Amendment and Waiver to Credit Agreement among AmerisourceBergen Corporation, Lenders, and JPMorgan Chase Bank (November 25, 2002)

Summary

This agreement amends and waives certain provisions of a prior Credit Agreement dated August 29, 2001, between AmerisourceBergen Corporation, its subsidiaries, various lenders, and JPMorgan Chase Bank as Administrative Agent. The amendment updates the definition of "Collateral" and waives a specific covenant to allow changes to receivables securitization facilities following a merger of AmerisourceBergen’s subsidiaries. The waiver is limited to the specified amendments, and all other terms of the original Credit Agreement remain in effect. The agreement is effective upon satisfaction of certain conditions and is governed by New York law.

EX-4.20 3 dex420.htm AMENDMENT AND WAIVER, DATED NOVEMBER 25, 2002 Amendment and Waiver, dated November 25, 2002

EXHIBIT 4.20

 

EXECUTION VERSION

 

AMENDMENT AND WAIVER dated as of November 25, 2002 (this “Amendment and Waiver”), to the CREDIT AGREEMENT dated as of August 29, 2001 (the “Credit Agreement”), among AMERISOURCEBERGEN CORPORATION (the “Borrower”); the LENDERS from time to time party thereto; JPMORGAN CHASE BANK (f/k/a The Chase Manhattan Bank), as Administrative Agent (in such capacity, the “Administrative Agent”), as an Issuing Bank and as Swingline Lender and to the SECURITY AGREEMENT referred to therein.

 

In connection with the merger effective as of October 1, 2002 of the Borrower’s subsidiaries AmeriSource Health Corporation and Bergen Brunswig Corporation (collectively, the “Operating Subsidiaries”), certain of the distribution centers of the Operating Subsidiaries will be consolidated and in connection therewith, the Operating Subsidiaries will enter into amendments to certain receivables securitization facilities (the “Securitization Amendments”). The Borrower has requested that the Lenders amend the definition of “Collateral” contained in the Security Agreement (as defined in the Credit Agreement) and waive Section 6.11 of the Credit Agreement in order to permit the Securitization Amendments substantially in the form attached as Exhibits A and B hereto, and the undersigned Lenders, representing the Required Lenders, are willing so to amend such definition and waive Section 6.11 of the Credit Agreement on the terms and subject to the conditions set forth herein. Capitalized terms used but not defined herein shall have the meanings assigned to them in the Credit Agreement.

 

Accordingly, in consideration of the mutual agreements herein contained and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto agree as follows:

 

SECTION 1. Amendment. The definition of the term “Collateral” contained in the Security Agreement is amended by deleting from clauses (vi) and (vii) thereof the words “on the date hereof” and replacing them with the words “as of December 2, 2002”.

 

SECTION 2. Amendment and Waiver. The Lenders hereby waive compliance with Section 6.11 of the Credit Agreement to the extent, and only to the extent, necessary to permit amendments substantially in the forms attached as Exhibit A and Exhibit B to the agreements governing the Securitizations referred to in Exhibit A and Exhibit B.

 

SECTION 3. Representations and Warranties. The Borrower represents and warrants to the Lenders as of the date hereof that:

 

(a) Before and after giving effect to this Amendment and Waiver, the representations and warranties set forth in the Credit Agreement are true and correct in all material respects with the same effect as if made on the Effective Date (as defined in Section 4), except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties are true and correct in all material respects as of such earlier date.


(b) At the time of and after giving effect this Amendment and Waiver, no Default has occurred and is continuing.

 

SECTION 4. Conditions to Effectiveness. This Amendment and Waiver shall become effective as of the date first written above (the “Effective Date”) at such time as each of the following conditions is satisfied (or waived in accordance with Section 9.02 of the Credit Agreement):

 

(a) The Administrative Agent (or its counsel) shall have received from the Borrower, the Required Lenders and the Administrative Agent either (i) counterparts of this Amendment and Waiver signed on behalf of such parties or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature pages of this Amendment and Waiver) that such parties have signed counterparts of this Amendment and Waiver.

 

(b) The Administrative Agent (or its counsel) shall have received such copies of each Securitization Amendment, certified by the President, a Vice President or a Financial Officer of the Borrower.

 

The Administrative Agent shall notify the Borrower and the Lenders in writing of the Effective Date, and such notice shall be conclusive and binding.

 

SECTION 5. Effect of Amendment and Waiver. Except as expressly set forth herein, this Amendment and Waiver shall not by implication or otherwise limit, impair, constitute a Amendment and Waiver of, or otherwise affect the rights and remedies of the Lenders, the Administrative Agent or the Borrower under the Credit Agreement or any other Loan Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other Loan Document, all of which are ratified and affirmed in all respects and shall continue in full force and effect. Nothing herein shall be deemed to entitle the Borrower to a consent to, or an Amendment and Waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other Loan Document in similar or different circumstances. This Amendment and Waiver shall apply and be effective only with respect to the provisions of the Credit Agreement specifically referred to herein. This Amendment and Waiver shall constitute a “Loan Document” under the Credit Agreement.

