Exhibit 10.5
FIRST AMENDMENT TO AMENDED AND RESTATED
CREDIT AGREEMENT AND COLLATERAL DOCUMENTS
THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT AND
COLLATERAL DOCUMENTS (this "Amendment"), is made and entered into as of
May 3, 2004 among CURATIVE HEALTH SERVICES, INC., a Minnesota corporation
formerly known as Curative Holding Co. ("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"), CURATIVE HEALTH
SERVICES CO., a Minnesota corporation formerly known as Curative Health
Services, Inc. ("CHSC"), CRITICAL CARE SYSTEMS, INC., a Delaware corporation
("CCS") (Holdings, eBioCare, Hemophilia Access, Apex, CHS, CHSNY, Optimal
Care, Infinity, Infinity II, Infinity Infusion, Medcare, CPS, CHSC and CCS
are sometimes collectively referred to herein as the "Borrowers" and
individually as a "Borrower"), CURATIVE HEALTH SERVICES III CO., a Minnesota
corporation, and GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation
("GE Capital"), as Agent and Lender.
Statement of Facts
A. Borrowers and GE Capital are parties to that certain Amended and
Restated Credit Agreement, dated April 23, 2004 (as in effect prior to the date
of this Amendment, 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 revolving
credit facility and other financial accommodations to Borrowers, subject to the
terms and conditions contained in the Credit Agreement.
B. Holdings desires on the date hereof to enter into an Interest Rate
Protection Agreement with National City Bank as swap counterparty, which
Interest Rate Protection Agreement will benefit Holdings and the other Credit
Parties. As a condition to entering into such Interest Rate Protection
Agreement, National City Bank ("NCB") requires that GE Capital enter into a risk
participation agreement with NCB (the "Risk Participation Agreement"), pursuant
to which among other things, GE Capital agrees, subject to certain terms and
conditions, that if Holdings fails to timely make certain payments owing by
Holdings to NCB under such Interest Rate Protection Agreement, then GE Capital
will make such payments to NCB and be subrogated to the rights of NCB under such
Interest Rate Protection Agreement.
C. The parties hereto desire to enter into this Amendment to amend certain
provisions of the Credit Agreement and certain of the Collateral Documents as
provided for herein.
Statement of Terms
NOW THEREFORE, in consideration of the premises and mutual covenants
contained herein, to induce GE Capital to enter into the Risk Participation
Agreement, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Amendments to Credit Agreement
Subject to the terms and conditions of this Amendment, including without
limitation Section 4 hereof, the Credit Agreement is hereby amended as follows:
(a) Section 1.1 of the Credit Agreement is hereby amended by deleting
clause (c) of the definition of "Commitment Termination Date" and
substituting in lieu thereof the following new clause (c) to read in
its entirety as follows:
(c) the date of indefeasible payment in full by the Borrowers
of the Loans and all of the Subject Swap Obligations and the
cancellation and return of (or issuance of a stand-by
guarantee or letter of credit with respect to) all Letters of
Credit or the cash collateralization of all L/C Obligations
pursuant to Section 2.5(k), the permanent reduction of all
Commitments to Zero Dollars ($0), and the discharge of all of
Risk Participant's duties and obligations under the Risk
Participation Agreement and the termination of the Risk
Participation Agreement.
(b) Section 1.1 of the Credit Agreement is hereby amended by deleting
clause (k) through the end of the definition of "Indebtedness" and
substituting in lieu thereof the following to read in its entirety
as follows:
(k) all obligations of such Person under any foreign exchange
contract, currency swap agreement, interest rate swap, cap or
collar agreement or other similar agreement or arrangement
designed to alter the risks of that Person arising from
fluctuations in currency values or interest rates, in each
case whether contingent or matured, (1) all Subject Swap
Obligations, and (m) all Guaranteed Obligations of such
Person. Indebtedness shall, in any event, include the
Department of Justice Obligations.
