FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
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THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT ("Amendment")
is entered into among AMERISOURCE CORPORATION, a Delaware corporation
("Borrower"), GENERAL ELECTRIC CAPITAL CORPORATION, a corporation organized
under the banking laws of the State of New York ("GE Capital"), Co-Agents (as
defined in the Credit Agreement, as defined below), and each of the other
lenders thereunder (collectively, the "Lenders" and each, a "Lender"), GE
Capital and BANKERS TRUST COMPANY, a corporation organized under the banking
laws of the State of new York ("BTCo"), as managing agents, BTCo, as the issuing
lender, and GE Capital, as the administrative agent for Lenders (in such
capacity, "Agent"), as of February 10, 1995, with reference to the following
facts:
RECITALS
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A. Borrower, GE Capital, individually and in its capacities as a managing
agent and Agent, BTCo, individually and in its capacities as a managing agent
and the issuing lender, Co-Agents, and each of the other Lenders, have entered
into that certain Amended and Restated Credit Agreement dated as of December 13,
1994 (the "Credit Agreement"), pursuant to which Lenders agreed to make certain
financial accommodations to or for the benefit of Borrower upon the terms and
conditions contained therein. Unless otherwise defined in this Amendment, (i)
capitalized terms used herein shall have the meanings attributed to them in the
Credit Agreement, and (ii) references to sections and subsections shall refer to
sections or subsections of the Credit Agreement.
B. Section 6.14 requires that, subject to the additional terms and
conditions set forth therein, Borrower enter into Interest Rate Contracts within
60 days after the Restatement Closing Date.
C. Borrower has requested that Lenders extend the time for performance of
Section 6.14, and Lenders are willing to do so subject to the terms and
conditions set forth in this Amendment.
NOW, THEREFORE, in consideration of the continued performance by
Borrower of its promises and obligations under the Credit Agreement and the
other Loan Documents, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Borrower and Lenders hereby
agree as follows:
AGREEMENT
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1. INCORPORATION OF CREDIT AGREEMENT AND OTHER LOAN DOCUMENTS. Except as
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expressly modified under this Amendment, all of the terms and conditions set
forth in the Credit Agreement and the other Loan Documents are incorporated
herein by this reference, and the obligations of Borrower under the Credit
Agreement and the other Loan Documents are hereby acknowledged, confirmed and
ratified by Borrower.
2. AMENDMENT. Section 6.14 is hereby deleted in its entirety, and the
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following is substituted therefor:
6.14 Interest Rate Contracts. Unless the Receivables Trust
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issues certificates with fixed interest rates in an aggregate amount of
$150,000,000 or more, Borrower or Receivables Corporation shall enter into
Interest Rate Contracts in form and substance satisfactory to Agent on or
before May 15, 1995 for an aggregate amount of not less than $150,000,000
of variable rate Indebtedness, and such Interest Rate Contracts shall (a)
be for a term of not less than one year, and (b) remain in effect until a
date not earlier than the second anniversary of the Restatement Closing
Date; provided, that such $150,000,000 amount shall be reduced by the
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amount of the net cash proceeds received by Borrower from one or more
public offerings of the Stock of Borrower or Parent.
3. CONDITIONS OF EFFECTIVENESS. This Amendment shall become effective
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upon satisfaction of each of the following conditions:
(a) Agent shall have received copies of this Amendment that,
when taken together, bear the signatures of Borrower and Lenders sufficient
to constitute the Requisite Lenders; and
(b) Agent shall have received a copy of the accompanying
Guarantor Consents executed by Parent, Health Services Plus, Inc., and
Health Services Capital Corporation.
4. ENTIRE AGREEMENT. This Amendment, together with the Credit Agreement
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and the other Loan Documents, is the entire agreement between the parties hereto
with respect to the subject matter hereof. This Amendment supersedes all prior
and contemporaneous oral and written agreements and discussions with respect to
the subject matter hereof. Except as otherwise expressly modified herein, the
Credit Agreement and the other Loan Documents shall remain in full force and
effect.
