Document
shall not be deemed a conflict with this Agreement. Each Loan Document was drafted with the
joint participation of the respective parties thereto and shall be construed neither against
nor in favor of any party, but rather in accordance with the fair meaning thereof.




     11.12 Survival of Representations and Warranties. All representations and warranties made
hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or
in connection herewith or therewith shall survive the execution and delivery hereof and thereof.
Such representations and warranties have been or will be relied upon by the Administrative Agent
and each Lender, regardless of any investigation made by the Administrative Agent or any Lender or
on their behalf and notwithstanding that the Administrative Agent or any Lender may have had notice
or knowledge of any Default at the time of any Loan, and shall continue in full force and effect as
long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied.



     11.13 Severability. If any provision of this Agreement or the other Loan Documents is
held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the
remaining provisions of this Agreement and the other Loan Documents shall not be affected or
impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the
illegal, invalid or unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable provisions. The
invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction.



     11.14 Tax Forms. (a) (i) Each Lender that is not a “United States person” within the
meaning of Section 7701(a)(30) of the Code (a “Foreign Lender”) shall deliver to the
Administrative Agent, prior to receipt of any payment subject to withholding under the Code (or
upon accepting an assignment of an interest herein), two duly signed completed copies of either IRS
Form W-8BEN or any successor thereto (relating to such Foreign Lender and entitling it to an
exemption from, or reduction of, withholding tax on all payments to be made to such Foreign Lender
by the Borrower pursuant to this Agreement) or IRS Form W-8ECI or any successor thereto (relating
to all payments to be made to such Foreign Lender by the Borrower pursuant to this Agreement) or
such other evidence satisfactory to the Borrower and the Administrative Agent that such Foreign
Lender is entitled to an exemption from, or reduction of, U.S. withholding tax, including any
exemption pursuant to Section 881(c) of the Code. Thereafter and from time to time, each such
Foreign Lender shall (A) promptly submit to the Administrative Agent such additional duly completed
and signed copies of one of such forms (or such successor forms as shall be adopted from time to
time by the relevant United States taxing authorities) as may then be available under then current
United States laws and regulations to avoid, or such evidence as is satisfactory to the Borrower
and the Administrative Agent of any available exemption from or reduction of, United States
withholding taxes in respect of all payments to be made to such Foreign Lender by the Borrower
pursuant to this Agreement, (B) promptly notify the Administrative Agent of any change in
circumstances which would modify or render invalid any claimed exemption or reduction, and (C) take
such steps as shall not be materially disadvantageous to it, in the reasonable judgment of such
Lender, and as may be reasonably necessary (including the re-designation of its Lending Office) to
avoid any requirement of



59









 




applicable Laws that the Borrower make any deduction or withholding for
taxes from amounts payable to such Foreign Lender.





     (ii) Each Foreign Lender, to the extent it does not act or ceases to act for its
own account with respect to any portion of any sums paid or payable to such Lender under any
of the Loan Documents (for example, in the case of a typical participation by such Lender),
shall deliver to the Administrative Agent on the date when such Foreign Lender ceases to act
for its own account with respect to any portion of any such sums paid or payable, and at
such other times as may be necessary in the determination of the Administrative Agent (in
the reasonable exercise of its discretion), (A) two duly signed completed copies of the
forms or statements required to be provided by such Lender as set forth above, to establish
the portion of any such sums paid or payable with respect to which such Lender acts for its
own account that is not subject to U.S. withholding tax, and (B) two duly signed completed
copies of IRS Form W-8IMY (or any successor thereto), together with any information such
Lender chooses to transmit with such form, and any other certificate or statement of
exemption required under the Code, to establish that such Lender is not acting for its own
account with respect to a portion of any such sums payable to such Lender.




     (iii) The Borrower shall not be required to pay any additional amount to any
Foreign Lender under Section 3.01 (A) with respect to any Taxes required to be
deducted or withheld on the basis of the information, certificates or statements of
exemption such Lender transmits with an IRS Form W-8IMY pursuant to this Section
11.14(a) or (B) if such Lender shall have failed to satisfy the foregoing provisions of
this Section 11.14(a); provided that if such Lender shall have satisfied the
requirement of this Section 11.14(a) on the date such Lender became a Lender or
ceased to act for its own account with respect to any payment under any of the Loan
Documents, nothing in this Section 11.14(a) shall relieve the Borrower of its
obligation to pay any amounts pursuant to Section 3.01 in the event that, as a
result of any subsequent change in any applicable law, treaty or governmental rule,
regulation or order, or any subsequent change in the interpretation, administration or
application thereof, such Lender is no longer properly entitled to deliver forms,
certificates or other evidence at a subsequent date establishing the fact that such Lender
or other Person for the account of which such Lender receives any sums payable under any of
the Loan Documents is not subject to withholding or is subject to withholding at a reduced
rate.