2
(c) Section 1.1 of the Credit Agreement is hereby amended by deleting
clause (i) of the definition of "Restricted Payment" and
substituting in lieu thereof the following new clause (i) to read in
its entirety as follows:
(i) any payment or prepayment of any obligations owing by
Holdings or any other Credit Party to the Subject Swap
Counterparty in connection with the Subject Swap Documents.
(d) Section 1.1 of the Credit Agreement is hereby amended by deleting
the definitions of Monthly Swap Statement", "Obligations", "Secured
Creditors", "Subject Swap", "Subject Swap Counterparty", "Subject
Swap Documents", "Subject Swap Obligations", "Subject Swap
Obligations Cap", "Subject Swap Reserve" and "Termination Date" in
their entirety and substituting in lieu thereof the following new
definitions to read in their entirety as follows:
"Monthly Swap Statement" means the monthly statement prepared
by the Subject Swap Counterparty and delivered to Holdings on a
monthly basis pursuant to the Subject Swap Documents, which
statement shows the current market value of the Subject Swap.
"Obligations" means (a) all Loans, fees, indebtedness,
liabilities, obligations, covenants and duties of any Credit Party
to any Lending Party of every kind, nature and description, direct
or indirect, absolute or contingent, due or not due, in contract or
tort, liquidated or unliquidated, arising under this Agreement, or
under the other Loan Documents, by operation of law or otherwise in
connection with the transactions contemplated hereby, now existing
or hereafter arising, and whether or not for the payment of money or
the performance or non-performance of any act, including, but not
limited to, all damages that any Credit Party may owe to the Agent
and/or the Lenders by reason of any breach by any Credit Party of
any representation, warranty, covenant, agreement or other provision
of this Agreement or any of the other Loan Documents and all
obligations of the Borrowers under any interest rate protection
agreement entered with any Lender pursuant to Section 6.10 hereof
(all of the foregoing liabilities and obligations described in this
clause (a) are referred to herein collectively as the "Credit
Document Obligations"), and (b) the Subject Swap Obligations.
Without limiting the generality of the foregoing, this term includes
all principal, interest (including all interest that accrues after
the commencement of any case or proceeding by or against any Credit
Party in bankruptcy, whether or not allowed in such case or
proceeding), Fees, Charges, expenses, attorneys' fees and any other
sum payable by any Credit Party to a Lending Party under this
Agreement or any of the other Loan Documents.
"Secured Creditors" means, collectively, the Lenders, the
Agent and the Risk Participant, together with their respective
successors and assigns.
3
"Subject Swap" means the Interest Rate Protection Agreement
entered into between Holdings and the Subject Swap Counterparty on
the First Amendment Effective Date pursuant to the Subject Swap
Documents.
"Subject Swap Counterparty" means National City Bank, together
with its successors and assigns.
"Subject Swap Documents" means that certain ISDA Master
Agreement dated the First Amendment Effective Date, the related ISDA
Schedule to the Master Agreement dated the First Amendment Effective
Date, the Subject Swap Confirmation, together with and any
confirmations relating to the Subject Swap, entered into between
Holdings and the Subject Swap Counterparty, which documents and
agreements, in each case must be in form and substance satisfactory
to GE Capital.
"Subject Swap Obligations" has the meaning ascribed to it in
Section 6.1.
"Subject Swap Obligations Cap" means, as of any date of
determination, $7,500,000.
"Subject Swap Reserve" means, as of any date of determination,
a reserve against Eligible Accounts and Eligible Inventory of the
Borrowers in an amount equal to the Subject Swap Obligations Cap,
provided, however, that such Reserve shall not apply to the extent
and only to the extent that as of any date of determination, (i)
Holdings has no obligations (whether contingent or otherwise)
whatsoever under the Subject Swap or any of the Subject Swap
Obligations as of such date, (ii) the Risk Participation Agreement
and all of Risk Participant's obligations to the Subject Swap
Counterparty thereunder have terminated, and (iii) all of the
Subject Swap Obligations have been indefeasibly paid in full as of
such date. If at any time any of the conditions in clauses (i), (ii)
and (iii) of this definition are not met, then the Subject Swap
Reserve shall apply.
