Exhibit 10(b)

 

 

 
               FIRST AMENDMENT dated as of September 29, 2000 (this "*Amendment*"), to the Credit Agreement dated as of April 20, 2000 (the "*Credit Agreement*") among BERGEN BRUNSWIG CORPORATION (the "*Company*") BERGEN BRUNSWIG DRUG COMPANY,PHARMERICA, INC., the other BORROWING SUBSIDIARIES party hereto, the LENDERS party hereto, and THE CHASE MANHATTAN BANK, as Administrative Agent.  

               A.        Pursuant to the Credit Agreement, the Lenders and the Issuing Banks have extended credit to the Company and the Borrowing Subsidiaries, and have agreed to extend credit to the Company and the Borrowing Subsidiaries, in each case pursuant to the terms andsubject to the conditions set forth therein.
               B.        The Company has informed the Administrative Agent that it seeks an amendment of the Credit Agreement as set forth herein. 

               C.        The Required Lenders are willing to agree to such amendment pursuant to the terms and subject to the conditions set forth herein. 

               D.        Each capitalized term used and not otherwise defined herein shall have the meaning assigned to such term in the Credit Agreement. 

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

                              SECTION 1.        *Amendments to the Credit Agreement*. 
 
               (a)        The definition of "Consolidated Cash Interest Expense" in Section 1.01 of the Credit Agreement is hereby amended and restated in its entirety to read as follows:   
                              ""*Consolidated Cash Interest Expense*" means, for any period, the excess of (a) the sum of (i) the interest expense (including imputed interest expense in respect of Capital Lease Obligations and including all distributions in respect ofthe Trust Preferred) of the Company and the Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP, (ii) any interest accrued during such period in respect of Indebtedness of the Company or any Subsidiary that isrequired to be capitalized rather than included in consolidated interest expense for such period in accordance with GAAP, (iii) all discount, interest, fees, premiums and other charges in respect of all Securitizations for such period, plus (iv) any cash payments made during such period in respect of obligations referred to in clause (b)(B) below that were amortized or accrued in a previous period, minus (b) the sum, to the extent included in such consolidated interest expense forsuch period, of (A) non-cash amounts attributable to amortization of financing costs paid in a previous period, (B) non-cash amounts attributable to amortization of debt discounts or accrued interest payable in kind for such period, and (C) all fees incurred on or prior to the Effective Date in respect of the financing hereunder and all expenses incurred in connection with the closing hereunder on the Effective Date.  In the event that the Company or any Subsidiary shall have completed anacquisition or disposition of any material Person, division or business unit since the beginning of the relevant period, Consolidated Cash Interest Expense shall be determined for such period on a pro forma basis as if such acquisition or disposition, andany related incurrence or repayment of Indebtedness, had occurred at the beginning of such period.  For periods including fiscal quarters ending prior to the Effective Date, Consolidated Cash Interest Expense for such periods shall be deemed to be theamounts set forth on Schedule 1.01, as adjusted to give pro forma effect to any acquisition or disposition that occurred since the beginning of the relevant period by an increase or decrease, as appropriate, in Consolidated Cash Interest Expenseequal to the actual amount attributable to the Person or assets acquired or disposed of.".   
               (b)        The definition of "Consolidated EBITDA" in Section 1.01 of the Credit Agreement is hereby amended and restated in its entirety to read as follows:   
                              ""*Consolidated EBITDA*" means, for any period, Consolidated Net Income for such period plus (a) without duplication and to the extent deducted in determining such Consolidated Net Income, the sum of (i) consolidated interest expense forsuch period, (ii) consolidated income tax expense for such period, (iii) all amounts attributable to depreciation and amortization for such period, (iv) any special one-time or extraordinary non-cash charges for such period (except that such addback for charges against the receivables of PharMerica and Stadtlander Operating Company, L.L.C., and their subsidiaries for the quarter ended September 30, 1999, shall be limited to $40,596,000), and (v) any LIFO adjustment (if negative toearnings) or charge for such period, and minus (b) without duplication and to the extent included in determining such Consolidated Net Income, any extraordinary gains for such period and any LIFO adjustment (if positive to earnings) or credit, alldetermined on a consolidated basis in accordance with GAAP; provided that there shall be added back to Consolidated EBITDA $66,700,000 of the provision for accounts receivable reported in the Company's financial statements for its fourth fiscal quarter of 2000.  In the event that the Company or anySubsidiary shall have completed an acquisition or disposition of any material Person, division or business unit since the beginning of the relevant period, Consolidated EBITDA shall be determined for such period on a pro forma basis as if such acquisitionor disposition, and any related incurrence or repayment of Indebtedness, had occurred at the beginning of such period.  For periods including fiscal quarters ending prior to the Effective Date, Consolidated EBITDA for such periods shall be deemed to bethe amounts set forth on Schedule 1.01, as adjusted to give pro forma effect to any acquisition or disposition that occurred since the beginning of the relevant period by an increase or decrease, as appropriate, in Consolidated EBITDA equal to theactual amount attributable to the Person or assets acquired or disposed of.".   