     (iv) The Administrative Agent may, without reduction, withhold any Taxes required
to be deducted and withheld from any payment under any of the Loan Documents with respect to
which the Borrower is not required to pay additional amounts under this Section
11.14(a).



     (b) Upon the request of the Administrative Agent, each Lender that is a “United States
person” within the meaning of Section 7701(a)(30) of the Code shall deliver to the Administrative
Agent two duly signed completed copies of IRS Form W-9. If such Lender fails to deliver such
forms, then the Administrative Agent may withhold from any interest payment to such Lender an
amount equivalent to the applicable back-up withholding tax imposed by the Code, without reduction.



60









 





     (c) If any Governmental Authority asserts that the Administrative Agent did not properly
withhold or backup withhold, as the case may be, any tax or other amount from
payments made to or for the account of any Lender, such Lender shall indemnify the
Administrative Agent therefor, including all penalties and interest, any taxes imposed by any
jurisdiction on the amounts payable to the Administrative Agent under this Section 11.14,
and costs and expenses (including Attorney Costs) of the Administrative Agent. The obligation of
the Lenders under this Section 11.14 shall survive the termination of the Aggregate
Commitments, repayment of all other Obligations hereunder and the resignation of the Administrative
Agent.



     11.15 Replacement of Lenders. If any Lender requests compensation under Section
3.04, or if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01, or if any
Lender is a Defaulting Lender, or if any other circumstance exists hereunder that gives the
Borrower the right to replace a Lender as a party hereto, then the Borrower 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, and consents required by, Section 11.06), all of its interests, rights and obligations
under this Agreement and the related Loan Documents to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such assignment), provided
that:



     (a) the Borrower shall have paid to the Administrative Agent the assignment fee specified
in Section 11.06(b);



     (b) such Lender shall have received payment of an amount equal to the outstanding
principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it
hereunder and under the other Loan Documents (including any amounts under Section 3.05)
from the assignee (to the extent of such outstanding principal and accrued interest and fees) or
the Borrower (in the case of all other amounts);



     (c) in the case of any such assignment resulting from a claim for compensation under
Section 3.04 or payments required to be made pursuant to Section 3.01, such
assignment will result in a reduction in such compensation or payments thereafter; and



     (d) such assignment does not conflict with applicable Laws.



     A Lender shall not be required to make any such assignment or delegation if, prior thereto, as
a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to
require such assignment and delegation cease to apply.



     11.16 Governing Law.



     (a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK ; PROVIDED THAT THE ADMINISTRATIVE AGENT AND EACH LENDER SHALL RETAIN ALL
RIGHTS ARISING UNDER FEDERAL LAW.



61









 





     (b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE
SOUTHERN DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE
BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THOSE COURTS. THE BORROWER, THE ADMINISTRATIVE AGENT
AND EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR
BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF
ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT
RELATED THERETO. THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER WAIVES PERSONAL SERVICE OF
ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY THE LAW
OF SUCH STATE.



     11.17 Waiver of Right to Trial by Jury. EACH PARTY HERETO HEREBY IRREVOCABLY 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 OR 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 PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON 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 AND THE OTHER LOAN DOCUMENTS
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.



     11.18 No Advisory or Fiduciary Responsibility. In connection with all aspects of each
transaction contemplated hereby (including in connection with any amendment, waiver or other
modification hereof or of any other Loan Document), the Borrower acknowledges and agrees, and
acknowledges its Affiliates’ understanding, that: (A) the arranging and other services regarding
this Agreement provided by the Administrative Agent and the Arrangers are arm’s-length commercial
transactions between the Borrower and its Affiliates, on the one hand, and the Administrative Agent
and the Arrangers, on the other hand, (B) the Borrower has consulted its own legal, accounting,
regulatory and tax advisors to the extent it has deemed appropriate, and (C) the Borrower is
capable of evaluating, and understands and accepts, the terms, risks and conditions of the
transactions contemplated hereby and by the other Loan Documents; (ii) (A) each of the
Administrative Agent and the Arrangers is and has been acting solely as a principal and, except as
expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting
as an advisor, agent or fiduciary for the Borrower or any of its Affiliates, or any other Person
and (B) none of the Administrative Agent nor the Arrangers has any obligation to the Borrower or
any of its Affiliates with respect to the transactions contemplated hereby except



