EXHIBIT 10-W
FIFTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT is made
and dated as of September 30, 1999 (the "Fifth Amendment") among BERGEN XXXXXXXX
DRUG COMPANY, a California corporation (the "Borrower" or "Bergen Drug"), BERGEN
XXXXXXXX CORPORATION, a New Jersey corporation (the "Parent"), PHARMERICA, INC.,
a Delaware corporation ("PharMerica"; PharMerica, the Parent and Bergen Drug are
collectively called the "Borrowers"), the Lenders party to the Amended and
Restated Credit Agreement referred to below, and BANK OF AMERICA, NATIONAL
ASSOCIATION, a national banking association, as Agent (the "Agent"), and amends
that certain Amended and Restated Credit Agreement dated as of September 30,
1994, as amended by that certain First Amendment to Amended and Restated Credit
Agreement dated as of February 27, 1995, by that certain Second Amendment to
Amended and Restated Credit Agreement dated as of March 15, 1996, by that
certain Third Amendment to Amended and Restated Credit Agreement dated as of
October 23, 1998 and by that certain Fourth Amendment to Amended and Restated
Credit Agreement dated as of April 23, 1999 (as so amended or modified from time
to time, the "Credit Agreement").
RECITALS
WHEREAS, the Borrowers have requested the Agent and the Lenders to
amend the Credit Agreement to provide that up to $300,000,000 of receivables may
be sold in a Permitted Receivables Transaction (as defined in the Credit
Agreement), and the Agent and the Required Lenders are willing to do so, on the
terms and conditions specified herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereby agree as follows:
1. Terms. All terms used herein shall have the same meanings as in the
Credit Agreement unless otherwise defined herein. All references to the Credit
Agreement shall mean the Credit Agreement as hereby amended.
2. Amendment. The Borrowers, the Agent and the Lenders hereby agree
that the definition of the term "Permitted Receivables Transaction" in Schedule
I to the Credit Agreement shall be amended and restated to read in its entirety
as follows:
"Permitted Receivables Transaction" means any agreement of the
Parent or any of its Subsidiaries providing for sales, transfers or
conveyances of up to $300,000,000 of receivables purporting to be sales
(and considered sales under GAAP).
3. Representations and Warranties. The Borrowers each represent and
warrant to the Agent and the Lenders that, on and as of the date hereof and as
of the date the conditions set forth in Section 4 hereof shall have been
satisfied, and after giving effect to this Fifth Amendment:
3.1 Authorization. The execution, delivery and performance by
each of the Borrowers of this Fifth Amendment has been duly authorized by all
necessary corporate action by each of them, and this Fifth Amendment has been
duly executed and delivered by the Borrowers.
3.2 Binding Obligation. This Fifth Amendment constitutes the
legal, valid and binding obligations of the Borrowers, enforceable against each
of them respectively in accordance with its terms.
3.3 No Legal Obstacle to Fifth Amendment. The execution,
delivery and performance of this Fifth Amendment will not (a) contravene the
Organic Documents of any of the Borrowers; (b) constitute a breach or default
under any contractual restriction or violate or contravene any law or
governmental regulation or court decree or order binding on or affecting any of
the Borrowers which individually or in the aggregate does or could reasonably be
expected to have a Materially Adverse Effect; or (c) result in, or require the
creation or imposition of, any Lien on any Borrower's properties. No approval or
authorization of any governmental authority or regulatory body or other Person
is required to permit the execution, delivery or performance by the Borrowers of
this Fifth Amendment, or the transactions contemplated hereby.
3.4 Incorporation of Certain Representations. The
representations and warranties of the Borrowers set forth in Article VI of the
Credit Agreement are true and correct in all respects on and as of the date
hereof as though made on and as of the date hereof, except as to such
representations made as of an earlier specified date.
3.5 Default. No Default or Event of Default has occurred and
is continuing.
4. Conditions, Effectiveness. The effectiveness of this Fifth Amendment
shall be subject to the compliance by the Borrowers with their agreements herein
contained, and the following:
4.1 Counterparts. The delivery to the Agent of counterparts of
this Fifth Amendment executed by the Borrowers, the Required Lenders and the
Agent.
