Exhibit 10.4





Exhibit 10.4




EXECUTION VERSION




 










CREDIT AGREEMENT




dated as of November 14, 2006,




among




AMERISOURCEBERGEN CORPORATION




The Borrowing Subsidiaries Party Hereto




The Lenders Party Hereto




and




JPMORGAN CHASE BANK, N.A.,

as Administrative Agent




J. P. MORGAN EUROPE LIMITED,

as London Agent




and




THE BANK OF NOVA SCOTIA,

as Canadian Agent




 






J.P. MORGAN SECURITIES INC.

and

BANC OF AMERICA SECURITIES LLC,

as Co-Lead Arrangers and Joint Bookrunners




 






BANK OF AMERICA, N.A.,

as Syndication Agent




and




THE BANK OF NOVA SCOTIA,

WACHOVIA BANK, NATIONAL ASSOCIATION

and

LEHMAN BROTHERS COMMERCIAL BANK,

as Documentation Agents




 




 


 









 





TABLE OF CONTENTS




	 	 	 	 	 
	ARTICLE I

	 
	 	 	 	 
	Definitions

	 
	 	 	 	 
	SECTION 1.01. Defined Terms
	 	 	2	 
	SECTION 1.02. Classification of Loans and Borrowings
	 	 	29	 
	SECTION 1.03. Terms Generally
	 	 	29	 
	SECTION 1.04. Accounting Terms; GAAP; Pro Forma Computations
	 	 	30	 
	SECTION 1.05. Currency Translation
	 	 	30	 
	 
	 	 	 	 
	ARTICLE II

	 
	 	 	 	 
	The Credits

	 
	 	 	 	 
	SECTION 2.01. Commitments
	 	 	31	 
	SECTION 2.02. Loans and Borrowings
	 	 	32	 
	SECTION 2.03. Requests for Borrowings
	 	 	33	 
	SECTION 2.04. Swingline Loans
	 	 	34	 
	SECTION 2.05. Letters of Credit
	 	 	35	 
	SECTION 2.06. Canadian Bankers’ Acceptances
	 	 	40	 
	SECTION 2.07. Funding of Borrowings and B/A Drawings
	 	 	43	 
	SECTION 2.08. Interest Elections
	 	 	44	 
	SECTION 2.09. Termination, Reduction and Increase of Commitments
	 	 	46	 
	SECTION 2.10. Repayment of Loans and B/As; Evidence of Debt
	 	 	48	 
	SECTION 2.11. Prepayment of Loans
	 	 	49	 
	SECTION 2.12. Fees
	 	 	49	 
	SECTION 2.13. Interest
	 	 	51	 
	SECTION 2.14. Alternate Rate of Interest
	 	 	52	 
	SECTION 2.15. Increased Costs
	 	 	52	 
	SECTION 2.16. Break Funding Payments
	 	 	53	 
	SECTION 2.17. Taxes
	 	 	54	 
	SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs
	 	 	56	 
	SECTION 2.19. Mitigation Obligations; Replacement of Lenders
	 	 	57	 
	SECTION 2.20. Foreign Subsidiary Costs
	 	 	58	 
	SECTION 2.21. Designation of Borrowing Subsidiaries
	 	 	58	 
	 
	 	 	 	 
	ARTICLE III

	 
	 	 	 	 
	Representations and Warranties

	 
	 	 	 	 
	SECTION 3.01. Organization; Powers
	 	 	59	 
	SECTION 3.02. Authorization; Enforceability
	 	 	59	 
	SECTION 3.03. Governmental Approvals; No Conflicts
	 	 	60	 
	SECTION 3.04. Financial Condition; No Material Adverse Change
	 	 	60	 
	SECTION 3.05. Properties
	 	 	60	 
	SECTION 3.06. Litigation and Environmental Matters
	 	 	60	 






 


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	SECTION 3.07. Compliance with Laws and Agreements
	 	 	61	 
	SECTION 3.08. Investment Company Status
	 	 	61	 
	SECTION 3.09. Taxes
	 	 	61	 
	SECTION 3.10. ERISA
	 	 	61	 
	SECTION 3.11. Disclosure
	 	 	61	 
	SECTION 3.12. Subsidiaries
	 	 	62	 
	SECTION 3.13. Insurance
	 	 	62	 
	SECTION 3.14. Labor Matters
	 	 	62	 
	SECTION 3.15. Senior Indebtedness
	 	 	62	 
	 
	 	 	 	 
	ARTICLE IV

	 
	 	 	 	 
	Conditions

	 
	 	 	 	 
	SECTION 4.01. Effective Date
	 	 	62	 
	SECTION 4.02. Each Credit Event
	 	 	63	 
	SECTION 4.03. Initial Credit Event for each Additional Borrowing Subsidiary
	 	 	64	 
	 
	 	 	 	 
	ARTICLE V

	 
	 	 	 	 
	Affirmative Covenants

	 
	 	 	 	 
	SECTION 5.01. Financial Statements and Other Information
	 	 	65	 
	SECTION 5.02. Notices of Material Events
	 	 	66	 
	SECTION 5.03. Existence; Conduct of Business
	 	 	66	 
	SECTION 5.04. Payment of Obligations
	 	 	66	 
	SECTION 5.05. Maintenance of Properties; Insurance
	 	 	67	 
	SECTION 5.06. Books and Records; Inspection and Audit Rights
	 	 	67	 
	SECTION 5.07. Compliance with Laws
	 	 	67	 
	SECTION 5.08. Use of Proceeds and Letters of Credit
	 	 	67	 
	SECTION 5.09. Additional Subsidiaries
	 	 	67	 
	SECTION 5.10. Senior Debt Status
	 	 	67	 
	 
	 	 	 	 
	ARTICLE VI

	 
	 	 	 	 
	Negative Covenants

	 
	 	 	 	 
	SECTION 6.01. Indebtedness
	 	 	68	 
	SECTION 6.02. Liens
	 	 	68	 
	SECTION 6.03. Fundamental Changes
	 	 	69	 
	SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions
	 	 	70	 
	SECTION 6.05. Asset Sales
	 	 	70	 
	SECTION 6.06. Hedging Agreements
	 	 	71	 
	SECTION 6.07. Restricted Payments; Certain Payments of Indebtedness
	 	 	71	 
	SECTION 6.08. Transactions with Affiliates
	 	 	71	 
	SECTION 6.09. Restrictive Agreements
	 	 	72	 
	SECTION 6.10. Material Documents
	 	 	72	 
	SECTION 6.11. Fixed Charge Coverage Ratio
	 	 	72	 
	SECTION 6.12. Leverage Ratio
	 	 	72	 






 


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	SECTION 6.13. Fiscal Quarters
	 	 	73	 
	 
	 	 	 	 
	ARTICLE VII

	 
	 	 	 	 
	Events of Default

	 
	 	 	 	 
	ARTICLE VIII

	 
	 	 	 	 
	The Agents

	 
	 	 	 	 
	ARTICLE IX

	 
	 	 	 	 
	Collection Allocation Mechanism

 
	ARTICLE X

	 
	 	 	 	 
	Guarantee

	 
	 	 	 	 
	ARTICLE XI

	 
	 	 	 	 
	Miscellaneous

	 
	 	 	 	 
	SECTION 11.01. Notices
	 	 	79	 
	SECTION 11.02. Waivers; Amendments
	 	 	80	 
	SECTION 11.03. Expenses; Indemnity; Damage Waiver
	 	 	81	 
	SECTION 11.04. Successors and Assigns
	 	 	82	 
	SECTION 11.05. Survival
	 	 	85	 
	SECTION 11.06. Counterparts; Integration; Effectiveness
	 	 	86	 
	SECTION 11.07. Severability
	 	 	86	 
	SECTION 11.08. Right of Setoff
	 	 	86	 
	SECTION 11.09. Governing Law; Jurisdiction; Consent to Service of Process
	 	 	86	 
	SECTION 11.10. WAIVER OF JURY TRIAL
	 	 	87	 
	SECTION 11.11. Headings
	 	 	87	 
	SECTION 11.12. Confidentiality
	 	 	87	 
	SECTION 11.13. Interest Rate Limitation
	 	 	88	 
	SECTION 11.14. Releases of Guarantors
	 	 	88	 
	SECTION 11.15. U.S.A. PATRIOT Act
	 	 	89	 
	SECTION 11.16. Termination of Guarantee Agreement
	 	 	89	 
	SECTION 11.17. Non-Public Information
	 	 	89	 
	SECTION 11.18. No Fiduciary Duty
	 	 	89	 
	SECTION 11.19. Conversion of Currencies
	 	 	90	 
	SECTION 11.20. Waiver of Notice Period in connection with Termination of
the Existing US Credit Agreement
	 	 	90	 





 


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Schedules



	 	 	 	 	 
	Schedule 1.01 Applicable Funding Account
	 	 	 	 
	Schedule 2.01 Commitments
	 	 	 	 
	Schedule 2.05 Existing Letters of Credit
	 	 	 	 
	Schedule 3.12 Subsidiaries
	 	 	 	 
	Schedule 3.13 Insurance
	 	 	 	 
	Schedule 6.02 Existing Liens
	 	 	 	 
	Schedule 6.09 Existing Restrictions
	 	 	 	 






Exhibits



	 	 	 	 	 
	Exhibit A Form of Assignment and Assumption
	 	 	 	 
	Exhibit B-1 Form of Borrower Joinder Agreement
	 	 	 	 
	Exhibit B-2 Form of Borrower Termination Agreement
	 	 	 	 
	Exhibit C Form of Borrowing Request
	 	 	 	 
	Exhibit D Form of Guarantee Agreement
	 	 	 	 
	Exhibit E Mandatory Costs Rate
	 	 	 	 
	Exhibit F-1 Form of Opinion of Dechert LLP, Counsel for the Company
	 	 	 	 
	Exhibit F-2 Form of Opinion of John G. Chou, Deputy General Counsel of the Company
	 	 	 	 
	Exhibit F-3 Form of Opinion of McMillan Binch Mendelsohn LLP
	 	 	 	 
	Exhibit F-4 Form of Opinion of Dechert LLP, Counsel for the UK Borrowing Subsidiary
	 	 	 	 







 


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CREDIT AGREEMENT dated as of November 14, 2006 (this “Agreement”), among
AMERISOURCEBERGEN CORPORATION (the “Company”); the Borrowing Subsidiaries from time to
time party hereto; the LENDERS from time to time party hereto; JPMORGAN CHASE BANK,
N.A., as Administrative Agent; J.P. MORGAN EUROPE LIMITED, as London Agent; and THE BANK
OF NOVA SCOTIA, as Canadian Agent.



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



(a) Global Tranche Commitments under which (i) the Global Tranche Borrowers may obtain
Revolving Loans in US Dollars, Sterling, Euro, Designated Currencies and, in the case of Global
Tranche Borrowers that are Canadian Subsidiaries, Canadian Dollars, (ii) the Company and other
Global Tranche Borrowers that are US Subsidiaries or Canadian Subsidiaries may obtain Swingline
Loans in US Dollars, (iii) Global Tranche Borrowers that are Canadian Subsidiaries may obtain
Swingline Loans in Canadian Dollars, (iv) the Global Tranche Borrowers may obtain Letters of Credit
in US Dollars, Sterling, Euro, Designated Currencies and, in the case of Global Tranche Borrowers
that are Canadian Subsidiaries, Canadian Dollars and (v) Global Tranche Borrowers that are Canadian
Subsidiaries may issue and sell Global Tranche B/As.



(b) US/UK Tranche Commitments under which the US/UK Tranche Borrowers may obtain Revolving
Loans in US Dollars, Sterling, Euro and Designated Currencies.



(c) US/Canadian Tranche Commitments under which (i) the US/Canadian Tranche Borrowers may
obtain Revolving Loans in US Dollars and Designated Currencies, (ii) US/Canadian Tranche Borrowers
that are Canadian Subsidiaries may obtain Revolving Loans denominated in Canadian Dollars,
(iii) US/Canadian Tranche Borrowers that are Canadian Subsidiaries may issue and sell US/Canadian
Tranche B/As, (iv) the Company and other US/Canadian Tranche Borrowers that are US Subsidiaries or
Canadian Subsidiaries may obtain Swingline Loans in US Dollars and (v) US/Canadian Tranche
Borrowers that are Canadian Subsidiaries may obtain Swingline Loans in Canadian Dollars.



(d) US Tranche Commitments under which the US Tranche Borrowers may obtain Revolving Loans in
US Dollars.



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


 


 









 





Accordingly, the parties hereto agree as follows:



ARTICLE I




Definitions 




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



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



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



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



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



“Administrative Agent” means JPMorgan Chase Bank, N.A., in its capacity as administrative
agent for the Lenders hereunder, or any successor appointed in accordance with Article VIII.



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



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



“Agents” means the Administrative Agent, the London Agent and the Canadian Agent.



“Alternate Base Rate” means, for any day, a rate per annum equal to the greater of (a) the
Prime Rate in effect on such day and (b) the Federal Funds Effective Rate in effect on such day
plus  1/2 of 1%. Any change in the Alternate Base Rate due to a change in the Prime Rate
or the Federal Funds Effective Rate shall be effective from and including the effective date of
such change in the Prime Rate or the Federal Funds Effective Rate, as the case may be.



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



“Applicable Agent” means (a) with respect to a Loan or Borrowing denominated in US Dollars
(other than any such Loan or Borrowing of a Canadian Borrowing Subsidiary) or any Letter of Credit,
and with respect to any payment hereunder that does not relate to a particular Loan,





 


2









 







Borrowing, B/A or Letter of Credit, the Administrative Agent, (b) with respect to a Loan or
Borrowing of a Canadian Borrowing Subsidiary denominated in US Dollars, a Loan or Borrowing
denominated in Canadian Dollars or a B/A, the Canadian Agent and (c) with respect to a Loan or
Borrowing denominated in a currency other than US Dollars or Canadian Dollars, the London Agent.



“Applicable Funding Account” means, as to each Borrower, the applicable account with the
Applicable Agent (or one of its Affiliates) specified on Schedule 1.01 hereto or set forth
in such Borrower’s Borrower Joinder Agreement entered pursuant to Section 2.21, or any other
account with the Applicable Agent (or one of its Affiliates) that shall be specified in a written
notice signed by a Financial Officer and delivered to and approved by such Applicable Agent.



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



	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	LIBOR/EURIBOR	 
	 	 	 	 	 	 	 	 	Spread and B/A	 
	 	 	Ratings	 	Facility Fee Rate	 	 	Stamping Fee	 
	Category	 	(S&P/Moody’s/Fitch)	 	(basis points per annum)	 	 	(basis points per annum)	 
	Category 1
	 	A/A2/A or higher	 	 	6.0	 	 	 	19.0	 
	Category 2
	 	A-/A3/A-	 	 	7.0	 	 	 	23.0	 
	Category 3
	 	BBB+/Baa1/BBB+	 	 	8.0	 	 	 	32.0	 
	Category 4
	 	BBB/Baa2/BBB	 	 	10.0	 	 	 	40.0	 
	Category 5
	 	BBB-/Baa3/BBB-	 	 	12.5	 	 	 	50.0	 
	Category 6
	 	BB+/Ba1/BB+ or lower	 	 	15.0	 	 	 	60.0	 






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




 


3









 







“Applicable Swingline Lender” means (a) with respect to any Swingline Loan denominated in US
Dollars (other than any such Swingline Loan to a Canadian Borrowing Subsidiary), JPMorgan Chase
Bank, N.A. and (b) with respect to any Swingline Loan to a Canadian Borrowing Subsidiary, The Bank
of Nova Scotia.



“Approved Fund” has the meaning assigned to such term in Section 11.04.



“Arrangers” means J.P. Morgan Securities Inc. and Banc of America Securities LLC.



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



“Authorized Non-Canadian Bank” has the meaning assigned to the term “Authorized Foreign Bank”
in subsection 248(1) of the ITA and, by reference therein, the meaning assigned to the term
“Authorized Foreign Bank” in section 2 of the Bank Act (Canada), as amended, and any successor
thereto.



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



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



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



“B/A Equivalent Loan” has the meaning assigned to such term in Section 2.06(k).



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



“Borrower” means any Global Tranche Borrower, US/UK Tranche Borrower, US/Canadian Tranche
Borrower or US Tranche Borrower.



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



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



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



“Borrowing Minimum” means (a) in the case of a Borrowing denominated in US Dollars,
US$5,000,000, (b) in the case of a Borrowing denominated in Sterling, £3,000,000, (c) in





 


4









 







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



“Borrowing Multiple” means (a) in the case of a Borrowing denominated in US Dollars,
US$100,000, (b) in the case of a Borrowing denominated in Sterling, £50,000, (c) in the case of a
Borrowing denominated in Euros, €50,000, (d) in the case of a Borrowing denominated in Canadian
Dollars, Cdn.$100,000 and (e) in the case of a Borrowing denominated in any Alternative Currency,
100,000 units of such currency.



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



“Borrowing Subsidiary” means (a) Brecon Holdings Limited, a company organized under the laws
of England and Wales, (b) AmerisourceBergen Canada Corporation, a corporation organized under the
laws of Canada and (c) any other Subsidiary that has become a Borrowing Subsidiary as provided in
Section 2.21 and has not ceased to be a Borrowing Subsidiary as provided in such Section.



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



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



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



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



“CAM Percentage” means, as to each Lender, a fraction, expressed as a decimal, of which
(a) the numerator shall be the sum of the US Dollar Equivalents (determined on the basis of
Exchange Rates prevailing on the CAM Exchange Date) of the Designated Obligations owed to such
Lender (whether or not at the time due and payable) immediately prior to the CAM Exchange and
(b) the denominator shall be the sum of the US Dollar Equivalents (as so determined) of the
Designated Obligations owed to all the Lenders (whether or not at the time due and payable)
immediately prior to the CAM Exchange. For purposes of determining the CAM Percentages, the amount
payable in respect of any B/A shall be deemed to be the face amount





 


5









 







thereof, reduced by the unaccreted portion of the discount at which such B/A shall have been
purchased (taking into account the applicable Discount Rates and acceptance fees), as determined by
the Administrative Agent in accordance with accepted financial practice.



“Canadian Agent” means The Bank of Nova Scotia, in its capacity as Canadian agent for the
Lenders hereunder, or any successor appointed in accordance with Article VIII.



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



“Canadian Banking Business” has the meaning assigned to such term in subsection 248(1) of the
ITA.



“Canadian Banking Business Asset” means an amount receivable the interest on which is, or
would be, an amount paid or credited to an Authorized Non-Canadian Bank in respect of its Canadian
Banking Business.



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



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



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



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



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





 


6









 







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



“Change in Law” means (a) the adoption of any law, rule or regulation after the Closing Date,
(b) any change in any law, rule or regulation or in the interpretation or application thereof by
any Governmental Authority after the Closing Date or (c) compliance by any Lender or Issuing Bank
(or, for purposes of Section 2.15(b), by any lending office of such Lender or Issuing Bank or by
such Lender’s or Issuing Bank’s holding company, if any) with any request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or issued after the
Closing Date.



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



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



“Closing Date” means the date of this Agreement.



“Code” means the Internal Revenue Code of 1986, as amended from time to time.



“Commitments” means the Global Tranche Commitments, the US/UK Tranche Commitments, the
US/Canadian Tranche Commitments and the US Tranche Commitments, as the case may be. The aggregate
amount of the Commitments as of the Closing Date is US$750,000,000.



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



“Consolidated Cash Interest Expense” means, for any period, the sum, without duplication, of
(i) the cash interest expense of the Company and the Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP, excluding premiums, transaction expenses, discounts and
other amounts
required to be amortized and (ii) all discount, interest, fees, premiums and other charges in
respect of all Securitizations for such period.



“Consolidated EBITDA” means, for any period, Consolidated Net Income for such period plus
(a) without duplication and to the extent deducted in determining such Consolidated Net Income, the
sum, without duplication, of (i) consolidated interest expense for such period, (ii) consolidated
income tax expense for such period, (iii) all amounts attributable to depreciation and amortization
for such period, (iv) any special one-time or extraordinary charges





 


7









 







or extraordinary losses for such period, in each case to the extent not involving cash payments by
the Company or any Subsidiary in such period or any future period, and (vi) any LIFO adjustment (if
negative) or charge for such period and minus (b) without duplication and to the extent
included in determining such Consolidated Net Income, any extraordinary non-cash gains for such
period and any LIFO adjustment (if positive) or credit, all determined on a consolidated basis in
accordance with GAAP. In the event that the Company or any Subsidiary shall have completed an
acquisition or disposition of any material Person, division or business unit since the beginning of
the relevant period, Consolidated EBITDA shall be determined for such period on a pro
forma basis as if such acquisition or disposition, and any related incurrence or repayment
of Indebtedness, had occurred at the beginning of such period.



“Consolidated EBITDAR” means, for any period, Consolidated EBITDA for such period plus rental
payments by the Company and the Subsidiaries for such period (other than under capital leases),
determined on a consolidated basis in accordance with GAAP.



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



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



“Contract Period” means, with respect to any B/A, the period commencing on the date such B/A
is issued, accepted and purchased and ending on the date that is seven, 14, 30, 60, 90 or 180 days
thereafter, as the applicable Canadian Borrowing Subsidiary may elect or, to the extent agreed to
by each Lender of the applicable Tranche, such other number of days (not in excess of 180) as shall
be requested by the applicable Canadian Borrowing Subsidiary; provided that if such Contract Period
would end on a day other than a Business Day, such Contract Period shall be extended to the next
succeeding Business Day.



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



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



“Designated Currency” means, in relation to any Tranche, any currency (a) that is freely
transferable and convertible into US Dollars in the London market, (b) for which LIBO Rates can be
determined by
reference to the Telerate screen as provided in the definition of “LIBO Rate” and (c) that has
been designated by the Administrative Agent as a Designated Currency





 


8









 







under such Tranche at the request of the Company and with the consent of each Lender with a
Commitment or a Revolving Credit Exposure under such Tranche. If the applicable Lenders and the
Administrative Agent shall so elect, the designation of a currency as a Designated Currency in
relation to any Tranche may be limited to one or more of the Borrowers entitled to borrow under
such Tranche.



“Designated Obligations” shall mean all obligations of the Borrowers with respect to
(a) principal of and interest on the Revolving Loans, (b) participations in Swingline Loans funded
by the Global Tranche Lenders or the US/Canadian Tranche Lenders, (c) amounts payable to the
Lenders in respect of B/As, (d) unreimbursed L/C Disbursements and interest thereon and (c) all
facility fees and Letter of Credit participation fees.



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



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



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



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



“Effective Date” means the date on which the conditions specified in Section 4.01 are
satisfied (or waived in accordance with Section 11.02).



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







 


9









 







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



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



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



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



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



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



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



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





 


10









 







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



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



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



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





 


11









 







organized in such jurisdiction, to the extent such tax is in effect and applicable (assuming the
taking by such Borrower and such Lender of all actions required in order for available exemptions
from such tax to be effective) at the time such Lender becomes a party to this Agreement (or
designates a new US/UK Tranche Lending Office for US/UK Tranche Borrowers organized in such
jurisdiction), except to the extent that such Lender (or its assignor, if any) was entitled, at the
time of designation of a new lending office (or assignment), to receive additional amounts with
respect to such withholding tax pursuant to Section 2.17, (d) with respect to any US/Canadian
Tranche Lender (other than a Lender that becomes a US/Canadian Tranche Lender through an assignment
under Section 2.19(b) or by operation of the CAM), any withholding tax that is imposed on amounts
payable by a US/Canadian Tranche Borrower organized in the United States of America or Canada by
any taxation authority of such Borrower’s jurisdiction of organization (including country) on
amounts payable from locations within such jurisdiction to such
Lender’s US/Canadian Tranche Lending Office designated for US/Canadian Tranche Borrowers organized
in such jurisdiction, to the extent such tax is in effect and applicable (assuming the taking by
such Borrower and such Lender of all actions required in order for available exemptions from such
tax to be effective) at the time such Lender becomes a party to this Agreement (or designates a new
US/Canadian Tranche Lending Office for US/Canadian Tranche Borrowers organized in such
jurisdiction), except to the extent that such Lender (or its assignor, if any) was entitled, at the
time of designation of a new lending office (or assignment), to receive additional amounts with
respect to such withholding tax pursuant to Section 2.17 and (e) with respect to any US Tranche
Lender (other than a Lender that becomes a US Tranche Lender through an assignment under
Section 2.19 or by operation of the CAM), any withholding tax that is imposed on amounts payable by
a US Tranche Borrower organized in the United States of America by such Borrower’s jurisdiction of
organization on amounts payable from locations within such jurisdiction to such Lender’s US Tranche
Lending Office designated for US Tranche Borrowers organized in such jurisdiction, to the extent
such tax is in effect and applicable (assuming the taking by such Borrower and such Lender of all
actions required in order for available exemptions from such tax to be effective) at the time such
Lender becomes a party to this Agreement (or designates a new US Tranche Lending Office for US
Tranche Borrowers organized in such jurisdiction), except to the extent that such Lender (or its
assignor, if any) was entitled, at the time of designation of a new lending office (or assignment),
to receive additional amounts with respect to such withholding tax pursuant to Section 2.17.



“Existing Canadian Credit Agreement” means the Credit Agreement dated as of October 3, 2005,
as amended, among the Company, AmerisourceBergen Canada Corporation, the lenders from time to time
party thereto and the Bank of Nova Scotia, as administrative agent.



“Existing US Credit Agreement” means the Credit Agreement dated as of December 2, 2004, as
amended, among the Company, the lenders from time to time party thereto and JPMorgan Chase Bank,
N.A., as administrative agent.



“Existing UK Credit Agreement” means the Facility Agreement dated as of March 1, 2006, as
amended, among the Company, Brecon Holdings Limited and Barclays Bank PLC.



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



“Federal Funds Effective Rate” means, for any day, the weighted average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds





 


12









 







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



“Financed Amount” means, at any time, with respect to any Securitization, (a) if such
Securitization involves any transfer of interests in accounts receivable or inventory (i) to a
trust, partnership, corporation or other entity (other than a Subsidiary) or (ii) in the case of a
Securitization of accounts receivable, directly to one or more investors or other purchasers (other
than any Subsidiary), the aggregate amount of the interests in accounts receivable so transferred,
net of collections applied to such interests and net of any such interests that have been written
off as uncollectible, or the aggregate book value of the interests in inventory transferred
pursuant to such Securitization and not sold or otherwise disposed of by the purchaser or
purchasers, or (b) if such Securitization involves a transaction in which a Subsidiary incurs
Indebtedness secured by Liens on accounts receivable, the aggregate outstanding principal amount of
the Indebtedness secured by Liens on accounts receivable incurred pursuant to such Securitization.



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



“Fitch” means Fitch, Inc.



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



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



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



“Global Tranche B/As” means a B/As accepted and purchased pursuant to the Global Tranche
Commitments.



“Global Tranche Borrower” means (a) the Company, (b) any US Borrowing Subsidiary, (c) any UK
Borrowing Subsidiary, (d) any Canadian Borrowing Subsidiary and (e) any Borrowing Subsidiary that
is not a US Borrowing Subsidiary, a UK Borrowing Subsidiary or a Canadian Borrowing Subsidiary and
that has been designated by the Administrative Agent as a Global Tranche Borrower at the request of
the Company and with the consent of each Global Tranche Lender.



“Global Tranche Commitment” means, with respect to each Global Tranche Lender, the commitment
of such Global Tranche Lender to make Global Tranche Revolving Loans pursuant to Section 2.01(a),
to accept and purchase Global Tranche B/As pursuant to Section 2.06 and to acquire participations
in Global Tranche Swingline Loans and Letters of Credit hereunder, expressed as an amount
representing the maximum aggregate amount of such Global Tranche Lender’s Global Tranche Revolving
Credit Exposure hereunder, as such commitment may be reduced or increased from time to time
pursuant to Section 2.09 or assignments by or to such





 


13









 







Global Tranche Lender pursuant to Section 11.04. The initial amount of each Global Tranche Lender’s
Global Tranche Commitment is set forth on Schedule 2.01, or in the Assignment and Assumption
pursuant to which such Global Tranche Lender shall have assumed its Global Tranche Commitment, as
the case may be. The aggregate amount of Global Tranche Commitments on the Closing Date is
US$260,000,000.



