Contract
Exhibit 10.3
EXECUTION VERSION
FIRST AMENDMENT AND WAIVER dated as of April 15, 2010 (this
“Amendment”), to the CREDIT AGREEMENT dated as of November 14,
2006 (as heretofore amended, the “Credit Agreement”), among
AMERISOURCEBERGEN CORPORATION (the “Company”), the Borrowing
Subsidiaries party thereto, the LENDERS party thereto, JPMORGAN CHASE
BANK, N.A., as Administrative Agent, X.X. XXXXXX EUROPE LIMITED, as London
Agent, and THE BANK OF NOVA SCOTIA, as Canadian Agent.
W I T N E S S E T H:
WHEREAS the Lenders have agreed to extend credit to the Company under the Credit Agreement on
the terms and subject to the conditions set forth therein; and
WHEREAS the Company has requested that the Lenders amend certain provisions of the Credit
Agreement, and the Lenders whose signatures appear below, constituting the Required Lenders, are
willing to amend the Credit Agreement on the terms and subject to the conditions set forth herein;
NOW, THEREFORE, 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. Defined Terms. Capitalized terms used but not otherwise defined herein
(including in the recitals hereto) have the meanings assigned to them in the Credit Agreement.
(a) Amendments to the Credit Agreement. Clauses (b) and (c) of the definition of
“ERISA Event” in Section 1.01 of the Credit Agreement are hereby amended to read as follows:
“(b) a failure by any Plan to satisfy the minimum funding standards (as defined in
Section 412 of the Code or Section 302 of ERISA) applicable to such Plan, in each instance,
whether or not waived; (c) the filing pursuant to Section 412(c) of the Code or
Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan
(b) Section 3.10 of the Credit Agreement is hereby amended and restated in its entirety to
read as follows:
“SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably expected
to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to result in
a Material Adverse Effect. Any excess of the accumulated benefits under one or more Plans
(based on the assumptions used for purposes of
Statement of Financial Accounting Standards
No. 87) over the fair market value of the assets of such Plan or Plans is in an amount that
could not reasonably be expected, individually or in the aggregate, to result in a Material
Adverse Effect.”
SECTION 2. Waiver. Any existing Default that would not have occurred had this
Amendment been in effect on and at all times after September 30, 2009, is hereby waived.
SECTION 3. Representations and Warranties. The Company hereby represents and warrants
to the Administrative Agent and to each of the Lenders, as of the Amendment Effective Date (as
defined below), that:
(a) The execution, delivery and performance by the Company of this Amendment have been duly
authorized by all necessary corporate or other organizational and, if required, stockholder or
other equityholder action. This Amendment has been duly executed and delivered by the Company and
this Amendment and the Credit Agreement, as amended by this Amendment, constitutes legal, valid and
binding obligations of the Company, enforceable against it in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting creditors’
rights generally and to general principles of equity, regardless of whether considered in a
proceeding in equity or at law.
(b) The representations and warranties of the Company set forth in the Credit Agreement and
the other Loan Documents are true and correct in all material respects on and as of the Amendment
Effective Date, except in the case of any such representation or warranty that expressly relates to
an earlier date, in which case such representation or warranty is true and correct in all material
respects on and as of such earlier date.
(c) On and as of the Amendment Effective Date, after giving effect to this Amendment, no
Default has occurred and is continuing.
SECTION 4. Effectiveness. This Amendment shall become effective, as of the date first
above written, on the date (the “Amendment Effective Date”) on which the Administrative
Agent shall have received duly executed counterparts hereof that, when taken together, bear the
authorized signatures of the Company and Lenders constituting the Required Lenders.
SECTION 5. Effect of Amendment. (a) Except as expressly set forth herein, this
Amendment shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise
affect the rights and remedies of the Lenders or the Administrative Agent 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 Company to a consent to, or a waiver, amendment,
modification or other change of, any of the terms, conditions, obligations,
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covenants or agreements
contained in the Credit Agreement or any other Loan Document in similar or different circumstances.
(b) On and after the Amendment Effective Date, each reference in the Credit Agreement to “this
Agreement”, “hereunder”, “hereof”, “herein”, or words of like import, and each reference to the
Credit Agreement in any other Loan Document shall be deemed to be a reference to the Credit
Agreement as amended hereby. This Amendment shall constitute a “Loan Document” for all purposes of
the Credit Agreement and the other Loan Documents.