 

SECTION 6. Expenses. The Borrower hereby agrees to reimburse the Administrative Agent for its out-of-pocket expenses in connection with this Amendment and Waiver, including the reasonable fees, charges and disbursements of Cravath, Swaine & Moore, counsel for the Administrative Agent.

 

SECTION 7. Counterparts. This Amendment and Waiver may be executed in any number of counterparts and by different parties hereto on separate counterparts, each of which when so executed and delivered shall be deemed an original, but all of which when taken together shall constitute a single instrument. Delivery of an

 

2


executed counterpart of a signature page of this Amendment and Waiver by facsimile transmission shall be as effective as delivery of a manually executed counterpart hereof.

 

SECTION 8. Applicable Law. THIS AMENDMENT AND WAIVER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

 

SECTION 9. Headings. The headings of this Amendment and Waiver are for purposes of reference only and shall not limit or otherwise affect the meaning hereof.

 

IN WITNESS WHEREOF, the parties hereto have caused this Amendment and Waiver to be duly executed by their duly authorized officers, all as of the date and year first above written.

 

3


AMERISOURCEBERGEN CORPORATION,

    by

       
   

/s/    J. F. Quinn


   

Name:

 

J. F. Quinn

   

Title:

 

Vice President and Corporate Treasurer

ASD SPECIALTY HEALTHCARE, INC.,

AMERISOURCEBERGEN SERVICES CORPORATION,

AMERISOURCEBERGEN DRUG CORPORATION,

AMERISOURCE HEALTH SERVICES CORPORATION,

AUTOMED TECHNOLOGIES, INC.,

HEALTH SERVICES CAPITAL CORPORATION,

JAMES BRUDNICK COMPANY, INC.,

    by

       
   

/s/    J. F. Quinn


   

Name:

 

J. F. Quinn

   

Title:

 

Vice President and Corporate Treasurer

AMERISOURCE HERITAGE CORPORATION,

    by

       
   

/s/    Daniel T. Hirst


   

Name:

 

Daniel T. Hirst

   

Title:

 

Vice President

PHARMACY HEALTHCARE SOLUTIONS, LTD.,

By VALUE APOTHECARIES, INC., its

General Partner,

    by

       
   

/s/    William D. Sprague


   

Name:

 

William D. Sprague

   

Title:

 

Vice President

 

4


ALLIANCE HEALTH SERVICES, INC.,

BBC PACKING CORPORATION,

BROWNSTONE PHARMACY, INC.,

DUNNINGTON DRUG, INC.,

DUNNINGTON RX SERVICES OF RHODE ISLAND, INC.,

ION, LLC,

PHARMACY CORPORATION OF AMERICA-MASSACHUSETTS, INC.,

PHARMACY CORPORATION OF AMERICA,

PHARMERICA DRUG SYSTEMS, INC.,

PHARMERICA, INC.,

RIGHTPAK, INC.,

TMESYS, INC.,

    by

       
   

/s/    William D. Sprague


   

Name:

 

William D. Sprague

   

Title:

 

Vice President

JPMORGAN CHASE BANK (f/k/a The Chase Manhattan Bank), individually, and as Administrative Agent, Collateral Agent, Issuing Bank and Swingline Lender,

    by

       
   

/s/    Dawn Lee Lum


   

Name:

 

Dawn Lee Lum

   

Title:

 

Vice President

WACHOVIA BANK, NATIONAL ASSOCIATION (as successor by merger to First Union National Bank)

    by

       
   

/s/    Jeanette A. Griffin


   

Name:

 

Jeanette A. Griffin

   

Title:

 

Vice President

THE BANK OF NOVA SCOTIA

    by

       
   

/s/    Carolyn A. Calloway


   

Name:

 

Carolyn A. Calloway

   

Title:

 

Managing Director

 

5


SCOTIABANC, INC.

    by

       
   

/s/    Dana Maloney


   

Name:

 

Dana Maloney

   

Title:

 

Relationship Manager

CREDIT SUISSE FIRST BOSTON

    by

       
   

/s/    Christopher Lally


   

Name:

 

Christopher Lally

   

Title:

 

Vice President

FLEET NATIONAL BANK

    by

       
   

/s/    Roger C. Boucher


   

Name:

 

Roger C. Boucher

   

Title:

 

Director

MIZUHO CORPORATE BANK

    by

       
   

/s/    Kentaro Akashi


   

Name:

 

Kentaro Akashi

   

Title:

 

Deputy General Manager

BANK OF AMERICA, N.A.

    by

       
   

/s/    Phillip S. Durand


   

Name:

 

Phillip S. Durand

   

Title:

 

Managing Director

GENERAL ELECTRIC CAPITAL CORPORATION

    by

       
   

/s/    Brian B. Schwinn


   

Name:

 

Brian B. Schwinn

   

Title:

 

Duly Authorized Signatory

 

6


CREDIT LYONNAIS NEW YORK BRANCH

    by

       
   

/s/    Charles Heidsieck


   

Name:

 

Charles Heidsieck

   

Title:

 

Senior Vice President

WELLS FARGO BANK, N.A.