"Termination Date" the date on which (a) the Loans have been
indefeasibly repaid in full in cash, (b) all other Obligations under
this Agreement and the other Loan Documents have been completely
discharged, (c) all of the L/C Obligations have been cash
collateralized, cancelled or backed by standby letters of credit in
accordance with Section 2.5 hereof, (d) the Borrowers shall not have
any further right to borrow any monies under this Agreement, and (e)
all of Risk Participant's outstanding duties and obligations to the
Subject Swap Counterparty under the Risk Participation Agreement
have been completely discharged, Risk Participant shall have no
further duties or obligations to National City under the Risk
Participation Agreement, and the Risk Participation Agreement shall
have terminated.
(e) Section 1.1 of the Credit Agreement is hereby amended by deleting
the definitions of "Primary Obligations", "Residual Obligations" and
"Secondary Obligations" in their entirety.
4
(f) Section 1.1 of the Credit Agreement is hereby amended by inserting
the following new definitions for "First Amendment Effective Date",
"Risk Participation Agreement", "Risk Participant" and "Subject Swap
Confirmation" in alphabetical order to read in their entirety as
follows:
"First Amendment Effective Date" means May 3, 2004.
"Risk Participation Agreement" means that certain Risk
Participation Agreement dated as of the First Amendment Effective
Date between National City Bank and Risk Participant, as amended,
restated, supplemented or otherwise modified from time to time.
"Risk Participant" means GE Capital.
"Subject Swap Confirmation" means that certain confirmation
agreement dated the First Amendment Effective Date between Holdings
and the Subject Swap Counterparty in connection with and as part of
the Subject Swap.
(g) Section 2.10(b) of the Credit Agreement is hereby amended by
deleting clauses (iii), (iv) and (v) of such section in their
entirety and substituting in lieu thereof the following new clauses
(iii) and (iv) to read in their entirety as follows:
(iii) third, to the extent proceeds remain after the
application pursuant to the preceding clauses (i) and (ii), to the
payment of an amount equal to all other outstanding Obligations in
such order as Agent may in its sole discretion elect;
(iv) fourth, to the extent proceeds remain after the
application pursuant to the preceding clauses (i) through (iii),
inclusive, and following the Termination Date, to the payment of the
relevant Credit Party or to whomever may be lawfully entitled to
receive such surplus.
(h) Section 2.11(b) of the Credit Agreement is hereby amended by
deleting the first sentence thereof and substituting in lieu thereof
the following new sentence to read in its entirety as follows:
The Borrowers shall have the right to terminate in whole the
Revolving Credit Commitments or, from time to time,
irrevocably to reduce in part the amount of the Revolving
Credit Commitments upon at least thirty (30) days' prior
written notice from Borrower Representative to the Agent,
provided, however that Borrowers shall not have the right to
terminate or reduce the Revolving Credit Commitments if at the
time of such requested termination or reduction (i) the Risk
Participation Agreement shall not have been terminated, or
(ii) Risk Participant shall have any present or future duties
or obligations to the Subject Swap Counterparty under the Risk
Participation Agreement.
5
(i) Section 5.1 of the Credit Agreement is hereby amended by deleting
clause (1) of such section in its entirety and substituting in lieu
thereof the following new clause (1) to read in its entirety as
follows:
(1) Monthly Swap Statement; Etc. To Agent, at the time of
delivery of each Borrowing Base Certificate, a Monthly Swap
Statement, which shall be in form and substance reasonably
satisfactory to Agent. Holdings hereby agrees to immediately upon
receipt thereof notify Agent (telephonically and in writing by
facsimile transmission) of any communication (whether oral or
written) and to provide Agent with a copy of any notice or
communication that it receives from the Subject Swap Counterparty in
connection with the Subject Swap or any of the Subject Swap
Documents that (i) the Subject Swap Exposure (as such term is
defined in the Subject Swap Confirmation) exceeds $6,000,000, (ii)
Holdings is required to make a payment of any Buydown Amount (as
such term is defined in the Subject Swap Confirmation), or (iii)
that any event of default or any termination event has occurred
under the Subject Swap Documents. In addition to the notice required
to be delivered by Holdings to Agent pursuant to the immediately
preceding sentence, Holdings shall deliver to Agent for its receipt
at least one Business Day in advance of any required payment of any
Buydown Amount (as such term is defined in the Subject Swap
Confirmation) by Holdings, a certificate of the chief financial
officer of Holdings, in form and substance reasonably satisfactory
to Agent, demonstrating on a pro forma basis after giving effect to
any such payment compliance with the minimum liquidity covenant in
Section 6.18 and actual and pro forma compliance with the financial
covenants in Sections 7.15, 7.16 and 7.17.
