Exhibit 10.63
THIRD AMENDMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), is made and
entered into as of December 31, 2003 among CURATIVE HEALTH SERVICES, INC.,
(formerly known as Curative Holding Co.), a Minnesota corporation ("Holdings"),
▇▇▇▇▇▇▇▇.▇▇▇, INC., a Delaware corporation ("eBioCare"), HEMOPHILIA ACCESS,
INC., a Tennessee corporation ("Hemophilia Access"), APEX THERAPEUTIC CARE,
INC., a California corporation ("Apex"), CHS SERVICES, INC., a Delaware
corporation ("CHS"), CURATIVE HEALTH SERVICES OF NEW YORK, INC., a New York
corporation ("CHSNY"), OPTIMAL CARE PLUS, INC., a Delaware corporation ("Optimal
Care"), INFINITY INFUSION, LLC, a Delaware limited liability company
("Infinity"), INFINITY INFUSION ii, LLC, a Delaware limited liability company
("Infinity II"), INFINITY INFUSION CARE, LTD., a Texas limited partnership
("Infinity Infusion"), MEDCARE, INC., a Delaware corporation ("Medcare"),
CURATIVE PHARMACY SERVICES, INC., a Delaware corporation ("CPS")(Holdings,
eBioCare, Hemophilia Access, Apex, CHS, CHSNY, Optimal Care, Infinity, Infinity
II, Infinity Infusion, Medcare and CPS are sometimes collectively referred to
herein as the "Borrowers" and individually as a "Borrower"), the Lenders party
to the Credit Agreement, and General Electric Capital Corporation, as Agent and
Lender.
Statement of Facts
A. Borrowers, Lenders and Agent are parties to that certain Credit
Agreement, dated June 9, 2003, as amended by (i) that certain Consent and First
Amendment to Credit Agreement, dated as of July 11, 2003, among Borrowers,
Lenders and Agent, (ii) that certain Joinder to Credit Agreement dated as of
August 19, 2003 by Holdings in favor of Agent (the "Joinder Agreement"), and
(iii) that certain Second Amendment to Credit Agreement, dated as of October 10,
2003, among Borrowers, Lender and Agent (as so amended, the "Credit Agreement";
capitalized terms used but not defined in this Amendment have the meanings given
in the Credit Agreement, as amended by this Amendment), whereby the Lenders have
made available a term loan and a revolving credit facility to Borrowers, subject
to the terms and conditions contained in the Credit Agreement.
B. The parties hereto desire to enter into this Amendment to amend certain
provisions of the Credit Agreement and Exhibits D-1 and D-2 thereto.
Statement of Terms
NOW THEREFORE, in consideration of the premises and mutual covenants
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Amendment. Subject to the terms and conditions of this Amendment,
including without limitation Section 3 hereof, the Credit Agreement and Exhibits
D-1 and D-2 thereto are hereby amended as follows:
(a) Section 3.4 of the Credit Agreement is hereby amended by deleting such
Section in its entirety and substituting in lieu thereof the following new
Section to read in its entirety as follows:
Section 3.4 Conditions to Each Extension of Credit. The
obligation of any Lender to make any Extension of Credit (including
on the Closing Date), is subject to the satisfaction of the
following additional conditions:
(a) receipt by the Agent of a Notice of Borrowing in
accordance with Section 2.3(a)(i);
(b) immediately before and after giving effect to such
Extension of Credit, no Default or Event of Default shall have
occurred and be continuing; and
(c) the representations and warranties of the Credit Parties
contained in the Loan Documents shall be true and correct in all
material respects on and as of the date of and after giving effect
to such Extension of Credit, except for such changes therein as are
expressly permitted by the terms of this Agreement or consented to
in writing by the Required Lenders and except to the extent that
such representations and warranties are expressly stated to be made
as of an earlier date, in which case they shall be true as of such
earlier date.
Each Extension of Credit hereunder shall be deemed to constitute, as
of the date thereof, (i) a representation and warranty by each
Borrower on the date of such Extension of Credit as to the facts
specified in clauses (b) and (c) of this Section and (ii) a
reaffirmation by Borrowers of the cross-guaranty provisions set
forth in Section 12 and of the granting and continuance of Agent's
Liens, on behalf of itself and Lenders, pursuant to the Collateral
Documents.
