Exhibit 4.4
EXECUTION COPY
SENIOR NOTE
PLEDGE AND ESCROW AGREEMENT
by and among
AMERISOURCEBERGEN CORPORATION,
AMERISOURCE HEALTH CORPORATION,
BERGEN BRUNSWIG CORPORATION,
CHASE MANHATTAN BANK AND TRUST COMPANY,
NATIONAL ASSOCIATION,
as Trustee,
and
CHASE MANHATTAN BANK AND TRUST COMPANY,
NATIONAL ASSOCIATION,
as Special Escrow Agent
Dated as of August 14, 2001
SENIOR NOTE
PLEDGE AND ESCROW AGREEMENT
THIS SENIOR NOTE PLEDGE AND ESCROW AGREEMENT (this "Agreement"), dated
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as of August 14, 2001, is by and among AmerisourceBergen Corporation (the
"Company"), AmeriSource Health Corporation ("AmeriSource"), Bergen Brunswig
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Corporation ("Bergen"), Chase Manhattan Bank and Trust Company, National
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Association as trustee under the Indenture referred to below (the "Trustee"),
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and Chase Manhattan Bank and Trust Company, National Association in its capacity
as special escrow agent (the "Special Escrow Agent").
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RECITALS
A. The Notes. Pursuant to that certain Indenture, dated as of August
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14, 2001, by and between the Company and the Trustee (as amended, supplemented,
restated or otherwise modified from time to time, the "Indenture"), the Company
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will issue $500,000,000.00 in aggregate principal amount of 8 1/8% Senior Notes
due 2008 (the "Notes"). Simultaneously with the issuance of the Notes on August
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14, 2001 (the "Deposit Time"): (i) all of the net proceeds from the sale of the
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Notes and (ii) an additional amount of $20,894,038.07 in cash or Government
Securities (as defined herein) (the "Additional Escrow Amount" and,
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collectively, the "Escrow Funds") shall be deposited by the Company, AmeriSource
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and Bergen, jointly and severally, into a segregated trust account with the
Special Escrow Agent at its office at San Francisco, California, Account No.
160594.1, in the name of Chase Manhattan Bank and Trust Company, National
Association, as Trustee, "Collateral Account of Chase Manhattan Bank and Trust
Company, National Association, as Trustee, for AmerisourceBergen Corporation
Senior Note Holders" (together with any sub-accounts established by the Trustee
or Special Escrow Agent in connection therewith, the "Special Escrow Account").
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The Special Escrow Account and all balances and investments from time to time
therein shall be under the sole dominion and control of the Trustee. Subject to
the terms and conditions hereinafter set forth, the funds on deposit from time
to time in the Special Escrow Account shall be invested as directed by the
Company or, in the absence of such directions, the Trustee. Capitalized terms
used but not defined herein shall have the meanings assigned to them in the
Indenture.
B. Purpose. The parties hereto desire to set forth their agreement
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with regard to the administration of the Special Escrow Account, the creation of
a security interest in the Collateral (as defined herein) and the conditions
upon which funds will be released from the Special Escrow Account.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Security Interest.
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1.1 Pledge and Assignment. The Company hereby irrevocably
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pledges, assigns and sets over to the Trustee, and grants to the Trustee, for
the ratable benefit of the Holders of the Notes, a continuing security interest
in all of the Company's right, title and
interest in and to all of the following (whether consisting of investment
securities, book-entry securities or other securities, security entitlements,
financial assets or other investment property, accounts, general intangibles,
instruments or documents, securities accounts, deposit accounts or other bank,
trust or cash collateral accounts, or other property, assets or rights) whether
now owned or existing or hereafter acquired or created (collectively, the
"Collateral"):
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(a) this Agreement and the escrow created hereunder;
(b) the Special Escrow Account;
(c) all funds, securities, security entitlements and investment
property from time to time held in or credited to the Special Escrow
Account, including, without limitation, the Escrow Funds and the Government
Securities (as defined in Section 2.1) and all certificates and
instruments, if any, from time to time, representing or evidencing the
Special Escrow Account, the Escrow Funds or any of the foregoing, whether
the same shall constitute certificated securities, uncertificated
securities, investment property, financial assets, instruments, general
intangibles or otherwise;
(d) all promissory notes, certificates of deposit, deposit accounts,
checks, securities, security entitlements, investment property and
instruments from time to time hereafter delivered to or otherwise possessed
by the Trustee or the Special Escrow Agent in substitution for or in
addition to any or all of the then existing Collateral;
(e) all interest, dividends, cash, instruments, securities and other
property from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of the then existing Collateral;
and
(f) all proceeds of the foregoing including, without limitation, all
cash proceeds and all non-cash proceeds thereof
(all of the property described in the preceding clauses (c), (d) and (e) and all
proceeds thereof, collectively, the "Securities Collateral").
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The Company shall have no right to remove or withdraw any Securities
Collateral from the Special Escrow Account without the prior written consent of
the Trustee. If at any time the Special Escrow Agent shall receive any
entitlement order from the Trustee (including, without limitation, any order
directing the sale, transfer or redemption of any Securities Collateral), the
Special Escrow Agent shall comply with such entitlement order, without the need
for any consent by the Company or any other Person.
The Trustee hereby appoints the Special Escrow Agent to act as the
Trustee's agent, on behalf of the Holders of the Notes, for purposes of
perfecting the foregoing pledge, assignment and security interest in the
Collateral, and the Special Escrow Agent hereby accepts such appointment. For
so long as the foregoing pledge, assignment and security interest remains in
effect, the Special Escrow Agent hereby waives any right of setoff or banker's
lien that it, in its individual capacity or in its capacity as an agent for
Persons other than the Trustee and the Holders of the Notes, may have with
respect to any or all of the Collateral.
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1.2 Secured Obligations. This Agreement secures the due and punctual
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payment and performance of all obligations and indebtedness of the Company,
whether now or hereafter existing, under the Notes, the Indenture and this
Agreement, including, without limitation, interest accrued thereon after the
commencement of a bankruptcy, reorganization or similar proceeding involving the
Company to the extent permitted by applicable law (collectively, the "Secured
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Obligations").
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1.3 Establishment of Special Escrow Account; Delivery of Collateral.