SECTION 6. Applicable Law. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. Counterparts. This Amendment may be executed in counterparts (and by
different parties hereto on different counterparts), each of which shall constitute an original but
all of which, when taken together, shall constitute a single contract. Delivery of an executed
counterpart of a signature page of this Amendment by facsimile or other electronic imaging shall be
as effective as delivery of a manually executed counterpart of this Amendment.
SECTION 8. Expenses. Without limiting the Company’s obligations under the Credit
Agreement, the Company agrees to reimburse the Administrative Agent for its reasonable
out-of-pocket expenses in connection with this Amendment, including the reasonable fees, charges
and disbursements of Cravath, Swaine & Xxxxx LLP, counsel for the Administrative Agent.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their
respective authorized officers as of the date first above written.
AMERISOURCEBERGEN CORPORATION, | ||||||||
by | /s/ X.X. XXXXX | |||||||
Name: | X.X. Xxxxx | |||||||
Title: | Vice President and Corporate Treasurer | |||||||
JPMORGAN CHASE BANK, N.A., individually and as Administrative Agent, | ||||||||
by | /s/ XXXX XXX XXX | |||||||
Name: | Xxxx X. Xxx Xxx | |||||||
Title: | Executive Director |
Each of the undersigned Guarantors consents to the foregoing Amendment and agrees that its
obligations under the Guarantee Agreement remain in full force and effect and will not be
diminished as a result thereof:
AMBULATORY PHARMACEUTICAL SERVICES INC.
AMERISOURCEBERGEN DRUG CORPORATION
AMERISOURCEBERGEN HOLDING CORPORATION
AMERISOURCEBERGEN SERVICES CORPORATION
AMERISOURCEBERGEN SPECIALTY GROUP, INC.
AMERISOURCE HEALTH SERVICES CORPORATION
XXXXXXXX PACKAGING, INC.
APS ENTERPRISES HOLDING COMPANY
ASD SPECIALTY HEALTHCARE, INC.
AUTOMED TECHNOLOGIES, INC.
BELLCO DRUG CORP.
CLINICAL OUTCOMES RESOURCE APPLICATION CORPORATION
DIALYSIS PURCHASING ALLIANCE, INC.
HEALTH SERVICES CAPITAL CORPORATION
I.G.G. OF AMERICA INC.
IHS ACQUISITION XXX, INC.
IMEDEX, LLC
INTEGRATED COMMERCIALIZATION SOLUTIONS, INC.
INTERNATIONAL PHYSICIAN NETWORKS L.L.C.
LIBERTY ACQUISITION CORP.
MEDICAL INITIATIVES, INC.
PHARM PLUS ACQUISITION, INC.
SOLANA BEACH, INC.
SPECIALTY PHARMACY, INC.
SPECIALTY PHARMACY OF CALIFORNIA, INC.
TELEPHARMACY SOLUTIONS, INC.
THE LASH GROUP, INC.
US BIOSERVICES CORPORATION
VALUE APOTHECARIES, INC.
XCENDA, LLC
AMERISOURCEBERGEN DRUG CORPORATION
AMERISOURCEBERGEN HOLDING CORPORATION
AMERISOURCEBERGEN SERVICES CORPORATION
AMERISOURCEBERGEN SPECIALTY GROUP, INC.
AMERISOURCE HEALTH SERVICES CORPORATION
XXXXXXXX PACKAGING, INC.
APS ENTERPRISES HOLDING COMPANY
ASD SPECIALTY HEALTHCARE, INC.
AUTOMED TECHNOLOGIES, INC.
BELLCO DRUG CORP.
CLINICAL OUTCOMES RESOURCE APPLICATION CORPORATION
DIALYSIS PURCHASING ALLIANCE, INC.
HEALTH SERVICES CAPITAL CORPORATION
I.G.G. OF AMERICA INC.
IHS ACQUISITION XXX, INC.
IMEDEX, LLC
INTEGRATED COMMERCIALIZATION SOLUTIONS, INC.
INTERNATIONAL PHYSICIAN NETWORKS L.L.C.
LIBERTY ACQUISITION CORP.
MEDICAL INITIATIVES, INC.
PHARM PLUS ACQUISITION, INC.
SOLANA BEACH, INC.
SPECIALTY PHARMACY, INC.
SPECIALTY PHARMACY OF CALIFORNIA, INC.
TELEPHARMACY SOLUTIONS, INC.
THE LASH GROUP, INC.
US BIOSERVICES CORPORATION
VALUE APOTHECARIES, INC.