4.2 Resolutions, etc. The Agent shall have received from each
of the Borrowers a certificate, dated as of the date hereof, of its Secretary or
Assistant Secretary as to:
(a) resolutions of its Board of Directors then in full force
and effect authorizing the execution, delivery and performance of this
Agreement and each other Credit Document to be executed by it; and
(b) the incumbency and signatures of those of its officers
authorized to act with respect to this Agreement and each other Credit
Document executed by it,
upon which certificate each Lender may conclusively rely until it shall have
received a further certificate of the Secretary or an Assistant Secretary of
each of the Borrowers canceling or amending such prior certificate.
4.3 Other Evidence. The delivery to the Agent of such other
evidence with respect to the Borrowers or any other person as the Agent or any
Lender may reasonably request in connection with this Fifth Amendment and the
compliance with the conditions set forth herein.
5. Miscellaneous.
5.1 Effectiveness of the Credit Agreement and the Notes.
Except as hereby expressly amended, the Credit Agreement, the Notes and the
other Credit Documents shall each remain in full force and effect, and are
hereby ratified and confirmed in all respects on and as of the date hereof.
5.2 Waivers. This Fifth Amendment is limited solely to the
matters expressly set forth herein and is specific in time and in intent and
does not constitute, nor should it be construed as, a waiver or amendment of any
other term or condition, right, power or privilege under the Credit Agreement or
under any agreement, contract, indenture, document or instrument mentioned
therein; nor does it preclude or prejudice any rights of the Agent or the
Lenders thereunder, or any exercise thereof or the exercise of any other right,
power or privilege, nor shall it require any of the Lenders to agree to an
amendment, waiver or consent for a similar transaction on a future occasion, nor
shall any future waiver of any right, power, privilege or default hereunder, or
under any agreement, contract, indenture, document or instrument mentioned in
the Credit Agreement, constitute a waiver of any other right, power, privilege
or default of the same or of any other term or provision.
5.3 Counterparts. This Fifth Amendment may be executed in any
number of counterparts and all of such counterparts taken together shall be
deemed to constitute one and the same instrument. This Fifth Amendment shall not
become effective until the Borrowers, the Agent and the Required Lenders shall
have signed a copy hereof, the same shall have been delivered to the Agent and
the conditions set forth in Section 5 hereof shall have been satisfied.
5.4 Governing Law. This Fifth Amendment shall be governed by
and construed in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Fifth Amendment
to be duly executed and delivered as of the date first written above.
BERGEN XXXXXXXX DRUG COMPANY
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: V.P. Finance & Treasurer
BERGEN XXXXXXXX CORPORATION
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: V.P. Finance & Treasurer
PHARMERICA, INC.
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: V.P. Finance & Treasurer
BANK OF AMERICA,
NATIONAL ASSOCIATION,
as Agent
By: /s/Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Vice President
By: /s/Xxxxxxx Xxxx Xxxxx
Name:Xxxxxxx Xxxx Xxxxx
Title:Managing Director
BANK OF AMERICA,
NATIONAL ASSOCIATION
By:
Name:
Title:
THE CHASE MANHATTAN BANK
By:/s/Xxxx Xxx Xxx
Name:Xxxx Xxx Xxx
Title:Vice President
PNC BANK, N.A.
By:
Name:
Title:
WACHOVIA BANK, N.A.
By: /s/Xxxx Xxxx
Name: Xxxx Xxxx
Title:Vice President
THE BANK OF NEW YORK
By: /s/Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
FIRST UNION NATIONAL BANK
By: /s/Xxxxxxx X. Xxxxxxx
Name:Xxxxxxx X. Xxxxxxx
Title:Vice President
XXXXX FARGO BANK, N.A.
By:/s/Xxxxxx X. Xxxxxxxx
Name:Xxxxxx X. Xxxxxxxx
Title:Sr. Vice President
By:/s/Xxxxxxxxx X. Xxxxxxx
Name:Xxxxxxxxx X. Xxxxxxx
Title:Vice President
TORONTO DOMINION (TEXAS), INC.
By:
Name:
Title:
THE NORTHERN TRUST COMPANY
By: /s/Xxxxx X. Xxxxxxxx
Name:Xxxxx X. Xxxxxxxx
Title:Vice President
SUNTRUST BANK,
CENTRAL FLORIDA, N.A.
By:/s/Xxxxxxx X. Xxxxxxxx, Xx.
Name:Xxxxxxx X. Xxxxxxxx, Xx.
