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EXHIBIT 10-D
SIXTH AMENDMENT TO LOAN AGREEMENT
This SIXTH AMENDMENT TO LOAN AGREEMENT (this "Amendment") is made and
entered into as of September 6, 1995, by and among FOXMEYER HEALTH CORPORATION
(f/k/a National Intergroup, Inc.) ("Borrower"), a Delaware corporation, the
Banks identified on the signature pages hereof ("Banks") and BANQUE PARIBAS, a
bank organized under the laws of the Republic of France, as Agent for Banks
("Agent").
RECITALS:
a. Pursuant to that certain Loan Agreement dated as of
January 13, 1994, by and among Borrower, Banks and Agent, as
amended by that certain (i) First Amendment to Loan Agreement
dated as of January 13, 1994, (ii) Second Amendment to Loan
Agreement dated as of September 6, 1994, (iii) Third Amendment
Agreement dated as of October 12, 1994, (iv) Fourth Amendment
to Loan Agreement dated as of December 19, 1994 and (v) Fifth
Amendment to Loan Agreement dated as of March 22, 1995 (as the
same may be further amended, renewed, extended, restated or
otherwise modified from time to time, the "Agreement"), Banks
agreed to provide to Borrower a revolving credit and letter of
credit facility in the maximum aggregate principal amount of
$15,000,000.
b. The indebtedness of Borrower to the Banks pursuant to
the Agreement is evidenced by (i) a Promissory Note dated
February 22, 1994, in the maximum original principal amount of
$10,000,000 made by Borrower and payable to the order of
Banque Paribas, and (ii) a Promissory Note dated February 22,
1994, in the maximum original principal amount of $5,000,000
made by Borrower and payable to the order of Credit Lyonnais
New York Branch (as amended, renewed, extended, restated,
replaced or supplemented from time to time, whether by one or
more other promissory notes or otherwise and whether payable
to the Banks identified above or their successors or assigns,
the "Notes").
c. Effective as of October 12, 1994, Borrower changed
its name from "National Intergroup, Inc." to "FoxMeyer Health
Corporation."
d. The Obligations (as such term is defined in the
Agreement) are secured by security interests evidenced and
created by that certain Amended and
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Restated Pledge and Security Agreement dated as of October 12,
1994, by and between Borrower and Agent (the "Original
Security Agreement") as amended by that certain First
Amendment to Amended and Restated Pledge and Security
Agreement dated as of March 22, 1995 (as the same may be
further amended, renewed, extended, restated or otherwise
modified from time to time, the "Security Agreement")
presently covering, in part, 150 shares of common stock of
FoxMeyer Corporation ("FoxMeyer"), which shares of common
stock of FoxMeyer, as a result of a reduction from 28,200,000
to 1,000 in the number of shares of common stock that FoxMeyer
is authorized to issue, were issued on or about March 17,
1995, in replacement of the 4,000,000 shares of FoxMeyer owned
by Borrower and pledged to Agent pursuant to the Original
Security Agreement.
e. Borrower desires to engage in certain other
transactions and, in connection therewith, Borrower, Agent and
Banks now desire to further amend the Agreement as herein set
forth.
AGREEMENTS:
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
i. Terms Defined. Unless otherwise defined in
this Amendment, each capitalized term used in this
Amendment has the meaning given to such term in the
Agreement (as amended by this Amendment).
ii. Amendments to Section 1.2 of the Agreement.
(a) Effective as of the date hereof, the following
new term and the definition thereof are hereby added
toSection 1.2 of the Agreement, which term shall
appear in alphabetical order:
"'Credit Lyonnais Loan' means the loan in the original
principal amount of $20,000,000 made by Credit Lyonnais New York
Branch to Borrower in accordance with the Credit Lyonnais Loan
Agreement."
(b) Effective as of the date hereof, the following new term and
the definition thereof are hereby added to Section 1.2 of the Agreement, which
term shall appear in alphabetical order:
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"'Credit Lyonnais Loan Agreement' means that certain Credit
Agreement dated as of September 6, 1995, by and between Borrower and
Credit Lyonnais New York Branch."
(c) Effective as of the date hereof, clause (h) of the definition
of the term "Permitted Liens" in Section 1.2 of the Agreement is hereby amended
and restated to read in its entirety as follows:
"(h) Liens affecting up to 160 shares of FoxMeyer Stock, other
than the Collateral, securing the FoxMeyer/NII Loan Facility, and
Liens affecting up to 17 shares of FoxMeyer Stock, other than the
Collateral;".