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



“Global Tranche Lending Office” means, with respect to any Global Tranche Lender, the
office(s) of such Lender (or any Affiliate of such Lender) specified as its “Global Tranche Lending
Office(s)” on Schedule 2.01 or, as to any Person that becomes a Global Tranche Lender after the
Closing Date, in the Assignment and Assumption executed by such Person, or such other office(s) of
such Lender (or an Affiliate of such Lender) as such Lender may hereafter designate from time to
time as its “Global Tranche Lending Office(s)” by notice to the Company and the Administrative
Agent. A Global Tranche Lender may designate different Global Tranche Lending Offices for Loans to
Global Tranche Borrowers in different jurisdictions.



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



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



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



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



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



“Governmental Authority” means the government of the United States of America, any other
nation or any political subdivision thereof, whether state or local, and any





 


14









 







agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.



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



“Guarantee Agreement” means the Guarantee Agreement among the Designated Subsidiaries and the
Administrative Agent, substantially in the form of Exhibit D.



“Guarantee Agreement Termination Date” means any date on which the Guarantee Agreement shall
be terminated as provided in Section 11.16.



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



“Guarantor” means each Subsidiary required to enter into the Guarantee Agreement as a
guarantor.



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



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



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





 


15









 







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



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



“Indemnified Taxes” means Taxes other than Excluded Taxes.



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



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



“Information Memorandum” means the Confidential Information Memorandum dated October 2006
relating to the Company and the Transactions.



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



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



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



“Interest Period” means, with respect to any LIBOR Borrowing or EURIBOR Borrowing, the period
commencing on the date of such Borrowing and ending on the numerically corresponding day in the
calendar month that is one, two, three or six months (or, with consent of





 


16









 







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



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



“Issuing Bank Agreement” shall have the meaning assigned to such term in Section 2.05(j).



“ITA” means the Income Tax Act (Canada), as amended, and any successor thereto, and any
regulations promulgated thereunder.



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



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



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



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



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



“Leverage Ratio” means, on any date, the ratio of (a) Total Indebtedness as of such date to
(b) Consolidated EBITDA for the period of four consecutive fiscal quarters of the





 


17









 







Company ended on such date (or, if such date is not the last day of a fiscal quarter, ended on the
last day of the fiscal quarter of the Company most recently ended prior to such date); provided
that for purposes of determining the Leverage Ratio at any time, the outstanding amount of the
Revolving Loans and B/As and all other revolving Indebtedness, and the Financed Amount of all
Securitizations, included in Total Indebtedness shall be deemed to equal the average of (i) the
outstanding amounts of the Revolving Loans and B/As and other revolving Indebtedness, and (ii) the
Financed Amount of all Securitizations, in each case on the last day of each of the four most
recently ended fiscal quarters, net of Permitted Investments not to exceed $50,000,000 on the last
day of each such quarter.



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



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



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



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



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



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



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



“London Agent” means J. P. Morgan Europe Limited, in its capacity as London agent for the
Lenders hereunder, or any successor appointed in accordance with Article VIII.



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







 


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“Material Adverse Effect” means a material adverse effect on (a) the business, results of
operations or financial condition of the Company and the Subsidiaries taken as a whole, (b) the
ability of any Loan Party (other than any Subsidiaries that are not Significant Subsidiaries) to
perform any of its obligations under any Loan Document or (c) the rights of or benefits available
to the Lenders under any Loan Document.



“Material Indebtedness” means Indebtedness (other than the Loans, B/As and Letters of Credit),
or obligations in respect of one or more Hedging Agreements, of any one or more of the Company and
the Subsidiaries in an aggregate principal amount exceeding US$25,000,000. For purposes of
determining Material Indebtedness, the “principal amount” of the obligations of the Company or any
Subsidiary in respect of any Hedging Agreement at any time shall be the maximum aggregate amount
(giving effect to any netting agreements) that the Company or such Subsidiary would be required to
pay if such Hedging Agreement were terminated at such time.



“Maturity Date” means November 14, 2011.



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



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



“New Bonds” means the Company’s (a) 5 5/8% Senior Notes due 2012 in an aggregate
principal amount of $400,000,000 and (b) 5 7/8% Senior Notes due 2015 in an aggregate
principal amount of $500,000,000.



“Non-Canadian Issuing Bank” means any Issuing Bank that is a “non-resident” of Canada for
purposes of Part I of the ITA.



“Non-Canadian Lender” means any Lender that is a “non-resident” of Canada for purposes of Part
I of the ITA.



“Non-Schedule I Lender” means any Lender named on Schedule II or Schedule III to the Bank Act
(Canada).



“Non-Schedule I Reference Lender” means JPMorgan Chase Bank, N.A., Toronto Branch and The Bank
of Nova Scotia.



“Obligations” means (a) the principal of and premium, if any, and interest (including interest
accruing during the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding) on the Loans, (b) all
reimbursement obligations of any Borrower in respect of B/As accepted hereunder, when and as due,
whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise,
(c) each payment required to be made by any Borrower under this Agreement in respect of any Letter
of Credit, when and as due, including payments in respect of reimbursement of reasonable
disbursements, interest thereon and obligations to provide cash collateral, (c) all other monetary
obligations, including fees, costs, expenses and indemnities, whether primary, secondary, direct,
contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding), of the Loan Parties under this Agreement and the other Loan
Documents and (d) the due and punctual payment and performance of all obligations of the Company
and the Subsidiaries under any Hedging Agreement and cash





 


19









 







management arrangement or agreement (i) existing on the date hereof and with a Person that is a
Lender on the date hereof (or an Affiliate of such a Lender) or (ii) with a Person that shall have
been a Lender at the time such Hedging Agreement or cash management arrangement or agreement was
entered into (or an Affiliate of such a Lender).



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



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



“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any
successor entity performing similar functions.



“Permitted Encumbrances” means:



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



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



(c) pledges and deposits made in the ordinary course of business in compliance with workers’
compensation, unemployment insurance and other social security laws or regulations;



(d) deposits to secure the performance of bids, trade contracts, leases, statutory
obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in
each case in the ordinary course of business;



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



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



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



“Permitted Investments” means:



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



(b) Indebtedness maturing within 24 months issued by and constituting direct obligations of
any of the following agencies or any other like governmental or government-sponsored





 


20









 







agency, as follows: Federal Farm Credit Bank; Federal Intermediate Credit Bank; Federal Financings
Bank; Federal Home Loan Bank System; Federal Home Loan Mortgage Corporation; Federal National
Mortgage Association; Tennessee Valley Authority; Student Loan Marketing Association; Export-Import
Bank of the United States; Farmers Home Administration; Small Business Administration;
Inter-American Development Bank; International Bank for Reconstruction and Development; Federal
Land Banks; and Government National Mortgage Association;



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



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



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



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



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



(h) money market funds.



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



“Pharmerica Spin-Off” means the transactions provided for in the Master Transaction Agreement
dated October 25, 2006, by and among the Company, PharMerica, Inc., a Delaware corporation and
wholly-owned subsidiary of the Company (“PharMerica”), Kindred Healthcare, Inc., a Delaware
corporation, Kindred Healthcare Operating, Inc., a Delaware corporation, Kindred Pharmacy Services,
Inc., a Delaware corporation, Safari Holding Corporation, a Delaware corporation (“Newco”), Hippo
Merger Corporation, a Delaware corporation and wholly owned subsidiary of Newco (“Hippo Merger
Sub”), and Rhino Merger Corporation, a Delaware corporation and wholly owned subsidiary of Newco,
including (a) the transfer by Pharmacy Corporation of America, a California corporation and
indirect wholly owned subsidiary of the Company, of the capital stock of each of PMSI, Inc., a
Florida corporation and





 


21









 







Tmesys, Inc., a Florida corporation, to the Company or another Subsidiary of the Company, (b) the
borrowing by PharMerica of approximately $150,000,000 from certain financial institutions (the
“PharMerica Borrowing”), (c) the distribution of the proceeds of the PharMerica Borrowing by way of
dividend, inter-company payment or return of capital to the Company, (d) the distribution of all
the capital stock of PharMerica to the stockholders of the Company by way of dividend, (e) the
merger of PharMerica with Hippo Merger Sub and (f) the provision of certain transitional services
between Newco and the Company and certain of the Company’s Subsidiaries.



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



“Prime Rate” means (a) in the case of a Borrowing in US Dollars by the Company or a US
Borrowing Subsidiary, the rate of interest per annum publicly announced from time to time by
JPMorgan Chase Bank, N.A. as its prime rate in effect at its principal office in New York City, and
(b) in the case of any Borrowing in US Dollars by a Canadian Borrowing Subsidiary, the rate of
interest per annum publicly
announced from time to time by The Bank of Nova Scotia as its prime rate in effect at its
principal office in Toronto for loans made in Canada and denominated in US Dollars. Each change in
the Prime Rate shall be effective from and including the date such change is publicly announced as
being effective.



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



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



“Ratings Agency” means S&P, Moody’s or Fitch.



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



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



“Related Fund” means, with respect to any Lender that is a fund or trust that makes, buys or
invests in commercial loans, any other fund or trust that makes, buys or invests in commercial
loans and is managed by the same investment advisor as such Lender.



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





 


22









 







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



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



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



“Revolving Credit Exposure” means a Global Tranche Revolving Credit Exposure, a US/UK Tranche
Revolving Credit Exposure, a US/Canadian Tranche Revolving Credit Exposure or a US Tranche
Revolving Credit Exposure.



“Revolving Loan” means any Global Tranche Revolving Loan, US/UK Tranche Revolving Loan,
US/Canadian Tranche Revolving Loan or US Tranche Revolving Loan, as applicable.



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



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



“Schedule I Reference Lenders” means The Bank of Nova Scotia and any other Schedule I Lender
agreed upon by the Company and the Canadian Agent from time to time.



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



“Securitization” means any transfer or pledge of accounts receivable, inventory and/or
Proceeds thereof or interests therein (a) to a special purpose trust, partnership or corporation or
other special purpose entity (which may but need not be a Subsidiary), which transfer or pledge is
funded by such entity in whole or in part by (i) the issuance to one or more lenders or investors
of indebtedness or other securities that are to receive payments principally from the cash flow
derived from such accounts receivable, inventory and/or Proceeds thereof or interests therein or
(ii) the transfer or pledge of such accounts, inventory and/or Proceeds thereof (or interests
therein) to





 


23









 







one or more investors or other purchasers, or (b) in the case of accounts receivable, directly to
one or more investors or other purchasers.



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



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



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



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



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



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



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



“Subsidiary” means any subsidiary of the Company.



“Swingline Exposure” means, at any time, the sum of the Global Tranche Swingline Exposure and
the US/Canadian Tranche Swingline Exposure at such time.



“Swingline Lender” means each of JPMorgan Chase Bank, N.A. and The Bank of Nova Scotia in its
capacity as a lender of Swingline Loans pursuant to Section 2.04.





 


24









 







“Swingline Loan” means a Global Tranche Swingline Loan or a Canadian Tranche Swingline Loan.



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



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



“2003 Securitization” means the receivables Securitization as contemplated by the Receivables
Purchase Agreement dated as of July 10, 2003, among Amerisource Receivables Financial Corporation,
as seller, AmerisourceBergen Drug Corporation, as initial servicer, various purchaser groups from
time to time and Wachovia Bank National Association, as administrator.



“Taxes” means any and all present or future taxes, levies, imposts, duties, deductions,
charges or withholdings imposed by any Governmental Authority.



“Total Indebtedness” means, as of any date, the sum, without duplication of (a) the aggregate
principal amount of Indebtedness of the Company and the Subsidiaries outstanding as of such date,
in the amount that would be reflected on a balance sheet prepared as of such date on a consolidated
basis in accordance with GAAP, (b) the aggregate amount of the Financed Amounts of all
Securitizations of the Company and the Subsidiaries, and (c) the aggregate principal amount of
Indebtedness of the Company and the Subsidiaries outstanding as of such date that is not required
to be reflected on a balance sheet in accordance with GAAP, determined on a consolidated basis.



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



“Tranche Percentage” means a Global Tranche Percentage, a US/UK Tranche Percentage, a
US/Canadian Tranche Percentage or a US Tranche Percentage, as the case may be.



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



“Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined by





 


25









 







reference to the Adjusted LIBO Rate, the Adjusted EURIBO Rate, the Alternate Base Rate or the
Canadian Prime Rate.



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



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



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



“US/Canadian Tranche” has the meaning set forth in the definition of “Tranche”.



“US/Canadian Tranche B/As” means a B/As accepted and purchased pursuant to the US/Canadian
Tranche Commitments.



“US/Canadian Tranche Borrower” means (a) the Company, (b) any US Borrowing Subsidiary and
(c) any Canadian Borrowing Subsidiary.



“US/Canadian Tranche Commitment” means, with respect to each US/Canadian Tranche Lender, the
commitment of such US/Canadian Tranche Lender to make US/Canadian Tranche Revolving Loans pursuant
to Section 2.01(c) and to accept and purchase US/Canadian Tranche B/As pursuant to Section 2.06,
expressed as an amount representing the maximum aggregate amount of such US/Canadian Tranche
Lender’s US/Canadian Tranche Revolving Credit Exposure hereunder, as such commitment may be reduced
or increased from time to time pursuant to Section 2.09 or assignments by or to such US/Canadian
Tranche Lender pursuant to Section 11.04. The initial amount of each US/Canadian Tranche Lender’s
US/Canadian Tranche Commitment is set forth on Schedule 2.01, or in the Assignment and
Assumption pursuant to which such US/Canadian Tranche Lender shall have assumed its US/Canadian
Tranche Commitment, as the case may be. The aggregate amount of US/Canadian Tranche Commitments on
the Closing Date is US$200,000,000.



“US/Canadian Tranche Lender” means a Lender with a US/Canadian Tranche Commitment or a
US/Canadian Tranche Revolving Credit Exposure.



“US/Canadian Tranche Lending Office” means, with respect to any US/Canadian Tranche Lender,
the office(s) of such Lender (or any Affiliate of such Lender) specified as its “US/Canadian
Tranche Lending Office(s)” on Schedule 2.01 or, as to any Person that becomes a US/Canadian Tranche
Lender after the Closing Date, in the Assignment and Assumption executed by such Person, or such
other office(s) of such Lender (or an Affiliate of such Lender) as such Lender may hereafter
designate from time to time as its “US/Canadian Tranche Lending Office(s)” by notice to the Company
and the Administrative Agent. A US/Canadian Tranche Lender may designate different US/Canadian
Tranche Lending Offices for Loans to US/Canadian Tranche Borrowers in different jurisdictions.



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







 


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



“US/Canadian Tranche Revolving Loans” means Loans made by the US/Canadian Tranche Lenders
pursuant to Section 2.01(c). Each US/Canadian Tranche Revolving Loan denominated in US Dollars
shall be a LIBOR Loan or an ABR Loan. Each US/Canadian Tranche Revolving Loan denominated in
Canadian Dollars shall be a Canadian Prime Rate Loan. Each US/Canadian Tranche Revolving Loan
denominated in a Designated Currency shall be a LIBOR Loan (or, in the case of a US/Canadian
Tranche Revolving Loan denominated in Euros, if the Euro shall be designated as an Designated
Currency for the US/Canadian Tranche, a EURIBOR Loan).



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



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



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



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



“US/UK Tranche” has the meaning set forth in the definition of “Tranche”.



“US/UK Tranche Borrower” means (a) the Company, (b) any US Borrowing Subsidiary, (c) any UK
Borrowing Subsidiary and (d) any Borrowing Subsidiary that is not a US Borrowing Subsidiary or a UK
Borrowing Subsidiary that has been designated by the Administrative Agent as a US/UK Tranche
Borrower at the request of the Company and with the consent of each US/UK Tranche Lender.



“US/UK Tranche Commitment” means, with respect to each US/UK Tranche Lender, the commitment of
such US/UK Tranche Lender to make US/UK Tranche Revolving Loans pursuant to Section 2.01(b),
expressed as an amount representing the maximum aggregate amount of such US/UK Tranche Lender’s
US/UK Tranche Revolving Credit Exposure hereunder, as such commitment may be reduced or increased
from time to time pursuant to Section 2.09 or assignments by or to such US/UK Tranche Lender
pursuant to Section 11.04. The initial amount of each US/UK Tranche Lender’s US/UK Tranche
Commitment is set forth on Schedule 2.01, or in the Assignment and Assumption pursuant to which
such US/UK Tranche Lender shall have





 


27









 







assumed its US/UK Tranche Commitment, as the case may be. The aggregate amount of US/UK Tranche
Commitments on the Closing Date is US$70,000,000.



“US/UK Tranche Lender” means a Lender with a US/UK Tranche Commitment or a US/UK Tranche
Revolving Credit Exposure.



“US/UK Tranche Lending Office” means, with respect to any US/UK Tranche Lender, the office(s)
of such Lender (or any Affiliate of such Lender) specified as its “US/UK Tranche Lending Office(s)”
on Schedule 2.01 or, as to any Person that becomes a US/UK Tranche Lender after the Closing Date,
in the Assignment and Assumption executed by such Person, or such other office(s) of such Lender
(or an Affiliate of such Lender) as such Lender may hereafter designate from time to time as its
“US/UK Tranche Lending Office(s)” by notice to the Company and the Administrative Agent. A US/UK
Tranche Lender may designate different US/UK Tranche Lending Offices for Loans to US/UK Tranche
Borrowers in different jurisdictions.



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



“US/UK Tranche Revolving Credit Exposure” means, with respect to any US/UK Tranche Lender at
any time, the sum of the US Dollar Equivalents of such US/UK Tranche Lender’s outstanding US/UK
Tranche Revolving Loans.



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



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



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



“US Tranche Borrower” means (a) the Company and (b) any US Borrowing Subsidiary.



“US Tranche Commitment” means, with respect to each US Tranche Lender, the commitment of such
US Tranche Lender to make US Tranche Revolving Loans pursuant to Section 2.01(d), expressed as an
amount representing the maximum aggregate amount of such US Tranche Lender’s US Tranche Revolving
Credit Exposure hereunder, as such commitment may be reduced or increased from time to time
pursuant to Section 2.09 or assignments by or to such US Tranche Lender pursuant to Section 11.04.
The initial amount of each US Tranche Lender’s US Tranche Commitment is set forth on Schedule
2.01, or in the Assignment and Assumption pursuant to which such US Tranche Lender shall have
assumed its US Tranche Commitment, as the case may be. The aggregate amount of US Tranche
Commitments on the Closing Date is US$220,000,000.





 


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



“US Tranche Lending Office” means, with respect to any US Tranche Lender, the office(s) of
such Lender (or any Affiliate of such Lender) specified as its “US Tranche Lending Office(s)” on
Schedule 2.01 or, as to any Person that becomes a US Tranche Lender after the Closing Date, in the
Assignment and Assumption executed by such Person, or such other office(s) of such Lender (or an
Affiliate of such Lender) as such Lender may hereafter designate from time to time as its “US
Tranche Lending Office(s)” by notice to the Company and the Administrative Agent.



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



“US Tranche Revolving Credit Exposure” means, with respect to any US Tranche Lender at any
time, the aggregate principal amount of such US Tranche Lender’s outstanding US Tranche Revolving
Loans.



“US Tranche Revolving Loans” means Loans made by the US Tranche Lenders pursuant to
Section 2.01(d). Each US Tranche Revolving Loan shall be a LIBOR Loan or an ABR Loan.



“wholly owned” means, as to any Subsidiary, that all the Equity Interests in such Subsidiary
(other than directors’ qualifying shares) are owned, directly or indirectly, by the Company.



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



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



SECTION 1.03. Terms Generally. The definitions of terms herein shall apply equally to
the singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The
word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the
context requires otherwise (a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or other document as
from time to time amended, supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any definition of or reference to
any statute, regulation or other law herein shall be construed (i) as referring to such statute,
regulation or other law as from time to time amended, supplemented or otherwise modified (including
by succession of comparable successor statutes, regulations or other





 


29









 







laws) and (ii) to include all official rulings and interpretations thereunder having the force of
law or with which affected Persons customarily comply, (c) any reference herein to any Person shall
be construed to include such Person’s successors and assigns, (d) the words “herein”, “hereof” and
“hereunder”, and words of similar import, shall be construed to refer to this Agreement in its
entirety and not to any particular provision hereof, (e) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and
Exhibits and Schedules to, this Agreement and (f) the words “asset” and “property” shall be
construed to have the same meaning and effect and to refer to any and all tangible and intangible
assets and properties, including cash, securities, accounts and contract rights.



SECTION 1.04. Accounting Terms; GAAP; Pro Forma Computations. (a) Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall be construed in
accordance with GAAP, as in effect from time to time; provided that, if the Company notifies the
Administrative Agent that the Company requests an amendment to any provision hereof to eliminate
the effect of any change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Administrative Agent notifies the Company that the
Required Lenders request an amendment to any provision hereof for such purpose), regardless of
whether any such notice is given before or after such change in GAAP or in the application thereof,
then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been withdrawn or such
provision amended in accordance herewith.



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



SECTION 1.05. Currency Translation. The Administrative Agent shall determine the US
Dollar Equivalent of any Borrowing denominated in a currency other than US Dollars, other than a
Canadian Prime Rate Borrowing, as of the date of the commencement of the initial Interest Period
therefor and as of the date of the commencement of each subsequent Interest Period therefor, in
each case using the Exchange Rate for such currency in relation to US Dollars in effect on the date
that is three Business Days prior to the date on which the applicable Interest Period shall
commence, and each such amount shall, except as provided in the last two sentences of this Section,
be the US Dollar Equivalent of such Borrowing until the next required calculation thereof pursuant
to this sentence. The Administrative Agent shall determine the US Dollar Equivalent of any Letter
of Credit denominated in a currency other than US Dollars as of the date such Letter of Credit is
issued, amended to increase its face amount, extended or renewed and as of the last Business Day of
each subsequent calendar quarter, in each case using the Exchange Rate for such currency in
relation to US Dollars in effect on the date that is three Business Days prior to the date on which
such Letter of Credit is issued, amended to increase its face amount, extended or renewed and as of
the last Business Day of such subsequent calendar quarter, as the case may be, and each such amount
shall, except as provided in the last two sentences of this Section, be the US Dollar Equivalent of
such Letter of Credit until the next required calculation thereof pursuant to this sentence. The
Administrative Agent shall determine the US Dollar Equivalent of any Canadian Prime Rate Borrowing
or B/A denominated in a currency other than US Dollars as of the date on which such Borrowing is
made or such B/A is accepted and





 


30









 







purchased and as of the last Business Day of each subsequent calendar quarter, in each case using
the Exchange Rate for such currency in relation to US Dollars in effect on the last Business Day of
the calendar quarter preceding the date of such Borrowing or acceptance and purchase (or, if such
Borrowing or acceptance and purchase occurs on the last Business Day of a calendar quarter, on such
Business Day) and as of the last Business Day of such subsequent calendar quarter, as the case may
be, and each such amount shall, except as provided in the last two sentences of this Section, be
the US Dollar Equivalent of such Borrowing or B/A until the next required calculation thereof
pursuant to this sentence. The Administrative Agent shall notify the Company and the Lenders of
each calculation of the US Dollar Equivalent of each Borrowing, B/A or Letter of Credit.
Notwithstanding the foregoing, for purposes of any determination of the CAM Percentages, any
determination under Article V, Article VI (other than Sections 6.11 and 6.12) or Article VII or any
determination under any other provision of this Agreement expressly requiring the use of a current
exchange rate, all amounts incurred, outstanding or proposed to be incurred or outstanding in
currencies other than US Dollars shall be translated into US Dollars at currency exchange rates in
effect on the date of such determination. For purposes of Section 6.11 and 6.12, amounts in
currencies other than US Dollars shall be translated into US Dollars at the currency exchange rates
used in preparing the Company’s annual and quarterly financial statements.



ARTICLE II




The Credits 




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



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



(c) US/Canadian Tranche Commitments. Subject to the terms and conditions set forth
herein, each US/Canadian Tranche Lender agrees (i) to make US/Canadian Tranche Revolving Loans
denominated in US Dollars or Designated Currencies to the US/Canadian Tranche Borrowers, (ii) to
make US/Canadian Tranche Revolving Loans denominated in Canadian Dollars to the US/Canadian Tranche
Borrowers that are Canadian Subsidiaries and (iii) to accept





 


31









 







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



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



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



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





 


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



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



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




(i) the Borrower requesting such Borrowing;




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




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




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




(v) the Type of such Borrowing;




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




(vii) the Applicable Funding Account; and





 


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



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



SECTION 2.04. Swingline Loans. (a) Subject to the terms and conditions set forth
herein, the Applicable Swingline Lender agrees to make Global Tranche Swingline Loans and
US/Canadian Tranche Swingline Loans to the Company, any US Borrowing Subsidiary or any Canadian
Borrowing Subsidiary denominated in US Dollars or, in the case of Swingline Loans to Canadian
Borrowing Subsidiaries, Canadian Dollars from time to time during the Availability Period, in an
aggregate principal amount at any time outstanding that will not result in (i) the sum of the US
Dollar Equivalents of the principal amounts of the outstanding Swingline Loans exceeding
US$150,000,000, (ii) the aggregate principal amount of the Swingline Loans denominated in Canadian
Dollars exceeding Cdn.$100,000,000, (iii) the aggregate Global Tranche Revolving Credit Exposures
exceeding the aggregate Global Tranche Commitments, (iv) the Global Tranche Revolving Credit
Exposure of any Lender exceeding its Global Tranche Commitment, (v) the aggregate US/Canadian
Tranche Revolving Credit Exposures exceeding the aggregate US/Canadian Tranche Commitments or
(vi) the US/Canadian Tranche Revolving Credit Exposure of any Lender exceeding its US/Canadian
Tranche Commitment; provided that no Swingline Lender shall be required to make a Swingline Loan to
refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and
conditions set forth herein, the Company, the US Borrowing Subsidiaries and the Canadian Borrowing
Subsidiaries may borrow, prepay and reborrow Swingline Loans.



(b) To request a Swingline Loan, the applicable Borrower shall notify the Applicable Agent
(with a copy to the Administrative Agent if the Applicable Agent shall be the Canadian Agent) and
the Applicable Swingline Lender of such request by telephone (confirmed by telecopy signed by a
Financial Officer on behalf of the applicable Borrower), not later than 2:00 p.m., Local Time, on
the day of such proposed Swingline Loan. Each such notice shall be irrevocable and shall specify
the requested date (which shall be a Business Day) and amount of the requested Swingline Loan and
whether such Swingline Loan is to be a Global Tranche Swingline Loan or a US/Canadian Tranche
Swingline Loan. The Applicable Swingline Lender shall make each Swingline Loan available to the
applicable Borrower by means of a credit to the Applicable Funding Account (or, in the case of a
Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in
Section 2.05(e), by remittance to the Issuing Bank) by 3:00 p.m., Local Time, on the requested date
of such Swingline Loan.