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5. REPRESENTATIONS AND WARRANTIES. Borrower hereby represents and
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warrants that the representations and warranties contained in the Credit
Agreement were true and correct in all material respects when made and, except
to the extent (a) that a particular representation or warranty by its terms
expressly applies only to an earlier date, or (b) Borrower has previously
advised Agent in writing as contemplated under the Credit Agreement, are true
and correct in all material respects as of the date hereof.
6. MISCELLANEOUS.
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6.1 Counterparts. This Amendment may be executed in identical
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counterpart copies, each of which shall be an original, but all of which shall
constitute one and the same agreement. Delivery of an executed counterpart of a
signature page to this Amendment by facsimile transmission shall be effective as
delivery of a manually executed counterpart of this Amendment. Any Lender
delivering this Amendment by facsimile shall send the original manually executed
counterpart of this Amendment to Agent's counsel promptly after such facsimile
transmission.
6.2 Headings. Section headings used herein are for convenience of
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reference only, are not part of this Amendment, and are not to be taken into
consideration in interpreting this Amendment.
6.3 Recitals. The recitals set forth at the beginning of this
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Amendment are true and correct, and such recitals are incorporated into and are
a part of this Amendment.
6.4 Governing Law. This Amendment shall be governed by, and
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construed and enforced in accordance with, the laws of the State of New York
applicable to contracts made and performed in such state, without regard to the
principles thereof regarding conflict of laws.
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6.5 No Novation. Except as specifically set forth in section 2 of
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this Amendment, the execution, delivery and effectiveness of this Amendment
shall not (a) waive any breaches or defaults under the Credit Agreement or the
other Loan Documents, whether known or unknown, (b) limit, impair, constitute a
waiver by, or otherwise affect any right, power or remedy of, Agent or any
Lender under the Credit Agreement or any other Loan Document, (c) constitute a
waiver of any provision in the Credit Agreement or in any of the other Loan
Documents, or under applicable law, or (d) alter, modify, amend or in any way
affect any of the terms, conditions, obligations, covenants or agreements
contained in the Credit Agreement, all of which are ratified and affirmed in all
respects and shall continue in full force and effect.
6.6 Conflict of Terms. In the event of any inconsistency between the
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provisions of this Amendment and any provision of the Credit Agreement, the
terms and provisions of this Amendment shall govern and control.
IN WITNESS WHEREOF, this Amendment has been duly executed as of the
date first written above.
AMERISOURCE CORPORATION,
a Delaware corporation
By /s/ Xxxxxxx X. Xxxxxxxxxx
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Name Xxxxxx X. Xxxxxxxxxx
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Title Vice President, Legal
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Counsel and Secretary
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LENDERS:
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GENERAL ELECTRIC CAPITAL CORPORATION,
as Agent, a Managing Agent and a Lender
By /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Duly Authorized Signatory
BANKERS TRUST COMPANY, as a Managing
Agent, Issuing Lender and a Lender
By /s/ Xxxxxxxx X. Xxxxxx Xx
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Name Xxxxxxx X. Xxxxxx Xx
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Title Vice President
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[SIGNATURE LINES CONTINUED]
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BANKAMERICA BUSINESS CREDIT, INC., as a
Co-Agent and a Lender
By /s/ Xxxxxx Markonsky
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Name Xxxxxx Markonsky
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Title Vice President
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XXXXXX FINANCIAL, INC., as a Co-Agent
and as a Lender
By /s/ Xxxxxxxx Gairni
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Name Xxxxxxxx Gairni
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Title Assistant Vice President
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BANK OF MONTREAL, as a Lender
By /s/ Xxxxx X. Xxxxxx
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Name Xxxxx X. Xxxxxx
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Title Director