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(a) Prior to the Deposit Time, the Special Escrow Agent shall
establish the Special Escrow Account at its office at San Francisco, California
as a "securities account" within the meaning of Article 8 of Uniform Commercial
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Code (the "UCC") that is segregated from all other accounts of any kind. The
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Special Escrow Agent will treat all property held by it in the Special Escrow
Account as "financial assets" under Section 8-501(a) (or successor section) of
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the UCC.
(b) All certificates or instruments, if any, representing or
evidencing all or any portion of the Collateral shall be held by the Special
Escrow Agent on behalf of the Trustee pursuant hereto and shall be in suitable
form for transfer by delivery, or shall be accompanied by duly executed
instruments of transfer or assignments in blank, all in form and substance
reasonably satisfactory to the Trustee, and all in form and substance sufficient
to convey a valid security interest in such Collateral to the Trustee.
(c) The Special Escrow Agent shall take all steps necessary to ensure
that the Trustee is the holder or entitlement holder (as the case may be) of all
of the Collateral and that (i) either the Trustee for the ratable benefit of the
Holders of the Notes or, to the extent required by applicable law, the Special
Escrow Agent, for the benefit of the Trustee and the ratable benefit of the
Holders of the Notes, is the holder or entitlement holder of all Government
Securities and other uncertificated securities on the books of the applicable
Federal Reserve Bank or other applicable securities intermediary, and (ii) all
Securities Collateral is credited to the Special Escrow Account in the Trustee's
name on the Special Escrow Agent's books.
(d) Subject to the other terms and conditions of this Agreement, (i)
all Securities Collateral held by the Special Escrow Agent pursuant to this
Agreement shall be held in the Special Escrow Account which shall be subject to
the exclusive dominion and control of the Trustee for the benefit of the Trustee
and the ratable benefit of the Holders of the Notes, and (ii) the Special Escrow
Account and all Securities Collateral from time to time therein shall remain
segregated from all other funds or other property otherwise held by the Trustee
or the Special Escrow Agent, as applicable. All proceeds of the Escrow Funds and
other Securities Collateral, and all cash proceeds thereof, shall remain on
deposit in the Special Escrow Account until withdrawn in accordance with this
Agreement.
1.4 Further Assurances. Prior to, contemporaneously herewith, and
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at any time and from time to time hereafter, the Company shall, at the Company's
expense, execute and deliver to the Trustee or its designee such other
instruments and documents, and take all further action as the Trustee deems
reasonably necessary or advisable or may reasonably request to confirm or
perfect the security interest of the Trustee granted or purported to be granted
hereby
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or to enable the Trustee to exercise and enforce its rights and remedies
hereunder with respect to any Collateral, and the Company shall take all
necessary action to preserve and protect the security interest created hereby as
a first priority, perfected lien and encumbrance upon the Collateral.
1.5 Maintaining the Special Escrow Account. So long as this
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Agreement is in full force and effect:
(a) the Company shall establish and maintain the Special Escrow
Account with the Special Escrow Agent in accordance with Section 1.3
hereof, and the Special Escrow Account shall at all times remain under the
exclusive dominion and control of the Trustee; and
(b) notwithstanding any term or condition to the contrary in any
other agreement relating to the Special Escrow Account, except as otherwise
provided by the provisions of Article 3 hereof, no amount (including,
without limitation, any Escrow Funds or interest on or other proceeds of
the Escrow Funds or on any investment property held in the Special Escrow
Account) shall be paid or released to or for the account of, or withdrawn
by or for the account of, the Company or any other Person other than the
Trustee or its designee from the Special Escrow Account (other than
customary brokerage or similar fees, discounts or commissions payable in
connection with investments of funds pursuant to Section 2.1 hereof).
1.6 Transfers and Other Liens. The Company agrees that it will not
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(i) sell, assign (by operation of law or otherwise) or otherwise dispose of, or
grant any option with respect to, any of the Collateral or (ii) create or permit
to exist any Lien upon or with respect to any of the Collateral, except for the
security interest under this Agreement.
1.7 Attorneys-in-Fact. The Company hereby irrevocably appoints each
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of the Trustee and the Special Escrow Agent as the Company's attorney-in-fact,
coupled with an interest, with full authority in the place and stead of the
Company and in the name of the Company or otherwise, from time to time in the
Trustee's or the Special Escrow Agent's discretion to take any action and to
execute any instrument which the Trustee or the Special Escrow Agent may deem
necessary or advisable to accomplish the purposes of this Agreement, including,
without limitation, to receive, endorse and collect all instruments made payable
to the Company representing any interest payment, dividend or other distribution
in respect of the Collateral or any part thereof and to give full discharge for
the same, and the expenses of the Trustee and the Special Escrow Agent incurred
in connection therewith shall be payable by the Company.
1.8 Trustee or Special Escrow Agent May Perform. Without limiting
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the authority granted under Section 1.7 hereof and except with respect to the
failure of the Company to deliver investment instructions, which shall be
governed by the second paragraph of Section 2.1 hereof, if the Company fails to
perform any agreement contained herein, the Trustee or the Special Escrow Agent
may, but shall not be obligated to, itself perform, or cause performance of,
such agreement, and the expenses of the Trustee or the Special Escrow Agent
incurred in connection therewith shall be payable by the Company and shall be
secured by the Collateral.
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1.9 Financing Statements. In addition to, and not in limitation of,
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any other provision of this Agreement, the Company hereby authorizes the Trustee
to file one or more UCC financing statements with or (to the fullest extent
permitted by applicable law) without the Company's signature, describing the
Collateral and naming the Company, as debtor, and the Trustee, as secured party,
for purposes of perfecting the Trustee's security interest in all or any portion
of the Collateral. In connection therewith: (a) the Company hereby represents
and warrants to the Trustee that (i) the Company is incorporated under the laws
of the State of Delaware, and (ii) the Company's chief executive office is
located at 1300 Morris Drive, Suite 100, Chesterbrook, Pennsylvania 19087-5594,
which is in Chester County in the Commonwealth of Pennsylvania, and (b) the
Company hereby covenants and agrees that it will not change its name, identity
or structure (within the meaning of Article 9 of any applicable enactment of the
UCC) or, at any time while the location of its chief executive office remains
relevant to perfection of the Trustee's security interest in any portion of the
Collateral, relocate its chief executive office unless it shall have: (A) given
the Trustee at least 5 business days' prior notice thereof and (B) prior to
effectiveness of such change, delivered to the Trustee all financing statements,
instruments and other documents reasonably requested by the Trustee in
connection with such change or relocation.
2. Investment and Liquidation of Funds in Special Escrow Account. Funds
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deposited in the Special Escrow Account shall be invested and reinvested by the
Special Escrow Agent on the following terms and conditions:
2.1 Permitted Investments. Prior to the earliest to occur of (i)
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an event described in Section 3.4(a) hereof, (ii) an event described in Section
3.4(b) hereof, or (iii) an Event of Default under the Indenture, the Company
hereby directs the Special Escrow Agent to invest all funds on deposit in the
Special Escrow Account in the name of the Trustee solely in direct obligations
of, or obligations guaranteed by, the United States of America, and the payment
for which the United States pledges its full faith and credit ("Government
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Securities") maturing not later than twelve months after the date of acquisition
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and the Special Escrow Agent hereby agrees to make such investments in the name
of the Trustee.
(a) Notwithstanding the foregoing, if, on or prior to 12:00 noon (New
York City time) on the 85th day after the Deposit Time, the Trustee receives
from the chief financial officer of the Company a certificate substantially in
the form of Exhibit A hereto (a "Preliminary Release Certificate") that:
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(i) sets forth the date (the "Merger Closing Date") for the
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consummation of the merger (the "Merger") contemplated by the
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Agreement and Plan of Merger among AABB Corporation (now named
AmerisourceBergen Corporation), AmeriSource, Bergen, A-Sub Acquisition
Corp. and B-Sub Acquisition Corp., dated March 16, 2001 (the "Merger
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Agreement"), which shall not be earlier than two (2) Business Days
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after the Special Escrow Agent's receipt of such Preliminary Release
Certificate by 12:00 noon (New York City time);
(ii) states that the Company reasonably believes that the Merger will
be consummated on the specified Merger Closing Date;
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(iii) sets forth the date (the "Supplemental Indenture Execution
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Date") for the execution and delivery of the Notation of Guarantee (as
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hereinafter defined) and the Supplemental Indenture (as hereinafter
defined) by each of the guarantors (the "Guarantors") named in the
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Purchase Agreement dated August 9, 2001 among the Company,
AmeriSource, Bergen, and the several Initial Purchasers named therein
(the "Purchase Agreement");
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(iv) states that the Company reasonably believes that the Notation of
Guarantee and the Supplemental Indenture will be executed and
delivered by each of the Guarantors on the Supplemental Indenture
Execution Date; and
(v) directs the liquidation of all of the Government Securities in
accordance with Section 3.1 hereof,
the Company may thereafter direct the Special Escrow Agent to invest the funds
from time to time in the Special Escrow Account solely in the Government
Securities maturing on or before 12:00 noon (New York City time) on the later to
occur of the Merger Closing Date or the Supplemental Indenture Execution Date
(such later date, the "Release Date"); provided, however, that if the Company
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fails to give written investment instructions to the Special Escrow Agent by
12:00 noon (New York City time) on any Business Day prior to the Release Date on
which there is uninvested cash and/or maturing Government Securities in the
Special Escrow Account, the Trustee is hereby authorized to instruct the Special
Escrow Agent in writing to invest any such amounts in the Government Securities,
subject to the same maturity constraints as were imposed on the Company. Any
failure by the Company or the Trustee to give such investment instructions to
the Special Escrow Agent shall not constitute a default or an event of default
hereunder or under the Indenture.
2.2 Interest. All interest earned on funds invested in Government
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Securities shall be held in the Special Escrow Account and reinvested in
accordance with the terms hereof and will be subject to the security interest
granted hereunder to the Trustee.
2.3 Limitation of Trustee's and Special Escrow Agent's Liability.
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In no event shall the Trustee or the Special Escrow Agent have any liability to
the Company or any other Person for investing the funds from time to time in the
Special Escrow Account in accordance with the provisions of this Article 2,
regardless of whether greater income or a higher yield could have been obtained
had the Special Escrow Agent invested such funds in different Government
Securities, or for any loss associated with the sale or liquidation of the
Government Securities in accordance with the terms of this Agreement.
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3. Disposition of Collateral Upon Certain Events.
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3.1 Liquidation of Securities Collateral. If, on or prior to 12:00
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noon (New York City time) on the 90th day after the Deposit Time, the chief
financial officer of the Company delivers to the Trustee a Preliminary Release
Certificate meeting the requirments of Section 2.1(c) hereof, the Trustee shall
direct the Special Escrow Agent in writing to liquidate all of the Securities
Collateral by not later than 12:00 noon (New York City time) on the second (2nd)
Business Day after the Trustee's receipt of such Preliminary Release Certificate
and to retain the liquidation proceeds thereof in the Special Escrow Account.
3.2 Release of Funds on the Release Date. On the Release Date, the
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chief financial officer of the Company shall deliver to the Trustee a
certificate substantially in the form of Exhibit B hereto (a "Final Release
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Certificate") stating that:
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(a) all conditions precedent to the consummation of the Merger have
been satisfied or waived;
(b) the Company has consummated the Merger on substantially the terms
described in the offering circular, dated as of August 9, 2001
relating to the offering of the Notes by the Company (the "Offering
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Circular");
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(c) each of the Guarantors has executed a notation of guarantee, in
the form attached to the Indenture (the "Notation of Guarantee"), and
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a supplemental indenture, in the form attached to the Indenture (the
"Supplemental Indenture"), pursuant to which it has become a guarantor
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of the Notes;
(d) each of the Guarantors has executed a copy of the Registration
Rights Agreement (as defined in the Purchase Agreement) and delivered
the same to the Initial Purchasers;
(e) one or more Opinions of Counsel have been delivered to the
Trustee to the effect that the Notation of Guarantee and the
Supplemental Indenture have been duly executed and delivered by each
of the Guarantors on Schedule I hereto and constitute the valid and
binding agreement of each of them, enforceable in accordance with its
terms, all subject to customary and reasonable assumptions and in form
and substance satisfactory to the Trustee,
and instructing the Trustee to direct the Special Escrow Agent to release the
Securities Collateral in accordance with this Section 3.2. Upon receipt of the
foregoing and in good faith reliance thereon, the Trustee shall direct the
Special Escrow Agent to transfer the funds then on deposit in the Special Escrow
Account to the Company or its order in accordance with the terms of such Final
Release Certificate in immediately available funds.
3.3 Termination of Security Interest. Following receipt by the
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Trustee of a Final Release Certificate in accordance with Section 3.2, the
Trustee shall execute and deliver to the Company and the Special Escrow Agent a
termination of security interest in the form of Exhibit C hereto effective at
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the time on the Release Date of transfer of the funds described in the Final
Release Certificate (the "Release Time"), and the Trustee and the Special Escrow
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Agent shall take all further actions, if any, that are reasonably deemed
necessary by the Company to terminate the Trustee's security interest in the
Collateral as of the Release Time. At the Release Time, all funds transferred by
the Special Escrow Agent in accordance with the provisions of Section 3.2 hereof
shall automatically be deemed to be free and clear of the Trustee's security
interest provided herein.
3.4 Special Mandatory Redemption. If (a) the Trustee receives
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written notice from the Company that the Merger Agreement has terminated or
expired without consummation of the Merger, or (b) the Trustee has not received
a Final Release Certificate meeting the requirements of Section 3.2 hereof on or
prior to the 90th day after the Deposit Time, the Trustee shall direct the
Special Escrow Agent to: (i) promptly liquidate all of the Securities Collateral
to obtain net cash proceeds by no later than 12:00 noon (New York City time) on
the date that is no less than five (5) Business Days and no more than twenty
(20) Business Days after the date specified in clause (a) or (b) above, as
applicable, and (ii) transfer such dollar amount to the Paying Agent to be used
to redeem the Notes in accordance with Section 3.08 of the Indenture, and the
Special Escrow Agent hereby agrees to liquidate such investments and to make
such funds transfer.
4. Remedies upon Default. If (a) any Event of Default shall have occurred
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and be continuing under Section 6.01 of the Indenture, (b) any other Event of
Default shall have occurred and be continuing that results in the acceleration
of the payment of principal, interest, premium, if any, and Liquidated Damages,
if any, pursuant to the terms of the Indenture or (c) any material breach or
violation of any representation, warranty or agreement contained in this
Agreement shall have occurred:
(i) The Trustee may, without notice to the Company except as required
by applicable law and at any time or from time to time, direct the Special
Escrow Agent to liquidate all Collateral and transfer all proceeds thereof
to the Paying Agent to apply such funds in accordance with Section 6.02 of
the Indenture.
(ii) The Trustee (and/or the Special Escrow Agent on its behalf) may
also, in addition to the other rights and remedies provided for herein,
exercise in respect of the Collateral all the rights and remedies of a
secured party upon default under the UCC in effect at that time in the
State of New York (the "New York UCC") (whether or not the New York UCC
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applies to the affected Collateral), and may also, without notice except as
specified below, sell the Collateral or any part thereof in one or more
parcels at public or private sales, at any of the Trustee's or the Special
Escrow Agent's offices or elsewhere, for cash, on credit or for future
delivery, and upon such other terms as the Trustee may deem commercially
reasonable. The Company agrees that, to the extent notice of sale shall be
required by law, at least ten (10) days' notice to the Company of the time
and place of any public sale or the time after which any private sale is to
be made shall constitute reasonable notification. The Trustee and the
Special Escrow Agent shall not be obligated to make any sale of Collateral
regardless of notice of sale having been given. The Trustee and/or the
Special Escrow Agent on its behalf may adjourn any public or private sale
from time to time by announcement at the time and place fixed therefor, and
such sale may, without further notice, be made at the time and place to
which it was so adjourned.
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(iii) Any cash held by the Special Escrow Agent as Collateral
and all net cash proceeds received by the Trustee or the Special
Escrow Agent in respect of any sale or liquidation of, collection
from, or other realization upon all or any part of the Collateral may,
in the discretion of the Trustee, be held by the Trustee or the
Special Escrow Agent as collateral for, and then or at any time
thereafter be applied (after payment of any costs and expenses
incurred in connection with any sale, liquidation or disposition of or
realization upon the Collateral and the payment of any amounts payable
to the Trustee or the Special Escrow Agent) in whole or in part by the
Trustee or the Special Escrow Agent for the ratable benefit of the
Holders of the Notes against, all or any part of the Secured
Obligations in such order as the Trustee shall elect. Any surplus of
such cash or cash proceeds held by the Trustee or the Special Escrow
Agent and remaining after payment in full of all the Secured
Obligations and the costs and expenses incurred by and amounts payable
to the Trustee or the Special Escrow Agent hereunder or under the
Indenture shall be paid over to the Company.
5. Representations, Warranties and Agreements. The Company hereby
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makes all representations and warranties, and agrees to all agreements,
applicable to the Company contained in the Indenture. The Company, AmeriSource
and Bergen severally further represent, warrant and agree that:
5.1 The execution, delivery and performance by the Company,
AmeriSource and Bergen of this Agreement are within their respective corporate
powers, have been duly authorized by all necessary corporate action, and do not
contravene, or constitute a default under, any provision of applicable law or
regulation or of any agreement, judgment, injunction, order, decree or other
instrument binding upon the Company, AmeriSource or Bergen (except as would not,
individually or in the aggregate, have a Material Adverse Effect (as defined in
the Purchase Agreement)), or of the certificate of incorporation or bylaws of
the Company, AmeriSource or Bergen or result in the creation or imposition of
any Lien on any assets of the Company, AmeriSource or Bergen other than the Lien
contemplated hereby.
5.2 Each of them has full power and authority to enter into
this Agreement and has the right to vote, pledge and grant a security interest
in the Collateral as provided by this Agreement.
5.3 This Agreement has been duly executed and delivered by each
of them and constitutes a legal, valid and binding obligation of each of them,
enforceable against each of them in accordance with its terms.
5.4 Upon the delivery to the Special Escrow Agent of the
Collateral and (as to certain proceeds therefrom) the filing of UCC financing
statements, the pledge of the Collateral pursuant to this Agreement creates a
valid and perfected first priority security interest in the Collateral, securing
the payment of the Secured Obligations for the benefit of the Trustee, the
Special Escrow Agent and the Holders, and enforceable as such against all
creditors of each of them and any persons purporting to purchase any of the
Collateral from each of them.
5.5 No consent of any other person and no consent,
authorization, approval, or other action by, and no notice to or filing with,
any governmental authority or regulatory body is
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required either (i) for the pledge by each of them of the Collateral pursuant to
this Agreement or for the execution, delivery or performance of this Agreement
by each of them or (ii) for the exercise by the Trustee or the Special Escrow
Agent of the remedies in respect of the Collateral pursuant to this Agreement
(except as may be required in connection with such disposition by laws affecting
the offering and sale of securities).
5.6 No litigation, investigation or proceeding of or before any
arbitrator or governmental authority is pending or, to the best knowledge of
each of them, threatened by or against each of them or against any of its
properties or revenues with respect to this Agreement or any of the transactions
contemplated hereby.
5.7 The pledge of the Collateral pursuant to this Agreement is
not prohibited by any applicable law or governmental regulation, release,
interpretation or opinion of the Board of Governors of the Federal Reserve
System or other regulatory agency (including, without limitation, Regulations T,
U and X of the Board of Governors of the Federal Reserve System).
5.8 All information set forth herein relating to the Collateral
is accurate and complete in all material respects.
5.9 Upon consummation of the Merger, the Company, AmeriSource
and Bergen will use their best efforts to (a) have each party that is to become
a Guarantor of the Notes pursuant to the terms of the Offering Circular execute
and deliver the Notation of Guarantee and the Supplemental Indenture and (b)
cause one or more opinions of counsel to be delivered to the Trustee to the
effect that the Notation of Guarantee and the Supplemental Indenture (1) have
been duly authorized by the Relevant Guarantors (as such term is defined in the
Purchase Agreement) and, executed and delivered by the Guarantors, (2) are
valid, binding and enforceable and (3) do not contravene, or constitute a
default under, (i) any provision of applicable law or regulation (other than a
contravention or default that is not likely to cause a material adverse effect
on the condition (final or other), business, properties or result of operations
of the Company and its subsidiaries, taken as a whole (a "Material Adverse
Effect")), (ii) any agreement set forth in an exhibit to the opinion (which
exhibit shall identify, based solely on a certificate of an officer of the
Company, all material agreements or instruments of the Guarantors (other than a
breach or violation that is not likely to cause a Material Adverse Effect) or
(iii) the certificate of incorporation or the Bylaws of each of the Guarantors,
all in form and substance satisfactory to the Trustee.
5.10 Until the Merger has been consummated and the Collateral
has been released from the Special Escrow Account in accordance with this
Agreement, each of AmeriSource and Bergen and their respective subsidiaries will
comply with the covenants contained in the Indenture as if they were parties
thereto.
5.11 AmeriSource and Bergen hereby disavow any interest in the
Collateral; provided, that notwithstanding the foregoing, AmeriSource and Bergen
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agree that they will abide by the covenants contained in this Agreement; and
provided, further that notwithstanding the foregoing the parties hereto agree
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that AmeriSource and Bergen in no way disavow any interest in the Company.
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6. Indemnity. The Company, AmeriSource and Bergen, jointly and
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severally, shall indemnify and hold harmless the Trustee, the Special Escrow
Agent and their respective directors, officers, agents and employees, from and
against any and all claims, actions, obligations, liabilities and expenses,
including, without limitation, reasonable defense costs, reasonable
investigative fees and costs, reasonable legal fees and claims for damages
incurred in any action or proceeding between the parties hereto or in disputes
with third parties or otherwise, arising from or in connection with the
Trustee's and/or the Special Escrow Agent's acceptance of, or performance under,
this Agreement, except to the extent that such liability, expense or claim is
directly attributable to the gross negligence, willful misconduct or bad faith
of the Trustee or the Special Escrow Agent.
7. Termination. This Agreement shall terminate automatically upon
-----------
the first to occur of (a) the release of all of the Collateral pursuant to
Section 3.2 or 3.4 hereof or (b) payment in full of the Secured Obligations. The
provisions of Sections 6 and 8 hereof shall survive any termination or discharge
or satisfaction of this Agreement as well as the resignation or removal of the
Trustee or the Special Escrow Agent.
8. Special Escrow Agent.
--------------------
8.1 Limitation of the Special Escrow Agent's Liability;
--------------------------------------------------
Responsibilities of the Escrow Agent. Except as otherwise provided herein, the
------------------------------------
Special Escrow Agent's responsibility and liability under this Agreement shall
be limited as follows: (i) the Special Escrow Agent does not represent, warrant
or guaranty to the Trustee or the Holders of the Notes from time to time the
performance of the Company; (ii) the Special Escrow Agent shall have no
responsibility to the Company, the Holders of the Notes or the Trustee as a
consequence of the performance or non-performance by the Special Escrow Agent
hereunder, except for any bad faith, gross negligence or willful misconduct of
the Special Escrow Agent; (iii) the Company shall remain solely responsible for
all aspects of the Company's business and conduct; and (iv) the Special Escrow
Agent is not obligated to supervise, inspect or inform the Company or any third
party of any matter referred to above. In no event shall the Special Escrow
Agent be liable (x) for acting in accordance with or relying upon any
instruction, notice, demand, certificate or document from the Company or any
entity acting on behalf of the Company delivered in accordance with the terms
hereof, (y) for any consequential, punitive or special damages or (z) for an
amount in excess of the value of the Special Escrow Account valued as of the
date of deposit.
No implied covenants or obligations shall be inferred from this
Agreement against the Special Escrow Agent, nor shall the Special Escrow Agent
be bound by the provisions of any agreement beyond the specific terms hereof.
Specifically and without limiting the foregoing, the Special Escrow Agent shall
in no event have any liability in connection with its investment, reinvestment
or liquidation, in good faith and in accordance with the terms hereof, of any
funds or Government Securities held by it hereunder, including without any
limitation any liability for any delay not resulting from bad faith, gross
negligence or willful misconduct in such investment, reinvestment or
liquidation, or any loss of principal or income incident to any such delay.
The Special Escrow Agent shall be entitled to rely upon any
judicial or administrative order or judgment, upon any opinion of counsel or
upon any certification,
11
instruction, notice or other writing delivered to it by the Company or the
Trustee in compliance with the provisions of this Agreement without being
required to determine the authenticity or the correctness of any fact stated
there or the propriety or validity of service thereof. The Special Escrow Agent
may act or refrain from acting in reliance upon any instrument comporting with
the provisions of this Agreement or signature believed by it to be genuine and
may assume that any Person purporting to give notice or receipt or advice or
make any statement or execute any document in connection with the provisions
hereof has been duly authorized to do so.
At any time the Special Escrow Agent may request in writing an
instruction in writing from the Company and may at its own option but in no case
is obliged to, include in such request the course of action it proposes to take
and the date on which it proposes to act, regarding any matter arising in
connection with its duties and obligations hereunder; provided, however, that
-------- -------
the Special Escrow Agent shall state in such request that it believes in good
faith that such proposed action is consistent with another identified provision
of this Agreement. The Special Escrow Agent shall not be liable to the Company
for acting without the Company's consent in accordance with such a proposal on
or after the date specified therein if (i) the specified date is at least two
Business Days after the Company received the Special Escrow Agent's request for
instructions and its proposed course of action, and (ii) prior to so acting, the
Special Escrow Agent has not received written instruction requested from the
Company.
At the expense of the Company, the Special Escrow Agent may act
pursuant to the advice of counsel chosen by it with respect to any matter
relating to this Agreement and (subject to clause (ii) of the preceding
paragraph) shall not be liable for any action taken or omitted in good faith and
without gross negligence or willful misconduct in accordance with such advice.
The Special Escrow Agent shall not be called upon to advise any party
as to selling or retaining, or taking or refraining from taking any action with
respect to, any securities or other property deposited hereunder.
In the event of any ambiguity in the provisions of this Agreement with
respect to any funds, securities or property deposited hereunder, the Special
Escrow Agent shall be entitled to refuse to comply with any and all claims,
demands or instructions with respect to such funds, securities or property, and
the Special Escrow Agent shall not be or become liable for its failure or
refusal to comply with conflicting claims, demands or instructions. The Special
Escrow Agent shall be entitled to refuse to act until either any conflicting or
adverse claims or demands shall have been finally determined by a court of
competent jurisdiction or settled by agreement between the conflicting claimants
as evidenced by a writing reasonably satisfactory to the Special Escrow Agent or
the Special Escrow Agent shall have received security or an indemnity reasonably
satisfactory to the Special Escrow Agent sufficient to hold the Special Escrow
Agent harmless from and against any and all loss, liability or expense which the
Special Escrow Agent may incur by reason of its acting. The Special Escrow
Agent may in addition elect in its sole opinion to commence an interpleader
action or seek other judicial relief or orders as the Special Escrow Agent may
deem necessary. The costs and expenses (including reasonable attorney's fees
and expenses) incurred in connection with such proceedings shall be paid by, and
shall be deemed an obligation of, the Company.
12
No provision of this Agreement shall require the Special
Escrow Agent to expend its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder.
The Special Escrow Agent shall not incur any liability for not
performing any act or fulfilling any duty, obligation or responsibility
hereunder by reason of any occurrence beyond the control of the Special Escrow
Agent (including but not limited to any act or provision of any present or
future law or regulation or governmental authority, any act of God or war, or
the unavailability of the Federal Reserve Bank wire).
8.2 Substitution of the Special Escrow Agent. The Special
----------------------------------------
Escrow Agent may resign by giving no less than twenty (20) Business Days prior
written notice to the Company and the Trustee. Such resignation shall take
effect upon the later to occur of (i) delivery of all funds and any Government
Securities maintained by the Special Escrow Agent hereunder and copies of all
books, records, plans and other documents in the Special Escrow Agent's
possession relating to such funds, any Government Securities or this Agreement
to a successor escrow agent mutually approved by the Company and the Trustee
(which approvals shall not be unreasonably withheld or delayed) and (ii) the
Company, the Trustee and such successor escrow agent entering into this
Agreement or any written successor agreement no less favorable to the interests
of the Holders of the Notes and the Trustee than this Agreement and the taking
of such other steps as may be necessary to give the successor escrow agent a
first priority security interest in the Special Escrow Account, and the Special
Escrow Agent shall thereupon be discharged of all obligations under this
Agreement and shall have no further duties, obligations or responsibilities in
connection herewith. If a successor escrow agent has not been appointed or has
not accepted such appointment within thirty (30) Business Days after notice of
resignation is given to the Company, the Special Escrow Agent may apply to a
court of competent jurisdiction for the appointment of a successor escrow agent.
8.3 Expenses. The Company, AmeriSource and Bergen,
--------
jointly and severally, will upon demand pay to the Special Escrow Agent the
amount of any and all reasonable expenses, including, without limitation, the
reasonable fees, expenses and disbursements of its counsel, experts and agents
retained by the Special Escrow Agent that the Special Escrow Agent may incur in
connection with (a) the review, negotiation and administration of this
Agreement, (b) the custody or preservation of, or the sale of, collection from,
or other realization upon, any of the Collateral, (c) the exercise or
enforcement of any of the rights of the Trustee and the Holders of the Notes
hereunder or (d) the failure by the Company, AmeriSource or Bergen to perform or
observe any of the provisions hereof.
9. Miscellaneous.
-------------
9.1 Waiver. No waiver of any provision of this Agreement
------
nor consent to any departure by any party therefrom shall in any event be
effective unless the same shall be in writing and signed by each of the non-
breaching parties and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
9.2 Invalidity. If, for any reason whatsoever, any one or
----------
more of the provisions of this Agreement shall be held or deemed to be
inoperative, unenforceable or invalid
13
in a particular case or in all cases, such circumstances shall not have the
effect of rendering any of the other provisions of this Agreement inoperative,
unenforceable or invalid, and the inoperative, unenforceable or invalid
provision shall be construed as if it were written so as to effectuate, to the
maximum extent possible, the parties' intent.
9.3 Assignment. This Agreement shall inure to and be
----------
binding upon the parties and their respective successors and permitted assigns;
provided, however, that the Company, AmeriSource and Bergen may not assign their
-------- -------
rights or obligations hereunder without the express prior written consent of the
Trustee.
9.4 Choice of Law. The existence, validity, construction,
--------------
operation and effect of any and all terms and provisions of this Agreement shall
be determined in accordance with and governed by the internal laws of the State
of New York including, without limitation the Uniform Commercial Code in effect
in the State of New York, without giving effect to the conflicts of law
principles of such State.
9.5 Entire Agreement; Amendments. This Agreement, the
----------------------------
Notes and the Indenture contain the entire agreement among the parties with
respect to the subject matter hereof and supersede any and all prior agreements,
understandings and commitments with respect thereto, whether oral or written;
provided, however, that this Agreement is executed and accepted by the Trustee
-------- -------
and the Special Escrow Agent subject to all terms and conditions of its
acceptance of the trust under the Indenture, as fully as if said terms and
conditions were set forth at length herein. This Agreement may be amended only
by a writing signed by duly authorized representatives of all parties. The
Trustee and the Special Escrow Agent may execute an amendment to this Agreement
only if the requisite consent of the Holders of the Notes required by Article 9
of the Indenture has been obtained, unless no such consent is required by such
Section 9.01 of the Indenture.
9.6 Notices. All notices, requests, instructions, orders
-------
and other communications required or permitted to be given or made under this
Agreement to any party hereto shall be delivered in writing by hand delivery or
overnight delivery, or shall be delivered by facsimile or telephonically with
confirmation in writing not more than twenty-four hours following such facsimile
or telephonic notice. A notice given in accordance with the preceding sentence
shall be deemed to have been duly given upon the sending thereof, except for
notice to the Trustee or the Special Escrow Agent, which shall be deemed given
only when received. Notices should be addressed as follows:
14
To the Company or AmeriSource:
AmerisourceBergen Corporation or
AmeriSource Health Corporation (as applicable)
1300 Morris Drive, Suite 100
Chesterbrook, Pennsylvania 19087-5594
Attention: Chief Financial Officer
Facsimile number: (610) 727-7000
Telephone number: (610) 727-3600
To Bergen:
Bergen Brunswig Corporation
400 Metropolitan Drive
Orange, California 92668
Attention: Chief Financial Officer
Facsimile number: (714)978-7415
Telephone number: (714)385-4000
With copies to:
Dechert
4000 Bell Atlantic Tower
1717 Arch Street
Philadelphia, Pennsylvania 19103
Attention: John LaRocca, Esq.
Facsimile number: (215) 994-2222
Telephone number: (215) 994-4000
To the Trustee:
Chase Manhattan Bank and Trust Company, National Association
101 California Street, Suite 3800
San Francisco, California 94111
Attention: James Nagy
Facsimile number: (415) 954-2371
Telephone number: (415) 954-2367
To the Special Escrow Agent:
Chase Manhattan Bank and Trust Company, National Association
101 California Street, Suite 3800
San Francisco, California 94111
Attention: James Nagy
Facsimile number: (415) 954-2371
Telephone number: (415) 954-2367
15
or at such other address, facsimile number or telephone number as the specified
entity most recently may have designated in writing in accordance with this
paragraph to the other parties.
9.7 Counterparts. This Agreement may be executed in one
------------
or more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. Delivery of an executed
counterpart of a signature page to this Agreement by facsimile shall be
effective as delivery of a manually executed counterpart of this Agreement.
[signature pages attached]
16
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the day first written above.
AMERISOURCEBERGEN CORPORATION
By: /s/ WILLIAM D. SPRAGUE
----------------------------------------------
Name: WILLIAM D. SPRAGUE
Title:VICE PRESIDENT
AMERISOURCE HEALTH CORPORATION
By: /s/ WILLIAM D. SPRAGUE
----------------------------------------------
Name: WILLIAM D. SPRAGUE
Title:VICE PRESIDENT GENERAL COUNSEL AND
SECRETARY
BERGEN BRUNSWIG CORPORATION
By: /s/ ROBERT E. MARTINI
----------------------------------------------
Name: ROBERT E. MARTINI
Title:CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE
OFFICER
CHASE MANHATTAN BANK AND TRUST
COMPANY, NATIONAL ASSOCIATION,
as Trustee
By: /s/ JAMES NAGY
----------------------------------------------
Name: JAMES NAGY
Title:ASSISTANT VICE PRESIDENT
CHASE MANHATTAN BANK AND TRUST
COMPANY, NATIONAL ASSOCIATION,
as Special Escrow Agent
By: /s/ JAMES NAGY
----------------------------------------------
Name: JAMES NAGY
Title:ASSISTANT VICE PRESIDENT
Pledge and Escrow Agreement
EXHIBIT A
[Form of Preliminary Release Certificate]
AMERISOURCEBERGEN CORPORATION
Date: ___________
The undersigned, Chief Financial Officer of AmerisourceBergen
Corporation, a Delaware corporation (the "Company"), hereby certifies to the
-------
Trustee, pursuant to Section 3.1 of the Senior Note Pledge and Escrow Agreement
dated as of August 14, 2001 (the "Pledge and Escrow Agreement") by and among the
---------------------------
Company, a Delaware corporation, AmeriSource Health Corporation, a Delaware
corporation, Bergen Brunswig Corporation, a New Jersey corporation, Chase
Manhattan Bank and Trust Company, National Association, as trustee (the
"Trustee") under the Indenture dated as of August 14, 2001 (the "Indenture")
------- ---------
between the Company and the Trustee, and Chase Manhattan Bank and Trust Company,
National Association, as special escrow agent (the "Special Escrow Agent"), that
--------------------
he is the Chief Financial Officer of the Company and that:
1. The consummation of the Merger has been scheduled to occur on
_____________, 2001 (the "Merger Closing Date").
-------------------
2. The Company believes that the Merger will be consummated on the
Merger Closing Date.
3. The execution and delivery of the Notation of Guarantee and the
Supplemental Indenture by each of the Guarantors have been scheduled to occur on
__________, 2001 (the "Supplemental Indenture Execution Date").
-------------------------------------
4. The Company believes that the Notation of Guarantee and the
Supplemental Indenture will be executed and delivered by each of the Guarantors
on the Supplemental Indenture Execution Date.
Unless otherwise indicated, capitalized terms used herein without
definition shall have the meanings attributed to them in the Pledge and Escrow
Agreement.
The Company hereby requests the Trustee to direct the Special Escrow
Agent to liquidate all of the Government Securities by no later than 12:00 noon
(New York City time) on _________________, 2001, and to retain the proceeds
thereof in the Special Escrow Account pending disbursement in accordance with a
Final Release Certificate.
By:__________________________________
Name:
Title:
A-1
EXHIBIT B
[Form of Final Release Certificate]
AMERISOURCEBERGEN CORPORATION
Date: __________
The undersigned, Chief Financial Officer of AmerisourceBergen
Corporation, a Delaware corporation (the "Company"), hereby certifies to the
-------
Trustee, pursuant to Section 3.2 of the Senior Note Pledge and Escrow Agreement
dated as of August 14, 2001 (the "Pledge and Escrow Agreement") by and among the
---------------------------
Company, a Delaware corporation, AmeriSource Health Corporation, a Delaware
corporation and Bergen Brunswig Corporation, a New Jersey corporation, Chase
Manhattan Bank and Trust Company, National Association, as trustee (the
"Trustee") under the Indenture dated as of August 14, 2001 (the "Indenture")
------- ---------
between the Company and the Trustee, and Chase Manhattan Bank and Trust Company,
National Association, as special escrow agent (the "Special Escrow Agent"), that
--------------------
he is the Chief Financial Officer of the Company and that:
1. All conditions precedent to the consummation of the Merger have
been satisfied or waived.
2. The Company has consummated the Merger on substantially the terms
described in the Offering Circular dated August 9, 2001.
3. Each subsidiary of the Company (after giving effect to the Merger)
that is to have become a guarantor of the Notes pursuant to the terms of the
Purchase Agreement and/or the Offering Circular has executed and delivered to
the Trustee a Notation of Guarantee and a Supplemental Indenture, in the form
attached as Exhibits E and F to the Indenture respectively, pursuant to which
each such subsidiary has become a Guarantor. The Notation of Guarantee and the
Supplemental Indenture have become effective and remains in full force and
effect.
4. Each Subsidiary of the Company (after giving effect to the Merger)
that is to have become a guarantor of the Notes pursuant to the terms of the
Purchase Agreement and/or the Offering Circular has executed a copy of the
Registration Rights Agreement (as defined in the Purchase Agreement) and
delivered the same to the Purchasers (as defined in the Purchase Agreement).
5. One or more Opinions of Counsel (as defined in the Indenture) have
been delivered to the Trustee to the effect that the Notation of Guarantee and
the Supplemental Indenture have been duly executed and delivered by each of the
parties listed on Schedule I to the Pledge and Escrow Agreement and is a valid
and binding agreement of each of them, enforceable in accordance with its terms,
all subject to customary and reasonable assumptions and in form and substance
satisfactory to the Trustee.
B-1
Unless otherwise indicated, capitalized terms used herein without
definition shall have the meanings attributed to them in the Pledge and Escrow
Agreement.
The Company hereby requests the Trustee (a) to direct the Special
Escrow Agent to release the funds held by it in the Special Escrow Account and
transfer them as hereinafter provided, and (b) to terminate its pledge and
assignment of, and security interest in, the Collateral under the Pledge and
Escrow Agreement in accordance with Section 3.3 thereof.
The funds on deposit in the Special Escrow Account should be sent by
wire transfer of immediately available funds to the following account[s]:
[insert bank name, account name, account number, ABA number, and name and phone
number of contact person].
By:_________________________________
Name:
Title:
B-2
EXHIBIT C
[Form of Termination of Security Interest]
[To be Typed on Trustee's Letterhead]
Date: _______, 2001
VIA FACSIMILE AND FEDERAL EXPRESS
---------------------------------
AmerisourceBergen Corporation
1300 Morris Drive, Suite 100
Chesterbrook, Pennsylvania 19087-5594
Attention: Chief Financial Officer
Facsimilie number: (610) 727-7000
Telephone number: (610) 727-3600
and
Chase Manhattan Bank and Trust Company,
National Association
101 California Street, Suite 3800
San Francisco, California 94111
Attention: James Nagy
Facsimile number: (415) 954-2371
Telephone number: (415) 954-2367
Re: Termination of Security Interest
--------------------------------
Ladies and Gentlemen:
Reference is hereby made to that certain Senior Note Pledge and
Escrow Agreement dated as of August 14, 2001 by and among AmerisourceBergen
Corporation (the "Company"), a Delaware corporation, AmeriSource Health
-------
Corporation, a Delaware corporation and Bergen Brunswig Corporation, a New
Jersey corporation, Chase Manhattan Bank and Trust Company, National
Association, as Trustee, and, Chase Manhattan Bank and Trust Company, National
Association, as Special Escrow Agent (as amended, supplemented or modified from
time to time in accordance with the terms thereof, the "Pledge and Escrow
-----------------
Agreement").
---------
By its signature below, the Trustee hereby terminates and
releases its pledge and assignment of, and security interest in, all of the
Collateral under the Pledge and Escrow Agreement, the cash proceeds of which
have been delivered to the Company or its order on the date hereof.
C-1
Very truly yours,
Chase Manhattan Bank and Trust Company, National
Association, as Trustee
By:_____________________________________
Name:
Title:
SCHEDULE I
BBC Packaging Corporation
Bergen Brunswig Corporation
Bergen Brunswig Drug Company
Brownstone Pharmacy, Inc.
Capstone Pharmacy of Delaware, Inc.
Choice Medical, Inc.
Computran Systems, Inc.
Compuscript, Inc.
Dunnington Rx Services of Rhode Island, Inc.
Durr-Fillauer Medical, Inc.
Family Center Pharmacy, Inc.
Goot Nursing Home Pharmacy, Inc.
Green Barn, Inc.
Insta-Care Pharmacy Services Corporation
Integrated Commercialization Solutions, Inc.
Medidyne Corp.
Medical Initiatives, Inc.
Medi-Mail, Inc.
MedNet, MPC Corp.
Pharmacy Corporation of America, Inc.
Pharmacy Corporation of America-Massachusetts, Inc.
PharMerica, Inc.
PharMerica Drug Systems Inc.
Premier Pharmacy, Inc.
RightPak, Inc.
Southwest Pharmacies, Inc.
Tmesys, Inc.
The Lash Group, Inc.
AmeriSource Corporation
AmeriSource Health Corporation
AmeriSource Health Services Corporation
AmeriSource Heritage Corporation
AmeriSource Sales Corporation
C.D. Smith Healthcare, Inc.
General Drug Company
Health Services Capital Corporation
James Brudnick Company, Inc.
Value Apothecaries, Inc.
Pharmacy Healthcare Solutions, Ltd.