(c) Either Swingline Lender may by written notice given to the Administrative Agent not later
than 10:00 a.m., New York City time, on any Business Day (i) require the Global Tranche Lenders to
acquire participations on such Business Day in all or a portion of the Global Tranche Swingline
Loans of such Swingline Lender outstanding or (ii) require the US/Canadian Tranche Lenders to
acquire participations on such Business Day in all or a portion of the US/Canadian Tranche
Swingline Loans of such Swingline Lender outstanding. Such notice shall





 


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



SECTION 2.05. Letters of Credit. (a) General. Subject to the terms and
conditions set forth herein, any Global Tranche Borrower may request any Issuing Bank to issue
Letters of Credit (or to amend, renew or extend outstanding Letters of Credit) denominated in US
Dollars, Sterling, Euro, any Designated Currency available under the Global Tranche or, in the case
of a Global Tranche Borrower that is a Canadian Subsidiary, Canadian Dollars, for its own account,
in a form reasonably acceptable to the Administrative Agent and the applicable Issuing Bank, at any
time and from time to time during the Availability Period; provided that (i) unless JPMorgan Chase
Bank, N.A. and the Company shall otherwise agree, JPMorgan Chase Bank, N.A. will not issue Letters
of Credit denominated in Canadian Dollars, (ii) unless The Bank of Nova Scotia and the Company
shall otherwise agree, The Bank of Nova Scotia will not issue Letters of Credit denominated in
currencies other than Canadian Dollars and (iii) any other Issuing Bank will not be required to
issue Letters of Credit denominated in any currency not set forth in such Issuing Bank’s Issuing
Bank Agreement. In the event of any inconsistency between the terms and conditions of this
Agreement and the terms and conditions of any form of letter of credit application or other
agreement submitted by a Borrower to, or entered into by a Borrower with, an Issuing Bank relating
to any Letter of Credit, the terms and conditions of this Agreement shall





 


35









 







control. From and after the Effective Date, each Existing Letter of Credit shall be deemed to be a
Letter of Credit for all purposes hereof and shall be deemed to have been issued hereunder on the
Effective Date.



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



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



(d) Participations. By the issuance of a Letter of Credit (or an amendment to a Letter
of Credit increasing the amount thereof) and without any further action on the part of the
applicable Issuing Bank or the Lenders, the applicable Issuing Bank hereby grants to each Global
Tranche Lender, and each Global Tranche Lender hereby acquires from such Issuing Bank, a
participation in such Letter of Credit equal to such Lender’s Global Tranche Percentage from time
to time of the aggregate amount available to be drawn under such Letter of Credit. In consideration
and in furtherance of the foregoing, each Global Tranche Lender hereby absolutely





 


36









 







and unconditionally agrees to pay to the Administrative Agent, for the account of such Issuing
Bank, such Lender’s Global Tranche Percentage of each LC Disbursement made by such Issuing Bank and
not reimbursed by the applicable Borrower on the date due as provided in paragraph (e) of this
Section, or of any reimbursement payment required to be refunded to the applicable Borrower for any
reason. Each Global Tranche Lender acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of Letters of Credit is absolute and
unconditional and shall not be affected by any circumstance whatsoever, including any amendment,
renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or
reduction or termination of the Global Tranche Commitments,
and that each such payment shall be made without any offset, abatement, withholding or reduction
whatsoever.



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



(f) Obligations Absolute. Each Borrower’s obligation to reimburse LC Disbursements as
provided in paragraph (e) of this Section shall be absolute, unconditional and irrevocable, and
shall be performed strictly in accordance with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any
Letter of Credit or this Agreement or any term or provision therein, (ii) any draft or other
document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any
respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the
applicable Issuing Bank under a Letter of Credit against presentation of a draft or other document
that does not strictly comply with the terms of such Letter of Credit or (iv) any other event or
circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the
provisions of this Section, constitute a legal or equitable discharge of, or provide a right of
setoff





 


37









 







against, the applicable Borrower’s obligations hereunder. None of the Administrative Agent, the
Lenders, any Issuing Bank or any of their Related Parties shall have any liability or
responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit
or any payment or failure to make any payment thereunder (irrespective of any of the circumstances
referred to in the preceding sentence), or any error, omission, interruption, loss or delay in
transmission or delivery of any draft, notice or other communication under or relating to any
Letter of Credit (including any document required to make a drawing thereunder), any error in
interpretation of technical terms or any consequence arising from causes beyond the control of such
Issuing Bank; provided that nothing in this Section shall be construed to excuse an Issuing Bank
from liability to the applicable Borrower to the extent of any direct damages (as opposed to
consequential damages, claims in respect of which are hereby waived by each Borrower to the extent
permitted by applicable law) suffered by such Borrower that are caused by such Issuing Bank’s
failure to exercise care when determining whether drafts and other documents presented under a
Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the
absence of gross negligence or wilful misconduct on the part of an Issuing Bank (as finally
determined by a non-appealable judgment of
a court of competent jurisdiction), such Issuing Bank shall be deemed to have exercised care in
each such determination. In furtherance of the foregoing and without limiting the generality
thereof, the parties agree that, with respect to documents presented which appear on their face to
be in substantial compliance with the terms of a Letter of Credit, an Issuing Bank may, in its sole
discretion, either accept and make payment upon such documents without responsibility for further
investigation, regardless of any notice or information to the contrary, or refuse to accept and
make payment upon such documents if such documents are not in strict compliance with the terms of
such Letter of Credit.



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



(h) Interim Interest. If an Issuing Bank shall make any LC Disbursement, then, unless
the applicable Borrower shall reimburse such LC Disbursement in full on the date such LC
Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and
including the date such LC Disbursement is made to but excluding the date that such Borrower
reimburses such LC Disbursement at (i) in the case of any LC Disbursement denominated in US
Dollars, the rate per annum then applicable to ABR Revolving Loans denominated in US Dollars and
made to the Company, (ii) in the case of any LC Disbursement denominated in Canadian Dollars, the
rate per annum then applicable to Canadian Prime Rate Revolving Loans and (iii) in the case of an
LC Disbursement denominated in any other currency, a rate per annum determined by the applicable
Issuing Bank (which determination will be conclusive absent manifest error) to represent its cost
of funds plus the Applicable Rate used to determine interest applicable to LIBOR or EURIBOR
Revolving Loans; provided that, if such Borrower fails to reimburse such LC Disbursement when due
pursuant to paragraph (e) of this Section, then Section 2.13(e) shall apply. Interest accrued
pursuant to this paragraph shall be for the account of the applicable Issuing Bank, except that
interest accrued on and after the date of payment by any Global Tranche Lender pursuant to
paragraph (e) of this Section to reimburse such Issuing Bank shall be for the account of such
Global Tranche Lender to the extent of such payment.





 


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



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



(k) Replacement of an Issuing Bank. An Issuing Bank may be replaced at any time by
written agreement among the Company, the Administrative Agent, the replaced Issuing Bank and the
successor Issuing Bank. The Administrative Agent shall notify the Lenders of any such replacement
of an Issuing Bank. At the time any such replacement shall become effective, the Company shall pay
all unpaid fees accrued for the account of the replaced Issuing Bank





 


39









 







pursuant to Section 2.12(b). From and after the effective date of any such replacement, the
successor Issuing Bank shall have all the rights and obligations of an Issuing Bank under this
Agreement with respect to Letters of Credit to be issued thereafter and references herein to the
term “Issuing Bank” shall be deemed to refer to such successor or to any previous Issuing Bank, as
the context shall require. After the replacement of an Issuing Bank hereunder, the replaced Issuing
Bank shall remain a party hereto and shall continue to have all the rights and obligations of an
Issuing Bank under this Agreement with respect to Letters of Credit issued by it prior to such
replacement, but shall not be required to issue additional Letters of Credit.



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



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



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



(c) To request an acceptance and purchase of Global Tranche B/As or US/Canadian Tranche B/As,
a Canadian Borrowing Subsidiary shall notify the Canadian Agent of such request by telephone or by
telecopy not later than 12:00 noon., Local Time, two Business Days before the date of such
acceptance and purchase. Each such request shall be irrevocable and,





 


40









 







if telephonic, shall be confirmed promptly by hand delivery or telecopy to the Canadian Agent of a
written request in a form approved by the Canadian Agent and signed by such Canadian Borrowing
Subsidiary. Each such telephonic and written request shall specify the following information:




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




(ii) whether such B/As are to be Global Tranche B/As or US/Canadian Tranche B/As;




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




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




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



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



(d) Each Canadian Borrowing Subsidiary hereby appoints each Global Tranche Lender and
US/Canadian Tranche Lender as its attorney to sign and endorse on its behalf, manually or by
facsimile or mechanical signature, as and when deemed necessary by such Lender, blank forms of
B/As, each Global Tranche Lender and US/Canadian Tranche Lender hereby agreeing that it will not
sign or endorse B/As in excess of those required in connection with B/A Drawings that have been
requested by the Canadian Borrowing Subsidiaries hereunder. It shall be the responsibility of each
Global Tranche Lender and US/Canadian Tranche Lender to maintain an adequate supply of blank forms
of B/As for acceptance under this Agreement. Each Canadian Borrowing Subsidiary recognizes and
agrees that all B/As signed and/or endorsed on its behalf by any Global Tranche Lender or
US/Canadian Tranche Lender in accordance with
such Canadian Borrowing Subsidiary’s written request shall bind such Canadian Borrowing
Subsidiary as fully and effectually as if manually signed and duly issued by authorized officers of
such Canadian Borrowing Subsidiary. Each Global Tranche Lender and US/Canadian Tranche Lender is
hereby authorized to issue such B/As endorsed in blank in such face amounts as may be determined by
such Lender; provided that the aggregate face amount thereof is equal to the aggregate face amount
of B/As required to be accepted by such Lender in accordance with such Canadian Borrowing
Subsidiary’s written request. No Global Tranche Lender or US/Canadian Tranche Lender shall be
liable for any damage, loss or claim arising by reason of any loss or improper use of any such
instrument unless such loss or improper use results from the bad faith, gross negligence or willful
misconduct of such Lender. Each Global Tranche Lender and





 


41









 







US/Canadian Tranche Lender shall maintain a record with respect to B/As (i) received by it from the
Canadian Agent in blank hereunder, (ii) voided by it for any reason, (iii) accepted and purchased
by it hereunder and (iv) canceled at their respective maturities. Each Global Tranche Lender and
US/Canadian Tranche Lender further agrees to retain such records in the manner and for the periods
provided in applicable provincial or federal statutes and regulations of Canada and to provide such
records to each Canadian Borrowing Subsidiary upon its request and at its expense. Upon request by
any Canadian Borrowing Subsidiary, a Lender shall cancel all forms of B/A that have been pre-signed
or pre-endorsed on behalf of such Canadian Borrowing Subsidiary and that are held by such Lender
and are not required to be issued pursuant to this Agreement.



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



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



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



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



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



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





 


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and Notes Act (Canada). All depository bills so issued shall be governed by the provisions of this
Section.



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



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



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



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



(b) Unless the Applicable Agent shall have received notice from a Lender prior to the proposed
date of any Borrowing or acceptance and purchase of B/As that such Lender will not make available
to the Applicable Agent such Lender’s share of such Borrowing or the applicable Discount Proceeds
(net of applicable acceptance fees), the Applicable Agent may assume that such Lender has made such
share
available on such date in accordance with paragraph (a) of this Section and may, in reliance
upon such assumption, make available to the applicable Borrower a





 


43









 







corresponding amount. In such event, if a Lender has not in fact made its share of the applicable
Borrowing or the applicable Discount Proceeds (net of applicable acceptance fees) available to the
Applicable Agent, then the applicable Lender and such Borrower severally agree to pay to the
Applicable Agent forthwith on demand such corresponding amount with interest thereon, for each day
from and including the date such amount is made available to such Borrower to but excluding the
date of payment to the Applicable Agent, at (i) in the case of such Lender, the rate reasonably
determined by the Applicable Agent to be the cost to it of funding such amount or (ii) in the case
of such Borrower, the interest rate applicable to the subject Loan or the applicable Discount Rate
and pro-rated acceptance fee, as the case may be.



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



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



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





 


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




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




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




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



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



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



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



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



(g) Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is
continuing and the Administrative Agent, at the request of the Required Lenders, so notifies the
Borrower, then, so long as an Event of Default is continuing (i) no outstanding





 


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Borrowing denominated in US Dollars to the Company, a US Subsidiary or a Canadian Subsidiary may be
converted to or continued as a LIBOR Borrowing and (ii) unless repaid, each LIBOR Borrowing
denominated in US Dollars to the Company, a US Subsidiary or a Canadian Subsidiary shall be
converted to an ABR Borrowing at the end of the Interest Period applicable thereto.



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



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



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



(d) The Company may at any time and from time to time, by written notice to the Administrative
Agent (which shall promptly deliver a copy to each of the other Agents and the applicable Lenders)
executed by the Company and one or more financial institutions (any such financial institution
referred to in this Section being called an “Increasing Lender”), which may include any Lender,
cause Global Tranche Commitments, US/UK Tranche Commitments, US/Canadian Tranche Commitments or US
Tranche Commitments to be increased or extended by the Increasing Lenders (or cause the Commitments
of the Increasing Lenders to be increased, as the case may be) in an amount for each Increasing
Lender (which shall not be less than $5,000,000) set forth in such notice; provided, that (i) the
new Commitments and increases in existing Commitments pursuant to this paragraph shall not be
greater than US$250,000,000 in the aggregate during the term of this Agreement and shall not be
less than US$25,000,000 (or any portion of such US$250,000,000 aggregate amount remaining unused)
for any such increase, (ii) each Increasing Lender, if not already a Lender hereunder, shall be
subject to the approval of the Administrative Agent (which approval shall not be unreasonably
withheld) and (iii) each Increasing Lender, if not already a Lender hereunder, shall become a party
to this Agreement by completing and delivering to the Administrative Agent a duly executed
accession agreement in a form satisfactory to the Administrative Agent and the Borrower (an
“Accession Agreement”). New Commitments and increases in Commitments shall become effective on the
date specified in the applicable notices delivered pursuant to this paragraph. Upon the
effectiveness of any Accession





 


46









 







Agreement to which any Increasing Lender is a party, (i) such Increasing Lender shall thereafter be
deemed to be a party to this Agreement and shall be entitled to all rights, benefits and privileges
accorded a Lender hereunder and subject to all obligations of a Lender hereunder and
(ii) Schedule 2.01 shall be deemed to have been amended to reflect the Commitment or
Commitments of such Increasing Lender as provided in such Accession Agreement. Notwithstanding the
foregoing, no increase in the Commitments (or in the Commitment of any Lender) pursuant to this
paragraph shall become effective unless (i) the Administrative Agent shall have received documents
consistent with those delivered under Section 4.01(b) and (c), giving effect to such increase and
(ii) on the effective date of such increase, the conditions set forth in Section 4.02(a) and
(b) shall be satisfied (with all references in such paragraphs to a Borrowing being deemed to be
references to such increase) and the Administrative Agent shall have received a certificate to that
effect dated such date and executed by a Financial Officer of the Company.



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





 


47









 







Tranche Commitments or US/Canadian Tranche Commitments; provided, that if the Administrative Agent
does not specify any such actions, such outstanding B/As will continue outstanding for the duration
of the applicable Contract Periods and the applicable Borrowers’ reimbursement obligations under
Section 2.06(i) will continue to be owed to the Lenders that accepted and purchased such B/As.



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



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



(c) The Administrative Agent shall maintain accounts in which it shall record (i) the amount
of each Loan made and B/A accepted and purchased hereunder, the Class and Type of each such Loan
and, in the case of any LIBOR or EURIBOR Loan, the Interest Period applicable thereto, (ii) the
amount of any principal or interest due and payable or to become due and payable from each Borrower
to each Lender hereunder and (iii) the amount of any sum received by any Agent hereunder for the
account of the Lenders or any of them and each Lender’s share thereof. The London Agent and the
Canadian Agent shall furnish to the Administrative Agent, promptly after the making of any Loan or
Borrowing or the acceptance and purchase of any B/As with respect to which it is the Applicable
Agent or the receipt of any payment of principal or interest with respect to any such Loan or
Borrowing or any such B/As, information with respect thereto that will enable the Administrative
Agent to maintain the accounts referred to in the preceding sentence.



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



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





 


48









 







represented by one or more promissory notes in such form payable to the payee named therein (or, if
such promissory note is a registered note, to such payee and its registered assigns).



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



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



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



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



SECTION 2.12. Fees. (a) The Company agrees to pay to the Administrative Agent, in US
Dollars, for the account of each Lender, a facility fee, which shall accrue at the





 


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



(b) The Company agrees to pay (i) to the Administrative Agent for the account of each Global
Tranche Lender a participation fee with respect to its participations in Letters of Credit, which
shall accrue at the Applicable Rate used to determine the interest rate applicable to Global
Tranche LIBOR Revolving Loans, on the daily amount of such Lender’s LC Exposure (excluding any
portion thereof attributable to unreimbursed LC Disbursements) during the period from and including
the Effective Date to but excluding the later of the date on which such Lender’s Global Tranche
Commitment terminates and the date on which such Lender ceases to have any LC Exposure and (ii) to
each Issuing Bank a fronting fee, which shall accrue at the rate of 0.125% per annum on the portion
of the daily amount of the LC Exposure (excluding any portion thereof attributable to unreimbursed
LC Disbursements) attributable to Letters of Credit issued by such Issuing Bank during the period
from and including the Effective Date to but excluding the later of the date of termination of the
Global Tranche Commitments and the date on which there ceases to be any LC Exposure, as well as
each Issuing Bank’s standard fees with respect to the issuance, amendment, renewal or extension of
any Letter of Credit or processing of drawings thereunder. Participation fees and fronting fees
accrued or becoming payable in respect of Letters of Credit issued through and including the last
day of March, June, September and December of each year shall be payable on the third Business Day
following such last day, commencing on the first such date to occur after the Effective Date;
provided that all such fees shall be payable on the date on which the Global Tranche Commitments
terminate and any such fees accruing after the date on which the Global Tranche Commitments
terminate shall be payable on demand. Any other fees payable to the Issuing Banks pursuant to this
paragraph shall be payable within 10 days after demand. All participation fees and fronting fees
shall be computed on the basis of a year of
360 days and shall be payable for the actual number of days elapsed (including the first day
but excluding the last day).



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





 


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



(e) All fees payable hereunder shall be paid on the dates due, in immediately available funds,
to the Administrative Agent, to the Issuing Banks (in the case of fees payable to them) or to the
Canadian Agent (in the case of fees referred to in paragraph (c) of this Section) for distribution
(i) in the case of facility fees, to the Lenders, (ii) in the case of the participation fees, to
the Global Tranche Lenders and (iii) in the case of acceptance fees, to the Global Tranche Lenders
or the US/Canadian Tranche Lenders, as the case may be. Fees paid shall not be refundable under any
circumstances.



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



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



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



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



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



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



(g) All interest hereunder shall be computed on the basis of a year of 360 days, except that
(i) interest on Borrowings denominated in Sterling, (ii) interest computed by reference to the
Alternate Base Rate at times when the Alternate Base Rate is based on the Prime Rate and
(iii) interest on Canadian Prime Rate Borrowings and acceptance fees shall each be computed on the
basis of a year of 365 days (or, in the case of ABR Borrowings, 366 days in a leap year), and in


 


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each case shall be payable for the actual number of days elapsed (including the first day but
excluding the last day). The applicable Adjusted LIBO Rate, Adjusted EURIBO Rate, Alternate Base
Rate or Canadian Prime Rate shall be determined by the Applicable Agent, and such determination
shall be conclusive absent manifest error.



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



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



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



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




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




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




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



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





 


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



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



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



(e) The foregoing provisions of this Section shall not apply to Taxes, which shall be governed
solely by Section 2.17.



SECTION 2.16. Break Funding Payments. In the event of (a) the payment of any principal
of any LIBOR Loan or any EURIBOR Loan other than on the last day of an Interest Period applicable
thereto (including as a result of an Event of Default), (b) the conversion of any LIBOR Loan or any
EURIBOR Loan other than on the last day of the Interest Period applicable thereto, (c) the failure
to borrow, convert, continue or prepay any LIBOR Loan or any EURIBOR Loan or to make any B/A
Drawing on the date specified in any notice delivered pursuant hereto (regardless of whether any
such notice may be revoked or extended under Section 2.11(d) and is revoked or extended in
accordance therewith) or (d) the assignment of any LIBOR Loan or any EURIBOR Loan or the right to
receive payment in respect of a B/A other than on the last day of the Interest Period or Contract
Period applicable thereto as a result of a request by the applicable Borrower pursuant to
Section 2.19 or the CAM Exchange, then, in any such event, the applicable Borrower shall compensate
each Lender for the loss, cost and expense (but not for any lost profit) attributable to such
event. Such loss, cost or expense to any Lender shall be deemed to include an amount determined by
such Lender to be the excess, if any, of (i) (A) with respect to a LIBOR Loan or EURIBOR Loan, the
amount of interest which would have accrued on the principal amount of such Loan had such event not
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53









 





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



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



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



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



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


 


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(e) Any Lender that is entitled to an exemption from or reduction of withholding tax under the
law of the jurisdiction in which a Borrower to which such Lender may be required to make Loans
hereunder is resident or located, or any treaty to which such jurisdiction is a party, with respect
to payments under this Agreement shall deliver to the Company (with a copy to the Administrative
Agent), at the time or times prescribed by applicable law, such properly completed and executed
documentation prescribed by applicable law or reasonably requested by the Company as will permit
such payments to be made without withholding or at a reduced rate; provided that such Lender has
received written notice from the Company advising it of the availability of such exemption or
reduction and containing all applicable documentation. Each Lender shall promptly notify the
Company at any time it determines that it is no longer in a position to provide any such previously
delivered documentation to the Company.



(f) If the Administrative Agent or a Lender determines, in its sole discretion, that it has
received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by a
Borrower or with respect to which a Borrower has paid additional amounts pursuant to this Section,
it shall pay over such refund to such Borrower (but only to the extent of indemnity payments made,
or additional amounts paid, by such Borrower under this Section with respect to the Indemnified
Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of the
Administrative Agent or such Lender and without interest (other than any interest paid by the
relevant Governmental Authority with respect to such refund); provided, that such Borrower, upon
the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to
such Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such
Lender is required to repay such refund to such Governmental Authority. This Section shall not be
construed to require the Administrative Agent or any Lender to make available its tax returns (or
any other information relating to its taxes which it deems confidential) to any Borrower or other
Person.



(g) With respect to amounts advanced to, or otherwise made available to, a Canadian Subsidiary
by a Global Tranche Lender or a US/Canadian Tranche Lender, any Non-Canadian Lender or Non-Canadian
Issuing Bank: (i) either (I)(A) shall designate, for the purpose and throughout the term of such
Loan, an office of such Person in Canada as its applicable lending office; (B) severally represent
and warrant that, as of the date such Person becomes a party to this Agreement, it is an Authorized
Non-Canadian Bank; (C) covenant and agree that all material times other than by reason of a change
in treaty, law, rule or regulation occurring after the date of this Agreement (1) such Person will
continue to be an Authorized Non-Canadian Bank, (2) such Loan will be a Canadian Banking Business
Asset and (3) such Person will record such Canadian Banking Business Asset and any income thereon
in all financing statements for its Canadian Banking Business that are filed (or are required to be
filed) with the Superintendent of Financial Institutions, and will include in its income for a
taxation year from the Canadian Banking Business any income in respect of that Canadian Banking
Business Asset or (II) if such Person becomes a Non-Canadian Lender or Non-Canadian Issuing Bank
pursuant to an assignment under Section 11.04, shall represent to the Borrower, at any time prior
to the occurrence and continuation of an Event of Default under clause (a), (b), (h), (i) or (j) of
Article VII, that it is entitled to receive payments of interest hereunder without imposition of
Canadian withholding tax or subject to Canadian withholding tax at no greater rate than applied to
the transferor; and (ii) shall, upon request, provide the Borrower and the Administrative Agent
with such documentation as may be reasonably necessary to establish the Lender’s entitlement to an
exemption from Canadian withholding tax on payments hereunder (but only so long as such Person is
or remains lawfully entitled to do so). Each affected Non-Canadian Lender or Non-Canadian Issuing
Bank shall


 


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promptly notify the Borrower in writing upon becoming aware at any time that it is not in
compliance with the provisions of this paragraph (g).



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



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



(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise,
obtain payment in respect of its Loans, B/As, participations in LC Disbursements or Swingline Loans
or accrued interest on any of the foregoing (collectively “Claims”) under any Tranche resulting in
such Lender receiving payment of a greater proportion of the aggregate amount of its Claims under
such Tranche than the proportion received by any other Lender with Claims under such Tranche, then
the Lender receiving such greater proportion shall purchase (for cash at face value) participations
in the Claims of the other Lenders under such Tranche to the extent necessary so that the benefit
of all such payments shall be shared by the Lenders with Claims under such Tranche ratably in
accordance with the aggregate amounts of their respective Claims under such Tranche; provided that
(i) if any such participations are purchased and all or any portion of the payment giving rise
thereto is recovered, such participations shall be rescinded and the purchase price restored to the
extent of such recovery, without interest, and (ii) the


 


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provisions of this paragraph shall not be construed to apply to any payment made by any Borrower
pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a
Lender as consideration for the assignment of or sale of a participation in any of its Claims to
any assignee or participant, other than to the Company or any Subsidiary or Affiliate thereof (as
to which the provisions of this paragraph shall apply). Each Borrower consents to the foregoing and
agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against the Company and each
Borrower rights of set-off and counterclaim with respect to such participation as fully as if such
Lender were a direct creditor of the Company or such Borrower in the amount of such participation.



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



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



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



(b) If (i) any Lender requests compensation under Section 2.15 or 2.20, (ii) any Loan Party is
required to pay any additional amount to any Lender or any Governmental Authority for the account
of any Lender pursuant to Section 2.17 or (iii) any Lender defaults in its obligation to fund
Revolving Loans or to accept and purchase B/As hereunder, then the Company may, at its sole expense
and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign
and delegate, without recourse (in accordance with and subject to the restrictions contained in
Section 11.04), all its interests, rights and obligations under the Loan Documents to an assignee
that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that (x) such Borrower shall have received the prior written


 


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consent of the Administrative Agent (and, if a Global Tranche Commitment is being assigned, the
Issuing Bank), which consent, in each case, shall not unreasonably be withheld, (y) such Lender
shall have received payment of an amount equal to the outstanding principal of its Loans and B/As
and funded participations in LC Disbursements and Swingline Loans, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of
such outstanding principal, funded participations and accrued interest and fees) or such Borrower
(in the case of all other amounts) and (z) in the case of any such assignment resulting from a
claim for compensation under Section 2.15 or 2.20 or payments required to be made pursuant to
Section 2.17, such assignment will result in a material reduction in such compensation or payments.
A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitling the Company to require
such assignment and delegation cease to apply.



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



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



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



(d) The foregoing provisions of this Section shall not apply to Taxes, which shall be governed
solely by Section 2.17.



SECTION 2.21. Designation of Borrowing Subsidiaries. The Company may at any time and
from time to time designate (a) any US Subsidiary, UK Subsidiary or Canadian Subsidiary, or, with
the prior written consent of each Global Tranche Lender, any other






 


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



ARTICLE III




Representations and Warranties 




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



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



SECTION 3.02. Authorization; Enforceability. The Transactions to be entered into by
each Loan Party are within such Loan Party’s corporate, partnership or other applicable powers and
have been duly authorized by all necessary corporate, partnership or other applicable and, if
required, stockholder or other equityholder action. This Agreement has been duly executed and
delivered by each Borrower and constitutes, and each other Loan Document to which any Loan Party is
to be a party, when executed and delivered by such Loan Party, will constitute, a legal, valid and
binding obligation of such Borrower or Loan Party (as the case may be),


 


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enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors’ rights generally and subject to
general principles of equity, regardless of whether considered in a proceeding in equity or at law.



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



(b) Neither the Company nor any of the Subsidiaries is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose of purchasing or carrying
margin stock (as defined in Regulation U of the Board). No part of the proceeds of any Loan will be
used, whether directly or indirectly, for any purpose that would entail a violation of such
Regulation U.