62









 




those obligations expressly set forth herein and in the other Loan Documents; and (iii) the Administrative Agent and
the Arrangers and their respective Affiliates may be engaged in a broad range of transactions that
involve interests that differ from those of the Borrower and its
Affiliates, and none of the Administrative Agent nor the Arrangers has any obligation to
disclose any of such interests to the Borrower or any of its Affiliates. To the fullest extent
permitted by law, the Borrower hereby waives and releases any claims that it may have against any
of the Administrative Agent or the Arrangers with respect to any breach or alleged breach of agency
or fiduciary duty in connection with any aspect of any transaction contemplated hereby.




     11.19 USA Patriot Act Notice. Each Lender that is subject to the Act (as hereinafter
defined) and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies
the Borrower that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the “Act”), it is required to obtain, verify and
record information that identifies the Borrower, which information includes the name and address of
the Borrower and other information that will allow such Lender or the Administrative Agent, as
applicable, to identify the Borrower in accordance with the Act.




63












 





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



	 	 	 	 	 
	 	McKESSON CORPORATION

 	 
	 	By:  	/s/ Nicholas A. Loiacono
 	 
	 	 	Name:  	Nicholas A. Loiacono  	 
	 	 	Title:  	VP and Treasurer 	 



S-1









 






	 	 	 	 	 



	 	 	 	 	 
	 	BANK OF AMERICA, N.A., as

Administrative Agent

 	 
	 	By:  	/s/ Zubin R. Shroff
 	 
	 	 	Name:  	Zubin R. Schroff  	 
	 	 	Title:  	Vice President 	 



S-2









 






	 	 	 	 	 



	 	 	 	 	 
	 	BANK OF AMERICA, N.A., as

a Lender

 	 
	 	By:  	/s/ Zubin R. Shroff
 	 
	 	 	Name:  	Zubin R. Shroff  	 
	 	 	Title:  	Vice President 	 



S-3









 






	 	 	 	 	 



	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A., as

a Lender

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



S-4









 






	 	 	 	 	 



	 	 	 	 	 
	 	THE BANK OF NOVA SCOTIA, as

a Lender

 	 
	 	By:  	/s/ Mark Sparrow
 	 
	 	 	Name:  	Mark Sparrow  	 
	 	 	Title:  	Director 	 



S-5









 






	 	 	 	 	 



	 	 	 	 	 
	 	THE BANK OF TOKYO MITSUBISHI UFJ, 

LTD., as a Lender

 	 
	 	By:  	/s/ Victor Pierzchalski
 	 
	 	 	Name:  	Victor Pierzchalski  	 
	 	 	Title:  	Authorized Signatory 	 



S-6









 






	 	 	 	 	 
	 	RABOBANK NEDERLAND, NEW YORK
BRANCH, 
as a Lender

 	 
	 	By:  	/s/ Andrew Sherman
 	 
	 	 	Name:  	Andrew Sherman  	 
	 	 	Title:  	Executive Director 	 
	 
	 	By:  	                                              /s/ Nader Pasdar
 	 
	 	 	Name:  	Nadar Pasdar  	 
	 	 	Title:  	Managing Director 	 



S-7









 






	 	 	 	 	 



	 	 	 	 	 
	 	WELLS FARGO BANK, NATIONAL 

ASSOCIATION, as a Lender

 	 
	 	By:  	/s/ Kirk Tesch
 	 
	 	 	Name:  	Kirk Tesch  	 
	 	 	Title:  	Director 	 



S-8









 






	 	 	 	 	 



	 	 	 	 	 
	 	FIFTH THIRD BANK, as

a Lender

 	 
	 	By:  	/s/ Sanjeev Narayan
 	 
	 	 	Name:  	Sanjeev Narayan  	 
	 	 	Title:  	Vice President 	 



S-9









 





	 	 	 	 	 
	 	PNC BANK, NATIONAL ASSOCIATION, as

a Lender

 	 
	 	By:  	/s/ John F. Broeren
 	 
	 	 	Name:  	John F. Broeren  	 
	 	 	Title:  	Managing Director 	 




S-10









 





SCHEDULE 2.01




COMMITMENTS




	 	 	 	 	 
	Lender	 	Commitment	 
	Bank of America, N.A.
	 	$	600,000,000.0	 
	JPMorgan Chase Bank, N.A.
	 	$	600,000,000.0	 
	The Bank of Nova Scotia
	 	$	160,000,000.0	 
	The Bank of Tokyo Mitsubishi UFJ, Ltd.
	 	$	160,000,000.0	 
	Rabobank Nederland, New York Branch
	 	$	160,000,000.0	 
	Wells Fargo Bank, National Association
	 	$	160,000,000.0	 
	Fifth Third Bank
	 	$	80,000,000.0	 
	PNC Bank, National Association
	 	$	80,000,000.0	 
	Totals:
	 	$	2,000,000,000	 







Schedule 2.01 –  1











 





SCHEDULE 5.11




SUBSIDIARIES AND INDEBTEDNESS SECURED BY LIENS



Part (a).