(d) Effective as of the date hereof, clause (i) of the definition
of the term "Permitted Liens" in Section 1.2 of the Agreement is hereby amended
and restated to read in its entirety as follows:
"(i) Liens affecting (A) Borrower's interest in the PMLLC and
(B) the lesser of (i) up to 300 shares of FoxMeyer Stock, other than
the Collateral, or (ii) the number of issued and outstanding shares of
FoxMeyer Stock which are not and are not required to be pledged as
Collateral in accordance with Section 3.1(a), in each case (i.e., as
to each ofclauses (A) and (B) preceding) securing the Credit Lyonnais
Loan, provided, however, that the number of such shares of FoxMeyer
Stock so pledged as security for the Credit Lyonnais Loan shall be the
minimum number of such shares as determined in accordance with
Sections 2.4 and 4.1(a) of the Credit Lyonnais Loan Agreement;".
(e) Effective as of the date hereof, clause (l) of the definition
of the term "Permitted Liens" in Section 1.2 of the Agreement is hereby amended
and restated to read in its entirety as follows:
"(l) Liens affecting Margin Stock, other than the Collateral,
owned by Borrower securing the Credit Lyonnais Loan or other
Indebtedness permitted in accordance withSection 6.2(a);".
(f) Effective as of the date hereof, the following new term and
the definition thereof are hereby added to Section 1.2 of the Agreement, which
term shall appear in alphabetical order:
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"'PMLLC' means Xxxxxxxx Xxxxxx L.L.C. (f/k/a Xxxxxx Xxxx
Group/Phar-Mor L.L.C.), a Delaware limited liability company."
(g) Effective as of the date hereof, the following new term and
the definition thereof are hereby added to Section 1.2 of the Agreement, which
term shall appear in alphabetical order:
"'PMLLC Agreement' means the Amended and Restated Limited
Liability Company Agreement of Xxxxxx Xxxx Group/Phar-Mor L.L.C. dated
May 5, 1995, by and among Xxxxxx X. Xxxx, Xxxx X. Xxxx and Borrower."
iii. Amendment to Section 6.2(a) of the Agreement.
Effective as of the date hereof, Section 6.2(a) of
the Credit Agreement is hereby amended and restated
to read in its entirety as follows:
"(a) Limitation on Indebtedness. Any Indebtedness for
borrowed money incurred by Borrower, other than Indebtedness arising
under this Agreement, shall either be (i) unsecured or (ii) secured
only by Permitted Liens referred to in clauses (a), (g), (h), (i),
(j), (k) or (l) of the definition of such term. The aggregate of all
Funded Debt, exclusive of (A) the Indebtedness evidenced by the Notes,
(B) the Indebtedness of Borrower pursuant to the FoxMeyer/NII Loan
Facility not to exceed $30,000,000, (C) the Indebtedness of Borrower
pursuant to the Riverside Loan, (D) the Weirton Liabilities, (E) the
Indebtedness of Borrower incurred in connection with investments by
any Real Estate Partnership to the extent that such Indebtedness is
wholly nonrecourse to Borrower and (F) the Indebtedness of Borrower
pursuant to the Credit Lyonnais Loan Agreement not to exceed
$20,000,000, shall not exceed $20,000,000 at any time outstanding."
iv. Amendment to Section 6.2(c) of the Agreement.
Effective as of the date hereof, subclause (B) of
clause (iii) of Section 6.2(c) of the Agreement is
hereby amended and restated to read in its entirety
as follows:
"(B) the aggregate amount of such purchases (1) during the
term of this Agreement does not exceed $41,000,000 and (2) after
September 6, 1995, does not relate to more than 562,700 shares of
common stock of Borrower,".
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v. Amendment to Section 6.2(d). Effective as of
the date hereof, Section 6.2(d) of the Agreement is
hereby amended and restated to read in its entirety
as follows:
"(d) Acquisitions. Neither Borrower, any Subsidiary of
Borrower (other than FoxMeyer and Ben Franklin) nor any group of which
Borrower or such Subsidiary is a member shall become the beneficial
owner of Securities representing five percent or more of the combined
voting power of the then-outstanding voting securities of an issuing
entity, other than currently existing Subsidiaries of Borrower, that
has a class of Securities registered with the SEC pursuant to Section
12 of the Exchange Act; provided, however, that (i) in accordance with
that certain waiver letter dated March 7, 1994, executed by Banks (the
March 7, 1994 Waiver Letter'), Borrower may acquire voting Securities
of SysteMed, Inc. subject to continued satisfaction of the conditions
specified in the March 7, 1994 Waiver Letter, (ii) in accordance with
that certain waiver letter dated June 10, 1994, executed by Banks (the
June 10, 1994 Waiver Letter'), Borrower may acquire the 'Convertible
Debenture' and the 'UNSI Conversion Shares' subject to continued
satisfaction of the conditions specified in the June 10, 1994 Waiver
Letter, (iii) in accordance with the PMLLC Agreement and the
Subscription Agreement executed by Borrower during May 1995 and
accepted by PMLLC, Borrower may acquire a 69.80% limited liability
company interest in PMLLC for $29,000,000 in cash, (iv) in accordance
with that certain Stock Purchase Agreement dated April 21, 1995, by
and among PMLLC and certain secured creditors of Phar-Mor, Inc.