SECTION 3.04. Financial Condition; No Material Adverse Change. (a) The Company has
heretofore furnished to the Lenders its consolidated balance sheet and statements of income,
stockholders equity and cash flows (i) as of and for the fiscal year ended September 30, 2005,
audited and reported on by Ernst & Young LLP, independent public accountants and (ii) as of and for
the fiscal quarters and the portions of the fiscal year ended December 31, 2005, March 31, 2006,
and June 30, 2006, certified by its chief financial officer. Such financial statements present
fairly, in all material respects, the financial position and results of operations and cash flows
of the Company and its consolidated subsidiaries as of such dates and for such periods in
accordance with GAAP, subject to year-end audit adjustments and the absence of footnotes in the
case of the statements referred to in clause (ii) above.



(b) Since September 30, 2005, there has been no material adverse change in the business,
assets, operations, prospects or condition (financial or otherwise) of the Company and the
Subsidiaries, taken as a whole.



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



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



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


 


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expected, individually or in the aggregate, to result in a Material Adverse Effect or (ii) that
involve any of the Loan Documents or the Transactions.



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



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



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



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



SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably expected to occur
that, when taken together with all other such ERISA Events for which liability is reasonably
expected to occur, could reasonably be expected to result in a Material Adverse Effect. The present
value of all accumulated benefit obligations under each Plan (based on the assumptions used for
purposes of Statement of Financial Accounting Standards No. 87) did not, as of the date of the most
recent financial statements reflecting such amounts, exceed by more than $25,000,000 the fair
market value of the assets of such Plan, and the present value of all accumulated benefit
obligations of all underfunded Plans (based on the assumptions used for purposes of Statement of
Financial Accounting Standards No. 87) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed by more than $25,000,000 the fair market value of the
assets of all such underfunded Plans.



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


 


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information, the Company represents only that such information was prepared in good faith based
upon assumptions believed to be reasonable at the time.



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



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



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



SECTION 3.15. Senior Indebtedness. The Obligations constitute, and have been
designated as, “Senior Indebtedness”, “Designated Senior Debt”, “Designated Guarantor Senior Debt”
or any equivalent term, however defined, under and as defined in each document or instrument
governing subordinated Indebtedness of the Company or any Subsidiary.



ARTICLE IV




Conditions 




SECTION 4.01. Effective Date. The obligations of the Lenders to make Loans and accept
and purchase B/As and of the Issuing Banks to issue Letters of Credit hereunder shall not become
effective until the date on which each of the following conditions is satisfied (or waived in
accordance with Section 11.02):




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




(b) The Administrative Agent shall have received a favorable written opinion (addressed to
the Administrative Agent and the Lenders and dated the Effective Date) of (i) Dechert LLP,
counsel for the Borrowers, substantially in the form of Exhibit F-1, (ii) John G. Chou,
Deputy General Counsel of the Company, in substantially the form of Exhibit F-2,
(iii) McMillan Binch Mendelsohn LLP, counsel for the Canadian


 


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Borrowing Subsidiaries on the date hereof, in substantially the form of Exhibit F-3,
and (iv) Dechert LLP, counsel for the UK Borrowing Subsidiaries on the date hereof, in
substantially the form of Exhibit F-4 and, in each case, covering such other matters
relating to the Loan Parties, the Loan Documents or the Transactions as the Administrative
Agent or the Required Lenders shall reasonably request. The Company hereby requests such
counsel to deliver such opinions.




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




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




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




(f) The Guarantee Requirement shall be satisfied.




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




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



The Administrative Agent shall notify the Company and the Lenders of the Effective Date, and such
notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the
Lenders to make Loans and accept and purchase B/As and of the Issuing Banks to issue Letters of
Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied
(or waived pursuant to Section 11.02) at or prior to 5:00 p.m., New York City time, on November 30,
2006 (and, in the event such conditions are not so satisfied or waived, the Commitments shall
terminate at such time).



SECTION 4.02. Each Credit Event. The obligation of each Lender to make a Loan on the
occasion of any Borrowing or to accept and purchase B/As on the occasion of any B/A Drawing, and of
each Issuing Bank to issue, amend, renew or extend any Letter of Credit, is


 


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subject to receipt of the request therefor in accordance herewith and to the satisfaction of the
following conditions:




(a) The representations and warranties of each Loan Party set forth in the Loan Documents
shall be true and correct in all material respects on and as of the date of such Borrowing or
B/A Drawing or the date of issuance, amendment, renewal or extension of such Letter of Credit,
as applicable.




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



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



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




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




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




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



ARTICLE V




Affirmative Covenants 




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


 


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



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



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



(c) concurrently with any delivery of financial statements under clause (a) or (b) above, a
certificate of a Financial Officer of the Company (i) certifying as to whether a Default has
occurred and, if a Default has occurred, specifying the details thereof and any action taken or
proposed to be taken with respect thereto, (ii) setting forth reasonably detailed calculations
demonstrating compliance with Sections 6.11 (unless the Company shall no longer be required to
comply with such Section by reason of the last sentence thereof) and 6.12 and (iii) stating whether
any change in GAAP or in the application thereof has occurred since the date of the Company’s
audited financial statements referred to in Section 3.04 and, if any such change has occurred,
specifying the effect of such change on the financial statements accompanying such certificate;



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



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



(f) promptly following any request therefor, such other information regarding the operations,
business affairs, assets and financial condition of the Company or any Subsidiary, or compliance
with the terms of any Loan Document, as the Administrative Agent, or any Lender through the
Administrative Agent, may reasonably request, it being understood that the Company


 


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may require any Lender receiving such information to confirm in writing its confidentiality
obligations under Section 11.12.



Information required to be delivered pursuant to this Section shall be deemed to have been
delivered on the date on which the Company provides notice to the Administrative Agent that such
information has been posted on the Company’s website on the Internet at
http://www.amerisourcebergen.com or at the appropriate Borrower designated website at
http://www.sec.gov or http://intralinks.com; provided that the Company shall
deliver paper copies of the information referred to in this Section after the date delivery is
required thereunder to any Lender that requests such delivery within five Business Days after such
request.



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




(a) the occurrence of any Default;




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




(c) the occurrence of any ERISA Event that, alone or together with any other ERISA Events
that have occurred, could reasonably be expected to result in liability of the Company and the
Subsidiaries in an aggregate amount exceeding $25,000,000;




(d) the amendment, modification or waiver of any provision of any agreement or instrument
relating to any Securitization in effect on the date hereof or to the 2003 Securitization to
(i) add any termination event or other similar event, however denominated, or to make any
existing such event more onerous to the Company, any Subsidiary or any Securitization Entity,
(ii) advance the stated date on which such Securitization terminates, (iii) reduce the Financed
Amount of such Securitization or (iv) materially reduce the advance rate of such
Securitization; and




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



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



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



SECTION 5.04. Payment of Obligations. The Company will, and will cause each of the
Subsidiaries to, pay its Indebtedness and other obligations, including Tax liabilities, before the
same shall become delinquent or in default, except where (a) the validity or amount thereof is
being contested in good faith by appropriate proceedings, (b) the Company or the applicable


 


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Subsidiary has set aside on its books adequate reserves with respect thereto in accordance with
GAAP, (c) such contest effectively suspends collection of the contested obligation and the
enforcement of any Lien securing such obligation and (d) the failure to make payment pending such
contest could not reasonably be expected to result in a Material Adverse Effect.



SECTION 5.05. Maintenance of Properties; Insurance. The Company will, and will cause
each of the Subsidiaries to, (a) keep and maintain all property material to the conduct of its
business in good working order and condition, ordinary wear and tear excepted and (b) maintain,
with financially sound and reputable insurance companies insurance in such amounts and against such
risks as are customarily maintained by companies engaged in the same or similar businesses
operating in the same or similar locations; provided that the foregoing shall not prohibit the
Pharmerica Spin-Off.



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



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



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



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



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


 


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shall be required under the terms of any such subordinated Indebtedness in order that the Lenders
may have and exercise any payment blockage or other remedies available or potentially available to
holders of senior indebtedness under the terms of such subordinated indebtedness.



ARTICLE VI




Negative Covenants 




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



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



(b) The Company will not, and will not permit any Subsidiary to, create, incur, assume or
permit to exist any Indebtedness under any Securitization, or any Indebtedness of an Excluded
Subsidiary, other than:




(i) Indebtedness under the 2003 Securitization or any other receivables Securitization;




(ii) Indebtedness of Excluded Subsidiaries (other than any Securitization Entity) in an
aggregate principal amount not exceeding $400,000,000 at any time outstanding;




(iii) Indebtedness incurred by Pharmerica and its subsidiaries in connection with the
Pharmerica Spin-Off.



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




(a) Permitted Encumbrances;




(b) any Lien on any property or asset of the Company or any Subsidiary existing on the
date hereof and set forth in Schedule 6.02; provided that (i) such Lien shall


 


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not apply to any other property or asset of the Company or any Subsidiary and (ii) such Lien
shall secure only those obligations which it secures on the date hereof and extensions,
renewals and replacements thereof that do not increase the outstanding principal amount
thereof;




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




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




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




(f) other Liens securing obligations not greater than US$50,000,000 in the aggregate; and




(g) Liens securing Indebtedness incurred by Pharmerica or its subsidiaries in connection
with the Pharmerica Spin-Off.



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


 


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Designated Subsidiary or a Borrower) may liquidate or dissolve if the Company determines in good
faith that such liquidation or dissolution is in the best interests of the Company and is not
materially disadvantageous to the Lenders and (v) the Company and the Subsidiaries may complete the
Pharmerica Spin-Off; provided that any such merger or amalgamation involving a Person that is not a
wholly owned Subsidiary immediately prior to such merger or amalgamation shall not be permitted
unless also permitted by Section 6.04.



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



SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions. The Company
will not, and will not permit any of the Subsidiaries to, purchase or acquire (including pursuant
to any merger or amalgamation with any Person that was not a wholly owned Subsidiary prior to such
merger or amalgamation) any Equity Interests in or evidences of indebtedness or other securities
(including any option, warrant or other right to acquire any of the foregoing) of, make any loans
or advances to, Guarantee any obligations of, or make any investment or any other interest in, any
other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any
assets of any other Person constituting a business unit, if (a) a Default shall have occurred and
be continuing or would occur as a result of any such transaction and any related incurrence of
Indebtedness or (b) the Company shall not be in compliance with Sections 6.11 (unless the Company
shall no longer be required to comply with such Section by reason of the last sentence thereof) and
6.12 (determined on a pro forma basis as if such transaction and any related incurrence of
Indebtedness had occurred on the first day of the most recent period of four fiscal quarters for
which financial statements shall have been delivered pursuant to Section 5.01(a) or (b)). The
foregoing provisions of this Section shall not prohibit (a) investments, loans, advances,
guarantees or acquisitions made pursuant to or in connection with the 2003 Securitization or any
other Securitization of accounts receivable or (b) the Pharmerica Spin-Off.



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




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




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




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




(d) the sale, transfer or other disposition of Pharmerica and its subsidiaries, or their
assets, in the Pharmerica Spin-Off; and




(e) sales, transfers and other dispositions of assets that are not permitted by any other
clause of this Section (including pursuant to sale and leaseback transactions); provided that
the aggregate fair market value of all assets sold, transferred or otherwise


 


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disposed of in reliance upon this clause (d) shall not exceed, at any time, 20% of the
Consolidated Tangible Assets of the Company and the Subsidiaries, as reflected on a
consolidated balance sheet of the Company as of the last day of the most recent fiscal quarter
for which financial statements shall have been delivered pursuant to Section 5.01(a) and (b);
provided that, in the event the Pharmerica Spin-Off is consummated and only for purposes of the
preceding calculation, the Consolidated Tangible Assets of the Company and the Subsidiaries as
of the last day of the fiscal quarter immediately preceding the Pharmerica Spin-Off shall be
calculated on a pro forma basis for the consummation of the Pharmerica Spin-Off as if it had
occurred on the last day of such fiscal quarter immediately preceding the quarter in which the
Pharmerica Spin-Off is consummated.



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



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



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



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


 


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SECTION 6.09. Restrictive Agreements. The Company will not, and will not permit any of
the Subsidiaries to, directly or indirectly, enter into, incur or permit to exist any agreement or
other arrangement that prohibits, restricts or imposes any condition upon (a) the ability of the
Company or any Domestic Subsidiary to create, incur or permit to exist any Lien upon any of its
property or assets (including, without limitation, negative pledges, but other than negative
pledges that do not prohibit, restrict or impose any condition upon Liens securing this Agreement
or the Obligations) or (b) the ability of any Domestic Subsidiary to pay dividends or other
distributions with respect to any shares of its capital stock or to make or repay loans or advances
to the Company or any other Subsidiary or to Guarantee Indebtedness of the Company or any other
Subsidiary; provided that (i) the foregoing shall not apply to restrictions and conditions imposed
by law or by any Loan Document or by any agreement, document or instrument relating to any
Securitization or any indenture, agreement or instrument evidencing or governing Indebtedness, in
each case, as in effect on the date hereof or as modified in accordance herewith, or relating to
the 2003 Securitization as modified in accordance herewith, (ii) the foregoing shall not apply to
restrictions and conditions existing on the date hereof identified on Schedule 6.09 (but
shall apply to any amendment or modification expanding the scope of, any such restriction or
condition), (iii) the foregoing shall not apply to customary restrictions and conditions contained
in agreements relating to the sale of a Subsidiary pending such sale, provided such restrictions
and conditions apply only to the Subsidiary that is to be sold and such sale is permitted
hereunder, (iv) clause (a) of the foregoing shall not apply to restrictions or conditions imposed
by any agreement relating to secured Indebtedness permitted by this Agreement if such Indebtedness
is incurred in accordance with Section 6.01 and such restrictions or conditions apply only to the
property or assets financed with such Indebtedness, (v) clause (a) of the foregoing shall not apply
to customary provisions in leases and other contracts restricting the assignment thereof, (vi) the
Company may enter into agreements limiting Guarantees by Subsidiaries, provided that any such
agreements do not limit or impair the Guarantees issued or required to be issued in connection with
this Agreement and (viii) the foregoing shall not apply to restrictions and conditions contained in
agreements governing Indebtedness incurred by Pharmerica and its subsidiaries in connection with
the Pharmerica Spin-Off.



SECTION 6.10. Material Documents. The Company will not, nor will it permit any
Subsidiary to, amend, modify or waive in any manner that could reasonably be expected to adversely
affect the Lenders any of its rights under (i) any indenture, material agreement or material
instrument evidencing or governing Indebtedness or (ii) its certificate of incorporation, by-laws
or other organizational documents; provided that the foregoing shall not restrict the amendment,
modification or waiver of any Indebtedness of Pharmerica or its subsidiaries in connection with the
Pharmerica Spin-Off.



SECTION 6.11. Fixed Charge Coverage Ratio. The Company will not permit the ratio of
(a) Consolidated EBITDAR to (b) the sum, without duplication, of (i) Consolidated Cash Interest
Expense, (ii) cash dividends on Equity Interests in the Company and (iii) rental payments of the
Company and the Subsidiaries (other than under capital leases), determined on a consolidated basis
in accordance with GAAP, in each case for any period of four consecutive fiscal quarters ending on
any date that is the last day of a fiscal quarter, to be less than 3.00 to 1.00 on the last day of
such period. Notwithstanding the foregoing, the Company shall not be required to comply with the
covenant contained in this Section after any date on which the Index Debt shall have been rated at
least BBB- by S&P, at least Baa3 by Moody’s and at least BBB- by Fitch.



SECTION 6.12. Leverage Ratio. The Company will not permit the Leverage Ratio as of the
last day of any fiscal quarter to exceed 3.00 to 1.00.


 


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SECTION 6.13. Fiscal Quarters. The Company will not change, and will not permit any
Subsidiary to change, the fiscal quarter ends of the Company or any Subsidiary to any date other
than March 31, June 30, September 30 or December 31.



ARTICLE VII




Events of Default 





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




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




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




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




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




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




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




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


 


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Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or
assets securing such Indebtedness;




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




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




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




(k) one or more judgments for the payment of money in an aggregate amount in excess of
US$25,000,000 which is not paid or fully covered by insurance shall be rendered against any
Borrower, any other Significant Subsidiary, any Designated Subsidiary or any combination
thereof and the same shall remain undischarged for a period of 30 consecutive days during which
execution shall not be effectively stayed, or any action shall be legally taken by a judgment
creditor to attach or levy upon any assets of the Borrower or any other Significant Subsidiary
or any Designated Subsidiary to enforce any such judgment;




(l) an ERISA Event shall have occurred that, in the opinion of the Required Lenders, when
taken together with all other ERISA Events that have occurred, could reasonably be expected to
result in liability of the Borrowers, the Significant Subsidiaries and the Designated
Subsidiaries in an aggregate amount exceeding US$25,000,000;




(m) except as provided in Section 11.14 or 11.16, any Guarantee under any Loan Document or
any other guarantee agreement entered into pursuant to Section 6.01(a) shall cease to be, or
shall be asserted by any Loan Party not to be, a valid, binding and enforceable obligation of
the Company or the applicable Designated Subsidiary;




(n) a Change in Control shall occur;



then, and in every such event (other than an event with respect to any Borrower or any Significant
Subsidiary described in clause (h) or (i) of this Article), and at any time thereafter during the


 


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continuance of such event, the Administrative Agent may, and at the request of the Required Lenders
shall, by notice to the Company, take either or both of the following actions, at the same or
different times: (i) terminate the Commitments, and thereupon the Commitments shall terminate
immediately and (ii) declare the Loans and all payment obligations of the Borrowers in respect of
B/As then outstanding to be due and payable in whole (or in part, in which case any principal not
so declared to be due and payable may thereafter be declared to be due and payable), and thereupon
the principal of the Loans and all payment obligations of the Borrowers in respect of B/As so
declared to be due and payable, together with accrued interest thereon and all fees and other
obligations of the Borrowers accrued hereunder, shall become due and payable immediately, without
presentment, demand, protest or other notice of any kind, all of which are hereby waived by the
Borrowers; and in case of any event with respect to any Borrower or any Significant Subsidiary
described in clause (h) or (i) of this Article, the Commitments shall automatically terminate and
the principal of the Loans and all payment obligations of the Borrowers in respect of B/As then
outstanding, together with accrued interest thereon and all fees and other obligations of the
Borrowers accrued hereunder, shall automatically become due and payable, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by the Borrowers.



ARTICLE VIII




The Agents 




Each of the Lenders and Issuing Banks hereby irrevocably appoints the Agents as its agents and
authorizes the Agents to take such actions on its behalf and to exercise such powers as are
delegated to the Agents by the terms of the Loan Documents, together with such actions and powers
as are reasonably incidental thereto.



Any Person serving as an 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 an Agent, and such
Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind
of business with the Company or any Subsidiary or other Affiliate thereof as if it were not an
Agent hereunder.



The Agents shall not have any duties or obligations except those expressly set forth in the
Loan Documents. Without limiting the generality of the foregoing, (a) the Agents shall not be
subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and
is continuing, (b) the Agents shall not have any duty to take any discretionary action or exercise
any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan
Documents that the Agents are required to exercise in writing as directed by the Required Lenders
(or such other number or percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 11.02) and (c) except as expressly set forth in the Loan Documents, the Agents
shall not have any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to the Company or any of the Subsidiaries that is communicated to or obtained
by them or any of their Affiliates in any capacity. The Agents shall not be liable for any action
taken or not taken by them with the consent or at the request of the Required Lenders (or such
other number or percentage of the Lenders as shall be necessary under the circumstances as provided
in Section 11.02) or in the absence of their own gross negligence or wilful misconduct. Each Agent
shall be deemed not to have knowledge of any Default unless and until written notice thereof is
given to such Agent by the Company or a Lender, and the Agents 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 any Loan Document, (ii) the


 


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contents of any certificate, report or other document delivered thereunder or in connection
therewith, (iii) the performance or observance of any of the covenants, agreements or other terms
or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or
genuineness of any Loan Document or any other agreement, instrument or document or (v) the
satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than
to confirm receipt of items expressly required to be delivered to such Agent.



Each 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
believed by it to be genuine and to have been signed or sent by the proper Person. Each Agent also
may rely upon any statement made to it orally or by telephone and believed by it to be made by the
proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with
legal counsel (who may be counsel for any Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it in accordance with
the advice of any such counsel, accountants or experts.



Each Agent may perform any and all its duties and exercise its rights and powers by or through
any one or more sub-agents appointed by it. Each Agent and any such sub-agent may perform any and
all its duties and exercise its rights and powers through its respective Related Parties. The
exculpatory provisions of the preceding paragraphs and the provisions of Section 11.03 shall apply
to any such sub-agent and to the Related Parties of each 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 Agent.



Subject to the appointment and acceptance of a successor Agent as provided in this paragraph,
each Agent may resign at any time by notifying the other Agents, the Lenders, the Issuing Banks and
the Company. Upon any such resignation, the Required Lenders (in the case of a resignation by the
Administrative Agent) or the Administrative Agent (in the case of a resignation by any other Agent)
shall have the right, in consultation with the Company, to appoint a successor. If no successor
Agent shall have been so appointed and shall have accepted such appointment within 30 days after
the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the
Lenders and the Issuing Banks, appoint a successor Agent which shall be a bank with an office in
New York, New York, or an Affiliate of any such bank, that is reasonably acceptable to the Company.
Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall
succeed to and become vested with all the rights, powers, privileges and duties of the retiring
Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The
fees payable by the Company to a successor Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Company and such successor. After an Agent’s
resignation hereunder, the provisions of this Article and Section 11.03 shall continue in effect
for the benefit of such retiring 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 it was acting as Agent.



Each Lender acknowledges that it has, independently and without reliance upon any Agent or any
other Lender 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 any Agent or any other Lender 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.


 


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The parties agree that none of the Co-Lead Arrangers and Joint Bookrunners, the Syndication
Agent or the Documentation Agents named on the cover page of this Agreement shall, in such
capacities, have any powers, duties or responsibilities under this Agreement or any other Loan
Document.



ARTICLE IX




Collection Allocation Mechanism 




On the CAM Exchange Date, (a) the Commitments shall automatically and without further act be
terminated as provided in Article VII and (b) the Lenders shall automatically and without further
act be deemed to have made reciprocal purchases of interests in the Designated Obligations such
that, in lieu of the interests of each Lender in the particular Designated Obligations that it
shall own as of such date and immediately prior to the CAM Exchange, such Lender shall own an
interest equal to such Lender’s CAM Percentage in each Designated Obligation. It is understood and
agreed that Lenders holding interests in B/As immediately prior to the CAM Exchange shall discharge
their obligations with respect to the payment of such B/As at the maturity thereof in exchange for
the interests acquired by such Lenders in funded Loans in the CAM Exchange. Each Lender, each
person acquiring a participation from any Lender as contemplated by Section 11.04 and each Borrower
hereby consents and agrees to the CAM Exchange. Each Borrower and each Lender agrees from time to
time to execute and deliver to the Agents all such promissory notes and other instruments and
documents as the Administrative Agent shall reasonably request to evidence and confirm the
respective interests and obligations of the Lenders after giving effect to the CAM Exchange, and
each Lender agrees to surrender any promissory notes originally received by it hereunder to the
Administrative Agent against delivery of any promissory notes so executed and delivered; provided
that the failure of any Borrower to execute or deliver or of any Lender to accept any such
promissory note, instrument or document shall not affect the validity or effectiveness of the CAM
Exchange.



As a result of the CAM Exchange, on and after the CAM Exchange Date, each payment received by
an Agent pursuant to any Loan Document in respect of the Designated Obligations shall be
distributed to the Lenders pro rata in accordance with their respective CAM Percentages (to
be redetermined as of each such date of payment or distribution to the extent required by the next
paragraph).



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


 


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ARTICLE X




Guarantee 




In order to induce the Lenders to extend credit to the other Borrowers hereunder, the Company
hereby irrevocably and unconditionally guarantees, as a primary obligor and not merely as a surety,
the payment when and as due of the Obligations of such other Borrowers. The Company further agrees
that the due and punctual payment of such Obligations may be extended or renewed, in whole or in
part, without notice to or further assent from it, and that it will remain bound upon its guarantee
hereunder notwithstanding any such extension or renewal of any such Obligation.



The Company waives presentment to, demand of payment from and protest to any Borrower of any
of the Obligations, and also waives notice of acceptance of its obligations and notice of protest
for nonpayment. The obligations of the Company hereunder shall not be affected by (a) the failure
of any Agent or Lender to assert any claim or demand or to enforce any right or remedy against any
Loan Party under the provisions of this Agreement, any other Loan Document or otherwise, (b) any
extension or renewal of any of the Obligations, (c) any rescission, waiver, amendment or
modification of, or release from, any of the terms or provisions of this Agreement, or any other
Loan Document or agreement, (d) any default, failure or delay, wilful or otherwise, in the
performance of any of the Obligations, (e) any decree or order, or any law or regulation of any
jurisdiction or event affecting any term of an Obligation or (f) any other act, omission or delay
to do any other act which may or might in any manner or to any extent vary the risk of the Company
or otherwise operate as a discharge of a guarantor as a matter of law or equity or which would
impair or eliminate any right of the Company to subrogation or any other circumstance that might
constitute a defense of the Company or any other Borrower.



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



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



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



In furtherance of the foregoing and not in limitation of any other right any Agent or Lender
may have at law or in equity against the Company by virtue hereof, upon the failure of any other
Borrower to pay any Obligation when and as the same shall become due, whether at maturity, by
acceleration, after notice of prepayment or otherwise, the Company hereby promises to and will,
upon receipt of written demand by any Agent or Lender, forthwith pay, or cause to be


 


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paid, to the Applicable Agent or Lender in cash an amount equal to the unpaid principal amount of
such Obligations then due, together with accrued and unpaid interest thereon. The Company further
agrees that if payment in respect of any Obligation shall be due in a currency other than US
Dollars and/or at a place of payment other than New York and if, by reason of any Change in Law,
disruption of currency or foreign exchange markets, war or civil disturbance or other event,
payment of such Obligation in such currency or at such place of payment shall be impossible or, in
the reasonable judgment of any Agent or Lender, not consistent with the protection of its rights or
interests, then, at the election of the Administrative Agent, the Company shall make payment of
such Obligation in US Dollars (based upon the applicable Exchange Rate in effect on the date of
payment) and/or in New York, and shall indemnify each Agent and Lender against any losses or
reasonable out-of-pocket expenses that it shall sustain as a result of such alternative payment.



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



ARTICLE XI




Miscellaneous 




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




(i) if to the Company, to it at 1300 Morris Drive, Suite 100, Chesterbrook, PA 19087,
Attention of J.F. Quinn (Telecopy (610) 727-3639), with a copy to the Company, Attention of
General Counsel;




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




(iii) if to the Administrative Agent, JPMorgan Chase Bank, N.A., in its capacity as a
Swingline Lender or JPMorgan Chase Bank, N.A., in its capacity as Issuing Bank, to JPMorgan
Chase Bank, N.A., Loan and Agency Services Group, 1111 Fannin, Floor 10, Houston, TX 77002,
Attention of Claudia Correa, with a copy to JPMorgan Chase Bank, N.A., 270 Park Avenue,
New York, New York 10017, Attention of Dawn Lee Lum (Telecopy No. (212) 270-3279);




(iv) if to the London Agent, to J. P. Morgan Europe Limited, 125 London Wall, London EC2Y
5AJ, Attention of Agency Department (Telecopy No. 44-207-777-2360), with a copy to the
Administrative Agent as provided under clause (iii) above;




(v) if to the Canadian Agent, in its capacity as a Swingline Lender, to The Bank of Nova
Scotia, Wholesale Banking Operations, Loans Administration and Agency Services, 720 King Street
West, 3rd Floor, Toronto, Ontario, Canada, M5V 2T3, Attention of Andrew Yiu, with a copy to the
Administrative Agent as provided under clause (iii) above; and


 


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



(b) Notices and other communications to the Lenders hereunder may be delivered or furnished by
electronic communications pursuant to procedures approved by the Agents; provided that the
foregoing shall not apply to notices pursuant to Article II unless otherwise agreed by the
Applicable Agent and the applicable Lender. Any Agent or 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.