DOMESTIC/FOREIGN SUBSIDIARIES




	 	 	 

	3071406 Nova Scotia Company

	 	McKesson International Netherlands BV
	A.L.I. Holdings LLC

	 	McKesson International Netherlands II B.V.
	A.L.I. Technologies (Deutschland) Gmbh

	 	McKesson International S.a.r.l.
	A.L.I. Technologies (Europe) B.V.

	 	McKesson International SRL
	Beldere Corporation

	 	McKesson International Sweden I AB
	California Golden State Finance Company

	 	McKesson International Sweden II AB
	CGSF Funding Corporation

	 	McKesson International Sweden III AB
	Clinique Santé Corporation / Corporation Clinique Santé

	 	McKesson International Topholdings S.a.r.l.
	CPG Industries, Inc.

	 	McKesson Ireland Limited
	Crocker Plaza Company

	 	McKesson Israel Ltd.
	Cypress Medical Products LLC

	 	McKesson Medical Imaging Company
	D & K Healthcare Resources LLC

	 	McKesson Medical-Surgical FDT Inc.
	Diversified Healthcare, LLC

	 	McKesson Medical-Surgical Holdings Inc.
	FASTPRO International, Inc.

	 	McKesson Medical-Surgical Inc.
	Foremost de Venezuela, S.A. (Forvensa)

	 	McKesson Medical-Surgical International Limited
	Foremost Iran Corporation

	 	McKesson Medical-Surgical MediMart Inc.
	Foremost Shir, Inc.

	 	McKesson Medical-Surgical Minnesota Inc.
	Foremost Tehran, Inc.

	 	McKesson Medical-Surgical Minnesota Supply Inc.
	Golden State Corporate Services LLC

	 	McKesson Pharmaceutical Holdings LLC
	Golden State Insurance Company Limited

	 	McKesson Pharmacy Optimization LLC
	HBOC Medical Limited

	 	McKesson Pharmacy Systems Canada ULC
	Health Mart Systems, Inc.

	 	McKesson Pharmacy Systems LLC
	HF Land Company

	 	McKesson Plasma and Biologics LLC
	Jaron, Inc.

	 	McKesson Property Company, Inc.
	Jewett Drug LLC

	 	McKesson Specialty Arizona Inc.
	KWS & P/SFA, Inc.

	 	McKesson Specialty Care Distribution Corporation
	McKesson (Shanghai) Trading Company Limited

	 	McKesson Specialty Care Distribution Joint Venture LP
	McKesson Automation Canada Company / Corporation d’Automatisation McKesson Canada

	 	McKesson Specialty Distribution LLC
	McKesson Automation Inc.

	 	McKesson Specialty Holdings LLC
	McKesson Automation Systems Inc.

	 	McKesson Specialty Prescription Services (Atlantic) Corporation






Schedule 5.11 – 1









 






	 	 	 

	McKesson Canada Corporation / La Corporation McKesson Canada

	 	McKesson Specialty Prescription Services (B.C.) Corporation
	McKesson Canada Support Services Corporation / Corporation Services de Support
McKesson Canada

	 	McKesson Specialty Prescription Services Corporation
	McKesson Capital Funding Corporation

	 	McKesson Technologies Inc.
	McKesson Capital LLC

	 	McKesson Transportation Systems, Inc.
	McKesson Central Fill LLC

	 	McQueary Bros. Drug Company, LLC
	McKesson China Holdings S.a.r.l.

	 	Medcon UK Limited
	McKesson Financial Holdings II Limited

	 	Medical & Vaccine Products, Inc.
	McKesson Financial Holdings Limited

	 	Moore Medical LLC
	McKesson Funding Company of Canada

	 	MSA Products LLC
	McKesson Health Solutions Holdings LLC

	 	myhca, inc.
	McKesson Health Solutions LLC

	 	National Oncology Alliance, Inc.
	McKesson Health Solutions Puerto Rico Inc.