(b) Section 7.13 of the Credit Agreement is hereby amended by deleting
such Section in its entirety and substituting in lieu thereof the following new
Section to read in its entirety as follows:
Section 7.13 Capital Expenditures. The Credit Parties will not
make or commit to make any Capital Expenditures in excess of (a)
$6,700,000 in the aggregate during the 2003 Fiscal Year and (b)
$5,000,000 in the aggregate during any Fiscal Year thereafter.
(c) Exhibit D-1 to the Credit Agreement is hereby deleted in its entirety
and a new Exhibit D-1 in the form attached to and made a part of this Amendment
is hereby substituted in lieu thereof.
(d) Exhibit D-2 to the Credit Agreement is hereby deleted in its entirety
and a new Exhibit D-2 in the form attached to and made a part of this Amendment
is hereby substituted in lieu thereof.
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2. Representations and Warranties. Each Borrower hereby jointly and
severally represents and warrants to the Agent and the Lenders that (a) this
Amendment and the Confirmation of Guaranty attached hereto have each been duly
authorized, executed and delivered by Borrowers and each Credit Party signatory
thereto, (b) no Default or Event of Default has occurred and is continuing as of
this date, and (c) all of the representations and warranties made by Borrowers
or any Credit Party in the Credit Agreement are true and correct in all material
respects on and as of the date of this Amendment (except to the extent that any
such representations or warranties expressly referred to a specific prior date
or have changed based upon events expressly permitted by the Credit Agreement).
3. Conditions to Effectiveness. This Amendment shall be effective as of
the date of this Amendment upon the satisfaction in full of each of the
following conditions:
(a) the Agent shall have received counterparts of this Amendment,
duly executed, completed and delivered by the Agent, each of the Required
Lenders, and the Borrowers;
(b) the Agent shall have received counterparts of the attached
Confirmation of Guaranty, duly executed by each other Credit Party; and
(c) Agent shall have received from Borrowers the following
instruments and agreements: (i) the Joinder Agreement; (ii) the Pledge Amendment
dated August 19, 2003 by Holdings in favor of Agent and the related Control
Agreement executed by Curative Health Services Co. (formerly known as Curative
Health Services, Inc.); in each case (other than the stock certificates referred
to in clause (iii) above) in the form previously provided by Agent's counsel to
Holdings and duly executed and delivered by each applicable Credit Party thereto
to Agent.
4. Reimbursement of Expenses. Each Borrower hereby jointly and severally
agrees that it shall reimburse the Agent on demand for all costs and expenses
(including without limitation attorney's fees) incurred by such parties in
connection with the negotiation, documentation and consummation of this
Amendment and the other documents executed in connection herewith and therewith
and the transactions contemplated hereby and thereby.
5. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK FOR CONTRACTS TO BE PERFORMED
ENTIRELY WITHIN SAID STATE.
6. Severability of Provisions. Any provision of this Amendment which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction. To the extent
permitted by applicable law, each Borrower hereby waives any provision of law
that renders any provision hereof prohibited or unenforceable in any respect.
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7. Counterparts. This Amendment may be executed in any number of
counterparts, all of which shall be deemed to constitute but one original and
shall be binding upon all parties, their successors and permitted assigns.
8. Release. Each Borrower hereby fully, finally, and absolutely and
forever releases and discharges Agent and Lenders and their respective present
and former directors, shareholders, officers, employees, agents,
representatives, successors and assigns from any and all actions, causes of
action, claims, debts, damages, demands, liabilities, obligations, and suits, of
whatever kind or nature, in law or equity of such Borrower, whether now known or
unknown to Borrower, and whether contingent or matured (collectively, "Claims")
in respect of the Credit Agreement, the Loan Documents, or the actions or
omissions of Agent or any Lender in respect of the Credit Agreement and the Loan
Documents arising from events occurring prior to the date of this Amendment.