    by

       
   

/s/    Peitty Chou


   

Name:

 

Peitty Chou

   

Title:

 

Vice President

ALLFIRST BANK

    by

       
   

/s/    Theodore K. Oswald


   

Name:

 

Theodore K. Oswald

   

Title:

 

Vice President

RZB FINANCE, L.L.C.

    by

       
   

/s/    John A. Valiska


   

Name:

 

John A. Valiska

   

Title:

 

Group Vice President

    by

       
   

/s/    Frank J. Yautz


   

Name:

 

Frank J. Yautz

   

Title:

 

First Vice President

NATIONAL BANK OF KUWAIT, S.A.K.,

GRAND CAYMAN BRANCH

    by

       
   

/s/    Muhannad Kamal


   

Name:

 

Muhannad Kamal

   

Title:

 

General Manager

    by

       
   

/s/    Robert McNeill


   

Name:

 

Robert McNeill

   

Title:

 

Executive Manager

 

7


UNITED WORLD CHINESE COMMERCIAL BANK

    by

       
   

/s/    Robert Wang


   

Name:

 

Robert Wang

   

Title:

 

VP and General Manager

BANK OF COMMUNICATIONS, NEW YORK BRANCH

    by

       
   

/s/    Decai Li


   

Name:

 

Decai Li

   

Title:

 

General Manager

WINGED FOOT FUNDING TRUST

    by

       
   

/s/    Ann E. Morris


   

Name:

 

Ann E. Morris

   

Title:

 

Authorized Agent

JUPITER LOAN FUNDING LLC

    by

       
   

/s/    Ann E. Morris


   

Name:

 

Ann E. Morris

   

Title:

 

Authorized Agent

KZH CNC LLC

    by

       
   

/s/    Rowena Smith


   

Name:

 

Rowena Smith

   

Title:

 

Authorized Agent

 

8


BANK OF IRELAND

    by

       
   

/s/    Tom Hayes


   

Name:

 

Tom Hayes

   

Title:

 

Director

    by

       
   

/s/    Gareth Magee


   

Name:

 

Gareth Magee

   

Title:

 

Asst. Manager

IKB CAPITAL CORPORATION

    by

       
   

/s/    David Snyder


   

Name:

 

David Snyder

   

Title:

 

President

SENIOR DEBT PORTFOLIO

    by

 

Boston Management and Research

   

as Investment Advisor

    by

       
   

/s/    Payson F. Swaffield


   

Name:

 

Payson F. Swaffield

   

Title:

 

Vice President

EATON VANCE SENIOR INCOME TRUST

    by

 

Eaton Vance Management

   

as Investment Advisor

    by

       
   

/s/    Payson F. Swaffield


   

Name:

 

Payson F. Swaffield

   

Title:

 

Vice President

EATON VANCE SENIOR LOAN FUND

    by

 

Eaton Vance Management

   

as Investment Advisor

    by

       
   

/s/    Payson F. Swaffield


   

Name:

 

Payson F. Swaffield

   

Title:

 

Vice President

 

9


OXFORD STRATEGIC INCOME FUND

    by

 

Eaton Vance Management

   

as Investment Advisor

    by

       
   

/s/    Payson F. Swaffield


   

Name:

 

Payson F. Swaffield

   

Title:

 

Vice President

EATON VANCE CDO III, LTD.

    by

 

Eaton Vance Management

   

as Investment Advisor

    by

       
   

/s/    Payson F. Swaffield


   

Name:

 

Payson F. Swaffield

   

Title:

 

Vice President

EATON VANCE CDO IV, LTD.

    by

 

Eaton Vance Management

   

as Investment Advisor

    by

       
   

/s/    Payson F. Swaffield


   

Name:

 

Payson F. Swaffield

   

Title:

 

Vice President

CONSTANTINUS EATON VANCE CDO V, LTD.

    by

 

Eaton Vance Management

   

as Investment Advisor

    by

       
   

/s/    Payson F. Swaffield


   

Name:

 

Payson F. Swaffield

   

Title:

 

Vice President

 

10


GRAYSON & CO.

    by

 

Boston Management and Research

   

as Investment Advisor

    by

       
   

/s/    Payson F. Swaffield


   

Name:

 

Payson F. Swaffield

   

Title:

 

Vice President

BIG SKY LOAN FUNDI, LTD.

    by

 

Eaton Vance Management

   

as Investment Advisor

    by

       
   

/s/    Payson F. Swaffield


   

Name:

 

Payson F. Swaffield

   

Title:

 

Vice President

TRANSAMERICA BUSINESS CAPITAL CORPORATION

    by

       
   

/s/    Stephen Goetschius


   

Name:

 

Stephen Goetschius

   

Title:

 

Senior Vice President

THE BANK OF NEW YORK

    by

       
   

/s/    Michael Flannery


   

Name:

 

Michael Flannery

   

Title:

 

Managing Director

 

11


EXHIBIT A

 

[ATTACH AMENDMENT TO PLAN]


EXHIBIT B

 

[ATTACH AMENDMENT TO PLAN]