	 	NDCHealth Corporation
	McKesson Health Solutions Texas Inc.

	 	NDCHealth Pharmacy Systems and Services, Inc.
	McKesson High Volume Solutions Inc.

	 	Northstar Healthcare Holdings Limited
	McKesson Information Solutions Canada Company

	 	Northstar Healthcare Limited
	McKesson Information Solutions Capital S.a.r.l.

	 	Northstar Rx LLC
	McKesson Information Solutions Finance S.a.r.l.

	 	Oncology Holdings II, Inc.
	McKesson Information Solutions France S.A.S.

	 	Oncology Holdings, Inc.
	McKesson Information Solutions Holdings France S.a.r.l.

	 	Oncology Therapeutics Network Corporation
	McKesson Information Solutions Holdings S.a.r.l.

	 	Onmark, Inc.
	McKesson Information Solutions Netherlands B.V.

	 	OTN Generics, Inc.
	McKesson Information Solutions Sweden AB

	 	OTN Participant, Inc.
	McKesson Information Solutions Topholdings S.a r.l.

	 	Per-Se Technologies Canada, Inc.
	McKesson Information Solutions UK Limited

	 	Pharmessor Group Corporation / Corporation Groupe Pharmessor
	McKesson International Capital S.a.r.l.

	 	PST Services, Inc.
	McKesson International Finance S.a.r.l.

	 	Purchasing Alliance for Clinical Therapeutics, LLC
	McKesson International Holdings II S.a.r.l.

	 	Sterling Medical Services, LLC
	McKesson International Holdings III S.a.r.l.

	 	Strategic Health Alliance II, Inc.






Schedule 5.11 – 2









 






	 	 	 

	McKesson International Holdings IV S.a.r.l.

	 	Strategic Health Alliance Management Corp.
	McKesson International Holdings Limited

	 	VC Services, Inc.
	McKesson International Holdings LLC

	 	Walsh Distribution, L.L.C.
	McKesson International Holdings S.a.r.l.

	 	Walsh Healthcare Solutions LLC
	McKesson International Holdings SRL

	 	Zee Medical Canada Corporation
	McKesson International Holdings V S.a.r.l.

	 	Zee Medical, Inc.
	McKesson International Holdings VII S.a.r.l.
	 	 





Part (b). Indebtedness in Excess of $25,000,000 Secured by Liens.




     As of November 23, 2010, the Company and its Subsidiaries had no outstanding Indebtedness for
borrowed money in excess of $25,000,000 secured by Liens.



Schedule 5.11 – 3









 





SCHEDULE 11.02




ADMINISTRATIVE AGENT’S OFFICE,

CERTAIN ADDRESSES FOR NOTICES




BORROWER:




McKesson Corporation

One Post Street

San Francisco, CA 94104-5296

U.S.A.

Attention: Nicholas A. Loiacono, Vice President and Treasurer

Telephone: (415) ________

Facsimile: (415) 983-8826




ADMINISTRATIVE AGENT:




Administrative Agent’s Contact for Payments and Requests for Loans:

Bank of America, N.A.

101 North Tryon Street

Mail Code: NC1-001-04-39

Charlotte, NC 28255-0001

Attention: Angela Berry

Telephone: (980) ________

Facsimile: (704) 409-0014




Payment Instructions:

Bank of America, N.A.

New York, NY

Attn: Corporate Credit Services

ABA #: _________

Account #: _________

Ref: McKesson Corporation




Other Notices as Administrative Agent:

Bank of America, N.A.

Agency Management

1455 Market Street

Mail Code: CA5-701-05-19

San Francisco, CA 94103

Attention: Kevin Ahart

Telephone: (415) ________

Facsimile: (415) 503-5000




Schedule 11.02 – 1









 





EXHIBIT A




FORM OF LOAN NOTICE




Date: ___________, _____




To:    Bank of America, N.A., as Administrative Agent




Ladies and Gentlemen:



     Reference is made to that certain Senior Bridge Term Loan Agreement, dated as of November 23,
2010 (as amended, restated, extended, supplemented or otherwise modified in writing from time to
time, the “Agreement;” the terms defined therein being used herein as therein defined),
among McKesson Corporation, a Delaware corporation, the Lenders from time to time party thereto and
Bank of America, N.A., as Administrative Agent.