Title:Vice President
ABN-AMRO BANK, N.V.,
LOS ANGELES BRANCH
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Group Vice Pres.
By: /s/Xxxxxx Xxxxxx
Name:Xxxxxx Xxxxxx
Title:Vice President
CIBC INC.
By:
Name:
Title:
UNION BANK OF CALIFORNIA
By: /s/J. Xxxxx Xxxxxx
Name: J. Xxxxx Xxxxxx
Title:Vice President
BANCA DI ROMA
By:/s/Xxxxxxx X. Xxxxx
Name:Xxxxxxx X. Xxxxx
Title:
By:/s/Xxxxxx X. Xxxxxxxx
Name:Xxxxxx X. Xxxxxxxx
Title:
MELLON BANK
By:
Name:
Title:
BANCA NAZIONALE DEL
LAVORA S.p.A. - NEW YORK
BRANCH
By:
Name:
Title:
SIXTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT is made
and dated as of December 13, 1999 (the "Sixth Amendment") among BERGEN XXXXXXXX
DRUG COMPANY, a California corporation ("Bergen Drug"), BERGEN XXXXXXXX
CORPORATION, a New Jersey corporation (the "Parent"), PHARMERICA, INC., a
Delaware corporation ("PharMerica"; PharMerica, the Parent and Bergen Drug are
collectively called the "Borrowers"), the Lenders party to the Amended and
Restated Credit Agreement referred to below, and BANK OF AMERICA, N.A., a
national banking association, as Agent (the "Agent"), and amends that certain
Amended and Restated Credit Agreement dated as of September 30, 1994, as amended
by that certain First Amendment to Amended and Restated Credit Agreement dated
as of February 27, 1995, by that certain Second Amendment to Amended and
Restated Credit Agreement dated as of March 15, 1996, by that certain Third
Amendment to Amended and Restated Credit Agreement dated as of October 23, 1998,
by that certain Fourth Amendment to Amended and Restated Credit Agreement dated
as of April 23, 1999 and by that certain Fifth Amendment to Amended and Restated
Credit Agreement dated as of September 30, 1999 (as so amended or modified from
time to time, the "Credit Agreement").
RECITALS
WHEREAS, the Borrowers have requested the Agent and the Lenders to
amend the Credit Agreement, and the Agent and the Required Lenders are willing
to do so, on the terms and conditions specified herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereby agree as follows:
1. Terms. All terms used herein shall have the same meanings as in the
Credit Agreement unless otherwise defined herein. All references to the Credit
Agreement shall mean the Credit Agreement as hereby amended.
2. Amendment. The Borrowers, the Agent and the Lenders hereby agree as
follows:
2.1. Amendments to Schedule I.
(a) The definition of the term "EBIT" in Schedule I to the Credit
Agreement shall be amended and restated to read in its entirety as follows:
"EBIT" means, for any period, consolidated earnings of the Parent and
its Subsidiaries for such period before interest and taxes
(including, without limitation and without duplication, all interest
paid by the Parent under its subordinated debt securities issued to
the Trusts and all payments by the Parent of dividends and
distributions with respect to the Guaranteed Preferred Securities),
before up to $93,000,000 of certain non-cash charges taken by the
Borrower in its Fiscal Quarter ending September 30, 1998, before up to
$53,700,000 of one-time, non-recurring charges taken in its Fiscal
Quarter ending September 30, 1999 in connection with the write-down of
certain accounts receivable, and before up to $50,000,000 of
extraordinary, non-cash charges in any Fiscal Year thereafter
associated with acquisitions.
(b) The definition of the term "Permitted Receivables Transaction" in
Schedule I to the Credit Agreement shall be amended and restated to read in its
entirety as follows:
"Permitted Receivables Transaction" means (i) any agreement of
the Parent or any of its Subsidiaries providing for sales, transfers
or conveyances of receivables purporting to be sales that do not
provide, directly or indirectly, for recourse against the seller of
such receivables (or against any of such seller's Affiliates) by way
of a guaranty or any other support arrangement, with respect to the
collectibility of such receivables (based on the financial condition
or circumstances of the obligor thereunder), other than such limited
recourse as is reasonable given market standards for transactions of a
similar type, taking into account such factors as historical bad debt
loss experience and obligor concentration levels; provided, that the
sum of the net investment of the ultimate purchaser in such
receivables and the amount of Indebtedness outstanding under clause
(ii) hereof does not at any time exceed $400,000,000 or (ii) any
credit facility of the Parent or any of its Subsidiaries that is
secured by receivables of the Parent and its Subsidiaries and the
proceeds thereof; provided, that the sum of the aggregate principal
amount of the Indebtedness so secured and the net investment of the
ultimate purchaser under clause (i) hereof shall not at any time
exceed $400,000,000 and provided, further that the maturity date of
any such credit facility shall not extend beyond January 31, 2000.