               (c)        The definition of "Consolidated EBITDAR" in Section 1.01 of the Credit Agreement is hereby amended and restated in its entirety to read as follows:   
                              ""*Consolidated EBITDAR*" means, for any period, Consolidated EBITDA for such period plus rental payments in respect of real property, delivery equipment and pharmacy equipment of the Company and the Subsidiaries for such period (other than undercapital leases), determined on a consolidated basis in accordance with GAAP.  For periods including fiscal quarters ending prior to the Effective Date, Consolidated EBITDAR shall be deemed to be the amounts set forth on Schedule 1.01, as adjusted togive pro forma effect to any acquisition or disposition that occurred since the beginning of the relevant period by an increase or decrease, as appropriate, in Consolidated EBITDAR equal to the actual amount attributable to the Person or assets acquiredor disposed of.".   
               (d)        The definition of "Consolidated Net Worth" in Section 1.01 of the Credit Agreement is hereby amended and restated in its entirety to read as follows:   
                              ""*Consolidated Net Worth*" means, on any date, consolidated shareholders' equity of the Company and the Subsidiaries shown on the consolidated balance sheet of the Company and the Subsidiaries as of such date in accordance with GAAP; provided that (i) up to an aggregate amount of $525,000,000 of charges against goodwill associated with PharMerica reported in Company's financial statements for its fourth fiscal quarter of 2000 may be added back in the calculation of Consolidated Net Worth and(ii) to the extent deducted in determining Consolidated Net Worth, up to an aggregate amount of $66,700,000 of the provision for accounts receivable may be added back in calculating Consolidated Net Worth.".   
               (e)        The definition of "Permitted Investments" in Section 1.01 of the Credit Agreement is hereby amended and restated in its entirety to read as follows:   
                              ""*Permitted Investments*" means:  
               (a)        direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America (or by any agency thereof to the extent such obligations are backed by the full faith and credit of theUnited States of America), in each case maturing within one year from the date of acquisition thereof;     
               (b)        investments in commercial paper maturing within 270 days from the date of acquisition thereof and having, at such date of acquisition, the highest credit rating obtainable from S&P or from Moody's (within which there may be sub-categories orgradations indicating relative standing), and investments in master notes that are rated (or that have been issued by an issuer that is rated with respect to a class of short-term debt obligations, or any security within that class, that is comparable inpriority and security with said master note) by S&P or Moody's in the highest rating categories for short-term debt obligations (within which there may be sub-categories or gradations indicating relative standing);     
               (c)        investments in certificates of deposit, banker's acceptances and time deposits maturing within 180 days from the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, any domesticoffice of any commercial bank organized under the laws of the United States of America or any State thereof which has a combined capital and surplus and undivided profits of not less than $500,000,000;     
               (d)        fully collateralized repurchase agreements with a term of not more than 30 days for securities described in clause (a) above and entered into with a financial institution satisfying the criteria described in clause (c) above (or subsidiaries orAffiliates of such financial institutions); and     
               (e)        money market funds.". 
               (f)        Section 6.05 of the Credit Agreement is hereby amended by inserting the following language at the end thereof:  
"Notwithstanding the foregoing limitation, the Company may sell one or more Subsidiaries or all or any portion of the assets of such Subsidiaries for consideration not less than the fair market value thereof in a transaction (an "*Excluded Transaction*") in which less than 90% of the consideration consists of cash, provided that (i) the Subsidiary, business unit or assets being sold in each Excluded Transaction do not contribute in excess of $1,000,000 per year in EBITDA to the Company and(ii) the net book value of the assets being sold is less than $10,000,000 per Excluded Transaction; provided further that the aggregate net book value of the assets sold in all transactions effected in reliance on this sentence shall not exceed $40,000,000.  Any Equity Interests received pursuant to the previous sentence shall be treated as aPermitted Investment (and shall not be subject to the limitations set forth in Sections 6.04(k) and (l)), provided that such Equity Interests are pledged to the Collateral Agent for the benefit of the Secured Parties as collateral for the payment and performance of the obligations of the Borrowers under this Agreement.".
 