	 	 	 	 	 

	 	 	The undersigned hereby requests (select one):
	 
	 	 	 	 
	 

	 	o A borrowing of Loans
	 	o A conversion of Loans
	 
	 	 	 	 
	 

	 	o A continuation of Loans	 	 






	 	 	 	 	 

	 

	1.	 	 	On
o  the Closing Date (a Business Day)
	 
	 	 	 	 
	 

	 	 	 	      o
   
                    
                
 1 (a Business Day).2
	 
	 	 	 	 
	 

	2.	 	 	In the amount of $           
                
                 
                    
        
        .3
	 
	 	 	 	 
	 

	3.	 	 	Comprised of [Eurodollar Rate Loans] [Base Rate Loans]. [Type of Loan requested]
	 
	 	 	 	 
	 

	4.	 	 	For Eurodollar Rate Loans: with an
Interest Period of _____ months.






	 	 	 	 	 
	 	McKESSON CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 





 




			
	1	 	A date after the Closing Date on or about which a payment in respect of the Company Bonds is required to be made.
	 
	2	 	Limited to two (2) borrowings of Loans.
	 
	3	 	Must be in Dollars.






A-1











 





EXHIBIT B




FORM OF NOTE




____________________




     FOR VALUE RECEIVED, the undersigned (the “Borrower”), hereby promises to pay to
_____________________ or registered assigns (the “Lender”), in accordance with the
provisions of the Agreement (as hereinafter defined), the principal amount of each Loan from time
to time made by the Lender to the Borrower under that certain Senior Bridge Term Loan Agreement,
dated as of November 23, 2010 (as amended, restated, extended, supplemented or otherwise modified
in writing from time to time, the “Agreement;” the terms defined therein being used herein
as therein defined), among the Borrower, the Lenders from time to time party thereto and Bank of
America, N.A., as Administrative Agent.



     The Borrower promises to pay interest on the unpaid principal amount of each Loan from the
date of such Loan until such principal amount is paid in full, at such interest rates and at such
times as provided in the Agreement. All payments of principal and interest shall be made to the
Administrative Agent for the account of the Lender in Dollars in immediately available funds at the
Administrative Agent’s Office. If any amount is not paid in full when due hereunder, such unpaid
amount shall bear interest, to be paid upon demand, from the due date thereof until the date of
actual payment (and before as well as after judgment) computed at the per annum rate set forth in
the Agreement.



     This Note is one of the Notes referred to in the Agreement, is entitled to the benefits
thereof and may be prepaid in whole or in part subject to the terms and conditions provided
therein. Upon the occurrence and continuation of one or more of the Events of Default specified in
the Agreement, all amounts then remaining unpaid on this Note shall become, or may be declared to
be, immediately due and payable all as provided in the Agreement. Loans made by the Lender shall
be evidenced by one or more loan accounts or records maintained by the Lender in the ordinary
course of business. The Lender may also attach schedules to this Note and endorse thereon the date,
amount and maturity of its Loans and payments with respect thereto.



     The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment,
protest and demand and notice of protest, demand, dishonor and non-payment of this Note.



     THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.



	 	 	 	 	 
	 	McKESSON CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 




B-1









 





EXHIBIT C




FORM OF COMPLIANCE CERTIFICATE




Financial Statement Date:                     ,



To: Bank of America, N.A., as Administrative Agent



Ladies and Gentlemen:




     Reference is made to that certain Senior Bridge Term Loan Agreement dated as of November 23,
2010 (as amended, restated, extended, supplemented or otherwise modified in writing from time to
time, the “Agreement;” the terms defined therein being used herein as therein defined),
among McKesson Corporation, a Delaware corporation (the “Borrower”), the Lenders from time
to time party thereto and Bank of America, N.A., as Administrative Agent.



     The undersigned Responsible Officer hereby certifies as of the date hereof that he/she is the                                                     
                                                
of the Borrower, and that, as such, he/she is authorized to execute and deliver this Certificate to
the Administrative Agent on the behalf of the Borrower, and that:



[Use following paragraph 1 for fiscal year-end financial statements]




     1. Attached hereto as Schedule 1 are the year-end audited financial statements
required by Section 6.01(a) of the Agreement for the fiscal year of the Borrower ended as
of the above date, together with the report and opinion of an independent certified public
accountant required by such section.



[Use following paragraph 1 for fiscal quarter-end financial statements]




     1. Attached hereto as Schedule 1 are the unaudited financial statements required by
Section 6.01(b) of the Agreement for the fiscal quarter of the Borrower ended as of the
above date. Such financial statements fairly present the financial condition, results of
operations and cash flows of the Borrower and its Subsidiaries in accordance with GAAP as at such
date and for such period, subject only to normal year-end audit adjustments and the absence of
footnotes.