(c) Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and other
communications given to any party hereto in accordance with the provisions of this Agreement shall
be deemed to have been given on the date of receipt.



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



(b) None of this Agreement, any Loan Document or any provision hereof or thereof may be
waived, amended or modified except, in the case of this Agreement, pursuant to an agreement or
agreements in writing entered into by the Company and the Required Lenders or, in the case of any
other Loan Document, pursuant to an agreement or agreements in writing entered into by the
Administrative Agent and the Loan Party or Loan Parties that are parties thereto, in each case with
the consent of the Required Lenders; provided that no such agreement shall (i) increase any
Commitment of any Lender without the written consent of such Lender, (ii) reduce the principal
amount of any Loan, payment obligation in respect of a B/A or LC Disbursement or reduce the rate of
interest thereon, or reduce any fees payable hereunder, without the written consent of each Lender
affected thereby, (iii) postpone the maturity of any Loan or B/A, or the required date of
reimbursement of any LC Disbursement, or any date for the payment of any interest or fees payable
hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled
date of expiration of any Commitment, without the written consent of each Lender affected thereby,
(iv) change Section 2.18(b) or (c) in a manner that would alter the pro rata
sharing of payments required thereby, without the written consent of each Lender, (v) change any of
the provisions of this Section or the percentage set forth in the definition of “Required Lenders”
or any other provision of any Loan Document specifying the number or percentage of Lenders (or
Lenders of any Class) required to waive, amend or modify any rights thereunder or make any
determination or grant any consent thereunder, without the written consent of each Lender (or each
Lender of such Class, as the case may be), (vi) release the Company from its


 


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Guarantee under Article X, or release any Subsidiary from its Guarantee under the Guarantee
Agreement or any other guarantee agreement entered into pursuant to Section 6.01(a) (except as
expressly provided in this Agreement or the Guarantee Agreement), or limit the liability of the
Company or any Subsidiary in respect of any such Guarantee, without the written consent of each
Lender or (vii) change any provision of any Loan Document in a manner that by its terms adversely
affects the rights in respect of payments or prepayments due to Lenders with Commitments or
Obligations of any Class differently than those with Commitments or Obligations of any other Class,
without the written consent of Lenders holding a majority in interest of the Commitments and
outstanding Loans and B/As of the adversely affected Class; provided further that (i) no such
agreement shall amend, modify or otherwise affect the rights or duties of any Agent, Issuing Bank
or Swingline Lender without the prior written consent of such Agent, Issuing Bank or Swingline
Lender, as the case may be and (ii) any waiver, amendment or modification of this Agreement that by
its terms affects the rights or duties under this Agreement of one or more Tranches (but not of one
or more other Tranches) may be effected by an agreement or agreements in writing entered into by
the Company and requisite percentage in interest of the affected Lenders under the applicable
Tranches. Notwithstanding the foregoing, any provision of this Agreement may be amended by an
agreement in writing entered into by the Company, the Required Lenders and the Administrative Agent
(and, if their rights or obligations are affected thereby, the other Agents, the Issuing Banks and
the Swingline Lenders) if (i) by the terms of such agreement the Commitments of each Lender not
consenting to the amendment provided for therein shall terminate upon the effectiveness of such
amendment and (ii) at the time such amendment becomes effective, each Lender not consenting thereto
receives payment in full of the principal of and interest accrued on each Loan made and B/A
accepted by it and all other amounts owing to it or accrued for its account under this Agreement.



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



(b) The Company shall indemnify each Agent, Arranger, Issuing Bank and Lender, and each
Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”)
against, and hold each Indemnitee harmless from, any and all losses, claims, damages, penalties,
liabilities and related expenses, including the reasonable fees, charges and disbursements of any
outside counsel for any Indemnitee, incurred by or asserted against any Indemnitee arising out of,
in connection with, or as a result of (i) the structuring, arrangement and syndication of the
credit facilities provided for herein, (ii) the execution or delivery of any Loan Document or any
other agreement or instrument contemplated hereby, the performance by the parties to the Loan
Documents of their respective obligations thereunder or the consummation of


 


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the Transactions or any other transactions contemplated hereby, (iii) any Loan, B/A or Letter of
Credit or the use of the proceeds therefrom (including any refusal by an Issuing Bank to honor a
demand for payment under a Letter of Credit if the documents presented in connection with such
demand do not strictly comply with the terms of such Letter of Credit), (iv) any Environmental
Liability related in any way to the Company or any of the Subsidiaries or (v) any actual or
prospective claim, litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether initiated by any
Indemnitee or a third party or whether any Indemnitee is a party thereto; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims,
damages, penalties, liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from (i) the gross negligence or
wilful misconduct of such Indemnitee or (ii) the breach by such Indemnitee of its obligations under
the Loan Documents.



(c) To the extent that the Company fails to pay any amount required to be paid by it to any
Agent or Issuing Bank or Swingline Lender under paragraph (a) or (b) of this Section, each Lender
severally agrees to pay to such Agent, Issuing Bank or Swingline Lender, 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 such Agent, Issuing Bank or Swingline Lender in its capacity as
such. For purposes hereof, a Lender’s “pro rata share” shall be determined based
upon its share of the sum of the aggregate Revolving Credit Exposures and unused Commitments at the
time.



(d) To the extent permitted by applicable law, the Borrowers shall not assert, and hereby
waive, any claim against 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 or any agreement or instrument contemplated
hereby, the Transactions, any Loan, B/A or Letter of Credit or the use of the proceeds thereof.



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



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



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


 


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(A) the Company; provided that no consent of the Company shall be required for an
assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default
has occurred and is continuing, any other assignee;




(B) the Administrative Agent; and




(C) each Issuing Bank.




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




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




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




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




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




For purposes of this Section, the term “Approved Fund” has the following meaning:



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



(c) Subject to acceptance and recording thereof pursuant to paragraph (e) of this Section,
from and after the effective date specified in each Assignment and Assumption the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment
and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption,
be released from its obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue


 


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to be entitled to the benefits of Sections 2.15, 2.16, 2.17 and 11.03). Any assignment or transfer
by a Lender of rights or obligations under this Agreement that does not comply with this paragraph
shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with paragraph (f) of this Section.



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



(e) Upon its receipt of a duly completed Assignment and Assumption executed by an assigning
Lender and an assignee, the assignee’s completed Administrative Questionnaire (unless the assignee
shall already be a Lender hereunder), the processing and recordation fee referred to in
paragraph (b) of this Section and any written consent to such assignment required by paragraph (b)
of this Section, the Administrative Agent shall accept such Assignment and Assumption and record
the information contained therein in the Register. No assignment shall be effective for purposes of
this Agreement unless it has been recorded in the Register as provided in this paragraph. Following
the effectiveness of any assignment, the Administrative Agent shall, if so requested, cause
promissory notes reflecting such assignment to be issued to the Assignee and, if applicable, to the
Assignor, upon cancellation of any existing promissory notes originally issued to the Assignor.



(f) Any Lender may, without the consent of the Company, the Administrative Agent, the Issuing
Banks or any other Lender, sell participations to one or more banks or other entities (a
“Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement
(including all or a portion of its Commitments and its Loans and other extensions of credit
hereunder); provided that (i) such Lender’s obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Borrowers, the Agents, the Issuing Banks and the
other Lenders shall continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain the sole right to
enforce the Loan Documents and to approve any amendment, modification or waiver of any provision of
the Loan Documents; provided that such agreement or instrument may provide that such Lender will
not, without the consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 11.02(b) that affects such Participant. Subject to
paragraph (g) of this Section, each Borrower agrees that each Participant shall be entitled to the
benefits of Sections 2.15, 2.16 and 2.17 to the same extent as if it were a Lender and had acquired
its interest by assignment pursuant to paragraph (b) of this Section. To the extent permitted by
law, each Participant also shall be entitled to the benefits of Section 11.08 as though it were a
Lender, provided such Participant agrees to be subject to Section 2.18(c) as though it were a
Lender.



(g) A Participant shall not be entitled to receive any greater payment under Section 2.15 or
2.17 than the applicable Lender would have been entitled to receive with respect to


 


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the participation sold to such Participant, unless the sale of the participation to such
Participant is made with the Company’s prior written consent. A Participant shall not be entitled
to the benefits of Section 2.17 unless the Company is notified of the participation sold to such
Participant and such Participant agrees, for the benefit of the Borrowers, to comply with
Section 2.17(e) as though it were a Lender.



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



(i) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Bank”)
may grant to a special purpose funding vehicle (an “SPC”) of such Granting Bank, identified as such
in writing from time to time by the Granting Bank to the Administrative Agent and the Company, the
option to provide to any Borrower all or any part of any Loan that such Granting Bank would
otherwise be obligated to make to such Borrower pursuant to Section 2.01, provided that (i) nothing
herein shall constitute a commitment to make any Loan by any SPC, (ii) if an SPC elects not to
exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Bank
shall be obligated to make such Loan pursuant to the terms hereof, (iii) all amounts payable by any
Borrower to any SPC hereunder in respect of any Loan and the applicability of the cost protection
provisions contained in Section 2.15, 2.16 and 2.17 shall be determined as if the Granting Bank had
made such Loan and (iv) any notices given by the Agents, the Borrowers and the other Lenders with
respect to any Loan provided by an SPC may be given to the Granting Bank and the Granting Bank
shall have the authority to act on behalf of the SPC with respect to such Loans and/or notices. The
making of Loans and other extensions of credit by an SPC hereunder shall be deemed to utilize the
Commitments of the Granting Bank to the same extent, and as if, such Loans and other extensions of
credit were made by the Granting Bank. Each party hereto hereby agrees that no SPC shall be liable
for any payment under this Agreement for which a Lender would otherwise be liable, for so long as,
and to the extent, the related Granting Bank makes such payment. In furtherance of the foregoing,
each party hereto hereby agrees that, prior to the date that is one year and one day after the
payment in full of all outstanding senior indebtedness of any SPC, it will not institute against,
or join any other person in instituting against, such SPC any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or similar proceedings under the laws of the
United States or any State thereof. In addition, notwithstanding anything to the contrary contained
in this Section, any SPC may assign all or a portion of its interests in any Loans and other
extensions of credit to its Granting Bank or to any financial institutions providing liquidity
and/or credit facilities to or for the account of such SPC to fund the Loans and other extensions
of credit made by such SPC or to support the securities (if any) issued by such SPC to fund such
Loans and other extensions of credit.



SECTION 11.05. Survival. All covenants, agreements, representations and warranties
made by the Loan Parties in the Loan Documents and in the certificates or other instruments
delivered in connection with or pursuant to this Agreement or any other Loan Document shall be
considered to have been relied upon by the other parties hereto and shall survive the execution and
delivery of the Loan Documents and the making of any Loans, the acceptance and purchase of any B/As
and the issuance of any Letters of Credit, regardless of any investigation made by any such other
party or on its behalf and notwithstanding that any Agent, Issuing Bank or Lender may have had
notice or knowledge of any Default or incorrect representation or warranty at


 


85









 





the time any credit is extended hereunder, and shall continue in full force and effect as long as
the principal of or any accrued interest on any Loan or any fee or any other amount payable under
this Agreement is outstanding and unpaid or any Letter of Credit is outstanding and so long as the
Commitments have not expired or terminated. The provisions of Sections 2.15, 2.16, 2.17 and 11.03
and Article VIII shall survive and remain in full force and effect regardless of the consummation
of the transactions contemplated hereby, the repayment of the Loans and B/As, the expiration or
termination of the Letters of Credit and the Commitments or the termination of this Agreement or
any provision hereof.



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



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



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



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



(b) Each Borrower hereby irrevocably and unconditionally submits, for itself and its property,
to the nonexclusive jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or relating to any
Loan Document, or for recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent permitted by


 


86









 





law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement or any other Loan
Document shall affect any right that any Agent, Issuing Bank or Lender may otherwise have to bring
any action or proceeding relating to this Agreement or any other Loan Document against any Borrower
or its properties in the courts of any jurisdiction.



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



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



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



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



SECTION 11.12. Confidentiality. Each Agent, Issuing Bank and Lender agrees to maintain
the confidentiality of the Information (as defined below), and will not use such confidential
Information for any purpose or in any manner except in connection with this Agreement, except that
Information may be disclosed (a) to its and its Affiliates’ directors, officers, employees and
agents, including accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the extent requested by
any governmental, supervisory or regulatory authority (it being understood that it will to the
extent reasonably practicable provide the Company with an opportunity to request confidential
treatment from such authority), (c) to the extent required by applicable laws or regulations or by
any subpoena or similar legal process, (d) to any other party to this Agreement, (e) in connection
with the exercise of any remedies hereunder or any suit, action or proceeding relating to this
Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder,
(f) subject to an agreement containing provisions substantially the same as those of this


 


87









 





Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant
in, any of its rights or obligations under this Agreement or (ii) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating to the Company or any
Subsidiary and its obligations, (g) with the written consent of the Company or (h) to the extent
such Information (i) becomes publicly available other than as a result of a breach of this Section
or any other confidentiality agreement to which it is party with the Company or any Subsidiary or
(ii) becomes available to such Agent, Issuing Bank or Lender on a nonconfidential basis from a
source other than the Company. For the purposes of this Section, “Information” means all
confidential information received from the Company relating to the Company or its businesses, other
than any such information that is available to any Agent, Issuing Bank or Lender on a
nonconfidential basis prior to disclosure by the Company. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own confidential
information.



Each Lender acknowledges that Information furnished to it pursuant to this Agreement may
include material non-public information concerning the Borrower and its Related Parties or its or
their securities, and confirms that it has developed compliance procedures regarding the use of
material non-public information and that it will handle such material non-public information in
accordance with the procedures and applicable law, including Federal, State and foreign securities
laws.



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



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



SECTION 11.14. Releases of Guarantors. (a) Notwithstanding any contrary provision
herein or in any other Loan Document, if the Company shall request the release under the Guarantee
Agreement of any Guarantor that shall have been sold in or disposed of (or will, simultaneously
with such release, be sold or disposed of) to a Person or Persons (other than the Company and the
Subsidiaries) pursuant to the Pharmerica Spin-Off or any other transaction


 


88









 





permitted hereby and shall deliver to the Administrative Agent a certificate to the effect that
such sale complied or will comply with the terms of this Agreement, the Administrative Agent, if
satisfied in its reasonable judgment that the applicable certificate is correct, shall, without the
consent of any Lender, execute and deliver all such releases and other instruments, and take all
such further actions, as shall be necessary to effect the release of such Guarantor.



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



SECTION 11.15. U.S.A. PATRIOT Act. Each Lender hereby notifies the Borrowers 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 Borrowers, which information includes the names and addresses of the Borrowers and
other information that will allow such Lender to identify the Borrowers in accordance with the Act.



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



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



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



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


 


89









 





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



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



SECTION 11.20. Waiver of Notice Period in connection with Termination of the Existing US
Credit Agreement. Each Lender that is a party to the Existing US Credit Agreement hereby waives
the prior notice required for the termination of the commitments under the Existing US Credit
Agreement.


 


90









 




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



	 	 	 	 	 	 	 	 	 
	 	 	AMERISOURCEBERGEN CORPORATION,
	 
	 	 	 	 	 	 	 	 
	 	 	by	 	/s/ J.F. Quinn	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	J.F. Quinn	 	 
	 

	 	 	 	Title:
	 	Vice President & Corporate Treasurer	 	 






	 	 	 	 	 	 	 	 	 
	 	 	AMERISOURCEBERGEN CANADA CORPORATION,
	 
	 	 	 	 	 	 	 	 
	 	 	by	 	/s/ J.F. Quinn	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	J.F. Quinn	 	 
	 

	 	 	 	Title:
	 	Vice President & Corporate Treasurer	 	 






	 	 	 	 	 	 	 	 	 
	 	 	BRECON HOLDINGS LIMITED,
	 
	 	 	 	 	 	 	 	 
	 	 	by	 	/s/ J.F. Quinn	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	J.F. Quinn	 	 
	 

	 	 	 	Title:
	 	Vice President & Corporate Treasurer	 	 






	 	 	 	 	 	 	 	 	 
	 	 	JPMORGAN CHASE BANK, N.A.,
individually and as Administrative
Agent, Issuing Bank and Swingline Lender,	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	by	 	/s/ Dawn Lee Lum	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Dawn Lee Lum
	 	 
	 

	 	 	 	Title:
	 	Vice President	 	 






	 	 	 	 	 	 	 	 	 
	 	 	J. P. MORGAN EUROPE LIMITED,
individually and as London Agent,	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	by	 	/s/ Stephen Clarke	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Stephen Clarke	 	 
	 

	 	 	 	Title:
	 	Vice President
	 	 





 


 









 





	 	 	 	 	 	 	 	 	 
	 	 	THE BANK OF NOVA SCOTIA,
individually and as Canadian Agent,
Swingline Lender and Issuing Bank,	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	by	 	/s/ John Hun	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	John Hun	 	 
	 

	 	 	 	Title:
	 	Director
	 	 





 


 









 





Lender Signature Page to

the AmerisourceBergen Corporation

Credit Agreement




	 	 	 	 	 	 	 
	Name of Institution:
	 
	 	 	 	 	 	 
	JPMorgan Chase Bank, N.A., Toronto Branch	 	 
	 	 	 
	 
	 	 	 	 	 	 
	by	 	/s/ Christine Chan	 	 
	 	 	 	 	 
	 

	 	Name:
	 	Christine Chan	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	Name of Institution:	 	 
	 
	 	 	 	 	 	 
	Bank of America, N.A.	 	 
	 	 	 
	 
	 	 	 	 	 	 
	by	 	/s/ Richard C. Harlison	 	 
	 	 	 	 	 
	 

	 	Name:
	 	Richard C. Harlison	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	Name of Institution:	 	 
	 
	 	 	 	 	 	 
	Bank of America, N.A., Canada Branch	 	 
	 	 	 
	 
	 	 	 	 	 	 
	by	 	/s/ Nelson Lam	 	 
	 	 	 	 	 
	 

	 	Name:
	 	Nelson Lam	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	Name of Institution:	 	 
	 
	 	 	 	 	 	 
	The Bank of Tokyo-Mitsubishi UFJ, Ltd., New York Branch	 	 
	 	 	 
	 
	 	 	 	 	 	 
	by	 	/s/ Lillian Kim	 	 
	 	 	 	 	 
	 

	 	Name:
	 	Lillian Kim	 	 
	 

	 	Title:
	 	Authorized Signatory	 	 





 


 









 





Lender Signature Page to

the AmerisourceBergen Corporation

Credit Agreement




	 	 	 	 	 	 	 
	Name of Institution:	 	 
	 
	 	 	 	 	 	 
	Citibank, N.A.	 	 
	 
	 	 	 	 	 	 
	by	 	/s/ Juan Carlos Lorenzo	 	 
	 	 	 	 	 
	 

	 	Name:
	 	Juan Carlos Lorenzo	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	Name of Institution:	 	 
	 
	 	 	 	 	 	 
	Citibank, N.A., Canadian branch	 	 
	 
	 	 	 	 	 	 
	by	 	/s/ Niyousha Zarinpour	 	 
	 	 	 	 	 
	 

	 	Name:
	 	Niyousha Zarinpour	 	 
	 

	 	Title:
	 	Authorized Signer	 	 
	 
	 	 	 	 	 	 
	Name of Institution:	 	 
	 
	 	 	 	 	 	 
	Citibank, N.A., London branch	 	 
	 
	 	 	 	 	 	 
	by	 	/s/ Mark Chabrel	 	 
	 	 	 	 	 
	 

	 	Name:
	 	Mark Chabrel	 	 
	 

	 	Title:
	 	Director	 	 





 


 









 





Lender Signature Page to

the AmerisourceBergen Corporation

Credit Agreement




	 	 	 	 	 	 	 
	Name of Institution:	 	 
	 
	 	 	 	 	 	 
	Credit Suisse, Cayman Islands Branch	 	 
	 
	 	 	 	 	 	 
	by	 	/s/ Brian T. Caldwell	 	 
	 	 	 	 	 
	 

	 	Name:
	 	Brian T. Caldwell	 	 
	 

	 	Title:
	 	Director	 	 
	 
	 	 	 	 	 	 
	For any Lender requiring a second signature line:
	 
	 	 	 	 	 	 
	by	 	/s/ Karim Blasetti	 	 
	 	 	 	 	 
	 

	 	Name:
	 	Karim Blasetti	 	 
	 

	 	Title:
	 	Associate	 	 
	 
	 	 	 	 	 	 
	Name of Institution:	 	 
	 
	 	 	 	 	 	 
	Credit Suisse, Toronto Branch	 	 
	 
	 	 	 	 	 	 
	by	 	/s/ Alain Daoust	 	 
	 	 	 	 	 
	 

	 	Name:
	 	Alain Daoust	 	 
	 

	 	Title:
	 	Director	 	 
	 
	 	 	 	 	 	 
	For any Lender requiring a second signature line:	 	 
	 
	 	 	 	 	 	 
	by	 	/s/ Steve W. Fuh	 	 
	 	 	 	 	 
	 

	 	Name:
	 	Steve W. Fuh	 	 
	 

	 	Title:
	 	Vice-President	 	 





 


 









 





Lender Signature Page to

the AmerisourceBergen Corporation

Credit Agreement




	 	 	 	 	 	 	 
	Name of Institution:
	 
	 	 	 	 	 	 
	Deutsche Bank AG, New York Branch	 	 
	 
	 	 	 	 	 	 
	by	 	/s/ Frederick Laird	 	 
	 	 	 	 	 
	 

	 	Name:
	 	Frederick Laird	 	 
	 

	 	Title:
	 	Managing Director	 	 
	 
	 	 	 	 	 	 
	For any Lender requiring a second signature line:	 	 
	 
	 	 	 	 	 	 
	by	 	/s/ Vincent Wong	 	 
	 	 	 	 	 
	 

	 	Name:
	 	Vincent Wong	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	Name of Institution:	 	 
	 
	 	 	 	 	 	 
	Fifth Third Bank	 	 
	 
	 	 	 	 	 	 
	by	 	/s/ Michael R. Zaksheske	 	 
	 	 	 	 	 
	 

	 	Name:
	 	Michael R. Zaksheske	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	Name of Institution:	 	 
	 
	 	 	 	 	 	 
	LaSalle Bank National Association	 	 
	 
	 	 	 	 	 	 
	by	 	/s/ Nick Lotz	 	 
	 	 	 	 	 
	 

	 	Name:
	 	Nick Lotz	 	 
	 

	 	Title:
	 	Assistant Vice President	 	 





 


 









 





Lender Signature Page to

the AmerisourceBergen Corporation

Credit Agreement




	 	 	 	 	 	 	 
	Name of Institution:	 	 
	 
	 	 	 	 	 	 
	LaSalle Commercial Lending	 	 
	A division of ABN Amro Bank N.V.	 	 
	 
	 	 	 	 	 	 
	by	 	/s/ L. Geoffrey Morphy	 	 
	 	 	 	 	 
	 

	 	Name:
	 	L. Geoffrey Morphy	 	 
	 

	 	Title:
	 	First Vice President	 	 
	 
	 	 	 	 	 	 
	For any Lender requiring a second signature line:	 	 
	 
	 	 	 	 	 	 
	by	 	/s/ J. Wright	 	 
	 	 	 	 	 
	 

	 	Name:
	 	J. Wright	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	Name of Institution:	 	 
	 
	 	 	 	 	 	 
	Bank of Nova Scotia	 	 
	 
	 	 	 	 	 	 
	by	 	/s/ Anastasia Kotsidis	 	 
	 	 	 	 	 
	 

	 	Name:
	 	Anastasia Kotsidis	 	 
	 

	 	Title:
	 	Director	 	 
	 
	 	 	 	 	 	 
	For any Lender requiring a second signature line:	 	 
	 
	 	 	 	 	 	 
	by	 	/s/ Gitesh Goyal	 	 
	 	 	 	 	 
	 

	 	Name:
	 	Gitesh Goyal	 	 
	 

	 	Title:
	 	Associate Director	 	 





 


 









 





Lender Signature Page to

the AmerisourceBergen Corporation

Credit Agreement




	 	 	 	 	 	 	 
	Name of Institution:
	 
	 	 	 	 	 	 
	The Bank of Nova Scotia	 	 
	 
	 	 	 	 	 	 
	by	 	/s/ V. Gibson	 	 
	 	 	 	 	 
	 

	 	Name:
	 	V. Gibson	 	 
	 

	 	Title:
	 	Assistant Agent	 	 
	 
	 	 	 	 	 	 
	Name of Institution:	 	 
	 
	 	 	 	 	 	 
	Sumitomo Mitsui Banking Corporation	 	 
	 
	 	 	 	 	 	 
	by	 	/s/ Shigeru Tsuru	 	 
	 	 	 	 	 
	 

	 	Name:
	 	Shigeru Tsuru	 	 
	 

	 	Title:
	 	Joint General Manager	 	 
	 
	 	 	 	 	 	 
	Name of Institution:	 	 
	 
	 	 	 	 	 	 
	Sumitomo Mitsui Banking Corporation of Canada	 	 
	 
	 	 	 	 	 	 
	by	 	/s/ Elwood Langley	 	 
	 	 	 	 	 
	 

	 	Name:
	 	Elwood Langley	 	 
	 

	 	Title:
	 	Vice President	 	 





 


 









 





Lender Signature Page to

the AmerisourceBergen Corporation

Credit Agreement




	 	 	 	 	 	 	 
	Name of Institution:
	 
	 	 	 	 	 	 
	Sumitomo Mitsui Finance Dublin Limited	 	 
	 
	 	 	 	 	 	 
	by	 	/s/ Timothy O’Donovan	 	 
	 	 	 	 	 
	 

	 	Name:
	 	Timothy O’Donovan	 	 
	 

	 	Title:
	 	Managing Director	 	 
	 
	 	 	 	 	 	 
	For any Lender requiring a second signature line:	 	 
	 
	 	 	 	 	 	 
	by	 	/s/ Ciaran Bolger	 	 
	 	 	 	 	 
	 

	 	Name:
	 	Ciaran Bolger	 	 
	 

	 	Title:
	 	Manager — Benefits Promotion	 	 
	 
	 	 	 	 	 	 
	Name of Institution:	 	 
	 
	 	 	 	 	 	 
	Barclays Bank PLC	 	 
	 
	 	 	 	 	 	 
	by	 	/s/ Nicholas Bell	 	 
	 	 	 	 	 
	 

	 	Name:
	 	Nicholas Bell	 	 
	 

	 	Title:
	 	Director	 	 
	 
	 	 	 	 	 	 
	Name of Institution:	 	 
	 
	 	 	 	 	 	 
	Lehman Commercial Paper Inc.	 	 
	 
	 	 	 	 	 	 
	by	 	/s/ Janine M. Shugan	 	 
	 	 	 	 	 
	 

	 	Name:
	 	Janine M. Shugan	 	 
	 

	 	Title:
	 	Authorized Signatory	 	 





 


 









 





Lender Signature Page to

the AmerisourceBergen Corporation

Credit Agreement




	 	 	 	 	 	 	 
	Name of Institution:
	 
	 	 	 	 	 	 
	The Bank of New York	 	 
	 
	 	 	 	 	 	 
	by	 	/s/ Robert J. Joyce	 	 
	 	 	 	 	 
	 

	 	Name:
	 	Robert J. Joyce	 	 
	 

	 	Title:
	 	Managing Director and Division Head
	 	 
	 
	 	 	 	 	 	 
	Name of Institution:	 	 
	 
	 	 	 	 	 	 
	Mizuho Corporate Bank, Ltd.	 	 
	 
	 	 	 	 	 	 
	by	 	/s/ Raymond Ventura	 	 
	 	 	 	 	 
	 

	 	Name:
	 	Raymond Ventura	 	 
	 

	 	Title:
	 	Deputy General Manager	 	 
	 
	 	 	 	 	 	 
	Name of Institution:	 	 
	 
	 	 	 	 	 	 
	Wells Fargo Bank, N.A.	 	 
	 
	 	 	 	 	 	 
	by	 	/s/ Don Schwartz	 	 
	 	 	 	 	 
	 

	 	Name:
	 	Don Schwartz	 	 
	 

	 	Title:
	 	Senior Vice President	 	 





 


 









 





Lender Signature Page to

the AmerisourceBergen Corporation

Credit Agreement




	 	 	 	 	 	 	 
	Name of Institution:
	 
	 	 	 	 	 	 
	William Street Commitment Corporation	 	 
	(Recourse only to assets of William Street Commitment Corporation)	 	 
	 
	 	 	 	 	 	 
	by	 	/s/ Mark Walton	 	 
	 	 	 	 	 
	 

	 	Name:
	 	Mark Walton	 	 
	 

	 	Title:
	 	Assistant Vice President	 	 
	 
	 	 	 	 	 	 
	Name of Institution:	 	 
	 
	 	 	 	 	 	 
	PNC Bank, National Association	 	 
	 
	 	 	 	 	 	 
	by	 	/s/ Denise D. Killen	 	 
	 	 	 	 	 
	 

	 	Name:
	 	Denise D. Killen	 	 
	 

	 	Title:
	 	Senior Vice President	 	 
	 
	 	 	 	 	 	 
	Name of Institution:	 	 
	 
	 	 	 	 	 	 
	KeyBank National Association	 	 
	 
	 	 	 	 	 	 
	by	 	/s/ J.T. Taylor	 	 
	 	 	 	 	 
	 

	 	Name:
	 	J.T. Taylor	 	 
	 

	 	Title:
	 	Senior Vice President	 	 






 


 









 





Lender Signature Page to

the AmerisourceBergen Corporation

Credit Agreement




	 	 	 	 	 	 	 
	Name of Institution:
	 
	 	 	 	 	 	 
	U.S. Bank, N.A.	 	 
	 
	 	 	 	 	 	 
	by	 	/s/ Patrick H. McGraw, Jr.	 	 
	 	 	 