("PM"), PMLLC may acquire 3,750,000 shares of common stock of PM for
$30,000,000 in cash, which number of such shares constitutes
approximately 31% of the common capital stock of PM, and (v)
substantially in accordance with the terms set forth in that certain
letter dated July 19, 1995, from Borrower to Agent, Borrower may, in
consideration of its making a $500,000 short-term, convertible secured
bridge loan to CST Entertainment, Inc. ('CST'), acquire warrants to
purchase 750,000 shares of common stock of CST, which number of such
shares, when combined with the potential number of shares into which
the bridge loan may convert, may represent up to approximately 6.25%
of the total number of shares of capital stock of CST issued and
outstanding. For purposes of thisSection 6.2(d), the term 'group'
shall mean as defined in Rule 13d-5 promulgated under the Exchange Act
and the term 'beneficial owner' shall mean as defined in Rule 13d-3
promulgated under the Exchange Act."
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vi. Amendments relating to Distribution of Ben
Franklin Shares. In connection with the anticipated
distribution to the holders of Borrower's common
stock of approximately 50% of the total number of
shares of common stock of Ben Franklin issued and
outstanding, effective as of the date hereof:
(a) the reference to "December 31, 1994" contained in clause (vii)
of Section 6.2(c) is hereby amended to mean "December 31, 1995";
(b) clause (ii) of Section 6.2(g) is hereby amended and restated
to read in its entirety as follows:
"(ii) sell, transfer, assign, encumber or otherwise dispose
of, or create or allow to be created or to otherwise exist, any Lien
upon, any of its other Assets (i.e., Assets other than Collateral or
capital stock of FoxMeyer) except for Permitted Liens, sales of such
other assets for full and fair consideration made in the ordinary
course of business or otherwise consistent with prudent business
practices, sales of capital stock of Consolidated Subsidiaries other
than FoxMeyer for full and fair consideration and distribution of
shares of common stock of Ben Franklin by Borrower to the shareholders
of Borrower in accordance with clause (vii) of Section 6.2(c)";
(c) at such time as Borrower no longer owns 50% or more of the
issued and outstanding shares of capital stock of Ben Franklin, the definition
of the term "Major Subsidiaries" in Section 1.2 is amended to delete reference
therein to "Ben Franklin"; and
(d) at such time as Borrower no longer owns 50% or more of the
issued and outstanding shares of capital stock of Ben Franklin, Sections 6.3(e)
and 6.3(g) are amended to delete references therein to "Ben Franklin".
vii. Amendment to Section 8.1 of the Agreement.
Effective as of the date hereof, a new Section 8.1(o)
is hereby added to the Agreement as an additional
Event of Default, which Section 8.1(o) shall read in
its entirety as follows:
"(o) Credit Lyonnais Default. The occurrence of a Default
as such term is defined in the Credit Lyonnais Loan Agreement."
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viii. Effect of this Amendment. The Loan Documents
(including, without limitation, the Agreement as
amended by this Amendment) shall remain in full force
and effect except that any reference in any Loan
Documents to the Agreement shall be deemed to refer
the Agreement as amended by this Amendment.
ix. Conditions Precedent. The effectiveness of
this Amendment is subject to the satisfaction of the
following conditions precedent:
(a) Agent shall have received all of the following, each dated
(unless otherwise indicated) the date of this Amendment, in form and substance
satisfactory to Agent:
(i) Borrower Resolutions. Resolutions of the
Board of Directors of Borrower certified by its Secretary or an
Assistant Secretary which authorize the execution, delivery and
performance by Borrower of this Amendment and the other Loan Documents
to which Borrower is or is to be a party hereunder;
(ii) Opinion of Counsel. A favorable opinion of
legal counsel to Borrower as to (A) the authorization, execution and
delivery of this Amendment and (B) such other matters as Agent may
reasonably request, in form and substance satisfactory to Agent;
(iii) Additional Information. Agent shall have
received such additional documents, instruments and information as
Agent or its legal counsel, Jenkens & Xxxxxxxxx, a Professional
Corporation, may request; and
(iv) Amendment Fee. An amendment fee in the amount
of $50,000.
