Attached files
| file | filename |
|---|---|
| EX-32 - EXHIBIT 32 - AMERISOURCEBERGEN CORP | exhibit32-q12018.htm |
| EX-31.2 - EXHIBIT 31.2 - AMERISOURCEBERGEN CORP | exhibit312-q12018.htm |
| EX-31.1 - EXHIBIT 31.1 - AMERISOURCEBERGEN CORP | exhibit311-q12018.htm |
| EX-10.3 - EXHIBIT 10.3 - AMERISOURCEBERGEN CORP | exhibit103.htm |
| EX-10.2 - EXHIBIT 10.2 - AMERISOURCEBERGEN CORP | exhibit102withexa.htm |
| 10-Q - 10-Q - AMERISOURCEBERGEN CORP | a10-qxq12018.htm |
Exhibit 10.1
EXECUTION VERSION
AMENDMENT NO. 1 dated as of December 18, 2017 (this
“Amendment”) to (i) the Credit Agreement dated as of March 18, 2011,
as amended and restated as of November 18, 2016 (the “Revolving
Credit Agreement”), among AmerisourceBergen Corporation, a
Delaware corporation (the “Company”), the borrowing subsidiaries from
time to time party thereto, the lenders from time to time party thereto,
and JPMorgan Chase Bank, N.A., as administrative agent, (ii) the Term
Loan Credit Agreement dated as of November 13, 2015, as amended and
restated as of November 18, 2016 (the “November Term Loan
Agreement”), among the Company, the lenders from time to time party
thereto, and JPMorgan Chase Bank, N.A., as administrative agent, and
(iii) the Term Loan Credit Agreement dated as of February 9, 2015, as
amended and restated as of November 18, 2016 (the “February Term
Loan Agreement”, and together with the Revolving Credit Agreement
and the November Term Loan Agreement, the “Credit Agreements”),
among the Company, the lenders from time to time party thereto, and
Bank of America, N.A., as administrative agent.
WHEREAS, the Company has requested that the Credit Agreements be amended as set
forth herein; and
WHEREAS, JPMorgan Chase Bank, N.A., as Administrative Agent under the Revolving
Credit Agreement and the November Term Loan Agreement, and Bank of America, N.A., as
Administrative Agent under the February Term Loan Agreement (in such capacities, the
“Administrative Agents”), and each Person executing this Amendment as a Lender under one or
more of the Credit Agreements, are willing to amend the Credit Agreements to which they are
party on the terms set forth herein;
NOW, THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
SECTION 1. Defined Terms. Capitalized terms herein, insofar as they are
used in respect of any Credit Agreement or the parties thereto and are not otherwise defined
herein, have the meanings assigned to them in such Credit Agreement. This Amendment shall
constitute a “Loan Document” for all purposes under the Credit Agreements.
SECTION 2. Amendments. Each of the parties hereto agrees that, effective on
the Amendment No. 1 Effective Date, each Credit Agreement to which it is a party is amended
as follows:
(a) The following new definitions are inserted in Section 1.01 in their
appropriate alphabetical positions:
“FCA Reserve” means the US$625,000,000 reserve taken during the
fiscal quarter ended September 30, 2017, related to a payment expected to be
made by the Company or a Subsidiary of the Company of US$625,000,000
pursuant to an agreement in principle with the United States Attorney's Office of
the Eastern District of New York to resolve civil claims under the Federal False
Claims Act, as more fully described in the Report on Form 10-K filed by the
2
Company with the United States Securities and Exchange Commission on
November 21, 2017, subject to negotiation of final terms.
“FDCA Reserve” means the US$260,000,000 reserve taken during the
fiscal quarter ended June 30, 2017, related to the payment by the Company,
during the fiscal year ended September 30, 2017, of US$260,000,000 pursuant to
a plea agreement with the U.S. Attorney's Office of the Eastern District of New
York for a misdemeanor violation of the Federal Food, Drug, and Cosmetic Act,
as more fully described in the Report on Form 10-K filed by the Company with
the United States Securities and Exchange Commission on November 21, 2017.
(b) The definition of “Consolidated EBITDA” in Section 1.01 is amended 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, without duplication, of (i)
consolidated interest expense for such 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 charges
or extraordinary losses for such period, in each case to the extent not involving
cash payments by the Company or any Subsidiary in such period or any future
period, (v) any LIFO adjustment (if negative) or charge for such period, (vi) non-
cash expenses and charges associated with derivatives transactions, including
such non-cash expenses and charges attributed to warrants issued and any
associated hedging transactions, and (vii) all amounts for such period attributable
to (A) the FCA Reserve and (B) the FDCA Reserve and minus (b) without
duplication and to the extent included in determining such Consolidated Net
Income, (i) any special one-time or extraordinary non-cash gains for such period
and any LIFO adjustment (if positive) or credit, and (ii) any non-cash gains
associated with derivatives transactions, including non-cash gains attributed to
warrants issued and any associated hedging transactions, all determined on a
consolidated basis in accordance with GAAP. In the event that the Company or
any Subsidiary shall have completed a Material Acquisition or a Material
Disposition since the beginning of the relevant period, Consolidated EBITDA
shall be determined for such period on a pro forma basis as if such Material
Acquisition or Material Disposition, and any related incurrence or repayment of
Indebtedness, had occurred at the beginning of such period.
SECTION 3. Representations and Warranties. The Company represents and
warrants to the Lenders and the Administrative Agent under each Credit Agreement, and each
Loan Party under and as defined in each Credit Agreement represents and warrants to the
Lenders and the Administrative Agent under such Credit Agreement, that:
(a) the execution, delivery and performance of this Amendment are within its
corporate, partnership or other applicable powers and have been duly authorized by all necessary
corporate, partnership and, if required, stockholder or other equityholder action;
(b) this Amendment has been duly executed and delivered by it and constitutes
its legal, valid and binding obligation, enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’
3
rights generally and subject to general principles of equity, regardless of whether considered in a
proceeding in equity or at law;
(c) no Default has occurred and is continuing under any Credit Agreement to
which it is party; and
(d) the representations and warranties contained in each Credit Agreement to
which it is party and in the other Loan Documents referred to therein are true and correct in all
material respects on and as of the date hereof, except to the extent such representations and
warranties specifically relate to an earlier date, in which case such representations and warranties
were true and correct in all material respects on and as of such earlier date.
SECTION 4. Effectiveness. This Amendment shall become effective on the
date (the “Amendment No. 1 Effective Date”) when the Administrative Agents shall have
received from the Company and each other Loan Party under each Credit Agreement, and from
the Required Lenders under each Credit Agreement (i) counterparts of this Amendment signed
on behalf of such parties or (ii) written evidence reasonably satisfactory to the Administrative
Agents (which may include transmissions by facsimile or other electronic imaging of signed
signature pages of this Amendment) that such parties have signed counterparts of this
Amendment.
SECTION 5. Expenses. The Company agrees to reimburse the
Administrative Agents for their reasonable out-of-pocket expenses in connection with this
Amendment, including the reasonable fees, charges and disbursements of counsel for the
Administrative Agents.
SECTION 6. Notices. All notices hereunder shall be given in accordance with
the provisions of (i) Section 11.01 of the Revolving Credit Agreement, (ii) Section 9.01 of the
November Term Loan Agreement and (iii) Section 11.01 of the February Term Loan
Agreement, as applicable.
SECTION 7. Counterparts. This Amendment may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument. Delivery of an executed signature page of this
Amendment by facsimile or other electronic transmission shall be effective as delivery of a
manually executed counterpart hereof.
SECTION 8. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York without regard to the conflicts
of law principles thereto and to the extent that such principles would direct a matter to another
jurisdiction.
SECTION 9. Incorporation by Reference. Sections 11.07, 11.09(b), 11.09(c),
11.09(d), 11.09(e), 11.10 and 11.11 of the Revolving Credit Agreement, Sections 9.07, 9.09(b),
9.09(c), 9.09(d), 9.10 and 9.11 of the November Term Loan Agreement and Sections 11.07,
11.09(b), 11.09(c), 11.09(d), 11.10 and 11.11 of the February Term Loan Agreement are hereby
incorporated by reference herein, mutatis mutandis, with the sections so incorporated from each
Credit Agreement applying to this Amendment insofar as it relates to such Credit Agreement or
the parties thereto.
[signature pages follow]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their authorized officers as of the date first above written.
AMERISOURCEBERGEN CORPORATION,
INNOMAR STRATEGIES INC.,
By:
/s/ J.F. Quinn
Name: J. F. Quinn
Title: Vice President & Corporate Treasurer for each of the
foregoing parties
BP PHARMACEUTICALS LABORATORIES UNLIMITED COMPANY,
By:
/s/ J.F. Quinn
Name: J.F. Quinn
Title: Treasurer
CENTAUR SERVICES LIMITED,
By:
/s/ J.F. Quinn
Name: J.F. Quinn
Title: Treasurer
[Signature Page to Amendment No. 1]
JPMORGAN CHASE BANK, N.A.,
individually and as Administrative Agent under
the Revolving Credit Agreement and the
November Term Loan Agreement,
By:
/s/ Dawn Lee Lum
Name: Dawn Lee Lum
Title: Executive Director
[Signature Page to Amendment No. 1]
BANK OF AMERICA, N.A., individually and
as Administrative Agent under the February
Term Loan Agreement,
By:
/s/ Darren Merten
Name: Darren Merten
Title: Vice President
[Signature Page to Amendment No. 1]
LENDER SIGNATURE PAGE TO
AMERISOURCEBERGEN CORPORATION
AMENDMENT NO. 1 TO (check all that apply):
RESTATED REVOLVING CREDIT AGREEMENT
NOVEMBER TERM LOAN AGREEMENT
FEBRUARY TERM LOAN AGREEMENT
Name of Lender: Bank of America, N.A.
By
/s/ Darren Merten
Name: Darren Merten
Title: Vice President
[Signature Page to Amendment No. 1]
LENDER SIGNATURE PAGE TO
AMERISOURCEBERGEN CORPORATION
AMENDMENT NO. 1 TO (check all that apply):
RESTATED REVOLVING CREDIT AGREEMENT
NOVEMBER TERM LOAN AGREEMENT
FEBRUARY TERM LOAN AGREEMENT
Name of Lender: Bank of China, New York Branch
By
/s/ Raymond Qiao
Name: Raymond Qiao
Title: Managing Director
[Signature Page to Amendment No. 1]
LENDER SIGNATURE PAGE TO
AMERISOURCEBERGEN CORPORATION
AMENDMENT NO. 1 TO (check all that apply):
RESTATED REVOLVING CREDIT AGREEMENT
NOVEMBER TERM LOAN AGREEMENT
FEBRUARY TERM LOAN AGREEMENT
Name of Lender: THE BANK OF NOVA SCOTIA
By
/s/ Michelle C. Phillips
Name: Michelle C. Phillips
Title: Execution Head & Director
[Signature Page to Amendment No. 1]
LENDER SIGNATURE PAGE TO
AMERISOURCEBERGEN CORPORATION
AMENDMENT NO. 1 TO (check all that apply):
RESTATED REVOLVING CREDIT AGREEMENT
NOVEMBER TERM LOAN AGREEMENT
FEBRUARY TERM LOAN AGREEMENT
Name of Lender: THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.
By
/s/ Brian McNany
Name: Brian McNany
Title: Director
[Signature Page to Amendment No. 1]
LENDER SIGNATURE PAGE TO
AMERISOURCEBERGEN CORPORATION
AMENDMENT NO. 1 TO (check all that apply):
RESTATED REVOLVING CREDIT AGREEMENT
NOVEMBER TERM LOAN AGREEMENT
FEBRUARY TERM LOAN AGREEMENT
Name of Lender: BRANCH BANKING AND TRUST COMPANY
By
/s/ Andrey Rudnitsky
Name: Andrey Rudnitsky
Title: Vice President
[Signature Page to Amendment No. 1]
LENDER SIGNATURE PAGE TO
AMERISOURCEBERGEN CORPORATION
AMENDMENT NO. 1 TO (check all that apply):
RESTATED REVOLVING CREDIT AGREEMENT
NOVEMBER TERM LOAN AGREEMENT
FEBRUARY TERM LOAN AGREEMENT
Name of Lender: The Chiba Bank, Ltd., New York Branch
By
/s/ Atsushi Imai
Name: Atsushi Imai
Title: General Manager
[Signature Page to Amendment No. 1]
LENDER SIGNATURE PAGE TO
AMERISOURCEBERGEN CORPORATION
AMENDMENT NO. 1 TO (check all that apply):
RESTATED REVOLVING CREDIT AGREEMENT
NOVEMBER TERM LOAN AGREEMENT
FEBRUARY TERM LOAN AGREEMENT
Name of Lender: Citibank N.A.