9. Effect of this Amendment. Except as specifically amended or modified
pursuant to Section 1 of this Amendment, no other amendments, changes,
modifications, consents or waivers to the Loan Documents are intended or implied
by this Amendment and in all other respects the Loan Documents are hereby
specifically ratified, restated and confirmed by all parties hereto as of the
effective date hereof. To the extent of conflict between the terms of this
Amendment and the other Loan Documents, the terms of this Amendment shall
control. The Credit Agreement and this Amendment shall be read and construed as
one agreement.
10. Entire Agreement. The Credit Agreement (including Exhibits D-1 and D-2
thereto) as amended by this Amendment embodies the entire agreement between the
parties hereto relating to the subject matter hereof and supersedes all prior
agreements, representations and understandings, if any, relating to the subject
matter hereof.
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IN WITNESS WHEREOF, the parties have caused this Third Amendment to Credit
Agreement to be duly executed by their respective officers thereunto duly
authorized, as of the date first above written.
BORROWERS:
CURATIVE HEALTH SERVICES, INC., a
Minnesota corporation formerly known as
Curative Holding Co.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
▇▇▇▇▇▇▇▇.▇▇▇, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Treasurer
HEMOPHILIA ACCESS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
APEX THERAPEUTIC CARE, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
CHS SERVICES, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Treasurer
CURATIVE HEALTH SERVICES OF NEW YORK, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Treasurer
OPTIMAL CARE PLUS, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Treasurer
INFINITY INFUSION, LLC
By: Curative Health Services, Inc., its
Sole Member
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Treasurer
INFINITY INFUSION II, LLC
By: Curative Health Services, Inc.,
its Sole Member
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Treasurer
INFINITY INFUSION CARE, LTD.
By: Infinity Infusion II, LLC, its Sole
General Partner
By: Curative Health Services, Inc., the
Sole Member of Infinity Infusion II, LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
MEDCARE, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Treasurer
CURATIVE PHARMACY SERVICES, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Treasurer
AGENT AND LENDERS:
GENERAL ELECTRIC CAPITAL CORPORATION, as
Lender and Agent
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇, III
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇, III
Its Duly Authorized Signatory
CONFIRMATION OF GUARANTY
Each of the undersigned Guarantors hereby acknowledges, consents and
agrees to the terms of the foregoing Third Amendment to Credit Agreement and
agrees and confirms that its obligations under the Guaranty to which it is a
party will continue in full force and effect and extend to all Obligations now
outstanding or hereafter incurred pursuant to the terms of the Credit Agreement
as amended and modified hereby.
As of this 31st day of December, 2003.
CURATIVE HEALTH SERVICES CO., a
Minnesota corporation formerly known as
Curative Health Services, Inc.)
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
CURATIVE HEALTH SERVICES III CO.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: CFO and Treasurer
EXHIBIT D-1
to
CREDIT AGREEMENT
NOTICE OF BORROWING
Reference is made to that certain Credit Agreement, dated as of June 9,
2003, by and among the undersigned ("Borrower Representative"), the other
Persons signatory thereto from time to time as Borrowers, General Electric
Capital Corporation, a Delaware corporation, as agent ("Agent"), the other
Persons signatory thereto from time to time as Lenders (including all annexes,
exhibits and schedules thereto, and as from time to time amended, restated,
supplemented or otherwise modified, the "Credit Agreement"). All capitalized
terms used but not otherwise defined herein have the meanings given to them in
Section 1.1 of the Credit Agreement.
Borrower Representative hereby gives irrevocable notice, pursuant to
Section 2.3(a) of the Credit Agreement, of its request for an Advance to be made
on ________________ (the "Borrowing Date") in the aggregate principal amount of
$___________, to be made as [a Base Rate Loan] [a LIBOR Loan having LIBOR Period
of [_____] month(s)].