(j) Section 6.1 of the Credit Agreement is hereby amended by adding the
following to the end of such section to read in its entirety as
follows:
Each of the Borrowers hereby jointly and severally,
unconditionally and irrevocably, covenants and agrees to
indemnify and pay to GE Capital, and to hold harmless GE
Capital from and against, any and all liabilities,
obligations, losses and other amounts that GE Capital at any
time heretofore, now or hereafter incurs, is required to pay
or has paid to the Subject Swap Counterparty under, pursuant
to or in connection with the Subject Swap including, without
limitation, any and all payments at any time made or required
to be made by GE Capital to the Subject Swap Counterparty
pursuant to the terms of the Risk Participation Agreement (the
foregoing indemnification obligations of each of the Borrowers
to GE Capital are referred to herein collectively as the
"Subject Swap Obligations"). Each Credit Party hereby further
unconditionally and irrevocably acknowledges, covenants and
agrees that: (i) any and all Subject Swap Obligations from
time to time outstanding shall constitute Obligations
hereunder, shall at all times prior to the Termination Date be
and continue to remain guaranteed by the Guarantors pursuant
to the Guaranty Agreements and shall at all times prior to the
Termination Date be and continue to remain secured by the
6
Liens granted by the Credit Parties to the Agent under and
pursuant to the Collateral Documents; (ii) all Subject Swap
Obligations from time to time outstanding shall be due and
payable in full by Borrowers to GE Capital upon demand for
payment made by GE Capital to any Borrower or Borrower
Representative, provided further that, in addition to (and not
in limitation of) the foregoing, each of the Subject Swap
Obligations from time to time outstanding shall be due and
payable in full by Borrowers to GE Capital upon (A) the date
upon which all of the Commitments have been terminated and the
Loans have been paid in full, (B) the Commitment Termination
Date and (C) following the occurrence of any Event of Default
and the acceleration or deemed acceleration of the maturity
date of any of the Obligations in connection therewith; and
(iii) the obligation of Borrowers hereunder to GE Capital to
timely pay the Subject Swap Obligations shall be joint and
several obligations of the Borrowers.
(k) Section 6.10 of the Credit Agreement is hereby amended by deleting
the phrase "on or about the Restatement Effective Date" in the last
sentence of such section.
(l) Section 7.1 of the Credit Agreement is hereby amended by deleting
clause (f) of such section in its entirety and substituting in lieu
thereof the following new clause (f) to read in its entirety as
follows:
(f) Indebtedness under (i) any Interest Rate Protection
Agreement entered into pursuant to Section 6.10 and (ii) the Subject
Swap;
(m) Section 7.5 of the Credit Agreement is hereby amended by deleting
clause (i) through the end of such section in its entirety and
substituting in lieu thereof the following to read in its entirety
as follows:
(i) prepayments of a portion of principal of Senior Unsecured
Debt from the proceeds of sales Stock of Holdings to the
extent and only to the extent such prepayment is expressly
permitted under Section 2.8(c), and prepayments of principal
of Senior Unsecured Debt and accrued interest thereon pursuant
to any Excess Cash Flow Offer or any Net Proceeds Offer, (j)
the payment of any fees, costs or expenses payable by Holdings
to the Subject Swap Counterparty on the effective date of the
Subject Swap in accordance with the terms of the Subject Swap
Documents, and regularly scheduled payments of other amounts
to the Subject Swap Counterparty after the effective date of
the Subject Swap in accordance with the terms of the Subject
Swap Documents and (k) the payment of any Buydown Amount (as
such term is defined in the Subject Swap Confirmation);
provided that, in each case with respect to clauses (d),
(e),(f), (g) and (i) above (and both before and after giving
effect to any such Restricted Payment) (i) no Default or Event
of Default has occurred and is continuing at the time of such
proposed Restricted Payment, (ii) the chief financial officer
of Holdings shall have delivered to Agent a certificate, in
form and substance reasonably satisfactory to Agent,
7
demonstrating on a pro forma basis after giving effect to any
such Restricted Payment compliance with the minimum liquidity
covenant in Section 6.18 and actual and pro forma compliance
with the financial covenants in Sections 7.15, 7.16 and 7.17,
and (iii) the Restricted Payments shall be made at such times
as will permit the delivery of financial statements necessary
to determine current compliance with the financial covenants
set forth herein prior to each such Restricted Payment.
