EXHIBIT 10-X
FIRST AMENDMENT TO
CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT is made and dated as of
September 30, 1999 (the "First 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 Administrative Agent (the
"Agent"), and amends that certain Credit Agreement dated as of April 23, 1999
(as 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 First Amendment:
3.1 Authorization. The execution, delivery and performance by each of
the Borrowers of this First Amendment has been duly authorized by all necessary
corporate action by each of them, and this First Amendment has been duly
executed and delivered by the Borrowers.
3.2 Binding Obligation. This First 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 First Amendment. The execution, delivery and
performance of this First 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 First 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 First
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
First 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 First 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 First 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 First 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 First 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 First 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 First
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 Administrative 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
WACHOVIA BANK, N.A.
By:/s/Xxxx Xxxx
Name:Xxxx Xxxx
Title:Vice President
ABN AMRO BANK N.V.
By: /s/Xxxx X. Xxxxxxx
Name:Xxxx X. Xxxxxxx
Title:Group Vice President
By: /s/Xxxxxx Xxxxxx
Name:Xxxxxx Xxxxxx
Title:Vice President
BANK OF MONTREAL
By:
Name:
Title:
FIRST UNION NATIONAL BANK
By:/s/Xxxxxxx X. Xxxxxxx
Name:Xxxxxxx X. Xxxxxxx
Title:Vice President
BANCA NAZIONALE DEL
LAVORO S.p.A. - NEW YORK
BRANCH
By:
Name:
Title:
BANCA POPULAR DE PUERTO RICO
By:
Name:
Title:
BANK OF HAWAII
By: /s/Xxxxx X. Xxxxx
Name:Xxxxx X. Xxxxx
Title:Vice President
THE BANK OF NEW YORK
By:/s/Xxxxxxx X. Xxxxxx
Name:Xxxxxxx X. Xxxxxx
Title:Vice President
THE BANK OF NOVA SCOTIA
By: /s/X.X. Xxxxxxxx
Name:X.X. Xxxxxxxx
Title:Relationship Manager
FLEET NATIONAL BANK
By:
Name:
Title:
MELLON BANK, N.A.
By:
Name:
Title:
NATIONAL CITY BANK OF PENNSYLVANIA
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
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
THE FIFTH THIRD BANK
By:/s/Xxxxx X. Xxxxxx
Name:Xxxxx X. Xxxxxx
Title:Asst. Cashier
BANCA DI ROMA-SAN FRANCISCO
By:/s/Xxxxxxx X. Xxxxx
Name:Xxxxxxx X. Xxxxx
Title:
By:/s/Xxxxxx X. Xxxxxxxx
Name:Xxxxxx X. Xxxxxxxx
Title:
VIA BANQUE
By:
Name:
Title:
SECOND AMENDMENT TO
CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT is made and dated as of
December 13, 1999 (the "Second 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 Credit Agreement referred to below,
and BANK OF AMERICA, NATIONAL ASSOCIATION, a national banking association, as
Administrative Agent (the "Agent"), and amends that certain Credit Agreement
dated as of April 23, 1999, as amended by that certain First Amendment to 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 Second Amendment:
3.1. Authorization. The execution, delivery and performance by each of
the Borrowers of this Second Amendment has been duly authorized by all necessary
corporate action by each of them, and this Second Amendment has been duly
executed and delivered by the Borrowers.
3.2. Binding Obligation. This Second 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 Second Amendment. The execution, delivery
and performance of this Second 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 Second 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 Second
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
Second 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. Amendment Fees. Payment to the Agent, for the pro rata benefit of
each Lender approving this Second 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 Second Amendment by such time; and payment of all
other fees and expenses of the Agent in connection with this Second 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 Second 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 Second 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 Second 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 Second 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 Second 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 Second
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
PHARMERICA, INC.
By: /s/ Milan A. Sawdei
Name: Milan A. Sawdei
Title: Executive Vice President
BANK OF AMERICA, NATIONAL
ASSOCIATION, as Administrative
Agent
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Vice President
BANK OF AMERICA, NATIONAL
ASSOCIATION
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
WACHOVIA BANK, N.A.
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
ABN AMRO BANK N.V.
By: /s/ Xxxx X. Xxxxxxx /s/ Xxxxx Xxxxxx
Name: Xxxx X. Xxxxxxx Xxxxx Xxxxxx
Title: Group Vice Pres. Vice Pres.
BANK OF MONTREAL
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
FIRST UNION NATIONAL BANK
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Senior Vioe 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
BANCA POPULAR DE PUERTO RICO
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Senior Vice President
BANK OF HAWAII
By: /s/Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President
THE BANK OF NEW YORK
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA
By:
Name:
Title:
FLEET NATIONAL BANK
By: /s/ Xxxxx Xxxxx Castle
Name: Xxxxx Xxxxx Castle
Title: Senior Vice President
MELLON BANK, N.A.
By: /s/ X. X. Xxxx
Name: X. X. Xxxx
Title: Vice President
NATIONAL CITY BANK OF
PENNSYLVANIA
By: /s/ Xxxxx X. Arampa
Name: Xxxxx X. Arampa
Title: Vice President and
Regional Manager
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
XXXXX FARGO BANK, N.A.
By: /s/ Xxxxxxxxx Xxxxxxx /s/ Xxxxxx Xxxxxxx
Name: Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxx
Title: Vice President Vice President
THE FIFTH THIRD BANK
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Assistant Cashier
BANCA DI ROMA-SAN FRANCISCO
By: /s/ Xxxxxxx Barolo /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxxx Barolo Xxxxxx X. Xxxxxxxx
Title:
VIA BANQUE
By: /s/ C. Prot /s/ X.X. Xxxxx
Name: C. Prot X.X. Xxxxx
Title:
