THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
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THIS THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
("Amendment") is entered into among AMERISOURCE CORPORATION, a Delaware
corporation ("Borrower"), GENERAL ELECTRIC CAPITAL CORPORATION, a corporation
organized under the banking laws of the State of New York ("GE Capital"), Co-
Agents (as defined in the Credit Agreement, as defined below), and each of the
other lenders thereunder (collectively, the "Lenders" and each, a "Lender"), GE
Capital and BANKERS TRUST COMPANY, a corporation organized under the banking
laws of the State of New York ("BTCo"), as managing agents, BTCo, as the issuing
lender, and GE Capital, as the administrative agent for Lenders (in such
capacity, "Agent"), as of November 27, 1995, with reference to the following
facts:
RECITALS
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A. Borrower, GE Capital, individually and in its capacities as a managing
agent and Agent, BTCo, individually and in its capacities as a managing agent
and the issuing lender, Co-Agents, and each of the other Lenders, have entered
into that certain Amended and Restated Credit Agreement dated as of December 13,
1994, as amended by that certain First Amendment to Credit Agreement dated as of
February 10, 1995 and that certain Second Amendment to Credit Agreement dated as
of September 30, 1995 (as amended, the "Credit Agreement"), pursuant to which
Lenders agreed to make certain financial accommodations to or for the benefit of
Borrower upon the terms and conditions contained therein. Unless otherwise
defined in this Amendment, (i) capitalized terms used herein shall have the
meanings given to them in the Credit Agreement, and (ii) references to sections
and subsections shall refer to sections or subsections of the Credit Agreement.
B. Borrower has requested that Lenders make certain amendments to, and
consent to certain matters under, the Credit Agreement, and Lenders are willing
to do so subject to the terms and conditions set forth in this Amendment.
NOW, THEREFORE, in consideration of the continued performance by
Borrower of its promises and obligations under the Credit Agreement and the
other Loan Documents, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Borrower and Lenders hereby
agree as follows:
A G R E E M E N T
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1. INCORPORATION OF CREDIT AGREEMENT AND OTHER LOAN DOCUMENTS.
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Except as expressly modified under this Amendment, all of the terms and
conditions set forth in the Credit Agreement and the other Loan Documents are
incorporated herein by this reference, and the obligations of Borrower under the
Credit
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Agreement and the other Loan Documents are hereby acknowledged, confirmed
and ratified by Borrower.
2. AMENDMENTS TO CREDIT AGREEMENT.
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2.1 Section 5.1(c) of the Credit Agreement is hereby amended to
delete the first parenthetical, and the following is substituted therefor:
(other than, at any time after there has been a public offering of the
Stock of Borrower or Parent, for any Fiscal Quarter ending September
30)
2.2 Section 5.1(c) of the Credit Agreement is hereby amended to
delete the following language:
and (iv) a statement reconciling Borrower's internally-prepared
monthly financial statements with the quarterly reports filed by
Borrower with the Securities and Exchange Commission.
2.3 Section 5.1(d) of the Credit Agreement is hereby deleted in its
entirety, and the following is substituted therefor:
(d) Within 90 days after the close of each Fiscal Year, a copy of
the annual audited financial statements of Parent and its
Subsidiaries, on a consolidated basis, consisting of balance sheet and
statements of income, retained earnings and cash flow, setting forth
in comparative form the figures for the previous Fiscal Year, which
financial statements shall be prepared in accordance with GAAP,
certified without qualification by the Auditors and accompanied by (i)
a statement in reasonable detail showing the calculations used in
determining Borrower's compliance with the Financial Covenants and
calculations of the Interest Coverage Ratio and Total Debt to EBITDA
Ratio, (ii) a report from the Auditors to the effect that in
connection with their audit examination, nothing has come to their
attention to cause them to believe that a Default or Event of Default
had occurred, (iii) a certification of the chief executive officer,
chief accounting officer, or chief financial officer of each of Parent
and Borrower that, to his or her knowledge, after due inquiry, all
such financial statements are complete and correct and present fairly
in accordance with GAAP the financial position, the results of
operations and the changes in financial position of Parent and its
subsidiaries, on a consolidated basis, as at the end of such Fiscal
Year and for the period then ended and specifying wheither, to his or
her knowledge, after due
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inquiry, there was any Default or Event of Default in existence as of
such time, and (iv) if the generally accepted accounting principles in
the United States of America as adopted by Parent or Borrower at any
time differ from the generally accepted accounting principles in the
United States of America as adopted by Borrower on September 30, 1994,
then a written statement from the chief executive officer, chief
accounting officer, or chief financial officer of each of Parent and
Borrower setting forth the changes, if any, that would have resulted
to the calculations described in clause (i) of this SECTION 5.1(D) if
the financial statements described in this SECTION 5.1(D) had been
prepared without giving effect to such accounting change.
2.4 Section 5.1(e) of the Credit Agreement is hereby deleted in its
entirety, and the following is substituted therefor:
(e) Within 90 days after the end of any Fiscal Quarter ending
September 30 (at any time after there has been a public offering of
the Stock of Borrower or Parent), (i) a copy of the unaudited balance
sheets of Borrower, on a Consolidated and consolidating basis, and the
Consolidated Borrower Group as of the end of such Fiscal Quarter and
the related statements of income and cash flow for such Fiscal Quarter
and a management letter, each prepared in accordance with GAAP
(subject to normal year end adjustments and the inclusion of
footnotes), setting forth in comparative form in each case (A) the
previously projected figures for such period and (B) the figures from
the same period for the immediately prior Fiscal Year, accompanied by
(I) a statement in reasonable detail showing (x) the calculations used
in determining Borrower's compliance with the Financial Covenants and
calculations of the Interest Coverage Ratio and Total Debt to EBITDA
Ratio, and (y) the calculations used in determining the amounts added
to the Dividend/Acquisition Basket, together with a summary of each
transaction (including the Acquisition Purchase Price for such
transaction), in which amounts from the Dividend/Acquisition Basket
were utilized, and (II) the certification of the chief executive
officer, chief accounting officer, or chief financial officer of
Borrower that all such financial statements are, to his or her
knowledge, after due inquiry, complete and correct and present fairly
in accordance with GAAP (subject to normal year end adjustments and
the inclusion of footnotes), the financial position and the results of
operations of Borrower, on a Consolidated
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and consolidating basis, and the Consolidated Borrower Group as at the
end of such Fiscal Quarter and for the period then ended, and
specifying whether, to his or her knowledge, after due inquiry, there
was any Default or Event of Default in existence as of such time, and
(ii) if the generally accepted accounting principles in the United
States of America as adopted by Borrower at any time differ from the
generally accepted accounting principles in the United States of
America as adopted by Borrower on September 30, 1994, then a written
statement from the chief executive officer, chief accounting officer,
or chief financial officer of Borrower setting forth the changes, if
any, that would have resulted to the calculations described in clause
(i)(B)(I) of this SECTION 5.1(E) if the financial statements described
in this SECTION 5.1(E) had been prepared without giving effect to such
accounting change.
2.5 Clause (a) of Section 7.14 of the Credit Agreement is hereby
deleted in its entirety, and the following is substituted therefor:
(a) to pay dividends or make advances to Parent (i) to enable Parent
to pay current cash interest to the holders of the Subordinated Parent
Notes, (ii) to allow Parent to redeem Subordinated Parent Notes or
repurchase Subordinated Parent Notes on the open market, and (iii) to
enable Parent to make distributions to its Stockholders; provided,
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that (x) except as described in clause (y) below, the Interest
Coverage Ratio (adjusted to include payment of the proposed dividend
as if that dividend were an interest expense), exceeds 2.5 to 1.0 for
the Testing Period, (y) with respect to those dividends or advances
described in clause (i) above, the Interest Coverage Ratio (adjusted
to include payment of the proposed dividend as if that dividend were
an interest expense), exceeds 2.5 to 1.0 for the Rolling Period (I)
ending on March 31 of any Fiscal Year, if such payment is to be made
on July 15 of such Fiscal Year, and (II) ending on September 30 of any
Fiscal Year, if such payment is to be made on January 15 of the
immediately succeeding Fiscal Year, and (z) the amount of such
dividends that is permitted shall be limited to the then available
Dividend/Acquisition Basket; and provided further, that
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notwithstanding the foregoing, (I) Borrower shall not, in any event,
permit Parent to use such dividends to make distributions to Parent's
Stockholders unless a Qualified Borrower Public Offering or Qualified
Parent Public Offering has been completed, and (II) the aggregate
amount of the dividends to Parent's
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Stockholders shall not, in any event, exceed 20% of the available
amount under the Dividend/Acquisition Basket;
2.6 Section 7.20 of the Credit Agreement is hereby deleted in its
entirety, and the following is substituted therefor:
7.20 Capital Expenditures. The Consolidated Borrower Group shall
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not make aggregate Capital Expenditures in excess of the amounts set
forth below for the Fiscal Year corresponding thereto:
Fiscal Year Amount
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1996 $16,000,000
1997 $17,000,000
1998 $19,000,000
1999 $21,000,000
provided, as a carry-forward, Capital Expenditures for any Fiscal Year
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may be increased by the lesser of (a) one-half of the amount listed
above for the immediately preceding Fiscal Year, and (b) the amount
not expended for such preceding Fiscal Year and without giving effect
to any increase to the amount permitted during such preceding Fiscal
Year pursuant to this Section; and provided further, that for purposes
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of this proviso, Capital Expenditures shall not include the cost of
repair or replacement of any fixed assets or improvements as a result
of a casualty loss, to the extent paid or reimbursed from insurance or
from any other Person. The parties to this Agreement acknowledge
that, during the Fiscal Year ending September 30, 1995, Borrower is
entitled to a carry-forward of $3,300,000 relating to the Fiscal Year
ending September 30, 1994 and that such amount is otherwise subject to
the terms of this SECTION 7.20.
3. CONSENT. Notwithstanding any contrary term or provision set forth in
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the Credit Agreement or the other Loan Documents, Lenders hereby consent,
subject to the terms and conditions set forth below, to the following:
(a) the change of the corporate name of Borrower's Subsidiary, Health
Services Plus, Inc., to "AmeriSource Health Services Corporation"; and
(b) Borrower's entering into a sale-leaseback with Gelco Corporation,
a Minnesota corporation, doing business as GE Capital Fleet Services, on
substantially the same terms as the Master Lease Agreement, a copy of which
is attached hereto as Exhibit A.
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As a result of this Amendment, the foregoing matters shall be permitted under
the Credit Agreement and the other Loan Documents and shall not be a breach or
default thereunder.
4. CONDITIONS OF EFFECTIVENESS. This Amendment shall become effective
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upon satisfaction of each of the following conditions:
(a) Agent shall have received copies of this Amendment that, when
taken together, bear the signatures of Borrower and Requisite Lenders; and
(b) Agent shall have received a copy of the accompanying
Guarantor Consents executed by Parent, AmeriSource Health Services
Corporation (formerly known as Health Services Plus, Inc.) and Health
Services Capital Corporation.
5. ENTIRE AGREEMENT. This Amendment, together with the Credit Agreement
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and the other Loan Documents, is the entire agreement between the parties hereto
with respect to the subject matter hereof. This Amendment supersedes all prior
and contemporaneous oral and written agreements and discussions with respect to
the subject matter hereof. Except as otherwise expressly modified herein, the
Credit Agreement and the other Loan Documents shall remain in full force and
effect.
6. REPRESENTATIONS AND WARRANTIES. Borrower hereby represents and
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warrants that the representations and warranties contained in the Credit
Agreement were true and correct in all material respects when made and, except
to the extent (a) that a particular representation or warranty by its terms
expressly applies only to an earlier date, or (b) Borrower has previously
advised Agent in writing as contemplated under the Credit Agreement, are true
and correct in all material respects as of the date hereof.
7. MISCELLANEOUS.
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7.1 Counterparts. This Amendment may be executed in identical
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counterpart copies, each of which shall be an original, but all of which shall
constitute one and the same agreement. Delivery of an executed counterpart of a
signature page to this Amendment by facsimile transmission shall be effective as
delivery of a manually executed counterpart of this Amendment. Any Lender
delivering this Amendment by facsimile shall send the original manually executed
counterpart of this Amendment to Agent's counsel promptly after such facsimile
transmission.
7.2 Headings. Section headings used herein are for convenience of
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reference only, are not part of this Amendment,
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and are not to be taken into consideration in interpreting this Amendment.
7.3 Recitals. The recitals set forth at the beginning of this
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Amendment are true and correct, and such recitals are incorporated into and are
a part of this Amendment.
7.4 Governing Law. This Amendment shall be governed by, and
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construed and enforced in accordance with, the laws of the State of New York
applicable to contracts made and performed in such state, without regard to the
principles thereof regarding conflict of laws.
7.5 No Novation. Except as specifically set forth in section 2 of
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this Amendment, the execution, delivery and effectiveness of this Amendment
shall not (a) limit, impair, constitute a waiver by, or otherwise affect any
right, power or remedy of, Agent or any Lender under the Credit Agreement or any
other Loan Document, (b) constitute a waiver of any provision in the Credit
Agreement or in any of the other Loan Documents, or (c) alter, modify, amend or
in any way affect any of the terms, conditions, obligations, covenants or
agreements contained in the Credit Agreement, all of which are ratified and
affirmed in all respects and shall continue in full force and effect.
7.6 Conflict of Terms. In the event of any inconsistency between the
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provisions of this Amendment and any provision of the Credit Agreement, the
terms and provisions of this Amendment shall govern and control.
IN WITNESS WHEREOF, this Amendment has been duly executed as of the
date first written above.
BORROWER:
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AMERISOURCE CORPORATION,
a Delaware corporation
By /s/ Kurt J. Hilzinger
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Name Kurt J. Hilzinger
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Title Vice President, Treasurer
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LENDERS:
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GENERAL ELECTRIC CAPITAL CORPORATION,
as Agent, a Managing Agent and a Lender
By /s/ Charles D. Chiodo
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Charles D. Chiodo
Duly Authorized Signatory
BANKERS TRUST COMPANY, as a Managing Agent, Issuing
Lender and a Lender
By /s/ Frederic W. Thomas Jr
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Name Frederic W. Thomas Jr
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Title Vice President
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BANKAMERICA BUSINESS CREDIT, INC., as a Co-Agent and a
Lender
By /s/ George Markowsky
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Name George Markowsky
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Title Vice President
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HELLER FINANCIAL, INC., as a Co-Agent
and as a Lender
By /s/ John Cappenella
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Name John Cappenella
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Title Vice President
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BANK OF NEW YORK COMMERCIAL CORPORATION,
as a Lender
By /s/ Anthony Viola
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Name Anthony Viola
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Title Vice President
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BANK OF MONTREAL, as a Lender
By /s/ Irene M. Geller
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Name Irene M. Geller
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Title Director
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BOT FINANCIAL CORPORATION, as a Lender
By /s/ Willian R. York, Jr.
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Name Willian R. York, Jr.
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Title Senior Vice President
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THE CIT GROUP/BUSINESS CREDIT, INC.,
as a Lender
By /s/ Cyril A. Prince
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Name Cyril A. Prince
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Title Vice President
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CORESTATES BANK, N.A., as a Lender
By /s/ Sherri A. Williams
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Name Sherri A. Williams
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Title Assistant Vice President
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THE FIRST NATIONAL BANK OF BOSTON,
as a Lender
By /s/Willian C. Purinion
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Name Willian C. Purinion
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Title Vice President
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GIROCREDIT BANK AKTIENGESELLSCHAFT
DER SPARKASSEN, GRAND CAYMAN ISLAND
BRANCH, as a Lender
By
___________________________
Name
_________________________
Title
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MERIDIAN BANK, as a Lender
By /s/Patrick B. Trainor
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Name Patrick B. Trainor
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Title Assistant Vice President
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LASALLE NATIONAL BANK, as a Lender
By /s/Christopher G. Clifford
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Name Christopher G. Clifford
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Title Senior Vice President
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NATIONSBANK OF GEORGIA, N.A.,
as a Lender
By
___________________________
Name
_________________________
Title
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SANWA BUSINESS CREDIT CORPORATION,
as a Lender
By /s/Peter L. Skavia
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Name Peter L. Skavia
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Title Vice President
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SHAWMUT CAPITAL CORPORATION,
as a Lender
By
___________________________
Name
_________________________
Title
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