2.2. Amendments to Section 7.2.1. Clause (h) of Section 7.2.1 of the
Credit Agreement is hereby amended and restated to read in its entirety as
follows:
(h) Indebtedness in respect of any Permitted Receivables Transaction;
2.3. Amendments to Section 7.2.3. Clause (c) of Section 7.2.3 of the
Credit Agreement is hereby amended and restated to read in its entirety as
follows:
(c) its Interest Coverage Ratio on the last day of any Fiscal Quarter
set forth below to be less than the ratio set forth opposite such date:
Date Ratio
December 31, 1999 2.25:1.0
March 31, 2000 2.10:1.0
June 30, 2000 and thereafter 3.0:1.0
3. Representations and Warranties. The Borrowers each represent and
warrant to the Agent and the Lenders that, on and as of the date hereof and as
of the date the conditions set forth in Section 4 hereof shall have been
satisfied, and after giving effect to this Sixth Amendment:
3.1. Authorization. The execution, delivery and performance by
each of the Borrowers of this Sixth Amendment has been duly authorized by all
necessary corporate action by each of them, and this Sixth Amendment has been
duly executed and delivered by the Borrowers.
3.2. Binding Obligation. This Sixth Amendment constitutes the
legal, valid and binding obligations of the Borrowers, enforceable against each
of them respectively in accordance with its terms.
3.3. No Legal Obstacle to Sixth Amendment. The execution,
delivery and performance of this Sixth Amendment will not (a) contravene the
Organic Documents of any of the Borrowers; (b) constitute a breach or default
under any contractual restriction or violate or contravene any law or
governmental regulation or court decree or order binding on or affecting any of
the Borrowers which individually or in the aggregate does or could reasonably be
expected to have a Materially Adverse Effect; or (c) result in, or require the
creation or imposition of, any Lien on any Borrower's properties. No approval or
authorization of any governmental authority or regulatory body or other Person
is required to permit the execution, delivery or performance by the Borrowers of
this Sixth Amendment, or the transactions contemplated hereby.
3.4. Incorporation of Certain Representations. Except for various
class action lawsuits that have been filed against the Parent as a result of the
acquisitions of PharMerica and Xxxxxxxxxxx, the representations and warranties
of the Borrowers set forth in Article VI of the Credit Agreement are true and
correct in all respects on and as of the date hereof as though made on and as of
the date hereof, except as to such representations made as of an earlier
specified date.
3.5. Default. No Default or Event of Default has occurred and is
continuing.
4. Conditions, Effectiveness. The effectiveness of this Sixth
Amendment shall be subject to the compliance by the Borrowers with their
agreements herein contained, and the following:
4.1. Counterparts. The delivery to the Agent of counterparts of
this Sixth Amendment executed by the Borrowers, the Required Lenders and the
Agent.
4.2. Resolutions, etc. The Agent shall have received from each of
the Borrowers a certificate, dated as of the date hereof, of its Secretary or
Assistant Secretary as to:
(1) resolutions of its Board of Directors then in full force and
effect authorizing the execution, delivery and performance of this Agreement and
each other Credit Document to be executed by it; and
(2) the incumbency and signatures of those of its officers
authorized to act with respect to this Agreement and each other Credit Document
executed by it,
upon which certificate each Lender may conclusively rely until it shall have
received a further certificate of the Secretary or an Assistant Secretary of
each of the Borrowers canceling or amending such prior certificate.
4.3. Amendment Fees. Payment to the Agent, for the pro rata
benefit of each Lender approving this Sixth Amendment on or before 3:00 p.m.,
Eastern Standard Time, on December 13, 1999, of an amendment fee in an amount
equal to .35% of the aggregate amount of the Commitments held by the Lenders
that have executed and delivered this Sixth Amendment by such time; and payment
of all other fees and expenses of the Agent in connection with this Sixth
Amendment (including, without limitation, the fees and expenses of the counsel
to the Agent).