     2. The undersigned has reviewed and is familiar with the terms of the Agreement and has made,
or has caused to be made under his/her supervision, a detailed review of the transactions and
condition (financial or otherwise) of the Borrower during the accounting period covered by the
attached financial statements.



     3. A review of the activities of the Borrower during such fiscal period has been made under
the supervision of the undersigned with a view to determining whether during such fiscal period the
Borrower performed and observed all its Obligations under the Loan Documents, and



[select one:]






C-1









 








     [to the best knowledge of the undersigned during such fiscal period, the Borrower performed
and observed each covenant and condition of the Loan Documents applicable to it.]



—or—




     [the following covenants or conditions have not been performed or observed and the following
is a list of each such Default and its nature and status:]



     4. The representations and warranties of the Borrower contained in Article V of the
Agreement, or which are contained in any document furnished at any time under or in connection with
the Loan Documents, are true and correct on and as of the date hereof, except to the extent that
such representations and warranties specifically refer to an earlier date, in which case they are
true and correct as of such earlier date, and except for purposes of this Compliance Certificate,
the representations and warranties contained in Section 5.08(a) of the Agreement shall be
deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b)
respectively, of Section 6.01 of the Agreement, including the statements in connection with
which the Compliance Certificate is delivered.



     5. The financial covenant analyses and information set forth on Schedule 2 attached
hereto are true and accurate on and as of the date of this Certificate.



     IN WITNESS WHEREOF, the undersigned has executed this Certificate as
of                                         ,                    .



	 	 	 	 	 
	 	McKESSON CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



C-2









 






	 	 	 	 	 



For the Quarter/Year ended __________________ (“Statement Date”)




SCHEDULE 2

to the Compliance Certificate

($ in 000’s)




Section 7.04:




Maximum Total Debt to

Capitalization Ratio



	 	 	 	 	 	 	 	 	 	 	 	 	 

	1.	 	Total Capitalization	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	(a)
	 	Total Debt
	 	 	$	 	 	 

	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	(b)
	 	Capital stock and additional paid-in-capital
	 	 	$	 	 	 

	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	(c)
	 	Retained earnings (accumulated deficits)
	 	 	$	 	 	 

	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	(d)
	 	Sum of (a), (b) and (c):
	 	 	$	 	 	 

	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	2.	 	Ratio of Total Debt (Item 1(a)) to	 	 	 	 	 	 	 	 
	 	 	Total Capitalization (Item 1(d)): _____:_____	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	3.	 	Maximum Ratio Permitted under Section 7.04:	 	 	0.565:1.00	 	 






C-3









 





EXHIBIT D




FORM OF ASSIGNMENT AND ASSUMPTION




     This Assignment and Assumption (this “Assignment and Assumption”) is dated as of the
Effective Date set forth below and is entered into by and between [Insert name of Assignor] (the
“Assignor”) and [Insert name of Assignee] (the “Assignee”). Capitalized terms used
but not defined herein shall have the meanings given to them in the Senior Bridge Term Loan
Agreement identified below (the “Agreement”), receipt of a copy of which is hereby
acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached
hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment
and Assumption as if set forth herein in full.



     For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to
and in accordance with the Standard Terms and Conditions and the Agreement, as of the Effective
Date inserted by the Administrative Agent as contemplated below (i) all of the Assignor’s rights
and obligations as a Lender under the Agreement and any other documents or instruments delivered
pursuant thereto to the extent related to the amount and percentage interest identified below of
all of such outstanding rights and obligations of the Assignor under the respective facilities
identified below and (ii) to the extent permitted to be assigned under applicable law, all claims,
suits, causes of action and any other right of the Assignor (in its capacity as a Lender) against
any Person, whether known or unknown, arising under or in connection with the Agreement, any other
documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in
any way based on or related to any of the foregoing, including, but not limited to, contract
claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity
related to the rights and obligations sold and assigned by the Assignor to the Assignee pursuant to
clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii)
above being referred to herein collectively as, the “Assigned Interest”). Such
sale and assignment is without recourse to the Assignor and, except as expressly provided in this
Assignment and Assumption, without representation or warranty by the Assignor.



	 	 	 	 	 	 	 

	1.

	 	Assignor:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	2.

	 	Assignee:
	 	 	 	[and is an Affiliate/Approved Fund
	 

	 	 	 	 	 	 
	 	 	of [identify Lender]]	 	 






	 	 	 	 	 

	3.