(n) Section 7.11 of the Credit Agreement is hereby amended by deleting
clause (d) of such section in its entirety and substituting in lieu
thereof the following new clause (d) to read in its entirety as
follows:
(d) any amendment, waiver or other modification of any of the
Subject Swap Documents as in effect on the First Amendment
Effective Date.
(o) Section 8.1 of the Credit Agreement is hereby amended by deleting
the period at the end of clause (u) thereof and replacing it with ";
or" and adding as a new clause (v) the following additional Event of
Default to read in its entirety as follows:
(v) if, for whatever reason, by February 23, 2009 either: (i)
the Subject Swap Counterparty has not accepted a credit support
annex from Holdings by such date to be effective on or before April
23, 2009, which has been offered by Holdings to the Subject Swap
Counterparty pursuant to the proviso at the end of paragraph (h) in
Part 1 of the ISDA Schedule under the Subject Swap Documents, unless
all of Risk Participant's outstanding duties and obligations under
the Risk Participation Agreement have been discharged in full, Risk
Participant has no further duties or obligations to the Subject Swap
Counterparty under the Risk Participation Agreement, and the Risk
Participation Agreement has been terminated; or (ii) the Risk
Participation Agreement has not been terminated or Risk Participant
has any remaining duties or obligations to the Subject Swap
Counterparty thereunder.
(p) Section 8.2(b) of the Credit Agreement is hereby amended by adding
the following new sentence at the end thereof to read in its
entirety as follows:
In addition to and not in limitation of the foregoing, if any
Event of Default has occurred and is continuing, Agent may,
without notice or demand (i) notify the Subject Swap
Counterparty that an Event of Default has occurred and furnish
to the Subject Swap Counterparty a copy of any notice of Event
of Default that Agent and/or Lenders may have given to any
Credit Party or Borrower Representative, and/or (ii) notify
the Subject Swap Counterparty that the requisite Lenders will
not grant a waiver of such Event of Default or any other
Events of Default that may then be in existence.
8
2. Amendments to Collateral Documents
Subject to the terms and conditions of this Amendment, including without
limitation Section 4 hereof, each of the Collateral Documents shall be amended
by deleting the definition of "Termination Date" appearing therein and
substituting in lieu thereof the following new definition to read in its
entirety as follows:
"Termination Date" the date on which (a) the Loans have been
indefeasibly repaid in full in cash, (b) all other Obligations under
the Credit Agreement and the other Loan Documents have been
completely discharged, (c) all of the L/C Obligations have been cash
collateralized, cancelled or backed by standby letters of credit in
accordance with Section 2.5 of the Credit Agreement, (d) the
Borrowers shall not have any further right to borrow any monies
under the Credit Agreement, and (e) all of the outstanding duties
and obligations of Risk Participant to the Subject Swap Counterparty
under the Risk Participation Agreement have been completely
discharged, Risk Participant shall have no further duties or
obligations to National City under the Risk Participation Agreement,
and the Risk Participation Agreement shall have terminated.