4.4. Other Evidence. The delivery to the Agent of such other
evidence with respect to the Borrowers or any other person as the Agent or any
Lender may reasonably request in connection with this Sixth Amendment and the
compliance with the conditions set forth herein.
5. Miscellaneous.
5.1. Effectiveness of the Credit Agreement and the Notes. Except
as hereby expressly amended, the Credit Agreement, the Notes and the other
Credit Documents shall each remain in full force and effect, and are hereby
ratified and confirmed in all respects on and as of the date hereof.
5.2. Waivers. This Sixth Amendment is limited solely to the
matters expressly set forth herein and is specific in time and in intent and
does not constitute, nor should it be construed as, a waiver or amendment of any
other term or condition, right, power or privilege under the Credit Agreement or
under any agreement, contract, indenture, document or instrument mentioned
therein; nor does it preclude or prejudice any rights of the Agent or the
Lenders thereunder, or any exercise thereof or the exercise of any other right,
power or privilege, nor shall it require any of the Lenders to agree to an
amendment, waiver or consent for a similar transaction on a future occasion, nor
shall any future waiver of any right, power, privilege or default hereunder, or
under any agreement, contract, indenture, document or instrument mentioned in
the Credit Agreement, constitute a waiver of any other right, power, privilege
or default of the same or of any other term or provision.
5.3. Counterparts. This Sixth Amendment may be executed in any
number of counterparts and all of such counterparts taken together shall be
deemed to constitute one and the same instrument. This Sixth Amendment shall not
become effective until the Borrowers, the Agent and the Required Lenders shall
have signed a copy hereof, the same shall have been delivered to the Agent and
the conditions set forth in Section 5 hereof shall have been satisfied.
5.4. Governing Law. This Sixth Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Sixth
Amendment to be duly executed and delivered as of the date first written above.
BERGEN XXXXXXXX DRUG COMPANY
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Vice President
Finance & Treasurer
BERGEN XXXXXXXX CORPORATION
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Vice President
Finance & Treasurer
BANK OF AMERICA, N.A., as Agent
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Vice President
BANK OF AMERICA, N.A.
By: /s/ Xxxxxxx Xxxx Xxxxx
Name: Xxxxxxx Xxxx Xxxxx
Title: Managing Director
THE CHASE MANHATTAN BANK
By: /s/ Xxxx Xxx Lun
Name: Xxxx Xxx Lun
Title: Vice Presaident
PNC BANK, N.A.
By:
Name:
Title:
WACHOVIA BANK, N.A.
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
THE BANK OF NEW YORK
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
FIRST UNION NATIONAL BANK
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Senior Vioe President
XXXXX FARGO BANK, N.A.
By: /s/ Xxxxxxxxx Xxxxxxx /s/Xxxxxx Xxxxxxx
Name: Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxx
Title: Vice President Vice President
TORONTO DOMINION (TEXAS), INC.
By: /s/ Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: Vice President
THE NORTHERN TRUST COMPANY
By: /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
SUNTRUST BANK, CENTRAL
FLORIDA, N.A.
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Vice President
ABN-AMRO BANK, N.V.,
LOS ANGELES BRANCH
By: /s/ Xxxx X. Xxxxxxx /s/Xxxxx Xxxxxx
Name: Xxxx X. Xxxxxxx Xxxxx Xxxxxx
Title: Group Vice Pres. Vice President
CIBC INC.
By: /s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title: Executive Director
CIBC World Markets Corp.,
as agent
UNION BANK OF CALIFORNIA
By: /s/ J. Xxxxx Xxxxxx
Name: J. Xxxxx Xxxxxx
Title: Vice President
BANCA DI ROMA
By: /s/ Xxxxxxx Barolo /s/Xxxxxx X.Xxxxxxxx
Name: Xxxxxxx Barolo Xxxxxx X. Xxxxxxxx
Title:
MELLON BANK, N.A.
By: /s/ X. X. Xxxx
Name: X. X. Xxxx
Title: Vice President
BANCA NAZIONALE DEL LAVORO
S.P.A. - NEW YORK BRANCH
By: /s/ Xxxxxxx Xxxxxxx /s/Xxxxxxxx Xxxxxxxxx
Name: Xxxxxxx Xxxxxxx Xxxxxxxx Xxxxxxxxx
Title: Senior Loan Officer First Vice President