	 	 
	 

	 	Name:	 	Patrick H. McGraw, Jr.	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	Name of Institution:	 	 
	 
	 	 	 	 	 	 
	Union Bank of California, N.A.	 	 
	 
	 	 	 	 	 	 
	by	 	/s/ Michael Tschida	 	 
	 	 	 	 	 
	 

	 	Name:
	 	Michael Tschida	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	Name of Institution:	 	 
	 
	 	 	 	 	 	 
	Wachovia Bank, National Association	 	 
	 
	 	 	 	 	 	 
	by	 	/s/ Kirk Tesch	 	 
	 	 	 	 	 
	 

	 	Name:
	 	Kirk Tesch	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	Name of Institution:	 	 
	 
	 	 	 	 	 	 
	Wachovia Capital Finance Corporation (Canada)	 	 
	 
	 	 	 	 	 	 
	by	 	/s/ Enza Agosta	 	 
	 	 	 	 	 
	 

	 	Name:
	 	Enza Agosta	 	 
	 

	 	Title:
	 	Vice President	 	 







 


 












 





Schedule 1.01




Applicable Funding Account 






	 	 	 
	BANK NAME:

	 	J.P. Morgan Chase
	BANK ADDRESS:

	 	New York, NY
	BANK ABA #

	 	021000021
	ACCOUNT NAME:

	 	AmerisourceBergen Corporation
	ACCOUNT
NUMBER:

	 	XXXXXXXXX
	REFERENCE:

	 	Attention: Treasury
	 
	 	 
	BANK NAME:

	 	Royal Bank of Canada
	BANK ADDRESS:

	 	65 Princess Street
	 

	 	Kingston, Ontario
	 

	 	Canada K7L 1A6
	TRANSIT
#:

	 	02382
	ACCOUNT NAME:

	 	AmerisourceBergen Canada Corporation
	ACCOUNT NUMBER:

	 	XXX-XXXX
	DESTINATION
#:

	 	003
	SWIFT #:

	 	ROYCCAT2
	 
	 	 
	BANK NAME:

	 	The Toronto Dominion Bank
	BANK ADDRESS:

	 	7085 Woodbine Avenue
	 

	 	Markham, Ontario
	 

	 	Canada L3R 1A3
	TRANSIT #:

	 	12772
	ACCOUNT NAME:

	 	Rep-Pharm Inc.
	ACCOUNT NUMBER:

	 	XXX-XXXXXXX
	DESTINATION
#:

	 	004
	SWIFT #:

	 	TDOMCATTTOR
	 
	 	 
	BANK NAME:

	 	Barclays Bank PLC
	BANK ADDRESS:

	 	Hereford
	 

	 	HR1 2XX
	SORT CODE

	 	20-39-64
	ACCOUNT NAME:

	 	Brecon Holdings Limited
	ACCOUNT NUMBER:

	 	XXXXXXXX





 


 









 







Schedule 2.01




Commitments 




Global Tranche




	 	 	 	 	 
	Lender	 	Commitment	 
	JPMorgan Chase Bank, N.A.
	 	$	42,500,000	 
	Bank of America, N.A.
	 	$	42,500,000	 
	Wachovia Bank, National Association
	 	$	40,000,000	 
	The Bank of Tokyo-Mitsubishi UFJ, Ltd.
	 	$	25,000,000	 
	Citibank, N.A.
	 	$	20,000,000	 
	Credit Suisse, Cayman Islands Branch
	 	$	20,000,000	 
	Deutsche Bank AG New York Branch
	 	$	20,000,000	 
	Fifth Third Bank
	 	$	15,000,000	 
	LaSalle Bank National Association
	 	$	15,000,000	 
	The Bank of Nova Scotia
	 	$	15,000,000	 
	Sumitomo Mitsui Banking Corporation
	 	$	5,000,000	 
	 
	 	 	 
	Total
	 	$	260,000,000	 
	 
	 	 	 






US/UK Tranche




	 	 	 	 	 
	Lender	 	Commitment	 
	Barclays Bank PLC
	 	$	35,000,000	 
	Lehman Brothers Commercial Bank
	 	$	20,000,000	 
	The Bank of New York
	 	$	15,000,000	 
	 
	 	 	 
	Total
	 	$	70,000,000	 
	 
	 	 	 






US/Canadian Tranche




	 	 	 	 	 
	Lender	 	Commitment	 
	J.P. Morgan Chase Bank, N.A.
	 	$	25,000,000	 
	Bank of America, N.A.
	 	$	25,000,000	 
	The Bank of Nova Scotia
	 	$	40,000,000	 
	Citibank, N.A.
	 	$	15,000,000	 
	Credit Suisse, Cayman Islands Branch
	 	$	15,000,000	 
	Deutsche Bank AG New York Branch
	 	$	15,000,000	 
	Mizuho Corporate Bank, Ltd.
	 	$	15,000,000	 
	The Bank of Tokyo-Mitsubishi UFJ, Ltd.
	 	$	15,000,000	 
	Wachovia Bank, National Association
	 	$	15,000,000	 
	Sumitomo Mitsui Banking Corporation
	 	$	10,000,000	 
	Union Bank of California, N.A.
	 	$	10,000,000	 
	 
	 	 	 
	Total
	 	$	200,000,000	 
	 
	 	 	 





 


 









 





US Tranche




	 	 	 	 	 
	Lender	 	Commitment	 
	Wells Fargo Bank, N.A.
	 	$	50,000,000	 
	Lehman Brothers Commercial Bank
	 	$	35,000,000	 
	PNC Bank, National Association
	 	$	35,000,000	 
	William Street Commitment Corporation
	 	$	35,000,000	 
	Mizuho Corporate Bank, Ltd.
	 	$	20,000,000	 
	KeyBank National Association
	 	$	15,000,000	 
	US Bank, N.A.
	 	$	15,000,000	 
	The Bank of Tokyo — Mitsubishi UFJ, Ltd.
	 	$	10,000,000	 
	Union Bank of California, N.A.
	 	$	5,000,000	 
	 
	 	 	 
	Total
	 	$	220,000,000	 
	 
	 	 	 





 


2









 





Schedule 2.05




Existing Letters of Credit 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	Expiry	 	 	 
	L/C
Number	 	Beneficiary	 	Date	 	Outstanding	 
	 
	 	Letter of Credit-Hartford	 	03/22/07	 	$	6,500,000	 
	 
	 	Letter of Credit-Hartford	 	03/22/07	 	$	6,500,000	 
	 
	 	Letter of Credit-Travelers	 	05/05/07	 	$	500,000	 
	 
	 	Letter of Credit-Liberty Mutual	 	05/05/07	 	$	536,000	 
	 
	 	Letter of Credit-Royal Indemnity	 	09/24/06	 	$	1,000,000	 
	 
	 	Letter of Credit-Royal Bank of Canada	 	03/31/07	 	$	1,049,203	 
	 
	 	Letter of Credit-St. Paul Fire and Marine	 	05/01/07	 	$	400,000	 
	 
	 	 	 	 	 	 	 	 
	 
	 	Letter of Credit-Columbia Casualty Co.	 	05/01/07	 	$	750,000	 
	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	$	10,735,203	 
	 
	 	 	 	 	 	 	 






 


 









 








Schedule 3.12




Subsidiaries 





ABSG Cap, Inc.*

Ambulatory Pharmaceutical Services, Inc.

AmerisourceBergen Canada Corporation*

AmerisourceBergen Drug Corporation

AmerisourceBergen Holding Corporation

AmerisourceBergen Services Corporation

AmerisourceBergen Specialty Group Canada Acquisition Corporation*

AmerisourceBergen Specialty Group Canada Corporation*

AmeriSource Health Services Corporation

AmeriSource Heritage Corporation

AmeriSource Receivables Financial Corporation*

Anderson Packaging, Inc.

APS Enterprises Holding Company

ASD Specialty Healthcare, Inc.

AutoMed Technologies, Inc.

AutoMed Technologies (Canada) Inc.*

Brecon Holdings Limited*

Brecon Pharmaceuticals Holdings Limited*

Brecon Pharmaceuticals Limited*

Brownstone Pharmacy, Inc.

Capstone Med, Inc.

Capstone Pharmacy of Delaware, Inc.

Century Advertising, Inc.*

Chapin Drug Company*

CliniCare Concepts, Inc.

Compuscript, Inc.

Computran Systems, Inc.

Dunnington Rx Services of Massachusetts, Inc.

Dunnington Rx Services of Rhode Island, Inc.

Express Pharmacy Services, Inc.

Family Center Pharmacy, Inc.

Goot Nursing Home Pharmacy, Inc.

Health Services Capital Corporation

I.G.G. of America, Inc.

IHS Acquisition XXX, Inc.

Imedex, Inc.

Insta-Care Pharmacy Services Corporation

Integrated Commercialization Solutions, Inc.

International Physician Networks, L.L.C.

J.M. Blanco, Inc.*

Leading Educational Research Network, LLC

Managed Care Network, Inc.

Medical Initiatives, Inc.

Network for Medical Communication & Research Analytics, LLC

New Jersey Medical Corporation*

NMCR Holdings, Inc.

Pharm Plus Acquisition, Inc.

Pharmacy Corporation of America

Pharmacy Corporation of America-Massachusetts, Inc.

Pharmacy Healthcare Solutions, Ltd.

Pharmacy Review Services, Inc.

PharMerica, Inc.

PharMerica Drug Systems, Inc.

PharMerica Technology Solutions, LLC

PMSI, Inc.

PMSI MSA Services, Inc.

Premier Pharmacy, Inc.

Reimbursement Education Network, LLC

Rombro’s Drug Center, Inc.

Solana Beach, Inc.

Southwest Pharmacies, Inc.

Specialty Pharmacy, Inc.

Specialty Pharmacy of California, Inc.

Taylor & Manno Asset Recovery, Inc.

Telepharmacy Solutions, Inc.

The Lash Group, Inc.

Tmesys(TM), Inc.

US Bioservices Corporation

Value Apothecaries, Inc.




All the subsidiaries listed above are owned directly or indirectly 100% by the Borrower.





	 	 	 
	*	 	Not a Designated Subsidiary



 


 









 







Schedule 3.13




Insurance 




 


 









 
















Schedule of Insurance




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	GL/Products/Auto/Med-	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Ma/Excess	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	General Liability
	 	St. Paul Fire &

Marine Ins. Co.	 	TEO6100918	 	5/1/06 – 07	 	$997,873	 	$5MM General Total Limit	 	$3.5MM Basket Aggregate (GL, Prod, Auto, E&O)	 	Occurrence	 	Marsh	 	 
	 
	 	 	 	 	 	 	 	 	 	$4MM Products/Comp. Ops.	 	$1MM SIR Each Event	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	$4MM Personal Injury	 	$1MM Ded Each Person	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	$4MM Advertising Injury	 	$1MM Ded Each Person	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	$4MM Each Event	 	$1MM Ded Each Event	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	$1MM Premises Damages	 	$1MM Ded Each Event	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	$10K Medical Expenses	 	$10,000 Ded Each Person	 	 	 	 	 	 
	 
	Employee Benefits Liability
	 	St. Paul Fire &	 	TEO6100918	 	5/1/06 – 07	 	Included	 	$3MM Total	 	$1,000 Ded Each Wrongful Act	 	Claims Made	 	Marsh	 	 
	 
	 	Marine Ins. Co.	 	 	 	 	 	 	 	$1MM Each Wrongful Act	 	 	 	 	 	 	 	 
	 
	Errors & Omissions
	 	St. Paul Fire &	 	TEO6100918	 	5/1/06 – 07	 	$276,902	 	$2MM General Total	 	$250,000 Ded Each Error	 	Claims Made	 	Marsh	 	 
	 
	 	Marine Ins. Co.	 	 	 	 	 	 	 	$1MM Each Error	 	 	 	 	 	 	 	 
	 
	Automobile (AOS)
	 	St. Paul Fire &	 	TEO6100918	 	5/1/06 – 07	 	$191,043	 	$1MM Combined Single Limit	 	$100,000 Ded Each Accident	 	Occurrence	 	Marsh	 	 
	 
	 	Marine Ins. Co.	 	 	 	 	 	 	 	$500K Garagekeepers	 	$1,000 Ded Comp & Coll.	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	$1,000 Ded GK Comp & Coll.	 	 	 	 	 	 
	 
	Automobile (VA)
	 	St. Paul Fire &	 	TEO6101590	 	5/1/06 – 07	 	Included	 	$1MM Combined Singled Limit	 	$100,000 Ded Each Accident	 	Occurrence	 	Marsh	 	 
	 
	 	Marine Ins. Co.	 	 	 	 	 	 	 	 	 	$1,000 Ded Comp & Coll.	 	 	 	 	 	 
	 
	Automobile (MA)
	 	St. Paul Fire & Marine Ins. Co.	 	MA06100016	 	5/1/06 – 07	 	Included	 	$1MM Combined Single Limit	 	$100,000 Ded Each Accident

$1,000 Ded Comb & Coll.	 	Occurrence	 	Marsh	 	 
	 
	International General Liability
	 	St. Paul Fire &
	 	TEO6101122	 	5/1/06 – 07	 	$5,368	 	$5MM Total Limit	 	NIL	 	Occurrence	 	Marsh	 	Products coverage is 
	 
	 	 Marine Ins.	 	 	 	 	 	 	 	Excluded Products/Comp. Ops.	 	 	 	 	 	 	 	provided under 
	 
	 	Co. Company	 	 	 	 	 	 	 	$4MM Personal Injury	 	 	 	 	 	 	 	Domestic GL
	 
	 	 	 	 	 	 	 	 	 	$4MM Advertising Injury	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	$4MM Each Occurrence	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	$1MM Premises Damage	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	$10K Medical Expense	 	 	 	 	 	 	 	 
	 
	International Auto Liability
	 	St. Paul Fire &	 	TEO6101122	 	5/1/06 – 07	 	$5,000	 	$1MM Total Limit	 	NIL	 	Occurrence	 	Marsh	 	DIC and Excess to 
	 
	 	Marine Ins. Co.	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	locally required coverage







					
	 	 	 	 	 
	Risk Management Department
	 	Confidental
	 	11/9/2006





 


1









 











	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	GL/Products/Auto/Med-	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Ma/Excess	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	International Workers’ Compensation
	 	St. Paul Fire &	 	TEO6101122	 	5/1/06 –  07	 	$14,217	 	$5MM Total Limit	 	NIL	 	Occurrence	 	Marsh	 	 
	 
	 	Marine Ins. Co.	 	 	 	 	 	 	 	$1MM Total Limit	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	$1MM Total Limit	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	$250K Transit Expenses	 	 	 	 	 	 	 	Each Employee 
	 
	 	 	 	 	 	 	 	$1,490,403	 	$500K Transit Expenses	 	 	 	 	 	 	 	Total Limit
	 
	Canadian Liability (GL/EL)
	 	St. Paul Fire &	 	UXCPC0070535	 	5/1/06 –  07	 	$8,131	 	$5MM General Total Limit	 	$1,000,000 Deductible	 	Occurrence	 	Marsh	 	Limits, Deductibles and 
	 
	 	Marine of Canada	 	 	 	 	 	 	 	Incld in Limit Limited Pollution	 	 	 	 	 	 	 	Premiums in US Dollars
	 
	 
	 	 	 	 	 	 	 	 	 	$4MM Personal Injury	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	Not Covered Products/Comp. Ops.	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	$4MM Advertising Injury	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	$4MM Each Event	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	$1MM Tenant Legal Liab	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	$10K Medical Expenses	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	$1MM Employer’s Liab	 	 	 	 	 	 	 	 
	 
	Canadian Auto Liability
	 	St. Paul Fire &	 	UXCPC0070535	 	5/1/06 –  07	 	$20,599	 	$1MM Total Limit	 	$500 Ded Comp/Coll.	 	Occurrence	 	Marsh	 	Limits, Deductibles and 
	 
	 	Marine of Canada	 	 	 	 	 	 	 	 	 	$1,500 Ded on 2003 Infinity	 	 	 	 	 	Premiums in Canadian Dollars
	 
	Umbrella Liability
	 	St. Paul Fire &	 	TEO6100918	 	5/1/06 –  07	 	$276,950	 	$5MM General Aggregate	 	$10,000 Deductible	 	Occurrence	 	Marsh	 	AL, EL, Foreign AL & EL
	 
	 	Marine Ins. Co.	 	 	 	 	 	 	 	 	 	 	 	Claims Made	 	 	 	E&O and EBL
	 
	Medical Professional Liability
	 	Arch Specialty Insurance Co.	 	UFL001489500	 	5/1/06 –  07	 	$455,624	 	$10MM Aggregate	 	$1,000,000 SIR Each Claim	 	Claims Made	 	Marsh	 	 
	 
	 	 	 	 	 	 	 	 	 	$10MM Each Claim	 	 	 	 	 	 	 	 
	 
	Excess Medical Professional Liability
	 	Steadfast Insurance Co.	 	HPC9137557 00	 	5/1/06 –  07	 	$737,701	 	$25MM xs $11MM Med Prof Total Limit	 	 	 	Claims Made	 	Marsh	 	 
	 
	Excess Tech E&O (1st Excess)
	 	National Union (AIG)	 	6269980	 	5/1/06 –  07	 	$252,450	 	$15MM xs $6MM total Limit	 	 	 	Claims Made	 	Marsh	 	 







					
	 	 	 	 	 
	Risk Management Department
	 	Confidental
	 	11/9/2006






 


2









 












	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	GL/Products/Auto/Med-	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Ma/Excess	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	Excess Tech E&O (2nd Excess)
	 	ACE American Insurance Co. (ACE)	 	XEOG216841070-01	 	5/1/06 – 07	 	$109,390	 	$10MM xs $21MM Total Limit	 	Claims Made	 	Marsh	 	 
	 
	Excess Tech E&O (3rd Excess)
	 	General Security Ind. Co. of AZ (Scor)	 	QF016706-1	 	5/1/06 – 07	 	$153,287	 	$20MM xs $31MM Total Limit	 	Claims Made	 	Marsh UK	 	 
	 
	Excess Liability (1st Excess)
	 	American Guarantee (Zurich)	 	AEC9279783-05	 	5/1/06 – 07	 	$1,118,070	 	$25MM xs $5MM GL/AL/EL Total Limit	 	Occurrence	 	Marsh	 	Excludes E&O and Med Mal
	 
	Excess Liability (2nd Excess)
	 	SR International (Swiss Re)	 	MH353203	 	5/1/06 – 07	 	$460,161	 	$20MM xs $30MM GL/AL/EL Total Limit	 	Occurrence	 	Marsh Zurich	 	Excludes E&O
	 
	 	 	 	 	 	 	 	 	 	$20MM xs $36MM Med Prof Total Limit	 	Claims Made	 	 	 	 
	 
	Excess Liability
	 	American World	 	C000391/005	 	5/1/06 – 07	 	$564,000	 	$25MM xs $50MM GL/AL/EL Total Limit	 	Occurrence	 	Marsh Bermuda	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	(3rd Excess)
	 	Assurance	 	 	 	 	 	 	 	$25MM xs $51MM E&O Total Limit	 	Claims Made	 	Marsh Bermuda	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	Company (AWAC)	 	 	 	 	 	 	 	$25MM xs $56MM Med Prof Total Limit	 	Claims Made	 	Marsh Bermuda	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	Excess Liability (4th Excess)
	 	Arch Insurance Company	 	TBD	 	5/1/06 – 07	 	$427,000	 	$25MM xs $75MM GL/AL/EL Total Limit	 	Occurrence	 	 	 	(Excludes Tech 
	 
	 	 	 	 	 	 	 	 	 	$20MM xs $81MM Med Prof Total Limit	 	Claims Made	 	 	 	E&O)
	 
	Excess Liability (5th Excess)
	 	Starr Excess International	 	307865	 	5/1/06 – 07	 	$900,000	 	$150MM xs $100MM Total Limit	 	Occurrence	 	Marsh Bermuda	 	Excludes Tech 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	E&O and Med Mal
	 
	Excess Liability (6th Excess)
	 	XL Europe Ltd.	 	B0509DL469206-1	 	5/1/06 – 07	 	$225,000	 	$50MM xs $250MM Total Limit	 	Occurrence	 	Marsh UK	 	Excludes Tech E&O and Med Mal
	Punitive Damages
	 	TBD	 	 	 	 	 	 	 	 	 	 	 	Bermuda Marsh 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 







					
	 	 	 	 	 
	Risk Management Department
	 	Confidental
	 	11/9/2006






 


3









 













	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	GL/Products/Auto/Med-	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Ma/Excess	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	Employed Lawyers
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	Employed Lawyers
	 	Executive Risk	 	8171-8653	 	8/29/05 – 06	 	$50,667	 	$3MM Per Claim/Aggregate	 	$0 (A)	 	Marsh
	 
	 	 	 	 	 	 	 	 	 	$200K Defense Sub-limit	 	$50,000 (B)	 	 
	 
	Fiduciary Liability
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	Fiduciary Liability
	 	National Union Fire Ins Co of PA	 	493-64-72	 	8/29/05 – 06	 	$100,000	 	$15MM Total Limit	 	 	 	Marsh
	 
	Excess Fiduciary Liability
	 	Continental Casualty	 	DOX169838900	 	8/29/05 – 06	 	$25,000	 	$5MM xs $15MM Total Limit	 	 	 	Marsh
	 
	Property
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	Real and Personal (Excess) 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	
BI/Extra Expense
	 	FM Global	 	LR503 (USA)	 	7/15/06 – 07	 	$2,746,214	 	$6,000,000,000 Total Limit	 	 	 	ABC
	 
	 	 	 	LR503 (CN)	 	7/15/06 – 07          	 	$45,181 CN	 	 	 	 	 	 
	 
	 	 	 	UK 060928	 	7/15/06 – 07	 	13,848 GB	 	$27,459,000 Primary Limit	 	$100,000 per occurrence	Occurrence	 
	 
	 	 	 	 	 	 	 		 	US Policy in excess	 	 $200,000 inventory	 	 
	 
	 	 	 	 	 	 	 	 	 	$10,000,000 MUL	 		 	 
	 
	 	 	 	 	 	 	 	 	 	$100,000,000 Extra Expense/Expediting	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	$10,000,000 Data/Serv Intrup.	 	2 Day or $100,000 Min.	 	 
	 