                              SECTION 2.        *Representations and Warranties*.  The Company represents and warrants to the Administrative Agent and the Lenders that:
 
               (a)        This Amendment has been duly executed and delivered by it and constitutes its legal, valid and binding obligation enforceable against it in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, moratorium,reorganization or other similar laws affecting creditors' rights generally and except as enforceability may be limited by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).   
               (b)        Before and after giving effect to this Amendment, the representations and warranties set forth in Article III of the Credit Agreement are true and correct in all material respects with the same effect as if made on the date hereof, except to the extentsuch representations and warranties expressly relate to an earlier date.   
               (c)        After giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
 

                              SECTION 3.        *Effectiveness*.  This Amendment shall become effective as of the date set forth above on the date (the "*Amendment Effective Date*") that the following conditions are satisfied: (a) the Administrative Agent shall have received the AmendmentFee and (b) the Administrative Agent or its counsel shall have received counterparts of this Amendment that, when taken together, bear the signatures of the Company and the Required Lenders.

 

                              SECTION 4.        *Amendment Fee.*  The Company agrees to pay to each Lender that executes and delivers a copy of this Amendment to the Administrative Agent (or its counsel) on or prior to 12:00 noon on October 20, 2000 an amendment fee (the "*Amendment Fee*")in an amount equal to 0.075% of such Lender's Revolving Commitment (whether used or unused) and outstanding Term Loans, in each case as of the Amendment Effective Date; *provided* that the Company shall have no liability for any such amendment fee if this Amendment does not become effective.   The Amendment Fee shall be payable in immediately available funds on the Amendment Effective Date.  Once paid, the AmendmentFee shall not be refundable.

 

                              SECTION 5.        *Effect of  Amendment*.  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, the Issuing Banks, the CollateralAgent 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 anyother 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, anyof the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other Loan Document in similar or different circumstances.   This Amendment shall constitute a "Loan Document" for all purposes of the Credit Agreementand the other Loan Documents.

 

                              SECTION 6.        *Counterparts*.  This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts togethershall constitute but one and the same instrument.  Delivery of any executed counterpart of a signature page of this Amendment by facsimile transmission shall be as effective as delivery of a manually executed counterpart hereof.

 

                              SECTION 7.        *Applicable Law*.  **THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.**
 

                              SECTION 8.        *Headings*.  The headings of this Amendment are for purposes of reference only and shall not limit or otherwise affect the meaning hereof.
 

 

 

 

 

 

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

 

 

 
 
BERGEN BRUNSWIG CORPORATION,         
by
/s/
Eric Schmitt  
Name:
Eric Schmitt  
Title:
VP, Corporate Treasurer         
BERGEN BRUNSWIG DRUG COMPANY,         
by
/s/
Eric Schmitt  
Name:
Eric Schmitt  
Title:
VP, Corporate Treasurer         
PHARMERICA, INC.,         
by
/s/
Eric Schmitt  
Name:
Eric Schmitt  
Title:
VP, Corporate Treasurer         
THE CHASE MANHATTAN BANK, individually and as Administrative Agent,Collateral Agent and Issuing Bank,         
by
/s/
Bruce Borden  
Name:
Bruce Borden  
Title:
Vice President        
Signature Page to FirstAmendment to Bergen BrunswigCorporation Credit Agreement

 
 
AMSOUTH BANK,         
by
/s/
Kevin R. Rogers  
Name:
Kevin R. Rogers  
Title:
Attorney-In-Fact         
BANK ONE, N.A.         
by
/s/
Stephanie A. Mack  
Name:
Stephanie A. Mack  
Title:
Commercial Banking Officer         
THE BANK OF NOVA SCOTIA,         
by
/s/
R.P. Reynolds  
Name:
R.P. Reynolds  
Title:
Director         
THE CIT GROUP/BUSINESS CREDIT, INC.,         
by
/s/
Patrick Lee  
Name:
Patrick Lee  
Title:
Vice President         
CITIZENS BUSINESS CREDIT COMPANY,a division of Citizens Leasing Corp.,         
by
/s/
Vincent P. O' Leary  
Name:
Vincent P. O' Leary  
Title:
Senior Vice President        
 