In order to induce the Lenders to make the Advance(s) requested hereby,
Borrowers hereby represent and warrant as of the date of this Notice of
Borrowing that:
(i) all of the conditions precedent contained in Section 3.4 of the Credit
Agreement have been satisfied on and as of the date hereof, and will continue to
be satisfied on and as of the date of the Advance(s) requested hereby, before
and after giving effect thereto and to the application of the proceeds
therefrom;
(ii) all of the representations and warranties contained in Article IV of
the Credit Agreement are true on and as of the date of this Notice of Borrowing
and will be true in all material respects on and as of the applicable Borrowing
Date with the same effect as if such representations and warranties had been
made on and as of the date of this Notice of Borrowing or on and as of the
applicable Borrowing Date, as the case may be, except to the extent that such
representations and warranties are expressly stated to by made as of an earlier
date, in which case they shall be true as of such earlier date;
(iii) no Default or Event of Default has occurred and is continuing on the
date of this Notice of Borrowing or will have occurred and be continuing on the
applicable Borrowing Date, or will result from the Advance(s) requested in this
Notice of Borrowing;
(iv) the maximum Outstanding Amount (after giving effect to the requested
Advance) when added to Funded Debt of Borrower and its Subsidiaries will not
cause the Borrower to have a Senior Leverage Ratio greater than 2.25 to 1.00 as
of the date of such requested Advance; and
(v) no event or circumstance having a Material Adverse Effect shall have
occurred since the Closing Date.
IN WITNESS WHEREOF, Borrower Representative has caused this Notice of
Borrowing to be executed and delivered by its duly authorized representative as
of the date set forth below.
Dated:_________________
CURATIVE HEALTH SERVICES, INC., a
Minnesota corporation formerly named
Curative Holding Co., individually and
as Borrower Representative
By:_____________________________________
Name:___________________________________
Title:__________________________________
EXHIBIT D-2
to
CREDIT AGREEMENT
NOTICE OF SWINGLINE BORROWING
Reference is made to that certain Credit Agreement, dated as of June 9,
2003, by and among the undersigned ("Borrower Representative"), the other
Persons signatory thereto from time to time as Borrowers, General Electric
Capital Corporation, a Delaware corporation, as agent ("Agent"), the other
Persons signatory thereto from time to time as Lenders (including all annexes,
exhibits and schedules thereto, and as from time to time amended, restated,
supplemented or otherwise modified, the "Credit Agreement"). All capitalized
terms used but not otherwise defined herein have the meanings given to them in
Section 1.1 of the Credit Agreement.
Borrower Representative hereby gives irrevocable notice, pursuant to
Section 2.6(b) of the Credit Agreement, of its request for a Swingline Advance
to be made on ________________ (the "Borrowing Date") in the aggregate principal
amount of $___________, to be made as a Base Rate Loan.
In order to induce the Lenders to make the Swingline Advance(s) requested
hereby, Borrowers hereby represent and warrant as of the date of this Notice of
Borrowing that:
(i) all of the conditions precedent contained in Section 3.4 of the Credit
Agreement have been satisfied on and as of the date hereof, and will continue to
be satisfied on and as of the date of the Swingline Advance(s) requested hereby,
before and after giving effect thereto and to the application of the proceeds
therefrom;
(ii) all of the representations and warranties contained in Article IV of
the Credit Agreement are true on and as of the date of this Notice of Borrowing
and will be true in all material respects on and as of the applicable Borrowing
Date with the same effect as if such representations and warranties had been
made on and as of the date of this Notice of Borrowing or on and as of the
applicable Borrowing Date, as the case may be, except to the extent that such
representations and warranties are expressly stated to be made as of an earlier
date, in which case they shall be true as of such earlier date;
(iii) no Default or Event of Default has occurred and is continuing on the
date of this Notice of Borrowing or will have occurred and be continuing on the
applicable Borrowing Date, or will result from the Advance(s) requested in this
Notice of Swingline Borrowing; and
(iv) no event or circumstance having a Material Adverse Effect shall have
occurred since the Closing Date.
IN WITNESS WHEREOF, Borrower Representative has caused this Notice of
Borrowing to be executed and delivered by its duly authorized representative as
of the date set forth below.
Dated:_____________________________
CURATIVE HEALTH SERVICES, INC., a
Minnesota corporation formerly known as
Curative Holding Co., individually and
as Borrower Representative
By:_____________________________________
Name:___________________________________
Title:__________________________________