	 	 	 	 	 	 	 	 	 	$20,000,000 Dependent TE	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	$250,000,000 EQ Non Rated	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	$100,000,000 Zone A & B	 	1% of TIV 	 	 
	 
	 	 	 	 	 	 	 	 	 	$20,000,000 EQ CA., HI, PR	 	5% of TIV at location	 	 
	 
	 	 	 	 	 	 	 	 	 	$100,000,000 Flood	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	$15,000,000 Flood MS	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	$40,000,000  Sacramento	 	 	 	 
	 
	Inventory
	 	Lloyd’s of London	 	QPC000545000	 	7/15/06 – 07	 	$1,896,077	 	$35,000,000 Primary Limit ex TRIA	 	$100/200,000 per occurrence        	Occurrence	Lloyd and Partners
	 
	Excess Inventory
	 	Lloyd’s of London	 	 	 	7/15/06 – 07	 	$1,014,750	 	$65M X $35M Inc. TRIA	 	 	Occurrence	Lloyd and Partners
	 
	Excess Inventory
	 	Lloyd’s of London	 	 	 	7/15/06 – 07	 	$310,250	 	$50M X $100M Inc TRIA	 	 	Occurrence	Lloyd and Partners







					
	 	 	 	 	 
	Risk Management Department
	 	Confidental
	 	11/9/2006





 


4









 












	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	GL/Products/Auto/Med-	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Ma/Excess	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	Excess Inventory
	 	Lloyd’s of London	 	 	 	7/15/06 – 07	 	$327,250	 	$50M X $150M Inc. TRIA	 	 	 	Occurrence	 	Lloyd and Partners
	 
	Stand Alone Terrorism
	 	Lloyd’s of London	 	 	 	7/15/06 – 07	 	$176,809.80	 	$35,000,000 Primary Terr.	 	 	 	Occurrence	 	Lloyd and Partners
	 
	DIC EQ/Flood/Excess
	 	United F&C	 	UIM 466568	 	7/15/06 – 07	 	$60,250 $5Mp/o $10M xFM	 	EQ/Flood CA. HI. PR.	 	5% TIV	 	Occurrence	 	HRH
	 
	 	Greenwich	 	WRG702027	 	 	 	$18,000 $1.5M p/o $10M xFM	 	 	 	 	 	 	 	 
	 
	 	Arch	 	ESP0016986-00	 	 	 	$24,762 $2M p/o $10M x FM	 	 	 	 	 	 	 	 
	 
	 	Essex	 	TBD	 	 	 	$18,572 $1.5M p/o $10M xFM	 	 	 	 	 	 	 	 
	 
	DIC EQ/Flood/Excess
	 	Continental Casualty	 	RMP2083562262	 	7/15/06 – 07	 	$50,000 $5M x$10Mx FM	 	EQ/Flood CA. HI. PR.	 	5% TIV	 	Occurrence	 	HRH
	 
	DIC EQ/Flood/Excess
	 	Lloyd’s of London	 	NSM26253	 	7/15/06 –  07	 	$39,001 $5Mx$15Mx FM	 	EQ/Flood CA. HI. PR.	 	5% TIV	 	Occurrence	 	HRH
	 
	DIC EQ/Flood/Excess
	 	Axis Surplus	 	AXS100210	 	7/15/06 –  07	 	$31,210 $5mx$20MxFM	 	EQ/CA. HI. PR.	 	5% TIV	 	Occurrence	 	HRH
	 
	DIC EQ/Flood Excess
	 	Westchester	 	I20636245 004	 	7/15/06 – 07	 	$77,381.25 $5Mx$25MxFM	 	EQ/Flood CA. HI. PR.	 	5% TIV	 	Occurrence	 	HRH
	 
	DIC/Flood Excess
	 	RSUI	 	TBD	 	7/15/06 –  07	 	$20,000 $5x$25MXFM	 	Flood	 	5% TIV	 	Occurrence	 	HRH
	 
	Directors and Officers
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	Directors and Officers
	 	AIG	 	 	 	8/29/06 –  07	 	$900,000	 	$15,000,000 Directors & Officers	 	5M Corporate Reimbursement	 	Claims Made	 	Graham
	 
	 	 	 	 	 	 	 	 	 	 	 	$5M Security Claims	 	 	 	 
	 
	Excess D&O
	 	Zurich	 	 	 	8/29/06 –  07	 	$720,000	 	$15Mx$15M Excess D&O	 	 	 	Claims Made	 	Graham
	 
	Excess D&O
	 	Platte River	 	 	 	8/29/06 –  07	 	$400,000	 	$10Mx30M Excess D&O	 	 	 	Claims Made	 	Graham
	 
	Excess D&O
	 	RSUI	 	 	 	8/29/06 –  07	 	$315,000	 	$10Mx$40M Excess D&O	 	 	 	Claims Made	 	Graham
	 
	Excess D&O
	 	SR	 	 	 	8/29/06 – 07	 	$419,225	 	$15Mx$50M Excess D&O	 	 	 	Claims Made	 	Graham







					
	 	 	 	 	 
	Risk Management Department
	 	Confidental
	 	11/9/2006







 


5









 












	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	GL/Products/Auto/Med-	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Ma/Excess	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	Excess D&O
	 	Avis RE	 	 	 	8/29/06 –  07	 	$247,100	 	$10Mx$65M Excess D&O	 	 	 	Claims Made	 	Graham	 	 
	 
	Excess D&O
	 	Starr EX	 	 	 	8/29/06 –  07	 	$537,675	 	$25Mx$75M Excess D&O	 	 	 	Claims Made	 	Graham	 	 
	 
	Side A DIC
	 	XL	 	 	 	8/29/06 –  07	 	$150,000	 	$10,000,000 DIC Side A	 	 	 	Claims Made	 	Graham	 	 
	 
	Employment Practices
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	Employment Practices
	 	AIG	 	 	 	8/29/06 –  07	 	$340,000	 	$15,000,000	 	 	 	Claims Made	 	Graham	 	 
	 
	Excess EPLI
	 	Chubb	 	 	 	8/29/06 –  07	 	$147,220	 	$10Mx$15M	 	 	 	Claims Made	 	Graham	 	 
	 
	Credit/Insolvency
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	Credit/Insolvency
	 	AIG	 	 	 	7/1/05 – 10/1/06	 	$1,266,660	 	$65,000,000 Total Aggregate/Annual	 	$10,000,000 Annual DCL Buyers	 	Claims Made	 	Aon	 	Important Warranties exist for this Cover: policy review necessary for Buyer level endorsements
	 
	 	 	 	 	 	 	 	 	 	$25,000,000 DCL Buyers

Various Endorsed Buyer Limits	 	$1,000,000 NQ Loss Amount	 	 	 	Canada	 	 
	 
	 	 	 	 	 	 	 	 	 	95% Named Buyers	 	Varies per Buyer Endorsement	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	85% DCL	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 		 	 	 	 	 	 	 	 
	 
	K&R
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	Kidnapp Ransom
	 	AIG	 	647-9377	 	5/31/06 –  07	 	$14,134	 	$25,000,000 Covered Loss A-E	 	Nil	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	$500,000 Covered Loss F	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	$1,500,000 Death/Dismemberment	 	 	 	 	 	 	 	 
	 
	Crime
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	Crime
	 	AIG	 	494-62-33	 	11/1/05 –  06	 	$161,045	 	$15,000,000 $15,000,000 Total Agg.	 	$1,000,000	 	Claims Made	 	Aon	 	 
	 
	Excess Crime
	 	Zurich	 	FID 9004604 03	 	11/1/05 –  06	 	$65,000	 	$10Mx$15M	 	 	 	Claims Made	 	Aon	 	 
	 
	Excess Crime
	 	Quanta	 	CCR400035305	 	11/1/05 –  06	 	$35,000	 	$10Mx$25M	 	 	 	Claims Made	 	Aon	 	 







					
	 	 	 	 	 
	Risk Management Department
	 	Confidental
	 	11/9/2006







 


6









 










	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	GL/Products/Auto/Med-	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Ma/Excess	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	Workers Compensation
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	Workers Compensation
Paid Loss Retro
	 	Hartford	 	39 WBR C73200	 	5/1/06 –  07	 	$10,125 Statutory	 	$10,000,000 Each Accident	 	$500,000 per Accident Loss Limit	 	 	 	Aon	 	WI
	 
	 
	 	 	 	 	 	 	 	 	 	$10,000,000 Policy Limit by Disease	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	$10,000,000 Each Employee	 	 	 	Occurrence	 	 	 	 
	 
	Workers Compensation Deductible Program
	 	Hartford	 	39 WN C73201	 	5/1/06 –  07	 	$1,076,143	 	Statutory	 	 	 	 	 	Aon	 	AL, AR, AZ, CO, CT, DC, DE, FL, GA, HI,
	 
	 	 	 	 	 	 	 	 	 	$10,000,000 Each Accident	 	$500,000 per Accident Loss 	 	Occurrence	 	 	 	IA, IL, IN, KS, KY, LA, MA, MD, MI, MO, MS,
	 
	 
	 	 	 	 	 	 	 	 	 	$10,000,000 Policy Limit by Disease	 	 	 	 	 	 	 	MT, NC, ND, NE, NH, NJ, NM, NV, NY, OK,
	 
	 
	 	 	 	 	 	 	 	 	 	$10,000,000 Each Employee	 	 	 	 	 	 	 	OR, PA, RI, SC, SD, TN, UT, VA, WV, WY
	 
	Workers Compensation

SIR Program
	 	Hartford	 	39 XWE C73202 (CA)	 	5/1/06 –  07	 	$248,097 Statutory	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	39 XWE C73204 (OH/WA)	 	 	 	 	 	

$10,000,000 Each Accident



$10,000,000 Policy Limit by Disease	 	$500,000 per Accident Loss 	 	Occurrence	 	Aon 	 	 CA:  OH/WA
	 
	Workers Compensation
	 	Brick Sleet	 	WC10004369-01	 	7/1/06 –  07	 	$640	 	 	 	 	 	 	 	ABC	 	 
	 
	Aviation
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	Aviation
	 	Net Jets Program	 	SIHL1-609E	 	 	 	2873.25 See Schedule	 	See Schedule	 	See Schedule	 	Occurrence	 	NetJets	 	 
	 
	Underground Storage Tank
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	UST Liability
	 	Zurich	 	USC533500502	 	7/1/06 –  07	 	3963 $1M/$2M	 	Each Aggregate	 	$10,000 Each claim	 	Claims Made	 	Aon	 	 







					
	 	 	 	 	 
	Risk Management Department
	 	Confidental
	 	11/9/2006







 


7











 







Schedule 6.04




Existing Liens 






	1.	 	PERSONAL PROPERTY SECURITY ACT (ONTARIO) REGISTRATIONS





AmerisourceBergen Canada Corporation 

Corporation AmerisourceBergen Canada

AmerisourceBergen Canada Corporation Corporation AmerisourceBergen Canada




The certified PPSA enquiry responses each with a file currency of November 5, 2006, which we
obtained with respect to the above-noted entities, disclosed no registrations made under the
Corporation Securities Registration Act (the “CSRA”) and no financing statements or financing
change statements filed under the PPSA, which appear to affect the above-noted entities.



Rep-Pharm Inc.




The certified PPSA enquiry response with a file currency of November 5, 2006, which we
obtained with respect to Rep-Pharm Inc., disclosed no registrations made under the CSRA and the
following financing statements filed under the PPSA, which appear to affect Rep-Pharm (Note: For
ease of reference, we have listed the registrations in reverse chronological order, being the order
in which they appear on the certificate. This is not indicative of
the order of priority.):



	 	 	 	 	 	 	 	 	 
	Secured	 	Collateral	 	General Collateral	 	Reference File No. &	 	 
	Party(ies)	 	Classification	 	Description	 	Registration Number(s)	 	Comments
	Ford Credit Canada 

Leasing Company

	 	Equipment, Other,
Motor Vehicles


2005 Ford Escape

V.I.N.

1FMYU03175KA64247
	 	 	 	612161559 - 20050121
1453 1530
5988 (3 years)	 	 
	 
	 	 	 	 	 	 	 	 
	Ford Credit Canada 

Leasing Company

	 	Equipment, Other,
Motor Vehicles


2005 Ford Focus 

V.I.N.

3FAFP37N25R126494
	 	 	 	610199928 - 20041029

1453 1530 6040 (3 years)	 	 
	 
	 	 	 	 	 	 	 	 
	Xerox Canada Ltd

	 	Equipment, Other
	 	 	 	878440797
- 20011130 1432 1715 8651 (5 years)	 	 







 


 









 





Trent Drugs (Wholesale) Ltd.



The certified PPSA enquiry response with a file currency of November 6, 2006, which we
obtained with respect to Trent Drugs (Wholesale) Ltd., disclosed no registrations made
under the CSRA and the following financing statements filed under the PPSA, which appear to
affect Trent Drugs (Wholesale) Ltd. (Note: For ease of reference, we have listed the
registrations in reverse chronological order, being the order in which they appear on the
certificate. This is not indicative of the order of priority.):



	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Reference File No. &	 	 
	Secured	 	Collateral	 	General Collateral	 	Registration	 	 
	Party(ies)	 	Classification	 	Description	 	Number(s)	 	Comments
	De Lage Landen
Financial Services
Canada Inc.

	 	Equipment, Other
	 	 	 	611604909 - 20041223 1503 7029

1264 (5 years)
	 	Debtor name is
listed as Trent
Drugs 
(Wholesale) Ltd
	 
	 	 	 	 	 	 	 	 
	Nissan Canada 

Finance Inc.

	 	Consumer Goods,

Equipment, Motor

Vehicles
	 	 	 	896136435 - 20030708 1452
1530 0780 (4 years)
	 	Debtor name is
listed as Trent
Drugs 
(Wholesale) Ltd
	 
	 	 	 	 	 	 	 	 
	 

	 	Amount Secured:	 	 	 	 	 	 
	 

	 	$80,261	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Date of Maturity:	 	 	 	 	 	 
	 

	 	July 4, 2006	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	2003 Infiniti	 	 	 	 	 	 
	 

	 	FX45	 	 	 	 	 	 
	 

	 	V.I.N.	 	 	 	 	 	 
	 

	 	JNRBS08WX3X403085	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Onset Capital 

Corporation

	 	Equipment, Other

No Fixed Maturity Date
	 	Folder-inserter(s),
reading base(s)
together with all
attachments
accessories
accessions
replacements
substitutions
additions and
improvements
thereto and all
proceeds in any
form derived
directly or
indirectly from any
sale and or
dealings with the
collateral and a
right to an
insurance payment
or other payment
that indemnifies or
compensates for
loss or damage to
the collateral or
proceeds of the
collateral
	 	 894096072
- 20030507 1220 8022 4053
(6 years)
	 	Debtor name is
listed as Trent
Drugs 
(Wholesale)
Ltd





 


 









 





	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Reference File No. &	 	 
	Secured	 	Collateral	 	General Collateral	 	Registration	 	 
	Party(ies)	 	Classification	 	Description	 	Number(s)	 	Comments
	National Leasing
Group Inc. L#
2209773

	 	Equipment
	 	All
photocopiers/printers/faxes
of every nature or kind
described in lease number
2209773 dated May 2,
2003 between the secured
party, as lessor and the
debtor as lessee, as
amended from time to
time, together with all
attachments, accessories
and substitutions.
	 	893992536 -
20030505 1127 6005
5147 (5 years)	 	 







	2.	 	PERSONAL PROPERTY SECURITY ACT (ALBERTA) REGISTRATIONS





AmerisourceBergen Canada Corporation

Corporation AmerisourceBergen Canada

AmerisourceBergen Canada Corporation Corporation AmerisourceBergen Canada

Rep-Pharm Inc.




The certified PPSA enquiry responses each with a file currency of November 6, 2006, which we obtained with respect to the above-noted entities, disclosed no financing statements or financing change statements filed under the PPSA, which appear to affect the above-noted entities.



Trent
Drugs (Wholesale) Ltd.




The certified PPSA enquiry response with a file currency of November 7, 2006, which we obtained with respect to Trent Drugs (Wholesale) Ltd., disclosed no financing statements or financing change statements filed under the PPSA, which appear to affect Trent Drugs (Wholesale) Ltd.




	3.	 	PERSONAL PROPERTY SECURITY ACT (BRITISH COLUMBIA) REGISTRATIONS





AmerisourceBergen Canada Corporation

Corporation AmerisourceBergen Canada

AmerisourceBergen Canada Corporation Corporation AmerisourceBergen Canada

Rep-Pharm Inc.




The certified PPSA enquiry responses each with a file currency of November 6, 2006, which we obtained with respect to the above-noted entities, disclosed no financing statements or financing change statements filed under the PPSA, which appear to affect the above-noted entities.


 


 









 





Trent Drugs (Wholesale) Ltd.




The certified PPSA enquiry response with a file currency of November 7, 2006, which we
obtained with respect to Trent Drugs (Wholesale) Ltd., disclosed no financing statements
or financing change statements filed under the PPSA, which appear to affect Trent Drugs
(Wholesale) Ltd.




	4.	 	PERSONAL PROPERTY SECURITY ACT (NEWFOUNDLAND) REGISTRATIONS





AmerisourceBergen Canada Corporation

Corporation AmerisourceBergen Canada

AmerisourceBergen Canada Corporation Corporation AmerisourceBergen Canada

Rep-Pharm Inc.




The certified PPSA enquiry responses each with a file currency of November 7, 2006,
which we obtained with respect to the above-noted entities, disclosed no financing
statements or financing change statements filed under the PPSA, which appear to affect the
above-noted entities.



Trent Drugs (Wholesale) Ltd.



The certified PPSA enquiry response with a file currency of November 7, 2006, which we
obtained with respect to Trent Drugs (Wholesale) Ltd., disclosed the following financing
statements and financing change statements filed under the PPSA, which appear to affect
Trent Drugs (Wholesale) Ltd.:



	 	 	 	 	 	 	 
	 	 	 	 	Registration	 	 
	 	 	 	 	Number(s),	 	 
	Secured	 	Collateral	 	Registration Date and	 	 
	Party(ies)	 	Classification/General Collateral Description	 	Expiry Date	 	Comments
	GMAC Leaseco 

Corporation

	 	And all proceeds therefrom


2004 Buick Century VIN 

2G4WS52J441197445
	 	3177378 (amended by
3180168 and 3726613)


February 5, 2004

February 5, 2008	 	 






 


 









 





	 	 	 	 	 	 	 
	 	 	 	 	Registration	 	 
	 	 	 	 	Number(s),	 	 
	Secured	 	Collateral	 	Registration Date and	 	 
	Party(ies)	 	Classification/General Collateral Description	 	Expiry Date	 	Comments
	De Lage
Landen
Financial
Services
Canada Inc.

	 	All goods supplied by the Secured Party
pursuant to a Lease between the Debtor and
the Secured Party, together with all parts and
accessories thereto and accession thereto and
all replacements or substitutions for such
goods and proceeds thereof (proceeds as
defined in the Personal Property Security Act
(NL)) and any insurance proceeds resulting
there from.
	 	4016344


March 21, 2005


March 21, 2010	 	 







	5.	 	PERSONAL PROPERTY SECURITY ACT (NOVA SCOTIA) REGISTRATIONS





AmerisourceBergen Canada Corporation

Corporation AmerisourceBergen Canada

AmerisourceBergen Canada Corporation Corporation AmerisourceBergen Canada

Rep-Pharm Inc.

Trent Drugs (Wholesale) Ltd.




The certified PPSA enquiry responses each with a file currency of November 7, 2006,
which we obtained with respect to the above-noted entities, disclosed no financing
statements or financing change statements filed under the PPSA, which appear to affect the
above-noted entities.


 


 









 







Schedule 6.09




Existing Restrictions 





The transaction provided for in, and the restrictions contained in, the Master Transaction
Agreement dated October 25, 2006, by and among the Company, PharMerica, Inc., a Delaware corporation
and wholly-owned subsidiary of the Company (“PharMerica”), Kindred Healthcare, Inc., a Delaware
corporation, Kindred Healthcare Operating, Inc., a Delaware corporation, Kindred Pharmacy Services,
Inc., a Delaware corporation, Safari Holding Corporation, a Delaware corporation (“Newco”), Hippo
Merger Corporation, a Delaware corporation and wholly owned subsidiary of Newco (“Hippo Merger
Sub”), and Rhino Merger Corporation, a Delaware corporation and wholly owned subsidiary of Newco,
including (a) the transfer by Pharmacy Corporation of America, a California corporation and
indirect wholly owned subsidiary of the Company, of the capital stock of each of PMSI, Inc., a
Florida corporation and Tmesys, Inc., a Florida corporation, to the Company or another Subsidiary
of the Company, (b) the borrowing by PharMerica of approximately $ 150,000,000 from certain
financial institutions (the “PharMerica Borrowing”), (c) the distribution of the proceeds of the
PharMerica Borrowing by way of dividend, inter-company payment or return of capital to the Company,
(d) the distribution of all the capital stock of PharMerica to the stockholders of the Company by
way of dividend, (e) the merger of PharMerica with Hippo Merger Sub and (f) the provision of
certain transitional services between Newco and the Company and certain of the Company’s
Subsidiaries.





 


 









 







EXHIBIT A




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 [NAME OF ASSIGNOR] (the
“Assignor”) and [NAME OF ASSIGNEE] (the “Assignee”). Capitalized terms used herein
but not otherwise defined herein shall have the meanings assigned to such terms in the Credit
Agreement identified below (as amended, the “Credit 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 Credit Agreement, as of the
Effective Date inserted by the Administrative Agent as contemplated below (a) all of the Assignor’s
rights and obligations in its capacity as a Lender under the Credit 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 (including any letters of credit,
guarantees, and swingline loans included in such facilities) and (b) 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 Credit 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 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 pursuant
to clause (a) above (the rights and obligations sold and assigned pursuant to clauses (i) and
(b) 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]1]
	 
	 	 
	3. Company:

	 	AmerisourceBergen Corporation
	 
	 	 
	4. Borrowers:

	 	The Company, the US Borrowing Subsidiaries, the UK Borrowing
Subsidiaries, the Canadian Borrowing Subsidiaries and any Borrowing
Subsidiary that is not a US Borrowing Subsidiary, a UK Borrowing
Subsidiary or a Canadian Borrowing Subsidiary and that has been
designated by the Administrative Agent as a Borrowing Subsidiary at
the request of the Company and with the consent of each Lender
under the applicable Tranche
	 
	 	 
	5. Administrative Agent:

	 	JPMorgan Chase Bank, N.A., as administrative agent for the Lenders






 





	 	 	 
	1	 	Select as applicable.




Form of Assignment and Assumption



 


A-1









 





	 	 	 
	6. Credit Agreement:

	 	The US$750,000,000 Credit Agreement dated as
of November [•], 2006, among
AmerisourceBergen Corporation, the Borrowing
Subsidiaries from time to time party thereto,
the Lenders from time to time party thereto,
JPMorgan Chase Bank, N.A., as administrative
agent for the Lenders, J. P. Morgan Europe
Limited, as London agent for the Lenders and
The Bank of Nova Scotia, as Canadian agent for
the Lenders
	 
	 	 
	7. Assigned Interest:
	 	 






	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Percentage Assigned of	 
	 	 	Aggregate Amount of	 	 	Amount of	 	 	Aggregate Amount of	 
	 	 	Commitments/Loans of	 	 	Commitments/Loans	 	 	Commitments/Loans	 
	 	 	all Lenders	 	 	Assigned	 	 	of all Lenders2	 
	Global Tranche
	 	$	260,000,000	 	 	$	 	 	 	 	 	%
	US/UK Tranche
	 	$	70,000,000	 	 	$	 	 	 	 	 	%
	US/Canadian Tranche
	 	$	200,000,000	 	 	$	 	 	 	 	 	%
	US Tranche
	 	$	220,000,000	 	 	$	 	 	 	 	 	%






Effective Date:                     , 200      [TO BE INSERTED BY THE ADMINISTRATIVE
AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]



The Assignee agrees to deliver to the Administrative Agent a completed Administrative Questionnaire
in which the Assignee designates one or more credit contacts to whom all syndicate-level
information (which may contain material non-public information about the Company, the other Loan
Parties and their Related Parties or their respective securities) will be made available and who
may receive such information in accordance with the Assignee’s compliance procedures and applicable
laws, including Federal, state and foreign securities laws.


 





	 	 	 
	2	 	Set forth, to at least nine decimals.




Form of Assignment and Assumption




 


A-2









 







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




	 	 	 	 	 
	 	[NAME OF ASSIGNOR], as Assignor,

 	 
	 	by  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[NAME OF ASSIGNEE], as Assignee,

 	 
	 	by  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 




[Consented to and]3 Accepted:



	 	 	 	 	 
	JPMORGAN CHASE BANK, N.A., as
Administrative Agent,	 	 
	 
	 	 	 	 
	by
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 
	 
	 	 	 	 
	[Consented to:]4
	 	 
	 
	 	 	 	 
	[NAME OF ISSUING BANK], as an 
Issuing Bank,	 	 
	 
	 	 	 	 
	by
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 






 








	 	 	 
	3	 	To be added only if the consent of the Administrative Agent is required under Section 11.04(b) of the Credit Agreement.
	 
	4	 	To be added only if the consent of each Issuing Bank is required by Section 9.04(b) of the Credit Agreement.




Form of Assignment and Assumption






 


A-3









 







[Consented to:]5




	 	 	 	 	 
	AMERISOURCEBERGEN CORPORATION,	 	 
	 
	 	 	 	 
	by
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 





 





	 	 	 
	5	 	To be added only if the consent of the Company is required by Section 9.04(b) of the Credit Agreement.




Form of Assignment and Assumption






 


A-4









 







ANNEX 1

to Form of Assignment and Assumption




US$750,000,000 AmerisourceBergen Corporation Credit Agreement 




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 Credit 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
Credit Agreement, (ii) it satisfies the requirements, if any, specified in the Credit Agreement
that are required to be satisfied by it in order to acquire the Assigned Interest and become a
Lender, (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit
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 and/or had the opportunity to review a
copy of the Credit Agreement to the extent it has in its sole discretion deemed necessary, together
with copies of the most recent financial statements delivered pursuant to Section 5.01(a) or
5.01(b) thereof, as applicable, and such other documents and information as it has in its sole
discretion 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, the
London Agent, the Canadian Agent or any Lender[, and (v) if it is a Foreign Lender, attached to
this Assignment and Assumption is any documentation required to be delivered by it pursuant to the
terms of the Credit Agreement, duly completed and executed by the Assignee and (b) agrees that it
will (i) independently and without reliance on the Administrative Agent, the London Agent or the
Canadian 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) 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.]6



2. Payments. From and after the Effective Date, the Applicable 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.





 





	 	 	 
	6	 	Subject to CS&M tax review.




Form of Assignment and Assumption






 


A-5









 







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, each of which shall constitute an
original and all of which when taken together shall constitute one agreement. Delivery of an
executed counterpart of a signature page of this Assignment and Assumption by telecopy or other
electronic transmission shall be as 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 laws of the State of New York.




Form of Assignment and Assumption






 


A-6









 







EXHIBIT B-1




Form of Borrower Joinder Agreement 





BORROWER JOINDER AGREEMENT dated as of [•] (this “Agreement”), among
AMERISOURCEBERGEN CORPORATION, a Delaware corporation (the “Company”), [NAME OF NEW
BORROWING SUBSIDIARY], a [JURISDICTION] [ORGANIZATIONAL FORM] (the “New Borrower”)
and JPMORGAN CHASE BANK, N.A., as administrative agent (the “Administrative Agent”)
for the Lenders.



Reference is made to the Credit Agreement dated as of November [•], 2006 (as amended,
supplemented or otherwise modified time to time, the “Credit Agreement”), among the
Company, the Borrowing Subsidiaries from time to time party thereto, the Lenders from time to time
party thereto, the Administrative Agent, J. P. Morgan Europe Limited, as London agent for the
Lenders and The Bank of Nova Scotia, as Canadian agent for the Lenders. Each capitalized term used
but not defined herein shall have the meaning assigned to it in the Credit Agreement.



Under the Credit Agreement, the Lenders and the Issuing Banks have agreed, upon the terms and
subject to the conditions set forth therein, to make Loans to, accept and purchase B/As issued by,
and issue Letters of Credit for the account of, the Borrowers, and the Company and the New Borrower
desire that the New Borrower becomes a “Borrower” and a [“Global Tranche Borrower”][ “US/UK Tranche
Borrower”][ “US/Canadian Tranche Borrower”][ “US Tranche Borrower”] under the Credit Agreement.
Each of the Company and the New Borrower represent and warrant that the representations and
warranties of the Company in the Credit Agreement relating to the New Borrower and this Agreement
are true and correct in all material respects on and as of the date hereof. The Company agrees that
the guarantee of the Company contained in the Credit Agreement, and the guarantee of each
Designated Subsidiary contained in the Guaranty Agreement, will apply to the Obligations of the New
Borrower.



Upon execution and delivery of this Agreement (and of any other documents reasonably requested
by the Administrative Agent) by each of the Company, the New Borrower and the Administrative Agent
and the satisfaction of the other conditions set forth in Section 4.03 of the Credit Agreement, the
New Borrower shall become a party to the Credit Agreement and a “Borrower” and a [“Global Tranche
Borrower”][“US/UK Tranche Borrower”] [“US/Canadian Tranche Borrower”] [“US Tranche Borrower”] for
all purposes thereof; provided that this Agreement shall not become effective if it shall be
unlawful for the New Borrower to become a “Borrower” thereunder or for any Lender participating in
a Tranche under which the New Borrower may borrow to make Loans or otherwise extend credit to the
New Borrower as provided therein.




Form of Borrower Joinder Agreement



 


B-1-1









 





The New Borrower hereby agrees to be bound by all provisions of the Credit Agreement. The
Applicable Funding Account for the New Borrower shall be:




	 	 	 	 	 	 	 	 	 
	Bank	 	Swift	 	Acct #	 	ABA	 	IBAN/ Routing Code
	 	 	 	 	 	 	 	 	 






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




Form of Borrower Joinder Agreement






 


B-1-2









 







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



	 	 	 	 	 
	 	AMERISOURCEBERGEN CORPORATION,

 	 
	 	by  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[NAME OF NEW BORROWER],

 	 
	 	by  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	JPMORGAN CHASE BANK, N.A., as

Administrative Agent,

 	 
	 	by  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



Form of Borrower Joinder Agreement






 


B-1-3









 







EXHIBIT B-2




Form of Borrower Termination Agreement 




JPMorgan Chase Bank, N.A.,
  as
administrative agent under the Credit Agreement referred to below,

c/o Loan and Agency Services Group

1111 Fannin, 10th Floor

Houston, TX 77002

Attention: Claudia Correa (Telecopy No. [•])




JPMorgan Chase Bank, N.A.,

as administrative agent under the Credit Agreement referred to below,

270 Park Avenue, NY 10017

Attention: Dawn Lee Lum (Telecopy No. (212) 270-3279)




[DATE]






Re: Borrower Termination Agreement



Ladies and Gentlemen:



Reference is made to the Credit Agreement dated as of November [•], 2006 (as amended,
supplemented or otherwise modified time to time, the “Credit Agreement”), among the
AmerisourceBergen Corporation (the “Company”), the Borrowing Subsidiaries from time to time
party thereto, the Lenders from time to time party thereto, JPMorgan Chase Bank, N.A., as
administrative agent for the Lenders, J. P. Morgan Europe Limited, as London agent for the Lenders
and The Bank of Nova Scotia, as Canadian agent for the Lenders. Each capitalized term used but not
defined herein shall have the meaning assigned to it in the Credit Agreement.