XCENDA, LLC
by | X.X. XXXXX
|
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Title: Vice President & Corporate Treasurer |
AMERISOURCE HERITAGE CORPORATION, | ||||||||||
by | XXXXXX X. XXXXX | |||||||||
Name: | Xxxxxx X. Xxxxx | |||||||||
Title: | Vice President & Treasurer | |||||||||
PHARMACY HEALTH CARE SOLUTIONS, LTD., | ||||||||||
by | VALUE APOTHECARIES, INC., as General Partner, | |||||||||
by | X.X. XXXXX | |||||||||
Name: | X.X. Xxxxx | |||||||||
Title: | Vice President & Corporate Treasurer |
Name of Institution: Bank of America, N.A. |
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by | XXXXX X. XXXXXX | |||
Name: | Xxxxx X. Xxxxxx | |||
Title: | Vice President |
Name of Institution:1 |
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by | ||||
Name: | ||||
Title: |
1 | For any Lender requiring a second signature line. |
Name of Institution: The Bank of New York Mellon |
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by | XXXXXXXX XXXX | |||
Name: | Xxxxxxxx Xxxx | |||
Title: | First Vice President |
Name of Institution:1 |
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by | ||||
Name: | ||||
Title: |
1 | For any Lender requiring a second signature line. |
Name of Institution: The Bank of Nova Scotia |
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by | XXXXX X. XXXXXX | |||
Name: | Xxxxx X. Xxxxxx | |||
Title: | Director |
Name of Institution:1 |
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by | ||||
Name: | ||||
Title: |
1 | For any Lender requiring a second signature line. |
by | XXXXX XXXXXX | |||
Name: | Xxxxx XxXxxx | |||
Title: | Authorized Signatory |
Name of Institution:1 |
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by | ||||
Name: | ||||
Title: |
1 | For any Lender requiring a second signature line. |
Name of Institution: Barclays Bank PLC |
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by | XXXXX XXXXXX | |||
Name: | Xxxxx Xxxxxx | |||
Title: | Director |
Name of Institution:1 |
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by | ||||
Name: | ||||
Title: |
1 | For any Lender requiring a second signature line. |
Name of Institution: Citibank, N.A. |
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by | XXXX X. XXXXX | |||
Name: | Xxxx X. Xxxxx | |||
Title: | Vice President |
Name of Institution:1 |
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by | ||||
Name: | ||||
Title: |
1 | For any Lender requiring a second signature line. |
Name of Institution: Credit Suisse
AG Cayman Islands Branch
(f/k/a Credit Suisse, Cayman Islands Branch) |
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by | XXXXX XXXXXXXX | |||
Name: | Xxxxx Xxxxxxxx | |||
Title: | Vice President | |||
Name of Institution:1 |
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by | XXXX IVASHKOV | |||
Name: | Xxxx Ivashkov | |||
Title: | Associate |
1 | For any Lender requiring a second signature line. |
Name of Institution: Deutsche Bank AG New York Branch |
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by | XXXX X. XXX | |||
Name: | Xxxx X. Xxx | |||
Title: | Vice President | |||
Name of Institution:1 |
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by | XXXXXXX XXXX | |||
Name: | Xxxxxxx Xxxx | |||
Title: | Director |
1 | For any Lender requiring a second signature line. |
Name of Institution: Fifth Third Bank |
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by | XXXX XXXXXXXXXXX | |||
Name: | Xxxx Xxxxxxxxxxx | |||
Title: | Vice President |
SIGNATURE PAGE TO
FIRST AMENDMENT AND WAIVER TO
AMERISOURCEBERGEN CORPORATION
CREDIT AGREEMENT
FIRST AMENDMENT AND WAIVER TO
AMERISOURCEBERGEN CORPORATION
CREDIT AGREEMENT
Name of Institution: Keybank National Association |
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by | XXXXXXX X. XXX | |||
Name: | Xxxxxxx X. Xxx | |||
Title: | Vice President & Portfolio Manager |
Name of Institution:1 |
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by | ||||
Name: | ||||
Title: |
1 | For any Lender requiring a second signature line. |
SIGNATURE PAGE TO
FIRST AMENDMENT AND WAIVER TO