By
/s/ Marni McManus
Name: Marni McManus
Title: Vice President
[Signature Page to Amendment No. 1]
LENDER SIGNATURE PAGE TO
AMERISOURCEBERGEN CORPORATION
AMENDMENT NO. 1 TO (check all that apply):
RESTATED REVOLVING CREDIT AGREEMENT
NOVEMBER TERM LOAN AGREEMENT
FEBRUARY TERM LOAN AGREEMENT
Name of Lender: Citizens Bank of Pennsylvania
By
/s/ William J. O’Meara
Name: William J. O’Meara
Title: Vice President
[Signature Page to Amendment No. 1]
LENDER SIGNATURE PAGE TO
AMERISOURCEBERGEN CORPORATION
AMENDMENT NO. 1 TO (check all that apply):
RESTATED REVOLVING CREDIT AGREEMENT
NOVEMBER TERM LOAN AGREEMENT
FEBRUARY TERM LOAN AGREEMENT
Name of Lender: CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH
By
/s/ Christopher Day
Name: Christopher Day
Title: Authorized Signatory
By
/s/ Brady Bingham
Name: Brady Bingham
Title: Authorized Signatory
[Signature Page to Amendment No. 1]
LENDER SIGNATURE PAGE TO
AMERISOURCEBERGEN CORPORATION
AMENDMENT NO. 1 TO (check all that apply):
RESTATED REVOLVING CREDIT AGREEMENT
NOVEMBER TERM LOAN AGREEMENT
FEBRUARY TERM LOAN AGREEMENT
Name of Lender: KEYBANK NATIONAL ASSOCIATION
By
/s/ Douglas Gardner
Name: Douglas Garnder
Title: Vice President
[Signature Page to Amendment No. 1]
LENDER SIGNATURE PAGE TO
AMERISOURCEBERGEN CORPORATION
AMENDMENT NO. 1 TO (check all that apply):
RESTATED REVOLVING CREDIT AGREEMENT
NOVEMBER TERM LOAN AGREEMENT
FEBRUARY TERM LOAN AGREEMENT
Name of Lender: LIBERTY BANK
By
/s/ Carla Balesano
Name: Carla Balesano
Title: Senior Vice President
[Signature Page to Amendment No. 1]
LENDER SIGNATURE PAGE TO
AMERISOURCEBERGEN CORPORATION
AMENDMENT NO. 1 TO (check all that apply):
RESTATED REVOLVING CREDIT AGREEMENT
NOVEMBER TERM LOAN AGREEMENT
FEBRUARY TERM LOAN AGREEMENT
Name of Lender: Mizuho Bank, Ltd.
By
/s/ Bertram H. Tang
Name: Bertram H. Tang
Title: Authorized Signatory
[Signature Page to Amendment No. 1]
LENDER SIGNATURE PAGE TO
AMERISOURCEBERGEN CORPORATION
AMENDMENT NO. 1 TO (check all that apply):
RESTATED REVOLVING CREDIT AGREEMENT
NOVEMBER TERM LOAN AGREEMENT
FEBRUARY TERM LOAN AGREEMENT
Name of Lender: Mizuho Bank (USA)
By
/s/ Bertram H. Tang
Name: Bertram H. Tang
Title: Director & Team Leader
[Signature Page to Amendment No. 1]
LENDER SIGNATURE PAGE TO
AMERISOURCEBERGEN CORPORATION
AMENDMENT NO. 1 TO (check all that apply):
RESTATED REVOLVING CREDIT AGREEMENT
NOVEMBER TERM LOAN AGREEMENT
FEBRUARY TERM LOAN AGREEMENT
Name of Lender: MORGAN STANLEY BANK, N.A.
By
/s/ Alice Lee
Name: Alice Lee
Title: Authorized Signatory
[Signature Page to Amendment No. 1]
LENDER SIGNATURE PAGE TO
AMERISOURCEBERGEN CORPORATION
AMENDMENT NO. 1 TO (check all that apply):
RESTATED REVOLVING CREDIT AGREEMENT
NOVEMBER TERM LOAN AGREEMENT
FEBRUARY TERM LOAN AGREEMENT
Name of Lender: PNC BANK, NATIONAL ASSOCIATION
By
/s/ Timothy J. Hornickle
Name: Timothy J. Nornickle
Title: Senior Vice President
[Signature Page to Amendment No. 1]
LENDER SIGNATURE PAGE TO
AMERISOURCEBERGEN CORPORATION
AMENDMENT NO. 1 TO (check all that apply):
RESTATED REVOLVING CREDIT AGREEMENT
NOVEMBER TERM LOAN AGREEMENT
FEBRUARY TERM LOAN AGREEMENT
Name of Lender: T. D. Bank, N.A.
By
/s/ Shivani Agarwal
Name: Shivani Agarwal
Title: Senior Vice President
[Signature Page to Amendment No. 1]
LENDER SIGNATURE PAGE TO
AMERISOURCEBERGEN CORPORATION
AMENDMENT NO. 1 TO (check all that apply):
RESTATED REVOLVING CREDIT AGREEMENT
NOVEMBER TERM LOAN AGREEMENT
FEBRUARY TERM LOAN AGREEMENT
Name of Lender: U.S. BANK NATIONAL ASSOCIATION
By
/s/ Thomas M. Priedeman
Name: Thomas M. Priedeman
Title: Assistant Vice President
[Signature Page to Amendment No. 1]
LENDER SIGNATURE PAGE TO
AMERISOURCEBERGEN CORPORATION
AMENDMENT NO. 1 TO (check all that apply):
RESTATED REVOLVING CREDIT AGREEMENT
NOVEMBER TERM LOAN AGREEMENT
FEBRUARY TERM LOAN AGREEMENT
Name of Lender: WELLS FARGO BANK, NATIONAL
ASSOCIATION
By
/s/ Andrea S. Chen
Name: Andrea S. Chen
Title: Managing Director
[Signature Page to Amendment No. 1]