The Company hereby terminates the status of [NAME OF TERMINATED BORROWING SUBSIDIARY] (the
“Terminated Borrower”) as a “Borrower” and a [“Global Tranche Borrower”][ “US/UK Tranche
Borrower”][ “US/Canadian Tranche Borrower”][ “US Tranche Borrower”] under the Credit Agreement.
[The Company represents and warrants that all Loans made to and B/As drawn by the Terminated
Borrower have been repaid, all Letters of Credit issued for the account of the Terminated Borrower
have been drawn in full or have expired and all amounts payable by the Terminated Borrower in
respect of LC Disbursements, interest and/or fees (and, to the extent notified by the
Administrative Agent or any Lender, any other amounts payable under the Credit Agreement by the
Terminated Borrower have been paid in full on or prior to the date hereof.][The Company and the
Terminated Borrower acknowledge that the Terminated Borrower shall continue to be a Borrower until
such time as all Loans made to and B/As drawn by the Terminated Borrower have been repaid, all
Letters of Credit issued for the account of the Terminated Borrower have been drawn in full or have
expired and all amounts payable by the Terminated Borrower in respect of LC Disbursements, interest
and/or fees (and, to the extent notified by the Administrative Agent or any Lender, any other
amounts payable under the Credit Agreement by the Terminated Borrower) have been paid in full;
provided that the Terminated Borrower shall not have the right to request or receive further
extensions of credit under the Credit Agreement.]




From of Borrower Termination Agreement



 


B-2-1









 





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



	 	 	 	 	 
	 	Very truly yours,



AMERISOURCEBERGEN CORPORATION,

 	 
	 	by  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



From of Borrower Termination Agreement




 


B-2-2









 







EXHIBIT C




Form of Borrowing Request 




JPMorgan Chase Bank, N.A.,
  as
administrative agent under the Credit Agreement referred to below,

c/o Loan and Agency Services Group

1111 Fannin, 10th Floor

Houston, TX 77002

Attention: Claudia Correa (Telecopy No. [•])




J.P. Morgan Europe Limited,
  as
London agent under the Credit Agreement referred to below,

25 London Wall, London EC2Y 5AJ

Attention: Agency Department (Telecopy No. 44-207-777-2360)




The Bank of Nova Scotia,
  as
Canadian agent under the Credit Agreement referred to below,

[ADDRESS]

[ADDRESS]

Attention: [•] (Telecopy No. [•])




JPMorgan Chase Bank, N.A.,
  as
administrative agent under the Credit Agreement referred to below,

270 Park Avenue, NY 10017

Attention: Dawn Lee Lum (Telecopy No. (212) 270-3279)




[DATE]






Re: Borrowing Request



Ladies and Gentlemen:



Reference is made to the Credit Agreement dated as of November [•], 2006 (as amended,
supplemented or otherwise modified time to time, the “Credit Agreement”), among the
AmerisourceBergen Corporation (the “Company”), the Borrowing Subsidiaries from time to time
party thereto, the Lenders from time to time party thereto, JPMorgan Chase Bank, N.A., as
administrative agent for the Lenders, J. P. Morgan Europe Limited, as London agent for the Lenders
and The Bank of Nova Scotia, as Canadian agent for the Lenders. Each capitalized term used but not
defined herein shall have the meaning assigned to it in the Credit Agreement.



[NAME OF BORROWER] hereby gives you notice pursuant to Section 2.03 of the Credit Agreement
that it requests a Borrowing under the Credit Agreement, and in that connection sets forth below
the terms on which such Borrowing is requested to be made:



(a) such Borrowing shall be a [Global Tranche Revolving Borrowing][US/UK Tranche Revolving
Borrowing][US/Canadian Tranche Revolving Borrowing][US Tranche Revolving Borrowing];




From of Borrowing Request



 


C-1









 





(b) such Borrowing shall be denominated in [CURRENCY] and shall be in an aggregate principal
amount equal to US$[•]7;




(c) the date of such Borrowing shall be [•]8;



(d) such Borrowing shall be [an ABR Borrowing][a LIBOR Borrowing][a EURIBOR Borrowing][a
Canadian Prime Rate Borrowing];



(e) [if such Borrowing is a LIBOR Borrowing or EURIBOR Borrowing,] the initial Interest Period
for such Borrowing shall have a [one][two][three][six]9 months’ duration;




(f) the Applicable Funding Account for such Borrowing shall be [•]; and



(g) [if such Borrowing Subsidiary is organized in a jurisdiction other than the United States,
the United Kingdom or Canada,] payments of the principal and interest on such Borrowing will be
made from [JURISDICTION].



[Each of the][The] Company [and the [BORROWER]] hereby represents and warrants to the
Administrative Agent and the Lenders that, on the date of this Borrowing Request and on the date of
the related Borrowing, the conditions to lending specified in paragraphs (a) and (b) of
Section 4.02 of the Credit Agreement have been satisfied.




	 	 	 	 	 
	 	Very truly yours,



AMERISOURCEBERGEN CORPORATION,

 	 
	 	by  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 


 





	 	 	 
	7	 	The aggregate principal amount of any LIBOR or EURIBOR
Borrowing must be an integral multiple of the Borrowing
Multiple and not less than the Borrowing Minimum. The
aggregate principal amount of any ABR Borrowing must be an
integral multiple of $100,000 and not less than $1,000,000.
The aggregate principal amount of any Canadian Prime Rate
Borrowing must be an integral multiple of Cdn.$ 100,000 and
not less than $1,000,000.
	 
	8	 	The date of any Borrowing must be a Business Day and (a) in
the case of a LIBOR Borrowing denominated in US Dollars,
three Business Days after the date of this Borrowing Request
if this request is submitted by 12:00 noon, Local Time, and
the next Business Day thereafter if this request is submitted
after 12:00 noon, Local Time, (b) in the case of a LIBOR
Borrowing denominated in Sterling or an Alternative Currency
or a EURIBOR Borrowing, three Business Days after the date of
this Borrowing Request if this request is submitted by 12:00
noon, Local Time, and the next Business Day thereafter if
this request is submitted after 12:00 noon, Local Time,
(c) in the case of an ABR Borrowing, the date of this
Borrowing Request if this request is submitted by 12:00 noon,
Local Time, and the next Business Day thereafter if this
request is submitted after 12:00 noon, Local Time and (d) in
the case of a Canadian Prime Rate Borrowing, the date of this
Borrowing Request if this request is submitted by 12:00 noon,
Local Time, and the next Business Day thereafter if this
request is submitted after 12:00 noon, Local Time.
	 
	9	 	With the consent of each Lender with Commitments under the
Tranche under which such Borrowing is to be made, the
Interest Period may other than those set forth in this
clause.




From of Borrowing Request






 


C-2









 







EXHIBIT D




Form of Guarantee Agreement 




Form of
Guarantee Agreement

(see attached)




 


D-1









 






GUARANTEE AGREEMENT, dated as of [  ] (this “Agreement”),
between the subsidiary of the Company listed on Schedule I
hereto (the “Guarantor”) and JPMORGAN CHASE BANK, N.A., as
administrative agent (the Administrative Agent”) for the
Lenders.



Reference is made to the Credit Agreement, dated as of November [  ], 2006 (as amended,
supplemented or otherwise modified from time to time, the “Credit Agreement”), among
AmerisourceBergen Corporation, the Borrowing Subsidiaries from time to time party thereto, the
Lenders from time to time party thereto, the Administrative Agent, J.P. Morgan Europe Limited, as
London agent for the Lenders and The Bank of Nova Scotia, as Canadian agent for the Lenders. Each
capitalized term used but not defined herein shall have the meaning assigned to it in the Credit
Agreement. The Lenders have agreed to extend credit to the Borrowers subject to the terms and
conditions set forth in the Credit Agreement. The obligations of the Lenders to extend such credit
are conditioned upon, among other things, the execution and delivery of this Agreement. Each
Guarantor will derive substantial benefits from the extension of credit to the Borrowers pursuant
to the Credit Agreement and is willing to execute and deliver this Agreement in order to induce the
Lenders to extend such credit.



Accordingly, the parties hereto agree as follows:



SECTION 1. Guarantee. Each Guarantor irrevocably and unconditionally guarantees, as a
primary obligor and not merely as a surety, the due and punctual payment and performance of the
Obligations. Each Guarantor agrees that the Obligations may be extended or renewed, in whole or in
part, without notice to or further assent from it, and that it will remain bound upon its Guarantee
hereunder notwithstanding any such extension or renewal of any Obligation. Each Guarantor waives
presentment to, demand of payment from and protest to the Borrowers, any other Loan Party or any
Guarantor of any of the Obligations, and also waives notice of acceptance of its Guarantee and
notice of protest for nonpayment.



SECTION 2. No Limitations. Except for termination of any Guarantor’s obligations
hereunder as expressly provided in Section 8 of this Agreement and Sections 11.14 and 11.16 of the
Credit Agreement, the obligations of such Guarantor hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason, including any claim of waiver,
release, surrender, alteration, or compromise, and shall not be subject to any defense or setoff,
counterclaim, recoupment or termination whatsoever, by reason of the invalidity, illegality or
unenforceability of the Obligations, any impossibility in the performance of the Obligations or
otherwise. Without limiting the generality of the foregoing, the obligations of each of the
Guarantors hereunder shall not be affected by (a) the failure of the Administrative Agent or any
other Lender to assert any claim or demand or to enforce or exercise any right or remedy under the
provisions of the Credit Agreement, this Agreement, any other Loan Document or otherwise, (b) any
extension or renewal of any of the Obligations, (c) any rescission, waiver, amendment or
modification of, or release from any of the terms or provisions of, the Credit Agreement, this
Agreement or any other Loan Document, (d) any default, failure or delay, willful or otherwise, in
the performance of the Obligations or (e) any other act, omission or delay to do any other act
which may or might in any manner or to any extent vary the risk of such Guarantor or otherwise
operate as a discharge of such Guarantor as a matter of law or equity (other than the indefeasible
payment in full in cash of all the Obligations) or which would impair or eliminate any right of
such Guarantor to subrogation. Each Guarantor expressly authorizes the Administrative Agent and
the Lenders to release or substitute any one or more other guarantors or obligors upon or in
respect of the Obligations, all without affecting the obligations of such Guarantor hereunder.


 


D-2









 





SECTION 3. Guarantee of Payment. Each Guarantor further agrees that its guarantee
hereunder constitutes a guarantee of payment when due (whether or not any bankruptcy or similar
proceeding shall have stayed the accrual or collection of any of the Obligations or operated as a
discharge thereof) and not merely of collection, and waives any right to require that any resort be
had by the Administrative Agent or any other Lender to any balance of any deposit account or credit
on the books of the Administrative Agent or any other Lender in favor of the Borrowers, any other
Loan Party, any other Guarantor or any other Person.



SECTION 4. Defenses Waived. To the fullest extent permitted by applicable law, each
Guarantor waives any defense based on or arising out of any defense of the Borrowers, any other
Loan Party or any other Guarantor or the unenforceability of the Obligations or any part hereof
from any cause, or the cessation from any cause of the liability of the Borrowers, any other Loan
Party or any other Guarantor, other than the indefeasible payment in full in cash of all the
Obligations. The Administrative Agent and the other Lenders may, at their election, compromise or
adjust any part of the Obligations, make any other accommodation with the Borrowers, any other Loan
Party or any Guarantor or exercise any other right or remedy available to them against the
Borrowers or any other Loan Party, without affecting or impairing in any way the liability of any
Guarantor hereunder except to the extent all the Obligations have been fully and indefeasibly paid
in cash. To the fullest extent permitted by applicable law, each Guarantor waives any defense
arising out of any such election even though such election operates, pursuant to applicable law, to
impair or extinguish any right of reimbursement or subrogation or other right or remedy of such
Guarantor against the Borrowers, any other Loan Party or any other Guarantor, as the case may be,
or any security.



SECTION 5. Agreement to Pay; Subordination. In furtherance of the foregoing and not in
limitation of any other right that any Agent or any other Lenders may have at law or in equity
against any Guarantor by virtue hereof, upon the failure of the Borrowers any other Loan Party or
any Guarantor to pay any Obligation when and as the same shall become due, whether at maturity, by
acceleration, after notice of prepayment or otherwise, each Guarantor hereby promises to and will,
upon receipt of written demand by the Applicable Agent, forthwith pay, or cause to be paid, to the
Applicable Agent for distribution to the applicable Lenders in cash the amount of such unpaid
Obligation. Upon payment by any Guarantor of any sums to the Applicable Agent as provided above,
all rights of such Guarantor against the Borrowers, any other Loan Party or any other Guarantor
arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity
or otherwise shall in all respects be subordinated and junior in right of payment to the prior
indefeasible payment in full in cash of all the Obligations. In addition, any Indebtedness of the
Borrowers, any other Loan Party or any Guarantor now or hereafter held by any Guarantor is hereby
subordinated in right of payment to the prior indefeasible payment in full in cash of all the
Obligations. If any amount shall erroneously be paid to any Guarantor on account of (a) such
subrogation, contribution, reimbursement, indemnity or similar right or (b) any such Indebtedness
of the Borrowers, any other Loan Party or any Guarantor, such amount shall be held in trust for the
benefit of the Lenders and shall forthwith be paid to the Applicable Agent to be credited against
the payment of the Obligations, whether matured or unmatured, in accordance with the terms of the
Credit Agreement or any other Loan Document.



SECTION 6. Information. Each Guarantor assumes all responsibility for being and
keeping itself informed of each Borrower’s, each other Loan Party’s and each Guarantor’s financial
condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the
Obligations and the nature, scope and extent of the risks that such Guarantor assumes and incurs
hereunder and agrees that none of the Administrative Agent or the other Lenders will have any duty
to advise such Guarantor of information known to it or any of them regarding such circumstances or
risks.



SECTION 7. Taxes. Each Guarantor agrees that the provisions of Section 2.17 of the
Credit Agreement shall apply equally to such Guarantor with respect to payments made by it
hereunder.


 


D-3









 





SECTION 8. Termination.



(a) Each of the Guarantees made hereunder shall (i) subject to clause (ii) below, terminate
when all the Obligations have been indefeasibly paid in full in cash and the Lenders have no
further commitment to lend under the Credit Agreement and (ii) continue to be effective or be
reinstated, as the case may be, if at any time payment, or any part thereof, of any Obligation is
rescinded or must otherwise be restored by the Administrative Agent or any other Lender upon the
bankruptcy or reorganization of any Borrower, any other Loan Party or any Guarantor, or otherwise.



(b) The Administrative Agent shall release any Guarantor that ceases to be a Subsidiary as a
result of transactions permitted under the Credit Agreement from its obligations hereunder on the
terms and subject to the conditions and limitations set forth in Section 11.14 of the Credit
Agreement.



SECTION 9. Effectiveness; Binding Agreement; Assignments. This Agreement shall become
effective when a counterpart hereof executed on behalf of each Guarantor shall have been delivered
to the Administrative Agent, and a counterpart hereof shall have been executed on behalf of the
Administrative Agent, and thereafter shall be binding upon the parties hereto and their respective
successors and assigns, and shall inure to the benefit of each Guarantor, the Administrative Agent,
the other Lenders and their respective successors and assigns, except that none of the Guarantors
shall have the right to assign or otherwise transfer any of its rights or obligations hereunder or
any interest herein, and any such attempted assignment or transfer shall be null and void.
Whenever in this Agreement any of the parties hereto is referred to, such reference shall be deemed
to include the successors and assigns of such party permitted hereby.



SECTION 10. Waivers; Amendment.



(a) No failure or delay of the Administrative Agent or any other Lender in exercising any
right or power hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such
a right or power, preclude any other or further exercise thereof or the exercise of any other right
or power. The rights and remedies of the Administrative Agent and the other Lenders hereunder or
under the Credit Agreement or any other Loan Document are cumulative and are not exclusive of any
rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or
consent to any departure by any Guarantor therefrom shall in any event be effective unless the same
shall be permitted by paragraph (b) of this Section, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given. No notice or demand
on any Guarantor in any case shall entitle such Guarantor to any other or further notice or demand
in similar or other circumstances.



(b) Neither this Agreement nor any provision hereof may be waived, amended or modified except
pursuant to an agreement or agreements in writing entered into by the Administrative Agent and each
Guarantor, subject to any consent required in accordance with Section 11.02 of the Credit
Agreement.



SECTION 11. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.



SECTION 12. Notices. All communications and notices hereunder shall be in writing and
given as provided in Section 11.01 of the Credit Agreement. All communications and notices
hereunder to the Guarantors shall be given to it at 1300 Morris Drive, Suite 100, Chesterbrook, PA
19087, Attention of J.F. Quinn (Telecopy (610) 727-3639), with a copy to the Company, Attention of
General Counsel.


 


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SECTION 13. Survival of Agreement; Severability.



(a) All covenants, agreements, representations and warranties made by the Guarantors herein
and in the certificates or other instruments prepared or delivered in connection with or pursuant
to this Agreement shall be considered to have been relied upon by the Administrative Agent and the
other Lenders and shall survive the execution and delivery of this Agreement and the making of the
Loans, the acceptance and purchase of any B/As and the issuance of any Letters of Credit,
regardless of any investigation made by any of them or on their behalf and notwithstanding that the
Administrative Agent or any other Lender may have had notice or knowledge of any Default or
incorrect representation or warranty at the time any credit is extended under the Credit Agreement,
and shall continue in full force and effect as long as the principal of or any accrued interest on
any Loan or any fee or any other amount payable under this Agreement or any other Loan Document is
outstanding and unpaid and as long as the Commitments have not expired or been terminated.



(b) In the event any one or more of the provisions contained in this Agreement should be held
invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or impaired thereby (it
being understood that the invalidity of a particular provision in a particular jurisdiction shall
not in and of itself affect the validity of such provision in any other jurisdiction). The parties
shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as possible to that of
the invalid, illegal or unenforceable provisions.



SECTION 14. Counterparts. This Agreement may be executed in counterparts, each of
which shall constitute an original, but all of which when taken together shall constitute a single
contract, and shall become effective as provided in Section 9. Delivery of an executed signature
page to this Agreement by facsimile or other electronic transmission shall be as effective as
delivery of a manually executed counterpart of this Agreement.



SECTION 15. Rules of Interpretation. The rules of interpretation specified in Sections
1.03, 1.04 and 1.05 of the Credit Agreement shall be applicable to this Agreement.



SECTION 16. Jurisdiction; Consent to Service of Process.



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



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


 


D-5









 





(c) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 12. Nothing in this Agreement will affect the right of any party
to this Agreement to serve process in any other manner permitted by law.



SECTION 17. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT
OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER; AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION.



SECTION 18. Right of Setoff. If an Event of Default shall have occurred and be
continuing, the Administrative Agent, each other Lender and each of their Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by law, to set off
and apply any and all deposits (general or special, time or demand, provisional or final) at any
time held and other Indebtedness at any time owing by such Person to or for the credit or the
account of any Guarantor against any or all the obligations of such Guarantor now or hereafter
existing under this Agreement held by such Person, irrespective of whether or not such Person shall
have made any demand under this Agreement and although such obligations may be unmatured. The
rights of the Administrative Agent, each other Lender and each of their Affiliates under this
Section are in addition to other rights and remedies (including other rights of setoff) which such
Person may have.



SECTION 19. No Fiduciary Relationship. Each Guarantor, on behalf of itself and its
Affiliates, agrees that in connection with all aspects of the transactions contemplated hereby and
any communications in connection therewith, such Guarantor and its Affiliates, on the one hand, and
the Administrative Agent, the other Lenders and their Affiliates, on the other hand, will have a
business relationship that does not create, by implication or otherwise, any fiduciary duty on the
part of the Administrative Agent, the other Lenders or their Affiliates, and no such duty will be
deemed to have arisen in connection with any such transactions or communications.



[the rest of this page left intentionally blank]




 


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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their
respective authorized Officers as of the day and year first above written.



	 	 	 	 	 
	 	[NAME OF GUARANTORS]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	JPMORGAN CHASE BANK, N.A., as 

Administrative Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 


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Schedule I

to Form of Guarantee Agreement




Guarantors





 


 











 





EXHIBIT E




Mandatory Costs Rate 





	1.	 	The Mandatory Costs Rate is an addition to the interest rate to
compensate Lenders for the cost of compliance with (a) the
requirements of the Bank of England and/or the Financial Services
Authority (or, in either case, any other authority which replaces all
or any of its functions) or (b) the requirements of the European
Central Bank.






	2.	 	On the first day of each Interest Period (or as soon as possible
thereafter) the London Agent shall calculate a rate (the “Additional
Costs Rate”), expressed as a percentage, for each Lender, in
accordance with the paragraphs set out below. The Mandatory Costs Rate
will be calculated by the London Agent as a weighted average of the
Lenders’ Additional Costs Rates (weighted in proportion to the
percentage participation of each Lender in the applicable Borrowing)
and will be expressed as a percentage rate per annum.






	3.	 	The Additional Costs Rate for any Lender lending from a Lending Office
located in a Participating Member State will be the percentage
notified by that Lender to the London Agent. This percentage will be
certified by that Lender in its notice to the London Agent to be its
reasonable determination of the cost (expressed as a percentage of
that Lender’s participation in all Loans made from such Lending
Office) of complying with the minimum reserve requirements of the
European Central Bank in respect of Loans made from such Lending
Office.






	4.	 	The Additional Costs Rate for any Lender lending from a Lending Office
in the United Kingdom will be calculated by the London Agent as
follows:






(a) with respect to any Loan denominated in Sterling:



	 	 	 
	AB+C(B-D)+E×0.01
 


	 	percent per annum 
	100-(A+C)
	 	 







(b) with respect to any Loan denominated in any currency (other than Sterling):




	 	 	 
	E×0.01
 


	 	percent per annum 
	300
	 	 






Where:



“A” means the percentage of Eligible Liabilities (assuming these to be in excess of any
stated minimum) which that Lender is from time to time required to maintain as an interest free
cash ratio deposit with the Bank of England to comply with cash ratio requirements.



“B” means the percentage rate of interest (excluding the Applicable Rate and the Mandatory
Costs Rate and, if the Loan was not paid when due, the additional rate of interest specified in
Section 2.13(e)) payable for the applicable Interest Period on the Loan.



“C” means the percentage (if any) of Eligible Liabilities which that Lender is required
from time to time to maintain as interest bearing Special Deposits with the Bank of England.



“D” means the percentage rate per annum payable by the Bank of England to the London Agent
on interest bearing Special Deposits.




Mandatory Costs Rate



 


E-1









 





“E” is designed to compensate Lenders for amounts payable under the Fees Rules and is
calculated by the London Agent as being the average of the most recent rates of charge supplied by
the Reference Banks to the London Agent pursuant to paragraph 7 below and expressed in Sterling per
£1,000,000.




	5.	 	For the purposes of this Schedule:






	 	(a)	 	“Eligible Liabilities” and “Special Deposits” have the meanings given
to them from time to time under or pursuant to the Bank of England Act
1998 or (as may be appropriate) by the Bank of England.






	 	(b)	 	“Fees Rules” means the rules on periodic fees contained in the
Financial Services Authority Supervision Manual or such other law or
regulation as may be in force from time to time in respect of the
payment of fees for the acceptance of deposits.






	 	(c)	 	“Fee Tariffs” means the fee tariffs specified in the Fees Rules under
the activity group A.1 Deposit acceptors (ignoring any minimum fee or
zero rated fee required pursuant to the Fees Rules but taking into
account any applicable discount rate).






	 	(d)	 	“Participating Member State” means any member state of the European
Communities that adopts or has adopted the Euro as its lawful currency
in accordance with legislation of the European Community relating to
Economic and Monetary Union.






	 	(e)	 	“Tariff Base” has the meaning given to it in, and will be calculated in accordance with, the Fees Rules.






	6.	 	In application of the above formulae, A, B, C and D will be included
in the formulae as percentages (i.e. 5% will be included in the
formula as 5 and not as 0.05). A negative result obtained by
subtracting D from B shall be taken as zero. The resulting figures
shall be rounded to four decimal places.






	7.	 	If requested by the London Agent, each Reference Bank shall, as soon
as practicable after publication by the Financial Services Authority,
supply to the London Agent, the rate of charge payable by that
Reference Bank to the Financial Services Authority pursuant to the
Fees Rules in respect of the relevant financial year of the Financial
Services Authority (calculated for this purpose by that Reference Bank
as being the average of the Fee Tariffs applicable to that Reference
Bank for that financial year) and expressed in Sterling per £1,000,000
of the Tariff Base of that Reference Bank.






	8.	 	Each Lender shall supply any information required by the London Agent
for the purpose of calculating its Additional Costs Rate. In
particular, but without limitation, each Lender shall supply the
following information on or prior to the date on which it becomes a
Lender:






	 	(a)	 	the jurisdiction of its applicable Lending Office; and






	 	(b)	 	any other information that the London Agent may reasonably require for such purpose.





Each Lender shall promptly notify the London Agent of any change to the information provided by it
pursuant to this paragraph.




Mandatory Costs Rate




 


E-2









 








	9.	 	The percentages of each Lender for the purpose of A and C above and
the rates of charge of each Reference Bank for the purpose of E above
shall be determined by the London Agent based upon the information
supplied to it pursuant to paragraphs 7 and 8 above and on the
assumption that, unless a Lender notifies the London Agent to the
contrary, each Lender’s obligations in relation to cash ratio deposits
and Special Deposits are the same as those of a typical bank from its
jurisdiction of incorporation with a Lending Office in the same
jurisdiction as its applicable Lending Office.






	10.	 	The London Agent shall have no liability to any person if such
determination results in an Additional Costs Rate which over or under
compensates any Lender and shall be entitled to assume that the
information provided by any Lender or Reference Bank pursuant to
paragraphs 3, 7 and 8 above is true and correct in all respects.






	11.	 	The London Agent shall distribute the additional amounts received as a
result of the Mandatory Costs Rate to the Lenders on the basis of the
Additional Costs Rate for each Lender based on the information
provided by each Lender and each Reference Bank pursuant to paragraphs
3, 7 and 8 above.






	12.	 	Any determination by the London Agent pursuant to this Schedule in
relation to a formula, the Mandatory Costs Rate, an Additional Costs
Rate or any amount payable to a Lender shall, in the absence of
manifest error, be conclusive and binding.






	13.	 	The London Agent may from time to time, after consultation with the
Borrower and the Lenders, determine and notify to all parties any
amendments which are required to be made to this Schedule in order to
comply with any change in law, regulation or any requirements from
time to time imposed by the Bank of England, the Financial Services
Authority or the European Central Bank (or, in any case, any other
authority which replaces all or any of its functions) and any such
determination shall, in the absence of manifest error, be conclusive
and binding.





Mandatory Costs Rate





 


E-3









 







EXHIBIT F-1




Form of Opinion of Dechert LLP, Counsel for the Company 




From of Opinion of Dechert LLP, Counsel for the Company



 


[Blank
in original]



 


F-1-1









 





EXHIBIT F-2




Form of Opinion of John G. Chou, Deputy General Counsel of the Company 




From of Opinion of John G. Chou, Deputy General Counsel for the Company




 


[Blank
in original]



 


F-2-1









 







EXHIBIT F-3




Form of Opinion of McMillan Binch Mendelsohn LLP 




Form of Opinion of McMillan Binch Mendelsohn LLP



 


[Blank
in original]



 


F-3-1









 







EXHIBIT F-4




Form of Opinion of Dechert LLP, Counsel for the UK Borrowing Subsidiaries 




Form of Opinion of Dechert LLP, Counsel for the UK Borrowing Subsidiaries



 


[Blank
in original]



 


F-4-1