AMERISOURCEBERGEN CORPORATION
CREDIT AGREEMENT
FIRST AMENDMENT AND WAIVER TO
AMERISOURCEBERGEN CORPORATION
CREDIT AGREEMENT
Name of Institution: Mizuho Corporate Bank, Ltd. |
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by | XXXXXXX XXXXXXX | |||
Name: | Xxxxxxx Xxxxxxx | |||
Title: | Deputy General Manager |
Name of Institution:1 |
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by | ||||
Name: | ||||
Title: |
1 | For any Lender requiring a second signature line. |
SIGNATURE PAGE TO
FIRST AMENDMENT AND WAIVER TO
AMERISOURCEBERGEN CORPORATION
CREDIT AGREEMENT
FIRST AMENDMENT AND WAIVER TO
AMERISOURCEBERGEN CORPORATION
CREDIT AGREEMENT
Name of Institution: PNC Bank, National Association |
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by | XXXXXX X. XXXXXX | |||
Name: | Xxxxxx X. Xxxxxx | |||
Title: | Senior Vice President |
Name of Institution:1 |
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by | ||||
Name: | ||||
Title: |
1 | For any Lender requiring a second signature line. |
SIGNATURE PAGE TO
FIRST AMENDMENT AND WAIVER TO
AMERISOURCEBERGEN CORPORATION
CREDIT AGREEMENT
FIRST AMENDMENT AND WAIVER TO
AMERISOURCEBERGEN CORPORATION
CREDIT AGREEMENT
Name of Institution: Sumitomo Mitsui Banking Corporation |
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by | XXXXXXXX XXXX | |||
Name: | Xxxxxxxx Xxxx | |||
Title: | Senior Vice President |
SIGNATURE PAGE TO
FIRST AMENDMENT AND WAIVER TO
AMERISOURCEBERGEN CORPORATION
CREDIT AGREEMENT
FIRST AMENDMENT AND WAIVER TO
AMERISOURCEBERGEN CORPORATION
CREDIT AGREEMENT
Name of Institution: The Toronto Dominion Bank New York Branch |
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by | XXXXX XXXXXX | |||
Name: | Xxxxx Xxxxxx | |||
Title: | Vice President | |||
Name of Institution:1 |
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by | ||||
Name: | ||||
Title: |
1 | For any Lender requiring a second signature line. |
SIGNATURE PAGE TO
FIRST AMENDMENT AND WAIVER TO
AMERISOURCEBERGEN CORPORATION
CREDIT AGREEMENT
FIRST AMENDMENT AND WAIVER TO
AMERISOURCEBERGEN CORPORATION
CREDIT AGREEMENT
Name of Institution: U.S. Bank, N.A. |
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by | XXXXXXXX XXXXX | |||
Name: | Xxxxxxxx Xxxxx | |||
Title: | Vice President |
Name of Institution:1 |
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by | ||||
Name: | ||||
Title: |
1 | For any Lender requiring a second signature line. |
SIGNATURE PAGE TO
FIRST AMENDMENT AND WAIVER TO
AMERISOURCEBERGEN CORPORATION
CREDIT AGREEMENT
FIRST AMENDMENT AND WAIVER TO
AMERISOURCEBERGEN CORPORATION
CREDIT AGREEMENT
Name of Institution: Xxxxx Fargo Bank, National Association as successor by merger to Wachovia Bank, National Association |
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by | XXXXXX X XXXX | |||
Name: | Xxxxxx X Xxxx | |||
Title: | Director | |||
Name of Institution:1 |
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by | ||||
Name: | ||||
Title: |
1 | For any Lender requiring a second signature line. |
SIGNATURE PAGE TO
FIRST AMENDMENT AND WAIVER TO
AMERISOURCEBERGEN CORPORATION
CREDIT AGREEMENT
FIRST AMENDMENT AND WAIVER TO
AMERISOURCEBERGEN CORPORATION
CREDIT AGREEMENT
Name of Institution: Xxxxx Fargo Bank N.A. |
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by | XXXXXXX X XXXX | |||
Name: | Xxxxxxx X Xxxx | |||
Title: | Managing Director |
Name of Institution:1 |
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by | ||||
Name: | ||||
Title: |
1 | For any Lender requiring a second signature line. |
SIGNATURE PAGE TO
FIRST AMENDMENT AND WAIVER TO
AMERISOURCEBERGEN CORPORATION
CREDIT AGREEMENT
FIRST AMENDMENT AND WAIVER TO
AMERISOURCEBERGEN CORPORATION
CREDIT AGREEMENT
Name of Institution: Xxxxxxx Street Commitment Corporation |
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by | XXXXXX XXXXXX | |||
Name: | Xxxxxx Xxxxxx | |||
Title: | Authorized Signatory |
Name of Institution:1 |
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by | ||||
Name: | ||||
Title: |
1 | For any Lender requiring a second signature line. |