3. 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 after giving effect to
this Amendment and the transactions contemplated by the Subject Swap Documents
(as defined above in this Amendment), (c) after giving effect to this Amendment
and the transactions contemplated by the Subject Swap Documents (as defined
above in this Amendment), 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), (d) the execution, delivery and performance
by each Credit Party of the Loan Documents as amended by this Amendment and the
Subject Swap Documents (as defined above in this Amendment) to which it is a
party, and the consummation of the transactions contemplated to occur
thereunder, (i) are within its organizational powers, have been duly authorized
by all necessary organizational action, (ii) require no Governmental Approval,
(iii) do not contravene, or constitute a default under (x) any provision of
Applicable Law the violation of which could reasonably be expected to have a
Material Adverse Effect, (y) the Organizational Documents of such Credit Party
or (z) any agreement, judgment, injunction, order, decree or other instrument
binding upon any Credit Party, including, without limitation, the Senior
Unsecured High Yield Note Documents, and (iv) do not result in the creation or
imposition of any Lien (other than the Liens created by the Collateral Documents
in favor of the Secured Creditors) on any asset of any such Credit Party.
9
4. 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 GE Capital and each of the
Credit Parties;
(b) the Agent shall have received counterparts of the attached
Confirmation of Guaranty, duly executed by Curative Health Services
III Co.;
(c) Holdings and the Subject Swap Counterparty shall have entered into
the Subject Swap Documents (as defined above in this Amendment), and
Agent shall have received a copy of such fully executed documents,
and such documents shall be in form and substance satisfactory to
Agent; and
(d) GE Capital shall have received counterparts of the Risk
Participation Agreement (as defined above in this Amendment) and
that certain side letter agreement between GE Capital and the
Subject Swap Counterparty, in each case duly executed, completed and
delivered by the Subject Swap Counterparty and in form and substance
satisfactory to GE Capital.
5. Reimbursement of Expenses
Each Borrower hereby agrees that it shall reimburse the Agent and the
Lenders 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.
6. 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.
7. 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
Credit Party hereby waives any provision of law that renders any provision
hereof prohibited or unenforceable in any respect.
10
8. 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. Delivery of an executed
signature page hereof by facsimile transmission shall be effective as
delivery of a manually executed counterpart hereof.
9. Effect of this Amendment
Except as specifically amended or modified pursuant to Section 1 and
Section 2 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 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.
[Remainder of page intentionally left blank]
11
IN WITNESS WHEREOF, the parties have caused this First Amendment to
Amended and Restated Credit Agreement and Collateral Documents 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: Executive VP and CFO
▇▇▇▇▇▇▇▇.▇▇▇, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Treasurer
HEMOPHILIA ACCESS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Secretary and Treasurer
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 Co., its
Sole Member
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Treasurer
INFINITY INFUSION II, LLC
By: Curative Health Services Co., 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 Co., 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
CURATIVE HEALTH SERVICES CO.,
a Minnesota corporation formerly known as
Curative Health Services, Inc.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: CFO and Treasurer
CRITICAL CARE SYSTEMS, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: CFO and Treasurer
GUARANTORS:
CURATIVE HEALTH SERVICES III CO.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: CFO and Treasurer
GENERAL ELECTRIC CAPITAL CORPORATION,
as Lender and Agent
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇ III
----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇ III
Its Duly Authorized Signatory
CONFIRMATION OF GUARANTY
The undersigned Guarantor hereby (a) acknowledges, consents and agrees to
the terms of the foregoing First Amendment to Amended and Restated Credit
Agreement and Collateral Documents (the "Amendment"), including without
limitation, the amendments to the Amended and Restated Credit Agreement and the
Collateral Documents set forth therein, and (b) agrees and confirms that its
obligations under the Guaranty Agreement to which it is a party, as amended by
the Amendment, will continue in full force and effect and extend to all
Obligations under and as defined in the Amended and Restated Credit Agreement as
amended and modified by the Amendment.
As of this 3rd day of May, 2004.
CURATIVE HEALTH SERVICES III CO.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: CFO and Treasurer