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BANK OF NEW YORK COMMERCIAL CORPORATION,
as a Lender
By /s/ Xxxxxxx Xxxxx
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Name Xxxxxxx Xxxxx
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Title Vice President
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BOT FINANCIAL CORPORATION, as a Lender
By [Signature not Legible]
Name __________________________
Title _________________________
[SIGNATURE LINES CONTINUED]
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THE CIT GROUP/BUSINESS CREDIT, INC.,
as a Lender
By _____________________________
Name ___________________________
Title __________________________
CORESTATES BANK, N.A., as a Lender
By /s/ Xxxxxx X. Xxxxxxxx
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Name Xxxxxx X. Xxxxxxxx
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Title Commercial Officer
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THE FIRST NATIONAL BANK OF BOSTON,
as a Lender
By /s/ Xxxxxxx X. Xxxxxxxx
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Name Xxxxxxx X. Xxxxxxxx
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Title Vice President
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GIROCREDIT BANK AKTIENGESELLSCHAFT
DER SPARKASSEN, GRAND CAYMAN ISLAND
BRANCH, as a Lender
By _____________________________
Name ___________________________
Title __________________________
HOUSEHOLD COMMERCIAL FINANCIAL SERVICES,
INC., as a Lender
By _____________________________
Name ___________________________
Title __________________________
[SIGNATURE LINES CONTINUED]
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LASALLE NATIONAL BANK, as a Lender
By /s/ Xxxxxxxxxxx X. Xxxxxxxxx
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Name Xxxxxxxxxxx X. Xxxxxxxxx
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Title Senior Vice President
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MERIDIAN BANK, as a Lender
By /s/ Xxxxxx Nownnis
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Name Xxxxxx Nownnis
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Title Assistant Vice President
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NATIONSBANK OF GEORGIA, N.A.,
as a Lender
By /s/ Xxxxx X. Xxxxx
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Name Xxxxx X. Xxxxx
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Title Vice President
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SANWA BUSINESS CREDIT CORPORATION,
as a Lender
By [Signature Not Legible]
___________________________
Name _________________________
Title Vice President
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SHAWMUT BANK, N.A.,
as a Lender
By ___________________________
Name _________________________
Title ________________________
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GUARANTOR CONSENTS
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AmeriSource Distribution Corporation, a Delaware corporation, hereby
(i) ratifies and reaffirms, as of the date hereof, all of the provisions of that
certain Amended and Restated Guaranty and Pledge Agreement dated as of December
13, 1994 in favor of Agent, (ii) acknowledges receipt of a copy of the First
Amendment to Amended and Restated Credit Agreement dated as of February 10, 1995
(the "Amendment"), and (iii) consents to all of the provisions of the Amendment.
Dated: February 10, 1995 AMERISOURCE DISTRIBUTION
CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxxx
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Title: Vice President, Legal Counsel
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and Secretary
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Health Services Plus, Inc., a Delaware corporation, hereby (i)
ratifies and reaffirms, as of the date hereof, all of the provisions of that
certain Amended and Restated Continuing Guaranty dated as of December 13, 1994
in favor of Agent, (ii) acknowledges receipt of a copy of the First Amendment to
Amended and Restated Credit Agreement dated as of February 10, 1995 (the
"Amendment"), and (iii) consents to all of the provisions of the Amendment.
Dated: February 10, 1995 HEALTH SERVICES PLUS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
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Title: Secretary
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Health Services Capital Corporation, a Delaware corporation, hereby
(i) ratifies and reaffirms, as of the date hereof, all of the provisions of that
certain Amended and Restated Continuing Guaranty dated as of December 13, 1994
in favor of Agent, (ii) acknowledges receipt of a copy of the First Amendment to
Amended and Restated Credit Agreement dated as of February 10, 1995 (the
"Amendment"), and (iii) consents to all of the provisions of the Amendment.
Dated: February 10, 1995 HEALTH SERVICES CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxxx
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Title: Secretary
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