 
COMERICA BANK,         
by
/s/
David Weismiller  
Name:
David Weismiller  
Title:
Corporate Banking Officer     
BANKERS TRUST COMPANY,         
by
/s/
Mary Jo Jolly  
Name:
Mary Jo Jolly  
Title:
Assistant Vice President         
DIME COMMERICAL CORP.,         
by
/s/
Dan Bueno  
Name:
Dan Bueno  
Title:
Assistant Treasurer         
FLEET NATIONAL BANK,         
by
/s/
Carol P. Castle  
Name:
Carol P. Castle  
Title:
Senior Vice President         
FOOTHILL INCOME TRUST, L.P.,         
by
/s/
M.P. Sadilek
  
Name:
M.P. Sadilek  
Title:
Senior Vice President         
FOOTHILL INCOME TRUST II, L.P.,         
by
/s/
M.E. Stearns  
Name:
M.E. Stearns  
Title:
Managing Member of FIT II   
GP, LLC, its general partner        
 
 
FOOTHILL CAPITAL CORPORATION,         
by
/s/
M.P. Sadilek  
Name:
M.P. Sadilek  
Title:
Senior Vice President         
GMAC COMMERCIAL CREDIT LLC         
by
/s/
Sam Cirelli  
Name:
Sam Cirelli  
Title:
Executive Vice President         
HELLER FINANCIAL, INC.,         
by
/s/
Albert J. Forzano  
Name:
Albert J. Forzano  
Title:
Vice President         
IBJ WHITEHALL BUSINESS CREDIT CORPORATION         
by
/s/
Edward A. Jesser  
Name:
Edward A. Jesser  
Title:
Senior Vice President         
LASALLE BUSINESS CREDIT, INC.,         
by
/s/
Michael Richmond  
Name:
Michael Richmond  
Title:
Senior Vice President         
MELLON BANK, N.A.,         
by
/s/
Timothy K. Turner  
Name:
Timothy K. Turner  
Title:
Senior Vice President        
 
 
NATEXIS BANQUE,         
by
/s/
Gary Kania  
Name:
Gary Kania  
Title:
Vice President         
by
/s/
Frank H. Madden, Jr.  
Name:
Frank H. Madden, Jr.  
Title:
Vice President & Group Manager         
NATIONAL CITY BANK OF PENNSYLVANIA,         
by
/s/
David G. Hammon  
Name:
David G. Hammon  
Title:
Vice President         
ORIX BUSINESS CREDIT, INC.,         
by
/s/
Michael J. Cox  
Name:
Michael J. Cox  
Title:
Senior Vice President         
PNC BUSINESS CREDIT,         
by
/s/
Thomas Stoltz  
Name:
Thomas Stoltz  
Title:
Vice President         
JACKSON NATIONAL LIFEINSURANCE COMPANY, INC.By: PPM Finance, Inc. as its Attorney-in-Fact         
by
/s/
Michael Molenda  
Name:
Michael Molenda  
Title:
Vice President        
 
 
THE PROVIDENT BANK,         
by
/s/
Jose V. Garde  
Name:
Jose V. Garde  
Title:
Vice President         
SIEMENS FINANCIAL SERVICES, INC.,         
by
/s/
Frank Amodio  
Name:
Frank Amodio  
Title:
Vice President - Credit         
TRANSAMERICA BUSINESS CREDITCORPORATION         
by
/s/
Perry Vavoules  
Name:
Perry Vavoules  
Title:
Senior Vice President         
WACHOVIA BANK, N.A.         
by
/s/
Eero H. Maki  
Name:
Eero H. Maki  
Title:
Vice President         
BOEING CAPITAL CORPORATION,         
by
/s/
Daniel O. Anderson  
Name:
Daniel O. Anderson  
Title:
Vice President         
JOHN HANCOCK LIFE INSURANCE COMPANY         
by
/s/
Stephen J. Blewitt  
Name:
Stephen J. Blewitt  
Title:
Managing Director        
 
 
JOHN HANCOCK VARIABLE LIFEINSURANCE COMPANY,         
by
/s/
Stephen J. Blewitt  
Name:
Stephen J. Blewitt  
Title:
Authorized Signatory         
INVESTORS PARTNER LIFEINSURANCE COMPANY,         
by
/s/
Stephen J. Blewitt  
Name:
Stephen J. Blewitt  
Title:
Authorized Signatory         
TEXTRON FINANCIAL CORPORATION,         
by
/s/
Stuart   
Name:
Stuart  
Title:
Managing Director