(b) The representations and warranties contained herein and in all
other Loan Documents, as amended hereby, shall be true and correct as of the
date hereof as if made on the date hereof;
(c) No Event of Default shall have occurred and be continuing and
no event or condition shall have occurred that with the giving of notice or
lapse of time or both would be an Event of Default; and
(d) All corporate proceedings taken in connection with the
transactions contemplated by this Amendment and all other agreements,
documents, instruments executed and/or
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delivered pursuant hereto and all legal matters incident thereto, shall be
satisfactory to Agent and its legal counsel, Jenkens & Xxxxxxxxx, a
Professional Corporation.
x. Representations and Warranties. Borrower
hereby represents and warrants to Agent and Banks
that, as of the date of and after giving effect to
this Amendment, (a) all representations and
warranties set forth in the Agreement are true and
correct as if made again on and as of such date
(except to the extent that such representations and
warranties were expressly, in the Agreement, made
only in reference to a specific date), (b) no Default
or Event of Default has occurred and is continuing,
and (c) the Agreement, the Notes, the Security
Documents and the other Loan Documents (as amended by
this Amendment) are and remain legal, valid, binding
and enforceable obligations of Borrower.
xi. Phar-Mor Write-Down. Reference is made to
the definition of "EBITDA" in Section 1.2 of the
Agreement and, more specifically, to clause (a) of
such definition which reads as follows: "(a) income
(or deficit) before provision for income taxes for
such period (excluding (i) extraordinary gains and
losses and (ii) to the extent not already deducted,
income attributable to minority interests in
subsidiaries for such period) . . .". Borrower and
Banks hereby agree that, for purposes of calculating
EBITDA for the fiscal year ended March 31, 1995, the
$28,767,000 charge to income as a result of a
write-down of FoxMeyer's pre-bankruptcy Phar-Mor
receivable and associated costs to administer the
claim shall be deemed an extraordinary loss and shall
therefore be excluded for purposes of calculating
EBITDA under the Agreement during such period.
xii. GOVERNING LAW. THIS AMENDMENT AND THE OTHER
LOAN DOCUMENTS SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS AND
APPLICABLE U.S. FEDERAL LAWS.
xiii. Counterparts. This Amendment may be executed
in any number of counterparts, all of which when
taken together shall constitute one agreement, and
any of the parties hereto may execute this Amendment
by signing any such counterpart.
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xiv. NO ORAL AGREEMENTS. THIS AMENDMENT, TOGETHER
WITH THE AGREEMENT AND THE OTHER LOAN DOCUMENTS AS
WRITTEN, REPRESENT THE FINAL AGREEMENTS BETWEEN AND
AMONG THE PARTIES HERETO AND MAY NOT BE CONTRADICTED
BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT
ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN (A) BORROWER AND
(B) AGENT OR ANY BANK.
xv. Agreement Remains in Effect; No Waiver.
Except as expressly provided herein, all terms and
provisions of the Loan Documents shall remain
unchanged and in full force and effect and are hereby
ratified and confirmed. No waiver by Agent or any
Bank of any Default or Event of Default shall be
deemed to be a waiver of any other Default or Event
of Default. No delay or omission by Agent or any
Bank in exercising any power, right or remedy shall
impair such power, right or remedy or be construed as
a waiver thereof or an acquiescence therein, and no
single or partial exercise of any such power, right
or remedy shall preclude other or further exercise
thereof or the exercise of any other power, right or
remedy under the Agreement, the Loan Documents or
otherwise.
xvi. Payment of Costs, Fees and Expenses.
Borrower shall promptly pay any and all costs, fees
and expenses paid or incurred by Agent incident to
this Amendment (including, without limitation, the
fees and expenses of counsel to Agent). Concurrently
herewith, Borrower shall pay to Agent, for the pro
rata benefit of Banks, an amendment fee of $50,000.
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IN WITNESS WHEREOF, Borrower, Agent and Banks have caused this
Amendment to be executed and delivered by their duly authorized officers
effective as of the date first above written.
BORROWER:
FOXMEYER HEALTH CORPORATION,
(f/k/a National Intergroup, Inc.)
By:
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Name:
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Title:
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AGENT:
BANQUE PARIBAS, as Agent for Banks
By:
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Name:
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Title:
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By:
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Name:
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Title:
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BANKS:
BANQUE PARIBAS
By:
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Name:
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Title:
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By:
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Name:
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Title:
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CREDIT LYONNAIS NEW YORK BRANCH
By:
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Name:
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Title:
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