	 	Borrower:
	 	McKesson Corporation






	 	 	 	 	 

	4.

	 	Administrative Agent:
	 	Bank of America, N.A., as the administrative
agent under the Agreement






	 	 	 	 	 

	5.

	 	Agreement:
	 	The Senior Bridge Term Loan Agreement,
dated as of November 23, 2010, among
McKesson Corporation, the Lenders from time
to time party thereto and Bank of America,
N.A., as Administrative Agent and the other
agents parties thereto







D-1











 





6. Assigned Interest:




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Aggregate	 	 	 	 	 	 	 
	 	 	Amount of	 	 	Amount of	 	 	Percentage	 
	 	 	Commitment/Loans	 	 	Commitment/Loans	 	 	Assigned of	 
	Facility Assigned	 	for all Lenders*	 	 	Assigned*	 	 	Commitment/Loans1	 
	Loans
	 	$	 	 	 	$	 	 	 	 	 	%
	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	$	 	 	 	$	 	 	 	 	 	%
	 
	 	 	 	 	 	 	 	 	 	 	 





[7. Trade Date: __________________]2




Effective Date: __________________, 20__ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE
THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]




     The terms set forth in this Assignment and Assumption are hereby agreed to:



	 	 	 	 	 
	 	ASSIGNOR

[NAME OF ASSIGNOR]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 
	 	ASSIGNEE

[NAME OF ASSIGNEE]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 



[Consented to and] Accepted:




Bank of America, N.A., as

  Administrative Agent



	 	 	 	 	 
	By:  	 	 
	 	Title: 	 
	 	 	 





 




			
	1	 	Set forth, to at least 9 decimals, as a
percentage of the Commitment/Loans of all Lenders thereunder.
	 
	2	 	To be completed if the Assignor and the
Assignee intend that the minimum assignment amount is to be determined as of
the Trade Date.




D-2









 










[Consented to:




McKesson Corporation




	 	 	 	 	 
	By:  	

 	 
	 	Title:                                                            	] 
	 	 	 	 
	 




D-3









 





ANNEX 1 TO ASSIGNMENT AND ASSUMPTION




SENIOR BRIDGE TERM LOAN AGREEMENT

DATED AS OF NOVEMBER 23, 2010

AMONG

MCKESSON CORPORATION,

THE LENDERS PARTY THERETO AND BANK OF AMERICA, N.A., AS

ADMINISTRATIVE AGENT



STANDARD TERMS AND CONDITIONS FOR



ASSIGNMENT AND ASSUMPTION



     1. Representations and Warranties.



     1.1. Assignor. The Assignor (a) represents and warrants that (i) it is the legal and
beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any
lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken
all action necessary, to execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with the Agreement or any other
Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Loan Documents or any collateral thereunder, (iii) the financial condition of the
Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any
Loan Document or (iv) the performance or observance by the Borrower, any of its Subsidiaries or
Affiliates or any other Person of any of their respective obligations under any Loan Document.



     1.2. Assignee. The Assignee (a) represents and warrants that (i) it has full power
and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Agreement, (ii) it meets all requirements of an Eligible Assignee under the Agreement (subject to
receipt of such consents as may be required under the Agreement), (iii) from and after the
Effective Date, it shall be bound by the provisions of the Agreement as a Lender thereunder and, to
the extent of the Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it has
received a copy of the Agreement, together with copies of the most recent financial statements
delivered pursuant to Section 6.01 thereof, as applicable, and such other documents and
information as it has deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and Assumption and to purchase the Assigned Interest on the basis of which it has
made such analysis and decision independently and without reliance on the Administrative Agent or
any other Lender, and (v) if it is a Foreign Lender, attached hereto is any documentation required
to be delivered by it pursuant to the terms of the Agreement, duly completed and executed by the
Assignee; and (b) agrees that (i) it will, independently and without reliance on the Administrative
Agent, the Assignor or any other Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in taking or not taking
action under the Loan Documents, and (ii) it will



1









 





perform in accordance with their terms all of the obligations which by the terms of the Loan
Documents are required to be performed by it as a Lender.




     2. Payments. From and after the Effective Date, the Administrative Agent shall make
all payments in respect of the Assigned Interest (including payments of principal, interest, fees
and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective
Date and to the Assignee for amounts which have accrued from and after the Effective Date.



     3. General Provisions. This Assignment and Assumption shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and assigns. This
Assignment and Assumption may be executed in any number of counterparts, which together shall
constitute one instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a manually executed
counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed
by, and construed in accordance with, the law of the State of New York.




2